Permits and Responsibilities

A contract was awarded to and A-E firm to develop an investigative report for the design and construction of a well water filtration system. The proposal stated that Water generated during the step-drawdown and 24-

hour pump test would be discharged into a storm sewer at the Site. The state requires submittal of a Temporary Discharge Authorization (TDA) Permit Application and several laboratory analyses, prior to allowing this type of discharge to the storm-sewer system. The contractor is now coming back with a change order to develop a storm water pollution prevention plan (SWPPP). Normally construction contractors develop this plan prioir to starting a major construction project. Since the above stated was mentioned in the proposal and the sub contractor is an expert in this area the development of the SWPPP should be at no cost to the Government. In addition FAR 52.236-7 states that the contractor shall, without additional expense to the Govt. be responsible for obtaining any necessary licenses and permits, etc...applicable to the performance of the work.

**Please share your thoughts.

mrbatesville, you are not very clear. I'm having to read between many lines to guess at what the scope of the contract is and what type of contract it is.

Please be more clear about what type of contract this is and the scope of work involved. An A-E firm is the contractor but for what type contract? Who is the subcontractor and what does its scope include?

Is it an A-E contract in connection with the separate drilling of a well? Is it a construction contract for drilling of a well? Is it a construction contract in connection with an existing well?

When you say "develop a report for the design and construction of a well water filtration system", are you talking about developing the design and installing a well screen in a new well or designing a separate filtration system for an existing well or something else?

You said that "the above stated was mentioned in the proposal". "What" was mentioned? In whose proposal was it mentioned? Was this a negotiated (A-E or construction) contract?

You mentioned Permits and Responsibilities Clause (FAR 52.236-7). This clause is prescribed for construction contracts, not A-E contracts.

If this is an A-E contract, the firm should have provided a proposal with a breakout of hours and other estimated fees. I feel that the A-E firm should have known what is required in order to estimate the efforts involved in the scope of work. If "the above stated was mentioned in the proposal", what are you in disagreement about?

If this is a construction contract, the Permits and Responsibilities clause is supposedly in the contract. If "the above stated was mentioned in the proposal", then what are you in disagreement about?

The ultimate answer to your question requires much more and clearer description of the circumstances.

mrbatesville:

While I agree with Joel that your information is sketchy, I'm going to take a shot.

If conduct of the investigation and preparation of the report entailed a step-drawdown test, and if the contractor knew that the water discharged by the test would go into the storm sewer at the site, then the contractor should have known of or discovered the requirement for the TDA permit and a SWPP plan during proposal preparation. (I presume that the plan is required by the TDA authorization authority and not your agency.) That being the case, there is no basis for the contractor to seek a contract change and equitable adjustment for development of the pollution prevention plan. The fact that the contractor did not include the cost of the plan in its proposal would not, in and of itself, be persuasive to me.

I haven't seen the solicitation or the contract and I don't know all of the facts, so take my conclusion for what it's worth, which is not much. There might be something in the solicitation or contract or in other facts that would justify a different conclusion.

Rather than come back to us with more information, you would do better to discuss this with an experienced contracting person or with a contracts attorney who is on the spot.

Mrbatesville said "Since the above stated was mentioned in the proposal..."

What that means I don't know. But it appears that either the cost of the SWPP or the scope for this effort or both were included in somebody's proposal...

However, mum is the word from MB.