The question of when a public contract can be modified, without the necessity of engaging in a new procurement, is one that continually arises in practice and often raises difficult issues of judgment. While the issue arises in respect of all kinds of public contracts, it arises very frequently in areas such as IT contracts, where the prospect of changing systems or equipment can lead a contracting authority to consider how it might be able to extend its current contract without having to go to tender.
In EU law, the rules relating to the main regime are set out in Article 72 of Directive 2014/24, which to a large extent codifies earlier case law of the Court of Justice. Article 72 specifies particular kinds of modifications which may be permissible, and the conditions for their application. For example, a modification may be permitted if provided for in the original procurement documents (Art. 72(1)(a)), where additional services are required but a change of contractor cannot be made for technical reasons (Art. 72(1)(b)) or where a modification arises due to unforeseen circumstances (Art. 72(1)(c)). There is also a safe harbour contained in Article 72(2), where the modification is worth less than 10% (or 15% in the case of works) of the original contract.
When faced with a situation where a contractual relationship must be continued beyond the term of the contract, it may also be relevant for a contracting authority to consider the potential application of Article 32 of Directive 2014/24, which contains rules for the use of the negotiated procedure without prior publication (in effect, a direct award).
The modification provisions of the UK Procurement Act 2023 are not dissimilar to those in Directive 2014/24 (for example, the same 10/15% safe harbour applies) although in a number of respects appear to be more specific. Permitted modifications are specified in Schedule 8 of the Act. Before a modification is made, a contract change notice must be published, although this is not required for modifications within the safe harbour (section 75).