NKDC Leisure Management Services

CPV: Recreational, cultural and sporting services

Procedure method

Negotiated without publication of a contract notice

Legal basis

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

Procurement category

Services

Notice status

Awarded

Procurement threshold

Unspecified in notice

Regulatory regime

Standard

Commercial structure

Stand-alone contract (no framework)

Competition type

Competitive procedure

GPA / WTO covered

Unspecified in notice

Recurring procurement

Unspecified in notice

First published

14 Oct 2024, 11:35 BST

Last source update

14 Oct 2024, 11:35 BST

Authority reference

DN251222

FTS notice number

2024/S 000-032943

Classification (CPV)

Recreational, cultural and sporting services

Delivery area

East Midlands (UKF3)

Official registry OCID

ocds-h6vhtk-04abb2 Find a Tender

Why no open competition

Extreme urgency brought about by events unforeseeable for the contracting authority/entity and in accordance with the strict conditions stated in the directive

Published justification

The manner of exercising the powers

4.3 There are restrictions on these powers. Section 2(3) of the LA 2011 prevents a local

authority from using the general power to make or alter:

4.3.1 arrangements for the discharge of a local authority's functions by committees,

joint committees, another authority, or an officer under Part 6 of the Local

Government Act 1972;

4.3.2 arrangements for local authority governance in England under Part 1A of the

Local Government Act 2000 (as inserted by the LA 2011); or

4.3.3 any other contracting-out arrangements, or other arrangements that authorise a

person to exercise a function of a local authority.

4.4 The effect of these provisions, particularly the provision described at paragraph 4.3.3, is that

NKDC cannot enter into a contract which divests the authority of its statutory powers or

obliges the authority not to exercise its powers. This means that the varied contract

establishing the Agency Model should not be capable of being interpreted as a delegation

of power. It must be a genuine agency relationship.

THL.164904104.3 6 LPS.108654.00001

4.5 An agent is a tool through which the principal acts, without any loss of control or direction.

A delegate exercises a degree of discretion in performing the functions of the delegator on

its behalf.

4.6 Provided that the amended contract establishes a genuine agency model, our view is that

NKDC would not be acting outside of its vires by engaging GLL as its agent to provide leisure

services. There is supporting case law for this point, which sets out that a genuine agency

arrangement will not be a delegation of power:

"The general principle is that when a statute gives someone the right to invoke some legal

procedure by giving a notice or taking some other formal step, he may either do so in person

or authorise someone else to do it on his behalf." (General Legal Council ex parte Whitter v

Frankson [2006] UKPC 42 (per Lord Hoffmann at [4]).)

4.7 It will be vital that the amended contract not only refers to GLL as NKDC's agent, but also

ensures that this is reflected in the substance of GLL's obligations, i.e. the degree of control

that NKDC retains and the scope of discretion that GLL is given to deliver the services. We

would be happy to assist with this point.

4.8 Provided that a delegation of power is avoided, our view is that NKDC has the power to

enter into the Agency Model.

• Greenwich Leisure LtdAwarded supplier Middlegate House, The Royal Arsenal, Woolwich, London, East Midlands, SE18 6SXContact emailShow contact details

No document links were published on the notice.