On March 2, 2018 the Village of Belcarra issued a Request for Proposals, including a draft contract, for Consultant Planning Services over a five year period. Closing date for this RFP was March 23.
A number of issues in the draft contract were brought to the attention of ACEC-BC. The most serious of these issues involved standard of care, warranty for services, termination of the agreement, indemnity and no limitation of liability. Some of these would generally be considered "no-go" conditions, and many would typically require that a risk premium be included in the consultant's fee.
The RFP was forwarded to the ACEC-BC Onerous Clause Review Task Force, and quick action by the task force resulted in a letter to the Village of Belcarra highlighting how fair and balanced language can be beneficial to both client and consultant, generally resulting in a better project outcome. Specific clauses were identified in the letter and reasons why they are considered unacceptable by the consulting engineering industry. The resulting dialogue between ACEC-BC and the Village of Belcarra culminated with the Village agreeing to change most of the problematic clauses we identified.
Though still not ideal, the draft contract is much improved. ACEC-BC issued an Onerous Clause Advisory Update to inform Voting Members of the positive change to this contract - the Advisory Update also suggested that member firms wishing to pursue this opportunity still carefully review the agreement with their legal and insurance advisors. This is sound advice for any contractual agreement you are entering into.
This positive outcome highlights the value of ACEC-BC's Onerous Clause Alert mechanism, and how we can work together to improve the business environment for our industry. ACEC-BC members are reminded - when you encounter problematic contract language in an RFP (or elsewhere), do not hesitate to bring this to the attention of ACEC-BC. As the voice of the industry we can speak on your behalf, and we will take care to ensure the source of a complaint remains anonymous.