Tuesday, July 27, 2010

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. 

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