Contractual Workstream - Session 2-20220523

PAUL MCSOLLEY talks about a meeting he had with ANNA (digital director of Scott Brownrigg).

MARTIN thinks that, ‘in terms of upstream, contractual relationships and requirements, we can’t go legalistic to say these are the standard conditions you must work to. What we can do is use our knowledge and reflect it upline and align it to what the government’s act and publications are saying. The backbone of this should be the collaborative procurement document put out by the government in January. Martin shares on screen the document he’s talking about. He reads out something significant from the document :’Fire instruction safety issues can be exacerbated by poor procurement including poorly designed tender specifications, 11th hour contractual appointments, lack of appropriate engagement with the supply chain, contract forms….the basis if what we’ve been talking about’.

PAUL MCSOLLEY breaks down what that text means: ‘lack of appropriate engagement with the supply chain means we’re not basing it on product because we are arguing about the money, contract forms which prioritise…costs is the design and build’. He shows a document on screen with ‘the energy stuff’. He says to make a ‘one pager’ and that a lot of it is going to be in the procurement document that Martin spoke about.

GEORGE says that there is now a great deal of government standards/guidance that is not very well joined up. People need to be able to absorb whatever the contractual workstream produces - to break it down in small elements so people can confirm they have understood it.

GEORGE shows on screen a Bim4housing document giving guidance for the 12 principal asset types. The focus is on the many things that people have shared that they think is important for different purposes. last week, that info was taken and put into a format - a master list of all of the information requirements and then asked people to say ‘Who needs that information? who would you get that information from?’. The idea is if we know that then we can say e.g. who, principally, will tell us what the material of the facings are etc. There are 88 different properties (that’s probably too many for some items).

MARTIN says this is a quality assurance type model, he’s uncertain if it’s the right model to use for collaborative working…because you are talking about accountability and responsibility. GEORGE thinks he may be right, but it depends how it’s used - ‘we’re not trying to use it to transfer blame’. RICHARD says that it depends how you define it. MARTIN points out that the residents are missing from the parties involved. GEORGE says there is a lot of interest from the Tier1 group.

MARTIN says he wants to concentrate today on upstream, contractual stipulations, downstream to the supply chain (he’s not sure how to deal with that one), but if it’s correct upstream it reflects through downstream. He doesn’t sense a degree of urgency or understanding from the design community compared to the supply chain and other Tier1s. PAUL MCSOLLEY doesn’t expect architects to know about every detail of construction and materials, but he does expect the fire strategy people/engineers to be prescriptive about the standards used (low volume level/microphone cutting out).

RICHARD says that with the other groups the recording/high points/minutes documents is put on their section of the Bim4hosuing website. He asks them if it’s OK to do that with this contractual group. They are OK with that. He’s conscious that they may be wary of collusion issues, but with this that shouldn’t be the case if it’s made transparent.

PAUL MCSOLLEY shows a document on screen. Part 3, penetration seals. Looking at the rule sets, it’s all dependent on whether it’s combustible or non-combustible. Is the consultant choosing that material? No, because everyone’s going for best value for the employer and they’re changing pipe work material. (low volume level/microphone cutting out)…..how does a consultant know what’s being bought? They don’t know what the contractor is going to choose. They need to know if it’s Integrity, Information, Low leakage. If there are so many things to consider the consultants can’t work it out??? The issue with the service providers like dampers, ducts, walls is they don’t know what the other people have to do in their test. You put a wall to a damper, not a damper to a wall.

PAUL MCSOLLY considers that the the David Moseley document (as brought up earlier by MARTIN) is significant. he makes changes to the document displayed on screen. He writes as a heading ‘Fire Safety Case and Golden Thread overview’. He re-arranges other parts of the document.

PAUL MCSOLLEY: ‘We all know something’s wrong, but we don’t know how to fix it’. (low volume level/microphone cutting out). MARTIN says ‘the more we talk, the more I don’t know what the answer is’. He lists the numerous reason other parties can’t do it and thinks the answer must lie with themselves (the contractors). You can’t expect the designers to have the answer as they are not sufficiently engaged. The individual supply chain suppliers and installers are just too varied and diverse - it’s going to have to come back to us. PAUL agrees - ‘we need to get better, we have to stop passing the risk down the line. We’ve got to tell the client ‘if you want me to sign this contract, this is what we need to do to get to that point…are you willing to do that?’. If they say no you have to say ‘I can’t build your job’ - no one want to do it’.

MARTIN thinks it will lead to more pre-construction service agreements. We need to be offering keys to the Gateways. PAUL is going to send the document to MARTIN.

ADDENDUM

EMAILS

Iain McIlwee 

I think based on what I heard today I think we need to consider a standard clause to cover those delays.  Right now, we simply don't know so think we need a standard term to say in the event if a delay related to regulatory procedures yet to be fully described...

Marc

Really appreciate you taking the time to do this.

Makes sense. Aligns very much with my thoughts that that in many cases we need to get better at doing something we should already be doing.  Aside from the functional requirements of the BR, for me that is proving competence, reviewing and verifying design, robust change control, validating what we actually built is what we designed, being able to prove this every step of the way and providing this information in a form the end user can fulfill their duties going forward.

All of this could potentially fall under the ‘reasonably foreseeable’ category.

The tricky element will be whether design and delivery programmes need to account for a Gateway approval period (not to mention the BSR falling over in achieving a 12 week response period as the new regime gets up to speed). Could get very interesting in financially closing PCSA’s in the coming months!  …and so the journey goes on 🙂 

Iain

Hope well.  I was at an event today with the HSE (Martin was there too, so please feel free to contradict if you took a different view).  I took the opportunity to ask directly about timings of the Gateways and whether it would be staged i.e. Gateway 2 coming in first and then Gateway 3.  What I took from her response was that this is detail to be determined, but the expectation is that we know what the functional requirements of the Building Regs are, regardless of Gateways we can be held to account for these in the future through the Act so the rest is admin, basically we should be compliant now and better at proving it by October 23.  So I think you are safest to assume your initial assertion is correct, despite any clever argument a lawyer can make. 

MARC Bradfield

Apologies for not being in attendance yesterday. 

Something I would be interested on your opinions……

Previously I was of the view that no matter what the date for Gateway 2 and 3 to come into play, the transitional arrangements would limit carrying on ‘business as usual’ So even if you had commenced prior to the trigger date you would still be required to pass through Gateway 3 (pre-occupation) should completion fall beyond this point.

A recent article by Pinsent Masons (attached) indicates that is not likely to be the case.  They also are of the view that the trigger date is October 2023 i.e schemes commenced before that date continue under the ‘current regulatory regime’.

As a further point of interest in an interview at the start of May with Peter Baker, head of the new Building Safety Regulator he said “From October 2023, building owners will assume responsibility for fire and safety risks, and we, as the BSR, will be able to flex our muscles as a regulator in ensuring that building owners actually deliver their responsibilities. The building gateway system will follow, with the industry on notice to produce their certificate applications and safety cases, starting around April 2024.” – so differing from the Pinsent Masons view above and meaning it is difficult to figure out exactly what the trigger date is for the Gateways!

Iain

Apologies I will be tied up for this one too.  If it could be moved to early pm I’ll be there boots and all.

Martin

Please feel free to invite other interested parties