9.5.1 Particularly where the Authority will take back the Assets at the end of the Contract, maintenance obligations need to be monitored (other than through the performance monitoring system - see Section 19 (Price and Payment, Availability and Performance Mechanism)) and a mechanism needs to be agreed whereby this can be done in as non-intrusive a manner as possible.
9.5.2 The following is the required drafting for a Clause dealing with surveys during the Term:
9.5 Surveys
(a) If the Authority reasonably believes that the Contractor is in breach of its obligations under Clause 9.1 (Hard FM Maintenance Services) then it may carry out (or procure) a survey of the Assets to assess whether the Assets have been and are being maintained by the Contractor in accordance with its obligations under Clause 9.1 (Hard FM Maintenance Services).9 This right may not be exercised more often than once every [two10] years.
(b) The Authority shall notify the Contractor in writing a minimum of [14] days in advance of the date on which it wishes to carry out the survey. The Authority shall consider in good faith any reasonable request by the Contractor for the survey to be carried out on a different date if such request is made at least [7] days prior to the notified date and the Contractor (acting reasonably) is able to demonstrate that carrying out the survey on the notified date would materially prejudice the Contractor's ability to provide the Service.11
(c) When carrying out any survey, the Authority shall use reasonable endeavours to minimise any disruption caused to the provision of the Service by the Contractor. The cost of the survey shall, except where paragraph (d) below applies, be borne by the Authority. The Contractor shall give the Authority (free of charge) any reasonable assistance required by the Authority during the carrying out of any survey.
(d) If the survey shows that the Contractor has not complied or is not complying with its obligations under Clause 9.1 (Hard FM Maintenance Services), the Authority shall:
(i) notify the Contractor of the standard that the condition of the Assets should be in to comply with its obligations under Clause 9.1 (Hard FM Maintenance Services);
(ii) specify a reasonable period within which the Contractor must carry out any necessary rectification and/or maintenance work; and
(iii) be entitled to be reimbursed by the Contractor for the cost of the survey.12
(e) The Contractor shall carry out such rectification and/or maintenance work within the period specified and any costs it incurs in carrying out such rectification and/or maintenance work shall be at its own expense.
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9 Any such survey should be based upon the original output specifications. The Authority should ensure at all times that it does not delay in notifying the Contractor of any deficiencies in the maintenance of the Assets.
10 Other periods may be appropriate (e.g. for an asset that requires a high or low level of maintenance).
11 There may be other relevant considerations which need to be specified e.g. in some sectors the survey might prejudice security if carried out on a certain date.
12 This can be set-off under Clause 12 (Set-off). Please note that for projects where the scope and hence cost of such survey may be large (e.g. grouped school or large road projects), some threshold level of failure may be appropriate so that the Contractor is not penalised for immaterial failures. More specialised survey provisions may be appropriate for specialist Assets such as roads or street lighting.