When The Designer Disappears from a Project
In what is becoming a depressingly familiar phenomenon, a couple of recent examples of the problems that occur when a designer decides to quit from working on – for whatever reason – a landscape scheme they have designed, specified and produced working drawings for, at an earlier stage than that previously agreed in the contract formulation and Construction (Design Management) Plan as part of the enabling team.
Both projects were in the region of £100,000 to £200,000 (plus VAT) involving complex technical solutions to site issues, whereby the customer had opted to continue using the services of the Designer as Project Monitor and adviser, (not described in the CDM Plan contract as being the Project Manager) to answer any questions the landscape contractor may have as the job evolved.
Working under a comprehensive contract document, including Variation Orders to allow for any unforeseen problems, everything was in place to protect the customer, designer and contractor.
After a short time, it became clear that some of the design specification was inaccurate, with missing details and incorrect measurements and levels, once the site works were under way. The landscaper had an increasing number of queries, that went unanswered by the designer. Messages were left, and requests for information and site visits failed to elicit information and advice.
The contractors could not make any progress. The customers became frustrated and angry, unable to make contact with the designer. At no stage did the designer make contact to withdraw from the contract……………just disappeared off the radar.
In both of these cases, the contractors – wishing to complete the project as professionally as possible – continued with the works, trying to make sure that every part of the complicated design was correct, whilst making a few errors in attempts to sort things out. Requesting site visits by suppliers and manufacturers, a flurry of emails sent out and advice sought from all quarters, with varying success in an attempt to gain answers to allow work to continue.
Ultimately, the works were completed, at great cost in time and treasure to the contractor in working out the many design errors, which had naturally expanded, compounded by various trials and errors in the original specification.
In the meantime, the customer had become frustrated with the contractor, through no fault of their own. Large sums were demanded as retention due to the various alterations that were needed to complete the work, which did not align with the original contract specification, and the client wanted assurances and insurance against future problems, all funded by the landscaper.
I make no judgement on the contractors, who only wanted to complete the job and get paid. Similarly, the customers only wanted their garden landscaped in a professional manner.
However, when working as a contractor, it is vital that you work with the contract. The written, specified document that has been produced precisely to protect all Parties from the problems that occurred in these cases. Once you step outside of that protective shield, you are wide open to expensive, ongoing and unnecessary legal problems.
Better by far, to work with terms of the contract. Once it became clear that the designer was no longer performing their elected and designated part of the contract, if the landscaper had called a halt to the working programme – as the situation surely warranted – and insisted that the client engage another professional to take over the project to replace the missing Team Member, then the problem would have been passed back to the client, and not landed on the shoulders of the landscaper.
Bear in mind, that under the CDM Regs, the customer is responsible to all matters concerning the well-being of the site management. Once a Designer has been appointed in writing that responsibility is assigned to the Principal Designer. That title is a serious responsibility, and should be charged for accordingly.
If and when a designer is no longer carrying out their legal duties, the responsibility reverts back to the customer, and should not be passed on to the Contractor without a fresh contract being in place, with full responsibilities clearly laid out in that document.
In this instance, the landscaper will become Principal Designer and Principal Contractor, able to procure detailed drawings, plans and specification from Third Parties as deemed necessary to complete the project, charging appropriate fees and monitoring details such as insurances and warranties as applicable. These charges may include payments to other experts and professional bodies who are asked to provide technical advice and information.
They should not be forced into taking on these responsibilities as part of their duties as landscape contractors, no matter how skilled and efficient they may be, as these are separate duties that require detailed explanation and contractual matters such as Sunset Clauses incurring Project Management charges and fees.
I suggest that you revisit your Terms and Conditions to see if you are covered in the event of the (unexpected) loss of the services of the project designer at any stage in the works programme, and revise them accordingly.
