Change Orders and their Role in Protecting Public Funds in Light of the Kuwaiti Public Tenders Law
Prof. Dr. Omar Abdul Rahman Al Bourini
Professor of Public Law
Kuwait International Law School
Abstract:
Protecting public money and ensuring that public facilities continue to provide their services regularly and steadily, require that the administrative body – vis-à-vis its contractors – have the authority to issue change orders during the implementation of its contracts, whether related to the subject of the contract or its duration. These orders are considered administrative decisions related to the contractual process and are inseparable from it. It is subject to a set of controls, whether they are general related to the subject of the contract, its financial ratios, its terms, and its legality in general, or they are related to procedural legal controls, which include presenting the change order to the competent authorities for approval, and the availability of financial funds for it. Since these orders are an integral part of the contractual process, they are subject to the supervision of the contract judge, but not the cancellation judge. The contracting party with the administrative authority has the right to resort to the contract judge to request compensation, or to cancel the contract, if it is impossible to implement it, as a result of these orders.
The study concluded that it is necessary to stipulate in the executive regulations of the Kuwaiti Public Tenders Law the change orders and their detail, in accordance with the general provisions of the Tenders Law. It is also necessary to oblige the contracting administrative authorities not to divide the change orders except according to controls that are at the discretion of the Central Agency for Public Tenders. In addition, it is appropriate for the Kuwaiti judiciary to oblige those contracting with the administration to continue implementing their contractual obligations and not stop implementing it, which means – on the contrary – giving the latter the right to assess the legality of the actions of the contracting administrative body.
This topic will be addressed through two sections, the first: relating to the nature of change orders, in terms of their definition, and their legal nature and basis. While the second section addresses the scope of issuing change orders, the legal controls contained therein, and the extent of judicial oversight over this.
Keywords: change orders, separate works, administrative contract, public facility, public money.