INTERNAL MEMO — DO NOT SEND

Protest 015: BNSF Contaminated Soil — Contract Analysis and Determination

Contract No.: 009727
Project: I-405/Brickyard to SR 527 Improvement Project
Date: January 21, 2026 (updated February 2026 with LTR 344 protest response analysis)
Prepared by: WSDOT Contract Analysis Team
Subject: Analysis Supporting Denial of Skanska LTR 312 Force Account Claim ($196,848.74)
Responding to: LTR 344 (Feb 6, 2026) and LTR 357 (Feb 20, 2026)

I. Executive Summary

This memorandum documents the analysis leading to WSDOT’s determination that Skanska’s $196,848.74 Force Account claim for contaminated soil removal at Site ID 6 (BNSF ROW) should be denied in full.

Primary Finding: Section 2.8.5.8 places known contamination handling within “The Work” for the lump sum Contract Price. Technical Requirements take precedence over GSP Mandatory Standards regardless of CO 040 per Section 2.8.2 and GP 1-03.2(2)’s “notwithstanding” clause. The Force Account payment provision (GSP 2-02.5.OPT7.GR2) is additionally excluded from integration by GP 1-03.3 and defeats itself by referencing GP 1-09.6, which excludes original scope items.

II. Key Facts

III. Controlling Contract Language

Section 2.8.5.8 (Technical Requirements — PRIMARY AUTHORITY)

“Known contamination has been identified within the ROW. The Design-Builder shall refer to the Hazardous Materials Report in Appendix E. All identified contamination shall be addressed in the RFC Documents… The Work shall include inspection, mitigation, handling, and disposal of any known or suspected contamination.”

This provision is dispositive. Known contamination handling and disposal are part of “The Work.” Per GP 1-04.1(1), the Contract Price includes all Work. No separate payment is available.

The Two-Track Payment Structure (Contract Design Confirmed)

The contract establishes two distinct tracks — a deliberate design confirmed by the structural relationship between adjacent provisions:

Site ID 6 contamination was disclosed in E09a2 and E09a5. It is Track 1. The lump sum Contract Price is the payment mechanism.

IV. Order of Precedence Analysis

Defense Layer 1 — Section 2.8.2 + GP 1-03.2(2) “Notwithstanding” Clause (Lead)

Section 2.8.2 (Mandatory Standards) explicitly lists “Special Provisions (Appendix B)” as Mandatory Standard #1 within the Technical Requirements. This is the link: GSPs are Mandatory Standards listed within the TR.

GP 1-03.2(2) provides:

“Notwithstanding the order of precedence listed above:… In the event of a conflict among any Mandatory Standards, the order of precedence designated in the Technical Requirements regarding said standards shall prevail. The Technical Requirements shall take precedence over all Mandatory Standards listed within the Technical Requirements.”

Chain is airtight: Section 2.8.2 establishes GSPs as Mandatory Standards within TR → GP 1-03.2(2) “notwithstanding” clause says TR controls over all such Mandatory Standards → Section 2.8.5.8 (TR) controls over GSP 2-02.5 — regardless of CO 040’s precedence position.

Defense Layer 2 — GP 1-03.3 Exclusion (Secondary)

GP 1-03.3 incorporates Standard Specifications Divisions 2–9 “excluding measurement and payment Sections.” GSP 2-02.5.OPT7.GR2 is titled “Payment.” It is excluded from integration through the Standard Specifications pathway.

Defense Layer 3 — GSP Self-Referral (Tertiary / Reserve)

Even if the GSP were fully operative at Change Order precedence, it defeats itself: GSP 2-02.5 routes to “force account as provided in Section 1-09.6.” GP 1-09.6 excludes “an item which was included in the original scope of the Work.” Section 2.8.5.8 places this work in the original scope. The GSP’s own payment pathway leads to a dead end for Track 1 work.

Note on CO 040:

CO 040 was a no-cost version correction (Appendix B03: 2023 Std Specs → 2022). The Change Record states it “replaces Appendix B03 with the version that should have been issued at the time of the RFP advertisement.” GSP 2-02.5.OPT7.GR2 (dated December 4, 2006) predates both versions and was not modified. CO 040 did not create new payment entitlements.

V. Skanska Admissions Against Interest

• LTR 256: “Per the guidance provided for in the contract documents, specifically Appendices 09a2 and 09a5” — proves knowledge of disclosure before work commenced.
• LTR 308: Skanska stated Appendix E “specifically identifies this location as having ‘TPH, Creosote, Metals.’” — cannot simultaneously argue contamination was not disclosed.
• Skanska cannot argue both (a) “this is not a DSC because contamination was disclosed” (to avoid $1.5M threshold) and (b) “we should get Force Account for known contamination” (to get immediate payment).

VI. Design Choice Factor

E09a5 downgraded Site ID 6 from Moderate to Low risk specifically because “Construction activities are now limited to potentially using the area for staging.” The sampling requirement was conditional: “if the contractor proposes construction activities that would require any excavation.”

WSDOT did not require excavation at this location. Skanska, as Design-Builder, elected to excavate approximately 910 tons from a disclosed contamination site. This design choice triggered the contamination encounter. Skanska assumed the risk of consequences of their own design decisions. (Reserve this argument for DRB — do not lead with it in the determination letter.)

VII. Claim Analysis

VIII. Risk Assessment

Strengths

• Section 2.8.5.8 is unambiguous: “The Work shall include…handling, and disposal”
• Order of Precedence analysis airtight: Section 2.8.2 → GP 1-03.2(2) notwithstanding clause → Section 2.8.5.8 controls
• Skanska’s own letters prove knowledge (LTR 256, LTR 308)
• Contract structure (two-track framework) confirms deliberate allocation
• GP 1-04.7 $1.5M threshold: even if DSC existed, claim is below threshold

Potential Weaknesses / Risk Items

• SL 9727-189 directed FA tracking — Skanska relied on this direction. Mitigated: tracking directive was procedural, not a payment commitment; SL-248 corrected the analysis.
• WSDOT’s initial DSC determination (SL-224) was contractually incorrect — creates estoppel argument. Mitigated: SL-248 explicitly withdrew SL-224 and explained the correction.
• E09a5’s explicit “develop GSPs and SPs” language is a documented WSDOT promise Skanska can point to at DRB.
• Industry practice favors Force Account for hazmat — equitable DRB sympathy risk. Mitigated by strength of contract language.

Alternative / Fallback Position

If full denial is deemed too aggressive after legal review, a partial denial position is available based on the GSP’s internal distinction between excavation (bid scope) and disposal (Force Account):

Note: This position concedes that the GSP applies, which undermines the primary analysis. Do not offer this position in the determination letter. Reserve for post-DRB settlement consideration only if legally advised to do so.