West Marina Land Disposal and Development

CPV: Construction work

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

15 Apr 2021, 13:18 BST

Last source update

15 Apr 2021, 13:18 BST

FTS notice number

2021/S 000-007907

Classification (CPV)

Construction work

Delivery area

South East (UKJ)

Official registry OCID

ocds-h6vhtk-02a654 Find a Tender

Why no open competition

The procurement falls outside the scope of application of the directive

Published justification

The Council considers that the contract between the Council and WMSLL for the West Marina Development and Land Disposal falls outside the scope of Public Contract Regulations 2015 (PCR) as the main object of the transaction is a land transaction and not a public works contract. Therefore the Council relies on Regulation 10(1)(a) PCR, alternatively that the definition of a public works contract is not met.

The Council considers that the contractual arrangements with WMSSL do not fall within the definition of a public works contract for the following reasons:

(1) In respect of the land intended for residential use, the freehold will be transferred to WMSLL for a nominal value. Whilst the Council has stipulated the minimum number of residential units (125) and will be able to request variations to the plans and specifications for the construction of the residential units, WMSLL retain the absolute discretion to approve such variations. In relation to the land intended for the commercial use, the Council will dispose of this by way of a 250 year lease.

The Council has specified a minimum number of 1,500 sqm of buildings comprising workshops / live works space within sui generis use class, 50 beach huts and 12 glamping huts. The Council has the right to approve the planning application in so far as it relates to the commercial development. The Council may (before the development commences) request variations to the plans and specifications for the construction of the commercial developments and WSMLL must not unreasonably withhold its approval of any such variation (although it may do so if the variation would, in WSMLL's reasonable opinion, have a significant adverse financial consequence to WSMLL).

There is no absolute obligation on WMSLL to carry out the works as it has a right to issue a notice of unsatisfactory survey and subsequently terminate the agreement.

(2) In terms of economic benefit, as said above the freehold of the residential units will be transferred to WMSLL following completion of the development albeit that the Council will have pre-emption rights over fifteen residential units for purchase at market value with a 5% discount if the Council purchases six or more units. The Council will not retain nomination rights in relation to the affordable housing units. For the commercial units, in consideration of the grant of the 250 year lease the Council will derive a rent. The rent is fixed at a minimum amount. There is an additional rent paid in the form of 50% of the profits generated by the commercial units once the commercial development has been completed. Given the length of the lease, the Council does not anticipate to obtain an economic benefit from the development itself as by the time the land reverts back to the Council the works are likely to no longer exist.

The Council therefore considers that the contract is outside the scope of the PCR.

Publisher note: Contract Award Value: The total value encapsulates the potential redevelopment of the West Marina site based on its capacity for both commercial and residential redevelopment and represents the gross development value prior to any redevelopment costs. Contract Award Date: The Council agreed initial Heads of Terms with WMSLL at a Cabinet Meeting on 04/03/2019. Subsequent negotiation were held, resulting in confirmation of Heads of Terms in July 2019 by Cabinet.

• West Marina St Leonards LimitedAwarded supplier The St Botolph Building, 138 Houndsditch, London, London, EC3A 7AR

No document links were published on the notice.