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    July 1, 2019 / Publications
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    Government Contracting Database

    Cardinal Change

    “A cardinal change occurs when the government effects an alteration in the work so drastic that it effectively requires the contractor to perform duties materially different from those originally bargained for.” Rumsfeld v. Freedom NY, Inc., 329 F.3d 1320, 1332 (Fed. Cir.), adhered to on denial of reh’g en banc, 346 F.3d 1359 (Fed. Cir. 2003); see also Krygoski Constr. Co. v. United States, 94 F.3d 1537, 1543 (Fed.Cir.1996) (citations omitted); AT&T Communications, Inc. v. Wiltel, Inc., 1 F.3d 1201, 1205 (Fed.Cir.1993); Allied Materials & Equip. Co. v. United States, 215 Ct.Cl. 406, 569 F.2d 562, 563–64 (1978). “By definition, a cardinal change is a change so profound that it is not redressable under the Changes Clause of the contract and renders the Government in breach.” Appeals of Gassman Corp., ASBCA No. 44975, 00-1 B.C.A. (CCH) ¶ 30720 (Dec. 29, 1999) (quoting AT&T Communications, Inc. v. Wiltel, Inc., supra).  

    A cardinal change “constitutes a material breach of the contract.” Alliant Techsystems, Inc. v. United States, 178 F.3d 1260, 1276 (Fed. Cir. 1999); see also Air–A–Plane Corp. v. United States, 187 Ct.Cl. 269, 408 F.2d 1030, 1033 (1969); General Dynamics Corp. v. United States, 218 Ct.Cl. 40, 585 F.2d 457, 462 (1978); Allied Materials & Equip. Co. v. United States, supra. “Such a material breach has the effect of freeing the contractor of its obligations under the contract, including its obligations under the disputes clause” to continue performance during the pendency of the dispute.” Id.  

    “There is no automatic or easy formula which can be used to determine whether a change (or changes) is beyond the scope of the contract.” Appeals of Gassman Corp., supra (quoting Edward R. Marden Corp. v. United States, 442 F.2d 364, 369 (Ct. Cl. 1971)); see also Wunderlich Contracting Co. v. United States, 351 F.2d 956, 966 (Ct. Cl. 1965). “In deciding whether a single change or series of changes is a “cardinal change,” one must examine the work done in compliance with the changes and ascertain whether it is essentially the same work that the parties bargained for when the contract was awarded.” Id. (citing Aragona Constr. Co. v. United States, 165 Ct. Cl. 382,390-91 (1964)). “A cardinal change can occur even when there is no change in the final product because it is the entire undertaking of the contractor, rather than the product, to which we look.” Rumsfeld v. Freedom NY, Inc., supra (quoting Edward R. Marden Corp. v. United States, 194 Ct.Cl. 799, 442 F.2d 364, 370 (1971)). 

    The cardinal change doctrine is also applied in bid protests when the government modifies a contract or a solicitation to such an extent that it constitutes a cardinal change. AT & T Communications, Inc. v. Wiltel, Inc., 1 F.3d 1201 (Fed.Cir.1993). The government is obligated to issue a new solicitation rather than modify a contract in such a manner, because out of scope contract changes must be awarded through a competitive process under the Competition in Contracting Act 41 U.S.C.A. § 3301 et seq. When the government modifies a contract or solicitation in a way that amounts to a cardinal change, disappointed bidders are entitled to bring protests “on the grounds that the changed contract is not that which was competed by the agency.” Golden Mfg. Co. v. United States, 107 Fed. Cl. 264, 274–75 (2012); see also CWT/Alexander Travel, Ltd. v. United States, 78 Fed.Cl. 486, 493–94 (2007).  

    “Nevertheless, the basic analytical framework of the cardinal change doctrine is the same whenever a protestor alleges that competition has been frustrated by modifications to a contract or solicitation, i.e., that the procuring agency has impermissibly strayed from the scope of the contract requirements that were advertised to offerors.” Id. “Thus, a protest that a task order or delivery order exceeds the scope of an underlying Indefinite Delivery/Indefinite Quantity (ID/IQ) contract implicates the cardinal change doctrine.” Id. see also Cal. Indus. Facilities Res., Inc. v. United States, 104 Fed.Cl. 589, 595–96 (2012); Bayfirst Solutions, LLC v. United States, 104 Fed.Cl. 493, 503–04 (2012); Solute Consulting v. United States, 103 Fed.Cl. 783, 792–93 (2012). “Similarly, the cardinal change doctrine has been applied in the pre-award protest context, where an offeror or potential offeror asserts that the government has impermissibly modified contract requirements during the procurement process, so that procurement law requires either resolicitation or some other change to the range of offerors remaining under consideration.” Id. see also Univ. of New Orleans, B–184194, 76–1 CPD ¶ 22, 1976 WL 8955 (Comp.Gen. Jan. 14, 1976). 

    Updated: September 9, 2018 

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