Richard Branson's campaign to review the West Coast Mainline Procurement

Richard Branson is running a sustained and successful campaign (in pr terms at least) to get the Government to review the recent awarding of the West Coast mainline franchise to First Group, rather than his own Virgin Group. The main thrust of his argument is that First Group have promised to pay too much back to the Government and that they will be forced, by economics, either to renegotiate the franchise mid-way through, or to walk away before the end. There is of course a precedent for this: both GNER and National Express have walked away from the Eastcoast mainline franchises, leading to the effective renationalisation of the service. In both cases Virgin came second in the bidding process as they offered less money to HMG. While I have some sympathy for Branson's position I suspect that the Government's hands are tied in a way that no-one I have heard or read has made clear. I'll explain: I assume (although I don't know) that the franchise renewal process took place under EU procurement rules. The procurement process requires that you set out the criteria by which you are going to judge the bid and how you are going to score the criteria beforehand. Once you have started the process, you cannot change the criteria without starting again. The rules have nothing to say about what criteria you use, or whether they have to make sense, you just have to state what they are and apply them equally and fairly to all bidders. From the fairly gnomic utterances of the Department for Transport, I would guess that there is nothing about the sustainability and realism of the revenue projections in the criteria, so there is no way that, legally, the DfT could halt the process for review, even if it wanted to. In fact, under the new rules that came into force earlier this year, FirstGroup would be able to sue the Government for loss of earnings if they delayed the process, having awarded the franchise. At Stonivale, we have substantial experience of running successful EU procurements that deliver value for money, both for the public and for the company doing the bidding. If you would like advice, either in helping to respond to a Tender or in formulating an Invitation To Tender (ITT) so that you get the best value for money and reduce the risk of a challenge, why not contact us?