1 Tuesday, 7 November 2017 7 (1.30 pm) 8 MR LAKE: The next witness is, as I said, Andrew Malkin. 9 MR ANDREW MALKIN (sworn) 10 CHAIR OF THE INQUIRY: You are going to be asked some 11 questions initially at least by Counsel to the Inquiry, 12 Mr Lake. 13 If you just listen to the question and answer it as 14 directly as possible, if you can keep your voice up, 15 speak into the microphone, and speak in a measured pace 16 because the shorthand writers have to keep up with you. 17 In other words, don't speak too quickly. 18 Mr Lake. 19 Examination by MR LAKE 20 MR LAKE: Mr Malkin, could you state your full name, please. 21 A. Andrew Malkin. 22 Q. The Inquiry has details of your address. I think you 23 were the Project Director for the Multi-Utility 24 Diversion Framework Agreement during the tram works? 25 A. That is correct, yes. 113 1 Q. And you were employed by Alfred McAlpine Infrastructure 2 Services Limited? 3 A. That is correct. 4 Q. And that company I think changed its name to Carillion 5 Utility Services Limited during the course of the works? 6 A. That's correct, yes. 7 Q. What I would like you to do is look at a document for 8 me, please. You will have it in paper form. It will 9 also be shown on the screen to your right. It's 10 TRI00000056_C. 11 Do you recognise this as the question and answer 12 document that you prepared for the purposes of the 13 Inquiry? 14 A. I do. I recognise the document, yes. 15 Q. I think on the last page of the hard copy version, it 16 should carry your signature as being the one that you 17 approved? 18 A. Yes, that's correct. 19 Q. Are you content that we accept your answers in that as 20 your evidence given for the purposes of this Inquiry? 21 A. Yes, I do. 22 Q. I do have a few further questions I would like to ask 23 you in relation to this. 24 Could you turn to page 4 of your statement. We will 25 look at the lower half of the screen. We can see 114 1 there's a sub-question here, number 7, which is asking 2 you questions about the split between Carillion 3 employees and the subcontractors. Do you see that? 4 A. I recognise that, yes. 5 Q. I should say that to save referring to Alfred McAlpine 6 or Carillion, I'll just call it through Carillion 7 throughout. It is intended to cover both, if you're 8 okay with that. 9 Could you look at the paragraph below that. You 10 note that: 11 "The slower than anticipated progress associated 12 with the late release of SDS drawings and associated 13 technical information resulted in AMIS experiencing 14 conflicts in terms of demands to resource other projects 15 and Clients. This was the subject of many senior level 16 discussions, and the compromise was to retain AMIS 17 utility staff on MUDFA, agreement to phased release of 18 AMIS MUDFA resources with AMIS Corporate approval to 19 augment the MUDFA resources using a number of smaller 20 local utility companies. At all times AMIS retained 21 site management responsibility for health and safety, 22 utility workmanship standards and completion of the 23 works." 24 Just pausing there, is what that amounted to is 25 because of the delays, you essentially released your own 115 1 employees to do other work and therefore had to 2 subcontract when things started up again? 3 A. That is correct. 4 Q. Could I ask you to pull the microphone closer to you, to 5 make sure it's picked up. 6 A. Is that okay? 7 Q. That's better, thank you. 8 Then in the next paragraph you say: 9 "I recognised very early the importance of effective 10 traffic management services in the city centre and 11 elected to substitute the AMIS TM services on the basis 12 that they were based in Manchester, and were already 13 committed to servicing the entire portfolio of AMIS 14 infrastructure works across the UK." 15 Is essentially that's once again you did away with 16 the in-house AMIS traffic management thing and 17 contracted that out once again? 18 A. The initial strategy was predominantly AMIS resources. 19 Particularly the telecoms work was a specialist area of 20 expertise, and that was awarded to at the bid stage to 21 a company called Doocey North East which had been 22 a company specialised in telecom work for Alfred 23 McAlpine. 24 So the strategy at the start was quite clear. 25 The traffic management provision was an AMIS 116 1 in-house facility, but it was obvious to me that the 2 extent of the works in the city centre, the need to make 3 sure it was meticulously managed, need to be done on 4 a far more localised basis, as opposed to a corporate 5 support function. 6 Q. Did difficulties arise from having to use external 7 resources rather than the resources internal to 8 Carillion? 9 A. The difficulties later in the programme, as the -- as 10 the MUDFA works progressed, and the works were slower 11 than anticipated, the portfolio of work within Alfred 12 McAlpine obviously drew on those resources elsewhere 13 within the Scottish region, as well as elsewhere. So 14 that caused us -- put me in a position where I had to 15 consider augmenting the resource with local supply. 16 Q. Essentially there did come a time when you couldn't get 17 the resources back and that's when you had to look out? 18 A. Yes. While the company recognised this was a high 19 profile, a very important project, other work from 20 a portfolio point of view was equally as important. So 21 I had to make a stance for getting the support to the 22 tram project. 23 Ultimately I had to make sure those resources were 24 with us, and opted to use a smaller company to augment 25 the core team of AMIS. 117 1 Q. What you are saying there, that Carillion had to look at 2 the whole of their business, and they had demands on 3 their resources for projects all over Scotland, and 4 therefore that drew away some of the people who might 5 otherwise be working on the tram? 6 A. It made it difficult to retain the resource because 7 certain skills were needed for certain works. So 8 there's -- not so much a challenge, but there's always 9 a compromise between releasing and securing people for 10 the project. 11 Q. During the course of the MUDFA works being carried out, 12 I think you had to provide plans including availability 13 of resources to tie from time to time. Do you recall 14 doing that? 15 A. That's correct, yes. 16 Q. And the concern on the part of tie was that Carillion 17 were unable, or in any event did not deliver the 18 resources that they said they were going to in terms of 19 their plans. Is that the reality? 20 A. I think later in the programme, yes. Certainly from the 21 pre-construction works through to the early part of the 22 construction works, I think we were resourced 23 adequately. 24 Towards probably the mid to latter part of 2007, 25 that became more challenging. 118 1 But the point at that time was significant amounts 2 of works we anticipated doing should have been well in 3 production, and those resources would have been occupied 4 on those various projects and work areas. 5 Q. That would have been during the earlier part? 6 A. Yes, absolutely. 7 Q. But when you got to the construction services, the 8 actual commencement of works was slower than had been 9 anticipated? 10 A. Significantly slower. At the onset of the 11 pre-construction services, most of the drawings for the 12 utility diversion should have been available. It was 13 understood clearly from the contract award stage that 14 the first batch of approved for construction drawings 15 would be made available. 16 Effectively the pre-construction services work went 17 into a number of formalities to get prepared to execute 18 the works, and at that time the full definition details 19 should have been available to support active and 20 productive production in the streets. 21 Q. I think we will come to this later, but there wasn't -- 22 you considered, and I think it was accepted, that there 23 wasn't sufficient design information to enable you to 24 carry out the work as anticipated? 25 A. At that stage, it was twofold. There was insufficient 119 1 quantity of information, and the adequacy of the 2 information was also shortfall in terms of technical 3 definition of detail. 4 Q. Is that what caused you to release the Carillion 5 resources to other Carillion projects? 6 A. It didn't cause that. It caused us to make a decision 7 on how many resources to increase to if it wasn't clear 8 how much work we could do in the prevailing months. 9 Q. Could we look, please, over the page at page 5. If we 10 could highlight the subparagraph 1 that we see on that. 11 In relation to the question: 12 "Which organisation was responsible for producing 13 the utilities design?" 14 You note in the second half that: 15 "The TIE Project Manager, MUDFA utilising Halcrow 16 Consultants ... acted as the key interface between SDS 17 and each Statutory Utility Company, which was identified 18 by AMIS as a key risk since the interface held the 19 potential to dilute SDS design responsibility to deliver 20 the pre-requisite utility definition and detail to 21 support construction." 22 Now, it might be said in response to that that it 23 was necessary that tie take control of the interface 24 between SDS, the designers and utilities in order to 25 make sure that things were done on time. What would 120 1 your comment to that be? 2 A. This was one of the longstanding difficult interfaces 3 for the MUDFA project. We didn't have, as 4 Alfred McAlpine, direct access to SDS design or the 5 designers. tie themselves acted in the pivotal role 6 between the statutory utility companies, and therefore 7 obtaining as-built information, operational data, and 8 all the prerequisite requirements that you would need 9 from operational services, and to transfer that 10 information to the designer was obviously a prerequisite 11 requirement. 12 The designer, to be able to take that and 13 consolidate the design, and then receive the AMIS or the 14 Alfred McAlpine input from the constructability point 15 of view, to then further consolidate the design to 16 produce approved for construction drawings, it was quite 17 a complex interface, and not ordinarily done that way in 18 other times of projects. 19 Q. In your experience, how would it ordinarily be done? 20 A. Ordinarily, the designer would take the lead 21 responsibility. Obviously that's a clear cut interface 22 with the statutory utility companies. And that's to 23 make sure that the code and the standards for the SUC 24 apparatus is never compromised from a safety and 25 operability point of view, and it would be very clearly 121 1 output from the design and input during that process 2 from the constructor. 3 Q. Just to be clear about the various stages there, what 4 you are saying is that the designer would liaise 5 directly with utility companies in the first place? 6 A. Correct. Because there's twofold. I think from 7 recollection, and this is purely recollection, one of 8 the concerns from tie at that time was about the control 9 of cost, because there was a worry about the utility 10 diversions in the streets being ie subject to 11 betterment. So whilst there's a purely diversion to be 12 done, it could result in old apparatus being extended in 13 terms of linear length back to a known or operational 14 centre. 15 So there were -- obviously cost was critical, and 16 there was a huge cost conscious approach to it as 17 opposed to a technical definition and integration point 18 of view. 19 Q. So if -- the concern would be is that if there was just 20 a direct interface between the designers on the one hand 21 and the utilities on the other, there would be to an 22 extent a loss of cost control over the output, design 23 output? 24 A. There would have been a lot of cost control, yes. 25 Q. A lot -- did you say loss? 122 1 A. A lot of cost control or lot of conscientious cost 2 control in the relationship between tie and the SUCs. 3 And bear in mind there was a number of SUCs in terms of 4 the gas, the water and so forth, and all the telecom 5 providers. 6 Q. How would cost control be implemented if the contact was 7 directly between the designer and the utility? 8 A. I think that was being managed by tie. It was not 9 really an AMIS -- our input and responsibility. It was 10 purely to do a constructability review and look at the 11 possibility of multi-utility value engineering to make 12 sure we could optimise the number of diversions in one 13 given hole. 14 Q. That's the interface between the designer on the one 15 hand and utility on the other. What about the interface 16 between the designer and the contractor? Are you saying 17 that's normally direct? 18 A. Sorry -- 19 Q. Just to understand what you're saying, the interface 20 between the designer and the contractor, is that 21 normally they have direct contact, or is it common for 22 it to go through tie as it did here? 23 A. I think ordinarily, most sort of major projects would 24 focus on minimum interfaces. So they would put the sole 25 responsibility with the designer, to make sure that the 123 1 output was the prerequisite requirement, and input from 2 the constructor. 3 Q. The designer here did have the requirement to produce 4 the designs and a requirement to produce them to an 5 appropriate quality standard, but it was left to tie to 6 do the work, essentially chasing the designers where it 7 was felt that had to be implemented. Is that 8 particularly unusual? 9 A. I think that is unusual. I think one of the concerns 10 was the length of time it took to turn around these 11 designs. So from SDS release of information for 12 comment, the input from the statutory utilities 13 companies varied. Some were fairly swift and some were 14 not quite so swift. 15 Q. So the concern about the time being taken, was that what 16 led to tie taking a direct hand in pursuing matters? 17 A. I think tie's involvement was predominantly the 18 contractual interface and the making sure that cost was 19 controlled. That was their predominant interest. But 20 equally from a programme and progress point of view, tie 21 were obviously trying to be expeditious in moving the 22 approvals process through the SUC. 23 Q. Just understanding the idea, you say that given the 24 minimum number of interfaces, so the contractor -- this 25 is other projects -- the contractor might have a direct 124 1 interface with a designer. In that situation would it 2 be common for the contractor to engage the designer, to 3 be the person who contracted for the services? 4 A. I think on projects which I'm familiar with, the 5 designer usually would have one single interface with 6 the utility companies. So they'll solicit information 7 that is appropriate, it's as built and accurate, and 8 there's a test and a check around that information 9 transfer between the SUC and the designer. 10 Q. That is looking at the situation between the designer 11 and the various utility companies. I'm just looking at 12 the arrangements between the designer and the utility 13 contractor at the moment. 14 I'm just wondering if the interface is to be between 15 the contractor and the designer direct, does that mean 16 the contract is directly between them, that essentially 17 that the contractor is appointed to carry out the works 18 and the contractor engages the designer to design the 19 works? 20 A. I think in this situation -- forgive me. Are you 21 talking about ordinarily or -- 22 Q. Yes, in other situations? 23 A. Okay. I think you can't have that sole responsibility 24 in two places. So the designer would ordinarily take on 25 that responsibility, and in the contract terms between 125 1 two parties, there would be a clear remit for 2 constructability, buildability input to the design, such 3 that you end up with a consolidated design ready for 4 constructing. 5 Q. And that buildability input, is that input that would 6 come from the appointed contractor? 7 A. Yes. 8 Q. If you go to page 6 of your question and answer, please. 9 If we just go to the upper half of the page, you will 10 see four lines down, a passage which says: 11 "Furthermore, and from AMIS MUDFA perspective there 12 were two areas in particular that were not effectively 13 managed from onset, which were again highlighted in the 14 early AMIS MUDFA monthly reports. Firstly, the volume 15 and availability of approved utility drawings which 16 required SUC approvals, and secondly the intricacy and 17 inter-dependency of city centre traffic management and 18 the consequential impact on the wider area road networks 19 that was not adequately addressed with the various city 20 stakeholders." 21 I would like to look at these two matters identified 22 by you. 23 Firstly, you refer to the volume and availability of 24 approved utility drawings requiring SUC approval. 25 What do you mean when you say these are approved 126 1 utility drawings which require SUC approval? Two stages 2 of approval there. 3 A. So Alfred McAlpine expected to receive not necessarily 4 in totality, but a full suite of drawings that were 5 issued for construction late in 2006. It was 6 recognised, I think at the contract award stage, 7 although I was not party to that, that certain designs 8 may be following on. But there will be substantial 9 drawings for us to go through, and to comprehend the 10 exact details of the work to be performed. 11 Now, the understanding of that at that stage in 12 receiving those drawings, that those drawings had gone 13 through their said due approval process, be it by SDS, 14 their own checks and consultants being employed to 15 support them, and obviously approved with the statutory 16 utilities company for the particular utility design, and 17 interface with the existing services. 18 The point I would like to add to that on the traffic 19 management side is unless we really understood that 20 volume of work and complexity, it was not so much an 21 exposure, but it was a challenge for Alfred McAlpine to 22 do the traffic management definition, because it comes 23 down at that stage to road junctions and what can be 24 closed in terms of single lane or so forth. 25 So without that level of definition, it was very 127 1 difficult to second-guess the impact on the traffic or 2 certainly the localised junction traffic management 3 requirements. 4 Q. The decision about the extent to which lanes would have 5 to be closed, who had to make that decision? 6 A. Essentially we, as Alfred McAlpine, would have to 7 create -- be party to the creation of a work package. 8 There was a work order. That involved multiple 9 stakeholder consultation, but the purpose of that design 10 and design scope and definition, and the buildability 11 input, was to work out and calculate the exact extreme 12 of a particular work area, and that then informed the 13 requirements for the immediate and adjacent traffic 14 management, be it single lane closure or whatever. 15 Q. I want to just pause here to ask you a few questions 16 about identification of utilities under the ground. 17 We've heard that this can be done either by surveys 18 including ground penetrating radar and trial holes. 19 Were there more problems with finding unexpected 20 utilities in this project than you've encountered 21 elsewhere? 22 A. I think a twofold response. 23 Generally, the congested nature of the utilities was 24 higher than we envisaged. As a part of the process to 25 bid the work and certainly an operational risk 128 1 awareness, we always anticipated them being quite 2 congested. 3 It wasn't until you actually expose utilities that 4 you found two things. One, the as laid, as buried 5 congestion, and also the condition of the asset was 6 a concern as well in some -- in quite a few of the 7 situations. 8 Q. Poor quality of the existing pipes? 9 A. And some of the assets were quite old. You know, I can 10 recollect gas cast-iron pipes with gas service, you 11 know, they were very, very old assets. And obviously 12 have not been looked at physically for many, many years. 13 Q. In essence, Carillion were to be paid -- the measure of 14 what they were to be paid depended upon the new 15 utilities that they had to install, the length of the 16 new utility they had to install? 17 A. Yes. 18 Q. So what relevance was the poor condition of the existing 19 utility? 20 A. Well, one of the challenges was to do the immediate 21 diversion to serve the tram foundation. If the 22 particular service, pipe, gas pipe, water pipe, was 23 corroded, we could not just tie a new pipe under the 24 tram track exact into the old infrastructure. 25 Modern day standards and very old ovality of pipe 129 1 challenges and corrosion on pipes would not be able to 2 make it serviceable in terms of connection. So that 3 inevitably took us back to what we call an isolation 4 point or to a main trunk pipe so it extended the works. 5 Q. That is something that was -- of which Carillion had 6 experience and expertise, having been involved in 7 utility diversions for some time? 8 A. That's correct, and whilst the cost recovery or the 9 recompense for the work was one issue, it's the impact 10 on the timescale for that particular diversion area, and 11 therefore obviously a combination of those leading to 12 programme delays overall. 13 Q. Where the timescale for completing programmes was 14 extended because of unforeseen utilities, that is 15 something for which it was known that Carillion would be 16 able to claim an extension of time? 17 A. Correct. 18 Q. Can we go to page 7 of your statement, please. If we 19 could look at the upper half of the page, there's 20 a paragraph beginning "In terms of". Look at the whole 21 of the paragraph: 22 "In terms of physical track line this changed on 23 several occasions and consequently impacted on the MUDFA 24 works sequence and opportunity to commence the physical 25 works. The initial trial hole and proving the work 130 1 order planning process planned at Ocean Terminal was 2 initially delayed due to the parliamentary election, and 3 then further delayed as a result of the track line 4 position being subject to several changes, and the fact 5 that TIE Project Manager, MUDFA had not secured legal 6 consent at the appropriate time (Malcolm Butchard, 7 Forth Ports Estate Manager). In the end, the trial hole 8 was not carried out." 9 Is that the trial hole at Casino Square that was 10 proposed? 11 A. No. Initially we agreed an approach was to approve the 12 work ordering process, and the work ordering process 13 involved multiple inputs and a consolidation of 14 understanding for approval to sign off, by which the 15 works physically would be measured and recorded. 16 There was a number of prerequisites that had to be 17 input to the work order, and the work order once signed 18 off was used as the basis to track the change of works 19 during the course of the diversion. So the cost, given 20 any change in the configuration of the diversion, could 21 be tracked and recorded and accurately reported. That 22 was the purpose of the work order. 23 To prove the integrity of the work order process, we 24 decided with Alistair Slessor in the early days that we 25 would take a trial hole to prove the whole of that 131 1 process, because fundamentally it depended on lots of 2 inputs, consolidation agreement and output and 3 recording. So a hole was identified. We were going to 4 do that work as a trial hole purely as proof of concept 5 for the contractual arrangement. 6 The Casino Square that you referred to is correct, 7 that was the follow on from that because the original 8 trial hole we wanted to do did not actually happen, and 9 the first of the work started down at Casino Square, 10 along the Ocean Terminal front. 11 Q. The excavation at Casino Square was described as a trial 12 site and was seen as such? 13 A. Yes, and I think at that stage, from recollection, that 14 was also to make sure that the particular works or the 15 apparatus in that area was positively identified and the 16 diversion was to be fully understood. 17 Q. But that work on the Casino Square had been carried out 18 in May 2007. Therefore shortly after the Scottish 19 general election. It was an example of once that was 20 out of the way, getting on with the sort of trial 21 excavation as had been envisaged; is that not fair to 22 say? 23 A. I think that was the early part of the construction 24 works commencing on that Ocean Terminal front, yes. 25 Q. But it was described as a trial hole. It was seen as 132 1 a trial excavation? 2 A. I think I would use that term myself there. There's 3 slight ambiguity in the trial holes. There's trial 4 holes for supporting the MUDFA works. There's also 5 trial holes done by others to investigate the extent of 6 the works or to inform the design. So we used the word 7 quite commonly, but they tend to have different meanings 8 in terms of context for purpose. 9 Q. You can have excavations made for the purposes of 10 discovering what's there to inform the design. 11 A. Correct. 12 Q. Then this was more an excavation that was carried out to 13 actually carry out the MUDFA works with a view of seeing 14 how things went? 15 A. Yes. 16 Q. If we could look, please, at a production CEC01664355, 17 please. 18 If we can just enlarge this. Can we scroll right 19 down. We can see this is a letter from you. If we go 20 back to the top, it's addressed to Graeme Barclay at 21 tie, dated 21 May 2007. Do you see that? 22 A. Yes, I do. 23 Q. It provides a copy of the AMIS MUDFA project progress 24 report for May 2007. I take it these are things you 25 provided essentially monthly? 133 1 A. And from the very onset, when I joined the project, 2 I produced all monthly reports for a number of months, 3 yes. 4 Q. Could we go to page 5, please, of this. And look at the 5 upper half. 6 I think we're looking at the content of the report 7 itself, and under the heading "Executive Summary", it 8 says: 9 "Alfred McAlpine Infrastructure Services has 10 concluded the MUDFA Construction Services works at 11 Casino Square (ie Trial Site) within the reporting 12 period. The main focus since has been on the follow on 13 works constituting the RAT 1A/1 Revision 1/2 proposals 14 created and submitted by AMIS MUDFA." 15 Is that not confirmation what had taken place is 16 down in this area, trial holes were carried out at about 17 this period, not enquiry, but tests of the actual MUDFA 18 works themselves were carried out in this -- on this 19 timescale? 20 A. This was the trial site. This was -- this was an area 21 of work where a number of services were being uncovered 22 to ascertain their direction and, if I recollect 23 correctly, so it's effectively from our point of view 24 was a trial site as opposed to the full diversion work 25 itself. 134 1 Q. If you go back to your statement, please, in fact, to 2 page 7, and look at the lower half of the page this 3 time, you see there's a paragraph there, now towards the 4 upper part of the screen, the second paragraph, roughly 5 from the middle: 6 "In short, the civil engineering designers view the 7 utilities as single line diagrams, which were produced 8 as a result of conducting overnight Asperio surveys, as 9 opposed to a carrying out detailed assessments of the 10 in-service and as built drawings, or even carrying out 11 strip digging in critical areas." 12 We've heard about ground penetrating radar surveys 13 carried out by a company called Adien. You're referring 14 here to Asperio surveys. Are they something carried out 15 in addition? 16 A. These were the same. I forget the exact names, but 17 I think Asperian were the providers of the Asperio 18 technology, which was the ground penetrating radar. 19 Q. Was this a separate tier of surveys that had been 20 carried out? 21 A. These -- these had been commissioned by SDS. A lot of 22 these surveys were done during the twilight hours, or 23 certainly overnight, with permission from tie, and the 24 results of that was to -- the survey results, the 25 drain -- the ground penetrating radar was used to 135 1 confirm the utility information provided, or that had 2 been consolidated by SDS designers. So it was an 3 additive of information to the design process. 4 Q. You refer also in that section I read to detailed 5 assessments of the in-service as-built drawings. Are we 6 talking there about the records held by the utilities as 7 to where their assets were? 8 A. That is correct, yes. 9 Q. Were they reliable? 10 A. They varied significantly. Now, whilst we weren't 11 necessarily involved in the review of those drawings, we 12 did see some of them. Our particular interest was 13 sustainability of supply. As you will appreciate, the 14 diversion works often required us to isolate certain 15 services, and a part of the work ordering process was 16 for us to clearly understand the criticality of supply 17 to end users, maybe a hospital, a school or whatever. 18 So with that in mind, we had to be very, very clear 19 and concise about the diversion works, what its 20 in-service state was, its critical dependency on end 21 user, such that we isolated correctly or we had to do 22 additional works, to do bypass work, to make sure we 23 could sustain the service whilst we did the diversion 24 works. 25 Q. If I understand you correctly, that's saying that the 136 1 records were useful in that context for identifying what 2 the consequence would be of interrupting any service, 3 and what steps had to be taken to ensure that 4 businesses, households, hospitals, didn't suffer a loss 5 of a particular activity? 6 A. Absolutely, and the one prerequisite that we expected 7 and we always searched for was the isolation information 8 of those services from the unformed design, because 9 often there was an understanding that it was just the 10 diversion work particularly, but from a McAlpine point 11 of view, we had to look at all the SUC serviceability. 12 That's the statutory utilities services, because we've 13 still got customers in service and expecting dependency 14 on their security of supply. 15 Q. So you would need to be sure that -- what new works 16 would be put in place to ensure that there was no 17 interruption to services? 18 A. That was always going to be our intent, and if it was 19 the case where we could not, for whatever reason, then 20 we have to have that stakeholder discussion and 21 engagement, and often we had to then supply temporary 22 arrangements, maybe bottled water, if we had to isolate 23 the water for 24 hours or whatever. 24 Q. Now, that's one reason for wanting to see the utilities 25 to understand essentially what premises are served by 137 1 a particular utility. The other question is whether or 2 not the utility -- whether or not the drawings indicate 3 precisely where the utility is, its depth and its 4 location within a carriageway. 5 Now, are they reliable for those purposes? 6 A. The Asperio surveys -- 7 Q. I was talking about the company's records first of all? 8 A. No, it is fair to say where the works had been more 9 recent, it was reasonably accurate, but one of the 10 ongoing concerns for us was the accuracy of records. 11 Because it is not just in plain view, ie the 12 identification of utility, but obviously the burial 13 depth and subsequent roadworks had been done on top of 14 those utilities. That information was seldom very, very 15 accurate. 16 Q. When you talk about supplementing that here, one of the 17 things you've mentioned is the Asperio or ground 18 penetrating radar surveys. Were they of use? 19 A. I think the exercise was done. It provided information 20 to support the design, but it comes down to the 21 technical definition and detail, and that's something 22 that cannot be done from a ground penetrating radar 23 approach. 24 Q. Does the ground penetrating radar provide an accurate 25 picture of what is under the ground before the ground is 138 1 opened? 2 A. I think for the primary services, the larger ones, yes, 3 I think it's fairly accurate because they are through 4 radar penetration, they're fairly -- the definition is 5 there. But for the smaller utilities and spur pipes, 6 that tended not to be the case. You get a blur on the 7 drawing or the radar as opposed to a definition and 8 detail. 9 Q. You refer there even to the possibility of carrying out 10 strip digging in critical areas. Was that undertaken in 11 relation to the tram project? 12 A. There was a few we did for -- for several reasons. But 13 for different reasons, which I'll allude to in a moment. 14 But there was in -- for certain areas of criticality, 15 where utilities were compact, it was very, very 16 important to understand the sequence and dependency of 17 these beneath the ground. Then it was critical, 18 I think, that we should have done far more strip 19 digging. 20 There are a number of what I call hotspots, 21 I referred to many, many years ago, along the tram 22 route, where we really need to understand the 23 criticality of those services, and therefore we did do 24 some strip digging to understand location and the 25 physical situation around those utilities. 139 1 Q. How did you identify in which areas strip digging should 2 be done? 3 A. I think as we -- in the early parts of pre-construction 4 services, obviously we were fairly new at the first few 5 weeks and months, we get into the position where we 6 start to understand the tram route a bit -- far better. 7 What became very obvious to us is, as we started 8 looking at junctions, things like Haymarket junction, 9 the actual nodes of the city obviously carry a huge 10 amount of utilities. 11 So part of our planning team inside of McAlpines, 12 which was led by myself and Roddy Aves, we always look 13 at these critical areas. Two reasons. One, the volume 14 of the utility, which is very, very important from 15 a work scope and programme point of view, but the 16 question we always use to ask ourselves is: what is the 17 criticality and dependency of that to sustain a business 18 in the city? 19 When we go near to the banks, and Gogarbank was 20 a hotspot, for example, the Royal Bank at 21 St Andrew Square, these, when we met the banks, were 22 telling us that half of the payroll system in Scotland 23 is run through these fibre optics. From our point of 24 view, it is no longer a diversion work to be done; it is 25 a critical dependent supply to a business and sustaining 140 1 business for Scotland. 2 So from our point of view, that became a very, very 3 critical hotspot issue, and there were several of these 4 along the route. 5 Q. Would that mean that was an area in which the -- there 6 would be trial excavations or strip digging done to 7 determine precisely what was there before the works 8 commenced? 9 A. Absolutely. I had a huge passion to make sure that from 10 a reputational point of view, the damage sustainable 11 business, these were absolutely hotspot and topic 12 number ones as the MUDFA team. 13 Q. You said, as I recall, you said that you felt that we 14 should have done more strip digging. When you say "we", 15 who is that you are referring to? Carillion? 16 A. I think it comes back to the design interface. During 17 the early part of MUDFA, even before MUDFA, some of the 18 design should have been better informed. Because of 19 this criticality to sustainable business. 20 I can think of -- I can recollect three or four 21 situations where it was not just purely a diversion that 22 was under challenge. Often a diversion would need to 23 have some temporary works design, and some additional 24 engineering done, to create a temporary arrangement 25 whilst we did the diversion works. So it was more than 141 1 just a drawing. It needed to be a design solution with 2 technical support to the construction movement. 3 Q. Just to be -- just relating that back to at what time in 4 your view should the additional strip digging have been 5 done and by whom would it have been done at that time? 6 A. I think even before the pre-construction services, as 7 that design was being developed, I think there was 8 a sufficient knowledge to understand the route, the 9 density and compaction of these utilities, and some 10 prelim work should have been done in those early days. 11 Q. You are saying it was even before the pre-construction 12 services? 13 A. Yes. 14 Q. Pre-construction services were the initial services 15 provided by Carillion? 16 A. Yes. 17 Q. So this would have been at an even earlier stage. So it 18 would have had to have been by other parties? 19 A. I think ideally, yes, and even in the early stages, we 20 could have done some in the pre-construction services. 21 Q. Obviously there's a downside to carrying out slit 22 trenches in the sense that you need to put traffic 23 diversions in place, and there will be disruption that 24 flows from it. Presumably, you accept the balance has 25 to be struck between the desire for more information on 142 1 the one hand, and the desire to avoid traffic chaos on 2 the other? 3 How do you balance those two? How do you determine 4 how much to do and where to do it? 5 A. I think this was a constant challenge with the traffic, 6 and I'm very sympathetic to the disruption within the 7 city, but when you talk about some of these critical 8 services, I think it is fair to say a little traffic 9 disruption is to be tolerated, but the criticality of 10 some of these services had to be understood in full 11 definition and detail. So it was very, very important 12 that the balance was in the favour of understanding that 13 definition. 14 Q. So how much strip digging or strip trenches, exploratory 15 digging was carried out by Carillion after they were 16 appointed? 17 A. On the several areas we did investigation work. 18 Certainly down at Gogarburn site hill, we had some 132KV 19 interface to deal with. So we had to strip dig down at 20 the site hill substation, and this was obviously to -- 21 with a 132KV cable, impact would be significant. 22 Probably fatality. 23 So we strip digged there to make sure we had 24 positive ID at location and understanding of those 25 utilities we diverted. 143 1 And certainly in Leith Walk lower regions, there was 2 a number of confusion around the utility works there. 3 So we did some strip digging there too. 4 So it was not extensive, but it was appropriate and 5 it was really to explore and to make sure we understood 6 or comprehended the challenge better. 7 Q. So that was in very particular locations, either because 8 of issues of safety with the high voltage electricity 9 cables, or down in Leith where there was known to be 10 particular congestion of utility services? 11 A. And Leith was a particular interest for us as well 12 because of the ground conditions. We found the -- 13 looking at the road profile from the traffic, using it 14 frequently in the city, and looking at the crazed -- 15 I recollect going down with the team one day to look at 16 the road surface which had actually spalled through 17 loading on the tarmac. So that led us to believe that 18 perhaps its substrate or the ground beneath was perhaps 19 not as strong as it ought to be. 20 The Council and the hawks back(?) made it very, very 21 clear to us that the road reinstatement was critical, 22 and obviously those areas were of concern to us, and we 23 were very worried then about the extent of 24 reinstatement, which ultimately finished with 25 a concrete -- a foam concrete solution, but the ground 144 1 conditions were quite sandy and silty. They were not 2 really hard ground or compacted. 3 Q. I didn't quite catch what you said at the start. You 4 said in terms of what made it very, very clear to us, 5 you said the Council and the -- 6 A. The hawks back. The hawks back is the specification for 7 the roads and highways. This is a standard for 8 reinstatement. And it's a prerequisite -- it's 9 a specification requirements for reinstating the road 10 from -- from utility level right up to the road surface 11 and the wearing level, at the wearing layer on the 12 tarmac. 13 Q. If you just look at the foot of page 7, which we still 14 have on screen, you can see the last two lines and read 15 over to the next page: 16 "AMIS MUDFA were significantly curtailed for a long 17 period of time by the non-availability of utility 18 drawings from SDS, which virtually eradicated the 19 benefits of carrying out the pre-construction services 20 phase. Eventually when the first batch of drawings from 21 released to AMIS they were at "Preliminary" status and 22 did not provide the level of design definition and 23 details required to support work order planning and 24 material purchasing." 25 What sort of further delay was there before you felt 145 1 you had drawings from the designers that were of an 2 adequate standard? 3 A. In several -- when I first joined the project we had 4 monthly meetings. In fact, we had weekly catch-ups, as 5 you would ordinarily do, building relationship and 6 establishing the protocols for the project. 7 I have to say, it was extremely disappointing at the 8 start that we didn't have those drawings, because I was 9 certainly led from my senior management team in AMIS 10 that we would have these drawings available from -- as 11 a batch of drawings. 12 The first batch of drawings didn't probably appear 13 until probably three or four months after I first 14 started. And they were presented to me in a box at the 15 progress meeting, and they were just A3 template 16 drawings of the road. 17 The whole definition detail was a series of 18 multi-coloured lines across the road template. So this 19 was the prelim drawings because I think the designers 20 were under pressure, and I understand that, to release 21 the drawings, but they never fulfilled what we 22 anticipated as being a drawing that we could build to. 23 And that was significant even in the very early months 24 of us starting way back in 2006. 25 Q. If I could ask you to look at page 10, something I just 146 1 want to check with you. That's the same thing you are 2 referring to. 3 If you could look at the foot of page 10, and in 4 response to question 5 there, you say: 5 "The work completed during the pre-construction 6 phase proved beneficial in many ways, but the 7 requirements relating to the utility specific design 8 work was not conclusive, and was not completed with 9 a definitive ending to the PCS phase. In this regard 10 AMIS believed that the rates and prices structure 11 offered in the bid phase had been compromised." 12 Is that the same thing that you're talking about? 13 A. Yes, because two things were happening at this stage, 14 which was of major concern for myself. It wasn't just 15 the lack of drawings, but we'd already embarked upon 16 a strategy and an operational plan development to 17 execute the works. 18 And the drawings that were forthcoming didn't match 19 the plan that we'd been working with tie to conclude 20 upon. So it was two things, the lack of and the 21 sequence, then compromised where we were. 22 Q. In terms of when design was to be delivered to you, it 23 wasn't one of the things that would be provided 24 necessarily in its entirety during the pre-contractual 25 services phase. 147 1 A. Our understanding was that most of the drawings would be 2 available at the tail end. In fact, from recollection, 3 December 2006 was the last of the detailed drawings. 4 It is fair to say, and to be reasonable for all 5 project type work, that you don't expect to get an 6 absolute full set of drawings. So it didn't necessarily 7 compromise the pre-construction services, but there is 8 a big difference between receiving, say, 90 per cent of 9 them and none of them. 10 And they were released in phases, but the sequence 11 then challenged us because we had to start rethinking 12 around the operational plan, and the reason I was 13 concerned about that was not so much the drawings at 14 that stage. It was the impact on the city, the 15 communication, it's the protocols to engage the 16 stakeholders, and the community centres and retail 17 centres, which I spent a huge amount of time getting 18 involved to make sure we understood what was being done 19 in the streets adjacent to properties and to business 20 holders. 21 Q. If I could ask you to look at the contract, please, the 22 MUDFA contract. It's reference CAR00000300. It's just 23 the title page of the contract between tie on the one 24 hand and Alfred McAlpine Infrastructure Services 25 Limited, as it then was, on the other. It's 148 1 a Multi-Utilities Diversion Framework Agreement. 2 Are you familiar with the contract? 3 A. A long time since I have seen it, yes, but yes, 4 I recognise it. 5 Q. Can we look at page 146 of this, please. This is 6 Schedule 1 to the Agreement, which describes the 7 services which are to be provided by MUDFA -- by 8 Alfred McAlpine to tie. Are you familiar with that? 9 A. Yes, I recognise it. 10 Q. We can see there's a sub-heading towards the lower part 11 of the screen there, Pre-Construction Services, which is 12 clause 2. 13 If we look over the page, we can see an element of 14 this pre-construction services is the work breakdown 15 structure. You can see that. If you enlarge the upper 16 half of the screen, please. 17 What it says there is: 18 "The MUDFA Contractor shall develop the Work 19 Breakdown Structure into a comprehensive and detailed 20 document suitable for executing and managing the dates 21 required for the release of design information, 22 mobilisation, construction works, testing and 23 commissioning and completion in respect of the MUDFA 24 Works." 25 That seems to suppose that it is during this 149 1 pre-contract stage that the work breakdown structure 2 will be produced by Carillion, and that at that stage 3 will say when the design should be released; is that 4 a fair understanding? 5 A. What we did at that stage, we broke the whole route into 6 subsections, subsections into junctions, and we derived 7 the WBS and Schedule in accordance with the outline 8 there. 9 And we went through a meticulous exercise to match 10 those drawings, because it was not just the drawings, 11 but obviously all the other peripheral information had 12 to be collated in terms of impact on the end users of 13 services, traffic management, approvals and legal 14 permissions to grant access to the grounds if it was not 15 necessarily in the city centre. 16 So there was a huge amount of co-ordination 17 involved, including obviously the drawings, and 18 essentially the drawings were to inform us of the works, 19 but then a part of this requirement was for us then to 20 go and order the materials to stock ready to then be 21 issued into kit boxes for actual physical works 22 themselves, the implementation. 23 All that was looked at as a part of the 24 pre-construction services, yes. 25 Q. What I come back to is the core element to my question 150 1 is part of the pre-construction services, Carillion 2 would be producing a document identifying the dates 3 required for release of design information? 4 A. We -- it's not so much the release. It's two things. 5 We expected a lot of the drawings to be available. So 6 they would have naturally been there to absorb into the 7 plan, and if they were not, and at the progress 8 meetings, we went back with tie to say we need to 9 concentrate on these following areas. 10 Q. You will understand, whatever the expectation, what was 11 being said here in terms of the service that would be 12 provided seems to assume that the design information 13 will not have been provided at the start of 14 pre-contractual services, and one of the pre-contractual 15 services is to identify when the design information 16 should be released. Is that a fair reading of your 17 understanding of how things were to happen? 18 A. To a point, but the main point for me was that the 19 understanding that the contract award stage, which 20 obviously is a part of this conclusion of the contract, 21 the majority of the drawings would be available. 22 Q. Can we look forward in this same document, please, to 23 page 152. If we could enlarge the lower half of the 24 page. There is a sub-heading -- still within the 25 pre-contractual services -- "Interaction with the SDS 151 1 provider". Clause 2.10 states: 2 "The SDS Provider and the MUDFA Contractor shall 3 work together, pro-actively, to achieve economically 4 efficient design and buildability with regard to the 5 MUDFA Works." 6 Reading on to 2.11: 7 "The MUDFA Contractor shall review the design work 8 carried out by the SDS Provider, and the MUDFA 9 Contractor shall produce an initial buildability report 10 which shall be finalised by the MUDFA contractor in 11 accordance with the Review Procedure within eight weeks 12 of the Effective Date or such other date as the Parties 13 agree." 14 Just looking at what that says about the role of the 15 MUDFA contractor, that seems to require then to work 16 together with the designer and to provide an additional 17 buildability report with the designer, and that seems to 18 be requiring the very sort of interface that you were 19 discussing earlier and said would be desirable? 20 A. Yes. 21 Q. So in fact it was catered for in the MUDFA contract, and 22 it was expected that Carillion would be doing this. 23 A. It falls in the contract, it is explicit as stated 24 there. The interface, remember, with the SDS was then 25 through tie. So we had a number of meetings where we 152 1 sat down with Alan Dolan and his team, I forget all the 2 names, but I can remember Alan, where we said we need to 3 work through these drawings. 4 Two things were happening at this stage. The 5 initial buildability report was an obligation upon 6 Alfred McAlpine, and also the value engineering to see 7 if we could save money, which would be beneficial to tie 8 and the project as a whole. 9 The point here about the interface design, the 10 drawings that came were of insufficient detail for us to 11 be able to do the buildability report. Part of that 12 buildability analysis would have been what isolation 13 points we would need, are they specified on the drawing, 14 and input too. 15 But they were late, they were not sufficiently 16 detailed, and that put us in a position where we're not 17 compromised in totality, but put in a very, very high 18 challenge position, not being able to influence the 19 output. 20 So I can remember -- I think I pointed out earlier 21 receiving, I think 1,350 drawings in a box with 22 a transmittal at a project review meeting. That's very 23 difficult for me to go through and sort out all that at 24 a meeting. 25 Q. It may relate to that, but could we look, please, at 153 1 page 154 as well, clause 2.15. It says there: 2 "The MUDFA Contractor shall keep the 3 Pre-Construction Programme and Construction Programme 4 under continuous review as the SDS Provider's designs 5 evolve, so as to ensure that the SDS Provider's design 6 release dates meet the MUDFA Contractor's requirements 7 for mobilisation and construction." 8 Is that something else that was affected by what you 9 have just described? 10 A. Absolutely, because whilst we had an outline programme 11 at the bid stage, it then got developed, and whilst the 12 designs were one element to this, the constraints of the 13 city, the traffic management, had to be taken into 14 consideration as well, as a work sequence. 15 This resulted in lots of correspondence, and 16 a request from Alfred McAlpine to make sure that we got 17 focus on the priority works. 18 Now, that then became a further convoluted 19 discussion, because often -- I can remember at this 20 stage, often the works we wanted to start on or 21 certainly get into in terms of phased work, the tram 22 track was being under further consideration, ie the tram 23 route or track line may be change. Therefore that 24 imposed a design freeze for us to be able to move on 25 certain parts of our works. 154 1 Q. Following through the question of -- 2 A. Can I just have some water? 3 Q. Following through with consideration of the buildability 4 issues, could we look at page 157 of the document. This 5 is under the heading, "Construction advice". Could you 6 enlarge clause 2.27. This states: 7 "Following the preparation of the Initial 8 Buildability Report, the MUDFA Contractor shall continue 9 to provide advice to the SDS Provider and such advice 10 shall include the practical implications relative to the 11 buildability of the design." 12 Did Carillion carry out that function? 13 A. We -- we certainly input that design into that. 14 What happened at this stage, I think I mentioned it 15 in the report. I was very adverse to use two words, 16 design and specification as a constructor. So we 17 introduced a series of what we called technical utility 18 review diagrams, and what we did, I had all the teamwork 19 through a series of drawings, and we produced the 20 sketches that would inform the design on the 21 prerequisite details that we would need to do the 22 physical diversion. 23 Q. That's looking at the relationship to the designers. 24 I would like to look at the relationship to the 25 utilities now. If we go on to page 159 of the document. 155 1 If we could enlarge the lower half of the page. You 2 see there there's a heading, "Interaction with the 3 Utilities", and then clause 2.41: 4 "In so far as reasonably practicable, the MUDFA 5 Contractor shall manage arrangements with Utilities in 6 respect of the Utilities' involvement in the MUDFA Works 7 (in whatever capacity) and in respect of any Utilities 8 Works." 9 That seems to put Carillion centre stage in managing 10 the relationships with the utilities? 11 A. That relationship was managed through tie, and there 12 were several -- more than several -- several meetings 13 where we were involved with the utility companies. 14 So we were participant in those review meetings. 15 Q. When you say it was managed through tie, in terms of 16 what was agreed in the contract here, it does appear 17 that it's Carillion that would be managing the 18 arrangements with the utilities and not tie. 19 A. I concur with your observation, but the Halcrow were 20 commissioned by SDS, if I recollect correctly, and they 21 were on point to deal with the utilities direct and to 22 work with SDS and involved us in that process as well. 23 Q. Halcrow were the designers, as you say, the 24 subcontracted designers to Parsons Brinckerhoff? 25 A. SDS were the designers. 156 1 Q. Yes. 2 A. And they had sublet to Halcrow to support or augment 3 their resource challenge. 4 Q. If we look at the paragraph 2.41, still up on screen, we 5 can see at the end of the section I read, it then goes 6 on to say: 7 "This shall include ..." 8 That's managing arrangements. If we go over the 9 page to see what it includes, and look at clause 2.41.5, 10 it includes: 11 "providing support to tie and the SDS Provider to 12 obtain design approvals and agreements with the 13 Utilities." 14 2.41.6 is that it includes: 15 "attendance at any "Utility Group meetings." 16 This once again appears to put Carillion at the 17 centre of requiring to smooth the path between the 18 designers on the one hand and the utilities on the 19 other; is that a fair reading? 20 A. I don't totally concur with that. Our involvement in 21 support of tie was active. We had several weekly and 22 monthly meetings with SDS in terms of articulating input 23 to the design. 24 But to obtain design approval, that was something 25 that was done by SDS and tie. 157 1 Q. I think it's agreed that SDS and tie would be getting 2 the approvals, but in terms of you have been critical in 3 your statement of tie and SDS in achieving that, what 4 this clause -- what these parts of the Schedule seem to 5 indicate is that Carillion were intended to have a role 6 as a facilitator of that, and the question is 7 really: did any of that happen? Did Carillion perform 8 any of that? 9 A. I think -- yes, I think we were active. We're not 10 totally immersed in developing that full design, but 11 certainly contributed to and supported the process. 12 Q. Go back, please, to your statement on page 11. If we 13 look at the top of this page, please. Your answer there 14 says: 15 "Not all access to land and owner consents had been 16 secured at the end of the PCS phase by TIE. This 17 limited planned access and the non-availability of 18 approved for construction utility drawings by 19 SDS/Parsons Brinckerhoff resulted in delay, disrupted 20 and dislocated working by AMIS MUDFA leading to 21 escalated cost. Furthermore the extent of physical 22 change compared to the preliminary design drawings 23 proved to be excessive in many cases making it difficult 24 to identify and track changes to the rates and prices, 25 and had AFC drawings been available during the PCS 158 1 phase then an informed decision could have been made as 2 opposed to dealing with the issues during the main 3 construction phase." 4 First of all, when you're reading the centre of that 5 paragraph, "Furthermore, the extent of physical change 6 compared to the preliminary design drawings proved to be 7 excessive", what are you referring to there? 8 A. The extent of -- it's back to the point that we 9 recollect about the ground penetrating radar. 10 The drawings issued didn't necessarily fully reflect 11 the scope to be performed at the utility diversion area. 12 So the point I was trying to make here is it wasn't 13 until you actually uncovered the utilities and gained 14 exposure to the work itself and you realised how much 15 more work there was to be done. 16 Q. In the start of that section I read out, you refer to 17 the fact that not all access to the lands and owner 18 consents had been secured at the end of the PCS phase. 19 Are you aware that in terms of the agreement between 20 the parties, the access and consents were only required 21 to be obtained in relation to each work order provided 22 by tie? 23 A. This particular area was Forth Ports, and when we 24 embarked upon seeking permission to start the works in 25 that area, it became very evident through a gentleman 159 1 called Malcolm Butchard, I think, if I recollect 2 correctly, he came to see us one day and expressed his 3 concern around there was no approvals to access those 4 areas of land. 5 This also happened down in the Edinburgh Park area, 6 with Stakis Hotels, and certainly with BAA. So not 7 necessarily all land consent and issues, but certainly 8 major stakeholders and permissions were not perhaps 9 where they should have been to support the project at 10 that time. 11 Q. But those consents were not required for the end of the 12 PCS phase in terms of your contract? 13 A. Could you repeat that again, sorry? 14 Q. It may be easier if I just show you the contract rather 15 than paraphrasing it. If you go back to the contract, 16 it's CAR00000300. Go to page 53 of that now. I think 17 that's 153. Can I have 53. This is in the main body of 18 the Agreement. We see in the lower half of the page, 19 a heading, "LAND CONSENTS AND POSSESSION OF SITE AND 20 ACCESS". 21 9.1: 22 "In respect of each Work Section, tie shall from 23 time to time prescribe: the extent of the portions of 24 the Site of which the MUDFA Contractor is to be given 25 possession." 160 1 Then 9.2 and 9.3, 9.2 is: 2 "As part of each Work Order and subject to 3 Clause 9.1, tie shall provide the MUDFA Contractor with 4 all Land Consents which tie believes are necessary in 5 order for the MUDFA Contractor to carry out and complete 6 the MUDFA Works in the relevant Work Section." 7 9.3: 8 "The MUDFA Contractor shall notify tie as soon as 9 reasonably practicable on becoming aware of any new Land 10 Consents which may be required in order to carry out and 11 complete the MUDFA Works." 12 That seems to be indicating quite clearly that the 13 consents only have to be provided in relation to each 14 individual works order, rather than all being available 15 at the end of the PCS phase; do you agree? 16 A. In part, but several of our work areas, and one of the 17 issues at this time was, and on the drawing availability 18 and the sites that we were starting to commence upon. 19 So, for example, from recollection, there was more 20 than one interested party down Constitution Street and 21 the Forth Ports area. 22 But we have a Schedule as a part of a work ordering 23 process that placed it clearly on who needed to get what 24 approvals to proceed with the works. As a part of the 25 work ordering process. 161 1 Q. That was done work order by work order? 2 A. Yes. 3 Q. Can we go back to your statement, please, at page 11. 4 If we could enlarge the lower half of the screen, 5 please. If you look at the response you give to the 6 question (2) there, which is: 7 "What were the main reasons for these difficulties 8 and delays?" 9 That's broadly the difficulties and delays in 10 carrying out the utility works. You say: 11 "The main root causes emanate from excessive 12 contractual interfaces with different parties to the 13 project holding different work scope responsibilities, 14 misaligned programmes with constant changing priorities 15 and imposed change, and TIE programme management being 16 limited in their ability to make the necessary changes 17 without incurring cost increases." 18 Now, just looking at the three things there, the 19 first is said to be excessive contractual interfaces 20 with different parties holding different work scope 21 responsibilities. Could you clarify what you mean by 22 that? 23 A. In the -- in the interface arrangements we had tie 24 dealing with stakeholder community relations. That was 25 one part of tie. 162 1 We had the MUDFA tie team, you know, obviously 2 managing ourselves and providing input and support. 3 They were also then managing SDS interface, and 4 interface with ourselves, and the utility companies 5 obviously was being managed by tie and supported by us. 6 So there were a number of interfaces and from 7 a consents point of view as well, there was advisers to 8 tie, an external interface to make sure that the 9 prerequisite requirements were forthcoming. 10 Q. Two things arise from that. In any situation of 11 a project of this size, one is going to have 12 stakeholders, a designer, a contractor, and a project 13 management delivery organisation. Is that number of 14 interfaces not simply inevitable in works of this type? 15 A. I think, given the city centre challenge, yes, I agree. 16 But when you talk about stakeholders, there are multiple 17 levels of stakeholder. So whilst there's a general, you 18 know, profile of the project within the city, that was, 19 I think, well done from a tie perspective. But as you 20 drop down the levels, you know, business and communities 21 and retail operators, these have an interest, ie from 22 parking and shop deliveries and so forth. And then you 23 get down to impact on, you know, critical infrastructure 24 within the city. Schools, access to old age pensioners' 25 houses. They're not necessarily MUDFA works, but we had 163 1 to have a huge amount of effort in co-ordinating that as 2 well. 3 Q. But if these are inevitable parts of a project such as 4 in a city centre to divert utilities, are these really 5 the reasons for difficulties and delays? Are they not 6 all foreseeable inevitable parts of the work? 7 A. I agree, but the active management of them perhaps 8 needed to be done a little bit better. 9 Q. That was the second part of what arose out of your 10 earlier answer. In what sense did you consider that 11 there were failings in the management that resulted in 12 delays? 13 A. I wouldn't say failings as such, but it was the 14 comprehension of the dynamics of the work areas and the 15 impact on the immediate work areas. 16 What happened at this stage into the sort of mid, 17 I think, 2007 was I was concerned about our works, 18 setting up our job sites, and obviously the traffic 19 management was a big driver. 20 The traffic management local to site was our 21 predominant issue, but often a -- multiple work sites 22 within an area could lead to the city wider impact on -- 23 the city bypass and so forth. So there was 24 a two-pronged attack to the traffic management, 25 management thereof. 164 1 Q. But the traffic management was the responsibility of the 2 SDS contractor; is that correct? 3 A. To be honest, I don't recollect, but the localised 4 traffic diversion to support our works was clearly ours. 5 But our works intended, and our programme had to duly 6 inform that wider piece of work. 7 I do remember a lot of traffic management modelling 8 was done, and that was done, I think, by Halcrow, if 9 I recollect correctly. 10 But if you come down to the granular detail, we were 11 then operating with lots of interface meeting with the 12 bus, Lothian Buses in particular, and all of the 13 Stagecoach and Princes Street and through the routes of 14 the city. 15 So we were then very much intricated in those 16 interfaces ourselves and we had to support it, because 17 our interest was actually to progress the works and make 18 things happen. 19 Q. Once again, is that not something that's inevitable and 20 indeed part of the contract obligations of Carillion, 21 that was foreseen and it should have happened? 22 A. And it did happen, and I think that the challenge here 23 was we ended up doing lot more work than we probably had 24 to do, or needed support to do. 25 So much so, this got so concerning for me, 165 1 I actually at risk and at AMIS's own cost, I hired tram 2 helpers to make sure we had a very boots on the ground 3 interface with the various retail communities and so 4 forth. 5 Q. Looking at that same paragraph, the second point you 6 raise there is "misaligned programmes with constant 7 changing priorities and imposed change". 8 What were the misaligned programmes and what were 9 the changing priorities? 10 A. Well, the programme was becoming a challenge because 11 whilst we'd laid the programme out of our intent to 12 co-operate, certain drawings perhaps weren't supporting 13 the sequence. So we had to slightly change that, which, 14 to be reasonable, was -- could be done. 15 But one of the issues there, it started to break us 16 out into doing not so much concentrated work, but more 17 in different areas, which then introduces more 18 management support and so forth. 19 Q. That's management internal to Carillion we're talking 20 about now? 21 A. Yes. 22 Q. Several different work sites? 23 A. But equally, there was then more work with tie to make 24 sure they could do the communication, consultation, and 25 other parts. Even dealing with the Council themselves 166 1 in terms of bins and taxi ranks, changing for schools 2 and so forth, all those things had to be co-ordinated 3 and we did a lot of that co-ordination, although we 4 shared that with tie obviously, so they could go and 5 enact with the Council the various things that needed to 6 happen through different internal departments. 7 Q. In an earlier part of that answer, you said "whilst we'd 8 laid the programme out of our intent to co-operate, 9 certain drawings perhaps weren't supporting the 10 sequence". 11 Were those drawings coming from the SDS providers 12 weren't coming when you thought they were going to come? 13 A. They were coming, but certainly not in the volume or 14 necessarily the sequence. 15 Q. The third aspect in that paragraph on page 11 that's 16 still on screen is "TIE programme management being 17 limited in their ability to make the necessary changes 18 without incurring cost increases". 19 Could you explain that? 20 A. I think what was happening here was -- I remember 21 certainly Ocean Terminal, Haymarket to a point, and at 22 CityPoint, the tram track alignment was under constant 23 review. Certainly at (inaudible) as I remember it, 24 there was concern about the profile in St Andrew Square 25 for the gradient versus the load on the tram. And 167 1 whilst we were intending to work, we were curtailed, is 2 the word I would use, because some of these areas of 3 track were not frozen in terms of design, but frozen 4 awaiting stakeholder consultation and final agreement on 5 track line position. So that inevitably made us have to 6 look to alternate work areas to progress. 7 Q. Then, at the foot of the page, the question is asked: 8 "What steps were taken (by whom and when) to address 9 these difficulties?" 10 You note you have identified a number of major risks 11 and concerns and actively encouraged tie to engage in 12 the issues. 13 But then when you go over the page and look at the 14 upper half, we have seven different paragraphs there or 15 sentences there where you indicate steps that were 16 particularly taken by Carillion to try and ameliorate 17 the difficulties; is that correct? 18 A. Our central team, the AMIS team, were hugely conscious 19 that we need to progress the works. We want to support 20 the tram. That was always our intent. But whilst 21 things were not necessarily happening, and to your point 22 about the contract, we were there to stimulate, support 23 and engage, this is the things we tended to do in high 24 support of progress. 25 To the -- to produce the utility review diagrams, we 168 1 obviously didn't use the word "design", but we supported 2 and furnished SDS with lots of sketches and things that 3 we'd expect to see on drawings and so forth. 4 I mentioned briefly the tram helpers. I chose to 5 deploy these people. They were good teams and I on many 6 occasions was out at 5 in the morning with these teams 7 to make sure that the retail community had access to and 8 supported the ongoing business for the various people. 9 And a particular point was the Shandwick Place. If you 10 recollect, we shut that down for quite a long time, but 11 the businesses carried on and we had to support them 12 actively, which is -- it was our choice and it was the 13 right thing to do. 14 Q. Can we look, please, back to the contract. That's 15 CAR00000300. Can we go this time to page 182. 16 This is still within Schedule 1 to the Agreement and 17 it's the services that are to be provided by Carillion. 18 We can see the heading at part 4 or clause 6 of this, 19 "Stakeholder Management Liaison and public information". 20 If you look at clause 6.2: 21 "The liaison obligation referred to in paragraph 6.1 22 shall include, but shall not be limited to, the 23 following matters." 24 Then go over the page. In the upper half 6.2.8 is: 25 "recruiting and providing "Tram Helpers" to man each 169 1 of the Work Sections at the time when the MUDFA 2 Contractor is carrying out the MUDFA Works to provide 3 a customer interface." 4 So does this indicate that the tram helpers idea is 5 not one that Carillion came up with to be extra helpful, 6 but was simply complying with the contractual 7 obligations? 8 A. I concur, but there were two types of tram helpers. 9 There were the people immediately working around the 10 sites as we opened up the roads or the local area. That 11 interest there, and that's what 6.2.8 alludes to, is the 12 fact we needed to preserve and make sure we had a safe 13 public interface with the community as well as the work 14 holders themselves. That was to supply information, 15 support and to answer questions. 16 The other tram helpers I alluded to earlier were 17 around servicing the business community, which was 18 outside the work sites. That was just in general 19 support or making sure business carried on. 20 Q. Looking briefly back, if we may, to page 12 of your 21 statement, the one we left off from, these various 22 subparagraphs down there, when you say what AMIS did, 23 these were really all requirements of the contract, 24 weren't they? 25 A. In part, yes. 170 1 Q. What of that do you think was not actually required by 2 the contract? 3 A. I think it's a question of the extent of those 4 activities, because the tram helpers, for example, were 5 in the contract specifically required to support the 6 imminency around the site itself, and, you know, we'd 7 gone the extra mile, as I would express, to say that 8 we've done a lot of work in the wider city, which in 9 fact tie took those people across into their own 10 community and liaison team as it was. So I think it's 11 a bit more than just what was in the contract. 12 Could you perhaps blow that up a little bit. 13 I can't quite see -- 14 Q. Yes. 15 A. Thank you very much. 16 If you -- if you take, for example, the middle one 17 there about masterminding the city centre remedy, so at 18 Lothian junction, I recollect, that was going to be 19 quite an extensive piece of work at House of Fraser. We 20 came up with a scheme which we socialised with tie, and 21 in fact our team had to go a step further to help Faber 22 Maunsell do the city traffic and the city -- what we 23 call the programme logic controllers for the traffic 24 lights. That was far more than the utility diversions. 25 So this was an attempt to get clarity on isolation 171 1 of road. We took the extra works on ourselves, as 2 a part of the solution, to create the junction which you 3 will remember across the end of Lothian Road, and we 4 supported the function in terms of the citywide analysis 5 of the modelling, which I think is far beyond what was 6 expressed in the contract. 7 Q. If we go back to the contract in that regard, please, 8 it's the one that ends 300, page 55. This is going back 9 to the pre-contractual services. 10 We can see 2.26 at the foot of the page: 11 "The MUDFA Contractor shall provide all necessary 12 support to tie and SDS Provider to ensure that TTROs 13 [Temporary Traffic Regulation Orders] are obtained." 14 If we read that together with page 167, if you 15 enlarge 3.8 and 3.9. Just concentrate on 3.9: 16 "The MUDFA Contractor shall continue to support the 17 SDS Provider in relation to the resolution of the 18 policies and agreements for traffic management and the 19 submission of the TTROs which will be required in 20 respect of the MUDFA Works." 21 If you go over the following page, page 168, and 22 enlarge 3.14, we can see it says: 23 "The MUDFA Contractor shall provide all necessary 24 support to tie and SDS Provider to ensure that TTROs are 25 obtained." 172 1 Was it not an obligation on Carillion to do all 2 these things to ensure that the traffic management 3 was -- 4 A. I agree, and I think we did that, and we serviced the 5 needs of -- the obligations placed upon us. 6 The point I made about the masterminding was we had 7 to create a citywide solution, which is a bit more than 8 just what's stated in 3.14 onwards. 9 MR LAKE: My Lord, if we're going to take a break in the 10 afternoon, this would be a good time. 11 CHAIR OF THE INQUIRY: We normally have a break of about 12 15 minutes at this time for the shorthand writers. We 13 will resume again at 3.15. In the meantime, you will 14 get a cup of tea or coffee. 15 A. Thank you, my Lord. 16 (2.59 pm) 17 (A short break) 18 (3.15 pm) 19 CHAIR OF THE INQUIRY: You're still under oath, Mr Malkin. 20 Yes, Mr Lake. 21 MR LAKE: Thank you, my Lord. 22 Could we go now please to look at page 28 of your 23 statement, please. You will see question (3) is 24 a question: 25 "To what extent ... did ... utilities design also 173 1 contribute to the delay around this time?" 2 The time in question is May 2007, because the 3 earlier questions asked on the previous page concern the 4 Scottish general election that took place at this time. 5 So the question is: 6 "To what extent ... did delay in utilities design 7 also contribute to the delay around this time. To what 8 extent, for example, was the three month delay to the 9 site works noted in the above meeting note caused solely 10 by the election and to what extent would a similar delay 11 have occurred in any event due to other factors, 12 including, in particular, late design." 13 Scroll down so we can see your answer. You say: 14 "The non-availability of SDS utility design drawings 15 had a major and material impact on AMIS MUDFA commencing 16 and performing the main construction works. Had the SDS 17 design drawings been issued, SUC/AMIS MUDFA reviewed and 18 approved in September 2006 as planned, and had been 19 issued in the correct sequence to support working in 20 Section 1, then it is estimated that AMIS MUDFA would 21 have completed approximately 4-5 kilometres of 22 diversion works over the April to July 2007 period. To 23 put this into context at the end of June 2007, only one 24 SDS utility approved drawing had been released from 25 approximately 1,350 drawings expected/required by AMIS 174 1 MUDFA, which was rejected and illustrates the extent of 2 delay and detrimental impact on AMIS MUDFA ability to 3 make progress." 4 It's just that that doesn't quite address the 5 question, or I think it may be said by inference, you 6 note there that there was only one approved design 7 available by the end of June out of the 1,350 that there 8 should have been. Does it follow then that during the 9 period affected by the general election, May, June and 10 July, really the election made no difference because 11 there were no drawings ready to go? 12 A. The election that was about to happen at that time, we 13 were informed that, you know, there was a question as to 14 whether the tram would proceed or not, and we were asked 15 to curtail our involvement in terms of mobilising. 16 The drawings particularly, whilst we'd seen the 17 preliminary drawings, goes back to the work ordering 18 preparation, we were expected to have seen more advanced 19 drawings and issued for construction drawings way back 20 in the late part of 2006. 21 That would have put us in the PCS phase, the 22 project -- the pre-construction services phase, more 23 informative effort, and that would have lined us up much 24 better to have started the works, in earnest as per the 25 construction phase. So it is my belief that we could 175 1 have certainly done significant works and moved forward 2 at that stage had we had the information. The 3 uncertainty around election just put us into not so much 4 delay, but it was just an uncertain period as to whether 5 it would proceed or not. 6 Q. We can scroll down to look at the foot of this page. 7 You note that: 8 "The early part of the MUDFA works took part in the 9 mid to lower region of Leith Walk along to 10 Casino Square." 11 Why was that section chosen over any other? 12 A. That, from recollection, is where we had some drawings. 13 I remember particularly at the very bottom end of Leith 14 Walk those drawings were being looked at for different 15 reasons, but they were the ones that were becoming 16 available. So that was what triggered the working in 17 that area. 18 Q. If we then go to page 30 of your questions and answers, 19 and look at the upper half of the page first of all, 20 question 25 notes: 21 "In a letter dated 3 August 2007 you sought 22 a variation of Schedule 4 rates and prices." 23 There's also reference to a second letter in which 24 that was done. 25 In fact, that was done on numerous occasions 176 1 throughout the Carillion works, wasn't it? 2 A. The -- yes, the original tender and bid was based on 3 a set of AMIS norms which was the excavation, utility 4 diversion. So the cost and the price for the project 5 was based on norms. But the congestion of these 6 utilities and the more intrinsic work we had to perform, 7 the question was asked about a revision of those rates 8 and prices. 9 Q. If we scroll down a little bit on this page, we can see 10 the last paragraph in your answer is: 11 "Due to the fact that TIE MUDFA could not control 12 SDS/Parsons Brinckerhoff utility design outputs, nor 13 obtain, finalise and approve the prerequisite 14 information required from various departments with TIE, 15 the TIE MUDFA project team elected to report that there 16 was no requirement to furnish AMIS MUDFA with any formal 17 response." 18 I just wondered, when you say there was no 19 requirement to furnish AMIS MUDFA with any formal 20 response, does that mean your position is that your 21 requests for a variation in the Schedule 4 rates and 22 prices was simply ignored? 23 A. We were very transparent about this. We had several 24 meetings around these subjects, but our request to tie 25 was never really formally responded to. 177 1 Q. Could I ask you to look at a production, please. It's 2 CAR00000340. 3 You can see that this is a letter dated 3 June 2008. 4 It runs -- it's addressed to David Smith at Carillion, 5 and if we jump forward to page 6, we will see that it 6 comes from the Construction Director, MUDFA Construction 7 Director within tie, Graeme Barclay. Do you see all 8 that? 9 A. I -- yes, I recollect Graeme, yes. 10 Q. If we jump back to page 1, we can see the heading is 11 that there's "EDINBURGH TRAM PROJECT – MUDFA - Schedule Four 12 Rates & Prices. 13 Is this not a letter which over some time goes 14 through and rejects the various claims, the various 15 bases on which it is claimed there should be a variation 16 to the Schedule 4 rates and prices? 17 A. This had been a long -- this had been one of several 18 longstanding debates. 19 Q. But whenever the matter was raised by Carillion, and it 20 was raised on many occasions, there was a response from 21 tie rejecting the claim for a variation; is that not 22 correct to say? 23 A. Could you repeat that, please? 24 Q. Although the request to vary the Schedule 4 rates and 25 prices was made frequently by Carillion, on each 178 1 occasion that it was made, tie did give a response and 2 rejected the request for a variation? 3 A. I think there was a -- I think it's fair to say there 4 was ongoing discussions and the -- I think that the 5 formality of a response was not necessarily forthcoming, 6 yes. It took a long time to get. 7 Q. We see here, just one example of a response on the 8 screen in front of us. 9 A. This -- sorry, could you just repeat the -- 10 Q. This is just one example of where tie did take the 11 trouble to write to Carillion and expressly reject 12 a claim for a variation and explain why they were 13 rejecting that claim. 14 A. Okay. But these discussions started some time before. 15 I mean, I think, from the top, I can't see the letter; 16 is that 2008? 17 Q. Yes, this is 3 June 2008. This is just one example? 18 A. Yes. 19 Q. There are a number of letters. 20 A. This discussion had been mooted and discussed at 21 meetings and so forth, but long, long time, way back 22 into 2007. It had been going on for some months. 23 CHAIR OF THE INQUIRY: Earlier in your answers you said that 24 you had several meetings about this matter, but your 25 request to tie was never really formally responded to. 179 1 Is that not a formal response or do you mean something 2 different by a formal response? 3 A. That is a formal response, yes, I concur. But this is 4 back to the letters we submitted and had discussed at 5 progress meetings, and we were looking then for 6 a response long before this particular one. 7 CHAIR OF THE INQUIRY: Thank you. 8 MR LAKE: Was there a concern within Carillion that the 9 contract worked to their disadvantage, and they were 10 going to under-recover in terms of the sums that they 11 would get? 12 A. It was not so much a concern about under-recover. It 13 was -- there were several things happening at this time, 14 back in the tail end of 2007. 15 Not so much under-recover, but I think it was to get 16 recognition and recompense for the amount of the work 17 that was being done compared to the originally -- the 18 work envisaged. That was their concern. 19 Q. Could we look at a production, please. It's 20 CAR00000244. We will start looking at the lower half of 21 the screen. It's from someone called Keith Gourlay to 22 John Casserly. John Casserly, we have heard, worked 23 within tie. Was Keith Gourlay someone who worked within 24 Carillion? 25 A. Keith Gourlay was the Commercial Manager, yes. 180 1 Q. We see it's dated 25 September 2008. It does say: 2 "John, as discussed at length yesterday please find 3 attached the following." 4 There's various things described which I don't think 5 I need to read through. But it goes afterwards: 6 "Key and critical items. 7 Model; this is my final position on turnover, 8 change adjustment, output, 50 hour week adjustment, 9 adjustments for re-work and baseline tender outputs." 10 Do you see all that? 11 A. That's the first time I have seen that. That's dated 12 2008. 13 Q. Yes. 14 A. I disappeared from the project in, I think, tail end of 15 April 2008. 16 Q. Could I ask you to look at the attachment to that, 17 please. It's CAR00000245. 18 Accepting this is an attachment to an email written 19 after you were there, did you ever see this table or 20 something like it showing the extent to which Carillion 21 considered they were under-recovering on the project? 22 A. I -- I have not seen that table. But going back, say, 23 six to ten months before, we had an obligation under the 24 contractor for -- to do a final cost to completion, and 25 that was an ongoing exercise, and it was not so much 181 1 nervousness, but there was always a concern about the 2 work we were having to do compared to the work that we 3 had -- the work upon. 4 So that was a concern. It wasn't the primary 5 driver, but what was a concern at that time was back to 6 the formality of the work ordering process, because that 7 was the only way that we could start and commence a work 8 area with a clear understanding of what is to be 9 performed. We performed the works, take a cognisance of 10 any due change that was necessary, and then at each work 11 site conclusion, we could final account that work site 12 and contribute to the final account, and conclude on the 13 monetary matters. 14 That was important for me for a different reason at 15 that time, is because the more work sites we did would 16 build up a better historic knowledge to better inform 17 the forecast forward. 18 So with that in mind, that was my driver, but it 19 wasn't the primary concern at that time to 20 under-recover. 21 But what was a concern was making sure we were paid 22 for the works we'd performed. 23 Q. Could we go then to look at page 33 within your 24 statement. Could we go to -- it's question 30, the 25 first part of the answer to that. We can see there that 182 1 you're referred to a letter and asked about points 2 relating to -- which makes points related to design. 3 You were asked: 4 "What were the main points you were making in your 5 letter?" 6 If we look to the second part of your answer, you 7 say: 8 "In effect, AMIS MUDFA were being expected to design 9 at-site, source materials at risk, perform the works 10 with no cost control, and more importantly carry out 11 the works with no HAZID/HAZOP information which 12 heightened the risk and threat to both AMIS MUDFA 13 operatives, residential and public safety. This was 14 simply unacceptable to AMIS." 15 I take it these all come down to criticisms of the 16 level of design detail and the content within that 17 design? 18 A. It's a combination of several things, but the process 19 expressly required that the work ordering to be done and 20 several parties to contribute to that work ordering 21 process. 22 That ranged from the technical detail and twofold in 23 technical detail. The scope to be performed, and 24 secondly, we never received the hazard analysis from the 25 deliberations between the utility company, ourselves, or 183 1 the designer. 2 That alluded to the fact that the apparatus, the 3 condition, whether it was old or new, the 4 interconnecting joints, we needed to understand that 5 level of hazard or threat to operative. 6 So that information, the technical information, the 7 quantities required to purchase because we had to have 8 a lead-in time to buy valves or pipe and so forth, 9 there's a whole set of requirements around, including 10 the traffic management to be able to perform that work, 11 in the controlled manner. 12 It was never going to be perfect, but a clear 13 understanding of the requirements, a well laid-out work 14 order, would have been the best basis by which any 15 configuration or change could be measured against and 16 then agreed at the final account. 17 That was the intent here, and that was certainly the 18 push at the time to make sure everybody understood what 19 was required. 20 CHAIR OF THE INQUIRY: Can I just ask, the HAZID, is that 21 the identification of the hazards? 22 A. Yes, your Lord, it's a process by which the designer 23 will go through and make an assessment, with input from 24 others, as to what's the likelihood of that, if it's 25 damaged or the condition, the integrity of the pipe, if 184 1 it was old, it may need to be dealt with or supported as 2 a temporary arrangement before you did the actual works. 3 So it's to comprehend that risk to carrying out the 4 works. 5 My concern was twofold: one, my own operatives and 6 secondly, the impact on the public safety issue. 7 CHAIR OF THE INQUIRY: And the HAZOP, is that the hazard 8 associated with the operation itself? 9 A. HAZOP, yes. HAZID is the hazard identification, and 10 then in the works bit is the hazard in operation. 11 CHAIR OF THE INQUIRY: Is that a process that's required by 12 any regulations or health and safety or any -- 13 A. It's through health and safety and the risk that -- the 14 obligations to carry out a risk appraisal is an 15 obligation. But furthermore, these are techniques used 16 quite frequently to apply that demand or requirement on 17 to the physical works. 18 CHAIR OF THE INQUIRY: If you didn't have these, would you 19 be in your -- would you be entitled to refuse to carry 20 them out because of the risk to your employees or 21 operatives and the risk to the public? 22 A. Absolutely. I was very sensitive of the fact it's not 23 just a MUDFA diversion. This is tie's reputation, it's 24 the city, and it's a public safety issue. So that was 25 our challenge, is the word I would use, and it was our 185 1 plea to make sure due consideration was given to this. 2 CHAIR OF THE INQUIRY: And did you ever get them? 3 A. No. Well, we got them -- I'll correct that. We got 4 them in part because the challenge we placed, then we 5 started to get some of those outputs. But effectively 6 we had to make that connection ourselves. 7 And make sure we informed that work package. 8 CHAIR OF THE INQUIRY: Thank you. 9 MR LAKE: In that regard, could we look back, please, again 10 to the contracts. CAR00000300. Could we go to 11 page 178. Once again, in part 1 of the Schedule to the 12 Agreement here, we've got a section number 5, "Risk". 13 It says: 14 "The MUDFA Contractor shall ..." 15 Then there's a table setting out some obligations; 16 do you see that? 17 A. Yes. 18 Q. Could we go forward, please, to page 181. Enlarge the 19 upper half there. We can see the obligation is that the 20 contractor shall: 21 "Create and submit a construction hazard report 22 which comprises a Hazard Identification stage (HAZID)/Hazard 23 Operability study and include contribution from the key 24 parties including the Utilities, the SDS Provider, tie 25 and the Planning Supervisor. The construction hazard 186 1 report shall confirm in detail business continuity 2 plans, mitigation plans and controls for all site risks 3 including property damage, safety, utility damage, 4 et cetera." 5 Is that not indicating that the responsibility for 6 the HAZID and the HAZOP reports was once again on 7 Carillion? 8 A. That clearly states that we have a huge part and an 9 obligation to perform that service. I concur. 10 But it's around the intelligence of making sure that 11 is really understood and the designer for carrying out 12 the analysis, having spoken to the SUCs or got the 13 drawing information, what we would not necessarily be 14 directly involved in is the exchange of information as 15 to the apparatus, its condition, that it's as-built 16 information. That was an exchange of information 17 between the designer and the respect -- the respective 18 SUC. 19 We did input to this, and we did carry out a lot of 20 risk appraisal because we have method statements, we had 21 risk assessments to do for each of the sites. So we 22 participated in that, and our concentrated efforts would 23 be around ground condition, subsidence of the road, 24 impacting on the operability angle; not so much the 25 hazard identification of the asset, of the asset and the 187 1 apparatus status. 2 Q. In terms of things like getting information, you 3 suggested about the condition of the assets in the 4 ground. That's something which might not be known until 5 they're uncovered anyway, to know how corroded pipes 6 are? 7 A. That is a very relevant point. The records I spoke 8 about, I think very earlier on, was around where it had 9 been more recent work, and with the obligations placed 10 upon different contractors. Those records were 11 reasonable. 12 But the older records, certainly left us a little 13 bit vulnerable in terms of its asset condition, yes. 14 Q. Just looking once again at the contractual obligations 15 of Carillion in relation to design and these matters, 16 could we go to page 34 of this document. Look at the 17 upper half of the screen. This is in the main body of 18 the contract, and we see clause 2.3: 19 "The MUDFA Contractor shall (each as distinct and 20 separate obligations) carry out the MUDFA Works 21 (exercising the level of skill, care and diligence set 22 out in Clause 2.2) ..." 23 Then if you read down to clause 2.3.9, it's: 24 "to assist tie in ensuring that the design of the 25 MUDFA Works prepared by the SDS Provider is buildable 188 1 insofar as this is compatible with the obligations on 2 the MUDFA Contractor under this Agreement." 3 If you read over the page to 2.4, it notes: 4 "Notwithstanding that the SDS Provider shall be 5 responsible for the design and specification of the 6 MUDFA Works in accordance with all applicable Law 7 (excluding the Temporary Works), the MUDFA Contractor 8 shall be responsible for its input into the design and 9 specification of the MUDFA Works or any part thereof 10 (except as may be expressly provided in this 11 Agreement)." 12 Is that not emphasising once again the 13 responsibility of the MUDFA contractor, Carillion, to 14 provide its input into the design to make sure it was 15 getting the sort of information that it required? 16 A. That places a clear requirement on us, and we did 17 perform, through meetings and other means, input too. 18 And that's very much evidenced on the utilities sketches 19 that we drew to support the design development. 20 Q. If we could go then to page 46 of the questions and 21 answers, if you could look at the upper part of the page 22 here, there's been a question regarding the recovery 23 plan for utility works and then you're going on to 24 indicate what suggestions had been made in this regard. 25 Reading from the fourth line on this page, you've 189 1 got: 2 "[Carillion] had already intimated to TIE during the 3 PCS [pre-construction services] phase that there could be 4 benefits carrying out the utility diversions immediately 5 in advance of the Infraco works once a road section had 6 been closed, which resulted from the AMIS TM [traffic 7 management] discussions initially, and was the inherent 8 thinking when Shandwick Place road closure was 9 considered where it was known that the extent of utility 10 diversions were going to be challenging." 11 We know that what has happened generally with the 12 project works is that utility works were carried out in 13 advance of the infrastructure works so as to leave in 14 essence what was believed to be a clear path. You seem 15 to be here proposing that the two of them are done in 16 tandem. 17 A. The -- the extent of those -- Shandwick Place in 18 particular, the extent of the underground utilities 19 were -- were quite extensive, and the mouth and the 20 inter-junction of Lothian Road had quite a lot of work in 21 there also. 22 So we'd gone from a scale of localised work sites to 23 a wider work site altogether. And that curtailed, you 24 know, the -- it imposed a restriction on the traffic. 25 So some of the discussion at that point was: could this 190 1 be done as a part of the pre works of the Infraco 2 contractor to do the utility diversions in front of? So 3 point number 1 is MUDFA was solely there to divert all 4 the utilities, to give a clean swept path for the 5 Infraco constructor. But when the roads got to a point 6 where it was significantly larger than just the 7 localised work site, the question we asked was around 8 could that be done as a part of the Infraco pre works? 9 Q. What are the advantages of doing it as part of Infraco? 10 A. Well, the advantages essentially with the Infraco 11 commanding longer street runs, the impact on the traffic 12 would be dealt with on a larger scale, so to speak. 13 And therefore it could be absorbed easier into that. 14 The MUDFA works, when it gets to a scale where it's 15 shutting off major sections of the road, it becomes, you 16 know, a concern was the disruption to the traffic and to 17 the local -- or to the wider area traffic in the city. 18 That was a concern. 19 So it was a question of could it be done. The 20 challenge in time at that side was also the end stop 21 date for us to accommodate the Infraco works, because 22 while we're not party to any discussion with the Infraco 23 for commercial or procurement reasons, which we 24 understood, it was still a demand there to make sure we 25 were all finished ready for the Infraco to start -- 191 1 Infraco constructor to start. 2 Q. In your view, would there have been an advantage in 3 terms of either time or cost if the whole of the utility 4 works had been done together as a package with the 5 infrastructure works? 6 A. No, and to -- alluding to the point you've made on this 7 particular exhibit, it was not so much were we going to 8 let the works go to Infraco. It's on certain parts of 9 the tram route, where there was significant closure to 10 be done, it perhaps on one or two areas would be better 11 done by the Infraco at that point. 12 Q. Does it means resulting in one road closure rather than 13 two road closures? 14 A. Yes, because at this point the local work for MUDFA is 15 significantly larger than just a localised diversion or 16 a series of localised -- it's going into maybe 200 or 17 300 metres of tram route isolation, and that really goes 18 on to a scale where it's best done by others. 19 Now, that's not to say it should have been done, but 20 the question was socialised around: is it best to do it 21 on that basis? 22 Q. I can see that if you're going to have to take a larger 23 stretch of roadway to do even the MUDFA works, it might 24 make sense to tie that to the Infraco work which also 25 requires a larger stretch of roadway. And that has an 192 1 advantage in traffic management. Are there any 2 advantages or disadvantages from the technical 3 carrying -- the technical aspects of carrying out the 4 works? 5 A. I think from a technical aspect, the utility, there's 6 probably no difference, but to be -- for my observation 7 would have been it would have been more expedient 8 because in digging the holes for the tram route, whilst 9 you have to be a little bit cautious about the utility 10 detection and support whilst they're in -- in -- 11 elevated from the ground, that's still more expeditious 12 and cost effective than doing it twice, and ultimately 13 the disruption to traffic and city wider community. 14 Q. That's ultimately what I was going to come to. Apart 15 from traffic interruption and technical expediency, is 16 it going to be cheaper? 17 A. Well, this was an assessment we were making. It wasn't 18 quantified, but our feeling was at the time certain bits 19 could have been done as a pre works into Infraco, more 20 expeditiously, probably more cost effectively, and the 21 time would have been absorbed as opposed to doing it 22 twice. For certain areas. 23 Q. Can we then look at page 52 of your statement. Under 24 the heading "Final Thoughts", you were asked a question: 25 "How did your experience of the Edinburgh Tram 193 1 Project compare with other projects you have worked on 2 (both previously and subsequently)?" 3 You say: 4 "The Edinburgh Tram project was extremely 5 challenging from the outset, and probably the most 6 challenging project in my career. Having delivered many 7 projects successfully in the past, the unique 8 differentiator on the Edinburgh Tram project was the 9 stakeholder challenges and inner city traffic management 10 planning which were recognised and understood at the 11 start." 12 I can understand inner city traffic management 13 planning, but what were you referring to when you said 14 stakeholder challenges? 15 A. I went through the pre-construction services phase for 16 three, four months. I was involved extensively at that 17 time. Alistair Slessor was the original project manager 18 for tie, and I'm not sure exactly when he left, but in 19 looking for his support, as tie, I found myself in 20 a situation where I was going to regular meetings, 21 Shandwick community, there's a huge amount of -- not 22 invasion, that's probably too strong a word, but 23 certainly a high interest in the tram, the route, and 24 more importantly, what it meant to business users or 25 residents in their immediate areas. 194 1 So I found myself in a very highly challenged 2 position where, unless I knew exactly what works is to 3 be performed, back to drawings and detail, and work 4 ordering, and people, when I went to -- I can recollect 5 going to the east Shandwick, I think it was, community 6 council. It was a very healthy meeting, very, very 7 engaging meeting, but the questions were asked were 8 difficult to answer because people would ask: how 9 do I park my car; when does it start; is it Tuesday, 10 Thursday? So they were asking for granular detail for 11 personal reasons, which I understand, but the whole -- 12 along the route there's an awful lot of stakeholders we 13 to engage with and had to support the project far for. 14 And that ranged from, you know, the various retail 15 communities. There were several of those, the 16 Lothian Buses and the Stagecoach buses. The whole 17 dynamics of the city route, including the Edinburgh 18 Airport, the BAA. All these were interested parties 19 looking to understand what's to be done, when, what the 20 impact was to them personally. 21 When I talked about that from the onset, I think it 22 was accepted it would be challenging, but it was the 23 level of intrusion and the level of anticipated detail 24 people wanted very, very quickly, which is not 25 a surprise. 195 1 Q. I'm looking at the paragraph following. You note that: 2 "The different contracts and management structures 3 in my view compared to my previous experiences did not 4 naturally align, encourage good communication, or 5 promote effective project team working in order to 6 accomplish the same goals." 7 When you're referring to different contracts, is 8 that the differentiation between MUDFA and Infraco or 9 between design and MUDFA? 10 A. Well, all those things because I think from recollection 11 probably before my time there was a technical services 12 contract. That was supporting tie. Then there was the 13 SDS design services contract. And that was obviously 14 tied into the statutory utility companies, and tie were 15 managing that interface, and managing it concurrently 16 with ourselves, MUDFA. And then we had the Infraco. 17 So in terms of strategy, I think it's quite clear, 18 it was well laid out, but the meticulousness to manage 19 those interfaces was the challenge, and that takes 20 a huge amount of -- not so much the integration, but 21 getting the system definition and the co-alignment 22 against the programme was very, very challenging. 23 Q. You then talk about the management structures and 24 express the view that they didn't encourage good 25 communication or promote effective project team working. 196 1 What was it about the management structures that had 2 that effect or didn't achieve that result? 3 A. Well, in the -- for me, in the pre-construction services 4 phase, it was very much about getting co-alignment 5 between teams, contributors and deliverables. So that 6 was a very important time because it was obviously pre 7 construction works, but that was the time to get 8 integration, understanding and clarity on roles, 9 responsibilities and accountabilities. 10 Whilst it's very clear in the contract, it's still 11 back to people, managing meetings, and actions and 12 getting support. 13 So it tended to be managed on a contract basis, as 14 opposed to an inter-contract support and assist basis. 15 So the interface between co-collaborators was not as 16 clear and as free flow as it could have been. 17 Q. How have these matters been handled differently and 18 better in other contracts you've worked on, in your 19 view? 20 A. Most large scale projects such as this size would -- 21 would tend to put certain work packages in the same 22 place for a single point management. So design, 23 procurement, and construction might be managed by one 24 entity. 25 So in the case of the tram, you had obviously buying 197 1 the actual tram sets, for procurement for the provision 2 of the tram sets, the tram themselves. 3 You had all the Infraco. So that's quite clear, 4 Infraco, but the lead-in to that in terms of the 5 interfaces could have been done probably a little bit 6 smoother for sure. 7 Q. Just to make sure I understand what you mean, when you 8 say work packages in the same place for single point 9 management, is it you would still have -- correct me if 10 I've got this wrong -- you would have still have 11 separate contractors for MUDFA, Infraco and other 12 matters. 13 A. Yes. 14 Q. What do you mean by single point management to deal with 15 these? 16 A. Because we had -- we, although we're interfacing with 17 SDS, for example, I was looking and needed support from 18 the tie interactive management at that time to make sure 19 we were all tied up. 20 For example, Alistair Slessor, back in the early 21 days, he left the project after two or three months, and 22 my concern at that time, because it was very important 23 to get those relationships and meetings established, 24 I referred that in one particular programme meeting, 25 a monthly programme meeting, with Susan Clark, 198 1 and I asked her to make sure we could get this 2 co-alignment more specific and more co-aligned to 3 output. 4 Normally that would have happened quite naturally. 5 Q. The response might be, however, that if you want single 6 point management of these things, tie were the single 7 point management on behalf of the Council for each of 8 these contracts. Was that not the essence of exactly 9 what was happening here? 10 A. It was, but it's down to the interactive operation. 11 It's down to the practical making it happen day by day. 12 So at that particular time, although we had weekly 13 meetings and catch-ups, we were not left to our own 14 devices. Far from that. But it tended to be monthly 15 meetings with lots of priorities going on, when there 16 was a prime time in the PCS phase to make sure 17 everything was lined up for output and success. 18 Q. Would that be a matter of a stronger point management? 19 A. An active -- given the MUDFA works, which is quite 20 clear, and the strategy is set, to divert, set down and 21 make sure it's clean swept for the tram foundations, the 22 objective is very clear. 23 But the practicality of getting management teams 24 from, say, process and -- process orientated down into 25 practicality, that's when it comes down to planning, 199 1 detail, stakeholder engagement, there's a lot of detail 2 to be sorted out. 3 So it's not a question of managing a process. It's 4 a question of being actively involved and influencing 5 the desired outcome. 6 MR LAKE: Thank you very much. My Lord, I've got no further 7 questions. 8 CHAIR OF THE INQUIRY: Just to confirm, Mr Fairley, you 9 still don't have any questions? 10 MR FAIRLEY: Unbelievably, my Lord, no, I don't. 11 CHAIR OF THE INQUIRY: And I don't think anyone else has 12 indicated. 13 Thank you very much, Mr Malkin. You're still 14 subject to your citation. So technically you could be 15 recalled if we needed further questions, but it's 16 unlikely. 17 If that were to happen, you would be contacted by 18 officials from the Inquiry. 19 Thank you very much for your time. 20 A. Thank you, my Lord. 21 (The witness withdrew) 22 (3.53 pm) 23 (The hearing adjourned until Wednesday, 8 November 2017 at 24 9.30 am) 25 200 1 INDEX 2 PAGE 3 MR GRAEME BARCLAY (sworn) ............................1 4 5 Examination by MR LAKE ........................1 6 7 MR ANDREW MALKIN (sworn) ...........................113 8 9 Examination by MR LAKE ......................113 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 201