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Chapter 39.04 RCW

PUBLIC WORKS

RCW Sections

39.04.010Definitions.
39.04.015Adjustment to bid price -- Conditions.
39.04.020Plans and specifications -- Estimates -- Publication -- Emergencies.
39.04.040Work to be executed according to plans -- Supplemental plans.
39.04.050Contents of original estimates.
39.04.060Supplemental estimates.
39.04.070Account and record of cost.
39.04.080Certified copy to be filed -- Engineers' certificate.
39.04.100Records open to public inspection -- Certified copies.
39.04.105Competitive bidding -- Written protests -- Notice of contract execution.
39.04.107Competitive bidding -- Bidder claiming error.
39.04.110Penalty for false entries.
39.04.120Change orders due to environmental protection requirements -- Costs -- Dispute resolution.
39.04.130Application of RCW 39.04.120.
39.04.133State capital improvement or construction projects -- Product standards.
39.04.135Demolition projects -- Recycling or reuse of materials.
39.04.155Small works roster contract procedures -- Limited public works process -- Definition.
39.04.156Small works roster manual -- Notification to local governments.
39.04.160Contracts subject to requirements established under office of minority and women's business enterprises.
39.04.162Awards of procurement contracts to veteran-owned businesses.
39.04.170Application of chapter to performance-based contracts for energy equipment.
39.04.175Application of chapter to certain agreements relating to water pollution control, solid waste handling facilities.
39.04.180Trench excavations -- Safety systems required.
39.04.190Purchase contract process -- Other than formal sealed bidding.
39.04.200Small works roster or purchase contracts -- Listing of contracts awarded required.
39.04.210Correctional facilities construction and repair -- Findings.
39.04.220Correctional facilities construction and repair -- Use of general contractor/construction manager method for awarding contracts -- Demonstration projects.
39.04.230Correctional facilities construction and repair -- Alternative contracting method to remain in force until contracts completed.
39.04.240Public works contracts -- Awarding of attorneys' fees.
39.04.250Payments received on account of work performed by subcontractor -- Disputed amounts -- Remedies.
39.04.260Private construction performed pursuant to contract for rental, lease, or purchase by state -- Must comply with prevailing wage law.
39.04.270Electronic data processing and telecommunications systems -- Municipalities -- Acquisition method -- Competitive negotiation -- Findings, intent.
39.04.280Competitive bidding requirements -- Exemptions.
39.04.290Contracts for building engineering systems.
39.04.300Apprenticeship training programs -- Purpose.
39.04.310Apprenticeship training programs -- Definitions.
39.04.320Apprenticeship training programs -- Public works contracts -- Adjustment of specific projects -- Report and collection of agency data -- Apprenticeship utilization advisory committee created.
39.04.330Use of wood products -- Compliance with chapter 39.35D RCW.
39.04.340Apprenticeship and training council outreach effort.
39.04.350Bidder responsibility criteria -- Supplemental criteria.
39.04.360Payment of undisputed claims.
39.04.370Contract requirements -- Off-site prefabricated items -- Submission of information.
39.04.380Preference for resident contractors.
39.04.900Rights may not be waived -- Construction -- 1992 c 223.
39.04.901Application -- 1992 c 223.

Notes:

Buildings, earthquake standards for construction: Chapter 70.86 RCW.

Counties, purchasing departments, competitive bids: RCW 36.32.235 through 36.32.270.

County road equipment and materials: RCW 36.82.100 through 36.82.120.

County roads and bridges -- Plans, approval, bids, etc.: Chapter 36.77 RCW.

Liens for labor, materials, taxes on public works: Chapter 60.28 RCW.

Municipalities -- Energy audits and efficiency: RCW 43.19.691.

Port district contracts: Chapter 53.08 RCW.

Public buildings, provision to be made for aged and individuals with disabilities: Chapter 70.92 RCW.

Second-class city or town, public contracts: RCW 35.23.352.

State highway construction and maintenance: Chapter 47.28 RCW.

Suppression of competitive bidding on public works, penalty: RCW 9.18.120 through 9.18.150.

Traffic control at work sites: RCW 47.36.200.

Workers' compensation law applicable to contracts for public works: RCW 51.12.050, 51.12.070.



39.04.010
Definitions.

The definitions in this section apply throughout this chapter unless the context clearly requires otherwise.

     (1) "Award" means the formal decision by the state or municipality notifying a responsible bidder with the lowest responsive bid of the state's or municipality's acceptance of the bid and intent to enter into a contract with the bidder.

     (2) "Contract" means a contract in writing for the execution of public work for a fixed or determinable amount duly awarded after advertisement and competitive bid, or a contract awarded under the small works roster process in RCW
39.04.155.

     (3) "Municipality" means every city, county, town, port district, district, or other public agency authorized by law to require the execution of public work, except drainage districts, diking districts, diking and drainage improvement districts, drainage improvement districts, diking improvement districts, consolidated diking and drainage improvement districts, consolidated drainage improvement districts, consolidated diking improvement districts, irrigation districts, or other districts authorized by law for the reclamation or development of waste or undeveloped lands.

     (4) "Public work" means all work, construction, alteration, repair, or improvement other than ordinary maintenance, executed at the cost of the state or of any municipality, or which is by law a lien or charge on any property therein. All public works, including maintenance when performed by contract shall comply with chapter 39.12 RCW. "Public work" does not include work, construction, alteration, repair, or improvement performed under contracts entered into under RCW 36.102.060(4) or under development agreements entered into under RCW 36.102.060(7) or leases entered into under RCW 36.102.060(8).

     (5) "Responsible bidder" means a contractor who meets the criteria in RCW 39.04.350.

     (6) "State" means the state of Washington and all departments, supervisors, commissioners, and agencies of the state.

[2008 c 130 § 16; 2007 c 133 § 1; 2000 c 138 § 102; 1997 c 220 § 402 (Referendum Bill No. 48, approved June 17, 1997); 1993 c 174 § 1; 1989 c 363 § 5; 1986 c 282 § 1; 1982 c 98 § 1; 1977 ex.s. c 177 § 1; 1923 c 183 § 1; RRS § 10322-1.]

Notes:

     Purpose -- Part headings not law -- 2000 c 138: See notes following RCW 39.04.155.

     Referendum--Other legislation limited--Legislators' personal intent not indicated--Reimbursements for election--Voters' pamphlet, election requirements -- 1997 c 220: See RCW 36.102.800 through 36.102.803.

     Severability -- 1986 c 282: See RCW 82.18.900.

Municipalities -- Energy audits and efficiency: RCW 43.19.691.




39.04.015
Adjustment to bid price — Conditions.

Notwithstanding the provisions of RCW 39.04.010, a state contracting authority is authorized to negotiate an adjustment to a bid price, based upon agreed changes to the contract plans and specifications, with a low responsive bidder under the following conditions:

     (1) All bids for a state public works project involving buildings and any associated building utilities and appendants exceed the available funds, as certified by the appropriate fiscal officer;

     (2) The apparent low responsive bid does not exceed the available funds by: (a) Five percent on projects valued under one million dollars; (b) the greater of fifty thousand dollars or two and one-half percent for projects valued between one million dollars and five million dollars; or (c) the greater of one hundred twenty-five thousand dollars or one percent for projects valued over five million dollars; and

     (3) The negotiated adjustment will bring the bid price within the amount of available funds.

[1989 c 59 § 1.]




39.04.020
Plans and specifications — Estimates — Publication — Emergencies.

Whenever the state or any municipality shall determine that any public work is necessary to be done, it shall cause plans, specifications, or both thereof and an estimate of the cost of such work to be made and filed in the office of the director, supervisor, commissioner, trustee, board, or agency having by law the authority to require such work to be done. The plans, specifications, and estimates of cost shall be approved by the director, supervisor, commissioner, trustee, board, or agency and the original draft or a certified copy filed in such office before further action is taken.

     If the state or such municipality shall determine that it is necessary or advisable that such work shall be executed by any means or method other than by contract or by a small works roster process, and it shall appear by such estimate that the probable cost of executing such work will exceed the sum of twenty-five thousand dollars, then the state or such municipality shall at least fifteen days before beginning work cause such estimate, together with a description of the work, to be published at least once in a legal newspaper of general circulation published in or as near as possible to that part of the county in which such work is to be done. When any emergency shall require the immediate execution of such public work, upon a finding of the existence of such emergency by the authority having power to direct such public work to be done and duly entered of record, publication of description and estimate may be made within seven days after the commencement of the work.

[1994 c 243 § 1; 1993 c 379 § 111; 1986 c 282 § 2; 1982 c 98 § 4; 1975 1st ex.s. c 230 § 2; 1967 c 70 § 1; 1923 c 183 § 2; RRS § 10322-2. Formerly RCW 39.04.020 and 39.04.030.]

Notes:

     Intent -- Severability -- Effective date -- 1993 c 379: See notes following RCW 28B.10.029.

     Severability -- 1986 c 282: See RCW 82.18.900.




39.04.040
Work to be executed according to plans — Supplemental plans.

Whenever plans and specifications shall have been filed the work to be done shall be executed in accordance with such plans and specifications unless supplemental plans and specifications of the alterations to be made therein shall be made and filed in the office where the original plans and specifications are filed.

     In the event that the probable cost of executing such work in accordance with the supplemental plans and specifications shall be increased or decreased from the estimated cost as shown by the original estimate to an amount in excess of ten percent of such estimate, then a supplemental estimate shall be made of the increased or decreased cost of executing the work in accordance with the supplemental plans and specifications and filed in the office where the original estimate is filed.

[1923 c 183 § 3; RRS § 10322-3.]




39.04.050
Contents of original estimates.

Original estimates shall show in detail the estimated cost of the work; the estimated quantities of each class of work; the estimated unit cost for each class; the estimated total cost for each class; the time limit, allowed for the completion of the work and the estimated dates of commencement and completion.

[1986 c 282 § 3; 1923 c 183 § 4; RRS § 10322-4.]

Notes:

     Severability -- 1986 c 282: See RCW 82.18.900.




39.04.060
Supplemental estimates.

Supplemental estimates shall show the estimated increase or decrease in the total quantities of each class, in the unit cost of each class, in the total cost for each class and in the total cost of the work as shown by the original estimate, together with any change in the time limit and in the estimated dates of commencing and completing the work.

[1923 c 183 § 5; RRS § 10322-5.]




39.04.070
Account and record of cost.

Whenever the state or any municipality shall execute any public work by any means or method other than by contract or small works roster, it shall cause to be kept and preserved a full, true and accurate account and record of the costs of executing such work in accordance with the budgeting, accounting, and reporting system provisions prescribed by law for the state agency or municipality.

[1986 c 282 § 4; 1923 c 183 § 6; RRS § 10322-6.]

Notes:

     Severability -- 1986 c 282: See RCW 82.18.900.

State auditor to prescribe standard form for costs of public works: RCW 43.09.205.




39.04.080
Certified copy to be filed — Engineers' certificate.

A true copy of such account or record, duly certified by the officer or officers having by law authority to direct such work to be done, to be a full, true, and accurate account of the costs of executing such work shall be filed in the office where the original plans and specifications are filed within sixty days after the completion of the work.

     The engineer or other officer having charge of the execution of such work shall execute a certificate which shall be attached to and filed with such certified copy, certifying that such work was executed in accordance with the plans and specifications on file and the times of commencement and completion of such work. If the work is not in accordance with such plans and specifications he or she shall set forth the manner and extent of the variance therefrom.

[2011 c 336 § 802; 1923 c 183 § 7; RRS § 10322-7.]




39.04.100
Records open to public inspection — Certified copies.

All plans, specifications, estimates, and copies of accounts or records and all certificates attached thereto shall, when filed, become public records and shall at all reasonable times be subject to public inspection.

     Certified copies of any estimate, account or record shall be furnished by the officer having the custody thereof to any person on demand and the payment of the legal fees for making and certifying the same.

[1923 c 183 § 9; RRS § 10322-9.]




39.04.105
Competitive bidding — Written protests — Notice of contract execution.

When a municipality receives a written protest from a bidder for a public works project which is the subject of competitive bids, the municipality shall not execute a contract for the project with anyone other than the protesting bidder without first providing at least two full business days' written notice of the municipality's intent to execute a contract for the project; provided that the protesting bidder submits notice in writing of its protest no later than two full business days following bid opening. Intermediate Saturdays, Sundays, and legal holidays are not counted.

[2003 c 300 § 1.]




39.04.107
Competitive bidding — Bidder claiming error.

A low bidder on a public works project who claims error and fails to enter into a contract is prohibited from bidding on the same project if a second or subsequent call for bids is made for the project.

[2003 c 300 § 2.]




39.04.110
Penalty for false entries.

Any director, supervisor, officer or employee of the state and any commissioner, trustee, supervisor, officer or employee of any municipality who shall knowingly make any false entry in any account or record required by this chapter or who shall knowingly certify to any false statement in any certificate required by this chapter, shall be guilty of a misdemeanor.

[1923 c 183 § 10; RRS § 10322-10.]

Notes:

Falsifying accounts: RCW 42.20.070.

Misconduct of public officers: Chapter 42.20 RCW.




39.04.120
Change orders due to environmental protection requirements — Costs — Dispute resolution.

If the successful bidder must undertake additional work for public construction projects issued by the state of Washington, its authorities or agencies, or a political subdivision of the state due to the enactment of new environmental protection requirements or the amendment of existing environmental protection statutes, ordinances, or rules occurring after the submission of the successful bid, the awarding agency shall issue a change order setting forth the additional work that must be undertaken, which shall not invalidate the contract. The cost of such a change order to the awarding agency shall be determined in accordance with the provisions of the contract for change orders or, if no such provision is set forth in the contract, then the cost to the awarding agency shall be the contractor's costs for wages, labor costs other than wages, wage taxes, materials, equipment rentals, insurance, and subcontracts attributable to the additional activity plus a reasonable sum for overhead and profit. However, the additional costs to undertake work not specified in the contract documents shall not be approved unless written authorization is given the successful bidder prior to his or her undertaking such additional activity. In the event of a dispute between the awarding agency and the contractor, dispute resolution procedures may be commenced under the applicable terms of the construction contract, or, if the contract contains no such provision for dispute resolution, the then obtaining rules of the American arbitration association.

[2011 c 336 § 803; 1998 c 196 § 1; 1973 1st ex.s. c 62 § 1.]

Notes:

     Severability -- 1973 1st ex.s. c 62: "If any provision or part of this 1973 act shall be judged to be invalid or unconstitutional, such adjudication shall not affect the validity of any provision or part of this 1973 act not adjudged invalid or unconstitutional." [1973 1st ex.s. c 62 § 4.]

Delay due to litigation, change orders, costs, arbitration, termination: RCW 60.28.080.




39.04.130
Application of RCW 39.04.120.

RCW 39.04.120 shall take effect in ninety days but shall not apply to any contract awarded pursuant to an invitation for bids issued on or before the date it takes effect, or to any persons or bonds in respect of any such contract.

[1973 1st ex.s. c 62 § 2.]

Notes:

     Severability -- 1973 1st ex.s. c 62: See note following RCW 39.04.120.




39.04.133
State capital improvement or construction projects — Product standards.

(1) The state's preferences for the purchase and use of recycled content products shall be included as a factor in the design and development of state capital improvement projects.

     (2) If a construction project receives state public funding, the product standards, as provided in RCW
43.19A.020, shall apply to the materials used in the project, whenever the administering agency and project owner determine that such products would be cost-effective and are readily available.

     (3) This section does not apply to contracts entered into by a municipality.

[2002 c 299 § 2; 1996 c 198 § 5.]




39.04.135
Demolition projects — Recycling or reuse of materials.

Material from demolition projects shall be recycled or reused whenever practicable.

[1996 c 198 § 6.]




39.04.155
Small works roster contract procedures — Limited public works process — Definition.

(1) This section provides uniform small works roster provisions to award contracts for construction, building, renovation, remodeling, alteration, repair, or improvement of real property that may be used by state agencies and by any local government that is expressly authorized to use these provisions. These provisions may be used in lieu of other procedures to award contracts for such work with an estimated cost of three hundred thousand dollars or less. The small works roster process includes the limited public works process authorized under subsection (3) of this section and any local government authorized to award contracts using the small works roster process under this section may award contracts using the limited public works process under subsection (3) of this section.

     (2)(a) A state agency or authorized local government may create a single general small works roster, or may create a small works roster for different specialties or categories of anticipated work. Where applicable, small works rosters may make distinctions between contractors based upon different geographic areas served by the contractor. The small works roster or rosters shall consist of all responsible contractors who have requested to be on the list, and where required by law are properly licensed or registered to perform such work in this state. A state agency or local government establishing a small works roster or rosters may require eligible contractors desiring to be placed on a roster or rosters to keep current records of any applicable licenses, certifications, registrations, bonding, insurance, or other appropriate matters on file with the state agency or local government as a condition of being placed on a roster or rosters. At least once a year, the state agency or local government shall publish in a newspaper of general circulation within the jurisdiction a notice of the existence of the roster or rosters and solicit the names of contractors for such roster or rosters. In addition, responsible contractors shall be added to an appropriate roster or rosters at any time they submit a written request and necessary records. Master contracts may be required to be signed that become effective when a specific award is made using a small works roster.

     (b) A state agency establishing a small works roster or rosters shall adopt rules implementing this subsection. A local government establishing a small works roster or rosters shall adopt an ordinance or resolution implementing this subsection. Procedures included in rules adopted by the *department of general administration in implementing this subsection must be included in any rules providing for a small works roster or rosters that is adopted by another state agency, if the authority for that state agency to engage in these activities has been delegated to it by the *department of general administration under chapter
43.19 RCW. An interlocal contract or agreement between two or more state agencies or local governments establishing a small works roster or rosters to be used by the parties to the agreement or contract must clearly identify the lead entity that is responsible for implementing the provisions of this subsection.

     (c) Procedures shall be established for securing telephone, written, or electronic quotations from contractors on the appropriate small works roster to assure that a competitive price is established and to award contracts to the lowest responsible bidder, as defined in RCW 39.04.010. Invitations for quotations shall include an estimate of the scope and nature of the work to be performed as well as materials and equipment to be furnished. However, detailed plans and specifications need not be included in the invitation. This subsection does not eliminate other requirements for architectural or engineering approvals as to quality and compliance with building codes. Quotations may be invited from all appropriate contractors on the appropriate small works roster. As an alternative, quotations may be invited from at least five contractors on the appropriate small works roster who have indicated the capability of performing the kind of work being contracted, in a manner that will equitably distribute the opportunity among the contractors on the appropriate roster. However, if the estimated cost of the work is from one hundred fifty thousand dollars to three hundred thousand dollars, a state agency or local government that chooses to solicit bids from less than all the appropriate contractors on the appropriate small works roster must also notify the remaining contractors on the appropriate small works roster that quotations on the work are being sought. The government has the sole option of determining whether this notice to the remaining contractors is made by: (i) Publishing notice in a legal newspaper in general circulation in the area where the work is to be done; (ii) mailing a notice to these contractors; or (iii) sending a notice to these contractors by facsimile or other electronic means. For purposes of this subsection (2)(c), "equitably distribute" means that a state agency or local government soliciting bids may not favor certain contractors on the appropriate small works roster over other contractors on the appropriate small works roster who perform similar services.

     (d) A contract awarded from a small works roster under this section need not be advertised.

     (e) Immediately after an award is made, the bid quotations obtained shall be recorded, open to public inspection, and available by telephone inquiry.

     (3) In lieu of awarding contracts under subsection (2) of this section, a state agency or authorized local government may award a contract for work, construction, alteration, repair, or improvement projects estimated to cost less than thirty-five thousand dollars using the limited public works process provided under this subsection. Public works projects awarded under this subsection are exempt from the other requirements of the small works roster process provided under subsection (2) of this section and are exempt from the requirement that contracts be awarded after advertisement as provided under RCW 39.04.010.

     For limited public works projects, a state agency or authorized local government shall solicit electronic or written quotations from a minimum of three contractors from the appropriate small works roster and shall award the contract to the lowest responsible bidder as defined under RCW 39.04.010. After an award is made, the quotations shall be open to public inspection and available by electronic request. A state agency or authorized local government shall attempt to distribute opportunities for limited public works projects equitably among contractors willing to perform in the geographic area of the work. A state agency or authorized local government shall maintain a list of the contractors contacted and the contracts awarded during the previous twenty-four months under the limited public works process, including the name of the contractor, the contractor's registration number, the amount of the contract, a brief description of the type of work performed, and the date the contract was awarded. For limited public works projects, a state agency or authorized local government may waive the payment and performance bond requirements of chapter 39.08 RCW and the retainage requirements of chapter 60.28 RCW, thereby assuming the liability for the contractor's nonpayment of laborers, mechanics, subcontractors, materialpersons, suppliers, and taxes imposed under Title 82 RCW that may be due from the contractor for the limited public works project, however the state agency or authorized local government shall have the right of recovery against the contractor for any payments made on the contractor's behalf.

     (4) The breaking of any project into units or accomplishing any projects by phases is prohibited if it is done for the purpose of avoiding the maximum dollar amount of a contract that may be let using the small works roster process or limited public works process.

     (5)(a) A state agency or authorized local government may use the limited public works process of subsection (3) of this section to solicit and award small works roster contracts to small businesses that are registered contractors with gross revenues under one million dollars annually as reported on their federal tax return.

     (b) A state agency or authorized local government may adopt additional procedures to encourage small businesses that are registered contractors with gross revenues under two hundred fifty thousand dollars annually as reported on their federal tax returns to submit quotations or bids on small works roster contracts.

     (6) As used in this section, "state agency" means the *department of general administration, the state parks and recreation commission, the department of natural resources, the department of fish and wildlife, the department of transportation, any institution of higher education as defined under RCW 28B.10.016, and any other state agency delegated authority by the *department of general administration to engage in construction, building, renovation, remodeling, alteration, improvement, or repair activities.

[2009 c 74 § 1; 2008 c 130 § 17. Prior: 2007 c 218 § 87; 2007 c 210 § 1; 2007 c 133 § 4; 2001 c 284 § 1; 2000 c 138 § 101; 1998 c 278 § 12; 1993 c 198 § 1; 1991 c 363 § 109.]

Notes:

     *Reviser's note: The "department of general administration" was renamed the "department of enterprise services" by 2011 1st sp.s. c 43 § 107.

     Intent -- Finding -- 2007 c 218: See note following RCW 1.08.130.

     Purpose -- 2000 c 138: "The purpose of this act is to establish a common small works roster procedure that state agencies and local governments may use to award contracts for construction, building, renovation, remodeling, alteration, repair, or improvement of real property." [2000 c 138 § 1.]

     Part headings not law -- 2000 c 138: "Part headings used in this act are not any part of the law." [2000 c 138 § 302.]

     Purpose -- Captions not law -- 1991 c 363: See notes following RCW 2.32.180.

Competitive bids -- Contract procedure: RCW 36.32.250.




39.04.156
Small works roster manual — Notification to local governments.

The *department of community, trade, and economic development, in cooperation with the municipal research and services center, shall prepare a small works roster manual and periodically notify the different types of local government authorized to use a small works roster process about this authority.

[2000 c 138 § 104.]

Notes:

     *Reviser's note: The "department of community, trade, and economic development" was renamed the "department of commerce" by 2009 c 565.

     Purpose -- Part headings not law -- 2000 c 138: See notes following RCW 39.04.155.




39.04.160
Contracts subject to requirements established under office of minority and women's business enterprises.

All contracts entered into under this chapter by the state on or after September 1, 1983, are subject to the requirements established under chapter 39.19 RCW.

[1983 c 120 § 11.]

Notes:

     Effective date -- Applicability -- Severability -- Conflict with federal requirements -- 1983 c 120: See RCW 39.19.910, 39.19.920.




39.04.162
Awards of procurement contracts to veteran-owned businesses.

All procurement contracts entered into under this chapter on or after June 10, 2010, are subject to the requirements established under RCW 43.60A.200.

[2010 c 5 § 8.]

Notes:

     Purpose -- Construction -- 2010 c 5: See notes following RCW 43.60A.010.




39.04.170
Application of chapter to performance-based contracts for energy equipment.

This chapter shall not apply to performance-based contracts, as defined in *RCW 39.35A.020(3), that are negotiated under chapter 39.35A RCW.

[1985 c 169 § 5.]

Notes:

     *Reviser's note: RCW 39.35A.020 was amended by 2001 c 214 § 18, changing subsection (3) to subsection (4).




39.04.175
Application of chapter to certain agreements relating to water pollution control, solid waste handling facilities.

This chapter does not apply to the selection of persons or entities to construct or develop water pollution control facilities or to provide water pollution control services under RCW 70.150.040 or the selection of persons or entities to construct or develop solid waste handling facilities or to provide solid waste handling services under RCW 35.21.156 or under RCW 36.58.090.

[1989 c 399 § 11; 1986 c 244 § 13.]

Notes:

     Severability -- 1986 c 244: See RCW 70.150.905.




39.04.180
Trench excavations — Safety systems required.

On public works projects in which trench excavation will exceed a depth of four feet, any contract therefor shall require adequate safety systems for the trench excavation that meet the requirements of the Washington industrial safety and health act, chapter 49.17 RCW. This requirement shall be included in the cost estimates and bidding forms as a separate item. The costs of trench safety systems shall not be considered as incidental to any other contract item and any attempt to include the trench safety systems as an incidental cost is prohibited.

[1988 c 180 § 1.]




39.04.190
Purchase contract process — Other than formal sealed bidding.

(1) This section provides a uniform process to award contracts for the purchase of any materials, equipment, supplies, or services by those municipalities that are authorized to use this process in lieu of the requirements for formal sealed bidding. The state statutes governing a specific type of municipality shall establish the maximum dollar thresholds of the contracts that can be awarded under this process, and may include other matters concerning the awarding of contracts for purchases, for the municipality.

     (2) At least twice per year, the municipality shall publish in a newspaper of general circulation within the jurisdiction a notice of the existence of vendor lists and solicit the names of vendors for the lists. Municipalities shall by resolution establish a procedure for securing telephone or written quotations, or both, from at least three different vendors whenever possible to assure that a competitive price is established and for awarding the contracts for the purchase of any materials, equipment, supplies, or services to the lowest responsible bidder as defined in *RCW
43.19.1911. Immediately after the award is made, the bid quotations obtained shall be recorded, open to public inspection, and shall be available by telephone inquiry. A contract awarded pursuant to this section need not be advertised.

[1993 c 198 § 2; 1991 c 363 § 110.]

Notes:

     *Reviser's note: RCW 43.19.1911 was repealed by 2012 c 224 § 29, effective January 1, 2013.

     Purpose -- Captions not law -- 1991 c 363: See notes following RCW 2.32.180.




39.04.200
Small works roster or purchase contracts — Listing of contracts awarded required.

Any local government using the uniform process established in RCW 39.04.190 to award contracts for purchases must post a list of the contracts awarded under that process at least once every two months. Any state agency or local government using the small works roster process established in RCW 39.04.155 to award contracts for construction, building, renovation, remodeling, alteration, repair, or improvement of real property must make available a list of the contracts awarded under that process at least once every year. The list shall contain the name of the contractor or vendor awarded the contract, the amount of the contract, a brief description of the type of work performed or items purchased under the contract, and the date it was awarded. The list shall also state the location where the bid quotations for these contracts are available for public inspection.

[2000 c 138 § 103; 1993 c 198 § 3; 1991 c 363 § 111.]

Notes:

     Purpose -- Part headings not law -- 2000 c 138: See notes following RCW 39.04.155.

     Purpose -- Captions not law -- 1991 c 363: See notes following RCW 2.32.180.




39.04.210
Correctional facilities construction and repair — Findings.

The legislature recognizes that fair and open competition is a basic tenet of public works procurement, that such competition reduces the appearance of and opportunity for favoritism and inspires public confidence that contracts are awarded equitably and economically, and that effective monitoring mechanisms are important means of curbing any improprieties and establishing public confidence in the process by which contractual services are procured. The legislature finds that there will continue to exist a need for additional correctional facilities due to the inadequate capacity of existing correctional facilities to accommodate the predicted growth of offender populations and that it is necessary to provide public works contract options for the effective construction and repair of additional department of corrections facilities.

[1994 c 80 § 1; 1991 c 130 § 1.]

Notes:

     Severability -- 1994 c 80: "If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected." [1994 c 80 § 4.]

     Effective date -- 1994 c 80: "This act is necessary for the immediate preservation of the public peace, health, or safety, or support of the state government and its existing public institutions, and shall take effect immediately [March 23, 1994]." [1994 c 80 § 5.]

     Severability -- 1991 c 130: "If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected." [1991 c 130 § 4.]




39.04.220
Correctional facilities construction and repair — Use of general contractor/construction manager method for awarding contracts — Demonstration projects.

(1) In addition to currently authorized methods of public works contracting, and in lieu of the requirements of RCW 39.04.010 and 39.04.020 through39.04.060 , capital projects funded for over ten million dollars authorized by the legislature for the department of corrections to construct or repair facilities may be accomplished under contract using the general contractor/construction manager method described in this section. In addition, the general contractor/construction manager method may be used for up to two demonstration projects under ten million dollars for the department of corrections. Each demonstration project shall aggregate capital projects authorized by the legislature at a single site to total no less than three million dollars with the approval of the office of financial management. The *department of general administration shall present its plan for the aggregation of projects under each demonstration project to the oversight advisory committee established under subsection (2) of this section prior to soliciting proposals for general contractor/construction manager services for the demonstration project.

     (2) For the purposes of this section, "general contractor/construction manager" means a firm with which the *department of general administration has selected and negotiated a maximum allowable construction cost to be guaranteed by the firm, after competitive selection through a formal advertisement, and competitive bids to provide services during the design phase that may include life-cycle cost design considerations, value engineering, scheduling, cost estimating, constructability, alternative construction options for cost savings, and sequencing of work, and to act as the construction manager and general contractor during the construction phase. The *department of general administration shall establish an independent oversight advisory committee with representatives of interest groups with an interest in this subject area, the department of corrections, and the private sector, to review selection and contracting procedures and contracting documents. The oversight advisory committee shall discuss and review the progress of the demonstration projects. The general contractor/construction manager method is limited to projects authorized on or before July 1, 1997.

     (3) Contracts for the services of a general contractor/construction manager awarded under the authority of this section shall be awarded through a competitive process requiring the public solicitation of proposals for general contractor/construction manager services. Minority and women enterprise total project goals shall be specified in the bid instructions to the general contractor/construction manager finalists. The *director of general administration is authorized to include an incentive clause in any contract awarded under this section for savings of either time or cost or both from that originally negotiated. No incentives granted shall exceed five percent of the maximum allowable construction cost. The *director of general administration or his or her designee shall establish a committee to evaluate the proposals considering such factors as: Ability of professional personnel; past performance in negotiated and complex projects; ability to meet time and budget requirements; location; recent, current, and projected work loads of the firm; and the concept of their proposal. After the committee has selected the most qualified finalists, these finalists shall submit sealed bids for the percent fee, which is the percentage amount to be earned by the general contractor/construction manager as overhead and profit, on the estimated maximum allowable construction cost and the fixed amount for the detailed specified general conditions work. The maximum allowable construction cost may be negotiated between the *department of general administration and the selected firm after the scope of the project is adequately determined to establish a guaranteed contract cost for which the general contractor/construction manager will provide a performance and payment bond. The guaranteed contract cost includes the fixed amount for the detailed specified general conditions work, the negotiated maximum allowable construction cost, the percent fee on the negotiated maximum allowable construction cost, and sales tax. If the *department of general administration is unable to negotiate a satisfactory maximum allowable construction cost with the firm selected that the *department of general administration determines to be fair, reasonable, and within the available funds, negotiations with that firm shall be formally terminated and the *department of general administration shall negotiate with the next low bidder and continue until an agreement is reached or the process is terminated. If the maximum allowable construction cost varies more than fifteen percent from the bid estimated maximum allowable construction cost due to requested and approved changes in the scope by the state, the percent fee shall be renegotiated. All subcontract work shall be competitively bid with public bid openings. Specific contract requirements for women and minority enterprise participation shall be specified in each subcontract bid package that exceeds ten percent of the department's estimated project cost. All subcontractors who bid work over two hundred thousand dollars shall post a bid bond and the awarded subcontractor shall provide a performance and payment bond for their contract amount if required by the general contractor/construction manager. A low bidder who claims error and fails to enter into a contract is prohibited from bidding on the same project if a second or subsequent call for bids is made for the project. Bidding on subcontract work by the general contractor/construction manager or its subsidiaries is prohibited. The general contractor/construction manager may negotiate with the low-responsive bidder only in accordance with RCW 39.04.015 or, if unsuccessful in such negotiations, rebid.

     (4) If the project is completed for less than the agreed upon maximum allowable construction cost, any savings not otherwise negotiated as part of an incentive clause shall accrue to the state. If the project is completed for more than the agreed upon maximum allowable construction cost, excepting increases due to any contract change orders approved by the state, the additional cost shall be the responsibility of the general contractor/construction manager.

     (5) The powers and authority conferred by this section shall be construed as in addition and supplemental to powers or authority conferred by any other law, and nothing contained in this section may be construed as limiting any other powers or authority of the *department of general administration. However, all actions taken pursuant to the powers and authority granted to the director or the *department of general administration under this section may only be taken with the concurrence of the department of corrections.

[1996 c 18 § 5; 1994 c 80 § 2; 1991 c 130 § 2.]

Notes:

     *Reviser's note: The "department of general administration" and the "director of general administration" were renamed the "department of enterprise services" and the "director of enterprise services" by 2011 1st sp.s. c 43.

     Severability -- Effective date -- 1994 c 80: See notes following RCW 39.04.210.

     Severability -- 1991 c 130: See note following RCW 39.04.210.




39.04.230
Correctional facilities construction and repair — Alternative contracting method to remain in force until contracts completed.

Methods of public works contracting authorized by RCW 39.04.210 and 39.04.220 shall remain in full force and effect until completion of projects authorized on or before July 1, 1997.

[1994 c 80 § 3; 1991 c 130 § 3.]

Notes:

     Severability -- Effective date -- 1994 c 80: See notes following RCW 39.04.210.

     Severability -- 1991 c 130: See note following RCW 39.04.210.




39.04.240
Public works contracts — Awarding of attorneys' fees.

(1) The provisions of RCW 4.84.250 through 4.84.280 shall apply to an action arising out of a public works contract in which the state or a municipality, or other public body that contracts for public works, is a party, except that: (a) The maximum dollar limitation in RCW 4.84.250 shall not apply; and (b) in applying RCW 4.84.280, the time period for serving offers of settlement on the adverse party shall be the period not less than thirty days and not more than one hundred twenty days after completion of the service and filing of the summons and complaint.

     (2) The rights provided for under this section may not be waived by the parties to a public works contract that is entered into on or after June 11, 1992, and a provision in such a contract that provides for waiver of these rights is void as against public policy. However, this subsection shall not be construed as prohibiting the parties from mutually agreeing to a clause in a public works contract that requires submission of a dispute arising under the contract to arbitration.

[1999 c 107 § 1; 1992 c 171 § 1.]




39.04.250
Payments received on account of work performed by subcontractor — Disputed amounts — Remedies.

(1) When payment is received by a contractor or subcontractor for work performed on a public work, the contractor or subcontractor shall pay to any subcontractor not later than ten days after the receipt of the payment, amounts allowed the contractor on account of the work performed by the subcontractor, to the extent of each subcontractor's interest therein.

     (2) In the event of a good faith dispute over all or any portion of the amount due on a payment from the state or a municipality to the prime contractor, or from the prime contractor or subcontractor to a subcontractor, then the state or the municipality, or the prime contractor or subcontractor, may withhold no more than one hundred fifty percent of the disputed amount. Those not a party to a dispute are entitled to full and prompt payment of their portion of a draw, progress payment, final payment, or released retainage.

     (3) In addition to all other remedies, any person from whom funds have been withheld in violation of this section shall be entitled to receive from the person wrongfully withholding the funds, for every month and portion thereof that payment including retainage is not made, interest at the highest rate allowed under RCW
19.52.025. In any action for the collection of funds wrongfully withheld, the prevailing party shall be entitled to costs of suit and reasonable attorneys' fees.

[1992 c 223 § 5.]

Notes:

     Effective date -- 1992 c 223: See note following RCW 39.76.011.

     Waiver of rights, construction -- Application -- 1992 c 223: See RCW 39.04.900 and 39.04.901.




39.04.260
Private construction performed pursuant to contract for rental, lease, or purchase by state — Must comply with prevailing wage law.

Any work, construction, alteration, repair, or improvement, other than ordinary maintenance, that the state or a municipality causes to be performed by a private party through a contract to rent, lease, or purchase at least fifty percent of the project by one or more state agencies or municipalities shall comply with chapter 39.12 RCW.

[1993 c 110 § 1.]

Notes:

     Application -- 1993 c 110: "Section 1 of this act shall not apply to any project for which a call for competitive bids was made before July 25, 1993." [1993 c 110 § 2.]




39.04.270
Electronic data processing and telecommunications systems — Municipalities — Acquisition method — Competitive negotiation — Findings, intent.

(1) The legislature finds that the unique aspects of electronic data processing and telecommunications systems and the importance of these systems for effective administration warrant separate acquisition authority for electronic data processing and telecommunication systems. It is the intent of the legislature that municipalities utilize an acquisition method for electronic data processing and telecommunication systems that is both competitive and compatible with the needs of the municipalities.

     (2) A municipality may acquire electronic data processing or telecommunication equipment, software, or services through competitive negotiation rather than through competitive bidding.

     (3) "Competitive negotiation," for the purposes of this section, shall include, as a minimum, the following requirements:

     (a) A request for proposal shall be prepared and submitted to an adequate number of qualified sources, as determined by the municipality in its discretion, to permit reasonable competition consistent with the requirements of the procurement. Notice of the request for the proposal must be published in a newspaper of general circulation in the municipality at least thirteen days before the last date upon which proposals will be received. The request for proposal shall identify significant evaluation factors, including price, and their relative importance.

     (b) The municipality shall provide reasonable procedures for technical evaluation of the proposals received, identification of qualified sources, and selection for awarding the contract.

     (c) The award shall be made to the qualified bidder whose proposal is most advantageous to the municipality with price and other factors considered. The municipality may reject any and all proposals for good cause and request new proposals.

[1996 c 257 § 1.]




39.04.280
Competitive bidding requirements — Exemptions.

This section provides uniform exemptions to competitive bidding requirements utilized by municipalities when awarding contracts for public works and contracts for purchases. The statutes governing a specific type of municipality may also include other exemptions from competitive bidding requirements. The purpose of this section is to supplement and not to limit the current powers of any municipality to provide exemptions from competitive bidding requirements.

     (1) Competitive bidding requirements may be waived by the governing body of the municipality for:

     (a) Purchases that are clearly and legitimately limited to a single source of supply;

     (b) Purchases involving special facilities or market conditions;

     (c) Purchases in the event of an emergency;

     (d) Purchases of insurance or bonds; and

     (e) Public works in the event of an emergency.

     (2)(a) The waiver of competitive bidding requirements under subsection (1) of this section may be by resolution or by the terms of written policies adopted by the municipality, at the option of the governing body of the municipality. If the governing body elects to waive competitive bidding requirements by the terms of written policies adopted by the municipality, immediately after the award of any contract, the contract and the factual basis for the exception must be recorded and open to public inspection.

     If a resolution is adopted by a governing body to waive competitive bidding requirements under (b) of this subsection, the resolution must recite the factual basis for the exception. This subsection (2)(a) does not apply in the event of an emergency.

     (b) If an emergency exists, the person or persons designated by the governing body of the municipality to act in the event of an emergency may declare an emergency situation exists, waive competitive bidding requirements, and award all necessary contracts on behalf of the municipality to address the emergency situation. If a contract is awarded without competitive bidding due to an emergency, a written finding of the existence of an emergency must be made by the governing body or its designee and duly entered of record no later than two weeks following the award of the contract.

     (3) For purposes of this section "emergency" means unforeseen circumstances beyond the control of the municipality that either: (a) Present a real, immediate threat to the proper performance of essential functions; or (b) will likely result in material loss or damage to property, bodily injury, or loss of life if immediate action is not taken.

[1998 c 278 § 1.]




39.04.290
Contracts for building engineering systems.

(1) A state agency or local government may award contracts of any value for the design, fabrication, and installation of building engineering systems by: (a) Using a competitive bidding process or request for proposals process where bidders are required to provide final specifications and a bid price for the design, fabrication, and installation of building engineering systems, with the final specifications being approved by an appropriate design, engineering, and/or public regulatory body; or (b) using a competitive bidding process where bidders are required to provide final specifications for the final design, fabrication, and installation of building engineering systems as part of a larger project with the final specifications for the building engineering systems portion of the project being approved by an appropriate design, engineering, and/or public regulatory body. The provisions of chapter 39.80 RCW do not apply to the design of building engineering systems that are included as part of a contract described under this section.

     (2) The definitions in this subsection apply throughout this section unless the context clearly requires otherwise.

     (a) "Building engineering systems" means those systems where contracts for the systems customarily have been awarded with a requirement that the contractor provide final approved specifications, including fire alarm systems, building sprinkler systems, pneumatic tube systems, extensions of heating, ventilation, or air conditioning control systems, chlorination and chemical feed systems, emergency generator systems, building signage systems, pile foundations, and curtain wall systems.

     (b) "Local government" means any county, city, town, school district, or other special district, municipal corporation, or quasi-municipal corporation.

     (c) "State agency" means the *department of general administration, the state parks and recreation commission, the department of fish and wildlife, the department of natural resources, any institution of higher education as defined under RCW 28B.10.016, and any other state agency delegated authority by the *department of general administration to engage in building, renovation, remodeling, alteration, improvement, or repair activities.

[2001 c 34 § 1.]

Notes:

     *Reviser's note: The "department of general administration" was renamed the "department of enterprise services" by 2011 1st sp.s. c 43 § 107.




39.04.300
Apprenticeship training programs — Purpose.

A well-trained construction trades workforce is critical to the ability of the state of Washington to construct public works. Studies of the state's workforce highlight population trends that, without a concerted effort to offset them, will lead to an inadequate supply of skilled workers in the construction industry. State government regularly constructs public works. The efficient and economical construction of public works projects will be harmed if there is not an ample supply of trained construction workers. Apprenticeship training programs are particularly effective in providing training and experience to individuals seeking to enter or advance in the workforce. By providing for apprenticeship utilization on public works projects, state government can create opportunities for training and experience that will help assure that a trained workforce will be available, including returning veterans, in sufficient numbers in the future for the construction of public works. Furthermore, the state of Washington hereby establishes its intent to assist returning veterans through programs such as the "helmets to hardhats" program, which is administered by the center for military recruitment, assessment, and veterans employment. It is the state's intent to assist returning veterans with apprenticeship placement career opportunities, in order to expedite the transition from military service to the construction workforce.

[2006 c 321 § 1; 2005 c 3 § 1.]

Notes:

     Effective date -- 2005 c 3: "This act is necessary for the immediate preservation of the public peace, health, or safety, or support of the state government and its existing public institutions, and takes effect immediately [February 24, 2005]." [2005 c 3 § 5.]




39.04.310
Apprenticeship training programs — Definitions.

The definitions in this section apply throughout this section and RCW 39.04.300 and 39.04.320 unless the context clearly requires otherwise.

     (1) "Apprentice" means an apprentice enrolled in a state-approved apprenticeship training program.

     (2) "Apprentice utilization requirement" means the requirement that the appropriate percentage of labor hours be performed by apprentices.

     (3) "Labor hours" means the total hours of workers receiving an hourly wage who are directly employed on the site of the public works project. "Labor hours" includes hours performed by workers employed by the contractor and all subcontractors working on the project. "Labor hours" does not include hours worked by foremen, superintendents, owners, and workers who are not subject to prevailing wage requirements.

     (4) "School district" has the same meaning as in RCW 28A.315.025.

     (5) "State-approved apprenticeship training program" means an apprenticeship training program approved by the Washington state apprenticeship council.

[2007 c 437 § 1; 2005 c 3 § 2.]

Notes:

     Effective date -- 2005 c 3: See note following RCW 39.04.300.




39.04.320
Apprenticeship training programs — Public works contracts — Adjustment of specific projects — Report and collection of agency data — Apprenticeship utilization advisory committee created.

(1)(a) Except as provided in (b) through (d) of this subsection, from January 1, 2005, and thereafter, for all public works estimated to cost one million dollars or more, all specifications shall require that no less than fifteen percent of the labor hours be performed by apprentices.

     (b)(i) This section does not apply to contracts advertised for bid before July 1, 2007, for any public works by the department of transportation.

     (ii) For contracts advertised for bid on or after July 1, 2007, and before July 1, 2008, for all public works by the department of transportation estimated to cost five million dollars or more, all specifications shall require that no less than ten percent of the labor hours be performed by apprentices.

     (iii) For contracts advertised for bid on or after July 1, 2008, and before July 1, 2009, for all public works by the department of transportation estimated to cost three million dollars or more, all specifications shall require that no less than twelve percent of the labor hours be performed by apprentices.

     (iv) For contracts advertised for bid on or after July 1, 2009, for all public works by the department of transportation estimated to cost two million dollars or more, all specifications shall require that no less than fifteen percent of the labor hours be performed by apprentices.

     (c)(i) This section does not apply to contracts advertised for bid before January 1, 2008, for any public works by a school district, or to any project funded in whole or in part by bond issues approved before July 1, 2007.

     (ii) For contracts advertised for bid on or after January 1, 2008, for all public works by a school district estimated to cost three million dollars or more, all specifications shall require that no less than ten percent of the labor hours be performed by apprentices.

     (iii) For contracts advertised for bid on or after January 1, 2009, for all public works by a school district estimated to cost two million dollars or more, all specifications shall require that no less than twelve percent of the labor hours be performed by apprentices.

     (iv) For contracts advertised for bid on or after January 1, 2010, for all public works by a school district estimated to cost one million dollars or more, all specifications shall require that no less than fifteen percent of the labor hours be performed by apprentices.

     (d)(i) For contracts advertised for bid on or after January 1, 2010, for all public works by a four-year institution of higher education estimated to cost three million dollars or more, all specifications must require that no less than ten percent of the labor hours be performed by apprentices.

     (ii) For contracts advertised for bid on or after January 1, 2011, for all public works by a four-year institution of higher education estimated to cost two million dollars or more, all specifications must require that no less than twelve percent of the labor hours be performed by apprentices.

     (iii) For contracts advertised for bid on or after January 1, 2012, for all public works by a four-year institution of higher education estimated to cost one million dollars or more, all specifications must require that no less than fifteen percent of the labor hours be performed by apprentices.

     (2) Awarding entities may adjust the requirements of this section for a specific project for the following reasons:

     (a) The demonstrated lack of availability of apprentices in specific geographic areas;

     (b) A disproportionately high ratio of material costs to labor hours, which does not make feasible the required minimum levels of apprentice participation;

     (c) Participating contractors have demonstrated a good faith effort to comply with the requirements of RCW
39.04.300 and 39.04.310 and this section; or

     (d) Other criteria the awarding entity deems appropriate, which are subject to review by the office of the governor.

     (3) The secretary of the department of transportation shall adjust the requirements of this section for a specific project for the following reasons:

     (a) The demonstrated lack of availability of apprentices in specific geographic areas; or

     (b) A disproportionately high ratio of material costs to labor hours, which does not make feasible the required minimum levels of apprentice participation.

     (4) This section applies to public works contracts awarded by the state, to public works contracts awarded by school districts, and to public works contracts awarded by state four-year institutions of higher education. However, this section does not apply to contracts awarded by state agencies headed by a separately elected public official.

     (5)(a) The *department of general administration must provide information and technical assistance to affected agencies and collect the following data from affected agencies for each project covered by this section:

     (i) The name of each apprentice and apprentice registration number;

     (ii) The name of each project;

     (iii) The dollar value of each project;

     (iv) The date of the contractor's notice to proceed;

     (v) The number of apprentices and labor hours worked by them, categorized by trade or craft;

     (vi) The number of journey level workers and labor hours worked by them, categorized by trade or craft; and

     (vii) The number, type, and rationale for the exceptions granted under subsection (2) of this section.

     (b) The department of labor and industries shall assist the *department of general administration in providing information and technical assistance.

     (6) The secretary of transportation shall establish an apprenticeship utilization advisory committee, which shall include statewide geographic representation and consist of equal numbers of representatives of contractors and labor. The committee must include at least one member representing contractor businesses with less than thirty-five employees. The advisory committee shall meet regularly with the secretary of transportation to discuss implementation of this section by the department of transportation, including development of the process to be used to adjust the requirements of this section for a specific project. The committee shall provide a report to the legislature by January 1, 2008, on the effects of the apprentice labor requirement on transportation projects and on the availability of apprentice labor and programs statewide.

     (7) At the request of the senate labor, commerce, research and development committee, the house of representatives commerce and labor committee, or their successor committees, and the governor, the *department of general administration and the department of labor and industries shall compile and summarize the agency data and provide a joint report to both committees. The report shall include recommendations on modifications or improvements to the apprentice utilization program and information on skill shortages in each trade or craft.

[2009 c 197 § 1; 2007 c 437 § 2; 2006 c 321 § 2; 2005 c 3 § 3.]

Notes:

     *Reviser's note: The "department of general administration" was renamed the "department of enterprise services" by 2011 1st sp.s. c 43 § 107.

     Rules -- Implementation -- 2009 c 197: "The Washington state apprenticeship and training council shall adopt rules necessary to implement sections 2 and 3 of this act. Rules shall address due process protections for all parties and shall strengthen the accountability for apprenticeship committees approved under chapter 49.04 RCW in enforcing the apprenticeship program standards adopted by the council." [2009 c 197 § 4.]

     Effective date -- 2005 c 3: See note following RCW 39.04.300.




39.04.330
Use of wood products — Compliance with chapter 39.35D RCW.

For purposes of determining compliance with chapter 39.35D RCW, the *department of general administration shall credit the project for using wood products with a credible third party sustainable forest certification or from forests regulated under chapter 76.09 RCW, the Washington forest practices act.

[2005 c 12 § 11.]

Notes:

     *Reviser's note: The "department of general administration" was renamed the "department of enterprise services" by 2011 1st sp.s. c 43 § 107.




39.04.340
Apprenticeship and training council outreach effort.

The Washington state apprenticeship and training council shall lead and coordinate an outreach effort to educate returning veterans about apprenticeship and career opportunities in the construction industry. The outreach effort shall include information about the "helmets to hardhats" program and other paths for making the transition from military service to the construction workforce. The outreach effort shall be developed and coordinated with apprenticeship programs, other state agencies involved in workforce training, and representatives of contractors and labor.

[2006 c 321 § 3.]




39.04.350
Bidder responsibility criteria — Supplemental criteria.

(1) Before award of a public works contract, a bidder must meet the following responsibility criteria to be considered a responsible bidder and qualified to be awarded a public works project. The bidder must:

     (a) At the time of bid submittal, have a certificate of registration in compliance with chapter
18.27 RCW;

     (b) Have a current state unified business identifier number;

     (c) If applicable, have industrial insurance coverage for the bidder's employees working in Washington as required in Title 51 RCW; an employment security department number as required in Title 50 RCW; and a state excise tax registration number as required in Title 82 RCW;

     (d) Not be disqualified from bidding on any public works contract under RCW 39.06.010 or 39.12.065(3);

     (e) If bidding on a public works project subject to the apprenticeship utilization requirements in RCW 39.04.320, not have been found out of compliance by the Washington state apprenticeship and training council for working apprentices out of ratio, without appropriate supervision, or outside their approved work processes as outlined in their standards of apprenticeship under chapter 49.04 RCW for the one-year period immediately preceding the date of the bid solicitation; and

     (f) Until December 31, 2013, not have violated RCW 39.04.370 more than one time as determined by the department of labor and industries.

     (2) In addition to the bidder responsibility criteria in subsection (1) of this section, the state or municipality may adopt relevant supplemental criteria for determining bidder responsibility applicable to a particular project which the bidder must meet.

     (a) Supplemental criteria for determining bidder responsibility, including the basis for evaluation and the deadline for appealing a determination that a bidder is not responsible, must be provided in the invitation to bid or bidding documents.

     (b) In a timely manner before the bid submittal deadline, a potential bidder may request that the state or municipality modify the supplemental criteria. The state or municipality must evaluate the information submitted by the potential bidder and respond before the bid submittal deadline. If the evaluation results in a change of the criteria, the state or municipality must issue an addendum to the bidding documents identifying the new criteria.

     (c) If the bidder fails to supply information requested concerning responsibility within the time and manner specified in the bid documents, the state or municipality may base its determination of responsibility upon any available information related to the supplemental criteria or may find the bidder not responsible.

     (d) If the state or municipality determines a bidder to be not responsible, the state or municipality must provide, in writing, the reasons for the determination. The bidder may appeal the determination within the time period specified in the bidding documents by presenting additional information to the state or municipality. The state or municipality must consider the additional information before issuing its final determination. If the final determination affirms that the bidder is not responsible, the state or municipality may not execute a contract with any other bidder until two business days after the bidder determined to be not responsible has received the final determination.

     (3) The capital projects advisory review board created in RCW 39.10.220 shall develop suggested guidelines to assist the state and municipalities in developing supplemental bidder responsibility criteria. The guidelines must be posted on the board's web site.

[2010 c 276 § 2; 2009 c 197 § 2; 2007 c 133 § 2.]

Notes:

     Rules--Implementation -- 2009 c 197: See note following RCW 39.04.320.




39.04.360
Payment of undisputed claims.

No later than thirty days after satisfactory completion of any additional work or portion of any additional work by a contractor on a public works project, the state or municipality shall issue a change order to the contract for the full dollar amount of the work not in dispute between the state or municipality and the contractor. If the state or municipality does not issue such a change order within the thirty days, interest must accrue on the dollar amount of the additional work satisfactorily completed and not in dispute until a change order is issued. The state or municipality shall pay this interest at a rate of one percent per month. For the purposes of this section, additional work is work beyond the scope defined in the contract between the contractor and the state or municipality.

[2009 c 193 § 1.]




39.04.370
Contract requirements — Off-site prefabricated items — Submission of information.

(1) For any public work estimated to cost over one million dollars, the contract must contain a provision requiring the submission of certain information about off-site, prefabricated, nonstandard, project specific items produced under the terms of the contract and produced outside Washington. The information must be submitted to the department of labor and industries under subsection (2) of this section. The information that must be provided is:

     (a) The estimated cost of the public works project;

     (b) The name of the awarding agency and the title of the public works project;

     (c) The contract value of the off-site, prefabricated, nonstandard, project specific items produced outside Washington, including labor and materials; and

     (d) The name, address, and federal employer identification number of the contractor that produced the off-site, prefabricated, nonstandard, project specific items.

     (2)(a) The required information under this section must be submitted by the contractor or subcontractor as a part of the affidavit of wages paid form filed with the department of labor and industries under RCW
39.12.040. This information is only required to be submitted by the contractor or subcontractor who directly contracted for the off-site, prefabricated, nonstandard, project specific items produced outside Washington.

     (b) The department of labor and industries shall include requests for the information about off-site, prefabricated, nonstandard, project specific items produced outside Washington on the affidavit of wages paid form required under RCW 39.12.040.

     (c) The *department of general administration shall develop standard contract language to meet the requirements of subsection (1) of this section and make the language available on its web site.

     (d) Failure to submit the information required in subsection (1) of this section as part of the affidavit of wages paid form does not constitute a violation of RCW 39.12.050.

     (3) For the purposes of this section, "off-site, prefabricated, nonstandard, project specific items" means products or items that are: (a) Made primarily of architectural or structural precast concrete, fabricated steel, pipe and pipe systems, or sheet metal and sheet metal duct work; (b) produced specifically for the public work and not considered to be regularly available shelf items; (c) produced or manufactured by labor expended to assemble or modify standard items; and (d) produced at an off-site location.

     (4) The department of labor and industries shall transmit information collected under this section to the capital projects advisory review board created in RCW 39.10.220 for review.

     (5) This section applies to contracts entered into between September 1, 2010, and December 31, 2013.

     (6) This section does not apply to department of transportation public works projects.

     (7) This section does not apply to local transportation public works projects.

[2010 c 276 § 1.]

Notes:

     *Reviser's note: The "department of general administration" was renamed the "department of enterprise services" by 2011 1st sp.s. c 43 § 107.




39.04.380
Preference for resident contractors.

(1) The *department of general administration must conduct a survey and compile the results into a list of which states provide a bidding preference on public works contracts for their resident contractors. The list must include details on the type of preference, the amount of the preference, and how the preference is applied. The list must be updated periodically as needed. The initial survey must be completed by November 1, 2011, and by December 1, 2011, the department must submit a report to the appropriate committees of the legislature on the results of the survey. The report must include the list and recommendations necessary to implement the intent of this section and section 2, chapter 345, Laws of 2011.

     (2) The *department of general administration must distribute the report, along with the requirements of this section and section 2, chapter 345, Laws of 2011, to all state and local agencies with the authority to procure public works. The department may adopt rules and procedures to implement the reciprocity requirements in subsection (3) of this section. However, subsection (3) [of this section] does not take effect until the *department of general administration has adopted the rules and procedures for reciprocity under subsection (2) of this section [this subsection] or announced that it will not be issuing rules or procedures pursuant to this section.

     (3) In any bidding process for public works in which a bid is received from a nonresident contractor from a state that provides a percentage bidding preference, a comparable percentage disadvantage must be applied to the bid of that nonresident contractor. This subsection does not apply until the *department of general administration has adopted the rules and procedures for reciprocity under subsection (2) of this section, or has determined and announced that rules are not necessary for implementation.

     (4) A nonresident contractor from a state that provides a percentage bid preference means a contractor that:

     (a) Is from a state that provides a percentage bid preference to its resident contractors bidding on public works contracts; and

     (b) At the time of bidding on a public works project, does not have a physical office located in Washington.

     (5) The state of residence for a nonresident contractor is the state in which the contractor was incorporated or, if not a corporation, the state where the contractor's business entity was formed.

     (6) This section does not apply to public works procured pursuant to RCW
39.04.155, 39.04.280, or any other procurement exempt from competitive bidding.

[2011 c 345 § 1.]

Notes:

     *Reviser's note: The "department of general administration" was renamed the "department of enterprise services" by 2011 1st sp.s. c 43 § 107.

     Conflict with federal requirements -- 2011 c 345: "If any part of this act is found to be in conflict with federal requirements that are a prescribed condition to the allocation of federal funds to the state or local authority, the conflicting part of this act is inoperative solely to the extent of the conflict and with respect to the agencies directly affected, and this finding does not affect the operation of the remainder of this act in its application to the agencies concerned. Rules adopted under this act must meet federal requirements that are a necessary condition to the receipt of federal funds by the state or local authority." [2011 c 345 § 2.]




39.04.900
Rights may not be waived — Construction — 1992 c 223.

(1) The rights provided in chapter 223, Laws of 1992 may not be waived by the parties and a contract provision that provides for waiver of the rights provided in chapter 223, Laws of 1992 is void as against public policy.

     (2) Chapter 223, Laws of 1992 is to be liberally construed to provide security for all parties intended to be protected by its provisions.

[1992 c 223 § 6.]

Notes:

     Effective date -- 1992 c 223: See note following RCW 39.76.011.

     Application -- 1992 c 223: See RCW 39.04.901.




39.04.901
Application — 1992 c 223.

RCW 39.76.011, 60.28.011, 60.28.021, 60.28.051, 39.04.250, and 39.04.900 are applicable to all public works contracts entered into on or after September 1, 1992, relating to the construction of any work of improvement.

[2009 c 219 § 1; 1992 c 223 § 7.]

Notes:

     Effective date -- 1992 c 223: See note following RCW 39.76.011.