AGLO 1971 No. 86 - Jun 23 1971
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June 23, 1971
Honorable Herbert H. Davis
1112 Meade Avenue
Prosser, Washington 99350 Cite as: AGLO 1971 No. 86 (not official)
By letter previously acknowledged you have requested the advice of this office on two questions relating to the contractor's registration act, chapter 18.27 RCW. We have paraphrased your questions as follows:
(1) May a "specialty contractor," who is licensed as such with the state under the provisions of the contractor's registration act submit a bid for a general contract which will require him to perform or use more than two unrelated building trades or crafts?
(2) May a county enter into such a general contract with a contractor who, at the time of bidding, was licensed only as a "specialty contractor" but who, prior to the execution of the contract, has posted the additional bond required of a "general contractor" and thereby has become registered as such?
We answer both of these questions in the affirmative.
RCW 18.27.010, in defining the term "contractor" for the purposes of the contractor's registration act, breaks this term down into two separate categories; "general contractors" and "specialty contractors." A general contractor is defined as a "contractor whose business operations require the use of more than two unrelated building trades or crafts whose work the contractor shall superintend or do in whole or in part," while a specialty contractor is defined as "a contractor whose operations as such do not fall within the foregoing definition of 'general contractor.'"
However, the only distinction between these two categories of contractors, insofar as registration requirements are concerned, is set forth in RCW 18.27.040. This [[Orig. Op. Page 2]] statute requires a general contractor to file a surety bond in the amount of $2,000, while a specialty contractor is only required to file a surety bond in the amount of $1,000. The requirements for posting proof of insurance and the fee requirements are the same for each of these two categories. See, RCW 18.27.050 and 18.27.070.
There are a number of sections of the contractor's registration act which impose sanctions against persons who do not comply with the act's provisions. Thus, RCW 18.27.080 provides that registration is a prerequisite to a suit for the collection of compensation by a contractor;1/ and RCW 18.27.110 prohibits any city, town or county from issuing a building permit to an unregistered contractor. In addition, a separate statute, RCW 39.06.010 (discussed below in connection with your second question) prohibits any state agencies or political subdivisions from executing contracts with unregistered contractors. However, the only statute which would purport to affect the ability of a contractor to bid is RCW 18.27.020, which reads as follows:
"It shall be unlawful for any person to submit any bid or do any work as a contractor until such person shall have been issued a certificate of registration by the state department of licenses. A partnership or joint venture shall be deemed registered if any one of the general partners or venturers whose name appears in the name under which the partnership or venture does business shall be registered. A violation of this section shall be a misdemeanor."
Of course, as a criminal statute this provision must be strictly construed, and not extended beyond its plain terms by construction or implication. Marble v. Clein, 55 Wn.2d 315, 347 P.2d 830 (1959); and State v. Youngbluth, 60 Wash. 383, 111 Pac. 240 (1910). Thus, while it might be argued that there is implicit in the term "certificate of registration" as used in this statute an inclusion of the distinction above noted between a general and a specialty contractor, this implication cannot be drawn in view of the statute's criminal sanctions.
[[Orig. Op. Page 3]]
Simply stated, RCW 18.27.020 merely prohibits those persons who have no certificate of registration at all from submitting a bid or doing any work as a contractor. However, a "specialty contractor" does, of course, have a certificate of registration; and hence, he would not come within the prohibitions contained in the statute. Therefore, our answer to your first question is in the affirmative. A specialty contractor, who has been issued a certificate of registration under chapter 18.27 RCW, is not prohibited from submitting a bid on a contract which will require him to perform or use two or more unrelated building trades or crafts. Accord, the reasoning of Andrews Fixture Co. v. Olin, 2 Wn.App. Dec. 744 [[2 Wn.App. 744]], 472 P.2d 420 (1970), holding that a contractor's full compliance with the specialty contractor's requirements of the contractor's registration act constituted substantial compliance with the general contractor's registration requirements for the purpose of determining his ability to sue for enforcement of the contract under RCW 18.27.080, supra.
For a better understanding of your second question, a short recitation of the facts which apparently gave rise to it would appear to be appropriate. You have indicated that a person whose registration permitted him only to perform the services of a "specialty contractor" was the low bidder on a contract being let by your county ‑ which contract would require the bidder awarded the contract to perform as a "general contractor." The county, upon opening the bids, determined to award the contract to this individual but it was then brought to the attention of all concerned that this low bidder was not registered as a general contractor, but only as a specialty contractor. Thereupon, this bidder immediately posted the additional bond necessary to obtain registration as a general contractor, and henceforth was registered as such.
The governing statute with respect to your question is RCW 39.06.010, which reads as follows:
"No agency of the state or any of its political subdivisions shall execute a contract with any contractor who is not registered or licensed as may be required by the laws of this state: Provided, That [[Orig. Op. Page 4]] this requirement shall not apply to contractors on highway projects who have been prequalified as required by RCW 47.28.070, with the highway department to perform highway construction, reconstruction or maintenance."
As we read it, the limitation which is imposed upon a county (or other political subdivision or state agency) by this statute is a limitation upon the execution of the contract. The term "execute" when used to describe the making of a contract includes the performance of all acts necessary to render it complete as such. See, Black's Law Dictionary, 4th Ed.; cf., Washington Finance Corporation v. Glass, 74 Wash. 653, 134 Pac. 480 (1913). Assuming then, as your question does, that something remained to be done in connection with the contract (i.e., formal signatures, posting of performance bonds, etc.) as of the time that the low bidder posted the additional bond required of a general contractor and thereby qualified himself as such, it seems apparent to us that he was properly qualified to perform the services contemplated by the contract at the time it was actually "executed." Therefore, it would be our opinion that the contract in question was validly executed by the county insofar as the limitation contained in RCW 39.06.010, supra, is concerned.
We trust that the foregoing will be of some assistance to you.
Very truly yours,
FOR THE ATTORNEY GENERAL
Richard A. Mattsen
Assistant Attorney General
*** FOOTNOTES ***
1/See the recent case of Vedder v. Spellman, 78 W.D.2d 861 [[78 Wn.2d 834]](1971), for an application of this provision.