Washington Construction Law Blog

Click here for a handy summary of new laws affecting the construction industry in Oregon from the recently concluded Legislative session.

The sweeping new home warranty legislation proposed by Sen. Weinstein (summarized here) is apparently dead for this session.

Two bills recently introduced in Olympia would, if enacted, radically change the legal landscape in Washington for claims made against residential builders & architects arising from alleged defects.  The two bills are as follows:

1. Tort Claims for Defective Work.  This Senate bill would authorize a homeowner to bring a new cause of action in tort against any participant in designing or building -- architect, GC, subs, etc -- regardless of privity of contract (effectively abrogating the economic loss doctrine in the residential context).  The tort claim itself would be based on violations of new, state-wide mandatory quality standards for water intrusion & envelope design, structural design, fire protection and other areas identified in the bill.  The claim could be made at any time within 4 years of discovery of the defect (subject to the statute of repose limit, presumably).
2. Warranty Bill of Rights.  This Senate bill would create a state-wide, nonwaivable tier of warranties for new home construction (including substantial remodels), including (a) a 2 year warranty against defects in workmanship and materials, (b) a 3 year warranty for various specific trade work such as electrical and plumbing, (c) a 5 year water penetration warranty and (d) a 10 year structural warranty.  Currently, outside the condo context, the only warranty in Washington relating to home construction is the narrow implied warranty of habitability.

The AGC-sponsored effort to overturn Mike Johnson is back in the hopper in Olympia.  Third time's a charm???

The Legislature is considering a new bidder responsibility statute which, if passed in its current form, would:

• Impose four mandatory "responsibility criteria" on contractors who seek to bid on competitively bid public works.   Only one of the four criteria -- that bidder not have been disqualified under RCW 39.06 [ failure to maintain proper license ] or RCW 39.12 [ repeat violations of prevailing wage law ] -- appears substantive.  The other three --(1) proof of current registration under RCW 18.27 (2) a current unified business identified number, and (3) workers comp coverage for bidder's employees -- are more routine.
• Allow public owners to impose "supplemental criteria" in the bid invitation to further define responsibility.
• Provide a mechanism for bidders to request pre-bid changes in the supplemental criteria, and
• Create a right of appeal from any determination of non-responsibility.

The mandatory criteria would also apply to subcontractors at every tier.

This year's attempt to repeal the Mike Johnson decision has died in committee. Mike Johnson held that contractual notice provisions are to be strictly enforced regardless of prejudice to the owner, unless the owner has waived enforcement of the notice provision.

And here is this year's attempt to overturn the Mike Johnson case, which held that notice clauses in construction contracts are to be strictly enforced without regard to whether the late notice caused the owner to suffer prejudice as a result. Similar legislation failed in 2005.

Today is the first day back for the Legislature and WCL will be tracking bills of concern to the industry on a periodic basis. First up is this proposed bill requiring owners to pay up to $10,000 when they reject all bids and start anew on a particular procurement after the bids are opened.