Is a construction project on leased public land that is funded entirely by a private nonprofit a 'public work' under Washington law, requiring competitive bidding and prevailing wages?

Plain-English summary

The Yakima County Prosecuting Attorney asked the AG whether a privately financed construction project on leased county property would be a "public work" under Washington law. The specific situation: Yakima County designated the Central Washington Fair Association (CWFA), a nonprofit, to operate the County Fairgrounds under a lease that runs through 2033. The lease says all major improvements revert to the County when it ends. CWFA proposed building a sprint boat racecourse, a maze, paid public viewing areas, concrete pads, entirely with its own funds, no county dollars in the mix.

If the project is a "public work," it has to comply with public works procurement laws (competitive bidding, RCW 39.04) and prevailing wage laws (RCW 39.12.020). If it isn't, the CWFA can build it like any private project.

AG Nick Brown's March 2026 answer was: maybe. The opinion is general guidance, not a project-specific ruling, under RCW 39.12.015, project-specific prevailing-wage determinations are made by the industrial statistician at the Department of Labor and Industries (DLI). But the AG laid out the analytical framework drawn from three Washington Court of Appeals decisions (City of Spokane v. DLI, Supporters of the Center, Inc. v. Moore, and Glacier Northwest v. DLI).

The framework rests on RCW 39.04.010(5), which defines a "public work" as work "executed at the cost of the state or of any municipality, or which is by law a lien or charge on any property therein." Because publicly owned land cannot be subject to a lien, the question for projects on leased public land is whether the project is "executed at the cost of" the government.

Key takeaways from the AG's analysis:

1. The project does not have to be paid for directly by the government to be a public work. City of Spokane held that maintenance of a city-owned waste facility was a public work even though a private company actually paid for and performed the work, because the private company was paid by the city for its services and used those payments to fund the maintenance.

2. Substantial government funding is the strongest single factor. Moore held that a 52% government-funded performing arts center on leased city land was clearly a public work.

3. Other factors matter even without direct government funding:
   - Whether the project has a public purpose.
   - Whether the project is constructed on public land.
   - Whether a government entity will eventually own the project (lease reversion).
   - Whether the project requires simultaneous use of public property.

4. Glacier Northwest confirmed that a project's connection to public land and services and the contractual terms of the project are additional indicators.

The greater the cluster of these characteristics, the more likely the project is a public work. The AG declined to draw a bright line at any specific percentage of government funding or any specific number of factors.

What this means for you

If you're a county or city considering leasing public property for development

The lease terms matter. A lease that requires the lessee's improvements to revert to the public body, requires use of adjacent public facilities, or comes with public-purpose covenants will tend to make the resulting project look more like a public work. If you want to avoid triggering public works classification, draft the lease to minimize these features: no automatic reversion of improvements, no required use of adjacent public facilities, no public-purpose recitals beyond what's necessary.

If you want the project to be a public work (perhaps because you want the prevailing-wage assurance for your community), draft to maximize those features and add direct or indirect government funding.

If you're a nonprofit operating on leased public land

Private funding alone does not insulate you. Look at the cluster of factors. If your lease provides for reversion to the public body, your project sits on public land, you receive any government grants or subsidies (even indirect ones, like below-market lease rates), or your facility's operation depends on adjacent public services, you may be building a public work. Plan accordingly: budget for prevailing wages, plan for competitive bidding, and consult counsel and the DLI industrial statistician under RCW 39.12.015 before starting construction.

The cost of getting this wrong is substantial. After-the-fact prevailing-wage adjustments are punishing, and competitive-bidding violations can void contracts.

If you're a construction contractor bidding on a private nonprofit project on public land

Ask the nonprofit owner whether they've sought a project-specific determination under RCW 39.12.015. If they haven't, request one or factor the prevailing-wage uncertainty into your bid. Treating the project as private when it turns out to be public can leave you on the hook for back wages and penalties.

If you're a Washington DLI industrial statistician

The opinion gives you AG-blessed analytical guidance. The framework is fact-specific multi-factor analysis, with substantial government funding as the strongest single factor and the Spokane, Moore, and Glacier Northwest cases as the principal authorities.

If you're a Yakima County stakeholder watching the sprint boat racecourse project

The AG declined to make a project-specific determination. The question of whether CWFA's racecourse will be a public work depends on facts the AG opinion did not have to evaluate: how the public-purpose declaration in RCW 36.37.010 (county fairs are "in the interest of public good and a strictly county purpose") applies, the lease's reversion clause, and any indirect government support. The DLI industrial statistician under RCW 39.12.015 is the right body to make that call. Stakeholders concerned about the issue should request a project-specific determination before construction starts.

Common questions

Q: What is a "public work" in plain English?
A: It's a construction or improvement project that, under Washington law, is treated as the responsibility of a government body: even if a private contractor actually does the work. The classification triggers competitive bidding requirements (RCW 39.04) and prevailing wage requirements (RCW 39.12). The point of the rules is to ensure that public money is spent fairly and that workers on public projects earn the same wage as similar workers in the area.

Q: What is "prevailing wage"?
A: The hourly wage and benefits for a particular trade in a particular locality, as determined by the Department of Labor and Industries' industrial statistician. RCW 39.12.020 requires that workers on public works be paid no less than the prevailing rate. Prevailing wages are typically union-scale or close to it.

Q: How do I get a project-specific determination?
A: Under RCW 39.12.015, you can ask the industrial statistician at the Department of Labor and Industries for a determination of whether prevailing wages apply to a specific project. The DLI has procedures for these requests and will issue a written determination based on the project's facts.

Q: Does the public-works analysis apply only to construction?
A: It can apply to construction, alteration, repair, and improvement other than ordinary maintenance. City of Spokane v. DLI applied it to ongoing maintenance of a city-owned waste facility, so even maintenance work can be a public work in the right circumstances.

Q: Does it matter that the lessee is a nonprofit?
A: No, not directly. Nonprofit status doesn't change the public-works analysis. What matters is the cluster of factors: public funding, public purpose, public land, public ownership, public use.

Background and statutory framework

The statutory definition

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." WAC 296-127-010(7)(a) provides a parallel administrative definition.

Because publicly owned property cannot be subject to a lien, the operative test for projects on public land is "executed at the cost of" the government.

The three guiding cases

City of Spokane v. DLI, 100 Wn. App. 805 (2000) held that ongoing maintenance of a city-owned waste facility was a public work even though a private company performed it. The city paid the company a flat fee per ton of waste processed; the company used part of the fee to fund the annual maintenance shutdowns. The court held that the source of funding (city payments to the company) was public, and the company's discretion in how to allocate the funds did not change that. Plus, the city owned the facility, contracted directly with the company, and the work served a public purpose (waste processing).

Supporters of the Center, Inc. v. Moore, 119 Wn. App. 352 (2003) held that a Wenatchee performing arts center was a public work. The nonprofit corporation that built it received over 52% of project funding from government sources (legislative appropriation plus city advance rent). The 30-year lease provided that the building would belong to the city at the end. The center required use of an adjacent city-owned convention center for its functioning, and the legislative appropriation came with a contract requiring the nonprofit to also improve that convention center.

Glacier Northwest, Inc. v. DLI, 32 Wn. App. 2d 189 (2024) confirmed that a project's connection to public land and public services, plus the obligations laid out in the project's contractual terms, are additional criteria indicative of a public work.

Why the test is fact-specific

The cases do not draw a bright line. They identify factors that matter and assess each project against the cluster. The result is uncertainty for project planners, but the uncertainty is the price of a flexible standard that captures both obvious cases (a city-funded city building) and harder cases (a nonprofit on public land with no direct government funding but lease reversion and required use of adjacent public facilities).

Citations and references

Statutes:
- RCW 39.04.010 (definition of public work)
- RCW 39.12.020 (prevailing wage requirement)
- RCW 39.12.015 (project-specific prevailing wage determination)
- RCW 36.37 (county fairs)

Cases:
- Drake v. Molvik & Olsen Elec., Inc., 107 Wn.2d 26 (1986)
- City of Spokane v. Department of Labor & Industries, 100 Wn. App. 805 (2000)
- Supporters of Center, Inc. v. Moore, 119 Wn. App. 352 (2003)
- Glacier Northwest, Inc. v. Department of Labor & Industries, 32 Wn. App. 2d 189 (2024)

Source

• Landing page: https://www.atg.wa.gov/ago-opinions/public-works-and-improvements-statutes-applicability-public-works-procurement-and

Original opinion text

ATTORNEY GENERAL NICK BROWN

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

The Honorable Joseph A. Brusic
Yakima County Prosecuting Attorney
128 North Second Street, Room 329
Yakima, WA 98901

Cite As: AGO 2026 No. 2

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.

FACTUAL BACKGROUND

Your question arises out of a proposed construction project at the Yakima County Fairgrounds, which Yakima County owns. 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. 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.

Public works projects must generally comply with certain requirements, such as competitive bidding and payment of prevailing wages. 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."

Whether a certain project is a "public work" is a legal question. 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." 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.

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.

I. The City of Spokane case

In City of Spokane v. Department of Labor & Industries, 100 Wn. App. 805, 998 P.2d 913 (2000), 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. There, a private company operated a city-owned waste facility. Each year, the company shut down the facility for maintenance and did not pay prevailing wages for work performed during the shutdowns. 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.

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. 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." 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. 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. 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.

II. The Moore case

In Supporters of the Center, Inc. v. Moore, 119 Wn. App. 352, 80 P.3d 618 (2003), 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. In Moore, a nonprofit corporation raised money to construct a performing arts center in Wenatchee. The funds raised included a legislative appropriation and a city payment of advance rent. The nonprofit corporation and the city executed a 30-year lease for property on which the performing arts center would be built. The property was immediately adjacent to a city-owned convention center. 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.

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. 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. 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.

III. The synthesis

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 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