Is Maintenance a Public Work?

There are a couple of critical questions surrounding the often confusing issues of public works, prevailing wages, maintenance, and ordinary maintenance.

1. Is "maintenance when performed by contract" (RCW 39.04.010) a public work and subject to prevailing wages, or is such work only subject to prevailing wages, but not a public work? The law states that "maintenance when performed by contract" is subject to prevailing wages. That shouldn't be in dispute. But is such maintenance a public work? These are two separate issues and it's important to make a distinction between them, not only because of what the law say, but because whether such maintenance is a public work affects more than just the wages required to be paid. It affects how public agencies bid and award such work. If "maintenance when performed by contract" is also a public work, then such work is subject to all of the bidding and other laws related to all other public works.

It seems to me that both the Washington State Department of Labor and Industries and the courts have inaccurately argued that "maintenance when performed by contract" is a public work. The reason I say they have been inaccurate is because when L&I adopted WAC 296-127-010 and when the Court of Appeals decided what is known as the Wheelabrator case (City of Spokane & Wheelabrator v. Department of Labor and Industries), both of them were focusing on whether "maintenance when performed by contract" was subject to prevailing wages. Thus, L&I, in WAC 296-127-010 defined "public work" as including "maintenance when performed by contract" when what they were trying to make a point of is what work was subject to prevailing wages. The purpose of this WAC is to deal with prevailing wages, not with bidding requirements. They were not focusing on, nor do they necessarily have the expertise on, or jurisdiction over, what the bidding laws should be for maintenance work.

Likewise, the Wheelabrator case dealt with whether a private contractor's employees, performing annual maintenance on a City of Spokane facility run by the contractor, should be subject to prevailing wages even the City paid for the maintenance. In my mind, the Wheelabrator case blurs the issue by stating that the maintenance work in question is a public work and therefore subject to prevailing wages. It seems that the court was only trying to make the case that the work was subject to prevailing wages. In the interest of enforcing what work is subject to prevailing wages, L&I and the courts have not recognized the impact on bidding statutes of making maintenance a public work.

I think L&I and the Wheelabrator case both took this approach because they saw the only way to make maintenance work subject to prevailing wages was to declare it a public work. I disagree as I think the language of RCW 39.04.010 speaks for itself. Not only is the language of RCW 39.04.010 clear in stating that there are two bodies of work subject to prevailing wages ("public works" and "maintenance when performed by contract"), but there is also the provision of RCW 39.12.020 that requires the payment of prevailing wages to building service maintenance employees (janitors) that no one argues is a public work. So it is possible to have work subject to prevailing wages that is not a public work. "Maintenance when performed by contract" falls into this category just like building service maintenance employees.

RCW 39.04.010 doesn't make a lot of sense if you argue that maintenance of any kind is a public work. RCW 39.04.010 defines a public work (in part) as follows: "'Public work' means all work, construction, alteration, repair, or improvement other than ordinary maintenance...All public works, including maintenance when performed by contract shall comply with chapter 39.12 RCW."

Note that in the listing of what is a public work, it doesn't mention that maintenance is a public work. It only states that "ordinary maintenance" isn't a public work. If the Legislature had intended that maintenance was to be a public work, they would have included maintenance in the listing of activities that were public works. The only mention of maintenance is that a certain kind of maintenance ("maintenance when performed by contract") is subject to prevailing wages, just as public works are subject to prevailing wage. The Legislature is silent on maintenance being a public work, only affirming that "maintenance when performed by contract" is subject to prevailing wages.

So how should public agencies respond to this confusing set of facts? Until the Legislature clarifies that "maintenance when performed by contract" is not a public work, but is subject to prevailing wages, I think public agencies should take the conservative approach (following WAC 296-127-010 and the Wheelabrator case) and treat "maintenance when performed by contract" as a public work, from a bidding perspective and recognize that such work is subject to prevailing wages.

2. The second big issue that needs discusssion, but not nearly as much as the first issue above is the distinction between maintenance and ordinary maintenance. This actually seems like an easier question to me. RCW 39.04.010 is clear that "ordinary maintenance" is not a public work. The law, however, doesn't define "ordinary maintenance." WAC 296-127-010 and the Wheelabrator case both seem fairly clear that ordinary maintenance is that work which is performed by public agency employees, and therefore not subject to prevailing wages.