Effective July 1, 2019, any contractor that intends to submit a bid to perform work for a government agency on a public construction project (i.e. public work), must be able to demonstrate compliance with recent changes to bidder responsibility criteria.
In 2018, the Legislature passed ESSHB 1763, which changed the bidder responsibility requirements set forth in RCW 39.04.350 and RCW 39.06.020 to require business to undergo training prior to bidding or working on a public works construction project.
Although the changes were originally approved in 2018, the statutory revisions and implementation were delayed until the training program details and registration or verification process could be finalized.
Under the revised statute, beginning July 1, public agencies will now be required to verify that each contractor submitting a bid to perform work on a public construction project has received training on prevailing wage and public works requirements or that the contractor is exempt from this training requirement. To be considered exempt, the contractor must have completed three or more public works projects and have had a valid Washington business license for three or more years. The Washington State Department of Labor and Industries (L&I) was tasked with the responsibility of keeping records of entities that have satisfied the training requirement or are exempt from training for reasons noted above. L&I is also responsible for proving the training for contractors that are not exempt.
Although the statute is silent as to whether the agency must affirmatively request information regarding compliance as part of the solicitation, the statute is clear that compliance with the training requirements or exemption status must be demonstrated by the contractor to be considered a qualified bid. In other words, this verification is required by the public agency prior to awarding a contract for prevailing wage and public works projects on or after July 1, 2019. Failure to provide this information or meet this requirement will result in a bidder being unqualified and/or their bid nonresponsive.
Due to the immediate effectiveness of the change, there is some uncertainty as to how to treat pending solicitations that will be released or awarded after the change deadline. Contracts that are awarded and started before July 1, 2019 and continue after that date will not be subject to this training requirement. However, for contracts that were solicited before July 1, but will be opened or awarded after July 1, the contractors should be prepared to demonstrate compliance with the changes (even though it may not have been part of the initial bid responsibility).
Although there is no affirmative obligation in the statute, to better help contractors submit qualified bids, agencies are encouraged to update language in their solicitations to reflect this bidder responsibility change. They are also encouraged to update language in contracts awarded following such solicitations. RCW 39.06.020 states that verification requirements and responsibility criteria must be included in every public works contract and subcontract of every tier. Additionally, and pursuant to the requirement in RCW 39.06.020, a public works contractor must verify responsibility criteria for its first-tier subcontractors. A subcontractor of any tier hiring other subcontractors must verify responsibility criteria for each of its subcontractors. Subcontractors must meet criteria responsibility at the time of subcontract execution. In other words, the changes apply to all contractors at any level.
Contractors (including subcontractors) that have or will perform work for public entities will want to verify their compliance status or complete the required training as soon as possible. The verification can be confirmed through the L&I website. If training is required, L&I offers free training both online and at local sites throughout the state.
Julie K. Norton is a member at the Wenatchee law firm Ogden Murphy Wallace, where her practice emphasizes municipal law, employment law, healthcare law, land use and development (including real estate transactions), general civil litigation and general business law. She graduated cum laude from the Seattle University School of Law.