Lumpsum Lump Sum Pay To Contractors

Mohammed Ashraf made this Freedom of Information request to Highways England Company Limited

This request has been closed to new correspondence from the public body. Contact us if you think it ought be re-opened.

The request was partially successful.

Mohammed Ashraf

Dear Highways England Company Limited,

I would like to be sent for 2016, 2015, 2014, 2013, 2012 & 2011, information For each road area I am asking The name of the contractor. The lump sum paid to the contractor. How often and when the payments are made. What the payments cover. Copy of the contract where this is agreed

Can you send a spreadsheet
Thank you Mohammed Ashraf

Highways England, Highways England Company Limited

This is an automated response:

 

Thank you for your email to Highways England.

 

If you are 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]http://www.highways.gov.uk/publications/... If
the road you are interested in is not 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
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Highways England Company Limited | General enquiries: 0300 123 5000
|National Traffic Operations Centre, 3 Ridgeway, Quinton Business Park,
Birmingham B32 1AF |
[4]https://www.gov.uk/government/organisati... |
[5][Highways England request email]

 

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FBS & IT Correspondence, Highways England Company Limited

1 Attachment

  • Attachment

    Re RE RE freedom of information act.html

    2K Download

Good morning Mr Ashraf,

I am writing regarding your request for information, received on the 15th of June (below) and the 17th of June (attached).

We have estimated that the cost of compiling your request will exceed £450. Section 12 of the Act does not oblige us to comply with requests if they exceed this limit.

We can provide all the information requested with the exception providing copies of the contracts as sourcing each individual area contracts would put over the cost limit.

If you wish to discuss any of the above, please contact me. Please remember to quote reference number 739465 in any future communications.

Yours sincerely

Tim Peffers
Finance and Business Services Correspondence

show quoted sections

Mohammed Ashraf

Dear FBS & IT Correspondence,

Good morning Mr Peffers
I have made 2 requests and do not agree you have put both here. You say ‘request’ they are 2. Does this make cost to much. I ask for all the data you can send for the price and contract for the M6 area 9.
There is no request below.
Why do you wait a month to tell me.
please send Information is due today.
Yours sincerely
M Ashraf

Yours sincerely,

Mohammed Ashraf

Mohammed Ashraf

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 'Lumpsum Lump Sum Pay To Contractors'.

I HAVE NOT GOT MY INFORMATION.
WHY WAIT UNTIL LST TO TELL ME THE COST IS TO MUCH

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

Yours faithfully,

Mohammed Ashraf

Highways England, Highways England Company Limited

This is an automated response:

 

Thank you for your email to Highways England.

 

If you are 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]http://www.highways.gov.uk/publications/... If
the road you are interested in is not 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 have made a request under the Freedom of Information Act your
request 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...

 

Yours sincerely

 

Highways England Customer Contact Centre

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

 

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

 

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5. mailto:[Highways England request email]

FBS & IT Correspondence, Highways England Company Limited

1 Attachment

Good morning Mr Ashraf,

Please find attached your response to the Freedom of Information request regarding the legality of claims.

We have a draft prepared to answer your second FOI regarding the lump sum payments however we are checking the contract requested does not contain commercially sensitive data and are performing a Public Interest Test to determine if releasing this potentially sensitive information is in the best interest of the public.

I will keep you informed,

Kind regards,

Tim Peffers
Finance and Business Services

show quoted sections

FBS & IT Correspondence, Highways England Company Limited

3 Attachments

Good afternoon Mr Ashraf,

Please find attached the response to your Freedom of Information request. All data requested should be attached, please let me know if you require anything further.

Please accept my apologies in the delay delivering this to you. We cannot release any information that is commercially sensitive. We have reviewed the contract document for commercially sensitive data and have concluded that we could not release a signed contract as this would include pricing information. However, we can release the attached document which is the contract framework which includes the instruction to pay but not specific pricing information.

Kind regards,

Tim Peffers
FBS and IT Correspondence

show quoted sections

Sarah Joseph left an annotation ()

have you asked Mr swift for pricing information - there are requests on this site about the subject from him? it seems confidential is the general excuse used when charges are raised yet they are used when the authority wants money off of drivers or their insurers. how can prices the authority agree when spending our money and charge us when we cause damage be confidential. good luck.
S Joseph

FOI Advice, Highways England Company Limited

1 Attachment

Dear Mr Ashraf

Please find a response to your request for an Internal Review

Yours Sincerely

Layla Beckett, Freedom of Information Officer
Highways England | Piccadilly Gate | Store Street | Manchester | M1 2WD
Web: http://www.highways.gov.uk

show quoted sections

Mr P Swift left an annotation ()

The status of this request had not been updated so i have attended to this as 'some of the information has been supplied'. the data is interesting, albeit a little bland. That the contract refers to the means by which pricing occurs is helpful.
P. Swift

Mohammed Ashraf left an annotation ()

Thanks and for the pm. I will write to highways England

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 'Lumpsum Lump Sum Pay To Contractors'.
I am told that using commercially sensitive is common. I do not accept that there is any such commercial sensitive. Please see:

You may wish to refer HE to the links below and that construction companies speak to one another, know each other’s rates which, as an example, in the past has led to investigation relating to pricing collusion:
http://www.englandhighways.co.uk/claims/...
http://www.englandhighways.co.uk/claims/...
http://www.englandhighways.co.uk/claims/...
http://www.englandhighways.co.uk/claims/...

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

Yours faithfully,

Mohammed Ashraf

Highways England, Highways England Company Limited

This is an automated response:

 

Thank you for your email to Highways England.

 

If you are 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]http://www.highways.gov.uk/publications/... 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 have made a request under the Freedom of Information Act your
request 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...

 

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 |
[4]https://www.gov.uk/government/organisati... |
[5][Highways England request email]

 

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

 

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Mr P Swift left an annotation ()

Please see my pm.
There is likely a cost to collect information and present same to support a claim for reimbursement of repair prices. But ... is this a valid claim against a driver, fleet or insurer and as you ask, why would Highways England (HE) not be subject to this? Possibly HE claims are subsidised by the claims made to drivers, fleets and insurers?

Regarding the Area 3 source of 1153. This tender was said to date from 2010 or 2011. Kier Highways ltd (KHL) commenced the contract 11/2013 – source: Accounts to 30/09/2014. But the accounts detail their 8 other contracts and in 07/2014 they started on area 9. That is to say 1153 is for a small proportion of their work yet is applied to the whole – 1153 was used throughout their contract.

However, 1153 was not (to my knowledge) used on HE contracts.

1153 appears to be for but a small proportion of their work. Indeed, KHL have produced an Insurers Guide 10/2015 in which they document the number of claims they handle per annum – 5,400. To convey this in monetary terms:

• Division by 1,153 saw the basic claim cost average, just for attendance, pre-repair, charged at about £4,700.
• Division by 5,400 would see the same charge reduced to almost 1/5th; about £1,000

• The annual cost / charge, by reference to 1153 was £5,400,00 (1153 x £4700)
• The annual cost / charge, by reference to 5,400 is £25,380,000 (5400 x £4700)

It therefore appears that KHL were overcharging by £20 million. Yet, in 01/2016 HE found no evidence of overcharging when undertaking an audit!

5,400 is likely to include those incidents where a culprit is not located i.e. no invoice would be raised to a driver, fleet or insurer. But if 50% of the incidents were ‘lightening strikes’ (no one to claim against) there remains 2,700 claims (as opposed to 1153) and the charges / invoicing would be £10 million more than 1153 caused.

But reference to ‘lump sum payments’ is not taken into consideration. It appears that HE are paying for these, that the lightning-strikes, whilst unable to be invoiced to a driver, fleet or insurer, are covered by HE. Re lump sum there is a response about these on this site at:

https://www.whatdotheyknow.com/request/l...

I note you have sought specific rates. There appears no reason why these should be withheld. I will monitor the response as Highways England’s General Counsel has disclosed some of these additionally, we see the charges presented to insurers and to HE.

However, your point is interesting; if 1153 was used to calculate the average cost of a claim because this was the number of incidents / annum, was 1153:

• All claims for the area
• Or just those claims where a driver / culprit was identified?

P Swift
www.cmaclaims.co.uk
www.englandhighways.co.uk

Mr P Swift left an annotation ()

Fyi and others who have an interest in this subject, I find it intriguing that the information was provided to you. whilst i note you were initially obstructed, subjected to what appears to be Highways England's default response 'commercially sensitive', the data was provided.

conversely, i made a similar request, albeit not via this site. The reply I received from Tim Reardon, Highways England’s General Counsel on 10/02/2016, was:

“I am happy to speak with you regarding your request for information about Kier’s lump sum payments but in the context of the information that you have already been provided with this seems to be a disproportionate request for information which is very likely commercially sensitive, and again it has the flavour of a fishing expedition. “

6 months later you are provided the information!

P Swift
www.EnglandHighways.co.uk

Mohammed Ashraf left an annotation ()

Why is it so difficult to get information, it took months .

Dear Highways England Company Limited,

i have the lumpsum data. i ask to be provided:

how much is paid for each lumpsum aspect. how are the sums for each arrived at

Yours faithfully,

Mohammed Ashraf

Highways England, Highways England Company Limited

This is an automated response:

 

Thank you for your email to Highways England.

 

If you are 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]http://www.highways.gov.uk/publications/... 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 have made a request under the Freedom of Information Act your
request 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...

 

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 |
[4]https://www.gov.uk/government/organisati... |
[5][Highways England request email]

 

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

 

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Mr P Swift left an annotation ()

Mr Ashraf
The following may help explain why there appears to be a reluctance by Highways England to explain how they spend our money.
Highways England employ contractors to undertake road maintenance.
Whilst you might think that every time a barrier was bashed (as an example), the contractor would go out, repair it and bill Highways England, this is not always the case due to the contracts. In some instances:
• Where the incident (attendance / repair etc) costs MORE than £10,000, the contactor sends the bill to Highways England for payment and Highways England pursue the insurer.

• Where the incident (attendance / repair etc) costs LESS than £10,000, the contactor sends the bill to the insurer. The contractor is responsible for the loss.
With regard to incidents (such as damage to a motorway barrier) let’s say each year 50% of the people responsible are identified and 50% are not (or are men of straw, not at fault etc.). Where these claims are under £10,000, for half of these (50%) the contractor suffers the loss; unable to recover their outlay from a culprit where labour, staff, plant, materials and sub-contractors were employed – they all cost money!
It makes no sense for a contractor to operate at a loss; we all want our highways professionally maintained. Enter ‘your’ lump-sum payment. The contractor receives a payment for these ‘unidentified culprit’ repairs from Highways England; the lump-sum covers these costs and others – as the breakdown you were given conveys.
But how much of the lump-sum relates to the repairs mentioned, those where there is no identified culprit?
If you knew the answer it could help identify the reasonableness of repair costs to drivers, fleets and insurers, or reinforce concerns that these costs are unmanaged, awry and require reconsideration.
Why would the costs agreed with Highways England for the ‘attendance’ labour, plant and admin’ be any different to the sums charged to drivers, fleets and insurers? In turn, as there are 1,000’s of these each year with the rates being sent on every claim, why is any confidentially associated with the amounts?
Possibly it would help to present some figures by way of example, these are not actual numbers:
• If a contractor claimed to handle 1250 claims per annum and
• Their total ‘attendance’ bill was £5 million
• The average (per incident) cost of ‘attendance’ (labour, vehicle and admin’) would be £4000 to an insurer
• But if they only identify 50% of culprits, they can only raise invoices on half; 625 x £4000 = £2.5 million (half of £5 million)
• You would therefore expect the proportion of the lump sum attributable to ‘third party claims’ (unidentified culprits) to be the 50% that cannot be billed to insurers, the other £2.5 million
But the labour and vehicle cannot just attend incidents surely?
• 1250 / annum is about 24 /week.
• If the contractor has 20 ‘attendance’ teams even allowing for sickness and rest days, there would likely be at least 10 teams working a 5-day week.
• That’s just over 2 attendances per team each per week, let’s say 3
• If the attendance staff work a 40-hour week and each incident takes 4 hours, 12 hours of their time is taken up with incidents, let’s say 16 hours, 2 days.
What are these ‘attendance’ teams doing on the other 3 days?
Whatever it is, drivers, fleets, insurers and Highways England are paying for it.
Let’s not forget, Highways England are spending our tax money, it is we who are paying for the untraced driver claims etc.
And what about those over £10,000 incidents – the contractor is using the same labour, plant etc. How do these figure in the calculation? Why are Highways England not billed using the ‘average annual cost’ approach?
But what if the contractor did not really attend 1250 incidents, what if this were understated?
For example:
• If a contractor was to handle 5400 claims per annum and
• The average cost of ‘attendance’ (labour, vehicle and admin’) remained £4000 to an insurer
• Allowing for the contractor being able to bill on only 50% of the 5400 i.e. 2700
• At £4,000 per claim, the contractor invoices almost £11 million

But the contractor’s costs are £5 million (see above) for 100% of the ‘attendance’ time

£11 million - £5 million = £6 million over and above what the contractor’s costs are

On top of this it appears the contractor gets a lump sum from Highways England. If the proportion of the lump sum allocated to unidentified ‘culprits’ is £2.5 million, the contractor is receiving over £8.5 million above the cost of the ‘attendance’ charges; more than double the cost to them.

But the lump sum breakdown is also likely to be withheld because to supply the information would identify how much Highways England are handing over to have, for example, grass cut.

If the people cutting the grass are the people involved in incident ‘attendance’ then we know how some of their spare time each week is taken up. But as 100% of their time has already been paid for by drivers, fleets and insurers following incidents (see above £11 million) why are Highways England paying (again) for this task? Who is safeguarding the public purse?

The lump sum breakdown could also identify what Highways England are paying for aspects of the ‘attendance’.

A little more mathematics … if:

• A contractor has 20 ‘attendance’ teams, each with a van
• The annual cost of each van is £450,000
• The average cost of the van is £22,500 or £430 / week
• Working a 40 hour week (if not on the road 24/7), the hourly cost is £10.75

Therefore, if a contractor wished to ditch the ‘annual average cost per incident’ approach (above), albeit they considered seeking reimbursement of their actual costs was appropriate, reasonable, they could apply an hourly rate.

Possibly the lump sum payment will identify this as … £10.75 / hour for the likes of a Mercedes-benz Sprinter 313 Cdi? Or maybe a sum of about £15 plus a percentage fee bringing the total nearer to £16 / hour. But surely no more than this, not double?

P. Swift
www.cmaclaims.co.uk / www.englandhighways.co.uk

Dear Highways England Company Limited,

i am asking for a review. you have not replied.

Yours faithfully,

Mohammed Ashraf

Highways England, Highways England Company Limited

This is an automated response:

 

Thank you for your email to Highways England.

 

If you are 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]http://www.highways.gov.uk/publications/... 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 have made a request under the Freedom of Information Act your
request 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...

 

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 |
[4]https://www.gov.uk/government/organisati... |
[5][Highways England request email]

 

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

 

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5. mailto:[Highways England request email]

FOI Advice, Highways England Company Limited

Ref 742,764

 

Dear Mr Ashraf

 

I refer to your request for an internal review regarding our handling of
your Freedom of Information request "'Lumpsum Lump Sum Pay To
Contractors".

 

In your original request dated 15 June 2016, you asked for the following
information:

 

“I would like to be sent for 2016, 2015, 2014, 2013, 2012 & 2011,
information For each road area I am asking The name of the contractor. The
lump sum paid to the contractor. How often and when the payments are made.
What the payments cover. Copy of the contract where this is agreed”

 

As you had already submitted two other Freedom of Information requests
(ref 738,587 and 739,459), we calculated that the costs of responding to
them all would exceed the cost limits of £450. Section 12 of the Act does
not oblige us to comply with requests if they exceed this limit. We
therefore asked you to reduce the scope of this particular request. In
accordance with Section 16 of the Freedom of Information Act we advised
that we could provide all the information for this specific request with
the exception of the contracts as sourcing each individual area contract
would exceed the cost limit.

 

You responded the following day (14 July) and asked for the price and
contract for the M6 Area 9.

 

On 26 July 2016, we provided you with the lump sum figures along with a
copy of the Area 9 contract that did not contain any pricing figures.  The
explanation given in the response was that the pricing figures could not
be disclosed because it was deemed commercially sensitive. Unfortunately,
it did not clearly state what exemption had been applied and what
arguments were considered that determined the outcome of the Public
Interest Test. I sincerely apologise for this oversight and would like to
confirm that Section 43 (1) and (2) were applied to the Public Interest
Test http://www.legislation.gov.uk/ukpga/2000...

 

Factors for disclosure and non-disclosure were considered as set out below

 

Factors for Disclosure

 

•           There is a clear public interest in the work of government
being closely examined to encourage the discharging of public functions in
the most efficient and effective way;

•           There is an important public interest in the work of public
bodies being transparent and open to scrutiny to increase diligence and to
protect the public purse;

•           There is a strong public interest in releasing information
which shows the government is monitoring the performance of its’ service
providers to ensure they are providing the public services they have been
paid to perform.

 

Factors for Non- Disclosure

 

•           Future procurement processes must be fair and commercial
interests of the service providers are not unduly prejudiced by the
release of commercially sensitive information.  It is important to
maintain the confidence of our suppliers in order to achieve best value
for the tax payer.

•           Future contract negotiations with service providers must not
be threatened by the potential public disclosure of information that could
damage the service providers’ reputational or commercial standing.

•           The pricing mechanism outlined in the contract may be
construed as a “trade secret” in that it is a strategy owned and developed
by the company.  If the methodology was made available to competitors in
the market place it would undermine the commercial interests of the
consultant when  

           bidding for future contracts by reducing their competitive
edge; 

•           Disclosure of signed contracts of private companies could
potentially demotivate potential service providers bidding in future
procurement processes. This would restrict Highways England’s ability to
procure the service provider who offers best value for public money.

•           Pricing data and contract amendments made by the supplier for
specific projects and geographical areas are not indicative of  other area
contracts and releasing a contract without amendments and pricing data is
more indicative of a Highways England agreements with all its’ area
suppliers.

 

The outcome of the Public Interest Test was that the arguments in favour
of withholding the information outweighed the arguments for disclosure.

 

Again, I apologise that a full explanation of how we reached our decision
was not provided to you at the time. However, having looked at the
arguments set out in the Public Interest Test, I uphold my colleagues’
decision to use Section 43(1) and (2) of the Freedom of Information Act as
an exemption to withhold commercially sensitive information contained in
the contract.

 

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

 

 

Layla Beckett, Freedom of Information Officer

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

Web: http://www.highways.gov.uk

 

 

show quoted sections

Mr P Swift left an annotation ()

there is more to the contract than you have bene supplied or appears available on line - happy to answer a pm
P. Swift

Dear FOI Advice,
the contract you sent has annex and one has at least one appendix to annexe 23.
why was this not supplied
what other appendixes are there
i am aksing for the annex and appendix documents and dates they were added

Yours sincerely,

Mohammed Ashraf

Mr P Swift left an annotation ()

I am watching this request and alerted to updates. the contract you need to ask about is the ASC. whilst these are be phased out, they are current and there have been many updates since the inception. Contract corres' can be found here:
http://webarchive.nationalarchives.gov.u...
regards
P Swift
www.englandhighways.co.uk

Sarah Joseph left an annotation ()

sir
i have just made a request to the authroity and noted your reference to ASC. please pm me as i may have info' that will help you.
Sarah

FOI Advice, Highways England Company Limited

Dear Mr Ashraf

 

Your request is being handled as a new request under the Freedom of
Information Act

 

You should expect to receive a response no later than 6 March

 

Please quote 748,181 if you have any queries relating to this email

 

Yours sincerely

 

Layla Beckett, Freedom of Information Officer

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

Web: http://www.highways.gov.uk

 

 

show quoted sections

OD MIDLANDS HLC, Highways England Company Limited

2 Attachments

 

 

Good Afternoon,

 

Thank you for your Freedom of Information request. Please find attached
our response.

 

 

Kind regards

 

 

Saira Batool
High Level Correspondence Team| OD Midlands |Highways England | The Cube |
199 Wharfside Street | Birmingham | B1 1RN
Web: [1]http://www.highways.gov.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 

 

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Mr P Swift left an annotation ()

Appendix A of Annex 23 is an interesting document and should be circulated. It appears to undermine any argument for ‘commercial sensitivity’ being associated with the disclosure of the rates charged to the public (drivers, fleets & insurers) i.e. Third Parties because, in order for the TP to ascertain whether they are being charged appropriately, in accordance with the contract, it is necessary for the Third-Party to be aware of the rates.

Paragraph 1 of the appendix states that the document sets out the MAXIMUM to be claimed when pursuing a claim against ANY third party.

Paragraph 8 states the ‘amount to be claimed is NO MORE THAN’ then defines the calculation:

1. Total Defined Costs plus
2. Third Party Claims Overhead

How can a third party ascertain whether they are being charged appropriately, in accordance with Appendix A of Annex 23 unless they know the 2 elements (above). The contractor concerned, Kier Highways Ltd, does not display the breakdown when invoicing a Third-Party (they do when invoicing their Public Authority client, see:

http://www.englandhighways.co.uk/wp-cont...

At present, the information in our possession indicates the contractor is NOT charging in accordance with Appendix A of Annex 23 and it appears, for this reason, they and their Public Authority client are resisting attempts to obtain ‘1’ above, the Defined Costs.

The Third Party Claims Overhead is believed to be 20.58%.

To cite an example, the contractor charges a ‘Defined Cost’ for an operative (AIW) of a little over £23, plus their fee to the Public Authority of 7.38%, the total fee to the public Authority is about £25.50 / hour.

If the same Defined Cost were used, as per Appendix A of Annex 23, the charge to a Third Party would be the £23 plus 20.58% i.e. less than £30 / hour.

Currently the contractor charges £70 / hour to a Third Party … and has yet to explain this!

For more ‘arguments for disclosure’, see:

http://www.englandhighways.co.uk/claims/...

P. Swift
www.cmaclaims.co.uk
www.englandhighways.co.uk

highways agency

please explain the appendix and provide the supporting documents and why they are being kept from me.

Yours sincerely,

Mohammed Ashraf

Dear OD MIDLANDS HLC,

please explain the appendix and provide the supporting documents and why they are being kept from me.

Yours sincerely,
Mohammed Ashraf

Mr P Swift left an annotation ()

you may wish to look at
https://www.whatdotheyknow.com/request/c...
this says more about defined costs and TP working overhead

Mr P Swift left an annotation ()

possibly of interest, I have highlighted the reference to 'commercially sensitive':

From: NDD C DST
Date: 21/07/2014 12:45 (GMT+00:00)
To: Philip Swift
Subject: RE: CRS 708.005

Dear Philip,
Further to your email below, you raise two points.

First, in reference to an FOIA request of the Highways Agency when the data is held by the contractor, the answer is yes, we will seek and provide that information subject to any exemptions.

Regarding your second point on directing you to the part of the contract that deals with FOIA, I refer you to my original response where I gave you the relevant links and excerpt (N.B. my apologies for a typographical error in the previous correspondence; it is condition 13.13 and not 13.3). For convenience, here is the relevant information again:

Please visit our Publication pages on our website, where you will see a PDF document entitled ASC Model Conditions of Contract (326KB PDF).

Within the document there is condition 13.13 that states:

“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.”

Yours sincerely,

senior business coordinator
Highways Agency | The Cube | 199 Wharfside Street | Birmingham | B1 1RN
Tel: +44 (0) 121 6788440
Web: http://www.highways.gov.uk
GTN: 6189 8440

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 'Lumpsum Lump Sum Pay To Contractors'.
A full history of my FOI request and all correspondence is available on the Internet at this address: https://www.whatdotheyknow.com/request/l...
Yours faithfully,

Mohammed Ashraf

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
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This email may contain information which is confidential and is intended
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Highways England Company Limited | General enquiries: 0300 123 5000
|National Traffic Operations Centre, 3 Ridgeway, Quinton Business Park,
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FOI Advice, Highways England Company Limited

1 Attachment

Dear Mr Ashraf

You have asked for an internal review of your FOI request 'Lumpsum Lump Sum Pay To Contractors'

As you will see from the link you provided https://www.whatdotheyknow.com/request/l... we responded to your request for an internal review on 9 August 2016. Please also find a copy of the response attached

As we have already conducted an internal review, I consider your email dated 18 April 2017 to be a repeat request and no further action is required from Highways England regarding the matter

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

Layla Beckett, Freedom of Information Officer
Highways England | Piccadilly Gate | Store Street | Manchester | M1 2WD
Web: http://www.highways.gov.uk

show quoted sections

Sarah Joseph left an annotation ()

ICO finds against Highways England Commercially Sensitive arguement
http://www.englandhighways.co.uk/commerc...
fs50684952
Freedom of Information Act 2000 (FOIA)
Decision notice
Date: 11 December 2017
Public Authority: Highways England
Address: Piccadilly Gate
Store Street
Manchester Ml 2WD
Decision (including any steps ordered)
1. The complainant has requested information relating to third party claims costs. Highways England withheld the requested information under section 43(1) and (2) FOIA.
2, The Commissioner considers that Highways England has incorrectly applied section 43(1) and (2) FOIA to the withheld information.
3. The Commissioner requires the public authority to take the following steps to ensure compliance with the legislation.
Disclose the information withheld under section 43(1) and (2) FOIA.
4. The public authority must take these steps within 35 calendar days of the date of this decision notice. Failure to comply may result in the Commissioner making written certification of this fact to the High Court pursuant to section 54 of the Act and may be dealt with as a contempt of court.
Request and response
5. On 2 March 2017 the complainant requested information of the following description:
“How do the claims costs and overheads differ by contractor, date and area in the United Kingdom”
This was a follow up to a previous request made on 3 October 2016.
6. On 7 June 2017 Highways England responded by reiterating a previous response which had been sent to the earlier 3 October 2016 request. It explained that
“We cannot disclose the actual rates, as this is commercially sensitive information. We can confirm, however, that fee percentages do vary, to a degree, with each of our service providers on each of our contracts. To explain further, the nature of Highways England’s contracts for service providers is such that these are let at a variety of points in time and so the contracts made are not identical across all providers and areas at any given point in time, which could affect the cost base and approach of the provider.”
7. The complainant requested an internal review on 8 June 2017. Highways England sent the outcome of its internal review on 27 June 2017. It confirmed that it was withholding the information under section 43(1) and (2) FOIA.
Scope of the case
8. The complainant contacted the Commissioner on 7 June 2017 to complain about the way his request for information had been handled.
9. The Commissioner has considered whether Highways England was correct to apply section 43(1) and (2) FOIA to the withheld information.
Reasons for decision
Section 43 — commercial interests
10. Section 43(1) FOIA says that information is exempt if it constitutes a trade secret.
11. The term ‘trade secret’ is not defined in the Act. In her guidance, the Commissioner advises that perhaps the most important thing to grasp is that the term can have a fairly wide meaning. It covers not only secret formulae or recipes, but can also extend to such matters as names of customers and the goods they buy, or a company’s pricing structure, if these are not generally known and are the source of a trading advantage.
12. The trade secret exemption within section 43 FOIA is a class based exemption which means that if information is a trade secret it is exempt, whether or not harm results from its disclosure.
13. Highways England said that the information requested is methodology considered by Keir Highways to be a Trade Secret. It said that this methodology is owned by Kier and is used in winning bids.
It said that it asked Kier to provide a brief summary of their arguments which it would forward to the ICO.
Despite asking for these third party submissions a number of times, Highways England has failed to forward these to the ICO.
14. Based upon Highways England submissions to the Commissioner, she does not consider that it has sufficiently explained why the withheld information is a trade secret. The Commissioner is therefore not persuaded that section 43(1) FOIA can be applied to the requested information.
15, Section 43(2) FOIA says that information is exempt information if its disclosure under the FOIA would, or would be likely to, prejudice the commercial interests of any person (including the public authority holding it). Trade secrets are one example of commercial interests but the concept is far wider. Commercial interest relates to a person’s ability to participate competitively in a commercial activity i.e. the purchase and sale of goods or services.
16. In order for the exemption to be engaged Highways England would need to demonstrate that disclosing the information would result in some identifiable commercial prejudice which would, or would be likely to, affect one or more parties. Section 43(2) FOIA is a qualified exemption and is therefore subject to the public interest test.
17. Highways England has confirmed to the complainant that it holds information falling within the scope of his request. It has provided the information to the Commissioner and she has reviewed it. It contains particular contractual terms relating to the provision of service. The Commissioner is satisfied that the withheld information relates to a commercial activity and falls within the scope of the exemption.
Likelihood of prejudice occurring
18. The ICO has been guided on the interpretation of the phrase ‘would, or would be likely to’ by a number of Information Tribunal decisions. The Tribunal has been clear that this phrase means that there are two possible limbs upon which a prejudice based exemption can be engaged; i.e. either prejudice ‘would’ occur or prejudice ‘would be likely to’ occur.
19. With regard to ‘would be likely to prejudice’, the Information Tribunal in John Connor Press Associates Limited v The Information Commissioner (EA/2005/0005) confirmed that ‘the chance of prejudice being suffered should be more than a hypothetical possibility; there must have been a real and significant risk’ (Tribunal at paragraph 15).
20. With regard to the alternative limb of ‘would prejudice’, the Tribunal in Hogan v Oxford City Council & The Information Commissioner (EA/2005/0026 & 0030) commented that ‘clearly this second limb of the test places a stronger evidential burden on the public authority to discharge’ (Tribunal at paragraph 36).
21. In its submission to the Commissioner, Highways England said that” Disclosing this information would prejudice the commercial interests of Keir and would allow Keir’s competitors to use the same methodology when submitting tenders to HE or similar organisations.”
The Commissioner understands from this that Highways England considers that disclosure would prejudice a particular third party’s commercial interests. It therefore appears to the Commissioner it is relying on the second limb of the prejudice test, which places a stronger burden on the authority to demonstrate engagement.
22. Highways England’s brief submission to the Commissioner merely refers to the public interest arguments it gave to the complainant, and doesn’t really touch on why it considers the exemption to be engaged apart from that quoted at paragraph 26 above. The public interest arguments are dated 14 December 2016 which predates the request dated 3 March 2017 (although the Commissioner is aware that this request followed a previous similar request made back in October 2016). Highway England said that the public interest arguments were conducted in December 2016 for a similar FOI request in relation to agreed rates. It used the same public interest test conducted on 14 December 2016, as this request was in relation to the same subject i.e. rates and costs, and the arguments for withholding the information were the same. The Commissioner is concerned with the approach taken by Highways England as requests should be dealt with on a case by case basis, with thought given to the timing of the request and any change in circumstance. However as the Commissioner must first consider whether or not the exemption is engaged, only if it is engaged must the Commissioner proceed to consider the public interest arguments.
23. Other than this, Highways England’s response to the complainant nor its internal review provide further explanation as to what the nature of any prejudice might be.
24. Highways England’s submission makes no reference to the specific withheld information; nor does it identify any specific prejudice to commercial interests which disclosure would cause. No link is made between disclosure of the information and explicit, demonstrable prejudicial effects.
25. Again, as in previous case reference FS50666011 the Commissioner is left with the impression that Highways England has sought to withhold the information on an entirely general basis with no regard for the details of the information or the evidential threshold required to demonstrate that 43(1) and/or 43(2) FOIA are engaged.
26. Highways England’s submission to the Commissioner was due on 7 August 2017 and it did not arrive until 22 August 2017. As the submission was particularly brief, the Commissioner wrote back to Highways England on 29 August 2017 asking for further detail to support its position. On 6 September 2017, Highways England confirmed that it had written to the third party contractor whose commercial interests it considers would be prejudiced to obtain their submissions in support. Despite two further letters from the Commissioner dated 5 October 2017 and 9 November 2017 no further detailed arguments have been provided. The Commissioner considers that Highways England therefore had ample opportunity to make a satisfactory submission.
27. The Commissioner further considers that, where a public authority has failed to provide adequate submissions, it is not her responsibility to generate arguments on its behalf or to facilitate its application of an exemption. She considers that the duty to provide information under the FOIA or, in cases where information is being withheld, to show that an exemption is engaged, rests with the public authority in receipt of the request.
28. In this case, the Commissioner finds that Highways England has failed to demonstrate that disclosing the information would prejudice the commercial interests of its third party contractor and that section 43(2) FOIA is not therefore engaged.
29. The Commissioner has not therefore gone on to consider the public interest test with regard to section 43(2) FOIA.
Right of appeal
30. Either party has the right to appeal against this decision notice to the First-tier Tribunal (Information Rights). Information about the appeals process may be obtained from: First-tier Tribunal (Information Rights)
GRC & GRP Tribunals,
PO Box 9300,
LEICESTER,
LEI 8DJ
Tel •. 0300 1234504
Fax: 0870 739 5836
Email: GRC@hmcts.gsi.gov.uk
Website: www.justice.gov.uk/tribunals/general-reg...
31. If you wish to appeal against a decision notice, you can obtain information on how to appeal along with the relevant forms from the Information Tribunal website.
32. Any Notice of Appeal should be served on the Tribunal within 28 (calendar) days of the date on which this decision notice is sent.

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

Peter Silverman left an annotation ()

Well done Mr Ashraf

Thank you Sarah for the annotation

Peter Silverman
www.cleanhighways.co.uk

Mr P Swift left an annotation ()

You may wish to review the responses you have received in light of the ICO dictating rates were to be supplied, see: http://www.englandhighways.co.uk/aiw-rat...