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AGO 1971 No. 29 - September 16, 1971
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Slade Gorton | 1969-1980 | Attorney General of Washington

COUNTIES ‑- ROADS ‑- CONTRACTS ‑- COMPLIANCE WITH BIDDING REQUIREMENTS AS TO CONTRACTS FOR CONSTRUCTION OF COUNTY ROAD IMPROVEMENTS

(1) When a board of county commissioners enters into a contract for the construction or improvement of county roads under chapter 36.77 RCW, the board is required to comply with the bidding requirements of RCW 36.77.020 through 36.77.040 even though the estimated cost of the project does not exceed $25,000.

(2) A board of county commissioners may direct the performance of road construction or improvements by "day labor," rather than pursuant to contract, if the estimated cost of such project does not exceed $25,000.         

(3) Where a board of county commissioners hires one or more pieces of equipment and their operators, individually, to perform road construction or improvements in connection with a project having an estimated cost of less than $25,000, it may do so without complying with the bidding requirements of RCW 36.77.020 through 36.77.040 only if the operators so hired acquire the status of county employees rather than serving as independent contractors.

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                                                              September 16, 1971

Honorable Paul Klasen
Prosecuting Attorney
Grant County
Grant County Court House
Ephrata, Washington 98823

                                                                                                                 Cite as:  AGO 1971 No. 29

Dear Sir:

            By letter previously acknowledged, you have requested our opinion upon three questions which we paraphrase as follows:

            (1) Must a board of county commissioners, in entering into a contract for the construction or improvement of county roads under chapter 36.77 RCW, the estimated cost of which  [[Orig. Op. Page 2]] project does not exceed $25,000, comply with the bidding requirements of RCW 36.77.020 through 36.77.040?

            (2) May a board of county commissioners direct the performance of road construction or improvements by "day labor," if the estimated cost of such project does not exceed $25,000?

            (3) May a board of county commissioners hire one or more pieces of equipment and their operators, individually, to perform road construction or improvements if the estimated cost of such project does not exceed $25,000, without complying with the bidding requirements of RCW 36.77.020 through 36.77.040?

            We answer your first and second questions in the affirmative and your third question in the manner appearing in the analysis below.

                                                                     ANALYSIS

            Chapter 36.77 RCW is a comprehensive enactment (originally enacted as chapter 187, Laws of 1937) governing the procedures to be followed by a county in the construction or improvement of roads under its jurisdiction.  As such, of course, it is basic that we must construe all of the parts of this chapter as beingin paria materia (2 Sutherland, Statutory Construction, 531-32 (3rd ed. Horack 1943)), and attempt to reconcile the separate parts thereof into a consistent and coherent whole.

            Under chapter 36.77 RCW, there are two methods by which the board of county commissioners may cause county roads to be constructed or improved.  The first is set forth in RCW 36.77.020, as follows:

            ". . . if . . . [the board of county commissioners]determines that the work shall be done by contract, [it shall] advertise a call for bids upon such construction work by publication in the official county paper and also one trade paper of general circulation in the county, in one issue of each such paper at least once in each week for two consecutive weeks prior to the time set in the call for bids for the opening of bids. . . ." (Emphasis supplied.)

             [[Orig. Op. Page 3]]

            The alternative method for the construction or improvement of county roads is set forth in RCW 36.77.060, as follows:

            "The board of [county commissioners] may cause any county road to be constructed or improved by day labor in an amount not to exceed twenty-five thousand dollars on any one project.  This section shall be construed to mean a complete project and shall not be construed to allow or permit the construction of any project by day labor by division thereof into units of work or classes of work.  All construction work to be performed at a cost in excess of twenty-five thousand dollars shall be performed by contract as in this chapter provided."  (Emphasis supplied.)

            Reading these two sections together, it is clear that, as to projects of an estimated costnot in excess of $25,000, the commissioners have the option to have the work performed either by day labor or by contract; however, in the case of projects having an estimated cost in excess of $25,000, the commissioners have no discretion, but must order such work to be performed by contract awarded after competitive bidding under RCW 36.77.020 through 36.77.040.  Accord, letter opinion to the Honorable R. DeWitt Jones, Prosecuting Attorney, Clark County, dated March 29, 1947 [[1947-48 OAG 24a]], a copy of which is enclosed.

            Question (1):

            The first question at hand assumes the foregoing, but asks whether a construction project having an estimated cost of $25,000 or less, which the commissioners have elected to have performed by contract is also subject to the bidding requirements.

            At the outset, it must be noted that the basic statute requiring competitive bidding on work to be done by contract (RCW 36.77.020) is wholly unqualified in its requirements, stating that:

            ". . . the board shall, if it determines that the work shall be done by contract, advertise a call for bids upon such construction work . . ."  (Emphasis supplied.)

             [[Orig. Op. Page 4]]

            There is nothing in this statute which would exempt from the competitive bidding requirements any "contract" work regardless of its estimated cost.  Neither is there any express language in any part of chapter 36.77 RCW which would have this effect.  The only shadow of authority to exempt any such "contract" work is to be derived from the last sentence of RCW 36.77.060:  ". . . All construction work to be performed at a cost in excess of twenty-five thousand dollars shall be performed by contract as in this chapter provided."  The contention could be made that the explicit requirement of competitive bidding on contracts in excess of $25,000 implies an exemption from this requirement on contracts not in excess of $25,000.  However, considering the function of this last sentence in the context of the remaining portion of RCW 36.77.060, we do not think that such a construction would be warranted.

            For ease of reference, we again quote the pertinent language of RCW 36.77.060:

            "The board may cause any county road to be constructed or improved by day labor in an amount not to exceed twenty-five thousand dollars on any one project. . . . All construction work to be performed at a cost in excess of twenty-five thousand dollars shall be performed by contract as in this chapter provided."

            Given the fact that, under chapter 36.77 RCW, the commissioners have only two alternative methods of constructing or improving roads, i.e., by contract or by day labor, it is clear from the first sentence of RCW 36.77.060 that if a project estimated to cost in excess of $25,000 is contemplated, it perforce follows that such a project may only be accomplished by contract subject to competitive bidding.  This view of the first sentence of RCW 36.77.060 might arguably render the express statement of the last sentence of that section redundant and mere surplusage.  Well-established rules of statutory construction, however, compel us to avoid treating this sentence as surplusage if at all possible.  (Danley v. Cooper, 62 Wn.2d 179, 182, 381 P.2d 747 (1963); 2 Sutherland, Statutory  [[Orig. Op. Page 5]] Construction, § 4705 (3rd ed. Horack 1943).)1/   And we think that it is possible to give some, albeit limited, effect to the last sentence of RCW 36.77.060 by regarding it as an explicit statement by the legislature of that which is merely implicit in the first sentence.  This suggests to us a legislative motive to make clear beyond doubt or cavil its intent to require projects of an estimated cost in excess of $25,000 subject to competitive bidding.2/

             Having found this sentence to constitute an explicit statement of that which is elsewhere only implicit, and having attributed this to a legislative desire to express its will in unmistakable terms, we believe that we would not be justified in finding in this last sentence of RCW 36.77.060 any merely implicit exemption from the bid requirements of RCW 36.77.020 through 36.77.040 of contracts for projects amounting to less than $25,000.

            ". . . To do so would be to imply a legislative intention where none is expressed, to deny settled rules of construction, and to disregard the decisional law. . . ."  (Marble v. Clein, 55 Wn.2d 315, 318, 347 P.2d 830 (1959).)

            Had the legislature intended to permit contracts for road construction or improvement not in excess of $25,000 to be exempt from the bid requirements, it must be supposed that it would have followed the same pattern as was employed to require contracts in excess of that figure to be subject to competitive bidding, and done so in express terms rather than by mere implication.  (Marble v. Clein,supra.)

             [[Orig. Op. Page 6]]

            Accordingly, we find in RCW 36.77.060 no exception to the requirement of RCW 36.77.020 that ". . . work . . . done by contract . . ." be done only after competitive bidding regardless of the cost of the project and, therefore, answer your first question in the affirmative.

            Question (2):

            Implicit in our response to your first question is an affirmative answer to your second question.  RCW 36.77.060 is clear and unambiguous on this point:

            "The board may cause any county road to be constructed or improved by day labor in an amount not to exceed twenty-five thousand dollars on any one project. . . ."

            As we observed earlier in this opinion, this language, when read together with the provisions of RCW 36.77.020, gives the commissioners the option whether to proceed with road construction or improvement projects by either contract or day labor, so long as the cost of such project does not exceed $25,000.  Accordingly, an affirmative answer to your second question is reached most readily.

            Question (3):

            Your final question involves, in essence, a determination of the criterion to be employed in distinguishing "day labor" from "contract work" for purposes of chapter 36.77 RCW.  We believe that the test to be applied is that of whether the individuals hired by the county are "independent contractors" as that term is generally understood3/

             [[Orig. Op. Page 7]] (responsible to the county only for the satisfactory completion of the project, but retaining direct supervisory authority over the labor force employed); or whether they are, in effect, county employees ‑ with the county simply leasing the equipment and hiring the drivers and other laborers as its own employees.  In the former case, the work would be performed "by contract" and the provisions of RCW 36.77.020 would be applicable, requiring a call for competitive bids.  In the latter case, the county would merely be hiring persons to supplement its own regular work force, but reserving direct supervisory authority over them.  In this case, in our opinion, the persons so employed would be employed as "day laborers," and the county could proceed with the performance of such work without a call for bids so long as the total costs, including the use of the equipment and the hiring of the individuals as well as other project costs, do not exceed $25,000.

            We trust that this information will be of assistance to you.

Very truly yours,

SLADE GORTON
Attorney General

DONALD FOSS, JR.
Assistant Attorney General

                                                         ***   FOOTNOTES   ***

1/A rather exhaustive collection of cases in which statutory language was found to be surplusage may be found in 110-112 Van Wagenen Avenue Company v. Julian, 101 N.J. Super. 230, 244 A.2d 123 (1968).

2/Were it not possible to treat this sentence as having this limited effect, we would be obliged to regard it as surplusage, as it adds nothing to the meaning of the statute which is not already expressed in its first sentence.  See, note 1,supra.  Such a construction, of course, would not alter the affirmative answer which we give to your first question, but only the rationale for that answer.

3/See, Amann v. City of Tacoma, 170 Wash. 296, 312, 16 P.2d 601 (1932), quoting fromLarson v. American Bridge Co., 40 Wash. 224, 82 Pac. 294 (1905), as follows:

            "'The general test which determines the relation of independent contractor is that he shall exercise an independent employment, and represent his employer only as to the results of his work and not as to the means whereby it is to be accomplished.  The chief consideration is that the employer has no right of control as to the mode of doing the work; but a reservation by the employer of the right to supervise the work, for the purpose of merely determining whether it is being done in accordance with the contract, does not affect the independence of the relation.'"

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