Area 10 DCP Rates Unaffected by Lump-Sum Payment

769,305 / 769305

22/02/2019 – FoIA to Highways England

1. I ask to be provided, for Area 10, since the inception of the contract in 2012, the above-threshold (£10,000) rates which you have most recently referred to as a ‘Pricing schedule’ and/or ‘schedule of costs components’ but which also have been referred by various employees as:

• DCP (‘damage to Crown property’) Rates
• Defined Costs
• Nominal Rates
• Base Rates

For sake of clarity, it is the schedule of agreed tariffs which are used by your contractors in order to present ‘above threshold’ claims to Highways England for settlement under the terms of their contractual appointment to undertake such repairs to the public highway.

If, with regard to the contract the above terms are not synonymous,

2. please explain the differences, with reference to exact calculations which lead from one descriptive term to another.

By way of background, In 11/2018, a HE employee stated that the ‘DCP’ rates, being those list of rates used to calculate claims as presented to HE for direct payment, were not commercially sensitive.

3. Please advise what rates for above-threshold claims are held and describe same.

4. Are rates for incidents where a recovery against a Third Party (driver, fleet or insurer) is identified in any way subsidized or reduced by the lump-sum payment BBMM receives?

a. If yes, what is that subsidy / reduction, how is this calculated and applied.

5. Are rates for Third Part or culprit -unidentified incidents in any way subsidised / reduced by the lump-sum payment BBMM receives?

a. If yes, what is the subsidy / reduction, how is this calculated and applied.

6. Is any aspect of emergency incident attendance or repair covered by the lump-sum payment and if so?

a. what aspects


25/02/2019 annotation
Good questions. Semantics is what they play at. What irks me about this whole situation is that HE repeatedly say that the reasonable pricing of their repairs is a matter for the Courts to determine, and at the same time refuse to say what their contractors have agreed to charge them, which is the only real data available in a monopoly situation to determine what a reasonable price consists.


26/03/2019 – Internal Review request as no response

I am writing to request an internal review of Highways England Company Limited’s handling of my FOI request ‘The Schedule of Damage to Crown Property Rates – Area 10’.

You have not provided the information I sought within 20 working days nor sought an extension. You are in breach of the law.


15/04/2019 – reply from Highways England

Thank you for your request dated 23 February 2019, please accept my apologies for the delay in responding. I have dealt with your request under the terms of the FOIA.

I have responded to each of your questions in turn:

1. I ask to be provided, for Area 10, since the inception of the contract in 2012, the above-threshold (£10,000) rates which you have most recently referred to as a ‘Pricing schedule’ and/or ‘schedule of costs components’ but which also have been referred by various employees as:

o DCP (‘damage to Crown property’) Rates
o Defined Costs o Nominal Rates
o Base Rates

For sake of clarity, it is the schedule of agreed tariffs which are used by your contractors in order to present ‘above threshold’ claims to Highways England for settlement under the terms of their contractual appointment to undertake such repairs to the public highway.

This question refers to a number of different sets of information. I will address them in turn:
• Pricing Schedule – the schedule of rates contained in the Pricing Schedule of each Asset Support Contract (ASC) contains the rates tendered during the procurement process. These rates have been confirmed by the First Tier Tribunal (EA/2018/0104) to be commercially sensitive and therefore under section 43 FOIA will not be disclosed.
• Schedule of Cost Components – The schedule of cost components is a schedule in the ASC, it can be found at page 101 of the Model ASC
(https://webarchive.nationalarchives.gov.uk/20140603121903/http://assets.highw ays.gov.uk/about-us/procurement-asset-support-
contract/ASC_Model_Conditions_of_Contract.pdf). This schedule does not contain any figures or rates but sets out the heads of costs that may be recovered by the supplier.
• DCP (‘damage to Crown property’) Rates – the ASC contract does not contain a schedule that is used for DCP rates. Highways England does not hold information in the form of a set of rates that is used for third party claims. The recent Information Commissioner’s Office decision supports our decision to respond under section 1 FOIA that this information is not held.
• Defined Costs – The term ‘Defined Cost’ refers to a definition in the contract, the contract does not contain a schedule of Defined Costs. The Defined Cost is calculated in accordance with the definition. This is based on actual costs incurred by the supplier and there is not pre-set schedule of defined cost, or other schedule that is used. The definition is contained at clause 11.1 and is stated as follows:

(27) Defined Cost is o the amount of payments due to Subcontractors for work which is subcontracted without taking account of amounts deducted for
▪ payments to Others and
▪ the supply of equipment, supplies and services included in the charge for overhead costs incurred within the Working Areas in this contract and
o the cost of the components in Schedule 1 for other work less
o the cost of preparing quotations for compensation events where the work affected forms part of the Lump Sum Duties and
o Disallowed Cost.

• Nominal Rates and Base Rates – these terms are not recognised as terms under the contract, a search for these terms confirms this.

As previously advised, we do not hold Schedules of DCP rates, in name or function. Each incident is treated on its own merits in line with the relevant contract. The reasonable repair costs are built up from Defined Costs using the Schedule of Cost Components (as defined in the contract) plus fees and third-party overheads, where appropriate. The Defined Cost is the actual cost of undertaking the individual third party repair.

If, with regard to the contract the above terms are not synonymous,

2. please explain the differences, with reference to exact calculations which lead from one descriptive term to another.

By way of background, In 11/2018, a HE employee stated that the ‘DCP’ rates, being those list of rates used to calculate claims as presented to HE for direct payment, were not commercially sensitive.

The term DCP rates is not a defined term and unfortunately has been used inconsistently. Without a direct reference to the comment y one of our employees it is not possible to comment.

If further clarification is required, please provide the details of the correspondence or source of this statement.

The costs included in the cost breakdown document or invoice to the insurance company are not commercially sensitive, and therefore disclosed on a case by case basis.

3. Please advise what rates for above-threshold claims are held and describe same.

The response to question 1 applies equally to below and above threshold claims.

4. Are rates for incidents where a recovery against a Third Party (driver, fleet or insurer) is identified in any way subsidized or reduced by the lump-sum payment BBMM receives?

a. If yes, what is that subsidy / reduction, how is this calculated and applied.

Third Party Claims are covered in part by the Lump Sum Duties. Balfour Beatty Mott MacDonald (BBMM) receive a contribution towards elements of its running cost through the Lump Sum. The value of the Lump Sum was tendered as part of BBMM bid for Area 10 based on a number of assumptions including the number of third party claims with an unknown culprit.

5. Are rates for Third Part or culprit -unidentified incidents in any way subsidised / reduced by the lump-sum payment BBMM receives?

a. If yes, what is the subsidy / reduction, how is this calculated and applied.

The Lump Sum, as tendered by BBMM during the procurement process, includes an assessment for incidents where a culprit is not identified. A subsidy/reduction is not applied.

6. Is any aspect of emergency incident attendance or repair covered by the lump-sum payment and if so?

a. what aspects

An element of emergency incident attendance and repair is covered by the Lump Sum in respect of incidents caused by unknown culprits.


Dear Highways England Company Limited,

Please pass this on to the person who conducts Freedom of Information reviews.

I am writing to request an internal review of Highways England Company Limited’s handling of my FOI request ‘The Schedule of Damage to Crown Property Rates – Area 10’.

You have stated:

DCP (‘damage to Crown property’) Rates – the ASC contract does not contain a schedule that is used for DCP rates. Highways England does not hold information in the form of a set of rates that is used for third party claims.

The recent Information Commissioner’s Office decision supports our decision to respond under section 1 FOIA that this information is not held.

The recent ICO Decision is subject to appeal. Your stance, with regard to Area 10 is contradicted by your contractor.

I am seeking the schedule of rates used by BBMM to charge Highways England above threshold.

I understand, with larger repairs (over £10,000) Highways England claims against the tortfeasor (an individual who commits a wrongful act) and claims the repair cost calculated by reference to rates agreed with BBMM for works over £10,000. Those rates are not the CECA Dayworks rates.

It is the £10,000+ rates, the negotiated prescribed rates, I wish to be provided, the rates agreed with BBMM (by Highways England) I am seeking. These have been withheld.

There is schedule of Defined Costs if it is not within the contract, it is elsewhere and it is this I ask to be provided.

You have yet to advise how, in the absence of a schedule, rates are agreed to be charged, how consistent figures are apportioned over a period with no suggestion these vary from incident to incident save that some repairs take longer than others and use greater resources. This does not affect the charge (hourly) rate apportioned to the asset.

The definition of ‘defined cost’ is an irrelevance. .

How is each incident is treated on its own merits in line with the relevant contract; I have asked about rates in Area 10. How is a rate calculated and applied?

The term ‘DCP rates’ is all encompassing and specific to ‘damage to Crown property’ where claims are made against Third Parties. The term has been used consistently.

On the one hand you refer to the Tribunal at which your employee, Mr Carney gave evidence, on the other you appear not to know who this was or what was said.

The tribunal was talking about the TENDER documents from the various subcontractors. The contracts themselves were not within the undisclosed materials the Tribunal was looking at. The Tribunal accepted that TENDER documents of ASC Rates are commercially sensitive. We all agree that. The contract itself, which contains rates set out in the pricing schedule, has NOT been determined by the First Tier Tribunal to be commercially sensitive. It was not before them.

I agree, the DCP Rates, ‘costs included in the cost breakdown document or invoice to the insurance company are not commercially sensitive’. However, whilst they are obviously disclosed on a case by case basis they are taken from a schedule hence they are consistent. To be clear, they are rates charged consistently to Highways England; my interest is above-threshold matters, those presented to Highway England.

Regarding ‘3’, I asked please advise what rates for above-threshold claims are held and describe same. You replied:

The response to question 1 applies equally to below and above threshold claims.

I have not asked for rates in respect of below threshold matters. I cite the above statement as a further example Highways England has taken a blanket approach to my requests about rates. That it matters not what I ask, if there is reference to rates, the concerted response is to say ‘do not exist’, ‘not held’ and to supply hackneyed distractions in the form of Tribunal references and definitions.

Apparently you received 175 requests & review between 2013 and 2018 for rate related information. No one was told ‘do not exist’ until post-11/2018 when Mr Carney stated ‘DCP Rates are not commercially sensitive’.

Please provide me all the information you were supplied in respect of this response; that question 1 applies to below threshold claims. It does not.

With regard to the lump-sum subsidy, I note this relates to third party claims with an UNKNOWN or UNIDENTIFIED culprit:

a) There is no relationship between above threshold (£10,000) DCP charges and the lumpsum payment.

b) These are not in part subsidised by the lump sum paid under the agreement.

c) the rates charged by BBMM to Highways England are not discounted (or subsidised) as a consequence of that larger agreement i.e. works being done within a substantial commercial arrangement.

That is to say, they are not artificial but stand alone as representing the price of repair. This clarification is appreciated

A full history of my FOI request and all correspondence is available on the Internet at this address: https://www.whatdotheyknow.com/request/t…


More about Area 10 can be found here