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To be awarded a public contract in Oregon or Washington, a bidder generally must fulfill two requirements. The bidder must submit a responsive bid and be responsible for it. A bid is responsive if it complies with the terms of the solicitations, while a bidder is responsible if it has the capability to satisfactorily perform the solicited work. Public contracting law in both Oregon and Washington imposes basic standards of responsibility that are used in most public procurements. These standards generally require each bidder to satisfy basic financial, experience, and integrity requirements.

Contracting entities, ranging from state agencies and municipalities to special districts like ports, often use supplemental bidder responsibility criteria in public procurements to ensure that bidders are capable of satisfactorily performing the solicited work under unique project or other local considerations. Supplemental bidder responsibility criteria often include completing a specific number of similar scope and dollar volume projects within a set time frame. Such criteria also often include various requirements: the bidder has no delinquent taxes, no federal debarment, and no excessive claims against retainage and bonds.

Like many industries, construction is not immune to health and safety incidents. Although the construction industry is widely credited for improving safety by prioritizing safety training and culture, and providing employees with protective safety gear, incidents still occur. In both Oregon and Washington, state occupational health and safety agencies continue to inspect sites as well as cite and penalize various contractors for violating state and federal law.

In recent years, a number of these workplace safety incidents have been publicized. In apparent response, a growing number of local municipalities and special districts have considered and even implemented supplemental bidder responsibility criteria relating to health and safety violations. As a way of example, a Mukilteo-based contractor was cited (and eventually penalized) for various health and safety violations in 2024. Later that year, the city of Mukilteo implemented supplemental bidder responsibility criteria relating to health and safety for a procurement estimated to cost between $350,000 and $400,000. Those limited criteria provided that the 鈥渂idder shall not have had a project construction site shut down due to a safety violation鈥� from the Washington State Department of Labor and Industries (L&I) or 鈥渁nalogous agency with jurisdiction.鈥� Notably, these criteria apply 鈥渞egardless of whether such willful and/or serious safety violations have been abated or not.鈥�

In a more recent example, in June 2025, the city of Ridgefield implemented more substantial supplemental bidder responsibility criteria relating to health and safety for procurements equal to or exceeding $500,000. Those health and safety criteria provide that 鈥渢he bidder shall not have any serious or willful health or safety citations, violations, or penalties鈥� by either L&I or the Oregon Bureau of Labor and Industries (BOLI) for the prior three-year period, absent 鈥渆xtenuating circumstances.鈥� Those criteria separately define the term 鈥渟erious health or safety citations, violations, or penalties鈥� to mean 鈥渨hen there is a substantial probability that death or serious physical harm could result鈥� from a workplace condition or practices. Any apparent successful bidder on a qualifying procurement is required to 鈥渟ubmit a list鈥� of any 鈥渟erious or willful health or safety violations鈥� within two days of notification.

However well-intended, supplemental bidder responsibility criteria that narrowly focus on health and safety citations, violations, or penalties are likely to have unintended consequences and may even undermine the protection of health and safety.

Context matters

Contractors come in all shapes and sizes. A large contractor may be, as a factual matter, much safer than a small contractor even though it has a safety citation, violation, or penalty that would render it not responsible under the examples of supplemental bidder responsibility criteria noted above. This is why owners and contractors often rely on more objective metrics such as the Total Recordable Incident Rate (TRIR). The TRIR is calculated by using a formula that essentially divides the number of recordable health and safety incidents by the total hours worked by the contractor鈥檚 employees. Unlike criteria based merely on whether any citation, violation or penalty has occurred, TRIR provides a more realistic metric of safety based on how each contractor performed over time that also allows for easy comparison among contractors.

Law and enforcement differences

Occupational health and safety laws and enforcement efforts differ from state to state. Whereas Oregon and Washington have robust state-specific laws and state agencies that strictly enforce health and safety laws, other states do not. For example, Idaho does not have a state agency that enforces occupational health and safety laws, and as a result, relies on enforcement by the Occupational Safety and Health Administration (OSHA). OSHA, however, is widely considered severely understaffed. These differences in law and enforcement make comparisons of citations, violations, or penalties across jurisdictions less meaningful and potentially misleading.

Bid protests

Contractors can challenge supplemental bidder responsibility criteria under state contracting law, which can delay procurement and impose additional costs. To the extent that a contracting entity intends to regard health and safety citations, violations, and penalties differently based on where they occur, the contracting entity should be prepared to defend such different treatment.

To truly promote health and safety, contracting entities such as municipalities and special districts should consider meaningful health and safety metrics such as contractor TRIRs and contractor safety plans and not simply focus on the presence of health and safety citations, violations or penalties. Contractors should also be proactive in demonstrating their record of safety to contracting entities and familiarize themselves with changes to supplemental bidder responsibility criteria so they do not inadvertently lose the opportunity to successfully bid on such public work.

Matt Berry is a Schwabe, Williamson & Wyatt shareholder. Contact him at 503-796-2085 or [email protected].

Elizabeth Graves is a Schwabe, Williamson & Wyatt associate. Contact her at 503-796-2482 or [email protected].

This column is intended to provide readers with general information and not legal advice. Consult professional counsel for help regarding specific situations.

The opinions, beliefs and viewpoints expressed in the preceding commentary are those of the authors and do not necessarily reflect the opinions, beliefs and viewpoints of the Daily Journal of Commerce or its editors. Neither author nor the 91视频 guarantees the accuracy or completeness of any information published herein.