RHA threatens legal action against TfL's FORS 'monopoly'

Emma Shone
February 22, 2018

The industry’s major trade associations have accused TfL of flouting competition law, with the RHA threatening legal action against it for abusing its monopoly for the supply of FORS accreditation power.

The FTA and RHA have suggested that TfL’s contracting out of FORS to Aecom, which led to the introduction of membership fees, prevents it from backing other schemes because it damages its own commercial interest.

They believe FORS’ emergence as the only widely recognised scheme within construction and other business sectors has resulted in it monopolising the safety accreditation space.

Aecom denied FORS was operating a monopoly saying other accreditation schemes were available to operators.

However, RHA chief executive Richard Burnett (pictured), said without backing from TfL, other schemes are worthless. “TfL has created a dominant position in the market for the supply of FORS equivalence,” he said.

“Unless TfL gets behind something and promotes it, or allows the use of FORS branding, then you won’t get construction companies recognising it if you turn up with the sticker on your truck. Without TfL’s backing it’s worthless.”

Failed attempts

The RHA has spent almost two years in talks with FORS operator Aecom trying to develop a framework for its members to have access to scheme membership without the fees – just the price of an audit. It planned to launch the service at the CV Show last April, but told CM Aecom pulled out of the deal at the eleventh hour over fears it would lose too many members to the RHA.

However, Burnett said the deal had safeguards built in to protect Aecom’s commercial interests. “This was never about making money.

It was about creating a good deal for our members,” he said. “It feels like we’ve been deliberately distracted and kept busy for two years so that we couldn’t get equivalence out into the market.”

RHA and Aecom did reconvene at the end of 2017 but Burnett said the offer the other party put on the table was insulting.

He wrote to TfL commissioner Mike Brown earlier this month outlining that if TfL did not admit that FORS is operating as a monopoly and commit to changing this, the RHA would pursue legal action. 

He told CM: “If TfL will not back an equivalent scheme, or the RHA is unable to offer its members FORS as part of equivalence, then we’ve got no choice but to look at this from a competition law perspective. We need confirmation that TfL is going to look at this quickly.”

TfL response

TfL director of city planning Alex Williams told Burnett in a letter: “Our practices are not anti-competitive. We are clear in our contracts that we will consider reasonable alternatives to FORS and welcome other participants as providers of fleet operator compliance audits.”
Burnett said TfL was missing the point of the breach in competition law completely, but added that he remained keen to get round the table with TfL to explore equivalence.

The FTA has also described the situation as a monopoly. Its Truck and Van Excellence schemes were recognised as an equivalent to FORS bronze from July to November 2016, after which FORS changed its standard and TfL took away FTA’s equivalence.

FTA policy director Christopher Snelling said the FTA tried several more times to have its equivalence reinstated, but whenever it got close, FORS moved the goalposts. 

Moving goalposts

“Every time we went back we were given a revised scheme and revised paperwork and a new set of issues.,” he said. “In the end it became apparent that it was not going to work, so at the moment we are not pursuing equivalency with FORS.

“We strongly believe that the way FORS is run today is inappropriate. There’s no option for anyone to use anything other than FORS. It is an effective monopoly.”

Snelling called for TfL to reconsider Aecom’s running of FORS when the contract comes to a close in around two years’ time. “It needs to be a much more open and flexible model that would allow other providers to get into the market and accredit standards,” he said

A spokesman for FORS said the scheme is “open to further collaboration which must be beneficial to all parties and the industry. It is not for FORS to set up or develop other equivalent schemes”.

He added: “The operating community and service buyers are free to decide which accreditation scheme they choose to recognise and uphold. FORS reacts to changing legislation and other market trends in order to deliver a reliable, up-to-date accreditation scheme that promotes best practice in safety, increases efficiency and supports sustainability.”

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