Procurement Act 2023

Prospective

Modifying public contracts U.K.

74 Modifying a public contract U.K.

(1) A contracting authority may modify a public contract or a contract that, as a result of the modification, will become a public contract (a “convertible contract”) if the modification—

(a) is a permitted modification under Schedule 8 (permitted modifications),

(b) is not a substantial modification, or

(c) is a below-threshold modification.

(2) A contracting authority may also modify a public contract or a convertible contract if the contract is a light touch contract.

(3) A “substantial modification” is a modification which would—

(a) increase or decrease the term of the contract by more than 10 per cent of the maximum term provided for on award,

(b) materially change the scope of the contract, or

(c) materially change the economic balance of the contract in favour of the supplier.

(4) A modification is a “below-threshold modification” if—

(a) the modification would not itself increase or decrease the estimated value of the contract by more than—

(i) in the case of a contract for goods or services, 10 per cent;

(ii) in the case of a contract for works, 15 per cent,

(b) the aggregated value of below-threshold modifications would be less than the threshold amount for the type of contract,

(c) the modification would not materially change the scope of the contract, and

(d) the modification is not within subsection (1)(a) or (b).

(5) In this section, a reference to a modification changing the scope of a contract is a reference to a modification providing for the supply of goods, services or works of a kind not already provided for in the contract.

(6) For the purposes of subsection (4), the “aggregated value of below-threshold modifications” is the amount of the estimated value of the contract after modification that is attributable to below-threshold modifications.

(7) Subsection (8) applies if, on modifying a public contract under this section, a contracting authority considers that—

(a) the modification could reasonably have been made together with another modification made to the contract under this section, and

(b) that single modification would not have been permitted under subsection (1).

(8) The modification is to be treated as not within subsection (1).

(9) Except as provided for in paragraph 9 of Schedule 8 (modification permitted on corporate restructuring), a contracting authority may not modify a public contract so as to change the supplier.

(10) Part 3 does not apply in relation to a contract to modify a contract where the modification is made in accordance with this section.

Commencement Information

I1 S. 74 not in force at Royal Assent, see s. 127(2)

75 Contract change notices U.K.

(1) Before modifying a public contract or a convertible contract (see section 74(1)), a contracting authority must publish a contract change notice.

(2) Subsection (1) does not apply if—

(a) the modification increases or decreases the estimated value of the contract by—

(i) in the case of a contract for goods or services, 10 per cent or less,

(ii) in the case of a contract for works, 15 per cent or less, or

(b) the modification increases or decreases the term of the contract by 10 per cent or less of the maximum term provided for on award,

unless the modification is a permitted modification under paragraph 9 of Schedule 8 (novation or assignment on corporate restructuring).

(3) A “contract change notice” is a notice setting out—

(a) that the contracting authority intends to modify the contract;

(b) any other information specified in regulations under section 95.

(4) Subsection (5) applies if, on making a modification within subsection (2)(a) or (2)(b), a contracting authority considers that—

(a) the modification could reasonably have been made together with an earlier modification of the contract, and

(b) subsection (1) would have applied to that single modification.

(5) Subsection (1) is to be treated as applying to the modification.

(6) This section does not apply in relation to a modification of a contract that—

(a) is a defence and security contract,

(b) is a light touch contract,

(c) was awarded by a private utility,

(d) was awarded by a transferred Northern Ireland authority, unless it was awarded as part of a procurement under a reserved procurement arrangement or a devolved Welsh procurement arrangement, or

(e) was awarded as part of a procurement under a transferred Northern Ireland procurement arrangement.

(7) A Minister of the Crown or the Welsh Ministers may by regulations amend this section for the purpose of changing the percentage thresholds.

Commencement Information

I2 S. 75 not in force at Royal Assent, see s. 127(2)

76 Voluntary standstill period on the modification of contracts U.K.

(1) A contracting authority may not modify a public contract or a convertible contract before the end of any standstill period (“a voluntary standstill period”) provided for in a contract change notice in respect of the contract.

(2) A voluntary standstill period may not be less than a period of eight working days beginning with the day on which the contract change notice is published.

Commencement Information

I3 S. 76 not in force at Royal Assent, see s. 127(2)

77 Publication of modifications U.K.

(1) Before the end of the period of 90 days beginning with the day on which a contracting authority makes a qualifying modification under section 74(1), the authority must publish a copy of—

(a) the contract as modified, or

(b) the modification.

(2) A “qualifying modification” is a modification—

(a) in respect of which the contracting authority is required to publish a contract change notice under section 75, and

(b) which modifies, or results in, a public contract with an estimated value of more than £5 million.

(3) Subsection (1) does not apply in relation to a modification of a contract that—

(a) was awarded by a devolved Welsh authority, unless it was awarded as part of a procurement under a reserved procurement arrangement, or

(b) was awarded as part of a procurement under a devolved Welsh procurement arrangement.

(4) A Minister of the Crown may by regulations amend this section for the purpose of changing the financial threshold.

Commencement Information

I4 S. 77 not in force at Royal Assent, see s. 127(2)