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Contract Modifications and the CJEU: journal article

The Evolution of Public Procurement Case Law

Ana Lucía Jaramillo Villacís, Ana Isabel Peiró Baquedano

European Procurement & Public Private Partnership Law Review, Volume 16 (2021), Issue 1, Page 78 - 88

Before the publication of the 2014 Public Procurement Directives, the rules on the modification of contracts were not codified. The legislator considered necessary to add a whole new section to clarify the conditions under which modifications to a contract during its performance require a new procurement procedure, taking into account the relevant case law of the Court of Justice of the European Union (CJEU). According to the CJEU rulings, a new procurement procedure is required in case of material changes to the initial contract, in particular to the scope and content of the mutual rights and obligations of the parties, including the distribution of intellectual property rights. Such material changes demonstrate the parties’ intention to renegotiate essential terms or conditions of that contract. To understand the line of reasoning of the Court, this article provides a summary of the landmark cases before, during and after the implementation of the 2014 Directives. Keywords: contract modifications; substantial amendment; material modification; illegal award; essential conditions; renegotiations

EU Public Procurement Law: journal article

Amendments of Public Works Contracts After the Award due to Additional Works and Unforeseeable Circumstances

Vincent P. Wangelow

European Procurement & Public Private Partnership Law Review, Volume 15 (2020), Issue 2, Page 107 - 123

In 2014, a newly enacted set of directives sought to reform the EU Public Procurement Regime, promoting stronger harmonisation but also more flexibility in procurement activities throughout the European Union. Amendments to public contracts after the award have long been a grey area, both for contracting authorities and tenderers alike. However, given the economic importance of public procurement for the European economy, the sound functioning of procurement rules is key. Hence, the article aims to provide a comprehensive evaluation of the new provisions, especially as far as amendments to public works contracts due to the necessity of additional works (following, inter alia, inadequate planning) and unforeseeable circumstances (typically entailing delays, cost overruns etc.) are concerned. In this respect, drawing on sources from legal scholarship of different EU Member States (eg, Germany, France, Spain) and the UK, this article provides an analysis of the rules on post-award amendments to public contracts with an emphasis on Article 72 of Directive 2014/24/EU. To identify the underpinning ideas of these rules, the article considers policy goals and constraints as well as the relevant case law of the Court of Justice of the European Union. Keywords: public works contracts, EU public procurement, amendments, modifications, additional works and unforeseeable circumstances, Directive 2014/24/EU

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