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Clarifications

There are 80 clarifications for this DPS

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
A response has now been provided.
Answered
Jul-14-2020 15:00
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.
Paragraph 19 states "No third parties may use the Contracts (Rights of Third Parties) Act (CRTPA) to enforce any term of the Contract unless stated (referring to CRTPA) in the Contract". I can confirm that there will be no double recovery. The DPS Contract is between CCS and the Supplier. The Order Contract is between the Contracting Authority (Buyer) and the Supplier. If CCS had the right to claim damages under the Order Contract, this would be explicitly called off in the DPS terms. In the event the Supplier were to fail to deliver services, CCS may terminate the DPS Contract and/or prevent the Supplier from providing services in future under that DPS, to ensure we are not exposing our customers to undue financial risk. It would be explicitly expressed in the Contract if CCS intended on charging for failure to deliver services.
Answered
Jul-14-2020 14:56
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?
If CCS becomes aware and starts to have concerns of changes to a Supplier's credit rating, we will engage with the Supplier and attempt to gain as much information as possible to evaluate the situation. CCS are aware that listed company stocks are traded based on financial information and that a company cannot risk that information getting out. We realise these limitations and are always happy to sign a Non Disclosure Agreement (NDA). CCS monitors the Supplier's financial health to be able to effectively make decisions, to ensure we don't expose our customers to undue financial risk and to ensure the delivery of public services aren't impacted. In the event there are reasonable concerns and a Supplier is unable to share financial information to alleviate the concern, CCS will need to take action. The less detailed information a Supplier is able to provide will have an adverse effect on the risk assessment of that Supplier and it would likely result in CCS putting other measures in place, or potentially suspending the Supplier from the agreement. CCS will always review what information the Supplier is happy to share, will treat each case in isolation and will come to agreement of what is acceptable. It is for you the Supplier to weigh the risks and determine if providing audited and published data will be sufficient for you to provide if CCS were required to gain access to financial information.
Answered
Jul-14-2020 14:54
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.
A meeting within 3 working days may be requested by CCS where CCS reasonably believes that the Financial Distress Event could impact the continued performance of each Contract and delivery of the Deliverables in accordance with each Call-Off Contract and will not be requested if your credit rating is still good (see Paragraph 6).
Answered
Jul-14-2020 14:51
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?
The basic premise of this schedule is to give CCS contractual rights to identify and manage financial distress in order to mitigate risk exposure of customer departments using the commercial agreements. The cancellation or suspension of indebtedness is primarily concerned with a company either entering into administration or a voluntary arrangement. Covid specific measures such as suspension of VAT payments would not automatically be considered as a signal of financial distress. However, as part of ongoing financial due diligence any change in financial position will be reviewed with consideration of particular circumstances a suitable action taken. In relation to the ongoing Covid-19 situation, we would expect all Customers to behave in compliance with the relevenat PPNs especially with regards to Financial matters. As per the PPNs we would anticipate Customers utulising alternative methods of resolution, before relying on the clauses of the Contract.
Answered
Jul-14-2020 14:49
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?
Paragraph 1, part (f) of Joint Schedule 7 (Financial Difficulties) is left intentionally vague to cover lots of events. CCS does not have a hard and fast rule, which allows us to move and flex to protect frontline services and also help protect suppliers. Each case is measured on its own merits, taking many points into consideration, including but not limited to; the risk appetite of an agreement, what is being procured, value of contract, current financial health of a company and how the debt compares to the company's current financial health. CCS do not have a set point to determine risk and instead use a 'gearing ratio'. This is intentional, as CCS do not want to disadvantage Start Up companies who would likely be highly geared and yet this wouldn't put them in financial distress. CCS therefore monitors movements of financial indebtedness to ensure the financial health of a Supplier does not have impact on frontline services and also enable suppliers to deliver their service offerings.
Answered
Jul-14-2020 14:48
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?
Joint Schedule 7 is a core schedule in the standard Public Sector Contracts. Its purpose is to trigger a conversation, to ensure a business's financial standing is okay. As part of our Supplier Relationship Management we will carry out a reasonableness test, to assess how likely a business is to fail; for example, is a fall in the rating an ongoing trend over the period of one year or a quarter? A Supplier will not be automatically terminated from the framework if a credit rating falls by 10%. If a Supplier's credit rating were to fall by 10% over the period of a year, this would not raise significant alarm. If a Supplier's credit rating were to fall by 10% over a two week period, this would raise concern. The Schedule governs all suppliers under the agreement, therefore the Failure Rating must cover the minimum credit threshold a supplier would need to meet to deliver work under this agreement. This allows CCS to monitor Supplier's financial performance. A Failure Rating of 10% resulting in a Financial Score of 87 would not cause alarm, whereas a Failure Rating of 10% resulting in a Financial Score below the relevant Credit Rating Threshold would. Suppliers should notify CCS in case of Financial Distress in writing and a Continuity plan will be requested where CCS reasonably believes this event could impact on the continued performance of Suppliers obligations under each Call-Off Contract. Paragraph 6 of Joint Schedule 7 states that if a Supplier's credit rating does not drop below the relevant Credit Rating Threshold, then the Supplier shall be relieved of its obligations under Paragraphs 4.3 to 4.6 and CCS is not entitled to require financial information in accordance with Paragraph 4.3.2.
Answered
Jul-14-2020 14:44
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?
Yes, suppliers are able to amend their service offerings and add services, as long as they fall under the scope of the existing filters and sub filters under the DPS. You can update your service offerings, contact details and other procurement specific questions. Once you do this, your application will go back into Registration 2. You will then need to resubmit with your revised responses and your application will go into assessing. The Procurement Assurance Governance team will then re-appoint you after looking at what has been updated, to ensure all is still in order.
Answered
Jul-14-2020 14:42
Can CCS please confirm that a Parent Company Guarantee is not required to accept a place on the DPS?
Confirmation of a Parent Company Guarantee is not a requirement to be accepted to the DPS, however, if the Financial Threshold is not met then Guarantor information may be requested. Please refer to the section 'Economic and Financial Standing' in the DPS Needs document within the Bid Pack,
Answered
Jul-10-2020 13:19
In the evidence questionnaire: Please can you clarify what is needed for q179/q180? Our understanding is that you want the contracts for our 3 given references in the previous stage. Is this correct? Re. q182 - 185, are these questions not covered by q166 with the audited accounts attachment?
Please refer to the RM6173 Automation Marketplace DPS Needs document held within the Bid Pack. Section 72. Selection Questionnaire - Not Applicable questions: There are questions in the Selection Questionnaire that are not applicable for this RM6173 Automation Marketplace procurement, therefore please note, a response is NOT required.
Answered
Jul-07-2020 13:28
the selection questionnaire will not allow you to proceed if you do not insert a response on those you state are Not Applicable - can you confirm how we proceed to complete if the system wont allow?
Please refer to the RM6173 DPS Needs document which can be found in the bid pack. There are questions which are not applicable to this DPS. Please check your previous response to questions as, in many cases, this determines what questions become visible. Questions 133, 134 and 135 should not be answered as a contract example is not required for this DPS. If you do continue to experience difficulties with your application my colleagues at NQC will be able to assist you, their contact information is held at the foot of the Supplier Registration Service home page.
Answered
Jun-25-2020 11:31
Can you provide further information as to what a relevant example contract would be, are you looking for examples of where we have done similar automation work before?
Query 1: Section 72 of the DPS Needs document (part of the Bid Pack) states Q133 - Q135 are not required for this DPS. However, a response is required for Q137.
Answered
Jun-22-2020 13:06
In looking through the criteria and requirements I notice several elements that would be incredibly onerous for a small business (e.g. 5-10 employees) to meet, despite potential alignment of their service with the needs of the marketplace, to comply. Specifically, for example I note the requirement of Cyber Essentials and several ISO standards which, we a small business can meet, but will take a long time to get into place. Is there advice, guidance or specific arrangements for small enterprises considering this marketplace?
To ensure that all bidders are treated fairly and equally, all bidders must meet the minimum requirements for the procurement of which Cyber Essentials is one of those. Information relating to Cyber Essentials can be found in Schedule 9 Cyber Essentials Scheme of the terms and conditions. Within Schedule 9, paragraph 1.1, there is a link to find further information on the Cyber Essentials Scheme as needed.
Answered
Jun-22-2020 11:56
162. Which of the following CESG cyber certifications does your organisation currently hold? Please tick all that apply - when selecting Tailored Evaluation - CTAS it then asks for dates and a physical certification. NCSC does not provide either dates or a certificate but a link to their site details our membership. How should we answer this question please?
Using the following link https://www.cyberessentials.ncsc.gov.uk/cert-search/?query= you should be also to search for your company name and find certification details including certificate number, dates and accreditors.
Answered
Jun-22-2020 11:02
Based on the latest responses received re some of the order schedules that they are applicable at the order level (not the DPS level) and so the order schedule is subject to changes by individual buyers depending on their requirements. Can you please confirm if we can go ahead accepting the terms with the assumption that we are able to amend any of the framework terms (both core and schedule) at the Call-Off level?
It is only open to Buyers to propose Special Terms and/or amend schedules to make variations to the original T&Cs based on their own requirements.
Answered
Jun-22-2020 10:56
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?
As per paragraphs 50 to 58 of Buyer Needs document, CCS will complete a economic and financial assessment for all bidders using the Credit Reference agency, Dun and Bradstreet, The minimum required score for all bidders to meet is 35. In accordance, with paragraph 54 to 58, any bidders who do not meet the minimum required score, will be asked to provide their account documentation which includes the documents as listed under paragraph 53. You should respond to question 127 in line with the guidance provided within the Buyers needs paragraphs as listed above.
Answered
Jun-22-2020 10:43
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?
We can confirm insurance certificates should be an acceptable form of evidence that required insurances are in place. If any other forms specific forms of evidence are required by the Authority they will specify this.
Answered
Jun-22-2020 10:41
New Joint Schedule 12 (Supply Chain Visibility): the Supply Chain Information Report template is embedded but does not appear to accessible - could you please check and re share?
Annex 1 Supply Chain Information Report Template of Joint Schedule 12 Supply Chain Visibility is now available on the Supplier Relationship System for this RM6173 Automation Marketplace DPS.
Answered
Jun-22-2020 10:40
We, as a prime contractor, hold a valid Cyber Essentials certificate. Is it also necessary for any subcontractors to hold their own certificate independently of ours?
Please refer to Clause 2.5 of DPS Schedule 9 Cyber Essentials Scheme, which states 'The Supplier shall ensure that all Sub-Contracts with Subcontractors who Process Cyber Essentials Data contain provisions no less onerous on the Subcontractors than those imposed on the Supplier under this Contract in respect of the Cyber Essentials Scheme under Paragraph 2.1 of this Schedule. Suppliers' Therefore all Subcontractors will be required to comply with Clause 2.1 of DPS Schedule 9 Cyber Essentials Scheme.
Answered
Jun-22-2020 10:38
Re: Selection Questionnaire q129. Do you meet the minimum level of economic and financial standing and/or minimum financial threshold specified within the evaluation criteria for this procurement? I note the required completion of Attachment 3 - Financial Assessment Template v1. We have populated this information but it does not give an overall score, so my question is -How do I answer do we meet the financial standing threshold? Also, do I send Attachment 3 Via email , as it's not requested as an upload at this SQ stage
In accordance with paragraph 50 of the DPS Needs document, CCS will undertake an assessment of all bidders economic and financial standing using the DUNS number (as provided by Dun and Bradstreet) for your organisation. The score provided by Dun and Bradstreet will be used to assess the level of financial risk each bidder represents. Bidders who receives a score of 35 or more, will continue to proceed in the DPS Selection process. Bidders who score less than 35 will follow paragraphs 53 to 58 of the DPS Needs document. Attachment 3 - Financial Assessment template, will be used by CCS where bidders receive a Dun and Bradstreet score of less than 35 and proceed through paragraphs 53 to 58 to completed the financial assessment. Bidders are not required to complete Attachment 3 - Financial Assessment template.
Answered
Jun-22-2020 10:26
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