201009 FoIA Request for the ‘Contractually Agreed Rates’ Agreed by Kier & Highways England for DCP Works

09/10/2020 FoIA Request to Highways England Company Limited,

Re Case No: E47YJ407 & E82YM832 IN THE COUNTY COURT AT CARDIFF
HIGHWAYS ENGLAND COMPANY LTD & Insurers
Following hearings on 19th, 20th May 2020 and 16th July 2020, 21st August 2020,
HIS HONOUR JUDGE HARRISON Approved Judgement

Please confirm whether the following will be addressed in the usual course of business or if the request for information will be treated as a FoIA request. You will be aware that we have about 20 Cardiff claims stayed in respect of which Highways England is the claimant and Kier your contractor.

With regard to the above judgement, your own quantity surveyor coming to a conclusion that the sums claimed were too high and the Judge remarking that ‘simply allowing claimants to set their own market for cases of this sort might be regarded as undesirable’, please would you provide me with the following information, referenced in the judgement:

1. The names/definitions for the various rates that exist or existed in respect to ASC’s.

Para. 6(iv): ‘For repairs valued in excess of £10,000 Highways England are charged by Kier using contractually agreed rates’:

2. These ‘contractually agreed rates for repairs over £10,000

Para.7 regarding ‘claims worth less than £10,000’; they (Kier / Highways England) have valued the diminution by reference to rates other than those agreed between themselves and Highways England for repairs in excess of £10,000

3. These (other than agreed) rates used for the valuation

I believe the above rates, used to promote claims in respect of which Highways England is the claimant, are ‘held on behalf of’ your Authority, mindful Highways England has approached Kier for DCP rates to address a FOIA request previously and these have been obtained, disclosed or explanations provided.

Para. 36. Mr Cairns ‘evidence was to the effect that the costs calculated for the purposes of the claim did include uplifts for which he was unable to find authority within the contract’.

4. The uplifts applied and Highways England sought and
a. how the uplifts were calculated, achieved; percentage etc.
b. the authority for these (if one exists) or
c. confirmation there is no authority

I note ‘the lower rates are relevant’ (para. 37), but the TPCO can be added (para.38). This is a situation, conveyed in Appendix A to Annex 23, our correspondence has reflected for the past years but which Kier, Highways England and Corclaim ignored. The process also satisfies HHJ Godsmark’s judgement; the rates to you and a Third-Party should be the same.

Para. 38 also explains that ‘lower rates’ plus TPCO is a calculation that ‘could readily be made by the parties’:

5. Please explain how such calculation could ‘readily be made’ and provide all information relating to the process of undertaking the calculation i.e. provide all information that enables me to make this calculation.

In the absence of a schedule of DCP rates, undertaking said calculation appears impossible.

6. The Third Party Claims Overhead for Area 6&8 (Norfolk)

7. Since the commencement of Area 3, 6&8 and 9 Kier contracts, the uplifts or multipliers Kier operatives (formerly known as AIW’s) are or were paid for attending emergency incidents during anti-social hours and provide:

a. Anti-social hours – the times
b. The uplifts charged to a Third-Party
c. The uplifts charged to Highway England

Yours faithfully,

Mr P Swift

Further information can be read here.


06/11/2020 – Highways England again fails to provide information within the statutory 20 working days.