Procurement Act 2023

74 Modifying a public contract

(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.