Future Hospital contract with J3 Limited (FOI)

​Request

Please can you supply complete details of the Professional Services Contract signed by the Jersey Future Hospital Project Team and the J3 consortium, including any financial penalty should this contract be terminated?

Response

Pre-Construction Services Agreement

The contract is at Pre-Construction Services Agreement (PCSA) stage and is based on a standard New Engineering Contract 3, Option E (NEC3) with optional Z clauses.

The standard NEC3, Option E, PSC Contract is exempt under Article 23 of the Freedom of Information (Jersey) Law 2011 as it is available for you to purchase on-line at:

NEC3: Professional Services Contract 

Article 23 - Information accessible to applicant by other means

(1) Information is absolutely exempt information if it is reasonably available to the applicant, otherwise than under this Law, whether or not free of charge.

(2) A scheduled public authority that refuses an application for information on this ground must make reasonable efforts to inform the applicant where the applicant may obtain the information.

The Z Clauses

The ‘Z Clauses’ are additional conditions of the contract which amend, alter, add or delete clauses contained in Schedules 1 and 2 and they take priority over the standard form Professional Services Contract Option E.

These clauses are exempt under the Articles 33(a), 33(b), 34 and 26 of the Freedom of Information (Jersey) Law 2011.

Article 33a – Trade Secret

The Z clauses have been drafted by Shepherd & Wedderburn, LPP. They deliver expert legal advice to commercial, public sector and private clients. Not all of the clauses drafted by Shepherd and Wedderburn have been exclusively used for this contract and as such they consider that they have certain intellectual property rights. Disclosure of these clauses though the process of a Freedom of Information response would likely confer a competitive advantage to rivals and would therefore be prejudicial to their professional services business.

It is considered that the likely consequences of disclosure far outweigh the interests of the public in this case.

Article 33b – Commercial Interests

The J3 Ltd Contract is a live contract documenting the current commercial position of all the parties. The market in which J3 Ltd and its constituent companies and onward supply chain (local, national and international) operate within is highly competitive therefore the release of the commercially sensitive terms and conditions of contract would significantly disadvantage all parties’ ability to compete in any future tender process whether in Jersey or overseas should the contract be made public.

Article 34 - The Economy

The release of the sensitive commercial terms and conditions of the contract, at this point, will significantly disadvantage the States of Jersey’s ability to retain commercial advantage in any future tender process leading to the inability to secure best value for the tax payer and this will likely prejudice the States of Jersey finances as its bargaining power decreases.

It is considered that the likely prejudices to J3 Ltd and to the Jersey Economy outweigh the argument in favour of release of the contract in the public interest.

Article 26 - Information Provided in Confidence

The States of Jersey tender information stated that the information received would be kept confidential. Should the States of Jersey release the commercial terms and conditions of contract in this instance, it would likely have a negative impact on the reputation of the States of Jersey.

It considered that the likely negative impact to Jersey’s reputation outweighs the argument in favour of release of the contract in the public interest.

Termination Clauses

The termination provisions are a combination of the NEC3 clauses and the commercially sensitive Z clauses and therefore, for the same reasons given above this information is exempt under Articles 23 and 33 of the Freedom of Information (Jersey) Law 2011.