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Procurement law and development agreements: case law update. Cyrus Mehta, Partner Nabarro LLP. Update. OGC Procurement Policy Note (16 October 2009) – guidance on development agreements AG’s opinion in Helmut Müller (case C-451/08) . OGC guidance. Definition of “works contracts”

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Presentation Transcript
update
Update
  • OGC Procurement Policy Note (16 October 2009) – guidance on development agreements
  • AG’s opinion in Helmut Müller (case C-451/08)
ogc guidance
OGC guidance
  • Definition of “works contracts”
  • Outline specifications
  • Specifications relating to land use planning policies
  • “Mixed” land/works contracts – e.g. covenants to refurbish
  • Need for legally binding contract
  • Building licences
ogc guidance4
OGC guidance

Problem areas:

  • Section 106 Agreements
  • Developer-led projects:
    • para 24 of Guidance
    • development agreements “to safeguard Council’s interests as freeholder”
    • Müller provides some support
  • Regulation 14(1)(a)(iii) exemption – “For technical or artistic reasons, or for reasons connected with the protection of exclusive rights, a public contract may be awarded only to a particular economic operator”
ag m ller
AG - Müller
  • Limits to “functional” interpretation of procurement law in defining works contracts
  • Need for a “direct link” between the public authority and the works:
    • acquisition of ownership/use
    • using public resources – e.g. cheap land
    • initiative taken by public authority
  • New use of planning powers does not suffice
  • Need for contractual obligations to develop
ag m ller6
AG Müller
  • Works concessions
    • “ownership” test
    • limited duration
    • conflicts with City of York/Osbaldwick
    • implications for PFI/PPP contracts
  • Separate but related “land” and “development” transactions must be aggregated