Blog | Procurement: What - How? (issue week 12)

In the world of public procurement, there is an important exception: 'A change may be made if it is not substantial' (Article 2.163g of the Public Procurement Act).

On its own, this is not new information, as even during the Pressetext era*, non-substantial changes were already allowed. Therefore, this exception may seem to require little explanation.

However, Article 2.163g of the Public Procurement Act is interesting due to its structure. Suppose a change is deemed 'substantial' under this article. There is a clear difference between the Pressetext era and the current framework:

• In the Pressetext era, such a change could not be made, as strict adherence to the principle of "pacta sunt servanda" (agreements must be honored) was enforced. 
• With the current system, however, there is more room for flexibility. If a change is substantial according to Article 2.163g, but another exception can be successfully applied, the change may still be implemented. A new procurement process would then not be necessary.

Under the current framework, this means that a substantial change is not automatically prohibited. It depends on whether another exception is applicable. If so, the change can be made without the need for a new procurement process. This does not change the fact that Article 2.163g of the Public Procurement Act remains a distinct exception and basis for changes.

*The Pressetext era refers to a European case from 2003, in which it was emphasized that changes to procurement contracts could only be made if strictly in accordance with the rules. It symbolizes a time of strict compliance with agreements in public procurement.