The Government Soft Landings initiative is designed to keep the project team involved in the operation of public buildings post-completion. But what are the contractual implications?
It is no secret that the UK government intends to use BIM on all centrally procured projects by 2016, but there has been less publicity about the Government Soft Landings (GSL) initiative, which will also apply on all such projects from 2016.
For the uninitiated, GSL aligns the design and construction of a building with its operation and management in an attempt to ensure that the completed project satisfies the needs of the client. The idea is that it will reduce costs and improve the performance of the asset by ensuring that design decisions take into account the impact on ongoing maintenance from an early stage.
The BIM Task Group recently announced that a government and cross-industry working group is to be assembled to agree what formal documentation may be required to support the implementation of GSL, bearing in mind the “legal, contractual and commercial implications”.
Why is this necessary? Although GSL is viewed as largely a technical issue, for it to be used effectively the contractual arrangements will need to be carefully considered. For example, one of the key tenets of GSL is the greater use of outcome-based specifications against clear performance criteria so as to ensure that a project is designed and delivered in accordance with operational standards. This may start alarm bells ringing for consultants, as any obligation to ensure their design complies with a performance specification may contravene their professional indemnity (PI) insurance cover on the basis that it is akin to a fitness for purpose warranty. It will therefore be important for any performance-related obligations regarding design to be very
carefully worded.
If most of the fees have been paid, companies may prefer simply to walk away following practical completion
GSL also involves an extended handover period of three to five years following the completion of a project, during which an annual post-occupancy evaluation will be carried out to assess the performance of the building against the design criteria. This will clearly extend the project team’s involvement beyond what they are currently accustomed to. For example, a number of contractors insist on the defects liability period being no longer than 12 months after practical completion and some even limit their liability to defects notified during that period.
It will also be interesting to see how those who are to have an input in the extended handover are encouraged to contribute openly to any post-occupancy evaluation process. What happens if one of the parties realises that they have failed to do what they were contractually obliged to? There is bound to be some reluctance to own up to one’s mistakes and doing so could have PI insurance implications. Thought will need to be given to ensure that any such evaluation does more than just “paper over the cracks”.
GSL could also have an impact on the payment mechanisms used on a project, as a commercial incentive may be required to ensure that it is in the interests of those involved in the extended handover period to stay on the project. If most of the fees have been paid, they may consider it preferable simply to walk away following practical completion.
How has the industry reacted to the legal and commercial implications of GSL thus far? The RIBA Plan of Work 2013 was developed with GSL in mind (for example, Stage 7 includes “post handover monitoring and feedback”) and research association BSRIA has recently published guidance entitled “How to Procure Soft Landings”, which assists clients in assessing tender returns that include Soft Landings services and focuses on clarifying responsibilities.
The contractual implications of GSL will depend on how it is implemented in practice, but if the benefits of the initiative are to be attained the form of contract (and not just the scope of services) will need to be carefully considered. Without wanting to sound like a broken record, it seems to me that GSL would be a very good fit with a collaborative procurement method, such as alliancing. As highlighted in my article on 25 October, alliancing enables the owner of an asset to take an active involvement in a project, aligns the interests of the members of the project team with those of the project as a whole by way of a pain/gain share mechanism, and encourages the parties to operate in a frank and open manner by requiring them to agree not to sue each other except in limited circumstances. This should address some of the above concerns and help facilitate the successful adoption of GSL.
Sheena Sood leads construction, engineering and infrastructure at solicitor Beale and Company
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