The way construction projects and the associated design work is procured has changed over recent years. Major public-sector clients have found the benefits of Framework Agreements, which allows the shortening of procurement timescales and can also allow a more selective choice in consultants and contractors to be made, whilst many private sector clients are attracted by the efficiencies of a “one -stop shop” multi discipline design and project management appointments through a single contract.
Faithful + Gould has seen a significant increase in multi discipline appointments over the last 5 - 6 years. It is important in such scenarios that we consider the legal requirements of the Construction (Design and Management) Regulations 2015 (CDM2015), alongside the desires of our clients and the proposed contractual arrangements. It is a fundamental requirement of CDM2015 that the Client must appoint the duty holders of Principal Designer and Principal Contractor (when a project will involve more than one contractor), thus there needs to be a contract in place between the client and the relevant CDM duty holder.
How it should be
What does this mean in practice? Usually the appointment of the principal contractor is a separate direct appointment by the client, so nothing untoward here, however on the design and project management front, if one organisation is appointed through a single contract to provide design/project management services (including the Principal Designer role), then that organisation is the legal duty holder and cannot subcontract that role. They can obviously, engage a subconsultant to provide advice and to deliver the role, however they remain legally responsible for the duties and are and should be, the named Principal Designer.
We have also seen design practices, who are appointed as the Principal Designer, subsequently appointing a CDM/H&S specialist subconsultant as “principal designer” thinking that they are passing the legalities down the line, and not realising that they remain the legal duty holder.
Design & Build
A similar situation can arise in design and build projects, if the contractor is also appointed principal designer. Any engagement of a third party to help them discharge the role is purely an advice service, with the contractor retaining the responsibilities for the principal designer duties.
A further complication arises if the project involves novation of the design team, if for example, the Architect was also the “pre-tender” principal designer and is being novated to the D&B contractor. The principal designer element of their service cannot be sub consulted, therefore the D&B contractor becomes the duty holder and the contract documents need to reflect this. If the client wanted the architect to retain the role of principal designer for the construction phase, he would have to make a new separate direct appointment, although this scenario is not really practicable as there may then be a conflict of interest for the Architect. The client has obligations to appoint a principal designer with the necessary skills, knowledge and experience. The client should already have assessed the Architects capability for the principal designer role, before appointing them initially, however a new assessment may also be needed for the post contract arrangements.
Time to get it right – Check your contractual arrangements
All this is nothing new – CDM2007 was exactly the same, in that the CDM Co-ordinator had to be appointed by the client, however with the introduction of the new duty holder role of principal designer, enhanced client liabilities, a new focus on potential liabilities has emerged. As yet not everyone has realised this, 3 years on from the implementation of CDM 2015, organisations are in situations, attracting liability for CDM duties which they think are the obligation of others!