Clarifications

94. We refer to HSCN DPS Questionnaire Question 13 and limb a) of the definition of Key-Sub-contractor in Schedule 1 of the DPS. How do Supplier's determine what is a Key-Subcontractor for the purpose of the SQ (taking in consideration that Key-Subcontractors are normally allocated for the purpose of any contract (Call Off Contract or otherwise) at the time the contract is entered into having regard to the technical solution, extent of a supply chain and circumstances of that contract.?

93. We refer to HSCN DPS Questionnaire Question 13 and the definition of Key-Sub-contractor in Schedule 1 of the DPS. For the purpose of the SQ, it seems to us that every Material Sub-Contractor is a Key-Sub-contractor is that correct?

92. We refer to HMG_UNIT_SQ-254 Question 22 "The approximate % of contractual obligations assigned to the sub-contractor". If this statement in some way relates to the greater or lesser extent to which a third party is involved in the delivery of the whole Service (as described), The Supplier will not be in a position to provide the information requested because the extent to which as Supplier draws down on third party services will vary from Call Off Contract to Call Off Contract. At the point of submitting the SQ any party listed as a Sub-contractor (if any) may or may not be used to underpin/facilitate Services to a Call Off Customer. How can the Supplier estimate in respect of services not yet provided and a Call Off Contract not yet awarded?

91. We refer to HMG_UNIT_SQ-254 Question 22 "The approximate % of contractual obligations assigned to the sub-contractor". We do not understand what this means a third party cannot be both an assignee and a sub-contractor at the same time? It is either one or the other. Please will the Authority clarify?

90. We refer to HMG_UNIT_SQ-254 Question 22 "The approximate % of contractual obligations assigned to the sub-contractor". What does this statement mean and/or what does the question ask for?

89. We refer to document HMG_UNIT_SQ-254 Question 21 what is the criteria for determining whether or not a third party is a sub-contractors?

88. We note the response to question #35 which asked why the concept of Call Off Implementation Period had been removed from the latest draft of the RM3845 Call Off Terms. The response directs bidders to review the Service Instance concept and states that the removal is required to allow agreement of dates for the Service Instance Period, but Service Instance Periods and Service Instance Extension Periods are limited (understandably) to the Call Off Contract Period. The earlier inclusion of an Call Off Implementation Period addressed an issue with term commitment. Where suppliers make use of standard access products these are often subject to discounted prices which require an associated 'minimum period of service'; i.e. in order to benefit from lower pricing a commitment to a minimum service term is required. In instances where an implementation period applies, a customer that wishes to benefit from a 5 year service price with a 5 year minimum service period on a 5 year Call Off Order will not have received the services for a full 5 year period and will not be able to extend the Call Off Contract Period; e.g. a customer commits to a 5 year minimum period to achieve a lower price but a 1 month implementation period means the service will not have been delivered for a full 5 years when the 5 year period measured from the Call Off Commencement Date has expired (it will fall 1 month short). We understand that a concept of Service Instance has been introduced which then required a change in the description of related periods, but perhaps the two concepts can be combined with the introduction of a Service Instance Implementation Period allowable for each Service Instance prior to the commencement of the Call Off Contract Period or a Call Off Implementation Period as previously drafted during which all Service Instances can be implemented?

87. We note the response to our question relating to Clause 41.5 and Schedule 9 (Exit), that response to question #36 states that a standard Exit Plan is required in all instances. The concern raised in our earlier question is that the Exit Schedule (i.e. the requirements in that schedule which are above and beyond the obligation to comply with the standard Exit Plan) will incur significant related costs in instances where such comprehensive exit services are not actually required. In lower value procurements, the costs associated with the obligations in the Exit Schedule will be prohibitive to bidding or will unnecessarily increase the cost of services to Customers. The recent changes applied to the schedule in relation to creation of a standard Supplier Exit Plan do not remove these comprehensive Exit Schedule obligations. Perhaps the Call Off Terms could be amended such that compliance with the Supplier's standard Exit Plan is required in all instances but is separated from the Exit Schedule itself which could remain optional (as per the earlier draft of the RM3825 Call-Off Terms)?

86. We note the Authority's response to our earlier question relating to Clause 17.6 of the RM3825 DPS Agreement (question ID #29), (that clause requires suppliers to use best endeavours to implement an unknown system), the Authority response provides context of the reasons for implementing such a system. But the response has not provided any of the requested information regarding the system itself or addressed the matter of the best endeavours obligation (Suppliers are still required to commit to implement an unknown system on a best endeavours basis). 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. This clause still requires one party to commit to an obligation of unknown scope and as such is, in our opinion, unreasonable. Could you please clarify the requirement in that clause 17.6 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.

85. Why has the old Clause 32.5 been removed in the most recent update to the Call Off Terms of the RM3825 DPS Agreement, i.e. the following deleted text "A Party shall not be responsible for any Loss under this Call Off Contract if and to the extent that it is caused by the default of the other (Default on the part of the Supplier and Customer Cause on the part of the Customer)". Why should the Parties not have the protection of that clause?

84. Questions 148 and 149 refer to the "supply of steel". Is this an error in the questionnaire? If not, please could you clarify further regarding relevance.

83. Clause 19.2.1 (c) of the DPS requires Suppliers to amend all applicable supply chain agreements to include a clause that provides the Authority with the right to publish any failure by the supplier to comply with the payment period obligations. If the Supplier fails to pay within the period, the Authority already has the right at clause 19.1.5 to publish the fact that the Supplier has failed to comply with the obligation, and moreover, it does not need to name the sub-contractor or reference the sub-contract when doing so (indeed we believe it would be inappropriate to name the subcontractor in that way, why should the subcontractor have the fact it has entered into an agreement with the supplier made public when the subcontractor itself will likely have done nothing to justify such publication?). The Public Contracts Regulations 2015, which is the source of other clauses in clause 19.2, does not require the inclusion of any such clause in a sub-contract, why does the Authority require this outcome when it exceeds the requirements of legislation and will provide no material benefit for the Authority or Customers? The Authority has the right to publish failure by the Supplier at 19.1.5 and that should be sufficient. To require suppliers to flow this clause into their supply chains will require an extremely high volume of negotiations (which despite Suppliers reasonable efforts may in any event be unsuccessful, subcontractors may well reject the request) and will lead to a high associated cost for industry without any associated benefit for the Authority or Customers. Could you please review and consider the removal of this clause.

82. Is it possible to confirm the deadline for submission for the Health and Social Care Network (HSCN) Access Services (RM3825) DPS.

81. Clause 27.6.3(b) provides a revision to an RM1045 termination right for the Authority which is now based on the sole opinion of the Authority, it is inappropriate for one party to be able to unilaterally terminate an agreement because it merely anticipates an outcome. The rights available to the Authority in the original version of Clause 27.6.3(b) should be sufficient, i.e. a right to terminate if it becomes aware of an actual Change of Control. Could you please remove the subjective revisions to Clause 27.6.3(b).

80. Clause 27.4 provides a termination right for the Authority which is based on the sole opinion of the Authority, it is inappropriate for one party to be able to unilaterally terminate an agreement based on opinion. The rights available to the Authority in Clause 27.5 (which are based upon measurable outcomes) should be sufficient in this respect. Could you please remove the subjective Clause 27.4.

79. Further to the response to the earlier question about Clause 20.2.2 of the DPS Agreement (Question ID is not available), we note per your response that the omitted section was seen to limit the Supplier's liability (indeed that is the intention of that omitted wording as we previously understood it), but the response does not answer the question as to why this limit should be removed, i.e. why should Suppliers be expected to indemnify in instances where the Authority has failed to comply with Clause 20.2.6? The clause as revised now expects Suppliers to indemnify in instances where the Authority has failed to notify the existence of the claim itself or allow the Supplier conduct of the claim and reasonable assistance. This creates an unreasonable burden on Suppliers. Moreover, it is usual for indemnification of this type to be subject to the right of conduct of claims. Could you please review the clause again as this matter will be critical for our governance reviews.

77. Is it possible to confirm the deadline for submission of questions for the Health and Social Care Network (HSCN) Access Services (RM3825) DPS.

76. Can you please clarify the type of Subcontractors that need to be declared in the Selection Questionnaire, does this scope exclude suppliers of equipment / COTS software but instead include sub-contractors that will perform service delivery obligations on the Supplier's behalf (e.g. installation services)?

75. Why has the first part of Clause 20.2.2 the RM3825 DPS Agreement been removed in the most recent update to the DPS Agreement, i.e. the following deleted text "Subject to the Authority's continued compliance with Clause 20.2.6". Why should Suppliers be expected to indemnify in instances where the Authority has failed to comply with Clause 20.2.6?

74. Previous Answer 01/11/2017 11:00 We refer to Clarification Question and Response above. Putting aside whether or not "it follows logically from this that Service Credits cannot exceed 15% of the relevant Call Off Contract Charges" the limitation on the Supplier's aggregate liability for Service Credits is not expressly stated in the Call Off Terms (the mechanism used in RM1045 to do this was the application of Service Credit Cap (as defined)). In the absence of an express statement stating what the Supplier's aggregate liability for Service Credits is, we must assume that the Supplier's liability for Service Credits (be it (logically) 15% of the relevant Call Off Contract Charges or otherwise) is captured by clause 32.2.1(a) (that is the Supplier's liability for Service Credits (be it 15% of the Charges or otherwise) does not sit in addition to the Supplier's liability at clause 32.2.1(a) it is included within it). Please confirm that this is correct (this would be entirely consistent with your Response confirming that the Supplier's liability for Delay Payments is captured by clause 32.2.1(a)). Thank you