Bidding and Awarding a Public Works Contract

Awarding a Contract

RCW 39.04.010 requires local agencies to award public works contracts to a responsible bidder with the lowest responsive bid. This applies to informal bidding, such as a small works roster, as well as formal competitive bids.

Agencies may not negotiate with any of the bidders. Some submissions may involve errors, omissions, or other irregularities, and agencies must decide how to handle them.

What is a Responsive Bid?

Responsive bids are bids that are submitted on time with all of the information the agency requested. Agencies should identify in the bid documents an official bidding clock located in the room where the bids will be opened. This clock should be checked on a bid opening day to verify its accuracy.

Typically, bidders must provide the following information at the time of bidding:

• Sealed bids, with the name of the project and the time and date of the bid opening clearly stated on the outside of the bid packet
• Bid guarantee in the form of a bid bond, cashier’s check, certified check, or personal money order
• Lump sums, unit prices, and total prices in the spaces provided on all of the bid forms, including all appropriate sales taxes
• Receipt of addenda acknowledged
• Acknowledgment of attendance at mandatory pre-bid meeting, if so required by the agency (agency to verify). (Deciding to require a mandatory pre-bid meeting should be evaluated for each project based on the particular circumstances of the project. Such process should then be managed very carefully.)
• Non-collusion affidavit certificate
• Mandatory bidder responsibility questionnaire with all items filled in

While it is possible to do a brief check when the bids are first opened, the agency must reserve the right to ascertain full compliance with the bid proposal requirements after a more detailed review.

Additional items may be required shortly after bid opening:

• If supplemental bidder responsibility criteria are required (see below), a separate questionnaire must be filled out and submitted within 72 hours after bid opening. However, this questionnaire should only be required of the apparent low bidder and the next two lowest bidders
• For projects that cost an estimated $1 million or more, a list of all subcontractors for HVAC, plumbing, or electrical work must be submitted (RCW 39.30.060). The bidder may also submit itself for any of these categories. This list may either be submitted within one hour after the bid opening (the preferred method) or at the time the bid is submitted.

What is a Responsible Bidder?

Responsible bidders, as defined in RCW 39.04.010 and 39.04.350, must meet a number of mandatory criteria. The bidder must:

• Be a registered contractor
• Have a current Unified Business Identifier (UBI) number
• Have industrial insurance/workers’ comp coverage, which means they normally cannot be sued for damages if a work-related injury or illness occurs. For more details, see L&I's publication Employers’ Guide to Workers’ Compensation Insurance in Washington State.
• Have an Employment Security Department (ESD) account
• Have a state excise tax registration number
• Not be disqualified from bidding under RCW 39.06.010 or 39.12.065(3)
• Not have any apprenticeship violations, if applicable
• Certify through a sworn statement or an unsworn declaration under penalty of perjury that they are not a willful violator of labor laws in reference to RCW 49.48.082 within the past three years. MRSC has developed a model statement (.docx) to satisfy this requirement. We updated this form in July 2019 to reflect SSB 5017.
• Have received training, provided by the Department of Labor and Industries or by a provider whose curriculum has been approved by L&I, on the requirements related to public works and prevailing wages. However, bidders that have completed three or more public works projects and maintained a valid business license in Washington for at least three years are exempt from this requirement. For more information as well as training opportunities for businesses, see L&I's webpage on Contractor Training.

Verifying Responsible Bidder Status

The certification that the bidder has not violated labor laws in the last three years is the only criteria that may be satisfied by a sworn statement. All other criteria must be verified by the agency, except for the ESD number which cannot be verified online and must be provided by the bidder. However, public agencies may ask bidders to submit a Bidder Information sheet to help verify these criteria.

State agencies provide several resources to verify the status of a contractor:

• Verify a Contractor, Tradesperson or Business provides information about every registered contractor, including the UBI number, status of the industrial insurance/workers’ comp account, and contractor training status.
• Debarred Contractors List provides a list of contractors disqualified from bidding. Print out the search results and keep them in the project file.
• Check Status of a Business or Professional License verified an active Department of Revenue tax registration.
• Employment Security Department regulations do not allow online verification of a contractor’s ESD account. To verify the account, agencies may request a Bid Letter or require the contractor to file the account number with the agency as part of a bid submittal or small works roster application.

Supplemental Responsible Bidder Criteria

In addition, RCW 39.04.350(3) allows agencies to adopt additional relevant responsible bidder criteria for individual projects. The Capital Projects Advisory Review Board (CPARB) has developed Suggested Guidelines for Bidder Responsibility to help local and state agencies in developing these supplemental criteria. To view the most recent version, see CPARB's Background and Reference page and click on "Bidder Responsibility Guidelines."

Many local agencies have developed supplemental criteria on two levels:

• A basic level that may include such things as no delinquent state taxes, no federal debarment, minimal prevailing wages violations, no excessive claims against retainage and bonds, no public bidding violations, no termination for cause or default, and unwarranted lawsuits with respect to public contracting.
• A secondary level whose criteria relate to the nature of a specific project. For example, an agency may require that a contractor must have completed three projects of a similar scope and dollar volume within the past five years.

These supplemental criteria and associated evaluation methods must be provided in the invitation to bid or bidding documents.

Responsible Subcontractor Criteria

RCW 39.06.020 requires a public works contractor to verify responsibility criteria for each first tier subcontractor, and a subcontractor of any tier that hires other subcontractors must verify responsibility criteria for each of its subcontractors. Verification is to include that, at the time of subcontract execution, each subcontractor meets the responsibility criteria listed above and in RCW 39.04.350(1) and additionally - if applicable - possesses an electrical contractor license or an elevator contractor license.

This verification requirement, as well as the responsibility criteria, must be included in every public works contract and subcontract of every tier. However, agencies are not required to independently verify subcontractor responsibility or keep subcontractor records.

Notice of Award and Notice to Proceed

After all the bids are opened, the agency should identify the apparent low bidder for the record, but note that agency staff will review the bids submittals for completeness and numerical accuracy. Once this review is completed, generally within a maximum of 30-45 days, agency staff will recommend award of the contract to a responsible bidder with the lowest responsive bid. The agency must allow adequate time for bidders to submit written bid protests, as described below, before awarding the contract.

Upon approval by the agency’s governing body or designated staff person, a Notice of Award is sent to the contractor, which requires them to submit the following, typically within 10 or 20 business days after the date of the Notice:

• Signed contract
• Performance and payment bonds
• Certificate(s) of insurance

After the contract is signed by the agency’s designated representative, the agency will issue a Notice to Proceed, usually transmitting the signed contract and stating the official time of completion of the contract based on the contract documents. Many agencies also remind the contractor that prior to any payment under the contract, the contractor must provide an approved statement of intent to pay prevailing wages from the contractor and any subcontractors that work in any given pay period.

Effective July 28, 2019, code cities, second class cities, and towns may award projects to the second-lowest responsible bidder if both of the following conditions are met (see RCW 35.23.352, referenced by RCW 35A.40.200 for code cities):

• The city issues a written finding that the lowest bidder has delivered a project to the city within the last three years which was late, over budget, or did not meet specifications, and the city does not find in writing that the bidder has shown how they would improve their performance to be likely to meet project specifications; and
• The second-lowest bid is within 5% of the lowest bid and meets the same criteria as the lowest bidder.

Any city/town that awards a contract to the second-lowest responsible bidder under those criteria must make an annual report to the state Department of Commerce including the total number of bids awarded to certified minority or women contractors and describing how notice was provided to potential certified minority or women contractors.

Bid Protests

Agencies should anticipate bid protests and have procedures in place for handling them. For all competitively bid projects, a new provision effective July 28, 2019 requires the agency, within two business days of the bid opening, to provide copies of the bids it received if requested by a bidder (RCW 39.04.105).

The agency may not award the contract during this two-day window, and if bid copies are requested by a bidder, the agency must wait at least two full business days after providing copies before awarding the contract. (A “business day” does not include intermediate Saturdays, Sundays, or legal holidays.)

If a written protest is submitted within (a) two full business days following the bid opening, or (b) two full business days following when the municipality provided copies of the bids to those bidders requesting them, the agency may 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 its intent to execute a contract for the project.

Proof of Insurance

Every agency must require proof of insurance coverage from all contractors and subcontractors via endorsements naming the agency as additionally insured on those policies for all projects, regardless of dollar size. Each agency should review potential risks for each project with its risk manager and/or insurance carrier.

If your agency does not have standard insurance requirements, you may use Section 1-07.18 (APWA Supplement) of the Standard Specifications for Road, Bridge, and Municipal Construction. There are several other APWA GSPs regarding insurance that an agency may want to consider using depending on the size and complexity of the project.

Examples of Public Works Bid Documents

Below are selected examples of public works bidding and award documents.

Templates and Supplemental Bidder Responsibility Criteria

Note that these may not reflect the new bidder responsibility criteria and requirements that took effect between 2017 and 2019, as described above. We are in the process of seeking more recent documents that comply with the new legislation.

• Kitsap Transit Supplemental Bidder Responsibility Criteria (2019) – Addresses bidding crimes and termination for cause or default
• Olympia Supplemental Bidder Responsibility Criteria (2015) – Addresses topics such as bidding crimes, claims against retainage/bonds, lawsuits, and termination for cause/default, as well as completion of similar projects. Includes sample notification letters to bidders that have been determined not to meet the responsibility criteria
• Port of Bellingham Bidder's Checklist (2019) – Indicates which forms must be submitted (1) as part of the bid proposal package, (2) within 5 calendar days after the notice of award, and (3) prior to the notice to proceed.
• Port of Everett Mandatory Responsible Bidder Criteria
• Port of Shelton Invitation to Bid Template

Asbestos/Hazardous Materials Abatement

• Arlington Asbestos Abatement Request for Bids (2022) – Removing asbestos from two city-owned buildings that will be demolished. Contract is only for asbestos abatement prior to demolition; includes sample small public works roster agreement under $50,000, asbestos testing results, and other supporting documents.
• Sultan Asbestos Abatement Invitation to Bid (2024) – Removing asbestos from city-owned residential building. Includes asbestos testing results.

Building Demolition

• Federal Way Building Demolition Request for Bids (2023) – Demolishing former downtown Target building now owned by city, including decommissioning utilities. Includes standard public works contract and other supporting documents, special provisions to standard specifications, permit requirements, and drawings.
• Lakewood Nuisance Abatement and Building Demolition Invitation to Bid (2022) – Removing or repairing dangerous buildings and other nuisance conditions associated with mobile home park, including demolition of certain units. Includes bid proposal form, bidder’s checklist, property map, and asbestos report.
• Sumner Building Demolition Request for Bids (2024) – Demolishing city-owned building, including asbestos abatement and removal of underground oil tank, parking lot, sidewalks, and vegetation. Small works roster project; includes sample contract, bid item description, and hazardous material report.

Tree Trimming & Removal

• Cheney Electrical Line Clearance (Tree Trimming) ITB (2024) – Public works contract for tree trimming and removal near electrical lines. Includes alternate for emergency work during significant storms, plus line clearance specifications/standards.

Additional Public Works Bid Documents

We will be adding more examples in coming months; for additional sample documents regarding purchasing and contracting, you can search or browse MRSC's Sample Document Library: RFP/RFQ/Bid Documents.