Közbeszerzési Hatóság

141. §

Contract modification

141. §

1. The provisions set out in this subchapter shall apply to modifications made by the contracting parties or any of the contracting parties entitled to do so and to any change in the legal relationship of the contracting parties in accordance with the stipulations of the contract (hereinafter jointly referred to as ‘contract modification’).

2. Without examining the conditions laid down in paragraph 4 or 6, the contract may be modified without the conduct of a new procurement procedure, if the increase in the counter value occurring as a result of the modification or, where several successive modifications are made the net cumulative value of the successive modifications, does not reach any of the following values:

  1.  EU threshold, in the case of an initial contract reaching EU threshold;
  2. 10% of the initial contract value in the case of public service, public supply and works concession or service concession and 15% of the initial contract value in the case of public works; moreover, the modification does not alter the overall nature of the contract and it is in line with the nature of the initial contract. (This amendment entered into force 1 January 2017.)

3. Paragraph 2 can be applied to contract modifications which lead to a change in the contract value; in the case of modifications affecting more than one elements of the contractual relationship, to the elements of the modification which are related to the change in the value. Paragraph 2 shall not be applied to contract modifications, if the contracting authority launched the public procurement procedure preceeding the conclusion of the contract based on rules, which would not have been lawfully applicable, should the contracting authority have determined the estimated value of the procedure by considering the value following the modification of the contract. (This amendment entered into force on 1 January 2017.)

4. In addition to the situations provided for in paragraph 2, without examining the conditions laid down in paragraph 6, the contract may be modified or may be subject to a change without the conduct of a new procurement procedure in any of the following situations:

  1. where the contract clearly stipulates the precise conditions and content of the subsequent changes of the determined substantial elements of the contract (including the right of option) and those conditions and contents are known in advance by all tenderers. However, such contract terms may not stipulate any modification which would alter the overall nature of the contract;
  2. for additional works, services or supplies by the original contracting party that have become necessary and that were not included in the initial procurement where a change of the contracting party:

    (ba) 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

    (bb) would cause significant inconvenience or substantial duplication of costs for the contracting authority. However, any increase in price or, where several successive modifications are made the net cumulative value of the successive modifications, shall not exceed 50 % of the value of the initial contract.

  3. where all of the following conditions are fulfilled:

(ca) the need for modification has been brought about by circumstances which a diligent contracting authority could not foresee;

(cb) the modification does not alter the overall nature of the contract;

(cc) any increase in price is not higher than 50 % of the value of the original contract. Where several successive modifications are made and those modifications occurred due to several circumstances specified in point (ca) and not interrelated, that limitation shall apply to the net value of each modification. Such consecutive modifications shall not be aimed at circumventing this provision.

5. For the purpose of paragraphs 2 and 4(b) and (c), the updated contract value shall be the reference value for the calculation of the original contract value, when the contract includes an indexation clause in accordance with paragraph 4(a). In case of works and service concessions, when the contract does not include an indexation clause, the updated value shall be calculated on the basis of the annual average inflation rate published by the Hungarian Central Statistical Office.

6. In addition to the situations provided for in paragraph 2 and 4, the contract may be modified without the conduct of a new procurement procedure, if the modification is not substantial. A modification of a contract is substantial, if the essential conditions established by the modification are substantially different compared to those set out in the original contract. A modification of a contract shall always be considered to be substantial, where

  1. the terms affected by the amendment would have allowed the participation of other tenderers (candidates) as well in addition to the original tenderers (candidates) or the success of another tender instead of the successful tender, if those terms had been indicated in the procurement procedure preceding the conclusion of contract;
  2. the amendment shifts the economic balance of the contract in favour of the successful tenderer; or
  3. the amendment extends the subject-matter of the contract over a new, significant element compared to the tenderer’s obligations imposed by the original contract.

7. With the exception of paragraph 4(a), the contracting authority shall publish a notice, in line with the contents of the standard form specified in a separate act of legislation, concerning the modification of the contract.

8. A new procurement procedure shall be required for those modifications of the provisions of a public contract which are not covered by this Article. Where the contract was modified with the unlawful bypass of the procurement procedure, the contract is void in accordance with Article 137(1)(a).