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PROVISION OF AFGHAN AIR BRIDGE
CONTRACT REFERENCE: CPG01604
PROPOSED CONTRACT DOCUMENTS
The proposed Contract documents enclosed with this Invitation to Tender consist of the
following Documents:
Section 1 Form of Agreement
Section 2 Conditions of Contract
Section 3 Schedule of Prices & Rates
Section 4 Statement of Service Requirement
CPG01604 – SECTION 1 – FORM OF AGREEMENT
SECTION 1: FORM OF AGREEMENT
THIS AGREEMENT is made between the Secretary of State for Foreign & Commonwealth
Affairs (“the Authority"), King Charles Street, London, SW1A 2AH
and
Diplomatic Freight Services Ltd ("the Contractor") having his main or registered office at 83
Victoria Street, London, SW1H 0HW, United Kingdom;
Company Registration number: 3089644.
("the Parties")
IT IS AGREED THAT:
1. This Form of Agreement (Section 1) together with the attached Sections 2 to 4 inclusive are
the documents which collectively form "the Contract" (as defined in Section 2).
Section 1 – Form of Agreement
Section 2 – Conditions of Contract
Section 3 – Schedule of Prices & Rates
Section 4 – Statement of Service Requirements & KPI‟s
2. The Contract effected by the signing of this Form of Agreement constitutes the entire
agreement between the Parties relating to the subject matter of the Contract and supersedes all
prior negotiations, representations or understandings whether written or oral.
SIGNED in duplicate on behalf of the Parties:
For the Contractor: For the Authority:
By: By:
Full Name: Full name:
Title of position held on behalf of the
Contractor:
Title of position held on behalf of the
Authority:
Date: 1 May 2013 Date: 1 May 2013
CPG01604 – SECTION 2 – CONDITIONS OF CONTRACT
Page 1 of 72
CPG01604 – PROVISION OF AFGHAN AIR BRIDGE
SECTION 2: CONDITIONS OF CONTRACT
1. INTERPRETATION ......................................................................................................................... 3
2. ENTIRE AGREEMENT .................................................................................................................. 12
3. CONTRACT PERIOD .................................................................................................................... 12
4. SERVICES ..................................................................................................................................... 13
5. COMMENCEMENT OF FULL OPERATIONS .............................................................................. 13
6. NOT USED .................................................................................................................................... 13
7. LEASE PAYMENTS ...................................................................................................................... 14
8. CONDITIONS AFFECTING PROVISION OF SERVICES AND UNDERTAKINGS ..................... 16
9. CONTRACTOR'S STATUS ........................................................................................................... 17
10. OWNERSHIP ............................................................................................................................ 17
11. OPERATION OF AIRCRAFT ................................................................................................... 17
12. AIRCREW ................................................................................................................................. 21
13. MAINTENANCE ........................................................................................................................ 21
14. WARRANTIES .......................................................................................................................... 22
15. AUTHORITY'S PROPERTY ..................................................................................................... 24
16. EQUIPMENT ............................................................................................................................. 24
17. STAFF ....................................................................................................................................... 25
18. CO-ORDINATION ..................................................................................................................... 26
19. USE OF AUTHORITY'S PREMISES ........................................................................................ 26
20. RIGHT OF ACCESS TO AUTHORITY'S PREMISES .............................................................. 27
21. MANNER OF PROVIDING THE SERVICES ............................................................................ 28
22. STANDARDS ............................................................................................................................ 28
23. MONITORING OF CONTRACT PERFORMANCE .................................................................. 29
24. PROGRESS REPORTS ........................................................................................................... 29
25. RE-TENDERING AND HANDOVER ........................................................................................ 30
26. PAYMENT AND VALUE ADDED TAX .................................................................................... 35
27. PAYMENT/THIRD PARTY RIGHTS IN RELATION TO SUB-CONTRACTORS .................... 37
28. CHARGES ................................................................................................................................ 37
29. RECOVERY OF SUMS DUE TO THE AUTHORITY................................................................ 38
30. INTELLECTUAL PROPERTY RIGHTS - ASSIGNMENT AND INDEMNITY .......................... 39
31. SECURITY ................................................................................................................................ 40
32. CONFIDENTIALITY .................................................................................................................. 41
33. PUBLICITY ............................................................................................................................... 43
34. RIGHT OF AUDIT ..................................................................................................................... 43
CPG01604 – SECTION 2 – CONDITIONS OF CONTRACT
Page 2 of 72
35. DATA PROTECTION ACT AND FREEDOM OF INFORMATION ACT .................................. 44
36. LIABILITY, INDEMNITY DISCLAIMER AND INSURANCE ................................................... 49
37. CORRUPT GIFTS AND PAYMENTS OF COMMISSION ........................................................ 53
38. DISCRIMINATION .................................................................................................................... 54
39. HEALTH AND SAFETY ............................................................................................................ 56
40. DAMAGE TO PLANT, TACKLE AND TOOLS ........................................................................ 57
41. TRANSFER AND SUB-CONTRACTING ................................................................................. 57
42. SERVICE OF NOTICES AND COMMUNICATIONS................................................................ 58
43. SEVERABILITY ........................................................................................................................ 59
44. WAIVER .................................................................................................................................... 59
45. VARIATION ............................................................................................................................... 59
46. FORCE MAJEURE ................................................................................................................... 60
47. TERMINATION ON INSOLVENCY OR CHANGE OF CONTROL .......................................... 61
48. TERMINATION ON DEFAULT ................................................................................................. 62
49. TERMINATION FOR CONVENIENCE ..................................................................................... 62
50. CONSEQUENCES OF TERMINATION ................................................................................... 63
51. TRANSFER OF UNDERTAKING ............................................................................................. 64
52. DISPUTE RESOLUTION .......................................................................................................... 65
53. LAW AND JURISDICTION ....................................................................................................... 66
54. RIGHTS OF THIRD PARTIES .................................................................................................. 66
55. COMPLIANCE WITH ENVIRONMENTAL REQUIREMENTS ................................................. 66
56. CONFLICT OF INTEREST ....................................................................................................... 66
57. FLEXIBLE OPERATIONS ........................................................................................................ 68
APPENDIX A: VARIATION TO CONTRACT FORM....................................................................... 69
APPENDIX B: CONFIDENTIALITY UNDERTAKING ..................................................................... 70
APPENDIX C: KEY STAFF ............................................................................................................. 71
APPENDIX D: COMMERCIALLY SENSITIVE INFORMATION ..................................................... 72
CPG01604 – SECTION 2 – CONDITIONS OF CONTRACT
Page 3 of 72
CONDITIONS
1. INTERPRETATION
1.1. In these Conditions, unless the context otherwise requires, the following provisions shall have
the meanings given to them below:
“ACMI” shall mean Aircraft, Crew, Maintenance and Insurance;
“ADR Notice” means a notice served under Condition 52.4 requesting mediation;
“Affiliate” means in relation to a body corporate, any other entity which directly or indirectly
controls, is controlled by, or is under direct or indirect common control with, that body
corporate from time to time;
"the Aircraft” means 1 (One) Hawker Beechcraft 1900D, registration mark ZS-PRG, as more
fully described in Schedule 1, or an alternative Aircraft to be agreed between the parties,
including the Engine/s and all Parts as respectively installed on the Aircraft at Delivery and
includes the Aircraft Documents, provided that such alternative aircraft is of the same type
and capable of operating in the same manner as the Aircraft;
"the Airframe" means the airframe described in Schedule 1 (The Aircraft Specifications),
together with any and all Parts and, where the context permits, the Aircraft Documents
relating to such airframe and all of its Parts;
"Air Authority" insofar as any other country in which the Aircraft is operated is concerned,
means the civil aviation authority, department, committee or agency of such other country
which has the control or supervision of civil aviation in that country or jurisdiction over the
registration, maintenance, airworthiness or operation of, or other matters relating to the
Aircraft;
“Air Operator’s Certificate” means an air operator‟s certificate issued by the Air Authority;
“Aircraft Documents" means the full and complete sets of all original and historical records,
logs, manuals, publications, documents, technical data and other materials and documents
relating to the Aircraft, being in compliance with the Air Authorities accepted standards,
including all additions, renewals, revisions, and replacements made thereto from time to time
during the term of this Contract;
“Aircraft Proceeds” means any amounts payable under the Insurances or any proceeds of
sale or requisition of the Aircraft;
CPG01604 – SECTION 2 – CONDITIONS OF CONTRACT
Page 4 of 72
“Aircrew” means a Aircraft captain and co-pilot provided to operate the Aircraft and any other
approved pilot as may be provided from time to time in terms of and in accordance with this
Contract;
“AME” means a licensed or validated aircraft maintenance engineer;
"Approval" and "Approved" refer to the written consent of the Authority's Representative;
“Approved Maintenance Schedule” means the form or other document which is approved
by the Aircraft‟s Air Authority, and which is in conformity with the Manufacturer‟s maintenance
manual (“Approved Maintenance Manual”), encompassing all scheduled maintenance, ad-hoc
maintenance and mandatory maintenance, condition monitored maintenance and/or on-
condition maintenance of the Aircraft;
“Area of operation” shall mean Kabul Afghanistan, Kandahar Airport, Herat Airport,
Kunduz Airport, Mazar Airport, or any other airport in other areas and/or countries in which
the Aircraft shall be flown or as required by the Authority and agreed to in writing with the
Contractor;
"Authority" means the Secretary of State for Foreign & Commonwealth Affairs and includes the
Authority's Representative;
“Authority Data” means (a) the data, text, drawings, diagrams, images or sounds (together
with any database made up of any of these) which are embodied in any electronic, magnetic,
optical or tangible media, and which are: (i) supplied to the Contractor by or on behalf of the
Authority; or (ii) which the Contractor is required to generate, process, store or transmit
pursuant to this Contract; or (b) any Personal Data for which the Authority is the Data
Controller;
"Authority's Premises" means land or buildings owned or occupied by the Authority where the
Services are performed;
"Authority's Property" means any property, other than land and buildings, issued or made
available to the Staff by the Authority in connection with the Contract;
"Authority's Representative" means the individual authorised to act on behalf of the Authority
for the purposes of the Contract;
“Avionics” means the avionic equipment installed on the Aircraft as at the Commencement
Date and shall include any replacement or substitute thereof;
CPG01604 – SECTION 2 – CONDITIONS OF CONTRACT
Page 5 of 72
“Base of Operation” shall mean Kabul Airport, Afghanistan or any other facility utilised by the
Authority for the purposes of operating the Aircraft, and approved of by the Contractor;
“Basic Lease Payments” has the meaning given in Condition 7 of this Contract;
“Block Hour” shall mean such time, measured in hours and minutes, elapsing from the
moment at which the Aircraft moves under its own power until the Aircraft comes to a
complete stop before shutdown of the Engines after landing;
"Business Day" means any day other than a Friday or Saturday, a day which is a public or
legal holiday in Afghanistan;
“Commencement Date” means the date, when the Authority shall accept the provision of the
Aircraft at the Delivery Location;
“Commencement of Full Operations” means the point in time when the Contractor becomes
responsible for the provision of the Services;
“Commercially Sensitive Information” means the subset of Confidential Information listed in
Appendix D comprised of information:
(a) which is provided by the Contractor to the Authority in confidence for the period
set out in that schedule; and/or
(b) that constitutes a trade secret;
"Condition" means a condition within the Contract;
“Confidential Information” means Authority‟s Data and all information which has either been
designated as confidential by either Party in writing (acting reasonably) or that ought to be
considered as confidential (however it is conveyed or on whatever media it is stored) including
information which relates to the business, affairs, properties, assets, trading practices, Services,
developments, trade secrets, Intellectual Property Rights, know-how, Personnel, customers and
suppliers of either Party, [all personal data and sensitive personal data within the meaning of the
UK Data Protection Act 1998] and the Commercially Sensitive Information;
"Contract" means this agreement between the Authority and the Contractor consisting of
these Conditions, sections and any attached Schedules and Appendices;
“Contracting Authority” means any contracting authority as defined in Regulation 3 of the
Public Contracts Regulations 2006 (as amended from time to time) other than the Authority;
"Contractor" means the Person named as the Contractor in Section 1: Form of Agreement;
CPG01604 – SECTION 2 – CONDITIONS OF CONTRACT
Page 6 of 72
"Contractor's Representative" means the individual authorised to act on behalf of the
Contractor for the purposes of the Contract;
"Contract Period" means the period of the duration of the Contract in accordance with Condition
3 (Contract Period);
"Contract Price" means the price, exclusive of any applicable Value Added Tax, payable by the
Authority to the Contractor, as set out in Section 3 (Schedule of Prices and Rates) for the
performance of the Services and its obligations under the Contract but before taking into account
the effect of any adjustment of price in accordance with Para 3 in Section 3 (Schedule of Prices
and Rates);
“Contract Year” means, in respect of the first calendar year of operation, the period commencing
on the Commencement Date and expiring on 30 April 2014, and in respect of any subsequent
Contract Year, means a period of twelve calendar months commencing on expiry of the previous
Contract Year;
“Crown” means the government of the United Kingdom (including the Northern Ireland Executive
Committee and Northern Ireland Departments, the Scottish Executive and the National Assembly
for Wales) including, but not limited to, government ministers, government departments,
government and particular bodies and government agencies;
“Crown Body” means any department, office or agency of the Crown;
“Data Protection Legislation” means the UK Data Protection Act 1998, the EU Data
Protection Directive 95/46/EC, the Regulation of Investigatory Powers Act 2000, the
Telecommunications (Lawful Business Practice) (Interception of Communications)
Regulations 2000 (SI 2000/2699), the Electronic Communications Data Protection Directive
2002/58/EC, the Privacy and Electronic Communications (EC Directive) Regulations 2003
and all applicable laws and regulations as amended from time to time relating to processing of
personal data and privacy, including where applicable the guidance and codes of practice
issued by the Information Commissioner;
“Default” means any breach of the obligations of either Party (including but not limited to
fundamental breach or breach of a fundamental item) or any default, act, omission,
negligence or statement of either Party, its employees, contractors, agents or Sub-
CPG01604 – SECTION 2 – CONDITIONS OF CONTRACT
Page 7 of 72
Contractors in connection with or in relation to the subject matter of this Contract and in
respect of which such Party is liable to the other;
“Delivery” means delivery of the Aircraft in accordance with this Contract;
“Delivery Location" means Kabul Airport, Afghanistan, or such other location as is mutually
agreed in writing between the Authority and the Contractor;
“DfID” means the Department for International Development;
“Equality Enactments” means the Equality Act 2010;
"Equipment" means all equipment, materials, consumables and plant and other items supplied,
other than Authority's Property, to be used by the Staff in the provision of the Services;
“Engine” or “Engines” means either or any of the (name the type of engine) Aircraft Engines
installed on the Airframe at Delivery and all Parts installed in or on such Engines at Delivery;
“Encumbrance” means any agreement or arrangement having the effect of creating a
security interest or right of possession, including any mortgage, charge (whether fixed or
floating), pledge, lien, lease, right of detention, right of set-off or claim, hypothecation,
assignment, security interest, title retention or restriction whatever, however created or
arising;
“Environmental Information Regulations” means the Environmental Information
Regulations 2004 ,as the same may be amended or updated from time to time, together with
any guidance and/or codes of practice issued by the Information Commissioner or relevant
Government Department in relation to such regulations;
“FCO” means the Foreign & Commonwealth Office;
“FOD” means any foreign object damage to the Aircraft, any Engines, propellers or Parts;
“FOIA” means the Freedom of Information Act 2000 and any subordinate legislation made
under this Act from time to time together with any guidance and/or codes of practice issued by
the Information Commissioner in relation to such legislation;
“Force Majeure” means any delay or non-performance due to or arising from acts of God,
public enemy, civil or international armed conflict, terrorism, insurrection or riot, fire, flood,
explosion, earthquake, accident, epidemic, quarantine restriction, law, act of governmental
priority, customs clearance, allocation, regulation or order, affecting directly, or indirectly the
Aircraft, strike or labour dispute causing cessation, slow-down or interruption of maintenance
CPG01604 – SECTION 2 – CONDITIONS OF CONTRACT
Page 8 of 72
work or inability, after due and timely diligence to procure equipment, Parts, data and
materials from the manufacturer, other manufacturers and/or suppliers in a timely manner,
damage, destruction, or loss or any other cause whatsoever to the extent that such cause is
beyond the reasonable control of the Party claiming the occurrence of force majeure. An
instance of force majeure shall only operate to the extent to which the performance of the
obliged Party is objectively considered impossible and shall then extend for that specific
period only during which the relevant instance of force majeure actually prevails;
“Guaranteed Block Hours” has the meaning given in Condition 7 of this Contract;
“Good Industry Practice” means at any time the exercise of that degree of skill, diligence,
prudence and foresight which would reasonably and ordinarily be expected from a skilled and
experienced provider of services similar to the Services seeking in good faith to comply with
its contractual obligations and complying with all relevant laws;
“Information” has the meaning given under section 84 of the FOIA;
"Insurances" means all policies and contracts of insurance and reinsurance which are from
time to time taken out or entered into in accordance with the provisions of the Contract;
"Intellectual Property Rights" means patents, inventions, trade-marks, service marks, logos,
design rights (whether registerable or not), applications for any of the above rights, copyright,
database rights, domain names, know how, trade or business names, moral rights or other
similar rights or obligations whether registerable or not in any country including but not limited to
the United Kingdom;
“ISAF” means International Security Assistance Force (Afghanistan);
“Key Performance Indicators” means a set of quantifiable measures that the Authority and
Contractor will use to measure the performance of the Services provided by the Contractor under
the Contract;
"Key Staff" means all persons identified in Appendix C;
“Law” means any applicable law, statute, bye-law, regulation, order, regulatory policy,
guidance or industry code, rule of court or directives or requirements of any Regulatory Body,
delegated or subordinate legislation or notice of any Regulatory Body;
“Lease Payments” have the meaning contained in Condition 7;
CPG01604 – SECTION 2 – CONDITIONS OF CONTRACT
Page 9 of 72
“Losses" includes all losses, payments, damages, liabilities, claims, proceedings, actions,
penalties, fines, duties, fees, rates, charges, demands, royalties or other sanctions of a
monetary nature, fees, judgments, costs and expenses;
“Maintenance” shall mean all repairs, inspections and other activity required in accordance
with the Approved Maintenance Schedule;
"Manufacturer" means in relation to the Aircraft;
"Month" means calendar month;
“Original Estimate” means the Contractor‟s initial estimate of all variable prices under the
Contract i.e. those which are not fixed;
“Part” mean any component, furnishing, appliance, module, accessory, instrument,
navigational and communications equipment, installed in, attached to or supplied with the
Airframe or any Engine on Delivery and other components and equipment whether or not
installed in the Aircraft at any time;
"Parties" means the Authority and the Contractor as identified in Section 1: Form of Agreement;
"Person", where the context allows, includes a corporation or an unincorporated association;
"Personnel" mean persons directly employed by the Authority;
"Premises" means land or buildings where the Services are performed;
"Price" means a price entered in Section 3 (Schedule of Prices and Rates);
“Proposal” means the Contractor‟s proposal submitted to the Authority to meet the Services as
detailed in the Authority‟s tender documentation dated 31 August 2012 and the subsequent
clarification dated 7 September 2012 received via the Authority‟s e-Procurement Portal;
"Rate" means a rate entered in Section 3 (Schedule of Prices and Rates);
“Regulatory Bodies” means those government departments and regulatory, statutory and
other entities, committees and bodies which, whether under statute, rules, regulations, codes
of practice or otherwise, are entitled to regulate, investigate, or influence the matters dealt
with in the Contract or any other affairs of the Authority and "Regulatory Body" shall be
construed accordingly;
"Requests for Information" shall have the meaning set out in the FOIA or any apparent
request for information under the FOIA or the Environmental Information Regulations as
relevant;
CPG01604 – SECTION 2 – CONDITIONS OF CONTRACT
Page 10 of 72
"Services" means the services to be supplied as set out in Section 4: Statement of Service
Requirements;
“Setting up Operations” means the period of time, or periods of time where phased, as detailed
in Section 4: Statement of Service Requirements, during which the Contractor is required to
mobilise itself and its Staff in preparation for delivering the Services and for the Commencement
of Full Operations;
"Site" means the area within the Premises in which the Services are performed;
"Staff" mean all persons used by the Contractor to perform the Services including, without
limitation, the Key Staff as identified in Appendix C;
“Staff Vetting Procedure” means the Authority's procedures and departmental policies for the
vetting of Personnel, whose role will involve the handling of information of a sensitive or
confidential nature or the handling of information which is subject to any relevant security
measures, including, but not limited to, the provisions of the Official Secrets Act 1911 to 1989;
“Sub-contractor” means any third party employed by the Contractor in the provision of the
Services;
“Successor Supplier” means the Authority or a replacement contractor who takes over
responsibility for all or part of the Services following expiry, termination or partial termination of
the Contract;
“Supplemental Lease Payments” has the meaning given in Condition 7 of this Contract;
“Taxes” means any and all present and future taxes, levies, imposts or duties including but
not limited to sales, use, leasing, subleasing, personal, property, real property, value added,
withholding, turnover, documentary, interest equalisation, business, excise, income, company
and corporation profits, capital gains, gross receipts or other charges in the nature of taxes
imposed by any national or provincial taxing authority, together with any penalties, fines or
interest thereon and payable by the Contractor to a government body, in respect of or arising
from or related to, or in connection with, the lease, sub-lease, use, operation, maintenance,
presence or registration of the Aircraft in terms of the Contract;
"Term" means the part of the Contract Period which, beginning on the Commencement Date
and continuing for the periods set out in Condition 5 of the Contract, until or unless the
Contract is terminated in accordance with the terms hereof;
CPG01604 – SECTION 2 – CONDITIONS OF CONTRACT
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“Termination Transfer” means the transfer of responsibility for the provision of the Services
(or their equivalent or any part thereof) from the Contractor to the Authority and/or a
Successor Supplier on or following the termination or expiry of the Contract or any part
thereof;
“Termination Transfer Date” means the date of a Termination Transfer;
“Termination Transfer Employees” means the Staff employed immediately before the
Termination Transfer Date by the Contractor or any of its sub-contractors and who are
providing the Service(s) to be transferred on the Termination Transfer Date (and to be carried
out in the same, equivalent or broadly similar way after the Termination Transfer Date) and
whose names are included in the list of transferring staff provided by the Contractor:
Excluding any person so listed whose employment with the Contractor or any of its sub-
contractors ends prior to the Termination Transfer; and
Excluding any person so listed whose employment does not transfer pursuant to the TUPE
Regulations by virtue of Regulations 4(7) and 4(8) of the TUPE Regulations (employees
objecting to employment transferring);
“TUPE Regulations” means the Transfer of Undertakings (Protection of Employment)
Regulations 2006 (as amended);
"Variation" means a properly executed change to the Contract in compliance with Condition 45;
“Variation to Contract Form” means the form set out in Appendix A;
“Working Day” means the same as “Business Day”;
1.2. The interpretation and construction of the Contract shall be subject to the following
provisions:
(a) a reference to any statute, enactment, order, regulation or other similar instrument shall
be construed as a reference to the statute, enactment, order, regulation or instrument as
subsequently amended or re-enacted;
(b) the headings included in the Contract are for ease of reference only and shall not affect
the interpretation or construction of the Contract;
(c) references to Conditions are references to Conditions in the Conditions of the Contract
in which they appear, unless otherwise stated;
CPG01604 – SECTION 2 – CONDITIONS OF CONTRACT
Page 12 of 72
(d) where the context allows, the masculine includes the feminine and the neuter, and the
singular includes the plural and vice versa;
(e) reference to a Condition is a reference to the whole of that Condition unless stated
otherwise;
(f) reference to any person shall include natural persons and partnerships, firms and other
incorporated bodies and all other legal persons of whatever kind and however
constituted and their successors and permitted assigns or transferees; and
(g) any words following the terms including, include, in particular or any similar expression
shall be construed as illustrative and shall not limit the sense of the words, description,
definition, phrase or terms preceding those terms and the words “include”, “includes” and
“including” are to be construed as if they were immediately followed by the words
“without limitation”.
2. ENTIRE AGREEMENT
2.1. The Contract constitutes the entire agreement between the Parties relating to the subject matter
of the Contract. The Contract supersedes all prior negotiations, representations and
undertakings, whether written or oral, except that this Condition shall not exclude liability in
respect of any fraudulent misrepresentation
2.2. If there is any conflict between the Sections and the Schedules and/or any appendices or other
documents referred to in the Agreement, the following order or precedence shall apply:
Section 1 – Form of Agreement
Section 2 – Conditions of Contract
Section 4 – Statement of Service Requirements and KPI‟s
Section 5 – Security requirement and plan (if applicable)
Section 3 – Schedule of Prices & Rates
3. CONTRACT PERIOD
CPG01604 – SECTION 2 – CONDITIONS OF CONTRACT
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3.1. The Contract shall take effect on 1 May 2013 and shall expire automatically on 30 April 2015
unless it is otherwise terminated in accordance with the provisions of the Contract, or otherwise
lawfully terminated, or extended in accordance with the provision of the Contract.
3.2. The Authority may extend the Contract Period by up to a further 2 years in total by issuing a
covering Variation no later than one month before the Contract would otherwise expire.
4. SERVICES
4.1. The Contractor shall perform the Services in accordance with the provisions of the Contract.
5. COMMENCEMENT OF FULL OPERATIONS
5.1. The Parties record that the Contractor shall hereby provide the Aircraft to the Authority for the
use of the Authority, provided that such use is in accordance with the terms of the Contract,
and the Authority agrees to accept the provision of the Aircraft from the Contractor, on an
ACMI basis, for the Contract Period. The Aircraft shall be available for use by the Authority at
the Delivery Location on the Commencement Date.
5.2. The Contract shall, subject to the provisions hereof, endure thereafter for a minimum period of
1 (one) year (Initial Term) commencing from the Commencement Date.
5.3. The Parties agree that they shall have the right to extend the term of the Contract, on the
same terms and conditions, for a maximum of four further periods of six months (Renewed
Term), subject to the Authority having exercised its rights of extension by written notice to the
Contractor at least 1 (one) month prior to the Initial Expiry Date.
5.4. In the event that the Authority terminates the Contract at any time during the Initial Term or the
Renewed Term, either by written notice to the Contractor or as a result of a breach of the
Contract in accordance with Condition 48, the Authority shall pay to the Contractor
immediately upon demand:
5.5. All Block Hours, multiplied by the agreed hourly rate set out in Condition 7 Lease Payments
flown prior to the termination of the Contract but not yet paid by the Authority; and an
additional one month Basic Lease Payment.
6. NOT USED
CPG01604 – SECTION 2 – CONDITIONS OF CONTRACT
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7. LEASE PAYMENTS
Basic Lease Payments 7.1. The Lease Payments payable by the Authority to the Contractor will be for a guaranteed
minimum aircraft utilisation of 40 (Forty) Block Hours per month (Guaranteed Block Hours).
The cost per Guaranteed Block Hour shall be X per Block Hour.
7.2. The Lease Payments payable in respect of the Guaranteed Block Hours shall remain fixed
and so payable throughout the Term irrespective of whether the Guaranteed Block Hours for
each month are attained. The fixed consecutive monthly lease payments shall therefore be
equal to X per month (Basic Lease Payments).
7.3. Each and every monthly Lease Payment shall be due and payable by the Authority to the
Contractor within 30 days of the date of the invoice for the relevant Lease Payment.
7.4. In this regard, the Contractor shall on a monthly in arrears basis on the first Business Day of
each month throughout the Contract Period, or as soon as practical following the first
Business Day of each month, submit Basic Lease Payment invoices to the Authority
specifying therein the Basic Lease Payment amounts owing to the Contractor.
7.5. The Authority shall be liable to pay to the Contractor a Lease Payment for the First Month;
7.6. The guaranteed minimum aircraft utilisation of the First Month shall be X Block Hours; and
7.7. The Authority shall pay to the Contractor the cost of any additional Block Hours in excess of
the Guaranteed Block Hours for the First Month in accordance with Condition 7.8 below.
Supplemental Lease Payments
7.8. In accordance with its Proposal dated 31 August 2012, the Contractor will provide up to five
(5) additional hours, free of charge, over the monthly 40 hours Guaranteed Block Hours.
Thereafter, in addition to the Basic Lease Payments, the Authority shall pay to the Contractor
X per Block Hour, in such specific instances where Aircraft utilisation exceeds the Guaranteed
Block Hours plus five additional free hours, in any month of the Contract Period. In each such
specific instance the hereby agreed rate of X shall be multiplied by that portion of the actual
Block Hour utilisation of the Aircraft, in such month, which is in excess of the Guaranteed
Block Hours plus five additional free hours.
Monthly Standing Charge
CPG01604 – SECTION 2 – CONDITIONS OF CONTRACT
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7.9. The Authority shall pay to the Contractor the monthly standing charge of US$20,000 for each
month of the Contract Period, commencing from the Commencement Date to the termination
or expiry of the Contract, howsoever caused, and shall be paid monthly in arrears throughout
the term within 30 (Thirty) days of date of invoice from the Contractor.
7.10. The Authority recognises the continued value of a back-up aircraft to cover unforeseen and
planned maintenance and agrees that a second aircraft, of a comparable size, is co-located
on the UK/Norwegian Ramp (Apron 8E), subject to the Airfield Operating Authority‟s
endorsement.
Invoicing
7.11. All flying in excess of the minimum Guaranteed Block Hours plus five additional free hours is
to be reconciled and invoiced by the Contractor monthly in arrears. The Contractor shall
therefore monthly in arrears throughout the Contract Period, where relevant, submit
Supplemental Lease Payment invoices to the Authority specifying the total and applicable
Supplemental Lease Payment amounts owing to the Contractor according to specific
instances where the Aircraft utilisation exceeds the Guaranteed Block Hours plus five
additional free hours in any month.
7.12. Payments of all Lease amounts and all other amounts payable by the Authority hereunder
shall be made on the due date for payment therefore without demand (or, where such
amounts are payable on demand, without further demand) free of exchange and without any
commission, deduction or set-off whatsoever into an account to be nominated in writing by the
Contractor. Where such due date falls on a day other than a Business Day such payment
shall be due on the immediately preceding Business Day.
7.13. If the Authority is obliged by law to deduct taxes from the Lease payments, the Authority shall
increase any such payment to the Contractor so that the net amount received and retained by
the Contractor is the full amount, which it would have received had payment not been subject
to such taxes.
7.14. Should the Authority fail to pay any Lease Payments and/or any other amount payable under
the terms of the Contract on the due date for payment thereof then, without prejudice to any
other rights or remedies which the Contractor may have under the Contract, the outstanding
amount shall bear interest at a rate equal to the base interest rate quoted by the Bank of
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England plus 2.0%, from the due date of payment until the actual date of payment thereof
(both days inclusive).
8. CONDITIONS AFFECTING PROVISION OF SERVICES AND UNDERTAKINGS
8.1. The Contractor certifies that the Aircraft operates to its manufacturer‟s specifications but does
not guarantee the performance or suitability of the Aircraft for the specific purposes of the
Authority. In this regard the Contractor certifies that the Aircraft is capable of operating in the
carriage of up to X passengers and cargo as set out in the design recommendations of the
manufacturer, in Afghanistan in areas where the elevation of the surrounding terrain is at least
between X and Y thousand feet above mean sea level and on occasions above that height
when consistent with the operational parameters of the Aircraft prescribed by the
manufacturer.
8.2. The Contractor undertakes to:
8.3. Maintain the Aircraft available for service seven days per week throughout the Contract
Period including during the hours of darkness;
8.4. Report to the Authority or to any Authority officer nominated by the Authority any incident,
mishap or accident occurring to the Aircraft its crew or other personnel; and
8.5. Ensure that at all times the Aircraft is clean
8.6. Pay all messing and laundry charges as detailed in ISAF‟s Standing Operating Procedure 804
(Recovery of Nation Borne Costs amended 18 March 2007). The Authority will provide to the
Contractor fully maintained accommodation and office facilities (including utilities) for all
personnel working on the Contract and at no additional cost.
8.7. Employ RAF-approved tactics, techniques and procedures and ensure that relevant pre-flight
briefings on each flight are given to all passengers.
8.8. Use the ISAF issued relevant military call sign for the aircraft.
8.9. The Contractor represents and warrants that the Aircraft, or any replacement which is
mutually agreed and recorded in writing, although delivered “as is, where is”, shall be
currently serviceable, licensed, certified, maintained and insured in accordance with the
provisions of the Contract.
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9. CONTRACTOR'S STATUS
9.1. At all times during the Contract Period, the Contractor shall be an independent contractor and
nothing in this Contract shall create a contract of employment, a relationship of agency or
partnership or joint venture between the Parties and accordingly neither Party shall be authorised
to act in the name of, or on behalf of, or otherwise bind the other Party save as expressly
permitted by the terms of this Contract. Accordingly:
(a) the Contractor shall not say or do anything that might lead any other Person to believe
that the Contractor is acting as the agent of the Authority; and
(b) the Authority shall not incur any contractual liability to any other Person as a result of
anything done by the Contractor in connection with the performance of the Contract.
10. OWNERSHIP
10.1. The Authority undertakes that throughout the Contract Period it will:
10.2. Not do, or permit to be done any act or thing which might jeopardise the rights of the
Contractor and it shall take all reasonable actions necessary to prevent the rights of the
Contractor from being jeopardised and not pledge the credit of the Contractor for any
maintenance, service, repairs, overhauls of, modifications to, or changes or alterations in, the
Aircraft or otherwise;
10.3. Not do or permit to be done anything which may reasonably be expected to expose the
Aircraft or any Engine or Part of the Aircraft to penalty, forfeiture, impounding, detention,
appropriation, damage or destruction and without prejudice to the foregoing, and if any such
occurs, furnish the Contractor with written notice thereof and use its best endeavours to
procure the immediate and unconditional release of the relevant Aircraft, any Engine or Part
thereof (as the case may be); and
10.4. On all occasions when ownership of the Aircraft, or any Engine or Part may be relevant, make
it clear to third Parties that title in and to the Aircraft does not vest with the Authority.
11. OPERATION OF AIRCRAFT
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11.1. The Contractor shall remain responsible for full operational control of the Aircraft for the
duration of the Contract Period and will operate under and in accordance with the Aircraft
Operating Certificate (AOC) as approved by the Air Authority.
11.2. For the avoidance of doubt the Aircrew shall fall under the operational control of the
Contractor and the tactical control of the Authority. In this regard the Authority shall be
entitled to issue such instructions to the Aircrew as may reasonably be required for its
purposes in accordance with the terms of the Contract and the Aircrew will comply with all
ISAF operational requirements as and when issued, subject to such instructions and
operational requirements being in compliance with applicable laws and regulations, air
navigation clearances, Aircraft specifications, directives, bulletins and recommendations of
the manufacturers of the Aircraft and the Engines. Notwithstanding anything to the contrary
contained herein the Aircrew shall have the sole discretion to determine whether the Aircraft
can be safely operated in accordance with the Authority‟s instructions, having due regard to
current and immediately anticipated weather conditions or other factors which may affect the
safe operation of the Aircraft.
11.3. At all times during the Contract Period, the Contractor shall ensure that accurate, complete
and current technical records and flight folios regarding all flights and maintenance carried out
to the Aircraft are available to the Authority and shall permit authorised representatives of the
Authority to examine such Aircraft Documents records and inspect the Aircraft at any
reasonable time in accordance herewith. Such Aircraft Documents and records shall be
returned to the Contractor immediately upon the termination or expiry of the Contract,
howsoever caused.
11.4. The Authority will not permit the Aircraft to be used for any purpose for which it is not
designed or reasonably suited, and will operate it only in accordance with the Manufacturers‟
operating manuals or instructions and shall not operate it in any manner which might
invalidate any Manufacturer‟s or repairer‟s warranty.
11.5. The Authority shall be entitled to operate the Aircraft anywhere in the Area of Operation in
accordance with the terms of the Contract.
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11.6. The Authority agrees to ensure that each passenger to be carried on the Aircraft shall be
supplied with an appropriate passenger ticket and baggage check or that the passengers‟
names shall be entered on the flight manifest.
11.7. The Contractor agrees that passengers of the Authority shall be authorised to carry personal
firearms and an amount of operational ammunition. In the event that any firearms are carried
on the Aircraft then these shall be unloaded at all times.
11.8. Without derogating from the Authority's obligations under the Contract, the Authority, by its
signature hereto, undertakes to the Contractor that it shall be responsible for and shall:
11.9. Supply and keep all passenger tickets, baggage checks, air consignment notes and other
documents necessary relating to any carriage of passengers and goods undertaken pursuant
to the Contract or which may be required by the Aviation Authority as necessary documents
relating to any carriage of passengers and goods;
11.10. Promptly pay any and all over flight, en-route, navigation, landing, parking and other fees,
charges or Taxes which may be incurred in the operation of the Aircraft with effect from the
Commencement Date; and
11.11. Provided that the Contractor provide to the Authority reasonable notice, allow the Contractor
reasonable access to the Aircraft such that the Contractor may fulfil its obligations under the
Contract with the Authority and not abandon either the Aircraft, an Engine or any Part thereof
(other than in accordance with the terms of the Contract) and provide or procure that secure
hangar / garage or an alternative form of protective cover, to the reasonable satisfaction of
the Contractor for the Aircraft, is made available at the Base of Operation. The Authority
recognises that the Contractor has invested and positioned an aircraft hangar (60‟x60‟) on the
designated UK/Norwegian Apron at Kabul Airport.
11.12. Captain’s Authority
11.13. The captain of the Aircraft shall have complete discretion concerning the load carried on the
Aircraft and its distribution, including the number of passengers and the amount of their
baggage, as to whether or not any flight should be undertaken, as to where landings should
be made and as to all other matters relating to the operation of the Aircraft and the Authority
shall accept all such decisions of such captain as final and binding. The Contractor shall not
be liable to the Authority for any loss, damage, costs or claims of whatever nature and
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however arising whether in contract or tort (including negligence) or otherwise as a result of
any such decision taken for reasons of safety.
11.14. The Contractor shall not be obliged to operate any flight other than in accordance with the
terms and conditions of the Contract. If whether at the Authority‟s request or at the request of
any of the passengers carried on any flight or for any cause beyond the control of either Party
there shall be any deviation from such terms in the operation of any such flight, the Authority
shall, notwithstanding the provisions of Condition 48, pay to the Contractor in addition to the
Lease Payments any costs, charges or expenses incurred by the Contractor arising out of
such deviation.
11.15. Fuel
The Contractor shall provide all fuel required to complete the obligations under the Contract,
but the cost of such fuel shall be reimbursed by the Authority at cost, such payment to be
made within 30 (Thirty) days of receipt of a valid invoice from the Contractor.
11.16. Flight Charges
The Authority shall be responsible for paying all landing fees, passenger tax, parking, over-
flight and navigation charges, customs and immigration fees, handling fees, fuel charges and
surcharges, weather fees, ATNS fees, clearance fees, IATA VSAT and GNSS fees or any
other charges not otherwise the express responsibility of the Contractor pursuant to the
Contract, which may be levied against the Aircraft for any operation of the Aircraft during the
Term of the Contract, and the Authority shall ensure that the Aircraft is not detained or
attached for non-payment of the same.
11.17. Inspections
The Authority undertakes that throughout the Contract Period, it will permit the Contractor or
its representatives at all reasonable times, upon giving reasonable notice, to inspect the
Aircraft at times agreed by the Contractor provided that such inspections do not interfere with
the Authority‟s use of the Aircraft or disrupt its scheduled operations.
11.18. War Risk Insurance
The Contractor shall provide all War Risk Insurance required pursuant to the Contract, but the
cost of this insurance shall be reimbursed by the Authority to the Contractor at cost, such
payment to be made within 30 (Thirty) days of receipt of a valid invoice from the Contractor.
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12. AIRCREW
12.1. The Contractor shall for the duration of the Contract source and make available to the
Authority, two pilots (one captain and one co-pilot) for the operation and use of the Aircraft as
contemplated in the Contract, and to ensure that operations are carried out within local or
international requirements relating to hours worked.
12.2. The Contractor shall ensure that the Aircrew have the qualifications and hold the necessary
valid certificates of competency and licenses issued or rendered valid by the licensing
authority of the country of registration and Air Authority and all applicable laws, and shall
ensure that the Aircrew are acceptable according to the terms and conditions of the required
insurances.
12.3. The Contractor in conjunction with the Authority shall ensure that each of the Aircrew shall
have the appropriate visas or other documentary requirements to provide the services
contemplated by the Contract in Afghanistan. The Contractor shall ensure that the Aircrew
operate the Aircraft in accordance with the Air Operators Certificate, an approved Flight
Operations Manual, applicable checklists and in accordance with the applicable laws and
regulations in connection with the operation of the Aircraft and the Contractor undertakes to
follow all regulations relating to limitations to Aircrew flying hours and any other Aircrew duty
restrictions.
12.4. In the event that additional Aircrew are required by the Authority to cater for the operational
requirements of the Authority, having due regard to the Aircrew‟s duty restrictions as may be
applicable, the parties agree that the Contractor shall make available such additional Aircrew,
at the sole cost and expense of the Authority, as may be necessary to ensure the continued
uninterrupted use of the Aircraft.
13. MAINTENANCE
13.1. The Contractor undertakes that throughout the duration of the Contract it will, save as where
otherwise provided, ensure that the Aircraft, Engines and all Parts are maintained, serviced,
repaired and overhauled by properly qualified personnel, licensed and approved by the Air
Authority and commensurate with Good industry Practice in the aviation industry.
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13.2. The Contractor shall be responsible for the repair of damage to the Aircraft and the Aircraft‟s
Engines where such repair of the Aircraft or Aircraft‟s Engines is necessary due to an
unscheduled or unforeseen event resulting in Engine mechanical breakdown or damage.
However to the extent that such damage to the Aircraft or the Aircraft‟s engines is caused by
or attributable to the negligence or wilful misconduct of the Authority, the Authority shall be
responsible for the costs and expenses of all such repairs of damage to the Aircraft or the
Aircraft‟s Engines.
13.3. Where the Aircraft becomes unserviceable and/or is unable to meet the tasking/requirements
of the Contract as originally stipulated by the Authority at the commencement of the Contract,
the Contractor shall at its own cost and within 14 calendar days of the Aircraft becoming
unserviceable or unable to meet such tasking/requirements, replace the Aircraft with a
suitable replacement, and shall ensure that any such replacement aircraft provided is of the
same type and capable of operating in the same manner as the Aircraft.
14. WARRANTIES
14.1. The Contractor warrants, represents and undertakes for the duration of the Contract Period
that:
(a) it has full capacity and authority and all necessary consents (including where its
procedures so require, the consent of its parent company) to enter into and perform
its obligations under the Contract and that the Contract is executed by a duly
authorised representative of the Contractor;
(b) as at the Commencement Date, all information contained in the Tender remains true,
accurate and not misleading, save as may have been specifically disclosed in writing
to the Authority prior to execution of this Contract;
(c) no claim is being asserted and no litigation, arbitration or administrative proceeding is
presently in progress or, to the best of its knowledge and belief, pending or threatened
against it or any of its assets which will or might have a material adverse effect on its
ability to perform its obligations under the Contract;
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(d) it is not subject to any contractual obligation, compliance with which is likely to have a
material adverse effect on its ability to perform its obligations under the Contract;
(e) no proceedings or other steps have been taken and not discharged (nor, to the best of
its knowledge, are threatened) for the winding up of the Contractor or for its dissolution
or for the appointment of a receiver, administrative receiver, liquidator, manager,
administrator or similar officer in relation to any of the Contractor‟s assets or revenue;
(f) it has and will continue to hold all necessary (if any) regulatory approvals from the
Regulatory Bodies necessary to perform the Contractor's obligations under this
Contract;
(g) it has and will continue to have all necessary rights in and to the Intellectual Property
Rights in all materials used by the Contractor for the purpose of providing the
Services and/or delivered to the Authority;
(h) as at the Commencement Date all statements and representations in the Contractor's
Response to the Invitation to Tender are to the best of its knowledge, information and
belief, true and accurate and that it will advise the Authority of any fact, matter or
circumstance of which it may become aware which would render any such statement
or representation to be false or misleading;
(i) the appropriate documents will contain all necessary information and explanation
required for the purpose of executing the exit plan and for suitably qualified
employees of the Authority or of the Successor Supplier to be able to use the
software and receive the Services and to perform the replacement Services on
termination or expiry; and
(j) it shall, and its Staff shall, at all times comply with the Law in carrying out their
obligations under this Contract.
(k) in the three 3 years prior to the date of this Contract:
(i). it has conducted all financial accounting and reporting activities in
compliance in all material respects with the generally accepted
accounting principles that apply to it in any country where it files
accounts;
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(ii). it has been in full compliance with all applicable securities and tax laws
and regulations in the jurisdiction in which it is established; and
(iii). it has not done or omitted to do anything which could have a material
adverse effect on its assets, financial condition or position as an
ongoing business concern or its ability to fulfill its obligations under the
Contract.
15. AUTHORITY'S PROPERTY
15.1. All of the Authority's Property shall remain the property of the Authority and shall be used in the
performance of the Contract and for no other purpose without prior Approval.
15.2. The Contractor shall be liable for any loss of or damage to any of the Authority's Property unless
the Contractor is able to demonstrate that such loss or damage was caused or contributed to by
the act, neglect or Default of the Authority.
15.3. The Contractor shall not in any circumstances have a lien on any of the Authority's Property and
shall take all steps necessary to ensure that the title of the Authority and the exclusion of any lien
are brought to the attention of any third party dealing with any of the Authority's Property.
15.4. The Contractor shall be responsible for his own costs resulting from any failure of the Authority‟s
Property, unless he can demonstrate that the Authority had caused undue delay in its
replacement or repair.
15.5. The Contractor shall maintain all items of the Authority‟s Property in good and serviceable
condition, fair wear and tear excepted, and in accordance with the manufacturer‟s
recommendations.
15.6. The Contractor shall ensure the security of all the Authority‟s Property whilst in its possession,
either on Site or elsewhere during the supply of the Services, in accordance with the
Authorities reasonable security requirements as required from time to time.
16. EQUIPMENT
16.1. The Contractor shall provide all the Equipment necessary for the provision of the Services.
16.2. The Contractor shall maintain all items of Equipment in good and serviceable condition and
ensure that the technology used is kept up-to-date and refreshed from time to time, such as to
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ensure the highest quality Services are maintained at all times throughout the course of the
Contract.
16.3. All Equipment shall be at the risk of the Contractor and the Authority shall have no liability for
any loss of or damage to any Equipment unless the Contractor is able to demonstrate that
such loss or damage was caused or contributed to by any act, neglect or Default of the
Authority.
17. STAFF
17.1. The Contractor warrants, represents and undertakes for the Contract Period that all Staff are
and will:
(a) be suitably skilled, experienced and qualified to carry out the Services and related tasks
assigned to them and possess all appropriate qualifications, licenses, permits, skill,
experience necessary for them to discharge their responsibilities safely and conforming with
all relevant laws; and
(b) be vetted in accordance with Good Industry Practice and the Staff Vetting Procedure;
17.2. The Contractor shall comply with the Staff Vetting Procedures in respect of all Contractor‟s
Staff employed or engaged in the provision of the Services. The Contractor confirms that all
Staff employed or engaged by the Contractor at the Commencement Date were vetted and
recruited on a basis that is equivalent to and no less strict than the Staff Vetting Procedures.
The Contractor must allow sufficient time for vetting to be completed.
17.3. The Contractor shall:
(a) provide training on a continuing basis for all Contractor‟s Staff employed or engaged in
the provision of the Services;
17.4. The Contractor shall provide, at all times, the number of Staff required to fulfil his obligations
under the Contract and shall promptly notify the Authority of any absence of such staff and
provide suitably qualified replacements at the request of the Authority.
17.5. Unless given prior Approval, the Contractor shall make the Staff available for the entire period
needed to fulfil their part in the provision of the Services, whilst they are employed or engaged by
the Contractor.
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17.6. Any and all Staff shall remain under the overall control of the Contractor at all times and shall not
be deemed to be employees, agents, contractors of the Authority for any purpose.
17.7. The Parties have agreed to the appointment of the Key Staff as at the Commencement Date.
The Contractor shall obtain the prior written consent of the Authority (such consent not to be
reasonably withheld or delayed) before removing or replacing any member of the Key Staff.
18. CO-ORDINATION
18.1. The Contractor shall co-ordinate his activities in the provision of the Services with all Personnel
and other contractors engaged by the Authority, as required by the Authority.
19. USE OF AUTHORITY'S PREMISES
19.1. Where the Services are performed on the Authority's Premises the Contractor shall have use of
the Authority's Premises without charge as a licensee and shall vacate those premises on
completion or earlier termination of the Contract.
19.2. The Contractor shall not use the Authority's Premises for any purpose or activity other than the
provision of the Services unless given prior Approval.
19.3. Should the Contractor require modifications to the Authority‟s Premises, such modifications shall
be subject to prior Approval and shall be carried out by the Authority at the Contractor‟s expense.
The Authority shall undertake Approved modification work without undue delay. Ownership of
such modifications shall rest with the Authority.
19.4. The Contractor shall not deliver any Equipment to the Authority‟s Premises outside normal
working hours without prior Approval.
19.5. The Contractor shall maintain all Equipment and its place of storage within the Authority‟s
Premises in a safe, serviceable and clean condition.
19.6. On the completion or earlier termination of the Contract, the Contractor shall at the Contractor‟s
cost and expense, subject to the provisions of Condition 19.4, remove all Equipment and shall
clear away from the Authority‟s Premises all waste arising from the performance of the Services
and shall leave the Authority‟s Premises in a clean and tidy condition.
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19.7. Whilst on the Authority's Premises, all Staff shall comply with such rules, regulations and other
requirements as may be in force in respect of the conduct of Persons attending and working on
the Authority's Premises.
20. RIGHT OF ACCESS TO AUTHORITY'S PREMISES
20.1. Where the Services are to be performed on the Authority's Premises, the Authority shall grant the
Contractor reasonable access to the Site.
20.2. If the Authority gives the Contractor notice that a specifically named member of Staff shall not be
admitted to the Authority's Premises, the Contractor shall ensure that that person shall not seek
admission and shall not be admitted.
20.3. The Contractor shall submit in writing to the Authority for Approval, before the Commencement of
the Contract Period and as necessary from time to time:
(a) a list showing the name and address of every person whom the Contractor wishes to be
admitted to the Premises and, where required by the Authority, every other person who is or
may be involved in any other way in the performance of the Contract, the capacity in which
each person is or may be so involved and any other particulars required by the Authority;
(b) satisfactory evidence as to the identity of each such person; and
(c) any other information about each such person, with any supporting evidence required by the
Authority, including full details of birthplace and parentage of any such person who is not a
citizen of the United Kingdom by birth, or born within the United Kingdom of parents who
were citizens of the United Kingdom by birth.
20.4. Where Staff are required to have a pass for admission to the Authority's Premises, the Authority's
Representative shall, subject to satisfactory completion of approval procedures, arrange for
passes to be issued.
20.5. Staff who cannot produce a proper pass when required to do so by any appropriate Personnel or
agent of the Authority, or who contravene any conditions on the basis of which a pass was
issued, may be refused admission to the Authority's Premises or required to leave those
Premises if already there.
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20.6. The Contractor shall promptly return any pass if at any time the Authority's Representative so
requires or if the person for whom it was issued ceases to be involved in the performance of the
Contract. The Contractor shall promptly return all passes on completion or earlier termination of
the Contract
21. MANNER OF PROVIDING THE SERVICES
21.1. The Contractor shall perform the Services with all due care, skill and diligence, and in
accordance with the Law and Good Industry Practice. Timely provision of the Services is of the
essence of the Contract.
21.2. The Services shall be performed by the Contractor only on approved Sites.
21.3. The Contractor, shall upon the instruction of the Authority‟s Representative:
(a) remove from the Authority‟s Premises any materials which are not in accordance with
Section 4: Statement of Service Requirements, and substitute proper and suitable materials;
and
(b) remove and properly execute any work which is not in accordance with the Contract,
irrespective of any previous testing or payment by the Authority. The Contractor shall at its
own expense complete the re-executed work correctly in accordance with the Contract
within such reasonable time as the Authority may specify.
21.4. The signing by the Authority's Representative of time sheets or other similar documents shall not
be construed as implying the Contractor's compliance with the Contract.
22. STANDARDS
22.1. Materials and processes used in connection with the provision of the Services shall be in
accordance with the standards set out in the Statement of Service Requirements and Good
Industry Practice.
22.2. On the request of the Authority‟s Representative, the Contractor shall provide proof to the
Authority‟s satisfaction that the materials and processes used, or proposed to be used, conform
to those standards.
22.3. The introduction of new methods or systems which impinge on the provision of the Services shall
be subject to prior Approval.
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23. MONITORING OF CONTRACT PERFORMANCE
23.1. Prior to the Commencement Date the Authority shall agree in consultation with the Contractor the
arrangements for the purpose of monitoring performance by the Contractor of its obligations
under this Contract, based on the requirements detailed in Statement of Service Requirements
and KPI‟s.
23.2. These arrangements will include without limitation:
i. random inspections;
ii. regular meetings;
iii. the regular delivery of such written management reports as:
a) The delivery of weekly hours flown totals;
b) The delivery of monthly statistics for total passengers and freight
carried;
c) The delivery of monthly statistics for tasks cancelled/delayed (by both
Authority and Contractor);
iv. monthly report on Key Performance Indicators
23.3. All such arrangements will be carried out by the Contractor in a timely manner, as reasonably
required by the Authority, and in line with Good Industry Practice.
23.4. Failure to meet the KPIs specified in Section 4: Statement of Services Requirement will entitle
the Authority to claim from the Contractor the rebates as set out in Section 4: Statement of
Services Requirement.
24. PROGRESS REPORTS
24.1. Where progress reports are required to be submitted under the Contract, the Contractor shall
render those reports at such time and in such form as may be specified or as otherwise agreed
between the Parties.
24.2. The submission and receipt of progress reports shall not prejudice the rights of either Party under
the Contract.
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25. RE-TENDERING AND HANDOVER
25.1. Within 21 days of being so requested by the Authority's Representative the Contractor shall
provide:
(a) and thereafter keep updated and accessible to the Authority, in a fully indexed and
catalogued format, all the information reasonably necessary to enable the Authority to
issue tender documents for the future provision of the Services and for a third party to
prepare an informed, non-qualified offer for those Services and not be disadvantaged in
any procurement process compared to the Contractor (if the Contractor is invited to
participate). Subject to the protection of proprietary and confidential information in
accordance with Condition 32 below, this information shall include, but not be limited to,
details of Staff as referred to in Condition 25.2, a description of the Services and the
methods used by the Contractor to provide the Services, details as to key terms of any
third party contracts and licences, copies of third party contracts and licences which are
to be transferred to the Authority or a Successor Supplier and details of ongoing and
threatened disputes in relation to the provision of the Services. This information shall be
updated on a continuing basis.
(b) a draft exit plan to be agreed with the Authority that shall set out each Parties obligations
in detail in order to ensure a smooth and efficient transfer of the Services to the Authority
for a Successor Supplier. The Parties shall review and update the exit plan annually and
as soon as reasonably practicable in the event of a material change in any aspect of the
Services which could reasonably be expected to impact upon the exit plan in order to
ensure that the exit plan remains relevant.
25.2. Where, in the opinion of the Authority's Representative, the TUPE Regulations are likely to apply
on the termination or expiration of the Contract, the information to be provided by the Contractor
under Condition 25.1 shall include, subject to governing laws and protected confidential
information, as applicable, accurate information relating to the Staff who would be transferred
under the same terms of employment under the TUPE Regulations, including in particular:-
(a) the number of Staff who would be transferred, but with no obligation on the Contractor to
specify their names;
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(b) in respect of each of those members of Staff their age, job title, sex, salary, benefits
entitlement, length of service, contractual notice period, hours of work, overtime hours
and rates, any other factors affecting redundancy entitlement and any outstanding
claims arising from their employment;
(c) the general terms and conditions of employment applicable to those members of Staff,
including probationary periods, retirement age, periods of notice, current pay
agreements, pension arrangements, working hours, entitlement to annual leave, sick
leave, maternity and special leave, terms of mobility, any loan or leasing schemes, any
relevant collective agreements, facility time arrangements and additional employment
benefits;
(d) all disciplinary, performance and grievance action taken in relation to or by each
individual member of Staff within the previous two years;
(e) information of any court or tribunal case, claim or action brought by each member of
Staff within the previous two years or that the Contractor has reasonable grounds to
believe a member of Staff may bring against the Contractor;
(f) all long term absences; and
(g) details of any arrangements or collective agreements with trade unions or organisation of
body of employees including elected
25.3. The Authority shall take all necessary precautions to ensure that the information referred to in
Condition 25.2 is given only to service providers who have qualified to tender for the future
provision of the Services. The Authority shall require that such service providers shall treat that
information in confidence; that they shall not communicate it except to such persons within their
organisation and to such extent as may be necessary for the purpose of preparing a response to
an invitation to tender issued by the Authority; and that they shall not use it for any other purpose.
25.4. The Contractor shall indemnify the Authority and a Successor Supplier against any claim made
against the Authority and/or a Successor Supplier at any time by any person in respect of any
liability incurred by the Authority and/or a Successor Supplier arising because the Contractor did
not employ reasonable effort in preparing information which the Contractor is required to provide
under Condition 25.1 and 25.2.
25.5. The Contractor shall not –
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(a) at any time during the Contract Period, move any persons in his employment into the
undertaking or relevant part of an undertaking which provides the Services, who do not
meet the standards of skill and experience, or who are in excess of the number, required for
the purposes of the Contract; or
(b) make any substantial change in the terms and conditions of employment of any Staff which
is inconsistent with the Contractor's established employment and remuneration policies
25.6. Where, in the opinion of the Authority's Representative, any change or proposed change in the
Staff in the undertaking or relevant part of an undertaking, or any change in the terms and
conditions of employment of such Staff, would be in breach of Condition 25.5, the Authority shall
have the right to make representations to the Contractor against the change or proposed
change, and –
(a) where, in the opinion of the Authority's Representative, the Contractor has acted in
breach of Condition 25.5, the Authority shall have the right to give notice to the
Contractor requiring him to remedy the breach within 30 days; and
(b) if the Contractor has not remedied the breach to the satisfaction of the Authority's
Representative by the end of the period of 30 days, the Authority shall have the right to
terminate the Contract by reason of the Default of the Contractor, in accordance with
Condition 48;
25.7. The Contractor shall allow access to the Site, in the presence of the Authority's Representative,
to any person representing any service provider whom the Authority has selected to tender for
the future provision of the Services.
25.8. For the purpose of access to the Site in accordance with Condition 25.7, where the Site is on the
Contractor's premises, the Authority shall give the Contractor 7 days' notice of a proposed visit
together with a list showing the names of all persons who will be attending those premises.
25.9. All persons who attend the Contractor's premises for the purposes of Condition 25.7 shall comply
with the Contractor's security procedures, subject to such compliance not being in conflict with
the objective of the visit.
25.10. The Contractor shall co-operate fully with the Authority during the handover arising from the
completion or earlier termination of the Contract. Subject to the protection of proprietary and
confidential information in accordance with Condition 32 below, this co-operation shall extend to
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allowing full access to, and providing copies of, all documents, reports, summaries and any other
information necessary in order to achieve an effective transition without disruption to routine
operational requirements.
25.11. Within 10 working days of being so requested by the Authority's Representative, the Contractor
shall transfer to the Authority, or any Person designated by the Authority, free of charge, all
computerised filing, recording, documentation, planning and drawing held on software and
utilised in the provision of the Services. The transfer shall be made in a fully indexed and
catalogued disk format, to operate on a proprietary software package identical to that used by the
Authority.
25.12. During the period following the earlier of:
(a) the provision of notice of termination to the Contractor; or
(b) the public announcement of a re-tendering of the Services,
the Contractor shall not without the prior written agreement of the Authority‟s Representative
vary the terms and conditions of employment or engagement of any Staff, employ or engage
any person who would become a Termination Transferring Employee, change the role or
responsibilities of any person so that he/she becomes involved in the provision of the
Services, terminate (or give notice to terminate) the employment or engagement of any of the
Staff; nor reduce or vary the involvement of any Staff in the provision of the Services.
25.13. No later than one (1) month prior to the Termination Transfer Date, the Contractor shall
compile a draft list for approval by the Authority of the Staff whom it considers will transfer to
the Authority or a Successor Supplier as a result of the TUPE Regulations. The draft list shall
be finalised by the Parties prior to the Termination Transfer Date.
25.14. At the Termination Transfer Date, the Authority and the Contractor accept that in the event
that the Services or substantially similar services are to be provided by the Authority and/or a
Successor Supplier then this may constitute a transfer to which the TUPE Regulations apply.
In the event that Authority‟s Representative determines that the TUPE Regulations apply in
relation to the Termination Transfer and/or the final list of Termination Transfer Employees,
the Termination Transfer Employees shall transfer to the Authority and/or the Successor
Supplier on the Termination Transfer Date.
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25.15. The Authority will, or shall procure that the Successor Supplier will, in good time before the
Termination Transfer Date provide to the Contractor, subject to the protection of proprietary
and confidential information in accordance with Condition 32 below, all such information as is
necessary for the Contractor or its sub-contractors and the Authority or Successor Supplier to
discharge their duties under Regulation 13 of the TUPE Regulations.
25.16. The Contractor shall indemnify the Authority and the Successor Supplier from and against any
cost (including reasonable legal costs), claim, liability, demand, expense or other legal
recourse arising out of or in connection with:
(a) any claim by any Termination Transfer Employee in respect of any fact or matter
concerning or arising from that Termination Transfer Employee‟s employment, or its
termination, before the Termination Transfer Date, including (but not limited to) any
claims of unfair dismissal, wrongful dismissal, unlawful deduction from wages, breach
of contract, discrimination on the grounds of sex, race, disability, religion or belief, age
and sexual orientation or any claim for a redundancy payment;
(b) any proceedings, claim or demand by the H M Revenue & Customs or other statutory
authority in respect of any financial obligations including, but not limited to, PAYE and
primary and secondary national insurance contributions in relation to the Termination
Transfer Employees, to the extent that the proceedings, claim or demand by the
Inland Revenue or other statutory authority relates to financial obligations arising
before the Termination Transfer Date;
(c) any claim by any Termination Transfer Employee or any appropriate representative of
any Termination Transfer Employee relating to any failure by the Contractor or any
sub-contractor to comply with the obligations of Regulation 13 of the TUPE
Regulations; and
(d) any claim by any person (not being a Termination Transfer Employee) or his
representative in respect of the termination of such person‟s employment or
engagement by the Contractor or its sub-contractor occurring before the Termination
Transfer Date;
25.17. If any contract of employment or engagement of any person, other than a Termination
Transfer Employee, is, as a result of the commencement of the provision of the Services by
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the Authority or Successor Supplier deemed or alleged to have been effected between the
Authority or Successor Supplier and such person, as a result of the TUPE Regulations, then:
(a) the Authority or Successor Supplier may, within 1 month of becoming aware of the
application of the TUPE Regulations to any such contract, terminate that contract;
and
(b) if any such contract is terminated the Contractor will indemnify the Authority and/or
Successor Supplier against:
i all salary and benefits due to that person in respect of their employment
between the Termination Transfer Date and the date of termination of
employment; and
ii all liabilities, damages, costs (including reasonable legal costs), claims,
awards and expenses arising in relation to such person out of the termination
of such person‟s employment.
The Contractor procures that its sub-contractors shall indemnify the Authority and any
Successor Supplier and their sub-contractors (as applicable) to the same extent as the
Contractor is providing indemnities under this Condition 25. To the extent that non-employee
personnel do not transfer to the Authority or a Successor Supplier and their sub-contractors
(as applicable) by virtue of the above provisions, the Contractor shall use all reasonable
endeavours to ensure that those non-employee personnel, which the Authority or a
Successor Provider (or their sub-contractors as applicable) express an intention to retain,
transfer accordingly on the Termination Transfer Date. The Contractor shall not (and shall
procure that its sub-contractors shall not) take any steps or make any undertakings to such
non-employee personnel which have the effect or aims of discouraging or preventing those
personnel from working for the Authority or a Successor Supplier.
26. PAYMENT AND VALUE ADDED TAX
26.1. In consideration of the provision of the Services in accordance with the terms of the Contract, the
Authority shall pay the Contract Price, calculated in accordance with Section 3: Schedule of
Prices and Rates.
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26.2. The Contractor shall submit an electronic invoice to the Authority as indicated in Section 3:
Schedule of Prices and Rates, in respect of the Services provided by the Contractor. Each
invoice shall contain all appropriate references, a detailed breakdown of the Services and the
appropriate Prices or Rates and shall be supported by any other documentation required by the
Authority's Representative to substantiate the invoice. All such invoices shall be denominated in
Sterling.
26.3. Unless otherwise stated in the Section 3: Schedule of Prices and Rates, payment will be
made within 30 days of receipt and agreement of a valid invoice, submitted for Services
undertaken under the Statement of Service Requirements, completed to the satisfaction of
the Authority. For the avoidance of doubt, all costs and expenses for Services performed by
the Contractor and not agreed to by the Authority will be borne by the Contractor and not
included in any invoice. The sums due under this Contract will be calculated on either a fixed
price basis or a variable basis and the provisions of Condition 26 will apply.
26.4. The Authority shall pay Value Added Tax on the Contract Price at the rate and in the manner
prescribed by law provided that the Contractor shall provide the Authority with a Value Added
Tax invoice to enable, where possible, the Authority to reclaim or obtain a refund of the Value
Added Tax from HM Revenue and Customs, and such invoice shall be provided by the
Contractor in the format and within the timescales as will enable the Authority to comply with the
law or obtain such refund.
26.5. Where agreed by the parties, the Authority may reduce payment in respect of any Services
which the Contractor has either failed to provide or has provided inadequately, without prejudice
to any other rights or remedies of the Authority.
26.6. If the Authority, acting in good faith, has a dispute in respect of any invoice, the Authority shall
be entitled to withhold payment of the disputed amount, provided that it has notified the
Contractor of the disputed amount and the nature of the dispute prior to the due date for
payment of the invoice, and has paid any undisputed portion of the invoice to the Contractor.
The parties will negotiate in good faith to resolve the dispute, and, failing resolution within five
working days after receipt by the Contractor of the Authority‟s notification, the dispute will be
referred to dispute resolution in accordance with Condition 52. In the event of such dispute, the
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Contractor shall continue to perform all its obligations under this Contract notwithstanding any
withholding or reduction in payment by the Authority.
27. PAYMENT/THIRD PARTY RIGHTS IN RELATION TO SUB-CONTRACTORS
27.1. Where the Contractor enters into a sub-contract for the provision of any part of the Services, the
Contractor shall ensure that a term is included in the sub-contract which requires the Contractor
to pay all sums due to the sub-contractor within a specified period, not exceeding 30 days from
the date of receipt of a valid invoice as defined by the terms of that sub-contract.
27.2. The sub-contract shall also include a provision enabling the Authority to have the ability to
directly enforce the benefit of the sub-contract under the Contracts (Rights of Third Parties) Act
1999, obligations in respect of security and secrecy, intellectual property and audit rights for the
benefit of the Authority corresponding to those placed on the Contractor, but with such variations
as the Authority reasonably considers necessary. The Contractor shall not include in any sub-
contract any provision the effect of which would be to limit the ability of the Sub-contractor to
contract directly with the Authority or a replacement provider of Services.
28. CHARGES
28.1. Where the Parties have agreed in the Schedule of Prices and Rates that the Services will be
provided on a fixed price basis, then the fixed price shall be paid according to the schedule of
payments as detailed in the Schedule of Prices and Rates which may relate to the
achievement of specific predefined milestones, dates or acceptance and shall be inclusive of
all Contractor costs.
28.2. Where the parties have agreed in the Schedule of Prices and Rates that the Services will be
provided on a time & materials basis, then:
(a) the Services shall be provided in accordance with the rate card set out in the Schedule of
Prices and Rates;
(b) the Parties shall agree a maximum price which shall include but not be limited to a
resource profile, a fixed date to start and to complete and a set of deliverables, further
details of which shall be agreed by the Parties in the Schedule of Prices and Rates;
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(c) the Contractor shall attach to each invoice records of the time spent and materials used
in providing the Services, together with all supporting documentation including but not
limited to all relevant timesheets, receipts (if applicable), a list of Services to which the
invoice relates and a reference to the Contract and Schedule of Prices and Rates details,
as well as any other information as reasonably requested by the Authority from time to
time; and
(d) the Contractor must notify the Authority immediately if it becomes apparent that the cost
to complete the Services will be in excess of the maximum price, and shall only proceed
with and be paid for Services in excess of the maximum price with the prior written
consent of the Authority.
28.3. In the event that the Contract Period is extended beyond the period specified in Condition 3.1
and a contract price adjustment has been agreed in Section 3: Schedule of Prices and Rates,
then the Contractor will be required to provide the Authority with justification and evidence for
any increase.
29. RECOVERY OF SUMS DUE TO THE AUTHORITY
29.1. Wherever any sum of money is payable to the Authority by the Contractor as a sum specifically
ascertained under or in respect of the Contract (including any Key Performance Indicator related
or other rebate or any sum which the Contractor is liable to pay to the Authority in respect of any
breach of this Contract), the Authority may unilaterally deduct that sum from any sum then due or
which at any later time becomes due to the Contractor under this Contract or under any other
contract with the Authority or with any other department, office or agency of the Crown.
29.2. The Authority shall give at least 21 days' notice to the Contractor of its intention to make a
deduction under Condition 29.1, giving particulars of the sum to be recovered and the contract
under which the payment arises from which the deduction is to be made.
29.3. Any overpayment by the Authority to the Contractor, whether of the Contract Price or of Value
Added Tax, shall be a sum of money recoverable from the Contractor.
29.4. The rights of the Parties in respect of set-off are fully set out in this Condition and no other right
relating to set-off shall be implied as a term of the Contract.
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30. INTELLECTUAL PROPERTY RIGHTS - ASSIGNMENT AND INDEMNITY
30.1. The Contractor hereby assigns to the Authority all Intellectual Property Rights owned by the
Contractor in any material which is generated by the Contractor and delivered to the Authority in
the performance of the Services and shall waive (or procure the waiver of) all moral rights
relating to such material. The Contractor shall not reproduce, publish, make available or supply
any such material to any Person other than the Authority without prior Approval.
30.2. In performing the Services the Contractor shall obtain Approval before utilising any material
which is or may be subject to any Intellectual Property Rights other than those referred to in
Condition 30.1.
30.3. Subject to Condition 30.4, the Contractor shall fully and effectively indemnify the Authority
against all claims, proceedings, actions, damages, legal costs (including but not limited to legal
costs and disbursements on a solicitor and client basis), expenses and any other liabilities arising
from or incurred by the use by the Contractor, in the performance of the Services, or the use by
the Authority following delivery by the Contractor, of any material which involves any infringement
or alleged infringement of the Intellectual Property Rights of any third party.
30.4. The provisions of Condition 30.3 shall not apply in respect of any material which the Authority
has supplied to the Contractor or which the Authority has specified for use by the Contractor or
for delivery to the Authority.
30.5. The Authority shall indemnify the Contractor against all claims, proceedings, actions, damages,
legal costs (including but not limited to legal costs and disbursements on a solicitor and client
basis), expenses and any other liabilities arising from or incurred by the use by the Contractor, in
the performance of the Services, of any material supplied by the Authority which involves any
infringement or alleged infringement of the Intellectual Property Rights of any third party.
30.6. Where any claim is made by a third party in respect of any material referred to in Condition 30.3
or 30.5, the Party which is required to provide an indemnity under those provisions shall have the
right to conduct, or take over the conduct of, the defence to the claim and to any proceedings or
action brought by the third party.
30.7. The Contractor grants to the Authority a royalty-free, irrevocable and non-exclusive licence
(with a right to sub-licence) to use any Intellectual Property Rights that the Contractor owned
or developed prior to the Commencement Date and which the Authority reasonably requires
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in order exercise its rights and take the benefit of this Contract including the Services
provided, for the duration of the Contract Period.
31. SECURITY
31.1. The Contractor shall take all measures necessary to comply with the provisions of any
enactment relating to security which may be applicable to the Contractor in the performance
of the Services.
31.2. The Contractor shall take all reasonable measures, by the display of notices or other
appropriate means, to ensure that Staff have notice that all provisions referred to in Condition
31.1 will apply to them and will continue to apply to them, if so applicable, after the expiry or
earlier termination of the Contract.
31.3. Until and/or unless a change to the Contract Price is agreed by the Authority pursuant to
Condition 45.8 (Variation) the Contractor shall continue to perform the Services in accordance
with its existing obligations.
31.4. Whilst on the Authority's Premises, Staff shall comply with all security measures implemented by
the Authority in respect of Personnel and other Persons attending those Premises. The Authority
shall provide copies of its written security procedures to the Contractor on request.
31.5. The Authority shall have the right to carry out any search of Staff or of vehicles used by the
Contractor at the Authority‟s Premises.
31.6. The Contractor shall co-operate with any investigation relating to security which is carried out by
the Authority or by any person who is responsible to the Authority for security matters and when
required by the Authority's Representative -
(a) shall make any Staff identified by the Authority's Representative available to be
interviewed by the Authority's Representative, or by a person who is responsible to the
Authority for security matters, for the purposes of the investigation. Staff shall have the
right to be accompanied by the Contractor's Representative and to be advised or
represented by any other person whose attendance at the interview is acceptable to
both the Authority's Representative and the Contractor's Representative; and
(b) shall provide all documents, records or other material of any kind which may reasonably
be required by the Authority or by a person who is responsible to the Authority for
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security matters, for the purposes of the investigation, so long as the provision of that
material does not prevent the Contractor from performing the Services. The Authority
shall have the right to retain any such material for use in connection with the
investigation and, so far as possible, shall provide the Contractor with a copy of any
material retained.
32. CONFIDENTIALITY
32.1. Except to the extent set out in this Condition or where disclosure is expressly permitted
elsewhere in this Contract, each Party shall
(a) treat the other Parties Confidential Information as confidential and safeguard it
accordingly; and
(b) not disclose the other Parties Confidential Information to any other person without the
owner's prior written consent.
32.2. Condition 32.1 shall not apply to the extent that:
(a) such disclosure is a requirement of Law placed upon the Party making the disclosure,
including any requirements for disclosure under the FOIA, Code of Practice on
Access to Government Information or the Environmental Information Regulations
pursuant to Condition 35 (Data Protection Act and Freedom of Information Act);
(b) such information was in the possession of the Party making the disclosure without
obligation of confidentiality prior to its disclosure by the information owner;
(c) such information was obtained from a third party without obligation of confidentiality;
(d) such information was already in the public domain at the time of disclosure otherwise
than by a breach of this Contract; or
(e) it is independently developed without access to the other Parties Confidential
Information.
32.3. The Contractor may only disclose the Authority's Confidential Information to its Staff who are
directly involved in the provision of the Services and who need to know the information, and
shall ensure that such Staff are aware of and shall comply with these obligations as to
confidentiality.
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32.4. The Contractor shall not, and shall procure that its Staff do not, use any of the Authority's
Confidential Information received otherwise than for the purposes of this Contract.
32.5. At the written request of the Authority, the Contractor shall procure that those members of its
Staff identified in the Authority's notice sign a confidentiality undertaking prior to commencing
any work in accordance with this Contract.
32.6. Nothing in this Contract shall prevent the Authority from disclosing the Contractor's
Confidential Information:
(a) to any Crown Body or any other Contracting Authority. All Crown Bodies or
Contracting Authorities receiving such Confidential Information shall be entitled to
further disclose the Confidential Information to other Crown Bodies or other
Contracting Authorities on the basis that the information is confidential and is not to
be disclosed to a third party which is not part of any Crown Body or any Contracting
Authority;
(b) to any consultant, contractor or other person engaged by the Authority or any person
conducting an Office of Government Commerce gateway review;
(c) for the purpose of the examination and certification of the Authority's accounts; or
(d) for any examination pursuant to Section 6(1) of the National Audit Act 1983 of the
economy, efficiency and effectiveness with which the Authority has used its
resources.
32.7. The Authority shall use all reasonable endeavours to ensure that any government
department, Contracting Authority, employee, third party or Sub-contractor to whom the
Contractor's Confidential Information is disclosed pursuant to Condition 32.5 is made aware
of the Authority's obligations of confidentiality.
32.8. Nothing in this Condition 32.6 shall prevent either Party from using any techniques, ideas or
know-how gained during the performance of this Contract in the course of its normal business
to the extent that this use does not result in a disclosure of the other Parties Confidential
Information or an infringement of Intellectual Property Rights.
32.9. The provisions under this Condition 32 are without prejudice to the application of the Official
Secrets Acts 1911 to 1989 to any Confidential Information.
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32.10. The Contractor must not contravene the Official Secrets Act 1911 to 1989. The Contractor must
familiarise itself with these Acts and take all reasonable steps to ensure that its sub-contractors
and its and their employees and agents are familiar with them and that these Persons comply
with them.
32.11. In the event that the Contractor fails to comply with this Condition, the Authority reserves the right
to terminate the Contract by notice in writing with immediate effect.
33. PUBLICITY
33.1. The Contractor shall not make any public statement relating to the existence or performance of
the Contract without prior Approval, which shall not be unreasonably withheld.
34. RIGHT OF AUDIT
34.1. The Contractor shall keep secure and maintain until six years after the final payment of all sums
due under the Contract, or such other period as may be agreed between the Parties, full and
accurate records of the Services, all expenditure reimbursed by the Authority and all payments
made by the Authority.
34.2. The Contractor shall grant to the Authority, or its authorised agents, such access to those
records as they may reasonably require in order to check the Contractor's compliance with the
Contract.
34.3. For the purposes of the examination and certification of the Authority's accounts, or any
examination under section 6(1) of the National Audit Act 1983 or annual re-enactment thereof as
to the economy, efficiency and effectiveness with which the Authority has used its resources, the
Comptroller and Auditor General may examine such documents as he may reasonably require
which are owned, held or otherwise within the control of the Contractor and may require the
Contractor to provide such oral or written explanations as he may reasonably require for those
purposes. The Contractor shall give all reasonable assistance to the Comptroller and Auditor
General for those purposes.
34.4. Condition 34.3 applies only in respect of documents relating to the Contract and only for the
purpose of the auditing of the Authority. It does not constitute an agreement under section 6(3)
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(d) of the National Audit Act 1983 such as to make the Contractor the subject of auditing under
that Act.
34.5. Except where an audit is imposed on the Authority by a Regulatory Body (in which case the
Authority may carry out the audit required without prejudice to its other rights) the Authority
may conduct an audit:
(a) to review the integrity, confidentiality and security of the Authority Data;
(b) to review the Contractor's compliance with the Data Protection Act 1998, the
Freedom of Information Act 2000 in accordance with Condition 35 (Data Protection
Act and Freedom of Information Act) and any other legislation applicable to the
Services.
34.6. Subject to the Authority's obligations of confidentiality, the Contractor shall on demand
provide the Authority (and/or its agents or representatives) with all reasonable co-operation
and assistance in relation to each audit, including:
(a) all information requested by the Authority within the permitted scope of the audit;
(b) reasonable access to any Sites controlled by the Contractor and to any equipment
used (whether exclusively or non-exclusively) in the performance of the Services;
(c) reasonable and necessary access to the Contractor‟s system; and
(d) reasonable and necessary access to the Contractor‟s Staff.
35. DATA PROTECTION ACT AND FREEDOM OF INFORMATION ACT
Authority Data
35.1. The Contractor shall not delete or remove any proprietary notices contained within or relating
to the Authority Data.
35.2. The Contractor shall not store, copy, disclose, or use the Authority Data except as necessary
for the performance by the Contractor of its obligations under this Contract or as otherwise
expressly authorised in writing by the Authority.
35.3. To the extent that Authority Data is held and/or processed by the Contractor, the Contractor
shall supply that Authority Data to the Authority as requested by the Authority in the format
specified in Section 4 - Statement of Service Requirements and in accordance with Condition
25.
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35.4. The Contractor shall take responsibility for preserving the integrity of Authority Data and
preventing the corruption or loss of Authority Data.
35.5. The Contractor shall perform secure back-ups of all Authority Data and shall ensure that up-
to-date back-ups are stored off-site.
35.6. The Contractor shall ensure that any system on which the Contractor holds any Authority
Data, including back-up data, is a secure system.
35.7. If the Authority Data is corrupted, lost or sufficiently degraded as a result of the Contractor's
Default so as to be unusable, the Authority may:
(a) require the Contractor (at the Contractor's expense) to restore or procure the
restoration of Authority Data and the Contractor shall do so as soon as practicable
but not later than monthly; and/or
(b) itself restore or procure the restoration of Authority Data, and shall be repaid by the
Contractor any reasonable expenses incurred in doing so. If at any time the
Contractor suspects or has reason to believe that Authority Data has or may become
corrupted, lost or sufficiently degraded in any way for any reason, then the Contractor
shall notify the Authority immediately and inform the Authority of the remedial action
the Contractor proposes to take.
Data Protection
35.8. With respect to the parties' rights and obligations under this Contract, the parties agree that
the Authority is the Data Controller and that the Contractor is the Data Processor. “Data
Controller”, “Data Processor”, “Data Subject” and “Personal Data” shall have the meaning as
set out in the Data Protection Act 1998. “Process” shall also have the meaning given to it
under the Data Protection Legislation but, for the purposes of this Contract, it shall include
both manual and automatic processing.
35.9. The Contractor shall:
(a) process the Personal Data only in accordance with instructions from the Authority (which may
be specific instructions or instructions of a general nature as set out in this Contract or as
otherwise notified by the Authority to the Contractor during the Contract Period);
(b) process the Personal Data only to the extent, and in such manner, as is necessary for the
provision of the Services or as is required by Law or any Regulatory Body;
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(c) implement appropriate technical and organisational measures to protect the Personal Data
against unauthorised or unlawful processing and against accidental loss, destruction,
damage, alteration or disclosure. These measures shall be appropriate to the harm which
might result from any unauthorised or unlawful Processing, accidental loss, destruction or
damage to the Personal Data and having regard to the nature of the Personal Data which is
to be protected;
(d) take reasonable steps to ensure the reliability of any Staff who have access to the Personal
Data;
(e) obtain prior written consent from the Authority in order to transfer the Personal Data to any
sub-contractors or Affiliates for the provision of the Services;
(f) ensure that all Contractor‟s Staff required to access the Personal Data are informed of the
confidential nature of the Personal Data and comply with the obligations set out in this
Condition 35.9;
(g) ensure that none of Contractor‟s Staff publish, disclose or divulge any of the Personal Data to
any third party unless directed in writing to do so by the Authority;
(h) notify the Authority (within [five] Working Days) if it receives:
i. a request from a Data Subject to have access to that person's Personal Data; or
ii. a complaint or request relating to the Authority's obligations under the Data Protection
Legislation;
(i) provide the Authority with full cooperation and assistance in relation to any complaint or
request made, including by:
i. providing the Authority with full details of the complaint or request;
ii. complying with a data access request within the relevant timescales set out in the
Data Protection Legislation and in accordance with the Authority's instructions;
iii. providing the Authority with any Personal Data it holds in relation to a Data Subject
(within the timescales required by the Authority); and
iv. providing the Authority with any information requested by the Authority;
(j) permit the Authority or the Authority‟s Representative (subject to reasonable and appropriate
confidentiality undertakings), to inspect and audit, in accordance with Condition 34 (Right of
Audit), the Contractor's data Processing activities (and/or those of its agents, subsidiaries and
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Sub-contractors) and comply with all reasonable requests or directions by the Authority to
enable the Authority to verify and/or procure that the Contractor is in full compliance with its
obligations under this Contract;
(k) provide a written description of the technical and organisational methods employed by the
Contractor for processing Personal Data (within the timescales required by the Authority); and
(l) not Process Personal Data outside the European Economic Area or United States without the
prior written consent of the Authority and, where the Authority consents to a transfer, to
comply with:
i. the obligations of a Data Controller under the Eighth Data Protection Principle set out
in Schedule 1 of the Data Protection Act 1998 by providing an adequate level of
protection to any Personal Data that is transferred; and
ii. any reasonable instructions notified to it by the Authority.
35.10. The Contractor shall comply at all times with the Data Protection Legislation and shall not
perform its obligations under this Contract in such a way as to cause the Authority to breach
any of its applicable obligations under the Data Protection Legislation.
35.11. The Contractor shall process such personal data only at Sites specifically agreed in writing, in
advance, with the Authority.
35.12. If the Contractor fails to comply with any provision of this Condition 35 then the Authority may
summarily terminate the Contract by notice in writing to the Contractor provided always that
such termination shall not prejudice or affect any right of action or remedy which shall have
accrued or shall accrue thereafter to the Authority.
35.13. The decision of the Authority upon matters arising under this Condition shall be final.
35.14. The Contractor shall indemnify and keep indemnified the Authority fully against any financial
penalties arising from or in connection with any breach by the Contractor or its Staff of any of
the provisions of this Condition 35 (Data Protection Act and Freedom of Information Act), or
any misuse, loss or unauthorised use or disclosure by the Contractor or its Staff of any
Personal Data or sensitive personal data (as defined by the Data Protection Act 1998) relating
to any person, where such misuse arises in connection with the Contractor‟s provision of the
Services or the performance of its obligations under this Contract.
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Freedom of Information
35.15. The Contractor acknowledges that the Authority is subject to the requirements of the FOIA
and the Environmental Information Regulations and shall assist and cooperate with the
Authority to enable the Authority to comply with its Information disclosure obligations.
35.16. The Contractor shall and shall procure that its sub-contractors shall:
(a) transfer to the Authority all Requests for Information that it receives as soon as
practicable and in any event within [two] Working Days of receiving a Request for
Information;
(b) provide the Authority with a copy of all Information in its possession, or power in the form
that the Authority requires within [five] Working Days (or such other period as the
Authority may specify) of the Authority's request; and
(c) provide all necessary assistance as reasonably requested by the Authority to enable the
Authority to respond to the Request for Information within the time for compliance set out
in section 10 of the FOIA or regulation 5 of the Environmental Information Regulations.
35.17. The Authority shall be responsible for determining in its absolute discretion and
notwithstanding any other provision in this Contract or any other contract whether the
Commercially Sensitive Information and/or any other Information is exempt from disclosure in
accordance with the provisions of the Code of Practice on Access to Government Information,
FOIA or the Environmental Information Regulations.
35.18. In no event shall the Contractor respond directly to a Request for Information unless
expressly authorised to do so by the Authority.
35.19. The Contractor acknowledges that (notwithstanding the provisions of Condition 35) the
Authority may, acting in accordance with the Department of Constitutional Affairs‟ Code of
Practice on the Discharge of the Functions of Public Authorities under Part 1 of the Freedom
of Information Act 2000 (“the Code”), be obliged under the FOIA, or the Environmental
Information Regulations to disclose information concerning the Contractor or the Services:
(a) in certain circumstances without consulting the Contractor; or
(b) following consultation with the Contractor and having taken their views into account,
provided always that where Condition 35.19 a) applies the Authority shall, in accordance
with any recommendations of the Code, take reasonable steps, where appropriate, to
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give the Contractor advanced notice, or failing that, to draw the disclosure to the
Contractor‟s attention after any such disclosure.
35.20. The Contractor shall ensure that all Information is retained for disclosure and shall permit the
Authority to inspect such records as requested from time to time.
35.21. The Contractor acknowledges that the Commercially Sensitive Information listed in Appendix
D is of indicative value only and that the Authority may be obliged to disclose it in accordance
with Condition 35.
36. LIABILITY, INDEMNITY DISCLAIMER AND INSURANCE
36.1. Neither Party excludes or limits liability to the other Party for:
(a) death or personal injury caused by its negligence; or
(b) fraud; or
(c) fraudulent misrepresentation; or
(d) any breach of any obligations implied by Section 2 of the Supply of Goods and Services
Act 1982.
36.2. Subject to Conditions 36.3 and 36.4, the Contractor shall indemnify the Authority and keep the
Authority indemnified fully against all claims, proceedings, actions, damages, costs, reasonable
legal expenses and any other liabilities which may arise out of, or in consequence of, the
supply, or the late or purported supply, of the Services or the performance or non-performance
by the Contractor of its obligations under the Contract or the presence of the Contractor or any
Staff on the Premises, including without limitation, in respect of any death or personal injury,
loss of or damage to property, financial loss arising from any advice given or omitted to be
given by the Contractor, or any other loss which is caused directly or indirectly by any act or
omission of the Contractor or their subcontractors.
36.3. The Contractor shall not be responsible for any injury, loss, damage, cost or expense if and to
the extent that it is caused by the negligence or willful misconduct of the Authority or by breach
by the Authority of its obligations under the Contract.
36.4. Subject always to Condition 36.1, the annual aggregate liability of either Party for all Defaults
resulting in direct loss including, but not limited to, direct loss of or damage to the property of
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the other under or in connection with the Contract, and for all Defaults under this Contract shall
in no event exceed £10m (ten million pounds sterling) per Contract Year.
36.5. Subject always to Condition 36.1 and 36.6; in no event shall either Party be liable to the other
for any:
(a) loss of profits, business, revenue or goodwill; and/or
(b) indirect or consequential loss or damage
36.6. The Contractor shall not exclude liability for additional operational, administrative costs and/or
expenses or wasted expenditure resulting from the direct Default of the Contractor.
36.7. The Contractor shall effect and maintain, and shall procure that their Sub-contractors effect and
maintain, with a reputable insurance company, a policy or policies of insurance providing an
adequate level of cover in respect of all risks which may be incurred by the Contractor, arising
out of the Contractor‟s and/or their Sub-contractors performance of their obligations under the
Contract, including death or personal injury, loss of or damage to property or any other loss.
Such policies shall include cover in respect of any financial loss arising from any advice given
or omitted to be given by the Contractor. Such insurance shall be maintained for the duration of
the Contract Period and for a minimum of 6 (six) years following the expiration or earlier
termination of the Contract.
36.8. Without limitation to Condition 36.7 the Contractor shall effect and maintain and shall procure
that all agents, professional consultants and Sub-contractors effect and maintain, employer‟s
liability insurance in respect of Staff in accordance with any legal requirement from time to time
in force.
36.9. The Contractor shall give the Authority, on request, copies of all insurance policies referred to
in this Condition or a broker‟s verification of insurance to demonstrate that the appropriate
cover is in place, together with receipts or other evidence of payment of the latest premiums
due under those policies.
36.10. If, for whatever reason, the Contractor fails to give effect to and maintain the insurances
required by the provisions of the Contract the Authority may make alternative arrangements to
protect its interests and may recover the costs of such arrangements from the Contractor.
36.11. The provisions of any insurance or the amount of cover shall not relieve the Contractor of any
liabilities under the Contract. It shall be the responsibility of the Contractor to determine the
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amount of insurance cover that will be adequate to enable the Contractor to satisfy any liability
referred to in Condition 36.7 and/or 36.8.
36.12. The Contractor shall ensure that at all times during the Contract Period there are maintained in
full force and effect Insurances with respect to the Aircraft, in form and substance satisfactory
to the Authority. The Contractor shall ensure the Aircraft is insured in respect of:
(a) Hull All Risks and Hull War and Allied Perils, being such risks excluded from the Hull All
Risks Policy, for loss or damage whilst flying and on the ground with respect to the
Aircraft for at least US$3,000,000.00 (Three Million United States Dollars) being the
reasonable market value of the Aircraft, and to include deductible insurances, if
necessary, to achieve that limit.
(b) Aircraft Third Party (Bodily Injury and Property Damage), Passenger, Cargo and
General Third Party Legal Liability for a combined single limit of an amount not less
than US$50,000,000.00 (Fifty Million United States Dollars) for any one occurrence,
and in the aggregate in respect of third party liability arising under terms of an extended
Coverage Endorsement AVN52E.
36.13. On or at any time prior to the Commencement Date and upon any material change in the terms
of the abovementioned policy, a certified copy of the certificate, issued by a mutually
acceptable insurer, for the Insurances shall be given to the Authority by the Contractor.
36.14. The Contractor shall take out suitable "Additional war and allied risks" insurance, in a form and
substance satisfactory to the Authority, and in an insured amount of not less than
US$3,000,000.00 (Three Million United States Dollars). On or at any time prior to the
Commencement Date and upon any material change in the terms of the above mentioned
additional war and allied risks policy, a certified copy of the certificate, issued by an acceptable
insurer, for such Insurances shall be given by the Contractor to the Authority.
36.15. The Contractor shall ensure that the air transport services it provides with the Aircraft are
conducted in accordance with the requirements and conditions of all of the aforementioned
insurance policies and shall avoid any action that may lead to the cancellation or voidance of
such policies.
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36.16. The policies affecting the Insurances required under this Condition 36 shall name the
Contractor and THE AUTHORITY as additional insureds for their respective rights and interests
in the Aircraft.
36.17. For the avoidance of doubt the Authority shall not be liable for any uninsured losses in respect
of the Aircraft, its operation or any other liability incurred in the performance of, in connection
with or pursuant to the Contract howsoever incurred and by whichever Party, and any portion of
the insured losses that are not recoverable in terms of the policies, including but not limited to
the deductibles payable in respect of the insurances, provided that such uninsured losses are
not as a result of, arising from or attributable to the negligence or wilful misconduct of the
Authority, in which case such uninsured losses shall fall to the Authority.
36.18. If either party fails to comply with the provisions of this Condition 36 this shall be deemed to be
a breach of the Contract in accordance with the provisions of Condition 48 below.
36.19. The Contractor does not give any further warranties as to the condition of the Aircraft, its fitness
for the Authority‟s purpose or its airworthiness. Any implied warranty is also expressly excluded
other than those unable to be excluded by law. The Authority agrees at all times to indemnify
and keep indemnified the Contractor (“Indemnitee”) against:
(a) Such Losses which may at any time be incurred by that Indemnitee relating to, or
arising directly or indirectly in any manner whatsoever out of, the condition, testing,
importation to or exportation from any country, registration, possession, control,
leasing, sub-leasing, use, operation, storage, maintenance, modification, overhaul,
replacement, insurance, removal and repossession of the Aircraft in connection with
the Authority‟s operation or use of the Aircraft in terms of the Contract.
(b) All Losses which may at any time be incurred by that Indemnitee in preventing or
attempting to prevent the arrest, confiscation, seizure, taking in execution,
impounding, forfeiture or detention of the Aircraft, or in securing the release of the
Aircraft;
(c) All Losses, which may at any time be reasonably incurred by that Indemnitee
resulting from the Authority parting with possession of the Aircraft other than for
Maintenance or repair or otherwise in accordance with the Contract and all other
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Losses which the Authority has agreed to pay under the Contract and which are
claimed against or paid by the Contractor.
36.20. The Parties shall be exempt from and no Party shall be liable under any circumstances for
any indirect, special or consequential damages of any nature, or any loss of profit, loss of
ability to make use of the Aircraft or other special damages of any nature which any other
Party may suffer, as a result of, relating to, or arising directly or indirectly in any manner
whatsoever out of the terms of the Contract, or grossly negligent or wilful acts or omission of
any Party.
37. CORRUPT GIFTS AND PAYMENTS OF COMMISSION
37.1. The Contractor shall not do (and warrants that in entering the Contract it has not done) any of the
following:
a) offer, give or agree to give to any person in the employment of the Crown any gift or
consideration as an inducement or reward for doing or refraining from doing any act in
relation to the obtaining or performance of this Contract or any other contract with the
Crown, or for showing or refraining from showing favour or disfavour to any Person in
connection with the Contract; nor
b) enter into this Contract if any commission has been paid or agreed to be paid to any
person in the employment of the Crown by the Contractor or on behalf of the Contractor
or to his knowledge in connection with this Contract or any other contract with the
Crown, unless particulars of such commission and the terms of any agreement for the
payment of it have been disclosed to the Authority in writing before the Contract is made.
37.2. If the Contractor or any of his employees, servants, agents or sub-contractors, or any person
acting on his or their behalf, does any of the acts mentioned in Condition 37.1 or commits any
offence under the Prevention of Corruption Acts 1889 to 1916 and/or the Bribery Act 2010, with
or without the knowledge of the Contractor, in relation to this Contract or any other contract with
the Crown, the Authority shall be entitled:
a) to terminate the Contract with immediate effect by written notice to the Contractor and
recover from the Contractor the amount of any loss resulting from the termination;
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b) to recover from the Contractor the amount or value of any such gift, consideration or
commission; and
c) to recover from the Contractor any other loss sustained as a result of any breach of this
Condition, whether or not the Contract has been terminated.
37.3. In exercising its rights or remedies under this Condition the Authority shall:-
a) act proportionately in the light of the gravity and circumstances of the particular breach;
and
b) give all due consideration, where appropriate, to the use of remedies other than
termination of the Contract.
38. DISCRIMINATION
38.1. The Contractor shall not unlawfully discriminate either directly or indirectly on such grounds
as race, colour, ethnic or national origin, disability, sex or sexual orientation, religion or belief,
or age and without prejudice to the generality of the foregoing the Contractor shall not
unlawfully discriminate within the meaning and scope of the provisions of relevant legislation
including the Race Relations Act 1976 as amended in 2003, the Sex Discrimination Act 1975
as amended in 1986, the Sex Discrimination (Gender Re-assignment) Regulations 1999, the
Employment Equality (Religion or Belief) Regulations 2003, the Employment Equality (Sexual
Orientation) Regulations 2003, the Employment Equality (Age) Regulations 2006, the
Disability Discrimination Act 1995 as amended in 2005, Equal Pay Act 1970, Human Rights
Act 1998, the Equality Act 2006, the Fair Employment and Treatment (Northern Ireland)
Order 1998 or other relevant or equivalent legislation, or any statutory modification or re-
enactment thereof.
38.2. The Contractor shall adhere to the current relevant codes of practice or recommendations
published by the Equality and Human Rights Commission, and the codes of the three legacy
commissions, the Commission for Racial Equality, Disability Rights Commission and the
Equal Opportunities Commission and any Codes of Practice introduced by the Equality and
Human Rights Commission to replace or supplement the above Codes of Practice. The
Contractor shall take all reasonable steps to secure the observance of these provisions and
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codes of conduct by all contractors, employees or agents of the Contractor and all suppliers
and Sub-contractors employed in the execution of this Contract.
38.3. The Contractor will in providing the Services comply with the provisions of:
a) section 71(1) of the Race Relations Act 1976 as if the Contractor were a body within
the meaning of Schedule 1A to that act;
b) section 76A of the Sex Discrimination Act 1975 whether or not the body is a public
authority for the purposes of that section and the Contract;
c) section 49A of the Disability Discrimination Act 1995 whether or not the body is a
public authority for the purposes of that section and the Contract; and
d) any equivalent legislation introduced in relation to the promotion of equality on the
grounds of sexual orientation, religion or belief and age.
38.4. The Contractor will monitor the representation among Staff of disabled persons and persons
of different gender and different racial groups (which shall mean groups of persons classified
as ethnic groups in the most recent official census by the Office of National Statistics or
successor body), having regard to the Authority‟s procedures for monitoring representation
among its own employees.
38.5. Where it appears to the Contractor that the conditions for taking lawful positive action under
any of the Equality Enactments apply the Contractor will take such positive action as may be
appropriate and reasonably practicable.
38.6. The Contractor will upon request by the Authority produce a report to the Authority
demonstrating its compliance with the above Conditions.
38.7. In addition to the report referred to in Condition 38.6 above, the Contractor will provide such
additional information as the Authority may reasonably require for the purpose of assessing
the Contractor‟s compliance with the above Conditions.
38.8. Where the Contractor commits a breach of the above Conditions, which amounts to a failure
to meet the service levels required, the provisions of Condition 48 will apply.
38.9. The Contractor will notify the Authority‟s Representative immediately in writing as soon as it
becomes aware of any investigation of or proceedings brought against the Contractor under
the Equality Enactments.
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38.10. Where any investigation is undertaken by a person or body empowered to conduct such
investigation and/or proceedings are instituted in connection with any matter relating to the
Contractor‟s performance of the Contract being in contravention of the Equality Enactments,
the Contractor will, free of charge:
(a) provide any information requested in the timescale allotted;
(b) attend any meetings as required and permit Staff to attend;
(c) promptly allow access to and investigation of any documents or data deemed to be
relevant;
(d) allow itself and any Staff to appear as witnesses in any ensuing proceedings; and
(e) cooperate fully and promptly in every way required by the person or body conducting
such investigation during the course of that investigation.
38.11. Where any investigation is concluded or proceedings are brought under the Equality
Enactments which arise directly or indirectly out of any act or omission of the Contractor, its
agents or sub contractors, or Staff, and where there is a finding against the Contractor in such
investigation or proceedings, the Contractor will indemnify the Authority with respect to all
costs, charges and expenses (including legal and administrative expenses) arising out of or in
connection with any such investigation or proceedings and such other financial redress to
cover any payment the Authority may have been ordered or required to pay to a third party.
38.12. In the event that the Contractor enters into any Subcontract in connection with the Contract, it
will impose obligations on its Subcontractors in terms substantially similar to those in this
Condition 38.
39. HEALTH AND SAFETY
39.1. The Contractor shall notify the Authority of any health and safety hazards which may arise in
connection with the performance of the Services.
39.2. The Authority shall notify the Contractor of any health and safety hazards which may exist or
arise at the Authority's Premises and which may affect the Contractor in the performance of the
Services.
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39.3. The Contractor shall inform all Staff engaged in the provision of Services at the Authority's
Premises of all known health and safety hazards and shall instruct those Staff in connection with
any necessary safety measures.
39.4. Whilst on the Authority's Premises, the Contractor shall comply with any health and safety
measures implemented by the Authority in respect of Personnel and other Persons working on
those Premises.
39.5. The Contractor shall notify the Authority's Representative immediately in the event of any
incident occurring in the performance of the Services on the Authority's Premises where that
incident causes any personal injury or any damage to property which could give rise to personal
injury.
39.6. The Contractor shall take all measures necessary to comply with the requirements of the Health
and Safety at Work Act 1974 and The Construction (Design and Management) Regulations 1994
and any other Acts, orders, regulations and Codes of Practice relating to health and safety, which
may apply to Staff in the performance of the Services.
40. DAMAGE TO PLANT, TACKLE AND TOOLS
40.1. The Contractor shall be required to remove all plant, tackle and tools which it brings to the
Premises on termination or expiry of this Contract, or at any time at the request of the
Authority.
40.2. The Contractor shall ensure that all such plant, tackle and tools shall meet minimum safety
standards required by law.
41. TRANSFER AND SUB-CONTRACTING
41.1. The Contractor shall not assign, sub-contract or in any other way dispose of the Contract or any
part of it (whether by trust device or otherwise) without prior Approval.
41.2. Notwithstanding Condition 41.1, the Contractor may assign to a third party (“the Assignee”) the
right to receive payment of the Contract Price or any part thereof due to the Contractor under
the Contract. Any assignment under this Condition 41.2 shall be subject to:
a) deduction of any sums in respect of which the Authority exercises its right of recovery
under Condition 29 (Recovery of Sums Due); and
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b) all related rights of the Authority under the Contract in relation to the recovery of sums
due but unpaid;
41.3. On giving notice to the Contractor of not less than 30 days, the Authority shall be entitled to
assign any or all of its rights under the Contract to any Contracting Authority, provided that such
assignment shall not materially increase the burden of the Contractor's obligations under the
Contract.
41.4. The Contractor shall procure that its sub-contractors comply at all times with obligations no less
onerous than those of the Contractor under this Contract and shall demonstrate such compliance
to the Authority on the Authority‟s reasonable request.
41.5. The Contractor shall be responsible for the acts and omissions of his sub-contractors as though
they were his own.
41.6. The Contractor shall not use the services of self-employed individuals without prior Approval.
42. SERVICE OF NOTICES AND COMMUNICATIONS
42.1. Except as otherwise expressly provided within this Contract, no communication from one Party to
the other shall have any validity under this Contract unless made in writing by or on behalf of the
Party concerned.
42.2. Any notice or other communication which is to be given by either Party to the other shall be given
by letter, or by facsimile transmission or electronic mail. Such letters shall be addressed to the
other Party in the manner referred to in Condition 42.3. If the other Party does not acknowledge
receipt of any such letter, facsimile transmission or item of electronic mail, and, in the case of a
letter, the relevant letter is not returned as undelivered, the notice or communication shall be
deemed to have been given 3 Working Days after the day on which the letter was posted.
42.3. For the purposes of Condition 42.2, the address of each Party shall be:
(a)
(b)
(c)
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42.4. Either Party may change its address for service by notice given in accordance with this Condition
42.
43. SEVERABILITY
43.1. If any provision of this Contract is held invalid, illegal or unenforceable for any reason by any
court of competent jurisdiction, such provision shall be severed and the remainder of the
provisions of this Contract shall continue in full force and effect as if the Contract had been
executed with the invalid, illegal or unenforceable provision eliminated. In the event of a holding
of invalidity so fundamental as to prevent the accomplishment of the purpose of the Contract, the
Parties shall immediately commence negotiations in good faith to remedy the invalidity.
44. WAIVER
44.1. The failure of either Party to insist upon strict performance of any provision of the Contract, or the
failure of either Party to exercise any right or remedy to which it is entitled under the Contract,
shall not constitute a waiver and shall not diminish the obligations established by the Contract. A
waiver of any breach shall not constitute a waiver of any other or subsequent breach.
44.2. No waiver of any provision of the Contract shall be effective unless it is expressly stated to be a
waiver and communicated to the other Party in writing in accordance with Condition 42.
45. VARIATION
45.1. The Contract shall not be varied unless such variation is made in writing by means of a Variation
to Contract Form as set out at Appendix A.
45.2. In the event of an emergency, the Authority shall have the right to vary the Contract by oral
instructions given by the Authority's Representative, which shall be confirmed by the issue of a
Variation to Contract Form within 7 days.
45.3. The Authority shall have the right to vary the Services at any time, subject to the Variation being
related in nature to the Services being provided, and no such Variation shall vitiate the Contract.
The procedure under Condition 45.5, for the Contractor to submit more than one quotation to the
Authority, shall then be applied.
45.4. The Contractor may request a Variation provided that:
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(a) the Contractor shall notify the Authority's Representative in writing of any additional or
changed requirement which it considers should give rise to a Variation within seven days
of such occurrence first becoming known to the Contractor;
(b) any proposed Variation shall be fully supported by more than one quotation as detailed
in Condition 45.5.
45.5. The Contractor, within 14 days of being so requested by the Authority's Representative or where
requesting a Variation pursuant to Condition 45.4, shall submit more than one quotation (from a
variety of suitable potential suppliers) to the Authority, such quotations to contain at least the
following information:
(a) a description of the work together with the reason for the proposed Variation;
(b) the price, if any, showing where applicable the Prices and Rates used; and
(c) details of the impact, if any, on other aspects of the Contract.
45.6. The price for any Variation shall, unless otherwise agreed between the Parties, be based on the
Prices and Rates.
45.7. The Authority shall either Approve or reject any Variation proposed by the Contractor.
45.8. In the event that the Contractor disputes any decision by the Authority to reject a proposed
Variation or contends that a proposed Variation is outstanding or continues to be required, the
Contractor shall update the information contained in his quotation for the proposed Variation
every Month and shall send the updated information to the Authority.
46. FORCE MAJEURE
46.1. Any act, event, omission, happening or non-happening will only be considered Force Majeure
if it is not attributable to the wilful act, neglect or failure to take reasonable precautions of the
affected Party, its contractors, agents or employees.
46.2. For the avoidance of doubt, both parties agree that any acts, events, omissions, happenings
or non-happenings resulting from the adoption of the euro by the United Kingdom government
shall not be considered to constitute Force Majeure under this Contract.
46.3. Neither Party shall in any circumstances be liable to the other for any loss of any kind
whatsoever including but not limited to any damages or abatement of Charges whether
directly or indirectly caused to or incurred by the other Party by reason of any failure or delay
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in the performance of its obligations hereunder which is due to Force Majeure.
Notwithstanding the foregoing, each Party shall use all reasonable endeavours to continue to
perform, or resume performance of, such obligations hereunder for the duration of such Force
Majeure event.
46.4. If either of the parties shall become aware of circumstances of Force Majeure which give rise
to or which are likely to give rise to any such failure or delay on its part it shall forthwith notify
the other by the most expeditious method then available and shall inform the other of the
period which it is estimated that such failure or delay shall continue.
46.5. It is expressly agreed that any failure by the Contractor to perform or any delay by the
Contractor in performing its obligations under this Contract which results from any failure or
delay in the performance of its obligations by any person, firm or company with which the
Contractor shall have entered into any contract, supply arrangement or sub-contract or
otherwise shall be regarded as a failure or delay due to Force Majeure only in the event that
such person firm or company shall itself be prevented from or delayed in complying with its
obligations under such contract, supply arrangement or sub-contract or otherwise as a result
of circumstances of Force Majeure.
46.6. For the avoidance of doubt it is hereby expressly declared that the only events which shall
afford relief from liability for failure or delay shall be any event qualifying for Force Majeure
hereunder.
47. TERMINATION ON INSOLVENCY OR CHANGE OF CONTROL
47.1. The Authority may terminate the Contract by written notice having immediate effect if:
(a) the Contractor undergoes a change of control, within the meaning of section 416 of the
Income and Corporation Taxes Act 1988, impacting adversely and materially on the
performance of the Contract; or
(b) where the Contractor is an individual or a firm, the Contractor or any partner in the firm
becomes bankrupt or has a receiving order or administration order made against him; or
makes any compromise or arrangement with or for the benefit of his creditors; or
appears unable to pay a debt within the meaning of section 268 of the Insolvency Act
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1986; or any similar event occurs under the law of any other jurisdiction in respect of the
Contractor; or
(c) where the Contractor is a company, the Contractor passes a resolution or the Court
makes an order that the Contractor be wound up otherwise than for the purpose of
solvent reconstruction or amalgamation; or a receiver, manager or administrator is
appointed (whether out of court or otherwise) (or an application or petition is made in
respect of the appointment of any of the foregoing) on behalf of a creditor in respect of
the Contractor's business or any part of it; or the Contractor is unable to pay its debts
within the meaning of section 123 of the Insolvency Act 1986 (on the basis that the
words “proved to the satisfaction of the court” are deemed omitted from Sections
123(1)(e) and 123(2) of the 1986 Act); or any similar event occurs under the law of any
other jurisdiction in respect of the Contractor.
47.2. The Authority may only exercise its right under Condition 47.1 (a) within 6 Months after a change
of control occurs and shall not be permitted to do so where it has agreed in advance to the
particular change of control that occurs. The Contractor shall notify the Authority immediately
when any change of control occurs.
48. TERMINATION ON DEFAULT
48.1. The Authority may terminate the Contract, or terminate the provision of any part of the Services,
by written notice to the Contractor with immediate effect if the Contractor is in Default of any
obligation under the Contract and:
(a) the Contractor has not remedied the Default to the satisfaction of the Authority within 30
days after service of written notice specifying the Default and requiring it to be remedied;
or
(b) the Default is not capable of remedy; or
(c) the Default is a fundamental breach of the Contract.
49. TERMINATION FOR CONVENIENCE
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49.1. The Authority shall have the right to terminate the Contract, or to terminate the provision of any
part of the Services, at any time by giving one month‟s written notice to the Contractor. The
Authority may extend the period of notice at any time before it expires, subject to agreement on
the level of Services to be provided by the Contractor during the period of extension.
Termination under this provision shall not affect the rights of the Parties that have accrued up to
the date of termination.
49.2. The rights to terminate set out in Conditions 47, 48 and 49 are the only circumstances in which
this Contract may be terminated and the Contractor acknowledges that it shall have no right to
terminate or treat itself as discharged at law. Furthermore, in circumstances where the Authority
is entitled to terminate this Contract, it may also terminate this Contract in part.
50. CONSEQUENCES OF TERMINATION
50.1. If the Authority terminates the Contract under Condition 48, or terminates the provision of any
part of the Services under that Condition, and then makes other arrangements for the provision
of the Services, the Authority shall be entitled to recover from the Contractor the cost of making
those other arrangements and any additional expenditure incurred by the Authority throughout
the remainder of the Contract Period. Where the Contract is terminated under Condition 47, no
further payments shall be payable by the Authority until the Authority has established the final
cost of making those other arrangements.
50.2. If the Authority terminates the Contract, or terminates the provision of any part of the Services,
under Condition 49, the Authority shall reimburse the Contractor in respect of any loss, not
including loss of profit, actually and reasonably incurred by the Contractor as a result of the
termination, provided that the Contractor takes immediate and reasonable steps, consistent with
the obligation to provide the Services during the period of notice, to terminate all contracts with
sub-contractors on the best available terms, to cancel all capital and recurring cost commitments,
and to reduce Equipment and labour costs as appropriate.
50.3. For the purposes of Condition 50.2, the Contractor shall submit to the Authority's Representative,
within 20 Working Days after service of the notice, a fully itemised and costed list, with supporting
evidence, of all losses incurred by the Contractor as a result of the termination of the Contract, or
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the termination of any part of the Services, to be updated only in respect of ongoing costs each
week until the Contract is terminated.
50.4. The Authority shall not be liable under Condition 50.2 to pay any sum which, when added to any
sums paid or due to the Contractor under the Contract, exceeds the total sum that would have
been payable to the Contractor if the provision of the Services had been completed in
accordance with the Contract.
51. TRANSFER OF UNDERTAKING
51.1. The Parties recognise that the TUPE Regulations apply in respect of the award of the Contract
and that for the purposes of those Regulations the undertaking concerned, or each relevant part
of the undertaking, shall transfer to the Contractor on the Commencement of the Contract Period
in respect of that undertaking or relevant part of the undertaking.
51.2. The Contractor shall indemnify the Authority against any claim made against the Authority at any
time by any person currently or previously employed by the Authority or by the Contractor for
breach of contract, loss of office, unfair dismissal, redundancy, loss of earnings or otherwise (and
all damages, penalties, awards, legal costs, expenses and any other liabilities incurred by the
Authority) resulting from any act or omission of the Contractor after the commencement of the
Contract Period, except where such claim arises as a result of any breach of obligations (whether
contractual, statutory, at common law or otherwise) by the Authority arising or accruing before
the Commencement of the Contract Period.
51.3. The Contractor shall indemnify the Authority from and against any cost (including reasonable
legal costs), claim, liability, demand, expense or other legal recourse arising out of or in
connection with any claim by any person or any appropriate representative of that person
relating to any failure by the Contractor to comply with the obligations of Regulation 13 of the
TUPE Regulations.
51.4. The Contractor shall comply with the TUPE Regulations, all Codes of Practice, Statements of
Practice and/or other relevant guidance on workforce matters relating to public sector service
contracts and shall indemnify the Authority from and against any cost (including reasonable
legal costs), claim, liability, demand, expense or other legal recourse arising out of or in
connection with any claim by any person or any appropriate representative of that person
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relating to any failure by the Contractor to comply with the TUPE Regulations and/or any such
relevant Code of Practice, Statement of Practice or other guidance.
52. DISPUTE RESOLUTION
52.1. The Parties shall attempt in good faith to negotiate a settlement to any dispute between them
arising out of or in connection with the Contract by use of the following escalation procedure:
AUTHORITY CONTRACTOR
Level 1
Level 2
52.2. If the dispute cannot be resolved by the Parties pursuant to Condition 52.1, the dispute may, by
agreement between the Parties, be referred to mediation pursuant to Condition 52.4.
52.3. The performance of the Services shall not cease or be delayed by the reference of a dispute to
mediation pursuant to Condition 52.2.
52.4. The procedure for mediation and consequential provisions relating to mediation are as follows:
(a) If the dispute or difference is not resolved pursuant to the escalation procedure set
out above, either Party may (within fourteen (14) days of the last meeting pursuant to
the escalation procedure), before resorting to litigation, propose to the other in writing
that the dispute be settled by mediation in accordance with the Centre for Effective
Dispute Resolution (“CEDR”) Model Mediation Procedure (the “Model Procedure”).
(b) To initiate mediation, a Party must give notice in writing (an “ADR Notice”) to the
other Party requesting mediation in accordance with the Model Procedure. A copy of
the ADR Notice should be sent to CEDR.
(c) If there is any point on the conduct of the mediation (including as to the nomination of
the mediator) upon which the Parties cannot agree within fourteen (14) days from the
date of the ADR Notice, CEDR will, at the request of any Party, decide that point for
the Parties, having consulted with them.
(d) Mediation will commence no later than twenty-eight (28) days after the date of the
ADR Notice.
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53. LAW AND JURISDICTION
53.1. This Contract shall be governed by and interpreted in accordance with English Law and shall be
subject to the exclusive jurisdiction of the Courts of England and Wales.
54. RIGHTS OF THIRD PARTIES
54.1. Except where it is expressly provided otherwise, no person who is not a Party to this Contract
shall have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term
of this Contract.
55. COMPLIANCE WITH ENVIRONMENTAL REQUIREMENTS
55.1. The Contractor shall provide the goods and/or Services required under the Contract in
accordance with applicable laws and the Authority‟s environmental policy, which is to conserve
energy, water and other resources, reduce waste and phase out the use of ozone depleting
substances and minimise the release of greenhouse gases, volatile organic compounds and
other substances damaging to health and the environment.
55.2. The Authority is committed to promoting a low carbon, high growth, global economy. The
Contractor shall work with the Authority regarding any environmental or sustainability issues as
the Authority considers relevant, comply with contractual obligations and carry out any
reasonable request to ensure the protection of the environment, society and the economy and
promotion of sustainable development and sustainable procurement throughout the Contract
Period.
55.3. All written outputs, including reports, produced in connection with the Contract shall (unless
otherwise specified) be produced on recycled paper containing at least 80% post consumer
waste and used on both sides where appropriate.
55.4. Nothing in this Condition 55 shall relieve the obligations of the Contractor to comply with its
statutory duties and Good Industry Practice.
56. CONFLICT OF INTEREST
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56.1. The Contractor shall establish and maintain appropriate business standards, procedures and
controls to ensure that no conflict of interest arises between Services undertaken for the
Authority and that undertaken for other clients. The Contractor shall avoid knowingly
committing any acts which are likely to result in any allegation of impropriety against the
Authority, including conflicts of interest which are likely to prejudice his independence and
objectivity in performing the Contract, howsoever arising.
56.2. The Contractor shall notify the Authority immediately of any circumstances of which it
becomes aware which give rise or potentially give rise to a conflict with the Services and shall
advise the Authority of how they intend to avoid such a conflict arising or remedy such
situation. The Contractor shall subject to any obligations of confidentiality it may have to third
parties provide all information and assistance reasonably necessary (at the Contractor's cost)
that the Authority may request of the Contractor in order to avoid or resolve a conflict of
interest and shall ensure that at all times they work together with the Authority with the aim of
avoiding a conflict or remedy a conflict.
56.3. Pursuant to 56.2, the Authority shall have the right to require that the Contractor puts in place
"Ethical Walls" and will ensure and satisfy the Authority that all information relating to the
Contract and to the Services and Deliverables completed pursuant to it (to include all working
papers, draft reports in both tangible and intangible form) are not shared or made available to
other employees, contractors or agents of the Contractor and that such matters are not
discussed by the relevant staff with other employees, contractors or agents of the Contractor.
56.4. In the event of a failure to maintain the "Ethical Walls" as described above arising during the
course of this Contract, the Authority reserves the right to immediately terminate the Contract
on giving written notice to the Contractor and to pursue the Contractor for damages.
56.5. To the extent that any of the Contractor's staff breach this Conflict of Interest Condition, the
Contractor undertakes to keep the Authority fully and effectively indemnified in respect of all
costs, losses and liabilities arising from any wrongful disclosure or misuse of the Confidential
Information by the Contractor's staff. This indemnity shall be without prejudice to any other
rights or remedies, including injunctive or other equitable relief, which the Authority may be
entitled to, but for the avoidance of doubt shall be subject to the limitations of liability
(including without limitation the cap on liability) set out in this Contract.
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57. FLEXIBLE OPERATIONS
57.1. The Contractor accepts that the Authority has made it clear throughout the procurement which
led to this Contract that the nature of this Contract is such that flexibility will be key to
successfully delivering the Services detailed in the Statement of Service Requirements. The
Contractor therefore accepts that given the environment concerned, they will from time to time
be asked by the Authority to increase and possibly reduce Staff depending on the security
situation/requirements therein.
57.2. Whilst increases or decreases in the Contractor‟s Staff levels as detailed in Section 3: Schedule
of Prices and rates and Section 4: Statement of Service Requirements will be covered by means
of the variation procedure detailed in Condition 45, where particular circumstances e.g. changing
security situation or other developments, necessitate the removal or scaling back of the
Contractor‟s Staff, the Contractor agrees to make every effort to mitigate any costs incurred by
the Authority therein. The Authority‟s Representative and Contractor‟s Representative will
discuss and agree a remedy to any such issues or situations arising which is reasonable and
acceptable to both Parties.
57.3. Within its anticipated manpower provision, the Contractor will exercise rigorous attention to
making the most effective use of the Staff to meet the requirements specified in the Statement of
Services Requirements to minimise periods of Staff inactivity other than when on standby for
imminent deployments.
57.4. The Contractor acknowledges that as part of the Services it provides under this Contract, that it is
essential for its Staff to work co-operatively with other Authority contractors and Personnel at all
times throughout the period of this Contract.
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APPENDIX A: VARIATION TO CONTRACT FORM
APPENDIX A [See Condition 45]
Reference: CPG01604 PROVISION OF AFGHAN AIR BRIDGE CONTRACT REF: VARIATION No: DATE: / / 201.. BETWEEN:
The Secretary of State for Foreign and & [ ] Commonwealth Affairs
(hereinafter called (hereinafter called "the Authority") "the Contractor"
1. The Contract is varied as follows:
2. Words and expressions in this Variation shall have the meanings given to them in
the Contract. 3. The Contract, including any previous Variations, shall remain effective and unaltered
except as amended by this Variation. SIGNED by the Parties in duplicate: For: The Authority For: The Contractor By: ........................................ By: .................................... Full Name: ........................... Full Name: ....................... Title: ................……………. Title: ................................. Date: ..................................... Date: .................................
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APPENDIX B: CONFIDENTIALITY UNDERTAKING
APPENDIX B [See Condition 32.3]
(To be signed by persons employed in providing the services before being given access to Government information). This Confidentiality Undertaking is made as a Deed by me, [insert full name] to the Secretary of State for Foreign and Commonwealth Affairs (the “FCO”) in connection with a contract between [ ] and the FCO for the provision of Afghan Air Bridge service, contract reference CPG01604. I am employed by ……………….. I have been informed that I may be required to work for my employer in providing services to the Secretary of State for Foreign and Commonwealth Affairs. I understand that information in the possession of the FCO or obtained from the FCO must be treated as confidential. I hereby give a formal undertaking, as a solemn promise to my employer and to the FCO, that:
1. I will not communicate any of that information, or any other knowledge I acquire about the FCO in the course of my work, to anyone who is not authorised to receive it in connection with that work; and
2. I will not make use of any of that information or knowledge for any purpose apart from that
work. I acknowledge that this applies to all information that is not already a matter of public knowledge and that it applies to both written and oral information. I also acknowledge that this undertaking will continue to apply at all times in the future, even when the work has finished and when I have left my employment. I have also been informed that I will be bound by the provisions of the Official Secrets Acts 1911 to 1989. I am aware that under those provisions it is a criminal offence to disclose information that has been given to me or my employer by the FCO. I am aware that serious consequences (including criminal sanctions) may follow any breach of those provisions. EXECUTED AS A DEED by:.........................……… Surname: ........................................... Forenames: ........................................... Date of Signature: ........................................... In the presence of (a)…………………………………….(witness) (b) …………………………………… (witness) Contractor's Name:..............................…............ Contract Reference No.: .....................................
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APPENDIX C: KEY STAFF
APPENDIX C
[See Conditions 1.1 and 17]
KEY STAFF PROVISION OF ESTATE AFGHAN AIR BRIDGE CONTRACT REF: CPG01604
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APPENDIX D: COMMERCIALLY SENSITIVE INFORMATION
APPENDIX D [See Condition 1.1 and Condition 32]
PROVISION OF AFGHAN AIR BRIDGE
CONTRACT REF: CPG01604
CONFIDENTIAL INFORMATION (COMMERCIALLY SENSTIVE INFORMATION)
The tender documents in their entirety are considered Confidential Information/Commercially Sensitive Information, including but not limited to all pricing and supporting documentation.
CPG01604 – SECTION 3 – SCHEDULE OF PRICES & RATES
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CPG01604 – PROVISION OF AFGHAN AIR BRIDGE
(Section 2, Conditions 7, 26 & 28 refer in particular) 1. SOLE REIMBURSEMENT
1.1. The prices stated in this Section 3 constitute the only amounts payable by the Authority to the Contractor for providing the Services. The prices shall include all costs and expenses incurred either directly or indirectly by the Contractor in providing the Services.
1.2. The following elements will be reimbursed by the Authority to the Contractor at cost, on
production of invoices, and should not be reflected in the Contract Price:
Kabul International Airport and other airport costs within Afghanistan;
Third country airport costs only where the Authority explicitly requires a flight to/from that country for its purposes (ie not costs relating to the departure airport prior to an aircraft‟s arrival in Afghanistan. Such costs should be worked into the Monthly Standing Charge);
Fuel reimbursed at cost;
War Risk Insurance reimbursed at cost; 2. CONTRACT PRICE
Lease Payments (see Condition 7):
Basic Lease Payment covering standard
industry ACMI (not including War Risk
Insurance) for Minimum Guaranteed
Block Hours (total 40 hours per month)
X per hour
Supplemental Lease Payments covering
standard industry ACMI for additional
hours in excess of 40 Guaranteed Block
Hours plus five additional hours free of
charge in accordance with Contractor‟s
Proposal of 31 August 2012
X per hour
The Contractor will provide up to five (5)
additional hours, free of charge, to the monthly
(40 hours) ACMI Charges
Monthly Standing Charge:
Monthly Standing Charge: (fixed rate
covering all ancillary costs of managing
the aircraft to meet FCO contractual
requirements – see para 5. below)
3. CONTRACT PRICE ADJUSTMENT
3.1. In the event that the Contract Period is extended beyond the period specified in Section 2, 3.1, the monthly ACMI rates shall be adjustable in line with Condition 28, based on a figure
CPG01604 – SECTION 3 – SCHEDULE OF PRICES & RATES
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of up to but not exceeding the average Retail Price Index (RPIX) rate over the immediately preceding 12 month period prior to the extension. Those elements listed in this Section 3, 1.2 will continue to be reimbursed by the Authority to the Contractor at cost.
4. VALUE FOR MONEY
4.1. The Contractor undertakes to make all reasonable efforts to ensure that all goods and Services purchased in support of this Contract are purchased at the best possible market price, in line with the Authority‟s requirements to ensure „value for money‟. For the purpose of this Contract, „value for money‟ is defined as the optimum combination of whole life costs and quality to meet the Authority‟s requirements.
5. MONTHLY STANDING CHARGE
5.1. The fixed Monthly Standing Charge of US$20,000 will cover all ancillary charges relating to meeting the FCO contractual requirements not covered by the standard industry ACMI charges. The following list is not exhaustive but is indicative of all elements bidders were required to price into this element:
a. Health Insurance; b. Personal Accident Risk Insurance; c. Payroll; d. Per Diem; e. Laundry; f. Travel Hotel; g. Air Passage (eg. UK/Europe-Dubai-Kabul & Return); h. Auto Lease; i. Visas; j. Cellular & Sat Communications; k. Internet including Satellite Broadband; l. Meals (B,L,D + aircrew packed meals); m. Cleaners (FCO Block); n. Laundry; o. Site Manager; p. Accounting, Payroll, HR, IT Support; q. Project/Contract Management; r. Overlap costs of Personnel; s. Aircraft re-positioning costs; t. Any others;
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SECTION 4 – STATEMENT OF SERVICE REQUIREMENT 1. INTRODUCTION ............................................................................................................................. 2
2. AIRCRAFT SIZE AND MINUMUM REQUIREMENTS .................................................................... 2
3. COSTS ............................................................................................................................................. 2
4. PASSENGERS ................................................................................................................................ 2
5. FREIGHT ......................................................................................................................................... 3
6. ROUTES FLOWN ............................................................................................................................ 3
7. GUARANTEED BLOCK HOURS .................................................................................................... 3
8. CONTRACTOR'S RESPONSIBILITIES ......................................................................................... 3
9. QUALIFICATIONS AND TRAINING ............................................................................................... 4
10. FITNESS AND DEPLOYMENT .................................................................................................. 4
11. VETTING ..................................................................................................................................... 4
12. TERMS AND CONDITIONS ....................................................................................................... 4
13. ADMINISTRATIVE REQUIREMENTS........................................................................................ 4
14. PROFILES .................................................................................................................................. 4
15. CONFIDENTIALITY .................................................................................................................... 5
16. DIVERSITY AND EQUAL OPPORTUNITIES ............................................................................ 5
17. PERFORMANCE MONITORING AND REVIEW ....................................................................... 5
18. AUTHORITY'S RESPONSIBILITIES ......................................................................................... 5
19. KEY PERFORMANCE INDICATORS (KPIs) ............................................................................. 6
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1. INTRODUCTION
The Foreign & Commonwealth Office (FCO) has a requirement for service provision of one fixed wing aircraft and experienced aircrew to provide a regular shuttle service to convey HMG personnel contractors, and others between various locations within Afghanistan and into and out of the country. The Contract will commence on 5 October 2012. The Contract will then run for 24 months with the option to extend for a further 4 times 6 months options (total 4 years maximum). 2. AIRCRAFT SIZE AND MINUMUM REQUIREMENTS
The aircraft should be able to carry a minimum of 12 passengers, luggage and small items of freight. The requirement is currently serviced with a Beechcraft 1900D light aircraft which can carry up to 16 passengers and cargo. Subject to approval by the Authority, a suitable substitute may be acceptable. The aircraft should also meet the following minimum requirements:
Airframe
- Manufactured in Western Europe or North America; - Registered in a country with a reputable and reliable CAA; - Reliable in all weather conditions and capable of flying at night;
- Twin engine and pressurized;
Aircraft Protection Measures
- No DAS fit required;
Communications
- UHF/VHF/Tactical VHF on FM band radio/comms fit and satellite phone;
Night flight capable
- The aircraft will be required to fly at night, but there is no requirement for the use of NVG;
3. COSTS
The following costs will be reimbursed to the Contractor at cost:
Kabul International Airport charge (currently £1,436 per day);
Fuel reimbursed at cost;
War risk insurance reimbursed at cost; 4. PASSENGERS
The service will principally serve all personnel based at British Embassy Kabul (BEK) and Provincial Reconstruction Teams (PRT) as well as VIP visitors and DfID contractors.
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The service may also be used by personnel from:
Other UK government departments and UK armed forces on official business in Afghanistan;
Foreign government working alongside HMG in Afghanistan, including Canada, Denmark, Estonia, USA;
Commercial contractors to HMG such as Crown Agents and G4S working on official business in Afghanistan. This may include their locally employed Afghan nationals;
Locally employed Afghan nationals from PRT and DST (District Support Teams); 5. FREIGHT
In addition to the requirement to move BEK and PRT personnel, as well as VIP visitors and DFID contractors, the requirement will also exist to occasionally move small items of freight; this will include dangerous goods. The contractor must be able to assist the authority with the movement of freight which is to include being able to comply with IATA dangerous goods legislation for the handling of such freight, and the provision of suitably qualified staff. 6. ROUTES FLOWN
The most common route is between Kabul and Camp Bastion. The aircraft will also be required to fly between Kabul and Bost Airfield, and occasionally between Kabul – Bamiyan and Kabul – Herat routes. The aircraft may be required to fly between any of the following: Kabul, Camp Bastion, Bost, Bamiyan, Herat, Kandahar, Kunduz, Mazar, Jalalabad Airport. The aircraft may be required to fly to any other airport within Afghanistan or to a neighbouring country subject to security. 7. GUARANTEED BLOCK HOURS
The new contract will be based on a guaranteed 40 block flying hours per month. The aircraft should be available on standby 7 days per week and will be required to fly during hours of darkness. 8. CONTRACTOR'S RESPONSIBILITIES
The Contractor is required to comply with all laws relating to health and safety at work, as recognised in the UK, and all other relevant employment legislation. All issues of Health and Safety that could cause concern should be reported to the Authority. The Contractor is required to comply with all Afghan customs and other laws relating to the shipment of unauthorised cargo/items e.g. alcohol and drugs etc. The Contractor must maintain the required service capacity at all times. The Contractor must be able to provide sufficient personnel such that the aircraft services are available to meet the requirements indicated above throughout the Contract Period. If for any reason a team member becomes unavailable for duty in Afghanistan the Contractor will make every effort to replace that person within 24 hours. The Contractor must provide all certificates, licences and permits necessary to provide the required service in Afghanistan. In the event of aircraft unserviceability the contractor is to ensure an appropriate substitute aircraft is available to maintain the service required by the authority.
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The contractor is responsible for all operations and ground handling arrangements required to support the contract, including the arrangement of PPRs. 9. QUALIFICATIONS AND TRAINING
The Contractor's aircrew must be suitably qualified and experienced to take on this role. This will include pilot and crew being suitably qualified to fly during hours of darkness. CVs and other details on Contractor‟s Staff must be made available on request to the Authority. The Contractor will be responsible for ensuring that all members of the crew have a suitable background and previous expertise and experience for the envisaged tasks and have been training for the task in Afghanistan before deployment. The Contractor will submit a professional training plan for the crew and related pre-posting refresher training, indoctrination on arrival and continuation training for the Authority's appraisal. 10. FITNESS AND DEPLOYMENT
The Contractor will be required to demonstrate its staff are able to meet and maintain the standard of health and fitness necessary to carry out their duties as specified in the Contract. Objective criteria (eg a medical certificate) should be provided to the OSM where required. Before any personnel is deployed, a mandatory attendance at a briefing, the format of which as agreed between the Authority and the Contractor, and undertake appropriate pre-deployment training for the specific role which they will be fulfilling. 11. VETTING
The Contractor must provide appropriate assurances to the Authority in respect of the suitability of individuals in terms of their security clearance for the delivery of the Contract. All individuals should have passed a Counter Terrorist Check, and may, at the direction of the Authority, need to be cleared to SC level. 12. TERMS AND CONDITIONS
The Contractor will be responsible for determining the terms and conditions of services for its deployed staff, including salary, allowances, leave, travel, transport to post, medical and dental cover, insurance, training etc, and will meet all expenses related to these and to recruitment, training and deployment of its staff. 13. ADMINISTRATIVE REQUIREMENTS
The Contractor will be responsible for shipment, storage/demurrage costs and customs clearance of the personal and official effects of its staff and for making all travel arrangements to post. The Authority will assist in obtaining visas and customs clearance as necessary. 14. PROFILES
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The Contractor‟s staff will be required to comply with the dress code when on duty in Afghanistan, as specified by the OSM. The Contractor will be responsible for providing the specified clothing. 15. CONFIDENTIALITY
The Contractor‟s staff will sign a confidentiality agreement in which they will agree to make no unauthorised disclosure of information on Authority operations and policies in Afghanistan. All Contractor Staff will be required to sign the Official Secrets Act. 16. DIVERSITY AND EQUAL OPPORTUNITIES
The Authority attaches the highest importance to equal opportunities and the promotion of diversity in the workforce, and will expect to see this reflected in the Contractor‟s approach to recruitment of Staff for this Contract. 17. PERFORMANCE MONITORING AND REVIEW
The Contractor‟s Manager will be required to present a report each week to the OSM covering the following issues:
All tasks completed in the previous 7 days.
Changes in the perceived risk in country.
Names of all deployed personnel on a weekly basis, stating location.
Status of all Staff (sick absence, leave, out of station etc).
Status of the aircraft operated by the Contractor on behalf of the Authority
Tasks forecast for the next week.
Any other issues.
The Contractor should submit a monthly report to the Authority‟s Operations Team within its Afghanistan Department in London and British Embassy Defence Section / OSM.
The Contractor‟s performance during the Contract will be subject to regular reviews by British Embassy Kabul and the FCO Afghan Dept Ops Team which will ensure that a consistently high standard of performance is maintained by the Contractor and to provide the Contractor with the opportunity to formally make known any concerns that they may have concerning the execution of the Contract. This will include regular formal meetings between both parties. 18. AUTHORITY'S RESPONSIBILITIES
The Authority reserves the right to request the immediate removal any member of the crew or support team for any of the following reasons: poor performance, the consumption of any alcohol whilst on duty or within 12 hours of commencing duty, the possession or consumption of narcotics, inappropriate conduct at any time, any actions which may cause embarrassment to the Authority or HMG, or any other unprofessional conduct. The Authority will ensure that all HMG employees are made aware that in cases of the safety of any member of the Authority‟s personnel coming under direct threat while under the care of the Contractor‟s crew, it is the senior Contractor‟s staff member who is in charge of the immediate response to the security threat.
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19. KEY PERFORMANCE INDICATORS (KPIs)
1. Introduction. Key Performance Indicators (KPIs) are intended to monitor the Contractor‟s performance and to promote continuous performance improvement. Detailed below are the eight KPI‟s that the Authority intends to implement for the duration of this contract. KPI‟s will be scored quarterly. This may be amended at a later date by mutual agreement between the parties. The scores, scoring mechanism and other matters relating to KPIs may be reviewed by all parties to the Framework at regular intervals and adjusted upwards or downwards depending on the Contractor‟s abilities to achieve acceptable scores, and the continued relevance of a KPI to the Authority‟s objectives.
2. Scoring Mechanism The scoring mechanism below will be employed to score the Contractor‟s performance against each KPI. Wherever practical, objective methods rather than subjective methods of obtaining the score shall be employed.
Scoring Matrix
1
EXCELLENT: The Contractor is performing excellently, fully
meeting and exceeding the required service Levels.
2
SATISFACTORY: The Contractor has met the expected
performance target.
3
SOME CONCERNS: The Contractor has failed to meet the expected
performance target for the current project.
4
CONCERNS: The Contractor has failed to meet the expected
performance target during the last three projects and has been given
a last chance to reach the required performance level before escalation.
5
SERIOUS CONCERNS: Unsatisfactory Performance over four or
more projects. Escalation procedure invoked and Contract Termination
under consideration.
INSTRUCTIONS - Use the Scoring Matrix to determine the actual score against each KPI. Insert this figure into the
score box. The box will colour appropriately.
3. Remuneration & Performance
The method of remuneration is established in Section 3 Schedule of Rates & Prices and this concept is to be maintained whilst still embracing the requirements of this Section 4. Should the Contractor score a 3, 4 or 5 for three or more of the KPIs, the Authority will be entitled to a discount on the Contractor‟s fee according to the following table:
KPI scores Adjustment to Contractor’s fee
All KPIs scoring 1 – 2, and up to max two KPIs scoring 3:
No adjustment
1 or 2 KPIs scoring 4 or 5: - 5% discount
3 or more KPIs scoring 3 – 5: - 10% discount
CPG01604 – SECTION 4 – STATEMENT OF SERVICE REQUIREMENT
Page 7 of 7
Ref: Indicator:Performanc
e Target
Contractor's Performance
Check/Monitoring Method and FrequencyScore
FCO Comments/
Supporting
Evidence
KPI 1Service provided to satisfaction of
Authority.100%
FCO/British Embassy Kabul to raise concerns
during service delivery. Wash-up following
completion of service.
KPI 2
Contract Management: accurate
indication of process and timescale
for service.
90%Quotes accurate and realistic forecast
avoiding price-creep during service delivery.
KPI 3
Contract Management: Action taken
only on written instruction from FCO
stakeholder.
100%
No chargeable actions taken by Contractor
prior to written authority from FCO
stakeholder.
KPI 4
Contract Management: Provision of
regular updates on progress,
particularly highlighting risks which
may affect timescale and/or
financial forecasts.
100%
Contractor's representative keeping
FCO/British Embassy Kabul advised of all
such progress.
KPI 5
Contract Management: Accurate
and timely electronic invoice
performance. Invoices generally
reflecting original quote (KPI 2)
avoiding price creep during service
delivery.
95%
Pro-forma invoice emailed to FCO
London/British Embassy Kabul as appropriate
within X days (to be mutually agreed
following completion of bids).
KPI 6
Contract Management: MI reports
produced on time (content and
timing of MI to be confirmed
following completion of bids).
95%
Contractor's representative to compile and
submit to FCO stakeholder (tbc following
bids).
KPI 7
Implementation of any agreed
action points arising from
Contractor's representative and FCO
stakeholder meetings.
100%
Action points implemented and reported to
FCO London/British Embassy Kabul within
appropriate timescale.
KPI 8
Contractor's representative available
to meet FCO stakeholder
quarterly/when required.
100%Quarterly meetings of Contractor and FCO
stakeholder.