200928 IR request re Kier Schedules of DCP Rates Held &/or Deleted

28/09/2020 to HE re FoIA request ‘Kier Schedules of DCP Rates Held &/or Deleted‘.

to Alex Bingham
Lawyer
General Counsel’s Directorate

Dear Mr Bingham,

Please pass this on to the person who conducts Freedom of Information reviews.

My request concerns the provision of schedules of rates held for damage repair work (which
you refer to in your request as DCP works) since 1st July 2014.

You have not repeatedly addressed these issues. The Information Rights Tribunal decision dated 12th December 2019 found that no such schedule of rates was held but, as I have raised, this is because the original CBD (cost breakdown document) appears to have been tampered with. Specifically, the CBD usually provided to Third Parties in pdf format, is actually an Excel spreadsheet, a file that is populated by other linked/reference workbooks. But the CBD presented for the claim about which the 12/11/2019 Tribunal hearing was centred, had no such references, it appears they had been removed. I am assuming this was by the Kier ‘author’ or the HE employee who ‘last saved’ the document.

The first schedule of linked DCP rates I raised with your General counsel was:

Area_3_equipment_Defined_Cost_latest_15.xls (‘Area 3’)

Your General Counsel has confirmed this file is a schedule of rates. Odd, according to your Authority there is only one set of rates for an ASC (contract)

Your General Counsel promptly replied (in 3 days, without the use of FoIA or the suggestion of vexatious) that it did exist but had been deleted(?).

You will therefore appreciate that I am concerned Highways England has stated there has only ever been one schedule of rates in an ASC (contract) and no other. It is difficult to conclude I was not provided false information. Furthermore, your contractor was also aware of my request and therefore I am concerned to understand when and why they deleted such information. Possibly you can shed some light on the conduct encountered. It appears your latest response is a form of ”taking the fifth’.

In responses between 2013 and 2018 (as evidenced by HE’s statement https://www.englandhighways.co.uk/sian-jo…) the schedules were held but said to be sensitive. The statement maker is clear – I was after DCP rates, this was understood by HE It appears the schedules referred to were those I have more recently uncovered ‘Area 3’ and ‘Area 9’.

The ‘Area 3’ schedule was never provided in response to a FoIA. It has been used in claims that have proceeded to Court as recently as 2020 yet is said to have been ‘deleted’, is old. It has not been explained when it was deleted, why, how (I suspect it could be identified, reinstated) and when it was last used.

I also learned of another schedule of rates:

‘Area 9 DCP 35010 costs.xlsx’ (Area 9)

Your General Counsel possesses a similar request for information about this from me, comparable to that about ‘Area 3’. He assured me this was being looked into. However, whilst not expecting another 3-day turnaround, without a response it appeared necessary to engage FoIA. Now, your Authority has completed a U-turn with regard to that matter; you will not address the FoIA request but cite the same excuse.

My request of 27/04/2020 27th April (FOI 101068) concerned information disclosed to Cardiff County Court (D98YM582 I believe to be a reference) and the reasons for this. You have provided a response to this; you have stated (and I precis) that there is only one schedule of rates (ASC for planned works) and this has been supplied to the Court. But clearly, there were other sets of rates, I have identified and disclosed two thus far. The two schedules were being utilised in 2018 and many of the Cardiff matters pre-date this. Yet despite numerous requests for the information (between 2013 and 2018) and the Court seeking rate information, you have not supplied the two schedules I have referred to.

Additionally, you have said that the Cardiff matters were priced using Appendix A to Annex 23. But they were not:
1. Firstly, Appendix A requires you to have a common schedule of rates for HE and TP’s – this was not utilised in any of the claims in which we have an involvement (20), being considered by Cardiff County Court.
Secondly, I have been informed by a party privy to the proceedings that ‘Kier have not said in proceedings they have issued claims in accordance with Section A. It is clear they have not.’

My request is therefore far from persistent. It is a natural progression of responses and information obtained ‘like pulling teeth’ from HE, to understand the contradictions of your making.

The alleged wrongdoing by Highways England and Kier in relation to third party claims has not been addressed by Highways England; you enabled the conduct to continue. The fraud was ignored and continued. For more information, please see:

https://www.englandhighways.co.uk/200402-…
https://www.englandhighways.co.uk/example…

You have assisted your contractors and /or your authority to profit from claims at the expense of those you serve.

https://www.englandhighways.co.uk/highway…

Neither the ICA nor the Ombudsman has considered the issues relating to fraud and the schedules of rates to which I am referring above. If you believe to the contrary, please evidence this.

A full history of my FOI request and all correspondence is available on the Internet at this address: https://www.whatdotheyknow.com/request/k…

Yours faithfully,

Mr P Swift