Selecting Qualified Contractors on Public Works Projects

Legislation adopted by the Washington State Legislature in 2007 established a framework for public agencies to develop supplemental bidder responsibility criteria that are relevant to a particular public works project, and that may be used in determining whether a bidder is responsible and capable of performing the project.

Some public agencies have been using the criteria to unduly restrict the pool of available bidders and, in some cases, to specifically exclude particular contractors from being able to bid who may be otherwise qualified. While the supplemental bidder responsibility law (RCW 39.04.350) provides a good tool for public agencies, it needs to be used appropriately.

To the extent that a public agency is not satisfied with the ongoing performance of a particular bidder, the appropriate mechanism to exclude that bidder from being awarded future projects is through a contractor performance evaluation program that provides the opportunity for the contractor to appeal negative evaluations.

Using supplemental bidder responsibility criteria to exclude a particular contractor from bidding was never the intent of the legislation. The intent of establishing such criteria has always been to ensure that the bidder selected met certain minimum thresholds that would indicate an ability to perform the project. Supplemental bidder responsibility criteria were not intended to describe the ideal contractor for a project.