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Clarifications

There are 127 clarifications for this DPS

There are 12 unanswered Clarification Questions on the final page. Can you confirm when these will be answered ?
CCS are not aware of any clarification questions that have not been answered. Can you clarify what questions you are referring to?
Answered
Feb-13-2018 17:05
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?
Wording relating to the Authority's liability for losses where there is a default has been retained. Similiarly there is provision for Supplier liability in the case of Supplier default. We do not feel that the old clause 24.6 is needed.
Answered
Nov-06-2017 22:44
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.
Questions are available to download. Firstly, ensure the filters are set to 'any' on the 'Profiles' tab of your Supplier Registration Service Dashboard. Scroll down to find the Questionnaire that you wish to download the questions for, and click on 'View'. Once you have clicked on 'View', you will be directed into the Questionnaire with all the Questions and Answers for review. On the right hand side, under 'Other options' you can click on 'Download questions'. This will download a PDF version of the Questionnaire - this will not include any answers provided. You are able to download questions for the assessment you are completing without having fully submitted the questionnaire. Whilst completing a questionnaire, a user can also choose at any point, to 'Save and view answers' return to their Dashboard and repeat the above steps. A user also has the option to 'Download questions' after completing (an SQ or DPSQ) questionnaire.
Answered
Nov-06-2017 22:40
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)?
We will insert a new clause 35.1.3(d)(C) in the HSCN call off contract as follows: 35.1.3(d)(C) - the Customer shall not be entitled to payment of the Charges for Critical Service Level Failure pursuant to clause 10.1 (Critical Service Level Failure).
Answered
Nov-06-2017 22:36
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.".
Schedule 10 was updated in line with standard drafting, which now omits the referenced paragraph.
Answered
Nov-06-2017 19:04
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?
The clause of the Call Off Terms sets out that the customer is "a Data Controller" and that the supplier is "a Data Processor". This does not preclude the supplier also being a Data Controller in certain regards, it sets out the general relationship in regards to the contract. The Data Protection Laws cover the management of Personal Data generally under the contract.
Answered
Nov-06-2017 19:03
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?
The definition of "Data Loss Event" will be amended to bring it in line with the drafting of Personal Data Breach from the GDPR.
Answered
Nov-06-2017 19:02
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)?
While the clauses would relate to the obligations under Article33(2) the drafting is intended to cover any similar obligations that may be found in the Data Protection Laws either currently or in the future.
Answered
Nov-06-2017 19:01
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.
We will seek to clarify and limit the authority rights under this section by amending "(c) provide immediate access to the Supplier's premises and systems for the purposes of any Authority investigation under this Call Off Contract;" to "(c) provide immediate access to the Supplier's premises and systems for the purposes of any Authority investigation being conducted pursuant to Clause 21.6.9 (b) under this Call Off Contract;"
Answered
Nov-06-2017 19:00
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.
Within the context and auspices of the Call Off Contract the HSCN Consumer will always be the Customer. In your example subordinate users are not party to the Call Off Contract.
Answered
Nov-06-2017 18:58
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?
Regardless of when it becomes apparent and is exercised this indemnity protects the Authority against any use of the Services infringing IPR owned and/or licensed by the Supplier and should be an obligation on the Supplier. The Authority has the obligations included under Clause 20.2.6.
Answered
Nov-06-2017 18:57
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?
Regarding the DPS Agreement this can effectively lapse without a formal termination should a Supplier choose to no longer bid in any Calls for Competition. Clearly any Supplier which has won business under the DPS and is delivering Services under a Call Off Contract is bound by Call Off Clause 3.2.1 which also requires the Supplier to maintain HSCN Compliance over the Call Off Period. The terms will remain as drafted.
Answered
Nov-06-2017 18:56
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?
This provision exists to ensure that ""...all reasonable information and assistance"" is available to be provided by the Supplier in respect of the Services as part of the due diligence exercise being conducted by an incoming Relevant Supplier. It is a requirement of the Authority, the HSCN Authority and Customers and will remain as drafted. We will not be reverting to the Network Services Framework version of the text.
Answered
Nov-06-2017 18:55
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?
Use of a party's opportunity to exert influence on another and/or facilitate the other's attendance is what is intended by the use of best endeavours. Satisfying a Multi Party Dispute is in the interests of all parties and so it is right that best endeavours are used rather than simply reasonable endeavours.
Answered
Nov-06-2017 18:55
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)?
Paragraph 9.3 of Part B of Call Off Schedule 4 enables the Customer to categorise the Supplier's failure to satisfy Milestone Achievement Criteria as a material Default and could give rise to other financial remedies beyond Delay Payments (where these had been specified as applying).
Answered
Nov-06-2017 18:54
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?
Acknowledging and excepting the exclusions under Call Off Clause 5.5.1(b) where a Customer has specified that Delay Payments are applicable, these are the exclusive financial remedies available to the Customer in the event of non-Achievement of a Milestone. The exceptions listed include where a Default under Clause 37 (except 37.5) had given rise to a Customer right of termination any other reparations due (e.g. repayment of Charges paid and recovery of Losses) would also be payable. These relate to the Achievement (or otherwise) of the Milestone in question.
Answered
Nov-06-2017 18:53
Why is there no Commercially Sensitive Information schedule in the DPS Agreement? In RM1045 this was Schedule 13. How does the Authority otherwise expect to receive indication of this classification of information from Suppliers pursuant to the definition of Commercially Sensitive Information in Schedule 1 of the DPS Agreement, is this to be confirmed in writing under separate cover?
DPS Agreements are not personalised per supplier, so information cannot be recorded in a Schedule in the same way as they would be for a framework agreement. Any information submitted by a supplier as part of their SQ response should be clearly designated as ""Confidential"" if a supplier wants to be certain it be treated as such, subject to the Authority's responsibilities under relevant legislation and disclosure circumstances.
Answered
Nov-06-2017 18:52
Clause 37.1.2 suggests that Schedule 2 Part B (Key Performance Indicators) confers benefits to third parties yet we cannot see any such rights in Schedule 2 Part B, has the reference to this schedule been included in Clause 37.1.2 in error?
We agree that the inclusion is in error, and will amend 37.1.2 to remove the words "2 Part B (Key Performance Indicators), "
Answered
Nov-06-2017 18:50
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.
All information that can be shared has been shared. This is a circumstance which affects all suppliers under CCS commercial arrangements and is not isolated nor specific to this agreement. The format of the MI template will not change, just the web portal that is used to upload it.
Answered
Nov-06-2017 18:48
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.
Regardless of when it becomes apparent and is exercised this indemnity protects the Authority against any use of the Services infringing IPR owned and/or licensed by the Supplier and should be an obligation on the Supplier. The Authority has the obligations included under Clause 20.2.6.
Answered
Nov-06-2017 18:47
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