DocuSign Envelope ID: 35B47601-E1CA-49EF-B405-3E0F8023715E
CONTRACT VARIATION
VARIATION TO CONTRACT FORM
CONTRACT FOR THE PROVISION OF: Employers’ Organisation Services
CONTRACT REF: C0454 VARIATION No 2 2021/22DATE:01/11/2021
BETWEEN:
(1)
THE SECRETARY OF STATE FOR HEALTH AND SOCIAL CARE acting as
part of the Crown through the Department of Health and Social Care of 39 Victoria
St, Westminster, London SW1H 0EU (which expression includes its successors and
assignees) ("the Authority”); and
(2)
THE NHS CONFEDERATION, a registered charity (number 1090329),
incorporated and registered in England and Wales with company number 04358614
and whose registered office is at 2nd Floor, 18 Smith Square, London, England,
SW1P 3HZ ("the Contractor")
(together the “Parties”)
BACKGROUND
(A)
The Authority and the Contractor are party to an agreement for the provision of
employers’ organisation services which commenced on 1 April 2010 (as varied) (the
Contract).
(B)
Pursuant to Clause 2.1 of the Contract the Parties have conducted a review of the
Contract. To ensure that the Contract remains accurate and up-to-date and, where
appropriate, is in line with the HMG Model Services Contract, the Parties wish to make
the following amendments to the Contract as set out below with effect from 1 April 2021
(Variation Date).
DocuSign Envelope ID: 35B47601-E1CA-49EF-B405-3E0F8023715E
Agreed terms
1
Terms defined in the Contract
In this variation agreement, expressions defined in the Contract and used in this
variation agreement have the meaning set out in the Contract.
2
Consideration
In consideration of the mutual promises set out in this variation agreement, the Parties
agree to amend the Contract as set out below.
3.
Variation
3.1
With effect from the Variation Date the Parties agree to amend the Contract as set out
at Schedule 1 of this variation agreement.
3.2
Except as set out in clause 3.1, the Contract shall continue in full force and effect.
4.
Conformed copy
The Parties acknowledge that the Contract as amended by this variation agreement
shall be read and construed as the same appears as a conformed copy attached as
Schedule 2 to this variation agreement.
5.
Governing law and jurisdiction
5.1
This variation agreement and any dispute or claim (including non-contractual disputes
or claims) arising out of or in connection with it or its subject matter or formation shall
be governed by and interpreted in accordance with the law of England and Wales.
5.2
The Parties irrevocably agree that the courts of England and Wales have exclusive
jurisdiction to settle any dispute or claim (including non-contractual disputes or claims)
that arises out of, or in connection with, this variation agreement or its subject matter
or formation.
2
DocuSign Envelope ID: 35B47601-E1CA-49EF-B405-3E0F8023715E
This agreement is effective from the Variation Date.
SIGNED:
For: The Authority
For: The Contractor
By: Sarah Parker, Deputy Director
By: Danny Mortimer, CEO of NHS Employers
Full Name:
Sarah Parker
Full Name:
Danny Mortimer
Job Title/Role: DD Commercial
Job Title/Role: CEX: NHS Employers
Date:
11.11.21
Date:
08/11/21
For: The Contractor
By: Victor Adebowale, Chair of the Board of
Full Name:
Victor Adebowale
Job Title/Role: Chair NHS Confederation
Date:
8/11/21
3
DocuSign Envelope ID: 35B47601-E1CA-49EF-B405-3E0F8023715E
SCHEDULE 1
Amendments
The Contract is varied as follows:
(a)
Section (C) at Introduction shall be amended to read as follows:
(C)
As part of a reorganisation between the Contractor, The NHS Confederation
Group Company (
NHSG) and The NHS Confederation (Employers)
Company Limited (
NHSE)2, NHSE and NHSG now wish to be released from all
obligations in respect of the future performance of the Contract from and
including 1 April 2014 and all liabilities from the commencement date in the
Contract and the Authority has agreed to give such release upon the
undertaking that the Contractor be bound by the Contract in place of NHSE
and NHSG. The Parties have agreed to the transfer on the terms set out in the
Deed of Novation.3
(b)
The following definitions at Clause 1. DEFINITIONS AND INTERPRETATIONS shall
be amended to read as follows:
“2004 Contract Variations” means those variations to the 2004 Contract which did not
terminate on the Commencement Date and which are listed in Section Ten – 2004
Contract Variations.
"Authority's Representative" means the person nominated in Section Four -
Administrative Instructions authorised to act on behalf of the Secretary of State for
Health and Social Care.
“Commercially Sensitive Information" means the information listed in the table in
Section Thirteen which is of a commercially sensitive nature relating to the Contractor,
its Intellectual Property Rights or its business or which the Contractor has indicated to
the Authority that, if disclosed by the Authority, would cause the Contractor significant
commercial disadvantage or material financial loss.
"Confidential Information" means information that falls within the types of information
that has been specifically designated in writing as confidential by either Party or that
which ought to be considered as confidential (however it is conveyed or on whatever
media it is stored) including information which relates to the business, affairs,
4
DocuSign Envelope ID: 35B47601-E1CA-49EF-B405-3E0F8023715E
properties, assets, trading practices, goods/services, developments, trade secrets,
Intellectual Property Rights, know-how, personnel, customers and suppliers of either
Party, all personal data and sensitive personal data within the meaning of the Data
Protection Act 2018.
"Contract" shall mean the agreement concluded between the Authority and the
Contractor, as varied in accordance with Clauses 3 and 5, consisting of the following
Sections which shall be read as one document and which, in the event of ambiguity or
contradiction between Sections, shall be given precedence in the order listed;
(i)
Section One – Scope of Work
(ii)
Section Two – Performance, Financial Reports and Audit Rights
(iii)
Section Three – Not Used
(iv)
Section Four – Administrative Instructions
(v)
Section Five – Variation to Contract Form
(vi)
Section Six – Expert Staff
(vii)
Section Seven - Relevant Employees
(viii)
Section Eight – Price Adjustment Illustration
(ix)
Section Nine – Governance
(x)
Section Ten – 2004 Contract Variations
(xi)
Section Eleven – Service Continuity Plan
(xii)
Section Twelve – Corporate Social Responsibility
(xiii)
Section Thirteen – Commercially Sensitive Information
"Contract Period" shall be the period for which the Contract shall continue as specified
in Clause 2.
“Counsel’s Opinion” means the written advice of James Ramsden of 4-5 Gray’s Inn
Square (“Counsel”) dated 8th June 2010 as attached to the 2010 Contract at Annex A.
“Data Protection Legislation” means the General Data Protection Regulation ((EU)
2016/679) as incorporated into, amended and applied under UK law (UK GDPR), the
Data Protection Act 2018, the Privacy and Electronic Communications (EC Directive)
Regulations 2003 and any replacement legislation coming into effect from time to time
and any other applicable laws relating to the processing of Personal Data.
5
DocuSign Envelope ID: 35B47601-E1CA-49EF-B405-3E0F8023715E
“Governance Plan” means the governance plan set out in Section Nine – Governance.
"Handover Period" means the period, to be agreed between the Parties which shall not
exceed twenty-six (26) weeks preceding termination or expiration of the Contract.
"Relevant Employee" means any of those individuals listed in Section Seven –
Relevant Employees who remain in the employment of the Contractor.
“Services" means the services to be performed under the Contract by the Contractor
as set out in Section One – Scope of Work.
"SHA Employee" means those staff who were previously employed by a Strategic
Health Authority and who were the subject of a TUPE transfer to NHS Employers on 1
April 2013 and whose details are recorded in Section Seven - Relevant Employees.
(c)
The following definitions at Clause 1. DEFINITIONS AND INTERPRETATIONS shall
be deleted:
"Service Schedules" means any of the individual programmes of work provided for in
Section 3 at the date concerned.
"Staff" means all persons used by the Contractor to perform the Services.
(d)
The following definitions shall be added at Section 1. DEFINITIONS AND
INTERPRETATIONS:
"2010 Contact” means the contract for the provision of employers’ organisation
services entered into between the Contractor and the Authority dated 8 July 2010.
“Audit Agents” means: (a) the Authority’s internal and external auditors; (b) the
Authority’s statutory or regulatory auditors; (c) the Comptroller and Auditor General,
their staff and/or any appointed representatives of the National Audit Office; (d) HM
Treasury or the Cabinet Office; (e) any party formally appointed by the Authority to
carry out audit or similar review functions; and (f) successors or assigns of any of the
above.
6
DocuSign Envelope ID: 35B47601-E1CA-49EF-B405-3E0F8023715E
“Business Continuity Plan” has the meaning given in paragraph 1.2(a)(ii) of Section
Eleven – Service Continuity Plan.
“Business Continuity Services” has the meaning given in paragraph 3.2 of Section
Eleven – Service Continuity Plan.
“Contract Year” means a period of twelve (12) consecutive months (or such shorter
period if this Contract expires or is terminated earlier) commencing on the
Commencement Date and/or each subsequent anniversary of the Commencement
Date thereafter and “Contract Years” shall be construed accordingly.
“Contract Year 1” means the twelve (12) month period commencing on 1 April 2010
and expiring on 31 March 2011.
“Contract Year 2” means the twelve (12) month period commencing on 1 April 2011
and expiring on 31 March 2012.
“Contract Year 3” means the twelve (12) month period commencing on 1 April 2012
and expiring on 31 March 2013.
“Contract Year 4” means the twelve (12) month period commencing on 1 April 2013
and expiring on 31 March 2014.
“Contract Year 5” means the twelve (12) month period commencing on 1 April 2014
and expiring on 31 March 2015.
“Contract Year 6” means the twelve (12) month period commencing on 1 April 2015
and expiring on 31 March 2016.
“Contract Year 7” means the twelve (12) month period commencing on 1 April 2016
and expiring on 31 March 2017.
“Contract Year 8” means the twelve (12) month period commencing on 1 April 2017
and expiring on 31 March 2018.
7
DocuSign Envelope ID: 35B47601-E1CA-49EF-B405-3E0F8023715E
“Contract Year 9” means the twelve (12) month period commencing on 1 April 2018
and expiring on 31 March 2019.
“Contract Year 10” means the twelve (12) month period commencing on 1 April 2019
and expiring on 31 March 2020.
“Contract Year 11” means the twelve (12) month period commencing on 1 April 2020
and expiring on 31 March 2021.
“Contract Year 12” means the twelve (12) month period commencing on 1 April 2021
and expiring on 31 March 2022.
“Contractor Personnel” means all directors, officers, employees, agents, consultants
and contractors of the Contractor and/or of any sub-contractor engaged in the
performance of the Contractor’s obligations under the Contract.
“Department” means a body listed in one of the following sub-categories of the Central
Government classification of the Public Sector Classification Guide, as published and
amended from time to time by the Office for National Statistics: (a) Government
Department; or (b) Non-Ministerial Department.
“Disaster” the occurrence of one or more events which, either separately or
cumulatively, mean that the Services, or a material part of the Services will be
unavailable for a period of 48 hours or which is reasonably anticipated will mean that
the Services or a material part of the Services will be unavailable for that period.
“Disaster Recovery Plan” has the meaning given in paragraph 1.2(a)(iii) of Section
Eleven – Service Continuity Plan.
“Disaster Recovery Services” means the services embodied in the processes and
procedures for restoring the Services following the occurrence of a Disaster.
“Disaster Recovery System” means the system identified by the Contractor which shall
be used for the purpose of delivering the Disaster Recovery Services.
8
DocuSign Envelope ID: 35B47601-E1CA-49EF-B405-3E0F8023715E
“Financial Transparency Objectives” has the meaning given in paragraph 1 of Part A
of Section Two – Financial Reports and Audit Rights.
“Governance Board” means the body described in paragraph 3 of Section Nine –
Governance.
“Governance Board Member” means the initial persons appointed by the Authority and
Contractor to the Governance Board as set out in Part A of Section Nine – Governance
and any replacements from time to time agreed by the Parties in accordance with
paragraph 3.4 of Section Nine – Governance.
“Insolvency Continuity Plan” has the meaning given in paragraph 1.2(a)(iv) of Section
Eleven – Service Continuity Plan.
“Insolvency Event” with respect to any person, means: (a) that person 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: (i) (being a company or a LLP) is deemed
unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986,
or (ii) (being a partnership) is deemed unable to pay its debts within the meaning of
section 222 of the Insolvency Act 1986; (b) that person commences negotiations with
one or more of its creditors (using a voluntary arrangement, scheme of arrangement
or otherwise) with a view to rescheduling any of its debts, or makes a proposal for or
enters into any compromise or arrangement with one or more of its creditors or takes
any step to obtain a moratorium pursuant to Section 1A and Schedule A1 of the
Insolvency Act 1986 other than (in the case of a company, a LLP or a partnership) for
the sole purpose of a scheme for a solvent amalgamation of that person with one or
more other companies or the solvent reconstruction of that person; (c) another person
becomes entitled to appoint a receiver over the assets of that person or a receiver is
appointed over the assets of that person; (d) a creditor or encumbrancer of that person
attaches or takes possession of, or a distress, execution or other such process is levied
or enforced on or sued against, the whole or any part of that person’s assets and such
attachment or process is not discharged within fourteen (14) days; (e) that person
suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial
part of its business; (f) where that person is a company, a LLP or a partnership: (i) a
petition is presented (which is not dismissed within fourteen (14) days of its service), a
notice is given, a resolution is passed, or an order is made, for or in connection with
9
DocuSign Envelope ID: 35B47601-E1CA-49EF-B405-3E0F8023715E
the winding up of that person other than for the sole purpose of a scheme for a solvent
amalgamation of that person with one or more other companies or the solvent
reconstruction of that person; (ii) 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 filed at Court or given or if an administrator is appointed, over that
person; (iii) (being a company or a LLP) the holder of a qualifying floating charge over
the assets of that person has become entitled to appoint or has appointed an
administrative receiver; or (iv) being a partnership) the holder of an agricultural floating
charge over the assets of that person has become entitled to appoint or has appointed
an agricultural receiver; or (g) any event occurs, or proceeding is taken, with respect
to that person in any jurisdiction to which it is subject that has an effect equivalent or
similar to any of the events mentioned above.
“Key Performance Indicators” means the measurable target that demonstrates how
effectively the Contractor is achieving the key contract objectives.
“Open Book Data” complete and accurate financial and non-financial information which
is sufficient to enable the Authority to verify the charges already paid or payable and
charges forecast to be paid during the remainder of the Contract Period, including
details and all assumptions relating to: (a) the Contractor’s costs broken down against
each Service and/or Deliverable, including actual capital expenditure (including capital
replacement costs) and the unit cost and total actual costs of all hardware and
software; (b) operating expenditure relating to the provision of the Services including
an analysis showing: (i) the unit costs and quantity of consumables and bought-in
services; (ii) manpower resources broken down into the number and grade/role of all
Contractor Personnel (free of any contingency) together with a list of agreed rates
against each manpower grade; (iii) a list of costs underpinning those rates for each
manpower grade, being the agreed rate less the Contractor’s profit margin; and (iv)
reimbursable expenses; (c) overheads; (d) all interest, expenses and any other third
party financing costs incurred in relation to the provision of the Services; (e) the profit
achieved over the Contract Period and on an annual basis; (f) confirmation that all
methods of cost apportionment and overhead allocation are consistent with and not
more onerous than such methods applied generally by the Contractor; (g) an
explanation of the type and value of risk and contingencies associated with the
provision of the Services, including the amount of money attributed to each risk and/or
contingency; and (h) the actual costs profile for each Service.
10
DocuSign Envelope ID: 35B47601-E1CA-49EF-B405-3E0F8023715E
“Prohibited Act” means: (a) to directly or indirectly offer, promise or give any person
working for or engaged by the Authority a financial or other advantage to: (i) induce that
person to perform improperly a relevant function or activity; or (ii) reward that person for
improper performance of a relevant function or activity; (b) to directly or indirectly
request, agree to receive or accept any financial or other advantage as an inducement or a
reward for improper performance of a relevant function or activity in connection with the
Contract; (c) an offence: (i) under the Bribery Act 2010 (or any legislation repealed or
revoked by such Act); (ii) under legislation or common law concerning fraudulent acts; or
(iii) defrauding, attempting to defraud or conspiring to defraud the Authority (including
offences by the Contractor under Part 3 of the Criminal Finances Act 2017); or (d) any
activity, practice or conduct which would constitute one of the offences listed under (c)
above if such activity, practice or conduct had been carried out in the UK.
“quarter” means a calendar quarter.
“Related Service Provider” means any person who provides services to the Authority
in relation to the Contract from time to time.
“Relevant Requirements” means all applicable law relating to bribery, corruption and
fraud, including the Bribery Act 2010 and any guidance issued by the Secretary of
State for Justice pursuant to section 9 of the Bribery Act 2010.
“Review Report” has the meaning given in paragraph 6.2 of Section Eleven – Service
Continuity Plan.
“Service Continuity Plan” means the plan prepared pursuant to paragraph 1 of Section
Eleven – Service Continuity Plan which incorporates the Business Continuity Plan,
Disaster Recovery Plan and the Insolvency Continuity Plan.
“Variation Date” means 1 April 2021.
"Work Programmes" means any of the services provided for in Section One – Scope
of Work and within the principal service areas set out in paragraph 2 of Section One –
11
DocuSign Envelope ID: 35B47601-E1CA-49EF-B405-3E0F8023715E
Scope of Work at the date concerned (previously referred to as Service Schedules
prior to Contract Year 12).
(e)
Clause 1.2 (f) at Clause 1.2 shall be amended as follows:
(f)
references to "Authority" shall include any designated person who is
authorised to act on behalf of the Secretary of State for Health and
Social Care in matters pertaining to the Contract;
(f)
Clause 2.1 and 2.2 at Clause 2 TERM OF CONTRACT shall be amended as follows:
2.1
Subject always to Clause 2.3, and subject to the right of the Authority to
terminate the Contract in accordance with Clauses 25, 26 and 27, the
Contractor shall continue to provide the Services for a period of three years
and, thereafter shall continue to supply the Services until the Contract is
terminated in accordance with any of the provisions of Clauses 25, 26 and 27.
2.2
The following provision shall apply to all Contract Years prior to Contract Year
12: Notwithstanding Clause 2.1 above, the Contract, if continuing in force, shall
be reviewed every three years, or earlier if requested by either Party, to
determine whether it remains 'fit for purpose' or requires revision to reflect the
obligations of the Parties under the Contract. The first review to be completed
by 1 April 2014. To facilitate the review the Parties shall meet no later than three
months prior to each review to determine together the scope of the review and
process to be followed to ensure that the review is completed by the due date.
(g)
Clause 2.3 shall be added at Clause 2. TERM OF CONTRACT:
2.3
Subject to the right of the Authority to terminate the Contract in accordance
with Clauses 25 and 26 and with effect from the Variation Date the Contractor
shall supply the Services for a period of twelve (12) months, following which,
unless the Contract is terminated in accordance with its terms, the Contractor
shall continue to supply the Services until the Contract is terminated in
accordance with its terms.
(h)
Clause 3.2 and 3.3 at Clause 3 SERVICES shall be amended as follows:
12
DocuSign Envelope ID: 35B47601-E1CA-49EF-B405-3E0F8023715E
of the Services for the year in which it applies and shall be determined
in accordance with Clause 5.
4.2
The following shall apply to all Contract Years from Contract Year 12 onwards.
The Contract Price will be determined annually and take effect from the
Variation Date, and subsequently on each anniversary of the Variation Date for
the Contract Year in question. The Contract Price shall be fully inclusive of the
carrying out of the Services for the year in which it applies and shall be
determined in accordance with Clause 5.11.
(j)
The following provision shall be added before Clause 5.1 at Clause 5 PRICE
ADJUSTMENT DURING THE LIFE OF THE CONTRACT:
The following Clauses 5.1 to 5.4 inclusive shall apply to all Contract Years prior to, and
inclusive of, Contract Year 4 only:
(k)
Clause 5.1.6 at Clause 5 PRICE ADJUSTMENT DURING THE LIFE OF THE
CONTRACT shall be amended as follows:
5.1.6 The Parties hereby acknowledge and agree that the Contract Price, calculated
in accordance with the mechanism in Clause 5.1, will be reduced by a further
2.65% for each of Contract Year 2, Contract Year 3 and Contract Year 4.
(l)
The words “programmes of work” in clause 5.3(b) at Clause 5 – PRICE ADJUSTMENT
DURING THE LIFE OF THE CONTRACT shall be amended to read “Work
Programmes”.
(m)
Clause 5.4 at Clause 5 PRICE ADJUSTMENT DURING THE LIFE OF THE
CONTRACT shall be amended as follows:
5.4 Illustrations of the way the price adjustment mechanism contained in Clause 5.1 shall
operate during Contract Years 1 to 4 are contained in Section Eight.
(n)
The following provision shall be added before Clause 5.5 at Clause 5 PRICE
ADJUSTMENT DURING THE LIFE OF THE CONTRACT:
14
DocuSign Envelope ID: 35B47601-E1CA-49EF-B405-3E0F8023715E
The following Clauses 5.5 to 5.10 inclusive shall apply to Contract Years 5 to 11 only:
(o)
Clauses 5.6 and 5.7 at Clause 5 PRICE ADJUSTMENT DURING THE LIFE OF THE
CONTRACT shall be amended as follows:
5.6
Section 3 – Scope of Work within the 2010 Contract provides for the Authority
and the Contractor to mutually agree a reprioritisation of the services to be
provided under the Work Programmes. The Contractor agrees to (i) inform the
Authority of any reduction in the cost for the provision of the services that arises
as a result of the reprioritisation and (ii) agree with the Authority how any such
cost savings are to be re-invested in the services under the Work Programmes.
5.7
In addition to Clause 5.6 above the Parties hereby acknowledge that the
services agreed between the Authority and the Contractor may be varied within
that year. Where specific elements of the services cease in any one year the
Parties will agree how any balance of the attributable costs included in the
Contract Price for that year are re-deployed on other elements of the services.
The Work Programmes will be amended to reflect that change.
(p)
Clause 5.10 at Clause 5 PRICE ADJUSTMENT DURING THE LIFE OF THE
CONTRACT shall be amended as follows:
5.10
The price entered in the schedules shall include travel, subsistence costs
including overnight allowances and attendance at meetings as necessary in
connection with the Contract.
(q)
The following shall be added after Clause 5.10 at Clause 5 PRICE ADJUSTMENT
DURING THE LIFE OF THE CONTRACT:
The following shall apply to all Contract Years from Contract Year 12 onwards:
5.11
The Contract Price will be adjusted each year in accordance with the following:
(a)
By the end of quarter 3 of each Contract Year, the Contractor shall
submit a pricing proposal to the Authority, on a mutually agreeable
template, outlining their request for funding for the following Contract
15
DocuSign Envelope ID: 35B47601-E1CA-49EF-B405-3E0F8023715E
Year and providing justification for that request, for example,
indexation.
(b)
The Authority may elect to reduce the Services required for the
following Contract Year. If the Authority does elect to reduce the
Services then the Contract Price will be reduced by a sum negotiated
between the Parties for the savings represented by the reduction in
Services to be provided by the Contractor. If, from the Variation Date,
the Contract continues, in 12 month increments, for a period up to
three Contract Years, the Parties hereby acknowledge and agree that
the aggregate total of the price reduction shall not be more than twenty
percent (20%) of the Contract Price which was applicable in Contract
Year 12. This is shown in the following worked example which is for
illustrative purposes only:
Contract Year
Value
Reduction
2021/22
9,219,219.60
2022/23
8,481,682.03
8.0%
2023/24
7,887,964.29
7.0%
2024/25
7,493,566.08
5.0%
If, from the Variation Date, the Contract continues in 12 month
increments, for a period up to three Contract Years, the Parties shall
review and agree on the process regarding any price reductions for
future years of the Contract.
(c)
The Parties shall use their reasonable endeavours to agree the
Contract Price for the subsequent year by 15 March prior to the next
anniversary of the Commencement Date of the Contract. In the event
that the Contract Price for the subsequent year is not agreed by 15
March and the Authority accepts that it is entirely responsible for the
delay then the Contract Price for the first three months of the
subsequent year will be the same as for the first three months of the
preceding year. If the Authority does not accept responsibility and the
Parties are unable to reach agreement then the matter will be resolved
under the dispute resolution procedure at Clause 34.
16
DocuSign Envelope ID: 35B47601-E1CA-49EF-B405-3E0F8023715E
(d)
The Contract Price shall be deemed to include full compliance with the
requirements of the Contract.
(e)
The Contract Price shall include travel, subsistence costs including
overnight allowances and attendance at meetings as necessary in
connection with the Contract.
(f)
Once agreed, the Contract Price is, unless otherwise expressly agreed
between the Parties, firm and fixed for the Contract Year.
5.12
Once the Parties have agreed the Contract Price for the relevant Contract Year
in accordance with Clause 5.11, the Parties agree to vary the Contract in
accordance with Clause 8 as soon as reasonably practicable in order to record
the agreed Contract Price in Section Fourteen – Contract Price.
5.13
In accordance with the variation procedure set out in Clause 8, the Authority
may exercise the right to vary the Contract Price during the subsequent
Contract Year.
5.14
Section One – Scope of Work provides for the Authority and the Contractor to
mutually agree a reprioritisation of the Services to be provided under the Work
Programmes. The Contractor agrees to:
(a)
inform the Authority of any reduction in the cost for the provision of the
Services that arises as a result of the reprioritisation; and
(b)
agree with the Authority how any such cost savings are to be re-
invested in the Services under the Work Programmes.
5.15
In addition to Clause 5.14 above, the Parties hereby acknowledge that the
annual services agreed between the Authority and the Contractor may be
varied within that year. Where specific elements of the services cease in any
one year, the Parties will agree how any balance of the attributable costs
included in the Contract Price for that year are re-deployed on other elements
of the services. The Work Programmes will be amended to reflect that change.
17
DocuSign Envelope ID: 35B47601-E1CA-49EF-B405-3E0F8023715E
(r)
Clause 7.2 at Clause 7 PAYMENT shall be amended as follows:
7.2 Any increase in the annual Contract Price arising as a result of any Variation
will be paid as provided for under Clause 7.1 above. Any other additional
payments arising as a consequence of the Variation will be paid as a one-off
payment or phased over the remaining payment period according to what is
appropriate for the nature/delivery of the work.
(s)
Clause 8.1 at Clause 8 VARIATION shall be amended as follows:
8.1 The Contract shall not be varied unless such variation is made in writing by
means of a Variation to Contract Form as set out in Section Five – Variation to
Contract Form (“Variation Form”).
(t)
The words “programme of work” at Clause 8.4 at Clause 8 – VARIATION shall be
amended to read “Work Programme”.
(u)
The words “programmes of work” in Clause 8.5(c) at Clause 8 – VARIATION shall be
amended to read “services”.
(v)
Clauses 8.6, 8.7 and 8.8 at Clause 8 VARIATION shall be amended as follows:
8.6
The price for any Variation will be agreed between the Parties and will be
calculated having regard to the costing methodology as agreed by the Parties
for that year. If the Parties are unable to agree the price for any Variation and
the Authority does not elect to reject that Variation under Clause 8.7 then in
accordance with paragraph 3.5.3 of Section Nine - Governance, the Parties will
escalate the matter to the Governance Board. If the Parties are unable to reach
an agreement at the Governance Board, then the matter shall be resolved in
accordance with the dispute resolution procedure at Clause 34.
8.7
In the event that the Contractor contends that a proposed Variation is
outstanding or continues to be required, the Contractor shall update the
information contained in their quotation for the proposed variation every month
18
DocuSign Envelope ID: 35B47601-E1CA-49EF-B405-3E0F8023715E
and shall send the updated information to the Authority. For the avoidance of
doubt, this clause applies to Contract Years 1 to 11 only.
8.8
The Authority shall approve or reject any Variation, such approval not to be
unreasonably withheld or delayed. In the event that the Contractor disputes
any decision by the Authority to reject a proposed Variation then in accordance
with paragraph 3.5.3 of Section Nine – Governance, the Parties will escalate
the matter to the Governance Board. If the Parties are unable to reach an
agreement at the Governance Board, then the matter shall be resolved in
accordance with the dispute resolution procedure at Clause 34.
(w)
Clauses 8.9 to 8.11 shall be added at Clause 8 VARIATION:
8.9
The Parties acknowledge that in the circumstances described in Clause 8.10
below in order to ensure operational efficiency it may be desirable to expedite
the processes set out above. In such circumstances, or where the Parties
otherwise agree, the Parties shall use the process set out in Clause 8.1 to 8.8
above but with reduced timescales as detailed in the Variation, or (if no such
periods are specified) such that any period of fourteen (14) days is reduced to
ten (10) days and period of seven (7) days is reduced to five (5) days.
8.10
If both Parties agree in relation to a proposed Variation that:
(a)
the total number of Variations in relation to which this expedited
procedure has been applied does not exceed two (2) within a quarter
(or such higher number as the Authority may determine from time to
time in writing); and
(b)
the proposed Variation is not significant (as determined by the
Authority acting reasonably),
then the Parties shall, unless agreed otherwise, use the timescales referred to
in Clause 8.9 in agreeing the Variation.
8.11
The parameters set out in Clause 8.9 may be revised from time to time by
agreement between the Parties in writing.
19
DocuSign Envelope ID: 35B47601-E1CA-49EF-B405-3E0F8023715E
(x)
Clauses 11.2 and 11.3 at Clause 11. CONTRACTOR’S PERSONNEL shall be
amended as follows:
11.2
The Contractor shall provide the Authority with a list setting out (i) the names
and grades of the Contractor Personnel with particular skills and knowledge
("Expert Staff") who are concerned with the Services or any part of them as at
1 April in any Contract Year specifying the capacities in which they are so
concerned; and (ii) the number of support staff who are concerned with the
Services or any part of them as at 1 April in any Contract Year. The list of Expert
Staff is annexed to this Contract at Section Six. The list will be reviewed and
amended by the Parties once each Contract Year at the time when the Contract
Price is determined in accordance with Clause 5, or at such other times or
intervals as may be agreed in writing between the Parties. Other than in
accordance with this annual review or where Expert Staff cease employment
with the Contractor in the Services whether by resignation, dismissal or other
cause no changes in Expert Staff shall be made without the prior approval of
the Authority and all changes to the list must be notified to the Authority in
writing. Any disputes arising will be dealt with in accordance with the dispute
resolution procedure at Clause 34.
11.3
The persons whose employment transferred to the Contractor under the 2004
Contract, as amended, or transferred from the former Prescription Pricing
Authority to the former South West Strategic Health Authority on or after the
Commencement Date for the Additional Services referred to in that contract
and identified by name in Section Seven – Relevant Employees will remain
members of a Relevant Pension Scheme or retain the right to join for the life of
the Contract, unless and until the Contractor chooses to offer and the individual
accepts alternative pension provision.
(y)
Clause 12.1 shall be deleted and the title at Clause 12 shall be amended to read NOT
USED.
(z)
Clauses 13.4 and 13.6 (d) at Clause 13. CONFIDENTIALITY shall be amended as
follows:
20
DocuSign Envelope ID: 35B47601-E1CA-49EF-B405-3E0F8023715E
13.4 Each Party shall comply with their respective obligations under the Data
Protection Act 2018, as they may be deemed to apply in performance of the
Contract, while accepting the over-riding legal or statutory obligations of
another Party to disclose information to a third party.
13.6 (d)
the Authority discloses to any Crown Body or other contracting
authority (as defined by Regulation 3 of the Public Contracts
Regulations 2015). Those Crown Bodies and contracting authorities
being entitled to further disclose the Confidential Information to other
Crown Bodies or contracting authorities on the basis that the
information is confidential and is not to be disclosed to a third party
which is not part of a Crown body or contracting authority.
(aa)
The following provision shall be added before Clause 15A.1 at Clause 15A
GOVERNANCE:
The following clauses 15A.1 to 15A.3 shall apply to Contract Years 1 to 11:
(bb)
The following provision shall be added after Clause 15A.3 at Clause 15A
GOVERNANCE:
The following shall apply to all Contract Years from Contract Year 12 onwards:
15A.4 Section Nine – Governance describes the governance structure and the
procedures that will be used to manage the relationship between the Authority
and the Contractor under the Contract.
(cc)
Clause 16 RIGHT TO AUDIT shall be deleted in its entirety and replaced with the
following:
16.
RECORDS, REPORTS, AUDIT AND OPEN BOOK DATA
16.1 The Parties shall comply with the provisions of Section Two – Financial Reports
and Audit Rights in relation to the maintenance of Open Book Data and the
exercise of the audit rights by the Authority or any Audit Agents.
21
DocuSign Envelope ID: 35B47601-E1CA-49EF-B405-3E0F8023715E
(dd)
Clauses 17.1, 17.2 and 17.4 at Clause 17 INDEMNITY AND INSURANCE shall be
amended as follows:
17.1
The Contractor shall indemnify the Authority fully against all Liabilities in respect
of any death or personal injury, or loss of or damage to property, which are
caused directly or indirectly by any act or omission of the Contractor in the
supply of the Services or the performance or non-performance by the
Contractor of its obligations under the Contract. This Clause 17.1 shall not apply
to the extent the Contractor is able to demonstrate that such death or personal
injury, or loss or damage was not caused or contributed to by its negligence or
default, or the negligence or default of the Contractor Personnel, or by any
circumstances within its or their control.
17.2
The Authority shall indemnify the Contractor fully against all Liabilities in respect
of any death or personal injury, or loss of or damage to property, which are
caused directly or indirectly by any act or omission of the Authority in the
performance or non-performance by the Authority of its obligations under the
Contract. This Clause 17.2 shall not apply to the extent the Authority is able to
demonstrate that such death or personal injury, or loss or damage was not
caused or contributed to by its negligence or default, or the negligence or
default of its staff or sub-contractors, or by any circumstances within its or their
control.
17.4 The Contractor shall hold employer's liability insurance in respect of the
Contractor Personnel in accordance with any legal requirement for the time
being in force.
(ee)
Clause 18 CORRUPT GIFTS AND PAYMENTS OF COMMISSION shall be deleted in
its entirety and replaced with the following:
18.
PREVENTION OF FRAUD AND BRIBERY
18.1
The Contractor represents and warrants that neither it, nor to the best of its
knowledge any Contractor Personnel, have at any time prior to the Variation
Date:
22
DocuSign Envelope ID: 35B47601-E1CA-49EF-B405-3E0F8023715E
(a)
committed a Prohibited Act or been formally notified that it is subject
to an investigation or prosecution which relates to an alleged
Prohibited Act; and/or
(b)
been listed by any government department or agency as being
debarred, suspended, proposed for suspension or debarment, or
otherwise ineligible for participation in government procurement
programmes or contracts on the grounds of a Prohibited Act.
18.2
The Contractor shall not during the term of the Contract:
(a)
commit a Prohibited Act; and/or
(b)
do or suffer anything to be done which would cause the Authority or
any of the Authority’s employees, consultants, contractors, sub-
contractors or agents to contravene any of the Relevant Requirements
or otherwise incur any liability in relation to the Relevant
Requirements.
18.3
The Contractor shall during the term of the Contract:
(a)
establish, maintain and enforce, and require that its sub-contractors
establish, maintain and enforce, policies and procedures which are
adequate to ensure compliance with the Relevant Requirements and
prevent the occurrence of a Prohibited Act;
(b)
have in place reasonable prevention measures (as defined in sections
45(3) and 46(4) of the Criminal Finance Act 2017) to ensure that
Associated Persons of the Contractor do not commit tax evasion
facilitation offences as defined under that Act;
(c)
keep appropriate records of its compliance with its obligations under
Clause 18.3(a) and make such records available to the Authority on
request; and
23
DocuSign Envelope ID: 35B47601-E1CA-49EF-B405-3E0F8023715E
(d)
take account of any guidance about preventing facilitation of tax
evasion offences which may be published and updated in accordance
with section 47 of the Criminal Finances Act 2017.
18.4
The Contractor shall immediately notify the Authority in writing if it becomes
aware of any breach of Clause 18.1 and/or 18.2, or has reason to believe that
it has or any of the Contractor Personnel have:
(a)
been subject to an investigation or prosecution which relates to an
alleged Prohibited Act;
(b)
been listed by any government department or agency as being
debarred, suspended, proposed for suspension or debarment, or
otherwise ineligible for participation in government procurement
programmes or contracts on the grounds of a Prohibited Act; and/or
(c)
received a request or demand for any undue financial or other
advantage of any kind in connection with the performance of the
Contract or otherwise suspects that any person or Party directly or
indirectly connected with the Contract has committed or attempted to
commit a Prohibited Act.
18.5
If the Contractor makes a notification to the Authority pursuant to Clause 18.4,
the Contractor shall respond promptly to the Authority's enquiries, co-operate
with any investigation, and allow the Authority to audit any books, records
and/or any other relevant documentation in accordance with Clause 16.
18.6
If the Contractor is in default under Clauses 18.1 and/or 18.2, the Authority may
by notice:
(a)
require the Contractor to remove from performance of the Contract any
Contractor Personnel whose acts or omissions have caused the
default; or
(b)
immediately terminate the Contract.
24
DocuSign Envelope ID: 35B47601-E1CA-49EF-B405-3E0F8023715E
18.7
Any notice served by the Authority under Clause 18.6 shall specify the nature
of the Prohibited Act, the identity of the party who the Authority believes has
committed the Prohibited Act and the action that the Authority has elected to
take (including, where relevant, the date on which the Contract shall terminate).
(ff)
Clauses 20.1 and 20.3 at Clause 20 HEALTH AND SAFETY shall be amended as
follows:
20.1 The Contractor shall take all measures necessary to comply with the
requirements of the Health and Safety at Work etc. Act 1974 and any other
Acts, orders, regulations and Codes of Practice relating to health and safety,
which may apply to the Contractor Personnel in the performance of the
Services.
20.3 Whilst on the Authority's Premises, the Contractor shall comply with any health
and safety measures implemented by the Authority in respect of the Contractor
Personnel working on those Premises, the Contractor having previously been
informed by the Authority of such health and safety measures and any
applicable health and safety rules and regulations.
(gg)
The sub-clause numbering in 21.2 at Clause 21. TRANSFER, SUB-CONTRACTING
AND CARRYING ON BUSINESS shall be amended to a), b) and c).
(hh)
Clause 21.3 at Clause 21. TRANSFER, SUB-CONTRACTING AND CARRYING ON
BUSINESS shall be deleted in its entirety and replaced with the following:
21.3
The Contractor shall ensure that all sub-contracts (which in this Clause includes
any contract in the Contractor’s supply chain made wholly or substantially for
the purpose of performing or contributing to the performance of the whole or
any part of the Contract) contain provisions:
(a)
giving the Contractor a right to terminate the sub-contract if the sub-
contractor fails to comply in the performance of the sub-contract with
legal obligations in the fields of environmental, social or labour law;
25
DocuSign Envelope ID: 35B47601-E1CA-49EF-B405-3E0F8023715E
(b)
requiring the Contractor or other party receiving goods or services
under the contract to consider and verify invoices under that contract
in a timely fashion;
(c)
that if the Contractor or other party fails to consider and verify an
invoice in accordance with Clause 21.3(b), the invoice shall be
regarded as valid and undisputed for the purpose of Clause 21.3(d)
after a reasonable time has passed;
(d)
requiring the Contractor or other party to pay any undisputed sums
which are due from it to the sub-contractor within a specified period
not exceeding thirty (30) days of verifying that the invoice is valid and
undisputed;
(e)
giving the Authority a right to publish the Contractor’s compliance with
its obligation to pay undisputed invoices within the specified payment
period; and
(f)
requiring the sub-contractor to include a clause to the same effect as
this Clause 21.3 in any contracts it enters into wholly or substantially
for the purpose of performing or contributing to the performance of the
whole or any part of the Contract.
(ii)
The sub-clause numbering in 21.4 at Clause 21. TRANSFER, SUB-CONTRACTING
AND CARRYING ON BUSINESS shall be amended to a), b) and c).
(jj)
Clause 21.5 at Clause 21. TRANSFER, SUB-CONTRACTING AND CARRYING ON
BUSINESS shall be amended as follows:
21.5 Subject to prior written consent of the Contractor (such consent not to be
unreasonably withheld or delayed), the Authority shall be entitled to assign,
novate or otherwise dispose of any or all of its rights or obligations under the
Contract to any contracting authority as defined in Regulation 2 (1) of the Public
Contracts Regulations 2015 or any other body established by the Crown or
under statute in order substantially to perform any of the functions that had
previously been performed by the Authority; or any private sector body which
26
DocuSign Envelope ID: 35B47601-E1CA-49EF-B405-3E0F8023715E
substantially performs the functions of the Authority. Provided that such
assignment, novation or other disposal shall not materially increase the burden
of the Contractor's obligations under the Contract.
(kk)
Clause 21.7 shall be added at Clause 21 TRANSFER, SUB-CONTRACTING AND
CARRYING ON BUSINESS:
21.7 The Contractor must use reasonable endeavours to comply with the provisions
of Section Twelve - Corporate Social Responsibility.
(ll)
Clause 22.2 at Clause 22 SERVICE OF NOTICES AND COMMUNICATIONS shall be
amended as follows:
22.2. Any notice or other communication which is to be given by a Party to another
Party shall be given by letter, or by facsimile transmission or electronic mail
confirmed by letter. Such letters shall be delivered by hand or sent prepaid by
first class post, addressed to the other Party as referred to in Section
Four - Administrative Instructions. If the other Party does not acknowledge
receipt of any such letter, facsimile transmission or item of electronic mail, and
the relevant letter is not returned as undelivered, the notice or communication
shall be deemed to have been given three (3) Working Days after the day on
which the letter was posted.
(mm) Sub-clause (b) of Clause 25.1 at Clause 25 TERMINATION ON CHANGE OF
CONTROL AND INSOLVENCY shall be amended as follows:
(b)
in the event of an Insolvency Event occurring in respect of the
Contractor.
(nn)
Sub-clause (c) of Clause 25.1 at Clause 25 TERMINATION ON CHANGE OF
CONTROL AND INSOLVENCY shall be deleted in its entirety.
(oo)
Clause 26.1 at Clause 26. TERMINATION ON DEFAULT shall be amended as follows:
27
DocuSign Envelope ID: 35B47601-E1CA-49EF-B405-3E0F8023715E
26.1
The Authority may terminate the Contract, or terminate the provision of any part
of the Services, by giving written notice to the Contractor with immediate effect
if the Contractor is in default of any material obligation under the Contract and:
(a)
the Contractor has not remedied the default to the satisfaction of the
Authority within thirty (30) days, or such other reasonable period as
may be specified by the Authority, after service of a written notice
specifying the default and requiring it to be remedied; or
(b)
the default is not capable of remedy; or
(c)
the default is a fundamental breach of the Contract.
(pp)
Clauses 28.6 to 28.8 at Clause 28 CONSEQUENCES OF TERMINATION shall be
amended as follows:
28.6
On expiry, or if the Authority terminates the contract under Clause 25, 26 or 27,
or reduces of any part of the Services in accordance with Clause 5 or upon the
conclusion of the services specified in each Work Programme, it is the intention
that in respect of any Relevant Employee the Transfer of Undertakings
(Protection of Employment) Regulations (“the Regulations”) shall apply in
respect of the provision thereafter of any service equivalent to any of the
Services but the position shall be determined in accordance with the law and/or
Government policy at the date of expiry or termination as the case may be and
this Clause 28 is without prejudice to such determination.
28.7
If the Regulations do not apply to any Relevant Employee on the expiry or
termination of the Contract or upon the conclusion of any services specified in
the Work Programmes or when the Authority reduces the Services in
accordance with Clause 5 the Authority shall indemnify the Contractor for any
payments to or in respect of any Relevant Employee which are statutory or
contractual redundancy payments or paid by reason of redundancy under the
Relevant Pension Scheme (including for the avoidance of doubt but without
limitation any additional contributions payable by the Contractor to the Secretary
of State under Regulation D2(3) of the National Health Service Pension Scheme
Regulations 1995 or Regulation 2.C.6 of the National Health
28
DocuSign Envelope ID: 35B47601-E1CA-49EF-B405-3E0F8023715E
Service Pensions Scheme Regulations 2008) ("the Contingent Liabilities")
subject to the following Clauses:
(a)
that this indemnity does not extend to any part of a redundancy
payment which is the consequence of an unusual or exceptional
increase in salary for a Relevant Employee or Relevant Employees
made within the 12 months preceding the expiry or termination date or
date of any reduction in the Services, or except where such variation
is made in accordance with a statutory requirement or is necessary to
give effect to any national agreements under which the Contractor is
obliged to make such variation, is the consequence of any variation in
the contractual redundancy terms applicable to any Relevant
Employee or Relevant Employees made by the Contractor without the
prior written consent of the Authority;
(b)
that the indemnity does not extend to any redundancy payment made
to a Relevant Employee in respect of whom suitable alternative
employment (as defined in accordance with his contract of
employment) was available to be offered (even if there were other
Relevant Employees for whom this employment would also be
suitable) unless that Relevant Employee had been given the
opportunity to apply for such suitable alternative employment;
(c)
that in the case of Relevant Employees who are assigned or allocated
to the provision of the Services at the date of the expiry or termination
of the Contract or of any Work Programme the indemnity shall not
extend to those Relevant Employees who have any time prior to that
date been assigned or allocated to work by the Contractor other than
in connection with a Work Programme comprised within the Services;
(d)
the total maximum amount payable under this indemnity and any other
indemnity to the Contractor expressed to be subject to this clause,
shall not, collectively, exceed £3 million (three million pounds) in
relation to Relevant Employees or SHA Employees engaged in the
provision of the Services provided that the Authority agrees to review
this figure if there are any unusual or unforeseen circumstances which
29
DocuSign Envelope ID: 35B47601-E1CA-49EF-B405-3E0F8023715E
increases the Contingent Liabilities beyond the overall level expected
when the maximum amount was agreed;1
(e)
the Contractor will take reasonable steps to notify the Authority of any
potential liabilities and will fully co-operate with the Authority and will
comply with any requests or directions given by the Authority;
(f)
the Contractor shall take all reasonable steps to offer suitable
alternative employment (as defined in accordance with his contract of
employment) to each Relevant Employee prior to the termination of his
or her employment by reason of redundancy and shall comply with
best employment practice as well as all contractual, statutory and
common law obligations relating to such termination of employment
(for the avoidance of doubt, the indemnity in this Clause 28.7 shall not
cover compensation for unfair dismissal and/or discrimination on any
ground); and
(g)
the Authority shall have the right to retain control or take over conduct
from the Contractor of any defence, dispute, compromise or appeal
arising out of or in respect of any potential liabilities, and determine
matters at its sole discretion, and the Authority agrees that it shall
indemnify the Contractor in respect of reasonable legal fees incurred
by the Contractor in complying with the Authority's decision to conduct
any defence, dispute, compromise or appeal arising out of or in respect
of any potential liabilities.
28.8
The provisions of Clause 28.7 also apply if the Regulations do apply on the
expiry or earlier termination of the Contract or of any Work Programme or on
any reduction of Services, but only in respect of Contingent Liabilities for any
Relevant Employee who has a claim in accordance with Regulation 4(9) or
4(11).
(qq)
Clause 28.10 at Clause 28. CONSEQUENCES OF TERMINATION shall be amended
as follows:
28.10 The Contractor undertakes that:
30
DocuSign Envelope ID: 35B47601-E1CA-49EF-B405-3E0F8023715E
(a)
upon the Contractor being served with notice to terminate the Contract
by the Authority pursuant to Clauses 25, 26 or 27 of the Contract; and
(b)
for the duration of the Contract thereafter
they shall not without the prior written consent of the Authority (such consent
not to be unreasonably withheld or delayed) do any of the matters set out in
this Clause 28.
(rr)
Clause 28.11 (a) at Clause 28. CONSEQUENCES OF TERMINATION shall be
amended as follows:
(a)
vary the rates of remuneration or hours to be worked by or the terms
and conditions of employment of any person engaged or employed to
provide the Services (save where such amendments arise in the
ordinary course of business as a result of annual pay settlements and
are made in good faith or where such amendments are made in
accordance with a statutory requirement or are necessary to give
effect to any national agreements under which the Contractor is
obliged to change the terms and conditions of such person); or
(ss)
Clause 30.4 at Clause 30. TRANSFER OF UNDERTAKINGS AND PROTECTION OF
EMPLOYMENT shall be amended as follows:
30.4 The Authority agrees that if it should at any time during the Contract Period
introduce any requirements upon the Contractor that the terms and conditions
of employment of the persons to whom Clause 30.2 applies or of any other
persons employed in or who may be offered employment in the provision of any
part of the Services shall be different from the terms and conditions of
employment which applied before the imposition of those requirements,
whether in accordance with Government policy on “the two-tier workforce” or
otherwise, then the Authority and the Contractor shall use their best
endeavours to agree the extra costs of complying with that requirement as a
Variation.
31
DocuSign Envelope ID: 35B47601-E1CA-49EF-B405-3E0F8023715E
(tt)
The sub-clause numbering in 30.8 at Clause 30. TRANSFER OF UNDERTAKINGS
AND PROTECTION OF EMPLOYMENT shall be amended to a) and b).
(uu)
The sub-clause numbering in 31.8 at Clause 31. DATA PROTECTION shall be
amended to a) and b).
(vv)
Clause 31.11 at Clause 31 DATA PROTECTION shall be amended as follows:
31.11 Having regard to the state of technological development and the costs of
implementing such measures, the Contractor shall have and maintain in place
throughout the term of this Contract appropriate technical and organisational
measures in order to:
(a)
prevent:
(i)
unauthorised or unlawful processing of Personal Data; and
(ii)
the accidental loss or destruction of, or damage to, the Personal
Data; and
(b)
ensure a level of security appropriate to:
(i)
the harm that might result from such unauthorised or unlawful
processing or accidental loss, destruction or damage; and
(ii)
the nature of the Personal Data to be protected.
Notwithstanding any audit rights within the Contract, the Authority retains the
right to request all information necessary from the Contractor to evidence its
compliance with the Data Protection Legislation and this Clause 31. The
Authority shall be permitted to conduct audits and/or appoint an independent
auditor with reasonable prior notice and minimal disruption to the Contractor’s
business.
(ww) The sub-clause numbering in 31.19 at Clause 31. DATA PROTECTION shall be
amended to a) - f).
(xx)
Clause 32.3 at Clause 32 FREEDOM OF INFORMATION shall be amended as follows:
32.3 the Authority shall be responsible for determining in its absolute discretion
whether Commercially Sensitive Information and/or any other information is
32
DocuSign Envelope ID: 35B47601-E1CA-49EF-B405-3E0F8023715E
exempt from disclosure in accordance with the provisions of the Code of
Practice on Government Information, FOIA or the Environmental Information
Regulations.
(yy)
Clause 35.3 at Clause 35 ARBITRATION shall be amended as follows:
35.3 Should the Parties be unable to agree on an arbitrator or arbitrators, or be
unable to agree on the Rules for Arbitration, any Party may, upon giving written
notice to the other Party, apply to the President or the Vice President, for the
time being, of the Chartered Institute of Arbitrators for the appointment of an
arbitrator or arbitrators and for any decision on the Rules for Arbitration that
may be necessary.
(zz)
Clause 36.1 at Clause 36 LIMITATION OF LIABILITY shall be amended as follows:
36.1
This Clause 36 sets out the entire liability of the Parties (including any liability
for the acts or omissions of its employees, agents, consultants and
subcontractors) in respect of:
(a)
any breach of the Contract;
(b)
any use made by the Authority of the Services, the Deliverables, or
any part of them; and
(c)
any representation, statement or tortious act or omission (including
negligence) arising under or in connection with the Contract.
(aaa) Clause 36.4 at Clause 36 LIMITATION OF LIABILITY shall be amended as follows:
36.4
Subject to Clause 36.2 and Clause 36.3:
(a)
the Parties shall not be liable for:
(i)
loss of profits; or
(ii)
loss of business; or
(iii)
depletion of goodwill and/or similar losses; or
33
DocuSign Envelope ID: 35B47601-E1CA-49EF-B405-3E0F8023715E
(iv)
loss of anticipated savings; or
(v)
loss of corruption of data or information; or
(vi)
any special, indirect, consequential or pure economic loss,
costs, damages, charges or expenses.
(b)
except as expressly stated in the Contract, each Party’s total liability
in contract, tort (including negligence or breach of statutory duty),
misrepresentation, restitution or otherwise arising in connection with
the performance, or contemplated performance, of the Contract shall
be limited to the Contract Price for the year in which the liability arose.
(bbb) Clause 38.1 at Clause 38 FORCE MAJEURE shall be amended as follows:
38.1
Subject to the remaining provisions of this Clause 38 (and, in relation to the
Contractor, subject to its compliance with its obligations in Section Eleven –
Service Continuity Plan), no Party shall have any liability under or be deemed
to be in breach of the Contract for any delays or failures in performance of the
Contract which result from circumstances beyond the reasonable control of that
Party and which is not attributable to any act or failure to take preventative
action by that Party, including fire; flood; violent storm; pestilence; explosion;
malicious damage; armed conflict; acts of terrorism; nuclear, biological or
chemical warfare; or any other disaster, natural or man-made, but excluding:
(a)
any industrial action occurring within the Contractor’s or any sub-
contractor’s organisation; or
(b)
the failure by any sub-contractor to perform its obligations under any
sub-contract.
(ccc) Section 1 – Not Used shall be renamed Section One – Scope of Work and the following
shall be added:
SECTION ONE
SCOPE OF WORK
1.
Services
34
DocuSign Envelope ID: 35B47601-E1CA-49EF-B405-3E0F8023715E
1.1
The Services to be provided under the Contract will be specified within Work
Programmes. These Work Programmes will be updated annually to form that year's
mutually agreed Services and will set out details of the required services, outcomes,
key performance indicators and additional programme resources available to ensure
delivery. During the life of an annual Work Programme it will be open to the Authority
and the Contractor to mutually agree a reprioritisation of the Services to be provided
to the Authority under that Work Programme. The Parties agree that, as a general
rule, any reprioritisation will mean that the services under the Work Programme will
be amended at no additional cost to the Authority. However, where the Authority
agrees that additional unforeseen costs will be incurred as a result of reprioritisation
of a Work Programme then additional funding will be discussed and agreed.
1.2
During the provision of the Services the Contractor shall liaise directly with the
Authority's commissioning leads. The Authority's commissioning leads will be specified
in respective Work Programmes and any constraints on liaison will be specified in the
respective Work Programmes.
1.3
The Authority's commissioning leads will be responsible for commissioning Services
and be the recipient of the Services. The name of the Authority's contract manager will
be notified by the Authority to the Contractor from time to time. However, day to day
contact with the Contractor on working arrangements and delivery of respective
services will be the responsibility of each Authority commissioning lead.
1.4
The Contractor shall achieve the following Contract Key Performance Indicators (KPIs)
in each Contract Year:
1.4.1 Delivery of a minimum of 98% of all Work Programme Deliverables within each
Contract Year; and
1.4.2 Production of a Financial Summary Report, including a breakdown of costs by
Work Programme, in a format agreed with the Authority and no later than thirty
(30) working days after the end of each quarter; and
1.4.3 Ensure where User Satisfaction Surveys issued include the following questions:
35
DocuSign Envelope ID: 35B47601-E1CA-49EF-B405-3E0F8023715E
1.4.3.1 The advice, guidance, tools and support provided by NHS Employers
have helped me/my organisation better understand the agenda and
the implications for our organisation;
1.4.3.2 The advice, guidance, tools and support provided by NHS Employers
have helped me/my organisation stay up to date with the latest
thinking, requirements and developments.
that 75% are returned with ‘Agree’ or ‘Strongly Agree’ selected as the response.
1.5
The Contractor shall deliver a report in a format agreed with the Authority, on a
quarterly basis and within eighteen (18) working days of the end of each quarter,
evidencing the progress against each of the Work Programme Deliverables and
against the Contract KPIs as outlined in clause 1.4. The Parties acknowledge that the
quarter 4 Financial Summary Report may be delayed due to year-end adjustments.
The Contractor shall provide this report as soon as practicable after the year end but
no later than thirty (30) working days after the year end.
2
Principal Service Areas
2.1
The principal service areas are as follows:
(i)Employment Relations;
(ii)Pensions and Reward;
(iii)Medical Workforce and Pay;
(iv)Workforce Supply;
(v) Staff Experience;
(vi) Professional Standards and Regulation (non-medical);
(vii)National Engagement Service;
(viii)Social Partnership Forum;
(ix)Communications; and
(x)Diversity and Inclusion (NHSE/I commissioned programme).
(ddd) Section 2 – Performance and Finance Accountability shall be renamed Section Two –
Performance, Financial Reports and Audit Rights and shall be amended as follows:
SECTION TWO
PERFORMANCE, FINANCIAL REPORTS AND AUDIT RIGHTS
36
DocuSign Envelope ID: 35B47601-E1CA-49EF-B405-3E0F8023715E
PART A: FINANCIAL TRANSPARENCY OBJECTIVES AND OPEN BOOK DATA
1.
FINANCIAL TRANSPARENCY OBJECTIVES
1.1
The Contractor acknowledges that the provisions of this Section are designed (inter
alia) to facilitate, and the Contractor shall co-operate with the Authority in order to
achieve, the following objectives:
(a)
Understanding the charges
(i)
for the Authority to understand any payment sought from it by the
Contractor including an analysis of the costs, overhead recoveries
(where relevant), time spent by Contractor Personnel in providing the
Services and the Contractor’s profit margin;
(ii)
for both Parties to be able to understand the cost forecasts and to have
confidence that these are based on justifiable numbers and
appropriate forecasting techniques;
(b)
Agreeing the impact of Variation
(i)
for both Parties to agree the quantitative impact of any Variations that
affect ongoing costs and to identify how these could be mitigated
and/or reflected in the Contractor’s charges;
(ii)
for both Parties to be able to review, address issues with and re-
forecast progress in relation to the provision of the Services;
(c)
Continuous improvement
(i)
for the Parties to challenge each other with ideas for efficiency and
improvements; and
(ii)
to enable the Authority to demonstrate that it is achieving value for
money for the tax-payer relative to current market prices,
37
DocuSign Envelope ID: 35B47601-E1CA-49EF-B405-3E0F8023715E
(together the “Financial Transparency Objectives”).
2.
OPEN BOOK DATA
2.1
The Contractor acknowledges the importance to the Authority of the Financial
Transparency Objectives and the Authority’s need for complete transparency in the
way in which the charges are calculated.
2.2
During the Contract Period, and for a period of seven (7) years following the end of the
Contract Period, the Contractor shall:
(a)
maintain and retain the Open Book Data; and
(b)
disclose and allow the Authority and/or the Audit Agents access to the Open
Book Data.
PART B: AUDIT RIGHTS
1.
AUDIT RIGHTS
1.1
The Authority, acting by itself or through its Audit Agents, shall have the right during
the Contract Period and for a period of eighteen (18) months thereafter, to assess
compliance by the Contractor of the Contractor’s obligations under the Contract,
including for the following purposes:
(a)
to verify the integrity and content of any financial report;
(b)
to verify the accuracy of the charges and any other amounts payable by the
Authority under the Contract (and proposed or actual variations to such charges
and payments);
(c)
to verify the costs (including the amounts paid to all sub-contractors and any
third-party suppliers);
(d)
to verify the Open Book Data;
38
DocuSign Envelope ID: 35B47601-E1CA-49EF-B405-3E0F8023715E
(e)
to verify the Contractor’s compliance with the Contract and applicable law;
(f)
to identify or investigate actual or suspected fraud, impropriety or accounting
mistakes or any breach or threatened breach of security and in these
circumstances the Authority shall have no obligation to inform the Contractor of
the purpose or objective of its investigations;
(g)
to identify or investigate any circumstances which may impact upon the
financial stability of the Contractor or its ability to perform the Services;
(h)
to obtain such information as is necessary to fulfil the Authority’s obligations to
supply information for parliamentary, ministerial, judicial or administrative
purposes including the supply of information to the Comptroller and Auditor
General;
(i)
to review any books of account and the internal contract management accounts
kept by the Contractor in connection with the Contract;
(j)
to carry out the Authority’s internal and statutory audits and to prepare, examine
and/or certify the Authority's annual and interim reports and accounts;
(k)
to enable the National Audit Office to carry out an 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;
(l)
to verify the accuracy and completeness of any management Information
delivered or required by the Contract;
(m)
to review any performance monitoring reports and/or other records relating to
the Contractor’s performance of the Services and to verify that these reflect the
Contractor’s own internal reports and records;
(n)
to inspect the IT Environment (or any part of it) and the wider service delivery
environment (or any part of it);
39
DocuSign Envelope ID: 35B47601-E1CA-49EF-B405-3E0F8023715E
(o)
to review the Contractor’s quality management systems (including all relevant
quality plans and any quality manuals and procedures).
1.2
Except where an audit is imposed on the Authority by a regulatory body or where the
Authority has reasonable grounds for believing that the Contractor has not complied
with its obligations under the Contract, the Authority may not conduct an audit of the
Contractor more than twice in any Contract Year.
1.3
Nothing in the Contract shall prevent or restrict the rights of the Comptroller and/or
Auditor General and/or their representatives from carrying out an audit, examination or
investigation of the Contractor for the purposes of and pursuant to applicable law.
2.
CONDUCT OF AUDITS
2.1
The Authority shall during each audit comply with those security, sites, systems and
facilities operating procedures of the Contractor that the Authority deems reasonable
and use its reasonable endeavours to ensure that the conduct of each audit does not
unreasonably disrupt the Contractor or delay the provision of the Services.
2.2
Subject to the Authority's obligations of confidentiality, the Contractor shall on demand
provide the Authority and the Audit Agents with all reasonable cooperation and
assistance (and shall procure such co-operation and assistance from its sub-
contractors) in relation to each audit, including:
(a)
all information requested by the Authority within the permitted scope of the
audit;
(b)
reasonable access to any sites and to any equipment used (whether exclusively
or non-exclusively) in the performance of the Services;
(c)
access to the Contractor System; and
(d)
access to Contractor Personnel.
2.3
The Contractor shall implement all measurement and monitoring tools and procedures
necessary to measure and report on the Contractor's performance of the Services
40
DocuSign Envelope ID: 35B47601-E1CA-49EF-B405-3E0F8023715E
against the applicable performance indicators at a level of detail sufficient to verify
compliance with any performance indicators.
2.4
The Authority shall endeavour to (but is not obliged to) provide at least fifteen (15)
Working Days’ notice of its intention to conduct an audit.
2.5
The Parties agree that they shall bear their own respective costs and expenses
incurred in respect of compliance with their obligations under this paragraph 2, unless
the audit identifies a material default by the Contractor in which case the Contractor
shall reimburse the Authority for all the Authority's reasonable costs incurred in
connection with the audit.
3.
USE OF CONTRACTOR’S INTERNAL AUDIT TEAM
3.1
As an alternative to the Authority’s right pursuant to paragraph 1.1 to exercise an audit
either itself or through its Audit Agents, the Authority may require in writing that an audit
is undertaken by the Contractor’s own internal audit function for any of the purposes
set out in paragraph 1.1.
3.2
Following the receipt of a request from the Authority under paragraph 3.1 above, the
Contractor shall procure that the relevant audit is undertaken as soon as reasonably
practicable and that the Authority has unfettered access to:
(a)
the resultant audit reports; and
(b)
all relevant members of the Contractor’s internal audit team for the purpose of
understanding such audit reports.
4.
RESPONSE TO AUDITS
4.1
If an audit undertaken pursuant to paragraphs 1 or 3 identifies that:
(a)
the Contractor has committed a default, the Authority may (without prejudice to
any rights and remedies the Authority may have) require the Contractor to
correct such default as soon as reasonably practicable;
41
DocuSign Envelope ID: 35B47601-E1CA-49EF-B405-3E0F8023715E
(b)
there is an error in a financial report, the Contractor shall promptly rectify the
error;
(c)
the Authority has overpaid any charges, the Contractor shall pay to the
Authority:
(i)
the amount overpaid;
(ii)
interest on the amount overpaid at the applicable rate under the Late
Payment of Commercial Debts (Interest) Act 1998, accruing on a daily
basis from the date of overpayment by the Authority up to the date of
repayment by the Contractor; and
(iii)
the reasonable costs incurred by the Authority in undertaking the audit,
the Authority may exercise its right to deduct such amount from the
charges if it prefers; and
(d)
the Authority has underpaid any charges, the Contractor shall not be entitled to
increase the charges paid or payable by the Authority.
PART C: PERFORMANCE
5.
CONTRACT MONITORING
5.1
The Authority shall liaise with the Contractor, monitor the provision of the Services and
ensure any specific projects are on time within budget and of appropriate quality
standards.
5.2
The Authority shall carry out planned checks as are necessary throughout the Contract
Period to ascertain that the Services are being provided to agreed standards.
5.3
The Authority shall have all appropriate access to all relevant information and
documents held by the Contractor in undertaking the Contract.
42
DocuSign Envelope ID: 35B47601-E1CA-49EF-B405-3E0F8023715E
5.4
The Contractor at the request of the Authority shall produce such documentary
evidence as is reasonably required and allow consultation with any employee of the
Contractor about particular service areas as is reasonably necessary.
5.5
The Contractor shall propose systems of self-monitoring and reporting on the delivery
of all Services, reflecting key performance indicators, and providing reports to the
Authority in an electronic format acceptable to the Authority.
6.
HAND-OVER PROCEDURE
6.1
The Contractor shall, for a period to be agreed between the Parties and which, in any
event, shall not exceed 26 weeks, subject to mutual agreement on the reasonable and
proportionate period for each of the business areas, preceding the Contract
termination or expiry date, additionally provide the services of his own experienced
staff to assist others in the process of familiarisation and convey to them all necessary
information to enable them to operate the plant, equipment and services in an efficient
manner.
6.2. At the end of the Contract, the Contractor shall provide the Authority with a signed
certificate stating that all works, including defects notified by the Authority, have been
completed. This certificate shall be submitted to the Authority with the final monthly
invoice for the Contract.
6.3
At the end of the Contract and within the time period above, the Contractor shall
provide the Authority with all information, data and any results arising from the
provision of the Services, whether or not on electronic media.
6.4
The Contractor shall, as part of the Hand-over Process, provide the Authority copies
of all electronic programmes used in provision of the Services, where it is reasonable
to do so. In the event that there is a logistical issue in providing the Authority with the
electronic programmes requested, the Parties will agree an alternative medium for the
transfer of this information.
6.5
The Contractor, in execution of its duties, shall ensure that all management and control
procedures are auditable and comply with a recognisable Quality Assurance Plan
agreed with the Authority prior to their implementation.
43
DocuSign Envelope ID: 35B47601-E1CA-49EF-B405-3E0F8023715E
7.
PERFORMANCE MONITORING
7.1
The Authority will provide the Contractor with an annual programme of work under the
main content heads for discussion and mutual agreement. The Authority and the
Contractor will agree key performance indicators and targets for the Contractor. These
agreed targets shall be monitored and measured by the Contractor. Performance
monitoring reports (which shall include a report on the solvency of the Contractor and
a financial update on the expenditure from the overall yearly budget against the Work
Programme for each Principal Service area set out in Section One – Scope of Work)
will be produced by the Contractor and provided to the Authority for discussion at in-
year quarterly performance review meetings. At these meetings the Authority will
discuss any issues which have not been raised and dealt with at informal bilateral
meetings between subject specific Authority commissioning leads and NHS provider
leads. There will be an expectation that these meetings deal with progress on the
agreed programme of work, quality and timescale. Reports to the formal quarterly
review meetings will be by exception where they have been unable to mutually sort out
any problems. The frequency of the informal bilaterals will be set by the relevant policy
commissioner and provider leads at the beginning of the financial year. The frequency
of the quarterly review meetings will be regularly reviewed and if required changed by
mutual consent or, in the absence of consent, as the Authority shall determine. The
Authority shall be entitled to nominate a person or persons to represent him at such
meetings or to be present at such meetings for the purposes of participating in or
observing the review.
8.
STANDARDS
8.1
The Contractor when providing the Services will comply with all relevant European
Standards and where not covered by European Standards the relevant equivalent.
(eee) Section 3 – Scope of Work shall be renamed Section Three – Not Used.
(fff)
Section 4 – Administrative Instructions shall be renamed Section Four – Administrative
Instructions and amended as follows:
SECTION FOUR
44
DocuSign Envelope ID: 35B47601-E1CA-49EF-B405-3E0F8023715E
ADMINISTRATIVE INSTRUCTIONS
1.
AUTHORISATION
1.1
The following person is authorised to act as the Authority's Representative on all
matters relating to the Contract:
Sarah Parker, Deputy Director, Commercial Capability and Supplier Management
1.2
The Authority's Representative may authorise in writing other officers to act on his/her
1.3
The following person is authorised to act as the Contractor's Representative on all
matters relating to the Contract:
CEO of NHS Employers
1.4
The Contractor's Representative may authorise in writing other officers to act on his/her
behalf.
2.
ADDRESS FOR PAYMENT
2.1
All invoices shall be sent to the Authority addressed to:
Pay, Pensions and Employment Services Team
Department of Health and Social Care
Quarry House
Quarry Hill
Leeds
LS2 7UE
2.2
All invoices to the Contractor shall be sent addressed to:
NHSE Finance Team
NHS Employers
2 Brewery Wharf
45
(hhh) Section 6 – List of Contractor’s Staff Referred to in Clause 11.2 shall be renamed
Section Six – Expert Staff and amended as follows:
SECTION SIX
EXPERT STAFF
The following is the agreed list of Expert Staff roles as referred to in clause 11.2
Danny Mortimer, Chief Executive Officer
, Business Planning Manager
Employment Relations and Reward
Paul Wallace, Director of ERR
Andrea Hester, Deputy Director of ERR
TBC, Assistant Director of Employment Relations
Gordon Benson, Assistant Director of medical pay and workforce
, Head of Pensions
TBC, Programme Manager Job Evaluation
, Head of Employment relations
, Head of Medical Pay and Workforce
, Head of Medical Pay and Contracts
, Head of Analytics
Analytics Programme Manager x2
TBC, Head of Reward
Development and Employment
Caroline Waterfield, Director of Development and Employment
Michelle Wayt, Assistant Director - Workforce supply and assurance
Jennifer Gardner, Assistant Director Staff experience
Paul Taylor-Pitt, Assistant Director - Organisational Development
, Programme lead – Recruitment and Employment Checks
, Programme lead – Workforce Supply (international recruitment and Code)
, Programme lead – Health and Wellbeing (inc staff council subgroup, health
and safety at work partnership group)
National Engagement Service
Rebecca Smith, Director of Engagement
Liz Gambrell, Deputy Director Engagement (South)
Gayna Deakin, Assistant Director Engagement (London)
Catherine Wills, Assistant Director Engagement (Midlands
&East) Kathryn Grayling, Assistant Director Engagement
(North)
Equality and Diversity
, Head of Diversity and Inclusion
Communications
Sarah Hirst, Assistant Director of
Communications
, Head of
Communications
(i)
Section 7 – Relevant Employees shall be renamed Section Seven – Relevant
Employees and amended as follows:
SECTION SEVEN
RELEVANT
EMPLOYEES
(jjj)
Section 8 – Price Adjustment Illustration shall be renamed Section Eight – Price
Adjustment Illustration
(kkk) The following provision shall be added to the beginning of Section Eight – Price
Adjustment Illustration:
This Section Eight relates to Contract Years 1-11 only.
(lll)
Section 9 – Governance Plan shall be renamed Section Nine - Governance and
shall be amended as follows:
DocuSign Envelope ID: 35B47601-E1CA-49EF-B405-3E0F8023715E
YEAR 12.
53
DocuSign Envelope ID: 35B47601-E1CA-49EF-B405-3E0F8023715E
NHS Employers: Governance plan to address the findings in the PKF report into the
development of the NHS Employers member model
LEADERSHIP
Action
Target
Evidence
Director
Completion
Lead
Date
L1
Appoint a balanced board of
Within 2
1. Companies
NSHC
executive and nonexecutive
weeks of
House register
Director of
directors ensuring that the non-
the contract
2. Examination of
Resources
executives have appropriate
being
non-executives’
governance and financial
signed
CVs will show
management skills.
relevant
Review after 6 months and either
experience
recruit new non execs or provide
3. Documentation
additional training as appropriate
of review of skills
after
6 months
L2
Board will meet with sufficient
On-going
1. Schedule of
NSHC
regularity to discharge its duties
meetings will
Director of
show regularity
Resources
2. Minutes will
show content of
meetings
L3
All new NHS Employers’
Within 2
1. Copy of briefing – NSHC
directors to receive information
weeks of
directors to
Director of
about their responsibilities as
appointment sign to confirm
Resources
directors
and
receipt
then
updated as
appropriate
L4
Review NHS Employers’
30 August
1. Copies of
NSHC
directors’ contracts (existing and
2010
signed contracts
Director of
new) to include clauses
supported by new
Resources
addressing conflicts of interest,
conflict of
fiduciary duties, & restrictive
interest policy
covenants
L5
Develop a scheme of delegation
30 July
1. Scheme of
NSHC
and organogram showing levels
2010
Delegation (to be
Director of
of authority and lines of reporting
also sent
Resources
regarding risk, project, and
separately to DH)
financial management
2. Organogram
54
DocuSign Envelope ID: 35B47601-E1CA-49EF-B405-3E0F8023715E
L6
NHS Employers board to satisfy
On-going
1. Copies of Board
NSHC
themselves of the solvency,
minutes
Director of
financial strength and good
Resources
performance of the organisation
L7
NHS Employers’ directors and
30 June
1. Copy of standard
Director
Business Team members to
2011
objective
NHSE
include leading the management
2. List of staff who
of risk in their objectives
have to meet
objective
L8
NHS Employers annual report /
30 July
1. Annual report and
NSHC
accounts to include information
2010
accounts
Director of
about how performance
Resources
evaluation of the board and
directors has been carried out
L9
NHS Employers board to ensure
As required
1. Annual accounts
NSHC
that company complies with
filed within 10
Director of
Company legislation
months of the end of
Resources
the financial year
2. Director
appointments and
terminations notified
to Companies House
within 2 weeks
L10 NHS Employers’ draft board
On-going
1. Website
NSHC
minutes to be made available on
Director of
the NHS Employers’ website
Resources
within 5 working days of the
meeting
55
DocuSign Envelope ID: 35B47601-E1CA-49EF-B405-3E0F8023715E
PROJECT MANAGEMENT
Action
Target
Evidence
Director
Completion
Lead
Date
P1
All NHS Employers projects to
30 July 2010
1. Project
Director
be managed in accordance with
and on-going
Management policy
NHSE
the NHS Confederation’s project
(to be sent
management policy and entered
separately to DH)
onto projects register which will
2. Projects register
be examined by the NHS
3. NHS Employers
Employers board no less than 4
board minutes
x per year
P2
All NHS Employers’ projects to
12 July 2010
1. Projects register
Director
complete appropriate project
and on-going
will identify projects
NHSE
documentation which will show:
2. Project
• governance for the project
documentation for
cross-referenced to the scheme
each project will
of delegation to include lines of
confirm compliance
responsibility
• composition of project team
and roles and responsibilities
• budget and source of funding
• cross-reference to the
specification in the Contract or
CV
P3
All projects with a total spend of
12 July and
1. Projects register
NSHC
more than £15k to be signed off
on-going
will identify projects
Director of
by a Director and all projects
with a value of
Resources
with a total spend of more than
>£15k and >£100k
£100k to be signed off by NHS
2. Project
Employers board
documentation will
verify director sign-
off
3. Project
documentation and
NHS Employers
board minutes will
confirm board
signing off
P4
New T&Cs and model of
30 July and
1. Copies of signed
NSHC
appointment to be used for
on-going
T&Cs of all
Director of
any consultants working on
consultants working
Resources
projects to include restrictions to
on projects for NHS
cover confidentiality, use of IP,
Employers cross-
conflict of interest, etc
referenced against
56
DocuSign Envelope ID: 35B47601-E1CA-49EF-B405-3E0F8023715E
project
documentation
P5
Project proposals outside of DH
21 June and
1. Minutes of board
NSHC
contract agreed by NHS
on-going
meetings
Director of
Employers board with clear
2. Projects register
Resources
evidence of source of
investment/budget/project team
P6
Any NHS Employers projects
Immediately
1. Examination of
NSHC
undertaken within the scope of
and on-going
projects register to
Director of
the Contract that span more
identify appropriate
Resources
than 2 years or cost over £1m
projects
should have approval of DH
2. Copies of
before the project starts
correspondence
between Employers
and DH re any
projects
P7
NHS Employers to comply with
Immediately
1. Examination of
NSHC
project management policy and
and on-going
projects register
Director of
ensure that any significant
to identify significant
Resources
projects should be subject to
projects
scrutiny independent from the
cross referenced
project team and reported to the
against NHS E
NHS Confederation Corporate
budget
Board
2. Project
documentation to
note independent
scrutiny
3. Minutes from
Corporate Board
meetings
RISK MANAGEMENT
Action
Target
Evidence
Director
Completion
Lead
Date
R1
Communicate via induction
30 July and
1. CE’s note to staff
NSHC
and staff briefings that risk
on-going
2. Intranet article/s
Director of
management is a positive
3. Induction materials
Resources
tool to ensure success
R2
Remind staff and Trustees
30 July and
1. CE’s note to staff
NSHC
about the content of the
on-going
and Trustees
Director of
whistle blowing policy
2. Intranet article/s
Resources
3. Induction materials
57
DocuSign Envelope ID: 35B47601-E1CA-49EF-B405-3E0F8023715E
R3
NHS Employers to follow
5 July and on-
1. NHS Confederation
Director
policy and process for risk
going
Risk Policy
NHSE
identification and
to be sent separately
management introduced
to DH
across the Confederation
2. NHS Employers
(includes reference to whistle
Risk Register
blowing).
3. Minutes of NHS
Employers board
meetings
R4
NHS Employers risk register
29 June and
1. NHS Employers
Director
to be submitted FOR
on-going
risk register
NHSE
REVIEW to each NHS
2. Board meeting
Employers’ board meeting
minutes
R5
NHS Employers risks to be
29 July and
1. NHS Confederation
NSHC
aggregated with NHS
on-going
risk register
Director of
Confederation risks and
2. Corp Board
Resources
considered by Corporate
meeting minutes
Board
R6
NHS Employers Board to
29 June and
1. NHS Employers
NSHC
monitor mitigating action
on-going
Board minutes
Director of
Resources
R7
Induction process for NHS
31 July 2010
1. Records of who
Director
Employers’ staff to include
and on-going
has undergone
NHSE
information on how NHS
induction
Employers/NHS
2. Information
Confederation manages risk
supplied as part of
the induction process
R8
Implement training for NHS
31 July 2010
1. Date of training
NSHC
Employers business team on
2. Training materials
Director of
how to manage risk (for
used
Resources
cascading to staff)
3. Feedback from
participants
FINANCIAL MANAGEMENT
Action
Target
Evidence
Director
Completion
Lead
Date
F1
Management accounts to
On-going
1. Management
NSHC
provide sufficient detail so
accounts referenced
Director of
that NHS Employers board
with projects register
Resources
can understand spend on
projects
58
DocuSign Envelope ID: 35B47601-E1CA-49EF-B405-3E0F8023715E
F2
NHS Employers to provide a
On-going
1. List and business
NSHC
list of all investments
plan
Director of
alongside business plan
Resources
F3
Document clear guidelines
5 July 2010
1. Guidelines about
NSHC
about the use of DH
the use of DH
Director of
funds which, for projects or
funds (sent
Resources
work outside of the
separately to DH)
contract, explain the ability to
use DH funding versus
the Confederation’s own
funds/reserves
PART II – GOVERNANCE FOR CONTRACT YEAR 12 ONWARDS.
1.
INTRODUCTION
This Section describes the governance structure and the procedures that will be used
to manage the relationship between the Authority and the Contractor under the
Contract.
2.
GOVERNANCE PRINCIPLES
2.1
The Parties shall work together to ensure that:
2.1.1 the Services are provided professionally, and in accordance with the Contract;
2.1.2 the provision of the Services is regularly monitored to ensure compliance with
the service levels and any applicable performance indicators, and that
appropriate timely action is taken to deal with any problems or issues;
2.1.3 the Services are carried out in accordance with the Authority’s regulatory,
compliance, audit and risk management requirements to the extent provided
for in the Contract;
2.1.4 the Contractor undertakes its responsibilities in a timely and professional
manner;
2.1.5 changes are recorded and the Contract is kept up to date and modified as
appropriate and by way of the contract variation procedure set at Clause 8 to
comply with the changing requirements of the Authority;
2.1.6 the contract variation procedure set at Clause 8 is implemented correctly and
monitored by both Parties;
59
DocuSign Envelope ID: 35B47601-E1CA-49EF-B405-3E0F8023715E
2.1.7 potential problems and issues are identified early and resolved promptly in a
co-operative manner;
2.1.8 any disputes are resolved quickly, effectively and in a co-operative and
business-like manner;
2.1.9 the Services are carried out in accordance with the standards and the
Authority’s policies and procedures as required by the Contract;
2.1.10 exit management is planned and implemented effectively, giving due
consideration to the terms within clause 29 which apply on expiration or
termination of the Contract; and
2.1.11 a forum for co-operative and pro-active management of the Contract is
established so that the objectives set out in the Contract are consistently
achieved.
3.
ESTABLISHMENT OF THE GOVERNANCE BOARD
3.1
The Contract will be managed at the day to day level through the Contractor’s
Representative and the Authority’s Representative.
3.2
A Governance Board shall be established under the Contract on which both the
Contractor and the Authority shall be represented by such senior representatives as
agreed between the Parties.
3.3
In relation to the Governance Board, the:
3.3.1 Authority Board Members;
3.3.2 Contractor Board Members;
3.3.3 frequency that the Governance Board shall meet (unless otherwise agreed
between the Parties);
3.3.4 location of the Governance Board's meetings; and
3.3.5 planned start date by which the Governance Board shall be established,
shall be as set out in Part A.
3.4
In the event that either Party wishes to replace any of its appointed Governance Board
Members, that Party shall notify the other in writing of the proposed change for
agreement by the other Party (such agreement not to be unreasonably withheld or
delayed). Notwithstanding the foregoing it is intended that each Authority Board
60
DocuSign Envelope ID: 35B47601-E1CA-49EF-B405-3E0F8023715E
Member has at all times a counterpart Contractor Board Member of equivalent seniority
and expertise.
3.5
The Governance Board will:
3.5.1 be responsible for the executive management of the Contract;
3.5.2 provide senior level guidance, leadership and strategy in respect of the
provision of the Services;
3.5.3 be the point of escalation from the Authority and Contractor’s Representatives
(where appropriate); and
3.5.4 carry out the specific obligations attributed to it in the Contract.
3.6
Both Parties will ensure that appropriate resource is made available on a regular basis
such that the aims, objectives and specific provisions of the Contract can be fully
realised.
4.
GOVERNANCE BOARD MEETINGS
4.1
Meetings of the Governance Board will take place at least bi-annually to provide
guidance and direction, reduce operational risks, review financial and service
performance (including, for the avoidance of doubt, performance by the Contractor in
accordance with its obligations under the Contract), manage any changes and resolve
issues and disputes ("Purposes") and the Governance Board will also meet as
necessary to ensure performance of such Purposes.
4.2
Each Party shall ensure that its representative shall make all reasonable efforts to
attend meetings of the Governance Board. If any representative is not able to attend a
Governance Board meeting, that person shall use all reasonable endeavours to ensure
that:
4.2.1 a delegate attends the relevant Governance Board meeting in his/her place
who is (wherever possible) is properly briefed and prepared; and
4.2.2 that he/she is debriefed by such delegate after the Governance Board meeting.
4.3
Meetings of the Governance Board shall be quorate as long as at least one
representative from each Party is present, including for the avoidance of doubt any
replacements for the representatives appointed in accordance with paragraph 4.2.
4.4
The Parties shall ensure, as far as reasonably practicable, that the Governance Board
shall as soon as reasonably practicable resolve the issues and achieve the objectives
placed before them. Each Party shall ensure that members of any boards created are
60
DocuSign Envelope ID: 35B47601-E1CA-49EF-B405-3E0F8023715E
empowered to make the relevant decisions or have access to empowered individuals
for decisions to be made to achieve this.
5.
CONTRACT MANAGEMENT MECHANISMS
5.1
The Parties will maintain a joint business plan to log continuous improvement and all
key issues relevant to the Contract, including summaries of any benchmark reviews
and changes to the Contract, in sufficient detail to allow the Parties to make
presentations regarding the Contract, the Services and progress of the same, at the
Governance Board meetings and the Review (as defined below).
5.2
Both Parties will pro-actively manage risks attributed to them under the terms of the
Contract.
5.3
The Contractor will develop, operate, maintain and amend, as agreed with the
Authority, processes for the identification and management of risks, and a risk register
will be completed by the Contractor and submitted for review by both Parties at the
Governance Board meetings.
6.
BI-ANNUAL REVIEWS
6.1
Bi-annual review meetings (each a "Review") shall be held, on a date to be agreed
between the Parties, throughout the Contract Period.
6.2
Each Review will be attended by the Authority’s Representative and the Contractor’s
Representative and any other persons considered by the Authority necessary for the
review. The Contractor may ask the Authority for permission to bring other relevant
parties to the Review. The Authority shall consider each request acting reasonably and
in good faith.
6.3
During each Review meeting the Contract will be reviewed to ensure the terms and
conditions are up to date and the Contract accurately reflects current practice. Any
amendments required will be processed through the process set at Clause 8.
61
DocuSign Envelope ID: 35B47601-E1CA-49EF-B405-3E0F8023715E
(b)
the recovery of the Services in the event of a Disaster.
1.2
The Service Continuity Plan shall:
(a)
be divided into four parts:
(i)
Part A which shall set out general principles applicable to the Service
Continuity Plan;
(ii)
Part B which shall relate to business continuity (the “Business
Continuity Plan”);
(iii)
Part C which shall relate to disaster recovery (the “Disaster Recovery
Plan”);
(iv)
Part D which shall relate to an Insolvency Event of the Contractor
and/or any subsidiary company of the NHS Confederation (the
“Insolvency Continuity Plan”); and
(b)
unless otherwise required by the Authority in writing, be based upon and be
consistent with the provisions of paragraphs 2, 3, 4 and 5.
1.3
Following receipt of the draft Service Continuity Plan from the Contractor, the Authority
shall:
(a)
review and comment on the draft Service Continuity Plan as soon as
reasonably practicable; and
(b)
notify the Contractor in writing that it approves or rejects the draft Service
Continuity Plan no later than twenty (20) Working Days after the date on which
the draft Service Continuity Plan is first delivered to the Authority.
1.4
If the Authority rejects the draft Service Continuity Plan:
(a)
the Authority shall inform the Contractor in writing of its reasons for its rejection; and
65
DocuSign Envelope ID: 35B47601-E1CA-49EF-B405-3E0F8023715E
(b)
the Contractor shall then revise the draft Service Continuity Plan (taking
reasonable account of the Authority's comments) and shall re-submit a revised
draft Service Continuity Plan to the Authority for the Authority's approval within
twenty (20) Working Days of the date of the Authority's notice of rejection. The
provisions of paragraph 1.3 and this paragraph 1.3 shall apply again to any
resubmitted draft Service Continuity Plan, provided that either Party may refer
any disputed matters for resolution by the dispute resolution procedure set out
at Clause 34 at any time.
2
SERVICE CONTINUITY PLAN: PART A – GENERAL PRINCIPLES AND
REQUIREMENTS
2.1
Part A of the Service Continuity Plan shall:
(a)
set out how the business continuity, disaster recovery and insolvency continuity
elements of the plan link to each other;
(b)
provide details of how the invocation of any element of the Service Continuity
Plan may impact upon the operation of the Services and any services provided
to the Authority by a Related Service Provider;
(c)
contain an obligation upon the Contractor to liaise with the Authority and (at the
Authority's request) any Related Service Provider with respect to issues
concerning business continuity, disaster recovery and insolvency continuity
where applicable;
(d)
detail how the Service Continuity Plan links and interoperates with any
overarching and/or connected disaster recovery, business continuity and/or
insolvency continuity plan of the Authority and any of its other Related Service
Providers in each case as notified to the Contractor by the Authority from time
to time;
(e)
contain a communication strategy including details of an incident and problem
management service and advice and help desk facility which can be accessed
via multi-channels (including but without limitation a web-site (with FAQs), e-
66
DocuSign Envelope ID: 35B47601-E1CA-49EF-B405-3E0F8023715E
mail, phone and fax) for both portable and desk top configurations, where
required by the Authority;
(f)
contain a risk analysis, including:
(i)
failure or disruption scenarios and assessments and estimates of
frequency of occurrence;
(ii)
identification of any single points of failure within the Services and
processes for managing the risks arising therefrom;
(iii)
identification of risks arising from the interaction of the Services with
the services provided by a Related Service Provider;
(iv)
identification of risks arising from an Insolvency Event of the
Contractor, and/or subsidiary company of the NHS Confederation; and
(v)
a business impact analysis (detailing the impact on business
processes and operations) of different anticipated failures or
disruptions;
(g)
provide for documentation of processes, including business processes, and
procedures;
(h)
set out key contact details (including roles and responsibilities) for the
Contractor (and any sub-contractors) and for the Authority;
(i)
identify the procedures for reverting to “normal service”;
(j)
set out method(s) of recovering or updating data collected (or which ought to
have been collected) during a failure or disruption to ensure that there is no
more than the accepted amount of data loss and to preserve data integrity;
(k)
identify the responsibilities (if any) that the Authority has agreed it will assume
in the event of the invocation of the Service Continuity Plan; and
67
DocuSign Envelope ID: 35B47601-E1CA-49EF-B405-3E0F8023715E
(l)
provide for the provision of technical advice and assistance to key contacts at
the Authority as notified by the Authority from time to time to inform decisions
in support of the Authority’s business continuity plans.
2.2
The Service Continuity Plan shall be designed so as to ensure that:
(a)
the Services are provided in accordance with the Contract at all times during
and after the invocation of the Service Continuity Plan;
(b)
the adverse impact of any Disaster; service failure; an Insolvency Event of the
Contractor and/or any subsidiary company of the NHS Confederation; or
disruption on the operations of the Authority, is minimal as far as reasonably
possible;
(c)
it complies with the relevant provisions of ISO/IEC 22301 and all other industry
standards from time to time in force; and
(d)
there is a process for the management of disaster recovery testing detailed in
the Service Continuity Plan.
2.3
The Service Continuity Plan shall be upgradeable and sufficiently flexible to support
any changes to the Services, to the business processes facilitated by and the business
operations supported by the Services, and/or changes to the NHS Confederation
structure.
2.4
The Contractor shall not be entitled to any relief from its obligations under any
performance indicators or to any increase in the Charges to the extent that a Disaster
occurs as a consequence of any breach by the Contractor of the Contract.
3
SERVICE CONTINUITY PLAN: PART B – BUSINESS CONTINUITY
PRINCIPLES AND CONTENTS
3.1
The Business Continuity Plan shall set out the arrangements that are to be invoked to
ensure that the business processes and operations facilitated by the Services remain
supported and to ensure continuity of the business operations supported by the
Services including, unless the Authority expressly states otherwise in writing:
68
DocuSign Envelope ID: 35B47601-E1CA-49EF-B405-3E0F8023715E
(a)
the alternative processes (including business processes), options and
responsibilities that may be adopted in the event of a failure in or disruption to
the Services; and
(b)
the steps to be taken by the Contractor upon resumption of the Services in
order to address any prevailing effect of the failure or disruption including a root
cause analysis of the failure or disruption.
3.2
The Business Continuity Plan shall:
(a)
address the various possible levels of failures of or disruptions to the Services;
(b)
set out the services to be provided and the steps to be taken to remedy the
different levels of failures of and disruption to the Services (such services and
steps, the “Business Continuity Services”);
(c)
specify any applicable performance indicators with respect to the provision of
the Business Continuity Services and details of any agreed relaxation to any
performance indicators in respect of other Services during any period of
invocation of the Business Continuity Plan; and
(d)
clearly set out the conditions and/or circumstances under which the Business
Continuity Plan is invoked.
4
SERVICE CONTINUITY PLAN: PART C – DISASTER RECOVERY
PRINCIPLES AND CONTENTS
4.1
The Disaster Recovery Plan shall be designed so as to ensure that upon the
occurrence of a Disaster the Contractor ensures continuity of the business operations
of the Authority supported by the Services following any Disaster or during any period
of service failure or disruption with, as far as reasonably possible, minimal adverse
impact.
4.2
The Disaster Recovery Plan shall be invoked only upon the occurrence of a Disaster.
69
DocuSign Envelope ID: 35B47601-E1CA-49EF-B405-3E0F8023715E
4.3
The Disaster Recovery Plan shall include the following:
(a)
the technical design and build specification of the Disaster Recovery System;
(b)
details of the procedures and processes to be put in place by the Contractor in
relation to the Disaster Recovery System and the provision of the Disaster
Recovery Services and any testing of the same including but not limited to the
following:
(i)
data centre and disaster recovery site audits;
(ii)
backup methodology and details of the Contractor's approach to data
back-up and data verification;
(iii)
identification of all potential disaster scenarios;
(iv)
risk analysis;
(v)
documentation of processes and procedures;
(vi)
hardware configuration details;
(vii)
network planning including details of all relevant data networks and
communication links;
(viii)
invocation rules;
(ix)
Service recovery procedures; and
(x)
steps to be taken upon resumption of the Services to address any
prevailing effect of the failure or disruption of the Services;
(c)
any applicable performance indicators with respect to the provision of the
Disaster Recovery Services and details of any agreed relaxation to any
performance indicators in respect of other Services during any period of
invocation of the Disaster Recovery Plan;
70
DocuSign Envelope ID: 35B47601-E1CA-49EF-B405-3E0F8023715E
(d)
details of how the Contractor shall ensure compliance with security standards
ensuring that compliance is maintained for any period during which the Disaster
Recovery Plan is invoked;
(e)
access controls to any disaster recovery sites used by the Contractor in relation
to its obligations pursuant to this Section; and
(f)
testing and management arrangements.
5
SERVICE CONTINUITY PLAN: PART D – INSOLVENCY CONTINUITY PLAN
PRINCIPLES AND CONTENTS
5.1
The Insolvency Continuity Plan shall be designed by the Contractor to permit continuity
of the business operations of the Authority supported by the Services through
continued provision of the Services following an Insolvency Event of the Contractor
and/or any subsidiary company of the NHS Confederation with, as far as reasonably
possible, minimal adverse impact.
5.2
The Insolvency Continuity Plan shall include the following:
(a)
communication strategies which are designed to minimise the potential
disruption to the provision of the Services, including key contact details in
respect of the supply chain and key contact details for operational and contract
Contractor Personnel and personnel of any subsidiary company of the NHS
Confederation;
(b)
identification, explanation, assessment and an impact analysis of risks in
respect of dependencies between the Contractor and subsidiary company of
the NHS Confederation where failure of those dependencies could reasonably
have an adverse impact on the Services;
(c)
plans to manage and mitigate identified risks;
71
DocuSign Envelope ID: 35B47601-E1CA-49EF-B405-3E0F8023715E
(d)
details of the roles and responsibilities of the Contractor and/or subsidiary
company of the NHS Confederation to minimise and mitigate the effects of an
Insolvency Event of such persons on the Services;
(e)
details of the recovery team to be put in place by the Contractor (which may
include representatives of the Contractor and subsidiary companies of the NHS
Confederation); and
(f)
sufficient detail to enable an appointed insolvency practitioner to invoke the
plan in the event of an Insolvency Event of the Contractor.
6
REVIEW AND AMENDMENT OF THE SERVICE CONTINUITY PLAN
6.1
The Contractor shall review and update the Service Continuity Plan (and the risk
analysis on which it is based):
(a)
on a regular basis and as a minimum once every six (6) months;
(b)
within three (3) calendar months of the Service Continuity Plan (or any part)
having been invoked pursuant to paragraph 8;
(c)
where the Authority requests any additional reviews (over and above those
provided for in paragraphs 6.1(a) and 6.1(b)) by notifying the Contractor to such
effect in writing, whereupon the Contractor shall conduct such reviews in
accordance with the Authority's written requirements. Prior to starting its review,
the Contractor shall provide an accurate written estimate of the total costs
payable by the Authority for the Authority’s approval. The costs of both Parties
of any such additional reviews shall be met by the Authority except that the
Contractor shall not be entitled to charge the Authority for any costs that it may
incur above any estimate without the Authority’s prior written approval.
6.2
Each review of the Service Continuity Plan pursuant to paragraph 6.1 shall be a review
of the procedures and methodologies set out in the Service Continuity Plan and shall
assess their suitability having regard to any change to the Services or any underlying
business processes and operations facilitated by or supported by the Services which
have taken place since the later of the original approval of the Service Continuity Plan
72
DocuSign Envelope ID: 35B47601-E1CA-49EF-B405-3E0F8023715E
or the last review of the Service Continuity Plan and shall also have regard to any
occurrence of any event since that date (or the likelihood of any such event taking
place in the foreseeable future) which may increase the likelihood of the need to invoke
the Service Continuity Plan. The review shall be completed by the Contractor within
the period required by the Service Continuity Plan or, if no such period is required,
within such period as the Authority shall reasonably require. The Contractor shall,
within twenty (20) Working Days of the conclusion of each such review of the Service
Continuity Plan, provide to the Authority a report (a “Review Report”) setting out:
(a)
the findings of the review;
(b)
any changes in the risk profile associated with the Services; and
(c)
the Contractor's proposals (the “Contractor's Proposals”) for addressing any
changes in the risk profile and its proposals for amendments to the Service
Continuity Plan following the review detailing the impact (if any and to the extent
that the Contractor can reasonably be expected to be aware of the same) that
the implementation of such proposals may have on any services or systems
provided by a third party.
6.3
Following receipt of the Review Report and the Contractor’s Proposals, the Authority
shall:
(a)
review and comment on the Review Report and the Contractor’s Proposals as
soon as reasonably practicable; and
(b)
notify the Contractor in writing that it approves or rejects the Review Report and
the Contractor’s Proposals no later than twenty (20) Working Days after the
date on which they are first delivered to the Authority.
6.4
If the Authority rejects the Review Report and/or the Contractor’s Proposals:
(a)
the Authority shall inform the Contractor in writing of its reasons for its rejection;
and
73
DocuSign Envelope ID: 35B47601-E1CA-49EF-B405-3E0F8023715E
(b)
the Contractor shall then revise the Review Report and/or the Contractor’s
Proposals as the case may be (taking reasonable account of the Authority's
comments and carrying out any necessary actions in connection with the
revision) and shall re-submit a revised Review Report and/or revised
Contractor’s Proposals to the Authority for the Authority's approval within twenty
(20) Working Days of the date of the Authority's notice of rejection. The
provisions of paragraph 6.3 and this paragraph 6.3 shall apply again to any
resubmitted Review Report and Contractor’s Proposals, provided that either
Party may refer any disputed matters for resolution by the dispute resolution
procedure set out at Clause 34 at any time.
6.5
The Contractor shall as soon as is reasonably practicable after receiving the Authority's
approval of the Contractor's Proposals (having regard to the significance of any risks
highlighted in the Review Report) effect any change in its practices or procedures
necessary so as to give effect to the Contractor's Proposals. Any such change shall be
at the Contractor’s expense unless it can be reasonably shown that the changes are
required because of a material change to the risk profile of the Services.
7
TESTING OF THE SERVICE CONTINUITY PLAN
7.1
The Contractor shall test the Service Continuity Plan on a regular basis (and in any
event not less than once in every Contract Year). Subject to paragraph 7.2, the
Authority may require the Contractor to conduct additional tests of some or all aspects
of the Service Continuity Plan at any time where the Authority considers it necessary,
including where there has been any change to the Services or any underlying business
processes, or on the occurrence of any event which may increase the likelihood of the
need to implement the Service Continuity Plan.
7.2
If the Authority requires an additional test of the Service Continuity Plan, it shall give
the Contractor written notice and the Contractor shall conduct the test in accordance
with the Authority's requirements and the relevant provisions of the Service Continuity
Plan. The Contractor's costs of the additional test shall be borne by the Authority unless
the Service Continuity Plan fails the additional test in which case the Contractor's costs
of that failed test shall be borne by the Contractor.
74
DocuSign Envelope ID: 35B47601-E1CA-49EF-B405-3E0F8023715E
7.3
The Contractor shall undertake and manage testing of the Service Continuity Plan in
full consultation with the Authority and shall liaise with the Authority in respect of the
planning, performance, and review, of each test, and shall comply with the reasonable
requirements of the Authority in this regard. Each test shall be carried out under the
supervision of the Authority or its nominee.
7.4
The Contractor shall ensure that any use by it or any sub-contractor of “live” data in
such testing is first approved with the Authority. Copies of live test data used in any
such testing shall be (if so required by the Authority) destroyed or returned to the
Authority on completion of the test.
7.5
The Contractor shall, within twenty (20) Working Days of the conclusion of each test,
provide to the Authority a report setting out:
(a)
the outcome of the test;
(b)
any failures in the Service Continuity Plan (including the Service Continuity
Plan's procedures) revealed by the test; and
(c)
the Contractor's proposals for remedying any such failures.
7.6
Following each test, the Contractor shall take all measures requested by the Authority,
(including requests for the re-testing of the Service Continuity Plan) to remedy any
failures in the Service Continuity Plan and such remedial activity and re-testing shall
be completed by the Contractor, at no additional cost to the Authority, by the date
reasonably required by the Authority and set out in such notice.
7.7
For the avoidance of doubt, the carrying out of a test of the Service Continuity Plan
(including a test of the Service Continuity Plan’s procedures) shall not relieve the
Contractor of any of its obligations under the Contract.
7.8
The Contractor shall also perform a test of the Service Continuity Plan in the event of
any major reconfiguration of the Services or as otherwise reasonably requested by the
Authority.
8
INVOCATION OF THE SERVICE CONTINUITY PLAN
75
DocuSign Envelope ID: 35B47601-E1CA-49EF-B405-3E0F8023715E
8.1
In the event of a loss of any critical part of the Service or a Disaster, the Contractor
shall immediately invoke the business continuity and disaster recovery provisions in
the Service Continuity Plan, including any linked elements in other parts of the Service
Continuity Plan, and shall inform the Authority promptly of such invocation. In all other
instances the Contractor shall invoke the business continuity and disaster recovery
plan elements only with the prior consent of the Authority.
8.2
The Insolvency Continuity Plan element of the Service Continuity Plans, including any
linked elements in other parts of the Service Continuity Plan, shall be invoked by the
Contractor:
(a)
where an Insolvency Event of a subsidiary company of the NHS Confederation
(other than the Contractor) could reasonably be expected to adversely affect
delivery of the Services; and/or
(b)
where there is an Insolvency Event of the Contractor and the insolvency
arrangements enable the Contractor to invoke the plan.
(ooo) Section Twelve – Corporate Social Responsibility shall be added as follows:
SECTION
TWELVE
CORPORATE SOCIAL RESPONSIBILITY
1
What the Authority expects from its suppliers
1.1
In September 2017, HM Government published a Supplier Code of Conduct setting
out the standards and behaviours expected of suppliers who work with government.
https://www.gov.uk/government/publications/supplier-code-of-conduct
1.2
The Authority expects its suppliers and subcontractors to meet the standards set out
in that Code. In addition, the Authority expects its suppliers and subcontractors to
comply with the standards set out in this Section.
1.3
The Contractor acknowledges that the Authority may have additional requirements in
relation to corporate social responsibility. The Authority expects that the Contractor
76
DocuSign Envelope ID: 35B47601-E1CA-49EF-B405-3E0F8023715E
and its subcontractors will comply with such corporate social responsibility
requirements as the Authority may notify to the Contractor from time to time.
2.
Equality and Accessibility
2.1
In addition to legal obligations, the Contractor shall support the Authority in fulfilling its
Public Sector Equality duty under S149 of the Equality Act 2010 by ensuring that it
fulfils its obligations under the Contract in a way that seeks to:
2.1.1 eliminate discrimination, harassment or victimisation of any kind; and
2.1.2 advance equality of opportunity and good relations between those with a
protected characteristic (age, disability, gender reassignment, pregnancy and
maternity, race, religion or belief, sex, sexual orientation, and marriage and civil
partnership) and those who do not share it.
2.2
The Contractor shall report on activities undertaken by it to create employment
opportunities (including those aimed at people who are under-represented in the job
market, who face particular barriers to employment or who are located in areas of
multiple deprivation) to the Authority.
2.3
The Contractor shall report on activities undertaken by it to support relevant sector
related, sustainable skills growth (including those activities dedicated to school and
college visits e.g. delivering careers talks, curriculum support, literacy support and
safety talks) to the Authority.
3.
Modern Slavery, Child Labour and Inhumane Treatment
"Modern Slavery Helpline" means the mechanism for reporting suspicion, seeking
help or advice and information on the subject of modern slavery available online at
https://www.modernslaveryhelpline.org/report or by telephone on
.
3.1
The Contractor:
3.1.1 shall not use, nor allow its subcontractors to use forced, bonded or involuntary
prison labour;
77
DocuSign Envelope ID: 35B47601-E1CA-49EF-B405-3E0F8023715E
3.1.2 shall not require any Contractor Personnel or subcontractor to lodge deposits
or identity papers with their employer and shall be free to leave their employer
after reasonable notice;
3.1.3 warrants and represents that it has not been convicted of any slavery or human
trafficking offences anywhere around the world;
3.1.4 warrants that to the best of its knowledge it is not currently under investigation,
inquiry or enforcement proceedings in relation to any allegation of slavery or
human trafficking offenses anywhere around the world;
3.1.5 shall make reasonable enquires to ensure that its officers, employees and
subcontractors have not been convicted of slavery or human trafficking
offenses anywhere around the world;
3.1.6 shall have and maintain throughout the term of the Contract its own policies
and procedures to ensure its compliance with the Modern Slavery Act and
include in its contracts with its subcontractors anti-slavery and human trafficking
provisions;
3.1.7 shall implement due diligence procedures to ensure that there is no slavery or
human trafficking in any part of its supply chain performing obligations under
the Contract;
3.1.8 shall prepare and deliver to the Authority, an annual slavery and human
trafficking report setting out the steps it has taken to ensure that slavery and
human trafficking is not taking place in any of its supply chains or in any part of
its business with its annual certification of compliance with paragraph 3;
3.1.9 shall not use, nor allow its employees or subcontractors to use physical abuse
or discipline, the threat of physical abuse, sexual or other harassment and
verbal abuse or other forms of intimidation of its employees or subcontractors;
3.1.10 shall not use or allow child or slave labour to be used by its subcontractors;
78
DocuSign Envelope ID: 35B47601-E1CA-49EF-B405-3E0F8023715E
3.1.11 shall report the discovery or suspicion of any slavery or trafficking by it or its
subcontractors to the Authority and Modern Slavery Helpline.
4.
Income Security
4.1
The Contractor shall:
4.1.1 ensure that that all wages and benefits paid for a standard working week meet,
at a minimum, national legal standards in the country of employment;
4.1.2 ensure that all Contractor Personnel are provided with written and
understandable information about their employment conditions in respect of
wages before they enter;
4.1.3 all workers shall be provided with written and understandable Information about
their employment conditions in respect of wages before they enter employment
and about the particulars of their wages for the pay period concerned each time
that they are paid;
4.1.4 not make deductions from wages:
(a)
as a disciplinary measure;
(b)
except where permitted by law; or
(c)
without expressed permission of the worker concerned;
4.1.5 record all disciplinary measures taken against Contractor Personnel; and
4.1.6 ensure that Contractor Personnel are engaged under a recognised employment
relationship established through national law and practice.
5.
Working Hours
5.1
The Contractor shall:
79
DocuSign Envelope ID: 35B47601-E1CA-49EF-B405-3E0F8023715E
5.1.1 ensure that the working hours of Contractor Personnel comply with national
laws, and any collective agreements;
5.1.2 that the working hours of Contractor Personnel, excluding overtime, shall be
defined by contract, and shall not exceed 48 hours per week unless the
individual has agreed in writing;
5.1.3 ensure that use of overtime used responsibly, taking into account:
(a)
the extent;
(b)
frequency; and
(c)
hours worked;
by individuals and by the Contractor Personnel as a whole.
5.2
The total hours worked in any seven day period shall not exceed 60 hours, except
where covered by paragraph 5.3 below.
5.3
Working hours may exceed 60 hours in any seven day period only in exceptional
circumstances where all of the following are met:
5.3.1 this is allowed by national law;
5.3.2 this is allowed by a collective agreement freely negotiated with a workers’
organisation representing a significant portion of the workforce; appropriate
safeguards are taken to protect the workers’ health and safety; and
5.3.3 the employer can demonstrate that exceptional circumstances apply such as
unexpected production peaks, accidents or emergencies.
5.4
All Contractor Personnel shall be provided with at least one (1) day off in every seven
(7) day period or, where allowed by national law, two (2) days off in every fourteen (14)
day period.
80
DocuSign Envelope ID: 35B47601-E1CA-49EF-B405-3E0F8023715E
6.
Sustainability
6.1
The Contractor meet the applicable Government Buying Standards applicable to
Deliverables
which
can
be
found
online
at:
https://www.gov.uk/government/collections/sustainable-procurement-the-
government-buying-standards-gbs
81
DocuSign Envelope ID: 35B47601-E1CA-49EF-B405-3E0F8023715E
(ppp) Section Thirteen – Commercially Sensitive Information shall be added as follows:
SECTION THIRTEEN
COMMERCIALLY SENSITIVE INFORMATION
(qqq) Section Fourteen – Contract Price shall be added as follows:
SECTION FOURTEEN
CONTRACT PRICE
This Section details the Contract Price each year, from Contract Year 12 onwards. This
Section will be reviewed and amended by the Parties once each Contract Year at the time
when the Contract Price is determined in accordance with Clause 5, or at such other times or
intervals as may be agreed in writing between the Parties.
Contract Year
Contract Price
Contract Year 12 – 2021-2022
£9,219,219.60
(rrr) Annex A shall be deleted and the title at Annex A shall be amended to read NOT USED.
82
DocuSign Envelope ID: 35B47601-E1CA-49EF-B405-3E0F8023715E
SCHEDULE 2
CONFORMED
CONTRACT DATED: 1
April 2010
(1) SECRETARY OF STATE FOR HEALTH AND SOCIAL
CARE and
(2) THE NHS CONFEDERATION
CONTRACT
for the Provision of Employers' Organisation Services
83
DocuSign Envelope ID: 35B47601-E1CA-49EF-B405-3E0F8023715E
Table of contents
Clause heading and number
Page number
1.
DEFINITIONS AND INTERPRETATION ......................................................................... 4
2.
TERM OF CONTRACT ..................................................................................................... 17
3
SERVICES .................................................................................................................... 18
4.
PRICE ........................................................................................................................... 18
5.
PRICE ADJUSTMENT DURING THE LIFE OF THE CONTRACT .............................. 19
6.
VALUE ADDED TAX .............................................................................................................. 24
7.
PAYMENT .......................................................................................................................... 25
8.
VARIATION ....................................................................................................................... 25
9
CONTRACTOR'S STATUS ........................................................................................ 28
10.
SET-OFF ....................................................................................................................... 29
11.
CONTRACTORS PERSONNEL ................................................................................. 29
12.
NOT USED ......................................................................................................................... 30
13.
CONFIDENTIALITY ......................................................................................................... 30
14.
INTELLECTUAL PROPERTY RIGHTS .......................................................................... 31
15.
PUBLICITY AND GOOD FAITH/OUTSIDE ACVITIES ...................................................... 33
15A. GOVERNANCE ............................................................................................................ 33
16.
RECORDS, REPORTS, AUDIT AND OPEN BOOK DATA .................................... 34
17.
INDEMNITY AND INSURANCE ..................................................................................... 34
18.
PREVENTION OF FRAUD AND BRIBERY ................................................................... 36
19.
DISCRIMINATION AND HUMAN RIGHTS ......................................................................... 38
20.
HEALTH AND SAFETY ................................................................................................... 39
21.
TRANSFER, SUB-CONTRACTING AND CARRYING ON BUSINESS ...................... 39
22.
SERVICE OF NOTICES AND COMMUNICATIONS .................................................... 42
23.
SEVERABILITY ................................................................................................................ 42
24.
WAIVER ............................................................................................................................. 42
25.
TERMINATION ON CHANGE OF CONTROL AND INSOLVENCY ........................... 43
26.
TERMINATION ON DEFAULT .............................................................................................. 42
27.
GENERAL TERMINATION .............................................................................................. 43
28.
CONSEQUENCES OF TERMINATION .................................................................... 43
29.
TRANSITION OF WORK .................................................................................................. 48
30.
TRANSFER OF UNDERTAKINGS AND PROTECTION OF EMPLOYMENT ............ 50
DocuSign Envelope ID: 35B47601-E1CA-49EF-B405-3E0F8023715E
31.
DATA PROTECTION ........................................................................................................ 53
32.
FREEDOM OF INFORMATION ....................................................................................... 57
33.
CONFLICT OF INTEREST................................................................................................ 58
34.
DISPUTE RESOLUTION................................................................................................... 59
35.
ARBITRATION .................................................................................................................. 60
36.
LIMITATION OF LIABILITY ........................................................................................... 60
37.
LAW AND JURISDICTION .............................................................................................. 62
38.
FORCE MAJEURE ...................................................................................................... 62
39.
RIGHTS OF THIRD PARTIES .......................................................................................... 62
40.
ENTIRE AGREEMENT ..................................................................................................... 63
41.
NO PARTNERSHIP OR AGENCY ................................................................................... 63
42.
COUNTERPARTS ....................................................................................................... 63
Section One – Scope of Work ............................................................................. 65
Section Two – Performance, Financial Reports and Audit Rights .....................67
Section Three – Not Used ....................................................................................75
Section Four – Administrative Instructions ............................................................. 76
Section Five – Variation to Contract Form .............................................................. 78
Section Six – Expert Staff ........................................................................................ 82
Section Seven – Relevant Employees .................................................................84
Section Eight – Price Adjustment Illustration ......................................................... 85
Section Nine – Governance ...................................................................................... 86
Section Ten – 2004 Contract Variations .................................................................. 96
Section Eleven – Service Continuity Plan ............................................................... 98
Section Twelve – Corporate Social Responsibility ............................................... 110
Section Thirteen – Commercially Sensitive Information ...................................... 115
Section Fourteen – Contract Price ..................................................................... 116
Annex A – Not Used ............................................................................................... 117
Annex B
Annex B – PKF Report ........................................................................................... 118
withheld
under
Section
43
NHS Employers – VAR02 2021/22
85
DocuSign Envelope ID: 35B47601-E1CA-49EF-B405-3E0F8023715E
THIS CONTRACT is made on the 1st day of April 2021
BETWEEN:
(3)
THE SECRETARY OF STATE FOR HEALTH AND SOCIAL CARE acting as
part of the Crown through the Department of Health and Social Care of 39 Victoria
St, Westminster, London SW1H 0EU (which expression includes its successors and
assignees) ("the Authority”); and
(2)
THE NHS CONFEDERATION, a registered charity (number 1090329),
incorporated and registered in England and Wales with company number 04358614
and whose registered office is at 2nd Floor, 18 Smith Square, London, England,
SW1P 3HZ ("the Contractor")1
INTRODUCTION
(A)
The Authority wishes to purchase and the Contractor wishes to supply the Services
(as defined below) on the terms and subject to the conditions set out below.
(B)
The Authority previously purchased and the Contractor previously provided services
pursuant to the 2004 Contract (as defined below) which for the avoidance of doubt will
terminate on the Commencement Date (as defined below), save for with respect to the
2004 Contract Variations, and the Contract (as defined below) shall supersede any
other agreement currently in place between the Authority and the Contractor for the
provision of the Services (as defined below).
(C)
As part of a reorganisation between the Contractor, The NHS Confederation Group
Company (
NHSG) and The NHS Conferderation (Employers) Company Limited
(
NHSE)2, NHSE and NHSG now wish to be released from all obligations in respect of
the future performance of the Contract from and including 1 April 2014 and all liabilities
from the commencement date in the Contract and the Authority has agreed to give
such release upon the undertaking that the Contractor be bound by the Contract in
1 As novated by the Deed of Novation of a Contract for the Provision of Services, dated 1 April 2014
2 The original parties to the Contract, prior to the contract being novated by the Deed of Novation of a Contract for the Provision of Services, dated 1 April 2014
NHS Employers – VAR02 2021/22
86
DocuSign Envelope ID: 35B47601-E1CA-49EF-B405-3E0F8023715E
place of NHSE and NHSG. The Parties have agreed to the transfer on the terms set
out in the Deed of Novation.3
1.
DEFINITIONS AND INTERPRETATION
1.1
In the Contract the following definitions shall be used for the purposes of interpreting
the Contract and all documents relating thereto. They apply except where the context
requires otherwise. Other definitions that are not of general application are stated in
the Section where the definition is first used and shall apply only to that Section unless
otherwise shown.
"2004 Contact” means the contract for the provision of employers’ organisation
services entered into between the Contractor and the Authority dated 27 October 2004.
“2004 Contract Variations” means those variations to the 2004 Contract which did not
terminate on the Commencement Date and which are listed in Section Ten – 2004
Contract Variations.4
"2010 Contact” means the contract for the provision of employers’ organisation
services entered into between the Contractor and the Authority dated 8 July 2010.5
"Agreed Purpose" means the processing is necessary in order to ensure that the
Contractor can effectively deliver the Services to the Authority.6
“ADR” means Alternative Dispute Resolution.
“Approved" or "Approval" means approved or approval in writing.
"Associate Company" in relation to corporate body means any other corporate body
controlled by the same person or persons who control the first mentioned corporate
body, where "control" has the meaning assigned thereto by Section 1124 of the
Corporation Tax Act 2010.
3 Recital C inserted from the Deed of Novation of a Contract for the Provision of Services, dated 1 April 2014 – amended to apply to the Parties as they now are within the
novated Contract
4 Amended by variation CV2 2021/22, dated 1 April 2021
5 Inserted as per variation CV2 2021/22, dated 1 April 2021
6 Inserted as per variation CV4 2018/19, dated 20 December 2018
NHS Employers – VAR02 2021/22
87
DocuSign Envelope ID: 35B47601-E1CA-49EF-B405-3E0F8023715E
“Audit Agents” means: (a) the Authority’s internal and external auditors; (b) the
Authority’s statutory or regulatory auditors; (c) the Comptroller and Auditor General,
their staff and/or any appointed representatives of the National Audit Office; (d) HM
Treasury or the Cabinet Office; (e) any party formally appointed by the Authority to
carry out audit or similar review functions; and (f) successors or assigns of any of the
above.7
"Authority's Representative" means the person nominated in Section Four -
Administrative Instructions authorised to act on behalf of the Secretary of State for
Health and Social Care.8
“Business Continuity Plan” has the meaning given in paragraph 1.2(a)(ii) of Section
Eleven – Service Continuity Plan.9
“Business Continuity Services” has the meaning given in paragraph 3.2 of Section
Eleven – Service Continuity Plan.10
"CEDR” means the centre for Effective Dispute Resolution.
"Commencement Date" shall be 1 April 2010.
“Commercially Sensitive Information" means the information listed in the table in
Section Thirteen which is of a commercially sensitive nature relating to the Contractor,
its Intellectual Property Rights or its business or which the Contractor has indicated to
the Authority that, if disclosed by the Authority, would cause the Contractor significant
commercial disadvantage or material financial loss.11
"Computer Aided Job Evaluation (“CAJE”) Contract" means the contract between the
Authority, the Contractor and NorthgateArinso Limited for the management of the
CAJE Tool contract.
7 Inserted as per variation CV2 2021/22, dated 1 April 2021
8 Amended by variation CV2 2021/22, dated 1 April 2021
9 Inserted as per variation CV2 2021/22, dated 1 April 2021
10 Inserted as per variation CV2 2021/22, dated 1 April 2021
11 Amended by variation CV2 2021/22, dated 1 April 2021
NHS Employers – VAR02 2021/22
88
DocuSign Envelope ID: 35B47601-E1CA-49EF-B405-3E0F8023715E
"Condition" means a condition within the Contract.
"Confidential Information" means information that falls within the types of information
that has been specifically designated in writing as confidential by either Party or that
which ought to be considered as confidential (however it is conveyed or on whatever
media it is stored) including information which relates to the business, affairs,
properties, assets, trading practices, goods/services, developments, trade secrets,
Intellectual Property Rights, know-how, personnel, customers and suppliers of either
Party, all personal data and sensitive personal data within the meaning of the Data
Protection Act 2018.12
"Contract" shall mean the agreement concluded between the Authority and the
Contractor, as varied in accordance with Clauses 3 and 5, consisting of the following
Sections which shall be read as one document and which, in the event of ambiguity or
contradiction between Sections, shall be given precedence in the order listed;
(i)
Section One – Scope of Work
(ii)
Section Two – Performance, Financial Reports and Audit Rights
(iii)
Section Three – Not Used
(iv)
Section Four – Administrative Instructions
(v)
Section Five – Variation to Contract Form
(vi)
Section Six – Expert Staff
(vii)
Section Seven - Relevant Employees
(viii)
Section Eight – Price Adjustment Illustration
(ix)
Section Nine – Governance
(x)
Section Ten – 2004 Contract Variations
(xi)
Section Eleven – Service Continuity Plan
(xii)
Section Twelve – Corporate Social Responsibility
(xiii)
Section Thirteen – Commercially Sensitive Information13
"Contract Period" shall be the period for which the Contract shall continue as specified
in Clause 2.14
12 Amended by variation CV2 2021/22, dated 1 April 2021
13 Amended by variation CV2 2021/22, dated 1 April 2021
14 Amended by variation CV2 2021/22, dated 1 April 2021
NHS Employers – VAR02 2021/22
89
DocuSign Envelope ID: 35B47601-E1CA-49EF-B405-3E0F8023715E
"Contract Price" means the price, exclusive of Value Added Tax, payable by the
Authority to the Contractor for the performance of the Services each year calculated in
accordance with Clauses 4 or 5.
“Contract Year” means a period of twelve (12) consecutive months (or such shorter
period if this Contract expires or is terminated earlier) commencing on the
Commencement Date and/or each subsequent anniversary of the Commencement
Date thereafter and “Contract Years” shall be construed accordingly.15
“Contract Year 1” means the twelve (12) month period commencing on 1 April 2010
and expiring on 31 March 2011.
“Contract Year 2” means the twelve (12) month period commencing on 1 April 2011
and expiring on 31 March 2012.
“Contract Year 3” means the twelve (12) month period commencing on 1 April 2012
and expiring on 31 March 2013.
“Contract Year 4” means the twelve (12) month period commencing on 1 April 2013
and expiring on 31 March 2014.
“Contract Year 5” means the twelve (12) month period commencing on 1 April 2014
and expiring on 31 March 2015.
“Contract Year 6” means the twelve (12) month period commencing on 1 April 2015
and expiring on 31 March 2016.
“Contract Year 7” means the twelve (12) month period commencing on 1 April 2016
and expiring on 31 March 2017.
“Contract Year 8” means the twelve (12) month period commencing on 1 April 2017
and expiring on 31 March 2018.
15 Inserted as per variation CV2 2021/22, dated 1 April 2021
NHS Employers – VAR02 2021/22
90
DocuSign Envelope ID: 35B47601-E1CA-49EF-B405-3E0F8023715E
“Contract Year 9” means the twelve (12) month period commencing on 1 April 2018
and expiring on 31 March 2019.
“Contract Year 10” means the twelve (12) month period commencing on 1 April 2019
and expiring on 31 March 2020.
“Contract Year 11” means the twelve (12) month period commencing on 1 April 2020
and expiring on 31 March 2021.
“Contract Year 12” means the twelve (12) month period commencing on 1 April 2021
and expiring on 31 March 2022.16
“Contractor Personnel” means all directors, officers, employees, agents, consultants
and contractors of the Contractor and/or of any sub-contractor engaged in the
performance of the Contractor’s obligations under the Contract.17
"Contractor's Representative" means the individual authorised to act on behalf of the
Contractor for the purposes of the Contract.
“Counsel’s Opinion” means the written advice of James Ramsden of 4-5 Gray’s Inn
Square (“Counsel”) dated 8th June 2010, as attached to the 2010 Contract at Annex
A.18
"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 and government agencies.
"Data Protection Legislation" means the General Data Protection Regulation ((EU)
2016/679) as incorporated into, amended and applied under UK law (UK GDPR), the
Data Protection Act 2018, the Privacy and Electronic Communications (EC Directive)
16 Definitions of Contract Years 1 to 12 inserted as per variation CV2 2021/22, dated 1 April 2021
17 Inserted as per variation CV2 2021/22, dated 1 April 2021
18 Amended by variation CV 2 2021/22, dated 1 April 2021
NHS Employers – VAR02 2021/22
91
DocuSign Envelope ID: 35B47601-E1CA-49EF-B405-3E0F8023715E
Regulations 2003 and any replacement legislation coming into effect from time to time
and any other applicable laws relating to the processing of Personal Data.19
"Data Security Breach" means a breach of security leading to the accidental or unlawful
destruction, loss, alteration, unauthorised disclosure of, or access to the Personal
Data.20
"Deliverables" means all documents, products and materials developed by the
Contractor or its agents, subcontractors consultants and employees in relation to the
services in any form, including computer programs, data, reports and specifications
(including drafts).
“Department” means a body listed in one of the following sub-categories of the Central
Government classification of the Public Sector Classification Guide, as published and
amended from time to time by the Office for National Statistics: (a) Government
Department; or (b) Non-Ministerial Department.21
“Disaster” the occurrence of one or more events which, either separately or
cumulatively, mean that the Services, or a material part of the Services will be
unavailable for a period of 48 hours or which is reasonably anticipated will mean that
the Services or a material part of the Services will be unavailable for that period.22
“Disaster Recovery Plan” has the meaning given in paragraph 1.2(a)(iii) of Section
Eleven – Service Continuity Plan.23
“Disaster Recovery Services” means the services embodied in the processes and
procedures for restoring the Services following the occurrence of a Disaster.24
“Disaster Recovery System” means the system identified by the Contractor which shall
be used for the purpose of delivering the Disaster Recovery Services.25
19 Amended by variation CV 2 2021/22, dated 1 April 2021
20 Inserted as per variation CV 4 2018/19, dated 20 December 2018
21 Inserted as per variation CV2 2021/22, dated 1 April 2021
22 Inserted as per variation CV2 2021/22, dated 1 April 2021
23 Inserted as per variation CV2 2021/22, dated 1 April 2021
24 Inserted as per variation CV2 2021/22, dated 1 April 2021
25 Inserted as per variation CV2 2021/22, dated 1 April 2021
NHS Employers – VAR02 2021/22
92
DocuSign Envelope ID: 35B47601-E1CA-49EF-B405-3E0F8023715E
"Document" includes, without limitation, in addition to any document in writing, any
drawing, map, plan, diagram, design, picture or other image, tape, dish or other device
or record embodying information in any form.
"Electronic Knowledge and Skills Framework (“eKSF”) " means the contract between
the Authority, the Contractor, Method Consulting and the Ministry of Defence (“MoD”)
for the management of the eKSF Tool in the National Health Service (“NHS) through
the Total Solutions framework managed by the MoD with the objective of achieving the
best improvements in VFM and take up of the eKSF Tool in the NHS.
"Environmental Information Regulations" 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.
“Financial Transparency Objectives” has the meaning given in paragraph 1 of Part A
of Section Two – Financial Reports and Audit Rights.26
"FOIA" means the Freedom of Information Act 2000 ("Act"), and any subordinate
legislation made under the 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.
“Governance Board” means the body described in paragraph 3 of Section Nine –
Governance.27
“Governance Board Member” means the initial persons appointed by the Authority and
Contractor to the Governance Board as set out in Part A of Section Nine – Governance
and any replacements from time to time agreed by the Parties in accordance with
paragraph 3.4 of Section Nine - Governance.28
“Governance Plan” means the governance plan set out in Section Nine –
Governance.29
26 Inserted as per variation CV2 2021/22, dated 1 April 2021
27 Inserted as per variation CV2 2021/22, dated 1 April 2021
28 Inserted as per variation CV2 2021/22, dated 1 April 2021
29 Amended by variation CV 2 2021/22, dated 1 April 2021
NHS Employers – VAR02 2021/22
93
DocuSign Envelope ID: 35B47601-E1CA-49EF-B405-3E0F8023715E
"Handover Period" means the period, to be agreed between the Parties which shall not
exceed twenty-six (26) weeks preceding termination or expiration of the Contract.30
"Handover Process" means the arrangements notified to the Contractor by the
Authority in accordance with Clause 29.1.
"Information" has the meaning given under section 84 of FOIA.
“Insolvency Continuity Plan” has the meaning given in paragraph 1.2(a)(iv) of Section
Eleven – Service Continuity Plan.31
“Insolvency Event” with respect to any person, means: (a) that person 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: (i) (being a company or a LLP) is deemed
unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986,
or (ii) (being a partnership) is deemed unable to pay its debts within the meaning of
section 222 of the Insolvency Act 1986; (b) that person commences negotiations with
one or more of its creditors (using a voluntary arrangement, scheme of arrangement
or otherwise) with a view to rescheduling any of its debts, or makes a proposal for or
enters into any compromise or arrangement with one or more of its creditors or takes
any step to obtain a moratorium pursuant to Section 1A and Schedule A1 of the
Insolvency Act 1986 other than (in the case of a company, a LLP or a partnership) for
the sole purpose of a scheme for a solvent amalgamation of that person with one or
more other companies or the solvent reconstruction of that person; (c) another person
becomes entitled to appoint a receiver over the assets of that person or a receiver is
appointed over the assets of that person; (d) a creditor or encumbrancer of that person
attaches or takes possession of, or a distress, execution or other such process is levied
or enforced on or sued against, the whole or any part of that person’s assets and such
attachment or process is not discharged within fourteen (14) days; (e) that person
suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial
part of its business; (f) where that person is a company, a LLP or a partnership: (i) a
petition is presented (which is not dismissed within fourteen (14) days of its service), a
30 Amended by variation CV 2 2021/22, dated 1 April 2021
31 Inserted as per variation CV2 2021/22, dated 1 April 2021
NHS Employers – VAR02 2021/22
94
DocuSign Envelope ID: 35B47601-E1CA-49EF-B405-3E0F8023715E
notice is given, a resolution is passed, or an order is made, for or in connection with
the winding up of that person other than for the sole purpose of a scheme for a solvent
amalgamation of that person with one or more other companies or the solvent
reconstruction of that person; (ii) 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 filed at Court or given or if an administrator is appointed, over that
person; (iii) (being a company or a LLP) the holder of a qualifying floating charge over
the assets of that person has become entitled to appoint or has appointed an
administrative receiver; or (iv) being a partnership) the holder of an agricultural floating
charge over the assets of that person has become entitled to appoint or has appointed
an agricultural receiver; or (g) any event occurs, or proceeding is taken, with respect
to that person in any jurisdiction to which it is subject that has an effect equivalent or
similar to any of the events mentioned above.32
"Intellectual Property Rights" includes but is not limited to patents, rights to inventions,
inventions, trade marks, service marks, logos, design rights (whether registerable or
otherwise) applications for any of the foregoing, copyright, database rights, domain
names, trade or business names, moral rights and other similar rights or obligations
whether registerable or not in any country (including but not limited to the United
Kingdom) and the right to sue for passing off and "Intellectual Property Right" should
be construed accordingly.
"Issued Property" shall mean all such property as the Authority possesses or controls
and which is used in relation to, or is necessary for the purposes of the Services
including historical records and data.
“Key Performance Indicators” means the measurable target that demonstrates how
effectively the Contractor is achieving the key contract objectives.33
"Liabilities" means all losses, liabilities, claims, actions, proceedings, costs, demands
and expenses (including legal fees) and "Liability" shall be construed accordingly.
"month" shall mean a calendar month.
32 Inserted as per variation CV2 2021/22, dated 1 April 2021
33 Inserted as per variation CV2 2021/22, dated 1 April 2021
NHS Employers – VAR02 2021/22
95
DocuSign Envelope ID: 35B47601-E1CA-49EF-B405-3E0F8023715E
"NHS Confederation Group" means the Contractor, any subsidiary of the Contractor,
any holding company of the Contractor and any subsidiary of any such holding
company of the Contractor from time to time and the expression "member of the NHS
Confederation Group" shall be construed accordingly.
"NHS tariff" shall mean the annual percentage uplift that is applied to the national tariff
prices for pay and price inflation less an efficiency requirement set by the Authority in
relation to that year, or such other annual percentage uplift that replaces the uplift to
the national tariff prices for pay and price inflation as the case may be from time to
time.
“Open Book Data” means the complete and accurate financial and non-financial
information which is sufficient to enable the Authority to verify the charges already paid
or payable and charges forecast to be paid during the remainder of the Contract Period,
including details and all assumptions relating to: (a) the Contractor’s costs broken down
against each Service and/or Deliverable, including actual capital expenditure (including
capital replacement costs) and the unit cost and total actual costs of all hardware and
software; (b) operating expenditure relating to the provision of the Services including
an analysis showing: (i) the unit costs and quantity of consumables and bought-in
services; (ii) manpower resources broken down into the number and grade/role of all
Contractor Personnel (free of any contingency) together with a list of agreed rates
against each manpower grade; (iii) a list of costs underpinning those rates for each
manpower grade, being the agreed rate less the Contractor’s profit margin; and (iv)
reimbursable expenses; (c) overheads; (d) all interest, expenses and any other third
party financing costs incurred in relation to the provision of the Services; (e) the profit
achieved over the Contract Period and on an annual basis; (f) confirmation that all
methods of cost apportionment and overhead allocation are consistent with and not
more onerous than such methods applied generally by the Contractor; (g) an
explanation of the type and value of risk and contingencies associated with the
provision of the Services, including the amount of money attributed to each risk and/or
contingency; and (h) the actual costs profile for each Service.34
34 Inserted as per variation CV2 2021/22, dated 1 April 2021
NHS Employers – VAR02 2021/22
96
DocuSign Envelope ID: 35B47601-E1CA-49EF-B405-3E0F8023715E
"Parties" means the Authority and the Contractor and "Party" shall be construed
accordingly.
"Permitted Recipient" means a director, employee or professional advisor of each
respective Party or an agent or contractor used by that Party in the fulfilment of the
Agreed Purpose who has a legitimate need to receive and process the Personal Data
for the Agreed Purpose.35
"Persons" where the context allows, includes a corporation or an unincorporated
association and “Person" should be construed accordingly.
"Personal Data" shall have the meaning given to it in the Data Protection Legislation
and for the purposes of this Contract, shall mean the name, work e-mail address, job
title and employing organisation relating to staff employed by NHS organisations and
arm's length bodies.36
“PKF Report” means the written report dated April 2010 and entitled “Review of the
New Member Model Development – Final Report”, prepared by PKF at the request of Annex B
withheld
the trustees of The NHS Confederation, attached to the Contract at Annex B.
under
Section 43
"Premises" means any premises leased, licensed or otherwise occupied by the
Contractor in connection with the provision of the Services.
“Prohibited Act” means: (a) to directly or indirectly offer, promise or give any person
working for or engaged by the Authority a financial or other advantage to: (i) induce
that person to perform improperly a relevant function or activity; or (ii) reward that
person for improper performance of a relevant function or activity; (b) to directly or
indirectly request, agree to receive or accept any financial or other advantage as an
inducement or a reward for improper performance of a relevant function or activity in
connection with the Contract; (c) an offence: (i) under the Bribery Act 2010 (or any
legislation repealed or revoked by such Act); (ii) under legislation or common law
concerning fraudulent acts; or (iii) defrauding, attempting to defraud or conspiring to
defraud the Authority (including offences by the Contractor under Part 3 of the Criminal
35 Inserted as per variation CV 4 2018/19, dated 20 December 2018
36 Inserted as per variation CV 4 2018/19, dated 20 December 2018
NHS Employers – VAR02 2021/22
97
DocuSign Envelope ID: 35B47601-E1CA-49EF-B405-3E0F8023715E
Finances Act 2017); or (d) any activity, practice or conduct which would constitute one
of the offences listed under (c) above if such activity, practice or conduct had been
carried out in the UK.37
“quarter” means a calendar quarter.38
"Redundancy Costs" means the aggregate of the direct statutory and contractual
redundancy payments, the notice period entitlements of the SHA Employees [and all
losses incurred by the Contractor which relate to any claim brought by any SHA
Employee (or their representatives) who is made redundant pursuant to the
arrangements contemplated in clause 30.7 in respect of their dismissal by the
Contractor on the grounds of redundancy save where the Contractor acts in a manner
which
is
unlawful
or
contrary
to
matters
properly
agreed
with
the
Authority].39"Regulatory Authority" means any authority, including, without limitation,
the Information Commissioner's Office, by which either Party is regulated.40
“Related Service Provider” means any person who provides services to the Authority
in relation to the Contract from time to time.41
“Relevant Employee” means any of those individuals listed in Section Seven –
Relevant Employees who remain in the employment of the Contractor.42
"Relevant Pension Scheme" means the Civil Service Pension Scheme and/or the
National Health Service Pension Scheme.
“Relevant Requirements” means all applicable law relating to bribery, corruption and
fraud, including the Bribery Act 2010 and any guidance issued by the Secretary of
State for Justice pursuant to section 9 of the Bribery Act 2010.43
37 Inserted as per variation CV2 2021/22, dated 1 April 2021
38 Inserted as per variation CV2 2021/22, dated 1 April 2021
39 Inserted as per variation No 5-2013/14, dated 26 March 2013
40 Inserted as per variation CV 4 2018/19, dated 20 December 2018
41 Inserted as per variation CV2 2021/22, dated 1 April 2021
42 Amended by variation CV 2 2021/22, dated 1 April 2021
43 Inserted as per variation CV2 2021/22, dated 1 April 2021
NHS Employers – VAR02 2021/22
98
DocuSign Envelope ID: 35B47601-E1CA-49EF-B405-3E0F8023715E
"Request 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.
“Review Report” has the meaning given in paragraph 6.2 of Section Eleven – Service
Continuity Plan.44
“Service Continuity Plan” means the plan prepared pursuant to paragraph 1 of Section
Eleven – Service Continuity Plan which incorporates the Business Continuity Plan,
Disaster Recovery Plan and the Insolvency Continuity Plan.45
"Services" means the services to be performed under the Contract by the Contractor
as set out in Section One – Scope of Work.46
"SHA Employee" means those staff who were previously employed by a Strategic
Health Authority and who were the subject of a TUPE transfer to NHS Employers on 1
April 2013 and whose details are recorded in Section Seven - Relevant Employees.47
"Specially Written Software" means any software created by the Contractor (or by a
third party on behalf of the Contractor) specifically for the purposes of the Contract.
"Subject Access Request" means a request from a Data Subject to exercise his or her
right of access to Personal Data under the Data Protection Legislation.48
"Termination Date" means the last of the dates upon which any programme of work
comprised within the Services cease to be provided by the Contractor in accordance
with the terms of the Contract.
"Value Added Tax" means value added tax chargeable under the Value Added Tax Act
1994 and any similar replacement or additional tax.
44 Inserted as per variation CV2 2021/22, dated 1 April 2021
45 Inserted as per variation CV2 2021/22, dated 1 April 2021
46 Amended by variation CV 2 2021/22, dated 1 April 2021
47 Inserted as per variation CV 4 2018/19, dated 20 December 2018 and subsequently amended by variation CV 2 2021/22, dated 1 April 2021
48 Inserted as per variation CV 4 2018/19, dated 20 December 2018
NHS Employers – VAR02 2021/22
99
DocuSign Envelope ID: 35B47601-E1CA-49EF-B405-3E0F8023715E
"Variation" means a properly executed variation to the Contract in compliance with
Clause 8.
“Variation Date” means 1 April 2021.49
"Work Programmes" means any of the services provided for in Section One – Scope
of Work and falling within the principal service areas set out in paragraph 2 of Section
One – Scope of Work at the date concerned (previously referred to as Service
Schedules prior to Contract Year 12).50
"Working Day" means any day other than a Saturday or Sunday or public holiday in
England & Wales and "Working Days" should be construed accordingly.
1.2
The interpretation and construction of the Contract shall be subject to the following
provisions:
(a)
a reference 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 subsequently amended or re-enacted;
(b)
references to Clauses are references to Clauses in the Section of the Contract
in which they appear, unless otherwise stated;
(c)
the headings to Clauses are for ease of reference only and shall not affect the
interpretation or construction of the Clauses;
(d)
where the context allows, the masculine includes the feminine and the neuter,
and the singular includes the plural and vice versa;
(e)
references to "indemnify" and "indemnifying" any person against any
circumstances include indemnifying and keeping that person harmless from all
actions, and proceedings from time to time made against that person and all
loss or damage and all Liabilities made or incurred by that person and all loss
49 Inserted as per variation CV2 2021/22, dated 1 April 2021
50 Inserted as per variation CV2 2021/22, dated 1 April 2021
NHS Employers – VAR02 2021/22
100
DocuSign Envelope ID: 35B47601-E1CA-49EF-B405-3E0F8023715E
or damage and all Liabilities made or incurred by that person as a consequence
of or which would not have arisen but for that circumstance;
(f)
references to "Authority" shall include any designated person who is authorised
to act on behalf of the Secretary of State for Health and Social Care in matters
pertaining to the Contract;51
(g)
references to holding company and subsidiary are to holding companies and
subsidiaries as defined in section 1159 of the Companies Act 2006 and a
company shall be treated for the purposes only of the membership requirement
contained in subsections 1159(1) (b) and (c), as a member of another company
even if its shares in that other company are registered in the name of (a)
another person (or its nominee), whether by way of security or in connection
with the taking of security, or (b) its nominee.
2.
TERM OF CONTRACT
2.1
Subject always to Clause 2.3, and subject to the right of the Authority to terminate the
Contract in accordance with Clauses 25, 26 and 27, the Contractor shall continue to
provide the Services for a period of three years and, thereafter shall continue to supply
the Services until the Contract is terminated in accordance with any of the provisions
of Clauses 25, 26 and 27.52
2.2
The following provision shall apply to all Contract Years prior to Contract Year 12:
Notwithstanding Clause 2.1 above, the Contract, if continuing in force, shall be
reviewed every three years, or earlier if requested by either Party, to determine whether
it remains 'fit for purpose' or requires revision to reflect the obligations of the Parties
under the Contract. The first review to be completed by 1 April 2014. To facilitate the
review the Parties shall meet no later than three months prior to each review to
determine together the scope of the review and process to be followed to ensure that
the review is completed by the due date.53
51 Clause 1 2(f) amended by variation CV2 2021/22, dated 1 April 2021
52 Clause 2 1 amended by variation CV2 2021/22, dated 1 April 2021
53 Clause 2 2 amended by Variation No 5-2013/14, dated 26 March 2013 and subsequently by variation CV2 2021/22, dated 1 April 2021
NHS Employers – VAR02 2021/22
101
DocuSign Envelope ID: 35B47601-E1CA-49EF-B405-3E0F8023715E
2.3
Subject to the right of the Authority to terminate the Contract in accordance with
Clauses 25 and 26 and with effect from the Variation Date the Contractor shall supply
the Services for a period of twelve (12) months, following which, unless the Contract is
terminated in accordance with its terms, the Contractor shall continue to supply the
Services until the Contract is terminated in accordance with its terms.54
3.
SERVICES
3.1
The Contractor shall begin to provide the Services on the Commencement Date and
shall provide the Services during the Contract Period.
3.2
Services to be provided by the Contractor are detailed in Section One - Scope of Work.
3.3
The Authority and Contractor will agree the services which will be set out in the Work
Programmes. These will be revised annually. The Authority will specify the details of
the services to be undertaken by the Contractor. The cost of the services will be agreed
between the Parties as provided in Clauses 4 and 5, Section One – Scope of Work
and in the Work Programmes.55
3.4
For the avoidance of doubt, the Parties hereby acknowledge and agree that the 2004
Contract Variations shall continue with full force and effect.
4
PRICE56
4.1 The following shall apply to all Contract Years prior to Contract Year 12:
4.1.1 In Contract Year 1 the Authority shall pay to the Contractor £11,784,000
(Eleven Million Seven Hundred and Eighty Four Thousand Pounds) (“the
Price”). The Price shall be fully inclusive of the carrying out of the Services for
the first year of the Contract and, subject to the provisos below, shall remain
firm for Contract Year One. For the avoidance of doubt, the Price shall include
any payments due to the Contractor under the Computer Aided Job Evaluation
Contract and the Electronic Knowledge & Skills Framework.
54 Clause 2 3 inserted as per variation CV2 2021/22, dated 1 April 2021
55 Clauses 3 2 and 3 3 amended by variation CV2 2021/22, dated 1 April 2021
56 Clause 4 amended in its entirety by variation CV2 2021/22, dated 1 April 2021
NHS Employers – VAR02 2021/22
102
DocuSign Envelope ID: 35B47601-E1CA-49EF-B405-3E0F8023715E
4.1.2 The Contract Price for Contract Year 4 shall be as referred to in the letter from
the Authority's
to the Contractor's
dated 20
December 2012. The Contract Price for Contract Year 4 does not include work
for Primary Medical Services, Pharmacy, and Dental (GDS) described in the
2010 Contract within Schedule 3 Scope of Work, section I which will be agreed
by the Parties separately.57
4.1.3 Thereafter the Contract Price will be determined annually and take effect from
the anniversary of the Commencement Date for the year in question. The
Contract Price shall be fully inclusive of the carrying out of the Services for the
year in which it applies and shall be determined in accordance with Clause 5.
4.2
The following shall apply to all Contract Years from Contract Year 12 onwards. The
Contract Price will be determined annually and take effect from the Variation Date, and
subsequently on each anniversary of the Variation Date for the Contract Year in
question. The Contract Price shall be fully inclusive of the carrying out of the Services
for the year in which it applies and shall be determined in accordance with Clause 5.11.
5.
PRICE ADJUSTMENT DURING THE LIFE OF THE CONTRACT
The following Clauses 5.1 to 5.4 inclusive shall apply to all Contract Years prior to, and
inclusive of, Contract Year 4 only58:
5.1
The Contract Price will be adjusted each year in accordance with the NHS tariff. The
adjustment in accordance with the NHS tariff will only apply to that part of the Contract
Price that does not include the Computer Aided Job Evaluation Contract and the
Electronic Knowledge & Skills Framework.
5.1.1 The Authority may elect to reduce the Services required after the first
anniversary of the Commencement Date, and on each anniversary of the
Commencement Date thereafter.
57 Amended by Variation No 5 2013/14, dated 26 March 2013
58 Inserted as per variation CV2 2021/22, dated 1 April 2021
NHS Employers – VAR02 2021/22
103
DocuSign Envelope ID: 35B47601-E1CA-49EF-B405-3E0F8023715E
5.1.2 If the Authority does not elect to reduce the Services in accordance with Clause
5.1.1, then the Contract Price will be the Price which will be reduced by any
savings resulting from the termination, expiration or discontinuance of any
contracts between the Contractor and third parties for the provision of the
Services (including, for the avoidance of doubt, any savings under the
Electronic Knowledge & Skills Framework and the Computer Aided Job
Evaluation Contract) as modified by the NHS tariff.
5.1.3. If the Authority does elect to reduce the Services then the Contract Price will
be the Price which will be reduced by a sum negotiated between the Parties for
the savings represented by the reduction in Services to be provided by the
Contractor (the “Negotiated Sum”). The Price (or the Contract Price as the case
may be) for the purposes of calculating the negotiated reductions in accordance
with the provisions of Clause 5.1.4 below will be the Price (or the Contract Price
as the case may be) excluding that element of the Price (or the Contract Price
as the case may be) which constitutes the Computer Aided Job Evaluation
Contract and the Electronic Knowledge & Skills Framework.
5.1.4 The Parties hereby acknowledge and agree that negotiated reductions:
5.1.4.1 for the second year of the Contract the Negotiated Sum will not exceed
10% (ten percent) of the Price;
5.1.4.2 for the third year of the Contract the Negotiated Sum will not exceed
10% (ten percent) of the Contract Price agreed for the second year of
the Contract (as modified by the NHS tariff); and
5.1.4.3 for the fourth year of the Contract the Negotiated Sum will not exceed
10% (ten percent) of the Contract Price agreed for the third year of the
Contract (as modified by the NHS tariff).
5.1.5 For each subsequent three year period of the Contract the Parties acknowledge
and agree that the Negotiated Sum shall not exceed 10 % (ten percent) of the
Contract Price in any one year and 25% (twenty five percent) over such three
year period.
NHS Employers – VAR02 2021/22
104
DocuSign Envelope ID: 35B47601-E1CA-49EF-B405-3E0F8023715E
5.1.6 The Parties hereby acknowledge and agree that the Contract Price, calculated
in accordance with the mechanism in Clause 5.1, will be reduced by a further
2.65% for each of Contract Year 2, Contract Year 3 and Contract Year 4.59
5.2
Subject to the proviso that efficiencies or innovation introduced by the Contractor do
not result from reduction in the numbers or quality of Expert Staff (as defined in Clause
11.2) then such efficiencies or innovation shall not reduce the Contract Price paid by
the Authority to the Contractor.
5.2 A
5.3
Following the completion of any review under Clause 2.2 the annual Contract Price
may be re-negotiated between the parties and the Contractor shall be entitled to apply
for a variation in the prices covering both labour and materials for the fourth year of the
Contract. Any such variation shall be:
(a)
based solely on increases or decreases in the Contractor's costs for providing
the Services;
(b)
the application shall be supported by full evidence of the relevant changes to
the Contractor's own costs and the revised prices shall be submitted in the
same format as that used for the annual Work Programmes unless otherwise
agreed;
(c)
the Authority shall then consider and not unreasonably refuse or delay the
variation in the Contract Price and, if the Authority agrees, the revised Contract
Price shall be recorded as a Variation in accordance with Clause 8.1.
59 Clause 5 1 6 amended by variation CV2 2021/22, dated 1 April 2021
NHS Employers – VAR02 2021/22
105
DocuSign Envelope ID: 35B47601-E1CA-49EF-B405-3E0F8023715E
5.4
Illustrations of the way the price adjustment mechanism contained in Clause 5.1 shall
operate during Contract Years 1 to 4 are contained in Section Eight.60
The following Clauses 5.5 to 5.10 inclusive shall apply to Contract Years 5 to 11 only:61
5.5
The Parties shall use their reasonable endeavours to agree the Contract Price for the
subsequent year by 15 December prior to the next anniversary of the Commencement
date of the Contract. In the event that the Contract Price for the subsequent year is not
agreed by 15 December and the Authority accepts that it is entirely responsible for the
delay then the Contract Price for the first three months of the subsequent year will be
the same as for the first three months of the preceding year. If the Authority does not
accept responsibility and the parties are unable to reach agreement then the matter
will be resolved under the dispute resolution procedure at Clause 34.
5.6
Section 3 – Scope of Work within the 2010 Contract provides for the Authority and the
Contractor to mutually agree a reprioritisation of the services to be provided under the
Work Programmes. The Contractor agrees to (i) inform the Authority of any reduction
in the cost for the provision of the services that arises as a result of the reprioritisation
and (ii) agree with the Authority how any such cost savings are to be re-invested in the
services under the Work Programmes.
5.7
In addition to Clause 5.6 above the Parties hereby acknowledge that the services
agreed between the Authority and the Contractor may be varied within that year. Where
specific elements of the services cease in any one year the Parties will agree how any
balance of the attributable costs included in the Contract Price for that year are re-
deployed on other elements of the services. The Work Programmes will be amended
to reflect that change.62
5.8
The price contained within the schedules is, unless otherwise expressly agreed
between the Parties, firm and fixed.
5.9
The price entered in the schedules shall be deemed to include full compliance with the
requirements of the Contract.
60 Clause 5 4 amended by variation CV2 2021/22, dated 1 April 2021
61 Inserted as per variation CV2 2021/22, dated 1 April 2021
62 Clauses 5 6 and 5 7 amended by variation CV2 2021/22, dated 1 April 2021
NHS Employers – VAR02 2021/22
106
DocuSign Envelope ID: 35B47601-E1CA-49EF-B405-3E0F8023715E
5.10
The price entered in the schedules shall include travel, subsistence costs including
overnight allowances and attendance at meetings as necessary in connection with the
Contract.63
The following shall apply to all Contract Years from Contract Year 12 onwards:64
5.11
The Contract Price will be adjusted each year in accordance with the following:
(a)
By the end of quarter 3 of each Contract Year, the Contractor shall submit a
pricing proposal to the Authority, on a mutually agreeable template, outlining
their request for funding for the following Contract Year and providing
justification for that request, for example, indexation.
(b)
The Authority may elect to reduce the Services required for the following
Contract Year. If the Authority does elect to reduce the Services then the
Contract Price will be reduced by a sum negotiated between the Parties for the
savings represented by the reduction in Services to be provided by the
Contractor. If, from the Variation Date, the Contract continues, in 12 month
increments, for a period up to three Contract Years, the Parties hereby
acknowledge and agree that the aggregate total of the price reduction shall not
be more than twenty percent (20%) of the Contract Price which was applicable
in Contract Year 12. This is shown in the following worked example which is for
illustrative purposes only:
Contract Year
Value
Reduction
2021/22
9,219,219.60
2022/23
8,481,682.03
8.0%
2023/24
7,887,964.29
7.0%
2024/25
7,493,566.08
5.0%
63 Clause 5 10 amended by variation CV2 2021/22, dated 1 April 2021
64 Clauses 5 11 to 5 15 inclusive and wording immediately prior inserted as per variation CV2 2021/22, dated 1 April 2021
NHS Employers – VAR02 2021/22
107
DocuSign Envelope ID: 35B47601-E1CA-49EF-B405-3E0F8023715E
If, from the Variation Date, the Contract continues in 12 month increments, for
a period up to three Contract Years, the Parties shall review and agree on the
process regarding any price reductions for future years of the Contract.
(c)
The Parties shall use their reasonable endeavours to agree the Contract Price
for the subsequent year by 15 March prior to the next anniversary of the
Commencement Date of the Contract. In the event that the Contract Price for
the subsequent year is not agreed by 15 March and the Authority accepts that
it is entirely responsible for the delay then the Contract Price for the first three
months of the subsequent year will be the same as for the first three months of
the preceding year. If the Authority does not accept responsibility and the
Parties are unable to reach agreement then the matter will be resolved under
the dispute resolution procedure at Clause 34.
(d)
The Contract Price shall be deemed to include full compliance with the
requirements of the Contract.
(e)
The Contract Price shall include travel, subsistence costs including overnight
allowances and attendance at meetings as necessary in connection with the
Contract.
(f)
Once agreed, the Contract Price is, unless otherwise expressly agreed between
the Parties, firm and fixed for the Contract Year.
5.12
Once the Parties have agreed the Contract Price for the relevant Contract Year in
accordance with Clause 5.11, the Parties agree to vary the Contract in accordance
with Clause 8 as soon as reasonably practicable in order to record the agreed Contract
Price in Section Fourteen – Contract Price.
5.13
In accordance with the variation procedure set out in Clause 8, the Authority may
exercise the right to vary the Contract Price during the subsequent Contract Year.
5.14
Section One – Scope of Work provides for the Authority and the Contractor to mutually
agree a reprioritisation of the Services to be provided under the Work Programmes.
The Contractor agrees to:
NHS Employers – VAR02 2021/22
108
DocuSign Envelope ID: 35B47601-E1CA-49EF-B405-3E0F8023715E
(a)
inform the Authority of any reduction in the cost for the provision of the Services
that arises as a result of the reprioritisation; and
(b)
agree with the Authority how any such cost savings are to be re-invested in the
Services under the Work Programmes.
5.15
In addition to Clause 5.14 above, the Parties hereby acknowledge that the annual
services agreed between the Authority and the Contractor may be varied within that
year. Where specific elements of the services cease in any one year, the Parties will
agree how any balance of the attributable costs included in the Contract Price for that
year are re-deployed on other elements of the services. The Work Programmes will be
amended to reflect that change.
6 VALUE ADDED TAX
6.1
The Authority shall pay to the Contractor, in addition to the Contract Price, a sum equal
to the Value Added Tax chargeable on the value of the goods and services provided
in accordance with the Contract.
6.2
Any invoice or other request for payment of monies due to the Contractor under the
Contract shall, if he is a taxable person, be in the same form and contain the same
information as if the same were a tax invoice for the purposes of Value Added Tax
1994 and the regulations made pursuant thereto.
6.3
The Contractor shall, if so requested by the Authority, furnish such information as may
reasonably be required by the Authority as to the amount of Value Added Tax
chargeable under the Contract and payable by the Authority to the Contractor in
addition to the Contract Price. Any overpayment by the Authority to the Contractor
shall be a sum of money recoverable from the Contractor under Clause 10 (Set Off.)
7.
PAYMENT
7.1
The Price and Contract Price with respect to each year of the Contract will be paid to
the Contractor by quarterly payments in arrears. Unless otherwise stated in the
NHS Employers – VAR02 2021/22
109
DocuSign Envelope ID: 35B47601-E1CA-49EF-B405-3E0F8023715E
Contract, the Contractor shall submit an invoice for Services to be completed to the
satisfaction of the Authority, quarterly in arrears and payment shall be within 30 days
of receipt of a properly prepared invoice.
7.2
Any increase in the annual Contract Price arising as a result of any Variation will be
paid as provided for under Clause 7.1 above. Any other additional payments arising as
a consequence of the Variation will be paid as a one off payment or phased over the
remaining payment period according to what is appropriate for the nature/delivery of
the work.65
7.3
All payments to be made by any Party under the Contract shall be made without
deduction or withholding of or in respect of any tax or duty, unless this is required by
law.
8.
VARIATION
8.1
The Contract shall not be varied unless such variation is made in writing by means of
a Variation to Contract Form as set out in Section Five – Variation to Contract Form
(“Variation Form”).66
8.2
However in the event of a Force Majeure incident, (as defined in Clause 38) the
Authority shall have the right to temporarily vary the Contract by oral instructions given
by the Authority's Representative, which shall be confirmed by the issue of a Variation
within 7 days.
8.3
The Contract can be amended at any time with the mutual consent of the Parties, with
due consideration to existing Services, and subject to the amendment being related in
nature to the Services being provided, and no such amendment shall vitiate the
Contract. Amendments to the Contract in accordance with this Clause 8.3 shall be
confirmed by the issue of a Variation Form.
65 Clause 7 2 amended by variation CV2 2021/22, dated 1 April 2021
66 Clause 8 1 amended by variation CV2 2021/22, dated 1 April 2021
NHS Employers – VAR02 2021/22
110
DocuSign Envelope ID: 35B47601-E1CA-49EF-B405-3E0F8023715E
8.4
Where the Contractor considers that additional unforeseen costs will be incurred as a
result of reprioritisation of a Work Programme or changes are agreed to a Work
Programme it may request a Variation provided that:67
(a)
the Contractor shall notify the Authority's Representative in writing of any
additional or changed requirement which it considers should give rise to a
Variation within seven days of such occurrence first becoming known to the
Contractor; and
(b)
any proposed Variation shall be fully supported by a quotation as detailed in
Clause 8.5.
8.5
The Contractor, within 14 days of being requested by the Authority's Representative or
where requesting a Variation pursuant to Clause 8.4, shall submit a quotation to the
Authority with respect to the Variation, such quotation to contain at least the following
information:
(a)
a description of the work together with the reason for the proposed Variation;
(b)
the price increase or reduction, as applicable, broken down to demonstrate the
elemental costs which constitute the affect on price;
(c)
details of the impact, if any, on other aspects of the Contract and services,
including but not limited to impact on overhead, timescales for delivery of
programmes or necessity to re-prioritise and Expert Staff.68
8.5 A The Authority shall have the right to require such additional and supporting information
as is necessary or reasonable in the context of the Variation in question.
8.6
The price for any Variation will be agreed between the Parties and will be calculated
having regard to the costing methodology as agreed by the Parties for that year. If the
Parties are unable to agree the price for any Variation and the Authority does not elect
to reject that Variation under Clause 8.7 then in accordance with paragraph 3.5.3 of
67 Clause 8 4 amended by variation CV2 2021/22, dated 1 April 2021
68 Clause 8 5(c) amended by variation CV2 2021/22, dated 1 April 2021
NHS Employers – VAR02 2021/22
111
DocuSign Envelope ID: 35B47601-E1CA-49EF-B405-3E0F8023715E
Section Nine - Governance, the Parties will escalate the matter to the Governance
Board. If the Parties are unable to reach an agreement at the Governance Board, then
the matter shall be resolved in accordance with the dispute resolution procedure at
Clause 34.
8.7
In the event that the Contractor contends that a proposed Variation is outstanding or
continues to be required, the Contractor shall update the information contained in their
quotation for the proposed variation every month and shall send the updated
information to the Authority. For the avoidance of doubt, this clause applies to Contract
Years 1 to 11 only.
8.8
The Authority shall approve or reject any Variation, such approval not to be unreasonably
withheld or delayed. In the event that the Contractor disputes any decision by the
Authority to reject a proposed Variation then in accordance with paragraph 3.5.3 of
Section Nine - Governance, the Parties will escalate the matter to the Governance
Board. If the Parties are unable to reach an agreement at the Governance Board, then
the matter shall be resolved in accordance with the dispute resolution procedure at
Clause 34.69
8.9
The Parties acknowledge that in the circumstances described in Clause 8.10 below in
order to ensure operational efficiency it may be desirable to expedite the processes
set out above. In such circumstances, or where the Parties otherwise agree, the Parties
shall use the process set out in Clause 8.1 to 8.8 above but with reduced timescales
as detailed in the Variation, or (if no such periods are specified) such that any period
of fourteen (14) days is reduced to ten (10) days and period of seven (7) days is
reduced to five (5) days.
8.10
If both Parties agree in relation to a proposed Variation that:
(a)
the total number of Variations in relation to which this expedited procedure has
been applied does not exceed two (2) within a quarter (or such higher number
as the Authority may determine from time to time in writing); and
69 Clauses 8 6 to 8 8 inclusive amended by variation CV2 2021/22, dated 1 April 2021
NHS Employers – VAR02 2021/22
112
DocuSign Envelope ID: 35B47601-E1CA-49EF-B405-3E0F8023715E
(b)
the proposed Variation is not significant (as determined by the Authority acting
reasonably),
then the Parties shall, unless agreed otherwise, use the timescales referred to in
Clause 8.9 in agreeing the Variation.
8.11
The parameters set out in Clause 8.9 may be revised from time to time by agreement
between the Parties in writing.70
9.
CONTRACTOR'S STATUS
9.1
In carrying out the Services under the Contract the Contractor shall be acting as
principal and not as the agent of the Authority. Accordingly:
(a)
the Contractor shall not (and shall procure that his agents and servants do not)
say or do anything that might lead any other person to believe that the
Contractor is acting as the agent of the Authority; and
(b)
nothing in the Contract shall impose any liability on the Authority in respect of
any liability incurred by the Contractor to any other person but this shall not be
taken to exclude or limit any liability of the Authority to the Contractor that may
arise by virtue of either a breach of the Contract or any negligence on the part
of the Authority, its staff or agents.
10. SET-OFF
10.1
Whenever under the Contract any sum of money shall be recoverable from or payable
by the Contractor, the same may be deducted from any sum then due, or which at any
time thereafter may become due, to the Contractor under the Contract.
10.2
Any overpayment by either Party, whether of the Contract Price or of VAT or otherwise,
shall be a sum of money recoverable by the Party who made the overpayment from
the Party in receipt of the overpayment.
70 Clauses 8 9 to 8 11 inclusive inserted as per variation CV2 2021/22, dated 1 April 2021
NHS Employers – VAR02 2021/22
113
DocuSign Envelope ID: 35B47601-E1CA-49EF-B405-3E0F8023715E
11.
CONTRACTORS PERSONNEL
11.1
The Contractor shall supply a sufficient number of competent personnel for the purpose
of executing the Services.
11.2
The Contractor shall provide the Authority with a list setting out (i) the names and
grades of the Contractor Personnel with particular skills and knowledge ("Expert Staff")
who are concerned with the Services or any part of them as at 1 April in any Contract
Year specifying the capacities in which they are so concerned; and (ii) the number of
support staff who are concerned with the Services or any part of them as at 1 April in
any Contract Year. The list of Expert Staff is annexed to this Contract at Section Six.
The list will be reviewed and amended by the Parties once each Contract Year at the
time when the Contract Price is determined in accordance with Clause 5, or at such
other times or intervals as may be agreed in writing between the Parties. Other than in
accordance with this annual review or where Expert Staff cease employment with the
Contractor in the Services whether by resignation, dismissal or other cause no changes
in Expert Staff shall be made without the prior approval of the Authority and all changes
to the list must be notified to the Authority in writing. Any disputes arising will be dealt
with in accordance with the dispute resolution procedure at Clause 34.
11.3
The persons whose employment transferred to the Contractor under the 2004
Contract, as amended, or transferred from the former Prescription Pricing Authority to
the former South West Strategic Health Authority on or after the Commencement Date
for the Additional Services referred to in that contract and identified by name in Section
Seven – Relevant Employees will remain members of a Relevant Pension Scheme or
retain the right to join for the life of the Contract, unless and until the Contractor
chooses to offer and the individual accepts alternative pension provision.71
12.
NOT USED72
71 Clauses 11 2 and 11 3 amended by variation CV2 2021/22, dated 1 April 2021
72 Clause 12 deleted in its entirety as per variation CV 2 2021/22, dated 1 April 2021
NHS Employers – VAR02 2021/22
114
DocuSign Envelope ID: 35B47601-E1CA-49EF-B405-3E0F8023715E
13.
CONFIDENTIALITY
13.1
Except to the extent set out in this Clause 13 or where disclosure is expressly permitted
elsewhere in the Contract, each Party shall:
(a)
treat the other Party’s Confidential Information as confidential and safeguard it
accordingly; and
(b)
not disclose the other Party’s Confidential Information to any other person
without the owners’ prior written consent.
13.2
Each Party shall procure that its employees and subcontractors and their employees
are subject to confidentiality obligations equivalent to those imposed on that Party by
this Clause 13.
13.3
Each Party shall procure that its employees and subcontractors and their employees
shall not use any of the Confidential Information other than for the purpose specified
under the Contract.
13.4
Each Party shall comply with their respective obligations under the Data Protection Act
2018, as they may be deemed to apply in performance of the Contract, while accepting
the over-riding legal or statutory obligations of another Party to disclose information to
a third party.73
13.5
The provisions of Clauses 13.1 to 13.4 shall apply during the continuance of the
Contract and after its termination howsoever arising without limitation of time.
13.6
The provisions of this Clause 13 shall not apply to any information of a confidential
nature which:
(a)
is in or enters the public domain other than by breach of the Contract; or
73 Clause 13 4 amended by variation CV2 2021/22, dated 1 April 2021
NHS Employers – VAR02 2021/22
115
DocuSign Envelope ID: 35B47601-E1CA-49EF-B405-3E0F8023715E
(b)
is obtained from a third party who is lawfully authorised to disclose such
information; or
(c)
is needed or required to be disclosed as part of carrying out the Services or by
law or governmental guidance including compliance with auditor's requirements
and 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
(d)
the Authority discloses to any Crown Body or other contracting authority (as
defined by Regulation 3 of the Public Contracts Regulations 2015). Those
Crown Bodies and contracting authorities being entitled to further disclose the
Confidential Information to other Crown Bodies or contracting authorities on the
basis that the information is confidential and is not to be disclosed to a third
party which is not part of a Crown body or contracting authority.74
13.7
Nothing in this Clause 13 shall prevent either Party from using any techniques, ideas
or know how gained during the performance of the Contract in the course of its normal
business to the extent that its use does not result in disclosure of the other Party’s
Confidential Information or an infringement of Intellectual Property Rights.
14.
INTELLECTUAL PROPERTY RIGHTS
14.1
It shall be a Condition of the Contract that, except to the extent that the Services
incorporate designs furnished by the Authority, the Services will not infringe any
Intellectual Property Rights of any third party.
14.2
Where there are prior rights or rights of third parties in any material, the Contractor
shall obtain Approval before using the material and this Approval shall include the right
of the Authority to use, copy, modify, adapt or enhance the material.
14.3
The Contractor shall indemnify the Authority and the Crown against all Liabilities which
the Authority or the Crown may suffer or incur as a result of or in connection with any
breach of this Clause 14 by the Contractor.
74 Clause 13 6 (d) amended by variation CV2 2021/22, dated 1 April 2021
NHS Employers – VAR02 2021/22
116
DocuSign Envelope ID: 35B47601-E1CA-49EF-B405-3E0F8023715E
14.4
The Authority shall indemnify the Contractor against all Liabilities which the Contractor
may suffer or incur as a result of or in connection with any breach of this Clause 14 by
the Authority.
14.5
All Intellectual Property Rights (including ownership and copyright) in any
specifications, instructions, plans, drawings, patents, patterns, models, designs,
websites, urls or other material furnished to or made available to the Contractor by the
Authority shall remain the property of the Authority.
14.6
All Intellectual Property Rights (including ownership and copyright) in any Specially
Written Software, specifications, instructions, plans, drawings, patents, patterns,
models, designs, guidelines, reports, databases or other material prepared by or for
the Contractor for use, or intended use, in relation to the performance of the Contract
shall belong to the Authority. The Contractor shall not and shall ensure that the
Contractor's employees, servants, agents, suppliers and sub-contractors shall not
(except when necessary for the implementation of the Contract), without prior written
consent of the Authority, such consent not to be unreasonably withheld or delayed,
use or disclose to any third party any such intellectual property and Intellectual Property
Rights, or any other information (whether or not relevant to the Contract) which the
Contractor may obtain in performing the Contract except information which is in the
public domain.
14.7
The provisions of this Clause 14 shall apply during the continuance of the Contract and
indefinitely after its expiry or termination. The Contractor shall ensure that sub
contractors and their employees adhere to the provisions of this Clause 14.
14.8
During the existence of the Contract the Authority licences all Intellectual Property
Rights to the Contractor free of charge and on an exclusive, basis to such extent as is
necessary to enable the Contractor to supply the Services.
14.9
The Authority will give due consideration to any request by the Contractor for an
exclusive licence to use any Intellectual Property Rights referred to in this Clause 14
which are owned by the Authority.
NHS Employers – VAR02 2021/22
117
DocuSign Envelope ID: 35B47601-E1CA-49EF-B405-3E0F8023715E
15.
PUBLICITY AND GOOD FAITH/OUTSIDE ACTIVITIES
15.1
The Contractor shall act in good faith towards the Authority and shall not bring the
Authority into disrepute and shall take reasonable steps to procure that none of its
employees, agents or servants shall bring the Authority into disrepute.
15.2
The Contractor shall not make any public statement relating to the details of the
Contract which shall generally be regarded as confidential or with respect to any policy
or proposal of the Authority without the Authority’s prior Approval, such approval not to
be unreasonably withheld or delayed.
15.3
The Contractor shall not in relation to the Contract refer to the Authority in any
advertisement or other publicity without the prior approval of the Authority, such
approval not to be unreasonably withheld or delayed.
15A.GOVERNANCE
The following clauses 15A.1 to 15A.3 shall apply to Contract Years 1 to 11:75
15A.1 The Contractor warrants that at the date of the Contract, to the best of the Contractor’s
knowledge and belief, the PKF Report and Counsel’s Opinion have been prepared with
the Contractor’s full co-operation and to the best of the Contractor’s knowledge and
belief no relevant information in any format has been withheld from either PKF or
Counsel. To the extent that the Contractor receives, discovers or otherwise becomes
aware of further information in relation to the subject matter of the PKF Report which
is material to the PKF Report or Counsel’s Opinion and which, as far as the Contractor
is aware, is additional to or differs from that information provided to or obtained by PKF
or provided to Counsel, the Contractor will bring this information to the attention of the
Authority as soon as reasonably practicable.
15A.2 The Contractor accepts the findings of the PKF Report. To this end, the Contractor
shall (at its own cost):
75 Wording inserted as per variation CV2 2021/22, dated 1 April 2021
NHS Employers – VAR02 2021/22
118
DocuSign Envelope ID: 35B47601-E1CA-49EF-B405-3E0F8023715E
(a)
take all reasonable steps to address the matters raised in the PKF Report as
soon as reasonably practicable;
(b)
undertake those actions set out in the Governance Plan; and
(c)
provide to the Authority a written report prepared by a firm of independent
auditors at the end of the month falling 5 months after the end of the month in
which the Contract is signed and at the end of the month falling 11 months after
the end of the month in which the Contract is signed, reporting on whether the
requirements of this Clause 15A.2 have been complied with.
15A.3 In consideration of the Authority entering into the Contract, the Guarantor, at the
request of the Contractor, guarantees to the Authority the performance and
observance by the Contractor of its obligations under Clause 15.A provided always
that the liability of the Guarantor pursuant to this clause 15A.3 may not in any
circumstances be greater than that of the Contractor in respect of clause 15A.2.
The following shall apply to all Contract Years from Contract Year 12 onwards:76
15A.4 Section Nine – Governance describes the governance structure and the procedures
that will be used to manage the relationship between the Authority and the Contractor
under the Contract.77
16.
RECORDS, REPORTS, AUDIT AND OPEN BOOK DATA78
16.1
The Parties shall comply with the provisions of Section Two – Financial Reports and
Audit Rights in relation to the maintenance of Open Book Data and the exercise of the
audit rights by the Authority or any Audit Agents.
17.
INDEMNITY AND INSURANCE
17.1
The Contractor shall indemnify the Authority fully against all Liabilities in respect of any
death or personal injury, or loss of or damage to property, which are caused directly or
76 Wording inserted as per variation CV2 2021/22, dated 1 April 2021
77 Clause 15A 4 inserted as per variation CV2 2021/22, dated 1 April 2021
78 Clause 16 amended by variation CV2 2021/22, dated 1 April 2021
NHS Employers – VAR02 2021/22
119
DocuSign Envelope ID: 35B47601-E1CA-49EF-B405-3E0F8023715E
indirectly by any act or omission of the Contractor in the supply of the Services or the
performance or non-performance by the Contractor of its obligations under the
Contract. This Clause 17.1 shall not apply to the extent the Contractor is able to
demonstrate that such death or personal injury, or loss or damage was not caused or
contributed to by its negligence or default, or the negligence or default of the Contractor
Personnel, or by any circumstances within its or their control.
17.2
The Authority shall indemnify the Contractor fully against all Liabilities in respect of any
death or personal injury, or loss of or damage to property, which are caused directly or
indirectly by any act or omission of the Authority in the performance or non-
performance by the Authority of its obligations under the Contract. This Clause 17.2
shall not apply to the extent the Authority is able to demonstrate that such death or
personal injury, or loss or damage was not caused or contributed to by its negligence
or default, or the negligence or default of its staff or sub-contractors, or by any
circumstances within its or their control.79
17.3
The Contractor shall effect and maintain with a reputable insurance company a policy
or policies of insurance providing an adequate level of cover in respect of all risks which
may be incurred by the Contractor, arising out of the Contractor's performance of the
Contract, in respect of death or personal injury, or loss of or damage to property. Such
policies shall include cover in respect of any financial loss arising from any advice given
or omitted to be given by the Contractor.
17.4
The Contractor shall hold employer's liability insurance in respect of the Contractor
Personnel in accordance with any legal requirement for the time being in force.80
17.5
The Contractor shall produce to the Authority's Representative, on request, copies of
all insurance policies referred to in this Clause 17.5 and/ or other evidence confirming
the existence and extent of the cover given by those policies, together with receipts or
other evidence of payment of the latest premiums due under those policies.
17.6
The terms of any insurance or the amount of cover shall not relieve the Contractor of
any liabilities under the Contract. It shall be the responsibility of the Contractor to
79 Clauses 17 1 and 17 2 amended by variation CV2 2021/22, dated 1 April 2021
80 Clause 17 4 amended by variation CV2 2021/22, dated 1 April 2021
NHS Employers – VAR02 2021/22
120
DocuSign Envelope ID: 35B47601-E1CA-49EF-B405-3E0F8023715E
determine the amount of insurance cover that will be adequate to enable the Contractor
to satisfy any liability referred to in Clause 17.3.
17.7 The Authority shall not be liable to the Contractor or any other person pursuant to the
Contract for any loss of profit or any other consequential or indirect loss.
18.
PREVENTION OF FRAUD AND BRIBERY81
18.1
The Contractor represents and warrants that neither it, nor to the best of its knowledge
any Contractor Personnel, have at any time prior to the Variation Date:
(a)
committed a Prohibited Act or been formally notified that it is subject to an
investigation or prosecution which relates to an alleged Prohibited Act; and/or
(b)
been listed by any government department or agency as being debarred,
suspended, proposed for suspension or debarment, or otherwise ineligible for
participation in government procurement programmes or contracts on the
grounds of a Prohibited Act.
18.2
The Contractor shall not during the term of the Contract:
(a)
commit a Prohibited Act; and/or
(b)
do or suffer anything to be done which would cause the Authority or any of the
Authority’s employees, consultants, contractors, sub-contractors or agents to
contravene any of the Relevant Requirements or otherwise incur any liability in
relation to the Relevant Requirements.
18.3
The Contractor shall during the term of the Contract:
(a)
establish, maintain and enforce, and require that its sub-contractors establish,
maintain and enforce, policies and procedures which are adequate to ensure
81 Clause 18 amended by variation CV2 2021/22, dated 1 April 2021
NHS Employers – VAR02 2021/22
121
DocuSign Envelope ID: 35B47601-E1CA-49EF-B405-3E0F8023715E
compliance with the Relevant Requirements and prevent the occurrence of a
Prohibited Act;
(b)
have in place reasonable prevention measures (as defined in sections 45(3)
and 46(4) of the Criminal Finance Act 2017) to ensure that Associated Persons
of the Contractor do not commit tax evasion facilitation offences as defined
under that Act;
(c)
keep appropriate records of its compliance with its obligations under Clause
18.3(a) and make such records available to the Authority on request; and
(d)
take account of any guidance about preventing facilitation of tax evasion
offences which may be published and updated in accordance with section 47
of the Criminal Finances Act 2017.
18.4
The Contractor shall immediately notify the Authority in writing if it becomes aware of
any breach of Clause 18.1 and/or 18.2, or has reason to believe that it has or any of
the Contractor Personnel have:
(a)
been subject to an investigation or prosecution which relates to an alleged
Prohibited Act;
(b)
been listed by any government department or agency as being debarred,
suspended, proposed for suspension or debarment, or otherwise ineligible for
participation in government procurement programmes or contracts on the
grounds of a Prohibited Act; and/or
(c)
received a request or demand for any undue financial or other advantage of
any kind in connection with the performance of the Contract or otherwise
suspects that any person or Party directly or indirectly connected with the
Contract has committed or attempted to commit a Prohibited Act.
18.5
If the Contractor makes a notification to the Authority pursuant to Clause 18.4, the
Contractor shall respond promptly to the Authority's enquiries, co-operate with any
NHS Employers – VAR02 2021/22
122
DocuSign Envelope ID: 35B47601-E1CA-49EF-B405-3E0F8023715E
investigation, and allow the Authority to audit any books, records and/or any other
relevant documentation in accordance with Clause 16.
18.6
If the Contractor is in default under Clauses 18.1 and/or 18.2, the Authority may by
notice:
(a)
require the Contractor to remove from performance of the Contract any
Contractor Personnel whose acts or omissions have caused the default; or
immediately terminate the Contract.
18.7
Any notice served by the Authority under Clause 18.6 shall specify the nature of the
Prohibited Act, the identity of the party who the Authority believes has committed the
Prohibited Act and the action that the Authority has elected to take (including, where
relevant, the date on which the Contract shall terminate).
19.
DISCRIMINATION AND HUMAN RIGHTS
19.1
The Contractor and the Authority shall will not unlawfully discriminate either directly or
indirectly within the meaning and scope of any law, enactment, order, or regulation
relating to discrimination (whether in gender, trans gender, race, age, religion,
matrimonial status, colour, ethnic or national origin) in employment and procurement,.
19.2
The Parties shall (and shall use their reasonable endeavours to procure that their staff
shall) at all times comply with the provisions of the Human Rights Act 1998 in
performance of the Contract.
19.3
The Parties shall take all reasonable steps to secure the observance of the provisions
contained in Clauses 19.1 and 19.2 above by all their servants, employees or agents
and all sub-contractors employed in the execution of the Contract.
19.4
The Parties shall undertake or refrain from undertaking, such acts as the other Party
requests so as to enable the Parties to comply with their obligations under the Human
Rights Act 1998.
NHS Employers – VAR02 2021/22
123
DocuSign Envelope ID: 35B47601-E1CA-49EF-B405-3E0F8023715E
20.
HEALTH AND SAFETY
20.1
The Contractor shall take all measures necessary to comply with the requirements of
the Health and Safety at Work etc. Act 1974 and any other Acts, orders, regulations
and Codes of Practice relating to health and safety, which may apply to the Contractor
Personnel in the performance of the Services.82
20.2
The Contractor shall promptly notify the Authority of any health and safety hazards
which may arise in connection with the performance of the Services.
20.3
Whilst on the Authority's Premises, the Contractor shall comply with any health and
safety measures implemented by the Authority in respect of the Contractor Personnel
working on those Premises, the Contractor having previously been informed by the
Authority of such health and safety measures and any applicable health and safety
rules and regulations.83
20.4
The Contractor shall notify the Authority's Representative immediately in the event of
any incident occurring in the performance of the Services on the Authority's Premises
where that incident causes any personal injury or any damage to property which could
give rise to personal injury.
21.
TRANSFER, SUB-CONTRACTING AND CARRYING ON BUSINESS
21.1
Subject to the provisions of Clauses 21.2 and 21.4 below, the Contractor shall not
assign, sub-contract or in any other way dispose of the Contract or any part of it without
the prior approval of the Authority.
21.2
The Parties hereby acknowledge and agree that the Contractor may engage sub-
contractors in its performance of the Services or carrying on its business generally
without the prior approval of the Authority, save in respect of:
(a)
any aspect of the Services that would be undertaken by the Expert Staff; and
82 Clause 20 1 amended by variation CV2 2021/22, dated 1 April 2021
83 Clause 20 3 amended by variation CV2 2021/22, dated 1 April 2021
NHS Employers – VAR02 2021/22
124
DocuSign Envelope ID: 35B47601-E1CA-49EF-B405-3E0F8023715E
(b)
the entry into of any contract that would result in payment to any party including
a sub-contractor of a sum in excess of £1,000,000; and
(c)
the entry into of any contract for a period in excess of 2 years,
which shall require the approval of the Authority such approval not to be unreasonably
withheld or delayed.
21.3
The Contractor shall ensure that all sub-contracts (which in this Clause includes any
contract in the Contractor’s supply chain made wholly or substantially for the purpose
of performing or contributing to the performance of the whole or any part of the
Contract) contain provisions:
(a)
giving the Contractor a right to terminate the sub-contract if the sub-contractor
fails to comply in the performance of the sub-contract with legal obligations in
the fields of environmental, social or labour law;
(b)
requiring the Contractor or other party receiving goods or services under the
contract to consider and verify invoices under that contract in a timely fashion;
(c)
that if the Contractor or other party fails to consider and verify an invoice in
accordance with Clause 21.3(b), the invoice shall be regarded as valid and
undisputed for the purpose of Clause 21.3(d) after a reasonable time has
passed;
(d)
requiring the Contractor or other party to pay any undisputed sums which are
due from it to the sub-contractor within a specified period not exceeding thirty
(30) days of verifying that the invoice is valid and undisputed;
(e)
giving the Authority a right to publish the Contractor’s compliance with its
obligation to pay undisputed invoices within the specified payment period; and
(f)
requiring the sub-contractor to include a clause to the same effect as this
Clause 21.3 in any contracts it enters into wholly or substantially for the purpose
NHS Employers – VAR02 2021/22
125
DocuSign Envelope ID: 35B47601-E1CA-49EF-B405-3E0F8023715E
of performing or contributing to the performance of the whole or any part of the
Contract.84
21.4
The Parties hereby acknowledge and agree that the Contractor may:
(a)
sub-contract or otherwise delegate any or all of its duties or obligations; and/or
(b)
assign or transfer any or all of its rights; and/or
(c)
transfer any or all of the burdens on it,
under the Contract only to a wholly owned member of the NHS Confederation without
the prior approval of the Authority. The Authority hereby acknowledges and agrees
that it will enter into such deeds of novation, on such terms as the Contractor shall
require, as are necessary to give effect to the Authority’s rights in connection with this
Clause 21.4.
21.5
Subject to prior written consent of the Contractor (such consent not to be unreasonably
withheld or delayed), the Authority shall be entitled to assign, novate or otherwise
dispose of any or all of its rights or obligations under the Contract to any contracting
authority as defined in Regulation 2 (1) of the Public Contracts Regulations 2015 or
any other body established by the Crown or under statute in order substantially to
perform any of the functions that had previously been performed by the Authority; or
any private sector body which substantially performs the functions of the Authority.
Provided that such assignment, novation or other disposal shall not materially increase
the burden of the Contractor's obligations under the Contract.85
21.6
The Contractor shall be responsible for the acts and omissions of its sub-contractors
as though they were its own.
21.7
The Contractor must use reasonable endeavours to comply with the provisions of
Section Twelve - Corporate Social Responsibility.86
84 Clause 21 3 amended by variation CV2 2021/22, dated 1 April 2021
85 Clause 21 5 amended by variation CV2 2021/22, dated 1 April 2021
86 Clause 21 7 inserted as per variation CV2 2021/22, dated 1 April 2021
NHS Employers – VAR02 2021/22
126
DocuSign Envelope ID: 35B47601-E1CA-49EF-B405-3E0F8023715E
22.
SERVICE OF NOTICES AND COMMUNICATIONS
22.1
Except as otherwise expressly provided within the Contract, no notice or other
communication from one Party to the other shall have any validity under the Contract
unless made in writing by or on behalf of the Party concerned.
22.2
Any notice or other communication which is to be given by a Party to another Party
shall be given by letter, or by facsimile transmission or electronic mail confirmed by
letter. Such letters shall be delivered by hand or sent prepaid by first class post,
addressed to the other Party as referred to in Section Four - Administrative Instructions.
If the other Party does not acknowledge receipt of any such letter, facsimile
transmission or item of electronic mail, and the relevant letter is not returned as
undelivered, the notice or communication shall be deemed to have been given three
(3) Working Days after the day on which the letter was posted.87
23.
SEVERABILITY
23.1
If any provision of the Contract is held invalid, illegal or unenforceable for any reason
by any court of competent jurisdiction, such provision shall be severed and the
remainder of the provisions of the Contract shall continue in full force and effect as if
the Contract had been executed with the invalid, illegal or unenforceable provision
eliminated. In the event of a holding of invalidity so fundamental as to prevent the
accomplishment of the purpose of the Contract, the Parties shall immediately
commence negotiations in good faith to remedy the invalidity.
24.
WAIVER
24.1
The failure of either Party to exercise any right or remedy shall not constitute a waiver
of that right or remedy.
24.2
No waiver shall be effective unless it is communicated to the other Party in writing.
24.3
A waiver of any right or remedy arising from a breach of contract shall not constitute a
waiver of any right or remedy arising from any other breach of the Contract.
87 Clause 22 2 amended by variation CV2 2021/22, dated 1 April 2021
NHS Employers – VAR02 2021/22
127
DocuSign Envelope ID: 35B47601-E1CA-49EF-B405-3E0F8023715E
25.
TERMINATION ON CHANGE OF CONTROL AND INSOLVENCY
25.1
The Authority may terminate the Contract by written notice having immediate effect:
(a)
where the Contractor undergoes a change of control, within the meaning of
section 1124 of the Corporation Tax Act 2010, impacting adversely and
materially on the performance of the Contract; or
(b)
in the event of an Insolvency Event occurring in respect of the Contractor.88
25.2
The Authority may only exercise its right under Clause 25.1(a) within 6 months after a
change of control occurs and shall not be permitted to do so where it has agreed in
advance to the particular change of control that occurs. The Contractor shall notify the
Authority immediately when any change of control occurs.
26.
TERMINATION ON DEFAULT
26.1
The Authority may terminate the Contract, or terminate the provision of any part of the
Services, by giving written notice to the Contractor with immediate effect if the
Contractor is in default of any material obligation under the Contract and:
(a)
the Contractor has not remedied the default to the satisfaction of the Authority
within thirty (30) days, or such other reasonable period as may be specified
by the Authority, after service of a written notice specifying the default and
requiring it to be remedied; or
(b)
the default is not capable of remedy; or
(c)
the default is a fundamental breach of the Contract.89
26.2
The Authority shall at all times act reasonably and in good faith with respect to its rights
to terminate the Contract or any part of the Services under Clause 26.1, and prior to
88 Clause 25 1(b) amended by variation CV2 2021/22, dated 1 April 2021
89 Clause 26 1 amended by variation CV2 2021/22, dated 1 April 2021
NHS Employers – VAR02 2021/22
128
DocuSign Envelope ID: 35B47601-E1CA-49EF-B405-3E0F8023715E
any termination shall consult with the Contractor with a view to agreeing reasonable
steps to remedy any such default.
27.
GENERAL TERMINATION
27.1
The Authority shall have the right to terminate the Contract, or to terminate the
provision of any part of the Services, at any time by giving 12 months' written notice to
the Contractor. For the avoidance of doubt the notice will take effect from the end of
the quarter of the year in which it is given. The Authority may extend the period of
notice at any time before it expires, subject to agreement between the Parties of the
level of Services to be provided by the Contractor during the period of extension.
28.
CONSEQUENCES OF TERMINATION
28.1
If the Authority terminates the Contract under Clause 26, or terminates the provision of
any part of the Services under that Clause, and then makes other arrangements for
the provision of the Services, the Authority shall be entitled to recover from the
Contractor the reasonable and proper costs incurred by the Authority in making those
other arrangements and any reasonable additional expenditure incurred by the
Authority throughout the remainder of the Contract Period. The Authority shall take all
reasonable steps to mitigate such costs. Where the Contract is terminated under
Clause 26, no further payments shall be payable by the Authority until the Authority
has established the final cost of making those other arrangements.
28.2
If the Authority terminates the Contract, or terminates the provision of any part of the
Services, under Clause 26, then other than where otherwise provided in this Clause
28 the Authority shall reimburse the Contractor in respect of loss, not including loss of
profit, actually and reasonably incurred by the Contractor as a result of the termination,
provided that the Contractor:-
(a)
takes immediate and reasonable steps to reduce the potential loss in a manner
calculated to minimise the potential cost to the Authority, consistent with the
obligation to provide the Services during the period of notice, where appropriate
to terminate all contracts with subcontractors on the best available terms, to
NHS Employers – VAR02 2021/22
129
DocuSign Envelope ID: 35B47601-E1CA-49EF-B405-3E0F8023715E
cancel all capital and recurring cost commitments, e.g. lease of premises, and
to reduce equipment and labour costs as appropriate; and
(b)
has in relation to the Services provided under a Variation at all times used its
reasonable endeavours to deliver them in a manner which was calculated to
minimise the Authority's potential liability under this Clause 28.2
The obligation to make reimbursement pursuant to this Clause 28.2 does not apply to
any loss or expense relating to or arising out of the termination of the employment of
any employee of the Contractor.
28.3
For the avoidance of doubt, if the Authority terminates the Contract or terminates the
provision of any part of the Services under Clause 27, the Authority shall reimburse
the Contractor for any loss incurred by the Contractor with respect to the Premises,
save always that prior to entering into any legally binding agreements the Contractor
will discuss and agree with the Authority any potential changes to any contract entered
into by the Contractor with respect to the Premises where such changes would
potentially increase the cost to the Authority under this Clause 28.
28.4
For the purposes of Clause 28.2, the Contractor shall submit to the Authority's
Representative, within 20 working days after service of the notice, a fully itemised and
costed list, with supporting evidence, of all losses incurred b) the Contractor as a result
of the termination of the Contract, or the termination of any part of the Services, to be
updated only in respect of ongoing costs each week until the Contract is terminated.
28.5
The Authority shall not be liable under Clause 28.2 to pay any sum which exceeds the
total sum that would have been payable to the Contractor for the year in question if the
provision of the Services had been completed in accordance with the Contract.
28.6
On expiry, or if the Authority terminates the contract under Clause 25, 26 or 27, or
reduces of any part of the Services in accordance with Clause 5 or upon the conclusion
of the services specified in each Work Programme, it is the intention that in respect of
any Relevant Employee the Transfer of Undertakings (Protection of Employment)
Regulations (“the Regulations”) shall apply in respect of the provision thereafter of any
service equivalent to any of the Services but the position shall be determined in
NHS Employers – VAR02 2021/22
130
DocuSign Envelope ID: 35B47601-E1CA-49EF-B405-3E0F8023715E
accordance with the law and/or Government policy at the date of expiry or termination
as the case may be and this Clause 28 is without prejudice to such determination.
28.7
If the Regulations do not apply to any Relevant Employee on the expiry or termination
of the Contract or upon the conclusion of any services specified in the Work
Programmes or when the Authority reduces the Services in accordance with Clause 5
the Authority shall indemnify the Contractor for any payments to or in respect of any
Relevant Employee which are statutory or contractual redundancy payments or paid
by reason of redundancy under the Relevant Pension Scheme (including for the
avoidance of doubt but without limitation any additional contributions payable by the
Contractor to the Secretary of State under Regulation D2(3) of the National Health
Service Pension Scheme Regulations 1995 or Regulation 2.C.6 of the National Health
Service Pensions Scheme Regulations 2008) ("the Contingent Liabilities") subject to
the following Clauses:
(a)
that this indemnity does not extend to any part of a redundancy payment which
is the consequence of an unusual or exceptional increase in salary for a
Relevant Employee or Relevant Employees made within the 12 months
preceding the expiry or termination date or date of any reduction in the
Services, or except where such variation is made in accordance with a statutory
requirement or is necessary to give effect to any national agreements under
which the Contractor is obliged to make such variation, is the consequence of
any variation in the contractual redundancy terms applicable to any Relevant
Employee or Relevant Employees made by the Contractor without the prior
written consent of the Authority;
(b)
that the indemnity does not extend to any redundancy payment made to a
Relevant Employee in respect of whom suitable alternative employment (as
defined in accordance with his contract of employment) was available to be
offered (even if there were other Relevant Employees for whom this
employment would also be suitable) unless that Relevant Employee had been
given the opportunity to apply for such suitable alternative employment;
(c)
that in the case of Relevant Employees who are assigned or allocated to the
provision of the Services at the date of the expiry or termination of the Contract
NHS Employers – VAR02 2021/22
131
DocuSign Envelope ID: 35B47601-E1CA-49EF-B405-3E0F8023715E
or of any Work Programme the indemnity shall not extend to those Relevant
Employees who have any time prior to that date been assigned or allocated to
work by the Contractor other than in connection with a Work Programme
comprised within the Services;
(d)
the total maximum amount payable under this indemnity and any other
indemnity to the Contractor expressed to be subject to this clause, shall not,
collectively, exceed £3million (three million pounds) in relation to Relevant
Employees or SHA Employees engaged in the provision of the Services
provided that the Authority agrees to review this figure if there are any unusual
or unforeseen circumstances which increases the Contingent Liabilities beyond
the overall level expected when the maximum amount was agreed;90
(e)
the Contractor will take reasonable steps to notify the Authority of any potential
liabilities and will fully co-operate with the Authority and will comply with any
requests or directions given by the Authority;
(f)
the Contractor shall take all reasonable steps to offer suitable alternative
employment (as defined in accordance with his contract of employment) to
each Relevant Employee prior to the termination of his or her employment by
reason of redundancy and shall comply with best employment practice as well
as all contractual, statutory and common law obligations relating to such
termination of employment (for the avoidance of doubt, the indemnity in this
Clause 28.7 shall not cover compensation for unfair dismissal and/or
discrimination on any ground); and
(g)
the Authority shall have the right to retain control or take over conduct from the
Contractor of any defence, dispute, compromise or appeal arising out of or in
respect of any potential liabilities, and determine matters at its sole discretion,
and the Authority agrees that it shall indemnify the Contractor in respect of
reasonable legal fees incurred by the Contractor in complying with the
Authority's decision to conduct any defence, dispute, compromise or appeal
arising out of or in respect of any potential liabilities.
90 Amended by Variation No 5-2013/14, dated 26 March 2013
NHS Employers – VAR02 2021/22
132
DocuSign Envelope ID: 35B47601-E1CA-49EF-B405-3E0F8023715E
28.8
The provisions of Clause 28.7 also apply if the Regulations do apply on the expiry or
earlier termination of the Contract or of any Work Programme or on any reduction of
Services, but only in respect of Contingent Liabilities for any Relevant Employee who
has a claim in accordance with Regulation 4(9) or 4(11).91
28.9
Subject to the provisions of this Clause 28 and for the avoidance of doubt, the Authority
hereby confirms and warrants that there shall be no costs whatsoever accruing to the
Contractor in connection with the rights under the Relevant Pension Scheme of any
persons employed by the Contractor in relation to the Services (or any company in the
same group of companies as the Contractor) in connection with their retirement for any
reason, including redundancy, of any such person.
28.10 The Contractor undertakes that:
(a)
upon the Contractor being served with notice to terminate the Contract by the
Authority pursuant to Clauses 25, 26 or 27 of the Contract; and
(b)
for the duration of the Contract thereafter
they shall not without the prior written consent of the Authority (such consent not to be
unreasonably withheld or delayed) do any of the matters set out in this Clause 28.92
28.11 The matters which the Contractor shall not do without the Authority's written consent
are:
(a)
vary the rates of remuneration or hours to be worked by or the terms and
conditions of employment of any person engaged or employed to provide the
Services (save where such amendments arise in the ordinary course of
business as a result of annual pay settlements and are made in good faith or
where such amendments are made in accordance with a statutory requirement
or are necessary to give effect to any national agreements under which the
Contractor is obliged to change the terms and conditions of such person); or93
91 Clauses 28 6 to 28 8 inclusive amended by variation CV2 2021/22, dated 1 April 2021
92 Clause 28 10 amended by variation CV2 2021/22, dated 1 April 2021
93 Clause 28 11(a) amended by variation CV2 2021/22, dated 1 April 2021
NHS Employers – VAR02 2021/22
133
DocuSign Envelope ID: 35B47601-E1CA-49EF-B405-3E0F8023715E
(b)
increase or decrease the number of persons that perform the Services under
the Contract; or
(c)
deploy re-deploy or replace (unless the individual has resigned or been fairly
dismissed for gross misconduct or conduct or such a kind to warrant dismissal
and the replacement is employed on materially the same terms and conditions
as the employee being replaced) any person engaged or employed to provide
the Services or terminate the employment of any such person;
and the Contractor shall not unnecessarily take any steps to oblige the Authority
or any future transferee to do so after the Contractor ceases to employ any
such person.
29.
TRANSITION OF WORK
29.1
This Clause 29 shall apply on expiration or termination of the Contract. Under
arrangements notified to the Contractor by the Authority (“Handover Process”) the
Contractor shall provide such assistance as the Authority may reasonably require to
affect a full and orderly transfer of the Services to the Authority or to a third party or
new provider or providers of all or any of the Services, as nominated by the Authority.
Such assistance and co-operation shall extend to arrangements made in relation to
persons employed to any extent in the provision of the Services and to premises and
equipment used to any extent in the provision of Services.
29.2
The Contractor shall be reimbursed for any reasonable costs incurred in accordance
with any steps taken with the prior approval of the Authority in compliance with Clause
29.1.
29.3
The Contractor shall at the Authority’s request:
(a)
assign any or all software licences or other licences or agreements that are
used exclusively or primarily in the provision of the Services; and
(b)
license or sub-contract all other software licences or other licences or
agreements that are used in the provision of the Services to the Recipient,
NHS Employers – VAR02 2021/22
134
DocuSign Envelope ID: 35B47601-E1CA-49EF-B405-3E0F8023715E
where this is permitted by the terms of the licence or agreement. Where the
prior consent of a third Party is required to transfer the benefit of such licence
or agreement to the Recipient, the Contractor shall use its reasonable
endeavours to obtain such consents.
29.4
At expiration or termination of the Contract the Contractor shall handover all Issued
Property how so ever generated under the Contract, to the Authority or person or
persons designated by the Authority, provided that the Contractor is able to do so and
is not prevented by law from doing so.
29.5
The Contractor shall be responsible for ensuring that any computerised filing,
recording, documenting and planning data utilised under the Contract is transferred or
licensed free of any charges to the Authority or person or persons designated by the
Authority to facilitate a smooth hand-over of work at expiry or termination of the
Contract.
29.6
The Contractor shall in connection with the expiration or other termination of the
Contract or any reduction in the Services on request provide full details of all
employees who are engaged to any extent in the provision of the Services or the
relevant part of them to the Authority and to any other contractor or contractors who
may become providers of all or any part of the Services. The Contractor warrants that
such details shall be accurate and complete and should be provided promptly when
requested. These details shall include:
(a)
Copies of Employment Contracts including offer letters, standard terms,
company rules and disciplinary procedures and details of any collective
agreements, written or unwritten, with employees;
(b)
details of staff benefit schemes (if any): including pensions, employee share
schemes, company cars, bonus/profit sharing, insurance schemes, etc;
(c)
details of all recognised unions and/or staff associations;
(d)
copies of all redundancy/job security agreements with Unions;
NHS Employers – VAR02 2021/22
135
DocuSign Envelope ID: 35B47601-E1CA-49EF-B405-3E0F8023715E
(e)
name;
(f)
age;
(g)
sex;
(h)
length of employment (start and finish dates, where applicable);
(i)
contracted basic hours of work;
(j)
contracted overtime;
(k)
rate of pay (broken down by gross pay and allowances / enhancements
included);
(l)
holiday entitlement and notice entitlement;
(m)
present work location;
(n)
whether employment is permanent or temporary;
(o)
whether on maternity leave or on long term sick leave;
(p)
details of current Employment Tribunal cases brought by or relating to or
litigation by or against such employees;
(q)
details of any claims in respect of allegations of unlawful discrimination.
30.
TRANSFER OF UNDERTAKINGS AND PROTECTION OF EMPLOYMENT
30.1
The Parties recognise that the Transfer of Undertakings (Protection of Employment)
Regulations 1981 (“the 1981 Regulations”) applied in respect of the award of the
contract dated 27 October 2004 and that for the purposes of those Regulations the
undertaking concerned, or any relevant part of the undertaking, transferred to the
NHS Employers – VAR02 2021/22
136
DocuSign Envelope ID: 35B47601-E1CA-49EF-B405-3E0F8023715E
Contractor on the Commencement Date of that Contract (“the Relevant
Commencement Date”).
30.2
The Contractor complied with the requirements of the 1981 Regulations in respect of
the persons who were employed in the undertaking, or a relevant part of the
undertaking, immediately before its transfer to the Contractor. The Contractor complied
with Cabinet Office guidance on transfers within the public sector and with its
obligations under the 1981 Regulations. The Authority shall indemnify and keep
indemnified in full the Contractor against all costs, claims, or liabilities whatsoever
including without limitation any in respect of any emoluments or any other contractual
or statutory payment arising whether before, on or after the Relevant Commencement
Date out of or in connection with or in respect of the employment of any of those
persons referred to above in this Clause 30.2 including any claim made by any third
Party arising out of or in respect of any act or omission of any of such persons, which
occur as a result of any breach of obligations (whether contractual, statutory at
common law or otherwise) by the Authority or any of such persons before the Relevant
Commencement Date or the relevant pro-rata part of such costs, claims or liabilities
where attributable partly to matters covered by this Clause and partly to other matters.
30.3
The Contractor shall indemnify the Authority against any claim made against the
Authority at any time by any person currently or previously employed by the Authority
or by the Contractor for breach of contract, loss of office, unfair dismissal, redundancy,
loss of earnings or otherwise (and all damages, penalties, awards, legal costs,
expenses and any other liabilities incurred by the Authority) resulting from any act or
omission of the Contractor on or after the Relevant Commencement Date, except
where such claim arises as a result of any breach of obligations (whether contractual,
statutory, at common law or otherwise) by the Authority .
30.4
The Authority agrees that if it should at any time during the Contract Period introduce
any requirements upon the Contractor that the terms and conditions of employment of
the persons to whom Clause 30.2 applies or of any other persons employed in or who
may be offered employment in the provision of any part of the Services shall be
different from the terms and conditions of employment which applied before the
imposition of those requirements, whether in accordance with Government policy on
“the two-tier workforce” or otherwise, then the Authority and the Contractor shall use
NHS Employers – VAR02 2021/22
137
DocuSign Envelope ID: 35B47601-E1CA-49EF-B405-3E0F8023715E
their best endeavours to agree the extra costs of complying with that requirement as a
Variation.94
30.5
The Authority and the Contractor intend that the Transfer of Undertakings (Protection
of Employment) Regulations 2006 ("TUPE") and the Cabinet Office Statement on Staff
Transfers in the Public Sector (January 2000 as revised in November 2007 and as may
be further amended from time to time), its annex the "Fair Deal for Staff Pensions" and
its related guidance (the "Cabinet Office Statement") shall apply to the transfer of the
responsibility for the employment of the SHA Employees on the Transfer Date from the
SHA to the Contractor.
30.6
Subject to Clause 28.7(d) the Authority will indemnify and keep the Contractor
indemnified against all losses, liabilities, damages, costs including but not limited to
legal fees and expenses incurred by, or awarded against the Contractor relating to the
employment or termination of employment of any of the SHA Employees arising from
any acts or omissions occurring prior to the Transfer Date.
30.7
If the Contractor's requirement for the SHA Employees to perform their duties or carry
out their work diminishes or ceases and if this leads to any SHA Employees being
dismissed by reason of redundancy (the "Redundancy Event") then, subject to the pre-
conditions and limitations on liability as set out below, the Authority shall indemnify and
keep indemnified the Contractor against the Redundancy Costs (as defined below)
incurred by the Contractor.
30.8
The indemnity given by the Authority at clause 30.7 above shall be subject to Clause
28.7(d) and the following limitations or pre-conditions:
(a)
the Contractor agrees that it will use its reasonable endeavours to find suitable
alternative employment within its organisation for employees put at risk of
redundancy before issuing any notice of redundancy and prior to claiming under
the indemnity provided that such reasonable endeavours shall not require the
Contractor to dismiss any other employee in substitution; and
94 Clause 30 4 amended by variation CV2 2021/22, dated 1 April 2021
NHS Employers – VAR02 2021/22
138
DocuSign Envelope ID: 35B47601-E1CA-49EF-B405-3E0F8023715E
(b)
the Contractor will inform the Authority at least 30 days in advance of issuing
any notice of redundancy in order to allow the Authority to use its reasonable
endeavours to find suitable alternative employment within the local health
economy for employees put at risk of redundancy, provided that such
reasonable endeavours shall not require the Authority to dismiss any other
employee in substitution.95
31.
DATA PROTECTION96
31.1
For the purposes of this Clause 31, the terms "data subjects", "processing", "process"
and "appropriate technical and organisational measures" shall have the meanings
given to them in the Data Protection Legislation.
31.2
The Authority and Contractor (for the purposes of this Clause 31, together the Parties and
individually, a Party) agree and acknowledge that they are controllers with respect to the
Personal Data. Each Party must ensure compliance with all relevant Data Protection
Legislation at all times during the term of this Contract.
31.3
Each Party warrants that it has a valid registration with all relevant Regulatory
Authorities as required by the Data Protection Legislation.
31.4
Each Party shall inform the data subjects, on or before the date when that Party commences
processing of their Personal Data, of the purposes for which it will process their Personal
Data and to provide all the information that it is obliged to provide under the Data Protection
Legislation to ensure that the data subjects understand how their Personal Data will be
processed by that Party.
31.5
Each Party shall provide reasonable assistance to the other to enable the other Party to comply
with any requests received and to respond to queries or complaints from data subjects.
31.6
The Contractor shall not retain or process the Personal Data for longer than is
necessary to carry out the Agreed Purposes.
95 Clauses 30 5 – 30 8 amended by Variation No 5-2013/14, dated 26 March 2013
96 Clause 31 amended by CV 4 2018/19, dated 20 December 2018
NHS Employers – VAR02 2021/22
139
DocuSign Envelope ID: 35B47601-E1CA-49EF-B405-3E0F8023715E
31.7
Notwithstanding Clause 31.6, the Contractor may continue to retain the Personal Data in
accordance with any applicable statutory or professional retention periods.
31.8
The Contractor shall ensure that all Personal Data is, at the Authority's request and
sole discretion, returned to the Authority or destroyed:
(a)
on termination or expiry of this Contract; or
(b)
once processing of the Personal Data is no longer necessary for the
Agreed Purposes.
31.9
Following the deletion of the Personal Data in accordance with Clause 31.8, the
Contractor shall notify the Authority that the Personal Data in question has been
deleted in accordance with any such request.
31.10 The Contractor shall not disclose or transfer the Personal Data to any person or entity
located outside of the European Economic Area without the prior written consent of the
Authority which may be conditional and at its sole discretion.
31.11 Having regard to the state of technological development and the costs of implementing
such measures, the Contractor shall have and maintain in place throughout the term
of this Contract appropriate technical and organisational measures in order to:
(a)
prevent:
(i)
unauthorised or unlawful processing of Personal Data; and
(ii)
the accidental loss or destruction of, or damage to, the Personal Data;
and
(b)
ensure a level of security appropriate to:
(i)
the harm that might result from such unauthorised or unlawful
processing or accidental loss, destruction or damage; and
(ii)
the nature of the Personal Data to be protected.
Notwithstanding any audit rights within the Contract, the Authority retains the right to
request all information necessary from the Contractor to evidence its compliance with
NHS Employers – VAR02 2021/22
140
DocuSign Envelope ID: 35B47601-E1CA-49EF-B405-3E0F8023715E
the Data Protection Legislation and this Clause 31. The Authority shall be permitted
to conduct audits and/or appoint an independent auditor with reasonable prior notice
and minimal disruption to the Contractor’s business.97
31.12 The Contractor shall ensure that its staff members are appropriately trained to handle
and process the Personal Data in accordance with the technical and organisational
security measures and with the Data Protection Legislation.
31.13 Each Party shall ensure that only Permitted Recipients have access to the Personal
Data and shall ensure the reliability of all such Permitted Recipients.
31.14 The Contractor shall notify the Authority of any potential or actual losses of the
Personal Data, and any Data Security Breach, as soon as possible and in any
event within 24 hours after becoming aware of the breach. The Parties shall work
together to consider the action required in order to resolve the issue in accordance
with the applicable Data Protection Legislation.
31.15 The Contractor shall provide reasonable assistance as is necessary to the Authority
including, without limitation, support to facilitate the handling of any Data Security
Breach and conducting data protection impact assessments.
31.16 In the event of a dispute or claim brought by a Data Subject or a relevant Regulatory
Authority concerning the processing of the Personal Data against either or both
parties, the Parties will inform each other about any such disputes or claims, and will
cooperate with a view to settling them amicably in a timely fashion.
31.17 The Parties agree to respond to any generally available non-binding mediation
procedure initiated by a Data Subject or Regulatory Authority. If they do participate
in the proceedings, the Parties may elect to do so remotely. The Parties also agree
to consider participating in any other arbitration, mediation or other dispute resolution
proceedings developed for data protection disputes.
31.18 Each Party shall abide by a decision of a competent court of the UK or of the UK
Regulatory Authority which is final and against which no further appeal is possible.
97 Clause 31 11 amended by variation CV2 2021/22, dated 1 April 2021
NHS Employers – VAR02 2021/22
141
DocuSign Envelope ID: 35B47601-E1CA-49EF-B405-3E0F8023715E
31.19 The Contractor warrants and undertakes that it will:
(a)
process the Personal Data in compliance with all applicable Data Protection
Legislation and ensure that it at has collected all Personal Data lawfully and
has maintained adequate records of doing so;
(b)
respond within a reasonable time and as far as reasonably possible to enquiries
from any relevant Regulatory Authority in relation to the Personal Data;
(c)
respond to Subject Access Requests and any other requests by data subjects
to exercise their rights under the Data Protection Legislation in accordance with
the Data Protection Legislation;
(d)
where applicable, maintain registration with all relevant Regulatory Authorities
to enable the Contractor to process all Personal Data for the Agreed Purpose;
(e)
take all appropriate steps to ensure compliance with the security measures set
out at Clause 31.11 above; and
(f)
not disclose or transfer the Personal Data outside of the European Economic
Area without the prior written consent of the Authority.
31.20 Except as expressly stated in this Contract, all warranties, conditions and terms,
whether express or implied by statute, common law or otherwise are hereby excluded
to the extent permitted by law.
31.21 The Contractor undertakes to indemnify the Authority and hold the Authority harmless
from any fines, costs, charges, damages, expenses or losses incurred or suffered by
the Authority as a result of a breach by the Contractor of any of the provisions of this
Clause 31.
31.22 If the Data Protection Legislation applicable to either Party changes in a way such
that this Contract is no longer adequate for the purposes of governing lawful data
sharing, the parties agree to negotiate in good faith to review the Contract In light of
NHS Employers – VAR02 2021/22
142
DocuSign Envelope ID: 35B47601-E1CA-49EF-B405-3E0F8023715E
the changes and to make any amendments required to enable this Contract to be
adequate for those purposes.
32.
FREEDOM OF INFORMATION
32.1
The Contractor acknowledges that the Authority is subject to the requirements of the
Code of Practice on Government Information, FOIA and the Environmental Information
Regulations and shall assist and cooperate with the Authority to enable the Authority
to comply with its Information disclosure obligations.
32.2
The Contractor shall and shall procure that its sub-contractors shall:
(a)
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;
(b)
provide the Authority with a copy of all Information in its possession, or power
in the form that the Authority requires within five (5) Working Days (or such
other period as the Authority may specify) of the Authority’s request; and
(c)
provide all necessary assistance as 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.
32.3
the Authority shall be responsible for determining in its absolute discretion whether
Commercially Sensitive Information and/or any other information is exempt from
disclosure in accordance with the provisions of the Code of Practice on Government
Information, FOIA or the Environmental Information Regulations.98
32.4
The Authority shall not be liable for any loss or damage suffered by the Contractor,
whether in contract, tort (including negligence) or any other way, as a result of the
Authority releasing information in response to a request made under the FOIA.
98 Clause 32 2 amended by variation CV2 2021/22, dated 1 April 2021
NHS Employers – VAR02 2021/22
143
DocuSign Envelope ID: 35B47601-E1CA-49EF-B405-3E0F8023715E
32.5
In no event shall the Contractor respond directly to a request for information unless
expressly authorised to do so by the Authority.
32.6
The Contractor acknowledges that the Authority may, acting in accordance with the
Department of Constitutional Affairs' Code of Practice on the Discharge of the
Functions of Public Authorities under Part 1 of the FOIA (“the Code”), be obliged under
FOIA or the Environmental Information Regulations to disclose information:
(a)
without consulting or obtaining consent from the Contractor; or
(b)
despite having consulted with the Contractor and having taken the Contractors'
views into account
provided always that where Clause 32.6 applies the Authority shall, in accordance with
any recommendations of the Code, take reasonable steps , where appropriate, to give
the Contractor advance notice, or failing that, to draw the disclosure to the Contractor’s
attention after such disclosure.
32.7
The Contractor shall ensure that all Information is retained for disclosure and shall
permit the Authority to inspect such records as requested from time to time.
33.
CONFLICT OF INTEREST
33.1
The Contractor shall take appropriate steps to ensure that it is not placed in a position
where, in the reasonable opinion of the Authority, there is or is likely to be a material
conflict, or a potential material conflict, as to be likely to prejudice the duties owed by
the Contractor to the Authority under the provisions of the Contract (“Conflict”). The
Contractor will disclose to the Authority full particulars of the Conflict which may arise
of which it is aware.
33.2
Where there is a Conflict, the Authority reserves the right to terminate the Contract
immediately by notice in writing and/or to take such steps it deems necessary, including
the dispute resolution process, providing that it acts reasonably in doing so and prior
to any termination or other action consults with the Contractor with a view to agreeing
reasonable steps to avoid or remove the Conflict.
NHS Employers – VAR02 2021/22
144
DocuSign Envelope ID: 35B47601-E1CA-49EF-B405-3E0F8023715E
33.3
The actions of the Authority pursuant to this clause shall not prejudice or affect any
rights of action or remedy which shall have accrued or shall thereafter accrue to the
Authority.
34.
DISPUTE RESOLUTION
34.1
If a dispute arises out of or in connection with the Contract or the performance, validity
or enforceability of it (“Dispute”) then, unless expressly provided in the Contract, the
parties shall follow the dispute resolution procedure set out in this Clause 34.
34.2
If the Authority's Representative and the Contractor's representative are for any reason
unable to resolve the Dispute within 30 days then either Party shall give to the other
written notice of the Dispute, setting out its nature and full particulars ("Dispute
Notice"), together with relevant supporting documentation. On service of the Dispute
Notice the Dispute shall be referred to the Director of the Contractor and Senior
Responsible Officer for the Authority who shall attempt in good faith to resolve the
Dispute; and
34.3
If the Director of the Contractor and Senior Responsible Officer for the Authority are
for any reason unable to resolve the Dispute within 30 days of it being referred to them,
the parties will attempt to settle it by mediation in accordance with the CEDR Model
Mediation Procedure ("ADR procedure"). Unless otherwise agreed between the
parties, the mediator shall be nominated by CEDR Solve. To initiate the mediation, a
Party must serve notice in writing (ADR notice) to the other Party requesting mediation.
A copy of the ADR notice should be sent to CEDR Solve.99
34.4
The mediation will start not later than 20 days after the date of the ADR notice. Unless
otherwise agreed by the parties, the place of mediation shall be nominated by the
mediator.
34.5
The performance of obligations under the Contract shall not cease or be delayed by
the application of an ADR procedure pursuant to Clauses 34.1 to 34.3.
99 Clause 34.2 – 34.3 amended by Variation No 5-2013/14, dated 26 March 2013.
NHS Employers – VAR02 2021/22
145
DocuSign Envelope ID: 35B47601-E1CA-49EF-B405-3E0F8023715E
34.6
If the matter has not been resolved by the ADR procedure within 30 days of service of
the ADR notice or if the parties to the Dispute will not participate in the ADR procedure,
the Dispute shall be referred to arbitration in accordance with Clause 35 below.
34.7
No Party may commence court proceedings or arbitration in relation to a dispute until
it has attempted to settle the dispute in accordance with this Clause 34 and either the
ADR procedure has terminated or the other Party has failed to participate in the ADR
procedure, provided that the right to issue proceedings is not prejudiced by a delay.
35.
ARBITRATION
35.1
All Disputes between the parties which cannot be resolved in accordance with Clause
34 shall be referred to arbitration. The arbitration shall be governed by both the
Arbitration Act 1996 and Rules as agreed between the parties (“Rules for Arbitration”).
35.2
The arbitration shall take place in England and Wales.
35.3
Should the Parties be unable to agree on an arbitrator or arbitrators, or be unable to
agree on the Rules for Arbitration, any Party may, upon giving written notice to the
other Party, apply to the President or the Vice President, for the time being, of the
Chartered Institute of Arbitrators for the appointment of an arbitrator or arbitrators and
for any decision on the Rules for Arbitration that may be necessary.100
35.4
Nothing in this Clause 35 shall be construed as prohibiting a Party from applying to a
court for interim injunctive relief.
36.
LIMITATION OF LIABILITY
36.1
This Clause 36 sets out the entire liability of the Parties (including any liability for the
acts or omissions of its employees, agents, consultants and subcontractors) in respect
of:
(a)
any breach of the Contract;
100 Clause 35 3 amended by variation CV2 2021/22, dated 1 April 2021
NHS Employers – VAR02 2021/22
146
DocuSign Envelope ID: 35B47601-E1CA-49EF-B405-3E0F8023715E
(b)
any use made by the Authority of the Services, the Deliverables or any part of
them; and
(c)
any representation, statement or tortious act or omission (including negligence)
arising under or in connection with the Contract.101
36.2
All warranties, conditions and other terms implied by statute or common law are, to the
fullest extent permitted by law, excluded from the Contract.
36.3
Nothing in this Clause 36 limits or excludes the Liability of the Contractor:
(a)
for death or personal injury resulting from negligence; or
(b)
for any damage or Liability incurred by the Authority as a result of fraud or
fraudulent misrepresentation by the Contactor; or
(c)
for any Liability incurred by the Authority as a result of any breach by the
Contractor of the condition as to title or the warranty as to quite possession
implied by section 2 of the Supply of Goods and Services Act 1982.
36.4
Subject to Clause 36.2 and Clause 36.3:
(a)
the Parties shall not be liable for:
(i)
loss of profits; or
(ii)
loss of business; or
(iii)
depletion of goodwill and/or similar losses; or
(iv)
loss of anticipated savings; or
(v)
loss of corruption of data or information; or
101 Clause 36 1 amended by variation CV2 2021/22, dated 1 April 2021
NHS Employers – VAR02 2021/22
147
DocuSign Envelope ID: 35B47601-E1CA-49EF-B405-3E0F8023715E
(vi)
any special, indirect, consequential or pure economic loss, costs,
damages, charges or expenses.
(b)
except as expressly stated in the Contract, each Party’s total liability in contract,
tort (including negligence or breach of statutory duty), misrepresentation,
restitution or otherwise arising in connection with the performance, or
contemplated performance, of the Contract shall be limited to the Contract Price
for the year in which the liability arose.102
37.
LAW AND JURISDICTION
37.1
The Contract shall be governed by and interpreted in accordance with English Law and
shall be subject to the exclusive jurisdiction of the Courts of England and Wales.
38.
FORCE MAJEURE
38.1
Subject to the remaining provisions of this Clause 38 (and, in relation to the Contractor,
subject to its compliance with its obligations in Section Eleven – Service Continuity
Plan), no Party shall have any liability under or be deemed to be in breach of the
Contract for any delays or failures in performance of the Contract which result from
circumstances beyond the reasonable control of that Party and which is not attributable
to any act or failure to take preventative action by that Party, including fire; flood; violent
storm; pestilence; explosion; malicious damage; armed conflict; acts of terrorism;
nuclear, biological or chemical warfare; or any other disaster, natural or man-made,
but excluding:
(d) any industrial action occurring within the Contractor’s or any sub-contractor’s
organisation; or
(b) the failure by any sub-contractor to perform its obligations under any sub-
contract.103
102 Clause 36 4 amended by variation CV2 2021/22, dated 1 April 2021
103 Clause 38 1 amended by variation CV2 2021/22, dated 1 April 2021
NHS Employers – VAR02 2021/22
148
DocuSign Envelope ID: 35B47601-E1CA-49EF-B405-3E0F8023715E
38.2
If such circumstances continue for a continuous period of more than 3 months either
Party may terminate the Contract by written notice to the other Party.
39.
RIGHTS OF THIRD PARTIES
Save for the Crown and the Comptroller and Auditor General, a Person who is not a
Party to the Contract shall have no rights pursuant to the Contracts (Rights of Third
Parties Act 1999) to enforce any term of the Contract.
40.
ENTIRE AGREEMENT
40.1
The Contract constitutes the whole agreement between the Parties and supersedes
any previous arrangement, understanding or agreement between them relating to the
subject matter of the Contract.
40.2
Each Party acknowledges that, in entering into the Contract, it does not rely on any
statement, representation, assurance or warranty (Representation) of any person
(whether a party to the Contract or not) other than as expressly set out in the Contract.
Each Party agrees that the only remedies available to it arising out of or in connection
with a Representation shall be for breach of contract.
40.3
Nothing in this Clause 40 shall limit or exclude any liability for fraud.
41.
NO PARTNERSHIP OR AGENCY
Nothing in the Contract is intended to, or shall operate to, create a partnership between
the Parties, or to authorise either Party to act as agent for the other, and neither Party
shall have the authority to act in the name or on behalf of or otherwise to bind the other
in any way (including the making of any representation or warranty, the assumption of
any obligation or liability and the exercise of any right or power).
NHS Employers – VAR02 2021/22
149
DocuSign Envelope ID: 35B47601-E1CA-49EF-B405-3E0F8023715E
42.
COUNTERPARTS
The Contract may be executed in any number of counterparts, each of which when
executed and delivered shall constitute an original of this agreement, but all the
counterparts shall together constitute the same agreement.
IN WITNESS whereof the parties have signed the Contract the year and date first before
written.
SIGNED for and on behalf of
By: Sarah Parker
THE SECRETARY OF STATE FOR
HEALTH
SIGNED for and on behalf of
By: Danny Mortimer
THE NHS CONFEDERATION
(EMPLOYERS) COMPANY
LIMITED
SIGNED for and on behalf of
By: Victor Adebowale
THE NHS CONFEDERATION
NHS Employers – VAR02 2021/22
150
DocuSign Envelope ID: 35B47601-E1CA-49EF-B405-3E0F8023715E
SECTION ONE104
SCOPE OF WORK
1.
Services
1.1
The Services to be provided under the Contract will be specified within Work
Programmes. These Work Programmes will be updated annually to form that year's
mutually agreed Services and will set out details of the required services, outcomes,
key performance indicators and additional programme resources available to ensure
delivery. During the life of an annual Work Programme it will be open to the Authority
and the Contractor to mutually agree a reprioritisation of the Services to be provided
to the Authority under that Work Programme. The Parties agree that, as a general rule,
any reprioritisation will mean that the services under the Work Programme will be
amended at no additional cost to the Authority. However, where the Authority agrees
that additional unforeseen costs will be incurred as a result of reprioritisation of a Work
Programme then additional funding will be discussed and agreed.
1.2
During the provision of the Services the Contractor shall liaise directly with the
Authority's commissioning leads. The Authority's commissioning leads will be specified
in respective Work Programmes and any constraints on liaison will be specified in the
respective Work Programmes.
1.3
The Authority's commissioning leads will be responsible for commissioning Services
and be the recipient of the Services. The name of the Authority's contract manager will
be notified by the Authority to the Contractor from time to time. However, day to day
contact with the Contractor on working arrangements and delivery of respective
services will be the responsibility of each Authority commissioning lead.
1.4
The Contractor shall achieve the following Contract Key Performance Indicators (KPIs)
in each Contract Year:
1.4.1 Delivery of a minimum of 98% of all Work Programme Deliverables within each
Contract Year; and
104 Section One inserted as per variation CV2 2021/22, dated 1 April 2021
NHS Employers – VAR02 2021/22
151
DocuSign Envelope ID: 35B47601-E1CA-49EF-B405-3E0F8023715E
1.4.2 Production of a Financial Summary Report, including a breakdown of costs by
Work Programme, in a format agreed with the Authority and no later than thirty
(30) working days after the end of each quarter; and
1.4.3 Ensure where User Satisfaction Surveys issued include the following questions:
1.4.3.1 The advice, guidance, tools and support provided by NHS Employers
have helped me/my organisation better understand the agenda and
the implications for our organisation;
1.4.3.2 The advice, guidance, tools and support provided by NHS Employers
have helped me/my organisation stay up to date with the latest
thinking, requirements and developments.
that 75% are returned with ‘Agree’ or ‘Strongly Agree’ selected as the response.
1.5
The Contractor shall deliver a report in a format agreed with the Authority, on a
quarterly basis and within eighteen (18) working days of the end of each quarter,
evidencing the progress against each of the Work Programme Deliverables and
against the Contract KPIs as outlined in clause 1.4. The Parties acknowledge that the
quarter 4 Financial Summary Report may be delayed due to year-end adjustments.
The Contractor shall provide this report as soon as practicable after the year end but
no later than thirty (30) working days after the year end.
2
Principal Service Areas
2.1
The principal service areas are as follows:
(i)
Employment Relations;
(ii)
Pensions and Reward;
(iii)
Medical Workforce and Pay;
(iv)
Workforce Supply;
(v)
Staff Experience;
(vi)
Professional Standards and Regulation (non-medical);
(vii)
National Engagement Service;
(viii)
Social Partnership Forum;
NHS Employers – VAR02 2021/22
152
DocuSign Envelope ID: 35B47601-E1CA-49EF-B405-3E0F8023715E
(ix)
Communications; and
(x) Diversity and Inclusion (NHSE/I commissioned programme)
NHS Employers – VAR02 2021/22
153
DocuSign Envelope ID: 35B47601-E1CA-49EF-B405-3E0F8023715E
SECTION TWO105
PERFORMANCE, FINANCIAL REPORTS AND AUDIT RIGHTS
PART A: FINANCIAL TRANSPARENCY OBJECTIVES AND OPEN BOOK
DATA
1.
FINANCIAL TRANSPARENCY OBJECTIVES
1.1
The Contractor acknowledges that the provisions of this Section are designed (inter
alia) to facilitate, and the Contractor shall co-operate with the Authority in order to
achieve, the following objectives:
(a)
Understanding the charges
(i)
for the Authority to understand any payment sought from it by the
Contractor including an analysis of the costs, overhead recoveries
(where relevant), time spent by Contractor Personnel in providing the
Services and the Contractor’s profit margin;
(ii)
for both Parties to be able to understand the cost forecasts and to have
confidence that these are based on justifiable numbers and
appropriate forecasting techniques;
(b)
Agreeing the impact of Variation
(i)
for both Parties to agree the quantitative impact of any Variations that
affect ongoing costs and to identify how these could be mitigated
and/or reflected in the Contractor’s charges;
(ii)
for both Parties to be able to review, address issues with and re-
forecast progress in relation to the provision of the Services;
(c)
Continuous improvement
NHS Employers – VAR02 2021/22
154
DocuSign Envelope ID: 35B47601-E1CA-49EF-B405-3E0F8023715E
105 Section Two amended by variation CV2 2021/22, dated 1 April 2021
NHS Employers – VAR02 2021/22
155
DocuSign Envelope ID: 35B47601-E1CA-49EF-B405-3E0F8023715E
(i)
for the Parties to challenge each other with ideas for efficiency and
improvements; and
(ii)
to enable the Authority to demonstrate that it is achieving value for
money for the tax payer relative to current market prices,
(together the “Financial Transparency Objectives”).
2.
OPEN BOOK DATA
2.1
The Contractor acknowledges the importance to the Authority of the Financial
Transparency Objectives and the Authority’s need for complete transparency in the
way in which the charges are calculated.
2.2
During the Contract Period, and for a period of seven (7) years following the end of the
Contract Period, the Contractor shall:
(a)
maintain and retain the Open Book Data; and
(b)
disclose and allow the Authority and/or the Audit Agents access to the Open
Book Data.
PART B: AUDIT RIGHTS
1.
AUDIT RIGHTS
1.1
The Authority, acting by itself or through its Audit Agents, shall have the right during
the Contract Period and for a period of eighteen (18) months thereafter, to assess
compliance by the Contractor of the Contractor’s obligations under the Contract,
including for the following purposes:
(a)
to verify the integrity and content of any financial report;
NHS Employers – VAR02 2021/22
156
DocuSign Envelope ID: 35B47601-E1CA-49EF-B405-3E0F8023715E
(b)
to verify the accuracy of the charges and any other amounts payable by the
Authority under the Contract (and proposed or actual variations to such charges
and payments);
(c)
to verify the costs (including the amounts paid to all sub-contractors and any
third party suppliers);
(d)
to verify the Open Book Data;
(e)
to verify the Contractor’s compliance with the Contract and applicable law;
(f)
to identify or investigate actual or suspected fraud, impropriety or accounting
mistakes or any breach or threatened breach of security and in these
circumstances the Authority shall have no obligation to inform the Contractor of
the purpose or objective of its investigations;
(g)
to identify or investigate any circumstances which may impact upon the
financial stability of the Contractor or its ability to perform the Services;
(h)
to obtain such information as is necessary to fulfil the Authority’s obligations to
supply information for parliamentary, ministerial, judicial or administrative
purposes including the supply of information to the Comptroller and Auditor
General;
(i)
to review any books of account and the internal contract management accounts
kept by the Contractor in connection with the Contract;
(j)
to carry out the Authority’s internal and statutory audits and to prepare, examine
and/or certify the Authority's annual and interim reports and accounts;
(k)
to enable the National Audit Office to carry out an 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;
NHS Employers – VAR02 2021/22
157
DocuSign Envelope ID: 35B47601-E1CA-49EF-B405-3E0F8023715E
(l)
to verify the accuracy and completeness of any management Information
delivered or required by the Contract;
(m)
to review any performance monitoring reports and/or other records relating to
the Contractor’s performance of the Services and to verify that these reflect the
Contractor’s own internal reports and records;
(n)
to inspect the IT Environment (or any part of it) and the wider service delivery
environment (or any part of it);
(o)
to review the Contractor’s quality management systems (including all relevant
quality plans and any quality manuals and procedures).
1.2
Except where an audit is imposed on the Authority by a regulatory body or where the
Authority has reasonable grounds for believing that the Contractor has not complied
with its obligations under the Contract, the Authority may not conduct an audit of the
Contractor more than twice in any Contract Year.
1.3
Nothing in the Contract shall prevent or restrict the rights of the Comptroller and/or
Auditor General and/or their representatives from carrying out an audit, examination or
investigation of the Contractor for the purposes of and pursuant to applicable law.
2.
CONDUCT OF AUDITS
2.1
The Authority shall during each audit comply with those security, sites, systems and
facilities operating procedures of the Contractor that the Authority deems reasonable
and use its reasonable endeavours to ensure that the conduct of each audit does not
unreasonably disrupt the Contractor or delay the provision of the Services.
2.2
Subject to the Authority's obligations of confidentiality, the Contractor shall on demand
provide the Authority and the Audit Agents with all reasonable cooperation and
assistance (and shall procure such co-operation and assistance from its sub-
contractors) in relation to each audit, including:
NHS Employers – VAR02 2021/22
158
DocuSign Envelope ID: 35B47601-E1CA-49EF-B405-3E0F8023715E
(a)
all information requested by the Authority within the permitted scope of the
audit;
(b)
reasonable access to any sites and to any equipment used (whether exclusively
or non-exclusively) in the performance of the Services;
(c)
access to the Contractor System; and
(d)
access to Contractor Personnel.
2.3
The Contractor shall implement all measurement and monitoring tools and procedures
necessary to measure and report on the Contractor's performance of the Services
against the applicable performance indicators at a level of detail sufficient to verify
compliance with any performance indicators.
2.4
The Authority shall endeavour to (but is not obliged to) provide at least fifteen (15)
Working Days’ notice of its intention to conduct an audit.
2.5
The Parties agree that they shall bear their own respective costs and expenses
incurred in respect of compliance with their obligations under this paragraph 2, unless
the audit identifies a material default by the Contractor in which case the Contractor
shall reimburse the Authority for all the Authority's reasonable costs incurred in
connection with the audit.
3.
USE OF CONTRACTOR’S INTERNAL AUDIT TEAM
3.1
As an alternative to the Authority’s right pursuant to paragraph 1.1 to exercise an audit
either itself or through its Audit Agents, the Authority may require in writing that an audit
is undertaken by the Contractor’s own internal audit function for any of the purposes
set out in paragraph 1.1.
3.2
Following the receipt of a request from the Authority under paragraph 3.1 above, the
Contractor shall procure that the relevant audit is undertaken as soon as reasonably
practicable and that the Authority has unfettered access to:
NHS Employers – VAR02 2021/22
159
DocuSign Envelope ID: 35B47601-E1CA-49EF-B405-3E0F8023715E
(a)
the resultant audit reports; and
(b)
all relevant members of the Contractor’s internal audit team for the purpose of
understanding such audit reports.
4.
RESPONSE TO AUDITS
4.1
If an audit undertaken pursuant to paragraphs 1 or 3 identifies that:
(a)
the Contractor has committed a default, the Authority may (without prejudice to
any rights and remedies the Authority may have) require the Contractor to
correct such default as soon as reasonably practicable;
(b)
there is an error in a financial report, the Contractor shall promptly rectify the
error;
(c)
the Authority has overpaid any charges, the Contractor shall pay to the
Authority:
(i)
the amount overpaid;
(ii)
interest on the amount overpaid at the applicable rate under the Late
Payment of Commercial Debts (Interest) Act 1998, accruing on a daily
basis from the date of overpayment by the Authority up to the date of
repayment by the Contractor; and
(iii)
the reasonable costs incurred by the Authority in undertaking the audit,
the Authority may exercise its right to deduct such amount from the
charges if it prefers; and
(d)
the Authority has underpaid any charges, the Contractor shall not be entitled to
increase the charges paid or payable by the Authority.
NHS Employers – VAR02 2021/22
160
DocuSign Envelope ID: 35B47601-E1CA-49EF-B405-3E0F8023715E
PART C: PERFORMANCE
5.
CONTRACT MONITORING
5.1
The Authority shall liaise with the Contractor, monitor the provision of the Services and
ensure any specific projects are on time within budget and of appropriate quality
standards.
5.2
The Authority shall carry out planned checks as are necessary throughout the Contract
Period to ascertain that the Services are being provided to agreed standards.
5.3
The Authority shall have all appropriate access to all relevant information and
documents held by the Contractor in undertaking the Contract.
5.4
The Contractor at the request of the Authority shall produce such documentary
evidence as is reasonably required and allow consultation with any employee of the
Contractor about particular service areas as is reasonably necessary.
5.5
The Contractor shall propose systems of self-monitoring and reporting on the delivery
of all Services, reflecting key performance indicators, and providing reports to the
Authority in an electronic format acceptable to the Authority.
6.
HAND-OVER PROCEDURE
6.1
The Contractor shall, for a period to be agreed between the Parties and which, in any
event, shall not exceed 26 weeks, subject to mutual agreement on the reasonable and
proportionate period for each of the business areas, preceding the Contract
termination or expiry date, additionally provide the services of his own experienced
staff to assist others in the process of familiarisation and convey to them all necessary
information to enable them to operate the plant, equipment and services in an efficient
manner.
6.2. At the end of the Contract, the Contractor shall provide the Authority with a signed
certificate stating that all works, including defects notified by the Authority, have been
NHS Employers – VAR02 2021/22
160
DocuSign Envelope ID: 35B47601-E1CA-49EF-B405-3E0F8023715E
completed. This certificate shall be submitted to the Authority with the final monthly
invoice for the Contract.
6.3
At the end of the Contract and within the time period above, the Contractor shall
provide the Authority with all information, data and any results arising from the
provision of the Services, whether or not on electronic media.
6.4
The Contractor shall, as part of the Hand-over Process, provide the Authority copies
of all electronic programmes used in provision of the Services, where it is reasonable
to do so. In the event that there is a logistical issue in providing the Authority with the
electronic programmes requested, the Parties will agree an alternative medium for the
transfer of this information.
6.5
The Contractor, in execution of its duties, shall ensure that all management and control
procedures are auditable and comply with a recognisable Quality Assurance Plan
agreed with the Authority prior to their implementation.
7.
PERFORMANCE MONITORING
7.1
The Authority will provide the Contractor with an annual programme of work under the
main content heads for discussion and mutual agreement. The Authority and the
Contractor will agree key performance indicators and targets for the Contractor. These
agreed targets shall be monitored and measured by the Contractor. Performance
monitoring reports (which shall include a report on the solvency of the Contractor and
a financial update on the expenditure from the overall yearly budget against the Work
Programme for each Principal Service area set out in Section One – Scope of Work)
will be produced by the Contractor and provided to the Authority for discussion at in-
year quarterly performance review meetings. At these meetings the Authority will
discuss any issues which have not been raised and dealt with at informal bilateral
meetings between subject specific Authority commissioning leads and NHS provider
leads. There will be an expectation that these meetings deal with progress on the
agreed programme of work, quality and timescale. Reports to the formal quarterly
review meetings will be by exception where they have been unable to mutually sort out
any problems. The frequency of the informal bilaterals will be set by the relevant policy
commissioner and provider leads at the beginning of the financial year. The frequency
NHS Employers – VAR02 2021/22
161
DocuSign Envelope ID: 35B47601-E1CA-49EF-B405-3E0F8023715E
of the quarterly review meetings will be regularly reviewed and if required changed by
mutual consent or, in the absence of consent, as the Authority shall determine. The
Authority shall be entitled to nominate a person or persons to represent him at such
meetings or to be present at such meetings for the purposes of participating in or
observing the review.
8.
STANDARDS
8.1
The Contractor when providing the Services will comply with all relevant European
Standards and where not covered by European Standards the relevant equivalent.
NHS Employers – VAR02 2021/22
162
DocuSign Envelope ID: 35B47601-E1CA-49EF-B405-3E0F8023715E
SECTION
THREE106 NOT
USED
106 Section Three amended as per variation CV2 2021/22, dated 1 April 2021
NHS Employers – VAR02 2021/22
163
DocuSign Envelope ID: 35B47601-E1CA-49EF-B405-3E0F8023715E
SECTION FOUR107
ADMINISTRATIVE
INSTRUCTIONS
4.
AUTHORISATION
1.1
The following person is authorised to act as the Authority's Representative on all
matters relating to the Contract:
Sarah Parker, Deputy Director, Commercial Capability and Supplier Management
1.2
The Authority's Representative may authorise in writing other officers to act on his/her
behalf.
1.3
The following person is authorised to act as the Contractor's Representative on all
matters relating to the Contract:
CEO of NHS Employers
1.4
The Contractor's Representative may authorise in writing other officers to act on his/her
behalf.
5.
ADDRESS FOR PAYMENT
2.1
All invoices shall be sent to the Authority addressed to:
Pay, Pensions and Employment Services Team
Department of Health and Social Care
Quarry House
Quarry Hill
Leeds
LS2 7UE
2.2
All invoices to the Contractor shall be sent addressed to:
107 As amended by Variation No 5-2013/14, dated 26 March 2013 and subsequently by variation CV2 2021/22, dated 1 April 2021
NHS Employers – VAR02 2021/22
164
DocuSign Envelope ID: 35B47601-E1CA-49EF-B405-3E0F8023715E
NHSE Finance Team
NHS Employers
2 Brewery Wharf
Kendell Street
Leeds
LS10 1JR
3.
CORRESPONDENCE
3.1
All correspondence to the Authority shall be sequentially numbered and sent to the
following address:
Pay, Pensions and Employment Services Team
Department of Health and Social Care
Quarry House
Quarry Hill
Leeds
LS2 7UE
3.2
All correspondence to the Contractor shall be appropriately referenced and sent to
the following address:
NHS Employers
2 Brewery Wharf
Kendell Street
Leeds
LS10 1JR
NHS Employers – VAR02 2021/22
165
DocuSign Envelope ID: 35B47601-E1CA-49EF-B405-3E0F8023715E
108 Section Five amended by variation CV2 2021/22, dated 1 April 2021
NHS Employers – VAR02 2021/22
167
SECTION
SIX109 EXPERT
STAFF
The following is the agreed list of Expert Staff roles as referred to in clause 11.2
Danny Mortimer, Chief Executive Officer
, Business Planning Manager
Employment Relations and Reward
Paul Wallace, Director of ERR
Andrea Hester, Deputy Director of ERR
TBC, Assistant Director of Employment Relations
Gordon Benson, Assistant Director of medical pay and workforce
Head of Pensions
TBC, Programme Manager Job Evaluation
, Head of Employment relations
, Head of Medical Pay and Workforce
Head of Medical Pay and Contracts
, Head of Analytics
, Analytics Programme Manager x2
TBC, Head of Reward
Development and Employment
Caroline Waterfield, Director of Development and Employment
Michelle Wayt, Assistant Director - Workforce supply and assurance
Jennifer Gardner, Assistant Director Staff experience
Paul Taylor-Pitt, Assistant Director - Organisational Development
, Programme lead – Recruitment and Employment Checks
, Programme lead – Workforce Supply (international recruitment and Code)
, Programme lead – Health and Wellbeing (inc staff council subgroup, health
and safety at work partnership group)
National Engagement Service
Rebecca Smith, Director of Engagement
Liz Gambrell, Deputy Director Engagement (South)
Gayna Deakin, Assistant Director Engagement (London)
Catherine Wills, Assistant Director Engagement (Midlands &East)
109 As amended by Variation No 5-2013/14, dated 26 March 2013 and subsequently by variation CV2 2021/22, dated 1 April 2021.
NHS Employers – VAR02 2021/22
170
DocuSign Envelope ID: 35B47601-E1CA-49EF-B405-3E0F8023715E
109 As amended by Variation No 5-2013/14, dated 26 March 2013 and subsequently by variation CV2 2021/22, dated 1 April 2021
NHS Employers – VAR02 2021/22
171
Kathryn Grayling, Assistant Director Engagement (North)
Equality and Diversity
, Head of Diversity and Inclusion
Communications
Sarah Hirst, Assistant Director of Communications
, Head of Communications
NHS Employers – VAR02 2021/22
171
DocuSign Envelope ID: 35B47601-E1CA-49EF-B405-3E0F8023715E
SECTION SEVEN110
RELEVANT EMPLOYEES
First name
Surname
110 As amended by Variation No 5-2013/14, dated 26 March 2013 and subsequently by variation CV2 2021/22, dated 1 April 2021
NHS Employers – VAR02 2021/22
173
DocuSign Envelope ID: 35B47601-E1CA-49EF-B405-3E0F8023715E
SECTION EIGHT
PRICE ADJUSTMENT ILLUSTRATION
This Section Eight relates to Contract Years 1-11 only.111
Figures are illustrative only - to show how factors bearing on price work
EC - just the two first letters of eKSF and CAJE
ILLUSTRATION
Original Price is X and is 100 ( it does not include eKSF and CAJE)
Tariff is T and is assumed to be 1% for all years
eKSF/CAJE contracts are EC and are 10
Yearly reduction in contract is Y and can be either 10% or 5%
EXAMPLE A – year one of the contract i.e no Y
X
+ EC = final amount paid
100
+ 10 = 110
EXAMPLE B – any year after year 1 in which there is no % price reduction
X + T
+ EC = final amount paid
100 + 1% = 101 + 10 = 111
EXAMPLE C - any year after 1 in which DH apply 10% price decrease
X
-
Y + T + EC = final amount paid
100 - 10% + 1% = 91 + 10 = 101
EXAMPLE D - 5 year period in which maximum price reductions are used by DH
Year 1
X + T + EC
100 + 10 = 110
Year 2
X - Y + T = new price X + EC = final price
100- 10% +1% = 91 + 10 = 101
Year 3
111 Inserted as per variation CV2 2021/22, dated 1 April 2021
NHS Employers – VAR02 2021/22
174
DocuSign Envelope ID: 35B47601-E1CA-49EF-B405-3E0F8023715E
New X – Y +T = recalculated X + EC = new total price
91-10% +1% = 82.81 + 10 = 92.81
Year 4* assume eKSF and CAJE have ended
New X –Y +T = recalculated X = new total price
82.81 – 5% + 1% = 79.50
Year 5
New X –Y +T = new total price
79.50 -10% + 1% = 72.35
NHS Employers – VAR02 2021/22
175
DocuSign Envelope ID: 35B47601-E1CA-49EF-B405-3E0F8023715E
SECTION NINE112
GOVERNANCE
PART I – GOVERNANCE PLAN FOR CONTRACT YEARS PRIOR TO CONTRACT
YEAR 12.
NHS Employers: Governance plan to address the findings in the PKF report into the
development of the NHS Employers member model
LEADERSHIP
Action
Target
Evidence
Director
Completion
Lead
Date
L1
Appoint a balanced board of
Within 2
1. Companies House
NSHC
executive and nonexecutive
weeks of
register
Director of
directors ensuring that the non-
the contract
2. Examination of
Resources
executives have appropriate
being
non-executives’
governance and financial
signed
CVs will show
management skills.
relevant experience
Review after 6 months and either
3. Documentation of
recruit new non execs or provide
review of skills after
additional training as appropriate
6 months
L2
Board will meet with sufficient
On-going
1. Schedule of
NSHC
regularity to discharge its duties
meetings will show
Director of
regularity
Resources
2. Minutes will show
content of
meetings
L3
All new NHS Employers’
Within 2
1. Copy of briefing –
NSHC
directors to receive information
weeks of
directors to
Director of
about their responsibilities as
appointment sign to confirm
Resources
directors
and
receipt
then
updated as
appropriate
L4
Review NHS Employers’
30 August
1. Copies of signed
NSHC
directors’ contracts (existing and
2010
contracts
Director of
new) to include clauses
supported by new
Resources
addressing conflicts of interest,
conflict of
fiduciary duties, & restrictive
interest policy
covenants
112 Section Nine amended by variation CV2 2021/22, dated 1 April 2021
NHS Employers – VAR02 2021/22
176
DocuSign Envelope ID: 35B47601-E1CA-49EF-B405-3E0F8023715E
L5
Develop a scheme of delegation
30 July
1. Scheme of
NSHC
and organogram showing levels
2010
Delegation (to be
Director of
of authority and lines of reporting
also sent separately
Resources
regarding risk, project, and
to DH)
financial management
2. Organogram
L6
NHS Employers board to satisfy
On-going
1. Copies of Board
NSHC
themselves of the solvency,
minutes
Director of
financial strength and good
Resources
performance of the organisation
L7
NHS Employers’ directors and
30 June
1. Copy of standard
Director
Business Team members to
2011
objective
NHSE
include leading the management
2. List of staff who
of risk in their objectives
have to meet
objective
L8
NHS Employers annual report /
30 July
1. Annual report and
NSHC
accounts to include information
2010
accounts
Director of
about how performance
Resources
evaluation of the board and
directors has been carried out
L9
NHS Employers board to ensure
As required
1. Annual accounts
NSHC
that company complies with
filed within 10
Director of
Company legislation
months of the end of
Resources
the financial year
2. Director
appointments and
terminations notified
to Companies House
within 2 weeks
L10 NHS Employers’ draft board
On-going
1. Website
NSHC
minutes to be made available on
Director of
the NHS Employers’ website
Resources
within 5 working days of the
meeting
PROJECT MANAGEMENT
Action
Target
Evidence
Director
Completion
Lead
Date
P1
All NHS Employers projects to
30 July 2010
1. Project
Director
be managed in accordance with
and on-going
Management policy
NHSE
the NHS Confederation’s project
NHS Employers – VAR02 2021/22
177
DocuSign Envelope ID: 35B47601-E1CA-49EF-B405-3E0F8023715E
management policy and entered
(to be sent
onto projects register which will
separately to DH)
be examined by the NHS
2. Projects register
Employers board no less than 4
3. NHS Employers
x per year
board minutes
P2
All NHS Employers’ projects to
12 July 2010
1. Projects register
Director
complete appropriate project
and on-going
will identify projects
NHSE
documentation which will show:
2. Project
• governance for the project
documentation for
cross-referenced to the scheme
each project will
of delegation to include lines of
confirm compliance
responsibility
• composition of project team
and roles and responsibilities
• budget and source of funding
• cross-reference to the
specification in the Contract or
CV
P3
All projects with a total spend of 12 July and
1. Projects register
NSHC
more than £15k to be signed off
on-going
will identify projects
Director of
by a Director and all projects
with a value of
Resources
with a total spend of more than
>£15k and >£100k
£100k to be signed off by NHS
2. Project
Employers board
documentation will
verify director sign-
off
3. Project
documentation and
NHS Employers
board minutes will
confirm board
signing off
P4
New T&Cs and model of
30 July and
1. Copies of signed
NSHC
appointment to be used for
on-going
T&Cs of all
Director of
any consultants working on
consultants working
Resources
projects to include restrictions to
on projects for NHS
cover confidentiality, use of IP,
Employers cross-
conflict of interest, etc
referenced against
project
documentation
P5
Project proposals outside of DH
21 June and
1. Minutes of board
NSHC
contract agreed by NHS
on-going
meetings
Director of
Employers board with clear
2. Projects register
Resources
NHS Employers – VAR02 2021/22
178
DocuSign Envelope ID: 35B47601-E1CA-49EF-B405-3E0F8023715E
evidence of source of
investment/budget/project team
P6
Any NHS Employers projects
Immediately
1. Examination of
NSHC
undertaken within the scope of
and on-going
projects register to
Director of
the Contract that span more
identify appropriate
Resources
than 2 years or cost over £1m
projects
should have approval of DH
2. Copies of
before the project starts
correspondence
between Employers
and DH re any
projects
P7
NHS Employers to comply with
Immediately
1. Examination of
NSHC
project management policy and
and on-going
projects register
Director of
ensure that any significant
to identify significant
Resources
projects should be subject to
projects
scrutiny independent from the
cross referenced
project team and reported to the
against NHS E
NHS Confederation Corporate
budget
Board
2. Project
documentation to
note independent
scrutiny
3. Minutes from
Corporate Board
meetings
RISK MANAGEMENT
Action
Target
Evidence
Director
Completion
Lead
Date
R1
Communicate via induction
30 July and
1. CE’s note to staff
NSHC
and staff briefings that risk
on-going
2. Intranet article/s
Director of
management is a positive tool
3. Induction materials
Resources
to ensure success
R2
Remind staff and Trustees
30 July and
1. CE’s note to staff
NSHC
about the content of the
on-going
and Trustees
Director of
whistle blowing policy
2. Intranet article/s
Resources
3. Induction materials
R3
NHS Employers to follow
5 July and on-
1. NHS Confederation
Director
policy and process for risk
going
Risk Policy
NHSE
identification and management
to be sent separately
introduced across the
to DH
NHS Employers – VAR02 2021/22
179
DocuSign Envelope ID: 35B47601-E1CA-49EF-B405-3E0F8023715E
Confederation (includes
2. NHS Employers
reference to whistle
Risk Register
blowing).
3. Minutes of NHS
Employers board
meetings
R4
NHS Employers risk register to 29 June and
1. NHS Employers
Director
be submitted FOR REVIEW to on-going
risk register
NHSE
each NHS Employers’ board
2. Board meeting
meeting
minutes
R5
NHS Employers risks to be
29 July and
1. NHS Confederation
NSHC
aggregated with NHS
on-going
risk register
Director of
Confederation risks and
2. Corp Board
Resources
considered by Corporate
meeting minutes
Board
R6
NHS Employers Board to
29 June and
1. NHS Employers
NSHC
monitor mitigating action
on-going
Board minutes
Director of
Resources
R7
Induction process for NHS
31 July 2010
1. Records of who has Director
Employers’ staff to include
and on-going
undergone
NHSE
information on how NHS
induction
Employers/NHS Confederation
2. Information
manages risk
supplied as part of
the induction process
R8
Implement training for NHS
31 July 2010
4. 1. Date of training
NSHC
Employers business team on
5. 2. Training
Director of
how to manage risk (for
materials used
Resources
cascading to staff)
6. 3. Feedback from
participants
FINANCIAL MANAGEMENT
Action
Target
Evidence
Director
Completion
Lead
Date
F1
Management accounts to
On-going
1. Management
NSHC
provide sufficient detail so
accounts referenced
Director of
that NHS Employers board
with projects register
Resources
can understand spend on
projects
F2
NHS Employers to provide a
On-going
1. List and business
NSHC
list of all investments
plan
Director of
alongside business plan
Resources
NHS Employers – VAR02 2021/22
180
DocuSign Envelope ID: 35B47601-E1CA-49EF-B405-3E0F8023715E
F3
Document clear guidelines
5 July 2010
1. Guidelines about
NSHC
about the use of DH
the use of DH
Director of
funds which, for projects or
funds (sent
Resources
work outside of the
separately to DH)
contract, explain the ability to
use DH funding versus
the Confederation’s own
funds/reserves
PART II – GOVERNANCE FOR CONTRACT YEAR 12 ONWARDS.
7.
INTRODUCTION
This Section describes the governance structure and the procedures that will be used to
manage the relationship between the Authority and the Contractor under the Contract.
8.
GOVERNANCE PRINCIPLES
8.1
The Parties shall work together to ensure that:
8.1.1 the Services are provided professionally, and in accordance with the Contract;
8.1.2 the provision of the Services is regularly monitored to ensure compliance with
the service levels and any applicable performance indicators, and that
appropriate timely action is taken to deal with any problems or issues;
8.1.3 the Services are carried out in accordance with the Authority’s regulatory,
compliance, audit and risk management requirements to the extent provided
for in the Contract;
8.1.4 the Contractor undertakes its responsibilities in a timely and professional
manner;
8.1.5 changes are recorded and the Contract is kept up to date and modified as
appropriate and by way of the contract variation procedure set at Clause 8 to
comply with the changing requirements of the Authority;
NHS Employers – VAR02 2021/22
180
DocuSign Envelope ID: 35B47601-E1CA-49EF-B405-3E0F8023715E
8.1.6 the contract variation procedure set at Clause 8 is implemented correctly and
monitored by both Parties;
8.1.7 potential problems and issues are identified early and resolved promptly in a
co-operative manner;
8.1.8 any disputes are resolved quickly, effectively and in a co-operative and
business-like manner;
8.1.9 the Services are carried out in accordance with the standards and the
Authority’s policies and procedures as required by the Contract;
8.1.10 exit management is planned and implemented effectively, giving due
consideration to the terms within clause 29 which apply on expiration or
termination of the Contract; and
8.1.11 a forum for co-operative and pro-active management of the Contract is
established so that the objectives set out in the Contract are consistently
achieved.
9.
ESTABLISHMENT OF THE GOVERNANCE BOARD
9.1
The Contract will be managed at the day to day level through the Contractor’s
Representative and the Authority’s Representative.
9.2
A Governance Board shall be established under the Contract on which both the
Contractor and the Authority shall be represented by such senior representatives as
agreed between the Parties.
9.3
In relation to the Governance Board, the:
9.3.1 Authority Board Members;
9.3.2 Contractor Board Members;
NHS Employers – VAR02 2021/22
181
DocuSign Envelope ID: 35B47601-E1CA-49EF-B405-3E0F8023715E
9.3.3 frequency that the Governance Board shall meet (unless otherwise agreed
between the Parties);
9.3.4 location of the Governance Board's meetings; and
9.3.5 planned start date by which the Governance Board shall be established,
shall be as set out in Part A.
9.4
In the event that either Party wishes to replace any of its appointed Governance Board
Members, that Party shall notify the other in writing of the proposed change for
agreement by the other Party (such agreement not to be unreasonably withheld or
delayed). Notwithstanding the foregoing it is intended that each Authority Board
Member has at all times a counterpart Contractor Board Member of equivalent seniority
and expertise.
9.5
The Governance Board will:
9.5.1 be responsible for the executive management of the Contract;
9.5.2 provide senior level guidance, leadership and strategy in respect of the
provision of the Services;
9.5.3 be the point of escalation from the Authority and Contractor’s Representatives
(where appropriate); and
9.5.4 carry out the specific obligations attributed to it in the Contract.
9.6
Both Parties will ensure that appropriate resource is made available on a regular basis
such that the aims, objectives and specific provisions of the Contract can be fully
realised.
NHS Employers – VAR02 2021/22
182
DocuSign Envelope ID: 35B47601-E1CA-49EF-B405-3E0F8023715E
10.
GOVERNANCE BOARD MEETINGS
10.1
Meetings of the Governance Board will take place at least bi-annually to provide
guidance and direction, reduce operational risks, review financial and service
performance (including, for the avoidance of doubt, performance by the Contractor in
accordance with its obligations under the Contract), manage any changes and resolve
issues and disputes ("Purposes") and the Governance Board will also meet as
necessary to ensure performance of such Purposes.
10.2
Each Party shall ensure that its representative shall make all reasonable efforts to
attend meetings of the Governance Board. If any representative is not able to attend a
Governance Board meeting, that person shall use all reasonable endeavours to ensure
that:
10.2.1 a delegate attends the relevant Governance Board meeting in his/her place
who is (wherever possible) is properly briefed and prepared; and
10.2.2 that he/she is debriefed by such delegate after the Governance Board meeting.
10.3
Meetings of the Governance Board shall be quorate as long as at least one
representative from each Party is present, including for the avoidance of doubt any
replacements for the representatives appointed in accordance with paragraph 4.2.
10.4
The Parties shall ensure, as far as reasonably practicable, that the Governance Board
shall as soon as reasonably practicable resolve the issues and achieve the objectives
placed before them. Each Party shall ensure that members of any boards created are
empowered to make the relevant decisions or have access to empowered individuals
for decisions to be made to achieve this.
11.
CONTRACT MANAGEMENT MECHANISMS
11.1
The Parties will maintain a joint business plan to log continuous improvement and all
key issues relevant to the Contract, including summaries of any benchmark reviews
and changes to the Contract, in sufficient detail to allow the Parties to make
NHS Employers – VAR02 2021/22
183
DocuSign Envelope ID: 35B47601-E1CA-49EF-B405-3E0F8023715E
presentations regarding the Contract, the Services and progress of the same, at the
Governance Board meetings and the Review (as defined below).
11.2
Both Parties will pro-actively manage risks attributed to them under the terms of the
Contract.
11.3
The Contractor will develop, operate, maintain and amend, as agreed with the
Authority, processes for the identification and management of risks, and a risk register
will be completed by the Contractor and submitted for review by both Parties at the
Governance Board meetings.
12.
BI-ANNUAL REVIEWS
12.1
Bi-annual review meetings (each a "Review") shall be held, on a date to be agreed
between the Parties, throughout the Contract Period.
12.2
Each Review will be attended by the Authority’s Representative and the Contractor’s
Representative and any other persons considered by the Authority necessary for the
review. The Contractor may ask the Authority for permission to bring other relevant
parties to the Review. The Authority shall consider each request acting reasonably and
in good faith.
12.3
During each Review meeting the Contract will be reviewed to ensure the terms and
conditions are up to date and the Contract accurately reflects current practice. Any
amendments required will be processed through the process set at Clause 8.
PART A: REPRESENTATION AND STRUCTURE OF BOARDS
Governance Board
Contractor members of Governance Board
CEO of NHS Employers
Director of Employment Relations and
Reward
Director of Development and Employment
Director of Engagement,
Business Planning Manager
NHS Employers – VAR02 2021/22
184
DocuSign Envelope ID: 35B47601-E1CA-49EF-B405-3E0F8023715E
Assistant Director of Finance.
Authority members of Governance Board
Director of Workforce
Operational Contract Manager
Official from the Authority’s Commercial
Directorate
Additional interested parties on Governance NHS England & Improvement People
Board
Directorate
Start Date for Governance Board meetings
1 April
Frequency of Governance Board meetings
At least bi-annually
Location of Governance Board meetings
Either online or at a location to be agreed
by both Parties
NHS Employers – VAR02 2021/22
185
DocuSign Envelope ID: 35B47601-E1CA-49EF-B405-3E0F8023715E
SECTION ELEVEN114
SERVICE CONTINUITY
PLAN
SERVICE CONTINUITY PLAN
1.1
Within forty (40) Working Days from the Variation Date the Contractor shall prepare
and deliver to the Authority for the Authority’s written approval a plan, which shall detail
the processes and arrangements that the Contractor shall follow to:
(a)
ensure continuity of the business processes and operations supported by the
Services following any failure or disruption of any element of the Services
(including where caused by an Insolvency Event of the Contractor and/or any
subsidiary company of the NHS Confederation); and
(b)
the recovery of the Services in the event of a Disaster.
1.2
The Service Continuity Plan shall:
(a)
be divided into four parts:
(i)
Part A which shall set out general principles applicable to the Service
Continuity Plan;
(ii)
Part B which shall relate to business continuity (the “Business
Continuity Plan”);
(iii)
Part C which shall relate to disaster recovery (the “Disaster Recovery
Plan”);
(iv)
Part D which shall relate to an Insolvency Event of the Contractor
and/or any subsidiary company of the NHS Confederation (the
“Insolvency Continuity Plan”); and
114 Section Eleven inserted as per variation CV2 2021/22, dated 1 April 2021
NHS Employers – VAR02 2021/22
189
DocuSign Envelope ID: 35B47601-E1CA-49EF-B405-3E0F8023715E
(b)
unless otherwise required by the Authority in writing, be based upon and be
consistent with the provisions of paragraphs 2, 3, 4 and 5.
1.3
Following receipt of the draft Service Continuity Plan from the Contractor, the Authority
shall:
(a)
review and comment on the draft Service Continuity Plan as soon as
reasonably practicable; and
(b)
notify the Contractor in writing that it approves or rejects the draft Service
Continuity Plan no later than twenty (20) Working Days after the date on which
the draft Service Continuity Plan is first delivered to the Authority.
1.3
If the Authority rejects the draft Service Continuity Plan:
(a)
the Authority shall inform the Contractor in writing of its reasons for its rejection;
and
(b)
the Contractor shall then revise the draft Service Continuity Plan (taking
reasonable account of the Authority's comments) and shall re-submit a revised
draft Service Continuity Plan to the Authority for the Authority's approval within
twenty (20) Working Days of the date of the Authority's notice of rejection. The
provisions of paragraph 1.3 and this paragraph 1.3 shall apply again to any
resubmitted draft Service Continuity Plan, provided that either Party may refer
any disputed matters for resolution by the dispute resolution procedure set out
at Clause 34 at any time.
2
SERVICE CONTINUITY PLAN: PART A – GENERAL PRINCIPLES AND
REQUIREMENTS
2.1
Part A of the Service Continuity Plan shall:
(a)
set out how the business continuity, disaster recovery and insolvency continuity
elements of the plan link to each other;
NHS Employers – VAR02 2021/22
190
DocuSign Envelope ID: 35B47601-E1CA-49EF-B405-3E0F8023715E
(b)
provide details of how the invocation of any element of the Service Continuity
Plan may impact upon the operation of the Services and any services provided
to the Authority by a Related Service Provider;
(c)
contain an obligation upon the Contractor to liaise with the Authority and (at the
Authority's request) any Related Service Provider with respect to issues
concerning business continuity, disaster recovery and insolvency continuity
where applicable;
(d)
detail how the Service Continuity Plan links and interoperates with any
overarching and/or connected disaster recovery, business continuity and/or
insolvency continuity plan of the Authority and any of its other Related Service
Providers in each case as notified to the Contractor by the Authority from time
to time;
(e)
contain a communication strategy including details of an incident and problem
management service and advice and help desk facility which can be accessed
via multi-channels (including but without limitation a web-site (with FAQs), e-
mail, phone and fax) for both portable and desk top configurations, where
required by the Authority;
(f)
contain a risk analysis, including:
(i)
failure or disruption scenarios and assessments and estimates of
frequency of occurrence;
(ii)
identification of any single points of failure within the Services and
processes for managing the risks arising therefrom;
(iii)
identification of risks arising from the interaction of the Services with
the services provided by a Related Service Provider;
(iv)
identification of risks arising from an Insolvency Event of the
Contractor, and/or subsidiary company of the NHS Confederation; and
NHS Employers – VAR02 2021/22
191
DocuSign Envelope ID: 35B47601-E1CA-49EF-B405-3E0F8023715E
(v)
a business impact analysis (detailing the impact on business
processes and operations) of different anticipated failures or
disruptions;
(g)
provide for documentation of processes, including business processes, and
procedures;
(h)
set out key contact details (including roles and responsibilities) for the
Contractor (and any sub-contractors) and for the Authority;
(i)
identify the procedures for reverting to “normal service”;
(j)
set out method(s) of recovering or updating data collected (or which ought to
have been collected) during a failure or disruption to ensure that there is no
more than the accepted amount of data loss and to preserve data integrity;
(k)
identify the responsibilities (if any) that the Authority has agreed it will assume
in the event of the invocation of the Service Continuity Plan; and
(l)
provide for the provision of technical advice and assistance to key contacts at
the Authority as notified by the Authority from time to time to inform decisions
in support of the Authority’s business continuity plans.
2.2
The Service Continuity Plan shall be designed so as to ensure that:
(a)
the Services are provided in accordance with the Contract at all times during
and after the invocation of the Service Continuity Plan;
(b)
the adverse impact of any Disaster; service failure; an Insolvency Event of the
Contractor and/or any subsidiary company of the NHS Confederation; or
disruption on the operations of the Authority, is minimal as far as reasonably
possible;
(c)
it complies with the relevant provisions of ISO/IEC 22301 and all other industry
standards from time to time in force; and
NHS Employers – VAR02 2021/22
192
DocuSign Envelope ID: 35B47601-E1CA-49EF-B405-3E0F8023715E
(d)
there is a process for the management of disaster recovery testing detailed in
the Service Continuity Plan.
2.3
The Service Continuity Plan shall be upgradeable and sufficiently flexible to support
any changes to the Services, to the business processes facilitated by and the business
operations supported by the Services, and/or changes to the NHS Confederation
structure.
2.4
The Contractor shall not be entitled to any relief from its obligations under any
performance indicators or to any increase in the Charges to the extent that a Disaster
occurs as a consequence of any breach by the Contractor of the Contract.
3
SERVICE CONTINUITY PLAN: PART B – BUSINESS CONTINUITY
PRINCIPLES AND CONTENTS
3.1
The Business Continuity Plan shall set out the arrangements that are to be invoked to
ensure that the business processes and operations facilitated by the Services remain
supported and to ensure continuity of the business operations supported by the
Services including, unless the Authority expressly states otherwise in writing:
(a)
the alternative processes (including business processes), options and
responsibilities that may be adopted in the event of a failure in or disruption to
the Services; and
(b)
the steps to be taken by the Contractor upon resumption of the Services in
order to address any prevailing effect of the failure or disruption including a root
cause analysis of the failure or disruption.
3.2
The Business Continuity Plan shall:
(a)
address the various possible levels of failures of or disruptions to the Services;
NHS Employers – VAR02 2021/22
193
DocuSign Envelope ID: 35B47601-E1CA-49EF-B405-3E0F8023715E
(b)
set out the services to be provided and the steps to be taken to remedy the
different levels of failures of and disruption to the Services (such services and
steps, the “Business Continuity Services”);
(c)
specify any applicable performance indicators with respect to the provision of
the Business Continuity Services and details of any agreed relaxation to any
performance indicators in respect of other Services during any period of
invocation of the Business Continuity Plan; and
(d)
clearly set out the conditions and/or circumstances under which the Business
Continuity Plan is invoked.
4
SERVICE CONTINUITY PLAN: PART C – DISASTER RECOVERY
PRINCIPLES AND CONTENTS
4.1
The Disaster Recovery Plan shall be designed so as to ensure that upon the
occurrence of a Disaster the Contractor ensures continuity of the business operations
of the Authority supported by the Services following any Disaster or during any period
of service failure or disruption with, as far as reasonably possible, minimal adverse
impact.
4.2
The Disaster Recovery Plan shall be invoked only upon the occurrence of a Disaster.
4.3
The Disaster Recovery Plan shall include the following:
(a)
the technical design and build specification of the Disaster Recovery System;
(b)
details of the procedures and processes to be put in place by the Contractor in
relation to the Disaster Recovery System and the provision of the Disaster
Recovery Services and any testing of the same including but not limited to the
following:
(i)
data centre and disaster recovery site audits;
NHS Employers – VAR02 2021/22
194
DocuSign Envelope ID: 35B47601-E1CA-49EF-B405-3E0F8023715E
(ii)
backup methodology and details of the Contractor's approach to data
back-up and data verification;
(iii)
identification of all potential disaster scenarios;
(iv)
risk analysis;
(v)
documentation of processes and procedures;
(vi)
hardware configuration details;
(vii)
network planning including details of all relevant data networks and
communication links;
(viii)
invocation rules;
(ix)
Service recovery procedures; and
(x)
steps to be taken upon resumption of the Services to address any
prevailing effect of the failure or disruption of the Services;
(c)
any applicable performance indicators with respect to the provision of the
Disaster Recovery Services and details of any agreed relaxation to any
performance indicators in respect of other Services during any period of
invocation of the Disaster Recovery Plan;
(d)
details of how the Contractor shall ensure compliance with security standards
ensuring that compliance is maintained for any period during which the Disaster
Recovery Plan is invoked;
(e)
access controls to any disaster recovery sites used by the Contractor in relation
to its obligations pursuant to this Section; and
(f)
testing and management arrangements.
NHS Employers – VAR02 2021/22
195
DocuSign Envelope ID: 35B47601-E1CA-49EF-B405-3E0F8023715E
5
SERVICE CONTINUITY PLAN: PART D – INSOLVENCY CONTINUITY PLAN
PRINCIPLES AND CONTENTS
5.1
The Insolvency Continuity Plan shall be designed by the Contractor to permit continuity
of the business operations of the Authority supported by the Services through
continued provision of the Services following an Insolvency Event of the Contractor
and/or any subsidiary company of the NHS Confederation with, as far as reasonably
possible, minimal adverse impact.
5.2
The Insolvency Continuity Plan shall include the following:
(a)
communication strategies which are designed to minimise the potential
disruption to the provision of the Services, including key contact details in
respect of the supply chain and key contact details for operational and contract
Contractor Personnel and personnel of any subsidiary company of the NHS
Confederation;
(b)
identification, explanation, assessment and an impact analysis of risks in
respect of dependencies between the Contractor and subsidiary company of
the NHS Confederation where failure of those dependencies could reasonably
have an adverse impact on the Services;
(c)
plans to manage and mitigate identified risks;
(d)
details of the roles and responsibilities of the Contractor and/or subsidiary
company of the NHS Confederation to minimise and mitigate the effects of an
Insolvency Event of such persons on the Services;
(e)
details of the recovery team to be put in place by the Contractor (which may
include representatives of the Contractor and subsidiary companies of the NHS
Confederation); and
(f)
sufficient detail to enable an appointed insolvency practitioner to invoke the
plan in the event of an Insolvency Event of the Contractor.
NHS Employers – VAR02 2021/22
196
DocuSign Envelope ID: 35B47601-E1CA-49EF-B405-3E0F8023715E
6
REVIEW AND AMENDMENT OF THE SERVICE CONTINUITY PLAN
6.1
The Contractor shall review and update the Service Continuity Plan (and the risk
analysis on which it is based):
(a)
on a regular basis and as a minimum once every six (6) months;
(b)
within three (3) calendar months of the Service Continuity Plan (or any part)
having been invoked pursuant to paragraph 8;
(c)
where the Authority requests any additional reviews (over and above those
provided for in paragraphs 6.1(a) and 6.1(b)) by notifying the Contractor to such
effect in writing, whereupon the Contractor shall conduct such reviews in
accordance with the Authority's written requirements. Prior to starting its review,
the Contractor shall provide an accurate written estimate of the total costs
payable by the Authority for the Authority’s approval. The costs of both Parties
of any such additional reviews shall be met by the Authority except that the
Contractor shall not be entitled to charge the Authority for any costs that it may
incur above any estimate without the Authority’s prior written approval.
6.2
Each review of the Service Continuity Plan pursuant to paragraph 6.1 shall be a review
of the procedures and methodologies set out in the Service Continuity Plan and shall
assess their suitability having regard to any change to the Services or any underlying
business processes and operations facilitated by or supported by the Services which
have taken place since the later of the original approval of the Service Continuity Plan
or the last review of the Service Continuity Plan and shall also have regard to any
occurrence of any event since that date (or the likelihood of any such event taking
place in the foreseeable future) which may increase the likelihood of the need to invoke
the Service Continuity Plan. The review shall be completed by the Contractor within
the period required by the Service Continuity Plan or, if no such period is required,
within such period as the Authority shall reasonably require. The Contractor shall,
within twenty (20) Working Days of the conclusion of each such review of the Service
Continuity Plan, provide to the Authority a report (a “Review Report”) setting out:
(a)
the findings of the review;
NHS Employers – VAR02 2021/22
197
DocuSign Envelope ID: 35B47601-E1CA-49EF-B405-3E0F8023715E
(b)
any changes in the risk profile associated with the Services; and
(c)
the Contractor's proposals (the “Contractor's Proposals”) for addressing any
changes in the risk profile and its proposals for amendments to the Service
Continuity Plan following the review detailing the impact (if any and to the extent
that the Contractor can reasonably be expected to be aware of the same) that
the implementation of such proposals may have on any services or systems
provided by a third party.
6.3
Following receipt of the Review Report and the Contractor’s Proposals, the Authority
shall:
(a)
review and comment on the Review Report and the Contractor’s Proposals as
soon as reasonably practicable; and
(b)
notify the Contractor in writing that it approves or rejects the Review Report and
the Contractor’s Proposals no later than twenty (20) Working Days after the
date on which they are first delivered to the Authority.
6.4
If the Authority rejects the Review Report and/or the Contractor’s Proposals:
(a)
the Authority shall inform the Contractor in writing of its reasons for its rejection;
and
(b)
the Contractor shall then revise the Review Report and/or the Contractor’s
Proposals as the case may be (taking reasonable account of the Authority's
comments and carrying out any necessary actions in connection with the
revision) and shall re-submit a revised Review Report and/or revised
Contractor’s Proposals to the Authority for the Authority's approval within twenty
(20) Working Days of the date of the Authority's notice of rejection. The
provisions of paragraph 6.3 and this paragraph 6.3 shall apply again to any
resubmitted Review Report and Contractor’s Proposals, provided that either
Party may refer any disputed matters for resolution by the dispute resolution
procedure set out at Clause 34 at any time.
NHS Employers – VAR02 2021/22
198
DocuSign Envelope ID: 35B47601-E1CA-49EF-B405-3E0F8023715E
6.5
The Contractor shall as soon as is reasonably practicable after receiving the Authority's
approval of the Contractor's Proposals (having regard to the significance of any risks
highlighted in the Review Report) effect any change in its practices or procedures
necessary so as to give effect to the Contractor's Proposals. Any such change shall be
at the Contractor’s expense unless it can be reasonably shown that the changes are
required because of a material change to the risk profile of the Services.
7
TESTING OF THE SERVICE CONTINUITY PLAN
7.1
The Contractor shall test the Service Continuity Plan on a regular basis (and in any
event not less than once in every Contract Year). Subject to paragraph 7.2, the
Authority may require the Contractor to conduct additional tests of some or all aspects
of the Service Continuity Plan at any time where the Authority considers it necessary,
including where there has been any change to the Services or any underlying business
processes, or on the occurrence of any event which may increase the likelihood of the
need to implement the Service Continuity Plan.
7.2
If the Authority requires an additional test of the Service Continuity Plan, it shall give
the Contractor written notice and the Contractor shall conduct the test in accordance
with the Authority's requirements and the relevant provisions of the Service Continuity
Plan. The Contractor's costs of the additional test shall be borne by the Authority unless
the Service Continuity Plan fails the additional test in which case the Contractor's costs
of that failed test shall be borne by the Contractor.
7.3
The Contractor shall undertake and manage testing of the Service Continuity Plan in
full consultation with the Authority and shall liaise with the Authority in respect of the
planning, performance, and review, of each test, and shall comply with the reasonable
requirements of the Authority in this regard. Each test shall be carried out under the
supervision of the Authority or its nominee.
7.4
The Contractor shall ensure that any use by it or any sub-contractor of “live” data in
such testing is first approved with the Authority. Copies of live test data used in any
such testing shall be (if so required by the Authority) destroyed or returned to the
Authority on completion of the test.
NHS Employers – VAR02 2021/22
199
DocuSign Envelope ID: 35B47601-E1CA-49EF-B405-3E0F8023715E
7.5
The Contractor shall, within twenty (20) Working Days of the conclusion of each test,
provide to the Authority a report setting out:
(a)
the outcome of the test;
(b)
any failures in the Service Continuity Plan (including the Service Continuity
Plan's procedures) revealed by the test; and
(c)
the Contractor's proposals for remedying any such failures.
7.6
Following each test, the Contractor shall take all measures requested by the Authority,
(including requests for the re-testing of the Service Continuity Plan) to remedy any
failures in the Service Continuity Plan and such remedial activity and re-testing shall
be completed by the Contractor, at no additional cost to the Authority, by the date
reasonably required by the Authority and set out in such notice.
7.7
For the avoidance of doubt, the carrying out of a test of the Service Continuity Plan
(including a test of the Service Continuity Plan’s procedures) shall not relieve the
Contractor of any of its obligations under the Contract.
7.8
The Contractor shall also perform a test of the Service Continuity Plan in the event of
any major reconfiguration of the Services or as otherwise reasonably requested by the
Authority.
8
INVOCATION OF THE SERVICE CONTINUITY PLAN
8.1
In the event of a loss of any critical part of the Service or a Disaster, the Contractor
shall immediately invoke the business continuity and disaster recovery provisions in
the Service Continuity Plan, including any linked elements in other parts of the Service
Continuity Plan, and shall inform the Authority promptly of such invocation. In all other
instances the Contractor shall invoke the business continuity and disaster recovery
plan elements only with the prior consent of the Authority.
NHS Employers – VAR02 2021/22
200
DocuSign Envelope ID: 35B47601-E1CA-49EF-B405-3E0F8023715E
8.2
The Insolvency Continuity Plan element of the Service Continuity Plans, including any
linked elements in other parts of the Service Continuity Plan, shall be invoked by the
Contractor:
(a)
where an Insolvency Event of a subsidiary company of the NHS Confederation
(other than the Contractor) could reasonably be expected to adversely affect
delivery of the Services; and/or
(b)
where there is an Insolvency Event of the Contractor and the insolvency
arrangements enable the Contractor to invoke the plan.
NHS Employers – VAR02 2021/22
201
DocuSign Envelope ID: 35B47601-E1CA-49EF-B405-3E0F8023715E
SECTION TWELVE115
CORPORATE SOCIAL RESPONSIBILITY
2
What the Authority expects from its suppliers
1.1
In September 2017, HM Government published a Supplier Code of Conduct setting
out the standards and behaviours expected of suppliers who work with government.
https://www.gov.uk/government/publications/supplier-code-of-conduct
1.2
The Authority expects its suppliers and subcontractors to meet the standards set out
in that Code. In addition, the Authority expects its suppliers and subcontractors to
comply with the standards set out in this Section.
1.3
The Contractor acknowledges that the Authority may have additional requirements in
relation to corporate social responsibility. The Authority expects that the Contractor
and its subcontractors will comply with such corporate social responsibility
requirements as the Authority may notify to the Contractor from time to time.
2.
Equality and Accessibility
2.1
In addition to legal obligations, the Contractor shall support the Authority in fulfilling its
Public Sector Equality duty under S149 of the Equality Act 2010 by ensuring that it
fulfils its obligations under the Contract in a way that seeks to:
2.1.1 eliminate discrimination, harassment or victimisation of any kind; and
2.1.2 advance equality of opportunity and good relations between those with a
protected characteristic (age, disability, gender reassignment, pregnancy and
maternity, race, religion or belief, sex, sexual orientation, and marriage and civil
partnership) and those who do not share it.
2.2
The Contractor shall report on activities undertaken by it to create employment
opportunities (including those aimed at people who are under-represented in the job
115 Section Twelve inserted as per variation CV2 2021/22, dated 1 April 2021
NHS Employers – VAR02 2021/22
202
DocuSign Envelope ID: 35B47601-E1CA-49EF-B405-3E0F8023715E
market, who face particular barriers to employment or who are located in areas of
multiple deprivation) to the Authority.
2.3
The Contractor shall report on activities undertaken by it to support relevant sector
related, sustainable skills growth (including those activities dedicated to school and
college visits e.g. delivering careers talks, curriculum support, literacy support and
safety talks) to the Authority.
3.
Modern Slavery, Child Labour and Inhumane Treatment
"Modern Slavery Helpline" means the mechanism for reporting suspicion, seeking
help or advice and information on the subject of modern slavery available online at
https://www.modernslaveryhelpline.org/report or by telephone on
.
3.1
The Contractor:
3.1.1 shall not use, nor allow its subcontractors to use forced, bonded or involuntary
prison labour;
3.1.2 shall not require any Contractor Personnel or subcontractor to lodge deposits
or identity papers with their employer and shall be free to leave their employer
after reasonable notice;
3.1.3 warrants and represents that it has not been convicted of any slavery or human
trafficking offences anywhere around the world;
3.1.4 warrants that to the best of its knowledge it is not currently under investigation,
inquiry or enforcement proceedings in relation to any allegation of slavery or
human trafficking offenses anywhere around the world;
3.1.5 shall make reasonable enquires to ensure that its officers, employees and
subcontractors have not been convicted of slavery or human trafficking
offenses anywhere around the world;
NHS Employers – VAR02 2021/22
203
DocuSign Envelope ID: 35B47601-E1CA-49EF-B405-3E0F8023715E
3.1.6 shall have and maintain throughout the term of the Contract its own policies
and procedures to ensure its compliance with the Modern Slavery Act and
include in its contracts with its subcontractors anti-slavery and human trafficking
provisions;
3.1.7 shall implement due diligence procedures to ensure that there is no slavery or
human trafficking in any part of its supply chain performing obligations under
the Contract;
3.1.8 shall prepare and deliver to the Authority, an annual slavery and human
trafficking report setting out the steps it has taken to ensure that slavery and
human trafficking is not taking place in any of its supply chains or in any part of
its business with its annual certification of compliance with paragraph 3;
3.1.9 shall not use, nor allow its employees or subcontractors to use physical abuse
or discipline, the threat of physical abuse, sexual or other harassment and
verbal abuse or other forms of intimidation of its employees or subcontractors;
3.1.10 shall not use or allow child or slave labour to be used by its subcontractors;
3.1.11 shall report the discovery or suspicion of any slavery or trafficking by it or its
subcontractors to the Authority and Modern Slavery Helpline.
4.
Income Security
4.1
The Contractor shall:
4.1.1 ensure that that all wages and benefits paid for a standard working week meet,
at a minimum, national legal standards in the country of employment;
4.1.2 ensure that all Contractor Personnel are provided with written and
understandable information about their employment conditions in respect of
wages before they enter;
4.1.3 all workers shall be provided with written and understandable Information about
their employment conditions in respect of wages before they enter employment
NHS Employers – VAR02 2021/22
204
DocuSign Envelope ID: 35B47601-E1CA-49EF-B405-3E0F8023715E
and about the particulars of their wages for the pay period concerned each time
that they are paid;
4.1.4 not make deductions from wages:
(a)
as a disciplinary measure;
(b)
except where permitted by law; or
(c)
without expressed permission of the worker concerned;
4.1.5 record all disciplinary measures taken against Contractor Personnel; and
4.1.6 ensure that Contractor Personnel are engaged under a recognised employment
relationship established through national law and practice.
5.
Working Hours
5.1
The Contractor shall:
5.1.1 ensure that the working hours of Contractor Personnel comply with national
laws, and any collective agreements;
5.1.2 that the working hours of Contractor Personnel, excluding overtime, shall be
defined by contract, and shall not exceed 48 hours per week unless the
individual has agreed in writing;
5.1.3 ensure that use of overtime used responsibly, taking into account:
(a)
the extent;
(b)
frequency; and
(c)
hours worked;
NHS Employers – VAR02 2021/22
205
DocuSign Envelope ID: 35B47601-E1CA-49EF-B405-3E0F8023715E
by individuals and by the Contractor Personnel as a whole.
5.2
The total hours worked in any seven day period shall not exceed 60 hours, except
where covered by paragraph 5.3 below.
5.3
Working hours may exceed 60 hours in any seven day period only in exceptional
circumstances where all of the following are met:
5.3.1 this is allowed by national law;
5.3.2 this is allowed by a collective agreement freely negotiated with a workers’
organisation representing a significant portion of the workforce; appropriate
safeguards are taken to protect the workers’ health and safety; and
5.3.3 the employer can demonstrate that exceptional circumstances apply such as
unexpected production peaks, accidents or emergencies.
5.4
All Contractor Personnel shall be provided with at least one (1) day off in every seven
(7) day period or, where allowed by national law, two (2) days off in every fourteen (14)
day period.
6.
Sustainability
6.1
The Contractor meet the applicable Government Buying Standards applicable to
Deliverables
which
can
be
found
online
at:
https://www.gov.uk/government/collections/sustainable-procurement-the-
government-buying-standards-gbs
NHS Employers – VAR02 2021/22
206
DocuSign Envelope ID: 35B47601-E1CA-49EF-B405-3E0F8023715E
SECTION THIRTEEN116
COMMERCIALLY SENSITIVE INFORMATION
116 Section Thirteen inserted as per variation CV2 2021/22, dated 1 April 2022
NHS Employers – VAR02 2021/22
207
SECTION FOURTEEN117
CONTRACT PRICE
This Section details the Contract Price each year, from Contract Year 12 onwards. This
Section will be reviewed and amended by the Parties once each Contract Year at the time
when the Contract Price is determined in accordance with Clause 5, or at such other times
or intervals as may be agreed in writing between the Parties.
Contract Year
Contract Price
Contract Year 12 – 2021-2022
£9,219,219.60
April 2010
Appendix 2 – Interviews carried out 22
Document Outline
