CHAPTER I

GENERAL RULES

Amendments to contracts during their term
Article 8
1
The ECB may amend a contract where the amendment, irrespective of its value, has been provided for in the initial procurement documents in clear, precise and unequivocal review clauses, which may include price revision clauses, or options:
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 amend a contract where the amendment, irrespective of its value, is not substantial.
Amendments shall be considered substantial if they change the overall nature of the contract, 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.
Amendments shall be considered not to be substantial in any circumstances if their cumulative value remains below (a) the relevant threshold 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.
3
In addition, the ECB may amend a contract in the following cases:
a
where the need for an amendment has been brought about by 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
where additional products, services, or works have become necessary which cannot be technically or economically separated from the initial contract without significant inconvenience or substantial duplication of costs.
However, the increase in price 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
A new procurement procedure shall be required for amendments to the initial contract during its term other than those provided for under paragraphs 1 to 5.
Substituted by Decision (EU) 2020/380 of the European Central Bank of 18 February 2020 amending Decision (EU) 2016/245 laying down the rules on procurement (ECB/2020/10).
Substituted by Decision (EU) 2016/956 of the European Central Bank of 7 June 2016 amending Decision (EU) 2016/245 (ECB/2016/2) laying down the rules on procurement (ECB/2016/17).