Public procurement notice: Voluntary Ex Ante Transparency Notice
Published: 2023-03-10
Buyer: Tonbridge and Malling Borough Council
Country: UK
Contract type: Services
Procedure: Contract award without prior publication
CPV classification: 90500000
Estimated value: 121340554.58 GBP
Award criteria: Other

Technical requirements: Tonbridge and Malling Borough Council (“TMBC”) and Tunbridge Wells Borough Council (“TWBC”) (together “the Partnership”) awarded a contract to Urbaser Ltd and Urbaser SAU (“Urbaser”) for recycling and refuse collection services and street cleansing services across the local authority areas covered by the Partnership (“the Contract”). The procurement leading to the award of the Contract was advertised in the OJEU (Contract Notice 2018/S 023-048722). Details can be found in the Contract Notice and Contract Award Notice (2019/S 060-139796).
The contract is for a term of 8 years with an option to extend twice; the first extension for either up to 2 years or 8 years and the second extension for a period of 2 years but only if the contract has already been extended for 8 years.
The Contract commenced in March 2019 with an initial term of 8 years. The estimated value of the Contract was £121,340,554.85 (excl. VAT). The services have been affected by the nationwide shortage of HGV drivers, as a result of which the garden waste service and some other collections were temporarily suspended. In order to attract and retain drivers, Urbaser proposed an enhanced pay rate. In the period May to October 2022 the Partnership provided some financial assistance towards that enhanced pay rate. The support was conditional upon Urbaser providing evidence of the enhanced pay rate actually provided to the drivers and incurred by Urbaser. The value of the Partnership’s support between May and October 2022 was capped at £178,896.87. That support has been successful in recruiting and retaining drivers. The pressures in the market continue, however, and the Partnership intends to continue to provide this support for the period from November 2022 to 31 March 2023.
The value in II.1.7 represents the estimated value of the Contract when it was originally entered into in September 2018. The estimated value of the Contract taking into account the proposed modification detailed in this notice will be up to a maximum of £121,786,554.58.
The Partnership considers that it is permissible to make the proposed modifications to the Contract because they fall within the scope of Regulation 72(1)(e) and 72(8) of the Public Contracts Regulations 2015 (“PCR”) which permit modifications that are not “substantial”.
The proposed modifications do not render the Contract materially different from the one initially concluded. The financial support to be provided from November 2022 to March 2023 will not exceed £146,500 (approx. 0.12% of the value of the Contract). It relates to a market-wide issue and will only be paid upon Urbaser providing evidence of the actual costs incurred. It will not alter the economic balance of the Contract. From April 2023 the increased cost of wages will be covered by the Contract’s indexation provisions.
In relation to the re-rounding of collections and re-fleeting of vehicles, this will bring a direct benefit to the Partnership and its residents. Waste collections will be more efficient, the number of journeys will reduce, as will carbon emissions. The contribution provided in relation to the costs of early termination of the existing vehicle leases will be limited to £300,000 (approx. 0.25% of the value of the Contract) which will reflect a share of Urbaser’s costs of implementing the improvements to the service. While the Partnership will ultimately acquire a liability (in the form of the unexpired term of the vehicle lease) this will directly benefit the Partnership by facilitating a smooth transition to a new provider or to in-house provision, with the key assets in place. It will mean that the Partnership or a new provider will not be exposed to the need to compete with established service providers for new vehicles in a congested market during a transition period. Urbaser taking the new vehicles on an 8-year lease (the expected life of such vehicles) ensures value for money which ultimately benefits the Partnership and its taxpayers.
The Partnership considers that the proposed modifications (individually and collectively) do not render the Contract materially different to the one originally concluded, do not extend the scope of the Contract, do not alter the economic balance of the Contract in favour of Urbaser, and would not have affected the participation in, or outcome of, the procurement.
The Partnership is providing details of the historical modifications that have occurred to date, which were de minimis and therefore did not require a re-procurement.
The support provided by the Partnership from November 2022 to March 2023 will be capped at £146,500. From April 2023 the increased costs of labour will be covered by the contractual indexation provisions.
The Partnership intends to modify the Contract to allow more efficient waste collections. To facilitate this, Urbaser will replace its existing vehicle fleet with new vehicles of different configuration. The new fleet and round configuration will reduce travel distances, carbon emissions, and vehicle down time. The Partnership has agreed to contribute £300,000 to the early termination costs of Urbaser’s current vehicle leases. To achieve value for money under the new leases the Partnership has agreed to Urbaser taking the new fleet under an 8-year lease. Although this will extend beyond the Contract term, it will bring direct benefits to the Partnership, whether the services are brought in-house or re-procured, as key assets will be in place.
In accordance with Chapter 6 of the Public Contracts Regulations 2015 (as amended) (Regulations 88 to 104)


Winner: Urbaser Ltd and Urbaser SAU
Award value: 121340554.58