… and why are Highways England enabling and permitting this?
Kier Highways are to charge (in this case an insurer) by use of:
- ‘Defined Costs’ (the ‘base rate’ or ‘cost’) plus:
- Third-Party Claims Overhead (TPCO), a percentage.
The above is set out in Appendix A to Annex 23. It was evident Kier (initially EM Highways*) were inflating costs pre-10/2015 and subsequently presented a new process, exaggeration in another guise. 01/2017, we stumbled across the ‘secret’ agreement – the process they kept from drivers, fleets, hauliers or their insurers ‘Appendix A to Annex 23‘ and the A + B (above) = maximum a Third Party was the be charged process.
Coincidentally Kier has never complied with the process Highways England failed to enforce it and neither mentioned it.
As of 01/2017, we knew Kier were not complying with the process but the Authority, aware, permitted the overstatement (and fraud), failed to act. No matter how much evidence we presented Highways England, they failed to have Kier comply with the contract, indeed, Kier, Highways England and their lawyers (they both utilise the same lawyers) ‘turned on us’. But 08/2020, a Judge vindicated our position after considering two Kier claims in detail. Astoundingly, the Authority’s own witness acknowledged unauthorised exaggeration, recorded in the Judgement (para. 36):
‘Furthermore, for the purposes of assessing the extent of Kier’s authority within Area 9 (Area 6/8) the court cannot ignore the evidence given on behalf of the claimant by Mr Cairns. In summary, on this issue his 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.’
Kier was acting outside their authority, they had been since at least 01/07/2014 (Area 9). Claims are currently in the process of being reduced.
But Kier has never complied with the contract, they have never charged a Third-party by use of ‘defined cost’ plus’TPCO’ … so what figures have they been presenting to Highways England … other than false ones?
In 2016, we were told the contract is subject to a ‘pain/gain share’ in brief, if Kier recovered over a threshold their monthly; lumpsum payment would be reduced. But we were told no contractor had ever achieved this.
- How on earth could Kier Highways not have exceeded the target figure (threshold) given their profiteering conduct:
- 07/2014 – use of 1153; 5x exaggeration of some aspects
- 10/2015 – use of ‘CBD’; base rates not used but inflated charges to which fraudulent multipliers were added
The simplicity of this allegation is in its logic:
Kier Highways are to supply Highways England with claim data. This is required in accordance with Annex 19 reports which seek:
- Defined Costs
- TP Claims Overhead
- Amount invoiced
- Amount recovered
What was Kier supplying Highways England, because they were not providing the actual defined costs plus overhead. As admitted to the Court (above), Kier was charging unauthroised uplifts’ therefore:
- what they were presenting at ‘a’ above was NOT the defined costs?
- if they added the TPCO (‘b’ above) it was to inflated rates, not defined costs
- the total was excessive
- the amount invoiced at ‘e’ above was excessive and
- if, at ‘e’ above they received in full they recovered the excessive sum;
- they recovered in excess of defined cost + TPCO
*KIER HIGHWAYS LIMITED Company number 05606089 formerly EM HIGHWAY SERVICES LIMITED