Re-cap of 2008 Legislative Session

When it came to legislation affecting public contracting in Washington State, the 2008 Legislative Session was noteworthy for the extremely limited number of bills that passed and became law. In fact, the only one I was tracking that actually made it into law related to concerns arising from the State Auditor’s findings on the Port of Seattle’s construction management and contracting program. SB 3274 passed and makes certain changes related to port districts.

Legislation that did not pass includes the following, some of which will undoubtedly re-surface in the 2009 session, which will be a full session unlike the short one this winter.

Alternative Public Works Contracting: HB 2780, crafted and endorsed by the well-respected Capital Projects Advisory Review Board (CPARB), was a clean-up bill from the 2007 session and fixed some of the problems in the re-authorization of alternative public works contracting. Most of the focus of HB 2780 was on design-build and would have permitted use of some design-build-operate-maintain projects. The bill passed the House, but not the Senate. This bill will likely show up again next year, but with further refinements of the various alternative public works contracting methods (design-build, general contractor/construction manager (GC/CM), and job order contracting).

Expansion of Qualifications Based Selection: ESSB 6235 would have expanded qualifications based selection (not using price as a criterion for selection) to include project and construction management, in addition to the current disciplines covered in RCW 39.80 (architects, engineers, landscape architects, land surveyors). This bill also included a number of issues that were part of port district reform, and did not pass. The bill was supported by the architectural and engineering community, but in my mind would not be in the public’s best interests – public agencies should be able to use price for selecting these consultants. I have a more detailed analysis of the issues surrounding this subject if you’re interested.

Prevailing Wages for Off-Site Prefabrication: HB 2864 passed the House but not the Senate. It would have required public agencies to collect data about off-site prefabricators prior to acceptance of a public works project. The issue stems from the fact that in Washington State prevailing wages must be paid for off-site prefabrication of materials for a public works project if the materials are not standard, off-the-shelf items, but are specifically fabricated for the public works project. The applicable wages are those in the county where the product is prefabricated. A number of fabricators have moved their operations to Idaho and Oregon, just across the Washington state line in order to avoid having the pay prevailing wages and thus be more competitive. This practice has labor unions particularly concerned as it is putting firms out of business who are not able to compete with low wages paid across state lines. In addition, the state is losing tax revenues.

Trench Excavation: HB 2009 was a hold-over bill from the 2007 legislative session and was crafted by CPARB. It would have eliminated the requirement for listing the dollar amount for trench excavation safety shoring on the bid form. Failing to get any traction this session, this bill got buried, and didn’t pass either house. Look for it again next year when hopefully support for it can be shored up.

Fees for Intents and Affidavits: HB 2942 would have increased the filing fee for a Statement of Intent to Pay Prevailing Wages and an Affidavit of Wages Paid from $25 to $40. No one was willing to put any money on this bill and it didn’t pass either house.

Veteran’s Preferences: HB 2210 passed the House but not the Senate. It was a poorly written and confusing to implement piece of legislation that would have required certain percentages of public contracts to be awarded to veteran owned businesses and would have created a certification process for such businesses. The bill is becoming a veteran in Olympia, having been introduced in 2007 originally and it may make another appearance in 2009.

Mike M. Johnson: While there was a lot of discussion between public owners and the Associated General Contractors (AGC) on this issue stemming from a Washington State Supreme Court decision, the AGC chose not to introduce any legislation this session, instead engaging in dialogue with owners to develop a consensus and compromise bill that both parties could live with. Hopefully, the dialogue will continue and the parties can reach a consensus before the next session. AGC has all but given notice that they will introduce some bill in the 2009 legislative session.

There were a host of other bills that did not pass including those related to bid limits for cities and counties (HB 3030), living wages on public contracts (HB 2853), and OMWBE (HB 2925).

If you know of important bills affecting public contracting (public works, consultant, architectural or engineering, or procurement of goods and supplies) that passed during the 2008 Legislative session, please let me know.