1 Thursday, 23 November 2017 10 MR LAKE: My Lord, as the next witness is to be Mr Burt, and 11 it's proposed that my colleague Mr McClelland will take 12 his evidence, I would seek leave to just withdraw. 13 MR ROBERT BURT (sworn) 14 CHAIR OF THE INQUIRY: You are going to be asked some 15 questions, initially at least, by Counsel to the 16 Inquiry, Mr McClelland. If you just listen to the 17 question and answer it as clearly as possible, speak 18 into the microphone so everyone can hear you, and also 19 speak at a measured pace so that the shorthand writers 20 can record what you say. 21 Examination by MR MCCLELLAND 22 MR MCCLELLAND: Can you please state your full name. 23 A. Robert Elliot Burt. 24 Q. Can we please have up on screen document TRI00000146. 25 I think, Mr Burt, you should have a paper copy of that 119 1 document sitting in front of you? 2 A. I do. 3 Q. Can you confirm that these are the written answers that 4 you have supplied in response to questions asked of you 5 by the Inquiry? 6 A. Yes, they appear to be so, yes. 7 Q. Now that you're under oath, can you confirm that your 8 answers are complete and truthful and that you are 9 content they should stand as your evidence to the 10 Inquiry? 11 A. Yes, I can. 12 Q. Is there anything in them at all that you no longer 13 think accurate or would like to clarify? 14 A. No. 15 Q. We will take these answers as read, but we have a few 16 follow-up questions for you. 17 First of all, just to put your evidence in context 18 today, briefly on your qualifications and experience, 19 you're a chartered surveyor; is that correct? 20 A. Correct. 21 Q. And you have an LLM in construction law? 22 A. Correct. 23 Q. Your CV says, I think, that you have 28 years' 24 experience in the construction industry. Just in broad 25 terms, what is the nature of that experience? 120 1 A. My initial -- after qualifying as a quantity surveyor, 2 I spent three years in private practice, and then seven 3 years in contracting. Thereafter I joined a firm of 4 construction contract consultants, and have been working 5 in the Dispute Resolution field for 21 years now. 6 Q. Your CV also says that you have a specialisation in 7 quantum and delay analysis for building and engineering 8 projects. 9 Can you just give us some indication of the 10 experience that you have in that field, please? 11 A. Certainly. I have acted as expert witness in a number 12 of matters in adjudication, arbitration and also 13 litigation in relation to delay and quantum matters, on 14 a number of different and disparate type of projects, 15 construction, engineering and building and civil 16 engineering as well projects. 17 Q. And the delay analysis work that you did on the tram 18 project, was that broadly consistent with the work you'd 19 done in the past? 20 A. Yes, indeed. 21 Q. Now, in 2009 and 2010, you and your colleague, 22 Mr McAlister, at Acutus, gave consultancy advice to tie 23 in relation to delay on the tram project; is that 24 correct? 25 A. That's correct. 121 1 Q. We heard from Mr McAlister yesterday that in relation to 2 delay on the Infraco contract, he did the bulk of the 3 analysis work on that, but that you did some of it too; 4 is that correct? 5 A. That's correct. 6 Q. Could you have document CEC00330652, please. 7 We see here that this is a report entitled "Report 8 on investigations into delays incurred to certain 9 elements of the Infraco Works in relation to the 10 Edinburgh Tram Project", and that it was prepared by you 11 with a John Hughes. It's dated 25 June 2010. Do we see 12 that? 13 A. Yes, I can. 14 Q. We also see on the cover that the report was prepared 15 under the instruction and direction of Susan Clark, the 16 Deputy Project Director of tie; is that correct? 17 A. That's correct. 18 Q. Can I just ask, Mr Burt, did you at any time have 19 contact with or provide advice to the City of Edinburgh 20 Council? 21 A. No. It was always through tie. 22 Q. Now, in overview, what was the scope of this report? 23 A. We were asked to consider the delays on the Infraco 24 contract, and one of the answers to the questions that 25 I have in front of me kind of sets out the scope of the 122 1 remit. So if I may, I'll just paraphrase that, if 2 that's okay. 3 We were asked to have a look at, as far as possible, 4 the key matters which had caused or were causing delay 5 to the elements under investigation, to identify areas 6 of concurrent delay, and just how significant those 7 particular areas were; and to express our current 8 opinion on the extent of tie's liability in respect of 9 delay to each element of the works. 10 Q. Thank you. If we could turn, please, to page 7 of that 11 report. Sorry, it's the report which is CEC00330652, 12 paragraph 1.2.1. I'll just read that: 13 "On 3 March 2010 Acutus provided an initial view on 14 potential tie liability for delay to the Infraco Works ... 15 A subsequent meeting was held on 10 March 2010 between 16 tie and Acutus to discuss those initial conclusions. At 17 that meeting it was agreed that a further process of 18 investigation would be undertaken by Acutus. Those 19 investigations were to focus on certain 'prioritised' 20 elements of the Infraco Works which were jointly 21 identified as being likely to be critical to overall 22 progress and completion. 27 'elements' were selected 23 out of a total of 80 sections/areas which together form 24 the Infraco Works." 25 Can you just explain why, after the first report 123 1 you'd given, it had been decided that further 2 investigation was needed? 3 A. The -- the report I think you are referring to is 4 3 March 2010, which was actually just a very brief 5 email, and therefore having carried out that very 6 initial and brief exercise, it was agreed that further 7 forensic investigation should be carried out. 8 Q. You explained in that paragraph of your report that the 9 investigation was to focus on certain work areas. Can 10 you just explain the basis on which they were chosen? 11 A. Yes. We would have reviewed the different work areas 12 across the project with tie's project managers and the 13 Project Director, and also Susan Clark. To try and 14 understand, as best we could, the most important areas 15 that were problematic and causing difficulty, and 16 perceived to be causing delay. 17 So we identified 27 elements from the initial list, 18 and focused the investigations on those 27, although it 19 ended up as 26. 20 Q. Thank you. 21 So the 27 areas that were selected, were these all 22 of the areas that at that time were subject to delays? 23 A. No, not at all. They were just perceived to be the most 24 important, and the most significant in terms of delay. 25 Q. You referred there to 27 elements out of a total of 80. 124 1 Just on the simple basis of arithmetic there, is it fair 2 to view your analysis as relating to about one-third of 3 the project? 4 A. Yes, it is, albeit that we tried to identify what were 5 the most important ones. 6 Q. So far as you knew, were there any areas that were of 7 importance to delay on the project that were not covered 8 by your work? 9 A. No. No, because we were careful with the project 10 managers to try and identify the most significant ones. 11 Q. Yesterday we looked at a report that your colleague, 12 Mr McAlister, had done, which in part described some 13 work that Acutus had done with tie in collecting 14 evidence of delay. 15 If we could just bring that up, please, the document 16 reference is CEC00583955. If we could go to page 34 of 17 that report, please, I'm just going to read out parts of 18 this, Mr Burt, and then I'll ask you a question at the 19 end. 20 7.2.2: 21 "In September 2009 tie directed Acutus to assist its 22 project team in the execution of a delay attribution 23 exercise ..." 24 In 7.2.3: 25 "Acutus proposed and agreed with tie the format of 125 1 this exercise. It involved collating all relevant 2 information and evidence from tie's various systems and 3 records and grouping it in an orderly manner set against 4 a time-line. A Gantt chart schedule was created for each 5 principal element of the Infraco Works." 6 In 7.2.4: 7 "There are currently 80 of these charts to cover the 8 scope of the Infraco infrastructure works. Acutus 9 prepared the first draft of each of these and then 10 passed them to tie for the addition of more detailed 11 information, allocation of liability, and sense 12 checking." 13 Then 7.2.5: 14 "When each schedule has been fully populated and 15 sense checked, it will be possible to examine the full 16 data set for that particular element and; filter out the 17 minutiae; isolate delaying factors that have been 18 subsumed by other matters; and identify where dominant 19 cause and criticality actually lie." 20 Then just over the page, please, to 7.2.6: 21 "At the end of 2009, Acutus had produced all 80 22 chart templates and passed these to tie. tie staff, 23 assisted by Acutus, had developed these further and 24 populated them with available data." 25 Now, that exercise that's described in these 126 1 paragraphs, were you involved in that? 2 A. Not that I recall. I believe Iain McAlister and 3 John Hughes would have worked on those particular 4 schedules at that time. 5 Q. Mr McAlister's recollection was he didn't do it, but it 6 might have been you. 7 A. Right. Okay. As far as I recall -- I do understand and 8 recall these concurrency charts being discussed, but 9 I don't think I got involved in the detail until a bit 10 later. 11 Q. Okay. 12 A. I could check my diary records to find out, but I don't 13 think I was involved at that stage. 14 Q. I think you mentioned a third colleague in your answer. 15 Was it Mr Hughes? 16 A. John Hughes, yes. 17 Q. Is it possible that Mr Hughes was the one who was 18 responsible for that exercise? 19 A. He would probably be responsible for the detail. He 20 would be under direction of either Mr McAlister or 21 myself. So either Mr McAlister or myself would have 22 directed that exercise. 23 Q. Were you familiar with the exercise that was described 24 there? 25 A. Yes. I was familiar with the term "concurrency charts" 127 1 and the broad content of what that would include. 2 Q. In these passages that we've just read, there was 3 reference to 80 of these charts being prepared. Does 4 that figure of 80 correlate to the 80 areas that you 5 referred to in your report that we looked at a moment 6 ago? 7 A. I would expect so, yes. 8 Q. So should we understand from that that there was one 9 chart for each of the 27 areas that you studied for your 10 report? 11 A. Yes. 12 Q. As a basis for the delay analysis that you carried out 13 in your report, how complete and helpful was the 14 information that tie had gathered? 15 A. The information at the time, early 2010 through to 16 June 2010, was still at that point incomplete. I think 17 that's probably apparent from the report of 18 25 June 2010. There was a lot of information that was 19 not available at that time, and therefore we used 20 whatever information we could, but there was comments in 21 the report to explain that we hadn't had an opportunity 22 to corroborate the information or in fact to tie up 23 loose ends where there was a gap in the information. 24 Q. Were you concerned about the quality and quantity of 25 information that was made available to you at that time? 128 1 A. Concerned would be perhaps too strong a phrase, but it 2 was something that we had to note that we were working 3 with a limited set of data and the report actually that 4 we produced in June 2010 went into detail as far as 5 recommendations for bettering the information that might 6 be available if further exercises were carried out. 7 Q. We will come to look at those provisions a bit later on. 8 If we go back a page in the report that's on screen, 9 please, to paragraph 7.2.5, what was said there about 10 the expected outcome of this exercise of gathering 11 evidence is that once the schedule has been fully 12 populated and sense checked, it will be possible to 13 examine the full data set for that particular element, 14 filter out the minutiae, isolate delaying factors that 15 have been subsumed by other matters, and identify where 16 dominant cause and criticality actually lie. 17 By the time of your report in 2010, to what extent 18 had that objective been achieved in the evidence that 19 had been gathered? 20 A. It certainly wasn't fully populated and fully sense 21 checked. As you will be able to tell from the contents 22 of the June 2010 report, we were given sets of -- or 23 data and discussed a lot of detail with the tie project 24 managers, but no, there was not a full set of data 25 available by June 2010. 129 1 Q. If we could return then to your report, which was 2 CEC00330652. We're on page 7. Paragraph 1.2.3. It 3 reads: 4 "Each element was given a priority level code 5 depending on the then perceived level of importance in 6 respect of progress and delay to the relevant Sections 7 and Sectional Completion Dates. Those prioritised 8 elements are set out in the table below." 9 Now, we can see in that part of the table, which 10 actually carries on into the next page, these are all 11 priority level 1, and some of the others are priority 12 level 2. 13 Can you just explain a little bit more about how 14 that priority level was chosen, please? 15 A. Yes. Again, it would be with -- through discussion with 16 the tie project managers in particular as to the areas 17 of the works that were falling behind in progress more 18 than others. So priority 1 would be further in delay 19 than priority 2 areas would be, and therefore we 20 initially concentrated on the priority 1s, and I think 21 we did what -- the other priority 2s with the exception 22 of one. 23 Q. So was this essentially based on tie's own impressions 24 of where the critical delays were occurring? 25 A. It would be a combination of tie's impressions of where 130 1 the critical delays were occurring, but also there would 2 be input from -- internally in Acutus as well, 3 particularly, probably, I would expect, Iain McAlister, 4 as far as which areas to focus on. The on-street 5 sections were particularly problematic. And so there 6 was a lot of focus on those. 7 Q. If we can, would you please have this page of the 8 report, together with the next page up on screen 9 together, just so we can see the whole table. 10 You mentioned a moment ago that the on-street 11 sections were particularly problematic. If we just run 12 through that list in the table, do we see there that all 13 of the intermediate sections, beginning with 1, are they 14 essentially part of the on-street section? 15 A. Yes. Yes. 1a, b and c. 16 Q. On the following page, all of the sections beginning 17 with a 5, are those all the off-street section? 18 A. Yes. 19 Q. Is it correct that in relation to the off-street 20 section, the problematic areas were in large part, if 21 not entirely, structures? 22 A. Yes. Yes, they would be. 23 Q. If we can just highlight the -- sorry, stick to the page 24 that's on the right, please, and look at 25 paragraph 1.2.4, just reading that: 131 1 "The main objectives of this exercise were to 2 identify, as far as possible within the time and from 3 the records available: 4 (a) the key matters which had caused or were 5 causing delay to the elements under investigation, 6 including delay to commencement, progress and projected 7 completion; 8 (b) to identify areas of concurrent delay and 9 express a view on the significance of same; 10 (c) to express our current opinion on the extent of 11 tie liability in respect of delay to each element and 12 from those elements the likely liability in respect of 13 the sectional completion dates; and 14 (d) to identify any areas of further investigation 15 (including possible audits of Infraco's files) which may 16 be required." 17 I think that description is consistent with the 18 explanation that you gave us just a moment ago. 19 Mr McAlister explained yesterday that his work in 20 analysing delay was typically done in response to 21 extension of time claims that the consortium had made, 22 and that to some extent the scope of his work was 23 dictated by the scope of the claim that had been made. 24 Your report was not responding to any particular 25 claim; is that correct? 132 1 A. Correct. 2 Q. And the impression one gets is that it was intended to 3 form a more holistic view of the factors causing delay 4 across the whole of the project. Is that a fair 5 summary? 6 A. It is, yes. 7 Q. But nonetheless, the report would only be a snapshot of 8 delay as at its date; is that correct? 9 A. Correct. 10 Q. You refer in that paragraph that is still up on screen, 11 1.2.4, to reaching a view as far as possible within the 12 time and from the records available. 13 I think you've already addressed the question of the 14 limitations on the records at the time. But to what 15 extent was time a constraint on your work? 16 A. We were asked to respond to prepare an initial view, and 17 an estimate, effectively, rather than carrying out 18 a fully detailed forensic exercise. 19 It was to inform tie as to areas of liability. So 20 it wasn't an instruction to carry out a fully forensic 21 detailed analysis of even the 27 areas. It was to 22 get -- an overview is perhaps too strong a word, but it 23 was just endeavouring to understand where the key 24 problem areas were, and what our initial thoughts and 25 estimates were in respect of those areas. 133 1 Q. Were you subject to a time limit that was tighter than 2 you would have preferred? 3 A. For a fully detailed forensic analysis, absolutely. But 4 that was not the terms of the instruction, and therefore 5 we did what we could in the timescale that we were 6 looking at. 7 So yes, it wasn't -- it wasn't ever supposed to be 8 a fully detailed forensic analysis. 9 Q. Thank you. 10 In subparagraph (d) of that passage, there's 11 a reference to "further investigation (including 12 possible audits of Infraco's files)". Why was that 13 suggested? 14 A. There -- as we went through the investigations, there 15 was concern about the time taken for design to be 16 finalised, and that information effectively rested in 17 the hands of Infraco as opposed -- other than dates, 18 knowing when design packages were issued. We could see 19 that there were lapses in time and delays in packages 20 being issued, or then being subsequently revised. So we 21 could identify time periods, but we couldn't identify 22 the reason for either the slippage for the initial work 23 package, issued for construction package detail, or 24 alternatively we couldn't establish the cause of 25 subsequent revisions. 134 1 So that -- the main way in which to obtain that 2 information would be through audit of Infraco files. 3 Q. Thank you. Just one more general point. You explained 4 that this report wasn't intended to be a fully detailed 5 analysis of everything, and it was more of an overview 6 to give tie an indication of the reasons for delay. 7 Just to put that in context, I think you've 8 explained in your written answers that this was a report 9 which had itself required around 800 hours of work; is 10 that correct? 11 A. Yes, but it was about 400 hours of my time and I think 12 about the same for my colleague, John Hughes. That's 13 equivalent to about ten weeks of time, and therefore 14 about a day and a half per area that was identified. 15 So it was a quick -- relatively quick exercise. 16 Q. It's maybe an unfair question, but if you'd followed it 17 through to the level of the detailed analysis, what 18 would those 800 hours have become? 19 A. Many, many more. It took the 800 hours or 10 weeks for 20 two people to identify initial -- let's say initial 21 dates and information and questions that arose that were 22 not bottomed out. To undertake a fully detailed 23 forensic exercise, it would depend what you find in that 24 that is very difficult to estimate, but I could easily 25 see a year, even just for the 27 if it had to be done 135 1 properly, particularly if it was expert witness level 2 detail, where we would have to be able to talk to all of 3 the detail. 4 It would be a very lengthy process. 5 Q. Thank you. 6 CHAIR OF THE INQUIRY: When you say at least a year, are you 7 still talking about two people doing it for a year, 8 or ... 9 A. Again, that would depend on what we found and how much 10 investigation had to be done. You could put more 11 resources on it and perhaps shorten the exercise, but it 12 really does depend. It's often very difficult to gauge, 13 not knowing how much information in terms of 14 documentation that you have to go through. So again, 15 it's a very broad estimate. It could be a year for two 16 or three people or it could be nine months for four 17 people. It really is very difficult to gauge until you 18 get into the detail. 19 MR MCCLELLAND: Would it be fair to say that if that 20 exercise was carried out while the project was under 21 way, the factors influencing delay would themselves be 22 changing as you progress with your work? 23 A. Absolutely. Critical paths, critical activities will 24 change as the project moves on, and if another event 25 arises, such that the critical path changes and has to 136 1 be investigated, and the impact has to be investigated, 2 then yes, it is a very fluid exercise. Often we'll be 3 doing retrospective exercises rather than something on 4 a project which is live. Not necessarily unusual to be 5 working in a live project, but sometimes it's cleaner if 6 it's done when the project is finished and, you know, 7 there's nothing else is moving, if you like, in terms of 8 data and activities. 9 Q. It may be helpful, before we look in detail at some 10 aspects of your report, just to get an idea of the 11 conclusions that you'd reached. 12 If we could go to page 4, please. This is your 13 executive summary. If we could just look at 14 paragraph 2, please. I'll read that: 15 "The investigations carried out to date indicate 16 that both parties to the Infraco Contract bear some 17 responsibility for the delays incurred. There is also 18 the potential the SDS has contributed to those delays." 19 Just pausing there, the reference to SDS, does that 20 suggest that you had identified delays in the production 21 of design? 22 A. Yes, many of the appendices would indicate delays to the 23 first issue of IFC packages for certain structures and 24 then indeed later revisions. Therefore we would -- as 25 I explained earlier, we could identify time periods of 137 1 slippage. However, we couldn't necessarily identify the 2 cause of that slippage. 3 Q. You referred there to IFC. By that, just for the 4 record, do you mean issued for construction drawings? 5 A. Yes. 6 Q. Then if you look down at paragraph 5 in your executive 7 summary, reading from that: 8 "For each of the Sectional Completion Dates we note 9 the following in respect of our current estimate of 10 liability for delay." 11 Then there's a table. Could I ask you, please, 12 Mr Burt, just to give us a brief explanation of the 13 table? 14 A. Yes. There are six columns, all numbered, and in the 15 first column we have Sectional Completion Date, Sections 16 A, B, C and D. There is then an overall projected delay 17 for each of those sections; Sections A and B are both 18 listed as 57 weeks, sections C and D are 61 weeks. 19 We then, in columns 3, 4 and 5, referred to where we 20 thought the estimated tie culpability in both the lower 21 and upper limit might lie, along with column 5, which 22 was an estimate of Infraco culpability. 23 Q. Thank you. So we see from the figures there that in 24 relation to work Sections A and B, your view was that 25 there was shared culpability for the delay, with a range 138 1 for tie that's slightly longer than the range for 2 Infraco; is that correct? 3 A. Correct. 4 Q. But in relation to work Sections C and D, your view was 5 that all of the delay that had been identified was tie's 6 responsibility? 7 A. At section level, that was the finding at that point, 8 yes. 9 Q. Can I just be clear that by using the word "culpable", 10 do you mean that it was your view that under the 11 provisions of the Infraco contract, tie bore the risk of 12 that particular delay? 13 A. Yes. 14 Q. Could we look briefly, please, over the page. So that's 15 page 5, paragraph 7: 16 "tie culpability for delays to the Section C date is 17 in all probability estimated to be the full period of 18 the projected delay of 61 weeks forecast by the most 19 recent mitigation exercise." 20 You refer there to the most recent mitigation 21 exercise. What was that? 22 A. It was an exercise that my colleague, Mr McAlister, had 23 been carrying out in terms of or in relation to the 24 Infraco's most recent programme submission, which 25 I believe was revision 3, and issue 3, I think it was, 139 1 where he had taken a programme and worked through the 2 programme to try and establish whether areas of 3 mitigation could be achieved, such that the completion 4 date would be brought back and therefore lessening the 5 period of projected delay to completion. 6 Q. That proposed mitigation, was that something that had 7 been agreed with the consortium or was it unagreed? 8 A. It was unagreed. The comments on the previous page in 9 the report under the table that we were referring to 10 earlier, and also paragraphs within the report, make it 11 quite clear that such, particularly acceleration 12 measures, would have to be agreed with Infraco. The 13 objective was mainly to see what could be done subject 14 obviously to agreement between the parties. 15 Q. I think it's fair to acknowledge that the extent of 16 Infraco's obligation to mitigate delay on the one hand 17 or accelerate to avoid delay on the other, that was 18 a matter of contention between the parties? 19 A. Yes, it was, and in actual fact during the period that 20 this report was drafted, and issued, there was the MUDFA 21 Revision 8 adjudication which was ongoing with Mr Howie 22 as the adjudicator, and those issues did come up. 23 Q. I think it's also fair to say that in broad terms, 24 Mr Howie preferred the Infraco's approach to mitigation 25 over the one that was being proposed by tie? 140 1 A. Yes. Certainly -- I wasn't too heavily involved in that 2 particular adjudication. I understand that he did 3 prefer the JV's position in terms of acceleration, but 4 he also found that the JV's analysis was based on 5 unmitigated delays, and therefore that was one of the 6 reasons why he found that in sections -- I think it's B, 7 C and D, there was no award of extension of time. 8 Q. It may not matter greatly, but was a reason for 9 Mr Howie's decision in relation to Sections B, C and D 10 his view about whether a designated work area was the 11 same as an intermediate section? 12 A. Yes, it came down to the argument about mitigation as 13 far as I recall. 14 Q. Now, just reading on from paragraph 7: 15 "This assumes that the Infraco's interpretation of 16 how extension of time for Notified Departures (late 17 completion of MUDFA works) is not supported by the 18 Adjudicator in the 'MUDFA Revision 8 Estimate' dispute 19 decision. If it is, tie's potential liability for delay 20 could be much higher (potentially circa 100 weeks). 21 This is also likely to give rise to a tie liability for 22 project level prolongation costs." 23 The point you are making there about the MUDFA 8 24 adjudication, can you just clarify what your point is 25 there? 141 1 A. I think it's in relation to the point we were discussing 2 earlier, in relation to mitigation and acceleration, 3 where if the adjudicator had found completely in favour 4 of the JV, then their method of analysis and their 5 method of programming analysis, including in relation to 6 the designated work areas, would have generated a very 7 significant period of extension of time that would be 8 possible for Infraco to receive. 9 One clarification is that the time periods of the 10 MUDFA Rev 8 adjudication as far as MUDFA delays was 11 concerned, that was in relation to MUDFA data as at -- 12 I think it was March 2009, whereas the analysis in the 13 particular report we're looking at at the moment was 14 around April 2010. So the time periods in Mr Howie's 15 adjudication were not necessarily the same as covered by 16 the current review. 17 Q. Put short, and probably at the highest level, the 18 difference of view between the parties about the 19 appropriate method of analysis of delay under the 20 Infraco contract had a significant impact on the extent 21 to which tie would be liable for delay or not. 22 A. Yes, indeed. Certainly in relation to MUDFA Rev 8 23 analysis, which I think was INTC 429. By the time 24 Infraco re-evaluated their assessment, which I think was 25 INTC 536, they had assessed, I think, 66 weeks of delay 142 1 down to MUDFA delays. 2 So it would appear, certainly my understanding is 3 that the method of analysis that they adopted subsequent 4 to Mr Howie's decision was different than the method of 5 analysis they adopted in the MUDFA Rev 8 adjudication. 6 Q. Thank you. If we can just read down to paragraph 9, 7 please: 8 "In this regard, at intermediate and sub-section level in 9 particular, there is considerable evidence of Infraco 10 culpability for delay in the various elements within 11 Sections 2, 5 and 7. This is highlighted within 12 'Appendix (i) attached. It is stressed that whilst this 13 may not translate into a disallowable period of 14 extension of time for the Section C date, it does/should 15 preclude both Infraco and its sub-contractors from an 16 entitlement to recovery of the prolongation costs 17 incurred during those periods of culpable delay." 18 Just in broad terms, what in your view was the 19 reason why the consortium were responsible for delay? 20 A. That would depend on the specific area that we were 21 looking at, the various 26 areas that were the subject 22 of the report. Issues such as lack of progress or late 23 start, slow progress on particular structures, issues 24 like that, while maybe not affecting the Section C 25 completion date, had the potential to affect the 143 1 prolongation cost, if you like, for specific structures, 2 particularly in relation to where Infraco would 3 subcontract the work out to other contractors. Where 4 Infraco may have been responsible or liable for some of 5 the delay to those structures, then the thought was that 6 that would not entitle them to recover, let's say, 7 structure specific prolongation costs in those terms. 8 Q. You referred earlier to a shortage of information in 9 relation to delay in particular -- in relation to 10 design. 11 When you express a view in this paragraph that there 12 was Infraco culpability for delay, was that something 13 which had been bottomed out or was that something in 14 relation to which further information was still needed? 15 A. I think in most areas, and probably all of the 26 16 structures, there was further information that would be 17 required before firming up on any of the periods of 18 delay that were estimated at that time, and that was the 19 terminology that was used. It was an initial exercise 20 with estimated periods. 21 Q. Okay. We've already heard from you about the lack of 22 information in relation to certain design issues. If we 23 could have a look, please, at your written answers, 24 which are at TRI00000146. If we look first of all at 25 page 5. 144 1 In answer to question 9, if we could just go to the 2 second paragraph there, and about five lines down, 3 there's a sentence that begins "The contractual 4 responsibility". Do you have that? 5 A. Yes. 6 Q. "The contractual responsibility for those events also 7 had to be understood. By way of example, there were 8 many factors which had to be considered in analysing 9 each of the areas involved in the report dated 10 25 June 2010." 11 That's the one we've just been looking at: 12 "Issues arising included questions as to the reasons 13 for delay in construction drawing issue which we found 14 difficult to establish; increased programme durations 15 included in the Infraco programmes which were not 16 explained; subcontractor procurement timescales; design 17 check processes and the like. All of those factors 18 contributed to the factual matrix for each area and had 19 the potential to influence responsibility for, and the 20 period of, delay to the areas under consideration." 21 We see there the point that you made about lack of 22 information in relation to certain design issues. 23 A. Yes. 24 Q. Then just reading down in your answer to question 10: 25 "Clearly the MUDFA delays in various areas were 145 1 significant to the project overall and would have caused 2 significant periods of delay. However, the question of 3 the actual measure of that delay remained a significant 4 difference between the parties. Delays to design issue 5 (IFC) also appeared to be a material factor." 6 Then again, if we could look at page 28, please, and 7 your answer to question 81: 8 "A number of factors contributed to this exercise 9 not reaching definitive conclusions." 10 I should just say, by "this exercise", I think 11 that's a reference to the report we have just been 12 looking at: 13 "Those included (i) it was known that further 14 information was required in relation to document 15 (design) issues dates and the reasons for the delay in 16 issue; (ii) the time within which the exercise was to be 17 carried out meant that information provided to us had to 18 be taken at face value without being fully verified; 19 (iii) schedules for the IFC/INTC processes had to be 20 developed further by tie personnel; (iv) audits were 21 required to establish the cause of various matters; (v) 22 contractual matters required clarification." 23 Now, I think actually all of that is essentially 24 consistent with the explanation that you've been giving 25 us earlier. 146 1 How significant a factor affecting your analysis of 2 delay was the absence of information about designs? 3 A. At that stage it was important because we needed to 4 understand why there had been such a delay in a number 5 of instances to the first IFC and then subsequent IFCs. 6 To a large extent it would have run concurrently 7 with a lot of the MUDFA delays in any event, but it was 8 an area of particular concern, both when we were 9 reviewing the dates that -- when we were comparing 10 planned with actual dates against construction 11 requirements and so on, but also it was explained to us 12 by tie project managers that there was in their mind 13 something amiss with the design process. 14 So it was a significant question, one that we just 15 can't answer. So yes, it was -- it was quite 16 significant. 17 Q. Thank you. 18 I think in your report, if we could just look at 19 your report again, please, which is CEC00330652, at 20 page 4, we see, I think, that you made recommendations 21 for further investigations. 22 If we just look at paragraph 3 there, please: 23 "These investigations have identified a number of 24 key areas of further investigation and/or audit which 25 are required in order to more accurately establish the 147 1 precise measure of each party's culpability. As 2 a consequence, a number of recommendations have been 3 made within the main body of this report in relation to 4 matters such as (i) the reasons for delays to IFC 5 package issue dates (both original and revised 6 packages); (ii) the dates when the Infraco Design was 7 issued to SDS; (iii) the INTC process; and (iv) Infraco 8 sub-contractor procurement. Items (i) and (ii) above are 9 key areas of uncertainty where delays have occurred but 10 the reasons for same are uncertain." 11 I think in relation to point (i), you've covered 12 that, but in relation to point (ii), which was the dates 13 when the Infraco design was issued to SDS, can you just 14 explain that, please? 15 A. Yes. The Infraco would have a design input into the 16 project and into the works, as well as SDS, and the two 17 would have to interact at certain points and one 18 possible reason for IFCs being late or changed is 19 something in relation to the Infraco design. 20 I say something because we didn't have the detail of 21 why things were taking longer. So it was a line of 22 enquiries that we thought was necessary, but we didn't 23 have that information, and it may have had an influence 24 on IFC issues. 25 Q. Did you have any idea of the broad nature of BSC's input 148 1 into the design being done by SDS, what sort of matters 2 it might cover? 3 A. SDS were obviously the system design service provider, 4 with BSC, I believe, being responsible for the civils 5 design. And therefore there would be an interaction 6 between the two such that I don't think we would be in 7 a position or I -- SDS would be in a position to 8 finalise their design until they knew what the civils 9 design was as well, and therefore the two have close 10 interaction. 11 Q. Sorry, did you say civils design or service? 12 A. Civils design. 13 Q. Civils design? 14 A. Yes. 15 Q. I think we'd heard from Mr McAlister yesterday that 16 civils design was being done by SDS, but that the 17 Infraco might have been doing the design for the 18 electrical and mechanical part. Does that seem correct? 19 A. That possibly is correct, yes. 20 Q. If you don't know, I won't ask you to speculate about 21 it. 22 If we could look, please, at page 11 of your report. 23 Now, in this section, Mr Burt, you make some 24 recommendations for further investigations. If we could 25 just look quickly at 2.1.1: 149 1 "The investigations and analysis focused on the 2 following key headings which were highlighted as being 3 consistently significant in terms of progress and 4 delays. Those headings are: 5 A. The "Issue for Construction drawings" ... 6 B. The "Infraco Notice of tie Change" process. 7 C. The progress and completion of the MUDFA 8 works ..." 9 And then D, E and F, you list some other matters. 10 Of that list, which do you regard as being the most 11 significant to delay? 12 A. Certainly in relation to section level, and particularly 13 Sections C and D, the most significant at that point in 14 time would be the MUDFA works and utility works. 15 Q. If we look down at the bottom of the page, at 2.2, where 16 the heading is "IFC process", I'll just read 2.2.1: 17 "A key issue identified in a number of instances was 18 the availability of design such that the works could 19 commence or progress could be maintained. Matters such 20 as late release of the IFC by the date identified in the 21 Programme or a material breach by SDS in performance of 22 its obligations are Compensation Events under the 23 Infraco Contract. Those matters may ["may" being 24 underlined] give Infraco an entitlement to additional 25 time and payment but only where they have been 150 1 established as the direct cause of delay to the 2 Works ..." 3 Reading on: 4 "It is therefore important to identify and 5 establish, as far as possible, whether any such 6 Compensation Events were "... the direct cause of delay 7 in achievement of the issue of a Certificate of 8 Sectional Completion ..."." 9 Then 2.2.2: 10 "In addition, questions surrounding Infraco's 11 management (or otherwise) of SDS and the IFC process 12 generally were also raised by tie during the current 13 exercise. That, together with the provisions of 14 Clause 19.19 ..." 15 Which, as you note in footnote 6, limits tie's 16 liability for compensation events in certain 17 circumstances related to failures on the part of 18 Infraco: 19 "tie's liability for delays in respect of tie 20 Changes and third party approval delays render it 21 essential that the 'cause' of any delay to the IFCs be 22 established (as distinct from merely identifying that 23 a delay in IFC issue has occurred)." 24 There is one more passage that I'll read out, 25 Mr Burt, and then I'll have some questions for you. At 151 1 2.2.4: 2 "It is apparent however, that certain further 3 information is required in order to establish, with 4 a greater degree of certainty, the culpability for any 5 such delay in IFC issue. That further information is 6 not presently available, as further explained below. 7 (a) 'Cause' of delays to Initial IFC: the "SDS 8 Approvals tracker" monitors only the issue of, and delays 9 in respect of, the first IFC for each 'package'. It does 10 not, however, specifically identify the cause of that 11 delay. Potential 'cause' of delay may include one or 12 more of the following: 13 i. late issue by SDS (in its simplest form 14 a compensation event under 65(t) - which may in turn 15 permit the application of clause 65.12.2); 16 ii. a material breach by SDS (again in its 17 simplest form a compensation event under 65(u) - which 18 may in turn permit the application of clause 65.13); 19 iii. a failure of Infraco to provide the Infraco 20 Design to SDS in accordance with the Consents Programme 21 and Schedule Part 14 (clause 19.19 refers); 22 iv. a tie Change; 23 v. a failure of Infraco in respect of its 24 management of SDS or another breach by Infraco (eg 25 failure to properly manage the CEC/Network Rail 152 1 interface); and/or 2 vi. a requirement of CEC/NR for which tie will 3 bear responsibility. 4 No doubt there are a number of other potential 5 causes of delay not identified above. However, until 6 further details are available it is not possible (in the 7 majority of instances) to establish with any certainty 8 the cause of and culpability for delay in the issue of 9 the IFCs." 10 Now, if we just pause there, this appears to be an 11 attempt to summarise, at least some of the Infraco 12 contract provisions relevant when determining which 13 party carried the risk of delay in the issue of 14 construction drawings. Is that correct? 15 A. Correct. 16 Q. What was your understanding of the manner in which the 17 Infraco contract allocated responsibility for design 18 delay between the parties? 19 A. I think broadly, if SDS was in delay of itself, then 20 that would be a tie responsibility. If, however, there 21 were issues in relation to Infraco affecting the time 22 periods for the issue of that design, then Infraco may 23 have liability in that respect for the period that they 24 caused a particular delay. 25 Q. Did the fact that there was a range of potentially 153 1 relevant contract provisions complicate your task in 2 analysing delay? 3 A. What we did there was identify what we thought were the 4 significant ones, but all we knew was that IFC packages 5 were late or revised. We had no information to tell us 6 what the cause of that was. Therefore, it was something 7 that we couldn't allocate with any certainty. 8 Q. Put it this way. Did that range of different 9 contractual provisions which were of potential relevance 10 to allocating responsibility for design delay affect the 11 amount of information that you needed or the detail of 12 the information that you needed if you were to do that 13 properly? 14 A. I expect, yes, it would. But initially we wanted to 15 understand the reasons for the time period -- the time 16 slippage in the IFC issue. 17 Q. Yes. So that's perhaps step one: understand why the 18 delay has happened and then worry about who bears the 19 risk of it? 20 A. Well, then try and understand who would bear the risk. 21 Q. If we compare it to the other main factor in project 22 delay, being the delay in the utilities works, and when 23 it came to assessing the impact on the Infraco programme 24 of these two different types of delay, was one or other 25 of them easier to analyse than the other? 154 1 A. Do you mean between MUDFA and design? 2 Q. Yes, utilities on the one hand and design on the other. 3 A. Yes, as far as I understand it, MUDFA is the 4 responsibility of tie, as far as we understood it at the 5 time, and therefore where MUDFA delays were causing or 6 utilities delays were causing the delay, that would be 7 clear -- more clearly a tie issue. 8 However, until we understood the cause of the 9 late -- all we saw was IFC packages being late, not 10 necessarily the cause. 11 Q. Thank you. 12 Compared with other projects of which you've 13 analysed delay, were the provisions of the Infraco 14 contract which allocated responsibility for delay in the 15 design any more or less complicated than you would 16 normally see? 17 A. Perhaps slightly more complicated just because the 18 employer bore some risk, it appeared, for the 19 performance of a designer who had been already novated 20 to the contractor. So I think that does complicate it 21 more than ordinarily would be the case with standard 22 design and build contracts. 23 Q. In the passage that we have just read, which identifies 24 contract provisions relevant to design delay, there 25 wasn't, I don't think, any reference to Schedule Part 4 155 1 of the Infraco contract. Were you familiar with that 2 schedule and in particular the list of Pricing 3 Assumptions it contained? 4 A. Yes, I was aware of it, yes. 5 Q. Were you familiar with the concept of a Notified 6 Departure that if any of those Pricing Assumptions 7 proved to be false, the Infraco might be entitled to 8 claim an extension of time or additional cost? 9 A. Yes. 10 Q. Now, some of the Pricing Assumptions related to the 11 design programme; is that correct? 12 A. From recollection, I would -- I think so, but I would 13 have to review the schedule again. 14 Q. It's not intended to be a memory test, Mr Burt, so we'll 15 bring up Schedule Part 4, which is USB00000032. If we 16 just go to page 6 of that, please. This is in the 17 middle of the list of Pricing Assumptions. We have 18 Pricing Assumption 2 reads: 19 "Design delivery by the SDS Provider has been 20 aligned with the Infraco construction delivery programme 21 as set out in Schedule Part 15." 22 And Pricing Assumption 4: 23 "That the Design Delivery Programme as defined in 24 SDS Agreement is the same as the programme set out in 25 Schedule Part 15." 156 1 If we just look briefly at clause 3.5, which is at 2 page 9: 3 "The Contract Price has been fixed on the basis of 4 inter alia the Base Case Assumptions noted herein. If 5 now or at any time the facts or circumstances differ in 6 any way from the Base Case Assumptions (or any part of 7 them) such Notified Departure will be deemed to be 8 a mandatory tie Change requiring a change to the 9 Employer's Requirements and/or the Infraco Proposals or 10 otherwise requiring the Infraco to take account of the 11 Notified Departure in the Contract Price and/or programme ..." 12 In your work analysing delay, when considering who 13 carried the risk of delay in the design, had you taken 14 account of these provisions? 15 A. I think we used a rather loose term in the list of 16 contract provisions to do with tie change, and I think 17 that would fall under that there. We were aware of 18 those provisions, but as far as responsibility for the 19 delay in issue of IFC packages, we were not able to 20 conclude in -- you know, culpability on the part of 21 either party because we weren't sure what the cause was. 22 Q. Just in relation to the Pricing Assumptions there about 23 the design programme, had you formed any view about the 24 extent to which they left any responsibility for delayed 25 design with the consortium? 157 1 A. There was a question, I don't think we landed on any 2 particular conclusion on it, as to whether if there was 3 a lack of management by Infraco in relation to SDS, 4 whether that would have been something that would not 5 have excused Infraco for any of those particular time 6 periods. But it was an area that had to be further 7 reviewed and certainly we wouldn't, without speaking to 8 tie's legal team, decide who was responsible. It would 9 be a matter for discussion. 10 Q. So you'd identified one aspect where the consortium 11 might retain or might be argued to retain responsibility 12 for delay in the design. Were there any others that you 13 had in mind? 14 A. Not that I can recall, unless -- one instance that we 15 talked about is obviously where perhaps Infraco were 16 slow to provide their design to SDS. That would 17 probably fall under the management of SDS. 18 But other than that, no. No -- I think that was the 19 extent of it. But again, it's -- I would need to 20 refresh my memory about all the -- 21 Q. You are referring there in the point you just made to 22 the input that the Infraco companies needed to have to 23 SDS to allow them to complete their design? 24 A. Yes. 25 Q. I think you said that this was a point which -- you 158 1 never reached the point of having to come to a concluded 2 view on any of this; is that correct? 3 A. We didn't have the data to even establish whether there 4 was delay on the part of Infraco providing their design 5 to SDS such that it caused the problem with the IFC 6 dates. The information wasn't there. We were just left 7 with questions. Time periods that had slipped and 8 questions as to what the reason for that slippage was. 9 Q. Yes. So I take it that it would follow from that answer 10 that this point about the extent to which the consortium 11 carried responsibility for delayed design was never 12 tested in any dispute resolution forum? 13 A. Certainly not to my knowledge. 14 Q. Bear with me just a moment, Mr Burt. (Pause) 15 Sorry about that, I managed to -- I was looking for 16 the paragraph reference in the wrong document, which 17 confused me. 18 If we could look at your report, please, which is 19 CEC00330652, at page 14, please. 20 At 2.3 the heading there is INTC "Process". Is that 21 a reference to the change procedure laid down in the 22 Infraco contract? 23 A. Yes, that's the intention. 24 Q. Was it thought that there was delay associated with that 25 process? 159 1 A. I think there was -- just it was an area for us to 2 review time periods and response periods in relation to 3 that INTC process. 4 My recollection -- I would need to go through each 5 of the individual appendices to see if there was any 6 issues that were raised in relation to that. 7 Q. The fact it's covered in your report suggests that it 8 was identified as an area of relevance to the question 9 of delay? 10 A. It was an area of investigation, yes. 11 Q. If we just read out from 2.3.1: 12 "A number of issues arise in respect of the INTC 13 process. We have summarised those issues below together 14 with notes on any interim assumptions made in respect of 15 same. 16 a) INTC Master List: Recommendation - tie may wish 17 to consider maintaining a central master INTC schedule 18 which monitors the various components of the INTC 19 process. That master list is likely to save time in the 20 future locating the relevant details surrounding 21 individual INTCs. 22 b) INTCs included in the current analysis: we have 23 relied on the tie project managers to highlight the key 24 INTCs which have affected commencement, progress and 25 delays to individual structures. A separate exercise is 160 1 also underway by the tie commercial team, where the 2 current INTC master list is being populated with the 3 relevant data. When complete, the master list will 4 facilitate identification of all INTC’s applicable to 5 specific individual areas or structures, thus permitting 6 a more comprehensive analysis to be undertaken. That 7 exercise however is not yet complete." 8 If we just go back to the previous page, where the 9 paragraph had referred to the various components of the 10 INTC process, and I think you list those in footnote 8. 11 I don't need to read them out, but you can see them for 12 yourself. 13 Can you recall how you had identified all of these 14 individual components about which information was 15 needed? 16 A. Sorry, can you just repeat the question? I didn't quite 17 catch. 18 Q. Do you see footnote 8 on that page? As I understand it, 19 that lists the various components of the INTC process in 20 relation to which you thought tie needed to gather 21 information. Is that correct? 22 A. Yes, correct. 23 Q. How had you identified each of those components? 24 A. We would have read the contract in relation to that 25 process. 161 1 Q. Yes. So I think perhaps anyone who had read the 2 contract could identify that these components were part 3 of the process? 4 A. Yes. 5 Q. Was it surprising to you that tie had not already at its 6 own initiative gathered that information together? 7 A. From memory, what they had was a brief INTC schedule 8 without necessarily all of the various components in. 9 What we would call a master list there, with columns for 10 the different stages. 11 So I think they had a master list, but without the 12 detail that we would normally collate if we were doing 13 that particular exercise. 14 CHAIR OF THE INQUIRY: Was it more like a tracker that they 15 had? They could follow where they were with each INTC 16 to see -- 17 A. That was the intention with the proposal at footnote 8. 18 From memory, there was a list with probably numbers and 19 just a description, but the reason for including the 20 footnote 8 would be that there wasn't then the various 21 components to show where they were, and time periods 22 between different actions and so on. So it was really 23 just to make a more comprehensive list of the various 24 stages that were involved in the INTC process. 25 CHAIR OF THE INQUIRY: Mr McClelland asked you if you were 162 1 surprised that they didn't have that already. Would 2 that not be a standard thing that you would expect? 3 A. It does depend on who was preparing the list. I'm 4 working on a project at the moment where we have the 5 same type of issue where some information is included in 6 a list of compensation events, but we would have 7 prepared it more comprehensively ourselves. So it's 8 something that -- it depends who is compiling the list. 9 There is no standard process, but it's just something 10 that we would recommend adopting. I wouldn't say that 11 there was a normal way to do it, but more comprehensive 12 for us, the better, and that's really what we have 13 recommended here in relation to IFCs as well as INTCs. 14 CHAIR OF THE INQUIRY: Generally, the more comprehensive the 15 records you keep, the easier it should be to deal with 16 those. 17 A. Absolutely. When we become involved in projects, then 18 that is something that we do emphasise with clients, 19 that the more records they have, the easier it is to 20 understand particularly retrospectively what has 21 happened. 22 CHAIR OF THE INQUIRY: Is this a convenient point? 23 MR MCCLELLAND: Yes. I'm happy to stop here if that's 24 convenient. 25 CHAIR OF THE INQUIRY: We will have a break for about 163 1 15 minutes for the shorthand writers. You can get a cup 2 of tea or coffee, and we will resume again at 3.30. 3 (3.15 pm) 4 (A short break) 5 (3.32 pm) 6 CHAIR OF THE INQUIRY: You're still under oath, Mr Burt. 7 Yes, Mr McClelland. 8 MR MCCLELLAND: Thank you, my Lord. 9 Could you go, please, to page 16 of your report. 10 The heading down at the bottom of that page, "MUDFA 11 and/or other utility works". I'm just going to read 12 that paragraph 2.4.1: 13 "Information regarding completion or projected 14 completion of MUDFA or other utility works was obtained 15 from two principal sources, being (i) information 16 obtained from tie project management personnel and (ii) 17 the marked-up photographs of the various sections 18 produced by tie at periodic intervals. 19 "Recommendation: that tie maintains a central 20 database of MUDFA/utility commencement/completion dates 21 (that information has proven difficult to extract)." 22 Can you explain what you meant by "difficult to 23 extract"? 24 A. Yes. Basically we were struggling to get accurate dates 25 of commencement and completion dates for utilities in 164 1 certain areas. 2 CHAIR OF THE INQUIRY: Was this another example of the 3 record-keeping by tie? 4 A. I would say so, yes. Yes. 5 CHAIR OF THE INQUIRY: Did you consider it to be adequate? 6 A. I think the fact that we found it difficult to get dates 7 readily and were using photographs would indicate that 8 it wasn't quite adequate. 9 MR MCCLELLAND: This is fairly basic level information, 10 isn't it? We're talking here about commencement and 11 completion dates of work. 12 A. Yes. Yes, it is. 13 Q. Do you agree with me that it's a fairly basic level 14 information? 15 A. Yes, it is basic level, yes. 16 Q. Your report was being written in mid-2010; is that 17 correct? 18 A. Yes, June 2010. Yes. 19 Q. So the project had been under way for two years by then, 20 and that there were issues around delay with the MUDFA 21 works had been well known for most of that period; do 22 you agree with that? 23 A. Yes. Yes, I do. 24 Q. Did it surprise you that information like that wasn't 25 more readily accessible from tie? 165 1 A. I expect it would have done at the time, and the fact 2 that we were suggesting that there was a central 3 database meant that there wasn't one, and therefore 4 extraction of information becomes a lot more difficult, 5 time-consuming and sometimes uncertain. 6 Q. You also provided tie with advice on claims made by 7 Carillion under the MUDFA contract; is that correct? 8 A. Correct. 9 Q. There was a shortage of information in relation to those 10 claims too; is that correct? 11 A. Yes, but different type of information. 12 Q. Okay. If you would just like to explain what the 13 information was that was lacking in those? 14 A. The claims that were put forward by Carillion were in 15 relation to effectively -- it was mainly disruption 16 costs that they were claiming in relation to utility 17 diversions. In order to substantiate a claim in 18 relation to disruption, I would expect to see labour and 19 plant returns, invoices and that sort of thing; and that 20 sort of information, to the level of detail required to 21 substantiate a disruption claim, is ordinarily held by 22 the contractor and not by the employer. Hence the 23 reason, I think, the absence of information in relation 24 to the Carillion disruption claims. 25 It's a different category of information. It's 166 1 certainly a different level, and not information that 2 the employer or their project managers or supervisors 3 would ordinarily hold, because they couldn't collate 4 that information. They actually would not have access 5 or the time to collate that. So it is a different class 6 or category of information. 7 Q. Thank you. 8 If we could look, please, at your written answers, 9 which are at TRI00000146, and page 13, please. Question 10 29. Just the first paragraph there: 11 "It is relevant to note in the first instance that 12 detailed record keeping is ordinarily a function of the 13 Contractor carrying out the relevant works. It would 14 therefore be expected that the Contractor when making 15 a claim for additional payment under the contract would 16 and should produce the appropriate records to 17 demonstrate its case." 18 That's point that you just made. Then there's 19 a sentence beginning "However": 20 "However, in instances where it is expected that 21 commercial/contractual disputes are likely to arise, 22 then we would always advise Employers to maintain as 23 detailed records as its resources permit. This is 24 simply a practical step to ensure that the Employer can 25 either verify or rebut contractor's claims as/when the 167 1 need arises." 2 You actually make the same comment later on at 3 page 24, if we could go there, please, at question 69. 4 We just see there, about halfway through that first 5 paragraph in your answer, we see the same answer, that 6 you would always advise employers to maintain detailed 7 records and so on. 8 Without intending any disrespect to the advice that 9 you gave, Mr Burt, that's simply common sense, isn't it? 10 A. It certainly is in claims situations, yes. 11 Q. Yet tie hadn't managed, in relation to the Infraco and 12 the MUDFA contracts, as we've just seen, to do that for 13 themselves? 14 A. Certainly in the instances that we found that we were 15 struggling to extract information, that would be the 16 case. 17 Q. If we look briefly at another document, which is 18 CEC01315172. This is the Operating Agreement between 19 City of Edinburgh Council and tie. If we can just go to 20 page 16, please. 21 We see there in paragraph 3 one of the services that 22 tie were to supply to the Council in relation to the 23 tram project, which is to: 24 "Provide efficient and effective project management 25 services for the Project including cost, financial 168 1 programme, risk, contract and change management." 2 So the point is that tie weren't simply the 3 employers under the Infraco contract. They were also 4 providing a project management service. 5 In your experience, to what extent do those 6 performing a professional project management role 7 require advice of the sort you gave to tie about what 8 records to keep, especially in relation to claims for 9 extension of time and associated costs? 10 A. My experience is that we generally will give that sort 11 of advice to most clients, including project managers. 12 It's -- I think the nature of our business and the level 13 of information that we need, as I mentioned earlier, 14 there's a project I'm working on just now and we're 15 having to explain to people how to keep more detailed 16 records. 17 Generally, the only -- the only reason they're 18 needed is usually when there is a dispute. People don't 19 necessarily go into construction projects expecting 20 a dispute. But my experience is probably most clients 21 that I am engaged by, particularly on live projects, 22 there is a general comment that they should keep more 23 records and expand the records. 24 Q. Does that apply too to the sort of companies given 25 project management responsibilities on projects of the 169 1 scale and value, perhaps complexity, of the tram 2 project? 3 A. I would have to say -- I can't make a general comment, 4 but I would have to say my experience is even working 5 for contractors who, as we talked about with Carillion, 6 need to keep really detailed records, we often -- most 7 often find, certainly I have found in my last 21 years, 8 that detailed record-keeping can always be bettered. 9 So in this instance, yes, it could be bettered as 10 well. 11 Q. Thank you. 12 If we could return to your report, please, which is 13 CEC00330652. Just a brief point at page 17. There's 14 a heading there at 2.5.1, "Sub-contractor procurement". 15 Then down at the bottom of the page, three lines up from 16 the bottom, you say: 17 "Please note however that our initial conclusions in 18 respect of the prioritised elements indicate that 19 sub-contractor procurement process was not a significant 20 obstacle to commencement or progress." 21 Now, in other documents the Inquiry has seen, there 22 were complaints by tie that delays by the consortium in 23 mobilising their subcontractors was a cause of delay. 24 Is that the point that you're referring to there? 25 A. I wasn't aware of that particular point that tie had 170 1 made, but the point that I'm making there is in the 2 areas that we looked at, I think procurement may have 3 been better, and sometimes, as I mentioned in the 4 paragraph above, there was the use of letters of intent, 5 which is always fraught with difficulties. I think 6 a number of the subcontracts that we saw actually had 7 caps on value under the letters of intent, which is not 8 unusual, and it can cause problems in the situations 9 that we saw. Because of other overriding factors, in 10 these particular instances, it didn't seem to us to 11 cause a major -- a major issue. 12 Q. Thank you. 13 If we could go, please, to page 28. This is dealing 14 with conclusions in relation to Sections C and D. If we 15 move forward to page 29, please, paragraph 4.2.2. Just 16 reading there: 17 "From the attached, it is evident that the dominant 18 delays to commencement (and completion) on intermediate 19 sections 1A, 1B and 1C remain with the utility 20 completions in each of those areas. The extent of those 21 delays renders this Section the dominant sequence of 22 activities which continue to drive Sectional Completion 23 Date 'C'." 24 So in short, utility diversions in these on-street 25 sections was in your view the dominant cause of delay on 171 1 the project? 2 A. Yes, and the paragraph at the end of that -- the 3 sentence at the end of that paragraph confirms even 4 through mitigation, it was still -- that at that time 5 was showing us the dominant cause. 6 Q. Thank you. Then briefly moving forward to page -- we 7 see that Section 4.3 is dealing with Section 5 of the 8 works, which I think is the section from Haymarket to 9 the depot. Is that your recollection? 10 A. Yes. 11 Q. Then if we go to the next page, please, at 4.3.2: 12 "The analysis of the above confirms that at Project 13 level the delays incurred in this section of the works 14 (although significant) are subsumed by the more 15 extensive delays incurred within Section 1." 16 4.3.3: 17 "That said, analysis of those Section 5 elements, 18 clearly identify considerable periods of concurrent 19 delay at an intermediate section level. Infraco 20 culpability throughout this section is significant. tie 21 culpability is also present." 22 Then we just note in passing, 4.4.2: 23 "Similar comments apply here in relation to 24 Section 7 ..." 25 Which I think is the stretch from the depot to the 172 1 airport: 2 "... as are made at paragraphs 4.3.2 to 4.3.5 3 above." 4 Then drawing this together, if we go to page 34, 5 please, at 4.7.2: 6 "In the present circumstances, we consider that the 7 magnitude of the early and ongoing delays to the MUDFA 8 and utility works renders arguments about concurrent 9 (critical) delay more difficult to prosecute. This is 10 particularly relevant to the respective delays evident 11 in and between Section 1 and Sections 5 and 7. Whilst 12 there is clearly Infraco culpable delay within Sections 13 5 and 7, the project critical path remains firmly fixed 14 within Section 1 (intermediate sections 1A, 1B and 1C in 15 particular are currently seen to be driving the 16 Sectional Completion Date to 11 May 2012)." 17 So in short, Mr Burt, in comparing the different 18 causes of delay, you were looking at them both and 19 coming to a view on dominance; is that correct? 20 A. Yes. 21 Q. As far as you know, was that the approach taken by the 22 consortium when they advanced their extension of time 23 claims? 24 A. I would expect that it was, yes. I don't think there 25 was any -- well, I'm not aware of any difference within 173 1 tie about the importance or dominance of utilities. 2 There was more a concern, as I understand it, about the 3 way in which the JV's or Infraco's claims were put 4 forward, but certainly from our analysis, utilities were 5 at that point in time showing to be the dominant factor 6 delaying completion. 7 Q. Okay, thank you. 8 Just two brief matters to finish, Mr Burt. 9 In 2010 tie served Remediable Termination Notices 10 under the Infraco contract on BSC. Do you recall that? 11 A. I recall a process of the Remediable Termination 12 Notices, yes. 13 Q. I think you were appointed by tie to help gather 14 evidence in support of those notices; is that correct? 15 A. That's correct. 16 Q. If we could just look at your written answers, please, 17 at page 40, just the first paragraph of your answer to 18 question 120: 19 "The underlying objective was to collect, collate 20 and assemble the contemporaneous evidence to support the 21 RTN issued; and to prepare a narrative to set out and 22 explain the principles, details and effect of the 23 Remediable Termination Notice." 24 Can we take from your answer there that prior to 25 your instruction, that work had not been done? 174 1 A. It's certainly not been done by ourselves. As I recall, 2 I think it was middle of November 2010 when we were 3 asked to assist with that process. So we had not been 4 involved in that process prior to that date. 5 Q. Okay. I think just to clarify, in your answer, if we go 6 to page 41, just below the italicised text, you say 7 there: 8 "This work ..." 9 That's your work on the remediable termination 10 notices: 11 "... commenced immediately upon the settlement 12 reached with Carillion at the MUDFA mediation held on 13 10 November 2011. This continued through until 14 mid-March 2011 ..." 15 Is there an error there in the date of the Carillion 16 MUDFA mediation? 17 A. Apologies, yes. That should be 2010. 18 Q. 2010, thank you. 19 A. Yes. 20 Q. Now, we understand that the Remediable Termination 21 Notices were dated between 9 August and 12 October 2010. 22 So it would appear from those dates that your work in 23 gathering evidence didn't begin until after the notices 24 had been served; is that correct? 25 A. Yes, most definitely we were not involved until 175 1 10 November 2010. 2 Q. What was your understanding of the extent to which tie 3 had investigated the grounds for these notices being 4 served prior to sending them in? 5 A. I am not aware of what extent of investigations they 6 carried out. 7 Q. But given the nature of your role, if tie had carried 8 out investigations of any substance, would you expect 9 them to have made available to you the results of those 10 investigations? 11 A. Yes. 12 Q. Did they do that? 13 A. Not that I recall. I recall we had meetings with the 14 solicitors where we started down the route of going 15 through the different headings that I list out in that 16 answer. There would be discussions about the issues, 17 but I don't recall having been handed any packages of 18 information in relation to each, no. 19 Q. Thank you. Just one final point, Mr Burt. At page 43 20 of your written answers, in response to question 125, 21 just the first paragraph there: 22 "A draft report was issued by my colleague, 23 Iain McAlister, on 4 March 2011 in relation to INTC 536. 24 This was reissued on 31 March 2011." 25 Now, we looked at that report with Mr McAlister 176 1 yesterday, and I just wonder if you can clarify for us, 2 when you say that the report was issued on that date, on 3 4 March 2011, are you able to confirm whether it was 4 sent to tie on that date? 5 A. To be honest, I would need to check my records. It says 6 a draft report. I'm not sure who else we would issue it 7 to. I would need to check emails, but I have obviously 8 read there that a draft report was issued there on 9 4 March. 10 Q. Is that something you could perhaps check for us and 11 revert to somebody in the Inquiry office? 12 A. Certainly. Yes, I will do that in the morning. 13 MR MCCLELLAND: Thank you very much. I certainly have no 14 questions for you. 15 CHAIR OF THE INQUIRY: Just on that last point, it would be 16 enough if you sent in a letter confirming. 17 A. Certainly. 18 CHAIR OF THE INQUIRY: Are there any other questions? Well, 19 thank you very much, Mr Burt. That concludes your 20 evidence. Technically -- well, not technically, you are 21 still under citation and you could be recalled if 22 anything arose. If that happens, someone from the 23 Inquiry will get in touch. Hopefully it won't. But 24 thank you in the meantime for your attendance today. 25 A. Thank you. 177 1 (The witness withdrew) 2 CHAIR OF THE INQUIRY: That concludes the evidence today. 3 We will adjourn until Tuesday at 9.30. 4 (3.55 pm) 5 (The hearing adjourned until Tuesday, 28 November 2017 at 6 9.30 am) 7 178 1 INDEX 2 PAGE 3 MR IAN LAING (sworn) .................................1 4 5 Examination by MR LAKE ........................1 6 7 Examination by MR DUNLOP QC ..................51 8 9 MR NEIL RENILSON (continued) ........................53 10 11 Examination by MR LAKE (continued) ...........53 12 13 MR ROBERT BURT (sworn) .............................119 14 15 Examination by MR MCCLELLAND ................119 16 17 18 19 20 21 22 23 24 25 179