Happy Thanksgiving!

As you and your family and friends gather together on Thursday to celebrate Thanksgiving, I hope that you will take a moment during the day to reflect on the many things you have to be thankful for.  

Cultivate a spirit of thankfulness:  Certainly, in this world, we all experience a combination of good things and tragic and difficult circumstances.  But it's a good practice, even in the midst of challenges, to cultivate a spirit of gratefulness and thankfulness for the many blessings of our lives - both the large and consequential things and the little things that enrich our lives.  It's good to train our hearts toward thankfulness not just on Thanksgiving Day, but every day. I know some people who write down every day the things for which they are thankful.  Such a practice can help us cope more effectively with the difficult things that we face in life.

Happy Thanksgiving!  I want to wish you a wonderful Thanksgiving Day, full of family and friends, a thankful spirit, and an opportunity for worship.  Happy Thanksgiving!

Break from blog:  Because many of us will be taking time off from work this week, this will be the only blog I write this week.  I will resume the blog the week of December 1st.

Mike Purdy's Public Contracting Blog
© 2014 by Michael E. Purdy Associates, LLC
http://PublicContracting.blogspot.com

What Requirements Still Apply for Emergency Public Works Contracts?

When a public agency has declared an emergency and waived competitive bidding requirements for a public works construction project, what is being waived is the contractor bidding and selection process.  In other words, under an emergency contract seeking bids is not required.  

Not enough time to conduct a bid process:  The nature of emergencies dictates that there is not sufficient time to conduct a bid process without raising the risk that individuals may be injured, property damaged, or that the essential functions of government may not be fulfilled.  The definition of an emergency public work varies by state. In Washington state, it is defined in RCW 39.04.280. 

What is required for emergencies:  The following is a list of some of the requirements that still apply for emergency public works projects.  Generally, only the selection process is waived through the emergency declaration.  While this list is based on Washington state law, portions of it may also apply for other states, depending on their specific requirements:

• Declaration of emergency:  A formal declaration of an emergency must be made.  See RCW 39.04.280.

• Bidder Responsibility:   The mandatory bidder responsibility criteria of RCW 39.04.350 still apply for emergency contracts.

• Contract:  There should still be a public works contract documenting the various requirements and the dollar amount of the project, even if it is for a time and materials, not-to-exceed amount.

• Prevailing wages:  Prevailing wages must still be paid consistent with the requirements of RCW 39.12.

• Intent:  A Statement of Intent to Pay Prevailing Wages must be approved by the Department of Labor and Industries and filed with the public agency prior to making any payments to the contractor.  A separate Intent must be completed for the contractor and each subcontractor, regardless of tier.

• Affidavit:  An Affidavit of Wages Paid must be approved by the Department of Labor and Industries and filed with the public agency prior to making payment of retainage to the contractor.  A separate Affidavit must be completed for the contractor and each subcontractor, regardless of tier.

• Bonds:  A payment and performance bond must be submitted to the agency for the work, in accordance with RCW 39.08.

• Insurance:  The amounts and types of insurance required on a public works project are governed by each agency and not by Washington state law. 

• Retainage:  Retainage should be withheld from each progress payment.  See RCW 60.28.  The only exceptions to not withholding retainage is if a retainage bond is submitted by the contractor or if the contractor was selected through the Limited Public Works process under the Small Works Roster (for public works projects less than $35,000), in which case there would have been no need to waive the competitive bidding process.

Timing of emergencies:  While the above items are still required under Washington state law for an emergency public work, agencies must ensure that health, safety, and property are protected and that an agency's essential functions continue to serve the public.  Sometimes, due to the emergency nature of the project, it is important to get a contractor on the job site immediately, perhaps in the middle of the night, to address the emergency.  In such a case, often some of the paperwork requirements are addressed after the fact. 

Emergency procedures:  Washington state law does not have exemptions for public works requirements on emergency projects, other than for the actual bidding and selection process.  It is important that each public agency have clear emergency public works procedures that will dictate:

• Compliance:  The timing of compliance with the requirements of state law.

• Authorization:  Who within the agency is authorized to declare an emergency and waive competitive bidding.  This person or persons should be available at any time, which is why it is often problematic to dictate that only an elected board or council may waive competitive bidding.
  

Mike Purdy's Public Contracting Blog
© 2014 by Michael E. Purdy Associates, LLC
http://PublicContracting.blogspot.com

Receiving and Checking Certified Payrolls on Federally Funded Projects

One of the requirements that comes with federal funding of a public works construction project is the requirement for the public agency to receive and check weekly certified payrolls from the contractor and all subcontractors.  This process helps to ensure that all workers are being paid at least the prevailing wage rate for the classification of labor they performed. 

What should be monitored?  Because the federal Davis-Bacon Act (prevailing wage) requirements are applicable on all federally funded projects, state and local agencies need to have a process in place to ensure:

• Timeliness:  Payrolls are received in a timely manner.  The Davis-Bacon Act requires that workers be paid weekly, and payrolls must be submitted to the agency weekly.

• Completeness:  Payrolls must be received for the contractor and all subcontractors, regardless of tier.  This means that public agencies need to have an accurate process for identifying what subcontractors are working on the project.

• Interviews:  The public agency must conduct field interviews of workers employed by the contractor and subcontractors to collect information on what they state they are being paid.  The results of these interviews must be correlated with the payroll reports submitted to determine if there are any discrepancies between what a worker states he or she is being paid and what the payrolls reflect they are being paid.

• Review:  Payrolls must be reviewed and monitored on a weekly basis to identify any questions or potential underpayments of prevailing wage to workers.

Audit findings:  The following agencies were recently the subject of audit findings from the Washington State Auditor's Office for failure to collect and monitor prevailing wages on federally funded projects:

• City of Bainbridge Island 
• Port of Benton 
• City of Lakewood

Mike Purdy's Public Contracting Blog
© 2014 by Michael E. Purdy Associates, LLC
http://PublicContracting.blogspot.com

Training: Demystifying Public Works Bidding and Contracting

Demystifying Public Works Bidding and Contracting

When and Where - 8:00 am to 4:30 pm:

• November 24, 2014 (Yakima, WA, 33 S. 2nd Ave), or

• December 1, 2014 (Tumwater, WA, 6005 Tyee Dr. SW)

Instructor:  Mike Purdy 

Sponsored by:  WASBO - Washington Association of School Business Officials 

Cost:

• $200 for WASBO members
• $240 for non-members
• Cost includes workshop materials and lunch

Register and more information:  

• Click here for Yakima

• Click here for Tumwater
  

Mike Purdy's Public Contracting Blog
© 2014 by Michael E. Purdy Associates, LLC
http://PublicContracting.blogspot.com

New California Law Unifies Approach to Design-Build

On September 30, 2014, California Governor Jerry Brown signed SB 785, clarifying and consolidating various Design-Build laws for public construction contracts throughout the state.

Use by state and local agencies:  Specifically, the new law provides for uniform Design-Build processes for certain state agencies, cities, counties, and other local contracting districts for projects over $1 million. The law defines a number of common terms, and outlines a standard Design-Build procurement process that includes either selection based on a low bid or a best value approach.  Click here for the legislative analysis of the bill that provides insight into the rationale for SB 785.

Who supported and opposed the bill?  The bill was supported by the AGC of California, some public owners, and the Western Pacific Region of the Design-Build Institute of America. It was opposed by some non-union contractor and subcontractor trade associations.

 

What is Design-Build? Design-Build is a project delivery method that places design and construction services under one contract with a single point of responsibility. Its advantages include reduced project costs, expedited project completion, and better quality due to the integration of design and construction through one firm.  The Design-Build Institute of America (DBIA) has written a Design-Build Done Right Primer that explains key concepts of this project delivery method.

Design-Build nationwide: Rules for use of Design-Build vary from state to state. The Design-Build Institute of America has published a 2013 State Statute Report outlining Design-Build laws in various states.

Managing Design-Build contracts:   Design-Build can be an effective tool for some projects, but it is very important that a public agency selects the right Design-Build partner for the project.  Here are some key guidelines related to the selection process:

• Think through the selection process carefully up front, including evaluating likely proposers and how the process and point allocation may impact the end result. 

• Based on the particular project, evaluate the appropriate allocation of points between qualifications/technical merit and price. 

• Don’t change the selection process mid-stream through the procurement. This can lead to protests and delays for the project. 

• If the agency does not have personnel with specific Design-Build experience, obtain the services of a qualified consultant to guide the agency though the project.

Mike Purdy's Public Contracting Blog
© 2014 by Michael E. Purdy Associates, LLC
http://PublicContracting.blogspot.com

Free Webcast on the Forecast for Construction in 2015

Is the Pace of Construction Investment Set to Quicken?

When:  November 20, 2014 (11:30 am - 1:00 pm, Pacific Time) 

Where:  Your computer 

Description:  Will 2015 see further steady progress, or will it be sidetracked by the likes of material and labor shortages, commodity price surges, further political bickering in Washington or military turmoil in hot spots around the world? 

Cost:  Free 

Speakers:

• Ken Simonson, Chief Economist, AGC of America
• Kermit Baker, Chief Economist, AIA
• Alex Carrick, Chief Economist, CMD

Register now:  Click here.

Mike Purdy's Public Contracting Blog
© 2014 by Michael E. Purdy Associates, LLC
http://PublicContracting.blogspot.com

Job Opening: Senior Procurement Specialist

City of Vancouver, WA

• Position: Senior Procurement Specialist

• Location:  Vancouver, Washington

• Closing Date:  Open until filled.  First review: December 2, 2014

• Salary: $55,512 to $72,168 Annually
  

• Job Summary:  The person in this position will provide procurement services to City departments by developing and administering contracts, procuring construction services, public works, professional services, materials, supplies, commodities, equipment, and other services. This position will be responsible for developing and implementing procurement training, strategies to increase contractor participation, and procurement process improvements.

• For More Information and to Apply:  Click here.

Mike Purdy's Public Contracting Blog
© 2014 by Michael E. Purdy Associates, LLC
http://PublicContracting.blogspot.com

Job Opening: Procurement/Contracts Coordinator

Sound Transit (Seattle)

• Position: Procurement/Contracts Coordinator

• Location:  Seattle, Washington

• Closing Date:  November 17, 2014 at 5:00 pm, Pacific Time

• Salary: $44,339 to $55,424 Annually
  

• Job Summary: The person in this position administers the records management of contract files to the entire Procurement & Contracts Division; Works closely with Legal in responding to public disclosure requests and litigation documentation requests;  Supports the development and distribution of reports and documentation in response to auditor, internal customer and requests from the public; Assists in the development and maintenance of the Division’s HUB, SharePoint Team Site and public facing internet web page; Coordinates and troubleshoots the day-to-day operational needs of the Division; Oversees file management of the Procurement and Contracts Department files contained in the library; Provides back-up in the Systems functions as necessary.

• For More Information and to Apply:  Click here.

Mike Purdy's Public Contracting Blog
© 2014 by Michael E. Purdy Associates, LLC
http://PublicContracting.blogspot.com

Federal VA Procurement Official Resigns Under Ethics Cloud

On October 14, 2014, the federal Veterans Health Administration’s deputy chief procurement officer, Susan M. Taylor, resigned under heavy pressure from Congress and other critics amid charges by the VA’s Inspector General that she “misused her position and VA resources for private gain” of a reverse auction company, FedBid.  The report was forwarded to the Justice Department, who declined to prosecute in favor of allowing VA to manage the abuses administratively.

Why she resigned:  Taylor resigned rather than face almost certain firing by the Department of Veterans Affairs.  Taylor came under an ethics cloud and was the subject of an Inspector General’s report for taking the following actions:

• Pressured staff to give FedBid a preference:  “Engaged in conduct prejudicial to the Government when she pressured contracting staff under her authority to give preference to and award a task order for reverse auction to FedBid.”

• Acted as agent of FedBid:  “Engaged in a conflict of interest when she improperly acted as an agent of FedBid in matters before the Government.”

• Disclosed non-public information:  “Improperly disclosed non-public VA information to unauthorized persons.”

• Use of position and resources:  “Misused her position and VA resources for private gain.”

• Retaliated against VA employee: “Engaged in a prohibited personnel practice when she recommended that a subordinate senior executive service (SES) employee be removed from SES during her probation period, as Ms. Taylor identified the subordinate as the person she suspected of making protected disclosures of Ms. Taylor’s ethics violations.”

• Interfered with investigation:  “Interfered with the VA Office of Inspector General’s (OIG) review of the FedBid contract and that she did not testify freely and honestly concerning her involvement in the solicitation and award of the task order to FedBid, as well as other matters.” 

The controversy surrounding Taylor’s actions on the FedBid contract were not the only ethical violations of Taylor over her 30 year career as a federal employee.  Other situations that relate to her personal relationship with another VA employee who was also implicated in the VA scandal, are detailed in the Inspector General’s 81 page report.

What is a reverse auction?  FedBid’s business model provides the framework for government agencies to obtain competitive prices through the use of a reverse auction in which a firm’s price is publicly disclosed and other firms may choose to lower their bid price to be the lowest bidder.  While some officials note that FedBid's reverse auction saves the government money, the savings are reduced by a fee charged by FedBid.

The following links give some of the timeline and background surrounding the VA-FedBid controversy.

• Department of Veterans Affairs Office of Inspector General, September 26, 2014 report: Administrative Investigation 

• VA contracting official misused her position to help company, inspector general finds, October 5, 2014 article from The Washington Post, by Christian Davenport

• VA contracting official Susan Taylor resigns amid agency’s attempt to fire her, October 14, 2014 article from The Washington Post, by Josh Hicks

• VA’s Use of Reverse-Auction Contracts Comes Under Attack, by Charles S. Clark, December 11, 2013 article from Government Executive

Lessons learned:  Unfortunately, there are too many stories like this one at all levels of government, and they serve as a reminder for public agencies to be diligent in managing the ethics environment and culture of an organization.

• Does your agency have an up-to-date ethics and conflict of interest policy?

• Do employees know what is in the policy?  Do you provide regular training and discussion on ethics?

• Does your agency have structures and systems in place to help prevent ethical lapses?

• Does your agency have appropriate checks and balances, internal controls, and supervision of staff to prevent ethical abuses?

• What is the culture and tone regarding ethics that is set by the leadership of your agency?

Mike Purdy's Public Contracting Blog
© 2014 by Michael E. Purdy Associates, LLC
http://PublicContracting.blogspot.com

Training: Construction Project Scheduling & Delay Claims

Construction Project Scheduling & Delay Claims

When:  November 21, 2014 (9:00 am to 5:00 pm) 

Where:  

• Seattle, WA (Hilton Seattle, 1301 6th Avenue), or
• Live Webcast from your office 

Cost: 

• $425 - Government/Non-Profit
• Other cost categories  

Agenda:  A faculty of 8 highly qualified instructors will address the following issues.

• 30 Minutes to CPM Proficiency
• Basic Scheduling Concepts for Delay, Acceleration and Mitigation
• Primary Legal Concepts for Delay Claims
• Cost Analysis for Schedule and Delay Claims
• Addressing Project Delays - Public Sector Perspective
• Contracting Strategies for Schedule Issues
• Interesting Projects and Lessons Learned
• Dispute Resolution and Arbitration of Schedule & Delay Claims

Information and registration:  Click here for more information and to register for this training, sponsored by The Seminar Group.

Mike Purdy's Public Contracting Blog
© 2014 by Michael E. Purdy Associates, LLC
http://PublicContracting.blogspot.com

Job Opening: Senior Buyer

Seattle Public Library

• Position: Senior Buyer

• Location:  Seattle, Washington

• Closing Date:  November 17, 2014 at 5:00 pm, Pacific Time

• Salary: $72,954 to $84,939 Annually
  

• Job Summary: Under the direction of the Business Office Manager, the Senior Buyer responds to user department requests for the acquisition of commodities and services which are complex in terms of their acquisition process and contracting requirements. The Senior Buyer will assist managers and staff in analyzing and developing accurate and complete specifications which meet customer requirements and form a basis for competition among vendors; solicits qualified bidders; conducts open, competitive bidding process; evaluates bids; prepares and awards contracts; and monitors vendor performance to ensure contract compliance and customer satisfaction.  The Senior Buyer is also part of a team that plans and administers public work contracts on behalf of the Library.

• For More Information and to Apply:  Click here.

Mike Purdy's Public Contracting Blog
© 2014 by Michael E. Purdy Associates, LLC
http://PublicContracting.blogspot.com