On Monday, The Washington State Department of Transportation notified Seattle Tunnel Partners (STP), the design-build contractor on the State Route 99 Tunnel Project, that actions identified in a recent FHWA report constitute breach of contract, as the contractor erected barriers and created hardships to DBE participation. FHWA issued the report in response to a complaint filed by a DBE firm. By declaring the contractor in breach, WSDOT now has multiple enforcement and oversight actions available to ensure that STP implements steps necessary to achieve the 8 percent DBE participation goal.
“The actions described in the FHWA report are unacceptable,” said Transportation Secretary Lynn Peterson. “We are increasing our oversight on these issues, and working to ensure that STP provides a level playing field to DBE firms and offers fair opportunities to compete for the work generated by the SR 99 Tunnel Project.”
Richard Mitchell, a Seattle-area attorney with expertise in civil rights contracting law, was hired as a Special Assistant Attorney General to provide a third-party review of the FHWA report. After Mr. Mitchell reviewed FHWA’s findings and the documents used during their investigation and conducted interviews; he determined that STP’s noncompliance with DBE requirements constituted a breach of contract, and provided recommendations to WSDOT for next steps.
Under the terms of the contract, WSDOT could pursue monetary or other sanctions against STP. WSDOT has communicated to STP the conditions which much be met in order to avoid those sanctions.
• STP must allow WSDOT to monitor all activity related to subcontracting policies and procedures. WSDOT oversight and monitoring will be done to ensure that STP is not creating hardships or barriers to DBE participation. Should the agency determine that STP is not conducting business in an honest and open manner, WSDOT could proceed with sanctions.
• STP must meet quarterly participation targets established by WSDOT. WSDOT will establish monthly and quarterly targets that must be achieved in order to meet or exceed the 8 percent participation goal. STP will provide monthly progress reports which must provide verifiable information demonstrating how the monthly and quarterly targets were met. If the quarterly goals are not met, WSDOT could proceed with sanctions.
“What is most important is that we all work together so that the many qualified, certified DBE firms in Washington receive work and economic opportunities generated by this project, and agency and contractor efforts are best invested in ensuring that outcome,” Peterson noted.
The agency also outlines other actions for STP, such as hiring a DBE program monitor to oversee DBE participation efforts, implementing specific DBE procedures and practices, and executing the DBE Action Plan created by STP in recent weeks, after it has been reviewed and accepted by WSDOT.
