Agency worker: Agreements, Contracts, pay scales

The City of London acknowledges receipt of your request.

show quoted sections

Following your request of 8 February 2009, and your clarifications of 9
and 10 February, and our acknowledgement of 9 February, the City of London
(CoL) responds as follows.

This letter constitutes an interim response, and a partial Refusal Notice
under the Freedom of Information Act 2000 (FOIA).

Unfortunately the CoL will be unable to fully resolve your request within
the statutory 20 working days (which falls due today, 6 March). Because of
the commercial sensitivity of much of the information which falls under
your request, the CoL needs to consider the public interest test in
relation to part of Part 1.1 of your request, under the following
exemptions in the FOIA: Section 43 (prejudice to the commercial interests
of any person) and Section 42 (legal professional privilege). Because of
the scale and complexity of your request, in accordance with Section
10(3)(b) of the FOIA we consider that we may need up to a further 20
working days. However, we will attempt to respond to you in completion of
the request before then. Please accept our apologies for the delay.

The CoL makes the following part-response to your request.

- In accordance with Section 1(1)(a) of the FOIA, we inform you that we
hold the information requested.

- We disclose that our Management Service Provider is Comensura for social
workers and social work assistants.

- In part response to Part 1.1 of your request we attach two parts of the
contract, as follows: (i) the Articles of Agreement with Comensura; (ii)
The Invitation to Tender (ITT) for the contract. See also our response to
part 1.3, below. The ITT will be sent by separate email as it is too large
to send with this email.

<<Articles of Agreement.pdf>>

- In relation to some of the information falling under Part 1.1 of your
request we advise you that it is exempt from disclosure under sections 41
(information provided in confidence) and subsection 40(2) (personal
information of a third party). These are absolute exemptions and not
subject to the public interest test. We describe our reasons for applying
the exemptions, as follows.

(a) s 41 - information received which would constitute an actionable
breach of confidence

This exemption has been applied to some information contained in the
tender documentation received from Comensura, and to some information
contained in correspondence received from Comensura, both relating to
sensitive commercial information and to the negotiation of amendments to
the standard terms and conditions which has been included in an appendix
to the contract in order to assist in interpretation of the contract. In
particular, the exemption is applied to information relating to the
following:

* Comensura's Management Fee/Margin/Mark-up rate;
* Supplier mark-up rates and terms and conditions;
* technology specification;
* operating policies and procedures, in relation to management
information system C-net or otherwise;
* details of the names, contact details and CVs of Comensura staff;
* other commercially sensitive information which relates to Comensura's
unique business model or infrastructure of service delivery and which
is not in the public domain.

It is contended that the information was provided to the City in
confidence and continues to have the necessary quality of confidence and
that disclosure of the information would give rise to an actionable breach
of confidence. It has been held that elements of a contract or agreement,
for example technical information and records of pre-contractual
negotiations obtained from the contractor, may qualify as confidential
information. (We refer to the case of: Derry City Council v Information
Commissioner [2006], Information Tribunal, 11 December 2006, Ref:
EA/2006/0014.)

(b) s 40(2) - personal data of third parties

This exemption is applied to the following information:

* regarding employees of Comensura, the names, contact details and CVs
of Comensura staff;
* regarding employees of the CoL, the names and contact details of
junior staff and the contact details of more senior staff except where
they are already published as a point of contact for the public.

Comensura's data

The disclosure of name and details of a contractor's staff included in the
contract is likely to breach the First Data Protection Principle in that
it would be unfair to the individual to disclose private personal
information which has been provided to the contractor and then to the
public authority on the basis of the individual's employment with the
contractor. The Information Tribunal has upheld the view that "to release
the name of an individual's employer would be to release significant
personal data" (Refer paragraph 25 of Appeal Number EA/2007/0058 of 5
February 2008, the Yorkshire Forward case, which can be found at
[1]http://www.informationtribunal.gov.uk/De...), and hence
could be a breach of the Data Protection Principles under the Data
Protection Act 1998 (DPA). However, where we may consider that s40(2)
might not apply, we would consider applying s43(2), subject to
consideration of the public interest test, as referred to above.

City's data

We apply the FOIA section 40(2) exemption (personal information) to
disclosure of names and contact details of post holders below divisional
head level. We consider that where someone works, and who is their
employer, is personal information, just as such employment details would
be considered in the private sector. As mentioned above, the Information
Tribunal has upheld the view that "to release the name of an individual's
employer would be to release significant personal data", and hence could
be a breach of the Data Protection Principles under the Data Protection
Act 1998 (DPA). In accordance with this we would apply the exemption to
disclosure to the personal data of junior post holders covered by the
request. The exemption is engaged as we consider that a breach of the Data
Protection Principles under the DPA would occur because of disclosure. In
this instance, we consider that the First Data Protection Principle would
be breached by disclosure, ie the principle of fair and lawful processing.
There is no general expectation by staff that their place of work and work
contact details should be automatically disclosed following a FOI request,
which requests we have to treat as being in effect a disclosure to
everyone and anyone, ie it becomes fully public information. It is also
one of the reasons why the City's website gives only a few named contacts
(being mainly limited to departmental managers), and why, usually, generic
rather than individual email contact addresses are provided on our
website.

The disclosable names are contained in correspondence exchanged between
the parties in negotiating amendments to the standard terms and
conditions, which is otherwise covered by the extension required under the
public interest test. The officers are as follows:

Mr S Atkins - Exchequer & Business Support Director

Mr G Dowding - Strategic Procurement Manager (also mentioned in the ITT),
reporting to Mr S Atkins

- We attach the information requested under Part 1.2 of your request.

<<Job Categorys and Pay Rates.pdf>> <<Panel Vendors for Social Care
Agencies.pdf>>

- We will attach in a separate email (because it is too large to include
in this email) the information requested under Part 1.3 of your request,
the Panel Vendor Agreement. Please note that the information also falls
under Part 1.1 of your request as it forms part of the contract.

Please note that we were unable to open the website links which you kindly
provided.

If you wish to make a complaint about the way the City of London has
handled your enquiry under the FOIA, please make your complaint in writing
to email address: [City of London Corporation request email] (emails sent to
which address are seen by four members of staff including the Corporate
Complaints Officer). For a link to the CoL's FOI complaints procedure,
please visit the following page, [2]www.cityoflondon.gov.uk/Feedback, at
the end of which is located the FOI complaints procedure. If, having used
the CoL's FOI complaints procedure, you are still dissatisfied, you may
request the Information Commissioner to investigate. The Information
Commissioner is a Crown appointment, responsible for monitoring compliance
with the Freedom of Information Act. Please contact: Information
Commissioner, Wycliffe House, Water Lane, Wilmslow, Cheshire, SK9 5AF.
Telephone: (01625) 545700. You may also like to visit the website of his
Office at: [3]http://www.ico.gov.uk/.

The CoL holds the copyright in this communication. The supply of it does
not give a right to re-use it in a way that would infringe that copyright,
for example, by making copies, publishing and issuing copies to the public
or to any other person. Brief extracts of any of the material may be
reproduced under the fair dealing provisions of the Copyright, Designs and
Patents Act 1988 (sections 29 and 30) for the purposes of research for
non-commercial purposes, private study, criticism, review and news
reporting, subject to an acknowledgement of the copyright owner.

City of London
[4]www.cityoflondon.gov.uk

show quoted sections

As mentioned in our FOI RFI: Blair, wef 9 Feb 2009 - Interim Response
(part 1), please find attached the Invitation to Tender, in part response
to your Part 1.1.

<<ITT.pdf>>

City of London
[1]www.cityoflondon.gov.uk

show quoted sections

*** You have a secure file transfer awaiting download. Details enclosed.
***

--------------------------------------------------------------------------

FROM: [email address]
TO: [FOI #7776 email]
([FOI #7776 email])
SUBJECT: FOI RFI: Blair, wef 9 Feb 2009 - Interim Response (part 3)

FILE TRANSFER WAITING:
Click the secure link to download.
[1]http://cityoflondon.leapfile.com/get.jsp...
(TRANSFER EXPIRES 20 March, 2009 16:15)

--------------------------------------------------------------------------

Message sent on behalf of email address
'[City of London Corporation request email]':

FOI RFI: Blair, wef 9 Feb 2009 - Interim Response (part 3)

As mentioned in our FOI RFI: Blair, wef 9 Feb 2009 - Interim Response
(part 1), please find linked a PDF of the Panel Vendor Agreement. We were
unable to send it as an email attachment.

City of London

[2]www.cityoflondon.gov.uk

Secure file delivery by LeapFILE

References

Visible links
1. http://cityoflondon.leapfile.com/get.jsp...
2. https://exchange.leapfile.com/fts/fckedi...

Darren,

Please speak to Michael Gasson regarding this. This file was sent via leapfile and looking at the link he's sent us (Eric), I still do not understand what he requires. Ask Michael to speak to him.
Let me know when this is completed.

Thanks

show quoted sections

Eric,

I'll ask Michael to send as suggested, I assume whoever received the
request will have some sort of a link to a website where the requested
information can be uploaded?

David

show quoted sections

Following your request of 8 February 2009, and your clarifications of 9
and 10 February, our acknowledgement of 9 February, and our interim
response of 6 March, the City of London (CoL) responds as follows.

This email constitutes a final response, and a partial Refusal Notice
under the Freedom of Information Act 2000 (FOIA).

Please find attached one of two PDFs in completion of your request, the
remaining parts of the contract mentioned in our interim response.

<<Other Contractual Documents.pdf>>

The other PDF (135mb) is being sent in 14 emails. The CoL IT Services has
provided the following instructions: "Please ensure you have a working
copy of WinZip ([1]www.winzip.com). You will receive 14 further emails
from this address. Please copy all 14 e-mails to a directory on your
harddrive. Once complete, please launch the file 'Tender Split Final.Zip'.
This will launch Winzip, please extract the PDF from the Winzip
application."

These PDFs consist of: 1. the Tender Submission (via 14 emails); and 2.
other contractual documents (being correspondence exchanged between the
parties in pre-contractual negotiations), as attached. As detailed in our
interim response, the section 41 (information provided in confidence) and
subsection 40(2) (personal information of a third party) exemptions have
been applied to some information, and the CoL's reasons for applying them
were described. As we also mentioned, these are absolute exemptions and
not subject to the public interest test.

With regard to our recourse to section 10(3)(b) of the FOIA, and our
consideration of the application of the public interest test in relation
to the section 42 and section 43 exemptions, the CoL applies these
exemptions as follows.

In the CoL's view the Section 42 exemption (Legal Professional Privilege)
under the FOIA applies to some information you have requested,
specifically our responses contained in 2., which include in-house emails
containing legal advice from our legal department (known as the
Comptroller's and City Solicitor's Department) to the procurement team in
the finance department (known as the Chamberlain's Department). It is
considered that the public interest in maintaining the exemption and
withholding the information outweighs the public interest in disclosing
it. There is a strong element of public interest inbuilt into legal
professional privilege itself and at least equally strong countervailing
considerations must be adduced for the public interest to weigh in favour
of disclosure. (Please see: Bellamy v The Information Commissioner [2006]
UK Information Tribunal, Reference: EA/2005/0023). It is considered that
such equal or overriding considerations do not arise in this case. While
there is a public interest in disclosing information that enables scrutiny
of a public authority's actions and which encourages transparency in
decision-making, in this case with regard to the finalising of a contract,
nevertheless we consider the public interest weighs against disclosure.
The CoL departments demand and receive comprehensive advice which directly
affects the CoL's decision making. It is in the public interest that
public authorities are not disadvantaged in their legal affairs and are
allowed to conduct, in confidence, a free and frank exchange of
information without fear of intrusion. Whilst the information is shared in
this case with a specific contractor, it is in confidence and not with the
expectation of public disclosure by that contractor, which could
compromise the CoL's position in future negotiations with other
contractors.

With regard to section 41 (information provided in confidence) and
information contained in 1. and 2., it has already been noted in the
interim response that where elements of a contract, such as technical
information and records of pre-contractual negotiations, are obtained from
the contractor, the Information Tribunal has considered that these may
qualify as confidential information.

In the view of the CoL the section 43(1) exemption (trade secret) weighs
against disclosure in relation to the technology specification, management
and technical operating policies and procedures, and other commercially
sensitive information relating to the contractor's business model and
infrastructure of service delivery which is not in the public domain. It
is clear that Comensura is a market leader in the organisation of
provision of temporary staff. Its method of operation, IT system and
supporting documentation are clearly key to this, sufficiently so as to
constitute a trade secret. Disclosure of details relating to this
proprietary information, which has been provided in confidence and is not
in the public domain, would severely prejudice the commercial interests of
the contractor and the CoL. The specific harm which may occur is to the
competitive and financial position of the contractor; and to the financial
position of the CoL through the harm this may do to our ability to attract
tenders from market leaders in the private sector and the confidence of
third parties in doing business with us. This exemption is subject to the
public interest test. It is difficult to see any public interest in
disclosure of this information, whilst the public interest against
disclosure is clear. Disclosure would materially affect a market leader's
competitive advantage, adversely affecting future innovation and
development (seen as beneficial to society at large) as failure to protect
proprietary information would result in the financial and other benefits
of such innovation not being realised. Further, disclosure would make the
CoL's position untenable in its endeavour to attract cost-effective
leaders in their fields. Neither of these outcomes would be in the public
interest.

The CoL also applies the section 43(2) exemption (prejudice to the
commercial interests of any person) to the non-disclosures of parts of 1.
and 2. In particular the exemption applies in relation to the following
information

* Comensura's management fee/margin/mark-up rate;
* supplier mark-up rates and terms and conditions;
* technology specification;
* operating policies and procedures, in relation to management
information system C-net or otherwise;
* other commercially sensitive information which relates to Comensura's
unique business model or infrastructure of service delivery and which
is not in the public domain;
* correspondence exchanged between the parties in pre-contractual
negotiations.

We consider that disclosure of the information may prejudice the
commercial interests of the contractor and ourselves. The specific harm
which may occur is to the competitive position of the contractor; and to
the financial position of ourselves through the harm this may do to our
ability to attract tenders from market leaders in the private sector and
the confidence of third parties in doing business with us. The CoL finds
the likelihood of this occurring more likely than not. It is impossible to
imagine that, were these areas of the tender submission and
pre-contractual correspondence publicly disclosed, competitors would not
take advantage of the information, with consequent considerable harm to
the contractor, and to the reputation of the CoL in dealing fairly with
contractors.

The section 43(2) exemption is subject to the public interest test. The
public interest arguments in favour of disclosure of such information have
been well rehearsed in guidance. They would be:

(i) The desirability of furthering the understanding of, and participation
in, public debate on procurement.

(ii) Facilitating accountability and transparency of public authorities
for their procurement decisions.

(iii) Facilitating accountability and transparency in the spending of
public money.

Nevertheless, in the view of the CoL the application of the public
interest test in relation to the section 43(2) exemption weighs against
disclosure. Whilst all bidders operate in the same industry sector their
responses and approaches to work varied significantly. Some responses are
more complementary to the CoL's way of working than others. The CoL relies
on the expertise of service providers to propose innovative solutions that
could potentially improve and enhance the practices and operations of the
CoL in relation to recruitment of temporary staff. In particular the
responses were supposed to reflect contractors' methodology, attitude to
work, creativity, quality control and customer service that tend to make
up a company's competitive advantage. Building up and sustaining
competitive advantage can take a considerable amount of time, effort,
money and managerial vision. Revealing the contractor's detailed approach
to the work would be likely to prejudice their commercial interest by
exposing their working practices to the wider business community, who
could unduly benefit from their professionalism and expertise in a way
which would undermine a contractor's competitive advantage, severely
discouraging inventive, innovative solutions and reducing the incentive to
invest in development which is beneficial to society at large. It would
also harm the CoL's ability to attract tenders from market leaders in the
private sector and the confidence of third parties in doing business with
us, especially where there is scope for such companies to find alternative
business in the private sector, as would be the case with a company such
as Comensura, which is providing the sort of service which is required in
all sectors of the community.

In addition, the contract is designed to deliver efficiencies, quality and
value for money in administering and coordinating the placing of temporary
staff; the know-how of doing so by the contractor and/or public authority
is likely to be of limited value to the public, providing that the
Authority is able to demonstrate that it is obtaining best value from the
contract, which it considers it can.

With regard to disclosure of specific pricing, as opposed to the overall
cost of a contract, this would have an immediate effect on the
competitiveness of a company. It may also encourage unscrupulous
undercutting in making tender bids to the CoL which could not be sustained
in practice, possibly resulting in unsatisfactory service provision and
time-wasting disputes. This would not be in the public interest.

Additionally in respect of information contained in correspondence
exchanged in pre-contractual negotiations, disclosure would be prejudicial
as it would compromise the ability of the CoL to negotiate effectively to
secure best value for money in the future and would be detrimental to the
CoL's bargaining position in future negotiations with suppliers. There is
a public interest in scrutinising both the procedures of awarding a public
sector contract and in how public money is spent. However, in respect of
this information the public interest weighs against disclosure as it is
not in the public interest to reveal either party's negotiating position
in a commercially sensitive transaction; it is not in the public interest
to compromise future tendering processes by release of information
regarding pre-contractual negotiations; and public debate would receive
little illumination from the information in respect of which the exemption
is maintained as the details of the contractual terms which were agreed
following the negotiations have been disclosed.

The CoL therefore finds that, if the information listed above were placed
within the public domain, there is a real and significant risk of harm to
the commercial position of the contractor and the CoL, which is not
outweighed by any public interest in disclosure; and that, on the
contrary, the public interest weighs heavily against disclosure.

In conclusion, in relation to the section 42, section 43(1) and section
43(2) exemptions, the CoL does not find that the public interest in
disclosure of the exempted information outweighs the public interest in
non-disclosure.

Please note that emails of the following dates have been redacted entirely
from 2. in reliance upon the exemptions noted above: 5/2/2008, 22/4/2008
to 30/4/2008, 6/5/2008, 12/5/2008, 17/6/2008, 18/6/2008, 16/7/2008,
13/8/2008, 18/8/2008.

If you wish to make a complaint about the way the CoL has handled your
enquiry under the FOIA, please make your complaint in writing to email
address: [email address]. For a link to the CoL's FOI
complaints procedure, please visit the following page:
[2]www.cityoflondon.gov.uk/Feedback, at the end of which is located the
FOI complaints procedure. If, having used the CoL's FOI Complaints
Procedure, you are still dissatisfied, you may request the Information
Commissioner to investigate. Please contact: Information Commissioner,
Wycliffe House, Water Lane, Wilmslow, Cheshire, SK9 5AF. Tel: (01625)
545700. Website: [3]http://www.ico.gov.uk/.

The CoL and Comensura holds the copyright in this communication and
related documents, including those sent with the response of 9 March. The
supply of these does not give a right to re-use them in a way that would
infringe that copyright, for example, by making copies, publishing and
issuing copies to the public or to any other person. Brief extracts of any
of the material may be reproduced under the fair dealing provisions of the
Copyright, Designs and Patents Act 1988 (sections 29 and 30) for the
purposes of research for non-commercial purposes, private study,
criticism, review and news reporting, subject to an acknowledgement of the
copyright owner.

City of London
[4]www.cityoflondon.gov.uk

show quoted sections

<<Tender Submission Final.z02>>

City of London
[1]www.cityoflondon.gov.uk

show quoted sections

<<Tender Submission Final.z03>>

City of London
[1]www.cityoflondon.gov.uk

show quoted sections

<<Tender Submission Final.z04>>

City of London
[1]www.cityoflondon.gov.uk

show quoted sections

<<Tender Submission Final.z05>>

City of London
[1]www.cityoflondon.gov.uk

show quoted sections

<<Tender Submission Final.z06>>

City of London
[1]www.cityoflondon.gov.uk

show quoted sections

<<Tender Submission Final.z07>>

City of London
[1]www.cityoflondon.gov.uk

show quoted sections

<<Tender Submission Final.z08>>

City of London
[1]www.cityoflondon.gov.uk

show quoted sections

<<Tender Submission Final.z09>>

City of London
[1]www.cityoflondon.gov.uk

show quoted sections

<<Tender Submission Final.z10>>

City of London
[1]www.cityoflondon.gov.uk

show quoted sections

<<Tender Submission Final.z11>>

City of London
[1]www.cityoflondon.gov.uk

show quoted sections

<<Tender Submission Final.z12>>

City of London
[1]www.cityoflondon.gov.uk

show quoted sections

<<Tender Submission Final.zip>>

City of London
[1]www.cityoflondon.gov.uk

show quoted sections

<<Tender Submission Final.z13>>

City of London
[1]www.cityoflondon.gov.uk

show quoted sections

Thank you for your email.

As explained in the response of 3 April 2009, the PDF (which is the only
format available apart from hard copy) was sent to you in fourteen
separate parts. You were not sent 14 duplicate emails.

The document has now been re-scanned in and is available in 58mb PDF,
and is being sent to you in six parts, ie in six emails further to this
one (marked "RE. 1", "RE 2", etc). Please ensure you have a working copy
of WinZip, downloadable from www.winzip.com. Please copy all six e-mails
to a directory on your hard drive. Once complete, please launch the file
'Tender Split Final.Zip'. This will launch Winzip, please extract the
PDF from the Winzip application.

We are of course able to provide the document in hard copy should you
wish to supply a postal address.

We consider that this fulfils our obligations under section 11 of the
Freedom of Information Act 2000. However, should you wish to make a
complaint, please make use of the contact details provided under the
CoL's response of 3 April 2009.

City of London
www.cityoflondon.gov.uk

show quoted sections

<<Tender Submission - WDTK Split.z01>>

City of London
[1]www.cityoflondon.gov.uk

show quoted sections

<<Tender Submission - WDTK Split.z02>>

City of London
[1]www.cityoflondon.gov.uk

show quoted sections

<<Tender Submission - WDTK Split.z03>>

City of London
[1]www.cityoflondon.gov.uk

show quoted sections

<<Tender Submission - WDTK Split.zip>>

City of London
[1]www.cityoflondon.gov.uk

show quoted sections

<<Tender Submission - WDTK Split.z04>>

City of London
[1]www.cityoflondon.gov.uk

show quoted sections

<<Tender Submission - WDTK Split.z05>>

City of London
[1]www.cityoflondon.gov.uk

show quoted sections