September 19, 2016  Dena Jensen

Okay, what’s past is past.  The vote was cast to extend the contract for the GPT EIS Preparation.  But a sell job was done by the Whatcom County Executive office and I think it is important to understand how it was a sell job.  I believe I have pinned this down for my own understanding and maybe this explanation will help others understand why “contract completion” of the GPT EIS preparation contract is not accurate to describe what has now been approved by the Whatcom County Council, and why “contract suspension” is accurate and clearly indicates the EIS preparation, thus the contract, will not be completed, and can carry on in the future if the county and CH2M HILL agree to do so. 

Not once in the actual Amendment 5.1 or Exhibit A, Attachment A is the term “contract completion” used.

In searching on the internet on the term “contract completion” I discovered it is a term that is used between contractors and their clients and that there actually are documents called “Certification of Contract Completion” with sign-able sections like this:

Contractor Certification
Contractor certifies that all Work, except as noted above, is 100 percent complete, is in conformance with the Contract Documents and that all other requirements for final payment and release of retainage have been completed. Contractor agrees that it shall complete all remaining work indicated above on or before the date or dates indicated, as a contract obligation.

and this:

CM and A/E Certifications
Each firm signing below certifies, based on actual observation and knowledge prior to signing, that all Work, except as noted, has been completed in substantial compliance with the contract documents.

There are no such sections included in the original Contract #201205028, CONTRACT FOR SERVICES AGREEMENT FOR EIS PREPARATION.  What seems to be in the contract in place of this is found in the General Conditions of the original contract under Series 00-09: Provisions Related to Scope and Nature of Services, and specifically 0.1 of the series:

0.1    Scope of Services:
The Consultant agrees to provide to the County services and any materials as set forth in the project narrative identified as Exhibit A, Attachment A during the Agreement period. No material, labor, or facilities will be furnished by the County, unless otherwise provided for in the Agreement.

I looked at all the past amended forms of the contract and for all of these versions, what really changes is Exhibit A, Attachment A which all have to do with the changes to the scope of work for the EIS Preparation contract.  For example with Amendment 2, CH2M HILL had received a deluge of scoping comments received in the final week of the scoping period, so they felt they needed more money to address the added labor and types of processing they would need to use to handle those comments. Thus, the scope of work changed with a budget modification for an “additional level of effort.” The rest of the scope of work remained the same, as stated in Amendment 1, Phase 1: Environmental Scoping Phase.

Amendment 5 included changes to the Scope of Work having to do with the launch of Phase 2 Administrative Draft EIS.  In the Introduction to the Attachment A specific to Amendment 5, it states: “Since the contract for Phase 2 of the Gateway Pacific Terminal/Custer Spur EIs — Phase 2 Adminstrative Draft EIS was executed in February 2014, a number of changes have occurred in the project assumptions and scope of work.”  It goes on to describe what those are and what the revised Scope of Work will be.

All of these amendments go toward the purpose of preparing the EIS, the stated purpose of the original contract.  The same following paragraph is in Amendments 4, 5, and the latest amendment, 5.1:

The general purpose or objective of this Agreement is to provide preparation of the Environmental Impact Statement to comply with NEPA and SEPA regarding the Gateway Pacific Terminal and BNSF Cuter Spur Modification Project, as more fully and definitively described in Exhibit A hereto.  This project will be contracted in a phased approach because the depth of the studies, and therefore time & costs, cannot be foreseen until Phase 2 is completed by the Consultant and accepted by the County.”

Yes, this paragraph is included in Amendment 5.1 that just got approved by the Whatcom County Council.  What changed was, once again, Exhibit A, Attachment A.  In it there is a Ramp Down Plan included that states, “The Scope of Work outlined below identifies the consultant team’s assumptions related to project suspension and the ramp down activities recommended to ensure that work is closed out in an orderly fashion and can be efficiently resumed at a future date.” It also states, “The activities described below would not be necessary were it not for the contract suspension and hence are an addition to contracted scopes of work,” and “The current project schedule, which assumes completion of the Draft Nepa and SEPA EISs in October 2016, is no longer in force.  Should work toward completion of the EIS be resumed, a new schedule will be developed.” (all emphasis mine)

So while Deputy County Executive Tyler Schroeder wanted to explain to the County Finance and Administrative Services Committee on September 13, 2016 on the morning before the evening meeting when county council members approved extending the contract suspension :

“This contract in front of you today is to amend the current contract, number 201205028, which is between Whatcom County and CH2M HILL to accomplish a ramp down work plan for contract completion. As you see in this memo there is a couple of different terms between suspension and completion and I want to be clear that this is contract completion,”

those different terms are ONLY in the memo, not in the amendment or contract itself.

At the same meeting, County Executive Louws wanted to reassure:

“We aren’t going to, we aren’t going to sit through years of holding this contract in – as an active contract, based on what they may or may not do.  We either need to finish it or close it. This closes it.”

But the contract amendment just signed by the County Council doesn’t close it at all.  There’s nothing in the amendment or the contract that says the contract is being closed.  What is there is language stating “Should work toward completion of the EIS be resumed, a new schedule will be developed.”