NO TIME LIKE THE PRESENT WHEN CAN CONSULTANTS CHARGE TIME-BASED FEES?

Projects often run into delays. A common question that arises is whether consultants/ professionals can claim additional fees due to the period of delay. Often, consultants agree to a value-based fee, meaning that the amounts they can charge are linked to the overall value of the work. In circumstances of delay, consultants often feel that they are automatically entitled to revert to and claim time-based fees. This is not always the case.

Peter Barnard, a partner at Cox Yeats, clarifies the circumstances under which time-based fees can be claimed across various disciplines. Each professional discipline is governed by its own Act. Government Gazettes containing guidelines and tariffs are published in terms of applicable Acts. T he first crucial point is that the tariffs do not automatically apply to an agreement unless they are expressly agreed to between the parties. Where they are specifically incorporated, there are specific circumstances which must be met before time-based fees can be charged. I deal with each below.

Architectural Services

Government Gazette No. 51352 dated 4 October 2024 provides for a Guideline for Professional Fees in terms of Section 34 (2) of the Architectural Profession Act, 2000 Act 44 of 2000 (the Architectural Guidelines). Clause 27 of the Architectural Guidelines entitles Architects to charge time-based fees if the initial contract period is extended by more than 10%, through no fault of the architect.

The Architectural Guidelines further record at clause 19 that where the fees for the architectural professional services are time-based fees, the hourly rates as set out in the guideline for professional fees may apply. Whenever these rates are revised, the new rates may apply to work performed after the effective date of such revision.

Quantity Surveying Services Government Gazette No. 52152 dated 21 February 2025 details the amended Guideline Tariff of Professional Fees Quantity Surveying Profession Act 2000 (the Quantity Surveying Guidelines). Clause 4.3 of the Quantity Surveying Guidelines entitles Quantity Surveyors to charge time-based fees if the actual construction period less any extension of time allowed for additional measured work exceeds the initial contractual construction period by more than 10 per cent, through no fault of the quantity surveyor, then an additional fee shall be charged, which fee shall be calculated at the hourly rates according to the guidelines together with all related reimbursable expenses.

The additional fee must, however, be agreed to in writing with the client prior to the commencement of additional work and/or extension of time.

Project and Construction Management Services Government

Gazette No. 42697 dated 13 September 2019 and titled Amended Guideline Scope of Services and Recommended Guideline Tariff of Fees for Construction Health and Safety Professionals Registered in terms of the Project and Construction Management Professions Act, 2000, apply to professional construction project management services, records at clause 6.5 that Project and Construction Managers may only charge time based fees for additional services in the event of the extension of the initial contract period where there has been agreement in this regard.

Engineering Services

Government Gazette No. 44333 dated 26 March 2021 and titled Guideline Scope of Services and Tariff of Fees for Registered Persons 2021 records at clause 3.3 that the agreement on the scope of additional services and remuneration must be agreed in writing, preferably before the services are rendered. Clause 4.3 records that unless agreed otherwise in writing, the fees for additional services are calculated on the basis of time and actual costs.

The application of time-based fees for additional services in the event of an extension of the initial contact period should therefore be agreed in advance.

All professionals should keep the above in mind prior to signing Consultancy Agreements.

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