Contract modification

The rule

Public contracts may be modified during their term without a new award procedure only in the cases provided by article 132 of Law 4412/2016. Any other modification, especially a substantial one, requires a new tender. The logic is obvious: if the authority could freely change the terms after the award, the tender would be a sham.

When it is allowed

• Review clauses. Where the modification was provided for in the original procurement documents in clear, precise and unequivocal clauses, whatever its value. Price adjustment clauses, options, renewals.
• Additional deliveries. Additional works, services or supplies by the original contractor that have become necessary, where a change of contractor is not possible for economic or technical reasons or would cause significant problems. Limit: up to 50% of the value of the original contract per modification.
• Unforeseeable circumstances. Where the need for modification arose from circumstances a diligent authority could not foresee, the overall nature of the contract is not altered and the increase does not exceed 50% of the original value.
• Replacement of the contractor. In case of succession, merger, acquisition or insolvency, by a new contractor meeting the selection criteria.
• Non-substantial modifications. Any modification that is not substantial, whatever its value.
• Minor value. Modifications with a value below the EU thresholds and below 10% of the original value for supplies and services, or 15% for works, without altering the overall nature of the contract, and without any need for justification.

For modifications under the first two cases above the EU thresholds a notice must be published in TED and, for some, an opinion of ΕΑΔΗΣΥ obtained.

What is a substantial modification

A modification is substantial when it renders the contract materially different from the original. The law gives four presumptions: it introduces conditions which, had they been part of the original procedure, would have allowed other participants or the selection of another bid; it changes the economic balance in favour of the contractor; it extends the scope considerably; or it replaces the contractor outside the cases provided. A substantial modification is not allowed, even by agreement of both parties.

What it means for the contractor

Verbal agreements with the department for "a bit more" or for a change of specification do not bind the authority and are not paid unless they take the form of a written modification, approved by the competent organ, with a budget commitment and posting in ΚΗΜΔΗΣ. In addition, the explanations you gave for an abnormally low bid have become part of the contract and cannot be modified. Conversely, competitors who lost the tender may challenge a modification they consider substantial, because it amounts to an unlawful award.