Subcontractor Appeal Process on GC/CM Projects

I think there is a very confusing glitch in RCW 39.10.400 that needs to be fixed by the Washington State Legislature.

The problem relates to the appeal rights of a subcontractor who has not been determined not eligible to bid on a subcontract bid package on a GC/CM project (General Contractor/Construction Manager).

Subsection 1 of the law deals with the hearing process for an owner and GC/CM to establish subcontractor eligibility criteria (essentially a prequalification to bid) when conducting subcontract bidding. It lays out certain time frames (public notice in the newspaper 14 days before the public hearing, protests of establishing criteria must be filed with the court within seven days of the owner's/GC/CM's final determination to establish the criteria).

Subsection 2 deals with the process for determining whether subcontractors meet the eligibility criteria established through the process in subsection 1. It states (in part) the following: "Any potential bidder determined not to meet eligibility criteria must be afforded the opportunity to establish its eligibility. Protests concerning bidder eligibility determinations shall be in accordance with subsection (1) of this section."

What is confusing is the last sentence just quoted above. The law appears to use the phrase "bidder eligibility" to deal with two things: 1) the establishment of the criteria to prequalify, and 2) whether the subcontractor meets the criteria.

If a bidder protests a determination of whether they have met the subcontractor eligibility criteria, what time frames must they do it within? The sentence directs the reader back to subsection 1 for the timing. But subsection 1 only deals with the timing of conducting a public hearing and a protest of whether to establish criteria for prequalification in the first place.

I'm not sure exactly what the intent was in drafting the last sentence of subsection 2, other than the fact that there should be due process afforded to subcontractors who are deemed not to have met the established criteria for being able to bid on a GC/CM project.

My suggestion for clarifying this law is to look back to the concepts of due process in RCW 39.04.350 dealing with an owner declaring that a bidder doesn't meet supplemental bidder responsibility criteria on a public works project. I would delete the last two sentences of subsection 2 of RCW 39.10.400 and replace them with the following:

"If the public body and GC/CM determine that a subcontractor has not met the established bidder eligibility criteria, the public body and GC/CM must provide, in writing, the reasons for the determination. The subcontractor may appeal the determination within 48 hours of receipt of the determination. The public body and GC/CM must consider the appeal and any additional information submitted by the subcontractor before issuing its final determination. If the final determination affirms that the subcontractor did not meet the bidder eligibility criteria, the GC/CM may not execute a subcontract with any other subcontractor until two business days after the subcontractor not meeting the criteria has received the final determination."