CDM Regulations 2015: Guide for PFI Managers - DAC Beachcroft

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CDM Regulations 2015: Guide for PFI Managers

Published On: 23 June 2015

The new Construction (Design and Management) Regulations 2015 CDM ("Regulations”) came into force on 6 April 2015. It is important that PFI Managers take note of the changes introduced by the new CDM Regulations, as they apply to all building and construction work.

What has changed?

The new CDM Regulations replaced the 2007 version and make several key changes to the previous regime:

  • The role of CDM co-ordinator has been abolished and replaced with the concept of the Principal Designer; and
  • The role of the Client has now expanded, with key health and safety obligations now being placed on the shoulders of clients.

Who is the Client?

Trusts often commission building and construction works throughout the cycle of a PFI project. Therefore, the CDM Regulations will play an important part in a PFI Manager's role at a Trust during the operational phase of the PFI project.

The new CDM Regulations state that a client will be "organisations or individuals for whom a construction project is carried out."

According to the standard form PFI contract produced by the Department of Health, Project Co is the designated client for the purposes of carrying out the initial construction works. However, once the construction phase has completed there is a strong possibility that a Trust will be deemed to be the Client in construction projects during the course of the PFI operational phase.

What are the Client's duties?

Given that there has been an expansion of the duties imposed on the Client under the CDM Regulations, it is important that we consider what these duties are.

Under the CDM Regulations, commercial clients are subject to various duties, which include:

  • Making suitable arrangements for managing a project without risks to the health and safety of any person affected by the project;
  • Ensuring that other dutyholders are appointed as appropriate, including the principal designer and contractor;
  • Ensuring the roles, functions and responsibilities of the project team are clear;
  • Ensuring that the sole contractor or Principal Contractor prepares a construction phase plan before construction works begin;
  • Ensuring that the Principal Designer prepares a health and safety file;
  • Ensuring sufficient time and resources are allocated;
  • Ensuring relevant information is prepared and provided to other dutyholders;
  • Ensuring that the people and organisations they appoint have the necessary skills, knowledge, experience and (if an organisation) the organisational capability to manage health and safety risks;
  • Ensuring effective mechanisms are in place for members of the project team to communicate and cooperate with each other and coordinate their activities; and
  • Ensuring that the Principal Designer and the Principal Contractor carry out their duties.

PFI Managers need to be fully aware of these wide-ranging duties before and during any construction works during the operational phase of the PFI project. Failure to observe the CDM Regulations may lead to a dangerous or fatal accident while the construction work is carried out, along with intervention by the HSE. In serious cases of non-compliance, the HSE may even prosecute the Trust.

What if there is more than one client?

Given the unique nature of a PFI project, there may well be more than one client; the Trust, Project Co and the FM sub-contractor.

Under the CDM Regulations parties can "agree in writing" which of them will be treated as the Client for the purposes of the CDM Regulations under the building contract.

If multiple clients exist and contractually agree which party is to be treated as a client under the building contract, all potential clients must continue to cooperate and provide information they control to the project, but the remaining client duties rest with the Client identified in their agreement. The duty to provide information to the project is an absolute obligation and one which cannot be contracted out.

Therefore, if a Trust agrees that Project Co is to be a client under the building contract the Trust still has a duty to provide information.

Tips for Trusts

  • Trusts should where possible, try to ensure that the Project Co under a PFI project is defined as the Client under a building contract for the purposes of the CDM Regulations for any construction work during the operational phase;
  • If the Trust is the Client it should appoint a "Principal Designer" (formerly the CDM Coordinator) as soon as possible, otherwise the Trust will have to carry out the Principal Designer's duties on top of those imposed already on the Trust as client under the CDM Regulations;
  • Even in circumstances where it is agreed that the Project Co will be the Client for the purposes of the CDM Regulations under the building contract, the Trust will still retain a duty to provide information they control to the project.