PFI, PPP and Similar Forms of Procurement

Introduction

Previous CDM Regulations included a special section for PFI, PPP and similar forms of procurement to clarify who the Client was.

The ACoP to the 2007 regulations stated: Project originators are legally the client at the start of the project, and should ensure that a CDM Co-ordinator [Principal Designer] is appointed and HSE notified during the early design and specification phase. The project originator cannot wait until someone else, for example the Special Purpose Vehicle (SPV), takes over the client role.

The role and responsibilities of the client can transfer from one party to another as the project proceeds. This is normally the case when the SPV is appointed to carry out detailed specification and delivery of the project. Any such transfer should:

1. be clear to, and agreed by all those involved;
2. be clearly recorded;
3. provide the practical authority to discharge the client's duties.

If there is doubt

In some circumstances it may not be immediately obvious who is legally the client and there can sometimes be more than one client involved in a project. To avoid confusion, this needs to be resolved by those involved at the earliest stage possible. Take into account who:

1. ultimately decides what is to be constructed, where, when and by whom;
2. commissions the design and construction work (the employer in contract terminology);
3. initiates the work;
4. is at the head of the procurement chain;
5. engages the contractors.

If there is still doubt, then all of the possible clients can appoint one of them as the only client for the purposes of CDM2015 (see regulation 4). Someone will always be the client. It is in the interests of all possible contenders to identify who it is. If not they run the risk that all will be considered to carry the client's duties under the Regulations.