The construction industry is experiencing an increasing level of disputes related to design risk and the related statutory obligations under the Building Control Regulations (BCAR).
For a number of factors, the traditional capability and capacity of design teams is no longer what it was in the past and therefore both employers and contractors must be aware of this. The result of this is that contractors and specialists are increasingly being relied upon to take responsibility for the design of works items.
However, main contractors likely to be the assigned builder need to be very aware of the design risks that they are being asked to take responsibility for.
Particularly if they are unclear as to who is responsible for the design integration of different work items, which is traditionally primary design and the responsibility of the design team.
Article 9 of BCAR and section 5 of the Code of Practice, state that “where elements of the design have not been completed, these should be clearly set out with an undertaking that when complete, these too will be certified and submitted to the building control authority.”
Therefore any outstanding design is required to be listed within the commencement notice and as part of the design certifier’s certification.
This information should be available to the employer and his design team as part of their preparation for filing of the notice with the Building Control Management System (BCMS) in advance of starting the works on site.
The assigned builder should strongly consider engaging with the assigned certifier, project supervisor design stage and other members of the design team at tender stage to get an understanding of the issues involved and the level of design responsibility to be transferred under the contract, prior to uploading the undertaking by the builder.
They should request an opportunity to review the supporting document list prior to lodgement of the commencement notice – including the design certificate, the associated ancillary certificates, and the list of items yet to be designed.
When taking on design risk, the Assigned Builder should be aware of a number of factors related to the provision of statutory BCAR certificates and non-statutory ancillary certificates.
Under BCAR there are only four statutory certificates required to be submitted:
- The design certificate signed by the design certifier at commencement stage
- The form of undertaking signed by the assigned certifier at commencement stage
- The form of undertaking signed by the builder at commencement stage
- The certificate of compliance and completion signed by the builder and the assigned certifier at completion stage
While on most projects, there will likely be a range of ancillary certifiers, BCAR does not specify ancillary certificates, which must be provided to the design certifier and assigned certifier.
Section 3.5 (c) and (e) of the BCAR code of practice leaves the duty/right of determining the parties required to provide certification to the assigned certifier in conjunction with the builder.
It also provides for a meeting between the assigned certifier and the builder prior to commencement.
Therefore, the builder has a significant role to play in what ancillary certificates are required from both professional, designers and subcontractors and these are not simply imposed on them.
Furthermore, the assigned builder should be extremely vigilant when assessing requirements to provide ancillary certificates and, in the absence of a clear contractual obligation to do so, the certificate should not be provided.
If it is to be provided under the contract, care should be taken to ensure that it is accurate and true.
SD certificates of Compliance: Design
However, special attention needs to be drawn to SD certificates of Compliance: Design. The CIF, RIAI, ACEI, Engineers Ireland and the SCSI have agreed a standard set of industry Practice Notes and ancillary certificates to be used by subcontractors, specialist
contractors, and sub-sub-contractors.
The information below is taken from the CIF Practice Note: Design Risk and Building Control Regulations.
SD certificates of Compliance: Design, specifically relate to the commencement notice and its form certifies that the proposed design (for the elements the certifiers are responsible for) complies with building regulations.
This certificate is part of the commencement notice and is not something that should be sought or demanded by the design team from the assigned builder and their subcontractors during construction contract unless specifically agreed to in the contract.
SD ancillary certificates relate to the design of the works rather than as constructed works.
In Practice Note 1 as agreed between the CIF and professional bodies, SD ancillary certificates are required to be signed by competent persons that are design specialists/unregistered consultants (i.e., façade designer, fire systems designer, lift specialists, etc.) for their design at design stage and at completion stage.
The industry agreed Practice Note 2 sets out, that only in a situation where a specialist designer is appointed by a assigned builder to undertake design work only, then that party would sign an Ancillary Certificate of Compliance: Design (SD or SD as appropriate).
As detailed in the Practice Note 2, in all other situations the Assigned Builder or subcontractor is only required to provide a Cs or Css Ancillary Certificate.
The design representation made in the SD certificate goes much further than the warranty and representation made under the Cs/Css certificates outlined above.
To understand the different level of warranty and risk involved when providing SD certificates, we strongly recommend contractors assess the language used in the standard form of SD certificates, particularly clauses 4, 6, 7 and 8, which would not normally fall under the traditional services provided by an Assigned Builder and their subcontractors under a traditional Employer Designed Project.
A coercive culture
The CIF is hearing reports from our members that they are being coercively pressurised into signing these types of certificates outside of their responsibilities.
We strongly recommend that contractors resist signing SD certificates unless they apply as outlined in the above practice notes.
However, if an assigned builder/ subcontractor has contractually agreed to provide any form of ancillary certificate,
particularly SD ancillary certificates, outside of the industry agreed Practice Notes 1 and 2, they should satisfy themselves that they have indeed done the work they are certifying and can warrant what they are signing up to.
There are serious risks involved if an inappropriate ancillary certificate is issued by a assigned builder/subcontractor because it could be relied upon by others beyond just the architect.
The provision of SD ancillary certificates, under the industry agreed practice notes is limited to very specific circumstances involving only the assigned builder.
It is therefore critically important that by default the standard Cs and Css ancillary certificates are used in the appropriate circumstances and that the wording in the certificate conforms with what work has been done and avoids the potential risk of negligent misstatement.
The assigned builder should also understand what level of design responsibility they have for their subcontractors’ designs and be aware if they are providing ancillary certificates to the employer/building owner.
If these contain any negligent misstatement the contractor/assigned builder might have some liability.
Any obligation to provide ancillary certificates in respect of design elements should be notified to the assigned builder’s insurer or broker to ensure that PI cover in place extends to the issue of such certificates.
Employers and their design teams must understand that the inappropriate provision of ancillary certificates is prejudicial to their interests.
Particularly for professionals/designers, whose own liability will be adversely affected along the likely implications for their own professional indemnity insurance cover.
The CIF has developed a Practice Note to assist members to avoid getting into these types of disputes.
The CIF Practice Note: Design Risk and Building Control Regulations can be downloaded by members only from the CIF’s Contractors Resource Hub.