Design responsibility should not be forced onto the shoulders of builders, especially subcontractors, argues Tony Bingham
I suggest that the Grenfell report of September 2024 is the most important and helpful lid to be taken off our building industry. Take a look at volume 4, part 6 of the Phase 2 report. It tells you about the very ordinary behaviour of architects, builders, subcontractors and sub-subcontractors. That’s a narrower focus than the whole report. But it gets to grips with how we do the work on site. Oh, and let me say this: none of it will come as a surprise to you experienced builders.
And also let me say that if you think that getting a builder to design and build is a good idea (as I once did), then abandon that thought. Grenfell tells me that it’s not wise to place contracts with folk who build and then lumber the otherwise good builder with design too. Stop it.
JCT message: scrap the JCT Design and Build Contract documents. Sling them out of your stable as a mark of respect for the report and for the 72 dead. That’s only one plea; there are more, but that’s an easy and goodwill start. I mean it: ban design and build building contracts.
The committee of inquiry were utterly appalled by the incompetence of the contractor to manage the design… they looked at a contractual flag saying ‘design and build’. but the builder is and was a builder – a putter-upper
My theme is simple. The design, the specification, the materials, even the method of working is the job of those who are up to their ears with professional gongs that tell us they are qualified to design buildings. It takes ages to become an architect, an engineer, a professional. Ages because the job is ever so complicated. They have to know all the inside track of regulations, performance, standards, risks. The designer even has to know – and say in the specification – how the assembly of the item is to be carried out.
The builder is the putter-upper. Repeat that, please. It’s not glib, not demeaning to call the builder a putter-upper. It’s a bloody difficult job. My builder has to find capable, talented actual putter-uppers to do the job… to follow the specification, to work in iffy weather and iffy site conditions. My builder has to scrabble around to cope with change orders, duff materials, dilatory and slow information. And then the JCB hits hard rock… No builder has any room to find design solutions, nor investigate a specification.
>>Also read: Key takeaways from the Building the Future Conference and Housing Today Live
The Grenfell committee heaped flak on the building contractor. After all, it had entered into a JCT Design and Build Contract, but, the report said, its team “did not have sufficient knowledge of the Building Regulations or approved Document B”. It “gave inadequate thought to fire safety, to which it displayed a casual attitude throughout the project and its systems for managing the design work did not ensure that its subcontractors and consultants properly understood their different responsibilities”. It “failed to co-ordinate the design work properly”.
I gained the impression that the committee of inquiry were utterly appalled by the incompetence of the building contractor to manage the design. I confess that I am not at all surprised by what I will call this limited competence of the builder. The company had contractually stepped into the design obligations but its staff had no design qualifications to speak of. They may have stumbled on those Building Regs and more beside; but no matter the familiarity, they were not qualified, not competent.
So, who should design? Only those who are qualified by examination and have the certificate on their wall
The committee of inquiry looked at a contractual flag saying “design and build”. But the builder is and was a builder – a putter-upper.
The builder was further lambasted for casting itself as merely the “the leader of the orchestra”. It let out the work and design to subcontract companies that were also putter-uppers… experienced putter-uppers.
It followed that the cladding works, via the cladding installer “did not concern itself sufficiently with fire safety at any stage of the refurbishment”. And it “appears to have thought that there was no need for it to do so, because others involved in the project, and ultimately building control, would ensure that the design was safe”. “It failed to ask the kind of questions about the materials being considered that a reasonably competent cladding contractor would have asked.”
The committee of inquiry were shocked by the lack of technical and performance and design ability of the subcontractor. I am not. Look, many a subcontractor begins life as a chap who was “on the tools”. He learns, for example, how the cladding is installed – same goes for most trades. The firm gradually prospers, expands and thrives. Soon an enquiry turns up calling for “design and install subcontract”. The main contractor demands that all performance obligations, whether express or implied, fall on the shoulders of the subcontractor. I guarantee you that our subcontractor does not understand the scope, the burden of design and install.
The committee of inquiry is highly critical of the cladding contractor because the committee see that it took on design and install. But the true position is that very few subcontractors of any sort have professional design qualifications. (True, though, the M&E end of our industry is good at design.) So the remedy is never to place design on the putter-upper subcontractor or main contractor. That’s reality.
So, who should design? Only those who are qualified by examination and have the certificate on their wall. There is nothing to stop our qualified folk having lots of dialogue with the putter-upper. That is how it used to work with “nominated subcontractors”. But in any case, having a cladding fellow (or whatever bod) that the designer can “have a word with” is in good order, but don’t, please don’t ask a putter-upper to investigate performance or specification or any design.
Tony Bingham is a barrister and arbitrator at 3 Paper Buildings, Temple
1 Readers' comment