Spec Finish

Technical www.thefis.org 17 and co-operates, co-ordinating their work where required; and • liaise with the principal contractor, keeping them informed of any risks that need to be controlled during the construction phase. It is very important that you raise any concerns that you have in respect of health and safety promptly. The role of the Construction (Design and Management) Regulations 2015 designer (as opposed to principal designer) A designer is an organisation or individual whose work involves preparing or modifying designs for construction projects, or arranging for, or instructing, others to do this. The intent of the HSE is for designers to take responsibility for the health and safety aspects of their design, including any implications for maintenance and operation, and to ensure that a principal designer takes responsibility for co-ordinating health and safety in the design process. The design team is responsible for the design of the building and for producing the information required to manufacture and construct it. The design team is led by the lead designer, who is responsible for co-ordinating the inputs and information from each team member. Anyone who designs, engineers or contributes advice or information that will be used as part of the design needs to be in the design team. How to protect yourself When entering into an agreement, your initial position should be to state that you are not part of the design team if you have no or very limited design input. If you are not a designer, you are not responsible for fulfilling the obligations imposed on designers under the CDMs. It is vital that you carefully check contracts for any reference to design and either remove if not applicable or reasonable, or ensure that any design recommendations should be referred to, verified and agreed by the principal designer. 1. Interfaces with other parties’ design or workmanship – if you are a ‘designer’ as per the CDM 2015, before you enter into the contract: • try not to accept liability for interfaces. Taking on this risk may open you up to defective work claims, delays and reputational damage and you would be dependent on the other contractors involved in the interface fulfilling their obligations properly; • you may be liable for the work and/ or for any design defects for years (depending what the contract says or the laws applicable to it). So, set out in writing to the principal designer and your employer that while you may have to create an interface between your work and others that you do not warrant the design of said interfaces and that you only warrant your own section of them as a standalone design. Set out in writing that you do not warrant the overall health and safety or functionality of the interface sections; and • advise your employer that you are only liable for the works you carry out, and the principal designer must be satisfied that the interfaces are properly designed or specify an alternative system which is. 2. If there is any risk that you have or may be deemed to have accepted liability for the interfaces then: • make sure you have all the information you need to carry out a proper assessment of your risk, and flag up any issues you have very to the principal designer and employer; • ensure your employer and principal designer inform you immediately if any of the other contractors substitute material or use of different methodology which interface with your works, along with details sufficient to allow you to consider any impact. You may want to insist on a collaboration clause, which imposes an obligation on other subcontractors to work together with you; and • limit the content and duration of any guarantees or warranties you are giving in respect of materials to those you receive from your suppliers or manufacturers. 3. Net contribution clause – this limits your liability to the proportion of the loss and damage that it is fair and reasonable for you to be liable for and allows for the court to proportion blamewhere they feel it lies. Your insurers can advise on suitablewording, or call the FIS legal helpline (01217070077). 4. Insist on a cap on liability clause in your contract. This sets out themaximum amount the employer can claimagainst you in damages, irrespective of what the actual loss is. You need to limit this both in terms of money and time. State that you will not be liable for anything that you are not insured for and only up to the financial amount that your insurance covers you for. Limit the time to the shortest time possible within which anyone can claim against you. 5. If you are a designer responsible for any design portion of the works, you should have professional indemnity (PI) insurance. Set out the level of PI insurance in your agreement and exclude liability for any elements not covered by it. 6. It is vital that design changes or variations etc are recorded and that everyone involved in the discussions and the project are copied into such changes. 7. Equal and approved – any changes to design should be signed off through the design process and be equal and approved. www.thefis.org/knowledge-hub/ contractual-and-legal