Clarifications

2442. Good afternoon, In reference to the following questions, please can you clarify what consists of documentary evidence? Please confirm what is meant by 'Upload documentary evidence for a certificate' 179. Upload documentary evidence for a list of relevant principal contracts for goods and/or services provided in the last three years 180. Upload documentary evidence for a certificate for each principal contract for goods and/or services provided in the last three years Thank you

2432. The DPS has been re-published on Find a Tender Service on 13th January. We believe that this is an extension to the existing DPS and that therefore existing suppliers under RM3825 do not need to take any action. Is this correct?

1507. Can you please outline(or refer me to a relevant guide) the process of getting new suppliers to join or register on this DPS.

1091. Could you please clarify if my interpretation on the Management Levy is correct. Clause 20, page 18: This means that the supplier only pays a levy of 1% / month currently where they have had business that month and not a rolling 12 month levy payment. "Management Levy" means the sum payable by the Supplier to the Authority being an amount equal to (1%) of all Charges for the Goods and/or Services invoiced to the Contracting Authorities by the Supplier (net of VAT) in each Month throughout the Dynamic Purchasing System Period and thereafter until the expiry or earlier termination of all Contracts entered pursuant to this Dynamic Purchasing System Agreement;

283. There are 12 unanswered Clarification Questions on the final page. Can you confirm when these will be answered ?

154. Why has the old Clause 24.6 been removed in the most recent update to the DPS Agreement, i.e. the following deleted text "A Party shall not be responsible for any Loss under this Dynamic Purchasing System Agreement if and to the extent that it is caused by the default ("Default" where such a default is on the part of the Supplier) of the other". Why should the Parties not have the protection of that clause?

153. Can you please provide copies of all questionnaires / forms that bidders are required to complete in order to apply for a place on the RM3825 DPS. We understand that depending on the answers we provide to the initial Selection Questionnaire we may be required to complete additional forms. In order to complete our governance for submission of our DPS application, we require advance sight of all information that may ultimately be required.

71. Call Off Terms Clause 10 and Call Off Schedule 6 (Service Levels) Annex 2 to Part A: Critical Service Failure: We refer to Clause 10.1 and the description of what constitutes a Critical Service Failure at Call Off Schedule 6 (Service Levels) Annex 2 to Part A: Critical Service Failure. Does Clause 10.1 and the occurrence of a Critical Service Failure mean that on the third occasion that the Service Failure Threshold is breached that instead of receiving Service Credits the Customer is entitled to receive (by way of compensation) the whole charges (in respect of the relevant Service Instance)?

152. We note the response to our earlier question relating to Schedule 10 Guarantee (question ID #34). The response refers bidders to clauses 2.1 & 2.4 of Schedule 10 but those clauses do not contain any express clarification that amounts recovered are not paid twice. The response refers to consistency with other CCS agreements, but removal of this clause is not consistent with the CCS RM1045 terms upon which RM3825 is based. We assume that the Authority is not seeking the right to recover amounts twice, so assume that clarification to the contrary is ultimately acceptable. If the Authority's concerns are with the drafting of that removed clause 2.5 rather than an objection to clarification in the deed, then perhaps the following drafting would be preferred and could be included at the end of the deed rather than in section 2: "The Beneficiary shall not be entitled to recover sums under this Deed of Guarantee to the extent that it has already recovered amount(s) in respect of the matter or circumstance that gave rise to the claim under this Deed of Guarantee from the Supplier under the Guaranteed Agreement.".

151. We understand that under law we will be a Controller in relation to certain Personal Data provided by the Customer to the Supplier that the Supplier processes for its own limited purposes e.g. operational contact details that the Supplier uses for contract management purposes. Could clause 30.7.1 be updated to reflect the Supplier's role as a Controller under this Agreement?

150. The definition of Data Loss Event, in both Schedule 1 of the RM3825 Call Off Terms and Schedule 1 of the RM3825 DPS Agreement, appears to have been drafted to reflect the definition of Personal Data Breach from the GDPR, for consistency can the definition of Data Loss Event be amended to the drafting of the actual definition of Personal Data Breach?

149. What notification requirements is the Authority referring to in Clause 30.7.5 of the RM3825 Call Off Terms and Clause 21.6.5 of the RM3825 DPS Agreement? Are the notification requirements referred to in these clauses those relating to a Supplier's breach notification requirements under Article 33(2)?

148. Clause 21.6.9(c) of the RM3825 DPS Agreement will be unacceptable because such access will cause the breach of the Supplier's other agreements with third parties (including agreements with public and private sector) and would provide inappropriate access to third party information. The obligation at 21.6.9(b) to cooperate fully with an Authority investigation should be sufficient in the scenario envisaged in Clause 21.6.9. Could you please remove Clause 21.6.9(c) of the RM3825 DPS Agreement, this will be a critical matter for our forthcoming governance reviews.

122. 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.

136. 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?

133. 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?

132. 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?

131. 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?

130. 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)?

128. 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?