National Broadband Plan Contract

Under the National Broadband Plan (NBP) Contract, National Broadband Ireland (NBI) will roll out a high speed and future proofed broadband network within the State Intervention Area and will operate and manage this network over a 25-year period.

The contract is a detailed document which sets out the specific terms of the Government's NBP Contract with NBI in respect of the rollout of the high speed broadband network under the State intervention.

It is a commercial contract which contains commercially sensitive information relevant to National Broadband Ireland.

While the publication of commercial contracts would not be common practice, recognising the public interest and level of State subsidy involved in the National Broadband Plan Project, a redacted version of the NBP contract was published on 25 August 2020. Only those elements of the contract which could be demonstrated as commercially sensitive, or potentially impacting the ability of the Department or NBI to fulfil their requirements under the contract, were redacted.

As would be common with contracts of this nature, there have been a number of changes to the contract since it was executed. The Department has therefore reviewed an updated version of the contract incorporating all changes to the various schedules up to 7 January 2022 which is published below. Please note amendments have only been made to certain schedules. The objective of the review was to ensure that the maximum amount of information is published, whilst protecting commercially sensitive information, which if published could adversely affect the Project or NBI. Some of the Contract Schedules, or part of those Schedules, continue to contain commercially sensitive information which cannot be published.

The table below sets out the Contract Schedules and indicates where they have been fully or part published. The entire Contract runs to 3,600 pages of which 1,385 Pages comprises the Bidder Solution which was proposed by NBI during the procurement phase. As would be the case in all procurements of this nature, this is commercially sensitive documentation and would never be published. Of the remaining 2,215 pages, some 1,319 (c. 60%) are published with the remainder partially or fully redacted.

NBI has published a Contract Summary document on its website which is a useful guide in terms of explaining the various elements of the Contract and its application.

Please note that the Contract is subject to a change control procedure and elements may be updated over the lifetime of the project. The Contract below is as at 7 January 2022.

It should be noted that Schedules 3.10, 3.11, 6.6 and 13 are not used which is why they are not referenced below.

The Department of the Environment, Climate and Communications (DECC) oversees National Broadband Ireland’s (NBI) implementation of the National Broadband Plan (NBP) intervention under the terms of the Project Agreement dated 22 November 2019 between the Minister for the Environment, Climate and Communications and NBI Infrastructure DAC (NBI).

The Minister/DECC does not licence, authorise or otherwise oversee or regulate the actions of NBI in the implementation of the NBP under statute. Our role in the NBP, and that of the Minister, is outlined within the Project Agreement.

The Minister approves products and reference offers in accordance with the provisions and requirements of the Project Agreement. The Department does not publish approvals or decisions made under the Project Agreement. These are a matter of contract between the Minister and NBI and involve the review of commercially sensitive information pertaining to NBI's business.

Provisions relevant to Service Providers

Some provisions of the Project Agreement govern NBI's contracts/interactions with third parties:

• NBI's Reference Offers to Service Providers are governed by Schedule 2.2. These must be approved by the Minister before they are published, amended or updated
• NBI's Service Provider Terms must be "fair and balanced and not impose any undue or disproportionate requirements on small or medium sized Service Providers" (paragraph 7.1.1 of Schedule 2.2)
• Separately, conditions in the Service Provider Terms for "application for use of the Wholesale Products" must be "proportionate and justifiable" (paragraph 7.3 of Schedule 2.2)
• NBI must treat Service Providers on a non-discriminatory basis (Clause 19.2 and 36.1.3)
• NBI must apply equivalent conditions and provide equivalent Wholesale Products to all Service Providers in equivalent circumstances (Clause 36.1.4 and 36.1.5)
• NBI must charge all Service Providers the same price for a particular Wholesale Product in all circumstances (Clause 36.1.6 )

Issues Service Providers may have with NBI

Service Providers (and other parties engaging with NBI) should be aware that NBI has its own Service Providers’ Complaints process. Service Providers may also have recourse to ComReg's general complaints process and dispute resolution procedures, if applicable.

NBI will handle all issues directly with the Service Providers and it is envisaged that the Minister will only engage when this channel has been exhausted. Where Service Providers approach DECC with any issues regarding NBI's operation of the Project Agreement, we will treat them seriously and raise them with NBI as appropriate in good faith and in a timely manner. These issues can be raised directly with DECC by emailing BBserviceproviders@decc.gov.ie

Disputes between Service Providers and NBI

If issues cannot be resolved through engaging with NBI, the Project Agreement contains a Multi-Party Dispute Resolution Procedure (Schedule 6.3) to resolve disputes where appropriate. This procedure governs disputes involving the Minister, NBI and/or NBI Deployment DAC (a related company) and a "Related Third Party", which may include Service Providers. The Minister does not have any power to make a decision in a Multi-Party Dispute. Rather, the purpose of this procedure is for all parties to resolve a dispute by agreement. Please contact us to outline the nature of the dispute by emailing BBserviceproviders@decc.gov.ie

State aid

The NBP intervention is a State aid measure. There are limits under the Project Agreement regarding the amount of aid available, conditions for implementation of approved measures and uses to which aid can be put. The Minister will only approve products and reference offers that satisfy these requirements.

Memorandum of Understanding

The Minister for the Environment, Climate and Communications has entered into a Memorandum of Understanding (MOU) with the Commission for Communications Regulation (ComReg) in relation to the National Broadband Plan.

The Minister may request assistance from ComReg in relation to the NBP, such as advice on technical matters. The MOU sets out the process and activities to be followed when seeking this assistance.