Bidding and Awarding a Public Works Contract – MRSC

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This page provides a general overview of the public works bidding and award procedures for local governments in Washington State, including responsive bids, notices of award, and bid protests.
It is part of MRSC’s series on Public Works Contracts.
RCW 39.04.010 requires local agencies to award public works contracts to a responsible bidder with the lowest responsive bid. This applies to informal bidding, such as a small works roster, as well as formal competitive bids.
Agencies may not negotiate with any of the bidders. Some submissions may involve errors, omissions, or other irregularities, and agencies must decide how to handle them.
Responsive bids are bids that are submitted on time with all of the information the agency requested. Agencies should identify in the bid documents an official bidding clock located in the room where the bids will be opened. This clock should be checked on a bid opening day to verify its accuracy.
Bids submitted after the submittal deadline or at the wrong location should be rejected as non-responsive – in other words, agencies should neither accept nor open late bids. If a contractor claims extenuating circumstances, refer them to your agency’s attorney.
Typically, bidders must provide the following information at the time of bidding:
While it is possible to do a brief check when the bids are first opened, the agency must reserve the right to ascertain full compliance with the bid proposal requirements after a more detailed review.
Additional items may be required shortly after bid opening:
Responsible bidders, as defined in RCW 39.04.010 and 39.04.350, must meet a number of mandatory criteria. The bidder must:
The certification that the bidder has not violated labor laws in the last three years is the only criteria that may be satisfied by a sworn statement. All other criteria must be verified by the agency, except for the ESD number which cannot be verified online and must be provided by the bidder. However, public agencies may ask bidders to submit a Bidder Information sheet to help verify these criteria.
State agencies provide several resources to verify the status of a contractor:
Also see the Mandatory Bidder Responsibility Checklist, originally developed by Mike Purdy for CPARB and updated in 2021 by MRSC, which can be used to document whether a bidder meets the mandatory responsible bidder criteria.
In addition, RCW 39.04.350(2) allows agencies to adopt additional relevant responsible bidder criteria for individual projects. The Capital Projects Advisory Review Board (CPARB) has developed Suggested Guidelines for Bidder Responsibility to help local and state agencies in developing these supplemental criteria. To view the most recent version, see CPARB's Background and Reference page and click on "Bidder Responsibility Guidelines."
Many local agencies have developed supplemental criteria on two levels:
These supplemental criteria and associated evaluation methods must be provided in the invitation to bid or bidding documents.
RCW 39.06.020 requires a public works contractor to verify responsibility criteria for each first tier subcontractor, and a subcontractor of any tier that hires other subcontractors must verify responsibility criteria for each of its subcontractors. Verification is to include that, at the time of subcontract execution, each subcontractor meets the responsibility criteria listed above and in RCW 39.04.350(1) and additionally – if applicable – possesses an electrical contractor license or an elevator contractor license.
This verification requirement, as well as the responsibility criteria, must be included in every public works contract and subcontract of every tier. However, agencies are not required to independently verify subcontractor responsibility or keep subcontractor records.
After all the bids are opened, the agency should identify the apparent low bidder for the record, but note that agency staff will review the bids submittals for completeness and numerical accuracy. Once this review is completed, generally within a maximum of 30-45 days, agency staff will recommend award of the contract to a responsible bidder with the lowest responsive bid. The agency must allow adequate time for bidders to submit written bid protests, as described below, before awarding the contract.
Upon approval by the agency’s governing body or designated staff person, a Notice of Award is sent to the contractor, which requires them to submit the following, typically within 10 or 20 business days after the date of the Notice:
After the contract is signed by the agency’s designated representative, the agency will issue a Notice to Proceed, usually transmitting the signed contract and stating the official time of completion of the contract based on the contract documents. Many agencies also remind the contractor that prior to any payment under the contract, the contractor must provide an approved statement of intent to pay prevailing wages from the contractor and any subcontractors that work in any given pay period.
Effective July 28, 2019, code cities, second class cities, and towns may award projects to the second-lowest responsible bidder if both of the following conditions are met (see RCW 35.23.352, referenced by RCW 35A.40.200 for code cities):
Any city/town that awards a contract to the second-lowest responsible bidder under those criteria must make an annual report to the state Department of Commerce including the total number of bids awarded to certified minority or women contractors and describing how notice was provided to potential certified minority or women contractors.
Agencies should anticipate bid protests and have procedures in place for handling them. For all competitively bid projects, a new provision effective July 28, 2019 requires the agency, within two business days of the bid opening, to provide copies of the bids it received if requested by a bidder (RCW 39.04.105).
The agency may not award the contract during this two-day window, and if bid copies are requested by a bidder, the agency must wait at least two full business days after providing copies before awarding the contract. (A “business day” does not include intermediate Saturdays, Sundays, or legal holidays.)
If a written protest is submitted within (a) two full business days following the bid opening, or (b) two full business days following when the municipality provided copies of the bids to those bidders requesting them, the agency may not execute a contract for the project with anyone other than the protesting bidder without first providing at least two full business days’ written notice of its intent to execute a contract for the project.
Practice Tip: To implement the statutory bid protest requirement, an agency may wish to consider a policy similar to this:
Every agency must require proof of insurance coverage from all contractors and subcontractors via endorsements naming the agency as additional insured on those policies for all projects, regardless of dollar size. Each agency should review potential risks for each project with its risk manager and/or insurance carrier.
If your agency does not have standard insurance requirements, you may use Section 1-07.18 (APWA Supplement) of the Standard Specifications for Road, Bridge, and Municipal Construction. There are several other APWA GSPs regarding insurance that an agency may want to consider using depending on the size and complexity of the project.
For sample documents related to public works bidding and award, see the following. However, note that these may not reflect the new bidder responsibility criteria and requirements that took effect between 2017 and 2019, as described above. We are in the process of seeking more recent documents that comply with the new legislation.
For more sample documents regarding purchasing and contracting, see MRSC's Sample Document Library.
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