The Problem of the Admissibility of Modifications to Public Procurement (and Concession Contracts)

Abstract

The central part of the scientific article is the analysis of the problem of the admissibility of modifications of public procurement contracts and concession contracts. After the awarding of a concession or a public procurement contract, these may not be substantially changed by an agreement between the contracting authority and the successful tenderer. The research is initially focused to an analysis of the development of the legal institute in the case law of the Court of Justice and its transposition into secondary legislation of the European Union. This is followed by a comparison of the regulation in the acquis communautaire with the regulation in Slovenian positive law. The problems of the admissibility of modifications to public procurement contracts/concessions (this is the central part of the article) should be supplemented by formulating a thesis on the possible extension of comparable standards of interpretation of admissibility from the contractual (implementation) to the tendering stage of public procurement/concession. In this scientific paper, I therefore point out (which was the purpose of the scientific paper) the hypothesis that all modifications in public procurement procedures and concession award procedures must be treated equally, regardless of the stage a relationship creation or implementation process. A different position would be administrative and contrary to the necessary functional interpretation of EU law. The modification cannot becomes admissible at the time of the conclusion of the contract, while prior to that, this modification (which would already form part of the contractual relationship) is not admissible.