Question reference: S6W-05353
- Asked by: Craig Hoy, MSP for South Scotland, Scottish Conservative and Unionist Party
- Date lodged: 24 December 2021
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Current status: Answered by Ivan McKee on 17 January 2022
Question
To ask the Scottish Government what levels of financial liability for compensation it builds into contracts for ICT services, and what its position is on whether such contracts should base the level of liability as a multiple of the total project cost rather than on an unlimited basis.
Answer
The Scottish Government does not have a blanket policy of applying unlimited liabilities in its ICT contracts and contractual liability may be unlimited, capped or excluded.
The Scottish Government Model Terms and Conditions for ICT Services Contracts (Model Terms) contain provisions relating to liability that are intended to be reasonable and proportionate and to strike the right balance in allocating risk and liability for all parties.
Liability is unlimited where it cannot be restricted as a matter of law, including for death or personal injury, or fraud. Liability is also unlimited for specific types of loss such as intellectual property, tax and TUPE where Scottish Government has potential exposure to third party claims.
All other liability may be capped or limited on the basis of a fixed sum or a percentage of the overall contract value. The Model Terms do not include mandated levels of financial liability. It is for contracting authorities to determine, based on the risk profile of the project and taking into account the nature and extent of the risks involved in the services, the value of the contract and the amount of insurance cover available to each party, the appropriate levels of financial liability which should apply.