Around Australia, the issue of building products which do not comply with standards as set out in the National Construction Code has generated considerable levels of attention ever since fire ripped up the side of the building and rose 15 floors within minutes amid what was later found to be combustible cladding.

Behind the political debate, however, a crucial question for many builders revolves around how to ensure that products used within their own projects meet the required standards.

First, it is important to understand the principles behind the building product conformance framework. As set out in the Procurement of Construction Products: A Guide to Achieving Compliance guide published in 2014 by the Australian Procurement and Construction Council (and as almost all builders would know), all building work throughout Australia is subject to performance requirements as specified under the Building Code of Australia. The Code has legal effect throughout the country via various acts of state and territory building legislation and which sets out requirements which a broad range of building products and systems must meet.

Along with calling up ‘referenced documents’ such as Australian Standards in order to provide technical details with regard to the performance requirements of materials, the Code spells out five different types of substantiation or evidence which are able to be used in order to verify that indeed the product in question is compliant. These range from a specific report issued by a relevant testing authority, a current certificate of conformity, certification from an engineer or design professional, a current certificate issued by a product certification body that has been accredited by the Joint Accreditation System of Australia and New Zealand or any other form of document which correctly describes the performance of the material and demonstrates its suitability for use in the building.

Although specific types of evidence are required in some cases where conformance with the Code is set to be achieved through a deemed to satisfy solution, in many cases, it is up to the procurer of products and the building approval authority to decide upon the type of evidence which is appropriate for each given product.

In addition, compliance is further assisted by a number of mandatory and voluntary certification schemes. With regard to mandatory schemes, certain plumbing and drainage products are required to be registered under the WaterMark Scheme, whilst some electrical products are required to be certified as compliant under the Electrical Equipment Safety Scheme.

In addition, a number of industry associations run voluntary compliance schemes in areas such as concrete, engineered wood products, glazing and window products, electrical cables, lighting and insulated panels. By selecting and using products which are approved under these schemes, designers and builders can have a level of confidence that compliance has been demonstrated with regard to the product in question.

In terms of legal responsibilities, builders are subject to common law principles in this area and could potentially find themselves liable for action relating to damages or negligence and breach of contract. In a residential setting, however, a number of specific responsibilities are codified under various forms of domestic building contract legislation which applies in every state. Whilst specifics vary from state to state, these laws broadly require that with regard to work on domestic premises, the builder must include within their contract with the consumer a warranty concerning that all products supplied for use in the building will be good and suitable or proper for the purposes for which they are used and that the end product will reflect good quality workmanship.

So where do contractors go wrong?

According to Kristin Brookfield, senior executive director of building, development and the environment at the Housing Industry Association, one possible area might revolve around excessive reliance upon subcontractors to ensure that the material provided by the subcontractor is indeed the same product which is specified in the plans.

Whilst it is neither realistic nor necessary to check every item, it is important for contractors to have a process in place to ensure items which have a major structural or safety impact are the same as those specified. Where product substitution does take place – say, for instance, because you have run out of something on site – the contractor should ensure that they or their subcontractors secure adequate levels of substantiation to satisfy verification requirements contained in the BCA for the replacement product in question and that appropriate contract variations and approval amendments are granted.

A further possible area of problems revolves around an assumption that the building surveyor has in fact performed adequate checks that products specified in the approval do indeed comply with the Code. Whilst this is a logical assumption, Brookfield says that in residential settings where the builder has been substantially involved in and/or responsible for preparation of the design, there is a danger that the surveyor may have largely in turn relied upon the builder to have done his own homework. This could potentially create a circular type of situation where both parties simply relied upon the other in order to ensure that adequate levels of substantiation have been obtained.

In what might be more likely a multi-residential or commercial setting in which the head contractor is largely operating from plans produced by others, Brookfield says they should perform their own checks in order to confirm that all necessary paperwork with regard to ensuring that suitable levels of substantiation with regard to compliance is in place.

From a legal perspective, construction industry lawyer Kim Lovegrove says the builder in a domestic situation faces an interesting dilemma in cases where he or she is working off specifications and plans prepared by others.

Taking the situation in Victoria, for argument’s sake, Section 8 of the Domestic Building Contracts Act states clearly that he or she must build ‘in accordance with plans and specifications set out in the contract.’ Under that same section, however, the builder is required to warrant under that all materials which he supplied were ‘good and suitable for the purpose for which they are used’ and that the work will be carried out in accordance with the Building Act 1993 and regulations.

This presents a difficult situation whereby a builder is given specifications for products that do not comply with the Code: he or she is obligated to build according to the plans and specifications which they are given, yet there is also an obligation to ensure quality workmanship and that the goods in question are good and suitable.

On a legal basis, Lovegrove says, builders in a domestic setting would be liable in cases where they knowingly installed a defective product. Where they innocently install defective materials which are specified in the plans and specifications, the builder will likely have a defence and the primary liability will rest with others. In the situation where he or she goes on site and finds that a product specified will not work properly, he says the builder should seek a written variation from the client as well as an amendment to the building permit.

Moreover, Lovegrove said, all of this points to the need for a national registry and accreditation body for all materials imported into the Australia.

“With the flood of imported materials coming into the country, absent there being an independent statutory authority that totally ‘clean bill of healths’ them…how is anybody going to know whether the imported product has got an inherent vice or not?” he said.

So what do builders need to do on site?

First, Brookfield points out, it is important to decide which products are important from a compliance perspective. Obviously, a door handle on a kitchen cupboard is not as critical as a load bearing wall or electrical product. Since it is not generally realistic for builders to check each and every product, compliance efforts should focus upon those which cause most damage if and when they malfunction.

Beyond that, they should check that the product supplied and installed is that which is nominated in the approved plans and specifications and that appropriate evidence of conformity is provided in accordance with the contract documents.

Where this is the case, evidence of this should be retained as part of the contract documentation. Where this is not the case, however, the builder should attempt to obtain suitable evidence from the supplier and consider either undertaking inspection or testing if such evidence is not available.

Where the required compliance cannot be demonstrated, the APCC Procurement Guide to Construction Products recommends that the product not be used. In that case, as Lovegrove said, appropriate variations and amendments to plans should be sought.

Twelve Crucial Principles:

As per outlined in the APCC guide, critical principles which underpin product overall product selection and compliances are as follows:

1: All relevant legislation must be complied with including, but not limited to, building, workplace health and safety, and consumer laws.

2: Contract documentation should clearly specify product standards and the required evidence of conformity. Product standards should refer to relevant Australian Standards. Where there are no relevant Australian Standards, relevant international standards or authoritative industry sources should be utilised.

3: All construction products procured should conform to the requirements in the contract documentation.

4: The selection of the required evidence of conformity should be based on the intended use and risk exposure (likelihood and consequence of failure) of each construction product.

5: Construction product conformity requirements should refer to relevant Australian Standards. Where there are no relevant Australian Standards, appropriate international standards or authoritative industry sources should be utilised.

6: Evidence of construction products meeting specified standards should be demonstrated by conformity assessment including, but not limited to, product certification or inspection, as set out in the contract documents

7: Evidence of the source of construction products and their authenticity should be obtained and retained.

8: Project managers should obtain and retain contemporary and credible documentary evidence to demonstrate conformity of all construction products.

9: Responsibility for managing conformity assessment outcomes at each stage of the project should be appropriately allocated in the contract documentation.

10: Where third party conformity assessment bodies are relied upon to provide evidence of conformity, they should be accredited by:

• Joint Accreditation System of Australia and New Zealand (JAS-ANZ) – for product certification, management systems, certification and inspection bodies
• National Association of Testing Authorities, Australia (NATA) – for testing and calibration laboratories and inspection bodies
• Accreditation bodies that are signatories to relevant international multilateral/mutual recognition arrangements and have the relevant scope associated with the conformity assessment activity.

11: Where construction products are supplied without required evidence of conformity, or where doubt exists about product conformity, product testing to an appropriate level may assist in ascertaining construction product quality.

12: Without adequate evidence of product conformity, the product should not be used in construction.

Detailed guidance with regard to how to ensure products used in your project are compliant with the Code can be seen through the Procurement of Construction Products: A Guide to Achieving Compliance guide published in 2014 by the Australian Procurement and Construction Council.