Metrolink – Latest Update – February 2024

Key Contacts: Kerri Crossen – Partner | Angelyn Rowan – Partner | Laura Mullen – Partner

Based on a number of updates published since our last article, which we have summarised below, it appears that the MetroLink project (the “Project”) is starting to gain some momentum.

1. Draft Railway Order – Oral Hearing

The draft Railway Order application was submitted to An Bord Pleanála (“ABP”) at the end of September 2022 and the statutory consultation period closed in early 2023.

ABP are holding an oral hearing into the application for a Railway Order. The oral hearing commenced on 19 February 2024 and is scheduled to conclude on 28 March 2024 (as outlined in the Oral Hearing Agenda issued by ABP).

TII anticipate a decision from ABP in respect of the Railway Order in Q4 of 2024.

2. Appointment of Multidisciplinary Client Partner Team

Transport Infrastructure Ireland (“TII”) appointed a multidisciplinary client partner team for the Project (made up of Turner & Townsend, WSP supported by O’Connor Sutton Cronin, Mace and PwC) who will provide, amongst other things, programme management, office services and will oversee all elements of procurement, design, engineering, safety, information management and sustainability.

3. Contract Packages

The intention is for the Project to be delivered in four core contract packages – through a public private partnership and three design-build contracts (see section 3.1 and 3.2 below).

In addition to the above, the intention is to have a series of separate contracts for advance works (contract series number M100 as set out below) and enabling works (contract series number M300).

In respect of the advance works, the intention is to have seven separate contracts for:

Utility diversions (M140 and M150, proposed form of contract — NEC 4 Engineering and Construction Contract):
Land access and demolition (M110, proposed form of contract – NEC 4 Engineering and Construction Contract);
Archaeology (M130, proposed form of contract – COE2 Standard Conditions of Engagement for Archaeology Services);
Heritage (M120, proposed form of contract – PW-CF3 Public Works Contract for Civil Engineering Works designed by the Employer);
Environmental monitoring (M160, proposed form of contract – PW-CF3 Public Works Contract for Civil Engineering Works designed by the Employer); and
Utility protection works (M170, proposed form of contract – NEC 4 Engineering and Construction Contract)

(together the ”Advance Works Contracts”).

The estimated overall value of the Advance Works Contracts is approximately €200 million. We have highlighted below some of the key updates regarding the contract packages since our last article:

3.1 Periodic Indicative Notice (“PIN”) – PPP Contract

On 11 September 2023, TII published a PIN regarding the MetroLink M500 PPP Contract (the “PPP Contract”) advising its intention to hold a further market consultation for the PPP Contract during the period prior to the anticipated call for competition.

The Market Update published in October 2023 provides that the purpose of the further market consultation is to inform the market of updates to the anticipated commercial approach proposed by TII for the PPP Contract and to seek feedback on the contractual and commercial aspects of the Project, including from potential lenders to the Project.

It is expected that there will be a focus on:

the nature and terms of the availability-based PPP;
any interests or concerns raised by potential investors and funders, including possible financing arrangements for the PPP Contract;
the nature and form of the expected Interface Agreement between the PPP Contract and the D&B Contracts; and
matters raised related to the performance of the three design-build contracts for the main tunnelling and civils works components of the Project (referred to as the M401, M402 and M403 contract packages (together the “D&B Contracts”)) that may affect the performance of the PPP Contract.

TII anticipates the publication of a contract notice for the PPP Contract in early 2024, with the issue of the tender documents to shortlisted candidates should the Railway Order for the Project be granted (as noted above a decision is expected in late 2024).

3.2 PIN – D&B Contracts

On 6 October 2023, a PIN was published in respect of the D&B Contracts proposing further consultation on specific aspects of the D&B Contracts.

Similar to the further market consultation intended for the PPP Contract (see above), the Market Update published in October 2023 provides that the purpose of the further market consultation is to inform the market of updates to the anticipated contracting approach proposed by TII for the D&B Contracts and to seek feedback on the contractual and commercial aspects of the Project.

It is expected that there will be a focus on:

the nature and terms of the proposed form of contract (i.e., NEC4 ECC Option C);
any interests or concerns raised by potential supply chain participants;
the nature and form of the expected Interface Agreement between the PPP Contract and the D&B Contracts;
arrangements for the tender procedure; and
matters raised related to the performance of the PPP contract that may affect the performance of the D&B Contracts.

The anticipated publication of a contract notice for the first of the D&B Contracts (which is noted as being the M401 contract) is 3 to 6 months after the publication of the anticipated contract notice for the PPP Contract (expected to be published in early 2024).

3.3 PIN – Advance Works

In November 2023, two PINs were published in respect of the intended Advance Works Contracts (one for the archaeology contract (M130) and the other for the remaining six Advance Works Contracts) which included a Market Consultation Information document and accompanying Questionnaire.

The update published in November provided that the purpose of the market consultation was to inform the market of the current approach and to seek feedback on the intended structure, anticipated scope of the works and proposed contract forms for the advance works. The market consultation day was scheduled for 22 November 2023, the deadline for receipt of responses to the Questionnaire was 15 December 2023 and the one-to one clarification meetings (with those parties who submitted a response to the Questionnaire) scheduled for between November 2023 to January 2024.

With regard to the anticipated timelines for commencing the tender process for the Advance Works Contracts, the Market Consultation Information document does not specify a particular timeframe in 2024 but rather notes that the prequalification stage of the tender process will commence prior to the decision on the application for the Railway Order being made, with the issue of the tender documents to shortlisted candidates should the Railway Order for the Project be granted.

4. Project Ireland 2040 – Prospects 2023/2024 – Ireland’s Major Infrastructure Project Pipeline (the “Prospects”)

On 19 September 2023, the Department of Public Expenditure, NDP Delivery and Reform published the Project Ireland 2040, Prospects 2023/2024 (Ireland’s Major Infrastructure Project Pipeline) (the “Prospects”), which sets out a pipeline for 50 of the largest individual projects that make up Project Ireland 2040.

A summary of the Project is included in the Prospects and includes amongst other details, specifics on the project timeline (noted as 2025 – early 2030s), cost range (noted as €1 billion+), current stage of project lifecycle, the next approval gate (noted as being Approval Gate 2 – Pre-tender Approval) and main contractor procurement (noted as Quarter 2, 2024).

5. The Infrastructure, Climate and Nature Fund

The Infrastructure, Climate and Nature Fund (the “Fund”) was introduced by the Government as part of Budget 2024. The aim of the fund is, amongst other things, to provide funds to support capital investment in times of economic downturn so as to avoid, insofar as possible, major projects having to “stop-start”.

When discussing the aim of the Fund, Minister Eamon Ryan referred to wanting to avoid mistakes made previously with the Project and noted that despite the Project being ‘ready to go’ in 2011 (having planning permission and funding secured), it was ultimately suspended due to cuts to the capital budget which resulted in significant exchequer funds being lost on the suspended project.

It is hoped that the introduction of the Fund will provide a defence to any monetary concerns which may be encountered by the Government, particularly in the event of a future downturn in the economy, during the course of the Project.

6. Latest Programme

As part of the market consultation for the Advance Works Contracts, an update was given on the programme for the Project (see extract below).

It should be noted that this programme is based around key dates for the Advance Works Contracts and does not take account of the four core contract packages. However, the extract below provides a helpful update on other key dates for the Project, around approvals required, planning and the construction/operation phases of the Project.