The Ministry of Finance indicates that delivery difficulties and the inability to comply with terms due to the imposed sanctions, the lack or unavailability of raw material or other such reasons cannot be considered the tenderer’s business risks. In such cases, it can be assessed whether the extension of a term is necessary due to unforeseeable circumstances independent of the contracting authority and whether the amendment of the public contract would be allowed under § 123 section 1 clause 4 of the Public Procurement Act.
The amendment of a public contract is allowed, if the amendment is caused by circumstances unforeseeable to a diligent contracting authority, the overall nature of the public contract is not altered, and the value of any amendment does not exceed 50 percent of the original value of the public contract. Circumstances arising from the crisis are doubtlessly of a kind which even a diligent contracting authority could not have foreseen when preparing a public procurement or concluding a public contract.
Unforeseeability is not equivalent to force majeure, but it must be a circumstance that is not the tenderer’s business risk or something that the tenderer could have taken into account when submitting a tender. Due to the Ukrainian war, the fulfilment of public contracts may be obstructed due to either direct or indirect unforeseeability. It is direct, for instance, when goods set forth in the public contract are not allowed to be delivered to Estonia due to an international sanction. In such a case, the circumstances do not constitute delivery difficulties, but an impossibility of fulfilling the public contract, in which event the application of the force majeure provisions would be a better alternative to the amendment of the public contract.
Attention is also drawn to the fact that upon performing an analysis of the permissibility of the amendment of a public contract, the contracting authority should also consider its conduct in preparing the procurement documents and holding the public procurement (i.e., whether the contracting authority has been a diligent contracting authority) and assess whether the circumstances are truly unforeseeable.