1. Executive Summary
Decision Requested
Evaluate Skanska LTR 378 (March 16, 2026) and respond to the AECOM Notice of Dispute and three proposed resolution paths for the KCM power vault relocation claim.
- Recommendation: Deny — protest determination stands; evaluate resolution proposals on merits
- Cost Exposure: Not quantified; Force Account tracking in progress per SL 9727-188
- Risk Level: Moderate — unresolved legal authorization question for KCM ROW occupancy
Core Question
Does the KCM power vault qualify as a Major Underground Utility entitling Skanska to a WSDOT-Initiated Change, or is vault relocation within the Design-Builder’s base scope as a property improvement or appurtenance on the Right of Way?
Skanska requested a WSDOT-Initiated Change for relocation of a King County Metro (KCM) power vault encountered during construction on the I-405/Brickyard to SR 527 project. WSDOT determined the vault does not meet the definition of a Major Underground Utility under GP 1-07.17(9) (SL 9727-217, December 11, 2025) and reaffirmed that position on reconsideration (SL 9727-235, January 8, 2026). Skanska filed a formal protest on January 22, 2026 (LTR 327) and supplemented it on February 9, 2026 (LTR 345).
WSDOT denied the protest on March 2, 2026 (SL 9727-285), citing GP 1-07.17(9).4 Item 3 (no change order for inaccuracies in non-Major Utility information), GP 1-07.16(1) (DB must protect improvements legally on the ROW), and RFP Section 2.16.3.5.6 (existing vaults must meet heavy-duty standards or be relocated). Skanska responded on March 16, 2026 (LTR 378) — the last day of the 14-day dispute window — with two components: (1) a substantive rebuttal of SL-285 arguing that complete omission differs from inaccuracy and challenging the legal authorization for KCM’s ROW occupancy, and (2) an attached AECOM Notice of Dispute dated March 13, 2026, formally invoking Section 1-04.5(1) and reserving DRB referral rights.
WSDOT response to LTR 378 is due March 30, 2026. The dispute is assigned JS. Three resolution paths proposed by Skanska require evaluation: Force Account conversion under Section 1-09.6, WSDOT-Initiated Change under Section 1-04.4(1), and Cost Responsibility Determination under Section 1-07.17(10).
2. Skanska Assertions and WSDOT Position
Skanska Assertion
The KCM power vault is a Major Underground Utility under GP 1-07.17(9) and should be processed as a WSDOT-Initiated Change under Section 1-04.4(1).
WSDOT Position
WSDOT determined (SL 9727-217; SL 9727-235) the vault does not meet the Major Underground Utility definition. WSDOT’s final determination (SL 9727-285) further cited GP 1-07.17(9).4 Item 3, which bars a change order for “inaccuracies in Utility Information” for non-Major Utilities, and RFP Section 2.16.3.5.6, which requires existing vaults to meet Heavy Duty standards or be relocated — placing relocation within DB scope.
Skanska Assertion (LTR 378)
GP 1-07.17(9).4 Item 3 bars change orders for “inaccuracies” in utility information. The KCM vault was not listed in Appendix U2 (Existing Utility Listing), U3 (Utility Owner Contact List), or N1 as-builts at all. A complete omission is fundamentally different from an inaccurate depiction, and the provision should not apply.
WSDOT Position
WSDOT’s SL-285 did not directly address the omission/inaccuracy distinction. This argument requires a substantive response in the upcoming LTR 378 reply. Skanska’s reading has textual support if the provision is construed narrowly. WSDOT’s strongest counterargument is that GP 1-07.16(1) independently covers this situation by placing responsibility on the DB to protect all improvements legally on the ROW regardless of whether they appear in contract documents.
Skanska Assertion (LTR 378)
GP 1-07.16(1) requires the DB to protect improvements “legally on the Right of Way.” WSDOT has not produced any permit, franchise agreement, easement, or other authorization for KCM to occupy the Limited Access ROW. An undisclosed, unauthorized facility cannot be an improvement the DB was obligated to protect under GP 1-07.16(1).
WSDOT Position
Open item: WSDOT must verify whether documentation of KCM’s legal authorization for ROW occupancy exists. If authorization cannot be documented, WSDOT’s reliance on GP 1-07.16(1) is weakened. This is identified as a medium-priority open item requiring follow-up before the March 30 response deadline.
Skanska Assertion (LTR 378)
RFP Section 2.16.3.5.6 addresses WSDOT electrical infrastructure identified in the Contract Documents, not undisclosed third-party (KCM) facilities. The section cannot be invoked to place relocation responsibility on the DB for a utility that WSDOT failed to disclose.
WSDOT Position
Requires evaluation of RFP 2.16.3.5.6 text and context. If the section is limited to identified WSDOT infrastructure, Skanska’s argument has merit. WSDOT introduced this provision as a new basis in SL-285 (not raised in earlier letters), which means it has not yet been fully tested in the correspondence record.
3. Risk
Strengths
- WSDOT’s classification determination has been reaffirmed twice (SL 9727-217, SL 9727-235) and upheld through the formal protest process (SL 9727-285).
- GP 1-07.17(9).4 Item 3 provides a textual basis for barring a change order even if the vault information was inaccurate (WSDOT’s broader reading of “inaccuracies”).
- GP 1-07.16(1) places a general duty on the DB to protect improvements on the ROW, which could independently support denial regardless of utility classification.
Potential Weaknesses
- The omission/inaccuracy distinction raised in LTR 378 has textual support and was not addressed in SL-285 — creates a gap in the record that DRB may scrutinize.
- If WSDOT cannot document KCM’s legal authorization for ROW occupancy, the GP 1-07.16(1) defense collapses on its own terms.
- WSDOT’s classification shifted across letters (Major Underground Utility vs. Service Line vs. “property improvement/appurtenance”), which Skanska correctly notes as inconsistent — the term “property improvement/appurtenance” does not appear in the Contract.
- KCM’s refusal to provide direction and subsequent radio silence after the February 18 meeting leaves the path forward unclear and reflects poorly in the correspondence record.
Defense Layering
| Layer | Defense | Use In |
|---|---|---|
| 1. | GP 1-07.17(9).4 Item 3 — no CO for non-Major Utility information issues (WSDOT’s broader reading: “inaccuracies” encompasses omissions) | Determination / DRB |
| 2. | GP 1-07.16(1) — DB duty to protect improvements legally on ROW (contingent on KCM authorization documentation) | Determination / DRB |
| 3. | RFP 2.16.3.5.6 — vault must meet Heavy Duty standards or be relocated (scope argument) | Determination |
| 4. | Section 1-07.17(10) cost responsibility determination — Skanska’s own proposed resolution path; evaluating this could resolve without DRB | Resolution Negotiation |
Fallback Position
If a DRB determines the vault omission distinguishes this from GP 1-07.17(9).4, WSDOT may need to evaluate the Force Account conversion proposal (Skanska’s Resolution Path 1) or the Section 1-07.17(10) cost responsibility determination (Resolution Path 3) as settlement alternatives to avoid full DRB hearing on an unquantified claim.
4. Chronology
| Date | Event |
|---|---|
| 2025-10-17 | Skanska LTR 257 — Requests WSDOT-Initiated Change for KCM power vault relocation |
| 2025-10-30 | WSDOT SL 9727-188 — Will determine classification; directs Force Account tracking |
| 2025-12-11 | WSDOT SL 9727-217 — Vault does not qualify as Major Underground Utility |
| 2025-12-23 | Skanska LTR 303 — Requests reconsideration |
| 2026-01-08 | WSDOT SL 9727-235 — Reaffirms: not a Major Underground Utility or Service Line |
| 2026-01-22 | Skanska LTR 327 — Notice of Protest 013 |
| 2026-01-26 | WSDOT SL 9727-250 — Acknowledges protest; supplement anticipated by February 9 |
| 2026-02-09 | Skanska LTR 345 — Supplemental protest: KCM refused to direct; “property improvement” not defined in Contract |
| 2026-02-18 | KCM Vault Coordination Meeting — WSDOT, KCM, Skanska agree raise-to-grade is simplest; KCM later raises safety concerns |
| 2026-03-02 | WSDOT SL 9727-285 — Denies protest; cites GP 1-07.17(9).4, GP 1-07.16(1), RFP 2.16.3.5.6 |
| 2026-03-13 | AECOM Notice of Dispute — Formal dispute per Section 1-04.5(1); intends DRB referral |
| 2026-03-16 | Skanska LTR 378 — Response to SL-285 + 3 resolution proposals + AECOM Dispute Notice (attached). Last day of 14-day dispute window. |
5. Cost & Time
Skanska’s Claim
| Category | Amount |
|---|---|
| Claim Amount | Not quantified (Force Account tracking per SL 9727-188) |
| Schedule Impact | Not quantified |
| Total Cost Claimed | TBD |
| Schedule Extension | TBD |
Skanska’s Proposed Resolution Paths
| Path | Mechanism | Description |
|---|---|---|
| 1 | Section 1-09.6 | Convert existing Force Account work to agreed lump sum. WSDOT directed FA tracking in SL-188. |
| 2 | Section 1-04.4(1) | Change order for vault work as added scope from undisclosed site condition. |
| 3 | Section 1-07.17(10) | WSDOT determines KCM vault is WSDOT cost responsibility, processed as directed change. |
WSDOT Exposure Scenarios
| Scenario | Cost | Time |
|---|---|---|
| WSDOT position (full denial) | $0 | None |
| Resolution via FA conversion or CO | FA amount (TBD) | TBD |
| DRB hearing (worst case) | FA amount + markup | TBD |