190510 DCP Charges to Highways England

10/05/2019 DCP Rates Charged to Highways England

769,825 / 769825 & 770,202 / 770202 / 770541

10/05/2019 Internal Review

Further to your email dated 8 April 2019 regarding an internal review of our response to your request under the Freedom of Information Act 2000 it has been passed to me to conduct an internal review of the way in which your request (ref 769,825) was handled.

In your e-mail dated 8 March 2019 you requested

• The rates you are charged for above threshold DCP works, the schedule of rates used for above and below works

• I am seeking all information that has been provided in respect of this specific matter. To date I have but a brief overview, not the detail that the contractor (according to the above statement) sends, the Annex 5 codes

• When undertaking the Review, please explain the contradiction and provide a copy of Annex 19 from the contract in support of the statement made. I also expect to be provided the information you receive, routinely in accordance with the contract, from your contractor.

• I ask that the review consider how this applies to charging on a case by case basis, without a pricing schedule

• To what was the contractor objecting unless a schedule exists

• The date of incident/attendance would involve one set of calculations

• The date of repair another set of calculations

• Unless there was a schedule of rates to review and consider, what was he commentating upon and how could he reach such a conclusion? It appears I will require all information to which Mr. Reardon was referring, what he reviewed.

• Asset Support Contracts (ASC) are the subject of schedules of rates; ASC and DCP and likely fall within Contract Data Part 2. It is the DCP Rates to which I am referring and expect the rates to be reconciled with

On the 5 April 2019 you were provided with the following response –

• The rates you are charged for above threshold DCP works, the schedule of rates used for above and below works

This information is not held. For the above threshold claims we are charged the defined cost of the works plus fee. We don’t hold a schedule of rates relating to below or above threshold claims.

• I am seeking all information that has been provided in respect of this specific matter. To date I have but a brief overview, not the detail that the contractor (according to the above statement) sends, the Annex 5 codes

There is no further level of detail that can be provided.

• When undertaking the Review, please explain the contradiction and provide a copy of Annex 19 from the contract in support of the statement made. I also expect to be provided the information your received, routinely in accordance with the contract, from your contractor.

A copy of Annex 19 is attached. The Annex 19 data in respect of Annex 23 is not routinely requested.

• I ask that the review consider how this applies to charging on a case by case basis, without a pricing schedule

An assessment is made based on each individual claim.

• To what was the contractor objecting unless a schedule exists

The contract contains a Pricing Schedule which the contractors and Highways England consider is exempt from disclosure under section 43 of the FOIA as it contains commercially sensitive information.

The Pricing Schedule contains information that contractors use to prepare their tender submissions. The rates in the Pricing Schedule are then used throughout the duration of the contract but not in relation to third party claims.

• The date of incident / attendance would involve one set of calculations

This is not a request for information.

• The date of repair another set of calculations

Again, this is not a request for information.

• Unless there was a schedule of rates to review and consider, what was he commentating upon and how could he reach such a conclusion? It appears I will require all information to which Mr. Reardon was referring, what he reviewed.

Mr Reardon’s comment relates to a review of the actual cost of repairs which is considered reasonable.

• Asset Support Contracts (ASC) are the subject of schedules of rates; ASC and DCP and likely fall within Contract Data Part 2. It is the DCP Rates to which I am referring and expect the rates to be reconciled with

There are no rates for third party repairs in the contract. The Providers are required to recover the actual cost of repair using the Defined Cost of the works plus fee.

During this internal review Highways England were made aware that the subject of Defined Costs and DCP Rates for Area 9 and 10 are being looked at in relation to a criminal investigation by the ICO under S.77 of the Freedom of Information Act. As such, whilst the matter is being investigated, it would be inappropriate for Highways England to make any further comment on this matter including the ones made in our response to this Freedom of Information request, which was in relation to Area 9.

With regard to the non-Defined Costs and DCP Rate points of your request, it has been noted that Annex 19 was not attached to our response. This was an oversight, please accept our apologies for this. A copy of Annex 19 is attached with this internal review.

Having reviewed the responses provided by my colleagues to the initial request and after my discussions with my colleagues about the responses they provided, other than the oversight of not attaching Annex 19, I am satisfied that the request was handled correctly and that no further explanation can be provided to the responses already received.

You also asked for an explanation as to why we treated some aspects of your e-mail as statements and why we did not clarify them with you. We did this because we believed that they were clearly statements and not questions and as such did not require us to ask you for clarification.


10/05/2019 Response to Highways England

Dear Mr Drysdale

Thank you for your response. To address the non-question:

The date of incident/attendance would involve one set of calculations. To present this as a question, or request:

Please explain the calculation that is undertaken which results in the defined cost, or DCP Rates, charged to Highways England and Third parties; set it out for me so I can understand how the figure is arrived at, how ‘providers’ establish on any given date / time the rate to apply.

I am at a loss to understand how a contractor recalculates their figures daily, weekly … whenever such that these are not fixed, in a schedule either agreed by you, held by you or held for you by the contractor – they are after all using he rates to invoice you too.

Recent responses only confirm ‘defined cost is in effect the actual costs of an individual repair.’ This is unhelpful save that it confirms the DCP rates / defined costs are pre-profit figures, the cost before revenue. I am also not satisfied that it is entirely correct as Defined Costs’ deal with specific aspects of a repair, the TPCO addresses items such as ‘planning’ which are also costs associated with repair, distinct from profit. I doubt anyone is suggesting Kier Highways are demanding 26% profit.

Other statements made are unnecessary, irrelevant. Reference to ASC Rates for example should cease. 175 FoI requests and reviews for ‘rates’ related to damage are clearly not requests for ASC Rates i.e. pre-planned charges.

I understand each case is treated on its own merits. This is obvious.

The costs will be in relation to emergency reactive response by contractors and their sub-contractors, for unplanned, unpredictable incidents that may occur at any time, in any location on the network and with varying impact. This is correct and applies to above and below threshold, it has not effect on the hourly rate, simply the number of hours they are engaged.

Similarly, conveying ‘The work and cost involved in an emergency response is determined by the nature scale and urgency of the incident and repair’ is an unnecessary distraction; this again applies to above and below threshold works and has no bearing upon the rates, it affects the total of these.

It is also claimed ‘this work is thereby far less efficient than planned repair work in the contract and hence more costly’. Again, I am not taking issue with this, what I wish to know is ‘how much more costly?’; give me the figures. The impression received is that these response are provide to add quantity not quality to responses, that they are ill-conceived (as they are not relevant) and intended to dissuade and distract.

Every incident is different requiring different resources which are engaged for differing periods. But the issue is ‘rates’ and these are unaffected by the magnitude or difficulty of the incident, it is the total that is affected.

The only relevant comment is ‘a’ ‘Defined cost is in effect the actual costs of an individual repair’. The ‘in effect’ appears less than certain, it either is or it is not. But how are the actual costs arrived at, who holds these, how are they calculated?

Charges are presented for DCP to a Third Party by use of a CBD (cost breakdown document) that displays rates and hours. There is no breakdown of:

Defined costs / DCP RatesTPCO (uplift percentage)

Charges are presented for DCP to a Highways England on occasions by use of a CBD (cost breakdown document) that displays rates, ‘fee’ (percentage uplift) and hours.

The DCP Rate for an item, or ‘defined cost’ is the base rate i.e. pre-profit. It is to be the same to Highways England and a Third Party. The difference in final charge to a TP or HE result from the difference in uplift; to HE, about 7.5%, to a TP about 26% (max.). The difference should therefore be approx. 19.5%.

I have asked for the

The rates you are charged for above threshold DCP works, the schedule of rates used for above and below works

I have written in respect of specific incident, in an Area on a specific date / time. I am seeking the charges presented to you on the dates. I believed my reference to ‘above threshold’ rates conveyed this.

Please supply these. For your ease of reference they are, as per my original request: 20/11/201621/12/2016

I am not asking you to comment upon any allegation, I am seeking information. I have asked your General Counsel twice which exemption(s) are being applied to my request as, to date, I have received a blanket refusal to address requests due to an ongoing enquiry. I anticipate the relevant exemption being conveyed.

Please cite the exemption upon which HE is relying

I asked:

Unless there was a schedule of rates to review and consider, what was he commentating upon and how could he reach such a conclusion? It appears I will require all information to which Mr. Reardon was referring, what he reviewed.

Where is the information Mr Reardon reviewed

I asked that the review consider how the process (whatever this is) applies to charging on a case by case basis, without a pricing schedule The reply is ‘An assessment is made based on each individual claim’ . This is unhelpful:

How is an assessment made?

I asked ‘To what was the contractor objecting unless a schedule exists’. He responded:

The contract contains a Pricing Schedule which the contractors and Highways England consider is exempt from disclosure under section 43 of the FOIA as it contains commercially sensitive information.

The Pricing Schedule contains information that contractors use to prepare their tender submissions. The rates in the Pricing Schedule are then used throughout the duration of the contract but not in relation to third party claims.

The DCP Rate schedule is not ‘commercially sensitive’. Requests have been presented clearly, unequivocally, in respect of DCP Rates. You and your contractor have deemed these DCP Rates to be commercially sensitive ergo they exist. It is these I am seeking. As above, I do not want, nor have I ever sought, ASC rates for pre-planned works – as HE is aware from the statement they made, supported by exhibits, identifying 57 requests/reviews.


12/06/2019, 10:01
Subject: RE: Internal Review reference: 770,202

Your e-mail on 10 May 2019 was raised as a new request and allocated to the appropriate team to respond. The response was due on the 10 June 2019, which I gather from your e-mail below has not been met. Please accept my apologies for this and I will chase up with the team about providing a response as soon as possiblle.

Jonathan Drysdale


24/07/2019 To: FOI Advice <FOIAdvice@highwaysengland.co.uk>
Cc: Jonathan.Drysdale @ highwaysengland.co.uk

Please advise the present position with regard to this 10/05/2019 matter in respect of which I was due a response 10/06/2019 and which you were to chase. I do not appear to have heard further form anyone.


25/07/2019 From: FOIAdvice@highwaysengland.co.uk
Sent: 25 July 2019 15:28
Subject: RE: 770,541 / 770541

Please accept my apologies for this. I will chase this up with the team in order to obtain a response as soon as possible.

Kind Regards

Jonathan Drysdale
Freedom of Information Officer (HE)
Information & Technology
Highways England | Piccadilly Gate | Store


10/09/2019 to HE – now @ WhatDoTheyKnow.com

Dear Mr Drysdale,

I refer to our conversation of yesterday and that I have yet to receive the information following my 10/05/2019 request. I refer you to your replies of:

• 12/06/2019 – ‘Again, please accept my apologies regarding the missed 10 June response due date for your 10 May e-mail, I will chase as a matter of urgency.’ and:

• 25/07/ 2019 – ‘Please accept my apologies for this. I will chase this up with the team in order to obtain a response as soon as possible.’

Whilst I thank you for your further apology yesterday and assurance you would chase the matter up with the relevant team (Green Claims), I would appreciate being advised when this will occur, by when I can expect to receive the information.

You appear to believe that an ongoing Tribunal matter means no request need be addressed. I again ask you to explain the exemption upon which you are relying to withhold information – conduct that now appears to be intentional.

Please consider this a request for an internal review.


20/09/2019 – a response was received to the request the detail of which can be found here: FoIA response re Explanation of Defined Cost Calculation