Competitive Bidding Exemptions
This page provides a basic overview of competitive bidding exemptions for local governments in Washington State, including emergencies, sole source purchases, special market conditions, auctions, and other situations.
It is part of MRSC’s series on Purchasing and Contracting.
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.
To see your agency's possible exemptions for a particular type of contract, use MRSC's Find Your Contracting Requirements tool.
RCW 39.04.280 provides uniform exemptions for public works and purchases, including:
- Emergency public works and purchases
- Sole source purchases
- Purchases involving special facilities or market conditions
- Purchase of insurance or bonds
These exemptions are discussed in more detail below and apply to all municipalities as defined in RCW 39.04.010, as long as the governing body formally approves and documents the exemption. (Also see RCW 36.32.270 for counties.)
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
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.
Practice Tip: Any contract for which a competitive process is waived must be an explicit necessity and directly related to the emergency.
“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 emergencies.
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.
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.
Practice Tips for Emergency Public Works Contracts
- If possible, your agency should create a standard, short-form contract to use in the event of an emergency. However, a fully-executed contract is not required before the contractor begins emergency work.
- Your agency still must require retainage, prevailing wages, and performance and payment bonds.
- Although you may already have an emergency contractor in mind, you might want to check your small works roster (if applicable) to see if there are any other contractors that could mobilize quickly and already have insurance certificates and other documents on file.
- Emergency contractors must be responsible contractors as defined in RCW 39.04.350(1).
- You do not need to obtain bids before starting the project, but it is a good idea to agree on a general plan of work before the contractor starts, including material sources and costs.
- If force account is the only practical way to proceed, meaning that you have not agreed to a cost ahead of time, get the contractor to agree to use Section 1-09.6 of the current edition of the Standard Specifications for Road, Bridge, and Municipal Construction, making sure to tailor it to your agency.
- Your agency should obtain a certificate of insurance as soon as possible, naming the agency as additional insured. If your agency does not have standard insurance requirements, you may use Section 1-07.18 (Public Liability and Property Damage Insurance) of the Local Agency General Special Provisions supplement to the Standard Specifications for Road, Bridge, and Municipal Construction, making sure to tailor it to your agency.
Examples of Emergency Public Works/Purchases
- Auburn Emergency Public Works Procedures, Contract, and Checklist (2007) – General procedures, checklist, and contract template
- Highline Water District Resolution No. 13-6-19A (2013) – Water main relocation in a city right-of-way that was recently vacated
- Port of Everett Emergency Declaration and Waiver of Competitive Bidding Requirements (2015) – Deficient crane cables requiring immediate replacement
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
- Everett Sole Source, Brand Name, and Standardization Justification Forms (2019) – Two separate justification forms to seek sole source competitive bidding exemptions for purchases over $5,000 due to (1) compatibility or technical performance needs and (2) need for specific brand names or product standardization.
- Grant County PUD Sole Source Contract Request (2017) – Interactive Word document
- Port Townsend Sole Source Justification Form (2019)
- Seattle Sole Source Request (2017)
- Shoreline Sole Source Justification Form (2016)
- Sound Transit Noncompetitive Procurement Request Justification Form (2013) – Sole source/proprietary purchase instructions and justification form for purchases using only nonfederal funds; also includes certification of no personal conflicts of interest.
- Spokane County Sole Source Procurement Declaration Request (2018)
Examples of Sole Source Resolutions/Notice
- Des Moines Resolution No. 1219 (2013) – Security camera system expansion
- Port of Pasco Resolution No. 1396 (2015) – Airport parking lot revenue and control system upgrades and services
- Sequim Resolution No. R-2017-11 (2017) – Police and emergency vehicles
- Yakima County Notice of Intent to Sole Source (2017) – Public notice of intent to sole source a contract for policy training software program for the Sheriff's Office. As of 2017, Yakima city/county procurement manual requires public notice of intent to sole source "if time allows."
RCW 39.04.280(1)(d) allows agencies to waive competitive bidding for the purchase of insurance or bonds.
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.
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.
Practice Tip: For auction purchases, the appropriate manager, council, or commission should pre-approve an upper bidding limit for the person doing the bidding.
For real estate auctions, where publicly disclosing the upper limit could cause a likelihood of increased price, we recommend that the legislative body authorize participation in the auction during an open session, establish the maximum price it is willing to pay during a closed executive session (RCW 42.30.110(1)(b)), and then (after the sale) ratify the transaction in an open session.
See the following example:
- Wenatchee Resolution No. 2017-14 (2017) – Authorizes mayor, finance director, and accountant to submit bids on city's behalf to buy a federal property being sold at online auction. Maximum dollar limit was set during executive session under RCW 42.30.110(1)(b) and remains confidential to avoid likelihood of price increase.
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:
- 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
- Olympia Neighborhood Pathways Program Sample Grant Agreement (2014)
- Port of Seattle Airport Community Ecology Fund Invitation for Grant Request (2017) – Invitation for community groups to submit grant requests for projects and programs that make environmental improvements to nearby cities
- Shoreline Community Services Contract Staff Report (2017) – Includes proposed scope of work for trail, vegetation, and environmental restoration work, as well as a cost comparison study showing more than three times the benefit compared to a contractor
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:
- First class cities: RCW 35.22.625
- Second class cities, code cities, towns: RCW 35.23.351
- Counties: RCW 36.32.265
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.