## 1-04.4 Changes – OIC (WSDOT-Initiated) and DBIC (Design-Builder Initiated)

This file is a focused extract of the key 1-04.4 subsections we use in the OIC/DBIC → Protest/Dispute/Claim backbone.

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## 1-04.4 *Changes*
Change Orders will be transmitted electronically to the Design-Builder for signature. The Design-Builder shall apply all signatures electronically using the software provided by WSDOT. Within 21 Calendar Days of execution of the Contract, the Design-Builder shall submit a Type 1 Working Drawing consisting of the names, email addresses, and text-message capable phone numbers for the authorized Change Order signers and shall bear the name, phone number, and email of the Design-Builder's representative providing this authorization. Delegation of authority to sign Change Orders shall be by the Design-Builder's representative authorized to sign the Contract.

### 1-04.4(1) WSDOT-Initiated Changes
WSDOT reserves the right to authorize and require changes in the Work within the general scope of the Contract as provided herein. Such changes shall not invalidate the Contract nor release the Surety, and the Design-Builder agrees to perform the Work as altered. Among others, these changes may include:

1. Deleting any part of the Work
2. Adding new Work
3. Otherwise modifying the scope of the Work
4. Otherwise revising the terms and conditions of the Contract Documents
5. Altering facilities, equipment, materials, services, or Sites provided by WSDOT
6. Ordering the Design-Builder to speed up or delay the Work

The Technical Proposal is a part of the Contract and the concepts contained therein shall not be materially changed unless authorized by WSDOT. Changes in the Design Documents by the Design-Builder to meet Contract requirements or correct deficiencies, that do not materially change the Technical Proposal, are the responsibility of the Design-Builder and are not considered a change in the Work. No adjustment will be allowed to Contract Price or Contract Time for such changes.

If WSDOT determines that a change in the Work directed by WSDOT increased or decreased the Design-Builder's Contract Price or Time required for performance of the Work, WSDOT will make an equitable adjustment, excluding the loss of anticipated profits, to the Contract. The equitable adjustment will be by agreement with the Design-Builder. However, if the parties are unable to agree, WSDOT will determine the amount of the equitable adjustment in accordance with Section 1-09.4 and adjust the Contract Price as WSDOT deems appropriate. Extensions of Contract Time will be evaluated in accordance with Section 1-08.8. WSDOT's decision concerning equitable adjustment and extension of Contract Time shall be final as provided in Section 1-05.1.

The Design-Builder shall maintain concurrent time and materials records for all Work performed which it believes constitutes extra Work (including non-construction Work), pending issuance of a Change Order or resolution of any dispute in accordance with Section 1-04.5.

The Design-Builder shall proceed with WSDOT-directed changes in the Work upon receiving:
1. A Written Change Order approved by WSDOT
2. An oral order from WSDOT before receiving the Written Change Order

Within 14 Calendar Days of delivery of the Change Order, the Design-Builder shall endorse and return the Change Order, request an extension of time for endorsement, or respond in accordance with Section 1-04.5. WSDOT may unilaterally process the Change Order if the Design-Builder fails to comply with these requirements. The Design-Builder shall obtain Written consent of the Surety or Sureties if WSDOT requests such consent.

The Design-Builder accepts all requirements of a Change Order by:
1. Endorsing it
2. Not responding within the allotted time as outlined in Section 1-04.4
3. Not protesting in accordance with Section 1-04.5.

A Change Order that is not protested as provided in this Section shall be full payment and final settlement of all claims for Contract Time and for all costs of any kind, including costs of delays, related to any Work either covered or affected by the change. By not protesting in accordance with Section 1-04.5, the Design-Builder also waives any additional entitlement and accepts from WSDOT any Written order (including directions, instructions, interpretations, and determinations).

### 1-04.4(2) Design-Builder Initiated Changes
It is the desire of WSDOT to allow the Design-Builder to have significant flexibility in determining how best to design and construct the Project, within the parameters established by the Contract Documents. The Design-Builder is encouraged to propose changes whenever it identifies potential savings. This Section sets forth the requirements applicable for addressing Design-Builder Initiated Changes. Approval of a Design-Builder Initiated Change is at WSDOT's sole discretion. Design-Builder Initiated Changes fall into one of the following categories:

1. Changes that are based on an idea(s) derived from a Proposal submitted by an unsuccessful Proposer. All cost savings realized shall be shared between the Parties in accordance with Section 1-04.4(2).3.
2. Changes that do not meet the requirements of item 1 above, and are deemed by WSDOT in its sole discretion to be equal or better than the Contract requirement proposed to be changed. All cost savings realized shall be kept by the Design-Builder. These changes if approved will be implemented into the Contract as a no cost Change Order. Section 1-04.4(2).3 does not apply to this category of change.
3. Changes resulting from the PDW or other changes that require a Design Analysis. Any cost or time adjustments derived from this change shall be negotiated. Negotiations will take into consideration the value of deletions, additions, cost savings, Contract Time, risk, engineering, short- and long-term financial impacts to WSDOT and the travelling public, and other tangible costs. Section 1-04.4(2).3 does not apply to this category of change.
4. Changes that do not meet the requirements of either category 1, 2 or 3 above. Any cost savings derived from this change shall be shared as the parties mutually agree. Section 1-04.4(2).3 does not apply to this category of change.

#### 1-04.4(2).1 Required Information
At a minimum, the following information shall be submitted by the Design-Builder with each Design-Builder Initiated Change:

(a) A statement that the submission is a Design-Builder Initiated Change, and a narrative description of the proposed change, including identification of the type of change as described above.
(b) Description of the existing Contract requirements that are involved in the proposed change.
(c) Discussion of differences between existing requirements and the proposed change, together with advantages and disadvantages of each changed item.
(d) Itemization of the Contract requirements (with reference to specific Sections) which must be changed if the Design-Builder Initiated Change is approved.
(e) Justification for changes in function or characteristics of each item, and effect of the change on the performance of the end item, as well as on the meeting of requirements contained in the Contract Documents, including environmental compliance requirements.
(f) A description of any previous use or tests of the proposal and the conditions and results. If the proposal was previously submitted on another WSDOT project, indicate the date, Contract number, and the action taken by WSDOT.
(g) Date or time by which a Change Order adopting the Design-Builder Initiated Change must be issued in order to obtain the maximum cost reduction noting any effect on each applicable Contract Schedule.
(h) A complete cost analysis, including (i) a cost estimate for the existing Contract requirements compared to the Design-Builder's cost estimate of the proposed changes, (ii) an estimate of any additional costs that will be incurred by WSDOT, including any additional Right of Way and Relocation Costs, and (iii) an analysis of cost and schedule risks due to the need to modify permits and other environmental documents as applicable.
(i) Costs of development and implementation by the Design-Builder. Any additional information requested by WSDOT shall be provided in a timely manner. Additional information could include results of field investigations and surveys, design computations, and field change sheets.

#### 1-04.4(2).2 WSDOT Review and Approval or Rejection

**Review of Design-Builder Initiated Changes**
Upon receipt of a Design-Builder Initiated Change, WSDOT will process it expeditiously, but will not be liable for any delay in acting upon any proposal submitted pursuant to this Section. The Design-Builder may withdraw all or part of any Design-Builder Initiated Change at any time prior to approval by WSDOT. Each party shall bear its own costs in connection with preparation and review of Design-Builder Initiated Changes.

**Approval of Design-Builder Initiated Changes**
WSDOT may approve, in whole or in part by Change Order, any Design-Builder Initiated Change submitted. Until a Change Order is issued on a Design-Builder Initiated Change, the Design-Builder shall remain obligated to perform in accordance with the Contract Documents. The decision of the rejection or approval of any Design-Builder Initiated Change will be at the sole discretion of WSDOT and will be final and not subject to partnering, dispute resolution, or appeal.

**Rejection of Design-Builder Initiated Changes**
WSDOT will determine whether a Design-Builder Initiated Change qualifies for consideration and evaluation. Design-Builder Initiated Changes that require excessive time or costs for review, evaluation, or investigations, or that are not consistent with WSDOT's design policies and basic design criteria may be rejected.

The Design-Builder shall have no claim for any additional costs or delays resulting from the rejection of a Design-Builder Initiated Change, including development costs, loss of anticipated profits or increased material or labor costs. In evaluating Design-Builder Initiated Changes, WSDOT will consider only proven features that have been employed under similar conditions or projects acceptable to WSDOT.
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