CROSS Safety Report
The selection of principal designer and principal contractor
Overview
A reporter is concerned that some organisations that they would normally expect to be appointed as principal designer or principal contractor under the Construction (Design and Management) Regulations 2015 are avoiding such appointments.
Key Learning Outcomes
For all construction professionals:
- HSE publication L153 ‘Managing health and safety in construction’ provides guidance on CDM 2015
- Consider the full scope of an organisation’s insurance before appointing to a project
- All practitioners have liabilities in criminal law regardless of appointments to principal designer and principal contractor roles or otherwise
- Consider the advantages of appointing the parties most competent to lead the design and construction as principal designer and principal contractor
- Be aware of the potential for development of principal designer and principal contractor roles under supplementary legislation to the Building Safety Act 2022
Full Report
Find out more about the Full Report
The Full Report below has been submitted to CROSS and describes the reporter’s experience. The text has been edited for clarity and to ensure anonymity and confidentiality by removing any identifiable details. If you would like to know more about our secure reporting process or submit a report yourself, please visit the reporting to CROSS-UK page.
A reporter has come across, on several occasions, a concerning issue in respect of the appointment of principal designers (PD) and principal contractors (PC) as required under the Construction (Design and Management) Regulations 2015 (CDM 2015).
In one case a client was procuring fixed plant. The scope of the works was to supply and install replacement plant within an operational facility. The client was intending to procure this plant from their long-term preferred supplier who had supplied similar plant and who inspected and maintained the client’s existing plant. There was also to be a small number of other parties and contractors involved in the works. The reporter considered that the preferred supplier was the best organisation to act as both PD and PC as they were specifying their own products and understood what needed to be done to isolate existing equipment during removal and replacement. However, the client’s preferred supplier of the proposed equipment advised that they could not act as either PD or PC as they did not have insurance to do so.
The reporter goes on to say that the problem with competent organisations stating that they can't (or won't) act as PD and/or PC means that the client may then need to appoint third parties who would otherwise not be engaged in either the design or the construction to take on the roles. The reporter says such third parties, who have little control over the design or construction, end up being appointed to PD and PC roles and just undertaking ‘box ticking approaches’. The reporter says they have seen this situation arise in several sectors and also with design and build contractors who will not accept the PD role.
Third parties may end up being appointed to principal designer and principal contractor roles and just undertaking ‘box ticking approaches’
The reporter contends that there are at least two drivers leading to this situation:
- A perception that complying with CDM 2015 is ‘difficult’ and needs additional specialist CDM competency, rather than just professional and sector competency.
- A perception of attracting risks and liabilities by taking on the role of PD or PC.
The reporter goes on to say that in some cases the appointment criteria in Regulation 5 of CDM 2015 are in their experience not well applied by clients. The regulation states:
'Where there is more than one contractor, or if it is reasonably foreseeable that more than one contractor will be working on a project at any time, the client must appoint in writing— (a) a designer with control over the pre-construction phase as principal designer; and (b) a contractor as principal contractor.'
The reporter’s experience is that some clients do not acknowledge or interpret the ‘with control over the pre-construction phase’ requirement, potentially because they are not aware of its existence. The reporter considers that the HSE’s guidance in the publication L153 ‘Managing health and safety in construction’ could make a stronger reference to the ‘with control’ requirement.
Submit a report
Your report will make a difference. It will help to create positive change and improve safety.
Our secure and confidential safety reporting system gives professionals the opportunity to share their experiences to help others.
Feedback
The experience described in this paper is not uncommon, in my experience, and the discussion around it here is helpful.
The insurance argument is rarely apposite, however, the insurer will want to understand the risk, and therefore open and honest conversation between the insured and insurer should be encouraged.
The point about control is fundamental, and as identified oft forgotten (or ignored) to the detriment of the project.
What is worthy of further discussion is the concern, more among potential PDs than PCs, as to how they will competently deal with specialist aspects of a project, or aspects outside their expertise, where they may have valid concerns over attracting liability over which they have limited control. Engaging appropriate specialists to provide support should not be dismissed, so long as the PD (or PC) manages, monitors and controls the relevant process (design or construction).
The problems of the CDM 2015 'Principal Designer' role arise from the fact that under the Regulations (a) the Principal Designer must be appointed by the Client, (b) a project can have only a single Principal Designer and (c) the Principal Designer is responsible for the design of both permanent and temporary works. Problems arising from these requirements were identified and discussed in my paper 'Surviving CDM 2015' in The Structural Engineer in June 2016. Logically, on a Design and Build contract only the Main Contractor can fulfil the role of PD as defined by the Regulations, as they are appointed by the Client and have overall responsibility for both permanent and temporary works design. However, although this is a clear legal requirement, D&B contractors often try to duck the responsibility and pass it on to others. In other types of contracts, as no single party has control over the design of both permanent and temporary works, it is not so obvious who can be PD.
The problems described by the reporter are commonplace, but they can only be solved by changing the Regulations. Unfortunately, the new Building Act extends the application of the CDM 2015 roles into other areas, so it is likely to create new problems.
Expert Panel Comments
Expert Panels comment on the reports we receive. They use their experience to help you understand what can be learned from the reports. If you would like to know more, please visit the CROSS-UK Expert Panels page.
The reporter raises a significant issue. Feedback from industry appears to show that a wide spectrum of practitioners is appointed to principal designer (PD) roles. At one extreme, some practitioners believe that the regulations intend that a lead designer who can ‘control the design work’ should be appointed as the PD, whilst alternatively at the other extreme, some believe a party can be appointed to the PD role who would otherwise not be actively involved in ‘design’ of the project – perhaps only contributing with a remit to ensure the CDM regulations are followed. Between these two extremes, designers or other parties who contribute significantly, or only marginally, to the design are also appointed. This spectrum of practitioners appointed to the PD role appears to show that this aspect of the regulations is interpreted widely, by particular clients and their appointees.
Some practitioners advocate very firmly that only the project’s leading designers should be appointed as PD, and that third parties and other advisers, should not be appointed as PD. Such practitioners may believe that third parties cannot control the design process and hence influence how safety is addressed during all stages of design. Clearly however, some practitioners will not share this view.
Similar arguments concerning the ability of third parties to control construction processes would be made by some practitioners when considering the appointment of principal contractors.
The general duty of the PD is to plan, manage, monitor and coordinate the design process to ensure that risks during construction can be eliminated, or at least controlled, as far as reasonably practicable, and the general duty of the PC is to plan, manage, monitor and coordinate the construction phase. Therefore, as advocated by the reporter, a specialist supplier responsible for the installation could be ideally placed to fulfil both roles.
Turning to insurance, in examples such as put forward by the reporter, if a supplier does not have insurance cover for the PD or PC role, some practitioners would ask ‘why’. Is it an exclusion because there is reasonable doubt over the supplier’s ability to carry out these roles? Has the supplier procured insurance cover that may also exclude other matters a client might reasonably expect to be included? It could be that an assessment of the circumstances concludes it is more appropriate to appoint other parties to the PD and PC roles.
Any tendency to avoid PD and PC appointments is perhaps not unsurprising where risk averse attitudes prevail. However, all practitioners have liabilities in criminal law under the Health and Safety at Work etc. Act 1974, the Construction (Design and Management) Regulations 2015 and other legislation which exists, regardless of appointments to PD and PC roles or otherwise. Some practitioners will believe it may be better to take an appointment so that they have a fair degree of control in managing risks and driving and recording the behaviours of others. Many practitioners will consider that it would be in best interest of the project for the parties most competent to lead the design and construction to be appointed as PD and PC and any legal or commercial arrangement that deters from that is not at all helpful.
all practitioners have liabilities in criminal law regardless of appointments to principal designer and principal contractor roles or otherwise
Reforms to duty holder responsibilities under supplementary legislation to the Building Safety Act 2022 may add more clarity as to who could be appointed to PD and PC roles. It would seem that further guidance is required and would be helpful to encourage those most able to manage the risks to be responsible for them.