Fit for Purpose: What is the point of standards?

In June 2015, I wrote a blog entitled “Fit for purpose: A generalist’s charter”, in which I suggested that “rather than setting out clear standards and specifications that are required to be followed, some construction professionals will merely list a number of (usually out of date) International, European or British Standards, trade specifications and/or the ubiquitous but totally meaningless Best Industry Practice, and override the whole thing with ‘reasonable skill and care’, or ‘fit for purpose’.

At the time, a court judgement had recently awarded damages of €26.5m against a design and construct engineering company for failing to provide wind turbine foundations that were ‘fit for purpose’, despite having followed the specified standards. Unfortunately the standard had erroneous data, and the resulting foundations did not did not satisfy the customer’s requirements for a twenty year life. So under this judgement, any contractor could diligently carry out his duties by following the required standard, but still be liable if the standard was incorrect.

The whole thing was turned on its head, by a successful appeal in which the judges threw out the award. The learned judges held that ‘fit for purpose’ and ‘reasonable skill and care’ clauses cannot over-ride any specification or specified standard.

However, a further and final appeal judgement was issued, where the Supreme Court reinstated the original award stating that it was clear from express wording in the Technical Requirements document that J101 (the specified document) was a design requirement and it was the engineering company’s responsibility to identify any areas where the works needed to be designed to any additional or more rigorous requirements.  Such more rigorous requirements being that the foundations should deliver a twenty year life.

By this judgement, clients seem to be encouraged to include out of date or unread standards, over-riding everything by saying “by the way, I have no idea if the standards I’ve specified are suitable for my requirements, so you should offer a broadly ‘Fit for Purpose’ product that satisfies the following additional criteria.”

Also by this judgement, tenderers seem to be required to ignore the standards and write their own.