WSR 20-19-123
PROPOSED RULES
DEPARTMENT OF TRANSPORTATION
[Filed September 22, 2020, 8:23 a.m.]
Original Notice.
Preproposal statement of inquiry was filed as WSR 20-01-107.
Title of Rule and Other Identifying Information: WAC 468-16-180 Suspension of qualification.
Hearing Location(s): On November 5, 2020, at 2:30 p.m., at Transportation Building, Nisqually Room, 310 Maple Park Avenue S.E., Olympia, WA 98504.
Date of Intended Adoption: November 6, 2020.
Submit Written Comments to: Denys Tak, 310 Maple Park Avenue S.E., Olympia, WA 98504, email DOTConstruction@wsdot.wa.gov, by November 2, 2020.
Assistance for Persons with Disabilities: Contact Karen Engle, phone 360-704-6362, TTY 711, email Engleka@wsdot.wa.gov, by November 2, 2020.
Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: Chapter 468-16 WAC creates the rules for prequalification of contractors for highway construction contracts required by RCW
47.28.070. This revision involves adding new grounds for suspending a contractor's prequalification.
Reasons Supporting Proposal: Ensuring that contractors on Washington state department of transportation (WSDOT) projects are meeting the requirements of Title VII of the Civil Rights Act of 1964 and the Washington law against discrimination.
Rule is not necessitated by federal law, federal or state court decision.
Name of Proponent: WSDOT, construction division, governmental.
Name of Agency Personnel Responsible for Drafting: Denys Tak, 310 Maple Park Avenue S.E., Room 2D05, Olympia, WA 98504, 360-705-7833; Implementation and Enforcement: Jenna Fettig, 310 Maple Park Avenue S.E., Room 2D20, Olympia, WA 98504, 360-705-7017.
A school district fiscal impact statement is not required under RCW
28A.305.135.
A cost-benefit analysis is not required under RCW
34.05.328. RCW
34.05.328 does not apply to the adoption of these rules. WSDOT is not a listed agency under RCW
34.05.328 (5)(a)(i).
This rule proposal, or portions of the proposal, is exempt from requirements of the Regulatory Fairness Act because the proposal:
Is exempt under RCW
19.85.025(3) as the rule content is explicitly and specifically dictated by statute.
Explanation of exemptions: No small business economic impact statement has been prepared under chapter
19.85 RCW. Chapter 468-16 WAC pertains to the process of prequalifying contractors to bid on WSDOT contracts. No changes were made to the WAC that would affect the cost or time for businesses to comply with the rule.
September 21, 2020
Shannon Gill, Interim Director
Risk Management and Legal Services
AMENDATORY SECTION(Amending WSR 15-01-170, filed 12/23/14, effective 1/23/15)
WAC 468-16-180Suspension of qualification.
(1) A suspension may be ordered for cause or for a period pending the completion of investigation and any ensuing legal action for revocation of qualification.
(2) The secretary may, upon determination from reports, other documents, or through investigation that cause exists to suspend the qualification of a contractor, impose suspension upon a contractor.
(3) The secretary may immediately suspend qualification for:
(a) Incompetency found detrimental to timely project completion or to the safety of the public or employees.
(b) Inadequate performance on one or more projects.
(c) Infractions of rules, regulations, specifications, and instructions which may adversely affect public health, welfare, and safety.
(d) Uncompleted work which might prevent the prompt completion of other work.
(e) A finding of noncompliance and refusal to agree to take corrective action, and/or failure to implement agreed upon corrective action to comply with equal employment opportunity, women's, minority and disadvantaged business enterprise requirements or state apprentice utilization requirements.
(f) Repeated findings of noncompliance (two or more) with equal employment opportunity, women's, minority, and disadvantaged business enterprise requirements or state apprentice utilization requirements.
(g) Debarment or suspension from participation in federal or state projects.
(h) Pending completion of debarment proceedings in federal or state projects.
(i) A finding of noncompliance and refusal to agree to take corrective action, and/or failure to implement agreed upon corrective action to comply with all requirements of Title VII of the Civil Rights Act of 1964 and the Washington law against discrimination.
(j) Repeated findings of noncompliance (two or more) with the requirements set forth in subsection (3)(i) of this section.
(4) The periods of suspension for acts or deficiencies enumerated above are as follows:
(a) For subsection (3)(a) and (e) of this section - Three months.
(b) For subsection (3)(b), (c), (d), and (f) of this section - Six months.
(c) For subsection (3)(g) of this section - For duration of debarment or suspension by the federal or other state agency.
(d) For subsection (3)(h) of this section - Until a determination is made by the federal or other state agency.
(e) For subsection (3)(i) of this section - A minimum of one year.
(f) For subsection (3)(j) of this section - A minimum of two years.
(5) The secretary may reduce the period of suspension upon the contractor's supported request for reasons including, but not limited to:
(a) Newly discovered evidence;
(b) Elimination of causes for which the suspension was imposed.