Issue: Protest 017 — New Wetland, North Fork Perry Creek (West) — SKA-0219
Incoming Letter: Skanska LTR 338 (January 30, 2026) — Disagrees with closure; $230,919.07 claim
Protesting: WSDOT SL 9727-218 (December 12, 2025) — Closure for lack of substantiation
Prior Determination: SL 9727-128 (July 22, 2025) — Requests substantiation under Section 2.8.5.4.5
| ID | Incoming Assertion | WSDOT Response | Authority | Evidence | Confidence | Disposition |
|---|---|---|---|---|---|---|
| LTR338-1 | Skanska disagrees the matter is closed; it could not provide cost/time information until the permit modification process was complete (permit received 1/9/2026). | WSDOT’s request (SL 128, 7/22/2025) was for information to substantiate anticipated impacts — not for final permit documents. Administrative costs for work already performed were quantifiable months earlier. The JARPA update is dated 10/17/2025. Billing records show work from June–October 2025. LTR 338 is also 35 days past the 14-calendar-day protest window from SL 218. | GP 1-04.5 (protest timeline); SL 9727-128 (request for substantiation) | JARPA cover sheet dated 10/17/2025; Phase 000008/00033/00034 billing records June–October 2025 | HIGH | Deny |
| LTR338-2 | Skanska cooperated in a timely manner with the permit modification process, providing all necessary information for WSDOT to apply for the Section 404 permit modification from ACE. | Noted. Skanska’s cooperation is consistent with its contractual obligations under Section 2.8.5.4.5, which requires the DB to “provide the WSDOT Engineer with all information necessary to obtain a permit modification.” Fulfilling a contractual obligation does not create entitlement to compensation. | RFP 2.8.5.4.5 (“the Design-Builder shall provide the WSDOT Engineer with all information necessary to obtain a permit modification”) | SL 9727-128 directed this submission; SL 9727-107 used identical language for LTR 175 (Juanita Creek) | HIGH | Noted |
| LTR338-3 | Administrative costs of $50,425.23 have been incurred for wetland delineation, SAVL addendum, JARPA updates, Environmental Task Force coordination, and permit modification support. | These costs are the DB’s responsibility under Section 2.8.5.4.5. Additionally, the JARPA update (10/17/2025) covers impact changes across 10+ wetlands and creeks — the majority described as “design changes,” “updated project line work,” and “nominal changes due to design refinement.” Skanska has not demonstrated what portion is solely attributable to the newly discovered wetland versus design-driven changes the DB would bear regardless. | RFP 2.8.5.4.5 (cost allocation); RFP 2.8.5.4 (independent verification obligation) | JARPA Summary of Changes (Atlas, 10/17/2025) — Tables 1–5 show changes to Wetlands 26.55L, 26.35R, 26.50R, 26.70R, 26.77R, 26.78R, 26.79R, NF Perry Creek, SF Perry Creek, Queensborough Creek, UNT. Most reasons: “design changes,” “updated project line work” | HIGH | Deny |
| LTR338-4 | Future design costs will be incurred for ACE-required restoration plans and Washington State Department of Ecology mitigation updates. | Restoration of temporary impacts and mitigation of permanent impacts are DB obligations under Section 2.8.5.4.1 and the permits (Appendix P). Section 2.8.5.4.5 allocates permit modification costs to the DB. Future costs that have not yet been incurred are speculative and do not support a current equitable adjustment. | RFP 2.8.5.4.1 (restoration/mitigation obligation); RFP 2.8.5.4.5 (cost allocation) | ACE Letter (1/9/2026): “Any changes to the mitigation report shall be coordinated with the Corps for review and approval.” This is a permit compliance obligation, not a changed condition. | HIGH | Deny |
| LTR338-5 | Construction staging area for both the fish passage service crane and girder-setting crane decreased due to the wetland boundary, requiring modified crane setups with a cost delta of approximately $124,489. | Even if the causal link were established, Section 2.8.5.4.5 allocates these costs to the DB. Beyond that, Skanska has not demonstrated causation: (1) the relationship between the specific wetland boundary and the planned crane pad location is not documented; (2) no analysis shows alternative configurations maintaining the planned crane sizes were infeasible; (3) the aerial photos do not establish the wetland as the sole or primary constraint versus other site factors. The cost delta also includes items not clearly linked to the wetland ($1,530 “Form Cleaning Time”). | RFP 2.8.5.4.5 (cost allocation); GP 1-02.4 (DB responsible for site conditions) | Crane comparison spreadsheet; annotated aerial photos — both are Skanska’s own representations, not independently verified. Load charts provided but no radius/geometry analysis tying wetland boundary to specific crane requirement. | MEDIUM | Deny |
| LTR338-6 | WSDOT should reopen this matter, process an OIC to incorporate the updated permits, and provide equitable adjustment for all associated administrative costs, design costs, and crane-related construction impacts ($230,919.07 total). | WSDOT has not directed a change. An OIC requires WSDOT to affirmatively authorize and require changes (GP 1-04.4(1)). WSDOT coordinating the Section 404 permit modification is its role as permittee — it does not constitute direction to the DB. The discovery of the wetland, the permit modification costs, and the construction impacts all fall within Section 2.8.5.4.5’s allocation to the DB. GP 1-04.4(5)(l), (p), and (q) further exclude permit delays/changes from design choices from equitable adjustment. | GP 1-04.4(1) (OIC definition); GP 1-04.4(5)(l)(p)(q) (excluded changes); RFP 2.8.5.4.5 (cost allocation) | SL 9727-128 established the Section 2.8.5.4.5 framework; SL 9727-107 applied identical framework to LTR 175 (Juanita Creek). WSDOT’s position is consistent. | HIGH | Deny |
| Disposition | Count | IDs |
|---|---|---|
| Deny | 5 | LTR338-1, LTR338-3, LTR338-4, LTR338-5, LTR338-6 |
| Noted | 1 | LTR338-2 |
The pre-bid WSAR (E10a, SR 522–527, February 2020) lists Wetland 26.55L in Table 3 at 0.20 acres — PFO/PEM (palustrine forested/emergent), Depressional, Ecology Category III, 75-foot buffer. The wetland was identified before the contract was awarded. The progression: 0.20 ac (WSAR, Feb 2020) → 0.428 ac (permitted baseline) → +9,747 SF / 0.224 ac (JARPA expansion) → ~0.65 ac total. LTR 338 characterizes this as a “newly discovered wetland” — this is incorrect.
RFP Section 2.8.5.4 required the DB to “conduct an independent verification prior to the installation of HVF and HVSF to confirm that all Sensitive Areas have been identified.” This obligation exists precisely because the contract anticipated original environmental documents might not capture everything. The DB was responsible for verifying the boundary of the known 0.20-acre Wetland 26.55L.
The $50,425 Atlas cost is presented as a single line item for “Administrative costs associated with updating permits and maps to document new wetland at North Fork Perry Creek.” But the JARPA update covers changes to 11 wetlands and waterways. No allocation methodology is provided. Skanska has not identified which JARPA changes are solely attributable to the new wetland versus design-driven changes.
The $124,489 crane claim lacks: (1) a survey showing the actual wetland boundary relative to planned crane pad locations; (2) an engineering analysis demonstrating the planned 80T crane was infeasible at the available position; (3) analysis of whether the wetland was the sole constraint; (4) justification for the 110T Kobelco selection; (5) explanation of $39,749 oiler charge (only applies because they chose >100T).
| Deadline | Trigger | Calculation | Expiration | Status |
|---|---|---|---|---|
| Protest window | SL 9727-218 (12/12/2025) | 14 calendar days | ~12/26/2025 | EXPIRED — LTR 338 is 35 days late |
| Protest 017 supplement | LTR 369 (3/6/2026) | 14 calendar days | 3/20/2026 | DUE TODAY |
Response Matrix — SKA-0219 NF Perry Creek Wetland — Last updated 2/10/2026