Internal Memo — Protest 010 — BRT Station Waterproofing IED

Prepared for internal WSDOT use and DRB preparation · ISS-010 · Dispute Stage

1. Overview and WSDOT Strategy

Objective: Maintain a contract-strict interpretation requiring sheet membrane waterproofing and watertight elevator pits per S07/S21 specifications. Confirm SL 9727-209 and SL 9727-221 as correct. Close Protest 010 as “no merit.” Preserve a narrow, controlled DBIC path for the Design-Builder to seek Sound Transit approval of a substitution if they wish. Position WSDOT strongly for DRB proceedings.

Key Contract Levers:

• GP 1-03.2 — Technical Requirements and more stringent lower-tier requirements control; Technical Requirements take precedence over Mandatory Standards (building code)
• GP 1-03.5 — WSDOT may issue its own IED; IEDs do not create cost/time entitlement unless WSDOT expressly says so
• GP 1-04.1 — Contract Price includes cost of all Work needed to meet Contract requirements
• GP 1-04.4 — OIC/DBIC mechanics; only WSDOT-directed changes via Change Order create equitable adjustment
• GP 1-03.7 — Reviews, approvals, and RFI responses do not constitute waivers of requirements

2. Claim-by-Claim Analysis

2.1 Claim Group 1 — IED Authority (GP 1-03.5)

Skanska/AECOM Claim: GP 1-03.5 only permits IEDs at the DB’s request. WSDOT’s unsolicited SL 9727-209 is an unauthorized change, not an interpretation.

Contract Language: GP 1-03.5 (final paragraph): “WSDOT may issue a Written approval of the Design-Builder’s proposed Interpretive Engineering Decision (if any), may issue its own Interpretive Engineering Decision or may disapprove any Interpretive Engineering Decision the Design-Builder proposes. 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 Interpretation: The text expressly authorizes WSDOT to issue its own IEDs. It is not limited to responding to DB requests. The GP 1-03.5 last sentence expressly prevents IEDs from creating cost or time entitlement. WSDOT has not expressly provided otherwise. SL 9727-209 clarified existing S07/S21 requirements — it did not create new ones.

WSDOT Position: Disagree. No merit.

2.2 Claim Group 2 — Hycrete System vs. Contract Requirements

Skanska/AECOM Claim: The Hycrete Endure admixture with hydrophilic waterstops is code-compliant and warrantable. It satisfies the waterproofing intent of S07 14 24 00, DCM 25.4.1.J, and WABC/IBC 1805.3 “other approved materials.” Sheet membranes are not required when Hycrete achieves equivalent performance.

WSDOT Analysis:

• S07 07 10 00 and S07 07 13 53 independently specify membrane waterproofing at bottom slabs and below-grade exteriors. These are prescriptive requirements, not performance standards.
• S07 03 15 13 Part 2.01.C is decisive: self-expanding butyl strip waterstops used below grade in Hycrete concrete are “limited to locations where complete waterproofing membranes are provided on the exterior of the concrete.” The as-built configuration (Hycrete + hydrophilic waterstops, no exterior membranes) violates this express condition.
• GP 1-03.2: Technical Requirements and prescriptive specs control over building code “other approved materials” provisions. WABC 1805.3 is subordinate to S07/S21.
• Hycrete is not prohibited by the specs — its use below grade with this waterstop class is simply conditioned on exterior membranes.

WSDOT Position: Disagree. The as-built Hycrete-only configuration is non-compliant.

2.3 Claim Group 3 — RFI Approvals and Sound Transit Involvement

Skanska/AECOM Claim: RFI 565 (removal of membrane callouts) and RFI 627 (confirmation of revisions) were reviewed and not objected to. Sound Transit recommended Hydrotite products. These constitute acceptance of the Hycrete-only approach as “other approved materials.” WSDOT’s later IED is therefore a change (OIC), not an interpretation.

WSDOT Analysis:

• GP 1-03.7: WSDOT reviews, approvals, and oversight “do not constitute approval nor acceptance… or waiver of any Warranty” and WSDOT may later require corrective work.
• RFI responses are not Change Orders. No Change Order was issued approving the Hycrete-only approach or waiving S07 membrane requirements.
• WSDOT’s non-concurrence in RFI 627 and subsequent NCI and IED supersede any informal prior staff views.
• Sound Transit product recommendations are not contract approvals. WABC 1805.3 “other approved materials” requires AHJ formal approval — no such approval was obtained for this specific application.
• There has been no formal substitution or spec change approved per ST’s “Changes to the Prescriptive Specifications” process.

WSDOT Position: Disagree. RFIs and Sound Transit involvement did not alter contract specifications.

2.4 Claim Group 4 — Warranty Void Argument (LTR 310)

Skanska Claim (LTR 310): Applying sheet membranes to already-constructed Hycrete substrate would void the Hycrete warranty. The combined system was not designed as an integrated assembly; retroactive membrane application is technically infeasible without compromising the existing system.

WSDOT Analysis:

• WSDOT acknowledged this concern in SL 9727-239 and provided a practical accommodation: if membranes are applied to vertical surfaces, the elevator pit slab at Brickyard West need not be replaced.
• Warranty concerns are a design challenge for the DB to resolve. They do not override contract requirements. The DB is responsible for designing compliant systems (GP 1-04.1).
• The DBIC path remains available: the DB may pursue a formal DBIC for Sound Transit written approval of a specification change, which is the proper mechanism for seeking a substitution.

WSDOT Position: Accommodating on implementation sequence; firm on requirement. No cost/time entitlement.

3. DRB Preparation Notes

Primary Argument

S07 03 15 13 Part 2.01.C creates an explicit two-part requirement: use of butyl-strip waterstops in Hycrete concrete below grade is conditioned on the presence of exterior membranes. S07 07 10 00 and S07 07 13 53 independently require membrane waterproofing at these elements. The specs are internally consistent and prescriptive. GP 1-03.5 authorized the IED. No Change Order was ever issued.

DRB Vulnerability

Primary: The RFI reliance narrative. DB will argue that WSDOT staff reviewed and did not object to the Hycrete approach across multiple RFIs, Sound Transit was involved, and that WSDOT’s IED came as a surprise after significant work was already constructed. This is an equitable argument rather than a legal one. WSDOT should prepare to demonstrate: (a) GP 1-03.7 negates reliance on informal approvals, (b) no Change Order approved the configuration, (c) the NCI (non-conformance item) put the DB on notice that the configuration was non-compliant.

Secondary: The warranty void argument. If membranes cannot be practically applied to the as-constructed Hycrete substrate without creating a warranty/compatibility problem, the DRB may be sympathetic to an equitable outcome that avoids destroying already-installed work. WSDOT should present SL 9727-239’s accommodation (vertical surfaces / pit slab exception) as evidence of good-faith flexibility.

Key Documents for DRB

• S07 03 15 13 Part 2.01.C (waterstop conditionality) — the decisive provision
• S07 07 10 00 and S07 07 13 53 (independent membrane requirement)
• DCM 25.4.1.J (elevator pit groundwater prevention)
• RFI 627 non-concurrence — shows WSDOT did not formally accept the configuration
• NCI documentation — notice of non-compliance
• GP 1-03.5 text (WSDOT IED authority and cost/time limitation)
• GP 1-03.7 text (review/approval non-waiver)
• WSDOT Position Paper (complete at analysis/waterproofing/WSDOT_Position_Paper_Waterproofing_Final.md)

4. Key Contract References