Publication - FOI/EIR release

National Highways Sector Schemes (NHSS) contractor compliance: EIR release

Published: 3 Jun 2020

Information request and response under the Environmental Information (Scotland) Regulations 2004

Published:
3 Jun 2020
National Highways Sector Schemes (NHSS) contractor compliance: EIR release
FOI reference: FOI/202000020273
Date received: 1 May 2020
Date responded: 1 Jun 2020
Information requested

"1. Do Transport Scotland, or its contractors, have the means to check and record a contractor's compliance with the National Highways Sector Schemes before and after award of contract?
If so, would it be possible to give us the following information:

2. Details of all contracts awarded on behalf of each Transport Scotland Area for the last four years issued under the NHSS Sector Scheme contracts
3. Details how many of these contracts have been awarded to accredited and NHSS compliant organisations?
4. How many of these contracts have been awarded to non-NHSS accredited and non-compliant organisation, via contractors retained to carry out more extensive works?
5. Confirmation of your, or your contractors, audit requirements to ensure that such contracts are issued to NHSS accredited and compliant companies.
6. How many times have non-compliant products, and companies who offer such products, been used on contracts awarded in each Transport Scotland Area?
7. How many times have “repeat companies” who liquidate and offer no protection or further warranty to the client been used on contracts awarded in each Transport Scotland Area?
8. How many times Part 1 Claims have been paid due to the above?"

A further clarification confirmed that, in relation to point 2 above, you required the following specific details of each scheme/contract:
"• Date
• Size (£ value) of the Fencing content if possible, if not overall value.
• Type of Fencing
• Main Contractor (Plus Fencing sub-Contractor if known)
• Any check on the NHSS accreditation of the Fencing Contractor used? "

Response

As the information you have requested is 'environmental information' for the purposes of the
Environmental Information (Scotland) Regulations 2004 (EIRs), we are required to deal with your request under those Regulations. We are applying the exemption at section 39(2) of the Freedom of Information (Scotland) Act 2002 (FOISA), so that we do not also have to deal with your request under FOISA.
This exemption is subject to the 'public interest test'. Therefore, taking account of all the circumstances of this case, we have considered if the public interest in disclosing the information outweighs the public interest in applying the exemption. We have found that, on balance, the public interest lies in favour of upholding the exemption, because there is no public interest in dealing with the same request under two different regimes. This is essentially a technical point and has no material effect on the outcome of your request.

To aid with this response I have retained the numbering from above:

1. Transport Scotland can request evidence of the Operating Company’s, or any of their subcontractors, National Highway Sector Scheme certification at any time. In addition Transport Scotland’s independent auditor, the Performance Audit Group, can undertake audits of any element of the contract, including checking certification of a National Highway Sector Scheme. 
The Operating Companies are responsible for employing competent sub-contractors and undertake reviews of all sub-contractors prior to appointment including checks of relevant competence and qualifications. The Operating Companies are responsible for employing sub-contractors competent for the work they are being employed to undertake, including any necessary NHSS certification.
Our DBFO contracts have robust auditing programmes which allow checks to be carried out on the contractors compliance with NHSS. To ensure this compliance accreditation certificates are viewed before engagement, and yearly thereafter.

Also all organisations with NHSS registrations are registered on the Lantra Schedule of Suppliers website, which details the scope of each company registration. The website can be accessed using the following link https://www.scheduleofsuppliers.co.uk/.

2. Please see Annex A to this response for details of all contracts awarded on behalf of each Transport Scotland Area for the last four years issued under the NHSS Sector Scheme contracts. For the checks on the NHSS accreditation of the Fencing Contractor used, I can confirm that it is a requirement of the Design Manual for Roads and Bridges (DMRB) that all Contractors undertaking NHSS works are accredited. It is a requirement of Transport Scotland’s Design & Build Contract that the Contractor complies with the DMRB. The Engineer (site supervision team) monitor compliance with the contract.
For the schemes listed in Annex A, while our aim is to provide information whenever possible, in this instance Transport Scotland does not have some of the information you have requested. Therefore we are refusing this part your request under the exception at regulation 10(4)(a) of the EIRs. This is because, due to the number of schemes, Transport Scotland is not able to separate the fencing costs from the overall scheme value. Therefore, as requested, the overall scheme costs have been provided. 

Please also see Annex B to this response for details of all contracts awarded by our Major Projects branch. Under the terms of the exception at regulation 10(4)(a) of the EIRs (information not held), Transport Scotland is not required to provide information which it does not have. Transport Scotland does not have information on the dates the fencing contracts were awarded on the A9 Dualling: Kincraig to Dalraddy or the A9 Dualling: Luncarty to Pass of Birnam project. Transport Scotland is also unable to extract the value of the fencing content of each scheme and, as requested, have provided the overall scheme value.

This exception is subject to the ‘public interest test’. Therefore, taking account of all the circumstances of this case, we have considered if the public interest in disclosing the information outweighs the public interest in applying the exception. We have found that, on balance, the public interest lies in favour of upholding the exception. While we recognise there may be some public interest in the dates that these contracts were awarded, and the value of the fencing content of these schemes, clearly we cannot provide information which we do not hold.


3. All Fencing Contracts have been awarded to accredited and NHSS compliant organisations in the last four years.

4. While our aim is to provide information whenever possible, in this instance Transport Scotland does not have the information you have requested. Therefore we are refusing this part of your request under the exception at regulation 10(4)(a) of the EIRs. This is because all contractors undertaking NHSS works are accredited therefore none of these contracts have been awarded to non-NHSS accredited and non-compliant organisations, via contractors retained to carry out more extensive works. 

This exception is subject to the ‘public interest test’. Therefore, taking account of all the circumstances of this case, we have considered if the public interest in disclosing the information outweighs the public interest in applying the exception. We have found that, on balance, the public interest lies in favour of upholding the exception. While we recognise there may be some public interest in how many times contracts have been awarded to non-NHSS accredited and non-compliant organisations clearly we cannot provide information which we do not hold.

5. It is a requirement of the Design Manual for Roads and Bridges (DMRB) that all Contractors undertaking NHSS works are accredited. It is a requirement of Transport Scotland’s Design & Build Contract that the  Contractor complies with the DMRB. The Engineer monitors compliance with the contract on behalf of Transport Scotland. Our contractor is required to operate a quality management systems which meets the  requirements of BS EN ISO 9001, BS EN ISO 14001 and OHSAS 18001 and our contractor is subject to audit by external auditors to monitor compliance with management systems.

Transport Scotland also employ the Performance Audit Group to independently monitor and audit each Operating Company’s compliance with the Trunk Road Management and Maintenance Contracts. Due to the scale of the contracts audits are selected on a risk basis. Fencing has not been identified as a risk and therefore PAG have not specifically audited NHSS compliance for fencing however they have audited the  Operating Companies management of sub-contractors, which included the competence and qualifications of sub-contractors.

6. While our aim is to provide information whenever possible, in this instance Transport Scotland does not have the information you have requested. Therefore we are refusing your request under the exception at regulation 10(4)(a) of the EIRs. Transport Scotland does not have information on noncompliant products, and companies who offer such products that have been used on contracts contained in the attached Annexes.

This exception is subject to the ‘public interest test’. Therefore, taking account of all the circumstances of this case, we have considered if the public interest in disclosing the information outweighs the public interest in applying the exception. We have found that, on balance, the public interest lies in favour of upholding the exception. While we recognise there may be some public interest in how many times non-compliant products and companies who used such products have been used on the projects listed in the annexes clearly we cannot provide information which we do not hold. 

7. While our aim is to provide information whenever possible, in this instance Transport Scotland does not have the information you have requested. Therefore we are refusing your request under the exception at regulation 10(4)(a) of the EIRs. Transport Scotland does not have information on “repeat companies” who liquidate and offer no protection or further warranty to the client that have been used on contracts awarded that are listed in the attached Annex. 

This exception is subject to the ‘public interest test’. Therefore, taking account of all the circumstances of this case, we have considered if the public interest in disclosing the information outweighs the public interest in applying the exception. We have found that, on balance, the public interest lies in favour of upholding the exception. While we recognise there may be some public interest in “repeat companies” who liquidate and offer no protection or further warranty that have been used on contracts clearly we cannot provide information which we do not hold.

8. While our aim is to provide information whenever possible, in this instance Transport Scotland does not have the information you have requested. Therefore we are refusing your request under the exception at regulation 10(4)(a) of the EIRs. This is because we have not paid any Part 1 Compensation for schemes which were awarded fencing contracts in the period you are interested in.
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