ProjecTeam Ltd
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Recommended Amendments
to CUP GN 59:
Model Services Contract Documentation
Note: In setting out these recommended amendments, references to particular lines of text relate to the printed version of CUP GN 59 published by HM Treasury in May 1997.
Experience in use means that recommending improvements is an ongoing process. We therefore advise that you re-visit the ProjecTeam Internet site for further information on a regular basis. Users of the ProjecTeam model documents receive all updates automatically as soon as they are released.
The amendments listed here are those current at
(1) (1) Insert a footnote for each page of the model document:
“Conventions used: Drafters notes are in italics and must be deleted; Brackets [ ] signify a variable”.
(2) (2) Delete the existing introductory note numbered 2.2 and insert an introduction to the document as follows:
“This questionnaire may be sent to prospective service providers following receipt of expressions of interest resulting from an advertisement in an appropriate daily newspaper, trade journal and/or the Supplement to the OJEC. The range of questions may be scaled down appropriate to the complexity of a particular project in keeping with the thrust of the Government white paper on procurement “Setting New Standards”. The response will establish the organisation’s financial viability, technical ability and capability to perform the required service. The information received should be used for the first round of the evaluation process i.e. those organisations deemed unsuitable may be eliminated at this point and not invited to the second round pre-qualification interview. Where the EC procurement rules apply, the rejection or selection process must follow those rules. In particular, care must be taken to ensure that information requested under SI 1993/3228 OJEC notice paragraph 13 (Restricted Procedure) is sufficiently comprehensive to allow the following range of questions to be asked under regulation 17, Supplementary Information.”
(3) (3) Questionnaire item 2.10 (Organisation Information), line 1, third and tenth word:
For “company” substitute “organisation”.
(4) (4) Item 4.2 (Financial):
Change “Please enclose a set of the last 3 audited accounts for your own company and the holding and/or ultimate parent (if applicable)” to read: “Please enclose a set of your last 3 audited accounts and if applicable, those of the holding and/or ultimate parent company.”
(5) (5) Item 8 (References): Substitute modified wording for the whole of this item as follows:
8.1 Please provide details of major private sector contracts you have been awarded for the provision of services similar to those required by the Authority.
8.2 8.2 Please provide details of any major contracts you have been awarded by government departments, agencies, local authorities, health authorities or NHS trusts for the provision of services similar to those required by the Authority.
The reference details to be
provided under 8.1 and 8.2 should include:-
a) a) contracts currently undertaken;
b) b) contracts that have been undertaken over the last three years;
c) c) contracts that have been terminated during the last three years;
d) d) customer name and address;
e) e) contact name and telephone number;
f) f) contract reference and brief description of service undertaken; and
g) g) name(s) of sub-contractors and/or consortium members and their role.
(NB. The Authority may elect to contact any of the above companies or organisations for a reference. Your permission to do so will be assumed unless you state any objections here).”
(6) (6) Item 10 (Insurance): Insert the following at the end of this item:
“[Insert only if it is intended to incorporate the last sentence of Section 2, Condition 28.2 in the Contract document]”.
(7) (7) Item 16 (Enclosures), line 3, delete “(where applicable)”. In line 5, after “Health and Safety” change “Policy” to “policy”.
(8) (8) In Appendix 1, the quotation of regulation 14 requires the following amendments:
Paragraph (1):
In line 3, after “12(4),” insert “and”.
In sub-paragraph (a), after “creditors” at the end of line 2, insert “or has made any conveyance or assignment for the benefit of his creditors”.
In sub-paragraph (c), line 5, delete “other” immediately before “the above procedures”.
In sub-paragraph (g), at the end, insert “;”.
Paragraph (2):
Change the number “2.” to “(2)”.
In sub-paragraph (a)(ii), line 2, for “competent” substitute “judicial or administrative”.
Paragraph (3):
Change the number “3.” to “(3)”.
Paragraph (4):
Change the number “4.” to “(4)”.
In line 3, change “orders professionals” to “ordres professionels”.
In line 6, change “Vereinregister” to “Vereinsregister”.
In line 7, change “agricultura e artingianto” to “agricoltura e artigianato”.
In line 8, change “proviniali per l’artiginiato” to “provinciali per l’artigianato”.
For lines 11 and 12, substitute:
“in
in
de Economia y Hacienda.”
Paragraph (5):
Change the number “5.” to “(5)”.
In line 1, change “service” to “services”.
In line 2, change “(i)(j)” to “(1)(j)” and change “service” to “services”.
Paragraph (6):
Change the number “6.” to “(6)”.
In line 1, change “service” to "services”.
For lines 3 and 4, the words in sub-paragraph (a), substitute:
“when the services to be provided under the contract are specified in paragraph 8 of Schedule 1 and when Greek legislation requires persons who provide those services to be registered on the professional register [Greek name of register] if he is registered on that register; and”.
In line 5, change “service” to “services”.
(9) (9) In Appendix 4, change “(Question 15)” to “(Question 14)”.
Note: NHS Trusts and other authorities which are not part of the Crown would either need to make the appropriate changes or use the ProjecTeam model version, which takes this problem into account.
(1) (1) Insert a footnote for each page of the model document:
“Conventions used: Drafters notes are in italics and must be deleted; Brackets [ ] signify a variable”.
(2) (2) Delete the existing introductory note numbered 2.2 and insert an introduction to the document as follows:
“It is envisaged that this pre-qualification interview letter will be sent to those companies who have been selected as being prospective tenderers following the scoring of the Questionnaires received. The range of questions and suggested interview time allowances should be adjusted to suit the complexity of a particular project. The interview is aimed at establishing, as far as it is possible to do so, the suitability of a company to tender before putting them to the expense of tendering. The process must be in compliance with the EC procurement rules in the same way as identified in the drafters note at the top of the Appraisal Questionnaire.”
(3) (3) Model Letter, paragraph 6(d): Insert square brackets around the word “both” and around the words “and on the site visit”. Beneath paragraph 6(d) insert: “[Delete wording in square brackets if not applicable]”.
(4) (4) Paragraph 9: Beneath this paragraph insert: “[Delete paragraphs 8 and 9 and renumber if site visit is not applicable]”.
(5) (5) In Appendix A, line 3, delete “Note:” and change “Tender” to “tender”.
(6) (6) In Appendix C, line 2, change “contactor” to “Contractor”.
(7) (7) In Appendix D, line 2, change “contactor” to “Contractor”.
(8) (8) In the heading to Appendix E, change “SERVANTS” to “SERVICE”. In line 2 of the text, change “contactor” to “Contractor”.
NHS Trusts and other authorities which are not part of the Crown would either need to make the appropriate changes or use the ProjecTeam model version, which takes this problem into account.
(1) (1) Insert a footnote for each page of the model document:
“Conventions used: Drafters notes are in italics and must be deleted; Brackets [ ] signify a variable”.
(2) (2) Contents page: Delete the first two lines: “The model ITT package is at Annex A and contains:” and “Letter of Invitation”. Replace “Letter of Invitation” with “Model Letter of Invitation to Tender”.
(3) (3) Contents page, lines 5 & 6: In the heading “Invitation to tender acknowledgement” make the “t” and the “a” upper case. Delete the words “Appendix A”.
(4) (4) Contents page: In the description relating to Document 5, change “TUPE personnel information” to “TUPE information”.
(5) (5) Model Letter of Invitation to Tender: Delete the words “ANNEX A” at the top of the page.
(6) (6) Model Letter of Invitation to Tender: In the listed reference to Document 5:
Change “TUPE personnel information. [Insert only if information is to be provided in accordance with Document 1, paragraph 14 Option “A”.] to read:
“TUPE information. [Insert only if applicable]”.
(7) (7) Document 1 (Instructions and Information on Tendering Procedures): The “DOCUMENT 1” header should appear on each page of Document 1 (Similarly with regard to Documents 2, 3 & 4).
(8) (8) Document 1, paragraph 11: Insert a full stop after “Certificate of Bona-Fide Tendering” and begin a new sentence with “Any breach”.
(9) (9) Document 1, paragraph 14 (TUPE), Option A, sub-paragraph (vi)(c): At the end of line 3, after “status” insert: “and where appropriate, those of the Occupational Pensions Board in connection with contracting out”.
(10) (10) Document 1, paragraph 14, Drafters Note at the end of Option A:
Change “delete all text from 14.1 iii) to end” to read: “delete all text from and including iii) to this point”.
(11) (11) Document 1, paragraph 14, Option B: Delete the square bracket at the end of sub-paragraph (iv). In the Drafters Note at the end of Option B:
Change “delete from 14.1 iii) to end” to read: “delete all text from and including iii) to this point”.
(12) Document 1, after paragraph 22 (Confidentiality), insert a new paragraph as follows:
23 23 In Document 4, Part 1: “Declaration by Tenderer” you are required to confirm that you are not aware of any conflict of interest or any circumstances that could give rise to a conflict of interest in the performance of the proposed Contract.
(12) (13) Document 4, introductory page: In the listed reference to Part 2, insert round brackets around the words “if applicable”. In the reference to Part 3, delete the word “Price” which appears immediately before “Schedule of Prices and Rates”. In the reference to Part 12:
Change “Proposals in relation to personnel who transfer to you” to read:
“TUPE transfer Personnel information”.
(13) (14) Document 4, Part 1 (Declaration by Tenderer): A new paragraph should be inserted immediately before the paragraph which begins “I hereby offer to enter into a Contract” as follows:
“I declare that I am not aware of any conflict of interest or any circumstances that could give rise to a conflict of interest in the performance of the proposed Contract.”
(14) (15) Document 4, Part 1, in the penultimate paragraph:
Insert square brackets around the words “I also understand the Authority has the right to accept only part of a Tender unless I have expressly stipulated otherwise” and insert a Drafters Note as follows:
“[Delete the last sentence if under Document 1, item 6, Acceptance of Tenders, the right to accept the whole or any part of a tender was not included]”.
(15) (16) Document 4, Part 5 (Method Statement), in the second paragraph:
Change “Your method statement should describe clearly how you will provide each of the main requirements set out in the Specification. Please set it out under the following headings and order. Particular questions to be addressed in your response are indicated where appropriate.” to read:
“Your method statement should describe how you will provide each of the main requirements set out in the Specification. In particular the following issues should be addressed:”.
(16) (17) Document 4, Part 6 (Plan of Expected Resource Requirement): In the heading, after “RESOURCE REQUIREMENT” insert “AND KEY STAFF INFORMATION”.
(17) (18) Document 4, Part 10 (Proposals on Use of Authority’s Property): In the heading, insert “THE” before “AUTHORITY’S PROPERTY”.
(18) (19) Document 4, Part 11 (Certificate of Bona Fide Tendering): In paragraph 2, line 1, change “Authority staff” to “Authority’s staff”. In paragraph 3(d), lines 2 and 3, change “the said work” to “the Services”. In paragraph 3(e), change “Authority staff” to “Authority’s staff”.
(19) (20) Document 4, Part 12: Change the heading “PROPOSALS IN RELATION TO STAFF TRANSFERRING TO YOU” to read: “TUPE TRANSFER PERSONNEL INFORMATION”. At the end of paragraph 3, after “PENSIONS” insert “relating to Personnel”.
(20) (21) In Document 4, Parts 13 & 14: All defined terms should be in the following format, where the definition of the Guarantor has been used as an example:
(hereinafter called “the Guarantor”)
(21) (22) In Document 4, Parts 13 & 14 all Drafters Notes (within square brackets) should be in italics.
(22) (23) Document 4, Part 14 (Deed of Bond): In paragraph (1), line 3, change “supply” to “provide”. Change the line “EXECUTED as a Deed on behalf of [Bank] (the Bank)” to read: “EXECUTED as a Deed on behalf of the Bank”.
(23) (24) In Document 5 (TUPE):
Change the heading “TUPE PERSONNEL INFORMATION” to “TUPE INFORMATION”.
In line 4 of the text, change “information relating to the Staff” to read: “information relating to any Personnel or existing contractor’s staff”.
In sub-paragraph (a), change “the number of Staff who would be transferred but with no obligation on the Contractor to specify their names” to read: “the number of employees who would be transferred but with no obligation to specify their names prior to a decision being made for the award of Contract”.
In sub-paragraph (b), line 1, change “members of staff” to “employees”.
In sub-paragraph (c), line 1, change “members of staff” to “employees”.
Note: NHS Trusts and other authorities which are not part of the Crown would
either need to make the appropriate changes or use the ProjecTeam model
version, which takes this problem into account.
Some matters, such as the tenderer’s proposals on the use of existing sites (Document 4, Part 9), are referred to as being incorporated into the contract, but with no mechanism for doing so. There is no mechanism for incorporating a list of Approved sub-contractors, or the tenderer’s expected resource requirement (Document 4, Part 6) (subject to it having only limited significance as an “anticipated” resource structure). The requisite information needs to be provided by tenderers in a format appropriate to Section 5: Administration Instructions, to accord fully with the principle that the entire structure of the proposed contract is presented to tenderers, allowing the tender and contract documentation to be one and the same
The Invitation to Tender should be restructured to take into account the use of Section 5. Although CUP GN 59 provides for the use of Section 5, it has been left to individual departments to create their own framework documentation for the whole of Sections 3, 4 & 5. These documents have already been prepared by ProjecTeam (along with an appropriately restructured ITT) and are used by a number of large government departments.
(1) (1) In Section 1 (Form of Agreement), line 4, amend the brackets so as to change “together referred to as (“the Parties”)” to read: “(together referred to as “the Parties”).
(2) (2) In Section 2 (Conditions of Contract), in the index: For the title of Condition 7, change “Independent Contractor” to “Contractor’s Status”. Change the title of Condition 29, “Corrupt gifts and payments of commission” to “Prevention of corruption and conflict of interest”.
(3) (3) Condition 1 (Interpretation): Next to the definition of “Equipment” insert a Note in the right hand column:
“Equipment: Note that the defined term “Equipment” is all-embracing.”
(4) (4) Condition 2 (Entire Agreement), line 5: Change “undertakings” to “understandings”.
(5) (5) Condition 13 (Right of Access to Authority’s Premises): In Condition 13.6, line 4, change “for whom it was issued” to read: “for whom the pass was issued”.
(6) (6) Condition 14 (Manner of providing the Services): In the Notes in the right hand column of the printed version, line 2, change “Service contracts” to “Services contracts”.
(7) (7) Condition 16 (Overtime Working): In the Notes column, line 7, change the reference “Condition 37 (Variation)” to read: “Condition 36 (Variation)”.
(8) (8) Condition 20 (Payment of sub-contractors): In the Notes column, line 2, change “government” to “Government”.
(9) (9) Condition 22 (Recovery of Sums Due): Change the heading “RECOVERY OF SUMS DUE” to “RECOVERY OF SUMS DUE TO AUTHORITY”.
(10) (10) Condition 24 (Security): In the first line of Condition 24(5)(a), change “shall use his best endeavours” to read: “shall take all reasonable measures”.
(11) (11) Condition 27 (Right of Audit): In the Notes column:
Remove all underlining in the Note.
In lines 1 and 6, change “government” to “Government”.
In the third indented sub-paragraph, lines 3 to 7, delete the words “Condition does not constitute a requirement or agreement for the examination, certification or inspection of the accounts of the Contractor under Section 6(3)(d) and (5) of the National Audit Act 1983”.
In the second paragraph, change “In case of doubt the Authority should consult TOA Team at HM Treasury and the NAO” to read: “In case of doubt the Authority should consult the Treasury Office of Accounts (TOA) team at HM Treasury and the National Audit Office (NAO)”.
(12) Condition 29, change the title from “CORRUPT GIFTS AND PAYMENTS OF COMMISSION” to “PREVENTION OF CORRUPTION AND CONFLICT OF INTEREST”.
(12) (13) Condition 29.3: Change the words “In exercising its rights or remedies under this Condition” to read “In exercising its rights or remedies under Condition 29.2”. After Condition 29.3 insert:
29.3 29.3 The Contractor shall take all measures necessary to ensure that no conflict of interest exists or arises relating to the Contractor or any Staff that could in any way adversely affect the performance of the Contract.
29.4 29.4 The Contractor shall promptly notify the Authority in writing if he knows or becomes aware of any conflict of interest or any circumstances that could give rise to a conflict of interest.
29.5
29.5
If the
Authority’s Representative becomes aware of any conflict of interest or any circumstances
that could give rise to a conflict of interest, whether or not as a result of
notification by the Contractor, the Authority shall have the right, after
taking into account all representations made by the Contractor:
a) a) to allow such period as may be specified by the Authority, during which period the Contractor shall have the opportunity to take any measures necessary to ensure that the conflict of interest, or the cause of the potential conflict of interest, is removed; or
b) b) to terminate the Contract, or to terminate the provision of any part of the Services, in accordance with Condition 39 if, in the opinion of the Authority’s Representative, there is a conflict of interest that cannot be removed.
29.6 29.6 Where the Authority has exercised the option under Condition 29.6(a) and, by the end of the period specified in accordance with that provision, the Contractor has failed to demonstrate to the satisfaction of the Authority’s Representative that the conflict of interest, or the cause of the potential conflict of interest, has been removed, the Authority shall have the right to terminate the Contract, or to terminate the provision of any part of the Services, in accordance with Condition 39.
(13) (14) Condition 32 (Transfer and sub-contracting):
In Condition 32.1, lines 4 to 8, delete the words “Approval of a sub-contractor shall be signified by the inclusion of the name on Appendix F, Section 5: Administration Instructions. Names can only be added to this list by a covering Variation.”.
In the Notes column next to Condition 32.1, insert a further paragraph: “Approval of a sub-contractor under Condition 32.1 should be signified by the inclusion of the name in the appendices contained within Section 5: Administration Instructions. Names should only be added to this list by covering Variation.”.
(14) (15) In Appendix B (Contract Price Adjustment Formula), paragraphs 1 and 2:
Delete all the wording after the heading “where” and insert:
For year 4 adjustment after a 3 year firm price period:
X = The index for the 22nd Month after the Commencement of Full Operations date;
Y = The index for the 34th Month after the Commencement of Full Operations date;
Z = The percentage to be applied to the year 4 calculated value using the Prices current at the end of year 3. The calculated value must exclude any abnormal costs such as capital expenditure written off in the initial Contract Period. This percentage will also apply to year 4 Rates.
For year 5 adjustment after a 3 year firm price period:
X = The index for the 34th Month after the Commencement of Full Operations date;
Y = The index for the 46th Month after the Commencement of Full Operations date;
Z = The percentage to be applied to the year 5 calculated value using the Prices current at the end of year 4. The calculated value must exclude any abnormal costs such as capital expenditure written off in the initial Contract Period. This percentage will also apply to year 5 Rates.
2. The index for both X and Y shall be obtained from the Average Earnings Index, table E.1 Public sector (actual) as published in “Labour Market Trends” produced by the Office for National Statistics and published by The Stationery Office.
(paragraphs 3 & 4 remain unaltered)
Note: NHS Trusts and other authorities which are not part of the Crown would
either need to make the appropriate changes or use the ProjecTeam model
version, which takes this problem into account. With the appropriate changes
(legal entity and insurance provisions are just two examples) the CUP GN59D
Conditions are suitable for use between authorities and use with In-House
Teams. It is recommended that each contracting authority creates a version of the
documents suitable for when the In-House Team provides the Services, whether as
the result of competitive tendering or otherwise.
Model Conditions have been prepared by ProjecTeam for use as a “Service Level
Agreement” both between authorities and with In-House Teams.
CUP GN 59D is drafted on the basis that the Contract will include Section 3:
Specification and Section 4: Schedule of Prices and Rates. The Notes to CUP GN
59D contain over 20 references to action being required in regard to other Sections
of the Contract, including several references to Section 5: Administration
Instructions: see the Notes to Condition 17 (Progress Reports), Condition 19
(Payment and Value Added Tax), Condition 32 (Transfer and sub-contracting),
Condition 36 (Variation). It then becomes appropriate for all the Appendices (A
to F) to be removed from Section 2, with corresponding amendments to the
drafting of Section 2, and located in Section 5 together with the other matters
referred to in relation to the return of tenders under CUP GN 59C.
Section 5 is the appropriate location for all administrative matters (including
the Parties’ addresses under Condition 32 (Service of Notices and
Communications)) and matters which are crucial to the management of the
Contract, such as performance monitoring through monthly review meetings and
performance reports.
Appropriate modifications to CUP GN 59D, together with a model framework for
Sections 3, 4 and 5, are incorporated in the ProjecTeam model documentation.
Further information regarding adaptations of the CUP GN 59 model documentation,
in particular the use of compatible Goods conditions can be found on the
ProjecTeam Internet site.
PLEASE CONTACT US IF YOU HAVE ANY COMMENTS REGARDING THE INFORMATION PROVIDED. OUR AIM IS TO ENCOURAGE CONTACT, CO-OPERATION, CONSISTENCY AND PROFESSIONALISM AMONGST ALL WHO ARE CONCERNED IN CONTRACTING
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E-mail: mdrake@projecteam.co.uk www.projecteam.co.uk