COST OF MATERIALS AS FACTOR IN DETERMINING PROJECT COST UNDER RCW 36.77.060(1)

[[Orig. Op. Page 1]]

COUNTIES ‑- ROADS ‑- CONTRACTS ‑- COST OF MATERIALS AS FACTOR IN DETERMINING PROJECT COST UNDER RCW 36.77.060

In determining whether a particular county road construction or improvement project may be accomplished by day labor under RCW 36.77.060 (in a case where the construction or improvement is not the installation of electrical control devices or the like) prior to the effective date of the repeal thereof on January 1, 1981, the costs of related construction materials need not be taken into consideration irrespective of (a) whether the construction materials were purchased in connection with the particular project rather than being acquired as a part of a general inventory or (b) whether those construction materials were purchased by competitive bidding or not.

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August 29, 1980

 Honorable Ernest Geissler, Director
County Road Administration Board
6730 Martin Way N.E.
Olympia, Washington 98504

Cite as:  AGLO 1980 No. 26

 Dear Sir:

            By letter previously acknowledged you requested our opinion on the two questions which we paraphrase as follows:

            (1) In determining whether a particular county road construction or improvement project may be accomplished by day labor under RCW 36.77.060 (in a case where the construction or improvement is not the installation of electrical control devices or the like) must the costs of related construction materials be taken into consideration?

            (2) If question (1) is answered in the affirmative, would it make any difference (a) whether the construction materials were purchased in connection with the particular project rather than being acquired as part  [[Orig. Op. Page 2]] of a general inventory or (b) whether those construction materials were purchased by competitive bidding or not?

            We answer question (1) in the negative, thereby rendering it unnecessary to respond to question (2).

ANALYSIS

            Chapter 36.77 RCW (originally enacted as chapter 187, Laws of 1937) sets forth the procedures to be followed by a county in the construction or improvement of roads under its jurisdiction.  Your questions involve the interpretation of a section of this chapter, RCW 36.77.060, which provides as follows:

            "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:  Provided, That when the construction or improvement is the installation of electrical traffic control devices, highway illumination equipment, electrical equipment, wires, or equipment to convey electrical current, then such amount shall not exceed ten thousand dollars for any one project, including labor, equipment, and materials.  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:  Provided, That when the construction work is the installation of electrical traffic control devices, highway illumination equipment, electrical equipment, wires, or equipment to convey electrical current, in an amount exceeding ten thousand dollars for any one project, such work shall be performed by contract as in this chapter provided."1/

[[Orig. Op. Page 3]]

This statute allows counties to perform certain construction work by "day labor" instead of by contract.  However, the option of day labor construction is limited to projects in which such construction work is performed at a cost of less than $25,000.  Your basic question is whether the cost of materials used in such construction work is to be included in determining compliance with that $25,000 day labor limit.  This issue, in turn, involves the question of what may be said to constitute a "project."

            We begin by noting that there are certain characteristics of a "project" which are clear from the statute, interpretive case law and prior opinions of this office.  First, a project must be complete.  That is, it cannot be split into parts for the purpose of subverting the $25,000 limit on day labor construction.  See Ronken v. Snohomish County, 89 Wn.2d 304, 572 P.2d 1 (1977); Fonder v. South Sioux Falls, 76 S.D. 31, 71 NW.2d 618, 53 A.L.R.2d 493 (1955); Horravin Paving Company v. Krestin, 221 Iowa 1236, 262 NW 480 (1935); Miller v. McKinnon, 20 Cal.2d 83, 124 P.2d 34 (1942); and Brown v. Bozeman, 138 Cal.App. 133, 32 P.2d 168 (1934): also, 10 McQuillin, Municipal Corporations, Section 29.33.

            Nor can a project be divided in such a way that, for example, the first $25,000 of construction work is performed by day labor and the remainder is completed by contract.  Accord, our letter opinion of July 25, 1961, to the Prosecuting Attorney for Stevens County (copy enclosed) in which we concluded that RCW 36.77.060, supra, does not permit a county "to build a bridge by constructing the approaches, beams and deck thereof through the employment of day labor and then completing the construction of such bridge by means of contract . . .," where the total cost of the bridge would be between $35,999 and $40,000.

            In posing your questions you asked us to assume that the construction materials involved were purchased by competitive bidding‑-in determining whether those materials are to be included in the cost of a project.  We conclude, however, that such materials are not to be included in the project cost, irrespective of whether these materials were purchased as part of a general inventory or for use in the specific project, and irrespective of whether they were purchased by competitive bidding.

            First, it is a general principle of statutory interpretation that, absent a special definition, words of a statute must be accorded their usual and ordinary meaning.  Pacific First Federal Savings and Loans Association v. State, 92 Wn.2d 402, 598 P.2d 387 (1979).  Here, the usual and  [[Orig. Op. Page 4]] ordinary meaning of the words contained in RCW 36.77.060 indicates a legislative intent to exclude the cost of materials when determining whether or not a project has exceeded the day labor limit.  The first sentence of the statute identifies the activities which make up a project and provides that the cost of day labor may not exceed $25,000.  Those activities are construction and improvement.  There is no indication that the maximum cost of day labor was intended to include the purchase of materials.  The third sentence of the statute then further indicates that it deals only with "all construction work" not "all costs of construction" or "all construction work" and "purchase of materials."  There is thus nothing in the language of the statute which suggests that the costs of construction are to be distinguished from the costs of the day labor used in performing the construction work.

            We further note that RCW 36.77.070, a companion statute concerning the publication of information on day labor projects, requires the publication of ". . . an accurate statement of the true and complete cost of performing such construction by day labor."  It is clear that the purpose of such publication is to compare the cost of day labor with the cost that would be incurred by contracting with private contractors.  Again, the statutory intent appears to be to limit the "cost of performing such construction by day labor," not to limit the cost of materials assembled by day labor.

            Thus, the language of the day labor statutes themselves indicate that the "thing" which is prevented by RCW 36.77.060 from exceeding $25,000 is not the total cost of a project plus its constituent materials; but rather, it is the total cost of the "construction work" comprising the project.  The concept of a project as consisting of "construction work" rather than "construction work plus materials" is a concept which inheres in the usual and ordinary meaning of the language of the statute itself.

            In addition, when the language used by the legislature in RCW 36.77.060 is laid against the 1977 and 1980 amendments thereto an inference may be drawn that including "materials" as part of the cost of a "construction project" is so unusual as to require a specific legislative statement of such inclusion.

            First, the 1977 amendatory proviso to RCW 36.77.060, which set a $10,000 limit for day labor electrical projects, reads as follows:

[[Orig. Op. Page 5]]

". . . That when the construction or improvement is the installation of electrical traffic control devices, highway illumination equipment, electrical equipment, wires, or equipment to convey electrical current, then such amount shall not exceed ten thousand dollars for any one project, including labor, equipment, and materials.  . . ."  (Emphasis added.)

            If construction materials were already to be included in computing the day labor limit for non-electrical projects, there would have been no need for the legislature specifically to have included them in computing the day labor limit for electrical projects.  Thus, the addition of this specific inclusionary language must be taken as a legislative construction of a prior text of the statute as not otherwise including materials as a part of a "project."  See State v. Clausen, 63 Wash. 535, 116 Pac. 7 (1911).  Otherwise, the "equipment and materials" language added by the legislature in 1977 would be superfluous, contrary to the principle that statutes should be interpreted in order to make no portion of them superfluous.  Gross v. Lynnwood, 90 Wn.2d 395, 583 P.2d 1197 (1978).

            Secondly, as above stated, in chapter 40, Laws of 1980, the legislature, (effective January 1, 1981) repealed the existing version of RCW 36.77.060, supra, and replaced it with a new section which similarly inserted inclusionary words relating to labor, equipment, and materials in a section of the new statute dealing with general (as opposed to electrical) construction work in counties with annual road construction budgets of less than $500,000.  This action of the legislature must be presumed to evidence an intent to change the provisions or inclusions of the existing statute.  Otherwise, the language change in the 1980 enactment would be without purpose or meaning, in violation of the rule of Gross v. Lynnwood, supra.

            Finally, assuming an ambiguity as the meaning of the word "project" in the statute, the construction placed upon it by the administrative agency charged with its administration should be given great weight in determining legislative intent.  See Hama Hama Company v. Shorelines Hearings Board, 85 Wn.2d 441, 536 P.2d 157 (1975).  In this context, it is relevant that the regulations of the County Road Administration Board (which is the agency so charged) define "project" as:

[[Orig. Op. Page 6]]

". . . any combination of construction activities whose completion will result in a facility with independent utility[.]" (WAC 136-18-020(11)).  (Emphasis added.)

            It is further relevant that subsection 13 of WAC 136-18-070 defines "day labor county road project" as:

            ". . . a county road project having an estimated construction cost less than the statutory day labor limit, . . ."  (Emphasis added.)

            Thus, this administrative interpretation also supports the conclusion that a project encompasses "construction activities" and not the purchase of materials and supplies.

            For the reasons set forth above, we thus answer your first question in the negative and therefore find it unnecessary to respond to your second question.  Prior to January 1, 1981, and regardless of whether they were purchased for a specific non-electrical project, or whether they were purchased by competitive bidding, construction materials may be assembled (in a case where the construction or improvement is not the installation of electrical control devices or the like) by county day labor forces so long as the costs of construction work on the project, exclusive of the cost of the materials, are not in excess of $25,000.

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

Very truly yours,

SLADE GORTON
Attorney General

ROBERT M. McINTOSH
Assistant Attorney General

***   FOOTNOTES   ***

1/We note that this statute was repealed by § 2, chapter 40, Laws of 1980, effective January 1, 1981, and was replaced by § 1 of that act.  We do not here purport to construe that new law, and thus this opinion (pursuant to your request) is limited to cases coming under the existing statute prior to the effective date of its repeal.