1. Executive Summary
Decision Requested
Protest resolved. WSDOT denied Skanska’s $196,848.74 Force Account claim via SL 9727-271 (February 20, 2026) and SL 9727-282 (February 27, 2026). 14-day dispute window expired approximately March 13, 2026. DSC 007 track remains active under separate determination.
- Recommendation: Full denial — ISSUED via SL 9727-271 and SL 9727-282
- Cost Exposure: $196,848.74 claimed; WSDOT exposure = $0 on protest track
- Risk Level: Low on protest track (resolved); Moderate on DSC 007 track (active)
Core Question
Does GSP 2-02.5.OPT7.GR2 provide Force Account payment for contaminated soil removal at Site ID 6 (BNSF ROW, Area 5), or does Section 2.8.5.8 place known contamination handling within the lump sum scope?
Skanska encountered contaminated soil (arsenic, lead, TPH, creosote) during excavation at the former BNSF railroad ROW (King County Parcel 0926059170, Area 5). Skanska submitted a $196,848.74 Force Account claim for 910.9 tons of Class 2/Class 3 material removed at $113/ton disposal rate. WSDOT initially directed Force Account tracking (SL 9727-189) and issued a DSC determination (SL 9727-224), then reversed course on January 23, 2026 (SL 9727-248): the contamination was disclosed in contract documents (Appendices E09a2 and E09a5), therefore no DSC exists and Force Account payment is not available.
Skanska formally protested SL-248 on February 6, 2026 (LTR 344), raising five arguments centered on Change Order 040’s incorporation of GSP 2-02.5.OPT7.GR2. WSDOT denied the protest via SL 9727-271 (February 20) and a supplemental denial via SL 9727-282 (February 27). The core analysis: Section 2.8.5.8 (Technical Requirements) places known contamination handling within “The Work” for the lump sum Contract Price. Under GP 1-03.2(2)’s “notwithstanding” clause and Section 2.8.2, Technical Requirements take precedence over GSPs as Mandatory Standards regardless of CO 040’s precedence position. Additionally, GP 1-03.3 excludes GSP payment provisions from Standard Specifications integration, and the GSP’s own payment pathway (via GP 1-09.6) excludes original scope items.
After the protest was resolved, Skanska filed a fresh DSC notice (LTR 376, March 13, 2026) asserting contamination was encountered partially outside the disclosed parcel boundary. This is the same PCO-156 claim pursued under a different contractual mechanism. A DSC 007 determination is due approximately April 3, 2026.
2. Skanska Assertions and WSDOT Position
Skanska Assertion (LTR 344-1)
Change Order 040 has highest precedence under GP 1-03.2. CO 040 explicitly incorporates GSP 2-02.5.OPT7.GR2, which provides Force Account payment for hazardous material handling. Therefore, GSP 2-02.5 has the force of a Change Order and overrides Section 2.8.5.8.
WSDOT Position
Three independent defenses, each sufficient: (1) Section 2.8.2 lists “Special Provisions (Appendix B)” as Mandatory Standard #1 within the Technical Requirements. GP 1-03.2(2) “notwithstanding” clause provides TR controls over all Mandatory Standards listed within the TR — regardless of CO 040’s precedence. (2) GP 1-03.3 excludes “measurement and payment Sections” from Standard Specifications integration. GSP 2-02.5 is titled “Payment” — it is excluded. (3) GSP 2-02.5 itself references GP 1-09.6 for payment authority; GP 1-09.6 excludes original scope items from Force Account. The GSP defeats itself on its own terms. CO 040 was a no-cost version correction (2023→2022 Std Specs), not a substantive modification creating new payment entitlements.
Skanska Assertion (LTR 344-2)
Appendix E09a5 committed WSDOT to developing project-specific GSPs and SPs for hazardous material handling at Site ID 6. WSDOT failed to deliver these provisions. This omission creates ambiguity that should be construed in Skanska’s favor, and the generic GSP (2-02.5.OPT7.GR2) is the proper payment mechanism.
WSDOT Position
Section 2.8.5.8 IS the provision WSDOT developed to address contamination risk. It places disclosed contamination in the lump sum scope through a deliberate two-track framework: Section 2.8.5.8 (disclosed contamination = base scope = lump sum; no DSC pathway) vs. Sections 2.8.5.8.1/.2 (undisclosed items = DSC potential = separate payment). E09a5’s recommendations were written for a Low-risk, staging-only context. Skanska’s design choice to excavate does not retroactively create an unfulfilled WSDOT obligation. GP 1-03.5 precludes the ambiguity argument: ambiguities are not construed against the drafter (WSDOT) and Skanska had the obligation to raise pre-bid concerns.
Skanska Assertion (LTR 344-3)
GP 1-09.6 provides Force Account for work “not otherwise provided for.” No bid item or lump sum line item exists for contamination handling at this specific location, so Force Account applies.
WSDOT Position
This work IS provided for. Section 2.8.5.8 explicitly states: “The Work shall include inspection, mitigation, handling, and disposal of any known or suspected contamination.” Per GP 1-04.1(1), “The Work” is included in the lump sum Contract Price. GP 1-09.6 itself states: “An item which was included in the original scope of the Work will not be paid as force account unless a change as defined in Section 1-04.4 has occurred.” No change has occurred — contamination was disclosed. The absence of a specific bid item does not mean the work is unprovided-for in a lump sum design-build contract.
Skanska Assertion (LTR 344-4 / LTR 376)
Arsenic at Class 3 levels (23.6 mg/kg exceeding MTCA Method A of 20 mg/kg) is materially different from “suspected” contamination disclosed in contract documents. Further, contamination was found outside the area delineated in E09a2, with GPS coordinates showing some excavation partially outside parcel 0926059170.
WSDOT Position
On “materially different”: Appendix E09a2 identified “Metals” as a contaminant of concern. Atlas tested for “RCRA 8 Metals by EPA Method 6020B” — the standard panel for “Metals” — because that was the disclosed COC. Arsenic is one of the eight RCRA metals. It is squarely within the disclosed category. Lube oil is a Total Petroleum Hydrocarbon — within the disclosed “TPH.” Section 2.8.5.8’s “any” qualifier is not limited by concentration or classification. On “outside the area”: Site ID 6 is defined by King County Parcel Number 0926059170 in both E09a2 and E09a5 — not by shaded areas on E09a1 Figure 2. Skanska’s own consultant (Atlas) scoped sampling “within the King County Parks/former BNSF rail line parcel boundary.” GPS accuracy (phone app, ±3-5m) and GIS boundary accuracy (King County Parcel Viewer: “Lot lines are approximate. Not for legal use.”) preclude reliable boundary determination at this scale.
Skanska Assertion (LTR 357-1)
Section 2.8.5.8 defines work scope (responsibility to handle contamination) and CO 040’s GSP 2-02.5 separately establishes Force Account as the payment mechanism. These are complementary, not conflicting.
WSDOT Position
In a lump sum design-build contract, scope defines payment. GP 1-04.1(1) states the Contract Price “covers and includes the cost of all Work.” If work is within scope per Section 2.8.5.8, it is within the lump sum Contract Price. The Contract Price IS the payment mechanism. GP 1-09.6 confirms: original scope items cannot be paid as Force Account. The distinction Skanska draws between scope and payment does not exist in this Contract’s structure.
3. Risk
Strengths
- Section 2.8.5.8 is unambiguous: “The Work shall include…handling, and disposal” of known/suspected contamination.
- Order of Precedence analysis is airtight: Section 2.8.2 lists GSPs as Mandatory Standards within the TR; GP 1-03.2(2) “notwithstanding” clause confirms TR controls regardless of CO 040.
- Skanska’s own letters prove knowledge: LTR 256 cites Appendices E09a2 and E09a5 as basis for action; LTR 308 argues against DSC by citing the same disclosures.
- Contract structure confirms deliberate two-track framework — sections 2.8.5.8.1/.2 provide DSC treatment for undisclosed items; no DSC pathway for disclosed items.
- GP 1-04.7 $1.5M threshold: even if a DSC existed, the $196,848.74 claim falls entirely below the threshold for adjustment.
Potential Weaknesses
- WSDOT’s initial DSC determination (SL 9727-224) and Force Account tracking direction (SL 9727-189) create an estoppel/reliance argument that Skanska raised and WSDOT countered by characterizing SL-189 as procedural tracking only.
- Industry practice favors Force Account for hazmat work — DRB panels with construction backgrounds may apply equitable reasoning. Mitigated by strength of contract language.
- E09a5’s explicit commitment to “develop GSPs and SPs” is a documented WSDOT promise Skanska can point to, even if Section 2.8.5.8 satisfies it.
Defense Layering
| Layer | Defense | Use In |
|---|---|---|
| Primary | Section 2.8.2 + GP 1-03.2(2) “notwithstanding” clause — GSPs are Mandatory Standards listed within TR; TR controls over all such Mandatory Standards. Section 2.8.5.8 controls over GSP 2-02.5 regardless of CO 040. | Determination Letter — Lead |
| Secondary | GP 1-03.3 — Standard Specifications integrated “excluding measurement and payment Sections”; GSP 2-02.5 (Payment) is excluded from integration. | Determination Letter — Secondary |
| Tertiary | GSP self-referral — GSP 2-02.5 routes to GP 1-09.6; GP 1-09.6 excludes original scope items; GSP defeats itself on its own terms. | Reserve for DRB (caution: concedes GSP applicability) |
| Structural | Two-track payment framework: Sections 2.8.5.8 vs. 2.8.5.8.1/.2 confirm deliberate allocation of risk; lump sum for disclosed; DSC pathway for undisclosed. | DRB Position Paper |
| Reserve | Design choice factor — E09a5 downgraded Site ID 6 to Low risk for staging only; Skanska elected to excavate, triggering contamination encounter. Skanska’s admissions against interest (LTR 256, LTR 308). | DRB Rebuttal |
Fallback Position
If DRB partially favors Skanska on the scope/payment distinction, a partial denial position is available: approve disposal-only costs (~$138K) as Force Account per the GSP’s internal distinction between excavation (bid scope) and off-site disposal; deny excavation and markup costs (~$59K). This position was identified in the internal analysis but not offered in correspondence.
4. Chronology
| Date | Event |
|---|---|
| 2020-02-01 | E09a2 HazMat Addendum — Site ID 6 (BNSF ROW) identified with TPH, Creosote, Metals contamination risk |
| 2021-07-01 | E09a5 HazMat Updates — Risk downgraded Moderate→Low; sampling required if excavating; construction activities limited to staging |
| 2025-03-27 | CO 040 executed — Version correction: replaced Appendix B03 (2023 Std Specs) with 2022 version; no cost, no time impact |
| 2025-09-24 | Skanska samples soil at BNSF ROW (Atlas Report) — 6 test pits within parcel 0926059170 |
| 2025-10-10 | Lab results received — Arsenic 23.6 mg/kg (exceeds MTCA 20 limit), Class 2/3 soil, TPH, lube oil |
| 2025-10-17 | Skanska LTR 256 — Formal contamination notice; reserves rights; cites Appendices E09a2 and E09a5 |
| 2025-11-04 | Removal operations begin — 910.9 tons removed Nov 4–11, 2025 (28 loads) |
| 2025-10-31 | WSDOT SL 9727-189 — Directs Force Account tracking; evaluating DSC status |
| 2025-12-19 | WSDOT SL 9727-224 — Issues DSC determination (later withdrawn) |
| 2025-12-30 | Skanska LTR 308 — Correctly argues not a DSC; accepts Force Account payment |
| 2026-01-07 | Skanska LTR 312 — Submits $196,848.74 T&M claim (Force Account) |
| 2026-01-23 | WSDOT SL 9727-248 — Withdraws DSC determination; denies FA claim; cites Section 2.8.5.8 |
| 2026-02-06 | Skanska LTR 344 — Formal protest of SL-248 under GP 1-04.5; raises CO 040 precedence, E09a5 omission, GP 1-09.6, material difference, payment request |
| 2026-02-20 | WSDOT SL 9727-271 — Written Determination; protest denied |
| 2026-02-20 | Skanska LTR 357 — Supplemental; raises scope vs. payment argument; preserves DSC route; offers mapping overlay |
| 2026-02-27 | WSDOT SL 9727-282 — Final denial; LTR 357 arguments addressed; parcel 0926059170 reaffirmed |
| 2026-03-13 | Skanska LTR 376 — Fresh DSC notice under GP 1-04.7; argues contamination partially outside parcel boundary per GPS overlay |
5. Cost & Time
Skanska’s Claim (LTR 312)
| Line Item | Amount | Disposition |
|---|---|---|
| SKA Labor | $17,771.14 | Denied |
| SKA Equipment | $6,337.03 | Denied |
| SKA Materials/Services | $23,216.68 | Denied |
| SKA Markup | $11,715.33 | Denied |
| Subcontractor (Grady) — 910.9 tons @ $113/ton | $124,547.36 | Denied |
| SKA Sub Markup | $13,261.20 | Denied |
| Total Cost Claimed | $196,848.74 | Full Denial |
| Schedule Extension | Not claimed | |
WSDOT Exposure Scenarios
| Scenario | Cost | Time |
|---|---|---|
| WSDOT position (full denial — as issued) | $0 | None |
| DRB partial (disposal-only fallback) | ~$138K | None |
| DSC 007 track (LTR 376) — worst case | $196,848.74 (same claim) | Nominal |
| Note: Even if a DSC existed under GP 1-04.7, the $196,848.74 claim falls below the $1,500,000 threshold for adjustment. | ||