Contract modification

Contract modification (kontraktsendring) is a change to a contract that has already been concluded, for example more of the same, new deliveries, a longer term, a changed price or a new supplier. The question is whether the change can be made within the existing contract, or whether it is in reality a new procurement that requires a competition. DFØ (the Norwegian Agency for Public and Financial Management) takes the view that what decides it is whether the modified contract is materially different from the original one, so that a new procurement that should have been advertised has in reality been made. The § references on this page are to the Public Procurement Regulations (anskaffelsesforskriften) unless another instrument is named.

Part III of the Regulations applies to supply, service and works contracts at or above the EEA thresholds, but not to special services (særlige tjenester) or health and social services. Under Part III, § 28-1 lists six types of modification that are allowed without a new competition. They are modifications under a review clause, for example an option or a price indexation clause, that was stated in the procurement documents, clearly sets out which modifications may be made, to what extent and on what conditions, and does not allow the overall nature of the procurement to change (§ 19-1 (2)), and modifications of low value. They are also necessary additional deliveries where the supplier cannot be changed for technical or economic reasons and a change would cause significant inconvenience or substantial additional costs, and modifications caused by circumstances that a diligent contracting authority could not foresee. The last two are a new supplier following a restructuring, such as a merger, acquisition or insolvency, and modifications that are not substantial, whatever their value.

For modifications of low value, the price increase must be below both the EEA threshold in § 5-3 and 10% of the original contract value for supply and service contracts, or 15% for works contracts. The lower limit applies, several successive modifications are counted together, and where the contract has a price indexation clause, the increase is calculated from the adjusted price (§ 28-1 (2)). The exception only applies when the overall nature of the procurement does not change, even if the price increase is below the limits. For supply and service contracts above NOK 16.3 million awarded by central government authorities, and above NOK 25 million awarded by contracting authorities other than central government authorities, it is the amount in NOK that sets the limit, because 10% is then more than NOK 1.63 or 2.5 million. For works contracts the EEA threshold is NOK 62.9 million, and the percentage sets the limit unless the contract is worth more than about NOK 419 million, which is 62.9 divided by 0.15. Additional deliveries and unforeseen modifications may not increase the price by more than 50% of the original value per modification, and must not be made to circumvent the Regulations. Unforeseen modifications are only allowed when the overall nature of the procurement does not change. A notice of modifications of these two types must be published in Doffin, the Norwegian national database for public procurement notices (§ 28-1 (3) and § 21-1).

Under Part III, a modification is always substantial if it introduces new conditions which would have meant that other suppliers could potentially have taken part, or that another supplier could have been awarded the contract; if it changes the economic balance of the contract in favour of the supplier; if it extends the scope considerably; or if it replaces the supplier other than after a restructuring (§ 28-2 letter a to d).

Part II applies from NOK 1.3 million up to the EEA thresholds (not to health and social services), and to special services from NOK 1.3 million with no upper limit. Under Part II, the contracting authority may make modifications that are not substantial, and a modification is substantial if the content of the contract becomes materially different from the original contract (§ 11-2). Part II has no fixed amounts or percentages. DFØ writes that the scope for modification is somewhat wider than under Part III, and that a modification that is not substantial under Part III will, for the most part, not be substantial under Part II either.

The Regulations have no specific provision on modifications to contracts under Part I and Part IV, but that does not mean such contracts can be modified freely: a modification that makes the contract materially different is in reality a new procurement, which under Part IV must as a rule be advertised (§ 30-5) and under Part I must comply with the fundamental principles in § 4 of the Public Procurement Act. That covers contracts at or above NOK 500,000 and below NOK 1.3 million, health and social services below NOK 8.7 million (Part I), and health and social services at or above NOK 8.7 million (Part IV).

As a supplier, you meet contract modifications from two sides. If you hold the contract, you are the one asked for more, for something different or for more time. The rules are addressed to the contracting authority, but an unlawful modification can also hit you. Under Part III, the contracting authority may terminate the contract when substantial modifications have been made that require a new competition (§ 28-3 letter a). Advice: ask the contracting authority to state which rule the modification is based on, and have it written into the modification agreement.

Modifications can also happen without anyone writing them down. According to DFØ, KOFA (the Complaints Board for Public Procurement) has held in several cases that when the contracting authority does not follow up a breach of contract, the economic balance of the contract can shift in favour of the supplier. So if you deliver something other than what the contract requires, and the contracting authority accepts it, that can be assessed as a modification.

If you are a competitor, a modification to someone else's contract can be a purchase you could have competed for. Notices of additional deliveries and unforeseen modifications under Part III must be published in Doffin on the form «Endring i inngått kontrakt», change to a concluded contract (DFØ), so you can see them there. A substantial modification without a new competition can be an illegal direct award, and you can then complain to KOFA without showing a legitimate interest (saklig interesse). Since 1 July 2026, only undertakings established in Norway or another EEA state, or in a state that is party to the WTO Agreement on Government Procurement (GPA) or another agreement binding Norway, have rights under the Act and the Regulations, and the latter only to the extent that agreement gives them rights (Public Procurement Act § 3). Other undertakings may take part in competitions but cannot rely on those rights. The time limits and the complaint fee are on the pages on direct award and KOFA.

A municipality has a contract for IT operations worth NOK 40 million excluding VAT over four years, awarded under Part III. The municipality wants to add operation of a new specialist system for NOK 3 million. That is below 10% of the contract value, which is NOK 4 million, but above NOK 2.5 million, the EEA threshold for municipalities. The modification therefore falls outside the exception for modifications of low value. Had the addition been NOK 2 million, with no earlier modifications of this kind to the contract, it could have been allowed under § 28-1 (1) letter b, as long as the overall nature of the contract does not change.

For NOK 3 million, the municipality must find another ground in § 28-1, for example an option in the contract that covers the addition, or that the modification, after a specific assessment, is not substantial. Otherwise the addition requires a new competition. Advice: if you are the supplier, it is your contract that is being modified, so ask for the ground to be stated in the modification agreement.