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We were discussing the design-build option for district hospital construction and none of us could remember the details. What is the maximum scope and dollar value for a design-build package and what are the hoops involved? This would involve hiring someone to design and build a small construction project, such as a remodel or small building without the need for the bidding process. I believe some legislation was passed a few years back, but I can't locate it.

 

 

This question can be answered from a general perspective to a more narrow focus on design-build.

In terms of public works contracting and bidding requirements related to public hospital districts, RCW 70.44.140(1) generally provides that all materials purchased and work ordered for a public works project must be through the competitive bidding process explained in RCW 70.44.140, unless the estimated cost of the materials purchased and work ordered for the project is $75,000 or less.

Subpart (2) of RCW 70.44.140 gives the district the option of using the small works roster process under RCW 39.04.155, which allows such a process for projects with an estimated cost of $300,000 or less.

Subpart (3) refers to purchases with an estimated cost up to $15,000, and subpart (4) allows a public hospital district commission to waive the competitive bidding requirements of RCW 70.44.140 pursuant to the specific and limited exceptions set forth in RCW 39.04.280.

Note that the design-build process is not specifically referred to in RCW 70.44.140 nor in any other section of chapter 70.44 RCW. However, RCW 70.44.140 allows districts to, in connection with a conventional bidding process, invite tenders from bidders for the work or materials on plans and specifications submitted by bidders, which is a form of design-build. Moreover, the district has other options, including with respect to design-build.

You indicated that this involves designing and building a small construction project, such as a remodel of a small building. If the amount of the materials purchased and work ordered for the project is $75,000 or less, there is no competitive bid process required under RCW 70.44.140 for those materials and that work. Note, however, that chapter 39.80 RCW has requirements related to procuring architectural and/or engineering services. Additionally, keep in mind that if a project is a public works project, regardless of the dollar amount, prevailing wage requirements apply under chapter 39.12 RCW.

Regarding design-build options provided for by statute, perhaps you are thinking about chapter 39.10 RCW. RCW 39.10.210, the definitional section of the chapter, defines a "public body" to include special purpose districts, which includes public hospital districts. See RCW 39.10.210(12). RCW 39.10.270 relates to the project review committee, such that an eligible public body can seek certification from the project review committee regarding particular design-build projects.

RCW 39.10.300(1) describes design-build projects which have a total cost of over $10 million. Other subsections of RCW 39.10.300 address other particular situations, including some of much smaller dollar amounts. Note that subsection (3) provides:

The design-build procedure may be used for the construction or erection of preengineered metal buildings or prefabricated modular buildings, regardless of cost and is not subject to approval by the committee.

Note also that there is a provision in another chapter, chapter 39.04 RCW, for design, fabrication, and installation of building engineering systems. See RCW 39.04.290. That provision applies to local governments, including special districts and other municipal corporations.


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I need help to understand the process for how Request for Proposals are supposed to be handled. We are looking at selling our building and want to ask realtors for an RFP to see who will give us the best price. 

 

 

If this involves sale of surplus real property, RCW 70.44.300 would apply. Real property includes not only land, but also any buildings or other structures attached to land. Personal property (see discussion of RCW 70.44.320 below) only includes property that is not physically attached to land (e.g., moveable equipment). Consequently, RCW 70.44.300 applies not only to the sale of land but also the sale of a building unless the building is a mobile unit not attached to land.

Regarding the process for selling district real property, RCW 70.44.300 is fairly detailed and includes several specific requirements.

Under subpart (1) of RCW 70.44.300, the board of commissioners is required to adopt a resolution declaring that the real property is no longer required for public hospital district purposes or that the sale would further the purposes of the public hospital district. Under subpart (2), any sale of real property by the hospital district must be preceded by market value appraisals by three licensed real estate brokers or professional real estate appraisers or three independent experts in valuing health care property, selected by the board. The market value appraisals must be done not more than a year prior to the date of sale, and no sale shall take place if the sale price would be less than 90% of the average of the appraisals obtained by the district.

If the value of the real property the board proposes to sell exceeds $100,000, subpart (3) requires the board to publish notice of its intention to sell the property at least once each week for two consecutive weeks in a legal newspaper of general circulation within the hospital district. The notice must describe the property to be sold and designate the place where and the day and hour when a hearing will be held. The board must hold a public hearing on the proposal to sell the real property at the place and the day and hour identified in the notice, and the board must consider evidence offered for and against the propriety and advisability of the proposed sale.

Regarding your specific question about using a request for proposal process, subpart (4) of RCW 70.44.300 has particular requirements related to the district contracting with a licensed real estate broker to assist in the sale of district property. However, the more likely scenario is the use of an RFP or some other process to solicit proposals to purchase district real property. A hospital district has rather broad discretion to determine the most effective process to use to solicit such proposals, as long as the board otherwise complies with RCW 70.44.300.

Note that if the sale only relates to sale of personal property (e.g., property that is not physically attached to land, such as moveable equipment or a building that is a mobile unit not attached to land -- see above reference), the process is a bit more streamlined. RCW 70.44.060(2) provides the authority for the board of commissioners generally to sell property, equipment, and hospital and health care facilities and systems. RCW 70.44.320 provides:

The board of commissioners of any public hospital district may sell or otherwise dispose of surplus personal property of the district which the board has determined by resolution is no longer required for public hospital district purposes in such manner and upon such terms and conditions as the board in its discretion finds to be in the best interest of the district.

(Emphasis added.)

Under RCW 70.44.320, there is discretion and flexibility regarding the method to be utilized by the hospital district when disposing of surplus personal property.

In either scenario, the district needs to also check to see if it has adopted any policies of its own regarding such activities and to follow those policies (to the extent they are consistent with state law).

In terms of the request for services, we recommend that the district describe the property generally and make clear that it is seeking an agent to sell the property for a competitive price. The district needs to also get the property appraised to determine its fair market value. The level of detail in the request for services will depend upon whether real or personal property is at issue. If real property is at issue, we think it would be a good idea to make clear in the proposal that the district is proceeding pursuant to RCW 70.44.300 (including describing the process briefly) so prospective agents know that this is a public hospital district and special rules apply. It would also be a good idea to find an agent who is familiar with working with public hospital districts and the special provisions that apply to them.

   

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How is the OPMA interpreted regarding social gatherings or events attended by a quorum of board commissioners?

 

 

Whether a social setting (e.g., reception, social gathering) in which a quorum (majority) of public hospital district board commissioners participates would constitute a "meeting" under the Open Public Meetings Act depends upon whether the business of the hospital district would be discussed by the commissioners as part of the social setting/event. If a social setting in which a majority of the board participates is one in which the commissioners are merely being provided with information (similar to a training session attended by a majority of commissioners, such as a webcast -- see below), and the commissioners are merely receiving the information and the business of the hospital district is not discussed among the commissioners, such a social setting would not constitute a meeting under the OPMA. However, if a majority of commissioners participates and the commissioners will be discussing among themselves the business of the district as part of the social setting (or training session), such an activity would be a meeting under the OPMA.

Regarding what would constitute conducting district business if a majority is involved in such a social setting, we think the commissioners are free to interact and speak with those at the gathering without implicating the OPMA as long as they don't discuss district business among themselves.

More specifically, under the OPMA a "meeting" means meetings in which action is taken. RCW 42.30.020(4). "Action," as referred to in that definition of "meeting," is defined as:

... the transaction of the official business of a public agency by a governing body including but not limited to receipt of public testimony, deliberations, discussions, considerations, reviews, evaluations, and final actions. "Final action" means a collective positive or negative decision, or an actual vote by a majority of the members of a governing body when sitting as a body or entity, upon a motion, proposal, resolution, order, or ordinance.

RCW 42.30.020(3).

Since a hospital district board of commissioners can transact business when a majority of its members are present, the board is conducting a meeting subject to the requirements of the OPMA whenever a majority of its members meet together and transact hospital district business. This includes simply discussing some matter having to do with district business. It is not necessary that the commissioners be in the physical presence of each other for there to be a meeting subject to the OPMA. For example, it is possible for a meeting to occur through a discussion of district business by a majority of the board via telephone or email. See, e.g., Wood v. Battle Ground School Dist., 107 Wn. App. 550, 562 (2001). Additionally, it is not necessary that a governing body take "final action" for a meeting subject to the OPMA to occur. As above referenced, RCW 42.30.020(3) defines "final action" as:

... a collective positive or negative decision, or an actual vote by a majority of the members of a governing body when sitting as a body or entity, upon a motion, proposal, resolution, order, or ordinance.

MRSC's OPMA publication is a good resource on such issues.

In a similar vein, we have addressed inquiries regarding whether a webcast offered to commissioners and others across the state as part of ongoing training and not targeted at any particular district would be considered a meeting under the OPMA. In such circumstances, if a majority of the board of commissioners participates in the webcast, and the commissioners do not transact the official business of the district, this would not constitute a meeting under the OPMA. However, if a majority of commissioners participates and the commissioners discuss district business, such an activity would constitute a meeting under the OPMA. In terms of what constitutes conducting district business if a majority is involved in such a webcast, we think the commissioners are free to ask questions and participate fully in the webcast without implicating the OPMA as long as they don't discuss district business among themselves.

Note that there are penalties associated with violations of the OPMA. RCW 42.30.120 provides:

(1) Each member of the governing body who attends a meeting of such governing body where action is taken in violation of any provision of this chapter applicable to him, with knowledge of the fact that the meeting is in violation thereof, shall be subject to personal liability in the form of a civil penalty in the amount of one hundred dollars. The civil penalty shall be assessed by a judge of the superior court and an action to enforce this penalty may be brought by any person. A violation of this chapter does not constitute a crime and assessment of the civil penalty by a judge shall not give rise to any disability or legal disadvantage based on conviction of a criminal offense.

(2) Any person who prevails against a public agency in any action in the courts for a violation of this chapter shall be awarded all costs, including reasonable attorney fees, incurred in connection with such legal action. Pursuant to RCW 4.84.185, any public agency who prevails in any action in the courts for a violation of this chapter may be awarded reasonable expenses and attorney fees upon final judgment and written findings by the trial judge that the action was frivolous and advanced without reasonable cause.

Additionally, RCW 42.30.130 provides:

Any person may commence an action either by mandamus or injunction for the purpose of stopping violations or preventing threatened violations of this chapter by members of a governing body.

We also recommend that you consult with the district's legal counsel about possible OPMA implications related to potential board activities.

   

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Are there campaign contribution limits related to candidates for public hospital district commissioner?

 

 

We spoke with Tony Perkins, Lead Political Finance Specialist of the Public Disclosure Commission (PDC) (360-586-1042; tony.perkins@pdc.wa.gov), about this issue.

Although there are contribution limits under RCW 42.17.640 that apply to candidates for a variety of local governmental offices (including candidates for county, city council, and mayoral offices -- generally limited to an aggregate of no more than eight hundred dollars for each election in which the candidate is on the ballot or appears as a write-in candidate), such limits do not apply to candidates for public hospital district commissioner positions.

In relevant part, Tony indicated:

Candidates running for hospital commissioner, and for offices in most other special purpose districts, are not limited under current state law in the amount they can receive from any one contributor.

   

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All email for our board members is handled by Gmail on the cloud. Documents are also viewed or worked on if needed on the cloud with Gmail apps. Are records held by a third party provider subject to the Public Records Act?

 

 

Keep in mind that a record could be considered the district's public record under the Public Records Act (PRA) even if it is not in the district's control. For example, if a record relates to the conduct of district business and the district has "used" the record for district business, it is the district's public record. See, Concerned Ratepayers v. PUD of Clark County, 138 Wn.2d 950 (1999).

A key consideration if the record is in the possession of a third party with which the district has a contract to provide services, such as Google through Gmail and/or Google Docs or other cloud computing, is that the record will very likely still be regarded as the district's public record, depending on the terms of the contract with the service provider. Whether a record resides on a server in some other state or in a district owned facility is not dispositive in determining whether the record is the district's record. This is an issue best addressed in the contracts with third party service providers.

It is important that districts clearly specify in those contracts which records belong to the district and, regarding those district records, what steps the service provider must take to adequately back up the records, delete records once the applicable retention periods expire, and what will happen to those records when the contract expires or is terminated. We recommend that your district only contract with service providers that can comply with our state's PRA and retention requirements.

Our state law indicates that the district must remain the legal custodian of its records. The records must be retained for the required retention period set out in state law under the applicable records retention schedule and the records must be in a format that is searchable and retrievable in order to respond to public records requests.

A Washington Administrative Code regulation addresses this issue. WAC 434-615-010 provides:

All public records shall be and remain the property of the state or local agency. They shall be delivered by outgoing officials and employees to their successors and shall be preserved, stored, transferred, destroyed, and otherwise managed, only in accordance with the provisions of chapter 40.14 RCW or as otherwise provided for by law and by these regulations.

Whatever arrangement is reached with a third party provider, such as Google, the written contract with the provider needs to be clear that the district remains the legal custodian of the records with control over their disposition. While the district is the legal custodian of the records, however, it is possible for such records to be electronically maintained with a service such as Google, if the appropriate contractual relationship is in place.

Given the nuances involved in such matters, we strongly recommend that you consult with your district's legal counsel regarding such issues.

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