Clarifications
There are 131 clarifications for this DPS
31. We are concerned that the requirement at clause 15.6.4 is invasive and is beyond what is required.
Will the Authority please explain how the Supplier by providing the Authority with details of all central Government public sector expenditure placed with the Supplier will assist the Authority to verify that the Supplier's practice is consistent with the Government's transparency agenda? It is not the Supplier's practice that is in issue here. The Government's transparency agenda requires the public sector body to publish details of its expenditure not the Supplier. All central Government public sector contracts will subject the Supplier to an obligation of confidentiality in any event.
Please will the Authority delete clause 15.6.4
The reference here should be to Clause 15.6.14.
These are standard reporting requirements (as are consistent with other recent procurements) which CCS considers are reasonable and proportionate to assure the Supplier's compliance with its obligations under the DPS Agreement.
The clauses will remain as drafted.
Answered
27/10/2017 15:33
30. Please confirm that where the Authority takes action on behalf of a Third Party Beneficiary to enforce (on behalf of that Third Party Beneficiary) a Third Party Provision that any Loss (suffered by the Third Party Beneficiary) and recovered by the Authority would be subject to the limitations on liability at clause 24.3
All recovery of Losses under the DPS Agreement regardless of who the claimant is are subject to the limitations on liability as specified under Clause 24. Please note that Clause 37.3 specifies that any Third Party enforcement requires prior Approval by the Authority and it is only in the circumstance described in Clause 37.5 where the Authority would conduct an enforcement action.
Answered
27/10/2017 15:31
29. Clause 19.2.1 requires the Supplier to import specific terms into all of it Sub-contracts (not just Key Sub-contracts). The majority of Suppliers will be unable to comply with the requirements at clause 19.2.1(b) to (e). The Authority is aware that most connectivity carriers will only provide services on their standard terms (particularly where dealing with regulated products) and that this is standard practice in this arena (the writer recalls that this formed a key element of the supplier engagement/feedback on RM1045).
Will the Authority please delete clause 19.2.1(b) to (e) inclusive from the DPS (clause 19.2.1(a) represents standard payments terms and is the subject of government policy in any event).
The Public Contract Regulations 2015 (regulation 113) require all public sector organisations to pay undisputed invoices in 30 days and ensure this payment term is passed down the supply chain. Any sub-contract awarded by the supplier is required to contain suitable provisions to impose the requirement of the regulation and for the sub-contractor to also include in any sub-contract suitable provisions to impose the requirement to the same effect. In addition regulation 113(7) requires contracting authorities to publish on the internet each year how they have performed. Clause 19.2.1 and it's sub-Clauses are now a standard provision in CCS agreements and shall remain as drafted.
Answered
27/10/2017 15:30
28. Can the Supplier terminate the DPS? If not, can it decline the Authority's option to extend? What for example would be the position if the Supplier could no longer comply with the requirements of the DPS (say it was unable to maintain HSCN Compliance)?
The Supplier does not have the right to terminate it's DPS Agreement nor decline its extension by the Authority. It remains the Supplier's decision whether to participate in Calls for Competition run by Customers under the DPS.
Continued HSCN Compliance is a fundamental requirement under both the DPS Agreement and Call Off Agreements. Where a Supplier is no longer HSCN Compliant this would give the Authority (and Customers under Call Off Contracts) the right to terminate for Material Default - see DPSA Clause 27.2.1 (a)
Answered
27/10/2017 15:28
27. The Authority may terminate the DPS where the Supplier fails to accept a Call Off Agreement pursuant to paragraph 6.1.3 of DPS Schedule 4 (Call for Competition Procedure). The basis of this is unclear (when reading paragraph 6.1.1).
Does paragraph 6.1.3 mean that the Authority has a right to terminate the DPS if it is late in returning a Call Off Order Form?
Clause 27.2.1 (c) addresses the situation where the Supplier has competed in a Call for Competition and been successful but subsequently declines the ensuing Order for the Services tendered for. This would be a significant frustration to a Customer, or aggregated group of Customers following the conduct of a Call for Competition. Termination of that supplier's DPS Agreement is not a right which would be exercised lightly (and would necessarily have to be a reasonable action by the Authority in the circumstances).
Answered
27/10/2017 15:26
26. Part B Key performance Indicators: On what basis (and when) is a supplier nominated to be a Strategic Supplier? We assume that a Supplier can refuse to be a Strategic Supplier - we note that it is not referred to in the SQ Supplier Response.
Certain suppliers are determined as Strategic Suppliers by the Authority based on the importance of the Supplier to the Authority in delivering its business objectives (typically due to public sector spend levels and market position), and potential business impact a Supplier could have on the Authority's activities.This is a decision made outside of a supplier's presence on individual CCS Agreements and determines the overall SRM approach to be taken by the Authority.
Answered
27/10/2017 15:25
25. We refer to ""...no further payments shall be payable by the Authority until the Authority has established and recovered from the Supplier the full amount of such cost."" It is unclear to us what this means in the context of clause 29.3 and the DPSA, what payments (and in respect of what) does the Authority make to the Supplier under the DPS (or any other CCS Framework Agreement of Dynamic Purchasing System)?
Will the Authority please clarify?
There could be a scenario where the Authority was due to make payment(s) to the Supplier under any CCS commercial vehicle and this provision enables that the Authority can prioritise recovery of its costs for implementing Replacement Services which are directly owing to the Supplier's Material Default and subsequent termination. The drafting reflects the Authority's intended position. It is a standard provision in CCS agreements and shall remain as drafted.
Answered
27/10/2017 15:24
24. If the Authority terminates the DPS as between the Authority and the Supplier what loss (in the context of the cost of procuring, implementing and operating any alternative or Replacement Services to the Services) will the Authority incur? The Authority is not receiving Services (under the DPS) in the first instance (if the Authority wanted to receive 'Services' it would be bound to use the procedure set out in Schedule 4 (Call Off Procedure) any Services would then be provided pursuant to the terms of any resultant Call Off Agreement).
Will the Authority please clarify?
This provision enables that the Authority can recover its costs for implementing Replacement Services which are directly owing to the Supplier's Material Default and subsequent termination. The drafting reflects the Authority's intended position. It is a standard provision in CCS agreements and shall remain as drafted.
Answered
27/10/2017 15:22
23. Will the Authority please explain what practical application clause 20.2.4 in particular clause 20.2.4 (b) has in the context of a DPS?
This provision requires Suppliers to confirm that their performance of the Services will not infringe the IPR of any third party. Where the service provision does rely on third party IPR (for example due to the Supplier's choice of products to deploy and use in the course of delivering the Services) it is right that the Supplier has the obligation to ensure that this IPR is not breached and the Authority is protected if there is such a breach.
Answered
27/10/2017 15:21
22. Clause 24.5.4 allows the Authority to recover from the Supplier its reasonable additional cost of procuring Replacement Services for the remainder of the DPS Period (which shall include any incremental costs associated with such Replacement Services above those which would have been payable under this Dynamic Purchasing System Agreement). How can this be so? There will be no receipt by the Authority of Replacement Services (as defined) as there are no Services (per se) provided under the DPS.
Will the Authority please clarify?
The Authority will have the right to recover losses and costs which might be incurred by the Authority in its role as the DPS administrator and operator, which may include as set out at clause 24.5.4, costs incurred to procure Replacement Services on behalf of the Customer and other administrative/operational costs which are incurred due to the Supplier's Default.The drafting reflects the Authority's intended position.
Answered
27/10/2017 15:20
21. Please note that any Losses recoverable under clause 24.5 should be subject to the cap at Clause 24.3. At the moment this seems to be erroneously stated as 24.2.
Will the Authority please correct the drafting?
"You are correct - the first cross reference is incorrect and will be revised as below:
""24.5 Subject to Clause 24.3, and notwithstanding Clause 24.4, the Supplier acknowledges that the..."""
Answered
27/10/2017 15:19
20. Whilst we note that limitations on liability specified at clause 24.3 apply equally to the Authority and Supplier, we are concerned that liability capped at the 'higher of two sums' approach here (giving rise to a minimum liability of £100K) has the potential to be disproportionate and to discourage small enterprises from participating in the DPS.
In the interests of fairness we ask that the Authority remove the reference to £100k and apply a fixed cap on liability at clauses 24.3.1, 24.3.2 and 24.3.3 of a sum equal to one hundred and twenty five percent (125%) of the Management Levy.
The liability levels are capped and apply for either party and shall remain as drafted. Losses would need to be proven to be claimable by the injured party.
Answered
27/10/2017 15:17
19. Clause 24.3 states ""...total aggregate liability in respect of all Losses..."" yet when we look at the drafting at sub-clauses 24.3.1, 24.3.2 and 24.3.3 each states ""in relation to any defaults"". We assume that the intention here is that the particular cap on liability stated at clause 24.3.1, 24.3.2 and 24.3.3 applies (in each instance) to all defaults (when taken together) occurring in the period specified (to be clear it is not a per default cap).
Will the Authority please confirm?
The cap on each Party's liability for defaults occurring in each period is stated in Clauses 24.3.1 to 24.3.3 i.e. the cap is aggregate per period, not per instance.
Answered
27/10/2017 15:15
18. The term 'default' is used in clause 24.3 with a lower case 'd' when there is definition of 'Default' (upper case 'D') in DPS Schedule 1 (Definitions). Is this an error in the drafting? Does the word 'default' in clause 24.3 not have the same meaning as Default (in DPS Schedule 1 (Definitions)?
Will the Authority please clarify?
The drafting is correct in clause 24.3, it refers to a default by either party. The defined term Default refers to default by the Supplier.
Answered
27/10/2017 15:14
17. Initial DPS Period"" means the period of thirty (30) Months from the DPS Commencement Date. We assume that later entrants to the DPS will have an Initial DPS Period less than 30 months.
Is this assumption correct?
Yes this assumption is correct, the Initial DPS period of thirty (30) months starts from the DPS Commencement date.
Answered
27/10/2017 15:12
16. An earlier draft of the RM3845 terms applied an improvement to the RM1045 terms in that the Exit Management Schedule became an optional schedule to be selected by customers where actually required, avoiding the need for the significant related costs in instances where such comprehensive exit services are not actually required. Can you please clarify why this improvement has been reversed in the latest draft and the exit schedule now applies to all orders, this will significantly increase the cost of all services despite the fact that the schedule may not actually be required in all instances? The Call Off Contract already includes the following provision which may well be sufficient for many customers:
6.1.4 (f) [The Supplier shall] co-operate with the Other Suppliers and provide reasonable information (including any Documentation), advice and assistance in connection with any Other Supplier to enable such Other Supplier to create and maintain technical or organisational interfaces with the Services and, on the Call Off Expiry Date for any reason, to enable the timely transition of the Services (or any of them) to the Customer and/or to any Replacement Supplier.
The HSCN Authority requires, as a minimum, that a standard Exit Plan is in place for all Call Off Contacts. The updated terms requires a supplier to comply with the provisions of Schedule 9 and its standard Exit Plan from the SQ Response. Where a consumer requires any additional support outside of these provisions, such support would be chargeable (clause 5.1.3, Schedule 9 Exit Management refers).
Answered
27/10/2017 15:10
15. Why has the concept of Call Off Implementation Period been removed from the latest draft of the RM3845 Call Off Terms? This was a useful addition which ensured that implementation periods did not impact minimum service periods where the contract duration and any minimum service period are the same.
The removal of this concept allows the Supplier and Customer to agree the Go-Live Date and Service Instance Period for each Service Instance. Careful planning of these within the Call-Off Contract Period should mitigate the risk. Bidders should familiarise themselves with the concept of Service Instances (i.e. which have their own specific Implementation Plan) and the relevant definitions.
Answered
27/10/2017 15:08
14. "Schedule 10 Guarantee - clause 2.5 of the RM1045 version of the template guarantee has been removed from this DPS version. The wording of that clause has been agreed previously with government in various agreements, was agreed for inclusion in RM1045 and ensures that amounts recovered are not paid twice. Can you please clarify why has this this been removed in this instance? We assume that the Authority is not seeking the right to recover amounts twice so do not understand why the clause cannot be retained. The clause is included again here for ease of reference.
"2.5 For the avoidance of doubt, the Beneficiary shall not be entitled to obtain reimbursement from the Guarantor under this Deed for amounts recovered from the Contractor under the Guaranteed Agreement if to do so would mean such amounts were paid to the Beneficiary twice."
Please refer to clauses 2.1 and 2.4 of Schedule 10 Deed of Guarantee and this clause is consistent with other CCS agreements.
Answered
27/10/2017 15:07
13. There have been significant changes to the terms and conditions of the RM3825 DPS Agreement and related Call-Off Terms in the latest version of those documents, can you please clarify the current deadline for submitting Supplier's clarification questions about these documents.
Please refer to the timelines published in the DPS needs document. Please ensure that questions are submitted throughout the period prior to the deadline, and preferably not in bulk on the final day of the deadline.
Answered
26/10/2017 10:52
12. Clause 4.2 of the Call Off Terms requires that the Supplier shall, at least six (6) months prior to the expiry of the Call Off Contract Period, provide notification to the Customer of such expiry to enable the Customer to decide if an extension is required. Can you please clarify if the Supplier is required to provide this notification for all Call Off Orders or only those that have recorded an extension option on the Order Form.
The 6 month notification is intended to serve as a reminder for Customers that their Call Off Contract will expire unless an extension option (if available) is exercised. Even where an extension option is not available this notification will also be useful to inform Customers of the impending contract expiry and to progress relevant replacement procurement activity. To confirm, the notification is required 6 months prior to expiry for ALL Call Off Contracts.
Answered
26/10/2017 10:51
