Meadows Phase 2B/ 2C Student Accommodation Project

CPV: Accommodation and office services · Building and facilities management services · Building construction work · Construction-related services · Miscellaneous repair and maintenance services · Repair and maintenance services of building installations

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

Services

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

24 May 2021, 12:12 BST

Last source update

18 Aug 2021, 15:20 BST

FTS notice number

2021/S 000-020228

Classification (CPV)

Accommodation and office servicesBuilding and facilities management servicesBuilding construction workConstruction-related servicesMiscellaneous repair and maintenance servicesRepair and maintenance services of building installations

Delivery area

East of England (UKH3)

Official registry OCID

ocds-h6vhtk-02b43f 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

Published justification

The Contractor is the only economic operator which can deliver the development due to the existence of exclusive rights owned by it in connection with the services required (pursuant to Regulation 32(2)(b)(iii) of the Public Contracts Regulations 2015). Those rights exist pursuant to restrictive covenants under existing agreements entered into by the University, and thus the Contractor has an exclusive right in connection with the services required pursuant to Regulation 32(2)(b)(iii) of the Public Contracts Regulations 2015.

In 2012, the University sought partners to design, build, finance and maintain 648 new student bedrooms, together with the potential leasehold sale of an established development comprising 767 bedrooms ("Phase 1"). ULiving Consortium were identified as the successful tenderer, and subsequently entered into contract (via a special purpose vehicle called ULiving@Essex Limited) with the University to deliver Phase 1. In line with market norms, the Phase 1 documentation contained a Restrictive Covenant which restricted the University's ability to provide additional student accommodation unless certain tests were met. Contracts relating to the development of additional student residences ("Phase 2A") were entered into with the ULiving Consortium (via ULiving@Essex2 Limited) pursuant to a Voluntary ex Ante Transparency Notice (published 23 May 2015), delivering 643 bedrooms (on a design, build, finance and maintenance basis) adjacent to Phase 1. The VEAT Notice was used as the Restrictive Covenant tests on Phase 1 were not satisfied. In line with market norms, the Phase 2A documentation contained a Restrictive Covenant which restricted the University's ability to provide additional student accommodation unless certain tests were met.

The University wishes to contract for the provision of a further 1,262 units of student residential accommodation on a design, build, finance and operate basis. The Restrictive Covenants on Phases 1 and 2A prevent the University from carrying out the development without the consent of companies related to the Contractor unless certain tests are satisfied.

The tests are:

(a) for each of the previous three (3) consecutive Contract Years the ratio of Total Student Demand to Total Bed Supply has not fallen below 1.5:1.00;

(b) the number of proposed further rooms is such that when occupied the ratio of Total Student Demand to Total Bed Supply will not fall below 1.5:1.00 for the following three (3) Contract Years assessed on the basis of the University's projected student number returns to HEFCE (now HESA);

(c) for each of the previous three (3) consecutive Contract Years at least ninety eight per cent (98%) of the Rooms within the Accommodation have been occupied for the whole of the relevant Letting Period. Test (a) was not met for the Contract Years 2017/18 and 2018/19 and test (c) has not been satisfied. This is the case for both Phases 1 and 2A. The companies related to the Contractor (such related companies being ULiving@EssexLimited and ULiving@Essex2 Limited) will only consent to the development taking place if it is carried out by the Contractor (via ULiving@Essex3 LLP). The Contractor therefore has exclusive rights to carry out the development.

Publisher note: NOTE: the below has been taken from VI.3) Additional information of VEAT The tests referred to above are: (a) for each of the previous three (3) consecutive Contract Years the ratio of Total Student Demand to Total Bed Supply has not fallen below 1.5:1.00; (b) the number of proposed further rooms is such that when occupied the ratio of Total Student Demand to Total Bed Supply will not fall below 1.5:1.00 for the following three (3) Contract Years assessed on the basis of the University's projected student number returns to HEFCE (now the Higher Education Statistics Agency - "HESA"); (c) for each of the previous three (3) consecutive Contract Years at least ninety eight per cent (98%) of the Rooms within the Accommodation have been occupied for the whole of the relevant Letting Period. Phase 1 Definitions Total Student Demand means all full time University Students who are, in the relevant Contract Year, enrolled at the University and based at the Colchester Campus less University Students who live prior to the relevant Contract Year within Essex, Bedfordshire, Cambridgeshire, Hertfordshire, Norfolk or Suffolk who are not currently living in Term Time Accommodation as measured by HESA data subject to the University reserving the right to revise the HESA data where they are reasonably able to demonstrate that such HESA data includes material factual inaccuracies in relation to the origin of Qualifying Students to the reasonable satisfaction of the Service Provider (ULiving@Essex Limited). Total Bed Supply means: (a) existing University accommodation within the Colchester Campus; and (b) the Phase 1 Accommodation; and (c) any Relevant Arrangements allowed under the Phase 1 Project Agreement (including approved or anticipated accommodation to be developed but not yet available); (d) any accommodation which the University is at the relevant time proposing to become the subject of a Relevant Arrangement; and (e) the University's accommodation at The Maltings. Contract Year means the period from 7 August 2012 until 31 August 2013 and each successive twelve month period thereafter commencing on 1 September in each year. Relevant Arrangement means any agreement or arrangement concerning the construction and/or refurbishment and/or provision of residential accommodation to be let (whether by tenancy, licence, nominations agreement or otherwise) to Qualifying Persons (registered full-time students of the University or another Higher Education institution) by or on behalf of the University or the University Group or by any other person in cooperation with the University. The Phase 2B/2C contract is a Relevant Arrangement. Letting Period means the period identified in each Licence being either (a) thirty nine (39) weeks; or (b) fifty (50) weeks. Phase 2A Definitions Total Student Demand means all full time University Students who are, in the relevant Contract Year, enrolled at the University and based at the Colchester Campus less University Students who live prior to the relevant Contract Year within Essex, Bedfordshire, Cambridgeshire, Hertfordshire, Norfolk or Suffolk who are not currently living in Term Time Accommodation as measured by HESA data subject to the University reserving the right to revise the HESA data where they are reasonably able to demonstrate that such HESA data includes material factual inaccuracies in relation to the origin of Qualifying Students to the reasonable satisfaction of the Service Provider (ULiving@Essex2 Limited). Total Bed Supply means: (a) existing University accommodation within the Colchester Campus; and (b) the Phase 2A Accommodation; and (c) any Relevant Arrangements allowed under the Phase 2A Project Agreement (including approved or anticipated accommodation to be developed but not yet available); (d) any accommodation which the University is at the relevant time proposing to become the subject of a Relevant Arrangement; and (e) the University's accommodation at The Maltings. Contract Year means the period from 31 May 2017 until 31 August 2017 and each successive twelve month period thereafter commencing on 1 September in each year. Relevant Arrangement means any agreement or arrangement concerning the construction and/or refurbishment and/or provision of residential accommodation to be let (whether by tenancy, licence, nominations agreement or otherwise) to Qualifying Persons (registered full-time students of the University or another Higher Education institution) by or on behalf of the University or the University Group or by any other person in cooperation with the University. The Phase 2B/2C contract is a Relevant Arrangement. Letting Period means the period identified in each Licence being thirty nine (39) weeks. Outcome Test (a) was not met for the Contract Years 2017/18 and 2018/19 and test (c) has not been satisfied. This is the case for both Phase 1 and Phase 2A

• ULiving Consortium (acting via ULiving@Essex3 LLP)Awarded supplier 3rd Floor South Building, 200 Aldersgate Street, London, UK, EC1A 4HD

No document links were published on the notice.