44.2  Parties to Discuss

As soon as practicable after receipt of any notice from either Party under Clause 44.1 (Qualifying Change in Law), the Parties shall apply Schedule 21 (Change Protocol) in order to discuss and agree the issues referred to in Clause 44.1 (Qualifying Change in Law) and any ways in which the Contractor can mitigate the effect of the Qualifying Change in Law. In applying the Change Protocol the parties shall take into account (inter alia):

44.2.1  providing evidence that the Contractor has used reasonable endeavours (including (where practicable) the use of competitive quotes) to oblige the Sub-Contractors to minimise any increase in costs and maximise any reduction in costs;

44.2.2  demonstrating how any Capital Expenditure to be incurred or avoided is being measured in a cost effective manner, including showing that when such expenditure is incurred or would have been incurred, foreseeable Changes in Law at that time have been taken into account by the Contractor;

44.2.3  giving evidence as to how the Qualifying Change in Law has affected prices charged by any similar businesses to the Project, including similar businesses in which the shareholders or their Affiliates carry on business;

44.2.4  demonstrating that any expenditure that has been avoided, which was anticipated to be incurred to replace or maintain assets that have been affected by the Qualifying Change in Law concerned, has been taken into account in the amount which in its opinion has resulted or is required under Clauses 44.1.5 and/or 44.1.6.

44.2.5  providing evidence that the Contractor has used reasonable endeavours to pass any increase in costs to existing Third Party Waste or Off-Take customers of the Contractor or Operating Sub-Contractor as the case may be and has demonstrated in relation to Third Party Waste Contracts referred to in Clause 51.4 (Third Party Waste Contracts) by evidencing compliance with such Clause [note - reference to "future" customers has been removed and therefore on-going mitigation provisions in relation to passing Change in Law costs to third parties may be required depending on the position reached on proportionality or claw-back of Third Party Income (see footnote at the beginning of this Clause 44] 90.

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90  Ideally Authorities ought only to pay a proportion of Change in Law costs relating to their usage. This limb may be amended if the parties agree to share the Qualifying Change of Law costs proportionately. If proportionality cannot be achieved, the Authority ought at least to recover the Change in Law attributable to third party capacity through the excess Third Party Income.