Home field advantage matters in sports, and it also matters in litigation. In litigation, many battles are fought over the location where a dispute is to be decided and who is tasked with deciding the outcome of the dispute.
In order to maintain their home field advantage, counties in Washington State have been including contract clauses in all of their public works contracts that require the contractor working on the project to consent to having the dispute resolved in the same county that is issuing the contract. This presents a problem for public works contractors because the contractor will be required to have the dispute resolved by a county superior court judge who receives his or her paycheck from the same county that the contractor is suing. The opposing attorney is likely to be a deputy prosecuting attorney who also receives his or her paycheck from the same county that the contractor is suing.
There is already a statute in place that protects plaintiffs who file lawsuits against counties. That statute, RCW 36.01.050, provides that any person or entity commencing a lawsuit against a county may file the lawsuit in the county itself or in either of the two nearest judicial districts (which are often the two nearest counties). For example, a party suing King County could sue King County in either Snohomish or Pierce County under RCW 36.01.050. This statute was initially enacted over 100 years ago in Washington.
However, Washington counties, recognizing an advantage in public works contracting, have been including venue clauses in their contracts that require contractors to waive their rights under RCW 36.01.050 as a condition to getting the contract. Contractors do not have an ability to negotiate these venue clauses given the nature of public works contracting where the lowest bidder gets the contract and the contract terms are non-negotiable. These county venue clauses frustrate the purpose of RCW 36.01.050.
The Washington Construction Industry Council, whose twelve-member organizations represent over 11,000 companies employing the vast majority of Washington’s construction industry, and the National Utility Contractors of Washington have endorsed House Bill 1601 that would correct the actions by Washington counties and preserve contractors’ rights under RCW 36.01.050. The proposal provides that any venue clause in a county public works contract that requires the lawsuit to be commenced in the superior court of the county that is issuing the contract is “against public policy and the provision is void and unenforceable.” As of the date of this blog entry, House Bill 1601 passed unanimously from the House Judiciary Committee and is currently pending before the House Rules Committee.
If you are interested in supporting the Bill, please contact Brett Hill at (206) 515-2233 or firstname.lastname@example.org.