Depending on the nature of the site (i.e. whether the site is a High Risk Site or a Low Risk Site) and on value for money considerations (for example, possible cost sharing of the site investigations between government and the bidders):
(a) Government will usually appoint independent consultants to undertake due diligence on the proposed site and relevant Site Conditions and to prepare a site assessment report.
(b) Government may provide such reports to the private party. However, this will be conditional on the private party acknowledging that the report has been provided by government for information purposes only and releasing government from any liability arising from the private party's receipt and future use of the report.
(c) Government will make every attempt to ensure that the report is appropriately detailed and informative in documenting the nature and levels of site risk and will, where possible, arrange for the private party to have rights directly against the site assessment report provider in respect of those reports.11
(d) Government will not itself warrant the accuracy or completeness of the report and will disclaim making any representation based on the report.
(e) The private party will also be given the opportunity to undertake its own due diligence as to site suitability. Government will co-operate with the private party and endeavour to give such access to the site as is reasonable and necessary for the carrying out of any additional assessment.
(f) Where independent site assessment is possible by the private party, it will be required to acknowledge that it has had an opportunity to conduct its own investigations and assessments and that it has acted in reliance on its own assessment.
(g) Any rights in a government due diligence report that have been secured for the private party will be exercisable outside the project agreement as against the independent consultant and will not alter the acknowledgments as between government and the private party.
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11 This can be done by assigning the warranties provided by the independent consultants in respect of the report (to this end, government will seek to ensure that any consultancy agreement with the independent consultant contains warranties in respect of the report and that government has the right to assign those warranties) or by arranging for the private party to have direct legal rights against the independent consultant (for example, by novation of the consultancy agreement or the creation of a new legal relationship).