rebound

a building trades organization

Always Strong, Always Growing

PROPOSED LEGISLATION

ADDITION OF “RESPONSIBLE BIDDER” DEFINITION

ADOPTED BY REFERENCE TO RCW 39.04 and RCW 39.10

1. What are the current laws or criteria regarding “responsible” bidders?

The laws governing all purchasing by General Administration and all other state agencies currently contains a definition of “responsible bidder” and requires those contracting agencies to determine whether a contractor meets the established definition. This definition is established in RCW 43.19.1911(7) & (9).

The laws governing the award of construction contracts utilizing the small works roster specifically reference the RCW 43.19.1911 and they require public agencies to utilize the criteria established therein to determine if a contractor is “responsible” prior to awarding the contract.

The laws governing job order contracting contain language that establishes those criteria that should be considered by public agencies in determining whether a contractor is “responsible,” and those criteria are highly similar to those contained in RCW 43.19.1911,

The only part of public works contracting and that does not contain either a definition of “responsible” or a reference to RCW 43.19.1911, which establishes the criteria for determining whether a contract is standard public works as defined in 39.04 RCW and implemented in 39.12 RCW. It stands to reason that the law which covers the larger public works projects should also require agencies to exercise the same due diligences as is currently required for purchasing and small works projects, on public works projects of major proportions.

2. Why is it necessary to add references to RCW 43.19.1911?

All too often, contractors are awarded contracts or subcontracts and they are unable to fulfill the terms of those contracts. Had there been a requirement that due diligence be observed in checking a standard set of criteria to determine whether a contractor has demonstrated responsibility, these types of difficulties would be far less likely to occur. This is because contractors who do not meet the established criteria, would not be awarded the public works contracts.

One irresponsible contractor can not only cost the general contractor money as a result of liens that may be filed on bonds or retained funds, but the taxpayers must also bear the burden of the cost of enforcement. Common violations such as failure to pay prevailing wages, license and safety compliance violations, failure to report to industrial insurance, and similar violations all of which require enforcement, add an uncalculated (and generally not included) cost to the project, and the additional expenditures for the enforcement.

3. Why present the legislation in this manner?

Because the legislation simply proposes the adoption by reference of existing laws and applies them to larger public works projects. It does not present a new set of criteria or an unknown amount of additional work for public agencies, but it does create a definition and requirement that was not previously established in the public works act. It is almost as if the absence of a reference to RCW 43.19.1911 in 39.04 RCW was an oversight, since it appears everywhere else in the laws governing public purchasing and contracting.

4. Are there other aspects of this proposed law that will create change?

Yes, but the changes are minimal. There is a requirement added that agencies exercise due diligence in determining whether the established criteria have been met, and there is a requirement that the Director of Labor and Industries adopt rules to implement the procedures for administering this legislation.

By proposing to use criteria that are already the standard requirement for public projects of lesser cost (small works) and purchasing by general administration, we believe that the adoption of this legislation will result in a seamless set of laws, allowing public agencies to apply the same set of criteria to all contractors on all projects, irrespective of contract amount.

6. What are the criteria set forth in RCW 43.19.1911?

(9) In determining "lowest responsible bidder", in addition to price, the following elements shall be given consideration:
(a) The ability, capacity, and skill of the bidder to perform the contract or provide the service required;
(b) The character, integrity, reputation, judgment, experience, and efficiency of the bidder;
(c) Whether the bidder can perform the contract within the time specified;
(d) The quality of performance of previous contracts or services;
(e) The previous and existing compliance by the bidder with laws relating to the contract or services;
(f) Such other information as may be secured having a bearing on the decision to award the contract:

PROVIDED, That in considering bids for purchase, manufacture, or lease, and in determining the "lowest responsible bidder," whenever there is reason to believe that applying the "life cycle costing" technique to bid evaluation would result in lowest total cost to the state, first consideration shall be given by state purchasing activities to the bid with the lowest life cycle cost which complies with specifications. "Life cycle cost" means the total cost of an item to the state over its estimated useful life, including costs of selection, acquisition, operation, maintenance, and where applicable, disposal, as far as these costs can reasonably be determined, minus the salvage value at the end of its estimated useful life. The "estimated useful life" of an item means the estimated time from the date of acquisition to the date of replacement or disposal, determined in any reasonable manner. Nothing in this section shall prohibit any state agency, department, board, commission, committee, or other state-level entity from allowing for preferential purchase of products made from recycled materials or products that may be recycled or reused.

We are happy to respond to any questions or requests for additional information.

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