Compared with the original Scottish Standard Health PPP Contract, some additional clauses and amendments to standard clauses have been included and some deletions have been made to reflect changing circumstances, the different types of procuring authorities, more straightforward facilities (as compared with acute healthcare) and simplified risk transfer (in the light of changing accountancy treatment). These include:
• A narrowly defined scope of hard FM service (Schedule Part 12).
• The payment mechanism has been developed using concepts from both the NHS and schools sectors (Schedule Part 14) and provide a standard approach for accommodation projects across sectors (although it is recognised that may need to be developed further for acute health projects and in this regard NHS bodies must liaise with SFT).
• Equity return sharing and capping for hub DBFM projects and a mechanism for payment of surpluses to the Authority for NPD projects (Clause 36).
• A small number of clauses have been dropped from the standard form on the basis that they have been found to be of little or no practical benefit in operational projects. These include Disaster Plan (Clause 10), Liaison (Clause 12) and Custody of Financial Model (Clause 36).
• In some cases clauses have been replaced with drafting taken from other market precedents/standard forms. These include the Authority Step-in and Warning Notices mechanisms (Clause 24).
• The following material changes have been made to the risk transfer:
o Title risk (other than the risk of compliance with disclosed title information and/or Reserved Rights) is taken by the public sector (Clause 9 and Schedule Part 5).
o Risk of physical works being required to the facilities as a result of any unforeseen change in law during the operational period is retained by the Authority (Clause 32).
o Energy usage and price risks are retained by the Authority, but service standards have been added to incentivise the service provider to do those things that significantly influence energy consumption and are within its control.
o Insurance premium risk sharing in relation to market-related changes has been dropped so that insurance premiums become mainly a pass-through cost, but measures have been added to ensure that the project insurances are procured on terms that represent best value for money for the Authority (Schedule Part 14 and Schedule Part 15).
The changes to risk transfer have been made to improve value for money in the belief that historically either little or no risk transfer was achieved in practice or else the risks transferred were being fully priced by the private sector and, therefore, paid for by the public sector whether or not the risk actually occurred.
• Changes of approach have also been adopted in relation to other risks:
o Energy efficient design will be a design requirement and will be managed through design review, monitoring during construction and testing by appropriate completion tests prior to handover.
o Malicious damage will be a public sector risk although the service provider will still provide the reactive maintenance to rectify malicious damage, subject to reimbursement of costs. The Authority will be best placed to manage this risk given that it will, as standard, be retaining responsibility for security and portering/janitorial services at the facilities and so any attempt to transfer this risk to the private sector is unlikely to represent value for money.
o Internal decoration, window cleaning (and floor coverings) and Authority equipment are excluded from the maintenance service. The Authority will have minimum periodic maintenance obligations for these items. The service also excludes PAT testing of the Authority's electrical equipment.
o Variations are regulated by a version of the Change Protocol developed for the BSF programme in England. The SFT intends to use experience from projects to produce a standard catalogue for Low Value Changes that it will provide as supplementary guidance in due course. The Change Protocol includes an option that allows the Authority to carry our certain very minor classes of changes for itself.
o Additional drafting is provided in Appendix 2 of this Guide to deal with issues that are commonly encountered on individual projects, such as planning challenge or unforeseeable asbestos, and should be used where these are relevant to particular projects. Appendix 2 also contains alternative drafting to deal with sector and/or Authority specific matters.