Clarifications

85. Can you please provide an update on the clarification questions below, which were raised on May 22nd; 1. Third party rights. Under clause 19, third party rights are excluded under each Contract "unless stated (referring to CRTPA)". A number of the provisions in the Core Terms and certain Schedules are in favour of CCS and the Buyer and relate to the Goods and Services being provided under the Order Contact. We assume that this is not intended to give the Buyer the ability to make a claim under the DPS Contract - or CCS the ability to make a claim under the Order Contract - given that these provisions do not refer to CRTPA (with the exception of the guarantee - see below our comments in relation to Joint Schedule 8) and there are no provisions dealing with double recovery. Can you please confirm that our understanding is correct? Can you also please confirm that the Buyer can agree changes with the Supplier under the Order Contract without the express consent of CCS. If our understanding above is not correct and there are effectively two rights of recovery in some cases (i.e. the Buyer and CCS can pursue the Supplier under both the Order Contract and the DPS Contract), then can you please advise on the following: i) Where CCS make a claim under the Order Contract, can you please confirm that the terms of the Order Contract would be as agreed between the Buyer and the Supplier, that the Supplier's aggregate liability to both parties will be the lability that it has in clause 11 in respect of the Order Contract and that in line with general legal principles there can be no double recovery (whether under the Order Contract and/or the DPS Contract); and (ii) Where the Buyer has agreed changes to the terms in the Order Contract and the Buyer makes a claim under the DPS Contract, it would appear that the Buyer can potentially pursue the Supplier on the basis of the unamended terms. We assume that this cannot have been the intention, and that this supports the case that the Buyer can only make a claim under the Order Contract. Please confirm that our understanding is correct. If our understanding is not correct and the Buyer could pursue the Supplier on the basis of the unamended terms under the DPS Contract, please confirm that the Supplier's aggregate liability to both parties shall be the lability that it has in clause 11 in respect of the DPS Contract and that in line with general legal principles there can be no double recovery (whether under the DPS Contract and/or the Order Contract). Finally, whilst not specifically relating to third party rights, but a on a related point, where the Buyer has agreed changes to the terms in the Order Contract, can CCS make a claim under the DPS Contract on the basis of the unamended terms? As noted above, a number of the provisions cover the provision of the Goods and Services and this would appear to give CCS the ability to make a claim under the DPS Contract in relation to the Supplier's failure to deliver Goods / Services to a particular Buyer (see e.g. clause 3.1.1). We assume that this is not the intention and that CCS should only pursue the Supplier under the DPS Contract where the Supplier has failed to comply with an obligation affecting CCS. If this is not correct and CCS could make such a claim under the DPS Contract in relation to the Supplier's failure to deliver Goods / Services to a particular Buyer, then we assume that the Supplier's liability to both parties would still be capped in line with the liability cap under clause 11.1 of the DPS Contract. Please confirm that this is the case. However, is it intended that the Buyer's losses would be recoverable under the DPS Contract by CCS pursuant to clause 11.3? Further, certain of the indemnities are unlimited and not subject to the carve out in clause 11.3, this could result in the situation where CCS could pursue the Supplier on an unlimited basis in respect of a obligation / event where the Buyer had agreed a different approach (e.g. the Buyer could agrees to change the definition of an IPR Claim for the purposes of clause 9.5). Again, this does not appear to be equitable and so we assume that this was not the intention and supports the position that CCS cannot make a claim under the DPS Contract in respect of losses suffered by a Buyer (which should rightly be recoverable under the Buyer Contract). We would appreciate it if you could confirm that this is the case. 2. Guarantee Can you please confirm what criteria will be used to determine whether or not a DPS Guarantee will be required for the DPS Contract pursuant to Joint Schedule 8? Under Joint Schedule 8 "DPS Guarantee" means a deed of guarantee in favour of CCS and all Buyers..." . Can you please explain why this definition refers to all Buyers. Each Buyer is able to require an Order Guarantee. This definition suggests that, where a DPS Guarantee is required, the Supplier is effectively giving a guarantee in respect of all future Buyers. Is that the intention? The same issue arises in relation to the definition of "Beneficiary(s)". Para 2.4 of Joint Schedule 8 states that notwithstanding Clause 19 (Other people's rights in this contract), this Schedule (Guarantee) is intended to confer benefits on Buyers and is intended to be enforceable by Buyers by virtue of the CRTPA." The template guarantee also recognises the third party rights of the Beneficiary. The Schedule requires the Supplier to provide a DPS Guarantee (where required by CCS) and an Order Guarantee (where required by the Buyer) and the Schedule is common to both the DPS Contract and the Order Contract. As such, on the face of it, no third party rights are required. Is the intention here to allow all Buyers to pursue the DPS Guarantor under the DPS Guarantee (even although the Buyer can elect to put in place an Order Guarantee)? If that were to be the case, the same issues that we flagged in relation to Clause 19 would arise (namely (i) the Buyer will be able to pursue the DPS Guarantor in respect of the unamended terms of the DPS Contract, in circumstances where the Buyer has agreed changes to the terms with the Supplier in respect of their Order Contract; (ii) there are no provisions dealing with double recovery; and (iii) there are no provisions making clear that the Supplier's aggregate liability to CCS and All Buyers shall be no more than it would have been under the DPS Contract). We note that paragraph 3 in Joint Schedule 8 is numbered paragraph 2. We assume that this is an error. Regards

84. Sorry to chase, please can you clarify which certifications are required to be awarded a place on the agreement, for example is it ISO 27001 and cyber essentials.

83. Can you please provide an update on the status of the clarification questions raised by Capita (Martin McGrath) on 22nd May? Regards

82. For the avoidance of doubt, please can you clarify which certifications are required to be awarded a place on the agreement, for example it is ISO 27001 and Cyber Essentials?

81. Hi, In relation to the question 'Does your organisation have a fully comprehensive occupational health screening service in place?', are you looking for data on whether we have an occupational health provision (and then the confirmation letter and contract start and end dates for that), or looking for information on actual health screenings provision such as health assessments? Thanks

80. Hi team, in regards to Cyber Essentials, we have ISO270001 which covers the scope of Cyber Essentials. However, we see from other responses that suppliers must have this certification at point of award of first contract. Please can you confirm is ISO270001 specifically is sufficient or will suppliers have to obtain this certification?

79. DPS Order Schedule 8 (Business Continuity) is replaced by DPS Order Schedule 14 (Service Levels) on the portal, presumably in error. Could you please provide access to DPS Order Schedule 8 (Business Continuity).

78. Can you please confirm what criteria will be used to determine whether or not a DPS Guarantee will be required for the DPS Contract pursuant to Joint Schedule 8? Under Joint Schedule 8 "DPS Guarantee" means a deed of guarantee in favour of CCS and all Buyers..." . Can you please explain why this definition refers to all Buyers. Each Buyer is able to require an Order Guarantee. This definition suggests that, where a DPS Guarantee is required, the Supplier is effectively giving a guarantee in respect of all future Buyers. Is that the intention? The same issue arises in relation to the definition of "Beneficiary(s)". Para 2.4 of Joint Schedule 8 states that notwithstanding Clause 19 (Other people's rights in this contract), this Schedule (Guarantee) is intended to confer benefits on Buyers and is intended to be enforceable by Buyers by virtue of the CRTPA." The template guarantee also recognises the third party rights of the Beneficiary. The Schedule requires the Supplier to provide a DPS Guarantee (where required by CCS) and an Order Guarantee (where required by the Buyer) and the Schedule is common to both the DPS Contract and the Order Contract. As such, on the face of it, no third party rights are required. Is the intention here to allow all Buyers to pursue the DPS Guarantor under the DPS Guarantee (even although the Buyer can elect to put in place an Order Guarantee)? If that were to be the case, the same issues that we flagged in relation to Clause 19 would arise (namely (i) the Buyer will be able to pursue the DPS Guarantor in respect of the unamended terms of the DPS Contract, in circumstances where the Buyer has agreed changes to the terms with the Supplier in respect of their Order Contract; (ii) there are no provisions dealing with double recovery; and (iii) there are no provisions making clear that the Supplier's aggregate liability to CCS and All Buyers shall be no more than it would have been under the DPS Contract). We note that paragraph 3 in Joint Schedule 8 is numbered paragraph 2. We assume that this is an error.

77. Under clause 19 of the Core Terms, third party rights are excluded under each Contract "unless stated (referring to CRTPA)". A number of the provisions in the Core Terms and certain Schedules are in favour of CCS and the Buyer and relate to the Goods and Services being provided under the Order Contact. We assume that this is not intended to give the Buyer the ability to make a claim under the DPS Contract - or CCS the ability to make a claim under the Order Contract - given that these provisions do not refer to CRTPA (with the exception of the guarantee - see below our comments in relation to Joint Schedule 8) and there are no provisions dealing with double recovery. Can you please confirm that our understanding is correct? Can you also please confirm that the Buyer can agree changes with the Supplier under the Order Contract without the express consent of CCS. If our understanding above is not correct and there are effectively two rights of recovery in some cases (i.e. the Buyer and CCS can pursue the Supplier under both the Order Contract and the DPS Contract), then can you please advise on the following: i) Where CCS make a claim under the Order Contract, can you please confirm that the terms of the Order Contract would be as agreed between the Buyer and the Supplier, that the Supplier's aggregate liability to both parties will be the lability that it has in clause 11 in respect of the Order Contract and that in line with general legal principles there can be no double recovery (whether under the Order Contract and/or the DPS Contract); and (ii) Where the Buyer has agreed changes to the terms in the Order Contract and the Buyer makes a claim under the DPS Contract, it would appear that the Buyer can potentially pursue the Supplier on the basis of the unamended terms. We assume that this cannot have been the intention, and that this supports the case that the Buyer can only make a claim under the Order Contract. Please confirm that our understanding is correct. If our understanding is not correct and the Buyer could pursue the Supplier on the basis of the unamended terms under the DPS Contract, please confirm that the Supplier's aggregate liability to both parties shall be the lability that it has in clause 11 in respect of the DPS Contract and that in line with general legal principles there can be no double recovery (whether under the DPS Contract and/or the Order Contract). Finally, whilst not specifically relating to third party rights, but a on a related point, where the Buyer has agreed changes to the terms in the Order Contract, can CCS make a claim under the DPS Contract on the basis of the unamended terms? As noted above, a number of the provisions cover the provision of the Goods and Services and this would appear to give CCS the ability to make a claim under the DPS Contract in relation to the Supplier's failure to deliver Goods / Services to a particular Buyer (see e.g. clause 3.1.1). We assume that this is not the intention and that CCS should only pursue the Supplier under the DPS Contract where the Supplier has failed to comply with an obligation affecting CCS. If this is not correct and CCS could make such a claim under the DPS Contract in relation to the Supplier's failure to deliver Goods / Services to a particular Buyer, then we assume that the Supplier's liability to both parties would still be capped in line with the liability cap under clause 11.1 of the DPS Contract. Please confirm that this is the case. However, is it intended that the Buyer's losses would be recoverable under the DPS Contract by CCS pursuant to clause 11.3? Further, certain of the indemnities are unlimited and not subject to the carve out in clause 11.3, this could result in the situation where CCS could pursue the Supplier on an unlimited basis in respect of a obligation / event where the Buyer had agreed a different approach (e.g. the Buyer could agrees to change the definition of an IPR Claim for the purposes of clause 9.5). Again, this does not appear to be equitable and so we assume that this was not the intention and supports the position that CCS cannot make a claim under the DPS Contract in respect of losses suffered by a Buyer (which should rightly be recoverable under the Buyer Contract). We would appreciate it if you could confirm that this is the case.

76. Can the file size limit please be increased to 10Mb, as some documents required to support evidence are greater than 5Mb and therefore cannot be uploaded?

75. We refer to Joint Schedule 7 (Financial Difficulties), clause 3.3 - We wouldn't be able to provide requested information externally based on unpublished results as we are part of a listed Group. We only can provide an audited and published data. Can you confirm that this would be acceptable?

74. We refer to Joint Schedule 7 (Financial Difficulties), all the notification requirements seems onerous and not always possible to comply, especially clause 4.3.1 requesting meeting within 3 Working Days. We would suggest notification requirements of 30 days.

73. We refer to Joint Schedule 7 (Financial Difficulties), Part f of the Financial Distress definition bullet iv - cancellation or suspension of indebtedness - how do things like suspension of VAT payments under COVID19 fit into this - would that be a trigger?

72. We refer to Joint Schedule 7 (Financial Difficulties), part (f) of the Financial Distress definition. The clause refers to "financial indebtedness" but does not define it, nor does it indicate any level of materiality. Would it mean that even £200 would be a trigger? Is there expectation to start discussion with CCS on any such occasion? Could we have a more pragmatic approach and apply any definition of "financial indebtedness" and a level of materiality?

71. We refer to Joint Schedule 7 (Financial Difficulties) - Annex 2 together with "Credit Rating" definition and "Financial Distress Event" definition, bullet a). As per Annex we should use the "Failure Rating" - we have assumed that to be the failure score, which is a score out of 100 to measure how likely a business is to fail in the next 12 months and gives us the "risk indicator" part of our credit rating. Our current failure score is 97. A 10% fall would take us to 87 - which would still give us a risk indicator of 1 (failure score in the range of 86-100)- the best a company can have - it certainly wouldn't indicate any type of distress, but under current definition it would be. It means that we would need to go into conversation even being in the best score possible, which isn't really pragmatic. Therefore we suggest to use less sensitive measure, like a drop of two or more levels in our credit rating, which would be a more pragmatic approach. Could you consider amending Annex 2 and use "Credit Rating" instead of "Failure Rating" and the threshold being to fall by two levels?

70. We refer to DPS Schedule 7 cl. 2.2.1 which allows to reject the bid, but on the other hand as per DPS Schedule 4 cl.3.5 - repeated failure to bid may result in suspension from DPS. Can you please confirm if Supplier can reject the Order?

69. 129. Do you meet the minimum level of economic and financial standing and/or minimum financial threshold specified within the evaluation criteria for this procurement? As we are signing up to become a supplier and this is not a response for a particular RFP, could you please tell us what this question is referring to? The other query I had was do we mark yes or no on the following question as we fall below the audit threshold due to the company size but we can still provide our accounts: 127. Are you able to provide a copy of your audited accounts for the last two years, if requested?

68. Hello, Within the webinar I asked the question whether we can amend the services we have stated we can provide now that we are already on the DPS. Please could you advise if this is possible, and if so, how to do this?

67. Clauses 7.1 - Please can the Authority consider that although the Supplier is able to provide reasonable co-operation to the Authority in the event that it receives a claim under pursuant to clause 7.1, the Supplier's contractual obligations should not extend to assisting the Authority in dealing with such claims as that may go beyond the intended scope of services. The Supplier would also not be permitted to disclose information about third parties.

66. Clause 4.1 - Would the Authority be willing to specify that insurance certificates will be an acceptable form of evidence that the Insurances are in force as per the requirements?