22-173 Forge Island Redevelopment

CPV: Accommodation and restaurant buildings · Building completion work · Building construction work · Building installation work · Car park building construction work · Cinema construction work · Construction work for commercial buildings · Construction work for lodging buildings · Construction work for restaurants and similar facilities · Construction work of leisure facilities · Entertainment building construction work · Entertainment centre construction work · +5 more

Procedure method

Award procedure without prior publication of a call for competition

Legal basis

CELEX · 32014L0024 Public Contracts Regulations 2015 (Directive 2014/24/EU)

Procurement category

Works

Notice status

Awarded without competition

Procurement threshold

Unspecified in notice

Regulatory regime

Standard

Commercial structure

Stand-alone contract (no framework)

Competition type

Direct award (no call for competition)

GPA / WTO covered

Yes (GPA)

Recurring procurement

Unspecified in notice

First published

26 Sept 2022, 12:01 BST

Last source update

15 Dec 2022, 11:45 GMT

Authority reference

22-173

FTS notice number

2022/S 000-035482

Classification (CPV)

Accommodation and restaurant buildingsBuilding completion workBuilding construction workBuilding installation workCar park building construction workCinema construction workConstruction work for commercial buildingsConstruction work for lodging buildingsConstruction work for restaurants and similar facilitiesConstruction work of leisure facilities

+7 more

Entertainment building construction workEntertainment centre construction work

Delivery area

Yorkshire & Humber (UKE31)

Official registry OCID

ocds-h6vhtk-036b58 Find a Tender

Why no open competition

The works, supplies or services can be provided only by a particular economic operator due to protection of exclusive rights, including intellectual property rights; Extreme urgency brought about by events unforeseeable for the contracting authority/entity and in accordance with the strict conditions stated in the directive

Published justification

In 2018, following a competition to secure best value, Muse Developments Limited (Muse) was selected as the development partner to deliver the regeneration of Forge Island, Rotherham.

The arrangement was not considered to constitute a public works contract for the purposes of the Public Contracts Regulations 2015. The project envisaged that Muse would secure external funding but allowed for alternative options, including for the Council to partially or fully fund the development to be considered.

Due to unforeseen market conditions, particularly shifts in the gilt market, the external funding available to Muse for the delivery of this project has significantly reduced. The Council was notified of this issue on the 13 September 2022.

Against this backdrop, the Council has entered into a funding agreement with Muse to fund and retain the project and will take market standard security relating to this funding, including an obligation on Muse to develop in accordance with an agreed specification.

The Council considers that the project is strictly necessary as a key part of the Rotherham Town Centre Masterplan and that acting as funder was the only reasonable option to secure delivery of the project (there being no alternative funding options available within a reasonable timescale or within a cost that would make the scheme viable) and considers that this proposal will secure best value for the Council.

Maintaining the current programme is essential to enable satisfaction of existing contractual obligations with tenants. There was therefore an imperative to act urgently for the following reasons:

• The scheme is anchored by a cinema, which has a date for satisfying conditionality of 31 December 2022. The scheme will no longer be viable if the cinema agreement falls away, setting delivery back likely in excess of 2-3 years and jeopardising the entire delivery of the scheme. Recent developments in the cinema market indicate that identifying a replacement would be very challenging.
• Construction costs for the project had been tendered and fixed for a very limited period. Re-tendering of the construction works would add substantial additional inflationary cost and risk, threatening the viability of the project.

Muse is in an exclusive position as it has developed designs, fully tendered and costed the scheme and has secured pre-lets with various occupiers meaning that competition would be absent for technical reasons. These designs and arrangements with occupiers, which are dependent on the agreement with the cinema proceeding, are exclusive rights that require protection.

Given the complex nature of the project, and the extreme urgency described above, the Council considered that there was not sufficient time to conduct a new procurement procedure. The Council considered an accelerated procurement, concluding that it would be pointless as it would not allow bidders the opportunity to assemble a meaningful costed proposal or to secure deliverable agreements with end users.

The Council therefore considered that it was permitted to utilise the negotiated procedure without prior publication on the basis of exclusive rights as a result of competition being absent for technical reasons (as provided for in Regulation 32(2)(b)(ii)) and, or in the alternative, on the basis of urgency (as provided for in Regulation 32(2)(c)).

On the 26 September 2022, the Council published a F15: Voluntary Ex-Ante Transparency Notice (VEAT) (notice reference: 2022/S 000-026834) setting out its intentions.

Publisher note: It is important to note that at the point of publication of this VEAT, the Council has not formally awarded or entered into the Contract with Muse Developments Ltd, but is setting out its intentions to do so.

• Muse Developments LimitedAwarded supplierGB-COH: 02717800 Kent House, 14-17 Market Place, London, London, W1W 8AJ

No document links were published on the notice.