Internal Memo — WSDOT Analysis

Protest 008 · Juanita Creek Angular Rock Replacement · February 25, 2026

INTERNAL — DO NOT DISTRIBUTE

I. Issue Summary

Skanska used angular rock as part of the Temporary Stream Diversion Plan (TSDP) at Juanita Creek. WSDOT identified that the use of angular rock in this context was non-compliant with environmental permits (HPA) and material specifications, and directed its removal and replacement (SL 9727-151, SL 9727-174, SL 9727-192). Skanska protested this direction via LTR 281 and supplemented via LTR 286, arguing that the angular rock was an acceptable construction means and method and seeking an Owner-Initiated Change (OIC) for the cost of replacement ($39,048.29). WSDOT denied the protest via SL 9727-208.

Resolution: Issue closed by mutual agreement December 26, 2025 (SL 9727-226). Skanska agreed to close Protest 008 in exchange for WSDOT closing a separate liquidated damages issue (SL 136). No cost adjustment was made.

II. Evaluation Framework

1. Was WSDOT’s direction appropriate? Yes. WSDOT enforced existing environmental permits (HPA) and material specifications. The use of angular rock in the stream diversion violated these requirements.
2. Is the Design-Builder’s assertion valid? No. While Skanska has discretion over construction means and methods, those methods must comply with all Contract requirements, including environmental permits and material specifications.
3. What is the appropriate path forward? Maintain the denial of Protest 008. The cost of replacing non-compliant material falls squarely on the Design-Builder. (Moot as of closure.)

III. Contract Analysis & Rebuttal

A. Means and Methods vs. Contract Compliance

Skanska argues that the selection of angular rock for the TSDP falls under their purview of construction means and methods. However, the Contract explicitly requires that all means and methods comply with Governmental Approvals (including the HPA) and Contract specifications.

Rebuttal: Discretion over means and methods does not grant the Design-Builder the right to use non-compliant materials. The angular rock violated the environmental permits for the stream diversion. WSDOT’s direction to replace it was a rejection of non-conforming work, not an OIC.

B. Environmental Compliance Responsibility

Per GP 1-04.1(1) and RFP Section 2.8, the Design-Builder is solely responsible for compliance with all Governmental Approvals. If the chosen TSDP methodology (using angular rock) violates the HPA, the Design-Builder must correct it at their own expense.

Rebuttal: WSDOT is not responsible for the cost impacts of the Design-Builder’s failure to select compliant materials for their temporary works.

C. No Owner-Initiated Change (OIC)

Skanska seeks to classify WSDOT’s rejection of the angular rock as an OIC.

Rebuttal: Rejecting non-conforming work and enforcing existing environmental permits does not constitute a change to the Contract. It is the enforcement of the baseline requirements. Section 1-04.4(5)(j) expressly lists “Correction of Nonconforming Work” as a matter not eligible for a Change Order.

IV. DRB Preparation Strategy (Superseded by Closure)

• Focus on Material Non-Compliance: The core defense is that the material (angular rock) was non-compliant with the HPA and stream diversion specifications.
• Distinguish from Design Issues: P008 is strictly a construction means-and-methods/material compliance issue, separate from design disputes in P005 and P003.
• Emphasize DB Responsibility: The Design-Builder bears the risk and cost for temporary works and environmental compliance.

Conclusion: WSDOT’s position in SL 9727-208 was solid. The defense rested on the fundamental principle that the Design-Builder must bear the cost of replacing non-compliant materials used in temporary works. Issue resolved by mutual agreement; no DRB referral made.

Prepared by WSDOT Project Team · February 25, 2026 · Protest 008 — Closed December 26, 2025