Background – Asset Support Contracts, in particular Ares 9 (Kier Highways) and Area 10 (BBMM). These contacts are being phased out (Area 10 /BBMM concluded 04/2019). The following is sourced from National Highways 23/02/2022.
National Highways (NH) is a government-owned company in charge of operating, maintaining and improving motorways and the major “A” roads network in England, known as the strategic road network (the ”SRN”). It also sets highways standards used for all four UK administrations, through the Design Manual for Roads and Bridges. It was founded as an executive agency and was converted into a government-owned company (Highways England), on 1 April 2015.
NH has a statutory duty, pursuant to s.41 of the Highways Act 1980 to maintain the SRN at public expense.
This road network is divided into numbered areas, and NH procures maintenance and improvement services for each area from contractors. The contracts under which many of these contractors operate are called “Asset Support Contracts” (“ASCs”) . Under the ASCs, contractors are responsible for, inter alia, conducting both:
- planned repairs to the road network; and
- ad hoc repairs to the network where damage has been caused by an accident or other incident.
The latter category of repairs was previously known as “Damage to Crown Property” repairs, but are now known as either “Damage to Strategic Network” repairs, or alternatively “Green Claims”.
The contractors’ role in completing Green Claim repairs includes pursuing claims against the third parties responsible for the damage, or their insurers.
- Where the damage exceeds £10,000, the contractor bills NH for the Green Claim repairs, and NH then claims the cost from the damaging party (“above threshold claims”).
- Where the damage is less than £10,000 the contract claims its repair costs directly from the negligent party and their insurance company (“below threshold claims”).
Asset Support Contracts (ASC) are gradually being phased out and replaced by Asset Delivery (AD) Contracts. The final ASC in Area 9 will be replaced by AD in July 2022. Under AD contracts there is no threshold for claims as all repair work is undertaken by the contractor and charged directly to National Highways who then normally proceed to recover costs from the third party (this is usually a negligent driver and their insurance company).
But the Authority failed to monitor below threshold claims or if they did, they turned a blind eye to their contractor’s abuses; contract non-compliance, and fraudulent conduct.
National Highways looked after themselves; ensured they were charged using the correct rates/prices. However, they let their contractors do as they wished below threshold – drivers, fleets, hauliers or their insurers were charged using very different (higher) rates. £millions were demanded from and paid by Third Parties who likely believed a Government-appointed contractor would present fair, reasonable, market rates and act honestly. In fact, some contractors were permitted to do as they pleased, the environment was one in which state-enabled exaggeration and fraud on an industrial scale flourished.