FPA Commercial Director Chris Miles considers the compliance of construction products and the impact the Grenfell Tower Inquiry Phase 2 report will have on this sector In the first article in this series, entitled ‘Inquiry Phase 2 Response – Time for change’, Dr Gavin Dunn takes a wide view of the content and implications of the Grenfell Tower Inquiry Phase 2 report. It is worth (re)reading to enable the following article to be contextualised. One of the key areas that the Inquiry Phase 2 report looks at in some depth is that of the compliance of construction products and systems and how the process can be improved, noting that using relevant, robust standards is essential. This article will look at the current process, some of the issues identified in the report and progress made in improving it, and will then examine ways in which the recommendations made in the Phase 2 report can be implemented. There are multiple elements to the compliance of products and systems, including how the process is governed and regulated, and the report includes a number of recommendations related to this. Some of the elements forming the recommendations in the report include: Current compliance If we look at the various routes to compliance that are currently available to the construction product industry we find multiple options – e.g. testing by the manufacturer/supplier, independent testing by a third party, sampling of products from the market (surveillance), and third party product certification. Whilst the third-party product certification route is often seen as the highest current level, there are variations between the providers offering various qualities such as user-friendliness, locality, project/market needs, costs, and turnaround time. However, the Inquiry report showed that too often the need for quality and thoroughness were a lower consideration when selecting which option was to be used. Analysis of the lead up to the Grenfell Tower fire by the Inquiry showed that examples of poor practice in the compliance processes led to inappropriate products, critical to the safety performance of the system, ended up on the building, namely the use of aluminium composite material (ACM) cladding. The Inquiry report states that: “The choice of combustible materials for the cladding of Grenfell Tower resulted from a series of errors caused by the incompetence of the organisations and individuals involved in the refurbishment… “Everyone involved in the choice of the materials to be used in the external wall thought that responsibility for their suitability and safety lay with someone else.” These issues can be shown to stem from a weak governance of the system that the testing laboratories and certification bodies operated under. This demonstrates that the governance of the compliance process is critical to an effective system. Applying recommendations The Inquiry report provides a clear recommendation that the construction regulator should be responsible for assessing the conformity of construction products with the requirements of legislation, statutory guidance, and industry standards. The regulator would then, perhaps, issue certificates to cover products, as appropriate, with a proposal that these certificates would become pre-eminent in the market. This would, in effect, create a new independent authority to regulate construction product safety (see figure 1), and whoever takes on this task must ensure there are clear responsibilities on product manufacturers and must also set out the consequences of acting outside the required system. To give this system real teeth, it must have the ability to set statutory liabilities and be able to enforce them through criminal proceedings if necessary. To improve the system overall it is important to have this recourse to legal action if a company or individual does not follow the proscribed system. If a serious mechanical failure occurred on an aeroplane, there would be a thorough investigation as a matter of course, and where fault was found there would be statutory implications. However, currently none of that happens routinely with construction products. This needs to change and it will need government and legislative support as part of their response to the Inquiry report recommendations. It should be noted however, that taking on the role of construction products regulator is a huge task and one which should not be undertaken lightly by any organisation, even by government. There are hundreds of certificates produced each month by the various current certification bodies and, as a response to the events at Grenfell and the subsequent Hackitt report, these numbers have grown significantly in the past seven years as the authorities started asking for more proof of compliance. To replace and/or replicate this through a newly founded construction products regulator will be a major undertaking requiring significant investment. If government decide that this is the way forward they wish to take, they will need to ensure this new body has access to sufficient numbers of competent staff in an area where we are all aware of the current lack of this type of resource. Therefore to rush into this could be a major mis-step and cause delay and confusion at a time when the construction sector as a whole is looking for clarity after the Inquiry report’s publication. The Inquiry Phase 2 report recommendations under section 113.23 are: Looking at each of these points individually highlights the difficulties faced when trying to implement a system to meet these recommendations. Recommendation 113.23a recommends that copies of all test reports supporting any certificate issued by the construction regulator are included, however product manufacturers will often go through numerous test cycles during the R&D process of a product or system. Many of these test reports do not represent the final product and are used to prove variations in the design. This will result in a large number of failed results showing on the certificate for prototypes that may bear little resemblance to the final product to be sold on the market. If these R&D results are included in a certificate they could be a red herring, confusing potential product users as to the ultimate safety of a product or system. This may in