ASSEMBLY ACTION Initial and Date |SENATE ACTION Initial and Date
Adopted Lost | Adopted Lost
Concurred In Not |Concurred In Not
Receded Not | Receded Not
Amend section 1, page 1, by deleting lines 3 through 12 and inserting:
“1. Except as otherwise provided in subsection 2 and NRS 338.515 and 338.525, a public body and its officers or agents awarding a contract for a public work shall not withhold payment from the contractor in excess of retainage.
2. The prohibition set forth in subsection 1 does not apply with respect to any and all liquidated damages that the contractor has agreed to pay in the event that the contractor breaches the contract.”.
Amend the bill as a whole by renumbering sections 2 and 3 as sections 7 and 8 and adding new sections designated sections 2 through 6, following section 1, to read as follows:
“Sec. 2. 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 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.
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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.
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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. “Schedule of values” means a document detailing the cost of materials and labor necessary to carry out a particular public works contract.
13. “Specialty contractor” means a person who is licensed to conduct business as described in subsection 4 of NRS 624.215.
[13.]14. “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,
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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.]15. “Unbalanced bid” means a bid that is based on prices which are significantly less than cost for some bid items and significantly more than cost for others.
16. “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.] 17. “Workman” means a skilled mechanic, skilled workman, semiskilled mechanic, semiskilled workman or unskilled workman. The term does not include a design professional.
Sec. 3. NRS 338.1385 is hereby amended to read as follows:
FIRST
PARALLEL SECTION
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 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, 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 bid is unbalanced or, during the immediately preceding 3 years, the bidder has unbalanced a bid or schedule of values in connection with one or more public works contracts; or
(e) 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. 4. NRS 338.1385 is hereby amended to read as follows:
SECOND
PARALLEL SECTION
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 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, 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 bid is unbalanced or, during the immediately preceding 3 years, the bidder has unbalanced a bid or schedule of values in connection with one or more public works contracts; or
(e) 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. 5. NRS 338.143 is hereby amended to read as follows:
FIRST
PARALLEL SECTION
338.143 1. Except
as otherwise provided in subsection 6 and NRS 338.1907, a local government that
awards a contract for the construction, alteration or repair of a public work
in accordance with paragraph (b) 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 that
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 6, a local government 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 local government 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 local government to remain on the list. Offers for bids which are made pursuant to this subsection must be sent by certified mail.
3. 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.
4. 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 responsive or responsible;
(b) The quality of the services, materials, equipment or labor offered does not conform to the approved plan or specifications; [or]
(c) The bid is unbalanced or, during the immediately preceding 3 years, the bidder has unbalanced a bid or schedule of values in connection with one or more public works contracts; or
(d) The public interest would be served by such a rejection.
5. Before 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 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 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 local government expects to save by rejecting the bids and performing the project itself.
6. 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, inclusive.
Sec. 6. NRS 338.143 is hereby amended to read as follows:
SECOND
PARALLEL SECTION
338.143 1. Except
as otherwise provided in subsection 7, a local government that awards a
contract for the construction, alteration or repair of a public work in
accordance with paragraph (b) 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 that
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 local government 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 local government 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 local government to remain on the list. Offers for bids which are made pursuant to this subsection must be sent by certified mail.
3. 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.
4. 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 responsive or responsible;
(b) The quality of the services, materials, equipment or labor offered does not conform to the approved plan or specifications; [or]
(c) The bid is unbalanced or, during the immediately preceding 3 years, the bidder has unbalanced a bid or schedule of values in connection with one or more public works contracts; or
(d) The public interest would be served by such a rejection.
5. Before 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 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 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 local government expects to save by rejecting the bids and performing the project itself.
6. In preparing the estimated cost of a project pursuant to subsection 5, 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.
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, inclusive.”.
Amend sec. 3, page 2, by deleting lines 12 through 32 and inserting:
“the provisions of the contract so provide. [Not more than 90 percent of the amount of any progress payment may be paid] Payments must be based upon estimates of work completed under the terms of the contract that are approved by the public body. The public body shall withhold payment of 5 percent of the value of the work completed until 50 percent of the work required by the contract has been performed. Thereafter the public body may pay any of the remaining progress payments without withholding additional retainage if, in the opinion of the public body, satisfactory progress is being made in the work. If, after 50 percent of the work required by the contract has been performed and, in the opinion of the public body, satisfactory progress is not being made in the work, the public body may withhold additional retainage from any progress payment in an amount sufficient to establish the retainage at up to 10 percent of the value of the work completed up to that time.
2. Except as otherwise provided in NRS 338.525, a public”.
Amend sec. 3, page 3, line 1, by deleting “[3.]4.” and inserting “3.”.
Amend sec. 3, page 3, line 17, by deleting “[4.]5.” and inserting “4.”.
Amend the bill as a whole by deleting sec. 4 and adding a new section designated sec. 9, following sec. 3, to read as follows:
“Sec. 9. 1. This section and sections 1, 2, 3, 5, 7 and 8 of this act become effective on October 1, 2003.
2. Sections 3 and 5 of this act expire by limitation on April 30, 2013.
3. Sections 4 and 6 of this act become effective at 12:01 a.m. on May 1, 2013.”.
Amend the title of the bill to read as follows:
“AN ACT relating to public works; prohibiting a public body from withholding payment from contractors in excess of retainage in certain circumstances; authorizing the State or a local government to reject a bid on the basis that the bid is unbalanced or on the basis that the contractor submitting the bid has unbalanced a bid or a schedule of values within the immediately preceding 3 years; revising the provisions prescribing the amount that may be withheld from the progress payments made to contractors on public works; and providing other matters properly relating thereto.”.
Amend the summary of the bill to read as follows:
“SUMMARY—Revises provisions relating to public works projects. (BDR 28‑996)”.