Art. 175. Modification of contracts during their term
1. Concessions may be modified without a new award procedure in any of the following cases:
a) where the modifications, irrespective of their monetary value, have been provided for in the initial award documents in clear, precise and unequivocal clauses, which may state the scope and nature of possible modifications or options as well as the conditions under which they may be used. They shall not provide for modifications that would alter the overall nature of the concession. In any case, these same clauses cannot provide for the prorogation of the duration of the concession;
b) for additional works or services by the original concessionaire that have become necessary and that were not included in the initial concession where a change of concessionaire cannot be made for economic or technical reasons such as the respect for requirements of interchangeability or interoperability with existing equipment, services or installations procured under the initial concession and would cause for the contracting authority or entity significant delay or substantial duplication of costs;
c) where all of the following conditions are simultaneously fulfilled:
1) the need for modification has been brought about by circumstances which a contracting authority or entity could not foresee using ordinary diligence;
2) the modification does not alter the overall nature of the concession;
d) where a new concessionaire replaces the one to which the contracting authority or entity had initially awarded the concession as a consequence of either:
1) an unequivocal review clause or option in conformity with point a)
2) to the initial concessionaire succeeds, at the universal or partial level, following corporate restructuring, including takeover, merger, acquisition or insolvency, 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, without prejudice to the authorization of the concessionaire, where required on the basis of the sectorial regulation;
3) in the event that the contracting authority or entity itself assumes the main concessionaire’s obligations towards its subcontractors;
e) where the modifications, irrespective of their value, are not substantial within the meaning of paragraph 7.
2. In the case of hypothesis under paragraph 1, letters a), b) and c), for concessions awarded by contracting authorities, for the purposes of pursuing an activity other than those referred to in Annex II, any increase in value shall not exceed 50 % of the value of the original concession, intended as the value resulting after the award of contract or services or supplies that constitute the subject-matter of the concession. Such consecutive modifications shall not be aimed at circumventing this Code.
3. Contracting authorities stations having modified a concession in the cases set out under paragraph 1, letters b) and c) shall publish, in accordance with what provided for in Article 72, a notice in the Official Journal of the European Union containing the information set out in Annex XI.
4. Concessions may be modified without need of a new concession award procedure, nor to verify if the conditions provided for in paragraph 7, letters a) to d) are respected where the modification is below both of the following values:
a) the threshold set out in Article 351), letter a);
b) 10% of the value of the initial concession.
5. The modification referred to in paragraph 4 may not alter the overall nature of the concession. In case of successive modifications, the value shall be assessed on the basis of the net cumulative value of the successive modifications.
c) For the purpose of the calculation of the value referred to in paragraphs 1, letters a), b) and c), 2 and 4 the updated value shall be the reference value when the concession includes an indexation clause. If the concession does not include an indexation clause, the updated value shall be calculated taking into account the inflation calculated by ISTAT.
6. A modification of a concession during its term shall be considered to be substantial where it significantly alters the substantial elements of the contract that has been initially concluded. In any event, without prejudice to paragraphs 1 and 4, 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 initially included, would have allowed for the admission of applicants other than those initially selected or for the acceptance of a tender other than that originally accepted, or would have allowed wider participation to the award procedure;
b) the modification changes the economic balance of the concession in favor of the concessionaire in a manner which was not provided for in the initial concession;
c) the modification considerably extends the scope of the concession;
d) where a new concessionaire replaces the one to which the contracting authority or entity had initially awarded the concession in cases other than those provided for under paragraph 1, letter d).
7. A new concession award procedure shall be required for other modifications of the provisions of a concession during its term than those provided for under paragraphs 1 and 4.
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