Overview
Washington statutes provide exemptions from competitive bidding in a number of situations, meaning that local governments do not have to follow the normal competitive processes.
Some of these exemptions apply broadly to almost all local government agencies, while others apply more narrowly.
Uniform Exemptions for Public Works and Purchases
RCW 39.04.280 provides uniform exemptions for public works and purchases, including:
These exemptions apply to all municipalities as defined in RCW 39.04.010, as long as the governing body formally approves and documents the exemption.
Note: These competitive bidding exemptions only apply if a jurisdiction has either:
- Adopted a resolution at the time of contracting, or
- Adopted written policies beforehand that apply to that particular situation, in which case the contract and the factual basis for the exemption must be recorded and open to public inspection immediately after the contract is awarded
Emergency Public Works and Purchases
RCW 39.04.280(1)(c) and (1)(e) provide uniform exemptions for emergency purchases and public works projects, respectively. Some agencies also have similar emergency exemptions specifically written into their enabling statutes.
“Emergency” as defined in RCW 39.04.280(3) means any unforeseen circumstances beyond the control of the municipality that either present a real, immediate danger to the proper performance of essential functions, or will likely result in material loss or damage to property, bodily injury, or loss of life if immediate action is not taken. This includes declared federal or state disasters, as well as local agency-declared disasters.
If an emergency exists, the appropriate individuals - either the governing body, or an individual designated by the governing body to act in the event of an emergency - may declare that an emergency exists, waive competitive bidding requirements, and award all necessary contracts to address the emergency. If a federal or state emergency has been declared, the governing body should pass a resolution acknowledging the declaration and invoking RCW 39.04.280 as well.
In the event of a true emergency, governing bodies are generally exempt from the normal notice requirements of the Open Public Meetings Act under RCW 42.30.070 and RCW 42.30.080(4).
If an emergency contract is awarded without competitive bidding, the governing body or its designee must enter a written finding of an emergency into the public record no later than two weeks following the contract award.
Examples of Emergency Public Works/Purchases
Sole Source Purchases
RCW 39.04.280(1)(a) allows agencies to waive competitive bidding if a purchase is clearly and legitimately limited to a single supplier. These situations often arise when an agency has specific technological requirements. Examples include:
- Licensed, copyrighted, or patented products or services that only one vendor provides
- New equipment or products that must be compatible with existing equipment or products
- Proprietary or custom-built software or information systems that only one vendor provides
- Products or services where only one vendor meets the required certifications or statutory requirements
Agencies should base these decisions on an objective review of the required product or service, making sure to document why that particular product or service is mandatory and whether efforts were made to find other vendors.
Examples of Sole Source Request/Justification Forms
Examples of Sole Source Resolutions/Notice
Purchase of Insurance or Bonds
RCW 39.04.280(1)(d) allows agencies to waive competitive bidding for the purchase of insurance or bonds.
Purchases Involving Special Facilities or Market Conditions
RCW 39.04.280(1)(b) allows agencies to waive competitive bidding for purchases involving special facilities or market conditions. These are generally limited to good deals that are available for a short time, such as a very good price on an exceptional piece of used equipment, or the chance to buy supplies at a going-out-of-business sale or similar event.
Auctions
RCW 39.30.045 allows any municipality, as defined in RCW 39.04.010, to purchase any supplies, equipment, or materials at auctions without following public bidding requirements if the items can be obtained at a competitive price.
And while there is no specific statute regarding the purchase of real estate at auction, any local government that is empowered by law to acquire real estate in general may purchase real estate at auction. A purchase of real estate at auction still must meet the legal requirements for local government land acquisition, including a proper public purpose for the acquisition.
Community Service Group Contracts
RCW 35.21.278 allows selected municipalities to enter into contracts with community groups to install, improve, or maintain parks, school playgrounds, public squares, equipment, artwork, or environmental stewardship projects, and to reimburse the groups for their expenses without following competitive bidding requirements.
This exemption applies to:
- Cities/Towns
- Counties
- Metropolitan park districts
- Park and recreation districts
- Park and recreation service areas
- Port districts
- School districts
Examples of community service groups include chambers of commerce, service organizations, community, youth, or athletic associations, or other similar organizations.
The statute says that the contracting association "may use volunteers in the project," but it does not require the use of volunteers.
The benefit received by the municipality must be at least three times the amount of the payment to the community group. Municipalities may not spend more than $25,000 or $2 per resident, whichever is greater, on these types of contracts within a single year.
Examples of Community Service Group Contracts
Pollution Control Facilities: Cities, Counties, Ports
RCW 70A.210.110 (recodified in 2020; previously RCW 70.95A.090) provides a broad competitive bidding exemption for pollution control facilities constructed or improved by cities, towns, counties, or port districts. It states:
[Pollution control] facilities shall be constructed, reconstructed, and improved … in the manner determined by the governing body in its sole discretion and any requirement of competitive bidding, lease performance bonds or other restriction on the procedure for the award of contracts for such purpose … is not applicable.”
RCW 70A.210.020 defines pollution broadly to include “any form of environmental pollution, including but not limited to water pollution, air pollution, land pollution, solid waste disposal, thermal pollution, radiation contamination, or noise pollution.”
It also defines facility as “any land, building, structure, machinery, system, fixture, appurtenance, equipment or any combination thereof, or any interest therein … to be used … in furtherance of the purpose of abating, controlling, or preventing pollution.”
This statute appears to be far-reaching, but eligible agencies should use caution before proceeding and ask the Department of Ecology to certify that the facility is indeed designed to abate, control, and/or prevent pollution.
In addition, cities, towns, and counties have their own statutory exemptions for water pollution control facilities/services and solid waste handling facilities/services:
Water Pollution Control Facilities: All Agencies
Chapter 70A.140 RCW (recodified in 2020; formerly chapter 70.150 RCW) allows agencies to contract for water pollution facilities and operation using the competitive bidding requirements of RCW 70A.140.040.
For more information, download the Department of Ecology’s publication on Service Provider Agreements for Water Pollution Control Facilities.