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SUBCONTRACTING and the Subcontract Template
&CONTRACTING with EPA Organisations
and the EPA Contract Template
Rebecca Rhodes, Senior Associate, UVAC
Agenda
Subcontracting Purpose and Mindset
Subcontracting Rules
Subcontractor Agreement Template
Subcontractor Management
EPA Contracting Purpose
EPA Rules and Principles
EPA Contract Template
Delivery Subcontractors and EPA contractors
• We use the term ‘you’ to refer to the ‘main provider’, that is, any organisation holding a contract with us through which we directly route funds from an employer’s digital account or government-employer co-investment.
• The main provider will have the overall responsibility for the training and on-programme assessment conducted by themselves, their delivery subcontractors and
• have a contractual relationship on behalf of the employer for the end-point assessment conducted by apprentice assessment organisations. Where we use the term, ‘you’ we are also referring to any organisation contracted by you to deliver the apprenticeship on your behalf.
• Subcontractors (p20-p24)
• Subcontracting or not Subcontracting - Subcontracting any aspect of the delivery of the apprenticeship :– ILR management ?
– Degree Awarding ?
– English and Maths ?
– Employer Provider ?
DELIVERY SUBCONTRACTORS
Contract for Services
Institution XYZ& Employer ABC
Documentation
Provider Agreement
Institution XYZ&
ESFA
Sub Contract for Services
Institution XYZ& Provider 123
Applies only to delivery with non levy
paying employers until March 2018
Mindset • ESFA take particular concern over subcontracted delivery provision because it
potentially adds risk to likelihood of delivery success:– Takes additional resource from the main provider to manage and monitor – Later identification of delivery issues – Underspend or over contracting – Main provider takes fees for their role, reducing the amount of funding going direct
to the costs of training - possible impact on quality and viability as a result
• ESFA recognise the value that specialist providers offer to apprenticeship quality and capacity – Some have chosen via the ‘Supporting’ route on RoATP to specialise here – capped
at £500k quantum– Some will not reach capacity to be on the RoATP - 100k quantum
• ESFA therefore want to know whether you subcontract and if so with who and for how much– You must complete a Delivery Subcontractor Declaration as required – Even if you don’t subcontract you MUST make a nil return – Late return or failure to submit = suspended payments
Mindset • You are always fully responsible for the actions of your subcontractor and for
the quality of any outcomes
– You cannot cede accountability for the employer relationship
– There must always be a single provider chosen by the employer for all apprenticeship provision
– You will also probably contract for EPA as a minimum - this is not a subcontractor
– You can only subcontract from your own budget lines
• You can only subcontract if the employer requests this and it happens at the start of the apprenticeship
• The main provider must deliver ‘some’ of the apprenticeship delivery in each employers apprentice programme which must have ‘some substance and not be just a brief input at the start or a small proportion of the total apprentice numbers’
• You must have an external audit report to ESFA specifications if your delivery subcontracts exceeds 100k in a financial year, to provide assurance about your arrangements to manage and control your deliver subcontractors. You must supply a certificate signed and authorised to the ESFA.
RoATP
Main
owns the employer relationship
Can be asubcontractor also
Must conduct all or ‘some’ of the
training
Supporting
Must not exceed £500,000 delivery
each year*
Must not deliver 100% of the
apprenticeship
Employer-Provider
Can only train their own staff (or connected
company/charity)
Must evidence actual costs of delivery as
main or subcontractor
Not on RoATP
Must not exceed £100,000 delivery
each year*
If you fail to check, ESFA will place restrictions
on your future use of subcontractors
Subcontracting Delivery – your accountabilities
All funding is routed through 1
main provider (including English
and Maths)
Subcontractor Rules • P 127. You must not agree to the use of delivery subcontractors with an employer if you
do not have knowledge, skills and experience of contracting with, and managing, delivery subcontractors
• Take advice about the impact of Public Contract Regulations 2015 - and make this available to ESFA or employers if requested
• You must tender for subcontractors e.g. open and competitive tendering
• You must have a legally binding subcontract contract with the subcontractor (see Para 140 for detail / our template )
• Your employer agreement must set out how the delivery of the apprenticeship including the subcontracted elements will work (para 133 for detail)
• You must act in an open and transparent way
– any links between you and any subcontractors must be set out in the employer agreement
• You are responsible for dispute resolution
– Employer and Subcontractor Agreements need to be ultimately enforceable through the courts
– Apprentice and employers must be told, by you, how to escalate concerns
Subcontracting Considerations - Your ChecksWho you subcontract with is evidence of your robust management processes
ESFA specify that all of the following must be carried out and results available to them:
• Seek legal advice about the Public Contracting Regulations on recruitment of contractors
• You must carry out Due Diligence checks and make process and results available
• Have ‘robust’ procedures (e.g. in your due diligence) to ensure you don’t fund an extremist organisation
• Don’t contract if you believe the organisation is not suitable - even if this loses you the contract with the employer
• You must not agree to subcontract to a second level
• You must have an external audit report to ESFA specifications if your delivery subcontracts exceeds 100k in a financial year
– To provide assurance about your arrangements to manage and control your delivery subcontractors.
– You must supply a signed and authorised certificate to the ESFA. They may wish to see the whole report
Subcontracting Considerations - Your Checks
Who you subcontract with is evidence of your robust management processes
• You MUST ensure that a ‘supporting’ RoATP registered subcontractor does not have contracts that exceed £500 k in total or 100k if not on RoATP)
• Impact of failure to comply are significant :
– your subcontracting will be restricted
– the subcontractor may be excluded permanently
• CHECK the list of Declared Subcontractors, for those on the supporting RoATP route
• Check the RoATP published list for status
• Require subcontractor to declare other contracts to you in signing your agreement
List of Declared Subcontractors
• Use the published list to check BEFORE you subcontract
Subcontractor Fees and Payments
Employer-Providers
• If you subcontract to an employer to deliver part of the apprenticeship , they must be on the employer-provider route of the RoATP
– They can only deliver to their employees/connected company employees
– Can only charge the actual costs of delivery and must provide evidence of this
Your Fees
• You must set out your fees for monitoring and managing the subcontract in the employer agreement and the subcontractor contract
– You must set out what support you provide for these fees
– And specify how you will monitor quality
– And how you will mange the subcontractor
THE SUBCONTRACT TEMPLATE
The Subcontractor Contract & EPA Contract
Subcontractor Contract
Particulars
Terms
Schedule 1
-Programmes
Schedule 2 -
Mandatory Policies
Subcontract Particulars – Options
Repeat Services Ordering Additional Subcontracted Services
Where indicated in the Subcontract Particulars, this clause 5 shall have effect.
5.1 Prior to the Expiry Date you can request that additional Subcontracted Services be delvered by theSubcontractor in accordance with this clause 5.
5.2 After discussions, you request either:
5.2.1 the provision of all or part of the Subcontracted Services set out in Schedule 1 (a Repeat ServicesRequest) with clause 5.3; or
5.2.2 the development of a new programme of training 5.4 (a New Services Request).
5.3 Repeat Subcontracted Services
5.3.1 a written Repeat Services Request saying which of the Subcontracted Services set out in Schedule 1 that it wants to be repeated and the Subcontractor prepares an updated programme of Subcontracted Services (a UPSS) within 10 days
5.3.4 A UPSS that has been executed by both parties is incorporated into Schedule 1.
5.4 New Subcontracted Services
5.4.1 You write a New Services Request to request the development of a new programme of training (an NPT) then the provider within 20 Business either declines to offer the requested Training; or submits an NPT (Schedule 1)
5.4.4 An NPT that has been agreed by both parties forms part of the Subcontracted and is added toSchedule 1.
• Definitions and Interpretation• ESFA Contingencies• Force Majeure • Liabilities and Insurance• Insurance• Safeguarding• Health and Safety• Confidentiality• Intellectual Property• Data Protection and Freedom of
Information• Equality Legislation• Contract Variation• Change Protocol• General
Schedule• Same document as is set out in Schedule 1 of the
Employer Agreement• Filled in for each apprenticeship programme and
each costs schedule tailored appropriately. • multiple programmes under the same contract
needs multiple schedules
The differences between this and the Training Provider/Employer template are:
• Employer name needs to be inserted• If the Subcontractor is delivering functional skills
training, this needs to be included in row 15• Costs schedule only includes Subcontractor Fees. • Payment schedule on invoice as agreed between
the parties
Subcontract Template
Subcontract Template Funding Rules / Terms Must specify the following (para 142)
• They must keep to the funding rules.
• They must provide you with ILR data so that your data returns accurately reflect delivery information.
• They must give ESFA and any other person nominated by ESFA access to their premises and to all documents related to their delivery of apprenticeships.
They must give you sufficient evidence to allow you to:
• assess their performance against the requirements of the QAA Quality Code
• incorporate the evidence they provide into your self–assessment report
• guide the judgements and grades within your self-assessment report
• They must always have suitably qualified staff available to provide apprenticeship training and/or on-programme assessment.
• They must co-operate with you to ensure that there is continuity of learning for apprentices if the subcontract ends for any reason.
• They must tell you if evidence of irregular financial or delivery issues arises. e.g. sanctions imposed by an awarding organisation, not meeting relevant QAA Quality Code indicators, allegations or complaints by apprentices, employers, staff members or other relevant parties.
• They must not use your funding to make bids for, or claims from, any European funding on their own behalf or on our behalf or use payments made as match funding for ESF projects.
Schedule 1
The Template - Schedule 1
The Template - Schedule 1
Subcontracting monitoring in practice
You must carryout a regular and substantial
programme of QA checks visits at short notice to
ensure high quality delivery that meets the ESFA funding
rules
You must make arrangements if
subcontract circumstances change e.g. liquidation
Check that ILR returns are made on time, funding is claimed (and
paid to subcontractors)
on time
Hold regular reviews and document
actions arising – confirm apprentice
exists
Hold file checks that paperwork
matches ILR and apprentices exist and are eligible –i.e. are meeting Funding Rules
observation of initial guidance, assessment and
delivery of training and/or on-programme
assessment
Face to face interviews with staff
and apprentices
Managing Subcontractors In Practice • Regular (monthly) reviews
– review of forecast volumes, ILR data returns, progress
– You must make sure these meetings and reviews take place
– Document actions, circulate and follow up
– Check paperwork matches ILR - conduct a sample file review• check dates, values, eligibility, incl employer provider/ connected company
• Check that ILR returns are made on time, funding is claimed (and paid to subcontractors) on time
• Termly visits to observe delivery across the portfolio of delivery:
– Quality of guidance, teaching and learning
– Embedding of safeguarding and PREVENT
• This all applies to employer providers - you are still responsible and accountable
EPA CONTRACT TEMPLATE
Overview
Rebecca Rhodes, Senior Associate, UVAC
EPA process
Professional Discussion
Assessment Organisation added to the RoEPAO
Employer selects organisation from the RoEPAO and informs provider
Provider & assessment organisation agree working arrangements & provider formally contracts with organisation
Assessment organisation delivers EPA & applies for certificate
Assessment organisation receives final payment via provider
EPAO • EPAOs must be carried out by organisations registered on the register of end-point
assessment organisations for the specific apprenticeship
• Option to add additional apprenticeships OR to contract EPA by EPA, Programme by Programme
• Different agreement because the EPAO is not a full service subcontractor
• Assessments will either be delivered by an independent third party or in such a way that no party who has been involved in delivery of the apprenticeship can make the sole decision on competence and passing the end-point assessment.
• Employers will use the Register to select an organisation to undertake end-point assessment for them.
• Employers determine which organisation they will select and the process for selection.
• The lead training provider will contract with the end-point assessment organisation, on behalf of the employer.
• End-point assessment is separate to any qualifications or other assessment that the apprentice may undertake during training.
• You retain the relationship with the employer at all times
• You must pass information about the Apprentice to enable the Certificate to be ordered
EPAO An end-point assessment organisation must:
• have current and relevant occupational experience of the standard
• have relevant assessment experience and expertise
• have expertise and capacity to design, develop and deliver the EPA methods as set out in the assessment plan
• promote itself to employers to support informed employer choice
• robustly manage conflicts of interest
• undertake eligibility checks prior to apprentice undertaking EPA
• directly deliver EPA
• notify employer of the outcome of EPA
• apply for the apprentice certificate on behalf of the apprentice
• provide Quality Assurance of their activity
• adhere to EQA requirements.
Terms Definitions and InterpretationCommencement and DurationTraining Provider ObligationsAAO ObligationsOrdering Additional End-Point Assessment ServicesRepeat End-Point Assessment ServicesFees and PaymentTerminationConsequences of TerminationForce Majeure Liabilities and InsuranceInsuranceSafeguardingHealth and SafetyConfidentialityIntellectual PropertyData Protection and Freedom of InformationEquality LegislationContract VariationChange ProtocolGeneral
Contract Particulars
THE CONTRACT TERMS
Your Obligations
• 3.1 The Training Provider shall manage the delivery of Training to Employers and the Apprentices:
• 3.1.1 using reasonable skill and care;
• 3.1.2 in compliance with the Funding Rules;
• 3.1.3 in compliance with the Law and associated codes and guidance from time to time in force.
• 3.2 The Training Provider shall carry out the actions allocated to it in the End-Point Assessment Programme and provide the AAO with sufficient information to enable End-Point Assessment to take place.
• 3.3 If the EPAO meets their obligations set out in clause 4 you the Training Provider shall use its reasonable endeavours to recover sums in respect of the Fees from the ESFA and/or the relevant Employer under the Employer Agreement (as the case may be).
Your Obligations
Fees and Payment
6.1 You shall pay the Fees to the AAO that you collect from the ESFA
or Employer
6.2 They invoice you to whatever plan you agree (or if not agreed, on a
monthly basis). Subject to clause 6.1, you pay within 30 days
6.3 The fees are exclusive of VAT. In the case of any VAT for the EPA
this is incorporated into the fees.
6.4 ‘Without prejudice to the rights of either party under this agreement,
any sums that remain unpaid after their due date shall bear interest
at the rate of four per cent (4%) above the Bank of England base
rate from time to time’.
A range of additional costs can be included in the fees
EPAO Obligations
1. Dispute Resolution
• 7.1 serve written notice on the other stating the nature of the dispute
• 7.2 After service of the Dispute Notice
• 7.2.1 within five 5 days, meet to attempt to settle the dispute
• 7.2.2 after 21 days from the date of service of the Dispute Notice, the
appropriate senior meet within the following 14 days to attempt to settle the
dispute; and
• 7.2.3 following 56 days the parties appoint an independent mediator via
CEDR - costs shared equally.
• 7.3 courts.
Disputes Termination
• 8.1 terminate with immediate effect by written notice to the other party if:
• 8.1. material breach occurs and (if such breach is remediable) failure to
remedy within 30 days after being notified in writing to do so;
• 8.1.2 repeated breaches ‘in such a manner as to reasonably justify the
opinion that its conduct is inconsistent with it having the intention or ability to
give effect to the terms of this agreement’
Consequences of Termination
• 9.1 End of obligations except:
• 9.2 Express continuation e.g. clause 4.3.2 - access to documents, apprentices
etc required to comply with Funding Rules .
• 9.3 Return of equipment, documents, information or materials used in connection
with the EPA and
• 9.4 each party shall cooperate in good faith to ensure continuity of assessment
such that no Apprentice is materially disadvantaged by the termination of this
agreement.
Checks
An end-point assessment organisation must not:
• promote its service to employers unless it is on the RoEPAO
• Change the approach to and delivery of EPA as set out in the assessment
plan
• deliver end-point assessment to non-apprentices
• delegate end-point assessment to a provider
• deliver the learning elements to the same apprentice
The Programme Template
Schedule 1
• This will need to be filled in for each apprenticeship programme and each Fees schedule tailored appropriately.
• Where multiple programmes of End-Point Assessment Services are being provided under the same contract, multiple End-Point Assessment Programmes will need to be inserted]
Schedule 2
• Mandatory Policies
The Template - Schedule 1
Questions • Please use the questions facility to add your feedback and comments
about the webinar
• Slides and webcast will be posted on the UVAC website www.uvac.ac.uk
• Any scenarios? - please email me [email protected]
SUBCONTRACTING and the Subcontract Template
&CONTRACTING with EPA Organisations
and the EPA Contract Template
Rebecca Rhodes, Senior Associate, UVAC
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