Wednesday, October 3, 2012

May Public Agencies Prequalify Contractors?

A Washington state board recently asked for an interpretation of whether public agencies in the State of Washington are authorized to prequalify contractors.  

Contractor concerns:  The prequalification question came up in response to concerns expressed by contractors about one city that routinely prequalifies contractors for public works projects.

No clear answer:  At its September 13, 2012 meeting, the Capital Projects Advisory Review Board (CPARB) was informed by a representative from the State Attorney General's Office that the question posed was an "unsettled area of law in Washington," that there are good arguments on both sides, and that it was an issue for the courts to interpret in the event of a lawsuit.  CPARB was advised that there is no law that authorizes or prohibits prequalification of contractors for all public agencies. 

What agencies may prequalify?  Some have interpreted the fact that there are only three types of public agencies specifically authorized in Washington state law to prequalify contractors as evidence that the Legislature intended to grant this exemption to typical competitive bidding requirements to only the following:
  • 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
Further contractor action?  It is unclear at this point what action contractors and contractor associations may take to formally challenge the prequalification practices of the city in question.

How to get qualified contractors:  The Legislature has provided public agencies with the ability to help ensure that qualified contractors work on public works projects through the use of Supplemental Bidder Responsibility Criteria, as authorized in RCW 39.04.350 (2).
Mike Purdy's Public Contracting Blog 
© 2012 by Michael E. Purdy Associates, LLC

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