BP BHEAD INT S [atlas:bill]

AN ACT Relating to competitive bidding on public contracts; amending RCW 39.30.060; and creating a new section.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

NEW SECTION. Sec. 1. The legislature finds that the practice of substitution of named subcontractors for reasons other than those under RCW 39.30.060(2) in connection with the construction, alteration, or repair of any public building or public work of the state or a state agency or municipality as defined under RCW 39.04.010 or an institution of higher education as defined under RCW 28B.10.016 can deprive the public of the full value of its public works construction budget, can adversely affect competition among bidders and subcontractors, and can lead to insolvencies and loss of wages to employees.

Sec. 2. RCW 39.30.060 and 1995 c 94 s 1 are each amended to read as follows:

(1) Every invitation to bid on a contract that is expected to cost in excess of one hundred thousand dollars for the construction, alteration, or repair of any public building or public work of the state or a state agency or municipality as defined under RCW 39.04.010((,)) or an institution of higher education as defined under RCW 28B.10.016((~~, or a school district~~)) shall require each bidder to submit as part of the bid, or within one hour after the published bid submittal time, the names of ((~~the~~)) each subcontractor((s)) performing any work described in construction specification institute division 15 of the contract specifications, performing any work described in construction specification institute division 16 of the contract specifications or whose subcontract amount is more than ((~~ten~~)) fifteen percent of the bid price with whom the bidder, if awarded the contract, will subcontract for performance of the work designated on the list to be submitted with the bid. Failure to name each such subcontractor((s)) or naming of two or more subcontractors for the same work shall render the bidder's bid nonresponsive and, therefore, void.

(2) A bidder whose bid is accepted shall not substitute another subcontractor for a subcontractor who is named under subsection (1) of this section unless:

(a) The awarding authority objects to the subcontractor and requests in writing a change in the subcontractor; or

(b) The substitution is approved by the awarding authority, and any of the following applies:

(i) The subcontractor, after having a reasonable opportunity, fails or refuses to execute a written contract with the bidder when such subcontract was offered to the subcontractor with the same terms that all other subcontractors on the project were offered;

(ii) The named subcontractor files for bankruptcy or becomes insolvent;

(iii) The named subcontractor fails or refuses to perform its subcontract within a reasonable time;

(iv) The named subcontractor fails, refuses, or is unable to furnish a performance bond and payment bond where the named subcontractor agreed in writing to furnish a performance and payment bond before being named by the bidder under subsection (1) of this section;

(v) When the bidder demonstrates to the awarding agency that the name of the subcontractor was listed as a result of a good faith, inadvertent clerical error;

(vi) When the named subcontractor is not registered under chapter 18.27 RCW or licensed under chapter 19.28 RCW; or

(vii) When the bidder determines that the work performed by the named subcontractor is substantially unsatisfactory and not in substantial accordance with the contract documents or that the subcontractor is substantially delaying or disrupting the progress of the work.

(3) Substitution of named subcontractors for reasons other than those under subsection (2) of this section is prohibited. Any bidder who violates this section is liable to the named subcontractor in the amount of ten percent of the substituted subcontractor's bid price or subcontract price. Legal action to enforce this section shall be brought in the superior court of the county in which the work is to be performed and the prevailing party in such an action is entitled to recover reasonable attorneys' fees, costs, and disbursements.