FoIA Request for Area 9 & 10 DCP Rates

Since 11/2018, Highways England (HE) claim they do not hold the DCP (Damage to Crown Property)rates Kier Highways Ltd (‘Kier’) use to bill the Public Authority.

The Authority managed to hide the contractually agreed process (Appendix A to Annex 23) from those who needed it since 07/2014.  This sets out that a Third Party is to be charged ‘no more than’:

defined cost (DCP Rates) + uplift percentage = maximum (£)

But, 01/2017, the above equation was inadvertently(?) tagged onto the end of a Court exhibit.  The process was noted and it became evident Kier Highways had blatantly failed to comply with the contract.  Additionally, Highways England had failed to identify this. 1,000’s of grossly exaggerated invoices have been issued and paid by unsuspecting Third Parties (drivers, fleets, hauliers and insurers).

Between 2013 and 07/2018, Highway England state they have handled 175 Freedom of Information requests or reviews (118 of these from others) for rate-related information i.e. for ‘defined costs’ otherwise known as DCP Rates, base rates or notional rates.  The Authority refused to disclose the rates citing ‘commercial sensitivity’ to block release.  Persistent enquirers had their requests deemed ‘vexatious’.  Maters progressed to the ICO, Government Legal Department, Counsel and Tribunals.

11/2018 At  a Tribunal, Patrick Carney of Highways England stated DCP  rates are NOT commercially sensitive.  This put pay to years of Highways England stating the opposite (to include MrCarney!)  scuppering this frequently cited exemption  (175 requests / reviews).


11/12/2018 a request was made for DCP Rates for Areas 9 and 10

Damage to Crown Property a.k.a. DCP Rates for Areas 9 and 10 from inception of the current contact to the present date, being the schedule of costs referred to at paragraph 14 of the attached witness statement, confirmed under Oath by Mr Carney at the First Tier Tribunal Information Rights appeal hearing on 21 November 2018 as not being commercially sensitive.

This request replaces any outstanding earlier requests relating to costs now that the precise nature of available information has been clarified by Mr Carney. I am seeking to avoid any ambiguity in what I am seeking, by clarifying my request and using exact nomenclature adopted by yourselves.

There then followed a ‘DCP Rates are not held’ response.  Years of saying ‘these rates are sensitive’, 175 requests and reviews for the information and then … they do not exist therefore, ‘not held‘. The FoIA request and others located, together with responses are below:


10/01/2019 – From Neil Cook @ highways England cc: Kevin Mullaney @ highways England
Subject: FoIA request – DCP Rates for Areas 9 and 10 CRS number: 768,020 (768020)

Please find the attached response to the above:

DCP RATES FOR AREAS 9 AND 10

Each incident is treated on its own merits in line with the relevant contract and costs are built up from Defined Costs using the Schedule of Cost Components plus fees and third party overheads where appropriate. Defined costs for individual DCP work are provided as part of the claims cost pack.

As each incident is treated on its own merits Highways England do not use or possess a Schedule of Damage to Crown Property Rates in Asset Support Contracts.

Kevin Mullaney, Head of Green Claims, The Cube, Birmingham B11RN


11/01/2019 – Request an ‘Internal Review’

Dear Sirs

I am seeking an internal review.  You have responded to my request:

  1. Each incident is treated on its own merits in line with the relevant contract and costs are built up from Defined Costs using the Schedule of Cost Components plus fees and third party overheads where appropriate.
  2. Defined costs for individual DCP work are provided as part of the claims cost pack.
  3. As each incident is treated on its own merits Highways England do not use or possess a Schedule of Damage to Crown Property Rates in Asset Support Contracts.

There appears to be a contradiction.  At ‘a’ above you refer to a ‘schedule of Cost Components’ at ‘c’ you state you do not use or possess a schedule of rates.

I am seeking the schedule of cost components otherwise known as ‘DCP Rates’, ‘Defined Costs’, ‘base rates’; the schedule used to build up the invoice (at ‘a’ above).  This is also referred to as  Pricing Schedule Appendix A (see below).

This is the same schedule used to bill above and below threshold.  It is a schedule that you possess as part of the contract and / or to ensure Green claims are billed correctly, a schedule to which Mr Carney is privy. It is a schedule you can seek from your contractor if you are unable to locate a copy.


08/02/2019 Response from HE:

Please find attached the internal review reference: 768,416 into your Freedom of Information Request reference: 768,020

Yours sincerely
Sian Jones| Lead Information Rights Officer | Information & Technology
Highways England | Piccadilly Gate | Store Street | Manchester | M1 2WD

07/02/2019 – Re: Internal Review Response

Further to your email dated 11 January 2019 regarding the response to your Freedom of Information, it has been passed to me to conduct an internal review of the way in which your initial request (ref 768,020) was handled.

In your email dated 11 January 2019 you asked:

I am seeking an internal review. You have responded to my request:

a) Each incident is treated on its own merits in line with the relevant contract and costs are built up from Defined Costs using the Schedule of Cost Components plus fees and third party overheads where appropriate.

b) Defined costs for individual DCP work are provided as part of the claims cost pack.

c) As each incident is treated on its own merits Highways England do not use or possess a Schedule of Damage to Crown Property Rates in Asset Support Contracts.

There appears to be a contradiction. At ‘a’ above you refer to a ‘schedule of Cost Components’ at ‘c’ you state you do not use or possess a schedule of rates.

I am seeking the schedule of cost components otherwise known as ‘DCP Rates’, ‘Defined Costs’, ‘base rates’; the schedule used to build up the invoice (at ‘a’ above). This is also referred to as Pricing Schedule Appendix A (see below).

This is the same schedule used to bill above and below threshold. It is a schedule that you possess as part of the contract and / or to ensure Green claims are billed correctly, a schedule to which Mr Carney is privy. It is a schedule you can seek from your contractor if you are unable to locate a copy.

I have discussed this matter with colleagues who have provided the following response:
The model Conditions of Contract for Highways England Asset Support Contracts (ASC) is publically available online (https://webarchive.nationalarchives.gov.uk/20140603121903/http://assets.highways.gov.uk/about-us/procurement-asset-support-contract/ASC_Model_Conditions_of_Contract.pdf). Please note that the various ASCs whilst based on the model documents may differ in some respects. For example, as previously advised, some ASC contracts have an additional appendix to Annex 23.

The term ‘Defined Cost’ refers to a definition in the contract which can be found in clause 11 at point (27). The contract does not contain a schedule of Defined Costs. The Defined Cost is calculated in accordance with the definition.

In the Conditions of Contract Schedule 1 contains the Schedule of Cost Components, which can be found at page 101 (https://webarchive.nationalarchives.gov.uk/20140603121903/http://assets.highways.gov.uk/about-us/procurement-asset-support-contract/ASC_Model_Conditions_of_Contract.pdf). The schedule does not contain any figures or rates but sets out the heads of costs.

The Pricing Schedule, including Appendices A, B and C, includes the rates tendered by the provider. We have previously advised that these rates are exempt from disclosure as the conditions under s43 of the Freedom of Information Act 2000 are met. This was recently upheld by the First tier Tribunal in your appeal against the Information Commissioners decision reference EA/2018/0104.

The reason the Pricing Schedule is considered commercially sensitive is set out in the following documents and therefore not repeated here:

• Our letter dated 17 March 2017 advising that the information was being withheld under section 43 FOIA as disclosure would, or would be likely to, prejudice the commercial interests of suppliers and of HE;
• The Information Commissioner’s Decision Notice FS50684021 dated 23 April 2018;
• Response of the 2nd Respondent in appeal EA/2018/0104 dated 6 August 2018, supporting documentation;
• Patrick Carney’s second statement dated 28 August 2018; and
• First Tier Tribunal decision in appeal EA/2018/0104 dated 2 December 2018.

Paragraph 52 of the judgment sets out the tribunal conclusion that “… the withheld information does not contain specific DCP rates. We accept Mr Carney’s evidence that the withheld information sets out target rates for the main contract as part of the tendering process for ASC Area 10, and is very different from DCP rates which are actual costs charged in emergency situations”. The Tribunal confirms that [while] “there may be some overlap in the types of items covered, the withheld information would not easily allow DCP rates to be calculated, and would not give an accurate picture. In particular, it would not show clearly how DCP rates charged to third parties are calculated, or whether different rates are charged to third parties directly by contractors”

The Tribunal summarised at paragraph 53 that “Put simply, the withheld information simply does not show what the appellant wants to know about DCP rates”.

The process for administering Third Party Claims is covered in Annex 23 Third Party Claims (https://webarchive.nationalarchives.gov.uk/20140603121733/http://assets.highways.gov.uk/about-us/procurement-asset-support-contract/ASC_Model_S_I_Annex_23_Third_Party_Claims.pdf) For the avoidance of doubt the contract does not contain a schedule of rates for use in conjunction with Annex 23.

The use of the term DCP Rates appears to have unintentionally caused additional confusion. For the purposes of dealing with the material raised in Tribunal matter EA/2018/0104 Patrick Carney in his statement used the term ‘DCP Rates’. At paragraphs 7 and 8 of his statement he clearly sets out:

7 The Appellant has produced, as attachments to the Appellant’s Email, documents setting out (he says) Damage to Crown Property (“DCP”) Call Out Rates (the “DCP Rates”) charged by two of the Bidders (AOne+ and Kier).

8 In what follows, references to DCP Rates are references only to the materials attached to the Appellant’s Email. I make no comment in relation to the date, provenance, currency, accuracy or veracity of those attachments, all of which are matters outside of my own knowledge.

Any references to DCP Rates are merely an effort by Highways England to deal with the rates provided to the Tribunal as part of your evidence. The ASC contracts do not contain DCP Rates or indeed any schedule of rates that is used to calculate the Defined Cost or the cost of repair for DCP claims.

The above should now provide additional clarity and confirms that there is no contradiction:
a. The Schedule of Cost Components does not contain a schedule of rates.
b. A schedule of DCP rates is not held and has never formed part of the contract.
c. The contract does not contain a schedule used to build up the invoice or containing base rates.
d. Whilst the Pricing Schedule contains schedules of rates, the rates are tendered rates and not applicable for the purposes of Annex 23 or DCP. As stated above the tendered rates are commercially sensitive.

Sian Jones, Lead Information Rights Officer


15/02/2019 – to the ICO


20/02/2019 – ICO request correspondence relating to this matter and advise their reference:

Case Reference Number FS50821725


04/04/2019 From: casework@ico.org.uk
Subject: Re: FOIA complaint about Highways England[Ref. FS50821725]

Freedom of Information Act 2000 (FOIA)
Your FOIA request to Highways England dated 11 December 2018

I write to inform you that your case has now been allocated to me to investigate. This letter will explain how I intend to do this. It will also provide you with contact details so that you can get in touch with me if you need to.

What happens now

Where possible the Information Commissioner prefers complaints to be resolved informally and we ask both parties to be open to compromise. With this in mind, I will write to the public authority and ask it to revisit your request. It may wish to reverse or amend its position. If it does, it will contact you again directly about this.

In any event, it must provide us with its full and final arguments in support of its position. Once I receive its arguments, I will consider its reply before either contacting you to discuss the matter further or preparing a decision notice. Further information is available on our website: https://ico.org.uk/media/report-a-concern/documents/1043094/how_we_deal_with_complaints_guidance_for_complainants.pdf

The request

On 11 December 2018 you requested information of the following description:

“Damage to Crown Property a.k.a. DCP Rates for Areas 9 and 10 from inception of the current contact to the present date, being the schedule of costs referred to at paragraph 14 of the attached witness statement, confirmed under Oath by Mr Carney at the First Tier Tribunal Information Rights appeal hearing on 21 November 2018 as not being commercially sensitive.

This request replaces any outstanding earlier requests relating to costs now that the precise nature of available information has been clarified by Mr Carney. I am seeking to avoid any ambiguity in what I am seeking, by clarifying my request and using exact nomenclature adopted by yourselves.”

On 10 January 2019 Highways England responded. It denied holding the requested information. You requested an internal review on 11 January 2019. Highways England sent you the outcome of its internal review on 7 February 2019. It confirmed that the Pricing Schedule is considered commercially sensitive and upheld its original position that a schedule of defined costs for Areas 9 and 10 was not held.

My investigation will look at whether Highways England is correct when it says that it does not hold the requested information.

In addition to this I would take this opportunity to confirm that your section 77 allegation in relation to this request has been passed to our investigations team for consideration. Once I have received the outcome of their investigation into your section 77 allegation I will communicate this to you separately.

The scope of the case

The focus of my investigation will be to determine whether Highways England handled your request in accordance with the FOIA. Specifically, I will look at whether Highways England is correct when it says that it does not hold the information you requested. Please contact me within the next 10 working days, that is, by 18 April 2019 if there are matters other than these that you believe should be addressed. This will help avoid any unnecessary delay in investigating your complaint. If I do not hear from you by this date, my investigation will focus only upon the matters identified above.


12/04/2019 from Highways England FoI response:

Re Area 10 ‘Defined Costs’ Highways England response 190412 CRS 769 305

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:

 

 


NOTES


But are the rates held?

Area 10 – A judge is informed there is a schedule of rates.

Evidence that they are held appears here: defined Costs – ‘Not a Mythical Beast‘?

If Highways England do not hold the schedule of rates for DCP works, how do they reconcile a contractor invoice pre-payment …. do they?  We await a response … is it really ‘Too Expensive to Reconcile Costs‘?


Associated references:

HE: 768,020 / 768020 / 768 020 / 768,416 / 768 416 / 768416 /