Clarifications

147. 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

146. 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?

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

144. 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;

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

134. 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?

133. 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.

132. 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.".

131. 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?

130. 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?

129. 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)?

128. 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.

127. 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?

126. 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?

125. Clause 30.7.9(c) of the RM3825 Call Off Terms will be unacceptable as 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 30.7.9(b) to cooperate fully with a Customer investigation should be sufficient in the scenario envisaged in Clause 30.7.9. Could you please remove Clause 30.7.9(c) of the RM3825 Call Off Terms, this will be a critical matter for our forthcoming governance reviews.

124. In earlier versions of the RM3825 DPS Agreement and in the RM1045 drafting upon which the DPS Agreement is based, there was drafting that made the allocation of Controller and Processor roles subject to the existence of Personal Data in the related service transactions, we believe that the previous CCS drafting should be retained in Clause 21.6.1 because there may be service transactions where there is no personnel data; this would avoid the incorrect allocation of roles for all parties in those instances.

120. Main Agreement schedule 9 clause 4: We note the responses to other questions on this clause and we disagree that the changes the Authority has introduced into clause 4 are "reasonable and proportionate to assure the Supplier's compliance with its obligations under the DPS Agreement". In our opinion it is not reasonable for a Supplier to determine that a Customer has followed a 'legitimately tendered procurement route' or whether the customer has followed an 'Authority mandated process'. Can the Authority please reconsider its position with respect to this clause?

119. Main Agreement schedule 4 Part 2 (i): The current drafting of this clause is unclear, could the Authority please clarify the need for an European Single Procurement Document and consider redrafting this clause?

118. Main Agreement schedule 2 Part A, clause 3.1.5. Can the Authority please define and clarify the use of the term 'Pay-As-You-Go'? We note that many current commercial models used in the telecommunications space could already be considered 'Pay-As-You-Go'.

117. Main Agreement clause 27.6: Advance notification of a Change of Control (or potential Change of Control) is, our opinion, not lawful as it would likely force the Supplier to be in breach of insider trading regulations. Can the Authority please confirm that it shall revert clause 27.6 to the drafting contained in NSF?