Design Certifier – Can we leave it to the builder to sort out?

by Bregs Blog admin team

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The following piece was submitted by a Director of a large Architectural practice on 8th July 2014. 

Design Certifier – Can we leave it to the builder to sort out?

The Design Certifier faces increasingly more complex challenges in addressing the issue of Contractor Works Proposals which the Building Control (Amendment) Regulations (BC(A)R) have not addressed.

Guidance Note 1.1.1 of the BC(A)R Procurement Implications for Contracting Authorities provides detailed guidance to Contracting Authorities on the steps they should take to implement this legislation in the context of procuring public building and infrastructure. The guidance is that the Design Certifier should be the design team leader or the team member, designated to provide the greatest technical input, and that the fee for the completed Design Certificate is included in the overall service.

It appears that Contracting Authorities have now decided that, for building projects, this role shall be annexed to architectural services. Invitations to tender for public projects now reflect this thinking. Those concerned with the additional liability and who intend to increase their fees accordingly, in all likelihood may have to retire from the increasingly fee-competitive public work! On the other hand EU designers bidding for Irish public work market may view this guidance as a procurement barrier and challenge it.

The above guidance document specifically notes that while the Design Certificate is required at Commencement Notice stage the Design Certifier’s role does not end there. The Design Certifier is also responsible for completing the submission of ancillary certification at the Completion Certificate stage for elements not designed at Commencement Notice stage. The Design Certifier is also required to liaise with the Assigned Certifier during the course of the building works and prepare any documentation required to record any changes to the works.

Thanks to Article 23 (8) of the EU Procurement Directive those engaged in the design and management of Public Works Contracts, where designed by the Employer, will know that this means that this is the requirement to avoid specifying product names. Major and minor changes to construction technical specification are submitted as Contractor Works Proposals and purport to be equivalent to that specified. Proposals are commercially driven, and promoted as shared savings to the Contracting Authority who is frequently mindful about funding the ubiquitous unforeseen/s. These Contractor proposals create an obvious threat to building quality, material design life and robustness. Each and every material and component specified by all design disciplines is open to such change.

Client approved changes post-commencement can extend to major elements such as roofing, curtain walling systems and ceiling and flooring selections. These may all be different to that benchmarked in the specification through performance criteria. Current practice is that the Architect will appraise the Contractor’s submission for variations to architectural elements and advise the Client of compliance with Works requirements. The Design Team is no longer the specifier, rather they “accept” or “approve” or “no comment”  the Contractor’s proposals. Liability then moves logically to the Contractor as both specifier and designer purportedly in line with Work Requirements. The reality is that this does not happen in current practice and inevitably Contractors and Clients look for Design Team approval.

What will happen now to the Design Certifier’s carefully prepared Commencement Notice submission, outlining how the plans, calculations, specifications and particulars comply with the Building Regulations, if changes occur following Client approval of Contractor Works Proposals? Will the Design Certificate submitted at Commencement become null and void? The practical reality of most Public Works Contracts has not been addressed in the legislation.

Logically, the Contractor could assume the Design Certifier role when changes are proposed and be responsible for the Design Certificate and ancillary design certificates for all changes and omissions to the commencement stage design submitted by the Architect as Design Certifier. The Contractor could then lodge the drawings and documents duly certified by the new ‘Contractor/ Design Certifier’ relying on ancillary certificates and submitted in accordance with the Code of Practice before the relevant element of the work commences and without risk to the Contractor’s programme.

There is a clear gap in the chain of responsibility without a clear definition of the changed responsibility of the original Design Certifier and any subsequent ‘Contractor/ Design Certifier’. In addition building programmes will need to be extended and claims for delay will be inevitable to allow for the preparation of the changed design documentation by any ‘Contractor/ Design Certifier’.

At this point there are no clear solutions to the above situation in the BC(A)R legislation. This is an extremely serious omission requiring urgent rectification.

Other posts of interest:

RIAI CPD July 2014: Design Certifier in the Design Process- SI.9 – click link here

Engineers Ireland CPD 10th June – click link here

Where is the Design Certifier in BC(A)R SI.9? – click link here

MISSING PERSON- the Design Certifier? – click link here

Problems with role of Design Certifier: BC(A)R SI.  – click link here

RIAI: time needed for schools- BC(A)R SI.9  – click link here

Specialist Certifier 4- COMPANY: Questions and Answers – click link here

4 tips for Design Certifiers… – click link here

Law Society : Certifier is single point of responsibility – click link here

Post 1: Architect’s Ancillary Cert (Design & Completion) – click link here

BC(A)R SI.9- BCMS: “must do better” – click link here

ALERT: Cork CoCo guide to BC(A)R SI.9 – click link here

Where to find everything part 1? BC(A)R SI.9 – click link here

 

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