Legislative Changes in 2021 for Public Works Contracting

The Washington State Legislature recently passed several new laws and made some amendments to existing laws that relate to public works contracting. This blog summarizes these additions and changes.

Design and Procurement of Electric Ferries by Counties

Substitute House Bill 1502 added two new sections to the existing requirements in RCW 36.32, which become effective July 25, 2021.

The first new section permits counties to use additional competitive bidding procedures for procurement and design of electric ferries. A county procuring an electric ferry can consider best value criteria in determining the lowest responsive and responsible bidder and may award one or more contracts from the competitive solicitation.

The new law exempts trade secrets or other proprietary information submitted by such bidders from public disclosure if the bidder specifically states in writing the reason for this protection, and the county agrees that such protection is necessary. In addition, all documents related to a procurement under this act are exempt from disclosure until the notification of the highest scoring finalist is made or the selection process is terminated.

Further, a county is now authorized to include specifications that identify specific equipment and vendors without allowing substitutions when such equipment selections will reduce cost and performance risk. It also requires the Washington State Department of Transportation's Office of Equal Opportunity to establish contract goals for county electric ferry vessel procurement to increase small business participation in ferry vessel procurement.

Finally, a county may designate that the county public works department rather than the county purchasing department be the lead in the procurement process, at their discretion.

The second new section in RCW 36.32 is intended to increase small business participation in electric ferry construction. The Washington State Department of Transportation’s Office of Equal Opportunity has been designated to establish contract goals for county electric ferry procurement. This will be defined as a percentage of the contract award amount. Small businesses intending to benefit from these goals must meet the small business definition in RCW 39.26.010.

Required Subcontractor Listings for Projects over $1 Million

Engrossed Senate Bill 5356 updates a 2020 revision to RCW 39.30.060. At that time, ESB 5457 introduced the requirement to obtain subcontractor lists for structural steel installation and rebar installation within 48 hours of the bid submittal time. However, the change made to RCW 39.30.060 by the 2020 legislation confused many. It was written such that it required the listings for HVAC, electrical, and plumbing subcontractors within 1 hour of bid submittal or the listing for steel and rebar subcontractors within 48 hours of bid submittal. ESB 5356 has clarified that subcontractor listings for HVAC, electrical, and plumbing subcontractors must be submitted within 1 hour of bid submittal and steel and rebar subcontractor listings must be submitted within 48 hours of bid submittal.

Additionally, the legislature has tasked the Capital Advisory Project Review Board (CPARB) with evaluating whether the subcontractor listings should be expanded, and which thresholds and time frames may be most appropriate.

These changes become effective July 25, 2021.

Alternative Public Works Contracting

SB 5032 identifies additional criteria that will be applied to selecting members for the CPARB as well as the duties of board members. It further provides some added descriptions for work relating to alternative public works contracting.

All the alternative public works methods (job-order contracting, design build, and general contractor/construction management) had some procedural amendments initiated through this bill, so we recommend local governments do a careful reading of the revised procedures. All changes took effect on May 10, 2021.

The bill also requires that CPARB develop best practices for increasing and sustaining access to contracting opportunities in alternative public works for minority, women, and veteran-owned businesses, as well as small businesses, and that it report any recommendations for changes to the legislature by June 30, 2022.

Conclusion

It is apparent that more changes are anticipated since the legislature is asking CPARB for a variety of reports relating to local government contracting policy and procedures. Much of the work being initiated seems to support the objective of ensuring that fair and equitable processes are provided in Washington’s procurement laws. We will keep local governments updated on any new information that becomes available as these tasks are completed.