TfL Ref: FOI-2943-2425
Thank you for your request received by Transport for London (TfL) on 13 December 2024 asking for access to the Rolling Stock and Depot Provision Agreement (RSPA).
Your request has been considered in accordance with the requirements of the Freedom of Information (FOI) Act and our information access policy. I can confirm that we hold the information you require.
The documents comprising the RSPA are listed below. You will have received an email separately that provides a link to the requested 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
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 Rail for London Ltd (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 FOI 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.
Section 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.
Section 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’.
Section 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.
Sections 43(1) and 43(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 section 43(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 Bombardier’s 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 Bombardier’s 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 -
https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/62062/ogc-foi-civil-procurement-guidance.pdf
If this is not the information you are looking for, or if you are unable to access it for some reason, please feel free to contact me.
Please see the attached information sheet for details of your right to appeal.
Yours sincerely,
Mary Abidakun
FOI Case Officer
FOI Case Management Team
General Counsel
Transport for London
