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; 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; authorizing the Labor Commissioner to waive or reduce certain penalties imposed on contractors and subcontractors for good cause shown; 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  1.  [A] Except as otherwise provided in subsection 8, a

1-3  contractor engaged on a public [works] work shall forfeit, as a

1-4  penalty to the public body [in] on behalf of which the contract has

2-1  been made and awarded to the contractor, not less than $20 nor

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

2-3  workman employed on the public work [:

2-4  (a) Is] is paid less than the designated rate for any work done

2-5  under the contract, by the contractor or any subcontractor under

2-6  him.

2-7  [(b) Is]

2-8  2.  Except as otherwise provided in subsection 8, a contractor

2-9  engaged on a public work shall forfeit, as a penalty to the public

2-10  body on behalf of which the contract has been made and awarded

2-11  to the contractor, not less than $20 nor more than $50 for each

2-12  calendar day or portion thereof for each workman employed on

2-13  the public work for which the contractor or subcontractor willfully

2-14  included inaccurate or incomplete information in the monthly

2-15  record required to be submitted to the public body pursuant to

2-16  subsection 5 of NRS 338.070.

2-17      3.  Except as otherwise provided in subsection 8, a contractor

2-18  engaged on a public work shall forfeit, as a penalty to the public

2-19  body on behalf of which the contract has been made and awarded

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

2-21  calendar day or portion thereof that each workman employed on

2-22  the public work is not reported to the public body awarding the

2-23  contract by the contractor or any of his subcontractors as required

2-24  pursuant to subsection 5 of NRS 338.070 [. The] , up to a

2-25  maximum of:

2-26      (a) For the first failure to comply during the term of the

2-27  contract for the public work, $1,000; and

2-28      (b) For each subsequent failure to comply during the term of

2-29  the contract for the public work, $5,000.

2-30      4.  Except as otherwise provided in subsection 8, if a violation

2-31  of more than one provision of subsections 1, 2 and 3 involves the

2-32  same workman, the contractor shall forfeit the penalty set forth in

2-33  each subsection that was violated.

2-34      5.  A public body awarding [the] a contract for a public work

2-35  shall cause a stipulation [to this effect] setting forth the penalties

2-36  specified in subsections 1 to 4, inclusive, to be inserted in the

2-37  contract.

2-38      [2.] 6. The Labor Commissioner shall, by regulation, establish

2-39  a sliding scale based on the size of the contractor’s business to

2-40  determine the amount of the penalty to be imposed pursuant to

2-41  [subsection 1.

2-42      3.] subsections 1 and 2.

2-43      7. If a penalty is imposed pursuant to this section, the costs of

2-44  the proceeding, including investigative costs and attorney’s fees,

2-45  may be recovered by the Labor Commissioner.

3-1  8.  The Labor Commissioner may, for good cause shown,

3-2  waive or reduce any penalty imposed pursuant to this section.

3-3  Sec. 2.  NRS 338.070 is hereby amended to read as follows:

3-4  338.070  1.  Any public body and its officers or agents

3-5  awarding a contract shall:

3-6  (a) Investigate possible violations of the provisions of NRS

3-7  338.010 to 338.090, inclusive, committed in the course of the

3-8  execution of the contract, and determine whether a violation has

3-9  been committed and inform the Labor Commissioner of any such

3-10  violations; and

3-11      (b) When making payments to the contractor of money

3-12  becoming due under the contract, withhold and retain all sums

3-13  forfeited pursuant to the provisions of NRS 338.010 to 338.090,

3-14  inclusive.

3-15      2.  No sum may be withheld, retained or forfeited, except from

3-16  the final payment, without a full investigation being made by the

3-17  awarding body or its agents.

3-18      3.  [It] Except as otherwise provided in subsection 6, it is

3-19  lawful for any contractor to withhold from any subcontractor under

3-20  him sufficient sums to cover any penalties withheld from him by the

3-21  awarding body on account of the failure of the subcontractor to

3-22  comply with the terms of NRS 338.010 to 338.090, inclusive. If

3-23  payment has already been made to the subcontractor, the contractor

3-24  may recover from him the amount of the penalty or forfeiture in a

3-25  suit at law.

3-26      4.  The contractor and each subcontractor shall keep or cause to

3-27  be kept an accurate record showing the name, the occupation and

3-28  the actual per diem, wages and benefits paid to each workman

3-29  employed by him in connection with the public work.

3-30      5.  The record maintained pursuant to subsection 4 must be

3-31  open at all reasonable hours to the inspection of the public body

3-32  awarding the contract, and its officers and agents. The contractor or

3-33  subcontractor shall ensure that a copy of the record for each

3-34  calendar month is received by the public body awarding the contract

3-35  no later than [10] 15 days after the end of the month. The copy must

3-36  be open to public inspection as provided in NRS 239.010. The

3-37  record in the possession of the public body awarding the contract

3-38  may be discarded by the public body 2 years after final payment is

3-39  made by the public body for the public work.

3-40      6.  A contractor shall not withhold from a subcontractor

3-41  under him the sums necessary to cover any penalties provided

3-42  pursuant to subsection 3 of NRS 338.060 that may be withheld

3-43  from the contractor by the public body awarding the contract

3-44  because the public body did not receive a copy of the record

4-1  maintained by the subcontractor pursuant to subsection 4 for a

4-2  calendar month by the time specified in subsection 5 if:

4-3  (a) The subcontractor provided to the contractor, for

4-4  submission to the public body by the contractor, a copy of the

4-5  record not later than the later of:

4-6       (1) Ten days after the end of the month; or

4-7       (2) A date agreed upon by the contractor and

4-8  subcontractor; and

4-9  (b) The contractor failed to submit the copy of the record to the

4-10  public body by the time specified in subsection 5.

4-11  Nothing in this subsection prohibits a subcontractor from

4-12  submitting a copy of a record for a calendar month directly to the

4-13  public body by the time specified in subsection 5.

4-14      7. Any contractor or subcontractor, or agent or representative

4-15  thereof, performing work for a public work who neglects to comply

4-16  with the provisions of this section is guilty of a misdemeanor.

4-17      Sec. 3.  This act becomes effective upon passage and approval.

 

4-18  H