INTERNAL MEMO — DO NOT SEND

Protest 014: NB405 Bridge 405/103E Widening — ATC-1 Interpretation

Date: 2026-03-12
Prepared by: WSDOT Claims Analysis
Subject: Protest 014 — NB405 Bridge 405/103E Widening / ATC-1 Interpretation — Internal Analysis and DRB Preparation
Responding to: Skanska LTR 356 (Feb 20, 2026) — Notice of Protest 014; Skanska LTR 370 (Mar 6, 2026) — GP 1-04.5(2) Supplemental
Determination deadline: ~March 27, 2026 (21 calendar days after supplemental receipt per GP 1-04.5)

Evaluation Framework

1. Does ATC-1 require structural continuity between the widening and the existing structure? YES.
2. Does WSDOT’s correction of “Forward Compatibility” terminology withdraw the ATC-1 requirement? NO.
3. Is the Design-Builder entitled to cost or time adjustments? NO.

Finding Summary: The protest is without merit. ATC-1 was approved unconditionally and is incorporated into the contract through the DB’s Proposal. ATC-1 text (Items 3, 4, 6) and Figure 2 establish structural continuity. The DB is not entitled to adjustments.

I. Contract Analysis

Controlling Provisions

ATC-1 Incorporation

ATC-1 was approved unconditionally during the procurement phase and is incorporated into the contract through the DB’s Proposal. Per GP 1-03.2, the DB’s Proposal (including all approved ATCs) forms part of the contract documents. ATC-1’s text and figures are binding contract requirements, not merely suggestions or design guidance.

Read-Together Analysis

When ATC-1 Items 3, 4, and 6 are read together with Figure 2 and the unmodified RFP 2.13.4.1.2 continuity requirement, a single coherent picture emerges: the widening must be structurally continuous with the existing bridge. The DB’s attempt to parse individual items in isolation ignores the contract’s integrated structure. Figure 2 (C-227) depicts a COMBINED SPREAD FOOTING with continuous widening — this is the graphic expression of the textual requirements.

Pillar 1 — Forward Compatibility Correction Does Not Withdraw ATC-1 Requirement

WSDOT corrected the “Forward Compatibility” terminology in SL 9727-237 but expressly reaffirmed the underlying structural continuity requirement. The label was imprecise; the requirement (Items 3, 4, 6) stands independently of whatever terminology is used to describe it.

Correspondence Sequence:

• SL 9727-201 — WSDOT initial direction
• LTR 288 — Skanska response
• SL 9727-237 — WSDOT corrects terminology, reaffirms requirement
• LTR 333 — Skanska response
• SL 9727-262 — WSDOT reaffirms position

The correction of a label does not withdraw the substance. Items 3, 4, 6, and Figure 2 exist independently of whatever name WSDOT or Skanska attach to the concept. Skanska’s argument conflates terminology correction with substantive withdrawal.

Pillar 2 — ATC-1 Text Establishes Structural Continuity

This is the core of the dispute. Each ATC-1 element independently supports structural continuity:

• Item 3: “spread footings will be combined” — “combining” presupposes combination. The word itself means to join into a single unit. “Final design of combining…determined during final design” defers the how, not the whether.
• Item 4: Pier Wall per Figure 2 — “act as extended shear wall for the new widening.” A shear wall that “acts for” the widening is structurally integral to the widening.
• Item 6: “widened to match the existing structure” — in context, “match” means structural compatibility, not merely aesthetic resemblance.
• Figure 2 (C-227): Depicts a continuous structure with COMBINED SPREAD FOOTING. The graphic is unambiguous.
• RFP 2.13.4.1.2: “continuous beam across pier” requirement was NOT removed by ATC-1. ATC-1 modified foundation requirements (drilled shafts to spread footings) but did not touch the continuity provision.

ATC-8 Consistency Rebuttal: The DB may argue that ATC-8 demonstrates a different approach. ATC-8 addresses a different bridge with different conditions and different contract provisions. Different bridges have different contracts — this comparison is irrelevant.

Pillar 3 — GP 1-03.2 Clause 3 Binds DB to ATC Commitments

GP 1-03.2 Clause 3 establishes that where the DB’s Proposal offers higher quality, additional services, or terms more advantageous to WSDOT, those commitments are binding. The clause operates in one direction only — it elevates the DB’s commitments but never reduces contract requirements.

Continuous widening per ATC-1 qualifies under all three categories:

1. Higher quality: Structural continuity provides superior seismic and load-transfer performance.
2. Additional services: ATC-1 commits the DB to a specific design approach beyond the base RFP requirements.
3. Terms more advantageous to WSDOT: A continuous structure serves WSDOT’s long-term asset management interests.

Pillar 4 — GP 1-04.4(5)(n) Risk Allocation Is Absolute

GP 1-04.4(5)(n) states that ATC implementation costs are the DB’s exclusive responsibility. This provision is absolute — it does not contain exceptions for cost increases, unforeseen difficulties, or changed interpretations. Regardless of the outcome of the structural continuity question, the DB bears the cost of implementing ATC-1 as written.

Pillar 5 — Comment #9 Closure Does Not Constitute Acceptance

HIGHEST PRIORITY — New argument requiring detailed rebuttal.

Terry Bondy (sheet BF06) asked why the closure pour was NOT shown — a comment that questions an omission. AECOM mischaracterizes this as a neutral inquiry. Eight-point rebuttal:

1. The comment questions an omission. Bondy asked why the closure pour was not shown. The question itself presupposes that it should have been shown. This is a flag, not an endorsement.
2. GP 1-03.7 defines “approved.” Per GP 1-03.7, “approved” means conformance to contract. Approval of a submittal does not waive contract requirements that the submittal failed to address.
3. Pang did not close it. The reviewer who raised the comment is not the same as the individual who resolved it. Comment tracking records must be examined for who actually marked closure.
4. Design review is iterative. Comments at the preliminary stage do not constitute final acceptance. The design review process contemplates multiple rounds of refinement.
5. DBIC was the proper vehicle. If the DB intended to deviate from ATC-1 requirements, the contractually proper path was a Design-Builder Initiated Change (DBIC), not silent omission from a submittal.
6. Contract text was available throughout. ATC-1 text and Figure 2 were available to all parties at every stage. Comment closure does not override written contract provisions.
7. “Reversal” is a mischaracterization. WSDOT did not reverse its position. WSDOT identified a nonconformance and directed compliance. That is standard contract administration.
8. AECOM’s language escalates within a single document. AECOM’s characterization of the comment history grows more aggressive within its own submission, revealing advocacy rather than factual recitation.

Pillar 6 — Reliance/Estoppel Fails

The reliance/estoppel argument fails on multiple grounds:

• Contract text was available throughout. ATC-1, Items 3, 4, 6, and Figure 2 were accessible to the DB at all times. The DB cannot claim reliance on comment closure when the underlying contract provisions remained unchanged.
• Comment closure does not create a vested right. No contract provision converts submittal comment resolution into a waiver of contract requirements.
• WSDOT has been consistent since March 2025. After the issue was identified, WSDOT provided consistent direction through:
  • RFI 461 response
  • RFI 461.1 response
  • Type Selection Workshop
  • SL 201 through SL 262
• Design work after March 2025 was not reliance. Any design work performed after WSDOT raised the continuity requirement was done with full knowledge of WSDOT’s position.
• RFI 461 undermines the reliance argument. If the DB truly believed comment closure constituted acceptance, why submit RFI 461 questioning the requirement? The RFI itself demonstrates the DB understood the issue was unresolved.
• RFI 461 reveals a second ATC deviation. The RFI also surfaces that culvert protection as proposed in ATC-1 was infeasible — further evidence that the DB was aware its design did not conform to ATC-1 commitments.

Pillar 7 — Changed Geotechnical Conditions Don’t Change Contract Text

The DB argues that changed geotechnical conditions justify deviating from ATC-1’s structural continuity requirement. This argument fails because:

• ATC-1’s obligation is unconditional. The text does not contain a geotechnical contingency. Items 3, 4, 6, and Figure 2 apply regardless of subsurface conditions.
• The proper path is DBIC. If geotechnical conditions make ATC-1 implementation more difficult or expensive, the contractually proper path is a Design-Builder Initiated Change, not unilateral deviation.
• WSDOT offered to support a DBIC. WSDOT expressly offered to support a DBIC for infill shear walls as an alternative approach to meeting the structural continuity requirement. The DB has not pursued this path.

Pillar 8 — BDM and Industry Practice Don’t Override Contract

• External standards do not override specific contract text. The Bridge Design Manual and general industry practice are reference materials. Where specific contract provisions (ATC-1 Items 3, 4, 6, Figure 2, RFP 2.13.4.1.2) address a topic, those provisions control.
• Different bridges have different contracts. Comparisons to other bridge widenings are irrelevant where this contract contains specific ATC-1 commitments.
• November 13, 2025 RCSR meeting demonstrates WSDOT flexibility on HOW. WSDOT has shown flexibility on the means of achieving structural continuity. The dispute is not about how to achieve continuity but whether it is required. The meeting notes confirm WSDOT’s willingness to work collaboratively on implementation while maintaining the contractual requirement.

Pillar 9 — Sonia Berriz Statement Does Not Undermine WSDOT

The DB cites a Sonia Berriz statement to suggest internal WSDOT disagreement. This argument actually supports WSDOT:

• The statement supports WSDOT’s position. Berriz stated: “do not believe design meets contract requirements.” This is consistent with, not contrary to, WSDOT’s formal position.
• Internal consultant comment predates formal position. The comment was made in an internal context before WSDOT’s formal position was established through the correspondence chain.
• Boris Sizivu same-date email affirms requirement. Boris Sizivu’s email on the same date states: “Contract requires different approach.” Multiple WSDOT personnel independently reached the same conclusion.

II. Rebuttal of LTR 356 Assertions

Rebuttal of LTR 370 Supplemental Assertions

Pre-Empted Counter-Arguments

III. Gaps in Their Submittal

• A. No analysis of “combining” language. The DB does not address the plain meaning of “spread footings will be combined” in Item 3. “Combining” presupposes combination.
• B. Selective reading of ATC-1 Items. The DB focuses on isolated phrases while ignoring Items 4 and 6. The contract must be read as a whole.
• C. No analysis of GP 1-04.4(5)(n). The DB does not address the absolute risk allocation for ATC implementation costs. This provision alone defeats the cost claim.
• D. Conflation of terminology correction with substantive withdrawal. The DB treats WSDOT’s correction of the “Forward Compatibility” label as a withdrawal of the underlying requirement. The correspondence shows the opposite.
• E. Berriz statement is internal, predates formal position. The DB relies on an internal consultant comment as evidence of WSDOT disagreement, when the statement actually supports WSDOT’s position.
• F. RFI 461 undermines reliance argument. The DB’s own RFI 461 demonstrates that the DB understood the continuity issue was unresolved. If comment closure constituted acceptance, the RFI would have been unnecessary.
• G. Pat’s admission undercuts design flexibility argument. “Thought they would be ok” reveals the DB knew the approach was questionable, not that it was contractually established.
• H. Type Selection Workshop: “ATC is baseline TODAY, anything else is DBIC.” The workshop record directly contradicts the DB’s position that the continuity requirement was withdrawn or never existed.

IV. Direction Already Provided

Rebuts any claim that WSDOT has not provided sufficient direction.

WSDOT has provided three written communications over six months, maintained a consistent position throughout, and offered to support a DBIC for alternative approaches to meeting the structural continuity requirement.

V. Entitlement Analysis

• No change. ATC-1 was approved unconditionally and incorporated into the contract. WSDOT has not changed the contract requirements. The DB’s design did not conform to the contract as written.
• Not entitled to cost. GP 1-04.4(5)(n): ATC implementation costs are the DB’s exclusive responsibility.
• Not entitled to time. GP 1-04.4(5)(m) and (n): ATC-related schedule impacts are within the DB’s risk allocation.

VI. Disposition of Relief Requested

VII. Path Forward

Option A — Deny after supplemental review. Issue determination denying Protest 014 on all grounds. Reaffirm SL 9727-262 and the structural continuity requirement. Cite dispute procedures per GP 1-04.5(1). The determination must address each pillar concisely, with emphasis on Pillar 5 (Comment #9) as the DB’s strongest new argument.

Option B — Proactive DRB preparation. Begin assembling the DRB position paper now. Structure around the nine pillars. Prepare witness outlines for Berriz, Sizivu, Bondy, and Pang. Compile the full comment #9 history with original records (not AECOM’s characterization). Prepare a read-together exhibit showing ATC-1 Items 3, 4, 6, and Figure 2 side by side.

Recommendation: Pursue both concurrently. The determination deadline (~March 27, 2026) requires prompt action on Option A, while DRB preparation should proceed in parallel given the near-certainty that the DB will escalate to dispute.

INTERNAL MEMO — Prepared 2026-03-12. Nine-pillar analysis covering ATC-1 structural continuity, Forward Compatibility correction, Comment #9 closure, reliance/estoppel, geotechnical conditions, BDM/industry practice, Berriz statement, GP 1-03.2 Clause 3, and GP 1-04.4(5)(n) risk allocation. DRB preparation recommended concurrent with determination.