Duration
5 years with the option to extend for a further 4 years – commencing 1st March 2018 – extended
Commentary:
Service Commencement and Contract Term
Commentary: The notice provisions above are separate for the Council and the ICB. Where Fitzroy is providing a service to Notts City Council clients, termination of this agreement is possible on 90 days’ notice. Individuals must be given 28 days’ notice. Exceptional circumstances may justify a shorter period.
Where a person is admitted to hospital, you can terminate after 7 days – this is suggested to be an example of an exceptional circumstance.
You can ask the care manager to certify that you cannot meet the needs without real difficulty, and they ‘may’ accept shorter notice to remove in that situation too after all conscientious grappling with options for avoiding that situation.
SCHEDULE 1 – SERVICE COMMENCEMENT
Clauses 2-4 of Extension of Contract Term
- If the Commissioners wish to exercise the option to extend the Contract Term, the
Co-ordinating Commissioner must give written notice to that effect to the Provider no
later than 3 months before the original Expiry Date. - The option to extend the Contract Term may be exercised:
3.1 only once, and only on or before the date referred to in paragraph 2 above;
3.2 only by all Commissioners; and
3.3 only in respect of all Services - If the Co-ordinating Commissioner gives notice to extend the Contract Term in
accordance with paragraph 2 above, the Contract Term will be extended by the period
specified in that notice and the Expiry Date will be deemed to be the date of expiry of
that period.
Commentary: This has been done and Fitzroy therefore has a contract for the extended period.
SCHEDULE 3 – PAYMENT
Local Prices
The rates will be reviewed annually in line with the National Living Wage and annual inflation.
Commentary: this does not mean that they will be increased annually, but the Stoke City case turns this possibility into something more like a rebuttable presumption because of the public law context: they’d need a reason for thinking that a refusal to match that rate by way of a percentage uplift would not affect the sustainability of the market.
Nottingham City Council will undertake benchmarking of the hourly rate annually. Benchmarking may also be triggered by certain market circumstances. The methodology and potential triggers for this are set out in this Schedule 3 – Payments.
Commentary: this merely means that they will do the research annually, not that they will uplift according to the outcome of the evidence. But the Stoke City case makes it harder for them not to.
During the lifetime of the contract, Nottingham City Council may conduct a benchmarking/open book exercise. The purpose of the Benchmarking is to determine whether some or all of the Services in the specification delivered at a price to the Authority that is competitive in the marketplace with equivalent services provided by other suppliers. The Charges for the Services are and will remain competitive with equivalent services (“Equivalent Services”) provided by other suppliers and the charges levied for such Equivalent Services and that the value and quality of the Services are of an appropriate industry standard.
Commentary: this suggests that it is a term of the contract that you will open your management accounts up to their scrutiny.
1.1 Payments will be made based on an invoice received. Payments will only be made for hours of care/support delivered, therefore, a breakdown must be provided of services delivered to each citizen with each invoice supplied.
1.2 The Purchaser shall pay the rates to the Provider as set out at point 13 of the Service Specification, which shall be reviewed at the start of the Purchaser’s financial year.
Commentary: the rates quoted for or accepted are reviewed at the start of the financial year, which is always April, in our experience.
1.3 The rate for this service with effect from 1st March 2018 until 31 March 2019 will be in line with point 13 of the Service Specification
1.4 The rates shall be exclusive of VAT and does reflect the full cost of delivering services including travel costs, Bank holiday and Sundays.
Commentary: YOU don’t get anything extra for paying bank holiday work at a premium.
2.2 The Purchaser will make a payment within 30 days of receipt of a correct invoice
2.3 The Provider shall ensure that any payments made to any sub-contractors providing Services under this Agreement reflect at least the same terms as this Agreement in relation to payment provisions.
2.4 If an invoice is in error or there is a dispute as to its content, the Purchaser may not pay that invoice. The Purchaser and the Provider shall take all reasonable steps to speedily resolve any such issues.
Commentary: this is ambiguous – it is not clear whether it means that the purchaser might not pay during the currency of the dispute, or that the purchaser is not ‘allowed’ to pay that invoice. Depending on how you invoice, this looks to me as if you agree not to be paid for dispute-related services during that time – that could be massive, or just a part of a part of an invoice.
2.8 Invoices must be broken down into separate lines dependent on care delivery as follows
Outreach CSE
Standard rate
Enhanced Rate
Accommodation Based CSE
Standard rate
Enhanced rate
Waking Nights
Enhanced Waking Night
3.2 Where items on the invoice are in dispute the 30 days payment period no longer applies, although every effort will be made to resolve the query speedily.
Commentary: this supports the impression that the payment will not be made for a disputed invoice.
6.1 Where agreement cannot be reached between the Purchaser and the Provider in relation to any disputed item, the dispute will be dealt with in accordance with the Dispute Resolution Procedure in this Contract.
Commentary: specific disputed service invoices are governed by the dispute resolution mechanism.
SCHEDULE 8 – TUPE
Section 3
3.1 terminate or give notice to terminate the employment of any person engaged in the provision of the Services or the relevant Service (other than for gross misconduct);
3.2 increase or reduce the total number of people employed or engaged in the provision of the Services or the relevant Service by the Provider and any Sub-Contractor by more than 5% (except in the ordinary course of business);
3.3 propose, make or promise to make any material change to the remuneration or other terms and conditions of employment of the individuals engaged in the provision of the Services or the relevant Service;
3.4 replace or relocate any persons engaged in the provision of the Services or the relevant Service or reassign any of them to duties unconnected with the Services or the relevant Service; and/or
3.5 assign or redeploy to the Services or the relevant Service any person who was not previously a member of Staff engaged in the provision of the Services or the relevant Service.