Highways England Compromised?

Are Highways England so compromised as to be unable to operate effectively?  If so, there is potential for this to affect all highway projects; it is difficult to understand how the Authority or holders of public office could act in the public interest. Highways England appears to have placed themselves under an obligation that may inappropriately influence them in their work. A lack of accountability and openness is not comforting.

Since 2014, Highways England has failed to have its contractor, Kier Highways Ltd., comply with the Area 9 contract insofar as billing drivers, fleets and hauliers or their insurers (third parties) are concerned. Instead, they permitted Kier to utilise a profiteering process that saw a 5-fold (at least) overstatement using their non-contract compliant process ‘1153’ until 10/2015.

That there was a change of charging process reinforces the contract non-compliance; why a variation when the contract sets out a single, simple (pleasingly so) process? 

The new 10/2015 process saw Kier utilise another contract non-compliant process, exaggeration in another guise, again permitted by Highways England. But how would anyone know Kier were not complying with the contract?  Only Kier and Highways England were privy to the knowledge there was a shield for Third Parties, a means by which a driver, fleet, haulier or their insurer, should be charged ‘no more than’. The contractually agreed process was kept secret, not mentioned to those people who needed it – and coincidentally, Kier did not comply from day one, they never have.  

The Authority placed the contract and Appendices on-line but ‘overlooked’ making the Annexes public. No one referred to or revealed the existence of ‘Appendix A’ despite our substantial writing about concerns. In 01/2017 we discovered ‘Appendix A to Annex 23’ and were able to state the contract was not being complied with, that Kier, in the name of Highways England, was making false statements to the Court.  

In 2020, rather than have Kier comply with Appendix A which protected Third Parties, Highways England varied the contract to assist their contractor – enable higher charge rates. This also applied to Areas 6&8 which were ‘gifted’ to Kier when Amey handed it back 04/2017, unable to make money from it … no Deed of Variation for Amey? 

South Wales Court (Cardiff) has recently considered submissions on multiple Kier cases, a decision has yet to be produced. However, while Highways England stated these claims had been billed in accordance with Appendix A, they were not.

We have explained Kier’s conduct, specifically in relation to claiming uplifts on operatives hours, appears to amount to fraud. There is nothing complicated about this; claiming for a cost you do not incur. Kier charge a 50% uplift to Third Parties (not the Authority) when their AIW operatives work after 5pm of a weekday claiming they pay the employees this – the staff state they are not paid this sum and even overtime is at a flat rate. Kier is prepared to misrepresent facts to Third Parties and the Courts to secure payment of this imaginary loss.

Kier have also been submitting false cost information to Highways England – why? We were informed (in response to a FoIA request) there was a pain/gain share associated with the contract; that if the contractor recovered above a threshold there would be a reduction in their monthly payment. Yet when we identified Kier submitting false claim costs that would affect this arrangement, rather than investigate, the Authority U-turned; there was no such process. Possibly not … but why is Kier overstating costs to the Authority, submitting false figures conveying recovery at less than 'cost + uplift' when in fact they are receiving substantially more?

The above is in addition to the multiple exaggerations associated with claims that see Third Parties charged large sums for repairs, the same tasks billed to the Authority using substantially lower rates. To quote a Judge:

• ‘It seems to me that the only sensible interpretation of the authority is that it relates to cost of repair to Highways England. Otherwise it would not reflect the measure of damages by reference to diminution in value. It would be odd if a tortfeasor was liable to Highways England for diminution in value of a damaged chattel in one sum if sued by Highways England itself and in a different sum if sued by Highways England via (a contractor)

Yet the situation is ‘odd’ because a Third Party (tortfeasor) is charged more … and has been for years.

There is an abundance of evidence that all is not right. 21/06/2017 the Authority appointed their former Green Claims manager to investigate the contract non-compliance and fraud. KPMG were instructed (project Verde) / but there has been no change.

Furthermore, it appears KPMG failed to notice that, whilst the issue to be investigated was one of the rates, the Authority had no agreed rates with any contractor (since 2012) for repairs to the Highways. Or maybe KPMG did not notice the absence of a schedule of rates because one existed!  

Since 2014, the Authority stated schedules of rates were held but 'commercially sensitive'. However, 12/2018, when their exemption fell away, a Tribunal finding against the Authority, faced with having to disclose the price list they could not; there was no such thing!

Really? The Authority states they received over 175 requests/reviews for rate-related information between 2013 and 2018 never once responding ‘not held’. Furthermore, we cannot only demonstrate consistent charging over years but in 2016 the Authority’s General Counsel informed us he had seen the rates! 

As for the KPMG report … it has been withheld – commercially sensitive, a matter with the ICO. 

Why is Highways England unwilling or unable to act? Possibly because having permitted the conduct, they are concerned about complicity, potentially liable for ￡millions? 

Our latest complaint … someone has altered a repair image, not that difficult to do, discover and evidence yet Highways England seem to believe this is a complicated process and are ignoring the obvious – why?