30/04/2020 From: Tim Reardon@ highwaysengland.co.uk
I refer to your email of 28th April addressed to Jim O’Sullivan. I have been asked to reply to you on his behalf.
As previously advised, there is no schedule of rates for unscheduled damage repair claims which is used by either Highways England or its contractors. This much was determined by the Tribunal in their decision dated 12th December 2019.
Kier Highways Ltd have confirmed that the schedule you have referred to (Area_3_equipment_Defined_Cost_latest_15.xls) is outdated. They no longer have a record of it and it is not now used by anyone within the business. Similarly, this document has never been held or used by Highways England.
We have been informed by Kier that the schedule would have contained a list of equipment rates from 2015.
Under the terms of the Asset Support Contract (ASC), equipment rates do not fall within the defined cost definition but are market tested. They are therefore a separate, distinct element of a damage claim. The market rates for equipment are calculated using the Civil Engineering and Contractors Association (CECA) Schedule of Equipment Rates, minus 30%.
We have already explained the position concerning recent amendments made to the ASCs in Area 3 and 9. The two contracts contained differing contractual provisions and both parties felt it necessary to take steps to bring the contracts into alignment.
The process provided an opportunity to ensure that both contracts reflected the correct legal basis for the recovery of damages as confirmed by the Court of Appeal in the case of Coles v Hetherton.
With regards to the cases which are currently before Cardiff County Court, you are not a party to this litigation. It would be inappropriate for us to comment further on matters which are currently subject to live proceedings in which you play no role.
This email covers the same issues raised in your previous complaints dated 25th and 28th February. Please consider this to be our response under the second stage of Highways England’s complaints process to these matters. For further details, please see here.
General Counsel Directorate
Highways England | Bridge House | 1 Walnut Tree Close | Guildford | Surrey | GU1 4LZ
Tel: 044 (0) 300 470 1224
Mob: 07525 908857 Web: www.highwaysengland.co.uk
EA Valentini Manikou Tel: 044 (0) 300 470 8335. Mob: 07907 979551
Continued 01/05/2020 – click here
28/05/2020 response with FoIA – read more here.