Additional Works, Services or Supplies

During the life of a public contract, it often becomes apparent that something extra is needed beyond what was originally scoped. A construction project may require additional groundwork; an IT services contract may need an extra software module; a consultancy engagement may need to extend its analysis to cover a newly relevant dataset. Article 72(1)(b) of Directive 2014/24/EU provides the legal basis for adding these extras without re-running the procurement, subject to strict conditions.

What are additional works, services or supplies?

Additional works, services or supplies are deliverables that a contracting authority needs from its existing contractor but which were not included in the original contract. Article 72(1)(b) of Directive 2014/24/EU permits their addition without a new procedure where four cumulative conditions are satisfied. First, the additional items are necessary and were not included in the initial procurement. Second, a change of contractor cannot occur for economic or technical reasons, such as requirements of interchangeability or interoperability with existing equipment, services, or installations. Third, a change of contractor would cause significant inconvenience or substantial duplication of costs for the contracting authority. Fourth, any price increase does not exceed 50% of the value of the original contract. This 50% cap is shared with the unforeseen circumstances ground, meaning cumulative modifications under both grounds together cannot exceed that ceiling.

The requirement that the additional items were not foreseeable is closely related to but distinct from the unforeseen circumstances ground. It is not enough that the authority simply failed to include the items in the original scope. The authority must be able to demonstrate that a diligent planner would not have included them, either because the need was genuinely unknown at the time or because the scope was appropriately uncertain.

The modification threshold (10%/15% rule) is a separate, lower safe harbour. If the additional value is below both the EU threshold and the relevant percentage cap, the de minimis ground may be easier to invoke. The Article 72(1)(b) ground is typically relied on for higher-value additions that exceed the de minimis limits but remain within the 50% cap.

Why it matters for bidders

For incumbent suppliers, Article 72(1)(b) is a commercially important provision. It allows the scope of an existing contract to be expanded without re-competition, preserving the value and margin profile of the engagement. Understanding the conditions allows you to present a well-founded case to your client when proposing an extension of scope.

For competing suppliers, this ground represents a significant barrier to market entry mid-contract. Monitoring modification notice publications in TED can reveal when competitors' contracts are being expanded under this provision, helping you assess the real market opportunity timeline and plan your bid pipeline accordingly.

Example

A German federal ministry holds a contract for the development of a secure communications platform. During development, a legislative change requires the platform to incorporate a new encryption standard that did not exist when the contract was signed. The encryption module cannot be developed separately without creating integration problems (technical inseparability), and onboarding a new contractor would require full re-familiarisation with the platform architecture (substantial duplication of costs). The ministry adds the module under Article 72(1)(b). The additional value of EUR 900,000 represents 28% of the original contract value, within the 50% cap.

Frequently Asked Questions

Can the additional items be something entirely new, or must they relate to the original contract?

They must relate to the original contract and its subject matter. Adding an entirely unrelated service to an existing contract would almost certainly be a substantial modification that cannot be justified under Article 72(1)(b), because the overall nature of the contract would be altered.

What counts as "significant inconvenience or substantial duplication of costs"?

These are factual assessments made in context. Examples include: the new contractor would need to purchase expensive proprietary tools already owned by the incumbent; detailed knowledge of the system's architecture cannot be easily transferred; or the costs of mobilising a second supplier would equal or exceed the cost of the additional work itself.

Does a modification notice need to be published?

Where the value of the additional items exceeds the EU procurement threshold, yes. Article 72(1) requires publication in the OJEU via TED. Below the threshold, national publication rules may apply.