Article 120. Modification of contracts in progress.

1. Without prejudice to the provisions of article 60 for price review clauses, procurement contracts may be modified without a new award procedure in the following cases, provided that, in the cases provided for in letters a) and c), despite the modifications , the structure of the contract or framework agreement and the underlying economic operation can be considered unchanged: a) if the modifications, regardless of their monetary value, have been provided for in clear, precise and unambiguous clauses of the initial tender documents, which may also consist of option clauses; for contracts relating to services or supplies stipulated by aggregators, the provisions of article 1, paragraph 511, of law no. 28 December 2015 remain unchanged. 208; b) due to the arising need for additional works, services or supplies, not foreseen in the initial contract, where a change of contractor at the same time: 1) is impracticable for economic or technical reasons; 2) causes significant inconvenience or a substantial increase in costs for the contracting authority; c) for variations during construction, to be understood as modifications made necessary during the execution of the contract due to unforeseeable circumstances on the part of the contracting authority. These circumstances include new legislative or regulatory provisions or provisions issued by authorities or bodies responsible for the protection of significant interests; d) if a new contractor replaces the successful tenderer due to one of the following circumstances: 1) the subjective changes involving the replacement of the original contractor are foreseen in clear, precise and unambiguous clauses of the tender documents; 2) the successful tenderer is succeeded, due to death or insolvency or following corporate restructuring, which involves succession in pending relationships, by another economic operator who satisfies the initial selection criteria, provided that this does not imply further substantial changes to the contract and does not is aimed at evading the application of the code, without prejudice to the provisions of article 124; 3) in the event that the contracting authority assumes the obligations of the main contractor towards its subcontractors. 2. In the cases referred to in paragraph 1, letters b) and c), the contract can be modified only if the possible increase price does not exceed 50 percent of the value of the initial contract. In the case of multiple subsequent modifications, the limitation applies to the value of each modification. Such subsequent modifications do not circumvent the enforcement of the code. 3. Contracts may also be modified, in addition to what is provided for in paragraph 1, without the need for a new procedure, provided that despite the modifications, the structure of the contract or framework agreement and the underlying economic operation can be considered unchanged, if the value of the modification is below both of the following values: a) the thresholds set in Article 14; b) 10 percent of the initial contract value for service and supply contracts; 15 percent of the initial contract value for works contracts; in the event of multiple subsequent modifications, the value is ascertained on the basis of the overall value of the contract net of subsequent modifications. 4. For the purposes of calculating the price referred to in paragraphs 1, letters b) and c), 2 and 3, when the contract provides for an indexation clause, the reference value is the updated price. 5. They are always permitted, regardless of their value, the changes are not substantial. 6. The modification is considered substantial when it significantly alters the structure of the contract or framework agreement and the underlying economic operation. In any case, without prejudice to paragraphs 1 and 3, a modification is considered substantial if one or more of the following conditions occur: a) the modification introduces conditions which, if they had been contained in the initial procurement procedure, would have allowed to admit candidates other than those initially selected or to accept an offer other than the one initially accepted, or would have attracted additional participants in the procurement procedure; b) the modification changes the economic balance of the contract or framework agreement in favor of the successful tenderer in a way not foreseen in the initial contract; c) the amendment significantly extends the scope of the contract; d) a new contractor replaces the one to whom the contracting authority had initially awarded the contract in cases other than those provided for in paragraph 1, letter d). 7. The modifications to the project proposed by the contracting authority or by the contractor with which, in compliance with the functionality of the work: a) ensure savings, compared to the initial forecasts, to be used as compensation to deal with the increasing variations in processing costs; b) equivalent or improved solutions are created in terms economic, technical or completion times of the work. 8. The contract can always be modified pursuant to article 9 and in compliance with the renegotiation clauses contained in the contract. In the event that these are not foreseen, the request for renegotiation must be made without delay and does not, in itself, justify the suspension of the execution of the contract. The RUP shall formulate the proposal for a new agreement within a period not exceeding three months. In the event that a new agreement is not reached within a reasonable time, the disadvantaged party may take legal action to obtain the adaptation of the contract to the original balance, without prejudice to liability for the violation of the renegotiation obligation. 9. In initial tender documents it may be established that, if during execution it becomes necessary to increase or decrease performance up to a fifth of the contract amount, the contracting authority may require the contractor to perform under the conditions originally envisaged . In this case the contractor cannot assert the right to terminate the contract. 10. In the event that an extension option is provided for in the tender notice and initial tender documents, the original contractor is required to perform the contractual services to prices, agreements and conditions established in the contract or, if provided for in the tender documents, at market conditions where most favorable for the contracting authority. 11. In exceptional cases in which there are objective and insurmountable delays in the conclusion of the contract award procedure, it is permitted, for the time strictly necessary to conclude the procedure, to extend the contract with the outgoing contractor if the interruption of services could determine dangerous situations for people, animals, things, or for public hygiene, or in cases where the interruption of the performance deduced in the tender would cause serious damage to the public interest that it is intended to satisfy. In this case, the original contractor is required to carry out the contractual services at the prices, agreements and conditions set out in the contract. 12. The provisions of law no. 21 February 1991 apply to credit transfers. 52. Annex II.14 regulates the conditions for enforceability against contracting authorities. 13. Without prejudice to the provisions of paragraph 8 for the case of renegotiation, the modifications and variations must be authorized by the RUP in the manner provided for by the order of the contracting authority. The design changes permitted pursuant to paragraph 7 must be approved by the contracting authority upon proposal of the RUP, in accordance with the provisions of Annex II.14. 14. A notice of the modification of the contract in the situations referred to in paragraph 1, letters b) and c), is published by the contracting authority in the Official Journal of the European Union. The notice contains the information set out in Annex II.16, and is published in accordance with Article 84. Upon first application of the Code, Annex II.16 is repealed from the date of entry into force of a corresponding regulation adopted pursuant to article 17, paragraph 3, of law 23 August 1988, n. 400, by decree of the Minister of Infrastructure and Transport, in agreement with the Minister for European Affairs, which replaces it entirely also as an annex to the code. For contracts of amounts lower than the threshold referred to in article 14, advertising takes place nationally. 15. In relation to the modifications to the contract, as well as in relation to the variations during construction, the communication and transmission costs to the ANAC, by the RUP, identified in Annex II.14, are observed. In the event that the ANAC ascertains the illegitimacy of the approved variant during construction, it exercises the powers referred to in article 222. In the event of failure to comply with the obligations of communication and transmission of modifications and variants during construction provided for in Annex II.14, the administrative pecuniary sanctions referred to in article 222, paragraph 13 apply. EFFECTIVE FROM: 1 July 2023


REPORT Article 120, amending article 106 of Legislative Decree. n. 50 of 2016, regulates the possibility of modifying procurement contracts already concluded and in progress without having to resort ...


NEW • Non-substantial changes are always permitted, regardless of their value. Changes to the project proposed by the contracting authority or by the contractor which, in compliance with the function...
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