City of Everett Denied Request to Use Design-Build

The State of Washington's Project Review Committee (PRC) on July 22, 2010, denied the application of the City of Everett to use Design-Build as a project delivery method for a new Municipal Court building.

The City of Everett had been seeking approval to use Design-Build for one of the ten projects permitted under state law [RCW 39.10.300 (5)] for projects between $2 million and $10 million.  To read a copy of Everett's application to the PRC, click here. 

What Does the PRC Look For?:  The PRC is charged under state law (chapter 39.10 RCW) with reviewing applications from public agencies wanting to use either Design-Build or General Contractor/Construction Manager (GC/CM) as a project delivery method.  The PRC looks carefully at both the project and whether it is appropriate for the particular delivery method, and whether the public agency has the appropriate staff with knowledge of the delivery method as used in Washington State.  Staff may be through in house staff or through consultants. 

Everett Pursues Project with Design-Bid-Build Process:  After the City of Everett was denied permission to use the Design-Build process, the City announced its intention to pursue the project using the traditional Design-Bid-Build contracting process.  On July 30, 2010, the City advertised in the Seattle Daily Journal of Commerce newspaper seeking qualifications from architectural/engineering firms for the design of the facility. Qualifications are due to the City on August 24, 2010.

Tough New Louisiana Laws on Corrupt Contracting Practices

Louisiana has adopted two new laws designed to keep individuals and companies convicted of certain crimes from participating on public contracts.

DEBARMENT FOR CRIMINAL ACTIVITY:   

House Bill 1292, which became effective on July 7, 2010, applies to public works contracts, and establishes a two-tiered system of crimes with different sanctions.  

The law applies to any individual or company who is convicted, pleads guilty, or pleads nolo contendere (a plea of no contest) to various listed crimes.  It applies to both how state law defines these crimes and to comparable federal crimes.

• Permanent Debarment:  The following four crimes would result in permanent debarment from public contracting:  public bribery, corrupt influencing, extortion, or money laundering. 

• 5 Year Debarment:  The following nine crimes would result in a five year debarment or bidding on public projects, "from the date of conviction or from the date of the entrance of the plea of guilty or nolo contendere":  theft, identity theft, theft of a business record, false accounting, issuing worthless checks, bank fraud, forgery, misapplication of payments, malfeasance in office.  The five year prohibition on public contracting would only apply if the crime was committed during the solicitation or execution of a public contract or bid.

Enforcement:  Bidders will be required to attest with their bid that they have not been convicted of any of the mentioned crimes.  Public agencies are not required to investigate the truthfulness of a bidder's statement.  Other parties may present evidence to the public agency that the bidder has made false statements concerning any crimes.

Cost Penalty for False Statements:  If a complaint by another bidder is found to be true and the public agency must re-advertise or cancel the project, the bidder making the false statements is responsible for increased costs to the agency including the cost of rebidding, additional costs due to increased cost of bids, and any delay costs associated with the rebid or cancellation of the contract.

CONTRACT NULLIFICATION:

Louisiana Senate Bill 720 becomes effective on August 15, 2010 will nullify any public contract "entered into as a result of fraud, bribery, corruption, or other criminal acts, for which a final conviction has been obtained."  The person convicted of such crimes is "responsible for payment of all costs, attorney fees, and damages incurred in the rebidding of the contract."

ADDITIONAL INFORMATION:  Click here to read a news article on Louisiana's new laws from www.nola.com.

WASHINGTON STATE:

In 2007, the State of Washington adopted mandatory bidder responsibility criteria that must be verified by public agencies prior to the award of a public works project.  

RCW 39.04.350 also enables public agencies to adopt relevant supplemental bidder responsibility criteria, either specific to one project, or generic for all projects.  

The Capital Projects Advisory Review Board (CPARB) has adopted Suggested Guidelines for Bidder Responsibility to help guide public agencies and contractors in understanding and implementing the law.  Included in the Suggested Guidelines for Bidder Responsibility are a number of criteria that public agencies may choose to use on some or all public works projects.  Some of the following suggested supplemental bidder responsibility criteria address issues raised by the new Louisiana laws:

1. Delinquent State Taxes
2. Federal Debarment
3. MWBE Participation on Federal Projects
4. Apprenticeship
5. Public Bidding Crimes
6. Subcontractor Responsibility
7. Claims Against Retainage and Bonds
8. Completion of Similar Projects
9. Termination for Cause
10. Lawsuits
11. Prevailing Wages

CPARB has created a Task Force to help public agencies and contractors come to a common understanding of how to develop and implement supplemental bidder responsibility criteria.  The next meeting of the Task Force will be in the next couple of months.

Workshop on Consultant Selection

Help Build Your Extraordinary Future (Projects) by Selecting Extraordinary Consultants Now

When:  Tuesday, October 5, 2010 (9:00 a.m. to 3:30 p.m.

Where:  Wenatchee, Washington (Convention Center)

Sponsored by:

• American Public Works Association (Washington State Chapter)
• American Council of Engineering Companies of Washington (ACEC Washington)
• Municipal Research and Services Center (MRSC)

Cost:  $50

Topics to be Covered: 

• Understanding qualifications based selection principles and practices
• Appropriate and inappropriate evaluation criteria
• Appropriate and inappropriate selection processes
• How different project complexities, type, and dollar volume affect the selection process
• How can shared rosters best be utilized

Presenters and Panel Members:

• Art Louie, Snohomish County
• Jim Doherty, MRSC
• John Carpita, MRSC
• Sheila Harrison, GHD
• Bill Garrity, ACEC
• Jan Olivier, Kittitas County
• Bob Giberson, City of Tukwila
• Jeff Monsen, CRAB
• Sam Yaghmaie, Harris and Associates
• Dan Dawson, Otak
• Tom Zerkel, Gray and Osborne
• Ellen Hutchinson, MRSC
• Tom Skillings, Skillings and Connolly
• Ingrid Gaub, City of Auburn

For more information and to register, visit APWA's website.

Contract Language Now Available: Reporting Use of Off-Site, Prefabricated Items on Public Works Projects

The Washington State Legislature approved Engrossed House Bill 2805 during the 2010 legislative session requiring reporting on the use of off-site, prefabricated, non-standard, project specific items for public works projects.

Click here to read my previous blog entry outlining the details of this new law.  

New Contract Language Available:  One of the provisions of the new law is that the Department of General Administration (GA) is required to provide suggested contract language for public agencies in the State of Washington to use in their public works contracts.  GA has now published their suggested language.  It may be found by visiting GA's website, and clicking on the link under "Contractors" for "Off-Site Prefabricated Language (HB 2805).

Two Comments on the Suggested Contract Language: 

1. Website Address Missing:  Under the Contractor Responsibility Requirements section, a website address reference is missing.  At the end of the first paragraph, after the phrase "...and available on CPARB's website at," you should insert CPARB's actual website address:  http://www.ga.wa.gov/CPARB/index.html.
   
   
2. Subcontractor Reporting Section Not Necessary:  The language includes a section at the end for optional Subcontractor Reporting Sanction.  I don't think this language is necessary for the following reasons.  EHB 2805 adds to the list of mandatory bidder responsibility criteria a new criterion that the bidder has not been found to be out of compliance with the Off-Site reporting requirements.  Subcontractor responsibility requirements from RCW 39.06.020 reference all of the mandatory bidder responsibility criteria of RCW 39.04.350 (including this new one on Off-Site reporting violations).  Thus, a subcontractor in violation of the Off-Site reporting requirements is automatically not a responsible subcontractor, something the contractor is required to check and validate.

I've contacted GA about these two comments and am not sure if they will be making changes in their suggested language or not.

Effective Date:  The new legislation is effective for all contracts entered into from September 1, 2010 through December 31, 2013.  It applies only for public works projects estimated to cost over $1 million.  It does not apply to WSDOT projects, nor to "local transportation public works projects."

Action Items:  Public agencies must include contract language in their contracts.  Contractors must report on "Off-Site, Prefabricated, Non-Standard, Project Specific Items" manufactured outside of the State of Washington.  The reporting mechanism will be through the Affidavit of Wages Paid form.

Questions:  Please contact me if you have any questions about this new legislation. 

3 Year Jail Term for Federal Contracting Officer

A former contracting officer for the federal Bureau of Land Management (BLM) in Medford, Oregon was sentenced on July 12, 2010 to three years in prison for his role in a contracting scandal in which he cheated the BLM out of almost a half million dollars over a four year period.  Rameriz was also ordered to repay the agency $481,602.47.  Rameriz retired from BLM in 2007 after 31 years with the agency.

Ramirez's son, Evan, was also sentenced on the same day for his role in the scandal.  He received three years probation, and was ordered to pay $6,988 in restitution to BLM.

To read my earlier blog posting from April 22, 2010 when Ramirez pleaded guilty, click here.

Job Opening: Purchasing Manager for Snohomish County (WA)

Snohomish County (Washington)

• Position:  Purchasing Manager

• Summary of Duties: Manage Snohomish County's Purchasing Division, including the oversight and coordination of all purchasing related activities throughout the county.  Develops processes for the procurement of supplies, materials, equipment, common services, professional services and public work.

• Salary:  $5,966.87 per month to $8,431.51 per month, plus benefits

• Closing Date:  Friday, July 30, 2010

• For More Information and to Apply:  Visit the Snohomish County website

Mismanagement of School District Credit Cards

The Washington State Auditor's Office recently issued an audit finding on weaknesses in the Seattle School District's management of District issued credit cards.  The June 21, 2010 audit report covers activity during 2009.

Issues noted in the audit finding include the following:

• Late Fees:  The District was assessed with late payment fees for failure to pay the credit card bills on time.  There were inadequate records by cardholder to track the late fees.  In addition, the District charged the late fees to an "other supplies" account, rather than to an account to track penalties and fees.
• No Receipts:  Receipts for three credit card transactions totaling $5,172 were not in the file.
• Inappropriate Use of Cards:  In violation of the District's policies, the audit found instances where the credit cards were used to pay for hotel and food.
• Authority to Use Cards:  The audit found that not all employees issued a credit card had signed the required "Memorandum of Understanding" outlining the permitted uses and expectations for cardholders.  In addition, some cards were issued to departments, rather than individuals, raising questions about who is responsible for the cards.
• Non-Compliance with Dollar Limits:  According to the audit report, "District personnel may charge up to $1,000 per procurement card transaction and make up to five transactions each day.  Five transactions we examined were over the $1,000 limit." 

Issues Not Resolved From Prior Years:  In the auditor's 2005 and 2006 audit reports, the auditor "communicated weaknesses in procurement card controls to District management and emphasized the need to monitor credit card charges to prevent noncompliance with District policy."  The District has apparently not resolved the issues.

Audit Report:  Click here to read the audit report and finding, on pages 23 and 24.

Lessons Learned:  Government issued credit cards are an effective procurement tool.  However, they must be managed and monitored carefully by supervisors and managers, consistent with an agency's established policies and procedures.  Without such monitoring, they can be subject to abuse.  Other public agencies often find themselves in the headlines when it is revealed that agency credit cards have been used for purchasing personal items for government employees.

Conduct A Pre-Audit:  If your agency currently uses credit cards, you should consider conducting your own pre-audit of your compliance with your own policies.  Do you have the necessary systems in place to monitor the usage of the cards?  If you would like assistance in either structuring a pre-audit that you can conduct, or having me conduct such a pre-audit, please contact me.

Should a Bid Guaranty Be Required When Selecting a GC/CM?

Bid guaranties are typically required on all public works projects.  The purpose of a bid guaranty is two-fold.  First, they serve as a disincentive for bidders to submit frivolous bids.  Second, they compensate a public owner for additional costs in the event the low bidder refuses to enter into a contract.

How GC/CMs Are Selected:  Under a GC/GM (General Contractor/Construction Manager) model of contracting for public works, at least as practiced in the State of Washington, the GC/CM is selected based partially on their qualifications and approach, and partially on certain prices (overhead, profit, general conditions) that are competitively bid.  Most agencies in the State of Washington will also include and evaluate an interview with shortlisted firms as part of the selection process.  The actual cost of construction is negotiated between the selected contractor and the public agency once the construction documents are at least 90% complete.  See chapter 39.10 RCW for more information.

Frivolous GC/CM Proposals Unlikely:  It is highly unlikely that a contractor will submit a frivolous proposal as part of a GC/CM selection process.  Proposals cost contractors thousands of dollars to prepare.  In the event a frivolous proposal was submitted, it would not be rated high enough to be considered further.  This is unlike what occurs with regular competitive bidding where all a contractor has to develop is a price, which may or may not be carefully thought through.

Purpose of GC/CM Bid Guaranty Unclear:  In addition, because the cost of construction under GC/CM is negotiated and not bid, the purpose of a bid guaranty is not clear.  

• How would a public agency actually be able to collect on a bid bond under a GC/CM project?  
• A bid bond guarantees that the bidder will, if awarded the project, enter into a contract with the owner.  But because the construction cost is negotiated in a GC/CM project, there is no guaranty that the parties will actually be able to successfully negotiate a price and execute a contracct.  
• How would a bid bond even be written for a GC/CM project?  Bid bonds are typically for 5% of the amount bid, but because there is no bid amount (other than for overhead, profit, and general conditions), this is problematic.

Limited Bid Guaranty?  Perhaps you could argue that a bid guaranty is appropriate for holding the contractor to their overhead, profit, and general conditions costs.  GC/CM selection documents should require that the contractor hold these prices through the negotiation process.  If a contractor, for whatever reason, doesn't want to successfully conclude negotiations of the Maximum Allowable Construction Cost (MACC), there are many avenues they can pursue, even if there was a bid guaranty.  

GC/CM is Not Low Bid:  GC/CM contracting is a very different model from low bid.  The whole intent of the GC/CM selection process is for public agencies to find a contractor they can work in partnership with.  The purpose of a bid guaranty, as required for most public works projects, doesn't make sense for GC/CM contracting.  If you have a different perspective on this issue, I'd love to hear from you.

Parting Company with a Contractor

There are a variety of actions a public agency may take that have the effect of parting company with a contractor, either before or after a contract has been executed.

Prior to Award:

• Math Error in Bid:  In the event a bidder makes a mathematical error in its bid, especially for a unit price bid, most bidding documents provide that the owner may and should make corrections, with the unit price taking precedence over the multiplication of the unit price times the estimated quantities, and the owner's summation of the unit price extensions taking precedence over the contractor's summation of the items.  In the event such corrections are made, the bidder who may have been identified as the low bidder at bid opening may no longer be the low bidder.

• Claim of Error:  After bid opening, a bidder may discover that they have made an error in their bid, especially as they compared their bid price to those of the other bidders.  There are generally two types of claims of errors, those relating to clerical or administrative errors, and those relating to errors of judgment.  In a claim of error, the bidder requests to be relieved of their liability for their bid.  If the owner accepts the claim of error, the bid would no longer be considered.  There is no negotiation of the bid price that is permitted through a claim of error.
  
  
• Non-Responsive Bid:  After bid opening, once the bids have been evaluated by the owner, the owner may determine that the bid is non-responsive, meaning it did not respond to the requirements of the bidding documents.  Common reasons for non-responsive bids include bids submitted after the deadline, unsigned bids, and failure to submit a sufficient bid guaranty with the bid.  Bids with irregularities that are material (those that give an advantage or benefit to the bidder not enjoyed by other bidders) must be rejected by the owner as non-responsive, while those bids with immaterial irregularities may be accepted or rejected at the owner's discretion.

• Bidder Not Responsible:  A bidder with a low responsive bid may be rejected by an owner for not being a responsible bidder, or not having the capabilities or qualifications to perform the project.  Bidder responsibility standards vary by jurisdiction, but generally there should be responsibility criteria that are included in the bidding documents to put the bidder on notice of how they will be evaluated.  Such bidder responsibility criteria should be relevant and to the extent possible, fairly objective, although there is disagreement often between owners and contractors about this.

After Award, But Prior to Contract Execution:

• Revocation:  At times, an owner may revoke an award before the contract has been executed.  Reasons why this may occur include the contractor failing to execute the contract or provide the required bonding and insurance, a protest filed by another bidder, or a change in direction or funding for the project.

After Contract Execution:

• Termination:  There are two primary types of termination:  termination for cause and termination for convenience.  Termination for cause carries with it an additional burden of proof by the owner, and may be disputed more intently by a contractor than termination for convenience. 

Bidding Webinar:  I will be teaching a 60 minute Webinar on bidding issues on August 12, 2010.  For more information and to register, visit the website of Government Educator.

Are You Reporting Public Works Projects Over $5 Million to Washington State's CPARB?

If you're a public agency in Washington State, you are required to report certain data on public works projects over $5 million to the Capital Projects Advisory Review Board (CPARB).

Applies to All Public Works Projects:  This data collection requirement is part of CPARB fulfilling a legislative mandate, and includes not just Alternative Public Works projects (Design-Build, GC/CM, and Job Order Contracting) that many people typically associate with CPARB, but includes traditional Design-Bid-Build projects as well.

Amount and Date Thresholds:  The reporting requirements apply to all Alternative Public Works projects and traditional public works projects which:

• Total over $5 million, and
• Have a design contract or design-build contract in place after June 2005

Reporting at Start and Finish of Projects:  Public agencies should have started the reporting process as of October 1, 2008 by completing the online survey that consists of two parts:

• Part 1 - Planned project information should be entered near the beginning of the project.
• Part 2 - Completed/actual project information to be entered at the completion of the project.

More Information:  For more information public agencies should contact David Edison at David.Edison@ga.wa.gov with the following information in order to receive login information:

• Agency
• Project Name
• Project Contact Name
• Phone number
• E-mail address

CPARB Website:  For more information, you can also visit CPARB's website on data collection.

8 Most Expensive State Construction Projects

Here's an interesting list of the 8 most expensive state construction management projects.  Click here to read the blog posting with more details from www.constructionmanagementschools.net.

1. The Big Dig - $22 billion
2. San Francisco-Oakland Bay Bridge, East Span Replacement for Earthquake Safety - $6.2 billion
3. Mon-Fayette Expressway - $5.4 billion
4. Ohio River Bridges Project $4.1 billion
5. Interstate 69 in Indiana - $4 billion and counting
6. Central Texas Turnpike System - $3.6 billion
7. Woodrow Wilson Bridge Project - $2.5 billion
8. I-95 New Haven Harbor Crossing Corridor Improvement Program - $2.2 billion

When Do Prevailing Wages Apply to Landscape Construction Work?

On May 19, 2010, the Washington State Department of Labor and Industries (L&I) issued a policy statement on when Landscape Construction prevailing wages may not be used.

Policy Offers Guidance Only:  L&I noted that the policy does not change the requirements of state law or of the Washington Administrative Code (WAC).  According to L&I, the "policy is intended as a guide in the interpretation and application of the relevant statutes, regulations, and policies, and may not be applicable to all situations."  L&I periodically issues policy statements on a variety of prevailing wage issues that are all available online.

Classification Descriptions:  Under the Washington Administrative Code, L&I has adopted descriptions of most prevailing wage classifications to help guide contractors and public agencies in determining what work is subject to particular classifications.  Landscape Construction is described in WAC 296-127-01346.  

Work Not Permitted Under Landscape Construction:  L&I's new policy outlines certain tasks that may not be performed under the Landscape Construction prevailing wage rate classification.  Rather than attempt to summarize the specifics of the policy, I suggest that you read the actual May 19, 2010 policy.

Questions:  If you have any questions about the policy, you may contact L&I at (360) 902-5335 or by e-mail at PW1@LNI.WA.GOV.

No Descriptions for Federal Prevailing Wages:  As a side note, the U.S. Department of Labor which administers enforcement of the federal Davis-Bacon prevailing wage requirements, does not have similar descriptions of work for each classification, but tends to rely on the prevailing practices as described in labor union collective bargaining agreements to determine what classification is appropriate for a specific situation.

Can You Re-Design a Project After Bid Opening to Keep it Within Budget?

Let's say you've just opened bids on a  public works construction that has been competitively bid under the traditional Design-Bid-Build method.

Budget Constraints:  The low bidder withdraws their bid due to an error, leaving you with the second low bidder whose bid is right at your budgeted amount, including contingencies.  You're concerned that the budget is too tight to award to the second low bidder.

Can You Re-Design the Project After Bid Opening?  Can you award the project to the second low bidder, enter into conversations with the contractor to conduct value engineering as part of re-designing the project in order to bring the costs down, and then execute a change order for the re-designed, lower priced contract?

Negotiating a Bid Not Permitted:  In most circumstances, the short answer is "no."  Re-designing the project to bring it within the budget amounts to bid negotiation.  Negotiating a public works bid is directly at variance with most competitive bidding laws and regulations.  By re-designing the project, you essentially have a different project than the one that was put out for bid and that other bidders submitted their bids on.

Audit Finding:  In a similar vein, the Washington State Auditor's Office has issued findings in the past after the City of University Place awarded a public works construction project when they didn't have the funding for it, negotiated deletion of work after bid opening and prior to award, and then immediately issued a change order after award to bring the contract amount within budget.  Click here to read my blog entry from January 29, 2009 on this audit finding.

October 2010 Conferences and Training

• The Construction Management Association of America (CMAA) will hold its 2010 National Conference and Trade Show in San Diego, California from October 3-5, 2010.

• Buildex Express will be held in Seattle, Washington on October 27, 2010

• NIGP, CPPB Prep Class.  October 4 - 5, 2010.  Olympia, Washington

Do You Know Where Your Bids Are?

Does your public agency have a standard practice of what happens to bids once they've been received, but before they are opened?  

Secure - But Not Too Secure:  Received bids should be stored in a secure location, not accessible to the public.  However, they should not be so secure that your staff forgets about them.  Frequently, I hear of agencies who have opened bids, only to discover later that there were other bids received on time that didn't make it to the bid opening.  

Vacation:  In one case, the contracting manager had secured a bid submitted early in his desk drawer, and went on vacation without telling anyone of the bid.  Only when he returned did the missing bid become an issue.

2 Bids Missing:  In another case recently at the City of Roseville, California, six bids were opened and read.  Within an hour, staff noticed two additional bids that had not been opened.  These were opened, and one of them was the low bidder.  The firm who was announced as the low bidder after the six bids were received filed a  protest arguing they should be awarded the project, or that all bids should be rejected and the project readvertised.  The City of Roseville staff determined that the late reading of the two bids was an immaterial irregularity, and those two bids should be considered.

Do You Know Where Your Bids Are?  Have a standard practice of collecting bids so that this type of situation doesn't arise.  Some agencies are governed by laws that require a public opening and reading of bids, often on the same day as the bid submittal, so if misplaced bids are discovered late, this can cause a problem.  From the perspective of contractors, not reading bids at the time and place announced does not help promote transparency and trust in the bidding process, and can, as in the City of Roseville's case, lead to bid protests.

The Bottom Line:  Have a clear process, with trained staff, of how you receive, store, and open bids.  Please contact me if you would like an assessment of your bid receipt and opening practices, or if you would like a three hour training session on the subject.

Job Openings in Contracting and Procurement

If your agency has job openings in the areas of contracting, procurement, or purchasing and you would like me to post the openings on this blog, please contact me with the following information:

• Job title
• Summary of the job
• Filing deadline
• Salary range
• Website where readers can find more information. 

You may want to forward this information to your human resources or personnel staff.

This blog has over 400 e-mail subscribers, and over the last year has had close to 10,000 visitors that have come from every state, plus 94 countries.

Debriefing Unsuccessful Proposers

Many proposers who respond to Request for Proposals (RFPs) will request, after the selection process has been completed, a debriefing meeting with the public agency to find out why they were not successful and to make improvements for the future.  

Public Records:  Generally, the selection records, and even the proposals of other firms, are considered public records and subject to public disclosure requirements.  Thus, a firm may request copies of evaluation forms filled out by each evaluation committee member, as well as summaries of the comments and scores.

Provide Information Before Meeting:  Debriefing meetings tend to be more productive if the public agency has already provided a copy of the scores and a summary of the strengths and weaknesses of the requesting firm before the meeting.  This gives the firm the opportunity to think about questions they may have before the meeting.  Many federal funding sources also require the public agency to document the summary of strengths and weaknesses of each proposal as part of the procurement process.

Free Webinar on ConsensusDOCS

The Associated General Contractors (AGC) of America is sponsoring a free 1.5 hour webinar on "Managing Your Construction Projects with ConsensusDOCS Administrative Forms."

Date: July 22, 2010 (2:00 p.m. to 3:30 p.m ET)

For more information, visit AGC's website.

RFP/RFQ Evaluation Rating Forms

In developing an evaluation form for members of the evaluation committee who will review and score proposals and qualifications (submitted in response to RFPs and RFQs), make it easy for the evaluators.

Practice Tip:  Include the complete evaluation criteria on the evaluation form so that evaluators don't have to flip back to the RFP or RFQ to see the details of the criteria.

Evaluation Basis Not Consistent:  If you only include a summary or headline of the evaluation criteria on the evaluation form, chances are that many of your evaluation committee members will not actually refer back to the RFP or RFQ, and thus they will be rating the proposals and qualifications on less than the full evaluation criteria that you published as the basis of evaluation.  You will then essentially have evaluation committee members rating firms on an unequal basis, with some evaluators looking at the full evaluation criteria, and others only looking at the heading of the criteria.

Make Your Evaluation Criteria Count:  Evaluation criteria are a critical component of RFPs and RFQs as they establish what is important to you in making a selection of the most qualified firm.  It is important that the evaluation criteria then be actually used in the evaluation process to ensure you get the best possible result.

Training: Job Order Contracting

Arizona State University's Alliance for Construction Excellence will sponsor an all day training session on Job Order Contracting on Wednesday, August 4, 2010.

Agenda:  Topics to be covered include the following:

• History of Job Order Contracting (JOC)
• Legal/Operational Considerations
• JOC Process
• RFQ/RFP Roadmap
• Contracts
• Estimating
• Unit Price Book Overview
• Case Studies

Information and Registration:  Visit the website of the Alliance for Construction Excellence..

JOC Laws Vary:  Different states, as well as the federal government, has separate laws governing the use of Job Order Contracting.   This training will focus on Arizona State Law.  In Washington State, Job Order Contracting is authorized for specifically names types of public agencies in chapter 39.10 RCW.

4 Applications to Use Alternative Public Works

The State of Washington's Project Review Committee will meet on July 22, 2010 to consider applications for approval from three public agencies to use either Design-Build or General Contractor/Construction Manager (GC/CM) for the following four public works projects.  The links below will take you to the application submitted to the Project Review Committee.

• City of Bellingham: GC/CM for Post Point Wastewater Treatment Plant Improvements ($47.2 million)

• City of Everett: Design-Build for new Everett Municipal Court Building ($6 million)

• City of Everett: GC/CM for Water Pollution Control Facility, Phase C Expansion ($73 million)

• Sound Transit: Design-Build for South 200th Light Rail System Extension Project ($302.2 million)

The Project Review Committee will also consider the application from the University of Washington for renewal of their certification as an experienced public owner to use GC/CM for another three years without having to seek project specific approval.

Alternative public works contracting in the State of Washington is authorized in chapter 39.10 RCW.

Webinar: Bulletproof Your Bidding Process

I will be teaching at 1 hour webinar on a variety of public bidding issues.

Subject: Bulletproof Your Bidding Process: Keys to Minimize Liability 

When: August 12, 2010 from 1:00 p.m. to 2:00 p.m. (Eastern Time).

Cost:  $199

Outline of Webinar:  Here are some of the subjects I'll be covering.

• Bid receipt and opening issues
• Managing addenda
• Mandatory pre-bid meetings
• Common bid irregularities
• Difference between material and immaterial irregularities
• Bidder responsibility criteria
• What bidding error can be corrected
• Managing requests for bid withdrawal (claims of error)
• Bid protests

More Information and Registration:  Visit the website of Government Educator, who is sponsoring the webinar..

Questions:  Please contact me if you have any questions about the webinar.

Seattle Schools Permit Performance of Work Prior to Contract Approval

The Washington State Auditor's Office recently issued an audit finding that the Seattle School District permitted work to be performed on a number of personal service contracts prior to execution of the contracts, in violation of the District's policies and procedures.  The audit also found instances where the District actually paid consultants for services prior to approval of the contracts.

Issue Unresolved Since Last Year:  According to the audit report, "this issue was brought to the District's attention in last year's audit.  It has not be resolved."

Response by School District:  This District concurred with the finding and "will continue to emphasize the importance of compliance with contracting requirements and will implement a specific set of consequences for non-compliance."

Audit Report:  To read the details of the audit report, click here, and go to page 22 of the report.

Lessons Learned:  Auditors will hold public agencies accountable not only for applicable laws and grant requirements, but for compliance with the agency's own policies and procedures.  It's a good idea to conduct a pre-audit on an annual basis of your agency's compliance with applicable laws, regulations, and policies.  Please contact me if you would like assistance in reviewing your agency's compliance with various contracting and procurement standards.

Free Prevailing Wage Training in Washington State

During July, August, and September 2010, the Washington State Department of Labor and Industries will be offering 16 free three-hour training sessions on prevailing wages at nine different locations across the state.  The workshops are geared for public agencies.

The following is the schedule:

• Tumwater (July 26, 2010 - 8:30 a.m. to 11:30 a.m.)
• Tumwater (July 26, 2010 - 1:30 a.m. to 4:30 p.m.)
• East Wenatchee (August 10, 2010 - 1:30 p.m. to 4:30 p.m.)
• Moses Lake (August 11, 2010 - 8:30 a.m. to 11:30 a.m.)
• Yakima (August 12, 2010 - 8:30 a.m. to 11:30 a.m.)
• Yakima (August 12, 2010 - 1:30 p.m. to 4:30 p.m.)
• Tukwila (August 24, 2010 - 8:30 a.m. to 11:30 a.m.)
• Tukwila (August 24, 2010 - 1:30 p.m. to 4:30 p.m.)
• Tukwila (August 25, 2010 - 8:30 a.m. to 11:30 a.m.) 
• Edmonds (August 31, 2010 -  8:30 a.m. to 11:30 a.m.)
• Edmonds (August 31, 2010 - 1:30 p.m. to 4:30 p.m.)
• Bellingham (September 1, 2010 - 8:30 a.m. to 11:30 a.m.) 
• Bellingham (September 1, 2010 - 1:30 p.m. to 4:30 p.m.)
• Spokane Valley (September 10, 2010 - 8:30 a.m. to 11:30 a.m.) 
• Vancouver (September 16, 2010 - 8:30 a.m. to 11:30 a.m.)
• Vancouver (September 16, 2010 - 1:30 p.m. to 4:30 p.m.)

For more information and to register, click here.

Housing Authority Goes Out of Business

The Richland Housing Authority in Washington State closed down at the end of June "after years of financial struggle and uncertainty."

The Housing Authority lost Section 8 housing voucher funding after the U.S. Department of Housing and Urban Development (HUD) found that the agency couldn't account for almost a half million dollars of Section 8 money. 

The Washington State Auditor's Office also issued findings in October 2009 about conflicts of interest of Housing Authority management, failure of the Housing Authority to adequately monitor contracts, and use of restricted funds for unallowable purposes.

For more information, visit the website of the Tri-City Herald.

More Than 400 E-Mail Subscribers to This Blog

My first blog entry for Mike Purdy's Public Contracting Blog was a little over three years ago on June 2, 2007.  

Almost 1,000 Blog Postings:  In that time, I've posted over 950 entries on a wide variety of public contracting subjects.  

Search the Blog:  From the blog home page, you can search for postings with the subject matter index, or through the Google search feature that only searches my blog.

Over 400 E-Mail Subscribers:  Two years ago, on July 9, 2008, I first began offering an e-mail subscription to the blog.   In just two years, the number of active e-mail subscribers has gone from zero to 412, as of today.

Tell Others:  If you know of others who could benefit from subscribing to the blog, please pass the word along.

Comments:  Thank you for the comments that many of you have made to me about the value of the blog to you. If you have suggestions for issues you would like to see addressed in the future, please contact me. 

Training in North Carolina: Best Practices in Purchasing

The Carolinas Association of Governmental Purchasing (CAGP) will host an all day training event on best practices in purchasing on July 20, 2010.

Where:  Graham, North Carolina (Alamance Community College)

Registration Deadline: July 13, 2010

Agenda:

• Best Procurement Practices for Cities (Angelene Brinkley, Ron Goodwin)
• Best Procurement Practices for Counties (Debbie Anderson)
• Best Procurement Practices for Schools (Craig Garner, Paul Walters)
• Conflict of Interest and Ethics (Eileen R. Youens)
• Purchasing Panel Discussion (Angelene Brinkley, Debbie Anderson, Ron Goodwin, Craig Garner, Paul Walters)

Cost: $25 for CAGP members.  $30 for non-members.  Continental breakfast and lunch included.

More Information and to Register:  Visit the website of the Carolinas Association of Governmental Purchasing

NIGP Promotes Public Procurement Principles

The National Institute of Governmental Purchasing (NIGP) is leading an effort along with more than a half-dozen supporting organizations to collaboratively develop a document on "Values and Guiding Principles for Public Procurement."

The initiative is part of NIGP's 2009-2012 Strategic Plan "with a primary objective to gain recognition of public procurement as a profession by developing guiding principles for public procurement."

Values:  The values included in the document at this point include the following:

• Accountability
• Impartiality
• Integrity
• Professionalism
• Service
• Transparency

View Draft Principles Online:  The draft material is online at http://nigp-principlesandpractices.blogspot.com/. 

Submit Your Comments:  NIGP views this as a collaborative effort and invites input and comments from procurement professionals in an effort to refine the document.  There is a place to comment at the bottom of each webpage.  You can also read the comments of others that have been posted so far.

Questions may be directed to Tina M. Borger, CPPO, Research Director for NIGP at tborger@nigp.org.

Illegal Use of Capital Money to Support Small Business Program

Over a two year period, the Seattle School District used close to $2 million of capital project funds to pay for  costs to administer a Small Business Development Program designed to help small businesses "overcome barriers to growth." 

According to a recent audit finding issued by the Washington State Auditor's Office, the Seattle School District was unaware that Washington state law (RCW 28A.530.010) prohibits the use of capital project money for such purposes.

The school district has agreed to reimburse the Capital Projects Fund for ineligible expenses.

Click here to read a copy of the audit finding that begins on page 5 of the report containing other audit findings as well

Los Angeles County Awards JOC Consultant Contract

Los Angeles County has awarded a $1 million a year consultant contract to RS Means to help manage the County's Job Order Contracting program. At the sole discretion of the County, the contract is subject to four one-year renewals.   Click here to read the award recommendation to the County Board of Supervisors.

Transition Period:  The contract with RS Means has not yet been executed and their work will not actually begin until sometime in October, when the current contract with The Gordian Group expires.

Only 2 Responses:  The County issued a Request for Proposals (RFP) to 38 firms on October 8, 2009.  Two firms responded:  RS Means and The Gordian Group.

Scope of Work for RS Means:  RS Means will assist the County with "conducting market research to determine local prevailing costs for construction equipment, materials, and labor for vertical construction, horizontal construction, general work, and demolition; preparing and updating detailed construction cost catalogs that include unit prices and technical specifications; maintaining project control and estimating software; and providing technical support as needed."

Los Angeles vs. Washington State Thresholds:  Los Angeles County may issue work orders under the Job Order Contract program for up to $4.2 million each.  That is contrasted with the State of Washington, where RCW 39.10.450 authorizes that each work order may be up to $300,000.  Other states and the federal government have different thresholds and requirements.

Implementation of JOC in Washington State:  In Washington State, public agencies that have chosen to use Job Order Contracting have generally used the RS Means estimating guide as their price book.  To my knowledge, RS Means has not previously competed directly against The Gordian Group for JOC consultant services.  Only one agency in Washington State has issued an RFP for JOC consulting services.  The City of Bellevue, Washington this year awarded a consultant contract to The Gordian Group to help them establish a JOC program. 

More Information:For more information about Job Order Contracting, you can visit the JOC subject index on my blog for other entries about Job Order Contracting.

Federal Support of Project Labor Agreements (PLAs) Criticized

An opinion piece in The Seattle Times on July 6, 2010 addresses concerns about how Obama administration's support of labor unions is having a negative impact on the construction industry, which, according to the editorial, is 85% non-union.  The opinion piece criticizes President Obama's support of Project Labor Agreements (PLAs), among other actions.

The opinion piece is written by Jim Elmer, the 2010 national chairman of the Associated Builders and Contractors, and the president of James W. Elmer Construction Co. of Spokane, Washington.

No Bids Received

Many bidding issues in 1906 were the same as they are in 2010.

The following is a great quote from the book Novels in Three Lines, which is a collection of more than a thousand items that appeared anonymously in the French newspaper Le Matin in 1906.  This book by Felix Feneon has been translated by Luc Sante.

"On a contract to transport coal to ships at Toulon (France), none of the 24 bidders made an offer; they were daunted by the stipulations."

And the size of specifications and scopes of work has only increased in the last 104 years!  I'm sure we have many bidders today who are also "daunted by the stipulations."

Follow-up: Missouri's Rejection of Bid Not Submitted Electronically

In an earlier blog posting, I reported that the Missouri Department of Transportation (MoDOT) had rejected a bid as non-responsive because the low bidder submitted their bid on paper, rather than electronically.  MoDOT awarded the project to the second low bidder at an additional cost of $83,000.

I was somewhat surprised by MoDOT's decision as it appeared to me, based on the facts I had, that the failure to submit the bid electronically was an immaterial irregularity, and that the bid should have been considered responsive.

Public Disclosure Request Denied:  I filed a formal public disclosure request with MoDOT for additional documents.  I just received an e-mail back from MoDOT denying my public disclosure request.  They cited that the non-responsive firm, Steve & Associates, has threatened litigation, and that under Missouri's Open Records Law, the documents I requested were therefore not subject to disclosure at this time.