The new Construction (Design & Management) Regulations 2015 (“CDM 2015”) came into force on 6th April 2015 and introduced the role of Principal Designer (PD) to replace the CDM Co-ordinator. The new role is set out in regulation 11 of CDM 2015 which states the Principal Designer is to “plan, manage and monitor the pre-construction phase and coordinate matters relating to health and safety during the pre-construction phase to ensure that, so far as is reasonably practicable, the project is carried out without risks to health or safety.”
Regulation 5(1)(a) states the PD must be a “designer with control over the pre-construction phase”
So can a Design & Build (D&B) contractor be a Principal Designer? The answer is yes and no and depends upon the contract
It is highly unlikely a client will ever employ a D&B contractor early enough for it to carry out the entire PD role. A client will probably appoint an architect to fulfil the role in the early stages (note if the client does not appoint anyone he has to undertake the role himself) and then ask a D&B contractor to assume the role when it is appointed. However the contractor cannot assume retrospective liability for the PD role undertaken by the architect, this is not permitted by the Regulations. The architect or whoever is appointed at the outset always retains liability for its own performance. Even if the architect, as frequently happens, is novated to the contractor, the contractor cannot accept the novation of an existing appointment between the client and PD because the architect has to retain responsibility for its PD duties. Following the novation, the PD will revert to being an architect providing services to the contractor. The appointment would have to be altered between the contractor and architect to reflect the revised role. So provided it is a D&B type contract, it is possible for a D&B contractor to assume the role of PD.
However D&B contractors should not undertake the role under a non design and build contractual arrangement since it is highly unlikely a contractor would have the required level of control over the design process. In this type of contractual arrangement, it is more likely to be the architect who would have the required amount of control over the design process.
