VOLUNTARY EX ANTE TRANSPARENCY NOTICE

Section I: Contracting Authority/Entity

I.1)

Name, Address and Contact Point(s)

I.2)

Type of contracting Authority and Main Activity or Activities

Ministry or any other national or federal authority, including their regional or local sub-divisions National or federal agency/Office Regional or local Authority Regional or local Agency/Office Body governed by public law European Institution/Agency or International Organisation

General public services Defence Public order and safety Environment Economic and financial affairs Health Housing and community amenities Social protection Recreation, culture and religion Education

Section II: Object of the Contract

II.1)

Description

II.1.1)

Title attributed to the contract by the contracting authority

Agreement relating to the development of land at Backworth Primary School, Title Number TT338161 — Section 106 of the Town and Country Planning Act 1990.

II.1.2(a))

Type of works contract

Execution		Design and execution
Execution, by whatever means

II.1.2(b))

Type of supplies contract

II.1.2(c))

Type of service contract

II.1.2)

Main site or location of works, place of delivery or performance

North Tyneside, Backworth Primary School.

II.1.3)

This notice involves a framework agreement

II.1.4)

Short description of the contract or purchase(s)

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 Backworth Primary School, Title Number TT338161 (‘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 a primary school. The Developer also has the choice of providing land to North Tyneside Council (‘Contracting Authority’) plus funding so that the Contracting Authority may design and construct the primary school instead.

II.1.5)

Common Procurement Vocabulary (CPV)

II.1.6)

Contract covered by the government procurement agreement (GPA)

II.2)

Total final value of the contract(s)

II.2.1)

Total final value of the contract(s)

Section IV: Procedure

IV.1)

Type of procedure

IV.1.1)

Type of procedure

IV.2)

Award criteria

IV.2.1)

Award criteria

IV.2.2)

An electronic auction has been used

IV.3)

Administrative information

IV.3.1)

File reference number attributed by the contracting authority

SP000958

IV.3.2)

Previous publication(s) concerning the same contract

Other previous publications

Section V: Award of contract

Contract No:

 Lot Number: 

 Title: 

V.1)

Date of contract award decision:

V.2)

Numbers of offers received:

V.3)

Name and address of economic operator to whom the contract has been awarded

V.4)

Information on value of contract

V.5)

The contract is likely to be subcontracted

Short description of the value/proportion of the contract to be subcontracted

Section VI: Complementary Information

VI.1)

Contract related to a project and/or programme financed by community funds?

VI.2)

Additional Information

VI.3)

Procedures for appeal

VI.3.1)

Body responsible for appeal procedures

Body responsible for mediation procedures

VI.3.2)

Lodging of appeals

VI.3.3)

Service from which information about the lodging of appeals may be obtained

VI.4)

Dispatch date of this Notice

Annex D1 – General procurement

Justification for the award of the contract without prior publication of a contract notice in the Official Journal of the European Union (OJEU)
Directive 2004/18/EC

a) No tenders or no appropriate tenders in response to:

	Open procedure
	Restricted procedure

b) The products involved are manufactured purely for the purpose of research, experiment, study or development under the conditions stated in the Directive (for supplies only).

c) The works/goods/services can be provided only by a particular tenderer for reasons that are:

	Technical
	Artistic
	Connected with the protection of exclusive rights

d) Extreme urgency brought about by events unforeseeable by the contracting authority and in accordance with the strict conditions stated in the Directive.

e) Additional works/deliveries/services are ordered under the strict conditions stated in the Directive.

f) New works/services, constituting a repetition of existing works/services and ordered in accordance with the strict conditions stated in the Directive.

g)Service contract awarded to the successful candidate or one of them after a design contest.

h) For supplies quoted and purchased on a commodity market.

i) For the purchase of supplies on particularly advantageous terms:

	from a supplier which is definitely winding up its business activities
	from the receivers or liquidators of a bankruptcy, an arrangement with creditors or a similar procedure.

j) All tenders submitted in reply to an open procedure, a restricted procedure or competitive dialogue were irregular or unacceptable. Only those tenderers were included in the negotiations which have satisfied the qualitative selection criteria.

Other justification for the award of the contract without prior publication of a contract notice in the OJEU:

k) The contract has as its object services listed in Annex B of Directive 2004/18/EC or in Annex XVII B of Directive 2004/17/EC

l) The contract falls outside the scope of application of the relevant directive.

In addition to the box(es) ticked above please explain in a clear and comprehensive manner why the award of the contract without prior publication of a contract notice in the OJEU is lawful, stating in any case the relevant facts, and, as appropriate, the conclusions of law in accordance with the articles in the relevant Directive (500 words maximum):

In the proposed agreement (‘the Section 106 Agreement’) the Developer is afforded the choice of providing: a. Land for a primary school and funding for the 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 the new primary school and then the Authority will take a 125 year lease of the premises. The agreement where option b is adopted for the new primary school 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 Contracts 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 GMbHv 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 CityCouncil (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 4 912 729 GBP; 2. In the S106 Agreement, the Developer will agree to undertake a transparent and impartial procurement process for the school works.