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Clarifications

There are 107 clarifications for this DPS

1. Please see clarification questions below: 1. Please clarify what is meant in clause 4.8 by "the supply at cost" "and that cost is reimbursable by the Buyer". 2. In clause 4.11, could CC please explain why "counterclaim" is included in this clause, as it seems reasonable that should the Supplier have a genuine counterclaim, it ought to be able to bring it? 3. Could CCS please clarify the relevance of clause 6.5 in relation to Record Keeping and Reporting? 4. Clause 10.2 - The DPS Optional Extension Period would appear to be open ended. Could CCS please confirm their intention with regard to the likely length of any extension periods? 5. With regard to Core Terms, clause 10.5.7 Please can you confirm if clause 7.2 being included in this list is a mistake? If not a mistake, please con you clarify? In addition to this please can you confirm whether clauses 10.5.7, 19 and 26 have been missed off by mistake. 6. Clause 10.8.2 - Please clarify how the arrangement would work if part only of the DPS Contract was terminated? 7. Please clarify whether it is intended that a Supplier should be jointly and severally liable for other Suppliers which are a party to a Collaboration Agreement under Order Schedule 23? 8. Clause 14 requires the Supplier to process Personal Data (and ensure that Supplier Staff process Personal Data) in line with Joint Schedule 11. Joint Schedule 11 makes clear in para 1 that the Schedule is intended to capture Personal Data being processed in the performance of the parties' obligations under the relevant Contract. This could include the circumstances where the Supplier / Supplier Staff are processing their own Personal Data. We presume that this was not the intention. However, it would be helpful if you could clarify this for us. Please note that, to the extent a sub-contractor of the Supplier is sub-processing Personal Data, any sub-contract will only deal with the Personal Data that the Sub-Contractor is processing on behalf of the Supplier / its customers in relation to the particular sub-contract (it will not cover the sub-contractor's own Personal Data). Clause 14.1 only obliges the Supplier to comply with Joint Schedule 11. However, the Schedule itself includes obligations on CCS / the Buyer. Can you please confirm why clause 14.1 does not oblige both parties to comply with Joint Schedule 11? 9. The reference to clause 14.7 in clause 14.7 would about to be the wrong cross reference. Can you please confirm the correct cross reference? 10. Please provide a definition of "Malicious Software" as used in Special Term 3 contained in the Appointment Form. 11. Clause 15.5 requires disclosure to be under a confidentiality agreement on at least as strict terms as clause 15. However, it does not state that the Disclosing Party will be liable for any breaches of any such confidentiality agreements. Please clarify whether that is the intent? 12. The definition of "Transparency Information" includes the defined term "Commercially Sensitive Information". This is defined as "the Confidential Information listed in the DPS Appointment Form or Order Form (if any) comprising...". However, we note that Joint Schedule 4 appears to include the Commercially Sensitive Information. Does the definition need to be updated to reflect this? 13. Can you please confirm that clause 18 (No other terms apply) is intended to exclude any claims for misrepresentation and limit claims to those arising for breach of contract. Further, can you please confirm that terms implied by statute are intended to be excluded from any Contract under this clause. 14. Can you please confirm that the cross reference to clause 27.4 in clause 27.5 should be to clause 27.3? 15. One of the PIs in para 4 of DPS Schedule 4 requires the Supplier to respond to 95% of Invitation to Tenders issued (within location region) in each Quarter. Please confirm that the Supplier is not obliged to submit bids under the DPS Contract and so a valid response for this PI would be a no bid decision. 16. One of the PIs in para 4 of DPS Schedule 4 measures Satisfaction (based on a % of responders who are satisfied or better). Can you please clarify how "Satisfaction" is to be quantified and any CSAT questions are to be determined. We assume that the same questions will apply to all Suppliers? 17. Para 3.4 of DPS Schedule 4 includes the following: "Suppliers should participate in further competitions when identified by appropriate filters using the Platform. A repeated failure to bid on further competitions without an acceptable reason may result in the Supplier being suspended from the DPS, in accordance with Clause 10.8 (Partially ending and suspending the contract), for a period as decided by CCS." 18. Is the first sentence intended to be an absolute obligation on the Supplier to bid for all work (this would appear to be inconsistent with para 2.2 of DPS Schedule 7 which allows a Supplier to no bid)? 19. We note the language used here is "should" not "shall" or "must", further the second sentence appears to recognise that even with repeated failures, if there is an acceptable reason, then no remedy should result. This would appear to support the position that the first sentence is not an absolute obligation. Can you please confirm that this is the case? Regardless, can you please clarify what would constitute "a repeated failure" in this context (entitling CCS to suspend) and confirm if this is defined anywhere in the Contract? Similarly can you please clarify what an unacceptable reason would be in this context and again confirm if this is defined anywhere in the Contract. For example, would a decision to no bid because the terms of the proposed Order Form are unacceptable be an acceptable reason? 20. Paras 2.2.2(e) and 3 of DPS Schedule 7 both talk about the Supplier including in its response any discounts the Buyer may be entitled to under DPS Schedule 3. DPS Schedule 3 includes only a maximum daily rate. It makes no provision for discounts. Can you please confirm that discounts are not relevant for this DPS Contract? 21. The Self Audit Certificate in DPS Schedule 8 requires us to confirm that "...the orders and invoices have been procured under an appropriate and legitimate procurement route and could not have been procured under the DPS Contract." This does not appear to cater for the situation where the Goods / Services could have been procured under the DPS Contract, however, the Buyer elected to procure them elsewhere. Please confirm how this should be addressed in our certificate. 22. DPS Schedule 9 refers to Sub-contractors who "Process Cyber Essentials Data". This term does not appear to be defined in Joint Schedule 1. Please could you confirm where this is defined. 23. For any new Key Sub-contractors, the Supplier is expected to flow down a significant number of terms. The definition of a Key Sub-Contractor is very wide and includes e.g. where any Sub-Contractor is accountable for only 10% of the projected Order Contract value. Flowdown will not be possible where any Supplier is contracting with equipment vendors and resellers etc who contract on their standard terms. Yet such companies would fall within the definition of Key Sub-Contractor / Sub-Contractor. Can you please confirm that this is not the intention. 24. A number of other provisions included throughout the Contract make reference to Supplier Staff. To take just one example, clause 14.1 makes reference to Supplier Staff in the context of the data protection provisions. This term includes all sub-contractors. Again, it will not be possible to flow down the provisions that mention Supplier Staff where any Supplier is contracting with equipment vendors and resellers etc who contract on their standard terms. Can you please confirm that this is not the intention. 25. Joint Schedule 11 - Please confirm how you intend Subject Access Requests to be dealt with? Please confirm whether you envisage a joint controller agreement being entered into? 26. There are some references to Commencement Date in Order Schedule 2. We assume that this is incorrect, as the term is not defined and that for para 1.4 of Part C at least this is intended to be a reference to the transfer date? 27. The term "Delay" is used in Order Schedule 13. This term is not defined. We assume that this is intended to be a failure to meet a Milestone by the Milestone Date. 28. Under para 3.2 of Order Schedule 15, the Buyer can "provide revised instructions" to the Supplier's Contract Manager and the Contract Manager is then expected to implement them. It is unclear what this is intended to cover. Clearly the Supplier is required to comply with the Order Contract. This appears to suggest that the Buyer could give the Supplier any instructions and the Supplier has to comply. Can you please clarify what this is intended to cover. Thank you.
1. The supply at cost" refers to the cost to supply any materials, goods or services used by the Supplier to provide the Deliverables and "that cost is reimbursable by the Buyer" means that if CCS or the Buyer can get more favourable commercial terms the Buyer may enter into a direct agreement for the supply of the relevant items and require the Supplier to reduce the Charges by using the Variation Procedure. 3. If the Supplier is not providing any of the Deliverables, or is unable to provide them, the Supplier must immediately report this to the Contracting Authority. The Supplier must keep and maintain full and accurate records and accounts on everything to do with the Contract for 7 years after the End Date and this is relevant to prevent interruption to the delivery of frontline services. 4. There are 2 optional extension periods of up to 12 months each up to 15 March 2024. CCS is unable to provide a definitive answer to this question as this time. We will inform suppliers of our intention with regard to the likely length of any extension periods as soon as possible. 5. We would recommend taking your own legal advice as to which clauses or schedules may be covered under 10.5.7. 6. As this is dependent upon situation we suggest taking your own legal advice. 8. This is CCS' standard wording that is in all our agreements and aligns to all Governments standard contracts. We suggest seeking your own legal advice about what obligations exist under Joint Schedule 11. 9. 14.6 would be the correct cross reference 10. The Appointment Form only contains 2 Special Terms - Special Term 1 - Core Terms Clause 11.2 - replace "£5 million or 150%" with "£1 million or 100%". Special Term 2 - Core Terms Clause 11.5 - delete current text and replace with; "11.5 In spite of Clauses 11.1 and 11.2, the Supplier does not limit or exclude its liability for any indemnity given under Clauses 7.5, 8.3, 9.5, or 12.2 or Call-Off Schedule 2 (Staff Transfer) of a Contract. In spite of Clauses 11.1, 11.2 but subject to Clauses 11.3 and 11.4, the Supplier's aggregate liability in each and any Contract Year under each Contract under Clause 14.8 shall in no event exceed £10 million." There is no Special Term 3 as implied with your clarification within the DPS Appointment Form as contained within the Automation DPS Marketplace bid pack. 11. It is recommended to seek your own legal advice 12. Joint Schedule 4 forms part of the Order Form and therefore part of the contract. 13. It is recommended to seek your own legal advice. 14. This is correct. 15. DPS Schedule 4 (DPS Management) Para 3.5 states ""Suppliers should participate in further competitions when identified by appropriate filters using the Platform. A repeated failure to bid on further competitions without an acceptable reason may result in the Supplier being suspended from the DPS, in accordance with Clause 10.8 (Partially ending and suspending the contract), for a period as decided by CCS."" The obligation on the supplier is to respond. Schedule 7 (Order Procedure and Award Criteria) 2.2 sets out the supplier obligation to provide either 2.2.1 a statement to the effect that it does not wish to tender in relation to the Deliverables; or 2.2.2 the full details of its tender made in respect of the relevant Statement of Requirements. In the event that the Supplier submits such a tender, it should include, as a minimum: A response could be a short email telling the Contracting Authority that you are not bidding. That would meet the >=95% requirement. 16. The question regarding 'satisfaction' towards a supplier is carried out by CCS Net promotor scoring system, consisting of a of a rating scale question provided to the buyer by CCS. The questions are the same for each supplier and the scores are interpreted by the responses given by the buyer. CCS commercial intelligence calculates supplier Mean average scores from buyer feedback over the suppliers CCS history to form a 'Satisfaction score' in line with the DPS schedule 4 measures. 17. A Supplier is able to provide a statement that they do not wish to tender in accordance with Para 2.2 of DPS Schedule 7. Para 3.5 of DPS Schedule 4 states that a repeat failure to bid on further competitions without an acceptable reason may result in the Supplier being suspended from the DPS. Para 10.8 refers to Core Terms Clause 10.8 Partially ending and suspending the contract. 18. A Supplier is able to provide a statement that they do not wish to tender in accordance with Para 2.2 of DPS Schedule 7. Para 3.5 of DPS Schedule 4 states that a repeat failure to bid on further competitions without an acceptable reason may result in the Supplier being suspended from the DPS. A response could be a short email telling the Contracting Authority that you are not bidding. That would meet the >=95% requirement. 19. """DPS Schedule 4 (DPS Management) Para 3.5 states "Suppliers should participate in further competitions when identified by appropriate filters using the Platform. A repeated failure to bid on further competitions without an acceptable reason may result in the Supplier being suspended from the DPS, in accordance with Clause 10.8 (Partially ending and suspending the contract), for a period as decided by CCS. The obligation on the supplier is to respond. Schedule 7 (Order Procedure and Award Criteria) 2.2 sets out the supplier obligation to provide either 2.2.1 a statement to the effect that it does not wish to tender in relation to the Deliverables; or 2.2.2 the full details of its tender made in respect of the relevant Statement of Requirements. In the event that the Supplier submits such a tender, it should include, as a minimum: A response could be a short email telling the Contracting Authority that you are not bidding. That would meet the >=95% requirement." 20. Clause 2.2.3 states that any prices submitted shall reflect DPS Pricing where applicable and take into account any discount to which the Buyer may be entitled as set out in DPS Schedule 3 (DPS Pricing) - not all DPS Agreements will have a Pricing Schedule. And, as there is not a Pricing Schedule associated with this DPS (and therefore no discounts) this is not applicable to this DPS). This does not prevent a Supplier from offering a discount, if they wish to do so. This just means that Buyers aren't "entitled" to a previously agreed discount under this DPS. If a Supplier wishes to offer a discount, they can only do this where the option to do so is made clear up front in the Buyer's invitation to tender (ITT) and all Suppliers eligible to bid under this DPS must be able to offer a discount. Buyers should be very clear about any possibility of discounts from Suppliers in their ITT so that all Suppliers have a common understanding of this when bidding. 21 The Supplier does not need to specifically record the information to which this question pertains, within their Certificate. 22 The term "Process" should be read to have the same definition as the defined team "Processing". "Cyber Essentials Data" is a typographical error and should read "Cyber Essentials Scheme Data" and will therefore have the definition of that defined term. 23 CCS cannot offer this confirmation. The Supplier would be advised to seek their own legal/commercial advice with regards to complying with the obligations of the identified section. 24 CCS cannot offer this confirmation. The Supplier would be advised to seek their own legal/commercial advice with regards to complying with the obligations of the identified section. 25 In the event that the Parties are Joint Controllers in respect of Personal Data under the Contract, the Parties shall implement paragraphs that are necessary to comply with GDPR Article 26 based on the terms set out in Annex 2 to Joint Schedule 11 (Processing Data). 26 Commencement Date should be replaced with Start Date. 27 The term "Delay" is defined at point 1.1 of Order Schedule 13. 28. No further advice or guidance can be provided. The Supplier should read the stated Schedule in the context of the full Document package.
Answered
07/06/2021 13:56
2. Apologies for chasing this, however, we are still awaiting a response to the clarification questions below. Can you please provide an update on when we can expect a response to these queries; 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.
1. 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. 2. A DPS guarantee would apply at the DPS level and likewise a guarantee at Order Contract level will apply accordingly. The recommended threshold score is assessed to cover the minimum amount of work to expected to tender through this DPS. A DPS Guarantee may be required if a supplier fails to meet the credit rating threshold to join this DPS. If a buyer were to require the delivery of a larger contract value, they are able to carry out additional financial checks and request an Order Guarantee for that specific piece of work. CCS are not in a position to provide further advice which may amount to us providing legal advice. We therefore suggest you take legal advice where you see fit.
Answered
17/05/2021 13:56
3. 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.
A DPS guarantee would apply at the DPS level and likewise a guarantee at Order Contract level will apply accordingly. The recommended threshold score is assessed to cover the minimum amount of work to expected to tender through this DPS. A DPS Guarantee may be required if a supplier fails to meet the credit rating threshold to join this DPS. If a buyer were to require the delivery of a larger contract value, they are able to carry out additional financial checks and request an Order Guarantee for that specific piece of work. CCS are not in a position to provide further advice which may amount to us providing legal advice. We therefore suggest you take legal advice where you see fit.
Answered
17/05/2021 13:51
4. Good afternoon, We are trying to amend one of our answers to the SQ however there does not appear to be an option to do so. Do we have to start the application process again? If so, how do we do this?
Dear bidder, Suppliers are unable to amend/update any of their answers within the Selection Questionnaire (SQ) and Registered 1 stage. This is reflected within the bid pack READ FIRST DPS Needs document which explains 'Please note - you CANNOT amend your responses to any of the standard Selection Questionnaire responses once you have progressed on to the DPSQ.' If suppliers wish to amend/update any of the SQ questions, suppliers will have to contact the platform helpdesk at NQC to delete the previous application and re-submit and restart the application process with the amended/updated answers before progressing onto the specific DPSQ.
Answered
20/04/2021 14:17
5. Please can you confirm that contract examples are not required as part of the submission?
This is covered in the bid pack First Read DPS needs document I can confirm there are questions in the Selection Questionnaire that are not applicable for RM6173 Automation Marketplace procurement, therefore please note, a response is NOT required to the questions as detailed below: • Part 1: (Contract Example 1) - Q133 • Part 1: (Contract Example 2) - Q134 • Part 1: (Contract Example 3) - Q135
Answered
14/04/2021 12:24
6. on discussing options with the prospective buyer of automation licensing and services can we jointly sign a variation form? such as perpetual licenses to annual subscription and any new IPR created for the customer by us retains with us.
It is only open to Buyers to propose Special Terms to make variations to the original T&Cs based on their own requirements.
Answered
09/04/2021 13:42
7. Clauses 7.1 - Please can the Authority consider that although the Supplier is able to provide reasonable co-operation to the Authority in the event that it receives a claim under pursuant to clause 7.1, the Supplier's contractual obligations should not extend to assisting the Authority in dealing with such claims as that may go beyond the intended scope of services. The Supplier would also not be permitted to disclose information about third parties.
In the event of the Authority receiving a claim relating to the Supplier Staff, the Supplier's contractual obligations should extend to assisting the Authority.
Answered
09/04/2021 13:35
8. Applicable law: - We note that the indemnity for applicable law (clause 12.2 of the 'CCS Core Terms') is excluded from the CCS Core Terms cap (greater of £5M or 150%). Can you please confirm this indemnity be brought under a mutually agreeable liability cap?
The potential liabilities in respect of breach of Clause 12.2 must stay as specified in Clause 11.5
Answered
09/04/2021 13:32
9. 'DPS Special Term 2' states that in spite of clauses 11.1 and 11.2 (of the 'CCS Core Terms') but subject to clauses 11.3 and 11.4 (of the 'CCS Core Terms') the supplier's aggregate liability in each and any contract year under each contract under clause 14.8 ('CCS Core Terms') shall in no event exceed £10Million. We would therefore like to confirm whether the indemnity for Data Protection breaches (Clause 14.8 in the 'CCS Core Terms') can be subject to 'DPS Special Term 1' (greater of £1M or 100% of yearly charges)?
Special Term 2 in the DPS Appointment Form reduces the limit of liability for Data Protection breaches to £10M. This is distinct from the earlier Special Term 1 which reduces the limit of liability under Clause 11.2 to £1M. We will not reduce the limit of liability in respect of breach of Clause 14.8 any further.
Answered
09/04/2021 13:31
10. Limitation of liability: Clause 11.2 under the 'CCS Core Terms' states that the mutual liability cap will be £5M or 150% of the estimated yearly charges unless otherwise specified in the Order Form. We note that if the 'DPS Special Terms' ('Special Term 1') are to take precedence then the liability cap will be reduced to the greater of £1M or 100% of yearly charges. We would therefore like to confirm whether this 'DPS special term' will apply in all circumstances?
Special Term 1 in the DPS Appointment Form takes precedence amending the figures specific by Core Terms Clause 11.2.
Answered
09/04/2021 13:30
11. I am already a DOS5 supplier . I wish to be a supplier for Automation technology and platform . Can I check how do I get registered as a supplier ?
The Automation DPS can be applied for by clicking the "Access as a Supplier" option within the DPS landing page. https://supplierregistration.cabinetoffice.gov.uk/dps#technology
Answered
08/04/2021 12:42
12. We have asked the below questions which have not been answered. Could you please clarify on them (or confirm that Financial Difficulties schedule does not apply on DPS level and we should seek the answers on an Order Contract level)? 1. We refer to DPS Schedule 7 cl. 2.2.1 which allows to reject the bid, but on the other hand as per DPS Schedule 4 cl.3.4 - repeated failure to bid may result in suspension from DPS. Can you please confirm if Supplier can reject the Order? 2. 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? 3. 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? 4. 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? 5. 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. 6. 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?
Dear Bidder,1. "DPS Schedule 4 (DPS Management) Para 3.5 states ""Suppliers should participate in further competitions when identified by appropriate filters using the Platform. A repeated failure to bid on further competitions without an acceptable reason may result in the Supplier being suspended from the DPS, in accordance with Clause 10.8 (Partially ending and suspending the contract), for a period as decided by CCS." The obligation on the supplier is to respond. Schedule 7 (Order Procedure and Award Criteria) 2.2 sets out the supplier obligation to provide either 2.2.1 a statement to the effect that it does not wish to tender in relation to the Deliverables; or 2.2.2 the full details of its tender made in respect of the relevant Statement of Requirements. In the event that the Supplier submits such a tender, it should include, as a minimum: An acceptable response to a tender opportunity could be a short email telling the Contracting Authority that you are not bidding. That would meet the >=95% requirement. 2.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. 3. 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. 4.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 relevant PPNs especially with regards to Financial matters. As per the PPNs we would anticipate Customers utilising alternative methods of resolution, before relying on the clauses of the Contract. 5. 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). 6. 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
30/03/2021 12:00
13. How can an appointed supplier check currently open or on-going Automation Marketplace opportunities/pqq/ITT ?
Dear bidder, there are no platforms on our Automation Marketplace which centrally show customer opportunities. This is dependant on where the customer runs the opportunity and via their chosen eSourcing portal for the opportunity. However, CCS would typically expect the contract to be posted to 'Contracts Finder' post-award.
Answered
23/03/2021 10:27
14. We refer to DPS Schedule 7 cl. 2.2.1 which allows to reject the bid, but on the other hand as per DPS Schedule 4 cl.3.5 - repeated failure to bid may result in suspension from DPS. Can you please confirm if Supplier can reject the Order?
DPS Schedule 4 (DPS Management) Para 3.5 states 'Suppliers should participate in further competitions when identified by appropriate filters using the Platform. A repeated failure to bid on further competitions without an acceptable reason may result in the Supplier being suspended from the DPS, in accordance with Clause 10.8 (Partially ending and suspending the contract), for a period as decided by CCS.' The obligation on the supplier is to respond. Schedule 7 (Order Procedure and Award Criteria) 2.2 sets out the supplier obligation to provide either 2.2.1 a statement to the effect that it does not wish to tender in relation to the Deliverables; or 2.2.2 the full details of its tender made in respect of the relevant Statement of Requirements. In the event that the Supplier submits such a tender, it should include, as a minimum: A Supplier response could be a short email telling the Contracting Authority that you are not bidding. That would meet the >=95% requirement.
Answered
18/03/2021 12:18
15. Hi, In relation to the question 'Does your organisation have a fully comprehensive occupational health screening service in place?', are you looking for data on whether we have an occupational health provision (and then the confirmation letter and contract start and end dates for that), or looking for information on actual health screenings provision such as health assessments? Thanks
Please refer to the RM6173 Automation Marketplace DPS Needs document which is held in the Bid Pack. Your query relates to SQ 161. Point 72 of the Bid Pack states that 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 to the questions as detailed below: Part 1: (CPV Codes) - Q3. Part 1: (Contract Example 1) - Q133. Part 1: (Contract Example 2) - Q134. Part 1: (Contract Example 3) - Q135. Part 2: (Product Liability Insurance) - Q143. Part 3: (Steel) Q147 - Q149. Part 3: (Supply Chain Management) Q150 - Q154. Part 3: (Department of Health Questions) -Q157 -Q161 Part 3: (NHS Questions) Q157 - Q161
Answered
10/03/2021 10:54
16. Reference DPS Schedule 4 (DPS Management) Para 4 How the Supplier's Performance will be measured Performance Criteria Item 9 Responsiveness to Invitation to Tenders Responding to Invitations to Tender issued via the agreement on 95% of Order Procedures, (within location region) Can you please advise if a Supplier response, advising a Buyer that it does not intend to bid for an Invitation would be considered as a valid response and hence positively included in the measure?
DPS Schedule 4 (DPS Management) Para 3.5 states 'Suppliers should participate in further competitions when identified by appropriate filters using the Platform. A repeated failure to bid on further competitions without an acceptable reason may result in the Supplier being suspended from the DPS, in accordance with Clause 10.8 (Partially ending and suspending the contract), for a period as decided by CCS'. If there is a justified reason as to why a Supplier were unable to bid; for example, if a Supplier felt they did not meet the customer requirements or if a supplier had concerns about the technical or legal feasibility, or commercial viability of the services, CCS will on a case by case basis determine if this is a justified reason for not bidding.
Answered
10/03/2021 10:36
17. Good afternoon, in relation to the clarification response on the DPS Order Schedule 8 (Business Continuity) being replaced by DPS Order Schedule 14 (Service Levels) on the portal, having just downloaded the schedules, it appears that the detail in the DPS Order Schedule 8 (Business Continuity) contains the detail from DPS Order Schedule 14 (Service Levels). Can you please provide the detail for DPS Order Schedule 8 (Business Continuity).
DPS order schedule 8 contains the detail for business continuity and can be downloaded from the Bid Pack.
Answered
10/03/2021 10:31
18. Hi, We raised a CQ on 3rd June, but haven't received a response to that. Please if you can reply to our query: Question - In relation to the question 'Does your organisation have a fully comprehensive occupational health screening service in place?', are you looking for data on whether we have an occupational health provision (and then the confirmation letter and contract start and end dates for that), or looking for information on actual health screenings provision such as health assessments? Thanks
Please refer to the RM6173 Automation Marketplace DPS Needs document which is held in the Bid Pack. Your query relates to SQ 161. Point 72 of the Bid Pack states that 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 to the questions as detailed below: Part 1: (CPV Codes) - Q3. Part 1: (Contract Example 1) - Q133. Part 1: (Contract Example 2) - Q134. Part 1: (Contract Example 3) - Q135. Part 2: (Product Liability Insurance) - Q143. Part 3: (Steel) Q147 - Q149. Part 3: (Supply Chain Management) Q150 - Q154. Part 3: (Department of Health Questions) -Q157 -Q161 Part 3: (NHS Questions) Q157 - Q161
Answered
10/03/2021 10:25
19. For the avoidance of doubt, please can you clarify which certifications are required to be awarded a place on the agreement, for example it is ISO 27001 and Cyber Essentials?
Suppliers must have a valid Cyber Essentials Certificate and/or Cyber Essentials Plus Certificate in place, and shall provide a copy of this to to CCS at award of the first contract. Alternative certifications will not be be accepted.
Answered
10/03/2021 10:23
20. Clauses 7.1 - Please can the Authority consider that although the Supplier is able to provide reasonable co-operation to the Authority in the event that it receives a claim under pursuant to clause 7.1, the Supplier's contractual obligations should not extend to assisting the Authority in dealing with such claims as that may go beyond the intended scope of services. The Supplier would also not be permitted to disclose information about third parties.
In the event of the Authority receiving a claim relating to the Supplier Staff, the Supplier's contractual obligations should extend to assisting the Authority.
Answered
10/03/2021 10:18
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