8.1 Where Project Co does not intend to use its own resources to execute any Board Additional Works Items it shall comply with Good Industry Practice with the objective of ensuring that it obtains good value for money (taking into account all relevant circumstances including, in particular, the requirement that Project Co should be no worse off as a result of the implementation of the Board Additional Works Enquiry) when procuring any work, services, supplies, materials or equipment required for the Board Additional Works Items. To avoid doubt, where the Capital Expenditure in respect of the Board Additional Works Item is expected to exceed a value of £100,000 (index linked)177 Project Co's obligations under this paragraph shall (unless otherwise agreed) include an obligation to seek and evaluate competitive tenders.
8.2 Where the implementation of any Board Additional Works Item by Project Co is subject to the CDM Regulations, the following provisions shall apply:
(a) Project Co shall timeously serve on the Board an election pursuant to CDM Regulation 8 in respect of the proposed Board Additional Works Item and shall act as "the client" in relation to the relevant Board Additional Works Item for all the purposes of the CDM Regulations;
(b) Project Co shall comply with all of the obligations incumbent on the client under the CDM Regulations in relation to the relevant Board Additional Works Item; and
(c) Project Co shall, as soon as reasonably practicable following the completion of the relevant Board Additional Works Item, issue to the Board three copies of either the health and safety file prepared in relation to the relevant Board Additional Works Item (where prior to the implementation of the relevant Board Additional Works Item no health and safety file existed in respect of the structure or structures affected by the relevant Board Additional Works Item) or the relevant page or pages to be added to (or substituted for existing pages in) any existing health and safety file affected by the implementation of such Board Additional Works Item.
8.3 Notwithstanding any other express provision of this Agreement, where the Board considers, in its sole discretion (acting reasonably and having taken appropriate legal and technical advice), that the procurement of any Board Additional Works Item would be governed by any element of the Procurement Legislation with the result that the Board itself is under a duty competitively to tender any contract in relation to such Board Additional Works Item in accordance with such Procurement Legislation, the Board shall not be obliged to issue a Variation Enquiry to Project Co in relation to such Board Additional Works Item and shall be free to procure such Board Additional Works Item by any means it sees fit (which, to avoid doubt, may include awarding a contract to a third party in relation to such work).
8.4 Where the Board exercises its right under paragraph 8.3, the parties shall (as soon as possible following the decision of the Board so to exercise) meet and seek to agree such course of action (which may include, where relevant, changes to the terms of the Agreement, granting relief from liability or the payment of compensation) as is necessary to leave Project Co (as far as is possible) in no better and no worse a position following the Board exercising such right than it would have been had the Board not exercised the right and had not sought to procure the Board Additional Works Item. If the parties shall fail to agree on the necessary course of action, not less than thirty (30) Business Days prior to the award by the Board of any contract in relation to the Board Additional Works Item, the issue of what course of action is so necessary may be referred for determination in accordance with Part 26 of the Schedule (Dispute Resolution Procedure).
8.5 Notwithstanding any other express provision of this Agreement, as between the Board and Project Co, the taking of and the consequences of any action by the Board in accordance with paragraph 8.3 shall not give rise to any rights for Project Co or any liability for the Board (whether in contract, delict or otherwise) other than as may be agreed or determined in accordance with paragraph 8.4.178
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177 The threshold above which competitive tendering is required is a matter to be determined on a project specific basis.
178 The rights set out in paragraphs 8.3-8.5 (inclusive) are included so that Boards are able to continue to comply with the provisions of United Kingdom and European Union procurement law. As a matter of law, it is not possible for a Board to commit in the Agreement to allow Project Co to carry out all future works contracts on behalf of the Board on a cost pass-through basis. It will be a matter of fact to be determined at the time whether a Board Additional Works Item is required to be awarded by the Board in accordance with Procurement Legislation. The precise detail of these provisions should be settled by Boards on a project specific basis.