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MRSC Inquiries

Public Works

    Public Works - Contract Administration


    1. Should sales tax be included in the calculation of retainage for a public works project?
      No. RCW 60.28.010 provides that there shall be reserved by the public body a percentage from the "moneys earned" by the contractor on the project. "Moneys earned" on the contract do not include sales tax. Therefore, the city should retain only the statutory percentage of the contract price and not any percentage of sales tax.

    2. Should sales tax be included in the calculation of retainage for a public works project?
      No. RCW 60.28.010 provides that there shall be reserved by the public body a percentage from the "moneys earned" by the contractor on the project. "Moneys earned" on the contract do not include sales tax. Therefore, the city should retain only the statutory percentage of the contract price and not any percentage of sales tax.

    3. What is the procedure for extending the contract completion time?
      A change order should be prepared and processed to extend the completion time of a public works project. The time extension, whether it involves additional monies or not, is a change to the basic contract and should be processed as a change order.

    Public Works - Performance Bond


    1. Is a performance bond required when a city or county is undertaking a public works project in an emergency situation where it is exempt from competitive bidding requirements?
      Unless it is an extreme emergency that falls under the provisions of chapter 38.52 RCW, a performance bond is probably still required. The requirement of a performance bond in RCW 39.08.010 is separate from the competitive bidding requirements in RCW 35.23.352 or 35.22.620. The exemption from competitive bidding requirements in RCW 39.04.280(1)(e) in the event of an emergency does not address performance bonds. However, for "extreme emergencies", RCW 38.52.070(2) provides authority for local governments to take action without regard to competitive bidding requirements or "provisions pertaining to the performance of public work", which would probably include any requirement of a performance bond. Nevertheless, as a practical matter, even if a situation does not rise to the level of an emergency situation addressed by chapter 38.52 RCW, there may be a need for such immediate action that a city or county would find it prudent to forgo the requirement of a performance bond, if procuring it would cause a delay that would result in further damage or costs that the city or county would not wish to incur. The ultimate consequence of failing to require a performance bond is potential liability for the contractor&s debts with respect to the project (e.g., payments to workers and suppliers). RCW 39.08.015.A local government may be willing to incur that risk rather than delay a project in the event of an emergency. So, it would appear that common sense and an assessment of relative risks should govern the decision in an emergency situation, other than an "extreme emergency", whether or not to require a performance bond.

    Public Works - Prevailing Wages


    1. Must prevailing wages be paid on a contract with a private party for landscaping services?
      The case of Spokane v. Department of Labor and Industries, 100 Wn. App. 805 (2000), held that:

        All public works, including maintenance when performed by contract shall comply with the provisions of the prevailing wage law.

      The court interpreted the term maintenance in that sentence to include "ordinary maintenance." So, landscaping services, which are considered to be ordinary maintenance, are subject to prevailing wage if performed by private contract. If the work is done by the city work crew, then prevailing wage need not be paid.

      Such work is also subject to the bid law if it is going to be performed by contract with a private party and the amount exceeds the bid law limits. However, if ordinary maintenance is performed by the city work crew, then there is no bid law that applies. That is, the city work crew can perform ordinary maintenance in any amount so long as the work does constitute ordinary maintenance.

    2. Is a local government required to pay increased labor costs if, after a public works project is completed, it is discovered that the prevailing wage rates that were paid and that were contained in the bid specifications were amended by L&I prior to the bid opening?
      The wage rates in effect on the date when bids are due apply, except if there is a delay of more than six months between the bid due date and the awarding of the contract. These rates remain in effect for the duration of the contract.

    Public Works - Standard Specifications


    1. What are the "Standard Specifications for Road, Bridge, and Municipal Construction"?
      Prior to 1984, The Washington State Department of Transportation (WSDOT) published a set of standard specifications that governed their construction contracts AND any roadway construction by local agencies using state or federal funds. The Washington State Chapter of the American Public Works Association (APWA) published a separate set of standard specifications for municipal public works construction from the early 1970s to 1981, whose use by local agencies was not required, but became fairly universal. In 1984, the two publications were combined into one document, titled "Standard Specifications for Road, Bridge and Municipal Construction" (2,183 Kb) with insertion of a separate "Division 1-99" to adapt contract administration procedures more closely to local agency preferences and practices.

      APWA and WSDOT have standing committees that meet jointly and regularly to propose and adopt modifications to all sections of the Standard Specifications (SS). A new version of the SS is published in written form every two years, but interim changes are always available for incorporation into an agencies contract documents via a GSP (general special provision).

    2. Have the Standards been adopted or promulgated by the DOT or the Legislature, or any other body having rule making authority?
      Several state regulations require use of the SS for local projects funded by state agencies, including WSDOT and TIB. The Secretary of Transportation and the Director of Highways and Local Programs issue formal letters adopting each revision of the SS and establishing its date of applicability to ongoing state and local projects using state funds.

      There is no requirement, however, that the SS be used for projects whose funding is entirely local.

    3. May a local jurisdiction modify the standards?
      Yes. On projects where there is state funding allowable modifications are limited and all proposed modifications must be approved by the state or possibly the federal funding agency. For locally funded projects, the agencies can modify the SS as they see fit. Most agencies (Tacoma, Auburn, for example) adopt the SS as a base and use general and special provisions to modify them. Some agencies, mostly larger, have stand alone SS.