Rathlin Ferry S1417305 First Tender Document

Central Procurement Directorate

Supplies & Services First Floor Clare House 303 Airport Road West Belfast BT3 9ED Tel: (028) 9081 6356 e-mail: [email protected] Date:

Dear Sir or Madam, DRD BALLYCASTLE TO RATHLIN ISLAND FERRY OPERATOR The Central Procurement Directorate (CPD), Department of Finance and Personnel, on behalf of its client, the Department for Regional Development, invites you to submit a tender offer for the above requirement. Documents relating to this invitation are: Part 1 Part 2 Part 3 Part 4

This letter of invite including Instructions for Submission of Tender Terms of Reference/Specification/Statement of Requirement Forms and certificates Conditions of Contract

Please note that you must return a signed copy of part 4, the “Forms and Certificates” and a completed copy of Part 3 “Pricing Schedule” sections of the tender pack. There is no requirement to return Part 1, Part 2 and Part 5. The closing date for submission of tenders is 3pm on Thursday 11th October 2007. Under no circumstances will late tenders be considered. CPD and the Department for Regional Development are not obliged to accept the lowest or any tender. Yours Sincerely

John McGuigan

DRD Ballycastle to Rathlin Island Ferry Operator S1417305

Contents

1.

Instructions to Tenderers

Part 1

2.

Terms of Reference

Part 2

3.

Forms and Certificates

Part 4

4.

Terms and Conditions of Contract

Part 5

Part I Instructions to Tenderers

INSTRUCTIONS TO TENDERERS 1.

Completion and Submission of Tender Documentation

The documents completed as directed should be returned preferably via the ProCon system i.

Responses can be loaded any time until 3pm on Thursday 11th October 2007. These responses can be retracted and re-submitted any time before this closing date.

ii.

When loading your response, please be aware of the speed of your Internet connection, your system configuration and general web traffic that may impact on the time taken to complete the transaction. Loading of proposals must be completed by 3pm on the closing date.

iii.

Please upload as early as possible particularly if responding on the day of closing.

Submission of Hard Copy Responses iv.

If responding manually, one hard copy of your tender and one electronic version on CD ROM must be delivered to the address below before 3pm on the closing date.

v.

If returning by post, where documentation is bulky, suppliers must ensure that the packaging is strong enough to secure the documents. Tenders may not be returned by e-mail. Envelopes or packages should bear no marks indicating the identity of the Supplier, should clearly identify the tender reference and should be returned to: Supplies and Services Division Central Procurement Directorate Clare House 303 Airport Road West Belfast BT3 9ED

vi.

Tenders sent by post should be registered or sent by Recorded Delivery.

vii.

Tenderers are advised that manually delivered Tenders can only be accepted during normal office hours, that is between 9.00 am to 5.00 pm Monday to Friday. Tenders sent by special delivery or delivered by hand will not be accepted on either weekends or on Northern Ireland Public and Statutory Holidays. If Tenders are delivered by hand an official receipt should be obtained.

viii.

Central Procurement Directorate cannot accept responsibility for postal or delivery delays.

2.

ix.

Late Tenders will not be considered.

x.

All submissions must be in the English language.

xi.

Tenders must be fully compliant with the requirements detailed in the tender documentation.

xii.

All prices entered in the pricing schedule or other documents must be exclusive of VAT and in pounds sterling.

xiii.

Tenders may also be rejected if the required information is not given at the time of tendering.

xiv.

E-Mail returns of tenders will not be accepted under any circumstances.

Economic and Financial Standing Tenderers may be required to furnish information as to economic and financial standing for assessment by Central Procurement Directorate prior to the acceptance of any Tender.

3.

Costs and Expenses Tenderers will not be entitled to claim from either Central Procurement Directorate or the Department any costs or expenses which may be incurred in preparing their Tender whether or not it is successful.

4.

Period of Validity Tenderers are required to keep their Tenders valid for acceptance for a period of ninety days from the closing date.

5.

Confidentiality Tenderers should treat the Tender offers as private and confidential between the Tenderer, the Central Procurement Directorate and the client. Tenderers should note that the Central Procurement Directorate and the Department for Regional Development, Road Service, shall use the Tender documents for the purposes of evaluation and that the Tender documents will be destroyed in line with the Central Procurement Directorate disposal schedule.

6.

Official Amendments If it is necessary for Central Procurement Directorate to amend the Tender documentation in any way, prior to receipt of Tenders, all Tenderers in receipt of documents will be notified simultaneously. If deemed appropriate, the deadline for receipt of Tenders will be extended.

7.

Environmental Benefits The Government is committed to sustainable procurement and would wish to see Tenderers adopt a positive environmental approach: http://www.sustainable-development.gov.uk/sdig/improving/contextf.htm

8.

Canvassing Any tenderer who directly or indirectly canvasses any official of Central Procurement Directorate or the Department concerning the award of contract or who directly or indirectly obtains or attempts to obtain information from such official concerning the proposed or any other tender will be disqualified. This should not, however deter any supplier seeking clarification in relation to the tender.

9.

Assumptions Tenderers must not make assumptions that either CPD or the Departments have experience of their organisation or their service provision even if on a current or previous contract. Tenderers will only be evaluated on the information provided in their response.

10.

Compliance Tenders must be submitted in accordance with these instructions. Failure to comply may result in a Tender being rejected by Central Procurement Directorate.

11.

Transfer Of Undertaking And Protection Of Employment (TUPE) Where appropriate tenderers are advised to seek their own legal advice with regard to the application of TUPE and state clearly when returning their tender documentation whether or not they have done so.

12.

Freedom of Information Act (FOIA) The Tenderer should treat the Tender documents as private and confidential between themselves and Central Procurement Directorate. Tenderers are advised that with effect from 1 January 2005 Central Procurement Directorate has incorporated a clause in its terms and conditions of contract (Clause 18) to ensure full compliance with the Freedom of Information Act. Please note that the clause states that unless an exemption provided for under the Act is applicable in relation

to any particular information, a public authority will be obliged to disclose that information in response to a request regardless of the terms of any contract. Tenderers are asked to consider if any of the information supplied in the course of this tender competition should not be disclosed because of its sensitivity. Tenderers must complete the “Freedom of Information Statement contained at Part 3 (e) “Forms and Certificates: Freedom of Information Statement” identifying which information is considered commercially sensitive and specify the reasons for its sensitivity. Central Procurement Directorate will consult with you about sensitive information before making a decision on any Freedom of Information requests received. 13.

Evaluation Criteria In order to ascertain the most economically advantageous offer, Tenders will be evaluated using the scoring frame in section 6 of the document. Following receipt, bids will be assessed against this criteria and, if deemed necessary, companies may be invited for a clarification meeting.

14.

Format of Response The technical submission must include the tenderer’s proposals to meet the requirements set out in Section 3. Tenderers must address each paragraph in Section 3 in the order in which they appear.

15.

Conflict of Interest Tenderers must confirm in their proposals that there would be no conflict or perceived conflict of interest in relation to their servicing this contract. Your attention is drawn to Clause 35.Tenderers must complete the “Conflict of Interest Declaration contained at Part 3 (F) “Forms and Certificates:” identifying any potential conflicts of interest.

16.

Performance Bond Tenderers must price for the Indemnity Performance Bond within section 4, Forms and Certificates in line with clause 29. Formal agreement of this will only be required if a bid is successful.

17.

Complaints Procedure Tenderers are advised that details of the Central Procurement Directorate “Complaints Procedure” can be found on the Central Procurement Directorate website at http://www.cpdni.gov.uk/complaints_procedure.pdf under the Central Procurement Directorate/Publications section. Tenderers should consult this document if they have concerns regarding any aspect of the procurement process.

18.

Formal Contact and Communications Tenderers should seek to clarify any points of doubt or difficulty relating to the Tender documentation before submitting their Tender. For the purposes of this contract the contact point is: -

John McGuigan Supplies and Services Division Central Procurement Directorate First Floor Clare House 303 Airport Road West Belfast BT3 9ED Tel: 028 9081 6356 E-mail: [email protected]

Part 2 Terms of Reference

1. GENERAL 1.1

Introduction

1.1.1 This document invites service operators to tender for the provision of a ferry service, which attracts a subsidy, in respect of passenger/vehicle ferry services between Rathlin Island and Ballycastle.

1.2

Background

1.2.1 Rathlin Island is Northern Ireland’s only inhabited offshore island and lies within the Moyle local government district. It is located 6 miles from the coastal town of Ballycastle, off the northeast Antrim coast of Northern Ireland and has a current resident population of around 90. 1.2.2 Rathlin Island is located within one of Northern Ireland’s main tourism areas. The island had some 16,000 visitors in 2004 [Rathlin Island Sustainable Tourism Strategy: June 2006]. Ballycastle can easily be reached by road from Belfast, Londonderry and the heart of the Province. Access to the port and to the ferry service to Rathlin Island is easy and there is considerable potential for the development of the route. 1.2.3 The current arrangement commenced in 2003 and expires at the end of March 2008. 1.2.4 The ferry is Rathlin’s lifeline and a critical part of it’s ability to attract visitors. It is attractive as a relatively cheap means of access but it almost certainly fails to meet the expectations of many visitors, in terms of quality, due to the amount of shelter provided, the design and layout of the passenger accommodation. In addition the crossing is frequently rough. 1.3

Role of the Department for Regional Development

1.3.1 The Department for Regional Development has authority under Article 99 of the Roads (NI) Order 1993 to provide a road ferry service to link Ballycastle to Rathlin for conveying vehicles, persons and goods. 1.3.2 The Department sets the fares for the service and may make bye-laws in relation to its operation and management. The Department must advertise any change to the ferry timetable. 1.4

Objectives

1.4.1 The objectives for the service are: • To maintain a 'life-line' service to Rathlin Island; • To offer a contract term for the service of 6 years; and, • To ensure that the maximum annual amount of subsidy to be made available for the support of the service is based on the most economically advantageous tender.

1.5

Assistance Available

1.5.1 The assistance available to the successful tenderer will be a subsidy towards the running costs of operating the service. This will be provided to supplement the operators’ revenues earned for running the route. 1.5.2 The Department may consider a longer term contract extending up to a maximum of 12 years if it was deemed necessary to allow an Operator to commit to capital investment for a new vessel. 1.5.3 The Department will not be offering assistance for capital expenditure for upgrading any vessels used during the period of the contract. 1.5.4 Tenderers will be encouraged to find ways of maximising the revenue opportunities and minimising the costs involved. 1.5.5 Tenderers should be aware that the service specification sets out the minimum requirements for the Rathlin Ferry route for which subsidy will be paid. The subsidy will be awarded at levels set for each year of the 6-year contract, although it is also envisaged that the terms and conditions of contract may allow for some variations of specific agreed terms to the contract. This, however, will only be for material, unforeseen or changed circumstances throughout the contract period.

1.6

Role of Moyle District Council

1.6.1 While the Rathlin Island Ferry service subsidy is currently managed by the Department the management of this contract will pass to Moyle District Council (MDC) in 2009 under the Review of Public Administration. Where this tender refers to the Department this should be read as Moyle District Council, or its successor, from 2009 onwards.

2. NOTICES AND INSTRUCTIONS 2.1

Introduction

2.1.1 Tenders are invited in accordance with the following Notices and Instructions for the provision of a Ferry service between Ballycastle and Rathlin Island. The issue of this Invitation to Tender should not be construed as a commitment by the Department to place an order as a result of the tendering exercise. Any expenditure, work or effort undertaken prior to contract award is accordingly a matter solely for the commercial judgement of the tenderer. 2.2

Purpose

2.2.1 As previously outlined, the purpose of the tendering exercise is to meet the Department's policy objectives to bring ferry services to Rathlin Island. 2.2.2 The service requirements are set out in Section 3. In preparing the service specification we have also had particular regard to the following key principles: • •

• • • •

2.3

Safety Standards - Safety of passengers and crews is a fundamental issue which under no circumstances can be compromised or diluted. Standards and Quality - Emphasis has been placed not only in accurately defining the existing level of services supplied but also on quality. Tenderers will be required to submit quality plans and set out minimum standards. Reliability - Emphasis is placed on the ability to consistently deliver the required levels of service, hence reliability is a fundamental principle. Performance - Continued high standards of punctuality and availability of ship and shore facilities. Objectivity - As many aspects of the service specification as possible must be capable of specific measurement. Impartiality - In the evaluation of bids and treatment of tenderers.

Scope

2.3.1 The tender covers the passenger and vehicle service between Ballycastle and Rathlin harbours. The tender includes the provision of efficient and safe services, fully compliant with all the current safety requirements and supported by appropriate on board and shore facilities adequate for handling passengers. The services are described in Section 3 and the attached Annexes. 2.3.2 Subsidy will be made available for the provision of a service to convey vehicles, persons and goods. 2.3.3 Tenderers are encouraged to develop the service provided over and above the minimum service requirements which add value to the service. 2.3.5 Tenderers will particularly wish to note that in considering ways to generate extra revenue, there are restrictions in place in relation to the number of vehicles which can travel to Rathlin (see Annex 6). However, it would be possible for tenderers to

enhance the passenger element of the service. If using passenger/vehicle ferries this might mean running this in passenger-only mode, for certain services. 2.3.6 The scope of the project is limited to the market for passenger and vehicle ferry services (including freight) on the Ballycastle to Rathlin Island route. Tenderers, however, may wish to consider the scope for generating alternative revenue streams over and above the minimum service requirements, or add value beyond the publicly supported part of the project. This would be considered as part of a potential tender on condition that it does not prejudice, or risk the operational success, of the operator in meeting the requirements of this specification.

2.4

Information Disclaimer

2.4.1 Information regarding the type and pattern of carryings on Ballycastle-Rathlin Island, as provided by the current operator, is included as Annex 1. 2.4.2 The above, together with any historical data, statistics or other information regarding passenger, vehicle and freight traffic, is for tenderers to fully satisfy themselves as to the accuracy and relevance. 2.4.3 While every effort has been and will be made to provide accurate information, tenderers will wish to note that the Department does not guarantee the accuracy of the information provided and it is provided for guidance only. It is the responsibility of the tenderer to verify and interpret the information provided. Tenders will be accepted by the Department on the understanding that the tenderer is deemed to have satisfied himself on the scope of the requirement from the information provided. 2.5

Subsidy and Clawback

2.5.1 Tenderers are required to provide figures for each of the six years under the following headings; anticipated revenue, costs, profit and subsidy required. These figures will provide the ‘base’ case for each year of the contract. 2.5.2 The subsidy will be fixed by the base case for the six year period and tenderers should take note of this when they prepare their costs. 2.5.3 In the event that revenue exceeds the amount set out in the base case then a profit sharing system will operate. The operator will be allowed to retain 50% of the increased revenue with the remaining 50% being used to reduce the subsidy payment. This reduction in subsidy payment will be achieved in a future payment cycle and will be shown as a reduction in a future payment.

2.6

Constraints, Risks and other key points to note

2.6.1 The main legal and financial constraints on the key elements of service provision are outlined in this document.

2.6.2 Tenderers must be acutely aware of the high importance the Department attaches to the safety of ferry services and to the requirement for tenderers to meet all applicable safety requirements for vessels, passengers and crew in operating the services. While specific safety requirements are explicitly referred to in Section 3, it is for the operator to ensure that it complies with all relevant national and international legislation, Conventions, Directives, as well as Industry Codes and Standards. Tender submissions should include a clear statement confirming that the requirements of this paragraph will be met. 2.6.3 The Department has analysed a number of the main risks associated with the tender exercise and has allocated the way in which these would be expected to fall between the operator and the Department. Table 1 below lists some of the risks and the Department's indicative analysis of their allocation. However, this table does not represent a commitment by the Department to accept certain risks.

Table 1 ALLOCATION OF SOME KEY RISKS Operator Department Moyle Shared/ Comment DC Negotiable Vessel design Vessel construction/leasing Commissioning risk Operational risk(vessels) Policy risk

Policy risk not involving legislation

Demand for volume risks

Risk that demand for service does not match the levels planned

Maintenance risk for harbours Maintenance risk for vessels Fuel Costs

This will be triggered by a dramatic rise in fuel costs due to unforeseen circumstances

Inflation risk Legislative risks

Depends on circumstances. Corporation tax, etc. would fall to operator. MCA Regs may be either depending on the

circumstances Change in requirements of transport policy

For example, a change in EC or Govt policy in relation to subsidisation of shipping operators

Incorrect cost or time estimates for providing services Failure to meet specified service levels Force majeure Industrial action

For contractor’s staff in relation to CHFS contract. See section on relief events in relation to industrial action outwith the contractor's control

Failure to meet performance standards Capital expenditure Vessels

The operator responsible for provision of vessels.

Capital expenditure – ports TUPE costs at start of contract

Tenderers are asked to bid as if TUPE applies and therefore subsidy will reflect this.

Fares 2.6.4 Fares increases will be decided by the Department and published along with timetables on the operator's website and on ships, in port offices and in waiting rooms (see also Section 3). 2.6.5 The level of fares charged will be set by the Department in the light of market conditions and level of subsidy. 2.6.6 The Department currently operates discounted fares on the Rathlin Ferry for the following groups (see annex 5 for full list): • •

Residents of Rathlin Island, who are in possession of a valid Residents Permit; Children;

• •

Disabled car; and, Translink SmartPass Card Holders.

2.6.7 The above discounted fares are offered as part of the Rathlin Ferry Discounted Fares Scheme, which are not part of the Northern Ireland Concessionary Scheme, but are an approved scheme for the ferry service and forms part of the subsidy provided by the Department. Fare discounts for these groups will be re-imbursed on presentation of a properly vouched ticketing record of journeys made. 2.6.8 The contractor will be required to publish summer and winter timetables annually. These should be published no later than November (in respect of summer timetables) and July (in respect of winter timetables).

Payments 2.6.9

The subsidy will normally be divided into 12 equal monthly instalments on an annual basis. Additional payments or deductions triggered by a material change will be made as and when necessary.

2.6.10 Based on current estimated timetables, the subsidy contract is likely to be awarded

in Autumn 2007 and for the contact to begin on 1 April 2008. When completing contracts with the successful tenderer a firm start date will be finalised. 2.6.11 The Department may consider a request from the supplier for a larger proportion of

the subsidy to paid at the commencement of the contract to offset mobilisation costs. 2.7 Contract and Compliance Legal Jurisdiction 2.7.1 The basis of the formal grant agreement with the successful operator will be Section 99 of the Roads (NI) Order 1993.

2.8

Allocation of Costs

2.8.1 The contractor will be responsible for all costs arising out of the introduction of the service, the operation loading discharging, mooring and unmooring and upkeep of any vessel and the provision of any replacement vessel when required. Tenderers will bear their own tender cost. 2.8.2 The vessels tenderers propose using will have to be suitable for berthing at the existing harbour facilities at Ballycastle and Rathlin Island. Moyle District council propose extending the current facilities at Ballycastle in the event of a new ferry service being put in place between Ballycastle and Campelltown. Tenderers should satisfy themselves of the details of the details of any planned changes and that any planned change to the current harbour, planned by Moyle D.C. at the time of the

tender, will not adversely affect their ability to provide services between Ballycastle and Rathlin Island. 2.8.3 The costs of managing and maintaining the harbour facilities falls to Moyle District Council. It will be for Moyle District Council to charge harbour dues as appropriate. It will be for tenderers to establish detailed arrangements for the operation of any particular vessel at the harbours involved. 2.9

Allocation of Responsibility

2.9.1 The Department will make the arrangements for payment of the subsidy. 2.9.2 The contractor will be responsible for all aspects of the ferry operation, including the upkeep, manning, operation, loading and discharge of any vessel, the mooring and unmooring, the ticketing, embarkation, carriage and disembarkation of passengers and freight. It is the responsibility of tenderers to satisfy themselves that any vessel proposed is compatible with existing berths and harbour facilities. 2.10

Suitability of Vessels

2.10.1 Tenderers should investigate and satisfy themselves as to the compatibility of any vessels proposed with existing piers and slipways, and arrangements for passenger boarding and disembarkation. In this respect the sea and tidal conditions which can prevail at the berth in Ballycastle and Rathlin should be taken into account when considering the suitability of any vessel proposed for the route. 2.10.2 Tenderers should note however, the key constraint that any vessel would have to be capable of use in all reasonable conditions at the existing harbours without the need for additional investment, and in time for service commencement. The contractor is responsible for ensuring the minimum service is provided. 2.10.3 The Department does not specify the number of vessels to be used, or that the same vessel has to be used throughout the period of the contract. Provided that any vessel to be used meets the service requirements of the contract, then the contractor has flexibility in deciding on the vessel to be used. The Department does, however, specify that a vessel should be based in Rathlin overnight to facilitate its use in an emergency. 2.10.4 The size of any vessels proposed is a matter for the contractor. The vessels should ensure reasonably comfortable crossing for passengers, taking into account the likely weather conditions. This has to take into account the all year round sea conditions on the route. 2.10.5 Tenderers, however, will have to demonstrate how the vessel provision they are suggesting will meet the existing carryings for passengers and vehicles. Full details of any vessel(s) proposed, therefore, should be provided in their technical submission. This should include particulars of where and when the vessel(s) were built, the port of registry, the previous names, service speed and consumption and carrying capacity. A copy of the current passenger certificate and loadline certificate together with the general arrangement drawing must be provided for each vessel

proposed. In addition each vessel’s Flag/port state inspection record covering the last two years of operation should be provided. 2.10.6 The Department may wish to inspect any vessels as part of the tender evaluation process. Details of where this can be done should be provided by tenderers in their technical submission.

3.

SERVICE SPECIFICATION

3.1

Introduction This section provides a specification of the output and core requirements for the Rathlin-Ballycastle Island ferry service. The requirements outlined in this section deal with the minimum service levels and standards together with the maximum fares for the service. The contractor is responsible for ensuring that the service specification requirements are achieved in full.

3.2

ESSENTIAL REQUIREMENTS The department considers that the following elements are essential requirements which must be provided as part of proposals for the service. Tenderers who do not wish to provide these elements will be deemed to have submitted a non-compliant bid and will not have their proposals considered any further. Minimum Carrying Capacity

3.2.1 This service operates between Ballycastle and Rathlin Island. 3.2.2 There are up to 14 scheduled return sailings per week in the winter timetable and this doubles for the summer timetable. There is a single return sailing on Christmas day. 3.2.3 The minimum standard can be met by services which carry vehicles, passengers and freight together or by separate services for passengers and for vehicles and freight. Vehicles should be carried on a roll on roll off vessel. 3.2.4 There is also a requirement for carrying livestock and hazardous goods under the category of freight.

3.2.5 The contractor must provide a passenger and vehicle ferry service. Tenderers must specify the precise passenger facilities being made available, and the capacity of the vessel for vehicles. Historical details of passengers and freight carried is available at Annex 1. 3.2.6 The period of operation must be 12 months of each year. A service must be provided on each and every day of the year, subject to agreed conditions and exemptions. 3.2.7 The requirement is for a minimum of 2 daily return trips between Ballycastle and Rathlin Island. The service should be capable of carrying a minimum of 350 passengers, 50 cars and 5 commercial vehicles per week in the Winter months and 2800 passengers, 70 cars and 5 commercial vehicles per week in the Summer.

The Route 3.2.8 It is the responsibility of tenderers to ensure that the vessel(s) they propose, and any relief vessel, are suitable for use on the route and can maintain the schedule in normal operating conditions. 3.2.9 Tender submissions should contain a clear statement to the effect that the vessels proposed are considered suitable for use on the route. Vessels 3.2.10 The subsidy is also to be sufficient to enable the successful tenderer to provide vessels as appropriate for the contract period. The tenderer is responsible for identifying vessels capable of delivering the service set out in this section for the duration of the contract. 3.2.11 Tenderers are required to provide sufficient vessels to deliver all of the requirements of this tender including the services detailed and relief vessel requirements. The tenderer must ensure that alternative vessels are available to cover periods of planned maintenance and unplanned breakdowns etc. to deliver the minimum service level. 3.2.12 Tenderers are encouraged to be innovative in their provision of vessels to secure the most efficient and quality service for ferry users. Innovation will be regarded as how tenderers can improve the potential for revenue growth and improved quality. Emergency Services 3.2.13 The contractor should co-operate with local Health, Fire and Police services and cooperate to provide emergency call outs if required. It will be for the operator to agree any terms and conditions with the relevant contracting party for any services. Tenderers should include a clear statement detailing what arrangements they intend to put in place. Freight 3.2.14 The operator should provide for, and guarantee, the carriage of freight. It is, however, a matter for tenderers to determine the precise level of freight capacity which would be made available. This should be detailed by the tenderer. 3.2.15 Loose freight is also carried, such as parcel deliveries. Details should be given on how this service will be provided.

Livestock 3.2.16 There is a requirement to carry livestock to and from the island. It is the operators responsibility to ensure that livestock is carried in accordance with the appropriate regulations and requirements. 3.2.17 Livestock, and vehicles containing meat or fish products, should be separated from passengers’ vehicles as far as practicable. It is the operator’s responsibility to determine the means by which livestock is transported. Hazardous Goods 3.2.18 There is a requirement to ship dangerous goods to and from Rathlin. The operator must ensure that dangerous goods are carried in compliance with all relevant legislation. Tenderers will be required to give details of how the requirements of the applicable regulations would be met. Ship Boarding Practices 3.2.19 The operator must ensure that, as a minimum, current procedures surrounding the safe boarding of passengers are continued. Language 3.2.20 The contractor shall ensure that crew are able to communicate with passengers and each other in English (the principal language of the passengers carried) to meet the requirements of the ISM code and of STCW 95 3.2.21 The contractor shall particularly ensure that crew and shore staff who deal directly with users of the services are proficient in English. Utilisation of Port Assets 3.2.22 The Contractor shall negotiate terms of use for port assets with Moyle District Council. The contractor is responsible for providing any services in respect of mooring and unmooring. The contractor shall be responsible for ensuring appropriate staff are employed for the purpose if necessary. 3.2.23 Moyle District Council will be responsible for providing a harbour, harbour facilities including a passenger terminal in Ballycastle, means of access to and from the vessel and suitable berths from which to operate for both Ballycastle and Rathlin Island. Responsibility for maintenance of the harbour facilities will rest with the harbour authority. 3.2.24 Tenderers should note that neither the Department nor Moyle District Council envisage providing for any significant investment in upgrading or improving the current berths. It is the responsibility of the tenderer to satisfy itself that the vessel proposed is compatible with existing berths and harbour facilities.

3.2.25 Responsibility for all mooring, unmooring, marshalling, loading and unloading of passengers and vehicles will be the responsibility of the successful tenderer as will be the manning of ticketing, reservations and other shore based facilities. 3.2.26 It will be for tenderers to negotiate their own harbour dues, etc. with the Council. Tenderers will need to assess what is necessary in terms of staffing to provide shore services and to make appropriate arrangements to provide this. 3.2.27 Tenderers should confirm that they have reached agreement with Moyle District Council on the matter of access and of harbour dues in respect of vessels passengers and freight. 3.2.28 The contractor shall be responsible (as part of this contract) for the activities associated with the day-to-day vessel/port interface operations. This will include mooring, ship security unmooring, marshalling, loading and unloading of passengers, (and vehicles, freight, and livestock where carried) along with the manning of ticketing, reservations and other shore-based facilities. 3.2.29 The contractor should state how they intend to comply with all relevant legislation, rules and regulations, to include Health and Safety Regulations, Maritime and Aviation Security Act and the Port Marine Safety Code as applicable. 3.3

Compliance with Operational Regulations

3.3.1 The statutory framework for regulating the safety standards of ferries in UK waters is administered by the Maritime and Coastguard Agency (MCA). It is essential that tenderers comply with applicable Merchant Shipping legislation, codes and guidance as applied by the Maritime and Coastguard Agency 3.3.2 The successful tenderer will be responsible for the day-to-day activities and operations covering port activities and therefore will be required to comply with all relevant rules and regulations including Health & Safety at Work Regulations enforced by the Health and Safety Executive and the Port Marine Safety Code as applicable. Tenderers shall provide the following information: the name of the Director responsible for Health and Safety, and a copy of the company's Health and Safety Manual. 3.3.3 The Department requires tenderers to demonstrate how they can meet all relevant safety requirements for vessel operations and in relation to crew and passenger safety on board. Tenderers must supply the name and CV of the Designated Person.

3.4

Operations

Monitoring of Operations 3.4.1 The Department will monitor the contractor’s performance against the requirements of the specification and the Contractor’s other obligations under the contract. The Department will conduct whatever audits it feels are required. The contractor shall

co-operate in these arrangements and provide accurate auditable information to the Department. This will enable such audit to be carried out to the Department’s required standards. Further information is given in Annex 7. Safety of Operations 3.4.2 The safety of passengers and crew must not be compromised or diluted. Accordingly, it is a requirement that vessels utilised on the route are managed and operated in a manner that consistently provides the highest standards of safety, effective pollution prevention and quality of service. The contractor shall, therefore, ensure compliance with all applicable International Conventions, EC Council Directives and Regulations, and National Regulations and ensure that relevant industry codes, guidance and standards are fully taken into account. 3.4.3 The contractor shall comply with all applicable Merchant Shipping Legislation enforced by the MCA. The contractor shall ensure that the vessels to be used on the service, and all matters concerning their operation, comply with the relevant UK and EC legislation for passenger, or passenger ro-ro ships.

Financial Guarantee 3.4.4 The Department will require a Financial Guarantee which indemnifies the Department and offsets the cost of re-tendering in the event the operator becomes incapable of fulfilling the contract. This will be to a maximum of £50,000. Insurance 3.4.5 The operator will be responsible for providing demonstrable evidence that all the necessary insurances are in place prior to the award of the contract and for procurement. Thereafter copies of policy renewals on the specified date shall be submitted to the Department. 3.4.6 Under no circumstances shall the operator be allowed to provide the services without appropriate insurance being in place. All associated premiums, calls and deductibles will be for the operator's account.

3.5

The Route

Relief Vessels 3.5.1 The contractor will be required to provide for relief capacity to cover scheduled maintenance, dry dockings, unforeseen breakdowns and to ensure continuity of service to meet the minimum standard. In the case of unforeseen breakdowns the relief vessel must provide the minimum passenger standards for up to three days after which the relief vessel must meet the minimum standard as above. It is the contractor’s responsibility to provide all service and relief vessels for the duration of the contract.

3.5.2 The tenderer must specify the arrangements made and response times for fleet relief. These arrangements should cover both periods of planned overhauls and periods during which the vessel is unable to provide the service in unforeseen circumstances such as breakdowns or damage. Timetables 3.5.3 The timetable for the service is determined by the operator in consultation with users. Any changes to the timetable must be notified to the Department at least 4 weeks in advance to allow for public notification by advertisement. 3.5.4 It should be noted that after having fulfilled the necessary consultation requirements, the contractor may propose to the Department alterations to the existing timetables, providing consultation has been carried out with users. 3.5.5 The current timetable is included as Annexes 2 and 3. This timetable is based both on demand and the fact that the current ferry requires 45 minutes to make the crossing. If the crossing time was reduced then it may be possible, and economically viable, to include extra sailings during the summer months. 3.5.6 The current summer and winter timetables are to be delivered as the minimum level of service and will not be varied without the approval of the Department. The current period for summer timetables is to be observed throughout the contract, i.e. summer timetables will operate from the start of the Easter school holidays or Good Friday of the Easter weekend, whichever is earlier, until the end of the schools’ halfterm break in October (usually the third Saturday in October each year). The winter timetable will operate the remainder of the year, i.e. from the third Sunday in October until the last Thursday before Easter or the last day before the start of the Easter school holidays, whichever is earlier. 3.5.7 The islanders have expressed a desire for the timetable to commence earlier in the morning to facilitate daily commuting to/from the island.

Ticketing and Information 3.5.8 The contractor is responsible for the arrangements in respect of passenger booking and for the issue of tickets. 3.5.9 The contractor will be required to provide facilities so that reservations, sales and credit card payments can be made locally. The contractor will be required to provide ticketing facilities from at least the same locations as are available now.

Service Vessels (Safety, Operation and Standards) 3.5.10 The contractor will be fully responsible for the safe and efficient operation of the vessels to be used on the route. The Department will not be part of, or bear any risks, relating to any charter arrangements which the operator may have in place with the owners of vessels, which they may lease for use on the route. Any vessel

provided must be suitable for service on the route and must be certificated in accordance with applicable regulations. 3.5.11 Any vessel provided must be capable of entering and leaving the existing facilities or planned facilities at the harbours of Ballycastle and Rathlin, manoeuvring on and off and working at the berths without assistance in normal operating conditions.

3.5.12 Tenderers must confirm that any vessel to be used in providing the designated service will be registered under the flag of the United Kingdom or other Member State within the European Economic Area.

Disabled Access 3.5.13 The contractor must consider and make suitable arrangements for disabled access to and from any vessel. In doing so, the guidelines issued by the international maritime organisation in respect of the carriage of elderly and disabled passengers, should be taken into account and complied with where possible. Where constraints of design with an existing vessel prevent full compliance the closest possible alternative should be achieved. Such constraints and alternatives must be detailed in the tenderer’s technical submission. Tenderers should pay particular attention to the harbours at Ballycastle and Rathlin when considering the suitability of any vessel for the embarkation and disembarkation of elderly or disabled passengers. Performance Regime and Users’ Charter 3.5.14 The performance regime will monitor the reliability and punctuality of the service. Monitoring will be on a rolling four-week basis to enable any problems to be picked up and dealt with quickly (although cancellations must be notified immediately). The regime uses a mix of reduction in subsidy and, for more serious defaults, the dispute resolution procedure, which may result in termination of contract. It should be noted that the regime provides for cancellations and delays due to relief events such as poor weather conditions. This ensures that safety should never be compromised to avoid penalties. 3.5.15 The contractor shall devise and publish a Users Charter which will be subject to the approval of the Department and will cover issues such as on-board facilities, cleanliness, staff conduct and the way in which complaints are to be dealt with. 3.5.16 Performance figures must be made publicly available by the operator and displayed in port offices, on-board vessels and on the website. The contractor shall also be subject to spot checks and audit by the Department (or the Department's appointed auditors) from time to time.

3.6

DESIRABLE REQUIREMENTS These requirements are features that the department would like to see incorporated in the service delivery. They will be marked (see section 5) on how far they meet the requirement and are weighted according to importance.

Unscheduled Special Events 3.6.1 In addition to the sailings specified in the relevant timetables, the contractor is required to respond to certain unscheduled special events, such as weddings or cultural events, which temporarily create higher levels of demand on the route. Such chartered sailing should be available at an advertised cost. They will not qualify for additional subsidy support.

Integrated Transport 3.6.2 The Department seeks to encourage integrated transport links where possible. Tenderers are encouraged to contact providers of connecting transport services in considering the most effective timetabling. Consultation with Users 3.6.3 The contractor shall consult with ferry users at regular intervals on seasonal timetables and other issues which have a direct impact on ferry services.

Marketing and Website 3.6.4 At present the details of the Ballycastle to Rathlin Island ferry service are incorporated in the CalMac website. The Department considers that the ferry service should have a separate website giving appropriate information. Tenderers should show in their proposal what they propose in relation to the development of a website. 3.6.5 Leaflets and posters in addition to some radio advertising have been used to promote the ferry service. Tenderers should include a marketing plan as part of any proposal.

4.

COSTED BIDS

4.1

Introduction

Costed bids should identify the costs allocated to each of the headings detailed below. All costs should be shown. Brief explanatory notes may be added by bidders. Costs should be tabulated and shown year by year for the planned six years of the contract’s duration commencing on 1 April 2008. 4.2 Cost Headings Shore Staff Costs 4.2.1 There are currently five staff employed at Ballycastle to manage the ferry service on a day to day basis. You should detail all costs associated with the employment of these members of staff. Staff Overheads 4.2.2 This should include items such as uniforms, training costs and anything else which is associated with employment of staff. Vessel Running Costs 4.2.3 Vessel running costs should be detailed and broken down into various headings which should include: Fuel & Lub Oil; running repairs; routine maintenance, stores and finance or charter costs. Docking and Survey costs should also be detailed within the bid. Crew Costs 4.2.4 There are currently eight crew members employed to operated the Ferry on a shift pattern. You should detail all costs associated with the employment of these and any additional members of staff you may be proposing. Marketing 4.2.5 Costs associated with the proposed marketing plan and the expected return on same should be detailed. Relief Vessel 4.2.6 The cost of providing the relief vessel should be provided. Operators should state whether the costs are in respect of the ongoing availability of the vessel, or whether they only apply when the vessel is used. Indemnity Performance Bond 4.2.7 This figured should be incorporated into the bid and be clearly and separately itemised.

Support services 4.2.8 This should include terminal operating costs, utilities and plant costs in addition to administration, finance and communications. Bidders should also include any proportion of head office costs which will be allocated to this operation. Other Costs 4.2.9 Any other anticipated costs not included in the above headings should be detailed here. Estimated Revenue 4.2.10 There has been a steady growth in passengers on the ferry service and a different vessel(s) may provide a opportunity for increasing revenue. Bidders should give details of their estimated revenue and the basis on which they have calculated these figures. 4.2.11 Bidders should assume an annual fares increase of 3% per annum for the duration of the contract. Profit 4.2.12 Bidders should state the figure they have included for profit in their costs. Subsidy 4.2.13 Having calculated running costs, revenue and profit, bidders should set out the amount of subsidy which they feel will be required to enable them to provide this service. Start up costs 4.2.14 Bidders may have costs associated with the commencement of this service. These costs should be detailed along with the period over which they will be recovered.

5.

BIDDING PROCESS

5.1

Timetable for Tendering

5.1.1 The project timetable envisages the contract commencing on 1 April 2008 although this may be subject to change. Key dates for the tendering process are as follows: • • • • • 5.2

Issue Statement of Requirement – Aug 07 Receive Proposals – October 07 Site visits – October 07 Award Contract – November 07 New Service commences – 1 April 08

Guidelines for Submitting a Compliant Bid

5.2.1 As a direct response to this document, tenderers must provide a single proposal for the operation of the services. 5.2.2 A financial plan should be prepared using the format set out in section 4 of this document. 5.2.3 The Department will consider the information provided in the proposal in response to this document and will reach an objective decision as to whether or not, in its view, this will be capable of meeting the requirements set out in this service specification. This process may involve a period of clarification with tenderers. 5.2.4 Tenderers should be aware that failure to supply the details requested in this service specification would seriously affect the competitiveness of their bid. 5.2.5 Details of the marking frames for this tender are set out in Section 6.

5.3

Proposed Schedule

5.3.1 Tenderers must provide details of their proposed schedule for the service, including any variations between the winter and peak season service and services above the minimum standard. 5.4

Operational Management Plan

5.4.1 Tenderers must provide a clear operational management plan for the service. This should include details of the management structure, which would be put in place by the Tenderer if successful in winning the Contract, identifying individual members of the management team and listing key responsibilities. 5.4.2 Bidders should also cover staffing details comprising: •

Names and CVs of key personnel, including details for the person responsible in the event of accidents, etc. Where the company intend to

• • • • • • •

• • •

recruit new senior staff to fill key roles if successful, this should be made clear; Your position with regard to TUPE and deployment of staff; Crew configurations and numbers per sailing, noting seasonal variations; Crew/passenger ratios and passenger certificate numbers throughout the year; Details of other staffing, noting seasonal variations; Shift patterns to be adopted; Details of numbers, type, etc. of staff that the tenderer proposes would transfer under TUPE from CalMac; Details of approach to crewing, to include employment arrangements, whether or not offshore payroll arrangements will be put in place and whether tenderers use or intend to use manning companies; Training policies for development of sea-going and shore staff; Policies to ensure that suitably qualified staff are available in the long term; and Industrial relations and other policies - for example knowledge of Fairness at Work.

Quality Plan 5.4.3 Outline details of key service standards, including quantifiable targets, should be given. In no circumstances, however, should these targets be viewed as a reason to take action that in any way jeopardises the safety of the vessel, its crew or passengers. 5.5

Key minimum standards - see performance regime at Annex 7.

5.5.1 In addition, standards for the following should be itemised: • • • • •

5.6

Conduct of staff. Cleanliness of public areas on vessels. Customer satisfaction with on-board facilities. Customer satisfaction with on-shore facilities. Customer satisfaction with freight and livestock service.

Environmental Considerations

5.6.1 Tenderers must provide full details of their policy in relation to environmental protection and should describe any particular steps they will take in order to help preserve the route environment. 5.7

Security

5.7.1 Operators will be required to maintain an appropriate level of security on board the vessels and at terminals.

5.8

Implementation Plan

5.8.1 The Department places great importance on the implementation phase of this contract. The possibility of a change of operator as a consequence of this tender exercise could increase the potential for disruption to services and for operational incidents and accidents. Tenderers should, therefore, demonstrate that they have fully considered these issues and their technical submissions must include a detailed implementation plan. This plan must address all the key issues and include a detailed timetable for their achievement within the period from contract award to contract commencement, for agreement with the Department. 5.8.2 In addition, the implementation plan should, as a minimum, address the following issues, with dates where possible: • • • • • •

Achieving relevant safety certification. Specifying details of service timetable during the transition. Handling any crewing implications/changes. Establishing transitional arrangements for bookings. Setting up a shore management structure. Identifying the training needs of sea-going and shore-based staff and producing a training plan to ensure appropriate training is offered timeously.

5.8.3 The Department will have the right to monitor the successful bidder’s progress on service implementation against the agreed implementation plan and the contractor will provide monthly reports to the Department on implementation progress during the period between contract award and service commencement. Where progress on implementation falls behind the requirements of the plan the contractor will be required to produce proposals for rectifying this and to immediately take such action as may be required to address the problem. 5.9

Additional Notices and Instructions

5.9.1 All information supplied by the Department in connection with the invitation to tender shall be treated as confidential by tenderers except that such information may be disclosed for the purpose of obtaining sureties and quotations necessary for the preparation and submission of the tender.

5.10 Vessel Details. 5.10.1 Full details of any vessels proposed for use in the route should be provided. 5.10.2 These should include particulars of where and when built, port of registry, previous names, service speed and consumption, carrying capacity and class. 5.10.3 A copy of the current passenger certificate and load line certificate for any vessel to be used must be provided, along with a general arrangement drawing and a note of her Port State inspection record covering the previous two years of operation.

5.10.4 The Department may wish to inspect the vessel as part of the tender evaluation process. Details of where this can be done should be provided. 5.10.5 Where the vessel proposed for the route is not currently in the ownership of the bidder, clear evidence of the vessel’s availability must be provided. 5.10.6 Where the vessel is to be purchased, a copy of the memorandum of agreement between the bidder and the vessel’s present owner should be provided. 5.10.7 Where the vessel is to be chartered, a copy of the charter party to be used should be provided along with a written statement from the vessel’s owner or current operator, to the effect that the vessel will be available to the bidder for use on the route for the duration of the contract. 5.10.10Where a vessel is to be built, full design details, and an outline build programme should be provided as part of the technical submission. 5.10.11Where a vessel is being built, the building process will form part of the implementation plan and the Department will have the right to monitor the new building process through meetings with the incoming operator and visits to the shipyard.

6. EVALUATION SYSTEM FOR ASSESSMENT OF TENDER SUBMISSIONS 6.1

The Department intend utilising the services of an external consultant to assist in the tender evaluation process.

6.2

The evaluation criteria will include emphasis on quality as well as price. Each tender will be the subject of a technical, commercial and financial analysis. The aim of the evaluation is to select the tender which represents the lowest financial compensation whilst delivering the required service. The technical analysis will ensure that the tenderers have met the minimum criteria set down in the specification and tender schedules. Commercial and financial analysis will be used at the costed bid stage to establish the full price of tenders. To achieve all of this a tender assessment system will be used and this will cover, but will not be limited to the following aspects:• • • • • • • •

6.2

general understanding of the requirements, i.e. provision of a ferry service between Ballycastle and Rathlin Island:status of the tender, including analysis of financial viability and technical ability; operation of proposals with particular emphasis on quality and performance measurements; staffing proposals; Operators safety record; Depth of experience of key staff; Suitability of vessels proposed; Assessment of proposals against the minimum standard;

Essential Requirements

6.2.1 All of these requirements must be met by Tenderers and each will be marked initially with a pass or a fail. Tenderers must pass each in order to be deemed compliant. 6.2.2 Those tenderers who pass on all the essential criteria will then be scored on how far they meet all the requirements. The requirements and their associated scores are set out in the table below.

6.3

Costed Bid

6.3.1 To allow the award of contract to be determined by a number of factors we have also developed a mechanism for scoring the proposed subsidy. The weighting factor for the subsidy will be 400. 6.3.2 The bid requiring the minimum subsidy will be awarded 1 mark to which the weighting will be applied. To calculate the score for other bids we will divide the minimum subsidy amount by the subsidy in the bid and apply the weighting.

AWARD CRITERIA

MAX MARK

Service levels for passengers,cars, freight, livestock and hazardous goods.

200

Vessels, including relief, emergency services, disabled access, ship boarding practices, Port Assets, compliance with regulations.

200

Monitoring and safety of Operations, financial guarantee and insurance.

100

Timetables, performance regime and ticketing.

100

Unscheduled events, integrated transport, consultation, marketing and website.

100

Subsidy Required

500

TOTAL

ANNEX 1 YEARLY CARRYING STATISTCS Carrying statistics for the Ballycastle – Rathlin Island route from 2002 - 2006 are shown below. Year

Pax

Cars

Commercial Vehicles

Coaches

2006

50203

2637

363

0

2005

48106

2572

358

0

2004

46128

2625

266

0

2003

46351

2723

231

0

2002

39399

2703

225

2

Monthly Carrying year 2005/06

Month

April May June July August September October November December January February March Total

Passengers

Cars

CV

Total No. Carried 3412 4979 8737 12254 10701 3728 1388 1024 965 842 1102 1071

Average per day 114 161 291 395 345 124 45 34 31 27 39 35

Total No. Carried 208 211 252 297 261 298 197 165 205 174 172 197

Average per day 7 7 8 10 8 10 6 6 7 6 6 6

Total No. Carried 18 89 43 25 36 36 33 21 20 21 26 25

Average per day 1 3 1 1 1 1 1 1 1 1 1 1

50203

137

2637

7

393

1

No. of return sailings per day 4 4 4 4 4 4 4 2 2 2 2 2

ANNEX 2 SUMMER TIMETABLE AND FARES 2007

ANNEX 3 WINTER TIMETABLE AND FARES 2006/07

ANNEX 4 TABLE OF RATES, FARES AND CHARGES Fare Adult Child 5-16 Under 5 Senior Smart Pass Half Fare Smart Pass War Disabled Entitlement Concession Travel for Blind Persons Disabled Car Family Ticket Group Rate Adult Group Rate Child Multi-Journey 10 ticket Adult Multi-Journey 10 ticket Child Resident Pass Adult Resident Pass Child Resident Pass Car Resident Pass Disabled Car Resident Pass Baggage Trailer Car Baggage Trailer Commercial Rate per ½ meter Commercial Exceeding standard width Hay Lorries Bicycle

Single/Return £5.00/£10.00 £2.50/£5.00 Free Free £2.50/£5.00 Free Free £8.75/£17.50 n/a / £26.50 £4.25/£8.50 £2.15/£4.25 £35.00 £17.50 £2.50/£5.00 £1.25/£2.50 £8.75/£17.50 £8.75 return only £4.40/£8.75 £17.50/£35.00 £8.75/£17.50 £3.50/£7.00 £5.25/£10.50 £1.75/£3.50 £1.00 /£2.00

ANNEX 5 DISCOUNTED FARES SPONSORED BY DEPARTMENT

Type of fare Under 5 Child Residents’ Pass Adult Resident’s Pass Child Residents’ Pass Car Residents’ Pass baggage trailer Free Smart Pass Half Smart Pass Disabled Car Residents’ Pass Disabled Car

Discount on standard free 50% 50% 75% 50% 50% free 50% 50% 75%

ANNEX 6 LIST OF PERMITTED VEHICLES AND RESTRICTIONS

1. A vehicle (including a motorcycle) owned and registered to a person holding a valid Resident Pass

2. A vehicle (excluding a motorcycle) being used by a visitor staying at a recognised address and holding a valid Visitor Vehicle Permit or a Parking Permit (permits available from Moyle District Council)

3. A vehicle conveying a disabled person and displaying an ‘Orange Badge’

4. A vehicle being used by a local authority, government department or other statutory undertaker on official business

5. A vehicle being used by the police, fire or ambulance service or in the course of duty by a local doctor, district nurse, local vet, local dentist or local clergyman

6. A vehicle being used in connection with agriculture or forestry

7. A vehicle being used in connection with a funeral

8. A vehicle which is a goods vehicle and is delivering goods, material, livestock (but not passengers) to and from the island. ‘Goods vehicle’ means a vehicle constructed or adapted for use for the conveyance of goods or burden of any description.

9. A vehicle authorised for a specific purpose by the Council.

ANNEX 7 SUMMARY OF PERFORMANCE STANDARDS REQUIRED The Rathlin Island – Ballycastle route will require to be operated in accordance with following performance regime. Relief Events

A relief event is one which allows one or other of the parties to a contract ‘ relief ‘ from the usual consequences of not fulfilling their part of the agreement. There are a number of standard events — e.g. terrorism; force majeure; certain changes in the law. It is also proposed the following events are classed as relief events: • weather and tidal conditions where the Master considers that sailing would compromise operational safety;. • events outwith the operator's control such as unavailability of harbours or unrelated strike action; • where a delayed or diverted sailing (under a relief event) has a knock-on effect on subsequent sailings (e.g. connecting sailings or a shuttle service) the delay should be taken into account when assessing whether the subsequent sailings are late; • any decision made by the Master in the interests of protecting the safety of life at sea; • decisions made by the Master or Shore Management regarding exceptional social needs and safety related concerns over which the operator has no control. (Before such an event is accepted as a Relief Event, the full circumstances of the delayed/cancelled sailing must be detailed in writing by the operator and submitted to the Department for consideration. The Department's decision will be final as to whether such an occurrence warrants relief event status.); and • a sailing which is delayed due to the pre-notified late arrival of passengers, and where such a delay is of direct benefit to the service users. (Before such an event is accepted as a Relief Event, the full circumstances of the delayed/cancelled sailing must be detailed in writing by the operator and submitted to the Department for consideration. The Department's decision will be final as to whether such an occurrence warrants Relief Event status.)

Thresholds

If, in any 4-week period, reliability on any route falls below 90% grievance procedures (which may result in a termination event) will be triggered. If, over a 12-week period, reliability on any route is below 95% grievance procedures (which may result in a termination event) will be triggered. If there is no service for four consecutive days the department may act to ensure the provision of the services. The action must be reasonable in the circumstances and the Department may seek reimbursement from the operator for any costs involved. Where there is regular "significant lateness" on any route grievance procedures will be triggered. “Significant lateness” is defined as 30 minutes after scheduled time.

Penalty

We propose that where a sailing is cancelled or de facto cancelled the average cost of the sailing (based on subsidy costs for that route) will be deducted - this ensures that the Department is not paying for a service it does not receive.

Monitoring

On a rolling 4-weekly and 12-weekly basis. i.e. weekly reports. These should detail all passenger receipts and include a monthly balance sheet. Additionally, on an annual basis this should be the profit and loss account for the route. A formal meeting between the contractor and the Department is to be held on a quarterly basis.

There will be an obligation on the operator to inform the Department about all cancellations and significant delays for whatever reason including relief events. Passenger Charter

The operator will be required to devise, publish and adhere to a Users Charter which will be subject to the approval of the Department. The Charter will cover issues such as: • On-board and on-shore facilities (where they are provided by the operator) • Cleanliness • Staff conduct • How complaints are dealt with

ANNEX 8 INFORMATION WHICH THE OPERATOR WILL BE REQUIRED TO PROVIDE DURING THE CONTRACT PERIOD Financial Information (a) A copy of the operator's Annual Report. (b)

A copy of the company's audited accounts; a copy of the audited accounts for the subsidised services; and audit certificates for both.

(c)

Other financial information required for monitoring purposes.

Other Information (a) Monthly and quarterly information about volume of route carryings by sector (i.e. foot passengers, cars, lorries, freight, livestock). (b)

Delayed and cancelled sailings by route (weekly report) in a format to be agreed with the Department. This will be used to monitor performance in relation to the performance regime. The operator will also be required to notify the Department about all cancelled sailings and significant delays as soon as possible.

(c)

The following annual figures (all of which should be for financial years unless otherwise specified):

(d)

•

the number of:o passengers carried; o cars carried; o commercial vehicles carried; and

•

the total o tonnage of loose freight; o revenue from users (including charter and contract carryings); o subsidy (for the financial year). Annual safety reports including detailed information about any reportable accidents, including any major injuries and serious injuries, and any hazardous events.

(e)

The operator is required to notify the Department of any incidents/accidents reported to the Marine Accident Investigation Branch (MAIB).

(f)

The MCA may undertake surveys and inspections on board vessels and the operator is required to provide a copy of the Certificate of completion of the survey to the Department.

(g)

Annual environmental report including detailed information about any reportable pollution incidents. All pollution incident reports to the MCA should also be copied to the Department. The operator should also be aware of requirements under the

UNECE Convention on Access to Information, Public Participation in Decision Making and Access to Justice in Environmental Matters (the Aarhus Convention). The UK Government hopes to ratify the Convention shortly. (h)

Information relating to the Users Charter e.g. number of complaints, what they were about and how they were dealt with.

(i)

Such information as the Department may reasonably require from time to time.

ANNEX 9 TENDER DOCUMENTATION: SUPPORTING MATERIAL REQUIRED Full Description of Tenderers’ Current Business Activities Tenderers should provide a full outline of their business activities with particular reference to passenger vessel operations. Where the tenderer has no current involvement in operation of passenger ferries, or where a joint venture is proposed, full details of the allocation of responsibilities within the joint venture should be provided along with a clear outline of the proposed structure. Details of the Tenderers’ Safety Record Details of the Tenderer’s safety record over the past three years of operation should be provided along with details of the number and type of vessels operated. Vessel Specification Full details of any vessels proposed for use in the route should be provided. These should include particulars of where and when built, port of registry, previous names, service speed and consumption, carrying capacity and class. A copy of the current passenger certificate and load line certificate for any vessel to be used must be provided, along with a general arrangement drawing and a note of her Port State inspection record covering the previous two years of operation. The Department may wish to inspect the vessel as part of the tender evaluation process. Details of where this can be done should be provided. Where the vessel proposed for the route is not currently in the ownership of the bidder, clear evidence of the vessel’s availability must be provided. Where the vessel is to be purchased, a copy of the memorandum of agreement between the bidder and the vessel’s present owner should be provided. Where the vessel is to be chartered, a copy of the charter party to be used should be provided along with a written statement from the vessel’s owner or current operator, to the effect that the vessel will be available to the bidder for use on the route for the duration of the contract. Marketing Plan Tenderers must provide an outline marketing plan dealing with the development of the route and outlining projected traffic levels for the duration of the contract. It is expected that tenderers will consult with local interests when considering the marketing issues associated with the development of the service.

Insurance Tenderers must provide details of the arrangement to be put in place for third party liability insurance in respect of their performance of the Contract including the operation of any vessels. Tenderers must supply full details of the insurance arrangements in place for the vessel they propose and for their own operation. These will consist of:• • •

the name of the P&I association with which the vessel is entered along with a copy of the certificate of entry; a certificate of hull and machinery insurance for the vessel; identity of the underwriters with whom third party risk is placed along with details of the extent of cover.

Quality Plan A quality plan must be provided, containing:• details of any current quality accreditation, such as ISO 9002 or ISO 14001 with the copy of the certificate; • details of the operator’s current Accreditation, under ISM or the Management Code for Domestic Passenger Ships along with copies of the relevant certificates; • details of any accreditation towards which tenderers currently working with planned compliance dates; • detailed proposals from managing quality on the route. Issues to be covered will include: • • •

• • •

outline routine formal audit programme for the route; proposals for monitoring the service standards on a day-to-day basis; the contractor will be required to display the performance statistics in terms of missed-sailings and performance against timetable in the public areas of each terminal, and to make figures available to the Department as and when required; proposals for monitoring customer satisfaction including regular consultation with local user groups; the contractor must be prepared to respond to unscheduled requests for consultation should the issues raised warrant it; details of the complaints procedure with which the contractor will implement, with target timescales for the resolution of issues.

Environmental considerations The Ballycastle – Rathlin Island route is in an area of outstanding natural beauty. Accordingly the contractor's Safety and Environmental Protection policy must recognise and take into account this environmental sensitivity. Tenderers must provide full details of their policy in relation to environmental protection and should describe any particular steps they will take to preserve the route environment. Details of any Quality accreditation dealing specifically with environmental issues should be provided.

Implementation Plan The introduction of new vessels and new operational routines may increase the potential for accidents, or operational incidents with the attendant likelihood of injury to personnel and/or service disruption. Tenderers must produce a detailed implementation plan demonstrating that they have considered all of the operational factors surrounding the introduction of the service and setting out the means they intend to adopt to manage risks and minimise the effects. The implementation plan should include reference to:• • • • • • • •

any HR issues with which the tenderer feels may arise surrounding the implementation of TUPE; arrangements for staff training in relation to any new vessels. Identification of any particular training requirements in relation to the needs of disabled travellers; identification of any training requirements in the arrangements and timetable for achieving them; vessel trials, including trial berthing, where necessary; achievement of required safety certification; arrangements for setting up and operating the booking system; transitional arrangements for advance bookings; the implementation plan must include a timetable for the activities detailed above covering the period between contract award and service implementation.

Risk assessment Tenderers should provide details of the risk assessment they have carried out in relation to the operation of their proposed vessels on the route. The Department will have the right to monitor the successful bidder’s progress on service implementation against the agreed implementation plan and the contractor will provide monthly reports to the Department on implementation progress during the period between contract award and service commencement. Where progress on implementation falls behind the requirements of the plan the contractor will be required to produce proposals for rectifying this and to immediately take such action as may be required to address the problem.

Part 3 Forms and Certificates

Instructions The following forms are contained in this section and must be completed in full to ensure your tender is valid; a.

Form of Tender

(Sign and return)

b.

Certificate relating to Bonafide Tender

(Sign and return)

c.

VAT Registration

(Sign and return)

d.

Fair Employment and treatment (Northern Ireland) Order 1998

(Sign and return)

e.

Freedom of Information Statement

(Sign and return)

f.

Conflict of Interest Statement

(Sign and return)

g.

Indemnity Performance Bond

(Sign and Return)

DEPARTMENT OF FINANCE AND PERSONNEL CENTRAL PROCUREMENT DIRECTORATE SUPPLIES AND SERVICES DIVISION

A.

FORM OF TENDER CONTRACT FOR: - DRD Rathlin Island to Ballycastle Ferry Operator

1.

I/We the undersigned hereby tender for the above contract in accordance with the attached Conditions of Contract and Specification at the prices quoted in the Schedule forming part of my/our tender response.

2.

I/We agree that this Tender together with your written acceptance thereof shall constitute a binding contract between the Department in relation to the whole or such part of the Tender as may be specified in your written acceptance.

3.

I/We have read, accept and agree to abide by the attached Conditions of Contract which take precedence over any terms, conditions, stipulations or provisos which may appear on or be annexed to any correspondence submitted by me/us in connection with this Contract.

4.

I/We understand that Central Procurement Directorate Supplies and Services Division does not bind itself to accept the lowest or any tender submitted in response to this enquiry and may accept the whole or part of any tender.

5.

I/We understand Central Procurement Directorate Supplies and Services Division reserves the right to discontinue the award procedure in the event of irregular tenders or in the absence of appropriate tenders and in such circumstances may use the negotiated procedure without a further call for competition.

6.

I/We warrant that I/we have all the requisite corporate authority to sign this tender. Dated this __________

day of ________________________ 20___

Signed by or on behalf of the Tenderer: Printed ∗

Name of Tenderer: (Block Capitals)

Registered Address:

∗

Please insert here the FULL NAME of the Tenderer, or in the case of a partnership the FULL NAMES of ALL the partners.

DEPARTMENT OF FINANCE AND PERSONNEL CENTRAL PROCUREMENT DIRECTORATE SUPPLIES AND SERVICES DIVISION

B.

CERTIFICATE RELATING TO BONA FIDE TENDER

1.

The essence of tendering is that the client shall receive bona fide competitive tenders from all firms tendering. In recognition of this principle, we certify that this is a bona fide tender intended to be competitive and that we have not fixed or adjusted the amount of the tender by or under or in accordance with any agreement or arrangements with any other person.

2.

We also certify that we have not: a.

communicated to a person other than the person calling for these tenders the amount or approximate amount of the proposed tender, except where the disclosure, in confidence, of the approximate amount of the tender was necessary to obtain insurance premium quotations required for the preparation of this tender;

b.

entered into any agreement or arrangement with any other person that he shall refrain from tendering or as to the amount of any tender to be submitted;

c.

offered or paid or given or agreed to pay or give any sum of money or valuable consideration directly or indirectly to any person for doing or having done or causing or having caused to be done in relation to any other tender or proposed tender for the said work any act or thing of the sort described above.

3.

We undertake that we will not do any of the acts mentioned in paragraphs 2a, 2b or 2c above at any time before the acceptance or rejection of this tender.

4.

In this certificate the word “person” includes any persons and any body or association, corporate or unincorporate and “any agreement or arrangement” includes any such transaction, formal or informal and whether legally binding or not. Signed: Block Capitals:

_______________________________________________ ______________________________________________

for and on behalf of: _______________________________________________ Date: _________________________________

DEPARTMENT OF FINANCE AND PERSONNEL CENTRAL PROCUREMENT DIRECTORATE SUPPLIES AND SERVICES DIVISION

C.

VAT REGISTRATION

Part 1 or Part 2 and Part 3 to be completed as appropriate by the Tenderer and returned with Tender Documents:-

1.

My/Our VAT Registration Number is: Signed by: for and on behalf of:

Date:

2.

I/We are “EXEMPT” from VAT under the terms of the Value Added Tax Act 1994. Signed by: for and on behalf of:

Date: 3.

Please indicate which of the following best describes the economic status of your company/organisation:Small and Medium Sized Enterprise

Y/N

Social Economy Enterprise

Y/N

Voluntary and Community Organisation

Y/N

If other please specify:

DEPARTMENT OF FINANCE AND PERSONNEL CENTRAL PROCUREMENT DIRECTORATE SUPPLIES AND SERVICES DIVISION

D.

FAIR EMPLOYMENT AND TREATMENT (NORTHERN IRELAND) ORDER 1998

1.

Article 64 of the Fair Employment and Treatment (Northern Ireland) Order 1998 provides inter alia that a public authority shall not accept an offer to execute any work or supply any goods or services where the offer is made by an unqualified person in response to an invitation by the public authority to submit offers. Article 64(4) also provides that the public authority shall take all such steps as are reasonable to secure that no work is executed or supplies or services supplied for the purposes of such contracts as are mentioned above by an unqualified person.

2.

For the purposes of Articles 64-66 of the Order, an unqualified person is a person on whom a notice has been served under Article 62(2) or Article 63(1) of the Order and which has not been cancelled.

3.

Mindful of its obligations under the Order, Central Procurement Directorate, Supplies and Services Division has decided that it shall be a condition of tendering that a contractor shall not be an unqualified person for the purpose of Articles 64-66 of the Order.

4.

Contractors are therefore asked to complete and return the form endorsed hereon, with their tender, to confirm that they are not unqualified persons and to undertake that no work shall be executed or supplies or services supplied by an unqualified person for the purposes of any contract with Central Procurement Directorate, Supplies and Services Division to which Article 64 of the Order applies.

FAIR EMPLOYMENT AND TREATMENT (NORTHERN IRELAND) ORDER 1998 I/We hereby declare that I am/we are not unqualified for the purposes of the Fair Employment and Treatment (Northern Ireland) Order 1998. I/We undertake that no work shall be executed or supplies or services supplied by any unqualified person for the purposes of any contract with the Central Procurement Directorate, Supplies and Services Division, to which Article 64 of the Order applies. Signed by

______________________________________________________

Duly authorised to sign for and on behalf of Date _______________________________

______________________________

DEPARTMENT OF FINANCE AND PERSONNEL CENTRAL PROCUREMENT DIRECTORATE SUPPLIES AND SERVICES DIVISION E.

FREEDOM OF INFORMATION STATEMENT

With reference to Section 5 of the Instructions to Tenderers and Clause 24 of the Terms and Conditions of Contract, please complete where appropriate. I/We consider that :1.

The information in this tender is sensitive*.

2.

The information in this tender is not sensitive*. *Delete as Appropriate

3.

If the information supplied in this tender is considered sensitive, please state which information should not be disclosed and provide reasons.

4.

Period for which information should remain commercially sensitive. Please state.

Signed: Block Capitals: for and on behalf of: Date:

DEPARTMENT OF FINANCE AND PERSONNEL CENTRAL PROCUREMENT DIRECTORATE SUPPLIES AND SERVICES DIVISION F.

CONFLICT OF INTEREST DECLARATION

With reference to Section 15 of the Instructions to Tenderers, please complete where appropriate. I/We warrant that :1.

There would be no conflict or perceived conflict of interest in relation to the personnel or type of work involved in this contract.*

2.

There could be a possible conflict or perceived conflict of interest in relation to …………………………………… and their involvement in this contract.*

3.

Please explain what the possible conflict or perceived conflict of interest may be and who it relates to and how it could have an adverse effect on this contract.

*Delete as Appropriate Signed: Block Capitals: for and on behalf of:

Date:

DEPARTMENT OF FINANCE AND PERSONNEL CENTRAL PROCUREMENT DIRECTORATE SUPPLIES AND SERVICES DIVISION G.

INDEMNITY PERFORMANCE BOND

BOND NO: This Indemnity Bond is made the BETWEEN [ (hereinafter called “the Contractor”) of the first part;

] with its registered address at [Insert Address]

[ ] having its registered office situate at [address] (hereinafter called “the Surety” which expression shall include its successors and assigns) of the second part and The Department of Regional Development, Clarence Court, Adelaide Street, Belfast (hereinafter called “the Department”) of the third party. WHEREAS 1.

By Contract dated the [date] and made between the Department of the one part and the Contractor of the other part (hereinafter called “the Contract”) the Contractor has agreed to provide the Services as defined and described in the Contract as a result of the expression of interest to a restricted tender competition (as defined in the Contract) and subject to the terms and conditions set out in the Contract.

2.

It is a requirement of the tender and the Contract that the Contractor provide a Performance Bond in the form described below;

PERFORMANCE BOND 1.

The terms, definitions and expressions contained in the Contract shall have the same meanings ascribed thereto in this Performance Bond.

2.

The Contractor and the Surety are hereby jointly and severally held and firmly bound to indemnify the Department on demand in the full and just sum of five hundred thousand pounds sterling (£500,000). Provided That if the Contractor shall duly perform and observe all the terms, conditions, stipulations and provisions contained or referred to in the Contract which are to be performed or observed by the Contractor or, if on default by the Contractor, the Surety shall satisfy and discharge, (including the lawful termination of the Contract for cause by the Department) the amount contained herein, then this Bond shall be of no effect but otherwise shall remain in full force and effect.

3.

The Surety shall not in any way be released or discharged from the Surety’s liability under this Bond by the giving by the Department of any extension of time or allowance for the performance and observance of the Contract or anything therein mentioned or contained and on the part of the Contractor to be performed or observed or any other forgiveness neglect compromise or arrangement waiver or forbearance on the part of the Department of the Contractor or any alternation of time or any variation or amendment of the Contract.

4.

This Bond shall remain in force and the Contractor and the Surety shall not be released therefrom until the expiration Term (as defined in the Contract).

5.

This Bond is executed by the Surety upon the following express condition which shall be a condition precedent to the right of the Department to recover hereunder. The Surety shall be notified in writing by registered or hand delivered letter to its registered office of any serious breach of or serious default in any of the terms and conditions contained in the Contract and on the part of the Contractor to be performed and observed and for which the Surety is being called upon to satisfy and discharge as soon as possible but in any event within three months after such breach or such default shall have come to the knowledge of the Department or his representative or representatives having supervision of the Contract.

6.

All monies which became payable by the Surety under this Bond shall be paid in Belfast, Northern Ireland and in Sterling.

7.

This Indemnity Bond or any matter related to this Indemnity Bond shall be governed by the laws of Northern Ireland. The Contractor the Surety and the Department hereby submit to the exclusive jurisdiction of the Courts of Northern Ireland.

IN WITNESS whereof the parties hereto have caused their common seals to be affixed to this Bond the day and year first herein WRITTEN. The Common Seal was hereunto affixed of [ ] In the presence of:

Witness Name:

Director:

Address: Director/Secretary Occupation:

The Common Seal was hereunto affixed of [name of Surety] in the presence of: Witness Name:

Director:

Address: Director/Secretary Occupation:

Witness Name:

Director:

Address: Director/Secretary Occupation:

PRESENT when the Official Seal of the Department was affixed hereto

Witness: Name: Address: Authorised Signatory Occupation:

BOND To cover the cost of hire of £500k of hire of boat and crew for 12 months operation until a new tender exercise has been run. Actioned the supplier terminates contract without the agreed period of notice being given.

Part 4 Terms and Conditions of Contract

CONDITIONS OF CONTRACT

FOR

SERVICES

FOR

BALLYCASTLE TO RATHLIN ISLAND FERRY OPERATOR

THE DEPARTMENT FOR REGIONAL DEVELOPMENT

PARTICIPATING BODIES The Department for Regional Development

CONTENTS OF CONDITIONS OF CONTRACT Introduction 1. 2. 3. 4.

Interpretation Entire Agreement Period of Contract Services

Provision of Services 5. 6. 7. 8. 9. 10. 11. 12. 13. 14. 15. 16.

Conditions affecting provision of services Contractor Status Department’s Property Equipment Staff Co-ordination Use of Departments Premises Right of Access Manner of providing the Services Standards Overtime Working Progress Reports

Payments 17. 18. 19. 20.

Payment Value Added Tax Recovery of Sums Due Price Adjustments

Protection of Information 21. 22. 23. 24. 25. 26. 27.

Intellectual Property Rights - assignment and indemnity Security Confidentiality Freedom of Information Publicity Right of Audit Data Protection Act 1998

Liabilities 28. Indemnity and Insurance Compliance with Legal and Other Obligations 29. 30. 31. 32.

Corrupt Gifts and Payments of Commission Statutory and Other Regulations Equality of Opportunity Health and Safety

33. Social Security System 34. Conflict of Interest 35. Official Secrets Act Control of Contract 36. 37. 38. 39. 40.

Transfer, Sub-Contracting and Assignment Severability Waiver Variations Performance Monitoring

Default and Termination 41. 42. 43. 44. 45.

Force Majeure Bankruptcy Termination on Default Break Consequences of Termination

Transfer of Undertaking and Protection of Employment (TUPE) 46. TUPE Disputes 47. Arbitration 48. Law Appendix A Variation to Contract Form Appendix B Authorised Representative

1.

INTERPRETATION

1.1

In this Contract the following words shall have the following meanings except where the context otherwise requires: a.

Acceptance

Confirmation in writing by the Department that a Service has been accepted by the Department.

b.

Amendments

The amendments (if any) to the Contract which may be agreed by the Contractor and the Department.

c.

Authorised Representative

The nominated representative of the Department and the Contractor.

d.

Contract

The Tender completed by the accepted Tenderer, the Conditions of Contract; the Specification or Operational Requirement; the Drawings, if any, the Schedule of Prices or Rates or Lump Sum as submitted by the accepted Tenderer, the Letter of Acceptance issued by Central Procurement Directorate, Supplies and Services Division, to the accepted Tenderer together with such correspondence, if any, between the accepted Tenderer and Central Procurement Directorate, Supplies and Services Division, as may be agreed by both parties to form part of the Contract.

e.

Contractor

The person, firm or corporate body whose tender shall have been accepted by the Department and shall include the Contractor’s personal representatives, successors, and permitted assigns.

f.

Contractors Staff

g.

Department

Employees, sub-contractors employees and agents or representatives of both contractor and subcontractor. The Department for Regional Development

h.

Equipment

All materials, plant, equipment, and consumables other than the Department’s property to be used by the Contractor in the provision of the Services.

i.

Premises

Land or buildings where the services are performed.

j

Services

The provision of the Services defined herein.

k.

Site

The area within the Premises in which the Services are performed.

l.

Days

Calendar Days

1.2

Words importing the singular shall also include the plural, and importing the masculine shall also include the feminine and vice versa where the context requires.

1.3

For the purpose of the Contract Central Procurement Directorate, Supplies and Services Division is authorised to act on behalf of the Department.

1.4 A reference to any statute, enactment, order, regulations or other similar instrument shall be construed as a reference to the statute, enactment, order, regulation or instrument as subsequently amended or re-enacted. 2.

ENTIRE AGREEMENT

2.1

The Contract constitutes the entire agreement between the parties relating to the subject matter of the Contract. The Contract supersedes all prior negotiations, representations and undertakings, whether written or oral, except that this Condition shall not exclude liability in respect of any fraudulent misrepresentation.

3.

PERIOD OF CONTRACT

3.1

This Contract shall take effect on the commencement date and shall remain in force for six (6) year(s) but with the written agreement of both parties may be extended annually for a further six (6) periods of twelve (12) months each, unless it is otherwise terminated in accordance with the provisions of these Conditions.

4.

SERVICES

4.1

The Contract is for work to be undertaken by the Contractor in accordance with the provisions of the Contract.

4.2

Requests to provide the contracted service may be transmitted in writing by post, fax or other electronic means as may be agreed by both parties. In cases of urgency verbal instructions may be given pending written confirmation.

5.

CONDITIONS AFFECTING PROVISION OF SERVICES

5.1

The Contractor shall be deemed to have satisfied himself as regards the nature and extent of the services, the means of communication with and access to the site, the supply of and conditions affecting labour, the suitability of the Department’s property and the equipment necessary for the performance of the services, subject to all such matters being discoverable by the Contractor.

6.

CONTRACTOR STATUS

6.1

Nothing in the Contract shall be construed as creating a partnership, a contract of employment or a relationship of principal and agent between the Department and the Contractor.

7.

DEPARTMENT’S PROPERTY

7.1

All Department’s property shall remain the property of the Department and shall be used in the performance of the Contract and for no other purpose without prior approval.

7.2

On receipt of Department’s property the Contractor shall subject it to a visual inspection and such additional inspection and testing as may be necessary to check that it is not defective; within 14 days of receipt of any item of Department’s property, or such other period as may be approved the Contractor shall notify the Department’s in writing of any defects discovered; within 14 days after receiving such notification, the Department shall inform the Contractor of the action to be taken

7.3

The Department shall be responsible for the repair or replacement of Department’s property unless the need for repair or replacement is caused by the Contractor’s failure to comply with Condition 7.5, or by the negligence or default of the Contractor.

7.4

The Contractor shall be responsible for his own costs resulting from any failure of Department’s property, unless he can demonstrate that the Department had caused undue delay in its replacement or repair.

7.5

The Contractor shall maintain all items of Department’s property in good and serviceable condition, fair wear and tear excepted, and in accordance with the manufacturer’s recommendations.

7.6

The Contractor shall be liable for any loss of or damage to any Department’s property unless the Contractor is able to demonstrate that such loss or damage was caused or contributed to by the negligence or default of the Department.

7.7

The Contractor shall not in any circumstances have a lien on any Department’s property and shall take all steps necessary to ensure that the title of the Department and the exclusion of any lien are brought to the attention of any third party dealing with any Department’s property.

7.8

The Contractor undertakes the due return of all re-useable property and will be responsible for all loss thereof or damage thereto from whatever cause. Deterioration in such property resulting from its normal and proper use in the execution of the Contract shall not be deemed to be loss or damage, except in so far as the deterioration is contributed to by any want of maintenance and repair by the Contractor.

8.

EQUIPMENT

8.1

The Contractor shall provide all the equipment necessary for the provision of the Services.

8.2

The Contractor shall maintain all items of equipment in good and serviceable condition.

8.3

All equipment shall be at the risk of the Contractor and the Department 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 negligence or default of the Department.

8.4

The Contractor shall provide for the haulage or carriage of equipment to the premises and its off-loading and removal when no longer required.

8.5

The Department may at its option purchase any item of equipment from the Contractor at any time, if the Department considers that the item is likely to be required in the provision of the Services following the expiry or termination of the Contract. The purchase price to be paid by the Department shall be the fair market value.

9.

STAFF

9.1

The Contractor warrants and represents that all staff assigned to the performance of the Contract shall possess such skill and experience as is necessary for the proper performance of the Contract.

9.2

Where the Contract provides that the work shall be done by named staff the Contractor undertakes to take all reasonable steps to ensure that his staff remain for the full period of this Contract. Unavoidable changes in the Contractor’s staff proposed by the Contractor and agreed by the Authorised Representative shall be subject to not less than one month’s written notice.

9.3

If for any other reasons changes in the Contractor’s staff become necessary in the opinion of the Authorised Representative such changes shall be subject to 1 weeks written notice by the Authorised Representative to the Contractor.

9.4

In the event that the Contractor is unable to provide replacement staff acceptable to the Authorised Representative within sufficient time to enable the Contractor to complete the work on time than the Department may obtain replacement staff from other sources or terminate the Contract at its discretion.

10.

CO-ORDINATION

10.1

The Contractor shall co-ordinate his activities in the provision of the Services with those of Departmental personnel and other contractors engaged by the Department.

11.

USE OF DEPARTMENT’S PREMISES

11.1

Where the Services are performed on the Department’s premises the Contractor shall have use of the Department’s premises without charge as a licensee and shall vacate those premises on completion or earlier termination of the Contract.

11.2

The Contractor shall not use the Department’s premises for any purpose or activity other than the provision of the Services unless given prior approval.

11.3

Should the Contractor require modifications to the Department’s premises, such modifications shall be subject to prior approval and shall be carried out by the Department at the Contractor’s expense. The Department shall undertake approved modification work without undue delay. Ownership of such modifications shall rest with the Department.

11.4

The Contractor shall not deliver any equipment to the Department’s premises outside normal working hours without prior approval.

11.5

The Contractor shall maintain all equipment and its place of storage within the Department’s premises in a safe, serviceable and clean condition.

11.6

On the completion or earlier termination of the Contract, the Contractor shall, subject to the provisions of Condition 8.5 remove all equipment and shall clear away from the Department’s premises all waste arising from the performance of the Services and shall leave the Department’s premises in clean and tidy condition.

11.7

Whilst on the Department’s premises, all staff shall comply with such rules, regulations and other requirements as may be in force in respect of the conduct of persons attending and working on the Department’s premises.

12.

RIGHT OF ACCESS

12.1

The Department reserves the right to refuse to admit to any premises occupied by or on behalf of the Crown any person employed by the Contractor, or by a subcontractor, whose admission would be, in the opinion of the Department undesirable.

12.2

The Contractor shall comply with the requirements of the Department in regard to ensuring the identity and bonafides of all workers and other persons requiring to be admitted to any officially occupied premises in connection with the Contract.

12.3

If the Contractor shall fail to comply with paragraph 12.2 and if the Department shall decide that such failure is prejudicial to the interests of the State, then the Department may terminate the Contract if the Contractor does not comply with such provisions of paragraph 12.2 within a reasonable time of written notice to do so provided always that such termination shall not prejudice or affect any right of action or remedy which shall have accrued thereafter to the Department.

12.4

The decision of the Department as to whether any person is to be refused admission to any premises occupied by or on behalf of the Crown and as to whether the Contractor has failed to comply with paragraph 12.2 shall be final and conclusive.

13.

MANNER OF PROVIDING THE SERVICES

13.1

The Contractor shall perform the Services with all due care, skill and diligence, and in accordance with good industry practice. Timely provision of the Services is of the essence of the Contract.

13.2

The Services shall be performed only on approved sites.

13.3

The Contractor shall, upon the instruction of the Authorised Representative: a.

remove from the Department’s premises any materials which are not in accordance with those contained in the Specification and substitute proper and suitable materials;

b.

remove and properly re-execute any work which is not in accordance with the Contract, irrespective of any previous testing or payment by the Department. The Contractor shall at his own expense complete the reexecuted work correctly in accordance with the Contract within such reasonable time as the Department may specify.

13.4

The signing by the Authorised Representative of time sheets or other similar documents shall not be construed as implying the Contractor’s compliance with the Contract.

14.

STANDARDS

14.1

Materials and processes used in connection with the provision of the services shall be in accordance with the standards and quality specified.

14.2

At the request of the Authorised Representative, the Contractor shall provide proof to the Department’s satisfaction that the materials and processes used or proposed to be used, conform to those standards.

14.3

The introduction of new methods or systems which impinge on the provision of the services shall be subject to prior approval.

15.

OVERTIME WORKING

15.1

The Contractor shall not normally be prevented from working reasonable overtime hours on the Department’s premises if he so desires, provided that he obtains prior approval and it is at no additional cost to the Department.

16.

PROGRESS REPORTS

16.1

Where progress reports are required to be submitted under the Contract, the Contractor shall render those reports at such time and in such form as may be specified or an otherwise agreed between the parties.

16.2

The submission and receipt of progress reports shall not prejudice the rights of either party under the Contract.

17.

PAYMENT

The Department shall pay the Contractor for work completed at the rates or prices contained in the pricing schedule or other interest documentation. Where payment is based upon daily rates the Contractor and his staff will be expected to work 7½ hours per

day, exclusive of meal breaks, unless alternative arrangements are agreed with the Department. In cases where payment is via the Government Purchasing Card, all payments shall be made to Service Providers by the nominated Bank in accordance with the provisions of the scheme. In all other cases payment shall be due within thirty (30) days of receipt by the Department of a correct application for payment or invoice or as otherwise specified in the Contract. The Department reserves the right to withhold payment against any invoice which is not submitted in accordance with the Contract or which covers or purports to relate to services which have not been provided in accordance with the Contract and shall forthwith notify the Contractor accordingly in writing. 18.

VALUE ADDED TAX

18.1

The Department shall pay to the Contractor, in addition to the charges due for the work performed under the Contract, a sum equal to the value added tax as may be properly chargeable on the value of the supply of goods and services provided in accordance with the contract.

18.2

Any invoice or other request for payment of monies due to the Contractor under the Contract shall, if he is a taxable person, be in the form and contain the same information as if the same were a tax invoice for the purposes of Regulations made under the Valued Added Tax Act 1994.

18.3

The Contractor shall, if so requested by the Department, furnish such information as may reasonably be required by the Department as to the amount of value added tax chargeable on the value of goods and services supplied in accordance with the Contract and payable by the Department to the Contractor in addition to the charges for work. Any over payment by the Department to the Contractor shall be a sum of money recoverable from the Contractor.

18.4

If the costs of the Contract are increased or decreased any monies thereby payable shall have added to them a sum equal to any appropriate adjustment in respect of value added tax due on the final value of the work.

19.

RECOVERY OF SUMS DUE

19.1

Whenever 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 Department in respect of any breach of this Contract), the Department may unilaterally deduct that sum from any sum then due or which at any later time becomes due to the Contractor under this Contract or under any other contract with the Department or with any other Department, office or agency of the Crown.

19.2

The Department shall give at least 21 days’ notice to the Contractor of its intention to make a deduction under Condition 19.1 giving particulars of the sum to be recovered and the contract under which the payment arises from which the deduction is to be made.

19.3

Any overpayment by the Department to the Contractor, whether of the contract price or of value added tax, shall be a sum of money recoverable by the Department from the Contractor.

20.

PRICE ADJUSTMENTS

20.1

Prices quoted shall remain firm for the initial contract period set out in Condition 3.1.

20.2

In the event that the contract period is extended a price review shall take place and any increases or decreases shall be agreed by both parties and recorded as a Variation in line with Condition 39.

21

INTELLECTUAL PROPERTY RIGHTS - ASSIGNMENT AND INDEMNITY

21.1

The Contractor hereby assigns to the Department all Intellectual Property Rights owned by the Contractor in any material which is generated by the Contractor and delivered to the Department in the performance of the Services and shall waive all moral rights relating to such material. The Contractor shall not reproduce, publish or supply any such material to any person other than the Department without prior approval.

21.2

In performing the Services the Contractor shall obtain approval before utilising any material which is or may be subject to any Intellectual Property Rights other than those referred to in Condition 21.1.

21.3

Subject to Condition 21.4, the Contractor shall indemnify the Department against all claims, proceedings, actions, damages, legal costs (including but not limited to legal costs and disbursements on a solicitor and client basis), expenses and any other liabilities arising from or incurred by the use by the Contractor, in the performance of the Services, or the use by the Department following delivery by the Contractor, of any material which involves any infringement or alleged infringement of the Intellectual Property Rights of any third party.

21.4

The provisions of Condition 21.3 shall not apply in respect of any material which the Department has supplied to the Contractor or which the Department has specified for use by the Contractor or for delivery to the Department.

21.5

The Department shall indemnify the Contractor against all claims, proceedings, actions, damages, legal costs (including but not limited to legal costs and disbursements on a solicitor and client basis), expenses and any other liabilities arising from or incurred by the use by the Contractor, in the performance of the Services, of any material referred to in Condition 21.4 which involves any infringement or alleged infringement of the Intellectual Property Rights of any third party.

21.6

Where any claim is made by a third party in respect of any material referred to in Condition 21.3 or 21.5, the party which is required to provide an indemnity under those provisions shall have the right to conduct, or take over the conduct of, the defence to the claim and to any proceedings or action brought by the third party.

22.

SECURITY

22.1

The Contractor shall take all measures necessary to comply with the provisions of any enactment relating to security which may be applicable to the Contractor in the performance of the Services.

22.2

The Contractor shall take all reasonable measures, by the display of notices or other appropriate means, to ensure that staff have notice that all provisions referred to in Condition 22.1 will apply to them and will continue to apply to them, if so applicable, after the expiry or earlier termination of the Contract.

22.3

Whilst on the Department’s premises, staff shall comply with all security measures implemented by the Department in respect of personnel and other persons attending those premises. The Department shall provide copies of its written security procedures to the Contractor on request.

22.4

The Department shall have the right to carry out any search of staff or of vehicles used by the Contractor at the Department’s premises.

22.5

The Contractor shall co-operate with any investigation relating to security which is carried out by the Department or by any person who is responsible to the Department for security matters and when required by the Authorised Representative: a.

shall use his best endeavours to make any staff identified by the Authorised Representative available to be interviewed by the Authorised Representative, or by a person who is responsible to the Department for security matters, for the purposes of the investigation. Staff shall have the right to be accompanied by the Contractor’s Representative and to be advised or represented by any other person whose attendance at the interview is acceptable to both the Authorised Representative and the Contractor’s Representative; and

b.

shall, subject to any legal restriction on their disclosure, provide all documents, records or other material of any kind which may reasonably be required by the Department or by a person who is responsible to the Department for security matters, for the purposes of the investigation, so long as the provision of that material does not prevent the Contractor from performing the Services. The Department shall have the right to retain any such material for use in connection with the investigation and, so far as possible, shall provide the Contractor with a copy of any material retained.

23.

CONFIDENTIALITY

23.1

Each Party: -

23.2

a.

shall treat all Confidential Information belonging to the other Party as confidential and safeguard it accordingly; and

b.

shall not disclose any Confidential Information belonging to the other Party to any other person without the prior written consent of the other Party, except to such persons and to such extent as may be necessary for the performance of the Contract or except where disclosure is otherwise expressly permitted by the provisions of this Contract.

The Contractor shall take all necessary precautions to ensure that all Confidential Information obtained from the Department under or in connection with the Contract:a.

is given only to such of the Staff and professional advisors or consultants engaged to advise it in connection with the Contract as is strictly necessary for the performance of the Contract and only to the extent necessary for the performance of the Contract;

b.

is treated as confidential and not disclosed (without prior Approval) or used by any Staff or such professional advisors or consultants otherwise than for the purposes of the Contract.

23.3

The Contractor shall ensure that Staff or its professional advisors or consultants are aware of the Contractor's Confidentiality obligations under this Contract.

23.4

The Contractor shall not use any Confidential Information it receives from the Department otherwise than for the purposes of the Contract.

23.5

The provisions of Clauses 23.1 to 23.4 shall not apply to any Confidential Information received by one Party from the other:a.

which is or becomes public knowledge (otherwise than by breach of this Condition);

b.

which was in the possession of the receiving Party, without restriction as to its disclosure, before receiving it from the disclosing Party;

c.

which is received from a third party who lawfully acquired it and who is under no obligation restricting its disclosure;

d.

is independently developed without access to the Confidential Information; or

e.

which must be disclosed pursuant to a statutory, legal or parliamentary obligation placed upon the Party making the disclosure, including any requirements for disclosure under the FOIA, or the Environmental Information Regulations pursuant to Condition 24.3 (Freedom of Information).

23.6

Nothing in this Condition shall prevent the Department: a.

b.

disclosing any Confidential Information for the purpose of:i.

the examination and certification of the Client’s accounts; or

ii.

any examination pursuant to Section 6(1) of the National Audit Act 1983 of the economy, efficiency and effectiveness with which the Department has used its resources; or

disclosing any Confidential Information obtained from the Contractor:i.

to any government department or any other Contracting Authority. All government departments or Contracting Authorities receiving such Confidential Information shall be entitled to further disclose the Confidential Information to other government departments 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 government department or any Contracting Authority; or

ii.

to any person engaged in providing any services to the Department for any purpose relating to or ancillary to the Contract;

provided that in disclosing information under sub-paragraph (b) the Department discloses only the information which is necessary for the purpose concerned and requires that the information is treated in confidence and that a confidentiality undertaking is given where appropriate. 23.7

Nothing in this Condition 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 does not result in a disclosure of Confidential Information or an infringement of Intellectual Property Rights.

23.8

In the event that the Contractor fails to comply with this Condition 23, the Department reserves the right to terminate the Contract by notice in writing with immediate effect.

23.9

The provisions under this Condition are without prejudice to the application of the Official Secrets Acts 1911 to 1989 to any Confidential Information.

24.

FREEDOM OF INFORMATION

24.1

The Contractor acknowledges that the Department is subject to the requirements of the FOIA and the Environmental Information Regulations and shall assist and cooperate with the Department (at the Contractor’s expense) to enable the Client to comply with these Information disclosure requirements.

24.2

The Contractor shall and shall procure that its sub-contractors shall:

24.3

24.4

a.

transfer the Request for Information to the Department as soon as practicable after receipt and in any event within [two]Working Days of receiving a Request for Information;

b.

provide the Department with a copy of all Information in its possession or power in the form that the Client requires within [five] Working Days (or such other period as the Department may specify) of the Department requesting that Information; and

c.

provide all necessary assistance as reasonably requested by the Department to enable the Department to respond to a Request for Information within the time for compliance set out in section 10 of the FOIA [or regulation 5 of the Environmental Information Regulations].

The Department shall be responsible for determining at its absolute discretion whether the Commercially Sensitive Information and/or any other Information: a.

is exempt from disclosure in accordance with the provisions of the FOIA or the Environmental Information Regulations;

b.

is to be disclosed in response to a Request for Information, and in no event shall the Contractor respond directly to a Request for Information unless expressly authorised to do so by the Department.

The Contractor acknowledges that the Department may, acting in accordance with the Department for Constitutional Affairs’ Code of Practice on the Discharge of Functions of Public Authorities under Part I of the Freedom of Information Act 2000, be obliged under the FOIA, or the Environmental Information Regulations to disclose Information:a.

without consulting with the Contractor, or

b.

following consultation with the Contractor and having taken its views into account.

24.5

The Contractor shall ensure that all information produced in the course of the Contract or relating to the Contract is retained for disclosure and shall permit the Department to inspect such records as requested from time to time.

24.6

The Contractor acknowledges that any lists or schedules provided by it outlining Confidential Information are of indicative value only and that the Department may nevertheless be obliged to disclose Confidential Information in accordance with Clause 24.4.

25.

PUBLICITY

25.1

The Contractor shall not make any public statement relating to the existence or performance of the Contract without prior approval, which shall not be unreasonably withheld.

26.

RIGHT OF AUDIT

26.1

The Contractor shall keep secure and maintain until two years after the final payment of all sums due under the Contract, or such longer period as may be agreed between the parties, full and accurate records of the Services, all expenditure reimbursed by the Department and all payments made by the Department.

26.2

The Contractor shall grant to the Department or its authorised agents, such access to those records as they may reasonably require in compliance with the Contract.

27

DATA PROTECTION ACT 1998

27.1

The Contractor shall not disclose or allow access to any personal data provided by the Department or acquired by the Contractor during the course of tendering for or executing the contract, other than to a person employed or engaged by the Contractor or any sub-contractor, agent or other person concerned with the same.

27.2

Any disclosure of or access to personal data allowed under Condition 26.1 shall be made in confidence and shall extend only so far as that which is specifically necessary for the purpose of the Contract.

27.3

The Contractor shall store or process such personal data only at sites specifically agreed in writing, in advance, with the Department.

27.4

If the Contractor fails to comply with any provision of this Condition then the Department may summarily determine the Contract by notice in writing to the Contractor provided always that such determination shall not prejudice or affect any right of action or remedy which shall have accrued or shall accrue thereafter to the Department.

27.5

If the Contractor or any employee, servant agent or sub contractor of the Contractor, having obtained without the consent of the Department personal data within the meaning of the Data Protection Act, directly or indirectly discloses or publishes the data to any other person or allows improper access to the data, or in any event directly or indirectly causes the loss, damage, or destruction of such data, he shall indemnify the Department against all claims, proceedings, costs and expenses in respect of any damage or distress suffered whereby by any person.

27.6

The decision of the Department upon matters arising under this clause shall be final and conclusive.

28.

INDEMNITY AND INSURANCE

28.1

The Contractor shall indemnify the Department to a limit of £5,000,000 (five million pounds) in respect of any one incident or series of incidents arising out of his performance of the Contract against all claims, proceedings, actions, damages, legal costs, expenses and any other liabilities in respect of any loss of or damage to property which is caused directly or indirectly by any act or omission of the Contractor. Indemnity in respect of death or personal injury shall be unlimited. This condition 28.1 shall not apply to the extent that the Contractor is able to demonstrate that such death or personal injury, or loss or damage, was not caused or contributed to by his negligence or default, or the negligence or default of his Staff or sub-contractors, or by any circumstances within his or their control.

28.2

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 risks which may be incurred by the Contractor, arising out of the Contractor’s performance of the Contract, in respect of death or personal injury, or loss of or damage to property. Such policies shall include cover in respect of any financial loss arising from any advice given or omitted to be given by the Contractor.

28.3

In the case of ships assets, this will involve items such as the provision of Hull and Machinery, War Risk and P&I Insurances

28.4

The Contractor shall hold employer’s liability insurance in respect of Staff in accordance with any legal requirement for the time being in force.

28.5

The Contractor shall produce to the Authorised Representative, on request, copies of all insurance policies referred to in this Condition or other evidence confirming the existence and extent of the cover given by those policies, together with receipts or other evidence of payment of the latest premiums due under those policies.

28.6

The terms 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 this Condition.

29.

INDEMNITY PERFORMANCE BOND

29.1

The Contractor shall deliver to the Department the Performance Bond on the execution of this Contract (or such later date as may be permitted by the Department)

29.2

Nothing herein or in the Performance Bond shall in any way affect or diminish the obligations of the Contractor herein which shall be required to be complied with in full.

29.3

The Contractor shall not be entitled to receive any Payment under this Contract until such time as the Performance Bond is furnished to the Department.

29.4

The Surety shall be a person authorised to issue bonds in Northern Ireland.

29.5

For the purposes of this Clause, the Department will consider the provision of the Performance Bond by an approved sub-contractor of the Contractor provided such Performance Bond: 29.5.1

is in the same form as the Performance Bond;

29.5.2

is for the agreed amount of the Performance Bond; and,

29.5.3

in particular, extends to and covers the obligations of the Contractor under this Contract.

30.

CORRUPT GIFTS AND PAYMENTS OF COMMISSION

30.1

The Contractor shall not: 30.1.1 offer or give or agree to give any person in Her Majesty’s Service any gift or consideration of any kind as an inducement or reward for doing or forbearing to do or for having done or forborne to do any act in relation to the obtaining or execution of this Contract or any other contract for Her Majesty’s Service and/or for showing or forbearing to show favour or disfavour to any person in relation to this contract or any other contract for Her Majesty’s Service; 30.1.2 enter into this Contract or any other contract with any Government Department in connection with which commission has been paid or agreed to be paid by him, or on his behalf, or to his knowledge, unless before the Contract is made particulars of any such commission and of the terms and conditions of any agreement for the payment thereof have been disclosed in writing to the Department.

30.2

Any breach of this Condition by the Contractor or by anyone employed by him or acting on his behalf (whether with or without the knowledge of the Contractor) or the commission of any offence by the Contractor or by anyone employed by him or acting on his behalf, (either with or without the knowledge of the Contractor) under the Prevention of Corruption Acts, 1889 to 1916, in relation to this Contract or any other contracts for Her Majesty’s Service, shall entitle the Department to determine the Contract and recover from the Contractor the amount of any loss resulting from such determination and/or to recover from the Contractor the amount or value of any such gift, consideration or commission.

30.3

Any dispute, difference or question arising in respect of either the effect or the interpretation of this clause or the amount recoverable hereunder by the Department from the Contractor or the right of the Department to determine the Contract, or the amount or value of any such gift, consideration or commission shall be decided by the Department whose decision shall be final and conclusive.

31.

STATUTORY AND OTHER REGULATIONS

31.1

The Contractor shall be deemed to have acquainted himself with any and all Acts of Parliament, Statutory Regulations, or other such laws, recommendations, guidance or practices as may affect the provision of the service(s) specified under the Contract.

31.2

The Contractor shall be deemed to have acquainted himself with British/European Standards, Codes of Practice as may be relevant to this Contract.

31.3

The Contractor shall adequately train, instruct and supervise staff to ensure that so far as is reasonably practical the standards and codes of practice are observed.

32.

EQUALITY OF OPPORTUNITY

32.1. The Contractor shall comply with all applicable fair employment, equality of treatment and anti-discrimination legislation, including, in particular, the Employment (Northern Ireland) Order 2002, the Fair Employment and Treatment (Northern Ireland) Order 1998, the Sex Discrimination (Northern Ireland) Order 1976 and 1988, the Employment Equality (Sexual Orientation) Regulations (Northern Ireland) 2003, the Equal Pay Act (Northern Ireland) 1970, the Disability Discrimination Act 1995, the Race Relations (Northern Ireland) Order 1997, the Employment Relations (Northern Ireland) Order 1999 and the Employment Rights (Northern Ireland) Order 1996 and shall use his best endeavours to ensure that in his employment policies and practices and in the delivery of the services required of the Contractor under this agreement he has due regard to the need to promote equality of treatment and opportunity between: a.

persons of different religious beliefs or political opinions;

b. men and women or married and unmarried persons; c.

persons with and without dependants (including women who are pregnant or on maternity leave and men on paternity leave);

d.

persons of different racial groups (within the meaning of the Race Relations (Northern Ireland) Order 1997);

e.

persons with and without a disability (within the meaning of the Disability Discrimination Act 1995);

f.

persons of different ages; and

g.

persons of differing sexual orientation.

32.2. The Contractor shall take all reasonable steps to ensure the observance of the provisions of the above clause (31.1) by all servants, agents, employees, consultants and sub-contractors of the Contractor. 33.

HEALTH AND SAFETY

33.1

The Contractor’s attention is drawn to the provision of the Health and Safety at Work (Northern Ireland) Order 1978 and in particular to Article 4 “General Duties of Employers to their Employees”.

33.2

The Contractor shall adequately train, instruct and supervise staff to ensure that so far as is reasonably practicable, the health and safety of all persons who may be affected by the services provided under the Contract. Before commencing work on the Contract the Contractor, shall prepare a written policy of the health and safety of staff employed in connection with the Contract together with written organisational arrangements for carrying out the policy.

34.

SOCIAL SECURITY SYSTEM

34.1

The Contractor shall not employ any person whom he knows or ought to know is by reason of his employment engaged in any unlawful procurement of social security benefits or tax exemptions and the Contractor shall not make, facilitate or participate in the procurement of, any unlawful payments whatsoever, whether in the nature of social security fraud, or evasion of tax, or otherwise.

34.2

The Contractor shall prepare and maintain such records of his staff and all other persons engaged in the performance of this Contract by the Contractor as the Department may from time to time require.

34.3

Without prejudice to Condition 33.2 the Contractor shall forthwith on demand by the Department furnish the Department with the names, addresses and national insurance numbers of all persons employed by him under the contracts of service and shall forthwith on demand furnish the Department with the names, addresses, periods of employment and exemption certificates of all persons employed by him under contracts for services.

34.4

The Contractor shall permit the Department, its servants or agents at all reasonable times to enter on any premises of the Contractor for the purpose of inspection and investigation of the employment, social security and tax records of any person employed by the Contractor or engaged by him to carry out any works under the contract.

35.

CONFLICT OF INTEREST

35.1

Provided that there shall be no conflict of interest and the Contractor shall fulfil his obligations to the Department the Contractor shall be at liberty to enter into agreement with other public sector organisations elsewhere in the United Kingdom for the provision of services.

35.2

The Contractor warrants that he is not at the date hereof retained by any interest that could be in conflict with the work of the Department and that for the duration of this Contract he will not accept instructions from any such interest either directly or indirectly nor do any other act which may give rise to conflict of interest.

36.

OFFICIAL SECRETS ACT

36.1

The provisions of the Official Secrets Act 1911 - 1989 in general and the provisions of the Official Secrets Act 1989 in particular shall apply to the Contractor, the staff and all persons engaged whether as agents or sub-contractors by the Contractor on any work under the Contract, and shall continue to apply without limitation of time after the expiry or termination of the Contract, and the Contractor shall bring to the notice of each and every such person the provisions of the said Acts.

36.2

If the Department shall at any time so direct, a declaration of knowledge of these provisions in such terms as the Department shall require shall be signed by every such person as the Department shall direct and be delivered to the Department by the Contractor.

37.

TRANSFER, SUB-CONTRACTING AND ASSIGNMENT

37.1

The Contractor shall not transfer or assign this Contract or a part thereof and shall not sub-contract any part of the provision of the services without the prior written consent of the Department.

37.2

It is a condition of such consent that the sub-contractor must undertake directly to perform the terms of the Contract in respect of the sub-contracted services as if he were the contractor.

37.3

Any consent to sub-contract will not release the Contractor from any liability to the Department in respect of the sub-contracted section and the contractors shall be responsible for the acts, defaults or neglect of any sub-contractor or their agents or employees in all respects as they were the acts, defaults or neglect of the contractor or their agents, or employees.

37.4

Where the Contractor enters a sub-contract with a contractor for the purpose of performing the Contract, he shall cause a term to be included in such sub-contract which requires payment to be made to the contractor within a specified period not exceeding 30 days from receipt of a valid invoice as defined by the sub-contract requirements.

37.5

The Department may assign or in any other way dispose of its rights and obligations under this Contract or any part of it to any Department, Office or Agency of the Crown or any other body provided that any such assignment or other disposal shall not increase the burden of the Contractors obligations under this Contract.

38.

SEVERABILITY

38.1

If any provision of the Contract is held invalid, illegal or unenforceable for any reason by any court of competent jurisdiction, such provision shall be severed and the remainder of the provisions of the Contract shall continue in full force and effect as if the Contract had been executed with the invalid, illegal or unenforceable provision eliminated. In the event of a holding of invalidity so fundamental as to prevent the accomplishment of the purpose of the Contract, the parties shall immediately commence negotiations in good faith to remedy the invalidity.

39.

WAIVER

39.1

The failure of either party to exercise any right or remedy shall not constitute a waiver of that right or remedy.

39.2

No waiver shall be effective unless it is communicated to the other party in writing.

39.3

A waiver of any right or remedy arising from a breach of contract shall not constitute a waiver of any right or remedy arising from any other breach of the Contract.

40.

VARIATIONS

40.1

The Contract shall not be varied unless such variation is made in writing by means of a Variation to Contract Form as set out at Appendix A.

40.2

In the event of an emergency the Department shall have the right to vary the Contract by oral instructions given by the Departments’ Authorised Representative, which shall be confirmed by the issue of a Variation to Contract Form within 7 days.

40.3

The Department shall have the right to vary the Services at any time, subject to the Variation being related in nature to the Services being provided, and no such Variation shall vitiate the Contract.

40.4

The Contractor may request a Variation provided that:

40.5

40.6

a.

the Contractor shall notify the Department’s Authorised Representative in writing of any additional or changed requirement which it considers should give rise to a Variation within 7 days of such occurrence first becoming known to the Contractor;

b.

any proposed Variation shall be fully supported by a quotation as detailed in Condition 39.5

The Contractor, within 14 days of being requested by the Department’s Authorised Representative or where requesting a Variation pursuant to Condition 39.4, shall submit a quotation to the Department, such quotation to contain at least the following information: a.

a description of the work together with the reason for the proposed Variation;

b.

the price, where applicable;

c.

details of the impact, if any, on other aspects of the Contract.

The price for any Variation shall, unless otherwise agreed between the Parties, be calculated in the following order of precedence: a.

using the Prices or Rates;

b.

prices pro-rata to the Prices or Rates;

c.

prices based on the Prices or Rates.

40.7

The Department shall either approve or reject any Variation proposed by the Contractor.

40.8

In the event that the Contractor disputes any decision by the Department to reject a proposed Variation or contends that a proposed Variation is outstanding or continues to be required, the Contractor shall update the information contained in his quotation for the proposed Variation every Month and shall send the updated information to the Department.

41.

PERFORMANCE MONITORING

41.1

The performance of the Contractor will be subject to monitoring and review against agreed quality aspects.

41.2

Where applicable performance and or price indices may be applied by the Department to measure the performance of the Contractor.

41.3

The Contractor shall ensure that information, records, and documentation necessary to monitor effectively the performance of the Contract are maintained and are available at all times to the Authorised Representative.

41.4

A relief event is one which allows one or other of the parties to a contract relief from the usual consequences of not fulfilling their part of the agreement. The occurrence of a relief event will not result in additional subsidy and the Department will not be liable to the operator for any loss of earnings. This aspect of the contract is particularly relevant to the performance regime and dispute mechanism. The Department proposes to classify the following as relief events: • • • •

• • •

42.

Weather and/or tidal conditions (at the discretion of the vessel's Master); Safety (at the discretion of the vessel's Master); Events outwith the operator's control such as unavailability of harbours or unrelated strike action; Where a delayed or diverted sailing has a knock-on effect on subsequent sailings the delay should be taken into account when assessing whether the subsequent sailings are late; Cancellation or late arrival/departure of a sailing for safety reasons; any decision made by the Master in the interests of protecting the safety of life at sea; a sailing which is delayed due to the pre-notified late arrival of passengers, vehicles, freight and livestock and where such a delay is of direct benefit to the service users. (Before such an event is accepted as a Relief Event, the full circumstances of the delayed/cancelled sailing must be detailed in writing by the operator and submitted to the Department for consideration. The Department’s decision will be final as to whether such an occurrence warrants Relief Event status.)

FORCE MAJEURE

42.1

Neither party shall be liable to the other party by reason of any failure or delay in performing its obligations under the Contract which is due to Force Majeure, where there is no practicable means available to the party concerned to avoid such failure or delay.

42.2

If either party becomes aware of any circumstances of Force Majeure which give rise to any such failure or delay, or which appear likely to do so, that party shall promptly give notice of those circumstances as soon as practicable after becoming aware of them and shall inform the other party of the period for which it estimates that the failure or delay will continue.

42.3

For the purposes of this Condition, “Force Majeure” means any event or occurrence which is outside the control of the party concerned and which is not attributable to any act or failure to take preventive action by the party concerned, but shall not include any industrial action occurring within the Contractor’s organisation or within any sub-contractor’s organisation.

42.4

Any failure or delay by the Contractor in performing his obligations under the Contract which results from any failure or delay by an agent, sub-contractor or supplier shall be regarded as due to Force Majeure only if that agent, subcontractor or supplier is itself impeded in complying with an obligation to the Contractor by Force Majeure.

43.

BANKRUPTCY

43.1

In the event of the Contractor becoming bankrupt or making a composition or arrangement with his creditors or having a winding up order made or (except for the purpose of reconstruction) a resolution for voluntary winding up passed or a receiver or manager of his business or undertaking duly appointed, or possession taken, by or on behalf of the holders or any debentures secured by a floating charge of any property comprised in or subject to the floating charge, the Department may at its discretion forthwith determine the employment of the Contractor under this Contract. The said employment may be reinstated and continued by the Department and the Contractor, if his trustee in bankruptcy, liquidator, receiver or manager, as the case may be, so agree.

44.

TERMINATION ON DEFAULT

44.1

The Department may terminate the Contract, or terminate the provision of any part of the Services, by written notice to the Contractor with immediate effect if the Contractor is in default of any obligation under the Contract and: a.

the Contractor has not remedied the default to the satisfaction of the Department within 30 days, or such other period as may be specified by the Department, after service of written notice specifying the default and requiring it to be remedied; or

b.

the default is not capable of remedy; or

c.

the default is a fundamental breach of the Contract.

45.

BREAK

45.1

The Department shall have the right to terminate the Contract, or to terminate the provision of any part of the Services, at any time by giving 3 Months’ written notice to the Contractor. The Department may extend the period of notice at any time before it expires, subject to agreement on the level of Services to be provided by the Contractor during the period of extension.

46.

CONSEQUENCES OF TERMINATION

46.1

If the Department terminates the Contract under Condition 43, or terminates the provision of any part of the Services under that Condition, and then makes other arrangements for the provision of the Services, the Department shall be entitled to recover from the Contractor the cost of making those other arrangements and any additional expenditure incurred by the Department throughout the remainder of the Contract Period. Where the Contract is terminated under Condition 43, no further payments shall be payable by the Department until the Department has established the final cost of making those other arrangements.

46.2

If the Department terminates the Contract, or terminates the provision of any part of the Services, under Condition 44, the Department shall reimburse the Contractor in respect of any loss, not including loss of profit, actually and reasonably incurred by the Contractor as a result of the termination, provided that the Contractor takes immediate and reasonable steps, consistent with the obligation to provide the Services during the period of notice, to terminate all contracts with sub-contractors on the best available terms, to cancel all capital and recurring cost commitments, and to reduce equipment and labour costs as appropriate.

46.3

For the purposes of Condition 45.2 the Contractor shall submit to the Authorised Representative, within 14 working days after service of the notice, a fully itemised and costed list, with supporting evidence, of all losses incurred by the Contractor as a result of the termination of the Contract, or the termination of any part of the Services, to be updated only in respect of ongoing costs each week until the Contract is terminated.

46.4

The Department shall not be liable under Condition 45.2 to pay any sum which, when added to any sums paid or due to the Contractor under the Contract, exceeds the total sum that would have been payable to the Contractor if the provision of the Services had been completed in accordance with the Contract.

47.

TRANSFER OF UNDERTAKING AND PROTECTION OF EMPLOYMENT (TUPE)

47.1

Tenderers are advised to seek their own legal advice with regard to the application of TUPE and state clearly when returning their tender documentation whether or not they have done so.

48.

ARBITRATION

48.1

All disputes, differences or questions between the parties to the Contract with respect to any matter arising out of or relating to the Contract, other than a matter of things as to which the decision of the Department is under the Contract to be final and conclusive, shall after written notice by either party to the Contract to the other be referred to a single arbitrator agreed for that purpose or in default of such agreement within twenty-one (21) days, appointed at the request of either party by the President of the Law Society of Northern Ireland. The decision of such arbiter shall be final and binding on the parties of the Contract.

48.2

The provision of the Arbitration Act 1996 shall apply to any arbitration under this contract and such arbitration shall be conducted solely within Northern Ireland.

49.

LAW

49.1

This Contract shall in all respects be governed by and construed in accordance with the laws of Northern Ireland and the parties hereby agree that the Courts of Northern Ireland shall have exclusive jurisdiction to hear and determine any dispute arising out of or in connection with this Contract.

Appendix A (see Condition 39.1) VARIATION TO CONTRACT FORM CONTRACT TITLE: ............................................................................................. FOR THE PROVISION OF: ................................................................................. CONTRACT REF: .............. VARIATION NO: ............... DATE: / / BETWEEN:

1.

The Contract is varied as follows:

2.

Words and expressions in this Variation shall have the meaning/s given to them in the Contract.

3.

The Contract, including any previous Variation(s), shall remain effective and unaltered except as amended by this Variation.

SIGNED: For: The Department

For: The Contractor

By: ................................................... Full Name: ...................................... Grade: ............................................. Date: .........................................…..

By: .........................…............. Full Name: ...........….....…....... Title: .....................….….......... Date: ....................…...............

Appendix B (see Condition 1.1C)

AUTHORISED REPRESENTATIVES The Authorised Representative of the Department for the purposes of the Contract is:

The Authorised Representative of the Contractor for the purpose of the Contract is: