Area 9 Kier Highways DCP Rates Exist

 

The Request

  1. My request was made 11/12/2018, I sought:
    1. Damage to Crown Property a.k.a. DCP Rates for Areas 9 and 10 from inception of the current contact to the present date, being the schedule of costs referred to at paragraph 14 of the attached witness statement, confirmed under Oath by Patrick Carney at the First Tier Tribunal Information Rights appeal hearing on 21 November 2018[EA/2018/0104] as not being commercially sensitive.
    2. This request replaces any outstanding earlier requests relating to costs now that the precise nature of available information has been clarified by [named individual]. I am seeking to avoid any ambiguity in what I am seeking, by clarifying my request and using exact nomenclature adopted by yourselves.
  2. Paragraph 14 of Mr Carney’s statement[1] (28/08/2018 EA/2018/0104) states:
    1. By analogy with the services provided by a plumbing business,
      1. ASC Rates set out charges related to the instalment of a complex system of plumbing as part of a major construction project in a planned way with economies of scale whereas
      2. DCP Rates set out the standard charges for fixing a burst pipe: inevitably, the rates charged are very different as are the calculation methods and the variables involved.
  3. Mr Carney differentiates the two types of rates, gives a name to them and my request is for those costs used for DCP events.
  4. Whilst Mr Carney does not specifically say ‘DCP Rates exist’, his conduct has supported this yet I am not relying upon this, nor have I said that because Mr Carney gives a name to the type of rates, is this evidence of their existence. In this respect, Mr Carney does protest too much.
  5. DCP rates exist as they are the prices cited on demands presented to Third parties, they are what is being claimed for. To suggest DCP rates do not exist is illogical a nonsense.  How they are held is pertinent.
  6. My request explains I am ‘seeking’ to avoid ambiguity. I do not believe uncertainty exists, I was not vague and the Authority proceeded without seeking clarification.

Semantics

  1. Mr Carney now seeks to obfuscate by introducing ‘Schedule of Rates’ as having a specific meaning.
    1. Not to me
    2. My requests are specific and identify the rates as those Mr Carney named ‘DCP Rates’; how they are held, in what format and how such a price list was referred to was of no consequence, is unimportant. I used the term ‘schedule’ to convey a list or collection of rates.
  2. My request does not dictate a ‘schedule’ that needs to be complete.  Indeed, the request captures any ‘schedule’ or ‘list’ be it a few costs or all for:
    1. Staff, being office employees
    2. Operatives, being people ‘on the ground’
    3. Plant, the vehicles engaged and
    4. Materials, the components utilised to reinstate damage

The inception of the Contract

  1. The request relates to Areas 9 (Kier Highways) and Area 10 (BBMM) from the inception of the contract:
    1. Area 10 commenced 2012
      1. Below £10,000, BBMM billed TP’s using CECA rates
      2. Above £10,000, BBMM billed HE using ‘defined costs’
    2. Area 9 commenced 01/07/2014
      1. Below £10,000, Kier billed TP’s using ‘contract non-compliant rates
      2. Above £10,000, Kier billed HE using ‘defined costs’

Not being commercially sensitive

  1. I have referred to these DCP rates as ‘not commercially sensitive’ believing this to be Mr Carney’s approach:
    1. Some contractors, to include Kier, have provided rates
    2. The rates appear on 1,000’s of claim packs submitted to Third Parties i.e. are in the public domain
  2. Kier has also, historically, (for 1153) provided very detailed breakdowns.

Area 9, rates exist

  1. My request captures the rates Kier utilised when applying their 1153 process (07/2014 to 10/2015), I had expected these to be disclosed with the subsequent information.
  2. However, HE now describes what could and should have been provided since my requests for DCP rates commenced in or about 2014:
  • Plant Rates
  1. In none of their response has the Authority previously conveyed that plant rates are CECA -30%, this explanation (the use of the CECA schedule of rates) for use as DCP rates has been withheld.
  • People Rates
  1. Since 2015, Kier’s people rates have been the subject of a reconciliation exercise to establish values, the ‘defined cost’ of people. The ‘defined cost’ is NOT a definition, but a value.   The definition sets out the costs that are permitted to be added to comprise the value.  The definition is a ‘Schedule of Cost Components’ (SoCC) not the individual values or their total. HE confirms this (D. Ash para. 10) in contradiction of previous explanations.
  2. Since 2015, Kier provided HE anonymised detail about the way they proposed to charge people rates under the Area 9 ASC in the period up to their next review:
    1. The process has occurred for 5+ years:
    2. Rates were established for DCP works i.e. DCP rates were compiled
    3. The rates were valid to the next review, roughly annually i.e. they were valid for a year
  3. The above process results in a ‘schedule’ of DCP rates, it satisfies Mr Carney’s analogy of ‘DCP Rates set out the standard charges (for fixing a burst pipe)’ i.e. the rates described are captured by this and multiple previous requests (where the Authority stated ‘held’).
  4. My request captures the:
    1. anonymised information provided to HE roughly annually since 2015 and
    2. the review outcome, the ‘set of people rates’ resulting from this
  5. DCP Rates unequivocally exist because annexed to HE’s statement are sets of DCP rates.
  • DCP Rates are ASC Rates
  1. But HE has gone much further; these agreed ‘people rates’ are used consistently across all services in the contract which are reimbursed on a defined cost basis, including those services required by the contract to be delivered as cost reimbursable, schemes to replace life-expired assets, or enhance the Area network, and Green Claims against third parties for damage to the Area network, that is to say, they are used for:
    1. DCP works i.e. unplanned events, emergencies
    2. ASC works i.e. planned events, schemes for enhancing or replacing parts of the SRN
  2. HE acknowledges ASC rates exist but have informed me, the ICO and tribunals:
    1. DCP rates do not exist
    2. ASC rates exist and no other
    3. ASC rates are not DCP rates
  3. HE now states the outcome of a review is a set (singular) of people rates they agree to pay for all work performed by Kier in Area 9 under the ASC – that is to say, both scheme work AND repair work.
  4. DCP rates exist, they have always existed, they are ’agreed’, they are reviewed annually (approx.), they comprise a ‘set’ of rates and are used for ASC and DCP works.

Misunderstanding

  1. HE’s explanation of the process, the rates and their consistency accord with my understanding of the process; there has been no misunderstanding on my part. By his own acceptance, HE’s witness at previous Tribunals has now acknowledged information that undermines his previous statements and accounts to Tribunals.
  2. I question whether I need say more on the subject of Area 9 DCP rates which clearly exist. However:

‘DCP Rates Exist’ – the History

 

 

[1] https://www.englandhighways.co.uk/180828-statement-of-patrick-carney/