Purchasing and Bidding: Small Public Works Roster

Small Public Works Roster

Small Public Works Roster

The following units of local government may use a small works roster as an alternative to competitive bid procedures when the contract amount for a public works project is $200,000 or less:

counties, cities, towns, community and technical colleges, county roads, fire protection districts, higher education, housing authorities, port districts, public hospital districts, public utility districts, school districts and water-sewer districts.

A table outlining the legislative history of the small works process in Washington is attached. A small works roster (SWR) lists contractors who have requested placement on the roster and who are properly licensed or registered to perform work in this state. RCW 39.04.155, as amended by Chapter 138, Laws of 2000 and Chapter 284, Laws of 2001, outlines procedures to be followed:

The municipality must first pass a resolution or ordinance authorizing use of the SWR process and establishing procedures for the award of public works contracts using the SWR process for contracts up to200,000 and limited public work process up to $35,000. See the Model Small Works Roster Resolution and Model Vendor List and Small Works Roster Resolution.
The municipality need not comply with formal sealed bidding procedures for the construction, building, renovation, remodeling, alteration, repair, or improvement of real property where the estimated cost does not exceed $200,000, which includes the costs of labor, material, equipment and sales and/or tax, as applicable. Instead, the agency may use the small works roster and limited public works (less than $35,000) procedures for public works projects. However, breaking of any project into units or accomplishing any projects by phases is prohibited, if it is done for the purpose of avoiding the maximum dollar amount of a contract that may be let using the small works roster process
An agency may create a single general small works roster, or may create a small works roster for different specialties or categories of anticipated work. Small works rosters may make distinctions between contractors based upon different geographic areas served by the contractor.
Small works roster(s) shall consist of all responsible contractors who have requested to be on the roster(s), and - where required by law - are properly licensed or registered to perform such work in this state. Contractors desiring to be placed on a roster or rosters must keep current records of any applicable licenses, certifications, registrations, bonding, insurance, or other appropriate matters on file with the agency as a condition of being placed on a roster or rosters.
At least once a year, the municipality shall publish in a newspaper of general circulation within the jurisdiction a notice of the existence of the roster or rosters and solicit the names of contractors for such roster or rosters. Responsible contractors shall be added to an appropriate roster or rosters at any time that they submit a written request and necessary records. The agency may require master contracts to be signed that become effective when a specific award is made using a small works roster.
Several agencies may agree to use the same small works roster. However, an interlocal contract or agreement among local governments establishing a small works roster or rosters must clearly identify the lead entity that is responsible for implementing the small works roster provisions.
A municipality must obtain telephone, written or electronic quotations for public works contracts from contractors on the appropriate small works roster to assure that a competitive price is established and to award contracts to the lowest responsible bidder, as defined in RCW 43.19.1911(9), as follows: "(9) In determining "lowest responsible bidder", in addition to price, the following elements shall be given consideration:
- (a) The ability, capacity, and skill of the bidder to perform the contract or provide the service required;
- (b) The character, integrity, reputation, judgment, experience, and efficiency of the bidder;
- (c) Whether the bidder can perform the contract within the time specified;
- (d) The quality of performance of previous contracts or services;
- (e) The previous and existing compliance by the bidder with laws relating to the contract or services;
- (f) Such other information as may be secured having a bearing on the decision to award the contract: PROVIDED, That in considering bids for purchase, manufacture, or lease, and in determining the "lowest responsible bidder," whenever there is reason to believe that applying the "life cycle costing" technique to bid evaluation would result in lowest total cost to the state, first consideration shall be given by state purchasing activities to the bid with the lowest life cycle cost which complies with specifications. "Life cycle cost" means the total cost of an item to the state over its estimated useful life, including costs of selection, acquisition, operation, maintenance, and where applicable, disposal, as far as these costs can reasonably be determined, minus the salvage value at the end of its estimated useful life. The "estimated useful life" of an item means the estimated time from the date of acquisition to the date of replacement or disposal, determined in any reasonable manner. Nothing in this section shall prohibit any state agency, department, board, commission, committee, or other state-level entity from allowing for preferential purchase of products made from recycled materials or products that may be recycled or reused."
A contract awarded from a small works roster need not be advertised. Invitations for quotations shall include an estimate of the scope and nature of the work to be performed as well as materials and equipment to be furnished. However, detailed plans and specifications need not be included in the invitation. This paragraph does not eliminate other requirements for architectural or engineering approvals as to quality and compliance with building codes.
Quotations may be invited from all appropriate contractors on the appropriate small works roster. As an alternative, quotations may be invited from at least five contractors on the appropriate small works roster who have indicated the capability of performing the kind of work being contracted, in a manner that will equitably distribute the opportunity among the contractors on the appropriate roster.
"Equitably distribute" means that the agency may not favor certain contractors on the appropriate small works roster over other contractors on the appropriate small works roster who perform similar services. In the interest of fairness, agency representatives should not inform any contractor of the terms or amount of any other contractor's bid for the same project until after all quotes have been received and opened.
If the estimated cost of the work is from one hundred thousand dollars to two hundred thousand dollars, a municipality [except for port districts] that chooses to solicit bids from less than all the appropriate contractors on the appropriate small works roster must also notify the remaining contractors on the appropriate small works roster that quotations on the work are being sought. The agency has the sole option of determining whether this notice to the remaining contractors is made by:
(i) Publishing notice in a legal newspaper in general circulation in the area where the work is to be done; (ii) mailing a notice to these contractors; or
(iii) sending a notice to these contractors by facsimile or other electronic means.
A written record shall be made by agency representatives of each contractor's bid on the project and of any conditions imposed on the bid. Immediately after an award is made, the bid quotations obtained shall be recorded, open to public inspection, and available by telephone inquiry.
All of the telephone bids or quotations should be collected and presented at the same time to the municipality for consideration, determination of the lowest responsible bidder, and award of the contract. The governing body may delegate authority to award bids of certain amount(s) to an officer of the agency. Most often, there is a requirement that the municipality shall ratify the officer's approval at the next scheduled governing body meeting.
The statutory requirement of 13 days advertising for a public works project in formal bid processes does not apply to a small works roster or limited public works process - advertising is not required. However, depending on the complexity of the project, we suggest that 7 to 14 days (or longer) should be allowed for contractors to submit a proposal so that they have adequate time to properly research the specifications.
Miscellaneous comments:
If a city or county contacts five firms on its small works roster, but receives less than five quotes, it is acceptable to award to the lowest of those quotes received.
Bid bonds should be required, as the low bidder may just refuse the work after the bids of the other contractors are known, or fail to put reasonable effort into the bid preparation. Performance and payment bonds are required in any event
A small works roster does not eliminate the need for contract documents, performance bond, contract, specifications, retainage, etc.
As noted above, it is wise to allow contractors sufficient time to prepare their bids. A small works roster generally favors local firms since outside firms may not be aware that projects are being awarded through the small works roster process.

Small Public Works Contracts

Public works projects for which estimated costs, including applicable sales and use taxes, fall below established bid limits can be accomplished in the following ways, subject to individual agency purchasing policies:

by use of agency crews (day labor in county road fund statutes)
by use of day labor (force account)
by interlocal agreement with another agency
by contract with private contractor

Small public works contracts are disproportionately difficult to administer in relation to their costs. Large contractors, who routinely bid construction contracts and are familiar with the paperwork involved, do not like to do small projects. Many agencies find it hard to find smaller contractors who are familiar with prevailing wage requirements, retainage, sales and use tax issues, insurance certifications, bonding, etc. Project managers often find themselves cajoling contractors into bidding and then coaching them on proper procedures.

Another problem with small contracts is that of balancing paperwork and protection. Very few contractors have the time and energy to wade through a massive set of contract documents for a $2,500 remodeling project. On the other hand, a handshake or simple one page contract may not provide sufficient protection for an agency from third party claims, accidents or failure to pay prevailing wages and sales taxes.

Procedures for written quotes and subsequent contracts for small public works contracts vary considerably from agency to agency. Some use purchase orders for these contracts, with varying levels of approval authority based on the type and cost of the proposed purchase. Included in the Reference Documents are sample RFQs (requests for quotes), COs (change orders) and POs (purchase orders) that agencies have used.

Limited Public Works Process

RCW 39.04.155(3) [Chapter 284, Laws of 2001] allows authorized local governments to use a 'limited public works projects,' process for contracts with an estimated cost of less than $35,000. A local government may waive the payment and performance bond requirements of chapter 39.08 RCW and the retainage requirements of chapter 60.28 RCW. They assume liability for the contractor's nonpayment of laborers, mechanics, subcontractors, materialmen, suppliers, and taxes imposed under Title 82 RCW that may be due from the contractor. However the local government has the right of recovery against the contractor for any payments made on the contractor's behalf. To use this limited public works process an authorized local government must solicit electronic or written quotations from a minimum of three contractors from the appropriate small works roster and award the contract to the lowest responsible bidder as defined under RCW 43.19.1911. After an award is made, the quotations are to be open to public inspection and available by electronic request. The agency is to attempt to distribute opportunities for limited public works projects equitably among contractors willing to perform in the geographic area of the work. The local government must maintain a list of the contractors contacted and the contracts awarded during the previous twenty-four months under the limited public works process, including the name of the contractor, the contractor's registration number, the amount of the contract, a brief description of the type of work performed, and the date the contract was awarded.

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