below.

(d) Phase Three (B): Negotiations with Highest Ranking Proponent. If the Project Committee elects to carry out discussions and negotiations with the Proponent whose Proposal received the highest rank, the Project Committee will notify in writing the Proponents of the Proposals which fall within the Competitive Range but were not the highest ranking Proponent or failed to provide a better Proposal after the Project Committee conducted negotiations with multiple Proponents under Section 5.1(c) above, that negotiations will be conducted with the highest ranking Proponent. The highest ranking Proponents will receive a written notification containing the details and explaining that negotiations will be conducted according to the following procedures: -28- (i) No statement made or action taken by the Board, the Project Committee, any employee or officer of the Authority, or any advisor or consultant to or other agent or representative of the Authority or of the Project Committee during the discussions and negotiations will bind the Authority or the Project Committee in any way. Only the Contract, when effective in accordance with its terms, will be binding on the Authority. The Proponent may not contact or communicate with the Authority, its representatives or the Energy Commission, other than with Authorized Representatives during the negotiation process and only as provided in this Regulation and in any specific instructions provided by the Project Committee. (ii) The Proponent with the highest ranking which falls within the Competitive Range will be invited to one or more meetings with the Authorized Representatives to discuss, and answer questions with respect to, any aspect of its Proposal. (iii) The content and scope of the meetings with the Proponent will be determined by the Project Committee, based on the content of and circumstances relating to the Proponent's Proposal. The purpose of such meeting will be to clarify any doubts as to the requirements of the RFP and confirm that the terms of the Contract are understood; improve technical or other aspects of the Proposal in an effort to assure compliance with the specifications and performance requirements; discuss the basis of the proposed economic terms in an effort to improve the economic terms for the Authority; and discuss any other pertinent details of the Proposal SO as to result in a better Proposal and Contract for the Authority. (iv) The Project Committee and the Executive Director, or others whom the Board may designate, will: -29- (1) Establish procedures and schedules to carry out the discussions and to control the meetings; (2) Advise the Proponent as to deficiencies in its Proposal SO that it is given an opportunity to meet the requirements of the Authority; (3) Attempt to resolve any uncertainties concerning the Proposal, and otherwise clarify the terms and conditions of the Proposal; (4) Address any suspected mistakes that may be found to exist; (5) Provide the Proponent with an opportunity to submit any modification to the economic terms, technical aspects or any other aspects of its Proposal which may result from the discussions, or the opportunity to provide additional documentation or analysis to assist the Project Committee in assessing the feasibility of the Project and the Proponent's qualifications; and (6) Keep a record of the date, time, place, and attendees of the meetings. (v) After each interview or meeting with the Proponent, the Project Committee may require the Proponent to submit in writing confirmation of any clarification of a Proposal discussed in the meeting. (vi) Discussions and negotiations may be carried out in whole or in part through written or telephone communications without in-person meetings or interviews, at the discretion of the Project Committee. (vii) Additional discussions or negotiations may be conducted after the Authority receives a revised Proposal. If negotiations are not successful the Project Committee -30- may at any time discontinue further negotiations and discussions with any Proponent, and may commence negotiations with the next highest ranking Proponent as described in this section. (e) Subject to the Authority's right to reject any or all Proposals and subject to the Energy Commission approval of the final Contract to be negotiated, the Authority will select the Proposal considered most advantageous to it, considering the Evaluation Criteria. (f) Prior to the Award of a Contract, information related to Proposal or its evaluation will not be discussed with anyone other than the Proponent who submitted it and personnel involved in the evaluation and selection process. (g) The RFP evaluation process will last no more than ninety (90) days, unless circumstances outside the control of the Project Committee require such process to be extended. (h) Proposals will be evaluated on both price or cost criteria, such as price or service fee, and relevant system upgrade costs (when applicable), as well as non-price terms such as Proponent experience constructing and operating similar facilities, project risks and proposed risk mitigation measures, and other pertinent criteria. Proposals will also be evaluated by the degree to which they conform to the requirements established in the standard form of contracts included as part of the RFP. (i) The respective scoring system of all Evaluation Criteria should be clearly defined in the RFP. 5.2 Amendment to Procurement Process. Nothing in this Regulation shall limit the Authority's power to amend the procurement process set forth herein pursuant to an amendment to this Regulation or to modify it in connection with a particular RFP in the manner set forth in such RFP to the extent not in conflict with the Acts and other applicable law. -31-