Quantity Surveying Agreement (Kenya)

A Quantity Surveying Agreement in Kenya is a legally binding contract between a client and a registered quantity surveyor (QS) under the Architects and Quantity Surveyors Act Cap. 525, by which the quantity surveyor is engaged to provide professional cost management and construction economics services for a building or civil engineering project. The Architects and Quantity Surveyors Act Cap. 525, administered through the Board of Registration of Architects and Quantity Surveyors (BORAQS), establishes the framework for the registration, regulation, and professional conduct of quantity surveyors practising in Kenya.

Quantity surveyors in Kenya must hold a valid certificate of registration issued by BORAQS under Section 14 of the Architects and Quantity Surveyors Act Cap. 525. Practising without registration is a criminal offence under Section 22 of the Act, which provides for fines and potential imprisonment. A Kenya Quantity Surveying Agreement must therefore identify the QS by their full name and BORAQS registration number to confirm compliance.

The Quantity Surveying Agreement in Kenya is distinct from an Architectural Services Agreement in that the QS focuses exclusively on cost, procurement, and financial management of the construction project, whereas the architect is responsible for design, aesthetics, and technical drawings. Both professionals are regulated by BORAQS under the same Act but under separate registration categories and separate professional standards.

The scope of services covered by a Kenya Quantity Surveying Agreement typically spans five stages aligned with the Kenya Government Works Project Stages: pre-contract services (feasibility cost estimates, elemental cost plans, bills of quantities preparation, and procurement advice); tender services (preparation and evaluation of tender documents, assessment of contractors' prices, and recommendation of the preferred tender); contract services (contract documentation, payment valuations, and interim payment certificates); and post-contract services (final account preparation, variation assessment, and settlement of contractual claims under the building contract).

The Standard Form of Agreement for Quantity Surveying Services published by the Architectural Association of Kenya (AAK) provides a recommended framework for fee calculation and scope of services. Fees are generally calculated as a percentage of the final contract sum, with the percentage scaling down as the project value increases, pursuant to the scale of professional charges published by AAK under the Architects and Quantity Surveyors Act Cap. 525.

Value Added Tax at the standard rate of 16% applies to professional fees paid to quantity surveyors registered under the Value Added Tax Act No. 35 of 2013, administered by the Kenya Revenue Authority (KRA). The Quantity Surveying Agreement should specify whether quoted fees are exclusive or inclusive of VAT and should reference the quantity surveyor's VAT registration number where applicable.

The Constitution of Kenya 2010 and the Public Procurement and Asset Disposal Act No. 33 of 2015 govern the engagement of quantity surveyors on government and public entity construction projects. A public client procuring QS services above the threshold prescribed by the Public Procurement Regulatory Authority (PPRA) must follow competitive tendering procedures under the Public Procurement and Asset Disposal Regulations 2020.

The legal framework governing the Quantity Surveying Agreement (Kenya) in Kenya draws on several key statutes and regulatory bodies. Under the Companies Act No. 17 of 2015, the Registrar of Companies at the Office of the Attorney General maintains the register of Kenyan companies. Section 3 of the Law of Contract Act (Cap. 23) governs contractual obligations. The Competition Authority of Kenya (CAK) enforces the Competition Act No. 12 of 2010. The Kenya Revenue Authority (KRA) administers corporate tax under the Income Tax Act (Cap. 470). The High Court of Kenya has unlimited original jurisdiction under Article 165 of the Constitution of Kenya 2010. Parties executing a Quantity Surveying Agreement (Kenya) in Kenya should confirm the document reflects current law, including any amendments enacted since the original drafting date. The Architects and Quantity Surveyors Act Cap. 525 sets the foundational requirements.

A Quantity Surveying Agreement in Kenya is required whenever a client engages a registered quantity surveyor to manage the cost and financial aspects of a construction project, from initial feasibility through to final account settlement.

A Quantity Surveying Agreement is needed when a private developer in Kenya commissions a new building — residential, commercial, or industrial — with a construction value above KES 5,000,000. At this scale, accurate cost planning, competitive tendering of the works, and independent certification of contractor payments become essential for financial control. Without a written agreement, the scope of services and the basis for calculating fees are disputed at the conclusion of the project.

A Quantity Surveying Agreement is required when a public body or county government procures construction services and must comply with the Public Procurement and Asset Disposal Act No. 33 of 2015. The PPRA requires a formal appointment of a QS with written terms of reference and a scope of services forming part of the procurement file.

A Quantity Surveying Agreement is needed when a financial institution — such as a commercial bank or a development finance institution — funds a construction project and requires independent cost monitoring as a condition of loan drawdown. The lender's QS appointment must be documented in a formal agreement governing reporting obligations, payment certification, and access to the construction site.

A Quantity Surveying Agreement is required when a contractor or project sponsor enters a dispute regarding the value of variations, delay costs, or final account settlement under a Joint Building Council (JBC) contract or a NEC Engineering and Construction Contract. A QS retained as an expert must have a formal appointment agreement to establish the professional relationship and the terms of the engagement.

A Quantity Surveying Agreement is needed when a housing cooperative registered under the Co-operative Societies Act Cap. 490 undertakes a member housing development project. The written agreement protects both the cooperative's members and the quantity surveyor by recording service deliverables, milestone payment terms, and the consequences of early termination.

Parties in Kenya should prepare a Quantity Surveying Agreement (Kenya) proactively rather than waiting for a dispute to arise. Courts interpret agreements based on the written terms rather than oral representations. Under the Companies Act No. 17 of 2015, the Registrar of Companies at the Office of the Attorney General maintains the register of Kenyan companies. Section 3 of the Law of Contract Act (Cap. 23) governs contractual obligations. The Competition Authority of Kenya (CAK) enforces the Competition Act No. 12 of 2010. The Kenya Revenue Authority (KRA) administers corporate tax under the Income Tax Act (Cap. 470). The High Court of Kenya has unlimited original jurisdiction under Article 165 of the Constitution of Kenya 2010. Where the transaction involves regulated activities, prior approval from the relevant authority may be required before execution.

A Kenya Quantity Surveying Agreement under the Architects and Quantity Surveyors Act Cap. 525 must contain the following essential elements to be professionally sound and legally enforceable.

Parties and Professional Registration: Full legal names and addresses of the client and the quantity surveyor; the QS's BORAQS registration number and certificate number; and, where the QS practises through a firm, the firm's business name and registration number with the Business Registration Service (BRS). Engagement of an unregistered QS exposes the client to professional liability risks and may invalidate the building permit application.

Project Description: A precise description of the project, including the site address or land reference number under the Land Registration Act No. 3 of 2012, the nature of the works (new construction, renovation, civil engineering, or infrastructure), the anticipated contract value, and the building permit reference from the county government under the Physical and Land Use Planning Act No. 13 of 2019.

Scope of Services: A detailed itemisation of the services the QS will provide, cross-referenced to the five standard stages: feasibility estimates; elemental cost plans; bills of quantities and tender documents; tender evaluation and reporting; and post-contract cost management including final account. Any services excluded from the standard scope — such as mechanical and electrical cost management or specialist subcontract procurement — must be expressly excluded.

Fee Basis and Payment Terms: The method of fee calculation — percentage of contract sum, lump sum, time charge, or a combination — and the applicable percentage scale from the AAK scale of professional charges under the Architects and Quantity Surveyors Act Cap. 525. The payment schedule (e.g., 20% on appointment, 40% on BoQ completion, 20% on tender award, 20% on final account) and VAT treatment at 16% under the Value Added Tax Act No. 35 of 2013.

Timelines and Deliverables: Agreed dates for each key deliverable — feasibility report, elemental cost plan, bill of quantities, tender documents, tender report, and final account. Provision for the impact of client-caused delays or scope changes on the QS's programme.

Variations and Additional Services: The procedure for instructing and valuing additional services beyond the agreed scope, including the hourly rate or agreed additional fee for specialist services such as insurance replacement cost assessments, expert witness services, or project monitoring for a financier.

Termination and Ownership of Documents: The circumstances in which either party may terminate the agreement, the notice required, and the fees payable on termination at each project stage. Ownership of cost plans, bills of quantities, and tender documents — typically retained by the client but subject to the QS's lien for unpaid fees.

Dispute Resolution: Reference to the Architectural Association of Kenya (AAK) professional conduct procedures, and election between arbitration under the Arbitration Act No. 4 of 1995 and litigation before the High Court of Kenya or the Environment and Land Court for land-related disputes.

The forms-legal.com Kenya Quantity Surveying Agreement template includes all mandatory professional appointment provisions aligned with BORAQS requirements and the AAK standard conditions of engagement under Cap. 525.

Additional compliance elements for a Quantity Surveying Agreement (Kenya) used in Kenya include: Under the Companies Act No. 17 of 2015, the Registrar of Companies at the Office of the Attorney General maintains the register of Kenyan companies. Section 3 of the Law of Contract Act (Cap. 23) governs contractual obligations. The Competition Authority of Kenya (CAK) enforces the Competition Act No. 12 of 2010. The Kenya Revenue Authority (KRA) administers corporate tax under the Income Tax Act (Cap. 470). The High Court of Kenya has unlimited original jurisdiction under Article 165 of the Constitution of Kenya 2010. Forms-legal.com provides this template as a starting point for Kenya-compliant documentation.