Conflicts of interests and tenderers’ prior involvement in the preparation of a procurement UrT 2024 no 3 p. 189
Conflicts of interests and tenderers’ prior involvement in the preparation of a procurement UrT 2024 no 3 p. 189
Ten years ago, the 2014 procurement directives were the first among the EU directives regulating public procurement, to introduce explicit rules for changing public contracts. The purpose for that update to the directives was two-fold: firstly, to codify the accumulated case-law, most importantly the landmark decision of Pressetext, and secondly, to provide legal clarity via simplification of the rules on contract changes created in the earlier case-law. The latter pursuit is demonstrated by introduction of the list of amendments justified by default in Art 72 (1) – (2) of the Directive 2014/24/EU and the corresponding articles of Directive 2014/23/EU and 2014/25/EU.
On the one hand, contract modification rules serve the purpose of increasing the efficacy of the general principles of the EU law by making sure that the contract performance stage would not counteract to or essentially nullify the heavily regulated and closely supervised contract award stage. On the other hand, the same body of rules protects interests of the contracting parties by allowing for much needed flexibility during the contract performance stage. Crucial for pursuing both of those aims is assessment of the alternative to a change – the need to retender the concerned contract.
While the 2014 rules related to contract changes have certainly eased the application of EU procurement law, the 10-year period has also brought up new types of legal difficulties in public contracting practice. We submit that three types of legal issues have gotten the most attention both in practice and in legal research.
Firstly, the scope of the contract changes’ regulation can be questioned. For instance, are changes to framework agreements subject to specific distinctions? Furthermore, what about public contracts concluded outside the EU procurement directives based on some exception? A recent CJEU’s judgement in the case offers an example: case of modifying an in-house contract. Also, procurement practice seems to point to a gap in the regulation when a de facto modification influences the performance of a public contract without the presence of any express agreement to modify the contract terms. We will look at those issues related to the regulation’s scope in part 2.
Secondly, caused by the demanding global events of recent years, practitioners as well as researchers have struggled with cases of contract changes caused by the pandemic and thereafter the war in Ukraine. In particular, the regulation of modifications due to unforeseen circumstances as established in the Directive’s Art 72(1)(c) has been tested. We will sum up the lessons learned from those recent crises and provide respective suggestions in part 3 of the article.
Thirdly, we submit that the current regulation may lack a critical part of default rules. Namely, art 72 of the Directive 2014/24/EU lacks clear guidance regarding changing contract periods or deadlines. We will look at amendments to contract periods or deadlines in part 4 of this article.
Mari Simovart & Mario Sõrm
PDF: 10 years of changing contracts: for better or for worse? UrT 2024 no 3 p. 215
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