Washington Construction Law Blog : Washington Construction Lawyer & Attorney : Davis Wright Tremaine Law Firm : Serving Seattle, Spokane, Tacoma, Bellevue, Everett & Yakima

Governor Gregoire has signed several bills expanding the subpoena authority of various state agencies.  The new powers are intended to enable the agencies to investigate the underground economy, SHB 2789 (http://apps.leg.wa.gov/documents/billdocs/2009-10/Pdf/Bills/Session%20Law%202010/2789-S.SL.pdf), and for the Dept. of Labor & Industries to enforce RCW 19.28 (electricians and electrical installations), SHB 2555 (http://apps.leg.wa.gov/documents/billdocs/2009-10/Pdf/Bills/Session%20Law%202010/2555-S.SL.pdf).  Both bills are effective June 10, 2010.

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The 2007 legislation on "supplemental bidder responsibility" (RCW 39.04.250) is getting a lot of attention across the industry.  If you'd like an overview of some key issues, please check out the attached presentation we made recently to a workshop organized by APWA-WA and MRSC.  Download file

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Puzzled by the Buy American clauses in the new federal stimulus act?  Or just  curious?  Here's an excellent run down written by DWT's Craig Gannett.

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'Tis the season for legislation and all that good stuff...here's rundown of a few items winding their way through the Capitol which are of interest to the construction industry:

1. False Claims Act.  A proposal to create a false claims act in Washington (Senate Bill 5144)  is being opposed by the AGC.
2. Subcontractor Listing Statute.  Major revisions to this statute (RCW 39.30.060) are proposed in Substitute Senate Bill 5969.
3. Viaduct Tunnel Project.  This bill proposes to put the deep bore tunnel option on the fast track.

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In case you want to catch up on some developments in the past year or so, check out the attached Powerpoint talk which was presented today to a group of PUD & municipal lawyers. 

We covered recent legislative innovations (i.e., the modifications to the GC/CM statute & the fairly new Bidder Responsibility statute) as well as some notice cases in the Mike Johnson genre.

The presentation also covers some recurring owner liability issues (i.e, Spearin, differing site conditions, acceleration, inconclusive change orders, etc) and what you can do about them to limit risk.

Download file

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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.

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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.

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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.

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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.

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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.

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