Design-build projects/bonds

AN ACT Relating to modifying bonding requirements in the design 1
portion of design-build public works projects; and amending RCW 2
39.10.330 and 39.08.030. 3
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:4
Sec. 1. RCW 39.10.330 and 2023 c 395 s 9 are each amended to 5
read as follows: 6
(1) Contracts for design-build services shall be awarded through 7
a competitive process using public solicitation of proposals for 8
design-build services. At a minimum, the public body shall publish at 9
least once in a legal newspaper of general circulation published in, 10
or as near as possible to, that part of the county in which the 11
public work will be done, a notice of its request for qualifications 12
from proposers for design-build services, and the availability and 13
location of the request for proposal documents. The public body is 14
encouraged to post the design-build opportunity in additional areas, 15
such as websites for business associations or the office of minority 16
and women's business enterprises, to further publicize the 17
opportunity for qualified design-build teams. The request for 18
qualifications documents shall include: 19
(a) A description of the project including the estimated design-20
build contract value and the intended use of the project;21
H-1335.2
HOUSE BILL 1967
State of Washington 69th Legislature 2025 Regular Session
By Representatives Zahn, Griffey, and Nance
Read first time 02/13/25. Referred to Committee on Capital Budget.
p. 1 HB 1967
(b) The reasons for using the design-build procedure;1
(c) A description of the qualifications to be required of the 2
proposer; 3
(d) A description of the process the public body will use to 4
evaluate qualifications and finalists' proposals, including 5
evaluation factors and the relative weight of factors and any 6
specific forms to be used by the proposers; 7
(i) Evaluation factors for qualifications shall include technical 8
qualifications, such as specialized experience and technical 9
competence of the firms and the key design and construction 10
personnel; capacity to perform; the proposer's past performance in 11
utilization of business entities certified with the office of 12
minority and women's business enterprises, including small businesses 13
and business entities certified with the department of veterans 14
affairs, to the extent permitted by law; ability to provide a 15
performance and payment bond for the project; and other appropriate 16
factors. Cost or price-related factors are not permitted in the 17
request for qualifications phase; 18
(ii) Evaluation factors for finalists' proposals shall include 19
the management plan to meet time and budget requirements and one or 20
more price-related factors. Evaluation factors must include a 21
proposer's inclusion plan for business entities certified with the 22
office of minority and women's business enterprises, including small 23
businesses and business entities certified with the department of 24
veterans affairs as subconsultants, subcontractors, and suppliers for 25
the project, to the extent permitted by law. Evaluation factors may 26
also include, but not be limited to, the technical approach or the 27
design concept; 28
(e) Protest procedures including time limits for filing a 29
protest, which in no event may limit the time to file a protest to 30
fewer than four business days from the date the proposer was notified 31
of the selection decision; 32
(f) The proposed contract; 33
(g) The honorarium to be paid to finalists submitting responsive 34
proposals and who are not awarded a design-build contract;35
(h) The schedule for the procurement process and the project; and36
(i) Other information relevant to the project.37
(2) The public body shall establish an evaluation committee to 38
evaluate the responses to the request for qualifications based solely 39
on the factors, weighting, and process identified in the request for 40
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qualifications and any addenda issued by the public body. Based on 1
the evaluation committee's findings, the public body shall select not 2
more than five responsive and responsible finalists to submit 3
proposals. The public body may, in its sole discretion, reject all 4
proposals and shall provide its reasons for rejection in writing to 5
all proposers. 6
(3) The public body must notify all proposers of the finalists 7
selected to move to the next phase of the selection process. The 8
process may not proceed to the next phase until two business days 9
after all proposers are notified of the committee's selection 10
decision. At the request of a proposer not selected as a finalist, 11
the public body must provide the requesting proposer with a scoring 12
summary of the evaluation factors for its proposal. Proposers filing 13
a protest on the selection of the finalists must file the protest in 14
accordance with the published protest procedures. The selection 15
process may not advance to the next phase of selection until two 16
business days after the final protest decision is transmitted to the 17
protestor. 18
(4) Upon selection of the finalists, the public body shall issue 19
a request for proposals to the finalists. The request for proposal 20
documents shall include: 21
(a) Any specific forms to be used by the finalists; and22
(b) Submission of a summary of the finalist's accident prevention 23
program and an overview of its implementation. 24
(5) The public body shall establish an evaluation committee to 25
evaluate the proposals submitted by the finalists. The finalists' 26
proposals shall be evaluated and scored based solely on the factors, 27
weighting, and process identified in the request for qualifications, 28
the request for proposals, and in any addenda published by the public 29
body. Public bodies may request best and final proposals from 30
finalists. The public body may initiate negotiations with the 31
finalist submitting the highest scored proposal. If the public body 32
is unable to execute a contract with the finalist submitting the 33
highest scored proposal, negotiations with that finalist may be 34
suspended or terminated and the public body may proceed to negotiate 35
with the next highest scored finalist. Public bodies shall continue 36
in accordance with this procedure until a contract agreement is 37
reached or the selection process is terminated. 38
(6) The public body shall notify all finalists of the selection 39
decision and make a selection summary of the final proposals 40
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available to all proposers within two business days of such 1
notification. If the public body receives a timely written protest 2
from a finalist firm, the public body may not execute a contract 3
until two business days after the final protest decision is 4
transmitted to the protestor. The protestor must submit its protest 5
in accordance with the published protest procedures.6
(7) The firm awarded the contract shall provide a performance and 7
payment bond for the contracted amount before the start of 8
construction and no later than 10 days upon request from the public 9
body. A performance and payment bond is not required for the portion 10
of the design-build contract that includes design services, 11
preconstruction services, finance services, maintenance services, 12
operations services, or any other related services included in the 13
contract. 14
(8) Any contract must require the firm awarded the contract to 15
track and report to the public body and to the office of minority and 16
women's business enterprises its utilization of the office of 17
minority and women's business enterprises certified businesses and 18
veteran certified businesses. 19
(9) The public body shall provide appropriate honorarium payments 20
to finalists submitting responsive proposals that are not awarded a 21
design-build contract. Honorarium payments shall be sufficient to 22
generate meaningful competition among potential proposers on design-23
build projects. In determining the amount of the honorarium, the 24
public body shall recognize the level of effort required to meet the 25
selection criteria. 26
Sec. 2. RCW 39.08.030 and 2018 c 89 s 1 are each amended to read 27
as follows: 28
(1)(a) The bond mentioned in RCW 39.08.010 must be in an amount 29
equal to the full contract price agreed to be paid for such work or 30
improvement, except under subsection (2) of this section, and must be 31
to the state of Washington, except as otherwise provided in RCW 32
39.08.100, and except in cases of cities, towns, public 33
transportation benefit areas, passenger-only ferry service districts, 34
and water-sewer districts, in which cases such municipalities may by 35
general ordinance or resolution fix and determine the amount of such 36
bond and to whom such bond runs. However, the same may not be for a 37
less amount than ((twenty-five)) 25 percent of the contract price of 38
any such improvement for cities, towns, public transportation benefit 39
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areas, and passenger-only ferry service districts, and not less than 1
the full contract price of any such improvement for water-sewer 2
districts, and may designate that the same must be payable to such 3
city, town, water-sewer district, public transportation benefit area, 4
or passenger-only ferry service district, and not to the state of 5
Washington, and all such persons mentioned in RCW 39.08.010 have a 6
right of action in his, her, or their own name or names on such bond 7
for work done by such laborers or mechanics, and for materials 8
furnished or provisions and goods supplied and furnished in the 9
prosecution of such work, or the making of such improvements, and the 10
state has a right of action for the collection of taxes, increases, 11
and penalties specified in RCW 39.08.010: PROVIDED, That, except for 12
the state with respect to claims for taxes, increases, and penalties 13
specified in RCW 39.08.010, such persons do not have any right of 14
action on such bond for any sum whatever, unless within ((thirty)) 30 15
days from and after the completion of the contract with an acceptance 16
of the work by the affirmative action of the board, council, 17
commission, trustees, officer, or body acting for the state, county 18
or municipality, or other public body, city, town or district, the 19
laborer, mechanic or subcontractor, or material supplier, or person 20
claiming to have supplied materials, provisions or goods for the 21
prosecution of such work, or the making of such improvement, must 22
present to and file with such board, council, commission, trustees or 23
body acting for the state, county or municipality, or other public 24
body, city, town or district, a notice in writing in substance as 25
follows: 26
27
28
To (here insert the name of the state, county or
municipality or other public body, city, town or district):
29
30
31
32
33
34
35
36
37
38
Notice is hereby given that the undersigned (here
insert the name of the laborer, mechanic or subcontractor,
or material supplier, or person claiming to have furnished
labor, materials or provisions for or upon such contract or
work) has a claim in the sum of . . . . . . dollars (here
insert the amount) against the bond taken from . . . . . .
(here insert the name of the principal and surety or
sureties upon such bond) for the work of . . . . . . (here
insert a brief mention or description of the work
concerning which said bond was taken).
39 (here to be signed) . . . . . . . . . . . . .
p. 5 HB 1967
(b) Such notice must be signed by the person or corporation 1
making the claim or giving the notice, and the notice, after being 2
presented and filed, is a public record open to inspection by any 3
person, and in any suit or action brought against such surety or 4
sureties by any such person or corporation to recover for any of the 5
items specified in this section, the claimant is entitled to recover 6
in addition to all other costs, attorneys' fees in such sum as the 7
court adjudges reasonable. However, attorneys' fees are not allowed 8
in any suit or action brought or instituted before the expiration of 9
thirty days following the date of filing of the notice as provided in 10
this section. However, any city may avail itself of the provisions of 11
RCW 39.08.010 ((through)), 39.08.015, and 39.08.030, notwithstanding 12
any charter provisions in conflict with this section. Moreover, any 13
city or town may impose any other or further conditions and 14
obligations in such bond as may be deemed necessary for its proper 15
protection in the fulfillment of the terms of the contract secured 16
thereby, and not in conflict with this section. The ((thirty)) 30-day 17
notice requirement under this subsection does not apply to claims 18
made by the state for taxes, increases, and penalties specified in 19
RCW 39.08.010. 20
(2) Under the job order contracting procedure described in RCW 21
39.10.420, bonds will be in an amount not less than the dollar value 22
of all open work orders. Under the design-build procedure described 23
in RCW 39.10.330, bonds will be in an amount not less than the dollar 24
value of the contracted amount of the construction portion of the 25
contract. A performance and payment bond is not required for the 26
portion of the design-build contract that includes design services, 27
preconstruction services, finance services, maintenance services, 28
operations services, or any other related services included in the 29
contract.30
(3) Where retainage is not withheld pursuant to RCW 31
60.28.011(1)(b), upon final acceptance of the public works project, 32
the state, county, municipality, or other public body must within 33
thirty days notify the department of revenue, the employment security 34
department, and the department of labor and industries of the 35
completion of contracts over ((thirty-five thousand dollars )) 36
$35,000. 37
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