AssetCo contract

Richard,

Thank you for your request for information which we received on 2 November 2010. Your request will be considered under the provisions of the Freedom of Information Act (FOIA) 2000, and as such, I will respond to you promptly and in any case by no later than within 20 working days.

Nsekanji Pelekamoyo
Knowledge Manager
London Fire Brigade
169 Union Street, London SE1 0LL
T: 020 8555 1200 ext 30357
E: [email address]
Visit our website at www.london-fire.gov.uk

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Mr Lovegood

I am writing in response to your request for information which we received
on 2 November 2010. Your request was considered under the provisions of
the Freedom of Information Act (FOIA) and I have dealt with each part of
your request in turn below:

' ...that you have a £9m contract with AssetCo for the provision of fire
protection services during events such as the current strike action. I
have the following questions:'

'1. Is it correct that the overall contract value is in the region of
£9m?'

I refer you to the attached London Fire and Emergency Planning Authority
report, entitled: Business continuity arrangements - Contracted Emergency
Fire Crew Capability FEP1370. Information redacted on paragraphs 1, 8, 14,
24, 25, 26, 27, 29, 40, 54 and Appendices 1, 3, 4, 5 and 6 are exempt
under section 43 FOIA¹ * Commercial interests and section 41 FOIA² *
Information provided in confidence.

Section 43 * Commercial Interests

Under the FOIA, the commercial interest exemption (s.43) states that:

(1) Information is exempt information if it constitutes a trade secret or

(2) Information is exempt information if its disclosure under this Act
would, or would be likely to, prejudice the commercial interests of any
person (including the public authority holding it).

The tender proposals received contain special commercial formulas and
pricing which are exempt under section 43(1). The proposals detail
commercial know-how, work methodology and project management structures
and the owners of this information limit dissemination or at least do not
encourage or permit its widespread publication. If this information was
disclosed to competitors, there would be a real and significant harm to
the owner of the trade secret.

The tender proposals also fall under section 43(2) because public
disclosure would, or would be likely to prejudice the commercial interests
of the firms in question, in particular their ability to successfully
engage in a competitive commercial market. By disclosure of the tender
proposals to the public, competing firms would be permitted to gain access
to strategic commercial and business information which has been provided
in confidence to the London Fire and Emergency Planning Authority
(LFEPA). This would give an unfair advantage to competitors in submitting
and negotiating future tenders with LFEPA or other public bodies.

With regard to LFEPA*s own commercial interests, we consider that
disclosure of proposals would, or would be likely to prejudice LFEPA*s
business reputation and confidence that suppliers, contracting parties and
investors may have in it. This would have a detrimental impact and
threaten LFEPA*s ability to successfully participate in commercial
activity, in particular the ability to negotiate best value terms of
contract in the best interests of LFEPA and the public.

Commercial Interests * Public Interest Test

The information you have requested also requires careful consideration and
application of the *public interest* test, this is to consider whether the
public interest in disclosing the information outweighs the Authority*s
interest in withholding it.

I have set out my public interest considerations as follows:

o There is a strong likelihood that commercial prejudice to LFEPA and
the firms concerned would materialise if the tender proposals were
disclosed to the public.
o The degree of prejudice suffered by the firms is likely to be
substantial and over a considerable period of time.
o Public disclosure of the information would undermine the ability of
LFEPA to perform its statutory functions and, in particular, to secure
best value.

On this basis, I believe that the Authority*s interest in withholding this
information outweighs the public interest in disclosing it.

Section 41 * Information Provided In Confidence

It is also my view that under FOIA, the information provided in confidence
exemption (s.41) applies to the tender proposals. Section 41 states that
(1) information is exempt information if:

(a) it was obtained by the public authority from any other person
(including another public authority), and

(b) the disclosure of the information to the public (otherwise than under
this Act) by the public authority holding it would constitute a breach of
confidence actionable by that or any other person.

The proposals have been received by LFEPA as a result of a competitive
tender process which carries with it a *quality of confidence* to the
firms concerned. Furthermore, the information has been imparted in
circumstances importing an obligation of confidence and disclosure of this
information would be detrimental to the firms wishing to keep the
information confidential. Disclosure of the information would also
constitute a breach of confidence which may result in substantial harm for
the relevant firm (commercial) as well as exposing LFEPA to common law
action for the breach. Therefore, information falling under the section 41
exemption has been withheld. Section 41 is an *absolute* exemption which
means that there is no public interest test to be applied.

You will also find that information on paragraphs 32, 34, 38, 42, 43, 45,
46, 47, 48, 49, 50, 51, 52, 53 and Appendix 2 have been redacted from
disclosure and the exemption which applies is section 42 FOIA³ * Legal
professional privilege.

Section 42 * Legal professional privilege

Under the FOIA, the legal professional privilege exemption (s.42) states
that:

o Information in respect of which a claim to legal professional
privilege to confidentiality of communications could be maintained in
legal proceedings is exempt information.

Section 42 FOIA also requires us to consider the public interest test and
I have set out my considerations below:

o It is in the public interest that the decisions taken by the LFEPA are
taken in a fully informed legal context. The fact that the Authority
has considered legal implications arising is in the public interest.
o The legal adviser needs to be able to present the full picture to his
or her client (LFEPA) which includes not only arguments in support of
his or her final conclusions but also the arguments that may be made
against them. This also means that legal advice will often set out the
perceived weaknesses of the LFEPA*s position. Without such
comprehensive advice the quality of LFEPA*s decision making would be
much reduced because it would not be fully informed and this would be
contrary to the public interest.
o Disclosure of legal advice has high potential to prejudice the LFEPA*s
ability to defend its legal interests, both directly, by unfairly
exposing its legal position to challenge, and indirectly by
diminishing the reliance it can place on the advice having been fully
considered and presented without fear or favour. Neither of these is
in public interest. The former could result in serious consequential
loss or at least waste of resources in defending unnecessary
challenges. The latter may result in poorer decision making because
decisions themselves may not be taken on a fully informed basis.

I conclude from the above that the public interest in withholding this
information outweighs the public interest in disclosing it. In accordance
with the FOIA, this letter acts as a Public Interest Refusal Notice in
relation to some of the information you have requested. Please note
that some additional information is also available on the London Fire
[1]website .

'2. Is this a fixed price that covers all services that may be necessary
over the contract period, or are there additional usage charges payable
when you call on AssetCo's services? If there are additional charges, how
(in general terms) are they calculated, and (roughly) how much are they? I
don't need 'chapter and verse' on this question - just a couple of
sentences of explanation will be fine.'

I refer you to the attached London Fire and Emergency Planning Authority
report, entitled: Business continuity arrangements - Contracted Emergency
Fire Crew Capability FEP1370.

'3. Do the AssetCo contract(s) contain any provisions specifying how
well-trained the AssetCo firefighters have to be (either generally or for
particular types of firefighter), and/or the scope of services AssetCo
will provide? If so, please summarise and/or provide copies of these
provisions.'

The attached document *Development Standards for EFCC*, details the
required scope of the personal skills, knowledge and understanding to be
achieved by the EFCC personnel.

'4. How (in general terms) do these requirements differ from the training
that LFB firefigters receive and the scope of services that the LFB
normally provides? A summary and/or any documentation that you have
already produced to analyse these differences will be fine.'

The attached document *Development Standards for EFCC*, details the
required scope of the personal skills, knowledge and understanding to be
achieved by the EFCC personnel.

'5. Are there any fire-fighting and rescue services that the LFB normally
provides to Londoners that are not available through AssetCo? One example
might be fire fighting and/or rescues from buildings above a certain
height. Again, a high-level description will be sufficient here.'

The contract for the provision of Emergency Fire Crew Capability (EFCC)
Services is designed to deliver a contingency level of service, which
neither replaces nor replicates that delivered day to day by the London
Fire Brigade*s full time Firefighters. EFCC crew members are therefore not
trained to the same level as the London Fire Brigade*s full time
Firefighters. For more information, please refer to the information
readily available on the London Fire website:
[2]http://www.london-fire.gov.uk/news/NewsR...

'6. Do AssetCo use their own equipment and fire-fighting appliances, or do
they use LFB equipment?'

Please refer to the information readily available on the London Fire
website: [3]http://www.london-fire.gov.uk/news/NewsR...

I trust this concludes your request. However, if you have any queries,
please contact me.

If you believe that your rights have not been met under the FOIA, you have
the right to ask the Authority to review our response to your request for
information. If you wish to do so, please set out in writing your reasons
for asking and address them to David Wyatt, Head of Information Management
at the above address details or alternatively at:
[4][email address] .
You also have the right to ask the Information Commissioner for a decision
as to whether the Authority has dealt with your request in accordance with
the requirements of the Freedom of Information Act and/or Data Protection
Act. If you wish to do this, you must first ask the Authority to review
its decision; and then you must apply promptly to the Information
Commissioner at Wycliffe House, Water Lane, Wilmslow, Cheshire, SK9 5AF.

Thank you for your interest in the London Fire Brigade

Kind regards

Aidan Bartley

Information Management

Strategy & Performance Department

London Fire Brigade

Direct T 020 8555 1200 ext 30086

Direct F 020 7960 3617

E [5][email address]

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