How should contracting authorities work with PFI providers?
- Working with PFI providers to get contingency plans up to date
- If a PFI provider is struggling to achieve service delivery requirements due to Covid-19, then local arrangements should be put in place to:
- maintain unitary charge payments
- revise contract requirements/standards
moderating payment and performance regimes where appropriate.
- In any event, you may wish to review and adjust your requirements to reflect the current situation. It is possible that some requirements can be relaxed, whereas others need to be tightened. For example, there may be an increased need for cleaning and maintenance in certain areas of your PFI premises or the layout of the premises and/or room uses may have temporarily changed. With staff illness and shortage likely to be an issue, you may also wish to consider if the resource can be moved from one area to another to help maintain essential services.
- When putting local bespoke arrangements into place it is vital that:
- Contract requirements or performance standards are not relaxed to the point where health and safety are put at risk.
- It is made clear that the arrangements are temporary and that matters will return to normal as soon as the Covid-19 emergency is over. Indeed the guidance note makes clear that if assets temporarily close they should be kept in such condition that they can be immediately up and running when this emergency is over. In such instances, likely a basic level of maintenance and security will therefore be required as a minimum.
Related FAQs
A number of our clients and networks raised issues in the early stages of the Scheme around the requirement for personal guarantees to access finance under the Scheme. The Scheme has now been updated so that:
- For facilities under £250,000, personal guarantees cannot be taken to support lending under the Scheme.
- For facilities above £250,000, personal guarantees may still be required by a lender but the amount which can be recovered under these guarantees is capped at a maximum of 20% of the outstanding balance of the CBILS facility after taking into account any other recoveries from business assets.
With the loss of face-to-face meetings in the current situation, video conferencing has taken centre stage. But how do you do that in a compliant way? Here are some of the main high-level data protection issues to consider when selecting and implementing a new third party provider’s video conferencing system.
- Make sure you do your due diligence on the security measures offered by the provider. Clearly you can’t visit them, so look at the information offered publicly by the provider and read good quality, reliable, third party sources and ask the provider questions directly. Also ask any other organisations you know that use the provider. Document all this.
- If personal information is being sent outside of the UK/European Economic Area, make sure that transfer complies with GDPR. If it’s a US provider, is it registered in the EU-US Privacy Shield list or does it offer a model clause contract (you’re likely to need the 2010 version)? Or is the service provided from a country whose data protection laws offer equivalent protection to those in Europe? Look at the support service as well as the hosting. Document this.
- Make sure you put a compliant processor agreement in place. The provider should offer one as part of the contract terms. Check it meets GDPR requirements.
- You’re likely to need to update your privacy notice, particularly if you’re going to record calls. Provide participants with a short message and link to the privacy notice in the meeting invite and on any registration page.
- Create or update other GDPR-mandated documentation – for example, depending on your use, you may need a legitimate interests assessment and to update your record of processing.
- Finally, configure and use the system in a secure and compliant way. Look at the settings/options carefully and think through the security and compliance implications of each. That could include deciding who in the meeting can share their screen; whether or not you use passwords for participants; whether or not to record, and if you’re going to record, where to store the recording. Document your decisions and the reasons for them.
The ICO has said it understands that resources, whether they are finances or people, might be diverted away from usual compliance work during the pandemic. However the last thing you need at the moment is to create a bigger problem than the one you are trying to solve. So do the best you can, ask for help from one of our specialists if you need it, and keep the whole thing under review.
On 16 April 2020, Ian Hulme, the ICO’s Director of Assurance, posted a blog for business owners, employers and managers about how to safely roll out the latest video conferencing technology.
On 21 April 2020, the NCSC published security guidance for organisations on choosing, configuring and deploying video conferencing services.
The guidance is non-statutory and is not binding on business. However, businesses should be aware that there might be reputational consequences if they do not follow the guidance; we have already seen in the context of taking advantage of furlough funding that not being in breach of the law is no protection against negative publicity. Further to the extent a contract expressly requires parties to act reasonably, it could be expected that this guidance is one of the factors a court would consider in determining what is reasonable.
Where one or more of the parties is represented, responsibility for making the arrangements for the remote hearing will fall on either the applicant or the first represented party. If no party is legally represented, the court office will contact the parties to explain that the hearing will be held by telephone conference and will send them instructions on how this is to be achieved.
All remote hearings must be recorded. The responsibility for arranging the recording will be addressed on a case by case basis.
The Government published guidelines on 23 March 2020 concerning house sales.
Estate Agents have been required to close their offices and although staff are allowed to work from home they must not attend properties for any reason.
Therefore, if the property has not yet been put onto the market you will be unable to obtain a proper valuation at present. Also, restrictions on movement means that people must not view properties in person. Therefore you ought to delay marketing.
If you have found a buyer and the property is empty then the transaction can go ahead but you may experience delays in the transaction. For example, if your buyer needs a mortgage there will be a delay in getting a mortgage offer and even if it’s a cash purchase there are likely to be delays with Local Authority Searches.
You should discuss with your conveyancer whether to include special contract conditions. These could take into account what happens if the buyer or someone in the chain falls ill between exchange and completion and cannot move on the anticipated completion date.
If you have exchanged contracts the Government guidelines indicate that the sale of an empty property can go ahead to completion. However, if the contents of the property have not been removed you may have difficulty getting it cleared. Similarly, your buyer or someone else in the conveyancing chain may find that their removers are unable to move them. If this happens, you ought to discuss this with your conveyancer and your buyer as soon as possible to see if completion can be delayed to a later date.