Download 130103 Redacted DCN Framework Agreement

DATED
03/01/13 Redacted Version
(1) GOVERNMENT PROCUREMENT SERVICE
- and (2) TNT UK LIMITED
MODEL SERVICES FRAMEWORK AGREEMENT
FOR
DEDICATED COURIER NETWORK SERVICES
AGREEMENT REF: RM 963
CONTENTS
1.
DEFINITIONS AND INTERPRETATION ................................................................... 2
2.
TERM OF FRAMEWORK AGREEMENT ................................................................ 13
3.
SCOPE OF FRAMEWORK AGREEMENT .............................................................. 13
4.
SUPPLIER'S APPOINTMENT ................................................................................. 13
5.
NON-EXCLUSIVITY ................................................................................................ 13
6.
ORDERING PROCEDURES ................................................................................... 13
7.
ASSISTANCE IN RELATED PROCUREMENTS ..................................................... 14
8.
WARRANTIES AND REPRESENTATIONS ............................................................ 15
9.
PREVENTION OF BRIBERY AND CORRUPTION.................................................. 17
10.
CONFLICTS OF INTEREST .................................................................................... 18
11.
SAFEGUARD AGAINST FRAUD ............................................................................ 19
12.
CALL-OFF AGREEMENT PERFORMANCE ........................................................... 19
13.
STATUTORY REQUIREMENTS AND STANDARDS .............................................. 20
14.
NON-DISCRIMINATION .......................................................................................... 20
15.
PROVISION OF MANAGEMENT INFORMATION................................................... 20
16.
MANAGEMENT CHARGE....................................................................................... 21
17.
RECORDS AND AUDIT ACCESS ........................................................................... 21
18.
CONTRACTING BODY SATISFACTION MONITORING......................................... 23
19.
CONFIDENTIALITY................................................................................................. 24
20.
TRANSPARENCY ................................................................................................... 26
21.
OFFICIAL SECRETS ACTS .................................................................................... 27
22.
DATA PROTECTION .............................................................................................. 27
23.
FREEDOM OF INFORMATION ............................................................................... 29
24.
PUBLICITY AND BRANDING .................................................................................. 30
25.
MARKETING ........................................................................................................... 30
26.
TERMINATION........................................................................................................ 31
27.
SUSPENSION OF SUPPLIER'S APPOINTMENT ................................................... 34
28.
CONSEQUENCES OF TERMINATION AND EXPIRY ............................................ 35
29.
LIABILITY ................................................................................................................ 36
30.
INSURANCE ........................................................................................................... 37
31.
TRANSFER AND SUB-CONTRACTING ................................................................. 38
32.
VARIATIONS TO THIS FRAMEWORK AGREEMENT ............................................ 39
33.
GUARANTEE (NOT APPLICABLE TO THIS FRAMEWORK AGREEMENT) .......... 40
34.
RIGHTS OF THIRD PARTIES ................................................................................. 41
35.
FORCE MAJEURE .................................................................................................. 41
36.
SEVERABILITY ....................................................................................................... 42
37.
WAIVER AND CUMULATIVE REMEDIES .............................................................. 42
38.
RELATIONSHIP OF THE PARTIES ........................................................................ 42
39.
FURTHER ASSURANCES ...................................................................................... 42
40.
ENTIRE AGREEMENT ............................................................................................ 43
41.
NOTICES ................................................................................................................ 43
42.
INTELLECTUAL PROPERTY RIGHTS AND INDEMNITY....................................... 44
43.
[MALICIOUS SOFTWARE....................................................................................... 46
44.
COMPLAINTS HANDLING AND RESOLUTION ..................................................... 46
45.
DISPUTE RESOLUTION ......................................................................................... 47
46.
FRAMEWORK AGREEMENT MANAGEMENT ....................................................... 48
47.
LAW AND JURISDICTION ...................................................................................... 48
48.
CONTRACT EXECUTION/SIGNATORIES .............................................................. 49
SCHEDULE 1: FRAMEWORK SERVICES ......................................................................... 50
Part 1:...................................................................................................................... 50
SCHEDULE 2: SUB-CONTRACTORS ................................................................................ 51
SCHEDULE 3: CHARGING STRUCTURE.......................................................................... 53
SCHEDULE 4: ORDER FORM & CALL OFF TERMS ......................................................... 54
Part 1: Order form ................................................................................................... 54
Part 2: Call off Term ................................................................................................ 54
SCHEDULE 5: ORDERING PROCEDURE ......................................................................... 55
SCHEDULE 6: AWARD CRITERIA ..................................................................................... 57
Part 1: Direct Award ................................................................................................ 57
Part 2: Further Competition Award Criteria .............................................................. 57
SCHEDULE 7: VALUE FOR MONEY ................................................................................. 58
SCHEDULE 8: MANAGEMENT INFORMATION REQUIREMENTSERROR! BOOKMARK NOT DEFINED.6
SCHEDULE 9: SELF-AUDIT CERTIFICATE ....................................................................... 76
SCHEDULE 10: MARKETING ............................................................................................ 74
SCHEDULE 11: GUARANTEE] .......................................................................................... 75
SCHEDULE 12: COMMERCIALLY SENSITIVE INFORMATION ........................................ 76
SCHEDULE 13: STANDARDS ............................................................................................ 77
SCHEDULE 14: FRAMEWORK MANAGEMENT ................................................................ 82
APPENDIX A: SUPPLIER'S TENDER RESPONSE..............................................................87
THIS AGREEMENT is made on (as executed on page 49)
BETWEEN:
(1)
THE MINISTER FOR THE CABINET OFFICE ("Cabinet Office") as represented by
Government Procurement Service formerly Buying Solutions, a trading fund of the
Cabinet Office, whose offices are located at 9th Floor, The Capital, Old Hall Street,
Liverpool L3 9PP ("Authority");
(2)
TNT UK LIMITED, which is a company registered in England under company number
1628530 and whose registered office is at P.O. Box 99, Stubbins Vale Mill,
Stubbins Vale Road, Ramsbottom, Bury, Lancashire, BL8 9BF("Supplier").
BACKGROUND:
A
The Authority placed a contract notice S56-86971-2012 on 16/03/2012 in the Official
Journal of the European Union inviting providers of Dedicated Courier Network
Services to Contracting Bodies to tender, using an ‘Open’ award procedure, for the
provision of such services under a framework arrangement.
B
On 20/03/2012 the Authority issued, using the Sourcing@HMRC ePortal, an
invitation to tender ("Invitation to Tender") for the provision of Dedicated Courier
Network Services.
C
The Supplier submitted its Tender to the Invitation to Tender on 27/04/2012 via the
Sourcing@HMRC ePortal. The Tender has been extracted from the portal and is
appended to this agreement at Appendix A.
D
The Supplier represented to the Authority that it is capable of delivering the 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 Services in an
efficient and cost effective manner.
E
On the basis of the Supplier's tender, the Authority selected the Supplier to enter into
a framework agreement to provide the Services to Contracting Bodies from time to
time on a call-off basis in accordance with this Framework Agreement.
F
This Framework Agreement sets out the award and ordering procedure for
purchasing the Services which may be required by Contracting Bodies, the main
terms and conditions for any Call-Off Agreement which Contracting Bodies may
conclude and the obligations of the Supplier during and after the Term of this
Framework Agreement.
G
It is the Parties’ intention that there will be an obligation for the Department for Work
and Pensions (DWP) and HM Revenue & Customs (HMRC) to award Orders for the
provision of Services upon award of the Framework Agreement.
H
It is the Parties' intention that there will be an entitlement, but no obligation, for any
other Contracting Body to award any Order under this Framework Agreement during
the Term.
GPS Template: Services Framework Agreement
1
IT IS AGREED:
1.
DEFINITIONS AND INTERPRETATION
1.1
In this Framework Agreement the following expressions shall have the following
meanings:
"Admin Fees" means the costs incurred by the Authority in dealing with MI Failures
calculated in accordance with the tariff of administration charges published by
Government
Procurement
Service
at
the
following
link:
http://www.buyingsolutions.gov.uk/aboutus/Supplierzone/adminfees;
"Affiliated Company" means any Parent Company of the Supplier or any company
which is a Subsidiary of that Parent Company or the Supplier;
"Affected Party" means the Party seeking to claim relief in respect of a Force
Majeure Event;
"Approval" means the prior written consent of the Authority and "Approve" and
"Approved" shall be construed accordingly. For the purposes of Clause 24.1 written
Approval is to be granted by a manager dealing with this procurement;
"Average Price" means in relation to the Comparable Services provided by the
Comparison Group, the mean average of prices for those Comparable Services as
adjusted to produce Equivalent Rates Data over the previous twelve (12) Months
period, or other period as agreed between the Contracting Body and the Supplier.
(This "average price" shall be calculated by aggregating the prices derived from
Equivalent Rates Data for each of the services and dividing the same by the number
instances of Comparable Services);
"Audit" means an audit carried out pursuant to Clause 17 (Records and Audit
Access);
"Auditors" shall have the meaning set out in Clause 17.4;
"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 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,
including all IPRs, 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 be considered to be confidential;
"BACS" means the Banks Automated Clearing System;
“Benchmark Report” means the report produced by the Supplier following the
Benchmark Review as further described in Framework Schedule 7;
"Benchmark Review" means a review of the Services carried out in accordance
with paragraphs 2.1 to 2.3 of the Framework Schedule 7 to determine whether those
Services represent Good Value;
GPS Template: Services Framework Agreement
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"Branding Guidance" means Government Procurement Service's guidance in
relation
to
the
use
of
branding
available
at
http://www.buyingsolutions.gov.uk/categories/brand/;
"Call-Off Agreement" means a legally binding agreement (made pursuant to the
provisions of this Framework Agreement) for the provision of the Services made
between a Contracting Body and the Supplier comprising of an Order Form and the
Call-Off Terms;
"Call-Off Terms" means the terms and conditions in Part 2 of the Framework
Schedule 4 (Order Form and Call-Off Terms);
"CEDR" means the Centre for Effective Dispute Resolution;
"Change in Law" means any change in Law or policy which impacts on the supply
of the Services and performance of the Call-Off Terms which comes into force after
the Commencement Date;
"Change of Control" shall have the meaning set out in Clause 26.12;
"Charges" means the charges raised under or in connection with a Call-Off
Agreement 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 Agreement, which structure is set
out in Framework Schedule 3 (Charging Structure);
"Commencement Date" means 01/01/2013;
"Commercially Sensitive Information" means the Confidential Information listed in
paragraph 11 of the Order Form and Schedule 12 (Commercially Sensitive
Information) of the Framework Agreement comprised of a commercially sensitive
information:
(a)
relating to the Supplier, its IPR or its business or information 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;
(b)
that constitutes a trade secret.
"Comparison Group" means a sample group of organisations providing
Comparable supply of 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;
“Comparable Rates” means rates payable by the Comparison Group for
Comparable Services so as to be fair comparable rate with the Framework Prices;
"Comparable Supply" means the supply of services to another customer of the
Supplier that are the same or similar to the Services;
GPS Template: Services Framework Agreement
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“Comparable Services” means services that are identical or materially similar to the
benchmarked Services (including in terms of scope, specification, volume and quality
of performance) provided that if no identical or materially similar services exist in the
market, the Supplier shall propose an approach for developing a comparable
services benchmark;
"Complaint" means any formal complaint raised by a Contracting Body in relation to
the performance of this Framework Agreement or any Call-Off Agreement in
accordance with Clause 44 (Complaints Handling and Resolution);
"Confidential Information" means the Authority's Confidential Information and/or
the Supplier's Confidential Information;
"Consistent Failure" means any of:
(a)
two (2) or more failures by the Supplier to comply with the Standards in
any rolling period of twelve (12) Months;
(b)
two (2) or more failures by the Supplier to accept an Order within two (2)
Working Days of receipt in any rolling period of twelve (12) Months;
(c)
two (2) or more consecutive failures by the Supplier to provide the
Management Information by the Reporting Date at any time during the
Term; or
(d)
any two (2) or more failures by the Supplier to meet the KPI Targets
(whether the failures relate to the same or different KPI Targets) in
relation to one or more Call-Off Agreements in any rolling period of twelve
(12) Months;
"Continuous Improvement Plan" means a plan for improving the provision of the
Services and/or reducing the charges produced by the Supplier pursuant to
Schedule of the Framework Agreement;
"Contract Year" means each consecutive twelve (12) Month period during the Term
commencing on the Commencement Date;
"Contracting Bodies" means bodies listed in paragraph [VI.3] of the OJEU Notice
and “Contracting Bodies” and “Contracting Body” shall be construed
accordingly;
"Contracting Body Satisfaction Survey" shall have the meaning set out in
Clause 18.1;
"Control" means control as defined in sections 1124 and 450 of the Corporation Tax
Act 2010;
"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;
“Customer Data” shall have the meaning as defined in the Call-Off Agreement;
GPS Template: Services Framework Agreement
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"Data Controller" shall have the same meaning as set out in the Data Protection
Act 1998;
"Data Processor" shall have the same meaning as set out in the Data Protection
Act 1998;
"Data Protection Legislation" means the Data Protection Act 1998 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;
"Data Subject" shall have the same meaning as set out in the Data Protection
Act 1998;
"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, negligence or negligent statement of the Supplier 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;
"Direct Award Criteria" means the award criteria to be applied for the award of
Call-Off Agreements for Standard Services set out in Part 1 of Framework Schedule
6 (Award Criteria);
"Direct Ordering Procedure" means the ordering procedure set out in paragraph 2
of Framework Schedule 5 (Ordering Procedure);
"Equivalent Services" shall have the meaning set out in Clause 6.3;
"Electronic Marketplace" means a web based application which facilitates
electronic trade between one or more buying organisations and many suppliers;
"Environmental Information Regulations" 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 Rates Data” means data derived from an analysis of the Comparable
Rates provided by the Comparison Group;
"FOIA" means the Freedom of Information Act 2000 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;
"Force Majeure Event" means any event, occurrence or cause affecting the
performance by either the Contracting Bodies or the Supplier of its obligations arising
from:
(a)
acts, events, omissions, happenings or non-happenings beyond the
reasonable control of the Affected Party;
GPS Template: Services Framework Agreement
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(b)
riots, war or armed conflict, acts of terrorism, nuclear, biological or
chemical warfare;
(c)
acts of government, local government or Regulatory Bodies;
(d)
fire, flood or any disaster;
(e)
an industrial dispute affecting a third party for which a substitute third
party is not reasonably available but excluding:
(i)
any industrial dispute relating to the Supplier, the Supplier's
Staff or any other failure in the Supplier or the Sub-Contractor's
supply chain; and
(ii)
any event or occurrence which is attributable to a wilful act,
neglect or failure to take reasonable precautions against the
event or occurrence by the Party concerned;
"Framework Agreement" means the Clauses of this Framework Agreement
together with the Framework Schedules and annexes to it;
"Framework Price(s)" means the price(s) applicable to the provision of the Services
set out in Framework Schedule 3 (Charging Structure);
"Framework Supplier" means the supplier appointed under this Framework
Agreement;
"Framework" means the framework arrangements established by the Authority for
the provision of Dedicated Courier Network Services to Contracting Bodies by the
Framework Supplier;
"Fraud" means any offence under Laws creating offences in respect of fraudulent
acts (including the Misrepresentation Act 1967) or at common law in respect of
fraudulent acts in relation to this Framework Agreement or defrauding or attempting
to defraud or conspiring to defraud the Crown;
"Further Competition Award Criteria" means the award criteria set out in Part 2 of
Framework Schedule 6 (Award Criteria);
"Further Competition Procedure" means the ordering procedure described in
Paragraph 3 of Framework Schedule 5 (Ordering Procedure);
"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;
GPS Template: Services Framework Agreement
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"Good Value" means that:
(a)
the Charges attributable to benchmarked Services are, having taken into
account the Service Levels, are within the upper quartile; and
(b)
any Service Levels attributable to benchmarked Services are, having
taken into account the Charges, equal to or greater than the median
service levels for Comparable Services as adjusted using Equivalent
Rates Data;
"Guarantee" (Not Applicable to this Framework Agreement)
"Guarantor" (Not Applicable to this Framework Agreement)
"Guidance" means any guidance issued or updated by the UK Government from
time to time in relation to the Regulations;
"Holding Company" shall have the meaning given to it in section 1159 and
Schedule 6 of the Companies Act 2006;
"Information" has the meaning given under section 84 of the Freedom of
Information Act 2000;
"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, service marks, logos, database rights, trade marks,
rights in internet domain names and website addresses and other rights in
trade or business
names, design rights (whether registerable or
otherwise), Know-How, trade secrets and moral rights and other similar
rights or obligations;
(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 whether registerable or not having equivalent or similar
effect in any country or jurisdiction (including but not limited to the United
Kingdom) and the right to sue for passing off;
"Invitation to Tender" or "ITT" means the Invitation to Tender issued by the
Authority, using the Sourcing@HMRC ePortal, on 20/03/2012.
"ICT Environment" means the Contracting Bodies System and the Supplier System;
“Key Performance Indicators” or “KPIs” means the performance measurements
and targets set out in Part 3 of Framework Schedule 1;
"Know-How" means all ideas, concepts, schemes, information, knowledge,
techniques, methodology, and anything else in the nature of know-how relating to the
Services but excluding know-how already in the Supplier's or the Authority's
possession before the Commencement Date;
GPS Template: Services Framework Agreement
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“KPI Target” means the acceptable performance level for a KPI as set out in each
KPI;
"Law" means any applicable Act of Parliament, subordinate legislation within the
meaning of Section 21(1) of the Interpretation Act 1978, exercise of the royal
prerogative, enforceable community right within the meaning of Section 2 of the
European Communities Act 1972, regulatory policy, guidance or industry code,
judgment of a relevant court of law, or directives or statute, bye-law, regulation,
order, regulatory policy, guidance or industry code, rule of Court or directives or
requirements of any Regulatory Body, delegated or subordinate legislation;
"Malicious Software" means any software program or code intended to destroy,
interfere with, corrupt, or cause undesired effects on program files, data or other
information, executable code or application software macros, whether or not its
operation is immediate or delayed, and whether the malicious software is introduced
wilfully, negligently or without knowledge of its existence;
"Management Charge" means the sum paid by the Supplier to the Authority being
an amount of 0.5 per cent (0.5%) of all Charges for the Services invoiced to the
Contracting Bodies (net of VAT) in each Month throughout the Term and thereafter
until the expiry or earlier termination of any Call-Off Agreement;
"Management Information" means the management information specified in
Framework Schedule 8 (Management Information Requirements);
"Material Default" means a material breach of this Framework Agreement and/or,
breach by the Supplier of any of the following Clauses: Clause 8 (Warranties and
Representations), Clause 9 (Prevention of Bribery and Corruption), Clause 13
(Statutory Requirements and Standards), Clause 14 (Non-Discrimination), Clause 15
(Provision of Management Information), Clause 16 (Management Charge), Clause 17
(Records and Audit Access), Clause 22 (Data Protection), Clause 23 (Freedom of
Information) and Clause 31 (Transfer & Sub-contracting);
"Mediator" shall have the meaning set out in Clause 45.5.1;
"MI Default" has the meaning in paragraph 7 of Framework Schedule 8
(Management Information);
"MI Failure" has the meaning in paragraph 6.2 of Framework Schedule 8;
"MI Report" means a report containing Management Information submitted to the
Authority in accordance with Framework Schedule 8 (Management Information);
"MI Reporting Template" means the form of report set out in the Annex to
Framework Schedule 8 (Management Information) setting out the information the
Supplier is required to supply to the Authority;
"MISO" means 'Management Information System Online', a system provided by the
Authority for collection and receipt of Management Information;
"Ministry of Justice Guidance" means Ministry of Justice Guidance in relation to
Section 9 of the Bribery Act 2010 available at
http://www.justice.gov.uk/guidance/docs/bribery-act-2010-guidance.pdf;
GPS Template: Services Framework Agreement
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"Month" means a calendar month and "monthly" shall be interpreted accordingly;
"New Services" shall have the meaning set out in Clause 7.1;
"OJEU Notice" means the contract notice S56-86971-2012 dated 16/03/2012
published in the Official Journal of the European Union;
"Order Form" means the form set out in Part 1 of Framework Schedule 4 (Order
Form and Call-Off Terms) to be used by Contracting Bodies to order Services;
"Order" means an order for the provision of the Services placed by a Contracting
Body with the Supplier in accordance with the Ordering Procedures;
"Ordered Services" means Services which are the subject of an Order by a
Contracting Body;
"Ordering Procedures" means the ordering and award procedures specified in
Clause 6 (Ordering Procedures) and Framework Schedule 5 (Ordering Procedure);
"Other Contracting Bodies" means all Contracting Bodies except the Authority and
“Other Contracting Bodies” and “Other Contracting Body” shall be construed
accordingly;
"Parent Company" means any company which is the ultimate Holding Company of
the Supplier and which is either responsible directly or indirectly for the business
activities of the Supplier. The term "Holding or Parent Company" shall have the
meaning ascribed by the Companies Act 2006 or any statutory re-enactment or
amendment thereto;
"Party" means the Authority or the Supplier and "Parties" shall be interpreted
accordingly;
"Personal Data" shall have the same meaning as set out in the Data Protection
Act 1998;
"Process" has the meaning given to it under the Data Protection Legislation but, for
the purposes of this Framework Agreement, it shall include both manual and
automatic processing;
"Prohibited Act" means:
i.
(a)
to directly or indirectly offer, promise or give any person working for or
engaged by the Contracting Bodies and/or the Authority a financial or
other advantage to:
(b)
induce that person to perform improperly a relevant function or activity; or
(c)
reward that person for improper performance of a relevant function or
activity; or
(d)
committing any offence:
under the Bribery Act 2010; or
GPS Template: Services Framework Agreement
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ii.
under legislation creating offences concerning fraudulent acts; or
iii.
at common law concerning fraudulent acts relating to this Framework Agreement and
the Call-Off Agreement or any other contract with the Authority and/or any Other
Contracting Body; or
iv.
defrauding, attempting to defraud or conspiring to defraud the Authority and/or any
Other Contracting Body.
"Quality Measures" means the measures of quality which apply to any Call-Off
Agreement as set out in paragraph 2.4 of the Order Form;
"Regulations" means the Public Contracts Regulations 2006 as amended;
"Regulatory Bodies" means those government departments and regulatory,
statutory and other entities, committees, ombudsmen and bodies which, whether
under statute, rules, regulations, codes of practice or otherwise, are entitled to
regulate, investigate, or influence the matters dealt with in this Framework
Agreement or any other affairs of the Authority;
"Relevant Person" means any employee, agent, servant, or representative of the
Authority, any other public body or person employed by or on behalf of the Authority,
or any other public body;
"Relevant Supplier" shall have the meaning set out in Clause 7.1;
"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;
"Requests for Information" means a request for information or an apparent request
under the Code of Practice on Access to Government Information, FOIA or the
Environmental Information Regulations;
"RPIX Index" shall have the meaning given to it in paragraph 5.4 of Framework
Schedule 3 (Charging Structure);
"Self Audit Certificate" means the certificate in the form as set out in Framework
Schedule 9 (Self Audit Certificate) to be provided to the Authority in accordance with
Clause 17.3 (Records and Audit Access);
"Services" means the services described in Framework Schedule 1 (Services)
which the Supplier shall make available to Contracting Bodies;
“Service Levels” means the Service Levels detailed in Schedule 6 of the Call-Off
Agreement and in paragraph 5.3 of the Order Form;
“Services Requirements” means the requirements of the Authority or any other
Contracting Body (as appropriate) for the Services from time to time;
"Special Terms" means any terms which are additional to the terms set out in the
Call-Off Agreement which are agreed between a Contracting Body and the Supplier
and are specified in the Order;
GPS Template: Services Framework Agreement
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"Specific Change in Law" a Change in Law that relates specifically to the business
of the Authority and which would not affect a Comparable Supply;
"Standard Services" means the standard Services referred to in Framework
Schedule 1 (Services);
"Standards" means the British or international standards, Authority's internal policies
and procedures, Government codes of practice and guidance referred to in
Framework Schedule 13 (Standards) together with any other specified policies or
procedures identified in Call-Off Schedule 10 (Standards);
“Statement of Requirements” means a statement issued by the Authority or any
Other Contracting Body detailing its Services Requirement issued in accordance with
the Ordering Procedure;
"Statement of Work" means the statement submitted by a Framework Supplier as
part of a further competition as described in paragraph 3.1.3 of Framework Schedule
5 (Ordering Procedure);
"Sub-Contract" means any contract or agreement or proposed agreement between
the Supplier and any third party whereby that third party agrees to provide to the
Supplier the Services or any part thereof or facilities or services necessary for the
provision of the Services or any part thereof;
"Sub-Contractor" means each of the sub-contractors listed in Framework Schedule
(Sub-Contractors) or any person engaged by the Supplier in connection with the
provision of the Services from time to time as may be permitted by this Framework
Agreement;
"Subsidiary" has the meaning given to it in section 1159 of the Companies
Act 2006;
"Supplier Representative" means the representative appointed by the Supplier
from time to time in relation to this Framework Agreement;
"Supplier Staff" means all persons employed by the Supplier together with the
Supplier's servants, agents, suppliers and Sub-Contractors used in the performance
of its obligations under this Framework Agreement or any Call-Off Agreements;
"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;
I
"Tender" means the tender submitted by the Supplier to the Authority on 27/04/2012
via the Sourcing@HMRC ePortal. The Tender has been extracted from the portal
and is appended to this agreement at Appendix A.
"Term" has the meaning in Clause 2 of this Framework Agreement;
"Third Party" shall have the meaning set out in Clause 34.1;
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"VAT" means value added tax in accordance with the provisions of the Value Added
Tax Act 1994;
"Working Days" means any day other than a Saturday, Sunday or public holiday in
England and Wales; and
"Year" means a calendar year.
1.2
The interpretation and construction of this Framework Agreement shall all be subject
to the following provisions:
1.2.1
words importing the singular meaning include where the context so admits
the plural meaning and vice versa;
1.2.2
words importing the masculine include the feminine and the neuter and
vice versa;
1.2.3
the words "include", "includes" "including" "for example" and "in particular"
and words of similar effect shall be construed as if they were immediately
followed by the words "without limitation";
1.2.4
references to any person shall include natural persons and partnerships,
firms and other incorporated bodies and all other legal persons of
whatever kind and however constituted and their successors and
permitted assigns or transferees;
1.2.5
references to any statute, enactment, order, regulation or other similar
instrument shall be construed as a reference to the statute, enactment,
order, regulation or instrument as amended by any subsequent
enactment, modification, order, regulation or instrument as subsequently
amended or re-enacted;
1.2.6
headings are included in this Framework Agreement for ease of reference
only and shall not affect the interpretation or construction of this
Framework Agreement;
1.2.7
references in this Framework Agreement to any Clause or Framework
Schedule without further designation shall be construed as a reference to
the Clause or sub-Clause or Schedule to this Framework Agreement so
numbered;
1.2.8
references in this Framework Agreement to any paragraph or
Sub-paragraph without further designation shall be construed as a
reference to the paragraph or sub-paragraph of the relevant Framework
Schedule to this Framework Agreement so numbered;
1.2.9
reference to a Clause is a reference to the whole of that Clause unless
stated otherwise; and
1.2.10
in the event and to the extent only of any conflict between the Clauses
and the remainder of the Framework Schedules, the Clauses shall prevail
over the remainder of the Framework Schedules.
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PART ONE: FRAMEWORK ARRANGEMENTS AND AWARD PROCEDURE
2.
TERM OF FRAMEWORK AGREEMENT
2.1 This Framework Agreement shall take effect on the 01/01/2013 (the
“Commencement Date”) and shall expire four (4) Years after the Commencement
Date, unless it is terminated earlier in accordance with the terms of this Framework
Agreement or otherwise by operation of Law (“Term”).
3.
SCOPE OF FRAMEWORK AGREEMENT
3.1
This Framework Agreement governs the relationship between the Authority and the
Supplier in respect of the provision of the Services by the Supplier to the Authority
and to Other Contracting Bodies.
3.2
The Authority and Other Contracting Bodies may, at their absolute discretion and
from time to time during the Term, order the Services from the Supplier in
accordance with the Ordering Procedures.
3.3
The Supplier acknowledges that there is no obligation whatsoever on the Authority or
on any Other Contracting Body to invite or select the Supplier to provide any
Services and/or to purchase any Services under this Framework Agreement.
3.4
No undertaking or any form of statement, promise, representation or obligation shall
be deemed to have been made by the Authority or any Other Contracting Body in
respect of the total quantities or values of the Services to be ordered by them
pursuant to this Framework Agreement and the Supplier acknowledges and agrees
that it has not entered into this Framework Agreement on the basis of any such
undertaking, statement, promise or representation.
4.
SUPPLIER'S APPOINTMENT
The Authority appoints the Supplier as a potential provider of the Services and the
Supplier shall be eligible to be considered for the award of Orders for such Services
by the Authority and Other Contracting Bodies during the Term and 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 five (£5.00) pounds (receipt of
which is hereby acknowledged by the Supplier).
5.
NON-EXCLUSIVITY
The Supplier acknowledges that in entering into this Framework Agreement no form
of exclusivity has been conferred on, or volume guarantee granted by the Authority
and Other Contracting Bodies in relation to the provision of the Services by the
Supplier and that the Authority and Other Contracting Bodies are at all times entitled
to enter into other contracts and agreements with other suppliers for the provision of
any or all services which are the same as or similar to the Services.
6.
ORDERING PROCEDURES
6.1
If the Authority or any Other Contracting Body decides to source the Services
through this Services Framework then each Contracting Body shall be entitled at any
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time, during the Term to place an order for the Services from the Supplier by serving
an Order in accordance with Framework Schedule 5 (Ordering Procedure).
6.2
The Supplier shall comply with the relevant provisions in Framework Schedule 5
(Ordering Procedure). On receipt of the Order Form from a Contracting Body the
Supplier shall accept the Order by signing and returning a copy of the Order Form to
the Contracting Body concerned and a Call-Off Agreement shall be formed on
acknowledgement by the Contracting Body of that signed Order Form.
6.3
In the event that any Other Contracting Body makes an approach to the Supplier with
a request for the supply of services which are the same as or similar to the Services
("Equivalent Services"), the Supplier shall promptly and in any event within five (5)
Working Days of the request by the Other Contracting Body, and before any supply
of Equivalent Services is made, inform such Other Contracting Body of the existence
of this Framework and its ability to place Orders for Services pursuant to it.
7.
ASSISTANCE IN RELATED PROCUREMENTS
Sharing of information
7.1
7.2
In any case where a Contracting Body wishes to procure Services ("New Services")
in circumstances where the Supplier or an Affiliated Company of the Supplier is
already providing (or due to provide) the Services or services similar to the Services
("Legacy Services") to that Contracting Body which is related to or which interfaces
with or is intended to interface with or be replaced by the New Services, the Supplier
shall promptly provide the relevant Contracting Body and any supplier bidding for
those New Services ("Relevant Supplier") with all reasonable information and
assistance as may be required from time to time to:
7.1.1
carry out appropriate due diligence with respect to the provision of the
New Services;
7.1.2
effect a smooth transfer and/or inter-operation (as the case may be)
between the Legacy Services and the New Services;
7.1.3
enable the Contracting Body to carry out a fair Further Competition
Procedure for the New Services; and
7.1.4
enable the Contracting Body and Relevant Supplier to make a proper
assessment as to the risk related to the New Services.
When performing its obligations in Clause 7.1 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.
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PART TWO: SUPPLIER’S GENERAL FRAMEWORK OBLIGATIONS
8.
WARRANTIES AND REPRESENTATIONS
8.1
The Supplier warrants represents and undertakes to the Authority and to each of the
Other Contracting Body that:
8.1.1
it has full capacity and authority and all necessary consents (including,
where its procedures so require, the consent of its Parent Company) to
enter into and to perform its obligations under this Framework Agreement;
8.1.2
this Framework Agreement
representative of the Supplier;
8.1.3
in entering into this Framework Agreement and any Call-Off Agreement it
has not committed any Fraud;
8.1.4
all information, statements, warranties and representations contained in
the Tender and (unless otherwise agreed) any other document which
resulted in the award of this Framework for the Services are true,
accurate, and not misleading save as may have been specifically
disclosed in writing to the Authority prior to the execution of this
Framework Agreement and it will promptly advise the Authority of any
fact, matter or circumstance of which it may become aware which would
render any such information, statement or representation to be false or
misleading;
8.1.5
it has not entered into any agreement with any other person with the aim
of preventing tenders being made or as to the fixing or adjusting of the
amount of any tender or the conditions on which any tender is made in
respect of this Framework;
8.1.6
it has not caused or induced any person to enter such agreement referred
to in Clause 8.1.4 above;
8.1.7
it has not offered or agreed to pay or give any sum of money, inducement
or valuable consideration directly or indirectly to any person for doing or
having done or causing or having caused to be done any act or omission
in relation to any other tender or proposed tender for Services under this
Framework;
8.1.8
no claim is being asserted and no litigation, arbitration or administrative
proceeding is presently in progress, or, to the best of its knowledge and
belief pending or threatened against it or any of its assets which will or
might affect its ability to perform its obligations under this Framework
Agreement and/or any Call-Off Agreement which may be entered into with
the Authority or Other Contracting Bodies;
8.1.9
it is not subject to any contractual obligation, compliance with which will
be likely to have an effect on its ability to perform its obligations under this
Framework Agreement and/or any Call-Off Agreement which may be
entered into with the Authority or Other Contracting Bodies;
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executed
by
a
duly
authorised
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8.1.10
in connection with the exercise of its rights and performance of its
obligations pursuant to this Framework Agreement it will at all times use
all reasonable endeavours to meet or exceed the Key Performance
Indicators;
8.1.11
no proceedings or other steps have been taken and not discharged or
dismissed (nor, to the best of their knowledge, 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; and
8.1.12
in the three (3) Years prior to the date of this Framework Agreement (or, if
the Supplier has been in existence for less than three (3) Years, in the
whole of such shorter period) it has:
8.1.12.1
conducted all financial accounting and reporting activities in
compliance in all material respects with the generally accepted
accounting principles that apply to it in any country where it
files accounts;
8.1.12.2
it has been in full compliance with all applicable securities
Laws and regulations in the jurisdiction in which it is
established; and
8.1.12.3
it has not performed any act or made any omission with
respect to its financial accounting or reporting which could
have an adverse effect on the Supplier's position as an
ongoing business concern or its ability to fulfil its obligations
under this Framework Agreement.
8.2
Each time a Call-Off Agreement is entered into the warranties, representations and
undertakings in Clause 8.1 shall be deemed to be repeated by the Supplier with
reference to the circumstances existing at the time that they are deemed to be
repeated.
8.3
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 breach of that provision by the Supplier.
8.4
The Supplier acknowledges and agrees that:
8.4.1
the warranties, representations and undertakings contained in this
Framework Agreement are material and are designed to induce the
Authority into entering into this Framework Agreement and to induce the
Authority and each and every Other Contracting Body to enter into
Call-Off Agreements;
8.4.2
the Authority has been induced into entering into this Framework
Agreement and in doing so has relied upon the warranties,
representations and undertakings contained in this Framework
Agreement; and
8.4.3
each Contracting Body will (amongst other things) on each and every
occasion that it enters into a Call-Off Agreement be induced into doing so
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by, and in being so induced shall rely upon, the warranties,
representations and undertakings contained in this Framework
Agreement.
9.
PREVENTION OF BRIBERY AND CORRUPTION
9.1
The Supplier shall not:
9.2
9.3
9.1.1
offer or give, or agree to give, to any employee, agent, servant or
representative of the Authority, or the Other Contracting Bodies, or any
other public body or person employed by or on behalf of the Authority, any
gift or other consideration of any kind which could act as an inducement or
a reward for any act or failure to act in relation to this Framework
Agreement or any other contract with any Relevant Person;
9.1.2
engage in and shall procure that all Supplier's Staff, consultants, agents
or Sub-Contractors or any person acting on the Supplier's behalf shall not
commit, in connection with this Framework Agreement, a Prohibited Act
under the Bribery Act 2010, or any other relevant Laws, statutes,
regulations or codes in relation to bribery and anti-corruption.
The Supplier warrants, represents and undertakes to the Authority that it has not:
9.2.1
in entering into this Framework Agreement breached the undertakings in
Clause 9.1 and each time a Call-Off Agreement is entered into this
warranty shall be deemed to be repeated by the Supplier with reference to
the circumstances existing at the time that the warranty is deemed to be
repeated; and
9.2.2
paid commission or agreed to pay commission to the Authority, or the
Other Contracting Bodies, or any other public body or any person
employed by or on behalf of the Authority or a public body in connection
with this Framework Agreement; and
9.2.3
entered into this Framework Agreement and the Call-Off Agreement with
knowledge, that, in connection with it, any money has been, or will be,
paid to any person working for or engaged by the Authority, or the Other
Contracting Bodies, or any other public body or any person employed by
or on behalf of the Authority in connection with this Framework
Agreement, or that an agreement has been reached to that effect, unless
details of any such arrangement have been disclosed in writing to the
Authority before execution of this Framework Agreement.
The Supplier shall:
9.3.1
in relation to this Framework Agreement, act in accordance with the
Ministry of Justice Guidance pursuant to Section 9 of the Bribery
Act 2010;
9.3.2
immediately notify the Authority if it suspects or becomes aware of any
breach of this Clause 9;
9.3.3
respond promptly to any of the Authority's enquiries regarding any breach,
potential breach or suspected breach of this Clause 9 and the Supplier
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shall co-operate with any investigation and allow the Authority to audit
Supplier's books, records and any other relevant documentation in
connection with the breach;
9.4
Any audit conducted pursuant to Clause 9.3.3 shall be in addition to the number of
audits permitted under Clause 17 of this Framework Agreement.
9.5
If the Supplier, its Staff, consultants, agents or Sub-Contractors or any person acting
on the Supplier's behalf, in all cases whether or not acting with the Supplier's
knowledge breaches:
9.5.1
this Clause 9; or
9.5.2
the Bribery Act 2010 in relation to this Framework Agreement or any other
contract with the Authority or any person employed by or on behalf of the
Authority or any Relevant Person,
the Authority shall be entitled to terminate this Framework Agreement and the
Call-Off Agreement by written notice with immediate effect in accordance with
Clause 26.1 (Termination on Bribery and Corruption).
9.6
Without prejudice to its other rights and remedies under this Clause 9, the Authority
shall be entitled to recover in full from the Supplier and the Supplier shall on demand
indemnify the Authority in full from and against:
9.6.1
the amount of value of any such gift, consideration or commission; and
9.6.2
any other loss sustained by the Authority in consequence of any breach of
this Clause 9.
9.7
For the avoidance of doubt, the Parties agree that the Management Charge payable
in accordance with Clause 16 does not constitute a payment of commission for the
purposes of this Clause 9.
10.
CONFLICTS OF INTEREST
10.1
The Supplier shall take appropriate steps to ensure that neither the Supplier nor
Supplier’s Staff are placed in a position 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 or the Supplier’s Staff and the duties
owed to the Authority and Other Contracting Bodies under the provisions of this
Framework Agreement or any Call-Off Agreement.
10.2
The Supplier shall promptly notify and provide full particulars to the Authority or the
relevant Other Contracting Body if such conflict referred to in Clause 10.1 above
arises or may reasonably been foreseen as arising.
10.3
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 Agreement. The action of the Authority
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pursuant to this Clause shall not prejudice or affect any right of action or remedy
which shall have accrued or shall thereafter accrue to the Authority.
11.
SAFEGUARD AGAINST FRAUD
11.1
The Supplier shall take all reasonable steps, in accordance with Good Industry
Practice, to prevent any fraudulent activity (including Fraud) by the Supplier and
Supplier’s Staff (including its shareholders holding in excess of the 50% of the entire
issued share capital of the Supplier and directors).
11.2
The Supplier shall notify the Authority immediately if it has reason to suspect that any
Fraud has occurred, is occurring or is likely to occur save where complying with this
provision would cause the Supplier or its employees to commit an offence under the
Proceeds of Crime Act 2002 or the Terrorism Act 2000.
11.3
If the Supplier or the Supplier’s Staff commits Fraud in relation to this Framework
Agreement, a Call-Off Agreement or any other contract with the Crown (including the
Authority), the Authority may:
11.3.1
terminate this Framework Agreement with immediate effect by giving the
Supplier notice in writing, and recover from the Supplier the amount of any
loss suffered by the Authority resulting from the termination, including the
cost reasonably incurred by the Authority of making other arrangements
for the supply of the Services and any additional expenditure incurred by
the Authority throughout the remainder of the Term; or
11.3.2
recover in full from the Supplier and the Supplier shall on demand
indemnify the Authority in full from and against any other loss sustained
by the Authority in consequence of any breach of this Clause 11.
12.
CALL-OFF AGREEMENT PERFORMANCE
12.1
The Supplier shall perform all its obligations under all Call-Off Agreements entered
into with the Authority or any Other Contracting Body:
12.1.1
in accordance with the requirements of this Framework Agreement;
12.1.2
in accordance with the terms and conditions of the respective Call-Off
Agreements;
12.1.3
in accordance with Good Industry Practice;
12.1.4
with appropriately experienced, qualified and trained personnel with all
due skill, care and diligence; and
12.1.5
in compliance with all applicable Laws.
12.2
The Supplier shall draw any conflict between any of the requirements of
sub-Clauses 12.1.1 or 12.1.2 and those of sub-Clause 12.1.3 to the attention of the
Authority and shall comply with the Authority's decision on the resolution of that
conflict.
12.3
For the purposes of sub-Clause 12.1 if there is any conflict between the requirements
of this Framework Agreement and the terms and conditions of the respective Call-Off
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Agreements the conflict shall be resolved in accordance with the following order of
precedence:
12.3.1
this Framework Agreement (excluding blank Framework Schedule 4);
12.3.2
Framework Schedules 1-3, 5 -14;
12.3.3
Call-Off Agreement; (completed Framework Schedule 4 template)
12.3.4
the Order Form; (completed Framework Schedule 4 template)
12.3.5
any other document referred to in the Call-Off Agreement (not including
the Framework Agreement).
13.
STATUTORY REQUIREMENTS AND STANDARDS
13.1
The Supplier shall be responsible for obtaining and maintaining all licences,
authorisations, consents or permits required in relation to the performance of its
obligations under this Framework Agreement and any Call-Off Agreement.
13.2
The Supplier shall comply with the Standards in performing its obligations under this
Framework Agreement and as set out in Schedule 13.
14.
NON-DISCRIMINATION
14.1
The Supplier shall not, and shall procure that the Supplier's Staff and
Sub-Contractors do not, unlawfully discriminate either directly or indirectly when
performing their obligations under this Framework Agreement and any Call-Off
Agreement within the meaning and scope of any Law, enactment, order or regulation
relating to discrimination on grounds of race, gender, religion or religious belief,
colour, ethnic or national origin, disability, sexual orientation, age or otherwise.
14.2
The Supplier shall take all reasonable steps to secure the observance of Clause 14.1
by all Supplier's Staff, agents and Sub-Contractors and shall comply with any
Authority’s policy on the matters set out in Clause 14.1, as reasonably directed by the
Authority.
14.3
In performing its obligations under this Framework Agreement the Supplier shall treat
all Contracting Bodies in the same manner, regardless of their size.
PART THREE: SUPPLIER'S INFORMATION AND PAYMENT OBLIGATIONS
15.
PROVISION OF MANAGEMENT INFORMATION
15.1
The Supplier shall, at no charge to the Authority, submit to the Authority complete
and accurate Management Information in accordance with the provisions of the
Framework Schedule 8 (Management Information Requirements).
15.2
The Supplier grants the Authority a non-exclusive, transferable, perpetual,
irrevocable, royalty free licence to use and to share with any Other Contracting Body
and Relevant Person any Management Information supplied to the Authority for the
Authority's normal operational activities including administering this Framework
Agreement and/or all Call-Off Agreements, monitoring public sector expenditure,
identifying savings or potential savings and planning future procurement activity.
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15.3
In the event the Authority shares the Management Information any Other Contracting
Body receiving such information shall be informed of the sensitive nature of that
information and shall be requested not to disclose it to any person who is not a
Crown body or Other Contracting Body (unless required to do so by Law).
16.
MANAGEMENT CHARGE
16.1
In consideration of the establishment and award of this Framework Agreement and
the management and administration by the Authority of the same, the Supplier
agrees to pay to the Authority the Management Charge in accordance with
Clause 16.2.
16.2
The Authority shall be entitled to submit invoices to the Supplier in respect of the
Management Charge due each Month based on the Management Information
provided pursuant to Framework Schedule 8 (Management Information
Requirements), and adjusted:
16.2.1
in accordance with paragraph 6.5 of Framework Schedule 8 (Provision of
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
16.2.2
pursuant to paragraph 7 of Framework Schedule 8 (Provision of
Management Information) to take into account any under payment of the
Management Charge.
16.3
Unless agreed otherwise, the Supplier shall pay the amount stated in any invoice
submitted under Clause 16.2 within thirty (30) calendar days of the date of issue of
the invoice.
16.4
The Management Charge amount, defined in Section 1 of this Framework
agreement, shall apply to the full Charges as specified in each and every Order and
shall not be varied as a result of any reduction in the Charges due to the application
of any service credits and/or any other deductions made under any Call-Off
Agreement.
16.5
The Management Charge shall be exclusive of VAT. The Supplier shall pay the VAT
on the Management Charge at the rate and in the manner prescribed by Law from
time to time.
16.6
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) Act 1998.
17.
RECORDS AND AUDIT ACCESS
17.1
The Supplier shall keep and maintain until seven (7) Years after the date of
termination or expiry (whichever is the earlier) of this Framework Agreement (or such
other longer period as may be agreed between the Parties), full and accurate records
and accounts of the operation of this Framework Agreement including the Services
provided under it, the Call-Off Agreements entered into with Contracting Bodies and
the amounts paid by each Contracting Body.
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17.2
The Supplier shall keep the records and accounts referred to in Clause 17.1 above in
accordance with Good Industry Practice.
17.3
The Supplier shall provide the Authority with a completed annual Self Audit
Certificate in respect of each Contract Year of this Framework Agreement. The Self
Audit Certificates shall be completed by a responsible senior member of the
Supplier’s management team or by the Supplier’s external auditor. The certificate
should confirm that tests have been completed to provide assurance that:
17.3.1 A representative sample of orders are clearly identified as framework
orders in the order processing/ invoicing systems and, where required,
orders are correctly reported in the MI returns;
17.3.2 All related invoices are completely and accurately included in the MI
returns; and
17.3.3 All charges to Contracting Bodies comply with Framework
requirements on maximum mark-ups, discounts, charge rates, fixed
quotes (as applicable).
17.4
The Supplier shall afford the Authority (or relevant Other Contracting Body), the
Authority's representatives, the National Audit Office and/or auditor appointed by the
Audit Commission ("Auditors") access to the records and accounts referred to in
Clause 17.1 at the Supplier's premises and/or provide copies of such records and
accounts, as may be required and agreed with the Authority (or relevant Other
Contracting Body) from time to time, in order that the Authority (or relevant
Contracting Body) may carry out an inspection including for the following purposes:
17.4.1
to verify the accuracy of Charges (and proposed or actual variations to
them in accordance with this Framework Agreement), and/or the costs of
the Supplier (including Sub-Contractors);
17.4.2
to review the integrity, confidentiality and security of the Personal Data
held or used by the Supplier;
17.4.3
to review the Supplier's compliance with the Data Protection Legislation in
accordance with this Framework Agreement and any other Laws;
17.4.4
to review the Supplier's compliance with its continuous improvement
obligations and its benchmarking obligations set out in Framework
Schedule 7;
17.4.5
to review the Supplier's compliance with its security obligations;
17.4.6
to review any books of accounts kept by the Supplier in connection with
the provision of the Services; and/or
17.4.7
to ensure that the Supplier is complying with its obligations under this
Framework Agreement and any Call-Off Agreement.
Each such inspection shall be an "Audit".
17.5
The Supplier shall provide such records and accounts (together with copies of the
Supplier's published accounts) on request during the Term and for a period of seven
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(7) Years after expiry of the Term to the Authority (or relevant Contracting Body) and
its internal and external auditors.
17.6
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
Services pursuant to the Call-Off Agreements, save insofar as the Supplier accepts
and acknowledges that control over the conduct of Audits carried out by the National
Audit Office is outside of the control of the Authority.
17.7
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:
17.7.1
all information requested by the Auditor within the scope of the Audit;
17.7.2
reasonable access to any sites controlled by the Supplier and to
equipment used in the provision of the Services (and/or Ordered Services
as appropriate); and
17.7.3
access to the Supplier Staff.
17.8
If an Audit reveals that the Supplier has underpaid an amount equal to or greater
than one per cent (1%) of the Management Charge due then the Supplier shall
reimburse the Authority its reasonable costs incurred in relation to the Audit.
17.9
If an Audit reveals:
17.9.1
that the Supplier has underpaid an amount equal to or greater than five
per cent (5%) of the Management Charge due;
17.9.2
a Material Default; and/or
17.9.3
a Consistent Failure;
and the Authority shall (in addition to the right to be reimbursed in Clause 17.8) be
entitled to exercise its rights to terminate this Framework Agreement pursuant to
Clause 26.4.
17.10 The Parties agree that they shall bear their own respective costs and expenses
incurred in respect of compliance with their obligations under this Clause 17, unless
the Audit reveals a Material Default by the Supplier in which case the Supplier shall
reimburse the Authority for the Authority's reasonable costs incurred in relation to the
Audit.
18.
CONTRACTING BODY SATISFACTION MONITORING
18.1
The Authority may from time to time undertake (or procure the undertaking of) a
Contracting Body satisfaction survey ("Contracting Body Satisfaction Survey") the
purpose of which shall include:
18.1.1
assessing the level of satisfaction among Contracting Bodies with the
supply of Services (including the way in which the Services are provided,
performed and delivered) and, in particular, with the quality, efficiency and
effectiveness of the supply of the Ordered Services;
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18.1.2
monitoring the compliance by the Supplier with this Framework
Agreement; and
18.1.3
such other assessment as it may deem appropriate for monitoring
Contracting Body satisfaction.
18.2
The Authority and any Other Contracting Body shall be entitled, but not obliged, to
use the results of the Contracting Body Satisfaction Survey to make decisions under
or in relation to this Framework Agreement, the Call-Off Agreements and any other
contract between the Contracting Body and the Supplier.
19.
CONFIDENTIALITY
19.1
Except to the extent set out in this Clause 19 or where disclosure is expressly
permitted elsewhere in this Framework Agreement, each Party shall:
19.2
19.1.1
treat all Confidential Information belonging to the other Party as
confidential and safeguard it accordingly; and
19.1.2
not disclose any Confidential Information belonging to the other Party to
any other person without the prior written consent of the other Party,
except to such persons and to such extent as may be necessary for the
performance of this Framework Agreement or except where disclosure is
otherwise expressly permitted by the provisions of this Framework
Agreement.
The Supplier shall take all necessary precautions to ensure that all Authority’s
Confidential Information obtained under or in connection with this Framework
Agreement:
19.2.1
is given only to the Supplier’s Staff engaged to advise it in connection with
this Framework Agreement as is strictly necessary for the performance of
this Framework Agreement; and
19.2.2
is treated as confidential and not disclosed (without prior Approval) or
used by any Supplier’s Staff otherwise than for the purposes of this
Framework Agreement.
19.3
The Supplier shall ensure that the Supplier Staff are aware of the Supplier's
confidentiality obligations under this Framework Agreement and shall use its best
endeavours to ensure that the Supplier Staff comply with the Supplier's confidentiality
obligations under this Framework Agreement.
19.4
At the written request of the Authority (which shall not be made unreasonably), the
Supplier shall procure that members of the Supplier Staff whom the Authority may
identify from time to time, sign a confidentiality undertaking in a form acceptable to
the Authority prior to commencing any work in accordance with this Framework
Agreement.
19.5
The Supplier shall not, and shall procure that the Supplier Staff do not, use any of the
Authority's Confidential Information received otherwise than for the purposes of this
Framework Agreement.
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19.6
In the event that any default, act or omission of any Supplier Staff causes or
contributes (or could cause or contribute) to the Supplier breaching its obligations as
to confidentiality under or in connection with this Framework Agreement, the Supplier
shall take such action as may be appropriate in the circumstances, including the use
of disciplinary procedures in serious cases. To the fullest extent permitted by its own
obligations of confidentiality to any Supplier Staff, the Supplier shall provide such
evidence to the Authority as the Authority may reasonably require (though not so as
to risk compromising or prejudicing the case) to demonstrate that the Supplier is
taking appropriate steps to comply with this Clause, including copies of any written
communications to and/or from Supplier Staff, and any minutes of meeting and any
other records which provide an audit trail of any discussions or exchanges with
Supplier Staff in connection with obligations as to confidentiality.
19.7
The provisions of Clauses 19.1 to 19.5 shall not apply to any Confidential Information
received by one Party from the other which:
19.8
19.7.1
is or becomes public knowledge (otherwise than by breach of this
Clause 19);
19.7.2
was in the possession of the receiving Party, without restriction as to its
disclosure, before receiving it from the disclosing Party;
19.7.3
is received from a third party who lawfully acquired it and who is under no
obligation restricting its disclosure;
19.7.4
is independently developed without access to the Confidential Information;
or
19.7.5
which must be disclosed pursuant to a statutory, legal or parliamentary
obligation placed upon the Party making the disclosure, including any
requirements for disclosure under Clause 20 (Transparency) and/or the
FOIA, or the Environmental Information Regulations pursuant to
Clause 23 (Freedom of Information).
Nothing in this Framework Agreement shall prevent the Authority from disclosing the
Supplier's Confidential Information (including the Management Information obtained
under Clause 15):
19.8.1
for the purpose of the examination and certification of the Authority's
accounts;
19.8.2
for the purpose of any examination pursuant to Section 6(1) of the
National Audit Act 1983 of the economy, efficiency and effectiveness with
which the Authority has used its resources; or
19.8.3
to any government department or any Other Contracting Body and the
Supplier hereby acknowledges that all government departments or
Contracting Bodies receiving such Supplier's Confidential Information may
further disclose the Supplier's Confidential Information to other
government departments or other Contracting Bodies on the basis that the
information is confidential and is not to be disclosed to a third party which
is not part of any government department or any Contracting Body.
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19.9
The Supplier acknowledges and agrees that information relating to Orders placed by
a Contracting Body, including Service Levels, pricing information (which includes
information on prices tendered in a further competition, even where an Order is not
placed) and the terms of any Call-Off Agreement may be shared with any Crown
bodies or any other Contracting Body from time to time. The Authority shall use
reasonable endeavours to notify the recipient of such information that its contents are
confidential.
19.10 Nothing in Clauses 19.1 to 19.5 shall prevent either Party from using any techniques,
ideas or Know-How gained during the performance of its obligations under this
Framework Agreement or the Call-Off Agreements in the course of its normal
business, to the extent that this does not result in a disclosure of the other Party's
Confidential Information or an infringement of the other Party's Intellectual Property
Rights.
19.11 In the event that the Supplier fails to comply with Clauses 19.1 to 19.5, the Authority
reserves the right to terminate this Framework Agreement with immediate effect by
notice in writing.
19.12 Clauses 19.1 to 19.5 shall operate without prejudice to and be read subject to the
application of the Official Secrets Acts 1911 to 1989 to any Confidential Information.
19.13 In order to ensure that no unauthorised person gains access to any Confidential
Information or any data obtained in performance of this Framework Agreement or the
Call-Off Agreements, the Supplier undertakes to maintain adequate security
arrangements that meet the requirements of Good Industry Practice.
19.14 The Supplier will immediately notify the Authority of any breach of security in relation
to Authority’s Confidential Information obtained in the performance of this Framework
Agreement and the Call-Off Agreements and will keep a record of such breaches.
The Supplier will use its best endeavours to recover such Authority’s Confidential
Information however it may be recorded. This obligation is in addition to the
Supplier's obligations under Clauses 19.1 to 19.5. The Supplier will co-operate with
the Authority in any investigation that the Authority considers necessary to undertake
as a result of any breach of security in relation to Authority’s Confidential Information.
19.15 The Supplier shall, at its own expense, alter any security systems used in connection
with the performance of this Framework Agreement or Call-Off Agreement at any
time during the Term at the Authority's request if the Authority believes (acting
reasonably) the Supplier has failed to comply with Clause 19.3.
20.
TRANSPARENCY
20.1
The Parties acknowledge that, except for any information which is exempt from
disclosure in accordance with the provisions of the FOIA, the content of this
Framework Agreement is not Confidential Information. The Authority shall be
responsible for determining in its absolute discretion whether any of the content of
the Framework Agreement is exempt from disclosure in accordance with the
provisions of the FOIA.
20.2
Notwithstanding any other term of this Framework Agreement, the Supplier hereby
gives his consent for the Authority to publish the Framework Agreement in its
entirety, (subject to any information that is exempt from disclosure in accordance with
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the provisions of FOIA redacted) including from time to time agreed changes to the
Framework Agreement.
20.3
The Authority may consult with the Supplier to help with its decision regarding any
exemptions under Clause 20.1 but the Authority shall have the final decision in its
absolute discretion.
20.4
The Supplier shall assist and cooperate with the Authority to enable the Authority to
publish this Framework Agreement.
21.
OFFICIAL SECRETS ACTS
21.1
The Supplier shall comply with and shall ensure that the Supplier Staff comply with,
the provisions of:
21.1.1
the Official Secrets Act 1911 to 1989; and
21.1.2
section 182 of the Finance Act 1989.
21.2
In the event that the Supplier or the Supplier’s Staff fails to comply with this
Clause 21, the Authority reserves the right to terminate this Framework Agreement
by giving notice in writing to the Supplier.
22.
DATA PROTECTION
22.1
With respect to the Parties' rights and obligations under this Framework Agreement,
the Parties agree that the Authority is the Data Controller and that the Supplier is the
Data Processor.
22.2
The Supplier shall:
22.2.1
Process the Personal Data only in accordance with instructions from the
Authority (which may be specific instructions or instructions of a general
nature as set out in this Framework Agreement or as otherwise notified by
the Authority to the Supplier during the Term);
22.2.2
Process the Personal Data only to the extent, and in such manner, as it
necessary for the provision of the Services or as is required by Law or any
Regulatory Body;
22.2.3
implement appropriate technical and organisational measures to protect
the Personal Data against unauthorised or unlawful processing and
against accidental loss, destruction, damage, alteration or disclosure.
These measures shall be appropriate to the harm which might result from
any unauthorised or unlawful Processing, accidental loss, destruction or
damage to the Personal Data and having regard to the nature of the
Personal Data which is to be protected;
22.2.4
take all reasonable steps to ensure the reliability of any Supplier Staff who
have access to the Personal Data;
22.2.5
obtain prior Approval from the Authority in order to transfer the Personal
Data to any Sub-Contractors or Affiliated Company for the provision of the
Services;
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22.2.6
ensure that all Supplier Staff required to access the Personal Data are
informed of the confidential nature of the Personal Data and comply with
the obligations set out in this Clause 22;
22.2.7
ensure that none of Supplier’s Staff publish, disclose or divulge any of the
Personal Data to any third party unless directed in writing to do so by the
Authority;
22.2.8
notify the Authority within five (5) Working Days if it receives:
22.2.9
22.2.10
22.2.8.1
a request from a Data Subject to have access to that person's
Personal Data; or
22.2.8.2
a complaint or request relating to the Authority's obligations
under the Data Protection Legislation;
provide the Authority with full cooperation and assistance in relation to any
complaint or request made, including by:
22.2.9.1
providing the Authority with full details of the complaint or
request;
22.2.9.2
complying with a data access request within the relevant
timescales set out in the Data Protection Legislation and in
accordance with the Authority's instructions;
22.2.9.3
providing the Authority with any Personal Data it holds in
relation to a Data Subject (within the timescales required by
the Authority; and
22.2.9.4
providing the Authority with any information requested by the
Authority;
The Supplier shall:
22.2.10.1 permit the Authority or the Authority’s Representative (subject
to
the
reasonable
and
appropriate
confidentiality
undertakings), to inspect and audit, the Supplier's data
Processing activities (and/or those of its agents, subsidiaries
and Sub-Contractors) and comply with all reasonable requests
or directions by the Authority to enable the Authority to verify
and/or procure that the Supplier is in full compliance with its
obligations under this Framework Agreement;
22.2.10.2 provide a written description of the technical and organisational
methods employed by the Supplier for Processing Personal
Data (within the timescales required by the Authority); and
22.2.10.3 not cause or permit to be processed and/or otherwise
transferred outside the European Economic Area any Personal
Data supplied to it by the Authority or any Other Contracting
Body without the prior written consent of the Authority or
Contracting Body concerned and, where the Authority or Other
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Contracting Body concerned consents to Processing and/or
transfer outside the European Economic Area, to comply with:
22.2.11
(a)
the obligations of a Data Controller under the Eighth
Data Protection Principle set out in Schedule 1 of the
Data Protection Act 1998 by providing an adequate
level of protection to any Personal Data that is
transferred; and
(b)
any reasonable instructions notified to it by the
Authority or Contracting Body concerned.
The Supplier shall comply at all times with the Data Protection Legislation
and shall not perform its obligations under this Framework Agreement in
such a way as to cause the Authority to breach any of its applicable
obligations under the Data Protection Legislation.
23.
FREEDOM OF INFORMATION
23.1
The Supplier acknowledges that the Authority is subject to the requirements of the
FOIA and the Environmental Information Regulations and shall assist and co-operate
with the Authority to enable the Authority to comply with its Information disclosure
obligations.
23.2
The Supplier shall and shall procure that its Sub-Contractors shall:
23.2.1
transfer to the Authority all Requests for Information that it receives as
soon as practicable and in any event within two (2) Working Days of
receiving a Request for Information;
23.2.2
provide the Authority with a copy of all Information, relevant to a Request
for Information, in its possession or power, in the form that the Authority
requests within five (5) Working Days (or such other period as the
Authority may specify) of the Authority's request; and
23.2.3
provide all necessary assistance reasonably requested by the Authority to
enable the Authority to respond to the Request for Information within the
time for compliance set out in section 10 of the FOIA or regulation 5 of the
Environmental Information Regulations.
23.3
The Authority shall be responsible for determining in its absolute discretion and
notwithstanding any other provision in this Framework Agreement or any other
agreement whether the Commercially Sensitive Information and/or any other
Information is exempt from disclosure in accordance with the provisions of the FOIA
or the Environmental Information Regulations.
23.4
In no event shall the Supplier respond directly to a Request for Information unless
expressly authorised to do so by the Authority.
23.5
The Supplier acknowledges that (notwithstanding the provisions of this Clause 23)
the Authority may, acting in accordance with 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 Act 2000 ("the Code"), be obliged under the FOIA, or the
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Environmental Information Regulations to disclose information concerning the
Supplier or the Services:
23.5.1
in certain circumstances without consulting the Supplier; or
23.5.2
following consultation with the Supplier and having taken their views into
account, provided always that where Clause 23.5 applies the Authority
shall, in accordance with any recommendations of the Code, take
reasonable steps, where appropriate, to give the Supplier advanced
notice, or failing that, to draw the disclosure to the Supplier's attention
after any such disclosure.
23.6
The Supplier shall ensure that all Information is retained for disclosure in accordance
with Clause 17 (Records and Audit Access) and shall permit the Authority to inspect
such records as requested from time to time.
23.7
The Supplier acknowledges that the Commercially Sensitive Information listed in
Framework Schedule 12 (Commercially Sensitive Information) is of indicative value
only and that the Authority may be obliged to disclose it in accordance with
Clause 23.5.
24.
PUBLICITY AND BRANDING
24.1
Subject to Clause 25 (Marketing), the Supplier shall not make any press
announcements or publicise this Framework Agreement or its contents in any way
without the Authority's prior written Approval.
24.2
The Supplier shall take all reasonable steps to ensure that its Staff, servants,
employees, agents, Sub-Contractors, suppliers, professional advisors and
consultants comply with Clause 24.1.
24.3
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
Act 1983 or otherwise.
24.4
The Supplier shall not do anything or cause anything to be done, which may damage
the reputation of the Authority or bring the Authority into disrepute.
24.5
The Supplier shall at all times during the Term on written demand fully indemnify the
Authority and keep the Authority fully indemnified against all losses, incurred by,
awarded against or agreed to be paid by the Supplier arising out of any claim or
infringement or alleged infringement (including the defence of such infringement or
alleged infringement) resulting from the Supplier's use of the Government
Procurement Service logo.
25.
MARKETING
25.1
The Supplier shall undertake marketing of this Framework Agreement and the
Services on behalf of Other Contracting Bodies in accordance with the provisions of
Framework Schedule 10 (Marketing) during the Term.
25.2
The Supplier shall obtain the Authority's Approval prior to publishing any content in
relation to this Framework Agreement on any Electronic Market Place and the
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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 shall 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.
PART FOUR:FRAMEWORK AGREEMENT TERMINATION AND SUSPENSION
26.
TERMINATION
26.1
Termination on Bribery and Corruption
The Authority may terminate this Framework Agreement by serving notice on the
Supplier in writing with effect from the date specified in such notice where the
conduct prohibited in Clauses 9.1 or 9.2 (Prevention of Bribery and Corruption) has
occurred.
26.2
Termination in relation to Conflict of Interest
The Authority may terminate this Framework Agreement by serving notice on the
Supplier in writing with effect from the date specified in such notice where the
Supplier is in breach of Clause 10.3 (Conflict of Interest).
26.3
Termination in relation to Fraud
The Authority may terminate this Framework Agreement by serving notice on the
Supplier in writing with effect from the date specified in the notice where the conduct
prohibited in Clause 11.3 (Safeguard against Fraud) has occurred.
26.4
Termination on Audit
The Authority may terminate this Framework Agreement by serving notice in writing
with effect from the date specified in such notice in the circumstances set out in
Clause 17.9 (Records and Audit Access).
26.5
Termination on Breach of Obligations of Confidentiality
The Authority may terminate this Framework Agreement by serving notice on the
Supplier in writing with effect from the date specified in such notice where the
Supplier fails to comply with Clauses 19.1 to 19.5 (Confidentiality).
26.6
Termination in relation to Official Secrets Act
The Authority may terminate this Framework Agreement by serving notice on the
Supplier in writing with effect from the date specified in such notice where the
Supplier is in breach of its obligations under Clause 21 (Official Secrets Acts).
26.7
Termination on Failure to Agree Variation
The Authority may terminate this Framework Agreement by serving notice on the
Supplier in writing with effect from the date specified in such notice where the Parties
fail to agree to a variation pursuant to Clause 32.1 (Variation in General).
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26.8
Termination on Default
The Authority may terminate this Framework Agreement by serving written notice on
the Supplier with effect from the date specified in such notice where the Supplier
commits a Material Default and if:
26.9
26.8.1
the Supplier has not remedied the Material 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 specifying
the Default and requesting it to be remedied; or
26.8.2
the Material Default is not, in the reasonable opinion of the Authority,
capable of remedy.
Termination on Consistent Failure
The Authority may terminate this Framework Agreement by serving notice on the
Supplier in writing with effect from the date specified in such notice where a
Consistent Failure has occurred.
26.10 Termination on Financial Standing
The Authority may terminate this Framework Agreement by serving notice on the
Supplier in writing with effect from the date specified in such notice where (in the
reasonable opinion of the Authority), there is a material detrimental change in the
financial standing and/or the credit rating of the Supplier which:
26.10.1
adversely impacts on the Supplier's ability to supply the Services under
this Framework Agreement; or
26.10.2
could reasonably be expected to have an adverse impact on the Suppliers
ability to supply the Services under this Framework Agreement.
26.11 Termination on Insolvency
The Authority may terminate this Framework Agreement with immediate effect by
notice in writing where the Supplier is a company and in respect of the Supplier:
26.11.1
a proposal is made for a voluntary arrangement within Part I of the
Insolvency Act 1986 or of any other composition scheme or arrangement
with, or assignment for the benefit of, its creditors; or
26.11.2
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
26.11.3
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 Act 1986; or
26.11.4
a receiver, administrative receiver or similar officer is appointed over the
whole or any part of its business or assets; or
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26.11.5
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
26.11.6
it is or becomes insolvent within the meaning of section 123 of the
Insolvency Act 1986; or
26.11.7
being a "small company" within the meaning of section 382(3) of the
Companies Act 2006, a moratorium comes into force pursuant to
Schedule A1 of the Insolvency Act 1986; or
26.11.8
any event analogous to those listed in Clauses 26.11.1 to Clause 26.11.7
(inclusive) occurs under the law of any other jurisdiction.
26.12 Termination on Change of Control
26.12.1
The Supplier shall notify the Authority immediately in writing if the Supplier
undergoes a change of control within the meaning of Section 450 of the
Corporation Tax Act 2010 ("Change of Control") and provided this does
not contravene any Law shall notify the Authority immediately in writing of
any circumstances suggesting that a Change of Control is planned or in
contemplation. The Authority may terminate this Framework Agreement
by giving notice in writing to the Supplier with immediate effect within six
(6) Months of:
26.12.1.1 being notified in writing that a Change of Control has occurred;
or
26.12.1.2 where no notification has been made, the date that the
Authority becomes aware of the Change of Control,
if it believes, acting reasonably, that such change is likely to have an adverse effect
on the provision of the Services, but it shall not be permitted to terminate this
Framework Agreement where an Approval was granted prior to the Change of
Control.
26.13 Termination in relation to Guarantee (Not Applicable to this Framework Agreement)
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26.14 Termination of Call-Off Agreement
The Authority may terminate this Framework Agreement by serving notice on the
Supplier in writing with effect from the date specified in such notice where a
Contracting Body terminates a Call-Off Agreement.
26.15 Termination by the Authority without Cause
The Authority shall have the right to terminate this Framework Agreement, or to
terminate the provisions of any part of this Framework Agreement with effect from at
any time following nine (9) Months after the Commencement Date by giving at least
three (3) Months' written notice to the Supplier.
26.16 Partial Termination
26.17 The Authority is entitled to terminate all or part of this Framework Agreement
pursuant to this Clause 26, provided always that the parts of this Framework
Agreement not terminated can operate effectively to deliver the intended purpose of
this Framework Agreement.
26.18 Termination in relation to Value for Money
The Authority may terminate this Framework Agreement by serving notice on the
Supplier in writing with effect from the date specified in such notice if the Supplier
refuses or fails to comply with its obligations as set out in paragraph 2 of Framework
Schedule 7 (Value for Money).
26.19 Termination on Critical Service Failure
The Authority may terminate this Framework Agreement by serving notice on the
Supplier in writing with effect from the date specified in such notice in the event of a
Critical Service Failure as set out in paragraph 5.4 of the Order Form.
26.20 Termination for continuing Force Majeure Event
Either Party may, by written notice to the other, terminate this Framework Agreement
if a Force Majeure Event endures for a continuous period of more than one hundred
and twenty (120) Working Days.
27.
SUSPENSION OF SUPPLIER'S APPOINTMENT
27.1
Without prejudice to the Authority's rights to terminate this Framework Agreement as
set out in Clause 26 (Termination), or if the Authority reasonably believes that a
Consistent Failure has occurred, the Authority may suspend the Supplier's
appointment to provide Services to Contracting Bodies 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 Order during such suspension period.
27.2
The Parties acknowledge that suspension shall not affect the Supplier's obligation to
perform any existing Call-off Agreements concluded prior to the suspension notice. If
the Authority provides notice to the Supplier in accordance with this Clause 27, the
Supplier's appointment under this Framework Agreement shall be suspended for the
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period set out in the notice or such other period notified to the Supplier by the
Authority in writing from time to time.
28.
CONSEQUENCES OF TERMINATION AND EXPIRY
28.1
Notwithstanding the service of a notice to terminate this Framework Agreement, the
Supplier shall continue to fulfil its obligations under this Framework Agreement until
the date of expiry or termination of this Framework Agreement or such other date as
required under this Clause 28.
28.2
Termination or expiry of this Framework Agreement shall not cause any Call-Off
Agreements to terminate automatically. For the avoidance of doubt, all Call-Off
Agreements shall remain in force unless and until they are terminated or expire in
accordance with the terms of the Call-Off Agreement and the Supplier shall continue
to pay any Management Charges due to the Authority in relation to such Call-Off
Agreements, notwithstanding the termination or expiry of this Framework Agreement.
28.3
If the Authority terminates the Framework Agreement under Clause 26.8, and then
makes other arrangements for the provision of the Services, the Authority shall be
entitled to recover from the Supplier the reasonable additional costs charged by a
third party for the provision of the Services and any additional expenditure incurred
by the Authority as a result of such a default. Where the Framework Agreement is
terminated under 26.8 no further payments shall be payable by the Authority until the
Authority has established the final cost of making those other arrangements.
28.4
Within ten (10) Working Days of the date of termination or expiry of this Framework
Agreement, the Supplier shall return to the Authority any 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 for a period of up to twelve (12) Months to comply with its
obligations under this Framework Agreement or under any Law, or such other period
as is reasonably necessary for such compliance.
28.5
The Authority shall be entitled to require access to data or information arising from
the provision of the Services by the Supplier until the latest of:
28.5.1
the expiry of a period of twelve (12) Months following termination or expiry
of this Framework Agreement; or
28.5.2
the expiry of a period of three (3) Months following the date on which the
Supplier ceases to provide Ordered Services under any Call-Off
Agreement.
28.6
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.
28.7
The provisions of Clauses 3 (Scope of Framework Agreement), 6 (Ordering
Procedures), 8 (Warranties and Representations), 9 (Prevention of Bribery and
Corruption), 10 (Conflicts of Interest), 11 (Safeguard Against Fraud), 12 (Call-Off
Agreement Performance), 15 (Provision of Management Information), 16
(Management Charge), 17 (Records and Audit Access), 19 (Confidentiality), 21
(Official Secrets Acts), 22 (Data Protection), 23 (Freedom of Information), 28
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(Consequences of Termination and Expiry), 29 (Liability), 30 (Insurance), 34 (Rights
of Third Parties), 37 (Waiver and Cumulative) and 47 (Law and Jurisdiction),
Framework Schedules (Services),
(Sub-Contractors),
(Charging Structure),
(Ordering Procedure), 7 (Value for Money), 8 (Management Information
Requirements), 9 (Self Audit Certificate), 11 (Guarantee), 12 (Commercially Sensitive
Information), 13 (Standards), 14 (Management), and, without limitation to the
foregoing, any other provision of this Framework Agreement which expressly or by
implication is to be performed or observed notwithstanding termination or expiry shall
survive the termination or expiry of this Framework Agreement.
PART FIVE: INSURANCE AND LIABILITY
29.
LIABILITY
29.1
Neither Party excludes or limits its liability for:
29.1.1
death or personal injury caused by its negligence, or that of its employees,
agents or Sub-Contractors; or
29.1.2
fraud or fraudulent misrepresentation by it or its employees.
29.2
Subject to Clauses 29.1, Clause 29.4 and Clause 29.5, each Party's total aggregate
liability in connection with this Framework Agreement in each twelve (12) Month
period during the Term (whether in contract, tort (including negligence), breach of
statutory duty or howsoever arising) shall be limited to a sum equivalent to one
hundred and twenty five percent (125%) of the Management Charge paid and
payable in the Year of this Framework Agreement during which the default occurred.
For the avoidance of doubt, the Parties acknowledge and agree that this Clause 29
shall not limit either Party's liability under any Call-Off Agreement and that each
Party's liability in relation to a Call-Off Agreement shall be as set out in the Call-Off
Agreement.
29.3
Subject to Clauses 29.1 and 29.2, the Supplier shall fully indemnify and keep
indemnified the Authority on demand in full from and against all claims, proceedings,
actions, damages, costs, expenses and any other liabilities whatsoever arising out of,
in respect of or in connection with the supply, or the late or purported supply, of the
Services or the performance or non-performance by the Supplier of its obligations
under this Framework Agreement and Supplier’s financial loss arising from any
advice given or omitted to be given by the Supplier, or any other loss which is caused
directly or indirectly by any act or omission of the Supplier.
29.4
The Supplier's liability in relation to the obligation to pay any Management Charges
which are due and payable to the Authority shall not be limited.
29.5
Subject to Clauses 29.1 and 29.6, in no event shall either Party be liable to the other
for any:
29.5.1
loss of profits;
29.5.2
loss of business;
29.5.3
loss of revenue;
29.5.4
loss of or damage to goodwill;
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29.6
29.5.5
loss of savings (whether anticipated or otherwise); and/or
29.5.6
any indirect, special or consequential loss or damage.
Subject to Clause 29.2 the Supplier shall be liable for the following types of loss,
damage, cost or expense which shall be regarded as direct and shall (without in any
way, limiting other categories of loss, damage, cost or expense which may be
recoverable by the Authority) be recoverable by the Authority:
29.6.1
the additional operational and/or administrative costs and expenses
arising from any Material Default;
29.6.2
the cost of procuring, implementing and operating any alternative or
replacement services to the Services; and
29.6.3
any regulatory losses, fines, expenses or other losses arising from a
breach by the Supplier of any Laws.
30.
INSURANCE
30.1
The Supplier shall effect and maintain the following insurances in relation to the
performance of its obligations under this Framework Agreement:
30.1.1
public liability insurance adequate to cover all risks in the performance of
this Framework Agreement from time to time with a minimum limit of two
million pounds sterling (£2,000,000) for each individual claim or such
higher limit as required by Contracting Bodies to be specified where
relevant in an invitation to Further Competition and as required by Law
from time to time;
30.1.2
employers' liability insurance with a minimum limit of five million pounds
sterling (£5,000,000) or such higher limit as required by Law from time to
time; and
30.1.3
professional indemnity insurance – Not Applicable
30.2
The Insurances referred to in Clause 30.1 shall be maintained with a reputable
insurance company, on terms that are no less favourable to those generally available
to a prudent supplier in respect of risks insured in the international insurance market.
30.3
Any excess or deductibles under the insurances referred to in Clause 30.1 shall be
the sole and exclusive responsibility of the Supplier.
30.4
The terms of any insurance or the amount of cover shall not relieve the Supplier of
any liabilities arising under this Framework Agreement.
30.5
The Supplier shall produce to the Authority, on request, copies of all insurance
policies referred to in this Clause 30 or a broker's verification of insurance to
demonstrate that the appropriate cover is in place, together with receipts or other
evidence of payment of the latest premiums due under those policies.
30.6
If, for whatever reason, the Supplier fails to give effect to and maintain the insurances
required by this Framework Agreement then the Authority may make alternative
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arrangements to protect its interests and may recover the premium and other costs of
such arrangements as a debt due from the Supplier.
30.7
The Supplier shall maintain the insurances referred to in Clause 30.1 in full force and
effect at all times from the Commencement Date until that date which is six (6) Years
following the expiration or earlier termination of this Framework Agreement or such
longer term as may be required by the Authority.
30.8
The Supplier shall use its reasonable endeavours to ensure that it shall not by its
acts or omissions cause any policy of insurance to be invalidated or voided.
PART SIX: OTHER PROVISIONS
31.
TRANSFER AND SUB-CONTRACTING
31.1
This Framework Agreement is personal to the Supplier and the Supplier shall not
assign, novate or otherwise dispose of or create any trust in relation to any or all
rights and obligations under this Framework Agreement or any part thereof without
the prior Approval of the Authority.
31.2
Notwithstanding the provisions of Clause 31.1, the Supplier shall be entitled to
Sub-Contract its obligations to supply the Services to those Sub-Contractors listed in
Framework Schedule 2 (Sub-Contractors). The Supplier shall ensure that terms are
included in any Sub-Contract permitted under this Framework Agreement which:
31.2.1
require the Supplier to pay any undisputed sum due to the relevant
Sub-Contractor within a specified period that does not exceed thirty (30)
calendar days from the date the Supplier receives the Sub-Contractor's
invoice; and
31.2.2
prohibit the Sub-Contractor from further sub-contracting any element of
the service provided to the Supplier without the Approval of the Authority.
31.3
The Supplier shall not substitute or remove a Sub-Contractor or appoint an additional
sub-contractor without the prior Approval of the Authority, such Approval not be
unreasonably withheld or delayed. Such consent shall not constitute Approval or
endorsement of such substitute or additional sub-contractor and the Supplier shall
remain responsible for the provision of the Ordered Services at all times.
31.4
The Authority may require the Supplier to terminate a Sub-Contract where it
considers that:
31.4.1
the Sub-Contractor may prejudice the provision of the Services or may be
acting contrary to the interests of the Authority;
31.4.2
the Sub-Contractor is considered to be unreliable and/or has not provided
reasonable services to its other customers; and/or
31.4.3
the Sub-Contractor employs unfit persons;
provided that such right shall not be exercised unreasonably, frivolously or
vexatiously.
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31.5
In the event that the Authority exercises its right pursuant to Clause 31.4, the
Supplier shall remain responsible for maintaining the provision of the Services.
31.6
Despite any permitted Sub-Contract pursuant to this Clause 31, 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. An obligation on the Supplier to do, or refrain from doing, any act or thing shall
include an obligation upon the Supplier to procure that its employees, staff, agents
and the Sub-Contractors', employees, staff and agents also do, or refrain from doing,
such act or thing.
31.7
The Authority shall be entitled to:
31.7.1
assign, novate or otherwise dispose of its rights and obligations under this
Framework Agreement or any part thereof to any Other Contracting Body;
or
31.7.2
novate this Framework Agreement to any other body (including any
private sector body) which substantially performs any of the functions that
previously had been performed by the Authority, provided that such
assignment, novation or disposals shall not increase the burden of the
Supplier's obligations under this Framework Agreement.
31.8
The Supplier shall enter into such agreement and/or deed as the Authority shall
reasonably require so as to give effect to any assignment, novation or disposal made
pursuant to Clause 31.7.
32.
VARIATIONS TO THIS FRAMEWORK AGREEMENT
32.1
Variation in General
32.1.1
32.1.2
Subject to Clause 32.2 (Legislative Change) and Framework Schedule 3
(Charging Structure), this Framework Agreement may not be varied
except where:
32.1.1.1
the Authority notifies the Supplier that it wishes to vary the
terms of this Framework Agreement and provides the Supplier
with full written details of any such proposed change; and
32.1.1.2
the Authority Representative and the Supplier Representative
acting reasonably, agree to the variation and a written variation
agreement is signed by the Authority Representative and the
Supplier Representative.
If, by the date thirty (30) Working Days after notification was given under
Clause 32.1.1.1 no agreement is reached by the Parties acting reasonably
in relation to any variation requested, the Authority may, by giving written
notice to the Supplier, either:
32.1.2.1
agree that the Parties shall continue to perform their
obligations under this Framework Agreement without the
variation; or
32.1.2.2
terminate this Framework Agreement with immediate effect.
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32.2
Legislative Change
32.2.1
32.2.1.1
a General Change in Law; or
32.2.1.2
a Specific Change in Law where the effect of that Specific
Change in Law on the Services is known at the
Commencement Date.
32.2.2
If a Specific Change in Law occurs or will occur during the Term (other
than those referred to in Clause 32.2.1.2, the Supplier shall notify the
Authority of the likely effects of that change, including whether any change
is required to the Services (or Ordered Services, as appropriate), the
Framework Prices or this Framework Agreement.
32.2.3
As soon as practicable after any notification in accordance with Clause
32.2.2, the Parties shall discuss and agree the matters referred to in that
Clause and any ways in which the Supplier can mitigate the effect of the
Specific Change of Law, including:
32.2.4
33.
The Supplier shall neither be relieved of its obligations under this
Framework Agreement nor be entitled to an increase the Framework
Prices and/or the Charges as the result of:
32.2.3.1
providing 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;
32.2.3.2
demonstrating that a foreseeable Specific Change in Law had
been taken into account by the Supplier before it occurred;
32.2.3.3
giving evidence as to how the Specific Change in Law has
affected the cost of providing the Services (or Ordered
Services, as appropriate).
Any increase in the Framework Prices or relief from the Supplier's
obligations agreed by the Parties pursuant to Clause 32.2.3 shall be
implemented by a written variation agreement signed by the Authority
Representative and the Supplier's Representative. For the avoidance of
doubt this Clause 32.2 shall not operate to alter any Charges paid or
payable by Contracting Bodies pursuant to any Call-off Agreements in
existence prior to the date of the increase in the Framework Prices.
GUARANTEE (NOT APPLICABLE TO THIS FRAMEWORK AGREEMENT)
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34.
RIGHTS OF THIRD PARTIES
34.1
Subject to Clause 34.2 below, a person who is not Party to this Framework
Agreement ("Third Party") has no right to enforce any term of this Framework
Agreement under the Contracts (Rights of Third Parties) Act 1999, but this does not
affect any right or remedy of any person which exists or is available otherwise than
pursuant to that Act.
34.2
Each and every Contracting Body may, with the Authority's prior written Approval,
enforce any of the following Clauses: 3 (Scope of Framework Agreement), 6
(Ordering Procedures), 7 (Assistance in Related Procurements), 8 (Warranties and
Representations), [33 (Guarantee)] and, without limitation, any other term of this
Framework Agreement which is for the benefit of the Other Contracting Body as a
third party beneficiary in accordance with the Contracts (Rights of Third Parties) Act
1999.
34.3
The Authority may act as agent and trustee for each Other Contracting Body and
enforce on behalf of that Other Contracting Body any Clause or term referred to in
Clause 34.2 and/or recover any loss, damage or liability suffered by that Other
Contracting Body in connection with a breach of any such Clause or term.
34.4
No consent of any third party is necessary for any rescission, variation (including any
release or compromise in whole or in part of liability) or termination of this Framework
Agreement or any one or more Clauses of it.
35.
FORCE MAJEURE
35.1
Subject to the remaining provisions of this Clause 35, either Party to this Framework
Agreement may claim relief from liability for non-performance of its obligations to the
extent this is due to a Force Majeure Event.
35.2
A Party cannot claim relief if the Force Majeure Event is attributable to its wilful act,
neglect or failure to take reasonable precautions against the relevant Force Majeure
Event.
35.3
An Affected Party cannot claim relief as a result of a failure or delay by any other
person in the performance of that other person's obligations under a contract with the
Affected Party (unless that other person is itself prevented from or delayed in
complying with its obligations as a result of a Force Majeure Event).
35.4
The Affected Party shall immediately give the other Party written notice of the Force
Majeure Event. The notification shall include details of the Force Majeure Event
together with evidence of its effect on the obligations of the Affected Party, and any
action the Affected Party proposes to take to mitigate its effect.
35.5
As soon as practicable following the Affected Party's notification, the Parties shall
consult with each other in good faith and use all reasonable endeavours to agree
appropriate terms to mitigate the effects of the Force Majeure Event and to facilitate
the continued performance of this Framework Agreement. Where the Supplier is the
Affected Party, it shall take all steps in accordance with Good Industry Practice to
overcome or minimise the consequences of the Force Majeure Event.
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35.6
The Affected Party shall notify the other Party as soon as practicable after the Force
Majeure Event ceases or no longer causes the Affected Party to be unable to comply
with its obligations under this Framework Agreement. Following such notification,
this Framework Agreement shall continue to be performed on the terms existing
immediately before the occurrence of the Force Majeure Event unless agreed
otherwise by the Parties.
36.
SEVERABILITY
36.1
If any provision of this Framework Agreement or related Call-Off Agreement is held
invalid, illegal or unenforceable for any reason, such provision shall be severed and
the remainder of the provisions hereof shall continue in full force without affecting the
remaining provisions of this Framework Agreement.
36.2
If a provision of this Framework Agreement or related Call-Off Agreement that is
fundamental to the accomplishment of the purpose of this Framework Agreement is
held to any extent to be invalid, the Authority and the Supplier shall immediately
commence good faith negotiations to remedy such invalidity.
37.
WAIVER AND CUMULATIVE REMEDIES
37.1
The rights and remedies provided by this Framework Agreement may be waived only
in writing by the Authority Representative or the Supplier Representative in a manner
that expressly states that a waiver is intended, and such waiver shall only be
operative with regard to the specific circumstances referred to.
37.2
Unless a right or remedy of the Authority is expressed to be an exclusive right or
remedy, the exercise of it by the Authority is without prejudice to the Authority's other
rights and remedies. Any failure to exercise or any delay in exercising a right or
remedy by either Party shall not constitute a waiver of that right or remedy or of any
other rights or remedies.
37.3
The rights and remedies provided by this Framework Agreement are cumulative and,
unless otherwise provided in this Framework Agreement, are not exclusive of any
right or remedies provided at Law or in equity or otherwise under this Framework
Agreement.
38.
RELATIONSHIP OF THE PARTIES
Nothing in this Framework Agreement is intended to create a partnership, or legal
relationship of any kind that would impose liability upon one Party for the act or
failure to act of the other Party, or to authorise either Party to act as agent for the
other Party. Neither Party shall have authority to make representations, act in the
name of, or on behalf of, or to otherwise bind the other Party.
39.
FURTHER ASSURANCES
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.
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40.
ENTIRE AGREEMENT
40.1
Without prejudice to Clause 8.1.4, this Framework Agreement constitutes the entire
agreement and understanding between the Parties in respect of the matters dealt
with in it and supersedes, cancels or nullifies any previous agreement between the
Parties in relation to such matters.
40.2
Each of the Parties acknowledges and agrees that in entering into this Framework
Agreement it does not rely on, and shall have no remedy in respect of, any
statement, representation, warranty or undertaking (whether negligently or innocently
made) other than as expressly set out in this Framework Agreement.
40.3
Nothing in this Clause 40 shall operate to exclude liability for Fraud or fraudulent
misrepresentation.
41.
NOTICES
41.1
Any notices given under or in relation to this Framework Agreement and Call-Off
Agreement shall be in writing by letter, (signed by or on behalf of the Party giving it)
sent by hand, post, registered post or by the recorded delivery service, by facsimile
transmission (fax to the address or fax number and for the attention of the relevant
Party set out in Clause 41.4 or to such other address as that Party may have
stipulated in accordance with Clause 41.5) or by electronic mail (confirmed by letter).
41.2
A notice shall be deemed to have been received:
41.2.1
if delivered personally, at the time of delivery;
41.2.2
in the case of pre-paid first class post, special or other recorded delivery
three (3) Working Days from the date of posting;
41.2.3
in the case of electronic communication, three (3) Working Days after
posting of a confirmation letter; and
41.2.4
in the case of fax, on the day of transmission if sent before 16:00 hours of
any Working Day and otherwise at 09:00 hours on the next Working Day
and provided that, at the time of transmission of a fax, an error-free
transmission report has been received by the sender.
41.3
In proving service, it shall be sufficient to prove that personal delivery was made, or
(including for the purposes of electronic mail confirmation letter) that the envelope
containing the notice was addressed to the relevant Party set out in Clause 41.4 (or
as otherwise notified by that Party) and delivered either to that address or into the
custody of the postal authorities as pre-paid first class post, special or other recorded
delivery or pre-paid airmail letter and in the case of fax, that a transmission report
generated from a fax machine evidences that the fax was transmitted to the relevant
fax number.
41.4
For the purposes of Clause 41.1, the address and fax number of each Party shall be:
41.4.1
For the Authority:
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Government Procurement Service
c/o HM Revenue & Customs
Adress:
Commercial Directorate,
5th Floor West, Ralli Quays, 3 Stanley Street,
Salford, M60 9LA.
For the attention of: Deborah Mylett,
Tel:
0161 827 0825
Fax:
0161 827 0270
Email: [email protected]
41.4.2
For the Supplier:
TNT UK Limited
Address: TNT Express House,
Holly Lane, Atherstone, Warwickshire, CV9 2RY
For the attention of: Jon Stockton, Head of Operations
Tel:
Fax:
Email:
01827 303030
01827 318824
[email protected]
41.5
Either Party may change its address for service by serving a notice in accordance
with this Clause 41.
41.6
For the avoidance of doubt, any notice given under this Framework Agreement shall
not be validly served if sent by electronic mail (email) and not confirmed by a letter.
42.
INTELLECTUAL PROPERTY RIGHTS AND INDEMNITY
42.1
Save as granted under this Framework Agreement, neither the Authority nor the
Supplier shall acquire any right, title or interest in the other's Pre-Existing Intellectual
Property Rights.
42.2
The Supplier shall ensure and procure that the availability, provision and use of the
Services and the performance of the Supplier's responsibilities and obligations
hereunder shall not infringe any Intellectual Property Rights of any Third party.
42.3
With respect to the Supplier's obligations under this Framework Agreement, the
Supplier warrants and represents that:
42.3.1
it owns, has obtained or shall obtain valid licences for all Intellectual
Property Rights that are necessary to perform its obligations under this
Framework Agreement and/or any Call-Off Agreement which may be
entered with the Authority or Other Contracting Bodies and shall maintain
the same in full force and effect;
42.3.2
it has and shall continue to take all steps, in accordance with Good
Industry Practice, to prevent the introduction, creation or propagation of
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any disruptive elements (including any virus, worms and/or Trojans,
spyware or other malware) into systems, data, software or Authority
Confidential Information (held in electronic form (owned by or under the
control of, or used by the Authority and/or Other Contracting Bodies;
42.4
The Supplier shall during and after the Term of this Framework Agreement indemnify
and keep indemnified the Authority on demand in full from and against all claims,
proceedings, suits, demands, actions, costs, expenses (including legal costs and
disbursements on a solicitor and client basis), losses and damages and any other
liabilities whatsoever arising from, out of, in respect of or incurred by reason of any
infringement or alleged infringement (including the defence of such alleged
infringement) of any Intellectual Property Right by the:
42.4.1
availability, provision or use of the Services (or any parts thereof); and
42.4.2
performance of the Supplier's responsibilities and obligations hereunder.
42.5
The Supplier shall promptly notify the Authority if any claim or demand is made or
action brought against the Supplier for infringement or alleged infringement of any
Intellectual Property Right that may affect the availability, provision or use of the
Services (or any deliverables or parts thereof) and/or the performance of the
Supplier's responsibilities and obligations hereunder.
42.6
If a claim or demand is made or action brought to which Clause 42.3 and/or 42.4 may
apply, or in the reasonable opinion of the Supplier is likely to be made or brought, the
Supplier may at its own expense and within a reasonable time either:
42.6.1
modify any or all of the affected Services without reducing the
performance and functionality of the same, or substitute alternative
services of equivalent performance and functionality for any or all of the
affected Services, so as to avoid the infringement or the alleged
infringement, provided that the terms herein shall apply mutatis mutandis
to such modified or substituted services and such substitution shall not
increase the burden on Contracting Bodies to a Call-Off Agreement; or
42.6.2
procure a licence to use the Services on terms that are reasonably
acceptable to the Authority; and
42.6.3
in relation to the performance of the Supplier's responsibilities and
obligations hereunder, promptly re-perform those responsibilities and
obligations;
42.6.4
Subject to full compliance with the Branding Guidance, the Supplier shall
be entitled to use the Government Procurement Service logo exclusively
in connection with the provision of the Services during the Term and for
no other purpose.
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43.
MALICIOUS SOFTWARE
43.1
The Supplier shall, as an enduring obligation throughout the Contract Period, use the
latest versions of anti-virus definitions and software available from an industry
accepted anti-virus software vendor to check for, contain the spread of, and minimise
the impact of Malicious Software in the ICT Environment (or as otherwise agreed
between the Parties).
43.2
Notwithstanding Clause 43.1, if Malicious Software is found, the Parties shall co
operate to reduce the effect of the Malicious Software and, particularly if Malicious
Software causes loss of operational efficiency or loss or corruption of Customer Data,
assist each other to mitigate any losses and to restore the Services to their desired
operating efficiency.
43.3
Any cost arising out of the actions of the Parties taken in compliance with the
provisions of Clause 43 shall be borne by the Parties as follows:
43.3.1
by the Supplier, where the Malicious Software originates from the
Customer Data (whilst the Customer Data was under the control of the
Supplier) unless the Supplier can demonstrate that such Malicious
Software was present and not quarantined or otherwise identified by the
Contracting Body when provided to the Supplier; and
43.3.2
by the Contracting Body if the Malicious Software originates from the
Contracting Body’s Software or the Customer Data (whilst the Customer
Data was under the control of the Contracting Body).
44.
COMPLAINTS HANDLING AND RESOLUTION
44.1
The Supplier shall notify the Authority of any complaints made by Other Contracting
Bodies, 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 such notice shall contain full details of the Supplier's plans to resolve such
complaint.
44.2
Without prejudice to any rights and remedies that a complainant may have at Law,
including under this Framework Agreement or a Call-Off Agreement, and without
prejudice to any obligation of the Supplier to take remedial action under the
provisions of this Framework Agreement or a Call-Off Agreement, 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.
44.3
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 its
resolution.
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45.
DISPUTE RESOLUTION
45.1
The Parties shall attempt in good faith to negotiate a settlement of any dispute
between them arising out of or in connection with this Framework Agreement within
twenty (20) Working Days of either Party notifying the other of the dispute and such
efforts shall involve the escalation of the dispute to the Authority Representative and
the Supplier Representative.
45.2
Nothing in this dispute resolution procedure shall prevent the Parties from seeking
from any court of competent jurisdiction an interim order restraining the other Party
from doing any act or compelling the other Party to do any act.
45.3
The obligations of the Parties under this Framework Agreement shall not be
suspended, cease or be delayed by the reference of a dispute to mediation or
arbitration pursuant to this Clause 46 and the Supplier and its employees, personnel
and associates shall comply fully with the requirements of this Framework Agreement
at all times.
45.4
If the dispute cannot be resolved by the Parties pursuant to Clause 46.1, the Parties
shall refer it to mediation pursuant to the procedure set out in Clause 46.5 unless the
Authority considers that the dispute is not suitable for resolution by mediation.
45.5
If a dispute is referred to mediation the parties shall comply with the following
provisions:
45.5.1
a neutral adviser or mediator ("the Mediator") shall be chosen by
agreement between the Parties or, if they are unable to agree upon a
Mediator within ten (10) Working Days after a request by one Party to the
other or if the Mediator agreed upon is unable or unwilling to act, either
Party shall within ten (10) Working Days from the date of the proposal to
appoint a Mediator or within ten (10) Working Days of notice to either
Party that he is unable or unwilling to act, apply to the CEDR to appoint a
Mediator;
45.5.2
the Parties shall within ten (10) Working Days of the appointment of the
Mediator meet with him in order to agree a programme for the exchange
of all relevant information and the structure to be adopted for negotiations
to be held. If considered appropriate, the Parties may at any stage seek
assistance from the CEDR to provide guidance on a suitable procedure;
45.5.3
unless otherwise agreed, all negotiations connected with the dispute and
any settlement agreement relating to it shall be conducted in confidence
and without prejudice to the rights of the Parties in any future
proceedings;
45.5.4
if the Parties reach agreement on the resolution of the dispute, the
agreement shall be reduced to writing and shall be binding on the Parties
with effect from its signature by their duly authorised representatives;
45.5.5
failing agreement, either of the Parties may invite the Mediator to provide
a non-binding but informative opinion in writing. Such an opinion shall be
provided on a without prejudice basis and shall not be used in evidence in
any proceedings relating to this Framework Agreement without the prior
written consent of both Parties; and
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45.5.6
if the Parties fail to reach agreement in the structured negotiations within
sixty (60) Working Days of the Mediator being appointed, or such longer
period as may be agreed by the Parties, then any dispute or difference
between them may be referred to arbitration pursuant to Clause 46.6.
45.6
If a dispute cannot be resolved by the Parties pursuant to Clause 46.5 the Parties
shall refer it to arbitration pursuant to the procedure set out in Clause 46.7 unless the
Authority considers that it is not suitable for resolution by arbitration.
45.7
If a dispute is referred to arbitration the Parties shall comply with the following
provisions:
46.
45.7.1
the arbitration shall be governed by the provisions of the Arbitration Act
1996 and the LCIA procedural rules shall be applied and are deemed to
be incorporated into this Framework Agreement (save that in the event of
any conflict between those rules and this Framework Agreement, this
Framework Agreement shall prevail);
45.7.2
the decision of the arbitrator shall be binding on the Parties (in the
absence of any material failure by the arbitrator to comply with the LCIA
procedural rules);
45.7.3
the tribunal shall consist of a sole arbitrator to be agreed by the Parties
and in the event that the Parties fail to agree the appointment of the
arbitrator within ten (10) Working Days or, if the person appointed is
unable or unwilling to act, the arbitrator shall be appointed by the LCIA;
and
45.7.4
the arbitration proceedings shall take place in London.
FRAMEWORK AGREEMENT MANAGEMENT
The Parties shall manage this Framework Agreement in accordance with Schedule
14 (Framework Management).
47.
LAW AND JURISDICTION
This Framework Agreement and/or any non-contractual obligations or matter arising
out of or in connection with it, shall be governed by and construed in accordance with
the Laws of England and Wales and without prejudice to the dispute resolution
procedure set out in Clause 46 (Dispute Resolution) each Party agrees to submit to
the exclusive jurisdiction of the courts of England and Wales.
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48.
CONTRACT EXECUTION/SIGNATORIES
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
……………………………………………….
Signed for and on behalf of the AUTHORITY
Signature:
……………………………………………….
Name:
……………………………………………….
Position:
……………………………………………….
Date
……………………………………………….
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FRAMEWORK SCHEDULE 1: SERVICES
Part 1:
THE SPECIFICATION –
1.1
HM Revenue and Customs (HMRC) and the Department for Work and Pensions
(DWP) have jointly developed the specification for a Dedicated Courier Network
Service on behalf of the Government Procurement Service (GPS).
1.2
The Dedicated Courier Network Service allows a Contracting Body(s) to establish a
network of sites, including 3rd Party Organisation sites, such as suppliers who are
business critical, for the secure movement of internal untracked items and internal
tracked items through the network. The service also makes allowance for items
collected from locations inside the dedicated network to be delivered to locations
outside the dedicated network.
1.3
The service provider will be required to:
a) Assign an appropriate number of dedicated vehicles for secure collection of items
from specified locations at allocated times daily.
b) Provide secure segregated sortation areas at the service provider’s premises(s).
Sortation of items will be conducted by dedicated and trained staff.
c) Assign an appropriate number of dedicated vehicles for secure delivery of items to
specified locations at allocated times daily.
d) Provide the following additional bespoke services:
• Secure GPS Tracked Boxes;
• Delivery and Collection of paper records to and from Remote Storage Facilities;
• Collection and Delivery of output from specialist suppliers;
• Distribution from print suppliers;
• Specialist daily movements; and
• Screening of couriered mail delivered.
1.4
The full specification, including the Service Levels and KPI’s applicable to the service,
is provided in the HMRC/DWP Part 2 - Call-Off Terms, Schedule 12 Specification
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FRAMEWORK SCHEDULE 2: SUB-CONTRACTORS
1.
Introduction
1.1
This Schedule 2 contains:
1.1.1 details of the Sub-Contractors to be engaged or employed by the
Supplier in the provision of Services pursuant to individual Call-Off Agreements;
and
1.1.2 the procedure to select, appoint and manage Sub-Contractors.
2.
Notification
2.1
The Supplier shall notify the Authority in writing, which for the purposes of this
notification may be via electronic mail (email) confirmed by a letter in accordance with
Clause 41.1, of any additions to the list of Sub-Contractors specified in paragraph 3.1
before appointing any such additional Sub-Contractor to undertake any obligation
pursuant to a Call-Off Agreement.
2.2
Such notification will contain confirmation that the selection and appointment of the
Sub-Contractor was in accordance with the procedure to select, appoint and manage
Sub-Contractors set out in paragraph 4.
3.
Sub-Contractors
3.1
Table of Sub-Contractors:
Name and full contact details
Obligation
[insert Sub-Contractor details]
[insert Sub-Contractor obligation(s)]
[insert Sub-Contractor details]
[insert Sub-Contractor obligation(s)]
[insert Sub-Contractor details]
[insert Sub-Contractor obligation(s)]
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4.
Procedure to select, appoint and manage Sub-Contractors
4.1
The Supplier shall comply with requirements under Clause 31 of this Framework
Agreement.
4.2
The Supplier shall ensure that it puts in place and maintains throughout the Term
robust systems and procedures for the management of Sub-Contractors utilised by the
Supplier in relation to the Framework Agreement, to ensure that the work carried out
by such Sub-Contractor is delivered in the manner and to the standard required by this
Framework Agreement and any Call-Off Agreement entered into pursuant to it. Such
management systems shall include effective monitoring of service delivery and price
management approaches.
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FRAMEWORK SCHEDULE 3: CHARGING STRUCTURE
1.
General Provisions
1.1
The Dedicated Courier Network Service Framework Agreement Charging Structure
detailed in this schedule was established using a scenario network of Client and 3rd
Party Sites provided by the Department for Work and Pensions (DWP) and HM
Revenue and Customs (HMRC).
1.2
The Dedicated Courier Network service described in the scenario was for an annual
movement of approximately 12M internal untracked items, 2M internal tracked items
through a network of approx 1500 DWP and 670 HMRC sites, including 3rd Party
Sites, such as suppliers who are business critical.
1.3
The Charging Structure also takes account of the requirement for approximately 180k
of items per annum collected from locations inside the dedicated network to be
delivered to locations outside the dedicated network.
1.4
The Charging Structure consisted of two elements:
1.4.1
1.4.2
Fixed Annual Charge taking into account the site numbers, locations, and
collection/delivery times provided as part of the specification; and
Variable charges
As detailed in the following tables - REDACTED
1.5
The DCN Fixed Charges listed in Table 1 of this Schedule are based upon a bespoke
solution developed in response to a Client’s specification of need. As such these
charges are indicative only and Clients wishing to make use of a Dedicated Courier
Network Service will need to provide the Supplier with a specification detailing the site
numbers, locations, and collection/delivery times provided as part of the specification
to establish the fixed charge elements for their proposed network. The cost of a
dedicated network is not driven by a single factor but is principally driven by the
number of vehicles and the size of the vehicles which is determined from the variable
factors detailed above. The Supplier will provide an appropriate price change
mechanism within the Call Off Agreement(s).
1.6
All charges listed are exclusive of VAT.
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FRAMEWORK SCHEDULE 4: ORDER FORM & CALL-OFF TERMS
General Provisions
1.1
The Authority’s standard Call Off Agreement template must be used for call offs
made from this Framework Agreement.
1.2
The Call Off Agreement template is in two parts:
Part 1: Order form
Part 2: Call-Off Terms
1.3
The Order Form & Call Off is available from the Authority upon request.
1.4
Partially completed Call Off Agreement templates in respect of the HMRC and DWP
Dedicated Courier Network were provided as part of the Tender Documentation.
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FRAMEWORK SCHEDULE 5: ORDERING PROCEDURE
1.
AWARD PROCEDURE
1.1
If the Authority or any Other Contracting Body decides to source the Services
through this Framework Agreement then it will award its Services Requirements in
accordance with the procedure in this Framework Schedule 5 (Ordering Procedure)
and the requirements of the Regulations and the Guidance.
1.2
If a Contracting Body can determine that:
1.2.1 its Services Requirements can be met by the Framework Supplier's
catalogue of the Services as set out in Framework Schedule 1 (Services);
1.2.2 the Framework Supplier provides the most economically advantageous
solution in respect of the Contracting Body's Services Requirements; and
1.2.3 all of the terms of the proposed contract are laid down in this Framework
Agreement and the Call-Off Terms do not require amendment or any
supplementary terms and conditions;
then the Contracting Body may place an Order in accordance with the Direct
Ordering Procedure set out in paragraph 2 below.
2.
DIRECT ORDERING WITHOUT A FURTHER COMPETITION
2.1
Subject to paragraph 1.2 above any Contracting Body ordering the Services under
this Framework Agreement without holding a further competition shall:
2.1.1 develop a clear Statement of Requirements setting out its requirements for
the Services;
2.1.2 apply the Direct Award Criteria to the catalogue of the Services for all
Suppliers capable of meeting the Statement of Requirements in order to
establish which of the Framework Suppliers provides the most economically
advantageous solution; and
2.1.3 on the basis set out above, award its Services Requirements by placing an
Order with the successful Framework Supplier in accordance with paragraph
7 below.
3.
FURTHER COMPETITION PROCEDURE (NOT APPLICABLE)
4.
FURTHER COMPETITION E-AUCTIONS (NOT APPLICABLE)
5.
NO AWARD
Notwithstanding the fact that the Contracting Body has followed a procedure as set
out above in paragraph 2, the Contracting Body shall be entitled at all times to
decline to make an award for its Service Requirements. Nothing in this Framework
Agreement shall oblige any Contracting Body to place any Order for the Services.
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6.
RESPONSIBILITY FOR AWARDS
6.1
The Supplier acknowledges that each Contracting Body is independently
responsible for the conduct its award of Call-Off Agreements 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 Other Contracting Bodies in relation to this Framework
Agreement; or
6.1.2
the performance or non-performance of any Call-Off Agreements between
the Supplier and Other Contracting Bodies entered into pursuant to this
Framework Agreement.
7.
FORM OF ORDER
7.1
Subject to paragraphs 1 to 6 above, each Contracting Body may place an Order
with the Supplier by serving an order in writing in substantially the form set out in the
Call-Off Terms or such similar or analogous form agreed with the Supplier including
systems of ordering involving facsimile, electronic mail or other on-line solutions.
The Parties agree that any document or communication (including any document or
communication in the apparent form of an Order) which is not in the form prescribed
by this paragraph 7 shall not constitute an Order under this Framework Agreement.
7.2
The Contracting Body in placing an Order pursuant to paragraph 7.1 above shall
enter a Call-Off Agreement with the Supplier for the provision of the Services
referred to in that Order. A Call-Off Agreement shall be formed on the date of issue
of the Contracting Body's Order.
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FRAMEWORK SCHEDULE 6: AWARD CRITERIA
Part A: Direct Award
The following criteria and weightings used to set up this Framework Agreement shall be
applied to the Framework Suppliers' compliant tenders submitted through direct award.
Criteria Number
Criteria - ranked in order of importance
%
1
Cost Effectiveness.
45%
2
Technical Merit, Specification of Requirements
25%
3
Technical Merit, Security Provision.
10%
4
Quality
10%
5
Technical Merit, Overarching Requirements
5%
6
Environmental Characteristics
5%
Part B: Further Competition Award Criteria – (NOT APPLICABLE)
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FRAMEWORK SCHEDULE 7: VALUE FOR MONEY
1.
Background
1.1
The Supplier acknowledges that the Authority wishes to ensure that the Services,
represent value for money to the taxpayer throughout the Term of this Framework
Agreement.
1.2
This Framework Schedule 7 (Value for Money) sets out the following processes to
ensure this Framework Agreement represents value for money throughout the
Term:
1.2.1
Benchmarking;
1.2.2
Continuous Improvement;
1.2.3
Gains share.
2.
Benchmarking
2.1
Frequency Purpose and Scope of Benchmark Review
2.2
2.1.1
The Authority requires the Supplier to carry out Benchmark Reviews of
the Services.
2.1.2
Review during the six (6) Month period from the Commencement Date
nor at intervals of less than twelve (12) Months after any previous
Benchmark Review.
2.1.3
The purpose of a Benchmark Review will be to establish whether the
Benchmarked Rates are, individually and/or as a whole, Good Value.
2.1.4
The rates that are to be the Benchmarked Rates will be identified by the
Authority in writing.
Benchmarking Process
2.2.1
The Supplier shall produce and send to the Authority for Approval, a
draft plan for the Benchmark Review.
2.2.2
The plan must include:
2.2.2.1 a proposed timetable for the Benchmark Review;
2.2.2.2 a description of the benchmarking methodology to be used;
2.2.2.3 a description that demonstrates objectively and transparently
that the benchmarking methodology to be used is capable of
fulfilling the benchmarking purpose; and
2.2.2.4 a description of how the Supplier will scope and identify the
Comparison Group.
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2.2.3
The Authority must give notice in writing to the Supplier within ten (10)
Working Days after receiving the draft plan, advising whether it
approves the draft plan, or, if it does not approve the draft plan,
suggesting amendments to that plan. The Authority may unreasonably
withhold or delay its approval of the draft plan and any suggested
amendments must be reasonable.
2.2.4
Where the Authority suggests amendments to the draft plan under
paragraph 2.2.3, the Supplier must produce an amended draft plan.
Paragraph 2.2.2 shall apply to any amended draft plan.
2.2.5
Once it has received the approval of the draft plan, the Supplier shall:
i.
finalise the Comparison Group and collect data relating to
Comparable Rates. The selection of the Comparison Rates (both
in terms of number and identity) shall be a matter for the Supplier's
professional judgment using:
(a)
market intelligence;
(b)
the Supplier's own data and experience;
(c)
relevant published information; and
(d)
subject to paragraph 2.2.6 below, information from other
suppliers or purchasers on Comparable Rates;
ii.
by applying the adjustment factors listed in paragraph 2.2.7 and
from an analysis of the Comparable Rates derive the Equivalent
Rates Data;
iii.
using the Equivalent Rates Data calculate the Average Price;
iv.
determine whether or not each Benchmarked Rate is, and/or the
Benchmarked Rates as a whole are, Good Value.
2.2.6
The Supplier agrees to use its reasonable endeavours to obtain
information from other suppliers or purchasers on Comparable Rates.
2.2.7
In carrying out the benchmarking analysis the Supplier may have regard
to the following matters when performing a comparative assessment of
the Benchmarked Rates and the Comparable Rates in order to derive
Equivalent Rates Data:
2.2.7.1 the contractual terms and business environment under which
the Comparable Rates are being provided (including the scale
and geographical spread of the customers);
2.2.7.2 exchange rates;
2.2.7.3 major events;
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2.2.7.4 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.
2.3
Benchmarking Report
2.3.1 The Supplier shall prepare a Benchmarking Report and deliver it
simultaneously to the Authority, at the time specified in the plan
Approved under paragraph 2.2.3 of this Schedule, setting out its
findings. Those findings shall be required to:
2.3.1.1 include a finding as to whether or not a Benchmarked Rate
and/or whether the Benchmarked Rates as a whole are, Good
Value;
2.3.1.2 if any of the Benchmarked Rates are, individually or as a whole,
not Good Value, specify the changes that would be required to
make that Benchmarked Rate or the Benchmarked Rates as a
whole Good Value; and
2.3.1.3 include sufficient detail and transparency so that the Authority
can interpret and understand how the Supplier has calculated
whether or not the Benchmarked Rates are, individually or as a
whole, Good Value.
2.3.2 The Parties agree that any changes required to this Framework
Agreement identified in the Benchmarking Report may be implemented
at the direction of the Authority in accordance with Clause 32.
2.3.3 The Authority shall be entitled to publish the results of any
benchmarking of the Framework Prices to Other Contracting Bodies.
3.
CONTINUOUS IMPROVEMENT
3.1
The Supplier shall adopt a policy of continuous improvement in relation to the
Services pursuant to which it will regularly review with the Authority the Services
and the manner in which it is providing the Services with a view to reducing the
Authority's costs (including the Framework Prices), the costs of Contracting Bodies
and/or improving the quality and efficiency of the Services. The Supplier and the
Authority will provide to each other any information which may be relevant to
assisting the objectives of continuous improvement and in particular reducing costs.
3.2
Without limiting paragraph 3.1, the Supplier shall produce at the start of each Year a
plan for improving the provision of Services under all Call-Off Agreements and
reducing the Framework Prices (without adversely affecting the performance of the
Framework Agreement or any Call-off Agreement) during that Year ("Continuous
Improvement Plan") for the approval of the Authority.
The Continuous
Improvement Plan shall include, as a minimum, proposals in respect of the
following:
3.2.1
identifying the emergence of new and evolving technologies which could
improve the Services;
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3.2.2
identifying changes in behaviour at Contracting Bodies that result in a cost
saving and a reduction in the Framework Prices;
3.2.3
improving the way in which the Services are sold via the Framework
Agreement that may result in reduced Framework Prices;
3.2.4
identifying and implementing efficiencies in the Supplier's internal
processes and administration that may lead to cost savings and reductions
in the Framework Prices;
3.2.5
identifying and implementing efficiencies in the way the Authority and/or
Contracting Bodies interact with the Supplier that may lead to cost savings
and reductions in the Framework Prices;
3.2.6
identifying and implementing efficiencies in the Supplier's supply chain that
may lead to cost savings and reductions in the Framework Prices;
3.2.7
baselining the quality of the Supplier's Services and its cost structure and
demonstrating the efficacy of its Continuous Improvement Plan on each
element during the Term; and
3.2.8
measuring and reducing the sustainability impacts of the Supplier's
operations and supply-chains pertaining to the Services, and identifying
opportunities to assist Contracting Bodies in meeting their sustainability
objectives.
3.3
The initial Continuous Improvement Plan for the first (1) Year shall be submitted by
the Supplier to the Authority for approval within ninety (90) Working Days of the first
Order or six (6) Months following the Commencement Date, whichever is earlier.
Commencement Date.
3.4
The Authority shall notify the Supplier of its Approval or rejection of the proposed
Continuous Improvement Plan or any updates to it within twenty (20) Working Days
of receipt. Within ten (10) Working Days of receipt of the Authority's notice of
rejection and of the deficiencies of the proposed Continuous Improvement Plan, the
Supplier shall submit to the Authority a revised Continuous Improvement Plan
reflecting the changes required. Once Approved by the Authority, the programme
shall constitute the Continuous Improvement Plan for the purposes of this
Agreement.
3.5
Once the first Continuous Improvement Plan has been Approved in accordance with
paragraph 3.4:
3.6
3.5.1
the Supplier shall use all reasonable endeavours to implement any agreed
deliverables in accordance with the Continuous Improvement Plan; and
3.5.2
the Parties agree to meet as soon as reasonably possible following the
start of each quarter (or as otherwise agreed between the Authority and the
Supplier) to review the Supplier's progress against the Continuous
Improvement Plan.
The Supplier shall update the Continuous Improvement Plan as and when required
but at least once every Year (after the first (1) Year) in accordance with the
procedure and timescales set out in paragraph 3.4.
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3.7
All costs relating to the compilation or updating of the Continuous Improvement Plan
and the costs arising from any improvement made pursuant to it and the costs of
implementing any improvement, shall have no effect on and are included in the
Framework Prices.
3.8
Should the Supplier's costs in providing the Services to the Contracting Body be
reduced as a result of any changes implemented by the Authority and/or
Contracting Bodies, all of the cost savings shall be passed on to the Contracting
Body by way of a consequential and immediate reduction in the Framework Prices
for the Services.
4.
GAINS SHARE
4.1
At any time during the Term, the Supplier may make a proposal to a Contracting
Body and the Authority for a new or different way of providing the Services
("Proposal"). Any Proposal must clearly state that it is submitted for consideration
under this gains share provision and shall include:
4.1.1
a business case for the new or different way the Supplier intends to provide
the Services;
4.1.2
the potential direct and indirect cost savings for the Supplier and the
Contracting Body;
4.1.3
the potential direct and indirect costs which might be incurred by the
Supplier and the Contracting Body;
4.1.4
the potential benefit(s) (financial or otherwise) to the Supplier and the
Contracting Body;
4.1.5
the gains share ratio.
4.2
The Supplier, the Contracting Body and the Authority shall meet to discuss the
Proposal and shall attempt to agree the investment (financial or otherwise) to be
contributed by the Supplier and the Contracting Body, the estimated amount of
savings, the gains share ratio, the timing of any payments or adjustments and the
proportion of the costs and losses to be borne by the Supplier and the Contracting
Body should the Proposal be aborted or not meet its financial objectives. The
Supplier shall then submit a revised Proposal to the Contracting Body and the
Authority.
4.3
The Contracting Body shall assess the Proposal in conjunction with the Authority
and shall, in writing within one (1) Month (or such other time as agreed between the
parties), either accept it in principle, reject it or offer recommendations or
refinements in order for the Supplier to submit a revised Proposal.
4.4
the Authority and such agreement is put in writing, the Supplier shall formulate an
implementation plan which shall set out in more detail the way in which the Supplier
intends that the Proposal shall be implemented and the timetable for payments or
adjustments to any element of the prices paid in accordance with the agreed gains
share ratio ("Gains Share Implementation Plan").
4.5
Once the Gains Share Implementation Plan has been agreed between the parties,
the Supplier shall implement the Proposal in accordance with the plan and the
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Supplier and the Contracting Body shall comply with any obligations they have
assumed, including adjustments to the prices paid and obligations to make
payments. In each case these will be in accordance with the timetable outlined in
the Gains Share Implementation Plan.
4.6
Following implementation, the parties shall meet to discuss the implementation as a
whole, including a cost and benefit review.
4.7
The Supplier shall provide regular updates to the Authority on:
4.7.1
Gains share Proposals that have been submitted to Contracting Bodies for
consideration, and
4.7.2
the resultant benefits that have been derived from Proposals which have
been implemented.
Such information may be collated by the Authority as part of the Management
Information process.
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FRAMEWORK SCHEDULE 8: MANAGEMENT INFORMATION
2.
GENERAL REQUIREMENTS
2.1
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 8.
2.2
Under this Framework Agreement, the Supplier is required to supply three (3) sets
of Management Information:
2.2.1
Invoice line data supplied to GPS Data Warehouse, referenced below in
Paragraphs 2 to 7. This MI is used for the monitoring of high level
government spend and calculating the management charge.
2.2.2
Management Information supplied to GPS Category Management Team,
referenced below in Paragraphs 8 to 10. This MI is used to strategically
manage the Courier category and provide assurance over call-off contracts.
2.2.3
Contract Management Information supplied to individual Client contract
management teams, referenced below in Paragraph 11. This MI is
necessary for the day-to-day management of a contract.
3.
MANAGEMENT INFORMATION REPORTING FORMATS
3.1
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 MISO Reporting Template is set out within the Annex to
this Framework Schedule 8 and is entitled “Annex 1.1 MISO Reporting Template”.
3.2
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.
3.3
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.
3.4
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.
3.5
The Supplier may not make any amendment to the current MI Reporting Template
without the prior Approval of the Authority.
3.6
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.
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4.
FREQUENCY AND COVERAGE
4.1
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 Term and thereafter, until all transactions relating to Call-Off Agreements have
permanently ceased.
4.2
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.
4.3
The Supplier must return the MI Report for each Month even where there are no
transactions to report in the relevant Month; referred to as a "Nil Return". Reporting
a “Nil Return” must be performed via the function within the MISO system.
4.4
The Supplier must inform the Authority of any errors or corrections to the
Management Information:
4.4.1
in the next MI Report due immediately following discovery of the error by
the Supplier; or
4.4.2
as a result of the Authority querying any data contained in an MI Report.
5.
SUBMISSION OF THE MONTHLY MI REPORT
5.1
The completed MI Report shall be completed electronically and returned to the
Authority by uploading the electronic MI Report computer file to MISO in accordance
with the instructions provided in MISO.
5.2
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 5.1 above such as email. The Supplier agrees to comply with any such
instructions provided they do not materially increase the burden on the Supplier.
6.
DEFECTIVE MANAGEMENT INFORMATION
6.1
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.
6.2
MI Failures is when an MI Report:
6.2.1
contains any material errors or material omissions or a missing mandatory
field; or
6.2.2
is submitted using an incorrect MI Reporting Template; or
6.2.3
is not submitted by the Reporting Date (including where a Nil Return should
have been filed); or
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then the Authority may deem the failure to submit an MI Report correctly as an
"MI Failure".
6.3
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.
5.4
Meetings
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.
6.5
Admin Fees
6.5.1
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 5.5.2) in
respect of any MI Failures as they arise in subsequent Months.
6.5.2
If, following activation of the Authority's right to charge Admin Fee(s) in
respect of MI Failures pursuant to paragraph 5.5.1, the Supplier submits
the Monthly MI Report for two (2) consecutive Months and no MI Failure
occurs then the right to charge the Admin Fee(s) shall lapse. For the
avoidance of doubt the Authority shall not be prevented from exercising
such right again during the Term if the conditions in paragraph 5.5.1 are
met.
6.5.3
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.
6.5.4
The Authority shall notify the Supplier if any Admin Fees arise pursuant to
paragraph 5.5.1 above and shall be entitled to invoice the Supplier for such
Admin Fees which shall be payable in accordance with Clause 16 as a
supplement to the Management Charge. Any exercise by the Authority of
its rights under this paragraph shall be without prejudice to any other rights
that may arise pursuant to the terms of the Framework Agreement.
7.
DEFAULT MANAGEMENT CHARGE
7.1
If:
7.1.1
Three (3) MI Failures occur in any rolling six (6) Month period;
7.1.2
Three (3) 3 consecutive MI Failures occur;
then a "MI Default" shall be deemed to have occurred.
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7.2
If an MI Default occurs the Authority shall (without prejudice to any other rights or
remedies available to it under this Framework Agreement) be entitled to determine
the level of Management Charge in accordance with paragraph 7.3, which the
Supplier shall be required to pay to the Authority ("Default Management Charge").
7.3
The Default Management Charge shall be calculated as the higher of:
7.4
7.3.1
the average Management Charge paid or payable by the Supplier to the
Authority based on any Management Information submitted in the period
preceding the date on which the MI Default arose; or
7.3.2
the sum of five hundred pounds (£500).
If an MI Default occurs, the Authority shall be entitled to invoice the Supplier the
Default Management Charge calculated in accordance with paragraph 7.3 above:
7.4.1 in arrears for those Months in which an MI Failure occurred; and
7.4.2 on an ongoing Monthly basis,
7.4.3 until all and any MI Failures have been rectified to the reasonable
satisfaction of the Authority.
7.5
For the avoidance of doubt the Parties agree that the Default Management Charge
shall be payable as though it were the Management Charge due in accordance with
the provisions of Clause 16 of this Framework Agreement.
7.6
If the Supplier provides sufficient Management Information to rectify any MI Failures
to the satisfaction of the Authority and the Management Information demonstrates
that:
7.6.1 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
7.6.2 the Supplier has underpaid the Management Charges during the period
when a Default Management Charge was applied, then the Authority shall be
entitled to immediate payment of a balancing debt sum.
8.
TERMINATION RIGHTS
At its sole discretion the Authority has the right to terminate this Framework
Agreement pursuant to Clause 26 (Termination) in the event that a Consistent
Failure or a Material Default occurs.
9.
GPS CATEGORY REPORTING REQUIREMENTS
9.1
The Supplier agrees to provide timely, full, accurate and complete MI Reports to the
Authority which incorporates the data, in the correct format.
9.2
For the avoidance of doubt and to aid the provision of information, upon
commencement of the Framework Agreement, a template will be provided to the
Supplier which mirrors the requirements set out in Annex 1.2.
GPS Template: Services Framework Agreement
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9.3
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.
9.4
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.
9.5
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.
9.6
The Supplier may not make any amendment to the current MI Reporting Template
without the prior Approval of the Authority.
9.7
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.
10.
FREQUENCY AND COVERAGE
10.1
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 Term and thereafter, until all transactions relating to Call-Off Agreements have
permanently ceased.
11.
CALL-OFF MANAGEMENT INFORMATION REQUIREMENTS
5.1
The Supplier shall also supply such Management Information as may be required by
a Contracting Body in accordance with the terms of a Call-Off Agreement. The
format and frequency of this Management Information will be dictated within the calloff contract Schedule 6: Service Levels and Service Credits.
GPS Template: Services Framework Agreement
68
12.
ANNEX – MI REPORTING TEMPLATES
ANNEX 1.1 MISO Reporting Template
Please send your monthly MI return to [email protected]
By the contractual due date.
Thank You
Government Procurement Service
Collect & Validate Team
Please see the inserted table below with mandatory and desirable management
information requirements:
KEY:

Orange
= Mandatory Management Information

Blue
= Not Applicable to this Framework, kept for structural reasons
Template
Headings
M
M
M
Customer
URN
Customer
Postcode
Customer
Organisation
Source
Available from
Customer/GPS
System
(Please see
below)
Captured
when
customer
places
order/call off
Captured
when
customer
places
order/call off
Comments
Customer Unique
Reference Number
(URN). Unique
Reference Number
(URN) of the public
sector customer who
made the
procurement.
Post Code of the
public sector customer
who made the
procurement.
Name of the public
sector customer who
made the
procurement.
Format
Restrictions
THIS FIELD
MUST ONLY
CONTAIN A
WHOLE
NUMBER
MAX 20
CHARACTERS.
MAX 255
CHARACTERS.
"John Smith"
Supplier
generated
Customer Invoice Date
Date the invoice was
raised.
REQUIRED
FORMAT =
DD/MM/YYYY
Reference to identify
the invoice issued to
the customer.
MAX 50
CHARACTERS
M
Customer
Invoice Date
M
Customer
Invoice
Number
Supplier
generated
O
Customer
Invoice Line
Number
Supplier
generated
GPS Template: Services Framework Agreement
Potential Examples
MAX 20
CHARACTERS
69
M
M
M
Product /
Service
Group Level
1
Supplier
generated
Product
Code
Supplier
generated
Product /
Service
Description
Captured
when
customer
places
order/call off
M
UNSPSC
Supplier
generated
O
Manufacturer
/ Supplier
Code
Supplier
generated
Product/ Service
Group. Suppliers must
enter the product /
service grouping as
agreed with the
government
procurement service
category (e.g.
manufacture name,
consultant grade,
vehicle type etc)
Relates to the
UNSPSC Code below
Product / Service
Description. A short
description of the
Name of the Product/
Service being
invoiced.
The UNSPSC code of
the product or service
provided. The
UNSPSC table is
provided below.
MAX 255
CHARACTERS
"Delivery Vehicle",
"Domestic Package"
"International
Package","Mail
Screening" or
"Surcharge"
THIS FIELD
MUST ONLY
CONTAIN A
WHOLE
NUMBER
MAX 255
CHARACTERS
"London to Cardiff
movement"
THIS FIELD
MUST ONLY
CONTAIN A
WHOLE
NUMBER
MAX 255
CHARACTERS
MAX 255
CHARACTERS
M
Unit of
Purchase
Supplier
generated
See Comments
Column
M
Unit of
Purchase
Quantity
Supplier
generated
See Comments
Column
M
Price per
Unit
Supplier
generated
The price paid per unit
of issue.
GPS Template: Services Framework Agreement
THIS FIELD
MUST ONLY
CONTAIN
NUMBERS TO
2 DECIMAL
PLACES
THIS FIELD
MUST ONLY
CONTAIN
NUMBERS TO
2 DECIMAL
PLACES
If Product/Service
Group = "Delivery
Vehicle" or
"Surcharge" = EACH.
If Product/Service
Group = "Domestic
Package",
"International
Package" or "Mail
Screening" =
CONSIGNMENT
If Unit of Purchase
Quantity = EACH = 1.
If Unit of Purchase
Quantity =
CONSIGNMENT = 'X'
amount.
70
M
Quantity
Supplier
generated
See Comments
Column
M
Total Charge
(Ex VAT)
Supplier
generated
M
VAT
Applicable
Supplier
generated
The amount (£) being
invoiced for this line of
the invoice.
State if VAT is
applicable or not to the
product or service
provided.
M
VAT amount
charged
Supplier
generated
The amount (£) being
invoiced for VAT if
applicable.
THIS FIELD
MUST ONLY
CONTAIN
NUMBERS TO
2 DECIMAL
PLACES
THIS FIELD
MUST ONLY
CONTAIN
NUMBERS TO
2 DECIMAL
PLACES
THIS FIELD
MUST ONLY
CONTAIN 'Y' or
'N'
THIS FIELD
MUST ONLY
CONTAIN
NUMBERS TO
2 DECIMAL
PLACES
If Unit of Purchase
Quantity = EACH = 1.
If Unit of Purchase
Quantity =
CONSIGNMENT = 'X'
amount.
UNSPSC Coding & Product Codes
Product/Service
Product
Group
Code
UNSPSC Code
UNSPSC Description
Delivery Vehicle
(Dedicated Vehicles)
0000001
73151505
"Sequenced Delivery Service"
Dedicated Network
Charge
0000002
78102205
"Letter or small parcel local delivery
services"
International
Package
0000003
78102204
"Letter or small parcel worldwide
delivery services"
Surcharge
0000004
78121603
"Freight Fee"
Mail Screening
0000005
78102203
"Mailing or mail pick up or delivery
services"
Consumables
0000006
44121505
“Speciality envelopes”
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71
URN
Code Identification Guidance Notes
R
e
Finding
a Customer URN Code (Unique Customer Reference Number)
f
Ae
downloadable list of all of the up to date URN numbers can be found on your area of the website. It is
also
r possible to search for an individual URN using the online search facility.
e
n
https://admin.buyingsolutions.gov.uk/suite/
c
e don’t have a login or password please contact our web services team:
If you
The link below will take you to the Supplier Admin Suite login screen:
[email protected]
N
u cannot find a particular URN contact the Customer Service Desk using the link below:
If you
m
[email protected]
b
e requesting a URN to be set up:- Please supply the name, full address including post code, also
When
r
switchboard
number of the organisation required.
ANNEX 1.2 GPS Category Management Information Requirements
Framework Agreement: RM 963
Framework Agreement Title: Dedicated Courier Network Services
During the first three months of the Framework Agreement, the Supplier will propose and agree with
the Authority a series of metricies specific to Dedicated Courier Network Services under the ‘Generic
Headings’ listed in the following table, to assist the Authority to measure generic framework
performance across all Categories.
Generic Headings
Financial (Overarching)
Frequency
Comment
Supply Chain (Overarching)
Sustainability (Overarching)
Supplier Performance
(Overarching)
Customer Satisfaction
(Overarching)
Service Information
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FRAMEWORK SCHEDULE 9 – ANNUAL SELF-AUDIT CERTIFICATE
[To be signed by Head of Internal Audit, Finance Director or company’s external
auditor]
Dear Sirs
In accordance with the Framework Agreement entered into on [insert Commencement Date
dd/mm/yyyy] between [insert name of supplier] and Government Procurement Service, we
confirm the following:
1.
In our opinion [name] 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 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 above Framework Agreement.
Refer to Clause 17.3 of this Framework Agreement for details of what is required.
Name:………………………………………………………
Signed:…………………………………………………….
Head of Internal Audit/ Finance Director/ External Audit firm (delete as applicable)
Date:……………………………………………………….
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FRAMEWORK SCHEDULE 10: MARKETING
1.
INTRODUCTION
This Framework Schedule 10 describes the activities that the Supplier will carry out
as part of its ongoing commitment to the marketing of the Services to Contracting
Bodies.
2.
MARKETING
Marketing contact details:
Contact: Olga Goddard
Address: TNT Express House, Holly Lane, Atherstone, Warwickshire, CV9 2RY
Telephone: 01827 303030
email: [email protected]
3.
AUTHORITY PUBLICATIONS
3.1
The Authority will periodically update and revise marketing materials. The Supplier
shall supply current information for inclusion in such marketing materials when
required by the Authority.
3.2
Such information shall be provided in the form of a completed template, supplied by
the Authority together with the instruction for completion and the date for its return.
3.3
Failure to comply with the provisions of paragraph 3.1 and 3.2 may result in the
Supplier's exclusion from such marketing materials.
4.
SUPPLIER PUBLICATIONS
Any marketing materials in relation to this Framework Agreement that that Supplier
produces must comply in all respects with the Branding Guidance. The Supplier will
periodically update and revise such marketing materials.
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FRAMEWORK SCHEDULE 11: GUARANTEE
Not Applicable to this Framework Agreement.
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FRAMEWORK SCHEDULE 12: COMMERCIALLY SENSITIVE INFORMATION
1.
INTRODUCTION
1.1
Without prejudice to the Authority's general obligation of confidentiality, the Parties
acknowledge that the Authority may have to disclose Information in or relating to this
Framework Agreement under Clause 20 following a Request for Information pursuant
to Clause 23 of this Framework Agreement.
1.2
In this Schedule the Parties have sought to identify the Supplier's Confidential
Information that is genuinely commercially sensitive and the disclosure of which
would be would be the subject of an exemption under the FOIA.
1.3
Where possible, the Parties have sought to identify where any relevant Information
will cease to fall into the category of Information to which this Schedule applies.
1.4
Without prejudice to the Authority's obligation to disclose Information in accordance
with FOIA or Clause 20 of this Framework Agreement, the Authority will, acting
reasonably but in its sole discretion, seek to apply the relevant exemption set out in
the FOIA as per the statement provided in the Supplier’s Tender Response and
specifically in response to the question detailed below.
Questionnaire
Award Criteria Technical Merit Overarching Requirements
1.5
Question
Number
1.2
The exemption will apply for the term of the Framework Agreement
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FRAMEWORK SCHEDULE 13: STANDARDS
The Supplier shall comply with the following standards at all times during the Term:
1. INTRODUCTION
This Framework Schedule 13 sets out the Standards with which the Supplier shall
comply in its provision of the Services and details the Supplier’s obligations to comply
with future Government requirements and standards.
2. COMPLYING WITH FUTURE GOVERNMENT REQUIREMENTS AND STANDARDS
The Supplier shall comply with future Government requirements and standards in
accordance with any Government Guidance issued during the Term of this
Framework Agreement and as developed and updated, from time to time.
3. CURRENT STANDARDS
3.1
The Supplier shall at all times comply with the current Standards.
3.2
The Supplier shall use its best endeavours to the best applicable techniques and
standards and execute the Call-Off Contracts with all reasonable care, skill and
diligence, and in accordance with Good Industry Practice.
3.3
The Supplier warrants and represents that all Supplier Staff assigned to the
performance of the Services shall possess and exercise such qualifications, skill and
experience as are necessary for the proper performance of the Services.
3.4
The introduction of new methods or systems which impinge on the provision of the
Services shall be subject to prior Approval.
3.5
The Supplier shall undertake its obligations arising under this Framework Agreement
and any Call-Off Agreements in accordance with the relevant quality and technical
standards published by BSI British Standards, the National Standards Body of the
United Kingdom, the International Organisation for Standardisation or other reputable
or equivalent body (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 and any other applicable
quality standards, Government codes of practice and guidance
3.6
The Supplier shall comply with the Standards as referred to in the specification
following at all times during the Term of the Framework Agreement.
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FRAMEWORK SCHEDULE 14 – FRAMEWORK MANAGEMENT
1.
2.
INTRODUCTION
1.1
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 award and maintaining this throughout this Framework
Agreement.
1.2
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.
1.3
This Schedule 14 outlines the general structures and management activities
that the Parties shall follow during the Term of this Framework Agreement.
FRAMEWORK MANAGEMENT
2.1
2.2
Framework Management Structure
2.1.1
The Supplier shall provide a suitably qualified nominated contact (the
“Framework Manager”) who will take overall responsibility for
delivering the 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 management a structure to manage the
Framework in accordance with Schedule 1 (Services).
2.1.3
A full governance structure for the Framework will be agreed between
the Parties during the Framework Agreement implementation stage.
Framework Review Meetings
2.2.1
Regular performance reviews will take place throughout the
Framework Agreement (‘Framework Review Meetings’). The exact
timings and frequencies of such Framework Review Meetings will be
determined by the Authority following award of the Framework
Agreement. It is anticipated that during the first twelve (12) Months of
the Framework Agreement the structure and frequency of the
meetings will be as set out in paragraphs 2.2.2 to 2.2.5 below.
Flexibility from both Parties will be expected over the frequency,
timings and content of these reviews.
2.2.2
Strategic Management Reviews:
2.2.2.1 The Supplier Representative and Authority Representative
shall meet every twelve (12) Months. The Authority sees these
meetings as a vital element in developing a strategic
relationship with the Supplier and to promote the building of a
positive working relationship. The content of these meetings
will be agreed between both Parties at least fourteen (14)
Working Days before the date of the Strategic Management
Review.
2.2.2.2 The Strategic Management Review meeting will consider as a
minimum:
GPS Template: Services Framework Agreement
78
2.2.2.2.1
Overall framework performance including
Supplier’s supply chain performance, including an
assessment of SME’s being used to supply and/or
deliver services;
2.2.2.2.2
Efficiency opportunities,
(Supplier and Authority);
2.2.2.2.3
Benchmarking including
Government efficiency targets;
e.g.
cost
progress
drivers
against
2.2.2.2.4
Market conditions (UK/Global market share,
financials);
2.2.2.2.5
Policy updates including emerging Government
initiatives;
2.2.2.2.6
2.2.3
Security and Risk management.
Management Review Meetings:
2.2.3.1 Management Review Meetings will be held every quarter
between the Authority and the Supplier’s Framework
Manager(s) and representatives from key Contracting Body’s
at the Authority’s premises. The content of the review will be
as set out but not limited to the information required in
paragraph 2.2.5 but the information reviewed at the meetings
will be based on Monthly Management Information provided by
the Supplier.
2.2.4
Operational Review Meetings:
2.2.4.1 These will be held every quarter between the Authority and the
Supplier’s framework management team. The content of the
review will be as set out but not limited to the information
required in paragraph 2.2.6.
2.2.5
The Management and Operational Review Meetings may be held
combined and thus held on the same date at the discretion of the
Authority.
2.2.6
The Management and Operational Review Meetings will focus on the
operational performance of this Framework Agreement, which may
include but is not limited to:
2.2.6.1 Transition and on-boarding of key new customers (milestones
and progress against targets) including contract compliance
and supplier sector strategies (key customers can be defined
as those of whom are of a strategic importance to the success
of the framework);
2.2.6.2 Compliance against Key Performance Indicators (KPI’s) (e.g.
response times, up time, first time fix rates, no. of units sold,
volume);
2.2.6.3 Framework revenue and savings performance, submission of
management information, sector revenue performance;
2.2.6.4 Incident and problem management including supplier helpdesk
performance;
GPS Template: Services Framework Agreement
79
2.2.6.5 Forward planning, opportunities and future
including standardisation and rationalisation;
efficiencies
2.2.6.6 Customer satisfaction (quality and delivery of the Services etc);
2.2.6.7 New service roadmaps;
2.2.6.8 Support to category teams relating to cashable benefits;
3.
4.
KEY PERFOMANCE INDICATORS
3.1
The Key Performance Indicators (KPIs) applicable to this Framework
Agreement are set out in the Specification.
3.2
The Supplier shall establish processes to monitor its performance against the
agreed KPIs in order to report progress to the Contracting Bodies. 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 the Framework Agreement.
3.4
The Supplier’s achievement of KPIs shall be reviewed during Framework
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 Schedule 14.
3.5
The Supplier shall provide a Monthly report on its performance against each
of the KPIs listed in the Specification.
3.6
The Authority reserves the right to adjust, introduce new, or remove KPIs
throughout the Contract Period, however any significant changes to KPIs
shall be agreed between the Authority and the Supplier.
EFFICIENCY TRACKING PERFORMANCE MEASURES
4.1
The Supplier shall cooperate in good faith with the Authority to develop
efficiency tracking performance measures for the Framework Agreement.
This shall include but is not limited to:
4.1.1
tracking reductions in product volumes and product costs, in order to
demonstrate that Contracting Bodies are consuming less and 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
This list is not exhaustive and may be developed during the Framework
Agreement.
4.3
The metrics that shall be agreed and implemented to measure efficiency shall
be developed and agreed between the Authority and the Supplier during the
Framework Agreement. Such metrics shall be incorporated into the list of
KPIs set out in the Specification.
GPS Template: Services Framework Agreement
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4.4
5.
The ongoing progress and development of the efficiency tracking
performance measures shall be reported through framework management
activities as outlined in this Schedule 14.
ESCALATION PROCEDURE
5.1
In the event that the Authority and the Supplier are unable to agree the
performance score for any KPI during an Operational Review Meeting, the
disputed score shall be recorded and the matter shall be referred to the
Management Review Meeting for resolution.
5.2
In the event of a failure to reach a solution that is acceptable to both Parties
at the Management Review Meeting, the matter shall be referred to the
Authority’s Representative and the Supplier’s Representative who attend the
Strategic Management Review Meetings in order to determine the best
course of action to resolve the matter (which may involve organising an adhoc meeting to discuss the performance issue specifically).
5.3
In cases where the Authority’s Representative and the Supplier’s
Representative fail to reach a solution, the matter shall be dealt with in
accordance with the procedure set out in clause 46 (Dispute Resolution).
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