Public Works and Utilities

There is no state law that requires building inspectors to be licensed. However, agencies are still required by RCW 19.27.050 to enforce the state building code (including any local changes the agency has adopted). This can be done by in-house employees, or by contract with another jurisdiction or private company to act as your building official.

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There is no legal prohibition against shutting water off during the winter months. That said, to shut off water, you’ll need to follow precise steps. The best place to start is our Utility Liens and Shut-offs tool, which walks you through the necessary steps on water shut off.

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Sidewalks:

• WA State Dept. of Transportation - Provides information on federal and state funding programs administered through Local Programs, including the pedestrian and bicycle, safe routes to school, surface transportation block grant, and transportation alternatives programs.
• MRSC - Complete Streets Policies – Includes a section on the state’s complete streets grant program.
• MRSC - Sidewalk Construction, Maintenance, and Repair – Includes examples of local sidewalk repair programs, including some of those found below.
• Bellingham has a transportation fund for projects like sidewalk improvements. That page includes links to the city’s six-year transportation improvement program. This FAQ lists all the main funding sources for the 6-Year TIP.
• Seattle’s Sidewalk Development Program - Includes projects funded by a voter-approved levy. Here’s a link to more information on their Sidewalk Repair Program.
• Shoreline Sidewalks webpage – Includes information on the city’s 2018 voter-approved sidewalks program and sidewalk funding.
• This Tacoma webpage on Sidewalks describes Washington State law regarding maintenance of sidewalks in the right-of-way. It includes other helpful information, like a Q and A on tree damage to sidewalks and the potential for a local improvement district to fund sidewalks.

Trees:

• MRSC - Urban Forestry - Includes links to resources like urban forestry plans and programs (which often include funding sources) and the WA Dept. of Natural Resources Urban and Community Forestry webpage with grants and financial assistance. DNR is currently accepting applications for community forestry assistance grants (projects to support a wide variety of urban forestry projects that help create healthier communities). Also on this page, this document from the American Public Works Association includes sources of funding for urban forestry programs.
• EPA’s Grants webpage - Includes a link to Grants.Gov, a searchable grants database, and other grant opportunities.
• City funds - In some communities, city funds are only available if the street tree is on the city’s “street tree responsibility list” or the city’s responsibility, in other words.
• Look to a neighborhood group to help fund and plant trees in their respective neighborhoods.
• Look to a local tree organization to see if it can help fund some street trees.
• You could develop a street tree permit, whereby you reinvest the permit fees into new or replacement trees.

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No, a town may not use town equipment to plow snow from private property including personal driveways. One reason is that the Washington State Constitution, Article VIII, Section 7, prohibits gifts of public funds or resources to private individuals or entities.

Further, town equipment and time should not be used to plow private property even if the property owner pays for the cost of the service – that is because there is no “proper municipal purpose” for a city to provide those services. Private companies and individuals provide snow plowing services; no statutes in chapter 35.27 RCW grant authority to a town to engage in such activities.

So, the resident could be referred to snow removal businesses that service private roads and driveways.

Here is a link to MRSC’s topic page Snow and Ice Removal Policies with legal authorities and sample policies. In addition, here is a link to MRSC’s 2019 blogpost on Dealing with Snow and Ice on Streets and Sidewalks.

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The Washington legislature has not yet passed authorizing legislation for community choice aggregation (CCA). CCA allows local governments to aggregate or pool the electricity loads of residents, businesses, and/or municipal facilities and purchase or develop power on behalf of these aggregated customers. CCA has been used to drive down prices and to significantly increase demand for renewable/clean energy.

The Lean Energy webpage lists the states that have already adopted legislation allowing for CCA and shows Washington State as “watch list/potential” for CCA, so it may be that something considered in a future legislative session. Here is a link to an article with more information on CCAs and the states who are using this model. And here is a link to the Washington Utilities and Transportation Commission webpage describing green power programs available in Washington State.

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MRSC has a Local Ballot Measure Database where we searched for the results of local ballot measures for general obligation (GO) bonds since 2011 (as far back as our data goes). The results of that search show that there have been a total of 10 ballot measures with 6 passing and 4 failing.

We also have a Revenue Guide for Washington Cities and Towns which has a section that discusses general obligation (GO) bond levies which we would encourage you to review. It recommends that you consult your city’s bond counsel early in the process.

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We are aware of a couple of testing programs in the cities of Vancouver and Lynden. See this Bellingham Herald story (Here’s where Whatcom sewage is being sampled for COVID-19 and what it might tell us) reporting on the Lynden testing program that includes testing at two schools in the city. Here is a Vancouver press release detailing the testing program there. The Vancouver page includes a few links to additional references. We monitor a lot of the local newspapers in Washington for general local government news and have not noticed any reports other than the Vancouver and Lynden programs. Our guess is that there are probably not a lot who are doing this.

We sent a survey out to public works directors in cities over 20,000 population. You can view the results here. The results so far indicate that one other city, Spokane, has participated in a pilot study for wastewater COVID-19 testing.

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No, mixing rosters is not permissible. Additionally, you will confuse contractors and vendors if you try to manage their participation between multiple rosters. It could also lead to a protest if a vendor/contractor did not get a solicitation because you were trying to manage projects between separate lists.

The agency’s contract for the MRSC Rosters service refers to MRSC Rosters as being the exclusive roster for public works projects (and related to certain purchases via a vendor roster if the agency’s contract with MRSC includes that service), so that is our expectation. MRSC Rosters is a service that we provide to agencies, but it’s important for each agency to consult with its legal counsel to ensure that the agency is in compliance with all legal and local policy requirements that apply to that agency specifically.

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The contractor would not be required to provide the Payment/Performance bond if it is being waived, which requires 10% retainage being held instead. However, if this bond waiver option is selected, then you will need to hold retainage even though retainage can be waived in the small works roster process. The only small works roster process where you can waive both retainage and the bond is for limited public works projects.

Some agencies do request separate payment and performance bonds. This waiver could waive both; you would need to determine what you will require and communicate the requirement to your bidders.

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Yes, stormwater utility service falls within the scope of the definition of “system of sewerage” in RCW 35.67.010, which includes the following:

1. Sanitary sewage collection, treatment, and/or disposal facilities and services, on-site or off-site sanitary sewerage facilities, inspection services and maintenance services for public or private on-site systems, or any other means of sewage treatment and disposal approved by the city;
2. Combined sanitary sewage disposal and storm or surface water sewers;
3. Storm or surface water sewers;
4. Outfalls for storm drainage or sanitary sewage and works, plants, and facilities for storm drainage or sanitary sewage treatment and disposal, and rights and interests in property relating to the system;
5. Combined water and sewerage systems;
6. Point and nonpoint water pollution monitoring programs that are directly related to the sewerage facilities and programs operated by a city or town;
7. Public restroom and sanitary facilities; and
8. Any combination of or part of any or all of such facilities.

Therefore, MRSC takes the position that surface water utility charges may be included in a sewer lien, which would follow the processes outlined in RCW 35.67.200 through RCW 35.67.290.

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There are a couple of components to your questions. Regarding authority to close streets temporarily to vehicle traffic, the city has broad authority to do so, especially during an emergency. Even in non-emergencies, code cities have broad authority to manage and regulate right of way—see, for example RCW 35A.11.020. Once your county enters into Phase II of the Safe Start COVID-19 recovery plan, we think the city could temporarily restrict certain rights-of-way so they are available only to pedestrians, non-motor vehicles and expanded outdoor restaurants pursuant to an order setting forth the public health and economic basis for doing so. Such an order should contain interim standards that address the circumstances and conditions that will govern the temporary use of the right-of-way.

Ordinarily, use of right-of-way requires the restaurant operator to pay a fee for the use of public property for restaurant purposes. However, under these emergency circumstances, the Washington Attorney General has released guidance that may provide the basis for local governments to incur expenditures (or forego revenue) in light of the COVID-19 emergency.

The Phase II guidance from the governor to restaurants and taverns authorizes outdoor seating at the same 50% capacity and under the same conditions and restrictions as indoor seating.

Consumption of alcohol in outdoor areas not previously authorized by the Washington Liquor and Cannabis Board (LCB) should be avoided, at least until there is guidance from the Board. The LCB has a COVID-19 webpage that summarizes steps taken by them in response to COVID-19. The LCB has not addressed this specific issue, although it has taken a number of actions, including allowing minors to sit in areas normally limited to individuals who are over 21 and allowing sales of beer, wine, and liquor for consumption off premises when purchased with take-out food orders. We are not aware of any proposals by the LCB to allow alcohol consumption in “new” outdoor seating areas. We recommend reaching out to the LCB directly for guidance.

At this time, we are not aware of any Washington cities or counties that have adopted orders to this effect although there is discussion, both in Washington and other parts of the country. Here are some recent articles on the topic:

• ‘Parklets’ eyed to aid Vancouver eateries, The Columbian, May 13, 2020
• Safely Reopening Retail Districts, American Planning Association, May 11, 2020
• Dining Out? Cities Allow Restaurants to Reopen with Seating in Streets, Parking Lots, Route Fifty, May 8, 2020
• Cities may allow restaurants, pubs to stretch patios into public space, The Globe and Mail, May 12, 2020

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Effective January 1, 2020, contractors must file weekly certified payroll reports for all prevailing wage jobs (regardless of project amount), and submit them to the Washington State Department of Labor & Industries (L&I) directly. These reports are submitted online through L&I’s Prevailing Wage Intent and Affidavit (PWIA) system. The local government agency has no responsibility to review and check the reports. For more information, the contractor should contact L&I at pw1@Lni.wa.gov.

Projects that began prior to January 1, 2020, and that are still in progress will require certified payroll filing for work performed from January 1, 2020 and forward. The reporting is not retroactive for these projects. See RCW 39.12.120.

Contractors must always provide weekly certified payroll reports for federal projects.

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Custodial services are generally considered purchased services subject to prevailing wages. As long as the services provided involve normal cleaning work, this would be the situation. If they are doing any handyman work that involves repairs, upgrades and similar types of improvements, then the work would likely fall in the public works category.

Please note that custodial contracts require annual updates to prevailing wages. See page 55 of the Department of Labor and Industries Prevailing Wage Law booklet.

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If the city wants to use a small works roster (for public works projects under $350k), it can elect to do so pursuant to RCW 39.04.155. This is an optional process. If the city elects not to use the small works roster, then a formal competitive bid process must be followed if the project exceeds applicable bid limits. Effective July 28, 2019, ESSB 5418 increased the day labor/bid limits for code cities, second class cities, and towns to $75,500 (single craft) and $116,155 (multiple craft).

If the project is below applicable bid limits, a city may use the small works roster or a minimal competition process. For more on this, see our Find your Contracting Requirements Tool.

For cities, there is no statutory requirement for bidding for services (which would include consultants). This process is expected to be outlined in policy by the agency. The agency can, therefore, define whether it requires a roster to be used, or any other process deemed appropriate. Some agencies establish different procedures depending on the amount anticipated to be spent.

There is no requirement for an agency to use a roster for A&E contracting. A roster can be incorporated into the A&E process of Ch. 39.80 RCW, and such procedures should be set forth in the agency’s policies.

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There is no dollar threshold that applies when qualifying work requires prevailing wage. Whether prevailing wage is required depends on the work being performed, not the dollar amount.

To make a determination, one should first look at whether the work involves the hands-on work of “laborers, workers or mechanics” and then whether the work is to perform any “construction, reconstruction, maintenance or repair” (see RCW 39.12.030) or demolition, etc. (WAC 296-127-010(7)(a)).If so, one should then determine whether such work is executed at a cost to the state or of any municipality pursuant to RCW 39.04.010(4).

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We believe such a project does not require public works competitive bidding under state law because RCW 39.04.270 allows municipalities to acquire technology such as electronic data processing or telecommunication equipment, software, or services through competitive negotiation rather than through competitive bidding. We think an electronic camera security system would fit this description. The statute provides:

(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.

(Emphasis added).

For a capital purchase using a request for proposals (RFP) process, you could also include RFQ content in an RFP. Here is a link to MRSC’s Telecommunications and Data Processing Purchases section of the Purchasing Goods, Equipment, Materials and Supplies topic with the steps for following this alternative process. Here is a link to MRSC’s publication County Bidding Book, Washington State.

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