What is a Public Work?

What is a public work? And what work is subject to the payment of prevailing wages?

There's a lot of confusion about the answers to these questions and what Washington State law has to say. Let me try to clarify a few of the issues.

RCW 39.04.010 (4) states in part the following: "Public work" means all work, construction, alteration, repair, or improvement other than ordinary maintenance, executed at the cost of the state or of any municipality, or which is by law a lien or charge on any property therein. All public works, including maintenance when performed by contract shall comply with chapter 39.12 RCW.

From this definition, we see that a public work includes:

• Construction
• Alteration
• Repair
• Improvement

According to the RCW, "Ordinary maintenance" is not a public work.

So what is "ordinary maintenance"? Ordinary maintenance is defined in the Washington Administrative Code (WAC 296-127-010 (7)(b)(iii)) to mean work performed by employees of a public agency. It is defined "as work not performed by contract and that is performed on a regularly scheduled basis (e.g., daily, weekly, monthly, seasonally, semiannually, but not less frequently than once per year), to service, check, or replace items that are not broken; or work not performed by contract that is not regularly scheduled but is required to maintain the asset so that repair does not become necessary." The only such work not performed by contract is work done by an agency's employees.

Even though the RCW cited above is very clear that "ordinary maintenance" is not a public work, the Department of Labor and Industries, in adopting WAC 296-127-010, I believe exceeded their authority in adopting the WAC by attempting to directly change the statutory definition of a public work. In WAC 296-127-010 (7)(a)(iv), L&I states that "the term 'public work' shall include...maintenance, except ordinary maintenance as defined by (b)(iii) of this subsection, when performed by contract."

The problem with this attempt to include "maintenance" as a public work is that the RCW does not define maintenance as a public work. What RCW 39.04.010 does say, as cited above, is that there are two classes of contracts subject to prevailing wages: 1) public works, and 2) maintenance when performed by contract. But there is a difference between whether something is a public work and whether it is subject to prevailing wages. The Department of Labor and Industries, in adopting WAC 296-127-010 did so under their authority to define prevailing wage regulations for which they have jurisdiction. It doesn't seem to me that they have jurisdiction to define, or re-define in contradiction to the RCW, what a public work is and isn't. It is clear that "maintenance" is subject to prevailing wages, but by statute is not a public work. Maintenance just isn't in the list of items in RCW 39.04.010 for what a public work is (construction, alteration, repair, improvement).

It makes a difference for a public agency how to treat a project from a bidding perspective and whether it is a public work or not. Maintenance is not a public work, but is subject to prevailing wages. Ordinary maintenance is not a public work and is not subject to prevailing wages. A public work (construction, alteration, repair, improvement) is a public work and is subject to prevailing wages.

Where this whole discussion continues to be confusing is categorizing a whole host of specific contracts to determine whether it is a public work and is subject to prevailing wages.

I'll write more on this soon. In the meantime, if you have specific types of contracts that you wonder about how to handle, I'd be interested in hearing your questions. One of the more problematic areas, that I haven't addressed here, is various types of service contracts. More later...