Railway Reform: Toolkit for Improving Rail Sector Performance - ppiaf

Railway Reform: Toolkit for Improving Rail Sector Performance
Annex 5: Passenger Service Contract Guide
in accordance with Good Industry Practice. Whether the Contractor should be
liable for excessive noise and vibration, i.e., if Good Industry Practice was not
applied and the cause of the problem is that either or both the Below Rail Infrastructure
and equipment has not been properly maintained depends upon the
scope of the Transport Services. If the Contractor is not responsible for either
infrastructure or rolling stock, it should have no liability and should be entitled to
an indemnity.
2.19 Intervening Events
Intervening Events are events that impact upon the ability of one party to the
Transport Services Contract to perform its obligations or to receive the benefits
under the Transport Services Contract. There are many ways to identify and specify
the consequences of these Intervening Events. This Guide uses Changes in
Service and Force Majeure Events.
Changes in Service are designed to cater for events that arise and are at PTA risk,
that result in Contractor loss of income or increased costs, or both. Such events
are more appropriately dealt with through compensation than by being declared
a PTA Default because termination of the Transport Services Contract should be
a last resort in all circumstances. Although, if an event renders the parties’ contractual
relationship untenable, the PTA may choose to exercise its voluntary
termination rights. Increased costs or income loss can arise through the following
circumstances:
• Timetable changes
• PTA breach of obligation, which includes a breach or delay occasioned by
third parties for which the PTA is responsible
• PTA request for Changes in Services
• Discriminatory or specific changes in law
• Railway sector or other specific events, e.g., a Special Event or occurrence of a
Disaster
• Changes in safety regime
• Changes in fares or discounts, if the Contractor receives reimbursement
through the fare box
• Changes in staff training standards
• Changes in disability access
• Contractor request for a Change in Service that enhances service delivery that
exceeds the level contemplated at tender, and to which the PTA agrees.
If the TSC includes provisions for bonuses and penalties, the Contractor’s liability
also should be relieved for the period of delay or disruption if and to the extent
that it arises from the Change in Service. As to whether the PTA should be entitled
to a foregone bonus is more problematical since it is difficult to demonstrate
that a bonus would have been awarded had it not been for the Intervening Event.
It may be possible for the Contractor to show examples that indicate that the PTA
timed the Change in Service to save itself money.
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