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
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
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:
- 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.
- 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.
- 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.
- 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.
- 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.
- Ensures accountability, compliance and
consistent interpretation and application with all current and
applicable state and federal laws, agency policies and procedures, rules
and regulations.
- 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.
- 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.
Mike Purdy's Public Contracting Blog
© 2017 by Michael E. Purdy Associates, LLC
http://PublicContracting.blogspot.com
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