15.5.2  Market testing procedures

(a)  Market testing will consist of a review of the relevant Reviewable Services through a tender process.

(b)  Government and the private party will meet to agree the procedures for market testing including:

(i)  evaluation criteria; and

(ii)  tender documents (including contract documents),

but it will be the private party which undertakes (at its cost and risk) the market testing.

(c)  The private party will be able to group services for the market testing exercise.

(d)  The tender process must:

(i)  where possible include tenders from at least three independent tenderers;

(ii)  be transparent and inclusive and be conducted so that government has an observational role;

(iii)  avoid actual or perceived conflicts of interest (e.g. if a company associated with the private party or its shareholders or the principal operating sub-contractor or one of its associates intends to bid, then an independent tender process manager should be appointed);

(iv)  if government requires, be certified as compliant with these requirements by an independent probity auditor; and

(v)  include in the call for tender a draft services provider sub-contract from the private party (approved by government) so that the service obligations are the same in all material respects as the current service sub-contract (except for the fee, term or any other provision where previously agreed with government).

(e)  Government must be satisfied that all prospective tenderers are of good character and have appropriate financial standing and technical capacity.