This memo documents WSDOT’s detailed analysis of Protest 012 for internal use and Disputes Review Board (DRB) preparation. It contains internal reasoning, argument rebuttals, and strategic analysis that should not be shared with the Design-Builder.
WSDOT’s evaluation addresses three questions:
Finding Summary: The protest is without merit. TR 2.18.4.6.3 explicitly requires bucket truck access for CCTV maintenance. WSDOT enforced this existing requirement — it did not initiate a change under GP 1-04.4(1). The DB’s redesign costs are the cost of compliance with an existing contract requirement.
Finding: YES — TR 2.18.4.6.3 is explicit and unambiguous.
“The Design-Builder shall provide access in accordance with the WSDOT Northwest Region ITS Design Requirements (Appendix T). Maintenance vehicle access shall allow bucket trucks to park adjacent to the CCTV structure for maintenance of the CCTV and shall have adequate access on and off the roadway. Maintenance access shall be designed such that maintenance vehicles do not have to back into traffic.”
Key points: (1) “Bucket trucks” is specifically named. (2) This is a CCTV-specific provision. (3) “Shall” is mandatory. (4) Three distinct requirements: parking adjacent to CCTV structure; adequate access on/off roadway; no backing into traffic. (5) References Appendix T1, a Contract Document.
The DB’s core argument is that TR 2.18.5.2’s “current maintenance methods” language permits CLDs. This argument fails for three reasons:
T1 §1.12.2.1: “shall be reachable by the bucket truck.” T1 §2.3.2.3: 10-foot rule with bucket truck access requirement. The word “bucket truck” appears in three separate contract locations for CCTV maintenance. The DB cannot plausibly argue that “current maintenance methods” in 2.18.5.2 overrides three specific bucket truck references.
TR 2.18.4.7.1 (Variable Message Signs) contains virtually identical language: “Maintenance vehicle access shall allow bucket trucks to park adjacent to the VMS structure.” This parallel structure confirms that when the Contract requires bucket truck access for a specific ITS device type, it does so intentionally. It is a deliberate, consistent policy choice.
Finding: NO — WSDOT enforced an existing contract requirement during design review.
The March 2025 RCSR comment identified that the DB’s CLD design did not meet TR 2.18.4.6.3. This is the normal design review process — WSDOT reviewing Design Documents for consistency with Contract requirements. Per GP 1-04.4(5)(b): design changes required during this review process are the DB’s exclusive responsibility and are not eligible for change orders.
For an OIC under GP 1-04.4(1), WSDOT must “authorize and require changes in the Work within the general scope of the Contract.” WSDOT did not issue a Change Order, issue an oral directive to change the Work, or direct additional or different Work. WSDOT identified a non-compliant design. This is fundamentally different from directing a change.
LTR 294 includes AECOM’s PCN-00100 describing collaborative TF discussions and characterizing the CLD as an “agreed” solution. Why this narrative doesn’t establish entitlement:
| # | DB Argument | Why It Fails |
|---|---|---|
| 1 | CLD is a “current maintenance method” per 2.18.5.2 | TR 2.18.4.6.3 specifically requires bucket truck access for CCTV. Specific controls over general. CLD may be a current method elsewhere, but this Contract requires bucket truck for CCTV. |
| 2 | Appendix M1 showed camera on existing pole — no pullout shown | M1 is a Reference Document (BC classification). Per GP 1-03.1, reference documents are informational only and the DB relies on them at its own risk. TR controls over M1. |
| 3 | WSDOT initially discussed CLD as acceptable during early coordination | Per GP 1-03.7, WSDOT reviews and discussions do not constitute approval. Per GP 1-03.9, waiver of one breach doesn’t waive future enforcement. No written approval of CLD was ever given. |
| 4 | The RCSR rejection was “preferential” — WSDOT preferred bucket truck but Contract didn’t require it | TR 2.18.4.6.3 explicitly requires bucket truck. This is not a preference; it is a mandatory contractual requirement using “shall.” |
| 5 | NE 160th overcrossing makes a pullout impossible at this location | The DB accepted the Contract including TR 2.18.4.6.3 and existing site conditions. The DB is responsible for designing solutions that meet contract requirements within site constraints. The constraint was visible and ascertainable before proposal. |
| 6 | 8-month design standstill proves WSDOT caused delay | The standstill was caused by the DB’s discovery that its CLD approach did not meet TR 2.18.4.6.3. The DB bears responsibility for designing correctly. The time was spent exploring design alternatives, not waiting for WSDOT direction. |
| 7 | WSDOT owes equitable adjustment under GP 1-04.4(1) | No OIC was issued. GP 1-04.4(5)(b) explicitly excludes design review corrections from change order eligibility. No equitable adjustment is owed. |
The DB’s reading of the Contract renders TR 2.18.4.6.3 meaningless. If “current maintenance methods” in 2.18.5.2 permits any method the DB chooses (including CLD), then the specific mention of “bucket trucks” in 2.18.4.6.3 has no operative effect. The Contract would never need 2.18.4.6.3 — 2.18.5.2 would cover everything. This is a textbook surplusage argument.
Change Claim: Does NOT constitute a change. WSDOT enforced an existing contract requirement. GP 1-04.4(5)(b) explicitly excludes design review corrections. No change order warranted.
Cost Claim ($104,879): Not entitled. The claimed costs are for redesigning to comply with existing contract requirements. Per GP 1-04.4(5)(b), these are the DB’s exclusive responsibility. Note: WSDOT should distinguish between redesign costs (claimed here, DB’s responsibility) and additional construction costs for the pullout itself (not claimed here, may warrant separate analysis).
Schedule Claim: No entitlement established. The supplemental does not include a schedule analysis per GP 1-04.5(2)(d). The 8-month standstill was caused by the DB’s non-compliant design approach, not WSDOT direction. Preliminary position: deny.
Primary argument: TR 2.18.4.6.3 is explicit and unambiguous. The Contract says “bucket trucks.” The DB designed for a CLD. The design didn’t meet the contract requirement.
Supporting arguments: GP 1-04.4(5)(b) excludes design review corrections; GP 1-03.7 negates reliance on review discussions; Appendix M1 is a Reference Document; parallel VMS provision (TR 2.18.4.7.1) confirms intentional specificity.
Reliance argument: The DB may argue that WSDOT’s early discussions of CLD created reasonable reliance, and that the 8-month delay was partly attributable to WSDOT’s decision-making process. While GP 1-03.7 protects WSDOT’s legal position, a DRB may be sympathetic to an equitable argument about the delay period. WSDOT should be prepared to demonstrate what the DB should have done differently (i.e., read TR 2.18.4.6.3 and recognize the bucket truck requirement before designing for CLD).
“Current maintenance methods” interpretation: A DRB member could view CLD as a legitimate “current method.” WSDOT’s response should emphasize the specific-over-general canon and the surplusage argument (DB’s reading renders 2.18.4.6.3 meaningless).
| Section | Purpose |
|---|---|
| TR 2.18.4.6.3 | CCTV-specific bucket truck maintenance access requirement (controlling provision) |
| TR 2.18.5.2 | General ITS maintenance access — “current maintenance methods” (DB’s cited provision) |
| TR 2.18.4.7.1 | VMS bucket truck requirement — parallel provision confirming pattern |
| GP 1-03.1 | Reference Documents are informational only |
| GP 1-03.2 | Order of Precedence; specific over general; more stringent requirements control |
| GP 1-03.7 | Reviews/approvals do not constitute waiver |
| GP 1-04.1 | Contract Price includes cost of all Work needed to meet requirements |
| GP 1-04.4(1) | OIC framework — requires WSDOT to authorize and require a change |
| GP 1-04.4(5)(b) | Design review corrections are not eligible for change orders |
| GP 1-04.5 | Protest procedure |
| GP 1-08.8 | Extensions of Contract Time |
| Appendix A1 | Document classifications (M1 = BC Reference; T1 = C Contract Document) |
| Appendix T1 §1.12.2.1 | Maintenance access roads must be “reachable by the bucket truck” |
| Appendix T1 §2.3.2.3 | 10-foot pole rule — bucket truck access required |