The view from the Ivory Tower – Resolving an onerous qualification requirement

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By Giovanni Cautillo

Special to Ontario Construction News

One of the mainstays of the Ontario General Contractors Association (OGCA) is to assist our members with issues arising from contract documents and buyers of construction issuing onerous, one-sided and otherwise, dictatorial language. Luckily, the OGCA has had a great deal of success in reversing otherwise problematic conditions in tenders prior to the award of a contract.

In this article, I wanted to communicate just one such issue that has recent arisen, and that is not only problematic from a construction standpoint, but would actually single-handedly counteract countless decades of progress in construction.

Recently, a number of members brought to the attention of the OGCA some “interesting” tender conditions. These conditions were specific to the qualification requirements for the company’s Construction Site Safety Manager.

The buyer of construction in question was either far more knowledgeable that all of the ICI construction sector combined (heavy sarcasm!), or clearly making conditions so onerous so as to reduce the pool of eligible bidders down to perhaps one. Since “sole sourcing” is not allowed in public procurement, at times the buyers of construction will utilize this tactic, with varying degrees of success, to bypass the restriction. That is, of course, if the OGCA is not made aware of the attempt.

Luckily, the OGCA was made aware of the language that was in the tender which read as follows:

The Construction Site Safety Manager must be an occupational health and safety specialist who designs and implements safety regulations to minimize injuries and accidents on construction sites. He or she also may conduct daily safety audits and inspections to ensure compliance with government regulations.

Suppliers must provide the following requirements for the Construction Site Safety Manager:

  • Bachelor’s Degree in Construction Management, Occupational Health and Safety, Engineering, or a related field, and
  • Bachelor’s Degree in Construction Management, Occupational Health and Safety, Engineering, or a related field, and
  • 10 years’ experience as a Construction Site Safety Manager

This is not an entry-level position and individuals will require years of experience working in occupational safety before they can advance to the management level. Safety Managers will often split their time between offices and construction sites, and they may be required to work irregular hours during emergencies. The job holds the potential for injury, particularly during fieldwork.”

The OGCA strongly objected to the use of this language within the proposed tender for the following reasons:

Firstly, this language was a clear deviation from previous tenders from the same buyer of construction wherein they initially required that a bidder’s company be compliant with a Ministry accredited Health and Safety program. The OGCA argued that the construction industry clearly understands and supports the requirement for the company bidding to have its certification in either CORTM, ISO 450001, CSA Z1000, or equivalent. That initial tender condition is fully reasonable and logical from the perspective of the OGCA and the entire ICI construction industry. We all value health and safety and the above noted designations provide for the caliber of company oversight that is required by all OGCA general contractors.

The OGCA argued instead that the issue is when the buyer of construction is further limiting a company’s ability to bid the project with overly stringent language specific to the health and safety individuals employed by said company. In this instance, the role of Construction Site Safety Manager, specifically the onerous requirement that they hold a Bachelor’s Degree in Construction Management, Occupational Health and Safety, Engineering, or a related field as well as having at the minimum 10 years’ experience as a construction site safety manager.

In essence, the buyer of construction, through this overt language, is openly discriminating against any construction site safety manager that does not satisfy this overly onerous requirement. Due to this specific condition, the bidders on this project would either need to qualify their tender submissions or completely refrain from bidding this project.

Secondly, the OGCA objected to this language since a majority of those in the role of Construction Site Safety Manager began their careers on the “tools” and in the “field.” The path of obtaining a Bachelor’s Degree in Construction Management, Occupational Health and Safety, Engineering, or any degree was not their path. Instead, through hands on experience, field work and obtaining the requisite health and safety training, those individuals have risen to the position of Construction Site Safety Manager or equivalent designation. And yet, these individuals are completely overshadowed due to the stringent nature of the buyers’ current tender requirements.

Thirdly, should a contractor employ an external third-party firm for their health and safety needs, then this condition also negates the ability for a contractor to use these exterior agencies since the vast majority of the specialist they employ are also field trained and do not hold any Bachelor’s Degree.

The OGCA openly challenged the buyer of construction and wanted an explanation as to why the buyer had engaged the position that those who have not taken the university path are somehow lesser in nature than those that have? The message that this condition broadcasts to the entire ICI construction industry was that “if you do not hold a university degree then you need not apply!”

The OGCA saw this condition as overly burdensome since with the workforce diminishing in construction, and far fewer individuals having both a university degree and the requisite criteria to satisfy this condition, one would make the assumption that the buyer of construction would be more welcoming and accommodating with their tender conditions. Instead, through the use of this language, the buyer of construction was opting to make their tenders far more onerous and, as the OGCA noted, unless the language was amended accordingly, the bidders would have no choice but to qualify their tender submissions or refrain from bidding this project entirely.

The OGCA submitted our objections directly to the buyer of construction and to all of the bidders who were contemplating providing pricing on this project. The OGCA spoke on behalf of the ICI industry, and we are happy to report that due to our intervention, the buyer of construction has amended the initial tender language. This is a small victory for now, but we want all of our members to be aware that this is exactly the type of language, that if left unchecked, would compound in nature through other tenders.

Please read your tenders completely and should any member come across contract language that is onerous, one-sided and otherwise dictatorial, or if you require any assistance from the OGCA, please contact me directly at giovanni@ogca.ca or via phone at (905) 671-3969.

Giovanni Cautillo is the OGCA’s president. This story is a slightly edited version of the writing originally published in the association’s internal newsletter.

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