Standard Draft Contract (Where Data Processing is an Element )

Standard Draft Form of Contract for Services (Where Data Processing is an Element of the Service)

(For Including with Invitation to Tenders)

Note: There is a separate draft form of contract (and associated guidance) for contracts which do not involve data processing. See the Related Pages section for this.

Legal Services has produced a standard form of contract for services, which can be used as a draft for new contracts which include an element of Data Processing within the performance of the Service; this is attached and has a number of added benefits, namely:

• potential suppliers will be aware of the Council’s contractual expectations;
• contract documents are required upfront with tenders over £25,000;
• consistency of terms across the Council; and
• quicker turn-around from award of contracts to completion of the final documentation.

The draft requires some details to be inserted before the document is sent out with Invitations to Tender (ITT) and in some places; the information cannot be entered until the successful supplier has been selected. The draft will require the following input from service departments. (Before) indicates what information is required before the ITT and (After) indicates where information should be inserted after the award:

• Contract title (page 1) (Before);

Parties and Background (After):

• Suppliers name (page 1 and 2);
• Company no. (if relevant) and address (page 2);
• Details of the procurement exercise undertaken (for e.g. ITT (most likely), use of a Framework (if the framework does not have its own terms and conditions) or Quotes (page 2);

Definitions:

• Commencement date (if known) (page 3) (Before);
• Initial Term (page 4) (Before);
• Insolvency Event definitions (g) & (k) delete if the Supplier is a company (page 5) (After);
• Necessary Consents definition insert details of any specific consents required for the services to be contracted (page 6) (Before).
• Delete Regulated Activity definition and Clause 13 in relation to children and vulnerable adults if not relevant or applicable for the services to be contracted (pages 6 & 7 and 16 & 17) (Before);
• Term definition delete (a) if the Initial Term of the contract will not be extended (page 7) (Before);
• Working Day definition vary to include Saturdays and Sundays (page 8) (Before).

Clauses:

If deleting the text of a clause retain the number and simply add [Not Used] in the clause heading. This will prevent problems with formatting and cross referencing of clause numbers throughout the agreement:

• Clause 3 - Option to Extend the Term, insert number of years to extend contract or delete clause (page 9) (Before);
• Clause 13 - Delete Regulated Activity Clause in relation to children and vulnerable adults if not relevant or applicable for the services to be contracted (pages 16 & 17) (Before);
• Clause 17 - Dispute Resolution (relevant Corporate Director and contractors nominated individual’s details required) (page 18) (After);
• Clause 21 - Insurance cover – currently set at £5 million for both employers and public liability – if higher is required due to contract value, please amend and consider if professional indemnity is necessary (page 20) (Before);
• Clause 23 – Data Protection – the way the Council requires is data to be processed after award of the contract and prior to commencement of processing must be confirmed by written instructions.  This can be confirmed after the award BUT if any requirements are known prior to the tender, these should be highlighted in the specification requirements in Schedule 1 (page 34) so that any potential supplier is aware of these (Before).
• Name and legal status of supplier is required (for correct attestation signing clause page 32) (After);

Schedule 1 – Services Specification – Page 33 (Before)

• Insert any background information to the contract; and
• List your specification requirements under the objectives heading.
• If there are any specific basic operational requirements expected for processing personal data, through performance of the contract, these should be highlighted at the outset (so that the potential suppliers are aware).

Note:

‍If the requirements for processing data are not known at the tender stage, Clause 23.2 requires the authority to provide written instructions on how data is to be processed and Clause 23.5 requires a Data Protection Impact Assessment to be prepared prior to any processing (After).

Appendix 1 (Before)

Include any professional/technical/qualification/licence requirements; and review whether any amendments are required to the example provided (page 34-5).

Appendix 2 (Before)

Use to identify any specific sites across the district which is relevant for the contract.  If not required delete (page 36).

Schedule 2 – Suppliers Tender (page 37) (After)

This will include the tender submission and any correspondence dealing with clarification etc. (page 37).

Schedule 3 – Charges and Payment (page 38)

Schedule of Rates will be inserted (After), you can request particular information to be itemised in the invoices (page 38) (Before).

Schedule 4 – Contract Management (page 39):

• Authorised Representatives will be named for both the Council and Supplier (After).
• Key Personnel – will normally be the contract manager for the supplier (After).
• Identify what type of reports you require and the frequency (Before).

Schedule 6 – Commercially Sensitive Information (page 43) (After):

Include the list of commercially sensitive information identified by the Supplier.

Schedule 7 - Authority’s Premises And Assets (Page 45) (Before)

Details of Authority Premises & any applicable Leases or Licences to be inserted & Authority’s Assets to which the Contractor will have access to – see Clause 8]

Note:

1. Legal Services can review the draft contract for you before including within the ITT, but please include the information identified as (Before).
2. Legal Services will review the draft contract after award, as the Supplier may (via the tender submission) have requested amendments to be made, which will need to be considered.
3. The draft has been produced on the basis that no specific KPIs are required however, if the contract specifically requires this, the appropriate clauses can be inserted.  Please contact Legal Services if this is required.