Section one: Contracting authority/entity
one.1) Name and addresses
Oxfordshire County Council
County Hall
Oxford
OX1 1ND
Contact
Ms Amy Keylock
Amy.Keylock@Oxfordshire.gov.uk
Telephone
+44 7392318916
Country
United Kingdom
NUTS code
UKJ14 - Oxfordshire
Internet address(es)
Main address
Buyer's address
one.4) Type of the contracting authority
Regional or local authority
one.5) Main activity
General public services
Section two: Object
two.1) Scope of the procurement
two.1.1) Title
Oxford North Highway Works
Reference number
DN529968
two.1.2) Main CPV code
- 45233120 - Road construction works
- AA01 - Metal
two.1.3) Type of contract
Works
two.1.4) Short description
The proposed agreements will be entered into under Section 278 Highways Act 1980 together with a separate planning obligation pursuant to Section 106 of the Town and Country Planning Act 1990 relating to proposed development at Oxford North (“the Development”) The agreements will contain commitments made by the developer (the “Developer”, named as the contractor/concessionaire in section V.2.3) which are linked to the progress of the Development for the design and execution by the Developer of a series of improvements to the highway infrastructure to facilitate and mitigate the impact of the Development.
two.1.6) Information about lots
This contract is divided into lots: No
two.1.7) Total value of the procurement (excluding VAT)
Value excluding VAT: £10,800,000
two.2) Description
two.2.3) Place of performance
NUTS codes
- UKJ14 - Oxfordshire
two.2.4) Description of the procurement
The proposed agreements will be entered into under Section 278 Highways Act 1980 together with a separate planning obligation pursuant to Section 106 of the Town and Country Planning Act 1990 relating to proposed development at Oxford North (“the Development”) The agreements will contain commitments linked to the progress of the Development for the design and execution of a series of improvements to the highway infrastructure to facilitate and mitigate the impact of the Development.
two.2.11) Information about options
Options: No
two.2.13) Information about European Union Funds
The procurement is related to a project and/or programme financed by European Union funds: No
Section four. Procedure
four.1) Description
four.1.1) Type of procedure
Award of a contract without prior publication of a call for competition in the cases listed below
- The procurement falls outside the scope of application of the regulations
Explanation:
There is a proposed agreement ("the section 278 agreement") which will cover a single set of works required through the planning process for the Development. It is considered that they will not constitute public works for the following reasons:
1. The Section 278 agreement is required to be entered into together with a separate planning obligation pursuant to Section 106 Town and Country Planning Act 1990 and for the same purpose that is to render the Development acceptable in planning terms. The core rationale for this requirement (and the other Section 106 planning obligations) is that they are necessary to enable the grant of planning permission and they are considered to be in compliance with Regulations 122 Community Infrastructure Levy Regulations 2010. Thus, the essential objective of the Section 278 Agreements is for a planning purpose in accordance with the statutory planning regime. It was endorsed in Faraday Development Ltd v West Berkshire Council and St Modwen Developments Ltd (“the Faraday Case) following the principle established in Helmut Muller GMbH v Bundesanstalt fur Immobilienaufgaben- Helmut Muller) that an agreement was not a public works contract where the contracting authority’s primary objective was of a planning nature under the statutory regime.
2. An essential ingredient of a public works contract is that it is for pecuniary interest – see Regulation 2 of the Public Contract Regulations 2015. The Advocate General’s opinion in European Commission v Kingdom of Spain seeks 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. No direct financing will be provided by the contracting authority in respect of the Section 278 agreement. Indirect financing occurs when the contracting authority suffers economic detriment as a result of the method of funding the works. No economic detriment will be sustained by the contracting authority in consequence of entering into the section 278 agreement. The highway works will be delivered in kind rather than through the provision of funding to the contracting authority.
3. Under the Section 278 Agreement there will be no liability for the highway works to be delivered unless the Development is implemented and it is entirely at the discretion of the Developer as to whether the Development is implemented. There is no obligation on the Developer in the Section 278 agreement or the prior S106 agreement to implement the Development. Thus the Section 278 agreement correspond to the Section 106 agreement considered in the case of R (Midlands Co-operative Society Ltd) v Birmingham City Council (1) Tesco Stores Ltd (2) as approved in the Faraday case (paragraph 52) on the basis that the agreement considered in the Midlands Co-operative Society case contained no obligation contingent or otherwise for the carrying out of development.
Notes:
a. The estimated aggregate value of the works further to the Section 278 agreement which the Developer is to undertake is £10.8 million.
b. In the Section 278 Agreement the Developer will undertake a transparent and impartial procurement process for the highway works.
four.1.8) Information about the Government Procurement Agreement (GPA)
The procurement is covered by the Government Procurement Agreement: Yes
Section five. Award of contract/concession
A contract/lot is awarded: Yes
five.2) Award of contract/concession
five.2.1) Date of conclusion of the contract
5 March 2021
five.2.2) Information about tenders
The contract has been awarded to a group of economic operators: No
five.2.3) Name and address of the contractor/concessionaire
Thomas White (Oxford) Limited
8 King Edward Street
Oxford
OX1 4HL
Country
United Kingdom
NUTS code
- UKJ14 - Oxfordshire
National registration number
09602528
The contractor/concessionaire is an SME
Yes
five.2.4) Information on value of contract/lot/concession (excluding VAT)
Total value of the contract/lot/concession: £10,800,000
Section six. Complementary information
six.4) Procedures for review
six.4.1) Review body
Oxfordshire County Council
Oxford
OX1 1ND
Country
United Kingdom