VEAT Notice intention to modify a contract for waste disposal services

Concepts

• non-hazardous refuse
• exeter
• mid devon district council
• devon waste management limited
• viridor waste management limited
• waste and rubbish
• waste treatment and disposal
• obligations of devon waste management limited
• devon waste management
• waste disposal agreements

Location

Devon:

Description

On 31 July 1998, Devon Waste Management Limited entered into eight contracts with Devon County Council (DCC) for the disposal and processing of waste in eight district council areas. The waste disposal agreements in respect of the Exeter City Council area, East Devon District Council area, Teignbridge District Council area and Mid Devon District Council remain in force (together, the 1998 Agreements). The rights and obligations of Devon Waste Management Limited under the 1998 Agreements were subsequently transferred to Viridor Waste Management Limited (now renamed Valencia Waste Management Limited) (VWML). On 3 October 2011, the 1998 Agreements were varied by deed (the Modification Order) so that waste previously sent to landfill under the 1998 Agreements could be thermally treated. Pursuant to a deed of variation dated 13 January 2020, the Modification Order was updated to include a fourth waste disposal contract in respect of the Mid Devon District Council area. The 1998 Agreements and the Modification Order are together referred to as the "DCC Contract". Viridor Limited has recently undertaken an internal restructure of its divisional business functions with the creation of three businesses - an Energy business, a Polymers Recovery business and a separate Waste business. As part of this internal reorganisation of the Viridor group of companies, it is intended that the DCC Contract will sit within Viridor Limited's Energy business and so Viridor Limited, VWML and DCC agreed that (pursuant to the terms of the DCC Contract) VWML will novate its rights under the DCC Contract to Viridor Exeter Waste Services Limited ("VEWSL") by way of a deed of novation (the "Deed").

Total Quantity or Scope

This notice is in relation to a novation of contract for waste disposal services.

Award Detail

CPV Codes

• 90513000 - Non-hazardous refuse and waste treatment and disposal services
• 34928480 - Waste and rubbish containers and bins
• 42320000 - Waste incinerators
• 45232470 - Waste transfer station
• 90500000 - Refuse and waste related services

Legal Justification

Modification of a contract without a new competition as permitted under Regulation 72 of the Public Contracts Regulations 2015. Explanation: The DCC Contract contain clear, precise and unequivocal review mechanisms allowing VWML to transfer the benefit of the relevant contract with the prior written consent of DCC, namely: Clause 79.2 of the Modification Order provides that: "...the Contractor shall not sub-contract, assign, underlet, charge, sell, bargain or otherwise deal in any way with the benefit of this Modification Order in whole or in part except with the prior written consent of the Authority, such consent not to be unreasonably withheld." Condition 13 of the 1998 Agreements provides that: "The Authority shall be entitled to assign the benefit of the Contract or any part thereof and shall give written notice of any assignment to the Contractor. The Contractor shall not without the previous written consent of the Authority, which consent shall be in the discretion of the Authority and if given, shall not relieve the Contractor from any liability or obligation under the Contract and the Contractor shall be responsible for the acts, defaults or neglect of any sub-contractor, or assignee, its employees or agents in all respects as if they were the acts, defaults or neglects of the Contractor, its employees or agents:- (a) assign the Contract or any part thereof or the benefit or advantage of the Contract or any part thereof; nor (b) sub-contract the provisions of the Service or any part thereof to any person". Clause 79.2 of the Modification Order and Condition 13 of the 1998 Agreements allow for modification (and therefore novation) of the DCC Contract without a new procurement as: (a) they clearly state (in accordance with Regulation 72(1)(a)(i) of the Public Contracts Regulations 2015) that: (i) the scope of the permitted modification is a transfer of the benefit of the DCC Contract and (ii) that the conditions to such modifications are clearly expressed as being the prior written consent of DCC. (b) they only permit a transfer of the DCC Contract to another entity, they do not provide for modifications that would alter the overall nature of the DCC Contract within the meaning of Regulation 72(1)(a)(ii) of the Public Contracts Regulations 2015.

Other Information

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