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Procurement law and development agreements: case law update

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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Procurement law and development agreements: case law update

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  1. Procurement law and development agreements: case law update Cyrus Mehta, Partner Nabarro LLP

  2. Update • OGC Procurement Policy Note (16 October 2009) – guidance on development agreements • AG’s opinion in Helmut Müller (case C-451/08)

  3. 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

  4. 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”

  5. 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

  6. 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

  7. Procurement law and development agreements case law update Cyrus Mehta, Partner Nabarro LLP

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