Virgin Rail and the right to challenge

The origins of the Virgin Rail scandal last month rapidly became lost in the recrimination and blame, as the Department for Transport attempt to apportion culpability and pundits discuss the role and capabilities of the civil service. When self-styled “tie-wearing adventurer” Richard Branson launched his legal challenge to the West Coast franchise decision two months ago, it was widely regarded as a knee-jerk, even ill-considered action of a man known for scrappy battles on behalf of his business.

The DfT was due to award a long term franchise to FirstGroup until “significant technical flaws” became evident during their preparations for the Virgin lawsuit. These flaws became evident in the risk assessments of First’s winning bid.

Virgin faced substantial risks in mounting a challenge to the DfT. Some of these risks were revealed in the initial media coverage of the challenge that portrayed Richard Branson as an opportunist and a sore loser (not helped by Virgin Rail’s relatively poor public reputation). If the legal case had failed Virgin’s commercial reputation (and finances) would have suffered.

They had a number of options, all of them risky:

Under Public Procurement law Virgin could mount a formal challenge. To do this they would have to allege that the contracting authority has run the process in an unfair or opaque manner. If they were successful in this, the contract award would have to be suspended while the issue is resolved – allowing more time to discover exactly what happened (and why they lost).

Their second option would be a judicial review. They would need to show a public interest in such an action – easily achieved, given the political climate – but the latter stage would be more difficult. Virgin would essentially have to prove that no reasonable authority would have made the contract decision. Before the events of last month, this was considered unlikely to happen.

In the event, Virgin were able to prove that large parts of the process was flawed. The DfT has spent the last few weeks apportioning blame, mainly directing it at the civil servants involved. In turn, there has been a lot of scrutiny directed at the structure of the procurement process –

A great many qualified professionals have been lured out the public sector by higher wages in recent months, and this, combined with poor systems of review, greatly contributed to the fiasco. We have been discussing government initiatives on this blog for months – all of them seem doomed to failure if the Civil Service can’t do something to arrest the skills gap in government procurement.

Richard Branson’s decision to challenge has been vindicated. The DfT has ordered a number of independent reviews and Virgin has been awarded a short term contract under circumstances that some rivals claim were actively uncompetitive (there should have been a tender for the contract extension). Since the fiasco Virgin has changed strategy dramatically, aiming to expand its market share into the East Coast lines that GNER and National Express mismanaged back into government hands three years ago (under contracts similar to the one offered to FirstGroup). They will likely also retain the West Coast franchise in the long term, if they can see off competition from Abellio.

Virgin Rail weighed up the risks inherent in challenging the bid and made the strategic decision to do. Meanwhile, we’ve been noticing that numerous tenders are having their deadlines put back – maybe as a result of jumpy procurement officials? Win that Bid can help you weigh up the risks in your own bids, and comprehend the contracting authority.