Sent: 25 February 2020 15:36
tim.reardon, Jim.O’Sullivan, Jim.O’Sullivan, Colin.Matthews & Alex.Bingham @ highwaysengland.co.uk
Subject: FORMAL COMPLAINT & FoIA Request – State Enabled Exaggeration & Fraud on an Industrial Scale – Kier Highways / Areas 6, 8 & 9 Rates
I refer to my emails below. Kier Highways Ltd (‘Kier’) continue to utilise a contract non-complaint process when pursuing Third Parties for the costs associated with incident attendance and reinstatement of damaged Crown property. Kier’s procedure gives rise to exaggeration* on every claim, an overview can be found here: https://www.englandhighways.co.uk/summary-of-exaggeration-and-fraud/
*“Exaggeration is fraud.” 12/11/2019 Christina Michalos Counsel to Highways England @ Tribunal hearing.
I have raised the issues of contract non-compliance, exaggeration and fraud with you on a number of occasions since 10/2015. For reasons as yet unexplained you appear unwilling or unable to address the situation.
Currently, a number of proceedings issued in the name of Highways England are ‘stayed’ by South Wales County Courts. Resolving these matters, those we are handling is straightforward; ask your contractor to act in accordance with the contract, Annex 23 and Appendix A to Annex 23:
- reprice the claims using ‘actual costs’ (defined costs) and apply the appropriate Third Party Claims Overhead (TPCO) percentage uplift.
If Highways England is unable to undertake this, please instruct your contractors to do so. However, it is apparent ‘actual costs’ are known to you, there are several references on your site at https://highwaysengland.co.uk/thirdpartyclaims/
- please provide me these ‘actual costs’, those to which you are referring.
Additionally, I again ask that you instruct your contractors to stop their current use of contract non-compliant, profiteering methodologies. To this day, Kier Highways is not acting in accordance with the contract, specifically, Appendix A to Annex 23 https://www.englandhighways.co.uk/wp-content/uploads/2017/03/Area-9-Appendix-A-to-Annex-23.pdf when pricing and Annex 23 insofar as suppling reasonable information is required:
23.4.3 When requested by the responsible third party (or their insurers as the case may be) or instructed by the Service Manager, the Provider provides the responsible third party (or their insurers as the case may be) with a calculation of Third Party Claims Defined Costs and resulting Third Party Claims Overhead.
23.4.4 The Provider does not seek to claim more than the amount calculated in accordance with the principles set out in Appendix A to this Annex
In Area 9, for example, every invoice issued by Kier Highways to a Third Party since 07/2014 has been for more than the amount calculated in accordance with the principles set out in Annex 23 (above). Between 07/2014 and 10/2015 the exaggeration likely exceeded £10million.
The contract, from inception, set out a single third-party charging procedure at Annex 23, It is evident Highways England have not ensured this is complied with but permitted contractor’s nonconformity for years.
Since the suspension of the NSoRC (31/10/2019), Kier has engaged a further contract non-complaint pricing process, their 7th (https://www.englandhighways.co.uk/2020-kier-highways-7th-approach-to-dcp-rates/) and supply even less information in support of claims https://www.englandhighways.co.uk/kier-highways-latest-profiteering-process/.
- I ask that this matter be progressed as a formal complaint and understand I can expect to receive a response within the next 15 working days i.e. on or before 18/03/2020.
My requests below, having not been addressed in the usual course of business and those above, should now be considered a Freedom of Information Act approach; I expect to receive the information within 20 working days i.e. on or before 26/03/2020.
I reserve the right to bring this email to the attention of the Courts mindful your General counsel is ‘more than happy for me to give evidence in Court’ (04/07/2019) contradicting your lawyers raising ‘expert witness’ objections on every occasion I have sought to present a balanced account on behalf of insurers. I remain, as always, willing to assist you to compile a schedule of rates. As ‘market leaders’ in the field of DCP claims, we are ideally positioned to provide impartial assistance – we are in the business of claims resolution even if this should mean less need for our services.
To: Tim Reardon @ highwaysengland.co.uk; Jim O’Sullivan @ highwaysengland.co.uk: Colin Matthews @ highwaysengland.co.uk; Alex Bingham@highwaysengland.co.uk
Subject: State Enabled Exaggeration & Fraud on an Industrial Scale – Kier Highways / Areas 6, 8 & 9 Rates
I have not received a response to my emails within 15 working days.
I understand the Parliamentary & Health Ombudsman has been advised Kier’s methodology has been addressed following introduction of the NSoRC. However, the NSoRC ceased to operate as of 31/10/2019 and Kier’s current (7th ?) pricing methodology is also not consistent with the contract, does not comply with Appendix A to Annex 23.
Kier have never complied with the contract since day-one (in Area 9 at least).
Please confirm you are treating my concerns about Kier Highways failure to comply with Appendix A to Annex 23 as a formal complaint and advise the present position with regard to same.