Extension and Variation of Contract for the Provision and Operation of a Materials Recovery Facility to extend contract for 12 months and to include Plastic film packaging and plastic bags

Description

Consideration has been given as to whether the extension and variation of: (1) the Contract for the Provision and Operation of a Materials Recovery Facility between Gateshead Council (on behalf of itself, the Council of the Borough of South Tyneside and the Council of the City of Sunderland ("the Partnership")) and Cumbria Waste Management Ltd (Cumbria Waste) in respect of Lots 1 and 3 dated 14 January 2022 ("Contract 1"); and (2) the Contract for the Provision and Operation of a Materials Recovery Facility between Gateshead Council (on behalf of itself, the Council of the Borough of South Tyneside and the Council of the City of Sunderland ("the Partnership")) and J & B Recycling Limited (J & B) in respect of Lot 2 dated 14 January 2022 ("Contract 2"); for a period of 12 months and the additional inclusion of Plastic film packaging and plastic bags would be permitted under Regulation 72 of the Public Contract Regulations 2015. The modification renders the contract or the framework agreement materially different in character from the one initially concluded - a 12 month extension on the same contract terms, does not render the contract materially different. Furthermore the addition of one material stream (Plastic film packaging and plastic bags) is not considered a material change as this contract is for sorting recyclable materials which includes Plastic film packaging and plastic bags. • In addition to the reliance on the Regulation 72 (1) (e) above, the Council can also seek to rely on Regulation 72 (1) (c). Under this limb of Regulation 72, all of the following conditions must be met (the words in italics set out our reasoning as to why that condition is met): o Brought about by circumstances which a diligent Contracting Authority could not have foreseen - when the current Contract was procured in 2021 the Council could not have foreseen the impact of the change in legislation (specifically, the delayed and upcoming Deposit Return Scheme (DRS) and Simpler Recycling reforms). These changes will significantly affect the types and volumes of materials processed making it difficult to accurately define the requirements of a specification and complete a Procurement process at this time. o Does not alter the overall nature - it is arguable that an extension and modification on substantially the same terms as originally awarded does not alter the nature of the Contract. o The increase in price does not exceed 50% of the original value - The additional 12 month extension and the modification for the inclusion of Plastic film packaging and plastic bags will not exceed 50% of the original value. Various costing exercises using assumptions have been undertaken to support this. Lot 1: Gateshead Gateshead Council, South Tyneside Council and Sunderland City Council have formed The South Tyne and Wear Waste Management Partnership to implement their waste management responsibilities jointly and are represented by Gateshead Council as the lead Authority. This contract is being led by Gateshead Council on behalf of Gateshead Council, South Tyneside Council and Sunderland Councils for the Provision and Operation of a Materials Recovery Facility/ies to include haulage and processing of Authorised Materials and Delivery Points for Gateshead and Sunderland to receive and process Authorised Materials. The Borough Council of Gateshead shall enter into back to back contractual arrangements with its Partner Authorities to pass down the relevant provisions of this Contract/Tender ("the Authority Contracts"). The Authority Contracts shall be implemented by the Borough Council of Gateshead as Lead Authority for the Partner Authorities under the Contract for and on behalf of itself and the Partner Authorities. The requirements of the contract are:- Lot1 - Gateshead • The provision of a Materials Recovery Facility (MRF) to process and sort collected Materials. • The provision of a suitable supporting Delivery Point(s) which will receive the Authorised Materials delivered by Gateshead Council and from which the Contractor will transfer the delivered Authorised Materials to the appropriate Processing Facility • The transfer of the segregated Materials to suitable merchants or re-processors. • The provision of a complete record of all Materials delivered, the interim processors/Outlets and the ultimate destination of each Material • Monthly analysis of the Materials carried out in accordance with the MRF Code of Practice. Lot 2: Sunderland Extension and Variation of Contract for the Provision and Operation of a Materials Recovery Facility to extend contract for 12 months under Regulation 72 of the Public Contract Regulations 2015. Reg 72 (1) (e) the extension of the Contract for a term of 12 months and the inclusion of Plastic film packaging and plastic bags through Simpler Recycling (which was brought in under the Environment Act 2021), may be permitted where the modification, irrespective of its value, is not substantial. A modification will be considered substantial if any of the following conditions are met as set out in Regulation 72 (8). a 12 month extension on the same contract terms, does not render the contract materially different. Furthermore the addition of one material stream (Plastic film packaging and plastic bags) is not considered a material change as this contract is for sorting recyclable materials which includes Plastic film packaging and plastic bags. In addition to the reliance on the Regulation 72 (1) (e) above, the Council can also extend under Regulation 72 (1) (c). Under this limb of Regulation 72, all of the following conditions must be met Brought about by circumstances which a diligent Contracting Authority could not have foreseen - when the current Contract was procured in 2021 the Council could not have foreseen the impact of the change in legislation (specifically, the delayed and upcoming Deposit Return Scheme (DRS) and Simpler Recycling reforms). These changes will significantly affect the types and volumes of materials processed making it difficult to accurately define the requirements of a specification and complete a Procurement process at this time. o Does not alter the overall nature - it is arguable that an extension and modification on substantially the same terms as originally awarded does not alter the nature of the Contract. o The increase in price does not exceed 50% of the original value - The additional 12 month extension and the modification for the inclusion of Plastic film packaging and plastic bags will not exceed 50% of the original value. Various costing exercises using assumptions have been undertaken to support this. Lot 3: South Tyneside Extension and Variation of Contract for the Provision and Operation of a Materials Recovery Facility to extend contract for 12 months under Regulation 72 of the Public Contract Regulations 2015. Reg 72 (1) (e) the extension of the Contract for a term of 12 months and the inclusion of Plastic film packaging and plastic bags through Simpler Recycling (which was brought in under the Environment Act 2021), may be permitted where the modification, irrespective of its value, is not substantial. A modification will be considered substantial if any of the following conditions are met as set out in Regulation 72 (8). a 12 month extension on the same contract terms, does not render the contract materially different. Furthermore the addition of one material stream (Plastic film packaging and plastic bags) is not considered a material change as this contract is for sorting recyclable materials which includes Plastic film packaging and plastic bags. In addition to the reliance on the Regulation 72 (1) (e) above, the Council can also extend under Regulation 72 (1) (c). Under this limb of Regulation 72, all of the following conditions must be met Brought about by circumstances which a diligent Contracting Authority could not have foreseen - when the current Contract was procured in 2021 the Council could not have foreseen the impact of the change in legislation (specifically, the delayed and upcoming Deposit Return Scheme (DRS) and Simpler Recycling reforms). These changes will significantly affect the types and volumes of materials processed making it difficult to accurately define the requirements of a specification and complete a Procurement process at this time. o Does not alter the overall nature - it is arguable that an extension and modification on substantially the same terms as originally awarded does not alter the nature of the Contract. o The increase in price does not exceed 50% of the original value - The additional 12 month extension and the modification for the inclusion of Plastic film packaging and plastic bags will not exceed 50% of the original value. Various costing exercises using assumptions have been undertaken to support this.