8.3.1 The Contract sets down specific responsibilities to be undertaken by the Independent Certifier. The Appointment Document for the Independent Certifier uses the terminology 'Completion Services' as the heading for the list of services which the appointment requires to be undertaken. This terminology conveys the view that these services are largely undertaken as the individual school projects near completion.
8.3.2 However, in addition to the core responsibility of issuing 'Availability Certificates', which should certify that all availability criteria have been met, Clause 6 (iv) of the relevant schedule of services requires the Independent Certifier to;
"Observe and monitor mock-ups, fabrication, construction and installation works so as to satisfy itself that the Project complies with the requirements of the Project Agreement, and any subsequent compliant design development."
8.3.3 This would appear to imply an on-going comprehensive inspection during the construction of the schools, otherwise how could Independent Certifiers satisfy themselves that this was the case in relation to those many areas of the building that will no longer be visible once closed up as part of the on-going building process.
8.3.4 Whilst this is the wording in the Contract, it is suggested that the service as frequently delivered in the construction industry would tend to reflect more closely the implication that one might attach to the terminology, 'Completion Services'.
8.3.5 However, from the evidence given to the Inquiry, it was clear that there was a belief amongst some of the client representatives that the certification they received more greatly reflected Clause 6 (iv) and provided confirmation of the quality of construction, not just the completion of the building and the provision of the required accommodation, services and equipment.
8.3.6 The Inquiry is of the view that there appears to be a lack of clarity and definition in respect of the specific nature of the requirements placed on the Independent Certifier by the Contract and how these duties are performed. This lack of clarity was repeated in the evidence of several witnesses to the Inquiry.
8.3.7 Whilst the appointment of Independent Certifier is a joint appointment between public and private sector parties to the Contract, the view was expressed on more than one occasion that there was significantly less understanding of the role in the public than private sector in terms of the quite limited level of detailed scrutiny that as a norm is actually applied by the Independent Certifier to ensuring the quality of the main elements of the on-site construction.
8.3.8 Several witnesses suggested that the role needs better definition and consistency of application. The variation in how the role is delivered was evident in the different approaches taken by the two Independent Certifiers, Mouchel and Arup (Scotland) used respectively on Phase 1 and Phase 2 of the PPP1 schools project.
8.3.9 The Independent Certifier on the 13 Phase 1 projects was Mouchel, whose contract provided for a total of 611 man days over 26 months, being the equivalent of only approximately 1.8 man days per school per month if averaged out. While the work was inevitably focussed more towards the end of the project, there was still a proportion of time allocated throughout the period of construction. However, this time provision included for the significant administrative element attached to the role, allowing even less than this period of time to be allocated for inspection visits to the 13 sites.
8.3.10 The Inquiry was advised in evidence however, as will be discussed later in the Report, that the Independent Certifier for Phase 1, when on these sites, did regularly raise issues with the Contractor and sought to inspect the quality of the construction in so far as he could within the time constraints he was working to.
8.3.11 Arup (Scotland) were appointed as Independent Certifiers for the four Phase 2 schools. In contrast to the approach of Mouchel on Phase 1, a Project Director from Arup (Scotland), who had overseen the delivery of the Independent Certifier service on these schools, said that they had understood their role in the case of the Phase 2 schools as not requiring on-going inspection of the works. He stated that their Independent Certifier:
"………. had not inspected the construction works beyond general site walk arounds … to monitor general progress"
8.3.12 He advised that the focus of the service as delivered by Arup (Scotland) on the Phase 2 schools were:
"……. pre-availability, shadow sign-off and availability inspections that had taken place shortly before the buildings were completed."
and that:
"In principle, the documentation comprising the 'Availability Criteria' reflected that construction complied with the 'Council Requirements'."
8.3.13 The Inquiry was advised that the contract of appointment of the Independent Certifier for both phases of the PPP1 schools was the same. The Inquiry was unable to get confirmation from the Council that there had been any agreement with ESP and Arup (Scotland) that the role of the Independent Certifier on Phase 2 was to be focused on completion of the project and had not required on-going inspection of the construction process other than in relation to general progress.
8.3.14 A separate witness to the Inquiry, currently involved at a senior level with projects for which Independent Certifiers have been appointed, referred to what he perceived as an ongoing pressure to reduce the level of fees paid for this service, as a result of which companies are forced to reduce the amount of time they can afford to spend undertaking the work.
8.3.15 It is the view of the Inquiry that the nature of such a fundamental service should not be determined by the level of fees that the client is prepared to pay but that the fees should reflect the level of service required to be provided, which should be made explicit in the conditions of appointment.
8.3.16 The wording of the Contract states that the Independent Certifier shall:
"satisfy itself that the Project complies with the requirements of the Project Agreement"
but there is no clarity as to what degree of self-satisfaction is required in relation to the quality of construction. In the case of the PPP1 schools, unfortunately neither the somewhat more intensive approach taken on Phase 1 nor the somewhat less intensive approach taken on Phase 2 to site inspection was sufficient to identify significant defective construction throughout the external walls of the various schools, despite which the Independent Certifiers did each certify the buildings as compliant with the requirements of the Project Agreement.
8.3.17 There is clearly a problem if clients believe they are getting a more comprehensive service than they may in reality be getting, particularly if it is mistakenly viewed as giving them reassurance in relation to the level of scrutiny being applied to ensuring the quality of construction. This may also have the adverse result of causing some clients to feel that they do not need to put in place more effective mechanisms in order to obtain the required level of reassurance.
8.3.18 Despite the fundamental importance of the issue of the Certificate of Availability by the Independent Certifier in confirming that the design and construction of each school had reached the point where it complied with the requirements of the Project Agreement, the Inquiry was surprised at the limited period of liability required of the Independent Certifiers for the PPP1 schools. Clause 10.1 of their appointments states:
"The liability of the Independent Certifier in respect of all matters certified by any or all of the availability certificates shall expire 5 years after the date of issue of the Project Availability Certificate…."
8.3.19 This is significantly less than the 12 years which will normally apply to most of the contractors and design team members employed on the project who have signed their contracts of appointment under deed. The level of Professional Indemnity required to be provided by the Independent Certifier was £2 million.
8.3.20 It is the view of the Inquiry that there should be greater clarity for clients as to the level of scrutiny that Independent Certifiers are required to carry out and the degree of reliance that clients can reasonably place on the issue of Availability Certificates as evidence that the quality of construction is fully compliant with the Project Requirements. In this regard the Contract was considered to be less than totally clear.