DRUG INTERVENTION PROGRAMME
CONTRACT
PRELIMINARY... 15
1 DEFINITIONS... 15
2 INTERPRETATION ... 19
3 COMMENCEMENT AND DURATION... 19
4 OBLIGATIONS PRIOR TO COMMENCEMENT DATE ... 20
5 SERVICE STANDARD ... 20
6 ENTIRE AGREEMENT... 21
7 ASSIGNMENT AND SUB-CONTRACTING... 21
8 AGENCY... 21
CONTRACT MANAGEMENT ... 21
9 THE AUTHORISED OFFICER ... 21
10 THE CONTRACT MANAGER ... 22
11 CONTRACT STEERING GROUP... 22
12 SERVICE REVIEW ... 22
13 MONITORING BY SERVICE PROVIDER ... 23
14 CHANGE CONTROL... 23
15 RELIEF EVENTS ... 24
16 PROTECTION OF INDIVIDUAL SERVICE USERS ... 25
17 BEST VALUE AND SERVICE IMPROVEMENT... 25
CONTRACT PRICE AND PAYMENTS... 25
18 CONTRACT PRICE ... 25
19 VAT PAYMENT... 26
20 ANNUAL REVIEW OF CONTRACT PRICE ... 26
21 LATE PAYMENT ... 27
22 RIGHT OF SET-OFF... 27
STAFF ... 27
23 STAFF ... 27
24 STAFF CHECKS... 28
25 STAFF TRAINING AND RECORDS ... 28
26 COUNCIL’S EMPLOYEES ... 28
27 SERVICE PROVIDER’S EMPLOYEES... 28
INFORMATION ... 29
28 CONFIDENTIALITY ... 29
29 FREEDOM OF INFORMATION... 29
30 DATA PROTECTION ACT... 30
31 RECORDS AND ACCOUNTS... 30
32 SERVICE USER INFORMATION ... 30
GENERAL CONTRACT TERMS ... 31
33 SERVICE PROVIDER’S INDEMNITY ... 31
34 COUNCIL’S LIABILITY... 31
36 ADVERTISING ... 32
37 AMENDMENTS ... 33
38 AUDIT ACCESS... 33
39 COMPLIANCE WITH LAW... 33
40 CONFLICT OF INTEREST... 33
41 CO-OPERATION WITH OTHERS ... 33
42 DIVERSITY AND EQUAL OPPORTUNITIES ... 33
43 EMERGENCIES ... 34
44 ENVIRONMENT PROTECTION... 34
45 GRATUITIES ... 34
46 EVIDENCE IN CONNECTION WITH LEGAL PROCEEDINGS ... 35
47 FORCE MAJEURE... 35
48 HEALTH & SAFETY ... 35
49 HUMAN RIGHTS ... 36
50 LAW AND JURISDICTION ... 36
51 PUBLICITY ... 36
52 REMEDIES CUMULATIVE ... 36
53 NOTICES ... 36
54 SEVERABILITY ... 37
55 THIRD PARTY RIGHTS ... 37
56 TUPE ... 37
57 WAIVER ... 38
DEFAULTS AND DISPUTES ... 39
58 DISPUTE RESOLUTION ... 39
59 DEFAULTS ... 40
60 PERSISTENT DEFAULT / FAILURE TO PUT RIGHT A DEFAULT... 40
61 SUSPENSION ... 41
TERMINATION ... 42
62 TERMINATION FOR CAUSE ... 42
63 BREAK ... 43
64 TERMINATION BY SERVICE PROVIDER ... 44
65 CONSEQUENCES OF TERMINATION ... 44
66 DUTY TO CO-OPERATE... 44
THE SERVICES ... 46
1 INTRODUCTION ... 46
2 GENERAL DESCRIPTION OF THE SERVICES ... 46
4 SERVICES TO BE PROVIDED/CORE SERVICE FUNCTIONS... 48
7 OUTCOMES ... 55
8 SERVICE VOLUMES ... 55
9 SERVICE USER ELIGIBILITY ... 55
11 RISK ASSESSMENTS ... 56
12 INFORMATION AND RECORDS... 57
13 POLICIES AND PROCEDURES ... 58
14 RECRUITMENT AND SELECTION OF STAFF ... 58
15 CONDUCT OF STAFF ... 58
16 COMPLAINTS PROCEDURE ... 59
17 UNTOWARD INCIDENTS ... 59
18 WHISTLE BLOWING ... 60
19 CONTRACT STEERING GROUP... 60
20 MONITORING THE SERVICE... 60
21 PERFORMANCE REVIEW. ... 60
22 SUSPENSION OF THE SERVICE... 61
23 DISPUTE RESOLUTION ... 61
24 TERMINATION... 61
PAYMENTS AND BUDGET ISSUES ... 61
25 BUDGET ... 61
PROPERTY MATTERS ... 62
26 LANDLORD ISSUES... 62
OTHER MATTERS... 63
27 CORPORATE IDENTITY ... 63
28 RELATIONSHIP WITH COUNCILLORS AND COUNCIL EMPLOYEES... 63
APPENDIX A – LIST OF AUTHORISED OFFICERS ... 65
APPENDIX B – REPORTING ABUSE POLICY... 66
APPENDIX C – CORE/DEPARTMENT SERVICE STANDARDS... 67
APPENDIX D - CONFIDENTIALITY ... 70
APPENDIX E - COMPLAINTS PROCEDURES ... 72
APPENDIX F – TUPE INFORMATION... 78
SCHEDULE A - PROPOSALS (INCLUDING MEANS OF DELIVERY) ... 80
SCHEDULE B - SCHEDULE OF RATES ... 81
SCHEDULE C - CERTIFICATE RELATING TO PUBLIC LIABILITY /THIRD PARTY RISK INSURANCES ...82
SCHEDULE D - CERTIFICATE RELATING TO EMPLOYER’S LIABILITY INSURANCE ... 83
SCHEDULE E - SERVICE PROVIDER’S TENDER DECLARATION ... 84
SCHEDULE F - SERVICE PROVIDER’S NON COLLUSION CERTIFICATE... 85
SCHEDULE G - TUPE INFORMATION - CONFIDENTIALITY AGREEMENT ... 86
GENERAL INFORMATION AND INSTRUCTIONS TO SERVICE PROVIDERS
1 Invitation to Tender
1.1 The Royal Borough of Kensington and Chelsea (the Council) invites Tenders for the provision of its Drug Intervention Programme (DIP) services in accordance with this Invitation to Tender and the attached documents. For more information on DIP please refer to:
http://drugs.homeoffice.gov.uk/drug-interventions-programme/ 1.2 The contract will be awarded for three years.
1.3 In accordance with the Council’s Contract Regulations, the Council will select a Service Provider for this Service by competitive tender. The tendering process will be conducted in accordance with EU rules for tendering for Service (open procedure).
1.4 The fact that an organisation has been invited to submit a Tender does not necessarily mean that it has satisfied the Council regarding any matters raised in the questionnaire submitted and, notwithstanding having been invited to tender, the Council makes no representations regarding the Tenderer's financial stability, technical competence or ability in any way to carry out the Services. The right to return to any matter raised in the questionnaire as part of the formal tender evaluation process is hereby reserved to the Council.
2 STRUCTURE OF DOCUMENTS
2.1 There are six documents, consisting of:-
a. General Information and Instructions to the Service Provider – contains general advice on the process including the Council’s general tendering requirements and other information on the tendering process. b. Questionnaire (Part 2) - contains questions to enable the Council
decide the knowledge and expertise of the provider in delivering the type of service requested.
c. Conditions of Contract – these conditions are based upon the Council’s standard conditions applying to all contracts and are not open to negotiation.
d. Specification - this details the requirements for the contract for the Drug Intervention Programme.
e. Appendices - additional information supplied by the Council.
f. Schedules - information required to be submitted by Tenderer at the time of making your submission. The Tenderer shall also provide details of procedures and core policies.
3 COSTS AND EXPENSES OF TENDER
3.1 The Tenderer is responsible for preparing all information necessary for the preparation of its Tender and all costs, expenses and liabilities incurred by the Tenderer in connection with the preparation and submission of the Tender shall be borne by the Tenderer.
3.2 Prospective Tenderers shall ensure that they are familiar with the nature and extent of the obligations they will incur if their Tender is accepted
4 THE TRANSFER OF UNDERTAKINGS (PROTECTION OF EMPLOYMENT) REGULATION 2006
4.1 The Council is of the preliminary view that the Transfer of Undertakings (Protection of Employment) Regulations 2006 may apply in respect of employees currently engaged in the provision of the Services
4.2 Each Tenderer must satisfy himself as to whether or not in his view the TUPE Regulations will apply, having regard to his proposals for the delivery of the Service which are the subject of the tender. Tenderers are advised to seek independent professional advice on the consequences for them if they are the successful Tenderer and the TUPE Regulations are held to be applicable. The Council make no assurances or representations about the applicability or effect of the Regulations.
4.3 The Council has obtained from the current Service Provider details about the staff whom that Service Provider says currently perform the Service, the subject of this Invitation to Tender.
4.4 Staff information can be obtained from the Council by signing and returning the confidentiality undertaking Schedule G to:
Gregory Alake Contract Officer
Royal Borough of Kensington and Chelsea Town Hall, Hornton Street
London. W8 7NX
Telephone 020-7361-2360
Fax 020-7361-2922
Email [email protected]
5 SUBMISSION DOCUMENTATION
5.1 In order to make a valid submission the Tenderer is required to submit: -
a. Means of Delivery (Schedule A) - This statement should summarise how the Tenderer proposes to deliver the Service.
b. Costings for the first year of Service (Schedule B) - This statement should include a full breakdown of the costs and assumptions made for the first year’s Service.
c. Certificate confirming that you will take out Public Liability/Third Party Risk Insurance and Employers Liability Insurance as specified prior to commencement of the contract (Schedule C)
d. Tenderer’s tender declaration (Schedule D). e. TUPE Confidentiality Agreement (Schedule E)
5.2 In making their submissions the Tenderer is requested that all cost information be given in Schedule B and D. No reference should be given in any other schedule or covering letter regarding cost.
6 MEANS OF DELIVERY
6.1 The aim of the Means of Delivery statement is to summarise how the Tenderer proposes to deliver the Service. The following issues should be addressed: -
Service Delivery
a. How the Tenderer proposes to operate the Contract. Tenderer should note that the Specification should not be repeated but they should identify how they intend to meet the service requirements set out in the Specification;
b. How the Tenderer proposes to demonstrate that the service standards/ outcomes detailed in the Specification are met;
c. How the Service is to be co-ordinated and monitored, including without limitation proposals for managing referrals and discharges to/from the service;
d. The Tenderer strategies for delivering the service within the contract price and controlling costs over the contract period.
e. The Tenderer should identify within their submission details of how they intend to implement the specification requirements with respect to the various procedures required and the timescales for their introduction. Staffing
a. Details of the staffing and management structure proposed and how the Service fits into the Tenderer’s organisation and defines how the Service would be managed and staff supervised;
b. The Tenderer should provide example job descriptions and person specifications for workers providing services, identifying the skills and level of experience required of the staff;
c. The proposed location of staff and manager’s base and the premises from where services would be provided and how these would meet the needs of the Service
d. Details of the roles to be undertaken by Manager of the Service;
e. The Tenderer’s proposals for ensuring that no member of Staff is employed in the performance of the Service without first having a satisfactory criminal record certificate and written policies on the recruitment of ex offenders
f. The Tenderer’s proposals for managing staff vacancies and recruitment difficulties;
Monitoring
a. How the Tenderer proposes to involve the Service Users in service delivery and monitoring;
Policy and Procedures
a. The Tenderer’s proposals to meet the requirements of a sensitive service;
b. How risk assessments (including Health and Safety and manual handling) will be undertaken;
Added Value
a. Under the requirements of the Local Government Act 1999 (Best Value) the Council will be undertaking regular reviews of the Service. In pursuit of continuous service improvement the Council will be seeking a commitment from the successful Tenderer to provide information and participate in those reviews and be prepared to introduce changes in the interests of economy, efficiency and effectiveness;
b. The Tenderer should also identify other activities which are accessible to Service Users but are not funded by this contract.
6.2 In addition to the above information Tenderers should review the information submitted in their questionnaire in terms of experience with specific reference to the clients groups being served under this contract., for example intervention programme. Tenderers may submit additional information that clearly demonstrates their ability to deliver a successful service.
6.3 References will be sought and will be used in the assessment process. Please review names of referees and up date accordingly.
7 COSTINGS
7.1 The costs must be fully inclusive for the first year budget (i.e. 2008/9).
7.2 Where a Tenderer proposes to use resources from another contract or grant the Tenderer must clearly detail the level of resources, the cost of these resources, the length of time the resources are secured for and what happens if the resources are withdrawn.
7.3 If it is proposed by the Tenderer that staff resources (including management) to be used within the Service are already funded by other contracts or grants then the Tenderer must identify within its submission details of any discussions and agreements you may have entered into with existing funders, for resources to be used for the benefit of the contract in this way.
7.4 The budget shall be made up of the following elements:- Staffing Costs (including Manager)
This shall consist of the total salary expenditure including national insurance and pension contributions. Details of grades and pay per staff member shall be provided. The Tenderer shall include an allowance for holidays, sickness and other absences.
Running Costs
Shall consist of all office costs including such items as:- organisational management costs
training expenses
subsistence allowances
routine recruitment costs
accommodation (including rent) equipment
insurance
Management overheads
This should be expressed as a percentage of the total budget and this shall be fixed throughout the Contract period. Management costs include such items as supervision (not included elsewhere) and payroll costs.
Exceptional Costs
Shall consist of such items as the cost related to an increase or decrease in staff required to undertake the Service and one-off establishment costs.
7.5 The Tenderer should state service outputs in terms of weekly contact time with individual Service Users. Please indicate how much of this is face to face contact time.
8 INFLATION
Inflation adjustments in accordance with the provisions of the contracts will be applied from April 2009, with the effect that there is no increase for 2008/9/first year of service.
9 CRITERIA
9.1 The Council reserves the right to reject any tender which does not return full documentation or if any of the acts or matters set out in paragraph 11 below. 9.2 Your submission will be examined against the following criteria:-
Means of Delivery Service Delivery Staffing
Monitoring
Policy and Procedures Added Value
Costings and Service Outputs Experience and references
9.3 The Council has set weightings and minimum threshold for each of these criteria. The Council requires that Tenderers are at least satisfactory in each of these areas and therefore shall in all events reserve the right to reject any Tender that does not achieve a score in all of the areas which is in excess of the threshold for that area regardless of whether, for example, the tender has achieved a good or the best winning score overall. Details of the weightings and minimum thresholds are listed below:
Tender evaluation criteria and scoring
Each Tender will be scored initially by the evaluation team against each of the evaluation areas.
To ensure the relative importance of the evaluation criteria are correctly reflected in the overall scores a weighting system will be applied as shown in the tables below.
Criteria Weighting Threshold Means of Delivery
Service Delivery Staffing
Monitoring
Policy and Procedures Added Value
70% 75%
Costings and Service
Outputs 15% 75%
Experience and references 15% 80%
The score for each of the evaluation areas will be multiplied by the weighted factor to give an overall initial score.
The Council reserves the right not to consider further Tenders which do not achieve the threshold score in each of the three areas of means of delivery, costings and experience and references.
Initial scores will be reviewed and if necessary revised by the evaluation team following post tender clarification meetings (including presentation and service user interview panel), the taking up of references and visits to reference sites.
Finally, the evaluation team will consider the scores and the overall viability of the Tenders to arrive at the most economically advantageous Tender.
9.4 The Council shall under no circumstances be bound to award the Contract to the Tenderer with the lowest price structure.
10 NON-SUBMISSION QUALIFICATIONS AND ERRORS
10.1 If upon examination of the initial documentation the Tenderer decides not to submit a proposal he is requested to inform the Council immediately and return all documents.
10.2 Alterations to the documentation and qualifications are not permitted. Any alterations to the documentation may render the submission invalid.
10.3 Failure to submit full documentation with the submission may result in disqualification.
11. REJECTION OF TENDERS
11.1 The Council reserves the right to reject any Tender submitted by a Tenderer in respect of which the Tenderer:
a. Discloses to any third party prices shown in its Tender except where such disclosure is made in confidence in order to obtain quotations necessary for the purposes of financing or insurance; and/or
b. Enters into any agreement with any other person that such other person shall refrain from submitting a Tender or shall limit or restrict the prices to be shown by any other Tenderer in its Tender; and/or
c. Fixes prices in its Tender in accordance with any arrangement with any person or by reference to any other Tender; and/or
d. Offers or agrees to pay or give or does pay or give any sum of money, inducement or valuable consideration directly or indirectly to any person for doing or having done or causing or having caused to be done in relation to any other Tenderer or any other person's proposed Tender any act or omission; and/or
e. In connection with the award of the Contract commits an offence under the Prevention of Corruption Acts 1889 -1916 or gives any fee or reward the receipt of which is an offence under Section 117(2) of the Local Government Act 1972; and/or
f. Has directly or indirectly canvassed any member or official of the Council concerning award of the Contract or who has directly or indirectly obtained or attempted to obtain information from any such member or official concerning any other Tenderer or Tender submitted by any other Tenderer; and/or
g. Has done anything improper to influence the Council during the Tender period; and/or
h. Has put any name or mark on the envelope in which the Tender is contained identifying the Tenderer; and/or
i. Has failed to use the English language; and/or
j. Has failed to return the Response Document fully completed and signed or any of the accompanying documents identified in paragraph 5 above. 11.2 The Council shall also be entitled to reject a Tender:
a. From a Tenderer if another Tenderer has to the knowledge of the first named Tenderer named that first named Tenderer as a sub-contractor; b. From a Tenderer if that Tenderer has named as sub-contractor another
person who to the knowledge of the first named Tenderer has submitted or intends to submit a Tender;
c. From a group company of another Tenderer;
d. From a person who is a member of a partnership or consortium which has submitted or intends to submit a Tender; or
e. From a Tenderer where the Council believes that there has been any form of co-operation or collusion with another Tenderer.
11.3 For the avoidance of doubt any non-acceptance or rejection in accordance with paragraphs 11.1 and 11.2 above shall be without prejudice to any other civil remedies available to the Council or any criminal liability that such conduct by a Tenderer may attract.
12 CONFIDENTIALITY
12.1 It is of the utmost importance that confidentiality with respect to these contract negotiations should be maintained. The Tenderer needs to ensure this occurs throughout their organisation including Board/ Committee of Management.
13 CONTACT
13.1 At any time before 20th December 2007 the Tenderer may write to the Council requesting any information or raising any query in connection with the Tender documents, the procedure leading to award of Contract or any other matter relating to the Services. The Council will use
reasonable endeavours to answer
all written enquiries prior to Tenders being submitted.
Any such communication must be in writing clearly marked for the attention of:Contact Name: Stuart Priestley
Council address: Whitlock House
C/O Kensington Police Station
72-74 Earls Ct Rd
London W8 6EQ
0208 246 0824
07974 193 472
Fax 020 8246 0890 Email [email protected]Questions will be answered in a single letter that will be circulated to all Tenderers.
14 SUBMISSION
14.1 Three completed sets plus 3 CDs of the documentation should be returned to:- The Chief Executive and Town Clerk
Main Reception Desk
The Royal Borough of Kensington and Chelsea
The Town Hall
Horton Street
London
W8 7NX
Your submission should be returned by 12 Noon, 21st January 2008.
15 TENDERER’S WARRANTIES
15.1 In submitting a Tender the Tenderer warrants, represents and undertakes to the Council that:
a. it has not done any of the acts or matters referred to in paragraph 11.1 above and has complied in all respects with these General Instructions and Information;
b. all information, representations and other matters of fact communicated (whether in writing or otherwise) to the Council by the Tenderer or its Staff in connection with or arising out of the Tender are true, complete and accurate in all respects;
c. it has carried out its own investigations and research, has satisfied itself in respect of all matters relating to the Tender documents and that it has not submitted the Tender and has not entered into the Contract in reliance upon any information, representations or assumptions (whether made orally, in writing or otherwise) which may have been made by the Council;
d. it has full power and authority to enter into the Contract and carry out the Services and will if requested produce evidence of such to the Council;
e. it is of sound financial standing and the Tenderer and its directors, officers and employees are not aware of any circumstances (other than such circumstances that may be disclosed in the audited accounts or other financial statements of the Tenderer) submitted to the Council that may adversely affect such financial standing in the future; and f. it has, and has made arrangements to ensure that it will continue to
have, sufficient working capital, skilled staff, equipment, machinery and other resources available to carry out the Services in accordance with the Contract and for the Contract Period.
CONDITIONS OF CONTRACT
PRELIMINARY 1 Definitions
1.1 In this Contract these words and expressions shall (except where the context otherwise requires) have the following meanings:-
Authorised
Officer means the person appointed by the Council in accordance with clause 9. Best Value Duty means the duty imposed on the Council by Section 3 of
the Local Government Act 1999.
CARATS means the Counselling, Assessment Referral, Advice , Throughcare Programme
Care Plan means a written agreement between the Service
Provider and the Service User detailing the support that is needed by the Service User and how it will be provided by the Service Provider.
Commencement
Date means the date referred to in Clause 3.1. Commissioning
Body means the Council’s body responsible for commissioning this Drug Intervention Programme Contract to the Service Provider.
Confidential
Information means information obtained from or relating to either party, their business or affairs, servants, agents or employees, or any information regarding the Service Users.
Contract/ Contract Documents
means these terms, the Specification and all Schedules and Appendices hereto.
Contract
Manager means the person referred to in clause 10 hereof. Contract Period means the period specified in clause 3 hereof.
Contract Price means the annual payment for the Services which the Council will make to the Service Provider in return for the Service Provider providing the Services. Details of the Contract Price are set out in Schedule B
Contract Year any continuous period of twelve months during the Contract Period commencing on the Commencement Date or any subsequent anniversary of the
Commencement Date;
DAATS means Drug and Alcohol Team, a multi-agency
partnership working on a local level to implement the national Drug Strategy
Data means data as defined in the Data Protection Act 1998. Day means the period from midnight to midnight.
Default means any failure on the part of either the Council or the Service Provider to carry out their obligations under this Contract.
Default Notice means a notice setting out the nature of the Default committed and, if the Default can be put right, the action required to put it right and the timescale within which it is to be put right. Any such timescale must be reasonable in all the circumstances.
DIP means the Drug Intervention Programme DRR Means the Drug Rehabilitation Requirement
Emergency means an event causing or, in the reasonable opinion of a party, threatening to cause death or injury to any individual, or serious disruption to the lives of a number of people or extensive damage to property, or contamination of the environment, in each case on a scale preventing the Services operating under normal circumstances and requiring the mobilisation and organisation of the emergency services.
Enhanced
Service Review means the description set out in Clause 12. Expiry Date means the date set out in Clause 3.1
Financial Year means a period of 12 months from 1 April in one year to 31 March in the next.
Good Industry
Practice means that degree of skill, care, prudence, foresight and operating practice which would reasonably and ordinarily be expected from time to time of a skilled and experienced operator (engaged in the same type of undertaking as that of the Service Provider) or facilities management contractor or building contractor or any sub-contractor (as the case may be) under the same or similar circumstances.
Health and Safety
Obligations
means any obligation imposed on the Service Provider by law or compliance with good industry practice or the Contract in respect of Health and Safety at Work, etc. Index the all items index of retail prices excluding housing
issued by the Office for National Statistics or any body upon which duties in connection with the compilation and
maintenance of such index may have devolved; Instructing
Officer means the individual or individuals appointed by the Authorised Officer in accordance with clause 9 hereof. Performance
Indicators means the set of performance indicators established by Home Office and National Treatment Agency and the Kensington and Chelsea Drug and Alcohol Action Team (DAAT) against which the contracted services are evaluated.
Persistent
Default means where the Service Provider has committed more than two Defaults during any consecutive period of 6 months, whether or not these are the same Defaults, different Defaults or waived Defaults and even if the Service Provider put the Default right each time.
Prohibited Act means:-
a) offering giving or agreeing to give any servant of the Council any gift or consideration of any kind as an inducement or reward:-
(i)
for doing or not doing (or for having done or not having done) any act in relation to the obtaining or performance of this Contract or any other contract with the Council; or(ii)
for showing or not showing favour or disfavour to any person in relation to this Service Provider or any other contract with the Council;b) entering into this Contract or any other contract with the Council in connection with which commission has been paid or has been agreed to be paid by the Service Provider or on its behalf, or to its knowledge, unless before the relevant contract is entered into particulars of any such commission and of the terms and conditions of any such contract for the payment thereof have been disclosed in writing to the Council; or
c) committing any offence:-
(i) under the Prevention of Corruption Acts 1889-1916; or under Legislation creating offences in respect of fraudulent acts; or
(ii) at common law in respect of fraudulent acts in relation to this Contract or any other contract with the Council; or
(iii) defrauding or attempting to defraud or conspiring to defraud the Council.
QUADS means Quality in Alcohol and Drug Services Quality
Assessment Framework/
means the Quality Assessment Framework for Drug Intervention Programme contract that defines service objectives (core and supplementary) against which
QAF providers will be monitored on a quarterly basis. Regulatory
Body means a body which is established either by statute or in some other way and to whose regulatory powers either party (or both parties) are subject. However, this does not include any body of which membership is voluntary. Relief Event means any of the following:-
a) fire, explosion, lightning storm, tempest, flood, bursting or overflowing of water tanks, apparatus or pipes, ionising radiation, earthquake, riot and civil commotion;
b) failure by any statutory undertaker, utility company, local authority (other than the Council) or other like body to carry out works or provide services; or
c) undertaking of any work by the Council in accordance with its obligations under the Contract Documentation or in order to discharge its statutory functions that materially affect the Service Provider’s ability to provide the Service;
unless any of the events listed in paragraph (a) to (c) inclusive arises (directly or indirectly) as a result of any default or wilful act of the Service Provider or any of its sub-contractors
Resumption
Notice means a notice referred to in clause 61.
Review Date the date three months prior to each anniversary of the Commencement Date;
Schedules means the Service Provider, Service or Premise
schedules attached to the Contract.
Serious Default means a Default on your part which materially prejudices the health, safety or welfare of a Service User or Service Users.
Service/s means the Service/s to be provided under this Contract listed in General Service Specification.
Service Review means the description set out in clause 12.
Service User means a person who receives or who may receive the Services which the Service Provider provides under this Contract.
Specification means the document which describes the Service outputs required by the Council.
Sub-Contractor means any person providing to the Service Provider works or services or supplies of goods materials or equipment under or in connection with these Contract
terms. Suspension
Notice means a notice served on the Service Provider under clause 61 which sets out details of the Services which are to be suspended whilst the Council carries out an investigation into a Serious Default.
TUPE
Regulations means the Transfer of Undertakings Protection of Employment Regulations 1981 (as amended 2006) and/or the European Acquired Rights Directive 77/187. Working Day means between 9:00am and 5:00pm Monday to Friday
inclusive, but does not include any days which are bank holidays or public holidays for the Criminal Justice Intervention Team. For the Arrest Refer interventions this means 7 am to 10.30 pm every day including weekend’s bank holidays.
2 Interpretation
2.1 Words importing one gender shall include the other gender.
2.2 Words in the singular shall include the plural and vice versa.
2.3 Words importing individuals shall be treated as importing corporations, partnerships and any organisation having legal capacity and vice versa.
2.4 Headings are for ease of reference only and shall not affect the construction of the Contract nor be deemed to be part of this Contract.
2.5 References to personnel staff and managers of the Service Provider shall include references to all persons engaged by the Service Provider in the performance of the Service and shall (if the context so permits) include references to the personnel and managers of any sub-contractor of the Service Provider.
2.6 References to any enactment, order, regulation or other similar instrument shall be construed as a reference to such enactment, order, regulation or instrument as amended or re-enacted by any subsequent enactment, order regulation or instrument.
2.7 References to clauses, Schedules and Annexes shall be deemed to be references to Schedules and Annexes to this Contract and references to sub clauses shall be deemed to be references to sub clauses of the clause in which the reference appears. References to paragraph shall be deemed to be reference to paragraph within the specification attached to the Contract.
2.8 In the event of any conflict between any provision of this Contract and any documents referred to in this Contract these terms shall prevail.
2.9 The words of this Contract shall bear their natural meaning and no term shall be construed contra proferentem.
2.10 All warranties, representations, undertakings indemnities and other obligations
made, given or undertaken by the Service Provider in this Contract are cumulative and none shall be given a limited construction by reference to any other.
3 Commencement and Duration
3.1 This Contract shall commence on the 1ST of April 2008 (the service
Commencement Date) and will continue until 31st March 2011 (the Expiry Date)
3.2 However, notwithstanding clause 3.1 either party may in accordance with the provisions of this Contract end the Contract as a whole before the Expiry Date. 4 Obligations Prior to Commencement Date
4.1 As soon as reasonably practicable and in any event (unless otherwise agreed by the parties) prior to the Commencement Date the Service Provider shall:-
4.1.1 submit confirmation of all insurance policies as are required in clause
35 hereof;
4.1.2 execute this Contract and deliver it to the Council; and the parties shall:-
4.1.3 comply with such other obligations as are necessary for the Services to commence; and
4.1.4 provide to the other all other information and documents which they
are required to provide in accordance with the Contract. 5 Service Standard
5.1 The Service Provider shall provide the Services in complete accordance with its obligations contained in the Contract and in a manner consistent with the nature of the services being provided.
5.2 In providing the Services, the Service Provider shall:-
5.2.1 conform to any and all codes of practice, performance ratings and
quality standards that are specified in the Contract or that relate to the nature of the Services being performed;
5.2.2 provide the Services with all the skill, care and diligence to be expected of a competent provider of Services of a similar kind to the Services concerned;
5.2.3 adopt and utilise such quality control process as detailed in the
Specification for its performance of the Services; and
5.2.4 provide all the necessary goods, equipment, materials, facilities, and
staff in order to carry out its obligations and ensure that any goods, equipment, materials, facilities, and workmanship supplied or employed in undertaking the Service are in accordance with the Contract and otherwise appropriate to the Service being performed.
5.3 The Service Provider (subject to any express provision of this Contract to the contrary) will not without the prior written consent of the Council, such consent not to be unreasonably withheld or delayed, (and whether by a single transaction or by a series of transactions whether related or not) sell, transfer, lend or otherwise dispose of (other than by way of security) the whole or any part of its business or assets which would materially affect the ability of the Service Provider to perform its obligations under this Contract.
5.4 The Service Provider shall develop and implement standards related to the Service. The standards must be agreed with the Authorised Officer, published for users and other interested parties to read and be implemented within 6 months of the Contract commencing.
5.5 The Service Provider’s standards should be specific to the requirements of this Service and shall be based upon “best practice”. The standards shall wherever possible, be measurable, based on outputs.
6 Entire Agreement
6.1 This Contract constitutes the entire understanding and agreement between the parties relating to the subject matter of this Contract and, saves as may be expressly referred to or referenced herein, supersedes all prior representations, documents, negotiations or understandings with respect hereto.
7 Assignment and Sub-Contracting
7.1 The Service Provider shall not assign this Contract whether in whole or in part without the prior written consent of the Council, which consent the Council shall be absolutely entitled to withhold.
7.2 The Service Provider may only sub-contract the performance of this Contract or any part thereof with the prior written consent of the Authorised Officer, which consent the Authorised Officer shall be absolutely entitled to withhold, and shall cease to so sub-contract if the Authorised Officer in writing withdraws his consent.
7.3 Such consent (if given) shall not relieve the Service Provider from any liability or obligation under the Contract and the Service Provider shall be responsible for the acts, defaults or neglect of any sub-contractor or its agents, servants or employees in all respects as if they were the acts, defaults or neglect of the Service Provider or its agents, servants or employees, notwithstanding that the Council may require as a condition of giving any consent to sub-contract a direct warranty and undertaking from the sub-contractor concerning the provision of the Services and compliance with the Contract in all respects.
7.4 The Council reserves the right to impose such conditions as it sees fit in giving any consent pursuant to clauses 7.2 and 7.3. Such conditions may include payment to the Council of such reasonable administrative and legal costs as may be incurred.
8 Agency
8.1 The Service Provider must not represent to anyone, nor allow any of its employees or agents to represent to anyone, that the Service Provider is an agent or servant of the Council.
8.2 In addition, the Service Provider must not enter into any contract on the Council’s behalf or on behalf of any of the Service Users, or in any way claim that the Service Provider is authorised to do so. This includes not binding the Council or any of the Service Users to carrying out, varying, releasing or discharging any obligation, whether or not by way of a formal contract.
8.3 The Service Provider does not have the power under this Contract to make, vary, discharge or waive any bye-law or regulation of any kind and the Service Provider must not represent itself as having any such power.
CONTRACT MANAGEMENT 9 The Authorised Officer
9.1 The Council shall appoint an Authorised Officer who may exercise the rights and powers conferred by this Contract upon the Council. This will not limit in any way the rights or obligations of the Council.
9.2 The Authorised Officer may notify the Service Provider that the Council has nominated certain officers as Instructing Officers. An Instructing Officer shall not have any power to vary any part of the Contract but shall be entitled to instruct the Service Provider to carry out work that is part of the Service.
9.3 The Authorised Officer and/or Instructing Officers shall be entitled to monitor t he performance of the Service by the Service Provider and shall have the power to intervene in the case of any Service Provider failure.
9.4 The Council’s Authorised Officer may from time to time by notice in writing to the Service Provider appoint any person to exercise such functions and powers as may be specified in the notice.
9.5 Details of the person appointed to act as Authorised Officer from the Commencement Date are set out in Appendix 1. The Council shall notify the Service Provider in writing of any changes to these details.
10 The Contract Manager
10.1 The Service Provider shall appoint an individual to act as the Contract Manager. The Contract Manager may exercise the functions, rights and powers conferred by this Contract upon the Service Provider. This will not limit in any way the rights or obligations of the Service Provider.
10.2 Details of the person appointed to act as Contract Manager from the Commencement Date are set out in Appendix 1. The Service Provider shall notify the Council in writing of any changes to these details.
10.3 In addition to appointing a Contract Manager, the Service Provider shall also provide the name and telephone number of a member of staff whose work base is in or reasonably close to the Royal Borough of Kensington and Chelsea who can be contacted at all times during Service operating times and who is empowered by the Service Provider to deal at short notice with problems which arise in the provision of the Service.
11 Contract Steering Group
11.1 The Drug Intervention Programme (DIP) Steering Group has been established since 2004. The Steering Group is accountable to Kensington and Chelsea Drug and Alcohol Action Team and Community Safety Programme Board. The Steering Group meets at regular intervals. The DIP Steering Group will:
11.1.1 Facilitate regular communication between the Council and the Service Provider;
11.1.2 Co-ordinate the implementation, ongoing operation, continuation, and the wind down and/or transfer of the Service at the end of the Contract;
11.1.3 Performance manage the Service, receiving feedback from various sources, including formal monitoring reports from the department and the Service Provider, feedback and complaints from Service Users and from operational staff;
11.1.4 Identify and resolve problems and issues as they arise. 12 Service Review
12.1 The Council will carry out Service Reviews of the Service annually. The Council may also carry out additional Service Review at other times if agreed by the parties or in the circumstances described in clause 60. Additionally the Council shall carry out an Enhanced Service Review at least every three years (if the contract is extended to three years).
12.2 In carrying out each Service Review, the Council shall take into account any relevant guidelines and directions issued by the Regulatory Body.
12.3 The Service Provider shall fully co-operate with the Council in carrying out a Service Review and shall make available to the Council such facilities, information and assistance as the Council may reasonably require and request.
12.4 Not less than 28 days prior to the commencement of a Service Review, the Council will send a notice to the Service Provider outlining the review process and requesting any information that the Council requires the Service Provider to submit prior to or during the Service Review. This may include:-
12.4.1 information on the budget for the Service; 12.4.2 staffing information;
12.4.3 questions regarding value for money; and
12.4.4 in the case of an Enhanced Service Review, stakeholder details and strategic relevance information.
12.5 The Service Provider must provide the information requested in the notice within 10 Working Days of the date of the notice.
12.6 During an Enhanced Service Review, the Council will visit the Service and may:- 12.6.1 meet with and interview staff;
12.6.2 meet with and interview Service Users;
12.6.3 inspect policies and procedures and other records and information related to the Service; and
12.6.4 inspect the Premises.
12.7 The Council shall review all of the information gathered during the Service Review as well as any other monitoring information submitted during the year, and assess:-
12.7.1 the overall quality and performance of the Service; 12.7.2 value for money;
12.7.3 compliance with the Contract; 12.7.4 satisfaction of Service Users; and
12.7.5 in the case of a full Service Review strategic relevance and demand for the Service.
12.8 The Council shall notify the Service Provider of the outcomes of the Service Review and the Service Provider shall have due regard to the Council’s comments in the future provision of the Service.
12.9 Following a Service Review or an Enhanced Service Review, the Council may:- 12.9.1 propose changes to the Service in accordance with clause 14; or 12.9.2 terminate the Service to a Service User or terminate the
Contract as a whole in accordance with clause 62. 12.10 Each party shall bear its own costs in participating in a Service Review. 13 Monitoring by Service Provider
13.1 The Service Provider shall monitor and report on its performance in the delivery of the Service in accordance with this Contract and the Specification.
14 Change Control
14.1 Where the Council sees a need for a change to the Service or to the Contract, then the Council may request a change by giving notice in writing to the Service Provider. The Service Provider shall not unreasonably reject nor unreasonably withhold its agreement to the change and agrees to use its best endeavours to implement the requested change.
14.2 Where the Service Provider sees a need for a change to the Service or to the Contract then the Service Provider may request a change by giving notice in writing to the Council. The decision whether to accept or reject the change shall be at the Council’s absolute discretion and shall be final.
14.3 Any notices required under this clause 14 shall set out sufficient details of the proposed change to enable the other party to evaluate the impact of the change. The party receiving the notice shall be entitled to request further information, which the party submitting the notice shall provide as soon as reasonably practical.
14.4 With regards to a proposed change under clause 14.1 the parties shall discuss the proposed change in good faith and may agree either:-
14.4.1 upon amendments to be made to the Contract or the Service; or 14.4.2 that no amendments to the Contract or the Service are
required.
14.5 If the proposed change (including with agreed modifications) is accepted in accordance with clause 14.4 the parties shall record the amendments to the Contract in writing and agree a timetable for implementation. Failure of the Service Provider to comply with the agreed implementation programme may be deemed as a default.
14.6 A change to this Contract shall only be valid if it has been agreed in writing and signed by both parties.
15 Relief Events
15.1 If and to the extent that a Relief Event adversely and materially affects the ability of the Service Provider to perform any of its obligations under this Contract then the Service Provider shall be entitled to apply for relief from any of its obligations under this Contract.
15.2 To obtain relief, the Service Provider must:-
15.2.1 as soon as practicable, and in any event within fourteen (14) Days after it becomes aware that the Relief Event has caused or is likely to cause delay and/or adversely affect the ability of the Service Provider to perform its other obligations give to the Council a notice of its claim for relief from its obligations under this Contract, including full details of the nature of the Relief Event, the date of occurrence and its likely duration;
15.2.2 within five (5) Working Days of receipt by the Council of the notice referred to in clause 15.2.1, give full details of the relief claimed; and
15.2.3 demonstrate to the reasonable satisfaction of the Council that:-
a
the Service Provider and its Sub-Contractors could not haveavoided such occurrence or consequences by steps which they might reasonably be expected to have taken;
b
the Relief Event directly caused the delay to the Service Commencement Date or the need for relief from other obligations under this Contract;c
the time lost and/or relief from the obligations under this Contract claimed could not reasonably be expected to be mitigated or recovered by the Service Provider or the Sub-Contractor acting in accordance with Good Industry Practice;and
d
the Service Provider is using its best endeavours to perform its obligations under this Contract.15.3 In the event that the Service Provider has complied with its obligations under clause 15.2, then:-
15.3.1 the Service so affected shall be suspended by such time and to such an extent as shall be reasonable for such a Relief Event, taking into account the likely effect of delay; and/or
15.3.2 the Council shall not be entitled to exercise its rights of termination under clause 62 and subject to clauses 15.4, 15.5 and 15.6 below shall give other such relief as has been requested by the Service Provider.
15.4 In the event that information required by clause 15.2 is provided after the dates referred to in that clause, then the Service Provider shall not be entitled to any relief during the period for which the information is delayed.
15.5 The Service Provider shall notify the Council if at any time it receives or becomes aware of any further information relating to the Relief Event, giving details of that information to the extent that such information is new or renders information previously submitted materially inaccurate or misleading.
15.6 If the parties cannot agree the extent of the relief required, or the Council disagrees that a Relief Event has occurred the matter shall be resolved in accordance with clause 58.
16 Protection of individual Service Users
16.1 Notwithstanding the relief from the contract provisions under clause 14 the Service Provider shall take reasonable steps to assist and protect Services Users during any Relief Period or other disruptions no matter how caused.
17 Best Value and Service Improvement
17.1 The Service Provider shall, throughout the Contract Period, but only to the extent of its obligations in this Contract make arrangements to secure continuous improvement in the way in which the Services are provided having regard to a combination of economy, efficiency and effectiveness and shall assist the Council in discharging its Best Value Duty in relation to the Service. 17.2 Either party may propose alternative methods for the improvement of the
economy, efficiency and environmental aspects of the Service or the introduction of or change in any information technology in use to support the provision of the Services and the parties will co-operate to evaluate and if appropriate introduce such proposals under clause 14 any benchmarking and/or market testing exercises shall be carried out as required by and in accordance with Good Industry Practice.
CONTRACT PRICE AND PAYMENTS
18 Contract Price
18.1 The Contract Price shall consist of an annual sum payable by the Council to the Service Provider.
18.2 The Contract Price shall (subject to the provisions of the Contract which provide for a variation or review thereof) be as stated in Schedule B and shall be deemed to include all costs of providing the Services howsoever incurred or arising, except as otherwise expressly provided for under this Contract.
advance from the Commencement Date. Payments are made by BACS transfer to the Service Providers nominated bank account.
18.4 Within 15 Working Days of the end of the Financial Year the Service Provider shall provide the Council with a statement of account for the previous financial year. This statement shall show:-
18.4.1 a simple breakdown of charges/costs;
18.4.2 the Services provided during the period covered by the invoice; 18.4.3 total on monthly payments by the Council; and
18.4.4 any under or over payment.
18.5 The statement shall be supported by such other information and documentation as the Council may reasonably require from time to time.
18.6 The Contract Price shall be paid in Pounds Sterling to the Service Provider in accordance with the terms and conditions of this Contract normally by means of electronic transfer of funds.
19 VAT Payment
19.1 The Contract Price does not include VAT. If VAT is payable then the Council must pay this in addition to the Contract Price provided that the Service Provider supplies the Council with a proper VAT invoice in accordance with clause 19.2 below.
19.2 At the end of every month, Service Providers with VAT payable on their Contract Price shall provide the Council with a correct valid VAT-only invoice which shall give in detail (and where necessary, showing calculations) particulars of the VAT due on the monthly Contract Price payable for the immediately preceding month.
20 Annual Review of Contract Price
20.1 The Contract Price shall be revised on each anniversary of the Commencement Date in accordance with the following provisions:-
20.1.1 on the first anniversary of the Commencement Date the Contract Price shall be adjusted by the percentage increase or decrease in the Index calculated from the Commencement Date to the first Review Date;
20.1.2 from the second anniversary onwards, the Contract Price shall be adjusted by the percentage increase or decrease in the Index calculated from the Review Date in the previous Contract Year to the Review Date in the Contract Year just ended;
20.1.3 the adjustment shall apply to the Contract Price for the twelve month period commencing on the relevant anniversary of the Commencement Date.
20.1.4 If the bases of computation of the Index having changed, any official reconciliation between the two bases of computation published by the body charged with the compilation and maintenance of the Index (currently the Central Statistical Office) shall be binding upon the Council and the Service Provider and shall be applied in adjusting the application of the Index thereto provided that in the absence of such official reconciliation such adjustments shall be made to the figures of the Index as to make it correspond as nearly as possible to the previous method of computation and such adjusted figures shall
be used to the exclusion of the actual published figures (until officially reconciled figures are published) and in the event of a dispute regarding such adjustments such dispute may be referred by either party to the dispute resolution procedure under Clause 58.
21 Late Payment
21.1 If the Council is late in making any payment of the Contract Price then the Council must pay the Service Provider interest on the amount of any such late payment (unless the unpaid sum is in dispute between the parties). The interest will be calculated on a daily basis, from the date when payment should have been made to the date when payment is actually made. The interest rate that will apply will be the base rate of Barclays Bank plc from time to time, plus 2% per annum.
21.2 It is agreed between the parties that the rate of interest described herein provides the Service Provider with a substantial remedy pursuant to sections 8 and 9 of the Late Payment of Commercial Debts (Interest) Act 1998.
22 Right of Set-Off
22.1 The Council shall notwithstanding anything contained in this Contract be entitled to deduct from or set-off against any monies due from him to the Service Provider (including any retention monies) under this Contract or any other Contract between the Service Provider and the Council.
22.2 The Council shall give to the Service Provider notice of any such deduction or set-off and such notice shall specify:-
22.2.1 the amount proposed to be withheld and the ground for withholding payment; or
22.2.2 if there is more than one ground, each ground and the amount attributable to it.
STAFF
23 Staff
23.1 The Service Provider is responsible for engaging in the performance of the Services sufficient persons of sufficient abilities, skills, knowledge, training, qualifications and experience for the proper performance of the Services and for ensuring that sufficient reserve staffs are available to provide the Service at all times.
23.2 The Service Provider shall ensure that all employees involved in providing the Services shall be at all times properly and sufficiently trained and instructed in the following:-
23.2.1 the task or tasks the employee has to perform; 23.2.2 all relevant provisions of the Contract;
23.2.3 all relevant procedures and standards agreed between the parties from time to time;
23.2.4 all relevant laws, regulations, rules and procedures affecting the provision of the Services; and
23.2.5 the need to maintain the highest standards of courtesy and consideration to the public to promote and enhance the Council’s image and reputation.
24 Staff Checks
24.1 The Service Provider shall not use on the Service any member of staff who has a criminal record obtained before or while engaged in providing the Service relating to offences which could put Service Users at risk. Where the Service Provider has any doubts regarding the suitability of a member of staff, the Service Provider shall discuss the matter with the Authorised Officer.
24.2 Pursuant to the Criminal Justice and Court Services Act 2000 and Care Standards Act 2000 the Service Provider shall carry out “Enhanced” checks with the Criminal Records Bureau (CRB) on all staff or volunteers engaged to provide the Service who will have access to children or vulnerable adults. Where staff or volunteers are likely to have regular face-to-face contact with Service Users an enhanced level disclosure must be obtained. For all other posts, a standard disclosure shall be obtained.
24.3 The Service Provider shall also carry out all reasonable checks to ensure that individuals are not restricted or prohibited from working with vulnerable adults or otherwise unsuitable to work on the Service. This shall include obtaining from the person a signed and dated declaration regarding any previous criminal convictions and informing the person that failure to declare convictions may result in dismissal.
24.4 Once the Service Provider has completed the CRB checks the Service Provider shall send confirmation of all CRB checks to the Authorised Officer.
24.5 If at any time the Service Provider becomes aware of anything that may affect the suitability of the individual to perform the work required, the Service Provider shall, prior to the individual concerned being used on the Service or as soon as possible thereafter, inform the Authorised Officer.
24.6 The costs of registering with the CRB and applying for disclosure certificates from the CRB shall be the responsibility of the Service Provider.
24.7 The Service Provider shall conduct a CRB re-check as soon as practicable after 3 years of the last CRB check.
25 Staff Training and Records
25.1 Subject to any restrictions imposed by legislation, the Service Provider shall ensure that the Council's Authorised Officer shall at all reasonable times have access to all material details in respect of all employees of the Service Provider and its Sub-Contractors engaged in the provision of the Services including numbers and categories of staff employed to perform the Services, details of qualifications in respect of each such employee and details of training undertaken by the employee.
26 Council’s Employees
26.1 The Council shall be entirely responsible for the employment and conditions of service of its own employees.
27 Service Provider’s Employees
27.1 All the Service Provider's personnel engaged in and about the provision of the Services shall be under the control and direction of the Service Provider's own managers.
27.2 The Service Provider shall be entirely responsible for the engagement and conditions of employment of its personnel and managers including, without limitation, the payment of remuneration, taxation and insurance.
27.3 The form of each employment contract is a matter for the Service Provider so long as all responsibilities and liabilities for the Service rest solely with the
Service Provider. INFORMATION 28 Confidentiality
28.1 Each party hereto shall use all reasonable endeavours to ensure that subject to clause 29, that it (and any person employed or engaged by that party in connection with the provision of the Services in the course of such employment or engagement) will:-
28.1.1 only use Confidential Information for the purposes of this Contract; and
28.1.2 not disclose any Confidential Information to any third party without our prior written consent.
28.2 Notwithstanding the provisions of clause 28.1 above either party shall be allowed to disclose any Confidential Information to any consultant, contractor or other person engaged by either party in connection with this Contract or the provision of the Services provided that in each such case the consultant, contractor or other person concerned has signed a confidentiality undertaking on substantially the same terms as set out in this clause 28.
28.3 Further, the restriction set out in clause 28.1 shall not prevent either party disclosing to the other (or to any other person) Confidential Information about a Service User where this is in the best interests of the Service User concerned or such disclosure is necessary so as to protect the health, safety or welfare of the Service User or other Service Users.
28.4 Provided always that the restriction set out in this clause 28 shall not apply to any such information which:-
28.4.1 comes into the public domain or is subsequently disclosed to the public (otherwise than through default of either party); or
28.4.2 is required to be disclosed by law; or
28.4.3 was already in possession of the party (without restrictions as to its use on the date of receipt); or
28.4.4 subsequently lawfully comes into the possession of the party from a third party; or
28.4.5 is required to be disclosed by any Regulatory Body or governmental body.
28.5 The obligations in this clause 28 shall survive the expiration or termination (for what ever reason) of this Contract and shall continue without limit in point of time.
29 Freedom of Information
29.1 The Council is subject to the Freedom of Information Act 2000 and therefore will incur additional legal obligations in relation to the public disclosure of information.
29.2 The parties confirm that disclosures required by the Freedom of Information Act 2000, shall be classed as a disclosure required by law under clause 28 so that the obligations of confidentiality do not apply.
29.3 The Service Provider shall co-operate and assist the Council with disclosures under the Freedom of Information Act 2000 as if it were under identical duties and the Council shall have the right to determine the manner, timing and terms under which such disclosure shall be made, save that nothing in this clause 29
shall impose an obligation on either party to disclose information which it would be precluded from proving under the said Act.
30 Data Protection Act
30.1 The parties hereto shall comply with their obligations under the Data Protection Act 1998 together with any subsequent amendment or re-enactment thereof and Data Protection Principles and any guidelines issued by the Information Commissioner in storing and processing personal data in so far as performance of the Service gives rise to such obligations.
30.2 The Service Provider shall ensure that it does nothing that places the Council in breach of the Council's obligations under the Data Protection Act and shall establish systems satisfactory to the Council to ensure compliance with such obligations. For this purpose the Service Provider acknowledges the terms of the Council's registration under the Act, a copy of which registration is available for inspection by the Service Provider on reasonable notice at the Town Hall. 30.3 Subject to clauses 27 and 32 the parties agree that all personal data acquired
by either party from the other shall be returned to the disclosing party on request. Both parties hereby acknowledge that performance of a duty imposed by the Data Protection Act shall not constitute a breach of any obligation in respect of confidentiality, which may be owed to the other party.
31 Records and Accounts
31.1 The Service Provider shall maintain to the Council’s satisfaction proper records and accounts that are sufficient to show whether the Service Provider is complying with the Contract.
31.2 The Council shall be entitled to inspect the Service Provider’s records and accounts and all documents relevant to such records and accounts in situ at any of the Service Provider’s (or its professional advisor’s) premises or request copies of the same to be provided to the Council at any time during the Contract Period. Such records shall, for the avoidance of doubt, include computer records, hard copy and accounts.
31.3 The Service Provider shall maintain adequate procedures to reconstruct files swiftly in the event of site disaster. The Service Provider shall co-operate with the Council and its consultants in any enquiries they may make to be satisfied that such arrangements are adequate and shall comply with any reasonable requirements by the Council in connection with this.
31.4 The Service Provider shall provide the Authorised Officer, the Council’s internal and/or external auditors with full access on demand during working hours to all correspondence, documentation and files created in performance of the Services, whether stored on paper, microfiche, computer software or other medium subject to the confidentiality procedures defined within the Specification. In order to preserve the independence of the advocacy, individual service user information and files are excluded from this clause.
32 Service User Information
32.1 The Service Provider shall ensure that each new Service User is notified and made aware that information relevant to this Contract and Service about the Service User may be shared between the parties for the purposes of managing and complying with this Contract.
