Section one: Contracting authority/entity
one.1) Name and addresses
Transport for Wales and Transport for Wales Rail Limited (Utility Buyer)
3 Llys Cadwyn, Pontypridd
Rhondda Cynon Taf
CF37 4TH
Contact
Head of Procurement
Telephone
+44 3333211202
Country
United Kingdom
NUTS code
UKL - Wales
Internet address(es)
Main address
Buyer's address
https://www.sell2wales.gov.wales/search/Search_AuthProfile.aspx?ID=AA80566
Section two: Object
two.1) Scope of the procurement
two.1.1) Title
Valley Rail Partnership No.2 LLP for the manufacture, supply, maintenance and leasing of 36 x 3-car Citylink metro units (the “Metro Units”)
two.1.2) Main CPV code
- 34600000 - Railway and tramway locomotives and rolling stock and associated parts
two.1.3) Type of contract
Supplies
two.2) Description
two.2.2) Additional CPV code(s)
- 50220000 - Repair, maintenance and associated services related to railways and other equipment
two.2.3) Place of performance
NUTS codes
- UKL - Wales
Main site or place of performance
Cardiff and South Wales Valleys
two.2.4) Description of the procurement at the time of conclusion of the contract:
Rolling stock leasing agreement and associated maintenance arrangements between Keolis Amey Operations / Gweithrediadau Keolis Amey Limited (“KA”), the then operator of the Wales and Borders Franchise and Valley Rail Partnership No.2 LLP, Stadler Rail Valencia S.A.U and Stadler Rail Service UK Limited for the manufacture, supply, maintenance and leasing of 36 x 3-car Citylink metro units (the “Metro Units”)
two.2.7) Duration of the contract, framework agreement, dynamic purchasing system or concession
Duration in months
300
two.2.13) Information about European Union Funds
The procurement is related to a project and/or programme financed by European Union funds: No
Section four. Procedure
four.2) Administrative information
four.2.1) Contract award notice concerning this contract
Notice number: 2019/S 000-000000
Section five. Award of contract/concession
Contract No
02
Title
Valley Rail Partnership No.2 LLP for the manufacture, supply, maintenance and leasing of 36 x 3-car Citylink metro units (the “Metro Units”)
five.2) Award of contract/concession
five.2.1) Date of conclusion of the contract/concession award decision:
23 January 2019
five.2.2) Information about tenders
The contract/concession has been awarded to a group of economic operators: Yes
five.2.3) Name and address of the contractor/concessionaire
Valley Rail Partnership No.2 LLP
3rd Floor, South Building, 200 Aldersgate Street
London
EC1A 4HD
Country
United Kingdom
NUTS code
- UKI - London
National registration number
OC425122
The contractor/concessionaire is an SME
No
five.2.3) Name and address of the contractor/concessionaire
Stadler Rail Service UK Limited
1 Mann Island (8th Floor)
Liverpool
L3 1BP
Country
United Kingdom
NUTS code
- UKD - North West (England)
National registration number
09894948
The contractor/concessionaire is an SME
No
five.2.3) Name and address of the contractor/concessionaire
Stadler Rail Valencia S.A.U
Polígono Industrial del Mediterráneo, Carrer Mitgera, 6, 46550
Valencia
Country
Spain
NUTS code
- ES523 - Valencia/València
The contractor/concessionaire is an SME
No
five.2.4) Information on value of the contract/lot/concession (at the time of conclusion of the contract;excluding VAT)
Total value of the procurement: £461,557,000
Section six. Complementary information
six.3) Additional information
The original procurement was carried out by a private company, Keolis Amey Operations / Gweithrediadau Keolis Amey Limited (“KA”), the then operator of the Wales and Borders Franchise. Therefore it was not required to be advertised in accordance with Directive 2014/24/EU or Directive 2014/25/EU.
(WA Ref:127509)
six.4) Procedures for review
six.4.1) Review body
High Court
Royal Courts of Justice, The Strand
London
WC2A 2LL
Telephone
+44 2079477501
Country
United Kingdom
six.4.3) Review procedure
Precise information on deadline(s) for review procedures
As set out in the Public Contracts Regulations 2015 / Utilities Contracts Regulations 2016
Section seven: Modifications to the contract/concession
seven.1) Description of the procurement after the modifications
seven.1.1) Main CPV code
- 34600000 - Railway and tramway locomotives and rolling stock and associated parts
seven.1.2) Additional CPV code(s)
- 50220000 - Repair, maintenance and associated services related to railways and other equipment
seven.1.3) Place of performance
NUTS code
- UKL - Wales
Main site or place of performance
Cardiff and South Wales Valleys
seven.1.4) Description of the procurement:
Valley Rail Partnership No.2 LLP for the manufacture, supply, maintenance and leasing of 36 x 3-car Citylink metro units (the “Metro Units”)
seven.1.5) Duration of the contract, framework agreement, dynamic purchasing system or concession
Duration in months
420
seven.1.6) Information on value of the contract/lot/concession (excluding VAT)
Total value of the contract/lot/concession:
£530,007,000
seven.1.7) Name and address of the contractor/concessionaire
Valley Rail Partnership No.2 LLP
3rd Floor, South Building, 200 Aldersgate Street
London
EC1A 4HD
Country
United Kingdom
NUTS code
- UKI - London
National registration number
OC425122
The contractor/concessionaire is an SME
No
seven.1.7) Name and address of the contractor/concessionaire
Stadler Rail Valencia SAU
Valencia
Country
Spain
NUTS code
- ES523 - Valencia/València
National registration number
Polígono Industrial del Mediterráneo, Carrer Mitgera, 6, 46550 Albuixech,
The contractor/concessionaire is an SME
No
seven.1.7) Name and address of the contractor/concessionaire
Stadler Rail Service UK Limited
1 Mann Island (8th Floor)
Liverpool
L3 1BP
Country
United Kingdom
NUTS code
- UKD - North West (England)
National registration number
09894948
The contractor/concessionaire is an SME
No
seven.2) Information about modifications
seven.2.1) Description of the modifications
Nature and extent of the modifications (with indication of possible earlier changes to the contract):
Due to Covid-19 restrictions / related matters, TfWRL replaced KA in February 2021 under s.30 of the Railways Act 1993. TfWRL and its parent TfW are contracting authorities and also utilities in relation to the rail network. Due to Welsh Government's and TfW's decision to retain in the public sector maintenance workers who had transferred from KA to TfWRL under TUPE, changes were negotiated to the maintenance agreements associated with the Metro Units so that the agreements become Technical Support and Spares Supply Agreements (TSSSAs) instead of Train Services Agreements (TSAs), with TfWRL taking over the role of the maintainer of the Metro Units. TfWRL will replace SRS UK as maintainer, with SRS UK taking on a technical support and spares supply role. As a result of the change in maintainer of the Stadler Fleets, some knock-on amendments to the Manufacture and Supply Agreements (MSAs) are also required, to bring them in line with the change in maintenance arrangements. As a consequence of these changes, the leasing arrangements have been extended in order to deal with the impact on the residual value risk for the Owner of the Metro Units of moving to a TSSSA maintenance arrangement, protecting the exclusive rights of the Owner as the owner of the Stadler Fleets. A move from TSAs to TSSSAs exposes the Owner to additional risks, in particular re: its ability to re-lease the Metro Units at the end of the period of the undertaking under s.54 of the Railways Act 1993 provided by Welsh Government, being 31 December 2048. In order to protect the Owner against these additional risks, and to protect the exclusive rights of the Owner as the owner of the Stadler Fleets, the s.54 undertakings are to be extended for a further 10 years, to 2058. Further, as Stadler owns the Intellectual Property in the Metro Units, as the original supplier of the Metro Units, the parties jointly agree that in order to protect the exclusive rights of Stadler, Stadler will provide the revised TSSSA services (and assist TfW in providing the revised maintenance arrangements). It would not be practically possible from an IP ownership perspective nor a technical perspective for anyone other than Stadler to perform the strategic TSSSA service and role.
TfW/TfWRL relies on R.72(1)(c) of the Public Contracts Regulations 2015 (PCR) / R.88(1)(c) of the Utilities Contracts Regulations (UCR) 2016 as set out below. Further or in the alternative. TfW/TfWRL relies on R.72(1) (b) of PCR / R.88(1)(b) of UCR on the grounds that it would not be technically possible for another supplier to provide the revised arrangements which have become necessary in respect of the Metro Units without serious inconvenience or duplication of cost. This is given Stadler's technical knowledge and experience with the Metro Units, as the original supplier of the Metro Units, and the fact that the Owner owns and controls the Metro Unit fleet.
Further or in the further alternative, TfW/TfWRL relies on R.32(2)(b)(ii) and/or (iii) PCR / R.50(1)(c)(ii) and/or (iii) UCR (competition is absent for technical reasons and/or protection of exclusive rights) because only the Owners of the Metro Units can provide the revised lease arrangements detailed above (as the owner of the Metro Unit fleet), and Stadler's knowledge and experience of the Metro Units and ownership of IP rights in terms of being able to provide the technical support and spares supply required by these TSSSA maintenance arrangements. Given the additional risks to which the Owner is exposed, the conditions set out above play an important role in the feasibility of the move from a TSA to a TSSSA.
seven.2.2) Reasons for modification
Need for modification brought about by circumstances which a diligent contracting authority/entity could not foresee.
Description of the circumstances which rendered the modification necessary and explanation of the unforeseen nature of these circumstances:
The impact of Covid-19 restrictions made it commercially unviable for KA to continue operating train services and forced TfWRL to step in as operator of last resort. This caused the maintenance employees (who would otherwise have transferred from KA to the Metro Units maintainer, Stadler) to come into public sector employment. Welsh Government and TfW made a decision not to transfer these employees to the private sector. This necessitated the change from TSAs to TSSSAs (as above). The leasing arrangements have been extended in order to deal with the impact on the RV risk for the Owner of moving to a TSSSA maintenance arrangement, so as to protect their exclusive rights and contractual position as the owner of the fleet. Alternatively, TfW/TfWRL rely on the equivalent provisions of R.88(1)(c) of the Utilities Contracts Regulations 2016.
seven.2.3) Increase in price
Updated total contract value before the modifications (taking into account possible earlier contract modifications, price adaptions and average inflation)
Value excluding VAT: £461,557,000
Total contract value after the modifications
Value excluding VAT: £530,007,000