IFB Template Backgrounder

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EXECUTIVE ORDER 18-03 WORKERS’ RIGHTS DESK AID

Executive Order 18-03 | Overview of EO 18-03 | POL-DES-EO 18-03 | EO 18-03 Training Webpage

1. Determine if your procurement is a competitive

purchase for goods or services.

1.a

Is this a direct buy, sole source, or public works, and

is it reasonably practicable to certify 18-03 eligibility?

2. Specify evaluation/award criteria, and include

the EO 18-03 solicitation clause.

3. Include the Contractor Certification form in

your solicitation.

4. Check the box in WEBS.

5. Determine the lowest responsive and

responsible bidder.

Is the bidder 18-03 eligible?

6. Put the 18-03

Contract Clause in

the contract.

1.b (optional)

Require the Vendor

complete the vendor

certification.

1.c

Keep records.

8. Keep complete records.

EO 18-03

Documini:

Worker’s

Rights

FAQs

7. Mark 18-03

eligibility in WEBS.

Other Links:

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OVERVIEW OF EXECUTIVE ORDER 18-03 & STATE PROCUREMENT LAW

Watch the 3 minute EO 18-03 Documini: Worker’s Rights or read below.

Executive Order 18-03 – Supporting Workers’ Rights to Effectively Address Workplace Violations (dated June 12, 2018)

directs covered state agencies, to the extent permissible under state and federal law, to seek to contract with persons and

firms who do NOT, as a condition of employment, require employees to agree to mandatory individual arbitration and/or

class or collective action waivers regarding employment disputes. EO 18-03 is effective immediately and applies to all

covered agencies (state executive and cabinet agencies).

Pursuant to Executive Order 18-03, Enterprise Services is charged with the responsibility to administer the EO and to

collaborate with necessary workgroups to establish best practices and consistent application of the EO statewide.

Accordingly, Enterprise Services collaborated with covered agencies to develop strategies and tools to implement the EO.

Regardless of whether the purchase or procurement is a noncompetitive direct buy purchase or a competitive

procurement, covered agencies need to be able to determine whether bidders and potential contractors are persons or

firms who utilize mandatory individual arbitration and/or class or collective action waivers. This will require potential

contractors or bidders to provide that information. Accordingly, a Contractor Certification for Executive Order 18-03

enables potential contractors or bidders to provide that information to the State/agency during a solicitation process.

Also, a Vendor Certification for Executive Order 18-03 does the same for noncompetitive purchases if reasonably

practicable.

STEP 1. DETERMINE IF YOUR PURCHASE IS A COMPETITIVE GOODS OR SERVICES PROCUREMENT

COMPETITIVE PROCUREMENTS

Competitive Procurements: Covered agencies can easily implement Executive Order 18-03 in competitive

procurements. The key is to identify relevant information from bidders. Agencies can identify the requisite

information, factor it into their procurement process, and, as appropriate, include relevant contractual

requirements. If your procurement is competitive, skip to Step 2.

Non-Competitive procurements (Steps 1.a – 1.c): As stated earlier, if a purchase is a noncompetitive direct buy

purchase, covered agencies need to be able to determine whether bidders and potential contractors are persons

or firms who utilize mandatory individual arbitration and/or class or collective action waivers if reasonably

practicable. DES provides a vendor certification for direct buy purchases provided for agencies to use at their

own discretion.

TYPE OF NON-COMPETITIVE PURCHASE

REQUIRED TO APPLY 18-

03, IF REASONABLY

PRACTICABLE?

DIRECT BUY PURCHASE

YES

SOLE SOURCE CONTRACTS

EMERGENCY CONTRACTS

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STEP 2. SPECIFY EVALUATION AND AWARD CRITERIA, AND INCLUDE THE CLAUSE IN YOUR SOLICITATION

 Include 18-03 as part of the evaluation and award criteria

 Include the 18-03 solicitation clause

 Include required Contractor Certification

The Following is an example of an evaluation:

SOLICITATION CLAUSE FOR EO 18-03

PROCUREMENT EVALUATION FOR EXECUTIVE ORDER 18-03 (FIRMS WITHOUT MANDATORY INDIVIDUAL ARBITRATION FOR

EMPLOYEES) (STEP XX). Pursuant to RCW 39.26.160(3) (best value criteria) and consistent with Executive Order 18-

03 – Supporting Workers’ Rights to Effectively Address Workplace Violations (dated June 12, 2018), [insert agency]

will evaluate bids for best value and provide a bid preference in the amount of [insert applicable percentage or

evaluation points] to any bidder who certifies, pursuant to the certification attached as Exhibit X – Contractor

Certification for Executive Order 18-03 – Workers’ Rights, that their firm does NOT require its employees, as a

condition of employment, to sign or agree to mandatory individual arbitration clauses or class or collective action

waiver.

Evaluation

MAXIMUM POINTS

Responsiveness

Pass/fail

Responsibility

Pass/fail

Capabilities and Qualifications

References

Small business status

Executive Order 18-03 Certification

Pricing in region(s) bid

Work history in region(s) bid

TOTAL AVAILABLE POINTS

165

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STEP 3: INCLUDE THE CONTRACTOR CERTIFICATION FORM IN YOUR SOLICITATION

The contractor certification template is an option. Covered agencies can modify the template to fit their mission and

contracting tools. Keep in mind, however, that there are requirements that inform the certification language to make it

an enforceable commitment.

USING THE CONTRACTOR CERTIFICATION TEMPLATE: INSTRUCTIONS

Using the template (last revised April 10, 2019), do the following:

 Intro Paragraph (italicized text)

 Insert the applicable agency name.

 Solicitation Number:

 Insert the applicable solicitation number.

 Return email address

 Insert the applicable return email address for the applicable procurement coordinator at the bottom of

the certification.

 Provide the Contractor Certification form to the Bidder to complete (the certification form must be included as

part of the solicitation). The Bidder must:

 Provide their full legal name – e.g., Sunshine Fulfillment LLC, a Delaware limited liability company.

 Mark one of the boxes.

o Note: If the bottom box is marked (i.e., the firm DOES have mandatory employee arbitration

clauses and/or class or collective action waivers), the Contractor would not be eligible for an

EO 18-03 bid preference.

 Sign the Certification.

 Print their name.

 Print their title.

 Print the City and State where signed (this is an element of the certification).

 Print the date of the certification.

 Return the completed Certification to the Procurement Coordinator via email at the email address

provided at the bottom of the certification.

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CONTRACTOR CERTIFICATION TEMPLATE FOR COMPETITIVE PURCHASES

CONTRACTOR CERTIFICATION

EXECUTIVE ORDER 18-03 – WORKERS’ RIGHTS

WASHINGTON STATE GOODS & SERVICES CONTRACTS

Pursuant to the Washington State Governor’s Executive Order 18-03 (dated June 12, 2018), the Washington State

Department of _______________ is seeking to contract with qualified entities and business owners who certify that

their employees are not, as a condition of employment, subject to mandatory individual arbitration clauses and class

or collective action waivers.

Solicitation No.:

__________________

I hereby certify, on behalf of the firm identified below, as follows (check one):

 NO MANDATORY INDIVIDUAL ARBITRATION CLAUSES AND CLASS OR COLLECTIVE ACTION WAIVERS FOR EMPLOYEES. This

firm does NOT require its employees, as a condition of employment, to sign or agree to mandatory

individual arbitration clauses or class or collective action waivers.

 MANDATORY INDIVIDUAL ARBITRATION CLAUSES AND CLASS OR COLLECTIVE ACTION WAIVERS FOR EMPLOYEES. This

firm requires its employees, as a condition of employment, to sign or agree to mandatory individual

arbitration clauses or class or collective action waivers.

I hereby certify, under penalty of perjury under the laws of the State of Washington, that the certifications herein are true

and correct and that I am authorized to make these certifications on behalf of the firm listed herein.

FIRM NAME: _____________________________________________________

Name of Contractor/Bidder – Print full legal entity name of firm

By: ______________________________

Signature of authorized person

Title: ______________________________

Title of person signing certificate

Date: ________________________________

___________________________________

Print Name of person making certifications for firm

Place: ________________________________

Print city and state where signed

Return Contractor Certification to Procurement Coordinator at:

[Agency email]

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VENDOR CERTIFICATION TEMPLATE FOR NON-COMPETITIVE OR DIRECT BUY PURCHASES

VENDOR CERTIFICATION

EXECUTIVE ORDER 18-03 – WORKERS’ RIGHTS

WASHINGTON STATE GOODS & SERVICES CONTRACTS

Pursuant to the Washington State Governor’s Executive Order 18-03 (dated June 12, 2018), the Washington State

Department of [insert Agency] is seeking to purchase from or contract with qualified entities and business owners

who certify that their employees are not, as a condition of employment, subject to mandatory individual arbitration

clauses and class or collective action waivers.

I hereby certify, on behalf of the firm identified below, as follows (check one):

 NO MANDATORY INDIVIDUAL ARBITRATION CLAUSES AND CLASS OR COLLECTIVE ACTION WAIVERS FOR EMPLOYEES. This firm

does NOT require its employees, as a condition of employment, to sign or agree to mandatory individual

arbitration clauses or class or collective action waivers.

 MANDATORY INDIVIDUAL ARBITRATION CLAUSES AND CLASS OR COLLECTIVE ACTION WAIVERS FOR EMPLOYEES. This firm

requires its employees, as a condition of employment, to sign or agree to mandatory individual arbitration

clauses or class or collective action waivers.

I HEREBY CERTIFY, UNDER PENALTY OF PERJURY UNDER THE LAWS OF THE STATE OF WASHINGTON, THAT THE CERTIFICATIONS HEREIN ARE TRUE

AND CORRECT AND THAT I AM AUTHORIZED TO MAKE THESE CERTIFICATIONS ON BEHALF OF THE FIRM LISTED HEREIN.

FIRM NAME: _____________________________________________________

Name of Vendor – Print full legal entity name of firm

By: ______________________________

Signature of authorized person

Title: ______________________________

Title of person signing certificate

Date: ________________________________

___________________________________

Print Name of person making certifications for firm

Place: ________________________________

Print city and state where signed

Return Vendor Certification to :

[insert Agency email]

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STEP 4: CHECK THE BOX IN WEBS

Updates to both the Manage Solicitations screen as well as the Solicitations Responses screen in WEBS to include

Executive Order 18-03 eligibility made in May 2019.

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STEP 5: DETERMINE THE LOWEST RESPONSIVE AND RESPONSIBLE BIDDER AND WHETHER OR NOT THE AWARDED BIDDER

IS 18-03 ELIGIBLE.

In determining the lowest responsive and responsible bidder, state agencies may consider best value criteria. See RCW

39.26.160(3). Accordingly, as part of the ‘best value criteria,’ agencies may define and specify in the Solicitation that firms

will be evaluated to determine whether the firm’s employees are required to agree to mandatory individual arbitration

and class or collective action waivers.

FREQUENTLY ASKED QUESTION: WHEN SHOULD I COLLECT THE CONTRACTOR CERTIFICATION?

When bids are due.

Both to maximize agency due diligence and to minimize opportunity costs, covered agencies should require

bidders (e.g., vendors/contractors) to provide the Contractor Certification as part of their bid.

The purpose of requiring the Contractor Certification as part of the bid rather than waiting until a contract is to

be awarded is that covered agencies’ options decrease significantly and costs increase significantly as the

procurement process moves forward. If a bidder is unable to provide the required Contractor Certification, both

the bidder and the procuring agency need to understand that fact (and its consequences) earlier; rather than later.

In addition, because the bidder may be evaluated – as part of a best value evaluation – on whether it requires it

employees, as a condition of employment, to sign or agree to mandatory individual arbitration clauses or class or

collective action waivers, the certification MUST be included as part of the bid submission.

FREQUENTLY ASKED QUESTION: WHAT HAPPENS IF A BIDDER MARKS ‘THE BOTTOM BOX’?

Firms are NOT deemed to be ‘nonresponsive’ if they submit a Contractor Certification in which they CANNOT

certify that, as a condition of employment, they do not require their employees to sign or agree to mandatory

individual arbitration clauses or class or collective action waivers.

Such firms, however, would be ineligible to align with that portion of a solicitation’s best value criteria to

distinguish vendors that implement this procurement priority as compared to firms that can certify that, as a

condition of employment, they do not require their employees to sign or agree to mandatory individual arbitration

clauses or class or collective action waivers. Such firms are eligible to be awarded the resulting contract pursuant

to the competitive solicitation.

Note: The applicable solicitation evaluation criteria (e.g., bid evaluation points or a percentage) must be set forth

in the Solicitation document. In addition, the bid evaluation for the competitive solicitation must follow the

process set forth in the Solicitation document.

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STEP 6: PUT THE 18-03 CONTRACT CLAUSE IN THE CONTRACT

 If appropriate, include contractor representation and warranty (as shown below)

 Include prohibition on contract assignment (as shown below)

SAMPLE CONTRACT CLAUSE: CONTRACTOR REPRESENTATION & WARRANTY REGARDING EO 18-03

1. CONTRACTOR REPRESENTATIONS AND WARRANTIES. Contractor makes each of the following representations and

warranties as of the effective date of this Contract and at the time any order is placed pursuant to this Contract.

If, at the time of any such order, Contractor cannot make such representations and warranties, Contractor shall

not process any orders and shall, within three (3) business days notify [insert agency name], in writing, of such

breach.

1.1. ...

1.2. EXECUTIVE ORDER 18-03 – WORKERS’ RIGHTS (MANDATORY INDIVIDUAL ARBITRATION). Contractor represents and

warrants, as previously certified in Contractor’s bid submission, that Contractor does NOT require its

employees, as a condition of employment, to sign or agree to mandatory individual arbitration clauses or

class or collective action waivers. Contractor further represents and warrants that, during the term of this

Contract, Contractor shall not, as a condition of employment, require its employees to sign or agree to

mandatory individual arbitration clauses or class or collective action waivers.

1.3. …

SAMPLE ASSIGNMENT PROHIBITION CLAUSE:

ASSIGNMENT. Contractor may not assign its rights under this Agreement without [Insert agency name] prior

written consent and [Insert agency name] may consider any attempted assignment without such consent to be

void; Provided, however, that, if Contractor provides written notice to [insert agency name] within thirty (30)

days, Contractor may assign its rights under this Agreement in full to any parent, subsidiary, or affiliate of

Contractor that controls or is controlled by or under common control with Contractor, is merged or consolidated

with Contractor, or purchases a majority or controlling interest in the ownership or assets of Contractor. Unless

otherwise agreed, Contractor guarantees prompt performance of all obligations under this Agreement

notwithstanding any prior assignment of its rights.

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STEP 7: MARK IT IN WEBS

Updates to both the Manage Solicitations screen as well as the Solicitations Responses screen in WEBS to include

Executive Order 18-03 eligibility made in May 2019.

STEP 8: KEEP GOOD RECORDS

Keep Complete Records in accordance with the Washington State Records Retention schedule.

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CONTACTS & RESOURCES

The following are useful additional resources:

 Washington State Department of Enterprise Services Webpage for EO Order 18-03

 Washington State Department of Enterprise Services, Procurement Policy Regarding Executive Order 18-03 –

Supporting Workers’ Rights to Effectively Address Workplace Violations (dated October 1, 2018)

 Washington State Department of Enterprise Services, EO Order 18-03 – State Procurement & Mandatory

Employee Arbitration Clauses & Class Action Waivers (dated August 2, 2018) [Overview training provided to

covered agencies]

 Covered Agencies - the EO applies to all state executive and small cabinet agencies:

 Executive Cabinet

 Small Agency Cabinet

 Executive Order 18-03 – Supporting Workers’ Rights to Effectively Address Workplace Violations (June 12, 2018)

 Epic Systems Corp. v. Lewis, 584 U.S. ___, 138 S. Ct. 1612 (May 21, 2018)

 AGO Opinion 1991 No. 21 (June 11, 1991)

This Desk Aid was made in collaboration with the following partners to whom much thanks is owed:

 Attorney General’s Office

 Enterprise Services

 Washington State Health Care Authority

 Washington State Department of Health

 Washington State Department of Revenue

 Washington State Training Advisory Group

 Washington State Department of Transportation

 Washington State Patrol

 Washington State DSHS

 Washington State Department of Natural Resources

 Washington State DCYF

 The Evergreen State College

Please contact Enterprise Services with revisions or suggestions for improvement.

 
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FAQS. 
 
 
FAQs TABLE OF CONTENTS 
 
 WHAT IS THE EFFECTIVE DATE OF EO 18-03?  
 WHAT IS A ‘MANDATORY INDIVIDUAL ARBITRATION CLAUSE’? 
 WHAT IS A ‘CLASS OR COLLECTIVE ACTION WAIVER’?   
 DOES EO 18-03 APPLY TO ME? 
 WHO IS TASKED WITH ADMINISTERING IMPLEMENTATION OF EO 18-03?  
 CAN STATE AGENCIES DO BUSINESS WITH A FIRM THAT REQUIRES THEIR EMPLOYEES, AS A CONDITION OF EMPLOYMENT, TO USE 
MANDATORY INDIVIDUAL ARBITRATION FOR WORKPLACE GRIEVANCES?   
 CAN STATE AGENCIES DO BUSINESS WITH A FIRM THAT REQUIRES THEIR EMPLOYEES, AS A CONDITION OF EMPLOYMENT, TO 
FORGO CLASS OR COLLECTIVE ACTION DISPUTE RESOLUTION FOR WORKPLACE GRIEVANCES? 
 DOES EO-18-03 APPLY TO COMPETITIVE PROCUREMENTS? 
 DOES EO-18-03 APPLY TO LEGACY CONTRACTS? 
DOES EO-18-03 APPLY TO MASTER CONTRACTS? 
DOES EO-18-03 APPLY TO NON-COMPETITIVE PROCUREMENTS? 
EXAMPLE WHEN IT MAY NOT BE REASONABLY PRACTICABLE TO APPLY 18-03 TO A DIRECT BUY 
EXAMPLE OF WHEN IT IS REASONABLY TO APPLY 18-03 TO A DIRECT BUY 
DOES EO-18-03 APPLY BEYOND GOODS & SERVICES?  
DOES EO-18-03 CHANGE THE PROCUREMENT CODE?   
WHAT IF A VENDOR IS A CRITICAL SUPPLIER, DOES EO-18-03 STILL APPLY? 
DOES EO-18-03 APPLY TO CONTRACT EXTENSIONS? 
DOES EO-18-03 APPLY TO SUBCONTRACTORS? 
HOW DO STATE AGENCIES OBTAIN LEGAL ADVICE ON IMPLEMENTING EO-18-03?  
WHERE CAN I FIND A COPY OF THE SUPREME COURT’S DECISION?  
WHAT DOES REASONABLY PRACTICABLE MEAN FOR DIRECT BUYS? 
WHAT ARE THE RAMIFICATIONS IF AN AGENCY DOESN’T IMPLEMENT 18-03 
WHAT DOES 18-03 MEAN FOR P CARD PURCHASES? 
WHAT IF I AM MAKING A  NEW PURCHASE ON A MASTER CONTRACT THAT WAS ESTABLISHED PRIOR TO JUNE 2018? 
 

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1. WHAT IS THE EFFECTIVE DATE OF EO 18-03?

The effective date of EO 18-03 is June 12, 2018.

2. WHAT IS A ‘MANDATORY INDIVIDUAL ARBITRATION CLAUSE’?

For purposes of EO 18-03, a ‘mandatory individual arbitration clause’ is a requirement, by an employer, to

arbitrate (rather than litigate) employment grievances. It is mandatory in the sense that it is a condition of

employment.

Such clauses can be found…

 In employment agreements

 In employee handbooks

 In employer policies

 Or even in an email or other communication delivered to employees

3. WHAT IS A ‘CLASS OR COLLECTIVE ACTION WAIVER’?

For purposes of EO 18-03, a ‘class or collective action waiver’ is a requirement, by an employer, that employees

individually arbitrate employment grievances. It precludes class actions or employees pursing workplace

grievances as a group.

Such clauses can be found

 In employment agreements

 In employee handbooks

 In employer policies

 Or even in an email or other communication delivered to employees

4. DOES 18-03 APPLY TO ME?

EO 18-03 applies to all state executive and small cabinet agencies.

 State Executive Agencies

 Small Cabinet Agencies

5. WHO IS TASKED WITH ADMINISTERING IMPLEMENTATION OF EO 18-03?

Enterprise Services is tasked with administering implementation of EO 18-03.

“To ensure operational success and consistent application of this Order across state agencies,

the Department of Enterprise Services (DES) shall administer implementation of this Order.”

See EO 18-03 at § 2

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6. CAN STATE AGENCIES DO BUSINESS WITH A FIRM THAT REQUIRES THEIR EMPLOYEES, AS A CONDITION OF EMPLOYMENT, TO USE

MANDATORY INDIVIDUAL ARBITRATION FOR WORKPLACE GRIEVANCES?

Yes. EO 18-03 creates an opportunity.

 EO 18-03 requires covered agencies to seek to purchase and procure from firms that do not have

mandatory individual arbitration clauses.

 EO 18-03 is similar to other Legislative and Executive procurement preferences regarding how the state

spends its money.

7. CAN STATE AGENCIES DO BUSINESS WITH A FIRM THAT REQUIRES THEIR EMPLOYEES, AS A CONDITION OF EMPLOYMENT, TO FORGO CLASS

OR COLLECTIVE ACTION DISPUTE RESOLUTION FOR WORKPLACE GRIEVANCES?

Yes. EO 18-03 creates an opportunity.

 EO 18-03 requires covered agencies to seek to purchase and procure from firms that do not have

mandatory individual arbitration clauses.

 EO 18-03 is similar to other Legislative and Executive procurement preferences regarding how the state

spends its money.

8. DOES EO-18-03 APPLY TO COMPETITIVE PROCUREMENTS?

Yes. EO-18-03 applies to competitive procurements for covered state agencies.

See FAQ 4 to understand which state agencies are covered state agencies for purposes of EO 18-03.

9. DOES EO-18-03 APPLY TO LEGACY CONTRACTS?

No. EO-18-03 does not apply to existing contracts. The EO is forward looking.

10. DOES EO-18-03 APPLY TO MASTER CONTRACTS?

Yes. EO-18-03 applies to any Master Contracts after June 12, 2018. EO 18-03 has been implemented in the

solicitation process for Master Contracts after this date.

11. DOES EO-18-03 APPLY TO NONCOMPETITIVE PROCUREMENTS?

‘Non-competitive procurements’ are identified in RCW 39.26.125. With the exception of ‘direct buy purchases

(see RCW 39.26.125(3)), EO 18-03 does not apply to non-competitive procurements such as emergency or sole

source procurements. EO 18-03 does, however, apply to direct buy purchases if reasonable practicable. See the

FAQs 12 and 13 for examples.

12. SOME OF OUR STAFF ARE REQUIRED TO MAKE SMALL AND UNUSUAL PURCHASES, SOMETIMES AT THE LAST MINUTE, SUCH AS

REFRESHMENTS FOR REMOTE LOCATION MEETINGS, OR A NERF GUN FOR A DEMONSTRATION FOR A CLASS. ARE WE REQUIRED TO CHECK

WITH HASBRO AND THE LOCAL GROCERY STORES TO ENSURE THAT THEY DON’T REQUIRE EMPLOYEES TO SIGN ARBITRATION CLAUSES?

This policy states that application of executive order 18-03 is expected for direct buy purchases when reasonably

practicable and up to the discretion of the agency. Acquiring a vendor certification from the vendors in the

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scenarios you provide is not likely to be reasonably practicable. However, just because it isn’t practicable in the

scenarios you provided, doesn’t mean that requiring a vendor certification for other direct buy purchases won’t

be practicable. DES has provided a sample vendor certification for you to customize and use at your own

discretion.

13. WHEN WOULD IT EVER BE REASONABLY PRACTICABLE TO ASK A VENDOR TO CERTIFY THEY DON’T HAVE THEIR EMPLOYEES SIGN

ARBITRATION AGREEMENTS IF IT ISN’T A COMPETITIVE PURCHASE?

An example of requesting the vendor complete a vendor certification during a direct buy or non-competitive purchase

could be as follows: If your agency needs to purchase customized lightweight jackets for all of the employees for a total

cost of $8,000, it may be reasonably practicable to request vendors certify if they do or don’t have their employees sign

arbitration clauses when submitting their cost estimations.

14. DOES EO-18-03 APPLY BEYOND GOODS & SERVICES?

Yes. EO 18-03 applies beyond purchases and procurements for goods and services. The EO implementation,

however, will be prioritized. The implementation prioritization begins with –

 Competitive Goods and services procurements; and

 Direct buy purchases, when reasonably practicable.

Covered agencies, if authorized by their statutory authority, can implement the EO more broadly.

15. DOES EO-18-03 CHANGE THE PROCUREMENT CODE?

No. EO 18-03 does not amend any RCW provisions.

16. WHAT IF A VENDOR IS A CRITICAL SUPPLIER, DOES EO-18-03 STILL APPLY?

Yes, but ...

 “To the extent permissible under state and federal law …”

 Legislature may have required certain vendors – e.g., ferry vessels must be built in Washington

EO 18-03, however, does NOT preclude state executive and small cabinet agencies from purchasing or

contracting with particular firms.

17. DOES EO-18-03 APPLY TO CONTRACT EXTENSIONS?

It depends on the contract. For contract renewals – No. Here, for example, you have a 6-year term, but

contract was set up to require year-by-year ‘renewal.’

For Contract extensions – possibly. It depends on the contract. If original contract term is over, then yes, EO 18-

03 does apply.

18. DOES EO-18-03 APPLY TO SUBCONTRACTORS?

It depends on what the contract states. Generally speaking, the EO will apply to the Contractor.

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19. HOW DO STATE AGENCIES OBTAIN LEGAL ADVICE ON IMPLEMENTING EO-18-03?

The AGO is coordinating legal advice regarding EO 18-03 through the AGO’s TPC Division. Start by asking your

assigned AAG for advice. Your AAG then will consult with TPC and then get back to you.

20. WHERE CAN I FIND A COPY OF THE SUPREME COURT’S DECISION?

The U.S. Supreme Court’s decision is available here: Epic Systems Corp. v. Lewis, 584 U.S. (May 21, 2018).

21. WHAT DOES “REASONABLY PRACTICABLE” MEAN FOR DIRECT BUYS?

In the case of direct buy purchases, “Reasonably practicable” means practicable unless the Agency can show

that there is a gross disproportion between the benefit of applying 18-03 and the cost, in time, trouble and

money, of requesting vendors certify whether or not they require employees sign arbitration/class action

clauses. See examples of when it may or may not be reasonably practicable to apply 18-03 to direct buy

purchases in FAQ # 12 and FAQ #13.

22. WHAT ARE THE RAMIFICATIONS IF AN AGENCY DOESN’T IMPLEMENT 18-03?

Executive order 18-03 is a directive from the Governor to state agencies communicating to those agencies what

the Governor wants the agency to accomplish. The EO does NOT have the force of law, but Agency heads serve

at the pleasure of the Governor.

23. WHAT DOES 18-03 MEAN FOR PURCHASING CARD PURCHASES?

Purchasing Card (P-card) purchases are no different than any other purchases when it comes to 18-03.

Regardless of the method of payment (p-card, purchase order etc…) 18-03 applies. See FAQ #8 – FAQ #14 for

more information about applying 18-03 to p-card purchases.

24. DO I NEED TO ASK THE VENDOR IF THEY MAKE THEIR EMPLOYEES SIGN ARBITRATION CLAUSES, IF I AM MAKING A NEW PURCHASE OR A

SECOND TIER PURCHASE ON A MASTER CONTRACT THAT WAS ESTABLISHED PRIOR TO JUNE 2018?

When using Master Contracts that were established before June 2018 for new purchases, there is no need to

request a contractor provide certification that they do not require employees to sign arbitration/class action

clauses as 18-03 is not required for legacy contracts. However, covered agencies can apply 18-03 within the

Master Contract at their own discretion. An example of this may be if there are several contractors to choose

from on a Master Contract, the Agency could choose to research whether or not each contractor on that

contract requires their employees to sign arbitration/class action clauses. The Agency could us their findings to

choose which contractor they use. Again, this is not required but up to the discretion of the Agency.