1. Executive Summary
Decision Requested
Prepare for Disputes Review Board (DRB) referral on Protest 010. WSDOT’s position is that SL 9727-209 correctly interpreted existing contract requirements and that the Design-Builder must install sheet-applied membrane waterproofing and watertight elevator pits at Brickyard West, East, and Canyon Park BRT stations at its own cost.
- Recommendation: Deny all claims — proceed to DRB. Position Paper complete.
- Cost Exposure: $1,239,862 claimed (Skanska $1,011,594 + AECOM $228,268)
- Risk Level: Low-to-moderate — contract language is explicit; main vulnerability is DB’s RFI reliance argument
Core Question
Do the contract specifications (S07 07 10 00, S07 07 13 53, S07 03 15 13, and DCM 25.4.1.J) require below-grade sheet-applied membrane waterproofing and watertight elevator pits at the BRT stations, or did prior RFI responses and Sound Transit product recommendations effectively waive those requirements in favor of the Hycrete admixture system already installed?
WSDOT issued SL 9727-209 on December 3, 2025, as an Interpretive Engineering Decision (IED) under GP 1-03.5, requiring sheet-applied membrane waterproofing and watertight elevator pits at three BRT stations. Skanska protested via LTR 287 (December 5, 2025), arguing the IED was an impermissible WSDOT-initiated action rather than a clarification, that the Hycrete-based system already installed meets the intent of the specs, and that prior RFI responses and Sound Transit product guidance constituted approval of the as-built configuration.
WSDOT denied all claims via SL 9727-221 (December 19, 2025) and again via SL 9727-239 (January 9, 2026). The S07 07 13 53 specification independently requires sheet membrane waterproofing at bottom slabs and below-grade exteriors. S07 03 15 13 Part 2.01.C expressly conditions the use of butyl-strip waterstops in Hycrete concrete on the presence of exterior membranes. DCM 25.4.1.J requires elevator pits to prevent groundwater entry. The as-built Hycrete-only configuration is non-compliant with the prescriptive specs, regardless of product performance claims. RFI responses and Sound Transit recommendations do not constitute Change Orders and cannot override contract specifications under GP 1-03.7.
Skanska filed a Dispute Notification via LTR 331 (January 23, 2026) per RFP Section 1-04.5(1), proceeding with work while disputing. WSDOT’s Position Paper is complete. The dispute is awaiting DRB referral.
2. Skanska Assertions and WSDOT Position
Skanska Assertion
GP 1-03.5 provides for IEDs at the Design-Builder’s request. WSDOT’s unsolicited issuance of SL 9727-209 was contrary to that procedure, constituting a WSDOT-directed change rather than an interpretation. Because it introduced new requirements not previously communicated, it creates entitlement to an equitable adjustment under GP 1-04.4.
WSDOT Position
GP 1-03.5 expressly authorizes WSDOT to “issue its own Interpretive Engineering Decision” — it is not limited to responding to DB requests. The provision also provides that “No Interpretive Engineering Decision by WSDOT shall form the basis for an increase in the Contract Price or extension of the Contract Time, unless WSDOT expressly provides otherwise in writing.” WSDOT did not express otherwise. SL 9727-209 clarified existing S07/S21 requirements; it did not create new ones. No Change Order was issued because no change occurred.
Skanska Assertion
The Hycrete Endure admixture with hydrophilic waterstops is a fully warrantable, code-compliant waterproofing solution. It satisfies S07 14 24 00, DCM 25.4.1.J, and the WABC/IBC 1805.3 “other approved materials” standard. Sheet membranes and the Hycrete system address the same performance objective. The specs do not explicitly require both simultaneously.
WSDOT Position
S07 07 10 00 and S07 07 13 53 independently specify membrane waterproofing at bottom slabs and below-grade exteriors. S07 03 15 13 Part 2.01.C conditions the use of butyl-strip waterstops in Hycrete concrete on the presence of exterior membranes. The combination Skanska implemented — Hycrete plus hydrophilic waterstops without exterior membranes — is expressly not permitted by Part 2.01.C. Hycrete is not prohibited, but below-grade use with this class of waterstop requires exterior membrane compliance. Under GP 1-03.2, the Technical Requirements and prescriptive specs control over building code “other approved materials” provisions.
Skanska Assertion
RFI 565 (removal of WPR-1/WPR-2 membrane callouts) and RFI 627 (confirmation of revisions) were reviewed and the Hycrete-based approach was accepted as compliant. Sound Transit’s recommendation of Hydrotite products further confirms acceptance. WSDOT’s later insistence on membranes constitutes an OIC/change, not interpretation of an existing requirement.
WSDOT Position
RFI responses and Sound Transit product recommendations are not Change Orders. Per GP 1-03.7, WSDOT oversight, reviews, and approvals “do not constitute approval nor acceptance… or waiver of any Warranty” and WSDOT may later require corrective work. Even if some staff at various stages indicated provisional agreement, WSDOT’s non-concurrence in RFI 627 and the subsequent NCI and IED supersede any informal view. There has been no formal substitution or spec change approved, and no Change Order has been issued. The WABC 1805.3 “other approved materials” standard requires AHJ formal approval and does not override contractually higher Technical Requirements.
Skanska Assertion
Skanska LTR 310 argues that applying sheet membranes to work already constructed with Hycrete would void the waterproofing warranty. The combined system was not designed as an integrated assembly; retroactive membrane application is technically problematic and changes the risk allocation.
WSDOT Position
WSDOT acknowledged this concern in SL 9727-239 and clarified the path forward: if the membrane is applied to vertical surfaces, the elevator pit slab at Brickyard West need not be replaced. The contract specifications are the requirement. The DB is responsible for achieving compliance within those requirements. The path to compliance (including DBIC for Sound Transit written approval) remains available. Warranty concerns do not override contract requirements; they are a design challenge the DB must resolve as part of meeting the spec.
3. Risk
Strengths
- S07 03 15 13 Part 2.01.C expressly conditions Hycrete waterstop use on exterior membranes — the spec combination is internally self-consistent and specific
- S07 07 10 00 and S07 07 13 53 independently require membrane waterproofing; neither is contingent on another spec
- GP 1-03.5 explicitly permits WSDOT to issue its own IEDs; the “unauthorized IED” argument has no textual support
- GP 1-03.7 negates reliance on RFI responses as approvals or waivers
- DCM 25.4.1.J is unambiguous on elevator pit watertightness
- GP 1-03.2 Order of Precedence places Technical Requirements over building code provisions
- No Change Order was ever issued approving the Hycrete-only approach; the DB cannot point to any formal approval document
Potential Weaknesses
- RFI reliance narrative: DB will argue that RFI 565/627 and Sound Transit involvement constitute substantive WSDOT acceptance; DRBs can be sympathetic to equitable reliance arguments
- Practical complexity: Retroactive membrane installation on partially constructed stations raises genuine constructability concerns the DB will present graphically
- WSDOT staff involvement in the ST product review process may be characterized as implied approval
- Warranty void argument (LTR 310) has some logical force if membranes are applied to an already-cast Hycrete substrate
Defense Layering
| Layer | Defense | Use In |
|---|---|---|
| 1. | S07 03 15 13 Part 2.01.C creates an explicit two-part requirement: Hycrete waterstops below grade require exterior membranes. Contract is unambiguous. GP 1-03.5 authorized the IED. | DRB Referral / Primary |
| 2. | GP 1-03.7: No RFI, review, or Sound Transit recommendation constitutes a formal approval or waiver. No Change Order was issued. The as-built configuration was never formally approved. | DRB Referral / Anti-reliance |
| 3. | GP 1-03.2 Order of Precedence: Technical Requirements trump WABC/IBC building code “other approved materials.” Even if Hycrete is “other approved” under building code, it does not satisfy the prescriptive contract specs. | DRB Hearing |
| 4. | GP 1-03.5 last sentence: No IED by WSDOT creates entitlement to price or time increase unless WSDOT expressly states otherwise. WSDOT did not. | Cost/Time Reserve |
Fallback Position
If DRB finds some reliance credit is warranted based on RFI/ST involvement, WSDOT should argue that reliance damages are limited to incremental costs above what a compliant design would have cost from the start — not the full membrane installation and elevator pit rework. WSDOT’s offer of a DBIC path (WSDOT SL 9727-239: if membrane applied to vertical surfaces, pit slab at BY West need not be replaced) demonstrates good-faith flexibility on implementation sequence.
4. Chronology
| Date | Event |
|---|---|
| 2025-12-03 | WSDOT SL 9727-209 — IED requiring sheet-applied membrane waterproofing and watertight elevator pits at Brickyard West, East, and Canyon Park BRT stations |
| 2025-12-05 | Skanska LTR 287 — Notice of Protest 010 against waterproofing and elevator pit requirements |
| 2025-12-19 | WSDOT SL 9727-221 — Acknowledges Notice of Protest; confirms Written Determination forthcoming |
| 2025-12-19 | Skanska LTR 301 — Supplemental information; claims inconsistency; proposes accepting Work as constructed |
| 2025-12-31 | Skanska LTR 310 — Responds to SL 221; asserts spec as written would void warranty; suggests DBIC to eliminate membrane requirement |
| 2026-01-09 | WSDOT SL 9727-239 — Denies all claims; suggests DBIC for Sound Transit written approval; if membrane applied to vertical surfaces, pit slab at BY West need not be replaced |
| 2026-01-23 | Skanska LTR 331 — Dispute Notification per RFP Section 1-04.5(1); will proceed with work as directed while disputing |
| 2026-01-23 | Dispute filed. Position Paper complete. Awaiting DRB referral. |
5. Cost & Time
Skanska’s Claim
| Component | Amount |
|---|---|
| Skanska (construction costs) | $1,011,594.36 |
| AECOM (design costs) | $228,268.10 |
| Total | $1,239,862.46 |
| Schedule Extension | Not claimed |
WSDOT Exposure Scenarios
| Scenario | Cost | Time |
|---|---|---|
| WSDOT position — deny all claims | $0 | None |
| DRB partial — reliance credit for RFI period only | $100K–$300K (est.) | None |
| Worst case — DRB finds IED was a change | $1,239,862 | TBD |
Relief Requests and Disposition
| # | Relief Requested | WSDOT Disposition |
|---|---|---|
| 1 | Accept Work as constructed (Hycrete-only, no membranes) | Denied — Does not comply with S07 07 13 53 or S07 03 15 13 Part 2.01.C |
| 2 | Cost adjustment of $1,239,862 for membrane installation and elevator pit work | Denied — GP 1-03.5: IED does not create cost entitlement; GP 1-04.4(5)(b): design compliance is DB’s responsibility |
| 3 | Recognition that SL 9727-209 was an unauthorized, change-creating IED | Denied — GP 1-03.5 expressly authorizes WSDOT-initiated IEDs |