If Defined Costs are Mythical what was Reviewed?

769,306 / 769306

25/02/2019 – to Highways England FoIA request:

I wish to be provided the information below. I have today spoken with the ICO in relation to the recent information ‘not held’ response from Highways England (HE) and was advised to write to you in the first instance to seek an explanation.

In Ms Jones (HE) statement of 07/2018 (attached), it is said that, since 2013, I have made 57 requests or reviews for information in relation to costs:

I believe that the majority of Mr Swift’s requests relate to a specific issue or related issues, namely the rates that contractors charge third parties for the costs of repairing damage to highways resulting from accidents/negligence under Asset Support Contracts (sometimes referred to as “ASCs” — these are contracts by which HE procures services from subcontractors in relation to the maintenance and improvements of its road network

Additionally, ‘Associated Requesters’ are said to have made about 100 more requests for information or internal review since November 2013.

The attached statement was presented a Tribunal in respect of a 25/07/2017 FoIA request I made for ‘Highways England contractors Defined Costs’ FOS FS50703446 (EA/2018/0088; Swift v (1) ICO (2) Highways England) when I wrote:

I ask to be provided from 01/07/2014 in respect of Areas with Appendix A to Annex 23 and damage to Crown Property:

The Defined costs, those referred to in Appendix A to Annex 23 of the contract
The Third party claims overhead
all information that relates to how the above are to be applied to claims
confirmation that the charge to Highways England comprises:
• the defined cost (at ’12 above)
• a fee uplift

You cited ‘vexatious’ when declining the request. Previously, ‘commercially sensitive’ has been cited. In 11/2018, Mr Carney of HE stated these rates were not commercially sensitive. Subsequently, HE have written the rates do not exist. On 07/02/2019, HE wrote:

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.

1. I am seeking your explanation, following 170+ requests / reviews, for HE not disclosing to me (and others referred to in the attached) ‘the information is not held’ or ‘does not exist’ during the 5 year period (2013 to 2018). This appears to be a simple response (if correct) and there would be little point is stating otherwise.

Some of the 170+ requests have been subject to Internal reviews and Public Interest Tests (PIT)

2. What information have those associated with PIT’s reviewed, considered and noted? I wish to be provided all information.

Contractors have claimed the information is commercially sensitive

3. To what information have the contractors referred and what have they recorded?

The above request was presented to the ICO

4. What information has the ICO been provided about the existence, or otherwise, of the rates

The matter was presented to a Tribunal

5. What information has the Tribunal been provided about the existence of the rates

HE have engaged Government Legal Department (GLD) in respect of the above matter.

6. What information have GLD been provided about the existence of the rates

GLD have engaged Counsel

7. What information has Counsel been provided about the existence of the rates

With regard to the 157 requests / reviews, less those I have made, please:

8. Advise how many requestors were informed rates do not exist and provide copies of the notifications.

I am seeking all information you hold mindful you have catalogued the requests i.e. they have been identified.


13/04/2019 – Response from Highways England:

Thank you for your request dated 25 February 2019, please accept our apologies for the delay in responding. From our preliminary assessment, it is clear that we will not be able to answer your request without further clarification. Section 12 FOIA makes provision for public authorities to refuse requests for information where the cost of dealing with them would exceed the appropriate limit, which for is set at £450. In order to provide you with the information on the scale that you have requested would require a reduction in the information requested either by reference to specific identified matters, a reduction in scope of the request by period or reduction in the number of different requests for information. We estimate that it will take us in excess of the applicable time limit to determine the appropriate material and locate, retrieve and extract the information in reference to your request. Therefore, your request will not be processed further.

You may wish to refine your request by narrowing its scope by being more specific about what information you particularly wish to obtain, including any dates or period of time relevant to the information required.  Whilst we cannot address your request as set out we think it is important try to bring closure to this line of enquiry by addressing the alleged inconsistencies in our responses and confirm that we do not hold a schedule of rates for third party claims.

The rates contained in each contract, in the Pricing Schedule, are considered commercially sensitive as confirmed by the Information Commissioner’s Office (ICO) and the First Tier Tribunal (EA/2018/0104). The Asset Support Contracts are large complex contracts with numerous schedules, the model contract is publicly available online
(https://webarchive.nationalarchives.gov.uk/20140603121903/http://assets.highways.go v.uk/about-us/procurement-asset-supportcontract/ASC_Model_Conditions_of_Contract.pdf). Please note that the various ASCs whilst based on the model documents may differ in some respects as they have been individually negotiated and varied over time.

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 last 2 paragraphs are hackneyed responses that purport to explain ‘confusion’ but are distractions.


15/04/2019 to Highways England:
To: TPC HAIL <tpchail@highwaysengland.co.uk>; ha_info@highways.gsi.gov.uk
Subject: RE: CRS 769,306 – P Swift – Defined Costs

Dear Sir / Madam

I have waited patiently for a response. You delay and state you need clarification beyond the permitted time frame.

You then set about addressing a request I have not presented of obfuscation and avoidance. I have not asked for ‘a schedule of DCP Rates’; this issue is with the ICO. I understand the difference between ASC and DCP Rates. I have never asked for ASC rates.

1. What is unclear about my request
2. What clarification do you require

You have catalogued 175 requests. I am asking to be provided the request, the response and the PIT information. To narrow the request you can dispense with my 57 requests, I am working through those. It is the remaining 118, conveyed to a Tribunal I am seeking information about and which can be found here: http://www.englandhighways.co.uk/118-foi-requests-for-mythical-rates/

I anticipate the information will all be in one place as Ms Jones has evidenced the data and it is in a spreadsheet.

‘The Excel workbook at pages 342-354 lists requests made by Mr Swift and by the Associated Requesters. In total, Mr Swift and the Associated Requesters have made 175 requests for information or internal review since November 2013 (see spreadsheet tabbed “Stats” at page 342 — as mentioned above, 57 of these were made by Mr Swift himself). The spreadsheets also show that from 2016 onwards, HE has received between 2 and 11 requests for information or internal review every month from Mr Swift and the Associated Requesters (see page 343, tabbed “Frequency Stats”)’

The information will be less than at first appears at it is evident not all matters were the subject of a review.

It will be noted that whilst the Tribunal provided these numbers to demonstrate requests associated with ‘rates’ some clearly do not and should be redacted.