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TIPS ON PRINCIPAL CONTRACTOR ‘DAMAGE LIMITATION’

How the PC can reduce risk of liability for contractor performance

Reports of HSE prosecutions published on this website often show that where a contractor has made an error leading to an accident, or poor conditions found by HSE, the project Principal Contractor (PC) will often also be held accountable for the failure.

At one level this is quite appropriate. The PC takes the plaudits when contractors succeed so should perhaps be prepared to take the brickbats when the contractors they engage fail?

However, the consequence can be negative on the attitudes of PC staff who often believe the business has put as much effort as possible into managing the project yet a ‘one off’ error by A N Other Contractor lands the PC with an HSE Fee for Intervention, Enforcement Notice or even a Prosecution.

Project staff may ask – Why should we bother when whatever we do we are blamed for contractor error? What steps can the PC take to reduce the likelihood of ending up in this depressing position?

We suggest the PC approach should be based on the Four S’s – Selection, Standards, Supervision and Self-Monitoring – which will also help to deliver compliance with key aspects of PC CDM 2015 responsibilities.

Selection

Choose contractors on basis of observed standards of prevention. See the contractor working and seek good evidence regarding the H&S standards delivered on live projects.

CDM 2015 requires the PC to be satisfied that the contractors engaged possess the necessary skills, knowledge, experience and organisational capability (SKEC) to work safely on the specific project.

Sensible structured and focussed effort at this stage will avoid management problems during the construction phase.  Do not worry unduly about how contractors assess risk or prepare their method statements. Concentrate on the outcomes.

Standards

Each contractor needs to know the ‘bottom line’ or ‘big ticket’ H&S standards which the PC will insist on at all times. Too often contractors worry about matters which should be lower down the order of priorities.

The PC must agree these matters with owners, directors and senior managers of contractors e.g. for a groundwork contractor these matters might be (a) assessment and implementation of excavation support system  (b) sound and maintained plant and (c) properly trained plant operators and (d) communicated systems of work.

A clear and simple CDM 2015 Construction Phase Plan should set out the PC’s approach and identify the significant risks and precautions on the project which contractors must manage at all times.

Supervision

CDM 2015 requires each contractor to plan, manage and monitor the construction work carried out under their control. By contrast the PC must plan, manage and monitor the construction phase.

The PC must insist that contractors supervise their work effectively at ALL times. HSE has made it clear (CDM 2015 Legal Guidance para 128) that:  “Principal contractors do not have to undertake detailed supervision of contractors’ work”.

The contractor Risk Assessment and Method Statement (RAMS) will be central to this process and should be the basis on which the contractor supervises their work. Contractor supervisors must be trained to deliver this effective supervision.

Self-Monitoring

Contractors must also monitor their own performance (CDM 2015 requires the contractor to plan, manage and monitor). This monitoring should include active and reactive and information.

By contrast the PC should monitor (a) the results of monitoring undertaken by each contractor and (b) any further intelligence acquired during PC management of the construction phase.

Any concerns identified by the PC must be acted upon and communicated immediately to the contractor for ongoing action at a senior level.

The PC must take every opportunity to stress to contractors that effective precautions must be maintained at all times and that “good health and safety”  is about the preventive measures implemented and NOT about the paper outputs produced!

Conclusion

Following these Four S’s will not guarantee avoiding accountability for the failures of contractors. It will always be a matter of damage limitation.

However, these actions should reduce the chance of contractor errors / worker injury and go some way to demonstrating to HSE and others that the PC took all reasonable steps to plan, manage and monitor the project construction phase.

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