The Public Service Obligations in Transport Regulations 2023

Regulation 21

SCHEDULE 1 Permitted modifications

Provided for in the public service contract

1.  A modification is a permitted modification if—

(a) the possibility of the modification is unambiguously provided for in—

(i) the public service contract as awarded, and

(ii) a notice for the award of that contract published under regulation 22 or 23, and

(b) the modification would not change the overall nature of the public service contract.

Emergency

2.  A modification is a permitted modification if its purpose could otherwise be achieved by the direct award of a public service contract under regulation 16.

Unforeseeable consequences

3.  A modification is a permitted modification if—

(a) the circumstances giving rise to the modification could not reasonably have been foreseen by the competent authority before the award of the public service contract,

(b) the modification would not change the overall nature of the public service contract, and

(c) the modification would not increase the estimated value of the public service contract by more than 50%.

Materialisation of a known risk

4.  A modification is a permitted modification if—

(a) the competent authority considers that—

(i) a known risk has materialised otherwise than as a result of any act or omission of the competent authority or the operator,

(ii) because of that fact, the public service contract cannot be performed to the satisfaction of the competent authority,

(iii) the modification goes no further than necessary to remedy that fact, and

(iv) awarding a further public service contract under these Regulations, instead of modifying the contract, would not be in the public interest in the circumstances, and

(b) the modification would not increase the estimated value of the public service contract by more than 50% ignoring, for the purpose of estimating the value of the public service contract, the fact that the risk has materialised.

5.  In paragraph 4, a “known risk” means a risk that—

(a) the competent authority considered—

(i) could jeopardise the satisfactory performance of the public service contract, but

(ii) because of its nature, could not be addressed in the public service contract as awarded, and

(b) was identified in a notice for the award of the public service contract published under regulation 22, including by reference to—

(i) its meeting the description in sub-paragraph (a), and

(ii) the possibility of modification under paragraph 4.

6.  In considering whether awarding a new public service contract would be in the public interest for the purposes of paragraph 4, a competent authority—

(a) must consider whether a new public service contract could provide more value for money, and

(b) may consider technical and operational matters.

Additional services

7.  A modification is a permitted modification if—

(a) the modification provides for the provision of services in addition to the services already provided for in the public service contract,

(b) using a different operator would result in the provision of services that are different from, or incompatible with, those already provided for in the public service contract,

(c) the competent authority considers that the difference or incompatibility would result in—

(i) disproportionate technical difficulties in operation or maintenance or other significant inconvenience, and

(ii) the substantial duplication of costs for the authority, and

(d) the modification would not increase the estimated value of the public service contract by more than 50%.

Transfer on corporate restructuring

8.  A novation or assignment (or in Scotland, assignation) of a public service contract to an operator is a permitted modification if it is required following a corporate restructuring or similar circumstance.