February 16, 2021 by Flannary Collins
Local governments have numerous contracting options available for entering into non-public works contracts with private companies and other public agencies. This blog explores which options can be used under which circumstances.
Personal Service Contracts
Personal service contracts can be used by all local government agencies for a variety of work, such as contract prosecution services, working with a consultant to draft development code regulations, or using a local auto repair shop to maintain an agency’s vehicle fleet. By and large, local governments have no statutory requirements for personal service contracts (although port districts and public facilities districts do have some requirements, which are detailed on our Personal Services Contracts webpage). While not required, agencies should adopt guidelines for contracting for personal services, including delegating signature authority, and identifying when RFPs or RFQs will be solicited. Our Personal Services Contracts webpage explores this in more detail.
Often, local government agencies will want to contract with one another either to jointly provide a governmental service or to have one agency provide the service on behalf of the other. Agencies will enter into interlocal agreements (hereafter “interlocals”) to accomplish this cooperative undertaking. The idea behind interlocals is that they can make government as a whole more efficient because agencies can avoid duplication of service. So long as the service is within the power of both government agencies, they can contract via interlocals to accomplish the service jointly. Common interlocals include those for animal control, fire or law enforcement services, or parks and recreation needs.
If the service being offered is not an exclusive government service — such as City B offering to service City A’s vehicle fleet — an interlocal is not required. Since vehicle maintenance is a service City A could receive from a private party, a service contract between City A and City B is the more appropriate contracting tool.
Interlocals are based on a specific state law, the Interlocal Cooperation Act, Chapter 39.34 RCW, and require inclusion of the following terms:
- Duration of agreement.
- Purpose of cooperative undertaking.
- Type and description of separate entity created by the interlocal, if any.
- If no separate entity is created, identification of the administrator or joint board responsible for administration and for managing any property acquired.
- Identification of financial support for the interlocal, including establishment and maintenance of a budget; and
- Termination of the agreement, and how to dispose of any property upon termination.
Interlocals must be approved by the legislative body of each agency and filed with the county auditor or posted on participating agencies’ websites or other electronically retrievable public source.
Mutual Aid Agreements
Mutual aid agreements are frequently used by local governments in the emergency management context where they are specifically identified in RCW 38.52.091 as a tool for public agencies to provide “reciprocal emergency management aid and assistance in case of disaster too great to be dealt with unassisted.”
Memorandums of Understanding or Agreement
Parties often use memorandums of understanding (MOU) or memorandums of agreement (MOA) to identify their intent or to broadly outline an agreement that will eventually lead to a more formal agreement. MOUs/MOAs used in this manner are not legally binding as they do not require parties to commit funds or other resources. They can be appropriate in circumstances where the parties are not quite ready to commit resources and useful in that they push parties to identify desired expectations and responsibilities before being locked into a binding contract. An example of an MOA used in this manner is the Memorandum of Agreement Regarding Future Operation of The Puget Sound Emergency Radio Network entered into between King County and various King County cities.
Local governments have several options when contracting and should choose the most appropriate agreement, depending on the circumstances. Not quite ready to commit? Use an MOU or MOA. Ready to work cooperatively with another agency? Use an interlocal agreement. Do you want to share resources in an emergency situation? Use a mutual aid agreement. Does your local government just want to hire a private consultant for assistance? Go with the standard professional service contract.
MRSC is a private nonprofit organization serving local governments in Washington State. Eligible government agencies in Washington State may use our free, one-on-one Ask MRSC service to get answers to legal, policy, or financial questions.