4079255 Notice of Final Rulemaking to update and replace all of Chapter 36 pertaining to contract modifications
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OFFICE OF CONTRACTING AND PROCUREMENT
NOTICE OF FINAL RULEMAKING
The Chief Procurement Officer of the District of Columbia (CPO), pursuant to the authority set forth in sections 204 and 1106 of the Procurement Practices Reform Act of 2010, effective April 8, 2011 (D.C. Law 18-371; D.C. Official Code §§ 2-352.04 and 2-361.06)(2011 Repl.), hereby gives notice of the intent to adopt final rulemaking to amend chapter 36 (Contract Modifications) of title 27 (Contracts and Procurement) of the District of Columbia Municipal Regulations (DCMR). This rulemaking replaces the District’s regulations for contract modifications.
The CPO gave notice of his intent to adopt these rules on September 7, 2012, and the proposed rules were published in the D.C. Register on October 19, 2012, at 59 DCR 12144. No changes have been made to the text of the rules as published. The CPO took final action to adopt these rules on November 19, 2012.
The rulemaking will become effective upon publication in the D.C. Register.
Chapter 36, CONTRACT MODIFICATIONS, of title 27, CONTRACTS AND PROCUREMENTS, of the DCMR is amended as follows:
Section 3600, GENERAL PROVISIONS, is amended to read as follows:
3600 GENERAL PROVISIONS
3600.1 Only a contracting officer acting within the scope of the contracting officer's delegated contract authority is authorized to execute a contract modification on behalf of the District. Other District personnel shall not:
(a) Execute contract modifications;
(b) Act in a manner that causes a contractor to believe that they have authority to bind the District; or
(c) Direct or encourage a contractor to perform work that should be the subject of a contract modification.
3600.2 A contract modification, including a change issued unilaterally by the District, shall be priced and a government estimate shall be prepared before signature by the parties, unless the interest of the District would be adversely affected. If a significant cost increase could result from a contract modification and time does not permit negotiation of a price, the contracting officer shall negotiate a maximum contract price increase and include that price in the modification.
3600.3 The contracting officer shall not execute a contract modification, including a change order, which causes or will cause an increase in the funding level of the contract without having first obtained a certification of the availability of funds. The certification shall be based on the negotiated price or the negotiated maximum price.
3600.4 A modification to a contract may be executed without having first obtained the certification required under § 3600.3 if the modification includes a clause, approved by the Director, which conditions payment upon the availability of funds.
Section 3601, TYPES OF CONTRACT MODIFICATIONS, is amended to read as follows:
3601 TYPES OF CONTRACT MODIFICATIONS
3601.1 A contract modification may either be bilateral or unilateral.
3601.2 The contracting officer shall use a bilateral contract modification (also known as a "supplemental agreement") to:
(a) Make negotiated equitable adjustments resulting from the issuance of a change order;
(b) Formalize a letter contract; or
(c) Reflect other agreements of the parties to modify the terms of the contract.
3601.3 The contracting officer shall use a unilateral contract modification to:
(a) Make administrative changes, such as correction of typographical errors or appropriations information;
(b) Issue change orders;
(c) Make changes authorized by a provision of the contract other than a changes clause, such as an option; or
(d) Issue a termination notice.
3601.4 When a contractor considers that the District has effected or may effect a change in the contract that has not been identified as such in writing and signed by the contracting officer, the contractor shall notify the District in writing as soon as possible. The District shall evaluate the alleged change and:
(a) Confirm that it is a change, direct the mode of further performance, and plan for its funding;
(b) Countermand the alleged change; or
(c) Notify the contractor that the District considers no change to have occurred.
Section 3602, UNAUTHORIZED CONTRACT MODIFICATIONS, is amended to read as follows:
3602 UNAUTHORIZED CONTRACT MODIFICATIONS
3602.1 Employees and agents of the District other than duly appointed contracting officers shall not execute contract modifications or:
(a) Act in a manner that causes or could reasonably cause a contractor to believe that they have authority to bind the District; or
(b) Direct or encourage a contractor to perform work or modify the manner in which work is being performed, which should be the subject of a contract modification.
3602.2 A contractor shall be bound by the terms of the written contract and written contract modifications signed by the contracting officer. A contractor shall not rely upon any written or oral statements or directions of employees or agents of the District, other than the contracting officer, for authority to perform work, alter schedules or specifications, or any other action that would normally require a written contract modification.
3602.3 The District shall not be responsible for any costs incurred by a contractor for any additional work or other actions by a contractor outside the scope of the written contract and written contract modifications signed by the contracting officer.
Section 3603, CHANGE ORDERS, is amended to read as follows:
3603 CHANGE ORDERS
3603.1 The contracting officer shall include a changes clause, approved by the Director, in each solicitation and contract.
3603.2 Each changes clause shall specify the kinds of contract changes that the contracting officer may make within the scope of the contract by written change order at any time and without notice to sureties, if any.
3603.3 Each changes clause shall include provisions for adjustments in contract price, delivery schedules, or other contract terms which are appropriate to the type of contract.
3603.4 The contracting officer may issue a written change order when a change can be accomplished within the provisions of the changes clause.
3603.5 After the contracting officer issues a change order, the contractor shall continue performance of the contract as changed. In cost-reimbursement contracts, the contractor shall not be obligated to continue performance or incur costs beyond the limits established in the contract.
Section 3604, EQUITABLE ADJUSTMENTS, is amended to read as follows:
3604.1 If the contracting officer and the contractor agree in advance to an equitable adjustment in the contract price, delivery terms, or other contract terms, the contracting officer shall issue a bilateral contract modification and shall not be required to issue a change order.
3604.2 The contracting officer shall negotiate an equitable adjustment resulting from a change order in the shortest practicable time.
3604.3 Failure to agree to any adjustment shall be a dispute under the disputes clause in the contract and shall be resolved in accordance with the procedures set forth in the Procurement Practices Reform Act of 2010, effective April 8, 2011 (D.C. Law 18-371; D.C. Official Code §§ 2-351.01, et seq.)(2011 Repl.) and chapter 38 of this title. However, nothing in this section shall excuse the contractor from proceeding with the contract as changed, except as provided otherwise in § 3603.5.
Section 3605, CONTRACT MODIFICATION FORMS, is repealed and replaced with:
3605 [RESERVED]
Section 3606, EFFECTIVE DATES OF MODIFICATIONS, is amended to read as follows:
3606 EFFECTIVE DATES OF MODIFICATIONS
3606.1 For a solicitation amendment, change order, or administrative change, the effective date shall be the date on which the contracting officer issues the amendment, change order, or administrative change.
3606.2 For a bilateral modification (supplemental agreement), the effective date shall be the date agreed upon by the contracting officer and the contractor.
3606.3 For a modification converting a termination for default to a termination for the convenience of the District, the effective date shall be the same as the effective date of the termination for default.
3606.4 For a modification issued as a confirming notice of termination for the convenience of the District, the effective date of the confirming notice shall be the same as the effective date of the initial notice.
Section 3699, DEFINITIONS, is amended by deleting the term “Director” and its definition.
