Permissible Changes in Scope of Work for Construction Contracts (2015)

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A-1 APPENDIX A—SUMMARY OF SURVEY RESPONSES Survey Responses—Contract Modification Factors The authors sent surveys to 47 state transportation agencies. One of the questions asked the respondents to check off the factors that they take into account on whether to approve a contract modification or, alterna- tively, to undertake a competitive bid. Most of the respondents checked off the following factors that are taken into account in relation to contract modifications (but note that these are not explicitly tied to com- petitive bidding triggers): • Is the contract modification within the general scope of the original contract? • Is the contract modification within the project limits or right of way of the original contract? • Does the contract modification result from an emergency situation affecting life, safety, or health? • Does the contract modification result from an unforeseen site condition? • Would delaying the contract modification and implementing a competitive bid process lead to signifi- cant increased costs? • Would delaying the contract modification and implementing a competitive bid process significantly delay completion of the project? • Would approval of the contract modification go beyond statutory or regulatory authorizations? • Is the work of the contract modification required by new federal mandate or requirements? • Does the contract modification violate existing permits or commitments to stakeholders or governmen- tal agencies? • Is the cost of the contract modification fair and reasonable? • Does adding the work of the contract modification delay the project completion? It should be noted, however, that even though most of these factors were noted as germane to the contract modification/competitive bidding decision, individual DOTs might be limited to specific factors for contract modifications as provided by statutes, standard contract specifications, or Standard Operating Procedures (SOPs) or manuals. Stated another way, the survey responses did not necessarily reflect what was in stat- utes, specifications, or SOPs applicable to the respondent agency. The authors concluded that, in practice, most of these factors are taken into account in making decisions on making contract modifications. The authors did not get any survey responses that specifically identified these factors as triggering a competitive bidding requirement; rather, they were used to decide whether to issue—or not issue—a contract modifica- tion. Survey Responses—Outside Agency Approvals of Contract Modifications One of the survey questions asked respondents to advise on the necessity of outside agency approval of contract modifications. Almost universally, DOTs identified the necessity of Federal Highway Administra- tion approval of contract modifications on federal aid projects. Some DOTs, for example RIDOT and MnDOT, also identified the need to get administrative approval from a state agency responsible for govern- ment expenditures, contracts, and/or services.71 71 An example includes the New York State Finance Law 112.

A-2 Survey Questions Distributed to State Agencies NCHRP 20-06, STUDY TOPIC 20-03 PERMISSIBLE CHANGES OF WORK FOR CONTRUCTION PROJECTS SURVEY QUESTIONS Agency Name: _________________________________________________________________ Name of Employee: _____________________________________________________________ Job Title: _____________________________________________________________________ Contact telephone/cell phone number: ________________________/ _____________________ Email address: _________________________________________________________________ Notes (a) Please provide copies via e-mail or provide an Internet-link for any contracts or other documents identified in your responses. (b) If certain of the questions below are covered by an existing administrative procedure man- ual/guidelines or standard operating procedure, and you would prefer not to give a narrative response, please provide a reference to the applicable section(s) of those manuals or SOPs and a copy via email or Internet-link. (c) In responding to the following questions, please feel free to attach extra pages or documents as needed. 1. Please provide a reference and email copy or Internet-link to your state competitive bid statute and/or state rules and regulations that govern competitive bidding of construction contracts. 2. Please provide a reference and email copy or Internet-link to the state law and/or rules and regulations that govern the issuance and/or approval of contract modifications on construction contracts. 3. Please describe the administrative process used to approve contract modifications to existing construc- tion contracts, or email a copy or provide an Internet-link to any relevant administrative procedure man- ual/guidelines or standard operating procedures. 4. Who in your organization is primarily responsible for administering the contract modification approval process? 5. What factors are considered in determining whether to approve a contract modification or, alterna- tively, to undertake a competitive bid process?

A-3 Check all that apply a. Is the contract modification within the general scope of the original contract? b. Is the contract modification within the project limits or right of way of the original contract? c. Does the contract modification result from an emergency situation affecting life, safety or health? d. Would delaying the contract modification and implementing a competitive bid process lead to sig- nificant increased costs? e. Would delaying the contract modification and implementing a competitive bid process signifi- cantly delay completion of the project? f. Would approval of the contract modification go beyond statutory or regulatory authorizations? g. Is the work of the contract modification required by new federal mandate or requirements? h. Does the contract modification violate existing permits or commitments to stakeholders or other governmental agencies? i. Is the cost of the contract modification fair and reasonable? j. Does adding the work of the contract modification delay the project completion? 6. Please list any other factors not included in the above list that are considered in a decision to issue a contract modification vs. bidding the additional or changed work. 7. Please identify and describe the name and role of all oversight agencies or entities that are required to approve contract modifications. 8. Please list other approval issues that affect your agency’s approval of contract modifications if not oth- erwise mentioned in response to other questions. 9. Please reference any court case or significant legal decision relating to the issue of whether a contract modification is allowable and/or when and whether competitive bidding is required, as it relates to a con- tract modification to an existing construction contract. 10. Please identify any differences in contract modification rules, policies, procedures, etc., for alternative project delivery contracting methods, including CM/GC, design build, or public private partnerships and pro- vide references to, copies of, or Internet-links to documents that contain or describe such differences. 11. Does your agency have a policy or procedure to add work to existing contracts for emergency situa- tions? If so, please provide a reference, email copy or Internet-link to such policy or procedure. 12. Does your agency have a policy or procedure that requires competitive bidding in emergency situa- tions? If so, please provide a reference, email copy or Internet-link to such policy or procedure. 13. Please provide a reference, email copy, or Internet-link to your current standard specifications dealing with contract modifications.

A-4 14. Does your agency use “on-call” contracts for construction or capital maintenance work? If so, please provide a reference, email copy, or Internet-link to any policy, procedure, and typical contract form for such contracts. ______________________________________________________________________________ Please send your responses and any other documents, preferably by e-mail, to: Eric Kerness, Esquire Kerness Consulting 1357 Stanley Lane Schenectady, NY 12309 Tel. (518) 347-2778 Cell: (518) 928-9433 Eric@Kerness.com