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House Bill 2469 — Small Works Rosters (Washington, 2020)

Summary

House Bill 2469, State of Washington, 66th Legislature, 2020 Regular Session, by Representatives Santos, Gregerson, Tharinger, Hudgins, and Pollet, read the first time January 14, 2020 and referred to the Committee on Innovation, Technology & Economic Development. The act relates to small works rosters. It amends RCW 39.19.020, 39.19.060, 39.19.080, 39.19.090, 39.19.200, 39.19.250, and 39.04.155, adds a new section to chapter 39.19 RCW, and repeals RCW 39.19.100 and 39.19.110. Section 1 revises the definitions, including a new definition of contractor. Section 9 repeals RCW 39.19.100 and RCW 39.19.110, both titled enforcement by attorney general.

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Full text

     H-3768.1

                                HOUSE BILL 2469


     State of Washington        66th Legislature         2020 Regular Session

     By Representatives Santos, Gregerson, Tharinger, Hudgins, and Pollet

     Read first time 01/14/20.      Referred   to   Committee   on   Innovation,
     Technology & Economic Development.




 1       AN ACT Relating to small works rosters; amending RCW 39.19.020,
 2   39.19.060, 39.19.080, 39.19.090, 39.19.200, 39.19.250, and 39.04.155;
 3   adding a new section to chapter 39.19 RCW; and repealing RCW
 4   39.19.100 and 39.19.110.


 5   BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:


 6       Sec. 1.   RCW 39.19.020 and 2019 c 434 s 2 are each amended to
 7   read as follows:
 8       The definitions in this section apply throughout this chapter
 9   unless the context clearly requires otherwise.
10       (1) "Advisory committee" means the advisory committee on minority
11   and women's business enterprises.
12       (2) "Broker" means a person that provides a bona fide service,
13   such as professional, technical, consultant, brokerage, or managerial
14   services and assistance in the procurement of essential personnel,
15   facilities,   equipment,   materials,   or   supplies  required   for
16   performance of a contract.
17       (3) "Debar" means to prohibit a contractor, individual, or other
18   entity from submitting a bid, having a bid considered, or entering
19   into a state contract during a specified period of time as set forth
20   in a debarment order.


                                      p. 1                               HB 2469
 1       (4) "Contractor" means an individual or entity granted state
 2   certification and awarded either a direct contract with an agency or
 3   an indirect contract as a subcontractor to perform a service or
 4   provide goods.
 5       (((4))) (5) "Director" means the director of the office of
 6   minority and women's business enterprises.
 7       (((5)))   (6)   "Educational   institutions"  means   the   state
 8   universities, the regional universities, The Evergreen State College,
 9   and the community colleges.
10       (((6))) (7) "Goals" means annual overall agency goals, expressed
11   as a percentage of dollar volume, for participation by minority and
12   women-owned and controlled businesses and shall not be construed as a
13   minimum goal for any particular contract or for any particular
14   geographical area. It is the intent of this chapter that such overall
15   agency goals shall be achievable and shall be met on a contract-by-
16   contract or class-of-contract basis.
17       (((7))) (8) "Goods and/or services" includes professional
18   services and all other goods and services.
19       (((8))) (9) "Office" means the office of minority and women's
20   business enterprises.
21       (((9)))   (10)  "Person"   includes   one   or   more  individuals,
22   partnerships,      associations,      organizations,      corporations,
23   cooperatives, legal representatives, trustees and receivers, or any
24   group of persons.
25       (((10))) (11) "Procurement" means the purchase, lease, or rental
26   of any goods or services.
27       (((11))) (12) "Public works" means all work, construction,
28   highway and ferry construction, alteration, repair, or improvement
29   other than ordinary maintenance, which a state agency or educational
30   institution is authorized or required by law to undertake.
31       (((12))) (13) "State agency" includes the state of Washington and
32   all agencies, departments, offices, divisions, boards, commissions,
33   and correctional and other types of institutions.


34       Sec. 2.   RCW 39.19.060 and 2019 c 434 s 3 are each amended to
35   read as follows:
36       (1) Each state agency and educational institution shall comply
37   with the annual goals established for that agency or institution
38   under this chapter for public works and procuring goods or services.
39   This chapter applies to all public works and procurement by state
                                      p. 2                          HB 2469
 1   agencies and educational institutions, including all contracts and
 2   other procurement under chapters 28B.10, 39.04, 39.26, 43.19, and
 3   47.28 RCW.
 4       (2) Each state agency shall adopt a plan, developed in
 5   consultation with the director and the advisory committee, to ensure
 6   that minority and women-owned businesses are afforded the maximum
 7   practicable opportunity to directly and meaningfully participate in
 8   the execution of public contracts for public works and goods and
 9   services. The plan shall include specific measures the agency will
10   undertake to increase the participation of certified minority and
11   women-owned businesses.
12       (3) Of all state agencies and educational institutions, the
13   office must annually identify those: (a) In the lowest quintile of
14   utilization of minority and women-owned contractors as a percentage
15   of all contracts issued by the agency; (b) in the lowest quintile of
16   the dollar value awarded to minority and women-owned contractors as a
17   percentage of the dollar value of all contracts issued by the agency;
18   and (c) that are performing significantly below their established
19   goals, as determined by the office. The office must meet with each
20   identified agency to review its plan and identify available tools and
21   actions for increasing participation.
22       (4) The office shall annually notify the governor, the state
23   auditor, and the joint legislative audit and review committee of all
24   agencies and educational institutions not in compliance with this
25   chapter.


26       Sec. 3.   RCW 39.19.080 and 1987 c 328 s 5 are each amended to
27   read as follows:
28       (((1))) A person, firm, corporation, business, union, or other
29   organization shall not:
30       (((a))) (1) Prevent or interfere with a contractor's or
31   subcontractor's compliance with this chapter, or any rule adopted
32   under this chapter;
33       (((b))) (2) Submit false or fraudulent information to the state
34   concerning compliance with this chapter or any such rule;
35       (((c))) (3) Fraudulently obtain, retain, attempt to obtain or
36   retain, or aid another in fraudulently obtaining or retaining or
37   attempting to obtain or retain certification as a minority or women's
38   business enterprise for the purpose of this chapter;


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 1       (((d))) (4) Knowingly make a false statement, whether by
 2   affidavit, verified statement, report, or other representation, to a
 3   state official or employee for the purpose of influencing the
 4   certification or denial of certification of any entity as a minority
 5   or women's business enterprise;
 6       (((e))) (5) Knowingly obstruct, impede, or attempt to obstruct or
 7   impede any state official or employee who is investigating the
 8   qualification of a business entity that has requested certification
 9   as a minority or women's business enterprise;
10       (((f))) (6) Fraudulently obtain, attempt to obtain, or aid
11   another person in fraudulently obtaining or attempting to obtain
12   public moneys to which the person is not entitled under this chapter;
13   or
14       (((g))) (7) Knowingly make false statements that any entity is or
15   is not certified as a minority or women's business enterprise for
16   purposes of obtaining a contract governed by this chapter.
17       (((2) Any person or entity violating this chapter or any rule
18   adopted under this chapter shall be subject to the penalties in RCW
19   39.19.090. Nothing in this section prevents the state agency or
20   educational institution from pursuing such procedures or sanctions as
21   are otherwise provided by statute, rule, or contract provision.))


22       Sec. 4.   RCW 39.19.090 and 1987 c 328 s 6 are each amended to
23   read as follows:
24       ((If)) (1)(a) Except as provided in (b) of this subsection, if a
25   person, firm, corporation, or business does not comply with any
26   provision of this chapter or with a contract requirement established
27   under this chapter, the state may ((withhold payment, debar the
28   contractor, suspend, or terminate the contract and subject)) impose
29   one or more of the following penalties: Withholding payment,
30   decertifying the contractor, debarring the contractor, suspending or
31   terminating the contract, or subjecting the contractor to civil
32   penalties of up to ten percent of the amount of the contract or up to
33   five thousand dollars for each violation. ((The office shall adopt,
34   by rule, criteria for the imposition of penalties under this section.
35   Wilful))
36       (b) If a person, firm, corporation, or business commits any of
37   the activities prohibited in RCW 39.19.080, the state must impose one
38   or more of the following penalties: Withholding payment, decertifying
39   the contractor, debarring the contractor for a period between one and
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 1   three years, terminating the contract, or subjecting the contractor
 2   to civil penalties of between two and ten percent of the amount of
 3   the contract or between one and five thousand dollars for each
 4   violation.
 5       (c) In addition to any other penalties imposed, willful repeated
 6   violations, exceeding a single violation, ((may)) must disqualify the
 7   contractor from further participation in state contracts for a period
 8   of ((up to)) three years. A willful violation includes a conscious or
 9   deliberate   false   statement,    misrepresentation,   omission,  or
10   concealment of a material fact, with the specific intent of
11   obtaining, continuing, or increasing benefits under this chapter.
12       (2) An apparent low-bidder must be in compliance with the
13   contract provisions required under this chapter as a condition
14   precedent to the granting of a notice of award by any state agency or
15   educational institution.
16       (3) The office shall follow administrative procedures under
17   chapter 34.05 RCW in determining a violation and imposing penalties
18   under this chapter. The office shall adopt by rule criteria for the
19   imposition of penalties under this section. The rule may incorporate
20   the debarment process authorized for the department of enterprise
21   services in RCW 39.26.200.
22       (4)(a) An audit and review unit is established within the office
23   for the purpose of detecting and investigating fraud and violations
24   of this chapter. The office must employ qualified personnel for the
25   unit.
26       (b) For the purpose of any investigation or proceeding under this
27   chapter, the director or the director's designee may administer oaths
28   and affirmations, subpoena witnesses, compel their attendance, take
29   evidence, and require the production of any books, papers,
30   correspondence, memoranda, agreements, or other documents or records
31   that the director or the director's designee deems relevant or
32   material to the inquiry.
33       (c) Subpoenas issued under this section may be enforced under RCW
34   34.05.588.
35       (d) The audit and review unit must annually:
36       (i) Conduct a site review of a minimum of three percent of
37   persons, firms, corporations, or businesses awarded a contract under
38   this chapter;
39       (ii) Submit a response for all complaints for investigation made
40   by an external agency to the agency submitting the complaint;
                                     p. 5                          HB 2469
 1       (iii) Develop and implement a process for prioritizing and
 2   conducting thorough investigations of persons, firms, corporations,
 3   or businesses identified by an external complaint and determined to
 4   be the highest priority for the agency; and
 5       (iv) Develop and implement a process for prioritizing and
 6   conducting thorough investigations of persons, firms, corporations,
 7   or businesses internally identified and determined to be the highest
 8   priority for the agency.
 9       (5) The procedures and sanctions in this section are not
10   exclusive; nothing in this section prevents the state agency or
11   educational institution administering the contracts from pursuing
12   such procedures or sanctions as are otherwise provided by statute,
13   rule, or contract provision.


14       NEW SECTION.   Sec. 5.   A new section is added to chapter 39.19
15   RCW to read as follows:
16       (1) The director or director's designee may apply for and obtain
17   a superior court order approving and authorizing a subpoena in
18   advance of its issuance. The application may be made in the county
19   where the subpoenaed person resides or is found, or the county where
20   the subpoenaed documents, records, or evidence are located, or in
21   Thurston county. The application must:
22       (a) State that an order is sought under this section;
23       (b) Adequately specify the documents, records, evidence, or
24   testimony; and
25       (c) Include a declaration made under oath that an investigation
26   is being conducted for a lawfully authorized purpose related to an
27   investigation within the office's authority and that the subpoenaed
28   documents, records, evidence, or testimony are reasonably related to
29   an investigation within the office's authority.
30       (2) When an application under this section is made to the
31   satisfaction of the court, the court must issue an order approving
32   the subpoena. An order under this subsection constitutes authority of
33   law for the agency to subpoena the documents, records, evidence, or
34   testimony.
35       (3) The director or director's designee may seek approval and a
36   court may issue an order under this section without prior notice to
37   any person, including the person to whom the subpoena is directed and
38   the person who is the subject of an investigation. An application for


                                     p. 6                          HB 2469
 1   court approval is subject to the fee and process set forth in RCW
 2   36.18.012(3).


 3       Sec. 6.    RCW 39.19.200 and 1993 c 195 s 1 are each amended to
 4   read as follows:
 5       The minority and women's business enterprises account is created
 6   in the custody of the state treasurer. All receipts from RCW
 7   39.19.210, 39.19.220, and 39.19.230 and civil penalties imposed under
 8   RCW 39.19.090 shall be deposited in the account. Expenditures from
 9   the account may be used only for the purposes defraying all or part
10   of the costs of the office in administering this chapter. Only the
11   director or the director's designee may authorize expenditures from
12   the account. Moneys in the account may be spent only after
13   appropriation.


14       Sec. 7.   RCW 39.19.250 and 2019 c 434 s 4 are each amended to
15   read as follows:
16       (1) For the purpose of annual reporting on progress required by
17   ((section 1 of this act)) this chapter, each state agency and
18   educational institution shall submit data to the office and the
19   office of minority and women's business enterprises on the
20   participation by qualified minority and women-owned and controlled
21   businesses in the agency's or institution's contracts and other
22   related information requested by the director. The director of the
23   office of minority and women's business enterprises shall determine
24   the content and format of the data and the reporting schedule, which
25   must be at least annually.
26       (2) The office must develop and maintain a list of contact people
27   at each state agency and educational institution who are able to
28   present to hearings of the appropriate committees of the legislature
29   its progress in carrying out the purposes of chapter 39.19 RCW.
30       (3) The office must submit a report aggregating the data received
31   from each state agency and educational institution, and the
32   information identified and actions taken under RCW 39.19.060(3) and
33   39.19.090(4), to the legislature and the governor.


34       Sec. 8.   RCW 39.04.155 and 2019 c 434 s 5 are each amended to
35   read as follows:
36       (1) This section provides uniform small works roster provisions
37   to   award   contracts   for  construction,  building,  renovation,
                                     p. 7                          HB 2469
 1   remodeling, alteration, repair, or improvement of real property that
 2   may be used by state agencies and by any local government that is
 3   expressly authorized to use these provisions. These provisions may be
 4   used in lieu of other procedures to award contracts for such work
 5   with an estimated cost of ((three)) five hundred ((fifty)) thousand
 6   dollars or less. The small works roster process includes the limited
 7   public works process authorized under subsection (3) of this section
 8   and any local government authorized to award contracts using the
 9   small works roster process under this section may award contracts
10   using the limited public works process under subsection (3) of this
11   section.
12       (2)(a) A state agency or authorized local government may create a
13   single general small works roster, or may create a small works roster
14   for different specialties or categories of anticipated work. Where
15   applicable, small works rosters may make distinctions between
16   contractors based upon different geographic areas served by the
17   contractor. The small works roster or rosters shall consist of all
18   responsible contractors who have requested to be on the list, and
19   where required by law are properly licensed or registered to perform
20   such work in this state. A state agency or local government
21   establishing a small works roster or rosters may require eligible
22   contractors desiring to be placed on a roster or rosters to keep
23   current   records    of    any    applicable   licenses,    certifications,
24   registrations, bonding, insurance, or other appropriate matters on
25   file with the state agency or local government as a condition of
26   being placed on a roster or rosters. At least once a year, the state
27   agency or local government shall publish in a newspaper of general
28   circulation within the jurisdiction a notice of the existence of the
29   roster or rosters and solicit the names of contractors for such
30   roster or rosters. In addition, responsible contractors shall be
31   added to an appropriate roster or rosters at any time they submit a
32   written request and necessary records. Master contracts may be
33   required to be signed that become effective when a specific award is
34   made using a small works roster.
35       (b) A state agency establishing a small works roster or rosters
36   shall adopt rules implementing this subsection. A local government
37   establishing a small works roster or rosters shall adopt an ordinance
38   or resolution implementing this subsection. Procedures included in
39   rules   adopted   by    the    department   of   enterprise   services   in
40   implementing this subsection must be included in any rules providing
                                        p. 8                            HB 2469
 1   for a small works roster or rosters that is adopted by another state
 2   agency, if the authority for that state agency to engage in these
 3   activities has been delegated to it by the department of enterprise
 4   services under chapter 43.19 RCW. An interlocal contract or agreement
 5   between two or more state agencies or local governments establishing
 6   a small works roster or rosters to be used by the parties to the
 7   agreement or contract must clearly identify the lead entity that is
 8   responsible for implementing the provisions of this subsection.
 9       (c) Procedures shall be established for securing telephone,
10   written, or electronic quotations from contractors on the appropriate
11   small works roster to assure that a competitive price is established
12   and to award contracts to the lowest responsible bidder, as defined
13   in RCW 39.04.010. Invitations for quotations shall include an
14   estimate of the scope and nature of the work to be performed as well
15   as materials and equipment to be furnished. However, detailed plans
16   and specifications need not be included in the invitation. This
17   subsection does not eliminate other requirements for architectural or
18   engineering approvals as to quality and compliance with building
19   codes. Quotations may be invited from all appropriate contractors on
20   the appropriate small works roster. As an alternative, quotations may
21   be invited from at least five contractors on the appropriate small
22   works roster who have indicated the capability of performing the kind
23   of work being contracted, in a manner that will equitably distribute
24   the opportunity among the contractors on the appropriate roster.
25   However, if the estimated cost of the work is from ((two)) one
26   hundred fifty thousand dollars to ((three)) five hundred ((fifty))
27   thousand dollars, a state agency or local government that chooses to
28   solicit bids from less than all the appropriate contractors on the
29   appropriate small works roster must also notify the remaining
30   contractors on the appropriate small works roster that quotations on
31   the work are being sought. The government has the sole option of
32   determining whether this notice to the remaining contractors is made
33   by: (i) Publishing notice in a legal newspaper in general circulation
34   in the area where the work is to be done; (ii) mailing a notice to
35   these contractors; or (iii) sending a notice to these contractors by
36   facsimile or other electronic means. For purposes of this subsection
37   (2)(c), "equitably distribute" means that a state agency or local
38   government soliciting bids may not favor certain contractors on the
39   appropriate small works roster over other contractors on the
40   appropriate small works roster who perform similar services.
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 1       (d) A contract awarded from a small works roster under this
 2   section need not be advertised.
 3       (e) Immediately after an award is made, the bid quotations
 4   obtained shall be recorded, open to public inspection, and available
 5   by at least one of the following: Telephone or electronic request.
 6       (f) For projects awarded under the small works roster process
 7   established under this subsection, a state agency or authorized local
 8   government   may    waive   the   retainage   requirements    of   RCW
 9   60.28.011(1)(a), thereby assuming the liability for contractor's
10   nonpayment    of:    (i)    Laborers,    mechanics,    subcontractors,
11   materialpersons, and suppliers; and (ii) taxes, increases, and
12   penalties under Titles 50, 51, and 82 RCW that may be due from the
13   contractor for the project. However, the state agency or local
14   government has the right of recovery against the contractor for any
15   payments made on the contractor's behalf. Recovery of unpaid wages
16   and benefits are the first priority for actions filed against the
17   contract.
18       (3)(a) In lieu of awarding contracts under subsection (2) of this
19   section, a state agency or authorized local government may award a
20   contract for work, construction, alteration, repair, or improvement
21   projects estimated to cost less than one hundred fifty thousand
22   dollars using the limited public works process provided under this
23   subsection. Public works projects awarded under this subsection are
24   exempt from the other requirements of the small works roster process
25   provided under subsection (2) of this section and are exempt from the
26   requirement that contracts be awarded after advertisement as provided
27   under RCW 39.04.010.
28       (b) For limited public works projects, a state agency or
29   authorized local government shall solicit electronic or written
30   quotations from a minimum of three contractors from the appropriate
31   small works roster and shall award the contract to the lowest
32   responsible bidder as defined under RCW 39.04.010. After an award is
33   made, the quotations shall be open to public inspection and available
34   by electronic request. A state agency or authorized local government
35   must equitably distribute opportunities for limited public works
36   projects among contractors willing to perform in the geographic area
37   of the work. A state agency or authorized local government shall
38   maintain a list of the contractors contacted and the contracts
39   awarded during the previous twenty-four months under the limited
40   public works process, including the name of the contractor, the
                                     p. 10                         HB 2469
 1   contractor's registration number, the amount of the contract, a brief
 2   description of the type of work performed, and the date the contract
 3   was awarded. For limited public works projects, a state agency or
 4   authorized local government may waive the payment and performance
 5   bond requirements of chapter 39.08 RCW and may waive the retainage
 6   requirements of RCW 60.28.011(1)(a), thereby assuming the liability
 7   for   the    contractor's   nonpayment    of   laborers,    mechanics,
 8   subcontractors, materialpersons, suppliers, and taxes, increases, and
 9   penalties imposed under Titles 50, 51, and 82 RCW that may be due
10   from the contractor for the limited public works project, however the
11   state agency or authorized local government shall have the right of
12   recovery against the contractor for any payments made on the
13   contractor's behalf.
14       (4) The breaking of any project into units or accomplishing any
15   projects by phases is prohibited if it is done for the purpose of
16   avoiding the maximum dollar amount of a contract that may be let
17   using the small works roster process or limited public works process.
18       (5) A state agency or authorized local government may use the
19   limited public works process in this section to solicit and award
20   small works roster contracts to minibusinesses and microbusinesses as
21   defined under RCW 39.26.010 that are registered contractors.
22       (6) The definitions in this subsection apply throughout this
23   section unless the context clearly requires otherwise.
24       (a) "Equitably distribute opportunities" means that a state
25   agency or authorized local government may not favor certain
26   contractors on the appropriate small works roster over other
27   contractors on the same roster who perform similar services.
28       (b) "State agency" means the department of enterprise services,
29   the state parks and recreation commission, the department of natural
30   resources, the department of fish and wildlife, the department of
31   transportation, any institution of higher education as defined under
32   RCW 28B.10.016, and any other state agency delegated authority by the
33   department of enterprise services to engage in construction,
34   building, renovation, remodeling, alteration, improvement, or repair
35   activities.


36       NEW SECTION.   Sec. 9.   The following acts or parts of acts are
37   each repealed:
38       (1) RCW 39.19.100 (Enforcement   by   attorney   general—Injunctive
39   relief) and 1987 c 328 s 12; and
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1       (2) RCW 39.19.110 (Enforcement by attorney general—Investigative
2   powers) and 1987 c 328 s 13.

                                --- END ---




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