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The combination of a specification which is both inadequate and virtually impossible to monitor in my opinion means that the new contract is inconsistent with the duty of the Secretary of State to ensure that the motorways in England are, so far as is practicable, kept clear of litter.

 

From: Peter Silverman [mailto:petersilverman@cleanhighways.co.uk]
Sent: 04 May 2012 15:03
To: Mike Penning (Under-secretary of State for Transport); mike.penning_mp@dft.gsi.gov.uk
Cc: justine.greening@dft.gov.uk; Will Gates (CPRE); John Read (Clean Up Britain)
Subject: Highways Agency new Asset Support Contract

Dear Mr Penning,

I wrote to you on 10th April drawing you attention to my serious misgivings over the new Highways Agency contract suggesting it would put the Secretary of State for Transport in breach of her duty under the Environmental Protection Act. I received a response from the Highways Agency executive responsible for drafting the contract for which I was most grateful. I subsequently posted a critique of this response on my web site. The purpose of this e-mail is to present you with a summary of where things now stand from my perspective and to suggest a way forward.

Under  EPA S89 the Secretary of State for Transport has to ensure that the motorways in England are, so far as is practicable, kept clear of litter and refuse.  In doing so she has to have regard to the Litter Code of Practice.

The Code says that “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“.

The Asset Support Contract specifies that the contractor has to maintain non paved areas (i.e. the verges where most of the litter sits) to Litter Code grade B (predominately free of litter apart from some small items). I have no argument with this.

However the corresponding “performance metric” says: “Restore to grade B from grade C (widespread distribution of litter with minor accumulations) within 28 days” and “Restore to grade B from Grade D (heavily affected by litter with significant accumulations) in 7 days”.

As any deterioration will only become apparent to the contractor after an inspection one has to add on the time between inspections. If it’s a week then significant accumulations of litter could remain in situ for 2 weeks and minor ones for over a month.  Adhering to the performance metric would therefore not deliver then intended outcome. The land would not be maintained to Grade B in line with the Code.  This is indeed that what one sees today on much of the network.

The 28 day response time has been taken from the Litter Code. This is of concern as the Code emphasises that “these (response times) should be regarded as a last resort as the levels should be maintained above an acceptable standard at all times”.

The Office of Government Commerce had said that “When an organisation has awarded a contract, it must monitor whether the service is being delivered to specification”. The regime laid down in the new contract cannot be monitored in any meaningful way. To decide whether a heavily littered section of verge constituted a breach of the contract an inspector would have to know both when it was last checked by the contractor and what state it was in at that time.

In contrast if the contract had laid down a cleansing schedule (e.g. weekly), in line with the expectations of the Litter Code, then inspections could take place shortly after a scheduled clean to check if the work had been done.

The Highways Agency have pointed out that the new contract also specifies “An Area Network that is clean and free from litter, refuse and/or obstructions”. This is however so vague as to be meaningless in the context of a commercial contract.

The combination of a specification which is both inadequate and virtually impossible to monitor in my opinion means that the new contract is inconsistent with the duty of the Secretary of State to ensure that the motorways in England are, so far as is practicable, kept clear of litter.

If you are not convinced may I suggest that you get independent advice on the adequacy of the cleaning sections of the contract from the Government Efficiency section in the Cabinet Office who have, I understand, taken on the work of the Office of Government Commerce.

I would be grateful if you could respond to this personally, preferably by e-mail, so that I am assured that my concerns have indeed  been brought to your attention.

Incidentally you can quickly access the relevant documents by actioning  “Highways Agency contracts” on the Main Menu of my web site.

I look forward to hearing from you.

 

Peter Silverman
www.cleanhighways.co.uk

 

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