1. Executive Summary
Decision Requested
Issue resolved. Closed by mutual agreement December 26, 2025 (WSDOT SL 9727-226). No further action required.
- Recommendation: Deny OIC — angular rock use was non-compliant with HPA and material specifications
- Cost Exposure: $39,048.29 claimed; resolved at $0 via mutual agreement
- Risk Level: Resolved — closed December 26, 2025
Core Question
Did WSDOT’s direction to replace angular rock used in the Juanita Creek Temporary Stream Diversion Plan constitute an Owner-Initiated Change, or was it enforcement of existing environmental permit and material requirements?
Skanska used angular rock as part of the Temporary Stream Diversion Plan (TSDP) at Juanita Creek. WSDOT identified that the angular rock was non-compliant with environmental permits (HPA) and material specifications, and directed its removal and replacement. WSDOT denied the request three times (SL 9727-151, SL 9727-174, SL 9727-192), citing Section 1-04.4(5).
Skanska filed a formal protest (LTR 281, Nov 20, 2025) and supplemented with a claimed amount of $39,048.29 and no time impact (LTR 286, Dec 4, 2025). Before WSDOT issued a written determination, Skanska agreed to close the protest in exchange for WSDOT closing a separate liquidated damages issue (SL 136). WSDOT agreed and the protest was resolved by mutual agreement (SL 9727-226, Dec 26, 2025).
2. Skanska Assertions and WSDOT Position
Skanska Assertion
The selection of angular rock for the Juanita Creek TSDP falls under the Design-Builder’s discretion over construction means and methods. The angular rock was an acceptable construction choice, and WSDOT’s direction to replace it constituted an Owner-Initiated Change entitling Skanska to cost recovery of $39,048.29 (LTR 286).
WSDOT Position
Discretion over means and methods does not grant the right to use non-compliant materials. The angular rock violated environmental permits (HPA) for the stream diversion. WSDOT’s direction was a rejection of non-conforming work — not an OIC. Rejecting non-compliant material and enforcing existing environmental permits does not constitute a change to the Contract; it is enforcement of baseline requirements (SL 9727-192, SL 9727-208).
Skanska Assertion
Skanska sought an OIC and retraction of the NCI, arguing WSDOT was imposing requirements beyond the contract. The repeated OIC requests (LTR 224, LTR 235, LTR 258) reflect Skanska’s view that the direction was a new requirement.
WSDOT Position
Per GP 1-04.1(1) and RFP Section 2.8, the Design-Builder is solely responsible for compliance with all Governmental Approvals, including the HPA. If the TSDP methodology using angular rock violates the HPA, the Design-Builder must correct it at its own expense. WSDOT is not responsible for cost impacts arising from the Design-Builder’s failure to select compliant materials for temporary works. The NCI was properly maintained through three denial letters citing Section 1-04.4(5).
3. Risk
Strengths
- WSDOT’s defense rested on fundamental principle: the Design-Builder bears the cost of replacing non-compliant materials in temporary works.
- Three successive denial letters (SL 151, 174, 192) citing Section 1-04.4(5) established a consistent position.
- Environmental permit (HPA) non-compliance is clear-cut; distinguishable from design disputes where ambiguity exists.
Potential Weaknesses (as of time of closure)
- Written determination had not yet been issued at time of closure; merits were never formally adjudicated in a determination.
- Skanska’s characterization of the angular rock direction as an OIC — rather than enforcement — could have raised procedural complexity if pursued to DRB.
Defense Layering
| Layer | Defense | Use In |
|---|---|---|
| 1. | Angular rock was non-compliant with HPA and material specifications; rejection was not an OIC but enforcement of baseline requirements | Determination / DRB Referral |
| 2. | GP 1-04.1(1) and RFP Section 2.8: Design-Builder solely responsible for environmental permit compliance | DRB Referral / Hearing |
| 3. | Section 1-04.4(5)(j): Correction of Nonconforming Work is the Design-Builder’s exclusive responsibility | Reserve |
Resolution Note
Issue resolved by mutual agreement December 26, 2025. Skanska agreed to close Protest 008 in exchange for WSDOT closing a separate liquidated damages issue (SL 136). No cost adjustment was made. WSDOT SL 9727-226 confirms closure.
4. Chronology
| Date | Event |
|---|---|
| 2025-08-27 | Skanska LTR 224 — Requests OIC and retraction of NCI for Juanita Creek angular rock TSDP |
| 2025-09-05 | WSDOT SL 9727-151 — Denies OIC; NCI remains |
| 2025-09-19 | Skanska LTR 235 — Elaborates; requests OIC again |
| 2025-10-07 | WSDOT SL 9727-174 — No merit for OIC; cites Section 1-04.4(5) |
| 2025-10-20 | Skanska LTR 258 — Responds; requests OIC again |
| 2025-11-06 | WSDOT SL 9727-192 — Maintains position; no OIC; NCI remains |
| 2025-11-20 | Skanska LTR 281 — Notice of Protest 008 (Issue SKA-0186) |
| 2025-12-02 | WSDOT SL 9727-208 — Acknowledges protest; requests supplement by December 4 |
| 2025-12-04 | Skanska LTR 286 — Supplemental; $39,048.29; no time impact |
| 2025-12-24 | Skanska LTR 307 — Agrees to close Protest 008 in exchange for WSDOT closing separate LD issue (SL 136) |
| 2025-12-26 | WSDOT SL 9727-226 — Agrees to close. Issue resolved by mutual agreement. |
5. Cost & Time
Skanska’s Claim
| Category | Amount |
|---|---|
| Angular rock replacement cost (Juanita Creek TSDP) | $39,048.29 |
| Total Cost Claimed | $39,048.29 |
| Schedule Extension | None claimed |
Resolution
| Scenario | Cost | Time |
|---|---|---|
| WSDOT position (NCI enforcement, not OIC) | $0 | None |
| Mutual agreement closure (Dec 26, 2025) | $0 | None |
Protest 008 was closed by mutual agreement. WSDOT agreed to close this protest in exchange for Skanska closing a separate liquidated damages issue. No cost or time adjustment was issued.