European Public Procurement Law
public procurement rules on February 11,
2014, by Directive 2014/246 (the 2014
Directive). Of its key provisions, one should
emphasize two very important changes:
assignment of contracts, and
the introduction of rules allowing for
changes that were contemplated from the
outset or have become necessary in the
course of the contract performance.
C-454/06, the famous Pressetext case,
rendered by the court of justice of the
the evolution of the amendment of
contracts. The ECJ established that if
an amendment constitutes a "material"
modification to the essential conditions of
the initial contract, such amendment shall
qualify as a new contract.
An amendment may be regarded as
material (i) when it introduces conditions
that, if they were part of the initial award
procedure, would have allowed for the
admission of tenderers other than those
initially admitted or would have allowed for
the acceptance of a tender other than the
one initially accepted; (ii) when it extends
the scope of the contract significantly to
cover services initially not encompassed
and (iii) when the economic balance of
the contract is changed in favor of the
contractor in a manner which was not set
forth in the terms of the initial contract.
Pursuant to point 40 of the ECJ's decision,
as a rule, a change in contractor is a
material change triggering a new tender
unless that substitution was provided for
in the terms of the initial contract. It can
also be interpreted that as a rule, the
change in contractor triggers a new tender,
but not always.
Still, the Pressetext case, as well as
others including Succhi di Frutti, Wall
AG, Commission v Germany, Commission v
Spain, have given relatively little certainty
to what "material" really means. There
have been surprisingly few cases that
have looked at this principle in any detail.
For example, Succhi di Frutti established
that there is no material change if the
contract provides relevant detailed rules
for the change, while Wall AG taught us
that substituting a key subcontractor could
constitute a material amendment.
Directive, there are new rules making
it possible for modifications to be made
without breaching the procurement rules.
These changes derive from the Pressetext
case law, but there are significant
clarifications.
The new rules provide a safe harbor
for modifications which are deemed to be
"not substantial," and for which there is
no obligation to re-tender. This includes
modifications where the overall nature
of the contract remains unchanged, the
value of the modification is below the
procurement threshold and:
contract value (for contracts or
framework agreements for supplies or
services); or
contract value (in the case of contracts
or framework agreements for works).
and framework agreements without
a new procurement in the following
circumstances:
provided for in the initial procurement
document and unequivocal review
clauses (including price), provided
that all the conditions are clear and the
modifications and options do not change
the overall nature of the contract.
supplies by the original contractor that
have become necessary, and which were
not included in the contact, and where
a change of contractor cannot be made
for economic or technical reasons or
and European Union law. He also practices in the
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