Amendments to Work Order Contracts
"Amendments to contracts must entail tasks that are substantially similar to those in the original contract or involve tasks that are so closely related to the original contract that it would be impracticable for a different contractor to perform the work. The commissioner or an agency official to whom the commissioner has delegated contracting authority under Minn. Stat. § 16C.03, subd. 16
, must determine that an amendment would serve the interest of the state better than a new contract and would cost no more." Minn. Stat. § 16C.05, subd. 2(c)
. It is very important that an amendment be in place before the contract expires. This will avoid any liability that may occur for not having a contract in force when the contractor is working. Consistent with statutory requirements, contracts may only be amended within the scope of the original certification and RFP. For instance, if the original certification and RFP asked for "analysis of soil samples" and nothing more, you could not amend the contract to seek "soil stabilization planning and implementation." However, if your original certification and RFP had asked for "analysis of soil samples and potential additional requirements to stabilize the soil," and your contract was only for analysis, you could amend the contract for "soil stabilization planning and implementation." The original certification and RFP identified that these services might be required.
Examples of Amendments
1. Unexpected developments
Unexpected developments do happen. The agency needs soil samples for groundwater contamination. The drilling identifies an unexpected leaking pipe. The contractor has the capability (and licenses, if necessary) on-site to deal with the issue. An amendment is obviously in order because you must stop the leak. Unexpected developments are neither routine nor are they extensions of work into different areas. In the example above, if the contractor is taking soil samples but two counties away you become aware of a leaking pipe, you cannot amend the contract to "pick up your rig and go over there and stop the leak." Leaks are always unexpected developments. The contract in question, however, is not connected with the unexpected development.
2. Time Extensions
A contract amendment may be required because the time of performance has to be extended within the scope of the original certification and RFP. If the original RFP indicated that completion of the work within a specific time period was critical, and that factor weighed heavily in your evaluation, you should not amend a contract to extend the deadline simply because the contractor cannot meet the deadline. Obviously, you chose the contractor based on its representation in its response to the RFP that it could perform the job in the time required. If the contractor now cannot meet that commitment, and you have not caused the slowdown, the contractor should be giving up something for failing to perform within the specifications. Of course, if you changed something that added significant time to the process, then that change, and the results you receive from it, is consideration on the contractor's part, so the extension of time would be a consideration on your part. There might be circumstances where something happens that is totally beyond the control of the contractor (an earthquake in California, for instance); you might consider that, but you should be very careful and completely document the circumstances. The theory is very simple. You should get what you paid for in the time that was agreed to. The contractor's obligation is to do that.
Writing and Processing the Amendment
An amendment must be clearly identified and written, and properly executed any time the contractor and agency agree to a change in any provision of the contract. All amendments must be clearly numbered and must be approved in the same manner as the original contract. The amendment should indicate why the contract was changed. You need to detail in the amendment why the amendment is necessary. If, for example, you and the contractor have determined that additional work needs to be done within the scope of the original certification and RFP, you should make additions to the Contractor's Duties specifying what is being added and detailing the additional costs. These additional costs must fall within the scope of the contractor's original response to the RFP.
Amendments that increase the dollar levels of a contract may create a need to insert additional clauses into your contract because the need to include these clauses is triggered by the dollar threshold. The most common examples are:
- Certification of Nondiscrimination and E-Verify Certification language must be included if the amendment causes the contract exceed $50,000;
- Affirmative Action Requirements language must be included if the amendment causes the contract to exceed $100,000; and
- Diverse Spend Reporting language must be included if the amendment causes the contract to exceed $500,000.
The template documents needed to amend a contract include:
The Amendment Cover Sheet reaffirms the applicable sections of Minn. Stat. § 16C.08, subd. 2 and 3.
Both of these documents should be sent to OSP along with the original certification form (if applicable), the original contract, and any other previous amendments to the contract (if applicable).
Required documents to be submitted to OSP include:
- Amendment Cover Sheet - Work Order Amendments & Amendments signed under delegated authority
- Work Order Amendment Form
- Copy of Original Work Order Contract
- Copies of Previous Amendments
- Copy of the Work Order Certification Form (if applicable)
- Copy of Master Contract Certification Form
- Copy of Original Master Contract
- Copy of Amendments to Master Contract