FAQ: Changing the Scope of Work after Closing

I am having a dispute with my technical end users, and hope that you can help. We went out with a Request for Proposals (RFP) for a certain scope of work, and now, after closing, the users want to amend the scope and ask respondents to resubmit. I don’t think that’s wise – what’s your advice?

Thanks for this question. It’s a common one.

The legal answer depends on how your RFP is worded, but the business answer remains the same: if your RFP gives wide latitude to make changes after closing and/or is specifically drafted to be a non-binding process, then the legal risk of making changes after closing is minimal. If you are in a binding Contract A situation, of course the legal risk is much greater.

From a business perspective, however, it is never a good idea to make major changes after closing unless that is specifically anticipated by the process (e.g., a “best and final offer” stage is incorporated).

Keep in mind that respondents have spent significant resources to respond to the initial opportunity, so although they may be prepared to resubmit on different scope in anticipation of contract award, this is an unanticipated layer of work for them. You will either pay for that extra work through increased pricing, or, at the very least, they will approach future procurements from your organization with more caution. Every RFx that you issue speaks volumes about the sophistication level and expertise of your procurement and user departments, so it is important to spend time in the procurement planning stage to get it right, regardless of the RFx model you are using.

This article was originally published in The Legal Edge on June 8, 2016

Readers are cautioned not to rely upon this article as legal advice nor as an exhaustive discussion of the topic or case.  For any particular legal problem, seek advice directly from your lawyer or in-house counsel.  All dates, contact information and website addresses were current at the time of original publication.