1. Executive Summary
Decision Requested
Issue written determination denying Protest 019 and all four relief requests after receipt and review of the supplemental (due March 24, 2026).
- Recommendation: Deny — RCSR comments were design review, not direction; Section 1-03.5 bars IED-based entitlement; AECOM’s own analysis found conditions supporting the design
- Cost Exposure: $5,466,392 (PCN-00153; design and construction costs for lateral migration treatment at Juanita Creek FP5)
- Risk Level: Moderate — WSDOT’s legal defenses are strong; the real cost was incurred and RFC was issued; DRB may scrutinize the evidence carefully
- Related: P003 (Sammamish River lateral migration, DRB stage); P005 (Juanita Creek design criteria, closed); SKA-0297 (property rights for buried riprap, separate)
Core Question
Did WSDOT direct the Design-Builder to treat Juanita Creek’s lateral migration as “NOT low” through RCSR Comment 196 (and related comments), entitling Skanska to an OIC for $5,466,392? Or were the RCSR comments design review feedback that pointed out what AECOM’s own analysis showed?
WSDOT’s position: the RCSR comments were design review, not direction. Comment 196 (the critical comment) says “Based on what I read, it seems like this should be your summary” and “if this is not correct, please revise.” The reviewer summarized what AECOM’s own technical evidence showed and gave AECOM discretion to disagree. AECOM’s own FHD (Section 7.1, Appendix O) found erodible soils, beaver activity, and insufficient geotechnical data to exclude lateral migration risk — the design incorporating lateral migration was AECOM’s independent professional judgment, completed “before we received guidance to ignore lateral migration” (AECOM Slide 16).
Three independent legal defenses each independently defeat the claim: (1) Section 1-02.1 shields all WSDOT comments on Design Documents from amending contract requirements — no tone exception; (2) Section 1-03.5 bars any IED-based entitlement and shifts the burden to the DB to prove WSDOT’s interpretation is incorrect or unreasonable; (3) Table 2.30-B designates Juanita Creek lateral migration (structural) as “low” — that designation stands.
The protest (LTR 372, March 10, 2026) protests SL 9727-280 (February 24, 2026). WSDOT acknowledged and denied the extension request (SL 9727-294, March 16, 2026). Supplemental due March 24, 2026.
Key Finding: Design Review, Not Direction
Comment 196 (DJS) — the critical RCSR comment Skanska cites as the directive — reads in full:
“a) Could you make your conclusion clear and complete based on the info you have, 2) Pleased the term ‘NOT low’ is used. Based on what I read, it seems like this should be your summary. ‘Based on the available geologic and geomorphic understanding described in section 2, the risk of lateral migration is NOT low…’ if this is not correct, please revise”
“Based on what I read” — DJS is summarizing AECOM’s analysis. “It seems like” — DJS is suggesting, not commanding. “If this is not correct, please revise” — DJS gives AECOM express discretion to disagree. This is design review, not an OIC. Analysis of 225 RCSR comments (Packages 8 and 9) confirms zero directive language, zero Table 2.30-B references, and 54 “Please” requests.
2. Skanska Assertions and WSDOT Position
Skanska Assertion
SL 9727-280 is procedurally improper as an IED under Section 1-03.5 because (a) it was not requested by the DB, and (b) WSDOT simultaneously claims “no ambiguity” while issuing an IED, which presupposes ambiguity. (LTR 372, Section 1)
WSDOT Position
Section 1-03.5 expressly provides that “WSDOT… may issue its own Interpretive Engineering Decision.” No DB request is a prerequisite — the provision treats DB-requested and WSDOT-initiated IEDs as parallel authorities. The scope clause (“ambiguous or uncertain design requirements”) describes what IEDs may address, not a limitation — interpreting a design requirement does not concede ambiguity. Additionally, SL 9727-280 is also a Written Determination under GP 1-04.5 responding to LTR 337; the substance stands regardless of label.
WSDOT has issued IEDs under the same authority in other contexts (SL 116, Sammamish River P003; SL 9727-209, Waterproofing P010). Skanska recycled this “unsolicited IED” argument in P010 — WSDOT’s answer is the same because the text is clear.
Skanska Assertion
WAC 162-08-017 establishes “shall” = mandatory command under Washington law. RCSR comments using “shall” are therefore directives, not suggestions. (LTR 372, Section 2.1)
WSDOT Position
Three independent reasons this fails. (1) Wrong scope: WAC 162-08-017(1) governs only Chapter 162-08 (Human Rights Commission Practice and Procedure) — not WSDOT contracts. (2) Wrong canon: Even the general principle (RCW 1.12, “shall” is mandatory) is a rule of statutory construction, not contract interpretation. Washington courts interpret contracts under contract-interpretation principles. (3) Even if applied: The “shall” instances in Package 9 Comments 3 and 4 quote BDM 8.1.10 verbatim — the BDM commands the designer, not WSDOT commanding the DB. No new “shall” requirement was created.
Comment 196 uses no “shall” language at all. It says “seems like,” “should be,” and “please revise.”
Skanska Assertion
RCSR Comment 196 explicitly stated the lateral migration risk is “NOT low.” This is WSDOT direction, not design review. RCSR resolution was a prerequisite for RFC. The DB had no practical choice but to incorporate lateral migration treatment.
WSDOT Position
Comment 196 is design review feedback, not direction. The full text shows DJS summarizing AECOM’s own evidence and giving AECOM express discretion to disagree (“if this is not correct, please revise”). AECOM’s FHD Section 7.1 independently found erodible soils, beaver activity, and insufficient geotechnical data to exclude lateral migration — conditions supporting “NOT low” treatment. The design incorporating lateral migration was AECOM’s original professional judgment, completed “before we received guidance to ignore lateral migration” (AECOM Slide 16). WSDOT’s reviewer pointed out what AECOM’s analysis showed.
Furthermore, on July 28, 2025, when RCSR comments on lateral migration were closed, WSDOT explicitly confirmed: “lateral migration at Juanita Creek is defined as low and shall be followed, otherwise need a DBIC from Design Builder.” WSDOT affirmatively confirmed the “low” Table 2.30-B designation and directed the DB to file a DBIC if it disagreed. No DBIC was ever filed.
Skanska Assertion
Section 1-02.1 shields “comments” from amending contract requirements, but not “directions.” If a comment crosses the line into a directive, the shield does not apply. (LTR 372, Section 2.3)
WSDOT Position
Section 1-02.1 makes no tone exception. It provides: “no comments by WSDOT on Design Documents… shall be deemed, construed, or interpreted to (a) amend, supersede, or alter the terms, requirements, limitations, or meaning of any Contract Document.” The word “no” is absolute. There is no distinction between “suggestive” and “directive” comments — any attempt to read such a distinction into the provision creates a category the contract does not contain. The only carved-out class is “Written Interpretive Engineering Decisions.” SL 9727-280 is an IED — but the IED itself denies entitlement. Relying on it does not help Skanska.
Skanska Assertion
Even if Comment 196 contained discretion language, RCSR gating prevented RFC without addressing lateral migration. The DB had no practical choice but to comply.
WSDOT Position
Four separate answers. (1) Comment 196 gave express discretion to disagree (“if this is not correct, please revise”). AECOM could have responded with technical rationale. (2) AECOM’s own analysis agreed with the reviewer — FHD Section 7.1 found insufficient data to exclude lateral migration risk. AECOM did not exercise discretion to disagree because their evidence agreed. (3) AECOM’s design incorporated lateral migration before receiving any RCSR feedback — the design was AECOM’s original professional judgment. (4) Contractual remedies were available: protest within 14 days (GP 1-04.5), DBIC (GP 1-04.4(2)), or technical rebuttal of the comment. The DB used none of these. The July 28, 2025 comment closure explicitly told the DB to file a DBIC if it disagreed — no DBIC was filed.
Skanska Assertion
Timeline and design chain establish cause-and-effect: WSDOT RCSR comments (February 2025) caused the lateral migration design leading to the $5.4M costs committed by December 2025 RFC.
WSDOT Position
The causal sequence runs the other way. AECOM’s design incorporating lateral migration preceded any WSDOT comment. AECOM’s Sediment Depth Discussion presentation (January 16, 2026, Slide 16) states: “The final design of the wingwalls and headwall was completed before we received guidance to ignore lateral migration.” WSDOT’s reviewer did not create the design — the reviewer identified an internal inconsistency between AECOM’s conclusions and AECOM’s evidence. Skanska’s own internal email asked AECOM: “Why was lateral migration included here? We fought so hard to not include lateral migration at the Sammamish River but seemed to accept it here.” Skanska was surprised by AECOM’s design choice — inconsistent with claiming WSDOT “directed” it.
Skanska Assertion
WSDOT enforced “not low” lateral migration treatment at Sammamish River (P003) but denies it directed “not low” at Juanita Creek (P019). This inconsistency shows WSDOT’s P019 position is pretextual. (LTR 372, Section 2.6)
WSDOT Position
No inconsistency. The situations are structurally opposite:
| Factor | P003 (Sammamish) | P019 (Juanita) |
|---|---|---|
| Contract designation | “Not low” per Section 2.30.5.2.1 | “Low” per Table 2.30-B |
| What DB wanted | REDUCE below contract | Designed MORE than Table 2.30-B |
| WSDOT’s action | Enforced contract (SL 116 IED) | Reviewed design. Identified internal inconsistency. |
The unifying principle is that contract requirements are the floor. At Sammamish, WSDOT prevented the DB from going below the floor. At Juanita, AECOM’s own analysis exceeded the floor — WSDOT pointed out what AECOM’s evidence showed. These are different WSDOT functions (enforcement vs. design review). No inconsistency.
Skanska Assertion
The scope impact of lateral migration treatment is not limited to footings. Wingwalls (up to 15 ft deeper), headwall modifications, structural beams, and micropiles were all affected, totaling $5,466,392. Costs are committed following RFC release December 31, 2025.
WSDOT Position
WSDOT does not dispute that design costs were incurred. The question is whether those costs result from WSDOT direction (they do not) or from AECOM’s own engineering analysis and compliance with mandatory standards. The cost driver is the horizontal application of scour to wingwalls under BDM 8.1.10 Figure 8.1.10-2 — not deeper vertical scour. The structural calcs show total scour of 0.65–1.16 ft, governed by the 3 ft WSDOT minimum regardless. The embedment depths (14–19 ft, WW3/WW4) are driven by retained heights of 31–42 ft (tunnel excavation depth), not scour. The incremental cost of lateral migration treatment on walls already 31–42 ft tall for other reasons is substantially less than $5.4M.
Additionally, WSDOT’s Package 9 Comment 2 (HQH, “Preference”) suggested angled wingwalls (25–45 degrees off headwall) that would have reduced wall length, embedment depth, scour exposure, buried riprap need, and eliminated the ROW encroachment problem (SKA-0297) entirely. The DB chose parallel wingwalls. The parallel configuration drove the cost magnitude — a DB design choice, not WSDOT direction.
Skanska Assertion
Buried riprap protects an existing MSE wall downstream of the fish passage structure and constitutes additional scope beyond the fish passage structure itself. This scope is attributable to WSDOT direction.
WSDOT Position
Reserved pending SKA-0297 (Juanita Creek Property Rights). The scour countermeasure obligation derives from Section 2.30.5.6 (“shall locate, design and construct any required scour countermeasures”). AECOM’s own presentation (Slides 18–20) notes the buried riprap is “not connecting to or protecting the new structure” — it protects an existing MSE wall (Wall 2185L-A) downstream. RFP Section 2.6 confirms the existing MSE wall will be partially replaced to install the fish passage structure; contract Section 2.13.4 requires existing wall elements “affected by the Work” to meet minimum foundation cover requirements or be protected against scour. This is a contract obligation, not WSDOT-directed additional scope. Full resolution deferred to SKA-0297.
3. Risk
Defense Layering (Three Independent Defense Lines)
| Layer | Defense | Status |
|---|---|---|
| 1 (Deployed) | RCSR comments were design review with discretion (Comment 196: “seems like,” “please revise”) | In SL 9727-280; primary determination argument |
| 2 (Deployed) | Section 2.30.5.6 required the scour analysis including lateral migration — contractual obligation regardless of RCSR | In SL 9727-280; secondary argument |
| 3 (Reserved) | BDM 8.1.10 requires total scour evaluation for all retaining walls — existing Mandatory Standard, independent of Table 2.30-B fish passage classification | Reserved for DRB — requires engineering testimony to deploy effectively |
Strengths
- Comment 196 text is unambiguous: “seems like,” “should be,” “if this is not correct, please revise” = discretion, not direction
- Section 1-02.1 shield is textually absolute: “no comments… shall be deemed… to amend” — no tone exception
- Section 1-03.5: WSDOT expressly authorized to issue its own IED; entitlement bar applies; burden shifts to DB
- AECOM’s own FHD found erodible soils and beaver activity — the design reflected AECOM’s independent professional judgment
- AECOM’s design preceded any guidance on lateral migration (Slide 16)
- 225 RCSR comments analyzed: zero directive language, zero Table 2.30-B references
- July 28, 2025 comment closure: WSDOT confirmed “low” designation; directed DBIC if disagreed — no DBIC filed (10–11 months)
- Skanska’s own email: “Why was lateral migration included here?” — shows Skanska considered it AECOM’s decision
- Scour depth reality: total scour = 0.65–1.16 ft, governed by 3 ft minimum regardless; cost driver is horizontal BDM 8.1.10 application, not deeper scour
- DB never submitted a DBIC despite being expressly directed to on July 28, 2025
- BDM 8.1.10 provides a third independent defense (reserved): applies to all retaining walls regardless of Table 2.30-B fish passage classification
Potential Weaknesses
- Design impact was real — $5.4M may be supported by actual design differences; DRB will look closely at the technical evidence
- RCSR resolution was a practical prerequisite for RFC — Skanska will argue the DB had no real choice even if Comment 196 was technically discretionary
- SL 247 (P018) admissions (“costs committed,” “materials fabricated”) — sunk cost argument can generate sympathy even if legally irrelevant
- P003/P019 DRB coordination risk: same DRB panel may hear both; RCSR characterization must be consistent (each comment on its own terms)
- BDM 8.1.10 defense reserved for DRB requires engineering testimony — deploying prematurely in a letter without technical backing weakens it
Admissions Against Interest (Skanska/AECOM)
- Skanska email (Slide 17): “Why was lateral migration included here? We fought so hard to not include lateral migration at the Sammamish River but seemed to accept it here.” — Shows Skanska considered it AECOM’s decision, not WSDOT’s direction
- AECOM Slide 4: Acknowledged Table 2.30-B “low” designation; excluded lateral migration from sediment sizing — AECOM knew the contract said “low”
- AECOM Slide 16: “Design completed before we received guidance to ignore lateral migration” — design preceded guidance
- AECOM Slide 17: Tunnel depth “not affected” by lateral migration — narrows scope
- AECOM PCN-00153 framing: AECOM describes WSDOT “preferential direction above and beyond contract requirements” — even AECOM frames it as “preferential direction,” not a clear contract mandate
4. Chronology
| Date | Event |
|---|---|
| 2024-07-03 | PHD submitted for Juanita Creek fish passage — no lateral migration concerns raised in WSDOT comments |
| 2025-01-24 | FHD submitted (BY-CRE-01827). AECOM’s FHD Section 7.1 independently finds erodible soils, beaver activity, and insufficient geotech data to exclude lateral migration. |
| 2025-02-20 | FHD RCSR comments received — Comments 40, 41, 129, 188, 191, 195, 196 on lateral migration. Comment 196 (DJS): “Based on what I read, it seems like this should be your summary” and “if this is not correct, please revise.” |
| 2025-03-25 | Preliminary East Portal design submitted |
| 2025-07-15 | Fish Passage Task Force meeting — Table 2.30-B “low” designation to be followed per SL 280 Section 4 |
| 2025-07-28 | RCSR comments on lateral migration closed consistent with Contract: “lateral migration at Juanita Creek is defined as low and shall be followed; otherwise need a DBIC.” No DBIC filed. |
| 2025-09-12 | WSDOT SL 9727-155 — Juanita Creek design non-compliance (stream simulation — P005 scope, separate) |
| 2025-09-16 | Final East Portal submittal with updated pile depths submitted after Task Force meeting |
| 2025-09-29 | Protest 005 filed (LTR 241) — Juanita Creek Design Criteria (stream simulation; separate) |
| 2025-12-31 | RFC released — East Portal headwall and wingwalls released for construction. Materials fabricated. Costs committed ($5.4M). |
| 2026-01-05 | WSDOT SL 9727-233 — Property rights needed for buried riprap scour countermeasures (SKA-0297) |
| 2026-01-30 | Skanska LTR 337 — Request for Direction; $5,466,392 OIC requested. Attached AECOM Sediment Depth Discussion presentation (Slides 4, 16–17 contain admissions against interest). Filed 66 days after P005 denial. |
| 2026-02-12 | P003 Notice of Dispute filed (LTR 348) — Sammamish River lateral migration escalated to DRB |
| 2026-02-20 | SL 9727-280 restructured as IED under Section 1-03.5 (11 edits from prior draft in Evelyn email review) |
| 2026-02-24 | WSDOT transmits SL 9727-280 — IED on Juanita Creek lateral migration. Denies OIC. Section 1-03.5 entitlement bar cited. RCSR characterized as design review. 4 pages, 7 sections. |
| 2026-03-10 | Skanska LTR 372 — Notice of Protest 019. 5 pages + 2-page AECOM attachment (PCN-00153, Jon Guerrero, PE). 8 new/evolved arguments. Requests 14-day extension for supplemental. |
| 2026-03-16 | WSDOT SL 9727-294 — Acknowledges protest. Extension denied. Supplemental due March 24, 2026. |
| 2026-03-24 | Skanska supplemental due (14 calendar days from LTR 372; extension denied) |
| ~2026-04-14 | WSDOT written determination due (21 calendar days after supplemental per GP 1-04.5) |
5. Cost & Time
Cost Breakdown (from LTR 337, PCN-00153)
| Component | Amount | WSDOT Assessment |
|---|---|---|
| Wingwall depth increase (“up to 15 ft”) | $5,466,392 (total; component breakdown in LTR 337) | Structural calcs show WW3/WW4 embedment 14–19 ft driven by retained heights of 31–42 ft (tunnel depth), not scour depth (0.65–1.16 ft, governed by 3 ft minimum). Cost driver is horizontal BDM 8.1.10 application, not deeper scour. |
| Headwall design modifications | AECOM confirms design completed “before guidance to ignore lateral migration” (Slide 17). Design is AECOM’s original professional work. | |
| Structural beams (supporting headwall redesign) | Consequential to headwall design; AECOM’s original scope. | |
| Micropiles (foundation support) | Driven by soil conditions and retained height, not scour increment from lateral migration. | |
| Buried riprap (downstream MSE wall protection) | Reserved (SKA-0297). Section 2.30.5.6 obligation. AECOM Slides 18–20: “not connecting to or protecting the new structure.” | |
| Tunnel depth (sediment sizing) | — | AECOM confirms: lateral migration “did not impact depth of sediment in tunnel” (Slide 17). Removed from claim. |
Cost Attribution Note
Skanska’s $5.4M claim attributes all lateral migration-related design costs to WSDOT direction via RCSR comments. The actual attribution is more complex: (1) AECOM’s original design incorporated lateral migration before any RCSR comment; (2) BDM 8.1.10 independently required total scour evaluation for wingwalls regardless of Table 2.30-B; (3) the parallel wingwall configuration (DB’s design choice, not WSDOT direction) drove cost magnitude — Package 9 Comment 2 suggested angled wingwalls that would have reduced costs, avoided the SKA-0297 property rights issue, and reduced scour exposure. Quantitative independent cost estimate required to separate WSDOT-attributable costs from AECOM design choices (future DRB phase).
Schedule Impact
No schedule analysis provided with LTR 337 or LTR 372 per GP 1-04.5(2)(d). WSDOT reserves the right to contest any schedule claim raised in the supplemental.
Relief Requests and Disposition
| # | Relief Requested | WSDOT Disposition |
|---|---|---|
| R1 | Reconsider and withdraw SL 9727-280 | Denied — SL 280 correctly interprets contract requirements; RCSR comments were design review; IED properly issued under GP 1-03.5 |
| R2 | Process OIC for $5,466,392 | Denied — No OIC warranted; RCSR review is not direction; GP 1-03.5 bars IED-based entitlement; DB bears burden of proving WSDOT’s interpretation incorrect or unreasonable |
| R3 | Provide direction on buried riprap countermeasures | Reserved — Addressed in WSDOT’s response to SKA-0297 (Juanita Creek Property Rights) |
| R4 | 14 calendar day extension for supplemental (requested: April 7, 2026) | Denied — Per SL 9727-294 (March 16, 2026); standard 14-day deadline applies; supplemental due March 24 |
P003 coordination: Same DRB panel may hear P003 (Sammamish, DRB stage) and P019 (Juanita, protest stage). RCSR characterization must be consistent: each comment described on its own terms. Do not make blanket statements that RCSR comments can never constitute a WSDOT position. Unifying principle: contract requirements are the floor.