This is an interesting question; we will circulate to the public sector community of interest and ask for input.
USA Department of Homeland Security (DHS) and the Scottish Government shared their experiences with IACCM:
DHS uses wiki as their social media vehicle. It is only used for pre-award activities and not post award contract communications. Some specifics:
• The wiki page will contain the entire history of an acquisition prior to award.
• Vendors can post questions or concerns on the wiki page.
• All communications for the acquisition will use the page but the government issues written communications as a follow-up as well.
• The page is centrally controlled by the acquisition program manager.
• Feedback from the vendor community is very positive.
• It is optional for use - not mandatory; currently being piloted.
• Platform was built by GSA for GWAC vehicles.
• DHS does not use linked in, twitter or Facebook.
DHS also blogs on their own IT platform (the DHS connect page) but this is at a much higher level - more for high level strategy and organization direction for their mission; not for specific acquisitions.
Response from the Scottish Government:
We use Twitter (@scotprocurement) to put out news, as well as our regular newsfeed and my monthly e-bulletin on the Scottish Government website www.scotland.gov.uk/Topics/Government/Procurement
The e-bulletin goes to just over 8000 subscribers, and we have just over 900 followers on Twitter, being regularly retweeted by linked organisations like the Supplier Development Programme. Feedback's pretty rare - the tweets tend to be announcements conveying information rather than seeking input, although we did use social media to encourage contributions to the consultation exercise on the Procurement Reform Bill. We don't know, though, how many of the consultation responses were as a result of the tweets. Within the Scottish Government, we use Yammer as a social media forum, although we've not yet developed a procurement section on that.
Joe Auer provides a brief example - see www.dobetterdeals.com/computerworld/cw.01_03_26.html
The elements needed in the clause clearly depend on what it is you are transitioning and to where. For example, is this a matter of transferring skills (eg training needed), or processes (which may introduce IP issues) or systems and software licenses (maybe involving third parties). There are also questions of whether that transition is free of charge or may involve payment of certain fees or charges.
In outsourcing, transition may involve transfers of personnel and thereby run into regulations such as TUPE - an issue raised in a previous Forum posting - see www.iaccm.com/resources/
I would recommend you focus on building your list of items to be considered before you spend much time on seeking model clauses. There are various books that will assist with checklists, especially if this is an outsourcing arrangement (eg Scott, or Cullen and Willcocks).
When drafting and negotiating the contract with your customer, you need to check all the related clauses careflly to avoid any contradiction; and here is normally a clause called Priority to define in case of contradiction which one shall take priority.
But if contradiction is found only after contract signing, and both parites disputes on the priority of the clauses, the things will be more complicated. If the dispute has to be solved by arbitrition or court, there will be cost, and the result is subject to the applicable law. The best way out is to negotiate with your customer and try best to achieve agreement.
An Order of Precedence clause in the contract will usually describe the hierarchy of the various sections of the contract e.g. the Ts & Cs, the Technical Specification, the works Programme, any other documents incorporated by reference. Conflicting clauses in an umbrella agreement may be stated to be subordinate to a purchase order raised against it, so the PO can vary individual terms. It would be rare, and indicative of careless drafting, if two clauses within the same set of Ts & Cs were in conflict; however if this did occur the default position would usually be that the later numbered clause prevails - there would need to be overwhelming evidence that this would be manifestly absurd if the opposite were to apply.
In my understanding, the DP liability is entirely to the DC - which is logical, since the DP might not have any physical presence in the UK. I find the following guide very useful http://ico.org.uk/for_organisations/data_protection/~/media/documents/library/Data_Protection/Detailed_specialist_guides/outsourcing_guide_for_smes.ashx
It is difficult to give a precise answer without knowing the context / specific nature of the agreement being considered, but I agree with your observations. Consortium and Teaming agreements are certainly used in the UK and would be examples.
I think your colleague is mistaken as the law of England and Wales allows all of the above.
• Altran Technologies
Thank you Russell, exactly what we thought....have a good day!
I concur with Russell. I have direct experience in the UK of a co-contract involving 6 industry parties and 1 government department in a 7-way co-contract involving sharing of technology research information.
I do not know which jurisdiction you operate in and this may affect the answer Also, the relationship between affected companies will be relevant (eg is this from a parent to a subsidiary, or subsidiary to parent, or between subsidiaries?)
Either cost base may be used, but if using book value you must ensure its legality - the following article explains why http://lcnlegal.com/978/
English Law Tim
Subsidiary assets transferred to Parent then sub dormant.
What do you mean "cost base" ? Do you mean market value and book value? If either may be used, then why would anybody choose the higher market value?
if you are correct in depicting this relationship as an agency, then as principal you determine terms and conditions. An agent acts on your behalf and with your authority; you most likely retain liability for performance.
In my experience, most agencies are disclosed to the client and the terms are those of the principal. There is no 'back-to-back' in this case. Where the situation may vary is if a) the agency is undisclosed or b) the agent offers incremental goods or services for which you are not responsible and seeks to bundle these within a single contract.
Precise laws on agency vary by jurisdiction. However, a good summary for common lawjurisdictions can be found at http://en.wikipedia.org/wiki/Principal_(commercial_law)