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Building Safety Act: how does the new regime affect Design and Build contracts for architects in England?

Learn more about the role of the Principal Designer in Design and Build projects and how to approach duties.

19 October 2023

Faced with the new dutyholders’ regime introduced by Part 2A of Building Regulations in England, many architects have been getting to grips with how the Principal Designer role can be carried out by the architect under Design and Build (D&B) contracts.

Historically, under D&B the Contractor takes over the design role to complete Stage 4 and carry out the construction phase and might make radical changes that the original architect has limited or zero control over, whether or not the original architect has been novated to the contractor, explains Paul Bussey, Senior Technical Consultant at AHMM and member of RIBA’s Fire Expert Panel.

A lack of design control over product selection (and product substitution under D&B) in relation to compliance, among other critical failings during the procurement, design and construction stages of the Grenfell Tower refurbishment, contributed to the tragedy. This lack of design control set in motion the review of the legislative process that has resulted in amendments to the building regulations, that include the new statutory dutyholder roles, to ensure such an event can never happen again.

How does the Principal Designer fit into the new regime?

The new Building Regulations Principal Designer role created by Part 2A of the Regulations is responsible for planning, managing and monitoring the design work during the design phase (which may also continue in parallel with the construction phase on non-regulated and phased construction issues on all projects), as well as coordinating matters relating to the design work.

This includes a duty to plan, manage and monitor the design work and coordinate matters relating to the design work so that all reasonable steps are taken to ensure that the design, if built, is in compliance with all relevant requirements.

This also includes design work for all building projects, including on existing buildings, change of use, as well as new build projects and higher-risk buildings.

Where do the new regulations leave those who work with Design and Build? (Photo: RIBA)

Additional Building Regulations information

The new duties for designers and the Principal Designer are of great importance and architects are well suited to carry them out. These professional features from the RIBA Practice team should help build a little more confidence in your part of the new regulatory regime in England:

The new Regulations call into question the advantages of D&B procurement (Photo: Canva)

Do Design and Build projects differ in the new regime?

Under the revised Building Regulations covering dutyholders and competence, the Principal Designer is the designer in control of the design, irrespective of the procurement route, says Dieter Bentley-Gockmann, Director at EPR Architects.

“The intent has always been that the Principal Designer, under Building Regulations and CDM regulations, would be the ‘lead designer’ of the professional design team, typically the architect. However, for D&B procured projects, this is no longer possible as the designer in control of the design work during the construction phase will be the Contractor (or Principal Contractor), so the Contractor ought also to be the Principal Designer for this stage of the project.

“There are prescribed provisions under the amended Building Regulations to deal with a change of the Principal Designer, and these can be used to pass the Principal Designer function from the Lead Designer to the design and build contractor, provided that the Contractor is competent to undertake this function.”

Learn more with RIBA’s Principal Designer course with Paul Bussey on RIBA Academy

Dieter points out that if a Lead Designer previously appointed as the Principal Designer is novated to a D&B contractor, there is no reason why the contractor could not then employ the Lead Designer to support them in the delivery of their Principal Designer duties. This could be done to address any competence issues.

“For the majority of projects, I do not envisage this should be an issue as the building control procedures are not changing that much for these buildings,” he says. “The biggest impact will be for higher-risk buildings (HRBs) and the requirements for approval of the relevant/applicable requirements at Gateway 2, prior to commencement of construction.”

Why early engagement in the supply chain is crucial

Dieter reports that he has been discussing this with a number of EPRA Architects’ clients, and the general expectation is that there will be impacts on procurement and costs to the extent that it is questionable whether D&B procurement will remain viable for HRBs, given the extent of design work that will need to be completed and approved prior to the construction phase starting.

Adding to this the time and cost impacts the controlled changes procedures will have, makes it likely that it would make sense from a programme and cost perspective to proceed with completing all the relevant/applicable requirements of the Stage 4 technical design prior to Gateway 2 and construction. This means earlier engagement with the supply chain and specialist contractors is crucial.

“All of this calls into question the advantages of D&B procurement,” Dieter adds. “A number of our clients are considering the potential merits of traditional or construction management as an alternative to D&B procurement.”

How does the Act affect D&B contracts?

From a legal perspective, there seems to be no bar to the architect and Principal Designer retaining the PD role if only their architect role is novated to the Contractor, says RIBA specialist practice adviser and Partner at DWF, Mark Klimt. Although he points out that it is likely to be safer to have a clean break in the event of novation to avoid any creation of divided responsibilities and for the architect to cease delivery of the Principal Designer role. The issue of professional independence is crucial here.

Conversely, there would seem to be no reason why a Contractor could not take on the role of Principal Designer, as long as they can demonstrate necessary competence, he adds. This will require the Contractor to provide internal corporate and individual competence and not just appointing an external consultant.

Mark is keen to stress that a key principle running through the new dutyholders’ regime that architects must take on board is that any designer becomes a statutory dutyholder and must not start design work until they are satisfied that the Client is aware of their duties under the Regulations. (See RIBA’s new client care letter templates.)

Read more about the Principal Designer role by pre-ordering RIBA’s Principal Designer’s Guide

Designers must discuss their duties under the new regime and how these will impact the scope of their role. Duties must be clearly detailed in any letters of appointment/engagement for new projects with language closely following that of the Regulations. In this scenario there would be a great benefit implementing a responsibility matrix early on with your client too, to ensure that the dutyholder’s duties are identified, clearly assigned and agreed reflecting requirements throughout the project programme.

Designers’ fee proposals should consider whether the client is aware of their duties under the Regulations as in the case of a novice client additional fees should be factored in for additional support and advice throughout the project.

Thanks to Paul Bussey, Senior Technical Consultant, AHMM; Dieter Bentley-Gockmann, Director, EPR Architects; Mark Klimt, Director, DWF.

Text by Neal Morris and the RIBA Practice team. Send us your feedback and ideas

RIBA Core Curriculum topic: Legal, regulatory and statutory compliance.

As part of the flexible RIBA CPD programme, professional features count as microlearning. See further information on the updated RIBA CPD core curriculum and on fulfilling your CPD requirements as an RIBA Chartered Member.

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