Clarifications
There are 275 clarifications for this DPS
86. CLARIFICATION QUESTIONS: Call Off Contract Terms for Apprenticeship Training Dynamic Marketplace (RM6102) Clause 31.4 - Supplier Termination Rights Please could some clarity be provided as to why a Supplier would be expected to provide the services if a Customer has failed to pay an undisputed sum in accordance with clause 31.1 and a termination notice has been validly served.
CCS can confirm this is a standard clause and will remain unchanged.
Answered
08/06/2019 15:58
85. CLARIFICATION QUESTIONS: Call Off Contract Terms for Apprenticeship Training Dynamic Marketplace (RM6102) Clauses 23.25 to 23.39 inclusive and Contract Schedule 8 - Data Protection The bidder believes that there will be a controller to controller relationship (and not a controller to processor or even a Joint Controller relationship) between a Customer and the bidder under the definitions set out in the current data protection legislation. The bidder is a higher education institution and a public body. Where a Customer is processing the Personal Data of the apprentices as employees it will be the controller and where the bidder is processing the Personal Data of the apprentices as students of the bidder on credit bearing programmes, the bidder will be the controller. The bidder cannot assume the role of data processor where it is deciding the purposes and means of data collection. In the case of the delivery of a course or programme, where it will be in position to decide what data is needed in order to deliver that course and administer an award, it will not be acting on the instructions of another party in the vast majority of cases. The bidder has its own obligations to administer awards and these cannot practically be dictated by a Customer. The bidder will have a direct relationship with data subjects, which may (and it should be assumed) extend to a relationship of confidence. For example, if a student were to declare a disability to it or access its confidential wellbeing services or any form of pastoral care (including information that may be provided in confidence to tutors for example) the bidder would not be able to provide/delete all data on the instructions of the Data Controller in these instances. In all these instances, the bidder would not 'ask consent' from the Controller before collecting any new data that may be gathered as part of this relationship with the bidder - this is not logical or workable. If data subjects exercised rights in relation to their data, it would not be possible to provide data of this nature to a Customer on demand without potentially breaching the duty of confidence. The data that will be required during the lifecycle of a delivered course, while definable to a degree, is very likely to be unpredictable. It would very much be dependent on what services the student accesses during their time on the course and, again, the purposes and means will ultimately be decided by the bidder in those instances. Students may also go onto (and would likely be invited) to become Alumni after their course ends. Again, it is the bidder that is responsible for this onward processing of data for its own purposes. The bidder also retains student records for other autonomous purposes connected to its public tasks and verifying studies that students have undertaken, again, this is not under the control of another party. The bidder also has its own retention periods in respect of this which would conflict with any requirements to delete data at the end of the service provision or similar. The bidder is strongly of the view that it will not be a data processor (or even joint controller) as a result of being a 'supplier' of apprenticeship training services. The parties are acting as separate Data Controllers, who will share information for the purposes of meeting the aims of the scheme. This does mean the contractual clauses need to cover an understanding of what data will or must be shared, due diligence by both parties in terms of the security of data, and robust measures in place to communicate in instances of breach, exercising of rights and privacy notices. For the above reasons the bidder believes the terms in clauses 23.25-23.39 (Data Protection) do not reflect the reality of what would actually be a controller to controller data processing scenario, or that they are ultimately in the best interests of the apprentices themselves. If the bidder is successful, please advise if the provisions of clauses 23.25-23.39 and Contract Schedule 8 could be adjusted by Customers to reflect controller to controller data protection provisions.
CCS can confirm the contract's data protection obligations apply narrowly and only to the data supplied as part of the specific apprenticeship training provider services and that issues of Alumni association etc are matter solely between the potential supplier and the student. CCS could adopt the position that, there is a wide discretion within the Contract terms to draw up a data controller/data processor or joint controller agreement which could address some of the issues.
Answered
27/06/2019 10:33
84. CLARIFICATION QUESTIONS: Call Off Contract Terms for Apprenticeship Training Dynamic Marketplace (RM6102) Clause 23.20 - Transparency Please confirm if "Contract Reference 10" is the correct reference in the last line of this clause, or whether it should be "Contract Reference 9".
CCS can confirm that the Contracts Terms (Attachment 7) within the bid pack have been downloaded for review, and we can confirm that the contract schedule referenced in clause 23.20 (Transparency) states Contract Schedule 10.
Answered
10/06/2019 16:56
83. CLARIFICATION QUESTIONS: Call Off Contract Terms for Apprenticeship Training Dynamic Marketplace (RM6102) Clause 23.19 - Transparency Please confirm which Contract Schedule is meant to be referenced in this clause, as it currently reads "0".
CCS can confirm that the Contracts Terms (Attachment 7) within the bid pack have been downloaded for review, and we can confirm that the contract schedule referenced in clause 23.19 (Transparency) states Contract Schedule 10.
Answered
10/06/2019 16:55
82. CLARIFICATION QUESTIONS: Call Off Contract Terms for Apprenticeship Training Dynamic Marketplace (RM6102) Clause 7.3(d) - Provisions of the Goods and/or Services Please can you provide the missing clause reference at the end of the sentence.
CCS can confirm that clause 7.3(d) of the contract terms should read 'Suppliers own established procedures and practices to the extent the same do not conflict with the requirements of Clauses 7.3(a) - (c). CCS to amend the Contract Terms in due course and upload to the RM6102 Bid Pack
Answered
10/06/2019 16:53
81. CLARIFICATION QUESTIONS: Call Off Contract Terms for Apprenticeship Training Dynamic Marketplace (RM6102) Clause 1.4 - Definitions and Interpretations In the event of any conflict between the call off Contract Terms and the DMP Agreement, the wording indicates that any conflict will be resolved in accordance with the following order of precedence: (a) Contract Order Form; (b) Contract Terms; (c) DMP Agreement. This appears to conflict with the wording in clause 1.2.3 (Interpretation) of the DMP Agreement which indicates that in the event of any conflict the provisions of the DMP Agreement will prevail over the Contract Terms (or Contract as they are referred to the in DMP Agreement), save for any permitted refinement to the template order form and contract terms. Please can the Authority clarify whether the call off Contract Terms prevail over the DMP Agreement or vice versa.
CCS can confirm that the Contract Terms require an amendement, which will be undertaken in due course. Clause 1.4 of the contract terms shall read following the amendment as follows:
In the event of and only to the extent of any conflict between the Contract Order Form, the Contract Terms and the provisions of the DMP Agreement, the conflict shall be resolved in accordance with the following order of precedence:
a) The DMP Agreement;
b) the Contract Order Form; and
c) the Contract Terms.
Answered
27/06/2019 10:31
80. Is question 129 of the SSQ a pass/fail evaluation response?
CCS can confirm that Q.129 is NOT Pass/ Fail. However, bidders are required to meet the financial threshold score for the RM6102 Apprenticeships Training Dynamic Marketplace which is 35. Please refer to (section 8 - Economic and Financial Standing) of the DPS Needs document within the bid pack for further information regarding financial requirements/ guidance to support the RM6018 Apprenticeships Training Dynamic Marketplace. Q.129 is requesting for bidders to confirm if known if they meet this financial threshold.
Answered
08/06/2019 15:48
79. I note that the completion of the Generic Prospectus requires bidders to provide details of security management controls and processes. Please could Crown Commercial Services advise who will be able to view these generic prospectus documents?
CCS will be able to review supplier prospectus data as part of their compliance review and any awarding customers (buyers) who choose to conduct a 'rapid ' award procedure will have visibility to suppliers prospectus details to enable them to conduct their evaluation/ award.
Answered
08/06/2019 15:53
78. Is there any mechanism in the Customer contract that permits adjustment of prices?
CCS can confirm that in the event that contract charges change due to a 'Change in Law' or due to adjustments as per the 'Quarterly Adjustment Schedule', such changes will be formalised and become legally binding through completion and signing of Contract Schedule 11 (Variation Form) by both parties. However, variations to charges due to adjustments to the 'Quarterly Adjustments Schedule', are only permissable to those suppliers who have been awarded a contract(s) by a customer using the rapid award procedure, NOT the standard award procedure.
Answered
30/05/2019 10:12
77. Does Schedule 3 of Attachment 7 DMP Schedule 4 Annexes 1 and 2 Template Contract Order Form paragraph 6.1 enable that where a Supplier updates their prices in DMP Schedule 3 (DMP Prices and Charging Structure), Part A Pricing Matrix Quarterly Adjustment Schedule, that simultaneously their prices change and update the prices signed up to Customer Contracts or does this require the Variation Procedure in clause 13.3?
CCS can confirm that in the event that contract charges change increase to a 'Change in Law', such changes will be formalised and become legally binding through completion and signing of Contract Schedule 11 (Variation Form) by both parties. However the intention is that variations to charges due to adjustments to the 'Quarterly Adjustments Schedule', are only permissable to suppliers who are wanting to reduce their prices for new orders on existing or new contracts procurred through the rapid award procedure and does not require to be formalised via the variation procedure.
Answered
30/05/2019 10:12
76. Within the Attachment 7 DMP Schedule 4 Annexes 1 and 2 Template Contract Order Form, prices are required to be fixed for the duration of the Contract Period, however can the variation procedure at clause 13.3 be used to adjust prices?
As specificed at Contract Schedule 3 (Contract Charges, Payment and Invoicing), clause 6 - CCS can confirm that the Contract Charges on new orders via existing or new contracts shall only be varied (via the variation procedure at clause 13.3) due to a Specific Change in Law e.g. changes to the funding band, in relation to which the Parties agree that a change is required to all or part of the Contract in accordance with Clause 13.1 to 13.2 (Legislative Change) of Attachment 7 DMP Schedule 4 Annexes 1 and 2 Template Contract Order Form.
Answered
30/05/2019 10:11
75. Contract T&Cs: The template Contract Order Form provides the Customer a right to suspend the Contract for convenience or for default. Can you provide examples when this right could be exercised without contravening the ESFA Funding Rules?
CCS do not know under what circumstances the customer may be suspended in advance of such occurrence, however in any case they should not contravene the ESFA Funding Rules.
Answered
28/05/2019 06:24
74. Contract T&Cs: Can you confirm whether the Customer should have the right to suspend for Convenience as stated in clause 33.1? Can you confirm whether clause 33.1 should read "Where the Customer has the right to terminate [for material Default] this Contract, the Customer shall be entitled to terminate or suspend all of this Contract......"
Clause 33.1 does not provide a right to terminate for convenience. The clauses contained in section 30 deals with customer termination rights. You should review the section 30 clauses (with legal advice if you require) so you can understand the circumstances in which a customer can terminate the contract. Clause 33.1 provides, once a termination right has arisen, a mechanism to partially terminate the contract.
Answered
05/06/2019 14:35
73. Contract T&Cs: Can you confirm whether Clause 13.3 should read "Where a new or emergent standard is to be developed or introduced by the Supplier" not the Authority?
CCS can confirm that Clause 13.3 within the DPS Agreement shall remain unchanged as the reference to Authority is correct.
Answered
30/09/2019 11:47
72. Contract T&Cs: Can you confirm that where the Authority terminates for Default that the replacement Supplier pays the Management Levy?
The replacement supplier will pay the management charge on the apprenticeship levy funding they receive under the transferred arrangement.
Answered
28/05/2019 06:22
71. The Template Contract Order Form states that there is to be no price adjustment for the duration of the Contract, and it also states that the shortfall of any reduction in funding during the Contract term is borne by the Customer. When contracting under the RM3823 framework many Customers would not accept any liability for shortfall of funding. Are Customers aware of this new obligation and that failure to accept could result in a dispute and "Customer Cause" termination for failure to pay?
The RM3823 framework does not allow suppliers to price above the maximum levy funding band so there is no shortfall for customers to subsidise. This RM6102 allows customers to select below or above the maximum levy funding band and customers are required to subsidise any funding in excess of the maximum levy funding band in accordance with the ESFA funding rules. The arrangements and process is set out in the contract terms schedule 3 Contract Charges, Payment and Invoices Annex 2 Payment Terms/Profile, which is signed by both the customer and supplier.
Answered
28/05/2019 06:21
70. Regarding the Not Applicable Questions, we have answered these in error and are unable to reset this section. If we were to submit our application would any issues arise as a result of this error?
CCS can confirm that answering the not applicable questions will not impact on your RM6102 submission. Any response input to these questions will be disregarded.
Answered
21/05/2019 11:25
65. Can you please provide an example of what you wish to see in the hyperlink required to a quality report?
CCS can confirm that the Quality Assessment Agency (QAA) Report only appliers to bidders providing Higher Education and therefore won't be applicable to all bidders.
Answered
21/05/2019 11:10
64. When calculating the number of apprenticeships under Table 1 of the Pricing Matrix, and therefore 'unlocking' further discounts, will this be calculated as a cumulative total across overall activity under the DMP, or as per individual employer call-off agreement in isolation?
CCS can confirm, that this will be calculated as per individual or group of employers under each call-off agreement.
Answered
20/05/2019 15:11
63. Hello, On completing the SQ and progressing to the next part of the application process, we have a query regarding one of the Pass/Fail questions: "Q.8: Please confirm that, within the past three years, anywhere in the world, that you, your organisation or any other person who has powers of representation, decision or control in the organisation have not breached data protection obligations." Please could we check, does CCS wish for this question to be included under grounds for automatic rejection or for information? This on the basis that it is unlikely that any organisation will be able to say that they have not had a contravention of the GDPR in some minor way. For example, not responding to a subject access request on time is a breach; holding inaccurate data, e.g. because a student or staff member inputs their mobile number incorrectly on our self-service systems is a breach; amongst other similar incidents. Are details available regarding how CCS defines a breach for the purposes of the question? We understand that even those organisations that have had significant breaches can still adequately protect data; and that it depends on the circumstances of the breach, the remedial action that was taken, and the measures put in place to prevent it happening again. Thank you
CCS can confirm that question 8 of the standard selection questionnaire is PASS/ FAIL. In the event that an organisation provides a negative response, meaning they have FAILED this question, CCS will review the response provided to determine if the bidder explanation is deemed acceptable. The bidder will enter assessing stage whilst CCS assess the bidder response in this instance. If CCS are satisfied with the bidder response, CCS will allow the bidder to continue with their RM6102 submission.
Answered
21/05/2019 14:45
