Common use of Market Testing Procedure Clause in Contracts

Market Testing Procedure. If this Project Agreement requires Market Testing, the following procedure will apply: (a) at least three (3) months before each Market Testing Review Date the parties will meet together as often as may be necessary to consider to agree: (i) the number and identity of prospective tenderers that will be invited to prepare and submit tenders for the Testable Services in question provided that any prospective tenderer will possess an appropriate degree of skill, resources, reputation and financial standing relative to the provision of the Testable Services in question (and any dispute as to the selection of a prospective tenderer will be determined in accordance with the Dispute Resolution Procedure); (ii) the appropriate manner of advertising the Testable Services; (iii) the identity of members of the evaluation panel 50% of which may be comprised of Authority representatives; (iv) any changes to the Testable Services in question; and (v) the form and contents of the tender documents (which will include a Testable Services specification) relevant to the Services to be delivered to prospective tenderers (the “Testable Services Tender Documents”) which will be incorporated into an agreed document (the “Market Testing Procedure”). (b) If the parties are unable to agree any of the matters set out in the Market Testing Procedure either Party may refer the matter to the Dispute Resolution Procedure. (c) PPP Co. will manage the Market Testing tendering process in accordance with the Market Testing Procedure. (d) The evaluation panel will select the most economically advantageous tender based on the evaluation criteria agreed in the Market Testing Procedure and will not be obliged to accept the lowest tender. (e) Where the evaluation panel fails to agree which of the tenders is the most economically advantageous within thirty (30) Business Days following the expiry of the tender period, any dispute will be determined in accordance with the Dispute Resolution Procedure.

Market Testing Procedure. If this Project Agreement requires Market Testing, the following procedure will apply: (a) : at least three (3) months before each Market Testing Review Date the parties will meet together as often as may be necessary to consider to agree: (i) : the number and identity of prospective tenderers that will be invited to prepare and submit tenders for the Testable Services in question provided that any prospective tenderer will possess an appropriate degree of skill, resources, reputation and financial standing relative to the provision of the Testable Services in question (and any dispute as to the selection of a prospective tenderer will be determined in accordance with the Dispute Resolution Procedure); (ii) ; the appropriate manner of advertising the Testable Services; (iii) ; the identity of members of the evaluation panel 50% of which may be comprised of Authority representatives; (iv) ; any changes to the Testable Services in question; and (v) and the form and contents of the tender documents (which will include a Testable Services specification) relevant to the Services to be delivered to prospective tenderers (the “Testable Services Tender Documents”) which will be incorporated into an agreed document (the “Market Testing Procedure”). (b) . If the parties are unable to agree any of the matters set out in the Market Testing Procedure either Party may refer the matter to the Dispute Resolution Procedure. (c) . PPP Co. will manage the Market Testing tendering process in accordance with the Market Testing Procedure. (d) . The evaluation panel will select the most economically advantageous tender based on the evaluation criteria agreed in the Market Testing Procedure and will not be obliged to accept the lowest tender. (e) . Where the evaluation panel fails to agree which of the tenders is the most economically advantageous within thirty (30) Business Days following the expiry of the tender period, any dispute will be determined in accordance with the Dispute Resolution Procedure. PPP Co. will procure that O&M Co. appoints all tenderers selected in accordance with the Market Testing Procedure as its sub-contractors in respect of the relevant Testable Service(s) as soon as reasonably practicable having regard to: the terms of the contract with the current provider of the Testable Services; the terms of the contract applicable to the new provider of the relevant part or parts of the Testable Services; and any consultation or other timescales which have to be observed under the Transfer Regulations.

Market Testing Procedure. If Where in terms of Clause 28.3 of this Project Agreement requires Market TestingTesting is required, the following procedure will shall apply: (a) at 28.4.1 At least three (3) months 10 weeks before each Market Testing Review Date the parties will meet together as often as may be necessary to consider shall endeavour to agree: (i) 28.4.1.1 the number and identity of prospective tenderers that will be invited to prepare and submit tenders for the Testable Operational Services in question provided that any prospective tenderer will shall possess an appropriate degree of skill, resources, reputation and financial standing relative to the provision of the Testable Services in question (and any dispute as to the selection of a prospective tenderer will be determined in accordance with the Dispute Resolution Procedure); (ii) the appropriate manner of advertising the Testable Services; (iii) the identity of members of the evaluation panel 50% of which may be comprised of Authority representatives; (iv) any changes to the Testable Operational Services in question; and (v) 28.4.1.2 the form and contents of the tender documents (which will shall include a Testable the Operational Services specification) relevant to the Services Specification to be delivered to prospective tenderers tenderers) (the “Testable Services Tender Documents”) which will Any dispute as to the selection of a prospective tenderer or as to the Tender Documents shall be incorporated into an agreed document (determined in accordance with the “Dispute Resolution Procedure. 28.4.2 No later than 6 weeks before each Market Testing Procedure”)Review Date the Contractor shall prepare and deliver to the Authority a draft market testing proposal (Market Testing Proposal) describing in detail the Contractor’s proposed tenderers and the Tender Documents for each of the Operational Services in question, and the Market Testing Proposal shall incorporate all of the matters agreed by the parties and shall reflect the payment structure and other relevant provisions contained in this Agreement and shall include sufficient information relating to the transfer of any employees to enable prospective tenderers to assess the obligations to be assumed. (b) 28.4.3 If the parties are unable to agree any of the matters set out in the Market Testing Procedure either Party Proposal or if the Authority reasonably considers that the Contractor has made a material error or omission in the Market Testing Proposal the Authority may (subject to Clause 28.4.4) amend the provisions of the Market Testing Proposal to accord with the requirements of Procurement Rules, Guidance and Legislation at its sole discretion. 28.4.4 The Contractor may upon receiving any amendments made by the Authority in accordance with Clause 28.4.3 refer the matter to the Dispute Resolution Procedure. (c) PPP Co. will 28.4.5 The Contractor shall manage the Market Testing tendering process in accordance with the Market Testing ProcedureProposal agreed or determined in accordance with this Clause 28.4. (d) 28.4.6 The evaluation panel will Contractor shall bear all of its own costs, fees and expenses associated with the Market Testing. 28.4.7 The Contractor shall provide to the Authority as soon as reasonably practicable a copy of the Tender Documents and each response to the Tender Documents. 28.4.8 Subject to Clause 28.4.9 following the expiry of the tender period the Contractor shall determine following consultation with the Authority which tender to select, if any. 28.4.9 The Contractor shall select the most economically advantageous tender based on received in respect of the evaluation criteria agreed provision of the Operational Service, provided that nothing in this Clause 28.4.9 shall oblige the Market Testing Procedure and will not be obliged Contractor to accept the lowest tender. (e) Where the evaluation panel fails to agree which of the tenders is the most economically advantageous within thirty (30) Business Days following the expiry of the tender period, any 28.4.10 Any dispute will under Clause 28.4.9 shall be determined in accordance with the Dispute Resolution Procedure. 28.4.11 The Contractor shall procure that all tenderers selected in accordance with Clause 28.4.9 are appointed as sub-contractors to the FM Contractor. 28.4.12 The Authority shall have the right to object to the selection of a tenderer and such tenderer shall not be selected where the tenderer has committed a Prohibited Act. 28.4.13 Each Market Testing exercise shall be conducted on the basis that prospective tenderers shall submit tenders on the basis that they are required to make available (by virtue of TUPE or otherwise) employment to all employees of the then current service provider who are wholly or mainly assigned to performance of the relevant Operational Service on like terms and conditions of employment and will indemnify the employer of such employees in the terms set out in Clause 30.

Market Testing Procedure. If Where in terms of Clause 28.3 of this Project Agreement requires Market TestingTesting is required, the following procedure will shall apply: (a) at 28.4.1 At least three (3) months 10 weeks before each Market Testing Review Date the parties will meet together as often as may be necessary to consider shall endeavour to agree: (ia) the number and identity of prospective tenderers that will be invited to prepare and submit tenders for the Testable Services in question provided that any prospective tenderer will shall possess an appropriate degree of skill, resources, reputation and financial standing relative to the provision of the Testable Services in question (and any dispute as to the selection of a prospective tenderer will be determined in accordance with the Dispute Resolution Procedure); (ii) the appropriate manner of advertising the Testable Services; (iii) the identity of members of the evaluation panel 50% of which may be comprised of Authority representatives; (iv) any changes to the Testable Services in question; and (vb) the form and contents of the tender documents (which will shall include a Testable Services specification) relevant to the Services Specification to be delivered to prospective tenderers tenderers) (the “Testable Services Tender Documents”) which will Any dispute as to the selection of a prospective tenderer or as to the Tender Documents shall be incorporated into an agreed document determined in accordance with the Dispute Resolution Procedure. 28.4.2 No later than 6 weeks before each Market Testing Review Date the Contractor shall prepare and deliver to the Authority a draft market testing proposal (the “Market Testing ProcedureProposal”)) describing in detail the Contractor’s proposed tenderers and the Tender Documents for each of the Services in question, and the Market Testing Proposal shall incorporate all of the matters agreed by the parties and shall reflect the payment structure and other relevant provisions contained in this Agreement and shall include sufficient information relating to the transfer of any employees to enable prospective tenderers to assess the obligations to be assumed. (b) 28.4.3 If the parties are unable to agree any of the matters set out in the Market Testing Procedure either Party Proposal or if the Authority reasonably considers that the Contractor has made a material error or omission in the Market Testing Proposal the Authority may (subject to Clause 28.4.4) amend the provisions of the Market Testing Proposal to accord with the requirements of Procurement Rules, Guidance and Legislation at its sole discretion. 28.4.4 The Contractor may upon receiving any amendments made by the Authority in accordance with Clause 28.4.3 refer the matter to the Dispute Resolution Procedure. (c) PPP Co. will 28.4.5 The Contractor shall manage the Market Testing tendering process in accordance with the Market Testing ProcedureProposal agreed or determined in accordance with this Clause 28.4. 28.4.6 The Contractor shall bear all of its own costs, fees and expenses associated with the Market Testing. 28.4.7 The Contractor shall provide to the Authority as soon as reasonably practicable a copy of the Tender Documents and each response to the Tender Documents. 28.4.8 Subject to Clause 28.4.9, following the expiry of the tender period the Contractor shall determine following consultation with the Authority which tender to select, if any, in respect of each of the relevant Services. 28.4.9 The Contractor shall select: (da) The evaluation panel will select in respect of tenders for the provision of an individual Service, the most economically advantageous tender based on received in respect of the evaluation criteria agreed provision of that Service; and (b) in respect of tenders for the Market Testing Procedure and will not be obliged provision of more than one of the Services, the most economically advantageous tender in respect of the provision of those Services; provided that nothing in this Clause 28.4.9 shall oblige the Contractor to accept the lowest tender. (e) Where the evaluation panel fails to agree which of the tenders is the most economically advantageous within thirty (30) Business Days following the expiry of the tender period, any 28.4.10 Any dispute will under Clause 28.4.9 shall be determined in accordance with the Dispute Resolution Procedure. 28.4.11 The Contractor shall procure that all tenderers selected in accordance with Clause 28.4.9 are appointed as sub-contractors to the FM Contractor in respect of the relevant Services. 28.4.12 The Authority shall have the right to object to the selection of a tenderer and such tenderer shall not be selected where the tenderer has committed a Prohibited Act.

Market Testing Procedure. If Where this Project Agreement requires Market Testingmarket testing, the following procedure will shall apply: (a) 28.4.1 at least three (3) months 10 weeks before each Market Testing Review Date the parties will meet together as often as may be necessary to consider shall endeavour to agree: (iA) the number and identity of prospective tenderers that will be invited to prepare and submit tenders for the Testable Service or Services in question provided that any prospective tenderer will shall possess an appropriate degree of skill, resources, reputation and financial standing relative to the provision of the Testable Services in question (and any dispute as to the selection of a prospective tenderer will shall be determined in accordance with the Dispute Resolution Procedure); (ii) the appropriate manner of advertising the Testable Services; (iii) the identity of members of the evaluation panel 50% of which may be comprised of Authority representatives; (iv) any changes to the Testable Services in question; and (vB) the form and contents of the tender documents (which will shall include a Testable Services specificationthe Output Specification) relevant to the Services to be delivered to prospective tenderers (“the “Testable Services Tender Documents”) which will be incorporated into an agreed document (the “Market Testing Procedure”). 28.4.2 No later than 6 weeks before each Market Testing Review Date the Contractor shall prepare and deliver to the Authority a draft market testing proposal (b“the Market Testing Proposal”) describing in detail the Contractor’s proposed tenderers and the Tender Documents for each of the Services in question, and the Market Testing Proposal shall incorporate all of the matters agreed by the parties and shall reflect the payment structure contained in this Agreement. 28.4.3 If the parties are unable to agree any of the matters set out in the Market Testing Procedure either Party Proposal or if the Authority reasonably considers that the Contractor has made a material error or omission in the Market Testing Proposal the Authority may (subject to clause [ ]) amend the provisions of the Market Testing Proposal to accord with statutory and government requirements at its sole discretion. 28.4.4 The Contractor may upon receiving any amendments made by the Authority in accordance with clause 28.4.3 refer the matter to the Dispute Resolution Procedure. (c) PPP Co. will 28.4.5 The Contractor shall manage the Market Testing tendering process in accordance with the Market Testing Proposal agreed or determined in accordance with this clause Market Testing Procedure. 28.4.6 The Contractor shall bear all of its own costs, fees and expenses associated with the Market Testing. 28.4.7 The Contractor shall provide to the Authority as soon as reasonably practicable of a copy of the tender documentation and each response to the tender documentation. 28.4.8 Subject to clause [ ] following the expiry of the tender period the Contractor shall determine following consultation with the Authority which tender to select, if any, in respect of each relevant Service. 28.4.9 The Contractor shall select: (dA) The evaluation panel will select in respect of tenders for the provision of an individual Service, the most economically advantageous tender based on received in respect of the evaluation criteria agreed provision of that Service; and (B) in respect of tenders for the Market Testing Procedure and will not be obliged provision of more than one Service, the most economically advantageous tender in respect of the provision of those Services (C) provided that nothing in this clause shall oblige the Contractor to accept the lowest tender. (e) Where the evaluation panel fails to agree which of the tenders is the most economically advantageous within thirty (30) Business Days following the expiry of the tender period, any 28.4.10 Any dispute will under clause 28.4.8 shall be determined in accordance with the Dispute Resolution Procedure. 28.4.11 The Contractor shall procure that it appoints all tenderers selected in accordance with clauses 28.4.6 and 28.4.8 as sub-contractors in respect of the relevant Service or Services. 28.4.12 The Authority shall have the right to object to the selection of a tenderer and such tenderer shall not be selected where the tenderer has committed a Prohibited Act.

Market Testing Procedure. If this Project Agreement requires market testing, PPP Co. and the Authority will agree and select an independent third party (the “Market Testing, Tester”) to carry out the market testing process on behalf of PPP Co. and (subject to Clause 26.7 (Costs)) at PPP Co.’s cost and the following procedure will apply: (a) at At least three two (32) months and ten (10) Business Days before each Market Testing Review Date the parties Parties and the Market Tester will meet together as often as may be necessary to consider to agree: (i) the number and identity of prospective tenderers that will be invited to prepare and submit tenders for the relevant Testable Services in question provided that any prospective tenderer will possess an appropriate degree of skill, resources, reputation and financial standing relative to the provision of the relevant Testable Services in question (and any dispute as to the selection of a prospective tenderer will be determined in accordance with the Dispute Resolution Procedure); (ii) the appropriate manner of advertising the Testable Services; (iii) the identity of members of the Authority representatives on the evaluation panel (who may comprise up to fifty per cent (50% %) of which may be comprised of Authority representativesall members on the evaluation panel); (iv) any changes to the relevant Testable Services in questionServices; and (v) the form and contents of the tender documents (which will include a Testable Services specification) relevant to the Services to be delivered to prospective tenderers (the “Testable Services Tender Documents”) which will be incorporated into an agreed document (the “Market Testing Procedure”). (b) If the parties Parties and the Market Tester are unable to agree any of the matters set out in the Market Testing Procedure either Party may refer the matter to the Dispute Resolution Procedure. (c) PPP Co. The Market Tester will manage the Market Testing market testing tendering process in accordance with the Market Testing Procedure. (d) The evaluation panel will select the most economically advantageous tender based on the evaluation criteria agreed in the Market Testing Procedure and will not be obliged to accept the lowest tender. (e) Where the evaluation panel fails and the Market Tester fail to agree which of the tenders is the most economically advantageous within thirty (30) Business Days following the expiry of the tender period, any dispute will be determined in accordance with the Dispute Resolution Procedure. (f) PPP Co. will appoint all tenderers selected in accordance with the Market Testing Procedure as its sub-contractors, or procure the appointment of all such tenderers as sub-contractors of Services Co. in respect of the relevant Testable Service(s) as soon as reasonably practicable having regard to: (i) the terms of the contract with the current provider of the Testable Services; (ii) the terms of the contract applicable to the new provider of the relevant part or parts of the Testable Services; and (iii) any consultation or other timescales which have to be observed under the Transfer Regulations.