Does the Highways Agency’s new Asset Support Contract put the Secretary of State For Transport in breach of her responsibility under S 89 (1) of the Environmental Protection Act 1990?
The Highways Agency has developed a new contact for the maintenance, including the cleansing, of its network which includes the motorways in England. The Asset Support Contract (ASC) will gradually replace the existing Managing Agent Contractor (MAC) contract.
The first ASC contract was awarded to Atkins Skanska JV in February and covers Area 2 (south west of England). I understand the North West region will be next and that tenders will be invited for the East Midlands, East Anglia and the South East during the year.
The contract incorporates their Asset Maintenance and Operational Requirements (AMOR) detailing the Highways Agency’s mandatory requirements for the delivery of routine maintenance and operational services. This newly developed document replaces the Highways Agency’s current Routine and Winter Service Code and Network Management Manual (RWSC & NMM).
I have studied Part 15 of AMOR which deals with cleansing and have some very serious misgivings. They are as follows:
Under the old MAC contract there was “An overall requirement” specifying – “a network that is clean and free from litter, refuse and/or obstructions” (See the Winter & Routine Service Code).
In AMOR this is replaced by: “Provider outcome 1. The Area Network is predominantly free from litter, refuse and detritus“
“Clean and free from litter” has become “predominantly free from litter“.
There is no definition of “predominantly free of litter” in either the contract, the EPA or the associated DEFRA Litter Code of Practice.
Use of “last resort” response times
The Litter Code of Practice (9.1) says: “Duty bodies are expected to set their cleansing schedules so that they meet their duty to keep their relevant land clear of litter and refuse“. (“keep” is italicised in the Code).
9.4 of the Code says that “As a last resort, if acceptable standards of litter and refuse are not met, response times have been set… by which land must be returned to an acceptable standard“. Code 6.5 says “However these should be regarded as a last resort as the levels should be maintained above an acceptable standard at all times”
AMOR does not set any cleansing schedules. Instead it relies solely on these “last resort response times” .
No monitoring of performance is possible
The Office of Government Commerces’ publication “Contract management – Principles for service contracts” says “When an organisation has awarded a contract, it must monitor whether the service is being delivered to specification”.
Therefore the “deliverables“, to use the language of AMOR, have to be such that they can be monitored. Then, if they are not delivered to specification corrective action can be taken. Let us see how this could be achieved in the case of the verges alongside motorway main carriageways.
One could specify that they had to be cleaned once a week and that the contractor had to provide their cleansing schedules to the Agency. They could then check sample stretches of verge at the appropriate time to see if the promised service was being delivered. Simples!
Too simple, it would appear, for the Highways Agency. Instead of specifying any scheduled cleansing of these verges they use the Litter Code’s last resort response times to say that: “The verge has to be restored to grade B from grade C (widespread distribution of litter with minor accumulations) within 28 days”. If it reaches grade D (heavily affected by litter with significant accumulations) this has to be done in 7 days.
This begs a number of questions. When does the clock start? Presumably when an inspection has identified a problem. But how frequently are the inspections to be made? The contract does not say. How does the grading work? Is each 100 metre section inspected and given an average grade or would a single accumulation of litter in one spot trigger the clock? Why wait 28 days? These vergess can be litter picked safely without the need for traffic management and there are no issues of practicability or safety to consider.
The important point is how on earth would you monitor whether the contractor was delivering on this obligation. You would not know when any stretch of verge was to be cleaned or for how long it had been substandard. If you did random spot checks and found, say, that in 50% of cases the verges were below standard that would not prove anything. All of the adverse checks could have been made during the 28 day (or 7 day) period.
In my opinion the new contract puts the Secretary of State For Transport in breach of her responsibility under S 89 (1) of the Environmental Protection Act 1990 to ensure that the highways in question are kept, so far as is practicable, free of litter.
10th April 2012
Revised 12th April 2012