The purpose of this post is to critique Freda Rashdi’s (FR’s) response to my e-mail to Mike Penning of 10th April in which I concluded that the new contract will put the Secretary of State for Transport, Justine Greening, in breach of her obligations under S 89 (1) of the Environmental Protection Act.
FR is the Highways Agency’s Team Leader responsible for specifying cleaning requirements.
I agree with her that the ”overall requirement” of “a network that is clean and free from litter, refuse and/or obstructions” in the old MAC contract was not in the gift of the contractor and was therefore unfair. However replacing this with a requirement for the “Area Network” to be “predominantly free from litter, refuse and detritus“ is simply going from the “impossible to achieve” to the “impossibly vague”.
Audit Office Recommendations
FR says the National Audit Office (NAO) ‘Contracting For Highways Maintenance’ 2009 stated that the Agency should; “review the standards documents underpinning MAC contracts to ensure they are outcome based as far as possible;” … These recommendations are to allow contractors to achieve value for money for the taxpayer, through innovation.
This makes a lot of sense. A good contract should specify outcomes. The contractor can then innovate to find the best way to deliver them.
Monitoring / Use of “last resort” response times
In the case of the verges alongside motorway main carriageways, the example I want to stick to, the outcome / deliverable could be that, once per week, each section has to be brought up to a specified level of cleanliness. A man with the clip board and digital camera could then make random checks to monitor the extent to which the service was being delivered. This would be in line with the recommendation of the Office of Government Commerce that “When an organisation has awarded a contract, it must monitor whether the service is being delivered to specification”.
I had criticised the new contract saying it relied solely on the Litter Code of Practice’s “last resort” response times and questioned how on earth you could monitor whether this supposed outcome was being delivered.
In response FR has said the use of last resort response times “is not relied on solely” and ….“Meeting any Performance Requirement Level identified in these Maintenance and Operational requirements is not determinative of compliance with the Provider Outcomes. In other words, success at meeting the PRL could still mean that the provider fails at the Outcome level”.
Earlier in her response FR refers to “The structure of the outcome in AMOR” as being “predominantly free from litter”
Ok, so in addition to not solely relying on the last resort response times contractors have to maintain the verges predominantly free of litter.
But without a definition of “predominantly free of litter” how on earth will the man with the clip board monitor whether this outcome is being delivered?
FR says that “Monitoring of performance is a constant activity carried out by the Agency’s Service Delivery Teams”. All I can say is that when I ask the Agency for litter inspection reports I am told that they cannot be supplied as inspections are carried out by the contractors.
With no clear performance standards and no effective monitoring the Highways Agency are in effect giving carte blanche to their contractors in respect to cleaning. The Secretary of state for Transport is therefore failing in her duty to ensure, that the roads covered by the new contracts are, so far as is practicable, kept free of litter.
3rd May 2012