NAC: CHAPTER 338 - PUBLIC WORKS PROJECTS

[Rev. 6/21/2024 5:22:45 PM]

[NAC-338 Revised Date: 6-24]

CHAPTER 338 - PUBLIC WORKS PROJECTS

EMPLOYMENT

General Provisions

338.005 Definitions.

338.0052 “Apprentice” defined.

338.0054 “Awarding body” defined.

338.0056 “Certified payroll report” defined.

338.0065 “Nonperformance payroll report” defined.

338.007 “Recognized class of workers” defined.

338.0075 “Evidence presented” interpreted.

338.008 Existence or nonexistence of contract between awarding body and contractor does not bar enforcement by Labor Commissioner or awarding body.

Wages

338.009 Workers deemed to be employed on public works: Interpretation of certain statutory terms.

338.0095 Workers and apprentices: Payment of applicable prevailing rate of wage for type of work actually performed and in accordance with recognized class of workers; identification of employer.

338.010 Method of determination of prevailing rate of wages for recognized class of workers.

338.015 Recognized classes of workers: Subclassifications; determination of prevailing rate of wages for each craft or type of work among class.

338.017 Truck drivers: Periods when deemed to be employed on public work.

338.020 Information considered in determining prevailing rates of wages.

338.040 Adjustment in prevailing rates of wages: Effective period; request for new determination.

338.050 Determination of prevailing rates of wages: Correction of clerical errors.

338.060 Determination of prevailing rates of wages: Availability of copies.

338.070 Doubt concerning prevailing rate of wages in region.

338.090 Hearing to determine need for new recognized class of workers.

Reports and Records

338.092 Reports by contractors and subcontractors to Labor Commissioner: Form and contents; substantiation.

338.094 Certified payroll report: Format; required information and documentation.

338.096 Certified payroll report: Examination by awarding body; reporting of potential violation.

338.098 Nonperformance payroll report: Submission in lieu of certified payroll report; final report.

338.100 Certified payroll report and nonperformance payroll report: Notation of date of receipt; submission to Labor Commissioner.

Determination of Violation

338.105 “Determination” defined.

338.107 Complaint of violation: Filing with Labor Commissioner; contents; service; limitation on acceptance of complaint.

338.108 Answer to complaint; investigation; failure to answer.

338.110 Determination by awarding body: Procedure; factors for consideration; objection to determination.

338.112 Determination by awarding body: Action by Labor Commissioner; objection to and hearing on modified determination; disposition.

338.114 Determination by Labor Commissioner: Issuance and service; objection to and hearing on determination; disposition.

338.116 Hearing on determination: Procedure; exception.

Penalties

338.120 Sliding scale of penalties.

338.125 Temporary disqualification of contractor or subcontractor.

PROCEDURES FOR AWARDING CONTRACTS

General Provisions

338.130 Definitions.

338.132 “Administrative proceeding” defined.

338.133 “Administrator” defined.

338.134 “Board” defined.

338.135 “Division” defined.

338.136 “Final completion” defined.

338.140 “Prime contractor” defined.

338.142 “Public work” defined.

338.144 “Substantial completion” defined.

Qualification of Bidders: Prime Contractors

338.150 Definitions.

338.170 “Bidder” defined.

338.181 “Business entity associated with the principal personnel” defined.

338.190 “Committee” defined.

338.200 “Cost category” defined.

338.220 “Principal personnel” defined.

338.231 “Successfully completed project” defined.

338.240 Criteria for qualification for public work with estimated cost of $100,000 or more; pertinent documentation and information; exceptions.

338.245 Criteria for qualification for public work with estimated cost of less than $100,000; pertinent documentation and information.

338.250 Application for qualification; eligibility to bid on public work.

338.260 Action on application; period of qualification; reapplication after denial of application; denial of request to withdraw application.

338.270 Appeal of determination that prime contractor is not qualified; hearings on appeals.

338.280 Revocation of qualification.

338.285 Evaluation of performance of prime contractor on public work with estimated cost of $100,000 or more.

338.290 Notification of Division regarding change to or renewal of license of qualified bidder.

Qualification of Bidders: Subcontractors

338.300 Definitions.

338.310 “Business entity associated with the principal personnel” defined.

338.320 “Committee” defined.

338.330 “Cost category” defined.

338.340 “Principal personnel” defined.

338.350 “Subcontractor” defined.

338.360 “Successfully completed project” defined.

338.370 Criteria for qualification; pertinent documentation and information; maintenance of public list of subcontractors determined not to be qualified.

338.380 Application for qualification; disqualification; inclusion of subcontractor in bid.

338.390 Action on application; period of disqualification; reapplication after disqualification; denial of withdrawal of application.

338.400 Appeal of disqualification; hearings on appeals.

338.410 Revocation of qualification.

Preference for Bids on Smaller Contracts Submitted by Local Businesses Owned and Operated by Veterans With Service-Connected Disabilities

338.420 Definitions.

338.425 “Business owned and operated by a veteran with a service-connected disability” defined.

338.430 “Local business” defined.

338.440 “Veteran with a service-connected disability” defined.

338.450 Preference for public work with estimated cost of $100,000 or less: Application; maintenance and posting of list of businesses qualified to receive preference.

338.460 Preference for public work with estimated cost of more than $100,000 but less than $250,000: Application; maintenance and posting of list of businesses qualified to receive preference.

CONTRACTS INVOLVING CONSTRUCTION MANAGERS AT RISK

Construction Managers at Risk

338.500 Qualifications.

338.510 Requests for proposals.

338.520 Submission of proposals.

338.530 Procedure for selection of most qualified applicants.

Contracts Between Construction Managers at Risk and Subcontractors to Provide Labor, Materials or Equipment on Projects

338.550 Definitions.

338.555 “Application for qualification” defined.

338.560 “Construction manager at risk” defined.

338.565 “Proposal” defined.

338.570 Applicability.

338.580 Submission of applications for qualification.

338.590 Procedure for determining qualification of applicants.

338.600 Appeal of determination that subcontractor not qualified to submit proposal; hearing.

338.610 Notice of request for proposals.

338.620 Proposals: When considered responsive; process if fewer than three received; envelopes must be time stamped.

338.630 Proposals: Opening; qualifications; return of proposal that does not satisfy requirements.

338.640 Procedure after opening proposals; evaluation of proposals and selection of subcontractor; meeting with subcontractor not selected upon request; confirmation of compliance with requirements.

EMPLOYMENT

General Provisions

NAC 338.005 Definitions. (NRS 338.012) As used in NAC 338.005 to 338.125, inclusive, unless the context otherwise requires, the words and terms defined in NRS 338.010 and NAC 338.0052 to 338.007, inclusive, have the meanings ascribed to them in those sections.

(Added to NAC by Labor Comm’r by R072-00, eff. 8-15-2000; A by R115-01, 4-5-2002)

NAC 338.0052 “Apprentice” defined. (NRS 338.012) “Apprentice” means a person employed and individually registered in a bona fide apprenticeship program in accordance with chapter 610 of NRS and any regulations adopted pursuant thereto.

(Added to NAC by Labor Comm’r by R115-01, eff. 4-5-2002; A by R018-18, 6-8-2020)

NAC 338.0054 “Awarding body” defined. (NRS 338.012) “Awarding body” means a public body, as that term is defined in NRS 338.010, or any authorized agent or representative of a public body.

(Added to NAC by Labor Comm’r by R115-01, eff. 4-5-2002)

NAC 338.0056 “Certified payroll report” defined. (NRS 338.012) “Certified payroll report” means the record that a contractor or subcontractor engaged on a public work is required to submit to an awarding body pursuant to subsections 4 and 5 of NRS 338.070 with a statement of compliance as required pursuant to subsection 1 of NAC 338.094 for each month after the contractor or subcontractor commences working on the public work in which the contractor or subcontractor employs one or more workers in connection with the public work.

(Added to NAC by Labor Comm’r by R115-01, eff. 4-5-2002; A by R207-03, 2-19-2004)

NAC 338.0065 “Nonperformance payroll report” defined. (NRS 338.012) “Nonperformance payroll report” means the report that a contractor or subcontractor engaged on a public work is required to submit to an awarding body pursuant to NAC 338.098 for each month after the contractor or subcontractor commences working on the public work in which the contractor or subcontractor does not employ any workers in connection with the public work.

(Added to NAC by Labor Comm’r by R115-01, eff. 4-5-2002; A by R207-03, 2-19-2004)

NAC 338.007 “Recognized class of workers” defined. (NRS 338.012) “Recognized class of workers” means a class of workers recognized by the Labor Commissioner as being a distinct craft or type of work for purposes of establishing prevailing rates of wages. The term includes a class of workers for which the Labor Commissioner has traditionally established a prevailing rate of wages and any other class of workers the Labor Commissioner determines to be a distinct craft or type of work either on his or her own accord or after conducting a hearing pursuant to NAC 338.090.

(Added to NAC by Labor Comm’r by R072-00, eff. 8-15-2000)

NAC 338.0075 “Evidence presented” interpreted. (NRS 338.012, 338.020, 338.030) As used in subsection 5 of NRS 338.030, the Labor Commissioner will interpret “evidence presented” to include a local area practice survey conducted by the Labor Commissioner based upon the procedures set forth in the most recently published version of chapter 15 of the Field Operations Handbook of the Wage and Hour Division of the United States Department of Labor, which may be obtained free of charge at the Internet address https://www.dol.gov/agencies/whd/field-operations-handbook, if such a survey was conducted.

(Added to NAC by Labor Comm’r by R018-18, eff. 6-8-2020)

NAC 338.008 Existence or nonexistence of contract between awarding body and contractor does not bar enforcement by Labor Commissioner or awarding body. (NRS 338.012) The existence or nonexistence of a contract between an awarding body and a contractor is not a bar to the enforcement by the Labor Commissioner or the awarding body of the provisions of NRS 338.010 to 338.090, inclusive, and NAC 338.005 to 338.125, inclusive.

(Added to NAC by Labor Comm’r by R115-01, eff. 4-5-2002; A by R207-03, 2-19-2004; R018-18, 6-8-2020)

Wages

NAC 338.009 Workers deemed to be employed on public works: Interpretation of certain statutory terms. (NRS 338.012, 338.040)

1. As used in NRS 338.040, the Labor Commissioner will interpret:

(a) “Employed at the site of a public work” to mean the performance of work in the execution of a contract for a public work at the physical place or places at which the work is performed or at which a significant portion of the public work is constructed, altered or repaired if such place is established specifically for the execution of the contract for the public work or dedicated exclusively, or nearly so, to the execution of the contract for the public work.

(b) “Necessary in the execution of the contract for the public work” to mean the performance of duties required to construct, alter or repair the public work and without which the public work could not be completed.

(c) The terms interpreted in paragraphs (a) and (b) do not include an instance in which a person provides services to the prime contractor or a subcontractor at the site of a public work for a limited period of time if the services provided:

(1) Do not include work typically performed by a recognized class of workers; and

(2) Are incidental or ancillary to the construction, repair or reconstruction of the public work.

2. As used in this section, “site of a public work” includes job headquarters, a tool yard, batch plant, borrow pit or any other location that is established for the purpose of executing the contract for the public work or that is dedicated exclusively, or nearly so, to executing the contract for the public work. The term does not include a permanent home office, branch plant establishment, fabrication plant, tool yard or any other operation of a contractor, subcontractor or supplier if the location or the continued existence of the operation is determined without regard to a particular public work.

(Added to NAC by Labor Comm’r by R115-01, eff. 4-5-2002; A by R090-04, 6-30-2004; R022-06, 5-4-2006; R018-18, 6-8-2020)

NAC 338.0095 Workers and apprentices: Payment of applicable prevailing rate of wage for type of work actually performed and in accordance with recognized class of workers; identification of employer. (NRS 338.012, 338.020)

1. For the purposes of NRS 338.010 to 338.090, inclusive, and NAC 338.005 to 338.125, inclusive:

(a) A worker employed on a public work must be paid the applicable prevailing rate of wage for the type of work that the worker actually performs on the public work and in accordance with the recognized class of the worker; and

(b) Each contractor and subcontractor shall be deemed to be the employer of each worker and apprentice who performs work directly for that contractor or subcontractor in the execution of a contract for a public work, whether the worker or apprentice is employed directly by the contractor or subcontractor or is furnished to the contractor or subcontractor by or through another person or entity such as a professional employer organization or an equipment rental business.

2. Any person employed on a public work as an apprentice or listed on a certified payroll report as an apprentice who does not meet the definition of an apprentice set forth in NAC 338.0052 must be paid not less than the applicable wage rate for the type of work actually performed by the person and in accordance with the applicable recognized class of workers. Any person designated as an apprentice performing work at the site of a public work who exceeds the ratio of apprentices to journeymen authorized under the registered program of apprenticeship must be paid not less than the applicable wage rate for the type of work actually performed by the person and in accordance with the applicable recognized class of workers.

3. Nothing in this section shall be construed as providing the Labor Commissioner with jurisdiction over collective bargaining disputes involving the assignment of work between unions, including, without limitation, the assignment of work to members of multiple unions, in accordance with established practice or the applicable collective bargaining agreement.

(Added to NAC by Labor Comm’r by R115-01, eff. 4-5-2002; A by R207-03, 2-19-2004; R018-18, 6-8-2020)

NAC 338.010 Method of determination of prevailing rate of wages for recognized class of workers. (NRS 338.012, 338.020, 338.030)

1. Based on the information described in subsection 1 of NAC 338.020, the Labor Commissioner will determine the prevailing rate of wages paid to each recognized class of workers in a region as follows:

(a) Where the rate of wages is the same for the majority of the total hours worked by a recognized class of workers who are employed in the region on construction similar to the proposed construction, including, without limitation, rates of wages that were collectively bargained, that rate will be determined as the prevailing rate.

(b) Where there is no such majority, the prevailing rate for the recognized class of workers will be determined as:

(1) The rate of wages paid for the greater number of hours worked by the recognized class of workers if that number constitutes 40 percent or more of the total number of hours worked by the recognized class of workers; or

(2) The average rate of wages paid per hour, based on the number of hours worked per rate, to a recognized class of workers who are employed if the number of hours paid at the same rate is less than 40 percent of the total number of hours worked by the recognized class of workers.

(c) When calculating the prevailing wage in a region in accordance with NRS 338.030, if no construction similar to the proposed construction has been performed within the region in the past 2 years, the Labor Commissioner will consider the prevailing rate of wages paid in:

(1) The Northern Rural Prevailing Wage Region, when calculating the prevailing wage for the Washoe Prevailing Wage Region;

(2) The Washoe Prevailing Wage Region, when calculating the prevailing wage for the Northern Rural Prevailing Wage Region;

(3) The Southern Rural Prevailing Wage Region, when calculating the prevailing wage for the Clark Prevailing Wage Region; and

(4) The Clark Prevailing Wage Region, when calculating the prevailing wage for the Southern Rural Prevailing Wage Region.

2. If the Labor Commissioner determines that the prevailing rate of wages for a surveyed recognized class of workers is a wage which has been collectively bargained, the Labor Commissioner will use the job classifications, scope of work and job descriptions for the recognized class of workers established in the collective bargaining agreement for the time period for which the collectively bargained wage is the prevailing rate of wages for that class of workers.

3. Nothing in this section shall be construed as authorizing the Labor Commissioner to create a new job classification, subclassification, scope of work or job description for a recognized class of work without first conducting a hearing as required by NAC 338.090.

4. As used in this section, “construction similar to the proposed construction” means any construction other than the construction of:

(a) A single-family residence; or

(b) A multifamily residence that is not more than three stories in height.

(Added to NAC by Labor Comm’r eff. 12-1-83; A by R072-00, 8-15-2000; R072-00, 8-15-2000, eff. 7-1-2001; R018-18, 6-8-2020)

NAC 338.015 Recognized classes of workers: Subclassifications; determination of prevailing rate of wages for each craft or type of work among class. (NRS 338.012, 338.020, 338.030)

1. The subclassifications within the recognized classes of workers include, without limitation:

(a) Foreman. A foreman is a person who works with and supervises one or more journeymen performing a craft or type of work.

(b) General foreman. A general foreman is a person who works with and supervises one or more journeymen performing a craft or type of work, including, without limitation, one or more foremen.

(c) Journeyman. A journeyman is a skilled mechanic, skilled worker, semiskilled mechanic, semiskilled worker or unskilled worker performing a craft or type of work.

2. The Labor Commissioner will consider the kind of information described in subsection 1 of NAC 338.020 to determine the applicable prevailing wage for each craft or type of work among the recognized class of workers.

(Added to NAC by Labor Comm’r by R115-01, eff. 4-5-2002; A by R018-18, 6-8-2020)

NAC 338.017 Truck drivers: Periods when deemed to be employed on public work. (NRS 338.012, 338.040) A worker who performs the craft of truck driver shall be deemed to be employed on a public work only while:

1. Transporting materials at the site of a public work; or

2. Transporting materials between the sites of a public work.

(Added to NAC by Labor Comm’r by R090-04, eff. 6-30-2004; A by R018-18, 6-8-2020)

NAC 338.020 Information considered in determining prevailing rates of wages. (NRS 338.012, 338.020, 338.030)

1. The kinds of information which the Labor Commissioner will consider in making determinations of prevailing rates of wages pursuant to NRS 338.030 include:

(a) Statements showing rates of wages, bona fide fringe benefits paid on public and private projects, where the statements are signed by the contractors or their representatives and contain:

(1) The names and addresses of the contractors and subcontractors;

(2) The locations, project names and approximate dates of construction within the survey period;

(3) The number of hours each recognized class of workers is employed on each project; and

(4) The respective wages, as defined in NRS 338.010, paid to each recognized class of workers employed on each project.

(b) Signed collective bargaining agreements that are on file with the Labor Commissioner on or before September 1 of each year preceding the biennial determination of the prevailing rates of wages.

2. When determining prevailing rates of wages, the Labor Commissioner may, as he or she determines is in the best interest of the State, exclude from consideration any information submitted to him or her that is untimely filed, duplicative, incomplete or determined by the Labor Commissioner to be unverifiable.

3. As used in this section, “representative” means:

(a) An agent, officer or employee of a contractor or subcontractor who has been authorized to act in such a capacity by the contractor or subcontractor; or

(b) Any other person empowered by a written agreement with the contractor or subcontractor that authorizes the person to act on behalf of the contractor or subcontractor in submitting the information required pursuant to paragraph (a) of subsection 1.

(Added to NAC by Labor Comm’r, eff. 12-1-83; A by R072-00, 8-15-2000; R115-01, 4-5-2002; R018-18, 6-8-2020)

NAC 338.040 Adjustment in prevailing rates of wages: Effective period; request for new determination. (NRS 338.012, 338.020, 338.030)

1. An adjustment in the prevailing rate of wages pursuant to NRS 338.030 becomes effective:

(a) On the date specified by the Labor Commissioner upon issuing or reissuing the prevailing rate of wages for a class of workers; or

(b) If an effective date is not specified by the Labor Commissioner, 10 days after the issuance or reissuance of the prevailing rate of wages.

2. An adjustment in the prevailing rate of wages pursuant to NRS 338.030 expires upon the effective date of a subsequently issued applicable determination of the prevailing rates of wages.

3. If a public body believes that a pattern of wages is not clearly established in a region, it may request the Labor Commissioner to make a new determination of the prevailing wages in the region. Such a request must be accompanied by the information outlined in paragraph (a) of subsection 1 of NAC 338.020.

(Added to NAC by Labor Comm’r, eff. 12-1-83; A by R072-00, 8-15-2000; R207-03, 2-19-2004; R018-18, 6-8-2020)

NAC 338.050 Determination of prevailing rates of wages: Correction of clerical errors. (NRS 338.012, 338.020, 338.030) Upon his or her own initiative or at the request of any person who is required to be heard pursuant to subsection 5 of NRS 338.030, the Labor Commissioner will correct any determination of prevailing wages which he or she has issued if he or she finds that it contains a clerical error. A correction is applicable to all projects bid after the correction becomes effective and to projects bid before the correction becomes effective to the extent provided by NRS 338.030.

(Added to NAC by Labor Comm’r, eff. 12-1-83; A by R072-00, 8-15-2000; R018-18, 6-8-2020)

NAC 338.060 Determination of prevailing rates of wages: Availability of copies. (NRS 338.012, 338.020, 338.030) Copies of the Labor Commissioner’s determinations of prevailing rates of wages are available at his or her office and will be furnished to public bodies and interested persons upon request beginning on October 1 of each year.

(Added to NAC by Labor Comm’r, eff. 12-1-83; A by R072-00, 8-15-2000; R115-01, 4-5-2002)

NAC 338.070 Doubt concerning prevailing rate of wages in region. (NRS 338.012, 338.020, 338.030) The Labor Commissioner will regard himself or herself as being in doubt concerning a prevailing rate of wages in a region and will hold the required hearing in the region whenever the Labor Commissioner finds that:

1. The data within his or her possession are not substantial enough; or

2. His or her other means of obtaining information are inadequate,

Ê to enable him or her to determine the prevailing rate of wages for any recognized class of workers in the region.

(Added to NAC by Labor Comm’r, eff. 12-1-83; A by R072-00, 8-15-2000; R018-18, 6-8-2020)

NAC 338.090 Hearing to determine need for new recognized class of workers. (NRS 338.012, 338.020, 338.030) Upon his or her own initiative or at the request of any person who is required to be heard pursuant to subsection 5 of NRS 338.030, the Labor Commissioner may conduct a hearing to determine the need for a new recognized class of workers if he or she is in doubt as to the adequacy of an existing recognized class of workers.

(Added to NAC by Labor Comm’r by R072-00, eff. 8-15-2000)

Reports and Records

NAC 338.092 Reports by contractors and subcontractors to Labor Commissioner: Form and contents; substantiation. (NRS 338.012, 338.013)

1. Except as otherwise provided in subsection 2, a contractor who has been awarded a contract for a public work and all subcontractors hired by the contractor shall report the name and address of each subcontractor whom the contractor or subcontractor engages for work on the public work as required pursuant to subsection 3 of NRS 338.013 on a form prescribed by the Labor Commissioner. The report must include, without limitation:

(a) The name of the owner or principal of the subcontractor;

(b) The telephone number and facsimile number, if any, of the subcontractor;

(d) The number, if any, of the license issued to the subcontractor by the State Contractors’ Board pursuant to chapter 624 of NRS.

2. A contractor who has been awarded a contract for a public work and all subcontractors hired by the contractor do not need to report suppliers hired by the contractor or subcontractor to the Labor Commissioner or the public body that awarded the contract pursuant to subsection 1.

3. A contractor engaged on a public work has the burden of proof in substantiating that he or she reported any subcontractors whom the contractor has engaged for work on the public work to the Labor Commissioner and the public body that awarded the contract pursuant to subsection 3 of NRS 338.013.

4. As used in this section, “supplier” has the meaning ascribed to it in NRS 338.010.

(Added to NAC by Labor Comm’r by R115-01, eff. 4-5-2002; A by R207-03, 2-19-2004; R018-18, 6-8-2020)

NAC 338.094 Certified payroll report: Format; required information and documentation. (NRS 338.012, 338.070)

1. Each certified payroll report:

(a) May be submitted electronically on a form prescribed by the Labor Commissioner or in a format selected by the contractor or subcontractor that provides the information required pursuant to subsection 5 of NRS 338.070;

(b) Must be accompanied by a statement of compliance, on a form prescribed by the Labor Commissioner, which is executed by the contractor or subcontractor and which certifies the truthfulness and accuracy of the payroll report; and

(c) Must include an itemization of all bona fide fringe benefits provided in the name of a worker as authorized by NRS 338.035, if any such contributions were made as part of the wages of that worker.

2. A contractor or subcontractor shall report workers on a certified payroll report for a public work:

(a) Based on the type of work actually performed by the workers;

(b) Based on the number of hours worked per worker per day; and

Ê Such a report must not include any hours of work performed by the workers on another public work or private project.

3. When a contractor or subcontractor first lists an apprentice on a certified payroll report, the contractor or subcontractor must submit with that certified payroll report documentation, on such forms as the Labor Commission may prescribe, to substantiate that the apprentice meets the definition of apprentice as provided in NAC 338.0052 and that the hours and wages of any such apprentice have been accurately reported in the certified payroll report.

4. Upon the request of the awarding body or the Labor Commissioner, a contractor or subcontractor engaged on a public work shall provide to the requesting entity payroll records and any other records deemed necessary by the requesting entity to verify the accuracy of information contained in any certified payroll report submitted by the contractor or subcontractor.

(Added to NAC by Labor Comm’r by R115-01, eff. 4-5-2002; A by R207-03, 2-19-2004; R018-18, 6-8-2020)

NAC 338.096 Certified payroll report: Examination by awarding body; reporting of potential violation. (NRS 338.012, 338.070)

1. An awarding body shall cause, or the Labor Commissioner will cause, such an examination of the certified payroll reports of a contractor or subcontractor to be made at reasonable times to assure compliance with the provisions of NRS 338.010 to 338.090, inclusive, and NAC 338.005 to 338.125, inclusive. Such an examination must include, or, if conducted by the Labor Commissioner will include, without limitation:

(a) Verification of the wages entered into the payroll system, wages that were actually paid, validation settings in the payroll system and self-audit and preventative measures established by the contractor or subcontractor to ensure the correct wages are paid for the type of work actually performed by those employees;

(b) Review of records and other data concerning the payroll of the contractor or subcontractor;

(c) Verification of the registration of apprentices or documentation demonstrating that the use of apprentices was not required for the project or was waived by the Labor Commissioner; and

(d) Evidence of payments of bona fide fringe benefits, if any, and, if so, a description of any such benefits, the amount of any such benefits, the frequency with which such benefits were paid and, if applicable, the plan or group name.

2. In conducting an examination pursuant to this section, an awarding body shall verify and report to the Labor Commissioner upon request:

(a) The accuracy of the reporting of workers in the recognized classes of the workers; and

(b) The ratio of apprentices to journeymen authorized under the registered program of apprenticeship and the percentage of apprentices under the registered program that were used.

3. Except for the late submittal of a certified payroll report pursuant to subsection 6 of NRS 338.070, an awarding body shall report to the Labor Commissioner any potential violation of NRS 338.010 to 338.090, inclusive, or NAC 338.005 to 338.125, inclusive, discovered during the examination of the certified payroll reports. Such a report to the Labor Commissioner must include, if applicable, documentation identifying any error in payroll reporting and a description of any subsequent corrective action or audit taken by the contractor, subcontractor or awarding body.

(Added to NAC by Labor Comm’r by R115-01, eff. 4-5-2002; A by R207-03, 2-19-2004; R018-18, 6-8-2020)

NAC 338.098 Nonperformance payroll report: Submission in lieu of certified payroll report; final report. (NRS 338.012, 338.070)

1. If a contractor or subcontractor engaged on a public work does not employ any workers in any calendar month during which he or she is engaged on the public work, the contractor or subcontractor shall, in lieu of submitting a certified payroll report pursuant to subsection 6 of NRS 338.070 for that month, submit to the awarding body a nonperformance payroll report certifying that the contractor or subcontractor did not employ any workers on the public work during that month. If a contractor or subcontractor employs any worker on the public work in any calendar month after the submission of a nonperformance payroll report, the contractor or subcontractor shall submit a certified payroll report for that month to the awarding body as required by NRS 338.070 and NAC 338.094.

2. A nonperformance payroll report must be completed on a form prescribed by the Labor Commissioner and must be submitted to the awarding body not later than 15 days after the end of a month in which the contractor or subcontractor did not employ any workers on the public work.

3. If a contractor or subcontractor engaged on a public work does not employ any workers for 3 consecutive calendar months on the public work, the Labor Commissioner or the awarding body may, as determined is in the best interest of the State, request that the contractor or subcontractor submit a final nonperformance payroll report or other documentation demonstrating that the contractor or subcontractor has completed all the work on the public work for which the contractor or subcontractor was engaged.

4. If the awarding body uses an electronic system for submission of payroll reports by contractors and subcontractors, the awarding body shall make the payroll reports and payroll records it has received pursuant to NRS 338.070 and NAC 338.092, 338.094 and 338.096 available electronically to the Labor Commissioner and the public as soon as practicable after they are received by the awarding body.

(Added to NAC by Labor Comm’r by R115-01, eff. 4-5-2002; A by R207-03, 2-19-2004; R018-18, 6-8-2020)

NAC 338.100 Certified payroll report and nonperformance payroll report: Notation of date of receipt; submission to Labor Commissioner. (NRS 338.012, 338.070)

1. An awarding body shall cause to be affixed to each certified payroll report or nonperformance payroll report that the awarding body receives the actual date on which the awarding body received the certified payroll report or nonperformance payroll report.

2. An awarding body shall, upon request of the Labor Commissioner, submit a copy of a certified payroll report or a nonperformance payroll report to the Labor Commissioner.

(Added to NAC by Labor Comm’r by R115-01, eff. 4-5-2002)

Determination of Violation

NAC 338.105 “Determination” defined. (NRS 338.012) As used in NAC 338.105 to 338.116, inclusive, “determination” means a proposed finding of the Labor Commissioner or an awarding body as to whether a violation of a provision of NRS 338.010 to 338.090, inclusive, or NAC 338.005 to 338.125, inclusive, has occurred.

(Added to NAC by Labor Comm’r by R207-03, eff. 2-19-2004; A by R018-18, 6-8-2020)

NAC 338.107 Complaint of violation: Filing with Labor Commissioner; contents; service; limitation on acceptance of complaint. (NRS 338.012, 338.015)

1. Except as otherwise provided in subsection 2, a person filing a complaint, including a claim for wages, with the Labor Commissioner alleging that a violation of a provision of NRS 338.010 to 338.090, inclusive, or NAC 338.005 to 338.125, inclusive, has occurred with respect to the person shall:

(a) Provide in writing to the Labor Commissioner:

(1) The full name and address of the person filing the complaint;

(2) The full name and address of the person alleged to have committed the violation;

(3) A clear and concise statement of facts sufficient to establish that an alleged violation of a provision of NRS 338.010 to 338.090, inclusive, or NAC 338.005 to 338.125, inclusive, has occurred, including, without limitation, the date, time and place of the alleged violation and the name of each person involved;

(4) A citation to the specific statute or regulation alleged to have been violated;

(5) The relief requested by the person filing the complaint;

(6) A certification by the person filing the complaint that the facts alleged in the complaint are true to the best knowledge and belief of the person filing the complaint; and

(7) The signature of the person filing the complaint.

(b) Submit an original and one copy of the complaint to the Labor Commissioner with a certificate of service attached.

(1) Personal service; or

(2) Regular mail.

2. The Labor Commissioner will accept a written anonymous complaint which alleges a violation of a provision of NRS 338.010 to 338.090, inclusive, or NAC 338.005 to 338.125, inclusive, has occurred with respect to a person other than the person filing the complaint if the person filing an anonymous complaint provides:

(a) The full name and address of the person alleged to have committed the violation; and

(b) A statement of facts and information supporting that an alleged violation of a provision of NRS 338.010 to 338.090, inclusive, or NAC 338.005 to 338.125, inclusive, has occurred.

3. If, after reviewing a complaint submitted pursuant to subsection 2, the Labor Commissioner determines that further investigation is warranted, the Labor Commissioner will serve a copy of the complaint upon the person alleged to have committed the violation by:

(a) Personal service; or

(b) Regular mail.

4. The Labor Commissioner will not accept a complaint submitted pursuant to this section that is based on an act or omission that occurred more than 24 months before the date on which the complaint is filed with the Labor Commissioner.

(Added to NAC by Labor Comm’r by R207-03, eff. 2-19-2004; A by R018-18, 6-8-2020)

NAC 338.108 Answer to complaint; investigation; failure to answer. (NRS 338.012, 338.015)

1. Within 15 days after being served a complaint pursuant to NAC 338.107, the person alleged to have committed the violation which is the subject of the complaint shall file an answer to the complaint with the Labor Commissioner and serve a copy of the answer on the complainant, if the identity of the complainant is included in the complaint, and every other person who is a party to the proceeding.

2. Matters that are alleged as an affirmative defense must be separately stated and numbered.

3. If, after reviewing the complaint and answer, the Labor Commissioner determines that further investigation is warranted, the Labor Commissioner will order the awarding body to conduct such further investigation pursuant to NAC 338.110, or the Labor Commissioner will conduct his or her own investigation. Complaints filed against the awarding body for which further investigation is warranted will be investigated by the Labor Commissioner.

4. If no answer is timely filed and served pursuant to subsection 1, the Labor Commissioner will determine that the person alleged to have committed the violation is in default and, within 30 days after the determination of a default, issue a decision and order based solely on the facts as presented in the complaint. A decision issued by the Labor Commissioner pursuant to this subsection constitutes the final order of the Labor Commissioner on the matter.

(Added to NAC by Labor Comm’r by R018-18, eff. 6-8-2020)

NAC 338.110 Determination by awarding body: Procedure; factors for consideration; objection to determination. (NRS 338.012, 338.015, 338.070, 607.150, 607.210)

1. Upon its own initiative or at the order of the Labor Commissioner pursuant to subsection 3 of NAC 338.108, an awarding body shall cause such an investigation to be made as may be necessary to determine whether a violation of a provision of NRS 338.010 to 338.090, inclusive, or NAC 338.005 to 338.125, inclusive, was committed in the course of the execution of a contract for a public work that was awarded by the awarding body. Such an investigation must commence and conclude within a reasonable time, except that the investigation must not exceed 30 days unless an additional period of time is approved by the Labor Commissioner. Upon commencing an investigation upon its own initiative, an awarding body shall notify the Labor Commissioner in writing as soon as is practicable.

2. If a contractor or subcontractor fails to provide to an awarding body information requested by the awarding body pursuant to subsection 4 of NAC 338.094, the awarding body may request the Labor Commissioner to issue subpoenas to assist the awarding body in its investigation.

3. In making a determination, an awarding body shall consider:

(a) Information contained in any claim or complaint against the contractor or subcontractor that was received by the Labor Commissioner;

(b) Oral or written statements made by employees of the contractor or subcontractor or witnesses during interviews conducted by the awarding body;

(d) The results of any inspection conducted pursuant to NRS 607.150, which may include, without limitation, the inspection of the public work or any business office, plant, pit, yard or physical job site of the contractor or subcontractor, including any location designated by the contractor or subcontractor as a job site to perform work related to and necessary for the public work;

(e) Information obtained through a subpoena issued by the Labor Commissioner pursuant to NRS 607.210; and

(f) Any other information that could reasonably assist the awarding body in determining whether a violation was committed.

4. Upon the conclusion of its investigation, an awarding body shall issue, in writing, the determination of the awarding body and shall:

(a) Except as otherwise provided in subsection 9, submit a copy of the determination issued by the awarding body to the Labor Commissioner;

(b) Serve a copy of the determination issued by the awarding body upon the contractor or subcontractor alleged to have committed the violation;

(c) If the contractor or subcontractor alleged to have committed the violation was not the prime contractor for the public work, serve a copy of the determination issued by the awarding body upon the prime contractor for the public work;

(d) Serve a copy of the determination issued by the awarding body upon the person who filed the complaint; and

(e) Serve a copy of the determination issued by the awarding body upon any other person who filed a claim or a complaint with the Labor Commissioner that related to the investigation.

5. If, after an investigation, an awarding body issues a determination that a contractor or subcontractor has failed to pay the correct wages to workers employed by the contractor or subcontractor in connection with a public work, the awarding body shall withhold and retain the wages due and owing to the workers and any applicable penalties.

6. In addition to submitting a copy of the determination issued by the awarding body to the Labor Commissioner pursuant to subsection 4, the awarding body shall provide to the Labor Commissioner the following information pertaining to the determination issued by the awarding body:

(a) A detailed narrative of the findings of the investigation;

(b) The name and address of the contractor or subcontractor and its responsible officers;

(1) The prime contractor for the public work and its responsible officers; and

(2) Any intermediate subcontractor and the respective responsible officers of that subcontractor;

(d) A copy of the contract for the public work, or an excerpt of the portion of the contract that the Labor Commissioner determines is relevant, which must include, without limitation, information identifying the deadline by which bids on the contract were accepted, the date on which the contract was awarded and the scope of work performed by the contractor or subcontractor;

(e) Copies of any claims or complaints received by the awarding body from the Labor Commissioner relating to the investigation;

(f) Copies of the applicable certified payroll reports and nonperformance payroll reports submitted by the contractor or subcontractor;

(g) If applicable, signed interview statements of employees of the contractor or subcontractor;

(h) If applicable, computations of penalties and back wages for each worker, including, without limitation, the name, address and social security number of the worker;

(i) The identifying number requested from the Labor Commissioner by the public body pursuant to NRS 338.013; and

(j) Any other information gathered during the investigation.

7. If a person who filed a claim or complaint with the Labor Commissioner relating to the investigation that is the subject of the determination issued by the awarding body submits a request to the awarding body to receive the information submitted by the awarding body to the Labor Commissioner pursuant to subsection 6, the awarding body shall provide to the person that information.

8. A person who has been served a copy of a determination issued by an awarding body pursuant to subsection 4 and who disputes the determination issued by the awarding body may file a written objection with the Labor Commissioner within 15 days after the date of service of the determination issued by the awarding body. Such an objection must be accompanied by a short statement of the grounds for the objection and evidence substantiating the objection. The awarding body issuing the determination shall insert a statement to this effect into the determination issued by the awarding body.

9. Unless a written objection is filed with the Labor Commissioner pursuant to subsection 8, an awarding body is not required to submit a copy of a determination to the Labor Commissioner pursuant to subsection 4 if the determination solely concerns the late submittal of a certified payroll report in violation of subsection 6 of NRS 338.070.

(Added to NAC by Labor Comm’r by R115-01, eff. 4-5-2002; A by R207-03, 2-19-2004; R018-18, 6-8-2020)

NAC 338.112 Determination by awarding body: Action by Labor Commissioner; objection to and hearing on modified determination; disposition. (NRS 338.012, 338.015, 607.150)

1. Within 30 days after receipt of a determination issued by an awarding body pursuant to the provisions of NAC 338.110, the Labor Commissioner will:

(a) Return the determination issued by the awarding body to the awarding body with a directive for further investigation;

(b) Modify the determination issued by the awarding body;

(c) Affirm the determination issued by the awarding body and, if any wages or penalties were withheld by the awarding body, direct the awarding body to forward to the Labor Commissioner the sums withheld for disbursement to the workers;

(d) Conduct his or her own investigation which may involve, without limitation, an inspection conducted pursuant to NRS 607.150 of the public work or any business office, plant, pit, yard or physical job site of the contractor or subcontractor, including any location designated by the contractor or subcontractor as a job site to perform work related to and necessary for the public work;

(e) Set the matter that is the subject of the determination issued by the awarding body for an administrative hearing before the Labor Commissioner; or

(f) Decline to assert jurisdiction over the matter that is the subject of the determination issued by the awarding body.

2. If, pursuant to subsection 1, the Labor Commissioner:

(a) Modifies a determination issued by an awarding body, the Labor Commissioner will serve a copy of the modified determination by mail on the contractor or subcontractor who was the subject of the investigation and any person who filed a claim or complaint with the Labor Commissioner relating to the investigation.

(b) Affirms a determination issued by an awarding body, the Labor Commissioner will issue an order affirming the determination issued by the awarding body. The order affirming the determination issued by the awarding body is deemed to be the final order of the Labor Commissioner on the matter.

(c) Sets the matter that is the subject of the determination issued by the awarding body for an administrative hearing before the Labor Commissioner, the Labor Commissioner will conduct a hearing on the matter.

(d) Declines to assert jurisdiction over the matter that is the subject of the determination, the Labor Commissioner will issue an order dismissing the determination issued by the awarding body. The order dismissing the determination issued by the awarding body is deemed to be the final order of the Labor Commissioner on the matter.

3. A person who has been served a copy of a modified determination pursuant to paragraph (a) of subsection 2 and who disputes the modified determination may file a written objection with the Labor Commissioner within 15 days after the date of service of the modified determination. Such an objection must be accompanied by a short statement of the grounds for the objection and evidence substantiating the objection.

4. If an objection to a determination issued by an awarding body and modified by the Labor Commissioner is filed with the Labor Commissioner pursuant to subsection 3, the Labor Commissioner will, within 15 days after the period for objection has expired, schedule a hearing on the modified determination if:

(a) The modified determination included an assessment of back wages owed to workers, an administrative penalty or fine, or a recommendation of the imposition of a period of disqualification from public works against a contractor or subcontractor pursuant to NRS 338.017; or

(b) The modified determination did not include an assessment of back wages owed to workers, an administrative penalty or fine, or a recommendation of the imposition of a period of disqualification from public works against a contractor or subcontractor pursuant to NRS 338.017, but the Labor Commissioner determines that the objection has merit on other grounds after reviewing the determination and the information submitted to him or her by the awarding body pursuant to subsection 6 of NAC 338.110.

5. If:

(a) An objection is filed with the Labor Commissioner that does not meet the requirements of subsection 3; or

(b) An objection was not filed with the Labor Commissioner,

Ê the determination issued by the awarding body and modified by the Labor Commissioner is deemed to be the final order of the Labor Commissioner on the matter.

6. If, after holding a hearing on a determination issued by an awarding body or a modified determination, the Labor Commissioner finds that a contractor or subcontractor violated a provision of NRS 338.010 to 338.090, inclusive, or NAC 338.005 to 338.125, inclusive, the Labor Commissioner will issue a written decision, which will include, without limitation, the relevant facts and applicable laws on which the decision was based. The Labor Commissioner will serve a copy of the decision by certified mail on the contractor or subcontractor who was the subject of the investigation and any person who filed a claim or complaint with the Labor Commissioner relating to the investigation. A decision issued by the Labor Commissioner pursuant to this subsection is deemed to be the final order of the Labor Commissioner on the matter.

(Added to NAC by Labor Comm’r by R115-01, eff. 4-5-2002; A by R207-03, 2-19-2004; R018-18, 6-8-2020)

NAC 338.114 Determination by Labor Commissioner: Issuance and service; objection to and hearing on determination; disposition. (NRS 338.012, 338.015)

1. If, after an investigation conducted by the Labor Commissioner on a complaint filed pursuant to NAC 338.107 or on a complaint filed against an awarding body, the Labor Commissioner finds that a person, including, without limitation, the officers, agents or employees of a public body, has violated a provision of NRS 338.010 to 338.090, inclusive, or NAC 338.005 to 338.125, inclusive, the Labor Commissioner will issue a written determination, which will include, without limitation, the relevant facts and applicable laws on which the determination was based. The Labor Commissioner will serve a copy of the determination by mail on:

(a) The person who was alleged to have committed the violation;

(b) If a subcontractor is alleged to have committed the violation:

(1) The prime contractor for the public work; and

(2) Any intermediate subcontractors; and

2. A person who has been served a copy of a determination issued by the Labor Commissioner pursuant to subsection 1 and who disputes the determination may file a written objection with the Labor Commissioner within 15 days after the date of service of the determination. Such an objection must be accompanied by a short statement of the grounds for the objection and evidence substantiating the objection. The Labor Commissioner will insert a statement to this effect into the determination issued by the Labor Commissioner.

3. If an objection to a determination issued by the Labor Commissioner pursuant to subsection 1 is filed with the Labor Commissioner that meets the requirements of subsection 2, the Labor Commissioner will, within 15 days after that period for objection has expired, schedule a hearing on the determination if:

(a) The determination issued by the Labor Commissioner included an assessment of back wages owed to workers, an administrative penalty or fine, or an imposition of a period of disqualification from public works against a contractor or subcontractor pursuant to NRS 338.017; or

(b) The determination issued by the Labor Commissioner did not include an assessment of back wages owed to workers, an administrative penalty or fine, or an imposition of a period of disqualification from public works against a contractor or subcontractor pursuant to NRS 338.017, but the Labor Commissioner determines that the objection has merit on other grounds.

4. If:

(a) An objection to a determination issued by the Labor Commissioner is filed with the Labor Commissioner that does not meet the requirements of subsection 2; or

(b) An objection was not filed with the Labor Commissioner,

Ê the Labor Commissioner will issue an order affirming the determination issued by the Labor Commissioner. The order affirming the determination issued by the Labor Commissioner is deemed to be the final order of the Labor Commissioner on the matter.

5. If, after holding a hearing scheduled pursuant to subsection 3 on a determination issued by the Labor Commissioner pursuant to subsection 1, the Labor Commissioner finds that a person, including, without limitation, the officers, agents or employees of a public body, has violated a provision of NRS 338.010 to 338.090, inclusive, or NAC 338.005 to 338.125, inclusive, the Labor Commissioner will issue a written decision, which will include, without limitation, the relevant facts and applicable laws on which the decision was based. The Labor Commissioner will serve a copy of the decision by certified mail on the person who is found to have committed the violation and any other person who filed a claim or complaint with the Labor Commissioner relating to the investigation. A decision issued by the Labor Commissioner pursuant to this subsection is deemed to be the final order of the Labor Commissioner on the matter.

(Added to NAC by Labor Comm’r by R115-01, eff. 4-5-2002; A by R207-03, 2-19-2004; R018-18, 6-8-2020)

NAC 338.116 Hearing on determination: Procedure; exception. (NRS 338.012, 338.015) Except as otherwise provided in this section, at a hearing held by the Labor Commissioner on a determination issued by an awarding body or the Labor Commissioner, the Labor Commissioner will use the procedures provided pursuant to chapter 233B of NRS and chapter 607 of NAC to conduct the hearing. The provisions of subsection 8 of NAC 607.300 do not apply to a complaint filed pursuant to NAC 338.107 or to an investigation or hearing regarding whether a violation of a provision of NRS 338.010 to 338.090, inclusive, or NAC 338.005 to 338.125, inclusive, has occurred.

(Added to NAC by Labor Comm’r by R115-01, eff. 4-5-2002; A by R207-03, 2-19-2004; R018-18, 6-8-2020)

Penalties

NAC 338.120 Sliding scale of penalties. (NRS 338.012, 338.060)

1. If the State Contractors’ Board has established a monetary limit on the license of a prime contractor pursuant to NRS 624.220, the amount of any forfeiture assessed against the prime contractor pursuant to NRS 338.060 must be:

(a) If the monetary limit is less than $250,000, $20 for each calendar day or portion thereof.

(b) If the monetary limit is $250,000 or more but less than $500,000, $30 for each calendar day or portion thereof.

(d) If the monetary limit is $750,000 or more, $50 for each calendar day or portion thereof.

2. If the State Contractors’ Board has not established a monetary limit on the license of a prime contractor or has removed a monetary limit established on the license of the prime contractor, the amount of the penalty imposed against the prime contractor pursuant to NRS 338.060 must be $50 for each calendar day or portion thereof.

(Added to NAC by Labor Comm’r by R096-97, eff. 5-3-99; A by R115-01, 4-5-2002; R207-03, 2-19-2004)

NAC 338.125 Temporary disqualification of contractor or subcontractor. (NRS 338.012, 338.017)

1. If multiple periods of disqualification are imposed against a contractor or subcontractor pursuant to NRS 338.017, the periods of disqualification must run consecutively.

2. The Labor Commissioner will maintain a list of contractors and subcontractors that have been disqualified temporarily from being awarded a contract for a public work pursuant to NRS 338.017 and will make that information available to the public upon request, including, without limitation, on the website that the Labor Commissioner maintains on the Internet or its successor.

(Added to NAC by Labor Comm’r by R115-01, eff. 4-5-2002)

PROCEDURES FOR AWARDING CONTRACTS

General Provisions

NAC 338.130 Definitions. (NRS 338.1375, 338.13847, 341.070, 341.110) As used in NAC 338.130 to 338.450, inclusive, unless the context otherwise requires, the words and terms defined in NAC 338.132 to 338.144, inclusive, have the meanings ascribed to them in those sections.

(Added to NAC by Pub. Works Bd. by R095-04, eff. 12-15-2004; A by R097-09, 10-15-2010; R100-11, 5-30-2012)

NAC 338.132 “Administrative proceeding” defined. (NRS 338.1375, 338.1376) “Administrative proceeding” means a hearing for which there is:

1. A notice of hearing in a contested case;

2. A right to be represented by counsel;

3. An opportunity to respond and present evidence;

4. A record of the proceeding; and

5. A finding of fact and a conclusion of law.

(Added to NAC by Pub. Works Bd. by R095-04, eff. 12-15-2004)

NAC 338.133 “Administrator” defined. (NRS 338.1375, 338.1376, 341.070, 341.110) “Administrator” means the Administrator of the Division.

(Added to NAC by Pub. Works Bd. by R100-11, eff. 5-30-2012)

NAC 338.134 “Board” defined. (NRS 338.1375, 338.1376) “Board” means the State Public Works Board.

(Added to NAC by Pub. Works Bd. by R095-04, eff. 12-15-2004)

NAC 338.135 “Division” defined. (NRS 338.1375, 338.1376, 341.070, 341.110) “Division” means the State Public Works Division of the Department of Administration.

(Added to NAC by Pub. Works Bd. by R100-11, eff. 5-30-2012)

NAC 338.136 “Final completion” defined. (NRS 338.1375, 338.1376) “Final completion” means that 100 percent of the work of the contract and general conditions of the contract are satisfied.

(Added to NAC by Pub. Works Bd. by R095-04, eff. 12-15-2004)

NAC 338.140 “Prime contractor” defined. (NRS 338.1375, 338.1376) “Prime contractor” has the meaning ascribed to it in NRS 338.010.

(Added to NAC by Pub. Works Bd. by R095-04, eff. 12-15-2004)

NAC 338.142 “Public work” defined. (NRS 338.1375, 338.1376, 341.070, 341.110) “Public work” means a public work, as defined in NRS 338.010, that is under the jurisdiction of the Division.

(Added to NAC by Pub. Works Bd. by R095-04, eff. 12-15-2004; A by R100-11, 5-30-2012)

NAC 338.144 “Substantial completion” defined. (NRS 338.1375, 338.1376) “Substantial completion” means that the construction of a public work is, in accordance with the contract documents, sufficiently complete that the owner can occupy and utilize the public work for its intended use.

(Added to NAC by Pub. Works Bd. by R095-04, eff. 12-15-2004)

Qualification of Bidders: Prime Contractors

NAC 338.150 Definitions. (NRS 338.1375, 338.13895, 341.110) As used in NAC 338.150 to 338.290, inclusive, unless the context otherwise requires, the words and terms defined in NAC 338.170 to 338.231, inclusive, have the meanings ascribed to them in those sections.

(Added to NAC by Pub. Works Bd. by R085-01, eff. 12-17-2001; A by R095-04, 12-15-2004; R099-09, 10-15-2010)

NAC 338.170 “Bidder” defined. (NRS 338.1375) “Bidder” means a prime contractor who has been determined to be qualified to bid on one or more contracts for public works pursuant to NAC 338.260.

(Added to NAC by Pub. Works Bd. by R085-01, eff. 12-17-2001; A by R095-04, 12-15-2004)

NAC 338.181 “Business entity associated with the principal personnel” defined. (NRS 338.1375) “Business entity associated with the principal personnel” means a business entity in which a principal personnel of a prime contractor is or was the sole proprietor, a partner, the chair or a member of the board of directors, or a shareholder owning 10 percent or more of outstanding stock in the business entity.

(Added to NAC by Pub. Works Bd. by R095-04, eff. 12-15-2004)

NAC 338.190 “Committee” defined. (NRS 338.1375) “Committee” means the committee appointed pursuant to NAC 338.260.

(Added to NAC by Pub. Works Bd. by R085-01, eff. 12-17-2001)

NAC 338.200 “Cost category” defined. (NRS 338.1375) “Cost category” means the category of public works set forth in paragraph (b) of subsection 2 of NAC 338.250 for which a prime contractor may apply to be qualified for a 2-year period to submit bids.

(Added to NAC by Pub. Works Bd. by R085-01, eff. 12-17-2001; A by R095-04, 12-15-2004)

NAC 338.220 “Principal personnel” defined. (NRS 338.1375) “Principal personnel” means the owner, partner and any corporate officer and any qualified employee listed on the contractor’s license of the prime contractor.

(Added to NAC by Pub. Works Bd. by R085-01, eff. 12-17-2001; A by R095-04, 12-15-2004)

NAC 338.231 “Successfully completed project” defined. (NRS 338.1375) “Successfully completed project” means that the contract or the portion of the contract for which the prime contractor was responsible was completed:

1. Within the deadline for completion specified in the contract, as adjusted by any change order or extension of time granted; and

2. In compliance with any remaining contractual requirements, including close-out documents, within 90 days after the substantial completion of the contract.

(Added to NAC by Pub. Works Bd. by R095-04, eff. 12-15-2004)

NAC 338.240 Criteria for qualification for public work with estimated cost of $100,000 or more; pertinent documentation and information; exceptions. (NRS 338.1375, 338.13895, 341.070, 341.110)

1. Except as otherwise provided in subsection 3, the following criteria must be used to determine whether a prime contractor is qualified to bid on a contract for one or more public works for which the estimated cost is $100,000 or more:

(a) The financial ability of the prime contractor to perform the contract. The prime contractor must include with the application submitted pursuant to NAC 338.250:

(1) Evidence that the prime contractor is properly licensed pursuant to chapter 624 of NRS.

(2) A statement regarding whether the prime contractor, the principal personnel or any business entity associated with the principal personnel has filed as a debtor under the United States Bankruptcy Code during the 5 years immediately preceding the date of the application.

(3) A certified statement of the bonding capacity of the prime contractor obtained for a surety which is authorized to issue bid, performance and payment bonds in this State and which:

(I) Has received a rating of “A-” or better, as determined by A.M. Best Company of Oldwick, New Jersey; and

(II) For a contract that:

(i) Is more than $5,000,000, is classified in a financial size category of “VII” or better, as determined by A.M. Best Company of Oldwick, New Jersey, and is included on the list of approved sureties in Circular 570 of the United States Department of the Treasury; or

(ii) Is $5,000,000 or less, is included on the list of approved sureties in Circular 570 of the United States Department of the Treasury.

Ê The requirements of sub-subparagraphs (I) and (II) do not apply if the surety is Lloyd’s of London. The certified statement must specify the single and aggregate limits on and the available bonding capacity of the prime contractor to work on a public work.

(b) The qualifications of the principal personnel of the prime contractor. The prime contractor must include in the application submitted pursuant to NAC 338.250 a description of the professional qualifications and relevant experience of the principal personnel of the prime contractor and list not more than 10 public works and private construction projects, or any combination thereof, within the cost category for which the prime contractor is applying that have been successfully completed by the principal personnel. For each such successfully completed project included on the list, the prime contractor must provide:

(1) The name of the project;

(2) The scope of the project or work done;

(3) The dollar amount of the project; and

(4) The month and year of substantial completion and final completion of the project.

(c) Whether the prime contractor, the principal personnel or any business entity associated with the principal personnel has been found to be in breach of contract by a court of competent jurisdiction or through binding arbitration during the 5 years immediately preceding the date of the application. For each such action, the prime contractor must include in the application submitted pursuant to NAC 338.250 a description of:

(1) The circumstances surrounding the action;

(2) Whether any liquidated damages were imposed in connection with the action; and

(3) Any judgment entered against the prime contractor, the principal personnel or business entity associated with the principal personnel relating to the action.

(d) Whether the prime contractor, the principal personnel or any business entity associated with the principal personnel has been disqualified from the award of any contract pursuant to NRS 338.017, 338.13845 or 338.13895 during the 5 years immediately preceding the date of the application.

(e) The past performance history of the prime contractor, the principal personnel and each business entity associated with the principal personnel during the 5 years immediately preceding the date of the application. The prime contractor must include in the application submitted pursuant to NAC 338.250:

(1) A description and copy of any civil judgment, findings of fact, administrative proceeding, criminal conviction or binding arbitration relating to a public work or to a violation of any law pertaining to discrimination in employment with respect to construction work performed by the prime contractor, wage and hour standards, prevailing wage rates or licensing either against or in favor of the prime contractor, principal personnel or business entity associated with the principal personnel. For each such judgment, findings, proceeding, conviction or arbitration, the prime contractor must provide:

(I) The name of the project;

(II) The scope of the project or work done;

(III) The circumstances surrounding the judgment, findings, proceeding, conviction or arbitration;

(IV) Whether any liquidated damages were imposed in connection with the judgment, findings, proceeding, conviction or arbitration; and

(V) The outcome of the judgment, findings, proceeding, conviction or arbitration.

(2) A list of all public works and private construction projects undertaken or completed by the prime contractor, principal personnel or business entity associated with the principal personnel during the 5 years immediately preceding the date of the application for which the cost exceeded $25,000 and for which:

(I) The prime contractor, principal personnel or business entity associated with the principal personnel failed to substantially complete the contract within the deadline for completion of the project specified in the contract, as adjusted by any change order or extension of time granted;

(II) The prime contractor, principal personnel or business entity associated with the principal personnel failed to complete any remaining requirements of the contract within 90 days after substantial completion of the contract; or

(III) The prime contractor, principal personnel or business entity associated with the principal personnel failed to complete the contract and the remaining work on the project was performed by another person.

(3) If the application is for qualification for a 2-year period, a list of not more than 10 public works and private construction projects, or any combination thereof, that the prime contractor has successfully completed during the 5 years immediately preceding the date of the application and for which the cost of each of those projects is within the cost category for which the prime contractor seeks qualification to submit bids. For each project included on the list, the prime contractor must provide:

(I) The name of the project;

(II) The location of the project;

(III) The cost of the project;

(IV) A brief explanation of the type of work performed on the project; and

(V) The name, address and telephone number of the owner of the project, the owner’s project manager, and the architect or engineer of the project.

(4) If the application is for qualification on a specific public work, a list of all public works and private construction projects undertaken or completed by the prime contractor during the 5 years immediately preceding the date of the application for which the level of complexity or special requirements of the project were similar to the complexity or special requirements specified by the Division in the application for the specific public work. For each project included on the list, the prime contractor must provide:

(I) The name of the project;

(II) The location of the project;

(III) A brief explanation of the type of work performed on the project; and

(IV) The name, address and telephone number of the owner of the project, the owner’s project manager, and the architect or engineer of the project.

(f) Whether the prime contractor, the principal personnel or any business entity associated with the principal personnel has been disciplined or fined by the State Contractors’ Board or another state or federal agency for conduct that relates to the ability of the prime contractor to perform the work.

2. In addition to the information provided by a prime contractor:

(a) Any other verifiable information relating to the criteria set forth in subsection 1 that is provided to or discovered by the Division or its employees regarding the prime contractor may be used to determine whether the prime contractor is qualified to bid on one or more contracts for public works for which the estimated cost is $100,000 or more; and

(b) Each final evaluation of the performance of the prime contractor on a public work of this State that was provided to the prime contractor pursuant to NAC 338.285 on or after September 18, 2008, and within the 5 years immediately preceding the date of the application will be used to determine whether the prime contractor is qualified to bid on one or more contracts for public works for which the estimated cost is $100,000 or more.

3. The criteria set forth in subsection 1 are not required to be used if:

(a) The Department of Transportation requested that bidders on the contract for the public work be qualified to bid on the contract pursuant to NRS 408.333; and

(b) The public work involves the construction, reconstruction, improvement or maintenance of highways pursuant to this chapter, chapter 408 of NAC or chapter 338 or 408 of NRS.

4. As used in this section, “highway” has the meaning ascribed to it in NRS 408.070.

(Added to NAC by Pub. Works Bd. by R085-01, eff. 12-17-2001; A by R095-04, 12-15-2004; R189-07, 4-17-2008; R071-08, 9-18-2008; R099-09 & R100-09, 10-15-2010; R100-11 & R101-11, 5-30-2012; R075-18, 12-19-2018)

NAC 338.245 Criteria for qualification for public work with estimated cost of less than $100,000; pertinent documentation and information. (NRS 338.1375, 338.13895, 341.070, 341.110)

1. The following criteria must be used to determine whether a prime contractor is qualified to bid on a contract for one or more public works for which the estimated cost is less than $100,000:

(a) The financial ability of the prime contractor to perform the contract. The prime contractor must include with the application submitted pursuant to NAC 338.250:

(1) Evidence that the prime contractor is properly licensed pursuant to chapter 624 of NRS.

(2) A statement regarding whether the prime contractor, principal personnel or any business entity associated with the principal personnel has filed as a debtor under the United States Bankruptcy Code during the 5 years immediately preceding the date of the application.

(b) Whether the prime contractor, the principal personnel or any business entity associated with the principal personnel has been disqualified from the award of any contract pursuant to NRS 338.017, 338.13845 or 338.13895 during the 5 years immediately preceding the date of the application.

2. In addition to the information provided by a prime contractor, any other verifiable information relating to the criteria set forth in subsection 1 that is provided to or discovered by the Division or its employees regarding the prime contractor may be used to determine whether the prime contractor is qualified to bid on one or more contracts for public works for which the estimated cost is less than $100,000.

(Added to NAC by Pub. Works Bd. by R099-09, eff. 10-15-2010; A by R100-11, 5-30-2012; R075-18, 12-19-2018)

NAC 338.250 Application for qualification; eligibility to bid on public work. (NRS 338.1375, 338.1379, 338.13844, 338.13847, 341.070, 341.110)

1. To qualify to bid on one or more contracts for public works, a prime contractor must:

(a) Submit an application to the Administrator on a form prescribed and provided by the Board.

(b) Be qualified before bids are required to be submitted for a public work on which the prime contractor wishes to bid. The Division shall not delay the opening of bids on a public work pending the determination or appeal of the qualification of a prime contractor who wishes to bid on the public work.

2. The Division shall specify:

(a) In the application for a specific public work, any special requirements for the specific public work that the Division prescribes.

(b) In the application for qualification for a 2-year period, the cost categories:

(1) Of less than $100,000;

(2) Of $100,000 to $1,000,000;

(3) Of $1,000,001 to $5,000,000; and

(4) Of more than $5,000,000,

Ê for which a prime contractor may be qualified, which are based on the estimated cost of an individual public work. If a prime contractor is qualified to bid on public works in one of the cost categories specified in this subsection, the prime contractor is eligible to bid on public works in any lower cost category.

3. If the application is for qualification for a 2-year period, the prime contractor must indicate on the application:

(a) Whether the prime contractor is interested in receiving offers to bid on public works for which the estimated cost is more than $25,000 but less than $100,000; and

(b) The cost category for which the prime contractor seeks to qualify to submit bids.

4. If the prime contractor is qualified to receive the preference set forth in subsection 1 or 2 of NRS 338.13844, the prime contractor must indicate on the application his or her qualification for the preference.

5. An application must contain the signature of the prime contractor who is submitting the application.

6. The submission of a materially incomplete or falsified application or the failure of a prime contractor to disclose information in the application may be grounds for a delay in the qualification of the prime contractor or the denial or revocation of the qualification of a bidder.

(Added to NAC by Pub. Works Bd. by R085-01, eff. 12-17-2001; A by R095-04, 12-15-2004; R189-07, 4-17-2008; R097-09 & R098-09, 10-15-2010; R100-11, 5-30-2012; R075-18, 12-19-2018)

NAC 338.260 Action on application; period of qualification; reapplication after denial of application; denial of request to withdraw application. (NRS 338.1375, 338.1379, 341.070, 341.110)

1. The Administrator shall appoint a committee consisting of a deputy administrator and at least two other employees of the Division to review and score applications submitted pursuant to NAC 338.250 to determine whether a prime contractor is qualified to bid on one or more contracts for public works. Such a determination must be made within 45 days after receipt of the completed application by the Division.

2. The committee shall calculate the scores of applications based on the weights of the criteria set forth in NAC 338.240 or 338.245 that are prescribed by the Board. In addition to the information provided by a prime contractor in his or her application submitted pursuant to NAC 338.250, the committee:

(a) May consider any other verifiable information relating to the criteria set forth in NAC 338.240 or 338.245 that is provided to or discovered by the Division or its employees regarding the application to determine whether the prime contractor is qualified to bid on one or more contracts for public works; and

(b) Shall, for a contract for one or more public works for which the estimated cost is $100,000 or more, consider each final evaluation of the performance of the prime contractor on a public work of this State that was provided to the prime contractor pursuant to NAC 338.285 on or after September 18, 2008, and within the 5 years immediately preceding the date of the application to determine whether the prime contractor is qualified to bid on one or more contracts for public works.

3. If, after reviewing and scoring an application, the committee determines that the prime contractor is:

(a) Qualified, the Administrator shall provide written notice to the prime contractor within 10 days after that determination. If the application was for qualification to bid for a 2-year period, the notice must indicate the date on which the qualification expires and that, for the period of qualification, the prime contractor is qualified to bid on public works for which the estimated cost does not exceed the maximum dollar amount of the cost category for which the prime contractor is qualified to submit bids.

(b) Not qualified, the Administrator shall provide written notice to the prime contractor by certified mail within 10 days after that determination. Pursuant to subsection 3 of NRS 338.1379, the notice must include, without limitation, the reasons for the denial of the application and inform the prime contractor of his or her right to a hearing pursuant to NRS 338.1381 and NAC 338.270.

4. Except as otherwise provided in this subsection and NAC 338.280, the qualification of a prime contractor to bid on contracts for public works expires 2 years after the date on which the committee determines that the prime contractor is qualified. The qualification of a prime contractor for a specific public work expires upon completion of that public work.

5. A prime contractor who applied for qualification for a 2-year period and whose application was denied may not reapply for qualification for a 2-year period until 1 year after the date on which the application was denied or, if the prime contractor appeals the denial of the application, 1 year after the date on which the board of appeals appointed pursuant to NAC 338.270 denies the appeal. Denial of an application for qualification on a specific public work does not prohibit the prime contractor from submitting an application for qualification for a 2-year period or qualification on another specific public work.

6. The Administrator may deny a request by a prime contractor to withdraw his or her application regardless of whether the application is complete. Within 10 days after receipt of notice that his or her request to withdraw the application has been denied, the prime contractor may appeal the decision of the Administrator to deny the request to withdraw the application by filing a request for a hearing with the Board pursuant to NAC 338.270. The request for a hearing must set forth the basis for the appeal. The prime contractor may, at the time the prime contractor files the request for a hearing, submit copies of any documents that support his or her appeal.

(Added to NAC by Pub. Works Bd. by R085-01, eff. 12-17-2001; A by R095-04, 12-15-2004; R071-08, 9-18-2008; R098-09 & R099-09, 10-15-2010; R100-11, 5-30-2012; R075-18, 12-19-2018)

NAC 338.270 Appeal of determination that prime contractor is not qualified; hearings on appeals. (NRS 338.1375)

1. Within 10 days after receipt of notice pursuant to NAC 338.260 that he or she has been determined to be not qualified, a prime contractor may appeal the determination by filing a request for a hearing with the Board. The request must set forth the basis for the appeal. The prime contractor may, at the time the prime contractor files the request, submit copies of any documents that support his or her appeal.

2. The Board shall appoint a board of appeals consisting of three of its members to conduct hearings on appeals filed pursuant to NAC 338.150 to 338.290, inclusive, and shall designate one of the members of the board of appeals to serve as chair.

3. For each such appeal, the board of appeals shall, in accordance with NRS 338.1381:

(a) Set the matter for a hearing;

(b) Provide notice of the hearing; and

4. The board of appeals shall call a hearing to order and act upon any preliminary matters. Unless modified by the board of appeals, the evidence will be presented first by the prime contractor and then by the committee, or a representative thereof. The board of appeals may allow the presentation of additional testimony and evidence from other interested parties.

5. An appeal will be considered submitted for decision after the taking of evidence and oral argument.

6. In conducting the hearing, the board of appeals is not bound by any technical rules of evidence.

7. If a party fails to appear at a hearing and did not request in writing or was not granted a continuance in writing, the board of appeals may hear evidence from those persons present at the hearing and make a decision based on the available record.

8. At any time after a request for a hearing is filed by a prime contractor, any party to the matter may request that the chair of the board of appeals issue a subpoena to compel the attendance of witnesses to testify before the board or for the production of related books, papers and documents.

9. The board of appeals is not bound by the recommendation of the committee formed pursuant to NAC 338.260 or any technical scoring conducted by the committee and may, when rendering its decision, take into consideration such facts and circumstances as may be in the best interests of this State.

(Added to NAC by Pub. Works Bd. by R085-01, eff. 12-17-2001; A by R095-04, 12-15-2004)

NAC 338.280 Revocation of qualification. (NRS 338.1375, 341.070, 341.110)

1. The qualification of a bidder will be revoked if, after an investigation, the committee determines that:

(a) The bidder no longer meets one or more of the criteria set forth in NAC 338.240 or 338.245; or

(b) The application submitted by the bidder contained materially false information or the bidder failed to disclose materially relevant information in the application,

Ê unless, pursuant to this section, the bidder appeals the determination of the committee within the time prescribed for an appeal in subsection 3 and the board of appeals reverses the determination.

2. If the committee determines pursuant to subsection 1 that the qualification of a bidder will be revoked, the committee shall notify the Administrator, in writing, of its determination. After receipt of such notification, the Administrator shall provide written notice by certified mail to the bidder that the qualification of the bidder has been revoked and that the bidder may appeal the revocation. Revocation of the qualification of a bidder becomes effective 10 days after the bidder receives notice of revocation pursuant to this subsection unless the bidder appeals the determination within the time prescribed for an appeal in subsection 3.

3. Within 10 days after receipt of notice of the revocation of his or her qualification pursuant to subsection 2, a bidder may appeal the determination by filing a request for a hearing with the Board. A hearing on the appeal of the revocation of qualification will be conducted by the board of appeals appointed pursuant to NAC 338.270.

4. If the board of appeals concurs with the determination of the committee, revocation of the qualification of the bidder becomes effective upon the decision of the board of appeals.

5. If the qualification of a bidder is revoked, the bidder may reapply for qualification after the period specified in subsection 5 of NAC 338.260 has elapsed, if applicable.

(Added to NAC by Pub. Works Bd. by R085-01, eff. 12-17-2001; A by R099-09, 10-15-2010; R100-11, 5-30-2012)

NAC 338.285 Evaluation of performance of prime contractor on public work with estimated cost of $100,000 or more. (NRS 338.1375, 341.070, 341.110)

1. Within 30 days after the final completion of a public work for which the estimated cost is $100,000 or more, the Division or its designee shall provide the prime contractor on the public work with a copy of an initial evaluation of the performance of the prime contractor on the public work. The initial evaluation must be prepared by the employee of the Division who was primarily responsible for managing the public work and must be approved by the supervisor of the employee.

2. Within 30 days after receipt of an initial evaluation pursuant to subsection 1, a prime contractor may submit to the Division or its designee a response to the initial evaluation, which must include, without limitation, any information or documentation that the prime contractor determines is relevant to the initial evaluation.

3. The Division or its designee shall provide to the prime contractor a copy of the final evaluation of the performance of the prime contractor on the public work:

(a) If the prime contractor submitted a response pursuant to subsection 2, within 30 days after receipt of the response by the Division or its designee.

(b) If the prime contractor did not submit a response pursuant to subsection 2, within 60 days after provision of the initial evaluation to the prime contractor pursuant to subsection 1.

4. The final evaluation of the performance of the prime contractor on the public work:

(a) Must:

(1) Be prepared by the employee of the Division who prepared the initial evaluation and approved by the supervisor of the employee; and

(2) If the prime contractor submitted a response pursuant to subsection 2, include the response as an attachment; and

(b) If the prime contractor submitted a response pursuant to subsection 2, may include any revisions to the initial evaluation that the employee of the Division who prepared the initial evaluation deemed necessary based upon the response.

(Added to NAC by Pub. Works Bd. by R071-08, eff. 9-18-2008; A by R100-11, 5-30-2012; R075-18, 12-19-2018)

NAC 338.290 Notification of Division regarding change to or renewal of license of qualified bidder. (NRS 338.1375, 341.070, 341.110) A prime contractor who has been determined to be qualified as a bidder shall inform the Division within 10 days after any change to, or renewal of, any license issued to the prime contractor pursuant to chapter 624 of NRS.

(Added to NAC by Pub. Works Bd. by R095-04, eff. 12-15-2004; A by R100-11, 5-30-2012)

Qualification of Bidders: Subcontractors

NAC 338.300 Definitions. (NRS 338.1376) As used in NAC 338.300 to 338.410, inclusive, unless the context otherwise requires, the words and terms defined in NAC 338.310 to 338.360, inclusive, have the meanings ascribed to them in those sections.

(Added to NAC by Pub. Works Bd. by R095-04, eff. 12-15-2004)

NAC 338.310 “Business entity associated with the principal personnel” defined. (NRS 338.1376) “Business entity associated with the principal personnel” means a business entity in which the principal personnel of a subcontractor is or was the sole proprietor, a partner, the chair or a member of the board of directors, or a shareholder owning 10 percent or more of outstanding stock in the business entity.

(Added to NAC by Pub. Works Bd. by R095-04, eff. 12-15-2004)

NAC 338.320 “Committee” defined. (NRS 338.1376) “Committee” means the committee appointed pursuant to NAC 338.390.

(Added to NAC by Pub. Works Bd. by R095-04, eff. 12-15-2004)

NAC 338.330 “Cost category” defined. (NRS 338.1376) “Cost category” means the category of public works set forth in NAC 338.380 for which a subcontractor may be required to apply for qualification.

(Added to NAC by Pub. Works Bd. by R095-04, eff. 12-15-2004)

NAC 338.340 “Principal personnel” defined. (NRS 338.1376) “Principal personnel” means the owner and any corporate officer or qualified employee listed on the contractor’s license of the subcontractor.

(Added to NAC by Pub. Works Bd. by R095-04, eff. 12-15-2004)

NAC 338.350 “Subcontractor” defined. (NRS 338.1376) “Subcontractor” has the meaning ascribed to it in NRS 338.010.

(Added to NAC by Pub. Works Bd. by R095-04, eff. 12-15-2004)

NAC 338.360 “Successfully completed project” defined. (NRS 338.1376) “Successfully completed project” means that the construction or the portion of the construction for which the subcontractor was responsible was completed:

1. Within the deadline for completion specified in the contract, as adjusted by any change order or extension of time granted; and

2. In compliance with any remaining contractual requirements, including close-out documents, within 90 days after substantial completion of the contract.

(Added to NAC by Pub. Works Bd. by R095-04, eff. 12-15-2004)

NAC 338.370 Criteria for qualification; pertinent documentation and information; maintenance of public list of subcontractors determined not to be qualified. (NRS 338.1376, 341.070, 341.110)

1. The following criteria will be used to determine whether a subcontractor who submits an application for qualification is qualified pursuant to NRS 338.1376 to be included in a bid:

(a) The financial ability of the subcontractor to perform the contract. The subcontractor must include with his or her application for qualification:

(1) A certified statement of the bonding capacity of the subcontractor obtained from a surety which is authorized to issue bid, performance and payment bonds in this State and which:

(I) Has received a rating of “A-” or better, as determined by A.M. Best Company of Oldwick, New Jersey; and

(II) Is included on the list of approved sureties in Circular 570 of the Department of the Treasury.

Ê The requirements of sub-subparagraphs (I) and (II) do not apply if the surety is Lloyd’s of London. The certified statement must specify the present single and aggregate limits of the subcontractor to work on a public work.

(2) If the subcontractor is going to be performing work for which he or she is required to be licensed pursuant to chapter 624 of NRS, evidence that the subcontractor is properly licensed pursuant to that chapter.

(3) A statement regarding whether the subcontractor, the principal personnel or any business entity associated with the principal personnel has filed as a debtor under the United States Bankruptcy Code during the 5 years immediately preceding the date of the application.

(b) The qualifications of the principal personnel of the subcontractor. The subcontractor must include in his or her application for qualification a description of the professional qualifications and relevant experience of the principal personnel of the subcontractor and list not more than 10 public works and private construction projects, or any combination thereof, within the cost category for which the subcontractor is applying for qualification that have been successfully completed by the principal personnel. For each successfully completed project included on the list, the subcontractor must provide:

(1) The name of the project or the name of the prime contractor on the project;

(2) The scope of the project or the scope of the portion of work within the project for which the principal personnel was responsible;

(3) The dollar amount of the project or the dollar amount of the portion of work within the project for which the principal personnel was responsible; and

(4) The month and year of substantial completion and final completion of the contract or portion of work for which the principal personnel was responsible.

(c) Whether the subcontractor, the principal personnel or any business entity associated with the principal personnel has been found to be in breach of contract by a court of competent jurisdiction or through binding arbitration during the 5 years immediately preceding the date of the application. For each such action, the subcontractor must include in the application for qualification a description of:

(1) The circumstances surrounding the action;

(2) Whether any liquidated damages were imposed in connection with the action; and

(3) Any judgment entered against the subcontractor, principal personnel or business entity associated with the principal personnel relating to the action.

(d) Whether the subcontractor, the principal personnel or any business entity associated with the principal personnel has been disqualified from the award of any contract pursuant to NRS 338.017, 338.1376, 338.13845 or 338.13895 during the 5 years immediately preceding the date of the application.

(e) The past performance history of the subcontractor, the principal personnel and each business entity associated with the principal personnel during the 5 years immediately preceding the date of the application. The subcontractor must include in the application for qualification:

(1) A description and copy of any civil judgment, findings of fact, administrative proceeding, criminal conviction or binding arbitration relating to a public work or to a violation of any law pertaining to discrimination in employment with respect to construction work performed by the subcontractor, wage and hour standards, prevailing wage rates or licensing either against or in favor of the subcontractor, principal personnel or business entity associated with the principal personnel. For each such judgment, findings, proceeding, conviction or arbitration, the subcontractor must provide:

(I) The name of the project;

(II) The scope of the project or work done;

(III) The circumstances surrounding the judgment, findings, proceeding, conviction or arbitration;

(IV) Whether any liquidated damages were imposed in connection with the judgment, findings, proceeding, conviction or arbitration; and

(V) The outcome of the judgment, findings, proceeding, conviction or arbitration.

(2) A list of all public works and private construction projects undertaken or completed by the subcontractor, principal personnel or business entity associated with the principal personnel during the 5 years immediately preceding the date of the application for which the cost exceeded $25,000 and for which the subcontractor, principal personnel or business entity associated with the principal personnel failed to complete:

(I) Its portion of the work in a timely manner, as adjusted by any change order or extension of time granted;

(II) Any remaining requirements of the contract or failed to complete its portion of the work within 90 days after substantial completion of the contract; or

(III) Its portion of the work and the remaining work on the project was performed by another person.

(3) A list of not more than 10 public works and private construction projects, or any combination thereof, on which the subcontractor has successfully completed his or her portion of the work during the 5 years immediately preceding the date of the application which is within the cost category for which the subcontractor seeks qualification. For each project included on the list, the subcontractor must provide:

(I) The name of the project;

(II) The location of the project;

(III) The cost of the portion of the work for which the subcontractor, the principal personnel and each business entity associated with the principal personnel were responsible;

(IV) A brief explanation of the type of work performed on the project; and

(V) The name, address and telephone number of:

(i) The owner of the project;

(ii) The owner’s project manager;

(iii) The architect or engineer of the project;

(iv) The prime contractor for the project; and

(v) The superintendent of the prime contractor for the project.

(f) Whether the subcontractor, the principal personnel or any business entity associated with the principal personnel has been disciplined or fined by the State Contractors’ Board or another state or federal agency for conduct that relates to the ability of the subcontractor to perform the work.

2. In addition to the information provided by the subcontractor pursuant to subsection 1, any other verifiable information relating to the criteria set forth in subsection 1 that is provided to or discovered by the Division or its employees regarding the subcontractor may be used to determine whether the subcontractor is qualified to be included in a bid pursuant to NRS 338.141.

3. The Division shall maintain a public list of subcontractors that have been determined not to be qualified to be included in a bid pursuant to NRS 338.141.

(Added to NAC by Pub. Works Bd. by R095-04, eff. 12-15-2004; A by R100-11 & R101-11, 5-30-2012; R075-18, 12-19-2018)

NAC 338.380 Application for qualification; disqualification; inclusion of subcontractor in bid. (NRS 338.1376, 341.070, 341.110)

1. If, pursuant to subsection 3 of NRS 338.1376, a subcontractor is required to submit an application for qualification to be included in a bid pursuant to NRS 338.141, the Administrator shall notify the subcontractor of that fact in writing by certified mail. The subcontractor must submit a completed application for qualification to the Administrator, on a form provided by the Board, not later than 30 days after the date on which the subcontractor received the notice. If a completed application for qualification from the subcontractor is not timely received by the Division, the subcontractor shall be deemed to be disqualified for 1 year commencing on the 31st day after the date on which the subcontractor received the notice. This subsection does not preclude the Division from removing a subcontractor pursuant to paragraph (a) of subsection 5 of NRS 338.141.

2. The Division will specify in each application for qualification the cost categories of:

(a) Less than $1,000,000;

(b) One million dollars to $5,000,000; and

Ê for which a subcontractor may be qualified, which are based on the estimated cost of that portion of the work for which the subcontractor will be responsible. If a subcontractor is qualified to be included in a bid pursuant to NRS 338.141 in one of the cost categories specified in this subsection, the subcontractor may be included in a bid pursuant to NRS 338.141 in any lower cost category.

3. A subcontractor must indicate on his or her application for qualification the cost category for which the subcontractor seeks to be qualified to be included in a bid pursuant to NRS 338.141.

4. An application for qualification must contain the original signature of the subcontractor. The Division will not accept a faxed or photocopied application.

5. The submission of a materially incomplete or falsified application for qualification by a subcontractor and the failure of the subcontractor to disclose information required in the application may be grounds for the disqualification of the subcontractor.

6. The Division will not delay the award of bids on a public work pending the determination or appeal of the determination of the qualification of a subcontractor who was included in a bid.

(Added to NAC by Pub. Works Bd. by R095-04, eff. 12-15-2004; A by R100-11, 5-30-2012)

NAC 338.390 Action on application; period of disqualification; reapplication after disqualification; denial of withdrawal of application. (NRS 338.1376, 341.070, 341.110)

1. The Administrator shall appoint a committee consisting of a deputy administrator and at least two other employees of the Division to review and score applications for qualification submitted pursuant to NRS 338.1376 to determine whether a subcontractor is qualified to be included in a bid pursuant to NRS 338.141. Such a determination must be made within 45 days after the date on which the Division receives the completed application for qualification.

2. The committee shall calculate the scores of applications for qualification based on the weights of the criteria set forth in NAC 338.370 that are prescribed by the Board. In addition to the information provided by a subcontractor in an application for qualification, the committee may consider any other verifiable information relating to the criteria set forth in NAC 338.370 that is provided to or discovered by the Division or its employees regarding the application for qualification to determine whether the subcontractor is qualified to be included in a bid pursuant to NRS 338.141.

3. If, after reviewing and scoring an application for qualification, the committee determines that a subcontractor is:

(a) Qualified to be included in a bid pursuant to NRS 338.141, the Administrator shall provide written notice to the subcontractor by certified mail within 10 days after that determination.

(b) Not qualified to be included in a bid pursuant to NRS 338.141, the Administrator shall provide written notice to the subcontractor by certified mail within 10 days after that determination. The notice must include, without limitation, the reasons on which the determination that the subcontractor was not qualified was based and must inform the subcontractor of his or her right to appeal the disqualification pursuant to NRS 338.1381 and NAC 338.400.

4. A subcontractor who is determined not to be qualified to be included in a bid pursuant to NRS 338.141 shall be deemed to be disqualified for 1 year commencing on the date on which the determination is made or, if the subcontractor appeals the determination, the date on which the appeal of the determination is denied.

5. A subcontractor who has been disqualified from participating on a public work and who wishes to be included in a bid pursuant to NRS 338.141 after his or her period of disqualification has ended must submit an application for qualification and be determined to be qualified by the Administrator in accordance with NRS 338.1376 and NAC 338.300 to 338.410, inclusive, before the subcontractor may be included in a bid pursuant to NRS 338.141.

6. The Administrator may prevent a subcontractor from withdrawing his or her application for qualification regardless of whether the application is complete. Within 10 days after receipt of notice denying the withdrawal of the subcontractor’s application for qualification, a subcontractor may appeal the decision by the Administrator to deny the withdrawal of the application by filing a request for a hearing with the Board pursuant to NAC 338.400. The request must set forth the basis for the appeal. The subcontractor may, at the time the subcontractor files the request, submit copies of any documents that support his or her appeal.

(Added to NAC by Pub. Works Bd. by R095-04, eff. 12-15-2004; A by R100-11, 5-30-2012)

NAC 338.400 Appeal of disqualification; hearings on appeals. (NRS 338.1376)

1. Within 10 days after receipt of notice that he or she has been disqualified by the committee from participating on a public work pursuant to NAC 338.390, a subcontractor may appeal the determination by filing a request for a hearing with the Board. The request must set forth the basis for the appeal. The subcontractor may, at the time the subcontractor files the request, submit copies of any documents that support his or her appeal.

2. The Board shall appoint a board of appeals consisting of three of its members to conduct hearings on appeals filed pursuant to NAC 338.300 to 338.410, inclusive, and shall designate one of the members of the board of appeals to serve as chair.

3. For each such appeal, the board of appeals shall, in accordance with NRS 338.1381:

(a) Set the matter for a hearing;

(b) Provide notice of the hearing; and

4. The board of appeals shall call a hearing to order and act upon any preliminary matters. Unless modified by the board of appeals, the evidence will be presented first by the subcontractor and then by the committee, or a representative thereof. The board of appeals may allow the presentation of additional testimony and evidence from other interested parties.

5. An appeal will be considered submitted for decision after the taking of evidence and oral argument.

6. In conducting the hearing, the board of appeals is not bound by any technical rules of evidence.

8. At any time after a request for a hearing is filed by a subcontractor, any party to the matter may request that the chair of the board of appeals issue a subpoena to compel the attendance of witnesses to testify before the board or for the production of related books, papers and documents.

9. The board of appeals is not bound by the recommendation of the committee formed pursuant to NAC 338.390 or any technical scoring conducted by the committee and may, when rendering its decision, take into consideration such facts and circumstances as may be in the best interests of this State.

(Added to NAC by Pub. Works Bd. by R095-04, eff. 12-15-2004)

NAC 338.410 Revocation of qualification. (NRS 338.1376, 341.070, 341.110)

1. The committee shall revoke its determination that a subcontractor is qualified to be included in a bid pursuant to NRS 338.141 if, after an investigation, the committee finds that:

(a) The subcontractor no longer meets one or more of the criteria set forth in NAC 338.370; or

(b) The application for qualification submitted by the subcontractor contained materially false information or the subcontractor failed to disclose materially relevant information in the application.

2. If the committee determines pursuant to subsection 1 that the qualification of a subcontractor must be revoked, the committee shall notify the Administrator, in writing, of its determination. After receipt of such notification, the Administrator shall provide written notice by certified mail to the subcontractor that the qualification of the subcontractor has been revoked and that the subcontractor may appeal the revocation. Revocation of the qualification of a subcontractor becomes effective 10 days after the subcontractor receives notice of revocation pursuant to this subsection unless the subcontractor appeals the determination within the time prescribed for an appeal in subsection 3.

3. Within 10 days after receipt of notice of the revocation of his or her qualification pursuant to subsection 2, a subcontractor may appeal the determination by filing a request for a hearing with the Board. A hearing on the appeal of the revocation of qualification must be conducted by the board of appeals appointed pursuant to NAC 338.400.

4. If the board of appeals concurs with the determination of the committee, revocation of the qualification of the subcontractor becomes effective upon the decision of the board of appeals.

5. If the qualification of a subcontractor is revoked, the subcontractor may reapply for qualification after the period of disqualification specified in subsection 4 of NAC 338.390 has elapsed.

(Added to NAC by Pub. Works Bd. by R095-04, eff. 12-15-2004; A by R100-11, 5-30-2012)

Preference for Bids on Smaller Contracts Submitted by Local Businesses Owned and Operated by Veterans With Service-Connected Disabilities

NAC 338.420 Definitions. (NRS 338.1375, 338.13844, 338.13847, 341.070, 341.110) As used in NAC 338.420 to 338.460, inclusive, unless the context otherwise requires, the words and terms defined in NAC 338.425, 338.430 and 338.440 have the meanings ascribed to them in those sections.

(Added to NAC by Pub. Works Bd. by R075-18, eff. 12-19-2018)

NAC 338.425 “Business owned and operated by a veteran with a service-connected disability” defined. (NRS 338.1375, 338.13844, 338.13847, 341.070, 341.110) “Business owned and operated by a veteran with a service-connected disability” has the meaning ascribed to it in NRS 338.13841.

(Added to NAC by Pub. Works Bd. by R075-18, eff. 12-19-2018)

NAC 338.430 “Local business” defined. (NRS 338.1375, 338.13844, 338.13847, 341.070, 341.110) “Local business” has the meaning ascribed to it in NRS 333.3363.

(Added to NAC by Pub. Works Bd. by R075-18, eff. 12-19-2018)

NAC 338.440 “Veteran with a service-connected disability” defined. (NRS 338.1375, 338.13844, 338.13847, 341.070, 341.110) “Veteran with a service-connected disability” has the meaning ascribed to it in NRS 338.13843.

(Added to NAC by Pub. Works Bd. by R075-18, eff. 12-19-2018)

NAC 338.450 Preference for public work with estimated cost of $100,000 or less: Application; maintenance and posting of list of businesses qualified to receive preference. (NRS 338.1375, 338.13844, 338.13847, 341.070, 341.110)

1. To qualify to receive the preference set forth in subsection 1 of NRS 338.13844, a business must:

(a) Submit an application to the Administrator on a form prescribed and provided by the Board; and

(b) Certify in writing on the application and include with the application documentation evidencing that the business is:

(1) A local business; and

(2) A business owned and operated by a veteran with a service-connected disability.

2. The Division shall:

(a) Compile and maintain a list of the businesses that the Administrator has determined are qualified to receive the preference set forth in subsection 1 of NRS 338.13844; and

(b) Post the list on the Internet website maintained by the Division.

(Added to NAC by Pub. Works Bd. by R097-09, eff. 10-15-2010; A by R100-11, 5-30-2012; R075-18, 12-19-2018)

NAC 338.460 Preference for public work with estimated cost of more than $100,000 but less than $250,000: Application; maintenance and posting of list of businesses qualified to receive preference. (NRS 338.1375, 338.13844, 338.13847, 341.070, 341.110)

1. To qualify to receive the preference set forth in subsection 2 of NRS 338.13844, a business must:

(a) Submit an application to the Administrator on a form prescribed and provided by the Board; and

(b) Certify in writing on the application and include with the application documentation evidencing that the business is:

(1) A local business; and

(2) A business owned and operated by a veteran with a service-connected disability that has been determined to be 50 percent or more by the United States Department of Veterans Affairs.

2. The Division shall:

(a) Compile and maintain a list of the businesses that the Administrator has determined are qualified to receive the preference set forth in subsection 2 of NRS 338.13844; and

(b) Post the list on the Internet website maintained by the Division.

(Added to NAC by Pub. Works Bd. by R075-18, eff. 12-19-2018)

CONTRACTS INVOLVING CONSTRUCTION MANAGERS AT RISK

Construction Managers at Risk

NAC 338.500 Qualifications. (NRS 341.070, 341.110) To qualify to enter into a contract with the Division for preconstruction services and to construct a public work, a construction manager at risk must:

1. Be qualified to bid on a public work of the State pursuant to NRS 338.1379; and

2. Satisfy the criteria set forth in NRS 338.1691.

(Added to NAC by Pub. Works Bd. by R098-11, eff. 5-30-2012)

NAC 338.510 Requests for proposals. (NRS 341.070, 341.110)

1. The Administrator of the Division shall advertise for proposals for a construction manager at risk by publishing a request for proposals in the manner set forth in subsection 1 of NRS 338.1692.

2. The request for proposals published pursuant to subsection 1 must include:

(a) A statement setting forth that the construction manager at risk must be qualified to bid on a public work of the State pursuant to NRS 338.1379 before submitting a proposal;

(b) The information set forth in subsection 2 of NRS 338.1692; and

(c) A statement that the proposed form of the contract to assist in the preconstruction of the public work and to construct the public work is available for review on the Division’s website.

(Added to NAC by Pub. Works Bd. by R098-11, eff. 5-30-2012; A by R075-18, 12-19-2018)

NAC 338.520 Submission of proposals. (NRS 341.070, 341.110)

1. A proposal submitted in response to a request for proposals published pursuant to NAC 338.510 must include:

(a) A statement of whether the applicant is qualified to bid on a public work of the State pursuant to NRS 338.1379; and

(b) The information required by subsection 3 of NRS 338.1692.

2. Before the merits of a proposal submitted in response to a request for proposals published pursuant to NAC 338.510 are considered, the applicant must confirm that he or she:

(a) Is qualified to bid on a public work of the State pursuant to NRS 338.1379; and

(b) Satisfies the criteria set forth in NRS 338.1691 for qualifying to enter into a contract with the Division for preconstruction services and to construct a public work.

(Added to NAC by Pub. Works Bd. by R098-11, eff. 5-30-2012)

NAC 338.530 Procedure for selection of most qualified applicants. (NRS 341.070, 341.110)

1. The Administrator of the Division shall appoint a ranking panel in accordance with the provisions of subsection 1 of NRS 338.1693. In the manner set forth in subsection 2 of NRS 338.1693, the ranking panel shall rank each proposal submitted by an applicant who satisfies the criteria set forth in NRS 338.1691 and NAC 338.500 for qualifying to enter into a contract with the Division for preconstruction services and to construct a public work.

2. After a ranking panel has ranked proposals pursuant to subsection 1, the Administrator must:

(a) Select at least the two but not more than the five applicants whose proposals received the highest scores for interviews. If the Division did not receive at least two proposals from applicants who satisfy the criteria set forth in NRS 338.1691 and NAC 338.500 for qualifying to enter into a contract with the Division for preconstruction services and to construct a public work, the Division may not enter into a contract with a construction manager at risk.

(b) Notify each applicant selected for an interview that the applicant has been selected for an interview.

(c) Request that each applicant selected for an interview submit to the Administrator a proposed amount of compensation for managing the preconstruction and construction of the public work. The Administrator must not disclose to the interview panel the information submitted pursuant to this paragraph until the interview panel has completed the interview process and assigned a preliminary score to each applicant.

(d) Appoint an interview panel consisting of at least three members, at least two of whom have experience in the construction industry, to interview the applicants. The Administrator may not appoint to the interview panel any person who was appointed to the ranking panel.

3. If, after ranking proposals pursuant to subsection 2 of NRS 338.1693, the ranking panel determines that fewer than two applicants satisfy the criteria set forth in NRS 338.1691 and NAC 338.500, the Division may not enter into a contract with a construction manager at risk.

4. An applicant selected for an interview pursuant to subsection 4 of NRS 338.1693 who qualifies for and wishes to receive from the interview panel the preference described in subsection 3 of NRS 338.1693 must provide to the interview panel:

(a) The applicant’s certificate of eligibility to receive a preference in bidding on public works; and

(b) The affidavit for receiving a preference in bidding on public works which is prescribed by the Board.

5. The interview panel shall rank the proposals submitted by the applicants selected for interviews by evaluating and assigning a preliminary score to each proposal based on the factors and relative weight assigned to each factor that the Division specified in the request for proposals published pursuant to NAC 338.510. When ranking the interviewed applicants, the interview panel may not consider the score assigned to an applicant’s proposal by the ranking panel.

6. After a preliminary score has been assigned to each applicant:

(a) The Administrator must provide to the interview panel each proposed amount of compensation for managing the preconstruction and construction of the public work which was requested pursuant to paragraph (c) of subsection 2, and the interview panel must:

(1) Calculate a score for the proposed amount of compensation by dividing the lowest of all the proposed amounts by the applicant’s proposed amount multiplied by the total possible points available to each applicant; and

(2) Adjust appropriately each applicant’s preliminary score to include the score calculated for the proposed amount of compensation. In adjusting each applicant’s preliminary score pursuant to this subparagraph, the proposed amount of compensation must not exceed 20 percent of the final score of each applicant.

(b) Except as otherwise provided in this paragraph, the interview panel shall assign a relative weight of 5 percent to the possession of a certificate of eligibility to receive a preference in bidding on public works, if the applicant has submitted the information required by subsection 4 and is qualified to receive the preference. If any federal statute or regulation precludes the granting of federal assistance or reduces the amount of that assistance for a particular public work because of the provisions of this paragraph, the provisions of this paragraph do not apply insofar as their application would preclude or reduce federal assistance for the public work. The interview panel may assign the preference described in this paragraph only after all other scoring is complete and only if the assignment of the preference will determine the outcome of the selection of the construction manager at risk.

7. As used in this section:

(a) “Interview panel” means a panel appointed by the Administrator of the Division to interview applicants who have submitted proposals pursuant to subsection 3 of NRS 338.1692 and have been selected for interviews by the public body or its authorized representative pursuant to subsection 4 of NRS 338.1693.

(b) “Ranking panel” means a panel appointed by the Administrator of the Division to rank proposals in accordance with the provisions of subsection 2 of NRS 338.1693.

(Added to NAC by Pub. Works Bd. by R098-11, eff. 5-30-2012)

Contracts Between Construction Managers at Risk and Subcontractors to Provide Labor, Materials or Equipment on Projects

NAC 338.550 Definitions. (NRS 338.16991, 338.16995, 341.070, 341.110) As used in NAC 338.550 to 338.640, inclusive, unless the context otherwise requires, the words and terms defined in NAC 338.555, 338.560 and 338.565 have the meanings ascribed to them in those sections.

(Added to NAC by Pub. Works Bd. by R099-11, eff. 5-30-2012)

NAC 338.555 “Application for qualification” defined. (NRS 338.16991, 338.16995, 341.070, 341.110) “Application for qualification” means an application submitted by a subcontractor to qualify to submit a proposal pursuant to paragraph (a) of subsection 2 of NAC 338.580.

(Added to NAC by Pub. Works Bd. by R099-11, eff. 5-30-2012)

NAC 338.560 “Construction manager at risk” defined. (NRS 338.16991, 338.16995, 341.070, 341.110) “Construction manager at risk” means a contractor licensed pursuant to chapter 624 of NRS who has entered into a contract with a public body to construct a public work pursuant to NRS 338.1696.

(Added to NAC by Pub. Works Bd. by R099-11, eff. 5-30-2012)

NAC 338.565 “Proposal” defined. (NRS 338.16991, 338.16995, 341.070, 341.110) “Proposal” means a proposal for the provision of labor, materials or equipment necessary for the construction of a public work submitted by a subcontractor pursuant to NRS 338.16995.

(Added to NAC by Pub. Works Bd. by R099-11, eff. 5-30-2012)

NAC 338.570 Applicability. (NRS 338.16991, 338.16995, 341.070, 341.110) The provisions of NRS 338.16991 and 338.16995 and NAC 338.550 to 338.640, inclusive, apply only to a subcontract for which the estimated value is at least 1 percent of the total estimated cost of the construction of the public work or $50,000, whichever is greater.

(Added to NAC by Pub. Works Bd. by R099-11, eff. 5-30-2012; A by R075-18, 12-19-2018)

NAC 338.580 Submission of applications for qualification. (NRS 338.16991, 341.070, 341.110)

1. The advertisement for applications for qualification published by a construction manager at risk pursuant to subsection 3 of NRS 338.16991, must state that the construction manager at risk will return unopened a proposal received from a subcontractor who has not qualified to submit a proposal pursuant to NRS 338.16991.

2. To qualify to submit a proposal pursuant to NRS 338.16991, a subcontractor must:

(a) Submit to the construction manager at risk an application for qualification on a form prescribed and provided by the construction manager at risk.

(b) Be qualified by the construction manager at risk pursuant to the provisions of NRS 338.16991 before proposals are required to be submitted to the construction manager at risk for the public work on which the subcontractor wishes to submit a proposal.

3. For the purpose of ensuring that the determination of whether subcontractors are qualified to submit proposals is based on the criteria set forth in subsection 4 of NRS 338.16991, the construction manager at risk must provide to the public body or its authorized representative a copy of the application form used by the construction manager at risk to qualify subcontractors.

4. An application for qualification must:

(a) Contain the original signature of the subcontractor; and

(b) At a minimum, include the following information:

(1) The monetary limit on the applicant’s license established by the State Contractors’ Board pursuant to subsection 2 of NRS 624.220;

(2) A statement of the applicant’s bonding capacity which is obtained from a surety authorized to issue bid, performance and payment bonds in this State;

(3) A description of the applicant’s current workload and schedule;

(4) A balance sheet for the applicant which was prepared within 1 year of the notice to proceed; and

(5) Evidence of a bank account in good standing.

6. A construction manager at risk may not delay the opening of proposals pursuant to NAC 338.630 pending the determination or appeal of the determination of the qualification of a subcontractor who wishes to submit a proposal.

7. A construction manager at risk must determine that at least three subcontractors in each trade or scope of work necessary to provide labor, materials and equipment for a public work are qualified to submit a proposal for the public work, unless the construction manager at risk has obtained the written approval of the public body to qualify fewer than three subcontractors in a particular trade or scope of work.

(Added to NAC by Pub. Works Bd. by R099-11, eff. 5-30-2012)

NAC 338.590 Procedure for determining qualification of applicants. (NRS 338.16991, 341.070, 341.110)

1. The construction manager at risk shall review and evaluate each application for qualification to determine whether the applicant is qualified to submit a proposal for a public work for which the construction manager at risk has entered into a contract with a public body. Not later than 45 days after an applicant has submitted a completed application for qualification, the construction manager at risk must determine whether the applicant is qualified to submit a proposal.

2. A construction manager at risk shall make a determination as to the qualification of each applicant in accordance with the criteria set forth in subsection 4 of NRS 338.16991.

3. In addition to the information provided by a subcontractor in an application for qualification, the construction manager at risk may consider any other verifiable information relating to the criteria set forth in subsection 2 that is provided to or discovered by the construction manager at risk or its employees regarding the application for qualification.

4. If, after reviewing an application for qualification, the construction manager at risk determines that a subcontractor is:

(a) Qualified to submit a proposal, the construction manager at risk shall provide written notice to the subcontractor and the public body or its authorized representative within 10 days after that determination.

(b) Not qualified to submit a proposal, the construction manager at risk shall provide written notice to the subcontractor and the public body or its authorized representative within 10 days after that determination. The notice must include, without limitation, the reasons on which the determination that the subcontractor was not qualified was based and must inform the subcontractor of his or her right to appeal the disqualification pursuant to subsection 7 of NRS 338.16991.

5. If, pursuant to this section, a construction manager at risk determines that a subcontractor is qualified to submit a proposal, the subcontractor is qualified for a period determined by the construction manager at risk, which must not exceed 24 months.

(Added to NAC by Pub. Works Bd. by R099-11, eff. 5-30-2012)

NAC 338.600 Appeal of determination that subcontractor not qualified to submit proposal; hearing. (NRS 338.16991, 341.070, 341.110)

1. Within 10 days after receipt of notice that he or she has been determined by a construction manager at risk to be not qualified to submit a proposal, the subcontractor may appeal the determination by filing a request for a hearing with the public body with whom the construction manager at risk has entered into a contract for the construction of the public work. The request must set forth the basis for the appeal. The subcontractor may, at the time he or she files the request, submit copies of any documents that support the appeal. The subcontractor must provide a copy of the request for a hearing and any supporting documents to the construction manager at risk.

2. For each such appeal, the public body shall, in accordance with NRS 338.1381:

(a) Set the matter for a hearing;

(b) Provide notice of the hearing; and

3. The public body shall call a hearing to order and act upon any preliminary matters. Unless modified by the public body, the evidence will be presented first by the subcontractor and then by the construction manager at risk, or a representative thereof. The public body may allow the presentation of additional testimony and evidence from other interested parties.

4. An appeal will be considered submitted for decision after the taking of evidence and oral argument.

5. In conducting the hearing, the public body is not bound by any technical rules of evidence.

6. If a party fails to appear at a hearing and did not request in writing or was not granted a continuance in writing, the public body may hear evidence from those persons present at the hearing and make a decision based on the available record.

7. At any time after a request for a hearing is filed by a subcontractor, any party to the matter may request that the public body issue a subpoena to compel the attendance of witnesses to testify before the public body or for the production of related books, papers and documents.

8. The public body must issue its decision on the matter during the hearing.

(Added to NAC by Pub. Works Bd. by R099-11, eff. 5-30-2012)

NAC 338.610 Notice of request for proposals. (NRS 338.16995, 341.070, 341.110)

1. The notice of a request for proposals required by subsection 3 of NRS 338.16995 must contain:

(a) The information required by subsection 4 of NRS 338.16995; and

(b) Plans sufficiently complete to allow a subcontractor to submit a meaningful and responsive proposal.

2. Before disseminating to subcontractors the notice of a request for proposals required by subsection 3 of NRS 338.16995, the construction manager at risk must provide to the public body or its authorized representative a copy of the:

(a) Notice and any instructions for proposals; and

(b) Form on which any proposal in response to the request for proposals must be submitted for approval by the public body.

(Added to NAC by Pub. Works Bd. by R099-11, eff. 5-30-2012; A by R075-18, 12-19-2018)

NAC 338.620 Proposals: When considered responsive; process if fewer than three received; envelopes must be time stamped. (NRS 338.16995, 341.070, 341.110)

1. To be considered responsive a proposal must:

(a) Satisfy the requirements of subsection 6 of NRS 338.16995;

(b) Be submitted:

(1) On the form provided by the construction manager at risk pursuant to subsection 3 of NRS 338.16995;

(2) In a sealed envelope; and

(3) By a subcontractor whom the construction manager at risk determined to be qualified in the trade or scope of work for which the proposal was submitted and who attended the preproposal meeting, if such a meeting was held; and

2. If a construction manager at risk has determined that three or more subcontractors are qualified to submit proposals for a trade or scope of work and has received fewer than three proposals for that trade or scope of work at the time proposals are opened, the construction manager at risk may not open any proposal for that trade or scope of work until the construction manager at risk receives from the public body or its authorized representative written directions concerning the manner in which to proceed. The public body has complete discretion to develop the written directions and the construction manager at risk must proceed in a manner consistent with the written directions developed by the public body. If the public body directs the construction manager at risk to solicit additional proposals, a subcontractor that has submitted a proposal may withdraw the proposal.

3. A construction manager at risk shall time stamp all envelopes containing proposals to provide labor, materials or equipment on a public work which are submitted by subcontractor.

(Added to NAC by Pub. Works Bd. by R099-11, eff. 5-30-2012; A by R075-18, 12-19-2018)

NAC 338.630 Proposals: Opening; qualifications; return of proposal that does not satisfy requirements. (NRS 338.16995, 341.070, 341.110)

1. A construction manager at risk shall open proposals submitted by subcontractors who were qualified to submit proposals in accordance with the provisions of subsection 7 of NRS 338.16995.

2. Before the construction manager at risk opens a proposal submitted by a subcontractor, the construction manager at risk must confirm that the proposal was:

(a) Submitted by a subcontractor who was determined to be qualified to submit a proposal in the trade or for the scope of work for which the subcontractor has submitted a proposal and who attended the preproposal meeting, if such a meeting was held;

(b) Submitted on the form provided by the construction manager at risk pursuant to subsection 3 of NRS 338.16995; and

3. If a proposal does not satisfy the requirements of subsection 2, the construction manager at risk must return the proposal unopened to the subcontractor who submitted the proposal.

(Added to NAC by Pub. Works Bd. by R099-11, eff. 5-30-2012; A by R075-18, 12-19-2018)

NAC 338.640 Procedure after opening proposals; evaluation of proposals and selection of subcontractor; meeting with subcontractor not selected upon request; confirmation of compliance with requirements. (NRS 338.16995, 341.070, 341.110)

1. The list compiled and provided to a public body or its authorized representative by a construction manager at risk pursuant to subsection 8 of NRS 338.16995 must contain the name, contact information, and the trade or scope of work, or, if applicable, both the trade and scope of work, of the subcontractor.

2. The construction manager at risk must provide to the public body or its authorized representative a copy of all proposals submitted by the subcontractors, and the public body must maintain a copy of each proposal in the project file for the public work.

3. A construction manager at risk shall evaluate the proposals and select a subcontractor in accordance with the provisions of subsection 9 of NRS 338.16995. The construction manager at risk must record, document and preserve the evaluations of the proposals.

4. If requested, the construction manager at risk must meet with a subcontractor who was not selected to discuss the reasons that the subcontractor was not selected.

5. A public body or its authorized representative must confirm that the construction manager at risk has complied with the requirements of NRS 338.16995 and NAC 338.550 to 338.640, inclusive.

(Added to NAC by Pub. Works Bd. by R099-11, eff. 5-30-2012; A by R075-18, 12-19-2018)