Highways England’s & Contractor U-Turns

ASC Rates determine whether a claim is above or below the threshold; yes & no!

‘In Asset Support Contract (ASC) the tendered contract rates are contained in the Pricing Schedule and used to set Target Prices for schemes and estimate third party claims work to establish if they are above or below the threshold.’ 

04/02/2020 – Jonathan Drysdale, Freedom of Information Officer @ Highways England

‘The schedules of rates specified in the ASCs ARE NOT used to work out the Defined Cost, or for assessing the reasonable cost of repair in respect of third party claims, whether above or below £10,000.’

02/08/2019 FoIA response from Highways England

The issue is the subject of an FoIA request – read more here


The NSoRC is not a Pilot … yes it is … 

regarding the NSoRC, Tim Reardon of Highways England was clear:

“this will be the position and …in a sense it’s not a trial, it’s just phase 1 of … it is the rollout, you know? I mean, I mean we, we are, obviously, you know, we’re very pleased to engage with you on, you know, understanding these rates and you know, seeing if there are any, are any gremlins in here …
 you know, and, and we’ll gather this all together, whatever comments we get from you, from anybody, from any other loss adjuster or insurance company, and we, with a view to in three months’ time making any alterations we need to make but, you know… to the rates we, that we, we think we need to make, but basically err, you know, err but basically this is it”

2020:

‘… the National Schedule of Repair Costs (NSoRC) was only trialled as a pilot in limited areas, and was not adopted nationally. In areas where NSoRC was not trialled, there were no changes and we generally continued to pursue clims on the defined costs (in effect actual costs) of carrying out the repairs.

Linked to a FoIA – read more here. This also links to:


 The NSoRC looked at Completed Claims 

06/2019 Martyn Gannicott of Highways England explained that when compiling the National Schedule of rates the Authority:

  • “looked at some of the claims history and the claims that have been settled …”
  • “did quite a bit of analysis on, we took a sample of claims…  I think it was around 100 claims …”
  • “So, these were completed claims, if you like, so, which we were able to track through their entire journey,”

2020, having attempted to obtain the above information, the claim data, the Authority responded:

The rates that were used to develop the National Schedule were the tendered contract rates which are withheld under Section 43 commercial interests, this is in line with previous responses on tendered contract rates

Not according to the gentleman behind the process!  Why is the Authority again withholding rate-related information, misrepresenting the facts? (FoIA here)


‘we will have a schedule of Rates published by Kier’

04/01/2019 in conversation with Jim O’Sullivan (Highways England CEO), we were informed: 

‘following the judgment, if you like, I mean it… You know, from the Complaints Commissioner, I’m sort of inclined to try and get this resolved going forward …

… with this judgment having been received I’m inclined to… as I say, the two things – one is the judgment and the second is the two notes that you’ve sent me in particular, and therefore I’m trying to raise the debate to a level where I can do something about it

You know, you know the very minimum that is going to happen as a result of this call, or certainly as a result of the judgment s that we will have a schedule of rates published by Kier, so that this thing is transparent.

It was evident:

  • a schedule of rates could be produced, would be produced
  • it was the ‘minimum’ that was to occur
  • there was a need for transparency
  • a schedule was required, considered necessary, reasonable

But …

  • the schedule was never provided and no explanation presented.  This remains correct to this date 23/04/2020

The Authority threw more money at obstructing the schedule of rates sought.  They appealed involving Government Legal Department (GLD) and Counsel.  Their appeal failed.  They appealed to the Upper Tribunal again involving GLD and Counsel.  Every ground was rejected and the contractor instructed to ‘comply with the law’. 


Highways England’s Claims Handling Manual

2015 – the document exists but is commercially sensitive (Tim Reardon – Highways England) General Counsel)

then:

  • 2020 – no such thing, the information is not held (Jonathan Drysdale @ Highways England)

Seemingly, the Authority has no manual with which to train ‘Green Claims’ staff or from which staff can obtain guidance.  

The ICO has upheld this – FS50908734 – signed DN – despite the Authority previously informing us:

‘the manual was It was replaced by an internal Green Claims handbook. However, I regret to inform you of my decision not to release a copy of the handbook to you’.


07/01/2016 Audit of Kier Highways

2016 – The audit focused on – ‘A sample audit of Green Claims including sub and over threshold claims’ (source: Highways England)

then:

  • 2020 – ‘Our client has confirmed that the audit you refer to did not look at TR430 claims’ i.e. did not include over-threshold claims (source Knights Plc., from Highways England). X07B860

2019 the Schedule of DCP Rates

2013 to 2019 – the price list was ‘held but commercially sensitive’ (175 responses to FoIA requests/reviews)

but …

  • 2019 – there is no such thing, no ASC (contract) since 2012 has a price list for repairs, this was ‘overlooked’

National Audit Office

there is a schedule of defined costs, a price list – Highways England said so (source: Matt Wise @ NAO)

then

  • The Authority’s Sharon McCarthy made a mistake or was misunderstood when questioned by the NAO; there is no schedule.

The complaint/questions related to DCP rates but the NAO seem to have asked an entirely different set of questions or Ms Mccarthy misheard?  Apparently, there is no schedule of DCP rates.  Or possibly Matt wise asked about DCP Rates and Ms Mccarthy answered accurately? Quite astounding that Ms Mccarthy party to the investigation of Kier and subject to an ongoing complaint about misrepresentation should be a party to such a contradiction.


Charges are Adjusted Annually

It appears illogical, contradictory for the Highways England to state that prices charged for DCP works are adjusted annually given no schedule of rates exists to be adjusted!  However, in 2016, a FoIA response stated:

in accordance with the contracts, the prices are adjusted by the contract price adjustment for inflation on an annual basis. 
Full response here:  FOI 735547 inflation increase.

2018, in an attempt to dismiss a request for the prices, the Authority collated the rate-related requests and reviews they had received – 118 from others, 57 from the author.    But their attempt failed and they were faced with disclosing the information … they changed their tune:

  • there is no such thing, they do not exist. 

For more information click here


Pain / Gain share

2016 – there is a pain gain share.  If contractors recover over a threshold their monthly lump-sum payment is reduced – but none has ever archived this

then:

  • 2018 – there is no pain/gain share

Are Highways England keeping the submissions secret because they evidence their understanding of overstatement and fraud?  Read more here.


Lumpsum Payment

The lump-sum payment made to contractors does NOT contribute toward incidents where the culprit is identified (source Highways England 2016 & 2019)

then:

  • SOURCE – HH Godsmark Judgement 15/02/2018:
  • ‘rates WERE in part subsidised by the lump sum’ (para 31)
  • ‘I also accept Mr Ellis’s evidence that the £10,000 + repair rates are subsidised in part by the lump sum payment’ (para. 32)
  • I have already accepted that they are artificial in that they are partly subsidised by the lump sum (para.; 33) 
  • rates agreed between BBMM and Highways England for more extensive (over £10,000) repairs is subject to the criticism that those rates are subsidised by the lump sum element of the contract between Highways England and BBMM (para. 62)

The Judge did, however, note that Mr Ellis’ verbal evidence to the Court ‘appears to jar with paragraph 21 of his witness statement’.


Annex 19 Reports

2016 – contractors submit claims information to Highway England each month.

then: 

  • 2019 – contractors do not submit information to Highways England

These Annex 19 reports are to convey claims cost information to the Authority.  Highways England state they do not receive the data, unless they ask’, but the contract says the contractor ‘must’ supply the information.  Is the contract being complied with?  Read more here


AIW’s & Multipliers

they do not work shifts and are paid 1.5x after 5pm weekdays, 2x of a weekend

then: 

  • they do work shifts, are not paid the uplifts (multipliers) and even overtime is at flat-rate

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