Art. 106. Modification of contracts during their term

1. The modifications as well as the variants, of awarded contracts during their terms shall be authorized by the official responsible with the modalities provided in the regulations of the contracting station from whom the official responsible depends. The procurement contracts in the ordinary sectors and in the special sectors may be modified without starting a new procurement procedure in the following cases:

a) where the modifications, irrespective of their monetary value, have been provided for in the initial procurement documents in clear, precise and unequivocal clauses, which may include price revision clauses. Such clauses shall state the scope and nature of possible modifications as well as the conditions under which they may be used, making reference to the variation of prices and standard costs, where defined. They shall not provide for modifications that would have the effect of altering the overall nature of the contract or the framework agreement. For works contracts, the variation of price, both increases or decreases, may be evaluated on the basis of the price list referred to in Article 23, paragraph 7, only with reference to the exceeding part with regard to the 10% of the original price and however at half the size. For services and supplies contracts concluded by aggregating entities the provisions in Article 1, paragraph 511 of law n. 208 of 28 December 2015 remain unaffected.

b) for additional works, services or supplies by the original contractor that have become necessary and that were not included in the initial procurement, where a change of contractor produces the following effects, without prejudice to what provided for in paragraph 7 for contracts in the ordinary sectors:

1) cannot be made for economic or technical reasons such as the respect of the requirements of interchangeability or interoperability with existing equipment, services or installations procured under the initial procurement; and

2) would cause significant inconvenience or substantial duplication of costs for the contracting authority or the contracting entity.

c) where all of the following conditions are fulfilled, with the exception of what provided for contracts in the ordinary sectors under paragraph 7:

1) the need for modification has been brought about by unexpected and unpredictable circumstances for the contracting authority or contracting. In those cases the modifications to the object of the contract shall take the denomination of variant in the course of work. Among the abovementioned circumstances, it is possible to include also the emergence of new legislative or regulatory provisions or provisions of authorities or entities responsible for the protection of relevant interests;

2) the modification does not alter the overall nature of the contract;

d) where a new contractor replaces the one to which the contracting authority or entity had initially awarded the contract as a consequence of one of the following circumstances:

1) an unequivocal review clause in conformity with the provisions set out in letter a);

2) succession into the position of the initial contractor, due to death or contract, also following corporate restructuring, including takeover, merger, division, acquisition or insolvency, of another economic operator that fulfils the criteria for qualitative selection initially established, provided that this does not entail other substantial modifications to the contract and is not aimed at circumventing the application of this Code;

3) in the event that the contracting authority or contracting entity assumes the main contractor’s obligations towards its subcontractors;

e) where the modifications are not substantial within the meaning of paragraph 4. Contracting authorities or contracting entities may define in the procurement documents the thresholds to allow for modifications.

2. Contracts may equally be modified, in cases other than those provided in paragraph 1, without a new procurement procedure in accordance with this Code, where the value of the modification is below both of the following values:

a) the thresholds set out in Article 35;

b) 10 % of the initial contract value for service and supply contracts both in the ordinary sectors and special sectors, or below 15 % of the initial contract value for works contracts both in the ordinary and special sectors. However, the modification may not alter the overall nature of the contract or framework agreement. Where several successive modifications are made, the value shall be assessed on the basis of the net cumulative value of the successive modifications. Where the necessity to modify the contract derives from errors or omissions in the executive project, affecting in whole or in part the realization of the work or its use, it shall be allowed only within the quantitative limits referred to in this paragraph, without prejudice to the responsibility of external designers.

3. For the purpose of the calculation of the price mentioned in paragraphs 1, letters b) and c), 2 and 7, the updated price shall be the reference value when the contract includes an indexation clause.

4. A modification of a contract or a framework agreement during its term shall be considered to be substantial within the meaning of paragraph 1, letter e), where it considerably alters the essential elements of the contract initially concluded. In any event, without prejudice to paragraphs 1 and 2, a modification shall be considered to be substantial where one or more of the following conditions is met:

a) the modification introduces conditions which, had they been part of the initial procurement procedure, would have allowed for the admission of other candidates than those initially selected or for the acceptance of a tender other than that originally accepted or would have attracted additional participants in the procurement procedure;

b) the modification changes the economic balance of the contract or the framework agreement in favor of the contractor in a manner which was not provided for in the initial contract;

c) the modification considerably extends the scope of the contract;

d) where a new contractor replaces the one to which the contracting authority or the contracting entity had initially awarded the contract in other cases than those provided for in paragraph 1, letter d).

5. Contracting authorities or contracting entities having modified a contract in the cases set out under paragraph 1, letters b) and c) shall publish a notice to that effect in the Official Journal of the European Union. Such notice shall contain all the information set out in Annex XIV, part I, letter E, and shall be published in accordance with Article 72 for the ordinary sectors and Article 130 for the special sectors. For contracts with amounts below the threshold set out in Article 35, the publicity takes place at the national level.

6. A new procurement procedure in accordance with this Code shall be required for other modifications of the provisions of a public contract or a framework agreement during its term than those provided for under paragraphs 1 and 2.

7. In the cases referred to in paragraph 1, letters b) and c), for the ordinary sectors the contract may be modified if the eventual price increase does not exceed 50 percent of the value of the initial contract. In the case of several successive modifications, this limitation applies to the value of each modification. These subsequent changes are not intended to circumvent this code.

8. The contracting authority shall notify ANAC of the modifications to the contract referred to in paragraph 1, letter b) and paragraph 2, within thirty days of their completion. In case of failure or late communication, the Authority shall impose an administrative penalty on the contracting authority for an amount between 50 and 200 euros per day of delay. The Authority publishes on the section of the transparent Administration website the list of the contractual changes communicated, indicating the work, the administration or the contracting entity, the contractor, the designer, the value of the modification.

9. Designers are responsible for damages incurred by the contracting authorities as a result of errors or omissions in the design referred to in paragraph 2. In the case of contracts concerning the executive design and execution of works, the contractor is responsible for the delays and burdens resulting from the need to introduce variations during construction due to deficiencies in the executive project.

10. For the purposes of this article, the error or omission of design is considered to be an inadequate evaluation of the state of affairs, the lack of or incorrect identification of the binding technical regulations for design, failure to comply with pre-established functional and economic requirements and resulting from a written test , the violation of the rules of diligence in the preparation of the project drawings.

11. The duration of the contract may only be changed for contracts in progress if an extension option is provided for in the notice and in the tender documents. The extension is limited to the time strictly necessary for the completion of the procedures necessary for the identification of a new contractor. In this case, the contractor is required to perform the services provided for in the contract at the same prices, terms and conditions or more favorable for the contracting authority.

12. If the contracting authority is required to increase or decrease its services up to the fifth of the contract amount during the execution, it may impose on the contractor the execution under the same conditions as the original contract. In this case the contractor can not assert the right to terminate the contract.

13. The provisions of the law of February 21, 1991, n. 52. For the purposes of the objection to the contracting authorities, the assignments of receivables must be concluded by means of a public deed or authenticated private deed and must be notified to the debtor administrations. Without prejudice to compliance with the traceability obligations, the assignment of receivables from tender, concession, design competition, are effective and enforceable to the contracting authorities that are public administrations if they do not refuse them with notification to be notified to the transferor and the transferee within forty-five days from the notification of the assignment. The public administrations, in the contract stipulated or in separate contextual act, can preventively accept the assignment by the executor of all or part of the credits that must come to maturity. In any case, the administration which has been notified of the assignment may oppose to the assignee all the objections opposable to the assignor on the basis of the contract relating to works, services, supplies, planning, with this stipulated.

14. For contracts and concessions with an amount below the Community threshold, the variations in progress of public contracts relating to works, services and supplies, as well as those for amounts less than or equal to 10 per cent of the original amount of the contract relating to contracts equal to or higher than the community threshold, are communicated by the RUP to the Observatory referred to in Article 213, through the regional sections, within thirty days from the approval by the contracting authority for evaluations and possible measures competence. For public contracts of an amount equal to or higher than the community threshold, the changes during construction of amounts exceeding 10% of the original amount of the contract, including the variations during construction referred to the priority infrastructures, are transmitted by the RUP to the ANAC, together with the executive project, at the time of validation and to a special report of the sole responsible of the procedure, within thirty days from the approval by the contracting authority. In the event that the ANAC ascertains the illegitimacy of the variant under construction approved, it shall exercise the powers referred to in Article 213. In the event of non-compliance with the obligations to communicate and transmit the variants during construction envisaged, the administrative pecuniary sanctions referred to in article 213, paragraph 13 apply.