Select Committee on Transport Fourteenth Report


4  The management of the passenger rail franchising system

73. The Department for Transport told the Committee that, since the 2004 White Paper, it has been "driving forward improvements to the franchising process, in collaboration with industry partners, through new working practices and changes to contractual relationships."[142] Many of these changes have taken their expression in the nature of franchise agreements, and in the process and cost of bidding for such contracts. Have they struck the right balance?

Level of detail in franchise agreements

74. The Department for Transport aims to balance the need for flexibility for private operators to innovate and apply commercial judgment with the need to achieve its own high-level objectives through service specifications and targets used in the franchise procurement process as well as subsequent contracts. Specifications in franchising contracts are intended to secure five key objectives:[143]

i.  to set out the level of train service provision required (through a review of historic provision and forecast of future demand) where, otherwise, market forces would not normally deliver;

ii.  to protect the passenger from monopolistic actions in specific markets (e.g. through regulation of London commuter fares);

iii.  to protect the benefits of a national rail network in the UK mainland;

iv.  to provide a "level playing field" for a competition to successfully award the franchise within the terms of procurement legislation and general best practice; and

v.  to allow the specification to be varied over time to reflect emerging market needs through innovation and commercial judgment.

75. We received much evidence suggesting that franchise contracts have become too detailed, restricting the scope for innovation and the flexibility of franchise operators to react to changes in market conditions.[144]

76. The Department for Transport is clearly aware of this criticism, and the Guide to the Railway Franchise Procurement Process published earlier this year emphasises that:

    "the Secretary of State is keen to maximise input and innovation that bidders make to the detailed design of the timetable. The Secretary of State therefore intends to avoid over-specifying the base service specification, whilst providing sufficient clarity about the requirements to ensure that there is a level playing field when bids are appraised."[145]

77. In recent re-franchising processes, the Department has also divided the franchise specifications into two sections, one containing standard terms that apply to all new franchises, and the other containing terms that are specific to the franchise in question.[146] Train operating companies appeared to appreciate this recent innovation. Mr Smith of Govia commented that this separation improves both efficiency, market understanding and the general procurement process. Mr Furze-Waddock from First Group added that it concentrated minds on the things that are really important in a particular franchise.[147]

78. We welcome the move towards a general set of base specifications that are used across all franchises, with a separate set of specifications setting out requirements that are franchise-specific. The base specifications should remain strictly limited to essential conditions. Franchise-specific conditions should be allowed to vary widely so that the tightness of service specifications can be tailored to the circumstances of individual franchises. Taxpayers are entitled to expect that heavily subsidised franchises have tighter specifications than ones that pay a premium.

79. Several witnesses pointed to the connection between risk, innovation and the level of detail in franchise agreements. National Express Group told us that, "as the only true customer facing part of the railway industry, the TOCs [should be] able to take risks appropriate to growing a true customer focused business and can be rewarded appropriately for taking those risks. At the moment, we feel unnecessarily constrained." [148] This problem manifested itself even during the bidding process where the tender specification stipulated a frequency of five trains per hour, but National Express Group wanted to offer six trains per hour. The Group gained nothing in the bidding process as a result of proposing an extra train every hour. Mr Franks warned that, "if you do highly specify the franchises at bid stage, it does prevent innovation if you are not careful."[149] The ORR concurred:

    "…the government should place those commercial risks with franchised operators which the operators are best placed to manage. […] However, it would be difficult to expect them to do so unless they also had greater freedom over service specification and had the ability to make changes to services where this could impact on revenue. The need for this is likely to vary according to the involvement and requirements of the funder of the services. In some cases, particularly intercity services, we consider that too prescriptive an approach to service specification can prevent operators from responding by using their expertise to optimise services in a way which meets the needs of passengers better."[150]

80. Whilst acknowledging that tighter and more detailed franchise specifications reduce the scope for innovation, Jim Steer, a consultant, argued that tight specifications are vital because they make it possible to compare bids fairly on dimensions other than mere price.[151] Passenger Focus referred to a finding from the Strategic Rail Authority (SRA) that the only way to ensure that franchise operators make the desired improvements in the quality of passenger and station services is to specify this in the contract. The drawback, however, was a loss of innovation.[152]

81. A related point was made by Mr Sargant of PTEG who told us that a distinction needs to be made between franchises that are subsidized by the public purse and those which return premium payments to the Treasury. The former, he argued, need tight specifications to protect passengers' best interests where these might be at odds with commercial interests, whereas the latter should be allowed greater freedom to innovate and improve services for passengers.[153] The Department for Transport did not agree on this point, arguing that it is just as important to specify the base requirements in profitable franchises as it is in non-profitable franchises because a service which is profitable over all might nonetheless contain unprofitable elements which are deemed by ministers to be socially necessary.[154]

82. NedRailways explained to us that the Dutch system is structured around broad framework contracts that provide long-term direction relating to capacity growth, overcrowding and other broad issues. The broad long-term contract is complemented by more specific short-term agreements and targets, negotiated and reviewed on an annual or bi-annual basis. This contractual framework is more flexible than the model currently used in England and Wales, and as a result, there is more scope for innovation and cooperation between industry partners.[155]

83. The aim to attract private companies who are prepared to take commercial risks, provide innovation and adapt to market circumstances is fundamentally at odds with the need for the Department to guarantee the consistent delivery of a quality public service and value for money for taxpayers and passengers. On the one hand there is a need for loose and flexible franchise specifications with room for innovation and risk, and on the other hand there is a need for very tight specifications and targets. Franchise operators have very limited flexibility to innovate, and they assume only a relatively small part of the overall risk. This tension cannot be fully resolved within the current framework, but the Department could mitigate the problem to some extent by reassessing the gains and losses of its current approach with a view to achieving greater flexibility.

Franchise length

84. The length of passenger rail franchises has varied significantly since privatisation. The majority of the 25 franchise contracts initially awarded after privatisation were short contracts of around seven years,[156] and following a change of policy, franchises were meant to become much longer. But only one long franchise, Laing Rail's 20-year contract for the Chiltern franchises was awarded by the Strategic Rail Authority (SRA) before the fall-out from the Hatfield crash caused another change in policy.[157] Since the Department for Transport took over responsibility for franchising from the defunct SRA in 2005-06, franchise awards have been 8-10 years with a break clause before the final 2-3 years.[158] Many witnesses in our inquiry agreed that the length of franchise contracts is crucial to the delivery and costs of services,[159] but there is no clear consensus in the industry as to the optimal length.

85. Some witnesses, including many franchise operators[160] suggested that short or medium length franchises, ranging between eight and 15 years were optimal:

i.  If franchises become longer than 10-12 years, demand forecasting and the management of risks becomes much more inaccurate.[161] It is particularly difficult to forecast up and down-turns in the economy for that kind of scale.[162] This in turn is likely to increase the risk premium, and therefore make subsidy payments by Government higher or the premiums paid to the Government lower.[163]

ii.  Relatively short franchises maintain the competitive pressure on operators, and prevent them from "going stale."[164]

86. Others believed that franchises needed to be longer, for example 20 years. Transport 2000 argued that the current franchises are too short, and that this:

    "discourages the kind of investment essential to a thriving railway and constrains franchisees as businesses. […] To make a profitable system out of the railways, companies need to know that their investment will be useful not just in the short term but in the mid and long term, with the proviso that companies are monitored at checkpoints during the franchise to ensure they are performing well and to enable action if they are not."[165]

Merseyrail Electrics, the only English rail franchise not controlled by the DfT,[166] is managed by a Passenger Transport Executive (PTE), Merseytravel. Merseytravel, which opted for a 25-year contract when letting the franchise, told us that their long contract was vital in order to secure a high level of commitment and investment from the franchise operator.[167] The MVA consultancy, however, said that the notion of a link between investment and franchise length is misguided:

    "TOCs do not have balance sheets able to support capital investment. Capital investment is either undertaken by the franchisee, Network Rail or some form of bank or finance house. Where investment of this kind is made, the funder merely needs to take a commercial view as to whether the asset will be of use beyond the length of the current franchise, and therefore lease payments made, or whether it needs a government underwriting to protect its position. In either case, there is no additional cost or risk to the TOC."[168]

87. Other arguments in favour of longer franchise contracts were:

i.  Stagnation during the last years of a franchise means that innovation and new initiatives cease, and improvements in performance may falter because of lack of incentive for the incumbent franchise holder.[169] The shorter franchise the contracts, the greater the overall proportion of time in stagnation.[170]

ii.  In short franchises, there is a tendency for investment to be made very early on, in order for the franchisee to have some prospect of earning a return before the end of the contract. In a longer franchise, the TOC is able to take a more measured approach.[171]

iii.  The re-franchising process is a significant cost for TOCs as well as the DfT, so if contracts are longer, the relative cost per year of the franchise is lower.[172]

iv.  Longer franchises would also provide the incentive to buying rather than the more expensive option of leasing trains.[173] Or at least, they might be in a better position to bargain with Network Rail and the Rolling Stock Leasing Companies (ROSCOs).[174]

v.  Longer franchises make it easier to develop a coherent strategy of infrastructure investment, such as electrification. Although such investments are undertaken by Network Rail, frequent changes of franchise operators can be an obstacle because the operator's horizon will be too short for them to take any interest in such large scale projects. [175]

vi.  The relatively frequent changes of employer inherent in short franchises might affect the performance of employees. The Chartered Institute of Logistics and Transport also questioned whether frequent changes of franchise operator might have an effect on safety.[176]

88. Several witnesses identified break clauses as the key to the issue of optimal length of franchises. The Railfuture Passenger Committee suggested that contracts could run for up to 15 years with one or more break points along the way. This would allow the Government to terminate the contracts of train operators who performed poorly, whilst well-managed franchises would enjoy the stability of a full 15 years between re-franchising rounds.[177] The Government has used this mechanism in the recent re-franchising of the Greater Western and Integrated Kent Franchises with two- and three-year break clauses respectively. National Express Group took this argument a step further, proposing that rather than automatically launching a full tendering process towards the end of contracts, contracts should be made renewable for incumbents who perform well:

    "Were incumbents to be subjected to a review of performance and finances instead, and given the option to negotiate the extension of the franchise, the investment hiatus, the distraction of managers and employees, the wasted effort of handing over the franchise to another operator, and the costs to the DfT and bidders from the competitive process could be avoided."[178]

89. Govia pointed out that there is no transparency about the reasoning behind what appear to be arbitrary choices for the length of franchises. They pointed to the example of the two new Midlands franchises for which the formal bidding round for pre-qualified bidders are now starting. The West Midlands franchise will be 7 years and 10 months, whereas the East Midlands franchise will be 7 years and 4 months. The new Cross Country franchise will be 8 years and 4 months.[179]

90. We recommend that the Government move towards medium-length franchises of up to fifteen years with one or two in-built break-points where contracts may be terminated if performance is unacceptable. We believe longer franchises will enable greater stability, increase the willingness by TOCs to invest, and reduce the cost of re-franchising. The Government already deploys break clauses, and we think they are the key to having longer franchises without losing the ability to set incentives and targets for TOC performance.

Franchise numbers, sizes and types

91. At the time of privatisation, 25 franchises were created. In October 2004, the Government announced that the number of franchises would be reduced from 25 to 19, and a year later, it revealed the exact delineation of its 19 new franchises.[180] Mr Steer explained that four factors had motivated the discussion about the number and size of franchises right from the process of privatisation:[181]

i.   Commercial and operational coherence, defined by the market served (intercity, regional or commuter) and the physical configuration of the network

ii.  The benefit of continuity (including onwards from BR's devolved management structures)

iii.  The economics of the franchising process which do not help the case for small franchises

iv.  The desire to reduce complexity on the railway, including the number of contractualised operational interfaces.

92. ATOC was content with the current re-mapping exercise because it matches Network Rail's structure more closely, but the organisation also emphasised that there should be no further reduction in the number of franchises just for the sake of it. It was noted that there are very good structural reasons for having a variety of sizes and types of franchises.[182] The Railfuture Passenger Committee was also broadly content with number and sizes although it thought it was questionable whether the Northern franchise, which spans three local government regions and five PTEs might have become too large.[183] The Chartered Institute of Logistics and Transport argued that in operational terms, it was beneficial to have as few interfaces as possible, and that there was some justification for having fewer franchises. The Institute also pointed out that the cost of bidding and letting franchises was more or less the same irrespective of the size of the franchise, and fewer franchises would therefore be more cost-effective for the system as a whole.[184]

93. With the creation of the two new Midlands and the Cross Country franchise, the number and sizes of franchises across the network is broadly sound. Any further re-mapping should be undertaken only if there are compelling operational reasons for doing so.

Controlling operator costs

94. Professor Chris Nash raised concerns that franchise operators were failing to control their costs since the Hatfield crash. During the first few years after rail privatisation, operator costs had declined significantly, but this trend had been reversed in recent years. His research indicated that for the four years directly post-Hatfield train operating costs appear to have gone up 47 per cent in real terms when track access charges and rolling stock leasing payments are controlled for. Professor Nash indicated that part of this cost increase was likely to be caused by entirely valid reasons such as increased pension liabilities and higher energy prices;[185] the introduction of more expensive, sophisticated rolling stock; and more tightly defined quality standards in franchise agreements.[186] However, these factors did not come close to explaining the scale of the increase, and Professor Nash believed this was a significant problem in need of attention.[187]

95. Train operators rejected the view that their costs had increased unreasonably, and as a result of anything other than factors beyond their control. ATOC argued that the mere fact that operators were now carrying more passengers and running more trains was a contributory factor to the increase in costs, and noted that the cost of external factors such as insurance, policing and fuel had increased above inflation.[188] Mr Franks from National Express Group argued that in the case of one of its operating companies which has a cost base of £450 million, only £25-50 million were variable costs, whilst the largest slice of its cost base was track access charges, ROSCO costs, or services which are driven by the timetable. "The timetable requires a number of trains, a number of drivers and a number of staff on trains and at stations so the true variable element of a cost base for a train operating company is very small.[189]

96. The Government was not concerned by the developments in operator costs because:

    "When we are letting a franchise, we are not actually interested in what the costs of the franchisee are, although we are very interested in whether their cost reduction plans are realistic or in what their revenue is, though we are very interested in whether their revenue increase plans are realistic, because the price that they are bidding to us is the difference between the two. So if a train operating company looks at an opportunity and says, "Look, if I spend an extra £1 million on improving catering or recruiting extra revenue protection staff, that will generate £2 million of revenue" then they will do it and that must be in both their interests and ours. So we have no separate aim of controlling their cost line. We are very concerned about the gap between revenue and costs, which is what they bid to us."[190]

97. This argument is, however, not valid on two counts. Firstly, if operators fail to control costs, they are likely to increase fares unnecessarily and to the detriment of passengers. Secondly, the argument only holds if the Government is indeed rock-solid in its commitment not to re-negotiate the contracts of operators who get into financial difficulties. If operators entertain any notion that they can go cap-in-hand to the Government, the Government could end up bearing the cost of slack cost control. The Government must ensure, through franchising contracts, that franchise operators keep their costs tightly under control.


142   Ev 142 [Department for Transport] Back

143   Ibid. Back

144   See Ev 42 [Railfuture Northeast]; Q 30 [Mr Metcalf, GNER; Mr Franks, National Express Group]; Q 204 [Mr Valk, NedRailways]; Q 244 [Mr Segal, MVA]; Q 288 [Ms Bonar, Chartered Institute of Logistics and Transport]; Q 290 [Professor Nash] Back

145   Department for Transport, A guide to the railway franchise procurement process, 31 March 2006, para 13 Back

146   Ev 142 [Department for Transport] Back

147   Q 31 [Mr Furze-Waddock, First Group; Mr Smith, Govia]  Back

148   Ev 13 [National Express Group] Back

149   Q 30 [Mr Franks, National Express Group[; See also Q 225 [Mr Segal, MVA]; Q 288 [Ms Bonar, Chartered Institute of Logistics and Transport]; Q 360 [Mr Emery, ORR] Back

150   Ev 132 [Office of Rail regulation] Back

151   Ev 195 [Jim Steer] Back

152   Q 143 [Mr Foxall, Passenger Focus] Back

153   Q 166 [Mr Sargant, PTEG] Back

154   Q 475 [Mr Lambirth, Department for Transport] Back

155   Q 169 and 170 [Mr Valk, NedRailways] Back

156   Ev 222 [Professor Knowles] Back

157   Ev 195 [Mr Steer] Back

158   The Greater Western contract is a ten-year contract running from 1 April 2006, with the final three years dependant on performance targets being achieved.The Integrated Kent Franchise is an eight year contract running from 1 April 2006 with the final two years dependent on meeting targets. Back

159   See for example Ev 191 [Transport 2000] Back

160   Q 20 [Mr Metcalf, GNER]; Ev 9 [Govia] Back

161   Q 22 [Mr Austen, ATOC] Back

162   Q 21 and 22 [Mr Furze-Waddock, First Group] Back

163   Ev 109 [Chartered Institute of Logistics and Transport] Back

164   Ev 115 [Professor Chris Nash]; Q 116 [Mr Foxall, Passenger Focus] Back

165   Ev 191 [Transport 2000]; See also See Ev 208 [Lord Bradshaw]; Ev 208 [Simon Norton] Back

166   And formerly the SRA. Back

167   Ev 59 [Merseytravel] Back

168   Ev 91 [MVA Consultancy] Back

169   This is most likely to occur in cases where the franchise operator has decided to divest and not to apply for the re-franchise, or where poor performance has already made a re-award unlikely. In that situation, there is no incentive to invest, or even to maintain or improve performance standards.  Back

170   Ev 42 [Railfuture Northeast]; Ev 109 [Chartered Institute of Logistics and Transport] made the same point, but also explained that "arrangements are beginning to be put in place for the DfT to 'buy' the remaining life of the investment from the franchisee - albeit this can create a contingent liability for the DfT which they have been traditionally reluctant to accept." Back

171   Ev 13 [National Express Group] Back

172   Ev 39 [Railfuture] Back

173   Ev 191 [Transport 2000] Back

174   Ev 13 [National Express Group] Back

175   Q 238 [Mr Ford] Back

176   Ev 109 [Chartered Institute of Logistics and Transport] Back

177   Ev 39 [Railfuture]; See also Ev 13 [National Express Group] Back

178   Ev 13 [National Express Group] Back

179   Ev 9 [Govia] Back

180   Ev 142 [Department for Transport] Back

181   Ev 195 [Mr Steer]; The North West Group of Labour MPs (Ev 205), though broadly content with the recent franchise re-mapping, argued that in the North West, increases in capacity and coordination between different operators would be crucial in improving services for passengers. In particular, commuter services needed to be seen as separate from long-distance services.  Back

182   Ev 1 [ATOC] Back

183   Ev 39 [Railfuture] Back

184   Ev 109 [Chartered Institute of Logistics and Transport] Back

185   Qq 225-228 [Professor Nash] Back

186   Ev 115 [Professor Nash]; see also Q 234 [Ms Bonar, Chartered Institute of Logistics and Transport] Back

187   Q 283 [Professor Nash] Back

188   Q 40 [Mr Austin, ATOC] Back

189   Q 40 [Mr Franks, National Express Group] Back

190   Q 412 [Mr Lambirth, Department for Transport] Back


 
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