ref: macam-macam biro arsitek

kerap terjadi diskusi tentang bagaimana bentuk badan usaha praktik arsitek di indonesia yang tidak berbentuk perseroan terbatas (pt). disini saya kutipkan model yang diulas oleh National Council of Architectural Registration Boards (NCARB) keluaran tahun 2005-2006, sebuah badan federasi non-profit di amerika serikat yang mengurus sistem lisensi arsitek.

LEGISLATIVE GUIDELINES AND MODEL LAW
MODEL REGULATIONS

FIRM PRACTICE
A partnership (including a registered limited liability partnership), a limited liability company or a corporation should be admitted to practice architecture in a state if

(1) two-thirds (2/3) of the general partners (if a partnership), two-thirds (2/3) of the mangers (if a limited liability company), or two-thirds (2/3) of the directors (if a corporation) are registered under the laws of any state to practice architecture or engineering;

(2) one-third (1/3) of the general partners (if a partnership), one-third (1/3) of the managers (if a limited liability company), or one-third (1/3) of the directors (if a corporation) are registered under the laws of any state to practice architecture; and

(3) the person having the practice of architecture in his/her charge is himself/herself a general partner (if a partnership), or a manager (if a limited liability company), or a director (if a corporation) and is registered to practice architecture in that state. The board should be empowered to require by regulation any partnership, limited liability company, or corporation practicing architecture in that state to file information concerning its officers, directors, managers, beneficial owners, and other aspects of its business organization, upon such forms as the board prescribes.


9 Responses to “ref: macam-macam biro arsitek”

  1. 1 e

    While a majority of states now permit the practice of architecture in the conventional corporate and partner-ship forms, and in the newer limited liability company form, the restrictions placed on corporate practice and limited liability company practice (and to a lesser degree on partnership practice) are often onerous. Worse still, these restrictions are so varied among the several states as to require an architectural firm organized as a corporation or limited liability company to consult with legal counsel in all cases before accepting work in another state. The guidelines seek a reasonable, nationwide provision respecting firm practice.
    The requirements are that two-thirds of the directors or managers be registered to practice architecture or engineering under the laws of any state; that one-third of the directors or managers (in other words, at least one-half of the architect and engineer directors or managers) be registered to practice architecture under the laws of any state; and that the person having the practice of architecture in his/her charge be a director or manager, and that such person be registered to practice architecture in the state of the project. (In the case of a limited liability company in which management of its business is vested in the members, the requirement is intended to apply to the members.) This guideline does not require that all the directors or managers be architects; there may be engineers sitting on the board of directors. Moreover, up to one-third of the total number of directors or managers may be laymen. For example, most states require that corporations have a minimum of three directors. Accordingly, the small closely-held corporation, having only the minimum number of directors, may have a business advisor, accountant, or other person sitting on the board with two design professionals. Larger firms may wish to have a banker, lawyer, accountant, business advisor, or real estate consultant, or several of the foregoing, sitting on the board. The guideline allows this flexibility.
    The utility of a provision of the kind proposed by the guidelines is emphasized by the fact that present restrictions on firm practice have had the effect of promoting techniques for circumventing laws restricting firm practice which can be used equally by responsible and irresponsible firms. For example, it has become common for an architect associated with a corporate firm to take a contract in a restrictive state in his/her individual name, thus technically complying with the law although the work is being done by an out-of-state corporate entity. Under this practice, a construction company employing a single architect is as able to evade the restrictions as a reputable architectural firm whose entire board comprises architects. Strict enforcement to prevent such practices in order to ban the company not in control of design professionals proves impossible as a practical matter, because such enforcement would result in wholesale barring of responsible corporate architectural firms in many states. The type of rule set forth in Guideline V-A, in contrast, could be used successfully to bar entry to corporate or limited liability company firms not controlled by professionals while not forbidding practice by the vast majority of legitimate corporate or limited liability company firms that should be able to meet the requirements.
    There is no requirement concerning the ownership of a firm (e.g., the stockholders of a corporation). This matter was carefully considered in drafting the guideline. There are a number of good reasons for not requiring that ownership be exclusively in the hands of design professionals. These range from a frequent situation in the small corporation where the principal of the firm wishes to bequeath his/her stock to his/her spouse or children, to the possibility of larger firms seeking public ownership in order to capitalize adequately their practice. Since there are strong reasons for not restricting owner-ship, these must be weighed in the balance against the reasons for imposing restrictions.
    The principal, if not sole, argument for restricting ownership is that it ensures ultimate control of the firm in the hands of design professionals. But this argument is illusory. For example, a corporation, by statute, is managed by its board of directors. The role of stockholders is limited to electing and removing the directors in whom management is vested. While it is therefore true that laymen owning a majority of the shares may change the persons who constitute the board of directors, the laymen can never substitute laymen on the board of directors for professionals. Thus, the argument is reduced to the proposition that the laymen can find compliant architects more likely to do their bidding on the board of directors than the stubborn architect whom they discharged, a situation analogous to that currently exist-ing between the owner and the architect. The architect has control over the design of a project only for so long as the owner keeps him/her under contract. If the owner is displeased with the architect or if the owner wants the architect to take action which the architect feels is unprofessional, the owner can discharge the architect and seek a more compliant architect to do his/her bidding.
    Since much was to be gained by leaving the question of ownership to the discretion of the firm practitioners and very little was to be gained by imposing restrictions, it was decided that this guideline should confine itself to the composition of the firm’s management.
    It should be noted that the guidelines require merely that the design professionals be registered in any state and not necessarily in the state of the practice. One of the great problems confronting large firms practicing architecture is that several of the states require all directors (in the case of a corporation), all managers (in the case of a limited liability company [or all of the members in the case of a limited liability company in which management of its business is vested in the members]), and all partners (in the case of a partner-ship) to be registered in that state. Expense and unnecessary processing to achieve that goal is out of proportion to any useful purpose it serves.
    The real protection for the public is that the person who has the project in his/her charge is a person who has qualified to practice architecture in the state. This guideline makes certain that that will always be the case. In order to make clear that the architect is to be a principal of the firm, this guideline requires that he/she also be a director (if a corporation), a manager (if a limited liability company), or a general partner (if a partnership). (In the case of a limited liability company in which management of its business is vested in the members, the guideline is intended to require that he/she also be a member.) In the case of a corporation, it should be emphasized that the officers are mere employees of the corporation subject at all times to the direction of the board of directors. Thus, those present state laws requiring the architect practicing through the corporate firm to be an officer of the corporation too often find themselves dealing with a third vice president, who, except for that title, holds no position of importance in the corporate firm.
    It is not the intent that a firm be registered, but only that a firm, complying with this guideline, may be a vehicle by which a registered architect may legally practice architecture.
    The guidelines suggest that a state board may wish to have a special filing for firm practice so that the state will know at all times who the officers, directors, managers, and beneficial owners of the firm are. Many states have adopted such a practice.

  2. 2 e

    FIRM PRACTICE

    A firm otherwise qualified to practice in a state should be permitted to practice in that state under a name which does not include the names of every director (if a corporation), every manager (if a limited liability company), or every general partner (if a partnership) registered in any state to practice architecture, provided the firm complies with reasonable regulations of the state board requiring the firm to file the names, addresses, and other pertinent information concerning the directors (if a corporation), managers (if a limited liability company), or general partners (if a partnership) of the firm.

    A handful of states still proscribe use of any firm name other than a name which includes the surnames of principals. This has yielded a curious anomaly. These names and those firms gained considerable reputations; but when they went into a state that proscribed generic names, they discarded the name under which they have developed a reputation and practiced as John C. Smith or Peter Jones. In such circumstances, the use of the surname is more misleading than the use of the assumed name under which the firm has developed its practice.
    Again, the guidelines encourage the local state board to require the filing of a statement by firms operating under an assumed name so that the real names of principals will at all times be available.

  3. 3 e

    Union of International Architects (UIA – asosiasi profesi arsitek yang beranggotakan negara-negara di dunia) telah merekomendasikan pedoman untuk kebijakan tentang bentuk-bentuk praktik arsitek (Februari 2005). Ikatan Arsitek Indonesia (IAI) juga menjadi anggota UIA.

    Kesepakatan kebijakan tentang bentuk-bentuk praktik itu sendiri berbunyi:
    That architects should be allowed to practice in any form legally acceptable in the country in which the service is offered, but always subject to prevailing ethical and conduct requirements. The UIA, as it deems necessary, will develop and modify its policies and standards to take account of alternative forms of practice and varied local conditions where these alternatives are thought to extend the positive and creative role of architectural profession in the interests of society.

    Selengkapnya tentang pedoman tersebut saya letakkan disini untuk kita pelajari bersama.

    INTRODUCTION

    In most jurisdictions, architects have been practicing within the basic forms of practice evolved over the years, e.g. Sole-Proprietorship and Partnership. Some jurisdictions have either regulatory bodies or their respective professional institutes that outline in detail the legal parameters and conditions under which architects can practice. A majority of member sections responding to the UIA Professional Practice Commission questionnaire indicated that their states permitted the practice of architecture in partnership and conventional corporate forms. The restrictions placed on corporate practice and the newer limited liability companies are often onerous.The great variety of these restrictions suggests that a guideline is needed to define forms of practice which, in the public interest, enable the maintenance of acceptable standards of architectural practice.

    This set of guidelines defines practices by the forms of legal entity. Issues relating to forms of practices defined by the scope of services it offers is addressed in the Recommended Guideline on Scope of Practice.

    The great variety of legal forms together with the growing trend of multi-disciplinary practices brings about the issue of ownership, control of the practice and liability. The UIA has an interest in ensuring that the offering of architectural services in the various forms of practice, regardless of ownership, is under the effective control of architects and that they are required to conform to and maintain the same professional standards of service, work and conduct as individual architects. In order to have ethical and conduct requirements prevail, it is essential to ensure that the public’s interests, as well as the integrity of architectural services performed, are maintained.

    The UIA also recognizes a need to promote to the public as well as government administrators the awareness of such forms of practice by architects in their own jurisdictions. Furthermore, the UIA also recognizes that such forms of practice should take into consideration the local environmental, social and cultural factors, and ethical and legal standards prevailing in each jurisdiction.

    The Accord acknowledges that there are many jurisdictions that may not have the administrative and legal means to promote or regulate the various forms of practice, due to differing standards, practices and conditions that reflect the diversity of cultures of such jurisdiction. While the UIA advocates proper regulation of architectural practices by a process of registration, the Accord guideline represents the first step in an effort by representatives of the international community of architects to reach consensus on the acceptable forms of practice in which architects can operate and perform their services without infringing on the legal boundaries. As such, the Guideline is intended to define forms and structure of practice which ensure the maintenance of appropriate standards of architectural practice.

    Forms of Practice can be categorized by several approaches. Essentially, we can define Forms of Practice by the following approaches:
    – Ownership
    – Control of practice
    – Liability

    The following list categorizes several major Forms of Practice prevailing at the present moment. Less common forms of practice are classified as “Specialized Forms of Practice” and non-profit making organizations are classified as “Other Forms of Practice”

    A. Basic Major Forms of Practice:
    A1. Sole Proprietorship
    A2. Unlimited Partnership
    A3. Unlimited Company
    A4. Limited Partnership
    A5. Limited Company

    B. Specialized Forms of Practice:
    B1. Group Practice
    B2. Collaborative Practice
    B3. Consortium
    B4. Community Practice
    B5. University Based Project Office
    B6. Subsidiaries / Affiliates of Corporation
    B7. Multi-Disciplinary Practice

    C. Other Forms of Practice:
    C1. Government
    C2. Quasi-governmental bodies / Institutional Bodies

  4. 4 e

    Current Form of Practice

    The UIA Guideline recommends that local jurisdictions should strive to promote, as well as obtain their respective regulatory body’s endorsement of, the principles described below. Further that their local statutes should incorporate the following principles for the various forms of practice. The following are descriptions for recommended principles for various form of practice.

    A. Basic Forms of Practice

    A1. Sole Proprietorship
    Practices owned solely by a registered architect with sole responsibility for the standard of professional services and financial performance of the practice.

    A2. Unlimited Partnership
    Practices formed should be a group of registered architects who are jointly responsible and liable for the service provided by the practice. The partners share in agreed proportions profits and losses according to the amount of work and expertise they each apply to the business, and the amount of money they have each invested. There is personal and unrestricted liability of each partner for the debts and obligations of the firm, and there is also the right of each partner to participate in the management of the firm and act as an agent of it in entering into legal transactions on its behalf.

    A3. Unlimited Company
    A legal entity formed by incorporation in the local jurisdiction, without specifying any limit of liability of its members. The following guidelines shall prevail:
    – The article of association of the unlimited corporation/company provides that no person other than a registered architect or an associated professional shall be a director of the corporation/company.
    – That the articles of association provide that all shareholders in the corporation/company shall be architects.
    – That the business of the corporation/company shall be under the control and management of a director of the corporation/company who is a registered architect, and is a member or a registered owner of at least 1 share of the corporation/company.

    A4. Limited Company
    A legal entity formed by incorporation in the local jurisdiction, and may be either having the liability of its members limited by the memorandum to the amount, if any, unpaid on the shares respectively held by them (company limited by shares) or having the liability of its members limited by the memorandum to such amount that the members may respectively thereby undertake to contribute to the assets of the company in the event of its being wound up (a company limited by guarantee). This includes also corporations where stocks are offered by the general public and listed on the stock exchange. The following guidelines shall prevail:
    – That a certain amount of authorized capital of the corporation/company amount, determined appropriately by the local jurisdiction, is paid up.
    – That the articles of association of the corporation/company provide that the chairman and the majority of the directors of the corporation/company shall be registered architects or associated professionals and ordinarily resident of the local jurisdiction.
    – That the business of the corporation/company shall be under the control and the management of a director of the corporation/company who is a registered architect ordinarily resident in the local jurisdiction.

    A5. Limited Partnership
    Partnerships consisting of certain members who are liable for the firm’s debts only to the extent of the capital contributed or agree to be contributed, but such members are prohibited from taking part in the management of the firm. The requirement is the same as Partnership, except there should not be any restriction on the professional background of the limited partners.
    Notwithstanding the above provision, the following conditions shall apply regardless of the form mentioned above:
    – An unlimited/limited corporation/company shall have the same rights and shall be subject to the same obligations in respect of the fiduciary, confidential and ethical relationships with each client of the corporation/company that exist at law between a registered architect and his/her client.
    – A registered architect who has the control and management of the business of a unlimited / limited corporation/company or a licensed partnership shall be subject to the same standards of professional conduct and competence in respect of such services as if he / she was personally supplying the architectural services.

    B. Specialized Forms of Practice

    B1. Group Practice
    – Any group practice may consist of any combination of the basic forms of practice stated in (A).
    – In any relation among a group practice, an agreement covering all aspects of legal issues, auditing, work apportionment, conduct, sharing of employees, etc. shall be prepared and agreed under the terms and conditions prevailing in the local jurisdiction.
    – Any entity in a group practice shall also abide by the respective laws, code of conduct and other prevailing conditions as set out by the regulatory bodies of the local jurisdiction.

    B2. Collaborative Practice
    – Any collaborative practice may consist of any combination of the basic forms of practice as stated in (A) except that the entities involved shall state clearly their respective job description and responsibilities at the onset.
    – All other legal relationships as well as the rules and conditions governing the entities shall remain unchanged as for the group practice.

    B3. Consortiums
    Two or more practices acting together for a single project or group of projects. Consortia can be architectural only or multi-disciplinary. A Consortium can be constituted as a partnership of companies.
    – Consortiums may consist of any combination of the basic forms of practice as stated in (A) for the purpose of providing architectural services. Multi-disciplinary consortiums may consist of other allied disciplines, e.g. engineering consultants, cost consultants, specialized services.
    – Likewise, the relationships and responsibilities amongst the entities shall be defined and agreed. The architectural entity shall ensure that all responsibilities, liabilities, work appointment, conduct, etc. with the other disciplines be clearly agreed and defined under the prevailing conditions in the local jurisdiction. Appropriate professional indemnity insurance should be secured for the particular circumstances of the consortium.
    – The entities of a consortium shall also abide by the prevailing conditions and other legal aspects of government in the local jurisdiction where a consortium is formed.

    B4. Community Practice
    Refers to practices working directly with the community. It may take any form of practice as mentioned in (A), and the objectives may not necessarily be profit making, although it may function similarly to any other forms of business association. The owner of the practice is normally the community itself with the management function conducted by registered architects and associated professionals. Sometimes the registered architects will have ownership as well. It is suggested that the professional liability should rest with the registered architects, whereas commercial risk should rest with the practice, which includes a fair share by the community.

    B5. University Based Project Office
    Refers to a unit within a university, which offers professional advice in specialty areas such as energy conservation…etc, which also give students hands on experience. The form and ownership shall follow the guidelines set by the local jurisdiction as well as the university within which it is set up. The ownership should be held jointly by the University and registered architects ordinarily resident in the local jurisdiction. Professional liability should be the responsibility of the registered architects, while commercial liability should rest with the University, or as agreed between the University and the registered architects. Due to the relatively specialized nature, educational benefits, and in many instances profit making not being the sole objective, it is appropriate for such practices to define their scope of services in more specific terms and secure appropriate professional indemnity against commercial risks.

    B6. Subsidiaries/Affiliates of Corporation
    A company, which is solely owned by another corporation.
    – A subsidiary/affiliate practice may consist of any form, or combination of the basic forms of practice as stated in (A) for the purpose of providing architectural services.
    – The relationships and responsibilities of the practice in relation to the Holding Corporation, as well as among all other affiliates within the same Holding Corporation shall be defined and agreed. The architectural subsidiary/affiliate shall ensure that all responsibilities, liabilities, work appointment, conduct, etc. with the Holding Corporation and other affiliates are clearly agreed and defined under those prevailing conditions in the local jurisdiction. Appropriate professional indemnity insurance should be secured for the particular circumstances of the architectural entity.
    – The entities of subsidiaries/affiliates shall also abide by the prevailing conditions and other legal aspects of government in the local jurisdiction where a consortium is formed.

    B7. Multi-disciplinary Practice
    A practice which offers architectural as well as other building related services and may not necessarily be under the management of registered architects.
    – A multi-disciplinary practice may consist of any form, or combination of the basic forms of practice as stated in (A) for the purpose of providing architectural or other building related services.
    – The offer of the architectural services in a multi-disciplinary practice shall be under the effective control of a registered architect ordinarily resident in the local jurisdiction.
    – The practice shall also abide by the prevailing conditions and other legal aspects of government in the local jurisdiction where the multi-disciplinary practice is formed.

    C. Other Forms of Practice

    C1. Government
    Organizations within the government rendering architectural services using public funding for the use of the general public. This will include organizations such as the public works department, local authorities, or the like.

    C2. Quasi-Government Bodies
    Institutions formed by the government with the state as the sole or majority shareholder. Where architects are employed in the above, and are required to provide architectural services, the prevailing conditions governing code of conduct, etc, as set out by the regulatory body of the local jurisdiction shall be abided by except that any liability shall be undertaken by the respective governmental body.
    In the event where architects within governmental bodies are required to perform and provide architectural services as a separate entity, the prevailing laws and conditions governing the various forms of practice shall be abided by accordingly.

  5. 5 e

    Recommended Forms of Practice

    Architects are a regulated profession and thus are given the right by the public through legislation that in essence says that architects as professionals are trained and entrusted by the public to provide services to the public. The recommended forms of practice should be defined by extension of the individual’s professionalism. The structure of the recommended forms of practice is to maintain the same character as that of an individual architect. There are basic conditions for entities to maintain the character of individual practice and to avoid a conflict of interest, and the possibility that architects’ autonomy may be impaired. Each condition of the following criteria in Table 1 is the recommended standard to maintain such character:
    – Ownership
    – Composition of board of directors
    – The most responsible person in charge of management
    – The most responsible person in charge of practice
    – A person who is responsible for civil matters
    – A person who is responsible for criminal matters
    – A person who is responsible for administrative matters
    – Other things related to conflict of interest and the possibility that architects’ autonomy is impaired.

    Although architects are allowed to practice in any form legally acceptable in the country in which their services are offered, these conditions should be disclosed to clients in any case other than the forms represented in Table 1.

    Table 1
    Recommended Standards of “Forms of Practice”

    Sole Proprietorship
    Ownership: Registered Architect
    Composition of Board of Directors: Reg. Architect
    Responsibility for Management: Reg. Architect
    Responsibility for Practice: Reg. Architect
    Responsible for Criminal Matters: Reg. Architect
    Responsible for Civil Matters: Reg. Architect
    Responsible for Administrative Matters: Reg. Architect

    Unlimited Partnership
    Ownership: Reg. Architect as Unlimited Partner
    Composition of Board of Directors: Reg. Architect as Unlimited Partner
    Responsibility for Management: Reg. Architect as Unlimited Partner
    Responsibility for Practice: Reg. Architect as Unlimited Partner
    Responsible for Criminal Matters: Reg. Architect as Unlimited Partner
    Responsible for Civil Matters: All Unlimited Partner
    Responsible for Administrative Matters: Reg. Architect as Unlimited Partner

    Unlimited Company
    Ownership: Reg. Architect as Unlimited Company Member
    Composition of Board of Directors: Reg. Architect as Unlimited Company Member
    Responsibility for Management: Reg. Architect as Unlimited Company Member
    Responsibility for Practice: Reg. Architect as Unlimited Company Member
    Responsible for Criminal Matters: Reg. Architect as Unlimited Company Member
    Responsible for Civil Matters: All Unlimited Company Member
    Responsible for Administrative Matters: Reg. Architect as Unlimited Company Member

    Limited Corporation/Limited Partnership/Limited Company
    Ownership: The majority of shares are desired to be owned by Reg. Architects
    Composition of Board of Directors: The majority of the board of directors is desired to be Reg. Architects
    Responsibility for Management: Reg. Architect
    Responsibility for Practice: Reg. Architect
    Responsible for Criminal Matters: The Reg. Architect in charge of the project – The most responsible person in charge of practice – The most responsible person in charge of management/Corporation.
    Responsible for Civil Matters: The Reg. Architect in charge of the project – The most responsible person in charge of Practice – The most responsible person in charge of management/corporation.
    Responsible for Administrative Matters: The Reg. architect in charge of the project – The most responsible person in charge of Practice – The most responsible person in charge of management/Corporation.

  6. 6 Adi Susanto

    Salam kenal. Duh bahasa inggris semua… Kalau di Indonesia gimana? Kan negara kita ini agak ‘anomali’..😛


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