The process leading to the 2017 edition of the main ACE form of appointment and related documents started two or three years ago. It arose in part because of a persistent market response that the 2009 editions (as revised) were too consultant friendly and perhaps not easy to use in terms of layout and style.
We had to come up with a solution that was logical, user friendly and allocated risk in a balanced way – normally placing it with the party best able to manage the risk in question; or, in keeping with the Government Construction Strategy, managed in a way that requires the parties to collaborate in identifying risks early and in finding an appropriate solution. We needed also to reflect modern trends such as BIM and Soft Landings.
What follows are a few examples to illustrate how we have sought to achieve this.
Structure
We started with the layout of the agreement. PSA 2017 moves away from the multiple parts approach of the 2009 edition, which required extensive navigation. Now all operative provisions are at the front of the document in the “Terms of the Agreement” with consultant’s, client’s and joint obligations clearly delineated. All contract data is inserted in the schedule that follows and includes relevant alternatives in the event the client is a contractor. PSA 2017 also contains extensive user guidance notes, which are bound into the purchased agreement.
Balance of risk
We then developed the content with our overarching aims in mind. Balance of risk was an early consideration. Clients of all types will be pleased with the new:
- Joint collaboration and early warning obligations (clause 4) as well as the new consultant’s obligation to notify the client where any instruction or change will impact the programme or level of fees (clause 2.3). While highlighting the need for vigilance by the consultant, we felt these provisions were consistent with allocating risk with the party able to manage it.
- Elevated skill and care duty wording in clause 2.3 and the express requirement not to specify or approve deleterious materials in the design.
There is no longer a right on the part of the consultant to revoke or suspend the licence to use the consultant’s design, which was unpopular with clients using the 2009 edition. That said, the consultant may still suspend its services in specified circumstances under clause 13.
Net contribution and limitations of liability
PSA 2017, as with the 2009 edition, contains a net contribution clause, although it has been simplified (clause 10). There are now clearer provisions for agreeing caps on liability and the parties are encouraged to discuss and agree an appropriate cap alongside the discussion with regard to the level of professional indemnity insurance cover the consultant will be required to maintain. Notably, the liability cap is expressly worded to include any liability that may arise under any collateral warranties given to other parties by the consultant, which should be welcomed by insurers.
PSA 2017 now contains a mutual exclusion of liability for indirect losses, losses of profit and business and consequential losses suffered by the other party, which is consistent with other forms of appointment in the industry.
Reflecting modern developments
In all of the new documents we have sought to respond to modern and emerging practices and standards. For example, PSA 2017 contains a mutual obligation to comply with any agreed BIM protocol (clause 17). It has rightly been pointed out that the parties will need to check any protocol carefully and avoid any misalignment with the provisions of PSA 2017.
Similarly, clause 18 contains anti-bribery obligations on the consultant, often a specific requirement in modern procurement.
Schedules of services
The new ACE Schedules of Services are aligned to the RIBA Plan of Work 2013 stages, an issue that simply had to be addressed from the previous versions. Furthermore, the schedules are designed to accommodate and recognise the various emerging ways of providing information on the project, including BIM. In the MEP engineering services version, which will go to print shortly, there are now optional services that can be used where the client adopts a Soft Landings strategy. Lastly, we think the introduction of core and optional deliverables at each work stage in the new schedules will provide welcome clarity to clients and consultants.
That is our take. We look forward to hearing feedback from users.
