Building Safety Act 2022 – What’s Changed?
COVID-19: UK Public Sector Construction – Cabinet Office publishes FAQs regarding PPN02/20
COVID-19: UK Coronavirus Act 2020 – Implications for the Construction Industry
COVID-19: UK Public Sector Construction – Cash Flow Relief for Suppliers
‘Fitness for Purpose’ and Conflicting Obligations in Offshore Wind Projects
COVID-19: Coronavirus Concerns Prompt Two-Week Halt to All Construction in Boston
NEC4 Update – May 2019
FPSO Europe Congress 2019

Building Safety Act 2022 – What’s Changed?

By Kevin Greene and Ruth Chang


The Building Safety Bill received Royal Assent on 28 April 2022, and has now completed all the parliamentary stages in both Houses to become an Act of Parliament – i.e. the Building Safety Act 2022 (the “Act”).

According to the Government, many of the measures included within the 262-page Bill are likely to take between a year and 18 months to introduce, as the Act will require the formation of secondary legislation to support actual implementation of the measures.

Who does the Act apply to?

The provisions set out in the Act will apply to building owners and the built environment industry. This includes those who commission building work and who participate in the design and construction process, including clients, designers, consultants and contractors alike. Given the wide and far-reaching implications of the Act, potentially any parties engaged in the construction process of a building will likely be affected by the Act in one way or the other. 

Whilst the Act will cover all buildings (and not just high rise residential), measures within the Act have a special focus on higher-risk buildings which are defined as buildings that are at least 18m in height or have at least 7 storeys and have at least two residential units.  Care homes and hospitals meeting the same height threshold during design and construction will also be classified as a “higher-risk building”.

Introduction of a Building Safety Regulator

Under the Act, a new Building Safety Regulator will be responsible to carry out the following three main functions:

  • Overseeing safety and standards and performance of all buildings;
  • Helping and encouraging the built environment industry and building control professionals to improve their competence; and
  • Leading the implementation of new regulatory framework for high-rise buildings

The Building Safety Regulator is to be established by the Health and Safety Executive (“HSE”).

Introduction of concepts of “Gateways”

 Three new concepts of “Gateways” are developed and these must be satisfied before occupation of a building can take place.

Gateway one  – Planning Gateway

 Planning Gateway one will:

  • Involve the HSE becoming a statutory consultee before permission is granted for development which involves or is likely to involve a high-rise residential building in certain circumstances.
  • Require relevant applications for planning permission to include a fire statement to ensure applicants have considered fire safety issues as they relate to land use planning matters (for example, access and layout issues).
  • Help inform effective decision-making by local planning

Gateway two – Pre-construction stage

Gateway two requires the Building Safety Regulator to be satisfied that a building’s design meets the functional requirements of the Building Regulations. Construction duty holders will need to submit essential information to the Building Safety Regulator to demonstrate how the building, once built, will fulfil all the requirements of Building Regulations.

Gateway three – post completion

Gateway three takes place when construction of the building is completed, and the building control body determines whether the work has been carried out in accordance with the Building Regulations. Documents and information on the final, as-built building must be submitted to the Building Safety Regulator who will then issue a completion certificate, if and when the specified requirements are being fulfilled.

All the gateways are put in place to create ‘golden thread’ of safety information required for a building, ensuring the appropriate information is available to appropriate personnel at all times.

Introduction of New Home Warranties

All developers will be required to provide a minimum of 15 year warranty for all new build homes. 

Introduction of New Homes Ombudsman Scheme

The main proposals in the Act are to introduce a New Homes Ombudsman to serve as a system of redress and develop a code of practice with developers to set standards on sales, marketing, and the standard and quality of workmanship. All developers of new homes will be required to join the scheme.

Limitation period issues under the Defective Premises Act 1972 (“DPA”)

One of the most notable focuses of the Act relates to the limitation periods for claims brought under the DPA. The current limitation period for a claim under s1 of the DPA is 6 years from the date of practical completion of the relevant works. The Act extends the limitation period to 15 years prospectively for claims under s1 and s2A (i.e. for claims that accrue after the Act takes effect) and up to 30 years retrospectively for claims under s1 only (for claims that accrued before the Act takes effect)

The provisions to give effect to the changes concerning limitation period (as detailed above) are intended to come into force as soon as 2 months after Royal Assent.

Fire Safety remediation

The Act made clear that historic remediation obligations now rest primarily with landlords and developers, and not leaseholders.

Under the Act, house builders are firmly held liable for paying for any cladding-related remediation works, and that the Government can prevent any house builder from building homes “for any purpose” connected with “securing the safety of people or improving the standard of buildings”.  Under a scheme named “Building Safety Pledge”, under which 53 of the largest house builders in the UK are invited to sign up to this, the house builders are required to rectify any “life-critical fire safety defects” on all buildings over 11m constructed by all these developers in the last 30 years.

Currently the Act has also in place a waterfall process with regards to fixing non-cladding defects, which will see leaseholders only pay towards costs if the developers cannot be found or freeholders are unable to pay. These are, so far, capped at £15,000 for those in London and £10,000 for those outside of the capital.

Quality of construction products

Under the Act a construction products regulator will also have powers to remove any dangerous construction products from the market. 

What next?

A recent survey by Construction Management found that only 23% of construction professionals think that they and their organisations are ready for the Act.

Given this Act is representing one of the biggest overhauls in building safety regulations in nearly 40 years, construction industry stakeholders will need to come together, understand one another’s perspective and viewpoints, before each and every stakeholder will be readily available to cope with any of the challenges that may arise in complying with the Act.


Authors: Pawel Piotrowski and Nicola J. Ellis

COVID-19 has highlighted some of the existing problems in the construction market such as fragmentation, low profitability and often low satisfaction for both owners and contractors (due to time and budget overruns and lengthy claims procedures and disputes). In this article, we consider the choice of the procurement method for large construction projects and issues and risks raised by COVID-19.


Owners often procure major construction projects on a fixed price, lump sum turnkey contract whereby the contractor is responsible for all engineering, procurement and construction (EPC) aspects of the development by a specified date (subject to a limited number of circumstances which will provide the contractor with relief). Under this arrangement, the EPC contractor directly engages the supply chain and takes responsibility for building and delivering the project so that the owner simply has to ‘turn the key’. Any changes or variations that the owner may require to the original scope provided to the EPC contractor will be at the owner’s risk and therefore it is important to have a high degree of certainty and detail as to the scope of works, and often a detailed design provided by the owner to assist the EPC contractor in providing an accurate price.  

The EPC has many advantages for the owner, including that it places lower management burden on them. It provides a single point of responsibility for the project to the owner and gives the owner and any lenders a high degree of certainty as to the time and cost of the development. Since the owner has recourse against a single contractor rather than having to pursue multiple contractors and suppliers, the dispute resolution process is usually less complicated. The EPC contractor should therefore seek to pass down all main obligations from the EPC contract onto its subcontractors to mitigate its liability position.

In return for taking on a high amount of risk as to time and cost, contractors may reflect this in their pricing and may include a substantial risk premium in the contract price. Owners can mitigate this to some degree by procuring EPC contracts in competitive tenders where the lowest price is often the decisive factor. That, in turn, often results in EPC contracts carrying a risk of change orders / variations which can become very costly to the owners if agreed or potentially catastrophic to those contractors who haven’t included a sufficient risk premium when submitting a low price proposal, leading to a focus on cost control by the contractor.

In these unprecedented times, the risk of force majeure events, effects of a change in law, risk of supply chain disruptions and the risk of integrating the performance of the entire supply chain have posed a particular challenge for contractors.  As a result, contractors may become more reluctant to take on some of these risks and may seek to exclude or set parameters around their liability for such risks or owners may see tenders with higher risk premiums. 


Where the owner wishes to retain greater control over the project, the owner may opt for an EPCM contracting structure. 

The EPCM or ‘engineering, procurement and construction management’ contract is a construction management agreement whereby the EPCM contractor is responsible for advising the client on the design and procurement of the project but also for overseeing and managing all construction and supply contracts. An EPCM contract can therefore be seen more as a professional services contract in contrast to EPC contracts which are design and construction contracts. The EPCM contractor does not perform construction work. It is the owner who directly enters into numerous contracts with various contractors and suppliers. 

EPCM has many advantages for owners, including greater flexibility allowing projects to be tailored to current conditions as owners can modify the design or procurement plan mid-project and negotiate directly with the relevant contractors or suppliers. This can mean early engagement of certain packages prior to finalising the scope of work which may result in an earlier completion date. 

The overall price of the project under an EPCM arrangement may be lower as most of the risk priced for in EPC contracts sits with the owner and the owner is able to negotiate with the supply chain itself. 

EPCM also has disadvantages. The administrative burden of the owner directly negotiating and contracting with each of the contractors or suppliers is far greater than under EPC and significant demands are placed on the owner’s skills and resources (although the EPCM contractor may be able to ease this burden). Interface risk and coordination between each contractor or supplier needs to be managed and this often sits with the owner.  Where a dispute arises, this is also more complex for the owner due to difficulties in allocating fault and risk amongst multiple contractors, rather than having a single point of responsibility as under EPC contracts.

However, from our experience, most of these disadvantages can be reduced by way of proper implementation strategy, planning, contracting and management. 

Both EPC and EPCM have advantages and disadvantages but can be beneficial when used in the right circumstances. The objectives, scope of work and risk profile should be clearly understood in choosing which method to use as the cost implications of choosing the incorrect form can be substantial for both parties. 


Construction news outlet Construction Executive has again recognized K&L Gates LLP among the top 15 firms in the publication’s rankings of the 50 leading law firms throughout the United States with dedicated construction practices.

The survey, “The Top 50 Construction Law Firms,” considered practice-specific revenue; number of lawyers in the practice; percentage of firm’s total revenues derived from its construction practice; number of states in which the firm is licensed to practice; and the year in which the construction practice was established to develop the rankings. The busiest areas of practice were also discussed; dispute resolution, construction defects, and contract documents and administration are dominating the share of legal work for firms surveyed.

K&L Gates has one of the most diverse and technically skilled construction law practices in the world, with its lawyers working with clients throughout each phase of the industry, from the early stages of finance, development, and design through implementation, construction, and project close-out. The group often partners with lawyers across practice areas such as mergers and acquisitions, labor and employment, real estate, intellectual property, and immigration to fully serve clients across the firm’s platform.

COVID-19: UK Public Sector Construction – Cabinet Office publishes FAQs regarding PPN02/20

Authors: Matthew E. Smith, Inga K. Hall, Kiran Giblin

Further to our recent blog post “COVID-19: UK Public Sector Construction – cash flow relief for suppliers” on 31 March 2020, in which we set out guidance on the Government’s Procurement Policy Note – Supplier relief due to COVID-19 PPN 02/20 (“PPN02/20”), the Cabinet Office has published a FAQs note providing further clarity and guidance regarding implementation of PPN02/20 in practice.

The 17 initial questions addressed in this FAQ note range across providing definitional clarity on terms used, further detail on how to make use of the Model Interim Payment Terms also published, the extent to which suppliers can also make use of other relief, such as via the Coronavirus Job Retention Scheme, and employers’ rights in terms of repayment, continued discharge of obligations, protection from double payments and the preservation of other contractual rights and remedies.

To read the full alert, please click here.

COVID-19: UK Coronavirus Act 2020 – Implications for the Construction Industry

 Authors: Inga K. Hall, Saya Lee

The 359-page emergency Coronavirus Bill received royal assent on 25 March 2020. This newly passed Coronavirus Act 2020 (the “Act”) contains extensive powers and additional measures to equip the UK government and other authorities to better respond to the COVID-19 outbreak in the UK. The new Act is time-limited to two years by a sunset clause (Section 89) and will be subject to six-month parliamentary reviews (Section 98)

The Act is primarily aimed at easing the burden on the frontline staff working for ‘essential services’ including the NHS, schools, police and courts, as well as providing measures for containing and slowing the spread of the virus and supporting businesses and workers. Although there are no sections in the Act specifically addressing the construction industry, the wide-ranging powers that are granted to the authorities to enable such actions and outcomes also have the potential to have an impact on the construction industry as summarised below.

For the full alert, please click here.

COVID-19: UK Public Sector Construction – Cash Flow Relief for Suppliers

 Authors: Daniel T. Lopez de ArroyabeInga K. HallKevin Greene

The impact of COVID-19 on the construction industry has been the subject of much debate this week, as discussed in our blog article “COVID-19 Construction Industry – Operating in a Pandemic”, with businesses split over whether or not to shut down operations in order to protect the health and safety of those working on construction sites. The division has been exacerbated by the lack of a clear Government directive either way, meaning that it has – for the time being at least – been left in the hands of individual companies to decide whether or not to stop work.

While that issue continues to divide opinion, what is clear is that the pandemic and the fall-out from it will place an unprecedented strain on supply chains, and one of the main challenges currently faced by the industry is how to maintain cash flow so that businesses are able to survive and continue working once we emerge through the other side. In this regard the Government has taken steps to provide further clarity and guidance, with the publication on 20 March of Procurement Policy Note – Supplier relief due to COVID-19 PPN 02/20 (“PPN02/20”).

Taking immediate effect until 30 June 2020, PPN02/20 applies to all contracting authorities (including central government departments, executive agencies, non-departmental public bodies, local authorities and NHS bodies) and covers goods, services and works contracts being delivered in the UK.

To read the full alert, please click here.

‘Fitness for Purpose’ and Conflicting Obligations in Offshore Wind Projects

Authors: Charles Lockwood and Owen Chio

Two recent cases in the UK illustrate the tricky issues Employers and Contractors have to grapple with in defining the responsibilities of contractors involved in the construction of offshore wind projects.

There are no established standard form contracts for offshore wind farm projects. The standard forms that are often adapted for this purpose include traditional offshore forms used in the oil and gas industry such as the LOGIC forms and standard engineering contracts more commonly used for onshore projects such as FIDIC, particularly the FIDIC Yellow Book.

Neither form is ideally suited for use in the offshore wind industry and they are often heavily amended, particularly in relation to design obligations. The cases summarized below illustrate some of the tensions that can arise, particularly in relation to design and fabrication of monopiles and transition pieces and requirements that they should be fit for their intended purpose.

To read the full alert, please click here.

COVID-19: Coronavirus Concerns Prompt Two-Week Halt to All Construction in Boston

 Authors: Steven P. WrightJohn L. Gavin

Another industry felt the impact of coronavirus (COVID-19) on Monday, March 16, when, amid growing concerns over the spread of COVID-19, Boston Mayor Martin J. Walsh announced a two-week halt to all construction projects in the City of Boston. Boston’s construction ban went into effect on Tuesday, March 17, and will last at least two weeks. Although the implementation of COVID-19 prevention measures has increased across the nation in recent days, Boston’s construction ban is the first of its kind in the United States. This alert discusses the impacts of the construction ban, as well as the broader implications of the ban in Boston and for the rest of the nation.

To read the full alert, please click here.

For more information and resources on COVID-19, please click here.

NEC4 Update – May 2019

By: Nicola J. Ellis and Charles D. Oliver

On 1 March 2019 the NEC published a revision to the NEC4 suite of contracts, first published in June 2017. Whilst generally focused on addressing typographical errors and/or terminology corrections, a more significant amendment has been made to clause 63.5 – a new clause introduced in NEC4 but subsequently critiqued for a lack of clarity.

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FPSO Europe Congress 2019

K&L Gates was delighted to participate in the FPSO Europe Congress 2019 in London 19-20 February, 2019.  K&L Gates partner Jeremy Farr chaired roundtable discussions on developing strategies for successful construction or conversion projects and spoke in plenary on the lessons the industry can learn to protect budgets based on his many years’ of experience of FPSO construction/conversion disputes.

Click here to access Jeremy’s presentation, “Experiences of FPSO/Construction Disputes: Learning the Lessons to Protect Budgets”

Click here to see a sneak peek into into Day 1 of the conference!

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