44.6 The Board may, in its discretion, require Project Co by written notice to terminate any Service Contract or procure the termination of any Sub-Contract (as the case may be) in respect of any relevant Market Tested Service and appoint a replacement Service Provider or procure the appointment of a replacement Sub-Contractor in accordance with Clause 50 (Assignation, sub-contracting and Change in Control) to provide all those parts of the Services which were performed pursuant to the previous Service Contract or Sub-Contract:
(a) within sixty (60) Business Days, as an alternative to termination of this Agreement pursuant to the provisions of Clause 44.5 in any circumstance in which the Board could exercise such power; or
(b) within the period required to operate the procedures of Part 17 of the Schedule (Market Testing Procedure), if Project Co receives more than the number of Service Failure Points listed against that Service in [specify where] a rolling [ ] month period145.
44.7 If the Board exercises its rights under Clause 44.6, Project Co shall forthwith put forward proposals for the interim management or provision of the Services performed pursuant to the previous Service Contract or Sub-Contract to the Board until such time as an alternative Service Provider or Sub-Contractor can be engaged by Project Co. If Project Co fails to do so (or its proposals if implemented are not reasonably likely to give adequate provision of the relevant Services) then without prejudice to the other rights of the Board in this Clause, the Board may perform, or procure a third party to perform, such Services itself and the provisions of Clauses 29.6 to 29.12 (inclusive) (Monitoring of Performance) shall apply, changed according to context, to such Services in those circumstances.
44.8 If Project Co fails to terminate the relevant Service Contract (or procure the termination of the relevant Sub-Contract) and to appoint a replacement Service Provider or procure the appointment of a replacement Sub-Contractor in accordance with the provisions of Clause 44.6(a) the Board shall be entitled at its option to exercise its rights in accordance with the provisions of Clause 44.5.
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144 If a service provider is removed pursuant to this Clause then the Service Failure Points attributable to that Service are wiped clean, as regards the new service provider. However, any Service Failure Points that have accrued to Project Co in respect of such service remain. Where Project Co is providing only 1 or 2 services (e.g. hard FM only deals) Board to consider whether the remedy in Clause 44.6 .is appropriate. Guidance appears on the Department of Health (England) website about how the 'Spence Letter' (which deals with the consequences of the removal of sub-contractors) should be applied.
145 Where failure is in relation to Hard FM Services, the rights under this clause are probably inappropriate and the Board should rely on its right to terminate the Agreement.