JCT Povey Lecture 2022
“Building Safety Act: practical steps to compliance in construction”
Presentation by Gary Neal, head of fire, Skanska UK
Panel discussion hosted by Karen Kirkham, JCT chair, featuring Gary Neal and Amanda Long, chief executive, Building a Safer Future
Extra information:
Find out more about Skanska UK:
https://www.skanska.co.uk/
Find out more about Building a Safer Future (BSF):
https://www.buildingasaferfuture.org.uk/
BSF Champions – Benchmarking and Verification for Change
Download PDF
Find out more about the BSF Champions process:
https://www.buildingasaferfuture.org.uk/get-involved/become-a-bsf-champion/
Find out more about the Get It Right Initiative (GIRI):
https://getitright.uk.com/
Q&A responses
(KK – Karen Kirkham, GN – Gary Neal):
KK: Thank you for attending the 2022 Povey Lecture. We hope you enjoyed it and found it informative. I know I certainly did. We are sorry we could not get through all your questions on the day, but below are the answers to the ones we didn’t get to.
A legal perspective; is it now legislation that consultants (architects & contractors) are to prove type of competency depending on the design and build? at present consultants are usually held to a standard of reasonable skill & care. Has the position changed as to how the updates effects employers?
KK: I don’t think that this legislation can be seen as imposing design responsibility on contractors and consultants where there is otherwise none. However, my impression on hearing the process as described by Gary is that it may provide at least a gentle nudge towards 2 stage D&B.
GN: The point to consider is that under the BSA 2022 the accountable person and likewise under the RRO (2005) the responsible person are legally required to employ competent persons. Its up to them to consider what measures of competence they will employ.
I haven’t heard anyone mention the ‘Golden thread’ yet, ie the continuity of responsibility in the hands if those most able to manage that responsibility. Would the panel like to comment on where key responsibilities should lie?
KK: I’m glad you’ve asked that question. It would be naïve of any construction client to suppose that the emphasis on the competency of consultants and contractors somehow lets them off the hook. Firstly, they are the ones responsible for making those appointments. And secondly, and I think this is a really important point, the UK professional indemnity market is under such pressure, particularly with regard to fire safety liability, that there is a limit to which these risks can be “outsourced”. I, personally, am seeing a lot of insurers looking to completely exclude such liability notwithstanding.
What do you think are the main challenges to the industry meeting the requirements of the BSA?
KK: Insurance. See above.
GN: Cultural change to resist the temptation to pass the responsibility to the lowest denominator and hope they get it right.
How are failures going to be enforced? Which organisation will be responsible? Currently wrongdoing is not always prosecuted and we need it to be.
GN: The Building Safety Regulator will be responsible for prosecutions.
How do you see a connection of these regulations with the Industry Procurement Teams, with their area of responsibility?
GN: Procurement teams need to hold the commercial line and ensure that the supply chain have the correct qualifications, experience and independent accreditations to deliver the scope of works. Only then can we get an even assessment of costs from all those tendering for works.
They also need to consider products and ensure they have accurately assessed certification and test evidence to allow correct selection.
What are the specific qualification requirements that fire engineers need to provide?
GN: Membership of recognised industry bodies, formal qualification, track record in the specific area they are asked to consult on, plus adequate PI insurance covering the full scope of works and sector.
Tighter regulation is welcomed, but how will it be policed? All too often the lack of compliance is only discovered after a catastrophic act happens. How will this be policed and by whom?
GN: The BSR and the gateway process.
How significant a part do clients have to play in driving the cultural changes required (particularly when looking at the likely significant increase in construction costs to allow those changes to become embedded)?
GN: Ultimately its the client who has the responsibility so its in their best interests to demand the cultural change. Regarding increased costs, that is a misnomer as its more likely that costs will be saved if we move to position of first time right compliance and make inroad in to the spiralling costs of poor quality that are endemic in construction.
What changes are planned to the standard forms of contracts in relation to the Building safety Act 2022?
KK: JCT’s approach to incorporating the Building Safety Act is still being finalised as we await the final legislation, and the changes are also part of the wider update to the JCT suite which is ongoing. To keep informed about this you can sign up to the JCT Network.
Increased roundtable talks and awareness, like this session, surely is key. Bristol has recently just experienced another incident (similar to Grenfell)…how many more potential outbreaks are just awaiting ignition?
GN: Agreed ….this topic can never fall of the table or we have failed in our duty.
It’s not possible to withhold money for cost of rectifying work that may be non-compliant, e.g. fire stopping that has been ‘completed’ however cert has not been provided as contractor claims this will be in H&S File at PC. Is there a way contractors can be held accountable financially?
KK: It is perfectly possible to provide in the scope documents that this, or any other important criterion for occupation, as a precondition to practical completion being certified.
GN: If the contract is correctly placed and evidence of contractor compliance is a fundamentally condition of payment yes very possible. Why part with your money for work that is incomplete. that’s a choice we make.
About the Povey Lecture
The JCT Povey Lecture is an annual event at which an eminent person is invited to give their thoughts on significant matters that are relevant to the construction and property industry. The purpose of the lecture is to stimulate thought and encourage ways of continuing to improve the quality and value of construction output.
The event was inaugurated in 2003 to acknowledge and pay tribute to Philip Povey, who served JCT for fifty years.
Previous speakers and their papers have been:
Keith Waller (2021) “How can value based decisions drive construction’s transformation?”
Dr Damien Buie (2020) “Safety in numbers – Resilience and Certainty Through Data”
Professor Alan Penn (2019) “Our Digital Future: Space and Place in a Digital World”
Richard Threlfall (2018) “Collaborative, Connected and Cool: How technology and governance could transform the impact, efficiency and image of the construction industry”
Ann Bentley (2017) “Hitting the sweet spot: value for clients delivered by valued suppliers. How small changes in approach to procurement could have a big impact on the construction industry”
Tony Giddings (2016) “Collaboration: how Argent developed its successful way of working”
Sir Vivian Ramsey (2015) “UK standard forms of contract: are the cultural and legal concepts of such contracts applicable internationally?”
Tony Bingham (2014) “Let’s make friends with reality”
Peter Hansford (2013) “A Time for Partnership”
Paul Drechsler (2012) “At a Crossroads – a wasted generation or inspired talent. The Power to Choose”
Mike Putnam (2011) “The Journey To Deep GreenTM“
Paul Morrell (2010) Ambition in an Age of Austerity
Francis Salway (2009) Leading on sustainability
Rt Hon Nick Raynsford MP (2008) The Construction Industry and Government
Bob White (2007) Innovation in the Change Agenda
James Wates (2006) Joining up the dots: How the construction industry should punch its weight
Professor Peter Brandon (2005) Design, Procurement and IT: Rolling back the frontiers of management?
Professor Roger Flanagan (2004) Risk – yours, mine and ours – what is happening in the world
Richard Saxon CBE (2003) Vision for the Industry (formerly known as construction)
(click on the links to download lecture notes/view video)
Philip John Povey
The Povey Lecture was set up to honour Philip John Povey, the first Secretary General of the Joint Contracts Tribunal. A barrister by profession, Philip Povey commenced in construction as a legal adviser to the NFBTE, which later became the Construction Confederation, in 1951. At the same time he began to assist the Joint Secretaries of the Joint Contracts Tribunal (JCT).
Philip first became Director of Legal Services at the Confederation and then its Director General. He later became the first Secretary-General of the restructured Joint Contracts Tribunal Limited in 1998.
Philip’s work for JCT became well known through the publication of JCT Standard Forms of Contract, which in time found their way to many parts of the world. He had a keen mind, which steered him around what he viewed as the less important or parochial issues for which the industry seems to have a particular attraction and enabled him to get to the core of a problem and to resolve it. He was an extremely skilful draftsman who invariably managed to satisfy the demands of many disparate, often competing, bodies.
Although there were committees, working parties and individuals that provided valuable input, it was Philip who shouldered the burden of writing the text.
He retired from JCT at the end of 1999 but died suddenly only 18 months later, in 2001.