Problematic Off-Site/Prefab Law Could Catch Unwary Contractors

Unwary contractors could be deemed “non-responsible” and barred from all public works contracting for repeated violations of a new law regarding the purchase of “off-site prefabricated non-standard project specific items” from out-of-state vendors or manufacturers.

Over the past three legislative sessions AGC strongly opposed off-site prefab legislation promoted by organized labor. Unfortunately in the 2010 session a version passed. This now means that AGC’s emphasis regarding the bill EHB 2805 has had to turn to issues of implementation and enforcement.

However there are significant issues with that implementation and enforcement. The bill was poorly drafted and as a result numerous ambiguities and legal concerns remain within it. It is therefore up to the Department of Labor & Industries to make sense of the bill from here forward.

AGC is aggressively pursuing answers to these issues and recently submitted a series of detailed questions to the Department with the goal of inducing the Department to issue clear guidance regarding its implementation strategy and coming enforcement procedures. AGC is concerned that the Department may overextend its legal authority and use enforcement mechanisms that are actually not available to it. As of this date the questions remain unanswered but AGC will continue to strongly push the Department to implement and communicate clear and reasonable reporting requirements by public works contractors and subcontractors.

Similarly AGC is also in contact with the Department of General Administration which is tasked under the bill to draft standard contract language that will contractually implement the bill on all public works projects over $1 million.

The fact that time is of the essence in this matter is also being brought to the attention of these State agencies since the legislation’s requirements become effective on any subject project where the prime contract is entered into on or after September 1 2010. This means that projects scheduled to be advertised shortly could easily be affected.

There will be much more to come with regards to EHB 2805. Stay tuned. If you have any questions regarding the bill in the mean time you may contact Van Collins AGC Legislative Counsel at vcollins@agcwa.com or 360-352-5000.