Bidding and Awarding a Public Works Contract
This page provides a general overview of the public works bidding and award procedures for local governments in Washington State, including responsive bids, notices of award, and bid protests.
It is part of MRSC’s series on Public Works Contracts.
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.
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.
Bids submitted after the submittal deadline or at the wrong location should be rejected as non-responsive – in other words, agencies should neither accept nor open late bids. If a contractor claims extenuating circumstances, refer them to your agency’s attorney.
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.
- 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.
- Effective July 1, 2019: 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.
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.
Also see the Mandatory Bidder Responsibility Checklist, originally developed by Mike Purdy for CPARB and updated in 2021 by MRSC, which can be used to document whether a bidder meets the mandatory 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.
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.
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.
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.
Practice Tip: To implement the statutory bid protest requirement, an agency may wish to consider a policy similar to this:
- Only bidders that submitted a bid, subcontractors, or others that can show substantial economic interest in the bid award and who are aggrieved, are eligible to protest. After bid opening, protests are limited to issues related to bid opening, evaluation of bids, and intention to award decisions, and are further limited to those items that were not known or could not have been reasonably known prior to bid opening.
- Within 2 full business days (the equivalent of 16 business hours) after the advertised date and time of bid opening, as amended (Saturday, Sunday, and legal holidays excluded), any party planning to protest must file written notice of such intention with the official named in the bid document for that purpose. If no notice is received by that official within the 2 business days, all eligible protesters will be considered to have waived their right to protest. Notice of intention must stipulate (1) name, address, and phone number of the aggrieved person; (2) the bid number and title for under which the protest is submitted; (3) the grounds for protest.
- After the two business days have passed from bid opening date/time, the agency will proceed as follows.
- If a notice of intent to protest was filed with the City during the 2 days following bid opening, the City may, in the City’s determination, suspend the award decision to allow consideration of the protest before award is made; or declare its intent to award and wait a minimum of 16 business hours (2 business days as defined above) before entering into a contract. Written notice of intent to execute a contract shall be met by either one of the following methods:
- Public posting by the City with a named intent to award indicated on the posted tabulation, made public or accessible to the public by telephone and/or posting on the City internet location designated for bid results; or
- A City Council memorandum request to authorize award to the apparent successful bidder. The first memorandum request that is submitted to Council for work session consideration shall be considered notice of intention to award.
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.
For sample documents related to public works bidding and award, see the following. However, 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
For more sample documents regarding purchasing and contracting, see MRSC's Sample Document Library.
- Capital Projects Advisory Review Board Suggested Guidelines for Bidder Responsibility (2017) – Includes the following information:
- Mandatory bidder responsibility checklist and suggested language
- Subcontractor responsibility checklist and suggested language
- Information about optional supplemental bidder responsibility criteria and checklist for developing supplemental criteria
- Department of Labor and Industries: Contractor Training – Information about the contractor training requirement effective July 1, 2019