Collaborating lawfully to perform Architectural Consultancy services in Malaysia

By Ar Ridha Razak

In the vast moving world of technology and trends, the demand of Architectural consultancy
service has been more and more demanding. The basic scope of service for an Architect is no
longer as simple as a sketch drawing and artist perspective. It has evolve to a more computerize
and specialize profession. New requirements like universal design, green building, BIM is a
norm and expected by some clients as part of the service of an Architect.

Due to vast requirement of specialization and rising cost of business set up , collaboration is seen
to be the answer to reduce cost and get the best outcome of specialization between parties. The
new generation companies prefer to share the cake with its peers to produce the best outcome for
the project.

It cannot be denied that not all architects strength encompasses the overall scope of basic
services. Some strength lies in design while others in approvals or contractual administration of
the project. The Basic scope of service in SOMF 2010 allows this as an ACP may provide partial
services at all stage.

There are many type of collaboration that exists in the market. The main principle is that the
local Architectural Practice must be the entity that has direct agreement with the public ie the
client. Should the other entity a non ACP has a direct agreement with public, that can be viewed
as an unlawful contract and shall not be entitle to claim any remuneration as prescribe in
Architect Act .

Defining lawful vs unlawful collaboration

There are many scenarios of lawful collaboration between 2 or more companies to perform
architectural consultancy service. The scenarios are as follows:

Scenario 1: Lawful collaboration with local ACP agreement direct with public
1. Between Local ACP & Local ACP
2.Between Local ACP with 2 Local ACP (tripartite agreement)
3. Between Local ACP and Foreign Architect as prescribe in the Architect Act.
4. Between Local Architect and Specialist Consultant( may be appointed directly as allowed in
SOMF 2010)

Scenario 2: Unlawful collaboration either with unregistered company, person or when local ACP
is a sub consultant to an illegal practice.
1. Between Local ACP and foreign architect or Entity that is not registered in their nation or
APec or Asean Architect.
2. Between Local architect and LAM unregistered graduate architect or Graduate interior entity
3. Between Unregistered ACP and local ACP
Should the collaboration falls in the category of unlawful, the parties might find them self in a
situation where its fee claim shall not be able to be sustain in its legal claims. This is
demonstrated in Kerajaan Sarawak vs Sami mousawi where Sami Mousawi and its consultant
fees cannot be sustain as not a registered engineer or architect under the architect or Engineers
Act. This can also be referred to case law BEP Akitek (PTE) v Pontiac Land Pte Ltd (1992) 2
SLR 251 where BEP as a non-registered company in singapore, could not sustain its fee in the
court of singapore. In rashid kader Arkitek vs Kiswire, the judge decision was that fee claim by
Rashid Kader Arkitek for the work perform by unregistered Quantity Surveyor under Surveyors
act cannot be sustained.

Challenges in Collaboration

There are many challenges for collaboration between 2 companies to succeed. For it to work,
both parties must be able to work together, to determine and clearly divide the agreed scope &
services, to be able to agree on the apportionment of percentage or fees and liability. Without
these basic establishments, the spirit of collaboration will be exposed to potential dispute in the
future.

Another important aspect that needs to be considered is for all parties to understand that the
development in Malaysia is govern by various acts and rules in dealing with construction permit.
The success in completing the project in accordance to approve plan to achieve CCC will heavily
be dependent on the level of interference of the collaboration especially towards design changes.

An important aspect to really look at is when a local ACP starts delegating contractual
administration to its collaboration partner who is not competent to perform such works. Many
ACP who collaborates often behave like a signing architect only and totally neglect the site
progress until completion. When the project completes, they leave it to the owner to chase for all
consultants in order to obtain CCC.

There are many more considerations that need to be considered when deciding to perform
collaboration. Should a party is unclear of the laws of collaboration; the board of architects is
there to assist the parties for their queries.

Remember, it is very important to pay attention to the mechanics and working of a collaboration
between ACP and others as if it’s not properly thought, it may lead to contravention to acts and
worst loss of opportunity to claim fees for works completed.