Construction work

Tender description

South Tyneside Council (the ‘Council’) conducted a mini-competition pursuant to the Homes England DPP3 framework to appoint a developer to deliver residential development at Holborn, South Shields (the ‘Development’). Following the conduct of the mini-competition, DPP3 panel member, Keepmoat Homes Ltd (‘Keepmoat’) has been selected as the preferred bidder. Keepmoat's submission, as part of the mini-competition, was a joint bid with Cussins (North East) Ltd (‘Cussins’) whereby Cussins will act as a joint developer to deliver elements of the development. The Council intends to enter into agreements with Keepmoat and Cussins in respect of the Development, contractualising the submission as part of the mini-competition. The Council is publishing this notice for full transparency as Cussins is not itself a DPP3 panel member but the Council has procured Keepmoat and Cussins together as a joint submission pursuant to a compliant mini-competition conducted under the framework. As detailed in section II.1.4) of this notice, the Council conducted a compliant mini-competition pursuant to the Homes England DPP3 framework. The opportunity was published on the Due North Portal with reference DN405858 on 22 November 2019 with a tender submission deadline of 14 February 2020. The highest-scoring tender submission, as evaluated on the basis of pre-disclosed evaluation criteria set out in the ITT (and repeated at section II.2.5 of this notice), was a joint submission by Keepmoat and Cussins. The Council is publishing this notice for full transparency in light of the fact that Cussins is not an independent DPP3 panel member, though Keepmoat is. The Council intends to enter into the following agreements in respect of the Development: 1) Supplemental Development Agreement between the Council, Keepmoat and Cussins which provides that, whilst it subsists, certain obligations will be delivered by Cussins not Keepmoat (‘SDA’); and 2) Development agreement between the Council and Keepmoat which shall persist in the event that the SDA is subject to a public procurement challenge (‘DA’). Both the SDA and the DA will be in substantially the form of the draft development agreement circulated with the procurement documents for this opportunity. However, the SDA will: 1) set out where the position in the DA deviates as a result of Cussins' involvement; 2) contain provisions allowing Cussins to draw down building leases for its allocated phases; and 3) include a public procurement termination event clause setting out what the parties will do in the event that there is a public procurement challenge in respect of the SDA. Press releases in respect of the Council's intentions to enter into contract with Keepmoat and Cussins have also been publicised in: 1) The Shields Gazette on 29 April 2020 (https://www.shieldsgazette.com/news/people/south-shields-riverside-regeneration-project-will-create-365-new-homes-takes-step-forward-developer-revealed-2559728); 2) Business live on 29 April 2020 (https://www.business-live.co.uk/economic-development/plans-major-tyneside-housing-development-18173251); and 3) Chronicle live on 30 April 2020 (https://www.chroniclelive.co.uk/news/north-east-news/365-new-homes-final-piece-18175040). In addition, when the ITT for the opportunity was published in November 2019, the constraints reports which accompanied the ITT was in high-level form as a result of the progress of work which had been undertaken at that point. Technical changes have been made to this as a natural consequence of the design proposals for the development being developed through the procurement exercise. The Council is confident that these changes are within the permissible scope of Regulation 72 Public Contracts Regulations 2015 (‘PCR 2015’) and recent caselaw including AEW Europe LLP v Basingstoke and Deane BC (2019) and that the opportunity advertised in the mini-competition has not materially changed in scope since publication of the opportunity in November 2019. The Council is also confident that as Keepmoat is a DPP3 panel member and the DA is in the form of the draft agreement circulated with the procurement documents, even if the SDA is subject to a public procurement challenge, on account of Cussins not being a DPP3 member, the DA itself is not subject to a challenge on the same basis as the SDA.