Road Resurfacing Contracts: Legal Challenges

Oral Answers to Questions — Infrastructure – in the Northern Ireland Assembly at 3:00 pm on 22nd November 2021.

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Photo of Jonathan Buckley Jonathan Buckley DUP 3:00 pm, 22nd November 2021

5. Mr Buckley asked the Minister for Infrastructure for an update on the number of legal challenges affecting road resurfacing contracts. (AQO 2771/17-22)

Photo of Nichola Mallon Nichola Mallon Social Democratic and Labour Party

Earlier this year, my Department received legal challenges preventing the award of resurfacing contracts in four council areas. In my statement to the House on 15 June, I indicated that officials were working at pace to develop a new interim procurement strategy for resurfacing contracts consisting of term contracts supplemented by one-off contract packages. That strategy has been finalised following a pre-market engagement exercise that took place over the summer.

The strategy consists of four phases with six new-term contracts in each. I am pleased to announce that my Department published for tender the first phase last week, and that includes the majority of the four areas impacted by the legal challenge. The Department anticipates being in a position to award the contracts in January to allow much-needed resurfacing to resume in those areas. Work on the next phase of term contracts is at an advanced stage with this and subsequent phases, which will follow at three-month intervals. In addition, two one-off contract packages are being tendered and a number of others are being prepared.

I recognise that there has been historical underinvestment in the maintenance of our road network for a significant number of years and that many rural roads are in need of repair. The Member will be aware that, in response, I allocated £12 million of my 2020-21 capital budget to a roads recovery fund, of which £10 million was specifically directed towards rural roads. Following the success of last year’s investment, I increased that funding to £17 million, of which £15 million is specifically directed towards rural roads, which is a 50% increase on last year.

Photo of Jonathan Buckley Jonathan Buckley DUP

I thank the Minister for her answer. Legal disputes sound boring, but this is deeply serious. This is about the taxpayer in County Tyrone, County Down and elsewhere being unable to get substandard roads resurfaced. For many, the traffic-calming in those areas has become the potholes, and it will become even more worrying as we reach winter with the damage that that can inflict on our rural road network.

Photo of Patsy McGlone Patsy McGlone Social Democratic and Labour Party

Does the Member have a question, please?

Photo of Jonathan Buckley Jonathan Buckley DUP

How has the Department arrived at a place where we have so many legal disputes ongoing? Will the Minister commit to a judge-led inquiry to ensure that we never have so many legal challenges affecting our rural road network across Northern Ireland?

Photo of Nichola Mallon Nichola Mallon Social Democratic and Labour Party

The Member raises an important point. In general, Northern Ireland construction has a significant number of legal challenges to public procurement competitions. For road contracts, it is an extremely competitive and specialist market with little opportunity to work for private clients. Unfortunately, legal challenges of many forms have been part of that area of work for over 10 years. However, following a legal challenge preventing the award of asphalt resurfacing contracts in four areas, the Department has considered legal advice and has been working at pace to develop and implement a new interim strategy for asphalt resurfacing term contracts. It has made sure to have ongoing engagement with legal advice so that contract documents are robust. While it is not possible to completely eliminate the risk of legal challenge, I hope that the new approach, which offers an increased number of term contracts and one-off packages, will provide the market with greater opportunities to bid for the work.

The Member will also be aware from when I made the statement in the House in June that I have also initiated an independent investigation, and I expect to have an update on that next month.

Photo of Pádraig Delargy Pádraig Delargy Sinn Féin

As Mr Buckley referred to, there has obviously been a huge backlog and a huge impact because of the legal challenge, particularly in Newry and mid-Ulster and in my constituency in Derry. Those areas have now gone for a year with no progress. I think that I am right in saying that you have clarified that the work will begin in January. Will it be accelerated to address the backlog?

Photo of Nichola Mallon Nichola Mallon Social Democratic and Labour Party

I thank the Member for his question, but I have to point out that it is not the case that no work has been carried out. Ongoing maintenance work has been carried out; in fact, the 50% increase in the rural roads fund has been able to roll out and is not impacted by any of the legal challenges. I hope that that provides some reassurance. Officials are working at pace to go out to tender to ensure that we get the resurfacing projects on the ground as quickly as possible.

I share the Member's frustrations. I did not anticipate a legal challenge. The fact that there is a legal challenge has meant that that course of action has had to be taken, but I have been clear to officials that we have to work at pace to make sure that we get those resurfacing schemes in your constituency and others on the ground at the earliest opportunity, while making sure that, when we devise the new interim strategy, it is as robust as it can be to protect against any further legal challenges.

Photo of Dolores Kelly Dolores Kelly Social Democratic and Labour Party

Since the Minister took over the portfolio, she has had huge problems to fix. If it is not MOT lifts, it is legal challenges or the collapse of the institutions for three years, when no decisions were made. Will the Minister confirm whether she has received adequate financial support from the Minister of Finance to fix all the problems with infrastructure, particularly our road network maintenance?

Photo of Nichola Mallon Nichola Mallon Social Democratic and Labour Party

It is abundantly clear that we need to increase investment in the structural maintenance of our infrastructure: pavements, roads, cycle paths and public transport. I have been consistent in making that point. For road maintenance, the recommendations contained in the Barton report and the Northern Ireland Audit Office report broadly confirmed the need for much higher levels of investment, with £143 million per annum — that was based on 2018 prices — being identified as the minimum amount that we should spend on structural maintenance activities such as resurfacing, surface dressing and structural drainage. It is also clear that not spending at that level can often represent poor value for money, as repairs in settling claims inevitably cost more in the longer term. The truth is that budgetary constraints mean that we cannot do all that I or members of the public or elected representatives would like. Our ability to increase the level of structural maintenance not just in roads but across our transport network and our capacity to deliver it is directly linked to the resources made available to my Department.

Photo of Rosemary Barton Rosemary Barton UUP

Minister, you spoke about increased budgets for rural roads. In the west, rural roads are in a dreadful condition.

Only two thirds of all potholes are mended. We are left with a third that go unmended. When will basic contracts be put in place so that there will be adequate funding for the maintenance of those roads?

Photo of Nichola Mallon Nichola Mallon Social Democratic and Labour Party 3:15 pm, 22nd November 2021

I thank the Member for her question. What we are dealing with is the result of years of underinvestment, which began under the stewardship of your party colleague Danny Kennedy when he held the portfolio and huge cuts were forced on him and his Department. The outworkings of that are coming to pass, because not only was there not enough investment but the fact that we are not investing in our road network means that it is deteriorating further. I continue to make the case for funding at the Executive.

As I outlined in a previous response, we hope to be in a position where contracts are awarded in January. We are very focused on doing what we can to make sure that the contracts are in place, the contract documents are robust and, importantly, we can get the resurfacing and asphalt schemes on the ground as quickly as possible.

Photo of Patsy McGlone Patsy McGlone Social Democratic and Labour Party

There is time for a brief question.

Photo of John Blair John Blair Alliance

I thank the Minister for the clarification she has been able to give so far on the current legal challenges. When will the independent investigation that is under way into the botched procurement process be published? Will any aspects of it be redacted?

Photo of Nichola Mallon Nichola Mallon Social Democratic and Labour Party

As the Member will be aware, when I became aware of the issue, I came to the House to make a statement, because I viewed the matter as very serious and wanted to be open with Members. I intend to take the same approach as I did when dealing with the DVA issue, when I initiated independent investigations and then published the reports on my departmental website. I intend to take exactly the same course of action. The investigation team has been appointed. The work has commenced. The investigation team has indicated that it will provide an update next month. Once I have that update, I will be happy to update Members right across the House.

Photo of Patsy McGlone Patsy McGlone Social Democratic and Labour Party

That ends the period for listed questions. We will now move to 15 minutes of topical questions.