Q = Question; A = Answer
A. We do not believe from the facts you submit that this requested change order is permissible. It appears from your comments that this contractor was selected in part because it agreed to accept the fleet of vehicles "as is," and presumably be responsible for all maintenance required to keep the vehicles operational. This is a very material promise and one that significantly influenced the selection decision. To relieve the contractor of this responsibility now would undermine the integrity of the award and expose the agency to a protest from the competitors who lost this competition. It could also subject the agency to damaging public criticism and perhaps the loss of federal funds for the contract. We would advise you to carefully review the RFP and the contractor's proposal with your counsel and determine if you believe the contractor accepted the vehicle maintenance responsibility as discussed here. If so, we would advise you not to change the contract and relieve him of this duty. It might be preferable to allow him to litigate the matter, and if he is successful, at least the agency will have been protected from the potential adverse outcomes as far as loss of federal funds, protests from the other bidders, etc. (Posted: December, 2010)
A. The change to the transmission that you describe would appear to fall within the scope of the contract in as much as the change represents only a 2.6% price increase from the original contract price. However, we would be concerned with the fact that the original transmissions may not be suitable for the size/weight of the vans. We would suggest that the recipient carefully review the contract performance specifications with its technical personnel and legal counsel to determine which party is responsible for the fact that the vehicle transmissions may be unsuitable for these vans. If the manufacturer or supplier is responsible, then the new transmissions may be obtainable for the same contract price as the original transmissions. In fact there would then be a question of the supplier having to replace the original transmissions as well, but that could be a negotiating point with the supplier - perhaps to obtain the upgraded transmission at no additional cost for vehicles yet to be delivered. We would also strongly suggest the recipient, before committing to the new transmissions, research the experience of other users of these vans to determine if the upgraded transmissions have a satisfactory performance record. (Posted: July, 2011)
For example, if the amount of effort is twice the cost from the original contract but the competitors were made aware in the original contract of the possibility that the proposed change may happen, can the proposed change be considered as a change order since it passed one of the tests but not the other?
A. The subject of change orders, including cardinal changes, is discussed in the FTA BPPM, Section 9.2.1 – "Contract Scope and Cardinal Changes."
The guidance in this section discusses several criteria that the courts have used to decide when a change is within the scope of the contract. One of the most important criteria as stated by the courts, says, “An important factor to be considered is whether the original solicitation adequately advised offerors of the potential for the type of changes during the course of the contract that in fact occurred . . . or whether the modification is of a nature which potential offerors would reasonably have anticipated under the changes clause.”
We believe that the criteria stated above (i.e., that is was within the contemplation of the parties when the contract was competed) would be sufficient to qualify the change as "within the general scope" of the contract, even though the cost of the change is relatively high when compared with the original contract. (Posted: January, 2012)