Decades of top tier expertise

Extending to all forms of infrastructure, contract delivery methods and infrastructure market participants

Overview

Our experience:

  • builds on that gained by the firm’s founder, Owen Hayford, over 25 years at market leading top tier Australian and international firms
  • extends to all forms of contracting for infrastructure projects including traditional procurement, collaborative and relationship-based contracts (alliances, integrated project delivery, delivery partner model, managing contractor etc), operating franchises, facilities maintenance contracts and PPPs
  • covers a broad range of sectors including government, transport, energy, resources, water, defence, space, and social infrastructure
  • embraces the full project lifecycle including the planning phase, procurement, contract management, secondary market and issue resolution

Public Private Partnerships

Infralegal is advising Martinus Rail on its participation in a consortium that is bidding for the Systems, Stations, Trains, Operation & Maintenance (SSTOM) PPP contract for the new metro line to the Western Sydney Airport and Aerotropolis.

Owen advised a D&C Joint Venture on its participation in the Spark consortium’s successful bid for the PPP package on this mega PPP toll road project.

Owen advised Transport for NSW on the procurement of the Operations, Trains and Systems (OTS) PPP contract for this project, and the interfaces with the Tunnels and Station Civils (TSC) contract and the Surface and Viaduct Civils (SVC) contract

Other unique aspects of this projects included the innovative risk allocation arrangements for the upgrade of the existing ‘brownfield’ Epping to Chatswood Rail Line, and the first use of a Dispute Avoidance Board on a PPP project.

The PPP contract was awarded the 2015 Government Partnership Excellence Award by Infrastructure Partnerships Australia.

Owen led the legal team that advised the NSW Government on its $3.6b PPP project for the Waratah train. Owen helped RailCorp develop the PPP contract for this innovative project – the first time world-wide that the PPP model was used for delivery and maintenance of a train fleet to be used by a public sector train operator. Owen also advised RailCorp on:
– its strategy for the management of multiple claims by the train manufacturer, most of which were ultimately withdrawn or settled on terms favourable to RailCorp;
– a class action by Downer EDI’s shareholders in connection with the massive losses sustained by Downer EDI on the manufacture contract;
– various conditional waivers, to enable the trains to enter service and operate whilst the train manufacturer corrected various defects;
– a significant financial restructure in 2012, to enable Reliance Rail to draw down its existing bank debt facility notwithstanding significant concerns regarding its ability to refinance its debt in 2017/18;
– numerous modifications to the train requiring the consent of Reliance Rail’s lenders.

Owen advises the AustralAsia Railway Corporation, a statutory corporation established by the NT and SA Governments to facilitate this PPP project. Owen advised on the tender process for the 50 year concession, the development of a statutory access regime and other project legislation, the insolvency of the original concessionaire, the sale of the project by the receivers to a new concessionaire, and the change of control arising from the purchase of Genesee & Wyoming Inc by a Brookfield led consortium.

Owen advises RMS on each of these projects. Owen advised on the procurement of each PPP project between 2001 and 2004, and on subsequent equity transfers, refinancings, major variations, sales by receivers and other dealings affecting these projects.

Owen advised Central Highlands Water on options for new O&M contracts for various water treatment plants that are presently contracted under DBFO and DBO contracts that are nearing expiry.

Owen advised SUEZ on its governance strategy for the proposed upgrade to its Prospect Water Filtration Plant, which is operated under a PPP contract.

Collaborative Contracting

Owen led the legal team that advised RailCorp on the sole source procurement of a third tranche (stage 3) of 72 outer suburban rail cars. The unique $320m ‘risk sharing’ contract for stage 3 incorporated an alliance style payment and liability regime, whereas stages 1 and 2 were delivered under a more traditional fixed price contract. Negotiations for stage 3 occurred in parallel with a fast track arbitration process for significant dispute arising out of stages 1 and 2. A dispute avoidance board was instituted for stage 3. The collaborative style contract worked well, with stage 3 being delivered on time and under budget.

2008 – 2009

Owen prepared the initial drafts of the Alliance Contract used by the Transport Infrastructure Development Corporation for the Kingsgrove to Revesby rail quadruplication project – the largest and most complex component of the NSW Government’s Rail Clearways Program. This document became the TIDC’s template Alliance Contract.

2007

Advised RMS on the Alliance Contract for the Victoria Road Upgrade.

Advising Auckland Council on the amendment of its Project Alliance Agreement for the C3 (main stations and tunnels) contract to add the C7 (rail systems) and C5 (western line) packages

Public Transport Operation Franchise

Owen advised Transit Systems on its joint venture and subcontracting arrangements with UGL and John Holland for the South Australian Government’s Adelaide Metro bus and light rail operating franchise contract.

Owen led the legal team that advised a bidder on its 2018 tender to Transport for NSW for the contract to provide ferry services on Sydney Harbour.

Owen also advised another bidder on its tender for the original contract awarded in 2012 to operate and maintain the ferry service.

Owen advised Transit Systems on its bid for the operating franchise contract for Newcastle’s light rail, bus and ferry services.

Rail

Infralegal is advising Martinus Rail on its participation in a consortium that is bidding for the Systems, Stations, Trains, Operations & Maintenance (SSTOM) PPP contract for the new metro line to the Western Sydney Airport and Aerotropolis.

Owen lead legal team that advised Auckland Council on its 50% sponsor interest in the government procuring authority – City Rail Link Limited – and the proposed variation to the Project Alliance Contract for this NZ$4.4Bn project

Owen advised Transit Systems on its joint venture and subcontracting arrangements with UGL and John Holland for the South Australian Government’s Adelaide Metro bus and light rail operating franchise contract.

Owen advised the Barangaroo Delivery Authority on the Interface Agreement and the Co-operation and Collaboration Deed for the Sydney Metro Station at Barangaroo. The new station is to be integrated with the proposed new Central Barangaroo Development. Owen’s role also involved negotiating the pass through arrangements between BDA, Transport for NSW and the Central Barangaroo Developer to ensure all risks are passed through to either Transport for NSW or the Developer.

Owen advised Transport for NSW on the procurement of the Operations, Trains and Systems (OTS) PPP contract for this project, and the interfaces with the Tunnels and Station Civils (TSC) contract and the Surface and Viaduct Civils (SVC) contract

Other unique aspects of this projects included the innovative risk allocation arrangements for the upgrade of the existing ‘brownfield’ Epping to Chatswood Rail Line, and the first use of a Dispute Avoidance Board on a PPP project.

The PPP contract was awarded the 2015 Government Partnership Excellence Award by Infrastructure Partnerships Australia.

Owen led the legal team that advised the NSW Government on its $3.6b PPP project for the Waratah train. Owen helped RailCorp develop the PPP contract for this innovative project – the first time world-wide that the PPP model was used for delivery and maintenance of a train fleet to be used by a public sector train operator. Owen also advised RailCorp on:
– its strategy for the management of multiple claims by the train manufacturer, most of which were ultimately withdrawn or settled on terms favourable to RailCorp;
– a class action by Downer EDI’s shareholders in connection with the massive losses sustained by Downer EDI on the manufacture contract;
– various conditional waivers, to enable the trains to enter service and operate whilst the train manufacturer corrected various defects;
– a significant financial restructure in 2012, to enable Reliance Rail to draw down its existing bank debt facility notwithstanding significant concerns regarding its ability to refinance its debt in 2017/18;
– numerous modifications to the train requiring the consent of Reliance Rail’s lenders.

Owen advised Transport for New South Wales on the negotiation of an option to transfer the maintenance of the Sydney Growth Trains to the Auburn Maintenance Centre, which is presently used on a dedicated basis for the maintenance of the Waratah Train fleet under a Public Private Partnership contract.

Owen advises the AustralAsia Railway Corporation, a statutory corporation established by the NT and SA Governments to facilitate this PPP project. Owen advised on the tender process for the 50 year concession, the development of a statutory access regime and other project legislation, the insolvency of the original concessionaire, the sale of the project by the receivers to a new concessionaire, and the change of control arising from the purchase of Genesee & Wyoming Inc by a Brookfield led consortium.

Owen advised Stockland on the development of new contractual arrangements for its intermodal facility at Yennora. These include a Rail Infrastructure Management with an accredited operator of rail infrastructure to operate and maintain the rail sidings at Yennora on an open access basis, together with a Safety Interface Agreement and a Siding Connection Agreement with Sydney Trains and RailCorp, and commercial leases with tenants at the facility.

Advised Moorebank Intermodal Company on contractual rights and options for the delivery of various works required for the Moorebank Intermodal Terminal

Owen led the legal team that advised Stadler, a swiss train manufacturer, on its bid for the NSW Government’s New Intercity Fleet project. This was Stadler’s first bid in the Australian market. Owen’s role involved leading a multidisciplinary team that not only advised Stadler on its bidding strategy and tender documentation, but also on the establishment of its Australian subsidiary company and its joint venture with a local Australian manufacturer.

Owen advised the NSW Government on various issues relating to the administration and potential restructuring of the Design, Build and Maintain Contract for the Millennium Train fleet

Advised Victorian Government on procurement options for a new fleet of trains as part of business case, including how the alternative procurement options would interface with existing franchise arrangements

2012

Advised the Australian Rail Track Corporation (ARTC), the entity established by the Commonwealth Government to manage all track access arrangements on Australia’s interstate rail network, on:
– its historic agreement with the NSW and Commonwealth Governments under which ARTC secured a long term lease of the NSW interstate and Hunter Valley networks, and agreed to invest approximately $1.32 billion in Federal funding in the NSW rail freight network over a five year period;
– contracting strategies and pro-forma tender and contractual documentation for its multi-billion dollar Infrastructure Improvement Program
– its lease of the Victorian interstate rail network from the Victorian Government; and
– the establishment of an industry access code covering track access arrangements for Australia’s interstate rail network.

1998 – 2017

Owen was part of the team that advised the Commonwealth, NSW and ACT governments on the procurement process for a proposed high-speed rail link between Sydney and Canberra. After receiving detailed proposals from 4 proponents, the governments announced the Speedrail consortium as the preferred party and proceeded to a ‘proving up’ phase on the understanding that the project would be delivered at “no net cost to the taxpayer”. However, the process was ultimately terminated by the governments in December 2000 due to fears the project would require an enormous financial contribution from the governments.

1997 – 2000

Advised a consortium involving Barclay Mowlem and the US based Railroad Development Corporation, on its bid for the rail freight business of Westrail.

1999 – 2000

Advised a consortium lead by RailTex (an American railway operator) on its bid for the Tasmanian railway business of the Australian National Railways Commission.

1997

Road

Owen advised a D&C Joint Venture on its participation in a consortium bidding for the PPP package on this mega PPP toll road project.

2019-2020

Owen advised RMS on the procurement of this user-charge PPP project and on subsequent equity transfers, refinancings, major variations, sales by receivers and other dealings affecting this project. Very few claims against government. Very good deals for taxpayers; less so for the private sector equity investors.

Owen advised the Roads & Traffic Authority on the procurement of this user-charge PPP project and on subsequent equity transfers and refinancings.

Owen advised the Roads & Traffic Authority on the procurement of this user-charge PPP project and on subsequent equity transfers, refinancings, variations, sales by receivers and other dealings affecting this project. Very few claims against government. Very good deals for taxpayers; less so for the private sector equity investors.

Owen was a key member of the team that acted for the Brisbane City Council on the procurement of the $3.2 billion motorway grade road tunnel under the Brisbane River and CBD, the first local government PPP of its kind in Australia. 

Owen’s role was principally one of knowledge transfer. Having recently completed the Cross City Tunnel, M7 and Lane Cove Tunnel deals, Owen prepared first drafts of the RFT, Project Deed and other contractual documentation, and helped his Brisbane-based colleagues to understand the thinking behind the commercial positions adopted for those deals, so that the Clem Jones Tunnel could be swiftly procured in a manner well understood by the market. 

Among the industry awards that decorate this project is the Government Partnership Excellence Award from Infrastructure Partnerships Australia’s 2007 National Infrastructure Awards; Infrastructure Deal of 2006 by Project Finance International; Asian Infrastructure Deal of the Year at the Project Finance International Awards 2006 and Best Project Finance Deal of the FinanceAsia Achievement Awards 2006.

2004 – 2006

Provided strategic advice to Southern and Eastern Integrated Transport Authority on risk allocation and market engagement issues, to capture lessons learned from the Sydney toll road deals.

2003

Advised Transport for NSW on the procurement process for the design and construction of the new Nowra Bridge.

Defence

Owen led the legal team that advised the Department of Defence on the development and tendering of a long term $1 billion contract for the private sector provision of a wide variety of marine services at naval facilities across Australia and associated financing and leasing arrangements for the vessels and other assets that will be used by the contractor to provide the services. The innovative asset financing and leasing arrangements that Owen’s team developed ensure that the assets remain owned by the Commonwealth beyond the term of the services contract. This way, they can be leased to a future service provider, thereby enabling the services contract to be re-contested at appropriate intervals to ensure continuous improvement and best value for money.

2008 – Sep 2010

Advised a bidder for the Department of Defence’s Headquarters Joint Operations Command complex, the first PPP project undertaken by the Australian Government.

2004 – 2006

Advised DMO on tender and contractual arrangements for the supply and through life support of a replacement patrol boat fleet under either a Privately Financed (PF) or Direct Purchase arrangement (Project SEA 1444). The Department of Defence ultimately decided to purchase the boats under a traditional direct purchase arrangement.

2000 – 2003

Advised Defence on contracting strategy and related issues for the provision of through-life support for the Collins Class Submarines, incorporating alliance/co-operative contracting elements.

2002 – 2003

Advised the Defence Materiel Organisation (DMO) (Industry Division) on issues related to the rationalisation and restructure of the Naval Shipbuilding and Repair (NSR) Industry, including proposed long term strategic alliance contract for all future NSR work; integration of Australian Submarine Corporation (ASC) and through-life support work for Collins Class into rationalised NSR Industry; and corporate structure, ownership and governance arrangements for proposed private new private sector NSR industry entity.

2001 – 2003

Advising Thales on contractual arrangements with the Commonwealth and construction contractors for the design and construction of various civil works within the Garden Island Defence Precinct in NSW.

Thales operates the Royal Australian Navy’s major east coast refit, repair and maintenance facilities at Garden Island.

Energy

Infralegal is advising Manildra on its Enginerring, Procurement and Erection Contract, and associated Maintenance Services Contract, with General Electric for its new 2 x LM2500+ Cogen power plant using natural gas as a primary fuel.

July 2021 – Present

Infralegal is advising the NT Government on the proposed development of a 3GW Solar Farm near Tenant Creek in Central Australia and the transmission of the power to Singapore via a High Voltage DC cable.

2019 – Present

Owen led the multidisciplinary legal team that advised the Territory on the procurement of this landmark project that will connect NT gas reserves with the east coast gas market. Owen’s team helped the Territory devise a unique competitive process and commercial structure that enabled the Territory Government to break through traditional risk allocation models for gas pipelines and achieve a commercial outcome that few observers thought possible

Owen led the legal team that advised the City of Sydney on the negotiation of a contract with Origin’s Cogent Energy for the development of a precinct based trigeneration network to supply four city precincts with low carbon electricity, heating and cooling. Negotiated an innovative risk allocation for this complex project in a single preferred bidder environment. Secured IP rights and protected Council from claims when the project was aborted and subsequently downsized for financial reasons.

2010 – 2012

Advised Origin Energy on construction related due diligence in the acquisition of Eraring Energy Power Station from the New South Wales Government.

2013

Water

Owen led the legal team that provided strategic advice to the incumbent operator of the Sydney Desalination Plant on the NSW Governments proposal to tender a D&C Contract for the Expansion of the Plant and a new O&M Contract for the operation and maintenance of the expanded plant. Also advised on associated regulatory impacts.

Aug 2019 – Jan 2020

Advising SUEZ on governance strategy for the proposed upgrade to its Prospect Water Filtration Plant.

2020

Advising Central Highlands Water on options for new O&M contracts for various water treatment plants that are presently contracted under DBFO and DBO contracts that are nearing expiry.

2020

Procurement and Probity

Advising an unsuccessful bidder on potential avenues to contest the outcome of the tender process for this contract

Corrective Services NSW is responsible for the management of individuals who have been placed on court orders as provided by NSW Legislation where electronic monitoring represents a better solution than imprisonment for convicted offenders.

CSNSW tendered a contract for an integrated solution for the provision of electronic monitoring services, software and equipment. The initial term of the contract was to be a period of four years commencing on 28/02/2020, potentially followed by two extensions of up to four years each.

2019

Owen advised RTA on the development of the first Probity Deeds to be implemented on an Australian infrastructure procurement. The need arose out of the participation of related companies from the Leighton Holdings Group and the Bilfinger Berger Group in the bidding process for the Westlink M7 toll road project in Sydney. The approach developed for the Westlink M7 procurement process has since been refined and adopted on almost every major infrastructure procurement since, to address probity and competition issues arising out of not only the participation of related companies in competing consortia, but also the involvement of common subcontractors, investors, financiers and other providers and team members in competing consortia.

Issue and dispute resolution

Owen led the legal team that  advised Transport for NSW on its strategy for the management of multiple claims by the train manufacturer.  The ASX listed train manufacturer announced to the ASX losses of $440 million on the manufacture contract.  Transport for NSW settled all claims for an amount less than 1.5% of the original manufacture price.  The resolution of these claims also involved an arbitration, expert determination proceedings, two mediations and court proceedings.

Owen advised Transport for NSW on options for the resolution of claims under the Operations, Trains and Systems (OTS) PPP contract and the Surface and Viaduct Civils (SVC) contract arising out of poor performance by the SVC contractor

Owen has advised on the establishment of Dispute Avoidance Boards for various projects including Sydney Metro Northwest, OSCar (Stage 3), Port Botany Expansion and the Waratah Train.

Owen helped to develop the ‘swing-man’ dispute resolution mechanism which became the preferred deadlock breaking mechanism for most Australian alliance contracts.  This mechanism requires an independent expert to chose between the positions put to him by each alliance participant.  This encourages the participants to avoid adopting extreme positions, out of fear that the expert will prefer the less extreme position of another participant, which helps to maintain workable relationships after the issue resolution process concludes.

Other

Acted for Urbanest on its student accommodation and serviced apartment projects at Southbank in Queensland and North Terrace in Adelaide. Owen advised on the structuring of the projects, so that limited recourse project finance could be raised, the D&C contract, and separate supply agreements for bathroom pods and furniture fitting and equipment.

2008 – 2010

Advised the EPA on the tender process and contractual documentation to establish the NSW drink container deposit scheme.

2016 – 2017

Advised the Catholic Metropolitan Cemeteries Trust on how the new Crown Lands Management Act 2016 (NSW) will affect CMCT’s cemetery operations on NSW Crown Land, including CMCT’s charitable status. Advising on potential new contractual and statutory arrangements with the NSW Minister for Crown Lands.

Advising, on a pro-bono basis, the traditional land owners on their application for a grant to enable the upgrade of the iconic Wilpena Pound Resort in the Flinders Ranges.

Advising Thales on indemnities and liability caps/exclusions for its contract to manufacture and supply the Optus 11 satellite to Optus.

Advised a statutory company owned by the Northern Territory and South Australian Government on the exercise of its consent rights in relation to the purchase of Genesee & Wyoming Inc by Brookfield Infrastructure and GIC, the associated acquisition of the Australian business of GWI by funds controlled by MIRA and PGGM, and the potential impact of the sales on the Adelaide to Darwin rail project operated by an Australian subsidiary of G&W.

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