(Reprinted with amendments adopted on April 21, 2003)

 

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.

 

~

 

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; imposing a penalty against a contractor or subcontractor for willfully including inaccurate or incomplete information in a report required to be submitted to the public body that awarded the contract for the public work; 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] :

1-5  (a) Not less than $20 nor more than $50 for each calendar day or

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

2-1  (a) Is] is paid less than the designated rate for any work done

2-2  under the contract, by the contractor or any subcontractor under him

2-3  [.

2-4  (b) Is] ; or

2-5  (b) Not less than $20 nor more than $50 for each calendar day

2-6  or portion thereof for each workman employed on the public work

2-7  for which the contractor willfully included inaccurate or

2-8  incomplete information in the monthly record required to be

2-9  submitted to the public body pursuant to subsection 5 of NRS

2-10  338.070.

2-11      2.  A contractor who violates the provisions of paragraphs (a)

2-12  and (b) of subsection 1 for the same workman must forfeit as

2-13  penalty the amount imposed by paragraph (a) or (b), but not both

2-14  paragraphs.

2-15      3.  A contractor engaged on a public work shall forfeit, as a

2-16  penalty to the public body on behalf of which the contract has

2-17  been made and awarded to the contractor, not less than $20 nor

2-18  more than $50 for each calendar day or portion thereof that each

2-19  workman employed on the public work is not reported to the public

2-20  body awarding the contract by the contractor or any of his

2-21  subcontractors as required pursuant to subsection 5 of NRS

2-22  338.070[.The] , up to a maximum of:

2-23      (a) For the first failure to comply during the term of the

2-24  contract for the public work, $1,000; and

2-25      (b) For each subsequent failure to comply during the term of

2-26  the contract for the public work, $5,000.

2-27      4.  A public body awarding [the] a contract for a public work

2-28  shall cause a stipulation [to this effect] setting forth the penalties

2-29  specified in subsections 1, 2 and 3 to be inserted in the contract.

2-30      [2.] 5. The Labor Commissioner shall, by regulation, establish

2-31  a sliding scale based on the size of the contractor’s business to

2-32  determine the amount of the penalty to be imposed pursuant to

2-33  subsection 1.

2-34      [3.] 6. If a penalty is imposed pursuant to this section, the costs

2-35  of the proceeding, including investigative costs and attorney’s fees,

2-36  may be recovered by the Labor Commissioner.

2-37      Sec. 2.  NRS 338.070 is hereby amended to read as follows:

2-38      338.070  1.  Any public body and its officers or agents

2-39  awarding a contract shall:

2-40      (a) Investigate possible violations of the provisions of NRS

2-41  338.010 to 338.090, inclusive, committed in the course of the

2-42  execution of the contract, and determine whether a violation has

2-43  been committed and inform the Labor Commissioner of any such

2-44  violations; and

3-1  (b) When making payments to the contractor of money

3-2  becoming due under the contract, withhold and retain all sums

3-3  forfeited pursuant to the provisions of NRS 338.010 to 338.090,

3-4  inclusive.

3-5  2.  No sum may be withheld, retained or forfeited, except from

3-6  the final payment, without a full investigation being made by the

3-7  awarding body or its agents.

3-8  3.  [It] Except as otherwise provided in subsection 6, it is

3-9  lawful for any contractor to withhold from any subcontractor under

3-10  him sufficient sums to cover any penalties withheld from him by the

3-11  awarding body on account of the failure of the subcontractor to

3-12  comply with the terms of NRS 338.010 to 338.090, inclusive. If

3-13  payment has already been made to the subcontractor, the contractor

3-14  may recover from him the amount of the penalty or forfeiture in a

3-15  suit at law.

3-16      4.  The contractor and each subcontractor shall keep or cause to

3-17  be kept an accurate record showing the name, the occupation and

3-18  the actual per diem, wages and benefits paid to each workman

3-19  employed by him in connection with the public work.

3-20      5.  The record maintained pursuant to subsection 4 must be

3-21  open at all reasonable hours to the inspection of the public body

3-22  awarding the contract, and its officers and agents. The contractor or

3-23  subcontractor shall ensure that a copy of the record for each

3-24  calendar month is received by the public body awarding the contract

3-25  no later than [10] 15 days after the end of the month. The copy must

3-26  be open to public inspection as provided in NRS 239.010. The

3-27  record in the possession of the public body awarding the contract

3-28  may be discarded by the public body 2 years after final payment is

3-29  made by the public body for the public work.

3-30      6.  A contractor shall not withhold from a subcontractor

3-31  under him the sums necessary to cover any penalties provided

3-32  pursuant to subsection 3 of NRS 338.060 that may be withheld

3-33  from the contractor by the public body awarding the contract

3-34  because the public body did not receive a copy of the record

3-35  maintained by the subcontractor pursuant to subsection 4 for a

3-36  calendar month by the time specified in subsection 5 if:

3-37      (a) The subcontractor provided to the contractor, for

3-38  submission to the public body by the contractor, a copy of the

3-39  record not later than the later of:

3-40          (1) Ten days after the end of the month; or

3-41          (2) A date agreed upon by the contractor and

3-42  subcontractor; and

3-43      (b) The contractor failed to submit the copy of the record to the

3-44  public body by the time specified in subsection 5.

4-1  Nothing in this subsection prohibits a subcontractor from

4-2  submitting a copy of a record for a calendar month directly to the

4-3  public body by the time specified in subsection 5.

4-4  7. Any contractor or subcontractor, or agent or representative

4-5  thereof, performing work for a public work who neglects to comply

4-6  with the provisions of this section is guilty of a misdemeanor.

 

4-7  H