Dear Enfield Council,

I ask to be provided the following information about your Highways contractor, Kier Highways Ltd:
1. A copy of the contact insofar as it relates to claiming costs for repairs from at-fault third parties and:
a. The protection the contract affords Third parties from excessive charging
b. The obligations placed on the contractor to provide information to third parties

2. The Service Level Agreement for Kier’s response to emergency incidents; the time from notification to attendance

3. Whether debris clearance, if the only ‘damage’ arising following an emergency incident, is a chargeable event to the council

4. The coverage Kier are to provide for attending emergency incidents, the provision of their Asset Incident watchmen (AIW’s) i.e. whether this is 24/7 or otherwise and

a. whether the service agreed is one of employed (AIW) staff on duty 24/7 or a standby service. If the latter, at what times are standby staff agreed to be operating.
b. What times do AIW’s operate i.e. the information in the Council’s possession of the hours AIW’s are on duty, employed and on the road (as opposed to at home on standby).
c. The number of AIW’s employed within the Council’s road network

5. Whether the council are charged a multiplier on hours worked by Kier Highways operatives where Kier’s operatives work outside 8am to 5pm of a non-holiday weekday and if so, the rates applied or minimum charges incurred.

6. The schedule of charges agreed with Kier Highways for services and

a. Where there is no culprit for your contractor to claim from, do the Council make payment to the contractor either directly or as part of a lump-sum agreement?
b. If the charges to the Council, are by use of a fee for an item (staff, plant and materials) and an uplift / overhead, please advise the latter.

7. What is the basis of any annual increase in charges to the Council by the contractor

8. A copy of the last audit of Kier’s highways activities.

Yours faithfully,

Mr P Swift

complaintsandinformation, Enfield Council

Thank you for your email.

We will respond as soon as possible.

Regards,

Complaints and Access to Information Team,
Enfield Council.

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complaintsandinformation, Enfield Council

Classification: OFFICIAL

Dear Mr Swift

 

Thank you for your email received 19^th October 2017, where you requested
information about the Highways contractor Kier Highways Ltd.

 

From our preliminary assessment, it is clear that we will not be able to
answer your request without further clarification. 

The Council requires further information in order to identify and locate
the information you have asked for. The Highways Services team has advised
that Enfield Council does not use the contractor Kier Highways Ltd. Can
you please clarify if this is the contractor you are referring to?

 

Once you have clarified your request, I will be able to begin to process
your request.  If I do not receive clarification within three months your
request will be considered to have lapsed. (Under section 1(3) of the
Freedom of Information Act (FOIA), a public authority need not comply with
a request unless any further information reasonably required to locate the
information is supplied).

 

If you are dissatisfied with the handling of your request, you have the
right to ask for an internal review. Internal review requests should be
submitted within two months of the date of receipt of the response to your
original letter and should be addressed to:

 

Complaints and Access to Information Team

Email – [1][Enfield Council request email]

 

Please remember to quote the reference number above in any future
communications.

 

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

 

Kind Regards

 

 

Nancy Wilson

Complaints and Access to Information Coordinator- Gateway Services

Finance, Resources and Customer Services

0208 379 2729

Enfield Council

Dugdale Centre

39 London Road

Enfield

EN2 6DS

 

Enfield Council is committed to serving the whole Borough fairly,
delivering excellent services and building strong communities.

 

 

 

 

 

Dear complaintsandinformation,

thank you for your response.

the information will pertain to the period 11/2011 to 10/2014 and I would appreciate being provided the reasons for termination of contract

Yours sincerely,

Mr P Swift

Routine Reactive Highways, Enfield Council

Dear Mr Swift

 

Thank you for your FOI enquiry dated 18.10.17 regarding information on
Kier Highways Ltd.

 

Please note Kiers Highways Ltd are not employed as a contractor by LB
Enfield Highways Planned & Maintenance Highways.

 

Please can you provide more information on the works & location that Kier
Highways Ltd are working in within the borough of Enfield for LB Enfield
Highways to be able to respond to your questions below.

 

Regards,

 

Karen Chitolie

Technical Support Assistant

Routine & Reactive Highways

Operational Services

Regeneration & Environment Department

Enfield Council

Silver Street

Enfield

EN1 3XY

 

[1][email address];

 

Website: [2]www.enfield.gov.uk

 

Dear Routine Reactive Highways,

You have stated Kiers (sic) Highways Ltd are not employed as a contractor by LB
Enfield Highways Planned & Maintenance Highways. I have responded - see previous.

You likely know them as:
EM HIGHWAY SERVICES LIMITED 20 Aug 2013 - 16 Oct 2015
ENTERPRISEMOUCHEL LIMITED 02 Jun 2008 - 20 Aug 2013

Page 6 of their accounts to 30/09/2014 lists London Borough of Enfield as a contract from 11/2011 for 4 years. However, the contract appears to have concluded 10/2014

Yours

Mr P Swift

Routine Reactive Highways, Enfield Council

Dear Mr Swift

Thank you for your further information.

I will arrange for our Highways team to investigate & respond to your FOI request..

Kind Regards,

Karen Chitolie
Technical Support Assistant
Routine & Reactive Highways
Operational Services
Regeneration & Environment Department
Enfield Council
Silver Street
Enfield
EN1 3XY

[email address];

Website: www.enfield.gov.uk

Dear Routine Reactive Highways,

Thank you.

Yours sincerely,

Mr P Swift

John Grimes, Enfield Council

2 Attachments

Classification: OFFICIAL

Dear Mr Swift,

 

FREEDOM OF INFORMATION ACT 2000 – INFORMATION REQUEST

 

Thank you for your email of 18^th October where you requested information
about our previous Highways Contractor, Kier Highways Ltd.

 

The information you requested is detailed below and I have answered these
against the questions as originally posed.

 

1.            A copy of the contact insofar as it relates to claiming
costs for repairs from at-fault third parties and:

a.            The protection the contract affords Third parties from
excessive charging

b.            The obligations placed on the contractor to provide
information to third parties

 

1.         In relation to the above questions I can confirm that our
contract with Kier Highways Ltd (formerly EM Highways) did not place any
obligation on the contractor to reclaim costs from at fault third parties.
This is a function that the Local Authority conducts.

           

a)    The contract does not offer third party charging mechanisms for the
contractor on behalf of the authority.

b)    The contract placed no obligations in providing information to third
parties.

 

 

2.            The Service Level Agreement for Kier’s response to emergency
incidents; the time from notification to attendance

 

2.         The Contractor shall attend the incident, as instructed, within
one hour (Category A) of receiving an instruction to do so from the
Engineer during Normally Permitted Working Hours and within two hours
(Category B) outside of the Normally Permitted Working Hours. Where
Category A is Monday to Friday between 0800 and 1800 hours and Saturday
between 0800 and 1300 hours and Category B is all other times.

 

3.            Whether debris clearance, if the only ‘damage’ arising
following an emergency incident, is a chargeable event to the council.

 

3.         All call outs attended to by the contractor were chargeable to
the Council.

 

4.            The coverage Kier are to provide for attending emergency
incidents, the provision of their Asset Incident watchmen (AIW’s) i.e.
whether this is 24/7 or otherwise and

 

a.            whether the service agreed is one of employed (AIW) staff on
duty 24/7 or a standby service.  If the latter, at what times are standby
staff agreed to be operating.

b.            What times do AIW’s operate i.e. the information in the
Council’s possession of the hours AIW’s are on duty, employed and on the
road (as opposed to at home on standby).

c.             The number of AIW’s employed within the Council’s road
network

 

4.         In answer to question 4 please find attached is an extract from
the contract detailing the item coverage for emergency responses

 

a)    The agreed service was for a 24 hour service all year round.

b)    The Council does not hold this information.

c)    The Council does not hold this information.

 

5.            Whether the council are charged a multiplier on hours worked
by Kier Highways operatives where Kier’s operatives work outside 8am to
5pm of a non-holiday weekday and if so, the rates applied or minimum
charges incurred.

 

5.         The Council were charged differing rates for Category A
attendance and Category B attendance (hours detailed above). I can confirm
that the Council does hold this information. This information is exempt
under Section 43 (commercial interests) of the Freedom of Information Act
(FOIA). Section 43(2) exempts information whose disclosure would, or would
be likely to, prejudice the commercial interests of any person (an
individual, a company, the public authority itself or any other legal
entity).

 

6.            The schedule of charges agreed with Kier Highways for
services and

 

a.            Where there is no culprit for your contractor to claim from,
do the Council make payment to the contractor either directly or as part
of a lump-sum agreement?

b.            If the charges to the Council, are by use of a fee for an
item (staff, plant and materials) and an uplift / overhead, please advise
the latter.

 

6.         I can confirm that the Council does hold this information. This
information is exempt under Section 43 (commercial interests) of the
Freedom of Information Act (FOIA). Section 43(2) exempts information whose
disclosure would, or would be likely to, prejudice the commercial
interests of any person (an individual, a company, the public authority
itself or any other legal entity).

 

a)    Kier Highway Services would have received payment if there was no
culprit to claim from. The provision of the Emergency Response Service was
a lump sum arrangement with each call out delivered an additional fee.

b)    There was

 

7.            What is the basis of any annual increase in charges to the
Council by the contractor

 

The basis of any contractual price adjustments were if there were any
changes in the Indexed figures compiled by Building Cost Information
Service (BCIS). Enfield’s indices were collated using a price fluctuation
factor and the published index figures. I have attached the price
fluctuation clause extract for your information.

 

 

8.            A copy of the last audit of Kier’s highways activities.

 

The Council does not have any audits of Kiers Activities.

 

If you are dissatisfied with the handling of your request, you have the
right to ask for an internal review. Internal review requests should be
submitted within two months of the date of receipt of the response to your
original letter and should be addressed to:

 

Complaints and Access to Information Team

Finance, Resources and Customer Services – Gateway Services

39 London Road

Dugdale Centre

Enfield EN2 6DF

Email – [1][Enfield Council request email]

 

Please remember to quote the reference number above in any future
correspondence.

 

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

 

Yours sincerely,

 

 

John Grimes

Group Engineer - Highway Maintenance

Highway Services

Operational Services

Regeneration & Environment Department

Enfield Council

Silver Street

Enfield

EN1 3XD

 

email:   [2][email address]

 

Enfield Council is committed to serving the whole borough fairly,
delivering excellent services and building strong communities.

 

 

 

 

Classification: OFFICIAL

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Dear Enfield Council,

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

I am writing to request an internal review of Enfield Council's handling of my FOI request 'Kier Highways Road Maintenance'.

I do not accept that the 'commercially sensitive argument is appropriate.

I note no explanation for the exemption being applied; no balance of interest test.

it is apparent the exemption has not been considered but applied in 'blanket' fashion presumably because coasts are mentioned. it appears the sums are financially sensitive at best.

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

Yours faithfully,

Mr P Swift

complaintsandinformation, Enfield Council

Classification: OFFICIAL
Dear Mr Swift,

Thank you for your request for internal review. We will respond to you within twenty working days.

If you would like to contact us in the meantime, please do so using [Enfield Council request email]

Regards,

Daniel Ellis
Complaints & Access to Information Officer
Complaints & Access to Information Team

Phone: 020 8379 2808
Email: [email address]
Website: www.enfield.gov.uk

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complaintsandinformation, Enfield Council

Classification: OFFICIAL
Dear Mr Swift

We have reviewed our response in light of your email dated 1 November 2017. I apologise for the delay in writing to you.

In carrying out the review, we have made reference to guidance issued by the Information Commissioner, which states:

"In most cases, public authorities should consider freedom of information requests without reference to the identity or motives of the requester. Authorities should view disclosure as a release of information into the public domain. This means that they must consider the consequences of disclosure to the world at large, and not just the impact of providing the material to the requester."

It follows that the key question for the Council when deciding how to respond is whether the information is suitable for disclosure to anyone and everyone.

On this basis we consider that other information covering rates and schedule of charges to be exempt under section 43 (2) of the Freedom of Information Act (FOIA). This section sets out an exemption from the right to know if release of the information is likely to prejudice the commercial interests of any person. (A person may be an individual, a company, the public authority itself or any other legal entity.) You may refer to detailed guidance regarding commercial sensitivity on Information Commissioner's website, here:
https://ico.org.uk/media/for-organisatio...

Companies compete by offering something different from their rivals. That difference will often be the price at which the goods or services can be delivered, but can also relate to unique terms which the parties have negotiated. We have consulted with Kier Highways Ltd and they have informed us that releasing information about rates and schedule of charges would likely to reveal market sensitive information that may be used by its competitors to undermine their competitiveness in the commercial marketplace. In particular, disclosure would or is likely to prejudice the commercial interests of Kier in any future procurement of their services. This would provide other suppliers a competitive advantage over Kier and, specifically, disclosure of rates will allow them access to understand Kier's cost base and productivity, whilst potentially disclosing salary information to the industry.

Furthermore, it may prejudice Enfield Council's under the Public Contract Regulations 2015 to undertake a fair and transparent procurement exercise in the future. The Information Commissioner has clearly stated that information about the procurement of goods and services by a public authority is usually considered to be commercially sensitive. This can include information provided during a tendering process and also details of a contract or transaction with a third party.

We recognise that release of information would be likely to facilitate the accountability and transparency of the Council for its decisions regarding public funds and other matters; allow individuals to understand decisions affecting their lives and, in some cases, assist individuals in challenging those decisions. However, we have to balance these points against the fact that disclosure could damage the interests of Kier Highways Ltd and the Council, including the wider public interests. Also, given that information was provided to the local authority in confidence, we consider that disclosure would make it less likely that companies or individuals would provide the Council with commercially sensitive information in the future and consequently undermine the ability of the Council to fulfil its public role. We consider that the public interest is served by virtue of information that we have already released and therefore have decided to maintain the exemption under section 43 (2) of the FOIA.

If you are not content with the outcome of this 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.

Regards

Nicholas Foster
Complaints and Access to Information Manager
Complaints and Access to Information Team
Finance, Resources and Customer Services
0208 379 6498
Enfield Council
PO Box 50,
Civic Centre,
Silver Street, Enfield
EN1 3XA

Enfield Council is committed to serving the whole Borough fairly, delivering excellent services and building strong communities.

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to ICO 17/12/2017

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