PUBLIC WORKS AND IMPROVEMENTS—STATUTES—Applicability of Public Works Procurement and Prevailing Wage Laws

Whether a construction project qualifies as a "public work" and is subject to public works procurement and prevailing wage laws is a highly fact-specific inquiry. Relevant factors include whether the project receives substantial government funding, whether it has a public purpose, whether it is constructed on public land, whether a government entity maintains or eventually obtains ownership of the project, and whether the project requires the simultaneous use of public property.

March 9, 2026

Dear Prosecutor Brusic:

By letter previously acknowledged, you have requested our opinion on the following question, which we paraphrase as follows:

Is a construction project on leased public land that is funded entirely by a private entity a "public work" under RCW 39.04 and, therefore, subject to public works procurement and prevailing wage laws?

BRIEF ANSWER

Maybe. Whether a certain construction project qualifies as a "public work" is a highly fact-specific inquiry. A construction project funded entirely by a private entity is very likely a "public work" if the private entity receives substantial government funding for the project. Courts have also considered whether the project has a public purpose, ownership of the improvements made upon the public land revert to a government entity when the lease terminates, or the project requires the simultaneous use of public land or facilities, though no court has held that those characteristics are dispositive.

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FACTUAL BACKGROUND

Your question arises out of a proposed construction project at the Yakima County Fairgrounds, which Yakima County owns. See RCW 36.37.020. By way of background, "[c]ounties are authorized by statute to sponsor and hold county fairs." Woodrome v. Benton County, 56 Wn. App. 400, 404, 783 P.2d 1102 (1989). The county may purchase or lease property for the purposes of holding and maintaining its fairs. RCW 36.37.020. Relatedly, counties
may "acquire by gift, devise, purchase, condemnation and purchase, or otherwise . . . all kinds of personal property and own and hold the same[.]" Id. The county may also designate a nonprofit corporation as the exclusive agency to operate and manage the fair. RCW 36.37.040. The Legislature has declared county fairs "to be in the interest of public good and a strictly county purpose." RCW 36.37.010.

Yakima County designated the Central Washington Fair Association (CWFA), a nonprofit organization, to operate and manage its annual fair. The County entered into a lease agreement with the CWFA for the fairgrounds that ends in 2033. The lease agreement provides, in part, that all major alterations, additions, and improvements made by the CWFA to the County's fairgrounds will revert to and become the property of the County upon termination of the lease agreement.

The CWFA proposed to construct a sprint boat racecourse at the County's fairgrounds, where jet-propelled boats would race through a maze. The proposed racecourse would require construction of the maze, paid public viewing areas, and concrete pads to launch the boats. The CWFA intends to fund the proposed racecourse in its entirety, without the use of county funds. You are trying to determine if the construction of this project would be subject to public works procurement and prevailing wage laws.

ANALYSIS

As an initial matter, Attorney General Opinions answer broad legal questions and are not intended to resolve factual issues or specific disputes. Although your question arises in the context of a specific proposed construction project on certain county-owned property, our analysis is necessarily general. As we explain below, under the statutes and case law, any conclusion as to whether a particular construction project is a public work is highly fact-dependent. Accordingly, while we understand your desire for certainty, we cannot offer an opinion as to whether the CWFA's proposed construction project for the Yakima County Fairgrounds would be a public works project and therefore subject to public works procurement and prevailing wage laws. Although Attorney General Opinions are general, the industrial statistician of the Department of Labor and Industries may provide, upon request, a project-specific determination under RCW 39.12.015 about the application of prevailing wages. We provide the following general guidance that we hope is useful.

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Public works projects must generally comply with certain requirements, such as competitive bidding and payment of prevailing wages. RCW 39.04.010(5); RCW 39.12.020; see Op. Att'y Gen. 17, at 7-8 (1984). Under RCW 39.12.020, "hourly wages to be paid to laborers, workers, or mechanics, upon all public works . . . shall be not less than the prevailing rate of wage for an hour's work in the same trade or occupation in the locality within the state where such labor is performed." The "prevailing rate of wage" is determined by the Department of Labor and Industries' industrial statistician and is "the rate of hourly wage, usual benefits, and overtime paid in the locality . . . to the majority of workers . . . in the same trade or occupation." RCW 39.12.010(1), .015.

Whether a certain project is a "public work" is a legal question. See Supporters of Ctr., Inc. v. Moore, 119 Wn. App. 352, 356, 80 P.3d 618 (2003). RCW 39.04.010(5) defines a "public work" as "all work, construction, alteration, repair, or improvement other than ordinary maintenance, executed at the cost of the state or of any municipality, or which is by law a lien or charge on any property therein." See also WAC 296-127-010(7)(a) (defining a "public work"). In other words, a project is a "public work" if it: (1) is executed at the cost of a government entity; or (2) gives rise to a lien or charge on the property. City of Spokane v. Dep't of Lab. & Indus., 100 Wn. App. 805, 811-12, 998 P.2d 913 (2000); see RCW 39.04.010(4), (8); see also Drake v. Molvik & Olsen Elec., Inc., 107 Wn.2d 26, 28, 726 P.2d 1238 (1986) (providing that the statute "is so inclusive as to include every governmental body").

Because publicly owned property is not subject to lien, your question depends on what it means for a construction project to be executed at the cost of a government entity, and whether that can include projects funded entirely by private entities on leased public lands. See Op. Att'y Gen. 10, at 16 (2008). "There is no bright-line definition of when a project is executed at the cost of [a government entity]." Moore, 119 Wn. App. at 358. However, two cases provide helpful guidance in making this determination.

First, in City of Spokane v. Department of Labor & Industries, the Court of Appeals held that a project may qualify as a "public work" even if the government entity was not directly involved in the work performed and did not directly pay for the project. 100 Wn. App. at 814-15. There, a private company operated a city-owned waste facility. Id. at 807. Each year, the company shut down the facility for maintenance and did not pay prevailing wages for work performed during the shutdowns. Id. at 808-09. The city paid the company a flat fee for the waste it processed at the facility, and the company ultimately used the fee to pay for the expenses associated with the annual shutdowns. Id. at 808, 813.

The Court of Appeals held that the maintenance work completed during the annual shutdowns was a "public work" because it was executed at the cost of the city. Id. at 811-12. The court rejected the company's argument that a government entity must directly pay for a project or maintenance for it to be considered a "public work." See id. at 813-14. Instead, the court noted that the source of funding for a project is not determinative of whether it is executed at the cost of a government entity and determined that a project or maintenance is executed at the cost of a government entity when it is paid for with public funds. Id. at 812-13. The court noted that while the company had discretion to determine how it spent the city-paid flat fee, the fee fully funded

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the annual maintenance. Id. at 813. The court further reasoned that the company's discretion did not alter the fee's public origin as there was a direct, tangible relationship between the fee and the maintenance work. Id. at 813-14. The court also emphasized that: the city owned the waste facility; the city had directly contracted with the company to construct, operate, and maintain the facility; and operation of the facility benefited the public. Id. at 814-15.

Second, in Supporters of the Center, Inc. v. Moore, the Court of Appeals determined that because a project used substantial government funds, ownership of the project would eventually transfer to a government entity, and use of the project required use of an adjacent government-owned facility, the project was a "public work," requiring payment of prevailing wages. 119 Wn. App. at 361. In Moore, a nonprofit corporation raised money to construct a performing arts center in Wenatchee. Id. at 354. The funds raised included a legislative appropriation and a city payment of advance rent. Id. at 360. The nonprofit corporation and the city executed a 30-year lease for property on which the performing arts center would be built. Id. at 354-55. The property was immediately adjacent to a city-owned convention center. Id. at 355. The lease provided that the nonprofit corporation could extend the lease for up to 50 years and that the improved property would belong to the city upon termination of the lease. Id.

The Court of Appeals determined that the project clearly qualified as a "public work" because of the substantial government funding for the project-over 52 percent of the project's funding came from government entities. Id. at 360. The court also determined that other factors, independent of the substantial government funding, characterized the project as a "public work" due to the public nature of the project. Id. Specifically, the court noted that: ownership of the project would transfer to the city at the end of the lease term; use of the project required access and use of the adjoining city-owned convention center and its restrooms and parking lot, as well as other facilities; and to receive the legislative appropriation, the nonprofit corporation entered into a contract requiring it to not only build the performing arts center, but to also make improvements to the city-owned convention center. Id.

Reading City of Spokane and Moore together makes clear that whether a certain construction project qualifies as a "public work" is highly fact specific. However, the two cases provide some direction. First, a project is very likely a "public work" if it is substantially funded with government funds. It is unclear how large a proportion of funding is needed to be "substantial," but Moore reveals that where at least half of a project's funding is from government sources, there is substantial government funding for the project. Second, a project does not need to be paid directly by a government entity to be a public work. If the private entity obtains substantial funding for a project from government sources, such as a grant, loan, or legislative appropriation, the project is likely to be executed at the cost of a state or municipality and therefore be a public work.

Finally, case law suggests that a project may also be considered a "public work" if it possesses certain characteristics, though no court has yet held that those factors are dispositive in the absence of some government funding. Those characteristics include whether the project has a public purpose, whether the project is constructed on public land, whether a government entity maintains or eventually obtains ownership of the project, and whether the project requires

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the simultaneous use of public property. See Moore, 119 Wn. App. at 360; Glacier Nw., Inc. v. Dep't of Lab. & Indus., 32 Wn. App. 2d 189, 199, 555 P.3d 896 (2024) (providing that a project's connection to public land and services and the obligations laid out in the contractual terms of the project are additional criteria indicative of a public work). The greater the connection to public purpose, land, ownership, and government funding, the greater the likelihood that the project will be considered a public work, requiring the payment of prevailing wages and compliance with public works procurement laws.

We trust that the foregoing will be useful to you.

NICHOLAS W. BROWN

Attorney General

KRISTEN S. VALORE

Assistant Attorney General

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