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  • Question

    Can you add clauses that were not included in the solicitation to the contract award?


    ANSWER: It depends on the nature of the clauses.  If they are purely administrative, then a simple amendment before award will suffice. If after award, and again we are only talking administrative clauses, then a bilateral contract modification is in order.
    If the clauses to be added are substantive, meaning they change the nature of the procurement (for example changing contract type, FOB point, new option clauses, a key personnel clause) then I would argue that the contract needs to be terminated and resolicited with the new clauses added.
    Also remember that the Christian Doctrine, while it has been eroded to some extent over the last 30 years, establishes that certain mandatory clauses are included in the contract by force of law, whether they actually appear in the physical contract or not.  Please talk to your legal office for additional information and an analysis based on the particular clauses in question.

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