P018 Response Matrix
Issue: Protest 018 — Juanita Creek West Wetland Discovery — SKA-0196
Incoming Letter: Skanska LTR 343 (February 6, 2026) — Request for Reconsideration, PCO 112 ($14,311)
Prior Determination: SL 9727-247 (January 23, 2026) — Denial of $14,311 claim
Response Due: TBD — assess whether SL 247 creates new protest window
Key Finding: The $14,311 claim is the cost of performing the Design-Builder’s verification obligation under Section 2.8.5.4. The Atlas invoices are coded to Phase 000008: “Sensitive Area Verification Letter.” WSDOT’s denial rests on four independent legs, any one of which is sufficient.
Four Independent Defense Legs
| # | Leg | Basis |
|---|
| 1 | Verification Obligation | Section 2.8.5.4: DB was required to independently verify all Sensitive Areas and submit a verification letter. The $14,311 is the cost of preparing BY-CRE-02512 and associated JARPA updates. That IS the verification obligation itself, not an additional service. |
| 2 | Conceptual Plans Clause | Section 2.8.5.4.5, Para 1 creates two independent triggers joined by “or”: (a) DB-proposed changes that impact Sensitive Areas, OR (b) previously unidentified Sensitive Areas impacted by the Conceptual Plans. The Juanita Creek wetland satisfies trigger (b) independently. |
| 3 | Discoverable Surface Conditions | GP 1-02.4(1): “The Design-Builder is solely responsible for all Site conditions discoverable from a reasonable Site examination.” The wetland was discovered by observing skunk cabbage — a surface-visible indicator species. Identified in drier-than-normal conditions. |
| 4 | All-Inclusive Contract Price | GP 1-04.1(1): Contract Price includes (b) performance of each and every portion of the Work, (c) cost of obtaining all Governmental Approvals required by DB, (d) all costs of compliance with Governmental Approvals, (f) compensation for all risks assigned to DB. |
Section I: Background Assertions (LTR 343, pp. 1–2)
| ID | Incoming Assertion | WSDOT Response | Authority | Disposition |
|---|
| LTR343-1 |
On 4/2/2025, Skanska’s environmental subconsultant discovered a previously unidentified wetland during routine fieldwork at Juanita Creek West. |
Factual — acknowledged. The discovery was made by observing skunk cabbage, a surface-condition indicator. The DB’s independent verification obligation (Section 2.8.5.4) and site examination responsibility (GP 1-02.4) anticipated exactly this type of surface-condition discovery. |
Section 2.8.5.4; GP 1-02.4(1) |
Noted |
| LTR343-2 |
Skanska notified WSDOT per Section 2.8.5.4.5 (LTR 175). WSDOT acknowledged and agreed to coordinate permit modifications. |
Factual — acknowledged. SL 107 acknowledged the notification as “consistent with the requirements of RFP Section 2.8.5.4.5” and agreed to coordinate permit modifications. SL 107 also denied cost/time on schedule grounds. |
Section 2.8.5.4.5; SL 9727-107 |
Noted |
| LTR343-3 |
Skanska incurred $14,311 in administrative costs (SAVL addendum, JARPA updates, wetland figures) through Atlas environmental consulting. |
The $14,311 represents the cost of performing the SAVL addendum and associated JARPA updates — work required by the DB’s verification obligation under Section 2.8.5.4. These are contractual obligations, not additional or compensable services. Atlas invoices coded to Phase 000008: “Sensitive Area Verification Letter.” |
Section 2.8.5.4; GP 1-04.1(1)(b)(d) |
Deny |
Section II: Section 2.8.5.4.5 Interpretation — “Subordinate Clause” Argument (LTR 343, pp. 2–3)
Key Argument to Rebut: Skanska argues the Conceptual Plans clause in Section 2.8.5.4.5 is “subordinate” to the “proposes changes” threshold — meaning the entire paragraph only applies when the DB proposes changes. WSDOT must directly rebut this by showing the provision creates two independent triggers joined by “or.”
| ID | Incoming Assertion | WSDOT Response | Authority | Disposition |
|---|
| LTR343-4 |
Section 2.8.5.4.5, Para 1: The sentence beginning “In the event the Design-Builder proposes changes” establishes a threshold condition — the entire paragraph applies only when the DB “proposes changes.” |
WSDOT does not agree. Paragraph 1 creates two independent triggers joined by “or”: (a) impacts from DB-proposed changes on known or previously unidentified Sensitive Areas, and (b) previously unidentified Sensitive Areas impacted by the Conceptual Plans themselves. The clause “or the Conceptual Plans will impact previously unidentified Sensitive Areas” is a standalone trigger. Reading it as subordinate would render it surplusage: if the trigger required DB-proposed changes, there would be no need to separately address Conceptual Plans impacts on unidentified Sensitive Areas. |
Section 2.8.5.4.5, Para 1 (full text) |
Deny |
| LTR343-5 |
The emphasized sentence in SL 247 — “or the Conceptual Plans will impact previously unidentified Sensitive Areas” — is a subordinate clause that only activates when the DB has proposed changes. |
The sentence is joined to the preceding clause by “or,” which creates an alternative condition — not a qualification. The provision requires the DB to provide WSDOT with information for permit modifications whenever EITHER condition is met: DB-proposed changes that impact Sensitive Areas OR Conceptual Plans that impact previously unidentified Sensitive Areas. The Juanita Creek wetland satisfies the second condition independently. |
Section 2.8.5.4.5, Para 1; principles of contract interpretation (surplusage canon) |
Deny |
| LTR343-6 |
Section 2.8.5.4.5, Para 2: Cost allocation only applies when DB works “outside the Impact Area Line” or “outside of permitted impacts” due to an ATC or design change — none of which occurred here. |
Paragraph 2 addresses a different scenario — DB working outside the IAL — and is not the sole cost allocation mechanism. Even if Para 2 does not apply (wetland was within the IAL per SL 247), the DB’s cost responsibility arises independently from: (1) Section 2.8.5.4 (SAVL costs = verification obligation itself), (2) GP 1-02.4(1) (discoverable surface conditions), and (3) GP 1-04.1(1) (Contract Price inclusive). Paragraph 2 is also a potential basis since the JARPA update includes design-driven scope expansions. |
Section 2.8.5.4.5 (Para 2); Section 2.8.5.4; GP 1-02.4(1); GP 1-04.1(1) |
Deny |
Section III: Section 2.8.5.2.2 Gap Argument (LTR 343, p. 3)
| ID | Incoming Assertion | WSDOT Response | Authority | Disposition |
|---|
| LTR343-7 |
Section 2.8.5.2.2 “is specifically applicable to circumstances involving ATCs or design changes” — not to discoveries from routine fieldwork. WSDOT acknowledged this in SL 247. |
WSDOT acknowledges that Section 2.8.5.2.2’s triggering condition references ATC, alternative construction method, or design change. However, the inapplicability of one provision does not establish entitlement under others. Other provisions independently allocate costs to the DB: Section 2.8.5.4 (verification obligation), Section 2.8.5.4.5 (Conceptual Plans impacts), GP 1-02.4(1) (discoverable surface conditions), and GP 1-04.1(1) (Contract Price inclusive of all risks). Do NOT repeat the SL 247 concession language. |
Section 2.8.5.2.2; Section 2.8.5.4; Section 2.8.5.4.5; GP 1-02.4(1); GP 1-04.1(1) |
Clarify |
| LTR343-8 |
The inapplicability of Section 2.8.5.2.2 means the remaining cost allocation provisions do not cover this scenario — creating a gap that should be resolved in favor of the DB. |
There is no gap. The contract provides a comprehensive allocation framework: (1) Section 2.8.5.4 required the DB to conduct independent verification and submit verification letters — the SAVL process; (2) Section 2.8.5.4.5 addresses Conceptual Plans impacts on previously unidentified Sensitive Areas; (3) GP 1-02.4(1) assigns discoverable surface conditions to the DB; (4) GP 1-04.1(1) confirms the Contract Price is all-inclusive. Each of these independently allocates the administrative costs to the DB. |
Section 2.8.5.4; Section 2.8.5.4.5; GP 1-02.4(1); GP 1-04.1(1) |
Deny |
Section IV: Baseline Environmental Documentation (LTR 343, p. 3)
| ID | Incoming Assertion | WSDOT Response | Authority | Disposition |
|---|
| LTR343-9 |
WSDOT’s pre-bid environmental documentation (WSAR, JARPA figures) did not identify a wetland at this location. “Actual site conditions differ from those represented in WSDOT’s baseline documentation.” |
The WSAR (E10b) is a Reference Document under GP 1-02.4 — it does not guarantee the completeness of wetland identification. Section 2.8.5.4 exists precisely because WSDOT expected the pre-bid documentation might be incomplete and required the DB to independently verify all Sensitive Areas. The DB performed this verification: the original SAVL (BY-CRE-00366, March 2024) assessed 32 wetlands and 9 streams and confirmed all consistent with the WSAR. The April 2025 discovery triggered the SAVL addendum (BY-CRE-02512) — exactly the process the contract established. |
GP 1-02.4(1); Section 2.8.5.4; E10b (Reference Document) |
Deny |
| LTR343-10 |
The newly discovered wetland was found “through no action or change proposed by the Design-Builder” — the resulting administrative costs should be compensable. |
The wetland was discoverable through reasonable site examination (skunk cabbage visible on surface, lady fern, solanum). GP 1-02.4(1) states: “The Design-Builder is solely responsible for all Site conditions discoverable from a reasonable Site examination.” The DB’s independent verification obligation (Section 2.8.5.4) anticipated surface-condition discoveries. The contract allocates these costs to the DB regardless of whether the DB proposed changes. |
GP 1-02.4(1); Section 2.8.5.4; GP 1-04.1(1)(f) |
Deny |
Section V: Request for Reconsideration (LTR 343, p. 3)
| ID | Incoming Assertion | WSDOT Response | Authority | Disposition |
|---|
| LTR343-11 |
Requests WSDOT reconsider the denial of $14,311 and “acknowledge that the wetland was not identified in the project baseline environmental documentation.” |
WSDOT acknowledges the wetland was not identified in the pre-bid WSAR (E10b). This does not establish entitlement. The WSAR is a Reference Document, not a guarantee. The DB’s contractual obligation was to independently verify all Sensitive Areas (Section 2.8.5.4) and bear the costs of doing so (GP 1-04.1(1)). The $14,311 represents the cost of that verification. WSDOT’s position in SL 9727-247 is affirmed. |
GP 1-02.4(1); Section 2.8.5.4; Section 2.8.5.4.5; GP 1-04.1(1) |
Deny |
| LTR343-12 |
Skanska “reserves the right to pursue formal protest and Disputes Review Board proceedings if reconsideration is denied.” |
Noted. WSDOT acknowledges Skanska’s reservation of rights under GP 1-04.5. |
GP 1-04.5 |
Noted |
Disposition Summary
| Disposition | Count | IDs |
|---|
| Deny | 8 | LTR343-3, -4, -5, -6, -8, -9, -10, -11 |
| Noted | 3 | LTR343-1, -2, -12 |
| Clarify | 1 | LTR343-7 |
SAVL Evidence Integration
| Document | Date | What It Shows | WSDOT Use |
|---|
BY-CRE-00366
SAVL Remaining Areas | Mar 11, 2024 | DB performed Section 2.8.5.4 verification obligation. 32 wetlands, 9 streams assessed. “No changes are proposed.” All consistent with WSAR. | Proves the verification obligation was performed. Nothing found at Juanita Creek left bank at that time. |
BY-CRE-02512 Rev 01
SAVL Addendum | Jun 19, 2025 | Documents Lower Juanita Wetland (Category II, riverine/slope, 14,176 sq ft, 110-ft buffer) and UNT to Sammamish. Coded to Phase 000008: “Sensitive Area Verification Letter.” | This IS the verification letter the contract required. The $14,311 = cost of performing this contractual duty. The billing code confirms it. |
| Schuetze overlap | 2023–2025 | Abi Schuetze worked on BOTH: the original SAVL (OSG, 2023–2024) and the SAVL Addendum (Atlas, April 2025). Same wetland scientist; same area; different findings. | Reserve for DRB cross-examination. Do not put in letter — could be used by Skanska to argue the wetland was not discoverable during the original survey. |
Do-Not-Concede Items
- Do NOT repeat SL 247’s concession that Section 2.8.5.2.2 “involves neither an ATC nor an alternative construction method and cannot be attributed to a design change.” Acknowledge inapplicability only to show there is no “gap.”
- Do NOT repeat SL 247’s acknowledgment that “the newly discovered wetland was within the Project’s grading path” as a concession.
- Lead with Section 2.8.5.4 (verification obligation) — the argument Skanska has not addressed. It does not depend on the Section 2.8.5.4.5 Conceptual Plans clause interpretation.
Response Matrix — SKA-0196 Juanita Creek Wetland — Created 2/18/2026