AN ACT Relating to highway and other public contracting procedures; amending RCW 47.28.090 and 36.32.250; and adding a new section to chapter 47.28 RCW.

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

Sec. 1. Section 47.28.090, chapter 13, Laws of 1961 as last amended by section 17, chapter 120, Laws of 1983 and RCW 47.28.090 are each amended to read as follows:

(1) At the time and place named in the call for bids the department of transportation shall publicly open and read the final figure in each of the bid proposals properly filed and read only the bid items on the three lowest bids, and shall award the contract to the lowest responsible bidder unless the department has, for good cause, continued the date of opening bids to a day certain, or rejected ((~~said~~)) the bid((~~: PROVIDED, That~~)). Any bid may be rejected if the bidder has previously defaulted in the performance of and failed to complete a written public contract, or has been convicted of a crime arising from a previous public contract. If the lowest responsible bidder fails to meet the provisions or specifications requiring compliance with chapter 39.19 RCW and the rules adopted to implement that chapter, the department may award the contract to the next lowest responsible bidder which does meet the provisions or specifications or may reject all bids and readvertise. All bids shall be under sealed cover and accompanied by deposit in cash, certified check, cashier's check, or surety bond in an amount equal to five percent of the amount of the bid, and no bid ((~~shall~~)) may be considered unless the deposit is enclosed ((~~therewith~~)) with it.

(2) The department's determination of the lowest responsible bidder shall be based upon the following elements, all of which shall be given equal consideration:

(a) The ability, capacity, and skill of the bidder to perform the contract;

(b) The character, integrity, reputation, judgment, experience, and efficiency of the bidder;

(d) The quality of performance of previous contracts;

(e) The previous and existing compliance by the bidder with laws relating to the contract;

(f) Adherence to the bid specifications;

(g) Financial capability;

(h) The bidded price;

(i) Such other information as may be viewed having a bearing on the decision to award the contract.

(3) The contract shall be awarded to the lowest responsible Washington bidder if the bid is not more than five percent higher than that of the lowest responsible nonresident bidder.

(4) For purposes of this section, a Washington bidder is a bidder who:

(a) Holds a certificate of registration by the state department of labor and industries;

(b) Submits a bid under the name as appearing on the certificate of registration;

(c) Has maintained a place of business within the state for a period of six months immediately preceding the date of the bid.

Sec. 2. Section 36.32.250, chapter 4, Laws of 1963 as last amended by section 1, chapter 267, Laws of 1977 ex. sess. and RCW 36.32.250 are each amended to read as follows:

(1) No contract, lease, or purchase ((~~shall~~)) may be entered into by the county legislative authority or by any elected or appointed officer of ((~~such~~)) the county until after bids have been submitted to the county legislative authority upon specifications therefor. ((~~Such~~)) The specifications shall be in writing and shall be filed with the clerk of the county legislative authority for public inspection, and an advertisement thereof stating the date after which bids will not be received, the character of the work to be done, or material, equipment, or service to be purchased, and that specifications therefor may be seen at the office of the clerk of the county legislative authority, shall be published in the county official newspaper((~~: PROVIDED, That~~)). Advertisements for public works contracts for construction, alteration, repair, or improvement of public facilities shall be additionally published in a legal newspaper of general circulation in or as near as possible to that part of the county in which ((~~such~~)) the work is to be done((~~: AND PROVIDED FURTHER, That~~)). If the county official newspaper is a newspaper of general circulation covering at least forty percent of the residences in that part of the county in which ((~~such~~)) the public works are to be done, publication of an advertisement of the applicable specifications in the county official newspaper only shall be sufficient. ((~~Such~~)) The advertisements shall be published at least once in each week for two consecutive weeks prior to the last date upon which bids will be received and as many additional publications as shall be determined by the county legislative authority. The bids shall be in writing, shall be filed with the clerk, shall be opened and read in public at a meeting of the county legislative authority on the date named therefor in said advertisements, and after being opened, shall be filed for public inspection. No bid ((~~shall~~)) may be considered for public work unless it is accompanied by a bid deposit in the form of a surety bond, postal money order, cash, cashier's check, or certified check in an amount equal to five percent of the amount of the bid proposed. The contract for the public work, lease, or purchase shall be awarded to the lowest responsible bidder((;)), taking into consideration the quality of the articles or equipment to be purchased or leased. Any or all bids may be rejected for good cause. The county legislative authority shall require from the successful bidder for ((~~such~~)) the public work a contractor's bond in the amount and with the conditions imposed by law. ((~~Should~~)) If the bidder to whom the contract is awarded fails to enter into the contract and furnish the contractor's bond as required within ten days after notice of the award, exclusive of the day of notice, the amount of the bid deposit shall be forfeited to the county and the contract awarded to the next lowest and best bidder. The bid deposit of all unsuccessful bidders shall be returned after the contract is awarded and the required contractor's bond given by the successful bidder is accepted by the county legislative authority. In the letting of any contract, lease, or purchase involving less than three thousand five hundred dollars, advertisement and competitive bidding may be dispensed with on order of the county legislative authority. Notice of intention to let contracts or to enter into lease agreements involving amounts exceeding one thousand dollars but less than three thousand five hundred dollars((,)) shall be posted by the county legislative authority on a bulletin board in its office not less than three days prior to making such lease or contract. For advertisement and competitive bidding to be dispensed with as to purchases between one thousand and three thousand five hundred dollars, the county legislative authority must authorize by resolution a county procedure for securing telephone ((~~and/or~~)) or written quotations, or both, from enough vendors to assure establishment of a competitive price and for awarding such contracts for purchase of materials, equipment, or services to the lowest responsible bidder. Immediately after the award is made, the bid quotations obtained shall be recorded and open to public inspection and shall be available by telephone inquiry. Wherever possible, supplies shall be purchased in quantities for a period of at least three months, and not to exceed one year. Supplies generally used throughout the various departments shall be standardized insofar as possible, and may be purchased and stored for general use by all of the various departments which shall be charged for the supplies when withdrawn from the purchasing department.

(2) The county legislative authority's determination of the lowest responsible bidder shall be based upon the following elements, all of which shall be given equal consideration:

(a) The ability, capacity, and skill of the bidder to perform the contract;

(b) The character, integrity, reputation, judgment, experience, and efficiency of the bidder;

(d) The quality of performance of previous contracts;

(e) The previous and existing compliance by the bidder with laws relating to the contract;

(f) Adherence to the bid specifications;

(g) Financial capability;

(h) The bidded price;

(i) Such other information as may be viewed having a bearing on the decision to award the contract.

(3) The contract shall be awarded to the lowest responsible Washington bidder if the bid is not more than five percent higher than that of the lowest responsible nonresident bidder.

(4) For purposes of this section, a Washington bidder is a bidder who:

(a) Holds a certificate of registration by the state department of labor and industries;

(b) Submits a bid under the name as appearing on the certificate of registration;

(c) Has maintained a place of business within the state for a period of six months immediately preceding the date of the bid.

NEW SECTION. Sec. 3. A new section is added to chapter 47.28 RCW to read as follows:

The department may, at its option, terminate a contract awarded to the lowest responsible bidder based upon the following:

(1) The bidder's false or misleading answer to the standard form of questionnaire and financial statement required by RCW 47.28.070;

(2) The bidder's failure to comply with the applicable federal or state prevailing wage rates;

(3) The bidder's material failure to perform the contract or any previous contracts with any public agency in Washington; or

(4) The bidder's demonstrated inability, incapacity, or lack of skill to perform or complete the contract within the time specified in the contract.

The department's determination to terminate the contract must be in accordance with, and is subject to appeal under, the state Administrative Procedure Act, chapter 34.04 RCW.

NEW SECTION. Sec. 4. If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected.