RIBA publishes 2024 Building Regulations Principal Designer Professional Services Contract: a new resource under the Building Safety Act

RIBA has recently published the Building Regulations Principal Designer (“BRPD”) Professional Services Contract (“PSC”) 2024, which sets out the services to be provided in accordance with the new Building Safety Act (“BSA”) regime. It is now available to purchase in paper form. With limited government and industry guidance on the new regime, RIBA has led the way by producing informative documents for designers (such as the RIBA PD’s Guide, which we commented on here).

The new RIBA BRPD PSC follows a similar format to the RIBA CDM Regulations Principal Designer (“CDMPD”) PSC, but it should not be used for CDMPD appointments. Instead, the services in the RIBA BPRD PSC align with the BRPD’s regulatory duties under the BSA. The RIBA BRPD PSC is also unsuitable for use on a domestic project or by a consumer Client.

The requirement for a BRPD to be appointed has applied to all projects on which Building Regulations approval is required (see previous articles here and here) since October 2023, and the appointment must be made by the Client on the majority of projects. There are some exceptions if there is only one contractor (in which case that designer becomes the BRPD if only one designer, or if there is more than one designer, the designer must agree who is BRPD). However, the definition of contractor is very wide (i.e. it includes subcontractors) so most of the time the BRPD will need to be appointed by the Client.

We have been seeing bespoke contracts which seek to incorporate the new BSA regime through very onerous terms, and go further than is required under the statutory position. Given the different role which a PD will be performing (as well as their role to provide design services on a particular project), having a separate contract to govern the PD services, if possible, will provide the most contractual certainty and clarity. The fact that RIBA has produced a standalone contract in relation to the PD services is therefore an invaluable development.

Changes in the RIBA BRPD PSC to address the new BSA regime

The RIBA BRPD PSC includes various additional provisions to address the new BSA regime, which separates it from the standard RIBA PSC. These additional provisions include the following:

• There is an additional note at the beginning of the contract which states that there are duties under the Building Regulations that the BRPD must satisfy it can comply with before entering the Contract, and should at any time the BRPD cease to satisfy the requirements of those Building Regulations, it must notify the Client.
• There is an additional duty for the Client to carry out its duties under Part 2A of the Building Regulations and the Higher-Risk Building Regulations to enable the BRPD to perform their Services (clause 2.1.4).
• There is an additional duty for the Client to provide the BRPD with continuous access to Golden Thread Information which is held electronically on a facility provided by the Client to enable the BRPD to perform their Services. At no cost to the BRPD, the Client must also provide the BRPD with an archive of Golden Thread Information at the conclusion of the Services (clause 2.1.8).
• The Client must acknowledge that the Project Programme and Construction Cost may need to be reviewed for delays caused by the Client of its facility for the Golden Thread Information, and as a result the BRPD does not warrant compliance with the Project Programme or Construction Cost (clause 2.3).
• The BRPD is not required to provide any statement of compliance beyond those expressly required by law (clause 2.3.3).
• There is an additional obligation for the BRPD at the outset to assess whether the BRPD is competent as set out in regulations 11F and 11G of the Building Regulations. Where the BRPD ceases to be competent, or there is a material change to the Project Brief instructed by the Client that may affect the BRPD’s original assessment of their competence, the BRPD shall advise the Client in accordance with regulation 11I of the Building Regulations (clause 3.2.6).
• The services to be undertaken by the BRPD are listed out in the Schedule of Services (these have been taken directly from the BSA), and there are also specific services listed for a BRPD on a Higher-Risk Building project.

Additional areas we recommend are considered or covered

While the RIBA BRPD PSC is a very helpful starting point within the industry, given the evolving legislation and regulation connected with the BSA, it does not cover all potential risks of the BRPD role which we are typically advising BRPDs to include. We recommend that several additional provisions are added into the contract to further protect the BRPD and manage some of the main risks associated with the role. For example, the RIBA BRPD PSC does not address the following:

• the Client’s statutory obligation to confirm that they are aware of their duties under the BSA and have the required competency to comply;
• any change in law associated with the BSA;
• what will happen if the project becomes a Higher-Risk Building part-way through the project; delays being caused by other duty holders; or any delays in the gateway system or in any approvals from the Building Safety Regulator;
• the extent of the checking role which the BRPD will need to perform;
• responsibility (or lack thereof) for obtaining any approvals or consents that are required under the BSA;
• the extent to which the BRPD is required to provide any statement of competence or other certificates; and
• the Client’s obligation to ensure that all other designers appointed shall comply with their respective duties. This will be fundamental to the BRPD performing its role.

The RIBA BRPD PSC also includes a schedule of services. As with the BRPD duties generally, these are reasonably general without specific detail in relation to how the role will be performed.

Other RIBA templates and information

Additionally, RIBA launched a range of PD template documents for use by its members in May 2024[1], including Client care letters; a Lead Designer agreement; a Notice of designated individual (i.e. the individual designated to fulfil PD duties for an organisation); and other completion and competence statements. These documents complement the RIBA PD Guide, published in March 2024, and may be modified for use as appropriate.

There is also a tracker which aims to support decision-making and ensure compliance with the relevant requirements of the Building Regulations. According to RIBA, such a tracker may be used to evidence compliance to a building control body or cover a project’s change control processes.

Summary

The RIBA BRPD PSC is a useful starting point for PDs who have been presented with very onerous terms and are looking for an alternative contract to suggest to a Client. It can also be referenced in a fee proposal for performing the BRPD role. This standalone contract will offer the PD protection and clarity in terms of the services they are providing. However, before using this form, additional amendments and clarifications should be considered as above.

Please get in touch if you would like any assistance with the RIBA BRPD PSC as we have suggested above, or with BRPD appointments generally.

[1] RIBA, “Building Safety Act: how RIBA’s new work templates for the Principal Designer role can help architects” (architecture.com), 16 May 2024