Rebuttal: “Architects shun their new law”- A response (Part 1) 

SHARE   |   Monday, 23 October 2017   |   By G S Manowe

It is either BIACT have failed to understand and correctly interpret the relevant legislation, including their references to the United Kingdom legislation (UK) or deliberately ignore and distort the truth to further their hidden agenda. The general public, administrators, academics, politicians, legislators, legal practitioners,  the executive and the indeed the judiciary deserve to know the extent of falsehood or perhaps, and as a lesser evil, the sheer lack of comprehension and extent of false consciousness that is afflicting self–proclaimed architectural professionals, in the country, who are intent on defending their roles from the past and by default in the absence of  regulation, as architects or technologists albeit and perhaps not qualified. Although an exchange in the print media is least desirable and regrettable, it is unavoidable under the circumstances. I write, without fear or favour, as a professional in my own right and as an inseparable part of the regulator!

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The claimed vesting of statutory authority in the institute and conflict of interest

In the Architects’ Registration Act (the Act), the institute refers to any voluntary organisation registered in terms of the Societies Act that represents the interests of architectural professionals. The Architects Association of Botswana (AAB) is currently represented in the Architects Registration Council (ARC) by four members only by virtue of it representing the majority of practicing architects – See Section 2 of the Act, thereof.  Any other voluntary organisation can be represented in the ARC provided it meets the above criterion, but not all associations can be represented at the same time. Notwithstanding the above, nothing in the Act precludes the membership of the “institution of architects” by technologists or draftspersons or those that are not practicing – the very reason why the AAB has membership categories of draftspersons, technologists and associates. The Act (Section 5) simply provides for the election or appointment to the ARC of a person eligible for registration and that includes draftspersons and technologists in terms of the Act as amended. It cannot be concluded that representation in the institute and by extension the ARC, is exclusive of other professionals – technologists or draftspersons or non-practicing architectural professionals. There is a deliberate and important provision in the Act to promote freedom of professional association and to separate but not divorce this from regulation because practice and regulation are closely interlinked. Professional representation in the ARC is not perpetually tied to a particular professional body, but it is without doubt essential for purposes of self-regulation, the same way it applies virtually for all countries in the world, the UK included where at least seven out of the 15 members of the Architects Registration Board (ARB) are to be representative of registered architects and the fact that its appointed members may also have some background in architecture although they shall not be registered, creating, therefore and by far,  the  majority for the architectural profession – seven or more out of 15 members and one out of 15 for others – refer to Schedule 1 Part I of the ‘Architects Act of 1997’ and visit the ARB website- www.arb.org.uk for profiles of members.

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Reference, by BIACT, to the example from UK only serves to demonstrate international respect of the core principle of self-regulation. To suggest that the regulation of any profession should be dominated by people without the relevant professional background is not tenable and not the practice anywhere in the world. Why then this is aggressively lobbied for by BIACT remains to be clearly exposed and exposed it should! Statutory authority, just like in the UK, is exclusively vested in the Architects’ Registration Council, a body established by Act of Parliament and not an association.  Freedom of professional association is reinforced by the fact that to be registered (Section 23 of the Act) one does not have to be a member of any or particular professional body. The above articulates the noble principles that were fought for when the original Act was being crafted and should be applauded rather than lambasted. How many members of the ARC are there for the public interest? The answer is at least all those that are not practicing architects, technologists or draftspersons, elected or appointed through various means including a Department of Building and Engineering Services (DBES) official and a member appointed by the Minister both of whom may come from different professional backgrounds, a lecturer from a tertiary institution appointed by the Human Resource Development Council (formerly Tertiary Education Council), several co-opted and other suitably qualified persons who may serve in ARC committees, that have fully delegated functions and powers in terms of section 13, its task forces or disciplinary panels including, as at present and as the Act provides, a lawyer and an accountant. Members of the ARC and registered architects, whether members of an institute or not, also have vested interest in the protection of the integrity of their own profession. Like the Act that establishes the ARB in the UK, members of the ARC are bound by the Code of Conduct of the Business of the Council (a board charter soon to be finalised for this relatively infant ARC) and other provisions in the Act, the basic principle of which is to compel, through such instrument, members to take decisions and act in the public interest and not to advance their own financial or material gain. It is a principle that is enshrined in the Act and shall be mirrored and amplified in the governance tools the ARC, as a governance arm of government, is empowered to make. Yet there are people who will choose to ignore all these facts and rubbish the hard work of men and women who contributed to the promulgation of this Act – professionals in and outside of the ARC, administrators, Cabinet, Attorney General’s Chambers and members of the public that offered their comments on the draft bill. 

The tariff of fees and the notion of price fixing 

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It has been explained time and again that the tariff of fees for the provision of architectural services in this country, likewise engineering and quantity surveying services, is both cost-based and time-based. The principle of a standard cost-based fee is to promote competition and allocation of work based on merit and reward professionals fairly, consistently without favour or unfair treatment, and in a sustainable, easily controlled and corrupt free manner. The tariff applies to every professional who offers services for a fee – public or private. In Botswana and as a bit of  history, the current cost- based fee for architectural services was adopted as a stop-gap measure to facilitate the speedy delivery of government projects up to the current limit of P150million of construction cost, pending in-depth evaluation and formulation of a more refined tariff – hence the adoption of the South African Council for the Architectural Profession (SACAP) Tariff of fees with significant modifications to the primary fee, secondary fee and cost brackets, and after consideration of construction cost indices published by KPMG. The engineering and quantity surveying regulatory authorities similarly adapted South African fee scales. Adoption of the cost-based fee by Cabinet up to the said limit and beyond which the time-based fee kicks in, for engineering, architectural and quantity surveying services was also based on the assessment of advantages and disadvantages. The advantages far outweighed the disadvantages for small to medium size projects (summary of findings available).

The tariff of fees (cost and time-based) is subject to continual review and improvement to ensure fairness and socio-economic sustainability on both the professional and client side. The exercise to produce a refined and more socio-economically  relevant tariff will be completed by the ARC in due course and in consultation with the Minister in terms of Section 51 (2) (b) of the Act and by necessity and ultimately, the PPADB. It is not simply an ARC affair as BIACT would like to put it. Emanating from experience and acknowledgement of need, the cost-based fee, used exclusively many years ago, has been reintroduced by government to a limited degree and compliments the time-based fee in the context of Botswana’s procurement environment, something of envy by other countries. Whilst the interests of the consumers are considered, price is not the only factor. It is important to note that whilst government has adopted a cost-based fee for construction cost up to the specified limit, which may be adjusted, and subject to reasons already outlined, competition based on fees for any size of project, in the private sector, is available as an option in accordance with the Framework for the Delivery of Architectural Services and Use of the Tariff of Fees (the Framework) developed by the ARC (SACAP framework used as a template). Competitive fees offers shall be based on hourly rates by category of registration, tasks to be undertaken or allocated to each category, the resourcing of the project by category and man-hours to perform those specific tasks. As an important departure from the SACAP tariff and at the cost bracket below P180, 000-00, the Framework (Clause 2.2 (1) which requires that the lowest of the two forms of remuneration be selected eliminates the use of the cost-based fee, at that cost bracket, given that the time-based fee will, in any case, be the lowest for an 8 to 10 hour work and for selected work-stages necessary for that size of project. Notwithstanding that BIACT’s calculation (34,002-89) of the cost-based fee for a cost bracket just below P180, 000 and for all work-stages, including those that should be omitted, is theoretically correct – theoretical by virtue of the assigned value of  the works (lower threshold) of P1-00 construction cost, that fee is not applicable in terms of the Framework. Besides, it also amounts to a double charge and it is inconsistent with the rest of the table on the proportion of the primary and secondary fee (secondary fee to be always lower and calculated in excess of the lower threshold). As the key resource person then and in the adaptation of the SACAP tariff, I can attest that the principle behind the calculation (13,303) is that the secondary fee should not be considered or the lower threshold for this cost bracket should  be  “Not Applicable” instead of P1-00 as indicated in the tariff  table.  In the discharge of its duties in the public interest and protection of the integrity of the profession, a revised version  of the tariff that emphasizes fair remuneration, ease of application, sustainability and affordability to the extent necessary, is already in the offing. An aggressive campaign and process to educate the public and to provide advice, as it may become necessary at any time, will also be embarked upon. In terms of professional ethics and code of conduct, it is the professional who has the duty of care to apply the tariff and the Framework correctly. In case of a dispute, the ARC can be called upon to assist with interpretation or correct application. Anyone who considers the above provisions objectively and honestly would not be intent on advancing the hollow argument of price fixing and lack of integrity in the regulatory process.

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The ruling by the South African Competition Commission against the application by six built environment professional councils in South Africa for exemption from the provisions of Schedule 1, Chapter 2 of the Competition Act is based on a different set of circumstances. Fundamentally, Botswana’s procurement policy provides for effective price competition through its rigorous bidding system and from which other countries have learnt, including South Africa. The ARC Framework and not simply the cost-based fee, as outlined above, is consistent with that procurement policy. Suffice to say that the Competition Authority here in Botswana has yet to find, and as requested by BIACT, anything anti-competitive about the Act.

On registration categories, roles and competencies

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What the law provides is that everybody, regardless of the academic path, must be subjected to the same minimum entry level standards for the category they are applying for. Categories are about minimum entry levels for purposes of recognition of the use of the title and practice. The minimum standards should be set so as to maximize entry without compromising the integrity of the profession at any level. Academic transcripts, not diploma or degree titles are critical to demonstrate admissibility.  Indeed, the correct interpretation of the Act, whether BIACT accepts it or not, is that a person from a technology or other stream can be registered in the category of architect. The ARC is empowered by legislation to determine admissibility and progression from one category to the other. Ceilings in terms of section 48 of the Act and conditions thereto can also be reviewed.  Criteria applied and outcomes of any review will, in due course, be published for everyone to know. The argument that there should be more than 1 category of registration for technologists, if at all logical, should then be applied to all other categories. As an example, there are people with PhDs in architecture. Should there be a registration category for “PhD architect” or practicing architects with PhDs? The ARC has maintained that academic or other superiority of that nature should be left to competition to offer services where a PhD qualification can be an added advantage to the practitioner or added benefit to the project. As it stands, SACAP is having enough troubles with numerous levels of registration categories that unduly encroach onto issues of hierarchy and seniority in an architectural firm. In terms of the Act, membership of any professional organization, only counts towards registration if vetted by the ARC in accordance with section 23 as amended, the purpose of which is to furnish “sufficient guarantee of the required academic knowledge of, and practical experience in, architecture”. Membership titles or positions in local or foreign institutions and/or voluntary organizations do not automatically provide the necessary guarantees or evidence of expert knowledge in the profession. What next are we going to hear from BIACT and how will that be reconciled with national interest and international best practice? I rest my case!



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