200324 Response to Highways England re Kier Highways Exaggeration & Fraud

23/03/2020 to Highways England (from 16/03/2020 reply)

Dear Sir,

Please escalate this Kier Highways Ltd complaint to stage 2 – Summary of Exaggeration & Fraud

Since 07/2014, to this day, Kier Highways has exaggerated charges for unscheduled damage claims, acted fraudulently and failed to comply with the contract. – all in the name of Highways England, known to and permitted by your Authority.  In Area 9, Kier has not abided with Appendix A to Annex 23 of the Area 9 contract.

Whether the provisions ( Appendix A to Annex 23) have been superseded and no longer apply has no bearing upon my complaint save that it evidences the process was in place, should have been engaged.   Your new process that sees far higher rates, was likely welcomed by Kier.  How have you acted in the best interests of those you serve, why not insist the contractor act in accordance with the terms they signed up to, the basis upon which the contract was granted? 

The fact remains Kier Highways were to adopt a single process (Appendix A to Annex 23) – they have used multiple – when caught out, they change. You kept Appendix A, the protection form overcharging, form the very people who needed it, the public.  Kier did not comply and Highways England failed to identify this or turned a blind eye to it.  Drivers, fleets, hauliers or their insurers were thrown to the wolves, abandoned by an Authority whose role is to serve them.

Cases, where legal proceedings have already been issued, have NOT been priced using the procedure set at Appendix A to Annex 23. This includes the cases before Cardiff County Court to which I refer.  In some instance ‘multipliers’ have been fraudulently been charged.  If you believe to the contrary, kindly evidence this:

  • I remain keen to understand how a £25/hour AIW operative to you becomes £65+/hour to a Third Party by applying the 25.29% uplift you agreed with Kier. 
  • Additionally, how is applying a 50% uplift to £65+/hour for an AIW after 5pm of a weekday, other than fraud and contempt (when describing the uplift to a Court)? Kier Highways, in your name, state they pay this multiplier to the AIW because the operatives work 8am to 5pm and must be paid the increased rate. Conversely, AIW’s say they work shifts, are not paid the uplifts and even overtime is at a flat rate.

Your statement is clear’ Appendix A to Annex 23 is good, it should have been applied.  As I have evidenced in person 21/06/2016 and in an account to KPMG (transcript), Appendix A has not been complied with and you have failed to act, permitted the action.  It appears your contractors are in control. 

I note you have implemented a new process for Kier; having been caught out not acting in accordance with Appendix A, rather than instruct compliance, you are replacing it with a new means by which Kier can overstate claims.  Clearly, Kier have never wished to be bound by Appendix A.

I await your ‘actual costs’ schedule, the reasonable charges to be used.

I remind you Highways England and a contractor have referred to the Judgement of HH Godsmark who wrote:

It would be odd if a tortfeasor was liable to Highways England for diminution in value of a damaged chattel in one sum if sued by Highways England itself and in a different sum if sued by Highways England via BBMM (a contractor). Full Judgement here.

Please confirm we will be billed just as you are ‘actual cost’ plus fee.  If not, why not?

Are Highways England now being billed for unscheduled damage claims using a fixed schedule of charges, derived from first principles using the Construction Industry Joint Council (CIJC) Working Rule Agreement and Civil Engineering Contractors Association (CECA) Schedules of Equipment Rates?

• If not, why not (I refer you to HH Godsmark above)?
• If so, why and on what basis; the increase would be substantially in excess of an inflationary increase!

Yours faithfully,