Procurement - digital technology and cyber services DPS: buyer's guide

Terms and conditions

Organisations may wish to use their own Terms and Conditions when calling off from the DPS. However, Scottish Government has provided two template sets of Terms and Conditions on the Gov.Scot website that may be used with the DPS. SGTC2 covers small value, straightforward requirements.

There is also a more complex set of terms and conditions called the Model ICT Services Contract.

The use of these terms and conditions is not mandatory but have been created to assist you if you wish to consider them. It is for the buyer to review and consider if the terms and conditions are suitable for the tender being issued (including seeking any legal advice as required).

Regardless, you should include the terms and conditions being used along with your tender documents and subsequent call-off contract.

IR35: Off-payroll working

From 6 April 2017, there were changes to the rules governing off-payroll working in the public sector. Where the rules apply, people who work in the public sector through an intermediary, typically a personal service company (PSC) will pay employment taxes in a similar way to employees. For the purpose of this reform, a public authority is as defined for the purposes of the Freedom of Information Act 2000 and the Freedom of Information (Scotland) Act 2002.

The IR35 legislation specifically challenges those people who supply their services to clients via their own company, often known as a 'personal service company' (PSC). In this case the service will be delivered via an intermediary which will be the supplier on the DPS.

Buyers must be aware of this legislation and advise DPS suppliers at call-off stage if the work being procured is in or out of scope. If you feel that IR35 may be applicable to the role you are procuring through the DPS please refer to the Employment Status Indicator (ESI) test as it should be completed in relevant cases - before you engage the suppliers. The test result can be shared with the supplier as evidence that the role is in scope.

If the role is in scope and is being delivered, via the DPS supplier, by a PSC (or equivalent) then the DPS supplier must be advised that they are liable for ensuring the relevant PAYE taxes are paid correctly. It is not the responsibility of the public sector body to pay this.