Agreement further to Section 106 Town and Country Planning Act 1990 (as amended) relating to construction of a 2FE Primary School on a development at Wretchwick Way, Bicester, Oxfordshire

CPV: Construction work for school buildings

Procedure method

Award procedure without prior publication of a call for competition

Legal basis

CELEX · 32014L0024 Public Contracts Regulations 2015 (Directive 2014/24/EU)

Procurement category

Works

Notice status

Awarded without competition

Procurement threshold

Unspecified in notice

Regulatory regime

Standard

Commercial structure

Stand-alone contract (no framework)

Competition type

Direct award (no call for competition)

GPA / WTO covered

Unspecified in notice

Recurring procurement

Unspecified in notice

First published

11 Mar 2022, 11:20 GMT

Last source update

11 Mar 2022, 11:20 GMT

Authority reference

DN601800

FTS notice number

2022/S 000-006682

Classification (CPV)

Construction work for school buildings

Delivery area

South East (UKJ14)

Official registry OCID

ocds-h6vhtk-0320b4 Find a Tender

Why no open competition

The procurement falls outside the scope of application of the directive

Published justification

There is proposed an agreement (“the Section 106 agreement”) in which the Developer is afforded the choice of providing:

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

b. the Developer undertaking the construction of a new primary schools (2 FE) and then passing the new primary school, as built, to the County Council which will not constitute public works contracts for the following reasons:

It is considered that the agreement where option b is adopted for the new primary school to be built by the Developer, will not constitute public works contracts for the following reasons:

1. The Section 106 agreement is required to be entered into so as to render the Development acceptable in planning terms. The core rationale for this requirement is that the provision of the school is necessary to enable the grant of planning permission and they are considered to be in compliance with Regulations 122 Community Infrastructure Levy Regulations 2010. Thus, the essential objective of the Section 106 Agreement is for a planning purpose in accordance with the statutory planning regime. It was endorsed in Faraday Development Ltd v West Berkshire Council and St Modwen Developments Ltd (“the Faraday Case) following the principle established in Helmut Muller GMbH v Bundesanstalt fur Immobilienaufgaben-Helmut Muller) that an agreement was not a public works contract where the contracting authority’s primary objective was of a planning nature under the statutory regime.
2. An essential ingredient of a public works contract is that it is for pecuniary interest – see Regulation 2 of the Public Contract Regulations 2015. The Advocate General’s opinion in European Commission v Kingdom of Spain seeks 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. No direct financing will be provided by the contracting authority in respect of the Section 106 agreement. Indirect financing occurs when the contracting authority suffers economic detriment as a result of the method of funding the works. No economic detriment will be sustained by the contracting authority in consequence of entering into the section 106 agreement. The primary school works will be delivered in kind rather than through the provision of funding to the contracting authority.
3. Under the Section 106 Agreement there will be no liability for the primary school to be delivered unless the Development is implemented and it is entirely at the discretion of the Developer as to whether the Development is implemented. There is no obligation on the Developer in the S106 agreement to implement the Development. Thus the Section 106 agreement corresponds to the Section 106 agreement considered in the case of R (Midlands Co-operative Society Ltd) v Birmingham City Council (1) Tesco Stores Ltd (2) as approved in the Faraday case (paragraph 52) on the basis that the agreement considered in the Midlands Co-operative Society case contained no obligation contingent or otherwise for the carrying out of development.

Notes:

a. The estimated aggregate value of the works further to the Section 106 agreement which the Developer is to undertake is £11,166,876.

b. The County Council will not contribute any money towards the building of the primary school

c. In the Section 106 Agreement the Developer will agree to undertake a transparent and impartial procurement process for the primary school works.

• Redrow HomesAwarded supplier01990710 Redrow House, St Davids Park, Flintshire, South East, CH5 3RX
• Wates Developments LimitedAwarded supplier00441484 Wates House, Wates House, Leatherhead, South East, KT22 7SW

No document links were published on the notice.