Variations To Development Agreement Found To Breach EU Public Procurement Rules

Under the EU public procurement rules, where material changes are made to a contract awarded by a public authority, particularly those which shift the economic balance in favour of the contractor, the contract should be re-advertised in the OJEU. The English High Court has held that variations to a development contract agreed by Winchester County Council but not advertised in the Official Journal of the EU ('OJEU') were 'material' and therefore in breach of the EU public procurement rules, so forcing the Council to halt its plans (R (on the application of Gottlieb) v Winchester County Council (11 February 2015)).

The variations to a wide ranging development agreement included the expansion of retail development space by 50% which had become available, as a bus station originally envisaged was no longer required – as a result of a decision of the bus operator Stagecoach – and removal of a requirement to provide 35% affordable housing.