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David Rintoul writes for Construction News on Soft Landings Framework: The contractual issues

09 August 2017 #Construction #Press


The BSRIA Soft Landings Framework has become widely used in the industry on many different kinds of contracts – but what issues should contractors be aware of?

Soft Landings is the BSRIA-led framework process dating back to 2009 and adapted in 2011 by the government for its own Government Soft Landings framework. It was designed to assist the construction industry and its clients to deliver better buildings.

This process has gained significant traction over time, the BSRIA Soft Landings Framework being used on many different private and public sector contracts. Furthermore, those working in the public sector must from 2016 be able to deliver soft landings as a competence in the Crown Commercial Services framework.

Soft landings requirements

Soft landings requires clients to appoint designers and constructors to stay involved with their new building beyond practical completion for an initial three-year post-occupancy evaluation period.

This in turn assists both facilities managers and occupiers to understand how to control and best use what they have been given, during which time energy use and occupancy satisfaction can be monitored, as well as the operation of systems that might need seasonal adjustment.

“Early appointment of all key consultants and identification of their respective soft landings roles and responsibilities is essential, not least because this helps to ensure early identification of the project brief and expectations”

At the end of the three years the building’s performance can be fairly judged against the targets set at design, and any discrepancies accounted for. This requires the Soft Landings Framework to be considered at the outset.

So what are the crucial contractual issues that must be considered to ensure the soft landings process works effectively?

Roles and responsibilities

It is important that all project participants sign up to the framework, including the facilities manager.

Early appointment of all key consultants and identification of their respective soft landings roles and responsibilities is essential, not least because this helps to ensure early identification of the project brief and expectations.

The requirement to sign up to and adopt the recommendations of the framework can be mandated through incorporation into the design team appointments and build contract for use on the project (if needs be by amendment to applicable standard forms).

“As well as being used for private and public sector work, soft landings can be used in conjunction with any chosen procurement methodology”

As part of the assumption of soft landings roles and responsibilities, the client should consider the appointment of a soft landings ‘champion’ for the project duration, whose role in broad terms is to oversee, monitor and co-ordinate all project compliance with the soft landings process. Anecdotal evidence suggests this role can usefully be performed by the facilities manager.

The soft landings roles and responsibilities sit alongside and are additional to the standard form or bespoke contractor and design consultant duties and services typically adopted on major projects.

The framework acts as a guide, comprising a series of process recommendations to all project participants. It is not therefore prescriptive in nature.

As well as being used for private and public sector work, soft landings can be used in conjunction with any chosen procurement methodology, whether that be traditional, design and build, construction management or other. Design and build, with the usual adoption by the contractor of risk for time and cost overrun, should not hinder the soft landings process.

Post-occupancy period

As part of the early identification of performance targets to be met, consideration should be given to the definition of practical completion within the build contract and consultant appointments. This could mean, for example, that achieving practical completion could be agreed to be conditional upon review and approval by facilities managers of operations and maintenance manuals, and/or testing and commissioning of M&E systems.

Validation of testing and related method statements, in the context of the originally agreed strategic brief and possibly with help of 3D modelling, is a very important component in ensuring the building performs as intended.

Following completion, the three-year post-occupancy evaluation period, which extends therefore beyond the usual 12 months defects rectification period, needs to distinguish between defects and performance issues of a building.

“The use of IPI helps to avoid the blame culture historically prevalent in the industry, and so encourages greater collaboration and alliancing”

While defects can arise in design, materials or through poor workmanship, contractual treatment of these will differ from resolution of ongoing performance issues, to include, for example, issues around energy performance, usage, and fine-tuning of environmental and energy monitoring systems.

These will be resolved through ongoing operational support, under maintenance contracts to be let, together with seasonal commissioning and the help of ongoing occupier evaluation and education.

Finally, a related issue is project insurance.

While almost all projects are undertaken with the traditional insurance provisions in place covering, for example, contractor’s all risk, third party and consultant (and, where appropriate, contractor) professional indemnity liability, some public sector soft landings projects have adopted what is known as the Integrated Project Insurance Model (IPI), initially published in 2014 and reconfirmed in the 2016 Government Construction Strategy.

In providing integrated insurance for all project risks, to include time and cost overrun, the use of IPI helps to avoid the blame culture historically prevalent in the industry, encouraging greater collaboration and alliancing between all project participants and so fulfilling the intent behind the Soft Landings process and framework.

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David Rintoul

David Rintoul
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E: drintoul@clarkslegal.com
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