On 22/04/2016, we posted ‘The Tail Wags the Dog’, explaining how obtaining information from some of Highways England’s contractors can prove difficult if not impossible. This followed our concerns a contractor had made up a charging process to exaggerate repair claims, that they were not accountable and the oversight processes in place were ineffective or not engaged. On 15/01/2018, in response to the Carillion debacle The Huffington Post reported:
The Commons Public Administration and Constitutional Affairs Committee (PACAC) announced a probe into the way the public sector makes decisions about ‘outsourcing’ of key services. Committee chairman Bernard Jenkin apparently said that the failed construction giant (Carillion) which went into liquidation on Monday, showed that “we need to ask if the rules on oversight and accountability of public services need to change”.
We have not seen the ‘rules’ but are aware some processes designed to ensure contract compliance are ineffective and the concerns raised, ignored. Highways England, for whom Carillion are a contractor, appear unaware of their contractors conduct, procedures and costs.
Whilst initially informed Grant Thornton would undertake the enquiry, Kier Highways are being audited by KPMG who, it transpires were the Carillion auditor; KPMG and are now facing scrutiny for approving books months before collapse. Whilst the KPMG audit of Kier Highways is ongoing, Highways England stated the claims were on hold writing 20/10/2017:
‘Any claims that are being processed and where costs would be incurred by Highways England to put them on hold will proceed. All new claims or claims where proceedings haven’t been issued are on hold.’
Yet this week we have been forced to write to Highways England asking why proceedings have been issued on 2 such claims; do they have any control over their lawyers? Are Highways England aware multiple claims are now before Courts because the pricing methodologies employed by their contractors when charging Third Parties (drivers, fleets and insurers) just do not stack up, that processes engaged are contrary to contracts, facts misrepresented and information withheld?
Additionally, two members of Highway England staff have written that a contractor has been requested to provide a response to us after the contractor’s own employee could not elicit a reply from their management. No response after weeks of waiting.
A contractor had previously put Highways England in their place (2013) – Area 10 road maintenance contractor to ‘do minimum’.
A Public Authority is subject to the Freedom of Information Act, a contractor for the Authority is not, unless this obligation is written into the contract and all too often it is not. The FoIA is diluted. It appears there has long been an intention to obscure and obstruct access to information. When the public do raise questions, attempt their own enquiry or ‘oversight’ by engaging the Act, they are all too often told the data is ‘commercially sensitive’:
- When Amey abandoned Areas 6 & 8 in early 2017, Highways England ‘gifted’ them to Kier Highways. An FoIA request saw little information provided – click here to view the FoIA request and response.
- In August 2017, via the FoiA, Highways England was asked about their ‘water preferred policy’. They declined to answer citing the ‘commercially sensitive’ exemption. Whilst the Information Commissioner’s Office (ICO) decided against Highways England, finding that the exemption was not engaged, directing provision of the information, Highways England are challenging the outcome. The ICO’s decision can be read by clicking here.
But of particular interest to us is another FoIA request that has seen Highways England refuse a request, again citing ‘commercially sensitive’ yet:
- the ICO again found against Highways England (ICO ref fs50684952).
- Highways England appear to have been obstructed and frustrated by their own contractor:
The decision, which can be read in full here – FS50684952 Decision Notice or on this website (here) – follows a request “How do the claims costs and overheads differ by contractor, date and area in the United Kingdom initially presented using the WhatDoTheyKnow web site. The request is here – WDTK. Highways England responded citing ‘commercially sensitive’, sections 43(1) and (2) FOIA, to the withheld information. At paragraph 13 in the ICO’s decision appears this information:
Highways England said that the information requested is methodology considered by Keir Highways to be a Trade Secret. It said that this methodology is owned by Kier and is used in winning bids. It said that it asked Kier to provide a brief summary of their arguments which it would forward to the ICO. Despite asking for these third party submissions a number of times, Highways England has failed to forward these to the ICO.
It is not known whether Kier failed to provide the summary requested by their client, Highways England, or if a summary was provided and not forwarded. However, it is apparent this conduct was less than helpful; the ICO ‘does not consider that Highways England has sufficiently explained why the withheld information is a trade secret. Highways England’s brief submission to the Commissioner merely refers to the public interest arguments it gave to the complainant, and doesn’t really touch on why it considers the exemption to be engaged’ (para. 22). The ICO referred to the previous case (FS50666011); the Commissioner is left with the impression that Highways England has sought to withhold the information on an entirely general basis with no regard for the details of the information or the evidential threshold required to demonstrate that 43(1) and/or 43(2) FOIA are engaged. It does not appear Highways England have sought to challenge the decision.
To view appeals against the Information Commissioner, click here
January 2018, saw the demise of Carillion .
Experts demanded an overhaul of the “broken” procurement process and improved security for the supply chain as the UK’s second largest construction company announced it was in liquidation yesterday morning, after weekend crunch talks with lenders broke down without a rescue deal. The Federation of Small Businesses chairman Mike Cherry is reported to have said: “When the dust settles on this sorry saga, there is also a wider lesson to learn about the concentration of public contracts in the hands of a small number of very big businesses”- New Civil Engineer.