Modification Notice Publication

Public procurement is built on transparency. When a public contract is modified in a way that affects the market, competing suppliers and the public have an interest in knowing that the modification has occurred, what it covers, and on what legal basis it was made. The modification notice publication obligation is the mechanism through which this transparency is delivered at European level.

What is a modification notice publication?

A modification notice publication is a notice published in the Official Journal of the European Union (OJEU) via Tenders Electronic Daily (TED), or in equivalent national portals for sub-threshold contracts, announcing that a contracting authority has modified a concluded public contract. Article 72(1) of Directive 2014/24/EU requires publication where modifications are made under grounds (b) or (c) of that Article (additional works, services or supplies needed due to unforeseeability, or modifications arising from unforeseen circumstances) and where the value of the modification exceeds the relevant EU procurement threshold.

The notice is published using the Contract Award Notice form, which includes a section for recording modifications. The required information includes a description of the modification, the reasons for it (the Article 72 ground relied on), the original contract value, the modified contract value, and the cumulative value of all modifications to date. The notice serves as a public record enabling competitors, oversight bodies, and the European Commission to assess whether the modification was lawful.

Not all modifications trigger a publication obligation. De minimis modifications under Article 72(2) do not require notice. Modifications made under a pre-agreed review clause typically do not require a separate modification notice (the original contract notice having already disclosed the possibility of modification). The publication obligation is specifically targeted at the higher-value unforeseen circumstances and additional works grounds, where transparency is most important because the modification was not anticipated in the original documents.

In the UK, the Procurement Act 2023 introduced a broader modification notice regime. Certain modifications must be published as modification notices in Find a Tender, with a standstill period during which suppliers can raise objections before the modification takes effect. This is more demanding than the EU regime and reflects the UK's post-Brexit emphasis on competitive transparency.

Why it matters for bidders

Monitoring modification notices in TED and national portals is a legitimate and valuable competitive intelligence activity. Modification notices reveal the following information. First, they show which contracts are being expanded, for how much, and on what grounds, helping you assess when a contract may eventually come back to market. Second, they allow you to evaluate whether a competitor's contract is being modified in a way that appears to exceed the legal limits. If a modification notice describes a value increase that, together with prior modifications, exceeds the 50% cap, you may have grounds to challenge. Third, in the UK, the standstill period following a modification notice publication gives you a formal window to raise objections before the change is implemented.

Example

A Danish transport authority modifies a rail maintenance contract to add emergency track replacement works following severe winter flood damage. The additional value of DKK 42 million exceeds the EU works threshold. The authority publishes a modification notice in TED, citing Article 72(1)(c) (unforeseen circumstances), describing the flood event, the technical necessity for the additional works, and confirming that the cumulative modification value represents 32% of the original contract, within the 50% cap. The notice is published the same week as the supplementary agreement is executed.

Frequently Asked Questions

When must the modification notice be published, before or after the modification is implemented?

EU law does not specify a pre-modification publication requirement for modification notices (unlike the UK's standstill period). Publication is generally expected to coincide with or shortly follow execution of the modification. However, some member states impose their own timing requirements.

What is the standstill period in the UK modification notice regime?

Under the Procurement Act 2023, certain modifications require a publication notice and a mandatory standstill period before the modification takes effect, during which interested suppliers can seek a review. The length of the standstill period depends on the nature of the modification. This is a significant departure from the EU regime.

Is there a penalty for failing to publish a required modification notice?

Failure to publish a required notice is itself a breach of procurement law and can support an ineffectiveness challenge. It may also attract enforcement action by national oversight bodies or, for EU-funded contracts, the European Commission.