(a) hubco must obtain the approval of the Relevant Participant(s) in each case for:
(i) (subject to the provisions of paragraph 5.2.1(b) (Grouping of Services)) any grouping or groupings of Market Tested Elements or any division of any Market Tested Element into separate parts which will optimise the opportunity for the Participants to obtain best value for money;
(ii) the appropriate media for advertising the Market Tested Elements and identifying the Prospective Tenderers (who should be wider than the supply chain to be maintained from time to time pursuant to paragraph 1.2 of Section 1 (Specification) of Schedule Part 3 (Partnering Services));
(iii) the basis on which the Tenderers shall be selected by hubco from among the Prospective Tenderers;
(iv) the Tender Requirements (which shall be in sufficient detail to allow the party carrying out the Market Test to determine the Preferred Tenderer) and shall include, without limitation:
(1) a statement of the Tender Validity Period;
(2) requirements in respect of the possible grouping or groupings of Market Tested Elements and any division of any Market Tested Element into separate parts;
(3) details of the tender evaluation criteria, which shall:
(A) reflect the tender evaluation methodology contained in Appendix 1 to this Schedule Part 6 (New Project Pricing Report); and
(B) be objective and impartial and must require Tenderers to demonstrate how they would conduct themselves as part of hubco's supply chain to ensure that the principles and objectives contained in Clause 2 (Purpose and Conduct of the Parties) were achieved;
(4) save where decided to the contrary by the Relevant Participant(s) (in their absolute discretion), a statement that Tenderers shall (where the Transfer Regulations do not otherwise apply) be required to offer employment to all employees who may qualify as Relevant Employees on terms and conditions as favourable as those they enjoy with their employer at the point of transfer;
(5) the TUPE Information (the Relevant Participant(s) shall procure that, in respect of any Market Testing, the employer of the Relevant Employees provides information for inclusion in the Tender Requirements to allow the consequences of the Transfer Regulations or compliance with the requirements relating to employees referred to in paragraph (4) to be assessed);
(6) the form of contract which the Preferred Tenderer will be required to accept, which shall reflect the principles set out in Clause 2 (Purpose and Conduct of the Parties) and the other requirements of this Agreement; and
(7) the information Tenderers are required to provide,
unless the Relevant Participant(s) otherwise agree in writing.
(b) Unless hubco can demonstrate to the Relevant Participant(s) that it will optimise its ability to obtain best value for money for the Relevant Participant(s) if Market Tested Elements are tendered separately or in particular groupings, or if any Market Tested Element is divided into separate parts, the grouping of any Market Tested Elements shall be left to the discretion of Tenderers on the basis that the Tender Requirements shall specify that:
(i) Tenderers may submit tenders for all or any of the Market Tested Elements; and
(ii) where a Tenderer submits a tender for a group or groups of Market Tested Elements, it may be required to provide all or any of the services in such group or groups and shall, in any event, provide separate pricing for each service in such group or groups.
(c) Where the context of the Market Test so permits, where hubco is the party carrying out Market Testing and considers it appropriate to do so, it may adopt a two stage process for Market Testing the Market Tested Elements by:
(i) first Market Testing the design element of a New Project and appointing a Preferred Tenderer;
(ii) requiring the Preferred Tenderer selected under sub-paragraph (a) to prepare the necessary designs and specifications (including facilities management, construction and other relevant works and services) in conjunction with hubco for the New Project(s) which would then become the relevant Tender Requirements; and
(iii) based on the Tender Requirements referred to in sub-paragraph (b), Market Test those Tender Requirements and select one or more Preferred Tenderer(s) in accordance with the provisions of this paragraph 5.
(d) The Tender Requirements and form of contract approved by the Relevant Participant(s) shall be used for the Market Testing.