Works - 256514-2018

15/06/2018    S113    - - Works - Voluntary ex ante transparency notice - Negotiated procedure without a call for competition 

United Kingdom-Oxford: Building construction work

2018/S 113-256514

Voluntary ex ante transparency notice

Works

Legal Basis:

Directive 2014/24/EU

Section I: Contracting authority/entity

I.1)Name and addresses
Oxfordshire County Council
County Hall, New Road
Oxford
OX1 1ND
United Kingdom
Contact person: Julia Taplin
E-mail: Julia.Taplin@oxfordshire.gov.uk
NUTS code: UKJ14

Internet address(es):

Main address: www.oxfordshire.gov.uk

I.4)Type of the contracting authority
Regional or local authority
I.5)Main activity
General public services

Section II: Object

II.1)Scope of the procurement
II.1.1)Title:

Agreement relating to land to the West of Great Western Park (known as Valley Park), Didcot, Oxfordshire — S106 Town and Country Planning Act 1990

II.1.2)Main CPV code
45210000
II.1.3)Type of contract
Works
II.1.4)Short description:

The proposed Contract will be a planning obligation pursuant to Section 106 of the Town and Country Planning Act 1990 relating to the proposed development at Valley Park, Didcot (“the Development”). It will contain a series of commitments by the developer, conditional on implementation of the Development (entirely at the discretion of the developer) and progress of the Development, for delivery of mitigating measures including the design and construction of two primary schools. The developer also has the choice of providing land to Oxfordshire County Council plus funding so that the County Council may design and construct one or both of the primary schools instead.

II.1.6)Information about lots
This contract is divided into lots: no
II.1.7)Total value of the procurement (excluding VAT)
Lowest offer: 6 000 000.00 GBP / Highest offer: 20 500 000.00 GBP taken into consideration
II.2)Description
II.2.1)Title:
II.2.2)Additional CPV code(s)
71200000
II.2.3)Place of performance
NUTS code: UKJ14
Main site or place of performance:

Oxfordshire.

II.2.4)Description of the procurement:

The proposed contract will be a planning obligation pursuant to Section 106 of the Town and Country Planning Act 1990 relating to the proposed development at Valley Park, Didcot (“the Development”). It will contain a series of commitments by the developer, conditional on implementation of the Development (entirely at the discretion of the developer) and progress of the Development, for delivery of mitigating measures including the design and construction of two primary schools. The developer also has the choice of providing land to Oxfordshire County Council plus funding so that the County Council may design and construct one or both of the primary schools instead.

II.2.5)Award criteria
II.2.11)Information about options
Options: no
II.2.13)Information about European Union funds
The procurement is related to a project and/or programme financed by European Union funds: no
II.2.14)Additional information

Section IV: Procedure

IV.1)Description
IV.1.1)Type of procedure
Negotiated procedure without prior publication
  • The works, supplies or services can be provided only by a particular economic operator for the following reason:
    • absence of competition for technical reasons
Explanation:

The Contract falls outside of the scope of the application of the Directive.

IV.1.3)Information about framework agreement
IV.1.8)Information about the Government Procurement Agreement (GPA)
The procurement is covered by the Government Procurement Agreement: yes
IV.2)Administrative information
IV.2.1)Previous publication concerning this procedure

Section V: Award of contract/concession

Contract No: 1
Lot No: 1
Title:

Agreement relating to land to the West of Great Western Park (known as Valley Park), Didcot, Oxfordshire — S106 Town and Country Planning Act 1990

V.2)Award of contract/concession
V.2.1)Date of contract award decision:
13/06/2018
V.2.2)Information about tenders
The contract has been awarded to a group of economic operators: no
V.2.3)Name and address of the contractor/concessionaire
Persimmon Homes Limited (company number 04108747), Persimmon Homes (Wessex) Limited (company number 01311348), Taylor Wimpey UK Limited (company number 01392762), Hallam Land Management Limited (company number 02456711) and various landowners (further information available on request).
Persimmon House, Fulford
York
YO10 4FE
United Kingdom
Telephone: +44 1666826152
E-mail: keith.roberts@persimmonhomes.com
NUTS code: UKE21

Internet address: www.persimmonhomes.com

The contractor/concessionaire will be an SME: no
V.2.4)Information on value of the contract/lot/concession (excluding VAT)
Lowest offer: 6 000 000.00 GBP / Highest offer: 20 500 000.00 GBP taken into consideration
V.2.5)Information about subcontracting

Section VI: Complementary information

VI.3)Additional information:

In the proposed agreement (“the Section 106 Agreement”) the Developer is afforded the choice of providing:

a. land for 2 primary schools and funding for their construction which does not amount to a public works contract because there is no contract with the Developer for works to be undertaken;

b. land for 1 of the primary schools and funding for its construction (see a above) with the Developer undertaking the construction of the other primary school and then passing the school as built to the County Council

c. The Developer undertaking the construction of both of the new primary schools and then passing the new primary schools as built to the County Council.

The agreement where option b or c is adopted for one or both of the new primary schools to be built by the Developer, does not constitute a Public works contract on 2 grounds.

1) The essential ingredient of a public works contract is that it is for pecuniary interest – see Regulation 2 of the Public Contract Regulations 2015 (“the Regulations”). The Advocate General’s opinion on European commissionaire (Kingdom of Spain) [2011] CR GO attempts to provide a definitive statement of the meaning of “pecuniary interest” concluding that it implies that the Contracting Authority needs to use its own funds either directly or indirectly. Direct financing will occur when the Contracting Authority uses public funds to pay for the works or services in question. Indirect financing will occur when the Contracting Authority suffers economic detriment as a result of the method of financing the works or services. In this case there is no direct financing and as the grant of planning permission does not amount to pecuniary interest (see Hulmut Muller GMbH v Bundesanstalt Fur Immobilienaufgaben), there is no consideration given in return for the requirement to construct a school.

2) It is also a requirement of a Public works contract that there must be a legally enforceable obligation to carry out works or work. The High Court determined in R (Midlands Co-operative Society Limited) v Birmingham City Council (1) Tesco Stores Limited (2) that where the building obligations in an agreement pursuant to Section 106 Town and Country Planning Act 1980 (“S106 Agreement”) were conditional upon the developer commencing the development which he was not legally obliged to do, there was no Public works contract. The section 106 Agreement in this case is a S106 Agreement and the building obligations will indeed be conditional upon the developer commencing and then progressing the development which it will not be legally obliged to do.

Notes.

1) The estimated value of the school works is 13 800 000 GBP.

For the first primary school and 6 700 000 GBP for the second primary school.

2) In the S106 Agreement, the Developer will agree to undertake a transparent and impartial procurement process for the school works.

VI.4)Procedures for review
VI.4.1)Review body
Oxfordshire County Council
Oxford
United Kingdom
VI.4.2)Body responsible for mediation procedures
VI.4.3)Review procedure
VI.4.4)Service from which information about the review procedure may be obtained
VI.5)Date of dispatch of this notice:
14/06/2018