UKFI 13-06-27 – Invitation to Tender
Invitation to Tender for the Provision of Specialist Financial Services
UKFI 13-06-27
June 2013
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TABLE OF CONTENTS
Section 1 – Background Information
5
Section 2 – Instructions to Tenderers & Conditions of Tender
13
Section 3 – Tender Evaluation
27
Section 4 – Specification
39
Section 5 – The Tenderer's Response
45
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Section 1 – Background Information
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TABLE OF CONTENTS
1. Introduction
9
2. The Authority
9
3. Other Contracting Bodies (OCBs)
9
4. Overview of the Invitation to Tender process
10
5. Proposed Framework Agreement – Multiple Providers
10
6. Orders under Multiple Provider Frameworks
11
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1. Introduction
1.1. This document is the United Kingdom Financial Investments Limited’s (“UKFI”) Invitation to Tender (“ITT”) for the
provision of Specialist Financial Services with respect to Her Majesty’s Government’s (“HMG”) shareholdings in
Lloyds Banking Group plc (“Lloyds”) and The Royal Bank of Scotland Group plc (“RBS”). It provides potential
Tenderers with the necessary information to decide whether to submit a Tender response to UKFI. It also sets
out the necessary requirements to ensure that the Tender is in accordance with the Specification issued by
UKFI. This ITT has not been subject to a contract notice publication in the Official Journal of the European Union
(“OJEU”) as the scope of the services being procured is exempt as categorised in the Public Contracts
Regulations 2006 (SI5) (the “Regulations”), specifically regulation 6 (2)(h).
1.2. UKFI believes that now is an appropriate time to establish a new Framework Agreement for Specialist Financial
Services to replace the shortlists established under the 2009 pre-qualification process. This new Framework will
be divided into four (4) specialist service categories (“Lots”), from which four (4) lists of successful Tenderers will
be established (“Panels”). It is from these Panels that UKFI would expect to make appointments to assist it in
any future transaction(s) involving HMG’s shareholdings in Lloyds and RBS.
1.3. Tenderers should note that there is no commitment from UKFI to place any minimum amount of work through
the Framework Agreement. UKFI reserves the right to launch a public Tender to source services outside this
Framework Agreement at all times.
2. The Authority
2.1. UKFI is a Companies Act Company with Her Majesty’s Treasury (“HMT”) as its sole shareholder. The company’s
activities are governed by its Board, which is accountable to the Chancellor of the Exchequer and – through the
Chancellor – to Parliament.
2.2. UKFI was created in November 2008 as part of the United Kingdom’s response to the financial crisis. It is
responsible for managing HMG’s shareholdings in Lloyds and RBS. UKFI is also responsible for managing
HMG’s 100% shareholding and loans to UK Asset Resolution Ltd (“UKAR”). UKAR was formed in October 2010
to integrate the activities of Northern Rock (Asset Management) plc and Bradford & Bingley plc. The services
procured through this Framework Agreement will only relate to HMG’s shareholdings in Lloyds and RBS.
2.3. UKFI’s overarching objective is to manage these shareholdings commercially to create and protect value for the
taxpayer as shareholder and to devise and execute a strategy for realising value for HMG’s shareholdings in an
orderly and active way over time within the context of protecting and creating value for the taxpayer as
shareholder, paying due regard to the maintenance of financial stability and acting in a way that promotes
competition.
2.4. Further information on the Authority can be found by visiting http://www.ukfi.co.uk/.
3. Other Contracting Bodies (OCBs)
3.1. The Framework Agreement is created exclusively for the use of the Authority. OCBs will not have access to this
agreement.
3.2. The Framework Agreement is non-exclusive: the Authority gives no undertaking that they will purchase the
whole or any of their requirement for services through this arrangement.
3.3. For the avoidance of doubt, a Tenderer who is already engaged with the Authority or HM Treasury is not
prohibited from submitting a Tender in response to this ITT.
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4. Overview of the Invitation to Tender process
4.1. The Authority wishes to establish a multi Provider, multi Lot Framework Agreement for the provision of Specialist
Financial Services in relation to HMG’s shareholdings in Lloyds and RBS. The Authority is managing this
procurement process as being a general exclusion under the regulations specified in paragraph 1, specifically
regulation 6(2)(h). The aim is to establish a services Framework Agreement.
4.2. In accordance with the general exemption the Authority has not issued a pre-qualification questionnaire. This ITT
is open to all bidders who meet the minimum criteria for selection.
4.3. Section 2 contains the instructions to Tenderers and the conditions of this ITT (“Conditions of Tender”).
4.4. There are also a number of certificates contained in the Schedules in Section 5 for you to confirm the basis on
which your Tender is submitted.
4.5. Section 4 contains the Specification.
4.6. Section 5 contains the Response requirements. This sets out how the Tenderer must respond to the
Specification.
4.7. Prior to commencing formal evaluation, Tender Responses will be checked to ensure they are fully compliant
with the Conditions of Tender and clarification sought with regard to minor non-compliances. Non-compliant
Tender Responses may be rejected by the Authority. Tender Responses which are deemed by the Authority to
be fully compliant will proceed to evaluation. These will be evaluated using the scoring criteria and weightings
detailed in Section 3.
4.8. Following evaluation of the compliant Tenders and approval of the outcome the Authority intends to appoint a
number of successful Providers for each Lot (as detailed further in Section 4) to enter into a Framework
Agreement. The result will be the creation of corresponding specialist Panels.
5. Proposed Framework Agreement – Multiple Providers
5.1. It is the Authority’s intention to enter into a Framework Agreement with more than one Provider for each Lot,
creating four (4) specialist Panels.
5.2. The Lots are seperated into four (4) specific service areas and are:
5.2.1.Lot 1 – Bookrunner(s) to participate in the sale and distribution of securities, including shares and equity
linked products. The Authority retains the right to appoint one or more Bookrunners as Global Coordinators
at the time of a transaction, and to appoint a Coordinator(s) in a retail offering;
5.2.2.Lot 2 – Co-Lead Manager(s) or equivalent non-book running distribution role to assist in the sale and
distribution of securitites, including shares and equity linked products, which could include specialised
distribution;
5.2.3.Lot 3 – Capital Markets Adviser(s) to assist in a sale process to achieve optimal execution in the context
of sale of securities, including shares and equity linked products;
5.2.4.Lot 4 – Financial and/or Strategic Adviser(s) in formulating the Authority’s privatisation strategy and/or in
executing strategic transactions.
5.3. Tenderers are advised of the following Conditions relating to applying for the Lots:
5.3.1.Tenderers may apply for more than one Lot. If Tenderers choose to apply for more than one Lot, they must
respond with separate Tenders for each Lot and address the Lot-specific criteria for the Lot(s) that they are
applying for, as set out in Section 5.
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5.3.2.Where Tenderers apply for more than one Lot, Tenderers must not reference Tender Responses in one
particular Lot with answers for another Lot. For example, Tenderers must NOT state as their Response to
Lot 4 criteria Responses such as “see answer to Lot 1”. Tenderers answering in such a manner may have
their submission treated by the Authority as a non-response.
5.4. Tenderers applying for Lot 1 and/or Lot 2 are not eligible to apply for Lot 3. In the Authority’s view, this would
lead to an unacceptable conflict of interest. Tenderers may apply for both Lot 3 and Lot 4, or all of Lots 1, 2 and
4.
5.5. The Authority reserves the right not to conclude any Framework Agreement(s) as a result of the current
procurement process.
5.6. Tenderers who successfully qualify onto the Bookrunner Panel (Lot 1) will be given the opportunity, upon their
request, to meet with the Authority at least once every 6 months.
6. Orders Under Multiple Provider Frameworks
6.1. In the event that the Authority decides to use this multi Provider Framework Agreement to source services it is
expected that this will be conducted through a Mini-Competition between all Providers of the relevant Panel.
However, in transactions which require commercial confidentiality, including capital markets transactions, it will
be critical for the Authority to maintain secrecy of the selection process to minimise the risk of leaks to the
market and thereby any price impact. Therefore, in relation to any such transactions the Authority would be likely
to use a Direct Award to award a Contract(s) at the appropriate time.
6.2. In a Mini-Competition, a Call-Off Contract(s) will be awarded to the highest scoring Provider(s) from the Panel
qualified to the deliver the particular services required for the specific transaction. The process is explained in
more detail below.
6.3. A Mini-Competition will involve inviting Tenders and requesting “sealed bids” from all the Providers on the
relevant Panel, requesting, for example,
6.3.1.particular delivery timescales;
6.3.2.additional security needs;
6.3.3.particular mixes of quality systems and rates;
6.3.4.particular mixes of rates and quality;
6.3.5.where the terms include a price mechanism;
6.3.6.individual special terms (e.g. specific to the particular services that will be provided to meet a particular
requirement).
6.4. In addition to the requirements set out in clause 6.3 above, in a Mini-Competition Providers will be asked to
submit information in response to both qualitative and commercial criteria relating to the transaction in question.
The Order Form will specify these criteria and how they will be assessed and weighted. This will form the basis
for scoring the Responses. The highest scoring Provider(s) will be awarded the Call-Off Contract under the MiniCompetition.
6.5. The Call-Off Contract(s) as a result of a Mini-Competition will be formed by the issue of an Order Form by the
Authority to the Provider and acceptance by the Provider of such an Order. The Call-Off Contract will be on such
terms as specified in the Framework Agreement (Section 5, Schedule 4), supplemented as appropriate by other
details which will be specified in the Order.
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6.6. In the event that the Authority awards a Contract(s) via a Direct Award, the Authority will select the Provider(s)
with the highest score as determined by the criteria outlined in the table below. If no Contract is reached with the
selected Provider(s), the Authority will pass the opportunity onto the next highest scoring Provider(s).
6.7. Direct Awards will be granted based on an assessment as set out in the following table in the event that the
Authority decides to use this multi Provider Framework Agreement to source services:
Pass / Fail criteria
Any actual, potential and perceived conflicts of
interest and how these will be managed
Qualitative criteria
Pass/Fail
If this question cannot be
addressed to the satisfaction of
the Authority, the Tenderer will
fail to meet this requirement
Weighting
Established Framework
mechanism
50%
Scores achieved on qualitative criteria most
relevant to the specific transaction in question.
For this scoring, the initial response to the ITT
will be subject to moderation evidenced by any
information subsequently gathered by the
Authority which indicates a change in
circumstances. Examples of such changes
could include but are not limited to key
personnel changes, or structural changes
resulting from acquisitions or disposals. This
assessment may also include evidence
obtained in any Contracts(s) that have
previously been awarded by the Authority to the
Provider
Evidence of high quality of insight on the
Authority’s shareholdings and/or mandate
through active engagement with the Authority;
such as views on Lloyds’ and RBS’ value
prospects, investors feedback, insight into
evolving debt and equity market conditions,
updates on regulatory developments in the
financial sector
25%
Scoring 0-100
25%
Scoring 0-100
Commercial criteria
50%
The fees quoted in the original Tender for the
transaction which is most closely associated to
the specific transaction, and the proposed
commercial terms around the time of this Direct
Award
50%
Scoring 0-100
6.8. Directly Awarded Call-Off Contract(s) will be formed by the issue of an Order Form by the Authority to the
Provider and acceptance by the Provider of such an Order. Call-Off Contract(s) will be on the terms specified in
the Framework Agreement in Schedule 4 of Section 5, supplemented as appropriate by other details which will
be specified in the Order Form.
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Section 2 - Instructions to Tenderers & Conditions of
Tender
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TABLE OF CONTENTS
1.
General
17
2.
Confidentiality
18
3.
Freedom of information
19
4.
Tender validity
19
5.
Timescales
20
6.
Authority’s contact details
20
7.
Registration of interest in submitting a Tender
20
8.
Preparation of Tender
21
9.
Submission of Tenders
21
10.
Canvassing
22
11.
Disclaimers
22
12.
Collusive behaviour
22
13.
No inducement or incentive
23
14.
Acceptance of the Contract
23
15.
Queries relating to Tender
23
16.
Amendments to Tender documents
23
17.
Late Tenders
24
18.
Proposed amendments to the Framework Agreement by the Tenderer
24
19.
Modification and withdrawal
24
20.
Right to reject/disqualify
24
21.
Right to cancel, clarify or vary the process
25
22.
Customer references
25
23.
Notification of award
25
24.
Debriefing
25
25.
Statement of Compliance
25
26.
Term of the Framework Agreement
25
27.
Procurement Transparency
26
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1. General
1.1. These instructions are designed to ensure that all Tenderers are given equal and fair consideration. It is
important therefore that Tenderers provide all the information asked for in the format and order specified.
If you have any doubt as to what is required please contact the following in writing only:
UKFI Procurement Team
E-mail: [email protected]
Address: 100 Parliament Street, London, SW1A 2BQ
1.2. Tenderers should read these instructions carefully before completing the Tender documentation. Failure to
comply with these requirements for completion and submission of the Tender response may result in the
rejection of the Tender. Tenderers are advised therefore to acquaint themselves fully with the extent and nature
of the services and contractual obligations. These instructions constitute the Conditions of Tender. By
participating in the Tender process the Tenderer confirms that it accepts these Conditions of Tender.
1.3. All material issued in connection with this ITT shall remain the property of the Authority and shall be used only
for the purpose of this procurement exercise.
1.4. The Tenderer shall ensure that each and every sub-contractor, consortium member and adviser abides by the
terms of these instructions and the Conditions of Tender.
1.5. The Tenderer shall not make contact with any other employee, agent or consultant of the Authority who are in
any way connected with this procurement exercise during the period of the procurement exercise, unless
instructed otherwise by the Authority. Exception will be made if any Tenderer is already engaged in any activity
with HM Treasury or the Authority, however, any such Tenderers shall not engage on the subject of this
procurement.
1.6. The Authority shall not be committed to any course of action as a result of:
1.6.1.
issuing this ITT or any invitation to participate in this procurement exercise;
1.6.2.
an invitation to submit any response in respect of this procurement exercise;
1.6.3.
communicating with a Tenderer or a Tenderer’s representatives or agents in respect of this procurement
exercise; or
1.6.4.
any other communication between the Authority (whether directly or by its agents or representatives) and
any other party.
1.7. Tenderers shall accept and acknowledge that by issuing this ITT the Authority shall not be bound to accept any
Tender and reserves the right not to conclude a contract for some or all of the services for which Tenders are
invited.
1.8. The Authority reserves the right to amend, add to or withdraw all or any part of this ITT at any time during the
procurement exercise.
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2. Confidentiality
2.1. Subject to the exceptions referred to in paragraph 2.2, the contents of this ITT are being made available by the
Authority on condition that:
2.1.1.
Tenderers shall at all times treat the contents of the ITT and any related documents as confidential, save
in so far as they are already in the public domain;
2.1.2.
Subject to paragraph 2.2, Tenderers shall not disclose, copy, reproduce, distribute or pass any of the
Information to any other person at any time or allow any of these things to happen;
2.1.3.
Tenderers shall not use any of the Information for any purpose other than for the purposes of submitting
(or deciding whether to submit) a Tender; and
2.1.4.
Tenderers shall not undertake any publicity activity within any section of the media in relation to this ITT.
2.2. Tenderers may disclose, distribute or pass any of the Information to the Tenderer’s advisers, sub-contractors or
to another person provided that either:
2.2.1.
This is done for the sole purpose of enabling a Tender to be submitted and the person receiving the
Information undertakes in writing to keep the Information confidential on the same terms as if that person
were the Tenderer; or
2.2.2.
The Tenderer obtains the prior written consent of the Authority in relation to such disclosure, distribution
or passing of Information; or
2.2.3.
The disclosure is made for the sole purpose of obtaining legal advice from external lawyers in relation to
the procurement or to any contract arising from it; or
2.2.4.
The Tenderer is legally required to make such a disclosure.
2.3. In paragraphs 2.1 and 2.2 above the definition of ‘person’ includes but is not limited to any person, firm, body or
association, corporate or incorporate.
2.4. The Authority may disclose detailed information relating to Tenders to its officers, employees, agents or
advisers and the Authority may make any of the contract documents available for private inspection by its
officers, employees, agents or advisers. The Authority also reserves the right to disseminate information that is
materially relevant to the procurement to all Tenderers, even if the information has only been requested by one
Tenderer, subject to the duty to protect each Tenderer's commercial confidentiality in relation to its Tender
(unless there is a requirement for disclosure under the Freedom of Information Act, as explained in paragraphs
3.1 to 3.3 below).
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3. Freedom of information
3.1. In accordance with the obligations and duties placed upon public authorities by the Freedom of Information Act
2000 (“FoIA”), the Authority may, acting in accordance with the Secretary of State’s Code of Practice on the
Discharge of the Functions of Public Authorities under Part 1 of the said Act, or the Environmental Information
Regulations (“EIR”) be required to disclose information submitted by the Tenderer to the Authority.
3.2. In respect of any information submitted by a Tenderer that it considers to be commercially sensitive the
Tenderer should:
3.2.1.
clearly identify such information as commercially sensitive;
3.2.2.
explain the potential implications of disclosure of such information; and
3.2.3.
provide an estimate of the period of time during which the Tenderer believes that such information will
remain commercially sensitive.
3.3. Where a Tenderer identifies information as commercially sensitive, the Authority will endeavour to maintain
confidentiality. Tenderers should note, however, that, even where information is identified as commercially
sensitive, the Authority may be required to disclose such information in accordance with the FoIA or the EIR. In
particular, the Authority is required to form an independent judgment concerning whether the information is
exempt from disclosure under the FoIA or the EIR and whether the public interest favours disclosure or not.
Accordingly, the Authority cannot guarantee that any information marked “confidential” or “commercially
sensitive” will not be disclosed.
4. Tender validity
4.1. Tenders should remain open for acceptance for a period of 90 calendar days. A Tender valid for a shorter
period may be rejected.
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5. Timescales
5.1. Set out below is the proposed procurement timetable. All times referred to throughout this document refer
to British Summer Time and are presented in a 24 hour format. The timetable below is intended as a guide
and whilst the Authority does not intend to depart from the timetable it reserves the right to do so at any
stage.
DATE
STAGE
27 June 2013
ITT to be published on Contracts finder website
(https://online.contractsfinder.businesslink.gov.uk/ ) and the Authority’s official
website (www.ukfi.co.uk)
1 July 2013 (10:00)
Tenderers should submit their registration of interest to
[email protected] (see paragraph 7 below for further details)
1 July 2013 (10:00)
Clarification period closes (see paragraph 15 below for further details)
3 July 2013 (18:00)
Clarifications issued to Tenderers by the Authority to the extent possible
8 July 2013 (10:00)
Deadline for receipt by the Authority of electronic copy (in PDF) and ten (10)
hard copy responses to the ITT to the e-mail address and postal address
provided in paragraph 1.1
5.2. The Authority will revert to Tenderers with the results of this procurement process as soon as possible.
6. Authority’s contact details
6.1. Unless stated otherwise in these instructions or in writing from the Authority, all communications from
Tenderers (including their sub-contractors, consortium members, consultants and advisers) during the
period of this procurement exercise must be directed only in writing to the Authority as per paragraph 1.1
above.
6.2. All written or e-mailed communications should be clearly headed “UKFI Procurement - Invitation to Tender,
[Tenderer Name]” and include the name, contact details and position of the person making the
communication.
6.3. Requests for Tender clarifications must be submitted in accordance with the procedure set out in
paragraph 15 below.
7. Registration of interest in submitting a Tender
7.1. Tenderers should register their interest in the Authority’s procurement process by completing Schedule 9
in Section 5 and sending it to the e-mail address provided in paragraph 1.1 above no later than 10:00 on 1
July 2013.
7.2. Tenderers who have expressed an interest by the deadline of 10:00 on 1 July 2013 will receive copies of
clarifications requested where the Authority considers it appropriate, as set out in paragraph 15 below.
7.3. A Tenderer who does not express an interest is not precluded from submitting a Tender by 10:00 on 8
July 2013 (“the Deadline”) as set in paragraph 5 above, but may not receive the Authority’s responses to
clarifications.
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8. Preparation of Tender
8.1. Tenderers must obtain for themselves at their own responsibility and expense all the information
necessary for the preparation of Tenders. Tenderers are solely responsible for the costs and expenses
incurred in connection with the preparation and submission of their Tender and all other stages of the
selection and evaluation process. Under no circumstances will the Authority, or any of their advisers, be
liable for any costs or expenses borne by Tenderers, sub-contractors, suppliers or advisers in this process.
8.2. Tenderers are required to complete and provide all the information required by the Authority in accordance
with the Conditions of Tender and the Invitation to Tender. Failure to comply with the Conditions and the
Invitation to Tender may lead the Authority to reject a Tender Response.
8.3. The Authority relies on the Tenderer’s own analysis and review of information provided. Consequently,
Tenderers are solely responsible for obtaining the information which they consider is necessary in order to
make decisions regarding the content of their Tenders and to undertake any investigations they consider
necessary in order to verify any information provided to them during the procurement process.
8.4. Tenderers must form their own opinions, making such investigations and taking such advice (including
professional advice) as is appropriate, regarding the services and their Tenders, without reliance upon any
opinion or other information provided by the Authority or their advisers and representatives. Tenderers
should notify the Authority promptly of any perceived ambiguity, inconsistency or omission in this ITT, any
of its associated documents and/or any other information issued to them during the procurement process.
9. Submission of Tenders
9.1. The Tender must be submitted as set out in Section 5. Failure to do so may render the response noncompliant and it may be rejected by the Authority.
9.2. The Authority may at its own absolute discretion extend the closing date and the time for receipt of
Tenders specified in paragraph 9.4.
9.3. Any extension granted under paragraph 9.2 will apply to all Tenderers.
9.4. You must submit an electronic copy (in PDF) of your Tender to the Authority’s e-mail address in paragraph
1.1, to arrive no later than 10:00 on 8 July 2013, the Deadline. In addition, you must submit ten (10) hard
copies of your Tender to the Authority’s address in paragraph 1.1, to arrive no later than 10:00 on 8 July
2013, the Deadline. Each hard copy of the Tender should be stapled together. Tenders should be grouped
by Lot and clearly labelled by Lot number. Tenders may be submitted at any time before the Deadline.
Tenders received before the Deadline will be retained unopened until the closing date. Please ensure that
your e-mail and package are marked “UKFI Procurement – Tender Response, [Tenderer Name], [Lot
number]”. The contents of the electronic and hard copies of the Tender should be identical. In the event
that these differ, only the hard copy will be considered for evaluation.
9.5. Price and any financial data provided must be submitted in, or converted into, pounds sterling (GBP).
Where official documents include financial data in a foreign currency, a sterling equivalent must be
provided.
9.6. The Authority does not accept responsibility for the premature opening or mishandling of Tenders that are
not submitted in accordance with these instructions.
9.7. Tenderers should not include in the Tender any extraneous information which has not been specifically
requested in the ITT.
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10.
Canvassing
10.1. Any Tenderer who directly or indirectly canvasses any officer, member, employee, or agent of the
Authority or its members concerning the establishment of the contract or who directly or indirectly obtains
or attempts to obtain information from any such officer, member, employee or agent or concerning any
other Tenderer, Tender or proposed Tender may be disqualified.
11.
Disclaimers
11.1. Whilst the information in this ITT has been prepared in good faith, it does not purport to be comprehensive
nor has it been independently verified.
11.2. Neither the Authority, nor their advisors, nor their respective directors, officers, members, partners,
employees, other staff or agents:
11.2.1. makes any representation or warranty (express or implied) as to the accuracy, reasonableness or
completeness of the ITT; or
11.2.2. accepts any responsibility for the information contained in the ITT or for their fairness, accuracy or
completeness of that information nor shall any of them be liable for any loss or damage (other than
in respect of fraudulent misrepresentation) arising as a result of reliance on such information or any
subsequent communication.
11.3. Any persons considering making a decision to enter into contractual relationships with the Authority
following receipt of the ITT should make their own investigations and their own independent assessment of
the Authority and its requirements for the services and should seek their own professional financial and
legal advice. For the avoidance of doubt, the provision of clarification or further information in relation to
the ITT or any other associated documents (including the Schedules) is only authorised to be provided
following a query made in accordance with paragraph 15 of this Invitation to Tender.
11.4. Any contract concluded as a result of this ITT shall be governed by English Law.
12.
Collusive behaviour
12.1. Any Tenderer who:
12.1.1. fixes or adjusts the amount of its Tender by or in accordance with any agreement or arrangement
with any other party; or
12.1.2. communicates to any party other than the Authority the amount or approximate amount of its
proposed Tender or information which would enable the amount or approximate amount to be
calculated (except where such disclosure is made in confidence in order to obtain quotations
necessary for the preparation of the Tender or insurance or any necessary security); or
12.1.3. enters into any agreement or arrangement with any other party that such other party shall refrain
from submitting a Tender; or
12.1.4. enters into any agreement or arrangement with any other party as to the amount of any Tender
submitted; or
12.1.5. offers or agrees to pay or give or does pay or give any sum or sums of money, inducement or
valuable consideration directly or indirectly to any party for doing or having done or causing or
having caused to be done in relation to any other Tender or proposed Tender, any act or omission
shall (without prejudice to any other civil remedies available to the Authority and without prejudice to any
criminal liability which such conduct by a Tenderer may attract) be disqualified.
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13.
No inducement or incentive
13.1. The ITT is issued on the basis that nothing contained in it shall constitute an inducement or incentive nor
shall have in any other way persuaded a Tenderer to submit a Tender or enter into a contractual
agreement.
14.
Acceptance of the Contract
14.1. The Tenderer, in submitting the Tender, undertakes that in the event of the Tender being accepted by the
Authority and the Authority confirming in writing such acceptance to the Tenderer, the Tenderer will within
15 days of being called upon to do so by the Authority execute the contract in the form set out in Section 5,
Schedule 4 or in such amended form as may subsequently be agreed.
14.2. The Authority shall be under no obligation to accept any Tender.
15.
Queries relating to Tender
15.1. All requests for clarification about the requirements or the process of this procurement exercise shall be
made in accordance with 15.3 and 15.4 of these instructions.
15.2. The Authority will endeavour to answer all questions to the extent possible and as quickly as possible, but
cannot guarantee a minimum response time.
15.3. Clarification requests must be submitted via e-mail only to [email protected] from 27 June 2013.
Please ensure that the requirements of paragraph 6.2 are fulfilled followed by “- Clarification, [Tenderer
Name]” in the e-mail subject line.
15.4. No further requests for clarifications will be accepted after 10:00 on 1 July 2013.
15.5. In order to ensure equality of treatment of Tenderers, the Authority intends, at its discretion, to circulate the
questions and clarifications raised by Tenderers together with the Authority’s responses (but not the
source of the questions) to the extent possible to all participants by 18:00 on 3 July 2013.
15.6. Tenderers should indicate if a query is of a commercially sensitive nature – where disclosure of such query
and the answer would or would be likely to prejudice its commercial interests. However, if the Authority at
its sole discretion does not either consider the query to be of a commercially confidential nature or one
which all Tenderers would potentially benefit from seeing both the query and Authority’s response, the
Authority will:
15.6.1. invite the Tenderer submitting the query to either declassify the query and allow the query along with
the Authority’s response to be circulated to all Tenderers; or
15.6.2. request the Tenderer, if it still considers the query to be of a commercially confidential nature, to
withdraw the query.
15.7. The Authority reserves the right not to respond to a request for clarification or to circulate such a request
where it considers that the answer to that request would or would be likely to prejudice its commercial
interests.
16.
Amendments to Tender documents
16.1. At any time prior to the deadline for the receipt of Tenders, the Authority may modify the ITT by
amendment. Any such amendment will be numbered, dated and issued by the Authority to all prospective
Tenderers by 18:00 on 3 July 2013 to give prospective Tenderers reasonable time in which to take the
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amendment into account in preparing their Tenders. The Authority may, at its discretion, extend the
deadline for receipt of Tenders.
17.
Late Tenders
17.1. Any Tender received at the designated point after the deadline for receipt of Tenders as per paragraph 9.4
may be rejected unless the Tenderer can provide evidence to the Authority’s satisfaction that the Tender
was capable of being received by the due date and time.
18.
Proposed amendments to the Framework Agreement by the Tenderer
18.1. The Authority will not be undertaking negotiation of the Framework Agreement as set out in Section 5
Schedule 4. However, amendments by Tenderers and/or the Authority to clarify its terms are permitted as
per paragraph 18.3 below.
18.2. The Authority will consider proposed amendments strictly on their merits and within the limits imposed by
the regulations.
18.3. Any proposed amendments to the Framework Agreement must be detailed separately on the Proposed
Amendments form included in Schedule 8 of Section 5, and returned with the Tenderer’s Response.
18.4. Where the Authority makes changes to the Framework Agreement as a result of the proposals received it
will circulate the amended Framework Agreement to all Tenderers.
19.
Modification and withdrawal
19.1. Tenderers may modify their Tender prior to the Deadline by giving notice to the Authority via e-mail to the
e-mail address to the set out in paragraph 1.1 of this section.
19.2. The subject line should include the following text “UKFI Procurement – Notification of Tender Modification,
[Tenderer Name], [Lot number]”. No Tender may be modified subsequent to the Deadline for receipt.
19.3. The modification notice must state in full and clearly how the Authority should implement the
modification(s) and must be submitted in accordance with the provisions of paragraph 9.4.
19.4. Tenderers may withdraw their Tender at any time prior to the Deadline or any other time prior to accepting
the offer of a Framework Agreement. The notice to withdraw the Tender must be sent to the Authority by
e-mail to the e-mail address to the set out in paragraph 1.1 above. The subject line should include the
following text “UKFI Procurement – Notification of Withdrawal, [Tenderer Name], [Lot number]”.
20.
Right to reject / disqualify
20.1. The Authority reserves the right to reject or disqualify a Tenderer where:
20.1.1. the Tenderer fails to comply fully with the requirements of this Invitation to Tender or is guilty of a
serious misrepresentation in supplying any information required in this document; or expression of
interest; and/or
20.1.2. the Tenderer is guilty of serious misrepresentation in relation to its Tender; expression of interest;
and/or the Tender process; and/or
20.1.3. there is a change in identity, control, financial standing or other factor impacting on the selection
and/or evaluation process affecting the Tenderer.
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21.
Right to cancel, clarify or vary the process
21.1. The Authority reserves the right to:
21.1.1. amend the terms and conditions of the Invitation to Tender process,
21.1.2. cancel the evaluation process at any stage; and/or
21.1.3. require the Tenderer to clarify its Tender in writing and/or provide additional information. Failure to
respond adequately may result in the Tenderer not being selected.
22.
Customer references
22.1. Unless already taken up at an earlier stage in the procurement process and after the receipt of Tenders,
the Authority may contact and/or seek written references from at least two customer references of the
Tenderer.
23.
Notification of award
23.1. The Authority will notify the successful Tenderer(s) in writing as soon as possible.
24.
Debriefing
24.1. All unsuccessful Tenderers will be provided with a written debrief at the end of the process notifying them
of the outcome of the evaluation exercise.
25.
Statement of Compliance
25.1. A Statement of Compliance can be found at Section 5, Schedule 10. This will be used by the Authority for
checking the completeness of all returned Tenders in accordance with the said Schedule 10. Tenderers
shall ensure a response is provided for each item listed on the Statement of Compliance. Failure to do so
may result in the Tenderer being disqualified from the award process.
26.
Term of the Framework Agreement
26.1. The Framework Agreement shall take effect on the Commencement Date and shall expire either:
26.1.1. five (5) years after the Commencement Date (the period between the Commencement Date and this
date shall be known as the "Initial Term"); or
26.1.2. if the Authority elects to extend the Initial Term in accordance with the terms and conditions attached
to this ITT, at the end of the applicable Extension Period
unless it is terminated earlier in accordance with the terms of this Framework Agreement or otherwise by
operation of the Law.
26.2. The Authority may extend the duration of this Framework Agreement for a period of one year ("Extension
Period") from the expiry of the Initial Term by giving the Provider not less than one month’s written notice
prior to the end of the Initial Term. The Authority may exercise two such Extension Periods.
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27.
Procurement Transparency
27.1. HMG has set out the need for greater transparency across its operations to enable the public to hold public
bodies and politicians to account. This includes commitments relating to public expenditure, intended to
help achieve better value for money.
27.2. As part of the transparency agenda, HMG has made the following commitments with regard to
procurement and contracting:
27.2.1. All new central government ICT contracts over the value of £10,000 to be published in full online
from July 2010.
27.2.2. All new central government Tender documents for contracts over £10,000 to be published on a
single website from September 2010, with this information to be made available to the public free of
charge.
27.2.3. New items of central government spending over £25,000 to be published online from November
2010.
27.2.4. All new central government contracts to be published in full from January 2011.
27.3. Tenderers should note that the terms of the proposed Framework Agreement will permit the Authority to
publish the text of any Framework Agreement, subject to possible redactions at the discretion of the
Authority. In submitting a Tender, the Tenderer is acknowledging the Authority’s right to publish
information contained within that Tender, should that information be incorporated into any Framework
Agreement awarded.
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Section 3 – Tender Evaluation
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TABLE OF CONTENTS
1. Introduction
31
2. Evaluation process
31
3. Evaluation of Tenders
32
4. Award of Framework Agreement
367
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1. Introduction
1.1. The evaluation process will be conducted in a fair manner to ascertain the most qualified and economically
competitive Tenders.
2. Evaluation process
2.1. The evaluation process will feature some, if not all, of the following phases:
2.1.1.
Receipt and opening
Tender Responses will be formally logged upon receipt in accordance with the Authority’s
procurement procedures. Any Tender response that is received at the designated point after the
Deadline may be rejected and not considered for evaluation.
2.1.2.
Phase 1 – compliance checks
A small team from the Authority’s procurement team will then check the Statement of Compliance;
completion of which is mandatory. Tenderers are required to confirm in the Statement of Compliance
that they have provided a Response including, where applicable, any evidence requested against
each of the requirements, as directed, in the Specification and the Response requirements. In the
event that a Tenderer is unable to provide a positive response for any of the requirements, or a
detailed reason as to why a positive response cannot be given, the Authority may either exclude the
Tenderer from further participation in the evaluation process or, at its discretion, may seek clarification.
In the case of the latter, a failure by the Tenderer to provide a satisfactory response within the
Deadline specified in the request for clarification may result in its disqualification from the evaluation
process.
2.2. After receipt of the Tenders and compliance checks, the Authority’s procurement team will proceed through
some, or all, of the following phases of evaluation, as applicable:
2.2.1. Phase 2 – evaluation of Tender Responses by all evaluation panel members
Qualitative / technical evaluation
Quantitative / commercial evaluation
2.2.2. Phase 3 - moderation of panel member scores by moderator
Moderated scores to identify successful Tenderers for Lots 1, 2 and 4, based on the weightings as set
out in Section 5
Moderation and merging of qualitative and quantitative evaluation scores to establish identity
successful Tenderers for Lot 3
2.2.3. Phase 4 – customer references
taking up of written customer references as considered appropriate
2.2.4. Final moderation meeting between evaluation panel members and evaluation panel chair to review scores
identified in Phase 3
2.2.5. Evaluation report and recommendation by evaluation panel chair
2.2.6. Formal approval processes
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3. Evaluation of Tenders
The Tender process will be conducted to ensure that Tenders are evaluated fairly to ascertain the most qualified and
economically competitive Tenders. The Authority will use the evaluation criteria described below and detailed further in
Section 5 to determine if the Tenderer successfully qualifies for the Framework Agreement.
Tenders will be assessed based on two criteria: qualitative and commercial. The qualitative criteria have been
designed for the Authority to assess the ability of Tenderers to help the Authority best deliver its institutional mandate.
The commercial criteria have been designed to ensure the most competitive pricing for the Authority in the event of a
specific transaction, in line with its value for money mandate.
3.1. Lot 1 - Bookrunner
For Lot 1, the Tenders will be scored against the qualitative criteria set out below to determine if the Tenderer qualifies
for appointment to the Panel. Appointment to the Panel for Lot 1 therefore requires the Tenderer to demonstrate a very
high level of expertise and proven experience over time in specific areas described in the evaluation table below. The
evaluation panel will apply a threshold score of 70% to determine the list of successful Tenderer(s).
The evaluation panel will award a score of 0, 20, 40, 60, 80 or 100 (where 100 is the highest score, see table of
scoring definitions below) for the three (3) individual criteria which will then be weighted as specified in the table below.
The weighted average score will then be compared against the threshold score to determine those who score above
the threshold of 70%.
A commercial assessment will only be conducted on the fee quotes submitted by successful Tenderers. Although the
successful Tenderers will not be scored on their fee quotes at this stage, in the event the Authority decides to source
services through this Framework Agreement via a Direct Award, Tenderers who have provided the most competitive
quotes are more likely to be selected. Further details on the assessment framework in the event of a Direct Award are
set out in paragraph 6.7 of Section 1.
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3.1.1. Lot 1 evaluation criteria
The technical scoring criteria detailed below will be used in the evaluation process of the Tender Response.
Qualitative criteria
Strength of equity capital markets franchise:
Demonstrate with credible data and analysis,
including league tables and any other data
which you consider relevant, that you have
sufficient experience of having acted, as
Bookrunners, in large and complex transactions
in the recent past. Also demonstrate that your
firm has sufficient resources and the requisite
expertise, both equity capital markets and
Financial Institutions, to act in such
transactions. Refer to Section 5 for detailed
guidance in relation to specific questions.
Strength of equity trading platform:
Demonstrate with credible data and analysis
that you have a credible platform with
meaningful market positions in trading equities
and equity linked products, particularly in
Financial Institutions. Refer to Section 5 for
detailed guidance in relation to specific
questions.
Strength
of
distribution
platform:
Demonstrate with credible data and analysis,
including external rankings if available, to
demonstrate that you have a leading platform
for the sales, distribution and research of equity
and equity linked products, particularly in
Financial Institutions. Refer to Section 5 for
detailed guidance in relation to specific
questions.
Weighting
Established Framework
mechanism
40%
Scoring 0-100
20%
Scoring 0-100
40%
Scoring 0-100
3.1.2. Lot 1 Commercial Element
Tenderers are required to quote their fees as a percentage of the indicated size of different types of transactions,
including an Accelerated Book Build (“ABB”), a Fully Marketed Offering (“FMO”), and Equity Linked (“EQL”). Schedule
5 of Section 5 sets out the information required on Tenderers’ fees.
3.2. Lot 2 – Co-Lead Manager(s)
For Lot 2, the Tender will be scored against the qualitative criteria set out below to determine if the Tenderer qualifies
for appointment to the Panel. Appointment to the Panel for Lot 2 therefore requires the Tenderer to demonstrate the
appropriate expertise and proven experience over time in specific areas described in the evaluation table below. The
evaluation panel will apply a threshold score of 60% to determine the successful Tenderer(s).
The evaluation panel will award a score of 0, 20, 40, 60, 80 or 100 (where 100 is the highest score, see table of
scoring definitions below) for the three (3) individual criteria which will then be weighted as specified in the table below.
The weighted average score will then be compared against the threshold score to determine those who score above
the threshold of 60%.
A commercial assessment will only be conducted on the fee quotes submitted by successful Tenderers. Although the
successful Tenderers will not be scored on their fee quotes at this stage, in the event the Authority decides to source
services through this Framework Agreement via a Direct Award, Tenderers who have provided the most competitive
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quotes are more likely to be selected. Further details on the assessment framework in the event of a Direct Award are
set out in paragraph 6.7 of Section 1.
3.2.1. Lot 2 evaluation criteria
The technical scoring criteria detailed below will be used in the evaluation process of the Tender Response.
3.2.2. Lot 2 Commercial Element
Qualitative criteria
Strength of equity capital markets franchise:
Demonstrate with credible data and analysis,
including league tables and any other data
which you consider relevant, that you have
sufficient experience of having acted, as CoLead Managers or another non-bookrunning
distribution role, in large and complex
transactions in the recent past. Also
demonstrate that your firm has sufficient
resources and the requisite expertise, both
equity capital markets and Financial Institutions,
to act in such transactions. Refer to Section 5
for detailed guidance in relation to specific
questions. For firms which successfully qualify
for Lot 1 (Bookrunner), the Authority will use
their Lot 1 scores, appropriately moderated to
suit Lot 2 requirements, for the assessment of
this criteria under Lot 2.
Strength of equity trading platform:
Demonstrate with credible data and analysis
that you have a credible platform with
meaningful market positions in trading equities
and equity linked products, particularly in
Financial Institutions. Refer to Section 5 for
detailed guidance in relation to specific
questions.
Strength
of
distribution
platform:
Demonstrate with credible data and analysis,
including external rankings if available, to
demonstrate that you have a platform for the
sales, distribution and research of equity and
equity linked products, particularly in Financial
Institutions. Refer to Section 5 for detailed
guidance in relation to specific questions.
Weighting
Established Framework
mechanism
40%
Scoring 0-100
20%
Scoring 0-100
40%
Scoring 0-100
Tenderers are required to quote their fees as a percentage of the indicated size of the different types of transactions
including an ABB, an FMO, and EQL. Further details are set out in Section 5, Schedule 5.
3.3. Lot 3 – Capital Markets Adviser(s)
For Lot 3, successful Tenderers appointed to the Panel will be determined by their scores on the qualitative criteria as
set out in the table below. Appointment to the Panel for Lot 3 would require the Tenderer to demonstrate a high level
of expertise and proven experience over time in specific areas described in the table below. The evaluation panel will
apply a threshold score of 60% to determine the successful Tenderer(s).
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The evaluation panel will award a score of 0, 20, 40, 60, 80 or 100 (where 100 is the highest score) criteria. This score
will then be compared against the threshold score to determine those who score above the threshold of 60%.
A commercial assessment will only be conducted on the fee quotes submitted by successful Tenderers. Although the
successful Tenderers will not be scored on their fee quotes at this stage, in the event the Authority decides to source
services through this Framework Agreement via a Direct Award, Tenderers who have provided the most competitive
quotes are more likely to be selected. Further details on the assessment framework in the event of a Direct Award are
set out in paragraph 6.7 of Section 1.
3.3.1. Lot 3 evaluation criteria
The technical scoring criteria detailed below will be used in the evaluation process of the Tender Response.
Established Framework
mechanism
Qualitative criteria
Strength of capital markets / retail offering advisory team including
previous experience:
Demonstrate with examples of past transactions and any other data
which you consider relevant, that you have extensive experience of
having acted as a capital markets / retail offering adviser, in large and
complex transactions, particularly in Financial Institutions, in the recent
past. Also demonstrate that your firm has sufficient resources and the
requisite expertise to act in such transactions. Refer to Section 5 for
detailed guidance in relation to specific questions.
Scoring 0-100
3.3.2. Lot 3 Commercial Element
Tenderers are required to quote fees for their services in the context of a capital markets transaction, using an ABB
and an FMO as the two base examples. Specialist retail offering advisers should quote fees separately for a Mass
Direct Retail Offer and an Intermediaries Only Retail Offer. Schedule 5 of Section 5 sets out the information required
for Tenderers’ fees.
3.4. Lot 4 – Financial and/or Strategic Adviser(s)
For Lot 4 successful Tenderers appointed to the Panel will be determined by their scores on the qualitative criteria.
Appointment Panel for Lot 4 would require the Tenderer to demonstrate a very high level of expertise and proven
experience over time in specific outlined in the table below. The evaluation panel will apply a threshold score of 60% to
determine if the Tenderer(s) meet these minimum requriements.
The evaluation panel will award a score of 0, 20, 40, 60, 80 or 100 (where 100 is the highest score) for the three (3)
individual criteria which will then be weighted as specified in the table below. The weighted average score will then be
compared against the threshold score to determine those who score above the 60% threshold.
A commercial assessment will only be conducted on the fee quotes submitted by successful Tenderers. Although the
successful Tenderers will not be scored on their fee quotes at this stage, in the event the Authority decides to source
services through this Framework Agreement via a Direct Award, Tenderers who have provided the most competitive
quotes are more likely to be selected. Further details on the assessment framework in the event of a Direct Award are
set out in paragraph 6.7 of Section 1.
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3.4.1. Lot 4 evaluation criteria
The technical scoring criteria detailed below will be used in the evaluation process of the Tender Response.
Qualitative criteria
Strength
of
previous
experience:
Demonstrate with credible data and analysis,
including league tables and any other data
which you consider relevant, that you have
extensive advisory experience on large and
complex strategic transactions from the recent
past. Also demonstrate that your firm has
sufficient resources and the requisite expertise,
both Financial Institutions advisory and/or equity
capital markets, to advise in formulating the
Authority’s privatisation strategy and/or in
executing a strategic transaction. Refer to
Section 5 for detailed guidance in relation to
specific questions.
Quality of team: Demonstrate with credentials
that your team has the relevant Financial
Institutions advisory and/or equity capital
markets expertise and experience to be able to
advise
on
formulating
the
Authority’s
privatisation strategy and/or in executing a
strategic transaction. Refer to Section 5 for
detailed guidance in relation to specific
questions.
Strength of resources: Demonstrate with
credible data that you have sufficient resources
globally, as appropriate, in the areas of
Financial Institutions advisory and/or equity
capital markets to be able to advise the
Authority. Refer to Section 5 for detailed
guidance in relation to specific questions.
Weighting
Established Framework
mechanism
40%
Scoring 0-100
30%
Scoring 0-100
30%
Scoring 0-100
3.4.2. Commercial Element
Successful Tenderers are required to quote fees under various transaction categories. This information will be used in
the event that the Authority decides to use this Framework Agreement via Direct Award. Schedule 5 in Section 5 sets
out the information required on Tenderers’ fees.
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3.5. Scoring definitions
Scoring Definitions – Individual evaluations and consensus meeting
Assessment
Score
Interpretation
Excellent
100
Good
80
Acceptable
60
Minor
Reservations
40
Serious
Reservations
20
Unacceptable
0
Exceeds the requirement. Exceptional demonstration by the
Tenderer of the relevant ability, understanding, experience,
skills, and resource & quality measures required to provide
the services. Response identifies factors that will offer
potential added value with evidence to support the response.
Satisfies the requirement with minor additional benefits.
Above average demonstration by the Tenderer of the
relevant ability, understanding, experience, skills, resource &
quality measures required to provide the services. Response
identifies factors that will offer potential added value, with
evidence to support the response.
Satisfies the requirement. Demonstration by the Tenderer
of the relevant ability, understanding, experience, skills,
resource, and quality measures required to provide the
services, with evidence to support the response.
Satisfies the requirement with minor reservations. Some
minor reservations of the Tenderer’s relevant ability,
understanding, experience, skills, and resource & quality
measures required to provide the services, with little or no
evidence to support the response.
Satisfies the requirement with major reservations.
Considerable reservations of the Tenderer’s relevant ability,
understanding, experience, skills, resources and quality
measures required to provide the services, with little or no
evidence to support the response.
Does not meet the requirement. Does not comply and/or
insufficient information provided to demonstrate that the
Tenderer has the ability, understanding, experience, skills,
resource & quality measures required to provide the services,
with little or no evidence to support the response.
4. Award of Framework Agreement
4.1. The Authority will inform all Tenderers in writing of any intention to award a Framework Agreement. Subject to
the discretion of the Authority, a Framework Agreement will be formally awarded and sent to the successful
Tenderer(s).
4.2. All unsuccessful Tenderers will be provided with a written debrief at the end of the process notifying them of the
outcome of the evaluation exercise.
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Section 4 - Specification
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TABLE OF CONTENTS
1. Introduction and background
43
2. The Services
43
3. Key requirements for suppliers
44
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1. Introduction and background
1.1. In July 2009, the Authority published its “Strategy for Market Investments and Annual Report and Accounts
2008-09”, which discussed various issues that would be likely to influence the timing of sales of HMG’s
shareholdings in Lloyds and RBS, and also set out some principles which would underpin the approach to sales.
Updates have been published through subsequent Annual Reports and Accounts and a specific section on
“Disposals strategy” was published in the Authority’s “Annual Report and Accounts 2011-12”.
1.2. The Authority believe that now is an appropriate time to establish a new Framework Agreement for Specialist
Financial Services to replace the shortlists established under the 2009 pre-qualification process. This new
Framework will be divided into four (4) specialist service Lots, from which four (4) Panels consisting of
successful Tenderers will be established. It is from these Panels which the Authority would expect to make
appointments to assist it in any future transaction(s) involving HMG’s shareholdings in Lloyds and RBS.
1.3. Tenderers should note that there is no commitment from the Authority to place any minimum amount of work
through the Framework Agreement. The Authority reserves the right to launch a public Tender to source services
outside this Framework Agreement at all times.
2. The Services
The Services which Tenderers may be required to perform fall into four (4) Lots:
2.1. Bookrunner
In the context of a capital markets transaction (e.g. ABB, FMO, Retail Offering, EQL):
2.1.1. Bookrunner(s) to participate in the sale and distribution of securities, including shares and equity linked
products.
The Authority retains the right to appoint one or more Global Coordinators from the Bookrunner Panel at the
time of a transaction.
The Authority also retains the right to appoint one or more Bookrunners as Coordinator in the event of a retail
offering.
2.2. Co-Lead Manager
In the context of a capital markets transaction (e.g. ABB, FMO, Retail Offering, EQL):
2.2.1. Co-Lead Manager or equivalent non-book running distribution role to assist in the sale of distribution of
securities, including shares and equity linked products, which could include specialised distribution.
2.3. Capital Markets Adviser:
In the context of the sale of securities, including capital markets offerings (e.g. ABB, FMO, Retail Offering, EQL):
2.3.1. Adviser to the Authority to achieve optimal execution in any sale process.
2.4. Financial and/or Strategic Adviser:
In the context of formulation of the Authority’s privatisation strategy and/or executing strategic transaction(s):
2.4.1. Adviser to the Authority.
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This role may also include, but is not limited to strategic and corporate finance advisory (e.g. industry expertise,
mergers and acquisition execution, valuation, transaction structuring, capital management and capital structure
advisory).
The Authority expects to appoint up to the following number of suppliers on to the Framework Agreement. The
Authority retains the right to vary the number of suppliers if there is minimal variation in the evaluated scores:
10 (ten) suppliers for Lot 1
20 (twenty) suppliers for Lot 2
10 (ten) suppliers for Lot 3
30 (thirty) suppliers for Lot 4
3. Key requirements for suppliers
3.1.
Technical competence and infrastructure
3.1.1. Professionally qualified, experienced and highly capable staff.
3.1.2. Use of robust, secure and modern infrastructure and market information providers.
3.1.3. Fit for purpose proprietary tools and data.
3.2.
Market practice and transaction advisory
3.2.1. Market specific understanding and expertise.
3.2.2. In depth banking industry knowledge and experience of working in large and complex equity and mergers
and acquisition transactions.
3.2.3. Related business and risk best-practices.
3.3.
Organisation for advisory services
3.3.1. Clear and robust conflict management policies and practices.
3.3.2. Expertise in providing transaction-related advisory services.
3.3.3. Purpose-built team of advisers and infrastructure able to: (i) respond swiftly to deliver high quality products in
accordance with client instructions; and (ii) proactively advise on options, opportunities and risks as they
arise, if required.
3.3.4. Appropriate availability and capability of resources to adequately support the provision of highly specialised
advice and analysis related to complex product types and negotiations.
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Section 5 – The Tenderer's Response
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TABLE OF CONTENTS
1.
Introduction
49
2.
Company details
49
3.
Charges
49
4.
References
49
5.
Draft Framework
49
6.
Proposal
49
7.
Lot 1 – Bookrunner – Tenderer’s Response to the services
50
8.
Lot 2 – Co-Lead Manager - Tenderer’s Response to the services
51
9.
Lot 3 – Capital Markets Advisor - Tenderer’s Response to the services
52
10. Lot 4 – Financial and/or Strategic Advisor- Tenderer’s Response to the services
52
Schedule 1: Form of Tender
57
Schedule 2: Collusive Tendering
59
Schedule 3: Canvassing
61
Schedule 4: Framework Agreement
63
Schedule 5: Charges for the four (4) Lots
65
Schedule 6: Company details
69
Schedule 7: References
71
Schedule 8: Proposed amendments to the Framework Agreement
73
Schedule 9: Expression of Interest
75
Schedule 10: Statement of Compliance
77
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1. Introduction
The Tenderer must complete their Response to the Specification in no more than 15 PowerPoint slides for each Lot, in a
minimum of Arial 10 font including annexes but excluding Schedules. In addition, the Tenderer must complete the
Schedules below.
2. Company details
Please complete Schedule 6 - “Company Details”.
3. Charges
Tenderers for all of the Lots must complete Schedule 5 in this Section with estimated prices for delivery of the scenarios
provided.
Tenderers must provide granularity and transparency of the metrics used for calculating fixed minimum and variable
charges.
The charges must cover all requirements.
All charges must be expressed in pounds sterling and should be exclusive of VAT.
4. References
Tenderers must provide in Schedule 7 details of three customers who they served at any time over the last three years,
from whom the Authority may seek references. The Authority reserves the right to ask for other specific references.
5. Draft Framework
Amendments by Tenderers and/or the Authority to ‘clarify’ the terms of the Framework Agreement are permitted as per
Section 2, paragraph 18. These are not to be viewed as an opportunity to seek wholesale or significant changes to the
terms and conditions of the Framework. The Authority reserves the right to treat unacceptable or significant suggested
amendments as a non-compliant Tender Response. In such circumstances the Authority will clarify with the Tenderer to
either withdraw such proposals or risk disqualification. Should Tenderers wish to suggest amendments to the Framework
Agreement clauses, these should be entered on Schedule 8. The Authority shall make no commitment to act on such
suggestions.
6. Proposal
The Tenderer’s Response to each Lot should be divided into three (3) sections, which are:
1) Response to the Specification, in no more than 15 PowerPoint slides in a minimum of Arial 10 font including
annexes but excluding Schedules;
2) The completion of all schedules in Section 5; and
3) The completion of the Statement of Compliance, Schedule 10.
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7. Lot 1 – Bookrunner – Tenderer’s Response to the services
The Specification for Lot 1 is included in Section 4 of this document and the evaluation of the Tenders will be as set out in
Section 3 of this document.
In order for the Authority to assess each Tender, Tenderers are invited to provide a response to all the requirements
below in no more than 15 Powerpoint slides in a minimum of Arial 10 font including annexes but excluding Schedules for
Lot 1.
7.1 Strength of equity capital markets franchise
7.1.1 Provide examples of your relevant transactions in bookrunning roles, excluding rights issues unless
otherwise specified, in the following categories (since January 2009, but with other relevant information
included at your discretion):
UK equity – all sectors
Financial institutions equity – pan Europe
Financial institutions equity – Global
Financial institutions rights issues – pan Europe
Equity-linked – pan Europe, all sectors
7.1.2 Provide details of your experience executing retail offerings in the UK and pan Europe.
7.1.3 Provide details on the core team members who would work with the Authority, including biographies and
a description of relevant experience as per the bullet points above. This should also include Financial
Institutions industry experts.
7.2 Strength of equity trading platform
7.2.1 Provide information on your equity trading position, including:
7.2.1.1 Trading market shares, using the most objective available data (with a brief discussion on why this is
appropriate), for:

UK all sectors

Lloyds

RBS

Financial institutions – pan Europe

Equity linked – pan Europe
7.3 Strength of distribution platform
7.3.1 Provide information on your distribution resources relevant to the types of capital markets transactions
that we have described above, using third party assessments wherever practical and including:
Generalist sales
Specialist sales
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Equity-linked sales
7.3.2 Provide details of your research capabilities, including a description of your coverage of Lloyds and RBS
as well as European banks more generally, and using third party assessments of capability where
possible.
7.3.3 Any other areas that you think might be helpful to the Authority.
8. Lot 2 – Co-Lead Manager – Tenderer’s Response to the services
The Specification for Lot 2 is included in Section 4 of this document and the evaluation of the Tenders will be as set out in
Section 3 of this document.
In order for the Authority to assess each Tender, Tenderers are invited to respond to all the requirements below in no
more than 15 Powerpoint slides in a minimum of Arial 10 font including annexes but excluding Schedules for Lot 2.
8.1 Strength of equity capital markets franchise
8.1.1 Provide examples of your relevant transactions in Co-Lead Manager or equivalent non-book running
distribution roles in relevant transactions in the following categories (since January 2009, but with other
relevant information included at your discretion):
UK equity – all sectors
Financial institutions equity – pan Europe
Financial institutions equity – Global
Equity-linked – pan Europe, all sectors
8.1.2 Provide details of your experience executing retail offerings in the UK and pan Europe.
8.1.3 Provide details on the core team members who would work with the Authority, including biographies and a
description of relevant experience as per the bullet points above. This should also include Financial
Institutions industry experts.
8.2 Strength of equity trading platform
8.2.1 Provide information of your equity trading position, including trading market shares, using the most objective
available data (with a brief discussion on why this is appropriate), for:
UK all sectors
Lloyds
RBS
Financial institutions – pan Europe
Equity linked – pan Europe
8.3 Strength of distribution platform
8.3.1 Provide information in the following areas:
8.3.1.1 Distribution resources relevant to the types of capital markets transactions that are described above,
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using third party assessments wherever practical and including:

Generalist sales

Specialist sales

Equity-linked sales
8.3.1.2 Description of your research capabilities, including a description of your coverage of Lloyds and RBS
as well as European banks more generally, and using third party assessments of capability where
possible.
8.3.1.3 Any other areas that you think might be helpful to the Authority.
9. Lot 3 – Capital Markets Adviser – Tenderer’s Response to the services
The Specification for Lot 3 is included in Section 4 of this document and the evaluation of the Tenders will be as set out in
Section 3 of this document.
In order for the Authority to assess each Tender, Tenderers are invited to respond to all requirements below in no more
than 15 Powerpoint slides in a minimum of Arial 10 font including annexes but excluding Schedules for Lot 3.
9.1 Strength of capital markets / retail offering advisory team including previous experience
9.1.1 Provide details on the core team members who would work with the Authority, including biographies and a
description of relevant experience.
9.1.2 Provide information in the following areas:
9.1.2.1 List of transactions worked on as capital markets advisor with detailed description of the role played
and, to the extent you could disclose, the objectives and outcomes of each individual assignment;
9.1.2.2 Previous experience in privatisation processes;
9.1.2.3 Previous experience in retail offerings;
9.1.2.4 Any other areas that you think might be helpful to the Authority.
10. Lot 4 – Financial and/or Strategic Advisor – Tenderer’s Response to the
services
The Specification for Lot 4 is included in Section 4 of this document and the evaluation of the Tenders will be as set out in
Section 3 of this document.
In order for the Authority to assess each Tender, Tenderers are invited to respond to all the requirements below in no
more than 15 Powerpoint slides in a minimum of Arial 10 font including annexes but excluding Schedules for Lot 4.
10.1 Strength of previous experience
10.1.1
Provide league table positions of your strategic advisory experience on transactions relevant to the
following categories:
UK – all sectors
Financial Institutions – pan Europe
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Financial institutions – Global
Equity transaction advisory assignments – pan Europe
Privatisation advisory experience, involving Capital Markets transactions – pan Europe
10.1.2
Provide details of significant individual transactions including role, objectives set and achievements.
10.1.3
In no more than one (1) to two (2) of the fifteen (15) PowerPoint slides, provide key considerations in the
context of the privatisation strategy of Lloyds and RBS consistent with the Authority’s institutional
mandate and objectives.
10.2 Quality of team
10.2.1
Provide details on the core team members, including both Financial Institutions industry and capital
markets experts, who would work with the Authority, including biographies and a description of relevant
experience as per the bullet points above.
10.3 Strength of resources
10.3.1
Provide details on the following areas:
Size of Financial Institutions Group (“FIG”) advisory team in your Europe, Middle East and Africa
(“EMEA”) business;
Size of London-based FIG advisory team;
Size of FIG advisory teams in Asia and the US;
Any other areas that you think might be helpful to the Authority.
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Schedules
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Schedule 1: Form of Tender
TO BE COMPLETED BY THE TENDERER
To:
[Tenderer to insert name and address of Authority]
Date:
[Tenderer to insert date]
PROVISION OF: [Tenderer to insert title of requirements from front sheet of ITT]
REFERENCE NUMBER: UKFI 13-06-27
LOTS BID FOR: [Tenderer to Note the Lot number this response covers]
From: [Tenderer to insert name of organisation submitting Tender]
Having examined the Invitation to Tender and all other schedules, and being fully satisfied in all respects with the
requirements of the ITT (including the Conditions of Tender), I/we hereby offer to provide the services as per the
front sheet of the ITT as specified in Section 4 – Specification at the prices shown in the Section 5: Schedule 5 –
Charges for the four (4) Lots for the term of the Framework Agreement and any extension in accordance with the
provisions of the Framework Agreement. If this offer is accepted I/we will execute documents in the form of the
Framework Agreement within 15 days of being called upon to do so.
I/We confirm that I/we agree with the Authority in legally binding terms to comply with the provisions relating to
confidentiality set out in paragraphs 2.1 to 2.4 of the Invitation to Tender.
Signed for and on behalf of the above named Tenderer:
Signature:
......................................................................................................…............
Name:
......................................................................................................…............
Position:
......................................................................................................….............
Date:
......................................................................................................…...............
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Schedule 2: Collusive Tendering
Invitation to Tender for the Provision of Specialist Financial Advice
The essence of the public procurement process is that the Authority shall receive bona fide competitive Tenders
from all Tenderers. In recognition of this principle and in signing Schedule 1: Form of Tender I/we warrant this is a
bona fide Tender, intended to be competitive and that I/we have not fixed or adjusted the amount of the Tender or
the rates and prices quoted by or under or in accordance with any agreement or arrangement with any other party.
I/We also confirm that I/we have not done and undertake that I/we will not do at any time any of the following acts:
Communicate to a party other than the Authority the amount or approximate amount of my/our proposed Tender
(other than in confidence in order to obtain quotations necessary for the preparation of the Tender and/or insurance),
enter into any agreement or arrangement with any other party that he shall refrain from Tendering or as to the
amount of any Tender to be submitted, or offer or agree to pay or give or pay or give any sum of money inducement
or valuable consideration directly or indirectly to any person for doing or having done or causing or having caused
any act or omission to be done in relation to any other Tender or the proposed Tender.
In this Schedule:
the word “person” includes any person, body or association, corporate or incorporate;
the phrase “any agreement or arrangement” includes any transaction, formal or informal whether legally binding or
not.
Signed for and on behalf of the above named Tenderer:
Signature:
......................................................................................................…............
Name:
......................................................................................................…............
Position:
......................................................................................................….............
Date:
......................................................................................................…...............
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Schedule 3: Canvassing
Invitation to Tender for the Provision of Specialist Financial Advice
I/We hereby confirm that I/we have not canvassed any member, officer, employee, or agent of the Authority in
connection with the Framework Agreement and that no person employed by me/us or acting on my/our behalf has
done any such act.
I/We further hereby undertake that I/we will not prior to the conclusion of the Provider selection process canvass or
solicit any member, employee, agent or provider of the Authority in connection with the award of the Framework
Agreement for the services and that no person employed by me/us or acting on my/our behalf will do any such act.
I/We further acknowledge that, should I/we be appointed as the contractor following the conclusion of the Provider
selection process, the Authority will permit me/us to approach the Authority in order the promote the Framework
Agreement.
Signed for and on behalf of the above named Tenderer:
Signature:
......................................................................................................…............
Name:
......................................................................................................…............
Position:
Date:
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Schedule 4: Framework Agreement
1. Introduction
1.1. The overarching Framework Agreement will be between the awarding Authority and successful Provider(s).
The Authority will own the Framework Agreement and manage the day-to-day provision of the services to all
Authority sites and premises.
1.2. Responsibility for strategic management of the Provider, the collection of Management Information relating to
Framework Agreement usage and for all matters relating to the overall performance of the Provider will rest with
the Authority.
2. Draft Framework Agreement
2.1. In the event that the Authority wishes to enter into a Framework Agreement with any Provider(s), that
Framework Agreement will consist of the Framework Agreement version dated 27 June 2013 augmented with
appropriate information submitted in the Provider’s Tender and any amendments thereafter. The information
required to augment the Framework Agreement will largely be drawn from any successful Provider’s Response
to the Specification, Technical Requirements and Charges Schedules. In drafting their Responses to the
Specification, Tenderers must be mindful of this, and should ensure that their Responses are drafted in clear
and concise terms which will provide a basis for translation into firm contractual commitments.
3. Orders and Call-Off Contacts
3.1. Call-Off Contracts as a result of Mini-Competition will be executed by the issue of an Order by the Authority to
the Provider and acceptance by the Provider of such an Order. The Call-Off Contract will be on the terms
specified in Schedule 5 of the Framework Agreement supplemented by such details as price and quantity
specified in the Order.
3.2. The Call-Off Contract terms and conditions are set out in Schedule 5 of the draft Framework Agreement.
3.3. A pro-forma copy of the Order Form is set out in Schedule 4 of the draft Framework Agreement.
3.4. Paragraph 6 in Section 1 of this ITT sets out the criteria for awarding Call-Off Contracts and/or Orders under a
multi Provider Framework Agreement.
4. Orders and Direct Awards
4.1. Call-Off Contracts as a result of a Direct Award will be executed by the issue of an Order by the Authority to the
Provider and acceptance by the Provider of such an Order. The Call-Off Contract will be on the terms specified
in Schedule 5 of the Framework Agreement supplemented by such details as price and quantity specified in the
Order.
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Schedule 5: Charges for the four (4) Lots
1.
Introduction
The fees should be the total chargeable rate to the Authority excluding VAT.
Tenderers are required to submit their proposed fees for the Lot that they are tendering for. Tenderers should use the
tables below as templates for submitting their fees.
Tenderers should also complete sections 6 and 7 below, indicating any discounts or rebates that will be offered.
Charges for Lot 1 – Bookrunner
2.
Tenderers should complete the following table, outlining how much they would charge for the following transaction types
and sizes. These fees should be quoted as a percentage of gross value of transactions and should include both base
fees and performance fee. Detailed criteria relating to performance fees, including performance conditions and the split
between and base fees and performance fees will be agreed at the time of any transaction.
Type
Size of
Transaction
ABB
<£3 billion
ABB
>£3 billion
FMO
<£5 billion
FMO
>£5 billion
EQL
<£2 billion
EQL
>£2 billion
3.
Fee Quoted
Charges for Lot 2 – Co-Lead Manager
Tenderers should quote the minimum fee they would expect to receive for acting in a Co-Lead Manager or equivalent
non-book running distribution role.
4.
Charges for Lot 3 – Capital Markets Adviser
Tenderers must indicate the fees for their services in the context of a capital markets transaction, including for an ABB
and an FMO. Please indicate if, and how, the fees might change if there were a retail component as a part of any
transaction or whether the fees might change with the size of the transaction. Tenderers who would be acting as
specialised advisors on Retail Offerings should quote their fees for a Mass Direct Offer and an Intermediaries Only Offer.
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1: ABB
Fee
Description of changes to
fees if retail component
Description of changes to
fees due to size of
transactions
2: FMO
Fee
Description of changes to
fees if retail component
Description of changes to
fees due to size of
transactions
3: Retail Offerings
Mass Direct Offer
Intermediaries Only Offer
5.
Charges for Lot 4 – Financial and/or Strategic Advisor
Tenderers are required to set out fees for working on various projects, including advice in executing a strategic
transaction involving Lloyds and/or RBS, advice on formulating the Authority’s privatisation strategy and a fairness
opinion.
Project Fee
Advice for Strategic
Transactions
[Percentage of deal size. Please include any sliding scale that would be
applicable]
Advice on formulating the
[Flat fee]
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Authority’s privatisation
strategy
Fairness opinion
6.
[Flat fee]
Discounts
Tenderers should consider whether they wish to propose volume discounts in relation to the services outlined above.
Tenderers should specify from what point the discount will be applied, and how the discount will be calculated.
7.
Retrospective rebates
Tenderers should consider whether they wish to propose retrospective rebates in relation to the services outlined above.
Rebates will be retrospectively applied once specific thresholds have been reached. Tenderers should specify at what
point the rebate will be applied, and the value of rebate proposed.
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Schedule 6: Company details
INFORMATION REQUIRED
RESPONSE
Registered company name
Registered company address
Registered number
Contact name for enquiries related to your Tender
Contact’s company position
Contact’s e-mail address
Contact’s landline telephone number
Contact’s mobile telephone number
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Schedule 7: References
Approval will be obtained from the Tenderers prior to the Authority contacting any of the references provided in this
Schedule. Please ensure these references have been informed and have agreed to provide information in the
event it is requested by the Authority.
REFERENCE 1
INFORMATION REQUIRED
RESPONSE
Name and address of company
Contact name and telephone number
Details of service provided
Value of contract
Duration of contract
Duration of service provided
REFERENCE 2
INFORMATION REQUIRED
RESPONSE
Name and address of company
Contact name and telephone number
Details of service provided
Value of contract
Duration of contract
Duration of service provided
REFERENCE 3
INFORMATION REQUIRED
RESPONSE
Name and address of company
Contact name and telephone number
Details of service provided
Value of contract
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REFERENCE 3
INFORMATION REQUIRED
RESPONSE
Duration of contract
Duration of service provided
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Schedule 8: Proposed amendments to the Framework Agreement
Clause
Number/Schedule
reference
Proposed amendment with revised
wording
Justification for proposed amendment
Other than those provisions identified above, [Tenderer to insert name] confirms that it has reviewed the terms
and conditions of the proposed Framework Agreement and is content with each of their provisions.
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Schedule 9: Expression of Interest
This page must be returned to [email protected] by 10:00 on 1 July 2013.
Name of Tendering Firm
Name of Contact
Position
E-mail Address
Telephone Number
I, representative of ......................[firm] would like to express an interest in the Invitation to Tender for the Authority’s
Specialist Financial Service Framework, reference UKFI 13-06-27.
I understand that I am not obliged to submit a Tender as a result of expressing my interest.
I understand the timetables as set out in paragraph 5 of section 2.
I understand that my expression of interest entitles to me to receive any clarifications raised by other interested parties, as
deemed appropriate by the Authority.
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Schedule 10: Statement of Compliance
Invitation to Tender for the Provision of Specialist Financial Advice
Tenderers to Note:
The following Statement of Compliance provides Tenderers with a list of the key areas within their Response that
must be addressed. Tenderers shall ensure that their overall Response includes evidence of providing/addressing
all of these areas. Tenderers must ensure that a yes response is given against each area and the table of
Schedules. In the event that a Tenderer is unable to provide a yes response, the Tenderer shall provide a detailed
reason as to why a response cannot be given. The Authority may seek to clarify Responses given by a Tenderer
but reserves the right to reject any Tender Response, which fails to meet this initial compliance check.
The Tenderer’s Response to the ITT should be divided into the following three sections:
1)
Response to the Specification, in no more than 15 PowerPoint slides in a minimum of Arial 10 font including
annexes but excluding Schedules;
2)
The completion of all Schedules below; and
3)
The completion of the Statement of Compliance.
PAGE 77 OF 80
JUNE 2013
UKFI FRAMEWORK ITT
UKFI
1.0
UKFI 13-06-27 – Invitation to Tender
Statement of Compliance
Provided in
Response
(Yes/No)
DOCUMENT REQUIRED
TENDERERS RESPONSE TO THE SERVICES
SCHEDULE ONE: FORM OF TENDER
SCHEDULE TWO: COLLUSIVE TENDERING
SCHEDULE THREE: CANVASSING
SCHEDULE FOUR: FRAMEWORK AGREEMENT
SCHEDULE FIVE: CHARGES FOR THE FOUR (4) LOTS
SCHEDULE SIX: COMPANY DETAILS
SCHEDULE SEVEN: REFERENCES
SCHEDULE TEN: STATEMENT OF COMPLIANCE
In compliance with the requirements set out in your Invitation to Tender:
I confirm I have read and fully understand the potential;
I have completed and enclose the above documents;
This Tender shall remain open for acceptance by the Authority for a period of 90 days as set out in Section 2,
paragraph 4.1 after the due date for return of Tenders specified in the Invitation to Tender;
I warrant that I have all the requisite corporate authority to sign this Tender.
Signed for and on behalf of the Tenderer:
Name:
Signature:
Position:
Date
PAGE 78 OF 80
JUNE 2013
UKFI FRAMEWORK ITT
UKFI
1.0
UKFI 13-06-27 – Invitation to Tender
Appendix 1 - Glossary
“Unless the context otherwise requires, the following words and expressions used within this Invitation to Tender
shall have the following meanings:”
TERM
“ABB”
“Authority”
“Call-Off Contract”
“Commencement Date”
“Conditions of Tender” or
“Conditions”
“Contracting Body”
“Deadline”
“Direct Award”
“EMEA”
"EIR"
“EQL”
“Extension Period”
“FIG”
“FMO”
“FoIA”
“Framework” or
“Framework Agreement”
“Initial Term”
“Invitation to Tender” or
“ITT”
“Law”
“Lot”
“Mini-Competition”
“Order Form”
“Other Contracting
Bodies”
“Panel”
PAGE 79 OF 80
MEANING
means Accelerated Bookbuild
means United Kingdom Financial Investments Ltd (UKFI)
means the document set out in Schedule 4 of the draft Framework
Agreement
means the starting date of the Framework Agreement
means the terms and conditions set out in the attachment to this ITT relating
to the submission of a Tender
means the Authority
means the Deadline for receipt by the Authority of electronic copy (in PDF)
and ten (10) hard copy responses to the ITT to the e-mail address and postal
address provided in paragraph 1.1 of Section 2
means the award of a Call-Off Contract by application of the terms laid down
in the Framework Agreement without re-opening competiton
means Europe, Middle East and Africa
mean the Environmental Information Regulations 2004 together with any
guidance and/or codes of practice issued by the Information Commissioner
or relevant Government department in relation to such regulations
means Equity Linked structured products
means one (1) year
means Financial Institutions Group
means a Fully Marketed Offering
means the Freedom of Information Act 2000 and any subordinate legislation
made under such Act 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 legislation
means this agreement and all Schedules to this agreement to be entered by
the Authority and the Provider(s) following any award under the procurement
exercise
means five (5) from the Commencement Date
means this Invitation to Tender documentation and all related documents
published by the Authority and made available to Tenderers
means any applicable law, common law, Act of Parliament, subordinate
legislation within the meaning of Section 21(1) of the Interpretation Act 1978,
exercise of the royal prerogative, enforceable community right within the
meaning of Section 2 of the European Communities Act 1972, regulatory
policy, guidance or industry code, judgment of a relevant court of law, or
directives or requirements of any Regulatory Body
means a discrete sub-division of the service requirements
means the award of a Call-Off Contract by re-opening competiton between
the Providers of the relevant Panel appointed to the Framework Agreement
means a document setting out details of an order for services served by the
Contracting Body on the Provider
means all Contracting Bodies except the Authority
means the lists of successful Tenderers from which the Authority would
JUNE 2013
UKFI FRAMEWORK ITT
UKFI
1.0
UKFI 13-06-27 – Invitation to Tender
“Provider”
“Regulations”
“Specification”
“Tender”, “Response”,
“Tender Response”,
“Tendered Response” or
“ITT Response”
“Tenderer(s)”
PAGE 80 OF 80
JUNE 2013
expect to make appointments to assist it in any future transaction(s) involving
HMG’s shareholdings in Lloyds and RBS
means the organisation(s) admitted to the Framework Agreement
means the Public Contracts Regulations 2006
means the minimum requirements for an organisation to be invited to Tender
in this procurement process
means the Tenderer’s formal offer in response to this Invitation to Tender
means the organisation(s) being invited to respond to this Invitation to
Tender
UKFI FRAMEWORK ITT
UKFI
1.0
DATED 27 June 2013
(1) UNITED KINGDOM FINANCIAL INVESTMENTS LIMITED
AND
(2) ............................
Invitation to
Tender
27 June 2013
Framework Agreement Terms
and Conditions
UKFI
Page 1 of 74
Invitation to
Tender
27 June 2013
Framework Agreement Terms
and Conditions
UKFI
Page 2 of 74
CONTENTS
1.
INTERPRETATION
5
2.
STATEMENT OF INTENT
9
3.
TERM OF FRAMEWORK AGREEMENT
9
4.
SCOPE OF FRAMEWORK AGREEMENT
10
5.
PROVIDER'S APPOINTMENT
10
6.
NON-EXCLUSIVITY
10
7.
AWARD PROCEDURES
10
8.
WARRANTIES AND REPRESENTATIONS
13
9.
CORRUPT GIFTS AND PAYMENTS OF COMMISSION
14
10.
CONFLICTS OF INTEREST
14
11.
SAFEGUARD AGAINST FRAUD
15
12.
CALL-OFF CONTRACT PERFORMANCE
15
13.
PRICES FOR SERVICES
15
14.
STATUTORY REQUIREMENTS
16
15.
NON-DISCRIMINATION
16
16.
RECORDS AND AUDIT ACCESS
16
17.
CONFIDENTIALITY
17
18.
OFFICIAL SECRETS ACTS
19
19.
DATA PROTECTION
19
20.
FREEDOM OF INFORMATION
19
21.
PUBLICITY
20
22.
TERMINATION
20
23.
SUSPENSION OF PROVIDER'S APPOINTMENT
22
24.
CONSEQUENCES OF TERMINATION AND EXPIRY
22
25.
LIABILITY
22
26.
INSURANCE
23
27.
TRANSFER AND SUB-CONTRACTING
24
28.
VARIATIONS TO THE FRAMEWORK AGREEMENT
24
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Tender
27 June 2013
Framework Agreement Terms
and Conditions
UKFI
Page 3 of 74
29.
RIGHTS OF THIRD PARTIES
24
30.
SEVERABILITY
24
31.
CUMULATIVE REMEDIES
25
32.
WAIVER
25
33.
ENTIRE AGREEMENT
25
34.
NOTICES
25
35.
COMPLAINTS HANDLING AND RESOLUTION
26
36.
DISPUTE RESOLUTION
26
37.
COUNTERPARTS
27
38.
LAW AND JURISDICTION
27
SCHEDULE ONE: SERVICES AND LOTS
30
SCHEDULE TWO: AWARD CRITERIA
31
SCHEDULE THREE: PRICING
34
SCHEDULE FOUR: ORDER FORM
36
SCHEDULE FIVE: CALL-OFF TERMS AND CONDITIONS
41
SCHEDULE SIX: COMMERCIALLY SENSITIVE INFORMATION
73
SCHEDULE SEVEN: FRAMEWORK AGREEMENT VARIATION PROCEDURE
74
Invitation to
Tender
27 June 2013
Framework Agreement Terms
and Conditions
UKFI
Page 4 of 74
THIS AGREEMENT is made on ..........................
BETWEEN:(1)
United Kingdom Financial Investments Limited (“UKFI”) whose principal place of business is
at 100 Parliament Street, SW1A 2BQ (the "Authority"); and
(2)
.........................................................
................................................. (the "Provider").
BACKGROUND
whose
registered
address
is
at
(A)
The Authority invited potential Providers (including the Provider) on 27 June 2013 to tender
for the provision of Specialist Financial Services.
(B)
The Provider submitted a tender on ..........................
(C)
On the basis of the Provider's tender, the Authority selected the Provider to enter a
Framework Agreement to provide services to the Authority on a Call-Off basis in accordance
with this Framework Agreement.
(D)
This Framework Agreement sets out the award and ordering procedure for services which
may be required by the Authority, the main terms and conditions for any Call-Off Contract
which the Authority may conclude, and the obligations of the Provider during and after the
term of this Framework Agreement.
(E)
The Parties acknowledge that there will be no obligation for the Authority to award any
orders under this Framework Agreement during its Term.
IT IS AGREED as follows:
1.
INTERPRETATION
1.1
Unless the context otherwise requires, the following words and expressions shall have the
following meanings:
"Approval"
means the prior written approval of the Authority
"Auditor"
means the National Audit Office or an auditor appointed by the Audit
Commission as the context requires
"Call-Off Contract"
means the legally binding agreement (made pursuant to the provisions of
this Framework Agreement) for the provision of Services made between the
Authority and the Provider comprising an Order Form and the Call-Off
Terms and Conditions
"Call-Off Terms and
Conditions"
means the terms and conditions in Schedule 5
"Commencement Date"
means the date set out in the Order Form
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Tender
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and Conditions
UKFI
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"Commercially Sensitive
Information"
means any Confidential Information comprised of information:
(a)
which is provided in writing by the Provider to the Authority in
confidence and designated as Commercially Sensitive
Information; and/or
(b)
that constitutes a trade secret of the Provider
"Competed Services Award
Criteria"
means the award criteria to be applied to tenders received through MiniCompetitions held for the award of Call-Off Contracts for Services, as set
out in Schedule 2
“Complaint"
means any formal complaint raised by the Authority in relation to the
performance of the Framework Agreement or any Call-Off Contract in
accordance with Clause 35
“Conditions”
means the terms and conditions set down in the Call-Off Contract
"Confidential Information"
means:(a)
any information which has been designated as confidential by a
Party in writing to the other Party or that ought to be considered
as confidential (however it is conveyed or on whatever media it is
stored) including information which would or would be likely to
prejudice the commercial interests of any person, trade secrets,
Intellectual Property Rights, know-how of either Party; and
(b)
the Commercially Sensitive Information
but shall not include information which (i) was public at the time of
disclosure (otherwise than by a breach of confidentiality owed by the
receiving Party to the disclosing Party), (ii) was lawfully in the possession of
the receiving Party, without restriction as to its disclosure, before receiving it
from the disclosing Party (and the recipient is able to provide evidence of
such possession), (iii) is received from a third party (who lawfully acquired it)
without restriction as to its disclosure or (iv) is independently developed
without access to the Confidential Information.
“Contracting Authority”
means the Authority
"DPA"
means the Data Protection Act 1998 and any subordinate legislation made
under such Act 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 legislation
"Environmental
Information Regulations"
mean the Environmental Information Regulations 2004 together with any
guidance and/or codes of practice issued by the Information Commissioner
or relevant Government department in relation to such regulations
"FOIA"
means the Freedom of Information Act 2000 and any subordinate legislation
made under such Act 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 legislation
"Framework Agreement"
means this agreement and all Schedules to this agreement
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Tender
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and Conditions
UKFI
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"Framework Agreement
Variation Procedure"
means the procedure set out in Schedule 8 of Section 5 of the ITT
"Fraud"
means any offence under Laws creating offences in respect of fraudulent
acts or at common law in respect of fraudulent acts in relation to the
Framework Agreement or defrauding or attempting to defraud or conspiring
to defraud the Authority
"Good Industry Practice"
means standards, practices, methods and procedures conforming to the
Law and the degree of skill and care, diligence, prudence and foresight
which would reasonably and ordinarily be expected from a skilled and
experienced person or body engaged in a similar type of undertaking under
the same or similar circumstances
"Guidance"
means any guidance issued or updated by the UK Government from time to
time in relation to the Regulations
"Information"
has the meaning given under Section 84 of the Freedom of Information
Act 2000
"Intellectual Property
Rights"
means patents, inventions, trademarks, service marks, logos, design rights
(whether registrable or otherwise), applications for any of the foregoing,
copyright, database rights, domain names, trade or business names, moral
rights and other similar rights or obligations whether registrable or not in any
country (including but not limited to the United Kingdom) and the right to sue
for passing off
"ITT"
means the invitation to tender issued by the Authority on 27 June 2013
"Law"
means any applicable law, common law, Act of Parliament, subordinate
legislation within the meaning of Section 21(1) of the Interpretation Act
1978, exercise of the royal prerogative, enforceable community right within
the meaning of Section 2 of the European Communities Act 1972,
regulatory policy, guidance or industry code, judgment of a relevant court of
law, or directives or requirements of any Regulatory Body
"Material Default"
means any material breach of; Clause 7 (Award Procedures), Clause 8
(Warranties and Representations), Clause 9 (Corrupt Gifts and Payments of
Commission), Clause 10 (Conflicts of Interest), Clause 11 (Safeguard
Against Fraud), Clause 12 (Call-Off Contract Performance), Clause 14
(Statutory Requirements), Clause 15 (Non-Discrimination), Clause 16
(Records and Audit Access), Clause 18 (Confidentiality), Clause 18 (Official
Secrets Act), Clause 19 (Data Protection), Clause 20 (Freedom of
Information), Clause 21 (Publicity), Clause 26 (Insurance) and Clause 27
(Transfer and Sub-Contracting)
"Month"
means a calendar month
"Notice"
means the contract notice UKFI 13-06-27 on 27 June 2013 published on
Contracts Finder https://online.contractsfinder.businesslink.gov.uk/
and UKFI’s official website www.ukfi.co.uk
"Order"
means an order for Services served by the Authority on the Provider in
accordance with the Ordering Procedures
"Order Form"
means a document setting out details of an Order in the form set out in
Schedule 4
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Tender
27 June 2013
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and Conditions
UKFI
Page 7 of 74
"Ordering Procedures"
means the ordering and award procedures specified in Clause 7
"Parent Company"
means any company which is the ultimate Holding Company of the Provider
and which is either responsible directly or indirectly for the business
activities of the Provider or which is engaged in the same or similar
business to the Provider. The term "Holding Company" shall have the
meaning ascribed by Section 1162 of the Companies Act 2006 or any
statutory re-enactment or amendment thereto
"Party"
means the Authority and/or the Provider (and “Parties” shall be construed
accordingly)
"Pricing Matrices"
means the pricing matrices set out in Schedule 3
"Regulations"
means the Public Contracts Regulations 2006
"Regulatory Bodies"
means those government departments and regulatory, statutory and other
entities, committees, ombudsmen 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 this Framework Agreement
or any other affairs of the Authority
"Requests for Information"
means a request for information or an apparent request under the FOIA or
the Environmental Information Regulations
"Services"
means the services detailed in Schedule 1
"Services Framework
Providers"
means the providers appointed as services framework providers under a
framework agreement pursuant to the ITT
"Staff"
means all persons employed by the Provider, the Provider’s Parent
Company or any subsidiary, branch or affiliate of the Provider’s Parent
Company and who are involved in the performance of this Framework
Agreement or any Call Off Contract
"Tender"
means the tender submitted by the Provider to the Authority on 27 June
2013
"Working Days"
means any day other than a Saturday, Sunday or public holiday in England
and Wales
“Working Hours”
means 9.00am to 5.00pm on a Working Day
"Year"
means a calendar year
1.2
The interpretation and construction of this Framework Agreement shall all be subject to the
following provisions:1.2.1
words importing the singular meaning include where the context so admits the
plural meaning and vice versa;
1.2.2
words importing the masculine include the feminine and the neuter;
1.2.3
the words "include", "includes" and "including" are to be construed as if they were
immediately followed by the words "without limitation";
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Tender
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and Conditions
UKFI
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1.2.4
references 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;
1.2.5
references 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 amended by any subsequent enactment, modification, order,
regulation or instrument as subsequently amended or re-enacted;
1.2.6
headings are included in this Framework Agreement for ease of reference only
and shall not affect the interpretation or construction of this Framework
Agreement;
1.2.7
the Schedules form part of this Framework Agreement and shall have effect as if
set out in full in the body of this Framework Agreement. Any reference to this
Framework Agreement includes the Schedules;
1.2.8
references in this Framework Agreement to any Clause or Sub-Clause or
Schedule without further designation shall be construed as a reference to the
Clause or Sub-Clause or Schedule to this Framework Agreement so numbered;
1.2.9
references in this Framework Agreement to any paragraph or sub-paragraph
without further designation shall be construed as a reference to the paragraph or
sub-paragraph of the relevant Schedule to this Framework Agreement so
numbered;
1.2.10
reference to a Clause is a reference to the whole of that clause unless stated
otherwise; and
1.2.11
in the event and to the extent only of any conflict between the Clauses and the
remainder of the Schedules, the Clauses shall prevail over the remainder of the
Schedules.
2.
STATEMENT OF INTENT
2.1
In delivering the Services, the Provider shall operate at all times in accordance with any and
all of the Authority's published objectives in relation to the Services and in accordance with
the following objectives and statement of intent:2.1.1
the Provider has been appointed and the Authority has entered into this
Framework Agreement on the basis of the Provider's response to the ITT and, in
particular, the representations made by the Provider to the Authority in relation to
its competence, professionalism and ability to provide the Services in an efficient
and cost effective manner.
2.2
Clause 2 is an introduction to this Framework Agreement and does not expand the scope of
the Parties' obligations or alter the plain meaning of the terms and conditions of this
Framework Agreement, except and to the extent that those terms and conditions do not
address a particular circumstance, or are otherwise ambiguous, in which case those terms
and conditions are to be interpreted and construed so as to give full effect to Clause 2.
3.
TERM OF FRAMEWORK AGREEMENT
3.1
The Framework Agreement shall take effect on the Commencement Date and shall expire
either:
3.1.1
Invitation to
Tender
Five (5) years after the Commencement Date (the period between the
Commencement Date and this date shall be known as the "Initial Term"); or
27 June 2013
Framework Agreement Terms
and Conditions
UKFI
Page 9 of 74
3.1.2
if the Authority elects to extend the Initial Term in accordance with Clause 3.2, at
the end of the applicable Extension Period;
in each case, unless it is terminated earlier in accordance with the terms of this Framework
Agreement or otherwise by operation of Law ("Term").
3.2
The Authority may extend the duration of this Framework Agreement for a period of one
year ("Extension Period") from the expiry of the Initial Term by giving the Provider not less
than one month’s written notice prior to the end of the Initial Term. The Authority may
exercise two such Extension Periods
4.
SCOPE OF FRAMEWORK AGREEMENT
4.1
This Framework Agreement governs the relationship between the Authority and the Provider
in respect of the provision of the Services by the Provider to the Authority and to Other
Contracting Bodies.
4.2
The Authority may at its absolute discretion and from time to time order Services from the
Provider in accordance with the Ordering Procedure during the Term. If there is a conflict
between Clause 7 and the Regulations and the Guidance, the Authority shall comply with
the Regulations and the Guidance.
4.3
The Provider acknowledges that there is no obligation for the Authority to purchase any
Services from the Provider nor for the Provider to tender for or provide any such Services
during the Term. The Authority acknowledges that there is no obligation for the Provider to
provide any Services to the Authority under the Framework Agreement unless and until the
Provider notifies the Authority that it accepts the Order as contemplated by Clause 7.9.2
below.
4.4
No undertaking or any form of statement, promise, representation or obligation shall be
deemed to have been made by the Authority in respect of the total quantities or values of
the Services to be ordered by it pursuant to this Framework Agreement and the Provider
acknowledges and agrees that it has not entered into this Framework Agreement on the
basis of any such undertaking, statement, promise or representation.
5.
PROVIDER'S APPOINTMENT
The Authority appoints the Provider as a potential provider of the Services and the Provider
shall be eligible to be considered for the award of Orders for such Services by the Authority
during the Term.
6.
NON-EXCLUSIVITY
The Provider acknowledges that, in entering this Framework Agreement, no form of
exclusivity or volume guarantee has been granted by the Authority for Services from the
Provider and that the Authority is at all times entitled to enter into other contracts and
arrangements with other providers for the provision of any or all services which are the
same as or similar to the Services. The Authority acknowledges that, in entering into this
Framework Agreement, no form of exclusivity or volume guarantee is being given by the
Provider in relation to the actual or potential provision of Services and that the Provider is at
all times entitled to enter into other contracts and arrangements with other third parties for
the provision of any or all services which are the same as or similar to the Services, subject
to the operation of the remaining provisions of this Framework Agreement including without
limitation Clause 10.
7.
AWARD PROCEDURES
Awards under the Framework Agreement
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and Conditions
UKFI
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7.1
In the event that the Authority decides to use this multi Provider Framework Agreement to
source services it is expected that this will be conducted through a Mini-Competition
between all Providers of the relevant Panel. However, in transactions which require
commercial confidentiality, including capital markets transactions, it will be critical for the
Authority to maintain secrecy of the selection process to minimise the risk of leaks to the
market and thereby any price impact. Therefore, in relation to any such transactions the
Authority would be likely to use a Direct Award to award a Contract(s) at the appropriate
time.
7.2
In a Mini-Competition, a Call-Off Contract(s) will be awarded to the highest scoring
Provider(s) from the Panel qualified to the deliver the particular services required for the
specific transaction. The process is explained in more detail below.
A Mini-Competition will involve inviting Tenders and requesting “sealed bids” from all the
Providers on the relevant Panel, requesting, for example,
7.2.1
particular delivery timescales;
7.2.2
additional security needs;
7.2.3
particular mixes of quality systems and rates;
7.2.4
particular mixes of rates and quality;
7.2.5
where the terms include a price mechanism;
7.2.6
individual special terms (e.g. specific to the particular services that will be provided
to meet a particular requirement).
7.3
In addition to the requirements set out in clause 6.3 above, in a Mini-Competition Providers
will be asked to submit information in response to both qualitative and commercial criteria
relating to the transaction in question. The Order Form will specify these criteria and how
they will be assessed and weighted. This will form the basis for scoring the Responses. The
highest scoring Provider(s) will be awarded the Call-Off Contract under the MiniCompetition.
7.4
The Call-Off Contract(s) as a result of a Mini-Competition will be formed by the issue of an
Order Form by the Authority to the Provider and acceptance by the Provider of such an
Order. The Call-Off Contract will be on such terms as specified in the Framework
Agreement (Section 5, Schedule 4), supplemented as appropriate by other details which will
be specified in the Order.
7.5
In the event that the Authority awards a Contract(s) via a Direct Award, the Authority will
select the Provider(s) with the highest score as determined by the criteria outlined in the
table below. If no Contract is reached with the selected Provider(s), the Authority will pass
the opportunity onto the next highest scoring Provider(s).
7.6
Direct Awards will be granted based on an assessment as set out in the following table in
the event that the Authority decides to use this multi Provider Framework Agreement to
source services:
Pass / Fail criteria
Any actual, potential and perceived
conflicts of interest and how these will be
managed
Invitation to
Tender
27 June 2013
Pass/Fail
Framework Agreement Terms
and Conditions
If this question cannot be
addressed to the satisfaction
of the Authority, the
Tenderer will fail to meet this
requirement
UKFI
Page 11 of 74
Weighting
7.7
Qualitative criteria
Scores achieved on qualitative criteria
most relevant to the specific transaction in
question. For this scoring, the initial
response to the ITT will be subject to
moderation evidenced by any information
subsequently gathered by the Authority
which
indicates
a
change
in
circumstances.
Examples
of
such
changes could include but are not limited
to key personnel changes, or structural
changes resulting from acquisitions or
disposals. This assessment may also
include evidence obtained in any
Contracts(s) that have previously been
awarded by the Authority to the Provider
Evidence of high quality of insight on the
Authority’s shareholdings and/or mandate
through active engagement with the
Authority; such as views on Lloyds’ and
RBS’ value prospects, investors feedback,
insight into evolving debt and equity
market conditions, updates on regulatory
developments in the financial sector
50%
Commercial criteria
The fees quoted in the original Tender for
the transaction which is most closely
associated to the specific transaction, and
the proposed commercial terms around
the time of this Direct Award
50%
Established Framework
mechanism
25%
Scoring 0-100
25%
Scoring 0-100
50%
Scoring 0-100
Directly Awarded Call-Off Contract(s) will be formed by the issue of an Order Form by the
Authority to the Provider and acceptance by the Provider of such an Order. Call-Off
Contract(s) will be on the terms specified in the Framework Agreement in Schedule 4 of
Section 5, supplemented as appropriate by other details which will be specified in the Order
Form.
Form of Order
7.8
Subject to Clauses 7.1 to 7.7 above, the Authority may place an Order with the Provider by
serving an order in writing in substantially the form set out in Schedule 4 of Section 5 of this
ITT or such similar or analogous form agreed with the Provider including systems of
ordering involving facsimile, electronic mail or other on-line solutions. The Parties agree that
any document or communication (including any document or communication in the apparent
form of an Order) which is not in the form prescribed by this Clause 7.8 shall not constitute
an Order under this Framework Agreement.
Accepting and Declining Orders
7.9
Following receipt of an Order, the Provider shall promptly and in any event within a
reasonable period (taking into account all relevant circumstances in relation to the subject
matter and nature of an Order) determined by the Authority and notified to the Provider in
writing at the same time as the submission of the Order (which in any event shall not exceed
five (5) Working Days) acknowledge receipt of the Order and either:
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and Conditions
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7.10
7.9.1
notify the Authority that it declines to accept the Order (and provide reasons for the
same); or
7.9.2
notify the Authority that it accepts the Order by signing and returning the Order
Form.
If the Provider:
7.10.1
notifies the Authority that it declines to accept an Order; or
7.10.2
the time-limit referred to in Clause 7.9 has expired;
then the offer from the Authority to the Provider shall lapse and the Authority may offer that
Order to the Services Framework Provider that submitted the next most economically
advantageous tender in accordance with the relevant Award Criteria.
7.11
The Provider in agreeing to accept such an Order pursuant to Clause 7.8 above shall enter
a Call-Off Contract with the Authority for the provision of Services referred to in that Order. A
Call-Off Contract shall be formed on the Authority’s receipt of the signed Order Form
provided by the Provider (or such similar or analogous form agreed with the Provider)
pursuant to Clause 7.8.
8.
WARRANTIES AND REPRESENTATIONS
8.1
The Provider warrants and represents to the Authority that to the best of its knowledge:8.1.1
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 to
perform its obligations under this Framework Agreement;
8.1.2
this Framework Agreement is executed by a duly authorised representative of the
Provider;
8.1.3
in entering into this Framework Agreement it has not committed any Fraud;
8.1.4
as at the Commencement Date, all information, statements and representations
contained in the Tender (including statements made in relation to the categories
referred to in Regulations 23, 24 and 25 of the Regulations) for the Services are
true, accurate and not misleading save as may have been specifically disclosed in
writing to the Authority prior to the execution of this Framework Agreement and it
will promptly advise the Authority of any fact, matter or circumstance of which it
may become aware which would render any such information, statement or
representation to be false or misleading;
8.1.5
it has not entered into any agreement with any other person with the aim of
preventing tenders being made or as to the fixing or adjusting of the amount of any
tender or the conditions on which any tender is made in respect of the Framework
Agreement;
8.1.6
it has not caused or induced any person to enter such agreement referred to in
Clause 8.1.5 above;
8.1.7
it has not offered or agreed to pay or give any sum of money, inducement or
valuable consideration directly or indirectly to any person for doing or having done
or causing or having caused to be done any act or omission in relation to any other
tender or proposed tender for Services under the Framework Agreement;
8.1.8
it has not committed any offence under the Prevention of Corruption Acts 1889 to
1916;
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8.1.9
it is not subject to any contractual obligation, compliance with which is likely to
have an effect on its ability to perform its obligations under this Framework
Agreement entered into with the Authority;
8.1.10
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 Provider 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 Provider's assets
or revenue; and
8.1.11
in the three (3) years prior to the date of this Framework Agreement:(a)
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;
(b)
it has not performed any act or omission with respect to its financial
accounting or reporting which could have a material adverse effect on
the Provider's position as an ongoing business concern or its ability to
fulfil its obligations under this Framework Agreement.
9.
CORRUPT GIFTS AND PAYMENTS OF COMMISSION
9.1
The Provider shall not offer or give, or agree to give, to any employee, agent, servant or
representative of the Authority or person employed by or on behalf of the Authority any gift
or consideration of any kind which could act as an inducement or reward for doing,
refraining from doing, or for having done or refrained from doing, any act in relation to this
Framework Agreement, any Call-Off Contract or any other contract with the Authority or
person employed by or on behalf of the Authority (including its award to the Provider,
execution or any rights and obligations contained in it), or for showing or refraining from
showing favour or disfavour to any person in relation to any such contract. The attention of
the Provider is drawn to the criminal offences under the Prevention of Corruption Acts 1889
to 1916.
9.2
The Provider warrants that it has not paid commission nor agreed to pay any commission to
the Authority or any person employed by or on behalf of the Authority in connection with this
Framework Agreement, any Call-Off Contract or any other contract with the Authority or
person employed by or on behalf of the Authority.
If the Provider, its Staff or any person acting on the Provider's behalf, engages in conduct
prohibited by Clauses 9.1 or 9.2 above or commits any offence under the Prevention of
Corruption Acts 1889 to 1916 the Authority may terminate the Framework Agreement with
immediate effect by giving notice in writing to the Provider.
10.
CONFLICTS OF INTEREST
10.1
The Provider will maintain and operate effective organisational and administrative
arrangements to ensure that neither the Provider nor any Staff are placed in a position
where (in the reasonable opinion of the Authority) there is or may be an actual conflict, or a
potential conflict, between the pecuniary or personal interests of the Provider or Staff and
the duties owed to the Authority which will, or could, give rise to a material risk of damage to
the interests of the Authority under the provisions of this Framework Agreement or any CallOff Contract.
10.2
If arrangements made by the Provider to manage conflicts of interest in accordance with
Clause 10.1 above are not sufficient to ensure, with reasonable confidence, that risks of
damage to the interests of the Authority will be prevented, the Provider will immediately:
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10.2.1
notify the Authority; and
10.2.2
provide full particulars of the conflict; or
10.2.3
where full particulars cannot be provided owing to confidentiality obligations to
third parties, the Provider agrees to:
(a)
clearly disclose the general nature and/or sources of conflicts of interest
to the Authority;
(b)
include sufficient detail to enable the Authority to take an informed
decision with respect to the Services in the context of which the conflict
of interest arises; and
(c)
provide all such further information and assistance as may be reasonably
required by the Authority in forming its determination in accordance with
(b) above
10.3
for the avoidance of doubt, the obligations to notify contained in this Clause 10.2 are
continuing and the Provider agrees to notify the Authority on each occasion when a situation
referred to in Clause 10.1 arises. The Authority reserves the right to terminate this
Framework Agreement immediately by giving notice in writing to the Provider and/or to take
such other steps it deems necessary where, in the reasonable opinion of the Authority, there
has been (or there is a risk that there may be) a breach of any of the provisions relating to
conflicts of interest set out in any Call-Off Contract. The action of the Authority pursuant to
this Clause shall not prejudice or affect any right of action or remedy which shall have
accrued or shall thereafter accrue to the Authority.
10.4
This Clause shall apply during the Term and during the period of any Call-Off Contract.
11.
SAFEGUARD AGAINST FRAUD
The Provider shall take all reasonable steps in accordance with Good Industry Practice, to
prevent Fraud by Provider Personnel and the Provider (including its shareholders, members
and directors) in connection with the receipt of monies from the Authority. The Provider shall
notify the Authority immediately if it has reason to suspect that any Fraud has occurred or is
occurring or is likely to occur.
12.
CALL-OFF CONTRACT PERFORMANCE
12.1
The Provider shall perform all Call-Off Contracts entered into with the Authority in
accordance with:12.1.1
the requirements of this Framework Agreement; and
12.1.2
the terms and conditions of the respective Call-Off Contracts.
12.2
In the event of, and only to the extent of, any conflict between the terms and conditions of
this Framework Agreement and the terms and conditions of a Call-Off Contract, the terms
and conditions of this Framework Agreement shall prevail.
13.
PRICES FOR SERVICES
13.1
Whether the services are awarded via a Mini-Competition or a Direct Award, the Call-Off
Contract price shall be agreed between the Authority and the Provider for that particular
Order.
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14.
STATUTORY REQUIREMENTS
The Provider shall be responsible for obtaining all licences, authorisations, consents or
permits required by the Provider in relation to the performance of this Framework
Agreement and any Call-Off Contract.
15.
NON-DISCRIMINATION
15.1
The Provider shall not unlawfully discriminate within the meaning and scope of any
applicable law, enactment, order or regulation relating to discrimination (whether in age,
race, gender, religion, disability, sexual orientation or otherwise).
15.2
The Provider shall take all reasonable steps to secure the observance of Clause 15.1 by all
servants, employees or agents of the Provider employed in the performance of the Services.
16.
RECORDS AND AUDIT ACCESS
16.1
The Provider shall keep and maintain until six (6) years after the date of termination or
expiry (whichever is the earlier) of this Framework Agreement (or as long a period as may
be agreed between the Parties), full and accurate records and accounts of the operation of
this Framework Agreement including the Services provided under it, the Call-Off Contracts
entered into with the Authority and the amounts paid by the Authority.
16.2
The Provider shall keep the records and accounts referred to in Clause 16.1 above in
accordance with Good Industry Practice.
16.3
The Provider shall to the extent legally permissible and/or to the extent that such access will
not breach any undertaking of confidentiality to a third party afford the Authority and/or the
Auditor on reasonable notice such access to such records and accounts as may be
reasonably required from time to time (each an “Audit”).
16.4
The Provider shall on request provide such records and accounts (together with copies of
the Provider's published accounts) during the Term and for a period of six (6) years after
expiry of the Term to the Authority and/or the Auditor.
16.5
The Authority shall use reasonable endeavours to ensure that the conduct of each Audit
does not unreasonably disrupt the Provider or delay the provision of the Services pursuant
to the Call-Off Contracts, or any other services to the Provider’s clients in the ordinary
course of its business save insofar as the Provider accepts and acknowledges that control
over the conduct of Audits carried out by the Auditor is outside of the control of the Authority.
16.6
Subject to the Authority's rights of confidentiality, and the Provider’s duties of confidentiality
to third parties, the Provider shall on demand provide the Auditor with all reasonable cooperation and assistance in relation to each Audit, including:
16.7
16.6.1
all information reasonably requested by the Auditor within the scope of the Audit;
16.6.2
reasonable access to sites controlled by the Provider (save where such access
reasonably needs to be restricted to protect confidential information) and to
equipment used in the provision of the Services; and
16.6.3
reasonable access to the Staff.
The Parties agree that they shall bear their own respective costs and expenses incurred in
respect of compliance with their obligations under this Clause 16, unless the Audit reveals a
Material Default by the Provider in which case the Provider shall reimburse the Authority for
the Authority's reasonable costs incurred in relation to the Audit.
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17.
CONFIDENTIALITY
17.1
Except to the extent set out in this clause or where disclosure is expressly permitted
elsewhere in this Framework Agreement, each Party shall:
17.2
(a)
treat the other Party’s Confidential Information as confidential and safeguard it
accordingly; and
(b)
not disclose the other Party’s Confidential Information to any other person without
the owner’s prior written consent (such consent not to be unreasonably withheld or
delayed).
Clause 17.1 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;
(b)
was already known to, or in the possession of the party making the disclosure
without obligation of confidentiality prior to its disclosure;
(c)
was obtained from a third party without, to the knowledge of the disclosing party,
obligation of confidentiality;
(d)
was already in the public domain at the time of disclosure otherwise than by a
breach of this Framework Agreement; or
(e)
is independently developed without access to the other Party’s Confidential
Information.
17.3
The Parties acknowledge that, except for any information which is exempt from disclosure in
accordance with the provisions of the FOIA, the content of this Agreement is not
Confidential Information. Where it considers it reasonably practicable to do so, the Authority
will consult with the Provider to inform its decision regarding any exemptions but the
Authority shall be solely responsible for determining in its absolute discretion whether any of
the content of this Agreement is exempt from disclosure in accordance with the provisions of
the FOIA.
17.4
Notwithstanding any other term of this Agreement, the Provider hereby gives his consent for
the Authority to publish the Agreement in its entirety (but with any information which is
exempt from disclosure in accordance with the provisions of the FOIA redacted), including
from time to time agreed changes to this Agreement, to the general public and the Provider
agrees to assist and cooperate with the Authority to enable the Authority to publish this
Agreement.
17.5
The Provider may only disclose the Authority’s Confidential Information to the Staff who are
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. The Provider shall not, and shall procure that the Staff do not, use any of the
Authority’s Confidential Information received otherwise than for the purposes of this
Agreement. Nothing in this Agreement shall prevent the Provider from disclosing the
Authority’s Confidential Information to its Representatives on the same basis.
17.6
Nothing in this Agreement shall prevent the Authority from disclosing any of the Provider’s
Confidential Information:
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(a)
as required by Law (including, without limitation, the FOIA or the Environmental
Information Regulations);
(b)
to HMT, the Bank of England, the Financial Services Authority or to any Crown
Body (“Permitted
Recipients”).
All Permitted Recipients receiving such
Confidential Information shall be entitled to further disclose the Confidential
Information to other Permitted Recipients on the basis that the information is
confidential and is not (save as required by Law) to be disclosed to a third party
which is not part of any Permitted Recipient;
(c)
to its Representatives;
(d)
to its professional advisers and contractors, to the extent that such persons require
the Confidential Information;
(e)
to any person conducting a review as part of the Efficiency and Reform Group
within the Cabinet Office or otherwise within Government (or any consultant,
contractor or professional adviser engaged by such a person);
(f)
to Parliament or to any Parliamentary committee;
(g)
to the European Commission, if and to the extent that the Authority considers such
disclosure is necessary in connection with the application of the State Aid rules of
the EC Treaty or in connection with any European Commission decision relating to
those rules;
(h)
to the extent required for the purposes of any arbitration or judicial proceedings;
(i)
for the purpose of the examination and certification of the accounts of the Authority
(or any executive agency of the Authority); or
(j)
for any examination pursuant to Section 6(1) of the National Audit Act 1983 of the
economy, efficiency and effectiveness with which the Authority (or any executive
agency of the Authority) has used its resources.
17.7
Nothing in this clause 17 shall prevent either Party from using any techniques, ideas or
know-how gained during the performance of the Framework Agreement in the course of its
normal business to the extent that this use does not result in a disclosure of the other party's
Confidential Information or an infringement of Intellectual Property Rights. No Party will owe
a duty of care to the other, where it uses the other's work and advice for a purpose other
than that for which the work or advice was provided, even if such use is in the ordinary
course of business.
17.8
Any capitalised terms used in this clause 17 but not otherwise defined in this Framework
Agreement shall have the respective meanings given to them in the Conditions. In this
clause 17 “Representatives” means (a) in the context of the Authority, the Treasury
Solicitor and the officials, employees and agents of the Authority and of the Treasury
Solicitor; and (b) in the context of any other person, directors, officers, employees, agents,
professional advisers and contractors.
17.9
The obligations imposed on the Parties in this Clause 17 shall apply during the Term and for
12 (twelve) months following the expiry or termination of this Framework Agreement.
17.10
The Authority shall use all reasonable endeavours to ensure that any Representative,
professional adviser or contractor to whom any Confidential Information is disclosed
pursuant to Clause 17.6 is made aware of the Authority's obligations of confidentiality
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18.
OFFICIAL SECRETS ACTS
18.1
Where applicable, the Provider shall comply with and shall ensure that its Staff comply with,
the applicable provisions of:
18.1.1
the Official Secrets Act 1911 to 1989; and
18.1.2
Section 182 of the Finance Act 1989.
18.2
In the event that the Provider or its Staff fail to comply with this Clause 18, the Authority
reserves the right to terminate this Framework Agreement with immediate effect by giving
notice in writing to the Provider.
19.
DATA PROTECTION
19.1
The Provider shall (and shall procure that its entire Staff) comply with any notification
requirements under the DPA and both Parties will duly observe all of their obligations under
the DPA which arise in connection with this Framework Agreement.
19.2
The provisions of this Clause to duly observe all of the Parties’ obligations under the DPA
which arise in connection with this Framework Agreement shall apply during the Term and
indefinitely after its expiry.
20.
FREEDOM OF INFORMATION
20.1
The Provider 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, within such timescales as the Authority may reasonably specify, to enable the
Authority to comply with its Information disclosure obligations.
20.2
The Provider shall:
(a)
transfer to the Authority all Requests for Information that it receives as soon as
practicable and in any event within two (2) 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 (5) Working Days (or such other
period as the Authority may reasonably 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.
20.3
The Authority shall be responsible for determining in its absolute discretion and
notwithstanding any other provision in this Agreement or any other agreement whether the
Commercially Sensitive Information and/or any other Information is exempt from disclosure
in accordance with the provisions of the FOIA or the Environmental Information Regulations.
20.4
In no event shall the Provider respond directly to a Request for Information unless expressly
authorised to do so by the Authority or failure to do so would constitute a breach of Law.
20.5
The Provider acknowledges that (notwithstanding the provisions of Clause 20.3) the
Authority may, acting in accordance with the Secretary of State for 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 Provider or
the Services:
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(a)
in certain circumstances without consulting the Provider; or
(b)
following consultation with the Provider and having taken their views into account,
provided always that where Clause 20.3 applies the Authority shall, in accordance with any
recommendations of the Code, take reasonable steps, where appropriate, to give the
Provider advanced notice, or failing that, to draw the disclosure to the Provider’s attention
after any such disclosure.
20.6
The Authority, where reasonably practicable to do so, agrees to consult with the Provider
prior to disclosing any Information provided always that nothing in this Clause 20.6 shall
affect the rights of the Authority to determine the Information to be disclosed in accordance
with Clause 20.3.
21.
PUBLICITY
21.1
Unless otherwise directed by the Authority or to satisfy the requirements of any Law, rule or
regulation, the Provider shall not make any press announcements in respect of, or publicise,
this Framework Agreement or any of the Services in any way without the Authority's
Approval and shall take all reasonable steps to ensure that its servants, employees and
directors comply with this clause.
21.2
The Authority shall be entitled to publicise this Framework Agreement in accordance with
any legal obligation upon the Authority, including any examination of this Framework
Agreement by the Auditor or otherwise.
21.3
The Provider shall not do anything which may damage the reputation of the Authority or
bring the Authority into disrepute.
22.
TERMINATION
Termination on Default
22.1
The Authority may terminate the Framework Agreement by serving written notice on the
Provider with effect from the date specified in such notice:
22.1.1
where the Provider commits a Material Default that was not caused by the
preceding act or omission, directly or indirectly, of the Customer and:(a)
the Provider has not remedied the Material Default to the reasonable
satisfaction of the Authority within ten (10) Working Days, or such longer
period as may be agreed between the Provider and the Authority, after
issue of a written notice specifying the Material Default and requesting it
to be remedied; or
(b)
the Material Default is not, in the reasonable opinion of the Authority,
capable of remedy.
Termination on Financial Standing
22.2
The Authority may terminate the Framework Agreement by serving notice on the Provider in
writing with effect from the date specified in such notice where (in the reasonable opinion of
the Authority), there is a material detrimental change in the financial standing and/or the
credit rating of the Provider which adversely impacts on the Provider's ability to supply
Services under this Framework Agreement.
Termination on Insolvency and Change of Control
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22.3
22.4
The Authority may terminate this Framework Agreement with immediate effect by notice in
writing where the Provider is a company and in respect of the Provider:
22.3.1
a proposal is made for a voluntary arrangement within Part I of the Insolvency Act
1986 or of any other composition scheme or arrangement with, or assignment for
the benefit of, its creditors; or
22.3.2
a shareholders' meeting is convened for the purpose of considering a resolution
that it be wound up or a resolution for its winding-up is passed (other than as part
of, and exclusively for the purpose of, a bona fide reconstruction or
amalgamation); or
22.3.3
a petition is presented for its winding up (which is not dismissed within 14 days of
its service) or an application is made for the appointment of a provisional liquidator
(which is not dismissed or withdrawn within 14 days of its being made) or a
creditors' meeting is convened pursuant to Section 98 of the Insolvency Act 1986;
or
22.3.4
a receiver, administrative receiver or similar officer is appointed over the whole or
any part of its business or assets; or
22.3.5
an application order is made either for the appointment of an administrator or for
an administration order (which is not dismissed or withdrawn within fourteen (14)
days of its being made) an administrator is appointed; or
22.3.6
it is or becomes insolvent within the meaning of Section 123 of the Insolvency Act
1986; or
22.3.7
being a "small company" within the meaning of Section 247(3) of the Companies
Act 1985, a moratorium comes into force pursuant to Schedule A1 of the
Insolvency Act 1986; or
22.3.8
any event similar to those listed in Clause 22.3.1 to Clause 22.3.7 occurs under
the law of any other jurisdiction.
The Provider shall notify the Authority immediately if the Provider undergoes a change of
control within the meaning of Section 416 of the Income and Corporation Taxes Act 1988
("Change of Control"). The Authority may terminate the Framework Agreement by giving
notice in writing to the Provider with immediate effect within six (6) Months of:22.4.1
being notified that a Change of Control has occurred; or
22.4.2
where no notification has been made, the date that the Authority becomes aware
of the Change of Control,
but shall not be permitted to terminate where an Approval was granted prior to the Change
of Control.
Termination by the Authority
22.5
The Authority shall have the right to terminate this Framework Agreement, or to terminate
the provision of any part of the Framework Agreement at any time by giving three Months'
written notice to the Provider and all other Services Framework Providers. The Parties
acknowledge that if the Authority exercises its rights under this Clause 22.5 it shall exercise
its equivalent rights under all agreements with the Services Framework Providers.
Termination by the Provider
22.6
The Provider may terminate this Agreement without notice:
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22.6.1
22.6.2
23.
for any act, omission, conduct or misconduct by the Authority which in the
Provider’s reasonable opinion:
(a)
materially undermines the relationship of confidence and trust between
the Authority and the Provider such that the Provider considers it is
inappropriate to continue acting for the Authority; or
(b)
could have a material adverse effect on the Provider’s reputation; or
where the Provider’s continued engagement hereunder could constitute a breach
of any applicable law or regulation.
SUSPENSION OF PROVIDER'S APPOINTMENT
Without prejudice to the Authority's rights to terminate the Framework Agreement in Clause
22 above, if a right to terminate this Framework Agreement arises in accordance with
Clause 22, the Authority may suspend the Provider's appointment to supply Services to
Contracting Bodies by giving notice in writing to the Provider. If the Authority provides notice
to the Provider in accordance with this Clause 23, the Provider's appointment shall be
suspended for the period set out in the notice or such other period notified to the Provider by
the Authority in writing from time to time.
24.
CONSEQUENCES OF TERMINATION AND EXPIRY
24.1
Notwithstanding the service of a notice to terminate the Framework Agreement, the Provider
shall continue to fulfil its obligations under the Framework Agreement until the date of expiry
or termination of the Framework Agreement or such other date as required under this
Clause 24.
24.2
Termination or expiry of the Framework Agreement shall not cause any Call-Off Contracts to
terminate automatically. For the avoidance of doubt, all Call-Off Contracts shall remain in
force unless and until they are terminated or expire in accordance with their own terms.
24.3
The Authority shall be entitled to require access to data or information arising from the
provision of the Services from the Provider until the latest of:
24.3.1
the expiry of a period of twelve (12) Months following termination or expiry of the
Framework Agreement; or
24.3.2
the expiry of a period of twelve (12) Months following the date on which the
Provider ceases to provide Services under any Call-Off Contract.
24.4
Termination or expiry of this Framework Agreement shall be without prejudice to any rights,
remedies or obligations of either Party accrued under this Framework Agreement prior to
termination or expiry.
24.5
The provisions of Clauses 8, 9, 10, 11, 17, 18, 19, 20, 21, 25, 26 and 37 shall survive the
termination or expiry of the Framework Agreement, together with any other provision which
is either expressed to or by implication is intended to survive termination.
25.
LIABILITY
25.1
Neither Party excludes or limits its liability for:25.1.1
death or personal injury caused by its negligence, or that of its Staff; and
25.1.2
fraud or fraudulent misrepresentation by it or its Staff.
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25.2
Notwithstanding any other provision of this Agreement, neither the Provider nor any other
member of the Provider Group (nor any of its or their respective Relevant Persons) shall be
liable to the Authority for any claim, loss, damage, liability, cost and/or expense ("Losses")
suffered by the Authority or any such other person arising out of or related to the Provider's
obligations under this Agreement or Services ("Authority Losses") except for Authority
Losses that arise out of any action or failure to act by the Provider that constitutes either (i)
fraud, wilful default or gross negligence on the part of the Provider; or (ii) a Material Default.
25.3
The Authority agrees to indemnify and hold harmless the Provider, each member of the
Provider's Group and their Relevant Persons (each an "Indemnified Person" and
cumulatively, "Indemnified Persons") against any Losses as incurred (including, without
limitation, all reasonable fees and disbursements of legal advisors) arising out of any actual
or proposed or completed Services or the Provider's engagement hereunder; provided,
however, there shall be excluded from such indemnification any such Losses to the extent
that they arise out of any action or failure to act by the Provider that is found in a final judicial
determination to either constitute (i) fraud, wilful default, or gross negligence on the part of
the Provider or (ii) a Material Default.
25.4
For the purposes of this Clause 25, "Provider's Group" shall mean the Provider and its
affiliates and subsidiary undertakings from time to time; "Relevant Persons" shall mean, in
relation to a member of the Provider's Group, the directors, officers, and employees of that
member and any successor or assign of such persons and "parent undertaking" and
"subsidiary undertaking" shall each be construed in accordance with section 1162 of the
Companies Act 2006.
26.
INSURANCE
26.1
The Provider shall effect and maintain policies of insurance to provide a level of cover
sufficient for all reasonably insurable risks which may be incurred by the Provider under this
Framework Agreement including death or personal injury, or loss of or damage to property.
26.2
The Provider shall effect and maintain the following insurances for the duration of the
Framework Agreement in relation to the performance of the Framework Agreement:26.2.1
public liability insurance adequate to cover all risks in the performance of this
Framework Agreement from time to time;
26.2.2
employers' liability insurance with a minimum limit of indemnity as required by law
from time to time; and
26.3
Any excess or deductibles under such insurance (referred to in Clause 26.1 and Clause
26.2) shall be the sole and exclusive responsibility of the Provider.
26.4
The terms of any insurance or the amount of cover shall not relieve the Provider of any
liabilities arising under the Framework Agreement.
26.5
The Provider shall produce to the Authority, on request, copies of all insurance policies
referred to in this Clause 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.
26.6
If, for whatever reason, the Provider fails to give effect to and maintain the insurances
required by the Framework Agreement then the Authority may make alternative
arrangements to protect its interests and may recover the costs of such arrangements from
the Provider.
26.7
The Provider shall maintain the insurances referred to in Clause 26.1 and Clause 26.2 for a
minimum of six (6) years following the expiration or earlier termination of the Framework
Agreement.
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27.
TRANSFER AND SUB-CONTRACTING
27.1
The Framework Agreement is personal to the Provider and the Provider shall not assign,
novate or otherwise dispose of the Framework Agreement or any part thereof without the
Approval of the Authority. The Provider shall not be entitled to sub-contract any of its rights
or obligations under this Framework Agreement save that the Provider may provide its
services through or in conjunction with one or more of its affiliates as notified to the Authority
from time to time, provided always that the Provider shall remain responsible for all acts and
omissions of any sub-contractor and nothing under this Clause 27.1 shall absolve the
Provider from its obligations to the Authority under this Agreement and references in the
Agreement to the Provider shall, save where the context otherwise requires, include any
such affiliates. Nothing in this Clause 27.1 shall affect the right of the Provider to subcontract any of its rights or obligations under a Call-Off Contract in accordance with the CallOff Terms and Conditions.
27.2
The Authority shall be entitled to:
27.2.1
assign, novate or otherwise dispose of its rights and obligations under the
Framework Agreement or any part thereof to any Other Contracting Body; or
27.2.2
novate the Framework Agreement to any other body (including any private sector
body) which substantially performs any of the functions that previously had been
performed by the Authority,
provided that such assignment, novation or disposals shall: (i) not increase the burden of the
Provider's obligations under the Framework Agreement and (ii) be subject to the completion
of such procedures (including, without limitation, in respect of client identification and anti
money laundering) as the Provider is required to operate by Law.
28.
VARIATIONS TO THE FRAMEWORK AGREEMENT
Any variations to the Framework Agreement must be made only in accordance with the
Framework Agreement Variation Procedure set out in Schedule 7.
29.
RIGHTS OF THIRD PARTIES
Save as provided in Clauses 4, 7 and 27.1 and the rights specified in the Framework
Agreement for the benefit of Contracting Bodies, a person who is not party to this
Framework Agreement ("Third Party") has no right to enforce any term of this Framework
Agreement but this does not affect any right or remedy of any person which exists or is
available otherwise than pursuant to that Act. If the Parties rescind this Framework
Agreement or vary any of its terms in accordance with the relevant provisions of this
Framework Agreement, such rescission or variation will not require the consent of any Third
Party.
30.
SEVERABILITY
30.1
If any provision of the Framework Agreement is held invalid, illegal or unenforceable for any
reason, such provision shall be severed and the remainder of the provisions hereof shall
continue in full force and effect as if the Framework Agreement had been executed with the
invalid provision eliminated.
30.2
In the event of a holding of invalidity so fundamental as to prevent the accomplishment of
the purpose of the Framework Agreement, the Authority and the Provider shall immediately
commence good faith negotiations to remedy such invalidity.
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31.
CUMULATIVE REMEDIES
Except as otherwise expressly provided by the Framework Agreement, all remedies
available to either Party for breach of the Framework Agreement are cumulative and may be
exercised concurrently or separately, and the exercise of any one remedy shall not be
deemed an election of such remedy to the exclusion of other remedies.
32.
WAIVER
32.1
The failure of either Party to insist upon strict performance of any provision of the
Framework Agreement, or the failure of either Party to exercise, or any delay in exercising,
any right or remedy shall not constitute a waiver of that right or remedy and shall not cause
a diminution of the obligations established by the Framework Agreement.
32.2
No waiver shall be effective unless it is expressly stated to be a waiver and communicated
to the other Party in writing in accordance with Clause 34.
32.3
A waiver of any right or remedy arising from a breach of the Framework Agreement shall not
constitute a waiver of any right or remedy arising from any other or subsequent breach of
the Framework Agreement.
33.
ENTIRE AGREEMENT
33.1
This Framework Agreement constitutes the entire agreement and understanding between
the Parties in respect of the matters dealt with in it and supersedes, cancels or nullifies any
previous agreement between the Parties in relation to such matters without prejudice to any
agreement the Provider may subsequently reach with the Authority.
33.2
Each of the Parties acknowledges and agrees that in entering into this Framework
Agreement it does not rely on, and shall have no remedy in respect of, any statement,
representation, warranty or undertaking (whether negligently or innocently made) other than
as expressly set out in this Framework Agreement. The only remedy available to either
Party of such statements, representation, warranty or understanding shall be for breach of
contract under the terms of this Framework Agreement.
33.3
Nothing in this Clause 33 shall operate to exclude Fraud or fraudulent misrepresentation.
34.
NOTICES
34.1
Except as otherwise expressly provided within this Framework Agreement, no notice or
other communication from one Party to the other shall have any validity under the
Framework Agreement unless made in writing by or on behalf of the Party sending the
communication.
34.2
Any notice or other communication which is to be given by either Party to the other (in this
clause 34 a “notice”) shall be given by letter (sent by hand, registered post or by the
recorded delivery service) or electronic mail. Notices shall be sent to the other Party at the
address and marked for the attention of the relevant individual set out in Clause 34.3.
Subject to clause 34.4, any notice under this clause 34 shall be deemed to have been duly
given:
34.3
34.2.1
if sent by letter, two (2) Working Days after the day on which the letter was sent
(provided that the letter has not been returned as undelivered); or
34.2.2
if sent by email, when sent (provided that an email shall be deemed not to have
been sent if the sender receives a delivery failure notification).
For the purposes of Clause 34.2, the address of each Party shall be:
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34.3.1
For the Authority: UK Financial Investments, 100 Parliament Street, SW1A 2BQ
For the attention of: UKFI Procurement
Email: [email protected]
35.3.2
For the Provider: [Insert Provider’s name]
For the attention of:
Email:
34.4
Either Party may change its address for service by serving a notice in accordance with this
Clause.
35.
COMPLAINTS HANDLING AND RESOLUTION
Within five (5) Working Days of a request by the Authority, the Provider shall provide full
details of a Complaint to the Authority, including details of steps taken to its resolution.
36.
DISPUTE RESOLUTION
36.1
The Parties shall attempt in good faith to negotiate a settlement to any dispute between
them arising out of or in connection with the Framework Agreement within twenty (20)
Working Days of either Party notifying the other of the dispute and such efforts shall involve
the escalation of the dispute to suitably senior personnel within each Party.
36.2
Nothing in this dispute resolution procedure shall prevent the Parties from seeking from any
court of competent jurisdiction an interim order restraining the other Party from doing any act
or compelling the other Party to do any act.
36.3
If the dispute cannot be resolved by the Parties pursuant to Clause 36.1 the dispute may, by
agreement between the Parties, be referred to mediation pursuant to the procedure set out
in Clause 36.5.
36.4
The obligations of the Parties under the Framework Agreement shall not be suspended,
cease or be delayed by the reference of a dispute to mediation and the Parties shall comply
fully with the requirements of the Framework Agreement at all times.
36.5
The procedure for mediation and consequential provisions relating to mediation are as
follows:
36.5.1
a neutral adviser or mediator ("the Mediator") shall be chosen by agreement
between the Parties or, if they are unable to agree upon a Mediator within ten (10)
Working Days after a request by one Party to the other to appoint a Mediator or if
the Mediator agreed upon is unable or unwilling to act, either Party shall within ten
(10) Working Days from the date of the proposal to appoint a Mediator or within
ten (10) Working Days of notice to either Party that he is unable or unwilling to act,
apply to the Centre for Dispute Resolution (“CEDR”) to appoint a Mediator;
36.5.2
the Parties shall within ten (10) Working Days of the appointment of the Mediator
meet with him in order to agree a programme for the exchange of all relevant
information and the structure to be adopted for negotiations to be held. If
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considered appropriate, the Parties may at any stage seek assistance from CEDR
to provide guidance on a suitable procedure;
37.
36.5.3
unless otherwise agreed, all negotiations connected with the dispute and any
settlement agreement relating to it shall be conducted in confidence and without
prejudice to the rights of the Parties in any future proceedings;
36.5.4
if the Parties reach agreement on the resolution of the dispute, the agreement
shall be reduced to writing and shall be binding on the Parties once it is signed by
their duly authorised representatives;
36.5.5
failing agreement, either of the Parties may invite the Mediator to provide a nonbinding but informative opinion in writing. Such an opinion shall be provided on a
without prejudice basis and shall not be used in evidence in any proceedings
relating to this Framework Agreement without the prior written consent of both
Parties; and
36.5.6
if the Parties fail to reach agreement in the structured negotiations within sixty (60)
Working Days of the Mediator being appointed, or such longer period as may be
agreed by the Parties, then any dispute or difference between them may be
referred to the courts.
COUNTERPARTS
This Framework Agreement may be executed in counterparts each of which when executed
and delivered shall constitute an original but all counterparts together shall constitute one
and the same instrument.
38.
LAW AND JURISDICTION
Subject to the provisions of Clause 36 and Clause 37, the Authority and the Provider accept
the exclusive jurisdiction of the English courts and agree that the Framework Agreement its
interpretation and any non-contractual obligations arising out of or in relation to it is to be
governed by and construed according to English Law.
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SIGNED by or on behalf of the Parties on the date which first appears in the Framework Agreement
SIGNED by
for and on behalf of UK Financial Investments
)
)
)
.........................................................
(Authorised Signatory)
Position
.........................................................
Date
.........................................................
SIGNED by
for and on behalf of the Provider
)
)
)
.........................................................
(Authorised Signatory)
Position
.........................................................
Date
.........................................................
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SCHEDULE 1
SERVICES AND LOTS
1. SERVICES FRAMEWORK LOTS
1.1.1.Lot 1 – Bookrunner(s) to participate in the sale and distribution of securities, including shares
and equity linked products. The Authority retains the right to appoint one or more Bookrunners
as Global Coordinators at the time of a transaction, and to appoint a Coordinator(s) in a retail
offering;
1.1.2.Lot 2 – Co-Lead Manager(s) or equivalent non-book running distribution role to assist in the
sale and distribution of securitites, including shares and equity linked products, which could
include specialised distribution;
1.1.3.Lot 3 – Capital Markets Adviser(s) to assist in a sale process to achieve optimal execution in
the context of sale of securities, including shares and equity linked products;
1.1.4.Lot 4 – Financial and/or Strategic Adviser(s) in formulating the Authority’s privatisation strategy
and/or in executing strategic transactions.
2. PROVIDER'S LOT(S)
The Provider was successful in being awarded inclusion in Lot(s) [Insert relevant Lot number].
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SCHEDULE 2
AWARD CRITERIA
Competed Services Award Criteria
[To Delete As Appropriate]
Criterion
Number
Evaluation Criteria for Lot 1
Percentage Weightings
1
Strength of equity capital markets franchise
40%
2
Strength of equity trading platform
20%
3
Strength of distribution platform
40%
Criterion
Number
Evaluation Criteria for Lot 2
Percentage Weightings
1
Strength of equity capital markets franchise
40%
2
Strength of equity trading platform
20%
3
Strength of distribution platform
40%
Criterion
Number
1
Criterion
Number
Evaluation Criteria for Lot 3
Percentage Weightings
Strength of capital markets / retail offering advisory
team including previous experience
Evaluation Criteria for Lot 4
100%
Percentage Weightings
1
Strength of previous experience
40%
2
Quality of team
30%
3
Strength of resources
30%
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Direct Award Criteria
Direct Awards will be granted based on an assessment as set out in the following table in the event
that the Authority decides to use this multi Provider Framework to source services:
Pass / Fail criteria
Any actual, potential and perceived conflicts
of interest and how these will be managed
Pass/Fail
If this question cannot be
addressed to the satisfaction
of the Authority, the Tenderer
will fail to meet this
requirement
Weighting
Established Framework
mechanism
Qualitative criteria
Scores achieved on qualitative criteria most
relevant to the specific transaction in question.
For this scoring, the initial response to the ITT
will be subject to moderation evidenced by
any information subsequently gathered by the
Authority which indicates a change in
circumstances. Examples of such changes
could include but are not limited to key
personnel changes, or structural changes
resulting from acquisitions or disposals. This
assessment may also include evidence
obtained in any Contracts(s) that have
previously been awarded by the Authority to
the Provider
Evidence of high quality of insight on the
Authority’s shareholdings and/or mandate
through active engagement with the Authority;
such as views on Lloyds’ and RBS’ value
prospects, investors feedback, insight into
evolving debt and equity market conditions,
updates on regulatory developments in the
financial sector
50%
Commercial criteria
The fees quoted in the original Tender for the
transaction which is most closely associated
to the specific transaction, and the proposed
commercial terms around the time of this
Direct Award
50%
25%
Scoring 0-100
25%
Scoring 0-100
50%
Scoring 0-100
Directly Awarded Call-Off Contract(s) will be formed by the issue of an Order Form by the Authority
to the Provider and acceptance by the Provider of such an Order. Call-Off Contract(s) will be on the
terms specified in the Framework Agreement in Schedule 4 of Section 5, supplemented as
appropriate by other details which will be specified in the Order Form.
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SCHEDULE 3
PRICING
[To Delete As Appropriate]
Charges for Lot 1 – Bookrunner
Type
Size of Trade
ABB
<£3 billion
ABB
>£3 billion
FMO
<£5 billion
FMO
>£5 billion
EQL
<£2 billion
EQL
>£2 billion
Fee Quoted
Charges for Lot 2 – Co-Lead Manager
The minimum fee expected for acting in a Co-Lead Manager or equivalent non-book running distribution role.
Charges for Lot 3 – Capital Markets Adviser
1: ABB
Fee
Description of changes to
fees if retail component
Description of changes to
fees due to size of
transactions
2: FMO
Fee
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Description of changes to
fees if retail component
Description of changes to
fees due to size of
transactions
3: Retail Offerings
Mass Direct Offer
Intermediaries Only Offer
Charges for Lot 4 – Financial and/or Strategic Advisor
Project Fee
Advice for Strategic
Transactions
[Percentage of deal size. Please include any sliding scale that
would be applicable]
Advice on formulating the
Authority’s privatisation
strategy
[Flat fee]
Fairness opinion
[Flat fee]
Discounts
Discounts proposed.
Retrospective rebates
Rebates proposed.
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SCHEDULE 4
ORDER FORM
FROM
Customer
United Kingdom Financial Investments Limited
Service Address
100 Parliament Street, London, SW1A 2BQ
For the attention of
Email
Invoice Address
For the attention of
Contact Ref:
Ref:
Phone:
e-mail:
Order Number
To be quoted on all correspondence relating to this Order:
Order Date
TO
Provider:
[insert Provider's name]
For the attention of:
E-mail
Telephone number
Address
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1. SERVICES REQUIREMENTS
(1.1) Services [and Deliverables] Required:
.
(1.2) Commencement Date:
(1.3) Price Payable by Customer
(1.4) Completion Date:
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2 ADDITIONAL REQUIREMENTS
(2.1) Supplemental Requirements in addition to Call-Off Terms and Conditions:
(2.2) Variations to Call-Off Terms and Conditions:
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3. PERFORMANCE OF THE SERVICES AND DELIVERABLES
(3.1) Key Personnel of the Provider to be involved in the Services and Deliverables:
(3.2) Performance Standards:
(3.3) Location(s) at which the Services are to be provided:
(3.4) Quality Standards:
(3.5) Contract Monitoring Arrangements:
[Cross refer to the Monitoring and Management Information Schedule, if applicable]
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4. CONFIDENTIAL INFORMATION
(4.1) The following information shall be deemed Commercially Sensitive Information or Confidential
Information:
(4.2) Duration that the information shall be deemed Commercially Sensitive Information or
Confidential Information:
BY SIGNING AND RETURNING THIS ORDER FORM THE PROVIDER HEREBY AGREES to provide to
the Customer the Services specified in this Order Form (together with, where completed, the minicompetition order (additional requirements) set out in section 2 of this Order Form). This Order Form
incorporates the Call-Off Terms and Conditions (as amended, in respect of this Order Form only, pursuant to
section 2.2 above) set out in the Framework Agreement entered into by the Provider and United Kingdom
Investments Limited (UKFI) dated [insert date of signing]
For and on behalf of the Provider:
Name and Title
Signature
Date
For and on behalf of the Customer:Name and Title
Signature
Date
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SCHEDULE 5
CALL-OFF TERMS AND CONDITIONS
1.
GENERAL PROVISIONS
1.1
Definitions
In the Contract unless the context otherwise requires the following provisions shall have the
meanings given to them below:-
“Affiliate”
means in relation to a person , 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
means the written consent of the Customer
"Approval" and "Approved"
"Auditor"
means the National Audit Office or an auditor appointed by the
Audit Commission as the context requires
"Customer"
means the customer(s), person, firm or company as identified in
the Order Form
"Commencement Date"
means the date set out in the Order Form
"Commercially Sensitive Information"
means the Confidential Information listed in the Order Form
comprised of information:(a)
which is provided by the Contractor and designated as
commercially sensitive information by the Customer for the period
set out in that Order Form and/or
(b)
that constitutes a trade secret
“Conditions”
means these Call-Off terms and conditions
"Confidential Information"
means
(a)
any information which has been designated as
confidential by the Contractor in writing or that ought to be
considered as confidential (however it is conveyed or on whatever
media it is stored) including information the disclosure of which
would, or would be likely to, prejudice the commercial interests of
the Contractor, trade secrets, Intellectual Property Rights and
know-how of the Contractor ; and
(b)
the Commercially Sensitive Information
“Confidentiality Agreement”
has the meaning given to such term in the Framework Agreement
"Contract"
means the written agreement between the Customer and the
Contractor consisting of the Order Form and these clauses save
that, for the purposes of Clause 1.6.4 only, reference to 'Contract'
shall not include the Order Form
"Contracting Authority"
means the Customer
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"Contractor"
means the person, firm or company with whom the Customer
enters into the Contract as identified in the Order Form
“Contractor Personnel”
means all employees, agents, consultants, directors or officers
and contractors of the Contractor and/or of any Sub-contractor
"Contract Period"
means the period from the Commencement Date to:(a)
the date of expiry set out in Clause 1.3 (Initial Contract
Period);
(b)
following an extension pursuant to Clause 6.8
(Extension of Initial Contract Period), the date of expiry
of the extended period; or
(c)
such earlier date of termination or partial termination of
the Contract in accordance with the Law or the
provisions of the Contract
"Contract Price"
means the price (exclusive of any applicable VAT), payable to the
Contractor by the Customer under the Contract, as set out in the
Order Form, for the full and proper performance by the Contractor
of its obligations under the Contract
"Crown"
means the government of the United Kingdom (including the
Northern Ireland Assembly and Executive Committee, the Scottish
Executive and the National Assembly for Wales), including, but
not limited to, government ministers and government departments
and particular bodies, persons, commissions or agencies from
time to time carrying out functions on its behalf
“Customer 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:
(b)
(i)
supplied to the Contractor by or on behalf of
the Customer; or
(ii)
which the Contractor is required to generate,
process, store or transmit pursuant to this
Contract; or
any Personal Data for which the Customer is the
Data Controller;
"Default"
means any breach of the obligations of the relevant Party
(including but not limited to fundamental breach or breach of a
fundamental term) or any other default, act, omission, negligence
or negligent statement of the relevant Party or (in the case of the
Contractor) the Staff, whether arising in contract, tort (including
negligence), breach of statutory duty or howsoever arising in
connection with or in relation to the subject-matter of the Contract
and in respect of which such Party is liable to the other
"Deliverables"
means those deliverables listed in the Order Form
"DPA"
means the Data Protection Act 1998 and any subordinate
legislation made under such Act 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
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such legislation
"Environmental Information
Regulations"
means the Environmental Information Regulations 2004 together
with any guidance and/or codes of practice issued by the
Information Commissioner or relevant government department in
relation to such regulations
"Equipment"
means the Contractor's equipment, plant, materials and such
other items supplied and used by the Contractor in the
performance of its obligations under the Contract
"Fees Regulations"
means the Freedom of Information and Data Protection
(Appropriate Limit and Fees) Regulations 2004
"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 or relevant government department in relation to
such legislation
"Force Majeure"
means any event or occurrence which is outside the reasonable
control of the Party concerned and which is not attributable to any
act or failure to take preventative action by that Party, including
fire; flood; violent storm; pestilence; explosion; malicious damage;
armed conflict; acts of terrorism; nuclear, biological or chemical
warfare; or any other disaster, natural or man-made, but
excluding:
(a)
any industrial action occurring within the Contractor's
organisation; or
(b)
the failure by any sub-contractor or contractor of the
Contractor to perform its obligations under any Contract
"Framework Agreement"
means the Framework Agreement for the provision of Investment
Banking Services between the Authority and the Contractor
"Fraud"
means any offence under Laws creating offences in respect of
fraudulent acts or at common law in respect of fraudulent acts in
relation to the Contract or defrauding or attempting to defraud or
conspiring to defraud a Contracting Authority or the Customer
"Good Industry Practice"
means standards, practices, methods and procedures conforming
to the Law and the degree of skill and care, diligence, prudence
and foresight which would reasonably and ordinarily be expected
from a skilled and experienced person or body engaged in a
similar type of undertaking under the same or similar
circumstances any another quality standards set out in the Order
Form
"Information"
has the meaning given under section 84 of the FOIA
"Initial Contract Period"
means the period from the Commencement Date to the date of
expiry set out in Clause 1.3 (Initial Contract Period), or such
earlier date of termination or partial termination of the agreement
in accordance with the provisions of the Contract
"Intellectual Property Rights" and
"IPRs"
means patents, inventions, trademarks, service marks, logos,
design rights (whether registrable or otherwise), applications for
any of the foregoing, copyright, database rights, domain names,
trade or business names, moral rights and other similar rights or
obligations whether registrable or not in any country (including but
not limited to the United Kingdom) and the right to sue for passing
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off
"Key Personnel"
means any individual identified in the Order Form as being key
personnel
"Law"
means any applicable law, common law, Act of Parliament,
subordinate legislation within the meaning of Section 21(1) of the
Interpretation Act 1978, exercise of the royal prerogative,
enforceable community right within the meaning of Section 2 of
the European Communities Act 1972, regulatory policy, guidance
or industry code, judgment of a relevant court of law, or directives
or requirements of any Regulatory Body
“Management Information”
means the information specified in the Order Form and/or the
Monitoring and Management Information Schedule
"Month"
means a calendar month
"Order"
means the order submitted by the Customer to the Contractor in
accordance with the Framework Agreement
"Order Form"
means the order submitted to the Contractor by the Customer in
accordance with the Framework Agreement which sets out the
description of the Services to be supplied including, where
appropriate, the Key Personnel, the Premises, the timeframe, the
Deliverables and the Quality Standards
"Parent Company"
means any company which is the ultimate Holding Company of
the Contractor or any other company of which the ultimate Holding
Company of the Contractor is also the ultimate Holding Company
and which is either responsible directly or indirectly for the
business activities of the Contractor or which is engaged by the
same or similar business to the Contractor. The term "Holding
Company" shall have the meaning ascribed in Section 736 of the
Companies Act 1985 or any statutory re-enactment or amendment
thereto
"Party"
means the Contractor or the Customer (and “Parties” shall be
construed accordingly)
"Pre-Existing IPR"
shall mean any Intellectual Property Rights vested in or licensed
to the Customer or the Contractor prior to or independently of the
performance by the Customer or the Contractor of their obligations
under the Contract and in respect of the Customer includes,
guidance, specifications, instructions, toolkits, plans, data,
drawings, databases, patents, patterns, models and designs
"Premises"
means any land or buildings occupied by the Customer being the
location where the Services are to be supplied, as more
particularly set out in the Order Form
"Project Specific IPRs"
means:
(a)
IPRs in items created by the Contractor (or by a third party
on behalf of the Contractor) specifically for the purposes of
the Contract including, any Deliverables and all updates
and amendments of these items; and/or
(b)
IPRs arising as a result of the performance of the
Contractor's obligations under the Contract
but shall not, for the avoidance of doubt, include any Pre-Existing
IPR
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"Property"
means the property, other than real property, issued or made
available to the Contractor by the Customer in connection with the
Contract (but shall not, for the avoidance of doubt, include any
documents that are not unique originals, any IPRs or any
Customer Data).
"Quality Standards"
means Good Industry Practice and any other quality standards set
out in the Order Form
"Regulatory Bodies"
means those government departments and regulatory, statutory
and other entities, committees, ombudsmen 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
Customer
"Replacement Contractor"
means any third party service provider appointed by the Customer
to supply any services which are substantially similar to any of the
Services and which the Customer receives in substitution for any
of the Services following the expiry, termination or partial
termination of the Contract
"Request for Information"
shall have the meaning set out in the FOIA or the Environmental
Information Regulations as relevant (where the meaning set out
for the term "request" shall apply)
"Services"
means the services to be supplied as specified in the Order Form
"Staff"
means all persons employed by the Contractor, the Contractor’s
Holding Company or any subsidiary, branch or affiliate of the
Holding Company and who are involved in the performance of the
Contract
“Staff Vetting Procedures
means the Customer’s procedures and departmental policies for
the vetting of personnel whose role will involve the handling of
information or a sensitive of confidential nature or the handling of
information which is subject to any relevant security measure
including but not limited to, the provisions of the Official Secrets
Act 1911 to 1989 and which shall include as a minimum Baseline
Personnel Security Standard checks in accordance with Cabinet
Office guidance
“Sub-contract”
any contract or agreement or proposed contract or agreement
between the Contractor and any third party whereby that third
party agrees to provide to the Contractor the Services or any part
thereof or facilities or services necessary for the provision of the
Services or any part thereof or necessary for the management,
direction or control of the Services or any part thereof;
“Sub-contractor”
means the third party with whom the Contractor enters into a Subcontract or its servants or agents and any third party with whom
that third party enters into a Sub-contract or its servants or agents;
"Tender"
means the document(s) submitted by the Contractor to the
Customer in response to the Customer's invitation to suppliers for
formal offers to supply it with the Services pursuant to the
Framework Agreement
"Variation"
has the meaning given to it in Clause 6.3 (Variation)
"VAT"
means value added tax in accordance with the provisions of the
Value Added Tax Act 1994
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"Working Day"
means any day other than a Saturday or Sunday or public holiday
in England and Wales
“Working Hours”
means 9.00am to 5.00pm on any Working Day
1.2
Interpretation
The interpretation and construction of the Contract shall be subject to the following provisions:
1.3
1.2.1
words importing the singular meaning include where the context so admits the plural
meaning and vice versa;
1.2.2
words importing the masculine include the feminine and the neuter;
1.2.3
reference to a clause is a reference to the whole of that clause unless stated otherwise;
1.2.4
references 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
amended by any subsequent enactment, modification, order, regulation or instrument as
subsequently amended or re-enacted;
1.2.5
references 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;
1.2.6
the words "include", "includes" and "including" are to be construed as if they were
immediately followed by the words "without limitation"; and
1.2.7
headings are included in the Contract for ease of reference only and shall not affect the
interpretation or construction of the Contract.
Initial Contract Period
The Contract shall take effect on the Commencement Date and shall expire automatically on the
date set out in the Order Form, unless it is otherwise terminated in accordance with the provisions
of the Contract, or otherwise lawfully terminated, or extended under Clause 6.8 (Extension of Initial
Contract Period).
1.4
Contractor's Status
At all times during the Contract Period the Contractor shall be an independent contractor and
nothing in the Contract shall create a contract of employment, a fiduciary relationship, a
relationship of agency or partnership or a 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 the Contract. The Contractor has been engaged
only by the Customer and the Customer's engagement of the Contractor is not deemed to be on
behalf of and is not intended to confer rights upon any person not a party to this Contract. No one
other than the Customer is authorised to rely upon any statements, advice or opinions of the
Contractor
1.5
Customer's Obligations
Save as otherwise expressly provided, the obligations of the Customer under the Contract are
obligations of the Customer in its capacity as a contracting counterparty and nothing in the Contract
shall operate as an obligation upon, or in any other way fetter or constrain the Customer in any
other capacity.
1.6
Entire Agreement
1.6.1
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This Contract together with Clause 12 of the Framework Agreement constitutes the entire
agreement and understanding between the Parties in respect of the matters dealt with in
it and supersedes, cancels or nullifies any previous agreement between the Parties in
relation to such matters.
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1.6.2
Each of the Parties acknowledges and agrees that in entering into the Contract it does
not rely on, and shall have no remedy in respect of, any statement, representation,
warranty or undertaking (whether negligently or innocently made) other than as expressly
set out in the Contract. The only remedy available to either Party for any such statements,
representation, warranty or understanding shall be for breach of contract under the terms
of the Contract. Whilst the Customer makes no representation as to the accuracy and
adequacy of any information supplied by it or on its behalf it acknowledges that the
Contractor is entitled to assume the accuracy of such information in providing the
Services provided that in the particular circumstances (including without limitation the
Contractor’s professional abilities) it is otherwise reasonable for the Contractor to make
such an assumption.
1.6.3
Nothing in Clauses 1.6.1 or 1.6.2 shall operate to exclude Fraud or fraudulent
misrepresentation.
1.6.4
In the event of and only to the extent of any conflict or discrepancy between the Order
Form, the clauses of the Contract and any document referred to in those clauses, the
conflict shall be resolved in accordance with the following order of precedence:
1.6.5
1.7
the Order Form;
(b)
the clauses of the Contract; and
(c)
any other document referred to in the clauses of the Contract.
The Contract may be executed in counterparts each of which when executed and
delivered shall constitute an original but all counterparts together shall constitute one and
the same instrument.
Notices
1.7.1
Except as otherwise expressly provided within the Contract, any notice or other
communication which is to be given by one Party to the other under or in connection with
this Contract (in this clause 1.7 a “notice”) shall only have any validity under the Contract
if made in writing by or on behalf of the Party concerned.
1.7.2
Any notice or other communication shall be given by letter (sent by hand, registered post
or by the recorded delivery service) or electronic mail. Notices shall be sent to the other
Party at the address, and marked for the attention of the relevant individual as set out in
Clause 1.7.3. Subject to clause 1.7.4, any notice under this clause 1.7 shall be deemed to
have been duly given:
1.7.3
1.7.4
1.8
(a)
(a)
if sent by letter, two (2) Working Days after the day on which the letter was sent
(provided that the letter has not been returned as undelivered); or
(b)
if sent by email, when sent (provided that an email shall be deemed not to have
been sent if the sender receives a delivery failure notification).
For the purposes of Clause 1.7.2, the address of each Party shall be:
(a)
for the Customer, the service address set out in the Order Form (and marked
for the attention of the individual specified in the Order Form);
(b)
for the Contractor, the address set out in the Framework Agreement.
Either Party may change its address for service by serving a notice in accordance with
this clause.
Mistakes in Information
The Contractor shall be responsible for the accuracy of all drawings, documentation and
information supplied to the Customer by the Contractor in connection with the supply of the
Services and shall pay the Customer any extra costs occasioned by any discrepancies, errors or
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omissions therein save that the Contractor shall be entitled to rely upon and will have no liability for
information provided by the Customer or for information (including but not limited to market pricing
data) explicitly sourced from third parties.
Conflicts of Interest
1.9
The Contractor will maintain and operate effective organisational and administrative arrangements
to ensure that neither the Contractor nor any Staff are placed in a position where (in the reasonable
opinion of the Customer) there is or may be an actual conflict, or a potential conflict, between the
pecuniary or personal interests of the Provider or Staff and the duties owed to the Customer and
Other Contracting Bodies which will, or could, give rise to a material risk of damage to the interests
of the Customer under the provisions of this Contract.
1.10
If arrangements made by the Contractor to manage conflicts of interest in accordance with Clause
1.9 above are not sufficient to ensure, with reasonable confidence, that risks of damage to the
interests of the Customer will be prevented, the Contractor will immediately:
1.10.1
notify the Customer; and
1.10.2
provide full particulars of the conflict; or
1.10.3
where full particulars cannot be provided owing to confidentiality obligations to third
parties, the Contractor agrees to:
(a)
clearly disclose the general nature and/or sources of conflicts of interest to the
Customer;
(b)
include sufficient detail to enable the Customer to take an informed decision
with respect to the Services in the context of which the conflict of interest arises;
and
(c)
provide all such further information and assistance as may be reasonably
required by the Customer in forming its determination in accordance with
1.10.3(b) above.
For the avoidance of doubt, the obligations to notify contained in this Clause 1.10 are continuing
obligations and the Contractor agrees to notify the Customer on each occasion when a situation
referred to in this Clause 1.10 arises.
1.11
The Customer reserves the right to terminate this Contract immediately by giving notice in writing to
the Contractor and/or to take such other steps it deems necessary where, in the reasonable
opinion of the Customer, there is or may be an actual conflict, or a potential conflict, between the
pecuniary or personal interests of the Contractor and the duties owed to the Customer under the
provisions of this Contract. The action of the Customer pursuant to this Clause shall not prejudice
or affect any right of action or remedy which shall have accrued or shall thereafter accrue to the
Customer.
1.12
Prevention of Fraud
1.12.1
The Contractor shall take all reasonable steps, in accordance with Good Industry
Practice, to prevent Fraud by Staff and the Contractor (including its shareholders,
members and directors) in connection with the receipt of monies from the Customer.
1.12.2
The Contractor shall notify the Customer immediately if it has reason to suspect that any
Fraud has occurred or is occurring or is likely to occur.
If the Contractor or its Staff commits any Fraud in relation to the Contract or any other contract with
a Contracting Authority or the Customer, the Customer may terminate the Contract with immediate
effect by giving the Contractor notice in writing.
2.
SUPPLY OF SERVICES
2.1
The Services
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2.2
2.1.1
The Contractor shall supply the Services during the Contract Period in accordance with
the Customer's requirements as set out in the Contract in consideration for the payment
of the Contact Price.
2.1.2
If the Customer informs the Contractor in writing that the Customer reasonably believes
that any part of the Services does not meet the requirements of the Contract or differs in
any way from those requirements, and this is other than as a result of a Default on the
part of the Customer, the Contractor shall at its own expense re-schedule and carry out
the Services in accordance with the requirements of the Contract within such reasonable
time as may be specified by the Customer.
2.1.3
Subject to the Customer providing Approval in accordance with Clause 2.2.2 (Provision
and Removal of Equipment), timely supply of the Services shall be of the essence of the
Contract, including in relation to commencing the supply of the Services within the time
agreed or on a specified date.
Provision and Removal of Equipment
2.2.1
Unless otherwise stated in the Order Form, the Contractor shall provide all the Equipment
necessary for the supply of the Services.
2.2.2
The Contractor shall not deliver any Equipment nor begin any work on the Premises
without obtaining prior Approval.
2.2.3
All Equipment brought onto the Premises shall be at the Contractor's own risk and the
Customer 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 the Customer's Default. The Contractor shall provide for the haulage or carriage
thereof to the Premises and the removal of Equipment when no longer required at its sole
cost. Unless otherwise agreed, Equipment brought onto the Premises will remain the
property of the Contractor.
2.2.4
The Contractor shall maintain all items of Equipment within the Premises in a safe,
serviceable and clean condition.
2.2.5
The Contractor shall, at the Customer's written request, at its own expense and as soon
as reasonably practicable:
2.2.6
2.3
2.4
(a)
remove from the Premises any Equipment which in the reasonable opinion of
the Customer is either hazardous, noxious or not in accordance with the
Contract; and
(b)
replace such item with a suitable substitute item of Equipment.
On completion of the Services, the Contractor shall remove the Equipment together with
any other materials used by the Contractor to supply the Services and shall leave the
Premises in a clean, safe and tidy condition. The Contractor is solely responsible for
making good any damage to the Premises or any objects contained thereon, other than
fair wear and tear, which is caused by the Contractor or any Staff.
Manner of Carrying Out the Services
2.3.1
The Contractor shall at all times comply with the Quality Standards, and, where
applicable, shall maintain accreditation with the relevant Quality Standards authorisation
body. To the extent that the standard of Services has not been specified in the Contract
the Contractor shall agree the relevant standard of the Services with the Customer prior
to the supply of the Services and, in any event, the Contractor shall perform its
obligations under the Contract in accordance with the Law and Good Industry Practice.
2.3.2
The Contractor shall ensure that all Staff supplying the Services shall do so with due skill,
care and diligence and shall possess such qualifications, skills and experience as are
necessary for the proper supply of the Services.
Key Personnel
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2.5
2.4.1
The Parties may have agreed to the appointment of the Key Personnel. The Contractor
shall, where possible obtain the prior Approval of the Customer before removing or
replacing any Key Personnel during the Contract Period save that notwithstanding the
foregoing the Contractor may remove or replace Key Personnel who are unable to
provide the Services by reason of long-term sickness, maternity leave, paternity leave,
termination of employment/partnership or other extenuating circumstances, and, where
possible, at least one (1) months' written notice must be provided by the Contractor of its
intention to replace Key Personnel.
2.4.2
The Customer shall not unreasonably delay or withhold its consent to the appointment of
a replacement for any relevant Key Personnel by the Contractor.
2.4.3
The Contractor acknowledges that the Key Personnel are essential to the proper
provision of the Services to the Customer. The Contractor shall unless it has Approval to
the contrary ensure that the role of any Key Personnel is not vacant for any longer than
strictly necessary and that any replacement shall be as or more qualified and experienced
as the previous incumbent and fully competent to carry out the tasks assigned to the Key
Personnel whom he or she has replaced.
2.4.4
The Customer may also require the Contractor to remove any Key Personnel that the
Customer (acting reasonably) considers in any respect unsatisfactory. The Customer
shall not be liable for the cost of replacing any Key Personnel.
Contractor's Staff
2.5.1
The Customer may, by written notice to the Contractor, refuse to admit onto, or withdraw
permission to remain on, the Premises:
(a)
any member of the Staff; or
(b)
any person employed or engaged by any member of the Staff;
whose admission or continued presence would, in the reasonable opinion of the
Customer, be undesirable.
2.6
2.5.2
At the Customer's written request, the Contractor shall provide a list of the names and
business addresses of all persons who may require admission in connection with the
Contract to the Premises, specifying the capacities in which they are concerned with the
Contract and giving such other particulars as the Customer may reasonably request.
2.5.3
The Contractor's Staff, engaged within the boundaries of the Premises, shall comply with
such rules, regulations and requirements (including those relating to security
arrangements) as may be in force from time to time and notified in advance to the
Contractor for the conduct of personnel when at or within the boundaries of those
Premises.
2.5.4
If the Contractor fails to comply with Clause 2.5.2 within two (2) Months of the date of the
request then the Customer may terminate the Contract, provided always that such
termination shall not prejudice or affect any right of action or remedy which shall have
accrued or shall thereafter accrue to the Customer.
2.5.5
The decision of the Customer as to whether any person is to be refused access to the
Premises and as to whether the Contractor has failed to comply with Clause 2.5.2 shall
be final and conclusive.
2.5.6
At the Customer’s request, the Contractor shall promptly provide details of its internal
compliance policies and procedures (including policies and procedures as to dealings in
securities) to which the Staff are subject. The Contractor shall ensure that the Staff
comply with such policies and procedures at all times during the Contract Period. Where
requested to do so, the Contractor shall comply with the Staff Vetting Procedures.
Property
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2.7
2.6.1
Where the Customer issues Property free of charge to the Contractor such Property shall
be and remain the property of the Customer. The Contractor shall not in any
circumstances have a lien or any other interest on the Property and at all times the
Contractor shall possess the Property as fiduciary agent and bailee of the Customer. The
Contractor shall take all reasonable steps to ensure that the title of the Customer to the
Property and the exclusion of any such lien or other interest are brought to the notice of
all appropriate persons and shall, at the Customer's request, store the Property
separately and ensure that it is clearly identifiable as belonging to the Customer.
2.6.2
The Property shall be deemed to be in good condition when received by or on behalf of
the Contractor unless the Contractor notifies the Customer otherwise within five (5)
Working Days of receipt.
2.6.3
The Contractor shall maintain the Property in good order and condition (excluding fair
wear and tear), and shall use the Property solely in connection with the Contract and for
no other purpose without prior Approval.
2.6.4
The Contractor shall ensure the security of all the Property whilst in its possession, either
on the Premises or elsewhere during the supply of the Services, in accordance with the
Customer's reasonable security requirements as required from time to time.
2.6.5
The Contractor shall be liable for all loss of, or damage to, the Property (excluding fair
wear and tear), unless such loss or damage was caused by the Customer's Default. The
Contractor shall inform the Customer within two (2) Working Days of becoming aware of
any defects appearing in or losses or damage occurring to, the Property.
Offers of Employment
For the duration of the Contract and for a period of twelve (12) Months thereafter neither the
Customer nor the Contractor shall employ or offer employment to any of the other Party's staff or
employees who they have been in contact with during the procurement and/or the contract
management of the Services without that other Party's prior written consent. Notwithstanding the
foregoing, neither party will be prevented from running general recruitment advertising campaigns
or from offering employment to any individual who may respond to any such campaign.
3.
PAYMENT AND CONTRACT PRICE
3.1
Contract Price
3.2
3.1.1
In consideration of the Contractor's performance of its obligations under the Contract, the
Customer shall pay the Contract Price in accordance with Clause 3.2 (Payment and
VAT).
3.1.2
The Customer shall, in addition to the Contract Price and following receipt of a valid VAT
invoice, pay the Contractor a sum equal to the VAT chargeable on the value of the
Services supplied in accordance with the Contract.
Payment and VAT
3.2.1
The Customer shall pay all sums due to the Contractor within thirty (30) days of receipt of
a valid invoice, submitted in accordance with the payment profile set out in the Order
Form.
3.2.2
All invoices shall be sent to the invoice address set out in the Order Form and the
Contractor shall ensure that each invoice contains all appropriate references and a
detailed breakdown of the Services supplied and that it is supported by any other
documentation reasonably required by the Customer to substantiate the invoice.
3.2.3
The Contractor shall add VAT to the Contract Price at the prevailing rate as applicable.
3.2.4
The Contractor shall not suspend the supply of the Services unless the Contractor is
entitled to terminate the Contract under Clause 8.2 (Termination on Default) for failure to
pay undisputed sums of money.
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3.3
3.4
Recovery of Sums Due
3.3.1
Wherever under the Contract any sum of money is recoverable from or payable by the
Contractor (including any sum which the Contractor is liable to pay to the Customer in
respect of any breach of the Contract), the Customer may unilaterally deduct that sum
from any sum then due, under the Contract.
3.3.2
Any overpayment by either Party, whether of the Contract Price or of VAT or otherwise,
shall be a sum of money recoverable by the Party who made the overpayment from the
Party in receipt of the overpayment.
3.3.3
Subject to 3.3.1 the Parties shall make any payments due to the other Party without any
deduction whether by way of set-off, counterclaim, discount, abatement or otherwise
unless the Party has a valid court order requiring an amount equal to such deduction to
be paid to it by the other Party.
3.3.4
All payments due shall be made within a reasonable time unless otherwise specified in
the Contract, in cleared funds, to such bank or building society account as the recipient
Party may from time to time direct.
Euro
3.4.1
Any requirement of Law to account for the Services in Euro (or to prepare for such
accounting) instead of and/or in addition to sterling, shall be implemented by the
Contractor free of charge to the Customer.
3.4.2
The Customer shall provide all reasonable assistance to facilitate compliance with Clause
3.4.1 by the Contractor.
4.
STATUTORY OBLIGATIONS AND REGULATIONS
4.1
Prevention of Corruption
4.2
4.3
4.1.1
The Contractor shall not offer or give, or agree to give, to any employee, agent, servant or
representative of the Customer or any other public body or person employed by or on
behalf of the Customer any gift or consideration of any kind which could act as an
inducement or reward for doing, refraining from doing, or for having done or refrained
from doing, any act in relation to the Contract or any other contract with the Customer or
any other public body or person employed by or on behalf of the Customer, or for
showing or refraining from showing favour or disfavour to any person in relation to any
such contract.
4.1.2
The Contractor warrants that it has not paid commission or agreed to pay commission to
the Customer or any other public body or any person employed by or on behalf of the
Customer or any other public body in connection with the Contract.
4.1.3
If the Contractor, its Staff or any person acting on the Contractor's behalf, engages in
conduct prohibited by Clauses 4.1.1 or 4.1.2, the Customer may terminate the Contract
with immediate effect by giving notice in writing to the Contractor.
Discrimination
4.2.1
The Contractor shall not unlawfully discriminate within the meaning and scope of any
applicable law, enactment, order or regulation relating to discrimination (whether in race,
gender, religion, disability, sexual orientation, age or otherwise).
4.2.2
The Contractor shall take reasonable steps to secure the observance of Clause 4.2.1 by
all servants, employees or agents of the Contractor employed in the execution of the
Contract.
The Contracts (Rights of Third Parties) Act 1999
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Save as provided in Clause 6.1.1 and 7.1.3, a person who is not a Party to the Contract has no
right under the Contracts (Rights of Third Parties) Act 1999 to enforce any of its provisions which,
expressly or by implication, confer a benefit on him, without the prior written agreement of the
Parties, but this does not affect any right or remedy of any person which exists or is available
otherwise than pursuant to that Act and does not apply to the Crown.
4.4
Environmental Requirements
The Contractor shall, when working on the Premises, perform its obligations under the Contract in
accordance with the Customer's environmental policy, which is to conserve energy, water, wood,
paper 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.
4.5
Health and Safety
4.5.1
The Contractor shall promptly notify the Customer of any health and safety hazards which
may arise in connection with the performance of its obligations under the Contract. The
Customer shall promptly notify the Contractor of any health and safety hazards which
may exist or arise at the Premises and which may affect the Contractor in the
performance of its obligations under the Contract.
4.5.2
While on the Premises, the Contractor shall comply with any health and safety measures
implemented by the Customer in respect of Staff and other persons working there.
4.5.3
The Contractor shall notify the Customer immediately in the event of any incident
occurring in the performance of its obligations under the Contract on the Premises where
that incident causes any personal injury or damage to property which could give rise to
personal injury.
4.5.4
The Contractor shall comply with the requirements of the Health and Safety at Work etc.
Act 1974 and any other acts, orders, regulations and codes of practice relating to health
and safety, which may apply to Staff and other persons working on the Premises in the
performance of its obligations under the Contract.
4.5.5
The Contractor shall ensure that its health and safety policy statement (as required by the
Health and Safety at Work etc Act 1974) is made available to the Customer on request.
5.
PROTECTION OF INFORMATION
5.1
Customer Data
5.1.1
The Contractor shall not delete or remove any proprietary notices contained within or
relating to the Customer Data.
5.1.2
The Contractor shall not store, copy, disclose, or use the Customer 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 Customer.
5.1.3
To the extent that Customer Data is held and/or processed by the Contractor, the
Contractor shall supply that Customer Data to the Customer as requested by the
Customer in the format reasonably specified by the Customer.
5.1.4
The Contractor shall take reasonable commercial steps to preserve the integrity of
Customer Data and preventing the corruption or loss of Customer Data.
5.1.5
The Contractor shall perform secure back-ups of all Customer Data and shall ensure that
copies of up-to-date back-ups are securely stored off-site. The Contractor shall ensure
that the Customer Data so backed-up are available to the Customer upon reasonable
request.
5.1.6
The Contractor shall ensure that any system on which the Contractor holds any Customer
Data, including back-up data, is a secure system.
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5.1.7
5.1.8
5.2
If the Customer Data is corrupted, lost or sufficiently degraded as a result of the
Contractor's Default so as to be unusable, the Customer may:
(a)
require the Contractor (at the Contractor's expense) to restore or procure the
restoration of Customer Data and the Contractor shall do so as soon as
practicable but not later than one month; and/or
(b)
itself restore or procure the restoration of Customer 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 Customer Data has or
may become corrupted, lost or sufficiently degraded in any way for any reason, then the
Contractor shall notify the Customer immediately and inform the Customer of the
remedial action the Contractor proposes to take.
Data Protection Act
5.2.1
With respect to the parties' rights and obligations under this Contract, the parties agree
that the Customer is the Data Controller and that the Contractor is the Data Processor.
5.2.2
The Contractor shall:
(a)
take all reasonable steps to process the Personal Data only in accordance with
lawful and reasonable instructions from the Customer (which may be specific
instructions or instructions of a general nature as set out in this Contract or as
otherwise notified by the Customer 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;
(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 have regard to the nature of the Personal Data which is to be
protected, the state of technological development and the cost of implementing
such measures;
(d)
use reasonable endeavours to engage suitably skilled and qualified staff
Contractor Personnel who have access to the Personal Data;
(e)
obtain prior written consent from the Customer in order to transfer the Personal
Data to anyone other than its Affiliates for the provision of the Services;
(f)
ensure that all Contractor Personnel 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 clause 5.2;
(g)
ensure that none of Contractor Personnel publish, disclose or divulge any of the
Personal Data to any third party except where expressly authorised under this
Agreement, or unless directed in writing to do so by the Customer or required to
do so by Law;
(h)
notify the Customer within ten (10) Working Days if it receives:
(i)
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a request from a Data Subject whose Personal Data is being
processed by the Contractor under this Agreement, to have access to
that person's Personal Data; or
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(ii)
(i)
5.3
a complaint or request relating to the Customer's obligations under the
DPA;
provide the Customer with full cooperation and assistance in relation to any
complaint or request made, including by:
(i)
providing the Customer with full details of the complaint or request;
(ii)
complying with a data access request within the relevant timescales
set out in the DPA and in accordance with the Customer's instructions;
(iii)
providing the Customer with any Personal Data it holds in relation to a
Data Subject (within the timescales required by the Customer); and
(iv)
providing the Customer with any information requested by the
Customer in relation to the complaint or request;
(j)
permit the Customer or the Customer representative (subject to reasonable and
appropriate confidentiality undertakings), and where legally permissible to
inspect and audit, in accordance with clause 5.8 (Records and Audit Access),
the Contractor's data Processing activities (and/or those of its agents,
subsidiaries and Sub-contractors) and comply with all reasonable requests or
directions by the Customer to enable the Customer 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
reasonably required by the Customer); and
(l)
not process Personal Data outside the European Economic Area, except where
such transfer
(i)
is in compliance with the obligations of a Data Controller under the
Eighth Data Protection Principle set out in Schedule 1 of the DPA by
providing an adequate level of protection to any Personal Data that is
transferred; and
(ii)
complies with any reasonable instructions notified to it by the
Customer.
5.2.3
The Contractor shall comply at all times with the DPA in connection with its data privacy
obligations under this Agreement and shall not perform its obligations under this Contract
in such a way as to cause the Customer to breach any of its applicable obligations under
the DPA.
5.2.4
For the purposes of Clause 5.1, the terms "Data Controller", "Data Processor", “Data
Subject”, "Personal Data", "Process" and "Processing" shall have the meanings
prescribed under the DPA.
5.2.5
The provisions of this Clause shall apply during the Contract Period and indefinitely after
its expiry.
Official Secrets Acts 1911 to 1989, Section 182 of the Finance Act 1989
5.3.1
5.3.2
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Where applicable, the Contractor shall comply with and shall ensure that its Staff comply
with, the applicable provisions of:
(a)
the Official Secrets Acts 1911 to 1989; and
(b)
Section 182 of the Finance Act 1989.
In the event that the Contractor or its Staff fail to comply with this Clause, the Customer
reserves the right to terminate the Contract by giving notice in writing to the Contractor.
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5.4
Confidential Information
5.4.1
5.4.2
Except to the extent set out in this clause or where disclosure is expressly permitted
elsewhere in this Contract, each party shall:
(a)
treat the other party's Confidential Information as confidential and safeguard it
accordingly; and
(b)
not disclose the other party's Confidential Information to any other person
without the owner's prior written consent.
Clause 5.4.1 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 clause 5.5 (Freedom of Information) or
such disclosure is required by order of a court or such disclosure is made
pursuant to an order, requirement or request of a regulatory body having
authority over the Contractor;
(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 to the reasonable knowledge
of the party making the disclosure after making all reasonable enquires 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 Agreement; or
(e)
it is independently developed without access to the other party's Confidential
Information.
5.4.3
The Contractor may only disclose the Customer's Confidential Information to the
Contractor Personnel who are involved in the provision of the Services and who need to
know the information, and shall ensure that such Contractor Personnel are aware of
these obligations and are bound by appropriate obligations or duties of confidentiality.
5.4.4
The Contractor shall not, and shall procure that the Contractor Personnel do not, use any
of the Customer's Confidential Information received otherwise than for the purposes of
this Contract.
5.4.5
Nothing in this Contract shall prevent the Customer from disclosing the Contractor's
Confidential Information, including the Management Information obtained under 6.7:
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(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 a 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.
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5.5
5.4.6
The Customer 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 clause 5.4.5 is made aware
of the Customer's obligations of confidentiality.
5.4.7
Nothing in this clause 5.4 shall prevent either party from using any techniques, ideas or
know-how gained during the performance of the Contract in the course of its normal
business to the extent that this use does not result in a disclosure of the other party's
Confidential Information or an infringement of IPR. The Contractor will owe no duty of
care to the Customer if the Customer uses the Contractor's work and advice for a
purpose other than that for which the work or advice was provided even if such use is in
the Customer's ordinary course of business.
5.4.8
The parties acknowledge that, except for any information which is exempt from disclosure
in accordance with the provisions of the FOIA, the content of this Contract is not
Confidential Information. The Customer shall be responsible for determining in its
absolute discretion whether any of the content of this Contract is exempt from disclosure
in accordance with the provisions of the FOIA. Notwithstanding any other term of this
Contract, the Contractor hereby gives his consent for the Customer to publish the
Contract in its entirety (but with any information which is exempt from disclosure in
accordance with the provisions of the FOIA redacted), including from time to time agreed
changes to the Contract, to the general public and the Contractor agrees to assist and
cooperate with the Customer to enable it to publish the Contract. Where the Customer is
considering disclosure of the terms of engagement of the Contractor and/or any advice or
opinion provided by it to the Customer, the Customer will, where it is reasonably
practicable to do so, consult with the Contractor prior to such disclosure.
5.4.9
The obligations imposed on the Customer in this clause 5.4 shall apply during the
Contract Period and for 12 (twelve) months following the expiry or termination of this
Contract.
Freedom of Information
5.5.1
The Contractor acknowledges that the Customer is subject to the requirements of the
FOIA and the Environmental Information Regulations and shall assist and cooperate with
the Customer, within such timescales as the Customer may reasonably specify, to enable
the Customer to comply with its Information disclosure obligations.
5.5.2
The Contractor shall:
(a)
transfer to the Customer all Requests for Information that it receives as soon as
practicable and in any event within two (2) Working Days of receiving a Request
for Information;
(b)
provide the Customer with a copy of all Information relating to the Services in
its possession, or power which it holds on the Customer’s behalf in the form that
the Customer requires within five (5) Working Days (or such other longer period
as the Customer may reasonably specify) of the Customer's request; and
(c)
provide all necessary assistance as reasonably requested by the Customer to
enable the Customer 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.
5.5.3
The Customer shall be responsible for determining in its absolute discretion and
notwithstanding any other provision in this Agreement or any other agreement whether
the Commercially Sensitive Information and/or any other Information is exempt from
disclosure in accordance with the provisions of the FOIA or the Environmental Information
Regulations.
5.5.4
In no event shall the Contractor respond directly to a Request for Information unless
expressly authorised to do so by the Customer or failure to do so would constitute a
breach of Law.
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5.5.5
5.5.6
5.6
5.7
5.8
The Contractor acknowledges that (notwithstanding the provisions of Clause 5.5.2) the
Customer may, acting in accordance with the Secretary of State for 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 clause 5.4.2 applies the Customer shall, in accordance with
any recommendations of the Code, take reasonable steps, where appropriate, to give the
Contractor advanced notice, or failing that, to draw the disclosure to the Contractor’s
attention after any such disclosure.
The Contractor acknowledges that the inclusion of Commercially Sensitive Information in
Schedule 7 is indicative only and that the Customer may be obliged to disclose it in
accordance with clause 5.5.5.
Publicity, Media and Official Enquiries
5.6.1
Unless the information included in the press announcements or publicised is already in
the public domain, the Contractor shall not make any press announcements in respect of,
or publicise, the Contract or any of the Services in any way without the Customer's prior
Approval and shall take all reasonable steps to ensure that its servants, employees and
directors comply with this Clause.
5.6.2
The Customer shall be entitled to publicise the Contract in accordance with any legal
obligation upon the Customer, including any examination of the Contract by the Auditor.
5.6.3
The Contractor shall not do anything or cause anything to be done, which may damage
the reputation of the Customer or bring the Customer into disrepute.
Security
5.7.1
The Customer shall be responsible for maintaining the security of the Premises in
accordance with its standard security requirements. The Contractor shall comply with all
reasonable security requirements of the Customer while on the Premises and shall
ensure that all Staff comply with such requirements.
5.7.2
The Customer shall provide the Contractor upon request copies of its written security
procedures and shall afford the Contractor upon request an opportunity to inspect its
physical security arrangements.
Intellectual Property Rights
5.8.1
Save as granted elsewhere under the Contract, neither the Customer nor the Contractor
shall acquire any right, title or interest in the other's Pre-Existing IPR.
5.8.2
The Contractor shall not, and shall procure that the Staff shall not, (except when
necessary for the performance of the Contract) without prior Approval, use or disclose
any Pre-Existing IPR of the Customer or the Project Specific IPRs to any third party
unless required to do so by any Law or order of a court or pursuant to an order,
requirement or request of a regulatory body having authority over the Contractor.
5.8.3
All title to and all rights and interest in the Project Specific IPRs shall vest in the
Contractor. The Contractor hereby agrees to grant to the Customer, a world-wide, royaltyfree, irrevocable, perpetual licence of any of the Project Specific IPRs and/or shall
procure that any third party owner of the Project Specific IPRs grants a licence on the
same basis sufficient to enable the Authority to have the full and unrestricted benefit of
the Services and/or any Deliverable (both referred to as the “IP Licence”).
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5.8.4
The Contractor agrees and acknowledges that the Customer shall have the right to
disclose the Project Specific IPRs (in full or in part) which are the subject of the IP
Licence to any and all relevant third parties (including without limitation its Permitted
Recipients and to any Replacement Provider) who reasonably require access to the same
and allow the Customer to sub-licence the IP Licence at no cost to such third parties.
5.8.5
The Customer hereby grants to the Contractor a non-exclusive, revocable, non assignable licence to use the Customer Pre-Existing IPR during the Contract Period for
the sole purpose of enabling the Contractor to provide the Services.
5.8.6
The Contractor warrants that the performance by the Customer of the Services and/or the
possession or use by the Customer of the Project Specific IPRs and/or the Deliverables
does not and will not infringe a third party's Intellectual Property Rights ("Infringement")
5.8.7
If a claim of Infringement is made in connection with the Contract or in the reasonable
opinion of the Contractor is likely to be made, the Contractor shall immediately notify the
Customer and, at its own expense and subject to the consent of the Customer (not to be
unreasonably withheld or delayed), use its best endeavours to:(a)
modify the relevant part of the Services or the Deliverables without reducing the
performance or functionality of the same, or substitute alternative services or
deliverables of equivalent performance and functionality, so as to avoid the
Infringement or the alleged Infringement, provided that the provisions herein
shall apply with any necessary changes to such modified services or
deliverables or to the substitute services or deliverables; or
(b)
procure a licence to use and supply the Services or the Deliverables, which are
the subject of the alleged Infringement, on terms which are acceptable to the
Customer,
and in the event that the Contractor is unable to comply with Clauses 5.8.7(a) or 5.8.7(b)
within 20 Working Days of receipt of the Contractor's notification, the Customer may (a)
terminate the Contract with immediate effect by notice in writing and the Contractor shall,
upon demand, refund the Customer with all monies paid in respect of the Services or
Deliverable that is subject to the Infringement claim; or (b) terminate the performance by
the Contractor of the relevant Service.
5.9
Records and Audit Access
5.9.1
The Contractor shall keep and maintain until six (6) years after the end of the
Period (or as long a period as may be agreed between the Parties), full and
records and accounts of the operation of the Contract including the Services
under it, the Call-Off Contracts entered into with the Contracting Authority
amounts paid by each Contracting Authority.
5.9.2
The Contractor shall keep the records and accounts referred to in Clause 5.9.1 above in
accordance with Good Industry Practice.
5.9.3
The Contractor shall to the extent legally permissible or to the extent that such access will
not breach any undertaking of confidentiality to a third party, on reasonable notice afford
the Customer, the Customer's representatives and/or the Auditor such access to such
records and accounts as may be reasonably required by the Customer from time to time.
5.9.4
The Contractor shall to the extent legally permissible on request provide such records
and accounts (together with copies of the Contractor's published accounts) during the
Contract Period and for a period of six (6) years after the expiry of the Contract Period to
the Customer and/or the Auditor.
5.9.5
The Customer shall use reasonable endeavours to ensure that the conduct of each audit
does not unreasonably disrupt the Contractor or delay the provision of the Services, save
insofar as the Contractor accepts and acknowledges that control over the conduct of
audits carried out by the Auditor is outside of the control of the Customer.
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5.9.6
5.9.7
The Contractor shall on demand provide the Auditor with all reasonable co-operation and
assistance in relation to each audit, including:
(a)
all information reasonably requested by the Customer within the scope of the
audit;
(b)
reasonable access to sites controlled by the Contractor (save where such
access reasonably needs to be restricted to protect confidential information)
and to Equipment used in the provision of the Services; and
(c)
reasonable access to Staff.
The Parties agree that they shall bear their own respective costs and expenses incurred
in respect of compliance with their obligations under this Clause 5.9, unless the audit
reveals a material Default by the Contractor in which case the Contractor shall reimburse
the Customer for the Customer's reasonable costs incurred in relation to the audit.
6.
CONTROL OF THE CONTRACT
6.1
Transfer and Sub-Contracting
6.1.1
The Contractor shall not assign, novate or in any other way dispose of the Contract or
any part of it without prior Approval provided that the Contractor shall be entitled to
transfer all its rights and obligations under the Contract to an affiliate to which
substantially all the assets and business of the Contractor have been or are to be
transferred and, from the date of such transfer, references to the Contractor shall be read
as references to such affiliate.. The Contractor shall not be entitled to sub-contract any of
its rights or obligations under this Contract save that the Contractor may provide its
services through or in conjunction with one or more of its affiliates as notified to the
Customer from time to time, provided always that the Contractor shall remain responsible
for all acts and omissions of any sub-contractor and nothing under this Clause 6.1.1 shall
absolve the Contractor from its obligations to the Customer under this Agreement and
references in the Agreement to the Contractor shall, save where the context otherwise
requires, include any such affiliates.
6.1.2
The Customer may assign, novate or otherwise dispose of its rights and obligations under
the Contract or any part thereof to:(a)
any Contracting Authority; or
(b)
any other body established by the Crown or under statute in order substantially
to perform any of the functions that had previously been performed by the
Customer; or
(c)
any private sector body which substantially performs the functions that had
previously been performed by the Customer,
(each a “Transferee”) provided that any such assignment, novation or other disposal
shall not (i) increase the burden of the Contractor's obligations under the Contract and (ii)
be subject to the completion of such procedures (including, without limitation, in respect
of client identification and anti money laundering) as the Provider is required to operate
by Law.
6.1.3
Any change in the legal status of the Customer such that it ceases to be a Contracting
Authority shall not affect the validity of the Contract. In such circumstances, the Contract
shall bind and inure to the benefit of any successor body to the Customer.
6.1.4
The Customer may disclose to any Transferee any Confidential Information which relates
to the performance of the Contractor's obligations under the Contract provided that such
Transferee has agreed in writing to treat such Confidential Information in identical fashion
to the Customer under the Contract.
6.1.5
Each Party shall at its own cost and expense carry out, or use all reasonable endeavours
to ensure the carrying out of, whatever further actions (including the execution of further
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documents) the other Party reasonably requires from time to time for the purpose of
giving that other Party the full benefit of the provisions of the Contract.
6.2
6.3
Waiver
6.2.1
The failure of either Party to insist upon strict performance of any provision of the
Contract, or the failure of either Party to exercise, or any delay in exercising, any right or
remedy shall not constitute a waiver of that right or remedy and shall not cause a
diminution of the obligations established by the Contract.
6.2.2
No waiver shall be effective unless it is expressly stated to be a waiver and
communicated to the other Party in writing in accordance with Clause 1.7 (Notices).
6.2.3
A waiver of any right or remedy arising from a breach of the Contract shall not constitute
a waiver of any right or remedy arising from any other or subsequent breach of the
Contract.
Variation
6.3.1
Subject to the provisions of this Clause 6.3, the Customer may request a variation to the
Services ordered provided that such variation does not amount to a material change to
the Order. Such a change is hereinafter called a "Variation".
6.3.2
The Customer may request a Variation by completing and sending the Variation form
attached at Appendix 1 ("the Variation Form") to the Contractor giving sufficient
information for the Contractor to assess the extent of the Variation and whether any
change to the Contract Price is required in order to implement the Variation may be
incurred. The Contractor shall respond to a request for a Variation within the time limits
specified in the Variation Form. Such time limits shall be reasonable having regard to the
nature of the Variation and the availability of the Contractor
6.3.3
In the event that the Contractor is unable to provide the Variation to the Services or where
the Parties are unable to agree a change to the Contract Price, the Customer may:-
6.3.4
6.4
6.5
(a)
allow the Contractor to continue to perform its obligations under the Contract
without the Variation; or
(b)
terminate the Contract with immediate effect, except where the Contractor has
already delivered part or all of the Services in accordance with the Order Form
or where the Contractor can show evidence of substantial work being carried
out to fulfil the Order, and in such a case the Parties shall attempt to agree upon
a resolution to the matter. Where a resolution cannot be reached, the matter
shall be dealt with under the Dispute Resolution Procedure detailed at Clause
9.2.
If the Parties agree to the Variation and any variation in the Contract Price, the Contractor
shall carry out such Variation and be bound by the same provisions so far as is
applicable, as though such Variation was stated in the Contract.
Severability
6.4.1
If any provision of the Contract is held invalid, illegal or unenforceable for any reason,
such provision shall be severed and the remainder of the provisions hereof shall continue
in full force and effect as if the Contract had been executed with the invalid, illegal or
unenforceable provision eliminated.
6.4.2
In the event of a holding of invalidity so fundamental as to prevent the accomplishment of
the purpose of the Contract, the Customer and the Contractor shall immediately
commence good faith negotiations to remedy such invalidity.
Remedies in the event of inadequate performance
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6.5.1
Where a complaint is received about the standard of Services or about the manner in
which any Services have been supplied or work has been performed or about the
materials or procedures used or about any other matter connected with the performance
of the Contractor's obligations under the Contract, then the Contractor shall take all
reasonable steps to investigate the complaint. The Customer may, in its sole discretion,
uphold the complaint, or take further action in accordance with Clause 8.2 (Termination
on Default) of the Contract.
6.5.2
In the event that the Customer is of the reasonable opinion that there has been a material
breach of the Contract by the Contractor, then the Customer may, without prejudice to its
rights under Clause 8.2 (Termination on Default), do any of the following:
(a)
without terminating the Contract, itself supply or procure the supply of all or part
of the Services until such time as the Contractor shall have demonstrated to the
reasonable satisfaction of the Customer that the Contractor will once more be
able to supply all or such part of the Services in accordance with the Contract;
(b)
without terminating the whole of the Contract, terminate the Contract in respect
of part of the Services only (whereupon a corresponding reduction in the
Contract Price shall be made) and thereafter itself supply or procure a third
party to supply such part of the Services;
(c)
terminate, in accordance with Clause 8.2 (Termination on Default), the whole of
the Contract if the Contractor has committed a Default that is a material breach
of the Contract; and/or
(d)
charge the Contractor for and the Contractor shall pay any costs reasonably
incurred by the Customer (including any reasonable administration costs) in
respect of the supply of any part of the Services by the Customer or a third
party to the extent that such costs exceed the payment which would otherwise
have been payable to the Contractor for such part of the Services and provided
that the Customer uses its reasonable endeavours to mitigate any additional
expenditure in obtaining replacement Services.
6.5.3
If the Contractor fails to supply any of the Services in accordance with the provisions of
the Contract and such failure is capable of remedy, then the Customer shall instruct the
Contractor to remedy the failure and the Contractor shall at its own cost and expense
remedy such failure (and any damage resulting from such failure) within ten (10) Working
Days of the Customer's instructions or such other period of time as the Customer may
direct.
6.5.4
In the event that the Contractor:
(a)
fails to comply with Clause 6.5.3 above and the failure is materially adverse to
the interests of the Customer or prevents the Customer from discharging a
statutory duty; or
(b)
persistently fails to comply with Clause 6.5.3 above;
the Customer may terminate the Contract with immediate effect by giving the Contractor
notice in writing.
6.6
Cumulative Remedies
Except as otherwise expressly provided by the Contract, all remedies available to either Party for
breach of the Contract are cumulative and may be exercised concurrently or separately, and the
exercise of any one remedy shall not be deemed an election of such remedy to the exclusion of
other remedies.
6.7
Monitoring of Contract Performance
6.7.1
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The Contractor shall comply with the monitoring arrangements set out in the Order Form
including, but not limited to, providing such data and information as the Contractor may
be reasonably required to produce under the Contract.
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6.8
6.7.2
The Contractor agrees that the Customer may provide the Cabinet Office with information
relating to the Services procured and any payments made under the Contract.
6.7.3
Upon receipt of any Management Information supplied by the Contractor in response to a
request under 6.7.1 or 6.7.2 above or receipt of information provided by the Customer to
the Cabinet Office under 6.7.3, the Customer and the Contractor hereby consent to the
Cabinet Office:
(a)
storing and analysing the Management Information and producing statistics;
and
(b)
sharing the Management Information or any statistics produced using the
Management Information, with any other Contracting Authority
6.7.4
In the event that the Cabinet Office shares the Management Information or information
provided under this clause 6.7 any Contracting Authority receiving the Management
Information shall be informed of the confidential nature of that information and shall be
requested not to disclose it to any person who is not a Contracting Authority (unless
required by law).
6.7.5
The Customer may make reasonable changes to the Management Information which the
Contractor is required to supply and shall give the Contractor at least one (1) Month’s
written notice of any changes.
Extension of Initial Contract Period
Subject to satisfactory performance of its obligations under the Contract by the Contractor during
the Initial Contract Period, the Customer may, by giving written notice to the Contractor not less
than one (1) Month(s) prior to the last day of the Initial Contract Period, extend the Contract for any
further period specified in the Order Form. The provisions of the Contract will apply throughout any
such extended period.
7.
LIABILITIES
7.1
Liability, Indemnity and Insurance
7.1.1
Nothing in the Contract shall be construed to limit or exclude either Party's liability for:
(a)
death or personal injury caused by its negligence; and
(b)
Fraud or fraudulent misrepresentation
7.1.2
Neither the Contractor nor any other member of the Contractor’s Group (nor any of its or
their respective Relevant Persons) shall be liable to the Customer for any claim, loss,
damage, liability, cost and/or expense ("Losses") suffered by the Customer or any such
other person arising out of or related to the Contractor's obligations under this Contract
("Customer Losses") except for Customer Losses that arise out of any action or failure
to act by the Contractor that constitutes either (i) fraud, wilful default or gross negligence
on the part of the Contractor; or (ii) a material breach of this Contract.
7.1.3
The Customer agrees to indemnify and hold harmless the Contractor, each member of
the Contractor's Group and their Relevant Persons (each an "Indemnified Person" and
cumulatively, "Indemnified Persons") against any Losses as incurred (including, without
limitation, all reasonable fees and disbursements of legal advisors)arising out of any
actual or proposed or completed Services or the Contractor's engagement hereunder;
provided, however, there shall be excluded from such indemnification any such Losses to
the extent that they arise out of any action or failure to act by the Contractor that is found
in a final judicial determination to either constitute (i) fraud, wilful default, or gross
negligence on the part of the Contractor or (ii) a material breach of this Contract.
7.1.4
For the purposes of this Clause 7, "Contractor's Group" shall mean the Contractor and
its affiliates and subsidiary undertakings from time to time; "Relevant Persons" shall
mean, in relation to a member of the Contractor's Group, the directors, officers, and
employees of that member and any successor or assign of such persons and "parent
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undertaking" and "subsidiary undertaking" shall each be construed in accordance with
section 1162 of the Companies Act 2006.
7.1.5
7.1.6
7.2
Subject to Clause 7.1.1 and notwithstanding Clause 7.1.2. in no event shall either Party
be liable to the other for any:
(a)
loss of profits;
(b)
loss of business;
(c)
loss of revenue;
(d)
loss of or damage to goodwill;
(e)
loss of savings (whether anticipated or otherwise); and/or
(f)
any indirect or consequential loss or damage.
The Customer may, amongst other things, recover as a direct loss:
(a)
any additional operational and/or administrative expenses arising from the
Contractor's Default;
(b)
any wasted expenditure or charges rendered unnecessary and/or incurred by
the Customer arising from the Contractor's Default; and
(c)
the additional cost of procuring replacement services for the remainder of the
Contract Period following termination of the Contract as a result of a Default by
the Contractor.
7.1.7
The Contractor shall effect and maintain with a reputable insurance company a policy or
policies of insurance providing an adequate level of cover in respect of all reasonably
insurable risks which may be incurred by the Contractor, arising out of the Contractor's
performance of its 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 six (6) years following the expiration or earlier termination of the Contract
save that the Customer acknowledges that the Contractor's professional indemnity
insurance may not necessarily cover all risks arising from claims of breach of contract or
claims arising under this Contract.
7.1.8
The Contractor shall hold employer's liability insurance in respect of Staff in accordance
with any legal requirement from time to time in force.
7.1.9
The Contractor shall give the Customer, on request, copies of all insurance policies
referred to in this clause 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.
7.1.10
If, for whatever reason, the Contractor fails to give effect to and maintain the insurances
required by the provisions of the Contract the Customer may make alternative
arrangements to protect its interests and may recover the costs of such arrangements
from the Contractor.
7.1.11
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 amount of insurance cover that will be adequate to enable the Contractor
to satisfy any liability referred to in Clause 7.1.2.
Professional Indemnity
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The Contractor shall effect and maintain appropriate professional indemnity insurance cover during
the Contract Period. To comply with its obligations under this clause and as a minimum, the
Contractor shall ensure professional indemnity insurance held by the Contractor has a limit of
indemnity of not less than £1 million (one million pounds) for each individual claim or such higher
limit as the Customer may reasonably require (and as required by law) from time to time. Such
insurance shall be maintained for a minimum of 6 (six) years following the expiration or earlier
termination of the Contract.
7.3
Taxation, National Insurance and Employment Liability
The Parties acknowledge and agree that the Contract constitutes a contract for the provision of
Services and not a contract of employment. The Contractor shall at all times indemnify the
Customer and keep the Customer indemnified in full from and against all claims, proceedings,
actions, damages, costs, expenses, liabilities and demands whatsoever and howsoever arising by
reason of any circumstances whereby the Customer is alleged or determined to have been
assumed or imposed with the liability or responsibility for the Staff (or any of them) as an employer
of the Staff and/or any liability or responsibility to Her Majesty’s Revenue or Customs (“HMRC”) as
an employer of the Staff whether during the Contract Period or arising from termination or expiry of
the Contract.
7.4
Warranties and Representations
7.4.1
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The Contractor warrants and represents 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;
(b)
the Contract is executed by a duly authorised representative of the Contractor;
(c)
in entering the Contract it has not committed any Fraud;
(d)
as at the Commencement Date, all information, statements and representations
contained in the Tender for the Services are true, accurate and not misleading
save as may have been specifically disclosed in writing to the Customer prior to
execution of the Contract and it will advise the Customer of any fact, matter or
circumstance of which it may become aware which would render any such
information, statement or representation to be false or misleading;
(e)
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 its assets which will or might affect its ability
to perform its obligations under the Contract;
(f)
it is not subject to any contractual obligation, compliance with which is likely to
have an adverse affect on its ability to perform its obligations under the
Contract;
(g)
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;
(h)
it owns, has obtained or so far as it is aware is able to obtain, valid licences for
all Intellectual Property Rights that are necessary for the performance of its
obligations under the Contract;
(i)
the Services shall be provided and carried out by appropriately experienced,
qualified and trained Staff in accordance with Good Industry Practice;
(j)
in the three (3) years prior to the date of the Contract:
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(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; and
(ii)
it has been in full compliance with all applicable securities laws and
regulations in the jurisdiction in which it is established; and
(iii)
it has not done or omitted to do anything with respect to its financial
accounting or reporting which could have an adverse effect on its
position as an ongoing business concern or its ability to fulfil its
obligations under the Contract.
8.
DEFAULT, DISRUPTION AND TERMINATION
8.1
Termination on insolvency and change of control
8.1.1
8.1.2
Invitation to
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The Customer may terminate the Contract with immediate effect by giving notice in
writing where the Contractor is a company and in respect of the Contractor:
(a)
a proposal is made for a voluntary arrangement within Part I of the Insolvency
Act 1986 or of any other composition scheme or arrangement with, or
assignment for the benefit of, its creditors; or
(b)
a shareholders' meeting is convened for the purpose of considering a resolution
that it be wound up or a resolution for its winding-up is passed (other than as
part of, and exclusively for the purpose of, a bona fide reconstruction or
amalgamation); or
(c)
a petition is presented for its winding up (which is not dismissed within 14 days
of its service) or an application is made for the appointment of a provisional
liquidator or a creditors' meeting is convened pursuant to Section 98 of the
Insolvency Act 1986; or
(d)
a receiver, administrative receiver or similar officer is appointed over the whole
or any part of its business or assets; or
(e)
an application order is made either for the appointment of an administrator or for
an administration order (which is not dismissed or withdrawn within 14 days of
its being made), an administrator is appointed, or notice of intention to appoint
an administrator is given; or
(f)
it is or becomes insolvent within the meaning of Section 123 of the Insolvency
Act 1986; or
(g)
being a "small company" within the meaning of Section 247(3) of the
Companies Act 1985, a moratorium comes into force pursuant to Schedule A1
of the Insolvency Act 1986; or
(h)
any event similar to those listed in Clause 8.1.1(a) – 8.1.1(g) occurs under the
law of any other jurisdiction.
The Customer may terminate the Contract with immediate effect by notice in writing
where the Contractor is an individual and:
(a)
an application for an interim order is made pursuant to Sections 252-253 of the
Insolvency Act 1986 or a proposal is made for any composition scheme or
arrangement with, or assignment for the benefit of, the Contractor's creditors; or
(b)
a petition is presented and not dismissed within 14 days or order made for the
Contractor's bankruptcy; or
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8.1.3
(c)
a receiver, or similar officer is appointed over the whole or any part of the
Contractor's assets or a person becomes entitled to appoint a receiver, or
similar officer over the whole or any part of his assets; or
(d)
the Contractor is unable to pay his debts or has no reasonable prospect of
doing so, in either case within the meaning of Section 268 of the Insolvency Act
1986; or
(e)
a creditor or encumbrancer attaches or takes possession of, or a distress,
execution, sequestration or other such process is levied or enforced on or sued
against, the whole or any part of the Contractor's assets and such attachment or
process is not discharged within 14 days; or
(f)
he dies or is adjudged incapable of managing his affairs within the meaning of
Part VII of the Mental Health Act 1983; or
(g)
the Contractor suspends or ceases, or threatens to suspend or cease, to carry
on all or a substantial part of his business.
The Contractor shall notify the Customer immediately if the Contractor undergoes a
change of control within the meaning of section 416 of the Income and Corporation Taxes
Act 1988 ("Change of Control"). The Customer may terminate the Contract by notice in
writing with immediate effect within six months of:
(a)
being notified that a Change of Control has occurred; or
(b)
where no notification has been made, the date that the Customer becomes
aware of the Change of Control;
but shall not be permitted to terminate where an Approval was granted prior to the
Change of Control.
8.2
Termination on Default
8.2.1
The Customer may terminate the Contract by giving written notice to the Contractor with
immediate effect if the Contractor commits a Default that was not caused by the
preceding act or omission, directly or indirectly of the Customer and if:
(a)
the Contractor has not remedied the Default to the reasonable satisfaction of
the Customer within ten (10) Working Days, or such other period as may be
specified by the Customer, after issue of a written notice specifying the Default
and requesting it to be remedied; or
(b)
the Default is not, in the reasonable opinion of the Customer, capable of
remedy; or
(c)
the Default is a material breach of the Contract.
8.2.2
In the event that through any Default of the Contractor, data transmitted or processed in
connection with the Contract is either lost or sufficiently degraded as to be unusable, the
Contractor shall be liable for the cost of reconstitution of that data and shall reimburse the
Customer in respect of any charge levied for its transmission and any other costs charged
in connection with such Default.
8.2.3
If the Customer fails to pay the Contractor undisputed sums of money when due, the
Contractor shall notify the Customer in writing of such failure to pay. If the Customer fails
to pay such undisputed sums within ninety (90) Working Days of the date of such written
notice, the Contractor may terminate the Contract in writing with immediate effect, save
that such right of termination shall not apply where the failure to pay is due to the
Customer exercising its rights under Clause 3.3 (Recovery of Sums Due).
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8.3
Break
The Customer shall have the right to terminate the Contract at any time by giving one (1) Month’s
written notice to the Contractor.
8.4
Framework Agreement
The Customer may terminate the Contract by giving written notice to the Contractor with immediate
effect if the Framework Agreement is terminated for any reason whatsoever.
8.5
Consequences of Expiry or Termination
8.5.1
Subject to 8.5.2 below, notwithstanding the service of a notice to terminate the Contract,
the Parties shall continue to fulfil their obligations under the Contract until the date of
expiry or termination of the Contract or such other date as required under this Clause 8.
8.5.2
Where the Customer terminates the Contract under Clause 8.2 (Termination on Default)
and then makes other arrangements for the supply of Services, the Customer may
recover from the Contractor the cost reasonably incurred of making those other
arrangements and any additional expenditure incurred by the Customer throughout the
remainder of the Contract Period. The Customer shall take all reasonable steps to
mitigate such additional expenditure. Where the Contract is terminated under Clause 8.2
(Termination on Default), no further payments shall be payable by the Customer to the
Contractor until the Customer has established the final cost of making those other
arrangements.
8.5.3
Subject to Clause 7, where the Customer terminates the Contract under Clause 8.3
(Break), the Customer shall indemnify the Contractor against any commitments, liabilities
or expenditure which would otherwise represent an unavoidable loss by the Contractor by
reason of the termination of the Contract, provided that the Contractor takes all
reasonable steps to mitigate such loss. Where the Contractor holds insurance, the
Contractor shall reduce its unavoidable costs by any insurance sums available. The
Contractor shall submit a fully itemised and costed list of such loss, with supporting
evidence, of losses reasonably and actually incurred by the Contractor as a result of
termination under Clause 8.3 (Break).
8.5.4
The Customer shall not be liable under Clause 8.5.3 to pay any sum which:
8.5.5
Invitation to
Tender
(a)
was claimable under insurance held by the Contractor, and the Contractor has
failed to make a claim on its insurance, or has failed to make a claim in
accordance with the procedural requirements of the insurance policy; or
(b)
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
Contract had not been terminated prior to the expiry of the Contract Period.
Save as otherwise expressly provided in the Contract:
(a)
termination or expiry of the Contract shall be without prejudice to any rights,
remedies or obligations accrued under the Contract prior to termination or
expiration and nothing in the Contract shall prejudice the right of either Party to
recover any amount outstanding at such termination or expiry; and
(b)
termination of the Contract shall not affect the continuing rights, remedies or
obligations of the Customer or the Contractor under Clauses 1.9 (Conflicts of
Interest), 3.2 (Payment and VAT), 3.3 (Recovery of Sums Due), 4.1 (Prevention
of Corruption), 5.1 (Data Protection Act), 5.2 (Official Secrets Acts 1911 to
1989, Section 182 of the Finance Act 1989), 5.3 (Confidential Information), 5.4
(Freedom of Information), 5.7 (Intellectual Property Rights), 5.8 (Records and
Audit Access), 6.6 (Cumulative Remedies), 7.1 (Liability, Indemnity and
Insurance), 7.2 (Professional Indemnity), 8.5 (Consequences of Expiry or
Termination), 8.7 (Recovery upon Termination) and 9.1 (Governing Law and
Jurisdiction).
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8.6
Disruption
8.6.1
The Contractor shall take reasonable care to ensure that in the performance of its
obligations under the Contract it does not disrupt the operations of the Customer, its
employees or any other contractor employed by the Customer.
8.6.2
The Contractor shall not be held liable for a delay and/or failure to fulfil its duties and
obligations under the Contract to the extent to which such failure can be directly attributed
to an act or omission of the Customer under this Contract and was the sole cause of the
Contractor’s failure or delay. The Contractor shall be required to notify the Customer as
soon as it becomes aware of any such act or omission, which it reasonably determines
would affect the fulfilment of any of its duties and obligations under this Contract.
Notwithstanding the foregoing, the Contractor agrees to fulfil its duties and obligations to
the fullest extent possible given the Customer’s act or omission and shall comply with all
its duties and obligations under the Contract as soon as it becomes able to do so.
8.6.3
The Contractor shall immediately inform the Customer of any actual or potential industrial
action, whether such action be by their own employees or others, which affects or might
affect its ability at any time to perform its obligations under the Contract.
8.6.4
In the event of industrial action by the Staff, the Contractor shall seek the Customer's
Approval to its proposals for the continuance of the supply of the Services in accordance
with its obligations under the Contract.
8.6.5
If the Contractor's proposals referred to in Clause 8.6.3 are considered insufficient or
unacceptable by the Customer acting reasonably then the Contract may be terminated
with immediate effect by the Customer by notice in writing.
8.6.6
If the Contractor is temporarily unable to fulfil the requirements of the Contract owing to
disruption of normal business by direction of the Customer, an appropriate allowance by
way of extension of time will be approved by the Customer. In addition, the Customer will
reimburse any additional expense reasonably incurred by the Contractor as a direct result
of such disruption.
8.7
Recovery upon Termination
8.7.1
On the termination of the Contract for any reason, the Contractor shall:
8.7.2
(a)
promptly return to the Customer all Personal Data and Customer’s Pre-Existing
IPR’s in its possession or in which was obtained or produced in the course of
providing the Services;
(b)
promptly deliver to the Customer all Property (including materials, documents,
information and access keys) provided to the Contractor under clause 2.2. Such
property shall be handed back in good working order (allowance shall be made for
reasonable wear and tear) provided that the Contractor shall be entitled to keep one
copy of the Confidential Information which it is required to retain by applicable law,
regulation or its internal compliance procedures and further that the Contractor shall
not be obliged to delete documents which have been stored pursuant to its electronic
back-up archiving procedures;
(c)
assist and co-operate with the Customer to ensure an orderly transition of the
provision of the Services to the Replacement Contractor and/or the completion of
any work in progress.
(d)
promptly provide all information concerning the provision of the Services which may
reasonably be requested by the Customer for the purposes of adequately
understanding the manner in which the Services have been provided or for the
purpose of allowing the Customer or the Replacement Contractor to conduct due
diligence.
If the Contractor fails to comply with clause 8.7.1 (a) and (b), the Client may recover possession
thereof and either (i) the Contractor grants a licence to the Client or its appointed agents to enter
(for the purposes of such recovery) any premises of the Contractor or its permitted suppliers where
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any such items may be held or (ii) where regulatory or compliance restrictions placed upon the
Contractor result in it not being reasonably practicable for the Contractor to grant a licence in
accordance with (i) arranges the recovery to the Customer, and/or alternative access for the
Customer to those items specified in Clause 8.7.1.
8.7.3
Where the end of the Contract Period arises due to the Contractor’s Default, the Contractor shall
provide all reasonable assistance under clause 8.7.1 (c) and (d) free of charge. Otherwise, the
Customer shall pay the Contractor’s reasonable costs of providing the assistance and the
Contractor shall take all reasonable steps to mitigate such costs.
8.7.4
At the end of the Contract Period (howsoever arising) the licence granted pursuant to Clause 5.8.5
shall automatically terminate without the need to serve notice.
8.8
Force Majeure
8.8.1
Neither Party shall be liable to the other Party for any delay in performing, or failure to
perform, its obligations under the Contract (other than a payment of money) to the extent
that such delay or failure is a result of Force Majeure. Notwithstanding the foregoing,
each Party shall use all reasonable endeavours to continue to perform its obligations
under the Contract for the duration of such Force Majeure. However, if such Force
Majeure prevents either Party from performing its material obligations under the Contract
for a period in excess of six (6) Months, either Party may terminate the Contract with
immediate effect by notice in writing.
8.8.2
Any failure or delay by the Contractor in performing its obligations under the Contract
which results from any failure or delay by an agent supplier shall be regarded as due to
Force Majeure only if that agent or supplier is itself impeded by Force Majeure from
complying with an obligation to the Contractor.
8.8.3
If either Party becomes aware of a Force Majeure event or occurrence which gives rise
to, or is likely to give rise to, any such failure or delay on its part as described in Clause
8.8.1 it shall immediately notify the other by the most expeditious method then available
and shall inform the other of the period during which it is estimated that such failure or
delay shall continue.
9.
DISPUTES AND LAW
9.1
Governing Law and Jurisdiction
The Contract and any non-contractual obligations arising out of or in relation to it shall be governed
by and interpreted in accordance with English law and the Parties submit to the exclusive
jurisdiction of the English courts to settle any disputes arising out of or in connection with this
Agreement (including, without limitation, disputes relating to any non-contractual obligations) and
that accordingly any proceedings arising out of or in connection with this Contract shall be brought
in such Courts..
9.2
Dispute Resolution
9.2.1
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 within twenty (20) Working Days of
either Party notifying the other of the dispute and such efforts shall involve the escalation
of the dispute to the finance director (or equivalent) of each Party.
9.2.2
Nothing in this dispute resolution procedure shall prevent the Parties from seeking from
any court of competent jurisdiction an interim order restraining the other Party from doing
any act or compelling the other Party to do any act.
9.2.3
If the dispute cannot be resolved by the Parties pursuant to Clause 9.2.1 the dispute may,
by agreement between the Parties, be referred to mediation pursuant to the procedure
set out in Clause 9.2.5.
9.2.4
The obligations of the Parties under the Contract shall not cease, or be suspended or
delayed by the reference of a dispute to mediation (or arbitration) and the Parties shall
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comply fully with the requirements of the Contract at all times save for where expressly
provided otherwise in this Contract.
9.2.5
Invitation to
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The procedure for mediation and consequential provisions relating to mediation are as
follows:
(a)
a neutral adviser or mediator ("the Mediator") shall be chosen by agreement
between the Parties or, if they are unable to agree upon a Mediator within 10
Working Days after a request by one Party to the other or if the Mediator agreed
upon is unable or unwilling to act, either Party shall within 10 Working Days
from the date of the proposal to appoint a Mediator or within 10 Working Days
of notice to either Party that he is unable or unwilling to act, apply to the Centre
for Dispute Resolution (“CEDR”) to appoint a Mediator;
(b)
the Parties shall within 10 Working Days of the appointment of the Mediator
meet with him in order to agree a programme for the exchange of all relevant
information and the structure to be adopted for negotiations to be held. If
considered appropriate, the Parties may at any stage seek assistance from
CEDR to provide guidance on a suitable procedure;
(c)
unless otherwise agreed, all negotiations connected with the dispute and any
settlement agreement relating to it shall be conducted in confidence and without
prejudice to the rights of the Parties in any future proceedings;
(d)
if the Parties reach agreement on the resolution of the dispute, the agreement
shall be reduced to writing and shall be binding on the Parties once it is signed
by their duly authorised representatives;
(e)
failing agreement, either of the Parties may invite the Mediator to provide a nonbinding but informative written opinion. Such an opinion shall be provided on a
without prejudice basis and shall not be used in evidence in any proceedings
relating to the Contract without the prior written consent of both Parties; and
(f)
if the Parties fail to reach agreement in the structured negotiations within sixty
(60) Working Days of the Mediator being appointed, or such longer period as
may be agreed by the Parties, then any dispute or difference between them
may be referred to the courts.
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APPENDIX 1
VARIATION FORM
Call-Off Terms and Conditions for Services
No of Order Form being varied:………………………………………………………………………
Variation Form No:………………………………………………………………………………………
BETWEEN:
United Kingdom Financial Investments Limited (“UKFI”) ("the Customer")
and
[
] ("the Contractor")
1.
The Order is varied as follows:
[list details of the Variation]
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.
Authorised to sign for and on behalf of the Customer
Signature
Date
Name in Capitals
Address
Authorised to sign for and on behalf of the Contractor
Signature
Date
Name in Capitals
Address
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PROTECT [IL1]
SCHEDULE 6
COMMERCIALLY SENSITIVE INFORMATION
1. This Schedule captures Commercially Sensitive Information as advised by the Provider relating to
the service provision under the Framework Agreement.
Description
of
Sensitive Data
2.
Commercially
Rationale for the data being
deemed Commercially Sensitive
Duration that the information shall
be
deemed
Commercially
Sensitive Information.
The Call-Off Order Form will capture Commercially Sensitive Information relating to specific
Contracts as they occur.
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PROTECT [IL1]
SCHEDULE 7
FRAMEWORK AGREEMENT VARIATION PROCEDURE
1.
Introduction
1.1
This schedule details the scope of the variations permitted and the process to be followed where
the Authority proposes a variation to the Framework Agreement.
1.2
The Authority may propose a variation to the Framework Agreement under this schedule only
where the variation does not amount to a material change in the Framework Agreement or the
Services.
2.
Procedure for proposing a Variation
2.1
Except where paragraph 4 applies, the Authority may propose a variation using the procedure
contained in this paragraph 2.
2.2
In order to propose a variation, the Authority shall serve each Services Framework Provider with
written notice of the proposal to vary the Framework Agreement ("Notice of Variation").
2.3
The Notice of Variation shall contain details of the proposed variation providing sufficient
information to allow each Services Framework Provider to assess the variation.
2.4
Upon receipt of the Notice of Variation, each Services Framework Provider has 14 days to respond
in writing with any objections to the variation.
2.5
Where the Authority does not receive any written objections to the variation within the timescales
detailed in paragraph 2.4, the Authority may then serve each Services Framework Provider with a
written agreement detailing the variation to be signed and returned by each Services Framework
Provider within 14 days of receipt.
2.6
Upon receipt of a signed agreement from each Services Framework Provider, the Authority shall
notify all Services Framework Providers in writing of the commencement date of the variation.
3.
Objections to a Variation
3.1
In the event that the Authority receives one or more written objections to a variation, the Authority
may:3.1.1
withdraw the proposed variation; or
3.1.2
propose an amendment to the variation.
4.
Variations which are not permitted
4.1
In addition to the provisions contained in paragraph 1.2, the Authority may not propose any
variation which:4.1.1
may prevent one or more of the Services Framework Providers from performing its
obligations under the Framework Agreement; or
4.1.2
is in contravention of any Law.
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