10.12.1 From the evidence provided to the Inquiry by several witnesses, including witnesses from both the Council and ESP, there was clearly a significant degree of reliance placed by the Council and others on the role of the Independent Certifiers in confirming that the projects were constructed fully in accordance with the requirements of the Project Agreement.
10.12.2 The specificity of the role has developed with the introduction of the Private Finance Initiative. It acts to provide under this model of procurement an independent expert opinion and certification that: the detailed design and construction of buildings have been carried out in accordance with the requirements of the Project Agreement; that the buildings in question are now available for use by the client; and effectively that the provider of the building is now entitled to payment in line with the agreed payment mechanism.
10.12.3 As previously stated in this Report, the role of the Independent Certifier in practice, and their time spent on site, tends to be focused towards the completion stages of projects. As a result, it would be unusual for Independent Certifiers to have inspected, to any significant level of detail, the build quality of the core elements of the structure, frame and external envelope of projects to confirm that the detailed construction of these elements is as required in the approved design documentation.
10.12.4 The evidence to the Inquiry indicated that some members of the Council staff did view the issue of the Availability Certificates by the Independent Certifier as the certification by an independent expert that full compliance with the requirements of the contract had been achieved, including the quality of construction and compliance with all requirements of Building Standards. In so doing they relied on the following clause of the Independent Certifier's appointment used on the PPP1 projects:
"The Independent Certifier shall:
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."
10.12.5 It is the stated responsibility under this clause that the Independent Tester, through monitoring and observing construction, satisfy itself that the project complies with the requirements of the Project Agreement. The most general of these requirements in relation to the construction of the schools, as specified in the Project Agreement under 'Council Requirements Section B.6.0 Accommodation Provisions', reads:
"All Project Schools to comply with applicable laws and statutory standards."
10.12.6 The contract does not specify how an Independent Tester should satisfy itself in this regard. To do so effectively, would require an intensive regime of inspections and sign offs of all aspects of the construction where statutory standards were at risk of not being complied with. The Building Standards in Scotland come under the heading of statutory standards so it could be implied that under the terms of the contract the Independent Tester is required to monitor compliance with Building Standards throughout the project.
10.12.7 It can be argued that it would be unreasonable for a client to expect this level of assurance from this service, but it should therefore also be clear to the public sector client as to what the service does and does not provide in terms of reassurance as to the quality of construction.
10.12.8 The Inquiry was somewhat surprised, although perhaps this is a reflection of the perceived limited level of involvement of Independent Certifiers in the detail of projects, that neither of the two companies were approached by any of the key participants in the aftermath of the wall collapse at Oxgangs School, and at the subsequent discovery of the extent of defective construction, which under the general certification of the Independent Certifiers had been certified as compliant with the requirements of the Project Agreement.
10.12.9 The situation, as previously described in this Report in relation to the significant differences in the approaches adopted on the two Phases of PPP1 by the two different Independent Testers appointed under the same conditions of contract, reinforces the inconsistency in application and expectations of the role.
10.12.10 The Inquiry sought evidence from Mouchel as to the nature of their involvement and the level of inspections they had carried out as Independent Certifier for the Phase 1 schools. Unfortunately, the company was unable to provide any specific information or records as to the PPP1 project, advising the Inquiry that they no longer held any information on the project and that no one who worked on the project was still with their company. A Commercial Director from Kier, which company had acquired Mouchel (recently sold on again to WSP), agreed to meet with the Inquiry to discuss the nature of the current Independent Certifier role as delivered by his own company.
10.12.11 Speaking in a general sense he indicated that his team considered that a greater level of specification in the appointment of an independent certifier would be desirable to assist all parties in their understanding of what is to be delivered which could only be helpful for contracting parties. His experience was that original tender documents are often not terribly detailed in relation to the Independent Certifier's role.
10.12.12 The view expressed in evidence to the Inquiry by the Deputy Chief Executive of the Scottish Futures Trust (SFT) assumed a significant degree of reliance on the Independent Certifier's role.
"If you accept that the Independent Certifier or tester has the job of certifying the work then it is also within their remit to certify that the construction has been done in compliance with the original specification. Of course, they cannot check each and every variation in the design which may have been implemented on site. Only those people who oversee things on a daily basis can do this and that would be the contractors."
10.12.13 In relation to the benefit of the use of Clerks of Works to protect quality on the part of the public sector client, he stated:
"I have seen no link between the use of Clerks of Works and quality issues. Overall I have seen no evidence that one approach is more or less quality conscious."
10.12.14 While this was clearly the experience of the Deputy Chief executive of the SFT, this experience was very much at variance with those described by many of the witnesses to the Inquiry.
10.12.15 Previous comments have been made in this Report by the Inquiry as to the need for greater clarity as to the level of scrutiny of construction that the Independent Certifier role should be required to undertake and as to the degree of reliance that can be placed on it by public sector clients in relation to assurance of build quality.
10.12.16 It is vital that this should be properly understood by staff in public sector client bodies who may only have a requirement to use these services once or twice in their careers and may have formed mistaken assumptions as to the nature of the Independent Certifier role as generally undertaken in practice.
10.12.17 A further related aspect raised in the Inquiry was the nature of the process of selection and appointment of the Independent Certifiers. Clearly the word 'Independent' is of key importance in this context as the Independent Certifiers have to carry out a role which shows no favour to either party.
10.12.18 The Inquiry was informed that the nomination for the appointment of the Independent Certifiers for the PPP1 was made as a proposal of the private sector party to the Contract and that there was no process of public advertisement used to invite applications from interested professional firms, even though this was required to be a joint appointment with the Council. This approach would appear to have been in line with that adopted on other PPP projects at the time and would appear still to be the case in some current procurements.
10.12.19 The Inquiry would suggest that it would be more appropriate if such appointments are made following compilation of an agreed scope of the service required and a properly convened public competition to reflect the independent nature of the role.
10.12.20 This is in no way intended to suggest that in the case of the PPP1 schools the service was undertaken with a less than total independence of approach.