3.4.1 The key aspects of the Contractor's tender should be incorporated into the Contract schedules so as to ensure that the Contractor is bound to deliver the Project in accordance with its tender submission. However, the incorporation of the Contractor's tender submission in the Contract should not be interpreted as representing any form of approval by the Authority that the plan will satisfy the requirements of the output specification.51
3.4.2 The basic design proposal must be set out in the Contract and will be developed further by the Contractor after signature.52 The procedure for developing the design must also be specified in the Contract so that changes beyond the permitted parameters of further design development can be distinguished from permitted design developments. The Contract should also specify the extent (if at all) to which other minor changes53 may be made without triggering the change in Service mechanism (see Section 13 (Change in Service)).
3.4.3 Although the Contractor is responsible for the design development, the Authority knows its own service requirement and the means by which it has been delivered in the past and this should not be lost to the development process.54 Consultation with the Authority and subsequent adoption of any comment made by the Authority must, however, remain firmly at the Contractor's risk. The Contractor and its financiers should accept that it is not in the Authority's interests to watch without comment as a design is developed and implemented which it knows will not be able to deliver the Service. The procedure for submitting and commenting on design issues should be capable of giving all parties the reassurance they need.
3.4.4 The Contract should therefore set out a mechanism for:
• the Contractor to submit designs and information to the Authority and its representatives. Such designs should be in a package and format and submitted to a timetable to be agreed between the parties;
• the Contractor to submit minor design changes which do not have any impact on cost or the Service and which the Authority can accept without the change in Service mechanism having to be implemented (see Section 13 (Change in Service));
• the Authority to comment (if it wishes) on such submissions within an agreed time period55 (see Section 5.2 (Compensation Events)); and
• the discussion of and, if appropriate, adoption by the Contractor of any comments by the Authority.
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51 This can be achieved by setting out in the Contract that the output specification takes priority over the technical solution being provided by the Contractor. Under no circumstances should the output specification be amended to reflect the Contractor's solution.
52 Depending on the nature of the Contract, the Authority may also wish to include (amongst other things) the Contractor's operational procedures, key asset proposals or manpower and spares policies in the Contract.
53 Such changes will include, for example, changes which have no financial impact or which do not affect the pre-agreed risk allocation.
54 It may be acceptable for an Authority to accept a limited degree of design responsibility insofar as it relates solely to the ability of the Authority to carry out its functions in the project building.
55 Irrespective of the Authority's comments (if any) on the minor design changes submitted by the Contractor which do not have any impact on cost, level of fits out, quality of the scheme or the Service, the Contractor may choose to adopt such changes, albeit at its own risk, to ensure that it satisfies the Authority's service requirement.