The 'Fiasco' of the West Coast Rail Franchise and the European Public Procurement Rules

Abstract

For the past two decade the carriage of rail passengers has been done by private operators to whom concessions have been given to run the services (rail franchising). A report in January 2013 by Richard Brown confirmed the overall success of this policy despite a recent procurement failure (the West Coast Line Rail Franchise), which is the subject of this article. Brown says “Having examined the position, I share the Government’s view... that the rail industry works, and that there is no credible case for major structural change.... Since privatisation, Britain’s railways are successfully carrying more passengers, more safely, on many more and newer trains, more of which arrive punctually and with greater levels of passenger satisfaction.” Rail franchising is of interest to the author because it is affected by the operation of the European directives on public procurement. She has practised in this area of law, originally as a local government lawyer, since the early 1990s. The author has published academic articles and responses to EC Commission consultations papers since then sharply critical of the legislation, in particular the enforcement regime introduced in 2009, which has made it virtually impossible to run a challenge-free public procurement. The rate of challenge has dramatically escalated since 2009 though the disruption and expense rarely hits the headlines. The procurement challenge to the West Coast rail franchise tendering exercise however grabbed public attention and might help focus attention on whether the European procurement regime provides value for money.