2  Market Testing Programme

At least [forty (40)]2 weeks before each Market Testing Date, the parties shall meet together as often as may be necessary in respect of all Market Tested Services to be Market Tested on that date:

(a)  to review the Services Specification and the Service Delivery Plan for each Market Tested Service and, if required by the Authority, amend the relevant part of the Services Specification and/or the relevant Service Delivery Plan as appropriate.  The Service Provider may only object to any change in the requirements of the Authority on the grounds referred to in paragraph 3.2(a) (Authority Change Notice) of Part 1 of the Change Procedure.  Any such objection must be made by notice in writing to the Authority within ten (10) Business Days of the relevant Market Testing Meeting;

(b)  to discuss and seek to agree (subject to the provisions of paragraph 3 (Grouping of Services) any grouping or groupings of Market Tested Services or any division of any Market Tested Service into separate parts which will optimise the opportunity for the Authority to obtain best value for money;

(c)  to discuss and seek to agree the appropriate media for advertising the Market Tested Services and identifying the Prospective Tenderers;3

(d)  to discuss and seek to agree the basis on which the Tenderers shall be selected by the Service Provider from among the Prospective Tenderers;

(e)  to discuss and seek to agree the Tender Requirements which shall be in sufficient detail to allow the Service Provider to determine the Preferred Tenderer and shall include, without limitation:

(i)  a statement of the Tender Validity Period;

(ii)  requirements in respect of the possible grouping or groupings of Market Tested Services and any division of any Market Tested Service into separate parts;

(iii)  details of the tender evaluation criteria;

(iv)  the terms and conditions under which the Market Tested Services will be contracted;

(v)  in relation to the first Market Test, a statement that Tenderers shall (where the Transfer Regulations do not otherwise apply) be required to offer employment to all Relevant Employees on terms and conditions as favourable as those they enjoy with that Service Provider as if the Transfer Regulations do apply;

(vi)  the Authority's requirements in relation to the following, which shall be decided (in the Authority's discretion) on the basis of its consideration of what represents best value for money for the Authority:

(A)  the basis on which Tenderers are to be required to bid at the subsequent Market Test if the Transfer Regulations were not to apply at that time;

(B)  whether (and on what terms) the then incumbent Service Provider would be given any protection by the Authority in the event that it was not awarded a contract following any subsequent Market Test for the relevant Service in relation to any liabilities reasonably incurred by such unsuccessful incumbent Service Provider in terminating the employment of any Relevant Employee that would not transfer to a successful Preferred Tenderer because the Transfer Regulations did not apply at that time;

(vii)  the TUPE Information which shall be provided by the Service Provider;

(viii)  the information that Tenderers are required to provide;

(ix)  an explanation of the requirement for Tenderers to comply with the provisions of clause 31 (TUPE and Employment Matters), clause 32 (Employment Obligations on Expiry/Termination) and clause 33 (Pension Matters) of this Agreement;

(x)  how many tenders are required for the Market Testing to be valid; and

(xi)  whether or not an independent tender manager needs to be appointed by the Service Provider to manage the tender process.

2.2  The time, place and agenda for the first Market Testing Meeting shall be advised by the Service Provider to the Authority at least one (1) month in advance of the meeting.  Thereafter, each subsequent meeting shall be convened on not less than ten (10) Business Days' notice (identifying the agenda items to be discussed at the meeting) provided that in emergencies a meeting may be called at any time on such notice as may be reasonable in the circumstances.

2.3  To avoid doubt, any tender evaluation criteria agreed between the Service Provider and the Authority and made available to the Tenderers as part of the Tender Requirements must be objective and impartial.

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2 This may need to change on a project specific basis.

3 Authorities should promote the pan-European advertisement of the Market Tested Services both as good procurement practice and to promote genuine competition for the Market Testing exercise.  Where relevant or appropriate, this may include advertisement in the Official Journal of the European Union.