Author: Tim Oakley

Commencing my working career as an Architect, I shifted to developing Bulk Quotation Arrangements (latterly Framework Arrangements) for building components and services for public sector use. As Head of Technical I kept the technical procurement aspects of LHC's procurement activities up to date and ran the Technical Team. I was then appointed LHC's Head Consultant which encompassses all aspects of procurement practice and, basically, anything that needs doing. Now retired, I do nothing but live life and wait for someone to recognise my public speaking, voice-over and acting skills.

Modernise or Die: Innovate and Survive

Mark Farmer’s 2016 review of the construction labour model, alarmingly entitled “Modernise or Die”, was another wake up call to not only the construction industry, but also construction professionals, suppliers, clients and governments alike.

Report after report from “Reaching for the Skies” in 1934, “Emmerson” in 1962 and “Latham” in 1994 to “Egan” in 1998, “Modernising Construction” in 2001 and “Never waste a good crisis” in 2009 has carried broadly similar messages. However, no other author has been as hard-hitting or as astute as Farmer, who tells it like it is, however uncomfortable that may be. I recently heard him answer a question about the role of the Quantity Surveyor in collaboration and driving down cost. As a Quantity Surveyor himself, he surprisingly replied that the profession must change, and not be so obsessed with price and prices. “Money is the glue for collaboration. QSs are not the glue, they drive divisiveness.” He suggested that we should all move away from the detail and see the bigger picture, the out-turn cost, whether it be monetary, collaborative, social or otherwise.

One of the recommendations of Farmer’s report, in respect of OffSite Construction, encouraged Government to act to provide an ‘initiation’ stimulus to innovation in the housing sector by promoting the use of pre-manufactured solutions through policy measures, prioritised either through the conditional incentivisation of institutional development and investment in the private rented sector, the promotion of more pre-manufactured social housebuilding through Registered Providers, direct commissioning of pre-manufactured housing or a combination of any of the above. Government should also consider planning breaks for pre-manufactured approaches.

So what was Government’s response? As the report was commissioned by Construction Leadership Council (CLC), the ministers for housing, education and construction (Alok Sharma, Anne Milton and David Prior, respectively) asked Andrew Wolstenholme, Co-Chair of CLC, who wrote “Never waste a good crisis”, how he could best address this and drive improvement, “matching the scale of the challenge with a commensurate response”. Government looked forward to hearing his thoughts on “how CLC will lead on this agenda in collaboration with the wider sector”.

Is not the whole point of the recommendations that Government should lead in addressing the growing problem? Farmer has exposed the Pachyderm that has been in residence for a century or more. Government should act, not talk or ask others to talk about rehousing the beast.

They may have announced over £25 billion of investment to increase housing supply. The Housing White Paper may have set out measures to stimulate innovation and increase the use of modern methods of construction (MMC) in housebuilding. Those measures may include the Accelerated Construction Programme, the Home Builders Fund and support for Custom Build, Housing Associations and Build to Rent. They may also include joint working groups regarding mortgages and planning for MMC, working with local areas who are supportive of MMC, innovation and growth funding and support of financial incentives. The Government may also be “determined to ensure more houses are built more quickly, while maintaining quality”, and “keen to work with firms that can achieve these goals through innovative construction methods”.

But until Government acts like a governing body, Colonel Hathi and his Jungle Patrol will continue to roam through the construction industry.

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Rules & Regs or Fit for Purpose?

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.

That may be all well and good if there are comprehensive specifications and specified standards, but what is the case when a ‘specifier’ has specified very little and had relied on ‘fit for purpose’? I suggested that the ‘specifier’ has very little to stand by. “That’s not what I wanted,” will cut very little ice when the response is “You didn’t actually tell me what you wanted.”

This would also apply when the ‘specification’ for a replacement window, door or kitchen is described as ‘like-for-like’ and/or ‘fit for purpose.’ If you fail to set out a comprehensive specification of your requirements, you cannot expect the contractor to second guess what you require. I concluded that commissioning surveyors should set out their specific requirements comprehensively, to ensure that they would get what they wanted. Failure to do so would result in them getting what they deserved.

Recent events have led me to a modified conclusion. As well as setting out a proper specification, I believe commissioning organisations and their consultants should ensure that the outcome will also be ‘Fit for Purpose.’ The erring Contractor or Consultant who has ‘Value Engineered’ out the safety of residents and occupants will be in breach of their duties if a catastrophic event occurs and will be less likely to propose potentially unsafe, cost-cutting measures.

Similarly if a Client has a duty to commission projects that are ‘Fit for Purpose’, there will be less incentive to drive costs down at the expense of Health and Safety.

The over-riding concern should be: if it doesn’t feel right, it probably isn’t, despite all the tests and certifications it may have.

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Wrapping a building in a polythene bag is wrong

Following the Grenfell Tower tragedy, BRE have confirmed the details of the tests that are now being carried out on samples of ACM cladding submitted by councils throughout the UK. The test was devised by an ‘independent panel of experts’ on behalf of the communities department and performed on the core of test samples after the external aluminium skin had been removed from the panel.

So are these the same tests that were performed by test houses to confirm the fire rating of Reynobond panels before Grenfell? Is this how British Board of Agrement (up at the BRE site in watford) tested and certified the panels that it is claimed were installed at Grenfell Tower? Were such tests even carried out or was reliance made on ‘desktop assessment”? Or are these more stringent tests – tests that common sense should have told the specifiers, the regulation makers, the installers and the ‘Value Engineers’ were required? A spokesman for Unite has suggested that we should stop attacking the existing regulations and, by inference, that we should stop vilifying those who have worked within those regulations.

(Since writing the above, it has been reported that “even the Government’s newly-formed fire advisory body said the fire tests only examined the filler inside the aluminium panels. But because the cladding system has not been tested, it considers that some buildings could still be deemed to be safe, assuming the entire cladding, insulation and cavity block system worked to expected standards.”)

It appears now that investigations are being carried out on everything that might have contributed to the cause of the fire, the rapid spread of flames, the existence or otherwise of adequate warning, the effectiveness of compartments during the remodelling, the lack of sprinklers, the inappropriateness of the advice to stay in the flats, the lack of additional fire escapes, the restricted appliance access etc., etc. Is there to be a similar attack on regulations covering theses aspects also?

Without appearing to be #betterinmyday, I am confident that we would never have entertained the use of such materials, regardless of whether someone, somewhere certified that they achieved an acceptable level of fire safety or had carried out a ‘desktop assessment’ to assert acceptability. My duty as an Architect was to look after the interests of not only my paymasters, but those of my paymasters’ end users.

Wrapping a robust and inherently safe building in a polythene bag and allowing it to be set alight is wrong. Insisting that the regulations allowed it to happen is also wrong. Don’t hide from your responsibility to tell the regulation makers that they are wrong.

Do the right thing, whatever the cost.

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PQQ, SQ, PAS91 or ESPD: What does CCS say?

cccs_imageAfter prevaricating for nearly two years and being wrong-footed by the EU, from which organisation the UK is now supposed to be exiting, the English Government’s Cabinet Office Crown Commercial Service has finally, and rather suddenly, issued its guidance on the new look Standard PQQ, which it is now renamed “Selection Questionnaire (SQ)”.

It is normal for important government actions to be preceded by a period of open consultation with the potential targets of such action, but that doesn’t appear to have happened on this occasion. Of course, consultation is often ignored; witness the reduction in Feed-in Tariffs, when the consultation period ended after the FiTs were reduced.  So why would CCS bother with such an unnecessary step?  Well if they had consulted, they might have avoided some of the apparent gaffes that have been published.

Gaffe No. 1:

The Policy Procurement Note – Action Note 8/16, is dated 9th September 2016, the date from which we all assume that the Guidance is effective. Unfortunately, the document was not published until 26 September 2016.  So all of you who have published Contract Notices in the intervening period are subject to challenge for not using the SQ about which you had no knowledge.  And anyone who doesn’t immediately use the new SQ is also subject to a rap over the knuckles from CCS and similar challenges.

Gaffe No. 2:

CCS describe supplier selection as a key stage in public procurement, where we procurers gather information on and make assessments of the prospective bidders’ credentials before considering tenders. “This includes gathering information about companies’ track records, financial credentials, whether they have been involved in corruption, whether they meet various selection criteria, and so on”.  It’s this “and so on” that is virtually glossed over in the guidance and questionnaire.

Where are the questions and guidance on the evaluation of selection criteria underskills, efficiency, experience and reliability. [EU Article 58.(c) and (4). UK Reg 58._(1)(c) and._(18)]?

Like the European Single Procurement Document, there are no questions under Technical and Professional Ability regarding skills, efficiency, experience and reliability. Merely lists of works, technicians, systems, records, compliance certificates “and so on”.

These facts cannot be solely used to fully evaluate, at selection stage, the following:

  1. Skills – merely that people are qualified to perform skills, not that they have them.
  2. Efficiency – not one question about how they achieve efficiency.
  3. Reliability – merely that they may have had some satisfactory sign-offs, and selected referees have confirmed that.

Will procurers take the trouble to create their own project specific questions, or will they merely follow the standard questions?

Gaffe No. 3:

CCS typically use the words “should” and “may”, rather than “shall” or “must”. This allows the reader to believe he/she may be obliged to carry out the requirement, but when push comes to shove, there is no such obligation.  If CCS believe that a certain thing must be carried out, why is that not unequivocally stated?

For example, under Technical and professional ability: Past Performance “You mayevaluate the past performance of a potential supplier.” Under Suppliers Past Performance – central government organisations: “This advice should be followed for relevant central government procurements.” But under Q8.4 Suppliers’ Past Performance, this question should only be included by central government contracting authorities.

Also in guidance paragraph 25. “You should use the PAS91 PQQ for works contracts (including the procurement of goods and services needed in relation to the works).”   So is that “you should, but we know that PAS91 hasn’t been updated to comply with ESPD, PCR 2015 and CDM 2015, and we also know that the EU Directive and the Public Contracts Regulations suggest you shouldn’t use PAS91”?

Gaffe No. 4:

Under Guidance paragraph 47. CCS suggests that credit checks may be used (but not exclusively) as a means of selection. Wasn’t this the very form of financial selection criteria that was decried a few years ago as non-transparent and therefore unfair?  Is CCS really giving procurers the green light to what was widely objected to, particularly by SMEs and their trade organisations?

Gaffe No. 5: (and possibly the worst of all)

Under Guidance paragraph 3. CCS suggests that the Selection Questionnaire is compliant with the requirements of the ESPD, and para 8. suggests three ways in which the Selection Questionnaire may be used:

  1. Using the Selection Questionnaire provided.
  2. Direct candidates to the EU electronic ESPD (and provides a mind numbing description of the ESPD process)
  3. Provide access details to an e-procurement system that asks the standard Selection Questions. How many systems offer that off-the-shelf facility from 9 September?

If CCS wanted to produce an ESPD compliant standard Selection Questionnaire, why did they not just use the ESPD format in the same way that Scotland did?  The Scottish ESPD may have its faults, but at least it tries to ensure that procurers can comply with Public Contracts Regulations without challenge. 

Positives

There are some positives – Apprenticeships are included, Supply Chain Management is referred to and Project Specific Questions are encouraged. However, I’m not convinced that this new Guidance and Questionnaire is clear, or even encourages SMEs as was Lord Young’s original intention.

Could try harder.

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Procurement Policy Notes: Guidance or Propaganda?

The UK Government’s Crown Commercial Service has issued Procurement Policy Note 07/16 that at best is unclear and at worst wrong.  The guidance states that all sub-central public contracts valued over £25,000 should be advertised in Contracts Finder, not only before the contract is tendered, but also when it is awarded.  Guess what? Although they may like that to be the case, they’re not only misleading, they’re also wrong.

There’s even a disclaimer that the PPN should be read alongside “Guidance on transparency requirements for publishing on Contracts Finder,” where readers who access the link will find just how wrong the PPN is.

The obligation in the Public Contracts Regulations 2015 to advertise prospective contracts on Contracts Finder only applies where a public body advertises a contract award opportunity, and the regulation then goes into some vague detail about what constitutes advertising.  It does not apply where an opportunity is not “advertised”

For example, an opportunity is not advertised where it makes the opportunity available only to particular economic operators, for example companies appointed to a framework.  Neither is it advertised (and this is where the regulation gets vague) when companies have been selected via an “ad hoc” list.  The complication comes when deciding how ‘ad hoc’ is defined and how to set it up.  Surely the public body would advertise openly, thereby requiring an advert in Contracts Finder.  Or does the Head of Procurement use other methods to set up this ‘ad hoc’ list?

There are two specific circumstances where a contracting authority is required to advertise a below EU threshold contract publicly:

  1. “cross border” interest or
  2. EU based or other grant funded contracts where the conditions require public advertising.

Beyond this, CCS’s further guidance puts the onus on a Contracting Authority to interpret the regulation.  “Where a contracting authority is satisfied it is lawful not to advertise an opportunity and chooses not to advertise the opportunity at all, the requirement to advertise on Contracts Finder does not apply to that contract.”

Well that’s not frightening at all is it, except the Procurement Officer is petrified about his/her level of legal satisfaction.  What’s more, the CCS explain that “This may be the case where, for example, a contracting authority has a standing order stating that advertising is not required for contracts with a value below a certain amount, and (note, not ‘or’ ) there is no legal requirement to advertise the contract.”  So we go back to the procurement officer’s level of confidence in his legal satisfaction.

The publication of award notices in Contracts Finder is an even more complicated issue.  Regulation 112.—(1) states that “Where a public contract is awarded, the contracting authority shall, within a reasonable time, publish on Contracts Finder”  There are no “if’s or but’s”, any sub-central Contracting Authority awarding a public contract above £25,000 must publish that award, whether the contract opportunity was advertised or not.

So, to restate my original question, is this PPN 07/16 clear and unequivocal helpful advice, or is it an attempt to create the illusion of an obligation, where none exists?

(Note: The facetious comments in this post are mine entirely and have no connection with the thoughts or opinions of Tim Oakley, Head of Consultancy, LHC)

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BREXIT: Can’t live without regulations

Over the past three weeks, I’ve read and heard (and in a couple of cases even written) articles and podcasts on the implications of BREXIT on public procurement, data protection, standards and other strands of regulatory control.  In the main, they broadly state that the UK can’t and won’t throw away the EU directed UK Regulations.  We won’t be descending into a state of anarchy or even true independence.  We will continue to regulate ourselves in the same way that we have done over the past few decades.

It’s almost as though the UK management and administration just can’t exist without the red tape that we have subjected ourselves to but have also, ironically, railed against.

I’m not a ‘Brexiteer’, I’m not even a ‘Brexit means Brexit’ eer, as I firmly believe that collaboration is the only way forward.  As Tony Giddings, former partner in developer Argent stated in BUILDING on 15 July 2016: “It’s the whole idea that we are one world and we should be looking at collaboration and consolidation rather than separation.”  It’s about extolling European co-operation over fragmentation and isolation.

Of course, the EU is not right and requires reform, but reform should be achieved from inside.  The situation is not improved by throwing away past achievements and ploughing our own furrow.  Indeed, UK will not be scurrying around trying to replace past achievements; we will still be subject to the same so-called ‘red tape’.  We will still be part of the continent of Europe and we will still collaborate with our European neighbours; we will still be part of the World and will likewise continue to collaborate with countries around the globe.

In the new primary language of the European Union – “Plus ça change, plus c’est la même chose*”

Jean Baptiste

 

 

* Jean-Baptiste Alphonse Karr in Les Guêpes January 1849

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Kitchens, Computers and Leave

Motoring up and down the country, from East to West and round the M25, I am bombarded with hoardings attached to motionless farm vehicles or abandoned lorries, inviting me to login to one web site or another to purchase kitchens or computers, attend a questionable night club or fire paintballs at unsuspecting mates.  However, as we approach this momentous referendum, a more insidious message is now being displayed – ‘Leave’.  The thought must be that a subliminal message will be delivered straight to the brain, and the general motoring public will be unable to prevent their hands from hovering and then placing a mark against the ‘Leave’ box.

There is nothing more likely to make me rebel against such a subliminal instruction.  This even more likely when that message is delivered by politicians who make a habit of raising my hackles.

Boris is a buffoon, whom I first encountered making a complete fool of himself on ‘Have I Got News For You?’  Since then he’s buffooned himself through Boris Island, Boris Calling In Planning Rejections, Boris’s Uxbridge Campaign and numerous other irritating Borisisms.

Gove is a jumped up BBC researcher, who believes he knows better than any profession he researched.  They let him loose on Education with disastrous results; heavens knows what he’ll do with Justice.

Farage (predictive text suggested “fat-age”; perhaps I should have stuck with that)  – I have nothing but disrespect for the gurning, conceited imbecile.

So how would I like UK’s future to be determined by a buffoon, jumped up researcher and an imbecile?  In the words of the great departed magician, Paul Daniels, “Not a lot!”  If you added The Hunt, my disrespect would be complete.  However, Jeremy seems to be towing the Jeremy line and is putting his spinning behind ‘Remain’.  It pains me to say “Good for you,” but for once, for whatever his personal political reason, I agree with him.

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If Jeremy Hunt ran his own business

Any company boss who rides roughshod through employees’ genuine concerns and wishes is unlikely to survive for long in business.  It may well be that he/she will effect a temporary improvement in the company’s bottom line, but eventually the business will see a downturn in its fortunes.  Such downturn will occur through a reduction in employee morale, a lowering of the ‘health and happiness’ index, poor staff retention, an inability to recruit or a combination of all four.

So why, in this enlightened age of employer responsibility, is a man who has a series of failed businesses and departments behind him allowed to ride roughshod through the lifeblood of the NHS?

How can David Cameron maintain support of a person who purports to have skills in Public Relations, but who has woefully failed to demonstrate those skills in his short political life?

As a sound bite, “7 day National Health Service” is bound to attract support from a public whose faith in the NHS has been eroded by mismanagement, insufficient funding and reduced services.  But look deeper into the sound bite: the Headline destined for the Redtops, and you will find flawed logic, lies and misinformation.

The NHS already runs seven days a week, or should I be more accurate and confirm that ‘junior’ doctors already run the NHS  seven days a week.  It is true that there are probably not enough support facilities available – scans, X-rays, blood tests etc., and maybe there is a demand for weekend consultants’ clinics.  However, such demand is possibly fuelled by the desire of some patients not to intrude on their work time, so the inevitable result is an intrusion into someone else’s non-work time, let’s call it ‘anti-social time’.

So what is this “7 day National Health Service” all about, if ‘junior’ doctors already contribute to staffing the NHS for seven days a week.  Clearly it’s about squeezing seven days into a five day a week budget by reducing the periods referred to as ‘anti-social.’

In order for that to happen, the NHS managers have created shift patterns for ‘junior’ doctors that are unsafe.  They include leave days that are squeezed in between night or late shifts, together with several weekend day and weekend night shifts in sequence.  The shift requirements in many cases are just debilitating.  A worn out doctor is an unsafe doctor and an unsafe doctor creates an unsafe NHS.

You will also find that many aspects of the imposed ‘junior’ doctors’ contract openly defy other principles set out by the UK Government, in terms of equality and non-discrimination.  But Jeremy Hunt’s response appears to be that this is acceptable collateral damage.  ‘Cost effectiveness’, the Government’s excuse for swingeing cuts, is put forward as the reason for the proposed changes.  I believe they should look at another policy that is doing the rounds at the moment ‘Social Value’.

What is the negative value to the country of producing a demoralised, ineffective, broken National Health Service?  Because that is what will become of Hunt’s insistence that he is right and everyone else is wrong!

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The Engine Room: The heart of the ship.

Allegories sometimes have a habit of throwing up unintended meanings.  Take, for example, the notion that an organisation is driven by its Engine Room, and relate it to the Engine Room of a ship.

An Engine Room only powers a ship; it has no ability to steer in the right direction without signals from the bridge.  Indeed, the Engine Room isn’t even aware of what the right direction is.  It is the responsibility of the Captain and the First Officer to use their skills to steer the ship to the correct destination and send those signals “Hard a Port”, “Hard a Starboard” etc. to the Engine Room.  They may delegate certain aspects of running the ship to the Bursars, Chief Cooks, Maintenance Managers, Chief Engineers etc., who will then delegate further, setting various objectives.  But those objectives have to be related to the direction set up on The Bridge.  If the Captain and First Officer are missing from The Bridge, the ship will wander aimlessly across the ocean.

Intel Inside only powers a computer because Bill Gates has set a course for success and has enthused his Managers to produce an excellent product.  Steve Jobs had the same function at Apple.

Any team needs a Captain, a Leader, who leads positively.

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