FRAMEWORK AGREEMENT FOR THE PROVISION OF
CROWN COMMERCIAL SERVICE
and
[SUPPLIER NAME]
FRAMEWORK AGREEMENT FOR THE PROVISION OF
APPRENTICESHIP TRAINING AND RELATED SERVICES – Lot A
Agreement Ref: RM3823
GUIDANCE NOTE: After the decision to award this Framework Agreement has been made and before it is signed, the Parties should ensure that they have read the text and guidance notes highlighted in GREEN, taken any actions necessary as indicated in the guidance notes and/or square brackets and then delete the guidance notes and the square brackets (and the text included in the square brackets if not used) from this document. The Authority and the Supplier will agree between them where the Supplier needs to provide certain information to enable the Authority to complete this task. The guidance notes are not exhaustive but have been included to assist the parties in completing any information required with sufficient detail. Use the checklist below to navigate through the relevant provisions and the accompanying guidance notes which are highlighted in GREEN in the main document:
1. Recitals: In preamble to the Framework Agreement;
2. Clause 18 Records, Audit Access and Open Book Data: in Clause 18.4.4;
3. Clause 46 Notices: Clause 46.6;
4. Signature page (after Clause 49);
5. Framework Schedule 2 – Part B (Goods and/or Services and Key Performance Indicators): In table under paragraph 1.3;
6. Framework Schedule 3 (Framework Prices and Charging Structure): In Annexes 1 to 3;
7. Framework Schedule 7 (Key Sub-Contractors): In paragraph 1 of Schedule 7;
8. Framework Schedule 8 (Framework Management): In paragraph 2.2.4 of Schedule 7;
9. Framework Schedule 10 (Annual Self Audit Certificate);
10. Framework Schedule 11 (Marketing): In paragraph 2.;1
11. Framework Schedule 13 (Guarantee);
12. Framework Schedule 14 (Insurance Requirements); in paragraph 7.2 and Annex 1;
13. Framework Schedule 16 (Financial Distress), including Annex 2 to Schedule 16;
14. Framework Schedule 17 (Commercially Sensitive Information): In paragraph 1.3;
15. Framework Schedule 18 (Dispute Resolution Procedure): In paragraph 3.1;
16. Framework Schedule 19 (Variation Form);
17. Framework Schedule 21 (Tender); after paragraph 1.2.; and
18. Framework Schedule 22 (Transparency Reports).
TABLE OF CONTENT
1. DEFINITIONS AND INTERPRETATION 7
4. SCOPE OF FRAMEWORK AGREEMENT 9
6. ASSISTANCE IN RELATED PROCUREMENTS 9
7. REPRESENTATIONS AND WARRANTIES 10
9. CYBER ESSENTIALS SCHEME CONDITION 12
B. DURATION OF FRAMEWORK AGREEMENT 13
C. FRAMEWORK AGREEMENT PERFORMANCE 13
11. FRAMEWORK AGREEMENT PERFORMANCE 13
12. KEY PERFORMANCE INDICATORS 14
16. CALL OFF PERFORMANCE UNDER FRAMEWORK AGREEMENT 14
D. FRAMEWORK AGREEMENT GOVERNANCE 15
17. FRAMEWORK AGREEMENT MANAGEMENT 15
18. RECORDS, AUDIT ACCESS AND OPEN BOOK DATA 15
E. MANAGEMENT CHARGE, TAXATION AND VALUE FOR MONEY PROVISIONS 19
21. PROMOTING TAX COMPLIANCE 20
F. SUPPLIER PERSONNEL AND SUPPLY CHAIN MATTERS 21
25. SUPPLY CHAIN RIGHTS AND PROTECTION 21
G. INTELLECTUAL PROPERTY AND INFORMATION 25
26. INTELLECTUAL PROPERTY RIGHTS 25
27. PROVISION AND PROTECTION OF INFORMATION 26
3
J. TERMINATION AND SUSPENSION 36
33. AUTHORITY TERMINATION RIGHTS 36
34. SUSPENSION OF SUPPLIER'S APPOINTMENT 40
35. CONSEQUENCES OF EXPIRY OR TERMINATION 40
K. MISCELLANEOUS AND GOVERNING LAW 42
37. ASSIGNMENT AND NOVATION 42
38. WAIVER AND CUMULATIVE REMEDIES 43
39. RELATIONSHIP OF THE PARTIES 43
40. PREVENTION OF FRAUD AND BRIBERY 43
49. GOVERNING LAW AND JURISDICTION 49
FRAMEWORK SCHEDULE 1: DEFINITIONS 51
FRAMEWORK SCHEDULE 2: GOODS AND/OR SERVICES AND KEY PERFORMANCE INDICATORS 69
FRAMEWORK SCHEDULE 3: FRAMEWORK PRICES AND CHARGING STRUCTURE 75
FRAMEWORK SCHEDULE 4: TEMPLATE ORDER FORM AND TEMPLATE CALL OFF TERMS 80
ANNEX 1: TEMPLATE ORDER FORM 80
ANNEX 2: TEMPLATE CALL OFF TERMS 81
FRAMEWORK SCHEDULE 5: CALL OFF PROCEDURE 82
FRAMEWORK SCHEDULE 6: NOT USED 84
FRAMEWORK SCHEDULE 8: FRAMEWORK MANAGEMENT 86
FRAMEWORK SCHEDULE 9: MANAGEMENT INFORMATION 89
ANNEX 1: MI REPORTING TEMPLATE 93
FRAMEWORK SCHEDULE 10: ANNUAL SELF AUDIT CERTIFICATE 93
FRAMEWORK SCHEDULE 11: MARKETING 96
FRAMEWORK SCHEDULE 12: CONTINUOUS IMPROVEMENT AND BENCHMARKING 97
FRAMEWORK SCHEDULE 13: GUARANTEE 102
FRAMEWORK SCHEDULE 14: INSURANCE REQUIREMENTS 112
ANNEX 1: REQUIRED INSURANCES 115
FRAMEWORK SCHEDULE 15: NOT USED 119
FRAMEWORK SCHEDULE 16: FINANCIAL DISTRESS 120
ANNEX 1: RATING AGENCIES 125
ANNEX 2: CREDIT RATINGS & CREDIT RATING THRESHOLDS 126
FRAMEWORK SCHEDULE 17: COMMERCIALLY SENSITIVE INFORMATION 127
FRAMEWORK SCHEDULE 18: DISPUTE RESOLUTION PROCEDURE 128
FRAMEWORK SCHEDULE 19: VARIATION FORM 135
FRAMEWORK SCHEDULE 20: CONDUCT OF CLAIMS 136
FRAMEWORK SCHEDULE 21: TENDER 138
FRAMEWORK SCHEDULE 22: TRANSPARENCY REPORTS 139
FRAMEWORK SCHEDULE 23: SECURITY MANAGEMENT 139
This Agreement is made on [insert Framework Commencement Date dd/mm/yyyy]
BETWEEN:
(1) the Minister for the Cabinet Office ("Cabinet Office") as represented by Crown Commercial Service, which is an executive agency and operates as a trading fund of the Cabinet Office, whose offices are located at 0xx Xxxxx, Xxx Xxxxxxx, Xxx Xxxx Xxxxxx, Xxxxxxxxx X0 0XX (the "Authority"); and
(2) [Insert COMPANY’S NAME] which is a company registered in [England and Wales] under company number [insert company no.] and whose registered office is at [insert address] (the "Supplier").
RECITALS:
A The Authority placed a contract notice [Insert the OJEU reference number] on [Insert date of issue of OJEU dd/mm/yyyy] (the "OJEU Notice") in the Official Journal of the European Union seeking tenders from providers of apprenticeship training and related services interested in entering into a framework arrangement for the supply of such Goods and/or Services to Contracting Authorities.
B Not Used
C On [Insert date of issue of ITT dd/mm/yyyy] the Authority issued an invitation to tender (the "Invitation to Tender") for the provision of apprenticeship training and related services.
D In response to the Invitation to Tender, the Supplier submitted a tender to the Authority on [insert date dd/mm/yyyy] (set out in Framework Schedule 21 (Tender)) (the “Tender”) through which it represented to the Authority that it is capable of delivering the Goods and/or Services in accordance with the Authority's requirements as set out in the Invitation to Tender and, in particular, the Supplier made representations to the Authority in the Tender in relation to its competence, professionalism and ability to provide the Goods and/or Services in an efficient and cost effective manner.
E On the basis of the Tender, the Authority selected the Supplier to enter into a framework agreement for Lot(s) [Guidance Note: specify awarded Lot(s) if not a single Lot Framework] to provide the Goods and/or Services to CSL from time to time on a call off basis in accordance with this Framework Agreement.
F This Framework Agreement sets out the award and calling-off ordering procedure for purchasing the Goods and/or Services which may be required by the Authority or CSL and its Service Recipients, the template terms and conditions for any Call Off Contract which CSL may enter into and the obligations of the Supplier during and after the Framework Period. For the avoidance of doubt, the Supplier is not permitted to enter into a Call Off Contract under this Framework Agreement with a Service Recipient or any Other Contracting Authority directly.
G It is the Parties' intention that there will be no obligation for CSL to award any Call Off Contracts under this Framework Agreement during the Framework Period.
A. PRELIMINARIES
1. DEFINITIONS AND INTERPRETATION
1.1 Definitions
1.1.1 In this Framework Agreement, unless the context otherwise requires, capitalised expressions shall have the meanings set out in Framework Schedule 1 (Definitions) or the relevant Framework Schedule in which that capitalised expression appears.
1.1.2 If a capitalised expression does not have an interpretation in Framework Schedule 1 (Definitions) or the relevant Framework Schedule, it shall have the meaning given to it in this Framework Agreement. If no meaning is given to it in this Framework Agreement, it shall in the first instance be interpreted in accordance with the common interpretation within the relevant market sector/industry where appropriate. Otherwise, it shall be interpreted in accordance with the dictionary meaning.
1.2 Interpretation
1.2.1 In this Framework Agreement, unless the context otherwise requires:
(a) the singular includes the plural and vice versa;
(b) reference to a gender includes the other gender and the neuter;
(c) references to a person include an individual, company, body corporate, corporation, unincorporated association, firm, partnership or other legal entity or Crown Body;
(d) a reference to any Law includes a reference to that Law as amended, extended, consolidated or re-enacted from time to time;
(e) the words "including", "other", "in particular", "for example" and similar words shall not limit the generality of the preceding words and shall be construed as if they were immediately followed by the words "without limitation";
(f) references to “writing” include typing, printing, lithography, photography, display on a screen, electronic and facsimile transmission and other modes of representing or reproducing words in a visible form and expressions referring to writing shall be construed accordingly;
(g) references to “representations” shall be construed as references to present facts; to “warranties” as references to present and future facts; and to “undertakings” as references to obligations under this Framework Agreement;
(h) references to “Clauses” and “Framework Schedules” are, unless otherwise provided, references to the clauses and schedules of this Framework Agreement and references in any Framework Schedule to paragraphs, parts, annexes and tables are, unless otherwise provided, references to the paragraphs, parts, annexes and tables of the
Framework Schedule or the part of the Framework Schedule in which the references appear;
(i) any reference to this Framework Agreement includes Framework Schedule 1 (Definitions) and the Framework Schedules; and
(j) the headings in this Framework Agreement are for ease of reference only and shall not affect the interpretation or construction of this Framework Agreement.
1.2.2 Subject to Clauses 1.2.3 and 1.2.4, in the event and to the extent only of a conflict between any of the provisions of this Framework Agreement, the conflict shall be resolved, in accordance with the following descending order of precedence:
(a) the Clauses and Framework Schedule 1 (Definitions);
(b) Framework Schedules 2 to 20 and 22 to 23 inclusive;
(c) Framework Schedule 21 (Tender).
(a) any refinement to the Template Order Form and Template Call Off Terms permitted for the purposes of a Call Off Contract under Clause 4 and Framework Schedule 5 (Call Off Procedure) shall prevail over Framework Schedule 4 (Template Order Form and Template Call Off Terms); and
(b) subject to Clause 1.2.4, the Call Off Contract shall prevail over Framework Schedule 21 (Tender).
2. DUE DILIGENCE
2.1 The Supplier acknowledges that:
2.1.1 the Authority has delivered or made available to the Supplier all of the information and documents that the Supplier considers necessary or relevant for the performance or its obligations under this Framework Agreement;
2.1.2 it has made its own enquiries to satisfy itself as to the accuracy of the Due Diligence Information;
2.1.3 it has raised all relevant due diligence questions with the Authority before the Framework Commencement Date, has undertaken all necessary due diligence and has entered into this Call Off Contract in reliance on its own due diligence alone;
2.1.4 it shall not be excused from the performance of any of its obligations under this Framework Agreement on the grounds of, nor shall the Supplier by entitled to recover any additional costs or charges, arising as a result of any:
(a) misrepresentation of the requirements of the Supplier in the Invitation to Tender or elsewhere;
(b) failure by the Supplier to satisfy itself as to the accuracy and/or adequacy of the Due Diligence Information; and/or
(c) failure by the Supplier to undertake its own due diligence.
3. SUPPLIER'S APPOINTMENT
3.1 The Authority hereby appoints the Supplier as a potential provider of the Goods and/or Services and the Supplier shall be eligible to be considered for the award of Call Off Contracts by CSL during the Framework Period.
3.2 In consideration of the Supplier agreeing to enter into this Framework Agreement and to perform its obligations under it the Authority agrees to pay and the Supplier agrees to accept on the signing of this Framework Agreement the sum of one pound (£1.00) sterling (receipt of which is hereby acknowledged by the Supplier).
4. SCOPE OF FRAMEWORK AGREEMENT
4.1 Without prejudice to Clause 45 (Third Party Rights), this Framework Agreement governs the relationship between the Authority and the Supplier in respect of the provision of the Goods and/or Services by the Supplier.
4.2 The Supplier acknowledges and agrees that:
4.2.1 there is no obligation whatsoever on CSL to invite or select the Supplier to provide any Goods and/or Services and/or to purchase any Goods and/or Services under this Framework Agreement and
4.2.2 in entering into this Framework Agreement no form of exclusivity has been conferred on the Supplier nor volume or value guarantee granted by CSL in relation to the provision of the Goods and/or Services by the Supplier and that the CSL are at all times entitled to enter into other contracts and agreements with other suppliers for the provision of any or all goods and/or services which are the same as or similar to the Goods and/or Services.
5. CALL OFF PROCEDURE
5.1 If the Authority or CSL decides to source any of the Goods and/or Services through this Framework Agreement, then it shall be entitled at any time in its absolute and sole discretion during the Framework Period to award Call Off Contracts for the Goods and/or Services from the Supplier by following Framework Schedule 5 (Call Off Procedure).
5.2 The Supplier shall comply with the relevant provisions in Framework Schedule 5 (Call Off Procedure).
6. ASSISTANCE IN RELATED PROCUREMENTS
6.1.1 carry out appropriate due diligence with respect to the provision of the New Goods and/or Services;
6.1.2 effect a smooth transfer and/or inter-operation (as the case may be) between the Legacy Goods and/or Services and the New Goods and/or Services;
6.1.3 carry out a fair Further Competition Procedure for the New Goods and/or Services; and
6.1.4 make a proper assessment as to the risk related to the New Goods and/or Services.
6.2 When performing its obligations in Clause 6.1 the Supplier shall act consistently, applying principles of equal treatment and non-discrimination, with regard to requests for assistance from and dealings with each Relevant Supplier.
7. REPRESENTATIONS AND WARRANTIES
7.1 Each Party represents and warrants that:
7.1.1 it has full capacity and authority to enter into and to perform this Framework Agreement;
7.1.2 this Framework Agreement is executed by its duly authorised representative;
7.1.3 there are no actions, suits or proceedings or regulatory investigations before any court or administrative body or arbitration tribunal pending or, to its knowledge, threatened against it (or, in the case of the Supplier, any of its Affiliates) that might affect its ability to perform its obligations under this Framework Agreement; and
7.1.4 its obligations under this Framework Agreement constitute its legal, valid and binding obligations, enforceable in accordance with their respective terms subject to applicable (as the case may be for each Party) bankruptcy, reorganisation, insolvency, moratorium or similar Laws affecting creditors’ rights generally and subject, as to enforceability, to equitable principles of general application (regardless of whether enforcement is sought in a proceeding in equity or law).
7.2 The Supplier represents and warrants that:
7.2.1 it is validly incorporated, organised and subsisting in accordance with the Laws of its place of incorporation;
7.2.2 it has obtained and will maintain all licences, authorisations, permits, necessary consents (including, where its procedures so require, the consent of its Parent Company) and regulatory approvals to enter into and perform its obligations under this Framework Agreement;
7.2.3 it has not committed or agreed to commit a Prohibited Act and has no knowledge that an agreement has been reached involving the committal by it or any of its Affiliates of a Prohibited Act, save where details of any such arrangement have been disclosed in writing to the Authority before the Framework Commencement Date;
7.2.4 its execution, delivery and performance of its obligations under this Framework Agreement does not and will not constitute a breach of any Law or obligation applicable to it and does not and will not cause or result in a breach of any agreement by which it is bound;
7.2.5 as at the Framework Commencement Date, all written statements and representations in any written submissions made by the Supplier as part of the procurement process, its Tender, and any other documents submitted remain true and accurate except to the extent that such statements and representations have been superseded or varied by this Framework Agreement;
7.2.7 it has and shall continue to have all necessary Intellectual Property Rights including in and to any materials made available by the Supplier (and/or any Sub-Contractor) to the Authority which are necessary for the performance of the Supplier’s obligations under this Framework Agreement;
7.2.8 it shall take all steps, in accordance with Good Industry Practice, to prevent the introduction, creation or propagation of any disruptive elements (including any virus, worms and/or Trojans, spyware or other malware) into systems, data, software or the Authority’s Confidential Information (held in electronic form) owned by or under the control of, or used by, the Authority and/or Other Contracting Authorities.
7.2.9 it is not subject to any contractual obligation, compliance with which is likely to have a material adverse effect on its ability to perform its obligations under this Framework Agreement;
7.2.10 it is not affected by an Insolvency Event and no proceedings or other steps have been taken and not discharged (nor, to the best of its knowledge, have been or are threatened) for the winding up of the Supplier or for its dissolution or for the appointment of a receiver, administrative receiver, liquidator, manager, administrator or similar officer in relation to any of the Supplier’s assets or revenue;
7.2.11 for the duration of this Framework Agreement and any Call Off Contracts and for a period of twelve (12) Months after the termination or expiry of this Framework Agreement or, if later, any Call Off Contracts, the Supplier shall not employ or offer employment to any staff of the Authority or the staff of any Contracting Authority who has been associated with the procurement and/or provision of the Goods and/or Services without Approval or the prior written
11
consent of the relevant Contracting Authority which shall not be unreasonably withheld;
7.2.12 in performing its obligations under this Framework Agreement and any Call Off Contract, the Supplier shall not (to the extent possible in the circumstances) discriminate between Contracting Authorities on the basis of their respective sizes;
7.2.13 it is registered on the Register of Apprenticeship Training Providers; and
7.2.14 it will comply with the Funding Rules.
7.3 Each of the representations and warranties set out in Clauses 7.1 and 7.2 shall be construed as a separate representation and warranty and shall not be limited or restricted by reference to, or inference from, the terms of any other representation, warranty or any undertaking in this Framework Agreement.
7.4 If at any time a Party becomes aware that a representation or warranty given by it under Clauses 7.1 and 7.2 has been breached, is untrue or is misleading, it shall immediately notify the other Party of the relevant occurrence in sufficient detail to enable the other Party to make an accurate assessment of the situation.
7.5 For the avoidance of doubt, the fact that any provision within this Framework Agreement is expressed as a warranty shall not preclude any right of termination the Authority may have in respect of the breach of that provision by the Supplier which constitutes a material Default of this Framework Agreement.
7.6 Each time that a Call Off Contract is entered into, the warranties and representations in Clauses
7.1 and 7.2 shall be deemed to be repeated by the Supplier with reference to the circumstances existing at the time.
8. GUARANTEE
8.1.1 an executed Framework Guarantee from a Framework Guarantor; and
8.1.2 a certified copy extract of the board minutes and/or resolution of the Framework Guarantor approving the execution of the Framework Guarantee.
8.2.1 an executed Call Off Guarantee from a Call Off Guarantor; and
8.2.2 a certified copy extract of the board minutes and/or resolution of the Call Off Guarantor approving the execution of the Call Off Guarantee.
9. CYBER ESSENTIALS SCHEME CONDITION
12
9.4 In the event that the Supplier fails to comply with Clauses 9.2 or 9.3 (as applicable), the Authority reserves the right to terminate this Framework Agreement for material Default.
B. DURATION OF FRAMEWORK AGREEMENT
10. FRAMEWORK PERIOD
10.1 This Framework Agreement shall take effect on the Framework Commencement Date and shall expire, unless it is terminated earlier in accordance with the terms of this Framework Agreement or otherwise by operation of Law, either
10.1.1 at the end of the Initial Framework Period; or
10.1.2 where the Authority elects to extend the Initial Framework Period in accordance with Clause 10.2 below, at the end of the Extension Framework Period.
C. FRAMEWORK AGREEMENT PERFORMANCE
11. FRAMEWORK AGREEMENT PERFORMANCE
11.1 The Supplier shall perform its obligations under this Framework Agreement in accordance with:
11.1.1 the requirements of this Framework Agreement, including Framework Schedule 8 (Framework Management);
11.1.2 the terms and conditions of the respective Call Off Contracts;
13
11.1.3 Good Industry Practice;
11.1.4 all applicable Standards; and
11.1.5 in compliance with all applicable Law.
11.2 The Supplier shall bring to the attention of the Authority any conflict between any of the requirements of Clause 11.1 and shall comply with the Authority's decision on the resolution of any such conflict.
12. KEY PERFORMANCE INDICATORS
12.1 The Supplier shall at all times during the Framework Period comply with the Key Performance Indicators and achieve the KPI Targets set out in Part B of Framework Schedule 2 (Goods and/or Services and Key Performance Indicators).
13. STANDARDS
13.1 The Supplier shall comply with the Standards at all times during the performance by the Supplier of the Framework Agreement and any Call Off Contract, including any Standards set out in Part A of Framework Schedule 2 (Goods and/or Services and Key Performance Indicators).
13.2 Throughout the Framework Period, the Parties shall notify each other of any new or emergent standards which could affect the Supplier’s provision, or the receipt by CSL under a Call Off Contract, of the Goods and/or Services. The adoption of any such new or emergent standard, or changes to existing Standards, shall be agreed in accordance with the Variation Procedure.
13.3 Where a new or emergent standard is to be developed or introduced by the Authority, the Supplier shall be responsible for ensuring that the potential impact on the Supplier’s provision, or CSL’s receipt under a Call Off Contract, of the Goods and/or Services is explained to the Authority and CSL (within a reasonable timeframe), prior to the implementation of the new or emergent Standard.
13.4 Where Standards referenced conflict with each other or with best professional or industry practice adopted after the Framework Commencement Date, then the later Standard or best practice shall be adopted by the Supplier. Any such alteration to any Standard(s) shall require Approval and shall be implemented within an agreed timescale.
13.5 Where a standard, policy or document is referred to in Framework Schedule 2 (Goods and/or Services and Key Performance Indicators) by reference to a hyperlink, then if the hyperlink is changed or no longer provides access to the relevant standard, policy or document, the Supplier shall notify the Authority and the Parties shall agree the impact of such change.
14. NOT USED
15. CONTINUOUS IMPROVEMENT
15.1 The Supplier shall at all times during the Framework Period comply with its obligations to continually improve the Goods and/or Services and the manner in which it provides the Goods and/or Services as set out in Framework Schedule 12 (Continuous Improvement and Benchmarking).
16. CALL OFF PERFORMANCE UNDER FRAMEWORK AGREEMENT
16.1 The Supplier shall perform all its obligations under all Call Off Contracts:
16.1.1 in accordance with the requirements of this Framework Agreement;
16.1.2 in accordance with the terms and conditions of the respective Call Off Contracts.
16.2 The Supplier shall draw any conflict in the application of any of the requirements of Clauses 16.1.1 and 16.1.2 to the attention of the Authority and shall comply with the Authority's decision on the resolution of any such conflict.
D. FRAMEWORK AGREEMENT GOVERNANCE
17. FRAMEWORK AGREEMENT MANAGEMENT
17.1 The Parties shall manage this Framework Agreement in accordance with Framework Schedule 8 (Framework Management).
18. RECORDS, AUDIT ACCESS AND OPEN BOOK DATA
18.1 The Supplier shall keep and maintain, until the later of:
18.1.1 seven (7) years after the date of termination or expiry of this Framework Agreement; or
18.1.2 seven (7) years after the date of termination or expiry of the last Call Off Contract to expire or terminate; or
18.1.3 such other date as may be agreed between the Parties,
full and accurate records and accounts of the operation of this Framework Agreement, including the Call Off Contracts entered into with Contracting Authorities, the Goods and/or Services provided pursuant to the Call Off Contracts, and the amounts paid by each Contracting Authority under the Call Off Contracts and those supporting tests and evidence that underpin the provision of the annual Self Audit Certificate and supporting Audit Report.
18.2 The Supplier shall keep the records and accounts referred to in Clause 18.1 in accordance with Good Industry Practice and Law.
18.3 The Supplier shall provide the Authority with a completed and signed annual Self Audit Certificate in respect of each Contract Year. Each Self Audit Certificate shall be completed and signed by an authorised senior member of the Supplier’s management team or by the Supplier’s external auditor and the signatory must be professionally qualified in a relevant audit or financial discipline.
18.4 Each Self Audit Certificate should be based on tests completed against a representative sample of 10% of transactions carried out during the period of being audited or 100 transactions (whichever is less) and should provide assurance that:
18.4.1 Orders are clearly identified as such in the order processing and invoicing systems and, where required, Orders are correctly reported in the MI Reports;
18.4.2 all related invoices are completely and accurately included in the MI Reports;
18.4.3 all Charges to CSL comply with any requirements under this Framework Agreement on maximum xxxx-ups, discounts, charge rates, fixed quotes (as applicable); and
18.5 Each Self Audit Certificate should be supported by an Audit Report that provides details of the methodology applied to complete the review, the sampling techniques applied, details of any issues identified and remedial action taken.
18.6 The Supplier shall afford any Auditor access to the records and accounts referred to in Clause 18.1 at the Supplier's premises and/or provide such records and accounts or copies of the same, as may be required and agreed with any of the Auditors from time to time, in order that the Auditor may carry out an inspection to assess compliance by the Supplier and/or its Sub-Contractors of any of the Supplier’s obligations under this Framework Agreement, including in order to:
18.6.1 verify the accuracy of the Charges and any other amounts payable by CSL under a Call Off Contract (including proposed or actual variations to them in accordance with this Framework Agreement);
18.6.2 verify the costs of the Supplier (including the costs of all Sub-Contractors and any third party suppliers) in connection with the provision of the Services;
18.6.3 verify the Open Book Data;
18.6.4 verify the Supplier’s and each Sub-Contractor’s compliance with the applicable Law;
18.6.5 identify or investigate actual or suspected Prohibited Acts, impropriety or accounting mistakes or any breach or threatened breach of security and in these circumstances the Authority shall have no obligation to inform the Supplier of the purpose or objective of its investigations;
18.6.6 identify or investigate any circumstances which may impact upon the financial stability of the Supplier ,the Framework Guarantor and/or the Call Off Guarantor and/or any Sub-Contractors or their ability to perform the Services;
18.6.7 obtain such information as is necessary to fulfil the Authority’s obligations to supply information for parliamentary, ministerial, judicial or administrative purposes including the supply of information to the Comptroller and Auditor General;
18.6.8 review any books of account and the internal contract management accounts kept by the Supplier in connection with this Framework Agreement;
18.6.9 carry out the Authority’s internal and statutory audits and to prepare, examine and/or certify the Authority's annual and interim reports and accounts;
18.6.10 enable the National Audit Office to carry out an examination pursuant to Section 6(1) of the National Audit Xxx 0000 of the economy, efficiency and effectiveness with which the Authority has used its resources;
18.6.11 verify the accuracy and completeness of any Management Information delivered or required by this Framework Agreement;
18.6.12 review any MI Reports and/or other records relating to the Supplier’s performance of the Services and to verify that these reflect the Supplier’s own internal reports and records;
18.6.13 review the integrity, confidentiality and security of the Authority Personal Data; and/or
18.6.14 receive from the Supplier on request summaries of all central government public sector expenditure placed with the Supplier including through routes outside the Framework in order to verify that the Supplier’s practice is consistent with the Government’s transparency agenda which requires all public sector bodies to publish details of expenditure on common goods and services.
18.7 The Authority shall use reasonable endeavours to ensure that the conduct of each Audit does not unreasonably disrupt the Supplier or delay the provision of the Goods and/or Services pursuant to the Call Off Contracts, save insofar as the Supplier accepts and acknowledges that control over the conduct of Audits carried out by the Auditors is outside of the control of the Authority.
18.8 Subject to the Authority's obligations of confidentiality, the Supplier shall on demand provide the Auditors with all reasonable co-operation and assistance in relation to each Audit, including by providing:
18.8.1 all information within the scope of the Audit requested by the Auditor;
18.8.2 reasonable access to any sites controlled by the Supplier and to equipment used in the provision of the Goods and/or Services; and
18.8.3 access to the Supplier Personnel.
18.10 If an Audit reveals that:
18.10.1 that the Supplier has underpaid an amount equal to or greater than five per cent (5%) of the Management Charge due during any Contract Year of this Framework Agreement and any Call Off Contract; and/or
18.10.2 a material Default has been committed by the Supplier;
then the Authority shall be entitled to terminate this Framework Agreement.
19. CHANGE
19.1 Variation Procedure
19.1.1 Subject to the provisions of this Clause 19 and, in respect of any change to the Framework Prices, subject to the provisions of Framework Schedule 3 (Framework Prices and Charging Structure), the Authority may, at its own instance or where in its sole and absolute discretion it decides to having been requested to do so by the Supplier, request a variation to this Framework Agreement provided always that such variation does not amount to a material change of this Framework Agreement within the meaning of the Regulations and the Law. Such a change once implemented is hereinafter called a "Variation".
19.1.3 The Supplier shall respond to the Authority’s request pursuant to Clause 19.1.2 within the time limits specified in the Variation Form. Such time limits shall be reasonable and ultimately at the discretion of the Authority having regard to the nature of the proposed Variation.
19.1.4 In the event that:
(a) the Supplier is unable to agree to or provide the Variation; and/or
(b) the Parties are unable to agree a change to the Framework Prices that may be included in a request for a Variation or response to it as a consequence thereof,
the Authority may:
agree to continue to perform its obligations under this Framework Agreement without the Variation; or
terminate this Framework Agreement with immediate effect.
19.2 Legislative Change
19.2.1 The Supplier shall neither be relieved of its obligations under this Framework Agreement nor be entitled to an increase the Framework Prices as the result of:
(a) a General Change in Law; or
19.2.2 If a Specific Change in Law occurs or will occur during the Framework Period (other than as referred to in Clause 19.2.1(b)), the Supplier shall:
18
(a) notify the Authority as soon as reasonably practicable of the likely effects of that change including whether any Variation is required to the Goods and/or Services, the Framework Prices or this Framework Agreement; and
(b) provide the Authority with evidence:
that the Supplier has minimised any increase in costs or maximised any reduction in costs, including in respect of the costs of its Sub- Contractors;
as to how the Specific Change in Law has affected the cost of providing the Goods and/or Services; and
demonstrating that any expenditure that has been avoided, for example which would have been required under the provisions of Framework Schedule 12 (Continuous Improvement and Benchmarking), has been taken into account in amending the Framework Prices.
19.2.3 Any change in the Framework Prices or relief from the Supplier's obligations resulting from a Specific Change in Law (other than as referred to in Clause 19.2.1(b) shall be implemented in accordance with Clause 19.1(Variation Procedure).
E. MANAGEMENT CHARGE, TAXATION AND VALUE FOR MONEY PROVISIONS
20. MANAGEMENT CHARGE
20.2 The Supplier agrees to pay the Management Charge where notice under Clause 20.1 is given and the following provisions shall apply:
(a) in accordance with paragraphs 5.4 to 5.7 of Framework Schedule 9 (Management Information) to take into account of any Admin Fee(s) that may have accrued in respect of the late provision of Management Information; and
(b) in accordance with paragraph 6 of Framework Schedule 9 (Management Information)to take into account of any underpayment or overpayment as a result of the application of the Default Management Charge.
20.2.2 Unless otherwise agreed in writing, the Supplier shall pay by BACS (or by such other means as the Authority may from time to time reasonably require)) the
amount stated in any invoice submitted under Clause 20.2.1 to such account as shall be stated in the invoice (or otherwise notified from time to time by the Authority to the Supplier) within thirty (30) calendar days of the date of issue of the invoice.
20.2.3 The Management Charge shall apply to the full Charges as specified in each and every Call Off Contract and shall not be varied as a result of any discount or any reduction in the Charges due to any deductions made under any Call Off Contract.
20.2.4 The Supplier shall not pass through or recharge to, or otherwise recover from CSL the cost of the Management Charge in addition to the Charges. The Management Charge shall be exclusive of VAT. In addition to the Management Charge, the Supplier shall pay the VAT on the Management Charge at the rate and in the manner prescribed by Law from time to time.
20.2.5 Interest shall be payable on any late payments of the Management Charge under this Framework Agreement in accordance with the Late Payment of Commercial Debts (Interest) Xxx 0000.
21. PROMOTING TAX COMPLIANCE
21.1 This Clause 21 shall apply if the Charges payable under this Framework Agreement are or are likely to exceed five (5) million pounds during the Framework Period.
21.2 If, at any point during the Framework Period, an Occasion of Tax Non-Compliance occurs, the Supplier shall:
21.2.1 notify the Authority in writing of such fact within five (5) Working Days of its occurrence; and
21.2.2 promptly provide to the Authority:
(a) details of the steps that the Supplier is taking to address the Occasion of Tax Non-Compliance, together with any mitigating factors that it considers relevant; and
(b) such other information in relation to the Occasion of Tax Non-Compliance as the Authority may reasonably require.
21.3 In the event that the Supplier fails to comply with this Clause 21 and/or does not provide details of proposed mitigating factors which in the reasonable opinion of the Authority are acceptable, then the Authority reserves the right to terminate this Framework Agreement for material Default.
22. BENCHMARKING
22.1 The Parties shall comply with the provisions of Framework Schedule 12 (Continuous Improvement and Benchmarking) in relation to the benchmarking of any or all of the Goods and/or Services.
23. FINANCIAL DISTRESS
23.1 The Parties shall comply with the provisions of Framework Schedule 16 (Financial Distress) in relation to the assessment of the financial standing of the Supplier and the consequences of a change to that financial standing.
F. SUPPLIER PERSONNEL AND SUPPLY CHAIN MATTERS
24. NOT USED
25. SUPPLY CHAIN RIGHTS AND PROTECTION
25.1 Appointment of Key Sub-Contractors
25.1.1 The Authority has consented to the engagement of the Key Sub-Contractors listed in Framework Schedule 7 (Key Sub-Contractors).
25.1.2 Where during the Framework Period the Supplier wishes to enter into a new Key Sub-Contract or replace a Key Sub-Contractor, it must obtain the prior written consent of the Authority and CSL with whom it has entered into a Call Off Contract and shall at the time of requesting such consent, provide the Authority with the information detailed in Clause 25.1.3. The decision of the Authority to consent or not will not be unreasonably withheld or delayed. The Authority and/or CSL may reasonably withhold their consent to the appointment of a Key Sub-Contractor if either of them considers that:
(a) the appointment of a proposed Key Sub-Contractor may prejudice the provision of the Goods and/or Services or may be contrary to its interests;
(b) the proposed Key Sub-Contractor is unreliable and/or has not provided reliable goods and or reasonable services to its other customers; and/or
(c) the proposed Key Sub-Contractor employs unfit persons.
(a) the proposed Key Sub-Contractor’s name, registered office and company registration number;
(b) the scope/description of any Goods and/or Services to be provided by the proposed Key Sub-Contractor;
(c) where the proposed Key Sub-Contractor is an Affiliate of the Supplier, evidence that demonstrates to the reasonable satisfaction of the Authority that the proposed Key Sub-Contract has been agreed on "arm’s-length" terms;
(d) Key Sub-Contract price expressed as a percentage of the total projected Framework Price over the Framework Period; and
(e) Credit Rating Threshold (as defined in Framework Schedule 16 (Financial Distress)) of the Key Sub-Contractor.
25.1.4 If requested by the Authority and/or CSL with whom the Supplier has entered into a Call Off Contract, within ten (10) Working Days of receipt of the
21
information provided by the Supplier pursuant to Clause 25.1.3, the Supplier shall also provide:
(a) a copy of the proposed Key Sub-Contract; and
(b) any further information reasonably requested by the Authority and/or the Contracting Authority with whom the Supplier has entered into a Call Off Contract.
25.1.5 The Supplier shall ensure that each new or replacement Key Sub-Contract shall include:
(a) provisions which will enable the Supplier to discharge its obligations under this Framework Agreement;
(b) a right under CRTPA for the Authority to enforce any provisions under the Key Sub-Contract which confer a benefit upon the Authority;
(c) a provision enabling the Authority to enforce the Key Sub-Contract as if it were the Supplier;
(d) a provision enabling the Supplier to assign, novate or otherwise transfer any of its rights and/or obligations under the Key Sub-Contract to the Authority;
(e) obligations no less onerous on the Key Sub-Contractor than those imposed on the Supplier under this Framework Agreement in respect of:
the data protection requirements set out in Clause 27.4 (Protection of Personal Data);
the FOIA requirements set out in Clause 27.3 (Transparency and Freedom of Information);
the obligation not to embarrass the Authority or otherwise bring the Authority into disrepute set out in Clause 28 (Publicity and Branding);
the keeping of records in respect of the goods and/or services being provided under the Key Sub-Contract, including the maintenance of Open Book Data; and
the conduct of audits set out in Clause 18 (Records, Audit Access and Open Book Data);
(f) provisions enabling the Supplier to terminate the Key Sub-Contract on notice on terms no more onerous on the Supplier than those imposed on the Authority under Clauses 33 (Authority Termination Rights) and 35 (Consequences of Expiry or Termination) of this Framework Agreement;
(g) a provision restricting the ability of the Key Sub-Contractor to Sub- Contract all or any part of the provision of the Goods and/or Services provided to the Supplier under the Key Sub-Contract without first seeking the written consent of the Authority;
25.2 Supply Chain Protection
25.2.1 The Supplier shall ensure that all Sub-Contracts contain a provision:
(a) requiring the Supplier to pay any undisputed sums which are due from the Supplier to the Sub-Contractor within a specified period not exceeding thirty (30) days from the receipt of a valid invoice;
(b) requiring that any invoices submitted by a Sub-Contractor shall be considered and verified by the Supplier in a timely fashion and that undue delay in doing so shall not be sufficient justification for failing to regard an invoice as valid and undisputed;
(c) conferring a right to the Authority and CSL with whom the Supplier has entered a Call Off Contract to publish the Supplier’s compliance with its obligation to pay undisputed invoices within the specified payment period.
(d) giving the Supplier a right to terminate the Sub-Contract if the Sub- Contractor fails to comply in the performance of the Sub-Contract with legal obligations in the fields of environmental, social or labour law; and
25.2.2 The Supplier shall ensure that all Sub-Contracts with Sub-Contractors who Process Cyber Essentials Data contain provisions no less onerous on the Sub- Contractors than those imposed on the Supplier under this Framework Agreement in respect of the Cyber Essentials Scheme under Clause 9.
25.2.3 The Supplier shall pay any undisputed sums which are due from the Supplier to a Sub-Contractor within thirty (30) days from the receipt of a valid invoice.
25.2.4 Any invoices submitted by a Sub-Contractor to the Supplier shall be considered and verified by the Supplier in a timely fashion. Undue delay in doing so shall not be sufficient justification for the Supplier failing to regard an invoice as valid and undisputed.
25.2.5 Notwithstanding any provision of Clauses 27.2 (Confidentiality) and 28 (Publicity and Branding) if the Supplier notifies the Authority that the Supplier has failed to pay an undisputed Sub-Contractor’s invoice within thirty (30) days of receipt, or the Authority otherwise discovers the same, the Authority shall be entitled to publish the details of the late payment or non-payment (including on government websites and in the press).
25.3 Termination of Sub-Contracts
25.3.1 The Authority may require the Supplier to terminate:
(a) a Sub-Contract where:
Termination Rights) except Clause 33.7 (Termination Without Cause); and/or
the relevant Sub-Contractor or its Affiliates embarrassed the Authority or otherwise brought the Authority into disrepute by engaging in any act or omission which is reasonably likely to diminish the trust that the public places in the Authority, regardless of whether or not such act or omission is related to the Sub-Contractor’s obligations in relation to the Goods and/or Services or otherwise; and/or
(b) a Key Sub-Contract where there is a Change of Control of the relevant Key Sub-contractor, unless:
the Authority has given its prior written consent to the particular Change of Control, which subsequently takes place as proposed; or
the Authority has not served its notice of objection within six (6) months of the later of the date the Change of Control took place or the date on which the Authority was given notice of the Change of Control.
25.3.2 Where the Authority requires the Supplier to terminate a Sub-Contract or a Key Sub-Contract pursuant to Clause 25.3.1 above, the Supplier shall remain responsible for fulfilling all its obligations under this Framework Agreement including the provision of the Goods and/or Services.
25.4 Competitive Terms
(a) require the Supplier to replace its existing commercial terms with its Sub- Contractor with the more favourable commercial terms obtained by the Authority in respect of the relevant item; or
(b) subject to Clause 25.3 (Termination of Sub-Contracts), enter into a direct agreement with that Sub-Contractor or third party in respect of the relevant item.
25.4.2 If the Authority exercises either option pursuant to Clause 25.4.1, then the Framework Prices shall be reduced by an amount that is agreed in accordance with Clause 19.1 (Variation Procedure).
25.4.3 The Authority's right to enter into a direct agreement for the supply of the relevant items is subject to:
(a) the Authority shall make the relevant item available to the Supplier where this is necessary for the Supplier to provide the Goods and/or Services; and
(b) any reduction in the Framework Prices taking into account any unavoidable costs payable by the Supplier in respect of the substituted item, including in respect of any licence fees or early termination charges.
25.5 Retention of Legal Obligations
25.5.1 Notwithstanding the Supplier's right to sub-contract pursuant to this Clause 25, the Supplier shall remain responsible for all acts and omissions of its Sub- Contractors and the acts and omissions of those employed or engaged by the Sub-Contractors as if they were its own.
G. INTELLECTUAL PROPERTY AND INFORMATION
26. INTELLECTUAL PROPERTY RIGHTS
26.1 Allocation of title to IPR
26.1.2 Where either Party acquires, by operation of Law, title to Intellectual Property Rights that is inconsistent with the allocation of title set out in Clause 26.1.1, it shall assign in writing such Intellectual Property Rights as it has acquired to the other Party on the request of the other Party (whenever made).
26.1.3 Subject to Clause 26.1.4, neither Party shall have any right to use any of the other Party's names, logos or trademarks on any of its products or services without the other Party's prior written consent.
26.2 IPR Indemnity
26.2.1 The Supplier shall ensure and procure that the availability, provision and use of the Goods and/or Services and the performance of the Supplier's responsibilities and obligations hereunder shall not infringe any Intellectual Property Rights of any third party.
26.2.3 If an IPR Claim is made, or the Supplier anticipates that an IPR Claim might be made, the Supplier may, at its own expense and sole option, either:
(b) replace or modify the relevant item with non-infringing substitutes provided that:
25
the performance and functionality of the replaced or modified item is at least equivalent to the performance and functionality of the original item;
the replaced or modified item does not have an adverse effect on any other Goods and/or Services;
there is no additional cost to the Authority; and
the terms and conditions of this Framework Agreement shall apply to the replaced or modified Goods and/or Services.
26.2.4 If the Supplier elects to procure a licence in accordance with Clause 26.2.3(a) or to modify or replace an item pursuant to Clause 26.2.3(b), but this has not avoided or resolved the IPR Claim, then:
(a) the Authority may terminate this Framework Agreement by written notice with immediate effect; and
(b) without prejudice to the indemnity set out in Clause 26.2.2, the Supplier shall be liable for all reasonable and unavoidable costs of the substitute items and/or services including the additional costs of procuring, implementing and maintaining the substitute items.
27. PROVISION AND PROTECTION OF INFORMATION
27.1 Provision of Management Information
27.1.1 The Supplier shall, at no charge to the Authority, submit to the Authority complete and accurate Management Information in accordance with the provisions of Framework Schedule 9 (Management Information).
27.1.2 The Supplier grants the Authority a non-exclusive, transferable, perpetual, irrevocable, royalty free licence to:
(a) use and to share with any Other Contracting Authority and Relevant Person; and/or
(b) publish (subject to any information that is exempt from disclosure in accordance with the provisions of FOIA being redacted),
any Management Information supplied to the Authority for the Authority's normal operational activities including but not limited to administering this Framework Agreement and/or all Call Off Contracts, monitoring public sector expenditure, identifying savings or potential savings and planning future procurement activity.
27.1.4 The Authority may consult with the Supplier to help with its decision regarding any exemptions under Clause 27.1.3 but, for the purpose of this Framework Agreement, the Authority shall have the final decision in its absolute and sole discretion.
27.2 Confidentiality
27.2.1 For the purposes of this Clause 27.2, the term “Disclosing Party” shall mean a Party which discloses or makes available directly or indirectly its Confidential Information and “Recipient” shall mean the Party which receives or obtains directly or indirectly Confidential Information.
27.2.2 Except to the extent set out in this Clause 27.2 or where disclosure is expressly permitted elsewhere in this Framework Agreement, the Recipient shall:
(a) treat the Disclosing Party's Confidential Information as confidential and keep it in secure custody (which is appropriate depending upon the form in which such materials are stored and the nature of the Confidential Information contained in those materials); and
(b) not disclose the Disclosing Party's Confidential Information to any other person except as expressly set out in this Framework Agreement or without obtaining the Disclosing Party's prior written consent;
(c) not use or exploit the Disclosing Party’s Confidential Information in any way except for the purposes anticipated under this Framework Agreement; and
(d) immediately notify the Disclosing Party if it suspects or becomes aware of any unauthorised access, copying, use or disclosure in any form of any of the Disclosing Party’s Confidential Information.
(a) the Recipient is required to disclose the Confidential Information by Law, provided that Clause 27.3 (Transparency and Freedom of Information) shall apply to disclosures required under the FOIA or the EIRs;
(b) the need for such disclosure arises out of or in connection with:
any legal challenge or potential legal challenge against the Authority arising out of or in connection with this Framework Agreement;
the examination and certification of the Authority's accounts (provided that the disclosure is made on a confidential basis) or for any examination pursuant to Section 6(1) of the National Audit Xxx 0000 of the economy, efficiency and effectiveness with which the Authority is making use of its resources; or
the conduct of a Central Government Body review in respect of this Framework Agreement; or
(c) the Recipient has reasonable grounds to believe that the Disclosing Party is involved in activity that may constitute a criminal offence under the Xxxxxxx Xxx 0000 and the disclosure is being made to the Serious Fraud Office;
(d) such information was in the possession of the Disclosing Party without obligation of confidentiality prior to its disclosure by the information owner;
(e) such information was obtained from a third party without obligation of confidentiality;
(f) such information was already in the public domain at the time of disclosure otherwise than by a breach of this Framework Agreement or breach of a duty of confidentiality; and
(g) the information is independently developed without access to the Disclosing Party's Confidential Information.
27.2.4 If the Recipient is required by Law to make a disclosure of Confidential Information, the Recipient shall as soon as reasonably practicable and to the extent permitted by Law notify the Disclosing Party of the full circumstances of the required disclosure including the relevant Law and/or regulatory body requiring such disclosure and the Confidential Information to which such disclosure would apply.
27.2.5 Subject to Clauses 27.2.2 and 27.2.3, the Supplier may only disclose the Confidential Information of the Authority on a confidential basis to:
(a) Supplier Personnel who are directly involved in the provision of the Goods and/or Services and need to know the Confidential Information to enable the performance of the Supplier’s obligations under this Framework Agreement; and
(b) its professional advisers for the purposes of obtaining advice in relation to this Framework Agreement.
27.2.6 Where the Supplier discloses the Confidential Information of the Authority pursuant to Clause 27.2.5, it shall remain responsible at all times for compliance with the confidentiality obligations set out in this Framework Agreement by the persons to whom disclosure has been made.
27.2.7 The Authority may disclose the Confidential Information of the Supplier:
(b) to the British Parliament and any committees of the British Parliament or if required by any British Parliamentary reporting requirement;
(d) on a confidential basis to a professional adviser, consultant, supplier or other person engaged by any of the entities described in Clause 27.2.7(a) (including any benchmarking organisation) for any purpose relating to or connected with this Framework Agreement;
(e) on a confidential basis for the purpose of the exercise of its rights under this Framework Agreement; or
(f) to a proposed transferee, assignee or novatee of, or successor in title to the Authority,
27.2.8 For the avoidance of doubt, the Confidential Information that the Authority may disclose under Clause 27.2.7 shall include information relating to Call Off Contracts, including service levels, pricing information (which includes information on prices tendered in a Further Competition Procedure, even where such a Further Competition Procedure does not result in the award of a Call Off Contract) and the terms of any Call Off Contract may be shared with any Central Government Body or Other Contracting Authority from time to time.
27.2.9 Nothing in this Clause 27.2 shall prevent a Recipient from using any techniques, ideas or Know-How which the Recipient has gained during the performance of this Framework Agreement in the course of its normal business to the extent that this use does not result in a disclosure of the Disclosing Party’s Confidential Information or an infringement of Intellectual Property Rights.
27.2.10 In the event that the Supplier fails to comply with Clauses 27.2.2 to 27.2.5, the Authority reserves the right to terminate this Framework Agreement for material Default.
27.3 Transparency and Freedom of Information
27.3.1 The Parties acknowledge that
(a) the Transparency Reports; and
(b) the content of this Framework Agreement, including any changes to this Framework Agreement agreed from time to time, except for –
(i) any information which is exempt from disclosure in accordance with the provisions of the FOIA, which shall be determined by the Authority; and
(ii) Commercially Sensitive Information;
(together the “Transparency Information”) are not Confidential Information.
27.3.2 Notwithstanding any other provision of this Framework Agreement, the Supplier hereby gives its consent for the Authority to publish to the general public the Transparency Information in its entirety (but with any information which is exempt from disclosure in accordance with the provisions of the FOIA redacted). The Authority shall, prior to publication, consult with the Supplier on the manner and format of publication and to inform its decision regarding any redactions but shall have the final decision in its absolute discretion.
27.3.3 The Supplier shall assist and co-operate with the Authority to enable the Authority to publish the Transparency Information, including the preparation of the Transparency Reports in accordance with Schedule 22 (Transparency Reports).
27.3.4 If the Authority believes that publication of any element of the Transparency Information would be contrary to the public interest, the Authority shall be entitled to exclude such information from publication. The Authority acknowledges that it would expect the public interest by default to be best served by publication of the Transparency Information in its entirety. Accordingly, the Authority acknowledges that it will only exclude Transparency Information from publication in exceptional circumstances and agrees that where it decides to exclude information from publication it will provide a clear explanation to the Supplier.
27.3.5 The Authority shall publish the Transparency Information in a format that assists the general public in understanding the relevance and completeness of the information being published to ensure the public obtain a fair view on how the Framework Agreement is being performed, having regard to the context of the wider commercial relationship with the Supplier.
27.3.6 The Supplier agrees that any Information it holds that is not included in the Transparency Reports but is reasonably relevant to or that arises from the provision of the Services shall be provided to the Authority on request unless the cost of doing so would exceed the appropriate limit prescribed under section 12 of the FOIA. The Authority may disclose such information under the FOIA and the EIRs and may (except for Commercially Sensitive Information, Confidential Information (subject to Clause 27.2.7(c)) and Open Book Data) publish such Information. The Supplier shall provide to the Authority within 5 working days (or such other period as the Authority may reasonably specify) any such Information requested by the Authority.
27.3.7 The Supplier acknowledges that the Authority is subject to the requirements of the FOIA and the EIRs. The Supplier shall:
(a) provide all necessary assistance and cooperation as reasonably requested by the Authority to enable the Authority to comply with its Information disclosure obligations under the FOIA and EIRs;
(b) transfer to the Authority all Requests for Information relating to this Framework Agreement that it receives as soon as practicable and in any event within two (2) Working Days of receipt;
(c) provide the Authority with a copy of all Information held on behalf of the Authority requested in the Request for Information which is in the Supplier’s possession or control in the form that the Authority requires within five (5) Working Days (or such other period as the Authority may reasonably specify) of the Authority's request for such Information; and
(d) not respond directly to a Request for Information addressed to the Authority unless authorised in writing to do so by the Authority.
27.3.8 The Supplier acknowledges that the Authority may be required under the FOIA and EIRs to disclose Information (including Commercially Sensitive Information) without consulting or obtaining consent from the Supplier. The Authority shall take reasonable steps to notify the Supplier of a Request for Information (in accordance with the Secretary of State’s Section 45 Code of Practice on the Discharge of the Functions of Public Authorities under Part 1 of the FOIA) to the extent that it is permissible and reasonably practical for it to do so but (notwithstanding any other provision in this Framework Agreement) for the purpose of this Framework Agreement, the Authority shall be responsible for determining in its absolute discretion whether any Commercially Sensitive Information and/or any other information is exempt from disclosure in accordance with the FOIA and EIRs.
27.4 Protection of Personal Data
27.4.1 Where any Personal Data are processed in connection with the exercise of the Parties’ rights and obligations under this Framework Agreement, the Parties acknowledge that the Authority is the Data Controller and that the Supplier is the Data Processor.
(a) Process the Personal Data only in accordance with instructions from the Authority to perform its obligations under this Framework Agreement;
(b) ensure that at all times it has in place appropriate technical and organisational measures to guard against unauthorised or unlawful Processing of the Personal Data and/or accidental loss, destruction, or damage to the Personal Data;
(c) not disclose or transfer the Personal Data to any third party or Supplier Personnel unless necessary for the provision of the Goods and/or Services and, for any disclosure or transfer of Personal Data to any third party, obtain the prior written consent of the Authority (save where such disclosure or transfer is specifically authorised under this Framework Agreement);
(d) take reasonable steps to ensure the reliability and integrity of any Supplier Personnel who have access to the Personal Data and ensure that the Supplier Personnel:
are aware of and comply with the Supplier’s duties under this Clause 27.4.2 and Clause 27.2 (Confidentiality);
are informed of the confidential nature of the Personal Data and do not publish, disclose or divulge any of the Personal Data to any third party unless directed in writing to do so by the Authority or as otherwise permitted by this Framework Agreement; and
have undergone adequate training in the use, care, protection and handling of personal data (as defined in the DPA);
(e) notify the Authority within five (5) Working Days if it receives:
31
from a Data Subject (or third party on their behalf) a Data Subject Access Request (or purported Data Subject Access Request), a request to rectify, block or erase any Personal Data or any other request, complaint or communication relating to the Authority's obligations under the DPA;
any communication from the Information Commissioner or any other regulatory authority in connection with Personal Data; or
a request from any third party for disclosure of Personal Data where compliance with such request is required or purported to be required by Law;
(f) provide the Authority with full cooperation and assistance (within the timescales reasonably required by the Authority) in relation to any complaint, communication or request made (as referred to at Clause 27.4.2(e), including by promptly providing:
the Authority with full details and copies of the complaint, communication or request;
where applicable, such assistance as is reasonably requested by the Authority to enable the Authority to comply with the Data Subject Access Request within the relevant timescales set out in the DPA; and
the Authority, on request by the Authority, with any Personal Data it holds in relation to a Data Subject; and
(g) if requested by the Authority, provide a written description of the measures that the Supplier has taken and technical and organisational security measures in place, for the purpose of compliance with its obligations pursuant to this Clause 27.4.2 and provide to the Authority copies of all documentation relevant to such compliance including, protocols, procedures, guidance, training and manuals.
27.4.3 The Supplier shall not Process or otherwise transfer any Personal Data in or to a Restricted Country. If, after the Framework Commencement Date, the Supplier or any Sub-Contractor wishes to Process and/or transfer any Personal Data in or to anywhere outside the European Economic Area, the following provisions shall apply:
(a) the Supplier shall propose a variation to the Authority which, if it is agreed by the Authority, shall be dealt with in accordance with Clause
19.1 (Variation Procedure) and Clauses 27.4.3(b) to 27.4.3(d);
the Personal Data which will be transferred to and/or Processed in or to any Restricted Countries;
the Restricted Countries to which the Personal Data will be transferred and/or Processed; and
any Sub-Contractors or other third parties who will be Processing and/or receiving Personal Data in Restricted Countries;
how the Supplier will ensure an adequate level of protection and adequate safeguards in respect of the Personal Data that will be Processed in and/or transferred to Restricted Countries so as to ensure the Authority’s compliance with the DPA;
(c) in providing and evaluating the Variation, the Parties shall ensure that they have regard to and comply with the Authority, Central Government Bodies and Information Commissioner Office policies, procedures, guidance and codes of practice on, and any approvals processes in connection with, the Processing in and/or transfers of Personal Data to any Restricted Countries; and
incorporating standard and/or model clauses (which are approved by the European Commission as offering adequate safeguards under the DPA) into this Framework Agreement or a separate data processing agreement between the Parties; and
procuring that any Sub-Contractor or other third party who will be Processing and/or receiving or accessing the Personal Data in any Restricted Countries either enters into:
a direct data processing agreement with the Authority on such terms as may be required by the Authority; or
a data processing agreement with the Supplier on terms which are equivalent to those agreed between the Authority and the Supplier relating to the relevant Personal Data transfer,
and the Supplier acknowledges that in each case, this may include the incorporation of model contract provisions (which are approved by the European Commission as offering adequate safeguards under the DPA) and technical and organisation measures which the Authority deems necessary for the purpose of protecting Personal Data.
27.4.4 The Supplier shall use its reasonable endeavours to assist the Authority to comply with any obligations under the DPA and shall not perform its obligations under this Framework Agreement in such a way as to cause the Authority to breach any of the Authority’s obligations under the DPA to the extent the Supplier is aware, or ought reasonably to have been aware, that the same would be a breach of such obligations.
28. PUBLICITY AND BRANDING
28.1 Subject to Clause 29 (Marketing), the Supplier shall not:
28.1.1 make any press announcements or publicise this Framework Agreement in any way; or
28.1.2 use the Authority's name or brand in any promotion or marketing or announcement of Orders,
without Approval (the decision of the Authority to Approve or not shall not be unreasonably withheld or delayed).
28.2 Each Party acknowledges to the other that nothing in this Framework Agreement either expressly or by implication constitutes an approval and/or endorsement of any products or services of the other Party (including the Goods and/or Services) and each Party agrees not to conduct itself in such a way as to imply or express any such approval and/or endorsement.
28.3 The Authority shall be entitled to publicise this Framework Agreement in accordance with any legal obligation upon the Authority, including any examination of this Framework Agreement by the National Audit Office pursuant to the National Audit Xxx 0000 or otherwise.
29. MARKETING
29.1 The Supplier shall undertake marketing of this Framework Agreement and the Goods and/or Services on behalf of the Authority to Other Contracting Authorities in accordance with the provisions of Framework Schedule 11 (Marketing).
29.2 The Supplier shall obtain the Authority's Approval prior to publishing any content in relation to this Framework Agreement using any media, including on any electronic medium, and the Supplier will ensure that such content is regularly maintained and updated. In the event that the Supplier fails to maintain or update the content, the Authority may give the Supplier notice to rectify the failure and if the failure is not rectified to the reasonable satisfaction of the Authority within one (1) Month of receipt of such notice, the Authority shall have the right to remove such content itself or require that the Supplier immediately arranges the removal of such content.
H. LIABILITY AND INSURANCE
30. LIABILITY
30.1 Neither Party excludes or limits its liability for:
30.1.1 death or personal injury caused by its negligence, or that of its employees, agents or Sub-Contractors (as applicable);
30.1.2 bribery or Fraud by it or its employees; or
30.1.3 any liability to the extent it cannot be excluded or limited by Law.
30.2 The Supplier does not exclude or limit its liability in respect of the indemnity in Clause 26.2 (IPR Indemnity) and in each case whether before or after the making of a demand pursuant to the indemnity therein.
30.3 Subject to Clauses 30.1 and 30.2, each Party's total aggregate liability in respect of all Losses incurred under or in connection with this Framework Agreement as a result of Defaults or Authority Cause (as the case may be) shall in no event exceed:
30.3.1 in relation to any Default or Authority Cause (as the case may be) occurring from the Framework Commencement Date to the end of the first Contract Year, one hundred thousand pounds (£100,000);
30.3.2 in relation to any Default or Authority Cause (as the case may be) occurring in each subsequent Contract Year following the end of the first Contract Year, that commences during the remainder of the Framework Period, the sum of one hundred thousand pounds (£100,000) in each such Contract Year; and
30.3.3 in relation to any Default or Authority Cause occurring in each Contract Year that commences after the end of the Framework Period, one hundred thousand pounds (£100,000) in each such Contract Year;
30.4 Subject to Clause 30.1, neither Party shall be liable to the other Party for any:
30.4.1 indirect, special or consequential Loss;
30.4.2 loss of profits, turnover, savings, business opportunities or damage to goodwill (in each case whether direct or indirect).
30.5 Subject to Clause 30.3, and notwithstanding Clause 30.4, the Supplier acknowledges that the Authority may, amongst other things, recover from the Supplier the following Losses incurred by the Authority to the extent that they arise as a result of a Default by the Supplier:
30.5.1 any Management Charge or Default Management Charge which are due and payable to the Authority;
30.5.2 any additional operational and/or administrative costs and expenses incurred by the Authority, including costs relating to time spent by or on behalf of the Authority in dealing with the consequences of the Default;
30.5.3 any wasted expenditure or charges;
30.5.4 the additional cost of procuring Replacement Goods and/or Services for the remainder of the Framework Period, which shall include any incremental costs associated with such Replacement Goods and/or Services above those which would have been payable under this Framework Agreement;
30.5.5 any compensation or interest paid to a third party by the Authority;
30.5.6 any fine, penalty or costs incurred by the Authority pursuant to Law.
30.6 Each Party shall use all reasonable endeavours to mitigate any loss or damage suffered arising out of or in connection with this Framework Agreement.
30.8 For the avoidance of doubt, the Parties acknowledge and agree that this Clause 30 shall not limit the Supplier’s liability to CSL under any Call Off Contract and the Supplier’s liability under a Call Off Contract shall be as provided for in that Call Off Contract only.
31. INSURANCE
31.1 The Supplier shall effect and maintain insurances in relation to the performance of its obligations under this Framework Agreement and any Call Off Contract, and shall procure that
Subcontractors shall effect and maintain insurances in relation to the performance of their obligations under any Sub-Contract, in accordance with Schedule 14 (Insurance Requirements).
31.2 The terms of any insurance or the amount of cover shall not relieve the Contractor of any liabilities arising under this Framework Agreement or any Call Off Contracts.
I. REMEDIES
32. AUTHORITY REMEDIES
32.1 Without prejudice to any other rights or remedies arising under this Framework Agreement, including under Clause 33.2 (Termination on Material Default), if the Supplier fails to achieve a KPI Target on two or more occasions within any twelve (12) Month rolling period, the Supplier acknowledges and agrees that the Authority shall have the right to exercise (in its absolute and sole discretion) all or any of the following remedial actions:
32.1.2 The Authority shall be entitled to require the Supplier, and the Supplier agrees to attend, within a reasonable time one (1) or more meetings at the request of the Authority in order to resolve the issues raised by the Authority in its notice to the Supplier requesting such meetings.
(a) fails to implement such requirements for improvement as set out in the Improvement Notice; and/or
(b) fails to implement an Improvement Plan Approved by the Authority;
then (without prejudice to any other rights and remedies of termination provided for in this Framework Agreement), the Authority shall be entitled to terminate this Framework Agreement for material Default.
J. TERMINATION AND SUSPENSION
33. AUTHORITY TERMINATION RIGHTS
33.1 Termination in Relation To Guarantee
33.1.1 Where the Authority has procured a Framework Guarantee from the Supplier under Clause 8.1 (Guarantee), the Authority may terminate this Framework Agreement by issuing a Termination Notice to the Supplier where:
(a) the Framework Guarantor withdraws the Framework Guarantee for any reason whatsoever;
(b) the Framework Guarantor is in breach or anticipatory breach of the Framework Guarantee;
(c) an Insolvency Event occurs in respect of the Framework Guarantor;
(d) the Framework Guarantee becomes invalid or unenforceable for any reason whatsoever; or
(e) the Supplier fails to provide the documentation required by Clause 8.1 by the date so specified by the Authority;
and in each case the Framework Guarantee (as applicable) is not replaced by an alternative guarantee agreement acceptable to the Authority.
33.1.2 Where CSL has procured a Call Off Guarantee from the Supplier under Clause
8.2 (Guarantee), the Authority may terminate this Framework Agreement by issuing a Termination Notice to the Supplier where:
(a) the Call Off Guarantor withdraws the Call Off Guarantee for any reason whatsoever;
(b) the Call Off Guarantor is in breach or anticipatory breach of the Call Off Guarantee;
(c) an Insolvency Event occurs in respect of the Call Off Guarantor; or
(d) the Call Off Guarantee becomes invalid or unenforceable for any reason whatsoever;
(e) the Supplier fails to provide the documentation required by Clause 8.2 by the date so specified by CSL;
and in each case the Call Off Guarantee (as applicable) is not replaced by an alternative guarantee agreement acceptable to the Authority or CSL.
33.2 Termination on Material Default
33.2.1 The Authority may terminate this Framework Agreement for material Default by issuing a Termination Notice to the Supplier where:
(a) the Supplier fails to accept a Call Off Contract pursuant to paragraph 7.3 of Framework Schedule 5 (Call Off Procedure);
(b) CSL terminates a Call Off Contract for the Supplier’s breach of that Call Off Contract;
(c) an Audit reveals that the Supplier has underpaid an amount equal to or greater than five per cent (5%) of the Management Charge due;
(d) the Supplier refuses or fails to comply with its obligations as set out in Framework Schedule 12 (Continuous Improvement and Benchmarking);
37
(e) in the event of two or more failures by the Supplier to meet the KPI Targets whether the failures relate to the same or different KPI targets, in any rolling period of three (3) months;
(f) the Authority expressly reserves the right to terminate this Framework Agreement for material Default including pursuant to:
Clause 9.4 (Cyber Essentials Scheme Condition); Clause 19.1.4(b)(ii) (Variation Procedure);
Clause 32.1.4 (Authority Remedies); Clause 27.2.10 (Confidentiality);
Clause 40.6.2 (Prevention of Fraud and Bribery); Clause 36.1.2 (Compliance with the Law);
Clause 41.3 (Conflicts of Interest);
paragraph 6.2 of Framework Schedule 9 (Management Information); and/or
anywhere that is stated in this Framework Agreement that the Supplier by its act or omission will have committed a material Default;
(g) the Supplier commits a material Default of any of the following Clauses or Framework Schedules:
Clause 7 (Representations and Warranties) except Clause 7.2.6; Clause 11 (Framework Agreement Performance);
Clause 18 (Records, Audit Access and Open Book Data); Clause 20 (Management Charge);
Clause 21 (Promoting Tax Compliance);
Clause 25 (Supply Chain Rights and Protection);
Clause 27.1 (Provision of Management Information);
Clause 27.3 (Transparency and Freedom of Information); Clause 27.4 (Protection of Personal Data);
paragraph 1.2 of Part B of Framework Schedule 2 (Goods and/or Services and Key Performance Indicators); and
paragraph 4 of Framework Schedule 16 (Financial Distress)
(h) the representation and warranty given by the Supplier pursuant to Clause
7.2.6 is materially untrue or misleading, and the Supplier fails to provide details of proposed mitigating factors which in the reasonable opinion of the Authority are acceptable;
(i) the Supplier commits any material Default which is not, in the reasonable opinion of the Authority, capable of remedy;
38
33.3 Not used
(j) the Supplier commits a Default, including a material Default, which in the opinion of the Authority is remediable but has not remedied such Default to the satisfaction of the Authority within twenty (20) Working Days, or such other period as may be specified by the Authority, after issue of a written notice from the Authority to the Supplier specifying the remediable Default and requesting it to be remedied in accordance with any instructions of the Authority and/or
(k) the Supplier fails to comply with the representation and warranty given by the Supplier pursuant to Clause 7.2.13 and/or Clause 7.2.14 (Representations and Warranties).
33.4 Termination on Insolvency
33.4.1 The Authority may terminate this Framework Agreement by issuing a Termination Notice to the Supplier where an Insolvency Event affecting the Supplier occurs.
33.5 Termination on Change of Control
33.5.2 The Supplier shall ensure that any notification made pursuant to Clause 33.5.1 shall set out full details of the Change of Control including the circumstances suggesting and/or explaining the Change of Control.
33.5.3 The Authority may terminate this Framework Agreement under Clause 33.5 by issuing a Termination Notice to the Supplier within six (6) Months of:
(a) being notified in writing that a Change of Control is anticipated or is in contemplation or has occurred; or
(b) where no notification has been made, the date that the Authority becomes aware that a Change of Control is anticipated or is in contemplation or has occurred,
but shall not be permitted to terminate where an Approval was granted prior to the Change of Control.
33.6 Termination for breach of Regulations
33.6.1 The Authority may terminate this Framework Agreement by issuing a Termination Notice to the Supplier on the occurrence of any of the statutory provisos contained in Regulation 73 (1) (a) to (c).
33.7 Termination Without Cause
33.7.1 The Authority shall have the right to terminate this Framework Agreement with effect from at any time following nine (9) Months after the Framework Commencement Date by giving at least three (3) Months' written notice to the Supplier.
33.8 Partial Termination
33.8.1 Where the Authority has the right to terminate this Framework Agreement, the Authority is entitled to terminate all or part of this Framework Agreement pursuant to this Clause 33.8 provided always that, if the Authority elects to terminate this Framework Agreement in part, the parts of this Framework Agreement not terminated or suspended can, in the Authority’s reasonable opinion, operate effectively to deliver the intended purpose of the surviving parts of this Framework Agreement.
33.8.2 The Parties shall endeavour to agree the effect of any Variation necessitated by a partial termination in accordance with Clause 19.1 (Variation Procedure) including the effect that the partial termination may have on the on the provision of any other Goods and/or Services and the Framework Prices provided that:
(a) the Supplier shall not be entitled to an increase in the Framework Prices in respect of the Goods and/or Services that have not been terminated if the partial termination arises due to the exercise of any of the Authority’s termination rights under Clause 33 (Authority Termination Rights) with the exception of Clause 33.7 (Termination Without Cause); and
(b) the Supplier shall not be entitled to reject the variation.
34. SUSPENSION OF SUPPLIER'S APPOINTMENT
34.1 If the Authority is entitled to terminate this Framework Agreement pursuant to Clause 33 (Authority Termination Rights), the Authority may instead elect in its sole discretion to suspend the Supplier's ability to accept Orders under this Framework Agreement by giving notice in writing to the Supplier, and the Supplier agrees that it shall not be entitled to enter into any new Call Off Contract during the period specified in the Authority’s notice.
34.2 Any suspension under Clause 34.1 shall be without prejudice to any right of termination which has already accrued, or subsequently accrues, to the Authority.
34.3 The Parties acknowledge that suspension shall not affect the Supplier's obligation to perform any existing Call Off Contracts concluded prior to the suspension notice.
34.4 If the Authority provides notice to the Supplier in accordance with this Clause 34.1, the Supplier's appointment under this Framework Agreement shall be suspended for the period set out in the notice or such other period notified to the Supplier by the Authority in writing from time to time.
34.5 For the avoidance of doubt, no period of suspension under this Clause 34 shall result in an extension of the Framework Period.
35. CONSEQUENCES OF EXPIRY OR TERMINATION
35.2 Termination or expiry of this Framework Agreement shall not cause any Call Off Contracts to terminate automatically. For the avoidance of doubt, all Call Off Contracts shall remain in force unless and until they are terminated or expire in accordance with the provisions of the Call Off Contract and the Supplier shall continue to pay any Management Charge due to the Authority in relation to such Call Off Contracts, notwithstanding the termination or expiry of this Framework Agreement.
35.3 If the Authority terminates this Framework Agreement under Clause 33.2 (Termination on Material Default) and then makes other arrangements for the supply of the Goods and/or Services to CSL, the Supplier shall indemnify the Authority in full upon demand for the cost of procuring, implementing and operating any alternative or replacement goods and/or services to the Goods and/or Services and 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.
35.4 Within ten (10) Working Days of the date of termination or expiry of this Framework Agreement, the Supplier shall return to the Authority any and all of the Authority’s Confidential Information in the Supplier's possession, power or control, either in its then current format or in a format nominated by the Authority, and any other information and all copies thereof owned by the Authority, save that it may keep one copy of any such data or information to the extent reasonably necessary to comply with its obligations under this Framework Agreement or under any Law, for a period of up to twelve (12) Months (or such other period as Approved by the Authority and is reasonably necessary for such compliance).
35.5 Termination or expiry of this Framework Agreement shall be without prejudice to any rights, remedies or obligations of either Party accrued under this Framework Agreement prior to termination or expiry.
35.6 Termination or expiry of this Framework Agreement shall be without prejudice to the survival of any provision of this Framework Agreement which expressly (or by implication) is to be performed or observed notwithstanding termination or expiry of this Framework Agreement, including the provisions of:
35.6.1 Clauses 1 (Definitions and Interpretation), 7 (Representations and Warranties),
9 (Cyber Essentials Scheme Condition), 11 (Framework Agreement Performance), 18 (Records, Audit Access and Open Book Data), 20 (Management Charge) ,23 (Financial Distress) 26 (Intellectual Property Rights), 27.1 (Provision of Management Information), 27.2 (Confidentiality),
27.3 (Transparency), 27.3 (Transparency and Freedom of Information), 27.4 (Protection of Personal Data), 30 (Liability), 31 (Insurance), 35 (Consequences of Expiry or Termination), 36 (Compliance), 38 (Waiver and Cumulative Remedies), 40 (Prevention of Fraud and Bribery), 42 (Severance), 44 (Entire Agreement), 45 (Third Party Rights), 46 (Notices), 47 (Complaints Handling), 48 (Dispute Resolution) and 49 (Governing Law and Jurisdiction); and
35.6.2 Framework Schedules 2 (Goods and/or Services and Key Performance Indicators), 3 (Framework Prices and Charging Structure), 7 (Key Sub- Contractors), 8 (Framework Management), 9 (Management Information), 10 (Annual Self Audit Certificate), 12 (Continuous Improvement and Benchmarking), 13 (Guarantee), 14 (Insurance Requirements), 16 (Financial Distress), 17 (Commercially Sensitive Information) and 21 (Tender).
K. MISCELLANEOUS AND GOVERNING LAW
36. COMPLIANCE
36.1 Compliance with Law
36.1.2 In the event that the Supplier or the Supplier Personnel fails to comply with Clause 36.1.1, this shall be deemed to be a material Default and the Authority reserves the right to terminate this Framework Agreement by giving notice in writing to the Supplier.
36.2 Equality and Diversity
36.2.1 The Supplier shall:
(a) perform its obligations under this Framework Agreement (including those in relation to the provision of the Goods and/or Services) in accordance with:
all applicable equality Law (whether in relation to race, sex, gender reassignment, religion or belief, disability, sexual orientation, pregnancy, maternity, age or otherwise); and
any other requirements and instructions which the Authority reasonably imposes in connection with any equality obligations imposed on the Authority at any time under applicable equality Law;
(b) take all necessary steps, and inform the Authority of the steps taken, to prevent unlawful discrimination designated as such by any court or tribunal, or the Equality and Human Rights Commission or (any successor organisation).
36.3 Official Secrets Act and Finance Act
36.3.1 The Supplier shall comply with the provisions of:
(a) the Official Secrets Acts 1911 to 1989; and
(b) section 182 of the Finance Xxx 0000.
37. ASSIGNMENT AND NOVATION
37.1 The Supplier shall not assign, novate, or otherwise dispose of or create any trust in relation to any or all of its rights, obligations or liabilities under this Framework Agreement or any part of it without Approval.
37.2.1 any Other Contracting Authority; or
37.2.2 any Central Government Body or other body established by the Crown or under statute in order substantially to perform any of the functions that had previously been performed by the Authority; or
37.2.3 any private sector body which substantially performs the functions of the Authority,
37.3 A change in the legal status of the Authority such that it ceases to be a Contracting Authority shall not, subject to Clause 37.4 affect the validity of this Framework Agreement and this Framework Agreement shall be binding on any successor body to the Authority.
37.4 If the Authority assigns, novates or otherwise disposes of any of its rights, obligations or liabilities under this Framework Agreement to a body which is not an Other Contracting Authority or if a body which is not an Other Contracting Authority succeeds the Authority (both “Transferee” in the rest of this Clause) the right of termination of the Authority in Clause 33.4 (Termination on Insolvency) shall be available to the Supplier in the event of the insolvency of the Transferee (as if the references to Supplier in Clause 33.4 (Termination on Insolvency)) and to Supplier or the Framework Guarantor or Call Off Guarantor in the definition of Insolvency Event were references to the Transferee.
38. WAIVER AND CUMULATIVE REMEDIES
38.1 The rights and remedies under this Framework Agreement may be waived only by notice in accordance with Clause 46 (Notices) and in a manner that expressly states that a waiver is intended. A failure or delay by a Party in ascertaining or exercising a right or remedy provided under this Framework Agreement or by Law shall not constitute a waiver of that right or remedy, nor shall it prevent or restrict the further exercise thereof.
38.2 Unless otherwise provided in this Framework Agreement, rights and remedies under this Framework Agreement are cumulative and do not exclude any rights or remedies provided by Law, in equity or otherwise.
39. RELATIONSHIP OF THE PARTIES
39.1 Except as expressly provided otherwise in this Framework Agreement, nothing in this Framework Agreement, nor any actions taken by the Parties pursuant to this Framework Agreement, shall create a partnership, joint venture or relationship of employer and employee or principal and agent between the Parties, or authorise either Party to make representations or enter into any commitments for or on behalf of any other Party.
40. PREVENTION OF FRAUD AND BRIBERY
40.1.1 committed a Prohibited Act or been formally notified that it is subject to an investigation or prosecution which relates to an alleged Prohibited Act; and/or
40.1.2 been listed by any government department or agency as being debarred, suspended, proposed for suspension or debarment, or otherwise ineligible for participation in government procurement programmes or contracts on the grounds of a Prohibited Act.
40.2 The Supplier shall not during the Framework Period:
40.2.1 commit a Prohibited Act; and/or
40.2.2 do or suffer anything to be done which would cause the Authority or any of the Authority’s employees, consultants, contractors, sub-contractors or agents to contravene any of the Relevant Requirements or otherwise incur any liability in relation to the Relevant Requirements.
40.3 The Supplier shall during the Framework Period:
40.3.3 keep appropriate records of its compliance with its obligations under Clause 40.3.1 and make such records available to the Authority on request;
40.3.4 if so required by the Authority, within twenty (20) Working Days of the Framework Commencement Date, and annually thereafter, certify in writing to the Authority, the compliance with this Clause 40.3 of all persons associated with the Supplier or its Sub-Contractors who are responsible for supplying the Goods and/or Services in connection with this Framework Agreement. The Supplier shall provide such supporting evidence of compliance as the Authority may reasonably request; and
40.3.5 have, maintain and where appropriate enforce an anti-bribery policy (which shall be disclosed to the Authority on request) to prevent it and any Supplier Personnel or any person acting on the Supplier's behalf from committing a Prohibited Act.
40.4 The Supplier shall immediately notify the Authority in writing if it becomes aware of any breach of Clauses 40.1, 40.2 and 40.3.2, or has reason to believe that it has or any of the Supplier Personnel has:
40.4.1 been subject to an investigation or prosecution which relates to an alleged Prohibited Act;
40.4.2 been listed by any government department or agency as being debarred, suspended, proposed for suspension or debarment, or otherwise ineligible for participation in government procurement programmes or contracts on the grounds of a Prohibited Act; and/or
40.4.3 received a request or demand for any undue financial or other advantage of any kind in connection with the performance of this Framework Agreement or otherwise suspects that any person or Party directly or indirectly connected
with this Framework Agreement has committed or attempted to commit a Prohibited Act.
40.5 If the Supplier makes a notification to the Authority pursuant to Clause 40.4, the Supplier shall respond promptly to the Authority's enquiries, co-operate with any investigation, and allow the Authority to audit any books, records and/or any other relevant documentation in accordance with Clause 18 (Records, Audit Access and Open Book Data).
40.6 If the Supplier breaches Clause 40.1,the Authority may by notice:
40.6.1 require the Supplier to remove from the performance of this Framework Agreement any Supplier Personnel whose acts or omissions have caused the Supplier’s breach; or
40.6.2 immediately terminate this Framework Agreement for material Default.
40.7 Any notice served by the Authority under Clause 40.6 shall specify the nature of the Prohibited Act, the identity of the Party who the Authority believes has committed the Prohibited Act and the action that the Authority has elected to take (including, where relevant, the date on which this Framework Agreement shall terminate).
41. CONFLICTS OF INTEREST
41.2 The Supplier shall promptly notify and provide full particulars to the Authority or the relevant Other Contracting Authority if such conflict referred to in Clause 41.1 arises or may reasonably been foreseen as arising.
41.3 The Authority reserves the right to terminate this Framework Agreement immediately by giving notice in writing to the Supplier and/or to take such other steps it deems necessary where, in the reasonable opinion of the Authority, there is or may be an actual conflict, or a potential conflict, between the pecuniary or personal interests of the Supplier and the duties owed to the Authority under the provisions of this Framework Agreement or any Call Off Contract. The action of the Authority pursuant to this Clause 41.3 shall not prejudice or affect any right of action or remedy which shall have accrued or shall thereafter accrue to the Authority.
42. SEVERANCE
42.2 In the event that any deemed deletion under Clause 42.1 is so fundamental as to prevent the accomplishment of the purpose of this Framework Agreement or materially alters the balance
45
of risks and rewards in this Framework Agreement, either Party may give notice to the other Party requiring the Parties to commence good faith negotiations to amend this Framework Agreement so that, as amended, it is valid and enforceable, preserves the balance of risks and rewards in this Framework Agreement and, to the extent that is reasonably practicable, achieves the Parties' original commercial intention.
42.3 If the Parties are unable to resolve any Dispute arising under this Clause 42 within twenty (20) Working Days of the date of the notice given pursuant to Clause 42.2, this Framework Agreement shall automatically terminate with immediate effect. The costs of termination incurred by the Parties shall lie where they fall if this Framework Agreement is terminated pursuant to this Clause 42.3.
43. FURTHER ASSURANCES
43.1 Each Party undertakes at the request of the other, and at the cost of the requesting Party to do all acts and execute all documents which may be necessary to give effect to the meaning of this Framework Agreement.
44. ENTIRE AGREEMENT
44.1 This Framework Agreement constitutes the entire agreement between the Parties in respect of the subject matter and supersedes and extinguishes all prior negotiations, course of dealings or agreements made between the Parties in relation to its subject matter, whether written or oral.
44.2 Neither Party has been given, nor entered into this Framework Agreement in reliance on, any warranty, statement, promise or representation other than those expressly set out in this Framework Agreement.
44.3 Nothing in this Clause 44 shall exclude any liability in respect of misrepresentations made fraudulently.
45. THIRD PARTY RIGHTS
45.1.1 Clauses: 4 (Scope of Framework Agreement), 5 (Call Off Procedure), 6 (Assistance in Related Procurements), 7 (Representations and Warranties) 8 (Guarantee) 16 (Call Off Performance Under Framework Agreement Performance), 18 (Records, Audit Access and Open Book Data), , 27.4 (Protection of Personal Data), 31 (Insurance), 36.2 (Equality and Diversity) and 45 (Third Party Rights); and
45.1.2 Framework Schedules 3 (Framework Prices and Charging Structure ), 5 (Call Off Procedure), 13 (Guarantee), 14 (Insurance Requirements), and 21 (Tender),
(together “Third Party Provisions”) confer benefits on persons named in such provisions other than the Parties (each such person a “Third Party Beneficiary”) and are intended to be enforceable by Third Parties Beneficiaries by virtue of the CRTPA.
45.2 Subject to Clause 45.1, a person who is not Party to this Framework Agreement has no right to enforce any term of this Framework Agreement under the CRTPA but this does not affect
46
any right or remedy of any person which exists or is available otherwise than pursuant to the CRTPA.
45.3 No Third Party Beneficiary may enforce, or take any step to enforce, any Third Party Provision without Approval, which may, if given, be given on and subject to such terms as the Authority may determine.
45.4 Any amendments or modifications to this Framework Agreement may be made, and any rights created under Clause 45.1 may be altered or extinguished, by the Parties without the consent of any Third Party Beneficiary.
45.5 The Authority may act as agent and trustee for each Third Party Beneficiary and/or enforce on behalf of that Third Party Beneficiary any Third Party Provision and/or recover any Loss suffered by that Third Party Beneficiary in connection with a breach of any Third Party Provision.
46. NOTICES
46.1 Except as otherwise expressly provided within this Framework Agreement, any notices issued under this Framework Agreement must be in writing. For the purpose of this Clause 46, an e- mail is accepted as being "in writing".
46.2 Subject to Clause 46.3, the following table sets out the method by which notices may be served under this Framework Agreement and the respective deemed time and proof of service:
Manner of delivery | Deemed time of delivery | Proof of Service |
Email (Subject to Clause 46.3) | 9.00am on the first Working Day after sending | Dispatched as a pdf attachment to an e-mail to the correct e-mail address without any error message |
Personal delivery | On delivery, provided delivery is between 9.00am and 5.00pm on a Working Day. Otherwise, delivery will occur at 9.00am on the next Working Day | Properly addressed and delivered as evidenced by signature of a delivery receipt |
Royal Mail Signed For™ 1st Class or other prepaid, next Working Day service providing proof of delivery | At the time recorded by the delivery service, provided that delivery is between 9.00am and 5.00pm on a Working Day. Otherwise, delivery will occur at 9.00am on the same Working Day (if delivery before 9.00am) or on the next Working Day (if after 5.00pm) | Properly addressed prepaid and delivered as evidenced by signature of a delivery receipt |
46.3 The following notices may only be served as an attachment to an email if the original notice is then sent to the recipient by personal delivery or Royal Mail Signed For™ 1st Class or other prepaid in the manner set out in the table in Clause 46.2 within twenty four (24) hours of transmission of the email:
47
46.3.1 any Termination Notice under Clause 33 (Authority Termination Rights), including in respect of partial termination;
46.3.2 any notice in respect of:
(a) Suspension of Supplier’s appointment (Clause 34)
(b) Waiver (Clause 38);
(c) Default or Authority Cause; and
46.3.3 any Dispute Notice.
46.4 Failure to send any original notice in accordance with Clause 46.3 shall invalidate the service of the related e-mail transmission. The deemed time of delivery of such notice shall be the deemed time of delivery of the original notice sent by personal delivery or Royal Mail Signed For™ 1st Class delivery (as set out in the table in Clause 46.2) or, if earlier, the time of response or acknowledgement by the receiving Party to the email attaching the notice.
46.5 This Clause 46 does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution (other than the service of a Dispute Notice under Framework Schedule 18 (Dispute Resolution Procedure).
46.6 For the purposes of this Clause 46, the address of each Party shall be:
46.6.1 For the Authority:
Crown Commercial Service
0xx Xxxxx Xxx Xxxxxxx
Xxx Xxxx Xxxxxx Xxxxxxxxx
X0 0XX
For the attention of: [insert CCS contact name]
46.6.2 For the Supplier:
[insert name of supplier]
Address: [insert address of supplier]
For the attention of: [insert supplier contact name]
[Guidance Note: CCS and Supplier to provide respective contact details]
46.8 This Clause 46 does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution (other than the service of a Dispute Notice under the Dispute Resolution Procedure)
47. COMPLAINTS HANDLING
47.1 Either Party shall notify the other Party of any Complaints made by CSL or a Service Recipient, which are not resolved by operation of the Supplier's usual complaints handling procedure
within five (5) Working Days of becoming aware of that Complaint and, if the Supplier is the Party providing the notice, such notice shall contain full details of the Supplier's plans to resolve such Complaint.
47.2 Without prejudice to any rights and remedies that a complainant may have at Law (including under this Framework Agreement and/or a Call Off Contract), and without prejudice to any obligation of the Supplier to take remedial action under the provisions of this Framework Agreement and/or a Call Off Contract, the Supplier shall use its best endeavours to resolve the Complaint within ten (10) Working Days and in so doing, shall deal with the Complaint fully, expeditiously and fairly.
47.3 Within two (2) Working Days of a request by the Authority, the Supplier shall provide full details of a Complaint to the Authority, including details of steps taken to achieve its resolution.
48. DISPUTE RESOLUTION
48.1 The Parties shall resolve Disputes arising out of or in connection with this Framework Agreement in accordance with the Dispute Resolution Procedure.
48.2 The Supplier shall continue to provide the Goods and/or Services in accordance with the terms of this Framework Agreement until a Dispute has been resolved.
49. GOVERNING LAW AND JURISDICTION
49.1 This Framework Agreement and any issues, disputes or claims (whether contractual or non- contractual) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the laws of England and Wales.
49.2 Subject to Clause 48 (Dispute Resolution) and Framework Schedule 18 (Dispute Resolution Procedure) (including the Authority’s right to refer the Dispute to arbitration), the Parties agree that the courts of England and Wales shall have exclusive jurisdiction to settle any Dispute or claim (whether contractual or non-contractual) that arises out of or in connection with this Framework Agreement or its subject matter or formation.
IN WITNESS of which this Framework Agreement has been duly executed by the Parties.
Signed duly authorised for and on behalf of the SUPPLIER Signature: ……………………………………………….
Name: ……………………………………………….
Position: ……………………………………………….
Date ……………………………………………….
[Guidance Note: this document should be signed by the same supplier entity that submitted the [PQQ and] Tender.]
Signed for and on behalf of the AUTHORITY Signature: ……………………………………………….
Name: ……………………………………………….
Position: ……………………………………………….
Date ……………………………………………….
FRAMEWORK SCHEDULE 1: DEFINITIONS
1. In accordance with Clause 1.1 (Definitions), in this Framework Agreement including its Recitals the following expressions shall have the following meanings:
“Additional Services” | means any services required by CSL or its Service Recipients and referred to as such in Annex 1 of Call Off Schedule 2 (Goods and Services); |
"Admin Fees" | |
"Affiliates" | means in relation to a body corporate, any other entity which directly or indirectly Controls, is Controlled by, or is under direct or indirect common Control of that body corporate from time to time; |
"Approval" | means the prior written consent of the Authority and "Approve" and "Approved" shall be construed accordingly; |
"Audit" | means an audit carried out pursuant to Clause 18 (Records, Audit Access and Open Book Data); |
"Audit Report" | means a report summarising the testing completed and the actions arising following an Audit; |
"Auditor" | means the Authority, and/or CSL who is a party to a Call Off Contract, and/or the National Audit Office and/or any auditor appointed by the Audit Commission, and /or the representatives of any of them; |
"Authority" | means THE MINISTER FOR THE CABINET OFFICE ("Cabinet Office") as represented by Crown Commercial Service, a trading fund of the Cabinet Office, whose offices are located at 0xx Xxxxx, Xxx Xxxxxxx, Xxx Xxxx Xxxxxx, Xxxxxxxxx X0 0XX; |
“Authority Cause” | means any breach of the obligations of the Authority (including but not limited to any fundamental breach or breach of a fundamental term) or any other default, act, omission, misrepresentation, negligence or negligent statement of the Authority in connection with or in relation to this Framework Agreement or the subject matter of this Framework Agreement and in respect of which the Authority is liable to the Supplier; |
"Authority Personal Data" | means any Personal Data supplied for the purposes of or in connection with this Framework Agreement by the Authority to the Supplier; |
"Authority Representative" | means the representative appointed by the Authority from time to time in relation to this Framework Agreement; |
"Authority's Confidential Information" | means all Authority Personal Data and any information, however it is conveyed, that relates to the business, affairs, developments, trade secrets, Know How, personnel, and suppliers of the Authority and/or Other Contracting Authorities, including all IPR, together with all information derived from any of the above, and any other information clearly designated as being confidential (whether or not it is marked “confidential”) or which ought reasonably to be considered to be confidential; |
"Branding Guidance" | means the Authority's guidance in relation to the use of branding available at xxxx://xxxxxx.xxxxxxxxxxxx.xxx.xx/xxxxx/0000/00/xxxxxxxx-xxxxxx- April-2012.pdf |
"Call Off Contract" | means a legally binding agreement (entered into pursuant to the provisions of this Framework Agreement) comprised of a completed Template Order Form and Template Terms and Conditions for the provision of the Goods and/or Services made between CSL and the Supplier pursuant to Framework Schedule 5 (Call Off Procedure); |
"Call Off Guarantee" | means a deed of guarantee in favour of CSL in the form set out in Framework Schedule 13 (Guarantee) and granted pursuant to Clause 4 of the Template Call Off terms; |
"Call Off Guarantor" | means the person acceptable to CSL to give a Call Off Guarantee; |
"Call Off Procedure" | means the process for awarding a Call Off Contract pursuant to Clause 5 (Call Off Procedure) and Framework Schedule 5 (Call Off Procedure); |
"CEDR" | means the Centre for Effective Dispute Resolution; |
"Central Government Body" | means a body listed in one of the following sub-categories of the Central Government classification of the Public Sector Classification Guide, as published and amended from time to time by the Office for National Statistics: a) Government Department; b) Non-Departmental Public Body or Assembly Sponsored Public Body (advisory, executive, or tribunal); c) Non-Ministerial Department; or d) Executive Agency; |
"Change in Law" | means any change in Law which impacts on the supply of the Goods and/or Services and performance of the Template Call Off Terms which comes into force after the Framework Commencement Date; |
"Change of Control" | means a change of control within the meaning of Section 450 of the Corporation Tax Xxx 0000; |
52
"Charges" | means the charges raised under or in connection with a Call Off Contract from time to time, which charges shall be calculated in a manner which is consistent with the Charging Structure; |
"Charging Structure" | means the structure to be used in the establishment of the charging model which is applicable to each Call Off Contract, which structure is set out in Framework Schedule 3 (Framework Prices and Charging Structure); |
"Commercially Sensitive Information" | means the Confidential Information listed in Framework Schedule 17 (Commercially Sensitive Information) (if any) comprising of commercially sensitive information relating to: - (a) the pricing of the Services; (b) details of the Supplier’s IPR; (c) the Supplier’s business and investment plans; and/or (d) the Supplier’s trade secrets; a) which the Supplier has indicated to the Authority that, if disclosed by the Authority, would cause the Supplier significant commercial disadvantage or material financial loss; |
"Comparable Supply" | means the supply of Goods and/or Services to another customer of the Supplier that are the same or similar to the Goods and/or Services; |
"Complaint" | means any formal written complaint raised by CSL in relation to the performance of this Framework Agreement or any Call Off Contract in accordance with Clause 47 (Complaints Handling); |
"Confidential Information" | means the Authority's Confidential Information and/or the Supplier's Confidential Information, as the context requires; |
"Continuous Improvement Plan" | means a plan for improving the provision of the Goods and/or Services and/or reducing the Charges produced by the Supplier pursuant to Framework Schedule 12 (Continuous Improvement and Benchmarking); |
"Contract Year" | means a consecutive period of twelve (12) Months commencing on the Framework Commencement Date or each anniversary thereof; |
"Control" | means control in either of the senses defined in sections 450 and 1124 of the Corporation Tax Act 2010 and "Controlled" shall be construed accordingly; |
"Costs" | means the following costs (without double recovery) to the extent that they are reasonably and properly incurred by the Supplier in providing the Goods and/or Services: |
53
a) the cost to the Supplier or the Key Sub-Contractor (as the context requires), calculated per Man Day, of engaging the Supplier Personnel, including:
i) base salary paid to the Supplier Personnel;
ii) employer’s national insurance contributions;
iii) pension contributions;
iv) car allowances;
v) any other contractual employment benefits;
vi) staff training;
vii) work place accommodation;
viii) work place IT equipment and tools reasonably necessary to provide the Goods and/or Services (but not including items included within limb (b) below); and
ix) reasonable recruitment costs, as agreed with CSL under any Call Off Contracts;
b) costs incurred in respect of those Supplier Assets which are detailed on the Registers (“Supplier Assets” and “Register” shall have the meaning given to them under Call Off Schedule 1 (Definitions)) and which would be treated as capital costs according to generally accepted accounting principles within the UK, which shall include the cost to be charged in respect of Supplier Assets by the Supplier to CSL or (to the extent that risk and title in any Supplier Asset is not held by the Supplier) any cost actually incurred by the Supplier in respect of those Supplier Assets;
c) operational costs which are not included within (a) or (b) above, to the extent that such costs are necessary and properly incurred by the Supplier in the provision of the Goods and/or Services;
but excluding:
i) Overhead;
ii) financing or similar costs;
iii) maintenance and support costs to the extent that these relate to maintenance and/or support services provided beyond the Framework Period and term of any Call Off Contracts whether in relation to Supplier Assets or otherwise;
iv) taxation;
v) fines and penalties;
54
vi) amounts payable under the benchmarking provisions of Framework Schedule 12 (Continuous Improvement and Benchmarking); and vii) non-cash items (including depreciation, amortisation, impairments and movements in provisions); | |
"Crown" | means the government of the United Kingdom (including the Northern Ireland Assembly and Executive Committee, the Scottish Executive and the National Assembly for Wales), including, but not limited to, government ministers and government departments and particular bodies, persons, commissions or agencies from time to time carrying out functions on its behalf; |
"Crown Body" | means any department, office or executive agency of the Crown; |
"CRTPA" | means the Contracts (Rights of Third Parties) Xxx 0000; |
“CSL” | means Civil Service Learning (part of the Cabinet Office) which provides learning and development to all civil servants; |
“Cyber Essentials Scheme” | means the Cyber Essentials Scheme developed by the Government which provides a clear statement of the basic controls all organisations should implement to mitigate the risk from common internet based threats. Details of the Cyber Essentials Scheme can be found here: xxxxx://xxx.xxx.xx/xxxxxxxxxx/xxxxxxxxxxxx/xxxxx-xxxxxxxxxx- scheme-overview; |
“Cyber Essentials Scheme Basic Certificate” | means the certificate awarded on the basis of self-assessment, verified by an independent certification body, under the Cyber Essentials Scheme and is the basic level of assurance; |
“Cyber Essentials Scheme Data” | means sensitive and personal information and other relevant information as referred to in the Cyber Essentials Scheme; |
"Data Controller" | has the meaning given to it in the Data Protection Xxx 0000, as amended from time to time; |
"Data Processor" | has the meaning given to it in the Data Protection Xxx 0000, as amended from time to time; |
"Data Protection Legislation or “DPA”" | means the Data Protection Xxx 0000, as amended from time to time and all applicable laws and regulations relating to processing of personal data and privacy, including where applicable the guidance and codes of practice issued by the Information Commissioner or relevant Government department in relation to such legislation; |
55
"Data Subject" | has the meaning given to it in the Data Protection Xxx 0000, as amended from time to time; |
"Data Subject Access Request" | means a request made by a Data Subject in accordance with rights granted pursuant to the DPA to access his or her Personal Data; |
"Default" | means any breach of the obligations of the Supplier (including but not limited to any fundamental breach or breach of a fundamental term) or any other default, act, omission, misrepresentation, negligence or negligent statement of the Supplier or the Supplier Personnel in connection with or in relation to this Framework Agreement or the subject matter of this Framework Agreement and in respect of which the Supplier is liable to the Authority; |
"Default Management Charge" | has the meaning given to it in paragraph 6.2 of Framework Schedule 9 (Management Information); |
“Disclosing Party” | means a Party which discloses or makes available directly or indirectly its Confidential Information to the Recipient; |
"Direct Award Criteria" | means the award criteria to be applied for the direct award of Call Off Contracts for Goods and/or Services set out in Part A of Framework Schedule 6 (Award Criteria); |
"Dispute" | means any dispute, difference or question of interpretation arising out of or in connection with this Framework Agreement, including any dispute, difference or question of interpretation relating to the Goods and/or Services, failure to agree in accordance with the procedure for variations in Clause 16.1(Variation Procedure) or any matter where this Framework Agreement directs the Parties to resolve an issue by reference to the Dispute Resolution Procedure; |
"Dispute Notice" | means a written notice served by one Party on the other stating that the Party serving the notice believes that there is a Dispute; |
"Dispute Resolution Procedure" | means the dispute resolution procedure set out in Framework Schedule 18 (Dispute Resolution); |
"DOTAS" | means the Disclosure of Tax Avoidance Schemes rules which require a promoter of tax schemes to tell HMRC of any specified notifiable arrangements or proposals and to provide prescribed information on those arrangements or proposals within set time limits as contained in Part 7 of the Finance Xxx 0000 and in secondary legislation made under xxxxx contained in Part 7 of the Finance Xxx 0000 and as extended to national insurance contributions by the National Insurance Contributions (Application of Part 7 of the Finance Act 2004) Regulations 2012, |
56
SI 2012/1868) made under section 132A of the Social Security Xxxxxxxxxxxxxx Xxx 0000; | |
"DPA" | means the Data Protection Xxx 0000 as amended from time to time; |
"Due Diligence Information" | means any information supplied to the Supplier by or on behalf of the Authority prior to the Framework Commencement Date; |
"Environmental Information Regulations or EIRs" | means the Environmental Information Regulations 2004 together with any guidance and/or codes of practice issued by the Information Commissioner or relevant Government department in relation to such regulations; |
"Equivalent Goods and/or Services" | means goods and/or services which the Supplier can supply which are the same or similar to the Goods and/or Services; |
“ESFA” | means the Education and Skills Funding Agency; |
“Extension Framework Period” | means such period or periods up to a maximum of two years in total as may be specified by the Authority pursuant to Clause Error! Reference source not found. (Framework Period); |
"Financial Distress Event" | means the occurrence or one or more of the events listed in paragraph 3 of Schedule 16 (Financial Distress); |
"FOIA" | means the Freedom of Information Xxx 0000 as amended from time to time and any subordinate legislation made under that Act from time to time together with any guidance and/or codes of practice issued by the Information Commissioner or relevant Government department in relation to such legislation; |
"Framework" | means the framework arrangements established by the Authority for the provision of the Goods and/or Services to Contracting Authorities by suppliers (including the Supplier) pursuant to the OJEU Notice; |
"Framework Agreement" | means this agreement consisting of the Clauses together with the Framework Schedules and any appendices and annexes to the same; |
"Framework Commencement Date" | means [insert date dd/mm/yyyy]; |
"Framework Guarantee" | |
"Framework Guarantor" | means any person acceptable to the Authority to give a Framework Guarantee; |
57
"Framework Period" | means the period from the Framework Commencement Date until the expiry or earlier termination of this Framework Agreement; |
"Framework Price(s)" | means the price(s) applicable to the provision of the Goods and/or Services set out in Framework Schedule 3 (Framework Prices and Charging Structure); |
"Framework Schedules" | means the schedules to this Framework Agreement; |
"Framework Suppliers" | means the suppliers (including the Supplier) appointed under this Framework Agreement or agreements on the same or similar terms to this Framework Agreement as part of the Framework; |
"Fraud" | means any offence under any Laws creating offences in respect of fraudulent acts (including the Misrepresentation Act 1967) or at common law in respect of fraudulent acts including acts of forgery; |
“Funding Rules” | means the rules published by the ESFA as amended from time to time (xxxxx://xxx.xxx.xx/xxxxxxxxxx/xxxxxxxxxxxx/xxxxxxxxxxxxxx- funding-and-performance-management-rules-2017-to-2018); |
"General Anti-Abuse Rule" | means (a) the legislation in Part 5 of the Finance Xxx 0000; and (b) any future legislation introduced into parliament to counteract tax advantages arising from abusive arrangements to avoid national insurance contributions; |
"General Change in Law" | means a Change in Law where the change is of a general legislative nature (including taxation or duties of any sort affecting the Supplier) or which affects or relates to a Comparable Supply; |
"Good Industry Practice" | means standards, practices, methods and procedures conforming to the Law and the exercise of the degree of skill and care, diligence, prudence and foresight which would reasonably and ordinarily be expected from a skilled and experienced person or body engaged within the relevant industry or business sector; |
"Goods" | means the goods described in Framework Schedule 2 (Goods and/or Services and Key Performance Indicators) which the Supplier shall make available to Contracting Authorities; |
"Goods and/or Services Requirements" | means the requirements of CSL’s Service Recipients for the Goods and/or Services from time to time; |
"Government" | means the government of the United Kingdom (including the Northern Ireland Assembly and Executive Committee, the Scottish Executive and the National Assembly for Wales), including government ministers and government departments |
58
and other bodies, persons, commissions or agencies from time to time carrying out functions on its behalf; | |
"Halifax Abuse Principle" | means the principle explained in the CJEU Case C-255/02 Halifax and others; |
"Holding Company" | has the meaning given to it in section 1159 of the Companies Xxx 0000; |
"Improvement Plan" | means the plan required by the Authority from the Supplier which shall detail how the Supplier will improve the provision of the Goods and/or Services pursuant to Clause 32.1.1 (Authority Remedies); |
"Improvement Notice" | means the notice issued by the Authority to the Supplier pursuant to Clause 32.1.3 (Authority Remedies) which will detail how the Supplier shall improve the provision of the Goods and/or Services; |
"Information" | has the meaning given under section 84 of the Freedom of Information Xxx 0000 as amended from time to time; |
“Initial Framework Period” | means the period from the Framework Commencement Date until its first anniversary; |
"Insolvency Event" | means, in respect of the Supplier or Framework Guarantor or Call Off Guarantor (as applicable): a) a proposal is made for a voluntary arrangement within Part I of the Insolvency Xxx 0000 or of any other composition scheme or arrangement with, or assignment for the benefit of, its creditors; or b) a shareholders' meeting is convened for the purpose of considering a resolution that it be wound up or a resolution for its winding-up is passed (other than as part of, and exclusively for the purpose of, a bona fide reconstruction or amalgamation); or c) a petition is presented for its winding up (which is not dismissed within fourteen (14) Working Days of its service) or an application is made for the appointment of a provisional liquidator or a creditors' meeting is convened pursuant to section 98 of the Insolvency Xxx 0000; or d) a receiver, administrative receiver or similar officer is appointed over the whole or any part of its business or assets; or e) an application order is made either for the appointment of an administrator or for an administration order, an administrator is appointed, or notice of intention to appoint an administrator is given; or |
59
f) it is or becomes insolvent within the meaning of section 123 of the Insolvency Xxx 0000; or g) being a "small company" within the meaning of section 382(3) of the Companies Xxx 0000, a moratorium comes into force pursuant to Schedule A1 of the Insolvency Xxx 0000; or h) where the Supplier or Framework Guarantor is an individual or partnership, any event analogous to those listed in limbs (a) to (g) (inclusive) occurs in relation to that individual or partnership; or i) any event analogous to those listed in limbs (a) to (h) (inclusive) occurs under the law of any other jurisdiction; | |
"Intellectual Property Rights" or "IPR" | means: a) copyright, rights related to or affording protection similar to copyright, rights in databases, patents and rights in inventions, semi-conductor topography rights, trade marks, rights in Internet domain names and website addresses and other rights in trade names, designs, Know- How, trade secrets and other rights in Confidential Information; b) applications for registration, and the right to apply for registration, for any of the rights listed at (a) that are capable of being registered in any country or jurisdiction; and c) all other rights having equivalent or similar effect in any country or jurisdiction; |
"Invitation to Tender" or “ITT” | has the meaning given to it in Recital C to this Framework Agreement; |
"Key Sub-Contract" | means each Sub-Contract with a Key Sub-Contractor; |
"Key Sub-Contractor" | means any Sub-Contractor which is listed in Framework Schedule 7 (Key Sub-Contractors), that in the opinion of the Authority, performs (or would perform if appointed) a critical role in the provision of all or any part of the Goods and/or Services; |
"IPR Claim" | means any claim of infringement or alleged infringement (including the defence of such infringement or alleged infringement) of any IPR used to provide the Services or as otherwise provided and/or licensed by the Supplier (or to which the Supplier has provided access) to the Authority in the fulfilment of its obligations under this Framework Agreement; |
"Key Performance Indicators" or "KPIs" | means the performance measurements and targets set out in Part B of Framework Schedule 2 (Goods and/or Services and Key Performance Indicators); |
60
"Know-How" | means all ideas, concepts, schemes, information, knowledge, techniques, methodology, and anything else in the nature of know-how relating to the Goods and/or Services but excluding know-how already in the other Party's possession before the Framework Commencement Date; |
"KPI Target" | means the acceptable performance level for a KPI as set out in relation to each KPI; |
"Law" | means any law, subordinate legislation within the meaning of Section 21(1) of the Interpretation Xxx 0000, bye-law, enforceable right within the meaning of Section 2 of the Xxxxxxxx Xxxxxxxxxxx Xxx 0000, regulation, order, regulatory policy, mandatory guidance or code of practice, judgment of a relevant court of law, or directives or requirements with which the Supplier is bound to comply, including but not limited to the Funding Rules; |
"Legacy Goods and/or Services" | means goods and/or services similar to the New Goods and/or Services and/or goods and/or services which interface with or are intended to interface with or be replaced by the New Goods and/or Services; |
"Losses" | means all losses, liabilities, damages, costs, expenses (including legal fees), disbursements, costs of investigation, litigation, settlement, judgment, interest and penalties whether arising in contract, tort (including negligence), breach of statutory duty, misrepresentation on otherwise and “Loss” shall be interpreted accordingly; |
"Lot" | means the number of lots specified in Framework Schedule 2 (Goods and/or Services and Key Performance Indicators) and "Lots" shall be construed accordingly;] |
“Man Day” | means 7.5 Man Hours, whether or not such hours are worked consecutively and whether or not they are worked on the same day; |
"Man Hours" | means the hours spent by the Supplier Personnel properly working on the provision of the Goods and/or Services including time spent travelling (other than to and from the Supplier's offices, or to and from the Sites) but excluding lunch breaks; |
"Management Charge" | means the sum payable by the Supplier to the Authority being 1 per cent (1%) of all Charges (net of VAT) paid to the Supplier in each Month throughout the Framework Period and thereafter until the expiry or earlier termination of the all Call Off Contracts entered into pursuant to this Framework Agreement. |
"Management Information" or “MI” | means the management information specified in Framework Schedule 9 (Management Information); |
61
"MI Default" | has the meaning given to it in paragraph 6.1 of Framework Schedule 9 (Management Information); |
"MI Failure" | means when an MI report: a) contains any material errors or material omissions or a missing mandatory field; or b) is submitted using an incorrect MI reporting Template; or c) is not submitted by the reporting date(including where a Nil Return should have been filed); |
"MI Report" | means a report containing Management Information submitted to the Authority in accordance with Framework Schedule 9 (Management Information); |
"MI Reporting Template" | means the form of report set out in the Annex to Framework Schedule 9 (Management Information) setting out the information the Supplier is required to supply to the Authority; |
"Ministry of Justice Code" | means the Ministry of Justice's Code of Practice on the Discharge of the Functions of Public Authorities under Part 1 of the Freedom of Information Xxx 0000 as amended from time to time; |
"MISO" | means 'Management Information System Online'. An online portal located at xxxxx://xxxx.xxx.xxxxxxxxxxxxx.xxx.xx provided by the Authority for collection and receipt of Management Information; |
"Month" | means a calendar month and "Monthly" shall be interpreted accordingly; |
"New Goods and/or Services" | means goods and/or services which CSL wishes to procure from a third party which are the same or similar to the Goods and/or Services; |
"Nil Return" | has the meaning given to it in paragraph 3.3 of Framework Schedule 9 (Management Information); |
"Occasion of Tax Non –Compliance" | means where: a) any tax return of the Supplier submitted to a Relevant Tax Authority on or after 1 October 2012 which is found on or after 1 April 2013 to be incorrect as a result of: i) a Relevant Tax Authority successfully challenging the Supplier under the General Anti-Abuse Rule or the Halifax abuse principle or under any tax rules or legislation in any jurisdiction that have an effect equivalent or similar to the General Anti-Abuse Rule or the Halifax abuse principle; ii) the failure of an avoidance scheme which the Supplier was involved in, and which was, or should have been, |
62
notified to a Relevant Tax Authority under the DOTAS or any equivalent or similar regime in any jurisdiction; and/or b) any tax return of the Supplier submitted to a Relevant Tax Authority on or after 1 October 2012 which gives rise, on or after 1 April 2013, to a criminal conviction in any jurisdiction for tax related offences which is not spent at the Framework Commencement Date or to a civil penalty for fraud or evasion; | |
"OJEU Notice" | has the meaning given to it in Recital A to this Framework Agreement; |
"Open Book Data" | means complete and accurate financial and non-financial information which is sufficient to enable the Authority to verify the Charges already paid or payable and Charges forecast to be paid during the Framework Period and term of any Call Off Contracts, including details and all assumptions relating to: a) the Supplier’s Costs broken down against each Good and/or Service and/or deliverable, including actual capital expenditure (including capital replacement costs) and the unit cost and total actual costs of all goods and/or services; b) operating expenditure relating to the provision of the Goods and/or Services including an analysis showing: i) the unit costs and quantity of Goods and any other consumables and bought-in goods and services; ii) manpower resources broken down into the number and grade/role of all Supplier Personnel (free of any contingency) together with a list of agreed rates against each manpower grade; iii) a list of Costs underpinning those rates for each manpower grade, being the agreed rate less the Supplier Profit Margin; and c) Overheads; d) all interest, expenses and any other third party financing costs incurred in relation to the provision of the Services; e) the Supplier Profit achieved over the Framework Period and term of any Call Off Contracts and on an annual basis; f) confirmation that all methods of Cost apportionment and Overhead allocation are consistent with and not more onerous than such methods applied generally by the Supplier; g) an explanation of the type and value of risk and contingencies associated with the provision of the Goods |
63
and/or Services, including the amount of money attributed to each risk and/or contingency; and h) the actual Costs profile for each Service Period under any Call Off Contracts; | |
"Order" | means an order for the provision of the Goods and/or Services placed by a Contracting Authority with the Supplier under a Call Off Contract; |
"Other Contracting Authorities" | means the bodies listed in the OJEU Notice except the Authority and “Other Contracting Authority” shall be construed accordingly; |
"Overhead" | means those amounts which are intended to recover a proportion of the Supplier’s or the Key Sub-Contractor’s (as the context requires) indirect corporate costs (including financing, marketing, advertising, research and development and insurance costs and any fines or penalties) but excluding allowable indirect costs apportioned to facilities and administration in the provision of Supplier Personnel and accordingly included within limb (a) of the definition of “Costs”; |
"Party" | means the Authority or the Supplier and "Parties" shall mean both of them; |
"Personal Data" | has the meaning given to it in the Data Protection Act 1998 as amended from time to time; |
"Processing" | has the meaning given to it in the Data Protection Legislation but, for the purposes of this Framework Agreement, it shall include both manual and automatic processing and “Process” and “Processed” shall be interpreted accordingly; |
"Prohibited Act" | means any of the following: a) to directly or indirectly offer, promise or give any person working for or engaged by a Contracting Authority or any other public body a financial or other advantage to: i) induce that person to perform improperly a relevant function or activity; or ii) reward that person for improper performance of a relevant function or activity; b) to directly or indirectly request, agree to receive or accept any financial or other advantage as an inducement or a reward for improper performance of a relevant function or activity in connection with this Agreement; or c) committing any offence: |
64
i) under the Xxxxxxx Xxx 0000 (or any legislation repealed or revoked by such Act); or ii) under legislation or common law concerning fraudulent acts; or iii) defrauding, attempting to defraud or conspiring to defraud a Contracting Authority or other public body; or iv) any activity, practice or conduct which would constitute one of the offences listed under (c) above if such activity, practice or conduct had been carried out in the UK; | |
“Recipient” | mean the Party which receives or obtains directly or indirectly Confidential Information from the Disclosing Party; |
“Register of Apprenticeship Training Providers” | means the register of apprenticeship training providers established by the ESFA; |
"Regulations" | means the Public Contracts Regulations 2015 and/or the Public Contracts (Scotland) Regulations 2012 (as the context requires) as amended from time to time; |
"Relevant Person" | means any employee, agent, servant, or representative of the Authority, or of any Other Contracting Authority or other public body; |
"Relevant Requirements" | means all applicable Law relating to bribery, corruption and fraud, including the Xxxxxxx Xxx 0000 and any guidance issued by the Secretary of State for Justice pursuant to section 9 of the Xxxxxxx Xxx 0000; |
"Relevant Tax Authority" | means HMRC, or, if applicable, the tax authority in the jurisdiction in which the Supplier is established; |
"Relevant Supplier" | means a third party bidding to provide New Goods and/or Services; |
"Replacement Goods and/or Services" | means any goods and/or services which are substantially similar to any of the Goods and/or Services and which are received in substitution for the Goods and/or Services following the expiry or termination of this Framework Agreement; |
"Replacement Supplier" | means any third party provider of Replacement Goods and/or Services appointed by or at the direction of the Authority from time to time; |
"Reporting Date" | means the 7th day of each Month following the Month to which the relevant Management Information relates, or such other date as may be agreed between the Parties; |
65
"Request for Information" | means a request for information relating to this Framework Agreement or the provision of the Goods and/or Services or an apparent request for such information under the FOIA or the EIRs; |
"Restricted Countries" | means a country outside the European Economic Area or any country which is not determined to be adequate by the European Commission pursuant to Article 25(6) of Directive 95/46/EC; |
"Self Audit Certificate" | means the certificate in the form as set out in Framework Schedule 10 (Annual Self Audit Certificate) to be provided to the Authority in accordance with Clause 18 (Records, Audit Access and Open Book Data); |
"Service Period" | has the meaning given to it in Framework Schedule 4 (Template Order Form and Template Call Off Terms) as refined by CSL in a Call Off Contract between CSL and the Supplier; |
“Service Recipient” | means any Other Contracting Authority and the Authority with which CSL has an arrangement with in respect of learning and development requirements from time to time; |
"Services" | means the services described in Framework Schedule 2 (Goods and/or Services and Key Performance Indicators) which the Supplier shall make available to the Service Recipients; |
"Specific Change in Law" | means a Change in Law that relates specifically to the business of the Authority and which would not affect a Comparable Supply; |
"Standards" | means: a) any standards published by BSI British Standards, the National Standards Body of the United Kingdom, the International Organisation for Standardisation or other reputable or equivalent bodies (and their successor bodies) that a skilled and experienced operator in the same type of industry or business sector as the Supplier would reasonably and ordinarily be expected to comply with; b) any standards detailed in the specification in Framework Schedule 2 (Goods and/or Services and Key Performance Indicators); c) any standards detailed by CSL in a Call Off Contract; d) any relevant Government codes of practice and guidance applicable from time to time. |
"Statement of Requirements" | means a statement issued by CSL detailing its Goods and/or Services Requirements issued in accordance with the Call Off Procedure; |
"Sub-Contract" | means any contract or agreement (or proposed contract or agreement) to which a third party: |
66
(a) provides the Goods and/or Services (or any part of them); (b) provides facilities or services necessary for the provision of the Goods and/or Services (or any part of them); and/or (c) is responsible for the management, direction or control of the provision of the Goods and/or Services (or any part of them); | |
"Sub-Contractor" | means any person other than the Supplier who is a party to a Sub- Contract and the servants or agents of that person; |
"Supplier" | means the person, firm or company stated in the preamble to this Framework Agreement; |
"Supplier Action Plan" | means a document, maintained by the Authority, capturing information about the relationship between the Parties including, but not limited to strategic objectives, actions, initiatives, communication channels, risks and supplier performance; |
"Supplier Personnel" | means all directors, officers, employees, agents, consultants and contractors of the Supplier and/or of any Sub-Contractor engaged in the performance of its obligations under this Framework Agreement or any Call Off Contracts; |
"Supplier Profit" | means, in relation to a period, the difference between the total Charges (in nominal cash flow terms but excluding any Deductions (as defined in Call Off Schedule 1 (Definitions)) and total Costs (in nominal cash flow terms) in respect of any Call Off Contracts for the relevant period; |
"Supplier Profit Margin" | means, in relation to a period, the Supplier Profit for the relevant period divided by the total Charges over the same period in respect of any Call Off Contracts and expressed as a percentage; |
"Supplier Representative" | means the representative appointed by the Supplier from time to time in relation to this Framework Agreement; |
"Supplier's Confidential Information" | means any information, however it is conveyed, that relates to the business, affairs, developments, trade secrets, Know-How, personnel and suppliers of the Supplier, including IPRs, together with information derived from the above, and any other information clearly designated as being confidential (whether or not it is marked as "confidential") or which ought reasonably to be considered to be confidential; |
"Template Call Off Terms" | means the template terms and conditions in Annex 2 to Framework Schedule 4 (Template Order Form and Template Call Off terms); |
"Template Order Form" | means the template form in Annex 1 to Framework Schedule 4 (Template Order Form and Template Call Off terms); |
67
"Tender" | means the tender submitted by the Supplier to the Authority, a copy of which is annexed or referred to in Framework Schedule 21 (Tender); |
"Termination Notice" | means a written notice of termination given by one Party to the other, notifying the Party receiving the notice of the intention of the Party giving the notice to terminate this Agreement on a specified date and setting out the grounds for termination; |
“Transparency Reports” | means the information relating to the Services and performance of this Framework Agreement which the Supplier is required to provide to the Authority in accordance with the reporting requirements in Framework Schedule 22; |
"TUPE" | means the Transfer of Undertakings (Protection of Employment) Regulations 2006 (SI 2006/246) as amended or replaced or any other regulations or UK legislation implementing the Acquired Rights Directive; |
"Variation" | has the meaning given to it in Clause 19.1.1 (Variation Procedure); |
"Variation Form" | means the form that will be completed and signed by the Parties to effect a Variation which shall be in the form set out in Framework Schedule 19 (Variation Form); |
"Variation Procedure" | means the procedure for carrying out a Variation as set out in Clause 19.1 (Variation Procedure); |
"VAT" | means value added tax in accordance with the provisions of the Value Added Tax Xxx 0000; |
"Working Days" | means any day other than a Saturday, Sunday or public holiday in England and Wales. |
FRAMEWORK SCHEDULE 2: GOODS AND/OR SERVICES AND KEY PERFORMANCE INDICATORS
PART A – GOODS AND/OR SERVICES
1. GENERAL
1.1 The purpose of this Part A of Framework Schedule 2 (Goods and/or Services and Key Performance Indicators) is to lay down the characteristics of the Goods and/or Services that the Supplier will be required to make available to CSL and its Service Recipients under this Framework Agreement (including, if applicable, in each Lot) together with any specific Standards applicable to the Goods and/or Services.
1.2 The Goods and/or Services and any Standards set out in paragraph 2.2 below may be refined (to the extent permitted and set out in Framework Schedule 5 (Call Off Procedure)) by CSL to reflect its Goods and/or Services Requirements for entering a particular Call Off Contract.
2. SPECIFICATION
2.1 Summary
2.1.1 The Supplier may be required to provide services in relation to the supply of the Goods and/or Services to CSL and the Service Recipients including but not limited to:
Taking orders for the Goods and/or Services from CSL and the Service Recipients in respect of the relevant Lot(s);
(a) Conforming to the Funding Rules and Charging Structure;
(b) Undertaking any billing requirements for Additional Services;
(c) Undertaking to meet all CSL’s and the Service Recipient’s requirements;
(d) Providing a support function to deal with CSL’s and the Service Recipient’s enquiries and issues;
(e) Complying with any KPIs and any service levels and any reporting requirements;
(f) Providing a dedicated account manager to manage the relationship between the Authority and the Supplier under this Framework Agreement, to resolve any issues arising from this Framework Agreement and to implement any improvements/innovations during the Framework Period;
(g) Complying with the Authority’s Management Information requirements.
2.2 Goods and/or Services
2.2.1 The Goods and/or Services covered are divided into the following Lots]:
LOT | DESCRIPTION |
Lot 1a | Leadership and Management for CSL |
Lot 1b | Leadership and Management for all Contracting Authorities |
Lot 2a | Project Management for CSL |
Lot 2b | Project Management for all Contracting Authorities |
Xxx 0x | Xxxxxxxxxxx Xxxxxxxx for CSL |
Lot 3b | Operational Delivery for all Contracting Authorities |
Lot 4a | Human Resources for CSL |
Lot 4b | Human Resources for all Contracting Authorities |
Lot 5a | Finance and Tax for CSL |
Lot 5b | Finance and Tax for all Contracting Authorities |
Lot 6a | Higher Level Digital for XXX |
Xxx 0x | Xxxxxx Xxxxx Digital for all Contracting Authorities |
Lot 7a | Digital for CSL |
Lot 7b | Digital for all Contracting Authorities |
Lot 8a | Customer Service for CSL |
Lot 8b | Customer Service for all Contracting Authorities |
Xxx 0x | Xxxxxxxxxx xxx XXX |
Xxx 0x | Xxxxxxxxxx for all Contracting Authorities |
Xxx 00x | Xxxxxx Xxxxx Xxxxxxxxxx and Management for CSL |
Xxx 00x | Xxxxxx Xxxxx Xxxxxxxxxx and Management for all Contracting Authorities |
Lot 11a | Business and Administration for CSL |
Lot 11b | Business and Administration for all Contracting Authorities |
Lot 12b | Property for all Contracting Authorities |
2.2.2 The scope of each Lot will include the Apprenticeship Standards and SASE Frameworks as listed in Framework Agreement Schedule 2: Part A: Goods and Services Attachment 4a and any other Apprenticeship Standards that are
approved for delivery and published, providing they fall within the broad heading of each relevant Lot.
2.3 Additional Services
2.3.1 The Supplier shall be flexible in providing relevant additional services that fall within the broad scope of the Framework Agreement and which Contracting Authorities may require to deliver their apprenticeships schemes from time to time.
2.3.2 The additional services shall not be limited to:
(a) Enrolment, induction, prior assessment, initial diagnostic testing or similar activity.
(b) Off-the-job training delivered only by distance learning, although you can include online and other blended learning activity as part of the delivery of an apprenticeship.
(c) Any training, optional modules, educational trips or trips to professional events in excess of those required to achieve the apprenticeship framework or meet the knowledge, skills and behaviours of the apprenticeship standard. This includes training solely and specifically required for a licence to practice.
(d) Registration and examination (including certification) costs associated with a licence to practise. This applies even where a licence is specified in the apprenticeship standard and assessment plan.
(e) Registration and examination, including certification costs, for non- mandatory qualifications (qualifications that are not specifically listed in the standard).
(f) At such time as a Contracting Authority places a Call Off Contract the precise details of any additional service(s) required will be specified in the ensuing order(s) and associated costs agreed.
2.3.3 At such time as a Contracting Authority places a Call Off Contract the precise details of any additional service(s) required will be specified in the ensuing order(s) and associated costs agreed.
2.4 Procurement specific Standards
2.4.1 The Supplier shall at all times during the Framework Period and the term of any Call Off Contract comply with the Standards including but not limited to the following:
Service Management Standards
BS EN ISO 9001 “Quality Management System” standard or equivalent.
ISO 10007 “Quality management systems – Guidelines for configuration management”.
BS25999-1:2006 “Code of Practice for Business Continuity Management” and, ISO/IEC 27031:2011, ISO 22301 and ISO/IEC 24762:2008 in the provision ITSC/DR plans
(b) Environmental Standards
BS EN ISO 14001 Environmental Management System standard or equivalent.
(c) Information Security Management Standards
ISO 27001 Information Security Management standard or equivalent.
Cyber Essentials Scheme
Framework Schedule 23 (Security Management)
PART B – KEY PERFORMANCE INDICATORS
1. GENERAL
1.2 The Supplier shall comply with all its obligations related to KPIs set out in this Framework Agreement including Framework Schedule 8 (Framework Management) and shall use all reasonable endeavours to meet the KPI Targets identified in the table below.
1.3 The KPIs from which performance by the Supplier of this Framework Agreement will be reported against are set out below:
[Guidance Note: The KPI targets in the table below including any applicable KPI weightings and scoring methodology will be set out in the Supplier Action Plan – see Framework Schedule 8 (Framework Management)]
Key Performance Indicator (KPI) | KPI Target | Measured by |
1. FRAMEWORK MANAGEMENT | ||
1.1 MI returns: All MI returns to be returned to CCS by the 5th Working Day of each month | 100% | Confirmation of receipt and time of receipt by the |
Authority (as | ||
evidenced within the | ||
Authority’s data | ||
warehouse (MISO) | ||
system) | ||
1.2 All undisputed invoices to be paid within | Confirmation of | |
30 calendar days of issue | 100% | receipt and time of |
receipt by the | ||
Authority (as | ||
evidenced within the | ||
Authority’s CODA | ||
system) | ||
1.3 Supplier self-audit certificate to be issued | Confirmation of | |
to the Authority in accordance with the | 100% | receipt and time of |
Framework Agreement | receipt by the | |
Authority |
1.4 Actions identified in an Audit Report to be delivered by the dates set out in the Audit Report | 100% | Confirmation by the Authority of completion of the actions by the dates identified in the Audit Report |
2. OPERATIONAL EFFICIENCY | ||
2.1 The Supplier to deliver against the Supplier Action Plan to derive operational efficiencies over the Framework Period via continuous improvement and innovation | Confirmation by the Authority of the value for money achieved by the dates identified in the Supplier Action Plan | |
3. CUSTOMER SATISFACTION | ||
3.1 Goods and/or Services to be provided under Call Off Contracts to the satisfaction of the Authority (where applicable) or CSL | 95% | Confirmation by the Authority of the Supplier’s performance against customer satisfaction surveys |
4. QUALITY SERVICE | ||
4.1 The performance to Service Levels of which the parties have agreed to measure | As per timings agreed in Appendix to Part A Schedule 6 of the Call Off | Taken from the Performance Monitoring Reports as outlined in Schedule 6 Part B of the Call Off |
4.2 Complaints resolved in line with the agreed Service Levels in Appendix to Part A Schedule 6 of the Call Off | 100 % within 10 working days | Taken from the Performance Monitoring Reports as outlined in Schedule 6 Part B of the Call Off |
74
FRAMEWORK SCHEDULE 3: FRAMEWORK PRICES AND CHARGING
STRUCTURE
1. NOT USED
2. GENERAL PROVISIONS
2.2 The Supplier acknowledges and agrees that, subject to paragraph 6 of this Framework Schedule 3 (Adjustment of the Framework Prices), the Framework Prices cannot be increased during the Framework Period.
3. PRICING MECHANISM FOR THE CALCULATION OF FRAMEWORK PRICES
3.1 Framework Prices shall be calculated using the pricing mechanism specified in Annex 1 to this Framework Schedule 3 and on the basis of the rates and prices specified in Annex 2 to this Framework Schedule 3, as more particularly set out in this Framework Schedule 3.
3.2 Table 1 of Annex 1 sets out which pricing mechanism shall be used to calculate each Framework Price, which shall be one or more of the following:
3.2.1 “Time and Materials”, in which case the provisions of Paragraph 3.3 shall apply;
3.2.2 “Fixed Price” in which case the provisions of Paragraph 3.4 shall apply; or
3.2.3 “Volume Based” pricing, in which case the provisions of Paragraph 3.5 shall apply.
3.3.1 Where Table 1 of Annex 1 indicates that a Framework Price (as applicable) is to be calculated by reference to a Time and Materials pricing mechanism, the day rates set out in Table 1 of Annex 2 shall be used to calculate the relevant Framework Prices, provided that the Supplier (or its Sub-Contractor) shall not be entitled to include any uplift for risks or contingencies within its day rates.
3.4 Fixed Price Framework Prices
3.4.1 Where Table 1 of Annex 1 indicates that a Framework Price is to be calculated by reference to a Fixed Price pricing mechanism, the relevant Framework Price shall be the amount set out against that Framework Price in Table 2 of Annex 2.
3.5 Volume Based Framework Prices
3.5.1 Where Table 1 of Annex 1 indicates that a Framework Price is to be calculated by reference to a Volume Based pricing mechanism, the relevant Framework Price shall be calculated on the basis of the unit costs set out against that Framework Price in Table 3 of Annex 2.
4. COSTS AND EXPENSES
4.1 The Framework Prices shall include all costs and expenses relating to the Goods and/or Services provided to CSL and/or the Supplier’s performance of its obligations under any Call Off
Contracts and no further amounts shall be payable by CSL to the Supplier in respect of such performance, including in respect of matters such as:
4.1.1 any incidental expenses that the Supplier incurs, including travel, subsistence and lodging, document or report reproduction, shipping, desktop or office equipment costs required by the Supplier Personnel, network or data interchange costs or other telecommunications charges; or
4.1.2 any amount for any services provided or costs incurred by the Supplier prior to the commencement date of any Call Off Contract.
5. NOT USED
6. ADJUSTMENT OF THE FRAMEWORK PRICES
6.1 The Framework Prices shall only be varied:
6.1.1 due to a Specific Change in Law in relation to which the Parties agree that a change is required to all or part of the Framework Prices in accordance with Clause 19.2 of this Framework Agreement (Legislative Change);
6.2 Subject to paragraphs 6.1.1 to 6.1.3 of this Framework Schedule, the Framework Prices will remain fixed for the first one (1) Contract Year.
7. SUPPLIER PERIODIC ASSESSMENT OF FRAMEWORK PRICES
7.2 Such assessments by the Supplier under paragraph 7.1 shall be carried out on 1 May and 1 December in each Contract Year (or in the event that such dates do not, in any Contract Year, fall on a Working Day, on the next Working Day following such dates). To the extent that the Supplier is able to decrease all or part of the Framework Prices it shall promptly notify the Authority in writing and such reduction shall be implemented in accordance with paragraph
10.1.3 below.
8. NOT USED
9. NOT USED
10. IMPLEMENTATION OF ADJUSTED FRAMEWORK PRICES
10.1 Variations in accordance with the provisions of this Framework Schedule 3 to all or part the Framework Prices (as the case may be) shall be made by the Authority to take effect:
10.1.1 in accordance with Clause 19.2 (Legislative Change) where an adjustment to the Framework Prices is made in accordance with paragraph 6.1.1 of this Framework Schedule;
10.1.2 in accordance with paragraph 3.3.3 and 4.8 of Framework Schedule 12 (Continuous Improvement and Benchmarking) where an adjustment to the Framework Prices is made in accordance with paragraph 6.1.2 of this Framework Schedule 3; or
10.1.3 on 1 June for assessments made on 1 May and on 1 January for assessments made on 1 December where an adjustment to the Framework Prices is made in accordance with paragraph 6.1.3 of this Framework Schedule 3 ; or
and the Parties shall amend the Framework Prices shown in Annex 3 to this Framework Schedule 3 to reflect such variations.
11. CHARGES UNDER CALL OFF AGREEMENTS
11.1 For the avoidance of doubt any change to the Framework Prices implemented pursuant to this Framework Schedule 3 are made independently of, and, subject always to paragraphs 2.1 and Error! Reference source not found. of this Framework Schedule 3 and shall not affect the Charges payable by CSL under a Call Off Contract in force at the time a change to the Framework Prices is implemented.
11.2 Any variation to the Charges payable under a Call Off Contract must be agreed between the Supplier and CSL and implemented in accordance with the provisions applicable to the Call Off Contract.
12. E-COMMERCE TRANSACTIONS WITH CENTRAL GOVERNMENT BODIES
strategy) endorses a commitment to implement e-commerce systems, including, for example, purchase-to-pay (P2P) automated systems, as the preferred transacting model for all Government’s purchasing transactions. The intent is to migrate, wherever practically possible, all Government’s purchasing to an e-commerce environment.
12.2. The Supplier acknowledges and agrees that when contracting with Central Government Bodies, the latter may use a specific e-commerce application and the Supplier shall be required to comply with the relevant requirements set out by the relevant Central Government Body in their Statement of Requirements and/or terms of the relevant Call Off Contract.
ANNEX 1: PRICING MECHANISM TABLE 1
Framework Price Number | Pricing Mechanism (T&M/ VOL/ FIX) |
Apprenticeship Training and Related Services | Fixed |
TABLE 2: FIXED PRICE FRAMEWORK PRICES
[Guidance Note: Prior to the commencement of the Framework Agreement, the Authority will populate this table with the relevant information from the Supplier’s tendered prices in the Tender if a Fixed Price pricing mechanism has been used]
Framework Price | Fixed Framework Price (£) |
[e.g. M3] | |
[e.g. SC3] | |
[e.g. OSC1] |
[Guidance Note: Prior to the commencement of the Framework Agreement, the Authority will incorporate here, the Supplier’s tendered Framework Prices including any discounts. Where a Fixed Price only pricing mechanism has been used, the Authority may cross refer to the information to be populated in Table 2 of Annex 2]
FRAMEWORK SCHEDULE 4: TEMPLATE ORDER FORM AND TEMPLATE CALL
OFF TERMS
ANNEX 2: TEMPLATE CALL OFF TERMS
FRAMEWORK SCHEDULE 5: CALL OFF PROCEDURE
1. AWARD PROCEDURE
1.1 If CSL decides to source the Goods and/or Services through this Framework Agreement then it will award its Goods and/or Services Requirements in accordance with the procedure in this Framework Schedule 5 (Call Off Procedure) and the requirements of the Regulations and the Guidance. For the purposes of this Framework Schedule 5, “Guidance” shall mean any guidance issued or updated by the UK Government from time to time in relation to the Regulations.
1.2 The Supplier shall be fully responsible for all its costs arising from this Framework Schedule 5. The Supplier acknowledges and agrees that in no event shall CSL have any liability for such costs, in whole or in part, at any time and even where CSL decide not to appoint the Supplier for any reason including but not limited to the circumstances set out in paragraph 5 below.
1.3 If CSL can determine that:
1.3.1 its Goods and/or Services Requirements can be met by the Framework Suppliers’ catalogues and description of the Goods and/or Services as set out in Framework Schedule 2 (Goods and/or Services and Key Performance Indicators); and
1.3.2 all of the terms of the proposed Call Off Contract are laid down in this Framework Agreement and the Template Call Off Terms do not require amendment or any supplementary terms and conditions (other than the inclusion of optional provisions already provided for in the Template Call Off Terms);
then CSL may award a Call Off Contract in accordance with the procedure set out in paragraph 2 below.
2. DIRECT ORDERING
2.1 Subject to paragraph 1.3 above when awarding a Call Off Contract under this Framework Agreement CSL shall develop a clear Statement of Requirements and award the Call Off Contract to the Supplier in accordance with paragraph 7 below.
3. NOT USED
4. NOT USED
5. NO AWARD
5.1 Notwithstanding the fact that the Contracting Authority has followed a procedure as set out above in paragraph 2, the Contracting Authority shall be entitled at all times to decline to make an award for its Goods and/or Services Requirements. Nothing in this Framework Agreement shall oblige CSL to award any Call Off Contract.
6. RESPONSIBILITY FOR AWARDS
6.1 The Supplier acknowledges that CSL is independently responsible for the conduct of its award of Call Off Contracts under this Framework Agreement and that the Authority is not responsible or accountable for and shall have no liability whatsoever in relation to:
6.1.1 the conduct of CSL in relation to this Framework Agreement; or
6.1.2 the performance or non-performance of any Call Off Contracts between the Supplier and CSL entered into pursuant to this Framework Agreement,
7. CALL OFF AWARD PROCEDURE
7.1 Subject to paragraphs 1 to 6 above, CSL may award a Call Off Contract to the Supplier by sending (including electronically) a signed Call Off Contract (as may be amended or refined by CSL in accordance with paragraph Error! Reference source not found. above).
7.2 The Parties agree that any document or communication (including any document or communication in the apparent form of a Call Off Contract) which is not as described in this paragraph 7 shall not constitute a Call Off Contract under this Framework Agreement.
7.3 On receipt of the Call Off Contract as described in paragraph 7.1 from CSL the Supplier shall accept the Call Off Contract by promptly signing and returning (including by electronic means) a copy of the completed Template Order Form to CSL (as appropriate).
7.4 On receipt of the signed order form from the Supplier, CSL shall send (including by electronic means) a written notice of receipt to the Supplier within two (2) Working Days and a Call Off Contract shall be formed.
7.5 Once the Call Off Contract has been formed CSL or its Service Recipients are permitted to request specific services in accordance with the terms of the clause 8 of the Call Off Contract.
FRAMEWORK SCHEDULE 6: NOT USED
FRAMEWORK SCHEDULE 7: KEY SUB-CONTRACTORS
1. In accordance with Clause 25.1 (Appointment of Key Sub-Contractors), the Supplier is entitled to sub-contract its obligations under this Framework Agreement and any Call Off Contracts entered into pursuant to this Framework Agreement, to the Key Sub- Contractors listed below.
[Guidance Note: the list of Key Sub-Contractors as approved by CCS should be inserted here]
1. INTRODUCTION
FRAMEWORK SCHEDULE 8: FRAMEWORK MANAGEMENT
1.1 The following definitions shall apply in addition to the definitions contained in the Framework Schedule 1 (Definitions):
"Supplier Framework Manager" | has the meaning given to it in paragraph 2.1.1 of this Framework Schedule 8; and |
"Supplier Review Meetings" | has the meaning given to it in paragraph 2.2.1. of this Framework Schedule 8. |
1.2 The successful delivery of this Framework Agreement will rely on the ability of the Supplier and the Authority in developing a strategic relationship immediately following the conclusion of this Framework Agreement with the Supplier and maintaining this relationship throughout the Framework Period.
1.3 To achieve this strategic relationship, there will be a requirement to adopt proactive framework management activities which will be informed by quality Management Information, and the sharing of information between the Supplier and the Authority.
1.4 This Framework Schedule 8 outlines the general structures and management activities that the Parties shall follow during the Framework Period.
2. FRAMEWORK MANAGEMENT
2.1 Framework Management Structure:
2.1.1 The Supplier shall provide a suitably qualified nominated contact (the “Supplier Framework Manager”) who will take overall responsibility for delivering the Goods and/or Services required within this Framework Agreement, as well as a suitably qualified deputy to act in their absence.
2.1.2 The Supplier shall put in place a structure to manage the Framework in accordance with Framework Schedule 2 (Goods and/or Services and Key Performance Indicators).
2.1.3 A full governance structure for the Framework will be agreed between the Parties during the Framework Agreement implementation stage.
2.1.4 Following discussions between the Parties following the Framework Commencement Date, the Authority shall produce and issue to the Supplier a draft Supplier Action Plan. The Supplier shall not unreasonably withhold its agreement to the draft Supplier Action Plan. The Supplier Action Plan shall, unless the Authority otherwise Approves, be agreed between the Parties and come into effect within two weeks from receipt by the Supplier of the draft Supplier Action Plan.
2.1.5 The Supplier Action Plan shall be maintained and updated on an ongoing basis by the Authority. Any changes to the Supplier Action Plan shall be notified by the Authority to the Supplier. The Supplier shall not unreasonably withhold its agreement to any changes to the Supplier Action Plan. Any such changes shall, unless the Authority otherwise Approves, be agreed between the Parties and
come into effect within two weeks from receipt by the Supplier of the Authority’s notification.
2.2 Supplier Review Meetings
2.2.1 Regular performance review meetings will take place at the Authority’s premises throughout the Framework Period and thereafter until the Framework Expiry Date (“Supplier Review Meetings”).
2.2.2 The exact timings and frequencies of such Supplier Review Meetings will be determined by the Authority following the conclusion of the Framework Agreement. It is anticipated that the frequency of the Supplier Review Meetings will be once every month or less. The Parties shall be flexible about the timings of these meetings.
2.2.3 The purpose of the Supplier Review Meetings will be to review the Supplier’s performance under this Framework Agreement and, where applicable, the Supplier’s adherence to the Supplier Action Plan. The agenda for each Supplier Review Meeting shall be set by the Authority and communicated to the Supplier in advance of that meeting.
2.2.4 The Supplier Review Meetings shall be attended, as a minimum, by the Authority Representative(s) and the Supplier Framework Manager.
[Guidance Note to bidders: for further information on Supplier Action Plans and Supplier’s management see the “Supplier Guidance on Supplier Management” published by the Authority at
xxxx://XXX.xxxxxxxxxxxxx.xxx.xx/xxxxx-xxxxxxxxxx-xxxxxxxxxxx-
service/operational-delivery/supplier-management]
3. KEY PERFORMANCE INDICATORS
3.1 The KPIs applicable to this Framework Agreement are set out in Framework Schedule 2 (Goods and/or Services and Key Performance Indicators).
3.2 The Supplier shall establish processes to monitor its performance against the agreed KPIs. The Supplier shall at all times ensure compliance with the standards set by the KPIs.
3.3 The Authority shall review progress against these KPIs to evaluate the effectiveness and efficiency of which the Supplier performs its obligations to fulfil this Framework Agreement.
3.4 The Supplier’s achievement of KPIs shall be reviewed during the Supplier Review Meetings, in accordance with paragraph 2.2 above, and the review and ongoing monitoring of KPIs will form a key part of the framework management process as outlined in this Framework Schedule 8.
3.5 The Authority reserves the right to adjust, introduce new, or remove KPIs throughout the Framework Period, however any significant changes to KPIs shall be agreed between the Authority and the Supplier.
3.6 The Authority reserves the right to use and publish the performance of the Supplier against the KPIs without restriction.
4. EFFICIENCY TRACKING PERFORMANCE MEASURES
4.1.1 tracking reductions in product costs, in order to demonstrate that Contracting Authorities are buying more smartly;
4.1.2 developing additional KPIs to ensure that the Framework Agreement supports the emerging target operating model across central government (particularly in line with centralised sourcing and category management, procurement delivery centres and payment processing systems and shared service centres).
4.2 The list in paragraph 4.1 is not exhaustive and may be developed during the Framework Period.
4.3 The metrics that are to be implemented to measure efficiency shall be developed and agreed between the Authority and the Supplier. Such metrics shall be incorporated into the list of KPIs set out in Framework Schedule 2 (Goods and/or Services and Key Performance Indicators).
4.4 The ongoing progress and development of the efficiency tracking performance measures shall be reported through framework management activities as outlined in this Framework Schedule 8.
5. ESCALATION PROCEDURE
5.1 In the event that the Authority and the Supplier are unable to agree the performance score for any KPI during a Supplier Review Meeting, the disputed score shall be recorded and the matter shall be referred to the Authority Representative and the Supplier Representative in order to determine the best course of action to resolve the matter (which may involve organising an ad-hoc meeting to discuss the performance issue specifically).
5.2 In cases where the Authority Representative and the Supplier Representative fail to reach a solution within a reasonable period of time, the matter shall be dealt with in accordance with the procedure set out in Clause 48 (Dispute Resolution).
FRAMEWORK SCHEDULE 9: MANAGEMENT INFORMATION
1. GENERAL REQUIREMENTS
1.1 The Supplier shall operate and maintain appropriate systems, processes and records to ensure that it can, at all times, deliver timely and accurate Management Information to the Authority in accordance with the provisions of this Framework Schedule 9.
1.2 The Supplier shall also supply such Management Information as may be required by a Contracting Authority in accordance with the terms of a Call Off Contract.
2. MANAGEMENT INFORMATION AND FORMAT
2.1 The Supplier agrees to provide timely, full, accurate and complete MI Reports to the Authority which incorporates the data, in the correct format, required by the MI Reporting Template. The initial MI Reporting Template is set out in the Annex to this Framework Schedule 9.
2.2 The Authority may from time to time make changes to the MI Reporting Template including to the data required or format of the report and issue a replacement version of the MI Reporting Template to the Supplier. The Authority shall give notice in writing of any such change to the MI Reporting Template and shall specify the date from which the replacement MI Reporting Template must be used for future MI Reports which date shall be at least thirty (30) calendar days following the date of the notice.
2.3 If the MI Reporting Template is amended by the Authority at any time, then the Supplier agrees to provide all future MI Reports in accordance with the most recent MI Reporting Template issued by the Authority.
2.4 The Authority may provide the Supplier with supplemental guidance for completing the MI Reporting Template or submitting MI Reports from time to time which may for example indicate which fields are mandatory and which are optional. The Supplier agrees to complete the Monthly MI Report in accordance with any such guidance.
2.5 The Supplier may not make any amendment to the current MI Reporting Template without the prior Approval of the Authority.
2.6 The Authority shall have the right from time to time (on reasonable written notice) to amend the nature of the Management Information which the Supplier is required to supply to the Authority.
3. FREQUENCY AND COVERAGE
3.1 All MI Reports must be completed by the Supplier using the MI Reporting Template and returned to the Authority on or prior to the Reporting Date every Month during the Framework Period and thereafter, until all transactions relating to Call Off Contracts have permanently ceased.
3.2 The MI Report should be used (among other things) to report Orders received and transactions occurring during the Month to which the MI Report relates, regardless of when the work was actually completed. For example, if an invoice is raised for October but the work was actually completed in September, the Supplier must report the invoice in October's MI Report and not September's. Each Order received by the Supplier must be reported only once when the Order is received.
89
3.3 The Supplier must return the MI Report for each Month even where there are no transactions to report in the relevant Month (a "Nil Return").
3.4 The Supplier must inform the Authority of any errors or corrections to the Management Information:
3.4.1 in the next MI Report due immediately following discovery of the error by the Supplier; or
3.4.2 as a result of the Authority querying any data contained in an MI Report.
4. SUBMISSION OF THE MONTHLY MI REPORT
4.2 The Authority reserves the right (acting reasonably) to specify that the MI Report be submitted by the Supplier using an alternative communication to that specified in paragraph 4.1 above such as email. The Supplier agrees to comply with any such instructions provided they do not materially increase the burden on the Supplier.
5. DEFECTIVE MANAGEMENT INFORMATION
5.1 The Supplier acknowledges that it is essential that the Authority receives timely and accurate Management Information pursuant to this Framework Agreement because Management Information is used by the Authority to inform strategic decision making and allows it to calculate the Management Charge where applicable.
5.2 Following an MI Failure the Authority may issue reminders to the Supplier or require the Supplier to rectify defects in the MI Report provided to the Authority. The Supplier shall rectify any deficient or incomplete MI Report as soon as possible and not more than five (5) Working Days following receipt of any such reminder.
Meetings
5.3 The Supplier agrees to attend meetings between the Parties in person to discuss the circumstances of any MI Failure(s) at the request of the Authority (without prejudice to any other rights the Authority may have). If the Authority requests such a meeting the Supplier shall propose measures to ensure that the MI Failures are rectified and do not occur in the future. The Parties shall document these measures and continue to monitor the Supplier's performance.
Admin Fees
5.4 If, in any rolling three (3) Month period, two (2) or more MI Failures occur, the Supplier acknowledges and agrees that the Authority shall have the right to invoice the Supplier Admin Fees and (subject to paragraph 5.5) in respect of any MI Failures as they arise in subsequent Months.
5.6 The Supplier acknowledges and agrees that the Admin Fees are a fair reflection of the additional costs incurred by the Authority as a result of the Supplier failing to supply Management Information as required by this Framework Agreement.
5.7 The Authority shall notify the Supplier if any Admin Fees arise pursuant to paragraph 5.4 above and shall be entitled to invoice the Supplier for such Admin Fees which shall be payable either separately or as a supplement to the Management Charge. Any exercise by the Authority of its rights under this paragraph 5.7 shall be without prejudice to any other rights that may arise pursuant to the terms of this Framework Agreement.
6. DEFAULT MANAGEMENT CHARGE
6.1 If:
6.1.1 Two (2) MI Failures occur in any rolling six (6) Month period; or
6.1.2 Two (2) consecutive MI Failures occur,
then a "MI Default" shall be deemed to have occurred.
6.3 The Default Management Charge shall be calculated as the higher of:
6.3.1 the average Management Charge paid or payable by the Supplier to the Authority based on any Management Information submitted in the six (6) Month period preceding the date on which the MI Default occurred or, if the MI Default occurred within less than six (6) Months from the commencement date of the first Call Off Contract, in the whole period preceding the date on which the MI Default occurred; or
6.3.2 the sum of five hundred pounds (£500).
6.4 If an MI Default occurs, the Authority shall be entitled to invoice the Supplier the Default Management Charge (less any Management Charge which the Supplier has already paid to the Authority in accordance with Clause 20 for any Months in which the Default Management Charge is payable) calculated in accordance with paragraph 6.3 above:
6.4.1 in arrears for those Months in which an MI Failure occurred; and
6.4.2 on an ongoing Monthly basis,
until all and any MI Failures have been rectified to the reasonable satisfaction of the Authority.
6.5 For the avoidance of doubt the Parties agree that:
6.5.1 the Default Management Charge shall be payable as though it was the Management Charge due in accordance with the provisions of Clause 20 of this Framework Agreement; and
6.5.2 any rights or remedies available to Authority under this Framework Agreement in respect of the payment of the Management Charge shall be available to the Authority also in respect of the payment of the Default Management Charge.
6.6 If the Supplier provides sufficient Management Information to rectify any MI Failures to the satisfaction of the Authority and the Management Information demonstrates that:
6.6.1 the Supplier has overpaid the Management Charges as a result of the application of the Default Management Charge then the Supplier shall be entitled to a refund of the overpayment, net of any Admin Fees where applicable; or
ANNEX 1: MI REPORTING TEMPLATE
[Guidance Note: This MI reporting template will be updated to include any category specific M.I. requirements which will be agreed with the Supplier on the award of the Framework Agreement
FRAMEWORK SCHEDULE 10: ANNUAL SELF AUDIT CERTIFICATE
[To be signed by Head of Internal Audit, Finance Director or company’s external auditor]
[Guidance Note: Please seek guidance from the CCS audit team in relation to this point]
Dear Sirs
In accordance with the Framework Agreement entered into on [insert Framework Commencement Date dd/mm/yyyy] between [insert name of Supplier] and the Authority, we confirm the following:
1. In our opinion based on the testing undertaken [name of Supplier] has in place suitable systems for identifying and recording the transactions taking place under the provisions of the above Framework Agreement.
2. We have tested the systems for identifying and reporting on framework activity and found them to be operating satisfactorily.
3. We have tested a sample of [ ] [insert number of sample transactions tested] Orders and related invoices during our audit for the financial year ended [insert financial year] and confirm that they are correct and in accordance with the terms and conditions of the Framework Agreement.
4. We have tested from the order processing and invoicing systems a sample of [ ] [Insert number of sample transactions tested] public sector orders placed outside the Framework Agreement during our audit for the financial year ended [insert financial year] and confirm they have been identified correctly as orders placed outside the Framework Agreement, an appropriate and legitimately tendered procurement route has been used to place those orders, and those orders should not otherwise have been routed via centralised and mandated procurement processes executed by the Authority.
5. We have also attached an Audit Report which provides details of the methodology applied to complete the review, the sampling techniques applied, details of any issues identified and remedial action taken.
[Guidance Note: see Clause 18 (Records, Audit Access and Open Book Data) for details of what is required]
Name:………………………………………………………
Signed:…………………………………………………….
Head of Internal Audit/ Finance Director/ External Audit firm (delete as applicable) Date:……………………………………………………….
Professional Qualification held by Signatory:............................................................
Note to Suppliers: where CCS identifies independently that data accuracy supporting this certificate is flawed we will consider action on a case by case basis, and in some cases where the issues identified are clearly systemic we will consider whether this behaviour goes beyond poor commercial practice and will seek further guidance from the GLD.
FRAMEWORK SCHEDULE 11: MARKETING
1. INTRODUCTION
1.1 This Framework Schedule 11 describes the activities that the Supplier will carry out as part of its ongoing commitment to the marketing of the Goods and/or Services to Other Contracting Authorities.
2. MARKETING
2.1 Marketing contact details:
2.1.1 [NAME]
2.1.2 [ADDRESS]
2.1.3 [Telephone and email]
3. AUTHORITY PUBLICATIONS
3.3 Failure to comply with the provisions of paragraphs 3.1 and 3.2 may result in the Supplier's exclusion from the use of such marketing materials.
4. SUPPLIER PUBLICATIONS
4.1 Any marketing materials in relation to this Framework Agreement that the Supplier produces must comply in all respects with the Branding Guidance. The Supplier will periodically update and revise such marketing materials.
4.2 The Supplier shall be responsible for keeping under review the content of any information which appears on the Supplier’s website and which relates to this Framework Agreement and ensuring that such information is kept up to date at all times.
FRAMEWORK SCHEDULE 12: CONTINUOUS IMPROVEMENT AND
BENCHMARKING
1. DEFINITIONS
1.1 In this Framework Schedule 12, the following expressions shall have the following meanings:
"Benchmarked Rates" | means the Framework Prices for the Benchmarked Goods and/or Services |
"Benchmark Review" | means a review of the Goods and/or Services carried out in accordance with this Framework Schedule 12 to determine whether those Goods and/or Services represent Good Value |
"Benchmarked Goods and/or Services" | means any Goods and/or Services included within the scope of a Benchmark Review pursuant to this Framework Schedule 12 |
"Comparable Rates" | means rates payable by the Comparison Group for Comparable Goods and/or Services that can be fairly compared with the Framework Prices |
"Comparable Supply" | means the supply of Goods and/or Services to another customer of the Supplier that are the same or similar to the Goods and/or Services |
"Comparable Goods and/or Services" | means Goods and/or Services that are identical or materially similar to the Benchmarked Goods and/or Services (including in terms of scope, specification, volume and quality of performance) provided that if no identical or materially similar Goods and/or Services exist in the market, the Supplier shall propose an approach for developing a comparable Goods and/or Services benchmark |
"Comparison Group" | means a sample group of organisations providing Comparable Goods and/or Services which consists of organisations which are either of similar size to the Supplier or which are similarly structured in terms of their business and their service offering so as to be fair comparators with the Supplier or which, are best practice organisations |
"Equivalent Data" | means data derived from an analysis of the Comparable Rates and/or the Comparable Goods and/or Services (as applicable) provided by the Comparison Group |
"Good Value" | means that the Benchmarked Rates are within the Upper Quartile |
"Upper Quartile" | means, in respect of Benchmarked Rates, that based on an analysis of Equivalent Data, the Benchmarked Rates, as compared to the range of prices for Comparable Goods and/or Services, are within the top 25% in terms of best |
value for money for the recipients of Comparable Goods and/or Services.
2. BACKGROUND
2.1 The Supplier acknowledges that the Authority wishes to ensure that the Goods and/or Services, represent value for money to the taxpayer throughout the Framework Period.
2.2 This Framework Schedule 12 (Continuous Improvement and Benchmarking) sets out the following processes to ensure this Framework Agreement represents value for money throughout the Framework Period and subsequently while any Call Off Contracts remain in force:
2.2.1 Benchmarking;
2.2.2 Continuous Improvement;
3. BENCHMARKING
3.1 Frequency Purpose and Scope of Benchmark Review
3.1.1 The Supplier shall carry out Benchmark Reviews of the Goods and/or Services when so requested by the Authority.
3.1.2 The Authority shall not be entitled to request a Benchmark Review during the first six (6) Month period from the Framework Commencement Date nor at intervals of less than twelve (12) Months after any previous Benchmark Review.
3.1.3 The purpose of a Benchmark Review will be to establish whether the Benchmarked Goods and/or Services are, individually and/or as a whole, Good Value.
3.1.4 The Goods and/or Services that are to be the Benchmarked Goods and/or Services will be identified by the Authority in writing.
3.2 Benchmarking Process
3.2.1 The Supplier shall produce and send to the Authority for Approval, a draft plan for the Benchmark Review.
(a) a proposed timetable for the Benchmark Review;
(b) a description of the benchmarking methodology to be used;
(c) a description that demonstrates objectively and transparently that the benchmarking methodology to be used is capable of fulfilling the benchmarking purpose; and
(d) a description of how the Supplier will scope and identify the Comparison Group.
The Authority may not unreasonably withhold or delay its Approval of the draft plan and any suggested amendments must be reasonable.
3.2.4 Where the Authority suggests amendments to the draft plan under paragraph 3.2.3, the Supplier must produce an amended draft plan. Paragraph 3.2.2 shall apply to any amended draft plan.
3.2.5 Once it has received the Approval of the draft plan, the Supplier shall:
(a) finalise the Comparison Group and collect data relating to Comparable Rates. The selection of the Comparable Rates (both in terms of number and identity) shall be a matter for the Supplier's professional judgment using:
market intelligence;
the Supplier's own data and experience; relevant published information; and
pursuant to paragraph 3.2.7 below, information from other suppliers or purchasers on Comparable Rates;
(b) by applying the adjustment factors listed in paragraph 3.2.7 and from an analysis of the Comparable Rates, derive the Equivalent Data;
(c) using the Equivalent Data to calculate the Upper Quartile;
(d) determine whether or not each Benchmarked Rate is, and/or the Benchmarked Rates as a whole are, Good Value.
3.2.6 The Supplier agrees to use its reasonable endeavours to obtain information from other suppliers or purchasers on Comparable Rates.
(a) the contractual terms and business environment under which the Comparable Rates are being provided (including the scale and geographical spread of the customers);
(b) exchange rates;
(c) any other factors reasonably identified by the Supplier, which, if not taken into consideration, could unfairly cause the Supplier's pricing to appear non-competitive.
3.3 Benchmarking Report:
3.3.1 For the purposes of this Framework Schedule 12 “Benchmarking Report” shall mean the report produced by the Supplier following the Benchmark Review and as further described in this Framework Schedule 12;
3.3.2 The Supplier shall prepare a Benchmarking Report and deliver it to the Authority, at the time specified in the plan Approved pursuant to paragraph