Decision Requested

Determine WSDOT’s position for DRB proceedings on Skanska’s claim that WSDOT caused compensable delay by reopening approximately 40 previously resolved BRT station design review comments.

• Recommendation: Deny — Proceed to DRB; WSDOT’s design review authority is contractually unrestricted and the Design-Builder bears responsibility for resolving all design issues
• Cost Exposure: $1,867,700 claimed (Skanska $840,000 + AECOM $1,027,700); WSDOT position is $0
• Risk Level: Moderate — comment reopening narrative creates some vulnerability; strong contract authority defenses available

Core Question

Did WSDOT’s design review activities — specifically reopening approximately 40 previously resolved comments — constitute a compensable WSDOT-initiated change, or were those activities within WSDOT’s unrestricted contractual design review authority?

Skanska notified WSDOT in April 2025 (LTR 168) that WSDOT had allegedly reopened approximately 40 previously resolved design review comments for the BRT station facilities, causing a claimed 55-day delay and $1,236,713 in additional design costs. WSDOT denied the request for an Owner-Initiated Change (OIC) in SL 9727-100, finding no eligibility for adjustment — design review is within WSDOT’s contractual authority and the Design-Builder remains responsible for resolving all design issues regardless of the volume or sequence of comments.

After a formal protest (LTR 180), multiple supplement exchanges, and a corrected supplement (LTR 213), WSDOT maintained its denial in SL 9727-134 (August 6, 2025). Skanska then escalated to a Dispute Notification (LTR 222, August 20, 2025), revising its claimed amount upward to approximately $1,867,700 (Skanska $840,000 + AECOM $1,022,770) and asserting a 55-day delay with 10 days self-mitigated. WSDOT acknowledged the dispute in SL 9727-152 and is awaiting the formal Dispute Referral per RFP Section 1-04.5(1).18 before DRB proceedings begin.

WSDOT’s core position is that design review — including revisiting prior comments when design submissions are insufficient — is inherently within the contractual scope of the Owner’s review rights. The Design-Builder bears the risk and cost of achieving compliant design, and no volume of review comments constitutes a compensable change. WSDOT denies the claimed 55-day delay is owner-caused and disputes the cost substantiation.

Strengths

• WSDOT’s design review authority under a DB contract is broad — GP 1-03.7 confirms oversight activities do not constitute approval or create entitlement
• GP 1-04.4(5)(b) expressly excludes design changes required for contract consistency from change order eligibility
• Multiple consistent written positions (SL 100, SL 123, SL 134) maintaining denial — no inconsistency for Skanska to exploit
• Skanska’s cost amount escalated between submissions (from $1,236,713 to $1,867,700), suggesting the claim was not well-grounded at inception
• WSDOT granted reasonable accommodation (45-day supplement extension in SL 109), demonstrating good faith

Potential Weaknesses

• If the record shows specific comments were formally closed/accepted and then substantively changed, the “reopening” narrative gains traction with the DRB
• DRBs on DB contracts may be sympathetic to claims that iterative design review comments exceed the scope of normal review
• AECOM’s $1,022,770 share represents a large design cost that will require detailed scrutiny of actual hours and attribution
• Skanska partially mitigated the claimed delay (10 days), which may be used to argue the remaining 45 days is unreasonably attributable to WSDOT

Defense Layering

Layer	Defense	Use In
1.	WSDOT’s design review authority is contractually unrestricted — no volume or sequence of comments constitutes a change (GP 1-03.7; GP 1-04.4(5)(b))	DRB Referral / Hearing
2.	No critical path delay demonstrated — Skanska has not shown comments delayed a contract milestone (GP 1-04.5(2)(d))	DRB Referral / Hearing
3.	Cost claim procedurally deficient and substantively unsupported — three different amounts across LTR 199, LTR 213, and LTR 222	DRB Referral / Hearing
4.	Comments characterized as “reopened” were legitimately unresolved — DB cannot bootstrap entitlement from iterative review	Reserve for Hearing

Fallback Position

If the DRB finds that some comments were improperly “reopened,” limit any award to directly attributable AECOM hours for those specific comments only, excluding Skanska markup and general delay damages. Resist any schedule relief unless critical path impact is demonstrated with a contemporaneous analysis.