Go-Ahead Dublin City Routes - Updates and Discussion

AlekSmart wrote: »

There is now,no good reason for the details of this contract to be witheld,and if it pleases the court,Justice...There is now, no good reason for the Bus Eireann Waterford Contract to remain secret either.

What about protecting the interests of GAI and their commercial interests which is a genuine recognised competing interest with the public interest.

monument wrote: »

Commercial sensitivity is often used as an excuse both here and in the UK.

https://www.ocei.ie/decisions/lar-mckenna-and-eirgrid-p/CEI-16-0039.pdf

GM228 wrote: »

Alek, you keep going on and on about the Authorities failures etc, however, what you have failed consistently to recognise is that in order for such contracts to be made public there must be all party agreement such as what would have happened in the M&A contract.

That's untrue.

If the NTA came to the view in a request process or in an internal review proess to the request (or on a appeal the Information Commissioner ruled) that it was in the public interest to release any contract etc, then the contract or other record must be released.

It's not that simple.

First and foremost the protection of commercial sensitivity and confidentiality are common law protections afforded to all commercial contracts and recognised in commercial law, it stems from the common law doctrine of privilege.

No body can release any commercially sensitive information without permission of the party involved. There is an exception, that being where the public interest balance test is applied (which I assume is what you mention above), but, competing rights and interests are now tugging at each other. Despite being called  the "public interest", it is actually a joint public/party involved interest.

Even when a body does decide to release such under the test the party involved must be informed first and allowed to claim their right to commercial sensitivity if they so wish, or agree to disclosure. If they choose to try to enforce their commercial sensitivity and the body still wishes to release then the party can appeal to the Information Commissioner (OIC), and even if the OIC allows for release the party can appeal further to the High Court on a point of law and then again to the Supreme Court.

This has happened on a few occasions including right up to the Supreme Court, defeating the commercial sensitivity stance is difficult when there is genuine sensitivity and a potential consequence is a material financial loss, gain or prejudice to the competitive position of the party, this is interesting test in that the test for such does not deal with the actual information which could be released, but rather with the damage it could do to the parties involved. In other words if it went to court the court would not be concerned with any argument such as it will tell the public X, Y or Z, rather the court will be concerned with the argument that the release of X, Y or Z could undermine the party.

The OIC has previously held that commercially tendered contracts contain both commercially sensitive and confidential information, following award generally the price, type and quantity of the goods supplied loose this which is why the NTA release the overall tender cost and what is required of the contract. I.e it cost €170M to run X for X amount of time.

To apply the public interest test there must also be some sort of public policy or interest requiring such, and the OIC does not have the power to make such a policy itself as there must be a true public interest in release, not your private interest in the matter.

AlekSmart wrote: »

I thoroughly applaud Go-Ahead for "looking after their own interests",as will their shareholders,and I will similarly applaud the NTA,if and when,it clarifies it's position regarding the post 2018,JJ Kavanagh and Go-Ahead Tendered PSO Contracts.

What changed the original policy,and if so,why was that change not publicised ?

Why do you think there is a "policy" which has changed? The NTA have already clarified their position through a few news sources (and personally if you contact them) that the contracts will not be made public due to commercially sensitivity.

NTA can not release any commercially sensitive information in the first instance without the permission of the party involved, that is a statutory requirement. M&A, JJ, GAI etc acceptance of release or not has nothing to do with policy.

AlekSmart wrote: »

I was initially satisfied that it was mere unfamiliarity with the new process that was the issue,however it is now becoming apparent that the initial transparency and openess was dispensed with in 2018,without any accompanying announcement.

What announcements do you want? As I said above the NTA have been quoted as saying why they are not available. If you make a FOI request you will even get a personalised in depth explanation from them.

AlekSmart wrote: »

However,it does appear that our Authority has significant (Boards.ie) support for continuing the process in fully cloaked mode,so any illumination will have to be torch or candlelit !

Who says anyone supports it? We are merely pointing out the reasons for it, and it is not support from Boardies, they have the support of statute, common law, legal doctrines and maxims and the OIC.

monument wrote: »

Companies entering into any business with the State or its bodies have to understand that documents may be subject to FOI or AIE requests and the bodies cannot pre-determine non-release.

Yes they can because it's a common law doctrine which is well established and automatically applied in all contracts.

dfx- wrote: »

The NTA are the one with the award, why not put it as a pre-condition for all bidders into the tender that the result will be publically available? They are happy to put all sorts of pre-conditions into the direct awards..

It's an odd situation to the have the winners of the contract holding the cards.

In essence you would be trying to contract someone out of a legal right which is a massive no no in law. The right to protect commercially sensitive information and confidentiality are fundamental prerequisites in contract law.

GM228 wrote: »

What about protecting the interests of GAI and their commercial interests which is a genuine recognised competing interest with the public interest.

It's not that simple.

First and foremost the protection of commercial sensitivity and confidentiality are common law protections afforded to all commercial contracts and recognised in commercial law, it stems from the common law doctrine of privilege.

No body can release any commercially sensitive information without permission of the party involved. There is an exception, that being where the public interest balance test is applied (which I assume is what you mention above), but, competing rights and interests are now tugging at each other. Despite being called  the "public interest", it is actually a joint public/party involved interest.

Even when a body does decide to release such under the test the party involved must be informed first and allowed to claim their right to commercial sensitivity if they so wish, or agree to disclosure. If they choose to try to enforce their commercial sensitivity and the body still wishes to release then the party can appeal to the Information Commissioner (OIC), and even if the OIC allows for release the party can appeal further to the High Court on a point of law and then again to the Supreme Court.

This has happened on a few occasions including right up to the Supreme Court, defeating the commercial sensitivity stance is difficult when there is genuine sensitivity and a potential consequence is a material financial loss, gain or prejudice to the competitive position of the party, this is interesting test in that the test for such does not deal with the actual information which could be released, but rather with the damage it could do to the parties involved. In other words if it went to court the court would not be concerned with any argument such as it will tell the public X, Y or Z, rather the court will be concerned with the argument that the release of X, Y or Z could undermine the party.

The OIC has previously held that commercially tendered contracts contain both commercially sensitive and confidential information, following award generally the price, type and quantity of the goods supplied loose this which is why the NTA release the overall tender cost and what is required of the contract. I.e it cost €170M to run X for X amount of time.

To apply the public interest test there must also be some sort of public policy or interest requiring such, and the OIC does not have the power to make such a policy itself as there must be a true public interest in release, not your private interest in the matter.

Why do you think there is a "policy" which has changed? The NTA have already clarified their position through a few news sources (and personally if you contact them) that the contracts will not be made public due to commercially sensitivity.

NTA can not release any commercially sensitive information in the first instance without the permission of the party involved, that is a statutory requirement. M&A, JJ, GAI etc acceptance of release or not has nothing to do with policy.

What announcements do you want? As I said above the NTA have been quoted as saying why they are not available. If you make a FOI request you will even get a personalised in depth explanation from them.

Who says anyone supports it? We are merely pointing out the reasons for it, and it is not support from Boardies, they have the support of statute, common law, legal doctrines and maxims and the OIC.

Yes they can because it's a common law doctrine which is well established and automatically applied in all contracts.

In essence you would be trying to contract someone out of a legal right which is a massive no no in law. The right to protect commercially sensitive information and confidentiality are fundamental prerequisites in contract law.

The more I read through the copious amounts of (argueably) hugely valid reasons for the National Transport Authority refusing to make public,certain Tendered PUBLIC Service Obligation Contracts, I become MORE confident that the Authority,and those parties who fear the new era of openess and accountability,will end up being forced to belatedly reveal the details.

It won't be in Court,but will most likely be a result of a single thread being pulled which will eventually result in the ball of wool running out.

Somwhere in all of this totally unnesessary and indefensible administrative mess,may lurk a Maurice McCabe....?

antoinolachtnai wrote: »

Transport for London does not seem to have fallen into a pit of litigation and penury as a result of publishing its rates/mile for its tenders. This is in spite of operating under broadly the same EU and common law system as us.

Simply stating that TfL release the £/mile details is not very comparative though because the NTA don't have €/kilometre contracts.

As I said in my previous post contracts generally loose any confidentiality in relation to price, type and quantity of the goods supplied. This is well established.

The NTA operate Gross and Net Cost contracts with an overall payment value - which the NTA have released.

TfL operate Quality Incentive Contracts with a mileage based value payment - which TfL have released. (They stopped using Gross and Net Cost contracts in 2001).

Both sides have released the price, type and quantity of the goods supplied aspects of their contracts based on the contract type.

GM228 wrote: »

Who is going to force them?

Do you believe we need a whistle blower, and if so what would he/she be blowing the whistle on? And if we do need a whistle blower are you suggesting a potential unlawful, illegal, unethical or otherwise wrong practices within the NTA or GAI and beyond? Or perhaps there is nothing to expose because the NTA et al have just exercised a right and privilege afforded to any other commercial transaction

I believe that "We" should'nt need a Whistleblower,or any dark force to ensure the publication of A Contract Schedule,the contents of which are required by stakeholders in order to independently verify the entire BMO process.

You are,of course again,correct when you assert that "Perhaps" there is nothing to expose,but then again,could it possibly transpire that,"perhaps",there are actual elements worth exposing ?

PeadarCo wrote: »

Do we know it for any contractor including Dublin Bus. As a user I don't care who runs it day to day providing they obey the laws of the state and get me from A to B. And if they are bad at, that there are consequences. This thread has been extremely enlightening on how the bus system operates. However while it is interesting when I use the bus NTA, Dublin bus, go ahead they are fundementally the same. Even though it is interesting to see the challenges in running a service that is taken for granted.

We do indeed know the Contractual Requirements which Dublin Bus operate under,as they have been in the public domain since inception.

There are 204 pages of detail to satisfy the curiosity of the interested stakeholder,or disinterested browser alike.

https://www.nationaltransport.ie/wp-content/uploads/2011/12/Dublin_Bus_Direct_Award_Contract_Schedules_Amended_03-2017_Website.pdf

It is worth noting however,that the rights of those who do not care who operates their services,are fully maintained in all of this.

The full availability of these Contract Specifications,for a range of the Authority's Tendered PSO Contracts,does not impose a compulsion on anybody to read them.

Those stakeholders,who do have an interest,whether that be from a providers or users perspective are largely required to stfu.

I see the need for clarity on the Authority's PSO Contract Specifications,as being a VERY basic element,entirely in the Public Interest,as it allows for informed Public consideration of the the entirety of the PSO Tendering process.

What,for example,is the situation regarding breakdowns or service disruption on a corridors served by Both PSO operators in Dublin?

Has the Authority made any contractual operational provision for Customers suffering a disrupted journey on a GAI route,to transfer seamlessly to a BAC vehicle cabable of carrying them further,or will they have another fare requested of them on that operators vehicle?

Secret Contractual requirements may well be seen,by some,as an absolute requirement for the survival of commercialism and business,however it rarely serves to maintain or improve the service to the end user,and it's not going to do it in this case either.

I am greatly heartened by the increasing temperature surrounding the issue,as with each exchange,and the interest of other posters unaware of the current situation,the inevitability of publication grows ever closer.

GM228 wrote: »

Why don't you make a FOI request to the NTA in the interests of the publics better good and when they reject it appeal to the ICO, if they uphold it figure out what point of law you wish to raise on the issue at the High Court and go from there....

Otherwise the debate will keep going round and round.

No thanks,I prefer the centrifugal force which comes from going round & round.

Having ordinary decent folk,resort to challenging arcane Legal precedent stretching back centuries,is not where a 21st Century Public Transport Authority should be,in terms of Public Accountability.

In reality,it should be up to JJ Kavanagh,the Go-Ahead Group,or whichever Tenderer desires a cloak of secrecy around their business,to justify this,rather than the General Public being forced to head for the 4 Courts.

Being forced to submit a FoI request,to access the mundane specifications of a Public Bus Service Contract is about the least democratic thing a Citizen of any Republic should have to do.

I'll just have to wait it out,until the Authority eventually has to make it's choice.

It all comes to those who wait...even,occasionally,a Bus.

Fizzy Duck wrote: »

I'm happy enough. Nearly a year there now.

Happy with a 29cent an hour pay rise. Good man.

The more GAI miss their launch dates and operate their routes inefficiently the increasingly fascinated I become about the tenders. I surely can’t be the only one?

Has anyone else noticed how filthy the outside of the new GA busses are? This doesn’t bode well for how the interiors will hold up over time.

AlekSmart wrote: »

No thanks,I prefer the centrifugal force which comes from going round & round.

A well known phrase "all talk...." comes to mind

Seriously though if you feel so strongly about the subject I fail to see why you don't make the very basic initial first steps to get the information you seek and see how it goes? If you are willing to just ride the merry go round then it is unlikely what you seek will come to the public domain, ever.

AlekSmart wrote: »

Having ordinary decent folk,resort to challenging arcane Legal precedent stretching back centuries,is not where a 21st Century Public Transport Authority should be,in terms of Public Accountability.

Arcane?

You do realise that most common law develops over time don't you? It's not a case of a 100 year old rule being followed to the letter, rather the origins of a principle, doctrine, rule etc may date back a long time, but are regularly tested, modified, enhanced (or simply upheld) as times change. The historical jurisprudence in any particular field can be very interesting, but quite different today.

Some of the most prominent court decisions on matters concerning commercial sensitivity have occurred in very recent years, yes in the 21st century, not centuries ago, cases involving discovery regularly deal with the issue when applying the principles of relevance and necessity seeking discovery of commercially sensitive documents. For example the 2013 Supreme Court Framus Ltd & Ors vs C.R.H Plc & Ors [2013] IESC 23 case is a recent case confirming the principles of commercial sensitivity.

FOI is no different, the 2013 Supreme Court Governors of the Hospital for the Relief of Poor Lying in Women vs Information Commissioner [2013] 1 I.R. 1 case is a authorative case on the issue of FOI and the public interest and is the case which confirmed the ICO does not have the authority to make something a public interest, the interest must be a genuine established public interest, not an interest of yours.

I really don't understand why people slam laws as archaic or slam them when they simply don't understand or accept their reasoning, history and modern application. The various principles are well grounded and well discussed in the modern era, our (and others) judiciary have deemed them appropriate and continue to uphold them.

AlekSmart wrote: »

In reality,it should be up to JJ Kavanagh,the Go-Ahead Group,or whichever Tenderer desires a cloak of secrecy around their business,to justify this,rather than the General Public being forced to head for the 4 Courts.

They don't have to justify it unless someone makes a FOI request, that is the law.

AlekSmart wrote: »

Being forced to submit a FoI request,to access the mundane specifications of a Public Bus Service Contract is about the least democratic thing a Citizen of any Republic should have to do.

Yes being "forced" to make a FOI request is such a non democratic inhumane thing to do, mite even be a breach of some right, mayby a case stated to the ECHR or the ECJ is the appropriate course of action, oh wait, that's right it's an accepted measure under statute, common law and within the principles of the Treaty on the Functioning of the European Union or for example under the UNECE Aarhus Convention in relation to Environmental information.

AlekSmart wrote: »

I'll just have to wait it out,until the Authority eventually has to make it's choice.

It all comes to those who wait...even,occasionally,a Bus.

What choice? They have already stated they won't be released. You may be waiting a long time for any other choice.

AlekSmart wrote: »

I'm patient enough.

I remain very confident that the Schedule of the Go Ahead Ireland Tendered PSO Contract with the National Transport Authority,willbe made public.

I suggest that this will occur within six months.

"All talk",as you may wish to deem it,but hey,it's better than no talk at all..... Jaw Jaw..;) ?

We can revisit this in 6 months and see if the merry go round has run out of steam yet.

Hybrid is meant to be from mid to late this year onwards and full EV are on trial also.

punisher5112 wrote: »

Hybrid is meant to be from mid to late this year onwards and full EV are on trial also.

Dublin Bus will have 3 hybrid demonstrators all branded in a specific Dublin Bus Hybrid livery this month & next.

They are all built from Wrights. They will be named as WH1, WH2 & WH3.