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The Utilities Contracts (Scotland) Regulations 2016

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Modification of contracts during their term

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86.—(1) A contract and framework agreement may be modified without a new procurement—

(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, irrespective of their value, 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 utility;

(c)where the need for modification has been brought about by circumstances which a diligent utility could not have foreseen and the modification does not alter the overall nature of the contract or framework agreement;

(d)where a new contractor replaces one to which the utility 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 agreement 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 (7)); or

(f)where paragraph (4) applies.

(2) A utility which has modified a contract or framework agreement in either of the cases described in paragraph (1)(b) or (c) must send a notice to that effect for publication in accordance with regulation 69 (form and manner of sending notices for publication at EU level).

(3) The notice referred to in paragraph (2) must contain the information set out in Annex XVI to the Utilities Contracts Directive.

(4) This paragraph applies where the value of the modification is below both of the following values—

(a)the relevant threshold mentioned in regulation 15 (thresholds); and

(b)10% of the initial contract value for service and supply contracts or framework agreements and 15% of the initial contract value for works contracts or framework agreements,

provided that the modification does not alter the overall nature of the contract or framework agreement.

(5) For the purposes of paragraph (4), where several successive modifications are made, the value must be the net cumulative value of the successive modifications.

(6) For the purpose of the calculation of the values mentioned in paragraph (4)(b) the updated figure shall be the reference figure when the contract or framework agreement includes an indexation clause.

(7) A modification of a contract or a framework agreement during its term must be considered substantial for the purpose of paragraph (1)(e) where one or more of the following conditions are met—

(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, 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;

(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;

(e)a new contractor replaces one to which the utility had initially awarded the contract or framework agreement in cases other than those provided for in paragraph (1)(d).

(8) A new procurement in accordance with these Regulations is required for modifications of the provisions of a works, supply or service contract or a framework agreement during its term other than those provided for in this regulation.

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