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Contract Changes under the Procurement Act 2023

Contract changes under the Procurement Act 2023.

FAQs

  • You mentioned in a previous 5 in 25 webinar on contract modifications that permitted changes under Regulations 72(1)(b) and (c) PCR 2015 are not cumulative, in terms of assessing the value of the change against the 50% value cap. However, in the eLearning training it says "Under PCR 2015, the % value cap that applied to each modification was calculated cumulatively". Are these contradictory positions?
    This is an area where we hope that forthcoming guidance on modifications will assist. Our view is as follows.

    Under Regulations 72(1)(b) and (c) PCR 2015, the 50% ‘cap’ applies to each modification. See Regulation 72(2) PCR 2015, which states that the following wording used in those two exemptions - “provided that any increase in price does not exceed 50% of the value of the original contract” - applies to the value of “each modification” where several successful modifications are made. There is a provision at Regulation 72(2)(b) which does prohibit successive modifications where they are aimed at circumventing the rules.

    The drafting in the Act arrives at the same position via a different route. Section 74(1) states (inter alia) that a modification can be made if it is a permitted modification under Schedule 8. Each modification is assessed against the schedule 8 “grounds” on a standalone basis, not cumulatively. The only exception is set out at section 74(7) and (8), which prevents modifications being “separated out” when reasonably they should be treated as one modification; if this is the case, then the modifications need to be taken together in the round and section 74(1) then applied, to test whether the modifications may be made.

    (For completeness, although not directly relevant to the question, we note that both the PCR 2015 and the Act do require authorities to aggregate the value of modifications made in relation to Regulation 72(1)(f) PCR 2015 and their broad equivalent – “below-threshold modifications” – under section 74(4) of the Act).

  • Will the 50% cap being assessed by reference to contract value immediately prior to making the modification (i.e. not by reference to original value) also apply to the Provider Selection Regime (“PSR”) for permitted modifications to NHS health care contracts?
    The 50% cap concept is not included in the separate PSR regime on contract modifications. The NHS England PSR flowchart and contract modification process map provide more detail and guidance on this point.

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