Chapter 66: The contribution of the Tenant Management Organisation

Chapter 66: The contribution of the Tenant Management Organisation

¶66.1 Responsibility for the dangerous condition of Grenfell Tower following the refurbishment project, including the presence of combustible materials in the walls and around windows, rests primarily on those who designed, constructed and approved the work and some of those who manufactured and sold the materials they used. However, the TMO itself must take a share of the blame for the disaster. In Chapters 51, 53, 54 we have made a number of criticisms of the TMO in its role as client and in Parts 4 and 5 we have described certain shortcomings in its management of the building. Overall, we have concluded that as the client for the refurbishment, the TMO failed to take sufficient care in its choice of architect and paid insufficient attention to fire safety matters, including the work of the fire engineer.

The procurement of professional consultants

¶66.2 Neither Mark Anderson, the interim Director of Assets and Regeneration, who was primarily responsible for managing the project, nor anyone else within the TMO, gave proper attention to the choice of architect for the refurbishment project, being content to acquiesce in the desire of RBKC to engage the team that it had used on the KALC project in the hope of reducing both cost and delay.^32613261 Chapter 52. Minimising cost and delay was a laudable aim, but not one that could justifiably be pursued at the risk of appointing a firm that lacked the necessary experience.

¶66.3 As a result of the TMO's decision to appoint Studio E, there was no competitive process for the appointment of the architect and therefore no independent assessment of its experience in designing a project of the kind under consideration.^32623262 Chapter 52. Instead, the TMO assumed that Studio E had the skills, knowledge, experience and resources to carry out a high-rise residential overcladding project, which was fundamentally different from designing a school or leisure centre. That assumption turned out to be incorrect and led to a series of decisions which had disastrous consequences.

¶66.4 As the client under the CDM Regulations 2007, the TMO had a duty to take reasonable steps to ensure that any designer, principal contractor or contractor it appointed was competent to take on the role in question^32633263 {INQ00011315/4} Regulation 4(1). and had allocated sufficient time and resources to the project.^32643264 Regulation 9 of the CDM Regulations 2007; Approved Code of Practice L144 {INQ00013936/15} paragraph 43 (a); {INQ00013936/16} paragraph 47. There is no evidence that the TMO was aware of that obligation.

¶66.5 The TMO ought to have taken steps to satisfy itself that Studio E had, or could obtain, the right skills and resources to carry out the work efficiently. If it had done so, it would have learnt that Studio E had no experience of overcladding a high-rise residential building and in those circumstances it might have looked elsewhere for an architect or insisted that Studio E hired someone with expertise in facade engineering.^32653265 Hyett {Day63/86:2}-{Day63/87:23}; {Day64/3:20}-{Day64/4:3}.

¶66.6 The failure of the TMO to concern itself with Studio E's previous experience is all the more remarkable in view of the fact that one of the residents of Grenfell Tower had raised that very question. At a meeting of the Lancaster West Estate Management Board on 15 May 2012, at which representatives of the TMO and Studio E were present, Edward Daffarn asked whether Studio E had experience of working on tower blocks and, if not, why it was proposed that it should be appointed as architect for the refurbishment.^32663266 Treasury Report of 15 May 2012 at {TMO00848807/4}. Although he was told by Cllr Coleridge at some stage that Studio E had been chosen in the interests of financial and practical efficiency, it does not appear that Mr Daffarn ever received an answer to his question from the TMO.^32673267 Daffarn {Day118/20:17}-{Day118/22:1}. It certainly never prompted the TMO to ask that question of itself or anyone else.

Avoiding the procurement rules

¶66.7 We have described in Chapter 52 how in order to avoid holding a formal competitive procurement procedure for professional services the TMO insisted that the architect's fees for work carried out before the appointment of a principal contractor be capped at £174,000.^32683268 Chapter 52. Since that was insufficient to cover the amount of work required to produce the tender documents, it was necessary to resort to the device of deferring part of those fees until after the principal contractor had been appointed.^32693269 Chapter 52. We need hardly say that it was quite improper for the TMO to resort to a scheme of that kind in order to evade the rules on procurement and, as Simon Cash implicitly accepted,^32703270 Cash {Day48/113:19}. Artelia, as employer's agent, ought to have made it clear to the TMO that it was in breach of procurement rules by capping the fees of its consultants. Instead, it appears that it simply acquiesced in the TMO's plan. The unfortunate practical result was that the TMO deprived itself of the opportunity to select an architect from a wider range of applicants, some of whom might have had more relevant experience.

Failure to notice that Exova's work was incomplete

¶66.8 It does not seem that anyone at the TMO read any of the versions of Exova's Outline Fire Safety Strategies, in detail or at all, even though they were produced for it as Exova's client.^32713271 Williams {Day55/69:14}-{Day55/70:19}. Both the draft Existing Fire Safety Strategy and the draft Outline Fire Safety Strategy should have been documents of particular interest to the TMO, both as a client which was managing works in a mixed-use occupied residential block and as the responsible person under the Fire Safety Order. The TMO should have taken care to make sure that the safety of the residents from fire had been comprehensively and finally addressed in detail. Instead, it assumed that others had considered the fire safety of the building and failed to appreciate its own responsibility for a matter of such importance.

¶66.9 David Gibson, Peter Maddison and Claire Williams should all have read Exova's fire safety strategies carefully. In our view, the draft Outline Fire Safety Strategy was not difficult to understand and they should certainly have noticed that, in relation at least to the external wall, the advice it contained was provisional only. It appears, however, that none of them read it or, if they did, that they did not take proper note of its contents.^32723272 Gibson {Day53/142:23}-{Day53/143:22}; Maddison {Day59/122:11}-{Day59/128:20}. If they had paid attention to what it said, they would have realised that the strategy was incomplete in relation to functional requirement B4(1) and that it required further work.

¶66.10 There were at least two occasions during the life of the project when it was made clear to the TMO that Exova's work was incomplete. Terry Ashton told Claire Williams on 4 November 2013 (three days before Issue 3 of the Outline Fire Safety Strategy was produced) that after invoicing everything as of that date, there would be a balance remaining from the initial quotation.^32733273 {TMO00855925}. That should have alerted her to the fact that Exova had not by then done all that it had expected to do under its contract. By November 2013, many key design decisions had not been made, including the choice of rainscreen cladding. If anyone at the TMO had turned their minds at that stage to the point, they would have realised that the fire safety strategy had not been completed and that further work had to be done on it. Not to have done so was a serious failing on its part.

Failure to challenge Rydon's decision not to appoint a fire safety consultant

¶66.11 The TMO failed to ask why a fire engineer had not been engaged by Rydon after it had been appointed as principal contractor. The matter was raised at successive project meetings between June 2014 and October 2014 attended by the TMO and was mentioned in the minutes as requiring action by Rydon.^32743274 Chapter 54. After October 2014 the matter ceased to be mentioned in the minutes, but the TMO appears to have taken no steps to find out whether a fire engineer had been appointed and if not, why. The TMO ought to have obtained a clear decision from Rydon and, if Rydon was unwilling to appoint a fire engineer, an explanation for it. Although Artelia, as employer's agent, should have asked the same questions, the TMO as the employer had a responsibility of its own to monitor the work and ensure that it was being carried out effectively. In that case it failed to do so.

¶66.12 The TMO continued to retain the services of Exova, but in an unstructured way and on ill-defined terms. Members of the design team sought its advice from time to time, even though it was not a member of that team and had no insight into its thinking. The TMO paid for that advice as and when it was given but took no steps to clarify the terms of Exova's engagement or to understand what services it wanted it to provide.^32753275 Chapter 54.

¶66.13 In these, as in other respects, the TMO relied too heavily on its professional advisers and failed to take responsibility for ensuring that the work was being carried out properly.

Failure to resolve fire safety concerns

¶66.14 Having raised the fire performance of the cladding with Rydon in her email of 12 November 2014,^32763276 Chapter 55. Claire Williams ought to have insisted on receiving a written response to her question. The matter was too important to be allowed to pass without comment. The fact that it had to be asked at all, in particular at what was a relatively late stage in the project (a year after the NBS Specification had been produced), is a matter of criticism in itself. The fact that an answer was not obtained is difficult to explain, even as an oversight.

Failure to involve residents

¶66.15 Since the refurbishment was being carried out while the building was occupied, it was particularly important for the TMO to engage with and consult the residents, both of the tower and of the surrounding area, in a meaningful and constructive way. Regrettably, however, it did not comply with the consultation and participation requirements in Schedule 3 of the Management Agreement.^32773277 Volume 2, Chapter 2, Schedule 3 of the 2006 Modular Management Agreement {RBK00019006/163}. No client review group^32783278 Paragraph 2.1 of Schedule 3 {RBK00019006/165}. was established and no one from among the residents was nominated to join the project team or take part when consultants were appointed.

¶66.16 Similarly, as we have found in Chapter 53, any engagement the residents had with the procurement process was largely symbolic. Although consultation exercises and meetings with residents did take place,^32793279 See for example Sounes {Day 21/34:21}-{Day21/56:4}. they were given no formal role and had no voice during the refurbishment. In particular, they were given no opportunity to question or challenge key decisions, including decisions on the appointment of consultants and matters affecting fire safety.