Public procurement notice: Voluntary Ex Ante Transparency Notice
Published: 2019-05-03
Buyer: University of Ulster (also known as Ulster University)
Country: UK
Contract type: Works
Procedure: Contract award without prior publication
CPV classification: 45000000: Construction work | 45200000: Building and civil engineering work | 45210000: Building construction work | 45300000 | 45400000
Estimated value: 46497598.1 GBP
Award criteria: The most economic tender

Technical requirements: Construction of Blocks BC and BD and Partial Refurbishment of Blocks BA and BB (Greater Belfast Development Project) for Ulster University
Ulster University (UU) publishes this notice concerning a proposed agreement (the Agreement) with Somague Sacyr SA (SS), to settle disputes under the Works Package 4 Contract (WP4C) between UU, and SS and Lagan Construction Group Ltd (Lagan) as joint contractors. The disputes concerned contractors' entitlements under provisions relating to defects in the performance by other contractors of certain prior works and litigation was commenced. Lagan then entered administration, since when some of the works under the WP4C have continued pursuant to an interim agreement but the programme of works has been materially delayed. UU has entered into heads of terms with SS under which and subject to preconditions, the parties will enter into the Agreement. Separately Lagan are no longer a party to the WP4C with Somague solely responsible for the completion of the remaining works. UU considers entry into the agreement will not amount to a modification of the WP4C requiring a new procurement process.
The design and construction of Blocks BC and BD and partial refurbishment of Block BA and BB, York Street Belfast, including bridge to link Block BB, demolition works, all associated site works and design services. There will be a requirement for mechanical building works, electricity building works, architectural services, structural and civil engineering services and services engineering services. The Works will also include the decant works from the University’s existing campus at Jordanstown.
A Contract Award Notice was published in the Official Journal of the European Union on 4.4.2015 (2015/S 067-117814) in respect of the award of the contract.
SS and Lagan were jointly and severally responsible for performance of the WP4C. By a notice of termination dated 22.3.2019, the WP4C was terminated with respect to Lagan by reason of its insolvency, and by a deed of confirmation dated 22.3.2019, SS confirmed that it continued to be bound by the WP4C. In the circumstances, the removal of Lagan was not a modification or a substantial modification of the WP4C.
The Contract Award Notice referred to at Section II.2.14) stated a total contract value of 131 752 401,94 GBP. The heads of terms entered into by UU and SS established a settlement sum of 46 497 598,10 GBP to be paid by UU to SS. At the date of this notice a portion of this settlement sum has been discharged with SS retaining payment of monies initially made on a provisional basis with further payments
Being subject to the parties entering the Agreement and pursuant to the terms therein. This settlement sum also comprises further amounts in excess of the original total contract value to be paid in instalments over the remaining life of the WP4C until practical completion, so long as works are not delayed. This settlement amount is regarded as an amount proper to settle SS's existing claims and UU's counterclaims, and is not a modification of the WP4C within the meaning of Article 72 of Directive 2014/24/EU.
First, a revised timetable for WP4C works, with revised liquidated damages provisions for delay. This is not a substantial modification. In particular, it does not change the character of the WP4C, and does not favour SS. Although there has already been delay to the works, the timetable going forward, and the liquidated damages provisions, will not be more favourable to SS than was originally the case under the WP4C.
Second, new or revised provisions for collaborative review of design documents, and for dispute resolution. These will be neutral in their effect, and are similarly not substantial modifications.
Third, modification of provisions in the WP4C concerning SS's responsibility to bring forward costs savings proposals, clarifying the number and nature of the alternatives to be produced and UU's discretion about which if any to accept, and making provision for SS to bear the risks and costs of a failure to achieve savings. This is similarly not a substantial modification.
Fourth, provision for the works to comply with BREEAM Certificate Excellent rating and building energy performance requirements specified in the WP4C. This is not a substantial modification, or (to the extent that it may allow an EPC rating of 38 rather than 40) is of a value permitted by Article 72(5).
Fifth, the use of reasonable endeavours by both parties to minimise further employer's change instructions under the WP4C. This is not a substantial modification.
Sixth, provision for the extension or confirmation of performance bond and parent company guarantee provision. This does not favour SS, and is not a substantial modification.
The date stated at Section V.2.1) above is the date the UU and SS entered the heads of terms referred to in Section II.1.4).
Any proceedings alleging that the University is in breach of its duties under the Public Contract Regulations 2015 must be started in the High Court of Northern Ireland, in accordance with the time limits set out in those regulations (including the requirement to start proceedings within 30 days beginning with the date when the economic operator first knew or ought to have known that grounds for starting proceedings had arisen). The University will not enter into the Agreement before the end of a period of at least 10 days beginning with the day after the date on which this notice is published in the Official Journal.


Winner: Somague Sacyr, S.A. formerly known as Somague Engenharia, S.A
Award value: 46497598.1