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Joint Committee on Health díospóireacht -
Wednesday, 12 Jul 2023

Update on New National Children’s Hospital: National Paediatric Hospital Development Board

The purpose of the meeting today is for the joint committee to receive an update in relation to the progress being made in the development of the new national children's hospital, as well as expenditure issues and trends in relation to the development. The committee last considered this major project in the development of health services for children in October 2022. To enable the committee to consider this matter, I am pleased to welcome, from the National Paediatric Hospital Development Board, Mr. David Gunning, chief officer, Mr. Phelim Devine, project director, and Dr. Emma Curtis, medical director.

Witnesses are reminded of the long-standing parliamentary practice that they should not criticise or make charges against a person or entity by name or in such a way as to make him, her or it identifiable or otherwise engage in speech that might be regarded as damaging to the good name of the person or entity. Therefore, if their statements are potentially defamatory in relation to an identifiable person or entity, they will be directed to discontinue their remarks. It is imperative they comply with any such direction.

Members are also reminded of the long-standing parliamentary practice to the effect that they should not comment on, criticise or make charges against a person outside the Houses or an official either by name or in such a way as to make him or her identifiable. I also remind members of the constitutional requirement that they must be physically present within the confines of the Leinster House complex to participate in public meetings. I will not permit members to participate where they are not adhering to this constitutional requirement. Therefore, any member who attempts to participate from outside the precincts will be asked to leave the meeting. In this regard, I ask any members taking part via MS Teams to confirm, prior to making their contribution to the meeting, that they are on the grounds of the Leinster House campus.

To commence our consideration of the progress of the new national children's hospital, I invite Mr. David Gunning to make his opening remarks on behalf of the National Paediatric Hospital Development Board. He is welcome.

Mr. David Gunning

I thank the Chairman for his warm welcome. I thank the committee for inviting us. The statement has been provided. With the Chairman's agreement, I do not plan to read the statement everybody already has. I will make a couple of key points and will be quite brief in doing that. We are here to answer the committee's questions and we want to do that.

My first point is around project delivery-----

It is unusual not to hear an opening statement.

We have the statement. Let us hear what Mr. Gunning has to say and people can-----

It was a very strong opening statement. I hope there is no resiling from what was said, as opposed to-----

It is standard practice when witnesses come that they make an opening statement.

Witnesses can also depart from the actual written statement.

It might be better, on a controversial issue of this nature, to stay with precedent and read the statement. Let us do it that way.

I would prefer-----

Mr. David Gunning

Does the committee want me to read all of the-----

Mr. David Gunning

If that is what the committee wants, I am more than happy to do that.

I thank the committee for inviting the National Paediatric Hospital Development Board, NPHDB, to provide an update on the progress being made on the development of the new children’s hospital, NCH, and to provide an update on expenditure issues and trends relating to the development. I am chief officer at the NPHDB. I am joined by Mr. Phelim Devine, project director, and Dr. Emma Curtis, medical director. The NPHDB was appointed by the Minister for Health in 2013 to design, build and equip the NCH on a campus shared with St. James’s Hospital in Dublin 8, a paediatric outpatient and urgent care centre at Connolly Hospital, and a paediatric outpatient and emergency care centre at Tallaght hospital. Both satellite centres were handed over to Children’s Health Ireland, CHI, in 2020 and 2022 respectively and are fully operational.

In December 2018, the Government approved an investment decision of €1.433 billion for the design, build and equipping of the NCH and the two outpatient and urgent and emergency care centres at Tallaght and Connolly hospitals. To date, just over €1.325 billion of the €1.433 billion has been expended. A number of contract provisions were not included as part of the capital approval. These included construction inflation in excess of 4%; any changes in scope resulting from healthcare policy changes; statutory changes; Covid-19; implementing PwC's recommendations; claims defence; and the sectoral employment order. Work on the NCH site is 89% complete as at the end of June 2023. This progress gives us an insight into this state-of-the-art hospital that, once complete, will be available to children, young people, their families, and staff. We can see the vision of a world-class facility being realised in some of the rooms.

I will provide a general overview of the progress being made on the NCH to date. We have provided an image presentation to accompany this progress update. I also thank members of the committee who have taken the time to visit the site. Despite the challenges, construction on the NCH has advanced significantly since we last updated the committee in 2022. The external scaffolding surrounding the NCH has been removed and the external façade, including glazing, is fully complete. The most advanced areas in the building have finished floors, walls, ceilings, doors, nurses’ stations and built-in medical equipment installed. The 380 individual inpatient rooms are taking shape with fit-out of fixtures, en suites, sliding doors, joinery and medical equipment progressing.

The school area of the new children’s hospital for pre- and post-primary and secondary education is also taking shape and now has floors and ceilings, and joinery has commenced. The third-level education centre that comprises lecture theatres, seminar rooms, collaboration spaces and a library for up 2,500 students is also well under way. The glass biome, which encapsulates the lifts and stairs that provide access to all areas, is almost complete. The specialist equipment that will be built into the hospital prior to substantial completion has been procured. Some is in manufacture and some is on site ready for inspection. This includes MRIs, CTs, X-rays, theatre imaging equipment, central decontamination unit, CDU, washers and sterilisers, etc. The remaining medical and non-medical equipment will be procured in 2023 for installation after substantial completion. The process of procuring a concessionaire for the car park is under way. A public tender is also in progress for the construction of the family accommodation unit.

I will address the challenges we face. It will not come as a surprise to members when I say we face a number of challenges before the hospital can open its doors to children. I will share some of those challenges with the committee. BAM has not issued a contract compliant programme. This is unacceptable. The most recent progress report received from BAM in April 2023, for works to February 2023, stated the substantial completion date would be May 2024, which is 21 months beyond the original contracted completion date of August 2022 and 18 months beyond the contractual substantial completion date of November 2022. Progress reports in March, April, May and June 2023 have not been provided by BAM. BAM had previously confirmed in writing that an updated programme would be submitted by 7 July 2023. We are still awaiting this programme.

While I understand how frustrating this is for members, it is very difficult to provide a firm answer on the completion date in the absence of a compliant contract programme. What this project needs more than anything is certainty on the programme, which, under the contract, BAM is required to provide. The NPHDB has applied all the levers available within the public works contract to get BAM to deliver on its obligations. The continued failure to deliver a compliant programme and progress reports means BAM is not meeting its contractual obligations. For this reason, the NPHDB has advised BAM that it has issued an employer claim to withhold 15% of the payments that are due to BAM for works completed. This measure will come into effect for payments due to BAM for work completed in April, May and June 2023.

On low productivity, there are issues around insufficient productive resources allocated to site and the resulting poor productivity of BAM in meeting its programme. In accordance with the contract, BAM is required to “proceed with the works regularly and diligently” and it is obliged to resource the project at a level that will deliver substantial completion of the hospital at the earliest possible date. BAM is not providing sufficient resources to deliver the hospital. This continued lack of resourcing together with poor project execution may lead to further slippage of the substantial completion date if this continues. To illustrate this point, BAM achieved 67% of its planned output in the past 12 months. This output level fell as low as 34% at certain times during this period. To further illustrate this point, BAM's current monthly billing should approximate to €15 million. However, in recent months, it is below €10 million.

What this looks like from an actual output perspective is illustrated by examining BAM's progress on room completions. Based on BAM’s commitments, 3,000 rooms should have been completed by now. To date, 27 rooms have been deemed complete. Furthermore, upon inspection, these 27 rooms presented a large number of snags. The NPHDB has worked closely with BAM and the design team to eliminate these issues. This has been a time-consuming exercise. BAM is expected, under the contract, to focus on completing rooms to the specification required as well as on completing all other activities for which it is responsible. The children of Ireland need this hospital as soon as possible.

The operating theatres in this hospital will be completed to the highest clinical standards. An independent report commissioned by CHI highlights potential issues relating to the position of four ventilation grilles in 11 of the 22 operating theatres.

This issue is currently being reviewed by two expert teams, and we await the output of their analysis and expert reviews.

This brings me to the topic of claims. We have provided a claims table in the members' meeting pack. BAM continues to submit large volumes of claims. In fact, 2,175 claims have been raised up to the end of June 2023. The substantiated value, as claimed by BAM, is €756 million. The employer's representative has determined 1,487 claims, at a value of approximately €14 million, which is less than 2% of the overall contract value.

I will now refer to costs. Based on the delay by BAM in delivering on the substantial completion date as per its contractual arrangements, the NPHDB has submitted a capital request to the HSE in line with our governance arrangements to ensure there is sufficient funds to bring the project to substantial completion. This request is being considered by our stakeholders and, as such, I am precluded from discussing the details of the figures. As we are constantly engaging with BAM, it may also be the case that to divulge detailed information on costs publicly at this time would be disadvantageous to the State's position. The biggest driver of additional costs is delay. As I have outlined, the project is beset with delays. Unless the behaviour of BAM changes, we may suffer further delays in the period ahead.

The NPHDB is fully committed to delivering the new children's hospital in as timely a manner as possible, giving the best possible value to the State and to a standard and of the quality that the children of Ireland deserve. It is our job to ensure the quality is the best possible and that it meets the stated specifications and works requirements.

We know from what it has stated that BAM does not want the children and young people of Ireland to have to wait for the hospital for longer than is necessary. I urge BAM to consider its behaviour and overall approach to delivering on this project. The kind of behaviour that has been experienced simply must not continue. We will continue to work with BAM to drive the activity at the site and push towards as rapid and cost-effective an opening as possible. We are fully aware that issues of cost and delay are frustrating in the extreme. We share that frustration, but we will prevail. The hospital will be a wonderful, welcoming environment for children, young people, their families, students, and the heroic staff who will work there.

I thank Mr. Gunning. I will move straight away to questions from members, beginning with Senator Kyne.

The witnesses are very welcome this morning. I thank them for the statement, information and images they submitted to us and that were on display as Mr. Gunning was speaking. Many of us visited the site last year. It is a wonderful structure. The images quite clearly show the progress that has been made to date.

I have a few questions. Mr. Gunning mentioned that BAM has not issued a contract-compliant programme. What does that entail exactly?

Mr. David Gunning

It is the programme of works and it is really the plan for how we get the hospital completed. In a technical sense, it contains all the activities required to move the hospital to substantial completion. There are several elements to it – a narrative on how it will be done and detailed files to some sort of acceptable standard. There are many different standards where programmes are provided. The programme would give us all the details on how the project will be executed and completed. We have not yet got this from BAM. It would set out the substantial completion date, for example. We do not have that. What we have are progress updates and monthly updates that give us the date in May 2024.

Had the board a contract-compliant programme prior to this?

Mr. David Gunning

We did. We had a contract-compliant programme – Mr. Devine will have the details on it – and it fell out of compliance in 2021. We have had a programme since then but it was not fully compliant. Earlier this year, the board was writing to BAM, and the employer's representative, who is responsible for enforcing the contract, has also been writing to BAM.

Let me give the members an update. BAM committed to providing us in writing with a programme last Friday, 7 July. I had a conversation with BAM's chief executive in Ireland yesterday and he informed me we will have the programme next week. We sincerely look forward to receiving that programme and hope it will be fully compliant and comprehensive.

How often does the board meet representatives of BAM to discuss progress and engage?

Mr. David Gunning

Mr. Devine deals with the work details. At board level, both our chair and I, as chief executive, interact with senior executives from BAM. It is more on my part, at a working level, with the BAM team on the ground here. We have regular interaction, with conversations at least weekly – maybe not meetings but at least phone calls. At project level, there is much more interaction. A range of meetings take place monthly, fortnightly and weekly and they involve a lot of interaction between the development board, our design team, which has produced the design and is tasked with supervising the works, and representatives of BAM.

Mr. Gunning mentioned the low output, which is the crux of the issue. The percentage was as low as 30% at certain times during the period. Has BAM given any reason as to why workers are not on site?

Mr. David Gunning

We listen to what BAM has to say about these issues. It will maintain it has sufficient resources on site. That is the BAM response. When progressing with 67% or a lower percentage, it is our contention that it does not have sufficient resources. When one is falling behind monthly, there is an issue of resources, but there is also an issue of execution and various other matters.

From the outside, the building looks substantially complete. Mr. Gunning has given a figure for that. Internally, according to him, 27 of 3,000 rooms have been completed. It is hard to fathom why BAM has committed to 3,000 rooms at this stage. What amount of work has been done on all those rooms? Have they been substantially completed?

Mr. David Gunning

I would like Mr. Devine to respond to that because he has the details on the current position on the rooms.

Mr. Phelim Devine

To date, 607 rooms out of the 5,680 rooms and corridors in the building have been offered by the contractor for inspection by the design team. What we are talking about is bringing the rooms to a pre-commissioning level of completion. I am referring to the point before the services, medical devices etc. are commissioned. I am referring to a position where you can really lock the door and not go back other than to deal with a couple of minor snags. Six-hundred and seven rooms have been offered and 27 have been accepted. Those are the IT rooms and the data centre within the hospital.

There are many rooms at different stages but they are not fully snagged or completed. There are different pieces required in each. There might be a bit of joinery or flooring, or a bit of mastic might be required around the joints. However, there are parts of the hospital, up in the ward block, that are still at first-side boarding. You can still see the stud frame. There is one side of boarding, the first fix. The mechanical and electrical elements have just gone in. It is not second-side boarding. The work is at different stages throughout the hospital, but the lower part of the hospital, in the south and north fingers and the hot block, basically below level three, has rooms that are probably 80% or 90% complete but that have not yet been offered to the design team.

I thank Mr. Devine for that.

I believe Mr. Gunning said on the last occasion that a high percentage of the value of the claims relates to a small number of individual claims. Is that still the case? Could he expand on the main drivers of claims?

Mr. David Gunning

Follow the money.

As a data point, when we presented to the committee last year, the total number of notified claims raised was 1,623. We have gone up by 552 claims in the intervening period to 2,175. The public works contract, which is the contract we use, has quite a low threshold of claims over €500. If the contractor feels it has an entitlement to either time or money, that is, a delay event or compensation event of the order of €500, it can raise a claim and it does, so we have a large number of claims. Getting into the materiality, 16 claims of the 2,000 account for 76% of the money. Of the €756 million, 16 claims account for €573 million. That is where-----

Can Mr. Gunning give those figures again?

Mr. David Gunning

Yes. We have a total number of claims, in money, of €756 million. Sixteen claims account for 76% of that money, which is approximately €573 million. The total number of working days claimed under those 16 claims is 2,376 days. As I said, these are claims the contractor made for delay events or compensation events. Compensation events are usually material changes or whatever and delay events are time, meaning it took longer and the contractor is claiming it is our fault that happened. Those 16 claims are where the action is. They are all very significant delay claims around extensions of time where the contractor is seeking compensation for the extended programme. This project was due to complete by August 2022. It was extended because of Covid and other extensions to November 2022. That is the contractual stake in the ground. The time after that is the delay time. The contractor says at the moment that it is going to finish in May 2024. That is the extension of time or delay that the contractor is seeking to cover.

I am sure others will take that up. I have one final question. Mr. Gunning says there is a public tender in progress for the construction of the family accommodation unit. Is that a separate building entirely from the main structure?

Mr. David Gunning

Yes, it is. If the Senator can remember the visit to site where we met the committee members at the gate, just on the other side of that entry road into St. James's there is a site now built up to basement level. That is where the family accommodation unit will be located. It will be right at the front door of the hospital. It is currently out to tender and, as I think the Senator is probably aware, it is being will be partially funded by the Ronald McDonald charity. The State will share the funding of that premises. We have been asked to manage the tender process and the works to completion.

All rooms have accommodation for parents as it is.

Mr. David Gunning

Correct.

This is for additional family members.

Mr. David Gunning

There are daybeds in the 380 ward rooms or inpatient rooms but this is more focused on families and family members and being able to accommodate families, which has been very successful in Crumlin. This will be a larger version of that. It will have 52 family accommodation rooms at the front door of the hospital.

I welcome the witnesses. To repeat what I have said several times when the witnesses were here, we all want this hospital built as quickly as possible because we are all dealing with children who need better healthcare and better health outcomes. We also know that when the hospital is built, it will provide significant additional capacity for children. I hope we are all on the same page about wanting this built as quickly as possible.

I would like to ask Mr. Gunning a number of questions for clarity purposes. The overall approved total programme cost for the hospital, according to the most recent information I have been given through a parliamentary question, is €1.73 billion, of which €1.433 billion is the approved capital cost. That €1.7 billion includes all the sites, the electronic health records and all that but the capital element of that is €1.433 billion. Is that correct?

Mr. David Gunning

That is correct.

He said in his opening statement that he submitted a capital request to the HSE to ensure sufficient funds. Has he sought additional capital funding beyond that €1.433 billion that would then push the overall total programme cost beyond €1.7 billion?

Mr. David Gunning

That is correct. We have sought funds in addition to the €1.43 billion.

"In addition", so that is more money. Mr. Gunning talked earlier about following the money. I just want to be clear that the most recent information we have been given is that there is a total programme cost of €1.73 billion and a total capital cost of €1.433 billion. Mr. Gunning is telling us that he has sought more money beyond what was already agreed in terms of those figures.

Mr. David Gunning

That is correct. At various committee meetings we have said that this is going to take longer and cost more.

This is new information. Mr. Gunning has sought more money. How much additional funding has he sought?

Mr. David Gunning

I do not believe it is new information. There is the €1.433 billion that the development board is expending on the capital cost and then there are the CHI costs. I can only speak about the €1.433 billion.

For all of these parliamentary questions, and I am sure every member here has submitted them, we get back responses. The Government and Ministers have been on their feet talking about a figure of €1.73 billion. What Mr. Gunning is telling me today, whether he believes it is new news or not, is that he has sought additional funding.

Mr. David Gunning

That is correct. Absolutely.

What I am asking is how much additional funding he has sought.

Mr. David Gunning

We have made our capital submission to the lead director of the HSE, which is our governance requirement. This now will require Government sanction-----

Mr. Gunning cannot tell us about that.

Mr. David Gunning

I do not propose to go through any details on that-----

We certainly know it is more money. Regarding the claims, there is €756 million worth of claims. That is the valuation put on it by the contractor.

Mr. David Gunning

That is correct.

There are a lot of contractors on site. It is not just BAM. There are a lot of subcontractors and some of them are fairly big as well. Would they submit claims through BAM?

Mr. David Gunning

Yes. Our contract is with BAM, so we would receive-----

I understand that.

Mr. David Gunning

We receive claims from BAM but yes, a number of them would be-----

They would be through BAM and they would be subcontractors.

Mr. David Gunning

Again, BAM is responsible for dealing with its subcontractors.

I understand that.

Mr. David Gunning

That is just for clarity.

Is the board of a mind to do a deal with BAM and to meet it and try to resolve these issues in one go? Is there any plan at all to take all these claims and sort them out and deal with this? Is Mr. Gunning planning to engage with BAM on this?

Mr. David Gunning

We have been engaging with the contractor in a very intensive fashion. Our door is certainly open to engage and continue to engage with the contractor.

Would that involve doing a deal on these claims?

Mr. David Gunning

What we want is certainty on the date.

Will it involve doing a deal on these claims?

Mr. David Gunning

We will go into discussions with the contractor with a view to finding what we think is the best outcome for the State.

I will take that as a "Yes".

Mr. David Gunning

We are open to see where we can go with this..

Okay. I will move on to the operating theatres. I will come in a second time and I will have more information on the claims. We have very limited time. Can Mr. Gunning confirm that on 11 and 12 May 2022, STS consultants carried out an inspection on site of the operating theatres?

Mr. David Gunning

I can confirm that.

Can he also confirm that on 30 May, that company submitted a report to the board and to Children's Health Ireland stating that there were potential problems with airflow and air circulation in 11 of the operating theatres?

Mr. David Gunning

We know the report the Deputy is referring to.

I am asking if Mr. Gunning can confirm it.

Mr. David Gunning

I have seen the report, yes.

So he can confirm that it did that in May 2022. That was the first report.

Mr. David Gunning

Yes, that is correct.

Can Mr. Gunning then confirm that on 26 and 27 October 2022, it carried out a second inspection?

Mr. David Gunning

I think that is correct.

Can he also confirm that it sent a report on 17 November 2022? Is that right?

Mr. David Gunning

Yes, that is correct.

I just want to read some of what is in that report. This is what the second report, which was issued to Children's Health Ireland and to representatives of the board, says:

The theatre ventilation progress was particularly disappointing. None of the issues raised following our previous visit have been addressed and some new ones were discovered.

We have listed ... issues of particular concern, which will result in the installation failing to be accepted as fit for purpose and compliant at final validation.

Is that not what it states?

Mr. Phelim Devine

It does but I must go back-----

I am asking what it states. I will give Mr. Devine a chance to respond to it. I just need him to confirm that what I am reading out is correct.

Mr. Phelim Devine

Yes, it is correct. The Deputy has the report.

It goes on to state:

The .. distribution of air within the theatre will be compromised by this layout. To make a bad situation worse, in some cases the theatre supply air terminal is effectively in a corner...

Does it not say that?

Mr. Phelim Devine

It does.

It also states that "The foregoing list [it lists all the difficulties] should not be seen as exhaustive," and that it is "not a snagging list, but rather indicative of major generic faults".

Mr. Phelim Devine

The report states that.

It cites major generic faults, non-compliance and unresolved issues found during the walkarounds. The report also states "The longer that these issues take to get resolved, the more expensive and time-consuming it will become". Is that not what it states?

Mr. Phelim Devine

Yes, that is what the report states.

In layman’s terms, "more expensive" means more money and "time-consuming" means it will take longer to resolve. It goes on to state:

If the present approach to the insulation and ventilation system serving the critical areas in this hospital is not corrected, the systems will fail the final validation and will not be fit to be taken into use.

Is that not what it says?

Mr. Phelim Devine

That is what the independent report states.

The final paragraph sums up the children’s hospital in a nutshell:

When the site visit was set up, it was intended to take two days, but because of the lack of progress, one day sufficed. Please note that the two days were programmed and the time allocated, flights booked and hotel accommodation reserved. We will therefore invoice accordingly.

They came to do two days’ inspection but it did not even take them one day because they were disappointed with the work that was done. Mr. Devine said in response to me putting this information into the public domain that this was a minor problem. He is now telling us that there are two expert groups – I am assuming STS is one of them – looking at this. Can he also confirm that there was a direction given as well? We also know that there was an employer representative direction given on 29 May to stop works in 11 of the operating theatres.

Mr. Phelim Devine

Just for clarity, the second expert is our design team.

Mr. Phelim Devine

Okay. Just for clarity.

Potentially, there is a problem that falls back on the design team. Independent experts were brought in to examine this and they found there is a major problem.

Mr. Phelim Devine

There has to be context to that. It is important that the Deputy hears the context around bringing those experts in. We set out very early in the project back in 2017 with CHI to bring in five experts across five key areas to the hospital, such as ventilation, water, electrical and medical gases, and there are four specialist fit-outs in the hospital and four laboratories who brought in five experts. Those experts reviewed the design back in 2017 and 2018 and that went through with flying colours. Now, they are looking at the construction. The reason we did that was through international lessons learned on large healthcare projects, we identified that there have been problems internationally with large hospitals. To try to avoid that, we brought in these experts.

I have given the Mr. Devine the time to say that. However, with respect, I have to put this to Mr. Devine and I am putting it to Mr. Gunning as CEO. This company was brought in by CHI, is that not correct?

Mr. David Gunning

Yes, with our co-operation.

I understand that but I am saying it was CHI that would have brought them in, essentially, with NPHDB's support, and they are experts.

Mr. Phelim Devine

It was agreed-----

Can Mr. Devine let me put the question?

Mr. Phelim Devine

-----between CHI and NPHDB that we would bring in these-----

Yes, I understand. Allow me to put the question. I am accepting all of that. I am saying they were brought in as experts by CHI and supported by the NPHDB. They reported in May and said there was a problem. They came back in October and were hugely upset that the works were not done. They then reported back in November, identified more problems and in fact said it was very disappointing that the work had not been done. The NPHDB then issued a stop notice, essentially, and applied a directive in May of the following year. It then issued a change order where it asked a number of contractors essentially to go into conclave to sort this out. Regarding the change order that asked for workshops to be established, are those workshops up and running?

Mr. Phelim Devine

So the Deputy understands the timing, I refer to May 2022. I will read it because the Deputy has the report. STS stated:

Many of the theatre supply air diffusers appear to be positioned close to the theatre walls. The efficient distribution of air within the theatre may be compromised by the layout.

It did not state there were any generic faults, as the Deputy read out in the November report - it did state that in the November report.

Once we got those reports, our design team, who are responsible for the design of the theatres, reviewed them. Our design team told us that the performance of the theatres was in accordance with the health technical memoranda-health building notes, HTM-HBN, guidance documents. They are guidance documents. They are not standards; they are guidance documents. The design team then went off and did industry-recognised computer modelling to prove and demonstrate that those theatres, with the grilles in the position they are in, perform equally or better than stated in the HTM guidance.

But the problem here is that I can only go on the information we have, which is that we have an independent expert that was brought in that clearly has a different view and clearly is not satisfied with the air circulation-----

Mr. Phelim Devine

Correct.

-----which we know is really important in operating theatres.

I wish to make one final point. There are now workshops established. Can Mr. Devine confirm that BAM will be in those workshops but there are also other major contractors – mechanical and engineering – that will form part of those workshops?

Mr. Phelim Devine

Further to doing that computational fluid dynamics, CFD, analysis, computer analysis and physical testing on the site, STS wrote to CHI and said it believes the grilles need to be moved.

That is not the question I asked.

Mr. Phelim Devine

I am getting to the workshop. Just give me a minute please.

I do not have much time. I am asking Mr. Devine a direct question.

Mr. Phelim Devine

Sorry. Right. We have a difference of opinion between the STS experts and our design team, namely, Arup, who are also experts at a huge global multinational company. After that, because we are looking at different options for the resolution of this issue, under the guidance of our design team who are responsible, we asked the contractors and the mechanical and engineering subcontractors to engage in workshops to see what the impacts would be if we instructed the grilles to be moved.

I have given Mr. Devine time to say that. I wish to clarify this. Those experts and contractors are now in workshops, so they have not reported back-----

Mr. Phelim Devine

They have completed those workshops.

Have they reported back?

Mr. Phelim Devine

We have sketch proposals that are complete, which Arup, our design team, and mechanical and engineering designers have looked at and we are reviewing them on the impacts of moving the grilles as one of three options.

I thank the witnesses for the documentation. The last time they were with us was in October of last year. From my perspective, it is very hard to see where progress has been made or this project has been reined in in any way. I thought the October session was highly unsatisfactory and the witnesses were not able to be specific on anything at all. I am sensing the same kind of attitude this morning where, in a very casual way, they are saying that of course it will take longer and cost more, but they are not providing any specifics to us at all on either of those issues. The whole country is waiting for this hospital to be completed and is watching as the bill seems to be ballooning all the time.

I am not satisfied that the witnesses have come in and told us they still do not have a clue how much it will cost ultimately or when it will be completed and ready for use. I am hearing that the situation has disimproved considerably. The witness are saying that only about 30% of the activity is taking place that should be taking place at this stage. They are also saying that the number of claims has increased substantially. It is hard to know who is actually in charge of this project. It is a massive project that is badly needed. I have no doubt that it will be, at some point in the future, a great facility. It is badly needed. I was very impressed when I visited it last year.

Who is in charge of this thing at the moment? It seems to be running out of control completely. How is it the case that two years on from the last compliance programme, we still have not got a current one? How has that situation been allowed to develop?

Mr. David Gunning

I will respond to the Deputy's general point in terms of specifics.

I will go into the specifics in a moment. Can Mr. Gunning just answer that question? How has the situation been allowed to continue where there has not been a compliant programme for over two years?

Mr. David Gunning

We did have a compliant programme, as I mentioned. Then we had an extended engagement with the contractor where it provided us with a programme that was not fully compliant, but which still contained the various completion dates we have shared with the committee. We monitor the progress on it. While not fully compliant, this was the programme. For the last two years, the contractor has delivered around 67%. While not fully compliant, it was, shall we say, sufficient to allow us to monitor progress. Earlier this year, we were concerned when the 67% dropped below 60% and the performance dropped off further. The development board was sufficiently concerned to request a formal programme for completion of the works.

It is hard to understand how the board accepted a less than adequate-----

Mr. David Gunning

We never accepted it contractually.

It accepted a situation where there was not an appropriate compliant programme.

Mr. David Gunning

Going back-----

Does the contract provide for penalties for the failure of the contractor to produce that programme, which is essential?

Mr. David Gunning

Yes, and in the past, we applied those penalties. The contractor-----

When were those penalties applied?

Mr. David Gunning

I think it was in 2020.

Given that there is not an adequate programme at this point, two years later, why have the penalties not been applied?

Mr. David Gunning

We have applied penalties, as set out in the opening statement.

Three years later.

Mr. David Gunning

We have applied them. I am trying-----

When were they applied?

Mr. David Gunning

Last month.

So, the board allowed two years to lapse without a satisfactory compliant programme.

Mr. David Gunning

If the Deputy would let me paint the picture. We have been-----

I am just asking Mr. Gunning to tell us why that is the case.

Mr. David Gunning

Contractually, that is correct.

Yes, so why did the board allow that situation to occur?

Mr. David Gunning

As I said, we had a programme that was not 100% compliant, but was sufficiently robust from the development board's point of view.

It was not satisfactory.

Mr. David Gunning

It was not 100% satisfactory. It was sufficient to allow us to progress and measure progress on the site. At that stage we were attempting to engage, in a collaborative fashion, with the contractor. We had been through the wars, the leveraging of 15%-----

Okay, I hear what Mr. Gunning is saying.

Mr. David Gunning

I ask the Deputy to let me finish. It did not really realise what we wanted. We sought another approach, which was more collaborative, and that came to a conclusion. Now, we are back in a more robust contractual phase. That is the nature of the engagement we have had.

I would question the collaborative approach because I do not think it has been satisfactory. Another way of describing a collaborative approach is to say it is a lax approach.

Mr. David Gunning

The contract-----

That is the way it is coming across.

Mr. David Gunning

-----requires the parties to collaborate.

Okay. In relation to the completion of rooms, the board has said that 20% of the 3,000 rooms are completed to the point where they can be snagged. Is that the case? Or is the figure 27?

Mr. Phelim Devine

No. What I am saying is that the contractor committed to offering about 3,000 rooms, as complete for inspection, by the design team. To be exact, it has offered 607 at the end of June, and 27 of those have been accepted. They are the IT rooms and data centre.

The figure it has offered is 20% of the total.

Mr. Phelim Devine

It has offered 11% of the total-----

Mr. Devine mentioned a figure of 600 out of 3,000.

Mr. Phelim Devine

-----number of rooms and corridors to date, at the end of June.

Sorry, was the figure 600 out of 3,000 rooms?

Mr. Phelim Devine

It is 607 out of 5,680 rooms and corridors in the building.

Mr. Devine is including corridors in that figure.

Mr. David Gunning

There is a confusion between the 3,000 figure and the 5,000 figure. The total number of rooms is 5,000, but by this stage under the programme, the contractor should have offered 3,000, or 80 per week.

On the delay in the 600 rooms that have been offered, to what extent is the delay on the board's part rather than that of the contractor, given that only 27 rooms have been signed off for snagging?

Mr. Phelim Devine

The contractor is fully responsible for delivering those rooms in accordance with the contract.

Is the board satisfied?

Mr. Phelim Devine

The responsibility for the delay lies with the contractor. It comes down to what Mr. Gunning said in his opening statement. The 67% delivery against the programme is an issue of resources.

I get that. The claims have increased substantially since the board was with us last. Last October, we were told that the strategy was to park the claims until the completion of the construction work. That is what the board told us at that stage.

Mr. David Gunning

We parked them for the duration of a moratorium that we discussed with the committee the last time.

For how long was that moratorium?

Mr. David Gunning

It finished in January of this year.

I would like an update on what the board has done since January in relation to the claims. We have been told that 16 of the claims accounted for 76% of the total value. That means there are 16 claims with an average cost of €36 million each, which is a vast amount of money.

Mr. David Gunning

Some of them are over €100 million, just to be clear.

The average cost is €36 million.

Mr. David Gunning

Yes.

What is the strategy for addressing those claims? The total value of the claims is €500 million.

Mr. David Gunning

Correct.

What is the board's strategy for addressing the big claims that account for most of that sum?

Mr. David Gunning

The raising of claims is the contractor's entitlement under the contract. It is entitled to do that.

Yes. I am asking what the board's strategy is for dealing with them.

Mr. David Gunning

Our strategy is to respond and defend each claim robustly. That is our approach.

What does that mean in practice? What is happening on those?

Mr. David Gunning

There is a process set out in the contract as to how these claims are dealt with. A claim is raised, and then substantiated. The vale of the substantiated claims is €756 million. The claim is then referred to the employer's representative who then makes a determination on the claim. Either party can accept or reject the determination. The vast majority of the determinations are not accepted and go through the disputes process. The first step in the disputes process is the review at the project board, which is a committee made up ourselves and-----

I am nearly out of time. Since the moratorium ended in January, how many of those claims have been settled or dealt with?

Mr. David Gunning

Currently, there is a very big one in conciliation. There are actually two in conciliation currently. There have been three adjudications, which is a separate mechanism outside of the contract, under the Construction Act. There have been three conciliations this year. In total, of the 1,400 disputes, 24 have been through a conciliation process.

I thought Mr. Gunning said there were over 2,000?

Mr. David Gunning

That is the number of claims but as they go through the different filters, many are referred to disputes. They are not all in there yet.

None of them have been finalised since January. Is that what Mr. Gunning is saying?

Mr. David Gunning

We are in the process of settling one or two relatively small claims, on an agreement basis.

I am talking about some of the big ones.

Mr. David Gunning

No, they absolutely have not been finalised.

How many are in court at the moment?

Mr. David Gunning

There are two claims in the High Court. The court watchers will know that BAM is seeking to reinstate what is the phase B instruction. It is essentially claiming that the instruction to commence works was not valid.

It was not valid. Okay.

Mr. David Gunning

That case is in the High Court. It was mentioned last Monday.

What is the value of that claim?

Mr. David Gunning

It does not have a value. It is to be determined, as it were. It is now in the High Court. Any values that were attached to it all fell away once it went to the High Court.

What is BAM valuing that at?

Mr. David Gunning

It is more than a value. It goes to the core of the entire project. BAM is arguing that the instruction to commence work was not valid. I could not put a number on it.

What is the second claim?

Mr. David Gunning

The second one concerns the concrete and steel frame of the building. BAM had a claim for that which went through conciliation. The development board was not happy with the conciliator's decision and BAM has subsequently referred that to the High Court. Again, once it goes to the High Court, the numbers fall away and it becomes a new case.

This is my last question. Is there any connection between the ending of the moratorium and the go-slow that is under way?

Mr. David Gunning

No.

Is the board satisfied that is the case?

Mr. David Gunning

I do not believe that is the case at all.

Can you clarify something, Mr. Gunning? You talk about the claim. Is that the Covid claim? Is that still outstanding or has it been resolved?

Mr. David Gunning

There are a number of Covid claims, not just one. One claim has been settled. Basically, it relates to the Government-mandated shutdown period. The contractor has been awarded all that time onto the contract. That is partly why the original contract date of August 2022 has moved to November 2022. In other words, the new date for the contract completion is November. There are, however, other Covid claims still in the works being worked through the process. The contractor is claiming other moneys relating to Covid.

Thank you. I will move on to Deputy Hourigan.

May I pick up on something Mr. Gunning said about the phase B instruction? I think we are all aware of that. Are there any damages for delay in the original contract?

Mr. David Gunning

The contract has a liquidated and ascertained damages clause.

There are no unliquidated damages up to this point.

Mr. David Gunning

The sole remedy for the employer is through the liquidated and ascertained damages, LADs.

Okay, but, obviously, if the phase B case is successful, those liquidated damages in the contract go to the-----

Mr. David Gunning

That would be a very big decision.

It would be very big because that is the chief point at which the State might recoup some of its costs.

Mr. David Gunning

We are going through a process. We have put the contractor on notice of our intention to apply liquidated damages. There are three sets of liquidated damages under the contract. There are the works of the NCH and there are the family accommodation unit works, which are the preparatory works on which another contractor builds the buildings from the foundations. The third set is to do with the hub rooms to which Mr. Devine referred earlier. The ICT hub rooms are a separate sectional completion. We have indicated our intention to enforce the contract and the LADs on those three areas. The contractor has now already referred to conciliation two of those, so we are already in dispute on the contractor effectively questioning or refuting the development board's right to assert its rights under the contract on that topic.

Is the liquidated damages sum comparable to the 15% Mr. Gunning talked about in his opening statement?

Mr. David Gunning

They are different for each of the three-----

I know they are different.

Mr. David Gunning

-----and they have different glide paths and so on. We have the data. If the Deputy really needs them, we can provide them to her.

To be clear, how are the liquidated damages set out in the contract? Is it a particular sum per day or-----

Mr. David Gunning

It is per day or per week. There is a calculator there.

There is a calculator, so there is a formula.

Mr. David Gunning

Yes, there is a formula.

Do we have access to the formula to see it?

Mr. David Gunning

We-----

Mr. Gunning will have a think about that.

Mr. David Gunning

The public works contract has this as standard, but the specific implementations vary.

I know, but there are deviations from that.

Mr. David Gunning

Yes, but we have it. We have shared this, I believe, with the Committee of Public Accounts, so yes, of course we can share it.

To stay on that issue, Mr. Gunning stated: "The NPHDB has applied all the levers available within the public works contract to get BAM to deliver on its obligations." Does he feel that those levers are enough?

Mr. David Gunning

I would love to comment on that but we are in contract. That is what we have. Outside of the contract, however, it is about engagement and trying to find a way. Deputy Cullinane asked if we would engage. We have engaged and we will continue to do so, but that is a negotiated or an alternate dispute mechanism-type approach, which we will-----

It is not a question for Mr. Gunning. It is possibly a question for the Department of Public Expenditure, National Development Plan Delivery and Reform as to whether contractors that behave in a certain way are precluded from future contracts.

Mr. David Gunning

It is a huge question, absolutely.

Yes. It is a question we should really be talking about more.

To be clear on one other point before I move to a different topic, Mr. Gunning said BAM was meant to produce a compliant programme for this Monday but that it has-----

Mr. David Gunning

Last Friday, 7 July.

Last Friday, and now he expects it next Monday.

Mr. David Gunning

I expect it next week, which are the precise words that were said to me.

Next week sometime. Okay. Was BAM aware that the NPHDB was coming before the Oireachtas health committee to discuss this issue?

Mr. David Gunning

I would be 1,000% confident that it is aware.

Did Mr. Gunning mention to the senior person in BAM that the witnesses were coming before an Oireachtas committee?

Mr. David Gunning

They mentioned it to me, so the Deputy-----

They mentioned it to you so they were aware that the programme was due last week. It is coming next week and, in the interim, there was a session discussing this very issue.

Unfortunately, I want to go to digital healthcare records and that contract. Has that contract been signed?

Mr. David Gunning

That is the CHI side of the house.

So Mr. Gunning is not aware of anything in that regard.

Mr. David Gunning

I am sure we could comment on the matter. It would be better if CHI were to comment on-----

Is the NPHDB aware that the contract has been signed?

Mr. Phelim Devine

Yes, we believe it was signed.

It was signed. Was it signed with Epic?

Mr. Phelim Devine

Yes.

Do the witnesses know when it was signed?

Mr. David Gunning

We should stay out of CHI's business.

We will ask CHI when it comes before the committee. I have plenty of questions about the Epic issue. Did the NPHDB get a response from BAM on the NPHDB's correspondence with it on the withholding of the 15%?

Mr. David Gunning

We have had endless correspondence on these matters. The situation with the 15% is that we did this before a number of years ago. It has been through the conciliation and a decision from a conciliator, and I think it went to adjudication. We do not have a great degree of doubt that we will be able to enforce that 15%, but it starts at the end of July on that valuation certificate.

Is it fair to say that the matter is in the hands of BAM's legal team now and that it is not communicating about it with the NPHDB directly?

Mr. David Gunning

We will be sitting down with BAM next week. We regularly do so and these issues come up. I will make a practical statement that the Deputy certainly will understand. We are at the point where we want the contractor to make more and more progress, yet the only sanction the contract allows us is to withhold money from the contractor at the time when it needs the money. We therefore have to be very measured and reasonable and fair in decisions that affect that cash flow. We need to think that that may have some further unfortunate consequences on actually achieving substantial completion. We have to take all that into account in making these decisions. I just make that general point.

May we go back to the issue of the completion of rooms and snagging in order that I can have a clearer understanding of it? Quite a large proportion of rooms are not complete, but 607, I think it was said, have been offered by BAM as complete. Can the witnesses just give me a little narrative understanding? BAM is offering them up. How long is the process for the NPHDB to sign off on them? If they are not being signed off, is there a running thread here whereby there is some particular issue or snag that keeps coming up? Is it something to do with change orders? Could the witnesses just explain what is happening there? Is it simply low productivity and things not moving along?

Mr. Phelim Devine

There is an agreed room completions process. It can be between our design team and BAM. It is not that the design team is signing off on the rooms because those rooms do not actually get to the point of being fully signed off or handed over until substantial completion. What the design team does is, to assist BAM, go in and inspect them and say, "Yes, this is what we expect in terms of compliance with the works requirements and the elements of those rooms that are being offered within the inspection." In the inspection there might be one or two exclusions from that, which they will come back and do at a later date. Basically, they do not get handed over until substantial completion. There are a number of issues, but we are working with the contractor. We in the development board, with our design team, are the guardians of quality on this project to ensure that the State gets a hospital that is fully compliant and of the highest quality. That is what we are striving for. We work with BAM then in terms of achieving-----

Okay, but my question is about the magnitude of the snagging. Is there a running theme? Is it resulting in significant change orders or is it just a standard snagging list that is being worked through? I know that can take for ever.

Mr. Phelim Devine

It varies. We had an awful lot of snags identified as part of the 27 rooms, but they have now got to a point at which they are accepted, and there are lessons learned in terms of the process at the early stages. We found this in other processes we had on quality on the project, but that is us working with the contractor, the design team working with the contractor, to ensure we get the highest quality building.

In the time I have left, may I ask about the family accommodation unit? Could the witnesses just take me through that tender stage and where we are with it? The preparatory works on site are done by BAM.

Mr. Phelim Devine

Yes. BAM was responsible for doing the basement. That is built, so-----

Is it a separate basement or is it a shared basement with the campus in general?

Mr. Phelim Devine

It is a separate basement but it has interconnectivity with the children's hospital, so you can walk-----

Physical interconnectivity with the services?

Mr. Phelim Devine

Yes, it has interconnectivity with the children's hospital-----

So you can walk under-----

Mr. Phelim Devine

-----so you can walk straight through the basement car park into the hospital. The next stage is a design and build contract for the superstructure of the building, and we are now out to tender under that.

On eTenders. Is BAM tendering for that?

Mr. Phelim Devine

BAM has not tendered for it.

I was just wondering.

Mr. David Gunning

And if BAM were to do so, I do not think we would have enough grounds to exclude it.

Mr. Phelim Devine

Yes, but it did not apply.

Mr. David Gunning

That is the reality of-----

This is my point, and I am not making comments asking for questions from the witnesses.

For the record, though, there is nothing to stop this company tendering for this contract. There is nothing in the current situation that would preclude it from tendering or even to mark it down in the tendering process. Do I have the right understanding of this? There is nothing in the current points scoring undertaken during tendering, in respect of having a certain level of turnover, insurance, etc., that would stop BAM winning this tender if it were to apply for it? Is that correct?

Mr. David Gunning

That is my understanding.

At what stage is that tender expected to come back?

Mr. Phelim Devine

It is due back around mid-to-late August.

Okay. What is the timeframe then concerning how long it will take? Who is doing the review?

Mr. Phelim Devine

We hope we will have it evaluated by September and then to appoint in October. It is design and build, so there is pre-construction activity. We expect this to be on-site towards the end of this year or early next year.

There would not be the same level of commissioning in this regard. There is not an 18-month run-in.

Mr. Phelim Devine

No. It is very simple. It is like student accommodation-----

Mr. Phelim Devine

-----or hotel-type accommodation.

Mr. Phelim Devine

We are probably talking about a 16- to 18-month build period.

If it gets started around Christmas, then, we are looking at having this up and running in mid-2025.

Mr. Phelim Devine

It will be early in mid-2025.

Okay. Would we expect it to happen in parallel with the opening of the hospital? This sounds like a similar timeframe. I am not trying to walk anyone into a trap, just in case anyone thinks I am.

Mr. David Gunning

We are not walking into it, but nice try.

On the same issue, is this additional spending in respect of the building or was it in the original costings?

Mr. Phelim Devine

I think this was mentioned earlier. This is outside the €1.433 billion funding. This is additional funding being put in place by the charity and the State. It is about 50:50, or a little more on the part of the State than the charity in this funding model.

Okay. I thank Mr. Devine.

Several of us visited the national children's hospital site last year. It is incredible architecture and and an incredible building overall. Hopefully, when it is finished the children of this country and their families will be able to use it. Hopefully, as well, this will be quite soon. Turning to the claims being made by BAM, would this be normal practice in other large-scale projects?

Mr. David Gunning

We have thought a lot about this and done the analysis. What is unusual is not the number of claims but the overall quantum. The amount the contractor is seeking is heading towards the original value of the contract.

Mr. David Gunning

The contract is for €910 million and we are at €756 million and rising in this claims context. This is the incredible aspect of this situation.

Will Mr. Gunning just remind us, and viewers of and listeners to this meeting, of the original value placed by BAM on the construction at this site?

Mr. David Gunning

The contract is for €910 million in round numbers. This is the contract in place between BAM and the development board in terms of the scope of the work that company was to deliver.

This €910 million was the original sum to build the hospital.

Mr. David Gunning

Correct. It is called the adjusted contract sum, but this is the baseline.

These claims are now coming up to this figure in value.

Mr. David Gunning

This is what we think is really incredible.

The board is saying there have been 16 claims totalling €573 million.

Mr. David Gunning

Yes.

One of these claims is for €100 million.

Mr. David Gunning

Correct, or for more than €100 million. This is the nature of the claims. It is interesting, just to point this aspect out to the committee, that in the context of these 16 claims, as I mentioned, some 2,376 days are being claimed by the contractor.

When Mr. Gunning says "days", what does he mean?

Mr. David Gunning

BAM is claiming compensation for each day it is in delay.

How much would one day cost?

Mr. David Gunning

I want to make a slightly different point, if I may.

Mr. David Gunning

If we just take the time from the contractual completion date of November 2022 up to 7 May, the period BAM is talking about, this is 405 working days. If we count the number of days, the total is 405. Yet BAM is actually claiming for 2,376 days just on these extensions of time, EOTs, alone. It is, therefore, claiming nearly six times for each day, with duplicate claims, overlapping claims, etc. Someone mentioned mechanical and electrical, M&E, claims earlier and several of these are all layered on top of each other as well.

Mr. David Gunning

I just wished to make the point that this is the position. There is much duplication, repeat, overlap and concurrency in the days being claimed by BAM.

Mr. Phelim Devine

To aid understanding, it is only possible to ever get compensation for one day. It is not possible to get compensation six times for the one day.

Mr. Phelim Devine

We obviously refute that the company is entitled to any extension of time on this project.

How does this explain the company-----

Mr. David Gunning

To get back to the Deputy's question, the point is we see these as grossly inflated claims.

Mr. David Gunning

This is not to say there is no entitlement in respect of some of these claims. The company, of course, has entitlement in this regard, and it will be paid.

Mr. David Gunning

The current position is that the independent contract administrator, the employer's representative, ER, has awarded BAM some €14 million. The company is claiming €756 million and it is getting €14 million extra.

Why do the witnesses think BAM is putting all these claims forward, especially concerning the days? The number Mr. Gunning is explaining to us regarding the days is six times less than what BAM is claiming. There must be some kind of logic to this, although this does seem to have been completely illogical from the beginning.

Mr. David Gunning

There is a strategy. I do not wish to speculate on what it is, but the contractor is clearly following one. Our position is to offer a defence in this context.

It is public money after all.

Mr. David Gunning

-----and to challenge each and every one of these claims for each and every one of these days.

Mr. David Gunning

If it is 405 days, then we absolutely do not believe BAM is entitled to this extension of time, never mind 2,376 days. If representatives of the company were sitting here and were to make the point they believe the development board and the design team is responsible in this regard by not having provided the design and producing change orders, then that would be their narrative.

Mr. David Gunning

To be clear, we do not accept it.

On the Government's investment of €1.433 billion, which is an enormous amount of money, thus far €1.325 billion has been expended. Correct me if I am wrong, but this leaves €100 million remaining.

Mr. David Gunning

Yes.

Will this figure for Government investment be breached then over the lifetime of the construction of this hospital?

Mr. David Gunning

This brings us back to an earlier point I made in answering the question from Deputy Cullinane. We have submitted a capital request to the Government seeking additional funds, or to put it another way, to increase the approval level from €1.433 billion up to what we think will be required to finish the hospital. We cannot breach the limit of €1.433 billion because of public spending rules.

Deputy Gino Kenny: Right.

Mr. David Gunning

We must, therefore, get approval for this and there needs to be a Government decision to provide the money.

Does Mr. Gunning think the spending will go beyond the €1.433 billion?

Mr. David Gunning

Yes I do, absolutely.

How much more will be needed?

Mr. David Gunning

I am not going to comment on that at this point, as I said earlier.

The figure of €1.433 billion, however, will definitely be breached?

Mr. David Gunning

Yes.

Okay. Moving to the issue of low productivity regarding BAM, it seems extraordinary that in the evolution of this hospital productivity has gone down rather than up. Does BAM have the will to finish this project? I refer to its commitment to this endeavour. I say this because there seems to be all sorts of sideshows going on here in respect of claims, counterclaims, etc. We would think, though, that productivity would have increased rather than fallen in respect of finishing the project. Hand on heart, does Mr. Gunning think BAM wants to finish this project?

Mr. David Gunning

Well, BAM is in contract to finish it. The logic in my mind is that once a company is in contract, the sooner the project is finished, the more cost effective it is possible to be. This is the reality on all construction projects.

I know from my conversations with BAM and what it says to me that it is absolutely committed to finishing the project. Furthermore, I would go on and say that the large Irish subcontractors working on this are equally committed and want this project to be a success. There is absolutely no doubt in my mind about that. In a recent letter from BAM, it has committed to finishing out the project and getting it done. Now we need to get our arms around that and how we get that completed.

What is the time period when the first children and staff will be able to go into the hospital? What are we talking about?

Mr. David Gunning

We are talking about the substantial completion, which is the end of the building phase. As I mentioned, we would expect to get a programme from BAM next week and be able to define that point. Children's Health Ireland will take over after and do its operational commissioning for whatever period of time that takes, which will determine the opening date for the hospital. Again, the programme is critical. For example, we bought all of this equipment - CT scanners and all of that. We need the programme to tell us when we get on to Siemens, General Electric, GE, Miele, or whoever it is who will provide this high-tech equipment, about when we want to get it manufactured, produced, delivered and ready to install. The whole programme BAM needs to provide must give us those dates.

The follow-on to the programme is that Ms Eilish Hardiman and the whole team of people in Children's Health Ireland, CHI, need to take this forward. They have several workstreams under their remit. They have to carry out the operational commissioning, do the digital hospital piece Deputy Hourigan referred to, which is the electronic health record, EHR, all the operating processes and the development of those, and merge three hospitals into one. All of these have to happen. It is critical we all have clarity on when the timing will be. If I were to ask for anything now, it would be certainty. I want certainty on the date.

Mr. David Gunning

Of course.

My final question relates to the concessionary car park. How will that work?

Mr. David Gunning

We are leading the procurement of a concessionaire, to use the appropriate title, and we are well advanced on that. We will shortly, I think in October, get formal offers of what people are willing to offer for that. It is set out in the tender documents. This is someone who will operate the car park on behalf of CHI, if you like, and for CHI. The Minister has made decisions relating to maximum charging on a daily basis in the hospital. We may have commented on that before. We are well advanced on that.

What is the maximum charge per day?

Mr. David Gunning

It is €10 per day.

Staff will not have to pay it, will they?

Mr. David Gunning

I do not know the details. I know there are designated staff car parking spaces. I will leave it to CHI to negotiate. That is not within our remit. That is a CHI matter. We are procuring the car park, but ultimately CHI currently operates a number of car parks and it will be its responsibility to take this to conclusion.

I thank Mr. Gunning.

We will have a break in a few minutes, but before we go, on this question of the capital request to Government, Mr. Gunning said he is not prepared to give that information. Is it because he feels that it would weaken his case with BAM or is it just a courtesy thing that he does not want to give that information?

Mr. David Gunning

I thank the Chair. We set out two points in the document. This will become the subject of a Government sanction, which I do not think I can comment on. That is now the process that will kick off. We are always available to sit down with BAM and try to find a way through these differences we have. I do not want to put out approved numbers and various things like that into the public domain that may shift the ground on us in a negotiation discussion. I hope the Chair understands our position on that.

During the summer it would just be a matter of putting in a freedom of information request and it would get out there anyway. I am just trying to tease out why Mr. Gunning will not give that information. If he feels it will weaken his hand with BAM and their negotiations, that is understandable, but it will come out in the public record over the summer period. It would be just useful for this committee-----

Mr. David Gunning

That may well happen, but I think we have made our position clear today, even before today.

How urgent is it that the Government approval is given? Is there a danger of the delay of an approval holding up work?

Mr. David Gunning

No.

There is not, okay.

Mr. David Gunning

I do not believe so. We mentioned in our opening statement that the currently monthly invoices are less than €10 million. If BAM was delivering at the level we would like it to be at, which would secure a May date, then we would be spending more and it would become more urgent. Unfortunately, we are at such a low level that it is extending the timeline of when we would require additional funding. I hope this answers the question.

I will suspend for a ten-minute comfort break. We will resume in ten minutes and will lead off with Deputy Colm Burke.

Sitting suspended at 10.56 a.m. and resumed at 11.08 a.m.

I thank our guests for their presentation. I wish to ask a question immediately because it is important that the correct information is out there. In 20 seconds, will the witness set out the project exactly, including the total number of rooms and theatres, accommodation for students and parents and the number of inpatient beds? Clarification is needed about what exactly this project is.

Mr. Phelim Devine

There are 380 inpatient rooms, of which 60 are critical care and 20 are for child and adolescent mental health services, CAMHS. There are 93 day beds, 22 operating theatres and one associated interoperative magnetic resonance imaging, MRI, machine, that sits beside the neurotheatre. There are five MRIs, seven X-ray machines, two fluoroscopy rooms, and three computerised tomography, CT, machines, one of which is a single-photon emission computed tomography, SPECT-CT, machine, in imaging.

What is the total number of rooms in the complex?

Mr. Phelim Devine

There are 4,800 clinical rooms, 5,600 rooms and corridors or spaces within the whole hospital.

We were talking about the building programme. With regard to the mechanical and electrical work and theatres, what stage are each of those at? Are they 50%, 60% or 70% complete? It is important that this be clarified.

Mr. Phelim Devine

The 22 theatre rooms are at different stages. What Deputy Cullinane referred to before was the general operating theatres. Those are 11 of the 22 rooms. The mechanical and electrical services are complete in the ceiling. Most of the ceilings are in but they are not finished. Some of the light fittings are in and some are not. Some of the pendants are in and some are not. They are at different stages. None of those rooms has been offered to the design team for inspection.

Overall, are mechanical works and electrical works for the entire projects 70% complete? Are they 80% complete?

Mr. Phelim Devine

Mechanical and electrical for the whole job is probably between 80% to 90%. I think the mechanical would be more advanced than the electrical. The electrical is probably around 80% - I do not have the exact number - and mechanical is up around 90%.

Is all the back-up equipment in place for the electricity supply and so on?

Mr. Phelim Devine

It is all in place, yes. Our dual incoming and fully resilient back up supply is coming in from the ESB. That is all in place. We have power up through the building.

Mr. Devine mentioned delays earlier. With regard to the hospital's design team, as any project goes on, new plans are presented to contractors. In the past 12 months, how many new plans would have been presented by the team?

Mr. Phelim Devine

As in drawings?

Yes. I think Mr. Devine will accept with the design and the build, the plan is not frozen. It seems to be evolving as we go along. How many new sets of plans have been provided to the contractors?

Mr. Phelim Devine

For context, there are about 6,000 drawings in the project in total. That is the drawing set. They get revised for different reasons. Because it is a public works contract, we cannot set out particular products and systems. We can give out performance specifications and overall design intent but the contractor may say that it will use a particular product - a wall, ceiling or facade - and that causes drawings to be updated to reflect that. At the end of the project, we need to have a full and complete set of as-built drawings and drawings for regulation-----

I mean the number of drawings that the hospital would have presented in the past 12 months. If the hospital produces a new drawing, the contractor has to look at it and see how it has to be delivered. There may be a time delay and so on.

Mr. Phelim Devine

Very few new drawings have been presented in the last 12 months. There have been updates of existing drawings.

Mr. Phelim Devine

I know there were 100 new drawings issued in the past six months. That is a figure I do have. They were primarily for external works such as campus roads and so on, which the contractor is just about to commence. Some have started.

What about the design team work on mechanical and electrical services? Is that also changing on an ongoing basis?

Mr. Phelim Devine

There have been very few changes to mechanical and engineering drawings in the past year. It should be remembered that the drawing for construction are not issued by the design team for mechanical and electrical. They are issued by two mechanical and electrical subcontractors. They are responsible for the final co-ordination and then the four construction drawings that they build to. They refer to the design drawings and then they co-ordinate the services to meet the specification and the layout or the design within those drawings.

When something new or an update is presented, does that add to the time delay for delivery?

Mr. Phelim Devine

Not particularly, no. In most cases we do not believe it does that. I will give an example. A ceiling might have a grill position or there is a smoke detector. Because it is a hospital, there is signage, Wi-Fi, smoke detectors, hydrants, given it will be a fully sprinklered building, and nurse call text displays and all that has to be co-ordinated in the ceiling. In the final co-ordination stage that might have to move slightly. We also have cameras on every corridor. When that is taken that into account, things might move slightly and then a drawing is updated. In some cases, one smoke detector might be moved and because the drawings overlap because we have 25 drawings per level -----

At any stage in the past two to three years, has a major change occurred in design -----

Mr. Phelim Devine

There has been no material change to design of this project since 2018 when the GMP was agreed.

I assume some of the claims Mr. Devine is talking about are as a result of minor changes in drawings and then there is a variation to the plan originally presented.

Mr. Phelim Devine

BAM's claims are predicated on its belief that there is a change in design. We refute that.

So far, €14 million has been awarded.

Mr. Phelim Devine

Of that €14 million, €7 million is change. We have made some changes. There have been regulatory changes made for fire compliance and some for clinical practice and clinical compliance. BAM has been paid for that within the €14 million that has been determined to date.

Are any of the 16 claims Mr. Devine said add up to €573 million the result of variation in the design or in the plans presented?

Mr. Phelim Devine

BAM claim it is and we refute that.

However, €573 million is a substantial sum. Of those 16 claims, what is the highest claim for?

Mr. Phelim Devine

Mr. Gunning mentioned there is one in conciliation at the moment for over €100 million and it is one of those 16 claims.

It is for over €100 million.

Mr. Phelim Devine

Yes. It did not start off that way when it was in front of the employer's representative. BAM has since increased it in conciliation.

Why is that claim so high? That is a substantial sum.

Mr. Phelim Devine

We may have explained before. BAM can put in a claim for €500 million if it wishes; it decides what it wants to claim. It is claiming for a long period at a huge cost per week. It can do that. We cannot preclude it from doing so.

I presume when putting in a claim for €100 million that it has to produce documentation to support that claim.

Mr. Phelim Devine

Yes, that is correct. It has to substantiate that claim.

Has all of that documentation been submitted to the hospital?

Mr. Phelim Devine

Yes, it has been submitted. First, that particular claim has already been through the employer's representative. She determined that claim; I think zero extension of time on that particular one. BAM has put that into dispute and now it is in conciliation as part of the dispute management process.

What part of that relates to extension of time? Is it because of the number of additional days involved in delivering on it? How does BAM allege that? A claim of €100 million for additional time -----

Mr. Phelim Devine

I will not give the exact figure in the claim. It is just over €100 million. I can say that less than 1% or 2% is the materials involved and the rest is all time.

I will move on to something totally different, namely, forward planning and equipment. Mr. Devine said that the board has identified all the equipment that is required. Does that mean that if the board was to contact suppliers in the morning, the equipment could be made available? Is some of the equipment being installed at the present time?

Mr. Phelim Devine

I will break it down into two. All the equipment that requires to be built into the hospital has been procured. There is approximately €25 million of BAM-procured equipment as part of the contract. The pendants going into the hospital are an example of that. They are Draeger pendants. These are the first use of those pendants in Europe. We got them in them into the children's hospital and they are the latest technology. We also procured €18 million of MRIs, CTs, X-ray equipment, bedpan washers and macerators for the hospital. Some is manufactured and some is going into manufacture. As Mr. Gunning said, we are waiting for the final dates from BAM. It is BAM's responsibility to co-ordinate the insulation dates under the contract with the vendors who will actually fit out the hospital. There is another €60 million worth of group 3 or 4 equipment, which is loose equipment or plug-and-play that plugs into a data point or socket. We have procured about €4 million of that and €13 million is in procurement. We will substantially complete that procurement in 2023.

When you add up the cost of all of the equipment that is required for the hospital, what is the total bill for equipment and has that figure changed since the project started off as regards price variation?

Mr. Phelim Devine

The total equipment cost, if you include what is built into the contract that BAM has procured, is around €110 million. As a figure, we are looking at the moment and are forecasting approximately €5 million over budget, but we expect that to come back down. But, as I say, of the €85 million which we are responsible for procuring from the NPHDB, we have only procured €23 million to €24 million, comprising some €11 million in procurements, so we really have to wait. We are forecasting being a couple of million euro over budget.

I thank the witnesses. I will leave a minute at the end of my contribution to get an update on the Tallaght satellite and how that is progressing. If our witnesses cannot provide that here, they might forward to the committee a note on it.

Is there are state-to-state diplomatic element to resolving this? Royal BAM Group has a very good name internationally. We also had a Cabinet-approved new national maternity hospital announced yesterday. I got a text from a constituent last night asking to ensure we do not give that contract to BAM. This just cannot go on.

It sounds as though the company has just loosely walked off the site until this is resolved. I do not mean to say “walked off the site” as I can see that our witnesses are cringing at that and I must be careful with the language I use. The productivity is not what the NPHDB expected, however. The contractor is not delivering to date what the development board had anticipated it would deliver. The process has slowed down. Does the NPHDB believe that is deliberate or is it because there is a shortage of man and woman power? I hear our witnesses’ frustration but I do not hear any big picture steps to resolve this, aside from stating that it is unacceptable. Is there no way of escalating this from government to government? The way the NPHDB has presented the position here is that this is all BAM’s fault. I am taking our witnesses at their word on that. This is the biggest project in the history of the State. This is an international company and I presume that were somebody to google it in the months ahead, all that would come up would be the kind of news being presented to this Oireachtas hearing and to previous hearings. This is not good news for a company with that kind of international reputation yet it does not seem to bother it.

Mr. David Gunning

Should I respond to the Deputy’s comments?

Mr. David Gunning

Observations at the board meetings and at our discussions with our stakeholders, I can guarantee the Deputy, are that much of the discussion and the answer to these questions are talked about at great length. I just want to make that point.

There is a slight problem in the Dutch situation in that I do not believe that they have a government at the moment. I believe the Dutch Government collapsed recently. Again, that is a tiny point.

I updated the members earlier than that we were due to get a programme last Friday. That has not arrived but BAM has committed to providing us with a programme next week. We look forward to getting that. I hope that will be a platform for discussions and for delivering certainty on the timeline and that this can open up meaningful discussions between the parties again. It is reasonable, as we look at this delay and how this project rolls on, that for me at this stage, certainty on the completion date is critically important. If we can get that, it would be a significant achievement.

To get that, we need the programme but we also need to understand that the contractor will deliver to that programme, with the assurances and commitment. Whether that needs to come from senior BAM executives or even through the governmental channels, as the Deputy has suggested; I do not know. I believe that that is the way forward. We look forward to getting the programme, to seeing what it says, to satisfying ourselves and then we look forward to engaging with BAM to reassure ourselves that it will deliver on this. That is our goal.

Okay, the board has appeared before us previously with exactly this kind of narrative.

Mr. David Gunning

That is correct and we have been very closely engaged with BAM. I gave an answer to a question earlier about where we tried the very contractual route, with the writing of letters and all of that. I joined this project in late 2019 and I believe we spent a year going down all that very heavy contractual legal route and we did not feel that we are making much progress.

We then tried - as I made the comment earlier and if I do not get shot for saying it - a collaborative approach and we have been engaged for 20 months or so in trying to find a way through the differences. BAM has a different view of the world to the one we have. There is no doubt about that. Having engaged in that process, we have now exited it and have for the past few months been back to the contractual hardening of lines. This is only delivering what we see in front of us and what we are reporting to the committee. It would be timely and reasonable for us to engage again and for BAM to engage with us around this programme, assuming we get it next week, as the basis for a meaningful discussion on how we might resolve the differences between us and get certainty on the delivery of the project.

What might be involved if BAM delivers that document and what does Mr. Gunning anticipate that it will contain?

Mr. David Gunning

We need to assure ourselves that the programme is comprehensive, complete and addresses all of the key issues and activities. There is a tendency, with time pressure, that the concertina starts to squeeze in on some topics, for example. We know that certain activities take certain amounts of time and they cannot be collapsed. Others, if one throws more resources at them, can be done more quickly. We would need to reassure ourselves, as we look at the primary activities on the critical path, that we have reasonable time allocations in there for those. We would need to reassure ourselves in respect of all of the issues that have not been done because if BAM has been working at a particular level. If you are working at 67% or 70%, the 30% that you have not been doing get dumped into the future and we need to make sure that all that is there.

We also need to ensure there is appropriate time at the end for acceptance of all of the buildings, for us to assure ourselves that we have the quality of everything we need and that we then get to that point. That is the process we would normally go through and we have experts advising us on this who do that work on our behalf. We also have some of our own expertise from the people we have on our team who have built hospitals around the world. We can do that analysis, assure ourselves that this is real and then it is not just a plan. Anyone can write a plan but then one asks what is the plan to execute that plan? Is Mr. BAM going to hit all its deliverables, all of its milestones and all of its key activities in the first month? That is the next test.

If we got to the point where we had confidence like that, I believe we would be willing to discuss how we resolve the differences of a financial nature.

What happens if the NPHDB do not arrive at this position?

Mr. David Gunning

Well then we are in contract and are implementing and administering the contract from here until the hospital opens. What I am discussing here with the Deputy is moving outside of the contractual, the litigation and all that that will bring, into an alternative dispute resolution mechanism, effectively, to see whether we can find a solution to our differences.

Mr. Gunning says that BAM is not providing sufficient resources to deliver the hospital and to illustrate that point, BAM achieved 67% of its planned output in the past 12 months.

Where does Mr. Gunning think BAM’s resources are? Do they have the resources?

Mr. David Gunning

The situation is that we have 100% employment in the construction sector. I acknowledge that there are resourcing challenges. It is BAM's challenge to deliver the resources. It is required under the contract to make as speedy progress as it can and proceed regularly and diligently with the works. That is its obligation under the contract and it is up to it to get the workers on-site to get this job done. We are saying we do not believe BAM has sufficient resources and the progress it is currently demonstrating is evidence it does not have sufficient resources.

Is this on-site or in the country?

Mr. David Gunning

We only have visibility on our site and I could not comment on other jobs or projects. We know BAM is involved in some other large projects.

Can we get a brief update on the satellite centres?

Dr. Emma Curtis

The satellites in Tallaght University Hospital and Connolly Hospital are both operational. They are both functioning. The satellite in Connolly is functioning as an emergency care unit and as an urgent care centre, and the one in Tallaght is operating 24 hours a day because there is still an inpatient unit in Tallaght. There is no inpatient unit in Connolly and, therefore, it is not open during the night. Inpatients are transferred to the most suitable one of the three hospitals, depending on what is wrong with the child. Outpatient services are running as well in both Tallaght and Connolly. I work with the neurodevelopmental and disability service and we are doing all our clinics in the new build in Tallaght. It works really well and people really like it. It is a lovely environment and atmosphere. The quality of the rooms is good. All the services we need are there. There is the emergency care unit downstairs and there is a radiology department there that works. We still have a lot of liaison and links with Tallaght University Hospital because all our samples go to that laboratory and we also access CT and MRI imaging from there. The new build is going really well.

Is it working to capacity?

Dr. Emma Curtis

I do not know. I do not have the full figures on me. I know our service is doing all our clinics there. I am not sure about others. There are quite a lot of paediatric and other health and social care professional services but I would not have the data for that.

Are there waiting lists for either of the two satellite facilities?

Dr. Emma Curtis

Again, I do not have all of that data. That would be something for Children's Health Ireland, CHI.

We could certainly relay those questions to CHI which runs those centres.

I welcome our witnesses. From listening to the conversation, would it be possible to conclude that there is a need for an urgent high-level conference between the client and the contractor in this case, given the snags and delays that have taken place already, and from what we can gather, are likely to take place in the future? Is there such an imperative at the moment? Mr. Gunning has said his door is always open but I have heard that phrase many times in my life and it certainly does not mean the same thing to me as it does to a lot of people. Is it now imperative to have a high-level conference between the client and the contractor?

Mr. David Gunning

I will respond by saying there have been a number of these types of discussions between senior people from our board, myself included, and the contractor's senior team. These have included those at the most senior level and the head of UK and Ireland who is responsible for this project. We have had a number of conversations and they will continue.

What happens during these conversations? What progress is being made?

Mr. David Gunning

It is fair to say that we are in a difficult place at the moment and we have reported that to the committee. We have been saying to BAM that we cannot come before the committee and tell its members when this hospital is going to be finished. BAM controls all the resources and the programme and it holds the responsibility to tell us. We can then inform the committee.

For example, what excuses has BAM made in response and what recognition has the board made of changing circumstances and extra costs such as a change in building or fitting out materials in terms of cost? Have both sides agreed on the full extent of that? For example, in some building materials nowadays, and some fitting out materials as well, the increase has been in the region of 35% to 40%. Has that been recognised and allowed in the context of the discussions with a view to reaching a meeting of minds on the issue?

Mr. David Gunning

We have to find a better solution than the current impasse.

Yes. That is why I am suggesting that.

Mr. David Gunning

If representatives from BAM were sitting here today, they would be telling the committee that there are problems with the design and changes and all of that.

Mr. David Gunning

There will always be an element of this on any project. Let me give the Deputy the metric.

I will give Mr. Gunning another metric before he gives me that one. Hold on a second. What value has been put-----

Mr. David Gunning

That is what I am going to tell the Deputy.

-----on those changes by each side?

Mr. David Gunning

The employer's representative has determined 1,487 of BAM's claims. It was claiming €609 million. That is what it says all these changes, these 1,487 claims, are worth.

What does independent arbitration say?

Mr. David Gunning

It is not independent arbitration but the employer's representative has awarded the company €14 million. Less than 2% of its claim has been awarded.

Why was it not an independent arbitration?

Mr. David Gunning

This is a public works contract and it has all the elements of a public works contract. Why it does not have varies things is unknown. It has what it has and it has been live now for quite a number of years.

The question that arises from that is the following. Presumably, there was a prime cost sum initially provided for. In the event of there being X, Y, or Z changes, or knock-on changes over which the contract had no control, how are those resolved?

Mr. David Gunning

We are way past those at this stage. In the original Government approval, of the €1.433 billion, there was a contingency amount of approximately €30 million. That has been expended. That is an issue. To say that-----

Following that, did other issues arise that were not included in that evaluation which could have added, and will add, to the cost?

Mr. David Gunning

As I said earlier, we have submitted an updated capital request to the lead director of the HSE. This captures all the different cost categories and all the different costs we can see, budget and pull together so as to establish, based on a number of assumptions, a definitive cost to get this project to completion.

Would that reveal the difference between the client's position and that of the contractor?

Mr. David Gunning

Not in relation to the €750 million of claims. That is a separate matter.

Why is it separate?

Mr. David Gunning

We do not recognise that. We refute the contractor's entitlement to all these.

Mr. David Gunning

We are employed to robustly defend those matters.

However, the point about it is this. A contractor for any project, no matter where it is or how big or how small it is, may have particular unforeseen issues that arise and that contribute to the costs. Is Mr. Gunning saying that this is tough luck as the board has employed the contractor?

Mr. David Gunning

We are not saying that is tough luck. If the contractor has entitlements under the contract, they will be paid. If they have demonstrated those entitlements, they will have been paid if that work has been done. They have already been paid money under the contract for those types of issues.

What I am not putting in here is what we regard as exaggerated claims worth €750 million that we do not believe have a basis in fact.

The exaggeration depends, of course, on who is talking.

Mr. David Gunning

It depends on who is telling the story.

That is correct. It also depends on what level of arbitration went into balancing the one with the other. That remains to be seen.

Mr. David Gunning

Rather than using the term "arbitration", there is a conciliation process within the contract that is currently being used and each one of these claims goes through that process in sequence. We have gone through 24 individual conciliations already and, as members know, there are more than 2,000 to go. That is where we are at in terms of the progress made on dealing with these particular issues.

What about resolving the smaller claims for a start?

Mr. David Gunning

Good work has been done on that. Even during the moratorium, we agreed with the contractor to try to progress some of these smaller items.

The board is to receive a progress report, completion date, etc., next week. What has been the response from the contractor on that so far?

Mr. David Gunning

A lot of correspondence has been exchanged between the board and the contractor. The employer's representative, who is the formal contract administrator, has also exchanged correspondence with the contractor to inform and remind it of its contractual responsibilities to submit a current compliant programme, so that is already there. As I said earlier, I had a telephone discussion yesterday with BAM Ireland's chief executive, who said the company had not got the programme to us last week but its intention was to get it to us next week. That is what I have been told. Maybe I should not report informal conversations but that is the most up-to-date information and I am happy to share it with the committee.

Will it be a presentation or just some written document?

Mr. David Gunning

It is a submission. The contract sets out how this should work.

I am aware of that.

Mr. David Gunning

There will be further discussions and engagements-----

That is correct but in the event of-----

Mr. David Gunning

-----but there is a whole team on both sides. BAM has a programme team, the development board has a programme team and we have programme advisers. I have no doubt that once we get this, there will be a lot of engagement. We have done this multiple times already.

All is not yet lost. Is that true?

Mr. David Gunning

We will deliver this project. To be absolutely clear, this project will get done. We have challenges in front of us but I have no doubt we will overcome those challenges and deliver this project.

Exchanging papers on the subject next week is fine but much more than that is required at this stage, especially given Mr. Gunning's assessment of the matter in his presentation.

Mr. David Gunning

As I said, those escalations have happened and will continue to happen.

Does the board expect a response, other than the written response, from the contractors at this stage?

Mr. David Gunning

We have put our focus on the programme. The programme is where it is at. That is the magic that will unlock the plan from now until the end. That is our primary focus. We have constant engagement with the contractor on all aspects of the project. That is the nature of the engagement.

I am aware of that but Mr. Gunning should not forget that his opening statement indicated there were some considerable difficulties in the operation of the contract. I am not attributing blame to either side. I am merely saying there appears to be an issue there that needs to be resolved.

Mr. David Gunning

The door is open. I do not know how to put it slightly differently. We are obviously engaging, have been engaging and are willing to engage and re-engage with the contractor. The Deputy has that assurance.

I thank the board members for attending. I think we are all agreed on one thing, namely, the absolute importance of this project being delivered. By how much has the project gone over budget in real figures?

Mr. David Gunning

I will answer that in terms of the expenditure to date on the project being €1.325 billion.

What was the projected expenditure to date?

Mr. David Gunning

We should have been finished this project in November 2022, so we should have spent all the money and disbanded the development board by now. The issue we have is that delay costs-----

I am trying to figure out the facts as regards by how much the project has gone over budget so far, in millions.

Mr. David Gunning

The amount of money for the actual works the contractor is carrying out is fixed at €910 million. There is then some argument, as we said, about claims and various other matters. That is the amount, however.

Mr. David Gunning

The quantity surveyors advising the development board review all the works monthly, approve them and say we owe the contractor a certain amount of money. That is how it works on a practical basis, so we have not exceeded the contractual amount. Nor have we exceeded the €1.433 billion amount approved by Government. We are still within that approval limit.

Fine. The board tells us there are claims worth €750 million.

Mr. David Gunning

Correct.

Let us look at the worst-case scenario for a moment and assume the contractor would win its claim in all cases. What is the projected worst-case cost of the children's hospital.

Mr. David Gunning

I do not for a minute contemplate that outcome.

Hang on a second. I am not asking Mr. Gunning whether he thinks the board will win or lose. I am asking what the potential liability to the taxpayer is in the worst-case scenario. I need a figure.

Mr. David Gunning

Let met answer the question. I am going to disappoint the Senator on that. We have submitted a capital request to Government that sets out what we believe is the required money to deliver this project and it contains provisions for claims and various other matters, to an extent. There is, shall we say, a contingency sum in that. That is the envelope we believe will see this project completed.

How much is that?

Mr. David Gunning

I said earlier we are not in a position to share that information.

I know. I am giving Mr. Gunning the opportunity to reflect on why he is not prepared to share that figure.

Mr. David Gunning

We have discussed this already-----

I am giving another opportunity.

Mr. David Gunning

-----and I have written it in the opening statement. I do not need to repeat it again.

Will Mr. Gunning elaborate on what exactly he meant when he said he was going to disappoint me?

Mr. David Gunning

I meant I was not going to give the Senator a figure. I apologise if I was flippant in that response. The Senator asked me for a figure and we have said a number of times we are not providing those numbers.

Mr. Gunning is saying he is not prepared to give us the worst-case scenario cost to the taxpayer were the contractor to be successful in the vast majority of its claims.

Mr. David Gunning

We are robustly defending each and every one of these claims.

While I would expect the board to do that-----

Mr. David Gunning

That is correct and-----

-----I still think the board has a responsibility to plan for the worst-case scenario and to have a figure for it, bearing in mind this project is funded by the taxpayer.

Mr. David Gunning

I fully understand that. We have been engaged with our stakeholders We have provided what we call the capital request that addresses all those questions. It is in process and that will be the subject of, I presume, some kind of Government sanction on a timeline I do not know.

I am not an actuary but it seems that were the contractor to be successful in the vast majority of these claims, the final figure would be approximately €2.5 billion. The contractor will obviously make claims for which it has grounds. It would not spend money making claims worth €750 million unless it felt it had some grounds.

It creates a precedent though.

Is €2.5 billion reasonable?

Mr. David Gunning

We have made our submission to Government.

Does the board still have confidence in the contractor?

Mr. David Gunning

The contractor is under contract. It is required to perform in accordance with the contract and deliver, and I think it will to do so. I am confident it will deliver the project. We have to overcome these challenges and difficulties we have.

Mr. Gunning was scathing in his opening statement.

Mr. David Gunning

I am presenting a commentary on the challenges we are facing.

I have a point of order, if I can make it very quickly.

I respect Senator Conway, but we need to be very careful we are not putting figures out there that are not real figures. We all have a responsibility here. A figure was put out there that is not coming from the board. It is not a real figure.

It is just because figures can be put out which can then be misrepresented as real. I am just making that point.

I accept that. What I am trying to do is to get to the bottom of what the project is going to cost. Anyway, the witnesses are not going to say whether they have or do not have confidence in the contractor, so we will leave it at that.

As there are no other members looking to come in, I will do so. I walked around the outside of the site yesterday and I saw that the outer shell is clearly taking shape. A number of people are working outside in that regard, but the big challenge is we do not know what is happening inside. What we have heard this morning about the level of work and the fitting out that needs to be carried out is worrying. Coming into the meeting today, we still do not know how much it will actually cost, we do not know when the hospital will be built, we do not know when it will be fitted out, and we do not know when it will be opened. I think that is a fair summary of the information we were given.

It is welcome news that a meeting is due to be held on the compliance programme. It would have been helpful if we had heard about it before today's meeting. That is disappointing in itself. I do not think any of us here have a background in construction. My background was labouring at one stage. Perhaps Deputy Hourigan has a background in regard to some of the data. It is difficult for us to understand a build of this size. I do not think any of us have any real experience of something this large. The worrying thing, from what the witnesses are saying and what I am picking up this morning, is that they believe there are not enough workers on site and that the project is not moving ahead at the scale it should be. I presume that is down to the number of people on site. To give an example, I think most of the windows are in at this stage. As part of fire safety, ducting has to be moved and it may have to go back to the centre. The likes of the windows automatically opening in the event of a fire is one of the fire safety elements. The windows are in but I do not think the electrics for them has even started. I do not think a price has been given for the computerised system in relation to that. That is just one example. I am trying to get a sense of what is happening there.

Mr. Phelim Devine

I can pick up that question and clarify it. The automated smoke vents are all installed. Most of the wiring for them is in, although it is still a work in progress. The last phase of that is what we call integrated commissioning. It is where all the electrical systems are brought back and connected to the building management system that powers it and tells it how to act. If a smoke detector is activated or there is a fire situation, then they automatically open on sensors. That last bit of programming work does not get done until the last three or four months of the project. Most of the electrical wiring, all the conduit wiring and all the smoke vents are all installed.

Is Mr. Devine saying that all the wiring for the windows is done?

Mr. Phelim Devine

The majority of it is done. The facade is pretty much nearly complete. Most of those wires are pulled. They are in place and they have to be finally commissioned and tested. That is still to be done.

Is that element of the work well advanced?

Mr. Phelim Devine

The physical works are well advanced, but that is why we are talking now about room completions. In every hospital project you can have a programme but you have to complete rooms and complete areas before you can do the final building commissioning. Building commissioning is balancing the air systems, checking all the electrical systems, and checking the data points for all the computers and ICT from point to point back to the IT rooms. It is commissioning all the boilers and all that kind of stuff. That happens generally in the last year of the project. That has just started. We are about 5% into commissioning and we have a good length of time to complete that out. That is the last thing that gets done up to substantial completion. There is system commissioning, where you are commissioning the air handling and ventilation system or the electrical system, and then in the last four months, typically on a large project of this scale, you have the integrated commissioning, which is all the software integration. It is when a guy makes sure it is all connected and working.

What is a ballpark figure for the completion. Mr. Devine referred to the compliance programme. The sense is there are not enough staff doing that type of work. We would like to think there has been a huge amount of work done since the time when we were walking around there, but when we talk to people who are on site, the story they give us, as Mr. Devine said himself this morning, is that there are elements of the hospital where there are still wires just hanging down in terms of the electrical work. There is a huge body of work to be done. I am trying to get a sense of how the work will be done within a specific timeframe. You would imagine that the more workers on site, the quicker the work will be done. Is that the worry Mr. Devine has in regard to the contractors, that if they do not have enough people on site carrying out the work, it is going to drag on even longer?

Mr. Phelim Devine

That is correct. The contractor is responsible for providing sufficient resources to deliver the programme dates, all the activities Mr. Gunning talked about that make up the programme. Each one of those activities has to be resourced to meet that date to keep to the substantial completion date. If we do not have that, then the project can only slip out further. Unfortunately, the proof of that is that the contractor, on average for the past 12 months, has only made 67% of the planned progress. To us, that means there have to be more resources to deliver the hospital quicker.

What does Mr. Devine hope is going to come out of the compliance programme from his perspective? Is he going to get a sense that there will be additional staff? Are the contractors going to make up the ground that has been lost?

Mr. Phelim Devine

We have to get the programme first. We have to analyse it. Previously, when we got submissions, there is a whole process of our team and the BAM team sitting down and they present it back to us so we understand exactly what way it is. There is a basis of schedule where it sets out all the assumptions and how they are going to complete the project, and that is then represented back in the programme.

When the compliance programme comes out, will we have a better sense of when the job will be finished?

Mr. Phelim Devine

The compliance programme should tell us with certainty that if BAM is in the room, it will complete on this date. The date that is in the programme should be capable of being delivered by BAM.

Is Mr. Devine saying that next week when we get this compliance programme we should have a good sense of when this job should be finished?

Mr. David Gunning

After we go through the checks and balances.

I am stretching it out. I am asking because we have not known up to now.

Mr. David Gunning

We have to get it first. We have to make sure it is complete.

I am working on the basis we did not get it this week so we might get it next week.

Mr. David Gunning

If it is fully fit for purpose and compliant, it should give us a date. The first thing I will be flicking to is to see what is the date.

Okay. That is fine. Lastly, the witnesses referred to the €756 million in claims. Do we have any sense at this stage of what it will cost in legal fees? How much has it cost up to now?

Mr. David Gunning

Forgive me, but we can-----

Mr. Gunning can come back to us on it.

Mr. David Gunning

We can provide the committee with the numbers on what we spent in 2022. We have given that to the Committee of Public Accounts, so we can simply provide that information. If you go down the contractual route and this thing takes longer, longer means more expensive, more rows, more things going to the High Court and therefore that whole budgeting for legal fees is a bigger number. There is no doubt about it; it is not a pretty picture.

The worrying thing, and one of the members has commented on this, is that the longer this goes on, the more it will cost and, it would appear, the more money the contractor will receive. Maybe that is not fair to the contractor, but the figure relating to claims is nearly coming up to the figure of the original cost. That would suggest there is some strategy, in that the board is being forced down the road of a compensatory role in relation to the contractor. I do not know enough about it, but for a layperson who is looking in, there is something wrong. There is clearly something wrong when the original cost of the contract will nearly cost the same in claims. There is something wrong there.

Mr. David Gunning

Well they are-----

I know they are claims.

Mr. David Gunning

Yes.

However, there seems to be a strategy on the part of one party in this. That is a really worrying development in relation to how long this will go on.

Mr. David Gunning

In many ways, this is an element within the public work contract. That is the position. That is what it is. That is the contract that is in place with this project.

I presume BAM would have a different view in relation to that.

Mr. David Gunning

Absolutely.

Maybe at some stage we might get a sense of what it is or is not saying. I call Deputy Cullinane.

Mr. Gunning's opening statement was very hard-hitting and I do not think he should apologise for that because it is his job to make sure that the contractor does its job. He said its behaviour is unacceptable and he illustrated a number of examples, such as where there was only 65% progress and 35% compliance. I would imagine that relates to feet on the ground in terms of getting work done. In Mr. Gunning's view, is that a tactic by the contractor? Is that essentially what he is saying here?

Mr. David Gunning

I am reluctant to call out the contractor's behaviour-----

Mr. Gunning did so in his opening statement.

Mr. David Gunning

I said what I said in the statement. The Deputy is now asking me to put another layer of interpretation on that. I have no doubt that there is a strategy, as I have said. In relation to the 65% progress, these are BAM's measures. Of the plan it gave us, it is making 65% of that plan. We did not make these numbers up. This is the way it has-----

It is obvious from what Mr. Gunning is saying that one could use terms such as "go-slow", "slowing down the project", a "tactic" or a "strategy". From Mr. Gunning's perspective, it is certainly not providing the capacity that is needed to complete the job as quickly as it said it would. That is essentially what Mr. Gunning is saying.

Mr. David Gunning

It may have difficulties with that. The contract says that it must proceed regularly and diligently with the works. I do not believe it is proceeding as regularly and diligently as it should be.

Okay. There is frustration on everybody's part.

Mr. David Gunning

Correct.

I can hear the frustration coming through Mr. Gunning's opening statement, but I can tell him that the public is even more frustrated, because there are more costs and more time delays. Nobody can really have any confidence in any dates that we are being given at this point. On the one hand, there are all of these claims that now amount to €750 million. On the other hand, there is still no compliant programme and there is no completion date. Let us be honest, there is what we could characterise as a fistfight between the board and BAM. I am not saying who is right and who is wrong, but certainly, there is a lot of tension there and that needs to be resolved. We need to get on track and have some sense as to when this hospital will be built.

To go back to the capital request, as I said earlier, the current total programme cost is €1.733 billion. The capital for the hospital itself is €1.433 billion. Mr. Gunning is saying that he has asked for more money. He cannot tell us what the figure is. I understand this has to Cabinet so we may find out after that, but I would imagine the figure is substantial enough, given that the HSE and the Cabinet have to approve it.

Earlier, Mr. Gunning said that of that €1.433 billion, there is a contingency for claims. That is an element of it. When he says he is looking for more money, and he has requested that €1.433 billion ceiling to be increased to allow the project to be completed, does that involve increasing that contingency for claims?

Mr. David Gunning

Yes, let us go back to the famous PwC report of April 2019, or whenever it was. One of its comments questioned the appropriateness of a contingency of €30 million for a project of €1.4 billion or more.

What I am saying is that Mr. Gunning has asked for more-----

Mr. David Gunning

We have reviewed-----

I am not even going to waste my time asking for the figure-----

Mr. David Gunning

We have reviewed------

Mr. Gunning has told us why he cannot give us the figure, so I am asking if this means that the board is increasing what it sees as the contingency to deal with claims.

Mr. David Gunning

We think an appropriate level of contingency is required on a project.

Mr. Gunning says he is open to meeting with BAM, but what I am trying to figure out is there are all of these claims that can be dealt with in a number of different ways. One can use the processes, such as the employer representative process, conciliation or the High Court, which may sort some of this out, or parties can sit down and resolve this. I am asking if there will be an attempt for parties to sit down and resolve this once and for all in terms of the overall claims. Is that-----

Mr. David Gunning

Deputy Durkan criticised me for saying that our door is open. I confirm that of course we are available to meet with BAM and have those discussions. We have been having these discussions but we have not got-----

It has not been resolved.

Mr. David Gunning

Correct. These are not-----

Exactly. I am accept that.

Mr. David Gunning

These are not easy issues to resolve.

I accept that 100%. We are only asking. We are here where we are right now today.

Mr. David Gunning

I am confirming the Deputy's point.

How many of the claims have gone to conciliation?

Mr. David Gunning

Twenty four.

How many were adjudicated on?

Mr. David Gunning

Adjudication is a completely separate process-----

No, when they go to conciliation, what happens? Does the conciliator say that they come down in favour of the board or that they come down in favour of the contractor?

Mr. David Gunning

The conciliator makes recommendations-----

Okay, so of those recommendations-----

Mr. David Gunning

Let me just give the Deputy the scores, which I have.

Mr. David Gunning

They are in the table that the Deputy has. Some 11 of those 24 have been implemented and agreed on. They are done.

Were they found in favour of the contractor?

Mr. David Gunning

There is a mix of-----

What about the other ones?

Mr. David Gunning

The other ones are in a position whereby either party is allowed under the contract to say they do not agree with this. Then, it is up the-----

No, I am talking about the recommendations.

Mr. David Gunning

That is what I am saying.

How many of the recommendations that went to conciliation were found in favour of the contractor?

Mr. David Gunning

Again, there is a range of those, in terms of ups and downs-----

No, I am asking for a number.

Mr. David Gunning

I do not know, but I guess in some ways it does not matter-----

Mr. David Gunning

From a contractual point of view, once the party issues a notice of dissatisfaction, all that happened previous to that is finished. It is null, void and does not matter. It will then go to the High Court and a whole other situation will arise. The development board has issued notices of dissatisfaction on a number of them. I can get the Deputy the number that we have disagreed with, but I do not-----

Please, can Mr. Gunning furnish it?

Mr. David Gunning

-----have it in front of me.

Please, can Mr. Gunning furnish us with that number, because our time is very precious.

Mr. David Gunning

I will ensure we include that next time.

Okay. I appreciate that.

I just want to come back to Mr. Devine regarding the operating theatres. I want to make sure that whatever information I and this committee have been given is accurate. I know Mr. Devine will provide accurate information; I am not saying that he has not done so. Yet, when I spoke about the workshops that were established, Mr. Devine said they have been completed and they have reported. He then spoke of three options. Can he confirm that the workshops themselves provided one option?

Mr. Phelim Devine

Yes. The purpose of the workshops and engagement was to work on one option. We believe it is the worst-case scenario, which is to move the four grills in the 11 operating theatres.

What I am saying is that a change order was given to all of the contractors, including mechanical, electrical and BAM-----

Mr. Phelim Devine

Correct.

-----to go into a workshop and figure out how to resolve this and make a recommendation. I ask Mr. Devine to bear with me because it is important that we are accurate here. I want to be accurate. They have made one recommendation, which is to move the grills. They are making it very clear that this would be a substantial piece of work. It would not be minor; it would be substantial.

Mr. Phelim Devine

I will answer that in two ways. First, they were not asked to make a recommendation, because the contractors have no responsibility for the design of the operating theatres. They were asked to engage in workshops to understand if the grills moved position, which will be the decision of our design team, what the-----

I am reading it here from the change order. I am reading the change order.

Mr. Phelim Devine

The change order just says that they will engage in workshops to understand what the impact on the works will be if we move the grills. That is what the purpose of it was. It is not a recommendation. Those contractors have no design responsibility in terms of the position of the grills.

I accept that. What I am saying is that they have been asked to look at the scope of the works. My final question on this is regarding what they have reported. They have said that there is one option, which will be substantial, and it will be to move the grills. Can I ask-----

Mr. Phelim Devine

I will answer that.

No. I will ask about the other three options Mr. Devine has spoken about. Is one of those options to get a second opinion outside of STS?

Mr. Phelim Devine

We explained before that we have an STS opinion-----

Yes, the board has Arup's position.

Mr. Phelim Devine

----- which is the Children's Health Ireland, CHI, expert, and we have Arup's position, which is our design team. Arup is of a different opinion to STS.

I am asking whether one of the three options Mr. Devine mentioned is to seek a second or third opinion, essentially?

Mr. Phelim Devine

We are holding our design team to account in terms of that because they are ultimately responsible for the operating theatre design, not STS.

So the development board is not looking for a third opinion.

Mr. Phelim Devine

No.

Three Deputies are indicating. They will have seven minutes each. Deputy Hourigan is first, followed by Deputy Shortall.

For clarity, when the board next receives the compliance schedule from BAM, when BAM feels like providing it, will the board furnish that to the Minister and the committee once the board deems it is a relevant document, shall we say?

Mr. David Gunning

It submits a programme. That is what happens. Then, it goes to the employer's representative. The employer's representative is responsible for deeming its compliance or otherwise. Then, we-----

How long will that process take?

Mr. David Gunning

It depends on whether it is complete. It could take a number of weeks at a minimum.

Mr. David Gunning

However, we will be able to get through it pretty quickly-----

Mr. David Gunning

-----in terms of the key points, and I am talking about our discussions with BAM next week. We will have to take it as read to a certain extent.

Okay. My question was, when we can see that piece of information?

Mr. David Gunning

If we had it last Friday, I would be telling the Deputy the date the contractor is telling us.

Mr. David Gunning

I would be saying that today but I cannot.

Mr. Gunning will have that information next week. Will we receive that information?

Mr. David Gunning

I do not know what the-----

Mr. David Gunning

We will need to engage with our stakeholders and update them but I certainly would not have a problem-----

I am sorry; who are the stakeholders?

Mr. David Gunning

Now, of course-----

Does Mr. Gunning mean the Department?

Mr. David Gunning

I am talking about our governance line, which is the HSE lead director, the Department of Health and so on.

Mr. David Gunning

We will need to engage with them. From my own point of view, however, there is no reason we would not share this with the committee.

Mr. Gunning is unwilling to make a commitment to deliver that document.

Mr. David Gunning

I am not-----

I do not mean that in a kind of-----

Mr. David Gunning

I am not unwilling to do anything. I am more than happy to share it.

However, Mr. Gunning is going to check with his stakeholders before we can see.

Mr. David Gunning

I need to inform them of the content.

Okay, and then he would release it to the public or the committee.

Mr. David Gunning

It has been my experience so far that once it is in the committee, it is public.

Mr. David Gunning

We will share the information with the committee, of course.

Over the summer or on what date? Basically-----

Mr. David Gunning

I do not-----

-----what I am asking is that to get that information, do we have to have another session or can we just get sent the date?

Mr. David Gunning

If the Deputy wants us to send on the information and updates, I will agree to send that on, no problem.

Okay, great, that is perfect. That is fantastic.

Mr. David Gunning

If it is not compliant, however, we will not be giving the committee what is in the submission.

Mr. David Gunning

If it is not compliant-----

-----if the board does not deem it compliant, it will not tell us what-----

Mr. David Gunning

We do not deem anything compliant. It is the employer's representative who deems it compliant.

When the employer's representative looks at the document and does not deem it compliant, the board will not refer that information to the committee.

Mr. David Gunning

That would give rise to further engagement with the contractor with a view to getting a compliant programme. Rather than putting more dates out into the public domain, it would help everybody if we get something out there that is compliant, rather than dates that are not compliant.

Okay. Could Mr. Gunning undertake then to outline that for the committee as it is happening? What we would not like to happen is that this goes into a black hole and we do not even know if the board has got something next week when it is ready.

Mr. David Gunning

We will do that, yes.

On top of that, is Mr. Gunning still confident about the timeline? We talked about six months after substantial completion for the fit-out commissioning or however Mr. Gunning wants to describe it. Are we still sticking to that timeline?

Mr. David Gunning

I think the Deputy is referring to the operational commissioning by CHI. Again, CHI is not here. That is my understanding. It is still in that territory.

The board hands off. There is a reason why-----

Mr. David Gunning

That is not us.

There is a reason I am asking this question. At that point of substantial completion, the board takes its hands off the wheel and it is with CHI.

Mr. David Gunning

We are working very closely with CHI on the whole technical commissioning. It is sitting side by side us and as Mr. Devine talked about, we commission the air handling systems and theatres. We are working very closely with it on all this stuff. Then, it flips. CHI becomes the leader of the operational commissioning, which is getting it to work as a hospital, and we are there to support issues if something arises like a switch is not working.

Mr. David Gunning

We will be working with it very closely.

I completely understand that but Mr. Gunning and I both know that best practice is that 18 or 24 months before a patient walks in the door, the operational commissioning has a full schedule and people are looking at it and are on site. There is a reason I am asking this. Has there been an exploration of phasing within substantial completion? Has the board looked at that, whereby it might sign off substantial completion on a wing of the area and allow operational commissioning to begin?

Mr. David Gunning

No.

That has never-----

Mr. David Gunning

Again, we are focused on the contractual arrangements currently. Substantial completion is one day and then it hands over to CHI.

Mr. David Gunning

The CHI-----

Therefore, there is no phasing. It is a full handover.

Mr. David Gunning

That is a decision for Children's Health Ireland in terms of its opening on a phased basis or whatever, not ours.

I am not talking about opening. I was more interested in the operational commissioning.

Mr. David Gunning

We will just say that whatever the phasing or operational commissioning, it is entirely CHI's bag, not ours.

Mr. Phelim Devine

I will just add one thing. What we have built into the contract is that we get early access to a full 24-bed ward - the whole clinical engineering department - three months prior to substantial completion. That is to enable us to bring in some of the medical equipment that is plug-and-play and configure it to the network that is going in now.

When Mr. Devine says "access", does that count as substantial completion?

Mr. Phelim Devine

No.

Is it a full handover or is it just access?

Mr. Phelim Devine

No, it is not a full handover. It is just that we can bring-----

Okay, so, it is an insurance arrangement of some sort.

Mr. Phelim Devine

We can get our equipment team in to start configuring equipment; it is not a handover.

Mr. David Gunning

It is to identify the issues and get them resolved well in advance, even-----

I totally understand but I am asking specifically about handover.

Mr. Gunning pointed to the supplementary information he provided to us on the claims. As I only have one minute left, I seek a quick point of clarity on the 2,175 claims. The subtotal under disputed claims and adjustments comes to 1,278 and then there is that overlap of 997 claims. I acknowledge I am throwing a load of numbers at Mr. Gunning.

Mr. David Gunning

Jeepers.

I am just mindful that as we hopefully, at some stage, approach substantial completion, for many of these claims, the average run time would be 15 or 20 months or two or three years. The employer's representative determines whether a claim is valid. Is that-----

Mr. David Gunning

They make a determination of the contractor's entitlements under that.

Mr. David Gunning

It is not just validity but what they think it is worth.

Obviously, 2,175 is not the final number. We are probably looking at claims into the future. As for the number in the table Mr. Gunning has given to us, how many of those have actually commenced a process?

Mr. David Gunning

The process is all these steps, but as I said-----

I know, but from determined onwards.

Mr. David Gunning

From determined onwards, really, the next step is conciliation. A grand total of 24 have gone through conciliation of which 11 have been agreed. The remainder have gone on to the next process of being either accepted or not accepted and two have gone to the High Court.

I call Deputy Shortall.

I will pick up on the point made by the Chair about the legal costs. I am surprised Mr. Gunning does not have those figures.

Mr. David Gunning

If the Deputy gives me a second, I can flick through my ever-increasing folder and find it.

Mr. Gunning might come back to me at the end because I am very short on time.

Mr. David Gunning

Yes, I can give it to Deputy Shortall at the end, if she wishes.

Okay, and does he have the costs to date this year?

Mr. David Gunning

I will just make sure I have it here but I will certainly give her that information.

Okay. Am I right is saying that the original construction cost was €910 million?

Mr. David Gunning

That is the contracted construction cost.

Yes, the construction cost.

Mr. David Gunning

That is what is in the contract.

The board has spent to date €1.325 billion.

Mr. David Gunning

Of the €1.433 billion.

Mr. David Gunning

In addition to the-----

That is fine. I am looking for a breakdown of that expenditure to date. How much of that has been paid to the contractor?

Mr. David Gunning

The contractor has only been paid €910 million, or an element of the €910 million. That is what we paid.

What was the original construction cost?

Mr. David Gunning

It was €910 million.

It was €910 million. How much of that has been paid to the developer?

Mr. David Gunning

It was €810 million or something; I am sorry; it was €880 million.

The vast bulk of that original cost has, therefore, already been paid to the contractor. Is that what Mr. Gunning is saying?

Mr. David Gunning

No. To be clear, because there are apples and oranges here, the €910 million did not include any inflation.

Mr. David Gunning

The inflation is outside the contract.

The inflation figure was €55 million-----

Mr. David Gunning

I will give round numbers. Approximately €50 million in inflation has been paid to the contractor.

Mr. David Gunning

A sum of €830 million has been paid of that €910 million, to put it that way.

Okay. Mr. Gunning is saying there is a go-slow and there is still a huge amount of work to be done. The contract price was €910 million and the board has paid the contractor-----

Mr. David Gunning

Approximately €820 million.

Mr. Gunning said €830 million.

Mr. David Gunning

Yes, approximately.

Okay. That is an indication of the vast sum yet to be paid for the construction cost.

Mr. David Gunning

There is still a way to go on the construction to reach the €910 million.

Clearly, the original figure was way off the mark.

Mr. David Gunning

I am not sure I am getting the Deputy's point.

Did Mr. Gunning say that the original cost for construction that was to be paid to the builder-----

Mr. David Gunning

The contracted sum, yes.

-----was €910 million?

Mr. David Gunning

That is correct.

So, the €1.4 billion-----

Mr. David Gunning

That includes all of the other costs on top of the BAM cost.

I am looking for the different elements of that. There is the construction cost and then, if we add an additional €55 million for inflation, that brings us-----

Mr. David Gunning

That €55 million was outside the €1.4 billion. It was never included in it.

That is fine but if BAM has been paid €838 million, the vast bulk of the original price has been paid.

Mr. David Gunning

We are at 89% of the contract and we have paid 89% of the contract sum.

What percentage of the contract does Mr. Gunning estimate is outstanding?

Mr. David Gunning

We pay for works completed. That is it. We do not pay for anything else. There is a direct-----

I did not ask Mr. Gunning that. I am asking what element is not completed.

Mr. David Gunning

Approximately 11%. It is a straight calculation.

Will Mr. Gunning tell us about those other elements of the expenditure?

Mr. David Gunning

There are the costs of running the development board, the costs of the design-----

Will Mr. Gunning précis and give us the ballpark figures?

Mr. David Gunning

I can give the full breakdown of all of that. I have it in my folder. I can give it to the Deputy-----

Specifically, what was the original estimated cost for commissioning?

Mr. David Gunning

Commissioning is the contractor's responsibility and is included in the €910 million.

Mr. David Gunning

That is not within our €1.433 billion. It is separate.

Mr. Phelim Devine

That is the difference between the €1.433 billion and the €1.73 billion.

Where has that additional €325 million in expenditure gone?

Mr. Phelim Devine

That is CHI's. The €1.433 billion is what falls within the development board's remit while the €1.73 billion is everything. The difference between €1.73 billion and €1.433 billion sits with CHI.

Mr. David Gunning

That is CHI's budget.

With regard to the serious concerns there are about all of this, to what extent would this have been different if it had been a private client? What are the key elements of public contracts that have greatly hindered this project in coming in on time and on budget?

Mr. David Gunning

That is a great question and one that we ponder. Frankly, our job-----

In the two minutes that are left, will Mr. Gunning tell me the top three?

Mr. David Gunning

-----is to deliver the contract.

I am sorry; I did not ask that.

Mr. David Gunning

I am-----

I am sorry; I have two minutes left. I asked Mr. Gunning for his opinion. Given his experience with this project over recent years, what does he believe are the three main areas that are problematic from the point of view of how public contracts are awarded?

Mr. David Gunning

There are people in the Department of Public Expenditure, National Development Plan Delivery and Reform's Office of Government Procurement and------

Is Mr. Gunning going to answer the question?

Mr. David Gunning

I would rather not. That is those people's job.

That is extraordinary. We are not going to learn any lessons unless we are prepared to set out the problems.

Mr. David Gunning

We are more than happy to participate in learning discussions with various people and to try to get benefit from this but, frankly, our job is to deliver this project and this contract.

I know what the board's job is but I am also asking Mr. Gunning, based on his experience, what the problem areas with public contracts are.

Mr. David Gunning

I have heard the Deputy's question and I have responded.

Mr. Gunning is not prepared to answer it, however.

Mr. David Gunning

I am prepared to participate in these learning workshops and to learn from what we have got in a structured fashion. Our job is very much focused on delivering this project and this contract.

I do not believe that is a reasonable position to adopt.

Mr. David Gunning

We may have to differ on that.

Do I have some time left, a Chathaoirligh?

The Deputy has 30 seconds. Can she ask a question and get a response in 30 seconds?

It was recently reported that medical consultants were given an estimated date for opening. Can Dr. Curtis report on that?

Dr. Emma Curtis

I am sorry; this is in-----

It was recently reported that paediatric consultants were told that the hospital was likely to open in March 2025. Is that the case?

Dr. Emma Curtis

As I understand it, that is the case.

Who gave them that date?

Dr. Emma Curtis

I believe it is a working date.

Does Dr. Curtis know who gave it to them?

Dr. Emma Curtis

I believe it would have come from CHI but I do not know specifically. It is based on a view that the hospital cannot open in midwinter.

I thank the witnesses. The original cost was €910 million. The board has paid out €818 million, which represents approximately 89% of the total overall cost, and the building is 89% complete. That €910 million was not intended to include inflationary costs, which, if I am correct in saying so, amounted to €50 million.

Mr. David Gunning

That is correct. We provided a table in the pack that outlines the inflation payments that have been paid to the contractor, which come to almost €50 million.

Were there any additional unforeseen costs claimed above the €910 million, aside from those inflation-related costs?

Mr. David Gunning

As was mentioned in the opening statement, there are things outside of the €1.433 billion approved. These include the sectoral employment order, which has resulted in a claim. That claim has not been paid. It has just not been addressed. There are other items outside of it.

What do they amount to?

Mr. David Gunning

For example, if there were regulatory change and somebody decided that we needed to reconfigure something, that would not be included in the €1.433 billion. However, to date, only a small number of changes have been implemented from a regulatory point of view. It is fair to say that inflation is the big one, from a materiality point of view, with regard to costs over and above the €1.433 billion.

On the €910 million, the additional costs come to around €50 million.

Mr. David Gunning

The inflation is on top of the €910 million, yes.

Everybody here seems to be saying that we do not want to come down on any side vis-à-vis the board and BAM. Without meaning to belittle the situation, for context, it seems to me that if a contractor was working on a school or a house and there were questions about a low rate of productivity, progress reports not being provided for the four most recent months, insufficient resources being provided to the project, contractors not providing sufficient resources, only 67% of planned output being achieved, dropping as low as 34%, or 3,000 rooms having been supposed to be completed but only 27 having been completed, with those 27 having snags, you would call it and ask who could give that company any contract in the future. I have no reason to disbelieve what Mr. Gunning has been saying. I am just asking why we are afraid to call this as he has presented it. The board has lost control of the contract and the contractor.

Mr. David Gunning

On that assessment of the contractors, I do not disagree with the Deputy's summary. We face enormous challenges. Our job is to use the contract. What levers do we have in the contract? We have used every lever we have under the contract, including the retention of moneys and the application of liquidated damages. There are a number of instances of that. That is the scope of the leverage and the capability that the development board has available to it under the contract. As hinted at earlier by Deputy Cullinane and others, should we then go outside and look at alternative types of dispute resolution mechanisms? As I have said, we have been in that territory as well but resolving these issues is not straightforward. We are still in the discussion, if I can put it that way.

I need to bring the meeting to an end. I will make one additional point regarding the additional capital request to Government. The media are reporting that, as of yet, the Department has not received a formal request for additional funding.

That is not the understanding of the development board. Such a request has been sent in.

Mr. David Gunning

We have made clear that, according to the governance arrangement, the development board submits such a request to the lead director of the HSE. That is our responsibility and we did that on 31 May this year. That is when that happened. The media focus can move somewhere else.

Okay. That is no problem at all.

May I ask one short question? It relates to the vents and the famous grilles. What was the reason they had to be shifted in the first place? Why was that not spotted before the contract started?

Mr. David Gunning

To be very clear, no decision has been taken yet to move the grilles.

No decision has been taken.

Mr. David Gunning

No decision has been taken.

It is up in the air.

Mr. David Gunning

That is a nice way to finish. We will not be signing off on any operating theatres that are not 100% compliant with the requirements.

What was the specification?

We are into two questions now.

Mr. David Gunning

Engineers may differ. We have two world experts who do not quite see eye to eye on this point. We have a process to work through and will do so.

The Deputy asked permission to ask one question and then asked two.

I know, but I did not get in at all before that.

On a procedural matter, Mr. Gunning said that if he had got the complaint report last Friday, when it was due, he would be reporting on it today. I take it that if he gets the report next week, the committee will receive it within a week.

He put a caveat to that. Deputy Hourigan tried to climb down on that point. If Mr. Gunning will pass the report to the committee as soon as possible, it would be appreciated.

Mr. David Gunning

I certainly will.

I know there are challenges to go through. On behalf of the committee, I thank the representatives of the National Paediatric Hospital Development Board for their latest engagement with the committee in respect of the progress and development of the new national children's hospital. The engagement has brought a focus again to the range of important and ongoing challenges facing the development of the hospital, and the committee will continue to monitor the progress of this important project. We appreciate the attendance of the representatives for a couple of hours and wish them well in their work. I hope we can continue this conversation in the next quarter.

That concludes the committee's last meeting before the summer recess. I thank members and witnesses for their contributions to the committee. I also thank the backup staff of the committee and wish them a restful break over the summer. I also wish the members of the committee a pleasant recess. We look forward to continuing our work in September.

The joint committee adjourned at 12.33 p.m. sine die.
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