Contract Modification in Public Procurement Law 2026 – When Is It Permitted?

Definition: A contract modification in the procurement-law sense is any change to an already concluded public contract in relation to its scope of performance, price, term or other material conditions, which under certain conditions can trigger a renewed obligation to tender.

Last updated: January 2026 · Legal basis: Art. 72 Directive 2014/24/EU, § 132 GWB (Germany), § 365 BVergG 2018 (Austria)

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Contract modifications as a core issue in procurement law

The question of when a contract modification triggers a renewed obligation to tender is one of the most practically significant and legally complex issues in procurement law. Without clear rules, public contracting authorities could expand originally tendered contracts at will and so permanently circumvent competition. For the first time, the EU Procurement Directive 2014/24/EU codified, in Art. 72, the conditions under which contract modifications are permissible.

Permitted contract modifications without a new tender

The law permits contract modifications without a new tender in five categories of case:

1. Reserved modification clauses (Art. 72(1)(a))

Where the procurement documents already contain clear, precise and unambiguous modification clauses (e.g. options, price-adjustment clauses), corresponding modifications can be implemented without a new tender. Condition: the clause must have been recognisable to all potential bidders from the outset.

2. Additional services from the same contractor (Art. 72(1)(b))

Additional services that were not included in the original competition but must, for technical reasons, be performed by the original contractor are permitted up to 50 % of the original contract value.

3. Unforeseeable circumstances (Art. 72(1)(c))

For circumstances that a diligent contracting authority could not have foreseen (e.g. unexpected geological conditions on a construction site), modifications up to 50 % of the original contract value are permissible.

4. Change of contractor (Art. 72(1)(d))

In certain circumstances a contractor can be replaced by another (e.g. corporate restructuring, insolvency) without the need for a new procurement procedure.

5. De minimis modifications (Art. 72(2))

Modifications below 10 % (services and supplies) or 15 % (works) of the original contract value, and without a material shift in the overall character of the contract, are always permissible.

Material contract modifications – always subject to tender

A contract modification is to be regarded as material – and thus subject to a new tender – if it:

• Introduces conditions which, had they applied originally, would have enabled the selection of other bidders
• Shifts the economic balance in favour of the contractor
• Significantly extends the scope of the contract
• Replaces the contractor without one of the exceptions applying

Consequences of impermissible contract modifications

Impermissible material contract modifications are treated as a de facto award and can result in the modified contract being void. Companies that have been bypassed may bring review applications.

FAQ

Must every contract modification be documented? Yes. Even permitted contract modifications must be documented and kept on the contract file. In the EU-threshold area, modifications above certain values may also have to be published.

What is a "supplementary agreement" (Nachtragsvereinbarung) for construction contracts? For construction contracts under VOB/B, supplementary works (additional and modified works) are governed by the contract. Supplements are also subject to the procurement-law limits on contract modifications.

Does Art. 72 also apply below the EU thresholds? No, Art. 72 applies only above the EU thresholds. Below the thresholds, national rules apply, although these are similar in content.

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Last updated: January 2026 All information is provided without guarantee. For legally binding advice please consult a law firm specialising in public procurement law.