: UK-London: urban development construction work

UK-London: urban development construction work

2010/S 145-222953

VOLUNTARY EX ANTE TRANSPARENCY NOTICE

This notice is published by a contracting authority (covered by Directive 2004/18/EC)

SECTION I: CONTRACTING AUTHORITY/ENTITY

• I.1)
  NAME, ADDRESSES AND CONTACT POINT(S)

  Contact: Attn: Tel. E-mail: London Borough of Southwark
  Town Hall, Peckham Road
  London Borough of Southwark
  Jeremy Pilgrim MSc MRICS
  SE5 8UBLondon
  UNITED KINGDOM
  +44 2075251133
  Jeremy.Pilgrim@SOUTHWARK.GOV.UK

• I.2)
  TYPE OF THE CONTRACTING AUTHORITY AND MAIN ACTIVITY OR ACTIVITIES

  Regional or local authority

  General public services

  The contracting authority is purchasing on behalf of other contracting authorities No

I.3)
MAIN ACTIVITY OR ACTIVITIES OF THE CONTRACTING ENTITY

SECTION II: OBJECT OF THE CONTRACT

II.1.3)
The notice involves

II.2)
TOTAL FINAL VALUE OF CONTRACT(S)

II.2.1)
Total final value of contract(s)

SECTION IV: PROCEDURE

• IV.1)
  TYPE OF PROCEDURE
• IV.1.1)
  Type of procedure

  Award of a contract without prior publication of a contract notice in the Official Journal of the European Union (in the cases listed in points l) and m) in Annex D)

  Justification for the choice of the negotiated procedure without prior publication of a contract notice in the OJEU in accordance with Directive 2004/18/EC or 2004/17/EC respectively

  c) The works/goods/services can be provided only by a particular tenderer for reasons that are: TechnicalConnected with the protection of exclusive rights

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

  m) The contract falls outside the scope of application of the relevant Directive.

  The entry into a JV agreement between Southwark Borough Council (“SBC”) and Berkeley Homes (North East) London Limited ("BH"), without prior publication of a contract notice in the Official Journal of EU, is lawful because:

  (a) the agreement is considered to be a contract for the sale of land by Southwark to BH and thus falls outside the scope of Directive 2004/18/EC by virtue of Article 16(a),

  (b) alternatively the agreement would fall within the case set out in Article 31(1)(b) of the Directive justifying the use of the negotiated procedure without notice under which for technical reasons or reasons connected with the protection of exclusive rights the contract may be awarded only to a particular economic operator.

  BH and SBC own adjoining parcels of land off Tooley Street London SE1 adjacent to Potters Fields ("the Site"). Under the JV agreement BH and SBC have agreed to form a partnership between them to which their respective land holdings will be contributed and to carry out the development of the Site.

  SBC’s land is encumbered with two restrictive covenants, the benefit of both of which now belongs to BH, and a positive covenant. It is also affected by a ransom strip in the hands of BH, which means that there is no vehicular access to the SBC land without BH’s consent.

  SBC’s intention in entering into this agreement is to sell its land for a market price. Because of the negative covenants and ransom strip that benefit BH, SBC is in practice unable to sell the land to any person other than BH.

  The agreement will enable and require BH to develop the two plots of land. The development will not be undertaken in accordance with any specified requirements of SBC nor will it ultimately derive any ongoing economic benefit from the development once it is complete. Responsibility for the design of the development rests with BH and architects appointed by BH, although SBC will be entitled, in its capacity as JV partner, to comment on the design. SBC’s only authority over the design of the development will be in its capacity as local planning authority. All the development costs will be borne by BH.

  It is therefore SBC’s view that the agreement with BH does not constitute a public works contract, but rather is a transaction for the transfer of an interest in land to BH. In any event, the fact that BH benefits from negative covenants and a ransom strip means that it would in practice be impossible to appoint any other person to develop SBC’s part of the Site and the conditions of Article 31(1)(b) are satisfied.

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/entity

IV.3.2)
Previous publication(s) concerning the same contract

SECTION V: AWARD OF CONTRACT

V.1)
DATE OF CONTRACT AWARD DECISION:

V.2)
NUMBER OF OFFERS RECEIVED:

• V.3)
  NAME AND ADDRESS OF ECONOMIC OPERATOR IN FAVOUR OF WHOM THE CONTRACT AWARD HAS BEEN TAKEN

  E-mail: Tel. Internet: Fax Berkeley Homes (North East) London Limited
  19 Portsmouth Road, Cobham
  Surrey
  UNITED KINGDOM
  Justin.Tibaldi@BerkeleyGroup.co.uk
  +44 1932868555
  www.berkeleygroup.co.uk/berkeley
  +44 1932868667

V.4)
INFORMATION ON VALUE OF CONTRACT

V.5)
THE CONTRACT IS LIKELY TO BE SUB-CONTRACTED

SECTION VI: COMPLEMENTARY INFORMATION

• VI.1)
  CONTRACT RELATED TO A PROJECT AND/OR PROGRAMME FINANCED BY COMMUNITY FUNDS

  No

VI.2)
ADDITIONAL INFORMATION

• VI.3)
  PROCEDURES FOR APPEAL
• VI.3.1)
  Body responsible for appeal procedures

  This award is subject to review by the Courts of England and Wales

VI.3.2)
Lodging of appeals

VI.3.3)
Service from which information about the lodging of appeals may be obtained

• VI.4)
  DATE OF DISPATCH OF THIS NOTICE:

  26.7.2010