Washington State legislative changes from 2011 (reciprocal bid preference law), 2012 (bills that passed and didn't pass), and 2013 (potential legislation affecting re-authorization of Alternative Public Works contracting.

1. Legislative Updates on
Public Works
Contracting
Mike Purdy
Michael E. Purdy Associates, LLC
(206) 762-2699 (office)
(206) 295-1464 (cell)
mpurdy@mpurdy.com
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2. Agenda
1. 2012 Legislative Session
3. 2011 Legislative Session
 Reciprocal Bid Preference
4. CPARB Alternative Public Works
Reauthorization Committee
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3. 2012 Legislative Session
 Bills that passed
– Job Order Contracting
– Prevailing Wages
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4. 2012 Legislative Session
- Job Order Contracting – Passed
 Engrossed House Bill 2328
 Unanimously passed both Senate and
House
 Signed by Governor on March 29, 2012
 Effective on June 7, 2012
– 90 days after March 8, 2012 adjournment
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5. 2012 Legislative Session
- Job Order Contracting – Existing
Existing Authorized Agencies
State Department of Enterprise Services (formerly GA)
University of Washington
Washington State University
Cities with population over 70,000
Counties with population over 450,000
Port Districts with revenues greater than $15 million per year
Public Utility Districts with revenues from energy sales greater
than $23 million per year
All School Districts
5 State ferry system

6. 2012 Legislative Session
- Job Order Contracting – Passed
Authorized Agencies – Added by Legislature
Regional universities
 Western Washington University
 Central Washington University
 Eastern Washington University
The Evergreen State College
Sound Transit
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7. 2012 Legislative Session
- Job Order Contracting – Passed
Amount of each Work Order
Existing Amount New Amount
$300,000 $350,000
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8. 2012 Legislative Session
- Job Order Contracting – Passed
CPARB reporting year basis
Existing New
Contract Year July 1 – June 30
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9. 2012 Legislative Session
- Job Order Contracting – NOT Passed
 Provisions that did NOT pass
– Yearly Dollar Threshold: Would have raised from
$4 million per year to $6 million per year the total
dollar amount of work orders an agency could
execute
– Contract Term: Work orders executed within the
contract term could have been completed after
the end of the contract term
– Subcontracted Percentage: Amount of work to be
subcontracted would have changed from 90% of
the actual work in a Job Order Contract to 60% of
the Job Order Contract total
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10. 2012 Legislative Session
- Job Order Contracting – NOT Passed
 HB 2369 did NOT pass
– Regional Transit Authorities: Would have
permitted all Regional Transit Authorities to use
Job Order Contracting
 Sound Transit
– Will be the only authorized Regional Transit
Authority to use Job Order Contracting
 Engrossed House Bill 2328
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11. 2012 Legislative Session
- Prevailing Wages – Passed
 Substitute Senate Bill 6421
 Unanimously passed both Senate and
House
 Signed by Governor on March 29, 2012
 Effective on June 7, 2012
– 90 days after March 8, 2012 adjournment
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12. 2012 Legislative Session
- Prevailing Wages – Passed
Filing Affidavits of Wages Paid
 On Behalf of: Allows contractor to file the Affidavit
of Wages Paid on behalf of a subcontractor if
subcontractor is out of business or fails to file
 Lower Tier: Applies to subcontractors who contract
with lower tier subcontractors
 Timing: May not occur sooner than 31 days after
Final Acceptance
 Liability: Contractor filing Affidavit accepts
responsibility for unpaid prevailing wages by
subcontractor
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13. 2012 Legislative Session
- Bills That Did NOT Pass
Design-Build on WSDOT projects
 Second Substitute Senate Bill 5250 would have
required WSDOT to:
– Threshold: Use Design-Build on projects
over $5 million, down from current $10
million
– Reporting: Report to legislature each
biennium on the performance of Design-
Build on its projects
 Passed Senate 47-1. House didn’t vote
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14. 2012 Legislative Session
- Bills That Did NOT Pass
Use of Design-Build
 HB 2327 would have:
– Portable Facilities: Permitted Design-
Build for the erection of portable facilities
as defined in WAC 392-343-018
– Modular Buildings: Restricted Design-
Build modular buildings to “not more than
five prefabricated modular buildings per
installation site.”
 Was sponsored by CPARB
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15. 2012 Legislative Session
- Bills That Did NOT Pass
GC/CM and Design-Build Selection
 HB 2327 would also have added the
following selection criteria:
 Firm’s outreach plan to include small,
economically and socially disadvantage
businesses
 Firm’s past performance in the
utilization of small, economically and
socially disadvantaged businesses
 Was sponsored by CPARB
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16. 2012 Legislative Session
- Bills That Did NOT Pass
Protests on GC/CM Projects
 House Bill 1971 would have:
– Protest Process: Established protest
process for selection of EC/CM and
MC/CM
 At both short list and finalist stages
– Owner’s Role: Added Owner to review
protests
 Sponsored by CPARB. Introduced in 2011.
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17. 2012 Legislative Session
- Bills That Did NOT Pass
No Retainage on Federal Projects
 Senate Bill 6063 would have:
– Prohibited withholding of retainage on federally
funded transit facilities and relying on bond
 Federal Regulations: Response to U.S. DOT
regulations requiring prompt payment to
subcontractors
 2011 Legislation: Would have corrected 2011
amendment to RCW 60.28.011 only prohibiting
retainage on federally funded highways, roads,
streets.
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18. 2012 Legislative Session
- Bills That Did NOT Pass
Small Businesses on Small Works Rosters
 Substitute House Bill 1173 would have:
 Limited Competition on Limited Public Works:
– Threshold increased from $1 to $7 million
– Contractor annual gross revenue
 Definitions: Micro-business and Mini-business
– Revenue and location based
– Owners to adopt “additional procedures to
encourage” use of these businesses on Small
Works Roster projects
– “Principal office located in Washington” conflicts
with RCW 39.04.380 for resident contractor:
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“physical office located in Washington”

19. 2012 Legislative Session
- Bills That Did NOT Pass
Streamlining Small Public Works Projects
 House Bill 1970 would have:
– Bonding and Retainage: Permitted agencies to
waive bonding and retainage on projects of
$5,000 or less, even if not using the Small Works
Roster. Agencies would pick up liability for claims
– Prevailing Wage Forms: Increased from $2,500
to $5,000 when agencies could accept prevailing
wage forms under Limited Public Works process
without L&I certification
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 Sponsored by CPARB. Introduced in 2011

20. 2012 Legislative Session
- Bills That Did NOT Pass
Requiring Certified Payrolls
 Senate Bill 6416 would have required:
 Earlier Submission of Intents: Submission of
Statement of Intent to Pay Prevailing Wages before an
Owner “finalizes a contract for any public work.”
 Payrolls Before Payment: Submission of electronic
payrolls from contractor and subcontractors before any
payment to contractor.
 Publish Payrolls: Owners to publish payrolls on a
“publicly accessible database” after deleting Social
Security numbers. Owners would also forward
payrolls to L&I.
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21. 2012 Legislative Session
- Bills That Did NOT Pass
Prevailing Wage Liability for Successor Firms
 House Bill 2669 would have required:
– Successor Firm Liability: Assumption of
prevailing wage liability by a successor
contracting entity for previous prevailing wage
violations
 If successor entity knew of the violation at time
of sale
 Defines successor entity
 Passed the House 54-41. No Senate vote
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22. 2011 Legislative Session
- Reciprocal Bid Preference
If “a bid is received from a nonresident
contractor from a state that provides a
percentage bidding preference, a comparable
percentage disadvantage must be applied to
the bid of that nonresident contractor.”
RCW 39.04.380
 States with 5% public works bid preference:
Alaska, Nevada, Wyoming, New Mexico
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 Effective March 30, 2012

23. 2011 Legislative Session
- Reciprocal Bid Preference
 Definition of nonresident contractor:
– From a state with a percentage bid
preference and
– At the time of bidding, does not have a
physical office located in Washington
 State of residence for a nonresident
contract is the state in which the contractor
was incorporated or the business entity was
formed
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24. 2011 Legislative Session
- Reciprocal Bid Preference
Bidder In- Out-of- Bid Preference Bid Price for
State State Amount % for state Evaluation
of out-of- Purposes
state firm
1 X $100,000 5% $105,000
2 X $103,000 N/A $103,000
3 X $104,000 0% $104,000
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25. CPARB Alternative Public Works
Reauthorization Committee
 June 2013 Sunset: RCW 39.10 –
Alternative Public Works
 Committee: Meeting this year to address
issues and develop legislation for CPARB
and Legislature
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26. CPARB Alternative Public Works
Reauthorization Committee
 Job Order Contracting Issues:
– Yearly dollar threshold increase
– Contract term
– Subcontracted percentage
– Expansion of authorized agencies
– Use JOC contracts through piggybacking
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27. CPARB Alternative Public Works
Reauthorization Committee
 GC/CM issues:
– Owner role when GC/CM bids to self-perform
– Prequalification by GC/CM when bidding to self-
perform
– Flexibility regarding unsuccessful MACC
negotiations
– When should subcontract bidding occur. Trend
toward more early bidding
– Selection criteria relating to small businesses
– Protest procedures for EC/CM and MC/CM
– Subcontract bidding and union membership
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28. CPARB Alternative Public Works
Reauthorization Committee
 Design-Build issues:
– More flexibility to provide for progressive Design-
Build
– Smaller projects by certified agencies without
Project Review Committee approval
– Modify criteria for when Design-Build may be
used
– Selection criteria relating to small businesses
– Portable facilities and modular buildings
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29. Free e-mail Subscription to my Blog:
http://PublicContracting.blogspot.com
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30. Michael E. Purdy Associates, LLC
- Contact Information
Office (206) 762-2699
Cell (206) 295-1464
E-mail mpurdy@mpurdy.com
Web www.mpurdy.com
Blog http://PublicContracting.blogspot.com
http://www.linkedin.com/in/mpurdy
http://twitter.com/#!/MikePurdy
https://www.facebook.com/pages/Mic
hael-E-Purdy-Associates-
LLC/92090808667
PO Box 46181, Seattle, WA 98146 Mike Purdy
30 Principal

31. Experience: After more than 30 years as a manager in public contracting
and procurement in Seattle, Mike Purdy retired in early February 2010.
He began his career with the City of Seattle, where he was the City’s
Contracting Manager. After more than 21 years with the City, he served
for five years at the Seattle Housing Authority as Contracting and
Procurement Manager. Most recently, he was the Contracts Manager for
the University of Washington’s capital projects office, where he was
responsible for managing design and construction contracts for more than
$1 billion worth of projects.
Michael E. Purdy Associates, LLC: In his retirement, Mike remains active
in contracting and legislative issues as the principal of Michael E. Purdy
Associates, LLC (www.mpurdy.com), a consultant firm established in 2005
to help public agencies, contractors, and consultants develop and
implement effective contracting strategies. He is a frequent speaker and
trainer on public contracting issues. Mike also maintains the popular
Public Contracting Blog at http://PublicContracting.blogspot.com, designed
to keep public agencies, contractors, and consultants up-to-date on key
developments in contracting. He is also a member of a number of industry
wide committees and task forces.
Education: Mike has a bachelor’s degree in business and public
administration and an MBA, both from the University of Puget Sound, and
a master of divinity degree from Fuller Theological Seminary.
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32. Michael E. Purdy Associates, LLC
- The Fine Print
 Copyright: This document is copyrighted by
Michael E. Purdy Associates, LLC. All rights
reserved. No part of this document may be
reproduced, modified, or transmitted in any
form or by any means, electronic, mechanical
or otherwise without prior written permission.
 Not Legal Advice: The opinions, information,
and interpretations provided in this document
are the personal opinions of Mike Purdy, are
for educational and informational purposes
only, and do not represent legal advice. Mike
Purdy is not an attorney. When appropriate,
readers of this document are encouraged to
consult with an attorney to obtain legal advice.
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