Clarifications for Filing the Notice of Completion
This year, I have been fortunate to travel around the state as part of the team conducting in-person training for local government as part of our Digging into Public Works project. An element of these training sessions has been scheduling time after the training to meet with attendees individually to answer their agency-specific public works questions. In each session, a topic started consistently coming up, leading me to think it was more than coincidence. This week, I was also included in an online group discussion with procurement peers around the state that centered around this same topic: filing the Notice of Completion (NOC) for public works contracts.
This is not a random coincidence, and the pattern of questions on this topic led me to create this blog in order to provide further clarification to the NOC filing process, specifically around both Purchased Services and Public Works Contracts.
The NOC process is required after final acceptance of any public works project over $35,000 in order to release retainage.
A local government agency must file a Notice of Completion form with the state’s Department of Revenue (DOR), Department of Labor and Industries (L&I), and Employment Security Department (ESD) (see RCW 60.28.051).
DOR, L&I, and ESD must approve the NOC form separately, at which point each agency will send a certificate of release certifying that all applicable taxes, premiums, and penalties have been paid. If DOR, L&I, or ESD report that there are unpaid taxes or fees, the agency must pay the missing amount to the state within 10 days and subtract it from the retainage.
While this process is outlined in the statute for public works contracts, historically it can be unclear whether purchased service contracts over $35,000 that require prevailing wage also need to file a NOC.
Purchased Service Contracts
Even though some purchased service contracts require prevailing wages to be paid, and the contract may be over $35,000, a NOC is not required for maintenance contracts, as these do not include any public improvement.
For example, purchased services for building maintenance like janitorial (cleaning, emptying wastebaskets, window washing) or HVAC maintenance (cleaning, adjustments, lubrication) do not improve the property and only maintain it. Since this type of service is not a public improvement contract, a NOC is not required.
However, there can be a fine line between a purchased service and public works contracts, so you should look carefully at the scope of work for a service contract to determine the contract type. If the scope of work involved changes from purchased services to public works, then the contract would require a NOC.
One such example of a shifting scope of work could involve a contract for landscaping. When the work is limited to mowing, weeding, and raking — i.e., maintenance — it is a purchased service subject to prevailing wages and no NOC is required. However, when the work includes activities like digging and planting, it becomes a public works subject to both the public works bid laws as well as prevailing wage, and a NOC is required if the project is over $35,000.
Public Works Contracts
A NOC is required for all public works contracts over $35,000.
Even when retainage is waived, a NOC is required for public works contracts over $35,000 since a local government waiving retainage is then responsible for all wages and taxes that should be paid.
Unit Price contracts bear special consideration. While a local government may choose to release retainage either on an annual basis or at the end of the contract annual closeout, intents and affidavits for prevailing wages paid must be submitted annually for all work completed during the previous 12 months. Since an agency is required to file intents and affidavits annually, MRSC recommends filing the NOC annually as well, as the completion process will align with the completed affidavit of wages paid, and this alleviates the need for contractors to wait on retainage amounts until the end of a multi-year contract. When filing a NOC annually, an agency should include information on the year of the contract (“Year 1”, “Year 2”, etc.) in the Description of Contract field of the NOC form.
Filing a NOC is only required for all public works contracts over $35,000. Filing a NOC is not required for purchased service contracts over $35,000 but be sure that the scope of work proposed in your contract has not inadvertently changed the type from purchased services to public works.
Author’s note: I’d like to thank the DOR Public Work Contracts team that approves NOCs for providing input on this blog.
MRSC is a private nonprofit organization serving local governments in Washington State. Eligible government agencies in Washington State may use our free, one-on-one Ask MRSC service to get answers to legal, policy, or financial questions.