8.5.1 It is the view of the Inquiry that there are a number of areas within the PPP1 Contract that could have been strengthened in relation to the subject matter of this Report and which may have provided additional assurance for the Council. However, the incorporation of such provisions, while perhaps beneficial, would have been unlikely (in the case of most of these provisions) to have helped prevent the occurrence of the defective construction subsequently identified.
8.5.2 There is one area where a stronger contract may have had an impact and that is in relation to the definition of the responsibilities of the Independent Certifier in terms of the actual level of inspection of construction required.
8.5.3 A contract form currently being used on a PPP project in Scotland to appoint Independent Certifiers is much more demanding in this regard than the Edinburgh Contract. It should also be noted that it refers to the additional role of the Authority's Clerk of Works, a role not provided for by the Council in the Edinburgh project.
8.5.4 It also specifically refers to the facility for arrangements to be made for the advanced inspection by the Independent Certifier of areas of the building that may be closed up, which provision could be seen to have a particular relevance to the case of the PPP1 projects.
8.5.5 The contract referred to includes the following requirement;
"CONSTRUCTION REVIEW
The Independent Tester shall:
5.1 Visit the Site and monitor the Works for their compliance with the Authority's Construction Requirements, Project Co's Proposals and the Approved RDD. The frequency and timing of the Independent Tester's visits are dependent on the progress of construction on Site. The Contractor shall agree a programme with the Independent Tester for the inspection of key construction processes and the completed Works and shall give the Independent Tester advance notice of these Works being carried out on Site. The Independent Tester shall identify any aspect of the Works which needs to be inspected before being covered over by subsequent activity so that he may satisfy himself that these have been constructed in accordance with the Contractor's Quality Plan without the need for opening up.
5.2 Randomly check that the Works are being undertaken in accordance with the Construction Quality Plan that has been agreed by the Authority and Project Co.
5.3 Liaise with the Authority's Clerk of Works on a regular basis and as a minimum prior to each monthly site meeting and raise any issues identified by the Authority Clerk of Works."
8.5.6 Additionally, this contract sets the liability period and professional indemnity requirement at 12 years and £10 million respectively as opposed to the Edinburgh PPP1 Contract requirement of only five years and £2 million.