Hello,

I work for a principal contractor. We have recently had a contractor (A), who subcontracted the package to subcontractor (B), who signed up to Contractor A's RAMS.

This week, Contractor A went bust, and subcontractor B have now taken the job on themselves.

Although there is no change in personnel, and the risk assessments are still relevant and ok, I believe that subcontractor B (who are now, by default, no longer a subcontractor but a bona-fide contractor working for us) now need to provide us with their own full set of RAMS as they have a duty to plan/manage/monitor their work, and we (as PC) have a duty to ensure contractors fullfil their CDM duties. There is also a relevant provision under regulation 3 of the Management regulations to review a RA if its suspected to be no longer valid - which, to me, the original RAMS can no longer be valid. 

I was going to suggest - for time being while they produce their own RAMS, to provide a covering letter signed by subcontractor B's director, stating that they have reviewed the existing RAMS, agree with them and have taken ownership.

Thoughts?

Hi Dandal

You have overlapping issues of criminal and contract law here.

I doubt that it is as clear cut as you portray, UNLESS the lawyers have been very quick off the mark.

You as PC or the Client will have had a Contract with Contractor A.

In turn Contractor A would presumably have had a contract with Contractor B (whether or not written down)

In such circumstances, if Contractor A goes bust, you or the Client do not have a contract with Contractor B UNLESS somewhere the contractor documentation envisaged the potential of this situation happening.

[Some contracts do include defaults to deal with precisely the sort of situation that you have - but I think that these would be the exception - so the norm would be to draw up a new contract - possibly taking a risk - for all the parties - by letting work continue whilst all the paperwork is sorted out]

As for the risk assessment (or "RAMS" or whatever might be on the document) whether it remains valid for the purposes of criminal legislation, including, inter alia, CDM will depend on what is written in the document.

If it says that Contractor B will report to Contractor A who is longer on scene then clearly it needs attention.

But, if for example Contractor A managed to duck out of any supervisory responsibility for the H&S performance of Contractor B, such that e.g. says that Contractor B will report to you or the Client, then may be nothing has really changed other than the wrong name being on the header and footer - i.e. the RAMS purported to be in the ownership of Contractor A but in practice was actually owned by those doing the work who are still in place.

This could go horribly messy if your legal advisors are not happy with how you approach the situation going forward.