Decision (EU) 2016/245 of the European Central BankDangos y teitl llawn

Article 8 Additional products, services and works

1. The ECB may order from the initial contractor additional products, services or works, irrespective of their value, provided that:

(a) the procurement documents include clear and precise review or option clauses that provide for additional products, services or works; and

(b) the additional products, services or works were taken into account when calculating the value of the contract in accordance with Article 5.

The clauses shall state the scope and nature of possible reviews or options and the conditions under which they may be used. They shall not provide for reviews or options that would alter the overall nature of the initial contract.

2. The ECB may order from a contractor additional products, services or works, irrespective of their value, provided that the necessary amendments to the initial contract are not substantial. Amendments shall be considered substantial if they change the overall nature of the contract.

Amendments are presumed not to be substantial if their cumulative value remains below (a) both thresholds set out in Article 4(3), and (b) 10 % of the initial contract value for supply and service contracts or 15 % of the initial contract value for works contracts.

Any amendment beyond these threshold amounts shall be considered substantial, in particular where one or more of the following conditions are met:

(a) the amendment introduces conditions which, had they been part of the initial procurement procedure, would have allowed for the admission of candidates other than those initially selected, or for the acceptance of a tender other than that originally accepted or would have attracted additional participants in the procurement procedure;

(b) the amendment changes the economic balance of the contract in favour of the contractor in a manner which was not provided for in the initial contract;

(c) the amendment extends the scope of the contract considerably;

(d) a new contractor replaces the one to which the initial contract was awarded in cases other than those provided for in paragraph 4.

3. In addition, the ECB may order from the initial contractor additional products, services or works:

(a) if the additional products, services or works become necessary due to circumstances which the ECB, acting diligently, could not have foreseen, provided that the amendment does not alter the overall nature of the initial contract; or

(b) if the additional products, services or works that have become necessary cannot be technically or economically separated from the initial contract without significant inconvenience or substantial duplication of costs.

However, the value of additional products, services or works shall in each single case not exceed 50 % of the initial value of the contract.

4. A contract may be amended by replacing the contractor to which it was awarded with another contractor, as a consequence of either:

(a) an unequivocal, clear and precise review or option clause;

(b) the universal or partial succession into the position of the initial contractor, following corporate restructuring, including takeover, merger, acquisition or insolvency, of another supplier that fulfils the same criteria as were initially applied for the selection of the initial contractor, provided that this does not entail other substantial amendments to the contract and is not aimed at circumventing the application of this Decision; or

(c) the ECB assuming the obligations towards the contractor's subcontractors including the obligation to make payments directly to the subcontractors, where this is provided for in the contract.

5. In connection with initial contracts awarded in accordance with Chapter II, the ECB shall publish a notice in the Official Journal concerning any order of additional products, services or works in accordance with paragraph 3 if the total value of additional products, services or works ordered under such a contract exceeds 50 % of the initial contract value.

6. If none of the conditions set out in paragraphs 1 to 4 are met, contracts for additional products, services or works may only be awarded in accordance with Articles 4 and 6 of this Decision.