1. Executive Summary
Decision Requested
Resolved. WSDOT issued its determination denying the protest in SL 9727-205 (November 25, 2025). The 14-day deadline for Skanska to file a dispute notification (per GP 1-04.5(1)) passed approximately December 9, 2025 without a filing. No further action is required.
- Recommendation: Closed (protest denied; dispute deadline passed without filing)
- Cost Exposure: Not quantified (no cost estimate provided by Skanska in protest); WSDOT position is $0 — no change was issued
- Risk Level: Low — determination issued; dispute window appears closed; one critical open item remains (Appendix H3 classification)
Core Question
Does WSDOT’s SL 155 direction to comply with stream simulation methodology (Section 2.30.5.2) constitute a compensable change, or is it enforcement of an existing contract requirement?
This protest arose from a fundamental tension between the contract’s mandatory stream simulation methodology (Section 2.30.5.2) and the Draft Preliminary Hydraulic Design (PHD, Appendix H3), which contained a step-pool conceptual design for the upstream reach of Juanita Creek. The PHD step-pool approach was carried forward through 18+ months of biweekly Fish Passage Task Force meetings before WSDOT issued SL 155 (September 12, 2025) directing stream simulation compliance.
Skanska/AECOM filed a Notice of Protest (LTR 241, September 29, 2025) arguing that SL 155 constitutes contradictory direction because WSDOT had implicitly concurred with the step-pool approach for 18 months and because WDFW confirmed the PHD does not follow stream simulation. WSDOT’s determination in SL 205 (November 25, 2025) denied all claims: the PHD is a Reference Document (GP 1-03.1), not a Contract Document; design discussions do not constitute approval (GP 1-03.7); and WDFW’s clarification supports WSDOT’s position, not the protest.
The protest submittal was also procedurally deficient: no cost estimate (GP 1-04.5(2)(c)) and no schedule analysis (GP 1-04.5(2)(d)) were provided. The dispute notification deadline (~December 9, 2025) appears to have passed without a filing. A critical open item remains: verification that Appendix H3 is listed as a Reference Document (not a Contract Document) in Appendix A1 — if it is classified as a Contract Document, the protest arguments gain significant force.
2. Skanska Assertions and WSDOT Position
Full matrix available in Response Matrix viewer (8 assertions). Key assertions summarized below.
Skanska Assertion (LTR241-1)
SL 155 is contradictory because it requires stream simulation methodology AND incorporation of the PHD (Appendix H3), but WDFW has confirmed the PHD does not follow stream simulation. Skanska/AECOM argue they cannot comply with both requirements simultaneously.
WSDOT Position
The PHD (Appendix H3) is a Reference Document per GP 1-03.1 — “Reference Documents are for information purposes only and the Design-Builder shall rely upon Reference Documents at its own risk.” There is no contradiction: Section 2.30.5.2 controls and the PHD is not a contractual requirement. SL 155 does not require the Design-Builder to incorporate the PHD step-pool design; it directs compliance with the contractually required stream simulation methodology.
Skanska Assertion (LTR249-5 & LTR249-6)
WSDOT participated in step-pool design discussions through biweekly Fish Passage Task Force meetings from November 2023 through February 2025 and did not object to the step-pool approach. Alex Strom (AECOM) recommended step-pool at the June 4, 2024 Task Force meeting without WSDOT objection. This constitutes concurrence that was then reversed by SL 155.
WSDOT Position
Design discussions, oversight, and review activities do not constitute approval or formal concurrence. GP 1-03.7 explicitly provides that “oversight, spot checks, audits, reviews, tests, and inspections conducted by WSDOT do not constitute approval nor acceptance.” A meeting discussion does not constitute a Written Determination. Furthermore, meeting minutes from the September 23, 2025 meeting were not provided as required by RFP 2.1.2.2.1 (within 5 calendar days) — the Design-Builder controlled the documentation process and failed to comply.
Skanska Assertion (LTR241-2, LTR241-3, LTR241-4)
AECOM asserts that stream simulation is technically impossible at this site due to: (1) the 1.25 slope ratio requirement necessitates 2.4–2.6% reference reaches that do not exist (upstream gradients are 3%/3.3%); (2) the 20% max coarser bed material requirement (Table 2.30-B) cannot be met; and (3) ROW at Parcel 3288300840 forces higher slopes, making compliance impossible.
WSDOT Position
AECOM has demonstrated design difficulty, not technical impossibility. GP 1-04.4(5)(b) expressly excludes from change order eligibility “design changes required by WSDOT as part of the process of reviewing the Design Documents for consistency with the requirements of the Contract Documents.” The ROW claim is reserved: if genuinely impossible (not merely difficult), the proper mechanism is a DBIC per GP 1-04.4(2) or a Basic Configuration claim per GP 1-04.4(3) — not a protest. Neither mechanism has been properly invoked with required engineering demonstration and cost/schedule analysis.
Skanska Assertion (LTR249-7)
WDFW confirmed (July 28 and September 16, 2025) that the PHD does not follow stream simulation methodology. Skanska argues this proves WSDOT’s requirements are internally contradictory — that WSDOT cannot require both PHD compliance and stream simulation.
WSDOT Position
WDFW’s clarification supports WSDOT’s position, not the protest. WDFW confirmed the PHD design is non-compliant with stream simulation — this is precisely why SL 155 directs compliance with Section 2.30.5.2. There is no contradiction: the PHD is a Reference Document (not a contractual requirement), and the contract requires stream simulation. WDFW’s feedback validates the need for SL 155.
Skanska Assertion (LTR249-8)
Cost and schedule impacts are TBD pending design resolution. Skanska reserves rights to equitable compensation for the cost of redesigning to stream simulation methodology.
WSDOT Position
GP 1-04.5(2)(c) requires “the estimated dollar cost, if any, of the protested Work and a detailed breakdown showing how that estimate was determined.” GP 1-04.5(2)(d) requires “an analysis of the progress schedule showing the schedule change or disruption.” Both LTR 241 and LTR 249 state costs and schedule are “TBD” — this is a procedural deficiency that renders the submittal incomplete. Even if costs were quantified, no entitlement exists because SL 155 does not constitute a change (GP 1-04.4(5)(b) applies).
3. Risk
Strengths (Supporting WSDOT’s Determination)
- Section 2.30.5.2 uses mandatory language (“shall comply”) — stream simulation is the unambiguous contract requirement
- GP 1-03.1 explicitly classifies Reference Documents as “for information purposes only” — defeats all PHD-reliance arguments in one provision
- GP 1-03.7 explicitly provides that oversight activities do not constitute approval — defeats the “18 months of concurrence” narrative
- WDFW’s clarification supports WSDOT, not the protest — unusual for a regulatory agency comment to strengthen the owner’s position
- Protest is procedurally deficient (no cost estimate, no schedule analysis) under GP 1-04.5(2)(c)–(d)
- Dispute notification deadline (~Dec 9, 2025) appears to have passed without a filing — protest is likely closed
- GP 1-03.5 places pre-bid obligation on Design-Builder to identify conflicts — Skanska cannot raise this issue 18 months into design development
Potential Weaknesses / Open Items
- CRITICAL OPEN ITEM: Appendix H3 classification in Appendix A1 — if listed as a Contract Document rather than Reference Document, AECOM’s entire argument gains significant force and WSDOT’s GP 1-03.1 defense collapses
- 18 months of task force meeting participation without objection creates a narrative vulnerability even if GP 1-03.7 provides the legal defense
- Slope ratio (1.25) and ROW constraints at Parcel 3288300840 may present genuine engineering challenges — if impossibility is later demonstrated, GP 1-04.4(3) Basic Configuration relief could become available
- Protest timeliness: LTR 241 was filed 17 days after SL 155 (deadline was 14 days per GP 1-04.5(1)) — WSDOT accepted the protest but this is a noted procedural issue
Defense Layering
| Layer | Defense | Use In |
|---|---|---|
| 1. | SL 155 enforces existing Section 2.30.5.2 — not a change; GP 1-04.4(5)(b) applies. PHD is a Reference Document (GP 1-03.1). | Determination (issued SL 205) |
| 2. | Design discussions ≠ approval (GP 1-03.7); DB controlled meeting minutes and failed to document (RFP 2.1.2.2.1) | Determination (issued SL 205) |
| 3. | Procedural deficiency: no cost estimate (GP 1-04.5(2)(c)), no schedule analysis (GP 1-04.5(2)(d)) | Determination (issued SL 205) |
| 4. | If impossibility claimed, proper mechanism is DBIC (GP 1-04.4(2)) or Basic Configuration (GP 1-04.4(3)) — not protest | Reserve if dispute refiled |
Scope Boundary Note
WSDOT must prevent conflation of P005 (stream simulation, Section 2.30.5.2) with SKA-0303 / Issue LTR337 (lateral migration, Table 2.30-B, BDM 8.1.10). Both involve the Juanita Creek fish passage but are governed by entirely separate contract provisions. If Skanska attempts to weave a single “WSDOT kept changing requirements” narrative at any future proceeding, WSDOT must immediately object and clarify that these are distinct issues.
4. Chronology
| Date | Event |
|---|---|
| Pre-bid | Appendix H3 (Draft PHD) issued as Reference Document — conceptual step-pool design for upstream reach of Juanita Creek |
| 2023-11-01 | Biweekly Fish Passage Task Force meetings begin — WSDOT, Skanska, AECOM, WDFW, tribal representatives |
| 2024-06-04 | Alex Strom (AECOM) recommends step-pool for upstream reach at Task Force meeting (riffle slopes up to 9.44%) |
| 2024-07-03 | AECOM submits PHD to Skanska with step-pool design clearly defined |
| 2024-07-30 | PHD comments received — no step-pool objection noted (AECOM cites absence as implicit concurrence) |
| 2025-01-24 | AECOM submits Final Hydraulic Design (FHD) to Skanska — step-pools clearly defined; submitted for RCSR |
| 2025-02-20 | FHD comments received — Muckleshoot Tribe supports step-pool approach |
| 2025-07-28 | WDFW clarifies that draft PHD does not follow stream simulation methodology — first formal recognition of disconnect |
| 2025-09-12 | WSDOT SL 155 — Directs stream simulation compliance; cites Section 2.30.5.2, HPA (Appendix P4), Permanent Injunction |
| 2025-09-16 | Second WDFW clarification on stream simulation — additional WDFW input supporting WSDOT position |
| 2025-09-23 | WSDOT-Skanska-AECOM meeting to discuss path forward — meeting minutes not timely provided by DB (noted in SL 179) |
| 2025-09-29 | Skanska LTR 241 — Notice of Protest (17 days after SL 155; deadline was 14 days) |
| 2025-10-10 | Skanska LTR 249 — Supplemental information; AECOM’s detailed technical arguments |
| 2025-10-13 | WSDOT SL 179 — Acknowledges protest; notes meeting minutes deficiency per RFP 2.1.2.2.1 |
| 2025-11-25 | WSDOT SL 205 — Protest DENIED; design not in contract compliance; no merit for cost/time; directs GP 1-04.5(1) if disagreement |
| ~2025-12-09 | GP 1-04.5(1) dispute notification deadline (14 days after SL 205) — no filing observed as of Feb 6, 2026 |
5. Cost & Time
Claimed Amount
| Component | Amount |
|---|---|
| Cost estimate (LTR 241 and LTR 249) | TBD — Not provided (procedural deficiency) |
| Schedule impact (LTR 241 and LTR 249) | TBD — Not provided (procedural deficiency) |
Relief Requests and Disposition
| Relief Requested | WSDOT Disposition |
|---|---|
| Cost recovery for redesign to stream simulation | Denied (SL 205) — SL 155 enforces existing Section 2.30.5.2; GP 1-04.4(5)(b) applies |
| Schedule relief for redesign | Denied (SL 205) — No change issued; no schedule analysis provided |
| Recognition of contradictory requirements (PHD vs. stream simulation) | Denied (SL 205) — PHD is Reference Document (GP 1-03.1); no contradiction exists |
| ROW impossibility claim (Parcel 3288300840) | Reserved — If genuinely impossible, GP 1-04.4(3) may apply; impossibility not demonstrated |
WSDOT Exposure Scenarios
| Scenario | Cost | Time |
|---|---|---|
| WSDOT position (protest closed — no dispute filed) | $0 | None |
| If dispute refiled (late) and DRB accepts partial claim | Unknown — no estimate provided | Unknown |
| Worst case (Basic Configuration ultimately required) | TBD — depends on ROW/engineering analysis | TBD |