Knowing the Waters- April 2021 column by WPPA Counsel Frank Chmelik with Seth Woolson & Peter Ruffatto

Seth Woolson is a principal at Chmelik Sitkin & Davis and works on public work construction issues for port districts.  Peter Ruffatto was the Bellingham city attorney before joining Chmelik Sitkin & Davis.

 This month’s topic surrounds the rules of public works, ordinary maintenance and maintenance.  The topic deserves attention because the law is confusing and port attorneys are frequently asked about the need to comply with public work statutes – most notably pay prevailing wage for maintenance projects. 

RCW 39.04.010 defines a public work as “all work, construction, alteration, repair, or improvement other than ordinary maintenance, executed at the cost of the state or of any municipality.” Therefore, RCW 39.04.010 contemplates that “ordinary maintenance” is not a public work and would not therefore require compliance with the competitive procurement processes and bonding requirements.[1]  While not explicitly stated, it is generally understood that the statute applies to publicly owned real property and the fixtures and improvements thereon such as docks, floats, roads, buildings and all component parts of these improvements. 

RCW 39.04.010 goes onto to provide that “all public works, including maintenance when performed by contract shall comply with chapter 39.12 RCW” – the prevailing wage statutes.  Unfortunately, there are no statutory definitions of the term “ordinary maintenance” or “maintenance” in the public works statutes, and the application of competitive procurement processes and bonding requirements for “ordinary maintenance” is confusing.

  Adding to the confusion, the Department of Labor and Industries (which sets and enforces the prevailing wage rules) has weighed in with WAC 296-127-010 with a very narrow definition of “ordinary maintenance” as “maintenance work performed by the regular employees of the state or any county, municipality, or political subdivision created by its laws.”  This definition supports the Department’s predisposition to require prevailing wage payments.  But confusion remains since the WAC was issued by the Department of Labor and Industries on the narrow question of prevailing wage requirements and not the larger issue of the exemption or “ordinary maintenance” from all other public work requirements.  In Spokane v. Department of Labor and Industries, 100 Wn. App. 805, 819-20 (2000), the Court of Appeals Division III agreed with the Department holding that maintenance, when performed by contract, is subject to prevailing wage law.

Now that we have explained the muddled state of the law, here are some examples for port districts regarding maintenance of port facilities and equipment.

·       Unlike some other municipal governments, port districts can use their own employees to undertake public works projects, including maintenance (RCW 53.08.120). However, for projects over $40,000 the port must determine that the port employees can accomplish the project less expensively than by a public work contract.  Normal port wages apply, and prevailing wage requirements do not apply.  For example, one port district purchased a metal hangar building and had the port employees erect the structure.

·       Janitorial services.  Port employees can do this work.  If contracted out, the employees of the contractor which provides this service must be paid prevailing wages.  RCW 39.12.020 specifically requires prevailing wages for “all public building service maintenance contracts”.

·       Routine and periodic maintenance of building components – for example periodic roof maintenance or periodic routine servicing of HVAC units. Port employees can do this work.  If the work is contracted out the Department of Labor and Industries defines this as falling outside ordinary maintenance and therefore prevailing wage applies.  We note that while this may fall outside the definition of a “public work” for bidding and bonding, the law is unclear so the best practice would be to treat this as a public work and comply with competitive procurement processes and bonding requirements.

·       Repair of a failed building component – for example and electric motor fails in an HVAC unit and an electrical contractor is hired to come to the port and provide the repair – prevailing wage rules would apply. Here again, the best practice would be to treat this as a public work and comply with competitive procurement processes.

·       A port outboard boat motor is taken to a marine repair company for an overhaul.  The law is unclear here, but generally speaking this is not a public work because the work is not accomplished on port real property or a fixture or improvement such as roads, bridges and buildings property.  A similar answer would apply to a port vehicle taken in for maintenance. However, port policies on procurement should be followed when selecting the repair shop.

·       A failed motor from an HVAC unit is removed by port employees and taken to an electrical shop for repair and once repaired reinstalled by the port employees.  Again, the law is less than clear but the best analysis is that this is not prevailing wage work because port staff undertook the work.  The electrical shop employees do not need to be paid prevailing wage.   Here again, port policies on procurement should be followed when selecting the electrical shop.

In summary, all work done on port real property and improvements thereto by contract, including such things as pump repairs, motor repairs, and routine maintenance of HVAC systems and roofs, require payment by the contractor of prevailing wages.  

As always, please contact your port counsel with any questions regarding this topic.   And, if you have a particular question for a Knowing the Waters, please email me at fchmelik@chmelik.com.

[1] There are a variety of rules and exceptions on these requirements.  Periodically the WPPA provides training on these rules and the exceptions.