We’re now five years on since the tragedy that ultimately shone an interrogating light over an industry reluctant to change its working practices, writes Darya Bahram from King’s College London.

Anyone who’s followed the enquiry, set up to determine the cause and establish responsibility for this unjustifiable disaster, would’ve soon realised the disjointed nature of the process of procurement and lack of effective communication between the parties involved in the process of designing, constructing and maintaining a residential building. Dame Judith Hackitt’s findings in her independent review only reiterated the obvious: “The way in which procurement is often managed can reduce the likelihood that a building will be safe.”

On 10 January, the Department for Levelling up, Housing and Communities (DLUHC) published new Guidance on Collaborative Procurement for Design and Construction to Support Building Safety, designed to “assist the construction industry in adopting and implementing procurement practices to deliver safe high-quality buildings”. This work was the result of a joint investigation by King’s College London’s Centre of Construction Law and On-Pole Ltd, supported by a cross-industry procurement working group.

The resultant guidance includes a foreword by Dame Judith Hackitt acknowledging the importance of adopting its recommendations in order to ensure safer buildings. Launching the guidance, Dame Judith further emphasised the importance of collaborative procurement and contracts in driving change in culture, right from the outset, to ensure quality and safety outcomes are guaranteed by escaping from the default position of a ‘race to the bottom’.   

Collaborative approaches to the procurement process are proven to deliver successful outcomes in the housing sector and the guidance contains case studies that offer a wealth of relevant evidence. Procurement models that underpin collaborative behaviour, and contractual systems that focus on improved building safety, should form part of the regulatory regime introduced under the new Building Safety Act 2022.

The act sets out an enhanced regulatory regime for safety with regards to “in-scope” buildings, driving important changes in direction and behaviour, avoiding what Dame Judith makes reference to as system failure where: “The primary motivation is to do things as quickly and cheaply as possible rather than to deliver quality homes which are safe for people to live in.” 

This legislation creates a more stringent regulatory framework that can be directly linked to all stages in a project lifecycle of design, construction and operation.  Accountability and clear lines of responsibility in optimising value and managing risks fits with the three new gateways for ‘in-scope’ projects of:

• ‘Planning gateway one’ – at the planning application stage
• ‘Gateway two’ – before building work starts
• ‘Gateway three’ – when building work is completed.

The guidance breaks down the collaborative procurement of in-scope projects into four interlinked drivers that are necessary to ensure both quality and safety:

• Teams are selected on value criteria including the safety of designs, works and products, so as to avoid the ‘race to the bottom’
• Contractors and suppliers are appointed early on a conditional basis, so as to improve and agree safety proposals and reduce risks
• Teams are integrated through collaborative contracts that take account of resident consultation
• The design, construction and operation of buildings and refurbishments are supported by a ‘golden thread’ of digital information.

In order to ensure the widest possible adoption, the guidance provides flexibility for its use by public and private sector clients, and public procurement regulations or specific contract forms are prescribed. In order to ensure that the guidance isn’t forgotten or overlooked, it includes a list of questions for consideration by building safety ‘duty holders’ under the Building Safety Act in order to obtain approval from the Building Safety Regulator at each gateway.  These questions act as a checklist to assist duty holders in evidencing compliance with the requirements of the new act in advance of each gateway application:

‘Planning gateway one’ – at the planning application stage

• The client selection process for identifying the party drafting the fire statement (and the other professionals preparing the planning application) should demonstrate a balanced approach to value and evidence of suitable competencies
• The contract terms for professionals preparing the planning application should state integrated commitments (within their agreed roles and contributions) to the safety and quality compliance of their proposals
• The client selection process and contract terms for professionals preparing the planning application should make clear their capabilities and commitments to use suitable digital information management tools.                              

‘Gateway two’ – before building work starts

• The client procurement process for the principal designer, principal contractor and other professionals preparing the gateway two building control application (including plans, construction control plan, fire and emergency file and other supporting documentation) should:
  • demonstrate a balanced approach to value and evidence of suitable skills, knowledge, experience and behaviours
  • use early supply chain involvement (ESI) to optimise contributions to improved safety and quality within agreed periods of time in advance of gateway two
• The client contract terms for the principal designer, principal contractor and other professionals preparing the gateway two application should:
  • state their legal obligations as dutyholders (within their agreed roles and contributions) to safety and quality compliance
  • make clear their capabilities and commitments to use suitable digital information management tools
• The client, principal designer, principal contractor and other professionals  preparing the gateway two application should:
  • use a collaborative system to regularly consult with each other and with residents (where applicable) in advance of gateway two in relation to the safety and quality compliance of all designs, specifications and related information
  • use a transparent decision-making process to agree the gateway two application within their agreed roles and contributions as dutyholders to safety and quality compliance.

During construction (between gateways two and three)

• The client, principal designer, principal contractor and other dutyholders should use a collaborative system to regularly consult with each other when:
  • implementing the construction control plan and updating, maintaining and implementing the change management strategy approved at gateway two
  • monitoring and updating the accuracy of a golden thread of information
  • ensuring safety, quality and regulatory compliance of all designs, specifications and activities, including site controls and change controls.

‘Gateway three’ – when building work is completed

• The client, principal designer, principal contractor and other dutyholders preparing the gateway three application (including as-built plans and other prescribed documents) should use a collaborative system to:
  • regularly engage with residents (where applicable)
  • confirm the safety, quality and regulatory compliance of all designs, specifications and activities before work is covered up during construction and before work is handed over on completion
• The client procurement process should make clear its capability and commitment to hand over the golden thread of information and other prescribed information to the operator of the completed building (if applicable).

The tools for effective implementation of the act are set out in the DLUHC guidance which offers the collaborative procurement and contracting processes and relationships necessary to deliver safer homes. These include joint working across the supply chain, collaborative risk management, resident consultation and building relationships to ensure that all parties have a  better understanding of their responsibilities right from the outset of a project. As Dame Judith explains: “Procurement sets the tone and direction of the relationships between the client, designer, contractor and their subcontractors, as well as determining the formal specification of the building.”

The Grenfell Tower disaster has become the industry’s wakeup call for long overdue changes as represented by the new act, upcoming secondary legislation and the tools presented in the new guidance. The act sets out the stringent regulatory regime for in-scope buildings and the guidance offers the means by which new obligations can be satisfactorily fulfilled.

You can contact the author for any further information or guidance: [email protected]