Development Agreements And Public Procurement

12. See paragraph 70 of the Court of Appeal`s decision, which states that “there is no evidence in this case that the Commission acted in bad faith at any time, nor that there was a reason for misper understanding of its objectives in concluding the development agreement or the “economic reality” of the merger.” The Court of Appeal also considered whether the Commission had deliberately and unlawfully avoided the public procurement regime. However, the Court of Appeal stated on this point in favour of the Council: “It cannot be said that the underlying purpose of the option provisions contained in the development contract or in the development contract as a whole was an illegal objective, even though the development agreement itself should have been the subject of an award procedure.” The economic and commercial reality had been fully highlighted by the development agreement and not obscured. It was not a ticket. It is not inherently illegal for the Commission to seek a legitimate contract with a developer that is beyond the scope of public procurement. The VEAT communication did not meet the requirements of the Fastweb Tribunal. In the notice of contract, the main purpose of the agreement was described as an “exempt ownership transaction.” The court said it was “false or, at best, misleading.” This development extended “much further” than a land transfer or transfer transaction and included complex arrangements for the design and construction of a large construction. The Court of Appeal`s decision is also instructive in clarifying that the mere assertion that the contract to be awarded is a species that is not subject to the contracting regime is not sufficient to fulfill (precisely) the obligations arising from the regulations describing the purpose of the contract and on the grounds that it is exempt from advertising obligations. The Court of Appeal disagreed. Although the development contract was not immediately a public works contract, as it did not include immediately enforceable construction obligations for the developer, the Commission contractually undertook, in concluding the agreement, to procure works from the developer if the developer decided to exercise the option in its favour. The development agreement was therefore a procurement process and the procurement process should have been followed. The case not only provides important guidance for the establishment of effective VEAT communications, but also suggests that the contracting powers cannot consider that the procurement rules do not apply simply because there is no immediate enforceable obligation to carry out work.

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