The scope of loi MOP
Loi MOP applies to public clients: the State and its agencies, local authorities and public bodies. It does not apply to private clients, even where they receive public subsidy, save under particular public procurement provisions.
Certain buildings procured publicly are exempt from loi MOP, notably industrial facilities whose design is dictated by the process they house, and buildings acquired by social housing bodies off-plan.
The founding principle
ℹ The principle of the core appointment: one team, from beginning to end Loi MOP requires the design to be entrusted to a single, answerable team, from first sketch to handover. The principle forbids splitting the appointment between one team for the design and another for the site. It was a significant advance on earlier practice: the design team that conceived the project also supervises its construction, which keeps the architectural intention and the built result in step, and keeps liability in a continuous chain.
What the core appointment contains
The implementing order of 21 December 1993 defines precisely the elements a design team may be engaged for. The core appointment comprises:
| ESQ, concept design | Testing the feasibility of the brief, first budget envelope. On new build only; replaced by a survey in existing buildings. |
|---|---|
| APS, outline design | Preliminary technical options, estimate by trade. First commitment to a provisional forecast cost. |
| APD, developed design | Settled technical definition, APD quantities, planning file. Definitive commitment to the forecast cost. |
| PRO, detailed design | Specifications, construction drawings, pricing schedules. Everything the tender process requires. |
| ACT, contract assistance | Analysis of the bids, comparative table, settlement of the contracts. |
| VISA | Review of the construction drawings produced by the contractors, or EXE where the design team produces them itself. |
| DET, direction of the works | Weekly site supervision, validation of interim applications, handling of instructions and variations. |
| AOR, assistance at handover | Pre-handover inspections, clearing of defects, as-built file, final account. |
The core appointment runs from ESQ to AOR on new build, and from APS to AOR on refurbishment, where survey work replaces the concept stage. It cannot be broken up without legitimate cause.
How fees work under loi MOP
Remuneration under loi MOP carries particularities every architect and economist should know.
The fee at signature is provisional
Contrary to a widespread belief, the fee stated in the original appointment is provisional. Final remuneration is only settled at the end of APD, when the design team commits to the definitive forecast works cost.
If the project grows between the bid and APD, an enriched brief, larger areas, a higher specification, the final fee will exceed the original. If the project shrinks, the fee falls in proportion.
How penalties work
If the final works cost exceeds the definitive forecast cost settled at APD, beyond the contractual tolerance of usually ±10 %, and for reasons attributable to the design team, penalties apply to the construction stage fees.
| APD forecast cost | The design team's formal commitment at the end of APD. The basis on which any penalty is calculated. |
|---|---|
| Tolerance | Usually ±10 % between the APD forecast cost and the value of the signed contracts. |
| Penalties on the construction fees | Where an overrun is attributable to the design team, the construction stage fee can be reduced by a percentage set in the contract. |
| Causes not attributable to the design team | A change of brief by the client, material inflation, unforeseeable ground conditions, force majeure. These exonerate the design team. |
The private appointment: freedom and exposure
For a private client, a developer, a private individual, a company or an association, no regulation dictates the content of the appointment. The contract is freely negotiated, which is a freedom and also a source of risk where the scope is not carefully defined.
Partial appointments: advantages and traps
A developer may engage the architect for concept, outline design and the planning application only, with no site duties. The arrangement is common on off-plan schemes and has economic advantages, but it exposes the architect to a serious risk: being held liable for defects in work they never supervised.
ℹ The trap of a partial appointment with no site duties An architect who designs a project but does not supervise the works remains legally exposed under the ten-year and perfect completion warranties. If defects appear, the client can pursue the architect even though the architect was never on site. The remedy: set out very precisely in the appointment which stages are included and which are not, and add an explicit clause under which the client waives any recourse against the design team for the stages excluded.
What a well-drafted private appointment states
- ℹ Subject and parties: define the operation and the members of the design team in a few lines.
- ℹ Content by stage: state explicitly which stages are included and which are excluded.
- ℹ Fee by stage: set the lump sum for each stage, the grounds for revision, changes of brief and inflation, and what triggers each instalment.
- ℹ Approval of each stage: state the period within which the client must approve each submission, and what follows from silence, the stage being deemed approved once the period expires.
- ℹ Design periods: state how long each stage takes and from what point it runs, an instruction to proceed, receipt of a document from the client.
- ℹ Changes of brief: state that significant changes give rise to additional fees.
- ℹ Meetings and travel: on distant projects, state how many meetings the fee includes and how additional travel is reimbursed.
The two regimes side by side
| Criterion | Loi MOP, public client | Private appointment |
|---|---|---|
| Content of the appointment | Set by decree; the core appointment ESQ to AOR is mandatory | Freely negotiated; partial appointments possible |
| Fees | Provisional at signature, definitive at the end of APD | Lump sum or time-based by agreement |
| Commitment on cost | Formal at the end of APD, with penalties on overrun | Contractual, on whatever terms are agreed |
| Selecting the design team | Competition, open tender or adapted procedure according to value | By negotiation or invitation, at the client's choice |
| Revising fees | On a change of brief or a change in cost | On the terms of the contract, to be negotiated |
| Liquidated damages | Set by the standard conditions or the contract | By contractual agreement |
What Quostra takes on
Whether the project falls under loi MOP or under a private appointment, the cost deliverables expected of the design team are the same: estimates, quantities, specifications, pricing schedules, comparative tables. Quostra produces them, adapting to the contractual frame of each operation.
ℹ Quostra, the construction economist on demand Cost estimates, pricing schedules, developer appraisals, summary notes. The deliverables that take you days today, taken on by a dedicated economist. You have better things to do. Submit your project and an economist takes over. → quostra.com
Sources: Law no. 85-704 of 12 July 1985 · Decree no. 93-1268 of 29 November 1993 · Order of 21 December 1993 · Léonard Hamburger, Maître d'œuvre Bâtiment, 3rd ed., Eyrolles, 2016.