quantity surveyor's liability during pre tender stage asmah alia bt
TRANSCRIPT
QUANTITY SURVEYOR’S LIABILITY DURING PRE TENDER STAGE
ASMAH ALIA BT MOHAMAD BOHARI
UNIVERSITI TEKNOLOGI MALAYSIA
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QUANTITY SURVEYOR’S LIABILITY DURING PRE TENDER STAGE
ASMAH ALIA BINTI BOHARI
A project report submitted in partial fulfillment of the
requirement for the award of the degree of
Master of Sciences (Construction Contract Management)
Faculty of Built Environment
Universiti Teknologi Malaysia
NOVEMBER 2009
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To my beloved parents,
Fiancé,
Family and Friends.
Thank you for your support, guidance and everything.
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ACKNOWLEDGEMENTS
With high gratitude to Allah S.W.T. who gave me the ideas and physical strength
in preparing this master project. This project would not have been completed without the
support and encouragement from the various people involved. My deepest gratitude to
my supervisor, Mr. Jamaluddin bin Yaakob for his guidance, advice and support in
completing this master project.
I am also indebted to all the lecturers of this course (Master of Science in
Construction Contract Management) for their kind advice during the process of
completing this master project and to my course mates, thank you so much for the morale
support.
Not forgetting my parents, Hj Mohamad Bohari Bol and Hjh Darot Kassim, my
dearest fiancé and my beloved family, thank you so much for the tolerance and support.
This appreciation notes are also dedicated to all the parties involved who have
provided me with great cooperation that I really need in completing the master project.
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ABSTRACT
Quantity Surveyor is one of the professionals that normally involved in the pre
tender stage of the construction development. The duties of quantity surveyor the pre-
tender stage include preparing cost estimate, measuring quantities, preparing bills of
quantity and giving suggestion on credible contractor to carry the construction project.
The quantity surveyor will require delivering his duties with reasonable skill and care.
In recent time, there have been many allegations against the professionals by clients for
contractual negligent and by third party under the law of tort due to breach of duties by
the quantity surveyor in performing his task at the pre tender stage. This research seeks
to examine liability of quantity surveyor during pre-tender stage in term of producing
cost estimate, measuring quantity, preparing bills of quantity and giving suggestion on
credible contractor to carry the construction project. The analysis was carried out by
referring to relevant law cases. This study found that generally, the professional owe a
duty of care to perform his duty with diligent and with reasonable skill in accordance to
the standard of duties stated. If he fails he is liable for resulting damages to his client.
There are also claims from the third partier against clients due to the failure of the
quantity surveyors who act as their agents.
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ABSTRAK
Juruukur bahan adalah salah seorang professional yang terlibat dalam pembangunan
pembinaan semasa peringkat pre-tender. Penglibatan juruukur bahan pada peringkat
tersebut adalah sebagai penasihat berkaitan dengan kontrak dan kos yang telah dilantik
oleh pihak klien untuk memjalankan tugas seperti Anggaran kos, membuat ‘bills of
quantity’ dan memberi nasihat kepada pihak klien mengenai kontraktor yang mepunyai
kredebiliti untuk menjalankan projek tersebut. Pada masa ini, terdapat banyak pertuduhan
di majukan kepada pihak profesional di dalam industri binaan akibat kecuaian dalam
menjalankan tanggungjawab. Kajian ini bertujuan untuk menyiasat liabiliti yang di
tanggung oleh juruukur bahan semasa peringkat pre-tender berkenaan dengan
penghasilan anggaran kos, penghasilan senarai kuantiti dan memberi saranan berkaitan
kontraktor yang bakal di cadangkan di dalam laporan tender. Analisis untuk kajian ini
dijalankan dengan merujuk kes mahkamah yang menunjukkan kesalahan yang biasa
berlaku dalam perlakuan professional semasa peringkat pre tender. Kesimpulan daripada
kajian ini ialah pihak juruukur bahan mempunyai kewajipan menjalankan kerja dengan
tekun dan kemahiran yang munasabah menurut terma kontrak, jika dia gagal, dia
bertanggungjawab kerana mengakibatkan kecederaan, kerugian atau kerosakan kepada
pihak klient. Terdapat juga tuntutan daripada pihak ketiga kepada klien akibat kegagalan
juruukur bahan menjalankan tanggungjawab tugas dengan baik dan sebagai seorang agen
kepada klien, juruukur bahan bertanggungjawab untuk menanggung kerugian.
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CONTENTS
Chapter Contents Page
Declaration
Dedication
Acknowledgements
Abstract
Contents
List of Tables
List of Cases
1 INTRODUCTION
1.1 Background of the study
1.2 Statement of issues
1.3 Objective of Study
1.4 Limitation of Study
1.5 The Significant of Research
1.6 Research Method
1
5
7
7
7
7
2 QUANTITY SURVEYOR
2.1 Introduction
2.2 The Nature of Professions
2.3 Nature profession of Quantity Surveyor
2.4 Quantity Surveyor’s contract
2.5 Duties of Quantity Surveyor during pre – tender
10
12
13
16
20
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Chapter Contents Page
2.5.1 Preparing Preliminary Estimates including preparation
of Preliminary Detailed Abstract (PDA), tender
estimate and Cost Plans.
2.5.2 Measurement and Preparing Bills of Quantities
2.5.3 Evaluate tender submission and prepare tender report.
2.6 Duties of Quantity Surveyor during post – contract.
2.7 Quantity Surveyor as an agent to the Construction Client
2.8 Professional Liability
2.8.1 Nature of the liability
2.8.2 Theories of liability
2.8.3 Professional liability
2.8.4 Professional liability in contract
2.9 Standard of Care
2.10 Reasonable Skill and Care
2.11 Professional Negligence
22
24
29
32
34
29
40
41
44
47
50
54
57
3 LIABILITY OF QUANTITY SURVEYOR DURING
PRE-TENDER STAGE
3.1 Introduction
3.2 Duties to prepare the cost estimate during pre-tender.
3.2.1 Preparing estimate with honest and reasonable
Care
3.3 Liability in Preparing Bills of Quantity.
3.3.1 Prepares a bill with reasonable care and
skill
60
62
62
70
70
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Chapter Contents Page
3.3.2 Measurement must be done in accordance to Standard
Method of Measurement.
3.4. Liability in recommending the acceptance of a tender.
74
76
4 CONCLUSION
4.1 Introduction
4.2 Research finding
4.3 Study constraints
4.4 Suggestion for future study
4.5 Conclusion
80
81
81
81
82
REFERENCES 85
APPENDICES
x
List of Figure
Page
Figure 1.1
Figure 2.1
:
:
Research Process and Methodology.
General Relationship of the agent, the principle and the
third parties
9
36
xi
List of Cases
Cases
A.E. Farr Ltd v. Ministry of Transport (1965) 5 BLR
Alderson B. in Blyth v Birmingham Waterworks Co11 Ex. 781, 784
Aubrey Jacobus & Partners v. Gerrard [1981] unreported
Andrews v Ramsay & Co. [1903] 2 KB 635, 638
Bains Harding Construction & Roofing (Aust) Pty Ltd v. McCredie Richmond & partners Pty
Ltd [1988] 13 NSWLR 437.Supreme Court of New South Wales, Smart J,10.6.1998
Barnett v Cape Town Foreshore Board [1978] FSR 176
Blair And Patterson Ltd v. McDermott [2006] ABC.L.R. 05/01
Blyth v Birmingham Water Works Co. [1850] 11 Exch 781
Blyth v Birmingham Waterworks Co [1856] 11 Exch 781 at pg 784
Blyth v Birmingham Waterworks Co. [1856] 11 Ex. 781, 784
Bodin v. Gill 117 S.E.2d 32
Bolam v Friern Hospital Management Committee [1957] 1 WLR 582 13,76
Bolt v. Thomas [1859] (Hudson’s Building and Engineering Con-History of Construction
Contracts and Case Law 7, tenth edition, at page 196)
Brown v. Kendall [1850] 60 Mass 292
Bryant and Sons Ltd v. Birmingham Saturday Hospital Fund [1938] 1 All ER 503
Cardy v Taylor [1994] 38 Con. L.R. 79
Carr v. IRC Lord Justice DuParq [1944] 2 AER 163
Cheng Keng Hong v Government of Federation Malaya [1966] 2MLJ 33
City of Mounds View v. Walijarvi 263 NW2d 420 (Minn. 1978)
Copthorne Hotel (Newcastle) Limited v Arup Associates [1997] 85 BLR 22
Cunard & Anor v. Antifyre Ltd [1953] 1 KB 551; [1932] All ER Rep 558
Derry v Peek [1889] 14 Appeal Case (HL)
Dudley Corporation v. Parson and Morrin Ltd [1959] (Construction Cost Management: Learning
from Case Studies, at page 216,221)
Eckersly v. Binnie & Partners [1988] 19 Con LR 1
xii
Gable House Estates v The Halpern Partnership [1995] 48 Con.L.R. 1
George Hawkins v Chrysler (UK) Ltd & Burne Associates [1986] 38 BLR 40
Gilbert & Partners v. R. Knights [1968] 2 AER 248; 4 BLR 9
Gordon Shaw Concrete Products Ltd v. Design Collaborative [1986] CarswellNS 104
Greaves & Co v Baynham Meikle [1975] 1 WLR 1095
Hanafiah, Raslan, Mohamed & Partners v Weng Lok Mining Co Ltd [1977] 1 MLJ 249
Heaven v Pender [1883] 11 QBD 503
Henderson v. Merrett Syndicated Ltd [1994] 3 WLR 761
Heath v. Swift Wings, Inc 252 SE 2d 256 (NC App 1979)
Kirkwood v Morrison
Lamphier v. Phipos [1838] 8 CP 475
KC Lim and Associates Sdn Bhd v Pembenaan Udarama Sdn Bhd [1980] 2 MLJ 26
Lochgelly Iron and Coal Co Ltd v M’Mullan [1934] AC 1,at page 25
London School Board v Northcroft [1899]noted at Hudson’s building cases (4th edition) vol.2
p.147
Meigh v. Stocking ford Colliery Company Limited Cited [1922] Hudson’s Building Case 7th
Edition Pg 308
Midland Bank Trust Co. Ltd v. Hett, Stubbs & Kemp [1979] Ch 384
Mitsui Construction v A.G Hong Kong [1986] 33 BLR 14
Moneypenny v Hartland [1826] 2 C & P 378
Nye Saunders and Partners v. Alan E Bristow [1987] 37 BLR 92,53,56
Partridge v Morris [1995] CILL 1095
Pratt v. George J Hill Associate s 38 B.L.R. 25
Saif Ali v Sydney Mitchell & Co ([1980] AC 198
Savage v Board of School Trustees [1951] 3 D.L.R. 39
Sutcliffe v Thackrah [1974] AC 727, at 760
Taylor v. Hall Taylor (1870) 4 IRCL 467 at 476
Turpin v. Bilton [1843] 5 Man & G 455; 134 ER 641
Tyrer v. District Auditor of Monmouthshire [1973] 23
Vaughan v. Menlove [1837] 3 Bing N.C 467,132 E.R 490 (C.P)
CHAPTER 1
INTRODUCTION
1.1 Background of the study
Although quantity surveying is a relatively old profession, nature of service
has changed considerably as the nature of the construction industry has changed.
The core function of Quantity Surveyor also remains the same as described in
nineteenth century case Taylor v. Hall1 namely,
‘taking out in detail the measurement and quantity from plan prepared by
an Architect for the purpose of enabling builders to calculate the estimate for
which they would execute the plans’.
In the broadest definition, the quantity surveyor is a person to control
construction costs b y accurate measurement of required, the application of expert
1 Taylor (1870) 4 IRCL 467 at 476
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knowledge of costs and prices of work, labour, materials and plant required2. The
usual duties of a quantity surveyor can be described with reference to different
stages of development process. Pre-tender stage is where at the outset and before a
building contract is entered, a quantity surveyor may be engaged by the employer
to advise him of the estimated cost of the project and prepare detailed bill of
quantities and schedules. The quantity surveyor may also be called upon to give
general advice3.
Quantity Surveyor is one of the professionals involved in the construction
industry. In accordance to Shrike4, the term professional refers to a person who is
skilled and specialized, holds some special qualifications derived from training or
experience and conforms to high standard of performance and work ethics. This
professional belongs to a regulatory body which prescribes common rules of
conduct and standard practice. This professional must perform his duty under a
standard of performance.
The explanation of Standard of Performance by Bingham LJ in Eckersly v.
Binnie & Partners 5 should be applied equally to any construction professional.
Bingham LJ commented that
‘A professional man should command the corpus of knowledge which forms
part of the professional equipment of the ordinary member of his profession.
He should not lag behind other ordinary assiduous and intelligent members of
his profession in knowledge of new advances, discoveries and developments in
his field. He should alert to the hazards and risks inherent in any professional
2 Patten, B (2003) Professional Negligence in Construction Spon Press : London at Pg 72 3 Patten, B (2003) Professional Negligence in Construction Spon Press:Great Britain Page 73 4 Shrike,S (2009) 2 MLJ cl xii 2 MLJA 162 : Professional Negligence in the Construction Industry,
MLJ Articles 5 [1998] 10 Con LR 1.
3
task that he undertakes to the extent that other ordinarily competent members
of profession would be alert. He must bring to any professional task he
undertakes no less expertise, skill and care than other ordinary competent
members would bring but need bring no more. The standard is that of the
reasonable average. The law does not require of a professional man that he be
a paragon combining the qualities of polymath and prophet.”
He is acting as an agent of the construction client to administer the contract on
behalf of the client. An agent is a person that is authorized to create rights and
obligations for the principle which in this particular case is the construction client
through formation of contract or by appointment of the principle without contract or
may be inferred from the principle’s conduct6.
The agent must display complete loyalty and good faith, obey instruction to
the letter and not attempt to exceed the authority that has been granted7. Extend and
nature of duties owed to the client by the quantity surveyor as well as the powers
and authority granted to the client will be determined by the contract for services
between them8.
The professional not only required to do the work but also to do it competently
where his failure to do so constitutes negligence9. Thus, the surveyors who
miscalculate the estimated cost of a project, where in a case the clients think the cost
would be cheaper, is likely to be in breach of his contractual obligation to use
reasonable skill and care10.
6 Sinha & Deeraj (2000) Legal Dictionary 2nd Edition ILBS : Reprinted Edition Malaysia 7 Hinze, J Construction Contracts 2nd Edition,McGraw-Hill Higher Education:New York Page 60 8 Ashworth, A & Hogg, K (2007) Willi’s Practice and Procedure for the Quantity Surveyor 12the
Edition Blackwell Publishing : Britian Page 83 9 Ryan v Morgan Spear Assocs.,Inc,546 S.W 2d 678,681 10 Copthorne Hotel (Newcastle) Ltd v. Arup Associates (1996) 58 Con LR 105
4
Negligence is defined in the Cunard & Anor v. Antifyre Ltd11 as the absence of
the care which a prudent and reasonable man would take in the circumstances. Lord
Wright in Lochgelly Iron and Coal Co Ltd v M’Mullan12 said:
“In legal analysis, it is more than heedless or careless conduct, whether in
omission or commission: it properly connotes the complex concept of duty,
breach and damage thereby suffered by the person to whom the duty owed.”
Definition given by Baron Alderson in the case of Blyth v Birmingham Water
Works Co.13 has general to apply :
“Negligence consists in the omission to do something which a reasonable man
guided upon those consideration which ordinarily regulate human affairs,
would do, or, doing something which a reasonable and prudent man would not
do”
The negligence act by the said professional resulting damages to another party
can be severe in both human and term of cost. In the event of negligence occurred, the
case-laws are then used to judge the nature of legal duties to which professional
quantity surveyor might owe their clients and the extent to which professional might
held liable to pay damages and to what extent the claims can be made towards this
professional.
11 [1953] 1 KB 551; [1932] All ER Rep 558 12 [1934] AC 1,at p 25 13 [1850] 11 Exch 781
5
1.2 Statement of issues
During the last fifteen or so years, there has been an explosion of claims
against professionals precipitating a liability crisis within the profession where the
professional were held liable to the project owner and others for failures to perform
their professional obligations in accordance with the standard of care14.
Similar to other profession, the standard contract or the retainer between a
quantity surveyor and client will contain express term that both parties agree at the
time contract entered.15 Therefore the surveyor will be under a duty to his client
under the contract to exercise reasonable skill and care, where in a case of breach of
the contract, the client is entitled to damages to remedy the breach16. Later, the
client has a right to recover all losses arising naturally from the breach.
The quantity surveyor involved in the various of development stage including
the pre-tender stage where the are few duties or responsibilities will be carried out
as preparing cost estimate, preparing bills of quantity and giving suggestion on
suitable contractor. Under a contract term, the quantity surveyor will need deliver
his duties with reasonable skill and care.
14 Matthew J. Sullivan & Chris S. Stacy. Theories of Liability against Architects & Engineers Retrieved
24 May 2009 , from http://www.utcle.org/eLibrary/preview.php?asset_file_id=1301 15 Wilson, S (2006) Surveys and valuations – Breach of contract and negligence, Journal of Building
Appraisal Vol 2 No 4 PP 294-300 : Palgrave Macmillan Ltd 16 Ibid
6
Although quantity surveyor rarely featured in negligent cases17 but there are
few cases on allegation made to the Quantity Surveyor. In one of Australian case,
Bains Harding Construction & Roofing (Aust) Pty Ltd v. McCredie Richmond &
partners Pty Ltd18, the allegation made by client towards the quantity surveyor for
the missing pages in the tender documents. The defendant is a quantity surveyor
engaged by plaintiff to prepare a quantity breakdown for a purpose pricing a tender.
However, the bill prepare by the defendant appear to have missing page causing
BHC to underbid. Plaintiff claimed its loss from the defendant and it was successful.
In addition, Information given by the quantity surveyor at the pre-contact or
tender stage would be necessary as well as helpful especially to the contractor in
determining contract pricing document. In the case of Meigh v. Stocking ford
Colliery Company Limited19, quantity surveyor is obliged to prepare an accurate
quantity for the builders or contractor to price. The mistake in preparing bills of
quantity will cause the client to the losses.
The extend of the standard of care is a subjective issue that could in fact
induce a significant effect when come to decision in the court case involve in the
law of negligence. It is a focus of this study to establish the liability of the quantity
surveyor to his client with respect to breach of duty during the pre tender stage.
17 R.W Craig (1999 ) Procurement law for Construction and Engineering Works and Services,
Blackwell Science Limited:London Pg 515 18 [1988] 13 NSWLR 437.Supreme Court of New South Wales, Smart J,10.6.1998 19 Cited [1922] Hudson’s Building Case 7th Edition Pg 308
7
1.3 Objective of Study
The objective of this study is to identify liability of Quantity Surveyor towards
the client with respect of breach of duties in pre-tender stage under the traditional
procurement by studying/observing principle of law governing court decision.
1.4 Limitation of Study
The scope of this study will be confined to the following areas:
• Cases fall under conventional system because this method still is the
common method used.
• This study will be limited to contractual liability between the client and the
quantity surveyor.
1.5 The Significant of Research
From the research finding, the future research on corrective measures can be
carried out later to overcome or decrease the number of claims towards the
professionals with the intention that the professionals are remain trustable and
reliable
1.6 Research Methodology
Below are several approaches that will be taken to achieve the objectives.
8
Firstly, initial literature review was done in order to obtain the overview of the
concept of this topic. Discussions with supervisor, lecturers, as well as course
mates, were held so that more ideas and knowledge relating to the topic could be
collected. The issues and problem statement of this research will be collected
through books, journal, cases, articles and magazines. The objective of this research
will be formed after the issue and problems had been identified.
The next stage is the data collection stage. After the research issue and
objectives have been identified, various documentation and literature review
regarding to the research field will be collected to achieve the research objectives.
Generally, primary data is collected from Malayan Law Journals and other law
journals via UTM library electronic database, namely Lexis-Nexis Legal Database
and other Legal Database, WestLaw. The secondary sources include books, articles,
seminar papers, newspaper as well as information from electronic media database
on the construction contract law. These sources are important to complete the
literature review chapter.
After the data collection stage, the author will analyse all the collected cases,
information, data, ideas, opinions and comments. This is started with the case
studies on the related legal court cases. The analysis will be conducted by reviewing
and clarifying all the facts and issues of the case.
The final stage of the research process mainly involved the writing up and
presenting the research findings. The author will review the whole process of the
research with the intention to identify whether the research objectives have been
achieved. Conclusion and recommendations will be made based on the findings
during the stage of analysis.
9
Figure 1.1 Research Process and Methodology
Initial Study
Fix the research topic
Fix the research objective, scope and prepare the research outline
Data Collection
Data analysis & interpretation
Data arrangement
Writing
Checking
Identify type of data needed and data sources
Approach: Documentary Analysis
• Law Journals, e.g. Malayan Law Journal, Singapore law Report, Building Law Report, etc.
• Books • Other Journals
Approach 1: Literature review
• Books, journals, internet sources Approach 2: Discussion
Data Recording
10
CHAPTER 2
QUANTITY SURVEYOR
2.1. Introduction
Professional such as engineers, architects and surveyors play a very important
role in the construction industry. The precise meaning of the term ‘professional’
probably depends upon the points of view of the person using it. It is understand in
the sense of sociologist and lawyers as a person whose work and attitudes contain
particular characteristic of which the work itself is generally skilled and specialized,
mental rather than manual and usually the product of training and even examination
rather than experience20.
John L. Powell21 expresses “Professional" as an acquisitive concept, acquisitive
of aspirations and expectations but also of liabilities. A professional can be either a
person in a profession (certain types of skilled work requiring formal training or
20 Patten B (2003) Professional Negligence in Construction Spon Press : London Page 1 21 John L. Powell. Professional Negligence The Changing Coastline Of Liability at
http://www.4newsquare.com/Files/PDF/Article/JP%20article.doc
11
education) or in sports (a sportsman or sportswomen doing sports for payment) and
indicate a special level of quality of goods or tools sometimes also known as
commercial grade22. In addition, there is an expectation that professionals are
committed to work ethic which requires them to aspire to high performance for its
own sake and not just the requirements of the particular contract23.
A profession is classically defined as an occupational group of specialists
whose practice is based on a circumscribed body of knowledge, represented by a
professional association, self regulating via code of ethics and professional conduct
and participating in a shared culture norms, values and symbols24. In Carr v. IRC
Lord Justice DuParq25 stated:
“It seems to me to be very dangerous to try to define the word ‘profession’. I
think that everybody would agree that before once can say a man is carrying
on a profession, one must see that he has some special skill or ability or some
special qualification derived from training or experience. Even then one has to
be very careful because there are many people whose work demands great
skill and ability and long experience and many qualifications who would not
be said by anybody to be carrying on a profession. Ultimately one has to ask
this question: Would the ordinary man, the ordinary reasonable man…say
now, in the time in which we live, of any occupation, that it is properly
described as a profession? Times have changed. There are professions today
which nobody would have considered to be professions in time past. Our
forefathers restricted the profession to a very small number; the work of the
surgeon used to be carried out by a barber, whom nobody would have
considered a professional man. The profession of chartered accountant has
22 Howard (2000) Professional Ethics and Rules of Conduct for the Royal Institution of Chartered
Surveyors (RICS). United Kingdom : College of Estate Management 23 R.M Jackson and J.L Powell. Professional Negligence 5th Edition 24 Greenwood, W (1965) Management and Organizational Behavior Theories : An Interdisciplinary
Approach. Cincinnati, OH : Southwestern Publishing 25 [1944] 2 AER 163
12
grown up in comparatively recent times and other trades or vocations…many
in future years acquire the status of professionals”.
2.2. The nature of Professions
As stated by Powell and Jackson26, a definition of ‘the professions’ is pre-
eminently a matter for social historians or for sociologists rather than lawyers.
Generally speaking, however, the occupations which are regarded as professions have
four characteristics.
a. The nature of the work
The work done is skilled and specialized. A substantial part of the work is
mental rather than manual. A period of theoretical and practical training is usually
required, before the work can be adequately performed.
b. The moral aspect
Practitioners are usually committed, or expected to be committed to certain
moral principles. They are expected to provide a high standard of service for its own
sake.
c. Collective organization
Practitioners usually belong to a professional association, which regulates
admission and seeks to uphold the standards of the profession. Such associations
26 Powell J.L & Jackson R.M (1987) Professional Negligence: Sweet & Maxwell: London
13
commonly set examinations to test competence and issue professional codes on
matters of conducts and ethics.
d. Status
A ‘profession’ involves the idea of on occupation requiring either purely
intellectual skill, or of manual skill controlled.
2.3. Nature profession of Quantity Surveyor
A quantity surveyor is a professional working within the construction industry.
The employment of the quantity surveyor on building projects today is well
established. They also occupy a much more influential position than in the past,
particularly when they are involved at the outset of a project27.
Hudson as cited by Barrett28 rightly describes quantity surveyors as ‘in general
highly skilled’ and ‘likely to be at least as well qualified in matters of technical
building construction, as are architect. A quantity surveyor also been define in court
as person ‘whose business consists in taking out in detail the measurement and
quantities from plans prepared by an architect, for the purpose of enabling the builders
to calculate the amounts for which they would execute the plans29.
27 Ashworth, A. (2001) Contractual Procedure in the Construction Industry Fourth Edition,Malaysia:
Longman 28 Barrett, K (2008) Defective Construction Work, Wiley-Blackwell : United Kingdom 29 Taylor v. Hall (1870) 4 IRCL p476
14
“If a man is unqualified but holds himself out to possess a skill, he will be
judged by the standards of a reasonably competent qualified person”
One of the definition of the categories of surveyors to be found in the Shorter
Oxford English Dictionary reads as one whose business it is to inspect and examine
the land, houses or other property and to calculate and report upon its actual and
prospective value or productiveness for certain purposes30. Quantity Surveyor in
Malaysian context must be a member of a Board of Quantity Surveyors Malaysia
(BQSM) and previously he must acquire a relevant education at accredited
universities with not less than two years working experience31.
As with architect and engineers, the fact that a quantity surveyor is relatively
junior or inexperienced will not of itself provide a defence to being judged by the
standard of the ordinarily competent member of his profession as passed by in Cardy
v Taylor32.
There are a numbers of important professional bodies in Malaysia
controlling and monitoring the membership of the professional surveyors namely the
Institution of Surveyors, Malaysia (ISM) and whilst the Board of Quantity Surveyors
is the National (BQSM) is the National registration Authority for professional
Quantity Surveyors. Quantity Surveyor practice in Malaysia is governed by the
Quantity Surveyor Act 196733. Matters of professional conduct and discipline are
dealt with by the Professional Conduct Committee which will investigate
“unacceptable professional conduct” or “serious professional incompetence”.
30 Refer to case The Royal Insitution of Charted Surveyors v. Director General of Fair Trading [1981]
E.C.C 587 [55] 31 Quantity Surveyor Act 1967 Subsection (10) (1) (a) Qualifications for Registration 32 [1994] 38 Con. L.R. 79 33 Ibid Incorporating all amendments up to 28 February 2002 (Act 487)
15
Only those registered in subsection (2)34 or any other written law, recognized
as a registered quantity surveyor can reside, practice and perform duties as a quantity
surveyor as stated in Quantity Surveyor Act 1967 sub section 8 (1),
“Except as otherwise provided in subsection (2) or any other written law, no
person or body, other than a registered Quantity Surveyor who is residing
and practising in Malaysia or firm or body corporate practising as
consulting Quantity Surveyors in Malaysia, shall be entitled to –
(a) prepare and submit to any person, organization or authority in Malaysia,
for construction projects, any feasibility study reports, preliminary
estimates, cost plans, documents and reports for pre-qualification of
contractors, bills of quantities and other tender documents, tender estimates
and reports, contract documents, and valuation of works for interim
payments, variation and final accounts; and
(b) provide professional services such as project cost management, value
management, risk management, facilities management, project management,
construction management, construction claims management, dispute
resolution services, technical and construction cost auditing and condition
survey.”
In Malaysia, quantity surveyor is one branch of the wider family of surveyors
which were divided to four divisions namely Property Consultancy Valuation
Surveying Division (PCVS) Geomatic and Land Surveying Division (GLS) Quantity
Surveying Division (QS) Building Surveying Division (BS).
Quantity surveyors are required to comply with a strict code of professional
conduct which includes responsibility to their employers or clients and to their
34 Ibid Surveyor Act 1967 Subsection (2) Registration
16
profession having full regard to the public interest, conducting themselves so as to
uphold the dignity and reputation of the profession and discharging their duties to
their employers and clients in an efficient and competent manner35.
2.4. Quantity Surveyor’s contract
It is suggested by Ir Harbans Singh K.S36, the professional should be vigilant
in securing a formal services agreement and not replying merely on a letter of intent
or a letter of appointment. The prevailing local practice of delaying or postponing the
formalization of the professional services agreement in cases even well after the
completion of the works has caused and is resulting in professionals compromising
their contractual rights, an eventuality that must be avoided if professionalism is to
prevail37.
To avoid any future disputes or differences, details of what the professionals
are to advice or act must be embodied in a form retainer. A retainer is a contract
between the client and the professionals for professional services of designing and
supervision of construction project.
Oliver J in Midland Bank Trust Co. Ltd v Hett. Stubbs and Kemps38
35 Association of South African Quantity Surveyors What is a Quantity Surveyor? Assessed at
http://www.asaqs.co.za/public/history.html 36 Ir Harban Singh K.S (2002) Law and Principle , LexisNexis : Malaysia 37 Ir Harban Singh K.S (2002) Engineering Construction Contract Management Pre-Contract Award
Practise, LexisNexis : Malaysia Page 237 38 [1979] Ch 384 [1978] All ER 571
17
“The classical formulation of the claim in this sort of case as ‘ damages for
negligence and breach of professional duty’ tends to be a mesmeric phrase. It
concentrate attention on the implied obligation to devote to the client’s
business that reasonable care and skill to be expected from a normally
competent and careful practioner as if that obligation were not only a
compendious but also an exhaustive, definition of all the duties assumed under
the contract created by the retainer and its acceptance. But of course, it is not.
A contract give rise to a complex of right and duties of which the duty to
exercise reasonable skill and care is but one, If I employ a carpenter to supply
and put up a good quality oak shelf for me, the acceptance by him of that
employment involves the assumption of a number of a contractual duties. He
must supply wood of an adequate quality and it must be oak. He must fix the
shelf. And he must carry out the fashioning and fixing the reasonable care and
skill which I am entitled to expect of a skilled craftsman. If he fixes the
brackets but fails to supply the shelf or if he supplies and fixes a held of
unseasoned pine, my complaint against him is not that he has failed to
exercise reasonable care and skill in carrying out the work but that he has
failed to supply what was contracted for.”
There is no legal requirement for a particular form of contract to be entered
into by a quantity surveyor. The normal rules of the law of contract will apply to any
agreement between a quantity surveyor and his client. The contract is the legal
agreement by which the professional and his client agree their respective rights and
obligations. It may contain express provisions which set out those rights and
obligations relevant to the particular dispute. Alternatively if the contract is silent as
to these obligations the law will treat them as being implied.
Most professional organization produces a standard contract. The scope and
nature of the services to be provided by the quantity surveyor will vary with the
particular projects in order to meet the client’s requirement. To facilitate good
18
working relationship and to avoid misunderstandings a clear agreement is essential.
Such as agreement needs to set out the responsibilities of the Quantity Surveyor, the
client and others as well as the extend of the services to be provided and condition of
payment for that services39.
The most commonly employed form of agreement in Malaysia is the Terms of
Reference the Provision of Professional Quantity Surveying Services40 issued by the
Malaysia Public Work Department, the BQSM/JKR FORM C (Revised 1/83) issued
by the Board of the Quantity Surveyor Malaysia and other government agencies
which come in a number of variations which illustrate the breadth of responsibilities
commonly accorded to quantity surveyor.
The quantity surveyor’s responsibilities are defined clearly in the contract
covering the duties of the quantity surveyor from the pre-tender until the post
contract41. The mentioned Terms of Reference also mentioned the fees charged by the
quantity surveyor based on the scale of Fees42.
In some cases a valid contract exists in unambiguous terms, the court will
enforce it. In the case of Gilbert & Partners v. R. Knights43, the plaintiffs firm of
quantity surveyors agreed for a fee of £30 to arrange tenders, obtain consents for,
settle accounts and supervise certain alterations to a dwelling house on behalf of the
defendant. Initially the work value of some £600 was envisaged but in the course of
alteration the defendant changed her mind and order additional work. In the end, work
valued at almost four times the amount originally intended was carried out, the
40 Refer to Appendix : Terms of Reference the Provision of Professional Quantity Surveying Services
Revision No. 1/2002 (1 November, 2002) 41 Refer to Appendix : Clause 2.0 Scope Of Consulting Services 42 Refer to Appendix : Clause 3.0 Renumaration 43 [1968] 2 AER 248; 4 BLR 9
19
plaintiff continued to supervise throughout and then submitted a bill for £135. This
was met with a claim that a fee of £30 on had been agreed. It was held that the
original agreement was for an all in fee covering all work to be done, the plaintiff was
entitled to only £30.
Ashworth and Hogg44 (2007) suggested that the agreement for appointment of a
quantity surveyor whether a standard or non-standard document, will encompass
certain provisions including the following:
• Form of agreement/particulars of appointment
• Scope of services provided
• Fee details
• Payment procudes
• Professional indemnity insurance requirements
• Assignment
• Suspension
• Copyright
• Duty of Care
• Dispute procedures
According to Farial Hanum Nurul Ain bt Khalid45 (2007), the content46 of
quantity surveyor consulting services consists of:
i. Memorandum of Agreement (MOA),
ii. General condition of engagement of consulting quantity surveyor, 44 Ashworth, A & Hogg, K (2007) Willis’s Practice and Procedure for the Quantity Surveyor 12the
Edition Blackwell Publishing: Britain 45 Farial Hanum Nurul Ain Bt Khalid (2007) Comparison of Consulting Contract,Master of Science
(Construction Management): UTM, Unpublished 46 Refer to BQSM/JKR FORM C (Revised 1/83)
20
iii. Schedule of fess,
iv. Term of reference (TOR)
v. Appendices including the letter of appointment
In the case of Barnett v Cape Town Foreshore Board, an Architect sought an
injunction against the Employer, arguing that there was an implied term that the
Employer could not use only a part of the Architect’s plans, or depart from them,
without his approval, or, alternatively, that the Employer’s action amounted to a
breach of copyright. It was held that neither contention was valid, and that the
Employer was entitled to make such use of the Architect’s services as he saw fit,
provided that proper remuneration was paid.
The Employer is entitled to a professional standard of skill in the discharge of
all the duties necessary until the purpose of the appointment in question has been
achieved. A mere request to act in relation to a project, without specifying at the
outset the services required, will inevitably lead to doubt or dispute as to what are the
respective rights and duties of the parties and it is therefore essential, particularly
when more than one type of consultant is used on the same project, that the purpose
and extent of the respective appointments should be made absolutely clear
2.5. Duties of a Quantity Surveyor At Pre-Tender Stage
By tradition, a quantity surveyor is an agent to his client and performs his
duties based on the implied term under the agency contract between the client and the
quantity surveyor. The role of the quantity surveyor, in general terms, is to manage
and control contracts and costs within construction projects. This involves the
deployment of an extensive set of skills acquired through specialized formal
21
education, specific training and experience47. Jackson Rupert stated that the duties of
a quantity surveyor were judicially described in the last century as,
“taking out in detail the measurements and quantities from plans prepared by
an architect for the purpose of enabling builders to calculate the amounts for
which they would execute the plans.
He also highlighted that the above description is rather anachronistic as a
quantity surveyor’s duties today commonly extend to the preparation of estimates,
bills of quantities, and schedule for pricing by the contractors and negotiation with the
contractor. Ben Patten48 suggested that the nature of the quantity surveyor profession
has changed considerably as nature of the construction industry has changed,
particularly in response to increasing specialization of roles demand under many
modern construction contracts.
Most surveyors have acquired considerable expertise in the use of standard
forms of contract and many architects look to the surveyors with whom they regularly
work for advice and guidance on contractual matters. The surveyor also has a duty to
ensure that all actions taken in relation to the financial administration of the contract
will be fair to both parties49.
The quantity surveyor’s contract usually listed the duties of quantity surveyors
during the pre tender stage. While the duties may be added to or limited in some way
by contract, they are normally as follows:
47 Wikipedia, Quantity Surveyor assessed 2.9.2009 at http://en.wikipedia.org/wiki/Quantity_surveyor 48 Professional Negligence in Construction Pg 72 49 Ramus, Brichall & Griiffths on Contract Practise for Surveyors Pg 5
22
2.5.1 Preparing Preliminary Estimates
During Pre-tender stage, all aspects of the surveyor’s professional work relate
directly to costs of construction work of all kinds. This includes new building and
civil engineering project and the alteration, extension or refurbishment of existing
buildings50.
These estimates are often prepared in the early stages of design and can
influence the Employer as to whether or not he should proceed with the scheme51.
During the production of estimates, care should be taken in reporting of estimates to
indicate the degree of approximation.
The main types of estimate/cost plans encountered in a typical project include,
inter alia the follwing :
• The initial estimate
• The Preliminary Cost Estimate (PDA)
• The Project Cost Plan
• The Pre-tender estimate
As the preliminary design of the Project is being developed, the quantity
surveying shall give advice on cost implications of the design as and when required
by the design team. Upon the finalization of the preliminary design of the project, the
50 Ramus, J, Birchall, S & Griffiths,P (2006) Contract Practise For Surveyors, Fourth Edition,
Butterworth-Heinemann:UK 51 Knowles Roger. Professional Liability of Consultants in the Construction and Engineering Industries.
Unpublished.
23
quantity surveyor shall prepare Preliminary Detail Abstract (PDA)52. When preparing
the preliminary cost estimate, the quantity surveyor usually adapt one of the following
principal methods53:
• Unit of End Product Method
This method employs the unit quantity of the end-product such floor area
(square foot, square metre) and length (per foot run. Per mile)
• Approximate Quantity Method
It is a refinement of the unit of end product method and is used where the
design information is sufficient to enable approximate quantities to be taken
off or measured with reasonable accuracy
When the design is finalized, then the quantity surveyors will proceed with
the preparation of bills of quantity based on actual quantity. Then the tender estimate
will be produced and deemed to be the final costs of the quantity surveyor for the
particular projects before the work on site commence which is known as Pre-tender
estimate. In assessing the cost of works a quantity surveyor must have regard not
merely to the current state of prices and materials but also as to the likely trends in
both54. The quantity surveyor must use the current and updated market rate to avoid
under estimate and must take into account any inflation or price hike in his estimation.
In the event of any breach of obligation or declaration of duty by the
estimators, he can be liable for two possible causes of action:
52 Refer to Appendix : Clause 4.0 Compliance With Government Practice And Procedure 53 See JKR Malaysia, A Guide on the Administration of Public Works Contract [1998] at p 13 cited by
Ir Harban Signh in the Pre Contract Award Practise Book. 54 Refer to Patten Ben, Professional Negligence in Construction Page 78
24
• In contract : By breach of the express or implied of engagement e.g.
the professional services agreement and or
• In tort: By the breach of the duty of care to use reasonable skill and
care in discharging their professional duty and/or in mis-presentation
or negligent misstatement as the case may be55.
2.5.2 Measurement and Preparing Bills of Quantities
.
The bill of quantities was devised and first used in Britain to provide the
building contractor with a method by which he or she could establish in detail the
labour and materials required to construct a building and accurately cost the works56.
Quantity Surveyor will generally be asked to prepare the detailed bill of
quantities and schedules to enable the contractor to tender for the work. A bill of
quantities is prepared by a professional qualified person known as a quantity surveyor
who undertakes extensive training in construction design and contractual aspects of
the building industry57.
Bills of Quantities are contract documents and such have a specific role to
fulfill under the standard form of contract. It is therefore important that they are
55 Refer to Ir Harban Sign in the Pre Contract Award Practise Book. 56 McLagan, D (1991) An Introduction to Building Contracts, The Law Book Company Limited ,
Australia Pg 42 57 Ibid
25
prepared in accordance with the conditions of the contract, contain certain basic
information and are presented in a recognizable format which facilitates their use58.
Bills of quantities were described in the Placing and Management of Building
Contracts (Simon Report,1944) as putting into words every obligation or service
which be required in carrying out the building project. Bills of quantities describe the
work that is to be carried out and establish a rate or price for the item of work. The
bill therefore allows the final measure of work to be valued by simply multiplying the
rate by the quantity of measured work59.
Bills of quantities for building are divided into the following sections60:
i. Preliminaries
ii. Preambles
iii. Measured Works
iv. Prime cost and provisional sums
Bills of quantity are prepared by a quantity surveyor using standard methods
of measurement. The work included in the item is defined in detail by the rules in the
Method of Measurement and based on the format approved by the client and shall be
measured firm. The item descriptions are therefore shorthand to allow the relevant
rules of the Method to be identified. The measure may be a single item or number,
dimension (linear metre, square metre, cubic metre), time (hrs, weeks) or weight61.
58 Refer Johnson Peter et al (1980) Pre-Contract Practise For Architect and Quantity Surveyors 59 Daniel Atkinson. An error of bills at http://www.atkinson-
law.com/cases/CasesArticles/CNewsArticles/CNews_1999_06_03.htm assessed by 1 August 2009 60 Brook, M (2004), Estimating and Tendering for Construction Works 3rd edition, Elsevier: Oxford
Pg51
61Daniel Atkinson. Bills of Quantity at http://www.atkinson-
law.com/cases/CasesArticles/Articles/Bills_of_Quantities.htm assessed by 8 August 2009
26
The purpose of these is to introduce uniformity into the practice of describing
work in bill and to make clear what processes are and what processes are not, deemed
to be included in the items of work which are billed, since every item of work,
however detailed is on analysis a composite item62. In order to prepare bills, therefore
the surveyor must be a master of standard method of measurement and familiar in
every aspect with the scheme of the contract of which are the bills to form part.
In the Malaysian context, the two common standard forms of contract
currently require the quantity surveyor to prepare the measurement based on the
Standard Method of Measurement of Building Works (SMM) sanctioned by
Institution of Surveyors Malaysia.
The SMM in Section A (General Rules) Clause A. 1 stated that the SMM
provides a uniform basis for measuring building works and embodies the essentials of
good practice. It defines and lays down and so standardized the methods or formulae
for actually measuring the quantities of different kinds of building works and in the
process sub-divides the building work into its components parts for purposes of
separate description and pricing in the bills of quantities63.
The Standard Form of contract PWD Form 203A (Rev. 2007) clause 26.4
stated that
“ The Bills of Quantities unless otherwise expressly stated in respect of any
specified item or items, shall be deemed to have been prepared in accordance
with the principles of the Standard Method of Measurement of Building Works
as published by the Institution of Surveyors Malaysia or Civil Engineering 62 See Kishore Gajria Pg 170 63 Institution of Surveyors, Malaysia (2001) Malaysian Standard Method of Measurement of Building
Works Second Edition, ISM : Malaysia
27
Method of Measurement published by Insitution of Civil Engineers (London)
or Method of Measurement as set out in Bill of Quantities.”
Meanwhile in Agreement and conditions of PAM Contract 2006 (with Quantities)
clause 12.1
“…..shall be prepared in accordance with the principles of the Standard
Method of Measurement of building Works sanctioned by the Institution of
Surveyors Malaysia and currently in force.”
The first edition of the Standard Method of Measurement (SMM) was
published in 1922 with the agreement of representatives of the Surveyors’ Institution,
the Quantity Surveyors’ Association, the National Federation of Building Trades
Employers and the Institute of Builders. The situation which existed prior to the
publication of the first edition is perhaps best described in the opening paragraph of
the preface to this historic document:
‘For many years the Surveyors’ Institution and the Quantity Surveyors’
Association were accepted as the recognized authorities for deciding disputed
points in connection with the measurement of building works. The frequency of
the demands upon their services for this purpose directed attention to the
diversity of practice, varying with local custom, and even with the
idiosyncrasies of individual surveyors, which obtained. This lack of uniformity
afforded a just ground of complaint on the part of contractors that the
estimator was frequently left in doubt as to the true meaning of items in the
bills of quantities which he was called upon to price, a circumstance which
militated against scientific and accurate tendering.’
As might be expected, it took several years for the quantity surveying
profession to become aware of the SMM and to use it in practice. The development of
28
more sophisticated standard methods of measurement, whilst desirable in many
respects, has done little to eliminate various types of claim. In Malaysia, the Royal
Institute of Chartered Surveyors (RICS) branch at Malaysia and Singapore had
establish the first edition of SMM for Malaysian use based on fourth edition of British
DMM in 1960. The current SMM use in Malaysia is Standard Method of
Measurement Second Edition (SMM2) which is the revision from the first edition
(Noor Ashikin, 1978).
As a contractual device, although widely used, they have attracted critism
because of the risks they pose to employers by reason of:
“The opportunities they offer in conjunction with standard methods, for
securing pricing advantages because over or under estimates (or failures to
comply with the standard methods) which can be detected in the bills at the
tender stage64”.
Errors in the preparation of bills of quantity are likely to be mundane and for
most part are processing errors-addition or subtraction being incorrect parts of the
specification omitted or double counted. Whilst there are older authorities which
suggest that such errors may occur and not necessarily be negligent65, it is doubtful
whether such an approach would be followed today and as a general rule an error in a
bill of quantities can be said to be prima facie evidence of negligence without the
need for further proof lack of reasonable care66.
In Tyrer v. District Auditor of Monmouthshire67, a quantity surveyor was
found to have acted in breach of duty for approving excessive quantities and prices
64 Hudson’s Building and Engineering Contracts, eleventh edition pg226 65 See London School Board v. Northcroft, Souhthern Neighbour cited in Ben Patten’s page 78 66 Refer to Patten Ben, Professional Negligence in Construction Page 78 67 [1973] 23.
29
with builders not just the arithmetic calculation but because he should have
appreciated that the quantities and rates were excessive.
It is very important for a quantity surveyor to do an accurate measurement.
The taking off is an extraction from the drawings and specifications of all the labour
and material required for the projects. Before starting to take-off quantities, the
quantity surveyor will examine all of the drawings. The quantity surveyor will take a
quick look through the entire set of drawings for an idea of the layout, type of
building, number of floors and general designs and also the order of the drawings.
There are three basic rules for taking off quantities:
i. Measured everything as it shows
ii. Take off everything seen
iii. If it different, keep it separate68
2.5.3 Evaluate tender submission and prepare tender report
Although in the Term of Reference provided by the PWD excludes the duty to
prepare the tender report, but in some projects, the quantity surveyor is responsible to
evaluate and prepare the tender report.
Upon receipt of competitive tenders, they are evaluated and reported to the
client with recommendation and for consideration. The tender evaluation is conducted 68 Foster, N; Trauner T.J; Vespe R.R; Chapman W.M (1995) Construction Estimates From Take Off to
Bid. McGraw Hill : United States of America
30
by the quantity surveyor who checks that the following are in order69. The above
technical check is aimed to ensure that all anomalies are clarifies and agreed before
the client is committed to contract.
Tender evaluation process can be either the following two types70 :
• Single-stage type or
Under this arrangement, either the employer himself or his nominated
representative undertake all aspects of the assessment, i.e. technical and
commercial from initial review until the final recommendation without
incurring activities such as interim recommendations, interview of tenderer etc
which is the hallmark of the more elaborate two-stage evaluation.
• Two-stage type
Two stage- type of evaluation are relatively more commonly encountered in
practice and are by nature the more sophisticated as compared to the single-
stage species addressed before.
The tender evaluation or appraisal is completed by submitting a report to the
client setting out all the actions taken scrutinize, check and correct the tenders and
giving conclusions and recommendations regarding which tender to accepted71. A
tender report contains information on tender evaluation, general technical and
recommendation. The form and contents of tender report varies from project to
project but usually includes the following points72:
69 Kwakye A.A (1997) Construction Project Administration, Longman : England Pg 147 More
explanation on the items to be checked by the quantity surveyor during evaluate the tender. 70 See Ir Harbans Singh Pre Contract Award Practise Pg 476 71 Kwakye A.A (1997) Construction Project Administration, Longman : England Pg 149. 72 Ibid.
31
• Tender sum for which each tenderer is prepared to execute the
construction projects and tender period when this has been an object of
competition
• Arithmetical or inconsistencies found in the lowest tenderer’s bid
• The quantity surveyor’s technical observation on pricing level, method
and policy and quality of pricing
• Details any qualifications to the tender and their financial and contractual
effect on the project.
The surveyor must report to the project manager or the architect and the client
as soon as the examination of tenders is complete. The form of report will vary
according to the nature of the tender documents but usually will include the
following73:
a) The opinion of the surveyors as to the price level i.e that the tender is high,
low or about the level expected
b) The quality of the pricing, indicating any detectable pricing method or
policy
c) The extend of error and inconsistencies in pricing and the action taken in
regard to them
d) The details of any qualification to the tender
e) The likely total cost of the project if not a lump sump contract
f) A recommendation as to the acceptance or otherwise
In other word, a quantity surveyor is involved in giving advice to the client in
deciding which contractor is suitable for the work by analyzing and preparing tender
report. It is important for the quantity surveyor to give the reliable advice to their
client.
73 See Ramus, Birchall & Griffiths, Contract Practise for Surveyors Pg 93
32
In a case of Pratt v. George J Hill Associates, the architect was found liable to
his client for recommending unsuitable contractor for the construction works. In that
case, the contractor becomes insolvent and leaving defective works and the client
unable to recoup the losses from the contractor. The court held that, the architect is
liable to the client for the damages.
According to Ir Harban Singh74, there are no hard and fast rules to follow as
the preferred criteria to be implemented are ultimately for the employer to decide. The
common parameters, however revolve around matters of quality, cost and time. To
these are added a host of other important variables resulting in a general set of criteria
which on a whole may include75:
• Completeness of the tender
• Accuracy offer
• Reasonableness of commercial offer
• Reasonableness of work programme
• Technical conformance
• Capability of tenderer
• Other miscellaneous of relevance e.g alternative offers
2.6. Duties of Quantity Surveyor during Post Contract
Ashworth76 has suggested a list of duties of the quantity surveyor during post
contract stage. Their list of duties consists of the following :
74 Ir Harban Singh K.S (2002) Engineering Construction Contract Management Pre-Contract Award
Practise, LexisNexis : Malaysia 75 Ibid 76 Contractual Procedure in the Construction Industry 4th Edition Pg 205
33
• Valuations for interim certificate
• Final accounts
• Remeasurement of the whole or part of the works
• Measuring and valuing variations
• Daywork accounts
• Adjustment to prime cost sums
• Increased cost assessment
• Evaluation of contractual claim
• Cost analysis
During the construction process under the traditional procurement, a quantity
surveyor will be required to assist the architect by to prepare the interim and final
payament and work to be carried out under proposed or actual variation works.
Depending on the form of construction contract employed his duties may extend
beyond these roles and in any event he is likely to be called upon by the employer to
provide advice as to the overall the projected expenditure and cash flows.
Moreover on very small contract the quantity surveyor may find himself
engaged as contract administrator in lieu of an architect and engineer. In relation to
his valuation functions it is important to keep in mind that unless he is required to do
so by the term of his contract, a quantity surveyor is not obliged to monitor the
progress of the works or give general advice to the employer.
In Aubrey Jacobus & Partners v. Gerrard77, HH Judge Stabb QC said,
“It is suggested that the quantity surveyor was under a duty to monitor or
control the costs and advice the client. I am satisfies that no such duty exists.
The architect is the team leader, he is primarily responsible for design and the
77 [1982] unreported
34
cost for it. If called upon, the quantity surveyor is there to provide information
as to cost but not in my view to monitor or control it by carying out checks at
regular intervals as was suggested”
During this stage a number a surveyor are now involved in the construction
management where the building works are carried out. However, there still remains a
degree of uncertainties was demonstrated in the case of Great Eastern Hotel v. John
laing Co Ltd78 where a construction management project for the refurbishment of a
hotel. The project did not run smoothly with the end result that it exceeded the budget
by nearly 80% and overran by 44 weeks. The client considered that the construction
manager was responsible for considerable portion of delays and extra cost. As a result
of hearing, the court decides was that a professional obligation under its agreement
with the client.
2.7. Quantity Surveyor as an agent to the construction client
It is important to outline the usual position of each in relation to other persons
concern in a building project, in particular the client (a building owner) and the main
contractor. There will be a contract between the client and the contractor and another
contract between the client and the quantity surveyor.
There is no particular law regulating the responsibility of an architect or an
enginner (professional) in his functions as agent of the employer as distinct from or
beyond the general law relating to agency79.
78 [2005] 99 Con LR 45 79 Kishore Gajria(2000) Law Relating to Building and Engineering Contract in Indua Fourth Edition,
Butter worths : India Pg 103
35
Quantity Surveyor acts as one of the agent to the client in the construction
industry. An agency may rise under a contract. Agent is a person who is employed to
do anything in the place of another and the person whom the agent so acts is known as
the principle. In accordance to Contract Act 195080 Section 135 define agent as,
“ a person employed to do any act for another or to represent another in
dealings with third person. The person for whom such act is done or who is so
represented is called the “principle”.”
The quantity surveyor is classified as a special agent whereby he performs
duties for a particular authorized commission or function only81. The rights and
liabilities of the engineer and others concerned with the supervision of building and
engineering works are the same as those agents82.
In the case of Lamphier v. Phipos83 Trindal CJ said:
“Every person who enters a learned profession undertakes to bring to the
exercise of it, a reasonable degree of care and skill; he does not undertake, if
he is an attorney that at all events you shall gain the cause npt surgeon
undertake that he will perform a cure not does the latter undertake to sue the
highest possible degree of skill.”
80 Contract Act 1950 Part X Agency: Appoinment and Authority of Agents 81 Seel, C (1984) Contractual Procedure for Building Students : Holt,RineHart and Winston Ltd :
Oxford Page 79 82 Kishore Ibid. 83 [1838] 8 CP 475
36
Figure 2.1 General Relationship of the agent, the principle and the third parties84
The general function of the agent is to act in behalf of the client and protect his
interest85. He is not the agent of the contractor86. Every agent has certain obligations
towards his principal all the usual duties and in particular he will owe his principle
contractual duties to serve him with reasonable care, skill, diligence and serve with
faithful87. He must display the utmost loyalty and good faith, obey instructions and
attempt not to exceed his authority as mentioned in the section 164 Contract Act 1950
agent is bound to conduct the business of his principal according to the directions
given by the principle.
84 Sources : Hinze, J Construction Contracts Second Edition 85 See R.B Burden Ltd. V Swansea Corporation [1957] 1 W.L.R. 1167 (C.A) at p. 1172 86 See Hosier & Dicinson Ltd v. P&M Kaye Ltd [1970] I W.L.R 1611 (C.A) at p 1615 87 Powell J.L & Jackson R.M (1987) Professional Negligence: Sweet & Maxwell :London Pg 50
Agent
Principle
Third Parties
Agreement for agent to act
on behalf of the principal
Agent negotiates with
third parties on behalf of
the principles.
Assume liabilities imposed by
actions of the agent when
agent has acted within the
scope of the agency
agreement
37
He is expected to utilize reasonable care and skill in fulfilling his duties and he
is obliged to count to his principle or client88. Section 165 Contract Act 1950 stated
that:
“Agent is bound to conduct the business of the agency with as much skill is
generally possesses by persons engaged in similar business, unless the
principal has notice his want of skill. The agent is always bound to act with
reasonable diligence and to use such skill as he possesses and to make
compensation to his principal in respect with of the direct consequences of his
own neglect, want of skill or misconduct but not in respect of loss or damage
which are indirectly or remotely caused by such neglect, want of skill and
misconduct”
In the case of Turpin v Bilton89, defendant owes a duty of care to the principal
to act with due care and skill. The standard of care will depend upon all the
circumstances. A paid agent in a profession is required to exercise the degree of skill
and diligence reasonably to be expected of a person exercising such profession
irrespective of the degree of skill he may possess.
An agent must act with the utmost good faith and loyalty in order to receive a
commission as stated in the case of Andrews’s v Ramsay & Co90 “it is only an honest
agent who is entitled to any commission” Seel, C91 in Contractual Procedure for
Building Students stated the list of obligations for an agent. These may be regarded as
giving corresponding rights to the principal. The agent :
88 Bockrath, J T (2000) Contracts and the Legal Environments for Engineers and Architects 6th Edition,
McGrawHill : United States Pg 273 89 [1843] 5 Man & G 455.58 90 [1903] 2 KB 635, 638 91 Seel, C (1984) Contractual Procedure for Building Students : Holt,RineHart and Winston Ltd :
Oxford
38
i. Must carry out their instruction and notify principle when this is
impossible
ii. Must exercise due diligence and whatever skill they profess
iii. Must act personally
iv. Must act honestly and account for any profit they receive in their
capacity as agent
v. Must account for any bribes or secret commissions and if they take any
may be liable to lose the contract, forfeit their remuneration and be
liable for criminal prosecution
vi. Must keep accounts and render them to their principle when required.
vii. Must not allow their own interests to conflict with those of the
principle
viii. Must not disclose confidential information
ix. Must not delegate performance of their duties to a sub agent without
authorities form the principle.
The relationship of principal and agent gives rise to a fiduciary duty on the
part of the agent. This arises because the relationship is one of trust, even though not a
relationship of trustee and beneficiary. The general principle is that the agent must not
let his own personal interest conflict with the obligations he owes to his principal.
This is an equitable duty, and is variously described. Conflict of interest must be
avoided eg - unless the agent has the consent of the principal, he must not make use
39
for his own personal benefit of information acquired in the course of his employment
as agent92.
In the Malaysian case of Cheng Keng Hong v. Govertment of The Federation
of Malaya93, the arbitrator held that under s 190 of the Contract (Malay States)
Ordinance 1950:
“ When agents has without authority done acts or incurred obligations to third
person on behalf of principal, the principal is bound by such acts and
obligations if he has by his words or conduct induced such third persons to
believe that such acts and obligations were within the scope of the agent’s
authority and that the architect’s assurance therefore bound the government.”
2.8 Professional liability
It is a precept of English law that if one man suffers loss or damages through
the negligent act of another then his remedy is in damage at law. It is another precept
that if a man holds himself out to be an expert, the standards to be applied to a
layman94.
However, it is important to determine the nature of the legal duties which the
professionals owe to their client or to other persons. Similarly in order to appreciate
the extend to which any particular professional might be held liable to pays damages 92 See Boardman v Phipps (1967), IDC - v - Cooley (1972) 93 [1966] 2 MLJ 33 (Malaysia) 94 Cecil Ray (1986) Professional Negligence, the Architecture Press: London
40
to a client or some other person it is necessary to understand the broad outlines of the
ways in which the law deals with issue of causation and compensation. It almost all
cases of professional negligence dispute between construction professionals and their
client the extend of professional legal obligations to the client are governed by his
contract with the client95.
2.8.1 Nature of the liability
Definition of liability in Osborne Concise Law Dictionary is ‘an amount
owed; or subject to legal obligation; or the obligation itself, he who commits a wrong
or break on a contract or trust is said to be liable or responsible for it’.
Similarly indicated in Dictionary of English Law96, liability is defined as
potentially subject to obligation, either generally as including every kind of obligation
or in more special sense to denote inchoate, future unascertained or imperfect
obligation, as opposed to debt, to essence of which is that they are ascertained and
certain. Liability is a present obligation of the enterprise arising from past events, the
settlement of which is expected to result in an outflow from the enterprise of
resources embodying economic benefits
A situation in which one party is legally obligated to assume responsibility for
another party's loss or burden. Liability is created when the law recognizes two
elements ‘the existence of an enforceable legal duty to be performed by one party for
95 Patten B (2003) Professional Negligence in Construction Spon Press: London Pg 4 96 Sinha & Deeraj (2000) Legal Dictionary 2nd Edition ILBS: Reprinted Edition Malaysia
41
the benefit of another' and the failure to perform the duty in accordance with
applicable legal standards97.
Furthermore, Frank (1988)98 noted that in law, a person may owe a duty to
another person by his own free will in a Contract or by the operation of common law
of tort. The failure to perform or negligently perform these duties or responsibilities
constitute a breach, therefore he or she will be answerable or accountable to the other
party who may have suffered as a result of his/her wrongful act.
According Siddharaj (1996)99, the main element in liability is duty and
responsibility. The duty and responsibility of the various parties in a construction
project may arise from contract or law of tort or both. It is also very much associated
with the interrelationship between them and the scope and nature of services they
provided in the project.
2.8.2 Theories of liability
In a case of Bodin v. Gill100, in which the court stated the broad rule of law
which applies to not only architects and engineers but other professional services. The
court stated that “The law imposes upon persons performing architectural,
97 Powell J.L & Jackson R.M (1987) Professional Negligence: Sweet & Maxwell: London 98 Frank E. and James A. (1988). Building Subsidence: Liability and Insurance. London: Oxford
BSP Professional Books.
99 Siddharaj V. S. Param. (1996). Negligence and the Duty of Care in the Construction Industry: A
Malaysia Analysis. Workshop Papers. Kuala Lumpur: Institute of Professional Advancement. 100 117 S.E.2d 325
42
engineering, and other professional and skilled services the obligation to exercise a
reasonable degree of care, skill, and ability, which generally is taken and considered
to be such a degree of care and skill as, under similar conditions and like surrounding
circumstances, is ordinarily employed by their respective professions.” However, the
standards of care and the proof required differ.
According Marianne (2005)101, depending on jurisdiction, plaintiffs can sue on
any one or a combination of the following theories of liability, each with differing
types and calculations of recovery:
a. Strict liability or Negligence Per Se (i.e., violation of building code or
other law)
b. Negligence (i.e., in the exercise of a reasonable degree of care, skill
and knowledge ordinarily employed by such building professionals)
c. Breach of Contract (i.e., as set forth in the purchase and sale
documentation)
d. Breach of Implied or Express Warranty (i.e., that the completed
structure was designed and constructed in a reasonable workmanlike
manner and usable for its intended purpose)
e. Fraud (Intentional Misrepresentation) and Negligent Misrepresentation
(i.e., on the grounds that the developer or property manager
intentionally misrepresented the quality of construction in false
statements and/or advertisements)
101 Marianne, J. (2005). Building defects spoil homeowners’ dreams. Portland: The Oregonian News.
The Aldrich Law Office, P.C. 522 SW 5th Avenue.
43
f. Breach of Fiduciary Obligation (i.e., that directors and/or officers of
homeowners’ associations have failed to adequately protect their
residents’ rights or interests)
g. Negligent and intentional infliction of emotional distress (i.e., that, as a
result of a given action or defective condition, the homeowner has
suffered emotional distress)
h. Nuisance (i.e., loss of enjoyment and use of property as a result of a
defective condition)
i. Products Liability (i.e., claims of a defective condition in installed
components)
A design professional can limit liability to a client largely through the contract
between the design professional and the client. The primary relationship between the
design professional and his or her client is one of contract. Yet, ambiguities are
common in contract language and a contract will often not protect against a
negligence suit or third party liability (e.g., flooding of an adjacent landowner). The
primary test for determining whether the design professional has adequately
performed his or her design duties for the client is conformance with terms of the
contract. The contract typically sets forth the design professional’s duties and, to a
lesser extent, how they are to be carried out. Contract standards, where vague, are
supplemented by terms furnished by law and oral understandings102.
102 Kulser J (2007) Professional liability for Construction in Floor Hazard Area, ASFPM Foundation :
44
2.8.3 Professional liability
Professional liability is the exposure one is subjected to when one is found
deficient in performing professional services. Supported by Gill103, he suggested that
the professional are bound to possess a reasonable amount of skill in the art or
profession they exercise for reward and to use a reasonable amount of care and
diligence in the carrying out of work which they undertake. Every person who enters
into a profession undertakes to bring to exercise of it a reasonable degree of care and
skill104.
As quoted by Wan Basiron in his writing105, performance is gauged by the
prevailing standard of care what is reasonably prudent to expect a quantity surveyor to
do under the facts and circumstances surrounding the projects. The standard changes
from time to time and from place to place. It means what is acceptable practice today
may be not acceptable tomorrow, vice versa. As a result, professional constantly
reevaluate their performance to ensure must compliance with the prevailing standard
of care.
John L. Powell106 in his article strongly suggested that, is summated the sea
change in the attitude of society and indeed the courts towards professionals when
things go wrong. Professionals and their insurers will need to adapt accordingly.
In a claim for negligent design against an architect arising from the collapse of
a concrete roof, Erle J. in 1853 said:
103 Enden and Gill’s Building Contracts and Practise. Seventh Edition Page385 104 Lanphier v. Phipos [1838] 8 C & P 475-479 (surgeon) 105 The Architect’s Duty of Care in Respect of Design to Third Parties. Unpublished thesis. UTM 106 John L. Powell. Professional Negligence the Changing Coastline of Liability at
http://www.4newsquare.com/Files/PDF/Article/JP%20article.doc assessed on 1 October 2009.
45
"... if you employ [an architect] about a novel thing, about which he has little
experience, if it has not had the test of experience, failure may be consistent
with skill. The history of all great improvements show failure of those who
embark in them"107.
The claim failed.
Contrast this with Lord Edmund Davies's observation in 1980 in a negligent
design case arising from the collapse of a television transmitter mast, reflective of a
more consumer orientated society:
"The law requires even pioneers to be prudent"108.
The claim succeeded.
According Jackson and Powell (1987)109, the professions operate in spheres
where success cannot be achieved in every case. Very often success or failure
depends upon factors beyond professional man’s control. Even where the critical
factors are within the professional man’s control, he still cannot guarantee success.
107 Turner v Garland and Christopher (1853) cited in Hudson's Building Contracts (4th ed., 1914) Vol.
2, p. 1. 108 I.B.A. v E.M.I. and B.I.C.C. (1980) 14 Build. L.R. 1 (H.L.) at 28. 109 Powell J.L & Jackson R.M (1987) Professional Negligence: Sweet & Maxwell: London
46
The problem which the courts have faced in devising a rational approach to
professional liability110 is that they must provide proper protection for the consumer.
Broadly speaking, the solution which has been found is to require that professional
men should possess a certain minimum degree of competence and that they should
exercise reasonable care in the discharge of their duties. In Lamphier v Phipos111 (a
medical negligence case tried in 1838) Tindal C.J directed the jury in these terms:
“Every person who enters into a learned profession undertakes to bring to the
exercise of it a reasonable degree of care and skill. He does not undertake, if
he is an attorney, that at all events you shall gain your case nor does a
surgeon undertake that he will perform a cure nor does he undertake to use
the highest possible degree of skill.”
In Greaves & Co. v Bayham Meikle112, Lord Denning M.R. stated:
“Apply this to the employment of a professional man. The law does not
usually imply a warranty that he will achieve the desired result, but only a
term that he will use reasonable care and skill. The surgeon does not warrant
that he will cure the patient. Nor does the solicitor warrant that he will win
case.”
Barros (1989)113 noted that the degree of success expected from different
professions may vary. Thus, the professional man as defendant enjoys a privileged
110 Liability must, of course, be established on balance of probabilities. In Bater v Bater [1951] P. 35 Denning L.J. said: “So also in civil cases, the case may be proved by a preponderance of probability, but there may be degrees of probability within that standard. The degree depends on the subject matter… The degree of probability which a reasonable and just man would require to come to a conclusion” 111 [1938] 8 C & P 475 112 [1975] 1 WLR 1095 113 Barros. A. A. J. (1989). Professional Liability and Construction. England: Chartered Institute Of
Building Englemere, Kings Ride, Ascot, Berkshire SL5 8BJ
47
position. His privileged position has been eroded in certain respects by developments
in the law of contract and tort.
2.8.4 Professional Liability in Contract
The word ‘contract’ may be defined as ‘an agreement enforceable by law’.114
In Malaysia the contract Act 1950 under section 2 (h) holds a contract to be ‘an
agreement enforceable by law’ 115.
As stated by Jackson and Powell (1987)116, the law of contract is the principal
means by which the courts have exercised control over the conduct of professional
men. In most instances there is a contract between the professional man and his
client, whereby the former agrees to render certain services and the latter agrees to
pay.
Davies (1989)117 noted that contractual liability arises from breach of duty
imposed by the terms and conditions of the contract entered into by the parties
concerned. In such a contract there is generally implied by law a term that the
professional man will exercise reasonable skill and care118.
114 Section 2(b), Contract Act 1950 115 Act 136 116 Powell J.L & Jackson R.M (1987) Professional Negligence: Sweet & Maxwell: London 117 Davies, C.M. (1989). Avoiding Claims: Practical Guide for the Construction Industry. Great
Britain: St. Edmundsbury Press Ltd. 118 This common law principle is now embodied in s.13 of the Supply of Goods and Services Act 1982.
48
When the professionals are appointed by the client, the duties are covered by
the contract between the client and themselves. Sometimes the contract conditions are
set out in a formal document whilst quite frequently the appointment is made by way
of a brief letter or even orally. In the absence of formal conditions, the professional’s
liability in contract will implied by law.
When a professional person provides a service such as the design of a
building, in the absence of an express provision the professional liability is limited to
using all reasonable skill and care. Whether the professional has used all reasonable
care and skill is established by applying the test found in Bolam v. Friern Hospital
Committee119 as cited by McNair J.
‘……Where you get a situation which involves the use of some special skill or
competence…the test is the standard of the ordinary skilled man exercising
and professing to have a special skill. A man need not possess the highest
expert skill at risk of being found negligent. It is well established law that it is
sufficient if he exercised the ordinary skill of an ordinary competent man
exercising hat particular art.”
In the quantity surveyor’s contract, one of the duties is to provide the initial
estimate of the likely cost of the work. There is obviously a duty of care required on
the part of the quantity surveyor when preparing these estimates. In this recent case of
Nye Saunders and Partners v. Alan E Bristow120, the Architect omitted to include for
inflation in his estimate or to mention that no allowance had been made. When
tenders were received they were well in excess of the estimate due to the effects of
inflation in the intervening period. The client decided not to proceed with the scheme
and was held to be entitled to refuse to pay Architect’s fees.
119 [19 120 [1987] 37 BLR 92,53,56
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Oliver J pointed out in Midland Bank v. Hett, Stubs & Kemp121 the obligation
to exercise reasonable skill and care is not only contractual term which ought to be
considered in a professional negligence action :
“The classical formulation of the claim in this sort of case as ‘damages for
negligence and breach of professional duty tends to be a mesmeric phrase. It
concentrates attention on the implied obligation to devote to the client’s
business that reasonable care and skill to be expected from a normally
competent and careful practitioner as if that obligations were not only a
compendious but also an exhaustive, definition of all duties assumed under the
contract created by the retainer and its acceptance. But of course it is not. A
contract give rise to a complex of rights and duties of which the duty to
exercise reasonable care and skill is but one”
“If I employ a carpenter to supply and put up a good quality oak shelf for me,
the acceptance by him of that employment involves the assumption of a
number of contractual duties. He must supply wood of an adequate quality
and it must be oak. He must fix the shelf. And must carry out the fashioning
and fixing with reasonable care and skill which I am entitled to expect of a
skilled craftsman. If he fixes the brackets but fails to supply the shelft or if he
supplies and fizes a shelft of unseasoned pine, my complaint against him is not
that he failed to exercise reasonable care and skill in carrying out the work
but that he has failed to supply what was contracted for.”
In the case of Kirkwood v Morrison, the judge said:-
121 [1979] Ch 384
50
“The measurement was made it seems, by sworn measurers or skilled persons
in their employment. It is not understood that in every instance the sworn
measurer, who may be the head of an extensive business, goes himself to the
ground, in place of sending a skilled assistant to report to him the details, he
adopting the result if it appears to him satisfactory and accepting the
responsibility.”
2.9 Standard of Care
It is the duty of a professional in performing professional services for a client
to have that degree of learning and skill ordinarily possessed by reputable peers
practicing in the same or similar locality and under similar circumstances. It is the
professional's further duty to use the care and skill ordinarily used in like cases by
reputable members of the profession practicing in the same or similar locality under
similar circumstances and to use reasonable diligence and best judgment in the
exercise of professional skill and in the application of learning, in an effort to
accomplish the purpose for which he was employed.
The Quantity Surveyor’s obligation is to exercise the degree of care, skill and
knowledge that is generally expected within the profession just like other
professionals. The Canadian Law of Architecture & Engineering, 2nd ed., sets out the
genrally-accepted professional standard of care for a consultant working on a
construction project:
“Unless expressly stated in the contract of professional services in all the
work done for the client, the architect or engineer owes a duty to exercise the
51
skill, care and diligence which may reasonably be expected of a person of
ordinary competence, measured by the professional standard of time.
…[A]rchitects or engineers are not obliged to perform to the standards of the
most competent and qualified members of the profession, unless they so
covenant. Unless they undertake to exercise a higher standard of care, what is
required of architects or engineers is reasonable skill, care and diligence as
judged generally by standards of competence in the profession in which they
practice…[Further],architects and engineers do not guarantee that their work
will successful. Provided that they have exercised reasonable judgement,
competence and diligence in doing the work, the fact that the work proves
unsatisfactory in some way will not render them liable to the client for breach
of contract and negligence122.
The duty arises not only as an implied (if not express) term of the contract
between the professional man and his client. It may also arise in tort. So a
professional may owe a duty of care to his client running concurrently with the like
duty in contract. He may also owe a duty of care in tort to a third party. Breach of the
tortious duty gives rise to liability in the tort of negligence.
A failure to fulfill any such duty is negligence. In Greaves & Co v Baynham
Meikle123 case, Lord Denning MR :
“ Although the judge talked about ‘the higher duty’, I feel sure that what he
meant was that in the circumstances of this case special steps were necessary in order
to fulfill the duty of care..” 122 B.M McLachlin, W.J Wallace & A.M Grant, The Canadian Law of Architecture & Engineering, 2nd
ed. (Toronto: Butterworths,1994) at 101-102 123 [1975] 1 WLR 1095
52
The standard of care of professionals in Greaves’ case has been cited by the
High Court of Malaysia in Hanafiah, Raslan, Mohamed & Partners v Weng Lok
Mining Co Ltd124 by Chang Min Tat J at pg 250.
The relevant standard of care of reasonable care and skill in giving advice is
reiterated in George Hawkins v Chrysler (UK) Ltd & Burne Associates125, where
Dillon LJ at 54 held:
“In this Court we are bound by the established rule that a professional man, as
in Greaves, only undertakes, when his advice is sought, to use reasonable care
and skill in his profession, and does not warrant the accuracy of his advice in
the absence of special circumstances”.
This is further affirmed by Neil LJ in his finding at 55:
“I have come to the firm conclusion, however, that it is not open to this Court,
except where there are special facts and special circumstances, to extend the
responsibilities of a professional man beyond the duty to exercise reasonable
skill and care in conformity with the usual standards of his profession. There
are many authorities which establish that this is the accepted duty of a
professional man.
In England, the House of Lords has adopted as definitive, in the case of
professional people generally, the following direction to a jury by McNair J in a case
124 [1977] 1 MLJ 249 125 [1986] 38 BLR 40
53
of Bolam v Friern Hospital Management Committee126
"Where you get a situation which involves the use of some special skill or
competence ... the test is the standard of the ordinary skilled man exercising
and professing to have that special skill. A man need not possess expert skill ...
it is sufficient if he exercises the ordinary skill of the ordinary competent man
exercising that particular art."
Similarly, in the case of City of Mounds View v. Walijarvi127
"Architects, doctors, engineers, attorneys and others deal in somewhat
inexact sciences and are continually called upon to exercise their skilled
judgment in order to anticipate and provide for random factors which are
incapable of precise measurement. The indeterminate nature of these factors
makes it impossible for professional service people to gauge them with
complete accuracy in every instance. Thus, doctors cannot promise that
every operation will be successful; a lawyer can never be certain that a
contract he drafts is without latent ambiguity; and an architect cannot be
certain that his structural design will interact with natural forces as
anticipated. Because of the inescapable possibility of error which inheres in
these services, the law has traditionally required, not perfect results, but
rather that exercise of that skill and judgment which can be reasonably
expected from similarly situated professionals ... Until the random element is
eliminated in the application of architectural sciences, we think it fairer that
the purchaser of the architect's services bear the risk of such unforeseeable
difficulties."
126 [1957] 1 WLR 582 13,76 127 263 NW2d 420 (Minn. 1978)
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2.10 Reasonable Skill and Care
In the vast majority of cases where allegations of professional negligence are
made against construction professional liability will depend upon whether the
professional exercised ‘reasonable skill and care’128 The general principles are set out
by McNair J in the medical negligence case of Bolam v. Friern Hospital Management
Committee129 :
“Where you get a situation which involves the use of some special skill of
competence…. the test is the standard of the ordinary skilled man of exercising and
professing to have that special skill. A man need not possess the highest expert skill at
the risk of being found negligent. It is well established law that it is sufficient if he
exercises the ordinary skill of ordinary competent man exercising that.”
Supported by Evans (1979)130 the standard of care required in the particular
situation needs to be establish. In Heaven v Pender131, Brett MR held that a duty of
care exists in normal circumstances whereby if a person does not take usual degree of
precaution another person or his property may be injured or damages.
In the dictum of Alderson B. in Blyth v Birmingham Waterworks Co132:
‘Negligent is the omission to do something which a reasonable man, guided
upon those consideration which ordinarily regulate the conduct of human
128 Patten B (2003) Professional Negligence in Construction Spon Press : London Pg 5 129 [1957] 1 WLR 582 at 586 130
Evans, R. and Galbraith, A. (1979). Revision Notes on Building Law. London: Newnes –
Butterworths. 131 [1883] 11 QBD 503 132 [1856] 11 Ex. 781, 784
55
affairs, would do, or doing something which a prudent and reasonable man
would not do.’
In Vaughan v. Menlove133 is a famous English tort law case that first
introduced the concept of the reasonable man in law. The reasonable person standard
hold each persons owes a duty to behave as a reasonable person would under the same
or similar circumstances134.
The ordinary skill requirement skill was approved by the House of Lords in
Saif Ali v Sydney Mitchell & Co(1980) as the test for all professional people. In this
case it was said that:
“No matter what profession it may be, the common law does not impose on
those who practice it any liability for damage resulting from what in the result
turn out to have been errors of judgement, unless the error was as no
reasonably well informed and competent member of that profession could
have made”
In a cases where a human actor is a professional and is acting within her
capacity, the reasonable person under the circumstances test becomes elevated to a
standard whether a person acted how a reasonable professional under the
circumastances would have, regarless of they are actually a professional or not135.
In addition, it must be noted that, on the other hand, in setting the standard of
skill and care to be expected of professionals, the courts do not differentiate between 133 [1837] 3 Bing N.C 467,132 E.R 490 (C.P) 134 Brown v. Kendall [1850] 60 Mass 292 135 Heath v. Swift Wings, Inc 252 SE 2d 256 (NC App 1979)
56
those professionals at the height of their profession carrying out substantial multi-
million-dollar contracts and those engaged at a more mundane level, perhaps in
relation to very low-budget projects136. This is because the courts view each case on is
merits and decide whether the professional fell below the requisite standard care in
that case.
Barros (1989) noted that the degree of success expected from different
professions may vary. Thus, the professional man as defendant enjoys a privileged
position. His privileged position has been eroded in certain respects by developments
in the law of contract and tort.
In Eckersly v. Binnie & Partners137 in a passage which could be applied
equally to any construction professional, Bingham LJ commented on the required
standard of performance for consulting engineer thus:
“A professional man should command the corpus of knowledge which forms
part of the professional equipment of the ordinary member of his profession.
He should not lag behind other ordinarily assiduous and inttilegent members
of his profession in knowledge of new advances, discoveries and developments
in his field. He should be alert to the hazards and risks inherent in any
professional task he undertakes to the extend that other ordinarily competent
members of the profession would be alert. He must bring to any professional
task he undertakes no less expertise, skill and care than other ordinarily
competent members would bring but need bring no more. The standard is that
of the reasonable average. The law does not require of a professional man
that he be a paragon combining the qualities of polymath and prophet”.
136 See for example Wimpey Construction UK Ltd v. Poole [1984] 2 Lloyds Rep 499 137 [1988] 19 Con LR 1.
57
2.11 Professional Negligence
In the legal Dictionary by Sinha & Dheeraj138, negligence is defined as a
“failure to use the amount of care which under the special circumstances of the case, a
reasonable man would use. In contract, negligence in carrying out the terms may
amount to a breach”.
In English Law of Tort, professional negligence is a subset of the general rules
on negligence to cover the situation in which the defendant has represents him or
herself as having more than average skills and ability139. Alderson B in the case of
Blyth v Birmingham Waterworks Co140 defined negligence as
“Negligence is the omission to do something which a reasonable man, guided
upon those considerations which ordinarily regulate the conduct of human
affairs, would do or doing something which prudent and reasonable man
would not do.”
By virtue of the services they offer and supply, professional people hold
themselves out as having more than average abilities. This specialized set of rules
determines the standards against which to measure the legal quality of the services
actually delivered by those who claim to be among the best in their fields of
expertise.
As discussed previously, the standard contract is employed by quantity
surveyor and client in the performance of their duties. On the basis of contract which 138 Sinha & Deeraj (2000) Legal Dictionary 2nd Edition ILBS: Reprinted Edition Malaysia 139 Refer to http://en.wikipedia.org/wiki/Professional_negligence_in English_Law 140 [1856] 11 Exch 781 at p 784
58
the plaintiff have asserted in the statement of claim, the views of Charlesworth &
Percy141 are relevant.
A duty to take care can be imposed by law or can be created by contract or
trust. The breach of the contractual duty to take care, however, is not negligence in the
sense in which the word is now being used. It is not uncommon to speak of the
negligent performance of a contract but that in that case, the word ‘negligence’ is used
in the second meaning explained above for example in the sense of careless but it is
now well recognized that breach of a contractual duty must be dealt with according to
the law of contract and cannot be regarded as tort of negligence.
The consequences of the problems resulted from negligence act or as a breach
of duty to take care resulting damage to another can be severe in both human and term
of cost.
Powell and Jackson (1987)142 stated that an award of damages is the normal
remedy sought for breach of duty by profession man in certain circumstances he may
be deprived of his fees. Recovery of damages is subjected to the overriding
requirement that loss and damage for which compensation is sought is not too remote.
Broadly this requirement demands that the loss or damage must have been:
a. Caused by the breach of duty and
b. Foreseeable and not precluded from being compensatable by consideration
of public or social party
141 Charlesworth & Percy (1998) Negligence (9th Edition) Sweet & Maxwell Ltd : London Pg 12
142 Powell J.L & Jackson R.M (1987) Professional Negligence: Sweet & Maxwell: London
59
The fundamental principle under laying the award of damages is to put the
injured party in position he would have been in had the breach of duty not occurred,
so far as this can be done by the award of money143.
Furthermore, Evans (1979)144 emphasized that the main remedy provided by
English Law is damages. This is monetary compensation to cover the injury suffered
so afar as money is able to compensate. And he added that the damages may be
classified as liquidate and unliquidated.
a. Liquidated
Where the liquidated damages are whenever amount claimed can be
ascertained by calculation or fixed by a scale it is said to be ‘liquidated’. Often
contracting parties will make provision for sum to be paid in event of breach of
contract.
b. Unliquidated
An award assessed to put the injured person, insofar as money can do so, in as
good a situation as he would have been had he not been injured or had the contract
been properly performed.
143 See Ben Patten on Professional Negligence Pg 15 144 Evans, R. And Galbraith, A. (1979). Revision Notes on Building Law. London: Newnes –
Butterworths.
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CHAPTER 3
ANALYSIS CASE : LIABILITY OF QUANTITY SURVEYOR DURING
PRE-TENDER STAGE
3.1 Introduction
Claims for professional negligence are now common. Indeed they will become
more so. This will be a product of increasing demand for their services, specialisation,
higher standards and intolerance of bad performance by highly educated societies145.
Quantity surveyor can be liable for the damages suffered by the client146 due to
the negligence in preparing documents, negligence in preparing estimates and was
found liable to client for recommending the unsuitable contractor for the construction
works147.
145 John L. Powell . Professional Negligence The Changing Coastline Of Liability at
http://www.4newsquare.com/Files/PDF/Article/JP%20article.doc assessed on 1 October 2009. 146 Refer to case Bains Harding Construction & Roofing (Aust) Pty Ltd v. McCredie Richmond &
partners Pty Ltd 147 Refer to case Pratt v. George J Hill Associates
61
In J Jarvis & Sons Ltd v Castle Wharf Developments Ltd, Gleeds Management
Services Ltd & Franklin Ellis Architects Ltd, the Lord Justice Gibson, in giving the
leading judgment of the court, recognized that historically there has been judicial
reluctance to impose duties of care on a professional agent acting within his authority
in the tendering process.
It follows that the standard to be applied is generally the standard recognized
to be good practice in the relevant profession. It has long been held that if a consultant
acts negligently in the performance of his duties, and the employer suffers loss as a
result, then the employer would have a claim for damages against the consultant under
the .
The court would hear expert evidence from both parties as to good practice in
the professions of architect and engineer and the correct approach to be taken by
either professional to working with professionals of another discipline. The judge
would consider the conflicting expert testimony and decide which he preferred that is,
which was the more cogent and authoritative. Occasionally he will find none of the
experts entirely persuasive and will formulate a decision which is somewhere between
the positions they adopt. Consequently it will be immediately apparent that expert
evidence plays a crucial role in professional negligence actions against
professionals.148 Quantity Surveyor can also be sued for damages arising from this
negligence.149
However, it should be noted that in deciding whether a professional exercised
reasonable skill and care the court is not merely balancing the views of the
professionals whom the parties have called to give expert evidence. There are well 148 Ben Pattern on Professional Negligence In Construction (2003) 149 Wearne Stephen (1989) Civil Engineering Contracts : An introduction to construction contract MHL
Typesetting Limited : Great Britain
62
established considerations which govern the meaning of reasonable skill and care. The
first of these is that the professional is not judged upon his actual expertise but the
expertise of an ordinarily competent member of his profession. Consequently a trainee
quantity surveyor who carries out some of the functions of a quantity surveyor will of
generally be judged by the standard of a trainee, but of a qualified and indeed
ordinarily experienced quantity surveyor150.
3.2. Duties to prepare the cost estimate during pre-tender
Normally, based on the architect’s and engineer’s design, the quantity surveyor
will provide a project cost estimate to the client. This cost estimate will be an
important tool for a client to make a decision whether to proceed or to postpone the
project.
3.2.1 Preparing estimate with reasonable care
The quantity surveyor is required to exercise care in preparing the estimate
and to give an alarm to the client on the uncertainties of the cost. In the Contract Act
1950 section 167, one of the duties of the agent is to communicate to the principle any
information in relation to the principle business. It is the duty of the professional to
inform and warn the client.
150 Jackson R.M. and Powell J.L., Professional Negligence (5th edition)
63
The professional must also asked for an estimate of the cost of the proposed
work, they should give an honest and careful estimate151. In Moneypenny v
Hartland,152 the employer refused to pay the engineer’s fees since the actual cost of a
project greatly exceeded the engineer’s estimate. The estimate is shown by tenders to
be excessively low then he is in breach of an implied term of his agreement and can
be dismissed without recompense. The court expressed the general rule to be in these
words:
“Supposing negligence or want of skill to be sufficiently made out, unless that
negligence or want of skill has been to the extent that has rendered the work
useless to the defendants, they must pay him and seek their remedy in a cross-
action”
“A man should not estimate a work at a price at which he would not contract
for it; for if he does, he deceives his employer… If a surveyor delivers an
estimate greatly below the sum at which a work can be done, and thereby
induces a private person to undertake what he would not otherwise do, then I
think he is not entitled to recover; and this doctrine is precisely applicable to
public works. There are many in this metropolis which would never have been
undertaken at all, had it not been for the absurd estimates of surveyors”.
Cost underestimation is defined as the act of assessing the cost of a future lower
than what actual cost turned out to be once the venture was implemented. Cost
underestimation causes cost overrun153 where, in example an engineer was held
negligent in failing to examine the nature of the soil in which to place foundations for
a bridge. Cost of construction was grossly underestimated.
151 Moneypenny v Hartland [1826] 2 C & P 378, Columbus Co v. Clowesc[1903] 1 KB 244 152 [1826] 2 C & P 378, 153 Refer to Flyvbjerg B, Holm M S & Buhl S (2002) Underestimating Costs in Public Works Projects
Error or Lie? APA Journal Vol 68 No 3Pg 279 assessed at http://
Flyvbjerg.plan.aau.dk/JAPAASPUBLISHED
64
The allegation for underestimate by the professional can be in the case of
Gordon Shaw Concrete Products Ltd v. Design Collaborative154. Defendant Design
Collaborative Ltd., an architectural firm was instructed to see if such a home could be
built for approximately $60,000 and, if it did seem feasible, to provide the final
drawings and specifications for such dwellings. For this purpose the parties entered
into a standard form architectural contract. The preliminary design report, when
submitted a few months later, estimated a building cost of $60,144. But when the final
drawings were submitted, and estimates of true prospective cost solicited, it transpired
that the design could not be implemented for less than $100,000, and perhaps much
more. The appeal was dismissed. Nova Scotia Supreme Court, Appeal Division held :
“In preparing and submitting an estimate of construction cost, an architect
was bound to do more than just submit a rough guess as to the cost of the job;
the estimate must bear some relation to reality, and reflect a competent
professional judgment. In view of the gross disparity between its estimate of
cost and the ultimate cost of implementing this design, the architectural firm
had failed to discharge that duty.”
“While a clause (cl. 4) in the agreement provided expressly that the architects
did not warrant the accuracy of their estimates, that clause did not even
purport to exonerate them from liability for negligence; and accordingly
afforded no defence.”
The mentioned Gordon’s case is where the building professional failed to
produce a design with the reasonable cost. The architect was held failed to perform
his duties to prepare a design and an accurate based on the client’s requirement. The
architect, who has enter a contract with the client must perform his job with care and
carefully prepare the design and estimate in accordance with the given budget.
Although the exemption clauses has been set out in the agreement, but in according to
154 [1986] CarswellNS 104
65
the court judgement, the clauses does not free them from the liability where the client
suffer the damages due to the negligence act by the architect. In relation to the
quantity surveyor duties, he must work closely with the designers in preparing the
estimate to make sure that the estimate that he produces is not beyond the client’s
budget. It is stated in the standard retainer the quantity surveyor must prepare the
estimate with care for his client.
In Copthorne Hotel (Newcastle) Limited v Arup Associates155, also enunciated
the same principle where Copthorne was suing Arup for the difference in the piling
costs as constructed from those in Arup's original estimate. The claim was rejected
due to lack of evidence but Judge Hicks said any claim would have had to be based on
the difference between the figure quoted for the piling in the original estimate and that
which an engineer, exercising all reasonable skill and care, would have included in
the cost estimate. The claim, he said, could not be based on the actual costs of the
piling because this may have increased for any number of reasons. The estimate
allowed £425,000 for this work; the successful tender was for £930,000. The Judge
said of this discrepancy as follows:-
“I hope and believe that I am not over simplifying if I record the impression
that the plaintiff’s main hope was that I would be persuaded to find in their
favour simply by the size of the gap, absolutely proportionately, between the
cost estimate and the successful tender.
In the Malaysian case, Lim KC & Associates Sdn v. Pembinaan Udarama Sdn
Bhd156, the client’s complaint against the architect for an allegedly bad initial estimate
of project cost failed because he had not actually tested the estimate by putting the
project out to tender in the form proposed. The appellant architects carried out
preliminary cost planning and feasibility study for the respondent developers on a
mixed commercial / residential development in Kuala Lumpur. The developers 155 [1997] 85 BLR 22 156 [1980] 2 MLJ 26
66
subsequently abandoned the scheme but refused to pay the architects for their work
and that of their quantity surveyors, on the ground that it was because of their gross
under estimate of the cost of the scheme that it had to be abandoned.
From the various cases discussed above, it is essential to provide accurate
information to clients or contractors at the initial stages of development, giving
negligent or misleading estimate to a client can cause all sorts of problems such as
project can be postpone and losses to the client.
In the case of Clarke v. Adams157, the plaintiff was treated by the defendant, a
physiotherapist, for fibrositic condition of the left heel. He suffered injury by burning,
which resulted in his having to have the leg amputated below the knee. Before
applying the treatment the defendant gave the plaintiff this warning:
'When I turn on the machine I want you to experience a comfortable warmth
and nothing more; if you do, I want you to tell me.'
Evidence was given by the chief examiner for the Chartered Society of
Physiotherapy that that warning was an entirely proper one. The learned judge said
that clearly in physiotherapy the cooperation of the patient was vital. The instrument
used was dangerous because burns caused by it could lead to serious consequences. It
was extremely unlikely that the defendant, a skilled physiotherapist, on being told by
the plaintiff that he was undergoing such pain that he could not bear it, would take no
precautions. There was no evidence that the apparatus used was defective. The sole
question was therefore whether the warning given by the defendant, said to be an
entirely proper one, was sufficient.
157 [1950] 94 Sol. Jo. 599
67
There must in such circumstances be a warning of danger as it would appear to
a hypothetically reasonable person. Would the words used have warned such a person
that his safety depended on his informing the defendant the moment he felt more than
a comfortable warmth? The warning must be couched in terms which made it
absolutely clear that it was a warning of danger. He was not satisfied that this
warning, although the very warning which the defendant had been taught to give, was
adequate, and on that ground the plaintiff was entitled to recover.
In the construction industry scenario, the judgment passed by Judge Esyr
Lewis Q.C in the case of Gable House Estates v The Halpern Partnership158, clearly
be evidence for a professional owes a duty to exercise standard of care in preparing
the estimate.
In this case, the plaintiff had acquired a tenanted property originally built in
1922, and had three options, refurbishment, redevelopment or resale with vacant
possession. Defendant, architects specializing in refurbishment schemes for historic
and listed buildings, were engaged under an agreement based on the standard RIBA
form and suggested four alternative development schemes with different net lettable
areas. Plaintiff chose a design based on one of Defendant 's schemes and practical
completion was achieved. Subsequently the net lettable area was found to be
substantially less than that estimated by Defendant. Plaintiff complained that
redevelopment would not have been undertaken but for Defendant 's negligent over
estimation of net lettable space.
Judge Esyr Lewis Q.C. giving judgment for Plaintiff, that the Defendant had a
contractual duty to exercise reasonable skill and care in respect of the schedules of
area they produced. The drawings produced by Defendant fell below the standard of a
158 [1995] 48 Con.L.R. 1
68
competent architect and in the circumstances, Defendant owed the same duty of care
relating to the schedules of area drawn up by the quantity surveyor as they did in
relation to the rest of the cost plan. Defendant did not adequately warn Plaintiff as to
the known uncertainties of the cost plan schedules. Plaintiff relied on the information
and estimates provided by Defendant in making the decision to redevelop. If Halpern
had given proper warnings it was improbable that Plaintiff would have gone ahead
with the redevelopment.
On the concurrent liability point, he followed (as he was bound to do) the
House of Lords decision in Henderson v. Merrett Syndicated Ltd 159 where in this case
the professional, architect owes a concurrent duty to his client in both contract and in
tort. This concurrent duty arises and enables a plaintiff to recover damages for
economic loss in a contract for a professional service, ‘certainly where the defendant
has special knowledge or skill and assumes responsibility towards the plaintiff’160.
The decision made by the judge in the above case is purely an important
decision in emphasizes that professional including the quantity surveyor must be
extremely careful in giving the advice especially related to the cost of the project.
In the case of Tyrer v District Auditor for Monmouthshire161, a surcharge of
GBP 12,000 was imposed on Plaintiff, a quantity surveyor, in respect of his
negligence in his employment with the Council in approving excessive quantities and
prices in some contracts with a firm of building contractors which led to irrecoverable
overpayments to the Contractor. There was, in addition, a simple mathematical error
in issuing an interim certificate. The judge emphasis in the above case that, the error
159 [1994] 3 WLR 761 160 Contract Journal (1995) Some Good advice assessed at
http://www.contractjournal.com/Articles/1995/09/21/27269/some-good-advice.html on 8 November
2009 161 [1973] WL 39721
69
could have happened at any time, but "the obligation was on the appellant to ensure
that adequate checks were made". Obviously the client will rely on the professional to
prepare an estimate. Hence, it is a duty of care for a professional to make sure the
estimate is correct and carries out the adequate check.
In preparing estimate, the professional must include necessary precaution in
order to make sure the estimate is reliable. Refer to the decision made in the case of
Saunders & Partners v AE Bristow.162 In 1973, defendant retained plaintiff as his
architects to prepare a planning application for the proposed renovation of his house.
Defendant told plaintiff that he had about GBP 250,000 to spend and asked for an
estimate of the likely cost. Plaintiff consulted a quantity surveyor and gave an
estimate of GBP 238,000 but no quantification in respect of future inflation was
made. In March 1974, planning permission having been obtained, defendant engaged
plaintiff to provide the services necessary for the completion of the project. In
September 1974, plaintiff gave an up to date estimate amounting to GBP 440,000.
Defendant then terminated their employment and plaintiff sued for their fees.
Defendant contended that plaintiff had failed in their duty to take care to provide a
reliable approximate estimate and in particular to draw attention to the fact that
inflation would drive the figure beyond the amount available.
Held in the Court of Appeal (Civil Division) that the increment in the estimate
was due to a large increase in inflation of which plaintiff ought to have warned
Defendant. Plaintiff was therefore in breach of duty and could recover no fees.
As shown in this case, the person who prepares the estimate will owe a duty of
care to include inflation in the estimate for future cost projection. The client can claim
for damages due to the negligence act by the estimator as they rely on the estimate
prepare by the person who is deemed to possess expert skill. The professional in
162[1987 37 B.L.R. 92 Times, April 27, 1987 1988 WL 622685
70
specific the quantity surveyor can succeed in raising defense by showing that have
perform the duties with care, in example to include the cost for projected inflation in
the estimate.
3.2. Liability in Measuring Quantity and Preparing bills of quantity
The courts dealt with many cases involving liability for inaccurate bills of
quantities and the decisions appear to be inconsistent. The apparent inconsistency was
due in part to the distinguishing features of the various contracts and representations
which were made regarding the quantities.
3.2.1 Prepares a bill of quantity with reasonable care and skill
Xavier163 suggested that information given at the pre-contract or tender stage
would be necessary as well as helpful especially to the contractor. Whoever (whether
a quantity surveyor, architect or engineer) prepares a bill must do so with reasonable
care and skill. This is to avoid additional claim due the inaccurate quantity by the
contractor. It is almost inevitable, where the bills of quantities have been hurriedly
prepared at the last minute by unqualified and/or inexperienced consultants, that there
will be discrepancies. Usually the discrepancies are under-measured quantities or
forgotten items164.
163 Xavier G (1998) Contractor’s Obligation in a Malaysian Construction Contract, Construction
Journal : Westlaw 164 James B Longbottom Brian E Rawling & Associates Limited, Quantity Discrepancies
in Bills of Quantities, Surveying practice: Surveyors Time Pg 19
71
It was held in Bolt v. Thomas165 that where it was stipulated that the client, a
developer should pay the architect for the calculation of the quantities, and he had
done so, then the builder was entitled to compensation from the architect if the bill
was not reasonably accurate.
Another successful claim held in the case Dudley Corporation v. Parson and
Morrin Ltd166, where in this case a rate for excavating in rock included in the bill of
quantities was far too low. The contractors price an item for excavating 750 cu yd in
rock at £75 in example two shillings a cube. In carrying out the excavations described
in the drawings and bills, the contractor excavated a total of 2230 cu yd of rock. The
architect valued the work at two shillings a cube for 750 cu yd and the balance at £2 a
cube. The final account quantity greatly exceeded the bills of quantity. The contractor
claimed for the payment of an enhanced rate for the quantities is excess of the bills of
quantity. It was the decision of the Court of Appeal that all the final account quantities
should be paid for at bill rates.
‘Should any error appear in the Bills of Quantities other than in the
Contractor’s prices and calculations, it shall be rectified, and such
rectification shall constitute a variation of the Contract, and shall be dealt
with as hereinafter provided.167’
Appear in the above cases that, the client needs to bear the additional cost as a
result of the inaccurate the bills of quantity prepare by the professional. As an agent to
the client, the professional must be competence in delivering their duties. Failure to
perform a duty with reasonable skill and competence is a breach of contract. It is
165 [1859] (Hudson’s Building and Engineering Con-History of Construction Contracts and Case Law
7, tenth edition, at page 196) 166 Court of Appeal 167 Model Form of Contract (RIBA) clause 12a
72
obvious that the professional owe a concurrent liability to both clients under a
contract and in tort to a third party.
The provisions in the above contract have survived to the present day in
various form of contract and court judgement, in the case of Savage v Board of
School Trustees168, the estimate of $110,000 was twice given in respect of proposed
works. When tenders were received, the lowest was $157,800, 43% over the
estimated cost. The scope of the project was significantly reduced. The claimant
again estimated that the project would cost no more than $110,000, yet the lowest
tender for even the scaled down project was $132,900. The Judge commented;
“So on this one school, the plaintiff was three times gravely in error in his
estimates. And three times are a lot”.
The finding that the plaintiff had been negligent was based largely upon the
scale of the underestimation, and the frequency with which it was repeated. But on
analysis, the Court’s conclusion was based in large part upon a careful consideration
of the plaintiff’s workings, and the conclusion that “much of the plaintiff’s difficulty
was caused by his methods of checking and re-checking his estimates”.
Mistakes in the bill descriptions or quantities are unlikely to be remedied as a
legal rectification of the terms of the contract to reflect the true intention of the
parties. It is more likely than not, that the common intention will be that the tendered
price should prevail, rather than a price revised to account of the error. Most standard
forms of contract which adopt Bills of Quantities make provision to deal with errors
in bill descriptions and quantities, distinct from the effect of variations169.
168 [1951] 3 D.L.R. 39 169 Atkinson (2000) Bills of Quantity, assessed at http://atkinson-law.com/library/article.php?id=125
73
This means that the claimant only has to prove that the bills of quantities were
untrue or inaccurate. The burden is then transferred to the respondent who has to
show he had reasonable grounds to believe the bills of quantities were true170.
The standard of reasonable care and skill is not a standard of perfection. It is not
sufficient to show an error in order to establish a failure to exercise reasonable care
and skill. Actual negligence must be proven171. In the House of Lords decision in
Sutcliffe v Thackrah172 Lord Salmon held as follows:
“It by no means follows that a professional valuation was negligently given
because it turns out to be have been wholly wrong. Nor does the fact that an
architect’s certificate was given for the wrong amount of itself prove
negligence against the architect. Whether or not there has been negligence
is, of course, a pure question of fact depending upon the particular
circumstances of each case.”
.
The leading case is Derry v Peek173 where the English House of Lords held
that for there to be a fraudulent misrepresentation, the claimant must prove fraud by
showing that the respondent falsely made statements either:
• knowingly; or
• without belief in the truth; or
• recklessly, careless whether it be true or false.
A quantity surveyor’s task involves very large numbers of arithmetical
calculations, the question whether an occasional slip or error may be insufficient to
170 Ibid 171 PB Malaysia Sdn Bhd v. Samudra (M) Sdn Bhd In the High Court of Malaya at kuala Lumpur
(Commercial Division) Suit No. D5-22-2025 OF 2000 172 [1974] AC 727, at 760 173 [1889] 14 Appeal Case (HL)
74
sustain an allegation of professional negligence against quantity surveyor174. There
are few court cases in relation to the above issue.
In the case of London School Board v Northcroft in 1889 a school board
employed a quantity surveying for measuring up buildings of a value of £12,000
which had been completed. They brought an action against him for negligence in
making two clerical errors in the calculations, whereby the board had overpaid two
sums, one of £118 and the other of £15. It was held that as the quantity surveying had
employed a competent skilled clerk who had carried out hundreds of intricate
calculations correctly, the quantity surveying was not liable for these two errors.
Clients seek the services of a professional person of preeminent standing in
their field, and pays appropriately higher remuneration for their services, then a higher
standard will be expected than that of the ordinary, everyday practitioner in that field .
The employer, who is paying the quantity surveyor, should get the proper price for the
job based upon correct or corrected quantities, items and descriptions determined in
accordance with the Standard Method of Measurement in return.
3.3.2 Measurement must be done in accordance to Standard Method of
Measurement
The quantity surveyor requires following the standard work listed in the
standard method of measurement in order to prepare bills of quantity as stated in the
174 Frank E. and James A. (1988). Building Subsidence: Liability and Insurance. London: Oxford
BSP Professional Books.
75
Standard Form Contract as supported by the case of Bryant and Sons Ltd v .
Birmingham Saturday Hospital Fund175.
It was held that the contractor’s claim must succeed for excavation in rock
which was not measured in accordance with the principle of the Standard method of
Measurement under the RIBA form of contract. The standard method of measurement
therein required excavation in rock to be measured separately but this was not done
therein. Nevertheless if the Government here desires to depart from the principles of
the SMM, the Government must specifically state so expressly and this usually
provided in the preamble section of the Bills of Quantities.
This reference to the Bills of Quantities having been prepared in accordance
with the principles of the SMM is ambiguous by reason that it is not stated which
edition of SMM is applicable. The sensible interpretation would be the current edition
at the time of entering of the Contract.
Any work carried out by the contractor which is not measured separately in
accordance with the CESMM may unless there is a statement to the contrary be
subject to a claim for additional payment.
In the case of A.E. Farr Ltd v. Ministry of Transport,176 the appellants were
civil engineering contractors who undertook to carry out excavations and roadworks
for the construction of an underpass. The contract, in the ICE (4th ed.) standard form,
was a measurement and value contract; the work done by the contractor was measured
when completed and paid for at the rates stated in the bills of quantities. Rates were
stated in the bills of quantities for excavations necessary to accommodate the structure
175 [1938] 1 All ER 503 176 (1965) 5 BLR 94.
76
of the underpass but no rates were stated for excavations required to provide working
space.
The appellants contended that clause 16 constituted a promise to pay a
reasonable price for items which did not appear in the bills of quantities, which were
unpriced, and could only be written into the contract subsequently when the necessary
measurements of additional excavation had been made. Held, on a case stated, on the
true construction of cl. 16 in the light of all the contractual documents the appellants
were entitled to be paid reasonable rates for the working space excavations.
The bills of quantity having prepared ‘in accordance with the principles of the
Standard Method of Measurement’ is said to be ambiguous and obscure. In the
Standard Form of JKR 203A, stated that the measurement must be prepared in
accordance to the SMM produced by Institution of Surveyors Malaysia. However in
the PAM 2006 it is clearly stated that the contract bills are deemed to have been
prepared in accordance with “current edition” as sanctioned by the Institution of
Surveyors Malaysia. The term current edition used on the PAM 2006 is the new
improvement in the sense that the current SMM is effectively incorporated into a
contract by such reference.
It is incumbent on the architect and the quantity surveyor to make clear any
departure of SMM. This may be done either by a warning preamble in each case or by
measuring and describing the items in such a way as to show that a departure has been
made and it’s extend177.
177 Sundra Rajoo (1999) The Malaysian Standard Form of building Contract (The PAM 1998 Form)
Second Edition MLJ Journal : Kuala Lumpur
77
4.4. Liability in recommending the acceptance of a tender
After tenders have been received the quantity surveyor will draw up
comparisons and will advice the employer. In the larger projects the quantity surveyor
will then be part of the employer’s team for the purposes of negotiating with short
listed contractor so that the employer will get the best price. A construction
professional will be liable to the Employer if they carelessly give a positive
recommendation in favour of a Contractor. Failure to take reasonable steps in
selecting contractor will later cause damages to the principal, leads the quantity
surveyor to the negligent act.
In the case of Pratt v George Hill & Associates, an architect wrote to their
client saying that two firms of tendering contractors were “very reliable”. The client
chose one of them. In fact, the chosen contractor was wholly unreliable, leaving the
work in such a state that it needed to be effectively reinstated from slab level. The
client had paid some £2,000 on interim certificates and subsequently incurred costs of
just under £4,000 in an arbitration against the contractor before the contractor became
insolvent.
The judge found that the architect had been in breach of their duty of care to
their client and that the disastrous state of the works was due to the unreliability and
incompetence of the contractor, but disallowed these two sums on the ground that
they actually arose from the insolvency of the contractor. The case then went to the
Court of Appeal, which held that as a matter of causation, the losses concerned were
caused by the contractor’s lack of competence and the state in which he had left the
work, and the two sums were recoverable by the claimant.
78
More recently, in Partridge v Morris178, the Judge held that the Architect’s
duty of advising the Employer of the relative merits of tenders extended to the
consideration of financial acceptability.
In this case where a house holder engaged an architect to prepare the designs
for a house alteration. The defendant, architect also assisted in the tendering process
and recommended a contractor to the house holder which in case is the plaintiff.
Unfortunately the recommended contractor was on the verge of insolvency which
affected the quality of the work carried out. The householder terminated the
contractor’s employment and consequently incurred considerable extra expense in
getting the works completed. There was a little point in pursuing the original
contractor for these costs as he was insolvent.
As a result Partridge, the householder sought to recover damages from the
architect, part of the claim was that Morris should have reviewed the financing
standing of the contractor prior tp recommending the acceptance of their tender.
Although there was no express term in the agreement between Partridge and Morris
requiring to carry out a financial check the court referred to an RIBA publication,
which outlined an architect’s duties where it was stated that an architect should
discreetly check the financial status of firms providing a tender. He said:
“In my view the duty which the defendant undoubtedly undertook of advising
the plaintiff on the relevant merits of the tenders extended to consideration of
the financial acceptability of the tenderers. It was a matter upon which the
plaintiff needed advice; there was no other member of the professional team,
as there might be, more immediately concerned with that responsibility, and it
therefore remained with the defendant as the plaintiff’s general professional
adviser in relation to the review of tenders and the choice of a contractor”.
178 [1995] CILL 1095
79
The Judge held that the Architect should have undertaken one or more of the
following checks on the Contractor’s financial standing:-
• Checking with Builders Merchants;
• Obtaining a bank reference;
• Obtaining trade credit references;
• Making enquiries of other Architects as to the Contractor’s financial
standing;
• Undertaking a Company Search or asking the Contractor themselves for
their audited and latest management accounts.
He held that the failure to make the necessary enquiries was causative of
damage because, but for the failure by the Architect to make one or more of these
enquiries, the Contractor would not have been selected. The quantity surveyors are
sometimes asked by their client to provide advice on the selection and appointment of
contractors and in such cases it is important to be aware of what liabilities may be
associated with the advice provided
.
80
CHAPTER 4
CONCLUSION AND RECOMMENDATION
4.1 Introduction
As it now stands, contractors are unlikely to succeed in claims for damages
against consultants if the claim is one which the contractor can make against the
employer. The Court of Appeal of British Columbia held that where an architect's
estimates for a school building were 43 per cent out this was an unreasonable error
and the burden of disproving negligence rested on him179.
4.2 Research Finding
The quantity surveyor has been long establishing in the Construction Industry
and their duties have been widely recognized as important to the industry in terms of
179 Savage v Board of School Trustees of School District
81
contractual advice and costing. .
In performing his duties during the pre tender stage, the quantity surveyor has
to ensure that all action taken with care and skillful in accordance to the standard by
the professional. As an agent to the client the quantity surveyor is liable to his client
in the event of negligence. The client has the right to claim for damages from the
quantity surveyors
4.3 Study Constraint
Time was the main constraint for this study, the quantity surveyor’s liability is
a very broad study and it has to be narrowed down as stated in the limitation of the
study.
4.4 Suggestion for Future Study
This study is only focusing on the liability of quantity surveyor during pre
tender stage for certain duties such as preparing estimate, preparing quantities and
bills of quantity and liability in giving recommendation of contractor to the client in
the tender report. Due to the constraint mentioned above, the are various liabilities of
quantity surveyor that can be conducted as a further study especially during the post
contract stage. Further study also can be focusing on the liability of the quantity
surveyor under the Malaysian case in accordance to the Malaysian Standard Form of
Contract. Perhaps by expanding the study for future research can contribute to the
more clear view of the extend of the liability of the quantity surveyor.
82
4.5 Conclusion
The duties of a quantity surveyor to his construction client can be apply to the
principal of the agency law. Where the quantity surveyor acts as agent appointed by
the principal, he must perform the duties in accordance to the engagement contract
between them with reasonable skill and diligence.
The profession of the quantity surveying is governed by a professional body
that set rules and regulation and standard of duties that surveyors must follow. Only a
person registered a full member of the professional bodies which is in Malaysia,
Board of Quantity Surveyor Malaysia (BQSM) and possessed two years of working
experience can be classified as a quantity surveyor.
The quantity surveyors must perform their duties under a standard of care. In
performing their duties, the quantity surveyors carry a liability. Failure to perform the
duties with a reasonable skill and care will cause the quantity surveyor to owe a duty
to their client. Although the surveyor has no direct contractual relationship with a
third party, they are liable for losses or damages suffered by the third party through
the allegation to their client.
In the construction industry, a quantity surveyor is involved from the
beginning until the completion of a project. During the pre tender stage, a quantity
surveyor’s duties are more on the contractual and cost advisor to the client.
• The responsibility to prepare the cost estimates
83
Based on the research carried out, the quantity surveyor should give an honest
and careful estimate and responsible to exercising care 180 when they are required to
prepare a cost estimate for a particular project.181 They have to be extremely careful to
avoid the underestimation which later can caused the losses to the client. In addition
the quantity surveyor is responsible to collaborate with the designers in order to make
sure the estimate is not exceeding the client’s budget. He must make necessary
precaution in example providing inflation in his preparing estimate for future cost
projection. It is a duty for a quantity surveyor to make adequate check to ensure the
accurate estimate.
• The responsibility to prepare bills of quantity
In preparing the bills of quantity the quantity surveyor has to be aware of a
few liabilities that may face as appear in a certain court case. The quantity surveyor
must be aware that the contractor will rely on their quantity during the construction
stage. Thus, it is the great burden for a quantity surveyor to make sure the information
produce the bills of quantity during the pre contract stage will be reliable.
As the person who is expected to have an adequate skill to do a measurement
and bills of quantity, the quantity surveyor will be liable for producing inaccurate
quantity, discrepancy and not in accordance to Standard Method of Measurement.
• Wrongful advice on the selection of the contractor
As has been decided in the court case, the quantity surveyor must be very
careful in giving a recommendation to the client. The professional are expected to do 180 Ibid 181 Moneypenny v Hartland [1826] 2 C & P 378, Columbus Co v. Clowesc[1903] 1 KB 244
84
investigation and verify the background of the contractor to make sure he is
competent to carry out the works in future. Failure to make an adequate check will
cause the professional liable or responsible for the damages that the client might face
upon rely on the advice.
As a conclusion, the quantity surveyor owes a liability to the client under the
contractual agreement made between them to perform certain duties stipulated in the
agreement. Failure to perform, will leads to the breach of contract and the quantity
surveyor liable for the damages. In the recent case Blair And Patterson Ltd v.
McDermott 182 once again the court decided that the professional is liable to the
perform the duties in accordance to the standard retainer of the professional.
“It was an implied term of his contract with the defender that it would exercise
the knowledge, skill and care reasonably to be expected of an architect of
ordinary skill and competence. An ordinary competent architect would not
have undertaken design and contract administration work unless the terms of
the contract regarding inter alia the scope of work, allocation of
responsibilities and limitation of responsibilities were clearly agreed in
writing. Reference is made to standard 4.1 of the Architects Registration
Board "Code of Professional Conduct and Practice “
182 [2006] ABC.L.R. 05/01,
85
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October 2009.
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Revision No. 1/2002
(1 November, 2002)
TERMS OF REFERENCE
FOR
THE PROVISION OF PROFESSIONAL
QUANTITY SURVEYING SERVICES
FOR
................................................................................................................................................
................................................................................................................................................ ................................................................................................................................................ ................................................................................................................................................
1
TERMS OF REFERENCE
For
The provision of Professional Quantity Surveying services
For the
…………………………………………………………………………………project name)
The Agreement for the above Project entered into on the ……day of ……..20…… by the undersigned parties refers to these TERMS OF REFERENCE which shall be read and construed as part of the Agreement. ………………………………………. ……………………………………….. Signature of Consulting Q.S. Signature of Officer Name in full: ……………………….. Name in full: ...………………………. NRIC No.:…………………………….. In the capacity of : …………………. Designation: …………………………. Duly authorised to sign for and on for and on behalf of the Government Behalf of of Malaysia ……………………………………… Seal or chop of Consulting Q.S. Witness: ……………………………. Witness: ……………………………... Name in full: ……………………….. Name in full: ………………………… NRIC No.:…………………………….. Occupation: ………………………… Designation: ………………………….
2
Address: …………………………….. ……………………………...
1. DEFINITIONS
Unless the context otherwise requires, the following words and phrases in the Terms of Reference shall have the meaning given below:
“Basic Services” means the services as defined under paragraph 2 hereof and not as defined under paragraph 3 of the Schedule of Fees. “Director” means the Pengarah#, Cawangan Kontrak Dan Ukur Bahan and his successors in office.
2. SCOPE OF CONSULTING SERVICES
The scope of consultancy services to be carried out by the Consulting Q.S. shall comprise the following:. (a) Basic Services
Pre-Contract Stage*.
i. Preparation of Preliminary Estimates including preparation of Preliminary Detailed Abstract (PDA) and Cost Plans.
ii. Preparation of Bills of Quantities, other Tender Documents
necessary for calling tenders and Tender Table Document.
iii. Preparation of Tender Estimate.
iv. Preparation of As Tendered Detailed Abstract (ATDA)
v. Preparation of Contract Documents. Post-Contract Stage*
# Insert the Office, which will carry out the monitoring of Consulting Q.S’s works * Delete if not applicable
3
vi. Preparation of Tender Documents, Tender Estimates, Tender Reports and Contract Documents for works allowed under P.C. and Provisional Sums other than those under the charge of Mechanical and Electrical Consultants.
vii. Valuation of Works in progress for Interim Valuation/ Certificates,
including measurement of variation works and preparation of all related documents for Variation of Work other than those under the charge of Mechanical and Electrical Consultant.
2.0 SCOPE OF CONSULTING SERVICES (Cont’d)
Post-Contract Stage (cont’d) ∗.
viii. Preparation of Revised ATDA (if necessary) and Adjustments of
Contract Sum. ix. Preparation of Final Account and As Completed Detailed Abstract
(ACDA).
(b) Additional Services ∗.
i Preparation of Cost Analysis based on accepted Contract Sum. ii. Preparation of Tender Price Index based on accepted Contract
Sum. 3. REMUNERATIONS
(a) The computation of fees payable to the Consulting Q.S. shall be based on Scale of Fees for projects under Building Works - Category A / B / C* or Civil Engineering Works – Category 1 / 2* as specified in paragraph 5 of the Schedule.
(b) The percentage of fees payable to the Consulting Q.S. in respect of Basic
Services i - ix in paragraph 2(a) hereof shall be as per Appendix 1 attached to this Terms of Reference and not as in Section 8.1 – 8.6 of the Schedule subject to the following exception;
∗ Delete if not applicable
4
The Consulting Q.S. is not required to carry out tender evaluation and tender report under Stage 8.3 (i) of the Services and the fees payable will be deducted accordingly.
(c) The fees payable for the Additional Services i – ii in paragraph 2(b) hereof
shall be based on time cost as approved by the Director (d) Claims for the fees and reimbursable expenses as specified in Section 8 and
Section 10 of the Schedule respectively shall be submitted monthly and not later than three (3) months from the events. Any claims beyond the stipulated time will not be considered.
3. REMUNERATIONS (Cont’d)
(e) For the purpose of payment of the fees due to the Consulting Q.S. only, the services of the Consulting Q.S. shall be deemed to have been satisfactorily completed upon approval of the ACDA by the Director.
4. COMPLIANCE WITH GOVERNMENT PRACTICE AND PROCEDURE
In the provision of services, the Consulting Q.S. shall comply with Government’s procurement and financial procedures. The Consulting Q.S. shall also comply with JKR tender and contract administration practice and procedure as follows: (a) As the preliminary design of the Project is being developed, the
Consulting Q.S. shall give advice on cost implications of the design as and when required by the design team. Upon the finalisation of the preliminary design of the project, the Consulting Q.S. shall prepare PDA and any revision thereof as and when directed by the Director not later than seven (7) days from the receipt of the preliminary drawings.
(b) The Consulting Q.S. shall prepare Bills of Quantities and other tender
documents within one (1) month from the receipt of the final drawings to enable the tender to be called in accordance with the implementation schedule. The Bills of Quantities shall follow the SMM2 requirements and the format approved by the Director and shall be measured firm unless otherwise instructed in writing by the Director.
(c) The Consulting Q.S. shall prepare complete tender documents based on
the Standard Government Conditions of Contract, Form of Tender,
5
Specifications and other documents currently used in JKR, in compliance with the JKR Quality Assurance System.
(d) The Consulting Q.S. shall submit a printed copy of the draft Bills of
Quantities and other documents to the Director for approval. Final Bills of Quantities and other tender documents shall be based on the approved draft.
(e) The Consulting Q.S. shall submit two (2) copies of the Tender Table
Documents and sufficient copies of tender documents to be issued to the tenderers within seven (7) days before the date the tender notice is scheduled to be advertised and a copy of dimension sheets showing detailed calculation of the quantities of items in the Bills of Quantities and soft copy of the Bills not later than three (3) months after the award of the tender.
4.0 COMPLIANCE WITH GOVERNMENT PRACTICE AND PROCEDURE (Cont’d)
(f) The Consulting Q.S. shall prepare an estimate of the cost of the Project based on detailed pricing of the Bills of Quantities. The estimated cost of the project shall be attested by a registered Quantity Surveyor and shall be submitted together with the priced Bills of Quantities to the Director under a confidential cover not later than seven (7) days before the closing date of the tender.
(g) The ATDA and the Letter of Acceptance shall be submitted to the Director
not later than three (3) days after the receipt of the instruction. (h) The Consulting Q.S. shall submit the original Contract Document to the
Director within twenty-one (21) days after the date of issuance of the Letter of Acceptance (L.A) for the signatory by the Officer empowered to sign the Contract. The Consulting Q.S. shall prepare certified true copies of the Contract Documents and distribute the same to the relevant parties the soonest possible but in any case shall not exceed sixty (60) days from the date of issuance of L.A. The original Contract Document shall be delivered to the Director for the safe keeping.
(i) The Consulting Q.S. shall prepare and submit two (2) copies of Cost
Analysis and Tender Price Index based on accepted Contract Sum in an approved format not later than two (2) months from the date of issuance of L.A.
6
(j) The Consulting Q.S. shall submit to the S.O. or S.O.’s representative eight
(8) copies of the Interim Certificates in a format approved by the Director not later than three (3) working days after the date of valuation.
(k) In the administration of Variation Works, the Consulting Q.S. shall
observe the provisions under Treasury Instruction 202 and the JKR procedures. To enable the Instruction for Variation Work to be issued by the S.O, the Consulting Q.S. shall prepare the estimate for variation works within the time frame as specified below, after the date when the variation work was identified: i). 7 days if the variation work involved is of simple nature. ii). 14 days if the variation work involved is of complex nature.
The Consulting Q.S. shall prepare all necessary documentation in the approved format and submit to the S.O. or S.O.’s representative not later than fourteen (14) days after the issuance of the Instruction for Variation Works. Measurements and valuation of the variation works must be prepared the soonest possible, as work progress. Adjustment to the Contract Sum must be made in the approved format, not later than two (2) weeks from the date of receipt of the variation work drawings or from the date of completion of the variation works, whichever is earlier.
4.0 COMPLIANCE WITH GOVERNMENT PRACTICE AND PROCEDURE
(Cont’d)
(l) The Consulting Q.S. shall, if required by the S.O. or S.O.’s representative,
prepare and submit a report on the financial progress of the project and revise the ATDA within the time frame as specified below, from the date of receipt of the instruction and all necessary information from other related parties; i) 7 days if the variation work involved is of simple nature. ii) 14 days if the variation work involved is of complex nature.
(m) The final account of the Contract must be finalised not later than six (6)
months after the issuance of the Certificate of Practical Completion. The Consulting Q.S. shall submit the ACDA to the Director not later than one (1) month from the date of the approval of the final account.
(n) The Consulting Q.S. shall, as and when notified by the Government,
attend coordination and site meetings in connection with the services rendered.
7
Notwithstanding the approval by the Director to any documents prepared by the Consulting Q.S., the Consulting Q.S. shall not be relieved of his obligations under the Memorandum of Agreement.
5.0 LIST OF PERSONNEL, SCHEDULES OF WORK AND PROGRESS
REPORT
The Consulting Q.S. shall submit within two (2) weeks from the date of his formal appointment in writing by the Director, a list of his personnel complete with their curriculum vitae and a schedule of work commencing from the date of formal appointment showing the dates for completion of each of the services to be provided. The Consulting Q.S. shall submit each month, a report of the progress of services provided by him in a format acceptable by the Director.
6.0 CONSULTING Q.S. REPRESENTATIVE
The Consulting Q.S. representative shall be a registered Quantity Surveyor duly authorised to act on their behalf. No other person other than the authorised representative shall be allowed to act on the Consulting Q.S. behalf without prior consent from the Director.
7.0 AGREEMENT
The Consulting Q.S. shall prepare ten (10) sets of Memorandum of Agreement (and incorporating these Terms of Reference) for signing within two (2) weeks from the date of his formal appointment in writing by the Director.
8.0 LANGUAGE TO BE USED
All documents and reports to be prepared by the Consulting Q.S. and all correspondences shall be in Bahasa Malaysia unless otherwise permitted by the Director in writing.
8
APPENDIX 1 The percentage of fees payable to the Consulting Q.S. tabulated in Section 8 of the Schedule shall be replaced with the following:
TYPES OF CONTRACT SERVICES
%
Building and Civil Engineering Works
8.1 Preparation of Preliminary Estimates
and Cost Plans 8.2 Preparation of Bills of Quantities and
other Tender Documents (excluding preparation of Tender Documents under Clause 8.4), including pricing of the Bills of Quantities for an estimate.
8.3 i) Preparation Tender Reports ii) Preparation of Contract Documents. 8.4 Preparation of Tender Documents,
Tender Reports and Contract Documents for P.C and Provisional Items other than those under the charge of Mechanical and Electrical Consultants.
8.5 Valuation of works in progress for
Interim Valuation/Certificates 8.6 Preparation of Final Accounts
10
45
2.5
2.5
5
15
20
Total Services 97.5
* Notes: For projects where there are no P.C. and Provisional Sum items other than those
under the charge of Mechanical and Electrical Consultants, Stage 8.4 as described above is deemed to be executed under Stage 8.2 and Stage 8.3(ii). The percentage of fees for Stage 8.2 and Stage 8.3(ii) shall be revised to 48% and 4.5% respectively.