Decision Requested

Issue written protest determination denying Skanska LTR 377 (March 13, 2026) supplemental protest on bridge deck thickness at Bridge No. 405/70N-W (northbound I-405 to westbound SR 522).

• Recommendation: Deny — contract framework is strong regardless of discrepancy magnitude
• Cost Exposure: $378,613 ROM claimed; below $1.5M DSC threshold; WSDOT exposure = $0
• Risk Level: Low-to-moderate — contract language is clear; Skanska’s strongest argument is equitable (pre-bid coring impracticality on active I-405)

Core Question

Does Skanska’s reliance on as-built deck thickness drawings entitle it to a Differing Site Condition claim, or does TR 2.13.1’s explicit disclaimer and field verification requirement — combined with the Reference Document provisions (GP 1-01.3, GP 1-02.2) — place dimensional risk on the Design-Builder?

Penhall (demolition subcontractor) discovered deck thickness exceeding as-built documentation on Bridge 405/70N-W during active demolition on January 24, 2026. As-built drawings (Appendix N02_5) show 6.5–7” original deck plus ~1.5” 1996 overlay (total ~8–8.5”). Field measurements show 8.5” at the south end (effectively no discrepancy) to 10–10.5” at the north end (up to ~2.5” discrepancy). Skanska’s claim uses 7.0” as the as-built baseline, ignoring the documented 1996 overlay.

WSDOT issued a written determination on February 12, 2026 (SL 9727-264) denying the DSC on three grounds: (1) TR 2.13.1 explicitly disclaims dimensional accuracy of bridge as-builts and requires the Design-Builder to field verify existing dimensions; (2) as-built drawings (Appendix N2) are designated “R” (Reference Documents) in Appendix A1, which the DB relies on “at its own risk” per GP 1-01.3 and GP 1-02.2; (3) Form A/ITP 3.3.4 certification that Skanska inspected and examined the site. Skanska filed Notice of Protest 016 on February 26, 2026 (LTR 359) and a 55-page supplemental protest package on March 13, 2026 (LTR 377).

LTR 377 adds a Type (b) DSC argument (“physical conditions of an unusual nature”), rebuts all three WSDOT grounds, includes the Modjeski and Masters structural verification memo (which found no modification to demolition plans is needed despite increased dead load), and provides Penhall’s deck thickness mapping using an inflated 7.0” baseline. The protest response is pending.

Strengths

• TR 2.13.1 is unambiguous and specific to bridge as-builts: disclaimer of dimensional accuracy + field verification obligation. No comparable provision in Vault NW12 (SL9727-079), making this case stronger than the precedent.
• GP 1-01.3 and GP 1-02.2: as-built drawings (Appendix N2) are Reference Documents relied on “at its own risk.”
• Modjeski and Masters memo (February 9, 2026) — Skanska’s own structural engineer concluded “no modification to demolition plans is needed.” The primary cost driver ($235K “5% removal increase”) is not supported by any methodology change.
• Penhall baseline flaw: using 7.0” instead of 8.0–8.5” inflates the apparent discrepancy and overstates cost/volume claims.
• ITP provisions prove investigation mechanism existed and cost/risk were allocated to proposers (ITP 2.6, 2.7.3, 2.2, 3.3.4).
• Below DSC threshold: $378,613 ROM is far below the GP 1-04.7 $1.5M threshold even if entitlement existed.

Potential Weaknesses

• Most vulnerable: a sympathetic DRB applying equitable reasoning about what a “reasonable” proposer would actually do — coreing an active I-405 bridge during procurement raises practical fairness concerns even if contractually required.
• TR 2.13.1 “as required for their Work” timing ambiguity: Skanska argues this is a performance obligation (during construction), not a pre-bid obligation. The contract text does not specify timing.
• No clear delineation of overlay layer in physical core samples (Hayden Wolf observation) — could complicate baseline argument if Skanska argues the overlay is not visually identifiable.

Defense Layering

Layer	Defense	Use In
Primary	TR 2.13.1 — explicit disclaimer of dimensional accuracy + Design-Builder field verification obligation	Protest Response — Lead
Secondary	GP 1-01.3 + GP 1-02.2 — Reference Documents relied on “at own risk”; no entitlement to rely	Protest Response
Tertiary	ITP 3.3.4 + GP 1-02.4(1) — “conclusive evidence” of site inspection; ITP 2.6 access mechanism existed; Skanska never requested access	Protest Response (ITP 3.3.4 already in SL-264)
Forensic	Penhall baseline flaw (7.0” vs. 8.0–8.5” corrected) — deflates discrepancy at south end to zero; M&M memo shows no methodology change needed	Protest Response — Cost/Schedule Rebuttal
Reserve	ITP 2.7.3 (“sole expense”) + ITP 2.2 (“bears the risk”) — investigation cost and risk allocated to proposers; GP 1-02.4(1) conclusive evidence for DRB; Vault NW12 precedent (SL9727-079)	DRB Position Paper / Hearing

Fallback Position

The $378,613 ROM falls entirely below the $1.5M DSC threshold in GP 1-04.7. Even if entitlement were established, WSDOT’s first-dollar responsibility would be $0 — Skanska bears the first $1.5M. Engineering re-evaluation ($38,500) produced no actionable changes. The only material cost exposure is the north-end demolition adjustment (~$235K) which is unsupported by any methodology change (per M&M memo).