I would like to obtain (i) an electronic copy of the RSPA together with (ii) any Option Notices and additional documents relating to the RSPA Option Units
Request ID: FOI-0198-2425 Date published: 10 May 2024
You asked
Dear TfL,
I make this request pursuant to The Freedom of Information (FOI) Act 2000 (as amended) (“FOIA”).
I'd like to obtain an electronic copy of the documents related to the contract for the provision of the rolling stock and depot for the Crossrail Project, the Rolling Stock and Depot Provision Agreement (“RSPA”), awarded by Transport for London (TfL) to Bombardier Transportation UK Ltd.
1. I would be grateful to receive copies of the following documents RSPA documents:
• RSPA Contents List
• RSPA Volume 1 Clauses 1 to 64
• RSPA Volume 2 - General Schedules A1 to A4
• RSPA Volume 3 - General Schedules A5 to A16
• RSPA Volume 4 - Units Schedule B1
• RSPA Volume 9 - Units Schedules B3 to B5
• RSPA Volume 10 - Depot Schedules C1 to C2
• RSPA Volume 11 - Depot Schedules C3 to C9
• RSPA Volume 12 - Operations Schedules D1 to D3
• RSPA Volume 13 - Finance Schedules E1 to E13
I am particularly interested in receiving Volumes 1 and 13.
2. In addition, I would be grateful to receive electronic copies of the following additional RSPA documents:
• any Option Notices issued under the RSPA for orders of Option Units since contract commencement;
• any Option Unit Changes issued since contract commencement;
• any contractual amendments to the RSPA since contract commencement which extend the Option Expiry Date; and
• any contractual amendments to the RSPA since contract commencement which amend the Option requirements, including the Option Order, Option Period, Option Units or Option Price.
There is a clear public interest in Transport for London (“TfL”) and its subsidiary companies (including Crossrail Ltd) providing the information requested.
We remind TfL of the importance of acting transparently and openly with regard to the procurement of rolling stock. There is a clear public interest in public authorities demonstrating to the general public that they are acting in a manner which is fully transparent and non-discriminatory when placing rolling stock orders, and that they are acting in full compliance with the relevant public procurement laws. The relevant public procurement laws cover both tenders for new rolling stock and also amendments to existing contracts originally tendered under a public procurement law framework. I therefore consider that both of the requests above are legitimately made under the FOIA.
We look forward to receiving the information requested promptly. I have also submitted this request via email to [email protected].
We answered
TfL Ref: 0198-2425
Thank you for your request received by Transport for London (TfL) on 16 April 2024 asking for information about Crossrail. This response replaces the version sent a few minutes earlier. I apologise for any inconvenience caused.
Your request has been considered in accordance with the requirements of the Freedom of Information Act and our information access policy.
Specifically you asked:
I'd like to obtain an electronic copy of the documents related to the contract for the provision of the rolling stock and depot for the Crossrail Project, the Rolling Stock and Depot Provision Agreement (“RSPA”), awarded by Transport for London (TfL) to Bombardier Transportation UK Ltd.
1. I would be grateful to receive copies of the following documents RSPA documents:
• RSPA Contents List • RSPA Volume 1 Clauses 1 to 64 • RSPA Volume 2 - General Schedules A1 to A4 • RSPA Volume 3 - General Schedules A5 to A16 • RSPA Volume 4 - Units Schedule B1 • RSPA Volume 9 - Units Schedules B3 to B5 • RSPA Volume 10 - Depot Schedules C1 to C2 • RSPA Volume 11 - Depot Schedules C3 to C9 • RSPA Volume 12 - Operations Schedules D1 to D3 • RSPA Volume 13 - Finance Schedules E1 to E13
I am particularly interested in receiving Volumes 1 and 13.
2. In addition, I would be grateful to receive electronic copies of the following additional RSPA documents:
• any Option Notices issued under the RSPA for orders of Option Units since contract commencement; • any Option Unit Changes issued since contract commencement; • any contractual amendments to the RSPA since contract commencement which extend the Option Expiry Date; and • any contractual amendments to the RSPA since contract commencement which amend the Option requirements, including the Option Order, Option Period, Option Units or Option Price.
I can confirm that we hold the information you require.
Given the size of the relevant files, rather than send them by email we will need to provide them to you by providing access to a Sharepoint file on which they are stored. You should have received an email separately that provides a link to the Sharefile where you can access the documents that we hold.
Volumes 5, 6, 7, and 8 contain Schedule B2, the proposal from Bombardier Transportation in response to the Invitation to Tender. This schedule, together with certain information in the other volumes, is considered by RfL to comprise commercially confidential and proprietary information the disclosure of which is considered likely to prejudice the commercial interests of Bombardier Transportation.
The following exemptions to the right of access under the Freedom of Information Act have been applied to Volumes 5,6,7 and 8 in their entirety, and selectively to Volumes 1, 2, 3, 4, 9,10,11,12 and 13.
S.38 (Health and Safety); some information about site security has been redacted to protect the safety of employees and the public. We do not consider that there is a particularly strong public interest in disclosure of this information as part of the contract. Although we recognise that there is a public expectation of transparency and a public interest in ensuring that transport depots are effectively secured, disclosure of this information would be likely to risk the health and safety of individuals if it assisted unauthorised individuals attempting to access the premises.
S.40(2) (Data Protection); some personal data has been removed from the contract. This is because disclosure would be a breach of the legislation, specifically the first principle of Article 5 of the General Data Protection Regulation which requires all processing of personal data to be fair and lawful. It would not be fair to disclose this personal information when the individuals have no expectation it would be disclosed and TfL has not satisfied one of the conditions which would make the processing ‘fair’.
S.41 (Actionable Breach of Confidence); Some information contained in the contract, in particular in Volumes 5,6,7 & 8 was supplied to TfL under an obligation of confidentiality. Disclosure of this technical information by TfL would constitute an actionable beach of confidence.
S43(1) & S43(2) (Prejudice to Commercial Interests); Information, including detailed breakdowns of pricing, mitigation of risk, identification of potential subcontractors, detailed technical specifications and information which would be likely to affect Bombardier’s competitive advantage. Some of the redacted information, because of its technical nature, also constitutes a trade secret and is therefore subject to exemption under s43(1). Whilst we recognise that there will be a high level of interest in the more technical aspects of the contract, we consider that even if the disclosure did not lead to action for breach of confidence, it would damage our ability to engage with suppliers in the future.
The use of this exemption is subject to an assessment of the public interest in relation to the disclosure of the information concerned. In this instance, factors in favour of disclosure, such as the general public interest in transparency and openness are outweighed by the potential damage to the effective operation of the bidding process. Disclosure would therefore be likely to prejudice TfL’s ability to obtain best value from its procurement process, leading to increases in the cost to the public, either through taxation or increased fares, and Bombardiers ability to compete on a level playing field with other companies. There are a limited number of companies able to bid for such contracts and Bombardier are likely to find themselves competing for similar contracts in the future. In this instance we consider that the public interest lies in obtaining the best value from the market, whilst respecting the implied and explicit obligations of confidentiality which are created through the procurement process.
TfL recognises the need for openness and transparency by public authorities, but in this instance as disclosure of this information would be likely to prejudice TfL’s ability to obtain best value from its procurement process and Bombardiers ability to compete with other companies, it is considered that the public interest favours the use of the exemption.
If this is not the information you are looking for, or if you are unable to access it for some reason, please do not hesitate to contact me.
Please see the attached information sheet for details of your right to appeal as well as information on copyright and what to do if you would like to re-use any of the information we have disclosed.
Yours sincerely
Sara Thomas FOI Case Management Team General Counsel Transport for London
