Old Retainage Laws Still on the Books

If you look at the Revised Code of Washington (RCW) related to retainage and prompt pay on public works projects in Washington State, you will note there are a couple of sections that appear to address the same subjects, but have different numbers and slightly different content.

RCW 60.28.010, 60.28.020, 60.28.050, and 39.76.010 only related to public works contracts entered into prior to September 1, 1992. In other words, they're not applicable any longer. If you try to apply these laws today, you'll find yourself out of compliance with state law. RCW 39.04.901 describes how the application of the old and new laws.

The correct versions that you should be reading and applying are RCW 60.28.011, 60.28.021, 60.28.051, and 39.76.011. These are for public works contracts entered into after September 1, 1992.

Unfortunately, these older laws haven't officially been repealed. After more than 15 years, it's probably time to request that the Legislature repeal these old laws and clear up the confusion. The Industry-Wide Subcommittee of the Capital Projects Advisory Review Board (CPARB) has identified this as one of their priority issues for the 2009 Legislative session. Hopefully, the legislation will pass and it won't get lost in the shuffle of other more controversial legislation.

If you have any questions about the application of these correct laws, drop me an e-mail or call me.