Date: February 5, 2026
Subject: SKA-0219 New Wetland, North Fork Perry Creek (West) — Internal Analysis
Responding to: LTR 338 (1/30/2026) — Response to WSDOT SL 9727-218
Purpose: Documents WSDOT’s detailed analysis for internal use and DRB preparation. Contains reasoning, rebuttals, and strategic analysis not for external sharing.
| Section | Key Language |
|---|---|
| RFP 2.8.5.4.5 (Para 2) | “If the Design-Builder plans to Work outside the Impact Area Line or outside permitted impacts due to an ATC or design change… all costs and schedule delays associated with having to obtain permit modifications, new permits, documentation changes, or additional mitigation shall be the responsibility of the Design-Builder.” |
| RFP 2.8.5.4.5 (Para 1) | “If… previously unidentified Sensitive Areas are present that would be impacted by the Conceptual Plans, the Design-Builder shall provide the WSDOT Engineer with all information necessary to obtain a permit modification.” |
| RFP 2.8.5.4 | “The Design-Builder shall conduct an independent verification prior to the installation of HVF and HVSF to confirm that all Sensitive Areas have been identified.” |
| GP 1-02.4(1) | “The Design-Builder is solely responsible for all Site conditions discoverable from a reasonable Site examination.” |
| GP 1-04.4(5)(l)(p)(q) | Excluded changes: (l) delays obtaining Governmental Approvals; (p) delays from DB design choices; (q) Environmental Commitments List changes from DB design choices. |
| GP 1-04.5 | 14 calendar days to protest a Written Determination. |
Section 2.8.5.4.5 — Two paragraphs, both unfavorable to Skanska.
Paragraph 1 applies when “previously unidentified Sensitive Areas are present that would be impacted by the Conceptual Plans.” Paragraph 2 applies when “the Design-Builder plans to Work outside the Impact Area Line or outside permitted impacts due to an ATC or design change.” The JARPA update (10/17/2025) shows the project limits expanded into additional areas of Wetland 26.55L. The reasons listed include “design changes,” “updated project line work,” “stormwater elements added,” and limits “expanded into additional part of Wetland 26.55L to accommodate stream restoration.” These are design-driven expansions — Paragraph 2’s explicit cost allocation applies.
The OIC argument fails. WSDOT coordinating the Section 404 permit modification is its role as the permittee. Performing this coordination does not constitute directing the DB to change its work. An OIC under GP 1-04.4(1) requires WSDOT to “authorize and require changes.” Nothing in the correspondence chain constitutes such direction. The DB cannot convert its own contractual obligations into owner-directed changes by characterizing WSDOT’s administrative role in the permit process as an OIC.
| # | Skanska Position | Why It Fails |
|---|---|---|
| 1 | “We could not provide cost/time information until the permit modification was complete.” | SL 128 asked for information to substantiate anticipated impacts — not final permit documents. Administrative costs for delineation, JARPA preparation, and survey work were incurred and quantifiable June–October 2025. The JARPA update is dated 10/17/2025. Billing records document the work. Skanska had 5 months between SL 128 (7/22/2025) and SL 218 (12/12/2025) to provide at minimum the administrative cost substantiation. |
| 2 | “Skanska cooperated in a timely manner, therefore WSDOT should compensate.” | Section 2.8.5.4.5 requires the DB to “provide the WSDOT Engineer with all information necessary to obtain a permit modification.” Cooperation is a contractual obligation, not a basis for entitlement. |
| 3 | “The permit modification changed the conditions under which we must work, making this an OIC.” | WSDOT did not direct any change to Skanska’s work. The DB cannot create a condition (failing to identify a wetland), trigger a permit modification, and then characterize the permit modification as an owner-directed change. |
| 4 | “The administrative costs ($50,425) are attributable to the newly discovered wetland.” | The JARPA update covers 10+ wetlands and creeks. Most changes are described as “design changes,” “updated project line work,” “nominal changes due to design refinement,” and “stormwater elements added.” No allocation methodology is provided. |
| 5 | “The wetland boundary reduced our crane staging area, requiring larger cranes ($124,489 delta).” | Causation is asserted but not demonstrated. No geometric analysis showing the wetland boundary was the controlling constraint. Why was 80T infeasible at the alternative location? The oiler requirement ($39,749) only applies because they chose a >100T crane. MOB/DEMOB charges ($46,160) assume the Kobelco was not already mobilized. Even if causation were proven, Section 2.8.5.4.5 allocates these costs to the DB. |
| 6 | “WSDOT should reopen this matter.” | SL 9727-218 is a Written Determination under GP 1-04.5. The 14-calendar-day protest window expired approximately 12/26/2025. LTR 338 is dated 1/30/2026 — 35 days late. The contract provides no mechanism to “reopen” a closed matter outside the protest and disputes framework. |
LTR 338 characterizes this as a “newly discovered wetland.” This is incorrect. The pre-bid WSAR (E10a, SR 522–527, February 2020) lists Wetland 26.55L in Table 3 at 0.20 acres — PFO/PEM, Depressional, Ecology Category III, 75-foot buffer. The wetland was identified and delineated before the contract was awarded.
The progression: 0.20 acres (WSAR, Feb 2020) → 0.428 acres (permitted baseline) → +9,747 SF / 0.224 acres (JARPA expansion) → ~0.65 acres total. What Skanska calls a “newly discovered wetland” is actually an expanded delineation of a known wetland — roughly tripling in size from the pre-bid baseline.
The DB’s independent verification obligation (Section 2.8.5.4) directly covers this scenario: verifying the boundary of the 0.20-acre Wetland 26.55L in an area where the WSAR identified both the wetland and the adjacent creek as sensitive resources.
| Claim | Finding | Rationale |
|---|---|---|
| Administrative costs ($50,425) | DENIED | DB obligation under Section 2.8.5.4.5. Cost attribution deficient — JARPA update covers 10+ wetlands, most changes design-driven. |
| Future design costs (unquantified) | DENIED | Speculative. Permit compliance obligations under Section 2.8.5.4.1. |
| Crane impacts ($124,489) | DENIED | Section 2.8.5.4.5 allocates costs to DB. Causation not demonstrated. |
| OIC request | DENIED | No OIC issued or warranted. WSDOT has not directed a change. |
| Total ($230,919.07) | DENIED | No entitlement on any component. |
| DSC theory (contingency) | Would fail | Wetland is a surface condition. WSAR identified Wetland 26.55L. $1.5M DSC deductible applies. |
RFP Section 2.8.5.3 states: “The portions of the Impact Area Line that cut through Sensitive Areas are elements of the Basic Configuration.” Under this reading, if a newly discovered wetland causes the Impact Area Line to shift, the shift constitutes a Necessary Basic Configuration Change under GP 1-04.4(3), entitling the DB to an increase in the Contract Price.
Option A — Reaffirm Closure Only (Procedural): Note that SL 9727-218 closed this matter, LTR 338 is outside the protest window, and the matter remains closed.
Option B — Substantive Response (Recommended): Respond with a determination letter that (1) notes the procedural posture (untimely, matter closed), and (2) addresses the merits substantively under Section 2.8.5.4.5, the independent verification obligation, and the cost/causation deficiencies. Creates a complete record and stronger DRB posture.
INTERNAL MEMO — SKA-0219 — Prepared 2/5/2026; Section VIII added 2/10/2026