Two types of facts are implicated. The first is when a contractor on an awarded contract complains the change is beyond the scope of the contract. The other is when a competitor complains that the change is beyond the scope of the original contract and therefore should, under the Competition in Contracting Act (CICA), be open for competition. In either case the central question is whether the contract, as modified, calls for essentially the same performance.
The rule has always been that modifications of an existing contract are permissible as long as the modification is within the scope of the original competitive procurement. (The same rule applies to the scope of the changes clause.) Since the Federal Acquisition Regulation (FAR) is no help here, the judicial tribunals have relied on the "cardinal change" doctrine to test whether the modification or change is in-scope on an awarded contract or violates the competition requirements of CICA on the award of a new contract. The cardinal change doctrine addresses whether a change or modification exceeds the scope of the contract changes clause.
What is a cardinal change? A cardinal change occurs when the government alters the work so drastically that it effectively requires the contractor to perform duties materially different from those originally required. The cardinal change doctrine prohibits an agency from compelling a contractor to perform beyond the scope of the original bargain. The contractor can stop work. In fact the contractor my risks not getting paid if he continues and being terminated for default if stops.
The rule has always been that modifications of an existing contract are permissible as long as the modification is within the scope of the original competitive procurement. (The same rule applies to the scope of the changes clause.) Since the Federal Acquisition Regulation (FAR) is no help here, the judicial tribunals have relied on the "cardinal change" doctrine to test whether the modification or change is in-scope on an awarded contract or violates the competition requirements of CICA on the award of a new contract. The cardinal change doctrine addresses whether a change or modification exceeds the scope of the contract changes clause.
What is a cardinal change? A cardinal change occurs when the government alters the work so drastically that it effectively requires the contractor to perform duties materially different from those originally required. The cardinal change doctrine prohibits an agency from compelling a contractor to perform beyond the scope of the original bargain. The contractor can stop work. In fact the contractor my risks not getting paid if he continues and being terminated for default if stops.
What is "materially different"? Lack of resemblance to the original work. Substantial changes in the type of work, performance period and cost of the work. It's a question of fact for which there is no mechanical or arithmetical answer. The courts and boards look to changes to the quantity of work, an increase in the cost of the work, the sheer number of changes, the cumulative effect of the changes to the work, change in the nature of the work, and changes to the time and place of the work.
So, what do you do if you think the change is so drastic it might be cardinal? You don't have to perform such a change. It's a breach of the contract. But if you don't, you may be terminated for default. The risk that you won't get paid if you continue is minimal. Just hire a professional and put together a claim. If continuing is impossible or practically so, you may be forced to stop work but you should have several defenses to a termination for default,
bill@sprigglawgroup.com
Friday,
No comments:
Post a Comment