Contract amendment By Francois Lichere Professor of Public Law, University of Lyon 3, France

Introduction Need for amendment: the theory incomplete contracts in the field of public procurement Main reasons of amendment in practice: Not specific to public procurement:difficulties to fully identify scope and requirements in advance with complex contracts, lack of anticipation; need to hand over the contract to third parties Specific to public procurement: general interest; not easy to adapt specifications during the award process; question of technical competence or willingness of blurred contract ?

Introduction Issues of amendment of public procurement contracts: conflict between freedom of contract and free access to public procurement Important amendments may be considered as a new contract and, as such, subject to a duty to retender as opposed to freedom of contract

Introduction Limitations existed in national case law generally but not at EU level until ECJ 2008 Pressetext: examples of what is a material amendment No impact of the “intention” since then Explicited by the new directives Right balance between contradictory principles ? Distinction between material amendment and amendment to parties of the contract (transfer of contract between economic operators)

1. A relative flexible approach regarding material amendments Art. 72 of Directive 2014/24 allows for 3 possibilities of amendments (in the wrong order): No limitation if the amendment is not substantial: what is not substantial is not clearly defined only through examples taken from the Pressetext case Deminimis : extended from 5 to 10 % (15 % for public work contracts) on the condition that thresholds rea respected; however amendment do not necessarily entail additional costs

1. A relative flexible approach regarding material amendments 3 substantial amendments are allowed: If clear, precise and unequivocal review clause If unforeseeable circumstances for the contracting authority If for additional works, services or supplies limitations: no change of the overall nature of the contract for some of the substantial amendments and a 50 % maximum increase of price for the last two Overall assessments of amendments: allows for important changes in value: 10%, 15%, 50%, no limit if not substantial or clause

1. A relative flexible approach regarding material amendments Issues at stake: Is general interest protected? What is a clear clause? Are the interpretation of substantial amendment consistant with economic considerations? See ECJ Finn Frogne 2016 (c-549/14) Compare with Conseil d’Etat 2017 Ville d’Aix en Provence

2. A less flexible approach regarding the transfer of public contracts By principle, a transfer of public contract is deemed as a new contract and should therefore be retender; reverse principle compared to some member states law which only demanded prior authorization by public authorities In line with the suspicion of directives towards contracting authorities and in favor of a free access to public procurement contracts for undertakings: EU public procurement is based on protection of the Offer rather than of the Demand contrary to traditional member states law

2. A less flexible approach regarding the transfer of a public contract Article 72 allows only transfer in 3 restrictive situations: unequivocal review clause universal or partial succession into the position of the initial contractor, following corporate restructuring, including takeover, merger, acquisition or insolvency, of another economic operator that fulfils the criteria for qualitative selection initially established provided that this does not entail other substantial modifications to the contract and is not aimed at circumventing the application of the Directive in the event that the contracting authority itself assumes the main contractor’s obligations towards its subcontractors where this possibility is provided for under national legislation

2. A less flexible approach regarding the transfer of a public contract Same uncertainty regarding the review clause Additional request: change of subscontrator may not be allowed (see the Wall case) Remaining questions: bankrupt companies, change in the consortium: lessons from the Hojgaard case

Conclusion Need for a new remedy (Tyrole/Saussier 2015) ? Not necessarily, adaptation of existing ones is a possibility Is the case law will take into consideration particularities of contracting authorities ?