Revision of the Construction (Design & Management) regulations

The revision of the Construction (Design & Management) regulations, and forthcoming enactment of CDM 2015 this year, will bring many of the smaller operational and maintenance-type projects within its scope for the first time, and place new obligations on Clients and Facilities Managers throughout the UK. The scope of what constitutes “construction work” has also been increased and FM works are now clearly included. It will be incumbent on those who procure such “works” to be familiar with their obligations.

With the planned changes coming into force in April this year, subject to parliamentary approval, CDM 2015 makes the Client – namely, an organisation or individual for whom a construction project is carried out – accountable for the impact of their decisions on and approach to health, safety and welfare on the project. Crucially, it introduces strict liability on the Client in a number of areas – in particular, for the performance of their appointed duty-holders. Strict liability is a legal term that relates to the “ensure” obligations set out in the regulations. No doubt the legal profession is delighted with the additional work that could flow! Could this also lead to Clients being investigated by the HSE where “Fee for Intervention” has been raised against a contractor? Only time will tell.

A further substantial change, which will particularly affect Facilities Managers undertaking OPEX works within their estates, is the new requirement relating to projects involving more than one contractor.

A Principal Designer and Principal Contractor must be now appointed by the Client, and the Client must ensure – a new strict liability – that the Principal Contractor prepares a Construction Phase Plan. This document sets out how the work will be managed safely. On completion, the Client will be provided with a Health and Safety Plan, giving safety information on managing the work.

These responsibilities impose additional work on both Designers and Contractors, who will, no doubt, add the costs on and increase tender prices. For a small project under the current 30-day threshold, this could add 10-20% to a project’s cost.

So, it is evident that property owners carrying out maintenance work on their properties will face additional costs from Designers and Contractors for the added work that they now have to undertake, as well as new compliance risks as a result the introduction of new duties and the strict liabilities for the performance of these duty-holders. These risks will need to be managed by Client organisations, in the same way as other business risks, by the organisation’s Board. This will entail a review and revision of the organisation’s management procedures, including; works and consultant procurement, operational management and supervision, health and safety risk management, and internal assurance and audit processes.

Now, before these new regulations come into force, it is crucial that Client organisations – and their Facilities Managers, in particular – understand completely the implications to their businesses of the changes.

Overall, it is hard to see how the new Regulations will achieve the HSE’s stated aim of increased efficiency and reduced costs, bearing in mind the broadening of application of CDM2015 to include FM/OPEX and minor works simply because they are undertaken by more than one contractor.