N.J. Admin. Code § 6A:23A-21.1

Current through Register Vol. 57, No. 1, January 6, 2025

Section 6A:23A-21.1 - Change orders and open-end contracts

(a) Changes in quantities, work performed, services rendered, materials, supplies, or equipment delivered or provided shall not be authorized, permitted, or accepted, except by the procedures established in this section. All change orders shall be in accordance with N.J.A.C. 5:30-11, as applicable, and the following:

1. Each change order shall be in writing and shall be numbered consecutively (beginning with the number one) for each project or contract;

2. Change orders that result in payment reduction below the originally contracted price may be made by locally established procedure, provided that any change orders increasing costs on the same contract shall include reference to such reductions;

3. Quantities of items or work shall not be changed in such a manner as to nullify the effect of the competitive determination of lowest responsible price that was made at the time of contract award, provided that at said time the changes could have been reasonably foreseen; and

4. Responsibilities that are required by this section to be exercised specifically by the district board of education or charter school board of trustees may not be delegated. In those instances in which authority is to be exercised by a school official, the authority, responsibility, and required procedures shall be clearly spelled out in advance, by resolution.

(b) Orders placed under open-end contracts shall not be considered change orders for purposes of this section.

(c) Change orders for capital project contracts shall be in accordance with N.J.A.C. 6A:26-4.9.

(d) Change orders for contracts for materials, supplies, and equipment that are not part of a capital project contract shall be governed by the following:

1. Change orders may be used to change the number of units or items originally advertised and contracted for, provided:

i. Unit prices were sought at the time of advertising and included in the contract; and

ii. The advertising and the contract included a provision that the unit prices could be so used.

2. Change orders shall not be used to substantially change the quality or character of the items to be provided, inasmuch as such factors would have been a factor in the original bidding.

3. The net cost of changes shall not exceed the originally awarded contract price by more than 20 percent.

4. Availability of funds shall be certified by the school business administrator/board secretary prior to authorizing any change orders that increase costs.

5. Changes may be effectuated by the school official authorized to serve as purchasing agent, subject to contracts or approval requirements the district board of education or charter school board of trustees lawfully imposes.

6. Change orders may be authorized by the purchasing agent for price adjustment for petroleum products, provided:

i. The school board attorney has determined that such a price adjustment is authorized by law;

ii. The original bidding specifications and contract so authorize;

iii. An objective price benchmark not under the direct control of the supplier is utilized to establish the price changes, and the changes are not for the purpose of correcting asserted bidding errors; and

iv. Adequate funds have been certified as being available.

(e) Change order for professional and extraordinary unspecified services (EUS) contracts are governed by the following:

1. Changes shall be within the scope of activities of the original contract, and not for the purpose of undertaking new or different work or projects. Changes in payments for activities within the scope of the contract's activities shall be in accordance with a schedule of specific charges or rates contained in the contract and shall be effectuated by a written change order authorized by the appropriate school official. If such a schedule is not included in the contract, the contract shall be amended to provide for same.

2. If the change is not within the scope of the original contract's activities:

i. If the contract was awarded without competitive bidding being required by law or rule (as in the case for professional services and certain authorized extraordinary, unspecifiable services per N.J.S.A. 18A:18A-5.a(2)), any change beyond the original scope of activities may be made by amendatory contract; and

ii. If the consulting contract was not a contract for "professional services," as defined at N.J.S.A. 18A:18A-2.h, and was required to be subject to competitive bidding, any change beyond the original scope of activity shall be by new contract based on new bidding.

3. The school business administrator/board secretary shall certify the availability of funds and that all required approvals have been received pursuant to N.J.A.C. 6A:23A-13 prior to authorizing any change order that increases costs.

4. An amendatory contract may be effectuated by the same method required for the authorization of the original contract.

(f) The issuance of purchase orders pursuant to an open-end contract shall be considered to be the carrying out of the contract and not a change order. The following requirements shall apply:

1. A district board of education or charter school or renaissance school project board of trustees shall not issue or order purchase orders under open-end contracts for purposes that would change the quality or character of items to be provided, or exceed the maximum number(s) of items or units provided for in the original specifications and contract. Such changes may be made only pursuant to an approved change order;

2. The district board of education or charter school or renaissance school project board of trustees shall execute an open-ended contract for a period not to exceed the requirements of the Public School Contracts Law, N.J.S.A. 18A:18A-1 et seq., unless specifically authorized by law;

3. The district board of education or charter school or renaissance school project board of trustees shall execute a certificate of availability of funds covering the amount of the order each time an order is placed against the open-ended contract, unless the district board of education or charter school or renaissance school project board of trustees decides to commit and certify at the outset the full amount of the open-end contract. The certificate shall be executed before the district board of education or charter school or renaissance school project board of trustees incurs a contractual liability on its part; and

4. The school official authorized to serve as purchasing agent pursuant to N.J.S.A. 18A:18A-2 shall place such orders subject to the controls or approval requirements that are lawfully imposed by the district board of education or charter school or renaissance school project board of trustees.

N.J. Admin. Code § 6A:23A-21.1

Amended by 49 N.J.R. 1079(a), effective 5/1/2017

Amended by 56 N.J.R. 2166(a), effective 11/4/2024