Ask MRSC - Procurement & Public Works

This may come under the exception to competitive bidding at RCW 39.04.280(1)(b) for “purchases involving special market conditions.” This exception could apply where an agency has to act fast (i.e., not enough time to go through bid process) to take advantage of a good deal that will not be around long, such as when a used vehicle comes on the market. If an agency uses the “special market conditions” exception to competitive bidding, there are certain procedures set out at RCW 39.04.280(2)(a) that the agency must comply with.

For more information, see the section Purchases Involving Special Facilities or Market Conditions on our Competitive Bidding Exemptions page.

While A&E services must be awarded based on qualifications, your agency has flexibility in how an on-call list for A&E services is managed. Here are some approaches that could be considered:

• Direct Selection: Select directly based on qualifications for the specific project without ranking all firms.
• Work Order Competition: Send work order requests to multiple on-call firms and select based on the best firm that also has the lowest cost and/or can meet the requested deadline for the project-specific proposal.
• Rotation System: Adopt rotation policies to ensure equitable distribution.

For more information, see the following MRSC blog post which has a section on on-call A&E contracts: Selecting A & E Services (2017). See also MRSC’s Professional Architecture & Engineering Service Contracts page that includes “A&E Rosters/General On-Call A&E Services” provisions under the Examples of A&E Contracts and Solicitations section.

No state legal authority addresses pre-bid conference requirements directly, so the matter is up to local agency practice. Agencies accordingly differ on this issue, with some requiring pre-bid conference attendance, and others perhaps encouraging it but not requiring it. Each approach has pros and cons.

A potential benefit of requiring pre-bid conference attendance is that it provides an efficient process to address project-related issues and questions and to facilitate bidder commitment to a project.

On the other hand, requiring attendance at pre-bid conferences could cause agencies to lose out on potentially good bidders who may be unable to attend a mandatory meeting.

Although no law prohibits it, MRSC cautions against requiring mandatory attendance at pre-bid conferences. One reason for this is to reduce the potential for challenges or claims by those that do not attend. Consult with your agency’s legal counsel about your specific requirements.

For local government agencies, RCW 42.24.080(1) provides that prepayment (deposit) or advance payment is an option when the “advance payment is due and payable pursuant to a contract or is available as an option for full or partial fulfillment of a contractual obligation.” Therefore, the prepayment provision should be part of the purchase order/contract agreement with the vehicle provider.

We recommend discussing this circumstance with your legal counsel to be sure any issues related to prepayment are considered. For example, we have noted that when an agency prepays before an item arrives at the project site, shipping liability may shift to the agency, and any possible loss or damage while enroute would presumably be the agency’s responsibility to resolve.

We also recommend placing a note or memo in the file explaining why prepayment was necessary.

For public works contracts estimated to cost $2 million or more, RCW 39.04.320 requires the specifications to include the apprentice utilization requirement (AURs) along with the incentives, penalties, estimated cost of compliance, and a requirements adjustment process. (The threshold will be reduced to $1.5 million beginning July 1, 2026 and $1 million beginning July 1, 2028.)

If your bidding documents did not contain the apprentice utilization information, there are two possible options, both of which may have unintended consequences:

1. Reject all bids, add the AUR provisions, and re-bid the project. This would be the conservative and compliant approach and would provide the most transparency and bidding fairness. All bidders should have the same opportunity to bid the cost, etc.
2. Award the contract to the apparent low bidder, then include the AUR requirements, forms, and processes by change order. The required apprentice utilization plan would have to be collected before the project starts and the apparent low bidder checked for responsibility in this area, etc. Pursuing a change order opens up the public agency to pricing that might not be competitive and/or additional costs that otherwise would not have been part of a competitive bid.

We recommend you discuss your options and next steps with your legal counsel.

For more information on this general topic, see our page Apprentice Utilization Requirements for Public Works Contracts.

No, the limited public works process is no longer an option for local government agencies. This process was authorized by RCW 39.04.155, which was repealed and replaced with the new small works roster processes as of July 1, 2024.

The new roster processes are contained in RCW 39.04.151-.152 and do not include any provisions for limited public works. There is, however, a new “direct contracting” option for small works roster contracts estimated to cost $150,000 or less, excluding sales tax.

For more information on the new roster requirements, see our Small Works Roster Manual webpages.

RCW 39.04.152(3) notes “negotiation” as part of direct contracting. If a bid significantly exceeds the estimate, you should attempt to negotiate with the contractor. If some level of negotiation fails to reach an agreement, you may reject the bid and move on to the next rotated contractor. However, we suggest you work to understand why the bid came in so far outside of your original estimate.

For more information on this process generally, see our webpage Direct Contracting for Small Works.

The $2 million threshold applies to the engineer’s estimate that is published with the advertisement, not the actual bids received, and should include all applicable sales taxes.

RCW 39.04.320(i)(a)(ii) states that apprentice utilization requirements apply to “all public works contracts awarded by a municipality estimated to cost $2,000,000 or more...” [emphasis added].

This threshold will be reduced to $1.5 million beginning July 1, 2026 and $1 million beginning July 1, 2028.

For more information on this topic, see our page Apprentice Utilization Requirements for Public Works Contracts.