Incoming Letters: LTR 241 (Sep 29, 2025); LTR 249 (Oct 10, 2025)
Response Issued: SL 205 (Nov 25, 2025)
Total Assertions: 8 · Deny: 5 · Clarify: 1 · Reserve: 2
| Disposition | Count | Assertions |
|---|---|---|
| Deny | 5 | LTR241-1, LTR241-2, LTR241-3, LTR249-5, LTR249-6 |
| Clarify | 1 | LTR249-7 |
| Reserve | 2 | LTR241-4, LTR249-8 |
SL 155 is contradictory: it requires stream simulation methodology AND incorporation of the PHD, but WDFW confirms the PHD does not follow stream simulation. AECOM argues it cannot comply with both requirements simultaneously.
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 because the PHD is not a contractual requirement. Section 2.30.5.2 is the controlling provision and mandates stream simulation methodology. SL 155 does not require incorporation of the PHD step-pool design — it directs compliance with the actual contract requirement.
The 1.25 slope ratio required for stream simulation is impossible given site gradients of 3%/3.3% for the upstream reach, which would require 2.4–2.6% reference reaches that do not exist at this location.
Design challenges within the Design-Builder’s scope do not constitute contract defects. 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 slope ratio is a design constraint to be solved by the Design-Builder, not grounds for a change order. AECOM has demonstrated difficulty, not impossibility.
The 20% maximum coarser bed material specification (Table 2.30-B, I-405 MP 21.94) cannot be met under a stream simulation design at this site.
Table 2.30-B specifies bed material requirements for Juanita Creek (Riffle-Pool morphology; 20% max. coarser than existing). Compliance with contract specifications is the Design-Builder’s responsibility. Difficulty meeting design parameters does not establish entitlement to a change order. GP 1-04.4(5)(b) applies.
ROW constraints at Parcel 3288300840 force higher channel slopes, making stream simulation compliance impossible at this location. Skanska reserves rights to pursue a Basic Configuration Change.
If stream simulation is genuinely impossible (not merely difficult) due to site constraints, the proper mechanism is a DBIC under GP 1-04.4(2) or a Basic Configuration claim under GP 1-04.4(3). The protest mechanism does not apply to design feasibility. AECOM has not submitted a DBIC with cost/schedule analysis demonstrating that stream simulation cannot be achieved — only that it is challenging. This assertion is reserved pending proper engineering demonstration. (Note: SL 9727-233, January 5, 2026, addressed property rights at this parcel.)
WSDOT resolved ambiguity in favor of the PHD/step-pool design for 18+ months through collaborative Task Force meetings (Nov 2023 – Feb 2025), then reversed course with SL 155. This constitutes guidance on which Skanska/AECOM justifiably relied.
Design discussions, oversight, and review activities do not constitute approval or formal concurrence. GP 1-03.7 provides that “oversight, spot checks, audits, reviews, tests, and inspections conducted by WSDOT do not constitute approval nor acceptance.” SL 155 enforces the existing contract requirement — it is not a reversal. 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.” Meeting minutes from the September 23, 2025 WSDOT-Skanska-AECOM meeting were not provided within 5 calendar days as required by RFP 2.1.2.2.1 (noted in SL 179).
Alex Strom (AECOM) recommended step-pool at the June 4, 2024 Task Force meeting, and WSDOT did not object. This constitutes formal concurrence with the step-pool approach.
A meeting discussion does not constitute a Written Determination or formal concurrence. GP 1-03.7 provides that approval requires a WSDOT representative’s agreement that a submittal “conforms to the respective requirements of the Contract Documents.” No such written concurrence exists in the correspondence record. Meeting minutes were not timely provided (RFP 2.1.2.2.1 requires within 5 calendar days). Absence of objection is not approval.
WDFW confirmed (July 28 and September 16, 2025) that the PHD does not follow stream simulation methodology, supporting AECOM’s position that the requirements are contradictory.
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. The WDFW feedback validates WSDOT’s direction. There is no contradiction: Section 2.30.5.2 is the contract standard; the PHD (a Reference Document per GP 1-03.1) is not.
Cost and schedule impacts are TBD pending design resolution. Skanska reserves rights to equitable compensation for costs incurred in redesigning to stream simulation methodology.
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 if the Design-Builder is asserting a schedule change or disruption.” Both LTR 241 and LTR 249 state costs and schedule are “TBD.” The protest submittal is procedurally deficient on these required elements. Even if costs were provided, no entitlement exists because SL 155 does not constitute a change (GP 1-04.4(5)(b) applies).
| Prior Position | P005 Application | Consistent? |
|---|---|---|
| Protest 003: Table 2.30-B controls; design review ≠ contract change | P005: Section 2.30.5.2 controls; design discussions ≠ concurrence | Yes |
| LTR337: RCSR comments are design review, not direction (GP 1-03.7) | P005: Task Force meetings are design discussions, not concurrence (GP 1-03.7) | Yes |
| LTR337: OIC not warranted — no direction under GP 1-04.4(1) | P005: No change issued — SL 155 enforces existing requirement | Yes |