P019 Response Matrix

Issue: Protest 019 — Juanita Creek Lateral Migration IED — SKA-0303 (PCN-00153)
Incoming Letter: Skanska LTR 372 (March 10, 2026) — Notice of Protest 019
Protesting: WSDOT SL 9727-280 (February 24, 2026) — Interpretive Engineering Decision on lateral migration
Response Due: 21 calendar days after supplemental per GP 1-04.5

Key Finding: Design Review, Not Direction. The RCSR comments were design review feedback, not Owner-Initiated direction. Comment 196 is WSDOT telling AECOM that their own technical evidence supports a “NOT low” conclusion. AECOM’s own FHD (Section 7.1, Appendix O) found conditions (erodible soils, beaver activity, insufficient data to exclude lateral migration) supporting that design. The design incorporating lateral migration preceded any WSDOT guidance.

Comment 196 (DJS) — The Critical Comment

“a) Could you make your conclusion clear and complete based on the info you have, 2) Pleased the term ‘NOT low’ is used. Based on what I read, it seems like this should be your summary. ‘Based on the available geologic and geomorphic understanding described in section 2, the risk of lateral migration is NOT low. The existing sediments/soils in the bed and banks are considered erodible. Beavers/beavers dams are present in the watershed. It is possible that the channel could shift or change. We were not able to determine the amount the channel has changed historically.’ if this is not correct, please revise”

“Based on what I read” — DJS summarizes what AECOM’s analysis found.
“It seems like this should be your summary” — a suggestion, not a command.
“If this is not correct, please revise” — express discretion given to AECOM.

LTR 372 Assertion Rows

IDLTR 372 SectionAssertionNew?WSDOT ResponseAuthorityDisposition
LTR372-0Section 1 IED characterization is procedurally improper. SL 9727-280 does not meet Section 1-03.5 requirements because (a) it was not requested by the DB, and (b) WSDOT simultaneously claims “no ambiguity” while issuing an IED, which presupposes ambiguity. NEW Section 1-03.5 expressly permits WSDOT to “issue its own Interpretive Engineering Decision.” No DB request is required. The IED interprets contract design requirements. The substance stands regardless of label. SL 280 is also a Written Determination under GP 1-04.5. This same “unsolicited IED” argument was raised in P010 (SL 9727-209 waterproofing) and rejected. GP 1-03.5; GP 1-04.5; SL 116 (Sammamish IED precedent) Deny
LTR372-1Section 2.1 WAC 162-08-017 establishes “shall” = mandatory command under WA law. RCSR comments using “shall” are therefore directives, not suggestions. NEW Three independent failures: (1) WAC 162-08-017 governs only Chapter 162-08 (Human Rights Commission proceedings), not WSDOT contracts; (2) RCW 1.12 is statutory construction, not contract interpretation; (3) the “shall” instances in Package 9 Comments 3 and 4 quote BDM 8.1.10 verbatim — the BDM commands the designer, not WSDOT commanding the DB. Comment 196 uses no “shall” at all. WAC 162-08-017(1) (wrong scope); BDM 8.1.10; Package 9 Comments 3, 4 Deny
LTR372-2Section 2.2 Comment 196 explicitly stated “NOT low” — this is direction, not review. Evolved Comment 196 says “Based on what I read, it seems like this should be your summary” and “if this is not correct, please revise.” DJS summarized what AECOM’s own analysis found and gave AECOM discretion to disagree. No RCSR comment references Table 2.30-B lateral migration classification. Zero directive language across 225 comments (Packages 8 and 9). Package 8 FHD RCSR; FHD Section 7.1; Appendix O; 225-comment language analysis Deny
LTR372-3Section 2.3 Section 1-02.1 does not insulate WSDOT from “directive” RCSR comments. The shield applies to “comments” but not to “directions.” NEW Section 1-02.1 makes no exception for tone or language of comments. It covers ALL “comments by WSDOT on Design Documents.” The provision does not distinguish “suggestive” from “directive” comments. The only carved-out category is IEDs. Even if a comment were “directive,” the proper remedy is GP 1-04.5 protest within 14 days — which Skanska did not file. GP 1-02.1 (full text); GP 1-04.5 Deny
LTR372-4Section 2.4 “Full discretion” was not available in practice. RCSR gating prevented RFC without addressing lateral migration. DB had no real choice. Evolved Comment 196 gave express discretion (“if this is not correct, please revise”). AECOM’s own analysis agreed with the reviewer. July 28, 2025 comment closure explicitly confirmed “low” and directed DBIC if disagreed — DB never filed a DBIC. AECOM’s design incorporating lateral migration was completed “before we received guidance to ignore lateral migration” (Slide 16). GP 1-04.5; GP 1-04.4(2) (DBIC); July 28, 2025 comment closure Deny
LTR372-5Section 2.5 Timeline and design chain establish cause-and-effect: WSDOT comments caused the lateral migration design. Evolved AECOM’s design incorporating lateral migration preceded any WSDOT guidance (Slides 16–17). Skanska’s own internal email: “Why was lateral migration included here? We fought so hard to not include lateral migration at the Sammamish River but seemed to accept it here.” This shows Skanska considered the decision to be AECOM’s, not WSDOT’s. AECOM Presentation Slides 16–17; AECOM FHD Section 7.1; Appendix O Deny
LTR372-6Section 2.6 WSDOT position is inconsistent with P003 (Sammamish). WSDOT enforced “not low” at Sammamish but denies directing “not low” at Juanita. NEW (explicit) No inconsistency. At Sammamish (P003): the CONTRACT says “not low” (Section 2.30.5.2.1 “shall apply”); DB wanted to reduce below contract; WSDOT enforced the contract. At Juanita (P019): Table 2.30-B says “low”; DB’s own designer found conditions warranting “NOT low” treatment; WSDOT reviewed the design. In both cases, WSDOT enforces the contract as written. The unifying principle: contract requirements are the floor. Section 2.30.5.2.1; Table 2.30-B; GP 1-02.1; P003 Internal Memo Deny
LTR372-7Section 2.7 Scope growth is not limited to footings. Wingwalls, headwalls, beams, micropiles all affected. Evolved WSDOT does not dispute that the DB incurred costs. The question is whether those costs result from WSDOT direction (they do not) or from the DB’s own design analysis and compliance with mandatory standards. Compliance with BDM 8.1.10 is the Design-Builder’s responsibility under Section 2.13.4. Total scour is 0.65–1.16 ft governed by 3 ft minimum — not driven by lateral migration depth. GP 1-04.1; BDM 8.1.10 (Mandatory Standard); Section 2.13.4; FHD Table 7-4 Deny
LTR372-8Section 2.8 Buried riprap protects existing MSE wall and constitutes additional scope beyond the fish passage structure. Evolved The buried riprap countermeasures are addressed in WSDOT’s response to SKA-0297 (Juanita Creek Property Rights). The scour countermeasure obligation derives from RFP Section 2.30.5.6. AECOM’s own design included the countermeasures. RFP Section 2.6 confirms the MSE wall was anticipated to be affected by the fish passage work. Section 2.30.5.6; Section 2.6 (existing MSE wall); SKA-0297 Reserve (SKA-0297)

Relief Requests

IDRequestWSDOT ResponseDisposition
LTR372-R1Reconsider and withdraw SL 9727-280Denied. SL 9727-280 correctly interprets contract requirements. RCSR comments were design review, not direction. IED is properly issued under Section 1-03.5.Deny
LTR372-R2Process OIC for $5,466,392Denied. No OIC warranted. Per GP 1-03.5: “no Interpretive Engineering Decision by WSDOT shall form the basis for an increase in the Contract Price.” DB bears burden of proving WSDOT’s interpretation is incorrect or unreasonable.Deny
LTR372-R3Provide direction on buried riprap countermeasuresReserved. Addressed in WSDOT’s response to SKA-0297.Reserve
LTR372-R414 calendar day extension for supplemental (requested due date: April 7, 2026)Extension requests processed per standard procedure. AECOM also requests 14-day extension in attached protest letter.Noted

Disposition Summary

DispositionCountIDs
Deny10LTR372-0 through LTR372-7, R1, R2
Reserve2LTR372-8, R3
Noted1R4

P003 / P019 Consistency Table

FactorP003 (Sammamish)P019 (Juanita)
Contract designation“Not low” (Section 2.30.5.2.1 “shall apply”)“Low” (Table 2.30-B)
What DB wantedLESS than contract required (reduce to “low”)Did MORE than Table 2.30-B (designed for “NOT low”)
WSDOT’s actionEnforced the contract designation (SL 116 IED)Reviewed the design; pointed out what DB’s own analysis showed
Direction of disputeDB wanted to REDUCE below contractDB EXCEEDED Table 2.30-B based on own analysis
Core defenseContract says “shall apply” — mandatoryRCSR = design review, not direction. BDM 8.1.10 = separate standard.

AECOM Admissions Against Interest

  1. Skanska email: “Why was lateral migration included here? We fought so hard to not include lateral migration at the Sammamish River but seemed to accept it here.” — Shows Skanska considered the decision to be AECOM’s.
  2. AECOM Slide 4: Acknowledged Table 2.30-B “low” and excluded lateral migration from sediment sizing. They knew the contract said “low.”
  3. AECOM Slide 16: “Design completed before we received guidance to ignore lateral migration.” Design preceded guidance.
  4. AECOM Slide 17: Tunnel depth “not affected” by lateral migration. Narrows scope.
  5. LTR 337 filing 66 days after P005 denial. Alternative cost recovery inference.
  6. Skanska framing question (Slide 17): “Would like AECOM to depict in AECOM’s opinion how WSDOT influenced the design.” AECOM’s response was more measured: design “may have been different if received guidance on lateral migration sooner” — not that WSDOT directed it.

P019 Response Matrix — SKA-0303 — Last updated 2026-03-11