6FBApproval of competitive tender process for construction and operation of a facility—requirements for tender process

#### 6FB Approval of competitive tender process for construction and operation of a facility—requirements for tender process (1) For paragraph 44PA(4)(b) of the Act, this regulation sets out requirements which a tender process must meet before being approved as a competitive tender process. (2) The tender process must relate to a proposed facility. (3) The tender process must set out the arrangements (including procedures and rules) that are to be followed for the conduct of the tender process, including; (a) the selection criteria that will be used to select the successful tenderer; and (b) the requirement for a tenderer to include in its tender the terms and conditions on which the tenderer will provide access to the service or services proposed to be provided by means of the facility, as specified in accordance with paragraph 44PA(2)(a) of the Act; and (c) the minimum requirements which a tender will be required to meet before being considered. > Note: Examples for paragraph (b) of things to be addressed in the proposed terms and conditions > Note: 1 A price or pricing methodology. > Note: 2 An obligation that the tenderer will not hinder access to the service. > Note: 3 An obligation that the tenderer will implement a particular business structure. > Note: 4 Procedures for determining terms and conditions of access to the service. > Note: 5 How the terms and conditions of access to the service will be administered. (4) The tender process must set out the arrangements (including procedures and rules) that are to be followed to ensure that the successful tenderer would not limit, or attempt to limit: (a) the services to which access may be sought; or (b) the construction or operation of other infrastructure which could provide the same services to the same market as the infrastructure proposed in the tender. (5) The tender process must ensure that a request for tender under the process would not limit, or attempt to limit: (a) the configuration of the infrastructure proposed in the tender; or (b) any other technical specification of the facility; unless the Commission is satisfied that it would be appropriate for the request for tender to do so. (6) The tender process must: (a) be designed in a way that makes it appropriate, in its circumstances, for ensuring reasonable terms and conditions of access to the service; and (b) be capable of being used in a way that makes it appropriate, in its circumstances, for ensuring reasonable terms and conditions of access to the service. (7) For subregulation (6), when the Commission considers the approval of the tender process it must have regard to: (a) the persons who are likely to be competitors for the construction and operation of the facility; and (b) the persons who are likely to be competitors for the provision of the services. (8) Subregulation (7) does not limit the matters to which the Commission may have regard when it considers the approval of the tender process. (9) The tender process must set out proposed selection criteria that will ensure that a tender will be selected principally on the basis that the tender will lead to the provision of the service or services proposed to be provided by means of the facility, as specified in accordance with paragraph 44PA(2)(a) of the Act: (a) at the lowest sustainable access price or prices; or (b) on terms and conditions that are otherwise most likely to promote the objects of Part IIIA of the Act. > Note: Although a tender is to be selected principally on the basis that it offers the most favourable access terms, as described in paragraphs (9)(a) and (b), an applicant’s tender may address additional objectives to be taken into account in the selection process, such as community service obligations and environmental objectives. (10) The tender process must set out proposed selection criteria that will ensure that a tender will not be selected unless the terms and conditions of access to the service or services proposed to be provided by means of the facility, as specified in accordance with paragraph 44PA(2)(a) of the Act, are reasonable, having regard to: (a) the objects of Part IIIA of the Act; and (b) the legitimate interests of the provider of the service; and (c) the legitimate interests of the owner of the facility; and (d) the public interest, including the public interest in having competition in markets (whether or not the markets are in Australia); and (e) the interests of persons who may wish to have access to the service; and (f) the objectives of procedural probity and fair dealing.