December 2025 Knowing The Waters

By Tim Schermetzler of CSD Attorneys at Law P.S.

DECEMBER – THE SEASON OF PROCUREMENT

The National Retail Federation forecasted that over one trillion dollars will be spent holiday shopping this season. Given the significant personal procurement occurring, it’s fitting that this month’s column discusses port procurement (which is not just limited to the holiday season).

A few weeks back at the WPPA annual meeting, I gave a presentation, along with Dawn Egbert from the Port of Vancouver to the new commissioners on port procurement. When addressing this topic, it is helpful to keep in mind some overarching concepts in public bidding and procurement:

• These laws and policies exist to protect public funds, either by getting the lowest price
  for the public or ensuring decisions are based on competence and qualifications when
  appropriate
• Laws and policies aim to create a level playing field
• Ports must comply with the statutory requirements and port policies
• Ports should have well drafted form contracts and documents for procurement
• Ports should document decisions, both at the staff and commission level

Port procurement requirements can be put into a few categories: Professional Services; Personal Services; Public Works; Purchases of Supplies, Materials, and Equipment; Ordinary Maintenance; and Electronic Data Processing or Telecommunications. Each category has different requirements provided in statute. And don’t forget—your port may have adopted policies that modify or add additional requirements not found in state law. The below Port Procurement Flowchart provides a quick-reference overview of these different processes followed by a summary of some of these procurement categories and laws.

Port Procurement Flowchart:

Public Works

“Public works” means all work, construction, alteration, repair, or improvement other than ordinary maintenance, executed at the cost of the State or of any municipality. ¹ Public works do not include leasehold improvements performed by a port tenant unless those improvements are required by the lease and result in lease payment credit or where long terms improvements are required on a short term lease. Public works do not include ordinary maintenance or equipment, in most cases.

The port must award the public works contract to a responsible bidder with the lowest responsive bid. ² To be accepted, a bid must be responsive, meaning a bid that meets the material terms of the bid in all respects when judged on its face. The port is not required to waive or accept an irregularity in the bid. Irregularities are deviations from the terms and conditions of the bid documents. Typical irregularities include late submissions, failure to sign a bid, and failure to submit required bid security. Submitting a responsive bid is not enough for the bidder to be responsible. A responsible bidder ³ is defined as a contractor that meets all of the criteria in RCW 39.04.350, which includes:

• At the time of bid submittal, have a certificate of registration with Chapter 18.27 RCW;
• Have a current state UBI number;
• Have industrial insurance, employment security and state excise tax registration;
• Not be disqualified from bidding on any public works contract under RCW 39.06.010 or RCW 39.12.065(3);
• If bidding on a public works project subject to the apprenticeship utilization requirements, not have been found out of compliance by the Washington State apprenticeship and training council in the last year;
• Received training on the requirements related to public works and prevailing wage by the Department of Labor and Industries or an approved trainer; and
• Within three years before the bid, not to be found to have willfully violated wage laws in RCW 49.48.082 – RCW 49.46 or RCW 49.52.

Ports can add additional supplemental bidder responsibility criteria that a successful bidder must also meet. ⁴ Note that there are also alternative public works processes outlined in Chapter 39.10 RCW including: (1) design-build contracting; (2) general contracting/construction manager contracting; and (3) job order contracting—all of which modify the general statutory requirements for procuring public works.

Small Works

Small works are public works contracts that are $350,000 or less. If the project qualifies as a small works project, the port may utilize a small works roster instead of competitive bidding as required for other public works. Your port may adopt the State’s small works roster administered by MRSC or adopt a small work roster specific to your port.

Ports have special statutory authority for projects up to $40,000 to make a direct award without calling for bids. ⁵ The restrictions in this subsection do not permit the division of the project into units of work or classes of work to avoid calling for bids. In addition, to take advantage of this provision, the port district managing official must make his or her best effort to reach out to qualified contractors, including certified minority and woman-owned contractors.

Professional Services (A&E Contracts)

The procurement of professional services for architects, engineers, land surveyors, and landscape architects is governed by Chapter 39.80 RCW. These are sometimes referred to as “A&E” contracts. The port does not pick the lowest bidder for these contracts, rather the port must employ a qualification-based selection method which first considers the firm’s competence and qualifications and then considers a fair and reasonable price. The port may establish its own evaluation criteria for professional services. ⁶ The port must publicly solicit by publishing advanced notification of either (i) each project that professional services are needed for or (ii) for a category or type of professional service. ⁷ Port policies should include a plan to ensure that minority and women-owned and veteran-owned firms are afforded the maximum practicable opportunity to compete for and obtain public contracts for professional services. ⁸

Personal Services

Personal services are governed by Chapter 53.19 RCW. “Personal services” is defined as professional or technical expertise provided by a consultant to accomplish a specific study, project, task, or other work statement which may not reasonably be required in connection with a public works project meeting the definition in *RCW 39.04.010(4). ⁹ This includes, for example, geologists, ecologists, and appraisers. Personal services do not include purchase services ¹⁰ or professional services under Chapter 39.80 RCW. All personal service contracts shall be entered into pursuant to competitive solicitation, except:

1. Emergency contracts;
2. Sole source contracts;
3. Contract amendments;
4. Contracts between a consultant and a port of less than fifty thousand dollars. However, contracts of fifty thousand dollars or greater but less than two hundred thousand dollars shall have documented evidence of competition. Ports shall not structure contracts to evade these requirements; and
5. Other specific contracts or classes or groups of contracts exempted from the competitive solicitation process by the commission when it has been determined that a competitive solicitation process is not appropriate or cost-effective.

Final Tips

• Adopt and follow a port procurement policy.
• Ask: Does this procurement method meet state law and adopted port policy? Work with staff and legal counsel to ensure statutory and policy compliance.
• Adopt a delegation of authority. Include a commission reporting loop above a threshold amount in port policy.
• Include budget-based management. Cross reference delegation of powers.
• Follow a defined system to document competitive processes and expectations.
• Show your homework—document the process and ensure reporting is consistent and made publicly available.
• Encourage training (WPPA, MRSC, internal staff-to-staff, from your legal counsel).
• This is complicated stuff—work with your legal counsel and staff to better understand state law procurement processes and your port’s procurement policies.

There are numerous steps and many opportunities to get tripped up when dealing with port procurement, so perhaps the best advice this holiday season is in the words of J. Fred Coots and Haven Gillespie’s holiday classic Santa Claus is Coming to Town … “make a list, and check it twice” and find out who is “naughty” (“unresponsive”) and “nice” (“responsible”).

As always, if you have questions, work with your port’s legal counsel to address your specific questions. Happy Holidays!

If you have a question for Knowing the Waters, please e-mail me at tschermetzler@csdlaw.com.

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¹ RCW 39.04.010(4).
² RCW 39.04.010(1) and RCW 53.08.130.
³ RCW 39.04.010.
⁴ RCW 39.04.350(3).
⁵RCW 53.08.120(2)(c).
⁶ RCW 39.80.040.
⁷ RCW 39.80.030.
⁸ RCW 39.80.040.
⁹ RCW 53.19.010(6).
¹⁰ RCW 53.19.010(8) purchased services means services provided by a vendor to accomplish routine,
continuing, and necessary functions. “Purchased services” includes, but is not limited to, services for
equipment maintenance and repair; operation of a physical plant; security; computer hardware and
software maintenance; data entry; key punch services; and computer time-sharing, contract
programming, and analysis.