Washington

Key Agency(ies): The Washington Department of Enterprise Services (DES) is the central procurement authority for Washington’s Executive agencies, and is led by the DES Director.

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Key Statute: Washington’s principal procurement statute for goods and service contracts is located at Title 39, Chapter 26 of the Revised Code of Washington (Wash. Rev. Code) (Procurement of Goods and Services).

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Key Regulations: DES’s administrative rules implementing procurement statutes are located in Title 200 of the Washington Administrative Code (Wash. Admin. Code).

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Procurement Types/Highlights: Washington’s default methods of procurement are through competitive solicitations (IFB/RFP). Agencies use invitation for bids when price is the primary factor for source selection, and requests for proposals when evaluating on a best value basis. Wash. Rev. Code § 39.26.160 describes the requirements that agencies must meet before awarding a contract through a competitive solicitation.

Washington also allows simplified purchasing for low-value items under “direct buy” authority. Wash. Rev. Code § 39.26.125(3) exempts small purchases from the competitive solicitation mandate. The DES director is required to set dollar limits and criteria for such purchases.

Bid Protests:

Regs Governing Bid Protests:

• Under Wash. Rev. Code § 39.26.170, all agencies with procurement authority must have a “clear and transparent protest process” for vendor disputes.

Timeliness Rules:

• Vendors must submit pre-award protests (referred to as “complaints” in Washington) prior to the bid or proposal due date, and vendors must be allowed to submit complaints up to at least five business days before the proposal due date.
• After bids are opened and an apparent successful bidder is identified, agencies must provide a defined protest period before the contract is awarded. Under DES rules, the protest period must be at least five business days long at a minimum.

Protest Process:

• Each agency’s protest procedures can vary slightly, but all must meet minimum standards set by DES Policy 170.
• Typically, a protest coordinator will review the protest and will issue a written decision. By law, the contract cannot be executed until the protest is resolved, unless DES grants an exception for urgent circumstances. Agency level protests are the only administrative protests available to disappointed vendors.
• One additional element to Washington’s protest process is the allowance of protest bonds. Under Wash. Rev. Code § 39.26.190, agencies may require a protester to post a bond as a condition of filing a protest, in accordance with DES policies.

Claims: Wash. Rev. Code § 39.26.180 directs DES to adopt uniform policies for contract management, including the use of alternative dispute resolution processes. In addition Wash. Rev. Code § 39.26.180(1)(c) mandates alternative dispute resolution processes as a required element of state contract management.

In addition to agency-specific administrative claim processes, under Wash. Rev. Code § 4.92.010 Washington has waived sovereign immunity and has consented to be sued on contract claims. Contractors may seek money damages against the state for breach of contract.

Suspension & Debarment: Washington’s suspension and debarment procedures are controlled by Wash. Rev. Code § 39.26.200 and Wash. Admin. Code § 200-305.

The DES director has the power to debar a contractor for up to three years based on specified causes. The causes for debarment include: conviction of a criminal offense related to or obtaining a public contract, fraud or embezzlement, bribery, falsification of records, federal or state false claims acts, and contract violations indicating a lack of integrity or poor performance.

Before debarring a contractor, the director must provide notice of the intent to debar, provide the reasons for the debarment, and give the contractor a reasonable opportunity to be heard. The director may also impose monetary fines in lieu of debarment.  

Interesting/Distinctions: Washington requires its state procurement professionals to be trained and, if applicable, certified. Under Wash. Rev. Code § 39.26.110, DES was required to establish a training or certification program and provided that by July 1, 2015, no state employee could manage or execute contracts without completing the approved training