Clarifications

116. Main Agreement clause 20.2.2: We note the Authorities responses to the other questions asked on 20.2.2 but consider that the concern highlighted has not been addressed it is, in our opinion, unreasonable for a Supplier to indemnify the Authority if it does not comply with 20.2.6. Can the Authority please confirm that the qualification shall be reinserted into clause 20.2.2 or allow follow-up dialogue on this topic?

115. Main Agreement clause 17.6: We note the Authorities responses to the other questions asked on 17.6 but consider that the questions have not answered, nor has the concern been addressed. To be clear: clause 17.6 requires suppliers to use best endeavours to implement a system, any best endeavours obligations can be considered an onerous commitment for a contracting party, but in this instance the scope of the obligation is unknown making the commitment particularly onerous. Suppliers cannot predict the costs they might face in the implementation of an unknown system. Furthermore, suppliers cannot predict the scope or feasibility of work that will be required in order to implement an unknown system with unspecified interface requirements, yet the current drafting would commitment them to implement it whatever the specific requirements might be. This clause requires one party to commit to an obligation of unknown scope and as such is, in our opinion, unreasonable. Could you please clarify the contractual requirement such that Suppliers can assess and cost compliance with the obligation (i.e. by confirming the system, related interface requirements, etc.)? When clarified, any obligation to implement should be on a reasonable endeavours basis.

114. Main Agreement clause 16.3.2: This clause is very broad and obliges all Suppliers to provide the Authority with information that could be considered irrelevant and/or inappropriate in a number of other contexts. For example: the Authority does not require evidence that a Supplier has minimised its costs when it signs a Call Off. If the Authority wishes to ensure 'best technical value' on a supplier-by-supplier basis then we recommend that the Authority engage in the HSCN Change Control processes. Can the Authority please confirm that 16.3.2 shall be removed?

113. Main Agreement clause 7.2.1: This clause imposes an obligation on DPS suppliers to maintain HSCN Compliance over the life of the Agreement, not the life of any Call Off. This coupled with the lack of a suppliers ability to terminate the Agreement for convenience (such as a suppliers desire to exit the market) makes this clause too onerous. Can the Authority please confirm that the terms shall be adjusted such that either the Warranty is removed or the Supplier has the right to terminate the Agreement for convenience?

112. Main Agreement clause 6.1: The text on non-exclusive assets was not part of the associated clause under NSF and is refers to information that is: propriety, subject to change, and not relevant to a service provider designing a service that meets published requirements. Can the Authority please confirm that clause 6.1 shall revert to the NSF version of the text?

111. We refer to Call Off Schedule 11: Dispute Resolution paragraph 8.7.1 it is unclear to us how the Parties are to use their best endeavours to procure that the Multi Party Dispute Representatives of each Related Third Party attend Multi Party Dispute Resolution Board meetings. Best endeavours in law has a very specific meaning and is intended to apply to something which the party (with the obligation) has some ability to bring about (normally related to effort expended and cost involved). We are not sure that the concept is used correctly here. As a matter of fact all the Parties can do is to ask the Multi Party Dispute Representatives of each Related Third Party to attend the meeting. What must the Parties do to discharge a best endeavours obligation in this regard ask Multi Party Dispute Representatives of each Related Third Party to attend the meeting on more than one occasion? Will the Authority please clarify and consider removing the best endeavours obligation as it is of no real practical application?

110. We refer to Call Off Schedule 4 Implementation and Testing Part B paragraph 9.3. Will the Authority please explain how this paragraph applies where the Customer has elected to take Delay Payments? Is the Authority saying that where something is deemed to be a material Default (for example the circumstance at paragraph 9.3 arise causing Delay) that Clause 5.5.1(b)(A) then applies and that Delay Payments are not the Customer's exclusive remedy (even where the Delay has not exceeded the 100 day threshold at Clause 5.5.1(b)(B)?

108. Call Off Terms 5.1.1 b) (A) state "Delay Payments shall be the Customer's exclusive financial remedy for the Supplier's failure to Achieve a corresponding Milestone by its Milestone Date except where:(A) the Customer is otherwise entitled to or does terminate this Call Off Contract pursuant to Clause 37 (Customer Termination Rights) except Clause 37.5 (Termination Without Cause);" Will the Authority please explain what this means and how this would work in practice? Is it intended to relate to circumstances not related to the late failure to achieve the Milestone in question?

107. Please explain the purpose of DPS clause 16.2?

106. The OjEU says that the DPS is open for use by non-public sector bodies (for specified reasons) is it conceivable that a non-public sector body could fall within the ambit of those organisations specified at paragraph III.1.1 of the OjEU (i.e. the definition of Contracting Body under the DPS)?

105. Having regard to "Answered 02/11/2017 16:57" it seems that it is the intent that the liability of the Guarantor and Supplier when taken together will not exceed that stated (for the Supplier) in the Guaranteed Agreement (i.e. the Guarantor and the Supplier do not each have an individual liability/exposure equivalent to that stated (for the Supplier) in the Guaranteed Agreement their combined liability/exposure is that stated (for the Supplier) in the Guaranteed Agreement). Please confirm this is the case. If this is the case do you have any objection to a Guarantor making that point clear in the drafting (it is after all the Guarantor who is making the Guarantor and if that is the intent then there is no prejudice to the Authority in allowing the drafting to be clarified on the point). If so why?

103. We refer to "Answered 01/11/2017 18:02" and "Answered 03/11/2017 16:55" forgive us for pressing the point be we (and it seems other Suppliers) are no clearer as to what is required of us under clause 17.6? What is the Supplier required to do in the context of clause 17.6? You are asking the Supplier to give a best endeavours obligation in respect of something that it has no visibility of nor understands. Can we suggest that you remove clause 17.6 (or a least the best endeavours obligation) or specify exactly what the Supplier will be required to do.

102. We refer to "Answered 01/11/2017 18:00" and " Answered 31/10/2017 17:31" from this we take it that the Call Off Customer will always be the HSCN Consumer and that no other end user of services (for example where a Contracting Authority (party to the Call Off Contract) provides/passes on services to numerous other end users) will be regarded as the HSCN Consumer. Please confirm.

101. We refer to "Answered 01/11/2017 17:43" with respect the clause referred to does not interfere with the concept of unlimited liability it is simply a condition of the application of the indemnity. Will the Authority please reinstate the text referred to? It is unacceptable to oblige the Supplier to indemnify the Authority in circumstances where the Authority has not followed the procedure it has itself laid down in the DPS.

100. We refer to Call Off Terms Clause 29.9.4. Clause 29.9.4 should also explicitly extend to circumstances where the Software is used in combination with any item not supplied or recommended by the Supplier. Will the Authority please update the drafting?

99. We refer to Call Off Terms Clause 35.1.3(d). Where a Supplier Non-Performance (on account of Customer Cause) constitutes a Service Level Failure and also gives rise to a Critical Service Failure clause 10.1 should not apply because it would be inequitable if the Customer were entitled receive compensation pursuant to clause 10.1 in such circumstances. Will the Authority please update the drafting at clause 35.1.3(d) to make clear provision for this relief and if not please explain why not and the impact of that on the Supplier.

98. We refer to the Call Off Terms. Will the Authority please explain the relationship between clause 32.2.2(b) and clause 41.2.2(b) having regard to the definition of "Call Off Contract Period"? If possible please provide a worked example demonstrating the application of the clauses and definition referred to (say for example in respect of a Call Off Contract with a 5 year Call Off Contract Period which is terminated at the end of year 2). Thank you.

97. We refer to Call Off Terms Clause 35.1.3(d). Where a Supplier Non-Performance (on account of Customer Cause) constitutes a Service Level Failure and also gives rise to a Critical Service Failure clause 10.1 should not apply because it would be inequitable if the Customer were entitled receive compensation pursuant to clause 10.1 in such circumstances. Will the Authority please update the drafting at clause 35.1.3(d) to make clear provision for this relief and if not please explain why not and the impact of that on the Supplier.

96. We refer to the definition of Call Off Contract Period in Schedule 1 of the Call Off Terms and clause 32.2.2(b) capping the Customer's liability to ".... a sum equal to the Call Off Contract Charges payable to the Supplier under this Call Off Contract during the Call Off Contract Period." "Call Off Contract Period" means the term of this Call Off Contract from the Call Off Commencement Date until the expiry of the Call Off Contract Initial Period or any Call Off Contract Extension Period or date of earlier termination, which shall in no event exceed a maximum duration of sixty (60) Months; The definition of "Call Off Contract Period" means that the Customer would pay to the Supplier a sum equal to the Call Off Contract Charges payable to the Supplier in that period commencing on Call Off Commencement Date and ending on the actual termination of the Call Off Contract (not the expiry of the Call Off Contract Initial Period or Extension Period (if extended)). This does not seem correct. Is this the Authority's intention?

95. We refer to HSCN DPS Questionnaire Question 13 and limb b) of the definition of Key-Sub-contractor in Schedule 1 of the DPS (b which, performs (or would perform if appointed) a critical role in the provision of all or any part of the Services). Will the Authority please explain what does b) actually mean or what is it trying to do in circumstances where Key Sub-contractors are already allocated and listed in the SQ and/or are Material Sub-contractors?