| Authority/Reference(s) | |
|---|---|
| Revision Date | June 1, 2020 |
Policy
A contract amendment is a written change to the contract. At any point during the life of the contract, DFPS or the contractor may need to change a contract. Contract staff can modify the contract by executing a bilateral or unilateral amendment. DFPS must approve all changes to the contract.
The procurement and contract documents serve as a guide to determine whether a change is allowable. To initiate a change to a contract, contract staff review the procurement document to determine if the change is within the scope of the procurement. This may require collaboration between HHS-PCS, Contracts Legal, COS, and contract leadership. If the contract change is allowable, contract staff determines whether the change requires a bilateral or unilateral amendment.
A contract change must not alter the scope of the original procurement. If a change may alter the scope, contract staff must consult with contracting leadership and Contracts Legal. If the contract change alters the original scope, a new procurement is necessary.
An amendment cannot be retroactive without legal approval.
Examples:
- Provide new or additional services not described in the original procurement;
- Provide services in geographic areas not defined in the original procurement; or,
- Extend beyond the base term established in the original procurement (see Contract Extensions).
Bilateral Amendment
A bilateral amendment (Form 9077) is a change to the essential terms of a contract (including the base term of the contract or any attachments) that must be executed by DFPS and the contractor. A bilateral amendment is typically not used to change the Open Enrollment documents posted on the ESBD or HHSC Open Enrollment website, some exceptions may apply.
Examples of bilateral amendments include changes made to the:
- Statement of Work;
- Terms and Conditions;
- Contract period; or,
- Contract price (increase or decrease to the contract value*) or encumbrance or annual encumbrance.
*Changes to negotiated service rates require a bilateral amendment. The contract manager can execute a unilateral amendment for rates changed by statute, rule, or legislation (e.g., Residential daily rates, Medicaid rates, blended rate for the Single Source Continuum Contract (SSCC).
As a best practice, notify the contractor before initiating an amendment in CAPPS FIN to avoid unnecessary work in the amendment process.
Unilateral Amendment
A unilateral amendment (Form 5648) is an administrative change to a contract that is executed by DFPS. DFPS signs the amendment and sends it to the contractor. The amendment is effective on the date documented in the unilateral amendment.
DFPS may initiate a unilateral amendment for the following types of changes without prior review by Contracts Legal:
- Correct an obvious clerical error;
- Modify a contract number or Agency ID Number;
- Update service level description or daily rates;
- Change either party's contract manager or contact information;
- Change any recorded license number based on information obtained from the agency or entity issuing the license; and,
- For Open Enrollments-to add or delete a geographic service area, service delivery location, or service type, if it is part of a current open enrollment.
Contracts Legal must review unilateral amendments with the following changes before implementation:
- Incorporate new or revised state or federal laws, regulations, rules, or policies;
- Comply with a court order or judgment; or,
- Update contractor's name as recorded by the Secretary of State, as required by law, or as authorized by DFPS;
For contractor-initiated unilateral amendments, the contract manager must document the contractor’s request (email is acceptable) of the change before sending the contractor the unilateral amendment. If the contractor disagrees with a DFPS-initiated unilateral amendment the contractor and contract manager should discuss and attempt to resolve the issue.
Termination Amendment
DFPS or the contractor can seek to terminate the contract before the contract expiration date. The contract staff must initiate a termination amendment through CAPPS FIN. For termination information, refer to Contract Termination.
Delegated Signature Authority
The same level of signature authority for the contract is responsible for signing bilateral amendments, including renewals, unless the commissioner or designee invokes the exclusive right to sign the contract or any succeeding modifications. When a bilateral amendment changes the total contract value and the value exceeds the delegated authority threshold, the higher delegated signatory must sign the amendment. Contract staff must justify the reason for the change in value and maintain the documentation on file.