1 Wednesday, 25 October 2017 17 MR MACKENZIE: My Lord, the next witness is Susan Clark. 18 MS SUSAN CLARK (sworn) 19 CHAIR OF THE INQUIRY: You are going to be asked some 20 questions by Mr Mackenzie. If you just listen to the 21 question and answer it as directly as you can, and if 22 you keep your voice up and speak at a measured pace, so 23 the shorthand writers can keep up with you. 24 A. Thank you, my Lord. 25 Examination by MR MACKENZIE 95 1 MR MACKENZIE: Good afternoon. 2 A. Hello. 3 Q. Can you state your full name, please? 4 A. I'm Susan Clark. 5 Q. And your current occupation? 6 A. I'm owner and Director of Great Glen Consulting. 7 Q. I would like to start by looking at the CV you have 8 provided to the Inquiry. It's CVS00000055. If we can 9 please start by going to page 3, we can see under 10 qualifications that you have a degree in chemical 11 sciences. You also have an MBA and you are a Prince 2 12 practitioner. 13 Could we please then go to page 2. We can see 14 towards the bottom, underlined heading that between 15 September 1989 and November 2002, a period of about 16 13 years, you had various roles in British Rail, 17 Railtrack and Network Rail. 18 What was the most senior position that you held 19 during that time? 20 A. That would be the Senior Commercial Manager, looking 21 after the Maintenance contract. 22 Q. During what period did you hold that position? 23 A. That would be from -- I recollect about 1999 to 2002. 24 Maybe 2000 to 2002. 25 Q. Thank you. Now, you also have referred to sponsors 96 1 agent, sponsor for various capital projects, and in your 2 statement, you mention a GBP25 million re-signalling 3 scheme at Cowlairs. Was that the biggest project in 4 terms of value in which you acted as sponsors agent? 5 A. It was, yes. 6 Q. If we carry on up the page, the next underlined heading, 7 between November 2002 and January 2004 you were 8 Commercial Manager for Scottish Water Scientific. If we 9 can carry on up, please, we then see between 10 January 2004 and August 2006 you were Project Director 11 for the EARL project while employed by tie Limited. 12 Can you explain the circumstances of your 13 appointment, please? Was this an open competition? 14 Were you approached or what? 15 A. I was approached by an old colleague. 16 Q. Who was that? 17 A. Paul Prescott, who I had worked with in the railway 18 industry. 19 Q. Was Mr Prescott in tie at that time? 20 A. He was, yes. He was actually Project Director for EARL 21 at that point. 22 Q. I see. I was going to ask you about that because 23 I think in your statement you explain you were two years 24 as Project Manager of EARL before then becoming Project 25 Director. I just wondered, you say in your CV you were 97 1 Project Director for EARL through January 2004 to 2 August 2006. Was there a period when in fact you were 3 the Project Manager for EARL? 4 A. That's correct, yes. 5 Q. So what should we take from it, that in January 2004 you 6 started as Project Manager for EARL; is that correct? 7 A. That's correct, yes. 8 Q. So when did you become Project Director for EARL? 9 A. I can't quite recall. I think it may have been about 10 18 months later, but I can't recall the exact dates now. 11 Q. Thank you. 12 Now, can we please go on to page 1. We see at the 13 bottom of the page underlined between August 2006 and 14 October 2011, you were Deputy Project Director for the 15 tram project while employed by tie Limited, and again, could 16 you explain the circumstances surrounding that 17 employment, please, in that did you apply for the post 18 in open competition or were you approached? 19 A. I was asked to transfer over from the EARL Project to 20 the tram project. 21 Q. Who by? 22 A. By Mr Gallagher. 23 Q. Thank you. Would it be fair to say that before the 24 Edinburgh Tram Project, you had no previous experience 25 at all in delivering a tram or light rail project? 98 1 A. That's correct. 2 Q. Would it also be correct to say that you had no previous 3 experience of diverting utility works in a city centre? 4 A. That's correct. 5 Q. Would it also be correct to say that you had no previous 6 experience of the issue of the planning consents and 7 approvals required for building a tram through a city 8 centre? 9 A. That's correct. 10 Q. Finally, just for the avoidance of doubt, is it fair to 11 say you had no engineering qualifications? 12 A. That is correct, yes. 13 Q. To what extent did you consider that your skills and 14 experience were relevant to acting as Deputy Project 15 Director for the trams project? 16 A. I think project management skills encompass a range of 17 skills which are all about managing people, managing 18 processes, and ensuring they have the correct skills 19 within the project team to deliver. And I think I had 20 those skills. 21 Q. Thank you. 22 Sticking with the CV, the first bullet point, you 23 explain: 24 "Responsible for programme, risk and project 25 controls leadership ..." 99 1 So obviously you were responsible for those matters; 2 is that correct? 3 A. My role changed over the duration of me being involved 4 in the tram project, but ultimately I was responsible 5 for a team that managed programme risk and the project 6 controls. 7 Q. So let's try and split it down a little. In terms of 8 the project having an overall programme, a master 9 programme, was that something that remained your 10 responsibility throughout your time as Deputy Project 11 Director? 12 A. Latterly it became my responsibility and I had 13 a programme manager who maintained that overall master 14 programme, yes. 15 Q. Thank you. I think in fact I'll deal with this when we 16 come to your statement, I think it's probably the better 17 way to deal with it. 18 You also, at the bottom bullet point, explain, you: 19 "Led a team of people responsible for the delivery 20 of all advanced works packages including utility 21 diversions, advance earthworks ..." 22 Did there come a point when that responsibility 23 changed? 24 A. Yes. So the advance earthworks were at the depot and 25 those moved over to the Infraco contract. And the 100 1 utility diversions, a project manager was brought in for 2 that, and that transferred away from my responsibility 3 as well. 4 Q. I think again, I'll deal with the timing of that when we 5 come to your statement, thank you. Over the page, 6 please, to page 2 of your CV. The first bullet point at 7 the top says: 8 "Responsible for all project reporting including 9 board papers and reports to Transport Scotland." 10 Is that a responsibility that remained with you 11 throughout your time as Deputy Tram Director? 12 A. So again, that became part of my team's responsibility 13 during the duration of my role, and that was my 14 responsibility by the time I left tie, yes. 15 Q. So when did that first bit become your responsibility 16 approximately? 17 A. I think approximately during 2008, when it probably 18 transferred from the finance team. 19 Q. Do you remember, was that before or after Infraco 20 contract close in May 2008? 21 A. I can't remember now. 22 Q. Thank you. We also then, in the fourth bullet point 23 down, see reference to "Budget, programme and risk 24 management requiring a detailed working understanding of 25 this complex contract". 101 1 The question of the project risk, was that 2 a responsibility you had throughout your time as Deputy 3 Project Director? 4 A. Again, that responsibility transferred into my team 5 during the course of my role as Deputy Project Director. 6 Q. Approximately when was that? 7 A. Again, I think that was probably in around 2008, but 8 I cannot recall the exact date. 9 Q. Okay. We can put the CV to one side, thank you. You've 10 also provided a written statement to the Inquiry. 11 I would like to formally go to that, please. It's 12 TRI00000112_C. I think you've got a hard copy on the 13 desk and there should also be a copy coming up on the 14 screen in a second. 15 I would like to go to the very back page, please, 16 page 72. We can see a signature dated 8 June 2017. 17 Could I just ask you please to confirm that is your 18 signature and this is the written statement you have 19 provided to the Inquiry? 20 A. That is correct, yes. 21 Q. Thank you. Your evidence to the Inquiry will comprise 22 your written statement in its entirety, together with 23 the evidence you give at the hearings today? 24 A. That's correct, yes. 25 Q. Now, sticking with the statement, can we go to page 2, 102 1 please, to try and get a better understanding of your 2 duties and responsibilities. At page 2 of your 3 statement, under question 2 sub-question 2, there is 4 a paragraph that commences: 5 "Programme Director/Delivery Director/Deputy Project 6 Director, Tram". 7 I understand the Deputy Project Director part of it; 8 can I just be quite clear, when you refer to Programme 9 Director, was that throughout the period you were Deputy 10 Project Director? 11 A. So my job title changed. I think I have explained that 12 my responsibilities changed and my job title changed 13 during the period. So I at various times was called all 14 those job titles. 15 Q. That sounds confusing. Is what you're saying that it 16 was -- they happened in sequence. So initially you were 17 Programme Director, you then became Delivery Director, 18 and you then became Deputy Project Director? 19 A. I believe that to be the sequence of events, yes. 20 Q. Are you sure about that? 21 A. Well, it's hard to recollect the exact sequence, but 22 I know I fulfilled all those roles during my time on the 23 tram project. 24 Q. I suppose what's perhaps confusing me is that in your 25 CV, you say between August 2006 and October 2011, you 103 1 were Deputy Project Director, but is that not correct? 2 A. I think in my CV I have tried to keep it very short and 3 summarise, rather than split it down into all the 4 timescales associated with being involved in the tram 5 project. 6 Q. But what we should understand is that initially in 7 August 2006, you were Programme Director for the tram 8 project? 9 A. I understand that, yes. That's my recollection. 10 Q. So when approximately did you become Delivery Director? 11 A. Again, I cannot recall the exact dates. I'm sorry. 12 Q. Do you know whether that was before or after Infraco 13 contract close in May 2008? 14 A. I believe that would be before, because I think that was 15 associated with delivering some of the early works 16 contracts which would be the -- the depot earthworks, 17 early environmental works, et cetera. 18 Q. When you were Delivery Director, did you still have 19 programme responsibilities? 20 A. I believe I did, yes. I think programme -- at one point 21 was managed through the TSS contract, but I think 22 I oversaw that, to begin with. 23 Q. I see. But just to be clear, when you became Delivery 24 Director, you still had some responsibilities in 25 relation to the programme? 104 1 A. Yes. 2 Q. Do you recall approximately when you became Deputy 3 Project Director? 4 A. I don't, I'm sorry, no. 5 Q. Do you think that was before or after Infraco contract 6 close in May 2008? 7 A. I can't recall, I'm sorry. 8 Q. Was there a Deputy Project Director in place before you? 9 A. Barry Cross was involved. I'm not sure what his role 10 was, and in fact Barry and I actually -- I transferred 11 over into his role and he transferred over into my role 12 in EARL in 2006. 13 Q. I don't wish to be unduly harsh, but it does sound as 14 though there was real confusion over your job title role 15 and responsibilities throughout this period? 16 A. I think my responsibilities changed over that period of 17 time. 18 Q. It may help if we perhaps come back to your statement to 19 follow that through, because you say here: 20 "Initially responsible for the management, through 21 the Programme Manager, of the overall Tram programme, 22 the utility diversion contract management, through the 23 MUDFA Project Manager and the procurement of early works 24 such as ecological works ... The MUDFA scope of works 25 then moved to another reporting line ..." 105 1 So to pause there, do you recall when approximately 2 that happened? 3 A. I think that probably happened in about end of 4 2007/2008, and my recollection is that that transferred 5 initially to Steven Bell. 6 Q. Thank you. But certainly from August 2008 until perhaps 7 late 2007, you had responsibilities in relation to the 8 MUDFA works? 9 A. That would be correct, yes, and we had a project manager 10 that managed those in my team. 11 Q. Who was the project manager? 12 A. So when I first got involved in the tram project, it was 13 Alistair Slessor and then Graeme Barclay. 14 Q. Similarly in relation to -- you say: 15 "The management of the Risk Manager, Third Party 16 Agreement Manager and Reporting Manager was transferred 17 to me." 18 I apologise if I have asked you this already, but 19 when approximately did that happen? 20 A. I can't be sure of the dates, but probably around 2008. 21 Q. Between August 2006 and the end of 2007, did you have 22 any involvement in the procurement of the Infraco 23 contract? 24 A. I was involved from the perspective of -- there was 25 a team pulling all the information together and I was 106 1 working with that team of people, trying to understand 2 the programme for pulling that together, et cetera. 3 Q. Was your involvement in relation to the process or 4 procedural matters of the procurement, or did it also 5 include substantive involvement? 6 A. It -- can you repeat that question, please? 7 Q. It's not a great question, is it? In short, there's 8 a difference between being involved in the procedure of 9 something and the process of something, and being 10 involved in the actual substance and taking substantial 11 decisions involving the merits, the matters of 12 judgments; and in relation to the Infraco procurement 13 between August 2006 and 2007, what I wonder is whether 14 your role was a procedural or managerial role, or 15 whether you were also rolling up your sleeves and 16 getting involved in making decisions and judgments about 17 the Infraco evaluation and procurement? 18 A. My role was primarily procedure, procedural, and 19 process. 20 Q. Thank you. 21 Now, returning to your statement, please, and again 22 sticking at page 2, if we can scroll down a little bit, 23 under "Programme Director Tram", we see you reported to 24 the Project Director. 25 A. That's correct. 107 1 Q. So that was when you were Programme Director. When you 2 were then Delivery Director and Deputy Project Director, 3 did you also report to the Tram Project Director? 4 A. I did, yes. 5 Q. Thank you. 6 Then just we will note in passing the bottom of the 7 page, we mentioned various meetings, in sub-question 4, 8 that you attended. We could highlight that perhaps. 9 Thank you. 10 There's a reference to the Design, Procurement and 11 Delivery sub-committee, the MUDFA sub-committee, and the 12 CEC/TIE Legal Affairs Committee, and over the page, 13 please, we will see your answer. You set out your 14 involvement in each of these committees and 15 sub-committees. 16 Could I then put that to one side, please, for now, 17 and move on to the issue of the master project 18 programme. 19 Is that something you were involved with? 20 A. It was, yes. 21 Q. Particularly between August 2006 and the end of 2007, 22 did you have responsibilities in relation to the 23 production of the master project programme? 24 A. I would have at some point. As I said, I can't be 25 exactly clear when I took on direct responsibility for 108 1 programme. The Programme Manager worked at first 2 through the TSS Project, but I think I always took an 3 overview of programme. 4 Q. Was that Tom Hickman? 5 A. It was, yes. 6 Q. And then at some point he transferred from TSS to being 7 employed by tie? 8 A. He did, yes. 9 Q. If I could bring up an example of the master programme, 10 CEC01626310. I refer to this purely for illustration. 11 Can we see the title at the very top of the page in 12 the middle box: 13 "Tram Full Programme". 14 And if we can zoom back out, please. 15 Is this essentially the master project programme for 16 the tram project? 17 A. It would be, yes. 18 Q. Yes. Again, I'm just going to go to this by way of 19 illustration. I think we see it includes the various 20 contracts; is that right? The various contract 21 programmes, rather? 22 A. It would do, yes. 23 Q. So if we go for example to page 5. 24 The dark blue line towards the top sets out 25 procurement strategy, and if we then zoom back out, 109 1 please, and if we go to the first pink line, we can see 2 "Infraco", certain dates set out there. 3 If we then please go to page 10 we can see, I think, 4 without zooming in, the green line, reference to SDS 5 Design? 6 A. Yes. 7 Q. So essentially it includes the SDS programme, and then 8 if we go, please, to page 28, I think we will see 9 reference to the MUDFA works and programme at page 28. 10 We see again the green line, "MUDFA Utilities". We 11 don't have to go into the details. Then lastly, if we 12 go to page 53, please, we'll see again the green line, 13 a reference to "Infraco Construction", and then the 14 pages after that, I think, are set out there the 15 intended Infraco construction dates. 16 So in summary, am I right in my understanding that 17 the master programme is compiled with reference to the 18 programmes of the other main contracts and works? 19 A. It is, correct, yes. 20 Q. So who within tie was responsible for producing this 21 master programme? 22 A. So Tom Hickman who was the programme manager would 23 actually produce this using programmes supplied to him 24 by either contractors who were in place, or using 25 knowledge of what we thought the construction programme 110 1 might be, without having the benefit of a tendered 2 programme at that point. 3 Q. How often was it compiled and updated and issued? 4 A. It would be reviewed every month, and used for reporting 5 every month. 6 Q. Was it shared with any bodies outwith tie? 7 A. Certainly it was reported through the tram project 8 reports. I think it was probably potentially shared 9 with the Council, and Transport Scotland at times. 10 Q. Was it shared with the contractors such as SDS? 11 A. I can't recall if we shared it back or took their 12 programme and put it in the master programme. 13 Q. Now, when you became Programme Director for the tram 14 project in August 2006, can you recall whether there was 15 a master project programme in place? 16 A. I can't recall that, no. 17 Q. Might Mr Hickman be a better witness to ask these 18 questions about? 19 A. He might be because he had been involved in the tram 20 project before I came along. So he might be able to 21 answer that, yes. 22 Q. We -- with the SDS witnesses, I took them to the SDS 23 Agreement which referred to SDS requiring to provide its 24 services in accordance with the master project 25 programme, which would be provided by tie. And the 111 1 evidence from the SDS witnesses was that the master 2 programme was very rarely sent to them, and indeed one 3 of their claims document, there's a reference to SDS 4 having only been issued with one version of the master 5 programme dated February 2007. Do you have any 6 recollection of whether that is correct or not? 7 A. I don't and I don't recollect them ever asking for 8 copies either. 9 Q. We also heard evidence from the design -- the SDS 10 witnesses that rather than being able to plan the 11 provision of their services in an orderly way with 12 reference to the master project programme, they received 13 unco-ordinated requests and instructions from different 14 teams within tie, ie the design, utilities, procurement, 15 commercial and programming teams -- to reprioritise 16 their work at different times. Do you have any 17 recollection of that? 18 A. Not direct recollection of them telling us it was 19 unco-ordinated requests. 20 Q. Do you disagree with the suggestion I just put to you? 21 A. I do recollect spending quite a lot of time with SDS 22 running through their programme and looking how it 23 linked into the master programme, particularly towards 24 the Infraco close date to try and align those 25 programmes, and I remember spending hours and hours in 112 1 a room with SDS, going through those programmes. 2 Q. You see, I think the point made by the SDS witnesses, 3 were really two things. Firstly, they didn't receive 4 a master project programme from tie to enable them to 5 plan their works, and secondly, they received requests 6 in an unco-ordinated way from different teams in tie, 7 which resulted in them having to reprioritise their work 8 at different times. 9 Are you in a position to dispute that evidence? 10 A. I'm not in a position to dispute that. I don't recall 11 that, and I don't recall the master programme going back 12 to them, but perhaps Mr Hickman can answer that 13 question. 14 Q. Thank you. Moving on to another point. Three of the 15 main contracts were the SDS contract entered into in 16 September 2005, the MUDFA contract entered into in 17 October 2006, and the Infraco contract entered into in 18 May 2008. 19 Now, in each of these programmes, included within 20 the contract was a programme which was known to be out 21 of date when the contract was entered into. Do you have 22 any recollection of that? 23 A. Do you mean each individual programme was out of date at 24 each different award? 25 Q. Yes. So for the SDS contract in September 2005, it 113 1 included a programme with dates which were obviously out 2 of date at the signing of the contract. Same thing with 3 MUDFA contract. Same thing with the construction 4 contract. 5 A. So if we start with SDS, I wasn't involved at the award 6 of that contract. So I can't answer that question. 7 In terms of MUDFA, I don't recollect the programme 8 being out of date by the time the contract was awarded. 9 And for Infraco, we understood there was an alignment 10 process to go through, and that was one of the first 11 Notified Departures with the Infraco contract. 12 Q. I'll come back to the MUDFA contract shortly when we 13 come to the MUDFA chapter. 14 But just as a generality, and let's step away from 15 the tram project, from a project management standpoint, 16 I assume it was good practice to agree a realistic and 17 achievable programme before a contract was entered into? 18 A. And sometimes in a contract -- so yes, that's ideal. 19 Sometimes with a contract award the contractor has to 20 submit a programme within two or four weeks after 21 contract award. 22 Q. Again, as a generality, what problems and difficulties 23 may arise if contracts are based on programmes that are 24 known not to be correct? 25 A. Well, it depends on the provision of those contracts 114 1 with the contractor being able to ask for variations or 2 compensation events. 3 Q. Does it give rise to any difficulties in drawing up 4 a master project programme if the individual works 5 programmes are incorrect? 6 A. It does, yes. 7 Q. Could I then turn to the question of the MUDFA works, 8 please. If we could start with the MUDFA programme, we 9 can see that if we go to CAR00005833. 10 I have the benefit of a hard copy, but bear with me. 11 We can see, I think, this is headed "Schedule 8" and 12 this is in relation to the MUDFA programme. If we can 13 over the page, please, we can see this is headed 14 "PRE CONSTRUCTION PROGRAMME", and I think in short the 15 intention was there would be two parts to the MUDFA 16 works. There would be pre-construction works and then 17 construction works. Is that probably correct? 18 A. That's correct, yes. 19 Q. Over the page again. If we could blow up the very first 20 item in the top left-hand corner, just by way of 21 example. It's "set up site office and compound and 22 mobilise staff", and we can see the starting date for 23 that is, I think, the week commencing 31 July 2006, and 24 if we scroll down the page a little, if we can zoom back 25 out, we can then see at row 16, "Receive SDS Designs". 115 1 Again, that's the same week commencing 31 July. 2 If we could then zoom back out, and if we look along 3 the very top line of the dates, I think we'll see one 4 about there, exactly, commencement 4 September 2006. We 5 can just note where that is with reference to the two 6 pink lines we see. 7 If we zoom back out, I think we will see that 8 a number, perhaps the majority of the activities for the 9 pre-construction works are programmed to commence in the 10 week beginning 4 September 2006. 11 Do you see that? 12 A. I do, yes. 13 Q. Now, we know the MUDFA contract was signed on 14 4 October 2006. So that's why I say that at the time 15 the contract was signed, the programme was out. Do you 16 accept that? 17 A. Yes. 18 Q. Then if we can also please look at the programme for the 19 construction works, if we go over the next page, please. 20 We see this is then "construction programme" and over 21 the page again, please, and under -- we will have to see 22 if we can blow it up. In row 1, in the very top 23 left-hand corner, if we can blow up the title. There is 24 perfect. 25 Can we blow it up again, the dates. We can see, 116 1 "Construction activities line 1". Then we see a start 2 and a finish date. 3 So I think we can see the start date is 4 2 March 2007; finish date, it's not easy to decipher, 5 but I think in my hard copy it's easier to see that it's 6 26 May 2008. Does that seem right? 7 A. From this, yes. 8 Q. Thank you. 9 Then if we zoom back out, that was in relation to 10 parliamentary line 1. We can also see what is said in 11 relation to line 2. 12 If we go down to row 74, if it's possible to find 13 that. Here we see "construction activities line 2", and 14 if we can try, please, to blow up the start and finish 15 dates, thank you. 16 Now, I think in short the start date is 17 22 October 2007, and the finish date is 18 11 February 2008. Do you see that? 19 A. I do, yes. 20 Q. So in short, taking both the lines 1 and 2 together, 21 there was an anticipated completion date at the time of 22 signing the MUDFA contract of 26 May 2008. Does that 23 seem correct? 24 A. That seems correct from the programme here, yes. 25 Q. I think we know from other sources that at this time the 117 1 intention was to start the Infraco works in early 2009. 2 So that would have allowed approximately a seven-month 3 gap between completion of the MUDFA works and the start 4 of the Infraco works. Is that consistent with your 5 general understanding around this time? 6 A. It is, yes. 7 Q. Thank you. We can put that to one side now. 8 CHAIR OF THE INQUIRY: Mr Mackenzie, is this a -- 9 MR MACKENZIE: This would be an appropriate time, my Lord, 10 yes. 11 CHAIR OF THE INQUIRY: We will adjourn for lunch and resume 12 again at 2 o'clock. 13 A. Thank you, my Lord. 14 (1.00 pm) 15 (The short adjournment) 16 (2.00 pm) 17 CHAIR OF THE INQUIRY: You're still under oath, Ms Clark. 18 MR MACKENZIE: Thank you, my Lord. 19 Can you tell us, please, what were the main 20 difficulties and delays experienced with the MUDFA works 21 between October 2006 and around June 2007? 22 A. I think there were a number of delays. First of all, 23 the state of the design to allow the utility diversions 24 to commence. And I think once we got started, the 25 amount of utilities that were found that hadn't been 118 1 anticipated. 2 Q. Anything else? 3 A. I think those are the main ones I can recollect at the 4 moment. 5 Q. Thank you. Could you go please to your statement to 6 page 13. In the text of question 20, three paragraphs 7 down, the paragraph commencing: 8 "We understand that at a meeting between TIE and 9 AMIS on 15 March 2007 the parties agreed that, as 10 a consequence of late designs and associated data, 11 a phased transition would take place rather than the 12 distinct completion of the pre-construction services 13 phase and commencement of the Construction Services 14 phase (which was noted to "provide the opportunity to 15 complete PCS in parallel with CS as design detail and 16 definition are made available"." 17 Do you remember that matter, this question that 18 rather than completing the pre-construction services 19 phase before moving on to the construction services 20 phase, that in fact the two phases would in some way run 21 parallel? 22 A. I do, yes. 23 Q. So why had the need for that arisen? 24 A. I think the original intent was that the MUDFA 25 contractor would take all the completed design, then 119 1 develop his work packages, and at the end of that 2 process, then start work to mitigate any further delays; 3 what they were going to do was would do those things in 4 parallel to allow them to get started in some areas. 5 Q. So was the main reason why it was not possible to 6 complete the pre-construction phase -- was because the 7 utility designs weren't available? 8 A. Yes. 9 Q. Thank you. 10 The next paragraph states that: 11 "A presentation on "MUDFA Commercial Arrangements" 12 made to the Tram Project Board on 19 April 2007 noted 13 that completion of the Pre-Construction Phase was "not 14 realistic" and a different approach to the MUDFA works 15 were proposed." 16 That presumably is a reference to what's set out in 17 the preceding paragraph? 18 A. Yes, that's correct. 19 Q. Then the last paragraph states: 20 "The presentation also noted that because of the 21 inherent risks in the utility diversion works ... there 22 was a need to undertake the utilities diversion works 23 "well in advance" of the Infraco work (to avoid 24 potential abortive costs of Infraco standing time due to 25 overrunning of the utilities diversion works)." 120 1 So clearly at that time, around April 2007, that was 2 a known risk? 3 A. That's correct, yes. 4 Q. We saw, I think, in the construction programme for the 5 MUDFA contract, just before lunch, that there was 6 something like, I think, a seven-month gap between the 7 anticipated MUDFA completion of 26 May 2008 and the 8 anticipated start of the Infraco works in early 2009? 9 A. That's correct. 10 Q. So presumably we see the reference to completing MUDFA 11 well in advance of the Infraco work, presumably that 12 roughly seven-month gap was assumed to be well in 13 advance? 14 A. That's correct, yes. 15 Q. Go to another document, please. It's CEC01638353. 16 Now, this is -- we see at the very top there is an 17 email from Ray Dent to yourself, dated 29 March, and 18 Mr Dent says: 19 "I'm blind copying you with a note I sent Graeme 20 yesterday raising some concerns ..." 21 We scroll down, please, to look at Mr Dent's email 22 to Graeme Barclay of 28 March 2007. The subject is "SDS - 23 Issues". What I'm interested in is the bit in bold 24 text about halfway down. Do we see it's set out in 25 bold: 121 1 "SDS were going to do hundreds of trial pits, then 2 proposed tens of trial pits, then three, and now zero." 3 Do you have any recollection of that issue? 4 A. Only a very vague recollection, and I don't know if it's 5 from reading papers since or whether it was 6 a recollection from the time. 7 Q. So what is your understanding of that issue? 8 A. I think I also said in my statement, I couldn't 9 recollect whether SDS were responsible for doing the 10 investigatory work to establish the whereabouts of 11 utilities, or whether that was for tie to do. 12 Q. Is that something you would have been aware of at the 13 time? 14 A. Yes, but I just can't recollect now. 15 Q. You can't -- you've no recollection of the issue that is 16 set out by Mr Dent that initially SDS were going to do 17 hundreds of trial pits, and now it was zero? 18 A. I -- I see the email in front of me. I can't recollect, 19 you know, yesterday I wouldn't have known if 20 I absolutely knew that when I wrote my statement, 21 I can't remember if I knew that or if I was just 22 assuming I knew it. 23 Q. Very well. Let's go to another document, please. 24 CHAIR OF THE INQUIRY: When you got that email, if it had 25 been tie who was supposed to be doing the trial pits, 122 1 would you have gone back to Mr Dent and said: actually 2 you're mistaken, we are supposed to be doing them. 3 A. I would, my Lord, if that was my understanding at the 4 time. 5 CHAIR OF THE INQUIRY: Did you do that? 6 A. I can't recall, my Lord. 7 MR MACKENZIE: Thank you. 8 The next document, please, is CEC00348328. 9 Now, this is the spreadsheet, we can see at the top 10 left-hand corner, "Utilities - Total Final Cost 11 Reconciliation", and it's dated April 2010, I think. 12 I'm interested in the footnote 1. If we scroll down to 13 that, please. Do you see a note with 1? 14 A. Yes. 15 Q. If it's possible to enlarge that. Thank you. 16 We can see a reference to: 17 "Depot excavation costs are cost and budget 18 GBP5.438 million. The CUS Certificate element of this 19 is GBP5.311 million." 20 What's the reference to the depot excavation costs? 21 A. Sir, there were some early works to excavate the soil at 22 the depot that needed to be taken out to construct the 23 depot. And from what I recollect, this contractor 24 carried out those early works. 25 Q. Now, my understanding is that these works were carried 123 1 out by the MUDFA contractor; is that correct? 2 A. That's correct. 3 Q. So why was the MUDFA contractor undertaking what appear 4 to be Infraco works? 5 A. I can't recollect the exact reason why we appointed the 6 MUDFA contractor. 7 Q. Was it related in any way to the delays and difficulties 8 with the MUDFA works? 9 A. I can't recollect if that was a reason behind it or not, 10 I'm sorry. 11 CHAIR OF THE INQUIRY: The impression I got from your 12 statement, or someone else, that that -- the allocation 13 of the MUDFA contractor to that activity was to avoid 14 wasting resources, that there weren't enough designs 15 ready for the MUDFA contractor to do what they should 16 have been doing, and that this was a way of using the 17 available labour. Does that ring a bell with you? 18 A. That would appear to be a very good solution, but 19 I can't recollect if that was the case or not. 20 MR MACKENZIE: Did you have any involvement at the time -- 21 so either in late 2006 or the first half of 2007 -- in 22 the decision taken by tie to instruct the MUDFA 23 contractor to undertake excavation works at the depot? 24 A. So I was responsible through the MUDFA Project Manager 25 for the MUDFA contract. But I can't remember that 124 1 decision being made. 2 Q. Because it may be suggested that the MUDFA contractor 3 was instructed to undertake those works as a means of 4 avoiding or reducing claims under the MUDFA contract, 5 because tie were not in a position to instruct the MUDFA 6 contractor to undertake the MUDFA works. 7 A. And again, I can't remember at the time what happened. 8 I'm absolutely sure there might be some paperwork, but 9 I can't recollect that at this point in time, a number 10 of years later. 11 Q. Would you be able to recollect whether there was any 12 tendering process undergone for these works? 13 A. Again, I can't remember. I do know that we went through 14 a process to identify early works to take place. And 15 I can't remember if we went through a tendering process 16 for that or not. Or whether we did and this contractor 17 was part of that tendering process. So I'm sorry, 18 I can't be specific about that. 19 Q. I would like to go to another document, please, 20 CEC01623417. 21 We can see this is an email from Trudi Craggs dated 22 12 April 2007 to Matthew Crosse and Geoff Gilbert, 23 subject matter, "MUDFA worries". 24 Ms Craggs starts by saying: 25 "I worry that MUDFA and the advance works are 125 1 becoming out of control and we run the risk of being 2 exposed at the Tram Project Board. 3 I discussed this with Geoff last night but I think 4 we need to sit down to go through the issues which 5 include - 6 - the advance works at the depot and P&R - are 7 these a works order or a change to the contract? On 8 what basis has the cost been calculated? What are the 9 contract terms? Have we inadvertently misled the Tram 10 Project Board on previous occasions?" 11 Then further down, the paragraph beginning: 12 "There is no-one policing this project as far as 13 I can see - Geoff, you are probably too busy to devote 14 enough time to that but we need to be policy, testing and 15 interrogating where we are going - we need to be 16 constantly re-assessing what we are doing to ensure that 17 we maintain best value." 18 I think the board is becoming suspicious of the way 19 we report to the board - while we need to highlight the 20 good news stories, we need to be honest about where 21 there are issues. The report for this month does not do 22 that." 23 So Ms Craggs in this email appears to be setting out 24 various concerns in relation to the MUDFA works and in 25 particular the advance works at the depot. 126 1 Were you aware of any of these concerns at the time? 2 A. I don't recollect having seen this email until just now. 3 So I can't recall Ms Craggs raising that particular 4 concern with me, no. 5 Q. Did you have any concerns in relation to the matters set 6 out in the email at the time? 7 A. I can't recollect why we issued the -- that piece of 8 work to this contractor. 9 Q. When Ms Craggs says that: 10 "There is no-one policing this project as far as 11 I can see." 12 Was it your role to police the MUDFA contract at 13 this time? 14 A. As far as I recall, around that time, I had a project 15 manager in place managing the MUDFA contract. So the 16 responsibility up from that would be mine, yes. 17 Q. Similarly, at the time would it have been your role to 18 police the excavation works at the depot? 19 A. Yes. 20 Q. But you're saying you can't help us with any of these 21 matters I've asked you about? 22 A. I can't recall if I did -- if I could recall, I would be 23 able to help you, but I can't, I'm sorry. 24 Q. I would like to move on, please, to another document, 25 PBH00003588. 127 1 Now, that is a letter by Alan Dolan of 2 Parsons Brinckerhoff. It's dated 17 April 2007, and it 3 is sent to Tony Glazebrook of tie. 4 Now, Ms Clark, you are not on the distribution list 5 of this letter. So I don't suggest you saw it at the 6 time. What I would like to bring to your attention is 7 one particular matter to see if you were aware of this 8 matter at the time. 9 If we can go over the page, please, to page 2, it's 10 not great text, but I see a paragraph we can try and 11 blow up beginning: 12 "Tie has entered into legal Agreements with the SUCs 13 which failed to define a response period for the 14 consideration of designs submitted to them for approval. 15 Given the co-operative nature of these Agreements and 16 the ongoing dialogue with the SUC representatives, the 17 SDS assumption of a 20 Business Day response period to 18 our designs seemed reasonable at the time the design 19 programme was drawn up. Tie confirmed agreement with 20 the SDS assumption ... and we assume, following the 21 relevant contractual discussions with the SUCs 22 themselves. At no time did tie indicate any 23 disagreement with the design review assumptions made by 24 SDS." 25 It is the next sentence I wish to emphasise: 128 1 "At the end of the day the SUC approval period will 2 be whatever they decide and we have no option but to go 3 along with it. As this has become apparent, updates to 4 the SDS design programme have reflected this situation 5 and will continue to do so." 6 Now, would you have agreed with that assertion at 7 the time, that at the end of the day, the SUC approval 8 period will be whatever they decide? 9 A. No, I think my view now is that SDS probably could have 10 done a lot more to engage with the utility companies to 11 try and agree approval dates. 12 Q. Are you aware of tie or SDS having any legal powers to 13 force the SUCs to respond within a set timescale? 14 A. I don't know. 15 Q. Are you saying there may or may not have been such 16 powers, or are you saying you don't think there were? 17 A. I don't know if there were. And at the time the SDS 18 Design contract was agreed, I wasn't involved in 19 accepting that programme. So I don't know if there are 20 powers to -- that could be used to force utility 21 companies into giving approvals within a set timescale. 22 Q. Is that something you are likely to have known at the 23 time? 24 A. I can't recall if I knew that at the time or not. 25 Q. You were responsible for the MUDFA works between 2006 129 1 and late 2007, I think you said. One of the main causes 2 of delay was late design, and Parsons are saying one of 3 the main causes of that was that the SUCs are going to 4 respond whenever they decide. So presumably during that 5 period, you would have wanted to make sure you had 6 checked to see if tie or SDS had any legal powers to 7 force the utility companies to respond within a set 8 timescale? 9 A. I cannot recall. Well, I cannot recall seeing this 10 letter, and I cannot recall what action was taken at 11 that time. 12 Q. Move on, please, to another document. CEC01638569. 13 Now, we see this is a MUDFA Sub-Committee Report, 14 papers for a meeting, and I think we see you're on the 15 distribution list, third name down the left-hand side. 16 Presumably this was a sub-committee you in any event 17 attended; is that correct? 18 A. I'm on the distribution list, so I would have to check 19 the minutes to see if I attended. 20 Q. We can put this particular meeting to one side. As 21 a generality around this time, did you attend meetings 22 for the MUDFA Sub-Committee? 23 A. Yes. 24 Q. Thank you. If we go then please to page 7. We can see 25 this is the Construction Director's Report dated 130 1 4 April 2007. So would that be a report by 2 Graeme Barclay? 3 A. That's correct, yes. 4 Q. Go to page 9, please. Under 4, "Programme", I'll just 5 read what's said: 6 "Programme early start dates and stakeholder 7 requirements were forwarded to AMIS ... on 13 March 2007 8 to use in the preparation of a revised construction 9 schedule. 10 AMIS issued Draft Revision 04 programme on 11 23 March 2007 for comment. This programme is currently 12 under review by tie." 13 Come back out, please. 14 Under 4.3, we can see: 15 "Key elements in AMIS Draft Revision 04 Programme 16 are: 17 "The trial site at Casino Square starts on 18 2 April 2007. 19 The main MUDFA works start on 2 July 2007 ..." 20 And then thirdly: 21 "The main MUDFA works on Phase 1a from Newhaven to 22 Edinburgh Airport show completion by early January 2009. 23 This is six months later than shown on Revision 03 24 schedule." 25 So to pause here, it appears that around this time, 131 1 April 2007, a new MUDFA programme has been produced 2 which is showing completion of the MUDFA works by early 3 January 2009; is that correct? 4 A. That would be correct at the time, yes. 5 Q. And assuming it remained the case that the Infraco works 6 were due to commence in early 2009, then that six or 7 seven months' gap or buffer has been lost? 8 A. That would be correct, yes. 9 Q. So that would have been known around this time, in 10 April 2007? 11 A. Yes, if nothing was done to try and mitigate those 12 delays, yes. 13 Q. Did that cause you any concerns that the six or seven 14 months' gap or buffer had been lost? 15 A. It would have done, yes, and that's why we would look to 16 mitigate those delays, working with the contractor. 17 Q. And by doing what specifically? 18 A. So I think there was a process called RATS to try and 19 speed up the process of getting work packages in place. 20 Q. And what does RATS stand for? 21 A. I can't remember. I wish I could remember, but it was 22 an acronym used by the contractor and it was a process 23 to bring people together and then try to accelerate 24 getting work packages in place. 25 Q. I may be corrected but it may be risk and trade-off? 132 1 A. It could be. I can't remember. 2 Q. What I wasn't clear was what that meant, whether it 3 meant that works would be undertaken without design, but 4 at the client's risk. Does that ring a bell? 5 A. I think it encompassed partly that, but looking at ways 6 to mitigate overall delays. 7 Q. Can you tell us exactly what taking a RATS approach 8 means? 9 A. So it may have been -- I'm kind of trying to recollect 10 here. But it may have been -- I'm trying to think of 11 a specific example to help, but I'm afraid I can't at 12 the moment. 13 Q. Let's move on to another report, please. CEC01566088. 14 Now, this you probably won't have seen before. It's 15 a Highlight Report to the City of Edinburgh Council's 16 Internal Planning Group of 31 May 2007. If you go to 17 page 2, please, it's just really to follow the update on 18 the MUDFA programme. 19 We can see, I think, under 2.1, MUDFA, and then 20 "Programme". We can see: 21 "The latest programme from AMIS, revision 5 shows 22 the end date for phase 1a being November 2008." 23 I think we can compare the last document, the last 24 document showed an end date of January 2009. And then 25 that's been drawn back a little to November 2008. Does 133 1 that ring any bells? 2 A. That specifically doesn't ring any bells, no. 3 Q. I think we can also see under "Progress", we can see 4 that: 5 "Works at the pilot site on Ocean Drive were 6 completed between 26 April and 4 May. 7 During the pilot, additional utilities were 8 uncovered that were not identified during the original 9 survey works." 10 Presumably that in itself wouldn't be unexpected, 11 there being additional utilities uncovered that were not 12 previously known about? 13 A. Not unexpected, no. 14 Q. That's a known risk? 15 A. Yes. 16 Q. Could I then please go to another document, which is 17 CEC01650422. We can see this is an email from 18 Stewart McGarrity. If we blow up the top, please, dated 19 20 June 2007, sent to John Boyle and yourself, copied 20 into Mr Gallagher, Mr Bell and others. 21 It starts by saying: 22 "Willie wants a letter by close of play tomorrow to 23 send from him personally to John Swinney to give comfort 24 on our utilities approach and why we are confident it is 25 deliverable to cost and programme." 134 1 Pausing there, were you confident at this time that 2 the utility contract was deliverable to cost and 3 programme? 4 A. It's hard to recollect what I thought precisely at the 5 time. We were aware of the risks of unknown utilities. 6 We did know about the slippage in design, and we were 7 trying to mitigate those delays. 8 Q. Reading on: 9 "This is in response to specific concerns voiced by 10 Mr Swinney on the radio today. 11 Please can John take the lead in drafting supported 12 by Susan to review and embellish. The key messages 13 would be at least those under 1-7 below." 14 And we can read the main headings for ourselves. 15 Number 1, we can see. Then over the page to page 2, 16 please. Again, we can perhaps just read for ourselves 17 the headings under 2, 3, 4, 5, 6, 7, 8. 18 Then blow up the paragraph under 8, please: 19 "We've managed programme slippage by keeping them 20 busy elsewhere (digging a hole at Gogar) but we're now 21 running out of such ideas." 22 Is the reference to digging a hole at Gogar 23 a reference to the excavation works we discussed 24 earlier? 25 A. It would appear to be, yes. 135 1 Q. What I don't understand is the reference to "we've 2 managed programme slippage by keeping them busy 3 elsewhere ... at Gogar". In what way would that manage 4 programme slippage? 5 A. I don't believe that would manage programme slippage. 6 Q. So all it might do may be to reduce any claims by MUDFA, 7 perhaps? 8 A. Perhaps, yes. 9 Q. Were you involved in drafting or reviewing the letter 10 that was sent to Mr Swinney? 11 A. I cannot recall being involved. I probably was. 12 I can't recall the exact involvement in that. I think 13 I recall from having read the letter that went, it was 14 very, very short. 15 Q. Did you have any views on that letter that was sent? 16 A. Not at the time because I think the letter also invited 17 a meeting so that Mr Gallagher could explain in more 18 detail to Mr Swinney. 19 Q. If we can go to the letter, please, it is CEC01677601. 20 You will see this is a letter, by Mr Gallagher, to 21 John Swinney, dated 21 June 2007. The first paragraph 22 states: 23 "In your media interviews yesterday you registered 24 utilities as a major concern. I agree. For that reason 25 our Multi Utility Diversion Framework Agreement (MUDFA) 136 1 programme has the highest focus within this company. 2 Let me tell you why I am confident that we can 3 manage the MUDFA programme within the budget." 4 Just pausing there, what did you understand 5 Mr Gallagher to mean by that sentence, that "I am 6 confident that we can manage the MUDFA programme within 7 the budget"? 8 A. So I can't recall seeing this letter before it went out. 9 So I don't know what my opinion would have been at the 10 time. 11 Q. The reason I ask is that Mr McGarrity in his email had 12 said that Mr Gallagher wanted a letter to give comfort 13 on the utilities approach, and why tie were confident it 14 is deliverable to cost and programme. I can understand 15 that, a confidence in MUDFA works being deliverable to 16 cost and programme, but that's not the wording that's 17 used in Mr Gallagher's letter. He talks about being 18 confident we can manage the MUDFA programme within the 19 budget. 20 So the focus there seems to be on the budget rather 21 than the programme. Does that seem fair? 22 A. It would seem fair reading it now, yes. 23 Q. Now, let's give you a minute to read the rest of the 24 letter yourself. (Pause) 25 Over the page, please. The paragraph at the top 137 1 states: 2 "I am writing to you privately in the hope that the 3 foregoing will allay the concerns you have expressed." 4 Now, in short do you consider that that letter 5 provided a full and accurate account of the position 6 regarding the MUDFA works and contract at that time? 7 A. Yes, I think I said in my statement that no, it didn't, 8 but what Mr Gallagher had offered to do was share that 9 privately, and I think the letter says that. 10 Q. I didn't see in his letter any reference to a meeting, 11 I don't think. 12 A. Can we go back to the page before? 13 Q. Of course, yes. 14 A. Sorry, "if I gave you this information privately". So 15 I have inferred from that that he's offering to meet, 16 and maybe that's wrong. 17 Q. Which passage in the letter are you referring to? 18 A. The very last paragraph: 19 "I noticed reference to a GBP200 million final cost. 20 This is not a number recognised by myself or indeed 21 anyone within the Tram Governance structure. As 22 Chairman of the tie Board I have been under immediate 23 pressure from my staff and external Board colleagues to 24 make this clear publicly. I feel that it would be more 25 helpful and constructive to all concerned if I gave you 138 1 this information privately." 2 Q. What information do you understand Mr Gallagher is 3 offering to give privately? Is it the final cost? 4 A. So I have assumed from the original email from Stewart, 5 from the final letter that went out, and from reading 6 this, you know, a number of years later, I've assumed 7 that Mr Gallagher was going to give information on 8 programme and cost to Mr Swinney. I don't know if that 9 happened though. 10 Q. Put that issue to one side. Just looking at the letter 11 by itself, do you consider the letter provides a full 12 and accurate account of the position regarding utilities 13 at that time? 14 A. No. 15 Q. And what is missing? 16 A. It doesn't talk about programme and it doesn't talk 17 about final outturn costs. 18 Q. It doesn't mention the difficulties and delays in 19 relation to utilities design? 20 A. No. 21 Q. It doesn't mention the difficulties and delays with the 22 statutory utility companies? 23 A. No. 24 Q. It doesn't mention the fact that it had not been 25 possible to complete the pre-construction phase before 139 1 moving on to the construction phase? 2 A. No. 3 Q. There's no mention of the MUDFA contractor being 4 instructed to undertake the earthworks at the depot? 5 A. No. 6 Q. There's no mention of any issue of uncertainty over the 7 number of trial holes that would be carried out and 8 when? 9 A. No. 10 Q. And, importantly, it doesn't mention that the date for 11 the completion of the utility works had slipped by 12 approximately five months, and there was now either 13 little or no gap between the completion of MUDFA and the 14 anticipated start of Infraco? 15 A. No. 16 Q. Then please go back to your statement at page 21. 17 In question 33, if we can highlight that, please. 18 This is a reference to: 19 "AMIS's Monthly Progress Report for November 2007 20 contained an Appendix 2, Live Work Order Progress, which 21 showed that only 8 work orders had been issued and 22 noted that approximately 197 trial holes were planned or 23 were under way." 24 Did you still have responsibilities for the MUDFA 25 works at this time, or had they been passed over to 140 1 Mr Bell? 2 A. I think by this point, they may have been passed over to 3 Mr Bell. 4 Q. I think, with Mr Bell yesterday, we looked at an 5 internal re-organisation document by Mr Gallagher of 6 31 October 2007 which set out everyone's duties and role 7 from that date. Might that be the date when your 8 responsibilities changed, around that time? 9 A. If there is that document, that probably reflects the 10 picture at that time. 11 Q. I think Mr Bell was the Tram Project Director designate, 12 I think, from that time, and also set out his duties. 13 I won't ask you any more about MUDFA then after that 14 date. 15 Other than this. We have seen the difficulties and 16 delays with the MUDFA works. Was any consideration 17 given to deferring the Infraco procurement to allow the 18 MUDFA works to catch up? 19 A. I cannot recollect precise conversations. I think we 20 would have always been looking to -- looking at that as 21 an option, but looking at the downside of that as well 22 in terms of what -- you know, what other costs might 23 have been accrued while that delay to the Infraco 24 contract was in place. 25 Q. And I think you were also aware of difficulties and 141 1 delays with the design works, certainly from when you 2 had tram responsibilities in August 2006 and all the way 3 through 2007; is that correct? 4 A. That's correct, yes. 5 Q. So similarly, was any consideration given to deferring 6 the Infraco procurement to allow the design works to 7 catch up? 8 A. And again, I'm aware concerns were raised, and this was 9 proposed to the Project Director at the time, and again, 10 I think -- well, I know I was against doing that because 11 I think there are -- there are downsides as well as 12 upsides to delaying the procurement process, and part of 13 my job was to try and drive everything forward in 14 parallel. 15 Q. We've also heard evidence from some witnesses that in 16 tie, the culture was one of programme is king. And what 17 I mean by that is that the witnesses felt that there was 18 an imperative to continue with the procurement of the 19 Infraco contract despite the difficulties and delays 20 that were being experienced with the design and MUDFA 21 works. Do you have any comment on that suggestion? 22 A. I don't think it was despite. My job was Programme 23 Manager. My job was to drive things forward. I think 24 we were always assessing the risks, and at the end of 25 the day it wasn't my decision to delay any of the 142 1 Infraco procurement. 2 Q. I think in her statement, Ms Craggs said that the 3 management culture in tie was that programme was king, 4 and had to be adhered to even if it was unrealistic and 5 unachievable. Do you recognise that? 6 A. I recognise that that was her view, and I think both 7 Ms Craggs and I had very different styles in terms of 8 management. 9 Q. What do you mean by that? 10 A. Well, I think she saw me driving things forward. She 11 was much more risk averse in her approach. 12 Q. Ms Craggs also said that she felt there was a positive 13 spin put on reporting. She felt it was a bit 14 disingenuous, and she felt that senior tie management 15 did not want to hear concerns. Do you have any comments 16 on those matters? 17 A. So my job was to listen to concerns along with the rest 18 of the team and try and put things in place to mitigate 19 those. 20 Q. I think the main thrust of the evidence from witnesses 21 that programme was king is this: that there was such an 22 emphasis or weight given to driving on with the Infraco 23 procurement, that it put the procurement strategy 24 fundamentally at risk; the procurement strategy being to 25 complete design in MUDFA before Infraco, by which means 143 1 one could get a fixed price for the Infraco contract. 2 That's the fundamental point that's made. Do you have 3 any comments on that? 4 A. All I can say is my job as programme manager was to try 5 and drive things forward. We were trying to do things 6 this parallel, and also trying to mitigate risks. And 7 it was not for me to make that decision on halting any 8 one part of the project. And in projects you're always 9 trying to mitigate risks and drive things forward in 10 parallel. 11 CHAIR OF THE INQUIRY: You said there were downsides to 12 waiting for the MUDFA programme to catch up before 13 closing. Can you just tell me what those would be? 14 A. So from my recollection, we had a team of people and 15 consultants in tie who were working on that procurement, 16 and had we halted that process, we would have had a lot 17 of people who we would have stood down or we would have 18 paid them for being -- doing nothing. So there would 19 have been costs incurred in that process. 20 So it's about understanding the disbenefits of doing 21 something, and looking at the benefits of doing them, 22 and taking a balanced decision on that. 23 MR MACKENZIE: In terms of taking steps to mitigate risks, 24 whether for MUDFA or design, these mitigation steps may 25 well, I don't know, have stopped things from being even 144 1 worse, but I don't think at any time did the design 2 programme, for example, get back on track and stay on 3 track, did it? 4 A. No. 5 Q. So to that extent any mitigation steps weren't 6 effective? 7 A. I believe I said in my statement that we -- we don't 8 know how much worse it would have been had we not done 9 anything. 10 Q. In relation to MUDFA, we have just seen from the 11 documents there was an initial slippage which resulted 12 in the MUDFA construction works being reprogrammed to 13 start in July 2007. 14 Presumably the real difficulties wouldn't be known 15 until one started digging underneath the -- underneath 16 the road surface; is that correct? 17 A. That's correct, yes. 18 Q. I think those particular MUDFA diversion works were, 19 I think, programmed to take place towards the end of 20 2007 and then into 2008; is that correct? 21 A. That's correct, yes. 22 Q. So one wouldn't know in relation to those works (a) what 23 problems were going to be encountered and (b) whether 24 any mitigation steps were going to be effective until 25 some time into 2008? 145 1 A. That's probably correct, yes. 2 Q. Although to be fair, I think you said you had no MUDFA 3 responsibilities after about October-ish 2007? 4 A. That's correct, yes. 5 Q. I won't ask you any more about that. Okay. 6 Now, a separate matter. We have heard that in round 7 about September 2007, the City of Edinburgh Council had 8 decided to instruct Turner & Townsend to undertake an 9 independent review of the risks arising from the tram 10 project and the Infraco contract. 11 I think let's go to a document, CEC01567757. 12 If we can go please to page 3, we can see an email 13 from Duncan Fraser dated 24 September 2007 to yourself, 14 subject "Turner & Townsend", states: 15 "The Directors of Finance and City Development 16 Department are in agreement with the appointment of 17 Turner & Townsend to enable the attached brief to be 18 provided to the Council. This will require a duty of 19 care letter from TT to CEC. Can you provide me with the 20 contact details so that I can set up an inception 21 meeting to agree the attached brief and progress this 22 commission." 23 Then over the page, page 2, we can see an email from 24 yourself dated 27 September 2007 to Malcolm Hutchinson. 25 He was the leader of the OGC team at this time. You 146 1 say: 2 "Malcolm, CEC had been looking for a separate review 3 of risk as part of their governance process for Tram and 4 prepared the attached brief. 5 Is this something that you would be able to cover 6 in your review next week?" 7 Do you have any recollection of this matter at all? 8 A. I recall vaguely this -- I recall the review team coming 9 in. So yes. 10 Q. Do you remember having diverted the review away from 11 Turner & Townsend and towards the OGC team? 12 A. I don't remember me personally diverting. I think what 13 happened was I suggested to the Council that we had this 14 team coming in to do a review anyway, and therefore it 15 might be an opportunity for them to undertake this piece 16 of work as opposed to commissioning and paying for 17 a separate piece of work. 18 Q. Did you come to that view yourself or did you discuss it 19 with anyone else within tie beforehand? 20 A. I can't recall. 21 Q. What did you see as being the advantages to the OGC 22 undertaking the review rather than Turner & Townsend? 23 A. Well, the OGC team had been involved in a number of 24 reviews previously. So they were external and would 25 come into the project to review. So they had some 147 1 knowledge of the project anyway. 2 Turner & Townsend were involved in the project 3 through the TSS contract. But I just thought that since 4 we had the OGC team coming into to do an independent 5 review anyway, it would make sense for them to pick up 6 this piece of work at the same time. 7 Q. Why was that matter for your input, given the Directors 8 of Finance and City Development and the Council had 9 agreed to appoint Turner & Townsend to undertake the 10 review? 11 A. I think probably I became aware of it when they asked me 12 for the contact details, and I probably suggested to 13 them that we could get the OGC team while they were 14 there to undertake this review, because I would be 15 co-ordinating the OGC team coming in to do that review. 16 Q. Why didn't you just say, well, if that's what the 17 Council want to do, that's up to them? 18 A. Well, it was all about managing cost. That would have 19 been an additional cost to the project, and I suspect 20 that, you know, was in my mind, and I was thinking about 21 not duplicating effort. 22 Q. So do you think you were having an eye to keeping cost 23 down when you made that suggestion? 24 A. An eye to that, but also if there was a review going on 25 anyway, we could incorporate it within that review, and, 148 1 you know, it was as simple as that. 2 Q. Then please go to page 1 of this email -- 3 CHAIR OF THE INQUIRY: You mentioned duplicating effort. 4 Did you think that the OGC Review and the Review that 5 Edinburgh wanted Turner & Townsend to undertake were the 6 same? 7 A. I think they would have covered similar issues and asked 8 similar questions, my Lord. 9 MR MACKENZIE: Did you have any views as to whether the 10 Turner & Townsend review would take place over a longer 11 period and go into matters in a greater depth of detail? 12 A. I didn't, no. 13 Q. Just to complete this, at page 1, please, we can see an 14 internal -- middle of the page email from Rebecca Andrew 15 to Jim Grieve, where -- middle -- second paragraph, 16 Rebecca Andrew says: 17 "I have concerns that the OGC review may be at too 18 high a level and that our need to have comfort over the 19 detail of the risks will not be met." 20 Did you have any views on that matter? 21 A. I think from the last email we saw that I passed the 22 remit from the Council to Turner & Townsend on to the 23 OGC team. So my view would have been they would have 24 been asked to do the same as the Turner & Townsend 25 Review, had that been carried out. 149 1 Q. I would like to move on, please, to the question of 2 Schedule 4 of the Infraco contract. This is something 3 we have heard quite a lot about. 4 Did you have any involvement in the discussions and 5 negotiations regarding Schedule Part 4 between 6 December 2007 and contract close in May 2008? 7 A. I think I have stated previously, my role in the overall 8 contract was one of procedure and process, as opposed to 9 any substantial involvement in negotiation of those 10 terms. 11 Q. Thank you. I would like to go to an email, please. 12 CEC01245274. 13 If we can go, please, to page 3, to see the start of 14 the chain. 15 Now, we can see this is an email from yourself, 16 dated 15 April 2008, to Andy Conway, subject "Infraco 17 Exclusions". 18 You say: 19 "I know that you have seen this in another form 20 today already from Stewart. This gives you a tidied up 21 version." 22 Then go to page 2, please. The second half of the 23 page, we see Mr Conway responds on 16 April 2008 to 24 yourself, saying: 25 "Thanks Susan. I have got a couple of specific 150 1 questions ..." 2 If we go then to page 1, we will see those questions 3 with your response, I think, in red. Here we go. So 4 I think then on 16 April, towards the last third of the 5 page, we see you responded to Mr Conway. In response to 6 his questions, first bullet point, he said: 7 "The scope of the works related issues refer to the 8 status of the design as of 25 November. Our concern is 9 that if the design has changed, or at least developed, 10 since then (and say a prior approval has been granted) 11 then a change will need to be issued. Have tie 12 undertaken an exercise to determine the extent and cost 13 of changes that will be required since the design freeze 14 in November?" 15 Then your reply in red is that: 16 "BBS are contractually obliged to construct to the 17 designs that SDS produce and get consented. We have 18 been identifying significant changes as design has 19 progressed to ensure that we have made financial 20 provision - eg Burnside Road. Normal design development 21 is a BBS risk as described in Schedule 4 of the Infraco 22 contract." 23 Now, in making that reply, is that a view you had 24 come to yourself or had you sought advice from others? 25 A. I would have written that email on the advice of the 151 1 people who were negotiating those clauses of the 2 contract. 3 Q. So that represented your understanding of the views of 4 those involved at the time? 5 A. Yes. 6 Q. Just for the avoidance of doubt, can you tell us who was 7 it that was negotiating those clauses of the contract? 8 A. I recollect that Geoff Gilbert was involved, along with 9 Steven Bell and DLA would be involved in that as well. 10 Q. Just to be quite clear about that last point, between 11 January and March 2008, did you attend any of the 12 meetings which took place to discuss and negotiate 13 Schedule 4? 14 A. I don't believe so, no. 15 Q. Just sticking with this point, and there is a reason I'm 16 asking you this I'll come to shortly, Andrew Fitchie of 17 DLA has given evidence that he advised tie before 18 contract close of the risks to tie arising from Pricing 19 Assumption 1, including in particular that it did not 20 transfer design risk to the consortium. 21 Do you have any recollection of that? 22 A. I don't, no. 23 Q. From what you've said, that is not something you would 24 have been involved in? 25 A. No. But I don't recollect it being communicated to us 152 1 either. 2 Q. The reason I ask you about this is that Mr Fitchie has 3 also given evidence that he said: 4 "I discussed the effect of Pricing Assumption 1 5 directly with tie once more on or around 9 April 2008. 6 I wanted to alert tie managers again to the magnitude of 7 the change in risk allocation. I said that tie should 8 consider stopping the procurement. They understood what 9 I was saying, and I repeated that advice to a full tie 10 management meeting, if not that day, 9 April, then the 11 next tie management meeting, probably Monday, 12 11 April 2008." 13 Now, did you generally attend tie management 14 meetings around that time? 15 A. I would, yes. 16 Q. Do you have any recollection of Mr Fitchie giving such 17 advice at a management meeting around that time? 18 A. No. 19 CHAIR OF THE INQUIRY: Do you remember the question of 20 postponement being raised by anyone? 21 A. Not at that point in time, no. 22 CHAIR OF THE INQUIRY: When was it raised? 23 A. Well, we've spoken earlier about general discussions 24 about postponing for SDS design to catch up and MUDFA to 25 catch up. But those were, I think, general discussions. 153 1 I don't recollect any particular meetings or discussions 2 about those, my Lord. 3 CHAIR OF THE INQUIRY: But in April 2008 were you still 4 waiting for SDS design -- 5 A. We were. 6 CHAIR OF THE INQUIRY: -- to catch up? 7 A. We were, my Lord. 8 CHAIR OF THE INQUIRY: So could the discussions have been 9 round about that time? 10 A. I think at that time, my Lord, we had a process in place 11 for dealing with the programme slippage as one of the 12 first Notified Departures in the Infraco contract. So 13 a discussion about halting the procurement was kind of 14 contrary to that, my Lord. 15 MR MACKENZIE: I'm just sticking with the period at 16 financial close or Infraco contract close, 17 14/15 May 2008. 18 Just before contract close, did you consider it 19 likely that the design deliverables, including all 20 outstanding approvals and consents, would be delivered 21 in accordance with the diversion of the design programme 22 then in force? 23 A. Can you just say that again, please? 24 Q. Yes. So just before contract close, did you consider it 25 likely that the design deliverables, including all 154 1 outstanding approvals and consents, would be delivered 2 in accordance with the design programme then in force? 3 A. I -- can I answer this in two pieces, if that's okay? 4 Q. Please do. 5 A. I think we had a process in place up until the award of 6 the contract to deal with programme delays up until that 7 point. Whether they were from SDS or MUDFA delays. 8 After the award of contract, we expected Infraco to 9 manage that design process and be responsible for 10 delivering that to programme. 11 Q. So what's the answer? If I can perhaps rephrase my 12 question to make it shorter. 13 In short, just before contract close, did you 14 consider the design programme would be met? 15 A. I suppose I was hopeful that, it having transferred 16 across to Infraco, they would find a way of meeting 17 that. 18 Q. You were hopeful, but tie hadn't managed to find a way 19 to meet the programme before contract close? 20 A. No. 21 Q. Does it really come down to this, that the programmes 22 were based on a hope rather than an expectation it would 23 be met? 24 A. Well, in my view the risk for that had then transferred 25 to Infraco in terms of the delivery of the programme. 155 1 Q. Was that your understanding based on the fact that 2 design contract had been novated to the Infraco? 3 A. It was, yes. 4 Q. The same question with regard to the MUDFA works. Just 5 before contract close, did you consider the MUDFA 6 programme would be met? 7 A. I think that we always understood that the MUDFA 8 contract would be difficult, and that continued to be 9 difficult. So I probably was not confident that the 10 exact MUDFA programme would be met, and we had 11 allowances in the risk register for that. 12 Q. Just to press you on this, does that mean then that you 13 did not consider the MUDFA programme would be met? 14 A. Yes, because we made risk allowance for it, as we did 15 for design. 16 Q. Thank you. 17 On the question of the risk allowance, did you have 18 any responsibilities for the QRA process or the risk 19 allowance at financial close? 20 A. So the QRA was done by Mark Bourke who was my risk 21 manager. He worked on my team, but he had 22 responsibility for running the QRA and for co-ordinating 23 that whole risk management process. 24 Q. I think then by the time of financial close in May 2008, 25 I think Mark Hamill had replaced Mark Bourke; is that 156 1 correct? 2 A. Sorry, Mark Hamill, yes. 3 Q. So when Mark Hamill was in post, did he report to you? 4 A. He did at that point, yes. 5 Q. So including as at May 2008? 6 A. Yes. 7 Q. Did you have any involvement in the assessment between 8 January and May 2008 of whether the risk allowance for 9 the Infraco contract was adequate? 10 A. So there's quite a number of people who have fed into 11 that process, and primarily that would be the -- the 12 assessment would be done by the commercial team really. 13 I managed the process through management of Mark. But 14 as a team, I think we'd be taking a view on whether we 15 felt those allowances were adequate or not. 16 Q. So is your position again that in relation to assessing 17 the adequacy of the risk allowance, your role was one of 18 process rather than substance? 19 A. Yes. 20 Q. If we go, please, to an email CEC01288043. We can see 21 this is an email from Mark Hamill dated 27 May 2008 sent 22 to various people, including yourself, subject "Private - 23 QRA at Financial Close". Do you know why he's marked 24 this private? 25 A. No, I can't recall. 157 1 Q. Sensitivity confidential. Then Mr Hamill sets out 2 there: 3 "Please see attached spreadsheet which I have 4 updated following our meeting last week. As agreed, 5 Risk ID 343 ..." 6 To pause there, I think that's the programme risk: 7 "... which allows for delays has been reduced by 8 GBP1.3 million which means we now have GBP5.187 million 9 against this risk and, accordingly, the overall risk 10 allocation has reduced by GBP1.3 million to 11 GBP26.637 million. 12 One thing which we all need to be aware of is that 13 it is not possible to reduce the value of one risk in 14 the QRA without affecting all the others. This is 15 because the P80 allocation is driven by the total mean 16 sum. Therefore, in order to get round this problem, 17 I have basically 'pockled' the spreadsheet and hard- 18 entered some values. This solves the problem and helps 19 us get the final result past CEC as I doubt they will 20 notice what I have done. 21 I will revert to normal practice for future QRAs 22 however in this instance I think this is the best way to 23 do it in order to avoid unnecessary scrutiny from our 24 'colleagues' at CEC. 25 Please confirm you are content with this approach 158 1 or otherwise by close of play Friday 30 May. I will 2 take no response as acceptance." 3 Do you have any recollection of the matters raised 4 in this email? 5 A. So I -- I don't recall the event. I can make, 6 I suppose, an educated assumption as to what happened 7 here, because we had a process for drawing down risk 8 which -- and I suspect that if we looked forward in time 9 at Tram Project Board reports, there would be a risk 10 drawdown paper that drew this risk down from the risk 11 funding into the core funding for the project. 12 Q. I think what Mr Hamill is referring to is that as part 13 of the risk allowance at contract close -- put it this 14 way, rather. The risk allowance contained two elements. 15 The first and main element was a QRA figure which had 16 been arrived at by using computer software. And there 17 was then secondly in addition certain sums had been 18 added to the total risk allowance manually. 19 I think what Mr Hamill is referring to is to pockle, 20 alter, the spreadsheet to hard enter some values; 21 although that may not be apparent to anyone else looking 22 at the spreadsheet who hadn't known it had been pockled. 23 Does that seem a reasonable interpretation? 24 A. I think the use of the word is unfortunate. I think 25 what he is referring to is a mechanical alteration he 159 1 has made which he talks about, I think, rectifying later 2 on. And I believe that we would have reflected this 3 drawdown in later drawdown reports to the Tram Project 4 Board. 5 Q. What do you understand the word "pockle" to mean? 6 A. Altered. 7 Q. Do you understand there to be any element of deception 8 going on here? 9 A. I don't think that was his intent for a minute. I think 10 he was probably concerned that to get this QRA altered, 11 he had to do this quickly, and he talks about updating 12 this in the normal fashion later on. 13 I don't think there was deceit intended at all, and 14 I think it was part of a process we were going through 15 and we would draw this down at Tram Project Board in 16 future. 17 CHAIR OF THE INQUIRY: Looking at the email, it says "As 18 agreed, Risk ID 343 ... has been reduced by 1.3 million". 19 So first of all, do you remember agreeing that that 20 risk should be reduced by 1.3 million? 21 A. I don't remember, my Lord, the exact meeting. There was 22 lots of meetings going on at the time. I agree that we 23 probably did meet and agree that that risk would be 24 reduced. That would be based on our -- I think a view 25 that we could reduce that risk because we had 160 1 transferred it over to the Infraco contract. 2 CHAIR OF THE INQUIRY: Mr Hamill says that he wasn't very 3 happy about being asked to do this because it wasn't 4 normal. If you look at the spreadsheet for risk ID 343, 5 it's been reduced, the figure has been reduced to 6 GBP5.187 million, but that figure was obtained by 7 putting that figure into the calculating box, as it 8 were, of the computer, as opposed to the normal formula. 9 Now, that -- if that's what happened, is that 10 something you would approve of? 11 A. I -- I can't recall the meeting. 12 CHAIR OF THE INQUIRY: I'm not asking you to recall the 13 meeting. If that is what happened, do you approve of 14 that? 15 A. I would have approved of reducing the risk figure. If 16 we felt that it was appropriate to reduce that risk 17 figure. So ... 18 CHAIR OF THE INQUIRY: Would you have approved of putting in 19 the figure into the computer so that the computer turns 20 out that figure, as opposed to reworking the schedule? 21 A. I wouldn't have approved of fabricating an answer. And 22 I, you know, feel that in this instance we felt there 23 was sufficient risk allocation here that we could draw 24 this down. 25 So I wouldn't approve of fabricating a figure, no. 161 1 MR MACKENZIE: My Lord, I only have a few final questions, 2 but it may be a suitable time to take a break. 3 CHAIR OF THE INQUIRY: We will have a short break of -- we 4 will resume then at 3.25. 5 (3.13 pm) 6 (A short break) 7 (3.28 pm) 8 CHAIR OF THE INQUIRY: You're still under oath, Ms Clark. 9 A. Thank you, my Lord. 10 MR MACKENZIE: Thank you, my Lord. 11 If we could go back to your statement, please, 12 Ms Clark and look at page 44. 13 In question 71, that refers to an email dated 14 10 July 2008 from Stewart McGarrity, which noted that: 15 "... Transport Scotland were very unhappy about 16 TIE's four weekly report in that, in particular, it did 17 not give them a clear picture as to how TIE were 18 addressing programme slippage." 19 What was the issue there and what steps, if any, 20 were taken to resolve it? 21 A. I can't remember what the exact issues were, but I think 22 we agreed to start meeting Transport Scotland on 23 a regular basis to take them through reporting to them. 24 Q. Was there a fundamental problem around this time that 25 tie weren't able to address effectively programme 162 1 slippage? 2 A. So in July 2008 we were dependent on Infraco supplying 3 us with updated programmes that we could accept, and we 4 were working very hard with them to try and get them to 5 provide us with those updated programmes. 6 Q. Even before Infraco contract close, looking back at it 7 now, were tie at any time able to effectively address 8 programme slippage? 9 A. We were trying to mitigate programme slippage. 10 CHAIR OF THE INQUIRY: I think the question was: was tie 11 ever effectively able to address -- or were tie ever 12 able effectively to address programme slippage. 13 A. So, my Lord, I think in hindsight we were not effective 14 in addressing programme slippage. 15 MR MACKENZIE: Thank you. 16 Another document, please, if we go to TIE00248213. 17 We can see at the top that this is an email from 18 Tom Hickman, dated 16 November 2008, to yourself in 19 relation to the Transport Scotland Programme Update for 20 Period 08. 21 The email starts: 22 "The live programme and the version we send to 23 Transport Scotland periodically are so far apart now 24 that I am experiencing great difficulty in preparing 25 a version for Transport Scotland." 163 1 Then in the next paragraph: 2 "Whilst understanding why we are reporting a 2011 3 OFRS date ..." 4 Is that open for revenue service? 5 A. It is. 6 Q. "... to Transport Scotland I am very uncomfortable that 7 I am to all intents and purposes fabricating a programme 8 to appease Transport Scotland that may not stand up to 9 close scrutiny by auditors. We have to get BSC to 10 provide us with a programme to completion before the end 11 of period 09 or generate one ourselves, but either way 12 we cannot continue to run two programmes that are so 13 different." 14 So what's the issue being raised in this email? 15 A. So we were reporting to Transport Scotland the open for 16 revenue service date, which was the contractual date in 17 the contract with Infraco. 18 We were also running scenarios in the programme to 19 look at what was likely to happen, given actual progress 20 on the ground, but we were also pressing constantly 21 Infraco to come back to us with a mitigated programme 22 which they were required to provide under the contract. 23 And I think it's Clause 65 of the Infraco contract 24 details the steps we need to go through before we can 25 agree a revised open for revenue service date. 164 1 So whilst we were correctly reporting this open for 2 revenue service date to Transport Scotland, and that 3 contractually was the date, we were also running 4 scenarios to look at what the programme slippage might 5 be and continually pressing Infraco to give us 6 a mitigated programme which they -- they didn't do for 7 a long time. 8 Q. So is the problem in short that you weren't able to 9 produce an accurate programme for Transport Scotland 10 until Infraco had produced their updated programme? 11 A. Correct, and one that we could accept and agree 12 contractually. 13 Q. Did tie say that to Transport Scotland, that we can't 14 give you an updated -- sorry, we can't give you an 15 accurate programme, because we are waiting for the 16 consortium to give us their programme? 17 A. I can't remember if we were explicit in saying that to 18 Transport Scotland. I understand that this information 19 was being communicated through the Tram Project Board 20 reports. 21 Q. Would this problem have been avoided if the Infraco 22 contract contained an accurate and up-to-date programme? 23 A. It wouldn't be the contract that contained the accurate 24 programme. It was the process within the contract for 25 Infraco to update that programme on an ongoing basis. 165 1 Q. I think there was a construction programme included in 2 the Infraco contract? 3 A. Yes. 4 Q. Which was accepted as being out of date because it was 5 based on version 26, the design programme. So I simply 6 wondered if the Infraco contract at contract close had 7 included an up-to-date and accurate construction 8 programme, whether the problem set out in this email in 9 November 2008 would have been avoided? 10 A. Yes. 11 Q. Now, moving on to another issue, please, in terms of tie 12 as an organisation, we have heard evidence that 13 witnesses have said it wasn't always clear who was 14 responsible for what. Did you have any concerns in that 15 regard? 16 A. Was that tie or was that in the tram project structure? 17 Q. Within tie, some tie witnesses have said that within 18 tie it wasn't always clear who did what. 19 A. I think at the time I was clear what I was doing. And 20 clear what the people around me were doing. 21 Q. Could we look, please, at page 13 of your statement. 22 Question 19 at the top of the page. 23 We say: 24 "You were the author of TIE's Project Management 25 Plan ... dated March 2007." 166 1 The document reference is given, ADS00015. We 2 asked: 3 "Very generally, what was the purpose of that 4 document?" 5 You replied: 6 "It set out the intended project management 7 arrangements for the delivery of the tram project 8 including governance, team structure and contract 9 structure. There were changes to the team structure and 10 individual responsibilities through the life of the 11 project - as I recall, however, this document was not 12 continuously updated and accordingly these changes would 13 not necessarily have been reflected in the document." 14 What you seem to be describing is that yes, there 15 was a project management plan in March 2007, but that 16 wasn't continuously updated. Was it ever updated? 17 A. I don't believe it was updated and I think we've spoken 18 previously about my job title changing, the 19 responsibilities I had changing, and I think my 20 statement also goes into the change of personnel through 21 the life of the project as well. 22 Q. Would it have been helpful to have updated the project 23 management plan as there were important changes in the 24 structure and individual responsibilities in tie? 25 A. I think it would have been helpful in that there would 167 1 have been a reference document always there. I think 2 people within the team were clear who was doing what, 3 but yes, that would have been a helpful reference tool 4 for people to go to. 5 Q. If that document had been updated, then people in other 6 teams in tie would perhaps have been clearer on what 7 others in tie were doing and were responsible for? 8 A. Perhaps, yes. 9 Q. It's perhaps likely, isn't it? 10 A. Likely then. 11 MR MACKENZIE: Ms Clark, I appreciate there are other 12 matters in your written statement, but I'm quite content 13 to take those as read. So I have no further questions, 14 thank you. 15 A. Thank you. 16 CHAIR OF THE INQUIRY: I think Edinburgh and Mr Fairley have 17 indicated questions. 18 MR BURNET: No, we don't have any further questions. 19 MR DUNLOP QC: My Lord, again, a matter has arisen today 20 which has taken me somewhat by surprise. It's with 21 regard to the April 2008 meeting and in particular the 22 witness has not been taken to a document which might 23 assist in that regard. I would welcome five minutes to 24 put that document to the witness before Mr Fairley winds 25 up, if he has any further questions to ask. 168 1 CHAIR OF THE INQUIRY: Very well. 2 MR DUNLOP QC: I'm obliged. 3 Examination by MR DUNLOP QC 4 MR DUNLOP QC: Ms Clark, you will recall my learned friend, 5 Counsel to the Inquiry, asking you about a meeting that 6 Mr Fitchie says happened in April 2008; yes? 7 A. Yes. 8 Q. Mr Fitchie was challenged on a great deal of matters in 9 his evidence. What he wasn't challenged on was evidence 10 that he gave that such a meeting did take place. And 11 there is a document that relates to that. I want to 12 take you to that, please. 13 His evidence is that there was a contemporaneous 14 note taken, and if we could have on screen, please, 15 document DLA00006319. Would you look at the second page 16 of that, please. 17 Just for the notes, this is referenced in 18 Mr Fitchie's statement at paragraph 7.320. We don't 19 need to go to that just now. 20 If you look -- if we could expand it to fill the 21 screen, please, it does bear the date 9 April 2010, but 22 I would suggest that must be wrong. If you look down, 23 we see the meeting includes Geoff Gilbert. He'd left 24 long before April 2010; is that right? 25 A. That's correct, yes. 169 1 Q. Now, the first point I want to bring to your attention 2 is it does appear from this that you weren't in 3 attendance at that meeting; that's correct? 4 A. That appears to be correct, yes. 5 Q. So Gilbert, McGarrity, Bell, Fitchie, McEwan and Murray, 6 all meeting at CityPoint on 9 April, but you weren't 7 there. Not being there, presumably you are not in 8 a position to dispute what is there recorded? 9 A. No. 10 Q. In particular, I just want to be clear that you're not 11 in a position to dispute that it is recorded, second 12 paragraph, there was a: 13 "Break out from negotiations with Bilfinger to 14 discuss commercial proposition by Bilfinger which 15 involves tie agreeing to further price increases, 16 approximately GBP9 million, to be split between value 17 engineering ..." 18 Now, there was a discussion you are aware of, 19 I think, about an extra 9 million; is that right? 20 A. I'm aware of that. But I can't confirm whether that 21 discussion took place during this meeting or not. 22 I wasn't there. 23 Q. You will see there underlined: 24 "Can tie close on this?" 25 That appears to be a contemplation as to whether or 170 1 not close can happen. Put it another way, whether or 2 not there needs to be a postponement; is that fair? 3 A. I have no idea what is meant by that statement. 4 Q. You're not in a position to dispute the fact that at 5 that meeting, there was a query as to whether or not tie 6 could close? 7 A. I don't know what they mean by close, whether it's close 8 on that agreement or close on the Infraco contract. 9 I just don't know. 10 Q. Likewise, just looking down, you see: 11 "AF [Mr Fitchie] ... Advised that this represented 12 a major procurement risk in the light of the very slim 13 price differential at PB appointment in December. Also 14 advised that Schedule Part 4 already contained numerous 15 relief/compensation/arguable risk allocation points for 16 BB - on civils work especially. Biased for Infraco. Risk 17 of BB exploiting Schedule Part 4." 18 Are you in a position to dispute the fact that that 19 is noted as having been discussed at that meeting? 20 A. I can't dispute that. I wasn't at the meeting. 21 Q. "Recommended tie have highest authority if want to 22 exceed ... position ... and that BB were made aware 23 plainly what their approach was doing in terms of risk 24 and best value for tie." 25 Again, I presume you are not in a position to 171 1 dispute that that was discussed? 2 A. No. 3 CHAIR OF THE INQUIRY: Mr Dunlop, I wonder if there is any 4 merit in putting this to this witness. 5 MR DUNLOP QC: My Lord, it's largely because my learned 6 friend put it to the witness that Mr Fitchie was wrong 7 about this meeting and took it from her that she would 8 have been there, without putting to her this document, 9 and I'm simply, in the interests of fairness, making 10 sure that we are all appraised of exactly what is noted 11 as having happened. 12 My Lord, I'm prepared to rest there. 13 CHAIR OF THE INQUIRY: I think the point could be made that 14 she's not noted as being there. 15 MR MACKENZIE: My Lord, could I perhaps just clarify, 16 I didn't put it to the witness that Mr Fitchie was 17 wrong. I simply put it to the witness what Mr Fitchie 18 said in his statement. 19 CHAIR OF THE INQUIRY: Yes. Mr Fairley? 20 MR FAIRLEY: Thank you, my Lord. 21 Examination by MR FAIRLEY 22 MR FAIRLEY: Ms Clark, you were asked by his Lordship about 23 a piece of evidence you gave about there being 24 disadvantages to delaying procurement of the Infraco 25 contract to allow design to catch up. Do you recall 172 1 that? 2 A. I do, yes. 3 Q. That's what I want to ask you about first. 4 You had mentioned tie costs, tie internal costs as 5 being one aspect of that. 6 We've heard evidence from other witnesses that in 7 fact by this stage I think there were really only two 8 parties, two consortia that were interested in this 9 project, one called Tramlines and the other the BBS 10 consortium that ultimately was awarded the contract. 11 Was there at that stage running up to early 2008 12 a concern that one of those potential bidders might drop 13 out, leaving tie with only one party interested in the 14 contract? 15 A. I recall that was a concern, yes. 16 Q. Were there also concerns at around that same time about 17 the possibility of cost increases to the overall project 18 cost and civils work resulting from what is described, 19 I think, as a collapse in the supply chain, or perhaps 20 also changes in exchange rates because materials were 21 coming from abroad? 22 A. That's correct, yes. 23 Q. So were those also factors which featured in the 24 thinking and the imperatives to try and keep moving 25 forward towards appointment of a contractor for the 173 1 Infraco works? 2 A. I believe they would have been, and it's all about 3 balancing up those disbenefits with the benefits, yes. 4 Q. Thank you. 5 Can I ask you now to look at a different issue. Can 6 we have on the screen, please, in front of you document 7 CEC00006490. 8 Is this a document that you recognise? 9 A. I believe so, yes. 10 Q. If my understanding is correct, this is a document which 11 was provided to City of Edinburgh Council or which 12 formed the basis of a document provided to City of 13 Edinburgh Council about DRP outcomes; is that right? 14 A. That's correct, yes. 15 Q. And am I correct in saying that the summary that we see 16 here was sent to you by a solicitor at DLA called 17 John -- I may mispronounce it -- Miezitis; would that be 18 right? 19 A. That would be correct, yes. 20 Q. To what extent did the advice about the DRP outcomes 21 that you received from Mr Miezitis form the basis of the 22 information about those that you then passed on to City 23 of Edinburgh Council? 24 A. That would be the core of the information I would send 25 on to City of Edinburgh Council. 174 1 Q. Can we also look then at one more document with the same 2 reference at the front, but with, instead of 90 at the 3 end, with 89 at the end. So the document in the 4 management system immediately before this one. 5 CEC00006489. 6 I think that this is an email from you dated 7 9 November 2010 to Nick Smith and Carol Campbell, both 8 of whom were solicitors within CEC legal; do you see 9 that? 10 A. I do, yes. 11 Q. The email is short, but simply says: 12 "DRP summary. Will put this on your site." 13 Do you see that? 14 A. I do, yes. 15 Q. Was that DRP summary taken essentially from the summary 16 that you had received from Mr Miezitis at DLA? 17 A. It was, yes. 18 Q. Put that document away now. 19 The last thing I want to ask you about is in the 20 evidence of Mr Ramsay from Transport Scotland, he 21 expressed a degree of either surprise or frustration 22 that in June of 2010 tie was reporting against 23 a revision 1 programme when BSC was reporting against 24 a revision 3A. I want to ask you a little bit about 25 that. 175 1 As at June 2010, had tie and BSC agreed BSC's 2 proposed revision 3A, or was that simply a programme 3 that BSC were putting forward for agreement? 4 A. I believe it was simply a programme they were putting 5 forward for agreement under the contractual mechanism in 6 the Infraco contract. 7 Q. You mentioned Clause 65 of the Infrastructure contract. 8 I think I'm right in saying there is a passage between 9 clauses 60 and 65 of the Infraco contract that provides 10 quite a detailed mechanism for programme change? 11 A. It does, yes. 12 Q. Was it the case that agreement with BSC to programme 13 change could result in additional cost to the programme? 14 A. It could, yes. 15 Q. For that reason was it important that tie control 16 carefully any changes that there were to the programme? 17 A. It was, yes. 18 Q. So as at June 2010, if I have understood your previous 19 answer correctly, there was not an agreed revision to 20 the programme numbered 3A. That was simply BSC's 21 unilateral version of what they wanted, or what they 22 said they wanted the programme to be? 23 A. That's correct. 24 Q. Is that the explanation then of why, in June 2010, tie 25 were reporting to Transport Scotland still on 176 1 revision 1? 2 A. That's correct. 3 Q. Is this in any way related to the point that we saw 4 referred to in the Tom Hickman email that we looked at 5 a little while ago, about there being difficulty in 6 getting adequate information from BSC to inform the 7 revision of the programme? 8 A. Yes. 9 MR FAIRLEY: Right, thank you. 10 I have no further questions. 11 CHAIR OF THE INQUIRY: Thank you very much, Ms Clark. 12 You're now free to go. You're still subject to your 13 citation. You could be recalled, but I think it's 14 unlikely. 15 A. Thank you, my Lord. 16 CHAIR OF THE INQUIRY: I'm sorry for the delay in getting 17 you into the witness box. 18 (The witness withdrew) 177 1 INDEX 2 PAGE 3 MR STEVEN BELL (continued) ...........................1 4 5 Examination by MR MACKENZIE (continued) .......1 6 7 Questions by CHAIR OF THE INQUIRY ............59 8 9 Examination by MR DUNLOP QC ..................60 10 11 Examination by MR FAIRLEY ....................72 12 13 Questions by CHAIR OF THE INQUIRY ............92 14 15 MS SUSAN CLARK (sworn) ..............................95 16 17 Examination by MR MACKENZIE ..................95 18 19 Examination by MR DUNLOP QC .................169 20 21 Examination by MR FAIRLEY ...................172 22 23 MR TOM HICKMAN (sworn) .............................177 24 25 Examination by MR MACKENZIE .................178 203