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Clause 15
Clause 15:
‘INTERACTION WITH ICT SERVICE LINES
The CONTRACTOR shall provide Services for each AMS service line for which it is the Service Line Provider.
The CONTRACTOR shall interact with the Other Service Line Providers and carry out any required obligations identified and described in Application Management Responsibility Matrix.
The CONTRACTOR shall, subject to any obligations of confidentiality and to the protection of the CONTRACTOR’s Intellectual Property Rights, share all information reasonably required by any Other Service Line Provider for that Service Line Provider to discharge their obligations. This information may include but not be limited to:
design specifications; and
Service management information (for example capacity reports and security information).
Each Service Line Provider will provide advice and guidance in accordance with the Service Model in order to facilitate the smooth integration of Services impacting other relevant Service Lines, including the integration of ICT projects (including on-board and off-board of Services) where they impact any Services delivered by the AUTHORITY, Other Service Line Providers, or third party suppliers in particular to:
ensure compatibility and consistency across Service
Lines and associated solutions;
minimise disruption to the AUTHORITY’s staff and operations;
in the event that the above advice and guidance for the integration of an ICT project requires a Service Line Provider to either: go beyond a reasonable level, such that their ability to provide the agreed Service is affected; or go beyond such advice and guidance, then this work shall be undertaken in accordance with the HOT Service Model Change Management process, as appropriate’
Each Service Line Provider will undertake the HOT Service Model Change Management process, as appropriate:
co-ordinate one or more projects with change impact analysis which will affect the AUTHORITY’s Services;
undertake planning and scheduling with change impact analysis due to projects being undertaken by Other Service Line Providers;
assist in the development of appropriate contractual terms for third parties introducing technologies into the AUTHORITY’s environment as necessary to facilitate the introduction support and maintenance of new Service Lines, Service Line Provider, Services or solutions required by the AUTHORITY.
The Service Line Provider shall (subject to any obligations of confidentiality and the protection of the Service Line Provider’s Intellectual Property Rights) work collaboratively and openly together, and with the AUTHORITY’s staff as required to support the Service Model and to deliver the Services efficiently and effectively’.
The general obligations at Clauses 5.1 and 5.2 do not of themselves make DBS liable, without more, for the absence of or delays in the provision of information which is required by TCS to perform their role in delivering the Solution. Indeed, the opposite is true: establishing a breach of either of these clauses entails demonstrating that the absence of or delay in information resulted from a failure on the part of DBS to co-operate or to use reasonable endeavours to ensure that the necessary information was provided within such timescales as TCS may reasonably have established. DBS does not deny the existence of such general obligations but does deny their relevance to the case advanced by TCS. Mr Croall accepted that, to the extent that any particular failure said to be the cause of Delay can specifically be attributed to a breach by DBS of one of these two clauses, that would be an Authority Cause for the purposes of Clauses 5 and 7. However, Mr Cogley also rightly accepted that in order to establish a breach of the first part of Clause 5.2, for example, it would be necessary to prove both (a) the absence of information and (b) the way in which that absence arose out of a failure by DBS to have co-operated.
As to Clauses 15.4 and 15.6, TCS was a ‘Service Line Provider’ for Application Management Services and Application Development. HPE was a separate Service Line Provider. TCS recognises that, given that HPE was not party to the Agreement, Clauses 15.4 and 15.6 did not impose any direct obligations on DBS’s other Service Line Providers. However, TCS’s case at paragraph 26.2 of the Amended Particulars of Claim, is that these clauses ‘comprised warranties given by [DBS] in respect of the conduct of its other Service Line Providers’.
I do not accept that these clauses can be construed as comprising warranties by DBS in favour of TCS in respect of the activities of other Service Line Providers for the following reasons:
there is simply no natural and ordinary language which states that these clauses amount to a warranty by DBS in respect of the actions of Other Service Line Providers. The absence of such language is a powerful indicator that the parties’ intention was not that these clauses created a warranty for the benefit of TCS;
this is particularly so where there is a specific part of the body of the Agreement which is dedicated to ‘Warranties’ (Clause 45), which also excludes all warranties ‘[e]xcept as expressly stated in this Agreement…’;
the clause imposes obligations on ‘Each’ Service Line Provider in relation to (amongst others) ‘Other Service Line Providers’. ‘Other Service Line Providers’ is a defined term. It means, ‘any supplier other than the CONTRACTOR which delivers services equivalent to the Services to the AUTHORITY…’. If ‘Other Service Line Providers’ means every Service Line Provider other than TCS, the reference to ‘Each Service Line Provider’ in the Agreement can only be a reference to TCS;
the natural meaning of Clauses 15.4 to 15.6 (and Clause 14.9 which is worded in a similar way, by reference to ‘Each Service Line Provider…’) is that the clause sets out what all Service Providers are required to do, and given that TCS is a Service Provider in respect of the specific Services forming part of the Agreement, TCS must therefore comply with these clauses for the benefit of DBS, not that DBS warrants that others will comply for the benefit of TCS;
the strongest point of construction as a matter of language in favour of TCS’ position is that these clauses start with ‘Each Service Line Provider’ rather than saying more simply (for example) ‘The Contractor shall…’ (in contradistinction to Clause 15.1 to 15.3). However, this anomalous wording is not sufficient, by itself, to permit a construction that these clauses impose by way of warranty a liability upon DBS;
the natural meaning of the clauses is supported by the fact that they provide for very specific and somewhat limited obligations. Even if read as TCS contends for, they do not generally warrant HPE’s performance as between TCS and DBS. In reality, the reading that TCS intends (which is complete responsibility on the part of DBS for any failure of HPE) would require (ignoring the absence of words specifically referring to a warranty) that Clause 15.1, 15.2 and 15.3 should start ‘Each Service Line Provider’;
furthermore, at least some of the requirements make little or no sense if the clause is read as a warranty by DBS for TCS’ benefit: for example, why would (at Clause 15.4.2) DBS warrant to TCS that Other Service Line Providers would minimise disruption to DBS’s staff and operations (as opposed, if anything, minimising disruption to TCS’ staff and operations)?
In the circumstances, I do not consider that Clauses 15.4 and 15.6 of Schedule 2-6 can be read as warranties from DBS in favour of TCS. However, even if I am wrong about this, TCS’s case on breach does not (save in the most broad and unspecific way) relate back to the specific warranties provided:
Clause 15.4 relates specifically to the provision of ‘advice and guidance’ in accordance with the Service Model in order to achieve certain ends. Notwithstanding the assertion at paragraph 33.2 of the Amended Particulars of Claim, TCS’ pleaded case does not identify what advice and guidance ought to have been provided, but was not, or was provided wrongly, and so does not identify by reference to this particular obligation the specific act or omission on the part of HPE that falls to be considered a breach of warranty on the part of TCS.
Clause 15.6 comprises (if TCS were right) a warranty to TCS that HPE would work ‘collaboratively and openly’ with TCS, and with DBS, as required to support the Service Model and to deliver the Services efficiently and effectively. However, notwithstanding the assertion at paragraph 33.3 of the Amended Particulars of Claim, TCS’s complaints are not, in substance, about the absence of ‘collaboration’. I note in this context that the word ‘collaborate’ or ‘collaboratively’ does not appear in any of TCS’s witness statements or expert reports (save in one quotation in Mr Britton’s Third Expert Report). The word ‘collaboratively’ does appear in some of DBS’ witness statements, when addressing the approach of DBS. Whilst a number of criticisms of HPE and its systems were advanced in cross-examination, it was not put to any DBS factual witness, or to Dr Hunt, that the problems TCS faced were caused by a failure of collaboration.
At paragraph 26.3 of the Amended Particulars of Claim, in contrast to its position at paragraph 26.2 (and not pleaded as an alternative), TCS plead that Clauses 15.4 and 15.6:
‘included timeously fulfilling the function of systems integrator, or alternatively appointing [TCS] or a third party to act as systems integrator, and otherwise taking such steps as were necessary to ensure that the activities reasonably expected of a systems integrator were timeously performed. Such activities included:
Defining the high-level design approach for the project;
Defining the approach to integrating components and planning when each supplier needed to deliver its components;
Identifying dependencies between organisations and planning when each supplier needed to deliver its components;
Ensuring that suppliers committed to appropriate delivery dates and turnaround times;
Providing (or procuring) an infrastructure specification so that [TCS] was able to understand what infrastructure components were available, what capabilities they offered, and how they were to be configured;
Implementing reliable and consistent processes for processing infrastructure set up and configuration requests;
Ensuring that the technical infrastructure services that [TCS] was required to use to develop, test and deploy the Solution were fit for those purposes;
Ensuring that the technical infrastructure was built and supported with reasonable skill and care and in accordance with good industry practices.’
These are then defined as ‘Systems Integration Activities’.
As a matter of simple language, it is plainly not possible to read these obligations into Clauses 15.4 and 15.6 of Schedule 2-6 of the Agreement. The first and most obvious reason is that there is no way in which the phrase ‘Each Service Line Provider will….’ can be read as imposing a primary obligation on DBS. DBS is not a Service Line provider. It is simply not what the words say. DBS is the beneficiary of these clauses, and not the party upon whom the obligations are placed. Second, in any event, the specific obligations relating to advice and guidance (Clause 15.4) and collaboration (Clause 15.6) come nowhere close to imposing the particular obligations specified by TCS in its pleading.
In the alternative to its case that DBS was obligated to provide or procure the provision of Systems Integration Activities as a consequence of the express Clauses 15.4 and 15.6 of Schedule 2-6, TCS plead at paragraph 27 of the Amended Particulars of Claim that it was an implied term essentially to the same effect, namely that ‘[DBS] would timeously either fulfil the function systems integrator, or appoint [TCS] as systems Integrator, or appoint a third-party systems integrator, or would otherwise take such steps as were necessary to ensure that the Systems Integration Activities would be timeously performed.’ TCS claims that such a clause was obvious and necessary for the business efficacy of the Agreement, because in the absence of the Systems Integration Activities being timeously performed, TCS would be unable to discharge its contractual responsibilities within the contractual timeframes and be unable to reduce the cost of providing Operational Services in accordance with the FM.
This is a sophisticated contract and, as DBS contends, there is no room for such an implied term in the Agreement, and the test of strict necessity cannot be met.
Moreover, there are a number of express terms imposing obligations upon TCS which make clear that at least some parts of the implied term as advanced would be in contradiction with those express terms, and thus not tenable. These include, perhaps most obviously:
- Heading
- CONTENTS
- IntroductiON
- The Factual Witnesses
- Expert Evidence
- Programming Experts
- Forensic Accounts
- The Parties Submissions
- Principles Applicable to Issues of Construction
- The Defendant’s Obligations and Responsibilities
- Clause 15
- Clause 9.5 which states
- Clause 14.5 of Schedule 2-6 which states
- The Delay and Notice Provisions
- Clause 7
- Conditions Precedent: Clauses 5 and 6
- Conditions Precedent: the authorities
- Clause 5.6
- Clause 6
- Clause 8
- Limitations of Liability
- A single or multiple caps?
- The Delay Damages cap under Clause 52.2.5
- Is TCS’s claim for loss of anticipated costs savings excluded by Clause 52?
- Compliance with Clause 5.3, Agreement and Estoppel Introduction
- Express Agreement
- Estoppel
- Introduction
- R1 B&B Delays
- Mr Britton’s First Analysis
- Mr Britton’s Second Analysis
- Conclusion on Mr Britton’s Analyses
- TCS’s submission based upon Mr Jardine’s analysis
- Responsibilities for Delay on the ‘Infrastructure’ Critical Path
- R1-D
- Compliance with Notice Provisions
- Analysis of Delays
- Up to August 2017
- From August 2017 to 19 September 2018
- Analysis
- Failed to confirm its desired functional scope of R1 Disclosure in relation to the Customer-to-Business portal and Accountable Officer’s Update Service functionality. Such confirmation was a prerequis
- Failed to make available an end-to-end test environment for the Interactive Voice Response system
- Failed to agree upon a data migration approach, without which the Claimant could not complete the build of a data migration environment so that anonymised data could be made available for testing
- Failed to ensure that relevant external stakeholders were available to participate in Final Systems Integration Testing
- Partial Termination
- TCS’s Claims
- Non-Manpower Costs
- Anticipated Cost Savings
- Summary of TCS’s Delay Claim Recovery
- DBS’s Claims
- Delay Payments
- R1-B&B Delay
- Disclosure Scotland Extension Costs – Item 1 of the Updated Schedule of Loss
- Loss of Anticipated Savings – Item 3 of the Updated Schedule of Loss
- R1-D Delay
- R0 Licence Costs – Item 4 of the Updated Schedule of Loss
- R0 Hosting and Infrastructure Costs - Item 5 of the Updated Schedule of Loss
- R0 Technology Refresh – Item 6 of the Updated Schedule of Loss
- R0 N-1 Sustainment Costs – Item 7 of the Updated Schedule of Loss
- R0 Maintenance Costs – Item 8 of the Updated Schedule of Loss
- Savings
- Introduction
- Quality-related Obligations
- Good Industry Practice and Defects
- Digital by Default Standards
- Section 71
- The Basics Portal
- Section 73
- The Barring Portal
- Section 75
- Section 76
- Barring Portal: Loss of productivity - Item 11 of the Updated Schedule of Loss
- LPF Portal
- Siebel Useability Issues
- Redaction
- Document naming, bundle creation and performance
- Adobe Licence (Item 20)
- Document Storage (Item 21)
- Other B1 Barring Quality Issues
- Scan on Demand
- Special Characters
- Letters
- Item 24 : Loss of Efficiency Claims arising out of R1 Barring Quality/Useability Issues
- N-1 Sustainment Costs
- Causation and Loss
- Exit/Service Transfer
- Identification of all services (3.2.2)
- Knowledge Transfer (3.2.6 and 3.2.7)
- Section 95
- Providing all documentation to a replacement contractor (3.2.1 and 3.2.10)
- The identification of all leases, maintenance agreement and support agreements in connection with the provision of the services (3.2.3)
- Providing any other information or assistance reasonably required by a replacement contractor (3.2.14)
- Causation and Loss
- The Security Incidents
- The Charges Variation Dispute Introduction
- Issue 1: How the amount of an ‘over-recovery of the Forecast Revenue’ (Clause 2.8.4) or ‘under-recovery of the Forecast Revenue’ (Clause 2.8.5) is to be measured
- Section 104
- Issue 4: How Clause 2.8.5 of Schedule 2-3 applied to Volume Based Service Charges in Service Year 5
- Issue 2: Whether the Predicted Volumes for Basics in Service Year 4 were 1,000,000 (TCS’s case) or 320,374 (DBS’s case)
- Conclusion on Volume Based Service Charge
- Conclusions