The Construction (Design and Management) Regulations 2007 (CDM) have now been in force for more than six months - enough time for some early signs to have emerged on how they are being applied in practice on new construction projects across the UK and which aspects clients and principal contractors need to watch out for.

We know that all dutyholders under CDM must take reasonable steps to ensure the competence of the persons they engage and conversely no dutyholder should accept an appointment unless they are competent. Detailed guidance on carrying out competency assessments is provided in Appendices 4 and 5 of the Approved Code of Practice to CDM (the ACoP is available from www.hsebooks.com, priced £15).

We also know that the CDM coordinator may advise the client on the carrying out of the competency assessments. But frequently the CDM coordinator is appointed at the same time as the principal contractor and often it is the same company. Clearly some earlier advice would be useful to the unsophisticated client when choosing the CDM coordinator and the CDM coordinator should be appointed before anyone else is engaged.

In reality, only an appointee can know whether they have the necessary skills and expertise to be truly competent and the client may not have asked about competence in the tender documents. While appointees can be asked to give warranties as to their competency, capacity and resources, these are of little use if there is an incident, a delay or a prosecution.

In addition, companies will often put forward their best people to win the contract, but those people might not end up actually doing the work. One way to safeguard against this is to include clauses in the contract of appointment specifying minimum qualifications/competencies/experience levels, or even naming key people.

The planning period

CDM 2007 requires clients to allocate enough time before construction starts to enable contractors and others to carry out planning and preparation. As part of the pre-construction information that clients must provide to the contractors they appoint, they must inform them of the minimum time (before the construction phase) which will be allowed for planning and preparation of the construction work.

Clients should also consult with proposed appointees to agree how much time they will need for planning and preparation before work is expected to start.

Some standard construction contracts require this CDM planning period to be stipulated in the contract but this is still not common practice. In many cases, the client's lack of knowledge means they are not specifying any planning period and simply giving an end date for works to be completed.

Clients are obliged under CDM to provide the "pre-construction information" - that is, information they have already or which is reasonably obtainable. This might include information about the existing site and structures, including location of services, storage of hazardous materials or the presence of asbestos.

Where the information is vital to planning works safely (a ground survey, for example), frequently the client might not already have this information but it would be reasonable for them to obtain it. Uncertainty as to whose responsibility it is to provide reasonably obtainable material can lead to contractors taking risks where timescales are tight.

Where there are gaps in the information, it may be the client who should ensure that they provide the information, but it may be the contractors who are contractually obliged to obtain it. The ACoP says it is not acceptable for clients to make general reference to hazards which might exist, saying, for example, just that "there may be asbestos present in the building".

Unsophisticated clients might not have the information, they may not seek the advice they need and they might not want to pay for additional surveys.
If clients get the issue of information requests sorted out early on, as part of the procurement or tendering process, they can minimise the risks of a contractor delay. If principal contractors get the issue of information flow sorted out early on, they will minimise the risk from being surprised by site hazards and may even impress the client with their efficiency.

However, over the last six months (and even under the old CDM Regulations), a different approach has been common. The principal contractor is frequently required to take the risk of commissioning surveys  and to obtain other relevant information which, in many cases, the client should already have.
In addition, clients who are tenants of a site will not always seek information from the land or building owner, or tell the principal contractor to ask the owner for further information.

Though managing things in this old way is contrary to the spirit of CDM 2007, it should not be problematic so long as the information is actually obtained, collated and provided to the relevant parties early enough to allow for the planning and preparation of the construction works. However, where timescales are tight, risks are likely to be taken which could jeopardise delivery dates as well as profit.

Under control

Under the predecessor to CDM, the principal contractor was seen by the HSE as being in control of the whole construction site. But in practice, there were often difficulties controlling the entire site, and in particular in supervising subcontractors or the client's nominated subcontractors' work. This is still difficult to manage, and particularly where there is no contractual right to restrict attendance on site.

Clients' own contractors will often turn up on their sites while principal contractors are supposed to be in control. Utilities companies or other contractors may have separate contracts with the client and the principal contractor will have to deal with these in addition to agreed site procedures and the existing programme.

In contract, a client can allow the principal contractor to control access to the site for all subcontractors and also require any subcontractors to carry out detailed supervision of their workers.

In some cases, a site lease may even be appropriate. The client has to carry out competency checks on any contractors they instruct before appointment. In the contracts, it is also possible to specify who should carry out continued monitoring on the site to inform the client about ongoing competence, to restrict entry to the site or to restrict contractors' ability to tender for future work.

The ACoP clarifies that it is the client's duty to take reasonable steps to ensure that suitable management arrangements are in place throughout the project so that the construction work can be carried out safely and without risk to health. This is in addition to the duty to ensure that principal contractors prepare a construction phase plan that complies with CDM 2007 and welfare facilities which will be adequate during the construction phase.

Clients aren't required actually to manage the works but they do have to check that the management arrangements are suitable and are being followed at the start of the project.

The ACoP specifies that they are entitled to rely on the advice of a competent CDM coordinator when making judgments as to the adequacy of the management arrangements. Clients should be careful not to take an active role in managing the works because CDM 2007 places liability on those who control the way construction work is carried out.

Similarly, principal contractors need to make it clear who is carrying out the detailed supervision and whether they have control over the subcontractors' activities on site - if they are to seek to take advantage of the ACoP's advice that principal contractors don't have to undertake detailed supervision of contractors' work.

In summary, the management arrangements that can be detailed in the contract include:

• control over the site
• control over subsubcontracting without notification
• ongoing competency checks
• levels of detailed supervision required of subcontractors
• the time allowed for planning and preparation
• the arrangement for communicating among the dutyholders and reporting to the client
• the provision of pre-construction information and reasonably obtainable information
• the format and quality of information for the health and safety file
• the provision of the construction phase plan and all updates to the client (and CDM coordinator).

The more that is set down in the contract, the less likely any of the duties are to fall between the stools of the dutyholders. Increasing the level of detail in the contracts can help to safeguard all parties against delays caused by incidents or regulatory breaches (which can often wipe out the profit on a project).

It can also be useful in removing uncertainty which in turn could help to prevent accidents or even reduce the need for any of the parties to develop a defence to a charge under health and safety legislation. It remains to be seen how the construction industry guidance will affect projects over the next six months before the corporate manslaughter offence comes into force in April.