Episode 188 - RICS Standard Form of Consultants Appointment

This week we will be talking about the RICS Standard Form of Consultants Appointment. This episode content meets PC2 - Clients, Users & Delivery of Services of the Part 3 Criteria.

Resources from today's episode:

Websites:

• https://www.rics.org/profession-standards/rics-standards-and-guidance/sector-standards/construction-standards/standard-form-of-consultants-appointment
• https://www.rics.org/content/dam/ricsglobal/documents/standards/standard-form-of-consultants-appointment/Explanatory-notes-Standard-form-E-W-April-2025.pdf

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Transcript

Episode 188:

Hello and Welcome to the Part3 with me podcast. 

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I am your host Maria Skoutari and this week we will be running through the RICS Standard Form of Consultants Appointment.Todays’ episode meets PC2 of the Part 3 Criteria.

Appointments Forms as an overview:

Form the legal backbone of professional relationships in construction. They set the rules—scope, fees, liability, third-party protections, and more—between client and consultant. If the terms aren’t precise, both parties face risks of dispute, insurance gaps, or unclear responsibilities. Standard forms help avoid bespoke ambiguities—but the “devil’s in the detail.”

Today, we will focus on the new RICS Standard Form, which now reflects the complex regulatory and commercial landscape post-Building Safety Act, and is aligned with both traditional and design and build procurement.

So let’s explore what the RICS Standard Form is, why it matters, and when you’d use it:

It was published and revised in April 2025, this Standard Appointment is for England and Wales and is recommended for engaging quantity surveyors, project managers, employer’s agents, contract administrators, building surveyors, principal designers (CDM and Building Regs), and CDM Compliance Consultants. Its flexibility suits high-value, multi-disciplinary construction projects, but RICS also offers Short Forms for smaller or specialist commissions.

In terms of how its set up, it includes:

• Definitions and interpretation section 
• Appointment
• Consultants Obligations
• Health & Safety, statutory requirements, design responsibilities and prohibited materials
• Limitations of liability
• Collateral Warranties and Third Party Rights
• Consultants personnel
• Client’s obligations
• Payment
• Additional Services
• Consultants authority
• Insurance
• Copyright, confidentiality and anti-bribery
• Assignment, transfer of rights and obligations and subcontracting
• Termination and suspension
• Dispute resolution
• Notices
• Entire agreement
• Governing law

So that forms the main body of the contract. 

The contract also needs careful completion of:

• Appendix: Covering all project-specific information such as parties, services selected, fee structure, liability caps, third-party rights, and execution format.
• Schedules: where parties should set out their service descriptions for example if its in relation to PD services, Employers Agent and so on(Schedule 1), as well as setting the fee/payment arrangements for example if it will be a lump sum fee, setting out reimbursable costs and expenses, and listing the relevant daily/hourly rates (Schedule 2), and lastly the client brief (Schedule 3) to include a description of the site, a description of the project, budgets, the programme and the client’s objectives.

Tick-box templates for basic services help clarify scope—unticked services become “Additional Services,” chargeable as required. Fees can be lump sums, percentages, or staged payments. Clients must set out full project and site descriptions for clarity.

The narrative structure makes the RICS form easy to use, with accompanying explanatory notes for context. Optional and default provisions including caps on liability, net contribution clauses, and method of execution enable parties to tailor risk allocation and third-party protections to project specifics.

Before we look at the Appointment form in more detail, lets briefly compare the RICS and RIBA Consultant Appointments focusing on their approach, risk allocation, warranty provisions, and practitioner suitability:

When comparing the RICS Standard Form to the RIBA Standard Professional Services Contract, the first notable difference is focus. The RICS form is broader, intended for multidisciplinary consultancy teams including surveyors, project managers, and principal designers, whereas the RIBA contract is architect-centric, structured primarily around architectural work stages and the RIBA Plan of Work. 

The RIBA form offers a thorough schedule of architectural services and stage-based fee options, while the RICS form uses tick-box modularity so clients and consultants can choose which professional services they require. Both forms allow for negotiated caps on liability, usually tied to professional indemnity insurance, but net contribution clauses—limiting liability to each consultant’s sole fault—are more explicitly featured and defaulted in the RICS form. For third-party protections, both contracts can grant collateral warranties and statutory rights, but the RICS form provides more exact options for how these rights are conferred and how many warranties are permitted, always ensuring insurance cover matches obligations. Payment mechanisms are flexible in both, but RICS offers more options for lump sums, percentages and milestone-based payments, whereas RIBA is grounded in work stage fee tranches. BIM and health and safety roles are addressed in both contracts, though the RICS form is more explicit about the Principal Designer and compliance for all statutory roles. Dispute resolution options—such as mediation and adjudication—are built into each, providing modern pathways for resolving claims. Ultimately, the client’s responsibilities, duties of care, and compliance with consumer law are carefully scheduled in both forms, but the RICS contract is typically favoured for mixed professional teams and larger, more complex projects, whereas RIBA’s is preferred for pure architecture appointments and projects following the RIBA Plans of Work. The choice of form depends on the unique needs of the project and the consultancy disciplines involved.

Now moving back to the RICS Standard Appointment form, lets look at key clauses under each key Section outlined within the form, starting with Risk and Liability Allocation:

The form allows parties to negotiate:

• Aggregate liability caps: Usually tied to the consultant’s professional indemnity insurance limits. This cap must exclude liability for death/personal injury caused by negligence, as the law demands.
• Net contribution clauses: These limit the consultant’s liability to only their portion of error. Popular with consultants, but clients may resist, as they reduce options for full recovery if others are insolvent.
• Choice of execution of the contract either having 12 years’ liability for contracts signed as deeds; or 6 years if signed under hand. If executed as a deed the seal must be affixed and authenticated in accordance with the company’s Articles of Association and should be affixed in the presence of two directors or one director and the company secretary. Whereas under hand, the requirement is that the document is signed by an authorised person for the company or partnership. 

Detailed consideration has been given to the allocation of risk between the Client and the Consultant. In common with other standard forms of appointment used within the construction industry, the RICS Standard Appointment includes limitations of liability, some of which may not always be commercially acceptable to the Client, particularly where the Client has complex funding arrangements. It is suggested the Consultant should seek to limit its liability when a service is provided. However, the amount to which liability is limited should be reasonable and take into account the insurance available to the Consultant and the likely cost to the Client should the service be provided negligently. The optional clauses within the Standard Appointment cater for a limitation of liability being negotiated between the Client and the Consultant, and included in the Appendix to the Standard Appointment. 

The default position in each optional clause within the Standard Appointment aims to achieve a balanced apportionment of risk and liability. However, the parties are free to take a different position by choosing a different option. This should help negotiations and avoid the need for specially written bespoke amendments that can render contracts difficult to understand. 

Another key part of the Risks & Liabilities Sections, is relating to the Consultant Duties and Obligations:

Whereby, consultant’s are required to provide a “Requisite Standard” of skill and care—matching professional norms for their discipline. Clauses within the form cover compliance with statutory requirements, CDM duties, BIM management including government mandates, design responsibilities, and instructions. The discipline of the Consultant should be inserted into the Appendix. The scope of the standard of care is set by reference to the Project itself. The form also outlines that the consultant must comply with instructions given by the client. However, where the Consultant is required to assess certain matters between the Client and the Contractor, the Consultant must act fairly and impartially. 

The revised form now also allows for Building Information Modelling (BIM) within the Consultant Duties and Obligations section, setting:

The emphasis on BIM and reflects government requirements for digital construction. The consultant  appointed under the RICS form may be appointed as BIM Information Manager and held to comply with BIM protocol appended to the appointment. The form cautions consultants with minimal BIM experience to consider carefully before accepting this role.

Health and Safety is next outlined under the following section of the form:

Setting the statutory duty of the Consultant to comply with the CDM Regulations, if and to the extent they apply. Where the Consultant is a designer for the purposes of the CDM Regulations, the Standard Appointment allows the parties to make provision for this in the Appendix. The default position is that the Consultant is not a designer for the purposes of the CDM Regulations. However, it is important to recognise that, whichever option is chosen, the Consultant may still be a designer under the CDM Regulations if its Services fall within the relevant remit. Therefore, the parties must consider the point carefully and complete the Appendix appropriately. 

This section also outlines a key part of the form outlining Design Responsibility:

The Standard Appointment allows the parties to confirm whether the Consultant is to be responsible for design and/or for specifying or approving materials. The Appendix should be completed appropriately and, where the Consultant’s responsibility relates only to limited aspects of design/specification, this should be made clear, if necessary by reference to other documents. If the Appendix is not completed, the default position is that the Consultant is not responsible for the design or specification/approval of materials. 

The following Section under the form relates to Limitations of Liability:

Under this section, both parties should note that the Standard Appointment contains no exclusion or limitation of liability in respect of loss of profit or consequential or indirect loss. However, the Consultant should be protected against this risk by the caps on liability and net contribution clauses.  

As such, there is a clause outlining Aggregate cap on liability:

Whereby, the parties should agree an overall financial cap on the Consultant’s liability arising under or in connection with the Standard Appointment. Clients may be reluctant to agree financial caps on liability and, on certain occasions, a third party (such as a bank) might insist the Client does not agree on such financial caps. It is, however, common for parties to agree some form of financial cap on liability, although the level of that financial cap is generally subject to commercial negotiation.

The Appendix should be completed to state whether a financial cap on liability is agreed and, if so, what that financial cap is. English law prohibits any limitation on a party’s liability arising from death or personal injury caused by negligence and, therefore, this is specifically excluded from the financial cap, meaning that liability for death or personal injury will be unlimited. 

It is common for the amount that the Client is able to recover from the Consultant to be limited to the level of PII maintained by the Consultant because the Consultant may not have the funds to pay the Client except from its insurance. Therefore, one method by which the amount of a financial cap on liability could be calculated would be by reference to the amount of PII that has been agreed will be held by the Consultant, as this could directly affect the amount the Client is likely to recover as damages from the Consultant. The Services being provided and the likely consequence of negligent delivery, together with the amount of agreed Fee for the Services, can also provide context as to what a reasonable financial cap on liability should be. 

The default position is that the Consultant’s liability is capped at its level of PII as specified elsewhere in the Appendix. For a different level of cap to apply, or for the Consultant’s liability to be uncapped, it is essential that the appropriate section of the Appendix is completed. 

In addition to the Aggregate Cap on Liability, this Section also includes a clause on Net Contribution:

Whereby, in the absence of a net contribution clause, all members of the Professional Team are usually jointly and severally liable for errors or defects arising from their services. This means that the Client may be able to recover all of its losses from one consultant rather than others who were also at fault.

The purpose of a net contribution clause is to introduce a concept of fairness from the perspective of the Consultant where the Consultant should only be liable to the extent it is actually at fault. With an effective net contribution clause in place, the Client would not be able to recover from the Consultant losses that were the fault of another member of the Professional Team. Accordingly, net contribution clauses expose the Client to the risk that it may not be able to recover the full amount of its loss if other members of the Professional Team who were at fault do not pay. For this reason, such clauses are often resisted by clients. 

The net contribution clause in the Standard Appointment includes provisions that cater for design and build forms of contract as the Contractor is likely to be fully responsible for design under a design and build contract arrangement. 

The Standard Appointment allows the parties to agree whether to include a net contribution clause. If the Clause is to apply, the parties should complete the Appendix by listing the other professionals/ contractors whose fault is to be taken into account in considering the extent of the Consultant’s liability. 

The Appendix must be completed to show whether the net contribution clause applies to the Standard Appointment. If this part of the Appendix is not completed, the default position is that the net contribution clause will apply. 

Moving onto the next Section under the form, Section 6, covers Collateral Warranties and Third Party Rights:

Clients can require collateral warranties for purchasers, tenants, funders, or select direct rights under the Contracts (Rights of Third Parties) Act 1999. The purpose of a collateral warranty is to create a contractual link where none would otherwise exist between the Consultant and the beneficiary of the warranty. This allows the beneficiary to take legal action against the Consultant for breach of contract if the Consultant breaches the terms of the warranty. Forms of warranty and limits on numbers and scope should be appended. The Appendix allows the parties to choose whether warranties are required and, if so, to whom they should be given. If warranties are required, the default position is that they will be provided to any Purchaser, Tenant and Funder. Consultants should be aware of warranty obligations not to exceed those in the core appointment, and must align with insurance cover.

Now relating to Third Party Rights:

The standard position under English law has been that a contract can only grant benefits upon those who are parties to it. However, the Act now allows third parties who are not parties to a contract to sue under it if it grants a benefit on them or identifies them, either by name or class, as a beneficiary or potential beneficiary. 

The Act makes it possible to grant rights on intended classes of beneficiary such as funders, purchasers and tenants without the need to execute Collateral Warranties. The Standard Appointment allows the parties to use this method of granting rights on third parties. Again, as with the provision for Collateral Warranties, the Appendix allows the parties to specify who should benefit from such Third Party Rights. The default position is that Third Party Rights, if required, will be vested in any first Purchaser, any Tenant and any Funder.

The parties should agree the clauses in the Standard Appointment on which third parties will be able to rely. These should be set out in a separate document, which should be appended to the Standard Appointment and initialled by the parties. As with the forms of Collateral Warranties, the forms of Third Party Rights must be consistent with the terms of the Standard Appointment and must not place any obligations or liabilities on the Consultant that are greater or more onerous than under the Standard Appointment. Its again very important that consideration is given to the relevant terms of the PII cover that the Consultant has. 

Now, let’s move onto the next Section under the form, relating to Payment:

The payment provisions in the Standard Appointment reflect the requirements of the Housing Grants, Construction and Regeneration Act 1996. 

The form allows parties to choose the fee to be lump sum, a percentage of the build cost or other fee structures, with payment schedules keyed to dates or milestones. Relating to invoices, the form states the consultant must submit a VAT invoice to the Client accompanies by supporting documentation and the invoice must specify the amount the consultant considers is due on the payment due date and the basis on which the amount is calculated. The final date for making payment will be 28 days after the due date for payment. The client is also allowed to issue Pay Less Notices if they consider the amount due as inaccurate. The Standard Appointment also allows for the Fee to be adjusted if the performance of the Services by the Consultant is materially delayed and/or disrupted as a result of a change in the scope, size, complexity or duration of the Project, or for any cause outside the Consultant’s reasonable control. In these circumstances, the Consultant should give notice of its intention to make a claim for an adjustment of the Fee as soon as reasonably possible. The Consultant should also give a written estimate of the proposed adjustment to the Fee and of the likely effect on the performance by the Consultant of the Services and on the Programme.

Now in relation to Additional Services:

Anything listed in Schedule 1 is classed as “Additional” and chargeable if required later. Hourly/daily rates must be set out within the form for transparency and key personnel named in the Appendix and their rates should be specified upfront.

The next Section under the form, relates to Insurance:

Under this section, the consultant should complete the relevant Appendix specifying their level of insurance required and must specify if the insurance is on an each and every claim basis or on some other basis. Some PII policies exclude or set aggregate limits for certain types of risk, such as contamination and pollution, and this should also be made clear in the Appendix. 

The default provision is that a client who omits to complete this section of the Appendix may gain some protection as long as it appoints a consultant that is affiliated to a recognised professional body, such as RICS. The position of the Consultant is in turn protected by the provisions that allow the parties to renegotiate the required level of insurance if market conditions change. 

It is important that insurance is maintained throughout the period of the Consultant’s liability under the Standard Appointment because PII usually operates on an annual ‘claims made’ basis. 

The next section of the form covers Copyright:

The Standard Appointment recognises that both the Consultant and the Client have a legitimate need for access to and use of copyright material created by the Consultant during the performance of the Services. The Standard Appointment provides that copyright in all Documents prepared by or on behalf of the Consultant belongs to the Consultant. While maintaining ownership of copyright, the consultant grants the Client, without additional charge, an irrevocable licence to use the Documents for any purposes relating to the Project, including a future extension of the Project. However, this does not include a licence to reproduce the designs for any such extension. The licence includes a right to grant sub-licences to third parties. 

The Consultant has no liability to the Client for use of the Documents for any purpose except that for which they were originally created. If the Client fails to pay any fees properly due to the Consultant, the Consultant may, if it wishes, suspend the Client’s copyright licence provided it gives the Client seven days’ notice. This is not a permanent revocation and the suspension is lifted upon payment being made. 

And lastly, the last few sections of the Standard Appointment cover Termination and Dispute Resolution: 

The Client is entitled to suspend the Services for any reason after giving the Consultant seven days’ notice of the intention to suspend. The Consultant is also entitled to suspend provision of the Services if the Client fails to make the payments that are due to the Consultant by the final date for payment, but only after providing the Client with seven days’ notice of the intention to suspend and the ground(s) for doing so. 

Termination can be pursued by either party if breach of contract , insolvency, or persistent non-payment have occurred. Suspension rights mirror construction industry norms, but must be properly documented.

If the agreement is terminated or suspended, the Client must pay the Consultant all fees accrued up to that point, including a fair portion of the next instalment and any additional service fees for work already done. The Client must also cover the Consultant’s reasonable direct costs and expenses arising from the termination or suspension, unless it was caused by the Consultant’s breach. If services resume after suspension, the Consultant can recover reasonable restart costs. Upon termination, the Consultant must stop work promptly, minimise disruption, and hand over project documents once all due fees and copying costs are paid.

Now relating to Dispute Resolution RICS requires all its members who are sole principals, partners or directors of firms that offer surveying services to the public, to have a complaints-handling procedure that meets an agreed minimum standard. Members should be able to provide to Clients a written copy of that procedure on request.  The form offers dispute resolution proceeding to be carried out by utilising a number of routes, such as negotiation, mediation, adjudication, arbitration, and litigation. Allowing parties to choose the most suitable forum for them. 

So that’s briefly a rough run down of the Standard Appointments structure. To conclude todays episode, some recommendations to the contracting parties before concluding the form are to:

• Meticulously complete all Appendices and Schedules as default provisions can sometime leave consultants or clients exposed to obligations or liabilities not intended.
• The parties should explicitly agree third-party warranty provisions and liability caps for clarity and fair risk sharing.
• Get legal support for project-specific nuances, especially concerning insurance, execution method, or consumer clients.
• And never rely solely on explanatory notes for legal certainty; only contract terms are binding.

To sum up what I discussed today:

• The RICS Standard Appointment is a robust contract template created for engaging a wide spectrum of construction consultants—including quantity surveyors, project managers, employer’s agents, principal designers, and more—across England and Wales. It has been updated in April 2025 to address evolving regulations, such as the Building Safety Act, making it highly relevant for today’s complex projects.
• In relation to the RIBA Appointment form, the RICS Standard Appointment is a flexible, multidisciplinary contract suited to a wide range of construction consultants and complex projects, while the RIBA form is architect-focused, structured around architectural work stages and the RIBA Plan of Work. The RICS form’s modular approach better accommodates mixed professional teams, whereas the RIBA form is tailored for pure architecture appointments
• The form uses tick-box schedules and appendices, allowing parties to tailor scope, services, payment arrangements, and risk management provisions to the needs of each project. This modularity means clients and consultants can easily customise the contract for multidisciplinary teams or specialist roles without resorting to bespoke amendments.
• The RICS form incorporates essential provisions for liability caps tied to professional indemnity insurance, net contribution clauses, careful allocation of design responsibility, and third-party protections like collateral warranties. These default and optional clauses are designed to fairly distribute risk and safeguard everyone involved.
• Accompanying explanatory notes and structured schedules make the RICS form user-friendly, helping parties understand what is required for compliance—especially around statutory duties (such as CDM regulations), health and safety, BIM management, and insurance obligations.