Provision Language
SCHEDULE 1: KEY PROVISIONS
24. Performance
24.1 The parties agree that Schedule 10 shall have effect.
24.2 With effect from the Commencement Date the Supplier must ensure that it performs this Contract at all times in a manner which meets or exceeds the Performance Levels.
24.3 Notwithstanding any of its other obligations under this Contract, the Supplier must monitor its performance against the Performance Levels in accordance with the Performance Monitoring System. The Supplier must provide the Authority with a report as soon as reasonably practicable (but in any event within four (4) weeks of the end of each Quarter) specifying, , the Supplier’s performance against each of the Performance Levels in accordance with the timescales set out in Annex B of Schedule 10, including full details of any failure to meet the Performance Levels and a statement of any Performance Credits due against each Performance Level and in aggregate.
24.4 The Authority shall be entitled to audit the Supplier’s compliance with clause 24.2 under clause 24 of Schedule 2.
24.5 If Supplier’s performance of this Contract does not comply with the Key Performance Levels or else if no report (or a report that does not detail all Key Performance Levels that were due to be measured) pursuant to Clause 24.3 of this Schedule 1 is provided by the Supplier (in which case there will be a presumption that all Performance Levels were at Red Level or all such Performance Levels in respect of which the report is incomplete, were at Red Level), the Authority shall be entitled to a Performance Credit payable by the Supplier in respect of those Performance Levels as set out in Schedule 10.
25.6 Performance Credits shall be a debt due by the Supplier to the Authority for the Quarter to which they relate which the Authority may set off against any amount the Authority owes to the Supplier. Performance Credits shall be deducted by the Supplier from the Contract Price in the invoice issued in accordance with Commercial Schedule following the determination of the Performance Credits due in accordance with the reports provided pursuant to clause 24.3. Any Performance Credits not deducted in accordance with this clause 24.6 shall immediately be payable to the Authority as a liquidated debt.
24.7 Nothing in this clause 24 shall restrict the Authority’s right to claim damages or any other remedy or to terminate this Contract under clause 15 of Schedule 2.
27.8 Without prejudice to any of its other rights under this Contract, the Authority shall be entitled to request a draft correction report from the Supplier in the event of a delay or failure in the delivery, completion or performance of any part of the Supplier’s obligations under this Contract, including any Amber Level or Red Level rating for any of the Performance Levels (a “Correction Report“). The draft Correction Report must identify the causes of the relevant delay or failure and the steps that the Supplier proposes to take to rectify (where possible) or mitigate the effects of such delay or failure.
24.9 The draft Correction Report must be submitted to the Authority for its approval (such approval not to be unreasonably withheld or delayed) promptly after the Supplier becomes aware of any such delay or failure in the delivery, completion or performance of any part of this Contract or promptly following a request from the Authority. The Supplier must incorporate into the revised draft of the Correction Report all reasonable requests or comments raised by the Authority to prevent the recurrence of any delay or failure in the Supplier’s performance of this Contract.
24.10 The Supplier must, at its own cost, promptly take the steps identified in the Correction Report approved by the Authority to prevent the recurrence of any delay or failure in the Supplier’s performance of this Contract.
25. Information Requirements
25.1 The Supplier shall provide the information specified in Annex B of Schedule 10 of the Contract in a timely manner and in any event within the applicable time period set out in Annex B of Schedule 10, and shall ensure its accuracy and completeness.
25.2 The Supplier shall provide the information specified in Annex B of Schedule 10 in such format as may be prescribed by the Authority from time to time.
SCHEDULE 2: GENERAL TERMS AND CONDITIONS
8. Contract management
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8.5 The Supplier shall provide such management information as the Authority may request from time to time within seven (7) Business Days of the date of the request. The Supplier shall supply the management information to the Authority in such form as may be specified by the Authority and, where requested to do so, the Supplier shall also provide such management information to another Contracting Authority, whose role it is to analyse such management information in accordance with UK government policy (to include, without limitation, for the purposes of analysing public sector expenditure and planning future procurement activities) (“Third Party Body”). The Supplier confirms and agrees that the Authority may itself provide the Third Party Body with management information relating to the Goods purchased, any payments made under this Contract, and any other information relevant to the operation of this Contract.
8.6 Upon receipt of management information supplied by the Supplier to the Authority and/or the Third Party Body, or by the Authority to the Third Party Body, the Parties hereby consent to the Third Party Body and the Authority:
8.6.1 storing and analysing the management information and producing statistics; and
8.6.2 sharing the management information or any statistics produced using the management information with any other Contracting Authority.
8.7 If the Third Party Body and/or the Authority shares the management information or any other information provided under Clause 8.6 of this Schedule 2, any Contracting Authority receiving the management information shall, where such management information is subject to obligations of confidence under this Contract and such management information is provided direct by the Authority to such Contracting Authority, be informed of the confidential nature of that information by the Authority and shall be requested by the Authority not to disclose it to any body that is not a Contracting Authority (unless required to do so by Law).
8.8 The Authority may make changes to the type of management information which the Supplier is required to supply and shall give the Supplier at least one (1) month’s written notice of any changes.
24. Records retention and right of audit
24.1 Subject to any statutory requirement and Clause 24.2 of this Schedule 2, the Supplier shall keep secure and maintain for the Term and six (6) years afterwards, or such longer period as may be agreed between the Parties, full and accurate records of all matters relating to this Contract.
24.2 Where any records could be relevant to a claim for personal injury such records shall be kept secure and maintained for a period of twenty one (21) years from the date of expiry or earlier termination of this Contract.
24.3 The Authority shall have the right to audit the Supplier’s compliance with this Contract. The Supplier shall permit or procure permission for the Authority or its authorised representative during normal business hours having given advance written notice of no less than five (5) Business Days, access to any premises and facilities, books and records reasonably required to audit the Supplier’s compliance with its obligations under this Contract.
24.4 Should the Supplier Sub–contract any of its obligations under this Contract, the Authority shall have the right to audit and inspect such third party. The Supplier shall procure permission for the Authority or its authorised representative during normal business hours no more than once in any twelve (12) months, having given advance written notice of no less than five (5) Business Days, access to any premises and facilities, books and records used in the performance of the Supplier’s obligations under this Contract that are Sub–contracted to such third party. The Supplier shall cooperate with such audit and inspection and accompany the Authority or its authorised representative if requested.
24.5 The Supplier shall grant to the Authority or its authorised representative, such access to those records as they may reasonably require in order to check the Supplier’s compliance with this Contract for the purposes of:
24.5.1 the examination and certification of the Authority’s accounts; or
24.5.2 any examination pursuant to section 6(1) of the National Audit Act 1983 of the economic efficiency and effectiveness with which the Authority has used its resources.
24.6 The Comptroller and Auditor General may examine such documents as they may reasonably require which are owned, held or otherwise within the control of the Supplier and may require the Supplier to provide such oral and/or written explanations as they consider necessary. Clause 24 of this Schedule 2 does not constitute a requirement or agreement for the examination, certification or inspection of the accounts of the Supplier under sections 6(3)(d) and 6(5) of the National Audit Act 1983.
24.7 The Supplier shall provide reasonable cooperation to the Authority, its representatives and any regulatory body in relation to any audit, review, investigation or enquiry carried out in relation to the subject matter of this Contract.
24.8 The Supplier shall provide all reasonable information as may be reasonably requested by the Authority to evidence the Supplier’s compliance with the requirements of this Contract.
SCHEDULE 10: PERFORMANCE LEVELS AND PERFORMANCE CREDITS – ANNEX B
Information Exchange
The Supplier must supply to the Authority (in such format as may be prescribed by the Authority from time to time) the information set out below:
1. Supplier Monthly Reporting Activity Report (Draft)
The Supplier shall provide to the Authority by the due date specified in Table 1, a report including as a minimum:
i. Purchasing Authority(ies)
ii. Product Description & Presentation
iii. Pack Quantity
iv. Quantity of Packs Delivered
v. Delivery Date
vi. Shelf Life at Delivery
2. Supplier Monthly OTIF Report (Draft)
The Supplier shall provide to the Authority by the due date specified in Table 1, a report including as a minimum:
i. Purchasing Authority(ies)
ii. Product Description & Presentation
iii. Requested Quantity
iv. Requested Delivery Date
v. Actual Quantity Delivered
vi. Actual Delivery Date
vii. OTIF (per line) viii. OTIF (overall for period)
3. Supplier Quarterly Report (Draft)
The Supplier shall provide to the Authority by the due date specified in Table 1, a report including as a minimum:
i. Average quantity of stock physically in the UK;
Additional information to be included in 2nd Quarterly Report of each Contract Year
i. Average quantity of manufactured product and API in the supply chain for each month and the whole period
Additional information to be included in 4th Quarterly Report of each Contract Year
i. Self–certification that Performance Levels 4, 5, 6 & 7 achieved Green Level performance throughout the reporting period;
ii. Evidence to support the self–certification. Examples of acceptable evidence include:
a. Performance Levels 4: i. a report detailing the purchase order date, requested delivery date and actual delivery date of orders to replenish stock in the UK.
For any Performance Level that fell below the Green Level, the Supplier must provide further details regarding the Amber or Red Level performance, the root cause, how long it remained below Green Level and the corrective action taken and/or planned.
4. Authority Quarterly Reporting (Draft)
The Authority shall provide to the Supplier by the fifteenth day in the month immediately following the Performance Period, or the next working day if the due date falls on a weekend or bank holiday date, a report including as a minimum:
i. Purchasing Authority(ies)
ii. Product Description & Presentation
iii. Quantity of Packs Delivered in the period (subject to confirming this data is available centrally)
iv. Quantity of Packs dispensed in the period
v. If available, why the product was dispensed (e.g. pathogen)
The Authority gives no warranty and makes no representation as to the accuracy of this information, and any failure on the part of the Authority to provide this information shall not be a breach of the Contract or otherwise give rise to any cause of action in favour of the Supplier (but without prejudice to the right of either Party to refer any issue relating to the calculation of the Contract Price to dispute resolution).
