Fire engineering consultants can be viewed as an unnecessary cost at project design stage with contractors feeling that they may have alternative options when approved solutions for fire safety are required.
A growing trend is appearing within the construction industry for organisations to offer (or offer through related company structures) their services in relation to both works and approval on the same project. This seems to have, at first glance, clear advantages for principal contractors in terms of project efficiency and cost savings.
However, increasing concern now exists as to whether such organisations performing this dual role remain compliant with the legal and regulatory regime. The role of Approved Inspectors, and more particularly, their independence from the designs and other works they are inspecting, is an example that may leave project teams potentially exposed.
For contractors appointing Approved Inspectors who were found to be non-compliant with this independence requirement, the risks would include project delays with associated costs, (depending on the terms of the same) breaches of both their own project contracts and the terms of their professional insurance cover, and potential revocation of any certificates of approval that had been issued by the Approved Inspector in question.
It is also important for contractors to recall that Approved Inspectors bear no design responsibility or liability to the extent that advice they give remains within the realms of their building control remit (and thus there will be no contractual protection afforded in respect of projects where things go wrong). Where that “advice” is limited to how a contractor and their team can demonstrate compliance with the minimum legal requirements for the project, the responsibility for ensuring such compliance rests with the contractor.
So where a contractor expects an Approved Inspector to contribute proactive advice in respect of a project as part of its appointed role, appointing the same organisation as has provided the design could potentially leave the contractor in an unprotected position, either by virtue of a regulatory conflict of interest or through the Approved Inspector needing to ensure that its advice does not cross over into the realms of design to protect its own position.
It must be noted that much of this area is, as yet, untested before the courts but in an article written by James Clayton, a Senior Associate of legal firm Hill Dickinson, Clayton analyses the potential interpretations that would be adopted to the relevant issues should litigation arise from a project to which those issues applied.