Sunday, May 2, 2010

Can JOC Be Used for New Construction in Washington State?

Can Job Order Contracting (JOC) be used for new construction in the State of Washington?

The answer is yes, no, or maybe - depending on how you choose to understand what appears to be less than clear state law.

RCW 39.10.420 (3) specifically authorizes the use of JOC "for the construction of public works projects for repair and renovation required at public facilities..."  This language would appear to restrict use of JOC to only certain public works projects - those for the repair and renovation of public facilities.

However, the definition of JOC in RCW 39.10.210 is more broad and states that JOC may be used "for public works as defined in RCW 39.04.010."   RCW 39.04.010 describes a public work as "all work, construction, alteration, repair, or improvement..." [emphasis added].  Most people would agree that public works include new construction.

In 2007, the JOC law (chapter 39.10 RCW) was modified.  It is unclear from the somewhat awkward language whether the intent was to restrict JOC to renovation and repair or not:
So what are the options for a public agency authorized to use JOC?
  1. Take a conservative position that RCW 39.10.420 (3) was intended to restrict use of JOC to renovation and repair only.
  2. Take a more liberal position that would argue that the definition of JOC in RCW 39.10.210 permits use of JOC for all public works, including new construction.
There is an apparent conflict within state law that should be resolved with clear language about whether JOC may be used for new construction or not.  Perhaps this is something that the Capital Projects Advisory Review Board (CPARB) will take up as a recommendation to the Legislature for the 2011 session.

Until then, if you are using JOC or plan to use JOC, consult with you attorney to determine what position your agency will take with respect to the use of JOC for new construction.

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