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Section 71
Whilst DBS does not advance a case that TCS breached the Agreement by failing to adopt an ‘Agile’ methodology, the distinction between the two approaches gains some significance in the context of this case when assessing whether, in due course, DBS’s decision to remove the Basics Portal from the scope of TCS’s service and replace it themselves was caused by/reasonable in light of useability issues (so as to support its counterclaim for the costs of doing so from TCS) or whether they did so in pursuance of their broader strategic aim to comply with GDS’s broader ‘DbD’ objectives.
In light of the reliance placed on some of the failures to comply with DbD in its case on breach, it is necessary to resolve the anterior issue of whether compliance with DbD formed part of TCS’s contractual obligations.
Relevant provisions of the Agreement are as follows:
Clause 1.1.4(b) to Schedule 3 stated that
‘The Solution will deliver –
…
Effective web-based, self-service for all – HMG ‘digital by default’
By Clause 12.1, the Agreement required TCS to comply with ‘the Standards’:
‘Standards’ is a defined term:
‘means the British or international standards, AUTHORITY’s internal policies and procedures, Government codes of practice and guidance referred to in schedule 2-12 (Standards) together with any other specified policies or procedures identified in schedule 2-012 (Standards)’
By Clause 2.1 to Schedule 2-12 – Standards and Regulations (v2.0), TCS were to:
‘ensure that they deliver the Service to meet [DBS’] ICT Strategy whilst also following standards and regulations, and adhering to the following measurement techniques, or their replacements in the event of their being superseded, for the term of this Agreement:
Standards Catalogue
2.1.1.1 The parties shall agree, within 30 days of the Effective Date, a Standards Catalogue. The Standards Catalogue shall be a fully managed list of standards and policies, each of which may be, for example mandatory, default, desirable or a future target….’
Schedule 2-12 itself (or no other Section of the Agreement, other that as mentioned in Clause 1.1.4 quoted above) refers to a Design-by-Default.
- 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