Complaints to the E.U. Commission
Hello Folks,
Those of you who have followed the Barbican saga closely will know that S.O.B.has tried in various ways to get to the bottom of the murky waters of the Barbican deal.
The Council has side stepped or ignored our Freedom of Information requests, Our attempt at Judicial Review was thwarted by what I consider to be some very dodgy tactics on behalf of the Council and the Developers they seem to be devoted too
You will also have witnessed the bullying, threats and vilification that members of the ruling party, mainly [Councillor Galloway] have resorted .
Now at last there may be a way to get to the bottom of the murky Barbican waters.
On the 18 01 07 the European Court of Justice ruled in a case known as "Roanne". Prior to this I believe the sale of public land was specifically excluded from the E.C.procurement Laws.
The Judgement has led many legal commentators to believe that the sale of public land is now subject to the procurement rules. This has led me to wonder if a number of anomalies in the Barbican sale can at last be illuminated.
With this in mind and because I believe the Audit Commission is a waste of space, [to chummy with the Council by half, I believe] I have made complaints to the European Commission. Of course I might be wrong and end up with egg on my face but those who know me will know I care little about that!
As always, if you have any comments or suggestions please feel free to send these to saveourbarbican@yahoo.co.uk
Cheers
Ernie
Commission des Communautés européennes:
25 10 08
Commission des Communautés européennes
(Secretary-General)
B-1049 Bruxelles
BELGIUM
Dear Commission
I am writing to you as I believe that European Law on tendering procedure has been broken in at least one way by my local authority, The City of York Council [CYC]. My complaint is about just one aspect of the sale of a public leisure complex comprising sports centre, auditorium, swimming pool, bowling green, car parks and associated land.
The story is complicated and perhaps, if you wish to understand the background, you could do worse than visit the web site, save our barbican york.org.uk [click on “the story so far”]. This history is not completely up to date as, to be frank, we were being bullied so much we became despondent, but I stand by it for truthfulness and certainly nothing on the site has been challenged by CYC or by any individual.
The August 2006 enclosures, a copy letter from CYC Head of Property Services, and the Audit Commission report on the disposal of the Barbican, confirm that the tender exercise was carried out in 2001. The successful bidder was a company named Barbican Venture Ltd [BVL]. The Audit Commission report also gives the financial details of the preferred bid i.e. a capital receipt of £4.125 million, a new public swimming pool to be built by the developers and, most importantly from the point of view of my complaint, a £750 000 capital receipt for the AUDITORIUM. Further to this, the CYC Head of Property’s letter makes it clear that this part of the bid was conditional on the successful Bidder providing an experienced operator to MANAGE THE AUDITORIUM on behalf of the developers.
This arrangement might be viewed as further complicated because CYC was legally and in every other way a principle developer partner.
My concern is the present proposal for the sale of a lease of the WHOLE of the BARBICAN CENTRE; [please see site map]
A description of the Centre can be read at the beginning of “the story so far” but it should be noted that, for the purposes of this complaint, the portion of the Centre that is presently being disposed of does not include the 28 year old swimming and diving pool area, these have recently been demolished by the developers.
The rest of the Centre, now offered to ALL, was built 18 years ago at a 1989 price of £15 million pounds.
Fully equipped, and in pristine condition, I have been advised that this facility might cost almost £40 million today.
CYC intends, in Jan 2009, to grant a 250 year [renewable!] lease of the WHOLE of the Centre to a firm of Night Club operators named Absolute Leisure, [ALL] in exchange for the derisory sum of £750,000 with no rent payable ever. CYC has also granted the proposed new owners every conceivable alcohol and entertainments license, for every inch of the Centre, under the new licensing Laws which now apply in England.
I believe such a building, in the centre of a city like York with such a long rent free lease and the benefit of the all encompassing entertainments and alcohol licenses, will be a very valuable asset to the new owners and this is central to my complaint as to put such a generous offer out to open or even restricted tender would I believe, have attracted a great deal of interest from even the very largest of Entertainment Companies.
No other Company was able to bid for such a lucrative opportunity or was even aware that such a prospect existed and this is my chief concern.
ALL did not take part in any tendering process; instead, in 2004, three years after ALL was described, in BVLs successful tender, as a simple management company working for the developers, they were separated out from the accepted tender and chosen as recipients of this remarkable deal at a private meeting of a few senior Councillors of the ruling group without any recourse to other Councillors or the public.
CYC will probably claim that their extraordinarily generous offer to Absolute Leisure is covered, from the point of view of the procurement laws, by the initial 2001 tender process.
This cannot be so. Nowhere in the tendering documents is there any mention of the likelihood of a future sale of a lease, especially on the advantageous terms I have outlined and this sale must rank as a breach of the procurement Law and post tender negotiation rules.
Absolute Leisure was truly the only deal in town!
So how did this come about?
I refer you to the enclosed copy letter, dated 16 08 06 from CYC Head of Property Services.
Whilst I would dispute some of the information in this document [mainly to do with the relocation of sporting facilities] the section on the final page, entitled “Absolute Leisure Limited” describes the basics of ALL’s involvement.
You will see from this section that the one and only tendering process [in 2001] required the successful bidder to “provide an experienced operator who would manage the Barbican AUDITORIUM on BEHALF OF THE DEVELOPER”. The Developers included CYC itself.
There is a world of difference between this management concept initially required by the CYC procurement process and the extraordinary deal, now offered exclusively to ALL, of ownership by way of a 250 year, renewable, rent free lease with all the benefits of the licenses and permits granted.
I and, I believe most ordinary people; believe that a 250 year renewable lease is as good as forever!
The lease now privately offered can be sold on for profit and rent free, with the additional licensing and permit benefits I have described, will, no doubt, be worth a considerable sum at a not to distant future date.
This, then, is my complaint, the whole concept of the deal shortly to be completed, is so radically different from the initial tender arrangements and so financially onerous to the tax payer that it must breach procurement rules, if not of tender then certainly of Post Tender Negotiation.
If CYC wanted to change the sale agreements, conditions and arrangements so profoundly then they should have re-tendered!
A further anomaly regards the area of the demise of the lease offered to ALL.
This is clearly demonstrated by the enclosed documents. The initial tender arrangements required an entertainment company to manage the AUDITORIUM and a bid of £750,000 was accepted for this.
However, the deal offered to ALL by CYC is for the WHOLE OF THE CENTRE which is a considerably larger area.
In addition to the Auditorium the new arrangement includes the Offices, Reception, Bars, a Restaurant, a gymnasium, a number of rest rooms, changing and shower facilities, together with various sporting activity rooms, maintenance suite, a climbing wall and training hall, the large paved area to the front and an instruction room together with a large sports hall which has now been designated for Casino use.
If CYC maintain that the exclusive lease offered to ALL is within procurement Law by virtue of the 2001 tender process, then they should explain why the area offered is so much larger than merely the Auditorium as described in the enclosed documents.
I believe that this further generosity by CYC to ALL is another breach of Procurement Law and the rules on post tender negotiation.
Notes on Enclosures.
The 16 08 06 Letter from CYC Head of Property Services to CYC Director of City Strategy is self explanatory.
The August 2006 Audit Commission report is enclosed as it corroborates the Property Services letter and, although I find its conclusions confused, it supports the information I have given in the following ways;
1. Confirms that the 2001 tender accepted concerned the Auditorium only, at [1] [2]
2. Confirms that the 2001 tender accepted that the Auditorium was merely to be managed, at [1]
3. Confirms that a, new, separate deal, in breach of 2001 tender arrangement, was offered to ALL in 2004, for a greatly enlarged property, without any tender process taking place, at [4] [10]
This Audit document also hints at the recent history which is as yet un-recorded on the SOB site I.E. the Council actually received very much less for the main site than the successful bidder agreed to pay by tender, and subsequently broke its promise to replace the lost swimming and other sporting facilities on site.
The small aerial map and site drawing are enclosed as visual aids.
The large Absolute Leisure project drawing is enclosed as [1] it clearly shows the area of the Auditorium, shaded green, as featured in the 2001 bid process and [2] the greatly enlarged area, hatched red, offered by way of rent free lease to Absolute leisure.
I realise that your Department is no doubt extremely busy, but as the lease deal is due to be finalised in January 2009 I beg you to give this your urgent attention.
Yours faithfully
Ernest Dickinson
Commission des Communautés européennes:-
26 10 08
Commission des Communautés européennes
(Secretary-General)
B-1049 Bruxelles
BELGIUM
Dear Commission
I wrote to you, dated yesterday, with a complaint about the way in which my local Authority, the City of York Council, [CYC] is proposing to dispose of a sports centre and leisure complex named the Barbican Centre. Whilst reviewing the information I gave you I realised I did not make reference to my motivation in making the complaint.
I wrote to you because of what I have read about the 18 01 07 European Court of Justice decision, C-220/05, and the Advocate Generals opinion [15 06 06] on the “Roanne” case.
It seems to me that if the sale or disposal of Public Land now falls within the Procurement Rules then the proposed lease-off of the Barbican Centre should be subject to the tender rules.
There is a further matter which I would like to bring to your attention. This concerns the sale of the freehold of the part of the site which is coloured green on the small aerial map I supplied with my October 25th letter.
Again this new complaint is subject to whether or not the sale or disposal of Public Land now falls within the Procurement Rules but the preferred bid did emerge after a tender process and the relevant dates may be important.
The E.C.J. decision on C-220/5 is dated the 18 01 07. The Freehold sale of the Barbican site [which excludes the Centre] took place after this date sometime in mid or late 2007.
I refer you to the August 2006 Audit Commission report “Arrangements for the Disposal of the Barbican” which I enclosed in my letter of the 25th.
“Background and introduction
1 In 2000, the Council undertook a Best Value Review of leisure facilities which
highlighted the continued importance of swimming provision to the achievement
of corporate objectives. In August 2001 the tendering arrangements began for the
Barbican site, with the requirement for:
• a pool to remain on site; and
• the auditorium to be refurbished, managed and made available for specified
events.
2 After an appraisal process based on the achievement of these objectives a report
went to the Member Panel recommending selecting the Barbican Venture as the
preferred developer on 31 October 2002. This included:
• £750,000 capital receipt for the auditorium, which is to be refurbished and run
at nil subsidy;
• £4.125 million receipt for the remainder of the site; and
• a new pool.
3 Following legal advice in December 2003 the Council took responsibility for the
development of the pool and a higher capital receipt of £10.33 million was agreed
with Barbican Venture.
4 In February 2004, the Council agreed to separate the Conditional Development
Agreements with Barbican Venture for the auditorium and main development. A
conditional contract was signed with Absolute Leisure Ltd in January 2006 and
they now occupy the site on a short-term lease. The Council is currently finalising
a revised deal with Barbican Venture for the remainder of the site, which is due to
be signed in the near future. The current proposed deal involves:
• no pool provision; and
• a receipt of £7.862 million.”
In fact, the sale price of the land on completion in mid or late 2007 was as little as £6.385 million and, in accordance with CYCs usual generosity and devotion to these developers, included an extra parcel of valuable land adjacent to the site. I described this at the time “as more land for less money”.
If Procurement Law now applies then this remarkable discount of £3.945 million [not counting the value of the extra land] must have been achieved as the result of a Post Tender Negotiation under the rules.
This is my new complaint;
CYC should not have reduced the price at the developer’s behest as this is against E.U. rules.
“The following is an extract from the Office of Government Commerce’s guidance to the EC procurement rules”
The European Commission has issued a statement on post tender negotiations in which it specifically rules out any negotiation on price:
“In open and restricted procedures all negotiations with candidates or tenderers on fundamental aspects of contracts, variations in which are likely to distort competition, and in particular on prices, shall be ruled out; however, discussions with candidates or tenderers may be held only for the purpose of clarifying or supplementing the content of their tenders or the requirements of the contracting authorities, and provided this does not involve discrimination”.
Instead CYC should have re-tendered has they were advised to do at the time.
Yours Faithfully
Ernest Dickinson