Assembly Bill No. 295–Assemblymen McClain, Claborn, Ohrenschall, Atkinson, Gibbons, Anderson, Andonov, Arberry, Beers, Carpenter, Christensen, Collins, Conklin, Giunchigliani, Grady, Griffin, Hettrick, Knecht, Koivisto, Manendo, Parks, Pierce, Sherer and Williams (by request)
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AN ACT relating to public works; allowing the governing body of a local government, in certain circumstances, to deem a person to be qualified to bid on contracts for public works of the local government; establishing requirements relating to the advertisement of the acceptance of certain applications to qualify as a bidder on a contract for a public work; revising the provisions governing the criteria for determining the qualification of bidders on public works of local governments; expanding the circumstances in which a subcontractor who is named in a bid on a contract for a public work of a local government may be substituted; and providing other matters properly relating thereto.
THE PEOPLE OF THE STATE OF NEVADA, REPRESENTED IN
SENATE AND ASSEMBLY, DO ENACT AS FOLLOWS:
Section 1. Chapter 338 of NRS is hereby amended by adding
thereto the provisions set forth as sections 2 and 3 of this act.
Sec. 2. In lieu of adopting criteria pursuant to NRS 338.1377
and determining the qualification of bidders pursuant to NRS
338.1379, the governing body of a local government may deem a
person to be qualified to bid on:
1. Contracts for public works of the local government if the
person has been determined by:
(a) The State Public Works Board pursuant to NRS 338.1379
to be qualified to bid on contracts for public works of the State
pursuant to the criteria set forth in NRS 338.1375; or
(b) The governing body of another local government pursuant
to NRS 338.1379 to be qualified to bid on contracts for public
works of that local government pursuant to the criteria set forth
in NRS 338.1377.
2. A contract for a public work of the local government if:
(a) The person has been determined by the Department of
Transportation pursuant to NRS 408.333 to be qualified to bid on
the contract for the public work;
(b) The public work will be owned, operated or maintained by
the Department of Transportation after the public work is
constructed by the local government; and
(c) 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.
Sec. 3. 1. Before the governing body of a local government
accepts applications pursuant to NRS 338.1379, the governing
body must, in accordance with subsection 2, advertise in a
newspaper that is:
(a) Qualified pursuant to the provisions of chapter 238 of
NRS; and
(b) Published in a county in which the contracts for the
potential public works will be performed or, if no qualified
newspaper is published in that county, published in a qualified
newspaper that is published in the State of Nevada and which has
a general circulation in the county in which the contracts for the
potential public works will be performed.
2. An advertisement required pursuant to subsection 1:
(a) Must be published at least once not less than 21 days
before applications are to be submitted to the governing body; and
(b) Must include:
(1) A description of the potential public works for which
applications to qualify as a bidder are being accepted;
(2) The time and place at which applications are to be
submitted to the governing body;
(3) The place at which applications may be obtained; and
(4) Any other information that the governing body deems
necessary.
Sec. 4. NRS 338.010 is hereby amended to read as follows:
338.010 As used in this chapter:
1. “Day labor” means all cases where public bodies, their
officers, agents or employees, hire, supervise and pay the wages
thereof directly to a workman or workmen employed by them on
public works by the day and not under a contract in writing.
2. “Design-build contract” means a contract between a public
body and a design-build team in which the design-build team agrees
to design and construct a public work.
3. “Design-build team” means an entity that consists of:
(a) At least one person who is licensed as a general engineering
contractor or a general building contractor pursuant to chapter 624
of NRS; and
(b) For a public work that consists of:
(1) A building and its site, at least one person who holds a
certificate of registration to practice architecture pursuant to chapter
623 of NRS.
(2) Anything other than a building and its site, at least one
person who holds a certificate of registration to practice
architecture
pursuant to chapter 623 of NRS or is licensed as a professional
engineer pursuant to chapter 625 of NRS.
4. “Design professional” means:
(a) A person who is licensed as a professional engineer pursuant
to chapter 625 of NRS;
(b) A person who is licensed as a professional land surveyor
pursuant to chapter 625 of NRS;
(c) A person who holds a certificate of registration to engage in
the practice of architecture pursuant to chapter 623 of NRS;
(d) A person who holds a certificate of registration to engage in
the practice of landscape architecture pursuant to chapter 623A of
NRS; or
(e) A business entity that engages in the practice of professional
engineering, land surveying, architecture or landscape architecture.
5. “Eligible bidder” means a person who is:
(a) Found to be a responsible and responsive contractor by a
local government which requests bids for a public work in
accordance with paragraph (b) of subsection 1 of NRS 338.1373; or
(b) Determined by a public body which awarded a contract for a
public work pursuant to NRS 338.1375 to 338.139, inclusive, to be
qualified to bid on that contract pursuant to NRS 338.1379 or
section 2 of this act or was exempt from meeting such
qualifications pursuant to NRS 338.1383.
6. “General contractor” means a person who is licensed to
conduct business in one, or both, of the following branches of the
contracting business:
(a) General engineering contracting, as described in subsection 2
of NRS 624.215.
(b) General building contracting, as described in subsection 3 of
NRS 624.215.
7. “Local government” means every political subdivision or
other entity which has the right to levy or receive money from ad
valorem or other taxes or any mandatory assessments, and includes,
without limitation, counties, cities, towns, boards, school districts
and other districts organized pursuant to chapters 244A, 309, 318,
379, 474, 541, 543 and 555 of NRS, NRS 450.550 to 450.750,
inclusive, and any agency or department of a county or city which
prepares a budget separate from that of the parent political
subdivision.
8. “Offense” means failing to:
(a) Pay the prevailing wage required pursuant to this chapter;
(b) Pay the contributions for unemployment compensation
required pursuant to chapter 612 of NRS;
(c) Provide and secure compensation for employees required
pursuant to chapters 616A to 617, inclusive, of NRS; or
(d) Comply with subsection 4 or 5 of NRS 338.070.
9. “Prime contractor” means a person who:
(a) Contracts to construct an entire project;
(b) Coordinates all work performed on the entire project;
(c) Uses his own workforce to perform all or a part of the
construction, repair or reconstruction of the project; and
(d) Contracts for the services of any subcontractor or
independent contractor or is responsible for payment to any
contracted subcontractors or independent contractors.
The term includes, without limitation, a general contractor or a
specialty contractor who is authorized to bid on a project pursuant
to NRS 338.139 or 338.148.
10. “Public body” means the State, county, city, town, school
district or any public agency of this state or its political
subdivisions sponsoring or financing a public work.
11. “Public work” means any project for the new construction,
repair or reconstruction of:
(a) A project financed in whole or in part from public money
for:
(1) Public buildings;
(2) Jails and prisons;
(3) Public roads;
(4) Public highways;
(5) Public streets and alleys;
(6) Public utilities which are financed in whole or in part by
public money;
(7) Publicly owned water mains and sewers;
(8) Public parks and playgrounds;
(9) Public convention facilities which are financed at least in
part with public funds; and
(10) All other publicly owned works and property whose cost
as a whole exceeds $20,000. Each separate unit that is a part of a
project is included in the cost of the project to determine whether a
project meets that threshold.
(b) A building for the University and Community College
System of Nevada of which 25 percent or more of the costs of the
building as a whole are paid from money appropriated by this state
or from federal money.
12. “Specialty contractor” means a person who is licensed to
conduct business as described in subsection 4 of NRS 624.215.
13. “Stand-alone underground utility project” means an
underground utility project that is not integrated into a larger
project, including, without limitation:
(a) An underground sewer line or an underground pipeline for
the conveyance of water, including facilities appurtenant thereto;
and
(b) A project for the construction or installation of a storm drain,
including facilities appurtenant thereto,
that is not located at the site of a public work for the design and
construction of which a public body is authorized to contract with a
design-build team pursuant to subsection 2 of NRS 338.1711.
14. “Wages” means:
(a) The basic hourly rate of pay; and
(b) The amount of pension, health and welfare, vacation and
holiday pay, the cost of apprenticeship training or other similar
programs or other bona fide fringe benefits which are a benefit to
the workman.
15. “Workman” means a skilled mechanic, skilled workman,
semiskilled mechanic, semiskilled workman or unskilled workman.
The term does not include a design professional.
Sec. 5. NRS 338.1373 is hereby amended to read as follows:
338.1373 1. A local government shall award a contract for
the construction, alteration or repair of a public work pursuant to
the provisions of:
(a) NRS 338.1377 to 338.139, inclusive [;] , and sections 2 and
3 of this act; or
(b) NRS 338.143 to 338.148, inclusive.
2. The provisions of NRS 338.1375 to 338.1383, inclusive, and
338.139 do not apply with respect to contracts for the construction,
reconstruction, improvement and maintenance of highways that are
awarded by the Department of Transportation pursuant to NRS
408.313 to 408.433, inclusive.
Sec. 6. NRS 338.1377 is hereby amended to read as follows:
338.1377 [1.] Except as otherwise provided in NRS 338.1383
[,] and section 2 of this act, the governing body of each local
government that sponsors or finances a public work shall adopt the
following criteria for [the qualification of bidders] determining
whether a person who has applied pursuant to NRS 338.1379 is
qualified to bid on contracts for public works of the local
government[. The governing body shall use the criteria to
determine the qualification of bidders on contracts for public works
of the local government.
2. Before adopting criteria pursuant to this section, the
governing body of a local government shall hold at least one public
hearing to solicit and evaluate public opinion regarding the criteria
to be adopted. Notice of such a hearing must be provided by mail at
least 10 days before the hearing to:
(a) Construction trade associations in this state; and
(b) Labor unions representing trades in the building industry in
this state.
3. The criteria adopted by a governing body pursuant to this
section to determine whether an applicant is qualified to bid on a
contract for a public work:
(a) Must be adopted in such a form that the determination of
whether an applicant is qualified to bid on a contract for a public
work does not require or allow the exercise of discretion by any one
person.
(b) May include only:
(1) The financial ability of the applicant to perform a
contract;
(2) The principal personnel of the applicant;
(3)] :
1. Whether the applicant possesses a valid contractor’s
license of a class corresponding to the work to be required by the
local government;
2. Whether the applicant has the ability to obtain the
necessary bonding for the work to be required by the local
government;
3. Whether the applicant has successfully completed one or
more projects during the 5 years immediately preceding the date
of application of similar size, scope or type as the work to be
required by the local government;
4. Whether the principal personnel employed by the applicant
have the necessary professional qualifications and experience for
the work to be required by the local government;
5. Whether the applicant has breached any contracts with a
public agency or person in this state or any other state[; and
(4)] during the 5 years immediately preceding the date of
application;
6. Whether the applicant has been disqualified from being
awarded a contract pursuant to NRS 338.017 or 338.1387[.] ;
7. Whether the applicant has been convicted of a violation for
discrimination in employment during the 2 years immediately
preceding the date of application;
8. Whether the applicant has the ability to obtain and
maintain insurance coverage for public liability and property
damage within limits sufficient to protect the applicant and all the
subcontractors of the applicant from claims for personal injury,
accidental death and damage to property that may arise in
connection with the work to be required by the local government;
9. Whether the applicant has established a safety program
that complies with the requirements of chapter 618 of NRS;
10. Whether the applicant 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 applicant to perform
the work to be required by the local government;
11. Whether, during the 5 years immediately preceding the
date of application, the applicant has filed as a debtor under the
provisions of the United States Bankruptcy Code;
12. Whether the application of the applicant is truthful and
complete; and
13. Whether, during the 5 years immediately preceding the
date of application, the applicant has, as a result of causes within
the control of the applicant or a subcontractor or supplier of the
applicant, failed to perform any contract:
(a) In the manner specified by the contract and any change
orders initiated or approved by the person or governmental entity
that awarded the contract or its authorized representative;
(b) Within the time specified by the contract unless extended
by the person or governmental entity that awarded the contract or
its authorized representative; or
(c) For the amount of money specified in the contract or as
modified by any change orders initiated or approved by the person
or governmental entity that awarded the contract or its authorized
representative.
Evidence of the failures described in this subsection may include,
without limitation, the assessment of liquidated damages against
the applicant, the forfeiture of any bonds posted by the applicant,
an arbitration award granted against the applicant or a decision
by a court of law against the applicant.
Sec. 7. NRS 338.1379 is hereby amended to read as follows:
338.1379 1. Except as otherwise provided in NRS 338.1383
[,] and section 2 of this act, a person who wishes to qualify as a
bidder on a contract for a public work must submit an application to
the State Public Works Board or the governing body.
2. Upon receipt of an application pursuant to subsection 1, the
State Public Works Board or the governing body shall:
(a) Investigate the applicant to determine whether he is qualified
to bid on a contract; and
(b) After conducting the investigation, determine whether the
applicant is qualified to bid on a contract. The determination must
be made within 30 days after receipt of the application.
3. The State Public Works Board or the governing body shall
notify each applicant in writing of its determination. If an
application is denied, the notice must set forth the reasons for the
denial and inform the applicant of his right to a hearing pursuant to
NRS 338.1381.
4. The State Public Works Board or the governing body of a
local government may determine an applicant is qualified to bid:
(a) On a specific project;
(b) On more than one project over a period of 12 months; or
(c) On more than one project over a period of 24 months.
5. The State Public Works Board shall not use any criteria
other than criteria adopted by regulation pursuant to NRS 338.1375
in determining whether to approve or deny an application.
6. The governing body of a local government shall not use any
criteria other than the criteria described in NRS 338.1377 in
determining whether to approve or deny an application.
7. Financial information and other data pertaining to the net
worth of an applicant which is gathered by or provided to the State
Public Works Board or a governing body to determine the financial
ability of an applicant to perform a contract is confidential and not
open to public inspection.
Sec. 8. NRS 338.1383 is hereby amended to read as follows:
338.1383 [If] Except as otherwise provided in section 2 of this
act, if a local government does not adopt criteria for the
qualification of bidders on a public work pursuant to NRS
338.1377, the governing body may only accept a bid on a contract
for a public work from a person who holds:
1. An unlimited contractor’s license issued by the State
Contractors’ Board in the branch of general engineering contracting
or general building contracting, or in both branches, and:
(a) At the time he submits his bid, he provides a bid bond equal
to 10 percent of the amount of the bid; and
(b) At the time the contract is awarded, he provides a
performance bond, a labor and material bond and a guaranty bond,
each equal to 100 percent of the amount of the contract; or
2. A contractor’s license issued by the State Contractors’ Board
that is designated in any classification if he:
(a) Has, in the 5 years immediately preceding the submission of
the bid, been found to be a responsible contractor in the
classification in which his contractor’s license is designated;
(b) Provides a bid bond, a performance bond, a guaranty bond,
and a labor and material bond in such amounts as the governing
body may require; and
(c) Employs a person determined by the State Contractors’
Board to be qualified to supervise each classification of
construction upon which the person submitting the bid is bidding.
Sec. 9. NRS 338.1385 is hereby amended to read as follows:
338.1385 1. Except as otherwise provided in subsection 7
and NRS 338.1906 and 338.1907, this state, or a local government
that awards a contract for the construction, alteration or repair of a
public work in accordance with paragraph (a) of subsection 1 of
NRS 338.1373, or a public officer, public employee or other person
responsible for awarding a contract for the construction, alteration
or repair of a public work who represents the State or the local
government, shall not:
(a) Commence such a project for which the estimated cost
exceeds $100,000 unless it advertises in a newspaper of general
circulation in this state for bids for the project; or
(b) Divide such a project into separate portions to avoid the
requirements of paragraph (a).
2. Except as otherwise provided in subsection 7, a public body
that maintains a list of properly licensed contractors who are
interested in receiving offers to bid on public works projects for
which the estimated cost is more than $25,000 but less than
$100,000 shall solicit bids from not more than three of the
contractors on the list for a contract of that value for the
construction, alteration or repair of a public work. The public body
shall select contractors from the list in such a manner as to afford
each contractor an equal opportunity to bid on a public works
project. A properly licensed contractor must submit a written
request annually to the public body to remain on the list. Offers for
bids which are made pursuant to this subsection must be sent by
certified mail.
3. Each advertisement for bids must include a provision that
sets forth:
(a) The requirement that a contractor must be qualified pursuant
to NRS 338.1379 or section 2 of this act to bid on the contract or
must be exempt from meeting such qualifications pursuant to NRS
338.1383; and
(b) The period during which an application to qualify as a bidder
on the contract must be submitted.
4. Approved plans and specifications for the bids must be on
file at a place and time stated in the advertisement for the inspection
of all persons desiring to bid thereon and for other interested
persons. Contracts for the project must be awarded on the basis of
bids received.
5. Any bids received in response to an advertisement for bids
may be rejected if the person responsible for awarding the contract
determines that:
(a) The bidder is not a qualified bidder pursuant to NRS
338.1379 [,] or section 2 of this act, unless the bidder is exempt
from meeting such qualifications pursuant to NRS 338.1383;
(b) The bidder is not responsive;
(c) The quality of the services, materials, equipment or labor
offered does not conform to the approved plan or specifications; or
(d) The public interest would be served by such a rejection.
6. Before the State or a local government may commence a
project subject to the provisions of this section, based upon a
determination that the public interest would be served by rejecting
any bids received in response to an advertisement for bids, it shall
prepare and make available for public inspection a written statement
containing:
(a) A list of all persons, including supervisors, whom the State
or the local government intends to assign to the project, together
with their classifications and an estimate of the direct and indirect
costs of their labor;
(b) A list of all equipment that the State or the local government
intends to use on the project, together with an estimate of the
number of hours each item of equipment will be used and the
hourly cost to use each item of equipment;
(c) An estimate of the cost of administrative support for the
persons assigned to the project;
(d) An estimate of the total cost of the project; and
(e) An estimate of the amount of money the State or the local
government expects to save by rejecting the bids and performing
the project itself.
7. This section does not apply to:
(a) Any utility subject to the provisions of chapter 318 or 710 of
NRS;
(b) Any work of construction, reconstruction, improvement and
maintenance of highways subject to NRS 408.323 or 408.327;
(c) Normal maintenance of the property of a school district;
(d) The Las Vegas Valley Water District created pursuant to
chapter 167, Statutes of Nevada 1947, the Moapa Valley Water
District created pursuant to chapter 477, Statutes of Nevada 1983 or
the Virgin Valley Water District created pursuant to chapter 100,
Statutes of Nevada 1993; or
(e) The design and construction of a public work for which a
public body contracts with a design-build team pursuant to NRS
338.1711 to 338.1727.
Sec. 10. NRS 338.1385 is hereby amended to read as follows:
338.1385 1. Except as otherwise provided in subsection 8,
this state, or a local government that awards a contract for the
construction, alteration or repair of a public work in accordance
with paragraph (a) of subsection 1 of NRS 338.1373, or a public
officer, public employee or other person responsible for awarding a
contract for the construction, alteration or repair of a public work
who represents the State or the local government, shall not:
(a) Commence such a project for which the estimated cost
exceeds $100,000 unless it advertises in a newspaper of general
circulation in this state for bids for the project; or
(b) Divide such a project into separate portions to avoid the
requirements of paragraph (a).
2. Except as otherwise provided in subsection 8, a public body
that maintains a list of properly licensed contractors who are
interested in receiving offers to bid on public works projects for
which the estimated cost is more than $25,000 but less than
$100,000 shall solicit bids from not more than three of the
contractors on the list for a contract of that value for the
construction, alteration or repair of a public work. The public body
shall select contractors from the list in such a manner as to afford
each contractor an equal opportunity to bid on a public works
project. A properly licensed contractor must submit a written
request annually to the public body to remain on the list. Offers for
bids which are made pursuant to this subsection must be sent by
certified mail.
3. Each advertisement for bids must include a provision that
sets forth:
(a) The requirement that a contractor must be qualified pursuant
to NRS 338.1379 or section 2 of this act to bid on the contract or
must be exempt from meeting such qualifications pursuant to NRS
338.1383; and
(b) The period during which an application to qualify as a bidder
on the contract must be submitted.
4. Approved plans and specifications for the bids must be on
file at a place and time stated in the advertisement for the inspection
of all persons desiring to bid thereon and for other interested
persons. Contracts for the project must be awarded on the basis of
bids received.
5. Any bids received in response to an advertisement for bids
may be rejected if the person responsible for awarding the contract
determines that:
(a) The bidder is not a qualified bidder pursuant to NRS
338.1379 [,] or section 2 of this act, unless the bidder is exempt
from meeting such qualifications pursuant to NRS 338.1383;
(b) The bidder is not responsive;
(c) The quality of the services, materials, equipment or labor
offered does not conform to the approved plan or specifications; or
(d) The public interest would be served by such a rejection.
6. Before the State or a local government may commence a
project subject to the provisions of this section, based upon a
determination that the public interest would be served by rejecting
any bids received in response to an advertisement for bids, it shall
prepare and make available for public inspection a written
statement containing:
(a) A list of all persons, including supervisors, whom the State
or the local government intends to assign to the project, together
with their classifications and an estimate of the direct and indirect
costs of their labor;
(b) A list of all equipment that the State or the local government
intends to use on the project, together with an estimate of the
number of hours each item of equipment will be used and the hourly
cost to use each item of equipment;
(c) An estimate of the cost of administrative support for the
persons assigned to the project;
(d) An estimate of the total cost of the project; and
(e) An estimate of the amount of money the State or the local
government expects to save by rejecting the bids and performing
the project itself.
7. In preparing the estimated cost of a project pursuant to
subsection 6, the State or a local government must include the fair
market value of, or, if known, the actual cost of, all materials,
supplies, labor and equipment to be used for the project.
8. This section does not apply to:
(a) Any utility subject to the provisions of chapter 318 or 710 of
NRS;
(b) Any work of construction, reconstruction, improvement and
maintenance of highways subject to NRS 408.323 or 408.327;
(c) Normal maintenance of the property of a school district; or
(d) The Las Vegas Valley Water District created pursuant to
chapter 167, Statutes of Nevada 1947, the Moapa Valley Water
District created pursuant to chapter 477, Statutes of Nevada 1983 or
the Virgin Valley Water District created pursuant to chapter 100,
Statutes of Nevada 1993; or
(e) The design and construction of a public work for which a
public body contracts with a design-build team pursuant to NRS
338.1711 to 338.1727, inclusive.
Sec. 11. NRS 338.1387 is hereby amended to read as follows:
338.1387 1. A public body awarding a contract for a public
work shall not award the contract to a person who, at the time of the
bid, is not properly licensed under the provisions of chapter 624 of
NRS or if the contract would exceed the limit of his license. A
subcontractor named by the contractor who is not properly licensed
for that portion of the work shall be deemed unacceptable. If the
subcontractor is deemed unacceptable, the contractor shall provide
an acceptable subcontractor before the award of the contract.
2. If, after awarding the contract, the public body discovers that
the person to whom the contract was awarded is not licensed, or
that the contract would exceed his license, the public body shall
reject the bid and may accept the next lowest bid for that public
work from a responsive bidder who was determined by the public
body to be a qualified bidder pursuant to NRS 338.1379 or section
2 of this act or was exempt from meeting such qualifications
pursuant to NRS 338.1373 or 338.1383 without requiring that new
bids be submitted.
Sec. 12. NRS 338.1389 is hereby amended to read as follows:
338.1389 1. Except as otherwise provided in NRS 338.1385
and 338.1711 to 338.1727, inclusive, a public body shall award a
contract for a public work to the contractor who submits the best
bid.
2. Except as otherwise provided in subsection 10 or limited by
subsection 11, for the purposes of this section, a contractor who:
(a) Has been determined by the public body to be a qualified
bidder pursuant to NRS 338.1379 or section 2 of this act or is
exempt from meeting such requirements pursuant to NRS 338.1373
or 338.1383; and
(b) At the time he submits his bid, provides to the public body a
copy of a certificate of eligibility to receive a preference in bidding
on public works issued to him by the State Contractors’ Board
pursuant to subsection 3 or 4,
shall be deemed to have submitted a better bid than a competing
contractor who has not provided a copy of such a valid certificate of
eligibility if the amount of his bid is not more than 5 percent higher
than the amount bid by the competing contractor.
3. The State Contractors’ Board shall issue a certificate of
eligibility to receive a preference in bidding on public works to a
general contractor who is licensed pursuant to the provisions of
chapter 624 of NRS and submits to the Board an affidavit from a
certified public accountant setting forth that the general contractor
has, while licensed as a general contractor in this state:
(a) Paid directly, on his own behalf:
(1) The sales and use taxes imposed pursuant to chapters
372, 374 and 377 of NRS on materials used for construction in this
state, including, without limitation, construction that is undertaken
or carried out on land within the boundaries of this state that is
managed by the Federal Government or is on an Indian reservation
or Indian colony, of not less than $5,000 for each consecutive 12
-month period for 60 months immediately preceding the submission
of the affidavit from the certified public accountant;
(2) The governmental services tax imposed pursuant to
chapter 371 of NRS on the vehicles used in the operation of his
business in this state of not less than $5,000 for each consecutive
12-month period for 60 months immediately preceding the
submission of the affidavit from the certified public accountant; or
(3) Any combination of such sales and use taxes and
governmental services tax; or
(b) Acquired, by purchase, inheritance, gift or transfer through a
stock option plan, all the assets and liabilities of a viable, operating
construction firm that possesses a:
(1) License as a general contractor pursuant to the provisions
of chapter 624 of NRS; and
(2) Certificate of eligibility to receive a preference in bidding
on public works.
4. The State Contractors’ Board shall issue a certificate of
eligibility to receive a preference in bidding on public works to a
specialty contractor who is licensed pursuant to the provisions of
chapter 624 of NRS and submits to the Board an affidavit from a
certified public accountant setting forth that the specialty contractor
has, while licensed as a specialty contractor in this state:
(a) Paid directly, on his own behalf:
(1) The sales and use taxes pursuant to chapters 372, 374 and
377 of NRS on materials used for construction in this state,
including, without limitation, construction that is undertaken or
carried out on land within the boundaries of this state that is
managed by the Federal Government or is on an Indian reservation
or Indian colony, of not less than $5,000 for each consecutive 12
-month period for 60 months immediately preceding the submission
of the affidavit from the certified public accountant;
(2) The governmental services tax imposed pursuant to
chapter 371 of NRS on the vehicles used in the operation of his
business in this state of not less than $5,000 for each consecutive
12-month period for 60 months immediately preceding the
submission of the affidavit from the certified public accountant; or
(3) Any combination of such sales and use taxes and
governmental services tax; or
(b) Acquired, by purchase, inheritance, gift or transfer through a
stock option plan, all the assets and liabilities of a viable, operating
construction firm that possesses a:
(1) License as a specialty contractor pursuant to the
provisions of chapter 624 of NRS; and
(2) Certificate of eligibility to receive a preference in bidding
on public works.
5. For the purposes of complying with the requirements set
forth in paragraph (a) of subsection 3 and paragraph (a) of
subsection 4, a contractor shall be deemed to have paid:
(a) Sales and use taxes and governmental services taxes that
were paid in this state by an affiliate or parent company of the
contractor, if the affiliate or parent company is also a general
contractor or specialty contractor, as applicable; and
(b) Sales and use taxes that were paid in this state by a joint
venture in which the contractor is a participant, in proportion to the
amount of interest the contractor has in the joint venture.
6. A contractor who has received a certificate of eligibility to
receive a preference in bidding on public works from the State
Contractors’ Board pursuant to subsection 3 or 4 shall, at the time
for the annual renewal of his contractor’s license pursuant to NRS
624.283, submit to the Board an affidavit from a certified public
accountant setting forth that the contractor has, during the
immediately preceding 12 months, paid the taxes required pursuant
to paragraph (a) of subsection 3 or paragraph (a) of subsection 4, as
applicable, to maintain his eligibility to hold such a certificate.
7. A contractor who fails to submit an affidavit to the Board
pursuant to subsection 6 ceases to be eligible to receive a
preference in bidding on public works unless he reapplies for and
receives a certificate of eligibility pursuant to subsection 3 or 4, as
applicable.
8. If a contractor holds more than one contractor’s license, he
must submit a separate application for each license pursuant to
which he wishes to qualify for a preference in bidding. Upon
issuance, the certificate of eligibility to receive a preference in
bidding on public works becomes part of the contractor’s license
for which the contractor submitted the application.
9. If a contractor who applies to the State Contractors’ Board
for a certificate of eligibility to receive a preference in bidding on
public works submits false information to the Board regarding the
required payment of taxes, the contractor is not eligible to receive a
preference in bidding on public works for a period of 5 years after
the date on which the Board becomes aware of the submission of
the false information.
10. 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 subsection 2,
those provisions do not apply insofar as their application would
preclude or reduce federal assistance for that work. The provisions
of subsection 2 do not apply to any contract for a public work
which is expected to cost less than $250,000.
11. If a bid is submitted by two or more contractors as a joint
venture or by one of them as a joint venturer, the provisions of
subsection 2 apply only if both or all of the joint venturers
separately meet the requirements of that subsection.
12. The State Contractors’ Board shall adopt regulations and
may assess reasonable fees relating to the certification of
contractors for a preference in bidding on public works.
13. A person or entity who believes that a contractor
wrongfully holds a certificate of eligibility to receive a preference
in bidding on public works may challenge the validity of the
certificate by filing a written objection with the public body to
which the contractor has submitted a bid or proposal on a contract
for the construction of a public work. A written objection
authorized pursuant to this subsection must:
(a) Set forth proof or substantiating evidence to support the
belief of the person or entity that the contractor wrongfully holds a
certificate of eligibility to receive a preference in bidding on public
works; and
(b) Be filed with the public body at or after the time at which the
contractor submitted the bid or proposal to the public body and
before the time at which the public body awards the contract for
which the bid or proposal was submitted.
14. If a public body receives a written objection pursuant to
subsection 13, the public body shall determine whether the
objection is accompanied by the proof or substantiating evidence
required pursuant to paragraph (a) of that subsection. If the public
body determines that the objection is not accompanied by the
required proof or substantiating evidence, the public body shall
dismiss the objection and may proceed immediately to award the
contract. If
the public body determines that the objection is accompanied by the
required proof or substantiating evidence, the public body shall
determine whether the contractor qualifies for the certificate
pursuant to the provisions of this section and may proceed to award
the contract accordingly.
Sec. 13. NRS 338.141 is hereby amended to read as follows:
338.141 1. Except as otherwise provided in subsection 2,
each bid submitted to any officer, department, board or commission
for the construction of any public work or improvement must
include:
(a) The name of each subcontractor who will provide labor or a
portion of the work or improvement to the contractor for which he
will be paid an amount exceeding 5 percent of the prime
contractor’s total bid. Within 2 hours after the completion of the
opening of the bids, the contractors who submitted the three lowest
bids must submit a list containing the name of each subcontractor
who will provide labor or a portion of the work or improvement to
the contractor for which he will be paid an amount exceeding 1
percent of the prime contractor’s total bid or $50,000, whichever is
greater, and the number of the license issued to the subcontractor
pursuant to chapter 624 of NRS. If a contractor fails to submit such
a list within the required time, his bid shall be deemed not
responsive.
(b) A description of the portion of the work or improvement
which each subcontractor named in the bid will complete.
2. The contractor shall list in his bid pursuant to subsection 1
the name of a subcontractor for each portion of the project that will
be completed by a subcontractor.
3. A contractor whose bid is accepted shall not substitute any
person for a subcontractor who is named in the bid, unless:
(a) The awarding authority objects to the subcontractor, requests
in writing a change in the subcontractor and pays any increase in
costs resulting from the change; [or]
(b) The substitution is approved by the awarding authority or an
authorized representative of the awarding authority. The
substitution
must be approved if the awarding authority or authorized
representative of the awarding authority determines that:
(1) The named subcontractor, after having a reasonable
opportunity, fails or refuses to execute a written contract with the
contractor which was offered to the subcontractor with the same
general terms that all other subcontractors on the project were
offered;
(2) The named subcontractor files for bankruptcy or becomes
insolvent; or
(3) The named subcontractor fails or refuses to perform his
subcontract within a reasonable time or is unable to furnish a
performance bond and payment bond pursuant to NRS 339.025 [.];
or
(c) If the awarding body is the governing body of a local
government, the awarding authority or an authorized
representative of the awarding body, in awarding a contract for a
public work pursuant to NRS 338.1375 to 338.139, inclusive, and
sections 2 and 3 of this act:
(1) Applies such criteria set forth in NRS 338.1377 as are
appropriate for subcontractors and determines that the
subcontractor does not meet that criteria; and
(2) Requests in writing a substitution of the subcontractor.
4. As used in this section, “general terms” means the terms and
conditions of a contract that set the basic requirements for a project
and apply without regard to the particular trade or specialty of a
subcontractor, but does not include any provision that controls or
relates to the specific portion of the project that will be completed
by a subcontractor, including, without limitation, the materials to be
used by the subcontractor or other details of the work to be
performed by the subcontractor.
Sec. 14. 1. This section and sections 1 to 9, inclusive, 11, 12
and 13 of this act become effective on October 1, 2003.
2. Section 9 of this act expires by limitation on April 30, 2013.
3. Section 10 of this act becomes effective on May 1, 2013.
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