3 Electricity Market Test3

3.1 The Service Provider shall, unless the Authority instructs otherwise, carry out Electricity Market Tests, so that it is able to enter into Electricity Contracts for a continuous supply of electricity to the Apparatus for the Contract Period.

3.2 At least eighteen (18) weeks prior to each Electricity Market Test Date, the Service Provider shall provide to the Authority (or procure the provision of):

(a) a detailed programme for the delivery of the Electricity Market Test (the Market Test Programme); and

(b) a detailed report proposing the terms and conditions (including the proposed duration) of the electricity contract (the Market Test Report),

which shall identify:

(i) all reasonable and proper steps or tasks to be taken by either party in accordance with their respective obligations under this Contract;

(ii) any relevant milestones or other matters required to be addressed during such procedure; and

(iii) where appropriate, the matters to be discussed in accordance with paragraph 3.4.

3.3 The Authority may, acting reasonably, give written notice to the Service Provider not less than sixteen (16) weeks prior to the Electricity Market Test Date specifying an alternative Supply End Date, provided that:

(a) this is permitted by the terms of the relevant Electricity Contract; and

(b) the current electricity supplier has consented,

in which case the Supply End Date shall be amended accordingly.

3.4 As soon as reasonably practical, and in any event not later than ten (10) Business Days after the Service Provider has provided the Market Test Programme and Market Test Report to the Authority in accordance with paragraph 3.2 the parties shall discuss (together with the Sub-Contractor, where appropriate) and the parties shall agree:

(a) the Market Test Programme and the Market Test Report;

(b) the terms and conditions of the new Electricity Contract (including its Supply End Date);

(d) the quantity of the supply which is required and the degree of flexibility over the term of the Electricity Contract;

(e) the method of measurement of electricity consumption as notified by the Authority;

(f) any other requirements in relation to the procurement process, the Tender Documents, the Electricity Contract and the Electricity Market Test;

(g) the parties respective obligations in relation to the Electricity Market Test and the Electricity Contract; and

(h) the selection criteria for the pre-qualification of tenderers and selection of the Successful Tenderer and evaluation criteria for the assessment of tenders (such criteria to help determine, but not to limit, the information to be provided to the Authority following receipt of tenders to enable the Authority to determine the Successful Tenderer).

3.5 If the parties are unable to agree any of the issues listed in paragraph 3.4 then either party may refer the dispute to the Dispute Resolution Procedure.

3.6 The matters discussed by the parties in accordance with paragraph 3.4 shall, when agreed (or determined pursuant to the Dispute Resolution Procedure) constitute the Electricity Market Test Proposal and shall be recorded in writing by the Service Provider. Following agreement or determination of the Electricity Market Test Proposal, the parties shall perform and comply with their respective obligations set out in the Electricity Market Test Proposal and this Schedule 9.

3.7 Prior to the commencement of each Electricity Market Test, the Service Provider shall assess the potential benefits of different methods of energy procurement and shall report the results in writing to the Authority. If any such review concludes that changes to the method of procurement and/or the process of the Electricity Market Test would be beneficial to either the Service Provider and/or the Authority, having regard to the potential impact on energy costs and/or energy consumption then the Authority may (in its sole discretion) agree to changes to the method of energy procurement and/or the Electricity Market Test Proposal.

3.8 As soon as reasonably practicable and (in any event) in compliance with the programme set out in the Electricity Market Test Proposal the Service Provider shall provide, (or shall procure) a comprehensive and accurate assessment of the prospective tenderers according to the pre-qualification criteria set out in the Electricity Market Test Proposal and the parties shall meet in order to agree the number and identity of prospective tenderers which shall be eligible for pre-qualification.

3.9 The Service Provider shall ensure that the Tender Documents contain terms to restrict the tender for the electricity contract to electricity supply licence holders or any party authorised to supply electricity in accordance with the Electricity Act 1999 (as amended by the Utilities Act 2000), any regulations thereunder and all other relevant Legislation.

3.10 As soon as reasonably practicable and, (in any event) in compliance with the Market Test Programme, the Service Provider shall issue (or shall procure the issue of):

(a) the draft Tender Documents to the Authority for final approval and (subject to their compliance with the requirements of the Electricity Market Test Proposal); and

(b) when approved by the Authority, the agreed Tender Documents electronically to prospective tenderers,

and shall conduct the Electricity Market Test in accordance with the Electricity Market Test Proposal.

3.11 Within ten (10) Business Days of receipt of the completed tenders, the Service Provider shall provide (or shall procure the provision) to the Authority of comprehensive and accurate information and analysis of the tenders received in accordance with the Electricity Market Test and any further information which the Authority reasonably requires. This shall include such information or analysis as is necessary to enable the Authority to fulfil its obligations under this Contract and to act in accordance with all relevant Legislation. Following receipt of such information the Authority shall (after consultation with, and having received appropriate recommendations from, or on behalf of, the Service Provider) select the Successful Tenderer and confirm details of the Successful Tenderer to the Service Provider.

3.12 Once a Successful Tenderer has been selected the Service Provider shall execute and give effect (or shall procure the execution and giving effect) to the Electricity Contract in sufficient time to allow for such registration which may be required by Legislation and (in any event) in accordance with the programme set out in the Electricity Market Test Proposal.

3.13 The Service Provider shall bear all of its own costs, fees and expenses in undertaking any Electricity Market Test in accordance with this paragraph 3, provided that any additional costs, fees and expenses arising from Electricity Market Tests which occur, at the request of the Authority, more frequently than once each year shall be borne by the Authority.

3.14 The Authority may at any time opt to directly manage all or the remaining part of any Electricity Market Test and shall notify the Service Provider in writing of such a decision. For the avoidance of doubt, the Service Provider shall not be liable for any consequences arising from any failure to procure an Electricity Contract or the supply of electricity to the Apparatus resulting from the Authority exercising its rights under this paragraph 3.14 otherwise than as a consequence of any breach by the Service Provider of its obligations.

3.15 The Service Provider shall (and shall procure that the Sub-Contractor shall) act in accordance with the provisions of this Schedule 9 and all relevant Legislation in relation to the Electricity Market Test and the Service Provider shall conduct (or shall procure the conduct of) the Electricity Market Test so as to enable the Authority to comply with all relevant Legislation and its respective duties and obligations under this Contract.

__________________________________________________________________________________________

3 The timing of the first Electricity Market Test will depend on the expiry of the current electricity contract. All time periods in this paragraph 3 should be addressed on a project specific basis to ensure they are practical and deliverable for the parties.