Blog | Procurement: What - How? (issue week 10)
'Modification of a procurement contract in the event of unforeseeable circumstances.'
Joris Bax, attorney at Brackmann, shares insights and thoughts on current topics within procurement and construction law in his blog 'Tendering: What - How' insights and thoughts on current topics within procurement and construction law.
The past five years have taught us that the ability to amend a contract due to unforeseeable circumstances remains necessary. It is good to know that the Dutch Public Procurement Act (Aanbestedingswet) provides for an exception allowing amendments under unforeseeable circumstances without the need for a new tender process. The following conditions must be met (Article 2.163e Aw):
- The need for the amendment arises from circumstances that a diligent contracting authority could not have foreseen during the preparation of the procurement;
- The nature of the contract does not change;
- The value of the amendment is less than 50% of the original contract value;
- The contracting authority publishes a notice of the amendment on TenderNed.
The first condition stands out the most. When could a diligent contracting authority not have foreseen the circumstances? A ruling from the CJEU provides some guidance (C-441/22; link in the comments). If circumstances occur regularly, such as commonly experienced adverse weather, they are not deemed unforeseeable.
But how far does the duty to investigate extend? In my view, this depends not only on the expertise of the contracting authority but also on the nature of the contract. If the contract is tendered through a specification, the duty to investigate on the part of the contracting authority goes further than in the case of an integrated contract or a construction team. The contractor then has influence over the execution method, and it may be more logical for the contractor to conduct an investigation during the contract phase. The fact that findings are made which the contracting authority itself (reasonably) could have made in the pre-phase does not invalidate the application of Article 163e Aw.
Let’s hope that this article won’t be necessary in the near future.ije toekomst even niet nodig is.
