As many already know, RCW 60.30 went into effect on June 6, 2024. RCW 60.30, generally speaking, applies to private construction projects of twelve (12) units or more, caps retainage at five (5) percent maximum, and outlines the procedural mechanisms for contractors and suppliers to receive statutory interest at one (1) percent on the final payment and outstanding retainage due. RCW 60.30 does not apply to single-family residential construction of less than twelve (12) units.

One of the most basic questions is whether or not parties to a construction contract can waive these statutory requirements. The lawyerly answer is, of course, it depends. In general, where a statutorily created private right serves a public policy purpose, the persons or entities protected by the statute cannot waive the right.[1] And, where a contract is contrary to the terms and policy of an express legislative enactment, the contract is illegal and unenforceable.[2] Otherwise, however, statutory interests can be waived.[3] As a practical matter, RCW 60.30 has – as of the date of this blog post – not been litigated, and the legislative history does not necessarily articulate a clear public policy objective.[4] Therefore, it does not appear likely that a construction contract that purported to properly waive RCW 60.30’s provisions would be, on the whole, illegal and unenforceable, especially if the construction contract contained a severability provision.[5] The reality is, RCW 60.30 may, in fact, be waivable, but for those that want to take a more conservative approach, incorporating – selectively or otherwise – its provisions into your construction contracts may help to mitigate risk by assessing beforehand how the statutory obligations are handled.