HomeMy WebLinkAbout6156Page 1 of 8
Goods and Services Agreement
Rev. 06/2020
GOODS AND SERVICES AGREEMENT
THIS AGREEMENT, is entered into between the City of Bremerton, a Washington
Municipal Corporation ("City"), and Action Services Corporation ("Vendor"), whose mailing
address is: PO Box 4339 Bremerton, WA 98312.
The parties agree as follows:
I.VENDOR SERVICES. The Vendor shall provide the following goods and materials
and/or perform the following services for the City:
Potholing services in order to order to confirm elevations of utilities with our proposed improvements to avoid
conflicts and unnecessary additional costs during construction for the following projects and as outlined in Exhibit
A: Scope of Work
II.TIME OF COMPLETION. Vendor shall complete the work and provide all goods,
materials and services within 365 calendar days from the date all parties have signed this
Agreement.
III.COMPENSATION. The City shall pay the Vendor the total amount of $23,500, including
applicable Washington State Sales Tax, for the goods, materials and services contemplated in this
Agreement. The City shall pay the Vendor the following amounts according to the following
schedule:
See attached Exhibit A
A.Defective or Unauthorized Work. The City reserves its right to withhold payment
from Vendor for any defective or unauthorized goods, materials or services. If Vendor is unable,
for any reason, to complete any part of this Agreement, the City may obtain the goods, materials
or services on its own or from a third party, and Vendor shall be liable to the City for any additional
costs incurred by the City. "Additional costs" shall mean all reasonable costs, including legal costs
and attorney fees, incurred by the City beyond the maximum Agreement price specified above.
The City further reserves its right to deduct the cost to complete this Agreement, including any
Additional Costs, from any and all amounts due or to become due the Vendor.
IV.INDEPENDENT CONTRACTOR. Vendor is and shall be at all times acting as an
independent contractor and not as an employee of the City. The Vendor shall secure at its expense,
and shall be responsible for all payments of income tax, social security, state disability insurance
compensation, unemployment compensation, and all other payroll deductions for the Vendor,
officer, agents, employees and subcontractors. The Vendor shall also secure all applicable
business licenses, if required, in connection with the contract services, including all required
licenses for Vendor's officers, agents, employees and subcontractors.
V. TERMINATION. The City may terminate this Agreement for good cause. "Good cause"
shall include, without limitation, any one or more of the following events:
A.The Vendor's refusal or failure to supply a sufficient number of properly skilled
DocuSign Envelope ID: 35C6D5AA-4316-4BA6-9B01-F6B6AF816534
Page 2 of 8
Goods and Services Agreement
Rev. 06/2020
workers or proper materials for completion of this Agreement.
B.The Vendor's failure to complete this Agreement within the time specified in this
Agreement.
C.The Vendor's failure to make full and prompt payment to subcontractors or for
material or labor.
D.The Vendor's failure to comply with federal, state or local laws, rules or regulations.
E.The Vendor's filing for bankruptcy or becoming adjudged bankrupt.
If the City terminates this Agreement for good cause, the Vendor shall not receive any
further monies due under this Agreement until the goods, materials, and services required by this
Agreement are completed and fully performed by the City or a third party of the City’s choosing.
VI. CHANGES. The City may issue a written change order for any change in the goods,
materials or services to be provided during the performance of this Agreement. If the Vendor
determines, for any reason, that a change order is necessary, Vendor must submit a written change
order request to an authorized agent of the City within fourteen (14) calendar days of the date
Vendor knew or should have known of the facts and events giving rise to the requested change. If
the City determines that the change increases or decreases the Vendor's costs or time for
performance, the City will make an equitable adjustment. The City will attempt, in good faith, to
reach agreement with the Vendor on all equitable adjustments. However, if the parties are unable
to agree, the City will determine the equitable adjustment as it deems appropriate. The Vendor
shall proceed with the change order work upon receiving either a written change order from the
City or an oral order from the City before actually receiving the written change order. If the Vendor
fails to require a change order within the time allowed, the Vendor waives its right to make any
claim or submit subsequent change order requests for that portion of the contract work. If the
Vendor disagrees with the equitable adjustment the Vendor must complete the change order work;
however, the Vendor may elect to protest the adjustment as provided below:
A.Procedure and Protest by the Vendor. If the Vendor disagrees with anything
required by a change order, another written order, or an oral order from the City, including any
direction, instruction, interpretation, or determination by the City, the Vendor shall:
1.Immediately give a signed written notice of protest to the City;
2.Supplement the written protest within fourteen (14) calendar days with a
written statement that provides the following information:
a.The date of the Vendor's protest.
b.The nature and circumstances that caused the protest.
c.The provisions in this Agreement that support the protest.
d.The estimated dollar cost, if any, of the protested work and how that
estimate was determined.
e.An analysis of the progress schedule showing the schedule change
DocuSign Envelope ID: 35C6D5AA-4316-4BA6-9B01-F6B6AF816534
Page 3 of 8
Goods and Services Agreement
Rev. 06/2020
or disruption if the Vendor is asserting a schedule change or disruption.
3.The Vendor shall keep complete records of extra costs and time incurred as
a result of the protested work. The City shall have access to any of the Vendor's records needed
for evaluating the protest.
The City will evaluate all protests, provided the procedures in this section
are followed. If the City determines that a protest is valid, the City will adjust payment for work
or time by an equitable adjustment. No adjustment will be made for an invalid protest.
B.Vendor's Duty to Complete Protested Work. In spite of any protest, the Vendor
shall proceed promptly to provide the goods, materials and services required by the City under this
Agreement.
C.Vendor's Acceptance of Changes. The Vendor accepts all requirements of a change
order by: (1) endorsing it, (2) writing a separate acceptance, or (3) not protesting in the way this
section provides. A change order that is accepted by Vendor as provided in this section shall
constitute full payment and final settlement of all claims for contract time and for direct, indirect
and consequential costs, including costs of delays related to any work, either covered or affected
by the change.
D.Failure to Protest Constitutes Waiver. By not protesting as this section provides,
the Vendor also waives any additional entitlement and accepts from the City any written or oral
order (including directions, instructions, interpretations, and determination).
E.Failure to Follow Procedures Constitutes Waiver. By failing to follow the
procedures of this section, the Vendor completely waives any claims for protested work and
accepts from the City any written or oral order (including directions, instructions, interpretations,
and determination).
VII.CLAIMS. The Vendor shall give written notice to the City of all claims other than change
orders within fourteen (14) calendar days of the occurrence of the events giving rise to the claims.
Any claim for damages, additional payment for any reason, or extension of time, whether under
this Agreement or otherwise, shall be conclusively deemed to have been waived by the Vendor
unless a timely written claim is made in strict accordance with the applicable provisions of this
Agreement; or, if (and only if) no such provision is applicable, unless that claim is set forth in
detail in writing and received by the City within seven (7) calendar days from the date Vendor
knew, or should have known, of the facts giving rise to the claim. At a minimum, a Vendor's
written claim must include the information set forth regarding protests in Section VI(A)(2)(a)-(e).
FAILURE TO PROVIDE A COMPLETE, WRITTEN NOTIFICATION OF CLAIM
WITHIN THE TIME ALLOWED SHALL BE AN ABSOLUTE WAIVER OF ANY CLAIMS
ARISING IN ANY WAY FROM THE FACTS OR EVENTS SURROUNDING THAT CLAIM
OR CAUSED BY THAT DELAY.
DocuSign Envelope ID: 35C6D5AA-4316-4BA6-9B01-F6B6AF816534
Page 4 of 8
Goods and Services Agreement
Rev. 06/2020
Vendor must, in any event, file any claim or bring any suit arising from or connected with
this Agreement within 120 calendar days from the date the contract work is complete.
VIII.WARRANTY. The Vendor shall correct all defects in workmanship and materials within
one year from the date of the City's acceptance of the contract work. When defects are corrected,
the warranty for that portion of the work shall extend for one year from the date such correction is
completed and accepted by the City. The Vendor shall begin to correct any defects within seven
(7) calendar days of its receipt of notice from the City of the defect. If the Vendor does not
accomplish the corrections within a reasonable time, the City may complete the corrections and
the Vendor shall pay all costs incurred by the City in order to accomplish the correction.
IX. INDEMNIFICATION. Vendor shall defend, indemnify and hold the City, its officers,
officials, employees, agents and volunteers harmless from any and all claims, injuries, damages,
losses or suits, including all legal costs and attorney fees, arising out of or in connection with the
performance of this Agreement. Vendor’s obligation to indemnify shall not extend to that portion
of damages caused by the City’s sole negligence.
The City's inspection or acceptance of any of Vendor's work when completed shall not be
grounds to avoid any of these covenants of indemnification.
Should a court of competent jurisdiction determine that this Agreement is subject to RCW
4.24.115, then, in the event of liability for damages arising out of bodily injury to persons or
damages to property caused by or resulting from the concurrent negligence of the Vendor and the
City, its officers, officials, employees, agents and volunteers, the Vendor's liability hereunder shall
be only to the extent of the Vendor's negligence.
IT IS FURTHER SPECIFICALLY AND EXPRESSLY UNDERSTOOD THAT THIS
INDEMNIFICATION CONSTITUTES THE VENDOR'S WAIVER OF IMMUNITY
UNDER INDUSTRIAL INSURANCE, TITLE 51 RCW, SOLELY FOR THE PURPOSES OF
THIS INDEMNIFICATION. THE PARTIES ACKNOWLEDGE THAT THEY HAVE
MUTUALLY NEGOTIATED THIS WAIVER.
The provisions of this section shall survive the expiration or termination of this Agreement.
X. INSURANCE. The Vendor shall procure and maintain for the duration of this Agreement,
insurance against claims for injuries to persons or damage to property that may arise from or in
connection with the performance of the contract work by the Vendor, its agents, representatives,
employees or subcontractors.
Before beginning work on the project described in this Agreement, the Vendor shall
provide a Certificate of Insurance evidencing:
A.Automobile Liability insurance with limits no less than $1,000,000 combined
single limit per accident for bodily injury and property damage; and
B.Commercial General Liability insurance written on an occurrence basis with
DocuSign Envelope ID: 35C6D5AA-4316-4BA6-9B01-F6B6AF816534
Page 5 of 8
Goods and Services Agreement
Rev. 06/2020
limits no less than $1,000,000 combined single limit per occurrence and $2,000,000 aggregate for
personal injury, bodily injury and property damage. Coverage shall include but not be limited to:
blanket contractual; products/completed operations/broad form property damage; and employer's
liability.
C.Excess Liability insurance with limits not less than $1,000,000 limit per
occurrence and aggregate.
D.Workers Compensation insurance as statutorily required by the Industrial
Insurance Act of the State of Washington, Title 51, Revised Code of Washington and employer's
liability with limits not less than $1,000,000.
Any payment of deductible or self-insured retention shall be the sole responsibility of the
Vendor.
All required policies shall be provided on an “occurrence” basis except professional
liability insurance (if required), which shall be provided on a “claims-made” basis.
The City shall be named as an additional insured on the Commercial General Liability
insurance policy, as respects work performed by or on behalf of the Vendor and a copy of the
endorsement naming the City as additional insured shall be attached to the Certificate of Insurance.
The City reserves the right to receive a certified copy of all the required insurance policies.
The Vendor's Commercial General Liability insurance shall contain a clause stating that
coverage shall apply separately to each insured against whom claim is made or suit is brought,
except with respects to the limits of the insurer's liability.
The Vendor's insurance shall be primary and non-contributory insurance as respects the
City and shall contain a waiver of subrogation against the City for claims arising out of any
operations, liabilities and obligations to which coverage applies. It shall be an affirmative
obligation upon Vendor to advise the City’s Risk Manager by fax at (360) 473-5161, or by certified
mail, return receipt requested to City of Bremerton, Attn: Risk Management, 345 6th Street, Suite
100, Bremerton, WA 98337 within two days of the cancellation, suspension or substantive change
of any insurance policy required herein, and failure to do so shall be construed to be a breach of
this Agreement.
The City also reserves its unqualified right to require at any time and for any reason, proof
of coverage in the form of a duplicate of the insurance policy with all endorsements as evidence
of coverage.
XI. MISCELLANEOUS.
A.Licenses and Taxes. Vendor shall possess a current Bremerton Business License
and any regulatory license required to fulfill Vendor's obligations under this Agreement. B&O
taxes shall be paid when due, and Vendor, by this Agreement, assigns any payments due under
this Agreement to the City Clerk for payment of such taxes which have been declared delinquent.
DocuSign Envelope ID: 35C6D5AA-4316-4BA6-9B01-F6B6AF816534
Page 6 of 8
Goods and Services Agreement
Rev. 06/2020
B.Conflict and Precedence. In the event of a conflict between the contract documents,
the document which rates higher on the following list shall take precedence:
1. Amendments / Change Orders to Goods and Services Agreement
2. Goods and Services Agreement
3.Specifications
4. Terms and Conditions
5. Vendor’s Proposal
C.Documents Incorporated by Reference. The following documents are incorporated
by reference, including but not limited to:
1. Terms and Conditions,
2.Specifications,
3. Proposal, and
4.Non-Collusion Affidavit.
D.Use of Photographs and Images. Vendor shall not use or distribute photographs or
images depicting City officials, personnel, property, or equipment whether prepared by Vendor or
provided by City without prior written consent of the City. The City will not unreasonably
withhold its consent.
E.Equal Employment Opportunity Statement. In the hiring of employees for the
performance of work under this Agreement, the Vendor, its subcontractors, or any person acting
on behalf of Vendor shall not discriminate in any employment practice on the basis of age (40+),
sex, race, creed, color, national origin, sexual orientation/gender identity, marital status, military
status, or the presence of any physical, mental or sensory disability.
F.ADA Statement. The City of Bremerton does not discriminate on the basis of
disability in programs and activities, which it operates pursuant to the requirements of the
Americans with Disabilities Act of 1990, and ADA Amendments Act. This policy extends to both
employment and admission to participation in the programs, services and activities of the City of
Bremerton. Reasonable accommodation for employees or applicants for employment will be
provided.
G.Compliance with Laws. Vendor shall comply with all federal, state and local laws,
rules and regulations throughout every aspect in the performance of this Agreement.
H.Prevailing Wages. See attached e-mail correspondence.
I.Work Performed at Vendor's Risk. Vendor shall take all precautions necessary and
shall be responsible for the safety of its employees, agents, and subcontractors in the performance
of this Agreement. All work shall be done at Vendor's own risk, and Vendor shall be responsible
for any loss of or damage to materials, tools, or other articles used or held for use in connection
with the work.
J.Governing Law. This Agreement shall be governed and construed in accordance
DocuSign Envelope ID: 35C6D5AA-4316-4BA6-9B01-F6B6AF816534
Page 7 of 8
Goods and Services Agreement
Rev. 06/2020
with the laws of the State of Washington. If any dispute arises between the City and Vendor under
any of the provisions of this Agreement, resolution of that dispute shall be available exclusively
under the jurisdiction, venue and rules of the Kitsap County Superior Court, Kitsap County,
Washington.
K.Attorney's Fees. In any claim or lawsuit for damages arising from the parties'
performance of this Agreement, each party shall be responsible for payment of its own legal costs
and attorney's fees incurred in defending or bringing such claim or lawsuit; however, nothing in
this subsection shall limit the City's right to indemnification under Section IX of this Agreement.
L.Written Notice. All communications regarding this Agreement shall be sent to the
parties at the addresses listed below, unless otherwise notified. Any written notice shall become
effective upon delivery, but in any event three (3) calendar days after the date of mailing by
registered or certified mail, and shall be deemed sufficiently given if sent to the addressee at the
address stated in this Agreement.
Notices to be sent to: Notices to be sent to:
CITY: VENDOR:
Attn: Gunnar Fridriksson Attn: Tony Sandefur
City of Bremerton Action Services Corporation
345 6th Street, Suite 100 PO Box 4339
Bremerton, WA 98337-1891 Bremerton, WA 98312
M.Assignment. Any assignment of this Agreement by the Vendor without the written
consent of the City shall be void.
N.Modification. No waiver, alteration, or modification of any of the provisions of
this Agreement shall be binding unless in writing and signed by a duly authorized representative
of the City and Vendor.
O.Severability. If any one or more sections, subsections, or sentences of this
Agreement are held to be unconstitutional or invalid, that decision shall not affect the validity of
the remaining portion of this Agreement and the remainder shall remain in full force and effect.
P.Entire Agreement. The written provisions and terms of this Agreement, together
with any attached Exhibits, supersede all prior verbal statements by any representative of the City,
and those statements shall not be construed as forming a part of or altering in any manner this
Agreement. This Agreement and any attached Exhibits contain the entire Agreement between the
parties. Should any language in any Exhibit to this Agreement conflict with any language
contained in this Agreement, the terms of this Agreement shall prevail.
IN WITNESS WHEREOF, the parties below have executed this Agreement.
DocuSign Envelope ID: 35C6D5AA-4316-4BA6-9B01-F6B6AF816534
Page 8 of 8
Goods and Services Agreement
Rev. 06/2020
CITY: VENDOR:
City of Bremerton Action Services Corporation
By: By:
Print Name: Print Name:
Its: Its:
Date: Date:
APPROVED AS TO FORM: ATTEST:
By: By:
ROGER A. LUBOVICH, Bremerton City Attorney ANGELA HOOVER, City Clerk
R:\Legal\Legal\Forms\FORMS ON COBWEB\Goods and Services Agreement Rev 06 2020.docx
DocuSign Envelope ID: 35C6D5AA-4316-4BA6-9B01-F6B6AF816534
Tony Sandefur
9/15/2020
President
Thomas Knuckey
9/15/2020
Director of Public Works & Utilities
To: City of Bremerton Date: 8/18/2020
Attn: Gunnar Fridriksson Phone: 360.473.5758
Email: Gunnar.Fridriksson@ci.bremerton.wa.us
Re: Vactor / Excavation Service, PW 2016-18 Utility Potholing Services
Exhibit A
Scope of Work: Pot Holing
Location:
Rates for a vactor and operator at $175/hour, Support Dump truck with compressor
$75/hour, Traffic control support vehicle with arrow board and signs $75/hour
each, Flaggers $45/hour each.
Road base fill and cold mix, if used, billed additionally
If cleaning is required we will remove all solids from catch basins and dispose of
the material as per state, federal and E.P.A. regulations.
ACCEPTED
SIGNATURE_________________________________DATE________________________
Thank you for the opportunity to give you a quote on the above stated work. If you have any
questions or if I can assist you in any other way please feel free to contact me at any time.
Office 1-800-697-1000 Fax 360-373-9711
E-mail signed agreement to; officesupport@getactionservices.com
Exhibit A: Scope of WorkDocuSign Envelope ID: 35C6D5AA-4316-4BA6-9B01-F6B6AF816534
9/15/2020
Memo on Design Consultant Selection
Page 1 of 2
PUBLIC WORKS AND UTILITIES
ENGINEERING DIVISION
MEMORANDUM
TO: File
FROM: Gunnar Fridriksson P.L.S., P.E.
DATE: August 11, 2020
SUBJ: Assisting with hydro -excavation of utilities for Capital projects
-Contractor Selection
Introduction
The City of Bremerton operations and maintenance (O & M) staff are unable to support the Capital
projects program with hydro-excavation of the existing utilities. This is needed to confirm
elevations of the utilities with our proposed improvements to avoid conflicts and unnecessary
additional costs during construction. The projects affected by this inability are:
• Pine Road Basin (#870)
• Ostrich Creek Stormwater Improvements (#869)
•Ostrich Creek Stormwater retrofit (#876)
• Oyster Bay Sewer (#5827)
• E. 11th Street and Perry Avenue (#315018)
In discussions with O & M staff, it was decided to look towards an on-call contract to have this
work provided. Value for the contract is estimated to be less than $25,000, so in accordance with
Bremerton Municipal Code 2.76.040(b)(1), three (3) Contractors were selected from the MSRC
Small Works Roster for a telephone interview.
Interviews
The Contractors were questioned for their ability to provide a vactor truck and crew, remove the
hard surfacing and fill materials to the utility, backfill, compaction and a temporary patch, what
their availability for completing the work was, and the hourly rate for a vactor truck and crew
along with two flaggers. Synopsis of the interviews:
Action Services Corporation, Bremerton, WA (360) 373-4265 – Tony Sandefur – Prefer
5 day notification but will respond with emergency callout. Do have patching and removal
of hard surfacing capabilities. They would have a vactor truck and crew, 5-yard dump
truck, and two flaggers available. Their prevailing wage rate for a vactor and crew is
Exhibit A: Scope of WorkDocuSign Envelope ID: 35C6D5AA-4316-4BA6-9B01-F6B6AF816534
Memo on Design Consultant Selection
Page 2 of 2
$200/hour. Tony noted that potholing support for engineering design is however, not
prevailing wage work and he will forward documentation from L&I that states as much.
The rate for vactor truck and crew not prevailing wage is $175/hour, flaggers are $45/hour
each or $265/hour. Support truck is an additional $75/hour.
Bravo Environmental, Tukwila, WA (425) 424-9000 – Matt Beyer – Need 3 days notice
to dispatch, do have patching capabilities and removal of hard surfacing. They do pay
prevailing wage for all projects. Vactor and crew is $230/hour and flaggers at $70/hour
per flagger or $370/hour for full crew. Support truck is $130/hour, and there is a 3-hour
minimum for a callout and is portal to portal.
Northwest Cascade, Puyallup, WA (253) 848-2371 – Clint Myers – Need 3 days notice
to dispatch, do have patching capabilities and removal of hard surfacing. They do pay
prevailing wage for all projects, they are a union shop. Vactor and crew is $205/hour and
flaggers at $80/hour per flagger. Support truck is $320/hour. They do have a 2-hour
minimum for a callout, bill in 2 hour increments, and is portal to portal.
Summary
Of the three companies interviewed, all three are able to support the projects. However, Action
Services is providing that service at a lower cost and with minimal drive time. I recommend
utilizing Action Services for the potholing work.
Exhibit A: Scope of WorkDocuSign Envelope ID: 35C6D5AA-4316-4BA6-9B01-F6B6AF816534
From:Chance Berthiaume
To:Gunnar Fridriksson (Gunnar.Fridriksson@ci.bremerton.wa.us)
Subject:FW: City of Bremerton
Date:Tuesday, August 11, 2020 7:48:00 AM
Attachments:Specifications.pdf
Gunnar,
Here is what LNI says about prevailing wages and potholing. So no prevailing wages needed as long
as you attach their email below to the agreement.
Chance
Chance W Berthiaume, CPMSM
Stormwater Permit Coordinator
City of Bremerton Public Works & Utilities
100 Oyster Bay Ave N
Bremerton, WA 98312
Phone: (360) 473-5929
Cell: (360) 536-0148
From: Cat Myhre <officesupport@getactionservices.com>
Sent: Monday, July 20, 2020 1:33 PM
To: Chance Berthiaume <Chance.Berthiaume@ci.bremerton.wa.us>
Cc: Tony's Mobile E-mail <tonym@getactionservices.com>
Subject: City of Bremerton
CAUTION: This email originated from outside of the organization. Do not click links or open attachments unless
you recognize the sender and know the content is safe.
Hello Chance,
Please read the email below and attachment, regarding non-prevailing wage.
Cat Myhre
PO Box 4339 ~ BREMERTON ~ WA 98312-0339
(360) 373-4265 ~ (800) 697-1000 ~ FAX (360) 373-9711
From: Christensen, Jim P (LNI) <chrj235@LNI.WA.GOV>
Exhibit A: Scope of WorkDocuSign Envelope ID: 35C6D5AA-4316-4BA6-9B01-F6B6AF816534
Sent: Tuesday, March 21, 2017 2:53 PM
To: Justin Knox <JKnox@ci.lacey.wa.us>
Subject: FW: PW 2016-18 Utility Potholing Services
Jason,
Thank you for speaking with me today. As I mentioned, we consider potholing to be a form of
excavation which, when performed as part of a construction contract, does require prevailing wages.
Potholing performed as part of a design or engineering effort, not connected to any current
construction project, does not require prevailing wages. I have excerpted a passage from an email
we sent to another public agency below, in case it is helpful to you:
Thanks for your prevailing wage question regarding subsurface utility engineering (potholing)
performed well in advance of any actual construction contract for purposes of the design of a
project.
This is an interesting question that may have some conflicting arguments about the correct answer.
Under RCW 39.12.015, all determinations of the prevailing rate of wage are made by the Industrial
Statistician of the Dept. of Labor & Industries. The L&I Industrial Statistician is also the Prevailing
Wage Program Manager.
The determination that may be most on-point is attached. This May 11, 2010 Industrial Statistician
letter to Randy Dubigk of WSDOT addressed work that had it not been performed for design
purposes prior to any construction contract or work, would have required prevailing wages under
chapter 39.12 RCW.
The determination notes the RCW 39.12.030 requirement to include prevailing wage specifications
in public contracts to perform “construction, reconstruction, maintenance or repair.” The letter
notes:
An engineering or design contract performed prior to construction may not contain
contract language to perform any “construction, reconstruction, maintenance or
repair” as those words are used in the full context of RCW 39.12.030. The language
of the contract and the type and nature of the work must be analyzed for the
application, if any, of Chapter 39.12 RCW, the prevailing wage law.
Contracts for engineering and design work that are not a “contract for the
construction, reconstruction, maintenance or repair of any public work to which the
state or any county, municipality or political subdivision created by its laws is a
party,” are not required to contain specifications to require that the laborers,
workers, or mechanics on such work be paid not less than the prevailing rate of pay.
In such instances, there is no prevailing wage requirement. See RCW 39.12.030.
Conversely, contracts for engineering and design work that also include in their
Exhibit A: Scope of WorkDocuSign Envelope ID: 35C6D5AA-4316-4BA6-9B01-F6B6AF816534
language a “contract for the construction, reconstruction, maintenance or repair of
any public work to which the state or any county, municipality or political subdivision
created by its laws is a party,” are, in fact, required to contain specifications that
require the laborers, workers, or mechanics performing such work be paid not less
than the prevailing rate of pay. In instances in which the design contract is also a
contract for construction, reconstruction, maintenance or repair,” then a prevailing
wage requirement must be included in the contract. See RCW 39.12.030.
Please note that the crucial question for this particular analysis is not whether the
work in question is that of a “laborer, worker, or mechanic” but, rather, is focused
on if the contract is “for the construction, reconstruction, maintenance or repair of
any public work…” As always, when the facts vary the answer may be different.
So long as your design contract does not include any further contractual provisions to actually
perform some “construction, reconstruction, maintenance or repair” (as those words are used in
RCW 39.12.030) and occurs in a way that is distinct from (such as comfortably preceding) any
contract to perform the “construction, reconstruction, maintenance or repair” you may be just
barely outside of the universe of prevailing wage requirements in chapter 39.12 RCW.
Subsurface utility engineering (or “potholing”) performed in support of the actual construction likely
will require prevailing wages for the portion of the work that is the work of the laborer, worker, or
mechanic such as work to excavate down to the utility for precise location purposes.
I hope that is helpful to you.
As you can see, this is a complex question. I understand why you made an inquiry!
Subject: PW 2016-18 Utility Potholing Services
Please find specifications attached. This service contract provides for utility potholing whenrequested by the City and is for a two year period not to exceed $150,000 per year. Fill outattached proposal form for a cost per pothole and flagging as defined in the technical portion ofthe specifications. Lowest responsible bidder shall be determined based upon the bid for thelowest sum of “Utility Potholing” and “Flaggers”. Prevailing wages are not required to bepaid for this service contract.
Please submit a sealed written bid by 2:30 PM Friday, March 24, 2017 to the Public Works front
counter. If you have any question please feel free to contact me at (360) 438-2628.
Justin Knox, P.E.
Design Engineer
City of Lacey
Exhibit A: Scope of Work
DocuSign Envelope ID: 35C6D5AA-4316-4BA6-9B01-F6B6AF816534
420 College St SE
Lacey, WA 98503
360.438.2628 Phone
360.456.7799 Fax
jknox@ci.lacey.wa.us
HTTP://www.ci.lacey.wa.us
Exhibit A: Scope of WorkDocuSign Envelope ID: 35C6D5AA-4316-4BA6-9B01-F6B6AF816534