18.3.1  Right to request

(a)  Government may at any time, during the construction and operation phases, request a Modification to the works, facility or project activities by serving a notice on the private party. Government will provide the private party with sufficient detail of the required Modification to enable the private party to quantify the effects and costs in its proposal (see section 18.3.2 below).

(b)  In some jurisdictions, government may not request a Modification that adversely affects the use, patronage or capacity of the facility or the private party's ability to earn revenue, except as set out in section 18.3.5.

(c)  If government requests a Modification after Completion, it may require the private party to conduct a tender process for all or part of the works required to effect the Modification.57

The private party must have regard to the outcome of the tender process (including the tender costs) in the private party's proposal (see section 18.3.2 below).

(d)  If the private party considers a government request constitutes a Modification, the private party will be required to notify government of this prior to proceeding with the Modification. A determination will then be made as to whether the request constitutes a government-initiated Modification and whether government wishes to proceed with that request.

(e)  If the private party fails to notify government in accordance with paragraph (d), it will have no entitlement to claim for any Compensation in respect of that Modification.

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57 The private party will call for tenders consistent with the principles of the government's procurement policies at the date government requests the proposal with necessary changes to reflect the private party is not an authority.