SR 99 DRB Issues Recommendation

The three-member dispute review board (DRB) appointed by WSDOT and Seattle Tunnel Partners (STP) to assist in resolving contractual disputes issued its latest recommendation in a report dated April 28, 2015. The question before the board was narrow in scope: Was an 8-in. steel well-casing within the work zone adequately identified in the contract? The board determined that the well casing was clearly identified in contract documents, but that the contract documents did not clearly identify that the casing was made of steel.

The DRB recommendation states: This Recommendation is not to be considered as providing any information or merit related to the question of any impacts or cost that might have resulted from this obstruction encounter. This Recommendation only addresses the specific question of whether or not the 8-inch steel casing is a DSC under the Contract.

“The Board as identified in its DRB Findings and Conclusions is that the TBM’s encounter with the eight-inch steel casing at TW-2 is a Type 1 Differing Site Condition.”

Recommendations made by the board are not legally binding; they are simply one step in a prescriptive process designed to aid WSDOT and STP in resolving contractual disagreements. In addition to saying nothing about what damaged the tunneling machine, the recommendation does not assign any cost related to this issue.

Alaskan Way Viaduct Replacement Program Administrator Todd Trepanier made the following statement: “It’s important to emphasize the specific question before the dispute review board was narrow in scope and only addressed one issue: whether an existing 8-in. steel well-casing is a ‘differing site condition’ under the terms of the SR 99 tunnel contract. The hearing and subsequent recommendation did not deal with how the tunneling machine was damaged or the costs associated with repairs. The process of resolving disputes can be complicated and must follow the contract. WSDOT disagrees with the recommendation and does not consider this issue to be resolved. We are concerned with the reasoning used by the dispute review board in reaching the recommendation. We are reviewing it and will continue to pursue the best interests of taxpayers as we determine the appropriate next steps.”

Seattle Tunnel Partners Project Manager Chris Dixon made the following statement: “Seattle Tunnel Partners’ position was that the presence of the 8-in. diameter steel casing constituted a differing site condition under our contract with WSDOT. The dispute review board’s recommendation supports and upholds Seattle Tunnel Partners’ position and represents one step in the prescribed process for resolving disputes under the contract. Seattle Tunnel Partners agrees with the recommendation. Seattle Tunnel Partners has advised WSDOT that Seattle Tunnel Partners has accepted the recommendation and considers this issue to be resolved.”