May Public Agencies in Washington Prequalify Contractors?

Are public agencies in the State of Washington authorized to prequalify contractors on public works projects?  

CPARB discussion:  This was a question that was recently the subject of a discussion at the May 10, 2012 meeting of the Capital Projects Advisory Review Board (CPARB).   At issue were complaints filed by contractors against a city with a prequalification process.

What is prequalification?  Under prequalification, a public agency conducts a separate evaluation process to determine which contractors meet specific criteria and are thus able to submit bids.  

What agencies are authorized to prequalify?  In Washington State, only three types of public agencies are specifically authorized in state law to use prequalification:

• WSDOT (State Department of Transportation) for highway work - RCW 47.28.070

• Public Utility Districts (PUDs) for electrical work - RCW 54.04.085

• Cities or towns owning an electrical utility for electrical work - RCW 35.92.350

Are agencies prohibited from prequalifying contractors?  The general interpretation has been that since the Washington State Legislature has specifically authorized only certain types of agencies to use prequalification, that the authority does not exist for other public agencies to prequalify contractors. 

Attorney General opinion:  The issue of prequalification authority was addressed in an Attorney General opinion from 1993 to the University of Washington.  That opinion concluded that the University did not have authority to require that contractors have an apprenticeship program as a prequalification requirement.

How can agencies get qualified contractors?  While the prequalification process prior to bidding is not authorized, public agencies are authorized to utilize supplemental bidder responsibility criteria.  After bid opening, the agency requests the low bidder to submit specified documentation demonstrating that they meet the published criteria. In order to be determined to be a responsible bidder and awarded the project, the low bidder must meet the supplemental bidder responsibility criteria. 

Resources for responsibility criteria: 

• RCW 39.04.350 addresses supplemental bidder responsibility criteria

• CPARB's Suggested Guidelines for Bidder Responsibility

• Checklist for Developing Supplemental Bidder Responsibility Criteria.  I've developed a checklist to help public agencies think through the issues involved with using supplemental bidder responsibility criteria.  

Mike Purdy's Public Contracting Blog 

© 2012 by Michael E. Purdy Associates, LLC 

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