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Published 23 junio 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.
The new CDM Regulations replaced the 2007 version and make several key changes to the previous regime:
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.
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:
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.
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.
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