Public procurement notice: Voluntary Ex Ante Transparency Notice
Published: 2018-06-15
Buyer: Oxfordshire County Council
Country: UK
Contract type: Works
Procedure: Negotiated without a prior call for competition
CPV classification: 45210000: Building construction work | 71200000

Technical requirements: Agreement relating to land to the West of Great Western Park (known as Valley Park), Didcot, Oxfordshire — S106 Town and Country Planning Act 1990
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 Valley Park, Didcot (“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 two primary schools. The developer also has the choice of providing land to Oxfordshire County Council plus funding so that the County Council may design and construct one or both of the primary schools instead.
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 Valley Park, Didcot (“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 two primary schools. The developer also has the choice of providing land to Oxfordshire County Council plus funding so that the County Council may design and construct one or both of the primary schools instead.
Agreement relating to land to the West of Great Western Park (known as Valley Park), Didcot, Oxfordshire — S106 Town and Country Planning Act 1990
In the proposed agreement (“the Section 106 Agreement”) the Developer is afforded the choice of providing:
a. land for 2 primary schools and funding for their construction which does not amount to a public works contract because there is no contract with the Developer for works to be undertaken;
b. land for 1 of the primary schools and funding for its construction (see a above) with the Developer undertaking the construction of the other primary school and then passing the school as built to the County Council
c. The Developer undertaking the construction of both of the new primary schools and then passing the new primary schools as built to the County Council.
The agreement where option b or c is adopted for one or both of the new primary schools 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 Contract 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 GMbH v 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 City Council (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.
2) In the S106 Agreement, the Developer will agree to undertake a transparent and impartial procurement process for the school works.


Winner: Persimmon Homes Limited (company number 04108747), Persimmon Homes (Wessex) Limited (company number 01311348), Taylor Wimpey UK Limited (company number 01392762), Hallam Land Management Limited (company number 02456711) and various landowners (further information available on request).