Date: 2026-02-10
Subject: Protest 005 — Juanita Creek Design Criteria (Stream Simulation) — Internal Analysis and DRB Preparation
Responding to: LTR 241 (Sep 29, 2025) and LTR 249 (Oct 10, 2025)
WSDOT’s evaluation addresses three questions:
| Section | Title | Key Language |
|---|---|---|
| Section 2.30.5.2 | Injunction-Compliant Fish Passable Structures | “The injunction-compliant fish-passable structure(s) and channel design(s) shall comply with the stream simulation methodology as described in the Mandatory Standards and this Section.” |
| Table 2.30-B (I-405 MP 21.94) | Structure and Channel Design Characteristics | Juanita Creek: Morphology = Riffle-Pool; Bed material = 20% (max.) coarser than existing |
| GP 1-03.1 | Contract Documents | “Unless provided otherwise in the Contract, Reference Documents are for information purposes only and the Design-Builder shall rely upon Reference Documents at its own risk.” |
| GP 1-03.7 | Approvals and Acceptances | “The oversight, spot checks, audits, reviews, tests, and inspections conducted by WSDOT do not constitute approval nor acceptance of the materials or Work inspected or reviewed or waiver of any Warranty or legal or equitable right…” |
| GP 1-03.5 | Ambiguities | “The Design-Builder acknowledges and agrees that it had the opportunity and obligation, prior to submission of its Proposal, to review the terms and conditions of the Contract Documents and to bring to the attention of WSDOT any conflicts or ambiguities contained therein.” |
| GP 1-04.4(5)(b) | Matters Not Eligible for Change Orders | “Any design changes required by WSDOT as part of the process of reviewing the Design Documents for consistency with the requirements of the Contract Documents” — not eligible for Change Order |
| GP 1-04.4(3) | Basic Configuration Changes | Entitlement exists only for “Necessary Basic Configuration Change” not attributable to “errors, omissions, inconsistencies or other defects in the Conceptual Plans” |
The contract is unambiguous. Section 2.30.5.2 uses mandatory language (“shall comply”) for stream simulation methodology. This requirement exists independently of any Reference Document, meeting discussion, or regulatory feedback. WSDOT’s SL 155 does not create a new obligation — it reminds the Design-Builder of an existing one.
AECOM’s core error is treating the PHD (Appendix H3) as if it were a Contract Document. GP 1-03.1 explicitly provides that Reference Documents “are for information purposes only.” If AECOM relied on the PHD’s step-pool approach instead of the contract’s stream simulation requirement, that reliance was at AECOM’s own risk.
Furthermore, GP 1-03.5 establishes that the Design-Builder had “the opportunity and obligation, prior to submission of its Proposal, to review the terms and conditions of the Contract Documents and to bring to the attention of WSDOT any conflicts or ambiguities.” If AECOM believed the PHD conflicted with Section 2.30.5.2, the time to raise that was before bidding — not 18 months into design development.
| # | Argument | DB’s Position | Why It Fails |
|---|---|---|---|
| 1 | “Contradictory direction” | SL 155 requires stream simulation AND PHD incorporation, but WDFW says PHD doesn’t follow stream simulation | PHD is a Reference Document (GP 1-03.1). There is no “contradiction” because the PHD is not a contract requirement. Section 2.30.5.2 controls. |
| 2 | “Slope ratio impossible” | 1.25 slope ratio requires 2.4–2.6% reference reaches that don’t exist (upstream gradients 3%/3.3%) | Design challenge, not contract impossibility (GP 1-04.4(5)(b)). The contract requires stream simulation; achieving it within site constraints is the Design-Builder’s scope. AECOM has not demonstrated impossibility — only difficulty. |
| 3 | “18 months of guidance reversed” | WSDOT participated in step-pool design discussions for 18+ months through Task Force meetings, then reversed with SL 155 | Design review and meeting participation do not constitute approval (GP 1-03.7). Meeting minutes were not timely provided per RFP 2.1.2.2.1 (noted in SL 179). Absence of objection is not concurrence. |
| 4 | “WDFW says PHD non-compliant” | WDFW confirmed PHD doesn’t follow stream simulation, proving requirements are contradictory | WDFW’s clarification supports WSDOT, not the protest. WDFW confirmed the design is non-compliant with stream simulation — this is precisely why SL 155 directs compliance. The WDFW feedback validates WSDOT’s position. |
| 5 | “Basic configuration defect” | ROW constraints at Parcel 3288300840 make stream simulation impossible, requiring Basic Configuration relief under GP 1-04.4(3) | Must demonstrate impossibility, not difficulty. GP 1-04.4(3) requires a “Necessary Basic Configuration Change.” AECOM has not submitted a DBIC with cost/schedule analysis demonstrating that stream simulation cannot be achieved — only that it is challenging. |
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.” Both LTR 241 and LTR 249 state costs are “TBD” pending design resolution. This is a procedural deficiency.
Why it matters: Without a cost estimate, WSDOT cannot evaluate the financial dimension of the protest. The Design-Builder has not established the magnitude of its claim, which undermines any argument that equitable relief is warranted.
GP 1-04.5(2)(d) requires “an analysis of the progress schedule showing the schedule change or disruption if the Design-Builder is asserting a schedule change or disruption.” No schedule analysis was provided.
Why it matters: Without schedule analysis, the schedule impact is speculative. The Design-Builder cannot establish entitlement to a time extension without demonstrating critical path impact.
SL 179 (Oct 13, 2025) notes that meeting minutes from the September 23, 2025 WSDOT-Skanska-AECOM meeting had not been provided as of October 10 — 17 calendar days after the meeting. RFP Chapter 2, Technical Requirements 2.1.2.2.1 requires “Design-Builder shall record minutes of each meeting and distribute copies to all attendees within 5 Calendar Days of the meeting for Review and Comment.”
Why it matters: AECOM relies heavily on meeting discussions as evidence of WSDOT “concurrence.” The Design-Builder controlled the meeting minutes process and failed to comply with the contractual requirement to document those discussions. Absence of documented concurrence undermines the “18 months of guidance” narrative.
AECOM argues stream simulation is “not feasible” but provides no engineering analysis demonstrating impossibility. The LTR 249 supplement provides a timeline and narrative but does not include calculations showing that no compliant design exists within the ROW.
Why it matters: There is a critical distinction between “difficult” and “impossible.” GP 1-04.4(3) (Basic Configuration) requires genuine impossibility. Without an engineering demonstration of impossibility, the claim fails under both GP 1-04.4(3) and GP 1-04.4(5)(b).
| Requirement | Section | Status |
|---|---|---|
| Estimated dollar cost with detailed breakdown | GP 1-04.5(2)(c) | Missing — “TBD” |
| Schedule analysis showing change or disruption | GP 1-04.5(2)(d) | Missing — not provided |
| Meeting minutes within 5 calendar days | RFP 2.1.2.2.1 | Missing — noted in SL 179 |
| Engineering demonstration of impossibility | GP 1-04.4(3) | Missing — difficulty only, not impossibility |
AECOM asserts SL 155 constitutes a change because it requires a different design approach than the PHD-based step-pool design developed over 18 months. However, SL 155 does not issue new requirements — it directs compliance with existing Section 2.30.5.2.
Under GP 1-04.4(5)(b), “design changes required by WSDOT as part of the process of reviewing the Design Documents for consistency with the requirements of the Contract Documents” are not eligible for change orders.
Finding: Does not constitute a change. SL 155 enforces existing contract requirements. GP 1-04.4(5)(b) applies.
No cost estimate provided per GP 1-04.5(2)(c). The claim is procedurally deficient. Even if costs were provided, no entitlement exists because SL 155 does not constitute a change.
Finding: Not entitled to cost adjustment.
No schedule analysis provided per GP 1-04.5(2)(d). Even if provided, no entitlement exists because no change was issued.
Finding: Not entitled to time extension.
| Request | Disposition | Rationale |
|---|---|---|
| Cost recovery for redesign to stream simulation | DENIED | SL 155 enforces existing Section 2.30.5.2; GP 1-04.4(5)(b) — design changes for contract consistency not eligible |
| Schedule relief for redesign | DENIED | No change issued; no schedule analysis provided (GP 1-04.5(2)(d)) |
| Recognition of contradictory requirements | DENIED | 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 — but impossibility not demonstrated |
| # | Anticipated DB Argument | WSDOT Counter | Authority |
|---|---|---|---|
| 1 | “WSDOT reversed 18 months of direction” | Design discussions ≠ direction. GP 1-03.7: oversight does not constitute approval. SL 155 enforces the original contract requirement — not a reversal. | GP 1-03.7 |
| 2 | “PHD was contractually binding” | PHD is a Reference Document per GP 1-03.1. Reference Documents are “for information purposes only.” | GP 1-03.1 |
| 3 | “WDFW confirms contradiction” | WDFW confirmed PHD is non-compliant — this supports WSDOT, not the protest. | Section 2.30.5.2; WDFW Jul 28 |
| 4 | “Alex Strom recommended step-pool” | Meeting discussion ≠ Written Determination. No documented concurrence. Meeting minutes not provided per RFP 2.1.2.2.1. | GP 1-03.7; RFP 2.1.2.2.1 |
| 5 | “Stream simulation is technically impossible” | Not demonstrated. AECOM showed difficulty, not impossibility. If impossible, DBIC or Basic Config is the proper mechanism. | GP 1-04.4(2)/(3)/(5)(b) |
| 6 | “WSDOT should have objected to step-pool earlier” | DB had pre-bid obligation to identify conflicts (GP 1-03.5). WSDOT’s failure to object is not approval (GP 1-03.7). | GP 1-03.5; GP 1-03.7 |
| 7 | “Muckleshoot Tribe endorsed step-pool” | Tribal stakeholder preference is not a contract requirement. Section 2.30.5.2 controls. | Section 2.30.5.2 |
| 8 | “ROW at Parcel 3288300840 makes compliance impossible” | Reserved for engineering evaluation. If genuinely impossible, GP 1-04.4(3) may apply — but impossibility must be demonstrated. | GP 1-04.4(3) |
| 9 | “Cost/schedule TBD is reasonable at this stage” | GP 1-04.5(2)(c)–(d) require cost estimate and schedule analysis with the supplemental. “TBD” does not satisfy the procedural requirement. | GP 1-04.5(2)(c)–(d) |
| 10 | “P005 and LTR337 show pattern of WSDOT expanding requirements” | Different contract provisions (Section 2.30.5.2 vs. Table 2.30-B/BDM 8.1.10), different triggers, different procedural postures. These are distinct issues. | P005/LTR337 Scope Map |
WSDOT must actively prevent Skanska from conflating Protest 005 (Stream Simulation) with Issue SKA-0303 (Lateral Migration) during any DRB process. While both involve the Juanita Creek fish passage, they are governed by entirely separate Contract provisions and address different design elements.