7.11.1 If the Authority self-provides services then it should ensure that it does not prevent the Contractor from carrying out its obligations under the Contract.
7.11.2 It is anticipated that, in the majority of cases, the Authority will meet its services obligations by contracting with service providers under general commercial services agreements. This will result in Authority Service Providers having to work on the Site alongside the Contractor who will be carrying out its obligations under the Contract. These arrangements will need a certain amount of co-ordination to ensure that the Authority Service Providers, when carrying out their activities, do not prevent the Contractor from carrying out its obligations under the Contract.13
7.11.3 Accordingly, the Authority should undertake not to prevent the Contractor from carrying out its obligations set out in the Contract and the Contractor should undertake not to prevent the Authority Service Providers from carrying out their obligations. It is assumed in the Contract that the Authority will take responsibility for the actions of the Authority Service Providers (and they will therefore be included in the definition of Authority Related Party) and the Contractor's sub-contractors will be Contractor Related Parties.
7.11.4 As there may be many parties using the Site - Authority, Contractor, Authority Service Providers and Contractor sub-contractors, it is expected that service delivery will be enhanced if all these parties co-operate with each other and act in a manner so as not to impede the others in the carrying out of their activities.
Suitable drafting is as follows:
7.11.4 Authority and Contractor Services Undertakings and Duty to Co-Operate
(a) The Authority undertakes to the Contractor that it shall not wilfully impede the Contractor in the performance of its obligations under this Contract, having regard always to (i) the interactive nature of the activities of the Authority and of the Contractor and (ii) the use of the Facility and any other operations or activities carried out by the Authority on or at the Site for the purposes contemplated by this Contract or any other of the Authority's statutory duties or functions;.
(b) The Contractor acknowledges that the Authority and/or the Authority Service Provider shall require access to the Site for the purposes of providing, operating and maintaining the Authority Services and the Contractor undertakes to the Authority that it shall not wilfully impede the Authority, and/ or the Authority Service Providers in the performance of its/their services obligations under the Contract and [insert details of the commercial services agreements] as appropriate.14
(c) The Contractor acknowledges that the Authority Service Provider will be providing Authority Services on or at the Site and the Contractor shall co-operate with and not impede the Authority Service Provider and shall enter into an Interface Protocol15 with the Authority and the Authority Service Provider.
(d) The Authority will procure that the Authority Service Provider will co-operate with and not impede the Contractor;16
(e) The Contractor will procure that [(a)] the Contractor Sub-Contractors will co-operate with and not impede the Authority; [and (b) the Contractor [FM Service Provider] shall enter into an Interface Protocol with the Authority and the Contractor].17
(f) Each Party agrees to co-operate, at its own expense (but without, unless otherwise specified, being compelled to incur material expenditure), with the other Party in the fulfilment of the purposes and intent of this Contract. Neither Party shall be under any obligation to perform any of the other's obligations under this Contract.
7.11.5 As the Authority is responsible for providing the Authority Services consideration needs to be given to the situation where (a) these services are unable to be provided as intended; and/or (b) these services are provided in a manner which interferes adversely with the Contractor's performance.
7.11.6 Where an Authority Service is not provided and this is because of a breach by the Contractor of its obligations under the Contract (or of its obligations in respect of Contractor sub-contractors) then this may constitute a Contractor Default if the Authority is affected materially so that it is unable to carry out its expected activities. Where however a Contractor Default is not triggered, because the breach is not so significant to prevent the Authority from carrying out its expected activities, but, nevertheless, the Authority Service cannot be provided, then alternative forms of redress should be sought and obtained.
7.11.7 Redress could be obtained through the payment mechanism if, for example, it contained a KPI specifying that a deduction would be made if the Contractor's actions/inactions prevented the Authority Service being provided as intended, with the quantum of the deduction reflecting the loss which the Authority sustained because of non-performance of services.18 Additionally, to the extent that a binding Interface Protocol is entered into between the Contractor, the Authority and the Authority Service Provider then the Authority and the Authority Service Provider may be able to receive redress directly by virtue of the operation of the protocol.
7.11.8 Where the Contractor cannot carry out its contractual obligations directly because of what the Authority and/ or the Authority Service Providers have done or have failed to do then it is to be expected that the Contractor will require relief from its obligations and/or it will want to ensure that it does not suffer deductions under the Payment Mechanism. Further, where there is a binding Interface Protocol in place then the Contractor may seek to get redress through using it.
Suitable drafting is as follows:
7.11.8.1 Authority Services Excusing Cause
If an Authority Services Excusing Cause interferes adversely with, or causes a failure of, the performance of the Services and/or causes the occurrence of a Service Failure and provided that the effect of such Authority Services Excusing Cause is claimed within ten (10) Business Days of the date on which the Contractor became aware (or ought reasonably to have become so aware) of the occurrence of the Authority Service Excusing Cause, then (subject to Clause 7.11.8.4 below to the extent such failure or interference or occurrence of a Service Failure arises as a result of such Authority Services Excusing Cause:
(a) such interference shall be taken account of in measuring the performance of any affected Service in accordance with the performance monitoring system which shall be operated as though the relevant Service had been performed free from such adverse interference; and
(b) any such Service Failure shall be deemed not to have occurred, so that the Contractor shall be entitled to payment under this Contract as if there had been no such interference with the performance of the Services.
7.11.8.2 An Authority Services Excusing Cause means:
(a) any breach of any express provision of this Contract [and/or the Interface Protocol]19 by the Authority or any Authority Service Provider (unless, and to the extent, caused or contributed to by the Contractor or any Contractor Related Party);
(b) any deliberate act or omission of the Authority or of any Authority Service Provider or any failure by the Authority or Authority Service Provider (having regard always to the interactive nature of the activities of the Authority and of the Contractor) to take reasonable steps to carry out its activities in a manner which does not impede the Contractor in the performance of the Services, save where (and to the extent):
(i) caused or contributed to by the Contractor or any Contractor Related Party;
(ii) the Authority or Authority Service Provider is acting in accordance with a recommendation or instruction of the Contractor or any Contractor Related Party;
(iii) any such act or omission giving rise to such failure was within the contemplation of the parties or was otherwise provided for in this Contract ; or
(iv) the consequences of any such deliberate act or omission or other acts or omissions giving rise to such failure would have been prevented by the proper performance of the Contractor's obligations under this Contract; or
(c) the carrying out of planned maintenance in accordance with the agreed Schedule of Planned Maintenance.
7.11.8.3 Where in this Clause a cause is said to be an Authority Services Excusing Cause, save to the extent that some other cause operates, the relevant financial effects of the said cause shall be apportioned between the Authority or Authority Service Provider on the one hand and the Contractor on the other, by reference to the respective influence of each cause.
7.11.8.4 The Contractor shall take all reasonable steps to mitigate the consequences of an Authority Services Excusing Cause on its ability to perform its Services obligations under this Contract. To the extent that the Contractor does not take such steps it shall not be entitled to, and shall not receive, the relief specified in this Clause.
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13 For example if an Authority cleaner blocked access to a room this could result in the Contractor being unable to gain access to carry out maintenance and so suffer a deduction under the Payment Mechanism.
14 Where any required commercial services agreements have not been entered into by the Authority before the Contract has been agreed, general details of the Authority Services required should be set out. In addition a process should be agreed with the Contractor whereby (1) it will be informed of the details of the Authority Services to be provided when available; and (2) it will be given an opportunity to agree an interface protocol with the Authority Service providers - see footnote 15 below.
15 The Interface Protocol will set out detailed provisions regarding how all the parties providing services will, on a day-to-day basis, co-operate and work with each other at the Site. It is optional as to whether the Interface Protocol should be binding or not. In some situations, where for example the Authority Service Provider is within the same group of companies as the Construction Sub-Contractor then it may well be appropriate to make the Interface Protocol binding on all the signatories to it and provide for redress should there be non-compliance. See footnote 16.
16 The Authority will need to decide whether or not it wishes its service provider and / or the Contractor's service providers to be a party to the Interface Protocol and whether or not it wishes the Protocol to also be legally binding. Where the Authority Service Provider is not a company used for complex PFI/PF2 schemes the Authority may prefer it not to be a party to the Interface Protocol and for the Protocol not to be legally binding. See further Section 7.21 (Disputes) below.
17 See footnote 16 above.
18 Deductions should be determined on a case by case basis. In calculating this loss account should be taken of all of the consequences arising out of the loss of the service including the compensation or redress which the Authority will have to bear under any separate commercial agreements it has entered into with its Authority Service Providers.
19 Use only where the Authority wishes the Interface Protocol to be binding.