Proposed Change in Definition of "Public Works"

Senate Bill 6235 has been introduced in the 2008 session of the Washington state Legislature. The bill is in response to the critical audit of the Port of Seattle conducted by the Washington State Auditor's Office. Among other things, the bill would expand the definition of "public works" to include consultant, architectural, engineering, and service contracts. The following is a quick analysis of some of the impacts of the legislation:

• All consultant contracts would need a payment and performance bond.
  
• If such bonds are even available in the market, it would increase the cost of these projects as consultants had to cover these costs. The relationship between the performance bond and professional liability insurance is unclear.
• Retainage would need to be withheld on every consultant contract, and agencies would need to establish a final acceptance date for every consultant contract.
• Claims could be filed against the bond and retainage by sub-consultants.
• Retainage could not be released until the deadlines outlined in RCW 60.28.
• Prevailing wages would apply to all consultant services. L&I has not established wages for professional services and establishing such wage rates would be very problematic.
• All consultant work would need to be bid and awarded to the lowest bidder instead of selecting based on qualifications and price in some instances.
• The draft legislation conflicts with RCW 39.80 that requires that architects, engineers, landscape architects, and land surveyors be selected based on the "most qualified" firm. Under the proposed legislation, the work would need to be bid and awarded to the lowest bidder - a direct conflict with RCW 39.080.