Assembly Bill No. 432–Assemblymen Brown, Knecht, Hardy, Andonov, Goicoechea, Grady, Hettrick, Marvel and Sherer

 

March 17, 2003

____________

 

Referred to Committee on Commerce and Labor

 

SUMMARY—Revises provisions concerning certain penalties against and withholdings of money from contractors and subcontractors on public works. (BDR 28‑932)

 

FISCAL NOTE:  Effect on Local Government: No.

                           Effect on the State: No.

 

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EXPLANATION – Matter in bolded italics is new; matter between brackets [omitted material] is material to be omitted.

 

AN ACT relating to public works; revising the provisions governing the penalty for the failure of a contractor or subcontractor engaged on a public work to report each workman employed on the public work to the public body that awarded the contract; prohibiting a contractor on a public work from withholding certain money from a subcontractor under certain circumstances; and providing other matters properly relating thereto.

 

THE PEOPLE OF THE STATE OF NEVADA, REPRESENTED IN

SENATE AND ASSEMBLY, DO ENACT AS FOLLOWS:

 

1-1  Section 1. NRS 338.060 is hereby amended to read as follows:

1-2  338.060  1.  A contractor engaged on a public [works] work

1-3  shall forfeit, as a penalty to the public body [in] on behalf of which

1-4  the contract has been made and awarded to the contractor, not less

1-5  than $20 nor more than $50 for each calendar day or portion thereof

1-6  that each workman employed on the public work[:

1-7  (a) Is] is paid less than the designated rate for any work done

1-8  under the contract, by the contractor or any subcontractor under

1-9  him.

1-10      [(b) Is]

2-1  2.  Except as otherwise provided in subsection 3, a contractor

2-2  engaged on a public work shall forfeit, as a penalty to the public

2-3  body on behalf of which the contract has been made and awarded

2-4  to the contractor, not less than $20 nor more than $50 for each

2-5  calendar day or portion thereof that each workman employed on

2-6  the public work is not reported to the public body awarding the

2-7  contract by the contractor or any of his subcontractors as required

2-8  pursuant to subsection 5 of NRS 338.070[.The] , up to a maximum

2-9  of:

2-10      (a) For the first failure to comply during the term of the

2-11  contract for the public work, $1,000; and

2-12      (b) For each subsequent failure to comply during the term of

2-13  the contract for the public work, $5,000.

2-14      3.  A public body shall not withhold any penalties from a

2-15  contractor pursuant to subsection 2 if the public body failed to

2-16  include the stipulation required pursuant to subsection 4 in the

2-17  contract for the public work.

2-18      4.  A public body awarding [the] a contract for a public work

2-19  shall cause a stipulation [to this effect] setting forth the penalties

2-20  specified in subsections 1 and 2 to be inserted in the contract.

2-21      [2.] 5. The Labor Commissioner shall, by regulation, establish

2-22  a sliding scale based on the size of the contractor’s business to

2-23  determine the amount of the penalty to be imposed pursuant to

2-24  subsection 1.

2-25      [3.] 6. If a penalty is imposed pursuant to this section, the costs

2-26  of the proceeding, including investigative costs and attorney’s fees,

2-27  may be recovered by the Labor Commissioner.

2-28      Sec. 2.  NRS 338.070 is hereby amended to read as follows:

2-29      338.070  1.  Any public body and its officers or agents

2-30  awarding a contract shall:

2-31      (a) Investigate possible violations of the provisions of NRS

2-32  338.010 to 338.090, inclusive, committed in the course of the

2-33  execution of the contract, and determine whether a violation has

2-34  been committed and inform the Labor Commissioner of any such

2-35  violations; and

2-36      (b) When making payments to the contractor of money

2-37  becoming due under the contract, withhold and retain all sums

2-38  forfeited pursuant to the provisions of NRS 338.010 to 338.090,

2-39  inclusive.

2-40      2.  No sum may be withheld, retained or forfeited, except from

2-41  the final payment, without a full investigation being made by the

2-42  awarding body or its agents.

2-43      3.  [It] Except as otherwise provided in subsection 6, it is

2-44  lawful for any contractor to withhold from any subcontractor under

2-45  him sufficient sums to cover any penalties withheld from him by the

3-1  awarding body on account of the failure of the subcontractor to

3-2  comply with the terms of NRS 338.010 to 338.090, inclusive. If

3-3  payment has already been made to the subcontractor, the contractor

3-4  may recover from him the amount of the penalty or forfeiture in a

3-5  suit at law.

3-6  4.  The contractor and each subcontractor shall keep or cause to

3-7  be kept an accurate record showing the name, the occupation and

3-8  the actual per diem, wages and benefits paid to each workman

3-9  employed by him in connection with the public work.

3-10      5.  The record maintained pursuant to subsection 4 must be

3-11  open at all reasonable hours to the inspection of the public body

3-12  awarding the contract, and its officers and agents. The contractor or

3-13  subcontractor shall ensure that a copy of the record for each

3-14  calendar month is received by the public body awarding the contract

3-15  no later than [10] 15 days after the end of the month. The copy must

3-16  be open to public inspection as provided in NRS 239.010. The

3-17  record in the possession of the public body awarding the contract

3-18  may be discarded by the public body 2 years after final payment is

3-19  made by the public body for the public work.

3-20      6.  A contractor shall not withhold from a subcontractor

3-21  under him the sums necessary to cover any penalties withheld

3-22  from the contractor by the public body awarding the contract

3-23  because the public body did not receive a copy of the record

3-24  maintained by the subcontractor pursuant to subsection 4 for a

3-25  calendar month by the time specified in subsection 5 if:

3-26      (a) The subcontractor provided to the contractor a copy of the

3-27  record no later than 10 days after the end of the month for

3-28  submission to the public body by the contractor; and

3-29      (b) The contractor failed to submit the copy of the record to the

3-30  public body by the time specified in subsection 5.

3-31  Nothing in this subsection prohibits a subcontractor from

3-32  submitting a copy of a record for a calendar month directly to the

3-33  public body by the time specified in subsection 5.

3-34      7. Any contractor or subcontractor, or agent or representative

3-35  thereof, performing work for a public work who neglects to comply

3-36  with the provisions of this section is guilty of a misdemeanor.

 

3-37  H