Managing The risks of changes to fire and

life safety requirements while a tunnel is

being designed and constructed - the role
of Regulatory Baseline Reports in project
contracts.

Adj. Assoc. Prof. Arnold Dix

Barrister & Scientist
Executive Vice President: International Tunnelling
Association
Visiting Professor Tunnel Engineering Tokyo City University
Japan
Underground Works Chambers www.uwchambers.com
Email: counsel@arnolddix.com Innovation in Tunnels
March 2021 Webinar
 Summary:

1. Fire Life Safety Approvals are often problematic due to changing local
regulatory requirements

2. Modern Contracts can help manage these risks by including details of the
local fire and life safety in a regulatory baseline and providing commercial
flexibility if requirements change after contracts are awarded

3. Regulatory Base Line Reporting on local fire and life safety requirements
can also provide greater commercial and technical fairness in obtaining
project fire and life safety approvals
Regulatory Uncertainty
Largest Risk to Tunnel Projects

Usually bigger than ground risk

Fire Safety Approvals are one of the largest project uncertainties

-design implications
-approvals implications
-delay & cost risks
- politics
-liquidated damages
Fairness
• Governments have special duties of fairness imposed on them by Law

• It can be unfair if Governments allow organizations, authorities and agencies –

under their control or influence – to be vague or arbitrarily change the regulatory
burdens on an Underground Works project (construction and Operations)

• Governments (and their agencies) are ultimately responsible for public safety
standards AND they can & should administer those standards responsibly

• If Fire Safety requirements vague? change and/or are inappropriately varied there
should be accountability for the consequences.
Your Role
• When you are involved EARLY in project concept development RAISE certainty of Fire
safety regulation as a Tunnel Safety issue.

• USE YOUR EXPERIENCE & EXPERT JUDGEMENT

• Give Examples
• Solit – Annex2, UpTun WP2 D251, NFPA 502 (later editions)
• Hydraulic system encourage specification of pipes, NFPA 750, EN 14972, Local
• Acceptance Criteria
• Commissioning & Acceptance Testing

• Often clients / Lawyers / Bankers will not have thought about this. (They are not SME’s)

• Use your position as an informed technician SME to help Lawyers understand

SPECIFICALLY what will make our projects safe.
Assume Thought Leadership
• Recommend that a standards and administrative measures be
included in the project documentation that define fire safety
requirements and how they are measured and approved.
• Eg
• NFPA 502 2017+
• PIARC Fixed Fire Fighting Systems in Road Tunnels : Current Practices and
Recommendations 2016
• Water Mists in Road Tunnels – State of Knowledge and provisional assessment
elements regarding their use CETU 2010
• Approval Process
• Verification Process
• etc
Fire Safety Base Line
• By clearly stating the regulatory “base line” there becomes greater
commercial, design, commissioning and operational certainty.
Precedent – Advanced Risk Allocation

• Sophisticated Ground Risk Allocation becoming the norm.

• ITA - FIDIC Emerald Book, 2019 Edition – Geotechnical Baseline

Reports

• Now adopted by the World Bank

How does it work?

Trigger for Intervention

• approvals schedule

• Schedule of baseline (anticipated fire safety regulatory requirements)

Contractor
• expected to do jobs they tendered in accordance with
the agreed schedule of requirements and approvals
DAB – Dispute Avoidance Board
• Disputes can be referred to a DAB
Regulatory Baseline Report
• Describes the fire and life safety regulatory requirements that serve
as the basis for the execution of the Project
• Drives design and construction approach including approvals
sequencing.
• Sets the allocation of risk between the parties for the described
regulatory requirements
RBR
• Closely describes the basis for approvals for construction of the
tunnel and its operation.

• Is not a warranty about regulatory requirements – it is just a factual

position against which time and money can be adjusted
RBR
• If RBR on fire safety regulatory conditions are encountered,
contractor must meet its schedule and technical deliverables
• If regulatory conditions are not as expected, and fire safety
requirements change - time and renumeration can be adjusted
Time for Completion
• Completion schedule has a very high priority
• Milestones are anticipated as part of contractors proposal
Extensions
• Change in regulatory requirements
• Exceptionally adverse regulatory requirements
Price
• Accepted contract amount for works
• Contractor obliged to do all things necessary for proper execution of
works for that price
• Only actual additional costs incurred are recoverable if Regulatory
conditions encountered outside RBR
Notice
• Regulatory requirement issue
• Notice as soon as practicable
• Set out reasons regulations not according to baseline
• At the heart of the RBR risk apportionment concept is the delay and cost
provisions which ensure if the Contractor encounters chages to fire and life
safety regulatory conditions that will have an adverse effect on the
progress or increase the cost of the execution of the Works and they are
not described in the RBR….
then …..to the extent that the Contractor suffers delay and/or incurs Cost due
to these regulatory imposts the Contractor shall be entitled to payment of
such Cost and an extension of time.
Conclusions
• The adoption of Regulatory Base Line Reports for fire and life safety
requirements marks a critical step change in global recognition of the
importance of regulatory risks in subsurface construction projects.
• Contractors must be rewarded for effort and held accountable for
incompetence.
• Employers should gain the benefit of transparent risk sharing including
reduced cost for improvements to regulatory regimes.
• Tunnels will be safer if the regulatory requirements are more carefully
described.
• Unfair risk allocation, especially in the area of fire and life safety, can
severely stress commercial aspects of a project to the detriment of tunnel
safety.
• Regulatory Baseline Reports are a form of modern fair contracting
 Handouts
REGULATORY BASELINE REPORTING: THE CASE FOR QUANTIFYING EXPECTED
REGULATORY COSTS AND DELAYS IN A BASELINE REPORT – LESSONS IN CROWN
UNFAIRNESS FROM AUSTRALIA BY A. DIX
International Journal of Civil Engineering and Technology (IJCIET)
Volume 11, Issue 08, August 2020, Article ID: IJCIET_11_08_006
Available online at
http://www.iaeme.com/IJCIET/issues.asp?JTypeIJCIET&VType=11&IType=8
ISSN Print: 0976-6308 and ISSN Online: 0976-6316

Expert Report for the Victorian Coroner: ‘The fatal Burnley Tunnel crashes Melbourne,
Victoria, Australia, Incident – 23 March 2007‘, The report was made public in 2013
following the finalisation of all Court proceedings.