1788-SAMSROACS3124.2SHB 1788S AMD429By Senator RoachPULLED 04/26/2003 Strike everything after the enacting clause and insert thefollowing:NEW SECTION.Sec. A new section is added to chapter 39.10 RCWto read as follows: (1) Public bodies may use a job order contract for public worksprojects when: (a) A public body has made a determination that the use of joborder contracts will benefit the public by providing an effective meansof reducing the total leadtime and cost for public works projects orrepair required at public facilities through the use of unit pricebooks and work orders by eliminating timeconsuming, costly aspects ofthe traditional public works process, which require separatecontracting actions for each small project; (b) The work order to be issued for a particular project does notexceed two hundred thousand dollars; (c) Less than twenty percent of the dollar value of the work orderconsists of items of work not contained in the unit price book; and (d) At least eighty percent of the job order contract must besubcontracted to entities other than the job order contractor. (2) Public bodies shall award job order contracts through acompetitive process utilizing public requests for proposals. Publicbodies shall make an effort to solicit proposals from a certifiedminority or certified womanowned contractor to the extent permitted bythe Washington state civil rights act, RCW 49.60.400. The public bodyshall publish, at least once in a legal newspaper of generalcirculation published in or as near as possible to that part of thecounty in which the public works will be done, a request for proposalsfor job order contracts and the availability and location of therequest for proposal documents. The public body shall ensure that therequest for proposal documents at a minimum includes: 1 (a) A detailed description of the scope of the job order contractincluding performance, technical requirements and specifications,functional and operational elements, minimum and maximum work orderamounts, duration of the contract, and options to extend the job ordercontract; (b) The reasons for using job order contracts; (c) A description of the qualifications required of the proposer; (d) The identity of the specific unit price book to be used; (e) The minimum contracted amount committed to the selected joborder contractor; (f) A description of the process the public body will use toevaluate qualifications and proposals, including evaluation factors andthe relative weight of factors. The public body shall ensure thatevaluation factors include, but are not limited to, proposal price andthe ability of the proposer to perform the job order contract. Inevaluating the ability of the proposer to perform the job ordercontract, the public body may consider: The ability of theprofessional personnel who will work on the job order contract; pastperformance on similar contracts; ability to meet time and budgetrequirements; ability to provide a performance and payment bond for thejob order contract; recent, current, and projected work loads of theproposer; location; and the concept of the proposal; (g) The form of the contract to be awarded; (h) The method for pricing renewals of or extensions to the joborder contract; (i) A notice that the proposals are subject to the provisions ofRCW 39.10.100; and (j) Other information relevant to the project. (3) A public body shall establish a committee to evaluate theproposals. After the committee has selected the most qualifiedfinalists, the finalists shall submit final proposals, including sealedbids based upon the identified unit price book. Such bids may be inthe form of coefficient markups from listed price book costs. Thepublic body shall award the contract to the firm submitting the highestscored final proposal using the evaluation factors and the relativeweight of factors published in the public request for proposals. 2 (4) The public body shall provide a protest period of at least tenbusiness days following the day of the announcement of the apparentsuccessful proposal to allow a protester to file a detailed statementof the grounds of the protest. The public body shall promptly make adetermination on the merits of the protest and provide to all proposersa written decision of denial or acceptance of the protest. The publicbody shall not execute the contract until two business days followingthe public body's decision on the protest. (5) The public body shall issue no work orders until it hasapproved, in consultation with the office of minority and women'sbusiness enterprises or the equivalent local agency, a plan prepared bythe job order contractor that equitably spreads certified women andminority business enterprise subcontracting opportunities, to theextent permitted by the Washington state civil rights act, RCW49.60.400, among the various subcontract disciplines. (6) Job order contracts may be executed for an initial contractterm of not to exceed two years, with the option of extending orrenewing the job order contract for one year. All extensions orrenewals must be priced as provided in the request for proposals. Theextension or renewal must be mutually agreed to by the public body andthe job order contractor. (7) The maximum total dollar amount that may be awarded under a joborder contract shall not exceed three million dollars in the first yearof the job order contract, five million dollars over the first twoyears of the job order contract, and, if extended or renewed, eightmillion dollars over the three years of the job order contract. (8) For each job order contract, public bodies shall not issue morethan two work orders equal to or greater than one hundred fiftythousand dollars in a twelvemonth contract performance period. (9) All work orders issued for the same project shall be treated asa single work order for purposes of the one hundred fifty thousanddollar limit on work orders in subsection (8) of this section and thetwo hundred thousand dollar limit on work orders in subsection (1)(b)of this section. (10) Any new permanent, enclosed building space constructed undera work order shall not exceed two thousand gross square feet. 3 (11) Each public body may have no more than two job order contractsin effect at any one time. (12) For purposes of chapters 39.08, 39.12, 39.76, and 60.28 RCW,each work order issued shall be treated as a separate contract. Thealternate filing provisions of RCW 39.12.040(2) shall apply to eachwork order that otherwise meets the eligibility requirements of RCW39.12.040(2). (13) The requirements of RCW 39.30.060 do not apply to requests forproposals for job order contracts. (14) Job order contractors shall pay prevailing wages for all workthat would otherwise be subject to the requirements of chapter 39.12RCW. Prevailing wages for a job order contract must be determined asof the time of the execution of the job order contract and anyextension or renewal. (15) If, in the initial contract term, the public body, at no faultof the job order contractor, fails to issue the minimum amount of workorders stated in the public request for proposals, the public bodyshall pay the contractor an amount equal to the difference between theminimum work order amount and the actual total of the work ordersissued multiplied by an appropriate percentage for overhead and profitcontained in the general conditions for Washington state facilityconstruction. This will be the contractor's sole remedy. (16) All job order contracts awarded under this section must beexecuted before July 1, 2007, however the job order contract may beextended or renewed as provided for in this section. (17) For purposes of this section, "public body" includes anyschool district.Sec. RCW 39.10.020 and 2001 c 328 s 1 are each amended to readas follows: Unless the context clearly requires otherwise, the definitions inthis section apply throughout this chapter. (1) "Alternative public works contracting procedure" means thedesignbuild and the general contractor/construction managercontracting procedures authorized in RCW 39.10.051 and 39.10.061,respectively. 4 (2) "Public body" means the state department of generaladministration; the University of Washington; Washington StateUniversity; every city with a population greater than seventy thousandand any public authority chartered by such city under RCW 35.21.730through 35.21.755 and specifically authorized as provided in RCW39.10.120(4); every county with a population greater than four hundredfifty thousand; every port district with total revenues greater thanfifteen million dollars per year; every public utility district withrevenues from energy sales greater than twentythree million dollarsper year; and those school districts proposing projects that areconsidered and approved by the school district project review boardunder RCW 39.10.115. (3) "Public works project" means any work for a public body withinthe definition of the term public work in RCW 39.04.010. (4) "Job order contract" means a contract between a public body orany school district and a registered or licensed contractor in whichthe contractor agrees to a fixed period, indefinite quantity deliveryorder contract which provides for the use of negotiated, definitivework orders for public works as defined in RCW 39.04.010. (5) "Job order contractor" means a registered or licensedcontractor awarded a job order contract. (6) "Unit price book" means a book containing specific prices,based on generally accepted industry standards and information, whereavailable, for various items of work to be performed by the job ordercontractor. The prices may include: All the costs of materials;labor; equipment; overhead, including bonding costs; and profit forperforming the items of work. (7) "Work order" means an order issued for a definite scope of workto be performed pursuant to a job order contract.Sec. RCW 39.08.030 and 1989 c 58 s 1 are each amended to readas follows: (1) The bond mentioned in RCW 39.08.010 shall be in an amount equalto the full contract price agreed to be paid for such work orimprovement, except under subsection (2) of this section, and shall beto the state of Washington, except as otherwise provided in RCW39.08.100, and except in cases of cities and towns, in which cases such 5 municipalities may by general ordinance fix and determine the amount ofsuch bond and to whom such bond shall run: PROVIDED, The same shallnot be for a less amount than twentyfive percent of the contract priceof any such improvement, and may designate that the same shall bepayable to such city, and not to the state of Washington, and all suchpersons mentioned in RCW 39.08.010 shall have a right of action in his,her, or their own name or names on such bond for work done by suchlaborers or mechanics, and for materials furnished or provisions andgoods supplied and furnished in the prosecution of such work, or themaking of such improvements: PROVIDED, That such persons shall nothave any right of action on such bond for any sum whatever, unlesswithin thirty days from and after the completion of the contract withan acceptance of the work by the affirmative action of the board,council, commission, trustees, officer, or body acting for the state,county or municipality, or other public body, city, town or district,the laborer, mechanic or subcontractor, or materialman, or personclaiming to have supplied materials, provisions or goods for theprosecution of such work, or the making of such improvement, shallpresent to and file with such board, council, commission, trustees orbody acting for the state, county or municipality, or other publicbody, city, town or district, a notice in writing in substance asfollows: To (here insert the name of the state, county ormunicipality or other public body, city, town or district):
Notice is hereby given that the undersigned (hereinsert the name of the laborer, mechanic or subcontractor,or materialman, or person claiming to have furnishedlabor, materials or provisions for or upon such contract orwork) has a claim in the sum of ...... dollars (here insertthe amount) against the bond taken from ...... (hereinsert the name of the principal and surety or sureties uponsuch bond) for the work of ...... (here insert a briefmention or description of the work concerning which saidbond was taken).
(here to be signed)
6 Such notice shall be signed by the person or corporation making theclaim or giving the notice, and said notice, after being presented andfiled, shall be a public record open to inspection by any person, andin any suit or action brought against such surety or sureties by anysuch person or corporation to recover for any of the items hereinbeforespecified, the claimant shall be entitled to recover in addition to allother costs, attorney's fees in such sum as the court shall adjudgereasonable: PROVIDED, HOWEVER, That no attorney's fees shall beallowed in any suit or action brought or instituted before theexpiration of thirty days following the date of filing of the noticehereinbefore mentioned: PROVIDED FURTHER, That any city may availitself of the provisions of RCW 39.08.010 through 39.08.030,notwithstanding any charter provisions in conflict herewith: ANDPROVIDED FURTHER, That any city or town may impose any other or furtherconditions and obligations in such bond as may be deemed necessary forits proper protection in the fulfillment of the terms of the contractsecured thereby, and not in conflict herewith. (2) Under the job order contracting procedure described in section1 of this act, bonds will be in an amount not less than the dollarvalue of all open work orders.Sec. RCW 39.30.060 and 2002 c 163 s 2 are each amended to readas follows: (1) Every invitation to bid on a prime contract that is expected tocost one million dollars or more for the construction, alteration, orrepair of any public building or public work of the state or a stateagency or municipality as defined under RCW 39.04.010 or an institutionof higher education as defined under RCW 28B.10.016 shall require eachprime contract bidder to submit as part of the bid, or within one hourafter the published bid submittal time, the names of the subcontractorswith whom the bidder, if awarded the contract, will subcontract forperformance of the work of: HVAC (heating, ventilation, and airconditioning); plumbing as described in chapter 18.106 RCW; andelectrical as described in chapter 19.28 RCW, or to name itself for thework. The prime contract bidder shall not list more than onesubcontractor for each category of work identified, unlesssubcontractors vary with bid alternates, in which case the prime 7 contract bidder must indicate which subcontractor will be used forwhich alternate. Failure of the prime contract bidder to submit aspart of the bid the names of such subcontractors or to name itself toperform such work or the naming of two or more subcontractors toperform the same work shall render the prime contract bidder's bidnonresponsive and, therefore, void. (2) Substitution of a listed subcontractor in furtherance of bidshopping or bid peddling before or after the award of the primecontract is prohibited and the originally listed subcontractor isentitled to recover monetary damages from the prime contract bidder whoexecuted a contract with the public entity and the substitutedsubcontractor but not from the public entity inviting the bid. It isthe original subcontractor's burden to prove by a preponderance of theevidence that bid shopping or bid peddling occurred. Substitution ofa listed subcontractor may be made by the prime contractor for thefollowing reasons: (a) Refusal of the listed subcontractor to sign a contract with theprime contractor; (b) Bankruptcy or insolvency of the listed subcontractor; (c) Inability of the listed subcontractor to perform therequirements of the proposed contract or the project; (d) Inability of the listed subcontractor to obtain the necessarylicense, bonding, insurance, or other statutory requirements to performthe work detailed in the contract; or (e) The listed subcontractor is barred from participating in theproject as a result of a court order or summary judgment. (3) The requirement of this section to name the prime contractbidder's proposed HVAC, plumbing, and electrical subcontractors appliesonly to proposed HVAC, plumbing, and electrical subcontractors who willcontract directly with the prime contract bidder submitting the bid tothe public entity. (4) This section does not apply to job order contract requests forproposals under section 1 of this act.NEW SECTION.Sec. A new section is added to chapter 39.12 RCWto read as follows: Job order contracts under section 1 of this act must pay prevailing 8 wages for all work that would otherwise be subject to the requirementsof this chapter. Prevailing wages for a job order contract must bedetermined as of the time the job order contract and any extension orrenewal is executed.Sec. RCW 60.28.011 and 2000 c 185 s 1 are each amended to readas follows: (1) Public improvement contracts shall provide, and public bodiesshall reserve, a contract retainage not to exceed five percent of themoneys earned by the contractor as a trust fund for the protection andpayment of: (a) The claims of any person arising under the contract;and (b) the state with respect to taxes imposed pursuant to Title 82RCW which may be due from such contractor. (2) Every person performing labor or furnishing supplies toward thecompletion of a public improvement contract shall have a lien uponmoneys reserved by a public body under the provisions of a publicimprovement contract. However, the notice of the lien of the claimantshall be given within fortyfive days of completion of the contractwork, and in the manner provided in RCW 39.08.030. (3) The contractor at any time may request the contract retainagebe reduced to one hundred percent of the value of the work remaining onthe project. (a) After completion of all contract work other than landscaping,the contractor may request that the public body release and pay in fullthe amounts retained during the performance of the contract, and sixtydays thereafter the public body must release and pay in full theamounts retained (other than continuing retention of five percent ofthe moneys earned for landscaping) subject to the provisions ofchapters 39.12 and 60.28 RCW. (b) Sixty days after completion of all contract work the publicbody must release and pay in full the amounts retained during theperformance of the contract subject to the provisions of chapters 39.12and 60.28 RCW. (4) The moneys reserved by a public body under the provisions of apublic improvement contract, at the option of the contractor, shall be: (a) Retained in a fund by the public body; 9 (b) Deposited by the public body in an interest bearing account ina bank, mutual savings bank, or savings and loan association. Intereston moneys reserved by a public body under the provision of a publicimprovement contract shall be paid to the contractor; (c) Placed in escrow with a bank or trust company by the publicbody. When the moneys reserved are placed in escrow, the public bodyshall issue a check representing the sum of the moneys reserved payableto the bank or trust company and the contractor jointly. This checkshall be converted into bonds and securities chosen by the contractorand approved by the public body and the bonds and securities shall beheld in escrow. Interest on the bonds and securities shall be paid tothe contractor as the interest accrues. (5) The contractor or subcontractor may withhold payment of notmore than five percent from the moneys earned by any subcontractor orsubsubcontractor or supplier contracted with by the contractor toprovide labor, materials, or equipment to the public project. Wheneverthe contractor or subcontractor reserves funds earned by asubcontractor or subsubcontractor or supplier, the contractor orsubcontractor shall pay interest to the subcontractor or subsubcontractor or supplier at a rate equal to that received by thecontractor or subcontractor from reserved funds. (6) A contractor may submit a bond for all or any portion of thecontract retainage in a form acceptable to the public body and from abonding company meeting standards established by the public body. Thepublic body shall accept a bond meeting these requirements unless thepublic body can demonstrate good cause for refusing to accept it. Thisbond and any proceeds therefrom are subject to all claims and liens andin the same manner and priority as set forth for retained percentagesin this chapter. The public body shall release the bonded portion ofthe retained funds to the contractor within thirty days of acceptingthe bond from the contractor. Whenever a public body accepts a bond inlieu of retained funds from a contractor, the contractor shall acceptlike bonds from any subcontractors or suppliers from which thecontractor has retained funds. The contractor shall then release thefunds retained from the subcontractor or supplier to the subcontractoror supplier within thirty days of accepting the bond from thesubcontractor or supplier. 10 (7) If the public body administering a contract, after asubstantial portion of the work has been completed, finds that anunreasonable delay will occur in the completion of the remainingportion of the contract for any reason not the result of a breachthereof, it may, if the contractor agrees, delete from the contract theremaining work and accept as final the improvement at the stage ofcompletion then attained and make payment in proportion to the amountof the work accomplished and in this case any amounts retained andaccumulated under this section shall be held for a period of sixty daysfollowing the completion. In the event that the work is terminatedbefore final completion as provided in this section, the public bodymay thereafter enter into a new contract with the same contractor toperform the remaining work or improvement for an amount equal to orless than the cost of the remaining work as was provided for in theoriginal contract without advertisement or bid. The provisions of thischapter are exclusive and shall supersede all provisions andregulations in conflict herewith. (8) Whenever the department of transportation has contracted forthe construction of two or more ferry vessels, sixty days aftercompletion of all contract work on each ferry vessel, the departmentmust release and pay in full the amounts retained in connection withthe construction of the vessel subject to the provisions of RCW60.28.020 and chapter 39.12 RCW. However, the department oftransportation may at its discretion condition the release of fundsretained in connection with the completed ferry upon the contractordelivering a good and sufficient bond with two or more sureties, orwith a surety company, in the amount of the retained funds to bereleased to the contractor, conditioned that no taxes shall becertified or claims filed for work on the ferry after a period of sixtydays following completion of the ferry; and if taxes are certified orclaims filed, recovery may be had on the bond by the department ofrevenue and the materialmen and laborers filing claims. (9) Except as provided in subsection (1) of this section,reservation by a public body for any purpose from the moneys earned bya contractor by fulfilling its responsibilities under publicimprovement contracts is prohibited. 11 (10) Contracts on projects funded in whole or in part by farmershome administration and subject to farmers home administrationregulations are not subject to subsections (1) through (9) of thissection. (11) This subsection applies only to a public body that hascontracted for the construction of a facility using the generalcontractor/construction manager procedure, as defined under RCW((39.10.060)) 39.10.061. If the work performed by a subcontractor onthe project has been completed within the first half of the timeprovided in the general contractor/construction manager contract forcompleting the work, the public body may accept the completion of thesubcontract. The public body must give public notice of thisacceptance. After a fortyfive day period for giving notice of liens,and compliance with the retainage release procedures in RCW 60.28.021,the public body may release that portion of the retained fundsassociated with the subcontract. Claims against the retained fundsafter the fortyfive day period are not valid. (12) Unless the context clearly requires otherwise, the definitionsin this subsection apply throughout this section. (a) "Contract retainage" means an amount reserved by a public bodyfrom the moneys earned by a person under a public improvement contract. (b) "Person" means a person or persons, mechanic, subcontractor, ormaterialperson who performs labor or provides materials for a publicimprovement contract, and any other person who supplies the person withprovisions or supplies for the carrying on of a public improvementcontract. (c) "Public body" means the state, or a county, city, town,district, board, or other public body. (d) "Public improvement contract" means a contract for publicimprovements or work, other than for professional services, or a workorder as defined in RCW 39.10.020.Sec. RCW 39.10.902 and 2002 c 46 s 4 are each amended to readas follows: The following acts or parts of acts, as now existing or hereafteramended, are each repealed, effective July 1, 2007: (1) RCW 39.10.010 and 1994 c 132 s 1; 12 (2) RCW 39.10.020 and 2003 c ... s 2 (section 2 of this act), 2001c 328 s 1, 2000 c 209 s 1, 1997 c 376 s 1, & 1994 c 132 s 2; (3) RCW 39.10.030 and 1997 c 376 s 2 & 1994 c 132 s 3; (4) RCW 39.10.040 and 1994 c 132 s 4; (5) RCW 39.10.051 and 2002 c 46 s 1 & 2001 c 328 s 2; (6) RCW 39.10.061 and 2002 c 46 s 2 & 2001 c 328 s 3; (7) RCW 39.10.065 and 1997 c 376 s 5; (8) RCW 39.10.067 and 2002 c 46 s 3 & 2000 c 209 s 3; (9) RCW 39.10.070 and 1994 c 132 s 7; (10) RCW 39.10.080 and 1994 c 132 s 8; (11) RCW 39.10.090 and 1994 c 132 s 9; (12) RCW 39.10.100 and 1994 c 132 s 10; (13) RCW 39.10.115 and 2001 c 328 s 4 & 2000 c 209 s 4; (14) RCW 39.10.900 and 1994 c 132 s 13; ((and)) (15) RCW 39.10.901 and 1994 c 132 s 14; and (16) RCW 39.10. and 2003 c ... s 1 (section 1 of this act).NEW SECTION.Sec. A new section is added to chapter 39.12 RCWto read as follows: The following acts or parts of acts, as now existing or hereafteramended, are each repealed, effective July 1, 2007: RCW 39.12. and 2003 c . . . s 5 (section 5 of this act).SHB 1788S AMD429By Senator RoachPULLED 04/26/2003 On page 1, line 1 of the title, after works; strike the remainderof the title and insert amending RCW 39.10.020, 39.08.030, 39.30.060,60.28.011, and 39.10.902; adding a new section to chapter 39.10 RCW;and adding new sections to chapter 39.12 RCW.--- END --- 13