The FIA Fire Engineering Council highlight the current confusion surrounding Regulation 9 and the options for both Building Control and the fire engineering professions to reach a firm conclusion…
High level discussions are taking place between Government, CICAIR and the professional bodies regarding current interpretation of Regulation 9 (Conflicts of Interest) found within The Building (Approved Inspectors etc) Regulations 2010.
The FIA Fire Engineering Council has chaired a round table discussion with the professional bodies in the hope of finding some common ground. The professional bodies are to represent the views of their individual members and this article is intended to bring the issue to the attention of all members with an interest in the future of these two professions.
Regulation 9
The performance of building control services by an Approved Inspector (the “Approval Services”) and fire safety engineering consultancy works (the “Works”) is governed by the Building (Approved Inspectors etc) Regulations 2010. The provisions of the Regulations relating specifically to independence of those Approved Inspectors from participation in the Works are set out in Regulation 9.
Regulation 9 prevents one person from providing both Works and Approval Services on the same project (a “Dual Service”) by requiring that an Approved Inspector must not have a “professional or financial interest in the work they supervise (an “Interest”) unless it is minor work”.
Under the Regulations, an interest would exist if the person (which can include a corporate entity registered as an Approved Inspector) carrying out the Approval Services where it:
- “is or has been responsible for the design or construction of any of the Works in any capacity”;
- “is, or any nominee of the person is, a member, officer or employee of a company or other body which has a professional or financial interest in the Works”; or
- “is a partner or is in the employment of a person who has a professional or financial interest in the Works”.
What is required at this time is clarity for all concerned about the scope of the activity that can be undertaken on a single project by companies within the same group (or otherwise associated) within the context of the regulatory framework noted above.
It is established common ground for all parties that a single company (single legal entity) performing both design and approval on the same project would be a breach of the Regulations.
At the other end of the spectrum, it is also common ground for all parties that two entirely unrelated companies (i.e. completely distinct legal entities with no group connection or otherwise having any common directors and/or shareholders and/or business relationship) could each perform their respective appointed approval and design service on the same project without there being a breach of the Regulations.
The question has yet to be properly clarified as to what is acceptable in between these two very clear extremes and this is the point where updated DCLG policy/guidance is urgently needed to enable those operating within the construction industry to do so appropriately within the existing regulatory framework.
It may be rightly assumed that the provisions contained in the Building (Approved Inspectors etc) Regulations 2010 and the Building Control performance standards July 2014 are analogous and are there for the specific purpose of ensuring quality, effective, and safe engineering design; something that can only be satisfied through truly independent approval mechanisms. The key message being delivered by both is that of impartiality, both actual and perceived, and where there is a risk of there being bias there cannot be any real reliance placed on the approval process. That is the whole point of the performance standard and, more importantly, the governing legislation.
The Building Control Performance Standards states the following:
Standard
‘Building Control Bodies and their professional consultants used in support shall observe best practice professional standards and business ethics expected of service providers. No Building Control Body shall attempt to supplant a competitor, or win work, on the basis of interpretation of the Building Regulations. The principle of the building control function being clearly independent shall not be compromised when delivering any design and/or support services.’
Whilst the intention of this Standard appears crystal clear, a question arises over the words “clearly independent”. Clear to whom? Certainly not to those companies who chose to appoint providers who advertise a one-stop-shop for fire safety design and approval.
The professional bodies with an interest in the Building Control and Fire Engineering professions have a role to play because the path chosen will shape the future of both professions. All professional bodies have an interest in promoting and enforcing the highest professional qualifications and standards in order to ensure the consistent delivery of standards – bringing confidence to the markets their members serve. This issue will cause those bodies to reflect on their vision, mission, values and codes of conduct. CICAIR Limited has indicated that it intends to review its code of conduct, and claims it intends to improve the robustness of surveillance audits undertaken on Approved Inspectors. DCLG, CICAIR and the professional bodies need come together and agree on which path to take.
Here are the options and consequences:
Option 1: Following an amnesty period to allow for completion of existing projects, enforce a clear policy that “No body corporate, group of companies, related companies, nor any individual, shall undertake both Fire Engineering (the works) and Building Control (approval services) service offerings on the SAME project.”
Consequences: Some Approved Inspectors would need to alter their current commercial practices. They would still offer Fire Engineering as a service but simply not on the same projects that they provide the approval services on.
Option 2: Develop a detailed specification for the construction of the ‘Chinese walls’ necessary to enable both Building Control bodies and fire engineering firms to offer a dual service. This option would require periodic surveillance undertaken by competent professionals within CICAIR Limited.
Consequences: The Building Control market would become further diluted as both independent and large multidisciplinary fire engineering firms enter in order to compete on a level playing field with those already offering the dual service. Effectively, this would soon lead to self-certification of fire safety design and engineering.
Both paths present some difficulties but option 2 would be more arduous than option 1 and its destination is less than favourable for both professions. The following list offers some insight into the principles up for consideration if the least preferable option 2 is taken.
- Sub-contracting of the Works by any person or entity appointed as an Approved Inspector of those same Works should be prohibited.
- No common directorships (or common managerial appointments relevant to the performance of any aspect of a Dual Service).
- No individual person or corporate entity should have a shareholding in both of the entities.
- The principle behind individual assessment should be to prevent a single “controlling mind” from directing the performance of both elements of the Dual Service and / or a single person or entity from receiving a material financial advantage from the performance of both elements on the same project.
- It is also anticipated that organisations registered as Approved Inspectors would have to self-declare any changes to their corporate structure that occurred at any time between registration as an Approved Inspector and any re-registration exercise.
- Any marketing of the provision of both by the same entity/group of entities on the same project should be prohibited.
- Incentive schemes whereby staff, are rewarded for promoting and/or gaining appointments should be prohibited.
If this route is chosen, competition in the Building Control market will increase still further with the approval function being seen as ever more subservient to design to the point where it will effectively cease to exist altogether as a meaningful or viable entity. And a new era of self-certification will have arrived by the back door.
Is this what the entire Building Control profession wants?
Is fire engineering ready for self-certification?
The decisions we take now will be irrevocable and have the potential to alter the face of two professions now and in the future. Both paths appear arduous but one is clearly more perilous. We have to choose one and it is important that both professions and the professionals who enjoy careers within these two fields think carefully about the full implications of the choice before setting out to voice their opinions.
Either way, change is on the horizon.
Fire Industry Association (FIA)
Tel: +44 (0)203 166 5002
info@fia.uk.com