Bath and North East Somerset Council has today (8 April 2005)
informed Mowlem, the contractor responsible for building the Spa,
that their contract is at an end and has instructed them to leave
the site with the words “enough is enough”.
Ever since the project plunged into construction problems with
peeling paint back in August 2003, the Council has, by its own
admission, struggled to keep Mowlem committed to completing the
project. As client, the Council has had to work through the
Architect and Contract Administrator Nicholas Grimshaw as the
architect and builder blamed each other for a host of problems.
The Council is now taking direct control of the project by
removing the contractor and appointing a new Contract
Administrator/Project Manager (Capita Symonds). They will
carry out an audit of the physical state of the building and then
complete it using specialist contractors.
“The problems which hit the headlines – peeling paint and
leaking floors – are not the only issues we have had with Mowlem,”
reveals John Betty, the Council’s major projects director. He was
recruited just after Christmas to bolster the Council’s Spa Project
team.
The final straw came this week. The Contract Administrator
(Grimshaws) instructed the builder to replace the floor in the
steam room. It had been taken up to discover the reasons for the
leaks. Mowlem has refused to confirm that it will comply with this
instruction (known as an Architect’s Instruction or AI) issued on
24 March 2005 and this is reminiscent of the prolonged legal battle
over the peeling paint. The architect states the problem is poor
workmanship, the builder says it is poor design. Stalemate.
Again.
The Council has gone to great lengths in its efforts to persuade
the builder to try and get the project completed. It has had to
resort to the courts simply to get issues resolved.
A divorce was on the cards in the summer of 2003 when the
Council had to announce the Spa was not about to open. The Council
can today give an insight into the poor relationship which existed
back then: Mowlem initially refused to let the Three Tenors inside
the building for a press photo-shoot unless the Council signed a
certificate agreeing the building was ready for operation (known as
Practical Completion).
It was just as well the Council didn’t give way. Within days
came the discovery of peeling paint. This was a turning point. The
architects asked Mowlem to remove the paint to find out why it was
peeling. They refused and on top of that wouldn’t allow anyone else
access to investigate.
The Council wanted the builder to do the job they were required
to do but it had to go to court twice in order to get access to the
Spa so another contractor could do the job properly.
[See documents 1, 2 and 3, STATS pool paint report
summary, pool paint injunction and pool paint injunction
appeal]
But before the painting was complete, a fresh problem emerged.
The building leaked – and leaked on three floors.
The Council wanted the builder and the architect to get on and
resolve the problem. The only party who couldn’t be at fault for
the floors was the Council which didn’t design them or lay
them.
But neither the architect nor the builder seemed able to resolve
the problem, meanwhile the Council was subjected to a series of
opportunistic publicity attacks while it was acting responsibly and
in accordance with contract.
Imagine the Council’s frustration to then have the intervention
of the Construction Minister. He enthusiastically supported Mowlem
calling it a builder of international renown while calling the
Council (which was abiding by top legal and building industry
advice) incompetent.
The difference between the Minister and the Council was
illustrated by the Minister’s criticism of the Council for not
allowing the press inside the Spa. Every industry expert knew it
wasn’t within the Council’s gift to do this. Only the builder (who
at that stage has the right to occupy, exclusively, the building)
can agree – or not – to allow anyone inside.
The Minister was backing Mowlem and bashing the Council. He only
gave Mowlem’s view and did not seek the views of either the
Council, Grimshaw or other partners.
The status of the Minister’s visit and intervention is being
pursued.
[See document 4, letter from Cllr Hanney to DTI over Mr
Griffiths’ status]
Then there is the issue of the leaking floors.
While Mowlem showed its invited guest, Nigel Griffiths, around
the Spa, the Council was fully aware of a catalogue of workmanship
issues starting with pool paint and including the steam room
floors.
To inform the public the Council is able today to provide a
summary of the workmanship issues, prepared by the councils
experts, Bickerdike Allen, concerning the steam room floor.
[See document 5, Bickerdike Allen leaking floors
report]
In the Council’s opinion Mowlem sought to use a propaganda war
against the authority to try and force it to accept their position.
This appeared to require the Council dropping all its legal claims
and paying Mowlem still more to have the Spa finished. It was
while the Council had to bite its tongue (its portfolio holder Cllr
O’Flaherty could not see inside the Spa unless she agreed not to
speak to the press afterwards), Mowlem issued a three-page news
release full of gratuitous and misleading statements claiming that
it had offered to do the job properly for £26 million and within
six months.
[See document 6, Mowlem gags Councillor]
The ‘offer’ referred to was shorter than the press release and
amounted to a publicity seeking gesture. It didn’t even contain the
much publicised offer price.
[See document 7, Mowlem Design and Build letter 15 Dec 04
to the Council]
The Council was in the media spotlight, yet it had still not
received an offer which matched Mowlem's press statement of 4
February 2005. The purported ‘offer’ didn’t arrive until 10 March
2005.
The Council can today give an insight as to what was going on at
the time. Mowlem had publicly claimed it had submitted a Design and
Build proposal. In reality it tried to insist that the Council
should drop its legal case against them concerning the paint before
it would hand it over. The Council refused. Mowlem then
responded by insisting that a Confidentiality Agreement was
required.
The £26 million quoted in the press seemed to involve Mowlem
finishing the Spa for a minimum of £15 million more than the price
it tendered. With other increases along the way, this was at least
£8.5 million more than the Council’s budget.
[See document 8, original tender price]
In terminating the contract today the Council have also formally
rejected the Design and Build proposal.
The peeling paint, the leaking floor, the unacceptable design
and build offer and the inadequate response to the recent
Architects Instruction has forced the Council into saying ‘enough
is enough’
The Council believes that this catalogue of errors, omissions
and events represents a breach of the contract by Mowlem.
The Council is today making arrangements to obtain possession of
its Spa as a physical act to reassert its authority over the
project. The Council will employ specialists, who will act
professionally and demonstrate care, attention to detail and who
have an enthusiasm to get the Spa finished and open.
Councillor Nicole O’Flaherty, the Executive Member with
responsibility for the Spa said: “This certainly wasn’t an easy
decision. The time had clearly come when the Council needed to
intervene and take positive action. I see this as the end of a
nightmare and the start of a new beginning. The past two years have
been a very difficult chapter.”
Cllr Malcolm Hanney, Executive Member for Resources, and a
councillor who didn’t support the Council taking the development
risk on the Spa said: “The Council has a responsibility to its
taxpayers. We cannot stand by and have Mowlem add many millions to
the bill for the Spa.”
