Wednesday, November 19, 2014

What Requirements Still Apply for Emergency Public Works Contracts?

When a public agency has declared an emergency and waived competitive bidding requirements for a public works construction project, what is being waived is the contractor bidding and selection process.  In other words, under an emergency contract seeking bids is not required.  

Not enough time to conduct a bid process:  The nature of emergencies dictates that there is not sufficient time to conduct a bid process without raising the risk that individuals may be injured, property damaged, or that the essential functions of government may not be fulfilled.  The definition of an emergency public work varies by state. In Washington state, it is defined in RCW 39.04.280. 

What is required for emergencies:  The following is a list of some of the requirements that still apply for emergency public works projects.  Generally, only the selection process is waived through the emergency declaration.  While this list is based on Washington state law, portions of it may also apply for other states, depending on their specific requirements:
  • Declaration of emergency:  A formal declaration of an emergency must be made.  See RCW 39.04.280.
  • Bidder Responsibility:   The mandatory bidder responsibility criteria of RCW 39.04.350 still apply for emergency contracts.
  • Contract:  There should still be a public works contract documenting the various requirements and the dollar amount of the project, even if it is for a time and materials, not-to-exceed amount.
  • Prevailing wages:  Prevailing wages must still be paid consistent with the requirements of RCW 39.12.
  • Intent:  A Statement of Intent to Pay Prevailing Wages must be approved by the Department of Labor and Industries and filed with the public agency prior to making any payments to the contractor.  A separate Intent must be completed for the contractor and each subcontractor, regardless of tier.
  • Affidavit:  An Affidavit of Wages Paid must be approved by the Department of Labor and Industries and filed with the public agency prior to making payment of retainage to the contractor.  A separate Affidavit must be completed for the contractor and each subcontractor, regardless of tier.
  • Bonds:  A payment and performance bond must be submitted to the agency for the work, in accordance with RCW 39.08.
  • Insurance:  The amounts and types of insurance required on a public works project are governed by each agency and not by Washington state law. 
  • Retainage:  Retainage should be withheld from each progress payment.  See RCW 60.28.  The only exceptions to not withholding retainage is if a retainage bond is submitted by the contractor or if the contractor was selected through the Limited Public Works process under the Small Works Roster (for public works projects less than $35,000), in which case there would have been no need to waive the competitive bidding process.
Timing of emergencies:  While the above items are still required under Washington state law for an emergency public work, agencies must ensure that health, safety, and property are protected and that an agency's essential functions continue to serve the public.  Sometimes, due to the emergency nature of the project, it is important to get a contractor on the job site immediately, perhaps in the middle of the night, to address the emergency.  In such a case, often some of the paperwork requirements are addressed after the fact. 

Emergency procedures:  Washington state law does not have exemptions for public works requirements on emergency projects, other than for the actual bidding and selection process.  It is important that each public agency have clear emergency public works procedures that will dictate:
  • Compliance:  The timing of compliance with the requirements of state law.
  • Authorization:  Who within the agency is authorized to declare an emergency and waive competitive bidding.  This person or persons should be available at any time, which is why it is often problematic to dictate that only an elected board or council may waive competitive bidding.
Mike Purdy's Public Contracting Blog
© 2014 by Michael E. Purdy Associates, LLC
http://PublicContracting.blogspot.com

Tuesday, November 18, 2014

Receiving and Checking Certified Payrolls on Federally Funded Projects

One of the requirements that comes with federal funding of a public works construction project is the requirement for the public agency to receive and check weekly certified payrolls from the contractor and all subcontractors.  This process helps to ensure that all workers are being paid at least the prevailing wage rate for the classification of labor they performed. 

What should be monitored?  Because the federal Davis-Bacon Act (prevailing wage) requirements are applicable on all federally funded projects, state and local agencies need to have a process in place to ensure:
  • Timeliness:  Payrolls are received in a timely manner.  The Davis-Bacon Act requires that workers be paid weekly, and payrolls must be submitted to the agency weekly.
  • Completeness:  Payrolls must be received for the contractor and all subcontractors, regardless of tier.  This means that public agencies need to have an accurate process for identifying what subcontractors are working on the project.
  • Interviews:  The public agency must conduct field interviews of workers employed by the contractor and subcontractors to collect information on what they state they are being paid.  The results of these interviews must be correlated with the payroll reports submitted to determine if there are any discrepancies between what a worker states he or she is being paid and what the payrolls reflect they are being paid.

  • Review:  Payrolls must be reviewed and monitored on a weekly basis to identify any questions or potential underpayments of prevailing wage to workers.
Audit findings:  The following agencies were recently the subject of audit findings from the Washington State Auditor's Office for failure to collect and monitor prevailing wages on federally funded projects:
Mike Purdy's Public Contracting Blog
© 2014 by Michael E. Purdy Associates, LLC
http://PublicContracting.blogspot.com

Thursday, November 13, 2014

Training: Demystifying Public Works Bidding and Contracting

Demystifying Public Works Bidding and Contracting

When and Where - 8:00 am to 4:30 pm:
  • November 24, 2014 (Yakima, WA, 33 S. 2nd Ave), or
  • December 1, 2014 (Tumwater, WA, 6005 Tyee Dr. SW)
Instructor:  Mike Purdy 

Sponsored by:  WASBO - Washington Association of School Business Officials 

Cost:
  • $200 for WASBO members
  • $240 for non-members
  • Cost includes workshop materials and lunch
Register and more information:  
Mike Purdy's Public Contracting Blog
© 2014 by Michael E. Purdy Associates, LLC
http://PublicContracting.blogspot.com

Wednesday, November 12, 2014

New California Law Unifies Approach to Design-Build

On September 30, 2014, California Governor Jerry Brown signed SB 785, clarifying and consolidating various Design-Build laws for public construction contracts throughout the state.

Use by state and local agencies:  Specifically, the new law provides for uniform Design-Build processes for certain state agencies, cities, counties, and other local contracting districts for projects over $1 million. The law defines a number of common terms, and outlines a standard Design-Build procurement process that includes either selection based on a low bid or a best value approach.  Click here for the legislative analysis of the bill that provides insight into the rationale for SB 785.

Who supported and opposed the bill?  The bill was supported by the AGC of California, some public owners, and the Western Pacific Region of the Design-Build Institute of America. It was opposed by some non-union contractor and subcontractor trade associations.
 
What is Design-Build? Design-Build is a project delivery method that places design and construction services under one contract with a single point of responsibility. Its advantages include reduced project costs, expedited project completion, and better quality due to the integration of design and construction through one firm.  The Design-Build Institute of America (DBIA) has written a Design-Build Done Right Primer that explains key concepts of this project delivery method.

Design-Build nationwide: Rules for use of Design-Build vary from state to state. The Design-Build Institute of America has published a 2013 State Statute Report outlining Design-Build laws in various states.

Managing Design-Build contracts:   Design-Build can be an effective tool for some projects, but it is very important that a public agency selects the right Design-Build partner for the project.  Here are some key guidelines related to the selection process:

  • Think through the selection process carefully up front, including evaluating likely proposers and how the process and point allocation may impact the end result. 
  • Based on the particular project, evaluate the appropriate allocation of points between qualifications/technical merit and price. 
  • Don’t change the selection process mid-stream through the procurement. This can lead to protests and delays for the project. 
  • If the agency does not have personnel with specific Design-Build experience, obtain the services of a qualified consultant to guide the agency though the project.
Mike Purdy's Public Contracting Blog
© 2014 by Michael E. Purdy Associates, LLC
http://PublicContracting.blogspot.com

Tuesday, November 11, 2014

Free Webcast on the Forecast for Construction in 2015

Is the Pace of Construction Investment Set to Quicken?

When:  November 20, 2014 (11:30 am - 1:00 pm, Pacific Time) 

Where:  Your computer 

Description:  Will 2015 see further steady progress, or will it be sidetracked by the likes of material and labor shortages, commodity price surges, further political bickering in Washington or military turmoil in hot spots around the world? 

Cost:  Free 

Speakers:
  • Ken Simonson, Chief Economist, AGC of America
  • Kermit Baker, Chief Economist, AIA
  • Alex Carrick, Chief Economist, CMD
Register now:  Click here.
Mike Purdy's Public Contracting Blog
© 2014 by Michael E. Purdy Associates, LLC
http://PublicContracting.blogspot.com

Sunday, November 9, 2014

Job Opening: Senior Procurement Specialist

City of Vancouver, WA
  • Position: Senior Procurement Specialist
  • Location:  Vancouver, Washington
  • Closing Date:  Open until filled.  First review: December 2, 2014
  • Salary: $55,512 to $72,168 Annually
  • Job Summary:  The person in this position will provide procurement services to City departments by developing and administering contracts, procuring construction services, public works, professional services, materials, supplies, commodities, equipment, and other services. This position will be responsible for developing and implementing procurement training, strategies to increase contractor participation, and procurement process improvements.
  • For More Information and to Apply:  Click here.
Mike Purdy's Public Contracting Blog
© 2014 by Michael E. Purdy Associates, LLC
http://PublicContracting.blogspot.com

Thursday, November 6, 2014

Job Opening: Procurement/Contracts Coordinator

Sound Transit (Seattle)
  • Position: Procurement/Contracts Coordinator
  • Location:  Seattle, Washington
  • Closing Date:  November 17, 2014 at 5:00 pm, Pacific Time
  • Salary: $44,339 to $55,424 Annually
  • Job Summary: The person in this position administers the records management of contract files to the entire Procurement & Contracts Division; Works closely with Legal in responding to public disclosure requests and litigation documentation requests;  Supports the development and distribution of reports and documentation in response to auditor, internal customer and requests from the public; Assists in the development and maintenance of the Division’s HUB, SharePoint Team Site and public facing internet web page; Coordinates and troubleshoots the day-to-day operational needs of the Division; Oversees file management of the Procurement and Contracts Department files contained in the library; Provides back-up in the Systems functions as necessary.
  • For More Information and to Apply:  Click here.
Mike Purdy's Public Contracting Blog
© 2014 by Michael E. Purdy Associates, LLC
http://PublicContracting.blogspot.com