Whilst the proposition HE do not have agreed rates of repair for DCP (damage to Crown property) with their contractors is absurd and embarrassing, this is the stance the Public Authority have taken:
‘we cannot reconcile any invoices on ASC contracts … but we’ve paid them … since 2012!‘ (08/04/2019 – statements here).
But is such a claim preferable to an admission ‘we do have DCP rates’?
These DCP rates, otherwise referred to as ‘defined costs’ are base rates (before profit cost) to be charged identically to both the Authority and Third Parties (drivers, fleets, hauliers and insurers). In some contracts (ASC – asset support contracts) there is a long hidden equation designed to protect Third Parties from being exploited, overcharged – ‘Appendix A to Annex 23‘ which states a Third Party is to be charged ‘no more than’:
- ‘defined costs’ £) + Overhead (%) = maximum charge(£)
The Overhead will not exceed 25.29% (Area 9). But to complete the equation you need ‘defined costs’. Furthermore, as defined costs are the same to Highway England and Third Parties, if a TP cannot complete the equation, neither can HE!
Kier handle 5,4000 claim per annum … an awful lot of rubber-stamping invoices for payment by the Authority!
Since 07/2014, Highways England kept ‘Appendix A’ secret. They bleat about the amount of correspondence we send, the calls we make, but they did not once respond to the effect ‘there’s a simple formula by which to work out the MAXIMUM a Third Party should be charged‘ nor did they ever deny a schedule of DCP rates exist. Instead, they said ‘you cannot have the rates’.
Kier Highways did not mention Appendix A in emails, during calls, in their Court statements and not a word in their ‘insurers guide’. Is it coincidence that:
- Kier failed to comply with the process from day-one and
- Highway England (apparently) failed to identify or prevent the conduct – even when specifically tasked with reviewing Kier 01/2016 following a complaint.
- The head of the Authority’s Green Claims to whom we personally evidenced the issue 21/06/2017, failed to act despite involving
- KPMG whose ‘Project Verde‘ seemingly took over a year to report upon what we conveyed in less than an hour, appear to have reported ineffectively resulting in
- HE’s CEO responding 09/2018 that the inquiry was concluded but then … no it is not!
But does a schedule of rates (defined costs) exist? The Public Authority how says ‘no.’ But … Highways England state they have received 175 Freedom of information requests or reviews for rate-related information between 2013 and 07/2018 – 118 of these from others. To not one of these did they say ‘do not exist therefore, not held‘. To learn more about the ‘mythical rates’ click here.
Then, 11/2018, having sought to protect the rates citing ‘commercial sensitivity’ and or labelled request form those who persisted ‘vexatious’ for 5 years, a Highways England manager told a Tribunal ‘DCP Rates’ are NOT commercially sensitive‘. The next and subsequent FoI requests for rates were met with the ‘do not exist’ responses.
Subsequent exchanges about rates:
- 12/03/2019 – to Patrick Carney. Questions re DCP Rates
- 25/03/2019 – to Highways England re DCP Rates
- 27/03/2019 – to Jim & Tim @ HE. New rates to be issued 04/2019 & Kier issued no invoices in Area 9 since 01/2019
- 16/04/2019 – to Jim O’Sullivan. Questions re DCP rates
17/04/2019 – Tim Reardon @ Highways England replies to Mr Carney and 16/04/2019 Jim O’Sullivan emails
- 23/04/2019 – further issues & questions to Jim
- 26/04/2019 – there are rates in Area 6&8
- 26/04/2018 – to HE, an example of overstatement, non contract compliance in Areas 6&8
- 26/04/2019 – Highways England consider requests (above) as falling under FoIA and refuse all. To the ICO
- 6 & 8 – as of 01/04/2017 managed by Kier Highways, formerly managed by Amey
- 9 – time line
- 10 –
Claim Corrections & Obstruction:
- 06/2017 – Area 9 investigation concluded, not concluded .. concluded?
- 04/2018, we wrote about Highways England’s obstruction of FoIA requests
- 05/2018, we wrote of rubber-stamping invoices for payment – 3 Prices for the same repair
- 25/02/2019 – FoIA request ‘If Defined Costs are Mythical what was Reviewed?’
Currently with a Tribunal:
25/07/2017 FOI Advice Highways England contractors Defined Costs
I ask to be provided from 01/07/2014 in respect of Areas with Appendix A to Annex 23 and damage to Crown Property:
- The Defined costs, those referred to in Appendix A to Annex 23 of the contract
- The Third party claims overhead
- all information that relates to how the above are to be applied to claims
- confirmation that the charge to Highways England comprises:
- the defined cost (at ’12 above)
- a fee uplift
The full request and response can be read here.
The above request will apply to Areas 9, 6&8 … it appears Highways England have failed to explain to the ICO, their Lawyers (Government Legal Department), their Counsel or the Tribunal that the rates being sought do not exist … are mythical. Because, pre 11/2018, they were not?