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FRANK EXCHANGE OF VIEWS AS COUNCIL SACKS SPA CONTRACTOR MOWLEM

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Bath and North East Somerset Council have informed Mowlem, the contractor responsible for building the Spa, that th...
Bath and North East Somerset Council have 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 last 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£26m 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 claimedit 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£26m quoted in the press seemed to involve Mowlem finishing the Spa for a minimum of£15m more than the price it tendered. With other increases along the way, this was at least£8.5m 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.

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.'

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.'

Links to the documents mentioned in this press release will be activated as soon as possible.

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