Design-build is increasingly showing up in public works projects in the Washington State. This method allows the price to be established based on a conceptual design rather than through the competitive bid process. Offsetting the lack of competitive bid, the price can be set after construction documents are completed and all the subcontracts work can be put out for bid. Design-build has unique challenges. It leads to fundamental changes in the relationships between owners, designers and contractors. As a result, concerns were expressed that public agencies may not understand the resulting changes in their responsibilities or the impacts to contractors and design professionals so the legislature put strict limits on what capital project qualified for use of this method.
Now, the 2019 Washington legislature has agreed to expand the use of design/build (“DB”) and job-order contracting by public entities. It goes from sticking a toe in the water to jumping in the deep end on this construction delivery method.
In a bill supported by the Associated General Contractors, SHB 1295 was developed by the Capital Projects Advisory Review Board (CPARB) after a years-long process involving various stakeholders and assessing the effectiveness of this project delivery method. It removed the previous limitation to projects of between two and ten million and now allows design build contracts for any cost over two million. Previously, only parking garages were given the green light regardless of cost. RCW 39.10.300.
Public bodies must submit contract documents that require the design/builder to submit plans for inclusion of underutilized firms as specialty contractors and suppliers. The evaluation factors for potential contractors must include past performance utilization of OMWBE-certified businesses and the ability of the contractor to provide a performance and payment bond. This provides incentive for the DB contractor to use minority subcontractors, similar to competitive bid process.
Bonding requirements for specialty contractors are limited and apprenticeship utilization is required for any work order over $350,000 with over 600 hours in a single trade.
Also, the bill allows job order contracting (JOC) to be available to any public entity. Request for proposal evaluation factors will include past performance on approved subcontractor inclusion plans.
Finally, the bill provides some public disclosure exemptions related to financial information and design build process.
The popular bill passed both houses with almost no opposition and has now been signed into law by the governor of Washington.
