Washington Court Holds Subcontractor Has No Right Of Action Under Subcontractor Listing Statute

McCandlish Electric, Inc. v. Will Construction Co.
No. 18935-0-III, 2001 Wash. App. LEXIS 1364 (June 28, 2001)

Will Construction Co. (“Will”) was awarded a contract from the City of Leavenworth for renovations to a wastewater treatment plant. In its successful bid, Will had used a bid from McCandlish Electric, Inc. (“McCandlish”) submitted for the electrical subcontract. Will also listed McCandlish, pursuant to contract, as the electrical subcontractor in its bid submission to the City.

Upon learning that it’s bid was significantly lower than the next lowest bid, Will equivocated about whether it was going to accept the contract with the City and asked McCandlish if it could reduce any costs from the electrical bid. McCandlish responded by making some adjustments.

Will accepted the City contract. After the contract was awarded, however, Will asked the City to allow it to hire a different electrical subcontractor. After several denials and a threat of suit from the substitute subcontractor, the City agreed, and Will hired a substitute electrical subcontractor.

McCandlish then filed suit against Will for damages claiming a cause of action under Washington’s subcontractor listing statute. The statute reads:
Every invitation . . . shall require each bidder to submit as part of the bid, or within one hour after the published bid submittal time, the names of the subcontractors . . . with whom the bidder, if awarded [*3] the contract, will subcontract for performance of the work designated on the list . . . .
Wash. Rev. Code §39.30.060 (1995). At trial, Will’s motion to dismiss was granted at the close of McCandlish’s case. McCandlish appealed.

Although the Court of Appeals criticized Will’s conduct as unethical “bid shopping,” it nevertheless affirmed the lower court’s dismissal. The court recognized that the statute implies that prime contractors will award subcontracts to those subcontractors listed pursuant to the statute. The statute, however, does not “definitively state that a prime contractor may not, under any circumstances, substitute another subcontractor for the listed subcontractor.” Moreover, the statute does not provide for a cause of action for a subcontractor. Rather, as the court noted, the subcontractor listing statute was enacted to standardize and regulate the bidding process. Therefore, despite its disapproval of Will’s “bid shopping”, the court affirmed the dismissal of McCandlish’s suit.

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