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

 

On June 8, Division I of the Court of Appeals issued an unreported decision on the challenge by STITA, the incumbent provider of taxi services for Sea-Tac Airport, to a procurement by the Port of Seattle that led to an award to a competitor. The Court affirmed the trial court's denial of injunctive relief to STITA, based primarily on STITA's failure to comply with what the Court termed a "clear" process for handling protests stated in an addendum to the solicitation. Although the decision is unpublished, we address it here because of the case's notoriety. You can view it here: Download file.

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Following our post about the drop in construction spending, it is nice to note that the AGC has posted a nifty resource (called "Where's the Work") to help track current and upcoming public works projects.  The website can be accessed here:  http://www.agcwa.com/NewsandInfo/WherestheWork/

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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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In a case of first impression, the Supreme Court yesterday held that because the primary purpose of Safeco Field is public recreation, claims stemming from design and construction of the stadium are exempt from the statute of limitation under RCW 4.16.160 (which provides that claims brought for the benefit of the state are not subject to statutes of limitation).  This is believed to be the first case in the country addressing the time periods for suit applicable to professional sport facilities constructed with public and private funds.

The decision clears the way for the two plaintiffs (the PFD and the Mariners) to collect more than $3 million in damages from the contractor JV based on the failure of the intumescent fire protection coating system on the stadium's structural steel.

Copy of opinion also available here Download file

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After its audit woes hit the front page earlier this year, the Port retained a fraud investigation team to conduct an internal investigation of the Port's contracting practices.  The report, attached here for review, is a rare and detailed inside look at some unusual goings on at a large public owner.

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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.

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This case won't win any prizes for ease of comprehension, that's for sure.  But it does finally settle the issue of what pay classification certain electricians fell into at the McCaw Hall opera job.  Were the workers who pulled low voltage wire of lengths greater than 10 feet "inside wiremen" (higher prevailing wage pay classification) or "electronic technicians" (lower PW rate)?  The workers won.  Check out the Court's reasoning here.

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There's a bill introduced in Olympia to change the definition of "public works" in RCW 39.04.010 to include work performed by architects, engineers and consultants -- and to extend this requirement specifically to port districts.

Update:  This bill has been withdrawn.  Its sponsor plans to introduce a new version scaling back its scope to CM and Project Management services, and requiring only that such services be procured on a best value-type negotiated solicitiation.

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In this classification dispute over the rate of pay for certain electricians, the Court of Appeals examines the ins & outs of how L&I drafts new proposed regulations.  Not exactly a scientific process, to say the least.  In any event, given the remedial purpose of the Act, it is not surprising the Court sided in favor of paying the electricans the higher of the two possible rates.

Copy of opinion also available here Download file

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More than a year after oral argument, the Supreme Court today finally decided the SeaTac Third Runway prevailing wage case known as Silverstreak.   Background on the case is available here. 

By a 6-3 vote, the Court held that truck drivers who merely dump fill onto an embankment -- but who don't otherwise spread, level or roll the material -- are nonetheless entitled to be paid the prevailing wage rates. 

The Court suggested that prevailing wages would not apply, however, if the truck drivers merely dumped the fill in a central stockpile located on site.

The Court's liberal interpretation of the scope of the prevailing wage statute, driven largely by the Court's deference to L&I policy judgment, must be carefully reviewed by material suppliers and general contractors who rely on quotes from material suppliers.  (The suppliers in Silverstreak only dodged the bullet here because of the Court, on unusual facts, held that L&I was estopped from enforcing the broad reach of the statute in this particular case because the suppliers had relied on prior administrative letters from L&I stating that the wage rates would not apply to end-dump truck drivers)

Copy of lead opinion also available here Download file

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How far do the prevailing wage rules go when a government entity teams up with a private developer to build a public/private project?  It's a question on the minds of many developers.  Under this Oregon ruling, the prevailing wage rules stop where the public part of the money stops -- here, the construction of a hotel with private funds was exempt from prevailing wage rules even though the hotel was built on the same block and by the same contractor as the public component (a convention center).

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