Continuing on from the last post, I have a question you might help me with:
* When the developer got the money from the bank is it just a big wad of money for the whole development?
If it is this explains the lack of bank draw-down certificates that are required for everybody else (even to do a humble extension), it is on this draw-down certificate that the architect certifies that:
“I have supervised construction to date…
The construction to date is in accordance with the Planning Permission / Building Regulations…”
(Bank of Ireland Mortgages)
It would make an interesting case if this was completed by an insured professional.
btw, the Certificate used by the architect was probably RIAI 1A, where there was no on-going inspection/certification and certificate of compliance (on visual inspection only, where hidden items can’t be verified) was issued on completion. Front page of certificate below which explains clearly what the architect is certifiying. A ridiculous situation (as I’ve repeated earlier it’s impossible to certify under these circumstances):
Form 1A Cover
So what could have been done? The Form1B is used when the architect certifies compliance and is involved throughout the design and construction stage; this involves regular inspections and undoubtedly should have uncovered the Priory Hall defects earlier; obviously the builder/developers didn’t want to pay for this ! Who needs an architect anyway !!!! (Cover of Form 1B below):
Form 1B Cover
Indeed, but Mark, the prudent architect inks in “in accordance with my terms of appointment ” or something similar on the bank drawdown form, to more specifically note what was inspected etc. It’s a daft system, but when the RIAI tried to lobby to Government on anything that does not tally with the civil service view of world, they get ignored. I am thinking of the new Government Contracts, widely responsible for the wholesale shafting of subcontractors.
Interestingly, just completed BOI Bank Cert and I change wording to:
“I have inspected and certified in accordance with RIAI guidelines…”
Things changed after Stardust tragedy, hopefully we’ll get a proper Building Control system before any lives are lost. The press makes it look as if the architects love self-regulation – as far as I’m concerned nothing is further from truth – please give me a Building Control system that properly inspects and certifies drawings prior to construction (not just for Fire Certificate applications) and then conducts regular inspections. It’s almost as if Ireland doesn’t even know, or wants to completely ignore how the UK does Building Control!
The architect shouldn’t have done business with this client. Surely an experienced architect knows enough to avoid that fatal mistake, or he simply doesnt care. Second fatal mistake: He signed the Opinion. He should be convicted for negligence. The RIAI must sanction its members. I have said this before.
The certificate is very clear concerning the responsibility of the architect:
“does not relate to elements of the construction that are covered up, inaccessible or otherwise obscured from view”
It appears that the problems are those that fall into this category and it seems that the architect did nothing wrong. This does not negate the ridiculous situation having effectively a completely worthless certificate of compliance foisted upon architects by a weak RIAI, pathetic Law Society and greedy builder/developers.
The Architect’s Certificate/Opinion of Compliance itself is not implicitly worthless, as I have pointed out before, if it it issued by an architect acting with a degree of integrity.
Any document may be found to be worthless, if it found later on that it has misrepresented the truth.
The issue is not the document, but the integrity of the person issuing the document.
I agree that the RIAI needs to get a firm grip on this matter, or see its credibility as the competent body undermined.
Let’s move this discussion from the level of an informed layperson and into the realm of the professional architect.
Were any Interim Certificates for Payments issued by the architect?
Quite apart from the Opinion of Compliance with its “visual inspection only” clause, there is the corollary and far more significant issue of interim or stage certification of monies.
These monies should only be released by the architect after an assessment of work completed and materials employed in construction on side.
The ball starts rolling with an Application for Payment issued by the Main Contractor.
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The architect cannot rely solely on a Drive By Assessment that rests on the quantum of materials on the site.
For the inclusion of materials into a building contract sufficient to ask the client to pay for them, they must be “built in” and have become part of the building.
Otherwise the client may be subject to an unpaid sub-contractor taking materials not yet built in and for which he has not be paid off the site and the client having no lien on the materials he understands he may have already paid for.
This relates to the old canard of builders invoicing for work not completed and materials “present and on site” – in some cases they will try to invoice for materials “on the way” or “to be delivered to day”.
People can argue that with a builder developer all this is mere detail, but I have found that in a lot of cases the old relationships between separate companies persist, its just that the parties building do not want what they see as the “interference” of the architect.
Interference or not, the architect is governed by contract law which is well established in Ireland and the UK in how and when and for what purpose his certs can be issued as noted above.
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The implications of the above is that the architect must inspect and see that the materials are built in – this is implicit in terms of every Stage Cert or Interim Cert.
This is especially so in relation to the issue of the Penultimate Certificate, which issues around the time the Certificate of Practical Completion issues together with the First Moiety of Retention and Commencement of the Defects Liability Period.
If close inspection of the works – albeit “visual” – has not occurred at each time the architect certifies monies, how has he reached the conclusion that monies are due to be released?
This is the hidden implication of certification of monies during the building programme, even where the architect only supplies a “visual inspection” cert at the end – he MUST have inspected prior to the issue of each certificate!
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How else would he know what he is certifying?
A possible rebuttal to this is that he would rely on the Recommendation for Payment issued by the Quantity Surveyor [QS], but this is not the case.
The quantity surveyor – assuming he is diligent – knows as much if not more about the law of building contract and contract administration as the architect.
He cannot just issues his Recommendation for Payment without foundation – he must inspect and form an opinion of the rate of work and the quality of work done.
The rate of work is to for ma reasonable opinion of the quantum the builder could reasonable ask for between the dates of the original application and the date the QS Recommendation for Payment issues.
In a busy QS office there may be a few days delay before the Recommendation for Payment issues and on a large continuing contract the Contractor could be several tens of thousands behind – some parties understand there will be some “fat” in the recommendation to allow for this.
This is where the architects inspection has to come into play. I have monitored on project where a recommendation to pay included 24 fore doors. When the architect inspected there were only 9 installed.
There was no intention to deceive, just an assumption of the continued installation rate and a later delivery of 15 doors – which the architect “caught” and amended the Certificate for Payment to reflect this.
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So even where you have a QS issuing recommendations to pay, once the architect is issuing interim certificates for payment, there is a responsibility on him to assess what work has been completed to date on site.
And what kind of work is the Employer paying for?
Competent work.
Q.E.D.
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For the record, these are my working practices and points of law as I understand them – happy to stand corrected.
I think the problem will be that in a lot of cases (and I suspect Priory Hall), the construction falls outside of the standard terms of engagement with easily defined, contractor, client , architect & QS. I may be wrong (hopefully we’ll find out) but what you have is a.Client,contractor & developer as same person b. Bank dishing out big money to the cronies and c. The architect only employed at the beginning & end – a recipe for disaster
I don’t know where the cronies come into it Mark, but I think you may be right on the rest.
The issue however is still one of duty of care even where there is no formal structure or building contract and all other entities should be standing over their work
There is likely to be two companies as a minimum, a developer company which sells the units and a building company which builds them.
There is a duty of care on the architect to inspect and to ensure that the developer only pays for compliant work from the builder.
When certifying, the architect should cover himself and the users by ensuring that officer of the building company should certify the built work is in compliance for inclusion in the Schedule A Assurances.
Reference to cronies was that everybody seemed to be in each others pockets; interesting point but it should also be noted that the architect is only insured for the work he undertakes on a project; easy to say that he should inspect but if he has not been appointed to do such work then he is at risk. The architect should only do the work for which he has been appointed and as we’re now seeing the developments should have had frequent inspections through the build and haven’t.