The definition of "public work" in RCW 39.04.010(4) excludes "ordinary maintenance":
(4) "Public work" means all work, construction, alteration, repair, or improvement other than ordinary maintenance …
However, that’s not the end of the story. “Ordinary maintenance” is not defined by statute, but a regulation adopted by the Department of Labor and Industries (L&I), WAC 296-127-010(7)(b)(iii), defines it as follows, for purposes of prevailing wage requirements:
7(b)(iii) Ordinary maintenance which is defined as work not performed by contract and that is performed on a regularly scheduled basis (e.g., daily, weekly, monthly, seasonally, semiannually, but not less frequently than once per year), to service, check, or replace items that are not broken; or work not performed by contract that is not regularly scheduled but is required to maintain the asset so that repair does not become necessary.
(Emphasis added.) Under this definition, for example, programmatic tree trimming and cleaning catch basins and sewer/storm mains would be ordinary maintenance, if performed by agency forces.
So, what about ordinary maintenance that is contracted out?
Under L&I’s definition above, ordinary maintenance that is contracted out is subject to prevailing wage requirements, which is what L&I cares about. In Spokane v. Department of Labor and Industries, 100 Wn. App. 805, 819-20 (2000), the state court of appeals approved of L&I’s definition and concluded that ordinary maintenance, when performed by contract, is "public work" subject to prevailing wage law.
But, is ordinary maintenance when performed by contract considered a “public work” for all other purposes – bid limits, bonds, and retainage? We think likely so, because there are not really two types of “public work,” one subject only to prevailing wages and the other also subject to all the other requirements that otherwise apply to public works. Although some agencies and their attorneys take the position that contracted ordinary maintenance is not a public work except for prevailing wage purposes, the safer position is, of course, to treat contracted ordinary maintenance as a public work to which the following apply: prevailing wages, bid and performance bonds, retainage, and competitive bidding if above the applicable statutory threshold for bids.
MRSC's position is that agencies should approach all maintenance projects conservatively and treat them as public works, subject to prevailing wages and all other public works requirements. Except for relatively small contracts, competitive bids or quotes are good business practices. And if your agency subscribes to the position that contracted ordinary maintenance is not a public work except for prevailing wage purposes, you lose the protection that bonding and retainage provide.
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