Digital Railway: Business cases
Dear Network Rail Limited,
I refer to the article reproduced here;
http://thorpestreetmedia.com/2018/12/dig...
which was apparently first published in Rail 837 on the 11 October 2017.
The article includes the following;
“Network Rail has explored digitalisation by looking at five routes: East Coast Main Line, South Eastern, Great Eastern Main Line, South West Main Line and the Great Western. In strategic outline business cases it found that there was a good case for deploying digital technology to address the challenges found on each line and installing ETCS cab-signalling where NR needed to renew signalling anyway”
Please provide the business case referred to that was produced for each of these five routes. Please also provide any business case or benefits to cost ratio calculation that has been produced subsequently for any of these five routes.
Yours faithfully,
Dr Paul Thornton
Reference number: FOI2019/01509
Dear Dr Thornton
Information request
Your correspondence was received by Network Rail on 27 December 2019. I can confirm that your request is being processed under the terms of the Freedom of Information Act (FOIA) / Environmental Information Regulations (EIR). I will endeavour to respond to you as soon as possible and in any event by 28 January 2020.
On occasion we may need to consult with third parties about requests, in line with the recommendations in the Code of Practice issued by the Cabinet Office.
If you have any queries please contact me.
Please remember to quote your reference number in all future communications.
Kind regards
Najea Begum | Information Officer
Freedom of Information | Legal & Corporate Services
Network Rail | 1st Floor | Willen Building | The Quadrant: MK
Elder Gate | Milton Keynes | MK9 1EN
Telephone: 01908 782405 |
Email: [Network Rail request email]
Web: http://www.networkrail.co.uk/foi/
Diversity and Inclusion Champion
Reference number: FOI2019/01509
Dear Dr Paul Thornton
Please find attached our response to your Freedom of Information request.
If you have any queries please contact me.
Yours sincerely
Najea Begum | Information Officer
Freedom of Information | Legal & Corporate Services
Network Rail | 1st Floor | Willen Building | The Quadrant: MK
Elder Gate | Milton Keynes | MK9 1EN
Telephone: 01908 782405 |
Email: [Network Rail request email]
Web: http://www.networkrail.co.uk/foi/
Diversity and Inclusion Champion
Reference number: FOI2019/01509
Dear Dr Paul Thornton
Please find attached our response to your Freedom of Information request.
Due to file size restrictions by our servers, I will have to send you the information over a few emails. Please find response letter and one business case attached to this email.
If you have any queries please contact me.
Yours sincerely
Najea Begum | Information Officer
Freedom of Information | Legal & Corporate Services
Network Rail | 1st Floor | Willen Building | The Quadrant: MK
Elder Gate | Milton Keynes | MK9 1EN
Telephone: 01908 782405 |
Email: [Network Rail request email]
Web: http://www.networkrail.co.uk/foi/
Diversity and Inclusion Champion
Ms Najea Begum
Information Officer
Network Rail
Dear Najea Begum,
I refer to your response of the 25th February 2020 reference FOI2019/01509. While providing some of the requested information, you chose to withhold the digital railway business case in respect of the East Coast Main Line claiming exemption under EIR 12(4)(d). Your letter is on line at the URL below:
https://www.whatdotheyknow.com/request/d...
I note that the Transport Secretary announced a decision to proceed with the development on the 22 June 2020 as at this link:
https://www.gov.uk/government/news/thous...
I would be grateful if you would now send me the ECML digital railway business case as previously requested.
Yours sincerely,
Dr Paul Thornton
Reference number: FOI2020/00732
Dear Dr Thornton
Thank you for your request for information.
Your correspondence was received by Network Rail on 28 June 2020. I can confirm that your request is being processed under the terms of the Freedom of Information Act (FOIA) / Environmental Information Regulations (EIR). I will endeavour to respond to you by 27 July 2020.
On occasion we may need to consult with third parties about requests, in line with the recommendations in the Code of Practice issued by the Cabinet Office.
If you have any queries please contact me.
Please remember to quote your reference number in all future communications.
Yours sincerely
Najea Begum | Information Officer
Freedom of Information | Legal & Corporate Services
Network Rail | 1st Floor | Willen Building | The Quadrant: MK
Elder Gate | Milton Keynes | MK9 1EN
Telephone: 01908 782405 | 07732640993
Email: [Network Rail request email]
Web: http://www.networkrail.co.uk/foi/
Diversity and Inclusion Champion
Dear Najea Begum,
I am grateful for your response dated 29th June 2020, your reference FOI2020/00732, that is on line here;
https://www.whatdotheyknow.com/request/d...
I note your intention to respond substantively by the 27th July 2020. But, given that this information must be readily locatable, cannot be of substantial volume and relates to a policy that has been adopted and announced, I would be grateful if you would hasten an earlier response, "as soon as possible", as required under the EIRs. (The 20 working days cited in the legislation is an absolute permitted maximum not a default target.)
I am keen to be able to show, as soon as possible, that in announcing this development, the Secretary of State and Network Rail has adopted a policy that is substantially cost effective.
Yours sincerely,
Dr Paul Thornton
Dear Dr Thornton
Thank you for your email of 18 July 2020. I am currently in the process of completing final checks with the relevant stakeholders. As soon as this is complete, I will be in a position to issue our response to you. If I obtain the necessary approvals before the 20 working day deadline of 27 July 2020, then I will send the response to you earlier, as soon as possible.
Kind regards
Najea Begum | Information Officer
Freedom of Information | Legal & Corporate Services
Network Rail | 1st Floor | Willen Building | The Quadrant: MK
Elder Gate | Milton Keynes | MK9 1EN
Telephone: 01908 782405 |
Email: [Network Rail request email]
Web: http://www.networkrail.co.uk/foi/
Diversity and Inclusion Champion
Reference number: FOI2020/00732
Dear Dr Thornton
Please find attached our response to your Freedom of Information request.
If you have any further queries please contact me.
Yours sincerely
Najea Begum | Information Officer
Freedom of Information | Legal & Corporate Services
Network Rail | 1st Floor | Willen Building | The Quadrant: MK
Elder Gate | Milton Keynes | MK9 1EN
Telephone: 01908 782405 |
Email: [Network Rail request email]
Web: http://www.networkrail.co.uk/foi/
Ms Najea Begum
Information Officer
Freedom of Information
Legal & Corporate Services
Network Rail
Dear Najea Begum,
Thankyou for your response and for the information that you have provided. The information provided suggests that progressing the scheme, as announced, is appropriate. I am, however, baffled in respect of the decision to withhold some information under regulation 12(5)(e).
You observe that the work to be commissioned will be subject to a tender process but go on to claim that “disclosing the costs of previous projects and the costs of future options, may influence the tenders and could mean that Network Rail end up paying more for the work on this scheme.”
I do not understand the mechanism by which such influence could occur, and particularly how such knowledge would necessarily inflate, rather than deflate, the tenders offered.
If the tendering process is undertaken on the basis of competitive sealed bids for defined work, and the bids remain sealed and secret until the advertised deadline, then it should not matter what information is provided to potential tenderers provided that information is provided equally and fully to all competing tenderers.
Historical information about previous successful tenders or an approximate commissioner’s budget might inform the tendering process for all participants but, to the extent that this has any impact at all on the tendered prices, the competitive nature of the tendering process should mean that such information would be just as likely to secure a lower tender bid.
You argue that “It would also mean that if any of the potential tenderers had seen this figure, they would have an unfair advantage over those who had not, thereby removing the level playing field on which exercises like this should be conducted.” The corollary of this is that under your current modus operandum, the successful tenderer in a previous application is given an advantage in later tender applications.
It seems to me that your arguments can only be sustained if 1. there is collusion between the tendering companies not to bid below a stated threshold or 2. if the bids are not sealed and maintained in secrecy until the closing date. Are you claiming either of these mechanisms or can you provide a further mechanism operating that would undermine the effect of the competitive sealed bid process?
I would be grateful if you would obtain clarification on this point and then I can decide whether to formally appeal the decision to withhold the information under this exemption..
Yours sincerely,
Paul Thornton
Dear Dr Thornton
Thank you for your email of 25 July 2020 regarding our response to request FOI2020/00695, specifically our decision that it was appropriate to withhold some of the information we held under Regulation 12(5)(e) of the Environmental Information Regulations 2004 (EIR).
While I realise you have asked us to provide further explanation of the basis for thinking that this exception to the duty to disclose information applies in the case of your request with a view to your deciding whether it is right to ask for an internal review, I think that our only appropriate course of action is to conduct an internal review. This is simply because in any case where an applicant makes representations to us because they think that we have failed to comply with a requirement of the Regulations, it is necessary that we carry out an internal review of the handling of the original request.
The purpose of the internal review procedure is to provide a fair, thorough and independent review of the handling of your request under the EIR.
We will endeavour to respond to your request for an internal review by 22 September 2020. If you have any queries about the internal review, please contact me quoting reference IR2020/00847.
Jonathan Mantle | FOI Manager
Freedom of Information | Legal and Corporate Services
Network Rail | 1st Floor | Willen Building | The Quadrant: MK
Elder Gate | Milton Keynes | MK9 1EN
Email: [Network Rail request email]
Web: http://www.networkrail.co.uk/foi/
Jonathan Mantle | FOI Manager
Freedom of Information | Legal and Corporate Services
Network Rail |
Dear Mr Mantle,
Thank you for your email of the 27th July 2020, your references FOI2020/00695 and IR2020/00847.
While your decision to treat my request for clarification as a request for internal review is, no doubt, well intentioned, it is not appropriate. Explicitly and implicitly, I held back from claiming that Network Rail have failed to comply with a requirement of the regulations. I raised questions.
Under the legislation, the requestor is only provided one opportunity to appeal a decision to the authority. Quite rightly, repeated appeal submissions would be perceived as vexatious. Should I decide to appeal, there might be additional points that I would wish to be considered. A request for review requires extensive reconsideration of the entire request on your part which would be a needless burden now.
Also, while it may not have been your intention, your suggestion that you “will endeavour to respond by the 22 September 2020” rather implies a possible intrinsic delaying function in your department. The EIRs require that responses are provided “as soon as possible”. That obligation overrides your apparent reliance on the maximum period permitted under the legislation by which you are absolutely obliged to respond, (and even that reliance is couched in terms that are not definite.)
Accordingly, I must ask that my email of the 25th July 2020 is dealt with on the basis that it is, as I stated, simply a request for clarification. I am not asking you to provide a balanced review of whether the decision was correct. I am seeking that the response already provided be made crystal clear. I am asking for elaboration, explanation and, if readily available, evidence for the argument that has been put forward, so that the argument can be better understood by someone who is not involved in the tendering processes adopted by Network Rail.
Given that you are relieved of the burden of a full internal review, and presumably you are confident in the arguments previously proposed, clarification should be quickly and easily elicited from your source who provided the form of words that was used.
Yours sincerely,
Dr Paul Thornton
Dear Dr Thornton
Thank you for your email.
I will, in accordance with your wishes, close our internal review and will raise your request for clarification with our subject matter experts who helped us with your initial request.
I will look to respond to you as swiftly as I reasonably can but do feel free to contact me in the interim if you have any further questions.
Jonathan Mantle | FOI Manager
Freedom of Information | Legal and Corporate Services
Network Rail | 1st Floor | Willen Building | The Quadrant: MK
Elder Gate | Milton Keynes | MK9 1EN
Email: [Network Rail request email]
Web: http://www.networkrail.co.uk/foi/
Jonathan Mantle | FOI Manager
Freedom of Information | Legal and Corporate Services
Network Rail | 1st Floor | Willen Building | The Quadrant: MK
Elder Gate | Milton Keynes | MK9 1EN
Dear Mr Mantle
It would be helpful if the clarification I have requested could be provided with the minimum of further delay. More than three weeks has elapsed already which should be more than sufficient time simply to provide clarification and explanation of a response already provided.
Perhaps you could provide, by return, confirmation of the date by which a reply will be provided?
Yours sincerely,
Dr Paul Thornton
FOI Department
Network Rail
Milton Keynes,
Dear FOI dept
I sent a follow up direct email to your colleague, Mr Mantle, on the 28th July 2020 seeking a substantive response to an earlier question that was in turn seeking clarification of an FOI response provided. But I have not received an acknowledgement. It may be that he is currently on holiday and unavailable.
Mr Mantle has indicated to me that the substantive response will require a contribution from subject matter experts who assisted in the FOI response that was provided.
There are time pressures in this matter and so I would be grateful if you assist Mr Mantle by ensuring that the clarification from the experts has been obtained, and, if he remains unavailable, it would be helpful if the substantive response could be provided by his deputy.
The full exchange in this matter is on line at the link below.
https://www.whatdotheyknow.com/request/6...
Yours faithfully,
Dr Paul Thornton
Yours sincerely,
Paul Thornton
OFFICIAL
Dear Dr Thornton
Thank you for getting in touch and please accept my apologies for the delay it has taken me to respond to you.
Following your recent correspondence, I have been in touch with our business experts to get a more detailed explanation of our reasons for believing that the information you requested was exempt from disclosure by virtue of Reg 12(5)(e) of the Environmental Information Regulations.
Before going into this explanation any further, I thought it would be useful to set out what any public authority needs to demonstrate in order to apply this exemption and our reasons for thinking it was relevant to the information in question.
1. The information is commercial or industrial in nature.
2. Confidentiality is provided by law.
3. The confidentiality is protecting a legitimate economic interest.
4. The confidentiality would be adversely affected by disclosure.
We took the view that the first of these conditions was satisfied because the information is relevant to future tendering exercises as it gives a guide to the resources available to Network Rail and what we expect to pay for services. This matches the Information Commissioner's definition of commercial activity since it concerns "...the sale or purchase of goods or services..."
We were also content that the second condition, namely that the information had the necessary quality of confidence, was met since this information was neither trivial nor in the public domain.
The "legitimate economic interest" being protected was our bargaining position in the context of existing or future negotiations. For the Information Commissioner's purposes, identifying the interest is not sufficient to meet the test, public authorities in our position must also demonstrate that these interests would be harmed by disclosure. In this instance we concluded that such harm would occur because releasing the information in question would make companies trying to win future contracts less likely to put in low bids. In direct terms, it is rarely profitable for any commercial enterprise to reveal its budget to the other side before negotiations have concluded.
Finally, as the Information Commissioner recognises, once the first three elements of the test are established, it is inevitable that the fourth element (that the confidentiality would be adversely affected by disclosure) will be satisfied.
While I think this demonstrates that the exception at 12(5)(e), i.e. the exception which protects commercially confidential information is potentially engaged, this in itself is not sufficient reason to withhold information from disclosure. It is also necessary to show that the public interest lies in favour of maintaining the exception.
Our response to you recognised that there was a 'presumption in favour of openness and transparency, specifically in relation to financial information, since this allows for greater scrutiny and accountability' of the way in which we spend public money. To expand on this a little, releasing information about costs would give greater understanding of environmental matters, better permit a free exchange of views and allow more effective public participation in environmental decision making. Knowing how much we budget for a project lets the public see whether we are spending money effectively, whether we set appropriate budgets in the first place and whether we could achieve better value or provide better services by investing the money differently. All of this contributes to a better environment and is manifestly in the public interest.
On balance, however, we concluded that the public interest was better served by withholding the information in question since by disclosing 'costs of past projects and the costs associated with options for this scheme; we would effectively undermine our capacity to negotiate the best value contracts. Preventing us getting value for money would create an unnecessary drain on public resources which would essentially hinder our ability to deliver services of the range and value that we would otherwise.'
Again to set out this position in a little greater detail and hopefully to address the points you raised in your email, our strategic cases, like this one for the East Coast Mainline always carry a significant "optimism bias" built into the process by design. It is the standard method of protecting ourselves from undervaluing the programme during the earlier stages of development and consequently overstating the Benefit Cost Ratio. Our concern is that putting the optimism bias adjusted figures into the public domain at this stage would lead potential bidders to think we had more money available to spend than we actually do, which would make it more difficult to achieve value for money for the public purse.
As a public authority in the transport sector we are bound by the Utilities Contracts Regulations which set out the principles and rules we need to follow in procurement exercises. The proper process, following these public procurement rules, is to publish our anticipated cost of specific services/works at the time they are tendered e.g. within the Official Journal of the European Union (more commonly OJEU) notice. This ensures every interested bidder has the same information at the same time, tailored to that specific procurement. The principle underlying the Regulations is that we should treat economic operators (in this case potential bidders) equally and without discrimination and that competition should in no circumstances be artificially narrowed - they were formed as it was in the public interest to ensure that public procurement was conducted with scrupulous fairness and creating a defined legal framework was the best method for achieving this. Publishing information of this type ad hoc, outside the standards created by the Regulations has the potential to advantage some economic operators and thus bypass the legal framework put in place to protect the public interest in transparent, impartial public procurement.
I hope this makes our rationale for applying the exception at Regulation 12(5)(e) clear.
Yours sincerely
Jonathan Mantle | FOI Manager
Freedom of Information | Legal and Corporate Services
Network Rail | 1st Floor | Willen Building | The Quadrant: MK
Elder Gate | Milton Keynes | MK9 1EN
Email: [Network Rail request email]
Web: http://www.networkrail.co.uk/foi/
Jonathan Mantle | FOI Manager
Freedom of Information | Legal and Corporate Services
Network Rail | 1st Floor | Willen Building | The Quadrant: MK
Elder Gate | Milton Keynes | MK9 1EN
Dear Mr Mantle,
Thankyou for your email of the 30th August 2020. Unfortunately, while helpful, it does not address the key point on which I sought clarification in my email to Najea Begum on the 25th July 2020. You have essentially just rephrased the substance of that point.
You state this time that “We concluded that such harm would occur because releasing the information in question would make companies trying to win future contracts less likely to put in low bids.”
And that “putting the optimism bias adjusted figures into the public domain at this stage would lead potential bidders to think we had more money available to spend than we actually do, which would make it more difficult to achieve value for money for the public purse.”
You appear to present this claim as a self-evident truth or an article of faith but provide no substantiation or explanation of the mechanism. If the competitive sealed bids processes under the Utilities Contracts Regulations are fulfilled , the argument seems to be, or should be, a complete non-sequitur.
To win the contract, bidders will be submitting bids that reflect their true costs and their potential for profit in the knowledge that they will not be successful if they bid higher than their competitors. That market force should ensure that any previously declared anticipated expenditure by the commissioning public body should have a marginal (if any) impact on the actual bids submitted. This is true whether the declared sum is an over or an underestimate.
How would that market force, or the regulations that ensure it, be undermined or breached by the publication of the withheld information so that it would be accessible to all, including all potential bidders?
Fundamentally, you seem to be arguing that in respect of costs, you have “negotiating” and “bargaining” processes persisting. I struggle to reconcile such processes with a sealed bidding process that is compatible with the UCRs and the “scrupulous fairness” that should underpin it. Perhaps clarity of your argument lies in an explanation of those negotiating and bargaining processes and how they are compatible with the fair competitive tendering process?
I am still to decide whether to formally appeal the decision to withhold the requested information. As I explained previously that decision will be very much influenced by your clarification. You will appreciate that I will need your further response with some urgency as the time available within which I must submit any request for review has already been substantially eroded.
Yours sincerely,
Dr Paul Thornton
Dear Dr Thornton
I am happy to make further enquiries with my colleagues and will come back to you as soon as I can.
Yours sincerely
Jonathan Mantle | FOI Manager
Freedom of Information | Legal and Corporate Services
Network Rail | 1st Floor | Willen Building | The Quadrant: MK
Elder Gate | Milton Keynes | MK9 1EN
Telephone: 07710 960727
Email: [Network Rail request email]
Web: http://www.networkrail.co.uk/foi/
Dear Mr Mantle,
Thankyou for your email of the 7th September 2020. You confirmed an intention to make further enquiries of your colleagues. Have they given you an indication of when clarification is likely?
Yours sincerely,
Paul Thornton
Dear Dr Thornton
Please accept my apologies for the delay in coming back to you.
I have discussed the matter further with the Programme Sponsor and can
provide the following comments:
While market forces will be the key determining factor in any bid,
releasing information which benchmarks expectations would still have a
potentially inflationary effect. This is because it would mean that all
bids would be likely to come in within a narrow range close to the
benchmarked figure. Where there is a degree of uncertainty about the
amount of money available then there is a possibility of a wider range of
bids and therefore the possibility of receiving bids that offer better
value to the public purse.
Even if this were not the case, we still think that it would be
inappropriate to release the information since to do so would deviate from
the processes set out in the Utilities Contracts Regulations and we think
it would be wrong to risk undermining these processes.
I would note that in your most recent correspondence that although you
were explicit about not wanting an internal review, you were not asking
for clarification so much as disputing the explanation I had provided.
Where there is dissatisfaction with a response or disagreement about the
application of an exemption, the most appropriate way forward is for us to
conduct an internal review. If you would like us to carry out a review of
the handling of your request, please do let us know.
Yours sincerely
Jonathan Mantle | FOI Manager
Freedom of Information | Legal and Corporate Services
Network Rail | 1st Floor | Willen Building | The Quadrant: MK
Elder Gate | Milton Keynes | MK9 1EN
Email: [Network Rail request email]
Web: http://www.networkrail.co.uk/foi/
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