Current through Register Vol. 56, No. 18, September 16, 2024
(a)
General provisions regarding the procedures for change orders which exceed the
20 percent limitation are as follows:
1. The
procedures in this section shall only be followed when a particular change
order on any type of contract, except professional and extraordinary
unspecifiable service contracts, will cause the total amount of change orders
executed for the particular contract to exceed the originally awarded contract
price by more than 20 percent. The purpose of the procedures is to allow for
such a change only in limited instances. Such a change shall not be permitted
when the factual circumstances make it reasonably possible to execute a new
contract for the additional work. Such a change may be allowed, for example,
when an unforeseen circumstance or differing site condition is combined with a
situation which renders execution of a new contract an unreasonable
interference with the efficient completion of the work.
2. Generally such change orders are not
justifiable and the ready issuance of them by contracting units would
constitute an abuse of these rules.
(b) A written certification justifying the
performance of the work or the furnishing of the services which would
necessitate issuance of such a change order shall be filed by the contractor
with the chief executive officer or designee. This certification shall include
an explanation of the factual circumstances which necessitate issuance of the
change order; a statement indicating why these circumstances could not have
been foreseen; a statement indicating why issuance of the change order would be
in the best interests of the contracting unit and would not constitute an abuse
of these rules; and, if the nature of the change order is technical, the
certification shall include a certified statement from the contractor's
appropriate expert, such as an engineer or architect. This statement shall
explain in detail the factual circumstances which necessitate issuance of the
proposed change order. A rewrite or paraphrase of the rules in this subchapter
is not acceptable.
(c) The
governing body approval process for change orders which exceed the 20 percent
limitation is as follows:
1. The chief
executive officer or his or her designee shall file a request for the change
order with the governing body. This request shall include a statement
indicating why the proposed change may be allowed under this subchapter. A copy
of the certification required under (b) above must also be attached to the
request.
2. If the certification
required pursuant to (b) above includes a certified statement from an engineer
or other expert as required by (b) above, the request to the governing body
shall also include a statement from the contracting unit's engineer or an
official or employee with the appropriate expertise. This statement shall
explain in detail the factual circumstances which justify issuance of the
proposed change order. A rewrite or paraphrase of the rules in this subchapter
is not acceptable.
3. The governing
body shall take appropriate steps to assure that the change order is proper and
allowable under this subchapter.
4.
The governing body shall then pass a resolution authorizing a written
amendatory contract to be entered into covering the change(s) to be made. The
exact form of this amendatory contract shall be at the discretion of the
contracting unit attorney.
5. The
resolution described in (c)4 above shall be passed before execution of the
change order.
6. The governing body
shall cause to be printed once, in an official newspaper, a brief notice
indicating the additional amount to be expended, the original contract price,
the nature of the original and additional work and why it is necessary to
expend the additional funds. A copy of the advertisement shall also be filed
with the clerk or secretary of the governing body and be available for
inspection by the public.
(d) The clerk or secretary of the governing
body of each contracting unit shall report to the Director on an appendix to
the contracting unit's annual budget all change orders from the previous fiscal
year which exceeded the 20 percent limitation. This report shall be made on a
form provided by the Director. A summary of the report shall be included as
supplemental material in the annual audit of the contracting unit.
