USA Statutes : nevada
Title : Title 28 - PUBLIC WORKS AND PLANNING
Chapter : CHAPTER 338 - PUBLIC WORKS
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 or performs such work that he is
not required to be licensed pursuant to 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 workman or workmen 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. “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 .
9. “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 .
10. “Governing body” means the board, council, commission or other
body in which the general legislative and fiscal powers of a local
government are vested.
11. “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.
12. “Offense” means failing to:
(a) Pay the prevailing wage required pursuant to this chapter;
(b) Pay the contributions for unemployment compensation required
pursuant to chapter 612 of NRS;
(c) Provide and secure compensation for employees required pursuant
to chapters 616A to 617 , inclusive, of NRS; or
(d) Comply with subsection 4 or 5 of NRS 338.070 .
13. “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 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 .
14. “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.
15. “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.
16. “Specialty contractor” means a person who is licensed to
conduct business as described in subsection 4 of NRS 624.215 .
17. “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 .
18. “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.
19. “Subcontractor” means a person who:
(a) Is licensed pursuant to the provisions of chapter 624 of NRS or performs such work that he 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.
20. “Supplier” means a person who provides materials, equipment or
supplies for a construction project.
21. “Wages” means:
(a) The basic hourly rate of pay; and
(b) The amount of pension, health and welfare, vacation and holiday
pay, the cost of apprenticeship training or other similar programs or
other bona fide fringe benefits which are a benefit to the workman.
22. “Workman” means a skilled mechanic, skilled workman,
semiskilled mechanic, semiskilled workman or unskilled workman 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 )
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
man-made 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 )
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 he 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 338.013 to 338.090 ,
inclusive, 338.1373 to 338.139 , inclusive, and 338.140 to 338.148 ,
inclusive, apply to the contract.
(Added to NRS by 1995, 2648; A 1999, 2397 )
The Labor
Commissioner may adopt such regulations as are necessary to enable him to
carry out his duties pursuant to the provisions of this chapter.
(Added to NRS by 1983, 1361)
EMPLOYMENT
General Provisions
1. A public body that advertises for bids for a public work shall
request from the Labor Commissioner, and include in the advertisement, an
identifying number with his designation of the work. That number must be
included in any bid submitted in response to the advertisement.
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 he 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
)
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 )
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 his bid on the contract
was based, in part, on his 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 )
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 )
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 15 of NRS 338.010
.
(Added to NRS by 2005, 2890 )
Wages
1. Every contract to which a public body of this State is a party,
requiring the employment of skilled mechanics, skilled workmen,
semiskilled mechanics, semiskilled workmen 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
workmen. 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 workmen.
2. When public work is performed by day labor, the prevailing wage
for each class of mechanics and workmen so employed applies and must be
stated clearly to such mechanics and workmen when employed.
3. Except as otherwise provided in subsection 4, a contractor or
subcontractor shall pay to a mechanic or workman 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 workman for each hour the mechanic or workman works on
the public work in excess of:
(a) Forty hours in any scheduled week of work by the mechanic or
workman 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 workman 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
workman 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
workman 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 workman 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 workmen 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 )
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 he:
(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 )
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 workman.
(Added to NRS by 1983, 1574; A 2003, 2415 ; 2005, 813 )
1. Except as otherwise provided by specific statute, workmen 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 workman 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
)
010 to 338.090 , inclusive. For the purpose of NRS 338.010
to 338.090 , inclusive, except as otherwise provided by
specific statute, every workman 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 workman and his employer.
[4:139:1937; A 1941, 389; 1931 NCL § 6179.54]—(NRS A 2001, 1148
; 2005, 2891 )
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 workman 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 workman 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 5 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 workman 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 5 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
workman, 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 )
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 6, 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 keep or cause to be kept an accurate
record showing the name, the occupation and the actual per diem, wages
and benefits paid to each workman employed by the contractor and
subcontractor in connection with the public work.
5. The record maintained pursuant to subsection 4 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 the 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 must be open
to public inspection as provided in NRS 239.010 . The record 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.
6. 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 4 for a calendar month by the time specified in subsection 5
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 5.
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 5.
7. 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 )
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 15 of NRS 338.010
.
(Added to NRS by 2005, 2890 )
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 )
1. 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.
[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 )
Employment Practices
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 race, color, creed, national origin, sex, sexual
orientation 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 race, creed, color, national
origin, sex, sexual orientation 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 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, “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 )
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 Cost 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 )
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 Transportation Services Authority for the
area in which the public work is located.
(Added to NRS by 1969, 900; A 1997, 1987)
PROCEDURES FOR AWARDING CONTRACTS
Limitations on General Applicability of Provisions
1. A local government or its authorized representative shall award
a contract for a public work pursuant to the provisions of:
(a) NRS 338.1377 to 338.139
, inclusive;
(b) NRS 338.143 to 338.148 , inclusive; or
(c) NRS 338.1711 to 338.1727
, inclusive.
2. 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 408.313
to 408.433 , inclusive.
(Added to NRS by 1999, 2390 ; A 2001, 640 , 1930 , 2262 ; 2003, 157 , 1988 , 2128 , 2418 , 2491 )
Qualification of Bidders; Qualification of Subcontractors on State Public
Works
1. The State Public Works Board 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 State Public Works Board 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 or 338.13895 ;
(5) The performance history of the applicant concerning
other recent, similar contracts, if any, completed by the applicant; and
(6) The truthfulness and completeness of the application.
(Added to NRS by 1999, 2390 ; A 2001, 1930 ; 2003, 2128 , 2419 )
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 State Public Works Board 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 State Public Works Board has received information
that:
(a) The State Public Works Board 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 State Public Works Board shall require a
subcontractor regarding whom such information is received to submit to
the State Public Works Board, on a form prescribed by the State Public
Works Board, an application for qualification in accordance with the
criteria established by regulation pursuant to subsection 1. After
receiving such an application, the State Public Works Board 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 State Public Works Board
determines that the subcontractor does not meet such criteria, the State
Public Works Board may disqualify the subcontractor, for a period set by
the State Public Works Board, from participating in public works projects
which are sponsored by the State Public Works Board. The State Public
Works Board 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 )
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 )
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 )
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
State Public Works Board or the local government.
2. Upon receipt of an application pursuant to subsection 1, the
State Public Works Board or the local government shall:
(a) Investigate the applicant to determine whether he 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 State Public Works Board 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 his right to a hearing pursuant to NRS 338.1381
.
4. The State Public Works Board 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 State Public Works Board or the local government.
5. The State Public Works Board 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. 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. Financial information and other data pertaining to the net
worth of an applicant which is gathered by or provided to the State
Public Works Board or a local government to determine the financial
ability of an applicant to perform a contract is confidential and not
open to public inspection.
(Added to NRS by 1999, 2391 ; A 2001, 1931 ; 2003, 2421 , 2493 ; 2005, 1797 )
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 State Public
Works Board or the local government, the 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 )
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 been determined by:
(a) The State Public Works Board 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 )
Advertising; Acceptance of Bids; Award of Contract
[Effective through April 30, 2013.]
1. Except as otherwise provided in subsection 9 and NRS 338.1906
and 338.1907 , 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 has a general circulation in 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 .
(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 bidder who has submitted the
lowest responsive and responsible bid.
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;
or
(e) The design and construction of a public work for which a public
body contracts with a design-build team pursuant to NRS 338.1711 to 338.1727 , inclusive.
(Added to NRS by 1999, 2392 ; A 1999, 3491 , 3497 ; 2001, 252 , 2022 ; 2003, 119 , 1989 , 2422 , 2494 ; 2005, 1798 )
[Effective May 1, 2013.]
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 .
(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;
or
(e) The design and construction of a public work for which a public
body contracts with a design-build team pursuant to NRS 338.1711 to 338.1727 , inclusive.
(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 , effective May 1, 2013)
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 )
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.
(Added to NRS by 2003, 1984 )
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 )
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 ; and
(2) At the time he submits his bid, has 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
(b) Not more than 5 percent higher than the bid submitted by the
lowest responsive and responsible bidder who does not have, at the time
he submits his bid, a valid certificate of eligibility to receive a
preference in bidding on public works issued to him by the State
Contractors’ Board pursuant to subsection 3 or 4,
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 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 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 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 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 annual renewal of his 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 his 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 he 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, he
must submit a separate application for each license pursuant to which he
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 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.
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 be deemed the
best bid 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 or entity who believes that a contractor 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 )
1. The State Public Works Board 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 his 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 State Public
Works Board 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.
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
his 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.
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 his 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 )
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 State Public Works Board pursuant to NRS
338.1376 .
(Added to NRS by 2001, 2258 ; A 2003, 2129 , 2429 )
ADDITIONAL PROCEDURES, CONDITIONS AND LIMITATIONS RELATING TO CONTRACTS
General Provisions
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) 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.
Ê A document furnished to a public body pursuant to this paragraph is
confidential and must be returned to the bidder. Any document furnished
to a public body by a bidder pursuant to this paragraph 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.
2. 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.
3. 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 )
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 or paragraph (a) of subsection 1 of NRS
338.143 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 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 1 percent of the prime contractor’s total bid or $50,000,
whichever is greater, and 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 name on a list required by
paragraph (a) of subsection 1 if he will perform any of the work required
to be listed pursuant to paragraph (a) 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 State Public Works Board 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
State Public Works Board 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 contractor whose bid is accepted 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
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 contractor indicates pursuant to subsection 1 that he will
perform a portion of work on the public work and thereafter requests to
substitute a subcontractor to perform such work, the contractor shall
provide to the public body a written explanation in the form required by
the public body which contains the reasons that:
(a) A subcontractor was not originally contemplated to be used on
that portion of the public work; and
(b) The substitution is in the best interest of the public body.
7. 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 )
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
bids were opened 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 )
Alternative Procedures for Local Governments
[Effective through April 30, 2013.]
1. Except as otherwise provided in subsection 8 and NRS 338.1907
, 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 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.
(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
and 338.1446 .
(c) Divide a project 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;
or
(e) The design and construction of a public work for which a public
body contracts with a design-build team pursuant to NRS 338.1711 to 338.1727 , inclusive.
(Added to NRS by 1987, 2322; A 1993, 913, 1439, 2131, 2134, 2135;
1995, 575, 576; 1999, 1360 , 2398 , 3474 ; 2001, 252 , 269 ; 2003, 119 , 1995 , 2431 ; 2005, 1805 )
[Effective May 1, 2013.]
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;
or
(e) The design and construction of a public work for which a public
body contracts with a design-build team pursuant to NRS 338.1711 to 338.1727 , inclusive.
(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 , effective May 1, 2013)
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 )
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 )
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 )
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; and
(2) At the time he submits his bid, has 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
(b) Not more than 5 percent higher than the bid submitted by the
lowest responsive and responsible bidder who does not have, at the time
he submits the bid, a valid certificate of eligibility to receive a
preference in bidding on public works issued to him by the State
Contractors’ Board pursuant to subsection 3 or 4,
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 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 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 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 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 annual renewal of his 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 his 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 he 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, he
must submit a separate application for each license pursuant to which he
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 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.
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 be deemed a
best bid 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 or entity who believes that a contractor 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 )
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 his 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 his 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 )—(Substituted in revision for NRS 338.145)
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
1. Except as otherwise provided in subsection 3, any public body
charged with the drafting of specifications for a public work shall
include in the specifications a clause requiring arbitration of a dispute
arising between the public body and the contractor engaged on a public
work if the dispute cannot otherwise be settled.
2. Any dispute requiring arbitration must be handled in accordance
with the construction industry’s rules for arbitration as administered by
the American Arbitration Association or the Nevada Arbitration
Association.
3. 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.
4. This section does not prohibit the use of alternate dispute
resolution methods before arbitration.
(Added to NRS by 1969, 618; A 1971, 621; 1979, 1796; 1985, 1462;
2003, 2438 ; 2005, 1808 )
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 )
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:
1. Must set forth:
(a) The specific period within which the public body must pay the
design professional.
(b) The specific period and manner in which the public body may
dispute a payment or portion thereof that the design professional alleges
is due.
(c) 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 paragraph (a).
(d) That the prevailing party in an action to enforce the contract
is entitled to reasonable attorney’s fees and costs.
2. 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 paragraph (a) of
subsection 1.
3. 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.
4. Except as otherwise provided in subsection 5, 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.
5. Except as otherwise provided in this subsection, 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, that 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 to be paid to the public body by the design professional in an
amount which is proportionate to the liability of the design
professional. As used in this subsection, “agents” means those persons
who are directly involved in and acting on behalf of the public body 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 )
CONTRACTS FOR TRANSPORTATION FACILITIES
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 )
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 )
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 )
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 )
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 )
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 )
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 DESIGN-BUILD TEAMS, PRIME CONTRACTORS OR NONPROFIT
ORGANIZATIONS
General Provisions
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:
(a) Is the construction of a park and appurtenances thereto, the
rehabilitation or remodeling of a public building, or the construction of
an addition to a public building; or
(b) Has an estimated cost which exceeds $10,000,000.
(Added to NRS by 1999, 3467 ; A 2001, 2013 , 2022 , 2275 ; 2003, 119 , 157 , 2025 , 2439 ; 2005, 1808 )
Repealed. (See chapter 424, Statutes of Nevada 2005, at page
1815 .)
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 )
A public body may employ a registered architect,
landscape architect or licensed professional engineer as a consultant to
assist the public body in overseeing the construction of a public work.
An architect, 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 )
Procedures For Awarding Contracts to Design-Build Teams
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 )
1. A public body shall advertise for preliminary proposals for the
design and construction of a public work by a design-build team 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 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 )
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 ; and
(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.
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 the rankings of the design-build teams who submitted
preliminary proposals.
(Added to NRS by 1999, 3470 ; A 2001, 2016 , 2022 ; 2003, 119 ; 2005, 1811 )
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 a
certificate of eligibility to receive a preference in bidding on public
works 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 preference in bidding on 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, at a regularly scheduled meeting, shall:
(a) Select the final proposal, using 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; or
(b) Reject all the final proposals.
7. If a public body selects a final proposal and awards a
design-build contract pursuant to paragraph (a) of 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 )
NOTIFICATION OF LICENSING BOARDS
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 )
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
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 )
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 the physically handicapped in
public buildings and facilities designed after July 1, 1973, in order to
encourage and facilitate the employment of the physically handicapped and
to make public buildings accessible to and usable by the physically
handicapped; 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, the physically handicapped, 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 the physically handicapped 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 the physically handicapped. 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 State Public Works Board 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 )
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
[Effective July 1, 2007.]
1. Except as otherwise provided in subsection 2, each occupied
public building whose construction will be sponsored or financed by this
State must, when completed, meet the requirements to be certified at or
meet the equivalent of the base level or higher in accordance with the
Leadership in Energy and Environmental Design Green Building Rating
System, or an equivalent standard, as adopted by the Director of the
Office of Energy pursuant to NRS 701.217 .
2. During each biennium, at least two occupied public buildings
whose construction will be sponsored or financed by this State must be
designated as demonstration projects and must, when completed, meet the
requirements to be certified at or meet the equivalent of the silver
level or higher in accordance with the Leadership in Energy and
Environmental Design Green Building Rating System, or an equivalent
standard, as adopted by the Director of the Office of Energy pursuant to
NRS 701.217 if:
(a) The Director of the Office of Energy, in consultation with the
State Board of Examiners and the State Public Works Board, has determined
that it is feasible for the buildings to meet such requirements and
standards and that it is a cost-effective investment to do so; and
(b) The agency or agencies that will occupy the buildings have
agreed to allow the buildings to be designated as demonstration projects
pursuant to this subsection.
3. Each occupied public building whose construction is sponsored
or financed by a local government may meet the requirements to be
certified at or meet the equivalent of the base level or higher in
accordance with the Leadership in Energy and Environmental Design Green
Building Rating System, or an equivalent standard, as adopted by the
Director of the Office of Energy pursuant to NRS 701.217 .
4. As used in this section, “occupied public building” means a
public building used primarily as an office space or work area for
persons employed by this State or a local government. The term does not
include a public building used primarily as a storage facility or
warehouse or for similar purposes.
(Added to NRS by 2005, 22nd Special Session, 69 , effective July 1, 2007)
1. Before it begins to construct or renovate any occupied public
building which is larger than 20,000 square feet, each agency of the
State or a political subdivision, district, authority, board or public
corporation of the State shall obtain a detailed analysis of the cost of
operating and maintaining the building for its expected useful life.
2. The analysis must:
(a) Estimate the cost to construct or renovate the occupied public
building and the cost to operate and maintain the building; and
(b) Identify measures, including, without limitation, for the:
(1) Conservation of water;
(2) Conservation of energy and energy efficiency that will
generate cost savings within 10 years that are equal to or greater than
the cost of implementation; and
(3) Use of types of energy which are alternatives to fossil
fuels, such as active and passive applications of solar energy, wind and
geothermal energy,
Ê which can be included in the building in its construction or renovation.
3. The agency of government which proposes to construct or
renovate the occupied public building must consider the results of the
analysis required by this section in deciding upon the type of
construction or renovation and the components and systems which will be
included in the building. The agency of government shall consider the use
of types of energy which are alternatives to fossil fuels and any other
energy conservation measures identified in the analysis into the design
of the building if it is determined to be in the best interest of the
State.
4. The agency of government may select, through the bidding
process, a contractor to conduct the analysis required pursuant to this
section. If a contractor is selected to conduct the analysis, any
contract for the purchase, lease or rental of cost-saving measures must
provide that all payments, other than any obligations that become due if
the contract is terminated before the contract expires, be made from the
cost savings.
5. As used in this section, “occupied public building” means a
public building used primarily as an office space or work area for
persons employed by an agency of the State or a political subdivision,
district, authority, board or public corporation of the State. The term
does not include a public building used primarily as a storage facility
or warehouse or for similar purposes.
(Added to NRS by 1981, 147; A 2005, 22nd Special Session, 70 )
[Expires by limitation on May 1, 2013.]
1. The Governor shall designate one or more energy retrofit
coordinators for the buildings occupied by the Executive Branch of
government, including, without limitation, the Nevada System of Higher
Education and the Public Employees’ Retirement System.
2. The Supreme Court shall designate an energy retrofit
coordinator for the buildings occupied by the Judicial Branch of State
Government.
3. The Legislature, by concurrent resolution, shall designate an
energy retrofit coordinator for the buildings occupied by the Legislative
Branch of government. If the position becomes vacant at a time when the
Legislature is not in session, the Legislative Commission may designate a
replacement.
4. The Governor shall appoint a person who is trained in the
management of facilities to assist the energy retrofit coordinator of the:
(a) Judicial Branch of government, upon request of the Supreme
Court.
(b) Legislative Branch of government, upon request of the
Legislative Commission.
Ê A person appointed to assist an energy retrofit coordinator pursuant to
this subsection shall provide all assistance requested including making
recommendations for proposals for retrofitting buildings and any other
assistance necessary to enable the coordinator to carry out the
provisions of NRS 338.1906 .
(Added to NRS by 1993, 910; A 1993, 1439, 2135; 1995, 550, 575,
576; 1999, 1818 )
[Expires by limitation on May 1, 2013.]
1. Upon request by or consultation with an officer or employee of
the State who is responsible for the budget of a department, board,
commission, agency or other entity of the State, the appropriate energy
retrofit coordinator may request the approval of the State Board of
Examiners to advertise a request for proposals to retrofit a building, or
any portion thereof, that is occupied by the department, board,
commission, agency or other entity, to make the use of energy in the
building, or portion thereof, more efficient.
2. Upon approval of the State Board of Examiners, the coordinator
shall prepare a request for proposals for the retrofitting of one or more
buildings, or any portion thereof, which includes:
(a) The name and location of the coordinator;
(b) A brief description of the requirements for the initial audit
of the use of energy and the retrofitting;
(c) Where and how specifications of the requirements for the
initial audit of the use of energy and the retrofitting may be obtained;
(d) The date and time not later than which proposals must be
received by the coordinator; and
(e) The date and time when responses will be opened.
3. The request for proposals must be published in at least one
newspaper of general circulation in the State.
4. After receiving the proposals but before making a decision on
the proposals, the coordinator shall consider:
(a) The best interests of the State;
(b) The experience and financial stability of the persons
submitting the proposals;
(c) Whether the proposals conform with the terms of the request for
proposals;
(d) The prices of the proposals; and
(e) Any other factor disclosed in the request for proposals.
5. The coordinator shall determine the relative weight of each
factor before a request for proposals is advertised. The weight of each
factor must not be disclosed before the date proposals are required to be
submitted to the coordinator.
6. After reviewing the proposals, if the coordinator determines
that the dollar value of the annual energy savings resulting from the
retrofit will meet or exceed the total annual contract payments to be
made by the State, including any financing charges to be incurred by the
State over the life of the contract, the coordinator shall select the
best proposal and request the approval of the State Board of Examiners to
award the contract. The request for approval must include the proposed
method of financing the audit and retrofit, which may include an
installment contract, a shared savings contract or any other contract for
a reasonable financing arrangement. Such a contract may commit the State
to make payments beyond the biennium in which the contract is executed,
but the interest due on any debt created pursuant to this section must be
paid at least semiannually, payments must be made on the principal at
least annually and the debt must be fully repaid on or before May 1, 2013.
7. Before approving a retrofit pursuant to this section, the State
Board of Examiners shall evaluate any projects that would utilize shared
savings as a method of payment or any method of financing that would
commit the State to make payments beyond the biennium in which the
contract is executed to ensure that:
(a) The dollar value of the annual energy savings resulting from
the retrofit will meet or exceed the total annual contract payments to be
made by the State, including any financing charges to be incurred by the
State over the life of the contract;
(b) The State is likely to continue to occupy the building for the
entire period required to recoup the cost of the retrofit in energy
savings; and
(c) The limitation set forth in subsection 9 will not be exceeded.
8. Upon approval of the State Board of Examiners, the coordinator
shall execute the contract and notify:
(a) The State Board of Examiners of the total amount of money
committed by the contract per year; and
(b) Each officer or employee who is responsible for the budget of a
department, board, commission, agency or other entity which occupies a
portion of a building that will be retrofitted of the amount of money it
will be required to pay annually for its portion of the retrofit.
9. The total amount of money committed beyond the biennium for all
contracts executed pursuant to this section must not exceed $15,000,000
at any one time.
10. The Legislature hereby pledges that a tax will be levied to
pay the principal and interest on any indebtedness resulting from a
contract executed pursuant to this section as they become due if the
required payments will not be made by the entity that executed the
contract from its budgeted accounts and the proceeds from any such taxes
are hereby specially appropriated for this purpose.
11. A change order to a contract executed pursuant to this section
may not be approved by the State if the cost of the change order would
cause the dollar value of the annual energy savings resulting from the
retrofit to be less than the total annual contract payments to be made by
the State, including any financing charges to be incurred by the State
over the life of the contract, unless approval of the change order is
more economically feasible than termination of the retrofit.
12. NRS 338.1385 does not apply
to a project for which a request for proposals is advertised and the
contract is awarded pursuant to the provisions of this section.
(Added to NRS by 1993, 910; A 1993, 1437, 1439, 2135; 1995, 575,
576; 1999, 2402 ; 2001, 2991 ; 2005, 2891 )
[Expires by limitation on
May 1, 2013.]
1. A governing body may designate one or more energy retrofit
coordinators for the buildings occupied by the local government.
2. If such a coordinator is designated, upon request by or
consultation with an officer or employee of the local government who is
responsible for the budget of a department, board, commission or other
entity of the local government, the coordinator may request the approval
of the governing body to advertise a request for proposals to retrofit a
building, or any portion thereof, that is occupied by the department,
board, commission or other entity, to make the use of energy in the
building, or portion thereof, more efficient.
3. Upon approval of the governing body, the coordinator shall
prepare a request for proposals for the retrofitting of one or more
buildings, or any portion thereof, which includes:
(a) The name and location of the coordinator;
(b) A brief description of the requirements for the initial audit
of the use of energy and the retrofitting;
(c) Where and how specifications of the requirements for the
initial audit of the use of energy and the retrofitting may be obtained;
(d) The date and time not later than which proposals must be
received by the coordinator; and
(e) The date and time when responses will be opened.
4. The request for proposals must be published 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 where the public work will be performed.
5. After receiving the proposals but before making a decision on
the proposals, the coordinator shall consider:
(a) The best interests of the local government;
(b) The experience and financial stability of the persons
submitting the proposals;
(c) Whether the proposals conform with the terms of the request for
proposals;
(d) The prices of the proposals; and
(e) Any other factor disclosed in the request for proposals.
6. The coordinator shall determine the relative weight of each
factor before a request for proposals is advertised. The weight of each
factor must not be disclosed before the date proposals are required to be
submitted to the coordinator.
7. After reviewing the proposals, if the coordinator determines
that the dollar value of the annual energy savings resulting from the
retrofit will meet or exceed the total annual contract payments to be
made by the local government, including any financing charges to be
incurred by the local government over the life of the contract, the
coordinator shall select the best proposal and request the approval of
the governing body to award the contract. The request for approval must
include the proposed method of financing the audit and retrofit, which
may include an installment contract, a shared savings contract or any
other contract for a reasonable financing arrangement. Such a contract
may commit the local government to make payments beyond the fiscal year
in which the contract is executed or beyond the terms of office of the
governing body, or both.
8. Before approving a retrofit pursuant to this section, the
governing body shall evaluate any projects that would utilize shared
savings as a method of payment or any method of financing that would
commit the local government to make payments beyond the fiscal year in
which the contract is executed or beyond the terms of office of the
governing body to ensure that:
(a) The dollar value of the annual energy savings resulting from
the retrofit will meet or exceed the total annual contract payments to be
made by the local government related to the retrofit, including any
financing charges to be incurred by the local government over the life of
the contract; and
(b) The local government is likely to continue to occupy the
building for the entire period required to recoup the cost of the
retrofit in energy savings.
9. Upon approval of the governing body, the coordinator shall
execute the contract and notify each officer or employee who is
responsible for the budget of a department, board, commission or other
entity which occupies a portion of a building that will be retrofitted of
the amount of money it will be required to pay annually for its portion
of the retrofit.
10. A change order to a contract executed pursuant to this section
may not be approved by the local government if the cost of the change
order would cause the dollar value of the annual energy savings resulting
from the retrofit to be less than the total annual contract payments to
be made by the local government, including financing charges to be
incurred by the local government over the life of the contract, unless
approval of the change order is more economically feasible than
termination of the retrofit.
11. NRS 338.1385 and 338.143
do not apply to a project for which a
request for proposals is advertised and the contract is awarded pursuant
to the provisions of this section.
(Added to NRS by 1993, 912; A 1993, 1439, 2135; 1995, 575, 576;
1999, 2404 ; 2003, 2446 ; 2005, 2893 )
Additional Conditions and Limitations
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)
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)
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
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 )
Repealed. (See chapter 424,
Statutes of Nevada 2005, at page 1815 .)
Repealed. (See chapter 424,
Statutes of Nevada 2005, at page 1815 .)
“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 )
“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 )
“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 )
“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 )
“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 )
Repealed. (See chapter 424,
Statutes of Nevada 2005, at page 1815 .)
Repealed. (See chapter 424,
Statutes of Nevada 2005, at page 1815 .)
Repealed. (See chapter 424,
Statutes of Nevada 2005, at page 1815 .)
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 )
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
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 )
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; or
(b) Relieves a person of an obligation or liability imposed by the
provisions of NRS 338.400 to 338.645
, inclusive,
Ê is void.
(Added to NRS by 1999, 1990 )
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
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 )
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 financial
institutions 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 workman
is owed wages by a contractor or subcontractor, he 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 workman. This
amount must be paid to the workman by the Labor Commissioner if the
matter is resolved in his 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 )
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 )
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 )
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 )
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
Except as
otherwise provided in NRS 338.555 ,
338.560 and 338.565 :
1. Each contractor shall disburse money paid to him pursuant to
this chapter, including any interest which he receives, to his
subcontractors and suppliers within 10 days after he 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 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 )—(Substituted in revision for NRS 338.165)
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, he shall, within
10 days after he 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
)—(Substituted in revision for NRS 338.170)
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 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 he 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 subcontractor or
supplier,
Ê give a written notice to his 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 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
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 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 )
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 subcontractor or supplier in
accordance with the provisions of subsection 1 of NRS 338.550 ;
(b) The contractor fails to give his 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 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 )
Within 5 working days after a contractor receives a written request from
a subcontractor or supplier of his subcontractor or supplier with respect
to a subcontract which has not been fully performed, he shall notify the
subcontractor or supplier of his subcontractor or supplier in writing of
the following:
1. The date the contractor made a specified progress payment or
retainage payment to his subcontractor or supplier;
2. Whether the contractor has paid the entire amount of a
specified progress payment or retainage payment to his subcontractor or
supplier; and
3. The amount withheld by the contractor from a specified progress
payment or retainage payment to his subcontractor or supplier, if any.
(Added to NRS by 1999, 1987 )
Payments Made by Subcontractor to Subcontractors and Suppliers
Except as
otherwise provided in NRS 338.595 ,
338.600 and 338.605 :
1. Each subcontractor shall disburse money paid to him pursuant to
this chapter, including any interest which he receives, to his
subcontractors and suppliers within 10 days after he 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 subcontractor or
supplier in an amount equal to that subcontractor’s or supplier’s basis
in the payments paid by the contractor to him 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 )
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
him for the work performed or supplies provided by his subcontractor or
supplier.
2. If the subcontractor receives a payment of interest earned on
the retainage or an amount withheld from a progress payment, he shall,
within 10 days after receiving the money, pay to each of his
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 subcontractor or
supplier.
(Added to NRS by 1999, 1987 ; A 2003, 2449 )
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 subcontractor or supplier to comply with the subcontract or
applicable building code, law or regulation.
2. A subcontractor shall, within 10 days after he 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 subcontractor or
supplier,
Ê give a written notice to his 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 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 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 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 )
1. If a subcontractor makes payment to his 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 subcontractor or supplier in
accordance with the provisions of subsection 1 of NRS 338.590 ;
(b) The subcontractor fails to give his 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
subcontractor or supplier, signed by an authorized agent of his
subcontractor or supplier, and fails to:
(1) Pay the amount of the progress payment or retainage
payment that was withheld from his 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 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 subcontractor or supplier.
2. If the subcontractor objects pursuant to subparagraph (2) of
paragraph (c) of subsection 1, the subcontractor shall pay to his
subcontractor or supplier an amount that is equal to the value of the
corrections to which he does not object.
(Added to NRS by 1999, 1988 )
Within 5 working days after a subcontractor receives a written request
from a subcontractor or supplier of his subcontractor or supplier with
respect to a subcontract which has not been fully performed, he shall
notify the subcontractor or supplier of his subcontractor or supplier in
writing of the following:
1. The date the subcontractor made a specified progress payment or
retainage payment to his subcontractor or supplier;
2. Whether the subcontractor has paid the entire amount of a
specified progress payment or retainage payment to his subcontractor or
supplier; and
3. The amount withheld by the subcontractor from a specified
progress payment or retainage payment to his subcontractor or supplier,
if any.
(Added to NRS by 1999, 1989 )
Remedies
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 )
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 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 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 )
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 pursuant to the provisions of NRS 338.400 to 338.645 ,
inclusive, his 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 )
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 )
