No matter how many different ways that various financial arrangements appear to be between the Customer and their commissioned experts, designers and contractors, there are always unanswered questions and unforeseen circumstances that crop up that have apparently not been covered in some article or another.
Looking through The Landscape Library, where there are many articles in regard to payments, finances, charging for your services, getting paid in a timely manner, how much to charge for different skills, but there is always one angle that seems to have been missed! Not because of lack of diligence on the part of the authors, but because fresh situations constantly throw up new problems. This article has been produced as the result of a recent webinar held by The Association of Professional Landscapers, where a couple of apparently obscure sets of circumstances arose on projects, and advice was sought regarding potential problems.
At first sight, the agreements between a customer, designer and contactor are simple and straightforward, yet on occasion, an unusual style of contract is formed. Please note that this article does NOT include any references to Contract (Design Management) Regulations 2015) to avoid complicating and confusing what are separate issues.
For the sake of regularity and to put the matter to one side, the term Project Management is often used – or rather, misused, when it comes to Design and Build projects in particular. The definition of Project Management is very simple;
‘Project Management is the practice of initiating, planning, executing, controlling and closing the work of a team to achieve specific goals and meet specific success criteria at the specified time. This information is usually described in a project document, created at the beginning of the development process’.
Hence Project Management begins and ends with a specific brief provided by a specified person or group, given to a specified person or group providing authority to undertake the full implementation of a scheme from concept to completion.
A Garden Designer is highly unlikely to be involved in carrying out such a wide and diverse amount of varied skills and compliances.
A Garden Design and Build Company may well act as Project Developers, but only in exceptional circumstances, say a large multi-disciplined practice with separate divisions operating under one corporate umbrella, and even in those circumstances, the Project Development Team would be working under a separate contract within the Main Contract, due to the responsibilities that are inherent in undertaking this specialised discipline.
The Project Manager would be entrusted with creating a system of finances, holding the full amount of money payable by the customer for the total scheme, and having authority to release certain funds under a specified regime comprising work schedules, agreed rates and payment tranches against works completed, materials on site or after completion of various elements within the main contract. In other words, acting as the customers Agent in their stead. I am talking about large firms such as Gillespies, Arup, BDP, LDA etc.
In normal circumstances therefore, and almost certainly in the domestic sector, the term Project Manager should not be employed.
At all times, the Customer normally remains the constant source of finance and payment making. Designers or Contractors apply to the customer for money, either as a Deposit or Booking Fee, Mobilisation Payment in advance of a project start date or making regular payments against set circumstances i.e. stage payments etc.
Everybody employed on a scheme as a direct contractor or designer, should invoice the customer. Every Contractor should pay their direct labour and any sub-contractors that are working for their company.
Under no circumstances should the customer pay, or be expected or asked to pay for any invoices that should be due under the contract provided by either the designer or main contractor. Any invoices that become due to any Party engaged on a site under the direction of the designer or main contractor must be paid by that Party. The customer should not pay directly for anything salient to the contract e.g. paving, bricks etc, as potential problems with ownership, warranties and defects become very difficult to resolve. Even colour variations, meeting delivery dates and damages in transit can create delays on the project, resulting in claims for additional costs by the Contractor as they did not supply the materials.
On some jobs, a Third Party may be involved e.g. Structural Engineer or Site Surveyor. It is best that they are paid directly by the customer as their responsibility will probably be to the site owner. Perhaps a Ground Water Survey is required, and it is good practice for the designer or contractor not to take ownership for it, merely receiving a copy for their records and qualified use.
These Third Party arrangements may be used when drawing up specification and decision making, and it is sensible that the liability for any recommendations lays with the author, who will be covered by their Professional Indemnity Insurance. These responsibilities may not be transferred between Parties for the sake of good governance.
Ownership of these paralegal documents properly remains with the customer, and not the designer or landscaper. All reference made to their information and recommendations should be noted in writing and accredited on all drawings and documents, whilst clearly stating their provenance.
Any specification and dimensions that relate to strength and suitability should be produced by the designer based on all known factors; either those that have been identified by Third Parties or their own due diligence and test findings, and noted in all tender documents, especially in respect of plans and drawings from which other information may be extrapolated e.g. directions given to the Build Contractor in the form of costings sheets or Estimates.
The responsibility for all specification must lay with the Designer (or Design & Build Contractor), unless it is clearly and expressly stated in writing, including on the drawings and plans, that the specification is subject to written agreement between the Designer and Contractor, that matter will be in the hands of the Contractor to make their decisions. Simply stating that no one should take measurements from these plans is not sufficient to offer any waiver to the Designer.
If a Designer has taken measurements from drawings produced by others, including previous plans provided by the customer, the designer should take care to state that they are not responsible for their production or accuracy, and that all dimensions must be checked on site. This is not a request for a waiver, merely a statement of fact.
This is not by way of abdicating responsibility, but to explain the fact that they have not personally been responsible for their production and therefore cannot guarantee their accuracy. Unless this matter is placed in writing and clearly identified, liability may still be retained even partially. (This is to ensure that no professional designer can simply absolve themselves from liability for errors that should have been obvious to an experienced eye.)
Similarly, materials and products should be specified by the Designer, including their uses and suitability. If a designer is not sure of their recommendations, but merely the effect they are wishing to achieve for a design idea, collusion between the customer, designer and contractor make take place, and such products and materials agreed between all Parties. It is recommended that a Products Library is produced and held on site. This Library should contain all products deemed important to the visual design (the customer should not be involved in the selection of products relating to technical matters; that will be deemed to be outside of their reasonable expertise) and shown to the customer in all states i.e. wet and dry due to potential colour variations. All products should be identified by name, code or material and signed in indelible ink marker by the customer, designer and contractor as being those accepted and selected for use on the job.
It is also strongly recommended that all documents that arrive with the materials are retained by the Contractor by way of evidence that the instructions contained therein were adhered to at the time of construction. This insurance policy may well become invaluable in future years should a problem arise and product or construction issues are raised in a dispute.
Once the contract documents have been drawn up, and specifications and dimensions produced, the designer should create suitable tender documents for use by the Contractor.
This exercise should also be carried out in house if necessary, as the designer – even a Design and Build employee – should retain responsibility for their choices and decisions. This is because it is the only method of producing a finite set of documents against which to price for a scheme, and to ensure that the Landscape Team in the field understand their instructions.
If, for any reason, any alterations, additions, reductions, changes, product subsequently deemed unsuitable in the event for whatever reason; colour changes or any other material factor be required by the customer, designer or contractor, these should be dealt with by written Variation Orders, and any ramifications regarding costs (increases or decreases) agreed between the customer and Contractor. The Variation Order Book should be a series of sequentially numbers dockets, relating to that project alone and filed as such.
All financial arrangements should be between the customer (Master) and Contractor (Servant) with no Third Party involvement (Designer), unless the Designer has been retained by the customer to act formally on their behalf. In such cases, a written Letter of Instruction, should be drawn up by a Solicitor before the original contract is signed, giving the Designer the power to act as their Agent in matters of finance. (This is not uncommon where the customer is living abroad and cannot be available for periods of time. In the case of Design & Build Companies, a Third Party e.g. Solicitor or Agent may be employed by the customer for that role).
Indeed, the customer may give Full Authority over the whole design element of the project to the Designer whilst acting on their behalf (agens autem aliquis de vobis for all Latin Legal fans, otherwise known as an Advocate) but again, this must be agreed in writing and accepted by the Contractor before the contract is signed. This is NOT the same as Project Management.
There is a very simple reason why nobody has ever managed to produce the definitive manual of running a Garden Design practice, a Design & Build Landscape business or any other type of Landscape/Horticultural operation. The nearest I got was writing The Landscapers Survival Manual!
It is simply too complicated! We are Builders, Designers, Horticulturists, Gardeners, Landscapers, Drainage Experts, Tree Surgeons, Plantsmen and women, Stone masons, and a million other trades all rolled in to one.
And yet we have to live in a world dominated by the Law, seemingly expanding Regulations and Orders, Controls and Restrictions, and there could never be a definitive publication, as it would be out of date before it went to print.
So, keep asking questions, and The Landscape Library will try to keep up with endeavouring to answer them!