Selection of Tenderer

The Contractor shall determine which compliant tender in respect of the Market Tested Service represents the most economically advantageous (taking into account the principles set out in paragraph 3.2 of this Part 3 and the Bidding Requirements) provided nothing in this paragraph 3 shall oblige the Contractor to accept the lowest tender.  On making this determination, the Contractor shall supply to the Authority a 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.

The principles referred to in paragraph 3.1 of this Part 3 are as follows:

the proposed contract(s) will incorporate the same terms and conditions, requirements and standards as the Leisure Contract and all other agreements to which the Leisure Operator was a party in relation to the Project; and

the successful tender price (taking into account any variations permitted by the terms and conditions of the tender) is sustainable under the market conditions prevailing at the time of the Market Test until the next Market Test Date;

the successful tenderer (if other than the incumbent Leisure Operator) satisfies the Bidding Requirements and any other reasonable and relevant criteria of the Senior Lenders and has the technical, financial or other resources available to it which are sufficient to enable it to discharge the obligations and liabilities of the Leisure Operator under the Leisure Contract and the other agreements to which it is a party in relation to the Project.

In circumstances where no or only one (1) compliant tender has been received, the Contractor shall state this in the tender evaluation but shall not recommend any prospective tenderer.  The Parties shall meet and shall endeavour to agree:

any adjustment to the Unitary Charge; and/or

any Change required to the Market Tested Service and/or any part of this Agreement.

In the event agreement is not reached within twenty (20) Business Days of receipt by the Authority of the tender report, the matter shall be referred to the Dispute Resolution Procedure.  The Adjudicator shall be required to determine any adjustment amount (if any) and whether any Change to the Market Tested Service and/or any other part of this Agreement is required on the principles set out in this Part 3 and so as to place the Leisure Operator is in no better and no worse position (as defined in Clause 71.3 (No better and no worse) than at the Service Availability Date.  For the avoidance of doubt, in such circumstances, the incumbent Leisure Operator shall continue to provide the Market Tested Service.

If the Authority does not agree with the Contractor's determination notified under paragraph 3.1 of this Part 3, the Authority may, within fifteen (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 fifteen (15) Business Days, the dispute shall be dealt with in accordance with the Dispute Resolution Procedure.

The Contractor shall appoint the tenderer selected and agreed with the Authority [or determined pursuant to the Dispute Resolution Procedure] as the Leisure Operator in respect of the Market Tested Service.

The Parties shall bear their own costs, fees and expenses associated with the Market Test.