ᐅ Architect, contract under HOAI 2013 – refusal to perform services
Created on: 15 May 2019 10:00
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stephan.lS
stephan.l15 May 2019 10:00Hello! I am new to this forum and could use some help. I have a contract with an architect based on HOAI 2013 covering phases 1 to 8. His fee is VERY high at 18.5% of the total costs. He is also the construction manager. The architect was already 72 years old when hired and recommended himself based on a successful project for a neighbor.
The architect has already invoiced 75% of the total fee as progress payments, but so far not even the basement of the house (basement, ground floor, sleeping floor) is finished (the contractor’s share of costs so far is 24% of the total construction costs). Other trades have barely been (documentedly) worked on, the schedule is missing, and the detailed execution plans for the upper floors are incomplete. On-site, he shows up at most once a month for one hour, which has led to misunderstandings in the construction process due to lack of supervision.
Now the architect has issued another invoice, which would bring the total paid to 86% of the entire fee. I explained the situation to him and referred to a progress payment appropriate to the construction progress, asking him to please submit the invoice at a later date.
In response, the architect started quarrelling intensely with the contractor and stated that he cannot continue working due to the contractor’s insufficient quality and that he would not continue until his fully justified claim is paid. Construction is at a standstill because the plans for the ground floor are missing.
My question is: can the architect demand arbitrarily high progress payments under HOAI without corresponding progress and service delivery?
Thank you very much if anyone has experience with this.
The architect has already invoiced 75% of the total fee as progress payments, but so far not even the basement of the house (basement, ground floor, sleeping floor) is finished (the contractor’s share of costs so far is 24% of the total construction costs). Other trades have barely been (documentedly) worked on, the schedule is missing, and the detailed execution plans for the upper floors are incomplete. On-site, he shows up at most once a month for one hour, which has led to misunderstandings in the construction process due to lack of supervision.
Now the architect has issued another invoice, which would bring the total paid to 86% of the entire fee. I explained the situation to him and referred to a progress payment appropriate to the construction progress, asking him to please submit the invoice at a later date.
In response, the architect started quarrelling intensely with the contractor and stated that he cannot continue working due to the contractor’s insufficient quality and that he would not continue until his fully justified claim is paid. Construction is at a standstill because the plans for the ground floor are missing.
My question is: can the architect demand arbitrarily high progress payments under HOAI without corresponding progress and service delivery?
Thank you very much if anyone has experience with this.
Completely overpaid. What did he get the money for if the plans aren’t even finished yet?
Find a construction law lawyer. You might be able to “persuade” him to continue or make claims for reimbursement.
This already sounds complicated. Don’t throw good money after bad.
This is probably not what you wanted to hear.
I think this will result in changing architects and a legal dispute.
Find a construction law lawyer. You might be able to “persuade” him to continue or make claims for reimbursement.
This already sounds complicated. Don’t throw good money after bad.
This is probably not what you wanted to hear.
I think this will result in changing architects and a legal dispute.
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sichtbeton8215 May 2019 10:27The service phases for a single-family house are as follows:
The invoicing is therefore NOT based on the actual construction progress but on the degree of completion of each service phase (SP). These phases may overlap but do not have to.
Service phases 1, 2, 3, and 4 are likely fully completed. Therefore, the architect can invoice 27% of their fee.
For service phases 5 to 8, you will need to estimate how much has been delivered.
How was it for your neighbor? Were the "advance payments" also that high?
| Service Phase 1 (Basic Evaluation) | 2 % | |
| Service Phase 2 (Preliminary Design) | 7 % | |
| Service Phase 3 (Detailed Design) | 15 % | |
| Service Phase 4 (Building Permit / Planning Permission) | 3 % for building 2 % for interior spaces | |
| Service Phase 5 (Construction Documentation) | 25 % for building 30 % for interior spaces | |
| Service Phase 6 (Preparation of Contract Award) | 10 % for building 7 % for interior spaces | |
| Service Phase 7 (Assistance with Contract Award) | 4 % for building 3 % for interior spaces | |
| Service Phase 8 (Construction Supervision) | 32 % | |
The invoicing is therefore NOT based on the actual construction progress but on the degree of completion of each service phase (SP). These phases may overlap but do not have to.
Service phases 1, 2, 3, and 4 are likely fully completed. Therefore, the architect can invoice 27% of their fee.
For service phases 5 to 8, you will need to estimate how much has been delivered.
How was it for your neighbor? Were the "advance payments" also that high?
sichtbeton82 schrieb:
The service phases for a single-family house are as follows:
Service Phase 1
(Basic evaluation)
2 %
Service Phase 2
(Preliminary design)
7 %
Service Phase 3
(Design development)
15 %
Service Phase 4
(Permit planning)
3 % for the building
2 % for interior spaces
Service Phase 5
(Detailed design)
25 % for the building
30 % for interior spaces
Service Phase 6
(Preparation of contract award)
10 % for the building
7 % for interior spaces
Service Phase 7
(Assistance with contract award)
4 % for the building
3 % for interior spaces
Service Phase 8
(Site supervision)
32 %
So, the invoice does not reflect the actual construction progress but the completion level of the individual service phases (SP). These phases can overlap but do not have to.
Service Phases 1, 2, 3, and 4 are presumably fully completed. Therefore, he can bill 27% of his fee.
For Service Phases 5 to 8, you would have to estimate how much has been completed.
How did it go with your neighbor? Were the "advance payments" also that high? I agree, however, just showing up once a month is not proper site supervision. That should be clear. But what exactly does “lack of oversight” mean? Where exactly are you onsite? The structural builder can only do “poor work” if they don’t know exactly how and what to do – skilled workers are capable of carrying out the work!
There is always this “I pay the architect so I don’t have to do anything” mindset. What good does it do if you just sit back and blame the architect? It’s your construction project, not the architect’s. In the end, you are the one facing the problems.
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stephan.l15 May 2019 11:36Thank you very much! I have already consulted a specialist lawyer who will review the invoice. Termination for cause is a very serious matter that I would only do reluctantly.
I have already compared the project phases in detail, according to Annex 10 of the HOAI. I come to just over 27%, but definitely not 75% or even 86%. My neighbor advised me not to continue employing him after the shell construction phase. But it still went better back then. That was 15 years ago...
Zaba12, how do you come to the conclusion "I pay the architect so I don’t have to do anything"? I have to keep detailed minutes at every meeting with the architect because otherwise, it is never clear what was discussed and how decisions were made. He does not do this. But as a layperson, I cannot tell on the construction site how long the reinforcement steel has to be. If it’s too short, I am certainly not responsible for that. At most, I can provide photos.
It also strikes me as very odd that although the HOAI 2013 contract template states that I engage and pay the structural engineer, the architect “took over” this task (without asking!) and quietly contracted his buddy. Then the architect simply included the fee for the structural engineer in his invoice. As a result, I am now also dependent on the architect and engineer duo. I noticed this too late.
I have already compared the project phases in detail, according to Annex 10 of the HOAI. I come to just over 27%, but definitely not 75% or even 86%. My neighbor advised me not to continue employing him after the shell construction phase. But it still went better back then. That was 15 years ago...
Zaba12, how do you come to the conclusion "I pay the architect so I don’t have to do anything"? I have to keep detailed minutes at every meeting with the architect because otherwise, it is never clear what was discussed and how decisions were made. He does not do this. But as a layperson, I cannot tell on the construction site how long the reinforcement steel has to be. If it’s too short, I am certainly not responsible for that. At most, I can provide photos.
It also strikes me as very odd that although the HOAI 2013 contract template states that I engage and pay the structural engineer, the architect “took over” this task (without asking!) and quietly contracted his buddy. Then the architect simply included the fee for the structural engineer in his invoice. As a result, I am now also dependent on the architect and engineer duo. I noticed this too late.
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