contract modification

Contract modification refers to changes made to a public contract after it has been awarded and signed. While adjustments are often necessary during the life of a contract, EU procurement law sets strict boundaries on which changes are permissible without launching a new tender procedure.

How does contract modification work?

The rules are codified in Article 72 of EU Directive 2014/24/EU. The core principle is that non-substantial modifications are permitted. The Directive identifies six categories of permissible changes that do not require a new procurement:

• Review clauses — modifications clearly provided for in the original tender documents with precise scope and conditions
• De minimis changes — price increases below the relevant EEA threshold and not exceeding 10% of the contract value (15% for works contracts)
• Additional deliveries — necessary supplementary works, services or supplies from the original contractor
• Unforeseen circumstances — changes a diligent contracting authority could not have foreseen, capped at a 50% price increase
• Contractor replacement — permitted following restructuring such as mergers, acquisitions or insolvency
• Non-substantial modifications — a general safety net where the overall nature of the contract remains unchanged

Modifications based on additional deliveries or unforeseen circumstances must be published in the Official Journal (TED).

When is a modification substantial?

Under Article 72(4), a modification is always considered substantial if it:

• Introduces conditions that would have attracted other tenderers or led to a different award
• Shifts the contract's economic balance in favour of the contractor
• Extends the scope of the contract considerably
• Replaces the contractor outside the permitted exceptions

A substantial modification is treated as an illegal direct award — effectively a new contract concluded without competition. In Norway, KOFA can impose administrative fines of up to 15% of the contract value for such breaches. Tools like Cobrief can help suppliers track contract terms and amendment clauses, making it easier for both parties to stay within the rules.

Contract modification rules aim to balance flexibility with fair competition. Contracts often span several years and some adaptation is inevitable, but changes must not go so far as to deny other suppliers the chance to compete. Systematic contract monitoring with proper documentation of all changes is the best safeguard against inadvertently crossing the line.