Our Ref: FOI-1039-1718
Thank you for your e-mail received on 2 August 2017 asking for information about the Rolling Stock and Depot Provision Agreement (RSPA).
Your request has been considered in accordance with the requirements of the Freedom of Information Act and our information access policy. I can confirm we do hold the information you require.
The contract for the provision of the rolling stock and depot for the Crossrail Project, the RSPA, has been awarded by TfL to Bombardier Transportation UK Ltd. The Agreement which will be managed by Rail for London Ltd (RfL) covers the supply, delivery and maintenance of 65 new trains and the depot at Old Oak Common.
The documents comprising the Agreement are listed below. Please click on the appropriate link to access the information you require:
• Download RSPA Contents List
• Download RSPA Volume 1 - Clauses 1 to 64
• Download RSPA Volume 2 - General Schedules A1 to A4
• Download RSPA Volume 3 - General Schedules A5 to A16
• Download RSPA Volume 4 - Units Schedule B1
• Download RSPA Volume 9 - Units Schedules B3 to B5
• Download RSPA Volume 10 - Depot Schedules C1 to C2
• Download RSPA Volume 11 - Depot Schedules C3 to C9
• Download RSPA Volume 12 - Operations Schedules D1 to D3
• Download RSPA Volume 13 - Finance Schedules E1 to E13
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 Data Protection Act and specifically the first principle, which requires all processing of personal data to be fair and lawful. It would not be fair to disclose personal data when the individuals have no expectation it would be disclosed and TfL has not satisfied one of the conditions of Schedule 2 of the Data Protection Act 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.
In taking this decision we have been guided by the advice given in the Government publication FOI (Civil Procurement) Policy and Guidance -
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FOI Case Officer
FOI Case Management Team
Transport for London