Dear Sir,

Thank you or your email.
1. I am seeking the schedule of Damage to Crown Property (DCP) rates for above threshold works held and used by BBMM when pricing DCP matters in Area 10. The schedule of rates was used in the ASC pre-04/2019 when the contract concluded. This is the schedule of DCP Rates by which BBMM charge / charged Highways England where incident costs exceed £10,000, a schedule of rates that are apparently subsidised by the lump-sum payment.
2. Please ensure the date the schedule was produced and the period to which it relates is provided. It would assist to be advised when and how often the schedule is revised.
3. The subsidy should also be explained, to the extent that I am able to reverse engineer the charges and establish the actual rate i.e. cost pre-subsidy.
BBMM clearly possess the schedule; it is used to bill Highways England. BBMM has declined to provide the schedule in the course of ordinary business but has referred to it in Court. I understand you are seeking a copy of HH Godsmark’s judgement in which the schedule is specifically referenced. A copy can be found here: http://www.englandhighways.co.uk/15-02-2...

Please also provide all information relating to:
A. your attempts to secure the information from BBMM to date; approaches and responses on the subject fo the schedule - what is held, how and seeking a copy of them.
B. Investigation of the rates having been stated to exist
C. Enquires of the statements (to HH Godsmark) that the rates are subsidised
D. The subsidy; whether this does, in fact, apply - this should be confirmed by the response to '3' above
E. Please also provide BBMM’s responsibilities under the Act; their obligations, that Balfour Beatty is not permitted contractually to respond substantively on such requests without client instruction and the instructions sought/provided to date.

Yours faithfully,

P. Swift

Dear Mr Swift,

Thank you for your e-mail.

The ICO guidance set’s out the following (taken from their website) regarding external companies and the Act –

‘Where you subcontract public services to an external company, that company may then hold information on your behalf, depending on the type of information and your contract with them. Some of the information held by the external company may be covered by the Act if you receive a freedom of information request. The company does not have to answer any requests for information it receives, but it would be good practice for them to forward the requests to you. The same applies where you receive services under a contract, for example, if you consult external solicitors.

It’s important to establish an objective reason for deciding whether certain information is held by a contractor on behalf of a public authority. The primary source that we would consider is the contract between the authority and the contractor. As this defines the relationship between, and the responsibilities of, the two parties, it provides an objective, evidence-based approach to resolving the issue.

Setting out responsibilities in handling FOIA requests
Outsourcing contracts commonly include clauses setting out the procedures to be followed when a FOIA request is received. They typically include the following elements:
• The contractor recognises that the public authority is subject to FOIA.
• The contractor undertakes to transfer any FOIA request it receives to the authority.
• The authority will decide at its own discretion what information will be disclosed or withheld in response to the FOIA request.
• The authority will consult with the contractor and take its views into account, but is not bound by them.
• The contractor will assist the authority in answering the request and provide all the information that the authority reasonably needs.
• Information may be designated as potentially exempt, but on the understanding that this is indicative and does not guarantee it will not be released.’

In relation to your second question we first received the requests you made to BBMM via your e-mail sent 19 July 2019 (below) but BBMM sent an e-mail on 22 July 2019 also making Highways England aware on your requests. For clarity on our behalf, due to the flow of e-mails below, please can you clearly and succinctly set out what questions you would like answering under the FoIA.

Kind Regards

Jonathan Drysdale
Freedom of Information Officer (HE)
Information & Technology
Highways England | Piccadilly Gate | Store Street | Manchester | M1 2WD
Web: http://highwaysengland.co.uk

Sent: 03 July 2019 12:06
Subject: RE: Claims & CECA Rates

Dear John,

Thank you – are you saying that BBMM are not responsible for addressing FoIA requests under the contract?

The difficulty I am experiencing is that the rates to which BBMM refer, those above threshold and conveyed to Judge Godsmark, have not been located by Highways England. Hence, as I do not possess them, I have come directly to yourselves.

Who holds the rates? To whom can I direct the Authority?

Why are BBMM not prepared to release these rates given there is no commercial sensitivity attached to them?

From: <BalfourBeatty.com>
Sent: 03 July 2019 11:59
Subject: RE: Claims & CECA Rates

I have reviewed your email of the 26th June and request of the 4th June with our Group Legal team.

I am advised that requests under the Freedom of Information Act 2000 (”FOIA”) need to be made to public authorities or relevant organisations who are subject to the FOIA. Further, Balfour Beatty are not permitted contractually to respond substantively on such requests without client instruction.

If you want to pursue an FOIA request you need to make this request direct with Highways England. However, as you have stated that you have already submitted an FOIA request re the same information direct to Highways England on 23rd February 2019 and Highways England have responded to that request on 12th April 2019, the request submitted has formally been addressed by Highways England and if you wish to challenge that decision you would need to take that up directly with Highways England.

In terms of your interpretation of the judgement that you reference and the substantive underlying claim in relation to your client you would need to seek your own independent legal advice on those matters.

Accordingly, we have been reasonable in reviewing your requests but are not in a position to assist any further with your inquiries on this matter.

Sent: 26 June 2019 18:01
@bbmmjv.com'
Subject: RE: Claims & CECA Rates

I do not appear to have received a response to my emails below.

In the event BBMM is, under the contract, subject to the Freedom of Information Act, the below should be treated as an FoIA request. If not, the request should be presented to HE to be processed. The Act allows 20 working days for provision of the information.

Sent: 04 June 2019 20:13
To: BalfourBeatty.com
Subject: FW: Claims & CECA Rates

I have been seeking information in respect of DCP rates for over a year.

With regard to the draft judgement you provided, Judge Godsmark was informed that the rates BBMM use for Highways England above-threshold are subsidized i.e. they were not a like-for-like comparison as they were reduced by the monthly lump-sum payment BBMM received from Highways England. It is evident the Judge was looking for a similar, comparable measure to assess CECA used by BBMM to charge Third Parties.

I write not to present any schedule as ‘best’ or appropriate but to address the contradictions. I also wish to be able to provide another set of rates; what better than those for the Area? I understand matters are still presented to the Courts, that Judge Godsmark’s judgement is being cited, relied upon. However, I am concerned about the information presented to the Judge which appears inaccurate. I would therefore appreciate:

1. BBMM’s comments and whether I have misunderstood any aspect
2. A copy of the above threshold rates – as these are NOT commercially sensitive, why withhold them?
3. If subsidised, the calculation that causes the reduction.

Sent: 23 April 2019 08:55
To: (BalfourBeatty.com)
Subject: RE: Claims & CECA Rates

We have spoken about the lump-sum payment BBMM received each month from Highways England and its effect upon the over-threshold DCP rates to Highways England. You appeared to be of the impression these rates were subsidised by the monthly payment from Highways England. By reference to the Judgement (attached) the Court was influenced by your witnesses assertions, the Judge writing:

In order to reject the use of CECA Dayworks rates in pricing this repair I would have to have some alternative measure to apply.
The only one suggested is the £10,000 + repair regime rates and I have already accepted that they are artificial in that they are partly subsidised by the lump sum

To date, I have unsuccessfully sought to explore this directly with BBMM, my requests have been refused. I have therefore progressed this by use of FoI and the recent response is attached.

You will note, as I suggested, the lump-sum payment contributes to DCP matters but only insofar as they relate to UNIDENTIFIED culprits:

‘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.’

The nature of our involvement, that there are claims, means a culprit must be identified i.e. these are not matters in respect of which the lump-sum has an effect. It therefore appears the Courts have been misled insofar as above-threshold rates are concerned, that the lump-sum payment has no bearing upon them i.e. they are an alternative measure.

I would appreciate:

1. BBMM’s comments in respect of the above and whether I have misunderstood any aspect
2. A copy of the above threshold rates – as these are NOT commercially sensitive, why withhold them?

If you could confirm the latter will be supplied asap, this would be helpful.

Yours sincerely

Philip

Highways England, Highways England Company Limited

This is an automated response:

 

Thank you for your email to Highways England.

 

If you’re reporting a real time issue which requires immediate attention
please call the Customer Contact Centre on 0300 123 5000. 

 

A map of the roads for which we are responsible can be found here
[1]https://assets.publishing.service.gov.uk....
If the road you’re interested in isn’t on this map it will fall under the
jurisdiction of the local authority.  You can find details of local
authorities using the search facility on the gov.uk website
at: [2]https://www.gov.uk/find-your-local-council

 

If your email does relate to an issue on Highways England's network it
will be passed to the relevant team within Highways England and they will
respond to you within a maximum of 15 working days.

 

If you’ve made a request under the Freedom of Information Act we will
respond to you within a maximum of 20 working days. Your request will be
dealt with in line with government guidelines:
[3]https://www.gov.uk/make-a-freedom-of-inf...

 

Please be advised that emails may be monitored for training and quality
assurance purposes.

 

To help us improve our service please click [4]here to complete a short
survey.

 

Kind regards

 

Highways England Customer Contact Centre.

This email may contain information which is confidential and is intended
only for use of the recipient/s named above. If you are not an intended
recipient, you are hereby notified that any copying, distribution,
disclosure, reliance upon or other use of the contents of this email is
strictly prohibited. If you have received this email in error, please
notify the sender and destroy it.

 

Highways England Company Limited | General enquiries: 0300 123 5000
|National Traffic Operations Centre, 3 Ridgeway, Quinton Business Park,
Birmingham B32 1AF |
[5]https://www.gov.uk/government/organisati... |
[6][Highways England request email]

 

Registered in England and Wales no 9346363 | Registered Office: Bridge
House, 1 Walnut Tree Close, Guildford, Surrey GU1 4LZ 

 

Consider the environment. Please don't print this e-mail unless you really
need to.

References

Visible links
1. https://assets.publishing.service.gov.uk...
2. https://www.gov.uk/find-your-local-council
https://www.gov.uk/find-your-local-council
3. https://www.gov.uk/make-a-freedom-of-inf...
https://www.gov.uk/make-a-freedom-of-inf...
4. https://www.surveymonkey.co.uk/r/HECCC
5. https://www.gov.uk/government/organisati...
6. mailto:[Highways England request email]

Dear Highways England Company Limited,

Please pass this on to the person who conducts Freedom of Information reviews.

I am writing to request an internal review of Highways England Company Limited's handling of my FOI request 'Area 10 BBMM Above Threshold Rates & Sudsidy'.

My request was as follows:

1. I am seeking the schedule of Damage to Crown Property (DCP) rates for above threshold works held and used by BBMM when pricing DCP matters in Area 10. The schedule of rates was used in the ASC pre-04/2019 when the contract concluded. This is the schedule of DCP Rates by which BBMM charge / charged Highways England where incident costs exceed £10,000, a schedule of rates that are apparently subsidised by the lump-sum payment.
2. Please ensure the date the schedule was produced and the period to which it relates is provided. It would assist to be advised when and how often the schedule is revised.
3. The subsidy should also be explained, to the extent that I am able to reverse engineer the charges and establish the actual rate i.e. cost pre-subsidy.
BBMM clearly possess the schedule; it is used to bill Highways England. BBMM has declined to provide the schedule in the course of ordinary business but has referred to it in Court. I understand you are seeking a copy of HH Godsmark’s judgement in which the schedule is specifically referenced. A copy can be found here: http://www.englandhighways.co.uk/15-02-2...

Please also provide all information relating to:

A. your attempts to secure the information from BBMM to date; approaches and responses on the subject fo the schedule - what is held, how and seeking a copy of them.
B. Investigation of the rates having been stated to exist
C. Enquires of the statements (to HH Godsmark) that the rates are subsidised
D. The subsidy; whether this does, in fact, apply - this should be confirmed by the response to '3' above
E. Please also provide BBMM’s responsibilities under the Act; their obligations, that Balfour Beatty is not permitted contractually to respond substantively on such requests without client instruction and the instructions sought/provided to date.

The request followed an invitation From Highways England to 'clearly and succinctly set out what questions you would like answering under the FoIA' which I believe the request satisfies.

I have not received a response despite 20 working days having expired.

A full history of my FOI request and all correspondence is available on the Internet at this address: https://www.whatdotheyknow.com/request/a...

Yours faithfully,

Mr P Swift

Highways England, Highways England Company Limited

This is an automated response:

 

Thank you for your email to Highways England.

 

If you’re reporting a real time issue which requires immediate attention
please call the Customer Contact Centre on 0300 123 5000. 

 

A map of the roads for which we are responsible can be found here
[1]https://assets.publishing.service.gov.uk....
If the road you’re interested in isn’t on this map it will fall under the
jurisdiction of the local authority.  You can find details of local
authorities using the search facility on the gov.uk website
at: [2]https://www.gov.uk/find-your-local-council

 

If your email does relate to an issue on Highways England's network it
will be passed to the relevant team within Highways England and they will
respond to you within a maximum of 15 working days.

 

If you’ve made a request under the Freedom of Information Act we will
respond to you within a maximum of 20 working days. Your request will be
dealt with in line with government guidelines:
[3]https://www.gov.uk/make-a-freedom-of-inf...

 

Please be advised that emails may be monitored for training and quality
assurance purposes.

 

To help us improve our service please click [4]here to complete a short
survey.

 

Kind regards

 

Highways England Customer Contact Centre.

This email may contain information which is confidential and is intended
only for use of the recipient/s named above. If you are not an intended
recipient, you are hereby notified that any copying, distribution,
disclosure, reliance upon or other use of the contents of this email is
strictly prohibited. If you have received this email in error, please
notify the sender and destroy it.

 

Highways England Company Limited | General enquiries: 0300 123 5000
|National Traffic Operations Centre, 3 Ridgeway, Quinton Business Park,
Birmingham B32 1AF |
[5]https://www.gov.uk/government/organisati... |
[6][Highways England request email]

 

Registered in England and Wales no 9346363 | Registered Office: Bridge
House, 1 Walnut Tree Close, Guildford, Surrey GU1 4LZ 

 

Consider the environment. Please don't print this e-mail unless you really
need to.

References

Visible links
1. https://assets.publishing.service.gov.uk...
2. https://www.gov.uk/find-your-local-council
https://www.gov.uk/find-your-local-council
3. https://www.gov.uk/make-a-freedom-of-inf...
https://www.gov.uk/make-a-freedom-of-inf...
4. https://www.surveymonkey.co.uk/r/HECCC
5. https://www.gov.uk/government/organisati...
6. mailto:[Highways England request email]

Dear Highways England Company Limited,

Please advise by when I can expect to receive your reference for this request, invited by your office, and the information I have sought

Yours faithfully,

Mr P Swift

Highways England, Highways England Company Limited

This is an automated response:

 

Thank you for your email to Highways England.

 

If you’re reporting a real time issue which requires immediate attention
please call the Customer Contact Centre on 0300 123 5000. 

 

A map of the roads for which we are responsible can be found here
[1]https://assets.publishing.service.gov.uk....
If the road you’re interested in isn’t on this map it will fall under the
jurisdiction of the local authority.  You can find details of local
authorities using the search facility on the gov.uk website
at: [2]https://www.gov.uk/find-your-local-council

 

If your email does relate to an issue on Highways England's network it
will be passed to the relevant team within Highways England and they will
respond to you within a maximum of 15 working days.

 

If you’ve made a request under the Freedom of Information Act we will
respond to you within a maximum of 20 working days. Your request will be
dealt with in line with government guidelines:
[3]https://www.gov.uk/make-a-freedom-of-inf...

 

Please be advised that emails may be monitored for training and quality
assurance purposes.

 

To help us improve our service please click [4]here to complete a short
survey.

 

Kind regards

 

Highways England Customer Contact Centre.

This email may contain information which is confidential and is intended
only for use of the recipient/s named above. If you are not an intended
recipient, you are hereby notified that any copying, distribution,
disclosure, reliance upon or other use of the contents of this email is
strictly prohibited. If you have received this email in error, please
notify the sender and destroy it.

 

Highways England Company Limited | General enquiries: 0300 123 5000
|National Traffic Operations Centre, 3 Ridgeway, Quinton Business Park,
Birmingham B32 1AF |
[5]https://www.gov.uk/government/organisati... |
[6][Highways England request email]

 

Registered in England and Wales no 9346363 | Registered Office: Bridge
House, 1 Walnut Tree Close, Guildford, Surrey GU1 4LZ 

 

Consider the environment. Please don't print this e-mail unless you really
need to.

References

Visible links
1. https://assets.publishing.service.gov.uk...
2. https://www.gov.uk/find-your-local-council
https://www.gov.uk/find-your-local-council
3. https://www.gov.uk/make-a-freedom-of-inf...
https://www.gov.uk/make-a-freedom-of-inf...
4. https://www.surveymonkey.co.uk/r/HECCC
5. https://www.gov.uk/government/organisati...
6. mailto:[Highways England request email]

Dear Highways England Company Limited,

Please advise by when I can expect to receive your reference for this request, invited by your office, and the internal review requested 22/08/2019

Yours faithfully,

Mr P Swift

Highways England, Highways England Company Limited

This is an automated response:

 

Thank you for your email to Highways England.

 

If you’re reporting a real time issue which requires immediate attention
please call the Customer Contact Centre on 0300 123 5000. 

 

A map of the roads for which we are responsible can be found here
[1]https://assets.publishing.service.gov.uk....
If the road you’re interested in isn’t on this map it will fall under the
jurisdiction of the local authority.  You can find details of local
authorities using the search facility on the gov.uk website
at: [2]https://www.gov.uk/find-your-local-council

 

If your email does relate to an issue on Highways England's network it
will be passed to the relevant team within Highways England and they will
respond to you within a maximum of 15 working days.

 

If you’ve made a request under the Freedom of Information Act we will
respond to you within a maximum of 20 working days. Your request will be
dealt with in line with government guidelines:
[3]https://www.gov.uk/make-a-freedom-of-inf...

 

Please be advised that emails may be monitored for training and quality
assurance purposes.

 

To help us improve our service please click [4]here to complete a short
survey.

 

Kind regards

 

Highways England Customer Contact Centre.

This email may contain information which is confidential and is intended
only for use of the recipient/s named above. If you are not an intended
recipient, you are hereby notified that any copying, distribution,
disclosure, reliance upon or other use of the contents of this email is
strictly prohibited. If you have received this email in error, please
notify the sender and destroy it.

 

Highways England Company Limited | General enquiries: 0300 123 5000
|National Traffic Operations Centre, 3 Ridgeway, Quinton Business Park,
Birmingham B32 1AF |
[5]https://www.gov.uk/government/organisati... |
[6][Highways England request email]

 

Registered in England and Wales no 9346363 | Registered Office: Bridge
House, 1 Walnut Tree Close, Guildford, Surrey GU1 4LZ 

 

Consider the environment. Please don't print this e-mail unless you really
need to.

References

Visible links
1. https://assets.publishing.service.gov.uk...
2. https://www.gov.uk/find-your-local-council
https://www.gov.uk/find-your-local-council
3. https://www.gov.uk/make-a-freedom-of-inf...
https://www.gov.uk/make-a-freedom-of-inf...
4. https://www.surveymonkey.co.uk/r/HECCC
5. https://www.gov.uk/government/organisati...
6. mailto:[Highways England request email]

FOI Advice, Highways England Company Limited

1 Attachment

Dear Mr Swift,

 

Please find attached Highways England response to your 23 July 2019
request and subsequent follow-up with the ICO ref. FS50875792. Please
accept our apologies for the delay in providing this response.

 

Kind Regards

 
Highways England FOI Team 
Web: [1]http://highwaysengland.co.uk

 

This email may contain information which is confidential and is intended
only for use of the recipient/s named above. If you are not an intended
recipient, you are hereby notified that any copying, distribution,
disclosure, reliance upon or other use of the contents of this email is
strictly prohibited. If you have received this email in error, please
notify the sender and destroy it.

 

Highways England Company Limited | General enquiries: 0300 123 5000
|National Traffic Operations Centre, 3 Ridgeway, Quinton Business Park,
Birmingham B32 1AF |
[2]https://www.gov.uk/government/organisati... |
[3][Highways England request email]

 

Registered in England and Wales no 9346363 | Registered Office: Bridge
House, 1 Walnut Tree Close, Guildford, Surrey GU1 4LZ 

 

Consider the environment. Please don't print this e-mail unless you really
need to.

References

Visible links
1. http://highwaysengland.co.uk/
2. https://www.gov.uk/government/organisati...
3. mailto:[Highways England request email]

Mr P Swift left an annotation ()

Thank you for your e-mail on 23 July 2019 and our apologies for the delay in responding to you. Your request has been handled under the terms of the Freedom of Information Act 2000.

In your e-mail on 23 July 2019 you made the following request –

1. I am seeking the schedule of Damage to Crown Property (DCP) rates for above threshold works held and used by BBMM when pricing DCP matters in Area 10. The schedule of rates was used in the ASC pre-04/2019 when the contract concluded. This is the schedule of DCP Rates by which BBMM charge / charged Highways England where incident costs exceed £10,000, a schedule of rates that are apparently subsidised by the lump-sum payment.
2. Please ensure the date the schedule was produced and the period to which it relates is provided. It would assist to be advised when and how often the schedule is revised.
3. The subsidy should also be explained, to the extent that I am able to reverse engineer the charges and establish the actual rate i.e. cost pre-subsidy.
BBMM clearly possess the schedule; it is used to bill Highways England. BBMM has declined to provide the schedule in the course of ordinary business but has referred to it in Court. I understand you are seeking a copy of HH Godsmark’s judgement in which the schedule is specifically referenced. A copy can be found here: http://www.englandhighways.co.uk/15-02-2...

Please also provide all information relating to:
A. your attempts to secure the information from BBMM to date; approaches and responses on the subject fo the schedule - what is held, how and seeking a copy of them.
B. Investigation of the rates having been stated to exist
C. Enquires of the statements (to HH Godsmark) that the rates are subsidised
D. The subsidy; whether this does, in fact, apply - this should be confirmed by the response to '3' above
E. Please also provide BBMM’s responsibilities under the Act; their obligations, that Balfour Beatty is not permitted contractually to respond substantively on such requests without client instruction and the instructions sought/provided to date.

For clarity we have addressed each of points in turn, our responses are below.

1. I am seeking the schedule of Damage to Crown Property (DCP) rates for above threshold works held and used by BBMM when pricing DCP matters in Area 10. The schedule of rates was used in the ASC pre-04/2019 when the contract concluded. This is the schedule of DCP Rates by which BBMM charge / charged Highways England where incident costs exceed £10,000, a schedule of rates that are apparently subsidised by the lump-sum payment.

Under Section 1(1)(a) of the Freedom of Information Act 2000 I can confirm that this information is not held by Highways England.

2. Please ensure the date the schedule was produced and the period to which it relates is provided. It would assist to be advised when and how often the schedule is revised.

Under Section 1(1)(a) of the Freedom of Information Act 2000 I can confirm that this information is not held by Highways England.

3. The subsidy should also be explained, to the extent that I am able to reverse engineer the charges and establish the actual rate i.e. cost pre-subsidy.
BBMM clearly possess the schedule; it is used to bill Highways England. BBMM has declined to provide the schedule in the course of ordinary business but has referred to it in Court. I understand you are seeking a copy of HH Godsmark’s judgement in which the schedule is specifically referenced. A copy can be found here: http://www.englandhighways.co.uk/15-02-2...

There is no subsidy.

A. your attempts to secure the information from BBMM to date; approaches and responses on the subject fo the schedule - what is held, how and seeking a copy of them.

Under Section 1(1)(a) of the Freedom of Information Act 2000 I can confirm that this information is not held by Highways England.

B. Investigation of the rates having been stated to exist

Under Section 1(1)(a) of the Freedom of Information Act 2000 I can confirm that this information is not held by Highways England.

C. Enquires of the statements (to HH Godsmark) that the rates are subsidised.
Under Section 1(1)(a) of the Freedom of Information Act 2000 I can confirm that this information is not held by Highways England.

D. The subsidy; whether this does, in fact, apply - this should be confirmed by the response to '3' above

Under Section 1(1)(a) of the Freedom of Information Act 2000 I can confirm that this information is not held by Highways England.

E. Please also provide BBMM’s responsibilities under the Act; their obligations, that Balfour Beatty is not permitted contractually to respond substantively on such requests without client instruction and the instructions sought/provided to date.

A disclosure request is defined in the contract as “a request for information relating to this contract received by the Employer pursuant to the Freedom of Information Act 2000, the Environmental Information Regulations 2004 or otherwise”.
13 Communications
13.1 Each instruction, certificate, submission, proposal, record, acceptance, notification, reply and other communication which this contract requires is communicated in a form which can be read, copied and recorded. Writing is in the English language.
13.2 A communication has effect when it is received at the last address notified by the recipient for receiving communications or, if none is notified, at the address of the recipient stated in the Contract Data.
13.3 If this contract requires the Service Manager or the Provider to reply to a communication, unless otherwise stated in this contract, he replies within the period for reply.
13.4 The Service Manager may extend the period for reply to a communication if the Service Manager and the Provider agree to the extension before the reply is due. The Service Manager notifies the Provider of the extension which has been agreed.
13.5 A notification which this contract requires is communicated separately from other communications.
13.6 The Service Manager may withhold acceptance of a submission by the Provider. If he withholds acceptance, he states his reasons. A reason for withholding acceptance is that more information is needed in order to assess the Provider’s submission fully. Withholding acceptance for a reason stated in this contract is not a compensation event.
13.7 Neither the Provider nor anyone employed by him or acting on his behalf
• gives information concerning the subject matter of this contract for publication in the press or on radio, television, screen, electronically or any other media or
• publishes or circulates any photographs of the Area Network or the Traffic Technology Systems or any part of them or any Incident (other than as necessary to Provide the Services)
without the written consent of the Service Manager. The Provider conducts any liaison with the media in accordance with the Service Information.
13.8 The Provider keeps (and ensures that anyone employed by it or acting on its behalf keeps) confidential and does not disclose to any person
• the terms of this contract
• the terms including the rates and prices in or in a contract procured under a Category Purchase Agreement and
• any confidential or proprietary information (including Personal Data) provided to or acquired by the Provider in the course of Providing the Services
except that the Provider may disclose information
• to its legal or other professional advisers,
• to anyone employed by it or acting on its behalf as needed to enable the Provider to Provide the Services,
• where required to do so by law or by any professional or regulatory obligation or by order of any court or governmental agency, provided that prior to disclosure the Provider consults the Service Manager and takes full account of the Service Manager’s views about whether (and if so to what extent) the information should be disclosed,
• which it receives from a third party who lawfully acquired it and who is under no obligation restricting its disclosure,
• which is in the public domain at the time of disclosure other than due to the fault of the Provider or
• with the consent of the Service Manager.
13.9 The Provider does not (and ensures that anyone employed by it or acting on its behalf does not) use any confidential or proprietary information provided to or acquired by it for any purpose other than to Provide the Services.
13.10 Where the Service Manager supplies the Provider with press cuttings provided to the Employer under the terms of the Employer’s licence with NLA, the Provider does not reproduce the cuttings or forward them to any third party unless the Provider has first entered into an agreement with NLA authorising it to do so.
13.11 If required by any statute to obtain express authorisation from the Employer before taking any action, the Provider obtains such authorisation.
13.12 The Provider acknowledges that the Employer is obliged to publish this contract in accordance with the Cabinet Office's Efficiency Reform Group Transparency - Publication of New Central Government Contracts of December 2010, or any later revision, except to the extent that any information in it is exempt from disclosure pursuant to the Freedom of Information Act 2000. The Employer consults with the Provider before deciding whether information is exempt, but the Provider acknowledges that the Employer is responsible for determining in his absolute discretion whether any of the content of this contract is exempt and has the final decision. The Provider co-operates with and assists the Employer to publish this contract in accordance with the Employer’s obligation.
13.13 The Provider acknowledges that the Employer may receive Disclosure Requests and that the Employer may be obliged (subject to the application of any relevant exemption and, where applicable, the public interest test) to disclose information (including commercially sensitive information) pursuant to a Disclosure Request. Where practicable, the Employer consults with the Provider before doing so in accordance with the relevant Code of Practice. The Provider uses its best endeavours to respond to any such consultation promptly and within any deadline set by the Employer and acknowledges that it is for the Employer to determine whether or not such information should be disclosed.
13.14 When requested to do so by the Service Manager, the Provider promptly provides information in its possession relating to this contract and assists and co-operates with the Employer to enable the Employer to respond to a Disclosure Request within the time limit set out in the relevant legislation.

13.15 The Provider promptly passes any Disclosure Request which it receives to the Service Manager. The Provider does not respond directly to a Disclosure Request unless instructed to do so by the Service Manager.

The obligation on the service provider is to assist HE in responding to requests in clause 13.13 and 13.14.

If you are unhappy with the way we have handled your request you may ask for an internal review. Our internal review process is available at:
https://www.gov.uk/government/organisati...

If you require a print copy, please phone the Information Line on 0300 123 5000; or e-mail info@highwaysengland.co.uk. You should contact me if you wish to complain.

If you are not content with the outcome of the internal review, you have the right to apply directly to the Information Commissioner for a decision. The Information Commissioner can be contacted at:

Information Commissioner’s Office
Wycliffe House
Water Lane
Wilmslow
Cheshire
SK9 5AF

If you have any queries about this letter, please contact me. Please remember to quote reference number FOI 100025 in any future communications.

Yours sincerely

Freedom of Information Team

Dear Highways England Company Limited,

Please pass this on to the person who conducts Freedom of Information reviews.

I am writing to request an internal review of Highways England Company Limited's handling of my FOI request 'Area 10 BBMM Above Threshold Rates & Sudsidy'.

It appears either the information you are providing me is incorrect or your witness, a BBMM employee, has made incorrect statements to a Judge, specifically HH Godsmark to whose Judgement I have referred you.

I anticipate my request and your review will address the anomaly, result in the provision of information that will clear up any misunderstanding.

I note you possess a copy of the Judgement. These incorrect statements relate to a subsidy, the judge had written:

‘An alternative measure based on the rates agreed between BBMM and Highways England for more extensive (over £10,000) repairs is subject to the criticism that those rates are subsidised by the lump sum element of the contract between Highways England and BBMM.’ No-one suggested to me any third method of calculating repair costs.’ http://www.englandhighways.co.uk/15-02-2...

As the rates are not subsidised, they are a method of calculating repair costs.

The Judge also stated that the same witness, giving evidence at proceedings issued in your name,
‘was asked why the same rates which were used in pricing repairs of over £10,000 could not be used. His response was that the £10,000 + rates were negotiated prescribed rates which were in part subsidised by the lump sum paid under the agreement.’

There exist negotiated, prescribed rates i.e. set, agreed, prearranged prices. These prices are used to bill Highways England, not Third Parties. They are agreed between Highways England and BBMM. If, for some inexplicable reason, you have not retained a copy of the negotiated, prescribed rates you were charged, I could understand why you would respond ‘ this information is not held by Highways England’; literally this would be correct.

However, the FoIA, as you have explained extends to information held ‘on behalf of’ an Authority and my request has sought exploration of this. Therefore, in terms of the Act, I do not accept your response is accurate. Furthermore, your replies are brief and shed no light upon why an approach to your contractor has not occurred.

The rates are clearly held and used by your contractor. I believe they are captured by the FoIA and can expect them to be provided.

A full history of my FOI request and all correspondence is available on the Internet at this address: https://www.whatdotheyknow.com/request/a...

Yours faithfully,

Mr P Swift

1. I am seeking the schedule of Damage to Crown Property (DCP) rates for above threshold works held and used by BBMM when pricing DCP matters in Area 10. The schedule of rates was used in the ASC pre-04/2019 when the contract concluded. This is the schedule of DCP Rates by which BBMM charge / charged Highways England where incident costs exceed £10,000, a schedule of rates that are apparently subsidised by the lump-sum payment.

Response: Under Section 1(1)(a) of the Freedom of Information Act 2000 I can confirm that this information is not held by Highways England.

2. Please ensure the date the schedule was produced and the period to which it relates is provided. It would assist to be advised when and how often the schedule is revised.

Response: Under Section 1(1)(a) of the Freedom of Information Act 2000 I can confirm that this information is not held by Highways England.

3. The subsidy should also be explained, to the extent that I am able to reverse engineer the charges and establish the actual rate i.e. cost pre-subsidy.
BBMM clearly possess the schedule; it is used to bill Highways England. BBMM has declined to provide the schedule in the course of ordinary business but has referred to it in Court. I understand you are seeking a copy of HH Godsmark’s judgement in which the schedule is specifically referenced. A copy can be found here: http://www.englandhighways.co.uk/15-02-2...

Response: There is no subsidy.

A. your attempts to secure the information from BBMM to date; approaches and responses on the subject of the schedule - what is held, how and seeking a copy of them.

Response: Under Section 1(1)(a) of the Freedom of Information Act 2000 I can confirm that this information is not held by Highways England.

B. Investigation of the rates having been stated to exist

Under Section 1(1)(a) of the Freedom of Information Act 2000 I can confirm that this information is not held by Highways England.

C. Enquires of the statements (to HH Godsmark) that the rates are subsidised.

Response: Under Section 1(1)(a) of the Freedom of Information Act 2000 I can confirm that this information is not held by Highways England.

D. The subsidy; whether this does, in fact, apply - this should be confirmed by the response to '3' above

Response: Under Section 1(1)(a) of the Freedom of Information Act 2000 I can confirm that this information is not held by Highways England.

Highways England, Highways England Company Limited

This is an automated response:

 

Thank you for your email to Highways England.

 

If you’re reporting a real time issue which requires immediate attention
please call the Customer Contact Centre on 0300 123 5000.

 

A map of the roads for which we are responsible can be found here
[1]https://assets.publishing.service.gov.uk....
If the road you’re interested in isn’t on this map it will fall under the
jurisdiction of the local authority. You can find details of local
authorities using the search facility on the gov.uk website at:
[2]https://www.gov.uk/find-your-local-council

 

If your email does relate to an issue on Highways England's network it
will be passed to the relevant team within Highways England and they will
respond to you within a maximum of 15 working days.

 

If you’ve made a request under the Freedom of Information Act we will
respond to you within a maximum of 20 working days. Your request will be
dealt with in line with government guidelines:
[3]https://www.gov.uk/make-a-freedom-of-inf...

 

Please be advised that emails may be monitored for training and quality
assurance purposes.

 

To help us improve our service please click [4]here to complete a short
survey.

 

Kind regards

 

Highways England Customer Contact Centre

This email may contain information which is confidential and is intended
only for use of the recipient/s named above. If you are not an intended
recipient, you are hereby notified that any copying, distribution,
disclosure, reliance upon or other use of the contents of this email is
strictly prohibited. If you have received this email in error, please
notify the sender and destroy it.

 

Highways England Company Limited | General enquiries: 0300 123 5000
|National Traffic Operations Centre, 3 Ridgeway, Quinton Business Park,
Birmingham B32 1AF |
[5]https://www.gov.uk/government/organisati... |
[6][Highways England request email]

 

Registered in England and Wales no 9346363 | Registered Office: Bridge
House, 1 Walnut Tree Close, Guildford, Surrey GU1 4LZ 

 

Consider the environment. Please don't print this e-mail unless you really
need to.

References

Visible links
1. https://assets.publishing.service.gov.uk...
2. https://www.gov.uk/find-your-local-council
https://www.gov.uk/find-your-local-council
3. https://www.gov.uk/make-a-freedom-of-inf...
https://www.gov.uk/make-a-freedom-of-inf...
4. https://www.surveymonkey.co.uk/r/HECCC
5. https://www.gov.uk/government/organisati...
6. mailto:[Highways England request email]

Dear Highways England Company Limited,

please advise by what date I can anticipate receiving my internal review.

Yours faithfully,

Mr P Swift

Highways England, Highways England Company Limited

This is an automated response:

 

Thank you for your email to Highways England.

 

If you’re reporting a real time issue which requires immediate attention
please call the Customer Contact Centre on 0300 123 5000.

 

A map of the roads for which we are responsible can be found here
[1]https://assets.publishing.service.gov.uk....
If the road you’re interested in isn’t on this map it will fall under the
jurisdiction of the local authority. You can find details of local
authorities using the search facility on the gov.uk website at:
[2]https://www.gov.uk/find-your-local-council

 

If your email does relate to an issue on Highways England's network it
will be passed to the relevant team within Highways England and they will
respond to you within a maximum of 15 working days.

For more information on how we use your data please check our privacy
notice at: [3]https://www.highwaysengland.co.uk/privacy

 

If you’ve made a request under the Freedom of Information Act we will
respond to you within a maximum of 20 working days. Your request will be
dealt with in line with government guidelines:
[4]https://www.gov.uk/make-a-freedom-of-inf...

 

Please be advised that emails may be monitored for training and quality
assurance purposes.

 

Kind regards

 

Highways England Customer Contact Centre

 

This email may contain information which is confidential and is intended
only for use of the recipient/s named above. If you are not an intended
recipient, you are hereby notified that any copying, distribution,
disclosure, reliance upon or other use of the contents of this email is
strictly prohibited. If you have received this email in error, please
notify the sender and destroy it.

 

Highways England Company Limited | General enquiries: 0300 123 5000
|National Traffic Operations Centre, 3 Ridgeway, Quinton Business Park,
Birmingham B32 1AF |
[5]https://www.gov.uk/government/organisati... |
[6][Highways England request email]

 

Registered in England and Wales no 9346363 | Registered Office: Bridge
House, 1 Walnut Tree Close, Guildford, Surrey GU1 4LZ 

 

Consider the environment. Please don't print this e-mail unless you really
need to.

References

Visible links
1. https://assets.publishing.service.gov.uk...
2. https://www.gov.uk/find-your-local-council
3. https://www.highwaysengland.co.uk/privacy
4. https://www.gov.uk/make-a-freedom-of-inf...
5. https://www.gov.uk/government/organisati...
6. mailto:[Highways England request email]

Dear Highways England Company Limited,

please advise by what date I can anticipate receiving my internal review. At the very least, the information is held 'on behalf of' your Authority by the contractor.

Yours faithfully,

Mr P Swift

FOI Advice, Highways England Company Limited

2 Attachments

Dear Mr Swift,

 

Please find attached the internal review ref. IR 100162 of Freedom of
Information request FOI 100162.

 

Kind Regards

 

Jonathan Drysdale

Freedom of Information Officer (HE)

Information & Technology

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

Web: [1]http://highwaysengland.co.uk

 

This email may contain information which is confidential and is intended
only for use of the recipient/s named above. If you are not an intended
recipient, you are hereby notified that any copying, distribution,
disclosure, reliance upon or other use of the contents of this email is
strictly prohibited. If you have received this email in error, please
notify the sender and destroy it.

 

Highways England Company Limited | General enquiries: 0300 123 5000
|National Traffic Operations Centre, 3 Ridgeway, Quinton Business Park,
Birmingham B32 1AF |
[2]https://www.gov.uk/government/organisati... |
[3][Highways England request email]

 

Registered in England and Wales no 9346363 | Registered Office: Bridge
House, 1 Walnut Tree Close, Guildford, Surrey GU1 4LZ 

 

Consider the environment. Please don't print this e-mail unless you really
need to.

References

Visible links
1. http://highwaysengland.co.uk/
2. https://www.gov.uk/government/organisati...
3. mailto:[Highways England request email]

Mr P Swift left an annotation ()

On the 25 October 2019 Highways England responded under ref. FOI 100162. I have not repeated the response here but have included as attachment alongside this review.

Also on the 25 October 2019 following a request for an internal review on 22 August 2019 because no response had been received, I provided a response accepting that response FOI 100162 had been provided outside of the statutory 20-working day deadline and apologising for this. Therefore, having already covered this issue I will not be addressing it again in this review.

On the 26 October 2019 you e-mailed Highways England asking for an internal review of the response provided on 25 October 2019.

I have now taken the opportunity to review the request and the response provided, and to discuss this with team who provided the response. Following my review of the response and my discussions with the team, I am satisfied that the original response to FOI 100162 addressed the questions in your request correctly and that there is nothing further to add to those responses.

If you are not satisfied with the outcome of this review you have the right to apply directly to the Information Commissioner for a decision. The Information Commissioner can be contacted at:

Information Commissioner’s Office
Wycliffe House
Water Lane
Wilmslow
Cheshire
SK9 5AF

Yours sincerely

Jonathan Drysdale
Freedom of Information Officer