Following the award of a construction contract on a transportation project, the procuring agency may need to modify the scope of the work. Given the often unpredictable nature of construction projects, after award of the contract it often becomes necessary to change the contract to account for unforeseen circumstances or different conditions than anticipated at the time of bid and award.  There are two basic types of changes:  first, changes ordered or directed by the awarding agency and, second, changes requested by the contractor for reasons permitted by the contract or by law. 

Whenever a modification is desired, the agency should consider whether it constitutes a significant change in the character of the work subject to restrictions under 23 CFR 635.109.  The agency should also consider whether the change violates competitive procurement requirements as a matter of state or local law, or whether the agency is required to include the work in question in a new procurement.

The line between permissible and impermissible changes is not clearly drawn.  Procuring agencies would benefit from legal guidance regarding the laws applicable to contract modifications in different states.

Accordingly, this digest:

·       identifies the policy reasons underlying restrictions on contract modifications

·       identifies state and federal statutes and regulations affecting modifications

·       highlights the importance of including a provision for  modifications in the contract

·       provides examples of practices followed by DOTs in determining whether modifications are allowed.

After award of the contract it often becomes necessary to change the contract to account for unforeseen circumstances or different conditions than anticipated at the time of bid and award.  There are two basic types of changes:  first, changes ordered or directed by the awarding agency and, second, changes requested by the contractor for reasons permitted by the contract or by law. 

The focus of this Digest is to explore whether there are statutory, procedural, and/or legal tests to determine when the issuance of a contract modification is permissible. The old test of the dichotomy between a change outside the scope of the contract (cardinal change) which is not permissible and a change that is within the scope of the contract, which is permissible, has been replaced with statutes and guidelines that clearly indicate when a change order can be used for changed work or when that changed work must be competitively advertised.

This digest should be useful to transportation attorneys, financial officials, contracting officers and personnel, engineers and other transportation officials.

STATUS: Completed. Published as NCHRP LRD 67