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Index

Newsletter Issue 54 - May 2007

• Electronic tenders - What has changed in the last three years?

• Drilling competence - what's the current proof?

• BDA audited drilling operatives

• Update on the Freedom of Information Act 2000

• Smooth as SiLC

• New Construction Industry Scheme

• Classification and testing in BS 5930 and BS 1377-9

• Two new guidance documents on ground gases

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

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?  

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.uk respectively.  

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

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Drilling competence - what's the current proof? 

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

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BDA audited drilling operatives

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. 

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Update on the Freedom of Information Act 2000

Extract from the ACE Briefing Note – 19^th 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 )

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Smooth as SiLC

Peter Witherington examines the importance of SiLC certification in relation to the UK ’s brownfield development programme  

Developed to support the Urban Task Force’s Land Condition Record in 1999, the Specialist in Land Condition (SiLC) certification has never been in any danger of becoming a superfluous addendum to the business card. 

With an estimated 300,000ha of contaminated land (Environment Agency figures) to contend with in the UK and a bewildering array of legislative and bureaucratic hoops to jump through to unlock it, holders of the most high-profile professional qualification related to contaminated land conditions were always going to be hot property.  

The trouble is there are not that many of them around. Once the next crop of successful applicants tack their certificates to the wall, there will be around 130–140 accredited SiLCs. Not bad, but not great either. If we are to deal with the UK ’s contaminated land legacy in a meaningful way, it is essential to have as many as possible on the front line. The breadth of knowledge and experience the qualification calls for is the most rigorous of its kind (last year’s pass rate was 35%), making graduates the best equipped in the business to extrapolate and advise on contaminated land issues.  

From the outset the Association of Geotechnical and Geoenvironmental Specialists (AGS) has had close links with SiLC. AGS Past Chairman Hugh Mallett is one of the original members of the professional technical panel (PTP) that drives the qualification (a post he maintains to this day) and our members have always been passionate advocates of the qualifications’ virtues.  

Personally, I have been an ardent proselytiser ever since I graduated from the SiLC’s first ever round of exams. At RSK, it is now company policy that any employee with the requisite experience sits the exams. We do not do it because we are looking for kudos; we do it because our clients respond to it.  Redeveloping brownfield land into places for people to live, work and play on is a big responsibility. Developers need to get it right and knowing that they are dealing with people at the very top of their profession gives them the confidence to tackle brownfield through sustainable means.  

Though SiLC’s ability to shed light on the UK ’s contaminated land conundrum may be in its infancy, there are positive signs that more wattage is on the horizon.  

In 2004, a House Builder Federation document entitled A Way Forward suggested that certification to a standard of SiLC’s stature would be a highly progressive step forward for land assessment. After liaising with the Remediation Licensing Task Force, the proposal was assimilated into English Partnerships’ National Brownfield Strategy, where it states: “funding should be made available by government to secure expansion of the Specialist in Land Condition (SiLC) scheme and to enable development of education and training courses.”  

Presiding over the National Brownfield Strategy is English Partnerships’ Paul Syms, whose opposite number in the Department of Communities and Local Government (DCLG) is Mark Rolls, who, serendipitously, happens to be the chair of the SiLC PTP.  

The SiLC PTP met in April with a view to progress the proposal. If all goes to plan, this would bode extremely well for the future of contaminated land assessment in the UK .  

In the meantime, SiLC’s credibility and influence is rude health as evinced by major developers such as National Grid Properties demanding it during the consultant evaluation process and the fact that local authorities such as Vale Royal Borough council will only work with SiLC-certified land assessors. 

Significant brownfield development opportunities and challenges become more apparent with each passing year, a result of structural changes in the economy unlocking large tracts of land (primarily within urban contexts) and a multitude of complex social changes resulting in the need for an extra 2.4 million new homes in the next two decades in England alone. With development set to go into overdrive, the safety of the eventual and adjacent residents must be assured. SiLC might not be the ultimate solution but, in my experience, it certainly helps.

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New Construction Industry Scheme

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

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Classification and testing in BS 5930 and BS 1377-9

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:

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.

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Two new guidance documents on ground gases

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).

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