Birmingham Council Contradictions

But Kier ARE using CECA rates, they are NOT using ‘actual costs’ – we can gauge these from the neighbouring Area 9 (Highways England) rates we possess.  The response may convey what was agreed, it doe snot describe what is actually occurring; KSoR are not ‘actual costs’ and they are ‘CECA’ rates (to an extent) – ‘CECA’ is emblazoned on the schedule presented to Third parties headed ‘DCP* Claims and the Kier Schedule of Rates’

*DCP – damage to Crown property

We asked BCC whether Kier was using the KSoR and the response, 17/03/2021 (21653889), was ‘NO’ – but the KSoR is being used to bill Third Parties.


FoIA related to Birmingham City Council


02/11/2020 – 18993085Kier Highways Ltd (contract, costs etc.)

25/11/2020 response – 201125 FoIA response which can also be read here.

05/03/2021 IC-88546-L4P2


26/11/2021 – 19626589 –  Seeking clarification to the above response, the Authority recorded the approach (15/03/2021) as a new request (in the same thread)

24/12/2021, the Authority needed more time to consider the request.

14/01/2021 – Authority Response 19626589 210114 response from BCC BCC cited ‘commercially sensitive’ and:

There is a monthly commercial, valuation and assessment process that takes place between BHL, BCC and Kier with full transparency of costs incurred and forecast. This monthly process includes the necessary due diligence and verification prior to payment being made to Kier as part of the contract. The rates and costs agreed with Kier at the outset originated from those presented and submitted as part of the competitive tender in late 2019 and early 2020.

Costs for staff and labour are those that form part of the competitive tender submitted and agreed with Kier in addition to those of the TUPE workforce (including a combination of historical Amey and BCC employment). Detailed applications for payment are submitted by Kier on a monthly basis, which includes all of the necessary substantiation and detail for the costs incurred as well as the detailed cost transaction report for all levels of activity and associated costs

Notifications and reports are continuing to occur, including the quarterly Third Party Claims data. This is confidential information and will not be disclosed* for the reasons stated below.

*yes it will, to some –


03/02/2021 – 21277088Damage to Street Furniture Claim Costs & Recoveries – information sought about 2 settled claims.  Exemption cited – 21277088 210305 Response information exempt

05/03/2021 The rates being requested are commercially sensitive as they are the tendered rates. No Kier rates are in the public domain* (through Highways England or
otherwise) … 
All rates associated with the BHISC between Kier and BHL and those between BCC and BHL remain commercially sensitive under section 43 of the Freedom of Information Act (FOIA).

09/04/2021 the exemption was upheld following an internal review. Read more here.

*clearly erroneous; they can be found here and the Authority subsequently u-turned in the same thread (see below).

28/05/2021 to Birmingham City Council:

the essence of my request is simple, and your avoidance indicates all is not as you have stated, the contradictions appear to confirm this.

    1. Are the KSoR* (Kier Schedule of Rates) which Kier Highways are charging drivers, fleets, hauliers or their insurers (Third parties) following damage to the road or ‘street furniture’ following incidents (collisions, spills or fires being the common cause):
      1. the contractually agreed rates, to which you refer, those you agreed within the contract and
      2. the rates you are charged for such works – if no Third-Party culprit is identified

*a set of rates in the public domain – https://www.englandhighways.co.uk/dcp-claims-and-the-kier-schedule-of-rates/


18/02/2021 – 21653889Kier Damage to property Repair Rate Confirmation

It appears Kier Highways are not complying with the contract but charging those unfortunate enough to hit Council property using a different, higher schedule of rates than those agreed. Contrary to your account, Kier are using CECA rates which appears to contradict your ‘not profiting from claims’ response. There is a lack of the transparency you convey.

17/03/2021, BCC responded 19626589 210114 response from BCC:

All rates associated with the BHISC between Kier and BHL and those between BCC and BHL remain commercially sensitive under section 43 of the Freedom of Information Act (FOIA).

Odd because, as below (14/03/2021 – 22401086), the Council subsequently u-turned and referred us to Kier using CECA and that they are in the public domain (not commercially sensitive)!

we asked:

B. Is the above schedule of rates that agreed with Kier to be used when billing the Council following damage to Council property?

No – the BHISC* is not subject to any Kier Highways England schedule of rates

* Birmingham Highways Interim Services Contract

15/04/2021, the BCC’s internal review concluded:

The panel considers that the rates being requested are commercially sensitive as they are the tendered rates and that no rates attributed to Kier and within the scope of this request are in the public domain (through Highways England or otherwise).

The rates have been acknowledged, contrary to the original response, to be CECA.  These are publicly available i.e. NOT commercially sensitive.  Furthermore, the KSoR are in the public domain – released with each claim and on view here. Contrary to BCC’s statements, the KSoR comprise CECA i.e. a further endorsement that the KSoR are not commercially sensitive.

17/05/2021 IC-100855-S8J9


14/03/2021 – 22401086Seeking clarification to the above response, the Authority recorded the approach (15/03/2021) as a new request (in the same thread)

  • Are the KSoR rates those agreed with BCC to be used by Kier Highways when billing Third Parties who cause damage to Council property etc.?
  • If the KSoR rates are the same if they are those agreed, then what is the problem with releasing said rates, why would they be commercially sensitive given they accompany every claim, are in the public domain and are based on an available schedule, CECA?
  • Of course, a problem then arises because you have stated there is no profit associated and the agreed rates are NOT based upon CECA.
  • If they are not the same, if appears Kier Highways KLts are, once again, not complying with a highways maintenance contract, it appears they are again adding unauthorised uplifts.
  • Additional concerns would be that your monthly updates have failed to identify this and claims against your road users continue to progress base upon high charges and Kier Highways Ltd seemingly acting outside their Authority.
  • These claims are not at ‘cost’ as advised.

The response, a U-turn … Kier ARE using CECA rates, these ARE in the public domain – 22401086 210409 Response re Kier can use KSoR

09/04/2021 – Kier price Third Party damage claims using a fixed schedule of charges derived from first principles using the Construction Industry Joint Council (CIJC) Working Rule Agreement and Civil Engineering Contractors Association (CECA) Schedules of Equipment Rates. Kier Highways have agreement to adopt this approach. The invoices they send will be accompanied by a statement detailing the resources and associated rates which have been applied.

There is full transparency of costs between Birmingham Highways Limited, Birmingham City Council and Kier Highways under the terms of the contract. Kier Highways do not retain any recovered costs in relation to claims, and monies recovered are reconciled as part of the monthly application for payment process. When required and which is reasonable, claims handlers and solicitors will be used in order to recover costs that are due.


13/04/2021 – 23184149 – Seeking clarification to the above response, the Authority recorded the approach as a new request (in the same thread)  –

  1. please explain what is meant by this, the process. As the costs charged by Kier are, as you describe, ‘public domain’ records:
  2. please explain why you have not addressed my FoIA request, a copy of which appears below.
  3. please address the FoIA request (below); provide the information I have sought

12/05/2021 – a reversal of the above, the rates are once again ‘commercially sensitive’ – 23184149 210512 Response claim details exempt

Birmingham City Council considers that the rates being requested are commercially sensitive as they are the tendered rates and that no rates
attributed to Kier and within the scope of this request are in the public domain (through Highways England or otherwise).

 


15/04/2021 – 23307281 – Seeking clarification to the above response, the Authority recorded the approach as a new request (in the same thread).  We wrote to BCC:

You are missing the point.

  • If Kier is utilising CECA/KSoR rates, as they are, not only are they acting contrary to your stated arrangement, these rates are not commercially sensitive as they are publicly available and could be disclosed.
  • If CECA/KSoR rates were submitted at tender (and the utilised rates were said to be those tendered), again, they could and should be disclosed.

It appears Kier submitted one set of rates at tender but are now utilising another; that the rates you are withholding, provided at tender for damage repairs are NOT CECA/KSoR rates ergo, your previous response is not correct or Kier are not complying with the contract.

As you have unequivocally stated Kier are not using CECA rates, but they are, clearly something is amiss.  The above requires clarification, transparency if only to remove any suspicion of impropriety that may arise from the contradictions. I await this.


12/05/2021 – 24056381 – Third Party Road damage Claim Costs & Recoveries Utilizing CECA request for information relating to two claims


Note:

Highways PFI – The Court of Appeal decided that pricing data, including business case and financial model, together with profit rates and pricing data was worthy of protection and was therefore exempt from disclosure, as the release of such commercially sensitive information was a breach of the Veolia’s human rights under article 1 of the 1st protocol of the European Convention of Human Rights.

For information to be deemed to be confidential, it must have the following characteristics, namely being:

  • The confidential information must not be in the public domain

The information fails this test ergo it is not commercially sensitive.

Highways Maintenance and Management Service PFI