However, there is no doubt that the judgment creates increased uncertainty for local authorities exercising their development powers and that a more cautious approach is likely in the future, given that more transactions are subject to public procurement rules, particularly where an option is highly likely to be exercised. Similarly, in Commission/France10, the ECJ clarified that the exercise of an option (for the provision of certain works) as part of a public contract made following a tendering procedure would only be valid if the initial allocation procedure had been designed to take into account the possibility of exercising that option. , z.B. by formulating appropriate attribution criteria to evaluate bidders` bids for the (possible) exercise of this option. In other words, without evidence that the option has been fully “tested” in a compliant procurement procedure, the subsequent exercise of this option would be contrary to public procurement law. In that case, too, the Court of Appeal`s decision is consistent with the ECJ`s approach. The judgment provides useful guidance on the approach to be taken in considering the application of public procurement law to development agreements. It is perhaps not surprising that it is necessary to take into account the content and not just the form of the contractual agreements in question. As a result of this ruling, the authorities should also check when and how they use VEAT notifications. If an authority is truly convinced that it is entering into an agreement outside the scope of the public procurement regime, but is concerned about how others might use it, a VEAT communication can help protect the Authority or, at the very least, help address any potential challenges that might be resolved.
However, it is unlikely that a VEAT notice will protect an authority that has decided to conduct a transaction without complying with the rules applicable to public procurement, even though it considers the rules to be applicable. The West Berkshire case emphasized the importance of including detailed and accurate information in the VEAT communication so that the actual nature of the transaction is obvious. If a public authority publishes a VEAT notice, which is very detailed, it may be invalidated in the event of a challenge.