Looking for a new agreement for the performance of your professional services? If so, why not consider the new Consult Australia Contract!
In November last year, the Consult Australia Guideline Terms of Agreement were replaced with a more “consultant friendly” new Consult Australia Contract (November 2019) for the engagement of professional consultants. This Contract can be used broadly by consultants across various disciplines, projects and practice sizes. It comes in a one-page or four-page document form, on the same terms, just a different format.
The new Consult Australia Contract contains a number of protections for professional design consultants including:
If you are being engaged as the “Consultant” under the new Consult Australia Contract, in its unamended form, it is very unlikely to give rise to any of the usual exclusions such as “assumed liability” or “waiver of rights” exclusions that generally form part of most professional indemnity insurance policies. On this basis, you can see the appeal of using such an agreement to be engaged under for various projects, especially where your client is another professional consultant who would have access to this contract.
But what if you are asked to engage a sub- consultant? In a perfect world of risk management, ideally the Client would engage any specialists directly. However, if you are required to engage sub-consultants, the best course is to engage them on “back to back terms” (i.e. on the same terms as you have been engaged under for the project).
If you have been engaged under the new Consult Australia Contract (and therefore would be engaging the sub-consultant as the “Consultant”, under the same terms), it would be important to reconsider this contract from the other perspective of you as the Client. Some of those more favourable aspects, may become more problematic once you are no longer the “Consultant” for the purposes of the sub-contract. For example, you might choose to delete Clause 10, as it would not be advisable to retain the limitation of liability in favour of your subconsultant. By retaining this clause, it may expose you to liability for the entirety of a loss suffered by a third party over and above that limit in circumstances where such liability would have otherwise been in part or fully recoverable from your subconsultant. If the clause remained, it would most likely invoke the ”waiver of rights” exclusion generally present professional indemnity insurance policies and may lead to uninsured losses.
The new Consult Australia Contract refers to other documents such as briefs or scopes of services, so it will also be important to make sure that the parties see and approve these. Also, make sure to check that all annexures are correctly described and attached to the Contract, sign the Contract (ideally before you start work on the project) and remember to keep a copy of the executed agreement together with all its associated documents in an individual part of the project file.
For architects in some states, in order to comply with your code of professional conduct, you may need to have your solicitors draft some amendments to make sure that this agreement is in line with the relevant regulations. For example, in Victoria under Schedule 1, Architects Regulations 2015, Victoria Architects Code of Professional Conduct, you will need to make sure that you include your registration number and that you have the right to terminate the agreement if you reasonably believe your services would cause you to contravene the Act, Regulations or Code.
The new contract is free for Consult Australia Members and available for a fee through the Consult Australia Bookshop through the following link https://www.consultaustralia.com.au/publications/publication.aspx?id=2281
informed by Planned Cover