Sometimes you need to amend a contract after it’s awarded as a contract variation. How do you do this within the regulations?
In the private sector, a contract variation can be made as long as they comply with the governance process or the procurement policy. Public sector buyers face a more stringent test as set out in The 2015 Regulations. A contract may in some circumstances be varied without the need for a new procurement process.
Regulation 72(1) states that a modification which is provided for in the original contract in “clear, precise and unequivocal” terms will not trigger a new procurement process. The Regulations also expressly provide that a further procurement process is not required where:
(a) the change in value is relatively small (Regulation 72(5));
(b) there are unforeseen circumstances (Regulation 72(1)(c));
(c) additional works, services or supplies necessary and a change in contractor cannot be made for economic or technical reasons (Regulation 72(1)(b)); or
(d) there has been a replacement of the supplier following a corporate restructuring, insolvency or merger, and the new supplier still meets the original selection criteria (this exemption is only available where there is no other substantial modification to the contract: Regulation 72(1)(d)(ii)).
A “substantial” modification not originally provided for under the contract will, however, trigger a further procurement process. A modification will be considered “substantial” if one of the criteria in Regulation 72(8) is met, namely:
(a) the modification renders the contract or the framework agreement materially different in character from the one initially concluded;
(b) the modification introduces conditions which, had they been part of the initial procurement procedure, would have:
(i) allowed for the admission of other candidates than those initially selected;
(ii) allowed for the acceptance of a tender other than that originally accepted; or
(iii) attracted additional participants in the procurement procedure;
(c) the modification changes the economic balance of the contract or the framework agreement in favour of the contractor in a manner which was not provided for in the initial contract or framework agreement;
(d) the modification extends the scope of the contract or framework agreement considerably; or
(e) a new contractor replaces the one to which the contracting authority had initially awarded the contract