WSR 00-11-134

PROPOSED RULES

DEPARTMENT OF TRANSPORTATION


[ Filed May 23, 2000, 11:19 a.m. ]

Original Notice.

Preproposal statement of inquiry was filed as WSR 00-07-026.

Title of Rule: Prequalification of contractors.

Purpose: Revisions to bring language in WAC 468-16-080, 468-16-100, and 468-16-150 into sync with RCW 47.28.030 as revised July 1999. Other minor revisions to clarify language.

Statutory Authority for Adoption: RCW 47.01.101, 47.28.030, 47.28.070.

Statute Being Implemented: RCW 47.28.070.

Summary: Revises existing rule to allow the use of a limited prequalification process and waiver of bid bonds and contract bonds when the department's estimate does not exceed $80,000, effective July 1, 2005, the limit will rise to $100,000.

Reasons Supporting Proposal: Revisions are necessary to bring the limits established by the WAC into compliance with the limits established by RCW 47.28.030 as amended in July 1999.

Name of Agency Personnel Responsible for Drafting: Ken Walker, 1D21 Transportation Building, (360) 705-7017; Implementation and Enforcement: John F. Conrad, 1C2 Transportation Building, (360) 705-7801.

Name of Proponent: Washington State Department of Transportation, governmental.

Rule is not necessitated by federal law, federal or state court decision.

Explanation of Rule, its Purpose, and Anticipated Effects: The proposed changes are required to bring the limits defined in the WAC into agreement with the limits in RCW 47.28.030 as amended in July 1999. Other minor revisions clarify titles. Chapter 468-16 WAC implements RCW 47.28.070 relating to prequalification of contractors for Washington state highway construction. The purpose of the rule is to assure that highway construction projects are awarded to competent and responsible contractors. The rule establishes an objective process for determining a contractor's qualifications for bidding on department work. It further provides for the enhancement of the contractor's bidding capacity through higher standards of performance.

Proposal Changes the Following Existing Rules: It raises the limits for using the limited prequalification procedures and waiver of bid and contract bonds to the higher limits established in RCW 47.28.030 as amended July 1999.

No small business economic impact statement has been prepared under chapter 19.85 RCW. A small business economic impact statement is not required. The cost of prequalification under the proposed rule change would impose no greater cost.

RCW 34.05.328 does not apply to this rule adoption.

Hearing Location: Commission Boardroom 1D2, Transportation Building, 310 Maple Park Drive, Olympia, WA 98504-7360, on June 30, 2000, at 8:30 a.m.

Assistance for Persons with Disabilities: Contact TDD (800) 833-6388, by June 26, 2000.

Submit Written Comments to: Ken Walker, Manager Contract Ad and Award Office, P.O. Box 47360, Olympia, WA 98504-7360, fax (360) 705-6810, by June 26, 2000.

Date of Intended Adoption: June 30, 2000.

May 23, 2000

Gerald E. Smith

Deputy Secretary, Operations

OTS-4082.1


AMENDATORY SECTION(Amending Order 168, filed 4/15/97, effective 5/16/97)

WAC 468-16-080
Qualification procedures for projects under ((fifty)) eighty thousand dollars and effective July 1, 2005, one hundred thousand dollars.

(1) Contractors may be qualified by region administrators for projects valued under ((fifty)) eighty thousand dollars and effective July 1, 2005, one hundred thousand dollars. Submission of a limited prequalification questionnaire (DOT form 272-063) to the region administrator or designee is required, except when the contractor is currently prequalified with the department of transportation under the provisions of chapter 468-16 WAC.

(2) Procedures for letting region level projects valued under ((fifty)) eighty thousand dollars and effective July 1, 2005, one hundred thousand dollars are published in Department Directives.

(((3) A limited prequalification questionnaire and other requirements are prescribed in WAC 468-14-040.))

[Statutory Authority: RCW 47.01.101, 47.28.030 and 47.28.070. 97-09-045 (Order 168), 468-16-080, filed 4/15/97, effective 5/16/97; 91-04-014 (Order 128), 468-16-080, filed 1/28/91, effective 2/28/91.]


AMENDATORY SECTION(Amending Order 168, filed 4/15/97, effective 5/16/97)

WAC 468-16-100
Conditional qualification.

(1) A firm may be conditionally qualified when it has been given a below standard (less than 100) performance rating on a final performance report. A firm may also be qualified conditionally by the secretary when performance has become below standard in either "quality of work" or "progress of work" on an interim report for a current project. The region administrator or designated assistant may, under the foregoing condition, request in writing that a contractor be placed in conditional status. A conditionally qualified contractor will be denied bidding proposals while in that status but may receive, at the discretion of the secretary, a bidding proposal for one project.

(2) The assistant secretary for field operations support shall advise the contractor and the region administrator or designated assistant when a contractor has been placed in conditional status.

(3) Should the contractor be the low successful bidder and be awarded a contract subsequent to being placed in conditional status, the issuance of further bidding proposals will be considered only when an interim report is submitted in accordance with WAC 468-16-160 or when a final performance report is submitted in accordance with WAC 468-16-150(12) and the rating thereon is standard or better.

(4) Normally a contractor may have only one active prime contract for the department while qualified conditionally.

(5) Return to fully qualified status of a conditionally qualified contractor will be effected by:

(a) A performance rating of standard or above on contracts completed during the current prequalification year; or

(b) An interim rating of standard or above on all concurrent contracts; or

(c) A standard or above rating on the first interim report for a project awarded subsequent to conditional qualification.

(6) Should the rating continue to be less than standard, the contractor's prequalification will be suspended in accordance with WAC 468-16-180.

[Statutory Authority: RCW 47.01.101, 47.28.030 and 47.28.070. 97-09-045 (Order 168), 468-16-100, filed 4/15/97, effective 5/16/97; 93-03-020 (Order 134), 468-16-100, filed 1/12/93, effective 2/12/93; 91-04-014 (Order 128), 468-16-100, filed 1/28/91, effective 2/28/91.]


AMENDATORY SECTION(Amending Order 168, filed 4/15/97, effective 5/16/97)

WAC 468-16-150
Prime contractor performance reports.

(1) Performance reports described in this section, substantially in the format as that appearing at WAC 468-16-210, will be completed for prime contractors only for projects valued at one hundred thousand dollars or more. Each prime contractor's performance report will be classified as to the primary work class being rated. This shall be stated in Section I of the report by listing the major classes of work performed by the contractor e.g., clearing, grading, surfacing, etc.

(2) Performance will be rated under the following headings: Administration, management, and supervision; quality of work; progress of work; and equipment.

(3) The following adjectival ratings are established for performance reports:

(a) Superior 131-150
(b) Above standard 101-130
(c) Standard 100
(d) Below standard 70-99
(e) Inadequate 50-69
(4) The performance report shall be used in evaluating a contractor's prequalification status.

(5) The report shall contain a narrative section which verbally provides the details substantiating the numerical rating. The narrative section shall be based upon documentation prepared during the life of the project, such as the project engineer's diary, the inspector's daily report and other pertinent documents. This documentation shall constitute the major portion of the administrative record to be used for any hearings or litigation that may arise from the rating process.

(6) The performance report will be prepared and discussion held with the contractor by the project engineer. The report will include a numerical rating substantiated by a narrative report which describes the contractor's typical performance. The narrative will reference such documents as will substantiate the given numerical rating.

(7) The report will be endorsed by the region operations engineer or designated assistant who will provide a copy to the contractor.

(8) The contractor may appeal the rating to the region administrator in writing within twenty calendar days of the date the report is received by the contractor. If the report is not delivered to the contractor in person, it shall be forwarded by certified mail with a return receipt requested. The appeal must set forth the specific basis upon which it has been made.

(9) The region administrator or designated assistant will review all contractor performance reports after they have been endorsed and may modify the numerical or narrative rating if such is deemed appropriate. The contractor will be advised of any changes made. The region administrator will be required to make comments thereon only when the contractor's overall performance rating has been rated inadequate, below standard, or superior.

(10) Performance reports, when completed at region level, will be submitted to the secretary, Attn: Manager, contractor prequalification office, not later than forty-five calendar days following final completion of the project.

(11) The region administrator or designated assistant shall review the appeal and provide a written response to the contractor by certified mail (return receipt requested) within twenty calendar days of its receipt. A copy of the appeal and the response thereto will be forwarded to the secretary, Attn: Contractor prequalification office.

(12) The contractor may further appeal to the secretary in writing setting forth the specific basis for the appeal. The contractor's appeal shall be made within ten calendar days of the date of receipt of the region administrator's response. When making an appeal, the contractor may also present information in person. The secretary will consider the appeal and respond to it by certified mail within sixty calendar days of its receipt. This determination shall be the final administrative act of the department.

(13) All prime contractor performance reports shall be reviewed by the office of the secretary for completeness, objectivity, and substantiation of numerical ratings. The secretary may modify the report as deemed appropriate as a result of the review. The rated contractor and region administrator shall be given a copy of the modified report. The contractor may appeal the modified report in the manner and within the time allotted in subsection (12) of this section to which the secretary shall respond as cited therein.

(14) A prime contractor performance report shall be considered a preliminary paper until all reviews and appeals have been accomplished and it shall have been stamped and initialed as having been "filed in the office of the secretary."

(15) DOT Form 421-010 is authorized.

[Statutory Authority: RCW 47.01.101, 47.28.030 and 47.28.070. 97-09-045 (Order 168), 468-16-150, filed 4/15/97, effective 5/16/97; 94-05-004, 468-16-150, filed 2/2/94, effective 3/5/94; 93-03-020 (Order 134), 468-16-150, filed 1/12/93, effective 2/12/93; 91-04-014 (Order 128), 468-16-150, filed 1/28/91, effective 2/28/91.]

Washington State Code Reviser's Office