- Latest available (Revised)
- Point in Time (31/12/2020)
- Original (As made)
Point in time view as at 31/12/2020.
The Public Contracts (Scotland) Regulations 2015, Section 72 is up to date with all changes known to be in force on or before 17 August 2024. There are changes that may be brought into force at a future date. Changes that have been made appear in the content and are referenced with annotations.
Changes and effects yet to be applied by the editorial team are only applicable when viewing the latest version or prospective version of legislation. They are therefore not accessible when viewing legislation as at a specific point in time. To view the ‘Changes to Legislation’ information for this provision return to the latest version view using the options provided in the ‘What Version’ box above.
72.—(1) A contract and framework agreement may be modified without a new procurement procedure—
(a)where the modifications, irrespective of their monetary value, have been provided for in the initial procurement documents in clear, precise and unequivocal review clauses, which may include price revision clauses or options, provided that such clauses—
(i)state the scope and nature of possible modifications or options as well as the conditions under which they may be used; and
(ii)do not provide for modifications or options that would alter the overall nature of the contract or framework agreement;
(b)to provide for additional works, supplies or services by the original contractor that have become necessary and were not included in the initial procurement, where a change of contractor—
(i)cannot be made for economic or technical reasons such as requirements of interchangeability or interoperability with existing equipment, services or installations procured under the initial procurement; and
(ii)would cause significant inconvenience or substantial duplication of costs for the contracting authority,
provided that any increase in price does not exceed 50% of the initial contract value;
(c)where all of the following conditions are fulfilled—
(i)the need for modification has been brought about by circumstances which a diligent contracting authority could not have foreseen;
(ii)the modification does not alter the overall nature of the contract or framework;
(iii)any increase in price does not exceed 50 % of the initial contract value or framework agreement;
(d)where a new contractor replaces one to which the contracting authority had initially awarded the contract or framework as a consequence of—
(i)an unequivocal review clause or option in conformity with sub-paragraph (a); or
(ii)complete or partial succession into the position of the initial contractor, following corporate restructuring, including takeover, merger, acquisition or insolvency, by another economic operator that fulfils the criteria for qualitative selection initially established, provided that this does not entail other substantial modifications to the contract or framework and is not aimed at circumventing the application of this Part;
(e)where the modifications, irrespective of their value, are not substantial (as defined in paragraph (8)); or
(f)where paragraph (5) applies.
(2) Where several successive modifications are made—
(a)the limitations imposed by the proviso at the end of paragraph (1)(b) and in paragraph (1)(c)(iii) shall apply to the value of each modification; and
(b)such successive modifications must not be aimed at circumventing these Regulations.
(3) A contracting authority which has modified a contract or framework in either of the cases described in paragraph (1)(b) and (c) must [F1submit] a notice to that effect for publication in accordance with regulation 52 ([F2publication on the UK e-notification service]).
(4) Such a notice must contain the information set out in Part G of Annex V to the Directive [F3, but as if—
(a)paragraph 9 (financing by EU funds) were omitted,
(b)in paragraph 11, “in the Official Journal of the European Union” read “on the UK e-notification service (within the meaning of the Public Contracts (Scotland) Regulations 2015)”, and
(c)in paragraph 12, “date of dispatch” were a reference to the date on which the notice is submitted to the UK e-notification service for the purposes of these Regulations].
(5) This paragraph applies where the value of the modification is below both of the following values—
(a)the relevant threshold mentioned in regulation 5 (thresholds); and
(b)10 % of the initial contract value for service and supply contracts or frameworks and 15% of the initial contract value for works contracts or frameworks,
provided that the modification does not alter the overall nature of the contract or framework agreement.
(6) For the purposes of paragraph (5), where several successive modifications are made, the value must be the net cumulative value of the successive modifications.
(7) For the purpose of the calculation of—
(a)the price mentioned in paragraph (1)(b) and (c); and
(b)the values mentioned in paragraph (5)(b),
the updated figure shall be the reference figure when the contract or framework includes an indexation clause.
(8) A modification of a contract or a framework agreement during its term must be considered substantial for the purpose of paragraph (1)(e) where—
(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 candidates other 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 one to which the contracting authority had initially awarded the contract or framework in cases other than those provided for in paragraph (1)(d).
(9) A new procurement procedure in accordance with these Regulations is required for modifications of the provisions of a public contract or a framework agreement during its term other than those provided for in this regulation.
Textual Amendments
F1Word in reg. 72(3) substituted (31.12.2020) by The Public Procurement etc. (EU Exit) (Scotland) (Amendment) Regulations 2020 (S.S.I. 2020/468), regs. 1(2), 4(50)(a)(i) (with sch. paras. 1-5)
F2Words in reg. 72(3) substituted (31.12.2020) by The Public Procurement etc. (EU Exit) (Scotland) (Amendment) Regulations 2020 (S.S.I. 2020/468), regs. 1(2), 4(50)(a)(ii) (with sch. paras. 1-5)
F3Reg. 72(4)(a)-(c) and words inserted (31.12.2020) by The Public Procurement etc. (EU Exit) (Scotland) (Amendment) Regulations 2020 (S.S.I. 2020/468), regs. 1(2), 4(50)(b) (with sch. paras. 1-5)
The Whole Instrument you have selected contains over 200 provisions and might take some time to download. You may also experience some issues with your browser, such as an alert box that a script is taking a long time to run.
Would you like to continue?
Latest Available (revised):The latest available updated version of the legislation incorporating changes made by subsequent legislation and applied by our editorial team. Changes we have not yet applied to the text, can be found in the ‘Changes to Legislation’ area.
Original (As Enacted or Made): The original version of the legislation as it stood when it was enacted or made. No changes have been applied to the text.
Point in Time: This becomes available after navigating to view revised legislation as it stood at a certain point in time via Advanced Features > Show Timeline of Changes or via a point in time advanced search.
Geographical Extent: Indicates the geographical area that this provision applies to. For further information see ‘Frequently Asked Questions’.
Show Timeline of Changes: See how this legislation has or could change over time. Turning this feature on will show extra navigation options to go to these specific points in time. Return to the latest available version by using the controls above in the What Version box.
Policy Note sets out a brief statement of the purpose of a Scottish Statutory Instrument and provides information about its policy objective and policy implications. They aim to make the Scottish Statutory Instrument accessible to readers who are not legally qualified and accompany any Scottish Statutory Instrument or Draft Scottish Statutory Instrument laid before the Scottish Parliament from July 2012 onwards. Prior to this date these type of notes existed as ‘Executive Notes’ and accompanied Scottish Statutory Instruments from July 2005 until July 2012.
Access essential accompanying documents and information for this legislation item from this tab. Dependent on the legislation item being viewed this may include:
This timeline shows the different points in time where a change occurred. The dates will coincide with the earliest date on which the change (e.g an insertion, a repeal or a substitution) that was applied came into force. The first date in the timeline will usually be the earliest date when the provision came into force. In some cases the first date is 01/02/1991 (or for Northern Ireland legislation 01/01/2006). This date is our basedate. No versions before this date are available. For further information see the Editorial Practice Guide and Glossary under Help.
Use this menu to access essential accompanying documents and information for this legislation item. Dependent on the legislation item being viewed this may include:
Click 'View More' or select 'More Resources' tab for additional information including: