Dated 2014

[NOTE TO BIDDERS: DO NOT DATE THIS DOCUMENT when signing. The DfT will date this document when it signs it and will return a copy to those Applicants that pre-qualify to receive an Invitation to Negotiate.]

CONTRACT LETTING

PROCESS AGREEMENT

BETWEEN

THE SECRETARY OF STATE FOR TRANSPORT

AND

[INSERT APPLICANT('S)(S’) NAMES]

Vehicle Certification Agency - New Commercial Model

Department for Transport

Great Minster House

33 Horseferry Road

London

SW1P 4DR

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THIS DEED IS MADE 2014

[NOTE TO BIDDERS: DO NOT DATE THIS DOCUMENT when signing. The DfT will date this document when it signs it and will return a copy to those Applicants that pre-qualify to receive an Invitation to Negotiate.]

BETWEEN

(1) THE SECRETARY OF STATE FOR TRANSPORT acting as part of the Crown (the "Secretary of State") whose principal place of business is Great Minster House, 33 Horseferry Road, London SW1P 4DR;

AND

(2) The Applicant or Applicants named in Schedule 2 to this Deed (each an “Applicant” and collectively the “Applicants” (as appropriate)).

[NOTE TO BIDDERS: Please fully complete Schedule 2.]

BACKGROUND:

(a) The Secretary of State has announced his intention to invite bids for a commercial partner with whom he intends to enter into a joint venture to develop and grow the business of the Vehicle Certification Agency (“VCA”).

(b) The Applicant has (or Applicants have (as appropriate)) submitted or is/are about to submit a PQQ Response to the Secretary of State to express an interest to be invited to participate in a series of negotiations in connection with:

a. the entry into of a joint venture with the Secretary of State in respect of the operation of a new company ("NewCo"), formed to provide certain services to the Secretary of State; and

b. the award of one or more contract(s) by the Secretary of State to NewCo (“the Contract(s)”) in respect of the delivery of those services,

("the Project").

(c) Further details in relation to the Project have been laid down in:

a. the OJEU Contract Notice ("OJEU");

b. the Initial Descriptive Document ("IDD");

c. the pre-qualification questionnaire ("PQQ");

d. the PQQ guidance document ("PQQ Guidance Document");

e. the evaluation spreadsheet ("Evaluation Spreadsheet"); and

f. the glossary of terms that accompanies the documents listed in (b) to (e) (inclusive) above ("Glossary"),

(together with this Agreement, the "PQQ Documentation Suite").

(d) The Secretary of State possesses certain information relating to the Project, which is of a confidential nature.

(e) The Applicant(s) will require access to such information for the purpose of formulating a proposal and entering into a process of negotiation, if selected to do so, with the Secretary of State in respect of the Project.

(f) The Secretary of State will require and make use of information supplied to him by those intending to formulate and those making Letting Proposals.

(g) It is a condition of participating in the competition for the Project that the Applicants enter into this Agreement and submit it with their PQQ Response.

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It is now agreed as follows:

1 DEFINITIONS AND INTERPRETATION

Schedule 1 to this Agreement contains definitions and principles of interpretation which shall apply in respect of this Agreement. The definitions contained in the Glossary shall not apply to this Agreement.

2 PROVISION OF INFORMATION

2.1 Each Applicant shall provide the Secretary of State with such information concerning the Letting Proposal, any Applicant or any Affiliate or their respective businesses as the Secretary of State may require. Each Applicant shall present such information in such manner, including preparing such analyses and disaggregated presentations of information, as the Secretary of State may reasonably require.

2.2 Each Applicant shall comply with its obligations under this clause 2 promptly and in accordance with any reasonable timetable of which the Secretary of State may notify the Applicant.

2.3 The Applicant(s) shall nominate one individual to whom all queries raised by the Secretary of State or his representatives may be addressed and who shall be responsible on behalf of the Applicant(s) for complying with requests for information pursuant to this clause 2. If there is more than one Applicant signing this Agreement, the nominated individual should have authority to receive and provide information on behalf of all of the Applicants signing this Agreement.

2.4 In particular, and without limitation, the Applicant(s) shall:

2.4.1 provide information in either hard copy or electronic form and, if electronically, in a format of the Secretary of State’s choosing; and

2.4.2 respond to requests for information (including clarification questions in relation to the Letting Proposal) within not more than 14 calendar days of receipt, unless otherwise agreed in writing by the Secretary of State.

3 WARRANTY

Each Applicant warrants, represents and undertakes to the Secretary of State that:

3.1 all Applicant Information is unless otherwise notified in writing to the Secretary of State and accepted by him, true, accurate, complete and not misleading in all material respects (to the best of the Applicant's knowledge) both as at the date disclosed to or obtained by the Secretary of State (as the case may be) and at all times prior to the Award Date;

3.2 they will inform the Secretary of State in writing of any material change to, and of any material change in circumstances which may affect the truth, completeness or accuracy of, any Applicant Information immediately upon becoming aware of such change; and

3.3 it is duly authorised to sign this Agreement, and each Applicant has validly executed this Agreement as a Deed in English law.

4 CONFIDENTIALITY

4.1 In consideration of the disclosure of Secretary of State Information to it in connection with the Contract Letting Process, subject to clause 4.4 each Applicant undertakes that it shall and shall procure that its representatives, agents, employees, subcontractors and partners shall:

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4.1.1 at all times (whether or not negotiations proceed in relation to the Letting Proposal and notwithstanding that the Applicant('s)(s') involvement in the Contract Letting Process may have finished at an earlier date) keep all Secretary of State Information secret and confidential and shall not disclose any Secretary of State Information, or any other knowledge acquired about the Secretary of State and/or the Project in the course of the Contract Letting Process, to any Third Party;

4.1.2 not disclose to any Third Party any information about the Contract Letting Process or any details relating to the status of any negotiations between the Secretary of State and the Applicant(s) or any Alternative Applicant other than the fact that the Applicant(s) is/are investigating the possibility of submitting, or have submitted, a Letting Proposal;

4.1.3 not disclose Secretary of State Information to the representatives of any Applicant or any Affiliate except to the extent that such representatives or such Affiliate need to know Secretary of State Information for the purposes of evaluating whether or not and on what terms the Applicant(s) might proceed with the Letting Proposal;

4.1.4 not make contact with:

4.1.4.1 the VCA; and/or

4.1.4.2 any of the VCA's employees, agents or representatives; and/or

4.1.4.3 any operator of automotive vehicle development testing or certification services (not being an Affiliate) or any representatives or associates of such operators, in each case who provide services to the VCA,

in connection with the Letting Proposal or the Contract Letting Process outside of the formal communication channels which have been put in place in respect of the Contract Letting Process, as further detailed in the PQQ Documentation Suite, without the prior written consent of the Secretary of State;

4.1.5 on written demand from the Secretary of State or if the Applicant(s) withdraw(s) or is/are ejected from the Contract Letting Process, return any Secretary of State Information in their possession or control to the Secretary of State without keeping any copies thereof and either hand over to the Secretary of State or destroy all notes, memoranda or other records (including electronic records) containing or reflecting any Secretary of State Information and, if required to do so by the Secretary of State, provide written confirmation of their compliance with this clause 4.1.5; and

4.1.6 ensure that any representative, agent or employee of any Applicant, and any Affiliate, to whom disclosure of Secretary of State Information is made are made aware of the obligations of confidentiality contained in this Agreement and shall procure that they comply with the terms of this Agreement and, at the request of the Secretary of State, shall procure that any such representative, agent or employee of any Applicant, and any Affiliate (in either case as the Secretary of State may direct), to whom disclosure of Secretary of State Information is made, enters into a legally binding agreement with the Secretary of State in writing in advance of such disclosure to adhere to the terms of this Agreement as if such representative or Affiliate was a party hereto and was subject to the obligations of an Applicant hereunder.

4.2 Each Applicant agrees to allow the Secretary of State reasonable access to their premises or any other premises at which Secretary of State Information is kept, for the purpose of verifying that the Applicant has complied with its obligations under the undertaking in clause 4.1.

4.3 Subject to clauses 4.4, 4.6 and 4.6.1, the Secretary of State undertakes that he and his representatives shall at all times keep all Applicant Information secret and confidential and shall not disclose any Applicant Information to any Third Party without the consent of the Applicant.

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4.4 The undertakings in clauses 4.1 and 4.3 shall not apply to any disclosure of Confidential Information:

4.4.1 expressly authorised by this Agreement or agreed in writing between the Parties;

4.4.2 by any Party or Beneficiary to its representatives to the extent that such representatives need to know such Confidential Information for (i) the purposes set out in clause 4.1.3 (in respect of the Applicant(s)); or (ii) the purposes of the Project (in respect of the Secretary of State);

4.4.3 required by any applicable law or by any supervisory or regulatory body (including the Financial Conduct Authority, the Prudential Regulation Authority, the Competition Commission, the National Audit Office and the Panel on Takeovers and Mergers) to whose authority the disclosing Party (including its shares or securities) is subject or with whose rules the disclosing Party is required to comply;

4.4.4 which is in or subsequently comes into the public domain (unless as a result of a breach of this Agreement or any undertaking given pursuant to this Agreement);

4.4.5 which was lawfully in the disclosing Party’s possession before the information was disclosed to it as part of the Contract Letting Process (as can be demonstrated by its written records) and, where the disclosing Party is not a Beneficiary, was not acquired directly or indirectly from any Beneficiary,

provided that should any Applicant or any of its representatives become aware that it or they may become compelled by law or by any supervisory or regulatory body to disclose any Secretary of State Information, the Applicant shall give prompt notice of that fact to the Secretary of State in writing so that he may (if he thinks fit) seek an appropriate remedy to prevent such disclosure and the relevant Applicant will take, and will ensure that its representatives take, such steps as the Secretary of State may reasonably require for that purpose and will keep the Secretary of State promptly and fully informed of all developments relating to such potential disclosure.

4.5 In the event that any Applicant or its representatives become compelled by law or by any supervisory or regulatory body to disclose any Secretary of State Information, the relevant Applicant will give full details of any proposed disclosure to the Secretary of State in advance of such disclosure and, subject to the proviso at the end of clause 4.4, such disclosure will be limited to the minimum amount of Secretary of State Information required to satisfy such disclosure obligation.

4.6 The undertakings in clause 4.3 shall not apply to any disclosure of Applicant Information by the Secretary of State:

4.6.1 to a Beneficiary, any Central Government Body, the European Commission, or any other stakeholding or governmental body for any proper purpose of the Secretary of State or of the relevant recipient body;

4.6.2 to Parliament and Parliamentary Committees or if required by any Parliamentary reporting requirement;

4.6.3 to the extent that the Secretary of State (acting reasonably) deems disclosure necessary or appropriate in the course of carrying out its public functions;

4.6.4 which is made pursuant to any applicable laws and regulations including, but not limited to, the Environmental Information Regulations 2004 and FOIA; or

4.6.5 which is made pursuant to the Government's Transparency Policies.

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5 FREEDOM OF INFORMATION AND THE TRANSPARENCY AGENDA

5.1 Each Applicant acknowledges and agrees that the Secretary of State is subject to the requirements of the FOIA and the Environmental Information Regulations 2004 and agrees that it shall assist and cooperate with the Secretary of State to enable the Secretary of State to comply with its Information disclosure obligations.

5.2 Each Applicant shall:

5.2.1 transfer to the Secretary of State all Requests for Information that it receives as soon as practicable and in any event within two Business Days of receiving a Request for Information;

5.2.2 provide the Secretary of State with a copy of all Information in its possession, or power in the form that the Secretary of State requires within five Business Days (or such other period as the Secretary of State may specify) of the Secretary of State's request; and

5.2.3 provide all necessary assistance as reasonably requested by the Secretary of State to enable the Secretary of State to respond to the Request for Information within the time for compliance set out in section 10 of the FOIA or regulation 5 of the Environmental Information Regulations 2004.

5.3 The Secretary of State shall be responsible for determining in his absolute discretion and notwithstanding any other provision in this Agreement or any other agreement whether any Information is exempt from disclosure in accordance with the provisions of the FOIA or the Environmental Information Regulations 2004.

5.4 In no event shall an Applicant respond directly to a Request for Information unless expressly authorised to do so by the Secretary of State.

5.5 Each Applicant acknowledges that (notwithstanding the provisions of this clause 4.6.1) the Secretary of State may, acting in accordance with the Department of Constitutional Affairs’ Code of Practice on the Discharge of the Functions of Public Authorities under Part 1 of the FOIA (“the Code”), be obliged under the FOIA, or the Environmental Information Regulations 2004 to disclose information concerning the Applicant or the Project:

5.5.1 in certain circumstances without consulting the Applicant; or

5.5.2 following consultation with the Applicant and having taken their views into account;

provided always that where clause 5.5.1 applies the Secretary of State shall, in accordance with any recommendations of the Code, take reasonable steps, where appropriate, to give the Applicant advanced notice, or failing that, to draw the disclosure to the Applicant's attention after any such disclosure.

6 PROHIBITED GIFTS

6.1 Each Applicant acknowledges and agrees that it is a criminal offence, punishable by imprisonment, to give or offer any gift of consideration whatsoever as an inducement or reward to any servant of a public body and that any such action will empower the Secretary of State to cancel any contract currently in force and may result in exclusion from the Contract Letting Process. Accordingly, each Applicant undertakes that it shall not, and shall procure that its Affiliates and representatives do not, at any time during the Contract Letting Process directly or indirectly without the prior written approval of the Secretary of State:

6.1.1 pay any sum to;

6.1.2 grant any concession or benefit to;

6.1.3 make any gift or consideration to or entertain; or

6.1.4 enter into any business relationship with, 6

any employee, servant, agent or representative of any Beneficiary or Alternative Applicant, or undertake to do so or indicate or offer to any person that it will or may do so.

6.2 The prohibitions in clause 6.1 do not prohibit any payments or other actions in the context of a pre-existing commercial relationship entirely independent of the subject matter of the Contract Letting Process.

6.3 Each Applicant further undertakes that it shall not, and shall procure that its Affiliates and representatives do not:

6.3.1 commit any offences under the Bribery Act 2010; or

6.3.2 defraud or attempt to defraud any employee, servant, agent or representative of any Beneficiary or Alternative Applicant.

6.4 Each Applicant warrants, represents and undertakes that in entering into this Agreement it has not breached the undertakings in clauses 6.1 and 6.3.

7 ANTI COLLUSION

7.1 Subject to clause 7.2, no Applicant shall, and each Applicant shall ensure that its representatives and Affiliates do not, at any time during the Contract Letting Process:

7.1.1 fix or adjust under or in accordance with any agreement or arrangement with any Third Party the amount of any payment proposed in connection with the possible entry into a contract in respect of the Project with the Applicant(s);

7.1.2 communicate to any person other than as expressly permitted by the terms of this Agreement the amount or approximate amount of any payment so proposed;

7.1.3 enter into any agreement or arrangement with any person that such person shall refrain from making any proposal in respect of the Project or that such person should amend or withdraw any such proposal once offered or vary the amount of any payment proposed or to be proposed in connection with any such proposal;

7.1.4 pay, give or offer to pay or give any sum of money or other valuable consideration directly or indirectly to any person for doing or having done or causing or having caused to be done in relation to any other proposal in respect of the Project any of the actions referred to at clauses 7.1.1 to 7.1.3 and 7.1.5; or

7.1.5 disclose to any person other than the Secretary of State and except as permitted by this Agreement the whole or any part or any details of their Letting Proposal.

7.2 The provisions of clause 7.1 shall not apply to the Applicant(s):

7.2.1 to the extent that any Applicant discloses the approximate amount of any payment proposed in connection with the Letting Proposal in confidence in order to obtain any insurance premium quotations required for the purposes of and in compliance with any written requirement of the Secretary of State;

7.2.2 to the extent that any Applicant discloses details of the Letting Proposal in confidence to any person to whom such disclosure is necessary in order to achieve the Agreed Purpose; and

7.2.3 to the extent agreed in writing by the Secretary of State.

8 PROBITY PRINCIPLES AND WORKING PRACTICES

8.1 This clause 8 applies to any Applicant that is already engaged in providing services to the Secretary of State in respect of the operation of the VCA and/or directly to the VCA (each such Applicant shall be referred to in this clause 8 and Schedule 3 as the "Relevant Applicant").

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8.2 Each Relevant Applicant acknowledges and agrees that a key issue in any procurement strategy is to ensure that it is conducted with due probity. In particular, it is imperative that any service provider who is already engaged in providing services to the Secretary of State in respect of the operation of the VCA and/or directly to the VCA is structured such that it does not undermine the ability of the Secretary of State to hold a fair competition.

8.3 Each Relevant Applicant further acknowledges and agrees that it is of importance that there is transparency in the engagement process, and suitable counter measures in place, to ensure that the Contract Letting Process is run on a basis that provides each bidder with an equality of treatment and opportunity to obtain real competition between the bidders.

8.4 Each Relevant Applicant agrees that it shall undertake the necessary steps to ensure a separation of those already providing services to the Secretary of State in respect of the operation of the VCA and/or directly to the VCA and its bidding team that will be engaged in the Contract Letting Process.

8.5 Each Relevant Applicant acknowledges and agrees that the Secretary of State needs to be suitably assured about how the arrangements referred to in clause 8.4 will operate and, to this end, the Secretary of State has developed a set of principles and working practices that it expects each Relevant Applicant to comply with. Accordingly, each Relevant Applicant agrees that it shall comply with the Probity Principles and Working Practices.

9 PUBLICITY

9.1 Each Applicant acknowledges that:

9.1.1 the Contract Letting Process is of national significance within the United Kingdom and is likely to attract public and media attention; and

9.1.2 such attention may have a materially adverse impact on the outcome of the Contract Letting Process.

9.2 Each Applicant accordingly agrees that they shall not, and shall ensure that their representatives and Affiliates do not, before the Award Date without the prior written consent of the Secretary of State in relation to the Contract Letting Process or the Letting Proposal:

9.2.1 issue any press notice or press release; or

9.2.2 give or publish any announcement or notice to its officers, employees or contractors, otherwise than to those with a direct interest in such matters.

10 CHANGES OF OWNERSHIP OF THE PROPOSED PARTNER

10.1 Where there is more than one Applicant entering into this Agreement, each Applicant shall ensure that no Change of Ownership, and no agreement, undertaking or other arrangement which will or may result in a Change of Ownership, takes effect or is entered into prior to the Award Date without the prior written consent of the Secretary of State. The occurrence of a Change of Ownership or entry into any such agreement, undertaking or arrangement by any persons before the Award Date without the prior written consent of the Secretary of State shall constitute a material breach of this Agreement.

10.2 The giving or withholding (as appropriate) of consent by the Secretary of State pursuant to clause 10.1 shall be at the sole discretion of the Secretary of State having regard to the EC Treaty principles of equal treatment and non-discrimination.

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11 NON-SOLICITATION AND CONTACTING SECRETARY OF STATE EMPLOYEES AND REPRESENTATIVES

Non-Solicitation

11.1 Subject to clause 11.3, from and including the date of this Agreement, no Applicant will before the date falling 6 months after the Award Date without the prior written consent of the Secretary of State solicit or endeavour to entice away any person employed or otherwise engaged by the Secretary of State, or any other person under contract to provide services to the Secretary of State in relation to automotive vehicle development testing or certification in the UK at the prevailing time.

11.2 Subject to clause 11.3, from and including the date of this Agreement, no Applicant will before the date falling 6 months after the Award Date attempt to contact or interview or solicit information from any employee of the Secretary of State without the express written consent of the Secretary of State (which may be given generally or specifically).

11.3 Clauses 11.1 and 11.2 do not prohibit recruitment pursuant to a response to a bona fide public advertisement of an employment vacancy.

Contacting Secretary of State employees and representatives

11.4 Each Applicant undertakes to the Secretary of State that it shall not approach, make contact or communicate with any agent, representative or employee of the Secretary of State or the VCA other than through the formal communication channels which have been put in place in respect of the Contract Letting Process as further detailed in the PQQ Documentation Suite. Any contact made by the Applicant(s) outside of the formal channels may result in the Applicant(s) being ejected from the Contract Letting Process.

12 REMEDIES

12.1 Each Applicant acknowledges and agrees that:

12.1.1 damages would not be an adequate remedy for any breach by an Applicant of the provisions of this Agreement;

12.1.2 without prejudice to all other remedies to which the Beneficiaries may be entitled as a matter of law, any Beneficiary shall be entitled to the remedies of injunction and specific performance and other equitable relief for any threatened or actual breach of the provisions of this Agreement; and

12.1.3 no proof of special damages shall be necessary for the enforcement of this Agreement.

12.2 A material breach of this Agreement shall render the Applicant(s) non-compliant with the Contract Letting Process. Accordingly, without prejudice to all other remedies and relief to which the Beneficiaries may be entitled, the Secretary of State may in the event of any material breach of this Agreement:

12.2.1 take such breach into account in evaluating any future application to participate in a contract letting process and any future tender on the part of any Applicant or any Affiliate;

12.2.2 eject the Applicants from the Contract Letting Process;

12.2.3 eject the Applicants, any Applicant and/or any Affiliate from any other contract letting process in which the relevant Applicant or Affiliate is involved; and/or

12.2.4 exclude the Applicants, any Applicant and/or any Affiliate from the pre-qualification stage of any future contract letting competition.

12.3 The Applicant(s) acknowledge(s) and agree(s) that, without limitation, any breach of its obligations under clauses 6 (Prohibited Gifts), 7 (Anti Collusion), 8 (Publicity) and 10 (Changes of Ownership) shall constitute a material breach of this Agreement.

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13 INTELLECTUAL PROPERTY

13.1 All Intellectual Property in the Secretary of State Information shall remain the property of the Secretary of State or his licensors. The disclosure by the Secretary of State to the Applicant(s) of Secretary of State Information does not imply or confer any licence or permission for the Applicant(s) to use such Secretary of State Information for any purpose other than the Agreed Purpose.

13.2 All Intellectual Property in the Applicant Information shall remain the property of the relevant Applicant or its licensors. The Secretary of State will not, without the prior consent of the relevant Applicant (such consent not to be unreasonably withheld or delayed), be entitled to use or authorise any other person to use the Intellectual Property in the Applicant Information except for the purposes of the Contract Letting Process. This clause 13.2 is without prejudice to any rights of the Secretary of State existing as at the date of this Agreement and any rights he may have in respect of any Contract(s), Project agreement or other agreement which may be entered into pursuant to the Contract Letting Process.

13.3 Each Applicant will, in good faith, consider with the Secretary of State any request by the Secretary of State for consent for the purposes of clause 13.2.

14 USE OF SECRETARY OF STATE INFORMATION

14.1 No Applicant shall use or retain Secretary of State Information for any purpose other than the Agreed Purpose.

14.2 The Parties acknowledge that:

14.2.1 any Applicant or any Affiliate may now or in the future be in a contractual or commercial relationship with the Secretary of State in relation to matters other than the Agreed Purpose; and

14.2.2 the disclosure of Secretary of State Information permitted under clauses 4.4 and 7.2 may result in the Applicant disclosing Secretary of State Information to Third Parties who are now or may in the future be in a contractual or commercial relationship with the Secretary of State in relation to matters other than the Agreed Purpose.

14.3 Each Applicant undertakes to ensure that:

14.3.1 they and any person to whom they disclose Secretary of State Information shall at all times use all Secretary of State Information so disclosed only for the Agreed Purpose and will limit the copying of the Secretary of State Information to the minimum necessary for their involvement in the Contract Letting Process;

14.3.2 only such persons as may be approved by the Secretary of State in writing from time to time shall be engaged in relation to the Agreed Purpose by the Applicant(s) or any person to whom the Applicant(s) disclose Secretary of State Information;

14.3.3 all Secretary of State Information shall be stored securely and separately from information not relating to the Agreed Purpose; and

14.3.4 work in relation to the Agreed Purpose undertaken by or on behalf of the Applicant(s) or any person to whom any Applicant discloses Secretary of State Information shall be kept distinct from activities other than such work,

and shall so ensure by all necessary means including the use of separate communications links, separate accommodation, secure storage of files and separate reporting arrangements. The Secretary of State (acting reasonably) will be entitled to audit compliance with this clause 14.3. Each Applicant shall provide the Secretary of State and his authorised representatives with such access to persons and information as they shall require in connection with any such audit.

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15 BENEFIT OF UNDERTAKINGS

Each Applicant acknowledges and agrees that the Secretary of State is entering into this Agreement for himself and for the benefit of each of the other Beneficiaries. The undertakings, acknowledgements, warranties and representations (whether or not expressed or described as such) made or given by the Applicant(s) in this Agreement:

15.1 are so made or given for the benefit of, and may be enforced by, the Secretary of State and each of the other Beneficiaries; and

15.2 may be so enforced against any Applicant, or any number of them, at the sole discretion of the Secretary of State or relevant Beneficiary.

16 RELATIONSHIP BETWEEN THE BENEFICIARIES AND EACH APPLICANT

Each Applicant acknowledges and agrees that neither the receipt of any Secretary of State Information nor any negotiation or discussion relating to the Letting Proposal or the Contract Letting Process constitutes the giving of investment advice by any Beneficiary or the creation of a customer relationship with any Beneficiary.

17 NO COLLATERAL CONTRACT

17.1 The Parties agree that save as expressly provided in this Agreement no contract or legal obligation shall result from any disclosure of information or other communication by the Secretary of State in connection with the Contract Letting Process, including the issue of any document which forms part of the PQQ Documentation Suite or invitation to tender, or from the reliance of any person on any information so disclosed or any such communication.

17.2 Each Applicant further acknowledges and agrees that no disclosure of information or other communication by the Secretary of State in connection with the Contract Letting Process will constitute an offer or an acceptance by or on behalf of any Beneficiary. The only contracts between the Parties or between any Beneficiary and any Affiliate which may come into existence pursuant to the Contract Letting Process are a duly executed written agreement on the face of which it is apparent that such agreement is intended by all parties thereto.

18 NO AGENCY

Each Applicant warrants and represents to the Secretary of State that each Applicant is acting as a principal on its own account and not as agent or broker for any other person(s) and that the Applicant(s) will be responsible for their costs incurred in connection with the Letting Proposal or the Contract Letting Process.

19 ENTIRE AGREEMENT

This Agreement, together with the other documents comprising the PQQ Documentation Suite, constitutes the entire agreement and understanding between the Parties in relation to the subject matter hereof and none of the Beneficiaries accepts any responsibility or liability (other than in respect of fraudulent misrepresentation) for, or makes any representation or warranty (express or implied) as to, the accuracy, reasonableness or completeness of any Secretary of State Information or any oral or other communication in connection with the Secretary of State Information, the Letting Proposal or the Contract Letting Process.

20 WAIVER AND INVALIDITY

20.1 No failure or delay by any Party in exercising any right, power or privilege under this Agreement shall constitute a waiver thereof nor shall any single or partial exercise

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thereof preclude further exercise thereof or the exercise of any other right, power or privilege hereunder or otherwise.

20.2 If any provision of this Agreement is prohibited or unenforceable in any jurisdiction in relation to any Party or Beneficiary such prohibition or unenforceability will not invalidate the remaining provisions of this Agreement or affect the validity or enforceability of the provisions of this Agreement in relation to any other Party or Beneficiary or any other jurisdiction.

21 ASSIGNMENT

No Applicant shall be entitled to assign any of its rights or obligations under this Agreement.

22 CONTRACTS (RIGHTS OF THIRD PARTIES) ACT 1999

22.1 Subject to clause 22.2, a person who is not a Party to this Agreement has no right under the Contract (Rights of Third Parties) Act 1999 (the “Third Parties Act”) to enforce any term of this Agreement (but this does not affect any right or remedy of a third party which exists or is available apart from the Third Parties Act).

22.2 Any Beneficiary who is not a party to this Agreement may enforce the terms of this Agreement expressed to be for the benefit of or given by the Applicant(s) to or in favour of such Beneficiary.

22.3 All terms of this Agreement may be varied, amended or otherwise released by an agreement between the Secretary of State and the Applicant(s) without reference to any Beneficiary.

23 PARTIAL INVALIDITY

If any provision of this Agreement is held to be void, illegal, invalid or unenforceable, in whole or in part, under any enactment or rule of law, such provision or part shall to that extent be deemed not to form part of this Agreement but the legality, validity and enforceability of the remainder of this Agreement shall not be affected.

24 FURTHER STEPS

Each Applicant will take such further steps as may be requested by the Secretary of State to ensure this Agreement takes full legal effect.

25 GOVERNING LAW AND JURISDICTION

This Agreement shall be governed by and construed in accordance with the laws of England and the Parties hereby irrevocably submit to the exclusive jurisdiction of the English courts.

AS WITNESS this Deed has been executed as a Deed by the Parties hereto and delivered on the

date stated at the beginning.

The corporate seal of the

Secretary of State for

Transport IS HEREUNTO

AFFIXED:

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Authenticated by authority of the

Secretary of State for Transport:

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[NOTE TO BIDDERS: In the case of an individual Applicant, the individual Applicant should

sign below. Where a PQQ Response is being submitted by a consortium, a copy of this

execution page must be used for each consortium member listed in Schedule 2 and each

such consortium member must sign a separate execution page. If the Applicant(s) is/are a

UK company(y)(ies), please use the execution block at the top of the page. If the relevant

Applicant(s) is/are not a UK company(y)(ies), please use the execution space below the red

line.]

EXECUTED AS A DEED for and

on behalf of:

[insert Applicant's name] by:

(1) DIRECTOR

(2) DIRECTOR/ SECRETARY

Note to Bidders: This document is a Deed. Where the Applicant is a UK company, it must be executed by two

representatives of the Applicant – one Director, and a second person who is either a Director or the Company Secretary.

You should not modify this execution block without written permission from the Secretary of State.

FOR AN APPLICANT WHICH IS NOT A UK COMPANY:

[Insert Applicant’s name]

EXECUTED AS A DEED:

Note to Bidders: Execution formalities vary between jurisdictions and types of legal entity. You should seek legal advice

on the words and procedure necessary for the relevant Applicant to execute a Deed in English law, and execute the

Agreement in the space above, as appropriate. The Secretary of State reserves the right to ask any Applicant to provide a

legal opinion in a form acceptable to the Secretary of State confirming that this Deed has been validly executed by any

Applicant.

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SCHEDULE 1

Definitions and Interpretation

In this Agreement:

“Affiliate” means any person who is:

(a) a subsidiary, subsidiary undertaking or holding company of any Applicant (any such

person a “relevant person”); or

(b) a subsidiary, subsidiary undertaking or holding company of a relevant person;

“Agreed Purpose” means the purpose of the Applicant(s) formulating a Letting Proposal and

entering into a negotiation, if selected so to do, with the Secretary of State in respect of the

Project;

"Agreement" means the provisions of this agreement, including the schedules;

“Alternative Applicant” means any person other than an Applicant participating in the Contract

Letting Process (whether individually or as part of a consortium) with a view to being selected to

become the Secretary of State's joint venture partner in respect of the Project and to operate the

Contract(s) and any person submitting or proposing to submit alternative proposals in respect of

the Project or in respect of the transfer to it of the Contract(s), or shares in an Applicant;

“Applicant Information” means all information of whatsoever nature whether oral, written or in

any other form disclosed by the relevant Applicant to the Secretary of State as part of or for the

purposes of the Letting Proposal or the Contract Letting Process, provided always that information

originating from the Secretary of State shall not constitute Applicant Information;

“Award Date” means the date on which the Secretary of State publicly announces the identity of

the contractor selected for the Project pursuant to the Contract Letting Process;

“Beneficiaries” means the Crown and the Secretary of State for Transport and their respective

representatives (and "Beneficiary" shall mean each of them);

“Business Day” means any day on which banks are open for general business in London;

Central Government Body” means a body listed in one of the following sub-categories of the

Central Government classification of the Public Sector Classification Guide, as published and

amended from time to time by the Office for National Statistics:

(a) Government Department;

(b) Non-Departmental Public Body or Assembly Sponsored Public Body (advisory, executive,

or tribunal);

(c) Non-Ministerial Department; or

(d) Executive Agency;

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“Change of Ownership” means (a) any person acquiring or ceasing to have any legal, beneficial

or equitable interest in any or all of the shares in the Proposed Partner [and/or [NOTE TO

BIDDERS: insert name of any holding company of the Proposed Partner established for the

purposes of the Contract Letting Process]] (including control over the exercise of voting rights

conferred on those shares, control over the right to appoint or remove directors and rights to

dividends) other than purchase or sale of a non-controlling interest in a publicly listed company; or

(b) where the Proposed Partner is not yet incorporated, any change in the proposed shareholding

or other shareholder arrangements in respect of the Proposed Partner;

“Confidential Information” means all information which is either Secretary of State Information or

Applicant Information (or both) (as appropriate);

“Contract(s)” shall have the meaning given to it in paragraph (b) to the Background of this

Agreement;

“Contract Letting Process” means the procedure (as varied from time to time) adopted by the

Secretary of State for the selection of a joint venture partner in respect of the Project, including the

submission of the PQQ and responses to the PQQ, tenders, participation in negotiation with the

Secretary of State, best and final offers (if required), and the negotiation and finalisation of a new

contract and any documents to be entered into under or in relation to the new contract;

“Data Room” means the data room or electronic data site established by or on behalf of the

Secretary of State for the purposes of the Contract Letting Process;

“Data Room Information” means information at any time deposited or contained in the Data

Room;

“FOIA” means the Freedom of Information Act 2000;

"Government's Transparency Policies" means the UK government's transparency policies as

set out in policy notes published by the Cabinet Office from time to time, including but not limited

to;

(a) PPN 17/10 "New guidance on implementing requirements for greater transparency in

central Government procurement and contracting" of 10 September 2010;

(b) PPN, Information Note 02/11 of 18 January 2011; and

(c) PPN, Information Note 07/11 of 3 October 2011.

“IDD” shall have the meaning given to it in paragraph (c) to the Background of this Agreement;

“Information” has the meaning given under section 84 of the FOIA;

“Intellectual Property” means trade marks, service marks, trade names, logos, get-up, patents,

inventions, registered and unregistered design rights, copyrights, semi-conductor topography

rights, database and all other similar proprietary rights and other intellectual property rights which

may subsist in any part of the world including, where such rights are obtained or enhanced by

registration, any registration of such rights and any applications and any rights to apply for such

registration;

“Letting Proposal” means the proposal submitted or to be submitted by the Applicant(s) to the

Secretary of State in respect of the Project including any response to the PQQ, tender submission

and best and final offer;

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“NewCo” shall have the meaning given to it in paragraph (b) of the Background to this Agreement;

“OJEU” shall have the meaning given to it in paragraph (c) to the Background of this Agreement;

“Parties” means the Secretary of State and the Applicant(s);

“PQQ” shall have the meaning given to it in paragraph (c) to the Background of this Agreement;

“PQQ Documentation Suite” shall have the meaning given to it in paragraph (c) to the

Background of this Agreement;

“PQQ Guidance Document” shall have the meaning given to it in paragraph (c) to the

Background of this Agreement;

"PQQ Response" means the Applicant('s)(s') response to the PQQ;

"Probity Principles and Working Practices" means the principles and practices set out in

Schedule 3 to this Agreement;

“Project” shall have the meaning given to it in paragraph (b) of the Background to this Agreement;

“Proposed Partner” means, where there is more than one Applicant signing this Agreement, the

entity (which may exist, or may be incorporated during the Contract Letting Process) that the

Applicants propose will hold a controlling interest in the joint venture entity set up by the Secretary

of State to deliver services currently delivered by VCA if the Applicants are selected to do so;

“Request for Information” means a request for information or an apparent request under the

Code of Practice on Access to Government Information, FOIA or the Environmental Information

Regulations 2004;

“Secretary of State Information” means:

(a) Data Room Information; and

(b) all other information of whatsoever nature whether oral, written or in any other form

(including the documentation forming part of the PQQ Documentation Suite and any

invitation to tender) disclosed by the Secretary of State to the Applicant(s) for the

purposes of or pursuant to the Contract Letting Process;

“Third Party” means any person who is not a Party and "Third Parties" shall be construed

accordingly;

“VCA” shall have the meaning given to it in paragraph (a) of the Background of this Agreement;

reference to the disclosure of information includes any communication or making available of

information and includes both direct and indirect disclosure;

reference to the disclosure of information, or provision of access, by or to the Secretary of State or

the Applicants or any Applicant includes disclosure, or provision of access, by or to the

representatives of the Secretary of State or the Applicant(s) (as the case may be);

reference to the representatives of any person includes the officers, directors, employees, advisers

and agents of that person and, where the context admits, providers or potential providers of

finance to the Applicant(s) or any Affiliate in connection with the Letting Proposal and the

representatives of such providers or potential providers of finance;

reference to persons includes legal and natural persons;

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reference to any enactment is to that enactment as amended, supplemented, re-enacted or

replaced from time to time;

reference to clauses and recitals is to clauses of and recitals to this Agreement;

reference to any gender includes any other;

reference to writing includes email;

the terms “associate”, “holding company”, “subsidiary”, “subsidiary undertaking” and “wholly owned

subsidiary” have the meanings attributed to them in the Companies Act 2006, except that:

(a) for the purposes of section 1159(1)(a) of that Act, the words ‘holds a majority of the voting

rights’ shall be changed to ‘holds 30% or more of the voting rights’, and other expressions

shall be construed accordingly; and

(b) a company shall be treated as a member of another company even if shares in that other

company are registered in the name of: (i) a person by way of security (where the

company has provided that security); or (ii) a person as nominee for the company;

the words “include” and “including” are to be construed without limitation;

the singular includes the plural and vice versa;

the notes to bidders shown in red are for the reference of Applicants while completing the

Agreement and shall have no contractual effect once the Agreement has been validly executed;

and

the headings contained in this Agreement shall not affect its construction or interpretation.

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SCHEDULE 2

The Applicant(s)

(1) [Insert name of Applicant 1], a [company] incorporated in [insert country of registration], whose registered office is at [insert registered address] and whose registered number is [insert registered number]; and

(2) [Insert name of Applicant 2, where applicable], a [company] incorporated in [insert country of registration], whose registered office is at [insert registered address] and whose registered number is [insert registered number] [; and]

NOTES TO BIDDERS:

You should complete this section by replacing the blue text in square brackets in each paragraph with the Applicants’ details. If there is one Applicant (ie If you are submitting a PQQ Response as a sole Applicant), please complete paragraph 1 and delete or cross through paragraph (2). If you are submitting a PQQ Response as a consortium, the details of each consortium member should be set out above and therefore please repeat paragraph 2 as many times as necessary.

If you have incorporated a single purpose entity for the purposes of your bid, then that entity (the Proposed Partner) should execute the agreement as well as all the members and shareholders of that single purpose vehicle.

If an Applicant is not a company, please replace the word ‘company’ with a description of the Applicant’s legal form. Where such an Applicant does not have a registered office, please replace the words ‘registered office’ with ‘principal place of business,’ and state the Applicant’s principal place of business.

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SCHEDULE 3

PROBITY PRINCIPLES AND WORKING PRACTICES

1. Introduction

1.1 The Secretary of State is committed to undertaking the award of public contracts consistent with the EC principles of transparency and fairness, and equal and non­discriminatory treatment of bidders as reflected in the Public Contracts Regulations 2006 (as amended).

1.2 These Probity Principles and Working Practices set out the specific working practices that the Secretary of State will implement and expect Relevant Applicants to comply with during the course of the Contract Letting Process to support compliance with these principles, in particular to ensure that all bidders are assured an equal competitive opportunity through provision of access to the same information regarding the Project throughout the Contract Letting Process.

1.3 It is a condition of participation in the Contract Letting Process that each Relevant Applicant complies with the specific responsibilities set out in paragraphs 3 and 4 of these Probity Principles and Working Practices. Failure to comply with these requirements may result in exclusion from the Contract Letting Process.

2. Secretary of State responsibility to ensure compliance

2.1 The Secretary of State shall:

2.1.1 appoint a single point of contact who shall manage the processes set out in this Schedule (the "SoS Probity Contact"), together with a central point of contact for the transfer of information between bidders as envisaged by this Schedule 3 (the "SoS Information Contact");

2.1.2 implement such other arrangements as are necessary to support the effective transfer of information between the Secretary of State and bidders as envisaged by this Schedule and, as appropriate, seek to obtain or facilitate the provision of information requested by a bidder from relevant sources and provide such information to bidders on a non-discriminatory basis; and

2.1.3 maintain a record of all documents and information provided to bidders in accordance with this Schedule.

2.2 The SoS Probity Contact shall notify the Secretary of State of any Relevant Applicant who fails to comply with these Probity Principles and Working Practices.

3. Relevant Applicants to share information

3.1 Each Relevant Applicant shall provide such information that is relevant to the Contract Letting Process regarding the services / activities (if any) that the Relevant Applicant provides to the Secretary of State in respect of the VCA and/or directly to the VCA, as may be reasonably requested by the Secretary of State from time to time and on the understanding that this information may be passed on by the Secretary of State, in full or in part, to facilitate an equal competition between bidders in relation to the Contract Letting Process.

3.2 Information requested pursuant to paragraph 3.1 must be provided by the Relevant Applicant in a standard electronic format (eg MS-Office application files) or via participation in meetings, workshops or similar at the discretion of the Secretary of State.

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3.3 For the avoidance of doubt, all requests for information made in accordance with paragraph 3.1, and any subsequent provision of information by the Relevant Applicant, shall be dealt with as between the Secretary of State and the Relevant Applicant's Operational Team and not its Bid Team (as such terms are defined in paragraph 4.2 below).

3.4 Each Relevant Applicant must treat all other bidders equally and must not discriminate against any other entity or individual during the Contract Letting Process in the context of requests for information made pursuant to these Probity Principles and Working Practices.

3.5 Relevant Applicants shall be aware that the provisions of the Freedom of Information Act 2000 ("Act") may apply to information that forms the subject matter of these Probity Principles and Working Practices and understand that the Act shall take precedence over any term of these Probity Principles and Working Practices that would prevent compulsory disclosure where prescribed by the Act. The Secretary of State acknowledges that pursuant to the Code of Practice on the Discharge of the Functions of Public Authorities under Part I of the Act, where it receives a request under the Act which relates to information whose disclosure may cause adverse impact on a Relevant Applicant, it is under a duty to (a) seek the views of the Relevant Applicant prior to making any disclosure, in particular to assist in determining whether the information falls within the exemptions at Section 41 or 43 under the Act and (b) take due account of any views of the Relevant Applicant when determining whether such information falls within the Section 41 or 43 exemptions and thereby whether disclosure of such information should occur under the Act.

4. Relevant Applicants to control flow of information

4.1 Where a Relevant Applicant or any sub-contractor or agent of a Relevant Applicant (the "Wider Bidder Organisation") is directly involved in the provision or management of services with the Secretary of State in respect of the VCA and/or directly with the VCA, the Relevant Applicant shall establish internal communications barriers providing separation between different teams within the Wider Bidder Organisation compliant with the procedures set out below.

4.2 Physical and Organisational Separation: there must be appropriate barriers and a clear and regulated communications procedure consistent with the principles in these Probity Principles and Working Practices between individuals in the Wider Bidder Organisation who are involved, directly or indirectly, in putting together a bid/proposal (the "Bid Team") and any individuals in the Wider Bidder Organisation who are directly involved in the provision or management of other services to the Secretary of State in respect of the VCA and/or directly to the VCA (the "Operational Team").

4.3 Communications between the Operational Team and the Bid Team: individuals in the Bid Team may consult with the Operational Team, however, the Relevant Applicant must promptly, and in any event within three Business Days, provide the SoS Information Contact with a copy (in a standard electronic format (eg MS-Office application files)) of any information provided (by any means including verbally) by the Operational Team to the Bid Team. The Secretary of State shall then review that information and may, at its sole discretion, and notwithstanding any other agreement between the Secretary of State and the Relevant Applicant (whether in these Probity Principles and Working Practices or otherwise), elect to make all or any part of that information available to other bidders.

4.4 Information Systems: any information held by the Wider Bidder Organisation in any form (including electronic) which relates to other services currently, previously, to be or potentially to be provided by the Wider Bidder Organisation to the Secretary of State in respect of the VCA and/or directly to the VCA shall not be made available to (or otherwise

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be accessible by) the Bid Team other than in accordance with the provisions of these Probity Principles and Working Practices.

4.5 Bidder Account Management Role: if a Relevant Applicant retains a team to manage its commercial relationship with the Secretary of State at corporate or at client group level (the "Account Management Team"), individuals in that Account Management Team shall be permitted to supervise the activities of the Bid Team and the Operational Team but shall only communicate information between those teams in strict accordance with these Probity Principles and Working Practices.

4.6 Bid Team Organisation: no single individual forming part of the Bid Team may concurrently perform any other role (full or part time) in the delivery or management of services to the Secretary of State in respect of the VCA and/or directly to the VCA (ie in an operational capacity). For the avoidance of doubt, this paragraph shall not prevent individuals within the Relevant Applicant's organisation from participating in more than one bid to the Secretary of State at any one time.

4.7 Compliance with these Probity Principles and Working Practices: each Relevant Applicant shall nominate one senior manager (the "Bidder Probity Manager") who shall be responsible for the Relevant Applicant's compliance with these Probity Principles and Working Practices. The Bidder Probity Manager shall discuss any difficulty in complying with this requirement with the SoS Probity Contact. Each Relevant Applicant must ensure that all individuals in the Wider Bidder Organisation engaged at any time in the provision or management of services to the Secretary of State in respect of the VCA and/or directly to the VCA (including the members of the Bidder Account Management Team, the Bid Team and the Operational Team) are appropriately briefed regarding these Probity Principles and Working Practices and agree to adhere strictly to these Probity Principles and Working Practices. Each Relevant Applicant shall be responsible and accountable for the adherence of the Wider Bidder Organisation to these Probity Principles and Working Practices.

5. Duration of these Probity Principles and Working Practices

These Probity Principles and Working Practices will be effective from the date of this Agreement and shall continue in force in respect of each Relevant Applicant until either the Relevant Applicant is removed or withdraws from the Contract Letting Process or the Secretary of State notifies the Relevant Applicant of the conclusion of the Contract Letting Process.

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