RE-TENDERING AND HANDOVER. 19.1 Within 21 days of being so requested by the Authority's Representative the Contractor shall provide: (a) and thereafter keep updated and accessible to the Authority, in a fully indexed and catalogued format, all the information reasonably necessary to enable the Authority to issue tender documents for the future provision of the Services and for a third party to prepare an informed, non-qualified offer for those Services and not be disadvantaged in any procurement process compared to the Contractor (if the Contractor is invited to participate). This information shall include, but not be limited to, details of Staff as referred to in Condition 19.2, a description of the Services and the methods used by the Contractor to provide the Services, details as to key terms of any third party contracts and licences, copies of third party contracts and licences which are to be transferred to the Authority or a Successor Supplier and details of ongoing and threatened disputes in relation to the provision of the Services. This information shall be updated on a continuing basis. (b) a draft exit plan to be agreed with the Authority that shall set out each Parties obligations in detail in order to ensure a smooth and efficient transfer of the Services to the Authority for a Successor Supplier. The Parties shall review and update the exit plan annually and as soon as reasonably practicable in the event of a material change in any aspect of the Services which could reasonably be expected to impact upon the exit plan in order to ensure that the exit plan remains relevant. 19.2 Where, in the opinion of the Authority's Representative, the TUPE Regulations are likely to apply on the termination or expiration of the Contract, the information to be provided by the Contractor under Condition 19.1 shall include, as applicable, accurate information relating to the Staff who would be transferred under the same terms of employment under the TUPE Regulations, including in particular:- a) the number of Staff who would be transferred, but with no obligation on the Contractor to specify their names; b) in respect of each of those members of Staff their age, job title, sex, salary, benefits entitlement, length of service, contractual notice period, hours of work, overtime hours and rates, any other factors affecting redundancy entitlement and any outstanding claims arising from their employment; c) the general terms and conditions of employment applicable to those members of Staff, including probationary periods, retirement age, periods of notice, current pay agreements, pension arrangements, working hours, entitlement to annual leave, sick leave, maternity and special leave, terms of mobility, any loan or leasing schemes, any relevant collective agreements, facility time arrangements and additional employment benefits; d) all disciplinary, performance and grievance action taken in relation to or by each individual member of Staff within the previous two years; e) information of any court or tribunal case, claim or action brought by each member of Staff within the previous two years or that the Contractor has reasonable grounds to believe a member of Staff may bring against the Contractor; f) all long term absences; and g) details of any arrangements or collective agreements with trade unions or organisation of body of employees including elected representatives. 19.3 The Authority shall take all necessary precautions to ensure that the information referred to in Condition 19.2 is given only to service providers who have qualified to tender for the future provision of the Services. The Authority shall require that such service providers shall treat that information in confidence; that they shall not communicate it except to such persons within their organisation and to such extent as may be necessary for the purpose of preparing a response to an invitation to tender issued by the Authority; and that they shall not use it for any other purpose. 19.4 The Contractor shall indemnify the Authority and a Successor Supplier against any claim made against the Authority and/or a Successor Supplier at any time by any person in respect of any liability incurred by the Authority and/or a Successor Supplier arising from any deficiency or inaccuracy in information which the Contractor is required to provide under Condition 19.1 and 19. 19.5 The Contractor shall not – a) at any time during the Contract Period, move any persons in his employment into the undertaking or relevant part of an undertaking which provides the Services, who do not meet the standards of skill and experience, or who are in excess of the number, required for the purposes of the Contract; or b) make any substantial change in the terms and conditions of employment of any Staff which is inconsistent with the Contractor's established employment and remuneration policies. 19.6 Where, in the opinion of the Authority's Representative, any change or proposed change in the Staff in the undertaking or relevant part of an undertaking, or any change in the terms and conditions of employment of such Staff, would be in breach of Condition 19.5, the Authority shall have the right to make representations to the Contractor against the change or proposed change, and – a) where, in the opinion of the Authority's Representative, the Contractor has acted in breach of Condition 19.5, the Authority shall have the right to give notice to the Contractor requiring him to remedy the breach within 30 days; and b) if the Contractor has not remedied the breach to the satisfaction of the Authority's Representative by the end of the period of 30 days, the Authority shall have the right to terminate the Contract by reason of the Default of the Contractor, in accordance with Condition 42. 19.7 The Contractor shall allow access to the Site, in the presence of the Authority's Representative, to any person representing any service provider whom the Authority has selected to tender for the future provision of the Services. 19.8 For the purpose of access to the Site in accordance with Condition 19.7, where the Site is on the Contractor's premises, the Authority shall give the Contractor 7 days' notice of a proposed visit together with a list showing the names of all persons who will be attending those premises. 19.9 All persons who attend the Contractor's premises for the purposes of Condition 19.7 shall comply with the Contractor's security procedures, subject to such compliance not being in conflict with the objective of the visit. 19.10 The Contractor shall co-operate fully with the Authority during the handover arising from the completion or earlier termination of the Contract. This co-operation, during the Setting up Operations period of the new contractor, shall extend to allowing full access to, and providing copies of, all documents, reports, summaries and any other information necessary in order to achieve an effective transition without disruption to routine operational requirements. 19.11 Within 10 working days of being so requested by the Authority's Representative, the Contractor shall transfer to the Authority, or any Person designated by the Authority, free of charge, all computerised filing, recording, documentation, planning and drawing held on software and utilised in the provision of the Services. The transfer shall be made in a fully indexed and catalogued disk format, to operate on a proprietary software package identical to that used by the Authority. 19.12 During the period following the earlier of: (a) the provision of notice of termination to the Contractor; or (b) the public announcement of a re-tendering of the Services, the Contractor shall not without the prior written agreement of the Authority’s Representative vary the terms and conditions of employment or engagement of any Staff, employ or engage any person who would become a Termination Transferring Employee, change the role or responsibilities of any person so that he/she becomes involved in the provision of the Services, terminate (or give notice to terminate) the employment or engagement of any of the Staff; nor reduce or vary the involvement of any Staff in the provision of the Services. 19.13 No later than one (1) month prior to the Termination Transfer Date, the Contractor shall compile a draft list for approval by the Authority of the Staff whom it considers will transfer to the Authority or a Successor Supplier as a result of the TUPE Regulations. The draft list shall be finalised by the Parties prior to the Termination Transfer Date. 19.14 At the Termination Transfer Date, the Authority and the Contractor accept that in the event that the Services or substantially similar services are to be provided by the Authority and/or a Successor Supplier then this may constitute a transfer to which the TUPE Regulations apply. In the event that Authority’s Representative determines that the TUPE Regulations apply in relation to the Termination Transfer and/or the final list of Termination Transfer Employees, the Termination Transfer Employees shall transfer to the Authority and/or the Successor Supplier on the Termination Transfer Date. 19.15 The Authority will, or shall procure that the Successor Supplier will, in good time before the Termination Transfer Date provide to the Contractor all such information as is necessary for the Contractor or its sub- contractors and the Authority or Successor Supplier to discharge their duties under Regulation 13 of the TUPE Regulations. 19.16 The Contractor shall indemnify the Authority and the Successor Supplier from and against any cost (including reasonable legal costs), claim, liability, demand, expense or other legal recourse arising out of or in connection with: (a) any claim by any Termination Transfer Employee in respect of any fact or matter concerning or arising from that Termination Transfer Employee’s employment, or its termination, before the Termination Transfer Date, including (but not limited to) any claims of unfair dismissal, wrongful dismissal, unlawful deduction from wages, breach of contract, discrimination on the grounds of sex, race, disability, religion or belief, age and sexual orientation or any claim for a redundancy payment; (b) any proceedings, claim or demand by the H M Revenue & Customs or other statutory authority in respect of any financial obligations including, but not limited to, PAYE and primary and secondary national insurance contributions in relation to the Termination Transfer Employees, to the extent that the proceedings, claim or demand by the Inland Revenue or other statutory authority relates to financial obligations arising before the Termination Transfer Date; (c) any claim by any Termination Transfer Employee or any appropriate representative of any Termination Transfer Employee relating to any failure by the Contractor or any sub-contractor to comply with the obligations of Regulation 13 of the TUPE Regulations; and (d) any claim by any person (not being a Termination Transfer Employee) or his representative in respect of the termination of such person’s employment or engagement by the Contractor or its sub-contractor occurring before the Termination Transfer Date. 19.17 If any contract of employment or engagement of any person, other than a Termination Transfer Employee, is, as a result of the commencement of the provision of the Services by the Authority or Successor Supplier deemed or alleged to have been effected between the Authority or Successor Supplier and such person, as a result of the TUPE Regulations, then: (a) the Authority or Successor Supplier may, within 1 month of becoming aware of the application of the TUPE Regulations to any such contract, terminate that contract; and (b) if any such contract is terminated the Contractor will indemnify the Authority and/or Successor Supplier against: (i) all salary and benefits due to that person in respect of their employment between the Termination Transfer Date and the date of termination of employment; and (ii) all liabilities, damages, costs (including reasonable legal costs), claims, awards and expenses arising in relation to such person out of the termination of such person’s employment. The Contractor procures that its sub-contractors shall indemnify the Authority and any Successor Supplier and their sub-contractors (as applicable) to the same extent as the Contractor is providing indemnities under this Condition 19. To the extent that non-employee personnel do not transfer to the Authority or a Successor Supplier and their sub-contractors (as applicable) by virtue of the above provisions, the Contractor shall use all reasonable endeavours to ensure that those non-employee personnel, which the Authority or a Successor Provider (or their sub-contractors as applicable) express an intention to retain, transfer accordingly on the Termination Transfer Date. The Contractor shall not (and shall procure that its sub-contractors shall not) take any steps or make any undertakings to such non-employee personnel which has the effect or aims to have the effect of discouraging or preventing those personnel from working for the Authority or a Successor Supplier.

Appears in 1 contract

Samples: Provision of a Demining & Land Release Contractor

RE-TENDERING AND HANDOVER. 19.1 Within 21 days of being so requested by the Authority's Representative the Contractor shall provide: (a) and thereafter keep updated and accessible to the Authority, in a fully indexed and catalogued format, all the information reasonably necessary to enable the Authority to issue tender documents for the future provision of the Services and for a third party to prepare an informed, non-qualified offer for those Services and not be disadvantaged in any procurement process compared to the Contractor (if the Contractor is invited to participate). This information shall include, but not be limited to, details of Staff as referred to in Condition 19.2, a description of the Services and the methods used by the Contractor to provide the Services, details as to key terms of any third party contracts and licences, copies of third party contracts and licences which are to be transferred to the Authority or a Successor Supplier and details of ongoing and threatened disputes in relation to the provision of the Services. This information shall be updated on a continuing basis. (b) a draft exit plan to be agreed with the Authority that shall set out each Parties obligations in detail in order to ensure a smooth and efficient transfer of the Services to the Authority for a Successor Supplier. The Parties shall review and update the exit plan annually and as soon as reasonably practicable in the event of a material change in any aspect of the Services which could reasonably be expected to impact upon the exit plan in order to ensure that the exit plan remains relevant. 19.2 Where, in the opinion of the Authority's Representative, the TUPE Regulations are likely to apply on the termination or expiration of the Contract, the information to be provided by the Contractor under ~~Condition~~ Condition 19.1 shall include, as applicable, accurate information relating to the Staff who would be transferred under the same terms of employment under the TUPE Regulations, including in particular:- a) the number of Staff who would be transferred, but with no obligation on the Contractor to specify their names; b) in respect of each of those members of Staff their age, job title, sex, salary, benefits entitlement, length of service, contractual notice period, hours of work, overtime hours and rates, any other factors affecting redundancy entitlement and any outstanding claims arising from their employment; c) the general terms and conditions of employment applicable to those members of Staff, including probationary periods, retirement age, periods of notice, current pay agreements, pension arrangements, working hours, entitlement to annual leave, sick leave, maternity and special leave, terms of mobility, any loan or leasing schemes, any relevant collective agreements, facility time arrangements and additional employment benefits; d) all disciplinary, performance and grievance action taken in relation to or by each individual member of Staff within the previous two years; e) information of any court or tribunal case, claim or action brought by each member of Staff within the previous two years or that the Contractor has reasonable grounds to believe a member of Staff may bring against the Contractor; f) all long term absences; and g) details of any arrangements or collective agreements with trade unions or organisation of body of employees including elected representatives. 19.3 The Authority shall take all necessary precautions to ensure that the information referred to in Condition 19.2 is given only to service providers who have qualified to tender for the future provision of the Services. The Authority shall require that such service providers shall treat that information in confidence; that they shall not communicate it except to such persons within their organisation and to such extent as may be necessary for the purpose of preparing a response to an invitation to tender issued by the Authority; and that they shall not use it for any other purpose. 19.4 The Contractor shall indemnify the Authority and a Successor Supplier against any claim made against the Authority and/or a Successor Supplier at any time by any person in respect of any liability incurred by the Authority and/or a Successor Supplier arising from any deficiency or inaccuracy in information which the Contractor is required to provide under Condition 19.1 and 1919.2. 19.5 The Contractor shall not – a) at any time during the Contract Period, move any persons in his employment into the undertaking or relevant part of an undertaking which provides the Services, who do not meet the standards of skill and experience, or who are in excess of the number, required for the purposes of the Contract; or b) make any substantial change in the terms and conditions of employment of any Staff which is inconsistent with the Contractor's established employment and remuneration policies. 19.6 Where, in the opinion of the Authority's Representative, any change or proposed change in the Staff in the undertaking or relevant part of an undertaking, or any change in the terms and conditions of employment of such Staff, would be in breach of Condition 19.5, the Authority shall have the right to make representations to the Contractor against the change or proposed change, and ~~– a)~~ – where, in the opinion of the Authority's Representative, the Contractor has acted in breach of Condition 19.5, the Authority shall have the right to give notice to the Contractor requiring him to remedy the breach within 30 days; ~~and b)~~ and if the Contractor has not remedied the breach to the satisfaction of the Authority's Representative by the end of the period of 30 days, the Authority shall have the right to terminate the Contract by reason of the Default of the Contractor, in accordance with Condition 42. 19.7 The Contractor shall allow access to the Site, in the presence of the Authority's Representative, to any person representing any service provider whom the Authority has selected to tender for the future provision of the Services. 19.8 For the purpose of access to the Site in accordance with Condition 19.7, where the Site is on the Contractor's premises, the Authority shall give the Contractor 7 days' notice of a proposed visit together with a list showing the names of all persons who will be attending those premises. 19.9 All persons who attend the Contractor's premises for the purposes of Condition 19.7 shall comply with the Contractor's security procedures, subject to such compliance not being in conflict with the objective of the visit. 19.10 The Contractor shall co-operate fully with the Authority during the handover arising from the completion or earlier termination of the Contract. This co-operation, during the Setting up Operations period of the new contractor, shall extend to allowing full access to, and providing copies of, all documents, reports, summaries and any other information necessary in order to achieve an effective transition without disruption to routine operational requirements. 19.11 Within 10 working days of being so requested by the Authority's Representative, the Contractor shall transfer to the Authority, or any Person designated by the Authority, free of charge, all computerised filing, recording, documentation, planning and drawing held on software and utilised in the provision of the Services. The transfer shall be made in a fully indexed and catalogued disk format, to operate on a proprietary software package identical to that used by the Authority. 19.12 During the period following the earlier of: (a) the provision of notice of termination to the Contractor; or (b) the public announcement of a re-tendering of the Services, the Contractor shall not without the prior written agreement of the Authority’s Representative vary the terms and conditions of employment or engagement of any Staff, employ or engage any person who would become a Termination Transferring Employee, change the role or responsibilities of any person so that he/she becomes involved in the provision of the Services, terminate (or give notice to terminate) the employment or engagement of any of the Staff; nor reduce or vary the involvement of any Staff in the provision of the Services. 19.13 No later than one (1) month prior to the Termination Transfer Date, the Contractor shall compile a draft list for approval by the Authority of the Staff whom it considers will transfer to the Authority or a Successor Supplier as a result of the TUPE Regulations. The draft list shall be finalised by the Parties prior to the Termination Transfer Date. 19.14 At the Termination Transfer Date, the Authority and the Contractor accept that in the event that the Services or substantially similar services are to be provided by the Authority and/or a Successor Supplier then this may constitute a transfer to which the TUPE Regulations apply. In the event that Authority’s Representative determines that the TUPE Regulations apply in relation to the Termination Transfer and/or the final list of Termination Transfer Employees, the Termination Transfer Employees shall transfer to the Authority and/or the Successor Supplier on the Termination Transfer Date. 19.15 The Authority will, or shall procure that the Successor Supplier will, in good time before the Termination Transfer Date provide to the Contractor all such information as is necessary for the Contractor or its ~~sub-~~ sub-contractors and the Authority or Successor Supplier to discharge their duties under Regulation 13 of the TUPE Regulations. 19.16 The Contractor shall indemnify the Authority and the Successor Supplier from and against any cost (including reasonable legal costs), claim, liability, demand, expense or other legal recourse arising out of or in connection with: (a) any claim by any Termination Transfer Employee in respect of any fact or matter concerning or arising from that Termination Transfer Employee’s employment, or its termination, before the Termination Transfer Date, including (but not limited to) any claims of unfair dismissal, wrongful dismissal, unlawful deduction from wages, breach of contract, discrimination on the grounds of sex, race, disability, religion or belief, age and sexual orientation or any claim for a redundancy payment; (b) any proceedings, claim or demand by the H M Revenue & Customs or other statutory authority in respect of any financial obligations including, but not limited to, PAYE and primary and secondary national insurance contributions in relation to the Termination Transfer Employees, to the extent that the proceedings, claim or demand by the Inland Revenue or other statutory authority relates to financial obligations arising before the Termination Transfer Date; (c) any claim by any Termination Transfer Employee or any appropriate representative of any Termination Transfer Employee relating to any failure by the Contractor or any sub-contractor to comply with the obligations of Regulation 13 of the TUPE Regulations; and (d) any claim by any person (not being a Termination Transfer Employee) or his representative in respect of the termination of such person’s employment or engagement by the Contractor or its sub-contractor occurring before the Termination Transfer Date. 19.17 If any contract of employment or engagement of any person, other than a Termination Transfer Employee, is, as a result of the commencement of the provision of the Services by the Authority or Successor Supplier deemed or alleged to have been effected between the Authority or Successor Supplier and such person, as a result of the TUPE Regulations, then: (a) the Authority or Successor Supplier may, within 1 month of becoming aware of the application of the TUPE Regulations to any such contract, terminate that contract; and (b) if any such contract is terminated the Contractor will indemnify the Authority and/or Successor Supplier against: (i) all salary and benefits due to that person in respect of their employment between the Termination Transfer Date and the date of termination of employment; ~~and (ii)~~ and all liabilities, damages, costs (including reasonable legal costs), claims, awards and expenses arising in relation to such person out of the termination of such person’s employment. The Contractor procures that its sub-contractors shall indemnify the Authority and any Successor Supplier and their sub-contractors (as applicable) to the same extent as the Contractor is providing indemnities under this Condition 19. To the extent that non-employee personnel do not transfer to the Authority or a Successor Supplier and their sub-contractors (as applicable) by virtue of the above provisions, the Contractor shall use all reasonable endeavours to ensure that those non-employee personnel, which the Authority or a Successor Provider (or their sub-contractors as applicable) express an intention to retain, transfer accordingly on the Termination Transfer Date. The Contractor shall not (and shall procure that its sub-contractors shall not) take any steps or make any undertakings to such non-employee personnel which has the effect or aims to have the effect of discouraging or preventing those personnel from working for the Authority or a Successor Supplier.

Appears in 1 contract

Samples: Fco Contract for Services

RE-TENDERING AND HANDOVER. ~~19.1~~ 19.1. Within 21 days of being so requested by the Authority's Representative the Contractor shall provide: (a) and thereafter keep updated and accessible to the Authority, in a fully indexed and catalogued format, all the information reasonably necessary to enable the Authority to issue tender documents for the future provision of the Services and for a third party to prepare an informed, non-qualified offer for those Services and not be disadvantaged in any procurement process compared to the Contractor (if the Contractor is invited to participate). This information shall include, but not be limited to, details of Staff as referred to in Condition 19.2, a description of the Services and the methods used by the Contractor to provide the Services, details as to key terms of any third party contracts and licences, copies of third party contracts and licences which are to be transferred to the Authority or a Successor Supplier and details of ongoing and threatened disputes in relation to the provision of the Services. This information shall be updated on a continuing basis. (b) a draft exit plan to be agreed with the Authority that shall set out each Parties obligations in detail in order to ensure a smooth and efficient transfer of the Services to the Authority for a Successor Supplier. The Parties shall review and update the exit plan annually and as soon as reasonably practicable in the event of a material change in any aspect of the Services which could reasonably be expected to impact upon the exit plan in order to ensure that the exit plan remains relevant. ~~19.2~~ 19.2. Where, in the opinion of the Authority's Representative, ~~the TUPE Regulations are~~ extant local labour law stemming from ARD 2001/23/EC is likely to apply on the termination or expiration of the Contract, the information to be provided by the Contractor under ~~Condition~~ Condition 19.1 shall include, as applicable, accurate information relating to the Staff who would be transferred under the same terms of employment under ~~the TUPE Regulations~~local ARD legislation, including in particular:- (a) the number of Staff who would be transferred, but with no obligation on the Contractor to specify their names; (b) in respect of each of those members of Staff their age, job title, sex, salary, benefits entitlement, length of service, contractual notice period, hours of work, overtime hours and rates, any other factors affecting redundancy entitlement and any outstanding claims arising from their employment; (c) the general terms and conditions of employment applicable to those members of Staff, including probationary periods, retirement age, periods of notice, current pay agreements, pension arrangements, working hours, entitlement to annual leave, sick leave, maternity and special leave, terms of mobility, any loan or leasing schemes, any relevant collective agreements, facility time arrangements and additional employment benefits; (d) all disciplinary, performance and grievance action taken in relation to or by each individual member of Staff within the previous two years; (e) information of any court or tribunal case, claim or action brought by each member of Staff within the previous two years or that the Contractor has reasonable grounds to believe a member of Staff may bring against the Contractor; (f) all long term absences; and (g) details of any arrangements or collective agreements with trade unions or organisation of body of employees including ~~elected representatives.~~elected ~~19.3~~ 19.3. The Authority shall take all necessary precautions to ensure that the information referred to in Condition 19.2 is given only to service providers who have qualified to tender for the future provision of the Services. The Authority shall require that such service providers shall treat that information in confidence; that they shall not communicate it except to such persons within their organisation and to such extent as may be necessary for the purpose of preparing a response to an invitation to tender issued by the Authority; and that they shall not use it for any other purpose. ~~19.4~~ 19.4. The Contractor shall indemnify the Authority and a Successor Supplier against any claim made against the Authority and/or a Successor Supplier at any time by any person in respect of any liability incurred by the Authority and/or a Successor Supplier arising from any deficiency or inaccuracy in information which the Contractor is required to provide under Condition 19.1 and ~~19.~~19.2 ~~19.5~~ 19.5. The Contractor shall not – (a) at any time during the Contract Period, move any persons in his employment into the undertaking or relevant part of an undertaking which provides the Services, who do not meet the standards of skill and experience, or who are in excess of the number, required for the purposes of the Contract; or (b) make any substantial change in the terms and conditions of employment of any Staff which is inconsistent with the Contractor's established employment and remuneration policies. ~~19.6~~ 19.6. Where, in the opinion of the Authority's Representative, any change or proposed change in the Staff in the undertaking or relevant part of an undertaking, or any change in the terms and conditions of employment of such Staff, would be in breach of Condition 19.5, the Authority shall have the right to make representations to the Contractor against the change or proposed change, and – (a) where, in the opinion of the Authority's Representative, the Contractor has acted in breach of Condition 19.5, the Authority shall have the right to give notice to the Contractor requiring him to remedy the breach within 30 days; and (b) if the Contractor has not remedied the breach to the satisfaction of the Authority's Representative by the end of the period of 30 days, the Authority shall have the right to terminate the Contract by reason of the Default of the Contractor, in accordance with Condition 42.; ~~19.7~~ 19.7. The Contractor shall allow access to the Site, in the presence of the Authority's Representative, to any person representing any service provider whom the Authority has selected to tender for the future provision of the Services. ~~19.8~~ 19.8. For the purpose of access to the Site in accordance with Condition 19.7, where the Site is on the Contractor's premises, the Authority shall give the Contractor 7 days' notice of a proposed visit together with a list showing the names of all persons who will be attending those premises. ~~19.9~~ 19.9. All persons who attend the Contractor's premises for the purposes of Condition 19.7 shall comply with the Contractor's security procedures, subject to such compliance not being in conflict with the objective of the visit. ~~19.10~~ 19.10. The Contractor shall co-operate fully with the Authority during the handover arising from the completion or earlier termination of the Contract. This co-~~operation, during the Setting up Operations period of the new contractor,~~ operation shall extend to allowing full access to, and providing copies of, all documents, reports, summaries and any other information necessary in order to achieve an effective transition without disruption to routine operational requirements. ~~19.11~~ 19.11. Within 10 working days of being so requested by the Authority's Representative, the Contractor shall transfer to the Authority, or any Person designated by the Authority, free of charge, all computerised filing, recording, documentation, planning and drawing held on software and utilised in the provision of the Services. The transfer shall be made in a fully indexed and catalogued disk format, to operate on a proprietary software package identical to that used by the Authority. ~~19.12~~ 19.12. During the period following the earlier of: (a) the provision of notice of termination to the Contractor; or (b) the public announcement of a re-tendering of the Services, the Contractor shall not without the prior written agreement of the Authority’s Representative vary the terms and conditions of employment or engagement of any Staff, employ or engage any person who would become a Termination Transferring Employee, change the role or responsibilities of any person so that he/she becomes involved in the provision of the Services, terminate (or give notice to terminate) the employment or engagement of any of the Staff; nor reduce or vary the involvement of any Staff in the provision of the Services. ~~19.13~~ 19.13. No later than one (1) month prior to the Termination Transfer Date, the Contractor shall compile a draft list for approval by the Authority of the Staff whom it considers will transfer to the Authority or a Successor Supplier as a result of ~~the TUPE Regulations~~local ARD legislation. The draft list shall be finalised by the Parties prior to the Termination Transfer Date. ~~19.14~~ 19.14. At the Termination Transfer Date, the Authority and the Contractor accept that in the event that the Services or substantially similar services are to be provided by the Authority and/or a Successor Supplier then this may constitute a transfer to which ~~the TUPE Regulations apply~~local ARD legislation applies. In the event that Authority’s Representative determines that ~~the TUPE Regulations apply~~ local ARD legislation applies in relation to the Termination Transfer and/or the final list of Termination Transfer Employees, the Termination Transfer Employees shall transfer to the Authority and/or the Successor Supplier on the Termination Transfer Date. ~~19.15~~ 19.15. The Authority will, or shall procure that the Successor Supplier will, in good time before the Termination Transfer Date provide to the Contractor all such information as is necessary for the Contractor or its ~~sub-~~ sub-contractors and the Authority or Successor Supplier to discharge their duties under ~~Regulation 13 of the TUPE Regulations~~local ARD legislation applies. ~~19.16~~ 19.16. The Contractor shall indemnify the Authority and the Successor Supplier from and against any cost (including reasonable legal costs), claim, liability, demand, expense or other legal recourse arising out of or in connection with: (a) any claim by any Termination Transfer Employee in respect of any fact or matter concerning or arising from that Termination Transfer Employee’s employment, or its termination, before the Termination Transfer Date, including (but not limited to) any claims of unfair dismissal, wrongful dismissal, unlawful deduction from wages, breach of contract, discrimination on the grounds of sex, race, disability, religion or belief, age and sexual orientation or any claim for a redundancy payment; (b) any proceedings, claim or demand by the H M Revenue & Customs or other statutory authority in respect of any financial obligations including, but not limited to, PAYE and primary and secondary national insurance contributions in relation to the Termination Transfer Employees, to the extent that the proceedings, claim or demand by the Inland Revenue or other statutory authority relates to financial obligations arising before the Termination Transfer Date; (c) any claim by any Termination Transfer Employee or any appropriate representative of any Termination Transfer Employee relating to any failure by the Contractor or any sub-contractor to comply with ~~the obligations of Regulation 13 of the TUPE Regulations~~local ARD legislation; and (d) any claim by any person (not being a Termination Transfer Employee) or his representative in respect of the termination of such person’s employment or engagement by the Contractor or its sub-contractor occurring before the Termination Transfer Date.; ~~19.17~~ 19.17. If any contract of employment or engagement of any person, other than a Termination Transfer Employee, is, as a result of the commencement of the provision of the Services by the Authority or Successor Supplier deemed or alleged to have been effected between the Authority or Successor Supplier and such person, as a result of the ~~TUPE Regulations~~local ARD legislation, then: (a) the Authority or Successor Supplier may, within 1 month of becoming aware of the application of the ~~TUPE Regulations~~ local ARD legislation to any such contract, terminate that contract; and (b) if any such contract is terminated the Contractor will indemnify the Authority and/or Successor Supplier against~~: (i)~~ : i all salary and benefits due to that person in respect of their employment between the Termination Transfer Date and the date of termination of employment; ~~and (ii)~~ and ii all liabilities, damages, costs (including reasonable legal costs), claims, awards and expenses arising in relation to such person out of the termination of such person’s employment. The Contractor procures that its sub-contractors shall indemnify the Authority and any Successor Supplier and their sub-contractors (as applicable) to the same extent as the Contractor is providing indemnities under this Condition 19. To the extent that non-employee personnel do not transfer to the Authority or a Successor Supplier and their sub-contractors (as applicable) by virtue of the above provisions, the Contractor shall use all reasonable ~~endeavours~~ endeavors to ensure that those non-employee personnel, which the Authority or a Successor Provider (or their sub-contractors as applicable) express an intention to retain, transfer accordingly on the Termination Transfer Date. The Contractor shall not (and shall procure that its sub-contractors shall not) take any steps or make any undertakings to such non-employee personnel which ~~has~~ have the effect or aims to have the effect of discouraging or preventing those personnel from working for the Authority or a Successor Supplier.

Appears in 1 contract

Samples: Cleaning Services Contract

RE-TENDERING AND HANDOVER. 19.1 Within 21 days of being so requested by the Authority's Representative the Contractor shall provide: (a) and thereafter keep updated and accessible to the Authority, in a fully indexed and catalogued format, all the information reasonably necessary to enable the Authority to issue tender documents for the future provision of the Services and for a third party to prepare an informed, non-qualified offer for those Services and not be disadvantaged in any procurement process compared to the Contractor (if the Contractor is invited to participate). This information shall include, but not be limited to, details of Staff as referred to in Condition 19.2, a description of the Services and the methods used by the Contractor to provide the Services, details as to key terms of any third party contracts and licences, copies of third party contracts and licences which are to be transferred to the Authority or a Successor Supplier and details of ongoing and threatened disputes in relation to the provision of the Services. This information shall be updated on a continuing basis. (b) a draft exit plan to be agreed with the Authority that shall set out each Parties obligations in detail in order to ensure a smooth and efficient transfer of the Services to the Authority for a Successor Supplier. The Parties shall review and update the exit plan annually and as soon as reasonably practicable in the event of a material change in any aspect of the Services which could reasonably be expected to impact upon the exit plan in order to ensure that the exit plan remains relevant. 19.2 Where, in the opinion of the Authority's Representative, the TUPE Regulations are likely to apply on the termination or expiration of the Contract, the information to be provided by the Contractor under Condition 19.1 shall include, as applicable, accurate information relating to the Staff who would be transferred under the same terms of employment under the TUPE Regulations, including in particular:- a) the number of Staff who would be transferred, but with no obligation on the Contractor to specify their names; b) in respect of each of those members of Staff their age, job title, sex, salary, benefits entitlement, length of service, contractual notice period, hours of work, overtime hours and rates, any other factors affecting redundancy entitlement and any outstanding claims arising from their employment; c) the general terms and conditions of employment applicable to those members of Staff, including probationary periods, retirement age, periods of notice, current pay agreements, pension arrangements, working hours, entitlement to annual leave, sick leave, maternity and special leave, terms of mobility, any loan or leasing schemes, any relevant collective agreements, facility time arrangements and additional employment benefits; d) all disciplinary, performance and grievance action taken in relation to or by each individual member of Staff within the previous two years; e) information of any court or tribunal case, claim or action brought by each member of Staff within the previous two years or that the Contractor has reasonable grounds to believe a member of Staff may bring against the Contractor; f) all long term absences; and g) details of any arrangements or collective agreements with trade unions or organisation of body of employees including elected representatives.NOT USED 19.3 The Authority shall take all necessary precautions to ensure that the information referred to in Condition 19.2 is given only to service providers who have qualified to tender for the future provision of the Services. The Authority shall require that such service providers shall treat that information in confidence; that they shall not communicate it except to such persons within their organisation and to such extent as may be necessary for the purpose of preparing a response to an invitation to tender issued by the Authority; and that they shall not use it for any other purpose.NOT USED 19.4 The Contractor shall indemnify the Authority and a Successor Supplier against any claim made against the Authority and/or a Successor Supplier at any time by any person in respect of any liability incurred by the Authority and/or a Successor Supplier arising from any deficiency or inaccuracy in information which the Contractor is required to provide under Condition 19.1 and ~~19.~~ 19.2. 19.5 The Contractor shall not – a) at any time during the Contract Period, move any persons in his employment into the undertaking or relevant part of an undertaking which provides the Services, who do not meet the standards of skill and experience, or who are in excess of the number, required for the purposes of the Contract; or b) make any substantial change in the terms and conditions of employment of any Staff which is inconsistent with the Contractor's established employment and remuneration policies. NOT USED 19.6 Where, in the opinion of the Authority's Representative, any change or proposed change in the Staff in the undertaking or relevant part of an undertaking, or any change in the terms and conditions of employment of such Staff, would be in breach of Condition 19.5, the Authority shall have the right to make representations to the Contractor against the change or proposed change, and – a) where, in the opinion of the Authority's Representative, the Contractor has acted in breach of Condition 19.5, the Authority shall have the right to give notice to the Contractor requiring him to remedy the breach within 30 days; and b) if the Contractor has not remedied the breach to the satisfaction of the Authority's Representative by the end of the period of 30 days, the Authority shall have the right to terminate the Contract by reason of the Default of the Contractor, in accordance with Condition 42. 19.7 The Contractor shall allow access to the Site, in the presence of the Authority's Representative, to any person representing any service provider whom the Authority has selected to tender for the future provision of the Services. 19.8 For the purpose of access to the Site in accordance with Condition 19.7, where the Site is on the Contractor's premises, the Authority shall give the Contractor 7 days' notice of a proposed visit together with a list showing the names of all persons who will be attending those premises. 19.9 All persons who attend the Contractor's premises for the purposes of Condition 19.7 shall comply with the Contractor's security procedures, subject to such compliance not being in conflict with the objective of the visit. 19.10 The Contractor shall co-operate fully with the Authority during the handover arising from the completion or earlier termination of the Contract. This co-operation, during the Setting up Operations period of the new contractor, shall extend to allowing full access to, and providing copies of, all documents, reports, summaries and any other information necessary in order to achieve an effective transition without disruption to routine operational requirements. 19.11 Within 10 working days of being so requested by the Authority's Representative, the Contractor shall transfer to the Authority, or any Person designated by the Authority, free of charge, all computerised filing, recording, documentation, planning and drawing held on software and utilised in the provision of the Services. The transfer shall be made in a fully indexed and catalogued disk format, to operate on a proprietary software package identical to that used by the Authority. 19.12 During the period following the earlier of: (a) the provision of notice of termination to the Contractor; or (b) the public announcement of a re-tendering of the Services, the Contractor shall not without the prior written agreement of the Authority’s Representative vary the terms and conditions of employment or engagement of any Staff, employ or engage any person who would become a Termination Transferring Employee, change the role or responsibilities of any person so that he/she becomes involved in the provision of the Services, terminate (or give notice to terminate) the employment or engagement of any of the Staff; nor reduce or vary the involvement of any Staff in the provision of the Services. 19.13 No later than one (1) month prior to the Termination Transfer Date, the Contractor shall compile a draft list for approval by the Authority of the Staff whom it considers will transfer to the Authority or a Successor Supplier as a result of the TUPE Regulations. The draft list shall be finalised by the Parties prior to the Termination Transfer Date. 19.14 At the Termination Transfer Date, the Authority and the Contractor accept that in the event that the Services or substantially similar services are to be provided by the Authority and/or a Successor Supplier then this may constitute a transfer to which the TUPE Regulations apply. In the event that Authority’s Representative determines that the TUPE Regulations apply in relation to the Termination Transfer and/or the final list of Termination Transfer Employees, the Termination Transfer Employees shall transfer to the Authority and/or the Successor Supplier on the Termination Transfer Date. 19.15 The Authority will, or shall procure that the Successor Supplier will, in good time before the Termination Transfer Date provide to the Contractor all such information as is necessary for the Contractor or its sub- contractors and the Authority or Successor Supplier to discharge their duties under Regulation 13 of the TUPE Regulations. 19.16 The Contractor shall indemnify the Authority and the Successor Supplier from and against any cost (including reasonable legal costs), claim, liability, demand, expense or other legal recourse arising out of or in connection with: (a) any claim by any Termination Transfer Employee in respect of any fact or matter concerning or arising from that Termination Transfer Employee’s employment, or its termination, before the Termination Transfer Date, including (but not limited to) any claims of unfair dismissal, wrongful dismissal, unlawful deduction from wages, breach of contract, discrimination on the grounds of sex, race, disability, religion or belief, age and sexual orientation or any claim for a redundancy payment; (b) any proceedings, claim or demand by the H M Revenue & Customs or other statutory authority in respect of any financial obligations including, but not limited to, PAYE and primary and secondary national insurance contributions in relation to the Termination Transfer Employees, to the extent that the proceedings, claim or demand by the Inland Revenue or other statutory authority relates to financial obligations arising before the Termination Transfer Date; (c) any claim by any Termination Transfer Employee or any appropriate representative of any Termination Transfer Employee relating to any failure by the Contractor or any sub-contractor to comply with the obligations of Regulation 13 of the TUPE Regulations; and (d) any claim by any person (not being a Termination Transfer Employee) or his representative in respect of the termination of such person’s employment or engagement by the Contractor or its sub-contractor occurring before the Termination Transfer Date. 19.17 If any contract of employment or engagement of any person, other than a Termination Transfer Employee, is, as a result of the commencement of the provision of the Services by the Authority or Successor Supplier deemed or alleged to have been effected between the Authority or Successor Supplier and such person, as a result of the TUPE Regulations, then: (a) the Authority or Successor Supplier may, within 1 month of becoming aware of the application of the TUPE Regulations to any such contract, terminate that contract; and (b) if any such contract is terminated the Contractor will indemnify the Authority and/or Successor Supplier against: (i) all salary and benefits due to that person in respect of their employment between the Termination Transfer Date and the date of termination of employment; and (ii) all liabilities, damages, costs (including reasonable legal costs), claims, awards and expenses arising in relation to such person out of the termination of such person’s employment. The Contractor procures that its sub-contractors shall indemnify the Authority and any Successor Supplier and their sub-contractors (as applicable) to the same extent as the Contractor is providing indemnities under this Condition 19. To the extent that non-employee personnel do not transfer to the Authority or a Successor Supplier and their sub-contractors (as applicable) by virtue of the above provisions, the Contractor shall use all reasonable endeavours to ensure that those non-employee personnel, which the Authority or a Successor Provider (or their sub-contractors as applicable) express an intention to retain, transfer accordingly on the Termination Transfer Date. The Contractor shall not (and shall procure that its sub-contractors shall not) take any steps or make any undertakings to such non-employee personnel which has the effect or aims to have the effect of discouraging or preventing those personnel from working for the Authority or a Successor Supplier.NOT USED

Appears in 1 contract

Samples: Framework Agreement

RE-TENDERING AND HANDOVER. 19.1 Within 21 days of being so requested by the Authority's Representative the Contractor shall provide: (a) and thereafter keep updated and accessible to the Authority, in a fully indexed and catalogued format, all the information reasonably necessary to enable the Authority to issue tender documents for the future provision of the Services and for a third party to prepare an informed, non-qualified offer for those Services and not be disadvantaged in any procurement process compared to the Contractor (if the Contractor is invited to participate). This information shall include, but not be limited to, details of Staff as referred to in Condition ~~19.2~~19.2 (Re-tendering and handover), a description of the Services and the methods used by the Contractor to provide the Services, details as to key terms of any third party contracts and licences, copies of third party contracts and licences which are to be transferred to the Authority or a Successor Supplier and details of ongoing and threatened disputes in relation to the provision of the Services. This information shall be updated on a continuing basis. (b) a draft exit plan to be agreed with the Authority that shall set out each Parties obligations in detail in order to ensure a smooth and efficient transfer of the Services to the Authority for a Successor Supplier. The Parties shall review and update the exit plan annually and as soon as reasonably practicable in the event of a material change in any aspect of the Services which could reasonably be expected to impact upon the exit plan in order to ensure that the exit plan remains relevant. 19.2 Where, in the opinion of the Authority's Representative, the TUPE Regulations are likely to apply on the termination or expiration of the Contract, the information to be provided by the Contractor under Condition 19.1 (Re-tendering and handover) shall include, as applicable, accurate information relating to the Staff who would be transferred under the same terms of employment under the TUPE Regulations, including in particular:- a) the number of Staff who would be transferred, but with no obligation on the Contractor to specify their names; b) in respect of each of those members of Staff their age, job title, sex, salary, benefits entitlement, length of service, contractual notice period, hours of work, overtime hours and rates, any other factors affecting redundancy entitlement and any outstanding claims arising from their employment; c) the general terms and conditions of employment applicable to those members of Staff, including probationary periods, retirement age, periods of notice, current pay agreements, pension arrangements, working hours, entitlement to annual leave, sick leave, maternity and special leave, terms of mobility, any loan or leasing schemes, any relevant collective agreements, facility time arrangements and additional employment benefits; d) all disciplinary, performance and grievance action taken in relation to or by each individual member of Staff within the previous two years; e) information of any court or tribunal case, claim or action brought by each member of Staff within the previous two years or that the Contractor has reasonable grounds to believe a member of Staff may bring against the Contractor; f) all long term absences; and g) details of any arrangements or collective agreements with trade unions or organisation of body of employees including elected representatives. 19.3 The Authority shall take all necessary precautions to ensure that the information referred to in Condition 19.2 (Re-tendering and handover) is given only to service providers who have qualified to tender for the future provision of the Services. The Authority shall require that such service providers shall treat that information in confidence; that they shall not communicate it except to such persons within their organisation and to such extent as may be necessary for the purpose of preparing a response to an invitation to tender issued by the Authority; and that they shall not use it for any other purpose. 19.4 The Contractor shall indemnify the Authority and a Successor Supplier against any claim made against the Authority and/or a Successor Supplier at any time by any person in respect of any liability incurred by the Authority and/or a Successor Supplier arising from any deficiency or inaccuracy in information which the Contractor is required to provide under Condition 19.1 (Re-tendering and 19handover) and 19.2 (Re-tendering and handover). 19.5 The Contractor shall not – a) at any time during the Contract Period, move any persons in his employment into the undertaking or relevant part of an undertaking which provides the Services, who do not meet the standards of skill and experience, or who are in excess of the number, required for the purposes of the Contract; or b) make any substantial change in the terms and conditions of employment of any Staff which is inconsistent with the Contractor's established employment and remuneration policies. 19.6 Where, in the opinion of the Authority's Representative, any change or proposed change in the Staff in the undertaking or relevant part of an undertaking, or any change in the terms and conditions of employment of such Staff, would be in breach of Condition ~~19.5~~19.5 (Re-tendering and handover), the Authority shall have the right to make representations to the Contractor against the change or proposed change, and – a) where, in the opinion of the Authority's Representative, the Contractor has acted in breach of Condition 19.5, the Authority shall have the right to give notice to the Contractor requiring him to remedy the breach within 30 days; and b) if the Contractor has not remedied the breach to the satisfaction of the Authority's Representative by the end of the period of 30 days, the Authority shall have the right to terminate the Contract by reason of the Default of the Contractor, in accordance with Condition 42. 19.7 The Contractor shall allow access to the Site, in the presence of the Authority's Representative, to any person representing any service provider whom the Authority has selected to tender for the future provision of the Services. 19.8 For the purpose of access to the Site in accordance with Condition 19.7, where the Site is on the Contractor's premises, the Authority shall give the Contractor 7 days' notice of a proposed visit together with a list showing the names of all persons who will be attending those premises. 19.9 All persons who attend the Contractor's premises for the purposes of Condition 19.7 shall comply with the Contractor's security procedures, subject to such compliance not being in conflict with the objective of the visit. 19.10 The Contractor shall co-operate fully with the Authority during the handover arising from the completion or earlier termination of the Contract. This co-operation, during the Setting up Operations period of the new contractor, shall extend to allowing full access to, and providing copies of, all documents, reports, summaries and any other information necessary in order to achieve an effective transition without disruption to routine operational requirements. 19.11 Within 10 working days of being so requested by the Authority's Representative, the Contractor shall transfer to the Authority, or any Person designated by the Authority, free of charge, all computerised filing, recording, documentation, planning and drawing held on software and utilised in the provision of the Services. The transfer shall be made in a fully indexed and catalogued disk format, to operate on a proprietary software package identical to that used by the Authority. 19.12 During the period following the earlier of: (a) the provision of notice of termination to the Contractor; or (b) the public announcement of a re-tendering of the Services, the Contractor shall not without the prior written agreement of the Authority’s Representative vary the terms and conditions of employment or engagement of any Staff, employ or engage any person who would become a Termination Transferring Employee, change the role or responsibilities of any person so that he/she becomes involved in the provision of the Services, terminate (or give notice to terminate) the employment or engagement of any of the Staff; nor reduce or vary the involvement of any Staff in the provision of the Services. 19.13 No later than one (1) month prior to the Termination Transfer Date, the Contractor shall compile a draft list for approval by the Authority of the Staff whom it considers will transfer to the Authority or a Successor Supplier as a result of the TUPE Regulations. The draft list shall be finalised by the Parties prior to the Termination Transfer Date. 19.14 At the Termination Transfer Date, the Authority and the Contractor accept that in the event that the Services or substantially similar services are to be provided by the Authority and/or a Successor Supplier then this may constitute a transfer to which the TUPE Regulations apply. In the event that Authority’s Representative determines that the TUPE Regulations apply in relation to the Termination Transfer and/or the final list of Termination Transfer Employees, the Termination Transfer Employees shall transfer to the Authority and/or the Successor Supplier on the Termination Transfer Date. 19.15 The Authority will, or shall procure that the Successor Supplier will, in good time before the Termination Transfer Date provide to the Contractor all such information as is necessary for the Contractor or its sub- contractors and the Authority or Successor Supplier to discharge their duties under Regulation 13 of the TUPE Regulations. 19.16 The Contractor shall indemnify the Authority and the Successor Supplier from and against any cost (including reasonable legal costs), claim, liability, demand, expense or other legal recourse arising out of or in connection with: (a) any claim by any Termination Transfer Employee in respect of any fact or matter concerning or arising from that Termination Transfer Employee’s employment, or its termination, before the Termination Transfer Date, including (but not limited to) any claims of unfair dismissal, wrongful dismissal, unlawful deduction from wages, breach of contract, discrimination on the grounds of sex, race, disability, religion or belief, age and sexual orientation or any claim for a redundancy payment; (b) any proceedings, claim or demand by the H M Revenue & Customs or other statutory authority in respect of any financial obligations including, but not limited to, PAYE and primary and secondary national insurance contributions in relation to the Termination Transfer Employees, to the extent that the proceedings, claim or demand by the Inland Revenue or other statutory authority relates to financial obligations arising before the Termination Transfer Date; (c) any claim by any Termination Transfer Employee or any appropriate representative of any Termination Transfer Employee relating to any failure by the Contractor or any sub-contractor to comply with the obligations of Regulation 13 of the TUPE Regulations; and (d) any claim by any person (not being a Termination Transfer Employee) or his representative in respect of the termination of such person’s employment or engagement by the Contractor or its sub-contractor occurring before the Termination Transfer Date. 19.17 If any contract of employment or engagement of any person, other than a Termination Transfer Employee, is, as a result of the commencement of the provision of the Services by the Authority or Successor Supplier deemed or alleged to have been effected between the Authority or Successor Supplier and such person, as a result of the TUPE Regulations, then: (a) the Authority or Successor Supplier may, within 1 month of becoming aware of the application of the TUPE Regulations to any such contract, terminate that contract; and (b) if any such contract is terminated the Contractor will indemnify the Authority and/or Successor Supplier against: (i) all salary and benefits due to that person in respect of their employment between the Termination Transfer Date and the date of termination of employment; and (ii) all liabilities, damages, costs (including reasonable legal costs), claims, awards and expenses arising in relation to such person out of the termination of such person’s employment. The Contractor procures that its sub-contractors shall indemnify the Authority and any Successor Supplier and their sub-contractors (as applicable) to the same extent as the Contractor is providing indemnities under this Condition 19. To the extent that non-employee personnel do not transfer to the Authority or a Successor Supplier and their sub-contractors (as applicable) by virtue of the above provisions, the Contractor shall use all reasonable endeavours to ensure that those non-employee personnel, which the Authority or a Successor Provider (or their sub-contractors as applicable) express an intention to retain, transfer accordingly on the Termination Transfer Date. The Contractor shall not (and shall procure that its sub-contractors shall not) take any steps or make any undertakings to such non-employee personnel which has the effect or aims to have the effect of discouraging or preventing those personnel from working for the Authority or a Successor Supplier.Condition

Appears in 1 contract

Samples: Contract for the Provision of Services

RE-TENDERING AND HANDOVER. ~~19.1~~ 28.1 Within 21 days of being so requested by the Authority~~'s Representative~~ , the Contractor shall ~~provide: (a)~~ provide and thereafter keep ~~updated and accessible to the Authority~~updated, in a fully indexed and catalogued format, all the information ~~reasonably~~ available to it and necessary to enable the Authority to issue ~~tender documents~~ invitations to offer for the future provision of the Services and for a third party to prepare an informed, non-qualified offer for those Services and not be disadvantaged in any procurement process compared to the Contractor (if the Contractor is invited to participate). This information shall include, but not be limited to, details of Staff as referred to in Condition 19.2, a description of the Services and the methods used by the Contractor to provide the Services, details as to key terms of any third party contracts and licences, copies of third party contracts and licences which are to be transferred to the Authority or a Successor Supplier and details of ongoing and threatened disputes in relation to the provision of the Services. This information shall be updated on a continuing basis. (b) a draft exit plan to be agreed with the Authority that shall set out each Parties obligations in detail in order to ensure a smooth and efficient transfer of the Services to the Authority for a Successor Supplier. The Parties shall review and update the exit plan annually and as soon as reasonably practicable in the event of a material change in any aspect of the Services which could reasonably be expected to impact upon the exit plan in order to ensure that the exit plan remains relevant. 19.2 Where, in the opinion of the Authority's Representative, the TUPE Regulations are likely to apply on the termination or expiration of the Contract, the information to be provided by the Contractor under Condition 19.1 shall include, as applicable, accurate information relating to the Staff who would be transferred under the same terms of employment under the TUPE Regulations, including in particular:- a) the number of Staff who would be transferred, but with no obligation on the Contractor to specify their names; b) in respect of each of those members of Staff their age, job title, sex, salary, benefits entitlement, length of service, contractual notice period, hours of work, overtime hours and rates, any other factors affecting redundancy entitlement and any outstanding claims arising from their employment; c) the general terms and conditions of employment applicable to those members of Staff, including probationary periods, retirement age, periods of notice, current pay agreements, pension arrangements, working hours, entitlement to annual leave, sick leave, maternity and special leave, terms of mobility, any loan or leasing schemes, any relevant collective agreements, facility time arrangements and additional employment benefits; d) all disciplinary, performance and grievance action taken in relation to or by each individual member of Staff within the previous two years; e) information of any court or tribunal case, claim or action brought by each member of Staff within the previous two years or that the Contractor has reasonable grounds to believe a member of Staff may bring against the Contractor; f) all long term absences; and g) details of any arrangements or collective agreements with trade unions or organisation of body of employees including elected representatives. 19.3 28.2 The Authority shall take all necessary precautions to ensure that the information referred to in ~~Condition 19.2~~ Clause 28.1 is given only to ~~service providers~~ Replacement Contractors who have qualified to ~~tender~~ offer for the future provision of ~~the Services~~services. The Authority shall require that such ~~service providers~~ Replacement Contractors shall treat that information in confidence; , that they shall not communicate it except to such persons within their organisation and to such extent as may be necessary for the purpose of preparing a response to an invitation to ~~tender~~ offer issued by the ~~Authority;~~ Authority and that they shall not use it for any other purpose. ~~19.4 The~~ 28.3 Subject to Clause 19, the Contractor shall indemnify the Authority ~~and a Successor Supplier~~ against any ~~claim made against~~ Loss of the Authority ~~and/or a Successor Supplier~~ at any time ~~by any person in respect of any liability incurred by the Authority and/or a Successor Supplier~~ arising from any deficiency or inaccuracy in ~~information~~ information, which the Contractor is required to provide under ~~Condition 19.1 and 19~~Clause 28.2. 19.5 The Contractor shall not – a) at any time during the Contract Period, move any persons in his employment into the undertaking or relevant part of an undertaking which provides the Services, who do not meet the standards of skill and experience, or who are in excess of the number, required for the purposes of the Contract; or b) make any substantial change in the terms and conditions of employment of any Staff which is inconsistent with the Contractor's established employment and remuneration policies. 19.6 Where, in the opinion of the Authority's Representative, any change or proposed change in the Staff in the undertaking or relevant part of an undertaking, or any change in the terms and conditions of employment of such Staff, would be in breach of Condition 19.5, the Authority shall have the right to make representations to the Contractor against the change or proposed change, and – a) where, in the opinion of the Authority's Representative, the Contractor has acted in breach of Condition 19.5, the Authority shall have the right to give notice to the Contractor requiring him to remedy the breach within 30 days; and b) if the Contractor has not remedied the breach to the satisfaction of the Authority's Representative by the end of the period of 30 days, the Authority shall have the right to terminate the Contract by reason of the Default of the Contractor, in accordance with Condition 42. 19.7 28.4 The Contractor shall allow access to the ~~Site~~Sites, in the presence of a representative of the Authority~~'s Representative~~, to any person representing any ~~service provider~~ Replacement Contractor whom the Authority has selected to ~~tender~~ offer for the future provision of ~~the Services. 19.8~~ services. For the purpose of ~~access to the Site in accordance with Condition 19.7~~such access, where the ~~Site~~ site is on the ~~Contractor's~~ Contractor‟s premises, the Authority shall give the Contractor ~~7 days'~~ seven days‟ notice of a proposed visit together with a list showing the names of all persons who will be attending those premises. ~~19.9~~ 28.5 All persons who attend the ~~Contractor's~~ Contractor‟s premises for the purposes of ~~Condition 19.7~~ Clause 28.4 shall comply with the ~~Contractor's~~ Contractor‟s security procedures, subject to such compliance not being in conflict with the objective of the visit. ~~19.10~~ 28.6 The Contractor shall co-operate fully with the Authority during the handover arising from the completion or earlier termination of the Contract. This co-operation, during the ~~Setting~~ setting up ~~Operations~~ operations period of the ~~new contractor~~Replacement Contractor, shall extend to allowing full access to, and providing copies ~~of,~~ of all documents, reports, summaries and ~~any~~ other information necessary in order to achieve an effective transition without disruption to the routine operational requirements. The Authority shall require that such Replacement Contractors shall keep and treat as confidential any Contractor Confidential Information in accordance with its obligations under Clause 34. ~~19.11~~ 28.7 Within 10 ten working days of being so requested by the Authority~~'s Representative~~, the Contractor shall transfer to the Authority, or any ~~Person~~ person designated by the Authority, free of charge, all computerised filing, ~~recording~~recordings, documentation, planning and ~~drawing~~ drawings held on software and utilised in the provision of the ~~Services~~services. The transfer shall be made in a fully indexed and catalogued disk ~~format,~~ format to operate on a proprietary software package identical to that used by the Authority. 19.12 During the period following the earlier of: (a) the provision of notice of termination to the Contractor; or (b) the public announcement of a re-tendering of the Services, the Contractor shall not without the prior written agreement of the Authority’s Representative vary the terms and conditions of employment or engagement of any Staff, employ or engage any person who would become a Termination Transferring Employee, change the role or responsibilities of any person so that he/she becomes involved in the provision of the Services, terminate (or give notice to terminate) the employment or engagement of any of the Staff; nor reduce or vary the involvement of any Staff in the provision of the Services. 19.13 No later than one (1) month prior to the Termination Transfer Date, the Contractor shall compile a draft list for approval by the Authority of the Staff whom it considers will transfer to the Authority or a Successor Supplier as a result of the TUPE Regulations. The ~~draft list~~ Authority shall ~~be finalised by the Parties prior to the Termination Transfer Date. 19.14 At the Termination Transfer Date, the Authority~~ keep and ~~the~~ treat as confidential any Contractor ~~accept that~~ Confidential Information contained therein in the event that the Services or substantially similar services are to be provided by the Authority and/or a Successor Supplier then this may constitute a transfer to which the TUPE Regulations apply. In the event that Authority’s Representative determines that the TUPE Regulations apply in relation to the Termination Transfer and/or the final list of Termination Transfer Employees, the Termination Transfer Employees shall transfer to the Authority and/or the Successor Supplier on the Termination Transfer Date. 19.15 The Authority will, or shall procure that the Successor Supplier will, in good time before the Termination Transfer Date provide to the Contractor all such information as is necessary for the Contractor or accordance with its ~~sub- contractors and the Authority or Successor Supplier to discharge their~~ duties under ~~Regulation 13 of the TUPE Regulations~~Clause 34. 28.8 This clause 28 is subject to clause 30.7. 19.16 The Contractor shall indemnify the Authority and the Successor Supplier from and against any cost (including reasonable legal costs), claim, liability, demand, expense or other legal recourse arising out of or in connection with: (a) any claim by any Termination Transfer Employee in respect of any fact or matter concerning or arising from that Termination Transfer Employee’s employment, or its termination, before the Termination Transfer Date, including (but not limited to) any claims of unfair dismissal, wrongful dismissal, unlawful deduction from wages, breach of contract, discrimination on the grounds of sex, race, disability, religion or belief, age and sexual orientation or any claim for a redundancy payment; (b) any proceedings, claim or demand by the H M Revenue & Customs or other statutory authority in respect of any financial obligations including, but not limited to, PAYE and primary and secondary national insurance contributions in relation to the Termination Transfer Employees, to the extent that the proceedings, claim or demand by the Inland Revenue or other statutory authority relates to financial obligations arising before the Termination Transfer Date; (c) any claim by any Termination Transfer Employee or any appropriate representative of any Termination Transfer Employee relating to any failure by the Contractor or any sub-contractor to comply with the obligations of Regulation 13 of the TUPE Regulations; and (d) any claim by any person (not being a Termination Transfer Employee) or his representative in respect of the termination of such person’s employment or engagement by the Contractor or its sub-contractor occurring before the Termination Transfer Date. 19.17 If any contract of employment or engagement of any person, other than a Termination Transfer Employee, is, as a result of the commencement of the provision of the Services by the Authority or Successor Supplier deemed or alleged to have been effected between the Authority or Successor Supplier and such person, as a result of the TUPE Regulations, then: (a) the Authority or Successor Supplier may, within 1 month of becoming aware of the application of the TUPE Regulations to any such contract, terminate that contract; and (b) if any such contract is terminated the Contractor will indemnify the Authority and/or Successor Supplier against: (i) all salary and benefits due to that person in respect of their employment between the Termination Transfer Date and the date of termination of employment; and (ii) all liabilities, damages, costs (including reasonable legal costs), claims, awards and expenses arising in relation to such person out of the termination of such person’s employment. The Contractor procures that its sub-contractors shall indemnify the Authority and any Successor Supplier and their sub-contractors (as applicable) to the same extent as the Contractor is providing indemnities under this Condition 19. To the extent that non-employee personnel do not transfer to the Authority or a Successor Supplier and their sub-contractors (as applicable) by virtue of the above provisions, the Contractor shall use all reasonable endeavours to ensure that those non-employee personnel, which the Authority or a Successor Provider (or their sub-contractors as applicable) express an intention to retain, transfer accordingly on the Termination Transfer Date. The Contractor shall not (and shall procure that its sub-contractors shall not) take any steps or make any undertakings to such non-employee personnel which has the effect or aims to have the effect of discouraging or preventing those personnel from working for the Authority or a Successor Supplier.

Appears in 1 contract

Samples: Contract for the Provision of Educational Inputs to the NHS Graduate Management Training Scheme

RE-TENDERING AND HANDOVER. ~~19.1~~ 48.1. Within 21 days of being so requested by the Authority's Representative the Contractor shall provide: (a) and thereafter keep updated and accessible to the Authority, in a fully indexed and catalogued format, all the information reasonably necessary to enable the Authority to issue tender documents for the future provision of the Services and for a third party to prepare an informed, non-qualified offer for those Services and not be disadvantaged in any procurement process compared to the Contractor (if the Contractor is invited to participate). This information shall include, but not be limited to, details of Staff as referred to in Condition ~~19.2~~48.2, a description of the Services and the methods used by the Contractor to provide the Services, details as to key terms of any third party contracts and licences, copies of third party contracts and licences which are to be transferred to the Authority or a Successor Supplier and details of ongoing and threatened disputes in relation to the provision of the Services. This information shall be updated on a continuing basis. (b) a draft exit plan to be agreed with the Authority that shall set out each ~~Parties~~ Party‟s obligations in detail in order to ensure a smooth and efficient transfer of the Services to the Authority ~~for~~ of a Successor Supplier. The Parties shall review and update the exit plan annually and as soon as reasonably practicable in the event of a material change in any aspect of the Services which could reasonably be expected to impact upon the exit plan in order to ensure that the exit plan remains relevant. ~~19.2~~ 48.2. Where, in the opinion of the Authority's Representative, the TUPE Regulations are likely to apply on the termination or expiration of the Contract, the information to be provided by the Contractor under ~~Condition 19.1~~ Condition 48.1 shall include, as applicable, accurate information relating to the Staff who would be transferred under the same terms of employment under the TUPE Regulations, including in particular:- a) the number of Staff who would be transferred~~, but with no obligation on the Contractor to specify their names~~; b) in respect of each of those members of Staff their identity age, job title, sex, salary, benefits entitlement, length of service, contractual notice period, hours of work, overtime hours and rates, any other factors affecting redundancy entitlement and any outstanding claims arising from their employment; ca) the general terms and conditions of employment applicable to those members of Staff, including probationary periods, retirement age, periods of notice, current pay agreements, pension arrangements, working hours, entitlement to annual leave, sick leave, maternity and special leave, terms of mobility, any loan or leasing schemes, any relevant collective agreements, facility time arrangements and additional employment benefits; db) all disciplinary, performance and grievance action taken in relation to or by each individual member of Staff within the previous two years; ec) information of any court or tribunal case, claim or action brought by each member of Staff within the previous two years or that the Contractor has reasonable grounds to believe a member of Staff may bring against the Contractor;. fd) all long term absences; and ge) details of any arrangements or collective agreements with trade unions or organisation of body of employees including elected representatives. ~~19.3~~ 48.3. The Authority shall take all necessary precautions to ensure that the information referred to in Condition ~~19.2~~ 48.2 is given only to service providers who have qualified to tender for the future provision of the Services. The Authority shall require that such service providers shall treat that information in confidence; that they shall not communicate it except to such persons within their organisation and to such extent as may be necessary for the purpose of preparing a response to an invitation to tender issued by the Authority; and that they shall not use it for any other purpose. ~~19.4~~ 48.4. The Contractor shall indemnify the Authority and a Successor Supplier against any claim made against the Authority and/or a Successor Supplier at any time by any person in respect of any liability incurred by the Authority and/or a Successor Supplier arising from any deficiency or inaccuracy in information which the Contractor is required to provide under Condition ~~19.1~~ 48.1 and 1948.2. ~~19.5~~ 48.5. The Contractor shall not – a) at any time during the Contract Period, move any persons in his employment into the undertaking or relevant part of an undertaking which provides the Services, who do not meet the standards of skill and experience, or who are in excess of the number, required for the purposes of the Contract; or b) make any substantial change in the terms and conditions of employment of any Staff which is inconsistent with the Contractor's established employment and remuneration policies. ~~19.6~~ 48.6. Where, in the opinion of the Authority's Representative, any change or proposed change in the Staff in the undertaking or relevant part of an undertaking, or any change in the terms and conditions of employment of such Staff, would be in breach of Condition ~~19.5~~48.5, the Authority shall have the right to make representations to the Contractor against the change or proposed change, and – a) where, in the opinion of the Authority's Representative, the Contractor has acted in breach of Condition ~~19.5~~48.5, the Authority shall have the right to give notice to the Contractor requiring him to remedy the breach within 30 days; and b) if the Contractor has not remedied the breach to the satisfaction of the Authority's Representative by the end of the period of 30 days, the Authority shall have the right to terminate the Contract by reason of the ~~Default~~ default of the Contractor, in accordance with Condition 4228. ~~19.7~~ 48.7. The Contractor shall allow access to the Site, in the presence of the Authority's Representative, to any person representing any service provider whom the Authority has selected to tender for the future provision of the Services. ~~19.8~~ 48.8. For the purpose of access to the Site in accordance with Condition ~~19.7~~48.7, where the Site is on the Contractor's premises, the Authority shall give the Contractor 7 days' notice of a proposed visit together with a list showing the names of all persons who will be attending those premises. ~~19.9~~ 48.9. All persons who attend the Contractor's premises for the purposes of Condition ~~19.7~~ 48.7 shall comply with the Contractor's security procedures, subject to such compliance not being in conflict with the objective of the visit. ~~19.10~~ 48.10. The Contractor shall co-operate fully with the Authority during the handover arising from the completion or earlier termination of the Contract. This co-operation, during the Setting up Operations period of the new contractor, shall extend to allowing full access to, and providing copies of, all documents, reports, summaries and any other information necessary in order to achieve an effective transition without disruption to routine operational requirements. ~~19.11~~ 48.11. Within 10 working days of being so requested by the Authority's Representative, the Contractor shall transfer to the Authority, or any Person designated by the Authority, free of charge, all computerised filing, recording, documentation, planning and drawing held on software and utilised in the provision of the Services. The transfer shall be made in a fully indexed and catalogued disk format, to operate on a proprietary software package identical to that used by the Authority. ~~19.12~~ 48.12. During the period following the earlier of: (a) the provision of notice of termination to the Contractor; or (b) the public announcement of a re-tendering of the Services, , 48.13. the Contractor shall not without the prior written agreement of the ~~Authority’s~~ Authority‟s Representative vary the terms and conditions of employment or engagement of any Staff, employ or engage any person who would become a Termination Transferring Employee, change the role or responsibilities of any person so that he/she becomes involved in the provision of the Services, terminate (or give notice to terminate) the employment or engagement of any of the Staff; nor reduce or vary the involvement of any Staff in the provision of the Services. ~~19.13~~ 48.14. No later than one (1) month prior to the Termination Transfer Date, the Contractor shall compile a draft list for approval by the Authority of the Staff whom it considers will transfer to the Authority or a Successor Supplier as a result of the TUPE Regulations. The draft list shall be finalised by the Parties prior to the Termination Transfer Date. ~~19.14~~ 48.15. At the Termination Transfer Date, the Authority and the Contractor accept that in the event that the Services or substantially similar services are to be provided by the Authority and/or a Successor Supplier then this may constitute a transfer to which the TUPE Regulations apply. In the event that ~~Authority’s~~ Authority‟s Representative determines that the TUPE Regulations apply in relation to the Termination Transfer and/or the final list of Termination Transfer Employees, the Termination Transfer Employees shall transfer to the Authority and/or the Successor Supplier on the Termination Transfer Date. ~~19.15~~ 48.16. The Authority will, or shall procure that the Successor Supplier will, in good time before the Termination Transfer Date provide to the Contractor all such information as is necessary for the Contractor or any of its ~~sub-~~ Sub-contractors and the Authority or Successor Supplier to discharge their duties under Regulation 13 10 of the TUPE Regulations. ~~19.16~~ 48.17. The Contractor shall indemnify the Authority and the Successor Supplier from and against any cost (including reasonable legal costs), claim, liability, demand, expense or other legal recourse arising out of or in connection with: (a) any claim by any Termination Transfer Employee in respect of any fact or matter concerning or arising from that Termination Transfer ~~Employee’s~~ Employee‟s employment, or its termination, before the Termination Transfer Date, including (but not limited to) any claims of unfair dismissal, wrongful dismissal, unlawful deduction from wages, breach of contract, discrimination on the grounds of sex, race, disability, religion or belief, age and sexual orientation or any claim for a redundancy payment; (b) any proceedings, claim or demand by the ~~H M~~ HM Revenue & Customs or other statutory authority in respect of any financial obligations including, but not limited to, PAYE and primary and secondary national insurance contributions in relation to the Termination Transfer Employees, to the extent that the proceedings, claim or demand by the Inland Revenue or other statutory authority relates to financial obligations arising before the Termination Transfer Date; (c) any claim by any Termination Transfer Employee or any appropriate representative of any Termination Transfer Employee relating to any failure by the Contractor or any ~~sub~~of its Sub-~~contractor~~ contractors to comply with the obligations of Regulation 13 10 of the TUPE Regulations; ~~and (d)~~ and any claim by any person (not being a Termination Transfer Employee) or his representative in respect of the termination of such ~~person’s~~ person‟s employment or engagement by the Contractor or any of its ~~sub~~Sub-~~contractor~~ contractors occurring before the Termination Transfer Date. ~~19.17~~ 48.18. If any contract of employment or engagement of any person, other than a Termination Transfer Employee, is, as a result of the commencement of the provision of the Services by the Authority or Successor Supplier deemed or alleged to have been effected between the Authority or Successor Supplier and such person, as a result of the TUPE Regulations, then: (a) the Authority or Successor Supplier may, within 1 month of becoming aware of the application of the TUPE Regulations to any such contract, terminate that contract; and (b) if any such contract is terminated the Contractor will indemnify the Authority and/or Successor Supplier against: (i) all salary and benefits due to that person in respect of their employment between the Termination Transfer Date and the date of termination of employment; and (ii) all liabilities, damages, costs (including reasonable legal costs), claims, awards and expenses arising in relation to such person out of the termination of such ~~person’s~~ person‟s employment. The Contractor procures that its ~~sub~~Sub-contractors shall indemnify the Authority and any Successor Supplier and their ~~sub~~Sub-contractors (as applicable) to the same extent as the Contractor is providing indemnities under this Condition 1948. To the extent that non-employee personnel do not transfer to the Authority or a Successor Supplier and their ~~sub~~Sub-contractors (as applicable) by virtue of the above provisions, the Contractor shall use all reasonable endeavours to ensure that those ~~non-~~non- employee personnel, which the Authority or a Successor Provider (or their ~~sub-~~Sub- contractors as applicable) express an intention to retain, transfer accordingly on the Termination Transfer Date. The Contractor shall not (and shall procure that its ~~sub-~~Sub- contractors shall not) take any steps or make any undertakings to such non-employee personnel which has the effect or aims to have the effect of discouraging or preventing those personnel from working for the Authority or a Successor Supplier.

Appears in 1 contract

Samples: Contract for Provision of Security Guarding Services

Appears in 1 contract

Samples: Provision of a Demining Project Office Contractor

RE-TENDERING AND HANDOVER. ~~19.1~~ 48.1. Within 21 days of being so requested by the Authority's Representative the Contractor shall provide: (a) and thereafter keep updated and accessible to the Authority, in a fully indexed and catalogued format, all the information reasonably necessary to enable the Authority to issue tender documents for the future provision of the Services and for a third party to prepare an informed, non-qualified offer for those Services and not be disadvantaged in any procurement process compared to the Contractor (if the Contractor is invited to participate). This information shall include, but not be limited to, details of Staff as referred to in Condition ~~19.2~~48.2, a description of the Services and the methods used by the Contractor to provide the Services, details as to key terms of any third party contracts and licences, copies of third party contracts and licences which are to be transferred to the Authority or a Successor Supplier and details of ongoing and threatened disputes in relation to the provision of the Services. This information shall be updated on a continuing basis. (b) a draft exit plan to be agreed with the Authority that shall set out each ~~Parties~~ Party‟s obligations in detail in order to ensure a smooth and efficient transfer of the Services to the Authority ~~for~~ of a Successor Supplier. The Parties shall review and update the exit plan annually and as soon as reasonably practicable in the event of a material change in any aspect of the Services which could reasonably be expected to impact upon the exit plan in order to ensure that the exit plan remains relevant. ~~19.2~~ 48.2. Where, in the opinion of the Authority's Representative, the TUPE Regulations are likely to apply on the termination or expiration of the Contract, the information to be provided by the Contractor under ~~Condition 19.1~~ Condition 48.1 shall include, as applicable, accurate information relating to the Staff who would be transferred under the same terms of employment under the TUPE Regulations, including in particular:- a) the number of Staff who would be transferred~~, but with no obligation on the Contractor to specify their names~~; b) in respect of each of those members of Staff their identity age, job title, sex, salary, benefits entitlement, length of service, contractual notice period, hours of work, overtime hours and rates, any other factors affecting redundancy entitlement and any outstanding claims arising from their employment; ca) the general terms and conditions of employment applicable to those members of Staff, including probationary periods, retirement age, periods of notice, current pay agreements, pension arrangements, working hours, entitlement to annual leave, sick leave, maternity and special leave, terms of mobility, any loan or leasing schemes, any relevant collective agreements, facility time arrangements and additional employment benefits; db) all disciplinary, performance and grievance action taken in relation to or by each individual member of Staff within the previous two years; ec) information of any court or tribunal case, claim or action brought by each member of Staff within the previous two years or that the Contractor has reasonable grounds to believe a member of Staff may bring against the Contractor;. fd) all long term absences; and ge) details of any arrangements or collective agreements with trade unions or organisation of body of employees including elected representatives. ~~19.3~~ 48.3. The Authority shall take all necessary precautions to ensure that the information referred to in Condition ~~19.2~~ 48.2 is given only to service providers who have qualified to tender for the future provision of the Services. The Authority shall require that such service providers shall treat that information in confidence; that they shall not communicate it except to such persons within their organisation and to such extent as may be necessary for the purpose of preparing a response to an invitation to tender issued by the Authority; and that they shall not use it for any other purpose. ~~19.4~~ 48.4. The Contractor shall indemnify the Authority and a Successor Supplier against any claim made against the Authority and/or a Successor Supplier at any time by any person in respect of any liability incurred by the Authority and/or a Successor Supplier arising from any deficiency or inaccuracy in information which the Contractor is required to provide under Condition ~~19.1~~ 48.1 and 1948.2. ~~19.5~~ 48.5. The Contractor shall not – a) at any time during the Contract Period, move any persons in his employment into the undertaking or relevant part of an undertaking which provides the Services, who do not meet the standards of skill and experience, or who are in excess of the number, required for the purposes of the Contract; or b) make any substantial change in the terms and conditions of employment of any Staff which is inconsistent with the Contractor's established employment and remuneration policies. ~~19.6~~ 48.6. Where, in the opinion of the Authority's Representative, any change or proposed change in the Staff in the undertaking or relevant part of an undertaking, or any change in the terms and conditions of employment of such Staff, would be in breach of Condition ~~19.5~~48.5, the Authority shall have the right to make representations to the Contractor against the change or proposed change, and – a) where, in the opinion of the Authority's Representative, the Contractor has acted in breach of Condition ~~19.5~~48.5, the Authority shall have the right to give notice to the Contractor requiring him to remedy the breach within 30 days; and b) if the Contractor has not remedied the breach to the satisfaction of the Authority's Representative by the end of the period of 30 days, the Authority shall have the right to terminate the Contract by reason of the ~~Default~~ default of the Contractor, in accordance with Condition 4228. ~~19.7~~ 48.7. The Contractor shall allow access to the Site, in the presence of the Authority's Representative, to any person representing any service provider whom the Authority has selected to tender for the future provision of the Services. ~~19.8~~ 48.8. For the purpose of access to the Site in accordance with Condition ~~19.7~~48.7, where the Site is on the Contractor's premises, the Authority shall give the Contractor 7 days' notice of a proposed visit together with a list showing the names of all persons who will be attending those premises. ~~19.9~~ 48.9. All persons who attend the Contractor's premises for the purposes of Condition ~~19.7~~ 48.7 shall comply with the Contractor's security procedures, subject to such compliance not being in conflict with the objective of the visit. ~~19.10~~ 48.10. The Contractor shall co-operate fully with the Authority during the handover arising from the completion or earlier termination of the Contract. This co-operation, during the Setting up Operations period of the new contractor, shall extend to allowing full access to, and providing copies of, all documents, reports, summaries and any other information necessary in order to achieve an effective transition without disruption to routine operational requirements. ~~19.11~~ 48.11. Within 10 working days of being so requested by the Authority's Representative, the Contractor shall transfer to the Authority, or any Person designated by the Authority, free of charge, all computerised filing, recording, documentation, planning and drawing held on software and utilised in the provision of the Services. The transfer shall be made in a fully indexed and catalogued disk format, to operate on a proprietary software package identical to that used by the Authority. ~~19.12~~ 48.12. During the period following the earlier of: (a) the provision of notice of termination to the Contractor; or (b) the public announcement of a re-tendering of the Services, , 48.13. the Contractor shall not without the prior written agreement of the ~~Authority’s~~ Authority‟s Representative vary the terms and conditions of employment or engagement of any Staff, employ or engage any person who would become a Termination Transferring Employee, change the role or responsibilities of any person so that he/she becomes involved in the provision of the Services, terminate (or give notice to terminate) the employment or engagement of any of the Staff; nor reduce or vary the involvement of any Staff in the provision of the Services. ~~19.13~~ 48.14. No later than one (1) month prior to the Termination Transfer Date, the Contractor shall compile a draft list for approval by the Authority of the Staff whom it considers will transfer to the Authority or a Successor Supplier as a result of the TUPE Regulations. The draft list shall be finalised by the Parties prior to the Termination Transfer Date. ~~19.14~~ 48.15. At the Termination Transfer Date, the Authority and the Contractor accept that in the event that the Services or substantially similar services are to be provided by the Authority and/or a Successor Supplier then this may constitute a transfer to which the TUPE Regulations apply. In the event that ~~Authority’s~~ Authority‟s Representative determines that the TUPE Regulations apply in relation to the Termination Transfer and/or the final list of Termination Transfer Employees, the Termination Transfer Employees shall transfer to the Authority and/or the Successor Supplier on the Termination Transfer Date. ~~19.15~~ 48.16. The Authority will, or shall procure that the Successor Supplier will, in good time before the Termination Transfer Date provide to the Contractor all such information as is necessary for the Contractor or any of its ~~sub-~~ Sub-contractors and the Authority or Successor Supplier to discharge their duties under Regulation 13 10 of the TUPE Regulations. ~~19.16~~ 48.17. The Contractor shall indemnify the Authority and the Successor Supplier from and against any cost (including reasonable legal costs), claim, liability, demand, expense or other legal recourse arising out of or in connection with: (a) any claim by any Termination Transfer Employee in respect of any fact or matter concerning or arising from that Termination Transfer ~~Employee’s~~ Employee‟s employment, or its termination, before the Termination Transfer Date, including (but not limited to) any claims of unfair dismissal, wrongful dismissal, unlawful deduction from wages, breach of contract, discrimination on the grounds of sex, race, disability, religion or belief, age and sexual orientation or any claim for a redundancy payment; (b) any proceedings, claim or demand by the ~~H M~~ HM Revenue & Customs or other statutory authority in respect of any financial obligations including, but not limited to, PAYE and primary and secondary national insurance contributions in relation to the Termination Transfer Employees, to the extent that the proceedings, claim or demand by the Inland Revenue or other statutory authority relates to financial obligations arising before the Termination Transfer Date; (c) any claim by any Termination Transfer Employee or any appropriate representative of any Termination Transfer Employee relating to any failure by the Contractor or any ~~sub~~of its Sub-~~contractor~~ contractors to comply with the obligations of Regulation 13 10 of the TUPE Regulations; ~~and (d)~~ and any claim by any person (not being a Termination Transfer Employee) or his representative in respect of the termination of such ~~person’s~~ person‟s employment or engagement by the Contractor or any of its ~~sub~~Sub-~~contractor~~ contractors occurring before the Termination Transfer Date. ~~19.17~~ 48.18. If any contract of employment or engagement of any person, other than a Termination Transfer Employee, is, as a result of the commencement of the provision of the Services by the Authority or Successor Supplier deemed or alleged to have been effected between the Authority or Successor Supplier and such person, as a result of the TUPE Regulations, then: (a) the Authority or Successor Supplier may, within 1 month of becoming aware of the application of the TUPE Regulations to any such contract, terminate that contract; and (b) if any such contract is terminated the Contractor will indemnify the Authority and/or Successor Supplier against: (i) all salary and benefits due to that person in respect of their employment between the Termination Transfer Date and the date of termination of employment; and (ii) all liabilities, damages, costs (including reasonable legal costs), claims, awards and expenses arising in relation to such person out of the termination of such ~~person’s~~ person‟s employment. The Contractor procures that its ~~sub~~Sub-contractors shall indemnify the Authority and any Successor Supplier and their ~~sub~~Sub-contractors (as applicable) to the same extent as the Contractor is providing indemnities under this Condition 1948. To the extent that non-employee personnel do not transfer to the Authority or a Successor Supplier and their ~~sub~~Sub-contractors (as applicable) by virtue of the above provisions, the Contractor shall use all reasonable endeavours to ensure that those non-employee personnel, which the Authority or a Successor Provider (or their ~~sub~~Sub-contractors as applicable) express an intention to retain, transfer accordingly on the Termination Transfer Date. The Contractor shall not (and shall procure that its ~~sub~~Sub-contractors shall not) take any steps or make any undertakings to such non-employee personnel which has the effect or aims to have the effect of discouraging or preventing those personnel from working for the Authority or a Successor Supplier.

Appears in 1 contract

Samples: Contract for Security Guarding Services

RE-TENDERING AND HANDOVER. ~~19.1~~ 25.1. Within 21 days of being so requested by the Authority's Representative the Contractor shall provide: (a) and thereafter keep updated and accessible to the Authority, in a fully indexed and catalogued format, all the information reasonably necessary to enable the Authority to issue tender documents for the future provision of the Services and for a third party to prepare an informed, non-qualified offer for those Services and not be disadvantaged in any procurement process compared to the Contractor (if the Contractor is invited to participate). ~~This~~ Subject to the protection of proprietary and confidential information in accordance with Condition 32 below, this information shall include, but not be limited to, details of Staff as referred to in Condition ~~19.2~~25.2, a description of the Services and the methods used by the Contractor to provide the Services, details as to key terms of any third party contracts and licences, copies of third party contracts and licences which are to be transferred to the Authority or a Successor Supplier and details of ongoing and threatened disputes in relation to the provision of the Services. This information shall be updated on a continuing basis. (b) a draft exit plan to be agreed with the Authority that shall set out each Parties obligations in detail in order to ensure a smooth and efficient transfer of the Services to the Authority for a Successor Supplier. The Parties shall review and update the exit plan annually and as soon as reasonably practicable in the event of a material change in any aspect of the Services which could reasonably be expected to impact upon the exit plan in order to ensure that the exit plan remains relevant. ~~19.2~~ 25.2. Where, in the opinion of the Authority's Representative, the TUPE Regulations are likely to apply on the termination or expiration of the Contract, the information to be provided by the Contractor under ~~Condition 19.1~~ Condition 25.1 shall include, subject to governing laws and protected confidential information, as applicable, accurate information relating to the Staff who would be transferred under the same terms of employment under the TUPE Regulations, including in particular:- (a) the number of Staff who would be transferred, but with no obligation on the Contractor to specify their names; (b) in respect of each of those members of Staff their age, job title, sex, salary, benefits entitlement, length of service, contractual notice period, hours of work, overtime hours and rates, any other factors affecting redundancy entitlement and any outstanding claims arising from their employment; (c) the general terms and conditions of employment applicable to those members of Staff, including probationary periods, retirement age, periods of notice, current pay agreements, pension arrangements, working hours, entitlement to annual leave, sick leave, maternity and special leave, terms of mobility, any loan or leasing schemes, any relevant collective agreements, facility time arrangements and additional employment benefits; (d) all disciplinary, performance and grievance action taken in relation to or by each individual member of Staff within the previous two years; (e) information of any court or tribunal case, claim or action brought by each member of Staff within the previous two years or that the Contractor has reasonable grounds to believe a member of Staff may bring against the Contractor; (f) all long term absences; and (g) details of any arrangements or collective agreements with trade unions or organisation of body of employees including ~~elected representatives.~~elected ~~19.3~~ 25.3. The Authority shall take all necessary precautions to ensure that the information referred to in Condition ~~19.2~~ 25.2 is given only to service providers who have qualified to tender for the future provision of the Services. The Authority shall require that such service providers shall treat that information in confidence; that they shall not communicate it except to such persons within their organisation and to such extent as may be necessary for the purpose of preparing a response to an invitation to tender issued by the Authority; and that they shall not use it for any other purpose. ~~19.4~~ 25.4. The Contractor shall indemnify the Authority and a Successor Supplier against any claim made against the Authority and/or a Successor Supplier at any time by any person in respect of any liability incurred by the Authority and/or a Successor Supplier arising ~~from any deficiency or inaccuracy~~ because the Contractor did not employ reasonable effort in preparing information which the Contractor is required to provide under Condition ~~19.1~~ 25.1 and 1925.2. ~~19.5~~ 25.5. The Contractor shall not – (a) at any time during the Contract Period, move any persons in his employment into the undertaking or relevant part of an undertaking which provides the Services, who do not meet the standards of skill and experience, or who are in excess of the number, required for the purposes of the Contract; or (b) make any substantial change in the terms and conditions of employment of any Staff which is inconsistent with the Contractor's established employment and remuneration policies. ~~19.6~~ 25.6. Where, in the opinion of the Authority's Representative, any change or proposed change in the Staff in the undertaking or relevant part of an undertaking, or any change in the terms and conditions of employment of such Staff, would be in breach of Condition ~~19.5~~25.5, the Authority shall have the right to make representations to the Contractor against the change or proposed change, and – (a) where, in the opinion of the Authority's Representative, the Contractor has acted in breach of Condition ~~19.5~~25.5, the Authority shall have the right to give notice to the Contractor requiring him to remedy the breach within 30 days; and (b) if the Contractor has not remedied the breach to the satisfaction of the Authority's Representative by the end of the period of 30 days, the Authority shall have the right to terminate the Contract by reason of the Default of the Contractor, in accordance with Condition ~~42.~~48; ~~19.7~~ 25.7. The Contractor shall allow access to the Site, in the presence of the Authority's Representative, to any person representing any service provider whom the Authority has selected to tender for the future provision of the Services. ~~19.8~~ 25.8. For the purpose of access to the Site in accordance with Condition ~~19.7~~25.7, where the Site is on the Contractor's premises, the Authority shall give the Contractor 7 days' notice of a proposed visit together with a list showing the names of all persons who will be attending those premises. ~~19.9~~ 25.9. All persons who attend the Contractor's premises for the purposes of Condition ~~19.7~~ 25.7 shall comply with the Contractor's security procedures, subject to such compliance not being in conflict with the objective of the visit. ~~19.10~~ 25.10. The Contractor shall co-operate fully with the Authority during the handover arising from the completion or earlier termination of the Contract. ~~This~~ Subject to the protection of proprietary and confidential information in accordance with Condition 32 below, this co-~~operation, during the Setting up Operations period of the new contractor,~~ operation shall extend ~~to allowing full access~~ to~~, and providing copies of, all documents, reports, summaries and any other information necessary in order to achieve an effective transition without disruption to routine operational requirements.~~ ~~19.11~~ 25.11. Within 10 working days of being so requested by the Authority's Representative, the Contractor shall transfer to the Authority, or any Person designated by the Authority, free of charge, all computerised filing, recording, documentation, planning and drawing held on software and utilised in the provision of the Services. The transfer shall be made in a fully indexed and catalogued disk format, to operate on a proprietary software package identical to that used by the Authority. ~~19.12~~ 25.12. During the period following the earlier of: (a) the provision of notice of termination to the Contractor; or (b) the public announcement of a re-tendering of the Services, the Contractor shall not without the prior written agreement of the ~~Authority’s~~ Authority‟s Representative vary the terms and conditions of employment or engagement of any Staff, employ or engage any person who would become a Termination Transferring Employee, change the role or responsibilities of any person so that he/she becomes involved in the provision of the Services, terminate (or give notice to terminate) the employment or engagement of any of the Staff; nor reduce or vary the involvement of any Staff in the provision of the Services. ~~19.13~~ 25.13. No later than one (1) month prior to the Termination Transfer Date, the Contractor shall compile a draft list for approval by the Authority of the Staff whom it considers will transfer to the Authority or a Successor Supplier as a result of the TUPE Regulations. The draft list shall be finalised by the Parties prior to the Termination Transfer Date. ~~19.14~~ 25.14. At the Termination Transfer Date, the Authority and the Contractor accept that in the event that the Services or substantially similar services are to be provided by the Authority and/or a Successor Supplier then this may constitute a transfer to which the TUPE Regulations apply. In the event that ~~Authority’s~~ Authority‟s Representative determines that the TUPE Regulations apply in relation to the Termination Transfer and/or the final list of Termination Transfer Employees, the Termination Transfer Employees shall transfer to the Authority and/or the Successor Supplier on the Termination Transfer Date. ~~19.15~~ 25.15. The Authority will, or shall procure that the Successor Supplier will, in good time before the Termination Transfer Date provide to the ~~Contractor~~ Contractor, subject to the protection of proprietary and confidential information in accordance with Condition 32 below, all such information as is necessary for the Contractor or its ~~sub-~~ sub-contractors and the Authority or Successor Supplier to discharge their duties under Regulation 13 of the TUPE Regulations. ~~19.16~~ 25.16. The Contractor shall indemnify the Authority and the Successor Supplier from and against any cost (including reasonable legal costs), claim, liability, demand, expense or other legal recourse arising out of or in connection with: (a) any claim by any Termination Transfer Employee in respect of any fact or matter concerning or arising from that Termination Transfer ~~Employee’s~~ Employee‟s employment, or its termination, before the Termination Transfer Date, including (but not limited to) any claims of unfair dismissal, wrongful dismissal, unlawful deduction from wages, breach of contract, discrimination on the grounds of sex, race, disability, religion or belief, age and sexual orientation or any claim for a redundancy payment; (b) any proceedings, claim or demand by the H M Revenue & Customs or other statutory authority in respect of any financial obligations including, but not limited to, PAYE and primary and secondary national insurance contributions in relation to the Termination Transfer Employees, to the extent that the proceedings, claim or demand by the Inland Revenue or other statutory authority relates to financial obligations arising before the Termination Transfer Date; (c) any claim by any Termination Transfer Employee or any appropriate representative of any Termination Transfer Employee relating to any failure by the Contractor or any sub-contractor to comply with the obligations of Regulation 13 of the TUPE Regulations; and (d) any claim by any person (not being a Termination Transfer Employee) or his representative in respect of the termination of such ~~person’s~~ person‟s employment or engagement by the Contractor or its sub-contractor occurring before the Termination Transfer Date.; ~~19.17~~ 25.17. If any contract of employment or engagement of any person, other than a Termination Transfer Employee, is, as a result of the commencement of the provision of the Services ~~by the Authority or Successor Supplier deemed or alleged to have been effected between the Authority or Successor Supplier and such person, as a result of the TUPE Regulations, then:~~by (a) the Authority or Successor Supplier may, within 1 month of becoming aware of the application of the TUPE Regulations to any such contract, terminate that contract; and (b) if any such contract is terminated the Contractor will indemnify the Authority and/or Successor Supplier against~~: (i)~~ : i all salary and benefits due to that person in respect of their employment between the Termination Transfer Date and the date of termination of employment; ~~and (ii)~~ and ii all liabilities, damages, costs (including reasonable legal costs), claims, awards and expenses arising in relation to such person out of the termination of such ~~person’s~~ person‟s employment. The Contractor procures that its sub-contractors shall indemnify the Authority and any Successor Supplier and their sub-contractors (as applicable) to the same extent as the Contractor is providing indemnities under this Condition 1925. To the extent that non-employee personnel do not transfer to the Authority or a Successor Supplier and their sub-contractors (as applicable) by virtue of the above provisions, the Contractor shall use all reasonable endeavours to ensure that those non-employee personnel, which the Authority or a Successor Provider (or their sub-contractors as applicable) express an intention to retain, transfer accordingly on the Termination Transfer Date. The Contractor shall not (and shall procure that its sub-contractors shall not) take any steps or make any undertakings to such non-employee personnel which ~~has~~ have the effect or aims ~~to have the effect~~ of discouraging or preventing those personnel from working for the Authority or a Successor Supplier.

Appears in 1 contract

Samples: Provision of Afghan Air Bridge Contract

RE-TENDERING AND HANDOVER. ~~19.1~~ 19.1. Within 21 days of being so requested by the Authority's Representative the Contractor shall provide: (a) and thereafter keep updated and accessible to the Authority, in a fully indexed and catalogued format, all the information reasonably necessary to enable the Authority to issue tender documents for the future provision of the Services and for a third party to prepare an informed, non-qualified offer for those Services and not be disadvantaged in any procurement process compared to the Contractor (if the Contractor is invited to participate). This information shall include, but not be limited to, details of Staff as referred to in Condition ~~19.2~~19.2 (Re-tendering and handover), a description of the Services and the methods used by the Contractor to provide the Services, details as to key terms of any third party contracts and licences, copies of third party contracts and licences which are to be transferred to the Authority or a Successor Supplier and details of ongoing and threatened disputes in relation to the provision of the Services. This information shall be updated on a continuing basis. (b) a draft exit plan to be agreed with the Authority that shall set out each Parties obligations in detail in order to ensure a smooth and efficient transfer of the Services to the Authority for a Successor Supplier. The Parties shall review and update the exit plan annually and as soon as reasonably practicable in the event of a material change in any aspect of the Services which could reasonably be expected to impact upon the exit plan in order to ensure that the exit plan remains relevant. ~~19.2~~ 19.2. Where, in the opinion of the Authority's Representative, ~~the TUPE Regulations are~~ extant ARD or ETL legislation is likely to apply on the termination or expiration of the Contract, the information to be provided by the Contractor under ~~Condition~~ Condition 19.1 (Re-tendering and handover) shall include, as applicable, accurate information relating to the Staff who would be transferred under the same terms of employment under ~~the TUPE Regulations~~local ARD legislation, including in particular:- (a) the number of Staff who would be transferred, but with no obligation on the Contractor to specify their names; (b) in respect of each of those members of Staff their age, job title, sex, salary, benefits entitlement, length of service, contractual notice period, hours of work, overtime hours and rates, any other factors affecting redundancy entitlement and any outstanding claims arising from their employment; (c) the general terms and conditions of employment applicable to those members of Staff, including probationary periods, retirement age, periods of notice, current pay agreements, pension arrangements, working hours, entitlement to annual leave, sick leave, maternity and special leave, terms of mobility, any loan or leasing schemes, any relevant collective agreements, facility time arrangements and additional employment benefits; (d) all disciplinary, performance and grievance action taken in relation to or by each individual member of Staff within the previous two years; (e) information of any court or tribunal case, claim or action brought by each member of Staff within the previous two years or that the Contractor has reasonable grounds to believe a member of Staff may bring against the Contractor; (f) all long term absences; and (g) details of any arrangements or collective agreements with trade unions or organisation of body of employees including elected representatives. ~~19.3~~ 19.3. The Authority shall take all necessary precautions to ensure that the information referred to in Condition 19.2 (Re-tendering and handover) is given only to service providers who have qualified to tender for the future provision of the Services. The Authority shall require that such service providers shall treat that information in confidence; that they shall not communicate it except to such persons within their organisation and to such extent as may be necessary for the purpose of preparing a response to an invitation to tender issued by the Authority; and that they shall not use it for any other purpose. ~~19.4~~ 19.4. The Contractor shall indemnify the Authority and a Successor Supplier against any claim made against the Authority and/or a Successor Supplier at any time by any person in respect of any liability incurred by the Authority and/or a Successor Supplier arising from any deficiency or inaccuracy in information which the Contractor is required to provide under Condition 19.1 (Re- tendering and 19handover) and 19.2 (Re-tendering and handover). ~~19.5~~ 19.5. The Contractor shall not – (a) at any time during the Contract Period, move any persons in his employment into the undertaking or relevant part of an undertaking which provides the Services, who do not meet the standards of skill and experience, or who are in excess of the number, required for the purposes of the Contract; or (b) make any substantial change in the terms and conditions of employment of any Staff which is inconsistent with the Contractor's established employment and remuneration policies. ~~19.6~~ 19.6. Where, in the opinion of the Authority's Representative, any change or proposed change in the Staff in the undertaking or relevant part of an undertaking, or any change in the terms and conditions of employment of such Staff, would be in breach of Condition ~~19.5~~19.5 (Re-tendering and handover), the Authority shall have the right to make representations to the Contractor against the change or proposed change, and – (a) where, in the opinion of the Authority's Representative, the Contractor has acted in breach of Condition ~~19.5~~19.5 (Re- tendering and handover), the Authority shall have the right to give notice to the Contractor requiring him to remedy the breach within 30 days; and (b) if the Contractor has not remedied the breach to the satisfaction of the Authority's Representative by the end of the period of 30 days, the Authority shall have the right to terminate the Contract by reason of the Default of the Contractor, in accordance with Condition 4243 (Termination on Default). ~~19.7~~ 19.7. The Contractor shall allow access to the Site, in the presence of the Authority's Representative, to any person representing any service provider whom the Authority has selected to tender for the future provision of the Services. ~~19.8~~ 19.8. For the purpose of access to the Site in accordance with Condition ~~19.7~~19.7(Re-tendering and handover), where the Site is on the Contractor's premises, the Authority shall give the Contractor 7 days' notice of a proposed visit together with a list showing the names of all persons who will be attending those premises. ~~19.9~~ 19.9. All persons who attend the Contractor's premises for the purposes of Condition 19.7 (Re-tendering and handover) shall comply with the Contractor's security procedures, subject to such compliance not being in conflict with the objective of the visit. ~~19.10~~ 19.10. The Contractor shall co-operate fully with the Authority during the handover arising from the completion or earlier termination of the Contract. This co-operation, during the Setting up Operations period of the new contractor, shall extend to allowing full access to, and providing copies of, all documents, reports, summaries and any other information necessary in order to achieve an effective transition without disruption to routine operational requirements. ~~19.11~~ 19.11. Within 10 working days of being so requested by the Authority's Representative, the Contractor shall transfer to the Authority, or any Person designated by the Authority, free of charge, all computerised filing, recording, documentation, planning and drawing held on software and utilised in the provision of the Services. The transfer shall be made in a fully indexed and catalogued disk format, to operate on a proprietary software package identical to that used by the Authority. ~~19.12~~ 19.12. During the period following the earlier of: (a) the provision of notice of termination to the Contractor; or (b) the public announcement of a re-tendering of the Services, the Contractor shall not without the prior written agreement of the Authority’s Representative vary the terms and conditions of employment or engagement of any Staff, employ or engage any person who would become a Termination Transferring Employee, change the role or responsibilities of any person so that he/she becomes involved in the provision of the Services, terminate (or give notice to terminate) the employment or engagement of any of the Staff; nor reduce or vary the involvement of any Staff in the provision of the Services. ~~19.13~~ 19.13. No later than one (1) month prior to the Termination Transfer Date, the Contractor shall compile a draft list for approval by the Authority of the Staff whom it considers will transfer to the Authority or a Successor Supplier as a result of ~~the TUPE Regulations~~extant local ARD legislation. The draft list shall be finalised by the Parties prior to the Termination Transfer Date. ~~19.14~~ 19.14. At the Termination Transfer Date, the Authority and the Contractor accept that in the event that the Services or substantially similar services are to be provided by the Authority and/or a Successor Supplier then this may constitute a transfer to which ~~the TUPE Regulations apply~~extant local ARD legislation applies. In the event that Authority’s Representative determines that ~~the TUPE Regulations~~ ARD legislation does apply in relation to the Termination Transfer and/or the final list of Termination Transfer Employees, the Termination Transfer Employees shall transfer to the Authority and/or the Successor Supplier on the Termination Transfer Date. ~~19.15~~ 19.15. The Authority will, or shall procure that the Successor Supplier will, in good time before the Termination Transfer Date provide to the Contractor all such information as is necessary for the Contractor or its ~~sub-~~ sub-contractors and the Authority or Successor Supplier to discharge their duties under ~~Regulation 13 of the TUPE Regulations~~extant local ARD legislation. ~~19.16~~ 19.16. The Contractor shall indemnify the Authority and the Successor Supplier from and against any cost (including reasonable legal costs), claim, liability, demand, expense or other legal recourse arising out of or in connection with: (a) any claim by any Termination Transfer Employee in respect of any fact or matter concerning or arising from that Termination Transfer Employee’s employment, or its termination, before the Termination Transfer Date, including (but not limited to) any claims of unfair dismissal, wrongful dismissal, unlawful deduction from wages, breach of contract, discrimination on the grounds of sex, race, disability, religion or belief, age and sexual orientation or any claim for a redundancy payment; (b) any proceedings, claim or demand by the H M Revenue & Customs or other statutory authority in respect of any financial obligations including, but not limited to, PAYE and primary and secondary national insurance contributions in relation to the Termination Transfer Employees, to the extent that the proceedings, claim or demand by the Inland Revenue or other statutory authority relates to financial obligations arising before the Termination Transfer Date; (c) any claim by any Termination Transfer Employee or any appropriate representative of any Termination Transfer Employee relating to any failure by the Contractor or any sub-contractor to comply with the obligations of ~~Regulation 13 of the TUPE Regulations~~extant local ARD legislation; and (d) any claim by any person (not being a Termination Transfer Employee) or his representative in respect of the termination of such person’s employment or engagement by the Contractor or its sub-contractor occurring before the Termination Transfer Date.; ~~19.17~~ 19.17. If any contract of employment or engagement of any person, other than a Termination Transfer Employee, is, as a result of the commencement of the provision of the Services by the Authority or Successor Supplier deemed or alleged to have been effected between the Authority or Successor Supplier and such person, as a result of ~~the TUPE Regulations~~local ARD or ETL legislation, then: (a) the Authority or Successor Supplier may, within 1 month of becoming aware of the application of ~~the TUPE Regulations~~ local ARD or ETL legislation to any such contract, terminate that contract; and (b) if any such contract is terminated the Contractor will indemnify the Authority and/or Successor Supplier against: : (i) ). all salary and benefits due to that person in respect of their employment between the Termination Transfer Date and the date of termination of employment; and (ii) all liabilities, damages, costs (including reasonable legal costs), claims, awards and expenses arising in relation to such person out of the termination of such person’s employment. The Contractor procures that its sub-contractors shall indemnify the Authority and any Successor Supplier and their sub-contractors (as applicable) to the same extent as the Contractor is providing indemnities under this Condition 19. To the extent that non-employee personnel do not transfer to the Authority or a Successor Supplier and their sub-contractors (as applicable) by virtue of the above provisions, the Contractor shall use all reasonable endeavours to ensure that those non-employee personnel, which the Authority or a Successor Provider (or their sub-contractors as applicable) express an intention to retain, transfer accordingly on the Termination Transfer Date. The Contractor shall not (and shall procure that its sub-contractors shall not) take any steps or make any undertakings to such non-employee personnel which has the effect or aims to have the effect of discouraging or preventing those personnel from working for the Authority or a Successor Supplier.

Appears in 1 contract

Samples: Provision of Garden & Grounds Maintenance Agreement

RE-TENDERING AND HANDOVER. 19.1 Within 21 days of being so requested by the Authority's Representative the Contractor shall provide: (a) and thereafter keep updated and accessible to the Authority, in a fully indexed and catalogued format, all the information reasonably necessary to enable the Authority to issue tender documents for the future provision of the Services and for a third party to prepare an informed, non-qualified offer for those Services and not be disadvantaged in any procurement process compared to the Contractor (if the Contractor is invited to participate). This information shall include, but not be limited to, details of Staff as referred to in Condition 19.2, a description of the Services and the methods used by the Contractor to provide the Services, details as to key terms of any third party contracts and licences, copies of third party contracts and licences which are to be transferred to the Authority or a Successor Supplier and details of ongoing and threatened disputes in relation to the provision of the Services. This information shall be updated on a continuing basis. (b) a draft exit plan to be agreed with the Authority that shall set out each ~~Parties~~ Party‟s obligations in detail in order to ensure a smooth and efficient transfer of the Services to the Authority ~~for~~ of a Successor Supplier. The Parties shall review and update the exit plan annually and as soon as reasonably practicable in the event of a material change in any aspect of the Services which could reasonably be expected to impact upon the exit plan in order to ensure that the exit plan remains relevant. 19.2 Where, in the opinion of the Authority's Representative, the TUPE Regulations are likely to apply on the termination or expiration of the Contract, the information to be provided by the Contractor under ~~Condition~~ Condition 19.1 shall include, as applicable, accurate information relating to the Staff who would be transferred under the same terms of employment under the TUPE Regulations, including in particular:- a) the number of Staff who would be transferred~~, but with no obligation on the Contractor to specify their names~~; b) in respect of each of those members of Staff their identity, age, job title, sex, salary, benefits entitlement, length of service, contractual notice period, hours of work, overtime hours and rates, any other factors affecting redundancy entitlement and any outstanding claims arising from their employment; c) the general terms and conditions of employment applicable to those members of Staff, including probationary periods, retirement age, periods of notice, current pay agreements, pension arrangements, working hours, entitlement to annual leave, sick leave, maternity and special leave, terms of mobility, any loan or leasing schemes, any relevant collective agreements, facility time arrangements and additional employment benefits; d) all disciplinary, performance and grievance action taken in relation to or by each individual member of Staff within the previous two years; e) information of any court or tribunal case, claim or action brought by each member of Staff within the previous two years or that the Contractor has reasonable grounds to believe a member of Staff may bring against the Contractor; f) all long term absences; and g) details of any arrangements or collective agreements with trade unions or organisation of body of employees including elected representatives. 19.3 The Authority shall take all necessary precautions to ensure that the information referred to in Condition 19.2 is given only to service providers who have qualified to tender for the future provision of the Services. The Authority shall require that such service providers shall treat that information in confidence; that they shall not communicate it except to such persons within their organisation and to such extent as may be necessary for the purpose of preparing a response to an invitation to tender issued by the Authority; and that they shall not use it for any other purpose. 19.4 The Contractor shall indemnify the Authority and a Successor Supplier against any claim made against the Authority and/or a Successor Supplier at any time by any person in respect of any liability incurred by the Authority and/or a Successor Supplier arising from any deficiency or inaccuracy in information which the Contractor is required to provide under Condition 19.1 and 1919.2. 19.5 The Contractor shall not – a) at any time during the Contract Period, move any persons in his employment into the undertaking or relevant part of an undertaking which provides the Services, who do not meet the standards of skill and experience, or who are in excess of the number, required for the purposes of the Contract; or b) make any substantial change in the terms and conditions of employment of any Staff which is inconsistent with the Contractor's established employment and remuneration policies. 19.6 Where, in the opinion of the Authority's Representative, any change or proposed change in the Staff in the undertaking or relevant part of an undertaking, or any change in the terms and conditions of employment of such Staff, would be in breach of Condition 19.5, the Authority shall have the right to make representations to the Contractor against the change or proposed change, and – a) where, in the opinion of the Authority's Representative, the Contractor has acted in breach of Condition 19.5, the Authority shall have the right to give notice to the Contractor requiring him to remedy the breach within 30 days; and b) if the Contractor has not remedied the breach to the satisfaction of the Authority's Representative by the end of the period of 30 days, the Authority shall have the right to terminate the Contract by reason of the ~~Default~~ default of the Contractor, in accordance with Condition 42. 19.7 The Contractor shall allow access to the Site, in the presence of the Authority's Representative, to any person representing any service provider whom the Authority has selected to tender for the future provision of the Services. 19.8 For the purpose of access to the Site in accordance with Condition 19.7, where the Site is on the Contractor's premises, the Authority shall give the Contractor 7 days' notice of a proposed visit together with a list showing the names of all persons who will be attending those premises. 19.9 All persons who attend the Contractor's premises for the purposes of Condition 19.7 shall comply with the Contractor's security procedures, subject to such compliance not being in conflict with the objective of the visit. 19.10 The Contractor shall co-operate fully with the Authority during the handover arising from the completion or earlier termination of the Contract. This co-operation, during the Setting up Operations period of the new contractor, shall extend to allowing full access to, and providing copies of, all documents, reports, summaries and any other information necessary in order to achieve an effective transition without disruption to routine operational requirements. 19.11 Within 10 working days of being so requested by the Authority's Representative, the Contractor shall transfer to the Authority, or any Person designated by the Authority, free of charge, all computerised filing, recording, documentation, planning and drawing held on software and utilised in the provision of the Services. The transfer shall be made in a fully indexed and catalogued disk format, to operate on a proprietary software package identical to that used by the Authority. 19.12 During the period following the earlier of: (a) the provision of notice of termination to the Contractor; or (b) the public announcement of a re-tendering of the Services, the Contractor shall not without the prior written agreement of the ~~Authority’s~~ Authority‟s Representative vary the terms and conditions of employment or engagement of any Staff, employ or engage any person who would become a Termination Transferring Employee, change the role or responsibilities of any person so that he/she becomes involved in the provision of the Services, terminate (or give notice to terminate) the employment or engagement of any of the Staff; nor reduce or vary the involvement of any Staff in the provision of the Services. 19.13 No later than one (1) month prior to the Termination Transfer Date, the Contractor shall compile a draft list for approval by the Authority of the Staff whom it considers will transfer to the Authority or a Successor Supplier as a result of the TUPE Regulations. The draft list shall be finalised by the Parties prior to the Termination Transfer Date. 19.14 At the Termination Transfer Date, the Authority and the Contractor accept that in the event that the Services or substantially similar services are to be provided by the Authority and/or a Successor Supplier then this may constitute a transfer to which the TUPE Regulations apply. In the event that Authority’s Representative determines that the TUPE Regulations apply in relation to the Termination Transfer and/or the final list of Termination Transfer Employees, the Termination Transfer Employees shall transfer to the Authority and/or the Successor Supplier on the Termination Transfer Date. 19.15 The Authority will, or shall procure that the Successor Supplier will, in good time before the Termination Transfer Date provide to the Contractor all such information as is necessary for the Contractor or its sub- contractors and the Authority or Successor Supplier to discharge their duties under Regulation 13 of the TUPE Regulations. 19.16 The Contractor shall indemnify the Authority and the Successor Supplier from and against any cost (including reasonable legal costs), claim, liability, demand, expense or other legal recourse arising out of or in connection with: (a) any claim by any Termination Transfer Employee in respect of any fact or matter concerning or arising from that Termination Transfer Employee’s employment, or its termination, before the Termination Transfer Date, including (but not limited to) any claims of unfair dismissal, wrongful dismissal, unlawful deduction from wages, breach of contract, discrimination on the grounds of sex, race, disability, religion or belief, age and sexual orientation or any claim for a redundancy payment; (b) any proceedings, claim or demand by the H M Revenue & Customs or other statutory authority in respect of any financial obligations including, but not limited to, PAYE and primary and secondary national insurance contributions in relation to the Termination Transfer Employees, to the extent that the proceedings, claim or demand by the Inland Revenue or other statutory authority relates to financial obligations arising before the Termination Transfer Date; (c) any claim by any Termination Transfer Employee or any appropriate representative of any Termination Transfer Employee relating to any failure by the Contractor or any sub-contractor to comply with the obligations of Regulation 13 of the TUPE Regulations; and (d) any claim by any person (not being a Termination Transfer Employee) or his representative in respect of the termination of such person’s employment or engagement by the Contractor or its sub-contractor occurring before the Termination Transfer Date. 19.17 If any contract of employment or engagement of any person, other than a Termination Transfer Employee, is, as a result of the commencement of the provision of the Services by the Authority or Successor Supplier deemed or alleged to have been effected between the Authority or Successor Supplier and such person, as a result of the TUPE Regulations, then: (a) the Authority or Successor Supplier may, within 1 month of becoming aware of the application of the TUPE Regulations to any such contract, terminate that contract; and (b) if any such contract is terminated the Contractor will indemnify the Authority and/or Successor Supplier against: (i) all salary and benefits due to that person in respect of their employment between the Termination Transfer Date and the date of termination of employment; and (ii) all liabilities, damages, costs (including reasonable legal costs), claims, awards and expenses arising in relation to such person out of the termination of such person’s employment. The Contractor procures that its sub-contractors shall indemnify the Authority and any Successor Supplier and their sub-contractors (as applicable) to the same extent as the Contractor is providing indemnities under this Condition 19. To the extent that non-employee personnel do not transfer to the Authority or a Successor Supplier and their sub-contractors (as applicable) by virtue of the above provisions, the Contractor shall use all reasonable endeavours to ensure that those non-employee personnel, which the Authority or a Successor Provider (or their sub-contractors as applicable) express an intention to retain, transfer accordingly on the Termination Transfer Date. The Contractor shall not (and shall procure that its sub-contractors shall not) take any steps or make any undertakings to such non-employee personnel which has the effect or aims to have the effect of discouraging or preventing those personnel from working for the Authority or a Successor Supplier.

Appears in 1 contract

Samples: Contract for the Provision of Disability Support Services

RE-TENDERING AND HANDOVER. 19.1 Within 21 30 days of being so requested by the Authority's Representative the ~~Contractor~~ Supplier shall provide: (a) and thereafter keep updated and accessible to the Authority, in a fully indexed and catalogued format, all the information reasonably necessary to enable the Authority to issue tender documents for the future provision of the Services and for a third party to prepare an informed, non-qualified offer for those Services and not be disadvantaged in any procurement process compared to the ~~Contractor~~ Supplier (if the ~~Contractor~~ Supplier is invited to participate). This information shall include, but not be limited to, details of Staff as referred to in Condition ~~19.2~~19.2 (Re-tendering and handover), a description of the Services and the methods used by the ~~Contractor~~ Supplier to provide the Services, details as to key terms of any third party contracts and licences, copies of third party contracts and licences which are to be transferred to the Authority or a Successor Supplier and details of ongoing and threatened disputes in relation to the provision of the Services. This information shall be updated on a continuing basis. (b) a draft exit plan to be agreed with the Authority that shall set out each ~~Parties~~ Party’s obligations in detail in order to ensure a smooth and efficient transfer of the Services to the Authority for a Successor Supplier. The Parties shall review and update the exit plan annually and as soon as reasonably practicable in the event of a material change in any aspect of the Services which could reasonably be expected to impact upon the exit plan in order to ensure that the exit plan remains relevant. 19.2 Where, in the opinion of the Authority's Representative, the TUPE Regulations are likely to apply on the termination or expiration of the Contract, the information to be provided by the ~~Contractor~~ Supplier under Condition 19.1 (Re-tendering and handover) shall include, as applicable, accurate information relating to the Staff who would be transferred under the same terms of employment under the TUPE Regulations, including in particular:- a) the number of Staff who would be transferred, but with no obligation on the ~~Contractor~~ Supplier to specify their names; b) in respect of each of those members of Staff their age, job title, sex, salary, benefits entitlement, length of service, contractual notice period, hours of work, overtime hours and rates, any other factors affecting redundancy entitlement and any outstanding claims arising from their employment; c) the general terms and conditions of employment applicable to those members of Staff, including probationary periods, retirement age, periods of notice, current pay agreements, pension arrangements, working hours, entitlement to annual leave, sick leave, maternity and special leave, terms of mobility, any loan or leasing schemes, any relevant collective agreements, facility time arrangements and additional employment benefits; d) all disciplinary, performance and grievance action taken in relation to or by each individual member of Staff within the previous two years; e) information of any court or tribunal case, claim or action brought by each member of Staff within the previous two years or that the ~~Contractor~~ Supplier has reasonable grounds to believe a member of Staff may bring against the ~~Contractor~~Supplier; f) all long term absences; and g) details of any arrangements or collective agreements with trade unions or organisation of body of employees including elected representatives. 19.3 The Authority shall take all necessary precautions to ensure that the information referred to in Condition 19.2 is given only to service providers who have qualified to tender for the future provision of the Services. The Authority shall require that such service providers shall treat that information in confidence; that they shall not communicate it except to such persons within their organisation and to such extent as may be necessary for the purpose of preparing a response to an invitation to tender issued by the Authority; and that they shall not use it for any other purpose. 19.4 The Contractor shall indemnify the Authority and a Successor Supplier against any claim made against the Authority and/or a Successor Supplier at any time by any person in respect of any liability incurred by the Authority and/or a Successor Supplier arising from any deficiency or inaccuracy in information which the Contractor is required to provide under Condition 19.1 and 19. 19.5 The Contractor shall not – a) at any time during the Contract Period, move any persons in his employment into the undertaking or relevant part of an undertaking which provides the Services, who do not meet the standards of skill and experience, or who are in excess of the number, required for the purposes of the Contract; or b) make any substantial change in the terms and conditions of employment of any Staff which is inconsistent with the Contractor's established employment and remuneration policies. 19.6 Where, in the opinion of the Authority's Representative, any change or proposed change in the Staff in the undertaking or relevant part of an undertaking, or any change in the terms and conditions of employment of such Staff, would be in breach of Condition 19.5, the Authority shall have the right to make representations to the Contractor against the change or proposed change, and – a) where, in the opinion of the Authority's Representative, the Contractor has acted in breach of Condition 19.5, the Authority shall have the right to give notice to the Contractor requiring him to remedy the breach within 30 days; and b) if the Contractor has not remedied the breach to the satisfaction of the Authority's Representative by the end of the period of 30 days, the Authority shall have the right to terminate the Contract by reason of the Default of the Contractor, in accordance with Condition 42. 19.7 The Contractor shall allow access to the Site, in the presence of the Authority's Representative, to any person representing any service provider whom the Authority has selected to tender for the future provision of the Services. 19.8 For the purpose of access to the Site in accordance with Condition 19.7, where the Site is on the Contractor's premises, the Authority shall give the Contractor 7 days' notice of a proposed visit together with a list showing the names of all persons who will be attending those premises. 19.9 All persons who attend the Contractor's premises for the purposes of Condition 19.7 shall comply with the Contractor's security procedures, subject to such compliance not being in conflict with the objective of the visit. 19.10 The Contractor shall co-operate fully with the Authority during the handover arising from the completion or earlier termination of the Contract. This co-operation, during the Setting up Operations period of the new contractor, shall extend to allowing full access to, and providing copies of, all documents, reports, summaries and any other information necessary in order to achieve an effective transition without disruption to routine operational requirements. 19.11 Within 10 working days of being so requested by the Authority's Representative, the Contractor shall transfer to the Authority, or any Person designated by the Authority, free of charge, all computerised filing, recording, documentation, planning and drawing held on software and utilised in the provision of the Services. The transfer shall be made in a fully indexed and catalogued disk format, to operate on a proprietary software package identical to that used by the Authority. 19.12 During the period following the earlier of: (a) the provision of notice of termination to the Contractor; or (b) the public announcement of a re-tendering of the Services, the Contractor shall not without the prior written agreement of the Authority’s Representative vary the terms and conditions of employment or engagement of any Staff, employ or engage any person who would become a Termination Transferring Employee, change the role or responsibilities of any person so that he/she becomes involved in the provision of the Services, terminate (or give notice to terminate) the employment or engagement of any of the Staff; nor reduce or vary the involvement of any Staff in the provision of the Services. 19.13 No later than one (1) month prior to the Termination Transfer Date, the Contractor shall compile a draft list for approval by the Authority of the Staff whom it considers will transfer to the Authority or a Successor Supplier as a result of the TUPE Regulations. The draft list shall be finalised by the Parties prior to the Termination Transfer Date. 19.14 At the Termination Transfer Date, the Authority and the Contractor accept that in the event that the Services or substantially similar services are to be provided by the Authority and/or a Successor Supplier then this may constitute a transfer to which the TUPE Regulations apply. In the event that Authority’s Representative determines that the TUPE Regulations apply in relation to the Termination Transfer and/or the final list of Termination Transfer Employees, the Termination Transfer Employees shall transfer to the Authority and/or the Successor Supplier on the Termination Transfer Date. 19.15 The Authority will, or shall procure that the Successor Supplier will, in good time before the Termination Transfer Date provide to the Contractor all such information as is necessary for the Contractor or its sub- contractors and the Authority or Successor Supplier to discharge their duties under Regulation 13 of the TUPE Regulations. 19.16 The Contractor shall indemnify the Authority and the Successor Supplier from and against any cost (including reasonable legal costs), claim, liability, demand, expense or other legal recourse arising out of or in connection with: (a) any claim by any Termination Transfer Employee in respect of any fact or matter concerning or arising from that Termination Transfer Employee’s employment, or its termination, before the Termination Transfer Date, including (but not limited to) any claims of unfair dismissal, wrongful dismissal, unlawful deduction from wages, breach of contract, discrimination on the grounds of sex, race, disability, religion or belief, age and sexual orientation or any claim for a redundancy payment; (b) any proceedings, claim or demand by the H M Revenue & Customs or other statutory authority in respect of any financial obligations including, but not limited to, PAYE and primary and secondary national insurance contributions in relation to the Termination Transfer Employees, to the extent that the proceedings, claim or demand by the Inland Revenue or other statutory authority relates to financial obligations arising before the Termination Transfer Date; (c) any claim by any Termination Transfer Employee or any appropriate representative of any Termination Transfer Employee relating to any failure by the Contractor or any sub-contractor to comply with the obligations of Regulation 13 of the TUPE Regulations; and (d) any claim by any person (not being a Termination Transfer Employee) or his representative in respect of the termination of such person’s employment or engagement by the Contractor or its sub-contractor occurring before the Termination Transfer Date. 19.17 If any contract of employment or engagement of any person, other than a Termination Transfer Employee, is, as a result of the commencement of the provision of the Services by the Authority or Successor Supplier deemed or alleged to have been effected between the Authority or Successor Supplier and such person, as a result of the TUPE Regulations, then: (a) the Authority or Successor Supplier may, within 1 month of becoming aware of the application of the TUPE Regulations to any such contract, terminate that contract; and (b) if any such contract is terminated the Contractor will indemnify the Authority and/or Successor Supplier against: (i) all salary and benefits due to that person in respect of their employment between the Termination Transfer Date and the date of termination of employment; and (ii) all liabilities, damages, costs (including reasonable legal costs), claims, awards and expenses arising in relation to such person out of the termination of such person’s employment. The Contractor procures that its sub-contractors shall indemnify the Authority and any Successor Supplier and their sub-contractors (as applicable) to the same extent as the Contractor is providing indemnities under this Condition 19. To the extent that non-employee personnel do not transfer to the Authority or a Successor Supplier and their sub-contractors (as applicable) by virtue of the above provisions, the Contractor shall use all reasonable endeavours to ensure that those non-employee personnel, which the Authority or a Successor Provider (or their sub-contractors as applicable) express an intention to retain, transfer accordingly on the Termination Transfer Date. The Contractor shall not (and shall procure that its sub-contractors shall not) take any steps or make any undertakings to such non-employee personnel which has the effect or aims to have the effect of discouraging or preventing those personnel from working for the Authority or a Successor Supplier.Condition

Appears in 1 contract

Samples: Framework Agreement

RE-TENDERING AND HANDOVER. 19.1 Within 21 days of being so requested by the Authority's Representative the Contractor shall provide: (a) and thereafter keep updated and accessible to the Authority, in a fully indexed and catalogued format, all the information reasonably necessary to enable the Authority to issue tender documents for the future provision of the Services and for a third party to prepare an informed, non-qualified offer for those Services and not be disadvantaged in any procurement process compared to the Contractor (if the Contractor is invited to participate). This information shall include, but not be limited to, details of Staff as referred to in Condition 19.2, a description of the Services and the methods used by the Contractor to provide the Services, details as to key terms of any third party contracts and licences, copies of third party contracts and licences which are to be transferred to the Authority or a Successor Supplier and details of ongoing and threatened disputes in relation to the provision of the Services. This information shall be updated on a continuing basis. (b) a draft exit plan to be agreed with the Authority that shall set out each Parties obligations in detail in order to ensure a smooth and efficient transfer of the Services to the Authority for a Successor Supplier. The Parties shall review and update the exit plan annually and as soon as reasonably practicable in the event of a material change in any aspect of the Services which could reasonably be expected to impact upon the exit plan in order to ensure that the exit plan remains relevant. 19.2 Where, in the opinion of the Authority's Representative, the TUPE Regulations are likely to apply on the termination or expiration of the Contract, the information to be provided by the Contractor under ~~Condition~~ Condition 19.1 shall include, as applicable, accurate information relating to the Staff who would be transferred under the same terms of employment under the TUPE Regulations, including in particular:- a) the number of Staff who would be transferred, but with no obligation on the Contractor to specify their names; b) in respect of each of those members of Staff their age, job title, sex, salary, benefits entitlement, length of service, contractual notice period, hours of work, overtime hours and rates, any other factors affecting redundancy entitlement and any outstanding claims arising from their employment; c) the general terms and conditions of employment applicable to those members of Staff, including probationary periods, retirement age, periods of notice, current pay agreements, pension arrangements, working hours, entitlement to annual leave, sick leave, maternity and special leave, terms of mobility, any loan or leasing schemes, any relevant collective agreements, facility time arrangements and additional employment benefits; d) all disciplinary, performance and grievance action taken in relation to or by each individual member of Staff within the previous two years; e) information of any court or tribunal case, claim or action brought by each member of Staff within the previous two years or that the Contractor has reasonable grounds to believe a member of Staff may bring against the Contractor; f) all long term absences; and g) details of any arrangements or collective agreements with trade unions or organisation of body of employees including elected representatives. 19.3 The Authority shall take all necessary precautions to ensure that the information referred to in Condition 19.2 is given only to service providers who have qualified to tender for the future provision of the Services. The Authority shall require that such service providers shall treat that information in confidence; that they shall not communicate it except to such persons within their organisation and to such extent as may be necessary for the purpose of preparing a response to an invitation to tender issued by the Authority; and that they shall not use it for any other purpose. 19.4 The Contractor shall indemnify the Authority and a Successor Supplier against any claim made against the Authority and/or a Successor Supplier at any time by any person in respect of any liability incurred by the Authority and/or a ~~Successor Supplier arising from any deficiency or inaccuracy in information which the Contractor is required to provide under Condition 19.1 and 19.~~Successor 19.5 The Contractor shall not – a) at any time during the Contract Period, move any persons in his employment into the undertaking or relevant part of an undertaking which provides the Services, who do not meet the standards of skill and experience, or who are in excess of the number, required for the purposes of the Contract; or b) make any substantial change in the terms and conditions of employment of any Staff which is inconsistent with the Contractor's established employment and remuneration policies. 19.6 Where, in the opinion of the Authority's Representative, any change or proposed change in the Staff in the undertaking or relevant part of an undertaking, or any change in the terms and conditions of employment of such Staff, would be in breach of Condition 19.5, the Authority shall have the right to make representations to the Contractor against the change or proposed change, and – a) where, in the opinion of the Authority's Representative, the Contractor has acted in breach of Condition 19.5, the Authority shall have the right to give notice to the Contractor requiring him to remedy the breach within 30 days; and b) if the Contractor has not remedied the breach to the satisfaction of the Authority's Representative by the end of the period of 30 days, the Authority shall have the right to terminate the Contract by reason of the Default of the Contractor, in accordance with Condition 4243. 19.7 The Contractor shall allow access to the Site, in the presence of the Authority's Representative, to any person representing any service provider whom the Authority has selected to tender for the future provision of the Services. 19.8 For the purpose of access to the Site in accordance with Condition 19.7, where the Site is on the Contractor's premises, the Authority shall give the Contractor 7 days' notice of a proposed visit together with a list showing the names of all persons who will be attending those premises. 19.9 All persons who attend the Contractor's premises for the purposes of Condition 19.7 shall comply with the Contractor's security procedures, subject to such compliance not being in conflict with the objective of the visit. 19.10 The Contractor shall co-operate fully with the Authority during the handover arising from the completion or earlier termination of the Contract. This co-operation, during the Setting up Operations period of the new contractor, shall extend to allowing full access to, and providing copies of, all documents, reports, summaries and any other information necessary in order to achieve an effective transition without disruption to routine operational requirements. 19.11 Within 10 working days of being so requested by the Authority's Representative, the Contractor shall transfer to the Authority, or any Person designated by the Authority, free of charge, all computerised filing, recording, documentation, planning and drawing held on software and utilised in the provision of the Services. The transfer shall be made in a fully indexed and catalogued disk format, to operate on a proprietary software package identical to that used by the Authority. 19.12 During the period following the earlier of: (a) the provision of notice of termination to the Contractor; or (b) the public announcement of a re-tendering of the Services, the Contractor shall not without the prior written agreement of the Authority’s Representative vary the terms and conditions of employment or engagement of any Staff, employ or engage any person who would become a Termination Transferring Employee, change the role or responsibilities of any person so that he/she becomes involved in the provision of the Services, terminate (or give notice to terminate) the employment or engagement of any of the Staff; nor reduce or vary the involvement of any Staff in the provision of the Services. 19.13 No later than one (1) month prior to the Termination Transfer Date, the Contractor shall compile a draft list for approval by the Authority of the Staff whom it considers will transfer to the Authority or a Successor Supplier as a result of the TUPE Regulations. The draft list shall be finalised by the Parties prior to the Termination Transfer Date. 19.14 At the Termination Transfer Date, the Authority and the Contractor accept that in the event that the Services or substantially similar services are to be provided by the Authority and/or a Successor Supplier then this may constitute a transfer to which the TUPE Regulations apply. In the event that Authority’s Representative determines that the TUPE Regulations apply in relation to the Termination Transfer and/or the final list of Termination Transfer Employees, the Termination Transfer Employees shall transfer to the Authority and/or the Successor Supplier on the Termination Transfer Date. 19.15 The Authority will, or shall procure that the Successor Supplier will, in good time before the Termination Transfer Date provide to the Contractor all such information as is necessary for the Contractor or its ~~sub-~~ sub-contractors and the Authority or Successor Supplier to discharge their duties under Regulation 13 of the TUPE Regulations. 19.16 The Contractor shall indemnify the Authority and the Successor Supplier from and against any cost (including reasonable legal costs), claim, liability, demand, expense or other legal recourse arising out of or in connection with: (a) any claim by any Termination Transfer Employee in respect of any fact or matter concerning or arising from that Termination Transfer Employee’s employment, or its termination, before the Termination Transfer Date, including (but not limited to) any claims of unfair dismissal, wrongful dismissal, unlawful deduction from wages, breach of contract, discrimination on the grounds of sex, race, disability, religion or belief, age and sexual orientation or any claim for a redundancy payment; (b) any proceedings, claim or demand by the H M Revenue & Customs or other statutory authority in respect of any financial obligations including, but not limited to, PAYE and primary and secondary national insurance contributions in relation to the Termination Transfer Employees, to the extent that the proceedings, claim or demand by the Inland Revenue or other statutory authority relates to financial obligations arising before the Termination Transfer Date; (c) any claim by any Termination Transfer Employee or any appropriate representative of any Termination Transfer Employee relating to any failure by the Contractor or any sub-contractor to comply with the obligations of Regulation 13 of the TUPE Regulations; and (d) any claim by any person (not being a Termination Transfer Employee) or his representative in respect of the termination of such person’s employment or engagement by the Contractor or its sub-contractor occurring before the Termination Transfer Date. 19.17 If any contract of employment or engagement of any person, other than a Termination Transfer Employee, is, as a result of the commencement of the provision of the Services by the Authority or Successor Supplier deemed or alleged to have been effected between the Authority or Successor Supplier and such person, as a result of the TUPE Regulations, then: (a) the Authority or Successor Supplier may, within 1 month of becoming aware of the application of the TUPE Regulations to any such contract, terminate that contract; and (b) if any such contract is terminated the Contractor will indemnify the Authority and/or Successor Supplier against: (i) all salary and benefits due to that person in respect of their employment between the Termination Transfer Date and the date of termination of employment; and (ii) all liabilities, damages, costs (including reasonable legal costs), claims, awards and expenses arising in relation to such person out of the termination of such person’s employment. The Contractor procures that its sub-contractors shall indemnify the Authority and any Successor Supplier and their sub-contractors (as applicable) to the same extent as the Contractor is providing indemnities under this Condition 19. To the extent that non-employee personnel do not transfer to the Authority or a Successor Supplier and their ~~sub-~~sub- contractors (as applicable) by virtue of the above provisions, the Contractor shall use all reasonable endeavours to ensure that those non-employee personnel, which the Authority or a Successor Provider (or their sub-contractors as applicable) express an intention to retain, transfer accordingly on the Termination Transfer Date. The Contractor shall not (and shall procure that its sub-contractors shall not) take any steps or make any undertakings to such ~~non-~~non- employee personnel which has the effect or aims to have the effect of discouraging or preventing those personnel from working for the Authority or a Successor Supplier.

Appears in 1 contract

Samples: Contract for the Provision of Services

Common use of RE-TENDERING AND HANDOVER Clause in Contracts