Article Safety

Ground investigation industry urged to take heed of new EC regulations

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Tags: ground investigation regulations vehicles

In April 2007, yet another piece of EC Regulation came into force. This relates to drivers’ hours and the need for tachographs to record the information. While the regulations were prompted by the need to revise the conditions for those that spend most of their working day actually behind the wheel as drivers, they do have an impact on the ground investigation industry.

The new rules and regulations are complex but below is an attempt to summarise the important points. Acknowledgement and thanks is due to the British Drilling Association (BDA) who have put a lot of work into ploughing through this potential minefield. The Regulations are available in full from the Vehicle and Operator Services Agency (VOSA) in the document GV262 (Second Edition 12/2006) “Drivers Hours and  Tachograph Rules for Goods Vehicles in the UK and Europe”.

The summary below developed from a series of meetings between the BDA, VOSA and the Department of Transport.

The regulations define an “in scope vehicle” as one capable of carrying goods for commercial purposes and over 3.5 tonnes maximum permissible weight. To quote VOSA, this means “either the maximum permissible gross weight of the vehicle and that of any trailer (added together) or the towing vehicle’s maximum permissible train weight, whichever is the less.” “In scope vehicles” have to be fitted with a tachograph.

Dual purpose vehicles are classified as being capable of carrying goods and towing trailers or drilling rigs. Such vehicles are typically used within the ground investigation industry for towing cable percussion drilling rigs. The words “capable of carrying goods” are important since tools of the trade may be excluded but recovered samples would not.

A trailer is defined as anything that is trailed so includes a cable percussion rig, compressor, bowser or other mobile plant. This definition comes from a Court ruling.

As we all know the tachograph records drivers’ hours. From the 1st May any new ‘’in scope vehicle’’ must have a digital tachograph conforming to EC regulations. Analogue or digital tachographs are allowed in vehicles supplied before this date. Some older vehicles may not be suitable to take digital tachographs so check with the manufacturer before deciding on which type to buy.

EC Drivers’ Hours Rules are complex and require detailed and careful record keeping. They apply to drivers of ‘’in scope vehicles’’ fitted with a tachograph (when 50 kms or more from base) other than drivers who never exceed 10 days driving over a rolling reference period, typically of 17 weeks. UK Domestic Drivers Hours Rules apply to drivers “of in scope vehicles” fitted with a tachograph when within 50 kms of base.

Drivers subject to EC Rules must not exceed an average weekly driving/working time of 48 hours calculated over the rolling reference period. The calculation of the 48 hours has to include all hours worked (driving and other work) wherever incurred. VOSA have stated that there is no opt-out for individuals wishing to work longer than an average 48 hour week, but break periods and periods of availability will not count as working time.

Because the rules are so complex it is advisable that anyone affected consults the Regulations very carefully. If in doubt seek legal advice.

Greg Southgate
RSA Geotechnics Ltd

Article Safety

Construction (Design and Management) Regulations 2007 (“CDM”) – Questions and Answers

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Tags: hazardous regulations risk safety

Why was it necessary to revise the CDM Regulations 1994?

The new Regulations came into force in April 2007.  The purpose of the updated Regulations is to focus on the virtues of effective planning and management of construction projects from inception, i.e. the design concept.  The Regulations seek to engender a greater emphasis upon  health and safety considerations in order to reduce the risk of harm to those who build, use and maintain structures, and to address the generally accepted trend that the construction industry remains disproportionately hazardous to those working within it.

The aim is to enable members of the construction industry to work together to adopt a more health & safety conscious management programme, by:

  • Simplifying regulation;
  • Improving planning and management from the design stage onward;
  • Early identification of risks;
  • Encourage cooperation and working together;
  • Reduce bureaucracy and raise standards.

What are the CDM Regulations 2007

The new Regulations are divided into 5 parts:

Part 1 – Application and definition of the Regulations;
Part 2 – General duties that apply to all construction projects;
Part 3 – Additional duties that apply to notifiable projects;
Part 4 – Practical requirements for all construction sites;
Part 5 – Transitional arrangements and revocations.

 

What type of project is notifiable?

A notifiable project is one that will last longer than 30 days (including holidays and weekends) or which will involve more that 500 person days of construction work (calculated on a normal working shift).  Domestic projects for those who live, or will live, in the premises and are not related through trade, business or undertaking the project, are not notifiable.  It is the responsibility of the new CDM Co-ordinator to notify the project.

What is the role of the CDM Co-ordinator and the Principal Contractor?

On all notifiable projects a CDM Co-ordinator and a Principal Contractor must be appointed.  The co-ordinator is responsible for advising the Client and notifying the HSE together with managing the communication of the construction team and creating the health & safety file.  The Principal Contractor is responsible for planning, managing and monitoring the progress of the works.  In addition, they should ensure that the Client is aware of their duties and that the Co-ordinator is appointed and information is provided for the health & safety file.

 

By what criteria is competency measured under the new Regulations?

There are 3 stages to competency:

  • Basic understanding of risk and how they are managed;
  • Sufficient understanding of the tasks to be used and the risks they involve;
  • The necessary experience and ability to carry out those duties.

The basic premise is, competent people are safer people.  It is important that individuals and organisations recognise their own limitations in this regard.  The Approved Code of Practice provides valuable guidance when addressing the question of competency.

 

What if the project has already begun?

The 2007 Regulations will apply.  There are provisions dealing with the transition period between the old and new Regulations but, importantly, the competency element must be acquired within 12 months.

 

Who are the new dutyholders?

Specific duties are imposed upon Clients, the CDM Co-ordinator, Designers, Contractors and Principal Contractors.

Clients:

They cannot now transfer their liabilities and duties to third parties, however, an agent acting on an existing project, under the CDM 1994, can continue in that role until the end of the project or April 2012, whichever is the earlier.

The Client must also ensure that the project is suitably managed and all relevant  required information is provided.

Designers:

The Designer must principally comply with the Workplace (Health, Safety & Welfare) Regulations 1992 and must not begin work until the Client is aware of its duties.  Further, all reasonable steps should be taken to ensure that the other members of the construction team, including the Client, have been provided with sufficient information about the design.

With regard to notifiable projects, a Designer should not start work until a CDM Co-ordinator has been appointed and  they have sufficient information about the design to enable them to comply with their duties.

Contractors:

The Contractor should not start work until the Client is aware of its duties and the Contractor has ensured that any contractors or sub-contractors that it intends to use are informed of the minimum amount of time they will be allowed to plan and prepare.  Every worker should have sufficient information and training for their particular work.

Principal Contractors:

Their duties fall into 3 categories:

  1. Main duties;
  2. Duties related to the construction phase plan; and
  3. Co-operation and consultation.

Overall, Principal Contractors must plan, manage and monitor the construction phase of the project to encourage co-operation and co-ordination between the relevant construction team members.  In addition, they must draw up the construction phase plan, ensure that every worker has a sufficient site induction, is provided with information and training and consult with the representatives of the workforce on matters of health, safety and welfare.

What is a health and safety file?

The CDM Co-ordinator is responsible for creating and revising this document for notifiable projects.  They must liaise with all of the relevant members of the construction team to ensure that the file contains information for the future construction, maintenance, refurbishment or demolition of the structure, in order that the future work is carried out safely.

Are there any strategies I can adopt for a ‘best practice’ approach?

It is important that you integrate health, safety and risk management into the corporate culture by considering the level of “risk”, reducing or eliminating the “risk” wherever possible and keep the “risk” under review.  A paper trail of this process will be invaluable when you audit your compliance with the Regulations or you are asked to illustrate your adoption of the “best practice” approach.

Where do I go for help?

The Approved Code of Practice accompanies the new 2007 Regulations and assists with practical guidance on interpreting and applying the Regulations as well as suggesting ways of improving cooperation and coordination.

Berrymans Lace Mawer

Article Contaminated Land

Managing residual risks of land contamination

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Tags: brownfield environmental insurance

The successful trading, development and regeneration of brownfield sites requires stakeholders to acknowledge and manage environmental risks effectively to realise
the potential returns. Whilst many risks associated with the project require careful consideration, the management of environmental risks can have a profound effect on the success, or failure, of a development project. Get it “right” and the developer and investment partners can reap immense rewards. Get it “wrong” and environmental issues have the potential not only to jeopardise any financial gain on the project, but present long-term liabilities to those involved.

Of course, developers cannot simply adopt a “zero risk” attitude to environmental issues when it comes to brownfield sites, particularly given the current climate of increasing costs of landfilling. Avoiding sites with actual or perceived environmental
risks could result in missed opportunities as a result of deciding not to proceed with a purchase, however budgeting for overly stringent remedial standards during development can risk losing a site to a less conservative competitor. It is not only major regeneration schemes that require careful assessment. Arguably, the adoption of adequate risk management procedures is even more important for small brownfield sites, where margins will tend to be tighter.

Residual Risk and Uncertainty
The drive towards the use of “innovative” remediation techniques, particularly those involving the in-situ treatment of soil or groundwater pollution, brings with
it the need to address residual contamination risks.

The application of risk-based remediation criteria, whilst an entirely credible and practical solution for modern day brownfield site regeneration, is designed to reduce risks to acceptable levels based on the current status of scientific knowledge, legislation, and (perhaps even more importantly) enforcement practice. Predicting future trends in any one of these factors is prone to significant uncertainties. One only has to look at the progress made (or lack of it) on Soil Guideline Values in recent years, and the Water Framework Directive to realise that this is an area ripe for changes in enforcement practice, raising the spectre of cases being re-opened some years after remedial works have been “signed off” by regulators.

Developers will, understandably, want to realise a profit on their investment as quickly as possible, and will therefore tend to have a relatively short-term interest in a site. Long-tail liabilities associated with residual contamination will therefore typically not be of primary concern. However, other stakeholders such as investors,
lenders and sellers (particularly if the latter are the original polluter) may seek additional safeguards to protect themselves in the event that environmental risks are not entirely addressed through remediation. In many cases, it may be merely the perception of environmental risk, rather than specific risk factors that cause concern.

Solutions
The increasing availability of fixed price remediation contracts may seem to be the perfect panacea for developers looking to avoid the risk of cost-overrun. But what happens if additional contamination is found that falls outside the scope of the contract, either during or after completion of the remedial works?

The first reaction may be to try to take action against the environmental consultant or contractor responsible for designing and implementing the remediation scheme. This is unlikely to be successful, unless either party has been clearly negligent, or the
engineered solution has failed within the warranty period. General liability and property insurance policies will almost certainly offer no protection from ongoing ground contamination liabilities. By contrast, environmental insurance can offer a
cost effective solution to residual contamination risks.

Environmental insurance policies cover statutory clean-up requirements, third party claims for bodily injury and property damage, and associated legal expenses, resulting from contamination. The environmental market has softened in recent years, largely through increased competition, resulting in premium levels being approximately half what they were three years ago for comparable risks. Price is not everything of course, but there is also greater potential to secure coverage enhancements now than in previous years.

Whilst policies can be placed quickly and efficiently, it is important to use a specialist broker who is familiar with insurance market, policy wording and to ensure that any policy placed is tailored to meet the specific needs of the Client and project.

Do Claims Succeed?
In short, yes. Environmental insurance is a relatively
young insurance market, nonetheless we are seeing a maturing claims experience in the UK and elsewhere. During a recent survey by Willis, environmental insurers
indicated that up to 1 in 10 policies see claims activity, a trend that most insurers agree is increasing, both in terms of the frequency and magnitude of loss.

Case Study 1
A car dealership relocated one of its showrooms, with the intention of selling the site for residential development. Following the discovery of a widespread plume of petrol contamination caused by a petrol filling station formerly located at the site, remedial plans were prepared in agreement with the regulators. The petrol plume affected an
underlying aquifer, and also extended beneath surrounding residential properties.

The risk assessment reduced the uncertainty to a level that the developer was willing to take on the risk of funding the remediation works, in return for a purchase price reduction. Although there was general confidence that the remedial works would be successful in reducing both the risk and uncertainty the developer was concerned that the residual risk exposure could be significant, particularly as they were required to indemnify the seller. The developer therefore purchased environmental insurance to safeguard against the possibility of future additional clean-up costs or third party
claims following completion of the remediation, for example as a result of “rebound” of the plume or future health impacts caused by inhalation of petrol vapours by residents.

Case Study 2
This illustrates a recent example where liabilities of residual contamination, the costs of which ran into six figures, were successfully claimed on an environmental insurance policy.

A landowner implemented remedial works following the discovery of hydrocarbon contamination beneath their site. The original polluter had ceased trading some years earlier, leaving the current owner liable for the remediation, which was planned and undertaken with the agreement of the regulators.  Upon commencement of the works, the landowner also took out an environmental insurance policy to cover
the possibility of additional future clean-up works being required as a result of unidentified contamination being present beneath the site. Due to site access constraints, it had not initially been possible to investigate in all areas.

The remediation achieved the required target, and was duly “signed off” by the regulators, upon which the environmental insurer was obliged to provide for any further “on-site” clean-up costs under the policy terms. Following this, additional
contamination was identified which required further remediation, the costs of which were met by the environmental insurance policy.

For more information or to discuss other environmental risk transfer solutions, please contact

Fiona Gray
Willis Environmental Practice
Tel: +44 (0)207 488 8111
grayf@willis.com

Ten Trinity Square
London EC3P 3AX
www.willis.com

Willis Limited, Registered number: 181116 England and Wales. Registered address: Ten Trinity Square, London EC3P 3AX. A Lloyd’s Broker. Authorised and regulated by the Financial Services Authority.

Article Data Management

Diggs ploughs on in quest for improved data handling

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Tags: Geoenvironmental Geotechnical

The DIGGS (Data Interchange for Geotechnical and Geoenvironmental Specialists) working group is continuing.  DIGGS is an international initiative to extend the data transfer format not only to other countries, but also to other parts of the geotechnical industry, such as piling and infrastructure management. It has been based on the AGS data format, which is the only truly international data transfer format in use. At the same time the opportunity has been taken to implement modern IT technology such as XML and GML.

DIGGS is promoted by:

  • The United States Federal Highways Administration
  • The United Kingdom Highways Agency
  • Twelve US Departments of Transport
  • The United States Geological Survey
  • The United States Army Corps of Engineers
  • The United States Environmental Protection Agency
  • CIRIA (the UK Construction Industry Research and Information Association)
  • AGS (the UK Association of Geotechnical and Geoenvironmental Specialists)
  • COSMOS (Consortium of Organizations for Strong-Motion Observation Systems)
  • The University of Florida

Further details of DIGGS can be found at   www.diggsml.com  and www.diggsml.org

DIGGS will be implemented through a group of SIGs, (Special Interest Groups) who will look after the national and disciplines within the geotechnical industry.   In the UK this will be the AGS and the next version of the AGS data format, which has the development title of “AGS4”, will be DIGGS compliant.  Work is underway to ensure that this version is thoroughly integrated with the interests of the UK Ground Industry, including the provision of specifications and contract clauses for its use.     Documentation for the users, developers and managers of companies using the format is in preparation.

Before it can be adopted, it is essential that the relevant software is available to implement this new format.  Whilst specialist software will be required to obtain maximum advantage, the fact that the format is in the universal XML language will open up the possibilities of using many other software packages directly.  This will govern the release date of the format, and it is inevitable and intentional that AGS3 will continue for some time into the future. It is intended that software to convert AGS3 files to AGS4 will be made available.

DIGGS will build on the AGS data format and be an opportunity to promote the work carried out by the Ground Investigation industry, to raise the profile of work and provide the means to streamline the work process. It provides the next steps for improved handling of data at all stages of a project from investigation through to construction and completion.  It will include geotechnical, geo-environmental, construction and asset management information within one system.

 

CALL FOR PAPERS

A Workshop will take place on 18 June, 2008 at the National Motorcycle Museum in Birmingham, the spiritual home of the AGS Data Format group.  The Workshop is provisionally entitled “Site Investigation to Piling, and the availability of Electronic data”.

Papers are invited, in particular case histories are always welcome

Article Laboratories

Two new guidance documents on ground gases

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Tags: gases Guidance

The RSK/NHBC “Guidance on evaluation of development proposals on sites where methane and carbon dioxide are present” is now available as a free download pdf, on the NHBC Builder website – www.nhbcbuilder.co.uk . (Go to building support services/technical advice and support/publications).

CIRIA’s publication on “Assessing risks posed by hazardous gases to buildings (C659)” is currently being updated and will be re-published as report C665 – “Assessing risks posed by hazardous ground gases to buildings (revised)”.  Copies will be available from late May, and advance orders for copies of this title can be purchased from the Ciria bookshop (www.ciriabooks.com).

Article Laboratories

Classification and testing in BS 5930 and BS 1377-9

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Tags: Geotechnical testing

The BSI Committee for Geotechnical Testing has been working to help provide guidance on the changes to geotechnical testing methods introduced by new EN ISO standards.

The National Forewords to the following standards have been changed and now provide clause by clause details of where the new standards impact on BS 5930 and BS 1377-9:

BS EN ISO
14688-1:2002		 Geotechnical investigation and testing. Identification and classification of soil. Identification and description

Price £72*  Member Price £36     ISBN 0 580 40481 1
BS EN ISO
14688-2:2004		 Geotechnical investigation and testing. Identification and classification of soil. Principles for a classification

Price £72*  Member Price £36     ISBN 0 580 47508 5
BS EN ISO
14689-1:2003		 Geotechnical investigation and testing. Identification and classification of rock. Identification and description

Price £102*  Member Price £51     ISBN 0 580 43574 1
BS EN ISO
22476-2:2005		 Geotechnical investigation and testing. Field testing. Dynamic probing

Price £118*  Member Price £59  ISBN 0 580 47636 7
BS EN ISO
22476-3:2005		 Geotechnical investigation and testing. Field testing. Standard penetration test

Price £102*  Member Price £51     ISBN 0 580 47637 5

These amended documents are now available.

The relevant sections in the BS documents are now superseded and BS 5930 and BS 1377-9 are being amended in the short term to remove those conflicting sections.

In the long term a much broader revision of the British Standards is necessary, not only to cater for further European test methods, but particularly following the publication of BS EN ISO 22475-1 Geotechnical investigation and testing which was implemented in March 2007.

It is important to note that where conflict arises between British and European standards the BS EN ISO documents take precedence and should be used.

Ways to order:
Contact BSI’s Customer Services team quoting reference 5390D-SA
Call + 44 (0)20 8996 9001
Fax + 44 (0)20 8996 7001
Email orders@bsi-global.com

*P&P: Charge of £5.95 UK (inclusive of VAT) added to subtotal.

 

Article Business Practice Data Management

New Construction Industry Scheme

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Tags: CIS HMRC subcontractor tax

On 6 April 2007 a new Construction Industry Scheme came into force. Though altered, the new CIS involves the same basic concept as the old scheme, whereby a contractor has to make deductions under certain circumstances when making payment to a subcontractor for construction work.

The old system of tax certificates has been abolished, and in its place a new system has been introduced whereby all subcontractors requiring payment for construction work have to be registered with HM Revenue and Customs (HMRC). Subcontractors who previously qualified for a tax exemption certificate will be registered for gross payment. Others will be registered for payment under deduction, at a level of 20%. If a subcontractor is not registered deduction is at a level of 30%.

On engagement by a contractor the subcontractor will have to provide identity details, which the contractor will check with HMRC. HMRC will confirm if payment is to be made gross or after deduction. The subcontractor’s status must be checked before the first payment is made. The contractor can assume the status has not changed for the present tax year and for the following two tax years, unless notified otherwise by HMRC.

Contractors have to submit monthly returns to HMRC detailing all payments made under the Scheme. A declaration also has to be made on the return confirming that none of the payments is in respect of a contract of employment. The contractor has therefore to satisfy himself that a relationship with any subcontractor is not one of employment.

An area of concern has been that Consultants could become drawn into the CIS net under the new Scheme. Advice received from the HMRC helpline is that site investigations procured directly by a Consultant during the planning stage of a project (i.e. before any “construction operations” (as defined under the CIS) commence would not be covered by the CIS, as they would not be regarded as “construction operations” under the CIS.  However site investigations carried out once “construction operations” had commenced would not be so exempt.

Further details can be found at the HMRC website – see http://www.hmrc.gov.uk/new-cis/index.htm

Nigel King

Halcrow

Article Data Management

Update on the Freedom of Information Act 2000

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Tags: Information

Extract from the ACE Briefing Note – 19th August 2005 “Update on the Freedom of Information Act 2000”

Introduction

On 19 August 2005 the Association for Consultancy and Engineering produced an update on their earlier Briefing Note on the Freedom of Information Act 2000 (“the Act”) which explained the key features of the Act, what the Act would mean for consultants and the exemptions that are likely to be the most relevant.  It indicated how the Act has been (and could be) used by businesses, particularly competitors, and alerted consultants on steps they should consider taking in order to reduce the likelihood of their commercially sensitive and/ or confidential information being disclosed to competitors.

By the way of a brief reminder the act came into force on 1 January 2005 and provides a general right of access to anyone, anywhere in the world, to request information held by or on behalf of any Public Authority (“PA”), in the UK.  The Act is retrospective, so allows access to information regardless of when that information was created or how long it has been held by the public authority. The Act applies in England , Wales and Northern Ireland .  The Scottish equivalent is the Freedom of Information (Scotland Act) 2002, which is similar, although not identical, to the Act.

Use of the Act by business

Although it is still early in terms of trying to predict just how the Act will be used, the US experience has shown that the biggest users are other businesses.  It is common for a company tendering for a US government contract to try and use the US equivalent of the Act to gather information held on its competitors.

ACE is aware of the least one instance when a member was advised by the PA of a request (which has been made by another member company) for disclosure of its tender documentation. The matter was satisfactorily resolved and disclosure was prevented but the incident necessitated much involvement of senior management time. If this practice were to become prevalent, the amount of lost management time in challenging such requests may well have an adverse effect on productivity in the industry as a whole, not to mention on the culture of co-operation and integration which the industry is being encouraged to foster.  Those seeking information might, in another circumstance, find themselves recipients of similar request under the Act!  

Steps to Protect your Business  

The right to request information held by a PA is subject to many exemptions, the most relevant of which to private sector businesses are (a) an absolute exemption if the requested information was provided to the PA in confidence or (b) a qualified exemption for any commercially sensitive information and trade secrets, or where disclosure would prejudice the commercial interests of any party. There is further information at the end of this briefing note on the ‘commercial interests’ exemptions. However, here are a few suggested steps that you could take in order to protect your business when dealing with PAs:

  1. If you regularly work with a PA, it is important for you find out how that particular PA intends to handle freedom of information requests. There is a ‘good practice’ recommendation that government bodies should notify businesses about requests to examine their documentation but there is no obligation in the Act for a business to be consulted before the information is disclosed.  
  2. As the PAs are not able to contract out of the obligation under the Act by agreeing overly restrictive confidentiality provisions, you should consider strengthening your contracts with PAs e.g. by adding a contractual requirement for the PA to consult with you, or at least notify you, if a third party makes a request under the Act for disclosure of information relating to your business: obliging the PA to consult with you whether the public interest test is balanced in favour of disclosure or whether disclosure would amount to substantial prejudice.
  3. Where possible, you should build in safeguards, e.g. qualifying your tender documentation by stipulating what your company considers is commercially sensitive information that should be disclosed and identifying any trade secrets. Where possible, you should get the PA to acknowledge this in writing.
  4. A good practice to adopt is to mark all correspondence and other information supplied to a PA as “Commercial In-Confidence”, or some other type of confidentiality notice. However the marking of the information and correspondence as “Commercial In-Confidence” will by no means guarantee its exemption from disclosure. Whether or not an obligation of confidence has arisen is essentially a legal question.
  5. You should ensure that employees who negotiate and deal with tenders and contracts with PAs understand how the Act may apply.

Challenging a request for disclosure

Anecdotal evidence suggested that, if you are consulted by a PA regarding a request for disclosure of your confidential or commercially sensitive information, you are advised to give the PA as much information as possible as to why the request should be denied.  This may sound obvious but it is important not to see the PA in question as an enemy.  The person dealing with the request on the PAs side may be inexperienced and possibly inundated with requests for information under the Act from all sorts of sources! You will greatly assist your case if you can provide the PA with a carefully crafted letter, setting out all possible exemptions that may apply to your information, quoting the relevant sections of the Act and/or referring to any contractual provisions or correspondence.

Clarification of the “commercial interest” exemption  

The Information Commissioner (“Commissioner”) has recently considered the prejudice to commercial interests” exemption and decided that disclosure of the price of a work of art paid by a PA to an artist would prejudice the commercial interested of the PA as well as the artist.

The brief facts of the case were as follows. In January 2005 a request was submitted to a PA, by the National Maritime Museum , for the disclosure under the Act, for documents and correspondence relating to payments made by the PA to an artist in respect of the work in an exhibition that the PA was staging.  The PA refused to disclose the requested information and a complaint was made to the Commissioner, who decided that the commercial interests exemption would apply to this information and applied the public interest test (i.e. whether it should nonetheless be disclosed in the public’s interest).

The Commissioner’s view was: “Those who engage in commercial activity with the public sector must expect there may be a greater degree of openness about the details of those activities than had previously been the case prior to the Act coming into force.“

But in certain circumstances the Commissioner acknowledged this may prejudice the individual artist and that there was a public interest in encouraging new artists and entrepreneurs to flourish.  It was further recognised that the PA would be playing a crucial role by exhibiting the artists work.  The Commissioner also recognised there would be prejudice to the artist in relation to his next sale or commission had the information been disclosed under the Act.  Interestingly, when analysing the public interest test in relation to this prejudice, the Commissioner decided that the prejudice to the artist’s commercial interests was not in itself a sufficient reason to maintain the exemption in his individual case.

This note has been produced with the assistance of ACE (Association for Consultancy and Engineering) using an extract taken from its Briefing Note on this topic as referred to above.  

The full briefing note can be found on the ACE website (http://www.acenet.co.uk/documents/FoI%20Act.pdf )

Article Business Practice Data Management

BDA audited drilling operatives

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Tags: BDA Drilling

The following is general wording suggested by BDA for all drilling operations:-

Audited Land Drilling Operatives

  1. All drilling operatives (Lead Drillers and Drillers) employed on the Contract shall hold a valid and current Audit card of competence applicable to the work and specific drilling operation on which they are engaged, as issued by the British Drilling Association Limited under its BDA Audit or an equivalent body in a State of the European Union.
  2. All drilling operatives (Lead Drillers and Drillers) employed on the contract shall hold a valid and current CSCS blue skilled (Land Drilling) card as issued by Construction Skills Certification Scheme Limited or an equivalent body in a State of the European Union.

Notes

  • With regard to clause 1, this covers the NVQ requirement as operatives are only admitted to BDA Audit after having provided evidence that they are already NVQ qualified.
  • With regard to clause 1, the words “applicable to the work and specific drilling operation” can be further defined for specific contracts. The BDA Audit card endorsements for a Lead Driller in ground investigation are one or more of the following:
  • – Ground Investigation – Cable Percussion
  • – Ground Investigation – Rotary
  • – Ground Investigation – Dynamic Sampling
  • For Lead Drillers in other drilling disciplines the endorsements are: –
  • – Drilling and Grouting
  • – Drilling and Anchoring
  • – Marine – cable percussion
  • – Marine – rotary
  • – Water well – cable percussion
  • – Water well – rotary
  • – Landfill drilling – cable percussion
  • – Landfill drilling – rotary
  • – Geothermal drilling
  • Please note that a Driller (who supports the drilling operation and was previously termed secondman) does not have any drilling discipline endorsements on his/her card.  Neither the NVQ or BDA Audit processes, at this stage, assess or endorse them for specific works.
  • With regard to clause 2, the BDA Audit does in fact require proof of this for anyone applying for BDA Audit status and thereafter on each 12 month on site Audit. But it’s possible that an individual’s CSCS card may have expired between audits, so this is why we suggest this clause as well.
Article Business Practice Data Management

Drilling competence – what’s the current proof?

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Tags: Drilling Geotechnical qualification

BDA Driller Accreditation is dead and buried. Its passing away went largely unannounced but it no longer exists. The British Drilling Association (BDA) has rolled out a new model, more fit for present and ongoing times. It’s called BDA AUDIT and features many improvements over its predecessor, being more embracing, inclusive and rigorous. With CDM 2007 making greater demands on the assessment of competence prior to workforce engagement, new BS EN geotechnical standards for auditing of drilling personnel and CSCS requirements, BDA Audited drilling operatives will supply the necessary third party proof of competence.

There’s been a sea change since the BDA Driller Accreditation Scheme came into being during 1991, some 16 years ago. The Scheme was originally introduced because of concerns about drilling quality, expressed principally by the Department of Transport and the Property Services Agency. The BDA was essentially charged, by those major clients of ground investigation, to produce a driller competence assessment system and ongoing auditing of competence. BDA Driller Accreditation was the result, becoming widely accepted by the geotechnical community and specified in contract documentation.

The same quality concerns exist today. Even more so because of the dependence on obtaining representative samples for more sophisticated laboratory testing, less experienced site supervision because of the skills shortage amongst clients and engineers to meet the volume of work, and commercial pressure. Rubbish in, rubbish out will always apply!

While BDA Driller Accreditation halted any further declines in quality, it had limitations in how far it could go to improve standards. This was partly a funding matter. Contractors were solely being asked to pay fees for their drillers to become accredited in the expectation that their drilling workforce would be employed. The reality was that non BDA Accredited drillers continued to be employed by industry clients. A company will only pay additional to an external body if it believes that a further benefit can be gained.

However the main reasons for moving on from BDA Driller Accreditation were to do with what was happening nationally. National Vocational Qualifications (NVQs, and in Scotland , SVQs) were becoming the measure of competence. NVQ assessment, conducted properly, is a far more rigorous and time involvement process. It is a government qualification and far more recognisable than any single industry sector award. The BDA grasped the opportunity in 2001 to develop and introduce NVQ Land Drilling, level 2, for all drilling operatives whatever their drilling discipline or position in the drilling crew. Since then the BDA has worked with ConstructionSkills (formerly CITB) to try and ensure consistency of assessment.

NVQ Land Drilling qualification, while supported by the BDA as a first step, is not sufficient. Any qualification is held for life, but without revisiting cannot be regarded as current competence. The ability to do a job today is not proven because of qualification in the past. Continuing Professional Development (CPD) evidence is required to maintain an individual’s status. The recent introduction of BS EN ISO 22475, part 3, on geotechnical sampling, requires that drilling operatives are audited regularly, post initial assessment – this is a European endorsement that ongoing auditing by an independent agency is required.

There are variations in the quality of NVQ assessment. Despite the BDA being involved it does not have control of the process. The BDA is highly critical that certain individuals may have become NVQ qualified through fast-track procedures, often through no fault of their own but because of lack of awarding body vigilance. This is a specialist industry and certain NVQ Assessors / Centres may not have the necessary experience to assess to the industry’s high standards.

The BDA AUDIT requirements are that any applicant is in possession of NVQ Land Drilling and a valid / current CSCS card (Construction Skills Certification Scheme card). This proves to the BDA that the individual has obtained an NVQ and passed the ConstructionSkills basic Health & Safety Test. An on-site audit is conducted on the individual by a BDA Auditor before Audited status is awarded. This initial audit covers competence, safety and equipment. Should non-conformances be identified they have to be closed off before the issue of a BDA Audited card. The card is the only proof of their status other than enquiry to the BDA office. The process repeats itself every 12 months.

The BDA took a real risk, on behalf of both sides of the industry, some 6 years ago, in deciding that NVQ / CSCS was the way forward and that a new BDA Auditing process would establish itself with the demise of BDA Driller Accreditation. It wasn’t easy giving up a completely in-house process. We do encourage AGS members to adopt this highest proof of drilling operative competence by specifying BDA Audited drilling personnel. Model clauses for insertion into tender documents are suggested below.

  1. All drilling operatives (Lead Drillers and Drillers) employed on the Contract shall hold a valid and current Audit card of competence applicable to the work and specific drilling operation on which they are engaged, as issued by the British Drilling Association Limited under its BDA Audit or an equivalent body in a State of the European Union.
  2. All drilling operatives (Lead Drillers and Drillers) employed on the contract shall hold a valid and current CSCS blue skilled (Land Drilling) card as issued by Construction Skills Certification Scheme Limited or an equivalent body in a State of the European Union.

We can assist with further guidance as to definitions and application of the model clauses.

Brian Stringer, National Secretary, BDA.            Tel: 01327 264622

Email: office@britishdrillingassociation.co.uk                  Fax: 01327 264623

Web:    www.britishdrillingassociation.co.uk

Article Data Management

Electronic tenders – What has changed in the last three years?

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Tags: electronic survey tender

A survey of AGS members in 2003 revealed that most respondents (74%) had tendered for work based upon information provided in an electronic format but few had purchased or sold construction related products online, and only 20% had experience of electronic auctions.  A similar survey was conducted in the autumn of 2006 of both AGS and FPS members. Had anything changed and is the experience of AGS Members and FPS members the same?

 

E-Procurement Survey
2003 2006
Members Experiences AGS AGS FPS
Tendering on the www (electronic auctions) 20% 24% 71%
Buying products/services online 38% 42% 36%
Selling products and services online 5% 9% 0
Tendering based on electronic information 74% 72% 100%

 

The results of the recent survey show that the level of buying and selling construction related products online has remained about the same and is broadly in line with the experience of FPS members. Similarly, the number of respondents tendering based upon electronic information has remained about the same and is consistent with FPS members, although FPS members seemed to tender based on little other than information provided in electronic format. The area showing the largest difference between FPS and AGS members was in the use of electronic auctions. Over seventy percent of FPS members had some experience of electronic auctions whereas the number of AGS members with experience of electronic auctions had increased but was about the same as the findings in 2003.  The results show that the use of electronic auction is high in the world of specialist contracting but is still in its infancy in other parts of the industry.  Nevertheless, both FPS and AGS members remain cautious about the all round benefits of electronic auctions but remain enthusiastic about the use of electronic information in the tendering process but only if, as will be seen below, some of the basic indexing issues are addressed.

Tendering based upon Electronic Information

The results indicate that for AGS members, very little has changed in respect of e-data.  Electronic tender information is routinely provided by some clients – but only 50% of consultants have ever received it (and of those, only half receive it for more than 50% of tenders.)  All contractors (AGS and FPS) have received electronic data with an enquiry at some point, but even they, receive it on average only 30% of the time.

When it is available, electronic data arrives on CD about 90% of the time for piling contractors, but SI contractors and consultants are more likely to be the recipients of emailed data (50%-100% of all e-data).  (This is a change from 2003 when AGS members received email data only 12% of the time).

In 2003, 68% of those using electronic information had experienced difficulties typical of tendering based upon electronic information:  poor indexing; irrelevant information (i.e. information overload); and data that could not be manipulated.  Had the situation improved in 2006?  Not a lot.

Respondents were asked to report on the last enquiry they had received that contained electronic data. All Piling contractors complained that the data they received was poorly indexed, and generally only 25% was relevant to the project.  Virtually none of the data could be manipulated.  Anecdotal evidence elsewhere indicates that even when AGS Data is received it is likely to be in PDF format.  In a separate study of SI reports received by FPS Members over a 3 month period – not one of the SI’s sampled had AGS Data1.  Not surprisingly, only 2 contractors (one AGS and one FPS) felt that electronic information saved time.  Clearly there is considerable room for improvement.

AGS members seem a little more fortunate.  Indexing is rated slightly better; 50-75% of the information is likely to be relevant; and occasionally the format can be manipulated.

The joint FPS and AGS electronic tendering protocol may be found on www.fps.org.uk and www.ags.org.uk respectively.

Electronic Auctions  

Since the last survey, both the AGS and the FPS have published position papers questioning the usefulness of e-auctions for the award of geotechnical service contracts.  Despite the relative infrequency of e-auctions, Members of both Associations have strong negative views about their use:

“E-Auctions are inappropriate for professional services and work where the extent is uncertain or cannot be accurately quantified in full at the outset.”

“Terrible, to be avoided if at all possible”

“Recipe for disaster.  Will encourage firms to reduce margins to unsustainable levels and takes no cognisance of the quality of bid or any qualifications thereto.”

“Not appropriate to specialist services with considerable design input/risk.”

“Completely inappropriate for the procurement of specialist services. Does not promote value engineering or innovation.”

The FPS and AGS position papers on the use of electronic auctions may be found on www.fps.org.uk and www.ags.org.ukrespectively.

Does IT help the tender process?

The jury is still out.  AGS members and their FPS counterparts appear to be comfortable with IT and with the use of the internet for the transmission of data but remain to be convinced of the benefits of electronic auctions.  The expected benefits are, however, a long time coming and there is little evidence of measurable progress over the last 3 years.

Work is now underway in the Business Practice WG to try to understand the process in more detail.   Although it is thought that AGS SI contractors are able to produce AGS data, and many do so routinely, there is little hard evidence to support the view and this will be addressed via a survey in 2007.

FPS Members are now increasingly requesting, but not getting, AGS data and discussions are underway between the AGS and FPS to look for a solution to the communication ‘log jam’ that prevents the flow of information between the SI contractor, SI consultant and the piling contractor end user.

Without doubt, there is room for improvement at all stages and by all participants if information is to flow smoothly throughout the project from SI to as built pile records.  Some aspects are outside AGS influence and control – other areas are already being addressed.  Most people are aware of the potential benefits but the evidence suggests that over the last 3 years progress towards the ideal has been slow.

  1. Presentation at AGS Members’ Day 2007. ‘How useful is the typical geotechnical report – an evaluation by the FPS’ Derek Egan, Keller Foundations
Article Business Practice Executive

Age Discrimination Regulations

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Tags: Age Equality Evesheds regulations

Members trying to come to grips with the Employment Equality (Age) Regulations 2006 can find information on the Evesheds website www.eversheds.com. (Drill down via ‘Services and Sectors’ to ‘human resources’ and ’employment law’ to find a list of articles published in this area.)

One of the most useful is entitled, ‘Age Regulation – an insight into how employers are responding to the issues’ (issued 24 October) which reports the results of a survey of 150 organisations. Each section begins with a very brief summary of the Regulations, and ends with a section entitled ‘implications and actions’