§ 102-420. Contract modifications and change orders.

(a)

Statement of policy. Fulton County is committed to a policy of open, nondiscriminatory and competitive purchasing. When circumstances arise after award of a contract, requiring modification of that contract, such modification will be accomplished in accordance with the following procedure, to achieve the following goals:

(1)

Ensure that Fulton County does not pay more than is necessary to complete the contract;

(2)

Preclude a contractor from tendering the lowest bid and then increasing the cost of the contract through the change order process;

(3)

Ensure that the terms and conditions upon which the contract was awarded are met throughout the term of the contract, including any and all change orders;

(4)

Ensure that the change order procedure is not used to bypass the competitive bidding process; and

(5)

Ensure that change orders are not used for work that is independent of and outside the scope of the original contract.

(b)

Background. A change order is a written order form Fulton County to a contractor, directing a change within the scope of the contract and necessary for completion of the contract, in the specifications, services, time of performance or terms and conditions of the contract. A change is within the scope of a contract if it concerns the work required by the original contact documents and any subsequent change orders approved to accomplish the intent of the project as described in the solicitation documents.

A contractor is any person or entity, whether designated as a contractor, vendor, consultant or by any other title, having a contractual relationship with Fulton County. In Fulton County, except as otherwise provided in this article, change orders shall be affected only through a written, bilateral agreement (modification) between the county, acting through its board of commissioners, and the contractor. The modification modifies the contract and will specify all changes to the contract and the costs thereof.

(c)

Justification for change orders. Change orders are authorized only for the following reasons:

(1)

Situations creating an immediate need to protect the public health, safety or welfare;

(2)

Corrections of deficiencies in design or construction documents provided by architects or engineers other than the contractor;

(3)

Changes in applicable laws or regulations, or changes that result from public participation when such participation is mandated by laws or regulations;

(4)

Concealed conditions, differing site conditions or abnormal inclement weather;

(5)

Owner requested changes within the scope of the original contract. Such changes may include: Deductive change orders and accommodations of value engineering and administrative matters such as closeout change orders for unit price contracts, deductions for approved material substitutions and administrative no-cost change orders.

(d)

Change order authority. Except as otherwise provided in this article, change orders may be approved only by the board of Commissioners of Fulton County. Such approval shall be demonstrated by a formal vote on the contract modification.

(e)

Change order procedure. The ordinary sequence of a change order is as follows:

(1)

Need for contract modification is identified;

(2)

Contractor is requested to propose price for change and if necessary, schedule changes;

(3)

Contractor and county negotiate price and scope of change;

(4)

Agreement between county and contractor for change is clearly defined in a written modification;

(5)

Contractor signs modification and returns it to the county; and

(6)

Modification is submitted to the board of commissioners for approval.

Circumstances may alter this general description of change order procedure. The administrative actions necessary to accomplish a change order are described in subsection (f) of this section.

(f)

Administrative actions. Department heads have primary responsibility for completion of the administrative steps necessary to complete a change order. Such responsibility may be exercised through designees and in consultation with other interested departments.

(g)

County manager's authority. In the following described situations, the county manager is authorized to approve change orders and authorize the commencement of work pursuant to such change orders, subject to ratification by the board of commissioners. The board of commissioners will not withhold ratification unless there is credible evidence showing that the contractor induced or procured the change order by fraud.

(1)

Change orders less than ten percent of original contract amount.

a.

The county manger is authorized to approve change orders having a total cost that is less than ten percent of the original contract cost. A change order may be approved under this article if its cost, when combined with that of all previous change orders to the same contract, is an amount less than ten percent of the original contract cost. The county manager may decline to exercise this authority and return change orders for processing through the regular change order procedure, or may direct that the work be procured through the competitive process.

b.

Change orders submitted under this authority shall be processed according to the regular administrative procedures.

c.

Not more than 60 days following approval of a change order under this authority, the county manger shall have it spread on the minutes by placing it on the consent agenda and subsequently obtaining the signature of the chairman of the board of commissioners on the modification.

(2)

Extraordinary circumstances.

a.

The county manager is authorized to approve change orders regardless of the amount when due to extraordinary circumstances, work must be implemented before the board of commissioners can act. The county manager may decline to exercise the authority granted hereunder and may require that the change order be submitted under the regular procedure, or he/she may direct that the work be procured through the competitive process.

b.

The authority granted in this section may be exercised when immediate action must be taken to protect the county's interests, and only under the following circumstances (in addition to meeting the requirements of subsection (c):

(i)

Threat to public health, welfare or safety;

(ii)

Threat of litigation when it appears likely that litigation will be commenced and that the county's legal position may be comprised by delay in implementing the change order. Change orders citing this circumstance must be approved by the Office of the county Attorney; or

(iii)

Loss of substantial resources due to delay, including delay in critical path schedule.

c.

Department heads proceeding under this authority must comply with as much of the procedure set out in subsection (g)(1) as the situation will permit.

d.

At minimum, the following procedures must be observed.

(i)

The contractor shall execute a written contract modification that clearly describes the work to be done and its cost. If costs cannot be fully detailed due to the exigencies of the situation, the modification must set out a maximum cost and state that the cost will be definitized in a final change order.

(ii)

The department head shall obtain the approval of the purchasing agent, prior to submitting the change order to the county manager.

(iii)

The work may proceed upon approval by the county manager. The department head shall prepare all other documentation normally required for a change order.

(iv)

Not later than 60 days following approval of the change order, the county manager shall place the change order on the consent agenda.

(v)

In cases of change orders without definitized costs under subsection (i) above, the department head shall commence processing a final change order as soon as circumstances permit.

(Res. No. 13-0052, 1-23-13)

Note— Formerly Code, Pt. II, § 102-353. Board Policy 800-6, procedures for handling change orders.