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Dealing with Ethical Issues Related to Quantity Surveying Profession
Introduction
Professional ethics are all about moral values, either express or implied, beyond legal boundaries. Ethical issues arise in the application of one’s specialist knowledge in the delivery of a professional service. A breach of ethics may not necessarily be a breach of law but undermines the image, identity or repute of a professional who owes a moral duty to those held by the population in general and in society. This is based on the premise that professionals are capable of acting on informed decisions in situations that the general public cannot, because of the relevant education, training and expertise. For example, a layman walking on the road could not be held responsible for failing to act to save a car crash victim but a medical doctor would be capable and it may be wrong if failed to help in this situation.
Professional conduct
A professional conduct means the adherence to a standard of behaviour befitting a professional at all times while engaged in a professional capacity. A professional misconduct therefore means a behaviour that falls short of professional conduct. Since the ‘four corners’ are vague in almost every conduct, the members belonging to a professional institute have been kept under governance of the Articles of Association and By‐laws of the Institute that represents the standard of professional conduct to which members of the Institute must adhere. For example, a client may approach a quantity surveyor to certify a cost plan of a project which is not commercially realistic. Whilst one quantity surveyor may refuse to certify the same on factual grounds, the client may find a less reliable substitute to certify the project for a commission, which is unethical. Starting with the correct use of postnomials, a quantity surveyor should not falsify or misrepresent qualifications and experience. Any member whose conduct is contrary to this code may usually be liable to reprimand, suspension or expulsion from allied professional membership.
Amongst the general responsibilities, the members shall maintain a high professional standard, be of good fame, integrity and character. They are expected to conduct their profession in a manner neither derogatory to their professional character nor likely to lessen the confidence of the public, in the Institute or the profession. For instance, a quantity surveyor must refrain from reviewing, for a particular client, the work of another quantity surveyor except with such quantity surveyor, having knowledge of the review and being afforded the opportunity of submitting comments on the findings of the review. In the areas of documentation, accuracy, timeliness and fees, it is incumbent upon the member to provide their client with the guidance necessary to make an accurate and informed decision. Accepting a direct or indirect offer, payment, solicitation, bribe or inducement are altogether unethical practices. Hospitality received in the course of a business meeting, and which can be reciprocated, may be acceptable, but anything where professional opinion or judgement or fair dealing might be adversely affected is unlikely ethical.
Harassment on the grounds of race, religion, colour, nationality, disability, ethnic origin, sex or marital status is not only inconsistent with the status of a professional quantity surveyor, but is also illegal. Recruiting a surveyor from a competitor to undermine their effectiveness is unethical. On the same token, insider trading could place a person at an advantage over others, particularly with information gained through previous work place, other than in the necessary course of business. Therefore, quantity surveyors are expected to avoid unauthorised disclosure of confidential and sometimes price-sensitive information, such as bid prices. Leakage of trade secrets and the careless handling of intellectual property may result in prosecution. This is in line with the principle of fair competition that mandates professionals to refrain from all actions which are anti-competitive.
One sided language
Often in contract drafting, a quantity surveyor may use standard forms of contract as a ‘nucleus’. In order to cater locally specific project requirements, the contractors recognize the particular applications and know how to act upon those amendments in the contract. All in all, everyone ‘knows the deal’ if presented with a standard form with the advantage of known interpretation over the years by courts. In bespoken contracts, there are vast chunks of texts copied straightaway from standard forms. Even though on most occasions what the standard form gives with one hand the amendments take back with the other.
Some construction clients (employers) either seriously amend or loosely delete some of the standard provisions. For instance, the FIDIC forms being extensively adopted in international construction projects are amended to suit the local conditions by inserting new clauses or deleting some of the key sensitive clauses, such as claims, time extension, price fluctuation, local authority delays etc. This not only tilts the even apportionment of risks but adulterates the real taste and rhythm of FIDIC it promoted. They are no longer FIDIC in that sense, and as a result of this customization via cut and paste exercise, it is mostly employers who ultimately find in trouble. This trend is apparently because some employers falsely assume that by deleting or amending, the employer is getting immunity from potential claims. Unfortunately, this logic is flawed and deletion or improper amendment of such clauses is disadvantageous and, in some cases, even dangerous for employers and unhealthy for projects in long run. The thumb rule is that if the Contractor does not have an entitlement within the Contract, he may well raise a claim outside the confines of the same, if there is an overriding statutory provision. Deletion therefore does not necessarily mean that no one is entitled or is losing any right to claim, but it would obviously mean that the contract is silent in the issue, where the disgruntling party would definitely seek a resolution in the next available route, either by referring to similar case law or standard norms of the building trade.
Plagiarism is often seen in that taking credit for the original work of someone else can pose severe negative consequences. Although giving credit to someone else is far more persuasive, plagiarism is passing off another’s work as one’s own. For instance, a technical or research piece of work that does not provide a reference for their contribution, it would be plagiarizing. If writers wish to reuse published content, they must properly cite what now belongs to another entity. The first basic reason that plagiarism is unethical is because it is a form of intellectual theft.
Selective tendering
Amongst the quantity surveyor’s inputs in selective tendering is to first articulate the criteria of selection of potential tenderers, and it must not be cherry picking. The term is based on the perceived process of harvesting fruit, such as cherries. The picker would be expected to only select the ripest. An observer who only sees the selected fruit may thus wrongly conclude that most, or even all, of the fruit is in such good condition. For instance, when a person is assigned to advocate a particular position, then cherry picking might be seen as entirely appropriate. Although lawyers are free to present any evidence supporting the innocence of their client, a quantity surveyor must not pick a group of prospective tenderers that is already known to result in less competition amongst a wildly varying technical capacity. A quantity surveyor involved in short listing construction firms for selective tenders must not purposely ‘cherry pick’ with a pre conceived idea of taking undue advantage out of the known competition, based on previous tender results. Being supposedly in a neutral position, cherry picking is generally regarded as unethical for quantity surveyors.
Disclosure of bid prices
On public construction projects, bid prices are generally a matter of public record. On private projects, the project owner has no legal obligation to disclose bid prices to the bidders. Is this ethical after all with costly preparatory works? For instance, of the four bids received, the lowest bid was approximately 2 million and the second low bid was 4.5 million. The private project owner, suspecting a mistake, declined to disclose the bid prices, but said the bid was lower than the owner’s estimate. The bidder confirmed the accuracy of its bid and signed the contract. The contractor was unable to complete the works at its bid price because of a critical mistake in bid pricing. The contractor sued the private project owner for fraudulent exploitation of a known mistake in a bid. The owner contended that he had no duty to disclose the bid price instead he availed an opportunity to review and confirm its bid price. Couldn’t the project owner have avoided this allegation simply by providing the bid spread to the low bidder? Isn’t it a case of unjust enrichment? Ethically, client’s quantity surveyor should have pointed it out or rejected the bid on the basis of unrealistic figures that are not sustainable in ling run. On the same token, bids that are often severely undercut by bidders assuming they can make up the difference in change orders once the need arises are strategic manipulations, by definition. Hence, the project owner and the bidder both deserve to suffer, because neither was open and honest during the post tender stage.
Errors and omissions
Amongst the primary tasks of a quantity surveyor, preliminary estimating involves intuition, guess work and thumb rules. In case an estimate prepared by a quantity surveyor is found to be considerably lower than the bids received, then a question may arise as to how and where the pre estimate has gone wrong. Unless there is a strong reason to support the legitimacy of the estimate, the quantity surveyor must admit the mistake and update the estimate compatible with the market trends so that the bids can be truly comparable. In doing so, he may well quote his own limitations, technically and economically, so that the likely financial commitment by the employer can also be set precisely.
However, an estimate which proves to be incorrect in itself will not provide the employer with a right of redress. The employer must demonstrate that the quantity surveyor warranted the accuracy of the estimate and the estimate was unrealistic simply because of incompetence on the part of the quantity surveyor and as a result, he suffered loss. The premise behind this argument is that quantity surveying is not an exact science and there is always a tolerance in the outcome for instance a preliminary project estimate may fall within an acceptable accuracy limit, say 10%. This requires lot of fortitude in exercising skilled judgment in order to address random factors which are incapable of precise measurement. The indeterminate nature of these factors makes it impossible to gauge them with complete accuracy in every instance. Because of the inescapable possibility of error which inheres in these services, the law has traditionally required, not perfect results, but rather a skill and judgment which can be gauged against ‘similarly situated’ professionals. As such, an occasional slip or error may be insufficient to sustain an allegation of professional negligence. However, professional indemnity insurance typically covers errors and omissions.
Incorrect valuation
A mistake in billing might mean a knock-on effect on the cash flow. Often, the quantity surveyor has a ‘fair play’ under the disguise of ‘correction and withholding clause’. Interim valuations are estimates under the contract for the purpose of practical and expeditious evaluation of payments to be made to the contractor. Amounts included in interim valuations have no bearing on the ultimate settlement of final accounts. Each interim valuation is a subject of the next valuation. Therefore, correction and withholding clause confers the absolute power to the quantity surveyor in capacity of the engineer or engineer’s representative as the case may be to correct any error in a previous certificate (to devalue, increase or to omit a work done already certified) and to withhold any interim certificate if any part of the work was not being carried out satisfactorily in accordance with the contract. The quantity surveyor in this regard may perhaps detect an error in previous valuation and revise the payment certificate. Accordingly, the intention is to avoid continuity of any incorrect payment arising out of under/over measurement and pricing. But this clause does not offer an ‘undated open cheque’ for quantity surveyors to act in ignorance.
Incorrect certification
A certifier cannot bind his employer under the contract unless an authority is vested in him. In FIDIC, the engineer’s power to certify is non-binding: he is usually only there to validate contractual claims for time and money and issue variation orders. So where a contractor is entitled to a time extension for an excusable delay and is relying on proving a breach of contract to recover loss and expense, he does expect a certifier to act fairly and reasonably and within the timescales in the contract for awarding a time extension. If the certifier actually fails to respond to a time extension request within the prescribed timescale, it will probably not amount to a breach of contract on the part of his employer. In Pacific Associates v Baxter (1990) it was held that a certifier owes no duty to the contractor when certifying the works. The contractor is therefore left to show that there is an implied term in the contract that requires the employer to ensure the certifier performs his obligations properly. However, as long as employers continue to fetter the engineer’s discretion by insisting on a variety of scenarios in which he cannot act without express approval, the engineer will continue to be viewed in certain quarters as nothing more than an engineer’s representative. For instance, a junior quantity surveyor incorrectly over certifies an interim valuation, the first thing to do is to check the facts and make sure an over certification has actually taken place. It is imperative to recheck the payment process, withdraw it and re-certify. If the payments have been made, then it is a matter of revisit at the next interim statement. However it is ethical to explain the client of the situation while ensuring that sufficient preventative measures are put in place so as to avoid it happen again.
Fixing rates
Because the valuation of varied work can be fertile ground for argument, if a contractor disagrees with the new rates or prices, a quantity surveyor has to form opinion as to suitability and applicability of a new rate, based on the nature and amount of the subject omission or addition against the nature and amount of whole of the works. Broadly speaking, the varied work shall be priced in accordance with the rates and prices in the contract, but if those are not applicable, the engineer has the power to agree rates and prices with the contractor. If no agreement is reached, the quantity surveyor (in the capacity of the contractual engineer) shall fix what he considers suitable. Bill rates will apply unaltered if the work is similar in character and executed under similar conditions. If either the work is dissimilar in character or executed in dissimilar conditions, then the engineer fixes a ‘fair’ rate, either by breaking down the quoted rates into the elements of plant, materials, labour and overheads and adjusting each element that is affected by the variation. Calling a minimum of 3 competitive quotations may be appropriate only when the technical and economic reasons so warrant.
However, rate adjustment cannot be subjective. If the contractor quoted an unrealistically high rate in the priced bill of quantities, he is still entitled to have the same rate used for valuation of variation. When the employer accepted the tender with the unrealistically high rate, it can be said that the employer also accepted the risk of that being used in valuing additional quantities. The application of the contract rates can not be avoided simply because one party is dissatisfied with them. The contract rates are immutable and not subject to correction. There shall be no rectification of any error, omission or wrong estimate in the descriptions, rates and prices inserted by the contractor. The effect of this principle is that a mistake in a rate is bound by the parties equally. The only situation where a contract rate may be departed from which it is not executed under similar conditions or when there is a substantial increase or decrease in quantities which rendered the existing rate unsuitable. However, to use employer’s upper hand in deciding rates is totally unethical, for instance comparing rates of other on-going similar contracts and unilaterally determining rates without any room for negotiation amounts to a situation called economic duress. This is against the principle of due consultation.
Unfair determination
A quantity surveyor is under a contractual duty to exercise a ‘fair determination’. Be it in assessment of additional cost and/or time, valuation of varied work, clarifying ambiguities, approval of works and confirming satisfaction, all of which requires a professional approach and expertise. However, the term ‘fair determination’ is always debatable, probably because the quantity surveyor’s role at instances may move from being an employer’s agent to being an independent consultant. An argument is that the quantity surveyor must not be too remote and both parties are entitled to the expertise of the quantity surveyor on all matters, basically commercial and contractual. However, the true employer’s agent has no independent function (acting as a professional exercising judgment in an even handed manner) but is simply an epitome of the employer. The employer’s agent is the employer’s representative and their relationship is normally governed by the law of agency where the agent has no discretion.
The role of certifier is different to and separate from the role of employer’s agent although two roles are often combined in one person, called Engineer. This distinction is important in all cases when decisions taken by the engineer can be at anytime contested. Once the role extends beyond acting solely as the agent for the employer, and particularly when the role involves issuing certificates or approvals and requires expertise and discretion to some extent, the position becomes more complicated. Hence, it is necessary to look right through the terms of reference to understand the full scope of the engineer’s role and specifically that of the quantity surveyor. In many FIDIC based local contracts, the engineer is a quality audit, a certifier and an adjudicator. This distinction is inevitable due to very nature of the construction and a part of which might in some cases be delegated under clause 3 to engineer’s representative, such as cost consultancy. However one commonality is visible, where an assessment, interpretation or judgment is sought, the industry customs have been towards the quantity surveyor’s recommendation prior to invoke ‘determination’ clause.
Double dipping
This is the practice of receiving compensation, benefits, etc. from two or more sources in a way regarded as unethical. A classic example is that a contractor’s offsite overheads are normally covered by the income of the business as a whole and, where the completion of one contract is delayed, the contractor may claim to have suffered a loss because of the diminution of the income from the contract and hence, the turnover of the business; but the general running costs of his business continue to be expended. Were it not for the delay, the contractor’s workforce would have had the opportunity of being employed on another contract, with the result that it would have contributed towards the overhead costs during the overrun period. Also, if he can show that the staff, who would otherwise have been gainfully employed, had to devote time to dealing with the disruption or delay, he may have a claim for that too. Accordingly, a contractor may seek reimbursement of its head office costs in one of two alternative ways: as additional overheads actually expended as a result of the delay based on the premise that the opportunity to earn elsewhere is lost. The other form is where the contractor argues that, in having resources locked into a site during the prolongation period, he has lost the opportunity of using those resources on other sites where they would have earned a contribution to the costs of running their head office. For this argument to be successful, a contractor must show that work was reasonably plentiful, and that, on a balance of probabilities, other work was, or would have been, available.
What is apparent in above arguments is the extent of difficulty to accurately measure any under/unabsorbed head office overheads, mainly because the damages are too remote and speculative. However, the contractor’s entitlement as to claim for additional overhead costs has been confirmed in case law. If the contractor is unable to show evidence to support this proposition then it may take everyone into an ethical dilemma in the wake of ‘juicy’ claims where such overheads could be recovered separately in payment for variations, variations exceeding 20%, adjustment of preliminaries, and in the pricing of prolongation costs in addition to recovery of home office overheads. This is premised on the basis that the overheads in the BQ rate should not be adjusted where the variation may cause a critical delay when it would not be adjusted if the variation has not caused delay. To deduct this allowance in the BQ rate because the Contractor has incurred a delay would place the Contractor in a worse position than it would have been absent any delay. Usually, the overheads in the BQ rates which are used to price variations are not adjusted. However, it is the loss and expense which is adjusted, not the BQ rate. Not to do so would mean that the Contractor would be paid twice or many times for some element of his additional overheads, which is not intended in contract, and perhaps unethical.
Not to act beyond capacity
Quantity surveyors are sometimes called upon to undertake claims of mercantile and logistic nature, falling beyond the purview of the quantity surveying discipline. Surveyors in construction must not take risks of losing credibility by undertaking something beyond his or her capacity in terms of education, training, expertise and authority. For instance, a quantity surveyor is appointed as an expert witness in a matter before a judicial commission, whose duty is to probe and audit all the contracts awarded by a previous regime. The term of reference of the quantity surveyor was to find out if all payment made were properly, satisfactory and meet the professional requirement justifying the works executed on the project. Quantity surveyor’s remit is to advice the commission as a Construction Cost professional competent to investigate the matter and to present a report during a court sitting. Called into the witness box and under oath, the quantity surveyor delivers his report on each of the contracts. After then, the contractor’s counsel would cross examine based on the report. It could be found out that, some of the members of the panel may be so anxious to really “nail” the contractor particularly when it observed that, there had been “foul play” in the payments made to them. So the questions are inclined to probe into the quality of the works and structural conformance to standards. And then, the quantity surveyor is also answering the questions as if he was a structural engineer and the contractor’s counsel did not see it as unethical. Although the quantity surveyor’s answers are affirmative as if was competent in that field, it is clear that the quantity surveyor acted beyond the limits of competence and beyond the terms of reference. Also, the contractor’s counsel were incompetent to identify ethical breach and use it to discredit the contents of the report which means ethical breaches may go unnoticed depending on who is watching or who is the custodian.
In nutshell, an expert is free to use his own expertise to investigate the question that has been referred to him, taking account of the submissions of the parties as he sees fit, whereas judges and arbitrators are required to decide on the basis of evidence made by the parties. This is one of the greatest strengths of expert involvement, particularly when the issues are technical or scientific. Therefore, an expert is not just appointed to hear the parties’ various contentions and to select between them, but to investigate the facts and to apply his expertise to decide the answer to the question that has been referred to him.
Accordingly, when quantity surveyors are called upon to act as experts to evaluate a case, financially or otherwise, he or she must provide the court or the tribunal with an unhesitant knowledge on the facts and issues. However, the use of expert witness is sometimes criticized because they are often used by both sides to advocate differing positions, and it is left up to a jury of laymen to decide which expert witness to pick up. It is also now common in international construction arbitrations to deploy quantity surveyors to provide individual inputs in certain aspects of the dispute, such as eligibility and quantum. Sometimes these consultants also appear as the parties’ experts, providing reports and giving evidence at hearing and may eventually provide fake testimony.
An expert, who is truly independent, will provide a candid answer to the question which the expert has been engaged to answer. Expert opinions should be independent regardless of the pressures of litigation also otherwise a judge may reject expert evidence on the basis that it does not come from a wholly independent source. If the experts are not properly independent then they will be mere advocates and their opinion will not count for as much, if they count for anything. Hence, the essential qualities of an expert include not only breadth and depth of relevant experience but also an ability to be self-critical so as to produce a balanced judgment. He or she must therefore be able to use his expertise, critically evaluate a given case, show their merits of demerits in application, and help the tribunal understand the pros and cons under each scenario, without switching onto a counsel that is apparently biased towards one party.
Unethical conduct as an expert witness can expose to jail time or fines. Less severe ethical breaches can lead to inadmissible testimony, the loss of reputation, and the loss of future jobs. Therefore, an expert witness shall at all times serve with independence and objectivity, without regard to the consequences to the client. An expert may ethically accept concurrent engagements that are both favourable and adverse to the same party, providing the opinions are logically consistent. An expert should not accept conflicting engagements, either concurrently or successively, that are factually related. An expert witness should disclose any interests the expert may have in the case or its outcome.
Good faith
It is expected that the parties to a contract will act in good faith at all times. To meet this test, it is honesty that comes first in the conduct of the transactions in achieving a reasonable commercial standard in the trade. Accordingly, good faith incorporates both subjective elements by requiring honesty and objective elements by requiring adherence to standards. Although good faith and fair deal go together, it is bad faith, more easily recognizable so that a party may contest when only a bad faith prevails. Some duties of good faith have found their way into Construction Contracts, for instance all tenderers are entitled to know all the grounds upon which their bids are to be assessed and this applies whether they are in public or private sectors. The rationale for imposing a duty in such circumstances is that the tenderer is called upon to make often significant expenditure. It is unfair to expect them to do so while material facts are withheld from them.
Also, the contractor is bound to give a notice at the earliest practicable opportunity whenever he came across something bad is likely, such as a physical obstruction that will hamper progress. The quantity surveyor is usually kept under obligation to address any claim, either pay it or deny it, within a reasonable time. The engineer must inform the contractor in writing precisely why and how it is denied with the provisions upon which it was relied. Further, the contractor is obliged to take steps to mitigate delays and apply his ‘best effort’ to minimize impact on time and cost, albeit how much effort would amount to best effort is not known in exact terms. As such, there can not be technical excuses for breaching the contract or using the specific words of the contract to refuse performance when the surrounding circumstances or apparent understanding of the parties were to the contrary.
Unfair dealing
Negotiations taken place in parallel when one tenderer believes that it is the only party engaged in those negotiations is not fair dealing. This is aptly called bid-shopping. A contractual term which has not been individually negotiated shall be regarded as unfair if, contrary to the requirements of good faith and it causes a significant imbalance of the party’s rights and obligations. Accordingly, parties are not permitted to take undue advantage of the other party’s necessity, indigence, lack of experience, unfamiliarly of the subject matter, or weak bargaining position. The terms must be expressed clearly and legibly containing no concealed pitfalls or traps. A classic example is when penalty imposition is unfair by the contractor. In some contracts, levying penalty starts according to a schedule of eventualities qualified already in the contract, for instance in a road project when the contractor delayed in commencing some designated trench work or even a section of asphalt work on chainage basis. Imposition of penalty in a delay in either commencement or in completion of almost all the individual activities, shown in the bar schedule, or delay due to submission of a traffic management plan constitutes unfair dealing. Courts may in these cases make this clause null and void as it openly kills the concept of pre agreed genuine estimate of likely loss. More over, the contracts with full of penalty events that keep the contractor in a very inflexible setting that restricts him in managing the project is against the doctrine of fair dealing.
It could also be unfair if the employer himself or another contractor carries out any omitted work without consent of the contractor or unless it can be proved that the contractor is technically or financially incapable of carrying out such omitted work. However in some contracts, we find the Employer has the right to omit a part of the scope and get it done by another contractor under a separate contract. Also, the existence of a variation clause does not entitle the engineer to make large scale or significant changes to the nature and scope of work. A variation order that deviates from the fundamental scope, nature, type or complexity of work contemplated by the parties at the time of tender would amount to an unfair deal. The engineer should not therefore introduce work outside the domain of the original job, which would cause hardship to the contractor financially as well as technically. The contractor has the right to refuse any variations beyond this limit, where instructed new work fell out of the contract domain because the additional work were so peculiar, so unexpected and so different from what was contemplated by the contract.
Defending a claim
Unless there is a valid reason to upfront deny, a claim must not be returned unevaluated. Often, a construction contract will contain a written notice provision governing claims and if the contractor fails to give proper written notice of a claim, the employer may assert this failure as a defence to the contractor’s claim. However, a caution is taken whether the contractor’s failure to serve timely notice shall necessarily lose his right to lodge his claim at a later stage. The contractor may of course lose his right to claim if notice is a condition precedent to lodge his claim. The extension of time clause may require the Contractor to claim an extension of time within a specified period from the date that the cause of the delay arose. These contracts seek to prevent the contractor from claiming an extension of time at all for a delay unless he claims within that specified time. These clauses must be sufficiently clear to be enforceable. However, even if the notification clause is not written as a condition precedent, contractors must claim within the time frame specified in the contract. The failure to comply with timely notice as well as submission would be a reason for upfront denial. There are specific time frames on the lodgement of Claims. Claims must be made say, within 21 days after occurrence of the event giving rise to such claim or within 21 days after the claimant first recognizes the condition giving rise to the claim, whichever is later. However the terms ás the earliest as possible’ and ás soon as practicable’ keep time frame little flexible.
An exculpatory clause such as a “no damages for delay” clause may be used by an employer to defend a delay claim brought by a contractor. Enforcement of such exculpatory clauses varies depending on the jurisdiction, but the ‘no damage for delay’ clause generally is held to be valid and not contrary to public policy. If an employer has not assumed the risk of a certain event, the employer ordinarily is not liable for extra costs incurred by the contractor as a result of such event. As a result, a contractor may be entitled to a time extension but not be entitled to additional compensation from the employer for extra costs resulting from the event for which the employer did not assume the risk. For example, a contractor may be entitled to a schedule extension for delays caused by excessive adverse weather conditions but may not be entitled to recover additional costs arising from the delays if the employer did not assume the risk of adverse weather. Is this ethical?
In extreme cases, when an employer is presented with a claim for extra work that the owner believes to be false or grossly misrepresented, an employer may have an action against the contractor for fraud. Claims on global nature can also be denied upfront wherever it finds the causes of delay attributable on the part of the contractor. Where the defendant was not liable for all the causes, it can be followed that there was a need to apportion delay between specific events but which was precluded, by the format of the global claim, with effect that the claim must fail. Finally and most importantly, the engineer may return claim submissions once they are found to be rolled-up with bogus information and not justified with contemporary records in support.
Ascertaining professional fees
The professional service market could be volatile in nature as it largely depends on foreign expertise, in many countries. Prediction on fee levels for longer periods is difficult and the reasons for time extension of a construction contract may be not in fault of the consultant, or sometimes uninterrupted service is critical in a project nearing completion. However, the worse case eventuality is when a contract includes a clause that “should there be any extension to the contract period, the consultant must continue the services at the same monthly rates and prices”. Such a clause expressly forbids any fee adjustment in the contract and passes the pricing risk onto the consultants for an indefinite period of extension.
This is totally unfair, because of the unforseability on the circumstances that may render the existing rates inappropriate for an unexpected period of extension. The employer may well have a claim to consider on quantum meriut basis, depending on the level of deployment for the extended period in question. On the other hand, professionals must compete fairly with other members, partnerships and corporations by merit, and not on the basis of fees alone. It shall not be a breach of ethics for a member, firm or corporation to submit, in response to an enquiry by a prospective client, a fee proposal for the provision of professional services, provided always that such a fee proposal forms part of a submission outlining technical skills, experience, resources, etc. Nor shall it be a breach of ethics when such a proposal is knowingly submitted in competition with the submissions of other quantity surveyors. Assume, a fee of £5 000 has been quoted for a survey of a commercial property. The potential client advises that a competitor had quoted £4 500 and suggests the job is waiting. How it would be ethical to match the lowest bid?
Conflict of interest
Sometimes, the public perception is more relevant than statutes or precedents, for example to undertake work on behalf of a contractor but another part of the business is already working for the client on the same project. In these circumstances, it is imperative to explain the situation to the prospective client and then politely decline the opportunity. But people placed in positions of judgement or power must take extra steps to insure that their private interests do not compete with their professional functions. A conflict of interest may arise, for example, if a tender board awards a contract to a company owned by a relative of the tender board member. It would not be illegal to award such a contract to the best qualified company, even if that company were indeed owned by a relative, but the member of the tender board could not be part of the decision making process. Similarly, interviewing prospective staff belonging to the same employer on the request of another employer on secondment would also constitute a conflict of interest. Loss of public confidence and a damaged reputation are the most likely results of a poorly managed conflict of interest. Disclosure of a potential conflict of interest is always sensible as an individual quantity surveyor and adopting a conflict-of-interest policy that prohibits or limits unethical transactions is healthy for a professional service provider.
Conclusion
A duty is implied in a contract to serve the employer with reasonable care and skill in the delivery of professional services. An important element in the code of conduct is that the members should meet the standards of professional competence. It is incumbent upon the member to provide their client with the information and guidance necessary for the client to make an accurate and informed decision. Thus, even without reference to any standard form of engagement, the duty to act with reasonable care and skill is covered one way or the other. There is a minimum level of conscience any client expects from a professional, a level that is measured against where the majority of similar professionals stand in terms of approaches and strategies under given circumstances.
About the Author
Dr. Chandana Jayalath is a Fellow of the Royal Institution of Chartered Surveyors, UK and the Institute of Quantity Surveyors, Sri Lanka. He is also a Member of the Chartered Institute of Arbitrators, UK. With nearly 20 years industrial exposure in quantity surveying, contracts administration, claims analysis and dispute settlement. He has published a book on Post Contract Administration in Oman and more than 150 technical articles on-line. His recent book titled ‘Contractual Dimensions in Construction’ is published by iUniverse in NewYork. Having spent much of his career as a Chartered Quantity Surveyor at different types of construction projects at various contracting, consulting, project management and employer organizations, both private and public sector, Currently, he has been attached to Public Works Authority in Qatar, on secondment basis to undertake review and settlement of intricate commercial, contractual and technical issues via a neutral mechanism. He has been an external mentor for post graduate studies and a frequent counsellor to many hundreds of candidates sitting in the final APC for RICS. He is a guest speaker to many professional venues internationally.
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