2 May 2020: QBCC Licencing Update to Members from AILA QLD President, David Uhlmann
AILA representatives met with QBCC and DHPW in early March via video link seeking an update on a way forward on the issue of Landscape Architects needing a QBCC licence for Contract Administration work, despite there not being a suitable licence category for us to apply for.
After an in-depth discussion we did not come to a satisfactory conclusion as there is no quick fix - any solutions will need to be regulatory or legislatively based which is ultimately a policy position for the Government and Cabinet. It is therefore safe to say there will not be a solution put in place until after the next state election or next year at the earliest, as the parliament is occupied with COVID-19 related emergency legislation.
We have also requested advice in writing from QBCC or the department on all of the above, but none has been forthcoming as yet. They did invite us to send another letter to the Minister fully outlining the issue, the risks, and the type and scale of projects potentially effected - which is in progress. We are waiting on some correspondence from a lawyer regarding some pro-bono legal advice on these issues, and from AILA’s insurer before we finalise our response to government.
Key points of the advice given in the meeting were:
- Design phases are unaffected – landscape architects have a QBCC exemption for being principal consultant for “design work"
- For the Contract Administration phase, the only “Technically Legal” options appear to be:
o For new projects, LA can be principal consultant for all design phases, but CA phase will need to be contracted separately with a PM firm or a D&C contractor as the QBCC licence holder and principal contracted entity for CA, ideally with the design LA novated to them.
o For existing projects in design phase but not yet in CA phase, the best option is for the CA portion of the contract to be renegotiated to meet the new interpretation of the act as per above (i.e. PM or D&C firm as principal contracted entity and QBCC licence holder with design LA novated)
o For existing projects in CA phase the advice is less clear as there is no simple answer or clean solution – but the two options for a technically ”legal” solution are:
Option 1: the existing LA CA contract to be terminated, and a variation issued to the QBCC licenced construction contractor to novate the LA under them as a hybrid D&C contract for the balance of the CA work and fees.
Option 2: the existing LA CA contract to be terminated, and a new contract issued with a project management firm as the QBCC licence holder and the LA novated to them for the balance of the CA work and fees
Note: All of these options assume you will be able to find a PM or landscape contractor willing to take on the risk as principal contracted entity, as it would affect their insurance as well.
I know this will not help firms much but unfortunately that is the best current advice - the lack of a short-term fix helps no-one. I would also say that clients need to be reasonable in renegotiating any contract going forward, as this was an unforeseen interpretation of the regulatory and act requirements that goes against decades of practice method. Clients also need to be aware that there would be no point changing consultants anyway for the Contract Administration phase as there will not be any other practices who have the appropriate licence specific to LA practice. They also need to be aware that in spite of the legislation black hole we find ourselves in, the design phase consultant will always be best placed to undertake the CA phase as they have to most detailed knowledge of the design and detailing.
Even Architects need to get a QBCC license if they are undertaking Contract Administration phase works on a project they did not design or document.
We recommend being open and transparent with clients around this issue as there is risk to both client and consultant in any of the short-term scenarios presented. Ultimately the client is going to have to sign off on some level of risk.
It is also important to advise members that keeping full and complete paper trails on all activities and instructions during Contract Administration phase is more important than ever before.
We were previously informed to apply for a Project Management licence as per the last update to members, however this licence has since been deemed unsuitable (see original member update here).
We are hoping to have our response to government finalised by mid to late next week. In the meantime, if you have any questions, please join us at our virtual chapter catch up on Thursday 7 May email us for the zoom link.
This information is an update to the previous information provided here.