by BRegs Blog Admin
The BRegs Blog recently received this query from a reader:
“I am currently in dispute with a client over non-payment of fees. I am the Assigned Certifier on the project. I have read the Code of Practice on this regarding reassignment but would like to know if anyone has had experience of this and how it played out.”
First and foremost you need to contact your professional organisation with your specific queries- the ACEI and EI have technical sections as do the RIAI and SCSI. However here are some thoughts on this general topic from someone on the BRegs Blog technical panel:
- There is no provision for you to resign in the SI.9 regulations. An owner (client) is the only person who can replace the Assigned Certifier on any project. You cannot do this yourself as there is no legal basis to withdraw once you agree to the Assignment in the Commencement Notice, undertaking to provide a Completion Certificate. Put it in writing to the owner and to the BCMS.
- There is no provision for fee resolution in advance of resignation unless you agreed this in your agreement with the owner at the start of the project. If there is no termination clause your client may look to force you to complete your undertaking to sign a Completion Certificate.
- There is no dispute procedure or arbitration process in the Building Control system, so any dispute resolution will have to be under your contract with your client, assuming you have allowed for this (see item 2 above)
- There is no system for a new Assigned Certifier to indemnify you or to resolve who is responsible for what in the Building Control Management System (BCMS). If there is a subsequent claim you and your Professional Indemnity will likely be drawn in, regardless of when the problem occurred.
- There are no protections for copyright of your work when it is passed on through the BCMS, you need to consider this with your client.
- If you continue as surveyor/engineer/architect and contract administrator on the job you need to set up the appointment of the new Assigned Certifier and your relationship with them very carefully e.g. what happens if they start to sign off work/materials that are not in accordance with the contract or that you will not certify payment for? What if they think that an Ancillary Certifier is not competent when you have a sub-contract in place?
- You will need to re-write your client service agreement if you are continuing in any role on the project.
- You will need to record everything on site before you handover (opening up may be advisable) to protect yourself from claims later. If you have already signed a Design Certificate you may need to make sure that design changes do not happen later that go unrecorded.
- If you are named as Assigned Certifier in contract documents (and sub contract documents) and collateral warranties, you need to make sure that these are changed.
- It is advisable to get specialist legal advice on this situation.
- You should inform your Professional Indemnity Insurers about this to be sure you are covered in future claims.
NOTE: This series of posts is not meant to undermine or be in opposition to any professional advice from registered representative bodies: rather it is to offer additional technical aids to those that find themselves in the position of having to deal with SI.9 in its current form. As with all information posted on the Bregs Blog we urge all practitioners to check with their respective professional bodies before assuming any roles or duties under Building Control (Amendment) Regulation (SI.9 of 2014). We hope to post a number of these practical posts and list in one area, so home owners, SME’s and professionals can drop in and click on a particular topic to get summary information that may be useful to them while working under the new regulations.