EPPPL - European Procurement & Public Private Partnership Law Review

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Tünde Tátrai

European Procurement & Public Private Partnership Law Review, Volume 17 (2022), Issue 3, Page 202 - 205

Case C-263/19 T-Systems Magyarország Zrt., BKK Budapesti Közlekedési Központ Zrt. v Közbeszerzési Hatóság Közbeszerzési Döntőbizottság, Judgment of the Court of Justice (Fourth Chamber) of 14 May 2020 Typically, public procurement rules address the preparation of the procedure or the conduct of procedural acts up to the conclusion of the contract. A novelty of the 2014 Directives is that they provide a much wider opportunity for contract amendment, thus the period of performing the contract becomes increasingly emphatic in regulation. CJEU rulings more and more frequently articulate governing interpretations in relation to contract performance in connection with, for instance, the involvement of subcontractors under a public procurement contract. Recently, the CJEU brought an exceedingly important ruling, which considers the relationships of responsibility of the parties in initiating contract amendments. The question does not concern primarily the unlawful amendment of the contract but the issue to what extent the bidder or the contracting party can be made liable for an unlawful contract amendment. In this case, the CJEU regarded it as appropriate to impose a fine on both contracting parties for an unlawful contract amendment.

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

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