[Rev. 2/10/2015 5:02:05
PM--2014R2]
TITLE 28 - PUBLIC WORKS AND PLANNING
CHAPTER 338 - PUBLIC WORKS
GENERAL PROVISIONS
NRS 338.010 Definitions.
[Effective through June 30, 2017.]
NRS 338.010 Definitions.
[Effective July 1, 2017.]
NRS 338.011 Applicability:
Contracts related to normal operation and normal maintenance; contracts related
to emergency.
NRS 338.0115 Inapplicability
of this chapter and chapters 332 and 339 of NRS to certain projects constructed by
private developers.
NRS 338.0117 Qualification
to receive preference in bidding: Submission of affidavit to public body
certifying compliance with requirements; provisions required to be included in
contract; written objections for failure to comply with requirements; penalty;
annual report to Legislative Commission by public body concerning such
contracts. [Effective through June 30, 2017.]
NRS 338.0117 Qualification
to receive preference in bidding: Submission of affidavit to public body
certifying compliance with requirements; provisions required to be included in
contract; written objections for failure to comply with requirements; penalty; annual
report to Legislative Commission by public body concerning such contracts.
[Effective July 1, 2017.]
NRS 338.0118 Adoption
by local government of policies providing for use of certain recycled materials
in public road and highway projects; use of such materials; exception.
NRS 338.012 Regulations
of Labor Commissioner.
EMPLOYMENT
General Provisions
NRS 338.013 Inclusion
of identifying number from Labor Commissioner in advertisement or solicitation;
reports by public bodies and contractors to Labor Commissioner.
NRS 338.015 Enforcement
by Labor Commissioner and Attorney General.
NRS 338.016 Civil
action to recover damages resulting from commission of offense.
NRS 338.017 Temporary
disqualification of contractor after imposition of administrative penalty;
notification of State Contractors’ Board.
NRS 338.018 Applicability
to certain contracts for construction work of Nevada System of Higher
Education. [Effective through June 30, 2017.]
NRS 338.018 Applicability
to certain contracts for construction work of Nevada System of Higher
Education. [Effective July 1, 2017.]
Wages
NRS 338.020 Hourly
and daily rate of wages must not be less than prevailing wage in county; rate
must be included in contract and posted on-site; payment of overtime; wages
paid in accordance with jurisdictional classes recognized in locality.
NRS 338.030 Procedure
for determination of prevailing wage in county.
NRS 338.035 Discharge
of part of obligation of contractor or subcontractor engaged on public work to
pay wages by making certain contributions in name of worker.
NRS 338.040 Workers
deemed to be employed on public works.
NRS 338.050 Contractual
relationships: Applicability of NRS 338.010 to 338.090, inclusive.
NRS 338.060 Forfeitures
when workers paid less than designated rates or willfully reported in
inaccurate or incomplete manner or not reported to public body; forfeiture
clause in contracts; regulation establishing sliding scale for penalties;
recovery of investigative costs and attorney’s fees; waiver or reduction of
penalty.
NRS 338.070 Investigations
of violations by public bodies; withholding of certain sums by public bodies
and contractors; maintenance and inspection of records regarding employees;
penalty for noncompliance.
NRS 338.072 Requirement
for subcontractor to hold state business license.
NRS 338.075 Applicability
to certain contracts for construction work of Nevada System of Higher Education.
[Effective through June 30, 2017.]
NRS 338.075 Applicability
to certain contracts for construction work of Nevada System of Higher
Education. [Effective July 1, 2017.]
NRS 338.080 Exemptions.
NRS 338.090 Penalties.
Employment Practices
NRS 338.125 Fair
employment practices: Contents of contracts concerning public works; breach of
contract.
NRS 338.130 Preferential
employment in construction of public works.
NRS 338.135 Rental
or lease of trucks or truck and trailer combinations by contractors or
subcontractors: Hourly rate for vehicle and services of driver.
GENERAL PROCEDURES FOR AWARDING CONTRACTS
Limitations on General Applicability of Provisions
NRS 338.1373 Option
of local governments to comply with alternative procedures; inapplicability of
certain provisions to contracts awarded by Department of Transportation.
[Effective through June 30, 2017.]
NRS 338.1373 Option
of local governments to comply with alternative procedures; inapplicability of
certain provisions to contracts awarded by Department of Transportation.
[Effective July 1, 2017.]
Qualification of Bidders; Qualification of Subcontractors on
State Public Works
NRS 338.1375 State
public works: Acceptance of bids from qualified bidders only; adoption and use
of criteria for qualification of bidders.
NRS 338.1376 State
public works: Qualification of subcontractors; disqualification; appeal.
NRS 338.1377 Local
government public works: Adoption of criteria for qualification of bidders.
NRS 338.1378 Local
government public works: Advertisement required before acceptance of
applications for qualification of bidders.
NRS 338.1379 State
and local government public works: Submission of application to qualify as
bidder; investigation of applicant; determination; notice; period of
qualification; use of criteria; confidentiality of certain financial
information concerning applicant; denial or revocation of qualification in
certain circumstances.
NRS 338.1381 State
and local government public works: Procedure upon appeal of denial of
application to qualify as bidder or disqualification of subcontractor.
[Effective through June 30, 2017.]
NRS 338.1381 State
and local government public works: Procedure upon appeal of denial of
application to qualify as bidder or disqualification of subcontractor.
[Effective July 1, 2017.]
NRS 338.1382 Local
government public works: Alternative procedure for qualification of bidders.
Preference for Bids on Smaller Contracts Submitted by Local
Businesses Owned by Veterans With Service-Connected Disabilities
NRS 338.1384 Definitions.
NRS 338.13841 “Business
owned by a veteran with a service-connected disability” defined.
NRS 338.13842 “Local
business” defined.
NRS 338.13843 “Veteran
with a service-connected disability” defined.
NRS 338.13844 Amount
of preference.
NRS 338.13845 Fraudulent
acts.
NRS 338.13846 Duty
of State Public Works Division to report to Legislature.
NRS 338.13847 Regulations.
Advertising; Acceptance of Bids; Award of Contract
NRS 338.1385 Advertising
for bids and compliance with certain provisions required for commencement of
certain public works; quarterly reports of awarded contracts by authorized
representatives; availability of plans and specifications for public
inspection; award of contract to lowest responsive and responsible bidder;
rejection of bids; authority to award contract without competitive bidding if
no bids received in response to advertisement for bids in certain
circumstances; requirements before public body may commence public work itself;
exemptions. [Effective through June 30, 2017.]
NRS 338.1385 Advertising
for bids and compliance with certain provisions required for commencement of
certain public works; quarterly reports of awarded contracts by authorized
representatives; availability of plans and specifications for public
inspection; award of contract to lowest responsive and responsible bidder;
rejection of bids; authority to award contract without competitive bidding if
no bids received in response to advertisement for bids in certain
circumstances; requirements before public body may commence public work itself;
exemptions. [Effective July 1, 2017.]
NRS 338.1386 State
or local government to award contract for smaller public work to contractor or
perform public work itself.
NRS 338.13862 Requirements
for awarding contract for smaller public work to contractor.
NRS 338.13864 Attestation
required before State or local government may perform certain smaller public
works itself.
NRS 338.1389 Contract
for public work for which estimated cost exceeds $250,000 must be awarded to
contractor who submits best bid; certain bids deemed best bid; eligibility to
receive preference in bidding; issuance of certificate of eligibility by State
Contractors’ Board; regulations; fees; sanctions; objections.
NRS 338.13895 Award
of contract to unlicensed or improperly licensed contractor prohibited;
replacement of unacceptable subcontractor before contract is awarded;
rescission of award of contract to unlicensed or improperly licensed contractor
before commencement of work.
NRS 338.139 Awarding
of contract to specialty contractor: Conditions.
ADDITIONAL PROCEDURES, CONDITIONS, DUTIES AND LIMITATIONS RELATING TO CONTRACTS
General Provisions
NRS 338.140 Requirements
and limitations relating to drafting of specifications for bids; documents
generated by bidder in preparation or determination of prices included in bid.
NRS 338.141 Bids
to include certain information concerning subcontractors and prime contractors;
when bids deemed not responsive with respect to subcontractors; requirements
and penalties for substitution of named subcontractors.
NRS 338.1415 Local
government prohibited from accepting bid on contract for public work submitted
by contractor who materially breached certain contracts for public works.
NRS 338.142 Notice
of protest of award of contract: Period for filing; contents; posting and
disposition of bond or security; stay of action; immunity of public body from
liability to bidder.
NRS 338.1425 Prohibition
against public body entering into contract with design professional who is not
member of design-build team for services on public work until certain period
after public body transmits certain information to licensing board of design
professional; posting of such information by licensing board.
NRS 338.1427 Duty
of State Public Works Division to report to Office of Economic Development
concerning local emerging small businesses.
Alternative Procedures for Local Governments
NRS 338.143 Advertising
for bids and compliance with certain provisions required for commencement of
certain public works; quarterly reports of awarded contracts by authorized
representatives; availability of plans and specifications for public
inspection; award of contract to lowest responsive and responsible bidder;
rejection of bids; authority to award contract without competitive bidding if
no bids received in response to advertisement for bids in certain
circumstances; requirements before local government may commence public work
itself; exemptions. [Effective through June 30, 2017.]
NRS 338.143 Advertising
for bids and compliance with certain provisions required for commencement of
certain public works; quarterly reports of awarded contracts by authorized
representatives; availability of plans and specifications for public
inspection; award of contract to lowest responsive and responsible bidder;
rejection of bids; authority to award contract without competitive bidding if
no bids received in response to advertisement for bids in certain
circumstances; requirements before local government may commence public work
itself; exemptions. [Effective July 1, 2017.]
NRS 338.1435 Constructability
review required before advertising for bids.
NRS 338.1442 Local
government to award contract for smaller public work to contractor or perform
public work itself.
NRS 338.1444 Requirements
for awarding contract for smaller public work to contractor.
NRS 338.1446 Attestation
required before local government may perform certain smaller public works
itself.
NRS 338.147 Contract
for public work for which estimated cost exceeds $250,000 must be awarded to
contractor who submits best bid; certain bids deemed best bid; eligibility to
receive preference in bidding; issuance of certificate of eligibility by State
Contractors’ Board; regulations; fees; sanctions; objections.
NRS 338.1475 Award
of contract to unlicensed or improperly licensed contractor prohibited;
replacement of unacceptable subcontractor before contract is awarded;
rescission of award of contract to unlicensed or improperly licensed contractor
before commencement of work.
NRS 338.148 Awarding
of contract to specialty contractor: Conditions.
Provisions Required in Contracts
NRS 338.150 Provisions
requiring use of method of alternate dispute resolution before initiation of
judicial action; exception.
NRS 338.153 Provision
requiring persons who provide labor, equipment, materials, supplies or services
for public work to comply with all applicable state and local laws.
NRS 338.155 Provisions
relating to design professional who is not member of design-build team.
CONTRACTS FOR TRANSPORTATION FACILITIES
NRS 338.161 “Transportation
facility” defined.
NRS 338.162 Alternative
methods of authorization.
NRS 338.163 Submission
of request to public body; contents of request.
NRS 338.164 Request
for submission of proposals by public body.
NRS 338.166 Approval
of request or proposal: Determination of public purpose; staff reports; copy of
request or proposal to be furnished to affected governmental entities; fee;
approval contingent on entering agreement with public body; establishment of
date for development of or commencement of construction of transportation
facility.
NRS 338.167 Contract
for transportation services.
NRS 338.168 Federal,
state or local assistance.
CONTRACTS INVOLVING CONSTRUCTION MANAGERS AT RISK
NRS 338.1685 Declaration
of legislative intent. [Effective through June 30, 2017.]
NRS 338.169 Public
body authorized to construct public work by selecting and entering into contracts
with construction manager at risk; limitations. [Effective through June 30,
2017.]
NRS 338.1691 Qualifications
for construction manager at risk. [Effective through June 30, 2017.]
NRS 338.1692 Advertising
for proposals for construction manager at risk; contents of request for
proposals; requirements for proposals. [Effective through June 30, 2017.]
NRS 338.1693 Procedure
for selection of most qualified applicants; minimum number of proposals
required; negotiation of contract for preconstruction services; availability of
certain information to applicants and public. [Effective through June 30,
2017.]
NRS 338.16935 Contract
between construction manager at risk and subcontractor for certain
preconstruction services. [Effective through June 30, 2017.]
NRS 338.1696 Negotiation
of contract for construction of public work or portion thereof with
construction manager at risk; awarding of contract if public body unable to
negotiate satisfactory contract with construction manager at risk; provision by
construction manager at risk of information concerning public work and
subcontractors. [Effective through June 30, 2017.]
NRS 338.1697 Authorized
provision in contract with construction manager at risk for construction of
public work or portion thereof for guaranteed maximum price. [Effective through
June 30, 2017.]
NRS 338.1698 Required
and authorized provisions in contract for construction of public work or
portion thereof awarded to construction manager at risk. [Effective through
June 30, 2017.]
NRS 338.16985 Duties
and powers of construction manager at risk who enters into contract for
construction of public work or portion thereof. [Effective through June 30,
2017.]
NRS 338.16991 Contract
between construction manager at risk and subcontractor to provide labor,
materials or equipment on project: Eligibility; procedure for determination of
qualification of subcontractor to submit proposal. [Effective through June 30,
2017.]
NRS 338.16995 Contract
between construction manager at risk and subcontractor to provide labor,
materials or equipment on project: Authority to enter into; procedure for
awarding subcontracts of certain estimated value; substitution of subcontractor
on such subcontracts; availability of certain information to applicants and
public. [Effective through June 30, 2017.]
CONTRACTS INVOLVING DESIGN-BUILD TEAMS, PRIME CONTRACTORS OR
NONPROFIT ORGANIZATIONS
General Provisions
NRS 338.1711 Contracts
for which public body is required or authorized to enter into with prime
contractor or design-build team. [Effective through June 30, 2017.]
NRS 338.1711 Contracts
for which public body is required or authorized to enter into with prime
contractor or design-build team. [Effective July 1, 2017.]
NRS 338.1715 Procedure
for selecting design-build team.
NRS 338.1717 Employment
of architect, general contractor, construction manager as agent, landscape
architect or engineer as consultant.
NRS 338.1718 Contract
with construction manager as agent.
Procedures for Awarding Contracts to Design-Build Teams
NRS 338.1721 Qualifications
of design-build team.
NRS 338.1723 Advertisement
for preliminary proposals.
NRS 338.1725 Selection
of finalists based on preliminary proposals; minimum number of proposals
required; availability to public of certain information.
NRS 338.1727 Request
for and submission of final proposals; selection or rejection of final
proposals; awarding of contract; partial reimbursement of unsuccessful
finalists in certain circumstances; contents of contract; availability to
public of certain information.
PREFERENCE WHEN COMPETING FOR PUBLIC WORKS
NRS 338.173 Certificate
of eligibility to receive preference when competing for public works to certain
design professionals: Issuance; duration; ineligibility for submission of false
information; regulations; fees; written objections.
NOTIFICATION OF LICENSING BOARDS
NRS 338.175 Substantially
incomplete or rejected plans submitted by registered architect, interior
designer, residential designer or landscape architect.
NRS 338.176 Substantially
incomplete or rejected plans submitted by licensed professional engineer or
land surveyor.
DESIGN, CONSTRUCTION, RENOVATION AND DEMOLITION OF PUBLIC
WORKS
General Provisions
NRS 338.177 Lease
of property acquired by local government for public work pending completion of
public work.
NRS 338.180 Accommodation
of persons with physical handicap or disability; verification of conformity
with requirements; enforcement.
NRS 338.185 Public
body to reimburse contractor for certain costs of locating underground facility
of public utility.
Energy and Environmental Design Requirements
NRS 338.1905 Retrofitting
of state buildings for energy efficiency: Appointment of energy retrofit
coordinators and person to assist coordinators. [Expired by limitation.]
NRS 338.1906 Retrofitting
of state buildings for energy efficiency: Duties of energy retrofit
coordinators and State Board of Examiners; procedures for requesting and
approving proposals; limitation on money committed beyond biennium;
restrictions on approval of change orders to executed contracts; projects
exempt from certain procedural requirements. [Expired by limitation.]
NRS 338.1907 Retrofitting
of local governmental buildings for energy efficiency: Duties of energy
retrofit coordinators and local governments; procedures for requesting and
approving proposals; restrictions on approval of change orders to executed
contracts; projects exempt from certain procedural requirements. [Expired by
limitation.]
NRS 338.1908 Retrofitting
of local governmental buildings, facilities and structures with consideration
of use of sources of renewable energy. [Effective through June 30, 2017.]
NRS 338.1908 Retrofitting
of local governmental buildings, facilities and structures with consideration
of use of sources of renewable energy. [Effective July 1, 2017, through
December 31, 2025.]
NRS 338.1908 Retrofitting
of local governmental buildings, facilities and structures with consideration
of use of sources of renewable energy. [Effective January 1, 2026.]
Additional Conditions and Limitations
NRS 338.193 Standards
for plumbing fixtures.
NRS 338.195 Survey
for presence of asbestos required before renovation or demolition of public
building.
NRS 338.200 Prohibition
against naming public building or structure after member of governing body.
PROGRESS PAYMENTS
General Provisions
NRS 338.400 Definitions.
NRS 338.415 “Progress
bill” defined.
NRS 338.420 “Progress
payment” defined.
NRS 338.425 “Retainage”
defined.
NRS 338.430 “Retainage
bill” defined.
NRS 338.435 “Retainage
payment” defined.
NRS 338.455 Methods
to be used for providing notice.
NRS 338.460 Dates
to be used for calculating accrual of interest on retainage.
Applicability and Limitations
NRS 338.480 Provisions
inapplicable to certain contracts made by Department of Transportation.
NRS 338.485 Waiver
or modification of right, obligation or liability set forth in NRS 338.400 to 338.645,
inclusive, prohibited; certain conditions, stipulations or provisions of
contract void and unenforceable.
NRS 338.490 Limitations
on requiring release or waiver of right to receive progress payment or
retainage payment.
Payments Made by Public Body to Contractor
NRS 338.510 Submittal
of progress bills.
NRS 338.515 Time
for making payments; amounts paid; amounts withheld as retainage; rate of
interest paid on amounts withheld; powers of Labor Commissioner when worker is
owed wages. [Effective through June 30, 2015.]
NRS 338.515 Time
for making payments; amounts paid; amounts withheld as retainage; rate of
interest paid on amounts withheld; powers of Labor Commissioner when worker is
owed wages. [Effective July 1, 2015.]
NRS 338.520 Payment
of outstanding balance upon occupancy, use or recording of notice of
completion.
NRS 338.525 Withholding
amounts for failure of contractor to comply with contract or applicable
building code, law or regulation; payment of amounts withheld upon confirmation
of correction of condition. [Effective through June 30, 2015.]
NRS 338.525 Withholding
amounts for failure of contractor to comply with contract or applicable
building code, law or regulation; payment of amounts withheld upon confirmation
of correction of condition. [Effective July 1, 2015.]
NRS 338.530 Payment
of interest on amounts withheld improperly. [Effective through June 30, 2015.]
NRS 338.530 Payment
of interest on amounts withheld improperly. [Effective July 1, 2015.]
NRS 338.535 Public
body to provide notice concerning progress payments and retainage payments to
certain subcontractors and suppliers.
Payments Made by Contractor to Subcontractors and Suppliers
NRS 338.550 Time
for making payments; amounts paid.
NRS 338.555 Amounts
withheld as retainage; payment of interest. [Effective through June 30, 2015.]
NRS 338.555 Amounts
withheld as retainage; payment of interest. [Effective July 1, 2015.]
NRS 338.560 Withholding
amounts for failure of subcontractor or supplier to comply with subcontract or
applicable building code, law or regulation or for claim for wages against
subcontractor; payment of amounts withheld upon correction of condition.
[Effective through June 30, 2015.]
NRS 338.560 Withholding
amounts for failure of subcontractor or supplier to comply with subcontract or
applicable building code, law or regulation or for claim for wages against
subcontractor; payment of amounts withheld upon correction of condition.
[Effective July 1, 2015.]
NRS 338.565 Payment
of interest on amounts withheld improperly.
NRS 338.570 Contractor
to provide notice concerning progress payments and retainage payments to
certain subcontractors and suppliers.
Payments Made by Subcontractor to Subcontractors and Suppliers
NRS 338.590 Time
for making payments; amounts paid.
NRS 338.595 Amounts
withheld as retainage; payment of interest. [Effective through June 30, 2015.]
NRS 338.595 Amounts
withheld as retainage; payment of interest. [Effective July 1, 2015.]
NRS 338.600 Withholding
amounts for failure of subcontractor or supplier to comply with subcontract or
applicable building code, law or regulation; payment of amounts withheld upon
correction of condition. [Effective through June 30, 2015.]
NRS 338.600 Withholding
amounts for failure of subcontractor or supplier to comply with subcontract or
applicable building code, law or regulation; payment of amounts withheld upon
correction of condition. [Effective July 1, 2015.]
NRS 338.605 Payment
of interest on amounts withheld improperly.
NRS 338.610 Subcontractor
to provide notice concerning progress payments and retainage payments to
certain subcontractors and suppliers.
Remedies
NRS 338.630 Action
by contractor for alternate writ of mandamus to compel performance by public
body.
NRS 338.635 Action
by subcontractor or supplier to remedy unjustified or excessive withholding.
NRS 338.640 Award
of reasonable costs and attorney’s fees to prevailing party.
NRS 338.645 Other
rights and remedies not affected.
_________
GENERAL PROVISIONS
NRS 338.010 Definitions. [Effective through June 30, 2017.] As used in this chapter:
1. “Authorized representative” means a
person designated by a public body to be responsible for the development,
solicitation, award or administration of contracts for public works pursuant to
this chapter.
2. “Contract” means a written contract
entered into between a contractor and a public body for the provision of labor,
materials, equipment or supplies for a public work.
3. “Contractor” means:
(a) A person who is licensed pursuant to the
provisions of chapter 624 of NRS.
(b) A design-build team.
4. “Day labor” means all cases where
public bodies, their officers, agents or employees, hire, supervise and pay the
wages thereof directly to a worker or workers employed by them on public works
by the day and not under a contract in writing.
5. “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.
6. “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 landscape architecture pursuant to chapter
623A of NRS or who is licensed as a professional engineer pursuant to chapter 625 of NRS.
7. “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, interior design or
residential design 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.
8. “Division” means the State Public Works
Division of the Department of Administration.
9. “Eligible bidder” means a person who
is:
(a) Found to be a responsible and responsive
contractor by a local government or its authorized representative 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 or its authorized
representative 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 338.1382.
10. “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.
11. “Governing body” means the board,
council, commission or other body in which the general legislative and fiscal
powers of a local government are vested.
12. “Horizontal construction” means the
construction of any fixed work, including any irrigation, drainage, water
supply, flood control, harbor, railroad, highway, tunnel, airport or airway,
sewer, sewage disposal plant or water treatment facility and any ancillary
vertical components thereof, bridge, inland waterway, pipeline for the
transmission of petroleum or any other liquid or gaseous substance, pier, and
work incidental thereto. The term does not include vertical construction, the
construction of any terminal or other building of an airport or airway, or the
construction of any other building.
13. “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, 538, 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. The term includes a person who has been
designated by the governing body of a local government to serve as its
authorized representative.
14. “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 5 or 6 of NRS 338.070.
15. “Prime contractor” means a contractor
who:
(a) Contracts to construct an entire project;
(b) Coordinates all work performed on the entire
project;
(c) Uses his or her own workforce to perform all
or a part of the public work; and
(d) Contracts for the services of any
subcontractor or independent contractor or is responsible for payment to any
contracted subcontractors or independent contractors.
Ê 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.
16. “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.
17. “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;
(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 money; and
(10) All other publicly owned works and
property.
(b) A building for the Nevada System of Higher
Education 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.
18. “Specialty contractor” means a person
who is licensed to conduct business as described in subsection 4 of NRS 624.215.
19. “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,
Ê 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.
20. “Subcontract” means a written contract
entered into between:
(a) A contractor and a subcontractor or supplier;
or
(b) A subcontractor and another subcontractor or
supplier,
Ê for the
provision of labor, materials, equipment or supplies for a construction
project.
21. “Subcontractor” means a person who:
(a) Is licensed pursuant to the provisions of chapter 624 of NRS or performs such work that
the person is not required to be licensed pursuant to chapter 624 of NRS; and
(b) Contracts with a contractor, another
subcontractor or a supplier to provide labor, materials or services for a
construction project.
22. “Supplier” means a person who provides
materials, equipment or supplies for a construction project.
23. “Vertical construction” means the
construction or remodeling of any building, structure or other improvement that
is predominantly vertical, including, without limitation, a building, structure
or improvement for the support, shelter and enclosure of persons, animals,
chattels or movable property of any kind, and any improvement appurtenant
thereto.
24. “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 worker.
25. “Worker” means a skilled mechanic,
skilled worker, semiskilled mechanic, semiskilled worker or unskilled worker in
the service of a contractor or subcontractor under any appointment or contract
of hire or apprenticeship, express or implied, oral or written, whether
lawfully or unlawfully employed. The term does not include a design professional.
[1 1/2:139:1937; added 1941, 389; 1931 NCL § 6179.51
1/2]—(NRS A 1969, 735; 1979, 1288; 1981, 526; 1983, 130, 1573; 1989, 1965; 1993, 392, 2131, 2247; 1995, 691; 1999, 1849, 1991, 2396, 3472, 3502; 2001, 252, 1143, 1268, 2022, 2258, 2276; 2003, 119, 124, 1518, 1986, 2411, 2489; 2005, 1793; 2011, 490, 2959; 2013, 750, 2958)
NRS 338.010 Definitions. [Effective
July 1, 2017.] As used in this
chapter:
1. “Authorized representative” means a
person designated by a public body to be responsible for the development,
solicitation, award or administration of contracts for public works pursuant to
this chapter.
2. “Contract” means a written contract
entered into between a contractor and a public body for the provision of labor,
materials, equipment or supplies for a public work.
3. “Contractor” means:
(a) A person who is licensed pursuant to the
provisions of chapter 624 of NRS.
(b) A design-build team.
4. “Day labor” means all cases where
public bodies, their officers, agents or employees, hire, supervise and pay the
wages thereof directly to a worker or workers employed by them on public works
by the day and not under a contract in writing.
5. “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.
6. “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 landscape architecture pursuant to chapter
623A of NRS or who is licensed as a professional engineer pursuant to chapter 625 of NRS.
7. “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, interior design or
residential design 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.
8. “Division” means the State Public Works
Division of the Department of Administration.
9. “Eligible bidder” means a person who
is:
(a) Found to be a responsible and responsive
contractor by a local government or its authorized representative 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 or its authorized
representative 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 338.1382.
10. “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.
11. “Governing body” means the board,
council, commission or other body in which the general legislative and fiscal
powers of a local government are vested.
12. “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, 538, 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. The term includes a person who has been
designated by the governing body of a local government to serve as its
authorized representative.
13. “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 5 or 6 of NRS 338.070.
14. “Prime contractor” means a contractor
who:
(a) Contracts to construct an entire project;
(b) Coordinates all work performed on the entire
project;
(c) Uses his or her own workforce to perform all
or a part of the public work; and
(d) Contracts for the services of any
subcontractor or independent contractor or is responsible for payment to any
contracted subcontractors or independent contractors.
Ê 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.
15. “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.
16. “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;
(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 money; and
(10) All other publicly owned works and
property.
(b) A building for the Nevada System of Higher
Education 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.
17. “Specialty contractor” means a person
who is licensed to conduct business as described in subsection 4 of NRS 624.215.
18. “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,
Ê 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.
19. “Subcontract” means a written contract
entered into between:
(a) A contractor and a subcontractor or supplier;
or
(b) A subcontractor and another subcontractor or
supplier,
Ê for the
provision of labor, materials, equipment or supplies for a construction
project.
20. “Subcontractor” means a person who:
(a) Is licensed pursuant to the provisions of chapter 624 of NRS or performs such work that
the person is not required to be licensed pursuant to chapter 624 of NRS; and
(b) Contracts with a contractor, another
subcontractor or a supplier to provide labor, materials or services for a
construction project.
21. “Supplier” means a person who provides
materials, equipment or supplies for a construction project.
22. “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 worker.
23. “Worker” means a skilled mechanic,
skilled worker, semiskilled mechanic, semiskilled worker or unskilled worker in
the service of a contractor or subcontractor under any appointment or contract
of hire or apprenticeship, express or implied, oral or written, whether
lawfully or unlawfully employed. The term does not include a design
professional.
[1 1/2:139:1937; added 1941, 389; 1931 NCL § 6179.51
1/2]—(NRS A 1969, 735; 1979, 1288; 1981, 526; 1983, 130, 1573; 1989, 1965; 1993, 392, 2131, 2247; 1995, 691; 1999, 1849, 1991, 2396, 3472, 3502; 2001, 252, 1143, 1268, 2022, 2258, 2276; 2003, 119, 124, 1518, 1986, 2411, 2489; 2005, 1793; 2011, 490, 2959; 2013, 750, 2958, 2961,
effective July 1, 2017)
NRS 338.011 Applicability: Contracts related to normal operation and normal
maintenance; contracts related to emergency. The
requirements of this chapter do not apply to a contract:
1. Awarded in compliance with chapter 332 or 333
of NRS which is directly related to the normal operation of the public body or
the normal maintenance of its property.
2. Awarded to meet an emergency which results
from a natural or artificially created disaster and which threatens the health,
safety or welfare of the public. If the public body or its authorized
representative determines that an emergency exists, a contract or contracts
necessary to contend with the emergency may be let without complying with the
requirements of this chapter. If such emergency action was taken by the
authorized representative, the authorized representative shall report the
contract or contracts to the public body at the next regularly scheduled
meeting of the public body.
(Added to NRS by 1981, 526; A 2003, 2414)
NRS 338.0115 Inapplicability of this chapter and chapters 332
and 339 of NRS to certain projects
constructed by private developers.
1. Except as otherwise provided in
subsection 2, the provisions of this chapter and chapters
332 and 339 of NRS do not apply to a
contract under which a private developer, for the benefit of a private
development, constructs a water or sewer line extension and any related
appurtenances:
(a) Which qualify as a public work pursuant to NRS 338.010; and
(b) For which the developer will receive a
monetary contribution or refund from a public body as reimbursement for a
portion of the costs of the project.
2. If, pursuant to the provisions of such
a contract, the developer is not responsible for paying all of the initial
construction costs of the project, the provisions of NRS
338.0117, 338.013 to 338.090,
inclusive, and 338.1373 to 338.148,
inclusive, apply to the contract.
(Added to NRS by 1995, 2648; A 1999, 2397; 2011, 41)
NRS 338.0117 Qualification to receive preference in bidding: Submission of
affidavit to public body certifying compliance with requirements; provisions
required to be included in contract; written objections for failure to comply
with requirements; penalty; annual report to Legislative Commission by public
body concerning such contracts. [Effective through June 30, 2017.]
1. To qualify to receive a preference in
bidding pursuant to subsection 2 of NRS 338.1389,
subsection 2 of NRS 338.147, subsection 3 of NRS 338.1693, subsection 3 of NRS
338.1727 or subsection 2 of NRS
408.3886, a contractor, an applicant or a design-build team, respectively,
must submit to the public body sponsoring or financing a public work a signed
affidavit which certifies that, for the duration of the project, collectively,
and not on any specific day:
(a) At least 50 percent of the workers employed
on the public work, including, without limitation, any employees of the
contractor, applicant or design-build team and of any subcontractor engaged on
the public work, will hold a valid driver’s license or identification card
issued by the Department of Motor Vehicles of the State of Nevada;
(b) All vehicles used primarily for the public
work will be:
(1) Registered and partially apportioned
to Nevada pursuant to the International Registration Plan, as adopted by the
Department of Motor Vehicles pursuant to NRS
706.826; or
(2) Registered in this State;
(c) If applying to receive a preference in
bidding pursuant to subsection 3 of NRS 338.1727
or subsection 2 of NRS 408.3886, at
least 50 percent of the design professionals working on the public work,
including, without limitation, employees of the design-build team and of any
subcontractor or consultant engaged in the design of the public work, will have
a valid driver’s license or identification card issued by the Department of
Motor Vehicles of the State of Nevada; and
(d) The contractor, applicant or design-build
team and any subcontractor engaged on the public work will maintain and make
available for inspection within this State his or her records concerning
payroll relating to the public work.
2. Any contract for a public work that is
awarded to a contractor, applicant or design-build team who submits the
affidavit described in subsection 1 as a result of the contractor, applicant or
design-build team receiving a preference in bidding described in subsection 1
must:
(a) Include a provision in the contract that
substantially incorporates the requirements of paragraphs (a) to (d),
inclusive, of subsection 1; and
(b) Provide that a failure to comply with any
requirement of paragraphs (a) to (d), inclusive, of subsection 1 entitles the
public body to a penalty only as provided in subsections 5 and 6.
3. A person who submitted a bid on the
public work or an entity who believes that a contractor, applicant or
design-build team has obtained a preference in bidding as described in
subsection 1 but has failed to comply with a requirement of paragraphs (a) to
(d), inclusive, of subsection 1 may file, before the substantial completion of
the public work, a written objection with the public body for which the
contractor, applicant or design-build team is performing the public work. A
written objection authorized pursuant to this subsection must set forth proof
or substantiating evidence to support the belief of the person or entity that
the contractor, applicant or design-build team has failed to comply with a
requirement of paragraphs (a) to (d), inclusive, of subsection 1.
4. If a public body receives a written
objection pursuant to subsection 3, the public body shall determine whether the
objection is accompanied by the proof or substantiating evidence required
pursuant to 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. If the public body determines that the
objection is accompanied by the required proof or substantiating evidence or if
the public body determines on its own initiative that proof or substantiating
evidence of a failure to comply with a requirement of paragraphs (a) to (d),
inclusive, of subsection 1 exists, the public body shall determine whether the
contractor, applicant or design-build team has failed to comply with a
requirement of paragraphs (a) to (d), inclusive, of subsection 1 and the public
body or its authorized representative may proceed to award the contract
accordingly or, if the contract has already been awarded, seek the remedy
authorized in subsection 5.
5. A public body may recover, by civil
action against the party responsible for a failure to comply with a requirement
of paragraphs (a) to (d), inclusive, of subsection 1, a penalty as described in
subsection 6 for a failure to comply with a requirement of paragraphs (a) to
(d), inclusive, of subsection 1. If a public body recovers a penalty pursuant
to this subsection, the public body shall report to the State Contractors’
Board the date of the failure to comply, the name of each entity which failed
to comply and the cost of the contract to which the entity that failed to
comply was a party. The Board shall maintain this information for not less than
6 years. Upon request, the Board shall provide this information to any public
body or its authorized representative.
6. If a contractor, applicant or
design-build team submits the affidavit described in subsection 1, receives a
preference in bidding described in subsection 1 and is awarded the contract as
a result of that preference, the contract between the contractor, applicant or
design-build team and the public body, each contract between the contractor,
applicant or design-build team and a subcontractor and each contract between a
subcontractor and a lower tier subcontractor must provide that:
(a) If a party to the contract causes the
contractor, applicant or design-build team to fail to comply with a requirement
of paragraphs (a) to (d), inclusive, of subsection 1, the party is liable to
the public body for a penalty in the amount of 1 percent of the cost of the
largest contract to which he or she is a party;
(b) The right to recover the amount determined
pursuant to paragraph (a) by the public body pursuant to subsection 5 may be
enforced by the public body directly against the party that caused the failure
to comply with a requirement of paragraphs (a) to (d), inclusive, of subsection
1; and
(c) No other party to the contract is liable to
the public body for a penalty.
7. A public body that awards a contract
for a public work to a contractor, applicant or design-build team who submits
the affidavit described in subsection 1 and who receives a preference in
bidding described in subsection 1 shall, on or before July 31 of each year,
submit a written report to the Director of the Legislative Counsel Bureau for
transmittal to the Legislative Commission. The report must include information
on each contract for a public work awarded to a contractor, applicant or
design-build team who submits the affidavit described in subsection 1 and who
receives a preference in bidding described in subsection 1, including, without
limitation, the name of the contractor, applicant or design-build team who was
awarded the contract, the cost of the contract, a brief description of the
public work and a description of the degree to which the contractor, applicant
or design-build team and each subcontractor complied with the requirements of
paragraphs (a) to (d), inclusive, of subsection 1.
8. As used in this section:
(a) “Lower tier subcontractor” means a
subcontractor who contracts with another subcontractor to provide labor,
materials or services to the other subcontractor for a construction project.
(b) “Vehicle used primarily for the public work”
does not include any vehicle that is present at the site of the public work
only occasionally and for a purpose incidental to the public work including,
without limitation, the delivery of materials. Notwithstanding the provisions
of the paragraph, the term includes any vehicle which is:
(1) Owned or operated by the contractor or
any subcontractor who is engaged on the public work; and
(2) Present at the site of the public
work.
(Added to NRS by 2011, 39; A 2011, 2576;
2013, 1388)
NRS 338.0117 Qualification to receive
preference in bidding: Submission of affidavit to public body certifying
compliance with requirements; provisions required to be included in contract;
written objections for failure to comply with requirements; penalty; annual
report to Legislative Commission by public body concerning such contracts.
[Effective July 1, 2017.]
1. To qualify to receive a preference in
bidding pursuant to subsection 2 of NRS 338.1389,
subsection 2 of NRS 338.147, subsection 3 of NRS 338.1727 or subsection 2 of NRS 408.3886, a contractor, an applicant
or a design-build team, respectively, must submit to the public body sponsoring
or financing a public work a signed affidavit which certifies that, for the
duration of the project, collectively, and not on any specific day:
(a) At least 50 percent of the workers employed
on the public work, including, without limitation, any employees of the
contractor, applicant or design-build team and of any subcontractor engaged on
the public work, will hold a valid driver’s license or identification card
issued by the Department of Motor Vehicles of the State of Nevada;
(b) All vehicles used primarily for the public
work will be:
(1) Registered and partially apportioned
to Nevada pursuant to the International Registration Plan, as adopted by the
Department of Motor Vehicles pursuant to NRS
706.826; or
(2) Registered in this State;
(c) If applying to receive a preference in
bidding pursuant to subsection 3 of NRS 338.1727
or subsection 2 of NRS 408.3886, at
least 50 percent of the design professionals working on the public work,
including, without limitation, employees of the design-build team and of any
subcontractor or consultant engaged in the design of the public work, will have
a valid driver’s license or identification card issued by the Department of
Motor Vehicles of the State of Nevada; and
(d) The contractor, applicant or design-build
team and any subcontractor engaged on the public work will maintain and make
available for inspection within this State his or her records concerning payroll
relating to the public work.
2. Any contract for a public work that is
awarded to a contractor, applicant or design-build team who submits the
affidavit described in subsection 1 as a result of the contractor, applicant or
design-build team receiving a preference in bidding described in subsection 1
must:
(a) Include a provision in the contract that
substantially incorporates the requirements of paragraphs (a) to (d),
inclusive, of subsection 1; and
(b) Provide that a failure to comply with any requirement
of paragraphs (a) to (d), inclusive, of subsection 1 entitles the public body
to a penalty only as provided in subsections 5 and 6.
3. A person who submitted a bid on the
public work or an entity who believes that a contractor, applicant or design-build
team has obtained a preference in bidding as described in subsection 1 but has
failed to comply with a requirement of paragraphs (a) to (d), inclusive, of
subsection 1 may file, before the substantial completion of the public work, a
written objection with the public body for which the contractor, applicant or
design-build team is performing the public work. A written objection authorized
pursuant to this subsection must set forth proof or substantiating evidence to
support the belief of the person or entity that the contractor, applicant or
design-build team has failed to comply with a requirement of paragraphs (a) to
(d), inclusive, of subsection 1.
4. If a public body receives a written
objection pursuant to subsection 3, the public body shall determine whether the
objection is accompanied by the proof or substantiating evidence required
pursuant to 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. If the public body determines that the
objection is accompanied by the required proof or substantiating evidence or if
the public body determines on its own initiative that proof or substantiating
evidence of a failure to comply with a requirement of paragraphs (a) to (d),
inclusive, of subsection 1 exists, the public body shall determine whether the
contractor, applicant or design-build team has failed to comply with a
requirement of paragraphs (a) to (d), inclusive, of subsection 1 and the public
body or its authorized representative may proceed to award the contract
accordingly or, if the contract has already been awarded, seek the remedy
authorized in subsection 5.
5. A public body may recover, by civil
action against the party responsible for a failure to comply with a requirement
of paragraphs (a) to (d), inclusive, of subsection 1, a penalty as described in
subsection 6 for a failure to comply with a requirement of paragraphs (a) to
(d), inclusive, of subsection 1. If a public body recovers a penalty pursuant
to this subsection, the public body shall report to the State Contractors’
Board the date of the failure to comply, the name of each entity which failed
to comply and the cost of the contract to which the entity that failed to
comply was a party. The Board shall maintain this information for not less than
6 years. Upon request, the Board shall provide this information to any public
body or its authorized representative.
6. If a contractor, applicant or
design-build team submits the affidavit described in subsection 1, receives a
preference in bidding described in subsection 1 and is awarded the contract as
a result of that preference, the contract between the contractor, applicant or
design-build team and the public body, each contract between the contractor,
applicant or design-build team and a subcontractor and each contract between a
subcontractor and a lower tier subcontractor must provide that:
(a) If a party to the contract causes the
contractor, applicant or design-build team to fail to comply with a requirement
of paragraphs (a) to (d), inclusive, of subsection 1, the party is liable to
the public body for a penalty in the amount of 1 percent of the cost of the
largest contract to which he or she is a party;
(b) The right to recover the amount determined
pursuant to paragraph (a) by the public body pursuant to subsection 5 may be
enforced by the public body directly against the party that caused the failure
to comply with a requirement of paragraphs (a) to (d), inclusive, of subsection
1; and
(c) No other party to the contract is liable to
the public body for a penalty.
7. A public body that awards a contract
for a public work to a contractor, applicant or design-build team who submits
the affidavit described in subsection 1 and who receives a preference in
bidding described in subsection 1 shall, on or before July 31 of each year,
submit a written report to the Director of the Legislative Counsel Bureau for
transmittal to the Legislative Commission. The report must include information
on each contract for a public work awarded to a contractor, applicant or
design-build team who submits the affidavit described in subsection 1 and who
receives a preference in bidding described in subsection 1, including, without
limitation, the name of the contractor, applicant or design-build team who was
awarded the contract, the cost of the contract, a brief description of the
public work and a description of the degree to which the contractor, applicant
or design-build team and each subcontractor complied with the requirements of
paragraphs (a) to (d), inclusive, of subsection 1.
8. As used in this section:
(a) “Lower tier subcontractor” means a
subcontractor who contracts with another subcontractor to provide labor,
materials or services to the other subcontractor for a construction project.
(b) “Vehicle used primarily for the public work”
does not include any vehicle that is present at the site of the public work
only occasionally and for a purpose incidental to the public work including,
without limitation, the delivery of materials. Notwithstanding the provisions
of the paragraph, the term includes any vehicle which is:
(1) Owned or operated by the contractor or
any subcontractor who is engaged on the public work; and
(2) Present at the site of the public
work.
(Added to NRS by 2011, 39; A 2011, 2576;
2013, 1388,
2964,
effective July 1, 2017)
NRS 338.0118 Adoption by local government of policies providing for use of
certain recycled materials in public road and highway projects; use of such
materials; exception.
1. The governing body of a local
government that undertakes a project pursuant to this chapter for the
construction, reconstruction, improvement, maintenance or repair of a public
road or public highway shall adopt policies that provide for the use of
recycled aggregate, recycled bituminous pavement and recycled rubber from tires
in the project.
2. A local government or its authorized
representative which awards a contract for a public work which includes the
construction, reconstruction, improvement, maintenance or repair of a public
road or public highway shall ensure that the use of any recycled aggregate,
recycled bituminous pavement or recycled rubber from tires, or any combination
thereof, in the construction, reconstruction, improvement, maintenance or
repair of the public road or public highway is not restricted unless scientific
evidence satisfactory to the local government clearly indicates that the use of
the recycled aggregate, recycled bituminous pavement or recycled rubber from
tires for that construction, reconstruction, improvement, maintenance or repair
compromises the soundness of the project.
(Added to NRS by 2011, 1602)
NRS 338.012 Regulations of Labor Commissioner. The
Labor Commissioner may adopt such regulations as are necessary to enable the
Labor Commissioner to carry out his or her duties pursuant to the provisions of
this chapter.
(Added to NRS by 1983, 1361)
EMPLOYMENT
General Provisions
NRS 338.013 Inclusion of identifying number from Labor Commissioner in
advertisement or solicitation; reports by public bodies and contractors to
Labor Commissioner.
1. A public body that undertakes a public
work shall request from the Labor Commissioner, and include in any
advertisement or other type of solicitation, an identifying number with a
designation of the work. That number must be included in any bid or other
document submitted in response to the advertisement or other type of
solicitation.
2. Each public body which awards a
contract for any public work shall report its award to the Labor Commissioner
within 10 days after the award, giving the name and address of the contractor
to whom the public body awarded the contract and the identifying number for the
public work.
3. Each contractor engaged on a public
work shall report to the Labor Commissioner and the public body that awarded
the contract the name and address of each subcontractor whom the contractor
engages for work on the project within 10 days after the subcontractor
commences work on the contract and the identifying number for the public work.
4. The public body which awarded the
contract shall report the completion of all work performed under the contract
to the Labor Commissioner before the final payment of money due the contractor
by the public body.
(Added to NRS by 1977, 789; A 1985, 2039; 1997, 3081; 2003, 2414; 2009, 2069)
NRS 338.015 Enforcement by Labor Commissioner and Attorney General.
1. The Labor Commissioner shall enforce
the provisions of NRS 338.010 to 338.130, inclusive.
2. In addition to any other remedy or
penalty provided in this chapter, if any person, including, without limitation,
a public body, violates any provision of NRS 338.010
to 338.130, inclusive, or any regulation adopted
pursuant thereto, the Labor Commissioner may, after providing the person with
notice and an opportunity for a hearing, impose against the person an
administrative penalty of not more than $5,000 for each such violation.
3. The Labor Commissioner may, by
regulation, establish a sliding scale based on the severity of the violation to
determine the amount of the administrative penalty to be imposed against the
person pursuant to this section.
4. The Labor Commissioner shall report the
violation to the Attorney General, and the Attorney General may prosecute the
person in accordance with law.
(Added to NRS by 1973, 874; A 1993, 2248; 2001, 1146; 2003, 798; 2005, 202)
NRS 338.016 Civil action to recover damages resulting from commission of
offense.
1. If, after an opportunity for a hearing,
an administrative penalty is imposed against a contractor on a public work for
the commission of an offense:
(a) An eligible bidder, or any person who entered
into a contract with the eligible bidder before bids for the contract for the
public work were let, may commence a civil action against the contractor to
recover damages suffered as a proximate result of the eligible bidder not being
awarded the contract for the public work.
(b) There is a rebuttable presumption that the
contractor was awarded the contract for the public work because the
contractor’s bid on the contract was based, in part, on his or her intent to
commit the offense and, as a result, was lower than it otherwise would have
been.
2. The court may award costs and
reasonable attorney’s fees to the prevailing party in any action brought
pursuant to this section.
(Added to NRS by 1993, 2247; A 2003, 799)
NRS 338.017 Temporary disqualification of contractor after imposition of
administrative penalty; notification of State Contractors’ Board. If any administrative penalty is imposed
against a person for the commission of an offense:
1. That person, and the corporate
officers, if any, of that person, may not be awarded a contract for a public
work:
(a) For the first offense, for a period of 3
years after the date of the imposition of the administrative penalty; and
(b) For the second or subsequent offense, for a
period of 5 years after the date of the imposition of the administrative
penalty.
2. The Labor Commissioner shall notify the
State Contractors’ Board of each contractor who is prohibited from being
awarded a contract for a public work pursuant to this section.
(Added to NRS by 1993, 2247; A 2001, 1146; 2003, 2145)
NRS 338.018 Applicability to certain contracts for construction work of
Nevada System of Higher Education. [Effective through June 30, 2017.] The provisions of NRS
338.013 to 338.018, inclusive, apply to any
contract for construction work of the Nevada System of Higher Education for
which the estimated cost exceeds $100,000 even if the construction work does
not qualify as a public work, as defined in subsection 17 of NRS 338.010.
(Added to NRS by 2005, 2890; A 2013, 2966)
NRS 338.018 Applicability to certain
contracts for construction work of Nevada System of Higher Education.
[Effective July 1, 2017.] The
provisions of NRS 338.013 to 338.018,
inclusive, apply to any contract for construction work of the Nevada System of
Higher Education for which the estimated cost exceeds $100,000 even if the
construction work does not qualify as a public work, as defined in subsection
16 of NRS 338.010.
(Added to NRS by 2005, 2890; A 2013, 2966,
effective July 1, 2017)
Wages
NRS 338.020 Hourly and daily rate of wages must not be less than prevailing
wage in county; rate must be included in contract and posted on-site; payment
of overtime; wages paid in accordance with jurisdictional classes recognized in
locality.
1. Every contract to which a public body
of this State is a party, requiring the employment of skilled mechanics,
skilled workers, semiskilled mechanics, semiskilled workers or unskilled labor
in the performance of public work, must contain in express terms the hourly and
daily rate of wages to be paid each of the classes of mechanics and workers.
The hourly and daily rate of wages must:
(a) Not be less than the rate of such wages then
prevailing in the county in which the public work is located, which prevailing
rate of wages must have been determined in the manner provided in NRS 338.030; and
(b) Be posted on the site of the public work in a
place generally visible to the workers.
2. When public work is performed by day
labor, the prevailing wage for each class of mechanics and workers so employed
applies and must be stated clearly to such mechanics and workers when employed.
3. Except as otherwise provided in
subsection 4, a contractor or subcontractor shall pay to a mechanic or worker
employed by the contractor or subcontractor on the public work not less than
one and one-half times the prevailing rate of wages applicable to the class of
the mechanic or worker for each hour the mechanic or worker works on the public
work in excess of:
(a) Forty hours in any scheduled week of work by
the mechanic or worker for the contractor or subcontractor, including, without
limitation, hours worked for the contractor or subcontractor on work other than
the public work; or
(b) Eight hours in any workday that the mechanic
or worker was employed by the contractor or subcontractor, including, without
limitation, hours worked for the contractor or subcontractor on work other than
the public work, unless by mutual agreement the mechanic or worker works a
scheduled 10 hours per day for 4 calendar days within any scheduled week of
work.
4. The provisions of subsection 3 do not
apply to a mechanic or worker who is covered by a collective bargaining
agreement that provides for the payment of wages at not less than one and
one-half times the rate of wages set forth in the collective bargaining agreement
for work in excess of:
(a) Forty hours in any scheduled week of work; or
(b) Eight hours in any workday unless the
collective bargaining agreement provides that the mechanic or worker shall work
a scheduled 10 hours per day for 4 calendar days within any scheduled week of
work.
5. The prevailing wage and any wages paid
for overtime pursuant to subsection 3 or 4 to each class of mechanics or
workers must be in accordance with the jurisdictional classes recognized in the
locality where the work is performed.
6. Nothing in this section prevents an
employer who is signatory to a collective bargaining agreement from assigning
such work in accordance with established practice.
[1:139:1937; A 1941, 389; 1931 NCL § 6179.51]—(NRS A
1969, 736; 1973, 874; 1983, 131; 1985, 2040; 2003, 1741; 2005, 812)
NRS 338.030 Procedure for determination of prevailing wage in county.
1. The public body awarding any contract
for public work, or otherwise undertaking any public work, shall ascertain from
the Labor Commissioner the prevailing wage in the county in which the public
work is to be performed for each craft or type of work.
2. To establish a prevailing wage in each
county, including Carson City, the Labor Commissioner shall, annually, survey
contractors who have performed work in the county. Within 30 days after the
determination is issued:
(a) A public body or person entitled under
subsection 5 to be heard may submit an objection to the Labor Commissioner with
evidence to substantiate that a different wage prevails; and
(b) Any person may submit information to the
Labor Commissioner that would support a change in the prevailing wage of a
craft or type of work by 50 cents or more per hour in any county.
3. The Labor Commissioner shall hold a
hearing in the locality in which the work is to be executed if the Labor
Commissioner:
(a) Is in doubt as to the prevailing wage; or
(b) Receives an objection or information pursuant
to subsection 2.
Ê The Labor
Commissioner may hold only one hearing a year on the prevailing wage of any
craft or type of work in any county.
4. Notice of the hearing must be
advertised in a newspaper nearest to the locality of the work once a week for 2
weeks before the time of the hearing.
5. At the hearing, any public body, the
crafts affiliated with the State Federation of Labor or other recognized
national labor organizations, and the contractors of the locality or their
representatives must be heard. From the evidence presented, the Labor
Commissioner shall determine the prevailing wage.
6. The wages so determined must be filed
by the Labor Commissioner and must be available to any public body which awards
a contract for any public work.
7. Nothing contained in NRS 338.020 to 338.090,
inclusive, may be construed to authorize the fixing of any wage below any rate
which may now or hereafter be established as a minimum wage for any person
employed upon any public work, or employed by any officer or agent of any
public body.
[2:139:1937; 1931 NCL § 6179.52]—(NRS A 1985, 2040; 2001, 1147; 2003, 2414)
NRS 338.035 Discharge of part of obligation of contractor or subcontractor
engaged on public work to pay wages by making certain contributions in name of
worker. The obligation of a
contractor engaged on a public work or a subcontractor engaged on a public work
to pay wages in accordance with the determination of the Labor Commissioner may
be discharged in part by making contributions to a third person pursuant to a
fund, plan or program in the name of the worker.
(Added to NRS by 1983, 1574; A 2003, 2415; 2005, 813)
NRS 338.040 Workers deemed to be employed on public works.
1. Except as otherwise provided by
specific statute, workers who are:
(a) Employed at the site of a public work; and
(b) Necessary in the execution of the contract
for the public work,
Ê are deemed
to be employed on public works.
2. The Labor Commissioner shall adopt
regulations to define the circumstances under which a worker is:
(a) Employed at the site of a public work; and
(b) Necessary in the execution of the contract
for the public work.
[3:139:1937; A 1941, 389; 1931 NCL § 6179.53]—(NRS A 2001, 1147)
NRS 338.050 Contractual relationships: Applicability of NRS
338.010 to 338.090, inclusive. For the purpose of NRS
338.010 to 338.090, inclusive, except as
otherwise provided by specific statute, every worker who performs work for a
public work covered by a contract therefor is subject to all of the provisions
of NRS 338.010 to 338.090,
inclusive, regardless of any contractual relationship alleged to exist between
such worker and his or her employer.
[4:139:1937; A 1941, 389; 1931 NCL § 6179.54]—(NRS A 2001, 1148; 2005, 2891; 2013, 1026)
NRS 338.060 Forfeitures when workers paid less than designated rates or
willfully reported in inaccurate or incomplete manner or not reported to public
body; forfeiture clause in contracts; regulation establishing sliding scale for
penalties; recovery of investigative costs and attorney’s fees; waiver or
reduction of penalty.
1. Except as otherwise provided in
subsection 8, a contractor engaged on a public work shall forfeit, as a penalty
to the public body on behalf of which the contract has been made and awarded to
the contractor, not less than $20 nor more than $50 for each calendar day or
portion thereof that each worker employed on the public work is paid less than
the designated rate for any work done under the contract, by the contractor or
any subcontractor engaged on the public work.
2. Except as otherwise provided in
subsection 8, a contractor engaged on a public work shall forfeit, as a penalty
to the public body on behalf of which the contract has been made and awarded to
the contractor, not less than $20 nor more than $50 for each calendar day or
portion thereof for each worker employed on the public work for which the
contractor or subcontractor willfully included inaccurate or incomplete
information in the monthly record required to be submitted to the public body
pursuant to subsection 6 of NRS 338.070.
3. Except as otherwise provided in
subsection 8, a contractor engaged on a public work shall forfeit, as a penalty
to the public body on behalf of which the contract has been made and awarded to
the contractor, not less than $20 nor more than $50 for each calendar day or
portion thereof that each worker employed on the public work is not reported to
the public body awarding the contract by the contractor or any subcontractor
engaged on the public work as required pursuant to subsection 6 of NRS 338.070, up to a maximum of:
(a) For the first failure to comply during the
term of the contract for the public work, $1,000; and
(b) For each subsequent failure to comply during
the term of the contract for the public work, $5,000.
4. Except as otherwise provided in
subsection 8, if a violation of more than one provision of subsections 1, 2 and
3 involves the same worker, the contractor shall forfeit the penalty set forth
in each subsection that was violated.
5. A public body awarding a contract for a
public work shall cause a stipulation setting forth the penalties specified in
subsections 1 to 4, inclusive, to be inserted in the contract.
6. The Labor Commissioner shall, by
regulation, establish a sliding scale based on the size of the business of a
contractor engaged on a public work to determine the amount of the penalty to
be imposed pursuant to subsections 1 and 2.
7. If a penalty is imposed pursuant to
this section, the costs of the proceeding, including investigative costs and
attorney’s fees, may be recovered by the Labor Commissioner and the public
body.
8. The Labor Commissioner may, for good
cause shown, waive or reduce any penalty imposed pursuant to this section.
[6:139:1937; A 1941, 389; 1931 NCL § 6179.56]—(NRS A 1993, 896; 1997, 3355; 2001, 1148; 2003, 1862, 2415; 2013, 753)
NRS 338.070 Investigations of violations by public bodies; withholding of
certain sums by public bodies and contractors; maintenance and inspection of
records regarding employees; penalty for noncompliance.
1. Any public body awarding a contract
shall:
(a) Investigate possible violations of the
provisions of NRS 338.010 to 338.090,
inclusive, committed in the course of the execution of the contract, and
determine whether a violation has been committed and inform the Labor
Commissioner of any such violations; and
(b) When making payments to the contractor
engaged on the public work of money becoming due under the contract, withhold
and retain all sums forfeited pursuant to the provisions of NRS 338.010 to 338.090,
inclusive.
2. No sum may be withheld, retained or
forfeited, except from the final payment, without a full investigation being
made by the awarding public body.
3. Except as otherwise provided in
subsection 7, it is lawful for any contractor engaged on a public work to
withhold from any subcontractor engaged on the public work sufficient sums to
cover any penalties withheld from the contractor by the awarding public body on
account of the failure of the subcontractor to comply with the terms of NRS 338.010 to 338.090,
inclusive. If payment has already been made to the subcontractor, the
contractor may recover from the subcontractor the amount of the penalty or
forfeiture in a suit at law.
4. A contractor engaged on a public work
and each subcontractor engaged on the public work shall:
(a) Inquire of each worker employed by the
contractor or subcontractor in connection with the public work:
(1) Whether the worker wishes to specify
voluntarily his or her gender; and
(2) Whether the worker wishes to specify
voluntarily his or her ethnicity; and
(b) For each response the contractor or
subcontractor receives pursuant to paragraph (a):
(1) If the worker chose voluntarily to
specify his or her gender or ethnicity, or both, record the worker’s responses;
and
(2) If the worker declined to specify his
or her gender or ethnicity, or both, record that the worker declined to specify
such information.
Ê A contractor
or subcontractor shall not compel or coerce a worker to specify his or her
gender or ethnicity and shall not penalize or otherwise take any adverse action
against a worker who declines to specify his or her gender or ethnicity. Before
inquiring as to whether a worker wishes to specify voluntarily his or her
gender or ethnicity, the applicable contractor or subcontractor must inform the
worker that such information, if provided, will be open to public inspection as
set forth in subsection 6.
5. A contractor engaged on a public work
and each subcontractor engaged on the public work shall keep or cause to be
kept:
(a) An accurate record showing, for each worker
employed by the contractor or subcontractor in connection with the public work:
(1) The name of the worker;
(2) The occupation of the worker;
(3) The gender of the worker, if the
worker voluntarily agreed to specify that information pursuant to subsection 4,
or an entry indicating that the worker declined to specify such information;
(4) The ethnicity of the worker, if the
worker voluntarily agreed to specify that information pursuant to subsection 4,
or an entry indicating that the worker declined to specify such information;
(5) If the worker has a driver’s license
or identification card, an indication of the state or other jurisdiction that
issued the license or card; and
(6) The actual per diem, wages and
benefits paid to the worker; and
(b) An additional accurate record showing, for
each worker employed by the contractor or subcontractor in connection with the
public work who has a driver’s license or identification card:
(1) The name of the worker;
(2) The driver’s license number or
identification card number of the worker; and
(3) The state or other jurisdiction that
issued the license or card.
6. The records maintained pursuant to
subsection 5 must be open at all reasonable hours to the inspection of the
public body awarding the contract. The contractor engaged on the public work or
subcontractor engaged on the public work shall ensure that a copy of each
record for each calendar month is received by the public body awarding the
contract no later than 15 days after the end of the month. The copy of the
record maintained pursuant to paragraph (a) of subsection 5 must be open to
public inspection as provided in NRS
239.010. The copy of the record maintained pursuant to paragraph (b) of
subsection 5 is confidential and not open to public inspection. The records in
the possession of the public body awarding the contract may be discarded by the
public body 2 years after final payment is made by the public body for the
public work.
7. A contractor engaged on a public work
shall not withhold from a subcontractor engaged on the public work the sums
necessary to cover any penalties provided pursuant to subsection 3 of NRS 338.060 that may be withheld from the contractor
by the public body awarding the contract because the public body did not
receive a copy of the record maintained by the subcontractor pursuant to
subsection 5 for a calendar month by the time specified in subsection 6 if:
(a) The subcontractor provided to the contractor,
for submission to the public body by the contractor, a copy of the record not
later than the later of:
(1) Ten days after the end of the month;
or
(2) A date agreed upon by the contractor
and subcontractor; and
(b) The contractor failed to submit the copy of
the record to the public body by the time specified in subsection 6.
Ê Nothing in
this subsection prohibits a subcontractor from submitting a copy of a record
for a calendar month directly to the public body by the time specified in
subsection 6.
8. Any contractor or subcontractor, or
agent or representative thereof, performing work for a public work who neglects
to comply with the provisions of this section is guilty of a misdemeanor.
[7:139:1937; 1931 NCL § 6179.57]—(NRS A 1977, 789; 1985, 274; 1987, 1045; 1989, 464; 2001, 1148; 2003, 1863, 2416; 2011, 41; 2013, 754)
NRS 338.072 Requirement for subcontractor to hold state business license. A subcontractor who enters into a subcontract
for a public work shall not accept or otherwise receive any public money for
the public work, including, without limitation, accepting or receiving any
public money as a payment from a contractor, unless the subcontractor is the
holder of a state business license issued pursuant to chapter 76 of NRS.
(Added to NRS by 2013, 1026)
NRS 338.075 Applicability to certain contracts for construction work of
Nevada System of Higher Education. [Effective through June 30, 2017.] The provisions of NRS
338.020 to 338.090, inclusive, apply to any
contract for construction work of the Nevada System of Higher Education for
which the estimated cost exceeds $100,000 even if the construction work does
not qualify as a public work, as defined in subsection 17 of NRS 338.010.
(Added to NRS by 2005, 2890; A 2013, 2966)
NRS 338.075 Applicability to certain
contracts for construction work of Nevada System of Higher Education.
[Effective July 1, 2017.] The
provisions of NRS 338.020 to 338.090,
inclusive, apply to any contract for construction work of the Nevada System of
Higher Education for which the estimated cost exceeds $100,000 even if the
construction work does not qualify as a public work, as defined in subsection
16 of NRS 338.010.
(Added to NRS by 2005, 2890; A 2013, 2966,
2967,
effective July 1, 2017)
NRS 338.080 Exemptions. None of
the provisions of NRS 338.020 to 338.090, inclusive, apply to:
1. Any work, construction, alteration,
repair or other employment performed, undertaken or carried out, by or for any
railroad company or any person operating the same, whether such work,
construction, alteration or repair is incident to or in conjunction with a
contract to which a public body is a party, or otherwise.
2. Apprentices recorded under the
provisions of chapter 610 of NRS.
3. Any contract for a public work whose
cost is less than $100,000. A unit of the project must not be separated from
the total project, even if that unit is to be completed at a later time, in
order to lower the cost of the project below $100,000.
[9:139:1937; 1931 NCL § 6179.59] + [8:169:1941; 1931
NCL § 6179.62]—(NRS A 1967, 34; 1985, 2041; 2003, 2416; 2013, 1026)
NRS 338.090 Penalties.
1. Except as otherwise provided in
subsection 4, any person, including the officers, agents or employees of a
public body, who violates any provision of NRS 338.010
to 338.090, inclusive, or any regulation adopted
pursuant thereto, is guilty of a misdemeanor.
2. The Labor Commissioner, in addition to
any other remedy or penalty provided in this chapter:
(a) Shall assess a person who, after an
opportunity for a hearing, is found to have failed to pay the prevailing wage
required pursuant to NRS 338.020 to 338.090, inclusive, an amount equal to the difference
between the prevailing wages required to be paid and the wages that the contractor
or subcontractor actually paid; and
(b) May, in addition to any other administrative
penalty, impose an administrative penalty not to exceed the costs incurred by
the Labor Commissioner to investigate and prosecute the matter.
3. If the Labor Commissioner finds that a
person has failed to pay the prevailing wage required pursuant to NRS 338.020 to 338.090,
inclusive, the public body may, in addition to any other remedy or penalty
provided in this chapter, require the person to pay the actual costs incurred
by the public body to investigate the matter.
4. The provisions of subsection 1 do not
apply to a subcontractor specified in NRS 338.072.
[7 1/2:139:1937; A 1941, 389; 1931 NCL § 6179.57
1/2]—(NRS A 1967, 553; 1985, 2041; 1993, 2248; 2001, 1149; 2003, 799, 2417; 2013, 1027)
Employment Practices
NRS 338.125 Fair employment practices: Contents of contracts concerning
public works; breach of contract.
1. It is unlawful for any contractor in
connection with the performance of work under a contract with a public body,
when payment of the contract price, or any part of such payment, is to be made
from public money, to refuse to employ or to discharge from employment any
person because of his or her race, color, creed, national origin, sex, sexual
orientation, gender identity or expression, or age, or to discriminate against
a person with respect to hire, tenure, advancement, compensation or other
terms, conditions or privileges of employment because of his or her race,
creed, color, national origin, sex, sexual orientation, gender identity or
expression, or age.
2. Contracts between contractors and
public bodies must contain the following contractual provisions:
In connection with the
performance of work under this contract, the contractor agrees not to
discriminate against any employee or applicant for employment because of race,
creed, color, national origin, sex, sexual orientation, gender identity or
expression, or age, including, without limitation, with regard to employment,
upgrading, demotion or transfer, recruitment or recruitment advertising, layoff
or termination, rates of pay or other forms of compensation, and selection for
training, including, without limitation, apprenticeship.
The contractor further agrees
to insert this provision in all subcontracts hereunder, except subcontracts for
standard commercial supplies or raw materials.
3. Any violation of such provision by a
contractor constitutes a material breach of contract.
4. As used in this section:
(a) “Gender identity or expression” means a
gender-related identity, appearance, expression or behavior of a person,
regardless of the person’s assigned sex at birth.
(b) “Sexual orientation” means having or being
perceived as having an orientation for heterosexuality, homosexuality or
bisexuality.
(Added to NRS by 1959, 137; A 1973, 981; 1999, 1942; 2003, 2417; 2011, 501)
NRS 338.130 Preferential employment in construction of public works.
1. In all cases where persons are employed
in the construction of public works, preference must be given, the
qualifications of the applicants being equal:
(a) First: To persons who:
(1) Have been honorably discharged from
the Army, Navy, Air Force, Marine Corps or Coast Guard of the United States, a
reserve component thereof or the National Guard; and
(2) Are citizens of the State of Nevada.
(b) Second: To other citizens of the State of
Nevada.
2. Nothing in this section shall be
construed to prevent the working of prisoners by a public body on a public
work.
3. In each contract for the construction
of public works, a clause must be inserted to the effect that if the provisions
of this section are not complied with by the contractor engaged on the public
work, the contract is void, and any failure or refusal to comply with any of
the provisions of this section renders any such contract void. All boards,
commissions, officers, agents and employees having the power to enter into
contracts for the expenditure of public money on public works shall file in the
Office of the Labor Commissioner the names and addresses of all contractors
holding contracts with the public body, and upon the letting of new contracts,
the names and addresses of such new contractors must likewise be filed with the
Labor Commissioner. Upon the demand of the Labor Commissioner, a contractor
shall furnish a list of the names and addresses of all subcontractors employed
by the contractor engaged on a public work.
4. Subject to the exceptions contained in
this section, no money may be paid out of the State Treasury or out of the
treasury of any political subdivision of the State to any person employed on
any work mentioned in this section unless there has been compliance with the
provisions of this section.
5. Any contractor engaged on a public work
or any other person who violates any of the provisions of this section is
guilty of a misdemeanor. The penalties provided for in this section do not
apply where violations thereof are due to misrepresentations made by the
employee or employees.
[Part 1:168:1919; A 1921, 205; 1929, 89; NCL § 6173]
+ [2:168:1919; A 1921, 205; NCL § 6174] + [3:168:1919; 1919 RL p. 2965; NCL §
6175] + [Part 4:168:1919; A 1921, 205; NCL § 6176]—(NRS A 1967, 554; 1971, 209;
2003, 2418;
2005, 22)
NRS 338.135 Rental or lease of trucks or truck and trailer combinations by
contractors or subcontractors: Hourly rate for vehicle and services of driver. Where a truck or truck and trailer combination
is rented or leased after April 22, 1969, by a contractor or subcontractor on a
public work, the hourly rate for the rental or lease of such truck or truck and
trailer combination must, when added to the prevailing rate of wages required by
NRS 338.020 for the driver, not be less than the
hourly rate for similar vehicles with a driver as such hourly rate appears in
freight tariffs approved by the Nevada Transportation Authority for the area in
which the public work is located.
(Added to NRS by 1969, 900; A 1997, 1987)
GENERAL PROCEDURES FOR AWARDING CONTRACTS
Limitations on General Applicability of Provisions
NRS 338.1373 Option of local governments to comply with alternative
procedures; inapplicability of certain provisions to contracts awarded by
Department of Transportation. [Effective through June 30, 2017.]
1. A local government or its authorized
representative shall award a contract for a public work pursuant to the
provisions of NRS 338.1415 and:
(a) NRS 338.1377 to 338.139, inclusive;
(b) NRS 338.143 to 338.148, inclusive;
(c) NRS 338.1685 to 338.16995, inclusive; or
(d) NRS 338.1711 to 338.173, inclusive.
2. Except as otherwise provided in this
subsection, subsection 3 and chapter 408 of
NRS, the provisions of this chapter 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 408.201 and 408.313 to 408.433, inclusive. The provisions of NRS 338.1375 to 338.1382,
inclusive, 338.1386, 338.13862,
338.13864, 338.139, 338.142 and 338.1711 to 338.1727, inclusive, 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 408.201 and 408.313 to 408.433, inclusive.
3. To the extent that a provision of this
chapter precludes the granting of federal assistance or reduces the amount of
such assistance with respect to a contract for the construction,
reconstruction, improvement or maintenance of highways that is awarded by the
Department of Transportation pursuant to NRS
408.201 and 408.313 to 408.433, inclusive, that provision of this
chapter does not apply to the Department of Transportation or the contract.
(Added to NRS by 1999, 2390; A 2001, 640, 1930, 2262; 2003, 157, 1988, 2128, 2418, 2491; 2007, 2896; 2011, 43, 1602, 3684, 3685; 2013, 1027,
2967)
NRS 338.1373 Option of local
governments to comply with alternative procedures; inapplicability of certain
provisions to contracts awarded by Department of Transportation. [Effective
July 1, 2017.]
1. A local government or its authorized
representative shall award a contract for a public work pursuant to the
provisions of NRS 338.1415 and:
(a) NRS 338.1377 to 338.139, inclusive;
(b) NRS 338.143 to 338.148, inclusive; or
(c) NRS 338.1711 to 338.173, inclusive.
2. Except as otherwise provided in this
subsection, subsection 3 and chapter 408 of
NRS, the provisions of this chapter 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 408.201 and 408.313 to 408.433, inclusive. The provisions of NRS 338.1375 to 338.1382,
inclusive, 338.1386, 338.13862,
338.13864, 338.139, 338.142 and 338.1711 to 338.1727, inclusive, 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 408.201 and 408.313 to 408.433, inclusive.
3. To the extent that a provision of this
chapter precludes the granting of federal assistance or reduces the amount of
such assistance with respect to a contract for the construction,
reconstruction, improvement or maintenance of highways that is awarded by the
Department of Transportation pursuant to NRS
408.201 and 408.313 to 408.433, inclusive, that provision of this
chapter does not apply to the Department of Transportation or the contract.
(Added to NRS by 1999, 2390; A 2001, 640, 1930, 2262; 2003, 157, 1988, 2128, 2418, 2491; 2007, 2896; 2011, 43, 1602, 3684, 3685; 2013, 1027,
2967,
effective July 1, 2017)
Qualification of Bidders; Qualification of Subcontractors
on State Public Works
NRS 338.1375 State public works: Acceptance of bids from qualified bidders
only; adoption and use of criteria for qualification of bidders.
1. The Division shall not accept a bid on
a contract for a public work unless the contractor who submits the bid has
qualified pursuant to NRS 338.1379 to bid on that
contract.
2. The State Public Works Board shall by
regulation adopt criteria for the qualification of bidders on contracts for
public works of this State. The criteria adopted by the State Public Works
Board pursuant to this section must be used by the Division to determine the
qualification of bidders on contracts for public works of this State.
3. The criteria adopted by the State Public
Works Board pursuant to this section:
(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) Whether the applicant has breached any
contracts with a public body or person in this State or any other state;
(4) Whether the applicant has been
disqualified from being awarded a contract pursuant to NRS
338.017, 338.13845 or 338.13895;
(5) 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 public work;
(6) The performance history of the
applicant concerning other recent, similar contracts, if any, completed by the
applicant; and
(7) The truthfulness and completeness of
the application.
(Added to NRS by 1999, 2390; A 2001, 1930; 2003, 2128, 2419; 2009, 2551,
2669; 2011, 2962)
NRS 338.1376 State public works: Qualification of subcontractors;
disqualification; appeal.
1. Each subcontractor whose name is
required to be included in a bid pursuant to NRS
338.141 must, to be eligible to provide labor or a portion of the work or
improvement to a contractor to whom the Division awards a contract pursuant to
this chapter, be qualified in accordance with criteria established by
regulation by the State Public Works Board. The criteria established by the
State Public Works Board pursuant to this subsection must be made applicable to
a subcontractor but must otherwise be substantively identical to the criteria
set forth in paragraph (b) of subsection 3 of NRS
338.1375.
2. A subcontractor shall be presumed to be
qualified pursuant to subsection 1 unless the Division has received information
that:
(a) The Division determines to be sufficient and
verifiable; and
(b) Indicates the subcontractor does not meet the
criteria established by regulation pursuant to subsection 1.
3. Upon receipt of sufficient and
verifiable information of a type described in subsection 2, the Division shall
require a subcontractor regarding whom such information is received to submit
to the Division, on a form prescribed by the Division, an application for
qualification in accordance with the criteria established by regulation
pursuant to subsection 1. After receiving such an application, the Division
shall determine whether the subcontractor is qualified in accordance with the
criteria established by regulation pursuant to subsection 1. Except as
otherwise provided in subsection 4, if the Division determines that the
subcontractor does not meet such criteria, the Division may disqualify the
subcontractor, for a period set by the Division, from participating in public
works projects which are sponsored by the Division. The Division shall provide
written notice to the subcontractor of any such disqualification.
4. A subcontractor may appeal a
disqualification pursuant to subsection 3 in the manner set forth in NRS 338.1381.
(Added to NRS by 2003, 2127)
NRS 338.1377 Local government public works: Adoption of criteria for
qualification of bidders. Except
as otherwise provided in NRS 338.1382, if a
governing body that sponsors or finances a public work elects to award
contracts for public works pursuant to the provisions of NRS 338.1377 to 338.139,
inclusive, the governing body shall adopt the following criteria for
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:
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 an appropriate number of projects as determined by the local
government, but not to exceed five 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
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 338.13895;
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.
Ê 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.
(Added to NRS by 1999, 2390; A 2001, 170, 1931; 2003, 2419, 2491; 2005, 1795)
NRS 338.1378 Local government public works: Advertisement required before
acceptance of applications for qualification of bidders.
1. Before a local government accepts
applications pursuant to NRS 338.1379, the local
government 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 local government; 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 local government;
(3) The place at which applications may be
obtained; and
(4) Any other information that the local government
deems necessary.
(Added to NRS by 2003, 2488; A 2005, 1797)
NRS 338.1379 State and local government public works: Submission of
application to qualify as bidder; investigation of applicant; determination;
notice; period of qualification; use of criteria; confidentiality of certain
financial information concerning applicant; denial or revocation of
qualification in certain circumstances.
1. Except as otherwise provided in NRS 338.1382, a contractor who wishes to qualify as a
bidder on a contract for a public work must submit an application to the
Division or the local government.
2. Upon receipt of an application pursuant
to subsection 1, the Division or the local government shall:
(a) Investigate the applicant to determine
whether the applicant 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 45 days after receipt of the application.
3. The Division or the local government
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 the right to a hearing pursuant to NRS
338.1381.
4. The Division or the local government
may determine an applicant is qualified to bid:
(a) On a specific project; or
(b) On more than one project over a period of
time to be determined by the Division or the local government.
5. Except as otherwise provided in
subsection 8, the Division 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. Except as otherwise provided in
subsection 8, the 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. Except as otherwise provided in NRS 239.0115, financial information and
other data pertaining to the net worth of an applicant which is gathered by or
provided to the Division or a local government to determine the financial
ability of an applicant to perform a contract is confidential and not open to
public inspection.
8. The Division or the local government
shall deny an application and revoke any existing qualification to bid if it
finds that the applicant has, within the preceding year, materially breached a
contract for a public work for which the cost exceeds $25,000,000.
(Added to NRS by 1999, 2391; A 2001, 1931; 2003, 2421, 2493; 2005, 1797; 2007, 2089; 2011, 43; 2013, 1390)
NRS 338.1381 State and local government public works: Procedure upon appeal
of denial of application to qualify as bidder or disqualification of
subcontractor. [Effective through June 30, 2017.]
1. If, within 10 days after receipt of the
notice denying an application pursuant to NRS 338.1379
or 338.16991 or disqualifying a subcontractor
pursuant to NRS 338.1376, the applicant or
subcontractor, as applicable, files a written request for a hearing with the
Division or the local government, the State Public Works Board or governing
body shall set the matter for a hearing within 20 days after receipt of the
request. The hearing must be held not later than 45 days after the receipt of
the request for a hearing unless the parties, by written stipulation, agree to
extend the time.
2. The hearing must be held at a time and
place prescribed by the Board or local government. At least 10 days before the
date set for the hearing, the Board or local government shall serve the
applicant or subcontractor with written notice of the hearing. The notice may
be served by personal delivery to the applicant or subcontractor or by
certified mail to the last known business or residential address of the
applicant or subcontractor.
3. The applicant or subcontractor has the
burden at the hearing of proving by substantial evidence that the applicant is
entitled to be qualified to bid on a contract for a public work, or that the
subcontractor is qualified to be a subcontractor on a contract for a public
work.
4. In conducting a hearing pursuant to
this section, the Board or governing body may:
(a) Administer oaths;
(b) Take testimony;
(c) Issue subpoenas to compel the attendance of
witnesses to testify before the Board or governing body;
(d) Require the production of related books,
papers and documents; and
(e) Issue commissions to take testimony.
5. If a witness refuses to attend or
testify or produce books, papers or documents as required by the subpoena
issued pursuant to subsection 4, the Board or governing body may petition the
district court to order the witness to appear or testify or produce the
requested books, papers or documents.
6. The Board or governing body shall issue
a decision on the matter during the hearing. The decision of the Board or
governing body is a final decision for purposes of judicial review.
(Added to NRS by 1999, 2392; A 2003, 2128, 2421, 3515; 2005, 1798; 2011, 2962,
3685)
NRS 338.1381 State and local
government public works: Procedure upon appeal of denial of application to
qualify as bidder or disqualification of subcontractor. [Effective July 1,
2017.]
1. If, within 10 days after receipt of the
notice denying an application pursuant to NRS 338.1379
or disqualifying a subcontractor pursuant to NRS
338.1376, the applicant or subcontractor, as applicable, files a written
request for a hearing with the Division or the local government, the State
Public Works Board or governing body shall set the matter for a hearing within
20 days after receipt of the request. The hearing must be held not later than
45 days after the receipt of the request for a hearing unless the parties, by
written stipulation, agree to extend the time.
2. The hearing must be held at a time and
place prescribed by the Board or local government. At least 10 days before the
date set for the hearing, the Board or local government shall serve the
applicant or subcontractor with written notice of the hearing. The notice may
be served by personal delivery to the applicant or subcontractor or by
certified mail to the last known business or residential address of the
applicant or subcontractor.
3. The applicant or subcontractor has the
burden at the hearing of proving by substantial evidence that the applicant is
entitled to be qualified to bid on a contract for a public work, or that the
subcontractor is qualified to be a subcontractor on a contract for a public
work.
4. In conducting a hearing pursuant to
this section, the Board or governing body may:
(a) Administer oaths;
(b) Take testimony;
(c) Issue subpoenas to compel the attendance of
witnesses to testify before the Board or governing body;
(d) Require the production of related books,
papers and documents; and
(e) Issue commissions to take testimony.
5. If a witness refuses to attend or
testify or produce books, papers or documents as required by the subpoena
issued pursuant to subsection 4, the Board or governing body may petition the
district court to order the witness to appear or testify or produce the
requested books, papers or documents.
6. The Board or governing body shall issue
a decision on the matter during the hearing. The decision of the Board or
governing body is a final decision for purposes of judicial review.
(Added to NRS by 1999, 2392; A 2003, 2128, 2421, 3515; 2005, 1798; 2011, 2962,
3685; 2013, 2968,
effective July 1, 2017)
NRS 338.1382 Local government public works: Alternative procedure for
qualification of bidders. In lieu
of adopting criteria pursuant to NRS 338.1377 and
determining the qualification of bidders pursuant to NRS
338.1379, a governing body may deem a person to be qualified to bid on:
1. Contracts for public works of the local
government if the person has not, within the preceding year, materially
breached a contract for a public work for which the cost exceeds $25,000,000,
and has been determined by:
(a) The Division pursuant to NRS 338.1379 to be qualified to bid on contracts for
public works of the State pursuant to criteria adopted pursuant to NRS 338.1375; or
(b) Another governing body 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.
(Added to NRS by 2003, 2488; A 2011, 44; 2013, 1391)
Preference for Bids on Smaller Contracts Submitted by
Local Businesses Owned by Veterans With Service-Connected Disabilities
NRS 338.1384 Definitions. As
used in NRS 338.1384 to 338.13847,
inclusive, unless the context otherwise requires, the words and terms defined
in NRS 338.13841, 338.13842
and 338.13843 have the meanings ascribed to them
in those sections.
(Added to NRS by 2009, 2668)
NRS 338.13841 “Business owned by a veteran with a service-connected
disability” defined. “Business
owned by a veteran with a service-connected disability” means a business:
1. Of which at least 51 percent of the
ownership interest is held by one or more veterans with service-connected
disabilities;
2. That is organized to engage in
commercial transactions; and
3. That is managed and operated on a
day-to-day basis by one or more veterans with service-connected disabilities.
Ê The term
includes a business which meets the above requirements that is transferred to
the spouse of a veteran with a service-connected disability upon the death of
the veteran, as determined by the United States Department of Veterans Affairs.
(Added to NRS by 2009, 2668)
NRS 338.13842 “Local business” defined. “Local
business” has the meaning ascribed to it in NRS
333.3363.
(Added to NRS by 2009, 2668)
NRS 338.13843 “Veteran with a service-connected disability” defined. “Veteran with a service-connected disability”
means a veteran of the Armed Forces of the United States who has a
service-connected disability of at least zero percent as determined by the
United States Department of Veterans Affairs.
(Added to NRS by 2009, 2668)
NRS 338.13844 Amount of preference.
1. For the purpose of awarding a contract
for a public work of this State for which the estimated cost is $100,000 or
less, as governed by NRS 338.13862, if a local
business owned by a veteran with a service-connected disability submits a bid,
the bid shall be deemed to be 5 percent lower than the bid actually submitted.
2. The preference described in subsection
1 may not be combined with any other preference.
(Added to NRS by 2009, 2668)
NRS 338.13845 Fraudulent acts.
1. If the Division determines that a
business has made a material misrepresentation or otherwise committed a
fraudulent act in applying for the preference described in NRS 338.13844, the business is thereafter
permanently prohibited from:
(a) Applying for or receiving the preference
described in NRS 338.13844; and
(b) Bidding on a contract for a public work of
this State.
2. If the Division determines, as
described in subsection 1, that a business has made a material
misrepresentation or otherwise committed a fraudulent act in applying for the
preference described in NRS 338.13844, the
business may apply to the Administrator to review the decision pursuant to chapter 233B of NRS.
3. As used in this section,
“Administrator” has the meaning ascribed to it in NRS 341.011.
(Added to NRS by 2009, 2668;
A 2011,
2963)
NRS 338.13846 Duty of State Public Works Division to report to Legislature. The Division shall report every 6 months to
the Legislature, if it is in session, or to the Interim Finance Committee, if
the Legislature is not in session. The report must contain, for the period
since the last report:
1. The number of contracts for public
works of this State that were subject to the provisions of NRS 338.1384 to 338.13847,
inclusive.
2. The total dollar amount of contracts
for public works of this State that were subject to the provisions of NRS 338.1384 to 338.13847,
inclusive.
3. The number of local businesses owned by
veterans with service-connected disabilities that submitted a bid or proposal
on a contract for a public work of this State.
4. The number of contracts for public
works of this State that were awarded to local businesses owned by veterans
with service-connected disabilities.
5. The total number of dollars’ worth of
contracts for public works of this State that were awarded to local businesses
owned by veterans with service-connected disabilities.
6. Any other information deemed relevant
by the Director of the Legislative Counsel Bureau.
(Added to NRS by 2009, 2669)
NRS 338.13847 Regulations. The
State Public Works Board may adopt such regulations as it determines to be
necessary or advisable to carry out the provisions of NRS
338.1384 to 338.13847, inclusive. The
regulations may include, without limitation, provisions setting forth:
1. The method by which a business may
apply to receive the preference described in NRS
338.13844;
2. The documentation or other proof that a
business must submit to demonstrate that it qualifies for the preference
described in NRS 338.13844; and
3. Such other matters as the Division
deems relevant.
Ê In carrying
out the provisions of this section, the State Public Works Board and the
Division shall, to the extent practicable, cooperate and coordinate with the
Purchasing Division of the Department of Administration so that any regulations
adopted pursuant to this section and NRS
333.3369 are reasonably consistent.
(Added to NRS by 2009, 2669;
A 2011,
2963)
Advertising; Acceptance of Bids; Award of Contract
NRS 338.1385 Advertising for bids and compliance with certain provisions
required for commencement of certain public works; quarterly reports of awarded
contracts by authorized representatives; availability of plans and
specifications for public inspection; award of contract to lowest responsive
and responsible bidder; rejection of bids; authority to award contract without
competitive bidding if no bids received in response to advertisement for bids
in certain circumstances; requirements before public body may commence public
work itself; exemptions. [Effective through June 30, 2017.]
1. Except as otherwise provided in
subsection 9, this State, or a governing body or its authorized representative
that awards a contract for a public work in accordance with paragraph (a) of
subsection 1 of NRS 338.1373 shall not:
(a) Commence a public work for which the
estimated cost exceeds $100,000 unless it advertises in a newspaper qualified
pursuant to chapter 238 of NRS that is
published in the county where the public work will be performed for bids for
the public work. If no qualified newspaper is published in the county where the
public work will be performed, the required advertisement must be published in
some qualified newspaper that is printed in the State of Nevada and having a
general circulation within the county.
(b) Commence a public work for which the
estimated cost is $100,000 or less unless it complies with the provisions of NRS 338.1386, 338.13862
and 338.13864 and, with respect to the State, NRS 338.1384 to 338.13847,
inclusive.
(c) Divide a public work into separate portions
to avoid the requirements of paragraph (a) or (b).
2. At least once each quarter, the
authorized representative of a public body shall report to the public body any
contract that the authorized representative awarded pursuant to subsection 1 in
the immediately preceding quarter.
3. Each advertisement for bids must
include a provision that sets forth the requirement that a contractor must be
qualified pursuant to NRS 338.1379 or 338.1382 to bid on the contract.
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 public work must be awarded on the basis of bids
received.
5. Except as otherwise provided in
subsection 6 and NRS 338.1389, a public body or
its authorized representative shall award a contract to the lowest responsive
and responsible bidder.
6. Any bids received in response to an
advertisement for bids may be rejected if the public body or its authorized
representative responsible for awarding the contract determines that:
(a) The bidder is not a qualified bidder pursuant
to NRS 338.1379 or 338.1382;
(b) The bidder is not responsive or responsible;
(c) The quality of the services, materials,
equipment or labor offered does not conform to the approved plans or
specifications; or
(d) The public interest would be served by such a
rejection.
7. A public body may let a contract
without competitive bidding if no bids were received in response to an
advertisement for bids and:
(a) The public body publishes a notice stating
that no bids were received and that the contract may be let without further
bidding;
(b) The public body considers any bid submitted
in response to the notice published pursuant to paragraph (a);
(c) The public body lets the contract not less
than 7 days after publishing a notice pursuant to paragraph (a); and
(d) The contract is awarded to the lowest
responsive and responsible bidder.
8. Before a public body may commence the
performance of a public work itself pursuant 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, the
public body shall prepare and make available for public inspection a written
statement containing:
(a) A list of all persons, including supervisors,
whom the public body intends to assign to the public work, together with their
classifications and an estimate of the direct and indirect costs of their
labor;
(b) A list of all equipment that the public body
intends to use on the public work, 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 public work;
(d) An estimate of the total cost of the public
work, including, the fair market value of or, if known, the actual cost of all
materials, supplies, labor and equipment to be used for the public work; and
(e) An estimate of the amount of money the public
body expects to save by rejecting the bids and performing the public work
itself.
9. 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;
(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;
(f) A constructability review of a public work,
which review a local government or its authorized representative is required to
perform pursuant to NRS 338.1435; or
(g) The preconstruction or construction of a
public work for which a public body enters into a contract with a construction
manager at risk pursuant to NRS 338.1685 to 338.16995, inclusive.
(Added to NRS by 1999, 2392; A 1999, 3491, 3497; 2001, 252, 2006, 2022; 2003, 119, 1989, 1990, 2422, 2423, 2494, 2495; 2005, 1798, 1799; 2007, 2896, 2898; 2009, 434, 2670, 2672; 2011, 3686)
NRS 338.1385 Advertising for bids and
compliance with certain provisions required for commencement of certain public
works; quarterly reports of awarded contracts by authorized representatives;
availability of plans and specifications for public inspection; award of
contract to lowest responsive and responsible bidder; rejection of bids;
authority to award contract without competitive bidding if no bids received in
response to advertisement for bids in certain circumstances; requirements
before public body may commence public work itself; exemptions. [Effective July
1, 2017.]
1. Except as otherwise provided in
subsection 9, this State, or a governing body or its authorized representative
that awards a contract for a public work in accordance with paragraph (a) of
subsection 1 of NRS 338.1373 shall not:
(a) Commence a public work for which the
estimated cost exceeds $100,000 unless it advertises in a newspaper qualified
pursuant to chapter 238 of NRS that is
published in the county where the public work will be performed for bids for
the public work. If no qualified newspaper is published in the county where the
public work will be performed, the required advertisement must be published in
some qualified newspaper that is printed in the State of Nevada and having a
general circulation within the county.
(b) Commence a public work for which the
estimated cost is $100,000 or less unless it complies with the provisions of NRS 338.1386, 338.13862
and 338.13864 and, with respect to the State, NRS 338.1384 to 338.13847,
inclusive.
(c) Divide a public work into separate portions
to avoid the requirements of paragraph (a) or (b).
2. At least once each quarter, the
authorized representative of a public body shall report to the public body any
contract that the authorized representative awarded pursuant to subsection 1 in
the immediately preceding quarter.
3. Each advertisement for bids must
include a provision that sets forth the requirement that a contractor must be
qualified pursuant to NRS 338.1379 or 338.1382 to bid on the contract.
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 public work must be awarded on the basis of bids
received.
5. Except as otherwise provided in
subsection 6 and NRS 338.1389, a public body or
its authorized representative shall award a contract to the lowest responsive
and responsible bidder.
6. Any bids received in response to an
advertisement for bids may be rejected if the public body or its authorized
representative responsible for awarding the contract determines that:
(a) The bidder is not a qualified bidder pursuant
to NRS 338.1379 or 338.1382;
(b) The bidder is not responsive or responsible;
(c) The quality of the services, materials,
equipment or labor offered does not conform to the approved plans or
specifications; or
(d) The public interest would be served by such a
rejection.
7. A public body may let a contract
without competitive bidding if no bids were received in response to an
advertisement for bids and:
(a) The public body publishes a notice stating
that no bids were received and that the contract may be let without further
bidding;
(b) The public body considers any bid submitted
in response to the notice published pursuant to paragraph (a);
(c) The public body lets the contract not less
than 7 days after publishing a notice pursuant to paragraph (a); and
(d) The contract is awarded to the lowest
responsive and responsible bidder.
8. Before a public body may commence the
performance of a public work itself pursuant 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, the
public body shall prepare and make available for public inspection a written
statement containing:
(a) A list of all persons, including supervisors,
whom the public body intends to assign to the public work, together with their
classifications and an estimate of the direct and indirect costs of their
labor;
(b) A list of all equipment that the public body
intends to use on the public work, 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 public work;
(d) An estimate of the total cost of the public
work, including, the fair market value of or, if known, the actual cost of all
materials, supplies, labor and equipment to be used for the public work; and
(e) An estimate of the amount of money the public
body expects to save by rejecting the bids and performing the public work
itself.
9. 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;
(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; or
(f) A constructability review of a public work,
which review a local government or its authorized representative is required to
perform pursuant to NRS 338.1435.
(Added to NRS by 1999, 2392; A 1999, 3491, 3497; 2001, 252, 2006, 2022; 2003, 119, 1989, 1990, 2422, 2423, 2494, 2495; 2005, 1798, 1799; 2007, 2896, 2898; 2009, 434, 2670, 2672; 2011, 3686;
2013, 2968,
effective July 1, 2017)
NRS 338.1386 State or local government to award contract for smaller public
work to contractor or perform public work itself. If
the estimated cost of a public work is $100,000 or less, this State or a local
government shall:
1. Award a contract for the completion of
the public work to a properly licensed contractor in accordance with NRS 338.13862; or
2. Perform the public work itself in
accordance with NRS 338.13864.
(Added to NRS by 2003, 1984)
NRS 338.13862 Requirements for awarding contract for smaller public work to
contractor.
1. Before this State or a local government
awards a contract for the completion of a public work in accordance with
subsection 1 of NRS 338.1386, the State or the
local government must:
(a) If the estimated cost of the public work is
more than $25,000 but not more than $100,000, solicit bids from at least three
properly licensed contractors; and
(b) If the estimated cost of the public work is
$25,000 or less, solicit a bid from at least one properly licensed contractor.
2. Any bids received in response to a
solicitation for bids made pursuant to this section may be rejected if the
State or the local government determines that:
(a) The quality of the services, materials,
equipment or labor offered does not conform to the approved plan or
specifications;
(b) The bidder is not responsive or responsible;
or
(c) The public interest would be served by such a
rejection.
3. At least once each quarter, the State
and each local government shall prepare a report detailing, for each public
work over $25,000 for which a contract for its completion is awarded pursuant
to paragraph (a) of subsection 1, if any:
(a) The name of the contractor to whom the
contract was awarded;
(b) The amount of the contract awarded;
(c) A brief description of the public work; and
(d) The names of all contractors from whom bids
were solicited.
4. A report prepared pursuant to
subsection 3 is a public record and must be maintained on file at the
administrative offices of the applicable public body.
5. The provisions of this section do not
relieve this State from the duty to award the contract for the public work to a
bidder who is:
(a) Qualified pursuant to the applicable
provisions of NRS 338.1375 to 338.1382, inclusive; and
(b) The lowest responsive and responsible bidder,
if bids are required to be solicited from more than one properly licensed
contractor pursuant to subsection 1. For the purposes of this paragraph, the
lowest responsive and responsible bidder must be determined in consideration of
any applicable bidder’s preference granted pursuant to NRS
338.13844.
(Added to NRS by 2003, 1984; A 2009, 2673)
NRS 338.13864 Attestation required before State or local government may
perform certain smaller public works itself.
1. If the State or a local government
proposes to perform a public work itself in accordance with subsection 2 of NRS 338.1386, the public officer responsible for the
management of the public works of the State or the local government, as
applicable, must, if the estimated cost of the public work is more than $25,000
but not more than $100,000 and before work on the public work is commenced,
prepare a signed attestation regarding the decision of the State or the local
government to perform the public work itself.
2. An attestation prepared pursuant to
subsection 1:
(a) Must set forth:
(1) The estimated cost of the public work;
(2) A general statement as to why the
State or the local government has decided to perform the public work itself;
and
(3) A general statement that the public
work will adhere to the same quality and standards as would be required of a
properly licensed contractor if the public work had been awarded to a properly
licensed contractor; and
(b) Is a public record and must be maintained on file
at the administrative offices of the applicable public body.
(Added to NRS by 2003, 1985)
NRS 338.1389 Contract for public work for which estimated cost exceeds
$250,000 must be awarded to contractor who submits best bid; certain bids
deemed best bid; eligibility to receive preference in bidding; issuance of
certificate of eligibility by State Contractors’ Board; regulations; fees;
sanctions; objections.
1. Except as otherwise provided in
subsection 10 and NRS 338.1385, 338.1386 and 338.13864,
a public body or its authorized representative shall award a contract for a
public work for which the estimated cost exceeds $250,000 to the contractor who
submits the best bid.
2. Except as otherwise provided in subsection
10 or limited by subsection 11, the lowest bid that is:
(a) Submitted by a responsive and responsible
contractor who:
(1) Has been determined by the public body
to be a qualified bidder pursuant to NRS 338.1379
or 338.1382;
(2) At the time the contractor submits his
or her bid, provides a valid certificate of eligibility to receive a preference
in bidding on public works issued to the contractor by the State Contractors’
Board pursuant to subsection 3 or 4; and
(3) Within 2 hours after the completion of
the opening of the bids by the public body or its authorized representative,
submits a signed affidavit that meets the requirements of subsection 1 of NRS 338.0117; and
(b) Not more than 5 percent higher than the bid
submitted by the lowest responsive and responsible bidder who:
(1) Does not provide, at the time he or
she submits the bid, a valid certificate of eligibility to receive a preference
in bidding on public works issued to him or her by the State Contractors’ Board
pursuant to subsection 3 or 4; or
(2) Does not submit, within 2 hours after
the completion of the opening of the bids by the public body or its authorized
representative, a signed affidavit certifying that he or she will comply with
the requirements of paragraphs (a) to (d), inclusive, of subsection 1 of NRS 338.0117 for the duration of the contract,
Ê shall be
deemed to be the best bid for the purposes of this section.
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 or her 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 or her 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 or her 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 or her 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 renewal of his or her 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 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 the contractor 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, the contractor must submit a separate application for each
license pursuant to which the contractor 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:
(a) 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; or
(b) Is found by the Board to have, within the
preceding 5 years, materially breached a contract for a public work for which
the cost exceeds $5,000,000, the contractor is not eligible to receive a
preference in bidding on public works.
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.
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 bid
may receive a preference in bidding only if both or all of the joint venturers
separately meet the requirements of subsection 2.
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 who submitted a bid on the
public work or an entity who believes that the contractor who was awarded the
contract for the public work 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 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 not later than
3 business days after the opening of the bids by the public body or its
authorized representative.
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 the public body or
its authorized representative 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
the public body or its authorized representative may proceed to award the
contract accordingly.
(Added to NRS by 1999, 2395; A 1999, 3491, 3497; 2001, 252, 296, 2008, 2022, 2262; 2003, 119, 124, 1992, 2426, 2497; 2007, 864; 2011, 44; 2013, 1391)
NRS 338.13895 Award of contract to unlicensed or improperly licensed
contractor prohibited; replacement of unacceptable subcontractor before
contract is awarded; rescission of award of contract to unlicensed or
improperly licensed contractor before commencement of work.
1. The Division shall not award a 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 the person’s license. A subcontractor who
is:
(a) Named in the bid for the contract as a
subcontractor who will provide a portion of the work on the public work
pursuant to NRS 338.141; and
(b) Not properly licensed for that portion of the
work, or who, at the time of the bid, is on disqualified status with the
Division pursuant to NRS 338.1376,
Ê shall be deemed
unacceptable. If the subcontractor is deemed unacceptable pursuant to this
subsection, the contractor shall provide an acceptable subcontractor with no
increase in the amount of the contract or bid.
2. A local government 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 the person’s license. A subcontractor who is:
(a) Named in the bid for the contract as a
subcontractor who will provide a portion of the work on the public work
pursuant to NRS 338.141; and
(b) Not properly licensed for that portion of work,
Ê shall be
deemed unacceptable. If the subcontractor is deemed unacceptable pursuant to
this subsection, the contractor shall provide an acceptable subcontractor with
no increase in the amount of the contract or bid.
3. If, after awarding the contract, but
before commencement of the work, the public body or its authorized
representative discovers that the person to whom the contract was awarded is
not licensed, or that the contract would exceed the person’s license, the
public body or its authorized representative shall rescind the award of the
contract and may accept the next lowest bid for that public work from a
responsive bidder who was determined by the public body or its authorized
representative to be a qualified bidder pursuant to NRS
338.1379 or 338.1382 without requiring that
new bids be submitted.
(Added to NRS by 1999, 2395; A 2003, 2129, 2425, 2497; 2005, 1802; 2011, 3688)
NRS 338.139 Awarding of contract to specialty contractor: Conditions.
1. A public body or its authorized
representative may award a contract for a public work pursuant to NRS 338.1375 to 338.13895,
inclusive, to a specialty contractor if:
(a) The majority of the work to be performed on
the public work to which the contract pertains consists of specialty
contracting for which the specialty contractor is licensed; and
(b) The public work to which the contract
pertains is not part of a larger public work.
2. If a public body or its authorized
representative awards a contract to a specialty contractor pursuant to NRS 338.1375 to 338.13895,
inclusive, all work to be performed on the public work to which the contract
pertains that is outside the scope of the license of the specialty contractor
must be performed by a subcontractor who:
(a) Is licensed to perform such work; and
(b) At the time of the performance of the work,
is not on disqualified status with the Division pursuant to NRS 338.1376.
(Added to NRS by 2001, 2258; A 2003, 2129, 2429)
ADDITIONAL PROCEDURES, CONDITIONS, DUTIES AND LIMITATIONS
RELATING TO CONTRACTS
General Provisions
NRS 338.140 Requirements and limitations relating to drafting of
specifications for bids; documents generated by bidder in preparation or
determination of prices included in bid.
1. A public body shall not draft or cause
to be drafted specifications for bids, in connection with a public work:
(a) In such a manner as to limit the bidding,
directly or indirectly, to any one specific concern.
(b) Except in those instances where the product
is designated to match others in use on a particular public improvement either
completed or in the course of completion, calling for a designated material,
product, thing or service by specific brand or trade name unless the
specification lists at least two brands or trade names of comparable quality or
utility and is followed by the words “or equal” so that bidders may furnish any
equal material, product, thing or service.
(c) In such a manner as to hold the bidder to
whom such contract is awarded responsible for extra costs incurred as a result
of errors or omissions by the public body in the contract documents.
(d) Except as otherwise provided in subsection 2,
in such a manner as to require a bidder to furnish to the public body, whether
before or after the bid is submitted, documents generated in the preparation or
determination of prices included in the bid, except when requested by the
public body for:
(1) A determination of the price of
additional work performed pursuant to a change order;
(2) An evaluation of claims for costs
incurred for the performance of additional work;
(3) Preparation for arbitration or
litigation;
(4) A determination of the validity of the
protest of a bid;
(5) A determination of the validity of an
increase or decrease in the price of a contract in accordance with a provision
in the contract which authorizes such an increase or decrease to correspond to
changing market conditions; or
(6) Any combination thereof.
2. A public body may, at the time a bid is
submitted, require documents generated in the preparation or determination of
prices included in the bid to be transmitted to and stored electronically by
the public body or a third party. Any document furnished by a bidder pursuant
to this subsection may be transmitted and stored electronically if the manner
of transmission ensures that the documents are exclusively accessible to the
bidder. Electronic transmission and storage of such documents does not waive or
otherwise affect the proprietary interests of the bidder in the documents,
except that the third party or the bidder must release any document furnished
pursuant to this subsection if requested by the public body pursuant to paragraph
(d) of subsection 1.
3. In those cases involving a unique or
novel product application required to be used in the public interest, or where
only one brand or trade name is known to the public body, it may list only one.
4. Specifications must provide a period of
time of at least 7 days after award of the contract for submission of data
substantiating a request for a substitution of “an equal” item.
(Added to NRS by 1967, 929; A 1975, 540; 1997, 3164; 2003, 2429; 2005, 1802, 2891; 2007, 3266)
NRS 338.141 Bids to include certain information concerning subcontractors
and prime contractors; when bids deemed not responsive with respect to
subcontractors; requirements and penalties for substitution of named
subcontractors.
1. Except as otherwise provided in NRS 338.1727, each bid submitted to a public body for
any public work to which paragraph (a) of subsection 1 of NRS 338.1385, paragraph (a) of subsection 1 of NRS 338.143 or NRS
408.327 applies, must include:
(a) If the public body provides a list of the
labor or portions of the public work which are estimated by the public body to
exceed 3 percent of the estimated cost of the public work, the name of each
first tier subcontractor who will provide such labor or portion of the work on
the public work which is estimated to exceed 3 percent of the estimated cost of
the public work; or
(b) If the public body does not provide a list of
the labor or portions of the public work which are estimated by the public body
to exceed 3 percent of the estimated cost of the public work, the name of each
first tier subcontractor who will provide labor or a portion of the work on the
public work to the prime contractor for which the first tier subcontractor will
be paid an amount exceeding 5 percent of the prime contractor’s total bid. If
the bid is submitted pursuant to this paragraph, 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:
(1) The name of each first tier
subcontractor who will provide labor or a portion of the work on the public
work to the prime contractor for which the first tier subcontractor will be
paid an amount exceeding $250,000.
(2) If any one of the contractors who
submitted one of the three lowest bids will employ a first tier subcontractor
who will provide labor or a portion of the work on the public work to the prime
contractor for which the first tier subcontractor will not be paid an amount
exceeding $250,000, the name of each first tier subcontractor who will provide
labor or a portion of the work on the public work to the prime contractor for
which the first tier subcontractor will be paid 1 percent of the prime
contractor’s total bid or $50,000, whichever is greater.
(3) For each first tier subcontractor
whose name is listed pursuant to subparagraph (1) or (2), the number of the
license issued to the first tier subcontractor pursuant to chapter 624 of NRS.
2. The lists required by subsection 1 must
include a description of the labor or portion of the work which each first tier
subcontractor named in the list will provide to the prime contractor.
3. A prime contractor shall include his or
her name on a list required by paragraph (a) or (b) of subsection 1. If the
prime contractor will perform any work which is more than 1 percent of
the prime contractor’s total bid and which is not being performed by a
subcontractor listed pursuant to paragraph (a) or (b) of subsection 1, the
prime contractor shall also include on the list:
(a) A description of the labor or portion of the
work that the prime contractor will perform; or
(b) A statement that the prime contractor will
perform all work other than that being performed by a subcontractor listed
pursuant to paragraph (a) or (b) of subsection 1.
4. Except as otherwise provided in this
subsection, if a contractor:
(a) Fails to submit the list within the required
time; or
(b) Submits a list that includes the name of a
subcontractor who, at the time of the submission of the list, is on
disqualified status with the Division pursuant to NRS
338.1376,
Ê the
contractor’s bid shall be deemed not responsive. A contractor’s bid shall not
be deemed not responsive on the grounds that the contractor submitted a list
that includes the name of a subcontractor who, at the time of the submission of
the list, is on disqualified status with the Division pursuant to NRS 338.1376 if the contractor, before the award of
the contract, provides an acceptable replacement subcontractor in the manner
set forth in subsection 1 or 2 of NRS 338.13895.
5. A prime contractor shall not substitute
a subcontractor for any subcontractor who is named in the bid, unless:
(a) The public body or its authorized
representative objects to the subcontractor, requests in writing a change in
the subcontractor and pays any increase in costs resulting from the change.
(b) The substitution is approved by the public
body or its authorized representative. The substitution must be approved if the
public body or its authorized representative 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 named 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;
(3) The named subcontractor fails or
refuses to perform his or her subcontract within a reasonable time or is unable
to furnish a performance bond and payment bond pursuant to NRS 339.025; or
(4) The named subcontractor is not
properly licensed to provide that labor or portion of the work.
(c) If the public body awarding the contract is a
governing body, the public body or its authorized representative, in awarding
the contract pursuant to NRS 338.1375 to 338.139, inclusive:
(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.
6. If a prime contractor substitutes a
subcontractor for any subcontractor who is named in the bid without complying
with the provisions of subsection 5, the prime contractor shall forfeit, as a
penalty to the public body that awarded the contract, an amount equal to 1
percent of the total amount of the contract.
7. If a prime contractor, after the
submission of the bid, substitutes a subcontractor to perform the work
indicated pursuant to subsection 3 that the prime contractor would perform, the
prime contractor shall forfeit as a penalty to the public body that awarded the
contract, the lesser of, and excluding any amount of the contract that is
attributable to change orders:
(a) An amount equal to 2.5 percent of the total
amount of the contract; or
(b) An amount equal to 35 percent of the estimate
by the engineer of the cost of the work the prime contractor indicated pursuant
to subsection 3 that he or she would perform on the public work.
8. As used in this section:
(a) ”First tier subcontractor” means a
subcontractor who contracts directly with a prime contractor to provide labor,
materials or services for a construction project.
(b) ”General terms” means the terms and
conditions of a contract that set the basic requirements for a public work 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 public work 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.
(Added to NRS by 1993, 2130; A 2001, 573, 2268; 2003, 2130, 2430, 2500; 2005, 1803; 2011, 3688;
2013, 2970)
NRS 338.1415 Local government prohibited from accepting bid on contract for
public work submitted by contractor who materially breached certain contracts
for public works. A local
government or its authorized representative shall not accept a bid on a
contract for a public work if the contractor who submits the bid has, within
the preceding year, materially breached a contract for a public work for which
the cost exceeds $25,000,000.
(Added to NRS by 2011, 41; A 2013, 1394)
NRS 338.142 Notice of protest of award of contract: Period for filing;
contents; posting and disposition of bond or security; stay of action; immunity
of public body from liability to bidder.
1. A person who bids on a contract may
file a notice of protest regarding the awarding of the contract with the
authorized representative designated by the public body within 5 business days
after the date the recommendation to award a contract is issued by the public
body or its authorized representative.
2. The notice of protest must include a
written statement setting forth with specificity the reasons the person filing
the notice believes the applicable provisions of law were violated.
3. A person filing a notice of protest may
be required by the public body or its authorized representative, at the time
the notice of protest is filed, to post a bond with a good and solvent surety
authorized to do business in this state or submit other security, in a form
approved by the public body, to the public body who shall hold the bond or
other security until a determination is made on the protest. A bond posted or
other security submitted with a notice of protest must be in an amount equal to
the lesser of:
(a) Twenty-five percent of the total value of the
bid submitted by the person filing the notice of protest; or
(b) Two hundred fifty thousand dollars.
4. A notice of protest filed in accordance
with the provisions of this section operates as a stay of action in relation to
the awarding of any contract until a determination is made by the public body
on the protest.
5. A person who makes an unsuccessful bid
may not seek any type of judicial intervention until the public body has made a
determination on the protest and awarded the contract.
6. Neither a public body nor any
authorized representative of the public body is liable for any costs, expenses,
attorney’s fees, loss of income or other damages sustained by a person who
makes a bid, whether or not the person files a notice of protest pursuant to
this section.
7. If the protest is upheld, the bond
posted or other security submitted with the notice of protest must be returned
to the person who posted the bond or submitted the security. If the protest is
rejected, a claim may be made against the bond or other security by the public
body in an amount equal to the expenses incurred by the public body because of
the unsuccessful protest. Any money remaining after the claim has been
satisfied must be returned to the person who posted the bond or submitted the
security.
(Added to NRS by 2003, 2410; A 2011, 3690)
NRS 338.1425 Prohibition against public body entering into contract with
design professional who is not member of design-build team for services on
public work until certain period after public body transmits certain
information to licensing board of design professional; posting of such
information by licensing board. A
public body shall not enter into a contract with a design professional who is
not a member of a design-build team for the provision of services in connection
with a public work until 3 days after the public body has transmitted the
information relating to the selection of the design professional to the
licensing board that regulates the design professional, including, without
limitation, the name of the public body, the name of the design professional,
whether the design professional possesses a certificate of eligibility to
receive a preference when competing for public works and a brief description of
the project and services the design professional was selected for, and the
licensing board has posted such information on its Internet website. A
licensing board shall post any information received pursuant to this subsection
within 1 business day after receiving such information.
(Added to NRS by 2011, 3693)
NRS 338.1427 Duty of State Public Works Division to report to Office of
Economic Development concerning local emerging small businesses.
1. The Division shall submit a report
every 6 months to the Office. The report must include, without limitation, for
the period since the last report:
(a) The number of local emerging small businesses
that the Division solicited to submit a bid or proposal on a contract for a
public work in this State;
(b) The number of local emerging small businesses
that submitted a bid or proposal on a contract for a public work in this State;
(c) The number of contracts for public works of
this State that were awarded by the Division to local emerging small
businesses;
(d) The total number of dollars’ worth of
contracts for public works of this State that were awarded by the Division to
local emerging small businesses;
(e) Whether each goal established by the Office
pursuant to NRS 231.1407 has been
achieved;
(f) For each goal established by the Office
pursuant to NRS 231.1407 that has not
been achieved, information on all efforts undertaken by the Division to achieve
the goals in the current fiscal year and a proposed plan for achieving the
goals in the subsequent fiscal year; and
(g) Any other information deemed relevant by the
Office.
2. The reports required pursuant to
subsection 1 must be submitted within 30 days after:
(a) The end of each fiscal year; and
(b) The end of each calendar year.
3. As used in this section:
(a) “Local emerging small business” has the
meaning ascribed to it in NRS 231.1402.
(b) “Office” means the Office of Economic
Development.
(Added to NRS by 2013, 3691)
Alternative Procedures for Local Governments
NRS 338.143 Advertising for bids and compliance with certain provisions
required for commencement of certain public works; quarterly reports of awarded
contracts by authorized representatives; availability of plans and
specifications for public inspection; award of contract to lowest responsive
and responsible bidder; rejection of bids; authority to award contract without
competitive bidding if no bids received in response to advertisement for bids
in certain circumstances; requirements before local government may commence
public work itself; exemptions. [Effective through June 30, 2017.]
1. Except as otherwise provided in
subsection 8, a local government or its authorized representative that awards a
contract for a public work in accordance with paragraph (b) of subsection 1 of NRS 338.1373 shall not:
(a) Commence a public work for which the
estimated cost exceeds $100,000 unless it advertises in a newspaper qualified
pursuant to chapter 238 of NRS that is
published in the county where the public work will be performed for bids for
the public work. If no qualified newspaper is published within the county where
the public work will be performed, the required advertisement must be published
in some qualified newspaper that is printed in the State of Nevada and has a
general circulation within the county.
(b) Commence a public work for which the
estimated cost is $100,000 or less unless it complies with the provisions of NRS 338.1442, 338.1444
or 338.1446.
(c) Divide a public work into separate portions
to avoid the requirements of paragraph (a) or (b).
2. At least once each quarter, the
authorized representative of a local government shall report to the governing
body any contract that the authorized representative awarded pursuant to
subsection 1 in the immediately preceding quarter.
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 public work must be awarded on the basis of bids
received.
4. Except
as otherwise provided in subsection 5 and NRS 338.147,
the local government or its authorized representative shall award a contract to
the lowest responsive and responsible bidder.
5. Any bids received in response to an
advertisement for bids may be rejected if the local government or its
authorized representative 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 plans or
specifications; or
(c) The public interest would be served by such a
rejection.
6. A local government may let a contract
without competitive bidding if no bids were received in response to an advertisement
for bids and:
(a) The local government publishes a notice
stating that no bids were received and that the contract may be let without
further bidding;
(b) The local government considers any bid
submitted in response to the notice published pursuant to paragraph (a);
(c) The local government lets the contract not
less than 7 days after publishing a notice pursuant to paragraph (a); and
(d) The contract is awarded to the lowest
responsive and responsible bidder.
7. Before a local government may commence
the performance of a public work itself pursuant 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, the local
government 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 public work, 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 public work, 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 public work;
(d) An estimate of the total cost of the public
work, including the fair market value of or, if known, the actual cost of all
materials, supplies, labor and equipment to be used for the public work; and
(e) An estimate of the amount of money the local
government expects to save by rejecting the bids and performing the public work
itself.
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;
(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;
(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;
(f) A constructability review of a public work,
which review a local government or its authorized representative is required to
perform pursuant to NRS 338.1435; or
(g) The preconstruction or construction of a
public work for which a public body enters into a contract with a construction
manager at risk pursuant to NRS 338.1685 to 338.16995, inclusive.
(Added to NRS by 1987, 2322; A 1993, 913, 1439, 2131, 2134, 2135; 1995, 575, 576; 1999, 1360, 1362, 2398, 2399, 3474, 3476, 3490; 2001, 252, 269, 2010, 2022; 2003, 119, 1995, 1996, 2431, 2433; 2005, 1805, 1806; 2007, 2899, 2901; 2009, 436; 2011, 3691)
NRS 338.143 Advertising for bids and
compliance with certain provisions required for commencement of certain public
works; quarterly reports of awarded contracts by authorized representatives;
availability of plans and specifications for public inspection; award of
contract to lowest responsive and responsible bidder; rejection of bids;
authority to award contract without competitive bidding if no bids received in
response to advertisement for bids in certain circumstances; requirements
before local government may commence public work itself; exemptions. [Effective
July 1, 2017.]
1. Except as otherwise provided in
subsection 8, a local government or its authorized representative that awards a
contract for a public work in accordance with paragraph (b) of subsection 1 of NRS 338.1373 shall not:
(a) Commence a public work for which the
estimated cost exceeds $100,000 unless it advertises in a newspaper qualified
pursuant to chapter 238 of NRS that is
published in the county where the public work will be performed for bids for
the public work. If no qualified newspaper is published within the county where
the public work will be performed, the required advertisement must be published
in some qualified newspaper that is printed in the State of Nevada and has a
general circulation within the county.
(b) Commence a public work for which the
estimated cost is $100,000 or less unless it complies with the provisions of NRS 338.1442, 338.1444
or 338.1446.
(c) Divide a public work into separate portions
to avoid the requirements of paragraph (a) or (b).
2. At least once each quarter, the
authorized representative of a local government shall report to the governing
body any contract that the authorized representative awarded pursuant to
subsection 1 in the immediately preceding quarter.
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 public work must be awarded on the basis of bids
received.
4. Except
as otherwise provided in subsection 5 and NRS 338.147,
the local government or its authorized representative shall award a contract to
the lowest responsive and responsible bidder.
5. Any bids received in response to an
advertisement for bids may be rejected if the local government or its
authorized representative 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 plans or
specifications; or
(c) The public interest would be served by such a
rejection.
6. A local government may let a contract
without competitive bidding if no bids were received in response to an advertisement
for bids and:
(a) The local government publishes a notice
stating that no bids were received and that the contract may be let without
further bidding;
(b) The local government considers any bid
submitted in response to the notice published pursuant to paragraph (a);
(c) The local government lets the contract not
less than 7 days after publishing a notice pursuant to paragraph (a); and
(d) The contract is awarded to the lowest
responsive and responsible bidder.
7. Before a local government may commence
the performance of a public work itself pursuant 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, the local
government 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 public work, 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 public work, 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 public work;
(d) An estimate of the total cost of the public
work, including the fair market value of or, if known, the actual cost of all
materials, supplies, labor and equipment to be used for the public work; and
(e) An estimate of the amount of money the local
government expects to save by rejecting the bids and performing the public work
itself.
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;
(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;
(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; or
(f) A constructability review of a public work,
which review a local government or its authorized representative is required to
perform pursuant to NRS 338.1435.
(Added to NRS by 1987, 2322; A 1993, 913, 1439, 2131, 2134, 2135; 1995, 575, 576; 1999, 1360, 1362, 2398, 2399, 3474, 3476, 3490; 2001, 252, 269, 2010, 2022; 2003, 119, 1995, 1996, 2431, 2433; 2005, 1805, 1806; 2007, 2899, 2901; 2009, 436; 2011, 3691;
2013, 2972,
effective July 1, 2017)
NRS 338.1435 Constructability review required before advertising for bids.
1. Before a local government or its
authorized representative advertises for bids for a contract for a public work,
the local government or its authorized representative shall perform a review of
the approved plans and specifications to determine if the plans and
specifications are complete and contain all necessary information and
specifications to construct the public work, if:
(a) The plans and specifications are to be used
for the first time on a public work; and
(b) The plans and specifications are for a public
work that has an estimated cost which exceeds $10,000,000.
2. A constructability review required
pursuant to subsection 1 must be performed by an architect registered pursuant
to chapter 623 of NRS, a contractor licensed
pursuant to chapter 624 of NRS or a
professional engineer licensed pursuant to chapter
625 of NRS and must include, without limitation:
(a) A determination of whether a competent
contractor would be able to construct the public work based on the approved
plans and specifications; and
(b) A review of the approved plans and
specifications for the public work for completeness, clarity and economic
feasibility.
3. If the local government or its
authorized representative does not employ a person who has the expertise to
perform a constructability review as described in subsection 2, the local
government or its authorized representative must contract with an independent
third party who is an architect registered pursuant to chapter 623 of NRS, a contractor licensed
pursuant to chapter 624 of NRS or a
professional engineer licensed pursuant to chapter
625 of NRS to perform the constructability review. A contract entered into
pursuant to this section between a local government or its authorized
representative and an independent third party is not required to be awarded by
competitive bidding.
(Added to NRS by 2007, 2895)
NRS 338.1442 Local government to award contract for smaller public work to
contractor or perform public work itself. If
the estimated cost of a public work is $100,000 or less, a local government
shall:
1. Award a contract for the completion of
the public work to a properly licensed contractor in accordance with NRS 338.1444; or
2. Perform the public work itself in
accordance with NRS 338.1446.
(Added to NRS by 2003, 1985)
NRS 338.1444 Requirements for awarding contract for smaller public work to
contractor.
1. Before a local government awards a
contract for the completion of a public work in accordance with subsection 1 of
NRS 338.1442, the local government must:
(a) If the estimated cost of the public work is
more than $25,000 but not more than $100,000, solicit bids from at least three
properly licensed contractors; and
(b) If the estimated cost of the public work is
$25,000 or less, solicit a bid from at least one properly licensed contractor.
2. Any bids received in response to a
solicitation for bids made pursuant to this section may be rejected if the
local government determines that:
(a) The quality of the services, materials,
equipment or labor offered does not conform to the approved plan or
specifications;
(b) The bidder is not responsive or responsible;
or
(c) The public interest would be served by such a
rejection.
3. At least once each quarter, a local
government shall prepare a report detailing, for each public work over $25,000
for which a contract for its completion is awarded pursuant to paragraph (a) of
subsection 1, if any:
(a) The name of the contractor to whom the
contract was awarded;
(b) The amount of the contract awarded;
(c) A brief description of the public work; and
(d) The names of all contractors from whom bids
were solicited.
4. A report prepared pursuant to
subsection 3 is a public record and must be maintained on file at the
administrative offices of the applicable public body.
5. The provisions of this section do not
relieve a local government from the duty to award the contract for the public
work to a bidder who is the lowest responsive and responsible bidder if bids
are required to be solicited from more than one properly licensed contractor
pursuant to subsection 1.
(Added to NRS by 2003, 1985)
NRS 338.1446 Attestation required before local government may perform certain
smaller public works itself.
1. If a local government proposes to
perform a public work itself in accordance with subsection 2 of NRS 338.1442, the public officer responsible for the
management of the public works of the local government must, if the estimated
cost of the public work is more than $25,000 but not more than $100,000 and
before work on the public work is commenced, prepare a signed attestation
regarding the decision of the local government to perform the public work
itself.
2. An attestation prepared pursuant to
subsection 1:
(a) Must set forth:
(1) The estimated cost of the public work;
(2) A general statement as to why the
local government has decided to perform the public work itself; and
(3) A general statement that the public
work will adhere to the same quality and standards as would be required of a
properly licensed contractor if the public work had been awarded to a properly
licensed contractor; and
(b) Is a public record and must be maintained on
file at the administrative offices of the local government.
(Added to NRS by 2003, 1986)
NRS 338.147 Contract for public work for which estimated cost exceeds
$250,000 must be awarded to contractor who submits best bid; certain bids
deemed best bid; eligibility to receive preference in bidding; issuance of
certificate of eligibility by State Contractors’ Board; regulations; fees; sanctions;
objections.
1. Except as otherwise provided in
subsection 10 and NRS 338.143, 338.1442 and 338.1446, a
local government or its authorized representative shall award a contract for a
public work for which the estimated cost exceeds $250,000 to the contractor who
submits the best bid.
2. Except as otherwise provided in subsection
10 or limited by subsection 11, the lowest bid that is:
(a) Submitted by a contractor who:
(1) Has been found to be a responsible and
responsive contractor by the local government or its authorized representative;
(2) At the time the contractor submits his
or her bid, provides a valid certificate of eligibility to receive a preference
in bidding on public works issued to the contractor by the State Contractors’
Board pursuant to subsection 3 or 4; and
(3) Within 2 hours after the completion of
the opening of the bids by the local government or its authorized
representative, submits a signed affidavit that meets the requirements of
subsection 1 of NRS 338.0117; and
(b) Not more than 5 percent higher than the bid
submitted by the lowest responsive and responsible bidder who:
(1) Does not provide, at the time he or
she submits the bid, a valid certificate of eligibility to receive a preference
in bidding on public works issued to him or her by the State Contractors’ Board
pursuant to subsection 3 or 4; or
(2) Does not submit, within 2 hours after
the completion of the opening of the bids by the public body or its authorized
representative, a signed affidavit certifying that he or she will comply with
the requirements of paragraphs (a) to (d), inclusive, of subsection 1 of NRS 338.0117 for the duration of the contract,
Ê shall be
deemed to be the best bid for the purposes of this section.
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 or her 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 or her 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 or her 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 or her 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 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 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 renewal of his or her 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 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 the contractor 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, the contractor must submit a separate application for
each license pursuant to which the contractor 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:
(a) 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; or
(b) Is found by the Board to have, within the
preceding 5 years, materially breached a contract for a public work for which
the cost exceeds $5,000,000, the contractor is not eligible to receive a
preference in bidding on public works.
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.
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 bid
may receive a preference in bidding only if both or all of the joint venturers
separately meet the requirements of subsection 2.
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 who submitted a bid on the
public work or an entity who believes that the contractor who was awarded the
contract for the public work 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 local government to
which the contractor has submitted a bid 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 local government not later
than 3 business days after the opening of the bids by the local government or
its authorized representative.
14. If a local government receives a
written objection pursuant to subsection 13, the local government shall
determine whether the objection is accompanied by the proof or substantiating
evidence required pursuant to paragraph (a) of that subsection. If the local
government determines that the objection is not accompanied by the required
proof or substantiating evidence, the local government shall dismiss the
objection and the local government or its authorized representative may proceed
immediately to award the contract. If the local government determines that the
objection is accompanied by the required proof or substantiating evidence, the local
government shall determine whether the contractor qualifies for the certificate
pursuant to the provisions of this section and the local government or its
authorized representative may proceed to award the contract accordingly.
(Added to NRS by 1985, 670; A 1987, 1476; 1989, 932; 1991, 2374; 1993, 1382, 1383, 2133, 2135; 1995, 678, 2062; 1999, 1850, 2401, 3477; 2001, 252, 300, 2011, 2022, 2269; 2003, 119, 124, 1997, 2435; 2007, 866; 2011, 47; 2013, 1395)
NRS 338.1475 Award of contract to unlicensed or improperly licensed
contractor prohibited; replacement of unacceptable subcontractor before
contract is awarded; rescission of award of contract to unlicensed or
improperly licensed contractor before commencement of work.
1. A local government or its authorized
representative 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 the person’s license. A subcontractor
who is:
(a) Named in the bid for the contract as a
subcontractor who will provide a portion of the work on the public work pursuant
to NRS 338.141; and
(b) Not properly licensed for that portion of the
work,
Ê shall be
deemed unacceptable. If the subcontractor is deemed unacceptable pursuant to
this subsection, the contractor shall provide an acceptable subcontractor.
2. If, after awarding the contract, but
before commencement of the work, the local government or its authorized
representative discovers that the person to whom the contract was awarded is
not licensed, or that the contract would exceed the person’s license, the local
government or its authorized representative shall rescind the award of the
contract and may accept the next lowest bid for that public work from a
responsive and responsible bidder without requiring that new bids be submitted.
(Added to NRS by 1983, 913; A 1993, 2133; 1999, 2400; 2003, 2434)
NRS 338.148 Awarding of contract to specialty contractor: Conditions.
1. A local government or its authorized
representative may award a contract for a public work to a specialty contractor
pursuant to NRS 338.143 to 338.1475,
inclusive, if:
(a) The majority of the work to be performed on
the public work to which the contract pertains consists of specialty
contracting for which the specialty contractor is licensed; and
(b) The public work to which the contract
pertains is not part of a larger public work.
2. If a local government or its authorized
representative awards a contract to a specialty contractor pursuant to NRS 338.143 to 338.1475,
inclusive, all work to be performed on the public work to which the contract
pertains that is outside the scope of the license of the specialty contractor
must be performed by a subcontractor who is licensed to perform such work.
(Added to NRS by 2001, 2258; A 2003, 2438)
Provisions Required in Contracts
NRS 338.150 Provisions requiring use of method of alternate dispute
resolution before initiation of judicial action; exception.
1. Except as otherwise provided in
subsection 2, a public body charged with the drafting of specifications for a
public work shall include in the specifications a clause requiring the use of a
method of alternate dispute resolution before initiation of a judicial action
if a dispute arising between the public body and the contractor engaged on a
public work cannot otherwise be settled.
2. The provisions of subsection 1 do not
require the Department of Transportation to include such a clause in any
contract entered into by the Department.
(Added to NRS by 1969, 618; A 1971, 621; 1979, 1796; 1985, 1462; 2003, 2438; 2005, 1808; 2009, 424)
NRS 338.153 Provision requiring persons who provide labor, equipment,
materials, supplies or services for public work to comply with all applicable
state and local laws. A public
body shall include in each contract for a public work a clause requiring each
contractor, subcontractor and other person who provides labor, equipment,
materials, supplies or services for the public work to comply with the
requirements of all applicable state and local laws, including, without
limitation, any applicable licensing requirements and requirements for the
payment of sales and use taxes on equipment, materials and supplies provided
for the public work.
(Added to NRS by 2003, 20th
Special Session, 21)
NRS 338.155 Provisions relating to design professional who is not member of
design-build team.
1. If a public body enters into a contract
with a design professional who is not a member of a design-build team, for the
provision of services in connection with a public work, the contract:
(a) Must set forth:
(1) The specific period within which the
public body must pay the design professional.
(2) The specific period and manner in
which the public body may dispute a payment or portion thereof that the design
professional alleges is due.
(3) The terms of any penalty that will be
imposed upon the public body if the public body fails to pay the design
professional within the specific period set forth in the contract pursuant to
subparagraph (1).
(4) That the prevailing party in an action
to enforce the contract is entitled to reasonable attorney’s fees and costs.
(b) May set forth the terms of any discount that
the public body will receive if the public body pays the design professional
within the specific period set forth in the contract pursuant to subparagraph
(1) of paragraph (a).
(c) May set forth the terms by which the design
professional agrees to name the public body, at the cost of the public body, as
an additional insured in an insurance policy held by the design professional,
if the policy allows such an addition.
(d) Must not require the design professional to
defend, indemnify or hold harmless the public body or the employees, officers
or agents of that public body from any liability, damage, loss, claim, action
or proceeding caused by the negligence, errors, omissions, recklessness or
intentional misconduct of the employees, officers or agents of the public body.
(e) Except as otherwise provided in this
paragraph, may require the design professional to defend, indemnify and hold
harmless the public body, and the employees, officers and agents of the public
body from any liabilities, damages, losses, claims, actions or proceedings,
including, without limitation, reasonable attorneys’ fees and costs, to the
extent that such liabilities, damages, losses, claims, actions or proceedings
are caused by the negligence, errors, omissions, recklessness or intentional
misconduct of the design professional or the employees or agents of the design
professional in the performance of the contract. If the insurer by which the
design professional is insured against professional liability does not so
defend the public body and the employees, officers and agents of the public
body and the design professional is adjudicated to be liable by a trier of
fact, the trier of fact shall award reasonable attorney’s fees and costs to be
paid to the public body by the design professional in an amount which is
proportionate to the liability of the design professional.
2. Any provision of a contract entered
into by a public body and a design professional who is not a member of a
design-build team that conflicts with the provisions of paragraph (d) or (e) of
subsection 1 is void.
3. As used in this section, “agents” means
those persons who are directly involved in and acting on behalf of the public
body or the design professional, as applicable, in furtherance of the contract
or the public work to which the contract pertains.
(Added to NRS by 1997, 2975; A 1999, 3481; 2001, 1270, 2022; 2003, 119, 124, 2438; 2005, 823; 2009, 2226;
2011, 3693)
CONTRACTS FOR TRANSPORTATION FACILITIES
NRS 338.161 “Transportation facility” defined. As
used in NRS 338.161 to 338.168,
inclusive, unless the context otherwise requires, “transportation facility”
means a road, railroad, bridge, tunnel, overpass, airport, mass transit
facility, parking facility for vehicles or similar commercial facility used for
the support of or the transportation of persons or goods, including, without
limitation, any other property that is needed to operate the facility. The term
does not include a toll bridge or toll road.
(Added to NRS by 2003, 2022)
NRS 338.162 Alternative methods of authorization. A
public body may authorize a person to develop, construct, improve, maintain or
operate, or any combination thereof, a transportation facility pursuant to NRS 338.163 or 338.164.
(Added to NRS by 2003, 2022)
NRS 338.163 Submission of request to public body; contents of request.
1. A person may submit a request to a
public body to develop, construct, improve, maintain or operate, or any
combination thereof, a transportation facility.
2. The request must be accompanied by the
following information:
(a) A topographic map indicating the location of
the transportation facility.
(b) A description of the transportation facility,
including, without limitation, the conceptual design of the transportation
facility and all proposed interconnections with other transportation
facilities.
(c) The projected total cost of the
transportation facility over its life and the proposed date for the development
of or the commencement of the construction of, or improvements to, the
transportation facility.
(d) A statement setting forth the method by which
the person submitting the request proposes to secure all property interests
required for the transportation facility. The statement must include, without
limitation:
(1) The names and addresses, if known, of
the current owners of any property needed for the transportation facility;
(2) The nature of the property interests
to be acquired; and
(3) Any property that the person
submitting the request proposes that the public body condemn.
(e) Information relating to the current
transportation plans, if any, of any governmental entity in the jurisdiction of
which any portion of the transportation facility is located.
(f) A list of all permits and approvals required
for the development or construction of or improvement to the transportation
facility from local, state or federal agencies and a projected schedule for
obtaining those permits and approvals.
(g) A list of the facilities of any utility or
existing transportation facility that will be crossed by the transportation
facility and a statement of the plans of the person submitting the request to
accommodate such crossings.
(h) A statement setting forth the general plans
of the person submitting the request for financing and operating the
transportation facility, which must include, without limitation:
(1) A plan for the development, financing
and operation of the transportation facility, including, without limitation, an
indication of the proposed sources of money for the development and operation
of the transportation facility, the anticipated use of such money and the
anticipated schedule for the receipt of such money;
(2) A list of any assumptions made by the
person about the anticipated use of the transportation facility, including,
without limitation, the fees that will be charged for the use of the
transportation facility, and a discussion of those assumptions;
(3) The identification of any risk factors
identified by the person that are associated with developing, constructing or
improving the transportation facility and the plan for addressing those risk
factors;
(4) The identification of any local, state
or federal resources that the person anticipates requesting for development and
operation of the transportation facility, including, without limitation, an
anticipated schedule for the receipt of those resources and the effect of those
resources on any statewide or regional program for the improvement of
transportation; and
(5) The identification and analysis of any
costs or benefits associated with the proposed facility, performed by a
professional engineer who is licensed pursuant to chapter
625 of NRS.
(i) The names and addresses of the persons who may
be contacted for further information concerning the request.
(j) Any additional material and information that
the public body may request.
(Added to NRS by 2003, 2022)
NRS 338.164 Request for submission of proposals by public body. If a public body receives a request regarding
a transportation facility pursuant to NRS 338.163
and the public body determines that the transportation facility serves a public
purpose, the public body may request other persons to submit proposals to
develop, construct, improve, maintain or operate, or any combination thereof,
the transportation facility.
(Added to NRS by 2003, 2023)
NRS 338.166 Approval of request or proposal: Determination of public
purpose; staff reports; copy of request or proposal to be furnished to affected
governmental entities; fee; approval contingent on entering agreement with
public body; establishment of date for development of or commencement of
construction of transportation facility.
1. A public body may approve a request or
proposal submitted pursuant to NRS 338.163 or 338.164 if the public body determines that the
transportation facility serves a public purpose. In determining whether the
transportation facility serves a public purpose, the public body shall consider
whether:
(a) There is a public need for the type of
transportation facility that is proposed;
(b) The proposed interconnections between the
transportation facility and existing transportation facilities and the plans of
the person submitting the request for the operation of the transportation
facility are reasonable and compatible with any statewide or regional program
for the improvement of transportation and with the transportation plans of any
other governmental entity in the jurisdiction of which any portion of the
transportation facility will be located;
(c) The estimated cost of the transportation
facility is reasonable in relation to similar transportation facilities, as
determined by an analysis of the cost performed by a professional engineer who
is licensed pursuant to chapter 625 of NRS;
(d) The plans of the person submitting the
request will result in the timely development or construction of, or
improvement to, the transportation facility or its more efficient operation;
(e) The plans of the person submitting the
request contain any penalties for the failure of the person submitting the
request to meet any deadline which results in the untimely development or
construction of, or improvement to, the transportation facility or failure to
meet any deadline for its more efficient operation; and
(f) The long-term quality of the transportation
facility will meet a level of performance established by the public body over a
sufficient duration of time to provide value to the public.
2. In evaluating a request or proposal
submitted pursuant to NRS 338.163 or 338.164, the public body may consider internal staff
reports prepared by personnel of the public body who are familiar with the
operation of similar transportation facilities or the advice of outside
advisors or consultants with relevant experience.
3. The public body shall request that a
person who submitted a request or proposal pursuant to NRS
338.163 or 338.164 furnish a copy of the
request or proposal to each governmental entity that has jurisdiction over an
area in which any part of the transportation facility is located. Within 30
days after receipt of such a request or proposal, the governmental entity shall
submit in writing to the public body, for consideration by the public body, any
comments that the governmental entity has concerning the transportation
facility and shall indicate whether the transportation facility is compatible
with any local, regional or statewide transportation plan or program that is
applicable to the governmental entity.
4. A public body shall charge a reasonable
fee to cover the costs of processing, reviewing and evaluating a request or
proposal submitted pursuant to NRS 338.163 or 338.164, including, without limitation, reasonable
fees for the services of an attorney or a financial or other consultant or
advisor, to be collected before the public body accepts the request or proposal
for processing, review and evaluation.
5. The approval of a request or proposal
by the public body is contingent on the person who submitted the request or
proposal entering into an agreement with the public body. In such an agreement,
the public body shall include, without limitation:
(a) Criteria that address the long-term quality
of the transportation facility.
(b) The date of termination of the authority and
duties pursuant to NRS 338.161 to 338.168, inclusive, of the person whose request or
proposal was approved by the public body with respect to the transportation
facility and for the dedication of the transportation facility to the public
body on that date.
(c) Provision for the imposition by the person
whose request or proposal was approved by the public body of such rates, fees
or other charges as may be established from time to time by agreement of the parties
for use of all or a portion of a transportation facility, other than a bridge
or road.
6. In connection with the approval of a
transportation facility, the public body shall establish a date for the
development of or the commencement of the construction of, or improvements to,
the transportation facility. The public body may extend the date from time to
time.
(Added to NRS by 2003, 2023)
NRS 338.167 Contract for transportation services. A
public body may contract with a person whose request or proposal is approved
pursuant to NRS 338.166 for transportation services
to be provided by the transportation facility in exchange for such payments for
service and other consideration as the public body may deem appropriate.
(Added to NRS by 2003, 2025)
NRS 338.168 Federal, state or local assistance. The
public body may take any action necessary to obtain federal, state or local
assistance for a transportation facility that it approves and may enter into
any contracts required to receive such assistance. The public body shall, by
resolution, determine if it serves the public purpose for all or a portion of
the costs of the transportation facility to be paid, directly or indirectly,
from the proceeds of a grant or loan made by the local, state or Federal
Government or any agency or instrumentality thereof.
(Added to NRS by 2003, 2025)
CONTRACTS INVOLVING CONSTRUCTION MANAGERS AT RISK
NRS 338.1685 Declaration of legislative intent. [Effective through June 30,
2017.] The Legislature hereby
declares that the provisions of NRS 338.1685 to 338.16995, inclusive, relating to contracts
involving construction managers at risk, are intended:
1. To promote public confidence and trust
in the contracting and bidding procedures for public works established therein;
2. For the benefit of the public, to
promote the philosophy of obtaining the best possible value as compared to
low-bid contracting; and
3. To better equip public bodies to
address public works that present unique and complex construction challenges.
(Added to NRS by 2013, 2958)
NRS 338.169 Public body authorized to construct public work by selecting and
entering into contracts with construction manager at risk; limitations.
[Effective through June 30, 2017.]
1. Subject to the provisions of subsection
2, a public body may construct a public work by:
(a) Selecting a construction manager at risk
pursuant to the provisions of NRS 338.1691 to 338.1696, inclusive; and
(b) Entering into separate contracts with a
construction manager at risk:
(1) For preconstruction services,
including, without limitation:
(I) Assisting the public body in
determining whether scheduling or constructability problems exist that would
delay the construction of the public work;
(II) Estimating the cost of the
labor and material for the public work; and
(III) Assisting the public body in
determining whether the public work can be constructed within the public body’s
budget; and
(2) To construct the public work.
2. A public body in a county whose
population is less than 100,000 may enter into contracts with a construction
manager at risk pursuant to NRS 338.1685 to 338.16995, inclusive, for the construction of not
more than two public works in a calendar year that are discrete projects.
(Added to NRS by 2007, 2891; A 2009, 437; 2011, 3694;
2013, 2974;
R 2013,
2986, effective July 1, 2017)
NRS 338.1691 Qualifications for construction manager at risk. [Effective
through June 30, 2017.] To qualify
to enter into contracts with a public body for preconstruction services and to
construct a public work, a construction manager at risk must:
1. Not have been found liable for breach
of contract with respect to a previous project, other than a breach for
legitimate cause, during the 5 years immediately preceding the date of the
advertisement for proposals pursuant to NRS 338.1692;
2. Not have been disqualified from being
awarded a contract pursuant to NRS 338.017, 338.13895, 338.1475 or 408.333;
3. Be licensed as a contractor pursuant to
chapter 624 of NRS; and
4. If the project is for the construction
of a public work of the State, be qualified to bid on a public work of the
State pursuant to NRS 338.1379.
(Added to NRS by 2007, 2891; A 2009, 438; 2011, 3694;
R 2013,
2986, effective July 1, 2017)
NRS 338.1692 Advertising for proposals for construction manager at risk;
contents of request for proposals; requirements for proposals. [Effective
through June 30, 2017.]
1. A public body or its authorized
representative shall advertise for proposals for a construction manager at risk
in a newspaper qualified pursuant to chapter 238
of NRS that is published in the county where the public work will be performed.
If no qualified newspaper is published in the county where the public work will
be performed, the required advertisement must be published in some qualified
newspaper that is printed in the State of Nevada and has a general circulation
in the county.
2. A request for proposals published
pursuant to subsection 1 must include, without limitation:
(a) A description of the public work;
(b) An estimate of the cost of construction;
(c) A description of the work that the public
body expects a construction manager at risk to perform;
(d) The dates on which it is anticipated that the
separate phases of the preconstruction and construction of the public work will
begin and end;
(e) The date by which proposals must be submitted
to the public body;
(f) If the project is a public work of the State,
a statement setting forth that the construction manager at risk must be
qualified to bid on a public work of the State pursuant to NRS 338.1379 before submitting a proposal;
(g) The name, title, address and telephone number
of a person employed by the public body that an applicant may contact for
further information regarding the public work;
(h) A list of the selection criteria and relative
weight of the selection criteria that will be used to rank proposals pursuant
to subsection 2 of NRS 338.1693;
(i) A list of the selection criteria and relative
weight of the selection criteria that will be used to rank applicants pursuant
to subsection 7 of NRS 338.1693; and
(j) A notice that the proposed form of the
contract to assist in the preconstruction of the public work or to construct
the public work, including, without limitation, the terms and general
conditions of the contract, is available from the public body.
3. A proposal must include, without
limitation:
(a) An explanation of the experience that the
applicant has with projects of similar size and scope in both the public and
private sectors by any delivery method, whether or not that method was the use
of a construction manager at risk, and including, without limitation,
design-build, design-assist, negotiated work or value-engineered work, and an
explanation of the experience that the applicant has in such projects in
Nevada;
(b) The contact information for references who
have knowledge of the background, character and technical competence of the
applicant;
(c) Evidence of the ability of the applicant to
obtain the necessary bonding for the work to be required by the public body;
(d) Evidence that the applicant has obtained or
has the ability to obtain such insurance as may be required by law;
(e) A statement of whether the applicant has
been:
(1) Found liable for breach of contract
with respect to a previous project, other than a breach for legitimate cause,
during the 5 years immediately preceding the date of the advertisement for
proposals; and
(2) Disqualified from being awarded a
contract pursuant to NRS 338.017, 338.13895, 338.1475 or 408.333;
(f) The professional qualifications and
experience of the applicant, including, without limitation, the resume of any
employee of the applicant who will be managing the preconstruction and
construction of the public work;
(g) The safety programs established and the
safety records accumulated by the applicant;
(h) Evidence that the applicant is licensed as a
contractor pursuant to chapter 624 of NRS;
(i) The proposed plan of the applicant to manage
the preconstruction and construction of the public work which sets forth in
detail the ability of the applicant to provide preconstruction services and to
construct the public work and which includes, if the public work involves
predominantly horizontal construction, a statement that the applicant will
perform construction work equal in value to at least 25 percent of the
estimated cost of construction; and
(j) If the project is for the design of a public
work of the State, evidence that the applicant is qualified to bid on a public
work of the State pursuant to NRS 338.1379.
4. The public body or its authorized
representative shall make available to the public the name of each applicant
who submits a proposal pursuant to this section.
(Added to NRS by 2007, 2891; A 2009, 438; 2011, 3694;
2013, 2974;
R 2013,
2974, effective July 1, 2017)
NRS 338.1693 Procedure for selection of most qualified applicants; minimum
number of proposals required; negotiation of contract for preconstruction
services; availability of certain information to applicants and public.
[Effective through June 30, 2017.]
1. The public body or its authorized
representative shall appoint a panel consisting of at least three but not more
than seven members, a majority of whom must have experience in the construction
industry, to rank the proposals submitted to the public body by evaluating the
proposals as required pursuant to subsections 2 and 3.
2. The panel appointed pursuant to
subsection 1 shall rank the proposals by:
(a) Verifying that each applicant satisfies the
requirements of NRS 338.1691; and
(b) Evaluating and assigning a score to each of
the proposals received by the public body based on the factors and relative
weight assigned to each factor that the public body specified in the request
for proposals.
3. When ranking the proposals, the panel
appointed pursuant to subsection 1 shall assign a relative weight of 5 percent
to the applicant’s possession of a certificate of eligibility to receive a
preference in bidding on public works if the applicant submits a signed
affidavit that meets the requirements of subsection 1 of NRS 338.0117. 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 this
subsection, those provisions of this subsection do not apply insofar as their
application would preclude or reduce federal assistance for that work.
4. After the panel appointed pursuant to
subsection 1 ranks the proposals, the public body or its authorized
representative shall, except as otherwise provided in subsection 8, select at
least the two but not more than the five applicants whose proposals received
the highest scores for interviews.
5. The public body or its authorized
representative may appoint a separate panel to interview and rank the
applicants selected pursuant to subsection 4. If a separate panel is appointed
pursuant to this subsection, the panel must consist of at least three but not
more than seven members, a majority of whom must have experience in the
construction industry.
6. During the interview process, the panel
conducting the interview may require the applicants to submit a preliminary
proposed amount of compensation for managing the preconstruction and
construction of the public work, but in no event shall the proposed amount of
compensation exceed 20 percent of the scoring for the selection of the most
qualified applicant. All presentations made at any interview conducted pursuant
to this subsection or subsection 5 may be made only by key personnel employed
by the applicant, as determined by the applicant, and the employees of the
applicant who will be directly responsible for managing the preconstruction and
construction of the public work.
7. After conducting such interviews, the
panel that conducted the interviews shall rank the applicants by using a
ranking process that is separate from the process used to rank the applicants
pursuant to subsection 2 and is based only on information submitted during the
interview process. The score to be given for the proposed amount of
compensation, if any, must be calculated by dividing the lowest of all the
proposed amounts of compensation by the applicant’s proposed amount of
compensation multiplied by the total possible points available to each
applicant. When ranking the applicants, the panel that conducted the interviews
shall assign a relative weight of 5 percent to the applicant’s possession of a
certificate of eligibility to receive a preference in bidding on public works
if the applicant submits a signed affidavit that meets the requirements of
subsection 1 of NRS 338.0117. 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 this subsection, those provisions of this subsection do not apply
insofar as their application would preclude or reduce federal assistance for
that work.
8. If the public body did not receive at
least two proposals, the public body may not contract with a construction
manager at risk.
9. Upon receipt of the final rankings of
the applicants from the panel that conducted the interviews, the public body or
its authorized representative shall enter into negotiations with the most
qualified applicant determined pursuant to the provisions of this section for a
contract for preconstruction services, unless the public body required the
submission of a proposed amount of compensation, in which case the proposed
amount of compensation submitted by the applicant must be the amount offered
for the contract. If the public body or its authorized representative is unable
to negotiate a contract with the most qualified applicant for an amount of
compensation that the public body or its authorized representative and the most
qualified applicant determine to be fair and reasonable, the public body or its
authorized representative shall terminate negotiations with that applicant. The
public body or its authorized representative may then undertake negotiations
with the next most qualified applicant in sequence until an agreement is
reached and, if the negotiation is undertaken by an authorized representative
of the public body, approved by the public body or until a determination is
made by the public body to reject all applicants.
10. The public body or its authorized
representative shall make available to all applicants and the public the final
rankings of the applicants, as determined by the panel that conducted the
interviews, and shall provide, upon request, an explanation to any unsuccessful
applicant of the reasons why the applicant was unsuccessful.
(Added to NRS by 2007, 2892; A 2009, 439; 2011, 50, 3696; 2013, 2976;
R 2013,
2976, effective July 1, 2017)
NRS 338.16935 Contract between construction manager at risk and subcontractor
for certain preconstruction services. [Effective through June 30, 2017.]
1. Notwithstanding the provisions of NRS 338.16991 and 338.16995,
and subject to the provisions of subsection 2, if a public body enters into a
contract with a construction manager at risk for preconstruction services
pursuant to NRS 338.1693, the construction manager
at risk may enter into a contract with a subcontractor licensed pursuant to chapter 624 of NRS to provide any of the
following preconstruction services, the basis of payment for which is a
negotiated price:
(a) Assisting the construction manager at risk in
identifying and selecting materials and equipment to be provided by each
subcontractor;
(b) Assisting the construction manager at risk in
creating a schedule for the provision of labor, materials or equipment by each
subcontractor;
(c) For the purpose of enabling the construction
manager at risk to establish a budget for the construction of the public work,
estimating the cost of labor, materials or equipment to be provided by each
subcontractor; and
(d) Providing recommendations to the construction
manager at risk regarding the design for the public work, as the design
pertains to the labor, materials or equipment to be provided by each
subcontractor.
2. A subcontractor may not provide
preconstruction services pursuant to this section in an area of work outside
the field or scope of the license of the subcontractor.
(Added to NRS by 2011, 3680;
R 2013,
2986, effective July 1, 2017)
NRS 338.1696 Negotiation of contract for construction of public work or
portion thereof with construction manager at risk; awarding of contract if
public body unable to negotiate satisfactory contract with construction manager
at risk; provision by construction manager at risk of information concerning
public work and subcontractors. [Effective through June 30, 2017.]
1. If a public body enters into a contract
with a construction manager at risk for preconstruction services pursuant to NRS 338.1693, after the public body has finalized the
design for the public work, or any portion thereof sufficient to determine the
provable cost of that portion, the public body shall enter into negotiations
with the construction manager at risk for a contract to construct the public
work or the portion thereof for the public body for:
(a) The cost of the work, plus a fee, with a
guaranteed maximum price;
(b) A fixed price; or
(c) A fixed price plus reimbursement for overhead
and other costs and expenses related to the construction of the public work or
portion thereof.
2. If the public body is unable to
negotiate a satisfactory contract with the construction manager at risk to
construct the public work or portion thereof, the public body shall terminate
negotiations with that applicant and:
(a) May award the contract for the public work:
(1) If the public body is not a local
government, pursuant to the provisions of NRS 338.1377
to 338.139, inclusive.
(2) If the public body is a local
government, pursuant to the provisions of NRS 338.1377
to 338.139, inclusive, or 338.143
to 338.148, inclusive; and
(b) Shall accept a bid to construct the public
work from the construction manager at risk with whom the public body entered
into a contract for preconstruction services.
3. Before entering into a contract with
the public body to construct a public work or a portion thereof pursuant to
subsection 1, the construction manager at risk shall:
(a) Provide the public body with a list of the
labor or portions of the work which are estimated by the construction manager
at risk to exceed 1 percent of the estimated cost of the public work; and
(b) Select each subcontractor who is to provide
labor or a portion of the work which is estimated by the construction manager
at risk to exceed 1 percent of the estimated cost of the public work in
accordance with NRS 338.16991 and 338.16995 and provide the names of each selected
subcontractor to the public body.
4. Except as otherwise provided in
subsection 13 of NRS 338.16995, a public body
shall not interfere with the right of the construction manager at risk to
select the subcontractor whom the construction manager at risk determines to
have submitted the best proposal pursuant to NRS
338.16995.
(Added to NRS by 2007, 2893; A 2009, 440; 2011, 3697;
2013, 2977;
R 2013,
2977, effective July 1, 2017)
NRS 338.1697 Authorized provision in contract with construction manager at
risk for construction of public work or portion thereof for guaranteed maximum
price. [Effective through June 30, 2017.] A
contract entered into pursuant to NRS 338.1696
that is for a guaranteed maximum price may include a provision that authorizes
the construction manager at risk to receive all or part of any difference
between the guaranteed maximum price set forth in the contract and the actual
price of construction of the public work, if the actual price is less than the
guaranteed maximum price.
(Added to NRS by 2007, 2894; R 2013, 2986,
effective July 1, 2017)
NRS 338.1698 Required and authorized provisions in contract for construction
of public work or portion thereof awarded to construction manager at risk.
[Effective through June 30, 2017.] A
contract awarded to a construction manager at risk pursuant to NRS 338.1696:
1. Must comply with the provisions of NRS 338.020 to 338.090,
inclusive.
2. Must specify a date by which
performance of the work required by the contract must be completed.
3. May set forth the terms by which the
construction manager at risk agrees to name the public body, at the cost of the
public body, as an additional insured in an insurance policy held by the
construction manager at risk.
4. Must require that the construction
manager at risk to whom a contract is awarded assume overall responsibility for
ensuring that the preconstruction or construction of the public work, as
applicable, is completed in a satisfactory manner.
5. May include such additional provisions
as may be agreed upon by the public body and the construction manager at risk.
(Added to NRS by 2007, 2894; A 2009, 441; 2011, 3698;
R 2013,
2986, effective July 1, 2017)
NRS 338.16985 Duties and powers of construction manager at risk who enters
into contract for construction of public work or portion thereof. [Effective
through June 30, 2017.] A
construction manager at risk who enters into a contract for the construction of
a public work pursuant to NRS 338.1696:
1. Is responsible for contracting for the
services of any necessary subcontractor, supplier or independent contractor
necessary for the construction of the public work and for the performance of
and payment to any such subcontractors, suppliers or independent contractors.
2. If the public work involves
predominantly horizontal construction, shall perform construction work equal in
value to at least 25 percent of the estimated cost of construction himself or
herself, or using his or her own employees.
3. If the public work involves
predominantly vertical construction, may perform himself or herself or using
his or her own employees as much of the construction of the building or
structure that the construction manager at risk is able to demonstrate that the
construction manager at risk or his or her own employees have performed on
similar projects.
(Added to NRS by 2007, 2894; A 2013, 2978;
R 2013,
2978, effective July 1, 2017)
NRS 338.16991 Contract between construction manager at risk and subcontractor
to provide labor, materials or equipment on project: Eligibility; procedure for
determination of qualification of subcontractor to submit proposal. [Effective
through June 30, 2017.]
1. To be eligible to provide labor,
materials or equipment on a public work, the contract for which a public body
has entered into with a construction manager at risk pursuant to NRS 338.1696, a subcontractor must be:
(a) Licensed pursuant to chapter 624 of NRS; and
(b) Qualified pursuant to the provisions of this
section to submit a proposal for the provision of labor, materials or equipment
on a public work.
2. Subject to the provisions of subsections
3, 4 and 5, the construction manager at risk shall determine whether an
applicant is qualified to submit a proposal for the provision of labor,
materials or equipment on the public work for the purposes of paragraph (b) of
subsection 1.
3. Not earlier than 30 days after a
construction manager at risk has been selected pursuant to NRS 338.1693 and not later than 10 working days
before the date by which an application must be submitted, the construction
manager at risk shall advertise for applications from subcontractors in a
newspaper qualified pursuant to chapter 238
of NRS that is published in the county where the public work will be performed.
If no qualified newspaper is published in the county where the public work will
be performed, the advertisement must be published in some qualified newspaper
that is printed in the State of Nevada and has a general circulation in the county.
The construction manager at risk may accept an application from a subcontractor
before advertising for applications pursuant to this subsection.
4. The criteria to be used by the
construction manager at risk when determining whether an applicant is qualified
to submit a proposal for the provision of labor, materials or equipment must
include, and must be limited to:
(a) The monetary limit placed on the license of
the applicant by the State Contractors’ Board pursuant to NRS 624.220;
(b) The financial ability of the applicant to
provide the labor, materials or equipment required on the public work;
(c) Whether the applicant has the ability to
obtain the necessary bonding for the work required by the public body;
(d) The safety programs established and the
safety records accumulated by the applicant;
(e) Whether the applicant has breached any
contracts with a public body or person in this State or any other state during
the 5 years immediately preceding the application;
(f) 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 public
work;
(g) The performance history of the applicant
concerning other recent, similar public or private contracts, if any, completed
by the applicant in Nevada;
(h) The principal personnel of the applicant;
(i) Whether the applicant has been disqualified
from the award of any contract pursuant to NRS 338.017
or 338.13895; and
(j) The truthfulness and completeness of the
application.
5. The public body or its authorized
representative shall ensure that each determination made pursuant to subsection
2 is made subject to the provisions of subsection 4.
6. The construction manager at risk shall
notify each applicant and the public body in writing of a determination made
pursuant to subsection 2.
7. A determination made pursuant to
subsection 2 that an applicant is not qualified may be appealed pursuant to NRS 338.1381 to the public body with whom the
construction manager at risk has entered into a contract for the construction
of the public work.
(Added to NRS by 2011, 3681;
A 2013,
2979; R 2013,
2979, effective July 1, 2017)
NRS 338.16995 Contract between construction manager at risk and subcontractor
to provide labor, materials or equipment on project: Authority to enter into;
procedure for awarding subcontracts of certain estimated value; substitution of
subcontractor on such subcontracts; availability of certain information to
applicants and public. [Effective through June 30, 2017.]
1. If a public body enters into a contract
with a construction manager at risk for the construction of a public work
pursuant to NRS 338.1696, the construction manager
at risk may enter into a subcontract for the provision of labor, materials and
equipment necessary for the construction of the public work only as provided in
this section.
2. The provisions of this section apply
only to a subcontract for which the estimated value is at least 1 percent of
the total cost of the public work or $50,000, whichever is greater.
3. After the design and schedule for the
construction of the public work is sufficiently detailed and complete to allow
a subcontractor to submit a meaningful and responsive proposal, and not later
than 21 days before the date by which a proposal for the provision of labor,
materials or equipment by a subcontractor must be submitted, the construction
manager at risk shall notify in writing each subcontractor who was determined
pursuant to NRS 338.16991 to be qualified to
submit such a proposal of a request for such proposals. A copy of the notice
required pursuant to this subsection must be provided to the public body.
4. The notice required pursuant to
subsection 3 must include, without limitation:
(a) A description of the design for the public
work and a statement indicating where a copy of the documents relating to that
design may be obtained;
(b) A description of the type and scope of labor,
equipment and materials for which subcontractor proposals are being sought;
(c) The dates on which it is anticipated that
construction of the public work will begin and end;
(d) If a preproposal meeting regarding the scope
of the work to be performed by the subcontractor is to be held, the date, time
and place at which the preproposal meeting will be held;
(e) The date and time by which proposals must be
received, and to whom they must be submitted;
(f) The date, time and place at which proposals
will be opened for evaluation;
(g) A description of the bonding and insurance
requirements for subcontractors;
(h) Any other information reasonably necessary
for a subcontractor to submit a responsive proposal; and
(i) A statement in substantially the following
form:
Notice: For a proposal for a
subcontract on the public work to be considered:
1. The
subcontractor must be licensed pursuant to chapter
624 of NRS;
2. The proposal
must be timely received;
3. If a
preproposal meeting regarding the scope of the work to be performed by the
subcontractor is held, the subcontractor must attend the preproposal meeting;
and
4. The
subcontractor may not modify the proposal after the date and time the proposal
is received.
5. A subcontractor may not modify a
proposal after the date and time the proposal is received.
6. To be considered responsive, a proposal
must:
(a) Be timely received by the construction
manager at risk; and
(b) Substantially and materially conform to the
details and requirements included in the proposal instructions and for the
finalized bid package for the public work, including, without limitation,
details and requirements affecting price and performance.
7. The opening of the proposals must be
attended by an authorized representative of the public body. The public body
may require the architect or engineer responsible for the design of the public
work to attend the opening of the proposals. The opening of the proposals is
not otherwise open to the public.
8. At the time the proposals are opened,
the construction manager at risk shall compile and provide to the public body
or its authorized representative a list that includes, without limitation, the
name and contact information of each subcontractor who submits a timely
proposal.
9. Not more than 10 working days after
opening the proposals and before the construction manager at risk submits a
guaranteed maximum price, a fixed price or a fixed price plus reimbursement
pursuant to NRS 338.1696, the construction manager
at risk shall:
(a) Evaluate the proposals and determine which
proposals are responsive.
(b) Select the subcontractor who submits the proposal
that the construction manager at risk determines is the best proposal. Subject
to the provisions of subparagraphs (1), (2) and (3), if only one subcontractor
submits a proposal, the construction manager at risk may select that
subcontractor. The subcontractor must be selected from among those:
(1) Who attended the preproposal meeting
regarding the scope of the work to be performed by the subcontractor, if such a
preproposal meeting was held;
(2) Who submitted a responsive proposal;
and
(3) Whose names are included on the list
compiled and provided to the public body or its authorized representative
pursuant to subsection 8.
(c) Inform the public body or its authorized
representative which subcontractor has been selected.
10. The public body or its authorized
representative shall ensure that the evaluation of proposals and selection of
subcontractors are done pursuant to the provisions of this section and
regulations adopted by the State Public Works Board.
11. A subcontractor selected pursuant to
subsection 9 need not be selected by the construction manager at risk solely on
the basis of lowest price.
12. Except as otherwise provided in
subsections 13 and 15, the construction manager at risk shall enter into a
subcontract with a subcontractor selected pursuant to subsection 9 to provide
the labor, materials or equipment described in the request for proposals.
13. A construction manager at risk shall
not substitute a subcontractor for any subcontractor selected pursuant to
subsection 9 unless:
(a) The public body or its authorized
representative 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 public
body after the selected subcontractor:
(1) Files for bankruptcy or becomes
insolvent;
(2) After having a reasonable opportunity,
fails or refuses to execute a written contract with the construction manager at
risk which was offered to the selected subcontractor with the same general
terms that all other subcontractors on the project were offered;
(3) Fails or refuses to perform the
subcontract within a reasonable time;
(4) Is unable to furnish a performance
bond and payment bond pursuant to NRS
339.025, if required for the public work; or
(5) Is not properly licensed to provide
that labor or portion of the work.
14. If a construction manager at risk
substitutes a subcontractor for any subcontractor selected pursuant to
subsection 9 without complying with the provisions of subsection 13, the
construction manager at risk shall forfeit, as a penalty to the public body, an
amount equal to 1 percent of the total amount of the contract.
15. If a construction manager at risk does
not select a subcontractor pursuant to subsection 9 to perform a portion of
work on a public work, the construction manager at risk shall notify the public
body that the construction manager at risk intends to perform that portion of
work. If, after providing such notification, the construction manager at risk
substitutes a subcontractor to perform the work, the construction manager at
risk shall forfeit, as a penalty to the public body, the lesser of, and
excluding any amount of the contract that is attributable to change orders:
(a) An amount equal to 2.5 percent of the total
amount of the contract; or
(b) An amount equal to 35 percent of the estimate
by the engineer of the cost of the work the construction manager at risk
selected himself or herself to perform on the public work.
16. The construction manager at risk shall
make available to the public the name of each subcontractor who submits a
proposal.
17. If a public work is being constructed
in phases, and a construction manager at risk selects a subcontractor pursuant
to subsection 9 for the provision of labor, materials or equipment for any
phase of that construction, the construction manager at risk may select that
subcontractor for the provision of labor, materials or equipment for any other
phase of the construction without following the requirements of subsections 3
to 11, inclusive.
18. As used in this section, “general
terms” has the meaning ascribed to it in NRS 338.141.
(Added to NRS by 2011, 3682;
A 2013,
2980; R 2013,
2980, effective July 1, 2017)
CONTRACTS INVOLVING DESIGN-BUILD TEAMS, PRIME CONTRACTORS
OR NONPROFIT ORGANIZATIONS
General Provisions
NRS 338.1711 Contracts for which public body is required or authorized to
enter into with prime contractor or design-build team. [Effective through June
30, 2017.]
1. Except as otherwise provided in this
section and NRS 338.161 to 338.16995,
inclusive, a public body shall contract with a prime contractor for the
construction of a public work for which the estimated cost exceeds $100,000.
2. A public body may contract with a
design-build team for the design and construction of a public work that is a
discrete project if the public body has approved the use of a design-build team
for the design and construction of the public work and the public work has an
estimated cost which exceeds $5,000,000.
(Added to NRS by 1999, 3467; A 2001, 2013, 2022, 2275; 2003, 119, 157, 2025, 2439; 2005, 1808; 2007, 2903; 2011, 3698)
NRS 338.1711 Contracts for which
public body is required or authorized to enter into with prime contractor or
design-build team. [Effective July 1, 2017.]
1. Except as otherwise provided in this
section and NRS 338.161 to 338.168,
inclusive, a public body shall contract with a prime contractor for the
construction of a public work for which the estimated cost exceeds $100,000.
2. A public body may contract with a
design-build team for the design and construction of a public work that is a
discrete project if the public body has approved the use of a design-build team
for the design and construction of the public work and the public work has an
estimated cost which exceeds $5,000,000.
(Added to NRS by 1999, 3467; A 2001, 2013, 2022, 2275; 2003, 119, 157, 2025, 2439; 2005, 1808; 2007, 2903; 2011, 3698;
2013, 2983,
effective July 1, 2017)
NRS 338.1715 Procedure for selecting design-build team. A
public body that contracts with a design-build team pursuant to NRS 338.1711 shall select the design-build team in
accordance with the provisions of NRS 338.1721 to 338.1727, inclusive.
(Added to NRS by 1999, 3469; A 2001, 2022, 2276; 2003, 119, 157, 2441; 2005, 1810)
NRS 338.1717 Employment of architect, general contractor, construction
manager as agent, landscape architect or engineer as consultant. A public body may employ a registered
architect, general contractor, construction manager as agent, landscape
architect or licensed professional engineer as a consultant to assist the
public body in overseeing the construction of a public work. An architect,
general contractor, construction manager as agent, landscape architect or engineer
so employed shall not:
1. Construct the public work; or
2. Assume overall responsibility for
ensuring that the construction of the public work is completed in a
satisfactory manner.
(Added to NRS by 1999, 3472; A 2001, 2022; 2003, 119, 2441; 2007, 2903)
NRS 338.1718 Contract with construction manager as agent.
1. A construction manager as agent:
(a) Must:
(1) Be a contractor licensed pursuant to chapter 624 of NRS;
(2) Hold a certificate of registration to
practice architecture, interior design or residential design pursuant to chapter 623 of NRS; or
(3) Be licensed as a professional engineer
pursuant to chapter 625 of NRS.
(b) May enter into a contract with a public body
to assist in the planning, scheduling and management of the construction of a
public work without assuming any responsibility for the cost, quality or timely
completion of the construction of the public work. A construction manager as
agent who enters into a contract with a public body pursuant to this section
may not:
(1) Take part in the design or
construction of the public work; or
(2) Act as an agent of the public body to
select a subcontractor if the work to be performed by the subcontractor is part
of a larger public work.
2. A contract between a public body and a
construction manager as agent is not required to be awarded by competitive
bidding.
(Added to NRS by 2007, 2895; A 2011, 3698)
Procedures for Awarding Contracts to Design-Build Teams
NRS 338.1721 Qualifications of design-build team. To
qualify to participate in a project for the design and construction of a public
work, a design-build team must:
1. Have the ability to obtain a performance
bond and payment bond as required pursuant to NRS 339.025;
2. Have the ability to obtain insurance
covering general liability and liability for errors and omissions;
3. Not have been found liable for breach
of contract with respect to a previous project, other than a breach for
legitimate cause, during the 5 years immediately preceding the date of the
advertisement for preliminary proposals;
4. Not have been disqualified from being awarded
a contract pursuant to NRS 338.017, 338.13895, 338.1475 or 408.333;
5. Ensure that the members of the
design-build team possess the licenses and certificates required to carry out
the functions of their respective professions within this State; and
6. If the project is for the design and
construction of a public work of the State, ensure that the prime contractor is
qualified to bid on a public work of the State pursuant to NRS 338.1379.
(Added to NRS by 1999, 3470; A 2001, 252, 2022; 2003, 119, 2131; 2005, 1810)
NRS 338.1723 Advertisement for preliminary proposals.
1. A public body shall advertise for
preliminary proposals for the design and construction of a public work by a
design-build team. The advertisement must be published:
(a) In a newspaper qualified pursuant to chapter 238 of NRS that is published in the
county where the public work will be performed at least once and not less than
7 days before the opening of bids; and
(b) On the Internet website of the public body,
if the public body maintains an Internet website, every day for not less than 7
days before the opening of bids.
Ê If no
qualified newspaper is published in the county where the public work will be
performed, the required advertisement must be published in some qualified
newspaper that is printed in the State of Nevada and has a general circulation
in the county.
2. A request for preliminary proposals
published pursuant to subsection 1 must include, without limitation:
(a) A description of the public work to be
designed and constructed;
(b) An estimate of the cost to design and construct
the public work;
(c) The dates on which it is anticipated that the
separate phases of the design and construction of the public work will begin
and end;
(d) The date by which preliminary proposals must
be submitted to the public body;
(e) If the proposal is for a public work of the
State, a statement setting forth that the prime contractor must be qualified to
bid on a public work of the State pursuant to NRS
338.1379 before submitting a preliminary proposal;
(f) A description of the extent to which designs
must be completed for both preliminary and final proposals and any other
requirements for the design and construction of the public work that the public
body determines to be necessary;
(g) A list of the requirements set forth in NRS 338.1721;
(h) A list of the factors and relative weight
assigned to each factor that the public body will use to evaluate design-build
teams who submit a proposal for the public work;
(i) Notice that a design-build team desiring to
submit a proposal for the public work must include with its proposal the
information used by the public body to determine finalists among the
design-build teams submitting proposals pursuant to subsection 2 of NRS 338.1725 and a description of that information;
and
(j) A statement as to whether a design-build team
that is selected as a finalist pursuant to NRS
338.1725 but is not awarded the design-build contract pursuant to NRS 338.1727 will be partially reimbursed for the
cost of preparing a final proposal and, if so, an estimate of the amount of the
partial reimbursement.
(Added to NRS by 1999, 3469; A 2001, 252, 2015, 2022; 2003, 119, 2131, 2441; 2005, 1810; 2011, 1864)
NRS 338.1725 Selection of finalists based on preliminary proposals; minimum
number of proposals required; availability to public of certain information.
1. The public body shall select at least
two but not more than four finalists from among the design-build teams that
submitted preliminary proposals. If the public body does not receive at least
two preliminary proposals from design-build teams that the public body
determines to be qualified pursuant to this section and NRS
338.1721, the public body may not contract with a design-build team for the
design and construction of the public work.
2. The public body shall select finalists
pursuant to subsection 1 by:
(a) Verifying that each design-build team which
submitted a preliminary proposal satisfies the requirements of NRS 338.1721;
(b) Conducting an evaluation of the
qualifications of each design-build team that submitted a preliminary proposal,
including, without limitation, an evaluation of:
(1) The professional qualifications and
experience of the members of the design-build team;
(2) The performance history of the members
of the design-build team concerning other recent, similar projects completed by
those members, if any;
(3) The safety programs established and
the safety records accumulated by the members of the design-build team; and
(4) The proposed plan of the design-build
team to manage the design and construction of the public work that sets forth
in detail the ability of the design-build team to design and construct the
public work; and
(c) Except as otherwise provided in this
paragraph, assigning, without limitation, a relative weight of 5 percent to the
possession of both a certificate of eligibility to receive a preference in
bidding on public works by all contractors on the design-build team and a
certificate of eligibility to receive a preference when competing for public
works by all design professionals on the design-build team. 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 this paragraph relating to a preference in bidding on public
works or a preference when competing for public works, those provisions of this
paragraph do not apply insofar as their application would preclude or reduce
federal assistance for that public work.
3. After the selection of finalists
pursuant to this section, the public body shall make available to the public
the results of the evaluations of preliminary proposals conducted pursuant to
paragraph (b) of subsection 2 and identify which of the finalists, if any,
received an assignment of 5 percent pursuant to paragraph (c) of subsection 2.
(Added to NRS by 1999, 3470; A 2001, 2016, 2022; 2003, 119; 2005, 1811; 2011, 3699)
NRS 338.1727 Request for and submission of final proposals; selection or
rejection of final proposals; awarding of contract; partial reimbursement of
unsuccessful finalists in certain circumstances; contents of contract;
availability to public of certain information.
1. After selecting the finalists pursuant
to NRS 338.1725, the public body shall provide to
each finalist a request for final proposals for the public work. The request
for final proposals must:
(a) Set forth the factors that the public body
will use to select a design-build team to design and construct the public work,
including the relative weight to be assigned to each factor; and
(b) Set forth the date by which final proposals
must be submitted to the public body.
2. If one or more of the finalists
selected pursuant to NRS 338.1725 is disqualified
or withdraws, the public body may select a design-build team from the remaining
finalist or finalists.
3. Except as otherwise provided in this
subsection, in assigning the relative weight to each factor for selecting a
design-build team pursuant to subsection 1, the public body shall assign,
without limitation, a relative weight of 5 percent to the possession of both a
certificate of eligibility to receive a preference in bidding on public works
by all contractors on the design-build team if the contractors submit signed
affidavits that meet the requirements of subsection 1 of NRS 338.0117, and a certificate of eligibility to
receive a preference when competing for public works by all design
professionals on the design-build team, and a relative weight of at least 30
percent to the proposed cost of design and construction of the public work. 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 this subsection relating to a preference in bidding on
public works, or a preference when competing for public works, those provisions
of this subsection do not apply insofar as their application would preclude or
reduce federal assistance for that public work.
4. A final proposal submitted by a
design-build team pursuant to this section must be prepared thoroughly and be
responsive to the criteria that the public body will use to select a
design-build team to design and construct the public work described in
subsection 1. A design-build team that submits a final proposal which is not
responsive shall not be awarded the contract and shall not be eligible for the
partial reimbursement of costs provided for in subsection 7.
5. A final proposal is exempt from the
requirements of NRS 338.141.
6. After receiving and evaluating the
final proposals for the public work, the public body or its authorized
representative shall enter into negotiations with the most qualified applicant,
as determined pursuant to the criteria set forth pursuant to subsections 1 and
3, and award the design-build contract to the design-build team whose proposal
is selected. If the public body or its authorized representative is unable to
negotiate with the most qualified applicant a contract that is determined by
the parties to be fair and reasonable, the public body may terminate
negotiations with that applicant. The public body or its authorized
representative may then undertake negotiations with the next most qualified
applicant in sequence until an agreement is reached and, if the negotiation is
undertaken by an authorized representative of the public body, approved by the
public body or until a determination is made by the public body to reject all
applicants.
7. If a public body selects a final
proposal and awards a design-build contract pursuant to subsection 6, the
public body shall:
(a) Partially reimburse the unsuccessful
finalists if partial reimbursement was provided for in the request for
preliminary proposals pursuant to paragraph (j) of subsection 2 of NRS 338.1723. The amount of reimbursement must not
exceed, for each unsuccessful finalist, 3 percent of the total amount to be
paid to the design-build team as set forth in the design-build contract.
(b) Make available to the public the results of
the evaluation of final proposals that was conducted and the ranking of the
design-build teams who submitted final proposals. The public body shall not
release to a third party, or otherwise make public, financial or proprietary information
submitted by a design-build team.
8. A contract awarded pursuant to this
section:
(a) Must comply with the provisions of NRS 338.020 to 338.090,
inclusive.
(b) Must specify:
(1) An amount that is the maximum amount
that the public body will pay for the performance of all the work required by
the contract, excluding any amount related to costs that may be incurred as a
result of unexpected conditions or occurrences as authorized by the contract;
(2) An amount that is the maximum amount
that the public body will pay for the performance of the professional services
required by the contract; and
(3) A date by which performance of the
work required by the contract must be completed.
(c) May set forth the terms by which the
design-build team agrees to name the public body, at the cost of the public
body, as an additional insured in an insurance policy held by the design-build
team.
(d) Except as otherwise provided in paragraph
(e), must not require the design professional to defend, indemnify or hold
harmless the public body or the employees, officers or agents of that public
body from any liability, damage, loss, claim, action or proceeding caused by
the negligence, errors, omissions, recklessness or intentional misconduct of
the employees, officers and agents of the public body.
(e) May require the design-build team to defend,
indemnify and hold harmless the public body, and the employees, officers and
agents of the public body from any liabilities, damages, losses, claims,
actions or proceedings, including, without limitation, reasonable attorneys’
fees, that are caused by the negligence, errors, omissions, recklessness or
intentional misconduct of the design-build team or the employees or agents of
the design-build team in the performance of the contract.
(f) Must require that the design-build team to
whom a contract is awarded assume overall responsibility for ensuring that the
design and construction of the public work is completed in a satisfactory
manner.
9. Upon award of the design-build
contract, the public body shall make available to the public copies of all
preliminary and final proposals received.
(Added to NRS by 1999, 3471; A 2001, 1272, 2017, 2022; 2003, 33, 119, 2027, 2132, 2442; 2005, 1812; 2011, 51, 3699, 3701)
PREFERENCE WHEN COMPETING FOR PUBLIC WORKS
NRS 338.173 Certificate of eligibility to receive preference when competing
for public works to certain design professionals: Issuance; duration;
ineligibility for submission of false information; regulations; fees; written
objections.
1. The State Board of Architecture,
Interior Design and Residential Design shall issue a certificate of eligibility
to receive a preference when competing for public works to a person who holds a
certificate of registration to engage in the practice of architecture pursuant
to the provisions of chapter 623 of NRS and
submits to the Board an affidavit from a certified public accountant setting
forth that the person has, while holding a certificate of registration to
engage in the practice of architecture in this State:
(a) Paid directly, on his or her own behalf the
excise tax imposed upon an employer by NRS
363B.110 of not less than $1,500 for each consecutive 12-month period for
36 months immediately preceding the submission of the affidavit from the
certified public accountant; or
(b) Acquired, by purchase, inheritance, gift or
transfer through a stock option plan, all the assets and liabilities of a
viable, operating business that engages in the practice of architecture that:
(1) Satisfies the requirements of NRS 623.350; and
(2) Possesses a certificate of eligibility
to receive a preference when competing for public works.
2. The State Board of Landscape
Architecture shall issue a certificate of eligibility to receive a preference
when competing for public works to a person who holds a certificate of
registration to engage in the practice of landscape architecture pursuant to
the provisions of chapter 623A of NRS and
submits to the Board an affidavit from a certified public accountant setting
forth that the person has, while holding a certificate of registration to
engage in the practice of landscape architecture in this State:
(a) Paid directly, on his or her own behalf the
excise tax imposed upon an employer by NRS
363B.110 of not less than $1,500 for each consecutive 12-month period for
36 months immediately preceding the submission of the affidavit from the
certified public accountant; or
(b) Acquired, by purchase, inheritance, gift or
transfer through a stock option plan, all the assets and liabilities of a
viable, operating business that engages in the practice of landscape
architecture that:
(1) Satisfies the requirements of NRS 623A.250; and
(2) Possesses a certificate of eligibility
to receive a preference when competing for public works.
3. The State Board of Professional
Engineers and Land Surveyors shall issue a certificate of eligibility to
receive a preference when competing for public works to a professional engineer
or professional land surveyor who is licensed pursuant to the provisions of chapter 625 of NRS and submits to the Board an
affidavit from a certified public accountant setting forth that the
professional engineer or professional land surveyor has, while licensed as a
professional engineer or professional land surveyor in this State:
(a) Paid directly, on his or her own behalf the
excise tax imposed upon an employer by NRS
363B.110 of not less than $1,500 for each consecutive 12-month period for
36 months immediately preceding the submission of the affidavit from the
certified public accountant; or
(b) Acquired, by purchase, inheritance, gift or
transfer through a stock option plan, all the assets and liabilities of a
viable, operating business that engages in engineering or land surveying that:
(1) Satisfies the requirements of NRS 625.407; and
(2) Possesses a certificate of eligibility
to receive a preference when competing for public works.
4. For the purposes of complying with the
requirements set forth in paragraph (a) of subsection 1, paragraph (a) of
subsection 2 and paragraph (a) of subsection 3, a person shall be deemed to
have paid:
(a) The excise tax imposed upon an employer by NRS 363B.110 by an affiliate or parent
company of the person, if the affiliate or parent company also satisfies the requirements
of NRS 623.350, 623A.250 or 625.407, as applicable; and
(b) The excise tax imposed upon an employer by NRS 363B.110 by a joint venture in which
the person is a participant, in proportion to the amount of interest the person
has in the joint venture.
5. A design professional who has received
a certificate of eligibility to receive a preference when competing for public
works pursuant to subsection 1, 2 or 3 must, at the time for the renewal of his
or her professional license or certificate of registration, as applicable,
pursuant to chapter 623, 623A or 625
of NRS, submit to the applicable licensing board an affidavit from a certified
public accountant setting forth that the design professional has, during the
immediately preceding 12 months, paid the taxes required pursuant to paragraph
(a) of subsection 1, paragraph (a) of subsection 2 or paragraph (a) of
subsection 3, as applicable, to maintain eligibility to hold such a
certificate.
6. A design professional who fails to
submit an affidavit to the applicable licensing board pursuant to subsection 5
ceases to be eligible to receive a preference when competing for public works
unless the design professional reapplies for and receives a certificate of
eligibility pursuant to subsection 1, 2 or 3, as applicable.
7. If a design professional holds more than
one license or certificate of registration, the design professional must submit
a separate application for each license or certificate of registration pursuant
to which the design professional wishes to qualify for a preference when
competing for public works. Upon issuance, the certificate of eligibility to
receive a preference when competing for public works becomes part of the design
professional’s license or certificate of registration for which the design
professional submitted the application.
8. If a design professional who applies to
a licensing board for a certificate of eligibility to receive a preference when
competing for public works pursuant to subsection 1, 2 or 3 submits false
information to the licensing board regarding the required payment of taxes, the
design professional is not eligible to receive a preference when competing for
public works for a period of 5 years after the date on which the licensing
board becomes aware of the submission of the false information.
9. The State Board of Architecture,
Interior Design and Residential Design, the State Board of Landscape
Architecture and the State Board of Professional Engineers and Land Surveyors
shall adopt regulations and may assess reasonable fees relating to their
respective certification of design professionals for a preference when
competing for public works.
10. A person or entity who believes that a
design professional wrongfully holds a certificate of eligibility to receive a
preference when competing for public works may challenge the validity of the
certificate by filing a written objection with the public body which selected,
for the purpose of providing services for a public work, the design
professional who holds the certificate. 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 design professional
wrongfully holds a certificate of eligibility to receive a preference when
competing for public works; and
(b) Be filed with the public body not later than
3 business days after:
(1) The date on which the public body
makes available to the public pursuant to subsection 3 of NRS 338.1725 the information required by that
subsection, if the design-build team of which the design professional who holds
the certificate is a part was selected as a finalist pursuant to NRS 338.1725;
(2) The date on which the Department of
Transportation makes available to the public pursuant to subsection 3 of NRS 408.3885 the information required by
that subsection, if the design-build team of which the design professional who
holds the certificate is a part was selected as a finalist pursuant to NRS 408.3885; or
(3) The date on which the licensing board
which issued the certificate to the design professional posted on its Internet
website the information required by NRS 338.1425,
if the design professional is identified in that information as being selected
for a contract governed by NRS 338.155.
11. If a public body receives a written
objection pursuant to subsection 10, 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 the public body or
its authorized representative 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
design professional qualifies for the certificate pursuant to the provisions of
this section and the public body or its authorized representative may proceed
to award the contract accordingly.
(Added to NRS by 2011, 3678)
NOTIFICATION OF LICENSING BOARDS
NRS 338.175 Substantially incomplete or rejected plans submitted by
registered architect, interior designer, residential designer or landscape
architect. A public body shall
notify the State Board of Architecture, Interior Design and Residential Design
or the State Board of Landscape Architecture, as applicable, in writing if a
registered architect, interior designer, residential designer or landscape
architect:
1. Submits plans for a project which are
substantially incomplete; or
2. Submits plans for the same project
which are rejected by the public body at least three times.
(Added to NRS by 1997, 1409; A 2003, 2444)
NRS 338.176 Substantially incomplete or rejected plans submitted by licensed
professional engineer or land surveyor. A
public body shall notify the State Board of Professional Engineers and Land
Surveyors in writing if a licensed professional engineer or land surveyor:
1. Submits plans that are substantially
incomplete; or
2. Submits plans for the same public work
that are rejected by the public body at least three times.
(Added to NRS by 1997, 156)
DESIGN, CONSTRUCTION, RENOVATION AND DEMOLITION OF PUBLIC
WORKS
General Provisions
NRS 338.177 Lease of property acquired by local government for public work
pending completion of public work.
1. Real property acquired by a governing
body for a public work may be leased, pending the completion of the public work
but for not more than 5 years, upon such terms and conditions as the governing
body prescribes.
2. The governing body shall:
(a) Adopt the procedures for entering into such a
lease at a public hearing held thereon; and
(b) Offer to lease the property to the person
from whom it was acquired before offering to lease the property to any other
person.
3. Except as otherwise provided in this
subsection, revenue from the lease must be used to maintain the property in
order to mitigate any adverse effect upon the adjacent area. Any revenue from
the lease that is not needed to maintain the property must be used to offset
the cost of the public work for which the property was acquired.
(Added to NRS by 1995, 156; A 2003, 2444)
NRS 338.180 Accommodation of persons with physical handicap or disability;
verification of conformity with requirements; enforcement.
1. The Legislature of the State of Nevada
declares that:
(a) The primary purpose of this section is to
provide, subject to the limitations set forth in this section, for the removal
and elimination of architectural barriers to persons with a physical handicap
in public buildings and facilities designed after July 1, 1973, in order to
encourage and facilitate the employment of persons with a physical handicap and
to make public buildings accessible to and usable by persons with a physical
handicap; and
(b) It is the intent of the Legislature that
insofar as possible all buildings and facilities used by the public be
accessible to, and functional for, persons with a physical handicap, without
loss of function, space or facility where the general public is concerned.
2. All plans and specifications for the
construction of public buildings and facilities owned by a public body must,
after July 1, 1973, provide facilities and features for persons with a physical
handicap so that buildings which are normally used by the public are
constructed with entrance ramps, toilet facilities, drinking fountains, doors
and public telephones accessible to and usable by persons with a physical
handicap. In addition, all plans and specifications for the construction or
alteration of public buildings and facilities owned by a public body must
comply with the applicable requirements of the:
(a) Americans with Disabilities Act of 1990, 42
U.S.C. §§ 12101 et seq., and the regulations adopted pursuant thereto,
including, without limitation, the Americans with Disabilities Act
Accessibility Guidelines for Buildings and Facilities set forth in Appendix A
of Part 36 of Title 28 of the Code of Federal Regulations;
(b) Minimum Guidelines and Requirements for
Accessible Design, 36 C.F.R. §§ 1190.1 et seq.; and
(c) Fair Housing Act, 42 U.S.C. § 3604, and the
regulations adopted pursuant thereto.
Ê The
requirements of paragraph (a) of this subsection are not satisfied if the plans
and specifications comply solely with the Uniform Federal Accessibility
Standards set forth in Appendix A of Part 101-19.6 of Title 41 of the Code of
Federal Regulations.
3. All public bodies shall, in the design,
construction and alteration of public buildings and facilities comply with the
applicable requirements of the:
(a) Americans with Disabilities Act of 1990, 42
U.S.C. §§ 12101 et seq., and the regulations adopted pursuant thereto,
including, without limitation, the Americans with Disabilities Act
Accessibility Guidelines for Buildings and Facilities set forth in Appendix A
of Part 36 of Title 28 of the Code of Federal Regulations;
(b) Minimum Guidelines and Requirements for
Accessible Design, 36 C.F.R. §§ 1190.1 et seq.; and
(c) Fair Housing Act, 42 U.S.C. § 3604, and the
regulations adopted pursuant thereto.
Ê The
requirements of paragraph (a) of this subsection are not satisfied if the
public body complies solely with the Uniform Federal Accessibility Standards
set forth in Appendix A of Part 101-19.6 of Title 41 of the Code of Federal
Regulations.
4. In each public building and facility
owned by a public body, each entrance to a corridor which leads to a toilet
facility must be marked with a sign which:
(a) Conforms to the requirements related to
signage contained in §§ 4.30 et seq. of the Americans with Disabilities Act
Accessibility Guidelines for Buildings and Facilities set forth in Appendix A
of Part 36 of Title 28 of the Code of Federal Regulations; and
(b) Uses symbols, raised letters and Braille to:
(1) Identify the toilet facility and the
gender of persons who may use the toilet facility; and
(2) If the toilet facility is for the
exclusive use of persons of one gender:
(I) Indicate that the toilet
facility is for the exclusive use of persons of that gender; and
(II) Provide direction to a toilet
facility that may be used by persons of the other gender.
5. The Division shall verify that all
public buildings and facilities owned by the State of Nevada conform with the
requirements of this section. Each political subdivision shall verify that all
public buildings and facilities owned by the political subdivision conform with
the requirements of this section.
6. A person may report a violation of this
section to the Attorney General.
7. Upon receiving a report pursuant to
subsection 6, the Attorney General shall notify the public body responsible for
the alleged violation. Not later than 30 days after receiving such a
notification, the public body shall:
(a) Present evidence to the Attorney General that
it is in compliance with this section; or
(b) Begin any action necessary to comply with the
requirements of this section and notify the Attorney General of the date on
which it will be in compliance with those requirements.
8. If the public body responsible for the
alleged violation fails to comply with this section, the Attorney General shall
take such action as is necessary to ensure compliance with this section,
including, without limitation, commencing proceedings in a court of competent
jurisdiction, if appropriate.
(Added to NRS by 1973, 394; A 1975, 155; 1985, 42, 274; 1999, 2852; 2001, 704; 2003, 2444)
NRS 338.185 Public body to reimburse contractor for certain costs of
locating underground facility of public utility. If
a public body directs a contractor to locate the facility of a public utility
placed underground on the site of a public work, the public body shall
reimburse the contractor for the difference between the costs incurred in
finding the actual location of the facility and the costs of finding the
reputed location of the facility.
(Added to NRS by 1987, 1042)
Energy and Environmental Design Requirements
NRS 338.1905 Retrofitting of state buildings for energy efficiency:
Appointment of energy retrofit coordinators and person to assist coordinators. Expired
by limitation. (See chapter 293, Statutes of Nevada 1995, at page 576.)
NRS 338.1906 Retrofitting of state buildings for energy efficiency: Duties of
energy retrofit coordinators and State Board of Examiners; procedures for
requesting and approving proposals; limitation on money committed beyond
biennium; restrictions on approval of change orders to executed contracts;
projects exempt from certain procedural requirements. Expired
by limitation. (See chapter 293, Statutes of Nevada 1995, at page 576.)
NRS 338.1907 Retrofitting of local governmental buildings for energy
efficiency: Duties of energy retrofit coordinators and local governments;
procedures for requesting and approving proposals; restrictions on approval of
change orders to executed contracts; projects exempt from certain procedural
requirements. Expired by limitation. (See chapter 293,
Statutes of Nevada 1995, at page 576.)
NRS 338.1908 Retrofitting of local governmental buildings, facilities and
structures with consideration of use of sources of renewable energy. [Effective
through June 30, 2017.]
1. The governing body of each local
government shall, by July 28, 2009, develop a plan to retrofit public buildings,
facilities and structures, including, without limitation, traffic-control
systems, and to otherwise use sources of renewable energy to serve those
buildings, facilities and structures. Such a plan must:
(a) Include a list of specific projects. The projects
must be prioritized and selected on the basis of the following criteria:
(1) The length of time necessary to
commence the project.
(2) The number of workers estimated to be
employed on the project.
(3) The effectiveness of the project in
reducing energy consumption.
(4) The estimated cost of the project.
(5) Whether the project is able to be
powered by or otherwise use sources of renewable energy.
(6) Whether the project has qualified for
participation in one or more of the following programs:
(I) The Solar Energy Systems
Incentive Program created by NRS 701B.240;
(II) The Renewable Energy School
Pilot Program created by NRS 701B.350;
(III) The Wind Energy Systems
Demonstration Program created by NRS
701B.580; or
(IV) The Waterpower Energy Systems
Demonstration Program created by NRS
701B.820.
(b) Include a list of potential funding sources
for use in implementing the projects, including, without limitation, money
available through the Energy Efficiency and Conservation Block Grant Program as
set forth in 42 U.S.C. § 17152 and grants, gifts, donations or other sources of
money from public and private sources.
2. The governing body of each local
government shall transmit the plan developed pursuant to subsection 1 to the
Director of the Office of Energy and to any other entity designated for that
purpose by the Legislature.
3. As used in this section:
(a) “Local government” means each city or county
that meets the definition of “eligible unit of local government” as set forth
in 42 U.S.C. § 17151 and each unit of local government, as defined in
subsection 13 of NRS 338.010, that does not meet
the definition of “eligible entity” as set forth in 42 U.S.C. § 17151.
(b) “Renewable energy” means a source of energy
that occurs naturally or is regenerated naturally, including, without
limitation:
(1) Biomass;
(2) Fuel cells;
(3) Geothermal energy;
(4) Solar energy;
(5) Waterpower; and
(6) Wind.
Ê The term
does not include coal, natural gas, oil, propane or any other fossil fuel, or
nuclear energy.
(c) “Retrofit” means to alter, improve, modify,
remodel or renovate a building, facility or structure to make that building,
facility or structure more energy-efficient.
(Added to NRS by 2009, 1406;
A 2011, 93,
1944, 2079, 2563, 2964; 2013, 2983,
3815, 3818)
NRS 338.1908 Retrofitting of local
governmental buildings, facilities and structures with consideration of use of
sources of renewable energy. [Effective July 1, 2017, through December 31,
2025.]
1. The governing body of each local
government shall, by July 28, 2009, develop a plan to retrofit public
buildings, facilities and structures, including, without limitation,
traffic-control systems, and to otherwise use sources of renewable energy to
serve those buildings, facilities and structures. Such a plan must:
(a) Include a list of specific projects. The
projects must be prioritized and selected on the basis of the following
criteria:
(1) The length of time necessary to
commence the project.
(2) The number of workers estimated to be
employed on the project.
(3) The effectiveness of the project in
reducing energy consumption.
(4) The estimated cost of the project.
(5) Whether the project is able to be
powered by or otherwise use sources of renewable energy.
(6) Whether the project has qualified for
participation in one or more of the following programs:
(I) The Solar Energy Systems
Incentive Program created by NRS 701B.240;
(II) The Renewable Energy School
Pilot Program created by NRS 701B.350;
(III) The Wind Energy Systems
Demonstration Program created by NRS
701B.580; or
(IV) The Waterpower Energy Systems
Demonstration Program created by NRS
701B.820.
(b) Include a list of potential funding sources
for use in implementing the projects, including, without limitation, money
available through the Energy Efficiency and Conservation Block Grant Program as
set forth in 42 U.S.C. § 17152 and grants, gifts, donations or other sources of
money from public and private sources.
2. The governing body of each local
government shall transmit the plan developed pursuant to subsection 1 to the
Director of the Office of Energy and to any other entity designated for that
purpose by the Legislature.
3. As used in this section:
(a) “Local government” means each city or county
that meets the definition of “eligible unit of local government” as set forth
in 42 U.S.C. § 17151 and each unit of local government, as defined in
subsection 12 of NRS 338.010, that does not meet
the definition of “eligible entity” as set forth in 42 U.S.C. § 17151.
(b) “Renewable energy” means a source of energy
that occurs naturally or is regenerated naturally, including, without
limitation:
(1) Biomass;
(2) Fuel cells;
(3) Geothermal energy;
(4) Solar energy;
(5) Waterpower; and
(6) Wind.
Ê The term
does not include coal, natural gas, oil, propane or any other fossil fuel, or
nuclear energy.
(c) “Retrofit” means to alter, improve, modify,
remodel or renovate a building, facility or structure to make that building,
facility or structure more energy-efficient.
(Added to NRS by 2009, 1406;
A 2011, 93,
1944, 2079, 2563, 2964; 2013, 2983,
2984, 3815, 3818,
effective July 1, 2017)
NRS 338.1908 Retrofitting of local
governmental buildings, facilities and structures with consideration of use of
sources of renewable energy. [Effective January 1, 2026.]
1. The governing body of each local
government shall, by July 28, 2009, develop a plan to retrofit public
buildings, facilities and structures, including, without limitation,
traffic-control systems, and to otherwise use sources of renewable energy to
serve those buildings, facilities and structures. Such a plan must:
(a) Include a list of specific projects. The
projects must be prioritized and selected on the basis of the following
criteria:
(1) The length of time necessary to
commence the project.
(2) The number of workers estimated to be
employed on the project.
(3) The effectiveness of the project in
reducing energy consumption.
(4) The estimated cost of the project.
(5) Whether the project is able to be
powered by or otherwise use sources of renewable energy.
(6) Whether the project has qualified for
participation in the Renewable Energy School Pilot Program created by NRS 701B.350.
(b) Include a list of potential funding sources
for use in implementing the projects, including, without limitation, money
available through the Energy Efficiency and Conservation Block Grant Program as
set forth in 42 U.S.C. § 17152 and grants, gifts, donations or other sources of
money from public and private sources.
2. The governing body of each local
government shall transmit the plan developed pursuant to subsection 1 to the
Director of the Office of Energy and to any other entity designated for that
purpose by the Legislature.
3. As used in this section:
(a) “Local government” means each city or county
that meets the definition of “eligible unit of local government” as set forth
in 42 U.S.C. § 17151 and each unit of local government, as defined in
subsection 12 of NRS 338.010, that does not meet
the definition of “eligible entity” as set forth in 42 U.S.C. § 17151.
(b) “Renewable energy” means a source of energy
that occurs naturally or is regenerated naturally, including, without
limitation:
(1) Biomass;
(2) Fuel cells;
(3) Geothermal energy;
(4) Solar energy;
(5) Waterpower; and
(6) Wind.
Ê The term
does not include coal, natural gas, oil, propane or any other fossil fuel, or
nuclear energy.
(c) “Retrofit” means to alter, improve, modify,
remodel or renovate a building, facility or structure to make that building,
facility or structure more energy-efficient.
(Added to NRS by 2009, 1406;
A 2011, 93,
1944, 2079, 2561, 2563, 2964; 2013, 2983,
2984, 3347, 3815, 3818,
effective January 1, 2026)
Additional Conditions and Limitations
NRS 338.193 Standards for plumbing fixtures.
1. Each public building sponsored or
financed by a public body must meet the standards made applicable for the
building pursuant to this section.
2. Except as otherwise provided in
subsections 3 and 4, each public building, other than a prison or jail, on
which construction begins on or after March 1, 1992, and each existing public
building which is expanded or renovated on or after March 1, 1992, must
incorporate the following minimal standards for plumbing fixtures:
(a) A toilet which uses water must not be
installed unless its consumption of water does not exceed 3.5 gallons of water
per flush.
(b) A shower apparatus which uses more than 3
gallons of water per minute must not be installed unless it is equipped with a
device to reduce water consumption to 3 gallons of water or less per minute.
(c) Each faucet installed in a lavatory or
kitchen must not allow water to flow at a rate greater than 3 gallons per
minute.
(d) A toilet or urinal which employs a timing
device or other mechanism to flush periodically irrespective of demand must not
be installed.
3. Except as otherwise provided in
subsection 4, each public building, other than a prison or jail, on which
construction begins on or after March 1, 1993, and each existing public
building which is expanded or renovated on or after March 1, 1993, must
incorporate the following minimal standards for plumbing fixtures:
(a) A toilet which uses water must not be
installed unless its consumption of water does not exceed 1.6 gallons of water
per flush.
(b) A shower apparatus which uses more than 2.5
gallons of water per minute must not be installed unless it is equipped with a
device to reduce water consumption to 2.5 gallons of water or less per minute.
(c) A urinal which uses water must not be
installed unless its consumption of water does not exceed 1 gallon of water per
flush.
(d) A toilet or urinal which employs a timing
device or other mechanism to flush periodically, irrespective of demand, must
not be installed.
(e) A urinal which continually flows or flushes
water must not be installed.
(f) Each faucet installed in a lavatory or
kitchen must not allow water to flow at a rate greater than 2.5 gallons per
minute.
(g) Each faucet installed in a public restroom
must contain a mechanism which closes the faucet automatically after a
predetermined amount of water has flowed through the faucet. Multiple faucets
that are activated from a single point must not be installed.
4. The requirements of this section for
the installation of certain plumbing fixtures do not apply to any portion of an
existing public building which is not being expanded or renovated.
(Added to NRS by 1991, 1168)
NRS 338.195 Survey for presence of asbestos required before renovation or
demolition of public building.
1. No public building or other public
structure may be renovated or demolished until a survey of the building or
structure has been made for the presence of asbestos or material containing
asbestos.
2. As used in this section, “material
containing asbestos” has the meaning ascribed to it by the Division of
Industrial Relations of the Department of Business and Industry pursuant to NRS 618.765.
(Added to NRS by 1989, 1280; A 1993, 1567)
NRS 338.200 Prohibition against naming public building or structure after
member of governing body. No
public building or other public structure, other than a street or road, may be
named after a person who is at the time a member of the governing body which
has jurisdiction or control over the building or structure or which is
responsible for it.
(Added to NRS by 1981, 1337)
PROGRESS PAYMENTS
General Provisions
NRS 338.400 Definitions. As
used in NRS 338.400 to 338.645,
inclusive, unless the context otherwise requires, the words and terms defined
in NRS 338.415 to 338.435,
inclusive, have the meanings ascribed to them in those sections.
(Added to NRS by 1999, 1983; A 2005, 1814)
NRS 338.415 “Progress bill” defined. “Progress
bill” means a bill for a portion of the supplies, work performed or services
provided by a contractor, subcontractor or supplier for a public work.
(Added to NRS by 1999, 1983)
NRS 338.420 “Progress payment” defined. “Progress
payment” means the payment for a portion of the supplies, work performed or
services provided by a contractor, subcontractor or supplier for a public work.
(Added to NRS by 1999, 1983)
NRS 338.425 “Retainage” defined. “Retainage”
means the amount authorized to be withheld from a progress payment pursuant to
the provisions of NRS 338.515, 338.555 or 338.595.
(Added to NRS by 1999, 1983)
NRS 338.430 “Retainage bill” defined. “Retainage
bill” means a bill for the amount authorized to be withheld from a progress
payment pursuant to the provisions of NRS 338.515, 338.555 or 338.595.
(Added to NRS by 1999, 1983)
NRS 338.435 “Retainage payment” defined. “Retainage
payment” means the payment of the amount authorized to be withheld from a
progress payment pursuant to the provisions of NRS
338.515, 338.555 or 338.595.
(Added to NRS by 1999, 1983)
NRS 338.455 Methods to be used for providing notice. Each notice required pursuant to NRS 338.400 to 338.645,
inclusive, must be:
1. Delivered personally; or
2. Sent by facsimile machine and delivered
by regular or certified mail.
(Added to NRS by 1999, 1990)
NRS 338.460 Dates to be used for calculating accrual of interest on
retainage. Interest that is
required to be paid on the retainage accrues from the date the retainage is
withheld until the date the retainage is paid to the person from whom the
retainage was withheld.
(Added to NRS by 1999, 1984)
Applicability and Limitations
NRS 338.480 Provisions inapplicable to certain contracts made by Department
of Transportation. The provisions
of NRS 338.400 to 338.645,
inclusive, do not apply to a contract entered into by the Department of
Transportation pursuant to chapter 408 of
NRS.
(Added to NRS by 1999, 1984)
NRS 338.485 Waiver or modification of right, obligation or liability set
forth in NRS 338.400 to 338.645,
inclusive, prohibited; certain conditions, stipulations or provisions of
contract void and unenforceable.
1. A person may not waive or modify a
right, obligation or liability set forth in the provisions of NRS 338.400 to 338.645,
inclusive.
2. A condition, stipulation or provision
in a contract or other agreement that:
(a) Requires a person to waive a right set forth
in the provisions of NRS 338.400 to 338.645, inclusive;
(b) Relieves a person of an obligation or
liability imposed by the provisions of NRS 338.400
to 338.645, inclusive;
(c) Requires a contractor to waive, release or
extinguish a claim or right for damages or an extension of time that the
contractor may otherwise possess or acquire as a result of a delay that is:
(1) So unreasonable in length as to amount
to an abandonment of the public work;
(2) Caused by fraud, misrepresentation,
concealment or other bad faith by the public body;
(3) Caused by active interference by the
public body; or
(4) Caused by a decision by the public
body to significantly add to the scope or duration of the public work; or
(d) Requires a contractor or public body to be
responsible for any consequential damages suffered or incurred by the other
party that arise from or relate to a contract for a public work, including,
without limitation, rental expenses or other damages resulting from a loss of
use or availability of the public work, lost income, lost profit, lost
financing or opportunity, business or reputation, and loss of management or
employee availability, productivity, opportunity or services,
Ê is against
public policy and is void and unenforceable.
3. The provisions of subsection 2 do not
prohibit the use of a liquidated damages clause which otherwise satisfies the
requirements of law.
(Added to NRS by 1999, 1990; A 2011, 3703)
NRS 338.490 Limitations on requiring release or waiver of right to receive
progress payment or retainage payment. Any
release or waiver required to be provided by a contractor, subcontractor or
supplier to receive a progress payment or retainage payment must be:
1. Conditional for the purpose of
receiving payment and shall be deemed to become unconditional upon the receipt
of the money due to the contractor, subcontractor or supplier; and
2. Limited to claims related to the
invoiced amount of the labor, materials, equipment or supplies that are the
subject of the progress bill or retainage bill.
(Added to NRS by 1999, 1989)
Payments Made by Public Body to Contractor
NRS 338.510 Submittal of progress bills. A
contractor shall submit a progress bill to the public body monthly or more
frequently if the provisions of the contract so provide.
(Added to NRS by 1999, 1984)
NRS 338.515 Time for making payments; amounts paid; amounts withheld as
retainage; rate of interest paid on amounts withheld; powers of Labor
Commissioner when worker is owed wages. [Effective through June 30, 2015.]
1. Except as otherwise provided in NRS 338.525, a public body and its officers or agents
awarding a contract for a public work shall pay or cause to be paid to a
contractor the progress payments due under the contract within 30 days after
the date the public body receives the progress bill or within a shorter period
if the provisions of the contract so provide. Not more than 95 percent of the
amount of any progress payment may be paid until 50 percent of the work
required by the contract has been performed.
2. After 50 percent of the work required
by the contract has been performed, the public body may pay to the contractor:
(a) Any of the remaining progress payments
without withholding additional retainage; and
(b) Any amount of any retainage that was withheld
from progress payments pursuant to subsection 1,
Ê if, in the
opinion of the public body, satisfactory progress is being made in the work.
3. After determining in accordance with
subsection 2 whether satisfactory progress is being made in the work, the
public body may pay to the contractor an amount of any retainage that was
withheld from progress payments pursuant to subsection 1 if:
(a) A subcontractor has performed a portion of
the work;
(b) The public body determines that the portion
of the work has been completed in compliance with all applicable plans and
specifications;
(c) The subcontractor submits to the contractor:
(1) A release of the subcontractor’s claim
for a mechanic’s lien for the portion of the work; and
(2) From each of the subcontractor’s
subcontractors and suppliers who performed work or provided material for the
portion of the work, a release of his or her claim for a mechanic’s lien for
the portion of the work; and
(d) The amount of the retainage which the public
body pays is in proportion to the portion of the work which the subcontractor
has performed.
4. If, after determining in accordance
with subsection 2 whether satisfactory progress is being made in the work, the
public body continues to withhold retainage from remaining progress payments:
(a) If the public body does not withhold any
amount pursuant to NRS 338.525:
(1) The public body may not withhold more
than 2.5 percent of the amount of any progress payment; and
(2) Before withholding any amount pursuant
to subparagraph (1), the public body must pay to the contractor 50 percent of
the amount of any retainage that was withheld from progress payments pursuant
to subsection 1; or
(b) If the public body withholds any amount
pursuant to NRS 338.525:
(1) The public body may not withhold more
than 5 percent of the amount of any progress payment; and
(2) The public body may continue to retain
the amount of any retainage that was withheld from progress payments pursuant
to subsection 1.
5. Except as otherwise provided in NRS 338.525, a public body shall identify in the
contract and pay or cause to be paid to a contractor the actual cost of the
supplies, materials and equipment that:
(a) Are identified in the contract;
(b) Have been delivered and stored at a location,
and in the time and manner, specified in a contract by the contractor or a
subcontractor or supplier for use in a public work; and
(c) Are in short supply or were specially made
for the public work,
Ê within 30
days after the public body receives a progress bill from the contractor for
those supplies, materials or equipment.
6. A public body shall pay or cause to be
paid to the contractor at the end of each quarter interest for the quarter on
any amount withheld by the public body pursuant to NRS
338.400 to 338.645, inclusive, at a rate equal
to the rate quoted by at least three insured banks, credit unions or savings
and loan associations in this State as the highest rate paid on a certificate
of deposit whose duration is approximately 90 days on the first day of the
quarter. If the amount due to a contractor pursuant to this subsection for any
quarter is less than $500, the public body may hold the interest until:
(a) The end of a subsequent quarter after which
the amount of interest due is $500 or more;
(b) The end of the fourth consecutive quarter for
which no interest has been paid to the contractor; or
(c) The amount withheld under the contract is due
pursuant to NRS 338.520,
Ê whichever
occurs first.
7. If the Labor Commissioner has reason to
believe that a worker is owed wages by a contractor or subcontractor, the Labor
Commissioner may require the public body to withhold from any payment due the
contractor under this section and pay the Labor Commissioner instead, an amount
equal to the amount the Labor Commissioner believes the contractor owes to the
worker. This amount must be paid by the Labor Commissioner to the worker if the
matter is resolved in the worker’s favor, otherwise it must be returned to the
public body for payment to the contractor.
(Added to NRS by 1973, 1159; A 1977, 1035; 1981, 552; 1983, 1591; 1985, 491; 1999, 1992; 2003, 799, 2448; 2007, 2512; 2011, 1619)
NRS 338.515 Time for making payments;
amounts paid; amounts withheld as retainage; rate of interest paid on amounts
withheld; powers of Labor Commissioner when worker is owed wages. [Effective
July 1, 2015.]
1. Except as otherwise provided in NRS 338.525, a public body and its officers or agents
awarding a contract for a public work shall pay or cause to be paid to a
contractor the progress payments due under the contract within 30 days after
the date the public body receives the progress bill or within a shorter period
if the provisions of the contract so provide. Not more than 90 percent of the
amount of any progress payment may be paid 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.
2. Except as otherwise provided in NRS 338.525, a public body shall identify in the
contract and pay or cause to be paid to a contractor the actual cost of the
supplies, materials and equipment that:
(a) Are identified in the contract;
(b) Have been delivered and stored at a location,
and in the time and manner, specified in a contract by the contractor or a
subcontractor or supplier for use in a public work; and
(c) Are in short supply or were specially made
for the public work,
Ê within 30
days after the public body receives a progress bill from the contractor for
those supplies, materials or equipment.
3. A public body shall pay or cause to be
paid to the contractor at the end of each quarter interest for the quarter on
any amount withheld by the public body pursuant to NRS
338.400 to 338.645, inclusive, at a rate equal
to the rate quoted by at least three insured banks, credit unions or savings
and loan associations in this State as the highest rate paid on a certificate
of deposit whose duration is approximately 90 days on the first day of the
quarter. If the amount due to a contractor pursuant to this subsection for any
quarter is less than $500, the public body may hold the interest until:
(a) The end of a subsequent quarter after which
the amount of interest due is $500 or more;
(b) The end of the fourth consecutive quarter for
which no interest has been paid to the contractor; or
(c) The amount withheld under the contract is due
pursuant to NRS 338.520,
Ê whichever
occurs first.
4. If the Labor Commissioner has reason to
believe that a worker is owed wages by a contractor or subcontractor, the Labor
Commissioner may require the public body to withhold from any payment due the
contractor under this section and pay the Labor Commissioner instead, an amount
equal to the amount the Labor Commissioner believes the contractor owes to the
worker. This amount must be paid by the Labor Commissioner to the worker if the
matter is resolved in the worker’s favor, otherwise it must be returned to the
public body for payment to the contractor.
(Added to NRS by 1973, 1159; A 1977, 1035; 1981, 552; 1983, 1591; 1985, 491; 1999, 1992; 2003, 799, 2448; 2007, 2512; 2011, 1619,
effective July 1, 2015)
NRS 338.520 Payment of outstanding balance upon occupancy, use or recording
of notice of completion. Except
with respect to any payment withheld pursuant to NRS
338.525, if:
1. A public body or a person acting with
the authority of the public body occupies or begins use of a public work or a
portion of a public work;
2. A notice of completion for a public
work or a portion of a public work is recorded as provided in NRS 108.228; or
3. A public body partially occupies one or
more buildings of a public work,
Ê the public
body shall pay or cause to be paid to the contractor any outstanding payment
due, including, without limitation, retainage, and any interest accrued thereon
within 30 days after whichever event described in subsection 1, 2 or 3 occurs
first. The amount paid must be in the proportion that the value of the portion
of the public work which is used or occupied bears to the total value of the
public work.
(Added to NRS by 1999, 1984)
NRS 338.525 Withholding amounts for failure of contractor to comply with
contract or applicable building code, law or regulation; payment of amounts
withheld upon confirmation of correction of condition. [Effective through June
30, 2015.]
1. Except as otherwise provided in NRS 338.515, a public body may, but is not required
to, withhold from a progress payment or retainage payment an amount sufficient
to pay the expenses the public body reasonably expects to incur as a result of
the failure of the contractor to comply with the contract or applicable
building code, law or regulation.
2. A public body shall, within 20 days
after it receives a progress bill or retainage bill from a contractor, give a
written notice to the contractor of any amount that will be withheld pursuant
to this section. The written notice must set forth:
(a) The amount of the progress payment or
retainage payment that will be withheld from the contractor; and
(b) A detailed explanation of the reason the
public body will withhold that amount, including, without limitation, a
specific reference to the provision or section of the contract, or any
documents related thereto, or the applicable building code, law or regulation
with which the contractor has failed to comply.
Ê The written
notice must be signed by an authorized agent of the public body.
3. If the public body receives a written
notice of the correction of the condition that is the reason for the
withholding, signed by an authorized agent of the contractor, the public body
shall, after confirming that the condition has been corrected, pay the amount
withheld by the public body within 30 days after the public body receives the
next progress bill or retainage bill.
(Added to NRS by 1999, 1984; A 2005, 1814; 2013, 3807)
NRS 338.525 Withholding amounts for
failure of contractor to comply with contract or applicable building code, law
or regulation; payment of amounts withheld upon confirmation of correction of
condition. [Effective July 1, 2015.]
1. A public body may, but is not required
to, withhold from a progress payment or retainage payment an amount sufficient
to pay the expenses the public body reasonably expects to incur as a result of
the failure of the contractor to comply with the contract or applicable
building code, law or regulation.
2. A public body shall, within 20 days after
it receives a progress bill or retainage bill from a contractor, give a written
notice to the contractor of any amount that will be withheld pursuant to this
section. The written notice must set forth:
(a) The amount of the progress payment or retainage
payment that will be withheld from the contractor; and
(b) A detailed explanation of the reason the
public body will withhold that amount, including, without limitation, a
specific reference to the provision or section of the contract, or any documents
related thereto, or the applicable building code, law or regulation with which
the contractor has failed to comply.
Ê The written
notice must be signed by an authorized agent of the public body.
3. If the public body receives a written
notice of the correction of the condition that is the reason for the
withholding, signed by an authorized agent of the contractor, the public body
shall, after confirming that the condition has been corrected, pay the amount
withheld by the public body within 30 days after the public body receives the
next progress bill or retainage bill.
(Added to NRS by 1999, 1984; A 2005, 1814; 2013, 3807,
effective July 1, 2015)
NRS 338.530 Payment of interest on amounts withheld improperly. [Effective
through June 30, 2015.]
1. If a public body receives:
(a) A progress bill or retainage bill, fails to
give a contractor a written notice of any withholding in the manner set forth
in subsection 2 of NRS 338.525, and does not pay
the contractor within 30 days after receiving the progress bill or retainage
bill; or
(b) A contractor’s written notice of the
correction of a condition set forth pursuant to subsection 2 of NRS 338.525 as the reason for the withholding, signed
by an authorized agent of the contractor, and fails to:
(1) Pay the amount of the progress payment
or retainage payment that was withheld from the contractor within 30 days after
the public body receives the next progress bill or retainage bill; or
(2) Object to the scope and manner of the
correction, within 30 days after the public body receives the notice of
correction, in a written statement that sets forth the reason for the objection
and is signed by an authorized agent of the public body,
Ê the public
body shall pay to the contractor, in addition to the entire amount of the
progress bill or retainage bill or any unpaid portion thereof, interest from
the 30th day on the amount delayed, at a rate equal to the amount provided for
in subsection 6 of NRS 338.515, until payment is
made to the contractor.
2. If the public body objects pursuant to
subparagraph (2) of paragraph (b) of subsection 1, it shall pay to the
contractor an amount equal to the value of the corrections to which the public
body does not object.
(Added to NRS by 1999, 1985; A 2011, 1621)
NRS 338.530 Payment of interest on
amounts withheld improperly. [Effective July 1, 2015.]
1. If a public body receives:
(a) A progress bill or retainage bill, fails to
give a contractor a written notice of any withholding in the manner set forth
in subsection 2 of NRS 338.525, and does not pay
the contractor within 30 days after receiving the progress bill or retainage
bill; or
(b) A contractor’s written notice of the
correction of a condition set forth pursuant to subsection 2 of NRS 338.525 as the reason for the withholding, signed
by an authorized agent of the contractor, and fails to:
(1) Pay the amount of the progress payment
or retainage payment that was withheld from the contractor within 30 days after
the public body receives the next progress bill or retainage bill; or
(2) Object to the scope and manner of the
correction, within 30 days after the public body receives the notice of
correction, in a written statement that sets forth the reason for the objection
and is signed by an authorized agent of the public body,
Ê the public
body shall pay to the contractor, in addition to the entire amount of the
progress bill or retainage bill or any unpaid portion thereof, interest from
the 30th day on the amount delayed, at a rate equal to the amount provided for
in subsection 3 of NRS 338.515, until payment is
made to the contractor.
2. If the public body objects pursuant to
subparagraph (2) of paragraph (b) of subsection 1, it shall pay to the contractor
an amount equal to the value of the corrections to which the public body does
not object.
(Added to NRS by 1999, 1985; A 2011, 1621,
effective July 1, 2015)
NRS 338.535 Public body to provide notice concerning progress payments and
retainage payments to certain subcontractors and suppliers. Within 5 working days after a public body
receives a written request from a subcontractor or supplier of the contractor
with respect to a contract which has not been fully performed, the public body
shall notify the subcontractor or supplier in writing of the following:
1. The date the public body made a
specified progress payment or retainage payment to a contractor;
2. Whether the public body has paid the
entire amount of a specified progress payment or retainage payment to the
contractor; and
3. The amount withheld by the public body
from a specified progress payment or retainage payment to the contractor, if
any.
(Added to NRS by 1999, 1985)
Payments Made by Contractor to Subcontractors and
Suppliers
NRS 338.550 Time for making payments; amounts paid. Except
as otherwise provided in NRS 338.555, 338.560 and 338.565:
1. Each contractor shall disburse money
paid to the contractor pursuant to this chapter, including any interest which
the contractor receives, to his or her subcontractors and suppliers within 10
days after the contractor receives the money, in direct proportion to the
subcontractors’ and suppliers’ basis in the progress bill or retainage bill and
any accrued interest thereon.
2. A contractor shall make payments to his
or her subcontractor or supplier in an amount equal to that subcontractor’s or
supplier’s basis in the payments paid by the public body to the contractor for
the supplies, material and equipment identified in the contract between the
contractor and the public body, or between the subcontractor or supplier and
the contractor, within 10 days after the contractor has received a progress payment
or retainage payment from the public body for those supplies, materials and
equipment.
(Added to NRS by 1987, 559; A 1999, 1993)
NRS 338.555 Amounts withheld as retainage; payment of interest. [Effective
through June 30, 2015.]
1. If a public body and a contractor enter
into a contract for a public work, the contractor may withhold as retainage not
more than 5 percent from the amount of any progress payment due under a
subcontract which is made before 50 percent of the work has been completed
under the subcontract.
2. After 50 percent of the work required
by the contract has been performed, the contractor shall pay any additional
progress payments due under the subcontract without withholding any additional
retainage if, in the opinion of the contractor, satisfactory progress is being
made in the work under the subcontract, and the payment must be equal to that
paid by the public body to the contractor for the work performed by the
subcontractor. If the contractor continues to withhold retainage from remaining
progress payments:
(a) If the contractor does not withhold any
amount pursuant to NRS 338.560:
(1) The contractor may not withhold more
than 2.5 percent of the amount of any progress payment; and
(2) Before withholding any amount pursuant
to subparagraph (1), the contractor must pay to the subcontractor 50 percent of
the amount of any retainage that was withheld from progress payments pursuant
to subsection 1; or
(b) If the contractor withholds any amount
pursuant to NRS 338.560:
(1) The contractor may not withhold more
than 5 percent of the amount of any progress payment; and
(2) The contractor may continue to retain
the amount of any retainage that was withheld from progress payments pursuant
to subsection 1.
3. If the contractor receives a payment of
interest earned on the retainage or an amount withheld from a progress payment,
the contractor shall, within 10 days after he or she receives the money, pay to
each subcontractor or supplier that portion of the interest received from the
public body which is attributable to the retainage or amount withheld from a
progress payment by the contractor to the subcontractor or supplier.
4. If, pursuant to subsection 3 of NRS 338.515, the public body pays to the contractor an
amount of any retainage that was withheld from progress payments pursuant to
subsection 1 of NRS 338.515 for the portion of the
work which has been performed by the subcontractor, the contractor must pay to
the subcontractor the portion of any retainage withheld by the contractor
pursuant to this section for the portion of the work.
(Added to NRS by 1973, 1160; A 1981, 553; 1983, 1592; 1999, 1994; 2011, 1622)
NRS 338.555 Amounts withheld as
retainage; payment of interest. [Effective July 1, 2015.]
1. If a public body and a contractor enter
into a contract for a public work, the contractor may withhold as retainage not
more than 10 percent from the amount of any progress payment due under a
subcontract which is made before 50 percent of the work has been completed
under the subcontract. Thereafter the contractor shall pay any additional
progress payments due under the subcontract without withholding any additional
retainage if, in the opinion of the contractor, satisfactory progress is being
made in the work under the subcontract, and the payment must be equal to that
paid by the public body to the contractor for the work performed by the
subcontractor.
2. If the contractor receives a payment of
interest earned on the retainage or an amount withheld from a progress payment,
the contractor shall, within 10 days after he or she receives the money, pay to
each subcontractor or supplier that portion of the interest received from the
public body which is attributable to the retainage or amount withheld from a
progress payment by the contractor to the subcontractor or supplier.
(Added to NRS by 1973, 1160; A 1981, 553; 1983, 1592; 1999, 1994; 2011, 1622,
effective July 1, 2015)
NRS 338.560 Withholding amounts for failure of subcontractor or supplier to
comply with subcontract or applicable building code, law or regulation or for
claim for wages against subcontractor; payment of amounts withheld upon
correction of condition. [Effective through June 30, 2015.]
1. Except as otherwise provided in
subsection 2 of NRS 338.555, a contractor may
withhold from a progress payment or retainage payment an amount sufficient to
pay:
(a) The expenses the contractor reasonably
expects to incur as a result of the failure of his or her subcontractor or
supplier to comply with the subcontract or applicable building code, law or
regulation.
(b) An amount withheld from payment to the
contractor by a public body pursuant to subsection 7 of NRS
338.515 for a claim for wages against the subcontractor.
2. A contractor shall, within 10 days
after the contractor receives:
(a) A progress payment or retainage payment from
the public body for an amount that is less than the amount set forth in the
applicable progress bill or retainage bill; or
(b) A progress bill or retainage bill from his or
her subcontractor or supplier,
Ê give a
written notice to his or her subcontractor or supplier of any amount that will
be withheld pursuant to this section.
3. The written notice must:
(a) Set forth:
(1) The amount of the progress payment or
retainage payment that will be withheld from his or her subcontractor or
supplier; and
(2) A detailed explanation of the reason
the contractor will withhold that amount, including, without limitation, a
specific reference to the provision or section of the subcontract, or documents
related thereto, or applicable building code, law or regulation with which his
or her subcontractor or supplier has failed to comply; and
(b) Be signed by an authorized agent of the
contractor.
4. The contractor shall pay to his or her
subcontractor or supplier the amount withheld by the public body or the
contractor within 10 days after:
(a) The contractor receives a written notice of
the correction of the condition that is the reason for the withholding, signed
by an authorized agent of the subcontractor or supplier; or
(b) The public body pays to the contractor the
amount withheld,
Ê whichever
occurs later.
(Added to NRS by 1999, 1985; A 2003, 2448; 2011, 1622;
2013, 3808)
NRS 338.560 Withholding amounts for
failure of subcontractor or supplier to comply with subcontract or applicable
building code, law or regulation or for claim for wages against subcontractor;
payment of amounts withheld upon correction of condition. [Effective July 1,
2015.]
1. A contractor may withhold from a
progress payment or retainage payment an amount sufficient to pay:
(a) The expenses the contractor reasonably
expects to incur as a result of the failure of his or her subcontractor or
supplier to comply with the subcontract or applicable building code, law or
regulation.
(b) An amount withheld from payment to the
contractor by a public body pursuant to subsection 4 of NRS
338.515 for a claim for wages against the subcontractor.
2. A contractor shall, within 10 days
after the contractor receives:
(a) A progress payment or retainage payment from
the public body for an amount that is less than the amount set forth in the
applicable progress bill or retainage bill; or
(b) A progress bill or retainage bill from his or
her subcontractor or supplier,
Ê give a
written notice to his or her subcontractor or supplier of any amount that will
be withheld pursuant to this section.
3. The written notice must:
(a) Set forth:
(1) The amount of the progress payment or
retainage payment that will be withheld from his or her subcontractor or
supplier; and
(2) A detailed explanation of the reason
the contractor will withhold that amount, including, without limitation, a
specific reference to the provision or section of the subcontract, or documents
related thereto, or applicable building code, law or regulation with which his
or her subcontractor or supplier has failed to comply; and
(b) Be signed by an authorized agent of the
contractor.
4. The contractor shall pay to his or her
subcontractor or supplier the amount withheld by the public body or the
contractor within 10 days after:
(a) The contractor receives a written notice of
the correction of the condition that is the reason for the withholding, signed
by an authorized agent of the subcontractor or supplier; or
(b) The public body pays to the contractor the
amount withheld,
Ê whichever
occurs later.
(Added to NRS by 1999, 1985; A 2003, 2448; 2011, 1622;
2013, 3808,
effective July 1, 2015)
NRS 338.565 Payment of interest on amounts withheld improperly.
1. If a contractor makes payment to a
subcontractor or supplier more than 10 days after the occurrence of any of the
following acts or omissions:
(a) The contractor fails to pay his or her
subcontractor or supplier in accordance with the provisions of subsection 1 of NRS 338.550;
(b) The contractor fails to give his or her
subcontractor or supplier the written notice of any withholding as required by
subsections 2 and 3 of NRS 338.560; or
(c) The contractor receives a subcontractor’s or
supplier’s written notice of correction of the condition set forth pursuant to
subsection 4 of NRS 338.560 as the reason for the
withholding, signed by an authorized agent of the subcontractor or supplier,
and fails to:
(1) Pay the amount of the progress payment
or retainage payment that was withheld from his or her subcontractor or
supplier within 10 days after the contractor receives the next progress bill or
retainage bill; or
(2) Object to the scope and manner of the
correction, within 10 days after receiving the written notice of correction, in
a written statement that sets forth the reason for the objection and is signed
by an authorized agent of the subcontractor, statement that sets forth the
reason for the objection and is accompanied by a notarized affidavit signed by
the contractor,
Ê the
contractor shall pay to the subcontractor or supplier, in addition to the
entire amount of the progress bill or the retainage bill or any unpaid portion
thereof, interest from the 10th day on the amount delayed, at a rate equal to
the lowest daily prime rate at the three largest banks or other financial
institutions of the United States on the date the contract was executed plus 2
percent, until payment is made to the subcontractor or supplier.
2. If the contractor objects pursuant to
subparagraph (2) of paragraph (c) of subsection 1, the contractor shall pay to
the subcontractor or supplier an amount that is equal to the value of the
corrections to which the contractor does not object.
(Added to NRS by 1999, 1986)
NRS 338.570 Contractor to provide notice concerning progress payments and
retainage payments to certain subcontractors and suppliers. Within 5 working days after a contractor
receives a written request from a subcontractor or supplier of his or her
subcontractor or supplier with respect to a subcontract which has not been
fully performed, the contractor shall notify the subcontractor or supplier of
his or her subcontractor or supplier in writing of the following:
1. The date the contractor made a
specified progress payment or retainage payment to his or her subcontractor or
supplier;
2. Whether the contractor has paid the
entire amount of a specified progress payment or retainage payment to his or
her subcontractor or supplier; and
3. The amount withheld by the contractor
from a specified progress payment or retainage payment to his or her
subcontractor or supplier, if any.
(Added to NRS by 1999, 1987)
Payments Made by Subcontractor to Subcontractors and
Suppliers
NRS 338.590 Time for making payments; amounts paid. Except
as otherwise provided in NRS 338.595, 338.600 and 338.605:
1. Each subcontractor shall disburse money
paid to him or her pursuant to this chapter, including any interest which the
subcontractor receives, to his or her subcontractors and suppliers within 10
days after the subcontractor receives the money, in direct proportion to the
subcontractors’ and suppliers’ basis in the progress bill or retainage bill and
any accrued interest thereon.
2. A subcontractor shall make payments to
his or her subcontractor or supplier in an amount equal to that subcontractor’s
or supplier’s basis in the payments paid by the contractor to him or her for
the supplies, materials and equipment identified in the contract between the
contractor and the public body, or in the subcontract between the subcontractor
or supplier and the contractor, within 10 days after the subcontractor has
received a progress payment or retainage payment from the contractor for those
supplies, materials and equipment.
(Added to NRS by 1999, 1987)
NRS 338.595 Amounts withheld as retainage; payment of interest. [Effective
through June 30, 2015.]
1. If a subcontractor and another
subcontractor or supplier enter into a subcontract for a public work, the
subcontractor may withhold as retainage not more than 5 percent from the amount
of any progress payment due under a subcontract which is made before 50 percent
of the work has been completed under the subcontract.
2. After 50 percent of the work required
by the subcontractor or supplier has been performed, the subcontractor shall
pay any additional progress payments due under the subcontract without
withholding any additional retainage if, in the opinion of the subcontractor,
satisfactory progress is being made in the work under the subcontract. The
payment must be equal to that paid by the contractor to the subcontractor for
the work performed or supplies provided by his or her subcontractor or
supplier. If the subcontractor continues to withhold retainage from remaining
progress payments:
(a) If the subcontractor does not withhold any
amount pursuant to NRS 338.600:
(1) The subcontractor may not withhold more
than 2.5 percent of the amount of any progress payment; and
(2) Before withholding any amount pursuant
to subparagraph (1), the subcontractor must pay to the subcontractor or
supplier 50 percent of the amount of any retainage that was withheld from
progress payments pursuant to subsection 1; or
(b) If the subcontractor withholds any amount
pursuant to NRS 338.600:
(1) The subcontractor may not withhold
more than 5 percent of the amount of any progress payment; and
(2) The subcontractor may continue to
retain the amount of any retainage that was withheld from progress payments
pursuant to subsection 1.
3. If the subcontractor receives a payment
of interest earned on the retainage or an amount withheld from a progress
payment, the subcontractor shall, within 10 days after receiving the money, pay
to each of his or her subcontractors or suppliers that portion of the interest
received from the contractor which is attributable to the retainage or amount
withheld from a progress payment by the subcontractor to his or her
subcontractor or supplier.
4. If, pursuant to subsection 4 of NRS 338.555, the contractor pays to the subcontractor
the portion of any retainage withheld by the contractor pursuant to NRS 338.555 for the portion of the work which has been
performed by the subcontractor, the subcontractor must pay to the
subcontractor’s subcontractors and suppliers the portion of any retainage
withheld by the subcontractor pursuant to this section for the portion of the
work.
(Added to NRS by 1999, 1987; A 2003, 2449; 2011, 1623)
NRS 338.595 Amounts withheld as
retainage; payment of interest. [Effective July 1, 2015.]
1. If a subcontractor and another
subcontractor or supplier enter into a subcontract for a public work, the
subcontractor may withhold as retainage not more than 10 percent from the
amount of any progress payment due under a subcontract which is made before 50
percent of the work has been completed under the subcontract. The subcontractor
shall pay any additional progress payments due under the subcontract without
withholding any additional retainage if, in the opinion of the subcontractor,
satisfactory progress is being made in the work under the subcontract. The
payment must be equal to that paid by the contractor to the subcontractor for
the work performed or supplies provided by his or her subcontractor or
supplier.
2. If the subcontractor receives a payment
of interest earned on the retainage or an amount withheld from a progress
payment, the subcontractor shall, within 10 days after receiving the money, pay
to each of his or her subcontractors or suppliers that portion of the interest
received from the contractor which is attributable to the retainage or amount
withheld from a progress payment by the subcontractor to his or her
subcontractor or supplier.
(Added to NRS by 1999, 1987; A 2003, 2449; 2011, 1623,
effective July 1, 2015)
NRS 338.600 Withholding amounts for failure of subcontractor or supplier to
comply with subcontract or applicable building code, law or regulation; payment
of amounts withheld upon correction of condition. [Effective through June 30,
2015.]
1. Except as otherwise provided in NRS 338.595, a subcontractor may withhold from a
progress payment or retainage payment an amount sufficient to pay the expenses
the subcontractor reasonably expects to incur as a result of the failure of his
or her subcontractor or supplier to comply with the subcontract or applicable
building code, law or regulation.
2. A subcontractor shall, within 10 days
after the subcontractor receives:
(a) A progress payment or retainage payment from
a contractor for an amount that is less than the amount set forth in the
applicable progress bill or retainage bill; or
(b) A progress bill or retainage bill from his or
her subcontractor or supplier,
Ê give a
written notice to his or her subcontractor or supplier of any amount that will
be withheld pursuant to this section.
3. The written notice must:
(a) Set forth:
(1) The amount of the progress payment or
retainage payment that will be withheld from his or her subcontractor or
supplier; and
(2) A detailed explanation of the reason
the subcontractor will withhold that amount, including, without limitation, a
specific reference to the provision or section of the subcontract, or documents
related thereto, or applicable building code, law or regulation with which the
subcontractor or supplier has failed to comply; and
(b) Be signed by an authorized agent of the
subcontractor.
4. The subcontractor shall pay to his or
her subcontractor or supplier the amount withheld by the public body,
contractor or subcontractor within 10 days after:
(a) The subcontractor receives a written notice
of the correction of the condition that is the reason for the withholding,
signed by an authorized agent of his or her subcontractor or supplier; or
(b) The contractor pays to the subcontractor the
amount withheld,
Ê whichever
occurs later.
(Added to NRS by 1999, 1988; A 2003, 2449; 2013, 3808)
NRS 338.600 Withholding amounts for
failure of subcontractor or supplier to comply with subcontract or applicable
building code, law or regulation; payment of amounts withheld upon correction
of condition. [Effective July 1, 2015.]
1. A subcontractor may withhold from a
progress payment or retainage payment an amount sufficient to pay the expenses
the subcontractor reasonably expects to incur as a result of the failure of his
or her subcontractor or supplier to comply with the subcontract or applicable
building code, law or regulation.
2. A subcontractor shall, within 10 days
after the subcontractor receives:
(a) A progress payment or retainage payment from
a contractor for an amount that is less than the amount set forth in the
applicable progress bill or retainage bill; or
(b) A progress bill or retainage bill from his or
her subcontractor or supplier,
Ê give a
written notice to his or her subcontractor or supplier of any amount that will
be withheld pursuant to this section.
3. The written notice must:
(a) Set forth:
(1) The amount of the progress payment or
retainage payment that will be withheld from his or her subcontractor or
supplier; and
(2) A detailed explanation of the reason
the subcontractor will withhold that amount, including, without limitation, a
specific reference to the provision or section of the subcontract, or documents
related thereto, or applicable building code, law or regulation with which the
subcontractor or supplier has failed to comply; and
(b) Be signed by an authorized agent of the
subcontractor.
4. The subcontractor shall pay to his or
her subcontractor or supplier the amount withheld by the public body,
contractor or subcontractor within 10 days after:
(a) The subcontractor receives a written notice
of the correction of the condition that is the reason for the withholding,
signed by an authorized agent of his or her subcontractor or supplier; or
(b) The contractor pays to the subcontractor the
amount withheld,
Ê whichever
occurs later.
(Added to NRS by 1999, 1988; A 2003, 2449; 2013, 3808,
effective July 1, 2015)
NRS 338.605 Payment of interest on amounts withheld improperly.
1. If a subcontractor makes payment to his
or her subcontractor or supplier more than 10 days after the occurrence of any
of the following acts or omissions:
(a) The subcontractor fails to pay his or her
subcontractor or supplier in accordance with the provisions of subsection 1 of NRS 338.590;
(b) The subcontractor fails to give his or her
subcontractor or supplier the written notice of any withholding as required by
subsections 2 and 3 of NRS 338.600; or
(c) The subcontractor receives a written notice
of the correction of a condition set forth pursuant to subsection 4 of NRS 338.600 as the reason for the withholding from his
or her subcontractor or supplier, signed by an authorized agent of the
subcontractor or supplier, and fails to:
(1) Pay the amount of the progress payment
or retainage payment that was withheld from his or her subcontractor or supplier
within 10 days after the subcontractor receives the subcontractor’s or
supplier’s next progress bill or retainage bill; or
(2) Object to the scope and manner of the
correction, within 10 days after receiving the written notice of correction, in
a written statement that sets forth the reason for the objection, signed by an
authorized agent of the subcontractor,
Ê the
subcontractor shall pay to his or her subcontractor or supplier, in addition to
the entire amount of the progress bill or the retainage bill or any unpaid
portion thereof, interest from the 10th day on the amount delayed, at a rate
equal to the lowest daily prime rate at the three largest banks or other
financial institutions of the United States on the date the contract was
executed plus 2 percent, until payment is made to his or her subcontractor or
supplier.
2. If the subcontractor objects pursuant
to subparagraph (2) of paragraph (c) of subsection 1, the subcontractor shall
pay to his or her subcontractor or supplier an amount that is equal to the
value of the corrections to which the subcontractor does not object.
(Added to NRS by 1999, 1988)
NRS 338.610 Subcontractor to provide notice concerning progress payments and
retainage payments to certain subcontractors and suppliers. Within 5 working days after a subcontractor
receives a written request from a subcontractor or supplier of his or her subcontractor
or supplier with respect to a subcontract which has not been fully performed,
he or she shall notify the subcontractor or supplier of his or her
subcontractor or supplier in writing of the following:
1. The date the subcontractor made a specified
progress payment or retainage payment to his or her subcontractor or supplier;
2. Whether the subcontractor has paid the
entire amount of a specified progress payment or retainage payment to his or
her subcontractor or supplier; and
3. The amount withheld by the
subcontractor from a specified progress payment or retainage payment to his or
her subcontractor or supplier, if any.
(Added to NRS by 1999, 1989)
Remedies
NRS 338.630 Action by contractor for alternate writ of mandamus to compel
performance by public body.
1. A contractor who believes that the
public body has failed to perform a duty to:
(a) Make a payment;
(b) Provide written notice of any withholding; or
(c) Provide information upon request relating to
any payment with respect to a contract which has not been fully performed,
Ê pursuant to
one or more of the provisions of NRS 338.515 to 338.535, inclusive, in a timely manner may apply to
the district court of the county in which the public work or a part thereof is
located for an alternate writ of mandamus pursuant to NRS 34.150 to 34.310, inclusive, to require the public
body to perform the duty required pursuant to such a provision.
2. The provisions of this section do not
prevent a public body from including a provision governing the payment of
attorney’s fees in a contract into which it enters with a contractor for a
public work.
(Added to NRS by 1999, 1989)
NRS 338.635 Action by subcontractor or supplier to remedy unjustified or
excessive withholding.
1. A subcontractor or supplier who
believes that the amount withheld by the contractor or subcontractor is not
justified or is excessive may apply to the district court of the county where
the public work or a part thereof is located for an order directing the
contractor or subcontractor to appear before the court to show cause why the
relief requested should not be granted.
2. The motion must:
(a) Set forth the grounds upon which relief is
requested; and
(b) Be accompanied by a notarized affidavit signed
by the petitioner or his or her attorney that sets forth the facts upon which
the motion is based.
3. If the court orders a hearing based
upon the motion, the petitioner shall serve the notice of the motion and the
order of the court on the respondent within 3 days after the court issues the
order. The court shall conduct the hearing not less than 10 days and not more
than 20 days after the court issues the order for a hearing.
4. The order for a hearing must include a
statement that, if the respondent fails to appear at the time and place of the
hearing, the court will order the respondent to pay to the petitioner:
(a) The entire amount that was withheld by the
respondent, or a portion thereof;
(b) Interest on the amount that was withheld by
the respondent, or a portion thereof;
(c) The costs incurred by the petitioner,
including, without limitation, his or her attorney’s fees; or
(d) Any combination of paragraphs (a), (b) and
(c).
5. If, when the motion is filed, there is
a civil action pending between the petitioner and the respondent, the motion
must be consolidated into the civil action.
6. If the court determines that:
(a) The amount withheld is not justified, the
court shall order the respondent to pay to the petitioner the amount that was
withheld.
(b) The amount withheld is excessive, the court
shall order the respondent to pay to the petitioner an amount determined by the
court.
(c) The amount withheld is justified, the court
shall issue an order approving the amount that was withheld by the respondent.
7. The proceedings conducted pursuant to
the provisions of this section do not affect any other rights or remedies
provided by law or contract.
(Added to NRS by 1999, 1990)
NRS 338.640 Award of reasonable costs and attorney’s fees to prevailing
party.
1. The court or arbitrator shall award to
a contractor, subcontractor or supplier who is the prevailing party in a civil
action or an arbitration proceeding to recover an amount that was required to
be paid to him or her pursuant to the provisions of NRS
338.400 to 338.645, inclusive, his or her
reasonable costs and attorney’s fees.
2. The provisions of NRS 338.400 to 338.645,
inclusive, do not prevent a public body from including a provision governing
attorney’s fees in a contract for a public work.
(Added to NRS by 1999, 1991)
NRS 338.645 Other rights and remedies not affected. The
provisions of NRS 338.400 to 338.645,
inclusive, do not impair or affect the rights of a contractor, subcontractor or
supplier to whom any amount may be owed for work performed or materials,
equipment or supplies furnished to maintain a civil action or to submit any
controversy arising under the contract to arbitration to recover that amount.
(Added to NRS by 1999, 1991)