Duties and Competence

The Building Safety Regulator (BSR) has just published guidance relating to duties and competence requirements for clients, designers and contractors, and I think it’s important that people be aware of it.

https://www.gov.uk/guidance/design-and-building-work-meeting-building-requirements#competence-requirements

I’ve reviewed it from the perspective of a fire engineer, although that does overlap with the duties of others, particularly relating to competence verification.

Under the new regulations the client has various obligations, particularly when working on Higher Risk Buildings (HRBs). One of them is to ensure that “you must take all reasonable steps to appoint designers and contractors with the necessary competence or organisational capability to carry out their roles”. I would note that the wording “all reasonable steps” is quite a high bar.

On top of that, the client has to “keep a written record of the steps taken to make sure those appointed meet the competence requirements to carry out their duties”.

I’m not a client, so I don’t know exactly what processes a typical client goes through to check the competence of fire engineering companies they appoint, but based on previous conversations, it can vary a lot. One D&B contractor I dealt with some time ago was perfectly happy to admit that they didn’t do any competence checks and just went for the cheapest bid in every case. Whilst I think that’s appalling, I do suspect that it is more common than it should be. But one way or another, that approach is really not going to cut the mustard under these new regulations. Clients are going to have to work out ways to verify the competence of any companies they appoint, and document how they went about doing it. The days of focussing 100% on price and 0% on competence are over.

Obviously, the next question is how does a client verify the competence of fire engineers and other designers and subcontractors? Typically, they ask for a list of previous jobs that they’ve done, but realistically, that’s a pretty useless approach. Just because you’ve done jobs in the past, doesn’t mean that you’ve done them competently. Unfortunately, there are plenty of case studies where people and companies have done cheap, shoddy work again and again.

The question of what “competence” means has become a very hot topic recently. The BSR website gives further guidance on it, broken down between Individual competence and Organisational competence.

Individuals need to have the “necessary skills, knowledge, experience and behaviours” to do their role. That is very similar to the approach described in BSI FLEX 8670, which gives more details on those issues, so that document is well worth reading. It clarifies that technical skills are only one part of an individual’s competence, and that behavioural issues such as ethics is also essential.

For individuals, the BSR guide includes an obligation to “refuse to carry out work that is beyond their competence”. So if an individual is asked to do something that they’re not competent to do, the law says that they have to refuse to do it.

Obviously, people also need to be competent at carrying out their technical activities. I’ve discussed issues of competence with various people in the industry, and there is a regular question about how to prove that they (or their staff) are competent. The difficulty is that there are lots of different things that people carry out on a construction project, all requiring different expertise. From a fire engineer’s perspective, the expertise needed to carry out CFD smoke modelling differs from the expertise needed to design a sprinkler system, to write a fire strategy or carry out an external wall fire risk appraisal. Our company does all of those, and lots more, so it’s a challenge.

As a company, at Kiwa FSC we’ve been looking into this and are implementing a training and competency assessment system that identifies all the key technical activities that we do and for each one we identify what “competent” looks like. Obviously there are also various levels of “competence”, so a certain level of competence might be needed to produce a report on a particular topic, but then a higher level of competence might be needed for the reviewer of that report.

Where possible, we’ll be using 3rd party checks of competence (i.e. an independent body). Where that’s not possible, we’ll be using an in-house process for checking competence. We will not be relying on individuals confirming that they are competent, because there’s far too much evidence within the industry as a whole that some people are extremely bad at assessing themselves.

We then identify the training and experience that is needed to ensure that our staff meet those standards to help develop their expertise.

I suspect that other companies are going to have to go through a similar process.

The BSR website also describes the Designers’ duties. Those include making sure that the design they develop is compliant with all relevant requirements, and to coordinate with others in the design team. But it also includes a requirement that they “not start any design work unless you are satisfied the client is aware of what their legal duties are”. That’s going to be a challenging one. I suspect some clients might not appreciate every single designer challenging them to prove that they know what they’re doing.

It might also create a challenge when the client is doing something the designers disagree with. For example, in earlier articles, I’ve mentioned that we’ve been approached by clients to quote on projects where they’re planning on making a Gateway 2 Building Regulations application for an HRB at the end of RIBA Stage 3. That on its own demonstrates that the client does not understand the new Gateway 2 regulations, so to follow the earlier Designers’ duties, the designers should refuse to start work on projects in that situation. That’s exactly what we did on those jobs. Presumably, other designers didn’t take the same approach, but they might then be in breach of their legal obligations.

Overall, I think this BSR guidance is very helpful. The challenge will be getting all key people and organisations to read and adopt it.