De Minimis Modification

One of the most practical permitted grounds for modifying a public contract without running a new procedure is the de minimis rule. Unlike the other grounds in Article 72 of Directive 2014/24/EU, the de minimis ground does not require the authority to justify why the change is needed, whether it was foreseeable, or whether a review clause covers it. It simply requires that the modification value be sufficiently small.

What is a de minimis modification?

Article 72(2) of Directive 2014/24/EU permits modifications without a new procedure where the value of the modification is below the relevant EU procurement threshold (the threshold that triggered the original obligation to use an EU procedure) and below 10% of the initial contract value for service and supply contracts, or below 15% for works contracts. Both conditions must be met simultaneously: a modification that is below 10% of contract value but above the EU threshold still requires further justification under one of the other Article 72 grounds.

The modification threshold (10%/15% rule) is the shorthand commonly used for this provision. It is important to understand that these percentages apply to the original contract value, not the current amended value. If a series of de minimis modifications has already been made, the cumulative value of all modifications may need to be considered to avoid circumventing the rules.

The de minimis rule is the simplest of all modification grounds precisely because it does not require substantiality analysis or justification based on circumstance. Below the threshold, the modification is lawful regardless of whether it was foreseeable or covered by a clause. This makes it a practical safety valve for small, routine adjustments.

In the UK, the Procurement Act 2023 carries forward an equivalent provision. The specific thresholds differ slightly from EU levels, reflecting the UK's own procurement threshold schedule post-Brexit.

Why it matters for bidders

The de minimis rule matters to bidders in two ways. As an incumbent contractor, you can propose small adjustments to price, scope, or terms without triggering a new competition, provided the value stays within both tests. This gives incumbents a degree of flexibility to manage operational realities.

As a competing supplier monitoring the market, you should be aware that de minimis modifications do not always appear in public notices. Smaller changes below both thresholds may be implemented through a contract variation order or supplementary agreement without any publication obligation, meaning the public record may understate the effective value of contracts held by competitors.

Example

A Swedish public hospital holds a medical supplies contract originally worth EUR 800,000. The hospital needs to add a small supplementary line of consumables worth EUR 60,000, representing 7.5% of the contract value. The EU supplies threshold is approximately EUR 215,000 (central government authorities). The modification value of EUR 60,000 is below the threshold, and 7.5% is below the 10% cap. The hospital can implement the addition as a de minimis modification without a new procedure, documented via a supplementary agreement.

Frequently Asked Questions

Do de minimis modifications need to be published?

Generally no, where the value falls below the EU threshold. However, contracting authorities should maintain internal records of all modifications, including de minimis ones, because cumulative modifications will be reviewed in aggregate if a challenge arises.

Can a contracting authority make multiple de minimis modifications in sequence?

Yes, but with caution. Article 72(4) prohibits splitting modifications to circumvent the rules. If cumulative modifications approach or exceed the 10%/15% cap, the authority must justify subsequent changes under a different permitted ground or run a new procedure.

Does the de minimis ground apply to framework agreements?

The de minimis ground applies to individual contracts, including call-off contracts under frameworks. For the framework itself, any modification would need to be assessed under Article 72 in the same way as any other public contract.