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ICE contract
#1
Hi everyone

The ICE Conditions of Contract for Archaeological Investigation were published in 2004.

Has anyone got any direct experience of using this form of contract, either as an employer or as a contracted organisation ?

I am interested to find out if the Contract is seen as a useful, workable document, or has pitfalls that may not have been fully envisaged when the document was first put together.

I would point out that I have no experience of using it, so have no fixed opinion of its usefulness or otherwise.


Beamo
#2
Yes, we have been using it for all the specs we put out since it was published. No problems so far, although it has removed some pre-existing problems.

It might require a bit of hard thinking for those not used to contractual terminology (nearly everyone in archaeology, including me before I got involved in that side of things). Happy to answer questions on BAJR if needed.

I note that North Yorks CC curators are now including its use as a requirement in their WSIs for PPG16 work.



1man1desk

to let, fully furnished
#3
Thanks 1m1d

When I first glanced through the contract it appeared to be suitable for situations when an archaeological contractor was employed directly by a developer, but potentially more problematic when the contractor was procured by, and through, a consultant on behalf of the developer. Any views on this ?

I'm nor sure as to the wisdom of curators stipulating the use of this contract in briefs or WSIs - is the contractual position between a developers and their agents any business of the curator ? OK so it is in the interests of the curator to be satisfied that the programme of archaeological works will be carried through to its full conclusion, but that can be addressed through other mechanisms. The contractual relationship between a contractor and a developer is a matter for the two parties and to a great extent it is a confidential matter.


Beamo
#4
The contract is based on civil engineering standard contracts and also has close similarities to construction contracts. It won't make any difference if a consultant is employed.

Are you saying that an archaeolgical consultant will usually employ(i.e. enter into a contract with) a contractor? In other words the comsultant is carrying out the work and is therefore not a consultant, he is a contractor. It makes no difference that he is employing anothe party as effectively a sub-contractor. I have to say I am, in my naivete, astonished.

What I have assumed to be the intention of the contract is that it works like an engineering or construction (or any other come to that) contract. Simply because a consulant prepares a form of contract, tender documents and invites tenders does not mean that the contractor is not employed by the employer. The consultant is named in the contract but has not entered into a contract with the contractor. This is exactly the same as an architect, for example. Technically a consultant does not appoint a contractor. He analyses the tenders and prepares a report for the employer who will/may then engage the appropriate contractor. The consultant does not sign the contract but will be named in it in order to have powers to administer the contract. The contract is designed to allow for this.

There is nothing confidential in such contracts. The financial matters will not be available to curators or anyone else. I would wonder whether a curator has powers to specify a form of contract however, but could say "or other suitable form".

To be honest I was gobsmacked to learn that there was hitherto no standard form of contract. Every other discipline has them and pretty much could not function without them.

We owe the dead nothing but the truth.
#5
Invisible - thanks for the response.

Regarding the contracting out of the work, it has been my experience as a consultant that some work is indeed contracted directly by the developer to the archaeological unit with the consultant acting as some form of 'middle man' as you indicate, i.e. preparing and agreeing the Project Designs, organising the tender competition, advising on appointment, monitoring of compliance etc.

However, in some circumstances (probably more than 50% of my own workload) the developer prefers that the archaeological contractor is procured directly by the consultant, and the charges are passed back to the developer either at cost or at cost plus an agreed handling fee. There are numerous reasons for a developer using this route, especially developers with a particularly cumbersome procurement system whereby it takes a lot of effort to have an archaeological contractor approved to provide services beyond a certain cost, whereas the consultant is already approved. It is for these situations that I am looking for feedback regarding the ICE Contract.

In my previous role as a project manager for a large archaeological contractor I was consistently amazed by the lack of detailed contracts for what were actually quite costly pieces of work. Many projects were simply done on the back of a letter agreeing to a quotation to implement a particular scheme, or merely through the issue of a Works Order - I am always surprised at the low level of litigation / arbitration in the post-PPG16 world.

A standard form of contract would be a 'good thing' - but is the ICE Contract the right one for all contracted archaeological work ?


Beamo
#6
Well, as I say, if an employer pays a sum of money to a consultant for both "consultancy" services AND to have the "physical" work done, then the consultant is no longer a consultant, he is the contractor. There is no direct contractual link between the employer and the "actual" contractor. This would not be recommended (possibly not permitted) in other disciplines due to a potential conflict of interest. However, there must be a form of contract in that case between the employer and the consultant/contractor, and a normal consultancy agreement would be wholly inadequate. It's a bit like a design and build contract (awful concept but thats by the bye).

I wonder why employers find it cumbersome as they would for example employ an architect (and engineers, QS etc i.e. the consultants) and will also contract directly with the building contractor, and much bigger sums are usually involved. Same thing, and as I understand it, was the original intention of the roles at the outset of PPG16, even using the same terminology and names of roles.



We owe the dead nothing but the truth.
#7
I am told that the use of standard contracts is no longer legal under European Law. Each contract has to be individually negotiated and agreed. The ICE is useful starting point.

For small jobs an agreed letter of instruction is much better.


Peter Wardle

#8
They are individually negotiated. The standard form is just for the basic structure of the thing - methods of payments, payment intervals, work not in accordance with the contract, date for completion and so on. Think of it as a proforma. What is done and for how much is negotiated. There is no way every construction contract - and subcontract - and sub subcontract - in Europe is going to be wholly individually negotiated from scratch, that would be absurd. I doubt if anyone could think of enough variations, there are thousands every week!

We owe the dead nothing but the truth.
#9
Invisble wrote

'There is no direct contractual link between the employer and the "actual" contractor.'

Exactly - and that has been the issue that I have been looking to explore all along here. The ICE Contract does not appear to be applicable in situations where the archaeological contractor is not directly employed by the developer - or is it ?

Beamo
#10
There has got be a contract somewhere! I see no reason why the ICE would not be applicable in the scenario you describe.

Either: the consultant can become an Employer, and the contract is between the consultant and the contractor. There will be another contract between the client (developer) and the consultant. This is dodgy and I'm trying to work out who is most at risk here! Depending on what sort of sums we are talking about - the contractor would want to be satisfied that the consultant (now the Employer) has the funds to pay him. He (the contactor) is not interested in the next link in the chain to the client, but only the party with whom he is contracted. This scenario would not occur in another discipline.

Or: the consultant becomes a Contractor, and the contract is between him and the client/developer (the Employer). There will be a sub-contract between the consultant-now-contractor and the "actual" contractor. Bea in mind that strictly speaking pay-when-paid contracts are illegal. Again the actual contractor needs to be satisfied that the consultant-contractor has the means to pay him.

I see the fault not being in the ICE contract but in the blurring of roles and responsibilities. A direct link between the client/developer and the (actual) contractor needs to be established.

I am assuming that we are talking about reasonably sized contracts of course. As Doc Pete says a mickey mouse job in 4 figures is more akin to having work done on your house, to pursue the construction analogy. It goes without saying that such a contract is buttoned up as tighly as possible as well though.... doesn't it????

We owe the dead nothing but the truth.


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