2  Retendering Procedure

2.1  If the Authority elects to retender the provision of the Project pursuant to paragraph 1.1(c), then the following provisions shall apply:

(a)  the objective of the retendering procedure shall be to establish and pay to the Service Provider the Highest Compliant Tender Price as a result of the Tender Process;

(b)  the Authority shall (subject to any legal requirements preventing it from doing so) use its reasonable endeavours to complete the Tender Process as soon as practicable;

(c)  the Authority shall notify the Service Provider of the qualification criteria and the other requirements and terms of the Tender Process, including the timing of the Tender Process but shall act reasonably in setting such requirements and terms;

(d)  the Service Provider authorises the release of any information by the Authority under the Tender Process which would otherwise be prevented under clause 57 (Confidentiality) that is reasonably required as part of the Tender Process;

(e)  the Service Provider may, at its own cost, appoint a person (the Tender Process Monitor) to monitor the Tender Process for the purposes of monitoring and reporting to the Service Provider and the Senior Lenders on the Authority's compliance with the Tender Process and making representations to the Authority.  The Tender Process Monitor shall not disclose any confidential information to the Service Provider or any other person (and shall provide an undertaking to the Authority to such effect as a condition of its appointment) but shall be entitled to advise the Service Provider as to whether it considers that the Authority has acted in accordance with the Tender Process, and correctly determined the Adjusted Highest Compliant Tender Price;

(f)  the Tender Process Monitor shall enter into a confidentiality agreement with the Authority in a form acceptable to the Authority (acting reasonably) and shall be entitled to attend all meetings relating to the Tender Process, inspect copies of the tender documentation and bids and shall be required to make written representations to the Authority regarding compliance with the Tender Process.  All representations shall be made by the Tender Process Monitor in a timely manner as the Tender Process proceeds.  The Authority shall not be bound to consider or act upon such representations but acknowledges that such representations may be referred to by the Service Provider in the event that the Service Provider refers a dispute relating to the Adjusted Highest Compliant Tender Price to the Dispute Resolution Procedure;

(g)  for all or any part of a Month, falling within the period from the Termination Date to the Compensation Date, the Authority shall pay to the Service Provider:

(i)  the Post Termination Service Amount for that Month, on or before the date falling ten (10) Business Days after the end of the Month; and

(ii)  the Post Termination Service Amount for the Month ending on the Compensation Date, on or before the date falling twenty (20) Business Days after the Compensation Date;

(h)  if any Post Termination Service Amount is less than zero then it shall be carried forward and shall be set off against any future positive Post Termination Service Amounts.  If any such Post Termination Service Amount has not been set off on or before the Compensation Date then it shall be taken into account in the calculation of the Adjusted Highest Compliant Tender Price;

(i)  the Authority shall require bidders to bid on the basis that they will receive the benefit of any outstanding claims under material damage insurance policies and amounts (if any) standing to the credit of the Joint Insurance Account on the date that the New Contract is entered into;

(j)  as soon as practicable after tenders have been received, the Authority shall (acting reasonably) determine the Compliant Tenders and shall notify the Service Provider of the Adjusted Highest Compliant Tender Price;

(k)  if the Service Provider refers a dispute relating to the Adjusted Highest Compliant Tender Price to the Dispute Resolution Procedure, the Authority shall be entitled to enter into a New Contract.  The Authority shall pay to the Service Provider the Adjusted Highest Compliant Tender Price on or before the date falling twenty (20) Business Days after it has been determined in accordance with the Dispute Resolution Procedure and the Authority shall pay interest to the Service Provider at the Senior Debt Rate on any amount of Adjusted Highest Compliant Tender Price which had been withheld, from the date specified in paragraph 2.1(l) until the date specified in this paragraph 2.1(k).  For the avoidance of doubt, where there is an agreed amount and a disputed amount in respect of the Adjusted Highest Compliant Tender Price, the Authority shall (where it is agreed that the Adjusted Highest Compliant Tender Price is a positive number) pay to the Service Provider the agreed amount no later than the date specified in paragraph 2.1(l), with the disputed amount being dealt within accordance with paragraph 2.1(k);

(l)  subject to paragraphs 2.1(k) and 2.1(o), the Authority shall pay to the Service Provider an amount equal to the Adjusted Highest Compliant Tender Price no later than the date falling twenty (20) Business Days after the date of the New Contract;

(m)  the discharge by the Authority of its payment obligation in paragraph 2.1(j) shall be in full and final settlement of all the Service Provider's claims and rights against the Authority for breaches and/or termination of this Contract and the Project Documents  whether under contract, tort, restitution or otherwise, save for any liability of the Authority which arose prior to the Termination Date that has not already been taken into account in the Adjusted Highest Compliant Tender Price;

(n)  subject to paragraphs 2.1(o) and 2.1(r), if the Authority has not paid an amount equal to the Adjusted Highest Compliant Tender Price to the Service Provider on or before the date falling two (2) years after the Termination Date then the following provisions of this paragraph 2.1 shall not apply to that termination and the provisions of paragraph 4 shall apply instead;

(o)  if the Adjusted Highest Compliant Tender Price is zero or a negative number then the Authority shall have no obligation to make any payment to the Service Provider and with effect from the time that the Authority gives notice of that event to the Service Provider, the Authority shall be released from all liability to the Service Provider for breaches and/or termination of this Contract and any Project Document whether under contract, tort, restitution or otherwise save for any antecedent liability of the Authority which arose prior to the Termination Date (but not from the termination itself) that has not already been taken into account in determining the Adjusted Highest Compliant Tender Price;

(p)  if the Adjusted Highest Compliant Tender Price is less than zero then an amount equal to the Adjusted Highest Compliant Tender Price shall be due and payable by the Service Provider to the Authority on the date of the New Contract;

(q)  the Authority may elect at any time prior to the receipt of a Compliant Tender to follow the no retendering procedure under paragraph 4 by notifying the Service Provider that this election has been made; and

(r)  if the Authority has received all bids from bidders under the Tender Process and has received a Compliant Tender but decides not to complete the Tender Process, it shall notify the Service Provider of this decision and pay to the Service Provider an amount equal to the Adjusted Highest Compliant Tender Price within twenty (20) Business Days of such notification.