Section 401.12. Liability for prohibited discharge.

 

(1)  In this section:

(a) "Contract documents" means the written agreement between the department and the prime contractor that sets forth the obligations of the parties to the contract, including the invitation for bids, proposal, contract form and contract bond, standard specifications, supplemental specifications, interim supplemental specifications, special provisions, addenda, general plans, detailed plans, erosion control plan, ECIP, notice to proceed, permits issued by the department, and any contract change orders and agreements required to complete the construction of the work in an acceptable manner, including authorized extensions and erosion control orders.

(b) "Progress schedule" means the schedule that establishes completion dates for activities required in the contract documents, and interim completion dates, including revisions and updates to that schedule.

(2)  Except as provided in sub. (3) , activity necessitated by a prohibited discharge from a project or selected site shall be considered a department-directed revision to the contract and the department shall pay all costs associated with the discharge in accordance with contract documents.

(3)  

(a) The prime contractor shall pay all costs associated with a prohibited discharge from a project site or selected site if any of the following apply:

1. The prime contractor was not in compliance with the contract documents at the time of the prohibited discharge, and the failure to comply was a substantial contributing factor in causing, failing to prevent, or worsening the discharge. An inspection report prepared under s. Trans 401.10 that identifies non-compliance with the ECIP is not considered non-compliance with an ECIP unless an erosion control order is issued under s. Trans 401.105 and the changes or corrections required by the erosion control order have not been satisfactorily completed.

2. The performance under the contract documents has fallen behind the progress schedule and the prime contractor has not submitted to the project engineer a revised progress schedule within 5 days after receiving a written request from the project engineer to revise the progress schedule. This subdivision applies only if the failure to comply with the progress schedule was a substantial contributing factor in causing, failing to prevent, or worsening the discharge.

(b)

1. This subsection does not apply to any of the following prohibited discharges:

a. Discharges occurring after the project has been completed and accepted as final in the manner prescribed in the contract documents.

b. Discharges occurring from any portion of work for which the department has granted partial acceptance as provided in the contract documents.

2. This section does not apply to prohibited discharges from a utility facility project.

History: CR 02-081 : cr. Register December 2002 No. 564 , eff. 1-1-03.