Article by David Hatem

In a June 14, 2022 Unpublished Opinion, the Court of Appeals of the State of Washington in Washington State Department of Transportation v. Seattle Tunnel Partners, No. 54425-3-11, 2022 WL 2132780, (Wash. Ct. App. 2022), (“WSDOT-STP”) affirmed a Trial Court judgment denying entitlement of a Design-Builder’s differing site condition (“DSC”) claim. The WSDOT – STP litigation arose out of the Alaskan Way Viaduct project, in Seattle, in which WSDOT, as project Owner, awarded a design-build contract to STP, as Design-Builder, for the design and construction of a tunnel. In the procurement process, WSDOT provided proposers with multiple reports, some of which were classified as Contract Documents, while others were classified as merely Reference Documents, i.e. which were provided for information but were not part of the Contract Documents. During tunneling, STP’s tunnel boring machine (“TBM”) encountered Test Well 2 (“TW-2”), a pipe that had a 3/8-inch-thick, eight-inch diameter, steel well casing. That encounter resulted in the suspension of tunneling due to damage to the TBM and the need for its repair. STP submitted to WSDOT notice of a DSC on the basis that TW-2 was not properly or fully identified in the Contract Documents.

The Contract Documents defined a DSC as “actual subsurface or latent physical conditions at the Site that are substantially or materially different from the conditions” indicated in the GBR or GEDR (i.e., the Contract Documents). The GBR instructed that the GBR “must be read in conjunction with the GEDR.” STP’s DSC claim was denied by WSDOT and the dispute proceeded to litigation and trial. The Trial Court entered judgment denying DSC entitlement, and STP appealed. The appellate court rejected all STP arguments and sustained the trial court decision.

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This article is published in ConstructionRisk Report, Vol. 24, No. 6 (July 2022).

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