Nrs: Chapter 338 - Public Works

Link to law: https://www.leg.state.nv.us/NRS/NRS-338.html
Published: 2015

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[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)