If the State elects to conduct a Tender Process for the New Contract, the following provisions will apply.
(a) (State to use reasonable endeavours): The State will (subject to any legal requirements preventing it from doing so) use its reasonable endeavours to complete the Tender Process as soon as practicable.
(b) (State to notify Project Co of qualification criteria and other requirements of Tender Process): The State will notify Project Co of the qualification criteria, the other requirements and the terms of the Tender Process, including the timing of the Tender Process, but will act reasonably in setting such requirements and terms. If the tenderer is required to engage subcontractors, qualification criteria will include a requirement that the tenderer engage subcontractors with the requisite technical and financial capabilities to undertake the Project.
(c) (State to ensure appropriate methodology): The State, in setting the qualification criteria and the other requirements and terms of the Tender Process, must ensure that there is in place an appropriate methodology for comparing tenders.
(d) (Project Co authorises release of information by State under Tender Process): Project Co authorises the release of any information by the State under the Tender Process that would otherwise be prevented under this Deed that is reasonably required as part of the Tender Process.
(e) (Project Co may appoint Tender Process Monitor): Project Co may, at its own cost, appoint a person (the Tender Process Monitor) to monitor the Tender Process for the purpose of monitoring and reporting to Project Co and the Financiers on the State's compliance with the Tender Process and making representations to the State. The Tender Process Monitor will not disclose any confidential information in relation to tenders submitted as part of the Tender Process to Project Co or any other person except:
(i) where permitted to do so by the terms of the confidentiality agreement referred to in section 3.3(f); or
(ii) to advise Project Co and the Financiers as to whether it considers that the State has acted in accordance with the Tender Process and correctly determined the Highest Compliant Tender Price and to provide details of any representations that the Tender Process Monitor makes to the State regarding the Tender Process.
(f) (Tender Process Monitor to enter into confidentiality agreement): Project Co will procure the Tender Process Monitor to enter into a confidentiality agreement with the State in a form acceptable to the State, and the Tender Process Monitor will be entitled to attend all meetings relating to the Tender Process, inspect copies of the tender documentation and proposals and make written representations to the State regarding compliance with the Tender Process. Project Co will procure that the Tender Process Monitor makes any such representations in relation to the Tender Process to the State in a timely manner as the Tender Process proceeds. The State will not be bound to consider or act upon such representations but acknowledges that such representations may be referred to by Project Co in the event that Project Co refers a dispute relating to the Highest Compliant Tender Price for resolution in accordance with clauses 48 to 50.
(g) (State to determine Compliant Tenders): As soon as practicable after tenders have been received, the State will (acting reasonably) determine the Compliant Tenders. Subject to the State receiving at least two Compliant Tenders, it will notify Project Co of the Highest Compliant Tender Price. If fewer than two Compliant Tenders are received, the State must promptly notify Project Co accordingly and it will be deemed that there is no Liquid Market and the tendering process pursuant to this section 3 will cease and the 'no tendering' procedure under section 4 will automatically apply.
(h) (Discretion of State following Tender Process): The State is not obliged to enter into any contract with any person, resulting from the Tender Process. It may enter into a contract in its sole and absolute discretion.
(i) (Dispute resolution): If Project Co refers a Dispute relating to the Highest Compliant Tender Price or the Default Termination Payment calculated under this section 3 for resolution in accordance with clauses 48 to 50, the State will still be entitled to enter into a contract replacing this Deed (whether or not a New Contract).
(j) (State may elect to follow 'no tendering' procedure): The State may elect at any time prior to the receipt of two Compliant Tenders to follow the 'no tendering' procedure under section 4 by notifying Project Co that this election has been made.
(k) (Calculation of Default Termination Payment if Liquid Market exists): If a Liquid Market exists, the Default Termination Payment is determined in accordance with section 3.2 and this section 3.3 and (where the Default Termination Payment is a positive amount) Project Co has complied with clause 46.6(c):
(i) the Default Termination Payment, calculated in accordance with section 3.2 and this section 3.3 will be payable within 20 Business Days of the date of the New Contract; or
(ii) if the State chooses not to enter into any contract with any person resulting from the Tender Process, it must notify Project Co accordingly in which case the Default Termination Payment calculated in accordance with section 3.2 and this section 3.3 will be payable within 20 Business Days of such notification.