ICE contract

[drpeterwardle]

I think it is a bit more complex than this.

Being the contractor/employer has risk associated with it in terms of completion of the work and penalty clauses and/or the work not being upto the required standard. There are also issues of H&S etc.

I would suggest that "small jobs" are not mickey mouse jobs they are small jobs and are important to the client and the people doing them.

Peter Wardle

[the invisible man]

Paras 1 and 2: indeed, basically what I was driving at. (NB penalty clauses are not permissible; there are ascertained damages i.e. the loss suffered through say failure to complete must be real and demonstrable, not an arbitrary punsihment. Sorry to be pedantic but it has that effect!)

Para 3. This is a common expression in construction, which I use by habit, and did not mean to cause offence. Not to workers, clients or mice.

Aren't contracts fun?

We owe the dead nothing but the truth.

[1man1desk]

quote:When I first glanced through the contract it appeared to be suitable for situations when an archaeological contractor was employed directly by a developer, but potentially more problematic when the contractor was procured by, and through, a consultant on behalf of the developer. Any views on this ?

quote:The ICE Contract does not appear to be applicable in situations where the archaeological contractor is not directly employed by the developer - or is it ?

The ICE contract can be used in either case. The ideal situation is that the developer is the 'Employer', they separately employ someone else to act as the 'Consultant', and the field unit is the 'Contractor'. The Consultant is not a party to the contract. This is the standard ICE model and one that I have worked with for years very successfully.

However, bear in mind that the Employer is normally a company, while the Consultant has to be a named individual. A consultancy firm can act as the Employer, with one of their senior staff as the Consultant. The developer themselves could do the same thing. Neither position is ideal, but they both work under this contract.

If the consultancy firm acts as the Employer, then the actual developer is not a party to the contract. They will have a separate contractual arrangement with the consultancy firm - who will themselves be a Contractor under that contract. It is important for them to have appropriate insurance etc., which would be very different if they were acting in a solely consultancy role.

1man1desk

to let, fully furnished

[the invisible man]

Any idea what the reasoning behind that is, 1man? Clause 2.1 seems the most bizarre bit to me (consultant to be a named individual) and I can't see where it comes from or what the purpose is.

How does it square with PI insurance, for example, if the individual is individualy named (excuse grammar) but the consultancy carries the insurances? In other fields consultants are named firms (architects, QS etc)

There is an obvious conflict of interest if a consultant is part of the same organization as the contractor (whichever umbrella they are under).

I suppose there is nothing to stop you amending the standard form of contract and revising 2.1 providing it is set out in the tender documents, in order to name the Bloggs Partnership as consultant.

Strangely fascinating field, to me. Worrying, isn't it?

We owe the dead nothing but the truth.

[1man1desk]

The Consultant is the same as the Engineer in other ICE contracts, and is always a named individual. However, they are doing that role as a representative of their company; PI etc. would all be borne by the company.

The Consultant/Engineer can never be part of the same organisation as the Contractor - but they can be part of the same organisation as the Employer. It is preferable, however, that they are part of a separate organisation employed (by the Employer) under a separate professional services agreement.

I have acted as the Consultant on several of these projects, and before that as the Engineer on projects that used other ICE contracts for archaeological work. I have found the document to be eminently workable - and bear in mind that it is based on very well-establihsed models that have been applied (and refined) in various parts of the construction industry for decades.


1man1desk

to let, fully furnished

[the invisible man]

Ah, apologies, I misunderstood your post a bit. I quite understand about (effectively) in-house consultants - no not a good idea - but I was taking the case in your para 3 where a consultancy acts as Employer and presuned that you meant that a named individ in the same firm would act as Consultant. So who would, in this case then?

I do not have non-archaeology ICE contracts to hand, but confess that in my past life I never read one properly - didn't need to, they are used in civil/structural/services engineering rather than construction, which uses the JCT forms. In basic structure these are broadly similar, in terms of roles and responsibilties, valuations, payments and so on.

As I say it's this notion of named individuals that is one big difference. I suppose the consultancy principal will be named and the bod running the contact will be the named Representative? I confess that I would want written confirmation that I was covered by all insurances if I was personally named in any form of contract. First rule - know your client, second rule - know all parties!



We owe the dead nothing but the truth.

[1man1desk]

I think the confusion here arises from the fact that a project can have a long chain of contractual relationships. A given company (say, an archaeological consultancy) could be the Employer on one contract (say, with an archaeological unit) and a Contractor in another (say, with the developer who has commissioned them to get the archaeology dealt with). Preferably, they would avoid this situation by persuading the developer to employ the archaeological unit directly, while the consultancy firm provides a Consultant to manage the archaeological contract (but not to be a party to it).

However, if the consultancy firm does actually employ the archaeological Contractor, then they will be the Employer, and they will usually have a Consultant who is one of their own staff.

It is important to note here that the Consultant is still not a party to the contract; the parties will be his company (the Employer) and the archaeological unit (the Contractor).

In terms of insurance, my (non-expert) understanding is that there are few circumstances in which a Consultant would be individually liable.

1man1desk

to let, fully furnished

[beamo]

1m1d, invisible and Dr Peter

Many thanks for all of this discussion - I feel some level of comprehension beginning to dawn here.

Isn't BAJR a wonderful thing ?



Beamo