Common use of Market Testing Procedure Clause in Contracts

Market Testing Procedure. Where in terms of Clause 28.3 of this Agreement Market Testing is required, the following procedure shall apply: 28.4.1 At least 10 weeks before each Market Testing Review Date the parties shall endeavour to agree: (a) the number and identity of prospective tenderers that will be invited to prepare and submit tenders for the Services in question provided that any prospective tenderer shall possess an appropriate degree of skill, resources, reputation and financial standing relative to the provision of the Services in question; and (b) the form and contents of the tender documents (which shall include the Services Specification to be delivered to prospective tenderers) (“Tender Documents”) Any dispute as to the selection of a prospective tenderer or as to the Tender Documents shall be 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 (“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 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. 28.4.3 If the parties are unable to agree any of the matters set out in the Market Testing 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. 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 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: (a) in respect of tenders for the provision of an individual Service, the most economically advantageous tender received in respect of the provision of that Service; and (b) in respect of tenders for the 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. 28.4.10 Any dispute 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. Where in terms of Clause 28.3 of this Agreement Market Testing is requiredrequires market testing, the following procedure shall apply: 28.4.1 At at least 10 weeks before each Market Testing Review Date the parties shall endeavour to agree: (aA) the number and identity of prospective tenderers that will be invited to prepare and submit tenders for the Service or Services in question provided that any prospective tenderer shall possess an appropriate degree of skill, resources, reputation and financial standing relative to the provision of the Services in questionquestion (and any dispute as to the selection of a prospective tenderer shall be determined in accordance with the Dispute Resolution Procedure); and (bB) the form and contents of the tender documents (which shall include the Services Specification Output Specification) to be delivered to prospective tenderers) (tenderers “the Tender Documents”) Any dispute as to the selection of a prospective tenderer or as to the Tender Documents shall be 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 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 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 assumedAgreement. 28.4.3 If the parties are unable to agree any of the matters set out in the Market Testing 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 28.4.4clause [ ]) amend the provisions of the Market Testing Proposal to accord with the statutory and government 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 clause 28.4.3 refer the matter to the Dispute Resolution Procedure. 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 28.4clause 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 Documents tender documentation and each response to the Tender Documentstender documentation. 28.4.8 Subject to Clause 28.4.9, 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 of the relevant ServicesService. 28.4.9 The Contractor shall select: (aA) in respect of tenders for the provision of an individual Service, the most economically advantageous tender received in respect of the provision of that Service; and (bB) in respect of tenders for the provision of more than one of the ServicesService, the most economically advantageous tender in respect of the provision of those Services; (C) provided that nothing in this Clause 28.4.9 clause shall oblige the Contractor to accept the lowest tender. 28.4.10 Any dispute under Clause 28.4.9 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 Clause 28.4.9 are appointed clauses 28.4.6 and 28.4.8 as sub-contractors to the FM Contractor 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. Where in terms of Clause 28.3 of If this Project Agreement requires Market Testing is requiredTesting, the following procedure shall will apply: 28.4.1 At : at least 10 weeks three (3) months before each Market Testing Review Date the parties shall endeavour will meet together as often as may be necessary to consider to agree: (a) : 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 shall 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); the appropriate manner of advertising the Testable Services; the identity of members of the evaluation panel 50% of which may be comprised of Authority representatives; any changes to the Testable Services in question; and (b) and the form and contents of the tender documents (which shall will include a Testable Services specification) relevant to the Services Specification to be delivered to prospective tenderers) tenderers (the “Testable Services Tender Documents”) Any dispute as to which will be incorporated into an agreed document (the selection of a prospective tenderer or as to the Tender Documents shall be 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 (“Market Testing ProposalProcedure”) 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. 28.4.3 ). If the parties are unable to agree any of the matters set out in the Market Testing Proposal or if the Authority reasonably considers that the Contractor has made a material error or omission in the Market Testing Proposal the Authority Procedure either Party 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. 28.4.5 The Contractor shall . PPP Co. will manage the Market Testing tendering process in accordance with the Market Testing Proposal Procedure. The evaluation panel will select the most economically advantageous tender based on the evaluation criteria 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 Testing Procedure and will not be obliged to accept the Authority as soon as reasonably practicable a copy lowest tender. Where the evaluation panel fails to agree which of the Tender Documents and each response to tenders is the Tender Documents. 28.4.8 Subject to Clause 28.4.9, most economically advantageous within thirty (30) Business Days following the expiry of the tender period the Contractor shall determine following consultation with the Authority which tender to selectperiod, if any, in respect of each of the relevant Services. 28.4.9 The Contractor shall select: (a) in respect of tenders for the provision of an individual Service, the most economically advantageous tender received in respect of the provision of that Service; and (b) in respect of tenders for the 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. 28.4.10 Any any dispute under Clause 28.4.9 shall will be determined in accordance with the Dispute Resolution Procedure. 28.4.11 The Contractor shall . PPP Co. will procure that O&M Co. appoints all tenderers selected in accordance with Clause 28.4.9 are appointed the Market Testing Procedure as its sub-contractors to the FM Contractor 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. 28.4.12 The Authority shall have ; the right to object terms of the contract applicable to the selection new provider of a tenderer the relevant part or parts of the Testable Services; and such tenderer shall not any consultation or other timescales which have to be selected where observed under the tenderer has committed a Prohibited ActTransfer Regulations.

Market Testing Procedure. Where in terms of Clause 28.3 of If this Project Agreement requires Market Testing is requiredTesting, the following procedure shall will apply: 28.4.1 At (a) at least 10 weeks three (3) months before each Market Testing Review Date the parties shall endeavour will meet together as often as may be necessary to consider to agree: (ai) 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 shall 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 (bv) the form and contents of the tender documents (which shall will include a Testable Services specification) relevant to the Services Specification to be delivered to prospective tenderers) tenderers (the “Testable Services Tender Documents”) Any dispute as to which will be incorporated into an agreed document (the selection of a prospective tenderer or as to the Tender Documents shall be 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 (“Market Testing ProposalProcedure”) 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). 28.4.3 (b) If the parties are unable to agree any of the matters set out in the Market Testing Proposal or if the Authority reasonably considers that the Contractor has made a material error or omission in the Market Testing Proposal the Authority Procedure either Party 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. 28.4.5 The Contractor shall (c) PPP Co. will manage the Market Testing tendering process in accordance with the Market Testing Proposal agreed or determined in accordance with this Clause 28.4Procedure. 28.4.6 (d) 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: (a) in respect of tenders for the provision of an individual Service, evaluation panel will select the most economically advantageous tender received based on the evaluation criteria agreed in respect of the provision of that Service; and (b) in respect of tenders for the 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 Market Testing Procedure and will not be obliged to accept the lowest tender. 28.4.10 Any (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 under Clause 28.4.9 shall will 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. Where in terms If this Project Agreement requires market testing, PPP Co. and the Authority will agree and select an independent third party (the “Market Tester”) to carry out the market testing process on behalf of PPP Co. and (subject to Clause 28.3 of this Agreement Market Testing is required, 26.7 (Costs)) at PPP Co.’s cost and the following procedure shall will apply: 28.4.1 (a) At least 10 weeks two (2) months and ten (10) Business Days before each Market Testing Review Date the parties shall endeavour Parties and the Market Tester will meet together as often as may be necessary to agree: (ai) 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 shall will possess an appropriate degree of skill, resources, reputation and financial standing relative to the provision of the relevant Testable Services (and any dispute as to the selection of a prospective tenderer will be determined in questionaccordance with the Dispute Resolution Procedure); (ii) the appropriate manner of advertising the Testable Services; (iii) the identity of the Authority representatives on the evaluation panel (who may comprise up to fifty per cent (50%) of all members on the evaluation panel); (iv) any changes to the relevant Testable Services; and (bv) the form and contents of the tender documents (which shall will include a Testable Services specification) relevant to the Services Specification to be delivered to prospective tenderers) tenderers which will be incorporated into an agreed document (“Tender Documents”) Any dispute as to the selection of a prospective tenderer or as to the Tender Documents shall be 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 (“Market Testing ProposalProcedure”). (b) describing in detail If the Contractor’s proposed tenderers and the Tender Documents for each of the Services in question, Parties 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. 28.4.3 If the parties Tester are unable to agree any of the matters set out in the Market Testing Proposal or if the Authority reasonably considers that the Contractor has made a material error or omission in the Market Testing Proposal the Authority Procedure either Party 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. 28.4.5 (c) The Contractor shall Market Tester will manage the Market Testing market testing tendering process in accordance with the Market Testing Proposal agreed or determined in accordance with this Clause 28.4Procedure. 28.4.6 (d) 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: (a) in respect of tenders for the provision of an individual Service, evaluation panel will select the most economically advantageous tender received based on the evaluation criteria agreed in respect of the provision of that Service; and (b) in respect of tenders for the 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 Market Testing Procedure and will not be obliged to accept the lowest tender. 28.4.10 Any (e) Where the evaluation panel 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 under Clause 28.4.9 shall will be determined in accordance with the Dispute Resolution Procedure. 28.4.11 The Contractor shall procure that (f) PPP Co. will appoint all tenderers selected in accordance with Clause 28.4.9 are appointed the Market Testing Procedure as its sub-contractors, or procure the appointment of all such tenderers as sub-contractors to the FM Contractor 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.; 28.4.12 The Authority shall have (ii) the right to object terms of the contract applicable to the selection new provider of a tenderer and such tenderer shall not the relevant part or parts of the Testable Services; and (iii) any consultation or other timescales which have to be selected where observed under the tenderer has committed a Prohibited ActTransfer Regulations.

Market Testing Procedure. Where in terms of Clause 28.3 of this Agreement Market Testing is required, the following procedure shall apply: 28.4.1 At least 10 weeks before each Market Testing Review Date the parties shall endeavour to agree: (a) 28.4.1.1 the number and identity of prospective tenderers that will be invited to prepare and submit tenders for the Operational Services in question provided that any prospective tenderer shall possess an appropriate degree of skill, resources, reputation and financial standing relative to the provision of the Operational Services in question; and (b) 28.4.1.2 the form and contents of the tender documents (which shall include the Operational Services Specification to be delivered to prospective tenderers) (“Tender Documents”) Any dispute as to the selection of a prospective tenderer or as to the Tender Documents shall be 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 (“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. 28.4.3 If the parties are unable to agree any of the matters set out in the Market Testing 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. 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 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, 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: (a) in respect of tenders for the provision of an individual Service, select the most economically advantageous tender received in respect of the provision of that the Operational Service; and (b) in respect of tenders for the 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. 28.4.10 Any dispute 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 ServicesContractor. 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.