Navigating Intents and Affidavits for Prevailing Wages

When your procurement adventure involves requires prevailing wages (i.e., the minimum hourly wages that must be paid to workers on public works and applicable maintenance contracts), in the eyes of the Washington State Department of Labor & Industries (L&I) your agency becomes an “Awarding Agency.”

As an Awarding Agency, your procurement adventure now includes confirming that prevailing wage filing requirements are met for what are commonly referred to as the “intent” and the “affidavit.” This blog will define intent and affidavit and the distinct filing requirements that an awarding agency should understand and follow when navigating the requirements for each.

Intents

Every contractor and subcontractor on contracts subject to prevailing wages are required by RCW 39.12.040 to file a Statement of Intent to Pay Prevailing Wages (Intent), which should be filed with L&I immediately after the contract has been awarded to the contractor and before work begins, if possible.

This is a unique requirement for Awarding Agencies to navigate because RCW 39.12.040 requires that the Intent for every contractor and subcontractor must be approved by L&I before any payments can be made by a local government. An Awarding Agency should clearly state in their contracts that the Intent must be submitted and approved by L&I before any payments can be made to the contractor.

For public works contracts in excess of $10,000, contractors must post a copy of the Intent (the one approved by L&I) in a location readily visible to workers at the worksite (and this requirement must also be included in the Awarding Agency contract).

However, it is the Awarding Agency’s responsibility to confirm that the contractor and all subcontractors have filed approved Intents prior to making payments on the contract. The Awarding Agency Portal or the Search Prevailing Wages Intents and Affidavits webpage at the L&I website can be used to assist with confirmation.

Affidavits

Every contractor and subcontractor on contracts subject to prevailing wages are also required by RCW 39.12.040 to file an Affidavit of Wages Paid (Affidavit) after the work has been completed. Once this occurs, a local government can release retainage to the contractor between 45 and 60 days after the "completion of all contract work," assuming there are no claims or liens against the retainage (RCW 60.28.011).

The Awarding Agency may not release the retainage until all Affidavits filed by the contractor and subcontractors have been approved by L&I. If no retainage is held, the affidavit should be approved by L&I prior to acceptance and final payment.

Just like with the Intent, this requirement should be clearly stated in the contract, but it is still the Awarding Agency’s responsibility to confirm that the contractor and all subcontractors have filed Affidavits (and that these have been approved by L&I) prior to releasing retainage or making final payments on the contract.

The Awarding Agency Portal or the Search Prevailing Wages Intents and Affidavits at the L&I website can be used to assist with this confirmation as well.

Liability

If the Awarding Agency fails to follows these steps and makes payments to the contractor before the Intent is approved or releases retainage before the Affidavit is approved, it is liable to all workers for the full amount of wages due (see RCW 39.12.042).

Distinct Filing Requirements

An Awarding Agency should also be aware of some distinct filing requirements for contracts under $5,000, unit-priced contracts, janitorial contracts, and job order contracts.

Contracts less than $5,000

For contracts $5,000 or less (including tax) a combined Intent/Affidavit form can be filed through L&I's Awarding Agency Portal and Contractor/Employers Portal with no form filing fee. The online system checks that the contractor is in good standing with L&I and verifies the wage rates being used are at least equivalent to the prevailing wage rates for the classifications the contractor plans to use.

If the combined Intent/Affidavit form is utilized, the Awarding Agency accepts liability for unpaid wages, no subcontractors are allowed, the project must be paid for in a single payment (i.e., there can be no dividing or splitting projects to avoid the maximum dollar limit), and no payments can be made to the contractor until the form is approved by Awarding Agency.

Unit-priced contracts

Unit-priced public works contracts, often used for on-call or indefinite-quantity work, require annual updates to prevailing wage rates. Intents and Affidavits must be filed for each contract year, and retainage can be released annually upon approval of the Affidavits.

Contracts for janitorial services

Janitorial contracts require annual wage updates after the initial contract effective date. Intents and Affidavits must be filed annually, reflecting the prevailing wage rates in effect at the start of each contract year.

Job order contracts

Job order contracts use the issue date of each work order, and Intents and Affidavits must be filed for each work order.

With an understanding of these distinct filing requirements, an Awarding Agency is better positioned to navigate the different contract options available and to confirm that Intents and Affidavits are properly submitted and approved by L&I before proceeding with payments or release of retainage.

Conclusion

Understanding and adhering to Intent and Affidavit requirements is crucial for compliance with prevailing wage laws. These requirements not only confirm workers receive applicable prevailing wages but also protect agencies from audit and financial liabilities. By following the outlined steps and utilizing the tools provided by L&I, Awarding Agencies can smoothly navigate prevailing wage requirements.

The author would like to thank Chuck Ziegert, Industrial Relations Specialist with the Prevailing Wage team at L&I for providing input on this blog.