This is an HTML version of an attachment to the Freedom of Information request 'The Schedule of Damage to Crown Property Rates – Area 10'.

Date: Thu, 25 Apr 2019 06:54:04 +0000
Subject: Re: Internal Review reference: 769,993
From: Mr P Swift <[FOI #555384 email]>
To: FOI Advice <[email address]>

Dear FOI Advice,

Thank you for your reply of 12/04/2019, your request for clarification and the invitation to submit an internal review.

Request for information under the Freedom of Information Act 2000 (FOIA)

I asked to be provided, for Area 10, since the inception of the contract in 2012

the above-threshold (£10,000) rates which you have most recently referred to as a 'Pricing schedule' and/or 'schedule of costs components' but which also have been referred by various employees as:

o DCP ('damage to Crown property') Rates
o Defined Costs
o Nominal Rates
o Base Rates

I anticipate there existing a schedule of rates as these have bene consistently charged above threshold to you by your contractor. At the every least, your contractor holds a set of these rates

1. Please provide all information held by your contractor.

I asked in respect of 'above threshold' claims to Highways England for settlement under the terms of their contractual appointment to undertake such repairs to the public highway.

This question does not refer to a number of different sets of information. I have no interest in the
Asset Support Contract (ASC) rates tendered during the procurement process. I have bene absolutely clear; I am seeking rates relating to DCP, not pre-planned works. Your (continued) reference to ASC Rates and that these rates have been confirmed by the First Tier Tribunal (EA/2018/0104) to be commercially sensitive and therefore under section 43 FOIA will not be disclosed, is unnecessary, hackneyed and appears intended to divert form the real issue; that you are withholding rates I am entitled to by distraction.

DCP ('damage to Crown property') Rates – the ASC contract contains a schedule that is used for DCP rates.

You state Highways England does not hold information in the form of a set of rates that is used for third party claims. I have not asked for this and again question your response.

The recent Information Commissioner’s Office decision may support your our decision to respond under section 1 FOIA that this information is not held. However, this is the subject to Tribunal appeal and is contradicted by your contractor who has:

• Withheld the rates from us, said they will not release the rates i.e. they exists
• Appointed lawyers who have also withheld the rates i.e. they exists
• Informed a Court the rates exist
• Advised the Court that the rates are subsidised by the lump sum they are paid each month. Confirmation of this can be found at:

http://www.englandhighways.co.uk/15-02-2018-derby-county-court-bbmm-for-highways-england/

Whilst you state you do not hold Schedules of DCP rates, in name or function, we and a Judge have been advised otherwise. Indeed, your response to this FoIA has contradicted the subsidy these DCP Rates (the schedule of costs) is said to attract; on the one hand a Court is told the rates you are charged are subsidised by the lump sum payment, on the other you state they are not. I have attached your relevant responses at 3 to 6 inclusive below which should be considered in relation to the Summary Judgement (above) which was provided to me by your contractor in support of their claims.

2. Please explain the contradictions; provide all information in support of the statements being made by you and your contractor

The above Judgement was a claim pursued in the name of Highways England

I accept each incident is treated on its own merits. However, they are treated consistently with regard to pricing

3. Who holds the schedule; you, your contractor or another?

Whoever, please confirm they will be asked to provide a copy as clearly this information is held for your benefit, on your behalf, is pertinent to what you pay form the public purse and you require said schedule to determine the accuracy of invoices presented. It also appears you wish to possess the copy, expect to possess same

I have only asked about Area 10, the prevailing contract in that Area in line with the relevant contract.

You state:
Defined Costs - The term ‘Defined Cost’ refers to a definition in the contract, the contract does not contain a schedule of Defined Costs. The Defined Cost is calculated in accordance with the definition. This is based on actual costs incurred by the supplier and there is not pre-set schedule of defined cost, or other schedule that is used.

Obviously, the actual defined cost for incident response and repair work resulting from damage by third parties is calculated after the event depending on the work that needs doing. However, this is calculated in accordance with the defined cost definition (which you cite) which references

a) the schedule of costs components,
b) which specifies specific costs the contractor is allowed to include and
c) the cost of them.

4. I ask to be provided the above

It is noticeable recent responses from Highways England make no reference to ‘c’ above

Also, when responding, please:

5. Explain the calculation you believe is occurring

It is apparent you are of the impression ‘defined costs’ is a term, as opposed to a figure. I am asking to be provided the calculation behind the scenes, that results in the
Sums you are (were) charged. I remind you, these are seen to be constant in claims presented to us i.e. they do not fluctuate form day to day

The term ‘DCP Rates’ is simple, clear and concise; rates for damage to Crown property. It matters not whether they are a formal term, the fact is they plainly describe the rates I am seeking. In response to your request for the source of the term, this was Patrick Carney of Highways England. The terms fits the charges and the point is, they are not, as Highways England have responded in respect of 175 request reviews between 2013 and 07/2018, commercially sensitive. Highways england have repeatedly (175 times) withheld DCP rates over a number of areas; further evidence they clearly exist.

I will await the responses to the above before deciding whether to present to the ICO. Possibly the additional information (above) will enable a reconsideration of what is being conveyed to you, the serious contradictions and illogical nature of the situation.

Yours sincerely

P. Swift

Previous responses re lump-sum:

3. Are rates for incidents where a recovery against a Third Party (driver, fleet or insurer) is identified in any way subsidized or reduced by the lump-sum payment BBMM receives?

a. If yes, what is that subsidy / reduction, how is this calculated and applied.

Third Party Claims are covered in part by the Lump Sum Duties. Balfour Beatty Mott MacDonald (BBMM) receive a contribution towards elements of its running cost through the Lump Sum. The value of the Lump Sum was tendered as part of BBMM bid for Area 10 based on a number of assumptions including the number of third party claims with an unknown culprit.

5. Are rates for Third Part or culprit -unidentified incidents in any way subsidised / reduced by the lump-sum payment BBMM receives?

a. If yes, what is the subsidy / reduction, how is this calculated and applied.

The Lump Sum, as tendered by BBMM during the procurement process, includes an assessment for incidents where a culprit is not identified. A subsidy/reduction is not applied.

6. Is any aspect of emergency incident attendance or repair covered by the lump-sum payment and if so?

a. what aspects

An element of emergency incident attendance and repair is covered by the Lump Sum in respect of incidents caused by unknown culprits.

If you are unhappy with the way we have handled your request you may ask for an internal review within 2 months of the date of this response for Freedom of Information requests and within 40 days for Environmental Information Regulations requests.

-----Original Message-----

Dear Mr Swift

 

Please find attached the internal review reference: 769,993 of your
Freedom of Information request reference: 769,305.

 

Yours Sincerely

 

Jonathan Drysdale

Freedom of Information Officer (HE)

Information & Technology

Highways England | Piccadilly Gate | Store Street | Manchester | M1 2WD

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