Building Professionals Board Contract for Certification Work – Some Issues
Councils and accredited certifiers will be aware of recent changes to the Building Professionals Act 2005 (BP Act) requiring an accredited certifier, or their employer, to enter into a written contract with a client before carrying out certification work.
Under the changes, the contracts must contain certain information that is set out in cl.19A of the Building Professionals Regulation 2007 (BP Reg).
The Building Professionals Board (BPB) has issued template contracts (BP Contract) covering the minimum requirements prescribed by the BP Reg.
In cases where the contract is with the employer of an accredited certifier, such as would be the case where a council undertakes certification work through accredited certifiers employed by it, a requirement of cl.19A(2) of the BP Reg is that the contract must include the name and accreditation number (if applicable) of ‘any employee who it is proposed, at the date of the contract, will carry out certification work under the contract’, and ‘any individuals who it is proposed, at the date of the contract, will undertake any inspections‘.
Parts D and F of the BP Contract on their face restrict clause 19A(2) in so far as those Parts include sections requiring the name of a single certifier or person to be included in relation to certification work and inspections, respectively.
The text in the contract relating to Part D reads as follows:
‘These are the details of the employee that Council proposes, at the date of the Agreement, to have carry out the certification work. If the Council later decides to have another employee carry out the certification work, the Council will within two days notify the Client in writing of the name and accreditation number of that other employee.’ [My Emphasis]
The text in the contract relating to Part F states:
‘These are the details of the person that Council proposes, at the date of the agreement, to perform the inspections. In the event that these proposed arrangements change, Council will inform the Client in writing who will be carrying out the inspections as soon as possible after the arrangements are made.’ [My Emphasis]
Some councils have pointed to the difficulty of working with this clause in the BP Contract, given that councils generally employ a ‘pool’ of certifiers, and it may not be possible for all certification work or inspections to be carried out by the same individual.
The wording of clause 19A of the BP Reg would allow councils to amend Parts D and F of the BP Contract to include a list of council employees and their accreditations, and to provide that certification work or inspections may be carried out by any of those employees, subject to their accreditation. Parts D and F could still include a provision to the effect that should the council later decide to have another employee carry out the work, advanced written notice can be provided to the client. This would provide the council with sufficient flexibility to carry out its functions and meet the requirements of the BP Reg.
Other issues raised in connection with the BP Contract relate to the absence of any clause dealing with dispute resolution, the absence of any obligation on builders to request inspections, or to provide certificates or information from other professionals.
There is no reason the BP Contract cannot be amended to include a dispute resolution clause, or to require the client to notify the certifier of certain events, or provide certain information. However, there are limits to what can be included; the contract could only impose binding obligations on the parties to the contract, not on other persons or bodies.
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