Fitzroy Framework Contracts – Portsmouth City Council Supported Living (2023-2031)

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Duration

Clause 2 of CALL-OFF CONTRACT TERMS AND CONDITIONS

  • 2) Commencement and Duration of Contract
    • 2.1) The Contract shall commence on the Commencement Date and unless terminated earlier in accordance with the Contract will remain in force for the Contract Period.
    • 2.2) No later than three (3) months before the end of the Initial Period or before the end of any previous Extension(s) of the Contract Period (as the case may be), the Council may extend the Contract Period by giving written notice to the Provider of its wish to extend the Contract and the required length of such extension (an “Extension“) provided that the total Contract Period does not exceed the maximum duration specified in the Order. Any such Extension shall be on the same terms and conditions and at the same rates as under this Contract.
    • 2.3) If the Council do not wish to extend this Contract beyond the Initial Period, this Contract shall expire on the expiry of the Initial Period and the provisions of clause 52 (Effect of Termination or Expiry) apply.
Commentary:

Essence

Clause 5 of CALL-OFF CONTRACT TERMS AND CONDITIONS

SCHEDULE E – OPEN FRAMEWORK AGREEMENT PRICE of Framework Agreement – Supported Living – FINAL for Publishing Fitzroy

  • 3) The Open Framework Agreement Prices 
    • 3.1) The Open Framework Agreement Prices for the Services relating to individual Lots are set out in the tables below.
    • 3.2) All hourly rates shall be honoured throughout the Open Framework Agreement Period on a meet or beat basis taking into account the various pricing options as further described in the tables below. 
    • 3.3) Mobilisations costs, TUPE costs and Voids costs are not fixed at the Framework Agreement level and will depend on the Council’s preferred contracting and pricing strategy to be confirmed at the point of Call-Off as set out in the Mini-Competition Pack. 
Commentary:

Rights to Terminate

Clauses 46-52 of CALL-OFF CONTRACT TERMS AND CONDITIONS

SECTION 11 – TERMINATION

  • 46) Expiry
    • 46.1) This Contract shall terminate automatically on the Expiry Date unless it shall have been terminated earlier in accordance with the provisions of the Conditions of Contract.  For the avoidance of doubt the Provider shall not be entitled to any compensation on expiry.
  • 47) Termination on Notice
    • 47.1) The Council may terminate this Contract at any time on six (6) months written notice to the Provider. For the avoidance of doubt, no compensation shall be payable to the Provider where this Contract is terminated in whole or part under this clause 48.1.
  • 48) Termination for Provider Default 
    • 48.1) Without prejudice to any accrued rights or remedies under this Contract, the Council may terminate this Contract in whole or in part with immediate effect by the service of written notice on the Provider in the following circumstances:
      • 48.1.1) commits a breach of any of its obligations under the Contract provided that if the breach is capable of remedy, the Council may only terminate this Contract under this clause 49.1.1 if the Provider has failed to remedy such breach within twenty eight (28) days (or such period of time as the Council may reasonably require) of receipt of notice from the Council (a “Remediation Notice”) to do so;
      • 48.1.2) if a Persistent Breach has occurred;
      • 48.1.3) if there is an Insolvency Event;
      • 48.1.4) the Provider makes an assignment of this Contract in breach of clause 55 (Assignment) or sub-Providers the Services or any part of the Services in breach of clause 56 (Sub-Contracting);
      • 48.1.5) if there is a change of control of the Provider within the meaning of section 1124 of the Corporation Tax Act 2010 to which the Council reasonably objects;
      • 48.1.6) the Council reasonably believes that the circumstances set out in regulation 73(1)(b) of the Public Contracts Regulations 2015 apply;
      • 48.1.7) fails to obtain or loses any Necessary Consent or has any Necessary Consent varied or restricted the effect of which might reasonably be considered by the Council to have a material adverse effect on the performance of the Services;
      • 48.1.8) breaches any of its obligations under clause 29 (Insurance);
      • 48.1.9) fails to provide the Service during a continuous period of seven (7) days or for a total period of ten (10) days in any three (3) month period during the Contract Period other than as a result of a Force Majeure Event; or
      • 48.1.10) commits a breach that results in material damage to the reputation of the Council;
    • -and recover from the Provider the amount of any loss resulting from such termination.
  • 49) Termination for Prohibited Acts
    • 49.1) If a Prohibited Act is committed under clause 57 (Prevention of Bribery) by the Provider or any of its Representatives, not acting independently of the Provider, then the Council may without prejudice to any accrued rights or remedies under the Contract, terminate the Contract forthwith by written notice having immediate effect.
    • 49.2) Any notice of termination under this clause 50 shall specify the nature of the Prohibited Act, the identity of the party whom the Council believes has committed the Prohibited Act, and the date on which the Contract will terminate, in accordance with the applicable provision of this clause 50.
  • 50) Termination on Force Majeure
    • 50.1) If a Force Majeure Event prevents either Party from performing its obligations under the Contract in any material respect for a period of three (3) consecutive months then, provided the notification requirements set out in clause 59 (Force Majeure) have been met, without prejudice to any accrued rights or remedies under the Contract, either Party may terminate the Contract by notice in writing to the other Party having immediate effect.
  • 51) Effect of Termination or Expiry
    • 51.1) Where the Contract is terminated the Council shall:
      • 51.1.1) not be required to make further payments under the Contract until the costs, loss and/or damage due under the Contract have been calculated and when such payments become due the Council shall be entitled to withhold from such payments the costs, loss and/or damages due to it under the Contract;
      • 51.1.2) be entitled to repossess any Council Assets held by the Provider and to exercise a lien over any Provider Assets in the Council’s possession until the Provider has paid to the Council all costs, loss and/or damage due to the Council under the Contract.
    • 51.2) Notwithstanding that a Party may have a right to terminate the Contract, that Party may elect to continue to treat the Contract as being in full force and effect and to enforce its rights under the Contract.
  • 52) Duty to co-operate
    • 52.1) The Provider shall co-operate fully with the transfer of responsibility for the Service (or any of the Service) to any Future Provider undertaking such Service, the same or similar to the Service in accordance with clause 53.2:
      • 52.1.1) during the final six (6) months of the Contract Period (where this expires under clause 47 (Expiry)) or during the period of any notice of termination of this Contract and 
      • 52.1.2) for a period of two (2) months thereafter.
    • 52.2) Such co-operation referred to at clause 53.1 shall include:
      • 52.2.1) liaising with the Council and/or a Future Provider, and providing reasonable assistance and advice concerning the Service and their transfer to the Council or to such Future Provider,
      • 52.2.2) subject to the provisions of clause 35 (Confidentiality), providing to the Council and/or to a Future Provider all and any information concerning the Service which is required for the efficient transfer of responsibility for their performance.
    • 52.3) The Provider shall use all reasonable endeavours to facilitate the smooth transfer of responsibility for the Service to a Future Provider or the Council, as the case may be, and the Provider shall not act at any time during the Contract Period or thereafter in a way calculated or intended, directly or indirectly, to prejudice or frustrate or make more difficult such transfer (but this clause shall not prevent the enforcement by the Provider of any of its rights whether under the Contract or otherwise).
    • 52.4) The Provider shall (and shall procure that the Sub-Providers will) subject to clause 36.8 (Data Protection) and clause 35 (Confidentiality) comply with all reasonable requests of the Council to provide information relating to the Provider’s costs of operating and maintaining the Service.
Commentary:

Suspension

Clause 32 of Framework Agreement – Supported Living – FINAL for Publishing Fitzroy

  • 32) Suspension
    • 32.1) The Council may suspend the Provider’s appointment to the Open Framework Agreement with immediate effect in the following circumstances:
      • 32.1.1) where the Provider commits a Persistent Breach;
      • 32.1.2) if the Provider suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts OR (being a company) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986; 
      • 32.1.3) the Provider commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than for the sole purpose of a scheme for a solvent amalgamation of the Provider with one or more other companies or the solvent reconstruction of the Provider; 
      • 32.1.4) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or on connection with the winding up of the Provider being a company other than for the sole purpose of a scheme for a solvent amalgamation of the Provider with one or more other companies or the solvent reconstruction of the Provider; 
      • 32.1.5) an application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over the Provider; 
      • 32.1.6) a floating charge holder over the assets of the Provider has become entitled to appoint or has appointed an administrative receiver; 
      • 32.1.7) a person becomes entitled to appoint a receiver over the assets of the Provider or a receiver is appointed over the assets of the Provider; 
      • 32.1.8) the Provider, being an individual, is the subject of a bankruptcy petition or order;
      • 32.1.9) a creditor or encumbrancer of the Provider attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within fourteen (14) days; 
      • 32.1.10)  the Provider being a “small company” within the meaning of Section 247(3) of the Companies Act 1985, a moratorium comes into force pursuant to Schedule A1 of the Insolvency Act 1986;
      • 32.1.11)  any event occurs, or proceeding is taken, with respect to the Provider in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in this clause (inclusive);
      •  32.1.12) where one or more of the Provider’s registered premises has a Care Quality Commission rating which is deemed inadequate by the Care Quality Commission;
        • 1.1.1) the Provider loses or has its Care Quality Commission registration/licence suspended;  
        • 1.1.2) the Provider suspends or ceases, or threatens to suspend or cease, to carry on all or a substantial part of its business;
        • 1.1.3) where the Provider commits a material breach in relation to this Open Framework Agreement and/or any Call-Off Contract; or 
        • 1.1.4) where the Provider has a Call-Off Contract terminated by the Council.
Commentary:

Review

Clauses 13-15 & 18-22 of CALL-OFF CONTRACT TERMS AND CONDITIONS

SECTION 3 – REVIEW

  • 13) Officers
    • 13.1) The Authorised Officer shall liaise with and instruct the Provider and its Representatives regarding all matters relating to performance by the Provider of its obligations under the Contract and shall determine any matters or issue any notices as stipulated under the Contract.
    • 13.2) The Provider shall inform the Council on or before the Commencement Date of the details of the Provider’s Manager, who shall be the main point of contact for the Council and shall have power on behalf of the Provider in connection with any matter relating to performance of the Service and shall exercise the rights, functions and obligations of the Provider under the Open Framework Agreement.
  • 14) Meetings
    • 14.1) The Authorised Officer and Provider’s Manager shall hold regular meetings (as set out in the Specification but at least annually, unless agreed otherwise) in accordance with this clause 14 to review the working of the Contract and the Services. Such meetings shall identify ways in which either Party is or may become in breach of its obligations under the Contract and any remedial action required as a result. The Provider will not charge the Council for any costs incurred in attending the meetings.
    • 14.2) As soon as practicable following any meetings, the Authorised Officer will prepare minutes of the same and submit these to the Provider’s Manager for his approval. Such approval should be given or withheld (as the case may be) within ten (10) Working Days of receipt of such minutes. Where no response is received within such period, the Provider will be deemed to have agreed to the content of the meeting minutes.
  • 15) Performance Monitoring
    • 15.1) The Service shall be subject to such monitoring systems as the Authorised Officer considers appropriate to undertake and as set out in this clause 15.
    • 15.2) The Authorised Officer may investigate any case where the Provider may have or appears to have failed to perform the Service in whole or in part in accordance with the provisions of the Contract (a “Default”).
    • 15.3) Where the Authorised Officer is satisfied that in any particular case the Provider is in Default he may instruct the Provider to remedy the failure within such reasonable period as the Authorised Officer may determine by issuing a notice (a “Remediation Notice”).
    • 15.4) Where the Provider fails to comply with any Remediation Notice issued by the Authorised Officer, the Authorised Officer may issue a further notice (a “Default Notice”) to the Provider specifying the nature of the Default and instructing the Provider to remedy the Default within a reasonable period as determined by the Authorised Officer.
    • 15.5) If the Provider fails to remedy any Default specified in a Default Notice within the reasonable period specified, the Authorised Officer may either:
      • 15.5.1) issue a further Default Notice every twenty-four (24) hours until the Authorised Officer is satisfied that the Default concerned has been remedied; or 
      • 15.5.2) following notification to the Provider, take action to rectify the Default itself (including by instructing an alternative provider to rectify the same) and recover its additional costs of doing so from the Provider as a debt.
    • 15.6) In addition to clause 15.5, where the failure amounts to a Persistent Breach, or is one which materially and adversely affects the performance of the Service or one which results in material damage to the reputation of the Council, notwithstanding that a Remediation Notice and/or Default Notice(s) has been issued pursuant to this clause 15, the Council shall be entitled to terminate the Contract forthwith and may invoke the termination provisions in Section 11 (Termination).
    • 15.7) The administrative costs and the cost of travel and re-inspection incurred by the Council in respect of each Default Notice issued is £100.00 and the Council shall be entitled to deduct such sum from the Provider’s monthly statement for each Default Notice issued, in addition to any deductions for failing to carry out the Service. 

  • 18) Complaints Procedure
    • 18.1) The Provider shall adopt a culture of welcoming comments and complaints in order to improve the quality of the Services and the delivery of the Services. 
    • 18.2) Where the complaint is as a result of a deficiency in or issue regarding the Services, the Provider shall act on that complaint and ensure that mechanisms and processes are in place to ensure that the subject of the complaint is not repeated. 
    • 18.3) The Provider shall maintain a documented accessible and pro-active complaints policy and procedure (meeting the Accessible Information Standard requirements as set out in clauses 9.1 to 9.3), which shall be given to each Customer. The procedure will take account of any disabilities or communication difficulties that the Customer may have. Such policy and procedure shall be made available to the Council on request.
    • 18.4) The Provider’s complaints policy and procedure will be consistent with the requirements of any relevant legislation, CQC guidance (where relevant) and best practice.
    • 18.5) The Provider shall at the commencement of the Services provide to each Customer and/or their representatives a document on how to make a complaint to the Provider, which will include the route for progression of complaints if not resolved by the Provider. In addition the Provider’s complaints policy and process, in a range of formats to meet the accessibility needs of Customers being supported, shall be made readily and easily available to Customers and their families. The details of agencies such as Healthwatch and advocacy organisations shall also be made readily and easily available.
    • 18.6) The Provider’s complaints policy and procedure shall encourage the early discussion of issues and, where possible, the early resolution of the issues raised.
    • 18.7) In the event of a formal complaint, the Provider shall ensure that the complaint is listened to, taken seriously, responded to in an accessible and non-discriminatory way and achieve a resolution that is satisfactory to the complainant.
    • 18.8) All complaints, detailing the complainant, the nature of the complaint, remedial action taken and final outcome shall be recorded in sufficient detail to be able to report all complaints to the Council as requested.
    • 18.9) If the Provider is unable to resolve the complaint to the complainant’s satisfaction within one (1) month of notification of the complaint, the Provider shall notify the Council. The Provider shall note that this may result in a review of the complaint and the complaints process by the Council. 
    • 18.10) The Provider shall obtain Customer feedback in accordance with the Specification.
  • 19) Provider’s Records
    • 19.1) In addition to the information to be supplied in accordance with the Specification and in relation to payments, throughout the Contract Period the Provider shall keep and maintain such necessary data and information and shall complete or provide such assistance as the Council may reasonably require by written notice to the Provider to enable the Council to complete all official returns, including, but without limitation the following:
      • 19.1.1) returns to any central government body or properly authorised agency of central government;
      • 19.1.2) information required by any statutory body or for compliance with any statute or statutory instrument; and
      • 19.1.3) information required pursuant to clause 43 (Equal Opportunities),
    • -provided in each case that the nature of such data and information and the format for the same has been agreed by the parties or is specified by Law.
  • 20) Audit 
    • 20.1) During the Contract Period and for a period of six (6) years after the Expiry Date, the Council may conduct or be subject to an audit for the following purposes:
      • 20.1.1) to verify the accuracy of the Charges (and proposed or actual variations to it in accordance with this Contract) and/or the costs of all suppliers (including Sub-Providers) of the Services.
      • 20.1.2) to review the integrity, confidentiality and security of any data relating to the Council or any Customer.
      • 20.1.3) to review the Provider’s compliance with the Information Laws and/or the Data Protection Legislation, in accordance with clause 36 (Freedom of Information) and clause 36.8 (Data Protection) and any other Laws applicable to the Services.
      • 20.1.4) to review any records created during the provision of the Services.
      • 20.1.5) to review any books of account which contain income and expenditure relating to the provision of the Services. Where such records form part of the Provider’s records then the Provider shall produce extracts relating to the provision of the Services.
      • 20.1.6) to carry out the audit and certification of the Council’s accounts.
      • 20.1.7) to carry out an examination pursuant to section 6(1) of the National Audit Act 1983 or section 20(1)(c) of the Local Audit and Accountability Act 2014  of the economy, efficiency and effectiveness with which the Council has used its resources.
      • 20.1.8) to verify the accuracy and completeness of the management reports delivered or required by this Contract.
    • 20.2) Except where an audit is imposed on the Council by a regulatory body, the Council may not conduct an audit under this clause 20 more than once in any calendar year.
    • 20.3) The Council shall use its reasonable endeavours to ensure that the conduct of each audit does not unreasonably disrupt the Provider or delay the provision of the Services.
    • 20.4) Subject to the Council’s obligations of confidentiality, the Provider shall on demand provide the Council and any relevant body (and/or their agents or representatives) with all reasonable co-operation and assistance in relation to each audit including:
      • 20.4.1) all information requested by the above persons within the permitted scope of the audit; and 
      • 20.4.2) reasonable access to any sites controlled by the Provider and to any equipment used (whether exclusively or non-exclusively) in the provision of the Services and access to the Provider’s Representatives.
    • 20.5) The Council shall endeavour to (but is not obliged to) provide at least fifteen (15) Working Days’ notice of its or, where possible, a regulatory body’s intention to conduct an audit.
    • 20.6) The parties agree that they shall bear their own respective costs and expenses incurred in respect of compliance with their obligations under this clause, unless the audit identifies a material failure to perform its obligations under this Contract in any material manner by the Provider in which case the Provider shall reimburse the Council for all the Council’s reasonable costs incurred in the course of the audit.
    • 20.7) If an audit identifies that:
      • 20.7.1) the Provider has failed to perform its obligations under this Contract in any material manner, the parties shall and implement a remedial plan. If the Provider’s failure relates to a failure to provide any information to the Council about the Charges, proposed Charges or the Provider’s costs, then the remedial plan shall include a requirement for the provision of all such information.
      • 20.7.2) the Council has overpaid any Charges, the Provider shall pay the Council the amount overpaid within twenty (20) Working Days. The Council may deduct the relevant amount from the Charges if the Provider fails to make this payment.
      • 20.7.3) the Council has underpaid any Charges, the Council shall pay to the Provider the amount of the under-payment (less the cost of audit incurred by the Council if this was due to a default of the Provider in relation to invoicing) within 20 Working Days.
  • 21) Open Book Accounting
    • 21.1) The Council shall be entitled to request in each Contract Year that the Provider provide to the Council a certificate of income and expenditure to comply with this Clause 21.1 and Clause 21.2 within (15) Working Days of such request. The certificate of income and expenditure shall be prepared in accordance with generally accepted accounting principles (UK GAAP) and Good Industry Practice such as that provided by the Chartered Institute of Public Finance and Accountancy (CIPFA). The Provider shall arrange for the certificate of income and expenditure to be audited by the Provider’s external auditor as soon as practicable after submission to the Council and copy of the audited version of the certificate of income and expenditure shall be promptly provided to the Council following receipt by the Provider. 
    • 21.2) The certificate of income and expenditure shall include a representation of the financial model setting out the Provider’s actual income, expenditure and profits in providing the Services and the third party services over the preceding Contract Year including the following details:
      • 21.2.1) actual capital expenditure, including capital replacement costs;
      • 21.2.2) actual operating expenditure relating to the provision of the Services and third party services with an analysis showing the costs of staff (including volunteers), consumables, sub-contracted and bought services;
      • 21.2.3) all interest expenses and other third party financing costs incurred in relation to the Services and third party services;
      • 21.2.4) details of the overhead recoveries that have been made in relation to the Services and third party services;
      • 21.2.5) the profit which the Provider or Sub-Provider has achieved in the provision of the Services and third party services including any profit element forming any part of the overhead recoveries disclosed by reason of clause 21.2.4 above or any part of sub-contracted or bought in services from key sub-Providers or affiliates;
      • 21.2.6) income from charges to the Council and any third party in relation to provision of these services;
      • 21.2.7) such other records as the Council may reasonably require in order to monitor and verify the Provider’s performance and the payments made; and
      • 21.2.8) such other items as the Council may reasonably require in order to conduct cost audits for verification of cost expenditure or estimate expenditure for the purposes of this Contract;
    • 21.3) Following receipt by the Council of the certificate of income and expenditure the Provider shall provide to the Council such additional information as it may reasonably request so that the Council can verify the accuracy of the certificate of income and expenditure. The Council shall have the right to appoint an independent third party auditor who shall enter into a confidential undertaking as set out in clause 35 (Confidentiality) in order to verify the certificate of income and expenditure.
    • 21.4) The Provider shall allow the Council, or its auditor and its authorised agents the right of reasonable access to (and, the right to take copies of) the books of account and other source data in whichever form held of the information identified in any financial model or such other information as may be necessary or reasonably desirable for the purpose of verifying the certificate of income and expenditure or for the purpose of monitoring and calculating the Provider’s profit margins and applying the provisions of the Contract’s payment mechanism.
    • 21.5) The certificate of income and expenditure may be used by the Council for verification of cost expenditure or estimated expenditure in particular but without limitation for the purpose of calculating the effect of a change, introduction of special projects or Qualifying Change in Law or compensation payable on termination. 
  • 22) Continuous Service Improvements
    • 22.1) The Provider shall adopt a policy of continuous improvement in relation to the Services, pursuant to which it will annually review with the Council the Services, the manner in which it supplies the Services, identify new or potential improvements to Services with a view to reducing costs (including the Charges) and/or improving the quality and efficiency of the Services (“Annual Improvement Plan”).
    • 22.2) The Annual Improvement Plan shall identify and detail, as applicable:
      • 22.2.1) The emergence of new and evolving relevant technologies which could improve the Services;
      • 22.2.2) New or potential improvements to the Services including the quality, responsiveness, procedures, performance mechanisms and customer support services in relation to the Services;
      • 22.2.3) New or potential improvements to the interfaces or integration of the Services with other services provided by third parties or the Council which might result in efficiency or productivity gains or in reduction of operational risk;
      • 22.2.4) Changes in ways of working that would enable the Services to be delivered at lower costs and/or bring greater benefits to the Council and the Customers;
      • 22.2.5) How the proposed changes ensure best value for the Council through reference to market intelligence, the Provider’s own data and experience, relevant published information and information from other suppliers and purchasers;
      • 22.2.6) How the Provider would implement any improvements identified in clause 22.2.1 to 22.2.4;
      • 22.2.7) Any decrease in the Charges to be paid by the Council for the Services under Schedule B (Contract Price Schedule) as a result of any of the improvements identified in clause 22.2.1 to 22.2.4;
    • 22.3) The Parties shall provide to each other any information which may be relevant to assisting the objectives of continuous improvement and in particular reducing costs.
    • 22.4) The Provider shall report to the Contract Manager once every Contract Year on the Annual Improvement Plan.
Commentary:

Variation

Clause 16 of CALL-OFF CONTRACT TERMS AND CONDITIONS

  • 16) Variations to the Service
    • 16.1) Save for the provisions of paragraph 9.3 of Schedule B (Contract Price Schedule), no Variation shall be effective unless it is in writing and signed by the Parties.
    • 16.2) Either Party may propose a Variation to the Services at any time during the Contract Period.
    • 16.3) Where the Council proposes a variation which in the reasonable opinion of the Council is necessary for the continued viability of this Contract, the Provider shall not be entitled to reject or refuse such variation.  If, however, the Provider clearly demonstrates to the reasonable satisfaction of the Council that the proposed variation:
      • 16.3.1) is contrary to Law; 
      • 16.3.2) would require the Provider to apply for an unobtainable Necessary Consent and/or unobtainable change to a Necessary Consent; or 
      • 16.3.3) would otherwise materially and adversely affect the Provider’s ability to provide the Services, 
    • -then the Parties shall be at liberty to treat this Contract as terminable and either Party may by written notice to the other give such notice of termination as is reasonable in the circumstances. Where the Contract is terminated in these circumstances, the Provider shall not be entitled to any compensation upon expiry of the notice of termination. 
    • 16.4) Where either Party proposes a Variation, the Provider shall be required to provide the Council with details of the estimated costs to the Council along with a statement of the Provider’s reasonable opinion on:
      • 16.4.1) any impact on the provision of the Services;
      • 16.4.2) any amendment(s) required to this Contract;
      • 16.4.3) any loss of revenue that may result;
      • 16.4.4) additions or amendments required to any Necessary Consents;
      • 16.4.5) whether the Provider will be able to oblige its Sub-Providers to minimise any increase in costs and maximise any reduction in costs (including, where practicable, the use of competitive quotes);and
      • 16.4.6) any capital expenditure required.
    • 16.5) Unless the Variation expressly provides for an increase in payment or save where the provisions of paragraphs 9 or 16 of Schedule B (Contract Price Schedule) apply, the Charges shall not be increased as a result of a Variation.
    • 16.6) Except as expressly provided in this Contract, each Party shall pay its own costs incurred in connection with the negotiation, preparation, and execution of the Variation and any documents referred to in it.
Commentary:

Change in Legislation

Clause 57 of CALL-OFF CONTRACT TERMS AND CONDITIONS

  • 57) Legislative Change Risk
    • 57.1) If a Qualifying Change in Law occurs or is shortly to occur, then either Party may notify the other using the review procedure under clause 14to express an opinion on its likely effects, giving details of its opinion of any necessary change in Service;
      • 57.1.1) whether any changes are required to the terms of the Contract document to deal with the Qualifying Change in Law;
      • 57.1.2) whether relief from compliance with obligations is required during implementation of any relevant Qualifying Change in Law;
      • 57.1.3) any change in the costs of providing the Service under the Contract as identified via Open Book Accounting together with supporting evidence that any loss of income is a direct result from the Qualifying Change in Law;
      • 57.1.4) any expenditure that is required or no longer required as a result of a Qualifying Change in Law taking effect during the Contract;
    • -In each case giving in full detail the proposed procedure for implementing the change in Service. Responsibility for the costs of implementation (and any resulting variation to the Price) shall be dealt with in accordance with clause 58.2.
    • 57.2) As soon as practicable after receipt of any notification from either Party under clause 58.1 above, the parties shall discuss and agree the issues referred to in clause 58.1 and any ways in which the Provider can mitigate the effect of the Qualifying Change of Law, including;
      • 57.2.1) providing evidence that the Provider has used reasonable endeavours (including where practicable the use of competitive quote) to oblige its Sub-Providers to minimise any increase in costs and maximise any reduction in costs;
      • 57.2.2) demonstrating how any expenditure to be incurred or avoided is being measured in a cost effective manner, including showing that when such expenditure is incurred or would have been incurred, foreseeable change in law at that time have been taken into account by the Provider;
Commentary:

Dispute Resolution

Clauses 44-45 of CALL-OFF CONTRACT TERMS AND CONDITIONS

SECTION 10 – DISPUTE RESOLUTION

  • 44) Referral to Officers 
    • 44.1) If any dispute arises out of or in connection with the Contract, the parties shall promptly notify each other of the matter in dispute (“Dispute”), which shall in the first instance be referred to the Authorised Officer and the Provider’s Manager who shall use all reasonable skill, care and diligence to ensure that they receive the views of all parties and considers all solutions proposed with the objective of resolving the dispute and achieving an agreed solution.
    • 44.2) Where the Authorised Officer and the Provider’s Manager do not achieve within 14 days of notification of a Dispute a solution acceptable to all parties involved, and provided no right of termination has been exercised, then senior representatives of both parties shall meet promptly, and in any event within 21 days of notification of the Dispute, in good faith to discuss and seek to resolve the Dispute. 
    • 44.3) Subject to Schedule B (Contract Price Schedule), the provision of the Service and the payment of the Charges shall not be affected or suspended in the event of and during any Dispute.
  • 45) Mediation 
    • 45.1) In the event that the Dispute cannot be resolved by negotiation or conciliation under clauses 45.1 and 45.2 within two (2) months or such other period as may be determined by the Council at its absolute discretion both parties shall attempt to settle it by mediation.
    • 45.2) The procedure for mediation and consequential provisions relating to mediation are as follows:-
      • 45.2.1) 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 (1) party to the other or 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 Centre for Effective Dispute Resolution (“CEDR”) (or any successor body) to appoint a Mediator;
      • 45.2.2) 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 CEDR to provide guidance on a suitable procedure;
      • 45.2.3) 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;
      • 45.2.4) 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 once it is signed by their duly authorised representatives; and
      • 45.2.5) failing agreement, either of the parties may invite the Mediator to provide a non-binding but informative written opinion. Such an opinion shall be provided on a without prejudice basis and shall not be used in evidence in any proceedings relating to this Contract without the prior written consent of both parties.
    • 45.3) If the parties fail to resolve the Dispute by mediation within two (2) months of the Mediator being appointed, or such longer period as may be agreed between the parties, then any dispute or difference between them may be referred to the courts pursuant to clause 73 (Law of Contract and Jurisdiction).
Commentary:

Confidentiality

Clause 34 of CALL-OFF CONTRACT TERMS AND CONDITIONS

SECTION 7 – INFORMATION AND IPR

  • 34) Confidentiality
    • 34.1) Subject to clause 35.2, the parties shall keep confidential all matters relating to this Contract and shall use all reasonable endeavours to prevent their Representatives from making any disclosure to any person of any matters relating hereto. 
    • 34.2) Clause 35.1 shall not apply to any disclosure of information:
      • 34.2.1) required by Law, provided that clause 36 (Freedom of Information) shall apply to any disclosures required under the Information Laws;
      • 34.2.2) that is reasonably required by persons engaged by a party in the performance of such party’s obligations under this Contract;
      • 34.2.3) where a Party can demonstrate that such information is already generally available and in the public domain otherwise than as a result of a breach of clause 35.1;
      • 34.2.4) by the Council of any document to which it is a party and which the parties to this Contract have agreed contains no commercially sensitive information;
      • 34.2.5) to enable a determination to be made under Section 10 (Dispute resolution);
      • 34.2.6) which is already lawfully in the possession of the receiving party, prior to its disclosure by the disclosing party;
      • 34.2.7) by the Council, to any department, office or agency of the Government; and
      • 34.2.8) by the Council relating to this Contract and in respect of which the Provider has given its prior written consent to disclosure;
      • 34.2.9) on a confidential basis, to its professional advisers; and
      • 34.2.10) to the Serious Fraud Office where the party has reasonable grounds to believe that the other party is involved in activity that may constitute a criminal offence under the Bribery Act 2010.
    • 34.3) Subject to clause 37 (Data Protection), on or before the Expiry Date the Provider shall ensure that all documents and/or computer records in its possession, custody or control which contain information relating to any of the Council’s Representatives or Customer or the Premises including any documents in the possession, custody or control of any sub-Provider, are delivered up to the Council or securely destroyed.
    • 34.4) The Parties acknowledge that, except for any Information which is exempt from disclosure in accordance with the provisions of the Information Laws, the content of the Contract is not Confidential Information and the Provider hereby gives its consent for the Council to publish the Contract in its entirety to the general public (but with any Information that is exempt from disclosure in accordance with the Information Laws redacted) including any changes to the Contract agreed from time to time.  The Council may consult with the Provider to inform its decision in its absolute discretion regarding any redactions but shall have the final decision in its absolute discretion whether any of the content of the Contract is exempt from disclosure in accordance with the provisions of the Information Laws. 
    • 34.5) The Provider shall not, and shall take reasonable steps to ensure that the Representative shall not, make any press announcements or publicise the Contract or any part of the Contract in any way, except with prior written consent of the Council.
Commentary:
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