The expression "raise comments" in this paragraph shall be construed to mean "raise comments or make objections" unless the contrary appears from the context. The Board's Representative may raise comments in relation to any Submitted Item on the grounds set out in paragraph 2 (further information) above or on the ground that the Submitted Item would (on the balance of probabilities) breach any Law but otherwise may raise comments in relation to a Submitted Item only as follows:
(a) in relation to any Submitted Item if:
(i) Project Co's ability to perform its obligations under this Agreement would (on the balance of probabilities) be adversely affected by the implementation of the Submitted Item; or
(ii) the implementation of the Submitted Item would (on the balance of probabilities) adversely affect any right of the Board under this Agreement or its ability to enforce any such right;
(b) in relation to any Submitted Item submitted pursuant to Clause 4.1 (Changes to Project Documents) if:
(i) the Board's ability to perform its obligations under the Agreement would be adversely affected by the proposed course of action;
(ii) the Board's ability to provide the Clinical Services or to carry out any of its statutory functions would (on the balance of probabilities) be adversely affected by the proposed course of action;
(iii) the proposed course of action would be likely to result in an increase to the Board's liabilities or potential or contingent liabilities under the Agreement;
(iv) the proposed course of action would adversely affect any right of the Board under the Agreement or its ability to enforce any such right; or
(v) Project Co's ability to perform its obligations under the Agreement would be materially adversely affected by the proposed course of action;
(c) in relation to Reviewable Design Data submitted pursuant to Clause 17.7(a) (Design Construction and Commissioning Process):
(i) which does not comprise 1:50 scale Room Layout Drawings the Board's Representative may raise comments, subject to and in accordance with paragraph 4 (Effect of Review) on the ground that the Submitted Item is not in accordance with:
(aa) the Board's Construction Requirements; and/or
(bb) Project Co's Proposals;
(ii) which comprises a 1:50 scale Room Layout Drawing in respect of which there is a corresponding generic 1:50 scale Room Layout Drawing for the relevant room type (which has previously been reviewed and commented upon by the Board's Representative in accordance with this Part 10 of the Schedule), the Board's Representative may raise comments, subject to and in accordance with paragraph 4 (Effect of Review), on the ground that the Submitted Item does not conform to the generic 1:50 scale Room Layout Drawing; and
(iii) which comprises a 1:50 scale Room Layout Drawing in respect of which there is no corresponding generic 1:50 scale Room Layout Drawing for the relevant room type (which has previously been reviewed and commented upon by the Board's Representative in accordance with this Part of the Schedule), the Board's Representative may raise comments, subject to and in accordance with paragraph 4 (Effect of Review), on the grounds that the Submitted Item:
(aa) is not in accordance with the Board's Construction Requirements and/or Project Co's Proposals; or
(bb) is inconsistent with the guidance contained in any current NHS Requirement which is applicable to a room of that function provided that such guidance has not been superseded by and is not inconsistent with any other provisions of the Board's Construction Requirements (including any existing Approved RDD Item);
(d) in relation to Finishes:
(i) which have the effect of making a selection from the Range of Finishes (or any alternative range or selection of Finishes submitted by Project Co to the Board's Representative) pursuant to Clause 17.7(a) (Design Construction and Commissioning Process); or
(ii) where the Submitted Item does not comply with the relevant provisions of the Board's Construction Requirements and/or Project Co's Proposals;
(e) in relation to the submission of any revised Programme pursuant to Clause 19 (Programme and Dates for Completion) on the ground that the revised Programme would not (on the balance of probabilities) enable the Works to be completed by the Completion Date;
(f) in relation to the submission of any Quality Plan or part of a Quality Plan or any changes to any Quality Plan pursuant to Clause 25.4 or Clause 25.7 (Quality Assurance) or any quality manual or procedure in accordance with Clause 25.10 (Quality Assurance), on the grounds that such Quality Plans, or parts of or changes to such Quality Plans, quality manuals or procedures, or the quality management systems which they reflect, would not comply with:
(i) in the case of the Design Quality Plan and the Construction Quality Plan referred to in Clause 25 (Quality Assurance), the requirements referred to in Section 8 of Part 8 of the Schedule (Construction Matters); and
(ii) in the case of the Services Quality Plan referred to in Clause 25 (Quality Assurance), the requirements referred to in Section 3 of Part 14 of the Schedule (Service Requirements);
(g) in relation to the submission of any proposed revision or substitution for the Method Statements or any part of any Method Statement (as the case may be) pursuant to Clause 27.3 (Project Co Services Changes), on the grounds that:
(i) the proposed revision or substitution is not in accordance with Good Industry Practice;
(ii) the performance of the Service in accordance with the proposed revision or substitution would (on the balance of probabilities):
(aa) be materially different from the performance of the Service in accordance with the Method Statement prior to such proposed revision or substitution; or
(bb) be less likely to achieve compliance with the Service Level Specification for that Service; or
(cc) have an adverse effect on the provision by the Board of the Clinical Services or on the safety of any users of the Facilities; or
(iii) the proposed revision or substitution would (on the balance of probabilities) result in an inferior standard of performance of the relevant Service to the standard of performance in accordance with the Method Statement prior to such proposed revision or substitution; and
(h) in relation to the submission of any Schedule of Programmed Maintenance, any revision to any Schedule of Programmed Maintenance pursuant to Clause 28.1 or 28.6 (Maintenance) or any submission of Unprogrammed Maintenance Works pursuant to Clause 28.8 (Maintenance), on the grounds that:
(i) carrying out the Programmed Maintenance or the Unprogrammed Maintenance Works in the period or at the times suggested would (on the balance of probabilities) interfere with the operations of the Board and such interference could be avoided or mitigated by Project Co rescheduling the Programmed Maintenance or the Unprogrammed Maintenance Works; or
(ii) in relation to the Schedule of Programmed Maintenance, the proposed hours for carrying out the Programmed Maintenance are not consistent with the principles set out in Appendix 2, Table B to this Part 10 of the Schedule; or
(iii) the proposed method of performance of the Programmed Maintenance or the Unprogrammed Maintenance Works would not be in accordance with the Service Level Specifications for that Service36; or
(iv) the safety of patients or other users of the Facilities would (on the balance of probabilities) be adversely affected; or
(v) the period for carrying out the Programmed Maintenance or the Unprogrammed Maintenance Works would (on the balance of probabilities) exceed the period reasonably required for the relevant works; and
(vi) in relation to the submission of Project Co's proposals for the Handback Works, the Handback Programme and the Handback Amount, on the grounds that:
(i) in the case of the Handback Works, Project Co's proposals will not (on the balance of probabilities) ensure that the Handback Requirements are achieved by the Expiry Date;
(ii) in the case of the Handback Programme, performance of the Handback Works in accordance with the programme is not (on the balance of probabilities) capable of achieving satisfaction of the Handback Requirements by the Expiry Date; and
(iii) in the case of the Handback Amount, it does not represent the cost of carrying out the Handback Works according to the Handback Programme and the provisions of Part 24 of the Schedule (Handback Procedure).
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35 This drafting has been included as a framework for guidance and should be amended as appropriate on a project specific basis, including, in particular, to take account of how commissioning of the Facilities is to be carried out and any other matters that are to be left to be agreed pursuant to the Review Procedure (such as proposals for self-monitoring systems etc).
36 Boards need to consider (as a technical matter) the extent to which the terms of the Service Level Specifications are sufficient to ensure that the Facilities will be maintained sensibly (for example, that material maintenance work is not being back-ended, with items of plant and equipment being made to operate beyond the design/programmed life expectancy).