If you are procuring a construction project under a Design and Build contract, you will need an Employer's Agent. It is a role that is often misunderstood — and one that is critical to protecting your interests throughout the project.

Here is a clear explanation of what an Employer's Agent does, how the role differs from a Contract Administrator, and when you need one.

Design and Build: A Quick Recap

Under a traditional building contract, the client appoints a designer (usually an architect) to produce a complete design, and then appoints a contractor to build it. The design and construction responsibilities are separate.

Under a Design and Build (D&B) contract, the contractor takes responsibility for both. The client provides an Employer's Requirements document — setting out what they want the building to achieve — and the contractor responds with Contractor's Proposals, taking on the design risk as well as the construction risk.

D&B contracts are popular because they offer a single point of responsibility and greater cost certainty. The contractor cannot claim additional payment because the design has changed — they own the design. But this simplicity comes with a trade-off: the client has less control over the design process, and quality can suffer if the Employer's Requirements are not sufficiently detailed.

What Does an Employer's Agent Do?

Under a JCT Design and Build contract, the Employer's Agent (EA) acts as the client's representative throughout the project. The role is defined by the contract and includes:

Administering the contract. The EA issues instructions, approves contractor's design submissions, certifies payments, and manages the contractual relationship on the client's behalf. This is broadly equivalent to the Contract Administrator role under a traditional contract.

Reviewing design submissions. The contractor is responsible for the design, but the EA reviews their submissions against the Employer's Requirements to ensure compliance. This is a critical function — it is the client's primary mechanism for maintaining design quality under a D&B contract.

Managing variations. Any changes to the Employer's Requirements after the contract is signed are instructed by the EA and valued as variations. The EA should assess whether proposed variations represent value for money and challenge contractor pricing where appropriate.

Certifying payments. The EA certifies interim payments at regular intervals throughout the build, based on the value of work properly executed. They also manage the release of retention and certify the final account.

Issuing Practical Completion. The EA inspects the works and issues the Practical Completion certificate when the building meets the requirements of the contract. This triggers the release of half the retention and starts the defects liability period.

Managing the defects liability period. The EA notifies the contractor of defects during the defects liability period and ensures they are rectified before the Final Certificate is issued.

How Is an Employer's Agent Different From a Contract Administrator?

The roles are similar in many respects — both administer the contract on behalf of the client — but there are important differences.

Under a traditional contract, the Contract Administrator acts impartially between the client and the contractor. They are not the client's advocate; they are the administrator of the contract.

Under a D&B contract, the Employer's Agent acts as the client's representative. They are explicitly on the client's side. This distinction matters in practice: the EA's primary obligation is to protect the client's interests, not to act as an independent adjudicator between the parties.

The other key difference is the design review function. Under a traditional contract, the design is complete before the contractor starts, so there is no ongoing design review. Under D&B, the contractor develops the design during the construction phase, and the EA's review of those submissions is the client's main protection against design quality slipping below the standard set in the Employer's Requirements.

When Do You Need an Employer's Agent?

You need an Employer's Agent whenever you are procuring works under a JCT Design and Build contract — or any other D&B form. Without one, you are effectively administering the contract yourself, which requires both the time and the technical expertise to do so effectively.

D&B contracts are commonly used on:

• Residential developments — particularly where the developer wants cost certainty and a single point of responsibility
• Commercial fit-outs — where the landlord's base build is complete and the tenant is fitting out to their own specification
• New build commercial schemes — offices, industrial units, retail
• Care homes and specialist accommodation — where the operator has detailed functional requirements but wants the contractor to take design risk

What Makes a Good Employer's Agent?

The quality of the EA appointment can make a significant difference to the outcome of a D&B project. Look for:

Commercial rigour. The EA needs to be able to assess contractor pricing critically — challenging inflated variation claims and ensuring that the final account reflects the work actually carried out.

Design literacy. The EA must be able to review contractor design submissions meaningfully. This requires an understanding of the design intent and the ability to identify where submissions fall short of the Employer's Requirements.

Contractual knowledge. D&B contracts are complex documents. The EA needs to understand the contractual mechanisms — extensions of time, loss and expense, practical completion — and apply them correctly.

Independence. The EA should have no financial relationship with the contractor. Their only interest is the client's.

At Godfrey & Godfrey, we act as Employer's Agent on residential and commercial D&B projects across London and the South East. If you are planning a project under a Design and Build contract and would like to discuss the EA role, we would welcome a conversation.