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Knowing the Waters – Changes to Public Work Laws

By Frank Chmelik of Chmelik Sitkin & Davis P.S. – WPPA Counsel (June 2018)

I always knew that the Eric Johnson and his talented staff at the WPPA did more than host interesting conferences with great food and open bars.  Evidence of that became abundantly clear when Senate Bill 6329 took effect June 7, 2018.  This law amended RCW 53.08.120, which governs port district contracts for labor and material.  Before I go much further, I want to emphasize that this change applies only to port districts[1] – hence there is alchemy at work in the WPPA offices.    These changes provide more flexibility to port districts in two significant ways:

  • The ability to award public works contracts for projects worth less than $40,000 without bids or the use of a small work roster; and
  • The ability to award unit price public work contracts to provide the service to a port on an “on-call” basis for up to three years.

               Ability to Award Public Works under $40,000 Without Bids.  Under the changes to RCW 53.08.120, port districts now have authority to award public works projects by contract without calling for bids or even utilizing a small works roster so long as the “estimated cost of the work or improvement, including cost of materials, supplies, and equipment, will not exceed the sum of Forty Thousand Dollars [$40,000].”  This is a significant departure for port districts from existing law which requires most all public works to be run through either the full bidding process or a small works roster process.

  • Port districts must award a complete public works project and cannot split a project into $40,000 segments to avoid going out to bid or utilizing a small works roster.
  • Port districts must utilize their “best effort to reach out to qualified contractors, including certified minority and woman-owned contractors.”

For small projects, especially in more remote port districts, this is great news.  Projects can be done quickly and without much administrative burden.  Remember to document the required “best efforts”.

               Three-Year Unit-Priced Contracts.  I think more significant are the changes to RCW 53.08.120, authorizing port districts to enter into unit-priced public works contracts for up to three years.  A “unit-priced public works contract” is a contract where payment is measured by a unit of material or labor delivered.  For example, a unit price painting contract would provide for payment on an hourly basis for all painting for a three-year period.  These unit price contracts can extend for an additional year.

  • The unit-priced contract must be competitively bid for those public works that the port district anticipates it will need on a recurring basis “to meet the business or operational needs” of the port, under which the contractor will provide an indefinite quantity of work at a defined unit price for the duration of the contract. For the bid evaluation of unit-priced contracts, invitations for those bids must include:
  • Estimated quantities of the anticipated type of work or trades;
  • Specifications on how the port district will issue or release work assignments, work orders, or task authorizations pursuant to a unit priced contract for projects, tasks, or other work based on the hourly rates or unit prices bid by the contractor;
  • Whenever possible, the port district must invite at least one proposal from a qualified minority or woman-owned contractor; and
  • Contracts must be awarded to the lowest responsible bidder as per RCW 39.04.010.

The prevailing wage rate for all work performed pursuant to each work order must be the prevailing wage rate in effect at the beginning date for each contract year and must be updated annually. Intents & Affidavits for paid prevailing wages need only be submitted annually for all work completed within the previous twelve-month period of the unit-priced contract.

This new provision provides port districts with flexibility and reduced administrative burden for routine work.  It avoids having to bid or utilize the small works roster for each individual project and lightens the prevailing wage paperwork drill to once a year.  This may result in significant savings on staff time for these types of reoccurring and anticipated public works.  Moreover, it may make budgeting for these expenses much more predictable.

Nice work by the staff at WPPA!

[1] Our fifty or so fire districts, PUD and City clients are jealous.