Peter Anderson

Dear Transport for London,
How many invoices have Kier sent you and others this year?
Are they using the same rates for you and others as for Highways England?
What schedule of rates do they use for Damage repairs to the road network?
I am asking for all information.
Yours faithfully,
Peter Anderson

FOI, Transport for London

Dear Mr Anderson

 

Our Ref:         FOI-0399-1920

 

Thank you for your request received on 7 May 2019 asking for information
about Kier.

 

Your request will be processed in accordance with the requirements of the
Freedom of Information Act and our information access policy. 

 

A response will be sent to you by 5 June 2019. We publish a substantial
range of information on our website on subjects including operational
performance, contracts, expenditure, journey data, governance and our
financial performance. This includes data which is frequently asked for in
FOI requests or other public queries. Please check
[1]http://www.tfl.gov.uk/corporate/transpar... to see if this helps you.

 

We will publish anonymised versions of requests and responses on the
[2]www.tfl.gov.uk website. We will not publish your name and we will send
a copy of the response to you before it is published on our website.

 

In the meantime, if you would like to discuss this matter further, please
do not hesitate to contact me.

 

Yours sincerely

 

Gemma Jacob

Senior FOI Case Officer

FOI Case Management Team

General Counsel

Transport for London

 

[3][TfL request email]

 

 

 

show quoted sections

FOI, Transport for London

1 Attachment

Dear Mr Anderson

 

Our Ref:         FOI-0399-1920

 

Thank you for your request received on 7 May 2019 asking for information
about Kier.

 

Your request has been considered in accordance with the requirements of
the Freedom of Information Act and our information access policy. I can
confirm we hold some of the information you require. You asked:

 

How many invoices have Kier sent you and others this year?

 

Kier have sent TfL 12 invoices so far this calendar year. We do not hold
information on any invoices they have sent to other organisations.

 

Are they using the same rates for you and others as for Highways England?

 

We do not hold this information as we do not know the rates Kier has with
other organisations.

 

What schedule of rates do they use for Damage repairs to the road network?

 

In accordance with the Freedom of Information Act we are not obliged to
provide the schedule of rates as it is subject to a statutory exemption to
the right of access to information under section 43(2) commercial
interests.

 

In this instance the exemption has been applied as disclosure would be
likely to prejudice our commercial interests, as well as Kier’s, by
hindering their ability to operate competitively in the market place for
future contracts of this nature. Provision of this information would allow
rival bidders and potential clients to have an insight on their pricing
structure and manipulate this to hinder the ability of our contractors to
conduct their business as competitively as possible. LoHACs are not aware
of the rates of other LoHACs.

 

The use of this exemption is subject to an assessment of the public
interest in relation to the disclosure of the information concerned. We
recognise the need for openness and transparency by public authorities,
but in this instance we feel that the balance of public interest lies in
favour of withholding the information to ensure that future tender
processes of this nature remain fair and effective for all parties.

 

The Information Commissioner’s Office (ICO) have also issued a decision
notice ([1]FS50693918) upholding the use of section 43(2) to withhold this
information.

 

If this is not the information you are looking for please feel free to
contact me.

 

Please see the attached information sheet for details of your right to
appeal.

 

Yours sincerely

 

Gemma Jacob

Senior FOI Case Officer

FOI Case Management Team

General Counsel

Transport for London

 

[2][TfL request email]

 

 

 

show quoted sections

Dear FOI,

I've read that DCP Rates are not commercially sensitive. I ask to be provided them.

Yours sincerely,

Peter Anderson

FOI, Transport for London

Thank you for your request for an internal review which was received on 16 May 2019.

You have stated that you are dissatisfied with the handling of your request for information under the Freedom of Information Act.

The review will be conducted by an internal review panel in accordance with TfL’s Internal Review Procedure, which is available via the following URL:

http://content.tfl.gov.uk/internal-revie...

Every effort will be made to provide you with a response by 14 June 2019. However, if the review will not be completed by this date, we will contact you and notify you of the revised response date as soon as possible.

Yours sincerely

Emma Flint
Principal Information Access Advisor
FOI Case Management Team
General Counsel

show quoted sections

Mr P Swift left an annotation ()

The Rates used by Kier to charge Third Parties, the DCP Rates, are the same as they charge Third parties in most of the Highways England Areas.
Kier apply the same process for TfL Third Parties as they do HE Third Parties.
For Highways England Third Parties there is a contractually agreed process however, Kier does not comply with this process. If they did an AIW, for example, would be charged to a Third Party at about £32 / hour. Instead you will be charged over £60 hour. After 5pm of a weekday, over £90 / hour whereas Highways England would be charged about £25 / hour - they also get this rate of a weekend whereas a Third Party is charged over £120 / hour.
11/2018 Mr Carney of Highways England told a Tribunal 'DCP Rates are NOT commercially sensitive'. So there appears no reason why TfL should withhold these for the likes of AIW's, plant and materials.
Why do TfL not know what their contractors are charging Third Parties, of the excessive sums?
More can be found at: http://www.englandhighways.co.uk/once-up...
Bear in mind, Kier say they are complying with the defined costs + uplift process. They are not. As the rates charged are the same in TfL incidents, the questions and concerns associated with Highways England areas can be applied to TfL. It is likley TfL will resist providing the information you have sought and it appears this is to save them embarrassment and enable their contractor to profiteer.
Possibly TfL have done a deal with the contractor; charge what you like to TP's, just keep our costs low? Are road users involved in collisions subsidizing the upkeep of TfL highways?

FOI, Transport for London

Dear Mr Anderson

I am contacting you with regards to your request for an internal review concerning the response provided to FOI-0399-1920. This review has been carried by an independent panel following your email of 16 May 2019 regarding the application of section s43(2) to withhold the information you have requested.

The panel have re-examined the application of section 43(2) in regard to the rates charged by Kier Highways. The disclosure of the requested information would be likely to affect our ability to negotiate in any future tenders. As outlined in our response, there are other companies who provide similar services and disclosure of the price we currently pay could hinder the ability of Kier Highways to competitively tender for similar contracts in the future as well as hinder our ability to negotiate the best value for money for similar services in the future.

The Panel have also considered the public interest in the use of section 43(2) and concluded that the balance lies in favour of withholding the information. Whilst the public interest test will naturally favour the release of information in the pursuit of openness and transparency, when looking at disclosure requests for contractual information we have to be mindful of different commercial risks. These include consideration of the likelihood that if detailed pricing information were disclosed it would likely result in a clustering of bids based on previously negotiated payments when we next go out to tender for the same or similar contracts. The commercial interests of the contractors would be prejudiced by disclosure as they compete with other firms for similar works across the country.

Releasing this information would also be prejudicial to Kier's ability to compete for tendering opportunities with TfL and other companies in the future, as their competitive edge would inevitably be prejudiced by disclosure of a detailed breakdown of their price. The Panel give significant weight to the argument that this contract is not unique, we hold three similar contracts under LoHAC with companies who also compete with other providers for similar contracts with other authorities which come up for tender at different times. The Panel consider that disclosure of the price information you seek would hinder TfL’s ability to obtain best value for public money in future negotiations, and prejudice the commercial interests of suppliers, which in this instance out weighs the public interest in disclosure.

Therefore in this instance the panel agree that section 43(2) has been appropriately engaged and your complaint has not been upheld. The Information Commissioner’s Office (ICO) have also issued a decision
notice upholding the use of section 43(2) to withhold this information which can be viewed here - https://ico.org.uk/media/action-weve-tak...

I hope the above provides satisfactory clarification, however if you are dissatisfied with the internal review actions to date you can refer the matter to the independent authority responsible for enforcing the Freedom of Information Act, at the following address:

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

A complaint form is also available on the ICO’s website (www.ico.org.uk).

Yours sincerely

Emma Flint
Principal Information Access Adviser
FOI Case Management Team
Transport for London
[TfL request email]

show quoted sections

Dear FOI,
I got a response that says

The Rates used by Kier to charge Third Parties, the DCP Rates, are the same as they charge Third parties in most of the Highways England Areas.
Kier apply the same process for TfL Third Parties as they do HE Third Parties.
For Highways England Third Parties there is a contractually agreed process however, Kier does not comply with this process. If they did an AIW, for example, would be charged to a Third Party at about £32 / hour. Instead you will be charged over £60 hour. After 5pm of a weekday, over £90 / hour whereas Highways England would be charged about £25 / hour - they also get this rate of a weekend whereas a Third Party is charged over £120 / hour.
11/2018 Mr Carney of Highways England told a Tribunal 'DCP Rates are NOT commercially sensitive'. So there appears no reason why TfL should withhold these for the likes of AIW's, plant and materials.
Why do TfL not know what their contractors are charging Third Parties, of the excessive sums?
More can be found at: http://www.englandhighways.co.uk/once-up...
Bear in mind, Kier say they are complying with the defined costs + uplift process. They are not. As the rates charged are the same in TfL incidents, the questions and concerns associated with Highways England areas can be applied to TfL. It is likley TfL will resist providing the information you have sought and it appears this is to save them embarrassment and enable their contractor to profiteer.
Possibly TfL have done a deal with the contractor; charge what you like to TP's, just keep our costs low? Are road users involved in collisions subsidizing the upkeep of TfL highways?

So I will go to to the Information Commissioner’s Office .
Yours sincerely,

Peter Anderson