Clarifications
There are 275 clarifications for this DPS
184. Our legal advisor has asked the following clarification questions: Third Party IPR: As per clause 22.14 of the Call Off Terms, the Supplier shall procure that the Customer is granted a direct license in respect of any Third Party IPR on terms at least equivalent to those under which Supplier licenses its Background IP (including the right to assign/novate licences). If the Supplier cannot obtain for the Customer a Third Party IPR licence materially in accordance with the licence terms applying to its Background IPR, the Supplier shall: (a) notify the Customer in writing giving details of what licence terms can be obtained from the relevant third party and whether there are alternative providers which the Supplier could seek to use; and (b) only use such Third Party IPR if the Customer Approves the terms of the licence from the relevant third party. Questions: - What assurance do we have that CCS/Call Off Customer will approve the Third Party IPR license terms? - Is it possible for CCS to pre-agree these terms as part of the Framework submission? - Suppliers' operations are generally dependent on using some elements of Third Party IPR. If, at the stage of a direct award of a Call Off Contract, the Customer does not approve the Third Party IPR license terms, will the Supplier be deemed to be in breach of the Call Off Contract and/or Framework Agreement giving the right to the Customer to terminate?
CCS is not able to give any assurances as to the actions or behaviour of any Customer.
CCS is not able to make any agreement on behalf of any Customer.
CCS are not able to give advice on the legal effect of any clauses. You should take your own legal advice on the effect of the clause."
Answered
02/12/2019 09:28
183. Our legal advisor has asked the following clarification question: 1) Supplier Background IPR: As per clause 22.5 of the Call Off Terms, the Supplier grants to the Customer a perpetual, royalty-free and non-exclusive licence to use the Supplier Background IPR for any purpose relating to the Goods and/or Services (or substantially equivalent goods and/or services) or for any purpose relating to the exercise of the Customer's (or, if the Customer is a Central Government Body, any other Central Government Body's) business or function. Furthermore, according to clause 22.9 (a) of the Call Off Terms the Customer has the right to sublicense the above license to a third party (including a Replacement Supplier) for the same as above purposes. Finally, as per clause 22.11 of the Call Off Terms, the Customer may assign, novate or otherwise transfer its rights and obligations under the licence granted above to: a) a Central Government Body; or b) to any body (including any private sector body) which performs or carries on any of the functions and/or activities that previously had been performed and/or carried on by the Customer. Supplier Background IPR is defined in Contract Schedule 1 (Definitions) as the IPRs owned by the Supplier before the Contract Commencement Date and/or created by the Supplier independently of the Call Off Contract. Question: As the above provisions are currently drafted, the Supplier shall have to provide a perpetual, royalty free license to all its IP created before or independently of the applicable Call Off Contract, including the Supplier's software (even if such IP is irrelevant to the Project Specific IPR) to the Customer, any Central Government or private sector body and/or a Replacement Supplier (who may well be a competitor of the Supplier) for purposes which in a particular case may be irrelevant to the use of the Project Specific IPR (i.e. for any purpose relating to the exercise of the Customer's business or function). Please confirm if this is the intent of the said provisions and, if not, whether the said provisions will be amended to provide a more balanced approach to the protection of both parties' interests?
CCS is not able to give advice on the legal effect of any clauses. You should take your own legal advice on the effect of the clause.
This DPS went live on 30 April 2019 and suppliers have already entered into the DPS Agreement on the published terms. As a result, CCS is not able to make substantial changes to the DPS Agreement."
Answered
02/12/2019 09:27
182. 3.2.2 / 4.4 Where we have a large client base, we need to organise audit requirements accordingly. Please allow for prior notice period of at least 10 days.
CCS can confirm this is a standard clause and will remain unchanged.
Answered
24/10/2019 14:14
181. 18.5 (b) Key Sub-Contract "Our IT Service providers (suppliers) can fall under the definition of Key Sub Contractors. As we have a large client base, we propose changing this to notification (rather than consent) with an opportunity to object within 30 days. Working on individual consent is not always practical."
CCS can confirm this is a standard clause and will remain unchanged.
Answered
24/10/2019 14:13
180. "We note that the CCS shall have a right to terminate the DMP Agreement without cause at any time following 6 months and that a contracting authority (Customer) shall have a right to terminate a Contract without cause at any time. Is the CCS able to confirm whether there is any scope for Gen2 to agree for the inclusion of an initial minimum term, prior to its entering into any Contract? We are concerned about Gen2 in future diverting and ring-fencing its resources for a particular Contract, to the potential detriment of its other business, only for the Contract to then be terminated by a Customer early due to no fault of Gen2's. "
CCS can confirm this is a standard clause and will remain unchanged.
Answered
24/10/2019 14:07
179. "Is the CCS able to clarify to what extent a supplier shall have a right to remedy any default, including in performance of the Services, under the DMP Agreement and/or a Contract, prior to CCS and/or any Customer having a right to suspend or terminate the DMP Agreement and/or a Contract. "
Can you please confirm the exact clause for which you are referencing to enable CCS to further review.
Answered
24/10/2019 14:06
178. "Noting that suppliers shall be given the opportunity to notify a Customer of their unwillingness to tender for a Contract on receipt of an invitation to tender using the "Standard Award Procedure, is the CCS able to clarify whether, under Schedule 5 to the DMP Agreement, suppliers will be able to refuse any Contract awarded to them by a Customer (i.e. on receiving a signed order form from the Customer) under the "Rapid Award Procedure", or whether they shall be bound to accept such Contract under the DMP Agreement.
You are referred to the answer provided on 27 June and the CCS view on the scope of the data protection obligations. It is CCS' view that there is a discretion within the Contract terms for the parties to draw up a data controller / data processor or joint controller agreement. you should take your own advice on the nature of any such agreement.
Answered
24/10/2019 14:04
177. I can find no mention of a minimum level of economic and financial standing and/or minimum financial threshold specified within the evaluation criteria for this procurement to be able to answer question 129 - can I leave this unanswered?
You are referred to a previously answered question (63) - The financial threshold score for the RM6102 Apprenticeships Training Dynamic Marketplace 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.
Answered
24/10/2019 14:03
176. Is Cyber Essentials essential? We don't currently hold it, but will be working towards it in the not too distant future.
You are referred to a previously answered question (11) - CCS can confirm that suppliers will fail the SQ in the event that they are unable to provide a copy of their cyber certificate as detailed in the DMP Agreement (Clause 9). In the event suppliers do not have cyber certification, they are able to join the DPS at any time once the appropriate cyber certification has been achieved and can be evidenced.
Answered
24/10/2019 14:02
175. Please can you confirm that we only need to provide details of one example contract in question 133 and that we are to leave questions 134, 135 and 137 unanswered.
You are referred to a previously answered question (104) - CCS can confirm that Q133 is NOT APPLICABLE and therefore does not require a response. Please refer to the READ First DPS Needs document within the bid pack for all 'Not Applicable' questions, which can be located in section 9.
Answered
24/10/2019 14:01
174. Hello, Can you please clarify what the timeline is once an application has been submitted? We have read the read me first doucment but it doesnt say how long the checks will take. Is there still a timeline between submission and gaining approval to be on framework? Thank You.
CCS can confirm, that if an organisation successfully meets all of the selection criteria for the RM6102 DPS, then 'Appointed' DPS status can be confirmed the same day that an organisation submits their DPS application.
However, in the event that an organisation negatively answers one or more of the selection questions and enters 'assessing' stage or 'disabled' stage, as per the information provided in the READ First DPS Needs document which forms part of the RM6102 bid pack, CCS have 15 working days to process your DPS application in accordance with the PCR2015.
Kind regards
CCS
Answered
22/10/2019 08:10
173. Hello, Please could you clarify the following points: 1. Attachment 2 Management Information (MI) Reporting Template - Do we need to complete this as part of the submission? 2. Attachment 3 Financial Assessment Template - We have provided our audited accounts for the last two years. Does this mean we are exempt from completing the financial assessment template? 3. SQ Evidence Submission Queries - Do we need to provide the attachments for sections below for our submission to be compliant? o 177. Upload documentary evidence to support your commitment to developing and investing in skills, development and apprenticeships o 178. Upload documentary evidence to demonstrate the process that ensures your supply chain supports skills, development and apprenticeships in line with PPN 14/15 o 179. Upload documentary evidence for a list of relevant principal contracts for goods and/or services provided in the last three years o 180. Upload documentary evidence for a certificate for each principal contract for goods and/or services provided in the last three years Thank You.
"1) Attachment 2 - Management Information (MI) Reporting template is not required to be completed as part of the DPS application. This is the template that will be used by Appointed Suppliers to return to CCS on a monthly basis as stated in DPS Schedule 8 - DMP Management of the Dynamic Marketplace Agreement.
2) Attachment 3 - the Financial Assessment Template is for information only, as this is what will be used by CCS to conduct further enquiries if you fall below the required minimum financial threshold of 35 as stated in section 8 - Part 3 - Economic and Financial Standing of the 'READ FIRST RM6102 Dynamic Marketplace Needs v4.0'.
3) The evidence submission questions do not need to be completed at point of submission to be compliant, with the exception of Q
Question 177 - xxxx
Question 178 - xxxxx
Question 179 - is a not required question, so you do not need to upload any supporting evidence to this question.
Question 180 - is a not required question, so you do not need to upload any supporting evidence to this question."
Answered
20/11/2019 08:28
172. Can CCS please confirm whether Schedule 5: Staff Transfer (Part B) of the contract applies to EPA organisations and that this would only relate to defaulted contracts as opposed to natural termination at end of a contract?
The terms and conditions of the contract, in their entirety, apply to all suppliers. If you are unsure of the risk and implications of the staff transfer aspect, you should take advice.
Answered
15/10/2019 08:40
171. Please can CCS clarify whether potential suppliers on the framework are obliged to accept any contract awarded to them through the "Rapid Award Procedure"?
CCS would expect suppliers to be willing to accept contracts whichever process is used. DMP schedule 5 sets out the call for completion procedure. You should review that schedule to ensure you are comfortable with the process. You will note that para 7.2 of schedule 5 makes it clear that a contract for under the Rapid Award process is completed when the supplier signs and returns the Contract Order Form. CCS will monitor how suppliers engage with the DMPA and take action accordingly.
Answered
15/10/2019 08:39
170. Noting the previous question and CCS' clarification dated 27th June 2019 concerning the status of potential suppliers under data protection legislation and under any contract, please confirm whether a potential supplier providing an End Point Assessment Service as an EPAO may also draw up such terms on the basis of an independent data "controller" relationship between the supplier and customer, given the fact that such suppliers must inevitably also determine the purposes and means of processing in order to provide their service and shall also be bound by their own regulatory obligations concerning provision of any such service.
You are referred to the answer provided on 27 June and the CCS view on the scope of the data protection obligations. It is CCS' view that there is a discretion within the Contract terms for the parties to draw up a data controller / data processor or joint controller agreement. You should take your own advice on the nature of any such agreement.
Answered
15/10/2019 08:36
169. Please could CCS confirm if our below understanding of the Exit Management provisions is correct and what specific assets, if any, CCS envisages that potential suppliers of End Point Assessment Services as EPAOs might, in practice, potentially be required to sell, permit the use of and/or assign on termination or expiry of a contract. The exit management provisions set out under schedule 10, and in particular paragraph 9, of the Call off Contract Terms, suggest that in the case of each contract, a contracting authority would: • have a right to require that the potential supplier sell any of its assets, capable of legal transfer, which the potential supplier, or any key-subcontractor has used exclusively in the provision of its services to the contracting authority and to do so at net book value; • have a right to require that the potential supplier, permit the continued use of any of its, or a key-subcontractor's assets which were not used exclusively to provide the services, but instead used for provision of its services to the contracting authority as well as other purposes; and • have a right to require that the potential supplier, assign or novate any of its sub-contracts, licences for third party intellectual property rights and/or that potential supplier, grant licences for use of its own intellectual property rights; in order for either a contracting authority or a replacement supplier to the approved supplier to provide either the same or substantially similar services.
The terms of the Exit Management plan are as set out in Schedule 10, it is for you to review these terms and make a decision on whether to participate or not. CCS do not envisage many, if any, assets would for EPAO be subject to the requirements of schedule 10
Answered
15/10/2019 08:34
168. Please could CCS clarify what a Customer's total aggregate liability might be to a potential supplier in respect of losses resulting from customer causes occurring after the end of the first contract year? We note, pursuant to clause 25.4(a), that a sum equal to contract charges shall be a Customer's total aggregate liability in respect of all losses arising as a result of customer causes occurring during the first contract year.
Issues of liability are dealt with in clause 25 of the call off contract. If you are unclear as to the extent of your financial liabilities you should consider this section carefully (with you advisors if necessary). Your attention is drawn to clause 25.3.
Answered
15/10/2019 08:30
167. Please could CCS clarify to what extent a potential supplier shall have a right to remedy any default, including in performance of the Services, under the DMP Agreement and/or a Contract, prior to CCS and/or any Customer having a right to suspend or terminate the DMP Agreement and/or a Contract?
The termination and suspension rights are clearly set out in the DMPA and Call Off Contract terms and conditions. If you are unclear with how these elements of the contracts operate you should take independent legal advice.
Answered
15/10/2019 08:27
166. We note that CCS shall have a right to terminate the DMP Agreement without cause at any time following 6 months and that a contracting authority/ Customer shall have a right to terminate a Contract without cause at any time. Please can CCS confirm whether there is any scope for potential suppliers to agree for the inclusion of an initial minimum term, prior to its entering into any Contract?
The contract terms will remain as drafted. The DMPA and Call documents are different and separate contracts with different requirements.
Answered
15/10/2019 08:25
165. We no longer wants to submit prospectus/pricing information for frameworks. But still wishes to submit for standards. As we ticked earlier in the process that we do want to submit for frameworks can you advise how we amend this? As we do not appear to be able to go far enough back in the submission to amend this.
CCS have contacted NQC support team and have asked them to contact you directly to assist you in moving forward with this query.
Answered
22/11/2019 14:58
