PROVISION OF AFGHAN AIR BRIDGE - data.gov.uk

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

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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


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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


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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;


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“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;


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“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;


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"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-


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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


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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;


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“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;


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"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;


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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;


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(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


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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


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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


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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

Page 2 of 2

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;

CPG01604 – SECTION 4 – STATEMENT OF SERVICE REQUIREMENT

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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


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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.

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