AGC Challenges Proposed \Responsible Bidder\ Ordinance

(Editor’s note: Have you come across questionable responsible bidder criteria in bid notices? If so contact Van Collins AGC Legislative Counsel 360-352-5000.)

Two years ago the Legislature passed “responsible bidder” legislation that gives public agencies the option of using supplemental criteria applicable to the project. Since passage of the bill language has appeared in some local agencies’ bid notices that contractors believe goes too far.

AGC and its members address unfair supplemental criteria as they show up in bid notices. Recently though Snohomish County is considering taking a step toward cementing anti-competition bidder criteria not in just bid notices but in a county ordinance.

In a letter to Snohomish County Executive Aaron Reardon outlining problems with the proposal AGC Executive Vice President David D’Hondt detailed elements of the proposal that are either unfeasible contrary to state law or very costly.

For example the proposal would require general contractors to require all subcontractors with work in excess of $100K to supply evidence of fully-executed performance and payment bonds. The proposal is vague though with regard to the question of who is the intended “obligee” of the subs’ required bonds. But assuming the County is the intended obligee AGC does not believe the County has the requisite authority to modify surety law regarding subcontractor bonds. Even if one assumes that the County has the authority to require subcontractor bonds state law requires the general contractor to provide bonds to cover the entire amount of the construction contract. Thus subcontractor bonds mandated in this manner would be both redundant and wasteful.

Another section of the proposal mandates that “The bidder shall not have a documented pattern of prevailing wage complaints filed against them within five years of the bid submittal date that demonstrates a pattern of failing to pay workers prevailing wages as determined by the awarding authority.”

One of AGC’s many concerns about this item is the use of the term “complaint” and not violations that have been adjudicated as final. This is unconstitutional – no determination of responsibility can be made by the County on hearsay or without procedural and substantive due process. In addition it is ambiguous: What is a “documented pattern?”

This provision is also contrary to state law which says a firm is barred from bidding on public works projects only when it has been determined by final adjudicative order to have “participated in a violation of the requirement to pay the prevailing rate of wage for a second time within a five-year period”. State law is not “one strike and you are out”.

At press time AGC had not yet received a response from the County Executive regarding the proposal. AGC will continue to oppose it and remind members to be on the lookout for inappropriate responsible bidder criteria. Please pass such examples to Van Collins AGC Legislative Counsel 360-352-5000.