Modification and termination of public contracts
Produced in partnership with Kerry Boxall of Eversheds Sutherland LLP
Modification and termination of public contracts

The following Public Law guidance note Produced in partnership with Kerry Boxall of Eversheds Sutherland LLP provides comprehensive and up to date legal information covering:

  • Modification and termination of public contracts
  • Brexit impact—public procurement
  • Rules on modifications and implied termination rights in public contracts
  • Modification of contracts
  • Scope of regulation 72
  • Termination of contracts
  • Drafting guidance for compliance with regulations 72 and 73

Brexit impact—public procurement

The UK public procurement regime derives from EU public procurement laws, and is therefore impacted by the UK’s withdrawal from the EU. For general updates on the process and preparations for Brexit, see Practice Note: Brexit timeline. For further reading on the impact of Brexit on public procurement, see Practice Note: Brexit—the implications for public procurement.

Rules on modifications and implied termination rights in public contracts

The provisions in relation to modifications to public contracts and the inclusion of implied termination rights for contracting authorities are two key areas where amendments were made to the public procurement framework under the Public Contracts Regulations 2015 (PCR 2015), SI 2015/102. These provisions significantly impact the way in which contracting authorities should procure, award, amend and terminate public contracts.

Modification of contracts

Regulation 72 of PCR 2015 is aimed at clarifying the extent to which concluded public contracts and frameworks may be amended without advertising a new tender process. It establishes ‘safe harbours’ for certain types of amendments. Amendments which fall outside these safe harbours will require a new procurement procedure in accordance with PCR 2015.

Previously, the issue of whether a modification to a public contract would require the contract to be re-tendered was governed by the principles laid down in the case of Pressetext. Though these