Sunday, July 30, 2017

Bid Form Signature Block

This is a follow-up to my recent blog posting about the new Washington state law adding compliance with the state's minimum wage laws as a mandatory bidder responsibility criterion.

Bidder's Place of Signing Bid Form:  I noted that that one option for obtaining the documentation of the bidder's compliance is to include a statement on the bid form.  The bidder would then just sign one document.  Such a signature must be accompanied by a statement that the bidder is signing the bid form under the penalty of perjury.  The revision to RCW 39.04.350 requires compliance with RCW 9A.72.085 which, in addition to the perjury statement requires that the signature block must note the place of signing by the bidder.

Sample Signature Block:  I've included below a signature block that I've used in the past that includes both the perjury statement and place of signing.


Consult With Your Attorney:  Review your bid form and check with your attorney to ensure that your bid form is in compliance with state law, especially if you are including the sworn statement for compliance with minimum wage laws on your bid form.

Mike Purdy's Public Contracting Blog
© 2017 by Michael E. Purdy Associates, LLC
http://PublicContracting.blogspot.com

Monday, July 24, 2017

New Mandatory Public Works Bidder Responsibility Criteria Effective July 23, 2017

The Washington Legislature adopted a new law (Senate Bill 5301) that adds an additional criterion to the list of mandatory bidder responsibility criteria that public agencies must verify and document before awarding any public works project, regardless of cost.  

Effective Date:  The new law became effective on July 23, 2017.  This means that public agencies must ensure that the required sworn statement is obtained prior to award of the public works project. 

Minimum Wage Compliance by Bidder:  The new law establishes a new criterion relating to the contractor's compliance with the state's minimum wage laws.  It also dictates that, prior to award, the contractor must sign a statement that they have not violated the law within a three year period.
  • Criterion:  Here's the language from the law: "Within the three-year period immediately preceding the date of the bid solicitation, not have been determined by a final and binding citation and notice of assessment issued by the department of labor and industries or through a civil judgment entered by a court of limited or general jurisdiction to have willfully violated, as defined in RCW 49.48.082, any provision of chapter 49.46, 49.48, or 49.52 RCW."
  • Documentation:  Here's the language from the law on what is required for documentation: "Before award of a public works contract, a bidder shall submit to the contracting agency a signed statement in accordance with RCW 9A.72.085 verifying under penalty of perjury that the bidder is in compliance with the responsible bidder criteria requirement of subsection (1)(g) of this section.  A contracting agency may award a contract in reasonable reliance upon such a sworn statement." The reference to subsection (1)(g) refers to the "criterion" paragraph above.
Methods for Verifying Bidder's Compliance:  There are a number of options, some better than others, for how a public agency can obtain the required sworn statement from the bidder whose bid is under consideration by the public agency for award. I recommend use of the first option listed below.

  Include Sworn Statement on Bid Form:  This option is the easiest administrative method and least risky option.  I recommend use of this option.  Under this option, a public agency would include the following statement as part of the Bid Form:  "The undersigned Bidder hereby certifies that, within the three-year period immediately preceding the bid solicitation date for this Project, the bidder is not a “willful” violator, as defined in RCW 49.48.082, of any provision of chapters 49.46, 49.48, or 49.52 RCW, as determined by a final and binding citation and notice of assessment issued by the Department of Labor and Industries or through a civil judgment entered by a court of limited or general jurisdiction."  In addition, the following language would need to be part of the signature block for the Bid Form: "I certify (or declare) under penalty of perjury under the laws of the State of Washington that the foregoing is true and correct."  This statement is necessary to comply with the provisions of the new law that dictates that the sworn statement must be in compliance with RCW 9A.72.085.

  Request Sworn Statement from Low Bidder:  Under this option, after bid opening, the public agency would request the low bidder submit the sworn statement after bid opening.  The Municipal Research and Services Center (MRSC) has developed a sworn statement for this purpose.  Click here to visit MRSC's website where you can click on the link for "model certification form."  This is an additional step for the public agency that can be eliminated by including the sworn statement on the Bid Form (see option above). While I don't recommend this option because it is an additional step, there is nothing inherently wrong with this option.

  Include Sample Sworn Statement in Bid Documents:  Under this option, a public agency would include MRSC's model certification form as a sample in the bid documents.  The public agency would still be required to obtain the signed form from the low bidder prior to award, which represents an additional step like the option immediately above. It could be confusing for bidders whether they are required to submit the sample with the bid or after bid opening.  I do not recommend this option.

  Require Separate Sworn Statement be Submitted with the Bid:  Using MRSC's model certification form, under this option, the bid documents would require that the signed sworn statement be submitted with the bid.  This is not a good option, as it increases the risk that a bidder (the low bidder) will fail to submit the sworn statement with the bid, thereby rendering the entire bid non-responsive and unable to be considered further.  Using best practices for public works bidding, public agencies should limit the number of documents submitted with the bid to the Bid Form, bid guaranty, subcontractors list if the project is estimated to cost $1 million or more, and any documents required by federal or state grant provisions. I strongly recommend that public agencies not use this option. 

Other Mandatory Bidder Responsibility Criteria:  The new law adds compliance with minimum wage laws to the existing list of mandatory bidder responsibility criteria that public agencies must verify and document prior to award of any public works project.  The other criteria may be found in RCW 39.04.350.  Review your agency's practices to ensure that you have a process to verify and document the mandatory bidder responsibility criteria for all public works projects. 

Other New Public Works Laws:  See my blog from April 17, 2017 for a description of five new public works laws that do the following:
  • Increases the dollar threshold for when a payment/performance bond may be waived
  • Grants subcontractors additional rights to have retainage released early through a retainage bond
  • Adds an additional criterion to the list of mandatory bidder responsibility criteria
  • Authorizes Public Utility Districts to contract for on-call public works projects
  • Authorizes transit agencies (public transportation benefit area authorities) to use Job Order Contracting
Presidential History Blog:  Check out my Presidential History Blog at PresidentialHistory.com and sign up for a free email subscription to it.


 
Mike Purdy's Public Contracting Blog
© 2017 by Michael E. Purdy Associates, LLC
http://PublicContracting.blogspot.com

Tuesday, July 18, 2017

Job Opening: Purchasing Manager


City of Bellingham
  • Position: Purchasing Manager
  • Location:  Bellingham, Washington
  • Closing Date:  Friday, August 11, 2017 at 4:30 pm Pacific Time
  • Interview Schedule:  The most qualified candidates will be asked to participate in a panel interview on August 31, 2017.
  • Salary: $80,244 - $95,832 annually
  • Job Summary: The Public Works Purchasing Manager oversees city-wide procurement processes that ensure compliance with applicable federal, state and local laws and City policies and procedures. Performs complex administrative and technical purchasing work and provides procurement expertise in managing and coordinating a centralized procurement system of contracts, goods and services as well as asset storage, recovery and disposal.
  • Essential Functions of the Job: 
  1. Recommends, implements and maintains City purchasing systems for maximum efficiency and to achieve optimum life-cycle cost for all goods and services purchased.   Oversees the analysis of cost, performance, quality, service and delivery.  Provides input and makes recommendations to City Administration on purchasing and procurement policies and procedures.  Implements city wide policies and procedures, oversees the creation of manuals, forms, charts, informational materials, related training programs and briefings. Using various analytical methods evaluates City's current purchasing patterns and practices; develops and continuously improves centralized purchasing systems and procedures.
  2. Oversees all City procurement processing, monitoring, bids, solicitations, addenda, administration, clarifications, modification, compliance, negotiations, changing conditions, coordination of legal review, terminations, and purchase orders. Provides responsive support to City Departments regarding complex procurement issues, including Revenue Contracts, Technology, Architect services, Engineering services, Construction, and Public Works Contracts, and Systems contracts.  Provides training and technical guidance as needed.
  3. Oversees and directs staff on development of contracting forms and contracting documents.  Provides recommendations to and collaborates with Assistant City Attorneys and Public Works executive team on standards, processes, risk assessment, liability and insurance requirements.  Directs work of purchasing staff in carrying out and executing contracts. 
  4. Prepares and presents recommendations to City administration regarding standards for competitive purchasing of professional services, trains departments on procedures for acquiring professional services, monitors compliance with City standards, and recommends corrective action as needed.
  5. Manages and oversees the central procurement system to maintain the integrity of the public procurement process and guard against ethical challenges and charges of fraud, waste or inefficiency. Makes recommendations on sole source purchase requests and other complex purchases to the Public Works Director or designee within the limits of Bellingham municipal code and state law. 
  6. Ensures accountability, compliance and consistent interpretation and application with all current and applicable state and federal laws, agency policies and procedures, rules and regulations.
  7. Oversees the management of warehouse and parts room operations, inventory control and surplus property. Develops and implements the warehouse municipal emergency response capability.  Ensures full compliance of warehouse with safety regulations.
  8. Directs, plans and organizes the work of purchasing and warehouse unit staff.  Selects candidates for hire, trains, schedules, assigns and reviews work of staff.  Establishes performance standards, conducts performance reviews, coaches, counsels and recommends disciplinary actions.  Plans and carries out employee development.
  • Experience and Training: 
  • Bachelor's degree in business administration, finance, public administration or closely related field.
  • Two (2) years experience as a Purchasing Manager or five (5) years as a Senior Buyer with responsibility for a wide range of buying, including consumable supplies, commodity and/or heavy equipment acquisition.
  • Three (3) years supervisory experience.
  • Experience with budgeting preferred.
  • Experience with contract administration strongly preferred.
  • A combination of education and experience that provides the applicant with the required skills and abilities will be considered.
  • For More Information and to Apply:  Click here
Mike Purdy's Public Contracting Blog
© 2017 by Michael E. Purdy Associates, LLC
http://PublicContracting.blogspot.com

Thursday, June 22, 2017

Job Opening: Purchasing Specialist for Kitsap Transit


Kitsap Transit
  • Position: Purchasing Specialist
  • Location:  Bremerton, Washington
  • Closing Date:  Friday, June 30, 2017 at 4:00 pm
  • Salary: $22.29 - $29.98 per hour ($46,363 - $62,358 Annually)
  • Benefits:  Full-time employees receive a generous benefits package including subsidized medical insurance and fully paid dental insurance for employee and dependents, as well as disability insurance and life insurance.  This position participates in the Washington State Public Employees’ Retirement Plan with the option of participating in a state administered deferred compensation plan.  There is a generous general leave accrual and 11 holidays. The employee and certain dependents also receive a free transportation pass on Kitsap Transit. 
  • Job Summary: This position is responsible for preparing and coordinating bid and/or proposal solicitation packages consisting of standard terms and conditions; preparing appropriate advertising; establishing vendor lists and responding to questions regarding solicitations. The person in this position may also evaluate selected bids against specifications and recommend awarding of contracts; notify vendors of award, request appropriate vendor documentation and arrange final purchase and delivery of product or service; and assist the project manager in monitoring contracts for compliance with local, state, and federal audit regulations. This position also prepares resolutions with applicable supporting documentation for the Board of Commissioners’ review and approval.

    The successful candidate will research and compile information related to price, availability, delivery, quality, warranty and reliability of products, services and office equipment leases; obtains quotes over the phone and in writing on a wide variety of products and services; communicate with salespersons and manufacturing representatives regarding products and services; arrange for, monitor and expedite deliveries; receive and distribute products.

    This position also assists agency staff with purchasing activities to ensure that purchase requisitions and activities comply with Kitsap Transit’s procurement policies; receives and reviews requisitions for products and services; ensures proper authorizations, and accuracy of account numbers and descriptions.

    The person in this position responds to purchasing related inquiries; investigates and resolves complaints about products and services; ensures necessary and timely follow-up; confers with and advises the supervisor regarding resolution to problems and complaints. This position is also responsible for administering and maintaining a reliable vendor base; tracks orders and prepares correspondence.  
  • Reports to:  Finance Director
  • Hours of Work: Work is conducted during normal business hours 8:00 am - 5:00 pm Monday through Friday, with the possibility of an occasional evening or weekend meeting.
  • Education and Experience:  High school graduation/GED and some college level coursework or technical training in purchasing, finance, business, or accounting and two years of experience in a purchasing position/positions.
  • Knowledge, Skills and Abilities: Following are some highlights of what is needed to be successful in this position. 
    • Preparation of formal proposals and informal bid packages  
    • Purchasing a variety of products and services 
    • Preparing bid specifications and formal solicitation packages 
    • Conducting research, collecting data and information, analyzing data and making recommendations 
    • Explaining regulations, procedures and guidelines 
    • Communicating effectively orally and in writing 
    • Using personal computers and office software including word processing and spreadsheets 
    • Utilizing good judgment in safeguarding confidential or sensitive information and adherence to high standards of confidentiality and honesty 
    • Establishing and maintaining effective working relationships with fellow employees, outside agencies and the general public. 
    • Working independently and interacting effectively and positively as a team member. 
    • Reacting with sound judgment under stress while doing several things at once.
  • For More Information and to Apply:  Click here.   Please contact Marianne Rajan in the Human Resources Department at (360) 478-5852 if you have any questions. 

Mike Purdy's Public Contracting Blog
© 2017 by Michael E. Purdy Associates, LLC
http://PublicContracting.blogspot.com

Monday, April 17, 2017

5 New Public Works Bills Passed by Washington Legislature

As part of preparing for a two day class on Public Works Bidding and Contracting that I recently taught, I noted that the Washington State Legislature recently approved five public works related bills that do the following:
  • Increase the dollar threshold for when a payment/performance bond may be waived
  • Grant subcontractors additional rights to have retainage released early through a retainage bond
  • Add an additional criterion to the list of mandatory bidder responsibility criteria
  • Authorize Public Utility Districts to contract for on-call public works projects
  • Authorize transit agencies (public transportation benefit area authorities) to use Job Order Contracting
Waiver of Payment/Performance Bond:  For public works projects of $35,000 or less, RCW 39.08.010 currently provides that "at the option of the contractor," a public agency "may, in lieu of the bond, retain fifty percent of the contract amount..."  In order to bring Washington law in compliance with federal small works bonding requirements, Senate Bill 5734, which passed both the House and Senate unanimously, addresses the following:
  • Changes
  • Project Amount:  Increases the $35,000 threshold to $150,000.  Unlike the payment/performance bond waiver provision applicable only for Limited Public Works Projects (Small Works Roster projects less than $35,000), this provision in RCW 39.08.010 does not require that the project less than $35,000 be bid through the Small Works Roster process.
  • Retainage Amount:  Decreases the 50% retainage to 10% retainage in order to waive the payment/performance bond.
  • Individual Sureties:  Allows a public agency to accept a payment/performance bond from an individual surety or sureties for projects of $150,000 or less, increased from $100,000.  All other sureties must be from an actual bonding company.
  • Prevailing Wage Priority:  Reiterates the already existing requirement of RCW 60.28.040 (5) that unpaid prevailing wages and benefits are the first place priority in the event of multiple competing claims against the retainage.
  • GC/CM:  Adds that this provision for withholding 10% retainage in lieu of obtaining a payment/performance bond on projects of $150,000 or less also applies to a General Contractor/Construction Manager (GC/CM).  This is a curious provision as all GC/CM projects are more than $150,000 and are multi-million dollar projects.  This addition doesn't appear to accomplish anything.
  • Comments
  • Agency Discretion?  Is a public agency required to accept the 10% retainage in lieu of obtaining the payment/performance bond?  The language of the law (both current and new) suggests that it is up to the contractor to make the request, and that the public agency "may" retain the 10% retainage in lieu of a bond.  It appears to provide the public agency with discretion whether to accept the request.  Consult with your attorney regarding how to interpret this issue.
  • Time Period for Releasing Retainage:  Senate Bill 5734 fails to correct an error in RCW 39.08.010 that states that the retainage is held for 30 days "after the date of final acceptance."  Because a subcontractor, supplier, or worker can file a claim against the retainage up to 45 days following final acceptance, an agency that releases the retainage before 45 days following final acceptance is at risk for paying court ordered claims filed between day 31 and 45 following final acceptance.  If an agency intends to use this waiver of the bond/increase of retainage provision, I recommend not releasing the retainage until a minimum of 45 days following final acceptance.  
  • No State Releases for Projects Less than $35,000:  Public agencies should recognize that for projects of $35,000 or less, the three state agencies (Revenue, Employment Security, and Labor and Industries) will not issue a release even though RCW 39.08.010 suggests they will.  See RCW 60.28.
Subcontractors and Retainage Bonds:  Current law (RCW 60.28.011 (6)) allows a contractor to submit a retainage bond to a public agency in lieu of retainage being withheld.  It also provides that if a contractor has submitted such a bond to a public agency, the contractor must, upon request of a subcontractor, accept a retainage bond from them in lieu of withholding retainage.  House Bill 1538 gives subcontractors additional rights to force a contractor to submit a retainage bond to a public agency:
  • Changes
  • Subcontractor Request:  A subcontractor may request the contractor to submit a retainage bond to the public agency for the portion of the subcontractor's retainage.  Currently, the subcontractor must wait for the contractor to take this action.
  • Subcontractor Pays Bond Premium:  The contractor may withhold the subcontractor's portion of the bond premium.
  • Deadline for Contractor to Submit Bond:  Within 30 days after the subcontractor's request, the contractor must submit the retainage bond to the public agency, unless "the bond is not commercially available, or the subcontractor refuses to pay the subcontractor's portion of the bond premium and to provide the contractor with a like bond."
  • Public Agency Discretion:  The public agency shall accept such a retainage bond that meets its requirements for the content of the bond and from an acceptable bonding company, "unless the public body can demonstrate good cause for refusing to accept it."
Additional Mandatory Bidder Responsibility Criterion:  Senate Bill 5301 adds to the list of mandatory bidder responsibility criteria in RCW 39.04.350 that public agencies must check on and validate prior to awarding any public works project.  The new criterion relates to the contractor's compliance with the state's minimum wage laws.
  • Changes
  • New Responsibility Criterion:  The new mandatory bidder responsibility criterion reads as follows: "Within the three-year period immediately preceding the date of the bid solicitation, not have been determined by a final and binding citation and notice of assessment issued by the department of labor and industries or through a civil judgment entered by a court of limited or general jurisdiction to have willfully violated, as defined in RCW 49.48.082, any provision of chapter 49.46, 49.48, or 49.52 RCW."  This language should be added to bid documents of public agencies in addition to the currently existing mandatory bidder responsibility criteria.  Language for bid documents is included in the Suggested Guidelines for Bidder Responsibility published by the Capital Projects Advisory Review Board (CPARB).  CPARB will need to revise the Guidelines to add this new criterion.
  • Documentation of Compliance:  Documentation to demonstrate a bidder's compliance with this new criterion is also included in SB 5301: "Before award of a public works contract, a bidder shall submit to the contracting agency a signed statement in accordance with RCW 9A.72.085 verifying under penalty of perjury that the bidder is in compliance with the responsible bidder criteria requirement of subsection (1)(g) of this section.  A contracting agency may award a contract in reasonable reliance upon such a sworn statement."  The reference to "subsection (1)(g)" will need to be adapted by public agencies to refer to the section of the bid documents that describes the actual criterion.
  • Comments
  • Standard Sworn Statement:  Rather than have each public agency develop their own sworn statement as required in the new law, hopefully either the State Department of Enterprise Services (DES) or the Municipal Research and Services Center (MRSC) will develop a standard that all agencies can give to the low bidder to complete as part of verifying their compliance with this additional mandatory bidder responsibility criterion.
On-Call Public Works Contracts Authorized for Public Utility Districts:  For the last five years, there has been considerable controversy in the state about whether public agencies may utilize on-call public works contracts that do not have a specific project scope.  The State Auditor's Office has noted that these contracts are not specifically authorized in state law, and they have begun issuing management letters as part of their review process.  Public Utility Districts (PUDs), under the provisions of Senate Bill 5036, are now authorized to bid and contract for on-call public works contracts.  This new law provides a possible framework for other types of public agencies obtaining the important and necessary authorization for on-call public works contracting. The bill passed the Senate unanimously and almost unanimously in the House with only one opposing vote.

Transit Agencies Authorized to Use Job Order Contracting:  House bill 1395, which passed the Senate unanimously and the House with only two opposing votes, adds "every public transportation benefit area authority as defined under RCW 36.57A.010" to the list of agencies and agency types authorized to use Job Order Contracting, one of three alternative public works contracting methods authorized in RCW 39.10.

Effective Date:  As of the most recent information, none of the bills have yet been signed by the governor, but it is anticipated he will sign them.  The new laws will be effective sometime in June or July.  This website may be used to obtain up to date information about the bills.

Mike Purdy in the News:  I was recently interviewed by and quoted in the following publications:
Mike Purdy's Public Contracting Blog
© 2017 by Michael E. Purdy Associates, LLC
http://PublicContracting.blogspot.com