Clarification Question Log

Project: Provision of Learning and Development Services – DPS

ROUND INFORMATION

Please can suppliers take note that as per information contained within the PQQ and in Q1 here, rounds
will be closed every few days to allow the Authority to assess the submissions within the required 10 day
assessment period. As soon as one round closes, another one opens immediately, and so there is never
a time you are not able to submit your PQQ submission. The initial deadline of 19th June 2017 14.00
remains as a cut-off point to enable the Authority to establish the DPS as ‘live’, but thereafter suppliers will
still be able to apply to the DPS by submitting a PQQ to the portal during the life of the DPS – anticipated
to be for ten years.

Question Question Isle of Wight Council Response

No.
Can you please clarify the
1. submission date. It has just been
changes to 18/05/2017 (today) at
10:30. The opportunity was only
opened on the 12th so this is an
impossible timescale.
To clarify: we have had PQQ submissions already and to
meet the 10 day assessment requirement we have to close
‘Round 1’ to view and assess the submissions. Please do
not worry as Round 2 opens immediately as Round 1
closes and the initial deadline REMAINS as 19th June
2017 14:00.

2. I have a question regarding 1.4 1.4 is part of section 1 that is for information only, and so
Licencing and registration. It states if you are not registered with a professional body
registration with a professional body then simply say ‘no’. The issue around ROATP is picked
as an FE college I do not believe we up in question 9.2 where suppliers need to self-certify
have to register with professional either (a) registration on RoATP for Lot 1 or (b) confirm
bodies and the second question you employ training staff who have suitable and
also comments on being licensed or relevant teaching qualifications from a lead body for Lots
a member of a relevant 2 and 3.
organisation. Do both of these
include ROATP and awarding
bodies, I would just like to ensure I
answer the question correctly
3. Round Information – please see
information given at top of
document
Question Question Isle of Wight Council Response
No.
4. A) Overall Impression A) Overall Impression

We has reviewed the “Terms and Unfortunately we cannot accept any potential supplier to
Conditions (Relating to the make appropriate Terms and Conditions if
Provision of Learning and successful. The terms and Conditions are set out at this
Development Services)”, as stage of the tender process and cannot be negotiated not
supplied with the request to at or during the award process.
complete the “Isle of Wight Council
(the Authority) Pre-qualification The ESFA Apprenticeship Funding rules are
Questionnaire (PQQ) for the automatically covered by the requirement within Lot1 of
provision of Learning and the PQQ, stating that all suppliers are required to be
Development through a Dynamic registered on the Skills Funding Agency’s Register of
Purchasing System (DPS)”. We Apprenticeship Training Providers (RoATP)
have notes that although relating to
“the provision of Learning and
Development”, the documentation
supplied does not reflect the
regulations relating to
apprenticeships or the
requirements of the Education and
Skills Funding Agency (ESFA). In
the event we are successful, we
will work actively with you to put in
place appropriate contract terms.

We also have notes that the

“Terms and Conditions (Relating to
the Provision of Learning and
Development Services)” do not
reflect the ESFA apprenticeship
funding rules. Any resulting
agreement should contain
provisions describing the
Authority’s apprenticeship
responsibilities, to comply with
Education and Skills Funding
Agency funding rules, as well as
the equivalent provisions relating to
the our responsibilities relating to
those rules.

We would expect, as a
minimum, the following
documentation to be included in
any commercial agreement and
to take precedence over any other
terms and condition. T&Cs:
Question Question Isle of Wight Council Response
No.
5. A) The ESFA apprenticeship funding a) b) c)
and performance management
rules 2017 to 2018
https://www.gov.uk/government/publication All of these queries are covered by the
s/apprenticeship-funding-and-performance- requirement that potential suppliers need to be registered
management-rules-2017-to-2018 (and may on RoATP.
be amended in subsequent years);

b) the ESFA / employer apprenticeship

funding: legal agreement to enable
spending
SFA agreement for employers
(apprenticeship service);

c) Apprenticeship funding: legal

agreement for training provider’s
https://www.gov.uk/government/public
ations/apprenticeship-funding-legal-
agreement-for-training-providers
6. Terms and Conditions (Relating to 1.1
the Provision of Learning and
Development Services): We (The Isle of Wight Council) are both the Employer and
the Customer as the contract would be agreed with the
1.1 “Deliverables”: NB as stated authority and not the individual students.
below under 8.2, All Services,
Deliverables and content in our
apprenticeship courses are to the
respective students. No Services,
deliverables or content are provided
to the employer themselves (in the
case, the Authority
7. 3.2 The phrase “and time is of 3.2 3.32 3.3.6
the essence in relation to any of
those performance dates” should Unfortunately we won’t be deleting or revising any of
be deleted. We feel that this is not these comments.
appropriate to an apprenticeship
course and certainly not to a
distance based learning course,
which is designed specifically to
enable the student to develop at his
or her own pace.

3.3.2 We request that this

shall be amended to state “the
reasonable care, skill and
diligence expected of a
competent supplier of such
Services”

3.3.6 We request that this

shall be deleted: it is not appropriate
for apprenticeship courses.
Question Question Isle of Wight Council Response
No.
8. 3.3.11 We request that this is 3.3.11 4
amended to “save that the Supplier
will not be responsible for any Unfortunately we will not be removing, amending or
reliance made by the Authority adding to any of these comments
which causes the Authority to lose
any licence, authority, on sent or
permission where it would not be
reasonable for the Authority
to rely the Services for the
purposes of conducting its
business; and”

4We request that the authority shall

insert here a sub-clause stating
that it will pay for any services
already provided and costs
incurred by the Supplier, but not
yet invoiced, at the time of
termination
9. 6.2 This clause shall require 6.2
amending to meet the ESFA
apprenticeship funding and This clause is covered by the requirement that potential
performance management rules suppliers need to be registered on RoATP.
2017 to 2018 and associated terms
and conditions. The Supplier does
not wait until the apprenticeship
has been complete (3 years plus)
before invoicing
10. 8.2 & 9.1 8.2 & 9.1
All Services, deliverables and
content in our apprenticeship We (The Isle of Wight Council) are both the
course are to the respective Employer and the Customer as the contract would
students. No Services, deliverables be agreed with the authority and not the individual
or content are provided to the students
employer themselves (in the case,
the Authority). Any third-party rights
in the Services, deliverables and
content are to the respective
students.

Should the Authority require rights

to any of the Services, deliverables
and / or content in an
apprenticeship, this shall be
subject to separate negotiations
and shall be separately
chargeable.

Each of clauses 8.2 and 9.1 shall

require amending to reflect the
above
Question Question Isle of Wight Council Response
No.
11. 9.1.2 We find this unacceptable; 9.1.2
we request that it is either deleted or Unfortunately this clause shall not be removed or
made specific to this delivery amended.

12. We are also subject to the FOIA. 12

Therefore, this clause must be
amended in its entirety to reflect This clause will not be changed, modified or amended.
these mutual obligations under the
FOIA 13.1.2

This comment shall remain at one month’s written notice

13. 13.2.1 Please amend to ten 13.2.1

Business Days
This clause shall not be changed or amended.

14. 14.1 As previously stated under 14.1

the IP clause 8.2, there are no
deliverables to the employer We (The Isle of Wight Council) are both the Employer
themselves. Please amend this and the Customer as the contract would be agreed with
clause accordingly. the authority and not the individual students
Question Question Isle of Wight Council Response
No.
15. Q4: A4: Unfortunately we won’t be issuing a cap.
We are required at clause 9 to give
a broad indemnity against all
possible losses that the customer
may suffer. It would be preferable
to have the whole indemnity
capped at the contract value but
clause 9.1.2 at least. I would also
like to include some wording which 13.1.2
caps our potential for direct This clause won’t be amended on this occasion.

Clause 13.1.2 allows the customer

to terminate for convenience on the
provision of one months' notice. I
suspect this is included as this is a
standard contract used by the 3.3.4
council to procure other goods and
services but I think would be quite The specific requirement will be set out in any mini
problematic for us given that we competition once published on the DPS.
may have prepared course
documentation etc and the clause
doesn't allow for any compensation
on termination for convenience.

Q4: To be aware of, the clause 7

effectively makes this an open
book contract with the council able
to access all records on the service
at will.

Clause 3.3.4 states that we must

ensure that any deliverables
comply with any purpose that the
Authority has 'impliedly' made
known to the University, to my
mind if the customer has specific
requirements this should be
specifically set out in the contract.

16. My company is considering

submitting to the DPS. However,
although we have much experience
of training, development and
coaching, we are not accredited
with a provider for our courses - is
this an automatic disqualification?
In addition, are there minimum
turnover requirements?
There is no restriction on turnover or how long the
company has been registered but for future mini
competitions going forward for all 3 Lots we will be
looking much closer at credibility and quality which may
or may not include the requirement to be accredited.
Not being accredited does not automatically disqualify
you for Lots 2, 3 or Lot 1 but we would expect you be
RoATP (Register of Apprenticeships Training Providers).
Question Question
No.
17. In reference to 5.4 please can you
clarify as to the information needed
to answer "including evidence as to
your technical capability in this
market".
18. Are any indicative annual
values/volumes per lot available
please?
19.
With regards to the following
requirement under Lot 2 -
"Certification of competence in
accreditation such as a lead body
certified e.g. “Future Qual”
Please could you confirm if being
recognised by HSE/the government
as a Voluntary Aid Society is
enough to meet this requirement?
Isle of Wight Council Response
Potential suppliers should include details such as, but not
limited to, their experience in the area, qualifications,
delivery, and was offered in that contract that is relevant
to applying to join the Isle of Wight Council’s Learning
and Development DPS.
As per the OJEU Contract Notice (2017/S 091-180230)
The indicative contract values per lot, for the whole 10
year duration of the DPS, are:
Lot No: 1 Apprenticeship Programmes - £1,690,000.00;
Lot No: 2 - First Aid and Health and Safety Training –
£250,000.00;
Lot No: 3 - Generic Continuous Professional
Development (CPD) Activity for Isle of Wight Council staff
- £300,000.00
It would depend on the voluntary aid society and whether
or not they are recognised by the government/HSE to
deliver the courses specified and follow the syllabus set
by the HSE or the awarding organisation.
20. 8.2 Intellectual Property Rights - If
"Deliverables" is to include training
materials please could we request
the removal of this clause? As a
training provider we cannot grant
license to copy and modify
Intellectual Property that forms the
core of our business model.
This clause enables the Council to have a licence to copy
and modify the Deliverables for the purpose of receiving
and using the Services and the Deliverables. Clause 8.2
says; “The Supplier grants to the Authority, or shall
procure the direct grant to the Authority of, a fully paid-up,
worldwide, non-exclusive, royalty-free perpetual and
irrevocable licence to copy and modify the Deliverables
(excluding Authority Materials) for the purpose of
receiving and using the Services and the Deliverables.”
The “Deliverables” as defined are, “all documents,
products and materials developed by the Supplier or its
agents, contractors and employees as part of or in
relation to the Services in any form or media, including
drawings, maps, plans, diagrams, designs, pictures,
computer programs, data, specifications and reports
(including drafts);” We would consider that the training
material would form part of the definition of
“Deliverables”.
We propose however to delete the entirety of clause 8
and replace with the following:
8. Intellectual Property Rights
8.1 The Authority and its licensors shall retain
ownership of all Intellectual Property Rights in the
Authority Materials.
8.2 The Authority grants the Supplier a fully paid-up,
non-exclusive, royalty-free, non-transferable licence to
copy and modify the Authority Materials for the term of
the Agreement for the purpose of providing the Services
to the Authority in accordance with the Contract.
8.3 The Supplier and its licensors shall retain
ownership of all Supplier IPRs except where the
Deliverables have been created exclusively for the
purpose of performing the Services whereupon
ownership of the Intellectual Property Rights in those
Deliverables shall vest in the Authority on creation.
8.4 The Supplier grants the Authority, or shall procure
the direct grant to the Authority of, a fully paid-up,
worldwide, non-exclusive, royalty-free, licence to copy
and modify the Supplier IPRs for the purpose of receiving
and using the Services and the Deliverables.
8.5 The Authority may sub-license the rights granted
in Clause. 8.4.
8.6 The Supplier shall indemnify the Authority against
all liabilities, costs, expenses, damages and losses
(including but not limited to any direct, indirect or
consequential losses, loss of profit, loss of reputation and
Question Question
No.
21. 9.1 Indemnity - The Supplier is
being asked to indemnify for direct,
indirect, and consequential loss,
including loss of profit etc. Please
could we request that this is
amended to direct losses only?
Isle of Wight Council Response
all interest, penalties and legal costs (calculated on a full
indemnity basis) and all other reasonable professional
costs and expenses) suffered or incurred by the Authority
arising out of or in connection with any claim brought
against the Authority for actual or alleged infringement of
a third party’s rights (including any Intellectual Property
Rights) arising out of, or in connection with, the receipt,
use or onward supply of the Services by the Authority
and its licensees and sub-licensees. This Clause 8.6
shall survive termination of the Contract.
We also propose to add a new definition of “Supplier
IPRs” which will be defined as, “all Intellectual Property
Rights either subsisting in the Deliverables (excluding
any Authority Materials incorporated in them) or
otherwise necessary or desirable to enable a customer to
receive and use the Services.”
We note your request and propose that we amend clause
9 (Indemnity) as shown below. We have added in a new
clause 9.3 and removed the reference to indirect or
consequential at clause 9.1:
9.1 The Supplier shall indemnify the Authority against all
liabilities, costs, expenses, damages and losses
(including but not limited to any direct losses, loss of
profit, loss of reputation and all interest, penalties and
legal costs (calculated on a full indemnity basis) and
all other reasonable professional costs and expenses)
suffered or incurred by the Authority arising out of or
in connection with:
9.1.1 any claim brought against the Authority for actual or
alleged infringement of a third party’s intellectual property
rights arising out of, or in connection with, the receipt, use
or supply of the Services (excluding the Authority
Materials); and
9.1.2 any claim made against the Authority by a third
party arising out of, or in connection with, the supply of
the Services.
9.2 This clause 9 shall survive termination of the
Contract.
9.3 Neither party shall be liable to the other party,
whether in contract, tort (including negligence), breach of
statutory duty, or otherwise, for any indirect or
consequential loss arising under or in connection with this
agreement
Question Question
No.
22. 9.1.1 Indemnity - Supplier is being
asked to indemnify for an alleged
infringement. Please could this be
amended to only indemnify for
actual infringement?
23. 13.1.2 Termination - Please could
the right to terminate be made
mutual?
24. 15.2.1 Assignment and other
dealings - The Authority may
assign/ deal etc without permission
of the Supplier. Please could we
request that this clause is
amended to require the
supplier's permission as it
present a reputational risk to
ourselves as a supplier to have
no control over who we are
working with?
25. Regarding Apprenticeship delivery, our
delivery is 100% online remote in
week-long blocks. Is this acceptable
under your DPS? We will not be able
to accommodate on-site training or day
release.
Isle of Wight Council Response
Limb 9.1.1 says, “any claim brought against the Authority
for actual or alleged infringement of a third party’s
intellectual property rights arising out of, or in connection
with the receipt use or supply of the services (excluding
the Authority Materials); and” The indemnity is in respect
of a claim. It may not be certain whether there has been
an actual or alleged infringement from the claim. The
claimant may be alleging that an infringement took place
but there will still be a claim. We therefore reject the
request to amend this provision.
The clause as drafted states, “for convenience by giving
the Supplier’ one months’ written notice”. We propose
that clause 13.1.2 is amended to read: “for convenience
by giving the Supplier three months’ written notice”. We
have concerns with regard to the inclusion of a provision
that enables the Supplier to terminate the contract early
at its own convenience but are prepared to add in a
provision that enables the Supplier to terminate early with
the consent of the Authority. We therefore propose a new
clause is added as 13.1A saying, “Without affecting any
other right or remedy available to it, either party may
terminate this Contract at any time, in whole or in part,
with the expressed written consent of the other party.
Where termination is in accordance with Clause 13.1A
the parties shall agree the period of notice required”
Clause 15.2.1 says that, “The Authority may at any time
assign, mortgage, charge, subcontract, delegate, declare
a trust over or deal in any other manner with any or all of
its rights and obligations under the Contract.” We
propose that clauses 15.2.1 and 15.2.2 are amended as
shown below:
15.2.1 – “The Authority shall not assign, transfer,
mortgage, charge, subcontract, declare a trust over or
deal in any other manner with any of its rights and
obligations under the Contract without the prior written
consent of the Supplier, such consent not to be
unreasonably withheld.”
15.2.2 - “The Supplier shall not assign, transfer,
mortgage, charge, subcontract, declare a trust over or
deal in any other manner with any of its rights and
obligations under the Contract without the prior written
consent of the Authority, such consent not to be
unreasonably withheld.
Under the DPS the Authority may require face to face,
online or a blended learning approach and the
requirements are detailed in each mini-competition
issued however, we feel that in general 5 whole days of
online learning in one block would potentially place a high
level of expectation on both the learner and the
manager/team that they work within.
Question Question Isle of Wight Council Response
No.
26. Please note that Section 5.4 in the PQQ Learning and Development Services DPS
Document has been updated. This section originally stated the following; “In no more
than 500 words, please provide a brief description of the contract delivered including evidence
as to your technical capability in this market.”

It has been updated and now reads the following: “In no more than 500 words, please provide
a description of the contract delivered including evidence as to your technical and professional
ability in this market.”
27. Please note that Section 5.4 in the PQQ Learning and Development Services DPS
Document has been updated. This section originally stated the following; “It has been
updated and now reads the following: “In no more than 500 words, please provide a
description of the contract delivered including evidence as to your technical and professional
ability in this market” (As per above)

It has been updated and now reads the following: “In no more than 500 words per contract,
please provide a brief description of the work delivered, including evidence as to your technical
capability in this market e.g trainer experience/qualifications.”