Washington State

Office of the Attorney General

Attorney General

Bob Ferguson

AGO 1954 No. 235 -
Attorney General Don Eastvold


Within the limitations of the budget law, county commissioners of third class counties may authorize construction of public buildings by means other than awarding a contract on a competitive bid basis provided the public works statutes are followed.

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                                                                    April 8, 1954

Honorable Joe Chytil
State Representative
Twentieth District
Chehalis, Washington                                                                                             Cite as:  AGO 53-55 No. 235

Dear Sir:

            We have your letter of March 22, 1954, in which you advise that the board of county commissioners of Lewis county is constructing a machine shop, warehouse, and general maintenance building at Forest, without advertising for bids.  You state that the work is being done by employees of Lewis county and that it is not possible to ascertain the ultimate cost of the finished building.  You specifically ask for an outline of the public works laws and for our opinion on the amount of county road funds or general funds which may be used for such construction without calling for bids.

            In our opinion the board of commissioners of Lewis county may authorize such construction without letting a contract on a competitive bid basis, provided it complies with the statutes relating to public works.


            RCW 36.32.120 provides in part as follows:

            "The several boards of county commissioners shall:

             [[Orig. Op. Page 2]]

            "(1) Provide for the erection and repairing of courthouses, jails, and other necessary public buildings for the use of the county;"

            There is no doubt that the board of county commissioners has authority to order construction of this kind.  Your question concerns procedure.

            RCW 36.32.240 requires contracts on a competitive bid basis for all public works and purchase on a competitive basis of all supplies, material, and equipment.  This statute lists certain exceptions and only applies to class A and first class counties.  Lewis county is a third class county by virtue of its population.

            RCW 36.82.130 requires competitive bidding on all items of equipment costing in excess of five hundred dollars which are paid for by the county road fund. RCW 36.77.060 authorizes expenditures under twenty-five thousand dollars for construction of county roads by day labor, rather than contracts by competitive bids.  This provision is subject to a publication requirement.  RCW 36.77.070.  None of these statutes is applicable to the Lewis county project.

            In 1941 this office advised the Yakima county prosecuting attorney that Yakima county could construct a one‑hundred-thousand-dollar addition to the county jail by means other than contract if (1) the item was included in the budget, and (2) the public works statutes (now contained in chapter 39.04 RCW) were complied with.  We shall assume that the board of county commissioners has complied with the budget law.

            RCW 39.04.010 defines "municipality" as including every county.  "Public work" is defined to include "all work, construction, alteration, repair or improvement other than ordinary maintenance executed at the cost of the state or any municipality, * * *"

            "'Contract' means a contract in writing for the execution of public work for a fixed or determinable amount duly awarded after advertisement and competitive bid;"

            RCW 39.04.020 provides as follows:

            "Whenever the state or any municipality determines that any public work is necessary to be done it shall  [[Orig. Op. Page 3]] cause plans and specifications thereof and an estimate of the cost of such work to be made and filed in the office of the director, supervisor, commissioner, trustee, board, or agency having by law the authority to require such work to be done."

            RCW 39.04.030 provides in part:

            "If the state or municipality determines that it is necessary or advisable that such work shall be executed by any means or method other than by contract, and it shall appear by such estimate that the probable cost of executing the work will exceed the sum of twenty-five hundred dollars, then the state or municipality shall at least fifteen days before beginning work cause such estimate, together with description of the work, to be published at least once in a newspaper of general circulation in the county in which the work is to be done: * * *"

            Other sections of this chapter provide that the work must be executed according to the plans and specifications, provide for supplemental plans, prescribe the contents of the estimates and supplemental estimates.  RCW 39.04.040, 39.04.050, and 39.04.060.  Further sections require accounts and records to be kept and preserved, require certified copies of such accounts and records to be filed, together with the engineer's certificate to the effect that the work was executed in conformity with the plans and specifications.  RCW 39.04.080.  The record of the cost of executing the work and a general description of the work must be published. RCW 39.04.090.  Remaining sections of this chapter declared that these plans, specifications, estimates, accounts, records, and certificates are public records, RCW 39.04.100, and prescribe penalties for making false entries or false statements in certificates.  RCW 39.04.110.

            An examination of these statutes clearly manifests a legislative intent to authorize the county commissioners to construct county buildings by other means than by contract, as defined in RCW 39.04.010.

            We believe these statutes contemplate an arrangement whereby the county officials supervise the entire construction project.

             [[Orig. Op. Page 4]]

            In our opinion these statutes authorize the county commissioners to draw up plans and specifications to purchase the materials essential for such a building, to hire the labor required to get the job done, and to supervise the actual construction.  We find no statutory restrictions on the cost of public works which may be constructed in this manner by third class counties.  If the item is included in the budget, and the public works statutes followed, such procedure is specifically authorized by law.

Very truly yours,

Attorney General

Assistant Attorney General