1. Executive Summary
Decision Requested
Determine WSDOT’s position for DRB proceedings on Skanska’s claim that the discontinuation of the Clivus Multrum M54 composting toilet constitutes commercial impracticability entitling the Design-Builder to a compensable change order for the SR-522 BRT Hub comfort station redesign.
- Recommendation: Deny — Design-Builder initiated the comfort station change at the June 11, 2024 meeting; commercial impracticability does not shift product availability risk to WSDOT
- Cost Exposure: $615,875 claimed (Skanska $106,888 + AECOM $508,987); WSDOT position is $0
- Risk Level: Moderate — commercial impracticability doctrine creates some analytical complexity; strong “who initiated” factual defense
Core Question
Did the Design-Builder or WSDOT initiate the SR-522 Hub comfort station change, and does the discontinuation of the Clivus Multrum M54 composting toilet constitute commercial impracticability entitling the Design-Builder to a compensable change order?
Skanska requested an OIC in August 2025 (LTR 218), claiming the Clivus Multrum M54 composting toilet specified in the contract is no longer manufactured, creating commercial impracticability. Skanska sought compensation for redesigning the SR-522 BRT Hub comfort station with alternative holding tanks and a building rotation to accommodate different equipment. WSDOT denied the OIC in SL 9727-136 (August 8, 2025), finding that the Design-Builder initiated the change at the June 11, 2024 meeting and that this was not a WSDOT-initiated change.
WSDOT issued a revised response adding RFP Section 1-03.5 (Ambiguities) as an additional basis in SL 9727-138 (August 15, 2025). After a formal protest (LTR 225), an initial 14-day supplement (LTR 231), and a revised supplement expanding the scope to include building rotation (LTR 253, $615,874), WSDOT found no merit in SL 9727-195 and suggested Skanska submit a Design-Builder-Initiated Change (DBIC). Skanska filed a Dispute Notification in LTR 282 (November 20, 2025). WSDOT acknowledged and is awaiting the formal Dispute Referral per RFP Section 1-04.5(1).18.
WSDOT’s core position is twofold: (1) the Design-Builder initiated the comfort station change — the June 11, 2024 meeting record will be critical evidence; and (2) commercial impracticability under the contract places product availability risk on the Design-Builder, not WSDOT. The Design-Builder knew or should have known at the time of proposal that product lines can be discontinued, and the contract does not provide relief for this risk.
2. Skanska Assertions and WSDOT Position
Skanska Assertion
Skanska asserts in LTR 225 that the Clivus Multrum M54 composting toilet, which was specified (or implicitly required) by the contract for the SR-522 BRT Hub comfort station, is no longer manufactured. Skanska argues this constitutes commercial impracticability and entitles the Design-Builder to a compensable change order for the costs of redesigning the comfort station with alternative holding tanks and building rotation.
WSDOT Position
Commercial impracticability does not shift product availability risk to WSDOT on a Design-Build contract. The Design-Builder is responsible for means, methods, and material selection within the contract requirements. If a specific product specified in the RFP is no longer available, the Design-Builder has an obligation to propose an alternative through the appropriate contractual mechanism (e.g., DBIC per GP 1-04.4(2)) — not to claim an OIC. The discontinuation of a proprietary product line is not the kind of unforeseeable event that gives rise to commercial impracticability as a legal matter; product availability risk is allocated to the Design-Builder. Furthermore, RFP Section 1-03.5 establishes that the Design-Builder had the obligation to identify ambiguities before bidding.
Skanska Assertion
Skanska contends that WSDOT directed or initiated the change to the comfort station design, and that the June 11, 2024 meeting does not accurately characterize the source of the change as Design-Builder-initiated. Skanska has framed this as a WSDOT-initiated change (OIC) throughout the protest process.
WSDOT Position
WSDOT’s consistent position since SL 136 is that the Design-Builder initiated the comfort station change at the June 11, 2024 meeting. This is a critical factual dispute. The meeting record from June 11, 2024 is the key piece of evidence — it will show who raised the comfort station change and who proposed the alternative approach. If the Design-Builder raised the issue and proposed alternatives, it cannot then claim WSDOT “initiated” the change. WSDOT also noted in SL 195 that the appropriate mechanism is a DBIC, not a protest.
Skanska Assertion
Skanska’s revised supplement (LTR 253) expanded the scope beyond the holding tanks to include building rotation costs, totaling $615,874.57 (Skanska $106,887.57 + AECOM $508,987). The building rotation was added because the alternative holding tanks required a different building orientation. Skanska also claims an 8-week schedule delay.
WSDOT Position
The scope expansion to include building rotation reinforces that this is a Design-Builder-initiated change: the Design-Builder chose a holding tank solution that necessitated building rotation. If the Design-Builder had properly evaluated alternative systems at the time of proposal, the design would have been optimized without requiring a later rotation. The cost claim of $615,874.57 is heavily weighted toward AECOM design fees ($508,987), suggesting the actual field cost is modest relative to the design overhead. The 8-week delay claim is unsupported by a critical path analysis. WSDOT’s SL 195 finding of “no merit” encompasses the full scope including building rotation.
3. Risk
Strengths
- WSDOT’s position that the Design-Builder initiated the change (June 11, 2024 meeting) is a strong factual defense — if the meeting record supports this, the OIC framing collapses
- Consistent written positions across SL 136, SL 138, and SL 195
- WSDOT proactively suggested the DBIC mechanism, demonstrating good faith while preserving its denial position
- The building rotation added in the revised supplement is a self-selected design consequence, not a WSDOT requirement
- Commercial impracticability doctrine is narrow and requires extraordinary circumstances beyond normal commercial difficulty
Potential Weaknesses
- If the contract expressly specifies the Clivus Multrum M54 by name (rather than by performance spec), the “product unavailable” argument may gain some DRB sympathy
- The June 11, 2024 meeting characterization is disputed — if meeting minutes are ambiguous or missing, this weakens the “DB initiated” argument
- AECOM’s $508,987 in design fees is a large proportion of the total claim; if any portion is attributable to genuine redesign complexity, the DRB may award partial costs
- DRBs tend toward equitable outcomes; a product genuinely discontinued by the manufacturer may receive some sympathy even if the legal doctrine is inapplicable
Defense Layering
| Layer | Defense | Use In |
|---|---|---|
| 1. | Design-Builder initiated the change at the June 11, 2024 meeting — OIC requires WSDOT direction (GP 1-04.4(1)); none given | DRB Referral / Hearing |
| 2. | Commercial impracticability doctrine does not apply — product availability risk allocated to Design-Builder; DBIC is the proper mechanism (GP 1-04.4(2)) | DRB Referral / Hearing |
| 3. | Building rotation is a self-selected design consequence, not a WSDOT-imposed requirement | DRB Referral / Hearing |
| 4. | No schedule analysis demonstrating 8-week critical path impact (GP 1-04.5(2)(d)) | DRB Referral / Hearing |
Fallback Position
If the DRB finds the Clivus Multrum M54 discontinuation creates partial entitlement, limit any award to the direct cost of specifying and procuring an equivalent alternative holding tank system only — not AECOM design overhead, not building rotation, and not schedule relief unless critical path impact is demonstrated.
4. Chronology
| Date | Event |
|---|---|
| 2024-06-11 | Key meeting — Design-Builder initiated comfort station change discussion; Clivus Multrum M54 no longer manufactured (per WSDOT finding in SL 136) |
| 2025-08-01 | Skanska LTR 218 — Requests OIC for SR-522 Hub comfort station; Clivus Multrum M54 no longer manufactured |
| 2025-08-08 | WSDOT SL 136 — OIC denied; Design-Builder initiated change at June 11, 2024 meeting |
| 2025-08-15 | WSDOT SL 138 — Revised denial; adds RFP Section 1-03.5 (Ambiguities) reference |
| 2025-08-29 | Skanska LTR 225 — Notice of Protest 004; asserts commercial impracticability; requests 75-day extension |
| 2025-09-04 | WSDOT SL 147 — Denies 75-day extension; requires 14-day supplement per RFP Section 1-04.5 |
| 2025-09-18 | Skanska LTR 231 — 14-day supplement with preliminary cost breakdown and schedule analysis |
| 2025-10-02 | WSDOT SL 172 — Supplement insufficient; grants opportunity for complete supplement |
| 2025-10-16 | Skanska LTR 253 — Revised supplement: $615,874 total; 8-week delay; detailed AECOM analysis; adds building rotation to scope |
| 2025-11-06 | WSDOT SL 195 — No merit; suggests Skanska submit DBIC per GP 1-04.4(2) |
| 2025-11-20 | Skanska LTR 282 — Dispute Notification per RFP Section 1-04.5(1) |
| 2025-12-09 | WSDOT SL 213 — Responds to dispute; requests Dispute Referral per Section 1-04.5(1).18 |
| ~2026-03-20 | Dispute Referral from Skanska pending — DRB proceedings cannot begin until referral filed |
5. Cost & Time
Skanska’s Claimed Amount (from LTR 253)
| Component | Amount |
|---|---|
| Skanska forces (comfort station redesign & building rotation) | $106,887.57 |
| AECOM design subconsultant (detailed analysis & redesign) | $508,987.00 |
| Total Claimed | $615,874.57 |
| Schedule Extension Claimed | 8 calendar weeks |
WSDOT Exposure Scenarios
| Scenario | Cost | Time |
|---|---|---|
| WSDOT position (full denial) | $0 | None |
| DRB partial (direct tank substitution costs only) | ~$50K–$150K | None |
| Worst case (full DRB award) | $615,875 | 8 weeks |
Relief Requests and Disposition
| Relief Requested | WSDOT Disposition |
|---|---|
| OIC for Clivus Multrum M54 discontinuation | Denied — DB initiated at June 11, 2024 meeting (SL 136) |
| Cost recovery for alternative tank design & building rotation ($615,875) | Denied — No merit; DB should submit DBIC (SL 195) |
| Schedule relief (8-week delay) | Denied — No schedule analysis demonstrating critical path impact |