Developing Pre-Qualification Criteria for Work GC/CM Intends to Submit a Bid On

Under Washington State's GC/CM law (General Contractor/Construction Manager), the GC/CM may establish subcontractor bidder eligibility requirements, thus essentially pre-qualifying which subcontractors may submit bids on various trade subcontract bid packages (RCW 39.10.400).

Other provisions of chapter 39.10 RCW provide that the GC/CM may submit a bid on a subcontract bid package, competing against subcontractors also bidding on the work as long as the body of work is typically performed by the GC/CM. In order to self-perform the work, the GC/CM must be the low bidder (RCW 39.10.390). When the GC/CM intends to bid to self-perform work, the public agency, instead of the GC/CM, is responsible for managing the bidding process, including receipt and opening of the bids. This is done in order to prevent a conflict of interest.

But may a GC/CM who intends to bid on a subcontract bid package to self-perform the work establish bidder eligibility requirements for bidding on the work - thus providing them with the opportunity to essentially limit their competition by how the criteria are drafted? This issue is not specifically addressed in chapter 39.10 RCW.

It seems clear to me that the principle of avoiding a conflict of interest should guide how this situation is handled. Thus, if the GC/CM intends to bid on a subcontract bid package, and believes there should be bidder eligibility requirements for the bidders on the subcontract package, the public agency, and not the GC/CM, should be the one to establish those criteria and to conduct the required hearing.

Otherwise, the subcontract bidding process would be tainted by the GC/CM's conflict of interest.

Making this explicit and clear in Washington State law would be a good clarification for all parties.