‘Product transparency and no more designing on the hoof’ – What the national regulator for construction products means for the future of fire testing

A culture of misleading product information together with building ‘cheapest and fastest’ needs to be replaced with product transparency and planned specification, Fire Conference 2023 delegates heard in a panel discussion.

Getting the Regulator in place ahead of time

Duncan Johnson, Deputy Director for Construction Products Regulation at the Office for Product Safety and Standards (OPSS) said that at present, the regulator existed without the regulations yet in existence.

In July 2022, the OPSS got powers under the existing regime and it’s very focussed on ensuring that non-conforming products are not placed onto the UK market. “There are tens of thousands of construction products, so we need to prioritise where non-conformity could lead to a life safety risk, and fire safety is central to that.”

In collaboration with stakeholders, the OPSS has identified certain priority products, such as fire doors, smoke dampers, plywood, electrical cables and insulation. In some cases it is inspecting production sites, in some it’s taking samples and testing them, and in others it’s auditing technical documentation and product information.

“We are out there regulating products now, ahead of a future regime.”

The OPSS needs to act proportionately, he added, but it has tools to prohibit further manufacture, require products to be recalled from the supply chain, and require those that have been supplied with a non-conforming product to be notified of the fact.

Peter Caplehorn, Chief Executive of the Construction Products Association, said that arguably, there are still lots of issues about construction products, as borne out by the Independent Review of the Construction Products Testing Regime [published in April 2023].

Many of the facets of the product arena don’t make sense, many of them don’t join up – there are lots of issues there that need to be made sense of.

“The greater majority of our members bend over backwards to produce a product that performs,” said Caplehorn. “But there is a small percentage that don’t do that…so we do have some products that are not fit for purpose. Equally, we have a wider industry that is used to procuring cheapest and fastest – that has been the maxim of the UK construction industry for the last 50 years.”

Most manufacturers are already there in terms of the products, said Caplehorn, but there’s some sharpening up to do in terms of making sure those products are presented correctly. This should be seen in the context of the whole industry – contractors, designers, clients, supply chain – all moving to improve the way in which we procure, design, build and maintain buildings.

“It’s about performance, it’s about competence, it’s about confidence.”

Further reading: Independent Review of Construction Product Testing calls for full supply chain to take greater responsibility to restore trust in system

From level playing field to safety culture

Simon Lewis, Head of the Building Safety Working Group at law firm Womble Bond Dickinson, said there was no general safety requirement for products, except in a few specific areas, and that the purpose of regulation was to provide a level playing field, rather than a general safety culture that we are now aiming for.

Paul Morrell OBE undertook the much-anticipated Independent Review of the Construction Product Testing Regime, which was published on 20 April 2023

The Building Safety Act is aiming to provide the legal framework in which the regulations can develop. It’s moving towards a more regulated and structured environment, in which hopefully the whole position will improve.

This is part of a larger picture, said Lewis, where we need to think about improving the whole procurement process. The Building Safety Act is going to affect this, particularly in relation to higher risk buildings and in the strengthened building control regime.

His firm was looking at applying and giving guidance on this complex series of regulations and statutory requirements that affect the whole procurement process – from start to finish – of which construction products is a very large and significant part. “

It’s not [a case of] the elephant in the room – because I suspect a lot of people don’t even know it’s there – but it’s going to become increasingly significant.”

Replying to a question about duplicate product testing in the UK and Europe, Caplehorn said there is a real problem emerging, not least because of the “complete stupidity that we’ve got which is called CA marking”.

Clearly, as we do not have enough testing and certification resource in the UK anyway, it’s really important for industry to have a one-stop shop – wherever that may be. That’s the work that has come out of the [independent review of construction products testing] report, and is being taken forward by industry and government in parallel.

The problem is we have construction on the cheap, he explained, because buildings don’t perform as expected in the widest sense – including in terms of fire safety and environmental. It will cost more to start with, but once everyone gets a grip on it and has the right training and competence, then we find more efficient ways of doing what is a very much better job.

“What we want is clarity and certainty for the industry. When you don’t get that clarity and certainty – and a level playing field – then people can game the system.”

Simon Lewis said there is a whole new effect of the Gateway regime on procuring for HRBs. “You are subject to a much more rigorous change control process from the point at which you get to Gateway Two, to the point you get to Gateway Three. You have notifiable and major changes, which the Building Safety Regulator may not like.

“The old ‘let’s get going and design it on the hoof’… will be difficult to do in the context of an HRB. With construction products, the industry is going to have to think long and hard about how they do that, and how they cost it.”

No more ‘designing on the hoof’

Peter Caplehorn said that in the last 20-30 years, where design and build contracts have been predominant, that has led us into a way of thinking of ‘let’s get going and [design it on the hoof]…’

“I don’t regard that as the norm, I regard that as the start of insanity. You wouldn’t start a journey and have no idea where you’re going, no budget, no means of transport, and it will all happen and turn up.”

We’ve got to have an honest hard look at how the built environment is enacted, said Caplehorn. “What that means is you need a solid design that is not reengineered halfway through, you need the supply chain properly organised and motivated, and when you get to site, you just build what you’re supposed to build without making changes on the fly.”

He said that ultimately, things can be done less expensively, as you’ve got everything lined up and ready to go, and the supply chain engaged in that process.

If everything was joined up digitally, it would mean everyone is connected to one another and the site team are calling off products, which would arrive exactly when they need to.

Context of construction products use is key

In response to a question about the problem of compliant products being used in an unsafe context, Johnson said it’s all about foreseeable use, and the connection between products and the use of products is very important.

It’s all about the information that comes with the products and clearly, if a product is not suitable to use in a particular way, it should not be marketed as such. This is why the code for construction product information is so important to support manufacturers in getting that product information right.

Risk assessment under a future general product safety requirement would give some scope to prevent some of those issues, said Johnson.

“I think any product that doesn’t meet its claimed specification is a bad product… and where product information is inadequate so that it doesn’t enable correct selection and correct installation, then that’s a bad product.”

After that, said Johnson, manufacturers need to be learning from real-world experience of their products.

They may get complaints about performance that they need to think about, they may learn that their product has been used in an inappropriate context and the information might need to be refreshed, they may learn that their product has consistently been installed incorrectly, so they should be managing those risks as part of a product development process.

We also need standards that work and align with building regulations, and testing that’s trusted.

Caplehorn summarised by saying there’s been incremental change in the past five years. “I think we’ve got some answers, and if not answers, then a direction of travel, and we’ve got the OPSS and the Building Safety Regulator. Those are solid points we can now build on. We should be optimistic, but we cannot afford to deviate or take our [foot] off the accelerator.”

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