Background:

Public Works Contracting.

State law provides that public bodies must generally award contracts for public works following a competitive process in which the contract is awarded to the bidder submitting the lowest responsive bid. A public body's specific statutes generally defines the process for competitive bidding, and often sets forth the specific dollar amount that necessitates a public bid.

Contracting Procedures.

The traditional contracting method of awarding a public works contract to the lowest responsible bidder is typically referred to as the design-bid-build (DBB) contracting method. Under the DBB procedure, the architectural design phase of a project is separate from the construction process. After the detailed design and construction documents are completed by an architectural firm, the construction phase of the project is put out for competitive bid. A construction contract is awarded to the lowest responsible bidder.

There are three alternative procedures authorized by law: Design-Build (DB), General Contractor/Construction Manager (GCCM), and Job Order Contracting (JOC).

The DB method is a multi-step competitive process to award a contract to a single firm that agrees to both design and build a public facility that meets specific criteria. The contract is awarded following a public request of proposals for design-build services. Following extensive evaluation of the proposals, the contract is awarded to the firm that submits the best and final proposal with the lowest price.

The GCCM method is one in which the public entity employs the services of a project management firm that bears significant responsibility and risk in the contracting process. The public entity first contracts with an architectural and engineering firm to design the facility and, early in the project, also contracts with a GCCM firm to assist in the design of the facility, manage the construction of the facility, act as the general contractor, and guarantee that the facility will be built within budget.

Under the JOC method, the public entity awards a contract to a contractor who agrees to perform an indefinite quantity of public works jobs, defined by individual work orders, over a fixed period of time.

Capital Projects Advisory Review Board.

The Capital Projects Advisory Review Board (CPARB) was established in 2005 to evaluate public capital projects construction processes and to advise the Legislature on policies related to alternative public works delivery methods. Specifically, the CPARB must develop and recommend to the Legislature:

criteria that may be used to determine effective and feasible use of alternative contracting procedures;
qualification standards for general contractors bidding on alternative public works projects; and
policies to further enhance the quality, efficiency, and accountability of capital construction projects through the use of traditional and alternative delivery methods, and recommendations on expansion, continuation, elimination, or modification of alternative public works contracting methods.

The CPARB must also evaluate the future use of other alternative contracting procedures, including competitive negotiation contracts.

The University of Washington's Contracting Authority.

Several statutes and statutory schemes address public works contracting for the University of Washington (UW), including statutes that apply to all state colleges and universities generally; statutes that apply specifically to the UW, and statutory schemes addressing public works and alternative public works contracting procedures.

The UW's specific statutory authority allows it to enter into such contracts as the Board of Regents (Board) deems essential to its purposes, except as otherwise provided by law. Another specific statute allows the Board to enter into such contracts with one or more contractors for the erection and construction of university buildings or improvements and that such contracts shall be let after public notice and under such regulations as established by the Board or as otherwise provided by law.

Public works statutes that apply to state colleges and universities requires that when the cost of a public works project meets or exceeds $50,000 (or $35,000 if the work involves one trade or craft area), complete plans and specifications must be prepared, and then a contract must be put out for public bid and awarded to the lowest responsible bidder.

An Attorney General Opinion was requested to determine if the UW had the authority to adopt a rule to allow the use of an alternative contracting procedure not currently authorized by law. The informal opinion concluded that the Legislature's apparent intent was to require the UW to follow the requirements relating to alternative public works contracting procedures when employing one of the three alternative contracting methods, however, its specific public works contracting authority permits it to establish other alternative contracting procedures by rule.

Summary of Bill:

The stated intent of the legislation is to clarify that, unless otherwise specifically provided for in law, public bodies that want to use an alternative public works contracting procedure may use only those procedures as specifically authorized under the statutes for alternative public works or those approved for use as a demonstration project by the CPARB.

The UW Board is specifically required to comply with the requirements of chapter 39.10 RCW when using any alternative contracting procedures, and it must seek evaluation and approval of the CPARB prior to adopting an alternative procedure that is not specifically authorized by law.

The CPARB is required to evaluate and approve alternative contracting procedures as demonstration projects. Evaluations of alternative procedures not authorized specifically by law, including a recommendation on the use of a new procedure by other public bodies, must be submitted to the appropriate committees of the Legislature. The term "alternative public works contracting procedure" is expanded to include new contracting procedures submitted to the CPARB for approval to use as a demonstration project.