175 FoIA Requests & Reviews* between 2013 & 07/2018 for information, refused for being commercially sensitive and no mention of the rates sought being non-existent (mythical) until … Highways England themselves acknowledge to a Tribunal … the rates are not commercially sensitive.
A problem facing Highways England now is not simply what they have responded to the 175 requests & reviews (without ever suggesting the rates did not exist) they also have to contend with what their contractors have told us, Third Parties and the Courts. In addition to the 175 requests / reviews, their own ‘Green Claims’ staff have declined to provide the rates when asked to substantiate claims, citing ‘commercial sensitivity’.
A further embarrassment is that, by claiming they have no such rates, they have been unable to check bills presented to them for years – £millions in DCP works have been paid without, it appears, any means by which to confirm the charges presented were accurate i.e. other than rubber-stamp for payment, hat could be done?
There can be no doubt the previous DN (decision notice) referred to in the ‘INFORMATION COMMISSIONER’S BRIEF RESPONSE TO THE NOTICE OF APPEAL AND JOINDER REQUEST’ (Submissions by ICO 29042019) relates to a request for DCP Rates. Extracts from the decision of 23/04/2018 Reference: FS50684021 are as follows:
32. The complainant states that the contracts are ‘un-policed’ and it appears
that third parties, those that damage barriers, are overcharged. He
states that the process appears “systematic; an institutionalised
misrepresentation and exaggeration.” He confirms that he has dealt with
damage to Crown Property claims since late 2015 and his enquiries have
evidenced non-compliance well in excess of the maximum allowed under
at least one contract. He states that his experience of dealing with so
many claims has evidenced that third parties are over-charged.
33. The complainant believes it is in the public interest to disclose the rates
used by the contractors so that these can be compared and scrutinised
against the claims and invoices charged. Without this information there
is no way of comparing the charges incurred and validating the relevant
components with the contractors’ schedule of rates. He believes this
conduct invites abuse by a contractor.
34. The complainant goes on to say that a ‘third party’ could be anyone
“unfortunate” enough to strike Crown Property, such as a barrier. He
states that there are 1000’s of such cases each year. Some are over
threshold (£10,000 or more) and the rates (defined cost and uplift) are
disclosed and fees are disclosed by HE in the bills presented to drivers,
fleets and/or insurers. He questions why this information should be kept
from third parties on sub-threshold matters (below £10,000) other than
to prevent comparison and clearly show non-compliance with the
contract. He commented that if contracted rates were secret, or the
intention was to keep them secret, HE could have agreed a set of rates
for ‘above threshold’ (their) repairs and another set for below (third
party) invoicing. He states, but, this could have caused similar questions
to be raised; why are there two sets of rates for identical works?
35. He states that he has evidence of this conduct (two rates for the same
work) of contractor(s) overcharging and believes HE’s audits have either
failed to identify the non-compliance or turned a blind eye to it. He
believes at least one contractor is profiteering aided by HE itself.
36. The complainant also makes reference to much of the withheld
information already being available via the claims that are processed
and the fees and rates that are discharged as a result of this process.
37. The Commissioner notes that the complainant has concerns that
different rates of charges may be being used for sub-threshold claims
and she accepts she cannot dismiss such a claim when considering
where the balance of the public interest lies. However the Commissioner
is of the opinion that it is not her role to determine whether this is
indeed taking place and if it is, whether this is due to improper
practices, non-compliance with the terms and conditions of the contract,
constitutes fraud, evidences that a contractor(s) is/are profiteering
inappropriately from their public sector contract or due to another
reason. She has also received no firm and definitive evidence of any
actual wrong-doing during this investigation.
38. The Commissioner has also been provided with no evidence to suggest
that the exact same information to the withheld information being
considered here (which is a detailed schedule of rates for each
contractor) is publicly available. She notes that some rates and fees will
be disclosed as part of the billing/invoice and claims process. However,
the Commissioner would regard such piece-meal disclosure as to be on a
‘need to know’ basis for specific purposes rather than public disclosure
under the FOIA to the world at large for anyone to see with very limited
restrictions of its use.
The full text can be read here – Reference: FS50684021
By way of further example that the rates exist:
02/03/2017 a request was made to Highways England ICO Reference: FS50684952:
“How do the claims costs and overheads differ by contractor, date and area in the United Kingdom”
The response includes the following statements:
Highways England has confirmed to the complainant that it holds
information falling within the scope of his request.
Highways England are recorded as responding to the ICO:
“We cannot disclose the actual rates, as this is
commercially sensitive information. We can confirm, however, that fee
percentages do vary, to a degree, with each of our service providers on
each of our contracts. To explain further, the nature of Highways
England’s contracts for service providers is such that these are let at a
variety of points in time and so the contracts made are not identical
across all providers and areas at any given point in time, which could
affect the cost base and approach of the provider.”
*fee percentages relate to the uplift added to base rates i.e. DCP Rates or ‘defined costs’. This charging methodology was contractually agreed between Kier and Highway England (Area 9 ASC) and results in a Third party being charged NO MORE THAN:
defined cost (£) + Overhead (%) = Maximum (£)
Kier have not complied with the above process since day-one of the contract and Highways England have been made aware of this.
The above reference to ‘fee percentages’ reinforces the request being for DCP Rates and the response being specific to such fees.
The full response can be fund here: 171211 FS50684952 Decision Notice rates not commercially sensitive