Newlon Housing TrustAdditional conditions of contract - PSC

Professional Services Contract

Door Entry Consultancy Services –Newlon Housing Trust

Additional conditions of contract

The Z clauses as referenced
in the Contract Data Part 1

Precedent Version – 14May 2014

Note (for ITT version):

Notes in blue in solid boxes are intended for guidance and will not form part of the final contract documentation.

Remove this text box and all text in boxes with dashed outline before issuing for tender

Guidance to drafters using this precedent

This document details amendments to a standard Option A/C/E/G Professional Services Contract.

It is recommended that notes in blue are left in for the issued tender documentation to demonstrate “mutual trust and co-operation” in explaining amendments

Notes in red in boxes with dashed outlines are intended for guidance for drafters and should be removed before issue.

Clauses in redmay well be required but need considering for the particular contract. Their use should be used with care and they may need definitions to be removed if they are not used

Clauses in brown are not usually required. Consider carefully and do not use without further review

Specific details

The use of X20 has not been considered in these clauses. If it is, note that the standard clauses reflect financial reward for achieving the KPIs which may not be intended. Similarly, if it is ever intended that KPIs are used to measure performance to establish grounds for termination, this would also need adding to the 90 series termination events.X20.

No other form of incentivisation has been added.

There are no clauses covering TUPE as this is considered unlikely to be applicable in these contracts.

Options C and E are not true cost re-imbursable strategies like the ECC/TSC – the actual cost of staff is still calculated by regard to staff rates (Time Charge) rather than open book accounting true cost. No reference to open book or Defined Cost has therefore been included. No requirement that a Subconsultant must be on a Time Charge basis if the main consultant is on an Option C or E contract is included – this would need placing in the Scope.

Any specific quality assurance requirements must be in Scope as must any requirements for employment and training.

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ADDITIONAL CONDITIONS OF CONTRACT

z clauses

Contents

Z1 / Amendments to Core and Main Option clauses
Z2 / Amendments to Secondary Option clauses
Z3 / Consultant’s obligations
Z4 / Exclusivity and work content
Z5 / Employer Data
Z6 / Best Value
Z7 / Consultant’s employees and personnel
Z8 / Health and safety
Z9 / Equality and diversity
Z10 / Confidentiality
Z11 / Data protection
Z12 / Consultant to comply with special requirements in relation to statutory bodies
Z13 / Business continuity planning
Z14 / Corrupt gifts and payments of commission
Z15 / Probity
Z16 / Audit and inspection
Z17 / Housing Ombudsman
Z18 / Complaints about service provision
Z19 / No partnership or agency
Z20 / Assignment
Z21 / Employer training
Z22 / Employment and training

Clauses changed, added or deleted through Z1 and Z2 where they differ from the standard PSC.

Standard NEC TSC clause / Extra NEC TSC clause / Amended / Deleted / Deleted and replaced / New
11.2(14 to 26) / Z1
12.5 / Z1
12.6 / Z1
12.7 / Z1
12.8 / Z1
24.3 / Z1
26.4 / Z1
60.1(13) / Z1
62.2 / Z1
70.5 / Z1
71.1 / Z1
90.6 / Z1
90.7 / Z1
91.2 / Z1
92.3 / Z1
W2.1(3) / Z2
Amendments to Core and Main Option clauses / Z1
Z1.1 / The following amendments and additions are made to the Core and Main Option clauses:
Clause 11.2
11.2(14) / Add new clause 11.2(14)
“The Business Continuity Plan is a plan showing how the Consultant can continue to Provide the Services throughout the first week after any incident that disrupts the Consultant’s normal operations including a fire or the loss of electrical power to the Consultant’s or a Subconsultant’s premises.”
11.2(15) / Add new clause 11.2(15)
“Codes of Practice is all Codes of Practice and Guidance issued by the Information Commissioner or the Ministry of Justice under the DPA.”
11.2(16) / Add new clause 11.2(16)
“Confidential Information is any information which has been notified as confidential by either Party to the other or which ought to be considered as confidential (however it is communicated or on whatever media it is stored) including information relating to the business, affairs, properties, assets, trading practices, services, developments, trade secrets, patents or copyright or other intellectual property rights, know-how, personnel, customers and suppliers of either Party and all Personal Data and sensitive personal data (within the meaning of the DPA).”
11.2(17) / Add new clause 11.2(17)
“Contract Manager is the Consultant’s service manager.”
11.2(18) / Add new clause 11.2(18)
“Data Controller has the meaning given in the DPA.”
11.2(19) / Add new clause 11.2(19)
“Data Subject has the meaning given in the DPA.”
11.2(20) / Add new clause 11.2(20)
“DPA is the Data Protection Act 1998.”
11.2(21) / Add new clause 11.2(21)
“The Employer Data are all data, information, text, drawings, diagrams, images, records or sound embodied in any electronic or tangible medium which the Employer supplies or gives access to the Consultant under this contract or which the Consultant produces or obtains under this contract.”
11.2(22) / Add new clause 11.2(22)
“The End Date is the earlier of the end of the contract period or the termination date.”
11.2(23) / Add new clause 11.2(23)
“Intellectual Property Rights is all intellectual property rights including, patents, trademarks, designs, design rights, database rights, copyright, inventions, trade secrets, know-how and confidential information.”
11.2(24) / Add new clause 11.2(24)
“Personal Data has the meaning given in the DPA.”
11.2(25) / Add new clause 11.2(25)
“ROA 1974 is the Rehabilitation of Offenders Act 1974.
11.2(26) / Add new clause 11.2(26)
“Subject Access Request has the meaning given in the DPA.”
Clause 12.5
/ Add new clause 12.5
“The term "including" does not limit the breadth of the words which precede it and the ejusdem generis rule of legal construction does not apply to this contract.”
Clause 12.6 / Add new clause 12.6
“The applicable law includes any statute, subordinate legislation, enforceable European community right and any statutory guidance, directions, determinations, or codes of practice having the force of law together with any amendment or modification to it.”
Clause 12.7 / Add new clause 12.7
“If a Party
  • fails to exercise or delays in exercising any right, power or remedy, this is not a waiver of that right, power or remedy, or
  • exercises or partially exercises a right, power or remedy, this does not prevent a further exercise of that right, power or remedy.”

Clause 12.8 / Add new clause 12.8
“Nothing in this contract requires the Employer to do anything which is contrary to the Employer's obligations as a charitable registered provider. Subject to this each Party executes all further documents and does all acts necessary to give effect to this contract."
Clause 24.3 / Delete the existing clause 24.3
Replace with
“The Consultant submits the proposed conditions of contract for each subcontract to the Employer for acceptance unless the Employer has agreed that no submission is required.
The Consultant does not appoint a Subconsultant on the proposed subcontract conditions submitted until the Employer has accepted them. A reason for not accepting them is that
  • they will not allow the Consultant to Provide the Services,
  • they do not include a statement that the parties to the subcontract shall act in a spirit of mutual trust and co-operation,
  • they do not provide for any required collateral warranties,
  • they include unacceptable termination provisions,
  • they do not include the obligations on the Subconsultant that this contract requires are imposed on the Subconsultant,
  • they do not secure similar rights of access for the Employer, his auditors or anyone with a statutory or other legal right to inspect or audit the Employer for the purpose of conducting any audit investigation of the contract similar to those applying to the Consultantor
  • they do not include provisions having substantially the same effect as those applying to the Consultant under this contract.”

Clause 26.4
/ Add a new clause 26.4
“The Employer may, having stated his reasons, instruct the Consultant to remove a Subconsultant.”
Clause 60.1
60.1(13) / Add a new compensation event (13)
(13) The Employer instructs the removal of a Subconsultant unless the instruction is because
  • the Subconsultant is in material breach of the subcontract,
  • the Subconsultant has failed to comply with this contract in providing the part of the services he is to provide,
  • the Subconsultant has substantially failed to provide the part of the services he is to provide,
  • the Subconsultant has breached health and safety legislation or
  • the Subconsultant, an employee of the Subconsultant engaged in Providing the Services or a director or senior manager of the Subconsultant is convicted of a criminal offence.

Clause 62.2 / Add second paragraph
“If the Consultant and Employer agree, the effect of a single or group of minor compensation events is evaluated in the next revised programme.
If Option X9 is NOT used
,
Clause 70.5 / Add new clause 70.5
“The right to use the material provided by one Party to the other is in the form of an irrevocable, non-exclusive, royalty-free licence (including the right to grant sub-licences) to copy, use, adapt and modify all designs and documents he makes available in connection with this contract.”

Or, if Option X9 is used
,
Clause 70.5 / Add new clause 70.5
“The right to use the material provided by the Employer to the Consultantis in the form of an irrevocable, non-exclusive, royalty-free licence (including the right to grant sub-licences) to copy, use, adapt and modify all designs and documents he makes available in connection with this contract.”
Clause 71.1 / Delete existing clause 71.1
Replace with
“The Consultant may publicise the services, and ensures that his Subconsultants publicise the services, only with the Employer’s written permission.”
Clause 90.6 / Add new clause 90.6
“The Employermay terminate the Consultant’s obligation to Provide the Services by notifying the Consultant if
  • the Consultant or anyone employed by him or a Subconsultant or anyone acting on the Consultant’s or Subconsultant’s behalf (whether without or with the knowledge of the Consultantor the Subconsultant) commits any offence under the Bribery Act 2010 or
  • the Consultantbreaches his obligations relating to bribes, gifts, considerations, financial advantages or payments of undisclosed commission.”

Clause 90.7 / Add new clause 90.7
“The Employer may terminate if
  • the Consultant or anyone employed by him or a Subconsultant or anyone acting on the Consultant’s or Subconsultant’s behalf (whether without or with the knowledge of the Consultant or the Subconsultant) commits any offence under the Employment Relations 1999 Act (Blacklists) Regulations or section 137 of the Trade Union and Labour Relations (Consolidation) Act 1992 or
  • the Consultant or anyone employed by him or a Subconsultant or anyone acting on the Consultant’s or Subconsultant’s behalf (whether without or with the knowledge of the Consultant or the Subconsultant) commit any breach of the Data Protection Act 1998 by unlawfully processing personal data in connection with any blacklisting activities.”

Clause 91.2 / Add new clause 91.2
"Termination of this contract is without prejudice to
  • the rights and duties of each Party up to the date of termination,
  • any rights accrued to either Party at the date of termination, and
  • any terms of this contract that are intended to survive its termination."

Clause 92.3 / Add new clause 92.3
“If the Employer terminates for breach of the prohibitions on bribes, gifts, considerations, financial advantages or payments of undisclosed commission received by the Consultant or anyone employed by him or acting on his behalf the amount due on termination includes a deduction of an amount equal to the amount or value of any bribes, gifts, considerations, financial advantages or payments of undisclosed commission received by the Consultant.”
Amendments to Secondary Option clauses / Z2
Z2.1 / The following amendments and additions are made to the Secondary Option clauses:
Option W2
Clause W2.1(3) / Add new clause W2.1(3)
“Subject to the rights of the Parties to refer a dispute to the Adjudicator at any time, the Parties agree that in the event of any dispute or difference arising between them in relation to this contract they will seek to resolve any such dispute or difference
  • by agreement in accordance with the provisions of this contract and in particular in the spirit of clause 10.1 and
  • through the use of the dispute resolution escalation procedure in the Scope.”

Other special Clauses /
Consultant’s obligations / Z3
Z3.1 / The Consultant does not receive any additional payment for performing these clauses Z3 to Z22.
Exclusivity and work content / Z4
Z4.1 / This contract does not prevent the Employer doing or contracting for similar work with his own labour or Others. The Consultant has no claim for additional costs where the Employer does or contracts for similar work.
Z4.2 / The Employer gives no representations or warranties to the Consultant about the amount or value of work he will instruct the Consultant to do under this contract. Any indications of these amounts or values in the Scope or other documentation about the services are estimates only.
Z4.3 / The Consultant has no claim for loss of profit or loss of business or otherwise if the services or any part of the services is less in amount or value or scope than anticipated.
Employer Data / Z5
Z5.1 / The Consultant acts as bailee of any Employer Data and stores it safely and separately from any data not relating to the services and in a manner which makes it readily identifiable as Employer Data.
Z5.2 / The Consultant acknowledges that the Employer Data belongs solely to the Employer. The Consultant does not delete or remove any copyright notices contained in or relating to the Employer Data.
Z5.3 / The Consultant takes all steps necessary to ensure that he can restore or procure the restoration of the Employer Data if it is lost or corrupted. If the Employer Data is lost or corrupted and the Employer so requests the Consultantrestores or procures the restoration of the Employer Data to its state immediately before the corruption or loss.
Z5.4 / Subject to the Intellectual Property Rights, ownership in all Employer Data including existing documents and the physical embodiments of designs relating to this contract, transfers from the Consultant to the Employer on the End Date. Following the End Date, the Consultant hands over all such Employer Data to the Employer immediately upon request.
Z5.5 / The Consultant ensures that the Employer is able to use any software necessary to access and use the Employer Data after the End Date. If the Employer so requires the Consultant enters into an escrow agreement in the standard form of National Computer Centre Limited (or such other industry standard body the Employer approves) to protect the Employer’s access to any software in which the Consultant owns the Intellectual Property Rights.
Best Value / Z6
Z6.1 / The Consultant throughout the contract period but only to the extent of his obligations in this contract
  • makes arrangements to secure a continuous improvement in the way the Consultant and his Subconsultants (if any) Provide the Services having regard to a combination of economy efficiency and effectiveness and
  • actively seeks to enable the Employer to achieve the highest possible rating from the Homes and Communities Agency at inspection in relation to the services.

Z6.2 / If the Employer reasonablyso requests, the Consultant undertakes or refrains from undertaking any actions to enable the Employer to achieve the highest possible rating from the Homes and Communities Agency at inspection in relation to the services. This includes
  • supporting and assisting the Employer to meet this objective through the way the Consultant Provides the Services and
  • complying with requests from the Employer for information, data or other assistance in relation to this objective.

Consultant’s employees and personnel / Z7
/ Z7.1 / The Consultantsubmits to the Employer details of people who are to be employed by him and his Subconsultants in connection with the servicesand ensures that each such person has obtained and provided to the Consultant a check, of the most extensive kind available to them, from the Disclosure and Barring Service. The details submitted include
  • a list ofnames and addresses,
  • the capacities in which they are employed,
  • any relevant criminal convictions of which the Consultant is aware, about an employee, Subconsultant or employee of a Subconsultant and
  • other information required by the Employer.

Z7.2 / The Consultant informs the Employer of any relevant criminal convictions of an employee, Subconsultant or employee of a Subconsultant used in Providing the Services of which the Consultant becomes aware during the contract period.
/ Z7.3 / If the nature of the services or Providing the Services means that any employee, Subconsultantor any employee of a Subconsultant is exempt from the restriction on disclosing spent convictions under Regulation 4(2) of the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 the Consultant ensures that that employee or Subconsultantprovides information in accordance with the ROA 1974 and the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 about any convictions which would otherwise be deemed to be spent.
Z7.4 / If the Employer so requires, the Consultant (at his own risk) removes any employee, Subconsultant or employee of a Subconsultant who has a criminal conviction from Providing the Services.
Z7.5 / The Consultant ensures that his and his Subconsultant’s employees comply with the Employer’s reasonable requirements for identification, dress code, conduct and security whilst they are Providing the Services.
Z7.6 / If the Employer requires passes to be issued, the Consultant gives a list of the names of the people for whom passes are required to the Employer. The Employer issues the passes to the Consultant. Each pass is returned to the Employer when the employee is no longer Providing the Services or after the Employer has given notice that the employee is to be removed from Providing the Services.
Z7.7 / The Consultant ensures that there is an adequate number of suitably skilled, experienced, qualified and competent employees Providing the Services. The Consultant does not relocate key persons to other work without the approval of the Employer.