Problems with role of Design Certifier: BC(A)R SI.9

by Bregs Blog admin team

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Some of the more troubling issues to emerge from the Building Control Officer’s conference in Sligo last week was the apparent complete lack of guidance or additional resources allocated to Building Control Sections to implement Building Control (Amendment) Regulation (SI.9 of 2014) by the Minister and his Department. The Department had not formally issued the code of practice directly to local authorities, rather they left it up to Building Control Officers to find it on the web.

The Department officials undertook to rectify this. The Department have started  to prepare a separate code of practice for Building Control Authorities, but this may not be ready till September 2014, six months after they are expected to operate the system. The officials promised to issue a draft of the code to the relevant officers soon. There appears to be no Building Control or Fire Officer on the advisory panel which is drawing up the code.

Unfortunately this may result in differing interpretations of the requirements of BC(A)R and the usual confusion as to whether officials should follow “draft” codes or not where there are different views on numerous matters. For example differing views on the standard and content of information required at commencement and completion stages.

There was also a high degree of uncertainty about the conflicts that will inevitably arise where a Completion Certificate is issued in relation to a building which has varied from a building for which a Fire Safety Certificate has been issued. It also suggests significant delays may occur due to inadequate resourcing at completion/ validation stages for projects.

One of the guidance documents issued to Local Authorities however is “Guidance Note 1.1.1.” issued by the Office of Government Procurement on the role of the certifier (Design and Assigned). Specifically this relates to works in the public sector.

There are some major technical issues of concern to registered professionals about to undertake the role of design certifier. Recent experience from one large Architectural practice confirms that attempting to apply these guidelines to current public works would appear to be not possible. Issues noted may warrant serious discussion and debate by members of each of the registered representative bodies, SCSI, ACEI and RIAI. Copy of this guidance is attached here: GN 1.1.1 060314. This document also details the role of Assigned Certifier- difficulties associated with this role have already been well documented in this blog.

This large and well-respected firm appeared to have tried to work through this guidance note for SI.9 on a current public project. However it appears the industry simply is not ready for BC(A)R SI.9. How do we fit the square peg in the round hole? Is it possible to apply these guidelines without a design certifier assuming intolerable liability?

The following piece was submitted by a Director of a large Architectural practice on 8th April 2014. Fortunately this project preceded SI 9 – if it had not the practice would have declined the role of Design Certifier as the potential liability is too great and the practice cannot accept responsibility for an uninsured and unregulated construction sector.

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With regard to the role of the Design Certifier as defined by Si 9 and as interpreted by the Office of Government Procurement Ref  guidance note to Local Authorities  ref GN 1.1.1.issued  on the 6/3/2014.

We note the following  is stated :-

  1. The Design Certifier will be for the majority of projects the Design Team Leader and the fee for completion of the Design Certificate will be part of his overall fee.-
  2. The Design Certifier will perform their role as set out in the Code of Practice for Inspecting and certifying buildings and works.
  3. The role of the Design Certifer does not end on submission of the Commencement Notice as they are responsible for submitting the ancillary certification for elements that are not designed at commencement stage and are designed by the supply chain such as lift , mechanical curtain walling etc
  4. The scope of Services for the Design Certifier particularly notes that the Design Certifer is required to provide a Design Certificate and co-ordinate any ancillary Certificates mentioned in the Certificates mentioned in the Commencement Notice.
  5. Suggested levels of Professional Indemnity for Professional are to be found in GN 1.6.3
  6. The Guidance note under 3.2 goes on to recognize that while Contractors should carry Professional Indemnity Insurance (PI) to cover their liability under Regulations  most contractors tendering in the mid and lower tender bands do not. Indeed the Guidance is that in the medium term PI should only be sought for project in excess of €20 million !!!!!– other than obviously Design Build Contractors who logically  must carry PI.
  7. It is acknowledged that PI is not currently held by many specialist works contractors and, in the interim, contracting authorities are asked to consider Section 4.2 of this guidance note before setting out PII requirements for ancillary design certificates sought from specialist works contractors. However Clause 4.2 refers us to the Purpose of the Inspection Plan – which suggests oversight will address?
  8. Clause 2.1.7 Ancillary Design Certs  for Specialist Works Contractors   states that In the Design Certificate the Design Certifier may rely on ancillary design certificates for elements of the building from specialists contractors and or suppliers such as curtain walling lifts heating ventilation equipment etc with specialist design input. The Design Certifer should satisfy themselves as to the certification provided by such specialists.

Pre-qualification may appear an obvious answer however we have recently tried to prequalify specialist based on limited terms but including, requirement for a Designer with PI, H&S third party accreditation, previous  experience / projects etc.

Declarations were duly received, however the validation process confirmed a Specialist supply chain which generally operates without insurance and qualified designers.

The situation is further exacerbated by the harmonised EU standards and requirement for Certificates of Performance/ CWCT for systems etc.

Given the onerous duties imposed by the Design Certificate it would appear ridiculous to expect an Architect to act as the insurance back stop having relied on the Specialist Ancillary Cert.

This is an impossible position and a further reason for declining the role of Design Certifier. 

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