The Employer's Agent: What They Do on a Design and Build Project
An Employer's Agent (EA) is the person or firm a client appoints to run a design and build contract on its behalf. Under the JCT Design and Build Contract, the EA is named in the contract and acts for the Employer: receiving the contractor's applications, issuing payment notices, administering changes and dealing with completion and defects. Unlike an architect or contract administrator on a traditional contract, the EA isn't an independent certifier. It acts as the Employer.
That difference is the whole point of the role, and the source of most misunderstandings about it.
What the Employer's Agent actually does
The work changes with the project stage.
| Stage | Typical EA tasks |
|---|---|
| Before tender | Help prepare the Employer's Requirements, advise on procurement, set up the tender |
| Tender | Issue documents, answer queries, analyse bids and the Contractor's Proposals, report on value and risk |
| Contract | Agree amendments with the client's lawyer, complete the Contract Particulars, check bonds, insurances and warranties |
| Construction | Receive applications, issue payment and pay less notices, value changes, run progress meetings, report to the client, review the contractor's design submissions against the requirements |
| Completion | Inspect, deal with practical completion, track defects, manage the rectification period and release of retention |
| Final account | Agree the final contract sum and close out |
Some EAs also act as the client's cost consultant and project manager. Others only administer the contract. Read the appointment, not the job title.
Why the EA isn't independent
Under a traditional JCT contract, the architect or contract administrator certifies payment and completion, and must act fairly between the parties when doing so. Design and build works differently.
Industry commentary on the JCT design and build form puts it plainly: the contract does not support third-party certification, and the EA is effectively the Employer. The EA carries out the Employer's duties on its behalf, with little or no discretion, and has to follow the client's instructions. In one case the courts held that a notice of failure to complete from an Employer's Agent didn't carry the binding effect of an architect's certificate.
What that means in practice:
- For the client. The EA is on your side. You can instruct them, and they report to you. But their decisions are your decisions, and the contractor can challenge them through the contract's dispute process, including adjudication.
- For the contractor. There's no neutral referee. If the EA is also certifying, the appointment and the contract need to say so, and the EA must then act fairly in that role.
- For lenders. Because the EA isn't independent, funders appoint their own monitoring surveyor. More on that below.
Employer's Agent vs other client-side roles
| Role | Acts for | Independent? | Typical contract | Main job |
|---|---|---|---|---|
| Employer's Agent | The client | No, acts as the Employer | JCT Design and Build | Administer the D&B contract, payments and changes |
| Contract administrator / architect | Administers the contract | Must act fairly when certifying | JCT Standard Building, Intermediate | Certify payment, completion and extensions |
| Project manager | The client | No | Any, including NEC | Lead the whole project and team, programme and decisions |
| Monitoring surveyor | The lender or investor | Independent of the borrower | Funder's appointment | Report to the funder on cost, programme, quality and risk |
| Clerk of works | The client | No | Any | Inspect quality of work on site |
The monitoring surveyor's role is covered in detail in our guide to the development monitoring surveyor.
The 2024 contract changes the EA must work to
The JCT Design and Build Contract 2024 changed several things an EA handles every week:
- Most notices can now be sent by email; key default and termination notices only if the parties have opted in.
- The Employer's period for deciding an interim extension of time fell from 12 weeks to 8 weeks.
- Dispute notification and a meeting of named senior executives are now part of the main conditions, alongside the right to adjudicate.
- The contract records who is principal designer and principal contractor under the Building Regulations dutyholder regime, and both parties must meet those duties.
An EA working from 2016 habits will miss deadlines that now run shorter. The wider changes are in our guide to the JCT Design and Build Contract 2024.
How a change works, step by step
Changes are where an EA earns the fee. A typical sequence under JCT design and build:
- The client wants something different. The EA checks whether it's a genuine change to the Employer's Requirements or something the contractor already has to provide.
- The EA asks for a quotation before instructing, where time allows, so the cost and time effect are known first.
- The client decides with the EA's advice on value and programme.
- The EA issues the instruction in writing, in the form the contract requires.
- The change is valued, using the Contract Sum Analysis where it applies, and included in the next interim payment.
- Any time effect is assessed as part of the extension of time process, within the 2024 deadlines.
Skipped steps cause disputes. An instruction given verbally on site, with no price agreed, is the most common source of a final account argument.
The client's duties don't move to the EA
Appointing an EA doesn't hand over the client's legal duties. Under CDM 2015 and the Building Regulations dutyholder rules, the client must make suitable arrangements for managing the project, appoint the right dutyholders and provide information. An EA can do much of the work, but the duties stay with you. Our guide to CDM 2015 client duties covers them.
Who acts as Employer's Agent?
Most EAs are quantity surveyors, building surveyors or project management firms, because the role is mostly about contracts, money and change. What matters more than the profession:
- Design and build experience. The EA must judge contractor design against the Employer's Requirements without redesigning it.
- Cost control. Valuing changes, interim payments and the final account is where money is won or lost.
- Notice discipline. Missing a pay less notice or an extension of time deadline costs real money.
- Time on site. An EA who visits once a month will learn about problems from the payment application.
- Independence from the contractor. No commercial ties with the firm being administered.
Red flags when appointing an EA
- No experience of the contract edition you're signing.
- A fee so low it can only buy a monthly visit.
- An appointment that doesn't say whether they certify or just administer.
- No cost management in the scope on a project where changes are likely.
- Unwillingness to say who in the firm will actually do the work.
Fees are agreed per project and depend on scope, size and duration, so compare scopes line by line, not headline percentages.
Do you need an EA at all?
On a straightforward design and build job with an experienced client, the client can administer the contract itself. Most clients still appoint one, because a single missed notice can cost more than the fee. On larger schemes the question is usually whether to appoint a separate EA and project manager, or one firm doing both.
On a design and build project, the contractor's team and the client's EA deal with each other every week: payment applications, change valuations and progress reports. When a client wants someone on their side of the table, our construction project management and development management teams lead the project for them, and the development management fees guide explains how those roles are paid.
Planning a design and build project and want it set up properly from day one? Send us the address and the brief.
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