27.3  Selection of Tenderers

(a)  The Contractor shall be responsible for compiling the list of prospective tenderers and selecting the tenderers from the list of prospective tenderers on the basis of their:

(i)  financial standing; and

(ii)  technical and managerial experience and ability (taking into account any relevant references).

(b)  No later than forty (40) Business Days before each Market Testing Review Date, the Contractor shall prepare and deliver to the Authority a draft market testing proposal (the "Market Testing Proposal") describing in detail the Contractor's proposed tenderers and the Tender Documents for each of the Market Tested Services in question, and the Market Testing Proposal shall incorporate all of the matters agreed by the parties and shall reflect the payment structure contained in this Agreement.

(c)  The Authority shall have a right to prevent the selection of any person as a prospective tenderer if it reasonably believes that such person does not (or could not reasonably be considered to) comply with any of the criteria referred to in Clause 27.3(a) above.

(d)  The Contractor shall provide to the Authority as soon as reasonably practicable a copy of the Tender Documents and each response to the Tender Documents.

(e)  The Authority shall have a right to review the list of prospective tenderers.  The Contractor shall provide the Authority with an explanation of the reasons behind the non-inclusion on the list of prospective tenderers of any person identified as suitable by the Authority, if so requested by the Authority.

(f)  If the parties are unable to agree any of the matters set out in the Market Testing Proposal or if the Authority reasonably considers that the Contractor has made a material error or omission in the Market Testing Proposal, the Authority may (subject to clause (g)) amend the provisions of the Market Testing Proposal to accord with statutory and government requirements at its sole discretion.

(g)  The Contractor may upon receiving any amendments made by the Authority in accordance with clause (f) refer the matter to the Dispute Resolution Procedure.

(h)  The Contractor shall provide any prospective tenderer which is unsuccessful in being selected with an explanation of the reasons behind its non-selection, if so requested by the person in question.

(i)  The Contractor shall manage (or procure the management by the FM Contractor of) the Market Testing tendering process in accordance with the Market Testing Proposal agreed or determined in accordance with this clause 27.2 (Market Testing Procedure).

(j)  The Contractor shall bear all of its own costs, fees and expenses associated with the Market Testing.

(k)  Subject to clause (m) (Market Testing Procedure), following the expiry of the tender period for the return of responses to the Tender Documents the Contractor shall determine, following consultation with the Authority, which tender to select.

(l)  

(i)  The Contractor shall determine which complaint tender in respect of any market tested service represents the best value for money119.

(ii)  On making this determination, the Contractor shall supply to the Authority copy of its tender evaluation, together with sufficient supporting information concerning the tender evaluation to enable the Authority to analyse and understand the basis for the Contractor's determination.

(iii)  If the Authority does not agree with the Contractor's determination, the Authority may, within 15 Business Days of being provided with the tender evaluation, dispute such determination and, if the parties do not resolve such dispute within a further 15 Business Days, the dispute shall be dealt with in accordance with Clause 67 (Dispute Resolution).

(m)  The Contractor shall select:

(i)  in respect of tenders for the provision of an individual Market Tested Service, the most economically advantageous tender received in respect of the provision of that Market Tested Service; and

(ii)  in respect of tenders for the provision of more than one (1) Market Tested Services, the most economically advantageous tender in respect of the provision of those Market Tested Services,

(n)  provided that nothing in this clause (m) (Market Testing Procedure) shall oblige the Contractor to accept the lowest tender.

(o)  Any dispute under clause (m) (Market Testing Procedure) shall be determined in accordance with the Dispute Resolution Procedure.

(p)  The Authority shall have the right to object to the selection of a tenderer where the tenderer has committed a Prohibited Act and such tenderer shall not be selected.

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119 If only one compliant tender is submitted in respect of some or all of the market tested services, the Authority is at risk of being obliged to pay an uncompetitive price for that part or all of the Service.  Accordingly the Contract may provide a right for the Authority to prevent the Contractor appointing a single bidder and passing those costs onto the Authority through the Unitary Charge without its approval.  The risks of only one such bid being received in practice should be remove and capable of assessment by the Contractor (unless there are project specific reasons to the contrary) which should enable the Contractor to accept the inclusion of a provision of this nature.  If the parties wish to specify what would happen in those circumstances, the provision should be amended on a project specific basis