2005 Nevada Revised Statutes - Chapter 338 — Public Works

Title 28 - PUBLIC WORKS AND PLANNING

CHAPTER 338 - PUBLIC WORKS

GENERAL PROVISIONS

NRS 338.010 Definitions.

NRS 338.011 Applicability:Contracts related to normal operation and normal maintenance; contracts relatedto emergency.

NRS 338.0115 Inapplicabilityof this chapter and chapters 332 and 339 of NRS to certain projects constructed byprivate developers.

NRS 338.012 Regulationsof Labor Commissioner.

EMPLOYMENT

General Provisions

NRS 338.013 Inclusionof identifying number from Labor Commissioner in advertisement for bids;reports by public bodies and contractors to Labor Commissioner.

NRS 338.015 Enforcementby Labor Commissioner and Attorney General.

NRS 338.016 Civilaction to recover damages resulting from commission of offense.

NRS 338.017 Temporarydisqualification of contractor after imposition of administrative penalty;notification of State Contractors Board.

NRS 338.018 Applicabilityto certain contracts for construction work of Nevada System of HigherEducation.

 

Wages

NRS 338.020 Hourlyand daily rate of wages must not be less than prevailing wage in county; ratemust be included in contract and posted on site; payment of overtime; wagespaid in accordance with jurisdictional classes recognized in locality.

NRS 338.030 Procedurefor determination of prevailing wage in county.

NRS 338.035 Dischargeof part of obligation of contractor or subcontractor engaged on public work topay wages by making certain contributions in name of workman.

NRS 338.040 Workmendeemed to be employed on public works.

NRS 338.050 Contractualrelationships: Applicability of NRS 338.010to 338.090, inclusive.

NRS 338.060 Forfeitureswhen workmen paid less than designated rates or willfully reported ininaccurate or incomplete manner or not reported to public body; forfeitureclause in contracts; regulation establishing sliding scale for penalties;recovery of investigative costs and attorneys fees; waiver or reduction ofpenalty.

NRS 338.070 Investigationsof violations by public bodies; withholding of certain sums by public bodiesand contractors; maintenance and inspection of records regarding employees;penalty for noncompliance.

NRS 338.075 Applicabilityto certain contracts for construction work of Nevada System of HigherEducation.

NRS 338.080 Exemptions.

NRS 338.090 Penalties.

 

Employment Practices

NRS 338.125 Fairemployment practices: Contents of contracts concerning public works; breach ofcontract.

NRS 338.130 Preferentialemployment in construction of public works.

NRS 338.135 Rentalor lease of trucks or truck and trailer combinations by contractors orsubcontractors: Hourly rate for vehicle and services of driver.

PROCEDURES FOR AWARDING CONTRACTS

Limitations on General Applicability of Provisions

NRS 338.1373 Optionof local governments to comply with alternative procedures; inapplicability ofcertain provisions to contracts awarded by Department of Transportation.

 

Qualification of Bidders; Qualification of Subcontractors on StatePublic Works

NRS 338.1375 StatePublic Works Board: Acceptance of bids from qualified bidders only; adoptionand use of criteria for qualification of bidders.

NRS 338.1376 Qualificationof subcontractors on contracts awarded by State Public Works Board required;methods of qualification; disqualification; appeal.

NRS 338.1377 Localgovernments: Adoption of criteria for qualification of bidders.

NRS 338.1378 Advertisementrequired before local government may accept applications for qualification ofbidders.

NRS 338.1379 Submissionof application to qualify as bidder; investigation of applicant; determination;notice; period of qualification; use of criteria; confidentiality of certainfinancial information concerning applicant.

NRS 338.1381 Procedureupon appeal of denial of application to qualify as bidder or disqualificationof subcontractor.

NRS 338.1382 Alternativeprocedure for qualification of bidders by local government.

 

Advertising; Acceptance of Bids; Award of Contract

NRS 338.1385 Advertisingfor bids and compliance with certain provisions required for commencement ofcertain public works; quarterly reports of awarded contracts by authorizedrepresentatives; availability of plans and specifications for publicinspection; award of contract to lowest responsive and responsible bidder;rejection of bids; authority to award contract without competitive bidding ifno bids received in response to advertisement for bids in certaincircumstances; requirements before public body may commence public work itself;exemptions. [Effective through April 30, 2013.]

NRS 338.1385 Advertisingfor bids and compliance with certain provisions required for commencement ofcertain public works; quarterly reports of awarded contracts by authorizedrepresentatives; availability of plans and specifications for publicinspection; award of contract to lowest responsive and responsible bidder;rejection of bids; authority to award contract without competitive bidding ifno bids received in response to advertisement for bids in certain circumstances;requirements before public body may commence public work itself; exemptions.[Effective May 1, 2013.]

NRS 338.1386 Stateor local government to award contract for smaller public work to contractor orperform public work itself.

NRS 338.13862 Requirementsfor awarding contract for smaller public work to contractor.

NRS 338.13864 Attestationrequired before State or local government may perform certain smaller publicworks itself.

NRS 338.1389 Contractfor public work for which estimated cost exceeds $250,000 must be awarded tocontractor who submits best bid; certain bids deemed best bid; eligibility toreceive preference in bidding; issuance of certificate of eligibility by StateContractors Board; regulations; fees; sanctions; objections.

NRS 338.13895 Awardof contract to unlicensed or improperly licensed contractor prohibited;replacement of unacceptable subcontractor before contract is awarded;rescission of award of contract to unlicensed or improperly licensed contractorbefore commencement of work.

NRS 338.139 Awardingof contract to specialty contractor: Conditions.

ADDITIONAL PROCEDURES, CONDITIONS AND LIMITATIONS RELATING TOCONTRACTS

General Provisions

NRS 338.140 Draftingof specifications for bids: Limitations; confidentiality of documents generatedby bidder in preparation or determination of prices included in bid.

NRS 338.141 Bidsto include certain information concerning subcontractors; when bids deemed notresponsive with respect to subcontractors; requirements for substitution ofnamed subcontractors.

NRS 338.142 Noticeof protest of award of contract: Period for filing; contents; posting anddisposition of bond or security; stay of action; immunity of public body fromliability to bidder.

 

Alternative Procedures for Local Governments

NRS 338.143 Advertisingfor bids and compliance with certain provisions required for commencement ofcertain public works; quarterly reports of awarded contracts by authorizedrepresentatives; availability of plans and specifications for publicinspection; award of contract to lowest responsive and responsible bidder;rejection of bids; authority to award contract without competitive bidding ifno bids received in response to advertisement for bids in certaincircumstances; requirements before local government may commence public workitself; exemptions. [Effective through April 30, 2013.]

NRS 338.143 Advertisingfor bids and compliance with certain provisions required for commencement ofcertain public works; quarterly reports of awarded contracts by authorizedrepresentatives; availability of plans and specifications for publicinspection; award of contract to lowest responsive and responsible bidder;rejection of bids; authority to award contract without competitive bidding ifno bids received in response to advertisement for bids in certaincircumstances; requirements before local government may commence public workitself; exemptions. [Effective May 1, 2013.]

NRS 338.1442 Localgovernment to award contract for smaller public work to contractor or performpublic work itself.

NRS 338.1444 Requirementsfor awarding contract for smaller public work to contractor.

NRS 338.1446 Attestationrequired before local government may perform certain smaller public worksitself.

NRS 338.147 Contractfor public work for which estimated cost exceeds $250,000 must be awarded tocontractor who submits best bid; certain bids deemed best bid; eligibility toreceive preference in bidding; issuance of certificate of eligibility by StateContractors Board; regulations; fees; sanctions; objections.

NRS 338.1475 Awardof contract to unlicensed or improperly licensed contractor prohibited;replacement of unacceptable subcontractor before contract is awarded;rescission of award of contract to unlicensed or improperly licensed contractorbefore commencement of work.

NRS 338.148 Awardingof contract to specialty contractor: Conditions.

 

Provisions Required in Contracts

NRS 338.150 Provisionsrequiring arbitration of disputes; use of alternate dispute resolution methodsbefore arbitration not prohibited.

NRS 338.153 Provisionrequiring persons who provide labor, equipment, materials, supplies or servicesfor public work to comply with all applicable state and local laws.

NRS 338.155 Provisionsrelating to design professional who is not member of design-build team.

CONTRACTS FOR TRANSPORTATION FACILITIES

NRS 338.161 Transportationfacility defined.

NRS 338.162 Alternativemethods of authorization.

NRS 338.163 Submissionof request to public body; contents of request.

NRS 338.164 Requestfor submission of proposals by public body.

NRS 338.166 Approvalof request or proposal: Determination of public purpose; staff reports; copy ofrequest or proposal to be furnished to affected governmental entities; fee;approval contingent on entering agreement with public body; establishment ofdate for development of or commencement of construction of transportationfacility.

NRS 338.167 Contractfor transportation services.

NRS 338.168 Federal,state or local assistance.

CONTRACTS INVOLVING DESIGN-BUILD TEAMS, PRIME CONTRACTORS ORNONPROFIT ORGANIZATIONS

General Provisions

NRS 338.1711 Contractsfor which public body is required or authorized to enter into with primecontractor or design-build team.

NRS 338.1713 Contractwith design-build team: Public hearing; notice. [Repealed.]

NRS 338.1715 Procedurefor selecting design-build team.

NRS 338.1717 Employmentof architect, landscape architect or engineer as consultant.

 

Procedures for Awarding Contracts to Design-Build Teams

NRS 338.1721 Qualificationsof design-build team.

NRS 338.1723 Advertisementfor preliminary proposals.

NRS 338.1725 Selectionof finalists based on preliminary proposals; availability to public of resultsof evaluations of preliminary proposals and rankings of design-build teams.

NRS 338.1727 Requestfor and submission of final proposals; selection or rejection of finalproposals; awarding of contract; partial reimbursement of unsuccessfulfinalists in certain circumstances; contents of contract; availability topublic of certain information.

NOTIFICATION OF LICENSING BOARDS

NRS 338.175 Substantiallyincomplete or rejected plans submitted by registered architect, interiordesigner, residential designer or landscape architect.

NRS 338.176 Substantiallyincomplete or rejected plans submitted by licensed professional engineer orland surveyor.

DESIGN, CONSTRUCTION, RENOVATION AND DEMOLITION OF PUBLICWORKS

General Provisions

NRS 338.177 Leaseof property acquired by local government for public work pending completion ofpublic work.

NRS 338.180 Accommodationof physically handicapped or disabled persons; verification of conformity withrequirements; enforcement.

NRS 338.185 Publicbody to reimburse contractor for certain costs of locating underground facilityof public utility.

 

Energy and Environmental Design Requirements

NRS 338.187 Standardsfor energy and environmental design. [Effective July 1, 2007.]

NRS 338.190 Analysisof certain public buildings before construction or renovation to estimatecertain costs and to identify measures for conservation of energy and use ofalternative types of energy; requirements for contracts for cost-savingmeasures.

NRS 338.1905 Retrofittingof state buildings for energy efficiency: Appointment of energy retrofitcoordinators and person to assist coordinators. [Expires by limitation on May1, 2013.]

NRS 338.1906 Retrofittingof state buildings for energy efficiency: Duties of energy retrofit coordinatorsand State Board of Examiners; procedures for requesting and approvingproposals; limitation on money committed beyond biennium; restrictions on approvalof change orders to executed contracts; projects exempt from certain proceduralrequirements. [Expires by limitation on May 1, 2013.]

NRS 338.1907 Retrofittingof local governmental buildings for energy efficiency: Duties of energyretrofit coordinators and local governments; procedures for requesting andapproving proposals; restrictions on approval of change orders to executed contracts;projects exempt from certain procedural requirements. [Expires by limitation onMay 1, 2013.]

 

Additional Conditions and Limitations

NRS 338.193 Standardsfor plumbing fixtures.

NRS 338.195 Surveyfor presence of asbestos required before renovation or demolition of publicbuilding.

NRS 338.200 Prohibitionagainst naming public building or structure after member of governing body.

PROGRESS PAYMENTS

General Provisions

NRS 338.400 Definitions.

NRS 338.405 Contractdefined. [Repealed.]

NRS 338.410 Contractordefined. [Repealed.]

NRS 338.415 Progressbill defined.

NRS 338.420 Progresspayment defined.

NRS 338.425 Retainagedefined.

NRS 338.430 Retainagebill defined.

NRS 338.435 Retainagepayment defined.

NRS 338.440 Subcontractdefined. [Repealed.]

NRS 338.445 Subcontractordefined. [Repealed.]

NRS 338.450 Supplierdefined. [Repealed.]

NRS 338.455 Methodsto be used for providing notice.

NRS 338.460 Datesto be used for calculating accrual of interest on retainage.

 

Applicability and Limitations

NRS 338.480 Provisionsinapplicable to certain contracts made by Department of Transportation.

NRS 338.485 Limitations onwaiving certain rights, obligations and liabilities.

NRS 338.490 Limitationson requiring release or waiver of right to receive progress payment orretainage payment.

 

Payments Made by Public Body to Contractor

NRS 338.510 Submittalof progress bills.

NRS 338.515 Timefor making payments; amounts paid; amounts withheld as retainage; rate ofinterest paid on amounts withheld; powers of Labor Commissioner when workman isowed wages.

NRS 338.520 Paymentof outstanding balance upon occupancy, use or recording of notice ofcompletion.

NRS 338.525 Withholdingamounts for failure of contractor to comply with contract or applicablebuilding code, law or regulation; payment of amounts withheld upon confirmationof correction of condition.

NRS 338.530 Paymentof interest on amounts withheld improperly.

NRS 338.535 Publicbody to provide notice concerning progress payments and retainage payments tocertain subcontractors and suppliers.

 

Payments Made by Contractor to Subcontractors and Suppliers

NRS 338.550 Timefor making payments; amounts paid.

NRS 338.555 Amountswithheld as retainage; payment of interest.

NRS 338.560 Withholdingamounts for failure of subcontractor or supplier to comply with subcontract orapplicable building code, law or regulation or for claim for wages againstsubcontractor; payment of amounts withheld upon correction of condition.

NRS 338.565 Paymentof interest on amounts withheld improperly.

NRS 338.570 Contractorto provide notice concerning progress payments and retainage payments tocertain subcontractors and suppliers.

 

Payments Made by Subcontractor to Subcontractors and Suppliers

NRS 338.590 Timefor making payments; amounts paid.

NRS 338.595 Amountswithheld as retainage; payment of interest.

NRS 338.600 Withholdingamounts for failure of subcontractor or supplier to comply with subcontract orapplicable building code, law or regulation; payment of amounts withheld uponcorrection of condition.

NRS 338.605 Paymentof interest on amounts withheld improperly.

NRS 338.610 Subcontractorto provide notice concerning progress payments and retainage payments tocertain subcontractors and suppliers.

 

Remedies

NRS 338.630 Actionby contractor for alternate writ of mandamus to compel performance by publicbody.

NRS 338.635 Actionby subcontractor or supplier to remedy unjustified or excessive withholding.

NRS 338.640 Awardof reasonable costs and attorneys fees to prevailing party.

NRS 338.645 Otherrights and remedies not affected.

_________

GENERAL PROVISIONS

NRS 338.010 Definitions. As used in this chapter:

1. Authorizedrepresentative means a person designated by a public body to be responsiblefor the development, solicitation, award or administration of contracts forpublic works pursuant to this chapter.

2. Contractmeans a written contract entered into between a contractor and a public bodyfor the provision of labor, materials, equipment or supplies for a public work.

3. Contractormeans:

(a) A personwho is licensed pursuant to the provisions of chapter624 of NRS or performs such work that he is not required to be licensedpursuant to chapter 624 of NRS.

(b) Adesign-build team.

4. Day labor means all cases where public bodies,their officers, agents or employees, hire, supervise and pay the wages thereofdirectly to a workman or workmen employed by them on public works by the dayand not under a contract in writing.

5. Design-build contract means a contract between apublic body and a design-build team in which the design-build team agrees todesign and construct a public work.

6. Design-build team means an entity that consistsof:

(a) At least one person who is licensed as a generalengineering 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 personwho 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 practicearchitecture pursuant to chapter 623 of NRS orlandscape architecture pursuant to chapter 623Aof 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 engineerpursuant to chapter 625 of NRS;

(b) A person who is licensed as a professional landsurveyor pursuant to chapter 625 of NRS;

(c) A person who holds a certificate of registration toengage in the practice of architecture, interior design or residential designpursuant to chapter 623 of NRS;

(d) A person who holds a certificate of registration toengage in the practice of landscape architecture pursuant to chapter 623A of NRS; or

(e) A business entity that engages in the practice ofprofessional engineering, land surveying, architecture or landscapearchitecture.

8. Eligible bidder means a person who is:

(a) Found to be a responsible and responsive contractorby a local government or its authorized representative which requests bids fora public work in accordance with paragraph (b) of subsection 1 of NRS 338.1373; or

(b) Determined by a public body or its authorizedrepresentative which awarded a contract for a public work pursuant to NRS 338.1375 to 338.139, inclusive, to be qualified to bidon that contract pursuant to NRS 338.1379or 338.1382.

9. General contractor means a person who is licensedto conduct business in one, or both, of the following branches of thecontracting business:

(a) General engineering contracting, as described insubsection 2 of NRS 624.215.

(b) General building contracting, as described insubsection 3 of NRS 624.215.

10. Governing body means the board, council,commission or other body in which the general legislative and fiscal powers ofa local government are vested.

11. Local government means every politicalsubdivision or other entity which has the right to levy or receive money fromad valorem or other taxes or any mandatory assessments, and includes, withoutlimitation, counties, cities, towns, boards, school districts and otherdistricts organized pursuant to chapters 244A,309, 318, 379, 474, 538, 541, 543 and 555 ofNRS, NRS 450.550 to 450.750, inclusive, and any agency ordepartment of a county or city which prepares a budget separate from that ofthe parent political subdivision. The term includes a person who has beendesignated by the governing body of a local government to serve as itsauthorized representative.

12. Offense means failing to:

(a) Pay the prevailing wage required pursuant to thischapter;

(b) Pay the contributions for unemployment compensationrequired pursuant to chapter 612 of NRS;

(c) Provide and secure compensation for employeesrequired 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 entireproject;

(c) Uses his own workforce to perform all or a part ofthe public work; and

(d) Contracts for the services of any subcontractor orindependent contractor or is responsible for payment to any contractedsubcontractors or independent contractors.

The termincludes, without limitation, a general contractor or a specialty contractorwho 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 politicalsubdivisions sponsoring or financing a public work.

15. Public work means any project for the newconstruction, repair or reconstruction of:

(a) A project financed in whole or in part from publicmoney 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 arefinanced at least in part with public money; and

(10) All other publicly owned works andproperty.

(b) A building for the Nevada System of HigherEducation of which 25 percent or more of the costs of the building as a wholeare paid from money appropriated by this State or from federal money.

16. Specialty contractor means a person who islicensed to conduct business as described in subsection 4 of NRS 624.215.

17. Stand-alone underground utility project means anunderground utility project that is not integrated into a larger project,including, without limitation:

(a) An underground sewer line or an undergroundpipeline for the conveyance of water, including facilities appurtenant thereto;and

(b) A project for the construction or installation of astorm drain, including facilities appurtenant thereto,

that is notlocated at the site of a public work for the design and construction of which apublic body is authorized to contract with a design-build team pursuant tosubsection 2 of NRS 338.1711.

18. Subcontractmeans a written contract entered into between:

(a) Acontractor and a subcontractor or supplier; or

(b) Asubcontractor and another subcontractor or supplier,

for the provision of labor,materials, equipment or supplies for a construction project.

19. Subcontractormeans a person who:

(a) Is licensedpursuant to the provisions of chapter 624 ofNRS or performs such work that he is not required to be licensed pursuant to chapter 624 of NRS; and

(b) Contractswith 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, equipmentor supplies for a construction project.

21. Wages means:

(a) The basic hourly rate of pay; and

(b) The amount of pension, health and welfare, vacationand holiday pay, the cost of apprenticeship training or other similar programsor other bona fide fringe benefits which are a benefit to the workman.

22. Workman means a skilled mechanic, skilledworkman, semiskilled mechanic, semiskilled workman or unskilled workman in theservice of a contractor or subcontractor under any appointment or contract ofhire or apprenticeship, express or implied, oral or written, whether lawfullyor unlawfully employed. The term does not include a design professional.

[1 1/2:139:1937; added 1941, 389; 1931 NCL 6179.511/2](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)

NRS 338.011 Applicability:Contracts related to normal operation and normal maintenance; contracts relatedto emergency. The requirements of this chapterdo not apply to a contract:

1. Awarded in compliance with chapter 332 or 333of NRS which is directly related to the normal operation of the public body orthe normal maintenance of its property.

2. Awarded to meet an emergency which results from anatural or man-made disaster and which threatens the health, safety or welfareof the public. If the public body or its authorized representative determinesthat an emergency exists, a contract or contracts necessary to contend with theemergency may be let without complying with the requirements of this chapter.If such emergency action was taken by the authorized representative, theauthorized representative shall report the contract or contracts to the publicbody at the next regularly scheduled meeting of the public body.

(Added to NRS by 1981, 526; A 2003, 2414)

NRS 338.0115 Inapplicabilityof this chapter and chapters332 and 339of NRS to certain projects constructed by private developers.

1. Except as otherwise provided in subsection 2, theprovisions of this chapter and chapters 332and 339 of NRS do not apply to a contractunder 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 contributionor refund from a public body as reimbursement for a portion of the costs of theproject.

2. If, pursuant to the provisions of such a contract,the developer is not responsible for paying all of the initial constructioncosts of the project, the provisions of NRS 338.013to 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)

NRS 338.012 Regulationsof Labor Commissioner. The Labor Commissionermay adopt such regulations as are necessary to enable him to carry out hisduties pursuant to the provisions of this chapter.

(Added to NRS by 1983, 1361)

EMPLOYMENT

General Provisions

NRS 338.013 Inclusionof identifying number from Labor Commissioner in advertisement for bids; reports by public bodies andcontractors to Labor Commissioner.

1. A public body that advertises for bids for a publicwork shall request from the Labor Commissioner, and include in theadvertisement, an identifying number with his designation of the work. Thatnumber must be included in any bid submitted in response to the advertisement.

2. Each public body which awards a contract for anypublic work shall report its award to the Labor Commissioner within 10 daysafter the award, giving the name and address of the contractor to whom thepublic body awarded the contract and the identifying number for the publicwork.

3. Each contractor engaged on a public work shallreport to the Labor Commissioner and the public body that awarded the contractthe name and address of each subcontractor whom he engages for work on theproject within 10 days after the subcontractor commences work on the contractand the identifying number for the public work.

4. The public body which awarded the contract shallreport the completion of all work performed under the contract to the LaborCommissioner before the final payment of money due the contractor by the publicbody.

(Added to NRS by 1977, 789; A 1985, 2039; 1997, 3081;2003, 2414)

NRS 338.015 Enforcementby Labor Commissioner and Attorney General.

1. The Labor Commissioner shall enforce the provisionsof NRS 338.010 to 338.130, inclusive.

2. In addition to any other remedy or penalty providedin this chapter, if any person, including, without limitation, a public body,violates any provision of NRS 338.010 to338.130, inclusive, or any regulationadopted pursuant thereto, the Labor Commissioner may, after providing theperson with notice and an opportunity for a hearing, impose against the personan 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 determinethe amount of the administrative penalty to be imposed against the personpursuant to this section.

4. The Labor Commissioner shall report the violationto the Attorney General, and the Attorney General may prosecute the person inaccordance with law.

(Added to NRS by 1973, 874; A 1993, 2248; 2001, 1146; 2003, 798; 2005, 202)

NRS 338.016 Civilaction to recover damages resulting from commission of offense.

1. If, after an opportunity for a hearing, anadministrative penalty is imposed against a contractor on a public work for thecommission of an offense:

(a) An eligible bidder, or any person who entered intoa contract with the eligible bidder before bids for the contract for the publicwork were let, may commence a civil action against the contractor to recoverdamages suffered as a proximate result of the eligible bidder not being awardedthe contract for the public work.

(b) There is a rebuttable presumption that thecontractor was awarded the contract for the public work because his bid on thecontract was based, in part, on his intent to commit the offense and, as aresult, was lower than it otherwise would have been.

2. The court may award costs and reasonable attorneysfees to the prevailing party in any action brought pursuant to this section.

(Added to NRS by 1993, 2247; A 2003, 799)

NRS 338.017 Temporarydisqualification of contractor after imposition of administrative penalty;notification of State Contractors Board. Ifany administrative penalty is imposed against a person for the commission of anoffense:

1. That person, and the corporate officers, if any, ofthat person, may not be awarded a contract for a public work:

(a) For the first offense, for a period of 3 yearsafter the date of the imposition of the administrative penalty; and

(b) For the second or subsequent offense, for a periodof 5 years after the date of the imposition of the administrative penalty.

2. The Labor Commissioner shall notify the StateContractors Board of each contractor who is prohibited from being awarded acontract for a public work pursuant to this section.

(Added to NRS by 1993, 2247; A 2001, 1146; 2003, 2145)

NRS 338.018 Applicabilityto certain contracts for construction work of Nevada System of HigherEducation. The provisions of NRS 338.013 to 338.018, inclusive, apply to any contractfor construction work of the Nevada System of Higher Education for which theestimated cost exceeds $100,000 even if the construction work does not qualifyas a public work, as defined in subsection 15 of NRS 338.010.

(Added to NRS by 2005, 2890)

Wages

NRS 338.020 Hourlyand daily rate of wages must not be less than prevailing wage in county; ratemust be included in contract and posted on site; payment of overtime; wagespaid in accordance with jurisdictional classes recognized in locality.

1. Every contract to which a public body of this Stateis a party, requiring the employment of skilled mechanics, skilled workmen,semiskilled mechanics, semiskilled workmen or unskilled labor in theperformance of public work, must contain in express terms the hourly and dailyrate of wages to be paid each of the classes of mechanics and workmen. Thehourly and daily rate of wages must:

(a) Not be less than the rate of such wages thenprevailing in the county in which the public work is located, which prevailingrate 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 placegenerally visible to the workmen.

2. When public work is performed by day labor, theprevailing wage for each class of mechanics and workmen so employed applies andmust be stated clearly to such mechanics and workmen when employed.

3. Except as otherwise provided in subsection 4, acontractor or subcontractor shall pay to a mechanic or workman employed by thecontractor or subcontractor on the public work not less than one and one-halftimes the prevailing rate of wages applicable to the class of the mechanic orworkman for each hour the mechanic or workman works on the public work inexcess of:

(a) Forty hours in any scheduled week of work by themechanic or workman for the contractor or subcontractor, including, withoutlimitation, hours worked for the contractor or subcontractor on work other thanthe public work; or

(b) Eight hours in any workday that the mechanic orworkman was employed by the contractor or subcontractor, including, withoutlimitation, hours worked for the contractor or subcontractor on work other thanthe public work, unless by mutual agreement the mechanic or workman works ascheduled 10 hours per day for 4 calendar days within any scheduled week ofwork.

4. The provisions of subsection 3 do not apply to amechanic or workman who is covered by a collective bargaining agreement thatprovides for the payment of wages at not less than one and one-half times therate of wages set forth in the collective bargaining agreement for work inexcess of:

(a) Forty hours in any scheduled week of work; or

(b) Eight hours in any workday unless the collectivebargaining agreement provides that the mechanic or workman shall work ascheduled 10 hours per day for 4 calendar days within any scheduled week ofwork.

5. The prevailing wage and any wages paid for overtimepursuant to subsection 3 or 4 to each class of mechanics or workmen must be inaccordance with the jurisdictional classes recognized in the locality where thework is performed.

6. Nothing in this section prevents an employer who issignatory to a collective bargaining agreement from assigning such work inaccordance with established practice.

[1:139:1937; A 1941, 389; 1931 NCL 6179.51](NRS A1969, 736; 1973, 874; 1983, 131; 1985, 2040; 2003, 1741; 2005, 812)

NRS 338.030 Procedurefor determination of prevailing wage in county.

1. The public body awarding any contract for publicwork, or otherwise undertaking any public work, shall ascertain from the LaborCommissioner the prevailing wage in the county in which the public work is tobe 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, surveycontractors who have performed work in the county. Within 30 days after thedetermination is issued:

(a) A public body or person entitled under subsection 5to be heard may submit an objection to the Labor Commissioner with evidence tosubstantiate that a different wage prevails; and

(b) Any person may submit information to the LaborCommissioner that would support a change in the prevailing wage of a craft ortype of work by 50 cents or more per hour in any county.

3. The Labor Commissioner shall hold a hearing in thelocality 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 tosubsection 2.

The LaborCommissioner may hold only one hearing a year on the prevailing wage of anycraft or type of work in any county.

4. Notice of the hearing must be advertised in anewspaper nearest to the locality of the work once a week for 2 weeks beforethe time of the hearing.

5. At the hearing, any public body, the craftsaffiliated with the State Federation of Labor or other recognized nationallabor organizations, and the contractors of the locality or theirrepresentatives must be heard. From the evidence presented, the LaborCommissioner shall determine the prevailing wage.

6. The wages so determined must be filed by the LaborCommissioner and must be available to any public body which awards a contractfor any public work.

7. Nothing contained in NRS 338.020 to 338.090, inclusive, may be construed toauthorize the fixing of any wage below any rate which may now or hereafter beestablished as a minimum wage for any person employed upon any public work, oremployed by any officer or agent of any public body.

[2:139:1937; 1931 NCL 6179.52](NRS A 1985, 2040; 2001, 1147; 2003, 2414)

NRS 338.035 Dischargeof part of obligation of contractor or subcontractor engaged on public work topay wages by making certain contributions in name of workman. The obligation of a contractor engaged on a public work ora subcontractor engaged on a public work to pay wages in accordance with thedetermination of the Labor Commissioner may be discharged in part by makingcontributions to a third person pursuant to a fund, plan or program in the nameof the workman.

(Added to NRS by 1983, 1574; A 2003, 2415; 2005, 813)

NRS 338.040 Workmendeemed to be employed on public works.

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 thepublic work,

are deemedto be employed on public works.

2. The Labor Commissioner shall adopt regulations todefine 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 thepublic work.

[3:139:1937; A 1941, 389; 1931 NCL 6179.53](NRS A 2001, 1147)

NRS 338.050 Contractualrelationships: Applicability of NRS 338.010 to 338.090,inclusive. For the purpose of NRS 338.010 to 338.090, inclusive, except as otherwiseprovided by specific statute, every workman who performs work for a public workcovered by a contract therefor is subject to all of the provisions of NRS 338.010 to 338.090, inclusive, regardless of anycontractual relationship alleged to exist between such workman and hisemployer.

[4:139:1937; A 1941, 389; 1931 NCL 6179.54](NRS A 2001, 1148; 2005, 2891)

NRS 338.060 Forfeitureswhen workmen paid less than designated rates or willfully reported ininaccurate or incomplete manner or not reported to public body; forfeitureclause in contracts; regulation establishing sliding scale for penalties;recovery of investigative costs and attorneys fees; waiver or reduction ofpenalty.

1. Except as otherwise provided in subsection 8, acontractor engaged on a public work shall forfeit, as a penalty to the publicbody on behalf of which the contract has been made and awarded to thecontractor, not less than $20 nor more than $50 for each calendar day orportion thereof that each workman employed on the public work is paid less thanthe designated rate for any work done under the contract, by the contractor orany subcontractor engaged on the public work.

2. Except as otherwise provided in subsection 8, acontractor engaged on a public work shall forfeit, as a penalty to the publicbody on behalf of which the contract has been made and awarded to thecontractor, not less than $20 nor more than $50 for each calendar day orportion thereof for each workman employed on the public work for which thecontractor or subcontractor willfully included inaccurate or incompleteinformation in the monthly record required to be submitted to the public bodypursuant to subsection 5 of NRS 338.070.

3. Except as otherwise provided in subsection 8, acontractor engaged on a public work shall forfeit, as a penalty to the publicbody on behalf of which the contract has been made and awarded to thecontractor, not less than $20 nor more than $50 for each calendar day orportion thereof that each workman employed on the public work is not reportedto the public body awarding the contract by the contractor or any subcontractorengaged 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 ofthe contract for the public work, $1,000; and

(b) For each subsequent failure to comply during theterm of the contract for the public work, $5,000.

4. Except as otherwise provided in subsection 8, if aviolation of more than one provision of subsections 1, 2 and 3 involves thesame workman, the contractor shall forfeit the penalty set forth in eachsubsection that was violated.

5. A public body awarding a contract for a public workshall cause a stipulation setting forth the penalties specified in subsections1 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 contractorengaged on a public work to determine the amount of the penalty to be imposedpursuant to subsections 1 and 2.

7. If a penalty is imposed pursuant to this section,the costs of the proceeding, including investigative costs and attorneys 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 A1993, 896; 1997, 3355; 2001,1148; 2003, 1862,2415)

NRS 338.070 Investigationsof violations by public bodies; withholding of certain sums by public bodiesand contractors; maintenance and inspection of records regarding employees;penalty for noncompliance.

1. Any public body awarding a contract shall:

(a) Investigate possible violations of the provisionsof NRS 338.010 to 338.090, inclusive, committed in the courseof the execution of the contract, and determine whether a violation has beencommitted and inform the Labor Commissioner of any such violations; and

(b) When making payments to the contractor engaged onthe public work of money becoming due under the contract, withhold and retainall 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 theawarding public body.

3. Except as otherwise provided in subsection 6, it islawful for any contractor engaged on a public work to withhold from anysubcontractor engaged on the public work sufficient sums to cover any penaltieswithheld from the contractor by the awarding public body on account of thefailure of the subcontractor to comply with the terms of NRS 338.010 to 338.090, inclusive. If payment has alreadybeen made to the subcontractor, the contractor may recover from thesubcontractor the amount of the penalty or forfeiture in a suit at law.

4. A contractor engaged on a public work and eachsubcontractor engaged on the public work shall keep or cause to be kept anaccurate record showing the name, the occupation and the actual per diem, wagesand benefits paid to each workman employed by the contractor and subcontractorin connection with the public work.

5. The record maintained pursuant to subsection 4 mustbe open at all reasonable hours to the inspection of the public body awardingthe contract. The contractor engaged on the public work or subcontractorengaged on the public work shall ensure that a copy of the record for eachcalendar month is received by the public body awarding the contract no laterthan 15 days after the end of the month. The copy must be open to publicinspection as provided in NRS 239.010.The record in the possession of the public body awarding the contract may bediscarded by the public body 2 years after final payment is made by the publicbody for the public work.

6. A contractor engaged on a public work shall notwithhold from a subcontractor engaged on the public work the sums necessary tocover any penalties provided pursuant to subsection 3 of NRS 338.060 that may be withheld from thecontractor by the public body awarding the contract because the public body didnot receive a copy of the record maintained by the subcontractor pursuant tosubsection 4 for a calendar month by the time specified in subsection 5 if:

(a) The subcontractor provided to the contractor, forsubmission to the public body by the contractor, a copy of the record not laterthan the later of:

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

(2) A date agreed upon by the contractor andsubcontractor; and

(b) The contractor failed to submit the copy of therecord to the public body by the time specified in subsection 5.

Nothing inthis subsection prohibits a subcontractor from submitting a copy of a recordfor a calendar month directly to the public body by the time specified in subsection5.

7. Any contractor or subcontractor, or agent orrepresentative thereof, performing work for a public work who neglects tocomply 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)

NRS 338.075 Applicabilityto certain contracts for construction work of Nevada System of HigherEducation. The provisions of NRS 338.020 to 338.090, inclusive, apply to any contractfor construction work of the Nevada System of Higher Education for which theestimated cost exceeds $100,000 even if the construction work does not qualifyas a public work, as defined in subsection 15 of NRS 338.010.

(Added to NRS by 2005, 2890)

NRS 338.080 Exemptions. None of the provisions of NRS 338.020 to 338.090, inclusive, apply to:

1. Any work, construction, alteration, repair or otheremployment performed, undertaken or carried out, by or for any railroad companyor any person operating the same, whether such work, construction, alterationor repair is incident to or in conjunction with a contract to which a publicbody 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 lessthan $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 thecost of the project below $100,000.

[9:139:1937; 1931 NCL 6179.59] + [8:169:1941; 1931NCL 6179.62](NRS A 1967, 34; 1985, 2041; 2003, 2416)

NRS 338.090 Penalties.

1. Any person, including the officers, agents oremployees of a public body, who violates any provision of NRS 338.010 to 338.090, inclusive, or any regulationadopted pursuant thereto, is guilty of a misdemeanor.

2. The Labor Commissioner, in addition to any otherremedy or penalty provided in this chapter:

(a) Shall assess a person who, after an opportunity fora hearing, is found to have failed to pay the prevailing wage required pursuantto NRS 338.020 to 338.090, inclusive, an amount equal to thedifference between the prevailing wages required to be paid and the wages thatthe contractor or subcontractor actually paid; and

(b) May, in addition to any other administrativepenalty, impose an administrative penalty not to exceed the costs incurred bythe Labor Commissioner to investigate and prosecute the matter.

3. If the Labor Commissioner finds that a person hasfailed to pay the prevailing wage required pursuant to NRS 338.020 to 338.090, inclusive, the public body may, inaddition to any other remedy or penalty provided in this chapter, require theperson to pay the actual costs incurred by the public body to investigate thematter.

[7 1/2:139:1937; A 1941, 389; 1931 NCL 6179.571/2](NRS A 1967, 553; 1985, 2041; 1993, 2248; 2001, 1149; 2003, 799, 2417)

Employment Practices

NRS 338.125 Fairemployment practices: Contents of contracts concerning public works; breach ofcontract.

1. It is unlawful for any contractor in connectionwith the performance of work under a contract with a public body, when paymentof the contract price, or any part of such payment, is to be made from publicmoney, to refuse to employ or to discharge from employment any person becauseof his race, color, creed, national origin, sex, sexual orientation or age, orto discriminate against a person with respect to hire, tenure, advancement,compensation or other terms, conditions or privileges of employment because ofhis race, creed, color, national origin, sex, sexual orientation or age.

2. Contracts between contractors and public bodiesmust contain the following contractual provisions:

 

In connection with theperformance of work under this contract, the contractor agrees not todiscriminate 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 orother forms of compensation, and selection for training, including, withoutlimitation, apprenticeship.

The contractor further agreesto insert this provision in all subcontracts hereunder, except subcontracts forstandard commercial supplies or raw materials.

 

3. Any violation of such provision by a contractorconstitutes a material breach of contract.

4. As used in this section, sexual orientation meanshaving 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)

NRS 338.130 Preferentialemployment in construction of public works.

1. In all cases where persons are employed in theconstruction of public works, preference must be given, the qualifications ofthe applicants being equal:

(a) First: To persons who:

(1) Have been honorably discharged from theArmy, Navy, Air Force, Marine Corps or Cost Guard of the United States, areserve 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 toprevent the working of prisoners by a public body on a public work.

3. In each contract for the construction of publicworks, a clause must be inserted to the effect that if the provisions of thissection are not complied with by the contractor engaged on the public work, thecontract is void, and any failure or refusal to comply with any of theprovisions of this section renders any such contract void. All boards,commissions, officers, agents and employees having the power to enter intocontracts for the expenditure of public money on public works shall file in theOffice of the Labor Commissioner the names and addresses of all contractors holdingcontracts with the public body, and upon the letting of new contracts, thenames and addresses of such new contractors must likewise be filed with theLabor Commissioner. Upon the demand of the Labor Commissioner, a contractorshall furnish a list of the names and addresses of all subcontractors employedby the contractor engaged on a public work.

4. Subject to the exceptions contained in thissection, no money may be paid out of the State Treasury or out of the treasuryof any political subdivision of the State to any person employed on any workmentioned in this section unless there has been compliance with the provisionsof this section.

5. Any contractor engaged on a public work or anyother person who violates any of the provisions of this section is guilty of amisdemeanor. The penalties provided for in this section do not apply whereviolations thereof are due to misrepresentations made by the employee oremployees.

[Part 1:168:1919; A 1921, 205; 1929, 89; NCL 6173]+ [2:168:1919; A 1921, 205; NCL 6174] + [3:168:1919; 1919 RL p. 2965; NCL 6175] + [Part 4:168:1919; A 1921, 205; NCL 6176](NRS A 1967, 554; 1971, 209;2003, 2418; 2005, 22)

NRS 338.135 Rentalor lease of trucks or truck and trailer combinations by contractors orsubcontractors: Hourly rate for vehicle and services of driver. Where a truck or truck and trailer combination is rentedor leased after April 22, 1969, by a contractor or subcontractor on a publicwork, the hourly rate for the rental or lease of such truck or truck andtrailer combination must, when added to the prevailing rate of wages requiredby NRS 338.020 for the driver, not beless than the hourly rate for similar vehicles with a driver as such hourlyrate appears in freight tariffs approved by the Transportation ServicesAuthority 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

NRS 338.1373 Optionof local governments to comply with alternative procedures; inapplicability ofcertain provisions to contracts awarded by Department of Transportation.

1. A local government or its authorized representativeshall award a contract for a public work pursuant to the provisions of:

(a) NRS 338.1377to 338.139, inclusive;

(b) NRS 338.143to 338.148, inclusive; or

(c) NRS 338.1711to 338.1727, inclusive.

2. The provisions of NRS 338.1375 to 338.1382, inclusive, 338.1386, 338.13862, 338.13864, 338.139, 338.142and 338.1711 to 338.1727, inclusive, do not apply withrespect to contracts for the construction, reconstruction, improvement andmaintenance of highways that are awarded by the Department of Transportationpursuant 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 Subcontractorson State Public Works

NRS 338.1375 StatePublic Works Board: Acceptance of bids from qualified bidders only; adoptionand use of criteria for qualification of bidders.

1. The State Public Works Board shall not accept a bidon a contract for a public work unless the contractor who submits the bid hasqualified pursuant to NRS 338.1379 tobid on that contract.

2. The State Public Works Board shall by regulationadopt criteria for the qualification of bidders on contracts for public worksof this State. The criteria adopted by the State Public Works Board pursuant tothis section must be used by the State Public Works Board to determine thequalification of bidders on contracts for public works of this State.

3. The criteria adopted by the State Public WorksBoard pursuant to this section:

(a) Must be adopted in such a form that thedetermination of whether an applicant is qualified to bid on a contract for apublic work does not require or allow the exercise of discretion by any oneperson.

(b) May include only:

(1) The financial ability of the applicant toperform a contract;

(2) The principal personnel of the applicant;

(3) Whether the applicant has breached anycontracts with a public body or person in this State or any other state;

(4) Whether the applicant has been disqualifiedfrom being awarded a contract pursuant to NRS338.017 or 338.13895;

(5) The performance history of the applicantconcerning other recent, similar contracts, if any, completed by the applicant;and

(6) The truthfulness and completeness of theapplication.

(Added to NRS by 1999, 2390; A 2001, 1930; 2003, 2128, 2419)

NRS 338.1376 Qualificationof subcontractors on contracts awarded by State Public Works Board required;methods of qualification; disqualification; appeal.

1. Each subcontractor whose name is required to beincluded in a bid pursuant to NRS 338.141must, to be eligible to provide labor or a portion of the work or improvementto a contractor to whom the State Public Works Board awards a contract pursuantto this chapter, be qualified in accordance with criteria established by regulationby the State Public Works Board. The criteria established by the State PublicWorks Board pursuant to this subsection must be made applicable to asubcontractor but must otherwise be substantively identical to the criteria setforth in paragraph (b) of subsection 3 of NRS338.1375.

2. A subcontractor shall be presumed to be qualifiedpursuant to subsection 1 unless the State Public Works Board has receivedinformation that:

(a) The State Public Works Board determines to besufficient and verifiable; and

(b) Indicates the subcontractor does not meet thecriteria established by regulation pursuant to subsection 1.

3. Upon receipt of sufficient and verifiableinformation of a type described in subsection 2, the State Public Works Boardshall require a subcontractor regarding whom such information is received tosubmit to the State Public Works Board, on a form prescribed by the StatePublic Works Board, an application for qualification in accordance with thecriteria established by regulation pursuant to subsection 1. After receivingsuch an application, the State Public Works Board shall determine whether thesubcontractor is qualified in accordance with the criteria established by regulationpursuant to subsection 1. Except as otherwise provided in subsection 4, if theState Public Works Board determines that the subcontractor does not meet suchcriteria, the State Public Works Board may disqualify the subcontractor, for aperiod set by the State Public Works Board, from participating in public worksprojects which are sponsored by the State Public Works Board. The State PublicWorks Board shall provide written notice to the subcontractor of any suchdisqualification.

4. A subcontractor may appeal a disqualificationpursuant to subsection 3 in the manner set forth in NRS 338.1381.

(Added to NRS by 2003, 2127)

NRS 338.1377 Localgovernments: Adoption of criteria for qualification of bidders. Exceptas otherwise provided in NRS 338.1382,if a governing body that sponsors or finances a public work elects to awardcontracts for public works pursuant to the provisions of NRS 338.1377 to 338.139, inclusive, the governing bodyshall adopt the following criteria for determining whether a person who hasapplied pursuant to NRS 338.1379 is qualifiedto bid on contracts for public works of the local government:

1. Whether the applicant possesses a validcontractors license of a class corresponding to the work to be required by thelocal government;

2. Whether the applicant has the ability to obtain thenecessary bonding for the work to be required by the local government;

3. Whether the applicant has successfully completed anappropriate number of projects as determined by the local government, but notto exceed five projects, during the 5 years immediately preceding the date ofapplication of similar size, scope or type as the work to be required by thelocal government;

4. Whether the principal personnel employed by theapplicant have the necessary professional qualifications and experience for thework to be required by the local government;

5. Whether the applicant has breached any contractswith a public agency or person in this State or any other state during the 5years immediately preceding the date of application;

6. Whether the applicant has been disqualified frombeing awarded a contract pursuant to NRS338.017 or 338.13895;

7. Whether the applicant has been convicted of aviolation for discrimination in employment during the 2 years immediatelypreceding the date of application;

8. Whether the applicant has the ability to obtain andmaintain insurance coverage for public liability and property damage withinlimits sufficient to protect the applicant and all the subcontractors of theapplicant from claims for personal injury, accidental death and damage toproperty that may arise in connection with the work to be required by the localgovernment;

9. Whether the applicant has established a safetyprogram that complies with the requirements of chapter618 of NRS;

10. Whether the applicant has been disciplined orfined by the State Contractors Board or another state or federal agency forconduct that relates to the ability of the applicant to perform the work to berequired by the local government;

11. Whether, during the 5 years immediately precedingthe date of application, the applicant has filed as a debtor under theprovisions of the United States Bankruptcy Code;

12. Whether the application of the applicant istruthful and complete; and

13. Whether, during the 5 years immediately precedingthe date of application, the applicant has, as a result of causes within thecontrol 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 anychange orders initiated or approved by the person or governmental entity thatawarded the contract or its authorized representative;

(b) Within the time specified by the contract unlessextended by the person or governmental entity that awarded the contract or itsauthorized representative; or

(c) For the amount of money specified in the contractor as modified by any change orders initiated or approved by the person orgovernmental entity that awarded the contract or its authorized representative.

Evidence ofthe failures described in this subsection may include, without limitation, theassessment of liquidated damages against the applicant, the forfeiture of anybonds posted by the applicant, an arbitration award granted against theapplicant or a decision by a court of law against the applicant.

(Added to NRS by 1999, 2390; A 2001, 170, 1931; 2003, 2419, 2491; 2005, 1795)

NRS 338.1378 Advertisementrequired before local government may accept applications for qualification ofbidders.

1. Before a local government accepts applicationspursuant to NRS 338.1379, the localgovernment must, in accordance with subsection 2, advertise in a newspaper thatis:

(a) Qualified pursuant to the provisions of chapter 238 of NRS; and

(b) Published in a county in which the contracts forthe potential public works will be performed or, if no qualified newspaper ispublished in that county, published in a qualified newspaper that is publishedin the State of Nevada and which has a general circulation in the county inwhich 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 21days before applications are to be submitted to the local government; and

(b) Must include:

(1) A description of the potential public worksfor which applications to qualify as a bidder are being accepted;

(2) The time and place at which applications areto be submitted to the local government;

(3) The place at which applications may beobtained; and

(4) Any other information that the localgovernment deems necessary.

(Added to NRS by 2003, 2488; A 2005, 1797)

NRS 338.1379 Submissionof application to qualify as bidder; investigation of applicant; determination;notice; period of qualification; use of criteria; confidentiality of certainfinancial information concerning applicant.

1. Except as otherwise provided in NRS 338.1382, a contractor who wishes toqualify as a bidder on a contract for a public work must submit an applicationto the State Public Works Board or the local government.

2. Upon receipt of an application pursuant tosubsection 1, the State Public Works Board or the local government shall:

(a) Investigate the applicant to determine whether heis qualified to bid on a contract; and

(b) After conducting the investigation, determinewhether the applicant is qualified to bid on a contract. The determination mustbe made within 45 days after receipt of the application.

3. The State Public Works Board or the localgovernment shall notify each applicant in writing of its determination. If anapplication is denied, the notice must set forth the reasons for the denial andinform the applicant of his right to a hearing pursuant to NRS 338.1381.

4. The State Public Works Board or the localgovernment 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 tobe determined by the State Public Works Board or the local government.

5. The State Public Works Board shall not use anycriteria other than criteria adopted by regulation pursuant to NRS 338.1375 in determining whether toapprove or deny an application.

6. The local government shall not use any criteriaother than the criteria described in NRS338.1377 in determining whether to approve or deny an application.

7. Financial information and other data pertaining tothe net worth of an applicant which is gathered by or provided to the StatePublic Works Board or a local government to determine the financial ability ofan applicant to perform a contract is confidential and not open to publicinspection.

(Added to NRS by 1999, 2391; A 2001, 1931; 2003, 2421, 2493; 2005, 1797)

NRS 338.1381 Procedureupon appeal of denial of application to qualify as bidder or disqualificationof subcontractor.

1. If, within 10 days after receipt of the noticedenying an application pursuant to NRS338.1379 or disqualifying a subcontractor pursuant to NRS 338.1376, the applicant orsubcontractor, as applicable, files a written request for a hearing with theState Public Works Board or the local government, the Board or governing bodyshall 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 therequest for a hearing unless the parties, by written stipulation, agree toextend the time.

2. The hearing must be held at a time and placeprescribed by the Board or local government. At least 10 days before the dateset for the hearing, the Board or local government shall serve the applicant orsubcontractor with written notice of the hearing. The notice may be served bypersonal delivery to the applicant or subcontractor or by certified mail to thelast known business or residential address of the applicant or subcontractor.

3. Theapplicant or subcontractor has the burden at the hearing of proving bysubstantial evidence that the applicant is entitled to be qualified to bid on acontract for a public work, or that the subcontractor is qualified to be asubcontractor on a contract for a public work.

4. Inconducting a hearing pursuant to this section, the Board or governing body may:

(a) Administeroaths;

(b) Taketestimony;

(c) Issuesubpoenas to compel the attendance of witnesses to testify before the Board orgoverning body;

(d) Require theproduction of related books, papers and documents; and

(e) Issuecommissions to take testimony.

5. If a witness refuses to attend or testify orproduce books, papers or documents as required by the subpoena issued pursuantto subsection 4, the Board or governing body may petition the district court toorder the witness to appear or testify or produce the requested books, papersor documents.

6. The Board or governing body shall issue a decisionon the matter during the hearing. The decision of the Board or governing bodyis a final decision for purposes of judicial review.

(Added to NRS by 1999, 2392; A 2003, 2128, 2421, 3515; 2005, 1798)

NRS 338.1382 Alternativeprocedure for qualification of bidders by local government. In lieu of adopting criteria pursuant to NRS 338.1377 and determining thequalification of bidders pursuant to NRS338.1379, a governing body may deem a person to be qualified to bid on:

1. Contracts for public works of the local governmentif the person has been determined by:

(a) The State Public Works Board pursuant to NRS 338.1379 to be qualified to bid oncontracts for public works of the State pursuant to criteria adopted pursuant toNRS 338.1375; or

(b) Another governing body pursuant to NRS 338.1379 to be qualified to bid oncontracts for public works of that local government pursuant to the criteriaset forth in NRS 338.1377.

2. A contract for a public work of the localgovernment if:

(a) The person has been determined by the Department ofTransportation pursuant to NRS 408.333to be qualified to bid on the contract for the public work;

(b) The public work will be owned, operated ormaintained by the Department of Transportation after the public work isconstructed by the local government; and

(c) The Department of Transportation requested thatbidders on the contract for the public work be qualified to bid on the contractpursuant to NRS 408.333.

(Added to NRS by 2003, 2488)

Advertising; Acceptance of Bids; Award of Contract

NRS 338.1385 Advertisingfor bids and compliance with certain provisions required for commencement ofcertain public works; quarterly reports of awarded contracts by authorizedrepresentatives; availability of plans and specifications for publicinspection; award of contract to lowest responsive and responsible bidder;rejection of bids; authority to award contract without competitive bidding ifno bids received in response to advertisement for bids in certaincircumstances; requirements before public body may commence public work itself;exemptions. [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 bodyor its authorized representative that awards a contract for a public work inaccordance with paragraph (a) of subsection 1 of NRS 338.1373 shall not:

(a) Commence a public work for which the estimated costexceeds $100,000 unless it advertises in a newspaper qualified pursuant to chapter 238 of NRS that is published in thecounty where the public work will be performed for bids for the public work. Ifno qualified newspaper is published in the county where the public work will beperformed, the required advertisement must be published in some qualifiednewspaper that is printed in the State of Nevada and has a general circulationin the county.

(b) Commence a public work for which the estimated costis $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 toavoid the requirements of paragraph (a) or (b).

2. At least once each quarter, the authorizedrepresentative of a public body shall report to the public body any contractthat the authorized representative awarded pursuant to subsection 1 in theimmediately preceding quarter.

3. Each advertisement for bids must include aprovision that sets forth the requirement that a contractor must be qualifiedpursuant to NRS 338.1379 or 338.1382 to bid on the contract.

4. Approved plans and specifications for the bids mustbe on file at a place and time stated in the advertisement for the inspectionof 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 itsauthorized representative shall award a contract to the lowest responsive andresponsible bidder.

6. Any bids received in response to an advertisementfor bids may be rejected if the public body or its authorized representativeresponsible 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, equipmentor labor offered does not conform to the approved plans or specifications; or

(d) The public interest would be served by such arejection.

7. A public body may let a contract withoutcompetitive bidding if no bids were received in response to an advertisementfor bids and:

(a) The public body publishes a notice stating that nobids were received and that the contract may be let without further bidding;

(b) The public body considers any bid submitted inresponse to the notice published pursuant to paragraph (a);

(c) The public body lets the contract not less than 7days after publishing a notice pursuant to paragraph (a); and

(d) The contract is awarded to the bidder who hassubmitted the lowest responsive and responsible bid.

8. Before a public body may commence the performanceof a public work itself pursuant to the provisions of this section, based upona determination that the public interest would be served by rejecting any bidsreceived in response to an advertisement for bids, the public body shallprepare and make available for public inspection a written statementcontaining:

(a) A list of all persons, including supervisors, whomthe public body intends to assign to the public work, together with theirclassifications and an estimate of the direct and indirect costs of theirlabor;

(b) A list of all equipment that the public bodyintends to use on the public work, together with an estimate of the number ofhours each item of equipment will be used and the hourly cost to use each itemof equipment;

(c) An estimate of the cost of administrative supportfor 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 allmaterials, supplies, labor and equipment to be used for the public work; and

(e) An estimate of the amount of money the public bodyexpects 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 710of 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 schooldistrict;

(d) The Las Vegas Valley Water District createdpursuant to chapter 167, Statutes of Nevada 1947, the Moapa Valley Water Districtcreated pursuant to chapter 477, Statutes of Nevada 1983 or the Virgin ValleyWater District created pursuant to chapter 100, Statutes of Nevada 1993; or

(e) The design and construction of a public work forwhich 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)

NRS 338.1385 Advertising for bids and compliancewith certain provisions required for commencement of certain public works;quarterly reports of awarded contracts by authorized representatives;availability of plans and specifications for public inspection; award ofcontract to lowest responsive and responsible bidder; rejection of bids;authority to award contract without competitive bidding if no bids received inresponse to advertisement for bids in certain circumstances; requirementsbefore public body may commence public work itself; exemptions. [Effective May1, 2013.]

1. Except as otherwise provided in subsection 9, thisState, or a governing body or its authorized representative that awards acontract 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 costexceeds $100,000 unless it advertises in a newspaper qualified pursuant to chapter 238 of NRS that is published in thecounty where the public work will be performed for bids for the public work. Ifno qualified newspaper is published in the county where the public work will beperformed, the required advertisement must be published in some qualified newspaperthat is printed in the State of Nevada and having a general circulation withinthe county.

(b) Commence a public work for which the estimated costis $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 toavoid the requirements of paragraph (a) or (b).

2. At least once each quarter, the authorized representativeof a public body shall report to the public body any contract that theauthorized representative awarded pursuant to subsection 1 in the immediatelypreceding quarter.

3. Each advertisement for bids must include aprovision that sets forth the requirement that a contractor must be qualifiedpursuant to NRS 338.1379 or 338.1382 to bid on the contract.

4. Approved plans and specifications for the bids mustbe on file at a place and time stated in the advertisement for the inspectionof 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 itsauthorized representative shall award a contract to the lowest responsive andresponsible bidder.

6. Any bids received in response to an advertisementfor bids may be rejected if the public body or its authorized representativeresponsible 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, equipmentor labor offered does not conform to the approved plans or specifications; or

(d) The public interest would be served by such arejection.

7. A public body may let a contract withoutcompetitive bidding if no bids were received in response to an advertisementfor bids and:

(a) The public body publishes a notice stating that nobids were received and that the contract may be let without further bidding;

(b) The public body considers any bid submitted inresponse to the notice published pursuant to paragraph (a);

(c) The public body lets the contract not less than 7days after publishing a notice pursuant to paragraph (a); and

(d) The contract is awarded to the lowest responsiveand responsible bidder.

8. Before a public body may commence the performanceof a public work itself pursuant to the provisions of this section, based upona determination that the public interest would be served by rejecting any bidsreceived in response to an advertisement for bids, the public body shallprepare and make available for public inspection a written statementcontaining:

(a) A list of all persons, including supervisors, whomthe public body intends to assign to the public work, together with theirclassifications and an estimate of the direct and indirect costs of theirlabor;

(b) A list of all equipment that the public bodyintends to use on the public work, together with an estimate of the number ofhours each item of equipment will be used and the hourly cost to use each itemof equipment;

(c) An estimate of the cost of administrative supportfor 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 allmaterials, supplies, labor and equipment to be used for the public work; and

(e) An estimate of the amount of money the public bodyexpects 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 710of 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 schooldistrict;

(d) The Las Vegas Valley Water District createdpursuant to chapter 167, Statutes of Nevada 1947, the Moapa Valley Water Districtcreated pursuant to chapter 477, Statutes of Nevada 1983 or the Virgin ValleyWater District created pursuant to chapter 100, Statutes of Nevada 1993; or

(e) The design and construction of a public work forwhich 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 May1, 2013)

NRS 338.1386 Stateor local government to award contract for smaller public work to contractor orperform public work itself. If the estimatedcost of a public work is $100,000 or less, this State or a local governmentshall:

1. Award a contract for the completion of the publicwork to a properly licensed contractor in accordance with NRS 338.13862; or

2. Perform the public work itself in accordance with NRS 338.13864.

(Added to NRS by 2003, 1984)

NRS 338.13862 Requirementsfor awarding contract for smaller public work to contractor.

1. Before this State or a local government awards acontract for the completion of a public work in accordance with subsection 1 ofNRS 338.1386, the State or the localgovernment must:

(a) If the estimated cost of the public work is morethan $25,000 but not more than $100,000, solicit bids from at least threeproperly licensed contractors; and

(b) If the estimated cost of the public work is $25,000or less, solicit a bid from at least one properly licensed contractor.

2. Any bids received in response to a solicitation forbids made pursuant to this section may be rejected if the State or the localgovernment determines that:

(a) The quality of the services, materials, equipmentor 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 arejection.

3. At least once each quarter, the State and eachlocal government shall prepare a report detailing, for each public work over$25,000 for which a contract for its completion is awarded pursuant toparagraph (a) of subsection 1, if any:

(a) The name of the contractor to whom the contract wasawarded;

(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 weresolicited.

4. A report prepared pursuant to subsection 3 is apublic record and must be maintained on file at the administrative offices ofthe applicable public body.

5. The provisions of this section do not relieve thisState from the duty to award the contract for the public work to a bidder whois:

(a) Qualified pursuant to the applicable provisions of NRS 338.1375 to 338.1382, inclusive; and

(b) The lowest responsive and responsible bidder, ifbids are required to be solicited from more than one properly licensedcontractor pursuant to subsection 1.

(Added to NRS by 2003, 1984)

NRS 338.13864 Attestationrequired before State or local government may perform certain smaller publicworks itself.

1. If the State or a local government proposes toperform a public work itself in accordance with subsection 2 of NRS 338.1386, the public officerresponsible for the management of the public works of the State or the localgovernment, as applicable, must, if the estimated cost of the public work ismore than $25,000 but not more than $100,000 and before work on the public workis commenced, prepare a signed attestation regarding the decision of the Stateor 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 orthe local government has decided to perform the public work itself; and

(3) A general statement that the public workwill adhere to the same quality and standards as would be required of aproperly licensed contractor if the public work had been awarded to a properlylicensed contractor; and

(b) Is a public record and must be maintained on fileat the administrative offices of the applicable public body.

(Added to NRS by 2003, 1985)

NRS 338.1389 Contractfor public work for which estimated cost exceeds $250,000 must be awarded tocontractor who submits best bid; certain bids deemed best bid; eligibility toreceive preference in bidding; issuance of certificate of eligibility by StateContractors Board; regulations; fees; sanctions; objections.

1. Except as otherwise provided in subsection 10 and NRS 338.1385, 338.1386 and 338.13864, a public body or itsauthorized representative shall award a contract for a public work for whichthe estimated cost exceeds $250,000 to the contractor who submits the best bid.

2. Except as otherwise provided in subsection 10 orlimited by subsection 11, the lowest bid that is:

(a) Submitted by a responsive and responsiblecontractor who:

(1) Has been determined by the public body to bea qualified bidder pursuant to NRS 338.1379or 338.1382; and

(2) At the time he submits his bid, has a validcertificate of eligibility to receive a preference in bidding on public worksissued to the contractor by the State Contractors Board pursuant to subsection3 or 4; and

(b) Not morethan 5 percent higher than the bid submitted by the lowest responsive andresponsible bidder who does not have, at the time he submits his bid, a validcertificate of eligibility to receive a preference in bidding on public worksissued to him by the State Contractors Board pursuant to subsection 3 or 4,

shall bedeemed to be the best bid for the purposes of this section.

3. The State Contractors Board shall issue acertificate of eligibility to receive a preference in bidding on public worksto a general contractor who is licensed pursuant to the provisions of chapter 624 of NRS and submits to the Board anaffidavit from a certified public accountant setting forth that the generalcontractor 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, 374and 377 of NRS on materials used forconstruction in this State, including, without limitation, construction that isundertaken or carried out on land within the boundaries of this State that ismanaged by the Federal Government or is on an Indian reservation or Indiancolony, of not less than $5,000 for each consecutive 12-month period for 60months immediately preceding the submission of the affidavit from the certifiedpublic accountant;

(2) The governmental services tax imposedpursuant to chapter 371 of NRS on the vehiclesused in the operation of his business in this State of not less than $5,000 foreach consecutive 12-month period for 60 months immediately preceding thesubmission of the affidavit from the certified public accountant; or

(3) Any combination of such sales and use taxesand governmental services tax; or

(b) Acquired, by purchase, inheritance, gift ortransfer through a stock option plan, all the assets and liabilities of aviable, operating construction firm that possesses a:

(1) License as a general contractor pursuant tothe provisions of chapter 624 of NRS; and

(2) Certificate of eligibility to receive apreference in bidding on public works.

4. The State Contractors Board shall issue acertificate of eligibility to receive a preference in bidding on public worksto a specialty contractor who is licensed pursuant to the provisions of chapter 624 of NRS and submits to the Board anaffidavit from a certified public accountant setting forth that the specialtycontractor 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, 374and 377 of NRS on materials used forconstruction in this State, including, without limitation, construction that isundertaken or carried out on land within the boundaries of this State that ismanaged 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 monthsimmediately preceding the submission of the affidavit from the certified publicaccountant;

(2) The governmental services tax imposedpursuant to chapter 371 of NRS on the vehiclesused in the operation of his business in this State of not less than $5,000 foreach consecutive 12-month period for 60 months immediately preceding thesubmission of the affidavit from the certified public accountant; or

(3) Any combination of such sales and use taxesand governmental services tax; or

(b) Acquired, by purchase, inheritance, gift ortransfer through a stock option plan, all the assets and liabilities of aviable, operating construction firm that possesses a:

(1) License as a specialty contractor pursuantto the provisions of chapter 624 of NRS; and

(2) Certificate of eligibility to receive apreference in bidding on public works.

5. For the purposes of complying with the requirementsset forth in paragraph (a) of subsection 3 and paragraph (a) of subsection 4, acontractor shall be deemed to have paid:

(a) Sales and use taxes and governmental services taxesthat were paid in this State by an affiliate or parent company of thecontractor, if the affiliate or parent company is also a general contractor orspecialty contractor, as applicable; and

(b) Sales and use taxes that were paid in this State bya joint venture in which the contractor is a participant, in proportion to theamount of interest the contractor has in the joint venture.

6. A contractor who has received a certificate ofeligibility to receive a preference in bidding on public works from the StateContractors Board pursuant to subsection 3 or 4 shall, at the time for theannual renewal of his contractors license pursuant to NRS 624.283, submit to the Board anaffidavit from a certified public accountant setting forth that the contractorhas, during the immediately preceding 12 months, paid the taxes requiredpursuant to paragraph (a) of subsection 3 or paragraph (a) of subsection 4, asapplicable, to maintain his eligibility to hold such a certificate.

7. A contractor who fails to submit an affidavit tothe Board pursuant to subsection 6 ceases to be eligible to receive apreference in bidding on public works unless he reapplies for and receives acertificate of eligibility pursuant to subsection 3 or 4, as applicable.

8. If a contractor holds more than one contractorslicense, he must submit a separate application for each license pursuant towhich he wishes to qualify for a preference in bidding. Upon issuance, thecertificate of eligibility to receive a preference in bidding on public worksbecomes part of the contractors license for which the contractor submitted theapplication.

9. If a contractor who applies to the StateContractors Board for a certificate of eligibility to receive a preference inbidding on public works submits false information to the Board regarding therequired payment of taxes, the contractor is not eligible to receive apreference in bidding on public works for a period of 5 years after the date onwhich the Board becomes aware of the submission of the false information.

10. If any federal statute or regulation precludes thegranting of federal assistance or reduces the amount of that assistance for aparticular public work because of the provisions of subsection 2, thoseprovisions do not apply insofar as their application would preclude or reducefederal assistance for that work.

11. If a bid is submitted by two or more contractorsas a joint venture or by one of them as a joint venturer, the bid may be deemedthe best bid only if both or all of the joint venturers separately meet therequirements of subsection 2.

12. The State Contractors Board shall adoptregulations and may assess reasonable fees relating to the certification ofcontractors for a preference in bidding on public works.

13. A person or entity who believes that a contractorwrongfully holds a certificate of eligibility to receive a preference inbidding on public works may challenge the validity of the certificate by filinga written objection with the public body to which the contractor has submitted abid on a contract for the construction of a public work. A written objectionauthorized pursuant to this subsection must:

(a) Set forth proof or substantiating evidence tosupport the belief of the person or entity that the contractor wrongfully holdsa certificate of eligibility to receive a preference in bidding on publicworks; and

(b) Be filed with the public body not later than 3business days after the opening of the bids by the public body or itsauthorized representative.

14. If a public body receives a written objectionpursuant to subsection 13, the public body shall determine whether theobjection is accompanied by the proof or substantiating evidence requiredpursuant to paragraph (a) of that subsection. If the public body determinesthat the objection is not accompanied by the required proof or substantiatingevidence, the public body shall dismiss the objection and the public body orits authorized representative may proceed immediately to award the contract. Ifthe public body determines that the objection is accompanied by the requiredproof or substantiating evidence, the public body shall determine whether the contractorqualifies for the certificate pursuant to the provisions of this section andthe public body or its authorized representative may proceed to award thecontract accordingly.

(Added to NRS by 1999, 2395; A 1999, 3491, 3497; 2001, 252, 296, 2008, 2022, 2262; 2003, 119, 124, 1992, 2426, 2497)

NRS 338.13895 Awardof contract to unlicensed or improperly licensed contractor prohibited;replacement of unacceptable subcontractor before contract is awarded;rescission of award of contract to unlicensed or improperly licensed contractorbefore commencement of work.

1. The State Public Works Board shall not award acontract to a person who, at the time of the bid, is not properly licensedunder the provisions of chapter 624 of NRS orif the contract would exceed the limit of his license. A subcontractor who is:

(a) Named in the bid for the contract as asubcontractor who will provide a portion of the work on the public workpursuant 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 PublicWorks Board pursuant to NRS 338.1376,

shall bedeemed unacceptable. If the subcontractor is deemed unacceptable pursuant tothis subsection, the contractor shall provide an acceptable subcontractor.

2. A local government awarding a contract for a publicwork shall not award the contract to a person who, at the time of the bid, isnot properly licensed under the provisions of chapter624 of NRS or if the contract would exceed the limit of his license. Asubcontractor who is:

(a) Named in the bid for the contract as asubcontractor who will provide a portion of the work on the public workpursuant to NRS 338.141; and

(b) Not properly licensed for that portion of work,

shall bedeemed unacceptable. If the subcontractor is deemed unacceptable pursuant tothis subsection, the contractor shall provide an acceptable subcontractor withno increase in the amount of the contract.

3. If, after awarding the contract, but beforecommencement of the work, the public body or its authorized representativediscovers that the person to whom the contract was awarded is not licensed, orthat the contract would exceed his license, the public body or its authorizedrepresentative shall rescind the award of the contract and may accept the nextlowest bid for that public work from a responsive bidder who was determined bythe public body or its authorized representative to be a qualified bidderpursuant to NRS 338.1379 or 338.1382 without requiring that new bidsbe submitted.

(Added to NRS by 1999, 2395; A 2003, 2129, 2425, 2497; 2005, 1802)

NRS 338.139 Awardingof contract to specialty contractor: Conditions.

1. A public body or its authorized representative mayaward a contract for a public work pursuant to NRS 338.1375 to 338.13895, inclusive, to a specialty contractorif:

(a) The majority of the work to be performed on thepublic work to which the contract pertains consists of specialty contractingfor which the specialty contractor is licensed; and

(b) The public work to which the contract pertains isnot part of a larger public work.

2. If a public body or its authorized representativeawards a contract to a specialty contractor pursuant to NRS 338.1375 to 338.13895, inclusive, all work to beperformed on the public work to which the contract pertains that is outside thescope of the license of the specialty contractor must be performed by asubcontractor who:

(a) Is licensed to perform such work; and

(b) At the time of the performance of the work, is noton 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 RELATINGTO CONTRACTS

General Provisions

NRS 338.140 Draftingof specifications for bids: Limitations; confidentiality of documents generatedby bidder in preparation or determination of prices included in bid.

1. A public body shall not draft or cause to bedrafted specifications for bids, in connection with a public work:

(a) In such a manner as to limit the bidding, directlyor indirectly, to any one specific concern.

(b) Except in those instances where the product isdesignated to match others in use on a particular public improvement eithercompleted or in the course of completion, calling for a designated material,product, thing or service by specific brand or trade name unless thespecification lists at least two brands or trade names of comparable quality orutility and is followed by the words or equal so that bidders may furnish anyequal material, product, thing or service.

(c) In such a manner as to hold the bidder to whom suchcontract is awarded responsible for extra costs incurred as a result of errorsor omissions by the public body in the contract documents.

(d) In such a manner as to require a bidder to furnishto the public body, whether before or after the bid is submitted, documentsgenerated 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 additionalwork performed pursuant to a change order;

(2) An evaluation of claims for costs incurredfor the performance of additional work;

(3) Preparation for arbitration or litigation;

(4) A determination of the validity of theprotest of a bid;

(5) A determination of the validity of anincrease or decrease in the price of a contract in accordance with a provisionin the contract which authorizes such an increase or decrease to correspond tochanging market conditions; or

(6) Any combination thereof.

A documentfurnished to a public body pursuant to this paragraph is confidential and mustbe returned to the bidder. Any document furnished to a public body by a bidderpursuant to this paragraph may be transmitted and stored electronically if themanner of transmission ensures that the documents are exclusively accessible tothe bidder. Electronic transmission and storage of such documents does notwaive or otherwise affect the proprietary interests of the bidder in thedocuments.

2. In those cases involving a unique or novel productapplication required to be used in the public interest, or where only one brandor trade name is known to the public body, it may list only one.

3. Specifications must provide a period of time of atleast 7 days after award of the contract for submission of data substantiatinga request for a substitution of an equal item.

(Added to NRS by 1967, 929; A 1975, 540; 1997, 3164; 2003, 2429; 2005, 1802, 2891)

NRS 338.141 Bidsto include certain information concerning subcontractors; when bids deemed notresponsive with respect to subcontractors; requirements for substitution ofnamed subcontractors.

1. Except as otherwise provided in NRS 338.1727, each bid submitted to a publicbody for any public work to which paragraph (a) of subsection 1 of NRS 338.1385 or paragraph (a) of subsection1 of NRS 338.143 applies, must include:

(a) If the public body provides a list of the labor orportions of the public work which are estimated by the public body to exceed 3percent of the estimated cost of the public work, the name of each first tiersubcontractor who will provide such labor or portion of the work on the publicwork which is estimated to exceed 3 percent of the estimated cost of the publicwork; or

(b) If the public body does not provide a list of thelabor or portions of the public work which are estimated by the public body toexceed 3 percent of the estimated cost of the public work, the name of eachfirst tier subcontractor who will provide labor or a portion of the work on thepublic work to the prime contractor for which the first tier subcontractor willbe paid an amount exceeding 5 percent of the prime contractors total bid. Ifthe bid is submitted pursuant to this paragraph, within 2 hours after thecompletion of the opening of the bids, the contractors who submitted the threelowest bids must submit a list containing the name of each first tier subcontractorwho will provide labor or a portion of the work on the public work to the primecontractor for which the first tier subcontractor will be paid an amount exceeding1 percent of the prime contractors total bid or $50,000, whichever is greater,and the number of the license issued to the first tier subcontractor pursuantto chapter 624 of NRS.

2. The lists required by subsection 1 must include adescription of the labor or portion of the work which each first tiersubcontractor named in the list will provide to the prime contractor.

3. A prime contractor shall include his name on a listrequired by paragraph (a) of subsection 1 if he will perform any of the workrequired to be listed pursuant to paragraph (a) of subsection 1.

4. Except as otherwise provided in this subsection, ifa contractor:

(a) Fails to submit the list within the required time;or

(b) Submits a list that includes the name of asubcontractor who, at the time of the submission of the list, is ondisqualified status with the State Public Works Board pursuant to NRS 338.1376,

thecontractors bid shall be deemed not responsive. A contractors bid shall notbe deemed not responsive on the grounds that the contractor submitted a listthat includes the name of a subcontractor who, at the time of the submission ofthe list, is on disqualified status with the State Public Works Board pursuantto NRS 338.1376 if the contractor,before the award of the contract, provides an acceptable replacement subcontractorin the manner set forth in subsection 1 or 2 of NRS 338.13895.

5. A contractor whose bid is accepted shall notsubstitute a subcontractor for any subcontractor who is named in the bid,unless:

(a) The public body or its authorized representativeobjects to the subcontractor, requests in writing a change in the subcontractorand pays any increase in costs resulting from the change.

(b) The substitution is approved by the public body orits authorized representative. The substitution must be approved if the publicbody or its authorized representative determines that:

(1) The named subcontractor, after having areasonable opportunity, fails or refuses to execute a written contract with thecontractor which was offered to the named subcontractor with the same generalterms that all other subcontractors on the project were offered;

(2) The named subcontractor files for bankruptcyor becomes insolvent;

(3) The named subcontractor fails or refuses toperform his subcontract within a reasonable time or is unable to furnish aperformance bond and payment bond pursuant to NRS339.025; or

(4) The named subcontractor is not properlylicensed to provide that labor or portion of the work.

(c) If the public body awarding the contract is agoverning body, the public body or its authorized representative, in awardingthe contract pursuant to NRS 338.1375to 338.139, inclusive:

(1) Applies such criteria set forth in NRS 338.1377 as are appropriate forsubcontractors and determines that the subcontractor does not meet thatcriteria; and

(2) Requests in writing a substitution of thesubcontractor.

6. If a contractor indicates pursuant to subsection 1that he will perform a portion of work on the public work and thereafterrequests to substitute a subcontractor to perform such work, the contractorshall provide to the public body a written explanation in the form required bythe public body which contains the reasons that:

(a) A subcontractor was not originally contemplated tobe used on that portion of the public work; and

(b) The substitution is in the best interest of thepublic body.

7. As used in this section:

(a) First tier subcontractor means a subcontractorwho contracts directly with a prime contractor to provide labor, materials orservices for a construction project.

(b) General terms means the terms and conditions of acontract that set the basic requirements for a public work and apply withoutregard to the particular trade or specialty of a subcontractor, but does notinclude any provision that controls or relates to the specific portion of thepublic work that will be completed by a subcontractor, including, withoutlimitation, the materials to be used by the subcontractor or other details ofthe work to be performed by the subcontractor.

(Added to NRS by 1993, 2130; A 2001, 573, 2268; 2003, 2130, 2430, 2500; 2005, 1803)

NRS 338.142 Noticeof protest of award of contract: Period for filing; contents; posting anddisposition of bond or security; stay of action; immunity of public body fromliability to bidder.

1. A person who bids on a contract may file a noticeof protest regarding the awarding of the contract with the authorizedrepresentative designated by the public body within 5 business days after thedate the bids were opened by the public body or its authorized representative.

2. The notice of protest must include a writtenstatement setting forth with specificity the reasons the person filing thenotice believes the applicable provisions of law were violated.

3. A person filing a notice of protest may be requiredby the public body or its authorized representative, at the time the notice ofprotest is filed, to post a bond with a good and solvent surety authorized todo business in this state or submit other security, in a form approved by thepublic body, to the public body who shall hold the bond or other security untila determination is made on the protest. A bond posted or other securitysubmitted 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 bidsubmitted by the person filing the notice of protest; or

(b) Two hundred fifty thousand dollars.

4. A notice of protest filed in accordance with theprovisions of this section operates as a stay of action in relation to theawarding of any contract until a determination is made by the public body onthe protest.

5. A person who makes an unsuccessful bid may not seekany type of judicial intervention until the public body has made adetermination on the protest and awarded the contract.

6. Neither a public body nor any authorizedrepresentative of the public body is liable for any costs, expenses, attorneysfees, 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 othersecurity submitted with the notice of protest must be returned to the personwho posted the bond or submitted the security. If the protest is rejected, aclaim may be made against the bond or other security by the public body in anamount equal to the expenses incurred by the public body because of theunsuccessful protest. Any money remaining after the claim has been satisfiedmust be returned to the person who posted the bond or submitted the security.

(Added to NRS by 2003, 2410)

Alternative Procedures for Local Governments

NRS 338.143 Advertisingfor bids and compliance with certain provisions required for commencement ofcertain public works; quarterly reports of awarded contracts by authorizedrepresentatives; availability of plans and specifications for publicinspection; award of contract to lowest responsive and responsible bidder;rejection of bids; authority to award contract without competitive bidding ifno bids received in response to advertisement for bids in certaincircumstances; requirements before local government may commence public workitself; exemptions. [Effective through April 30, 2013.]

1. Except as otherwise provided in subsection 8 and NRS 338.1907, a local government or itsauthorized representative that awards a contract for a public work inaccordance with paragraph (b) of subsection 1 of NRS 338.1373 shall not:

(a) Commence a public work for which the estimated costexceeds $100,000 unless it advertises in a newspaper qualified pursuant to chapter 238 of NRS that is published in thecounty where the public work will be performed for bids for the public work. Ifno qualified newspaper is published in the county where the public work will beperformed, the required advertisement must be published in some qualifiednewspaper that is printed in the State of Nevada and has a general circulationin the county.

(b) Commence apublic work for which the estimated cost is $100,000 or less unless it complieswith the provisions of NRS 338.1442, 338.1444 and 338.1446.

(c) Divide a project work into separate portions toavoid the requirements of paragraph (a) or (b).

2. At least once each quarter, the authorizedrepresentative of a local government shall report to the governing body anycontract that the authorized representative awarded pursuant to subsection 1 inthe immediately preceding quarter.

3. Approved plans and specifications for the bids mustbe on file at a place and time stated in the advertisement for the inspectionof 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 asotherwise provided in subsection 5 and NRS338.147, the local government or its authorized representative shall awarda contract to the lowest responsive and responsible bidder.

5. Any bids received in response to an advertisementfor bids may be rejected if the local government or its authorizedrepresentative responsible for awarding the contract determines that:

(a) The bidder is not responsive or responsible;

(b) The quality of the services, materials, equipmentor labor offered does not conform to the approved plans or specifications; or

(c) The public interest would be served by such arejection.

6. A local government may let a contract withoutcompetitive bidding if no bids were received in response to an advertisementfor bids and:

(a) The local government publishes a notice statingthat no bids were received and that the contract may be let without furtherbidding;

(b) The local government considers any bid submitted inresponse to the notice published pursuant to paragraph (a);

(c) The local government lets the contract not lessthan 7 days after publishing a notice pursuant to paragraph (a); and

(d) The contract is awarded to the lowest responsiveand responsible bidder.

7. Before a local government may commence theperformance of a public work itself pursuant to the provisions of this section,based upon a determination that the public interest would be served byrejecting any bids received in response to an advertisement for bids, the localgovernment shall prepare and make available for public inspection a writtenstatement containing:

(a) A list of all persons, including supervisors, whomthe local government intends to assign to the public work, together with theirclassifications and an estimate of the direct and indirect costs of theirlabor;

(b) A list of all equipment that the local governmentintends to use on the public work, together with an estimate of the number ofhours each item of equipment will be used and the hourly cost to use each itemof equipment;

(c) An estimate of the cost of administrative supportfor 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 allmaterials, supplies, labor and equipment to be used for the public work; and

(e) An estimate of the amount of money the localgovernment expects to save by rejecting the bids and performing the public workitself.

8. This section does not apply to:

(a) Any utility subject to the provisions of chapter 318 or 710of 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 schooldistrict;

(d) The Las Vegas Valley Water District createdpursuant to chapter 167, Statutes of Nevada 1947, the Moapa Valley WaterDistrict created pursuant to chapter 477, Statutes of Nevada 1983 or the VirginValley Water District created pursuant to chapter 100, Statutes of Nevada 1993;or

(e) The design and construction of a public work forwhich 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)

NRS 338.143 Advertising for bids and compliancewith certain provisions required for commencement of certain public works;quarterly reports of awarded contracts by authorized representatives;availability of plans and specifications for public inspection; award ofcontract to lowest responsive and responsible bidder; rejection of bids;authority to award contract without competitive bidding if no bids received inresponse to advertisement for bids in certain circumstances; requirementsbefore local government may commence public work itself; exemptions. [EffectiveMay 1, 2013.]

1. Except as otherwise provided in subsection 8, alocal government or its authorized representative that awards a contract for apublic work in accordance with paragraph (b) of subsection 1 of NRS 338.1373 shall not:

(a) Commence a public work for which the estimated costexceeds $100,000 unless it advertises in a newspaper qualified pursuant to chapter 238 of NRS that is published in thecounty where the public work will be performed for bids for the public work. Ifno qualified newspaper is published within the county where the public workwill be performed, the required advertisement must be published in somequalified newspaper that is printed in the State of Nevada and has a generalcirculation within the county.

(b) Commence a public work for which the estimated costis $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 toavoid the requirements of paragraph (a) or (b).

2. At least once each quarter, the authorizedrepresentative of a local government shall report to the governing body anycontract that the authorized representative awarded pursuant to subsection 1 inthe immediately preceding quarter.

3. Approved plans and specifications for the bids mustbe on file at a place and time stated in the advertisement for the inspectionof 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 asotherwise provided in subsection 5 and NRS338.147, the local government or its authorized representative shall awarda contract to the lowest responsive and responsible bidder.

5. Any bids received in response to an advertisementfor bids may be rejected if the local government or its authorizedrepresentative responsible for awarding the contract determines that:

(a) The bidder is not responsive or responsible;

(b) The quality of the services, materials, equipmentor labor offered does not conform to the approved plans or specifications; or

(c) The public interest would be served by such arejection.

6. A local government may let a contract withoutcompetitive bidding if no bids were received in response to an advertisementfor bids and:

(a) The local government publishes a notice statingthat no bids were received and that the contract may be let without furtherbidding;

(b) The local government considers any bid submitted inresponse to the notice published pursuant to paragraph (a);

(c) The local government lets the contract not lessthan 7 days after publishing a notice pursuant to paragraph (a); and

(d) The contract is awarded to the lowest responsiveand responsible bidder.

7. Before a local government may commence theperformance of a public work itself pursuant to the provisions of this section,based upon a determination that the public interest would be served byrejecting any bids received in response to an advertisement for bids, the localgovernment shall prepare and make available for public inspection a writtenstatement containing:

(a) A list of all persons, including supervisors, whomthe local government intends to assign to the public work, together with theirclassifications and an estimate of the direct and indirect costs of theirlabor;

(b) A list of all equipment that the local governmentintends to use on the public work, together with an estimate of the number ofhours each item of equipment will be used and the hourly cost to use each itemof equipment;

(c) An estimate of the cost of administrative supportfor 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 allmaterials, supplies, labor and equipment to be used for the public work; and

(e) An estimate of the amount of money the localgovernment expects to save by rejecting the bids and performing the public workitself.

8. This section does not apply to:

(a) Any utility subject to the provisions of chapter 318 or 710of 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 schooldistrict;

(d) The Las Vegas Valley Water District createdpursuant to chapter 167, Statutes of Nevada 1947, the Moapa Valley WaterDistrict created pursuant to chapter 477, Statutes of Nevada 1983 or the VirginValley Water District created pursuant to chapter 100, Statutes of Nevada 1993;or

(e) The design and construction of a public work forwhich 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 May1, 2013)

NRS 338.1442 Localgovernment to award contract for smaller public work to contractor or performpublic work itself. If the estimated cost of apublic work is $100,000 or less, a local government shall:

1. Award a contract for the completion of the publicwork to a properly licensed contractor in accordance with NRS 338.1444; or

2. Perform the public work itself in accordance with NRS 338.1446.

(Added to NRS by 2003, 1985)

NRS 338.1444 Requirementsfor awarding contract for smaller public work to contractor.

1. Before a local government awards a contract for thecompletion 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 properlylicensed contractors; and

(b) If the estimated cost of the public work is $25,000or less, solicit a bid from at least one properly licensed contractor.

2. Any bids received in response to a solicitation forbids made pursuant to this section may be rejected if the local governmentdetermines that:

(a) The quality of the services, materials, equipmentor 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 arejection.

3. At least once each quarter, a local governmentshall prepare a report detailing, for each public work over $25,000 for which acontract for its completion is awarded pursuant to paragraph (a) of subsection1, if any:

(a) The name of the contractor to whom the contract wasawarded;

(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 weresolicited.

4. A report prepared pursuant to subsection 3 is apublic record and must be maintained on file at the administrative offices ofthe applicable public body.

5. The provisions of this section do not relieve alocal government from the duty to award the contract for the public work to abidder who is the lowest responsive and responsible bidder if bids are requiredto be solicited from more than one properly licensed contractor pursuant tosubsection 1.

(Added to NRS by 2003, 1985)

NRS 338.1446 Attestationrequired before local government may perform certain smaller public worksitself.

1. If a local government proposes to perform a publicwork itself in accordance with subsection 2 of NRS 338.1442, the public officerresponsible for the management of the public works of the local governmentmust, if the estimated cost of the public work is more than $25,000 but notmore than $100,000 and before work on the public work is commenced, prepare asigned attestation regarding the decision of the local government to performthe 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 localgovernment has decided to perform the public work itself; and

(3) A general statement that the public workwill adhere to the same quality and standards as would be required of aproperly licensed contractor if the public work had been awarded to a properlylicensed contractor; and

(b) Is a public record and must be maintained on fileat the administrative offices of the local government.

(Added to NRS by 2003, 1986)

NRS 338.147 Contractfor public work for which estimated cost exceeds $250,000 must be awarded tocontractor who submits best bid; certain bids deemed best bid; eligibility toreceive preference in bidding; issuance of certificate of eligibility by StateContractors Board; regulations; fees; sanctions; objections.

1. Except as otherwise provided in subsection 10 and NRS 338.143, 338.1442 and 338.1446, a local government or itsauthorized representative shall award a contract for a public work for whichthe estimated cost exceeds $250,000 to the contractor who submits the best bid.

2. Except as otherwise provided in subsection 10 orlimited by subsection 11, the lowest bid that is:

(a) Submitted by a contractor who:

(1) Has been found to be a responsible andresponsive contractor by the local government or its authorized representative;and

(2) At the time he submits his bid, has a validcertificate of eligibility to receive a preference in bidding on public worksissued to the contractor by the State Contractors Board pursuant to subsection3 or 4; and

(b) Not morethan 5 percent higher than the bid submitted by the lowest responsive andresponsible bidder who does not have, at the time he submits the bid, a validcertificate of eligibility to receive a preference in bidding on public worksissued to him by the State Contractors Board pursuant to subsection 3 or 4,

shall bedeemed to be the best bid for the purposes of this section.

3. The State Contractors Board shall issue acertificate of eligibility to receive a preference in bidding on public worksto a general contractor who is licensed pursuant to the provisions of chapter 624 of NRS and submits to the Board anaffidavit from a certified public accountant setting forth that the generalcontractor 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, 374and 377 of NRS on materials used forconstruction in this State, including, without limitation, construction that isundertaken or carried out on land within the boundaries of this State that ismanaged by the Federal Government or is on an Indian reservation or Indiancolony, of not less than $5,000 for each consecutive 12-month period for 60months immediately preceding the submission of the affidavit from the certifiedpublic accountant;

(2) The governmental services tax imposedpursuant to chapter 371 of NRS on the vehiclesused in the operation of his business in this State of not less than $5,000 foreach consecutive 12-month period for 60 months immediately preceding thesubmission of the affidavit from the certified public accountant; or

(3) Any combination of such sales and use taxesand governmental services tax; or

(b) Acquired, by purchase, inheritance, gift ortransfer through a stock option plan, all the assets and liabilities of aviable, operating construction firm that possesses a:

(1) License as a general contractor pursuant tothe provisions of chapter 624 of NRS; and

(2) Certificate of eligibility to receive apreference in bidding on public works.

4. The State Contractors Board shall issue acertificate of eligibility to receive a preference in bidding on public worksto a specialty contractor who is licensed pursuant to the provisions of chapter 624 of NRS and submits to the Board anaffidavit from a certified public accountant setting forth that the specialtycontractor 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, 374and 377 of NRS on materials used forconstruction in this State, including, without limitation, construction that isundertaken or carried out on land within the boundaries of this State that ismanaged 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 monthsimmediately preceding the submission of the affidavit from the certified publicaccountant;

(2) The governmental services tax imposedpursuant to chapter 371 of NRS on the vehiclesused in the operation of his business in this State of not less than $5,000 foreach consecutive 12-month period for 60 months immediately preceding thesubmission of the affidavit from the certified public accountant; or

(3) Any combination of such sales and use taxesand governmental services tax; or

(b) Acquired, by purchase, inheritance, gift ortransfer through a stock option plan, all the assets and liabilities of aviable, operating construction firm that possesses a:

(1) License as a specialty contractor pursuantto the provisions of chapter 624 of NRS; and

(2) Certificate of eligibility to receive apreference in bidding on public works.

5. For the purposes of complying with the requirementsset forth in paragraph (a) of subsection 3 and paragraph (a) of subsection 4, acontractor shall be deemed to have paid:

(a) Sales and use taxes and governmental services taxespaid in this State by an affiliate or parent company of the contractor, if theaffiliate or parent company is also a general contractor or specialtycontractor, as applicable; and

(b) Sales and use taxes paid in this State by a jointventure in which the contractor is a participant, in proportion to the amountof interest the contractor has in the joint venture.

6. A contractor who has received a certificate ofeligibility to receive a preference in bidding on public works from the StateContractors Board pursuant to subsection 3 or 4 shall, at the time for theannual renewal of his contractors license pursuant to NRS 624.283, submit to the Board anaffidavit from a certified public accountant setting forth that the contractorhas, during the immediately preceding 12 months, paid the taxes requiredpursuant to paragraph (a) of subsection 3 or paragraph (a) of subsection 4, asapplicable, to maintain his eligibility to hold such a certificate.

7. A contractor who fails to submit an affidavit tothe Board pursuant to subsection 6 ceases to be eligible to receive apreference in bidding on public works unless he reapplies for and receives acertificate of eligibility pursuant to subsection 3 or 4, as applicable.

8. If a contractor holds more than one contractorslicense, he must submit a separate application for each license pursuant towhich he wishes to qualify for a preference in bidding. Upon issuance, thecertificate of eligibility to receive a preference in bidding on public worksbecomes part of the contractors license for which the contractor submitted theapplication.

9. If a contractor who applies to the StateContractors Board for a certificate of eligibility to receive a preference inbidding on public works submits false information to the Board regarding therequired payment of taxes, the contractor is not eligible to receive apreference in bidding on public works for a period of 5 years after the date onwhich the Board becomes aware of the submission of the false information.

10. If any federal statute or regulation precludes thegranting of federal assistance or reduces the amount of that assistance for aparticular public work because of the provisions of subsection 2, thoseprovisions do not apply insofar as their application would preclude or reducefederal assistance for that work.

11. If a bid is submitted by two or more contractorsas a joint venture or by one of them as a joint venturer, the bid may be deemeda best bid only if both or all of the joint venturers separately meet therequirements of subsection 2.

12. The State Contractors Board shall adoptregulations and may assess reasonable fees relating to the certification ofcontractors for a preference in bidding on public works.

13. A person or entity who believes that a contractorwrongfully holds a certificate of eligibility to receive a preference inbidding on public works may challenge the validity of the certificate by filinga written objection with the local government to which the contractor hassubmitted a bid on a contract for the construction of a public work. A writtenobjection authorized pursuant to this subsection must:

(a) Set forth proof or substantiating evidence tosupport the belief of the person or entity that the contractor wrongfully holdsa certificate of eligibility to receive a preference in bidding on publicworks; and

(b) Be filedwith the local government not later than 3 business days after the opening ofthe bids by the local government or its authorized representative.

14. If a local government receives a written objectionpursuant to subsection 13, the local government shall determine whether theobjection is accompanied by the proof or substantiating evidence requiredpursuant to paragraph (a) of that subsection. If the local governmentdetermines that the objection is not accompanied by the required proof orsubstantiating evidence, the local government shall dismiss the objection andthe local government or its authorized representative may proceed immediatelyto award the contract. If the local government determines that the objection isaccompanied by the required proof or substantiating evidence, the localgovernment shall determine whether the contractor qualifies for the certificatepursuant to the provisions of this section and the local government or itsauthorized 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)

NRS 338.1475 Awardof contract to unlicensed or improperly licensed contractor prohibited;replacement of unacceptable subcontractor before contract is awarded;rescission of award of contract to unlicensed or improperly licensed contractorbefore commencement of work.

1. A local government or its authorized representativeawarding a contract for a public work shall not award the contract to a personwho, at the time of the bid, is not properly licensed under the provisions of chapter 624 of NRS or if the contract wouldexceed the limit of his license. A subcontractor who is:

(a) Named in the bid for the contract as asubcontractor who will provide a portion of the work on the public workpursuant to NRS 338.141; and

(b) Not properly licensed for that portion of the work,

shall bedeemed unacceptable. If the subcontractor is deemed unacceptable pursuant tothis subsection, the contractor shall provide an acceptable subcontractor.

2. If, after awarding the contract, but beforecommencement of the work, the local government or its authorized representativediscovers that the person to whom the contract was awarded is not licensed, orthat the contract would exceed his license, the local government or itsauthorized representative shall rescind the award of the contract and mayaccept the next lowest bid for that public work from a responsive andresponsible bidder without requiring that new bids be submitted.

(Added to NRS by 1983, 913; A 1993, 2133; 1999, 2400; 2003, 2434)(Substitutedin revision for NRS 338.145)

NRS 338.148 Awardingof contract to specialty contractor: Conditions.

1. A local government or its authorized representativemay 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 thepublic work to which the contract pertains consists of specialty contractingfor which the specialty contractor is licensed; and

(b) The public work to which the contract pertains isnot part of a larger public work.

2. If a local government or its authorizedrepresentative awards a contract to a specialty contractor pursuant to NRS 338.143 to 338.1475, inclusive, all work to beperformed on the public work to which the contract pertains that is outside thescope of the license of the specialty contractor must be performed by asubcontractor who is licensed to perform such work.

(Added to NRS by 2001, 2258; A 2003, 2438)

Provisions Required in Contracts

NRS 338.150 Provisionsrequiring arbitration of disputes; use of alternate dispute resolution methodsbefore arbitration not prohibited.

1. Except as otherwise provided in subsection 3, anypublic body charged with the drafting of specifications for a public work shallinclude in the specifications a clause requiring arbitration of a dispute arisingbetween the public body and the contractor engaged on a public work if thedispute cannot otherwise be settled.

2. Any dispute requiring arbitration must be handledin accordance with the construction industrys rules for arbitration asadministered by the American Arbitration Association or the Nevada ArbitrationAssociation.

3. The provisions of subsection 1 do not require theDepartment of Transportation to include such a clause in any contract enteredinto by the Department.

4. This section does not prohibit the use of alternatedispute resolution methods before arbitration.

(Added to NRS by 1969, 618; A 1971, 621; 1979, 1796;1985, 1462; 2003,2438; 2005, 1808)

NRS 338.153 Provisionrequiring persons who provide labor, equipment, materials, supplies or servicesfor public work to comply with all applicable state and local laws. A public body shall include in each contract for a publicwork a clause requiring each contractor, subcontractor and other person who provideslabor, equipment, materials, supplies or services for the public work to complywith the requirements of all applicable state and local laws, including,without limitation, any applicable licensing requirements and requirements forthe payment of sales and use taxes on equipment, materials and suppliesprovided for the public work.

(Added to NRS by 2003, 20th SpecialSession, 21)

NRS 338.155 Provisionsrelating to design professional who is not member of design-build team. Ifa public body enters into a contract with a design professional who is not amember of a design-build team, for the provision of services in connection witha public work, the contract:

1. Must set forth:

(a) The specific period within which the public bodymust pay the design professional.

(b) The specific period and manner in which the publicbody may dispute a payment or portion thereof that the design professionalalleges is due.

(c) The terms of any penalty that will be imposed uponthe public body if the public body fails to pay the design professional withinthe specific period set forth in the contract pursuant to paragraph (a).

(d) That the prevailing party in an action to enforcethe contract is entitled to reasonable attorneys fees and costs.

2. May set forth the terms of any discount that thepublic body will receive if the public body pays the design professional withinthe specific period set forth in the contract pursuant to paragraph (a) ofsubsection 1.

3. May set forth the terms by which the designprofessional agrees to name the public body, at the cost of the public body, asan 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, mustnot require the design professional to defend, indemnify or hold harmless thepublic body or the employees, officers or agents of that public body from anyliability, 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 thepublic body, and the employees, officers and agents of the public body from anyliabilities, damages, losses, claims, actions or proceedings, including,without limitation, reasonable attorneys fees, that are caused by thenegligence, errors, omissions, recklessness or intentional misconduct of thedesign professional or the employees or agents of the design professional inthe performance of the contract. If the insurer by which the design professionalis insured against professional liability does not so defend the public bodyand the employees, officers and agents of the public body and the design professionalis adjudicated to be liable by a trier of fact, the trier of fact shall awardreasonable attorneys fees to be paid to the public body by the designprofessional in an amount which is proportionate to the liability of the designprofessional. As used in this subsection, agents means those persons who aredirectly involved in and acting on behalf of the public body in furtherance ofthe 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

NRS 338.161 Transportationfacility defined. As used in NRS 338.161 to 338.168, inclusive, unless the contextotherwise requires, transportation facility means a road, railroad, bridge,tunnel, overpass, airport, mass transit facility, parking facility for vehiclesor similar commercial facility used for the support of or the transportation ofpersons or goods, including, without limitation, any other property that isneeded to operate the facility. The term does not include a toll bridge or tollroad.

(Added to NRS by 2003, 2022)

NRS 338.162 Alternativemethods of authorization. A public body mayauthorize a person to develop, construct, improve, maintain or operate, or anycombination thereof, a transportation facility pursuant to NRS 338.163 or 338.164.

(Added to NRS by 2003, 2022)

NRS 338.163 Submissionof request to public body; contents of request.

1. A person may submit a request to a public body todevelop, construct, improve, maintain or operate, or any combination thereof, atransportation facility.

2. The request must be accompanied by the followinginformation:

(a) A topographic map indicating the location of thetransportation facility.

(b) A description of the transportation facility,including, without limitation, the conceptual design of the transportationfacility and all proposed interconnections with other transportationfacilities.

(c) The projected total cost of the transportationfacility over its life and the proposed date for the development of or the commencementof the construction of, or improvements to, the transportation facility.

(d) A statement setting forth the method by which theperson submitting the request proposes to secure all property interestsrequired for the transportation facility. The statement must include, withoutlimitation:

(1) The names and addresses, if known, of thecurrent owners of any property needed for the transportation facility;

(2) The nature of the property interests to beacquired; and

(3) Any property that the person submitting therequest proposes that the public body condemn.

(e) Information relating to the current transportationplans, if any, of any governmental entity in the jurisdiction of which anyportion of the transportation facility is located.

(f) A list of all permits and approvals required forthe development or construction of or improvement to the transportationfacility from local, state or federal agencies and a projected schedule forobtaining those permits and approvals.

(g) A list of the facilities of any utility or existingtransportation facility that will be crossed by the transportation facility anda statement of the plans of the person submitting the request to accommodatesuch crossings.

(h) A statement setting forth the general plans of theperson submitting the request for financing and operating the transportationfacility, which must include, without limitation:

(1) A plan for the development, financing andoperation of the transportation facility, including, without limitation, anindication of the proposed sources of money for the development and operationof the transportation facility, the anticipated use of such money and theanticipated schedule for the receipt of such money;

(2) A list of any assumptions made by the personabout the anticipated use of the transportation facility, including, withoutlimitation, the fees that will be charged for the use of the transportationfacility, and a discussion of those assumptions;

(3) The identification of any risk factorsidentified by the person that are associated with developing, constructing orimproving the transportation facility and the plan for addressing those riskfactors;

(4) The identification of any local, state orfederal resources that the person anticipates requesting for development andoperation of the transportation facility, including, without limitation, ananticipated schedule for the receipt of those resources and the effect of thoseresources on any statewide or regional program for the improvement of transportation;and

(5) The identification and analysis of any costsor benefits associated with the proposed facility, performed by a professionalengineer who is licensed pursuant to chapter 625of NRS.

(i) The names and addresses of the persons who may becontacted for further information concerning the request.

(j) Any additional material and information that thepublic body may request.

(Added to NRS by 2003, 2022)

NRS 338.164 Requestfor submission of proposals by public body. Ifa public body receives a request regarding a transportation facility pursuantto NRS 338.163 and the public bodydetermines that the transportation facility serves a public purpose, the publicbody may request other persons to submit proposals to develop, construct,improve, maintain or operate, or any combination thereof, the transportationfacility.

(Added to NRS by 2003, 2023)

NRS 338.166 Approvalof request or proposal: Determination of public purpose; staff reports; copy ofrequest or proposal to be furnished to affected governmental entities; fee;approval contingent on entering agreement with public body; establishment ofdate for development of or commencement of construction of transportationfacility.

1. A public body may approve a request or proposalsubmitted pursuant to NRS 338.163 or 338.164 if the public body determines thatthe transportation facility serves a public purpose. In determining whether thetransportation facility serves a public purpose, the public body shall considerwhether:

(a) There is a public need for the type oftransportation facility that is proposed;

(b) The proposed interconnections between thetransportation facility and existing transportation facilities and the plans ofthe person submitting the request for the operation of the transportationfacility are reasonable and compatible with any statewide or regional programfor the improvement of transportation and with the transportation plans of anyother governmental entity in the jurisdiction of which any portion of thetransportation facility will be located;

(c) The estimated cost of the transportation facilityis reasonable in relation to similar transportation facilities, as determinedby an analysis of the cost performed by a professional engineer who is licensedpursuant to chapter 625 of NRS;

(d) The plans of the person submitting the request willresult in the timely development or construction of, or improvement to, thetransportation facility or its more efficient operation;

(e) The plans of the person submitting the requestcontain any penalties for the failure of the person submitting the request tomeet any deadline which results in the untimely development or construction of,or improvement to, the transportation facility or failure to meet any deadlinefor its more efficient operation; and

(f) The long-term quality of the transportationfacility will meet a level of performance established by the public body over asufficient duration of time to provide value to the public.

2. In evaluating a request or proposal submittedpursuant to NRS 338.163 or 338.164, the public body may considerinternal staff reports prepared by personnel of the public body who arefamiliar with the operation of similar transportation facilities or the adviceof outside advisors or consultants with relevant experience.

3. The public body shall request that a person whosubmitted a request or proposal pursuant to NRS338.163 or 338.164 furnish a copy ofthe request or proposal to each governmental entity that has jurisdiction overan area in which any part of the transportation facility is located. Within 30days after receipt of such a request or proposal, the governmental entity shallsubmit in writing to the public body, for consideration by the public body, anycomments that the governmental entity has concerning the transportationfacility and shall indicate whether the transportation facility is compatiblewith any local, regional or statewide transportation plan or program that isapplicable to the governmental entity.

4. A public body shall charge a reasonable fee tocover the costs of processing, reviewing and evaluating a request or proposalsubmitted pursuant to NRS 338.163 or 338.164, including, without limitation,reasonable fees for the services of an attorney or a financial or otherconsultant or advisor, to be collected before the public body accepts therequest or proposal for processing, review and evaluation.

5. The approval of a request or proposal by the publicbody is contingent on the person who submitted the request or proposal enteringinto an agreement with the public body. In such an agreement, the public bodyshall include, without limitation:

(a) Criteria that address the long-term quality of thetransportation facility.

(b) The date of termination of the authority and dutiespursuant to NRS 338.161 to 338.168, inclusive, of the person whoserequest or proposal was approved by the public body with respect to thetransportation facility and for the dedication of the transportation facilityto the public body on that date.

(c) Provision for the imposition by the person whoserequest or proposal was approved by the public body of such rates, fees orother charges as may be established from time to time by agreement of theparties for use of all or a portion of a transportation facility, other than abridge or road.

6. In connection with the approval of a transportationfacility, the public body shall establish a date for the development of or thecommencement of the construction of, or improvements to, the transportationfacility. The public body may extend the date from time to time.

(Added to NRS by 2003, 2023)

NRS 338.167 Contractfor transportation services. A public body maycontract with a person whose request or proposal is approved pursuant to NRS 338.166 for transportation services tobe provided by the transportation facility in exchange for such payments forservice and other consideration as the public body may deem appropriate.

(Added to NRS by 2003, 2025)

NRS 338.168 Federal,state or local assistance. The public body maytake any action necessary to obtain federal, state or local assistance for atransportation facility that it approves and may enter into any contractsrequired 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 ofthe transportation facility to be paid, directly or indirectly, from theproceeds of a grant or loan made by the local, state or Federal Government orany agency or instrumentality thereof.

(Added to NRS by 2003, 2025)

CONTRACTS INVOLVING DESIGN-BUILD TEAMS, PRIME CONTRACTORSOR NONPROFIT ORGANIZATIONS

General Provisions

NRS 338.1711 Contractsfor which public body is required or authorized to enter into with primecontractor or design-build team.

1. Except as otherwise provided in this section and NRS 338.161 to 338.168, inclusive, a public body shallcontract with a prime contractor for the construction of a public work forwhich the estimated cost exceeds $100,000.

2. A public body may contract with a design-build teamfor the design and construction of a public work that is a discrete project ifthe public body has approved the use of a design-build team for the design andconstruction of the public work and the public work:

(a) Is the construction of a park and appurtenancesthereto, the rehabilitation or remodeling of a public building, or theconstruction 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)

NRS 338.1713 Contractwith design-build team: Public hearing; notice. Repealed. (See chapter424, Statutes ofNevada 2005, at page 1815.)

 

NRS 338.1715 Procedurefor selecting design-build team. A public body that contracts with adesign-build team pursuant to NRS 338.1711shall select the design-build team in accordance with the provisions of NRS 338.1721 to 338.1727, inclusive.

(Added to NRS by 1999, 3469; A 2001, 2022, 2276; 2003, 119, 157, 2441; 2005, 1810)

NRS 338.1717 Employmentof architect, landscape architect or engineer as consultant. A public body may employ a registered architect, landscapearchitect or licensed professional engineer as a consultant to assist thepublic 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 theconstruction 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

NRS 338.1721 Qualificationsof design-build team. To qualify to participatein a project for the design and construction of a public work, a design-buildteam must:

1. Have the ability to obtain a performance bond andpayment bond as required pursuant to NRS339.025;

2. Have the ability to obtain insurance coveringgeneral liability and liability for errors and omissions;

3. Not have been found liable for breach of contractwith respect to a previous project, other than a breach for legitimate cause,during the 5 years immediately preceding the date of the advertisement forpreliminary proposals;

4. Not have been disqualified from being awarded acontract pursuant to NRS 338.017, 338.13895, 338.1475 or 408.333;

5. Ensure that the members of the design-build teampossess the licenses and certificates required to carry out the functions oftheir respective professions within this State; and

6. If the project is for the design and constructionof a public work of the State, ensure that the prime contractor is qualified tobid on a public work of the State pursuant to NRS 338.1379.

(Added to NRS by 1999, 3470; A 2001, 252, 2022; 2003, 119, 2131; 2005, 1810)

NRS 338.1723 Advertisementfor preliminary proposals.

1. A public body shall advertise for preliminaryproposals for the design and construction of a public work by a design-buildteam in a newspaper qualified pursuant to chapter238 of NRS that is published in the county where the public work will beperformed. If no qualified newspaper is published in the county where thepublic work will be performed, the required advertisement must be published insome qualified newspaper that is printed in the State of Nevada and has ageneral circulation in the county.

2. A request for preliminary proposals publishedpursuant to subsection 1 must include, without limitation:

(a) A description of the public work to be designed andconstructed;

(b) An estimate of the cost to design and construct thepublic work;

(c) The dates on which it is anticipated that theseparate phases of the design and construction of the public work will beginand end;

(d) The date by which preliminary proposals must besubmitted 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 ona public work of the State pursuant to NRS338.1379 before submitting a preliminary proposal;

(f) A description of the extent to which designs mustbe completed for both preliminary and final proposals and any otherrequirements for the design and construction of the public work that the publicbody 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 assignedto each factor that the public body will use to evaluate design-build teams whosubmit a proposal for the public work;

(i) Notice that a design-build team desiring to submita proposal for the public work must include with its proposal the informationused by the public body to determine finalists among the design-build teamssubmitting proposals pursuant to subsection 2 of NRS 338.1725 and a description of thatinformation; and

(j) A statement as to whether a design-build team thatis selected as a finalist pursuant to NRS338.1725 but is not awarded the design-build contract pursuant to NRS 338.1727 will be partially reimbursedfor the cost of preparing a final proposal and, if so, an estimate of theamount of the partial reimbursement.

(Added to NRS by 1999, 3469; A 2001, 252, 2015, 2022; 2003, 119, 2131, 2441; 2005, 1810)

NRS 338.1725 Selectionof finalists based on preliminary proposals; availability to public of resultsof evaluations of preliminary proposals and rankings of design-build teams.

1. The public body shall select at least two but notmore than four finalists from among the design-build teams that submittedpreliminary proposals. If the public body does not receive at least twopreliminary proposals from design-build teams that the public body determinesto be qualified pursuant to this section and NRS338.1721, the public body may not contract with a design-build team for thedesign and construction of the public work.

2. The public body shall select finalists pursuant tosubsection 1 by:

(a) Verifying that each design-build team whichsubmitted a preliminary proposal satisfies the requirements of NRS 338.1721; and

(b) Conducting an evaluation of the qualifications ofeach design-build team that submitted a preliminary proposal, including,without limitation, an evaluation of:

(1) The professional qualifications andexperience of the members of the design-build team;

(2) The performance history of the members ofthe design-build team concerning other recent, similar projects completed bythose members, if any;

(3) The safety programs established and thesafety records accumulated by the members of the design-build team; and

(4) The proposed plan of the design-build teamto manage the design and construction of the public work that sets forth indetail the ability of the design-build team to design and construct the publicwork.

3. After the selection of finalists pursuant to thissection, the public body shall make available to the public the results of theevaluations of preliminary proposals conducted pursuant to paragraph (b) ofsubsection 2 and the rankings of the design-build teams who submittedpreliminary proposals.

(Added to NRS by 1999, 3470; A 2001, 2016, 2022; 2003, 119; 2005, 1811)

NRS 338.1727 Requestfor and submission of final proposals; selection or rejection of finalproposals; awarding of contract; partial reimbursement of unsuccessfulfinalists in certain circumstances; contents of contract; availability topublic of certain information.

1. After selecting the finalists pursuant to NRS 338.1725, the public body shallprovide to each finalist a request for final proposals for the public work. Therequest for final proposals must:

(a) Set forth the factors that the public body will useto 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 besubmitted to the public body.

2. If one or more of the finalists selected pursuantto NRS 338.1725 is disqualified orwithdraws, the public body may select a design-build team from the remainingfinalist or finalists.

3. Except as otherwise provided in this subsection, inassigning the relative weight to each factor for selecting a design-build teampursuant to subsection 1, the public body shall assign, without limitation, arelative weight of 5 percent to the possession of a certificate of eligibilityto receive a preference in bidding on public works and a relative weight of atleast 30 percent to the proposed cost of design and construction of the publicwork. If any federal statute or regulation precludes the granting of federalassistance or reduces the amount of that assistance for a particular publicwork because of the provisions of this subsection relating to preference inbidding on public works, those provisions of this subsection do not applyinsofar as their application would preclude or reduce federal assistance forthat public work.

4. A final proposal submitted by a design-build teampursuant to this section must be prepared thoroughly and be responsive to thecriteria that the public body will use to select a design-build team to designand construct the public work described in subsection 1. A design-build teamthat submits a final proposal which is not responsive shall not be awarded thecontract and shall not be eligible for the partial reimbursement of costsprovided for in subsection 7.

5. A final proposal is exempt from the requirements ofNRS 338.141.

6. After receiving and evaluating the final proposalsfor the public work, the public body, at a regularly scheduled meeting, shall:

(a) Select the final proposal, using the criteria setforth pursuant to subsections 1 and 3, and award the design-build contract tothe design-build team whose proposal is selected; or

(b) Reject all the final proposals.

7. If a public body selects a final proposal andawards a design-build contract pursuant to paragraph (a) of subsection 6, thepublic body shall:

(a) Partially reimburse the unsuccessful finalists ifpartial reimbursement was provided for in the request for preliminary proposalspursuant to paragraph (j) of subsection 2 of NRS338.1723. The amount of reimbursement must not exceed, for eachunsuccessful finalist, 3 percent of the total amount to be paid to thedesign-build team as set forth in the design-build contract.

(b) Make available to the public the results of theevaluation of final proposals that was conducted and the ranking of thedesign-build teams who submitted final proposals. The public body shall notrelease to a third party, or otherwise make public, financial or proprietaryinformation 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 thatthe public body will pay for the performance of all the work required by thecontract, excluding any amount related to costs that may be incurred as aresult of unexpected conditions or occurrences as authorized by the contract;

(2) An amount that is the maximum amount thatthe public body will pay for the performance of the professional servicesrequired by the contract; and

(3) A date by which performance of the workrequired by the contract must be completed.

(c) May set forth the terms by which the design-buildteam agrees to name the public body, at the cost of the public body, as anadditional insured in an insurance policy held by the design-build team.

(d) Except as otherwise provided in paragraph (e), mustnot require the design professional to defend, indemnify or hold harmless thepublic body or the employees, officers or agents of that public body from anyliability, 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 andagents of the public body from any liabilities, damages, losses, claims,actions or proceedings, including, without limitation, reasonable attorneysfees, that are caused by the negligence, errors, omissions, recklessness orintentional misconduct of the design-build team or the employees or agents ofthe design-build team in the performance of the contract.

(f) Must require that the design-build team to whom acontract is awarded assume overall responsibility for ensuring that the designand construction of the public work is completed in a satisfactory manner.

9. Upon award of the design-build contract, the publicbody shall make available to the public copies of all preliminary and finalproposals received.

(Added to NRS by 1999, 3471; A 2001, 1272, 2017, 2022; 2003, 33, 119, 2027, 2132, 2442; 2005, 1812)

NOTIFICATION OF LICENSING BOARDS

NRS 338.175 Substantiallyincomplete or rejected plans submitted by registered architect, interiordesigner, residential designer or landscape architect.A public body shall notify the State Board of Architecture, InteriorDesign and Residential Design or the State Board of Landscape Architecture, asapplicable, in writing if a registered architect, interior designer,residential designer or landscape architect:

1. Submits plans for a project which are substantiallyincomplete; or

2. Submits plans for the same project which arerejected by the public body at least three times.

(Added to NRS by 1997, 1409; A 2003, 2444)

NRS 338.176 Substantiallyincomplete or rejected plans submitted by licensed professional engineer orland surveyor. A public body shall notify theState Board of Professional Engineers and Land Surveyors in writing if alicensed professional engineer or land surveyor:

1. Submits plans that are substantially incomplete; or

2. Submits plans for the same public work that arerejected by the public body at least three times.

(Added to NRS by 1997, 156)

DESIGN, CONSTRUCTION, RENOVATION AND DEMOLITION OF PUBLICWORKS

General Provisions

NRS 338.177 Leaseof property acquired by local government for public work pending completion ofpublic work.

1. Real property acquired by a governing body for apublic work may be leased, pending the completion of the public work but fornot more than 5 years, upon such terms and conditions as the governing bodyprescribes.

2. The governing body shall:

(a) Adopt the procedures for entering into such a leaseat a public hearing held thereon; and

(b) Offer to lease the property to the person from whomit 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 tomitigate any adverse effect upon the adjacent area. Any revenue from the leasethat is not needed to maintain the property must be used to offset the cost ofthe public work for which the property was acquired.

(Added to NRS by 1995, 156; A 2003, 2444)

NRS 338.180 Accommodationof physically handicapped or disabled persons; verification of conformity withrequirements; enforcement.

1. The Legislature of the State of Nevada declaresthat:

(a) The primary purpose of this section is to provide,subject to the limitations set forth in this section, for the removal andelimination of architectural barriers to the physically handicapped in publicbuildings and facilities designed after July 1, 1973, in order to encourage andfacilitate the employment of the physically handicapped and to make publicbuildings accessible to and usable by the physically handicapped; and

(b) It is the intent of the Legislature that insofar aspossible all buildings and facilities used by the public be accessible to, andfunctional for, the physically handicapped, without loss of function, space orfacility where the general public is concerned.

2. All plans and specifications for the constructionof public buildings and facilities owned by a public body must, after July 1,1973, provide facilities and features for the physically handicapped so thatbuildings which are normally used by the public are constructed with entranceramps, toilet facilities, drinking fountains, doors and public telephonesaccessible to and usable by the physically handicapped. In addition, all plansand specifications for the construction or alteration of public buildings andfacilities owned by a public body must comply with the applicable requirementsof 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 AccessibilityGuidelines for Buildings and Facilities set forth in Appendix A of Part 36 ofTitle 28 of the Code of Federal Regulations;

(b) Minimum Guidelines and Requirements for AccessibleDesign, 36 C.F.R. 1190.1 et seq.; and

(c) Fair Housing Act, 42 U.S.C. 3604, and theregulations adopted pursuant thereto.

Therequirements of paragraph (a) of this subsection are not satisfied if the plansand specifications comply solely with the Uniform Federal AccessibilityStandards set forth in Appendix A of Part 101-19.6 of Title 41 of the Code ofFederal Regulations.

3. All public bodies shall, in the design,construction and alteration of public buildings and facilities comply with theapplicable 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 Guidelinesfor Buildings and Facilities set forth in Appendix A of Part 36 of Title 28 ofthe Code of Federal Regulations;

(b) Minimum Guidelines and Requirements for AccessibleDesign, 36 C.F.R. 1190.1 et seq.; and

(c) Fair Housing Act, 42 U.S.C. 3604, and theregulations adopted pursuant thereto.

Therequirements of paragraph (a) of this subsection are not satisfied if thepublic body complies solely with the Uniform Federal Accessibility Standardsset forth in Appendix A of Part 101-19.6 of Title 41 of the Code of FederalRegulations.

4. In each public building and facility owned by apublic body, each entrance to a corridor which leads to a toilet facility mustbe marked with a sign which:

(a) Conforms to the requirements related to signagecontained in 4.30 et seq. of the Americans with Disabilities ActAccessibility Guidelines for Buildings and Facilities set forth in Appendix Aof 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 genderof persons who may use the toilet facility; and

(2) If the toilet facility is for the exclusiveuse of persons of one gender:

(I) Indicate that the toilet facility isfor the exclusive use of persons of that gender; and

(II) Provide direction to a toiletfacility that may be used by persons of the other gender.

5. The State Public Works Board shall verify that allpublic buildings and facilities owned by the State of Nevada conform with therequirements of this section. Each political subdivision shall verify that allpublic buildings and facilities owned by the political subdivision conform withthe requirements of this section.

6. A person may report a violation of this section tothe Attorney General.

7. Upon receiving a report pursuant to subsection 6,the Attorney General shall notify the public body responsible for the allegedviolation. Not later than 30 days after receiving such a notification, thepublic body shall:

(a) Present evidence to the Attorney General that it isin compliance with this section; or

(b) Begin any action necessary to comply with therequirements of this section and notify the Attorney General of the date onwhich it will be in compliance with those requirements.

8. If the public body responsible for the allegedviolation fails to comply with this section, the Attorney General shall takesuch action as is necessary to ensure compliance with this section, including,without limitation, commencing proceedings in a court of competentjurisdiction, if appropriate.

(Added to NRS by 1973, 394; A 1975, 155; 1985, 42,274; 1999, 2852; 2001, 704; 2003, 2444)

NRS 338.185 Publicbody to reimburse contractor for certain costs of locating underground facilityof public utility. If a public body directs acontractor to locate the facility of a public utility placed underground on thesite of a public work, the public body shall reimburse the contractor for thedifference between the costs incurred in finding the actual location of the facilityand the costs of finding the reputed location of the facility.

(Added to NRS by 1987, 1042)

Energy and Environmental Design Requirements

NRS 338.187 Standardsfor energy and environmental design. [Effective July 1, 2007.]

1. Except as otherwise provided in subsection 2, eachoccupied public building whose construction will be sponsored or financed bythis State must, when completed, meet the requirements to be certified at ormeet the equivalent of the base level or higher in accordance with the Leadershipin Energy and Environmental Design Green Building Rating System, or anequivalent standard, as adopted by the Director of the Office of Energypursuant to NRS 701.217.

2. During each biennium, at least two occupied publicbuildings whose construction will be sponsored or financed by this State mustbe designated as demonstration projects and must, when completed, meet therequirements to be certified at or meet the equivalent of the silver level orhigher in accordance with the Leadership in Energy and Environmental DesignGreen Building Rating System, or an equivalent standard, as adopted by theDirector of the Office of Energy pursuant to NRS701.217 if:

(a) The Director of the Office of Energy, inconsultation with the State Board of Examiners and the State Public WorksBoard, has determined that it is feasible for the buildings to meet suchrequirements and standards and that it is a cost-effective investment to do so;and

(b) The agency or agencies that will occupy thebuildings have agreed to allow the buildings to be designated as demonstrationprojects pursuant to this subsection.

3. Each occupied public building whose construction issponsored or financed by a local government may meet the requirements to becertified at or meet the equivalent of the base level or higher in accordancewith the Leadership in Energy and Environmental Design Green Building RatingSystem, or an equivalent standard, as adopted by the Director of the Office ofEnergy pursuant to NRS 701.217.

4. As used in this section, occupied public buildingmeans a public building used primarily as an office space or work area forpersons employed by this State or a local government. The term does not includea public building used primarily as a storage facility or warehouse or forsimilar purposes.

(Added to NRS by 2005, 22nd SpecialSession, 69, effective July 1, 2007)

NRS 338.190 Analysisof certain public buildings before construction or renovation to estimatecertain costs and to identify measures for conservation of energy and use ofalternative types of energy; requirements for contracts for cost-savingmeasures.

1. Before it begins to construct or renovate anyoccupied public building which is larger than 20,000 square feet, each agencyof the State or a political subdivision, district, authority, board or publiccorporation of the State shall obtain a detailed analysis of the cost ofoperating and maintaining the building for its expected useful life.

2. The analysis must:

(a) Estimate the cost to construct or renovate theoccupied 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 efficiencythat will generate cost savings within 10 years that are equal to or greaterthan the cost of implementation; and

(3) Use of types of energy which arealternatives to fossil fuels, such as active and passive applications of solarenergy, wind and geothermal energy,

which can beincluded in the building in its construction or renovation.

3. The agency of government which proposes toconstruct or renovate the occupied public building must consider the results ofthe analysis required by this section in deciding upon the type of constructionor renovation and the components and systems which will be included in thebuilding. The agency of government shall consider the use of types of energywhich are alternatives to fossil fuels and any other energy conservationmeasures identified in the analysis into the design of the building if it isdetermined to be in the best interest of the State.

4. The agency of government may select, through thebidding process, a contractor to conduct the analysis required pursuant to thissection. If a contractor is selected to conduct the analysis, any contract forthe purchase, lease or rental of cost-saving measures must provide that allpayments, other than any obligations that become due if the contract isterminated before the contract expires, be made from the cost savings.

5. As used in this section, occupied public buildingmeans a public building used primarily as an office space or work area forpersons employed by an agency of the State or a political subdivision,district, authority, board or public corporation of the State. The term doesnot include a public building used primarily as a storage facility or warehouseor for similar purposes.

(Added to NRS by 1981, 147; A 2005, 22nd SpecialSession, 70)

NRS 338.1905 Retrofittingof state buildings for energy efficiency: Appointment of energy retrofitcoordinators and person to assist coordinators. [Expires by limitation on May1, 2013.]

1. The Governor shall designate one or more energyretrofit coordinators for the buildings occupied by the Executive Branch ofgovernment, including, without limitation, the Nevada System of HigherEducation and the Public Employees Retirement System.

2. The Supreme Court shall designate an energyretrofit coordinator for the buildings occupied by the Judicial Branch of StateGovernment.

3. The Legislature, by concurrent resolution, shalldesignate an energy retrofit coordinator for the buildings occupied by theLegislative Branch of government. If the position becomes vacant at a time whenthe Legislature is not in session, the Legislative Commission may designate areplacement.

4. The Governor shall appoint a person who is trainedin the management of facilities to assist the energy retrofit coordinator ofthe:

(a) Judicial Branch of government, upon request of theSupreme Court.

(b) Legislative Branch of government, upon request ofthe Legislative Commission.

A personappointed to assist an energy retrofit coordinator pursuant to this subsectionshall provide all assistance requested including making recommendations forproposals for retrofitting buildings and any other assistance necessary toenable 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)

NRS 338.1906 Retrofittingof state buildings for energy efficiency: Duties of energy retrofitcoordinators and State Board of Examiners; procedures for requesting andapproving proposals; limitation on money committed beyond biennium;restrictions on approval of change orders to executed contracts; projectsexempt from certain procedural requirements. [Expires by limitation on May 1,2013.]

1. Upon request by or consultation with an officer oremployee of the State who is responsible for the budget of a department, board,commission, agency or other entity of the State, the appropriate energyretrofit coordinator may request the approval of the State Board of Examinersto advertise a request for proposals to retrofit a building, or any portionthereof, that is occupied by the department, board, commission, agency or otherentity, to make the use of energy in the building, or portion thereof, moreefficient.

2. Upon approval of the State Board of Examiners, thecoordinator shall prepare a request for proposals for the retrofitting of oneor more buildings, or any portion thereof, which includes:

(a) The name and location of the coordinator;

(b) A brief description of the requirements for theinitial audit of the use of energy and the retrofitting;

(c) Where and how specifications of the requirementsfor the initial audit of the use of energy and the retrofitting may beobtained;

(d) The date and time not later than which proposalsmust 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 atleast one newspaper of general circulation in the State.

4. After receiving the proposals but before making adecision on the proposals, the coordinator shall consider:

(a) The best interests of the State;

(b) The experience and financial stability of thepersons submitting the proposals;

(c) Whether the proposals conform with the terms of therequest for proposals;

(d) The prices of the proposals; and

(e) Any other factor disclosed in the request forproposals.

5. The coordinator shall determine the relative weightof each factor before a request for proposals is advertised. The weight of eachfactor must not be disclosed before the date proposals are required to besubmitted to the coordinator.

6. After reviewing the proposals, if the coordinatordetermines that the dollar value of the annual energy savings resulting fromthe retrofit will meet or exceed the total annual contract payments to be madeby the State, including any financing charges to be incurred by the State overthe life of the contract, the coordinator shall select the best proposal andrequest the approval of the State Board of Examiners to award the contract. Therequest for approval must include the proposed method of financing the auditand retrofit, which may include an installment contract, a shared savingscontract or any other contract for a reasonable financing arrangement. Such acontract may commit the State to make payments beyond the biennium in which thecontract is executed, but the interest due on any debt created pursuant to thissection must be paid at least semiannually, payments must be made on theprincipal at least annually and the debt must be fully repaid on or before May1, 2013.

7. Before approving a retrofit pursuant to thissection, the State Board of Examiners shall evaluate any projects that wouldutilize shared savings as a method of payment or any method of financing thatwould commit the State to make payments beyond the biennium in which thecontract is executed to ensure that:

(a) The dollar value of the annual energy savingsresulting from the retrofit will meet or exceed the total annual contractpayments to be made by the State, including any financing charges to beincurred by the State over the life of the contract;

(b) The State is likely to continue to occupy thebuilding for the entire period required to recoup the cost of the retrofit inenergy savings; and

(c) The limitation set forth in subsection 9 will notbe exceeded.

8. Upon approval of the State Board of Examiners, thecoordinator shall execute the contract and notify:

(a) The State Board of Examiners of the total amount ofmoney committed by the contract per year; and

(b) Each officer or employee who is responsible for thebudget of a department, board, commission, agency or other entity whichoccupies a portion of a building that will be retrofitted of the amount ofmoney it will be required to pay annually for its portion of the retrofit.

9. The total amount of money committed beyond thebiennium 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 belevied to pay the principal and interest on any indebtedness resulting from acontract executed pursuant to this section as they become due if the requiredpayments will not be made by the entity that executed the contract from itsbudgeted accounts and the proceeds from any such taxes are hereby speciallyappropriated for this purpose.

11. A change order to a contract executed pursuant tothis section may not be approved by the State if the cost of the change orderwould cause the dollar value of the annual energy savings resulting from theretrofit to be less than the total annual contract payments to be made by theState, including any financing charges to be incurred by the State over thelife of the contract, unless approval of the change order is more economicallyfeasible than termination of the retrofit.

12. NRS 338.1385does not apply to a project for which a request for proposals is advertised andthe 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)

NRS 338.1907 Retrofittingof local governmental buildings for energy efficiency: Duties of energyretrofit coordinators and local governments; procedures for requesting andapproving proposals; restrictions on approval of change orders to executedcontracts; projects exempt from certain procedural requirements. [Expires bylimitation on May 1, 2013.]

1. A governing body may designate one or more energyretrofit coordinators for the buildings occupied by the local government.

2. If such a coordinator is designated, upon requestby or consultation with an officer or employee of the local government who isresponsible for the budget of a department, board, commission or other entityof the local government, the coordinator may request the approval of thegoverning body to advertise a request for proposals to retrofit a building, orany portion thereof, that is occupied by the department, board, commission orother entity, to make the use of energy in the building, or portion thereof,more efficient.

3. Upon approval of the governing body, thecoordinator shall prepare a request for proposals for the retrofitting of oneor more buildings, or any portion thereof, which includes:

(a) The name and location of the coordinator;

(b) A brief description of the requirements for theinitial audit of the use of energy and the retrofitting;

(c) Where and how specifications of the requirementsfor the initial audit of the use of energy and the retrofitting may beobtained;

(d) The date and time not later than which proposalsmust 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 anewspaper qualified pursuant to chapter 238 ofNRS that is published in the county where the public work will be performed. Ifno qualified newspaper is published in the county where the public work will beperformed, the required advertisement must be published in some qualifiednewspaper that is printed in the State of Nevada and has a general circulationin the county where the public work will be performed.

5. After receiving the proposals but before making adecision on the proposals, the coordinator shall consider:

(a) The best interests of the local government;

(b) The experience and financial stability of thepersons submitting the proposals;

(c) Whether the proposals conform with the terms of therequest for proposals;

(d) The prices of the proposals; and

(e) Any other factor disclosed in the request forproposals.

6. The coordinator shall determine the relative weightof each factor before a request for proposals is advertised. The weight of eachfactor must not be disclosed before the date proposals are required to besubmitted to the coordinator.

7. After reviewing the proposals, if the coordinatordetermines that the dollar value of the annual energy savings resulting fromthe retrofit will meet or exceed the total annual contract payments to be madeby the local government, including any financing charges to be incurred by thelocal government over the life of the contract, the coordinator shall selectthe best proposal and request the approval of the governing body to award thecontract. The request for approval must include the proposed method offinancing the audit and retrofit, which may include an installment contract, ashared savings contract or any other contract for a reasonable financing arrangement.Such a contract may commit the local government to make payments beyond thefiscal year in which the contract is executed or beyond the terms of office ofthe governing body, or both.

8. Before approving a retrofit pursuant to thissection, the governing body shall evaluate any projects that would utilizeshared savings as a method of payment or any method of financing that wouldcommit the local government to make payments beyond the fiscal year in whichthe contract is executed or beyond the terms of office of the governing body toensure that:

(a) The dollar value of the annual energy savingsresulting from the retrofit will meet or exceed the total annual contractpayments to be made by the local government related to the retrofit, includingany financing charges to be incurred by the local government over the life ofthe contract; and

(b) The local government is likely to continue tooccupy the building for the entire period required to recoup the cost of the retrofitin energy savings.

9. Upon approval of the governing body, thecoordinator shall execute the contract and notify each officer or employee whois responsible for the budget of a department, board, commission or otherentity which occupies a portion of a building that will be retrofitted of theamount of money it will be required to pay annually for its portion of theretrofit.

10. A change order to a contract executed pursuant tothis section may not be approved by the local government if the cost of thechange order would cause the dollar value of the annual energy savingsresulting from the retrofit to be less than the total annual contract paymentsto be made by the local government, including financing charges to be incurredby the local government over the life of the contract, unless approval of thechange order is more economically feasible than termination of the retrofit.

11. NRS 338.1385and 338.143 do not apply to a projectfor which a request for proposals is advertised and the contract is awardedpursuant 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

NRS 338.193 Standardsfor plumbing fixtures.

1. Each public building sponsored or financed by apublic body must meet the standards made applicable for the building pursuantto this section.

2. Except as otherwise provided in subsections 3 and4, each public building, other than a prison or jail, on which constructionbegins on or after March 1, 1992, and each existing public building which isexpanded or renovated on or after March 1, 1992, must incorporate the followingminimal standards for plumbing fixtures:

(a) A toilet which uses water must not be installedunless its consumption of water does not exceed 3.5 gallons of water per flush.

(b) A shower apparatus which uses more than 3 gallonsof water per minute must not be installed unless it is equipped with a deviceto reduce water consumption to 3 gallons of water or less per minute.

(c) Each faucet installed in a lavatory or kitchen mustnot allow water to flow at a rate greater than 3 gallons per minute.

(d) A toilet or urinal which employs a timing device orother mechanism to flush periodically irrespective of demand must not beinstalled.

3. Except as otherwise provided in subsection 4, eachpublic building, other than a prison or jail, on which construction begins onor after March 1, 1993, and each existing public building which is expanded orrenovated on or after March 1, 1993, must incorporate the following minimalstandards for plumbing fixtures:

(a) A toilet which uses water must not be installedunless its consumption of water does not exceed 1.6 gallons of water per flush.

(b) A shower apparatus which uses more than 2.5 gallonsof water per minute must not be installed unless it is equipped with a deviceto reduce water consumption to 2.5 gallons of water or less per minute.

(c) A urinal which uses water must not be installedunless its consumption of water does not exceed 1 gallon of water per flush.

(d) A toilet or urinal which employs a timing device orother mechanism to flush periodically, irrespective of demand, must not beinstalled.

(e) A urinal which continually flows or flushes watermust not be installed.

(f) Each faucet installed in a lavatory or kitchen mustnot allow water to flow at a rate greater than 2.5 gallons per minute.

(g) Each faucet installed in a public restroom mustcontain a mechanism which closes the faucet automatically after a predeterminedamount of water has flowed through the faucet. Multiple faucets that areactivated from a single point must not be installed.

4. The requirements of this section for theinstallation of certain plumbing fixtures do not apply to any portion of anexisting public building which is not being expanded or renovated.

(Added to NRS by 1991, 1168)

NRS 338.195 Surveyfor presence of asbestos required before renovation or demolition of publicbuilding.

1. No public building or other public structure may berenovated or demolished until a survey of the building or structure has beenmade for the presence of asbestos or material containing asbestos.

2. As used in this section, material containingasbestos has the meaning ascribed to it by the Division of IndustrialRelations of the Department of Business and Industry pursuant to NRS 618.765.

(Added to NRS by 1989, 1280; A 1993, 1567)

NRS 338.200 Prohibitionagainst naming public building or structure after member of governing body. No public building or other public structure, other than astreet or road, may be named after a person who is at the time a member of thegoverning body which has jurisdiction or control over the building or structureor which is responsible for it.

(Added to NRS by 1981, 1337)

PROGRESS PAYMENTS

General Provisions

NRS 338.400 Definitions. As used in NRS 338.400to 338.645, inclusive, unless thecontext otherwise requires, the words and terms defined in NRS 338.415 to 338.435, inclusive, have the meaningsascribed to them in those sections.

(Added to NRS by 1999, 1983; A 2005, 1814)

NRS 338.405 Contractdefined. Repealed. (See chapter 424, Statutes of Nevada 2005,at page 1815.)

 

NRS 338.410 Contractordefined. Repealed. (See chapter 424, Statutes of Nevada 2005,at page 1815.)

 

NRS 338.415 Progressbill defined. Progress bill means a billfor a portion of the supplies, work performed or services provided by acontractor, subcontractor or supplier for a public work.

(Added to NRS by 1999, 1983)

NRS 338.420 Progresspayment defined. Progress payment means thepayment for a portion of the supplies, work performed or services provided by acontractor, subcontractor or supplier for a public work.

(Added to NRS by 1999, 1983)

NRS 338.425 Retainagedefined. Retainage means the amount authorizedto be withheld from a progress payment pursuant to the provisions of NRS 338.515, 338.555 or 338.595.

(Added to NRS by 1999, 1983)

NRS 338.430 Retainagebill defined. Retainage bill means a billfor the amount authorized to be withheld from a progress payment pursuant tothe provisions of NRS 338.515, 338.555 or 338.595.

(Added to NRS by 1999, 1983)

NRS 338.435 Retainagepayment defined. Retainage payment meansthe payment of the amount authorized to be withheld from a progress payment pursuantto the provisions of NRS 338.515, 338.555 or 338.595.

(Added to NRS by 1999, 1983)

NRS 338.440 Subcontractdefined. Repealed. (See chapter 424, Statutes of Nevada 2005,at page 1815.)

 

NRS 338.445 Subcontractordefined. Repealed. (See chapter 424, Statutes of Nevada 2005,at page 1815.)

 

NRS 338.450 Supplierdefined. Repealed. (See chapter 424, Statutes of Nevada 2005,at page 1815.)

 

NRS 338.455 Methodsto be used for providing notice. Each notice requiredpursuant to NRS 338.400 to 338.645, inclusive, must be:

1. Delivered personally; or

2. Sent by facsimile machine and delivered by regularor certified mail.

(Added to NRS by 1999, 1990)

NRS 338.460 Datesto be used for calculating accrual of interest on retainage. Interest that is required to be paid on the retainageaccrues from the date the retainage is withheld until the date the retainage ispaid to the person from whom the retainage was withheld.

(Added to NRS by 1999, 1984)

Applicability and Limitations

NRS 338.480 Provisionsinapplicable to certain contracts made by Department of Transportation. The provisions of NRS338.400 to 338.645, inclusive, donot apply to a contract entered into by the Department of Transportationpursuant to chapter 408 of NRS.

(Added to NRS by 1999, 1984)

NRS 338.485 Limitationson waiving certain rights, obligations and liabilities.

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 contractor other agreement that:

(a) Requires a person to waive a right set forth in theprovisions of NRS 338.400 to 338.645, inclusive; or

(b) Relieves a person of an obligation or liabilityimposed by the provisions of NRS 338.400to 338.645, inclusive,

is void.

(Added to NRS by 1999, 1990)

NRS 338.490 Limitationson requiring release or waiver of right to receive progress payment orretainage payment. Any release or waiverrequired to be provided by a contractor, subcontractor or supplier to receive aprogress payment or retainage payment must be:

1. Conditional for the purpose of receiving paymentand shall be deemed to become unconditional upon the receipt of the money dueto the contractor, subcontractor or supplier; and

2. Limited to claims related to the invoiced amount ofthe labor, materials, equipment or supplies that are the subject of theprogress bill or retainage bill.

(Added to NRS by 1999, 1989)

Payments Made by Public Body to Contractor

NRS 338.510 Submittalof progress bills. A contractor shall submit aprogress bill to the public body monthly or more frequently if the provisionsof the contract so provide.

(Added to NRS by 1999, 1984)

NRS 338.515 Timefor making payments; amounts paid; amounts withheld as retainage; rate ofinterest paid on amounts withheld; powers of Labor Commissioner when workman isowed wages.

1. Except as otherwise provided in NRS 338.525, a public body and its officersor agents awarding a contract for a public work shall pay or cause to be paidto a contractor the progress payments due under the contract within 30 daysafter the date the public body receives the progress bill or within a shorterperiod if the provisions of the contract so provide. Not more than 90 percentof the amount of any progress payment may be paid until 50 percent of the workrequired by the contract has been performed. Thereafter the public body may payany of the remaining progress payments without withholding additional retainageif, in the opinion of the public body, satisfactory progress is being made inthe work.

2. Except as otherwise provided in NRS 338.525, a public body shall identifyin the contract and pay or cause to be paid to a contractor the actual cost ofthe supplies, materials and equipment that:

(a) Are identified in the contract;

(b) Have been delivered and stored at a location, andin the time and manner, specified in a contract by the contractor or asubcontractor or supplier for use in a public work; and

(c) Are in short supply or were specially made for thepublic work,

within 30days after the public body receives a progress bill from the contractor forthose supplies, materials or equipment.

3. A public body shall pay or cause to be paid to thecontractor at the end of each quarter interest for the quarter on any amountwithheld by the public body pursuant to NRS338.400 to 338.645, inclusive, at arate equal to the rate quoted by at least three financial institutions as thehighest rate paid on a certificate of deposit whose duration is approximately90 days on the first day of the quarter. If the amount due to a contractorpursuant to this subsection for any quarter is less than $500, the public bodymay hold the interest until:

(a) The end of a subsequent quarter after which theamount of interest due is $500 or more;

(b) The end of the fourth consecutive quarter for whichno interest has been paid to the contractor; or

(c) The amount withheld under the contract is duepursuant to NRS 338.520,

whicheveroccurs first.

4. If the Labor Commissioner has reason to believethat a workman is owed wages by a contractor or subcontractor, he may requirethe public body to withhold from any payment due the contractor under thissection and pay the Labor Commissioner instead, an amount equal to the amountthe Labor Commissioner believes the contractor owes to the workman. This amountmust be paid to the workman by the Labor Commissioner if the matter is resolvedin his favor, otherwise it must be returned to the public body for payment tothe contractor.

(Added to NRS by 1973, 1159; A 1977, 1035; 1981, 552;1983, 1591; 1985, 491; 1999,1992; 2003, 799,2448)

NRS 338.520 Paymentof outstanding balance upon occupancy, use or recording of notice ofcompletion. Except with respect to any paymentwithheld pursuant to NRS 338.525, if:

1. A public body or a person acting with the authorityof the public body occupies or begins use of a public work or a portion of apublic work;

2. A notice of completion for a public work or aportion of a public work is recorded as provided in NRS 108.228; or

3. A public body partially occupies one or morebuildings of a public work,

the publicbody shall pay or cause to be paid to the contractor any outstanding paymentdue, including, without limitation, retainage, and any interest accrued thereonwithin 30 days after whichever event described in subsection 1, 2 or 3 occursfirst. The amount paid must be in the proportion that the value of the portionof the public work which is used or occupied bears to the total value of thepublic work.

(Added to NRS by 1999, 1984)

NRS 338.525 Withholdingamounts for failure of contractor to comply with contract or applicablebuilding code, law or regulation; payment of amounts withheld upon confirmationof correction of condition.

1. A publicbody may, but is not required to, withhold from a progress payment or retainagepayment an amount sufficient to pay the expenses the public body reasonablyexpects to incur as a result of the failure of the contractor to comply withthe contract or applicable building code, law or regulation.

2. A publicbody shall, within 20 days after it receives a progress bill or retainage billfrom a contractor, give a written notice to the contractor of any amount thatwill be withheld pursuant to this section. The written notice must set forth:

(a) The amountof the progress payment or retainage payment that will be withheld from thecontractor; and

(b) A detailedexplanation of the reason the public body will withhold that amount, including,without limitation, a specific reference to the provision or section of thecontract, or any documents related thereto, or the applicable building code,law or regulation with which the contractor has failed to comply.

The written notice must be signed byan authorized agent of the public body.

3. If the public body receives a written notice of thecorrection of the condition that is the reason for the withholding, signed byan authorized agent of the contractor, the public body shall, after confirmingthat the condition has been corrected, pay the amount withheld by the publicbody within 30 days after the public body receives the next progress bill orretainage bill.

(Added to NRS by 1999, 1984; A 2005, 1814)

NRS 338.530 Paymentof interest on amounts withheld improperly.

1. If a publicbody receives:

(a) A progressbill or retainage bill, fails to give a contractor a written notice of anywithholding in the manner set forth in subsection 2 of NRS 338.525, and does not pay thecontractor within 30 days after receiving the progress bill or retainage bill;or

(b) Acontractors written notice of the correction of a condition set forth pursuantto subsection 2 of NRS 338.525 as thereason for the withholding, signed by an authorized agent of the contractor,and fails to:

(1) Paythe amount of the progress payment or retainage payment that was withheld fromthe contractor within 30 days after the public body receives the next progressbill or retainage bill; or

(2) Objectto the scope and manner of the correction, within 30 days after the public bodyreceives the notice of correction, in a written statement that sets forth thereason for the objection and is signed by an authorized agent of the publicbody,

the public body shall pay to thecontractor, in addition to the entire amount of the progress bill or retainagebill or any unpaid portion thereof, interest from the 30th day on the amountdelayed, at a rate equal to the amount provided for in subsection 3 of NRS 338.515, until payment is made to thecontractor.

2. If the public body objects pursuant to subparagraph(2) of paragraph (b) of subsection 1, it shall pay to the contractor an amountequal to the value of the corrections to which the public body does not object.

(Added to NRS by 1999, 1985)

NRS 338.535 Publicbody to provide notice concerning progress payments and retainage payments tocertain subcontractors and suppliers. Within 5working days after a public body receives a written request from asubcontractor or supplier of the contractor with respect to a contract whichhas not been fully performed, the public body shall notify the subcontractor orsupplier in writing of the following:

1. The date the public body made a specified progresspayment or retainage payment to a contractor;

2. Whether the public body has paid the entire amountof a specified progress payment or retainage payment to the contractor; and

3. The amount withheld by the public body from aspecified progress payment or retainage payment to the contractor, if any.

(Added to NRS by 1999, 1985)

Payments Made by Contractor to Subcontractors andSuppliers

NRS 338.550 Timefor making payments; amounts paid. Except asotherwise provided in NRS 338.555, 338.560 and 338.565:

1. Each contractor shall disburse money paid to himpursuant to this chapter, including any interest which he receives, to hissubcontractors and suppliers within 10 days after he receives the money, indirect proportion to the subcontractors and suppliers basis in the progress billor retainage bill and any accrued interest thereon.

2. A contractor shall make payments to hissubcontractor or supplier in an amount equal to that subcontractors orsuppliers basis in the payments paid by the public body to the contractor forthe supplies, material and equipment identified in the contract between thecontractor and the public body, or between the subcontractor or supplier andthe contractor, within 10 days after the contractor has received a progresspayment or retainage payment from the public body for those supplies, materialsand equipment.

(Added to NRS by 1987, 559; A 1999, 1993)(Substitutedin revision for NRS 338.165)

NRS 338.555 Amountswithheld as retainage; payment of interest.

1. If a public body and a contractor enter into acontract for a public work, the contractor may withhold as retainage not morethan 10 percent from the amount of any progress payment due under a subcontractwhich is made before 50 percent of the work has been completed under thesubcontract. Thereafter the contractor shall pay any additional progresspayments due under the subcontract without withholding any additional retainageif, in the opinion of the contractor, satisfactory progress is being made inthe work under the subcontract, and the payment must be equal to that paid bythe public body to the contractor for the work performed by the subcontractor.

2. If the contractor receives a payment of interestearned on the retainage or an amount withheld from a progress payment, heshall, within 10 days after he receives the money, pay to each subcontractor orsupplier that portion of the interest received from the public body which isattributable to the retainage or amount withheld from a progress payment by thecontractor to the subcontractor or supplier.

(Added to NRS by 1973, 1160; A 1981, 553; 1983, 1592;1999, 1994)(Substitutedin revision for NRS 338.170)

NRS 338.560 Withholdingamounts for failure of subcontractor or supplier to comply with subcontract orapplicable building code, law or regulation or for claim for wages againstsubcontractor; payment of amounts withheld upon correction of condition.

1. A contractor may withhold from a progress paymentor retainage payment an amount sufficient to pay:

(a) The expenses the contractor reasonably expects toincur as a result of the failure of his subcontractor or supplier to complywith the subcontract or applicable building code, law or regulation.

(b) An amount withheld from payment to the contractorby a public body pursuant to subsection 4 of NRS338.515 for a claim for wages against the subcontractor.

2. A contractor shall, within 10 days after hereceives:

(a) A progress payment or retainage payment from thepublic body for an amount that is less than the amount set forth in theapplicable progress bill or retainage bill; or

(b) A progress bill or retainage bill from hissubcontractor or supplier,

give awritten notice to his subcontractor or supplier of any amount that will bewithheld pursuant to this section.

3. The written notice must:

(a) Set forth:

(1) The amount of the progress payment orretainage payment that will be withheld from his subcontractor or supplier; and

(2) A detailed explanation of the reason thecontractor will withhold that amount, including, without limitation, a specificreference to the provision or section of the subcontract, or documents relatedthereto, or applicable building code, law or regulation with which hissubcontractor 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 orsupplier the amount withheld by the public body or the contractor within 10days after:

(a) The contractor receives a written notice of thecorrection of the condition that is the reason for the withholding, signed byan authorized agent of the subcontractor or supplier; or

(b) The public body pays to the contractor the amountwithheld,

whicheveroccurs later.

(Added to NRS by 1999, 1985; A 2003, 2448)

NRS 338.565 Paymentof interest on amounts withheld improperly.

1. If a contractor makes payment to a subcontractor orsupplier more than 10 days after the occurrence of any of the following acts oromissions:

(a) The contractor fails to pay his subcontractor orsupplier in accordance with the provisions of subsection 1 of NRS 338.550;

(b) The contractor fails to give his subcontractor orsupplier the written notice of any withholding as required by subsections 2 and3 of NRS 338.560; or

(c) The contractor receives a subcontractors orsuppliers written notice of correction of the condition set forth pursuant tosubsection 4 of NRS 338.560 as thereason for the withholding, signed by an authorized agent of the subcontractoror supplier, and fails to:

(1) Pay the amount of the progress payment orretainage payment that was withheld from his subcontractor or supplier within10 days after the contractor receives the next progress bill or retainage bill;or

(2) Object to the scope and manner of thecorrection, within 10 days after receiving the written notice of correction, ina written statement that sets forth the reason for the objection and is signedby an authorized agent of the subcontractor, statement that sets forth thereason for the objection and is accompanied by a notarized affidavit signed bythe contractor,

thecontractor shall pay to the subcontractor or supplier, in addition to theentire amount of the progress bill or the retainage bill or any unpaid portionthereof, interest from the 10th day on the amount delayed, at a rate equal tothe lowest daily prime rate at the three largest banks or other financialinstitutions of the United States on the date the contract was executed plus 2percent, 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 thesubcontractor or supplier an amount that is equal to the value of thecorrections to which the contractor does not object.

(Added to NRS by 1999, 1986)

NRS 338.570 Contractorto provide notice concerning progress payments and retainage payments tocertain subcontractors and suppliers. Within 5working days after a contractor receives a written request from a subcontractoror supplier of his subcontractor or supplier with respect to a subcontractwhich has not been fully performed, he shall notify the subcontractor orsupplier of his subcontractor or supplier in writing of the following:

1. The date the contractor made a specified progresspayment or retainage payment to his subcontractor or supplier;

2. Whether the contractor has paid the entire amountof a specified progress payment or retainage payment to his subcontractor orsupplier; and

3. The amount withheld by the contractor from aspecified progress payment or retainage payment to his subcontractor orsupplier, if any.

(Added to NRS by 1999, 1987)

Payments Made by Subcontractor to Subcontractors andSuppliers

NRS 338.590 Timefor making payments; amounts paid. Except asotherwise provided in NRS 338.595, 338.600 and 338.605:

1. Each subcontractor shall disburse money paid to himpursuant to this chapter, including any interest which he receives, to hissubcontractors and suppliers within 10 days after he receives the money, indirect proportion to the subcontractors and suppliers basis in the progressbill or retainage bill and any accrued interest thereon.

2. A subcontractor shall make payments to hissubcontractor or supplier in an amount equal to that subcontractors orsuppliers basis in the payments paid by the contractor to him for thesupplies, materials and equipment identified in the contract between thecontractor and the public body, or in the subcontract between the subcontractoror supplier and the contractor, within 10 days after the subcontractor hasreceived a progress payment or retainage payment from the contractor for thosesupplies, materials and equipment.

(Added to NRS by 1999, 1987)

NRS 338.595 Amountswithheld as retainage; payment of interest.

1. If asubcontractor and another subcontractor or supplier enter into a subcontractfor a public work, the subcontractor may withhold as retainage not more than 10percent from the amount of any progress payment due under a subcontract whichis made before 50 percent of the work has been completed under the subcontract.The subcontractor shall pay any additional progress payments due under thesubcontract without withholding any additional retainage if, in the opinion ofthe subcontractor, satisfactory progress is being made in the work under thesubcontract. The payment must be equal to that paid by the contractor to himfor the work performed or supplies provided by his subcontractor or supplier.

2. If the subcontractor receives a payment of interestearned on the retainage or an amount withheld from a progress payment, heshall, within 10 days after receiving the money, pay to each of hissubcontractors or suppliers that portion of the interest received from thecontractor which is attributable to the retainage or amount withheld from aprogress payment by the subcontractor to his subcontractor or supplier.

(Added to NRS by 1999, 1987; A 2003, 2449)

NRS 338.600 Withholdingamounts for failure of subcontractor or supplier to comply with subcontract orapplicable building code, law or regulation; payment of amounts withheld uponcorrection of condition.

1. A subcontractor may withhold from a progresspayment or retainage payment an amount sufficient to pay the expenses thesubcontractor reasonably expects to incur as a result of the failure of hissubcontractor or supplier to comply with the subcontract or applicable buildingcode, law or regulation.

2. A subcontractor shall, within 10 days after hereceives:

(a) A progress payment or retainage payment from acontractor for an amount that is less than the amount set forth in theapplicable progress bill or retainage bill; or

(b) A progress bill or retainage bill from hissubcontractor or supplier,

give awritten notice to his subcontractor or supplier of any amount that will bewithheld pursuant to this section.

3. The written notice must:

(a) Set forth:

(1) The amount of the progress payment orretainage payment that will be withheld from his subcontractor or supplier; and

(2) A detailed explanation of the reason thesubcontractor will withhold that amount, including, without limitation, aspecific reference to the provision or section of the subcontract, or documentsrelated thereto, or applicable building code, law or regulation with which thesubcontractor or supplier has failed to comply; and

(b) Be signed by an authorized agent of thesubcontractor.

4. The subcontractor shall pay to his subcontractor orsupplier the amount withheld by the public body, contractor or subcontractorwithin 10 days after:

(a) The subcontractor receives a written notice of thecorrection of the condition that is the reason for the withholding, signed byan authorized agent of his subcontractor or supplier; or

(b) The contractor pays to the subcontractor the amountwithheld,

whicheveroccurs later.

(Added to NRS by 1999, 1988; A 2003, 2449)

NRS 338.605 Paymentof interest on amounts withheld improperly.

1. If a subcontractor makes payment to hissubcontractor or supplier more than 10 days after the occurrence of any of thefollowing acts or omissions:

(a) The subcontractor fails to pay his subcontractor orsupplier in accordance with the provisions of subsection 1 of NRS 338.590;

(b) The subcontractor fails to give his subcontractoror supplier the written notice of any withholding as required by subsections 2and 3 of NRS 338.600; or

(c) The subcontractor receives a written notice of thecorrection of a condition set forth pursuant to subsection 4 of NRS 338.600 as the reason for thewithholding from his subcontractor or supplier, signed by an authorized agentof his subcontractor or supplier, and fails to:

(1) Pay the amount of the progress payment orretainage payment that was withheld from his subcontractor or supplier within10 days after the subcontractor receives the subcontractors or suppliers nextprogress bill or retainage bill; or

(2) Object to the scope and manner of thecorrection, within 10 days after receiving the written notice of correction, ina written statement that sets forth the reason for the objection, signed by anauthorized agent of the subcontractor,

thesubcontractor shall pay to his subcontractor or supplier, in addition to the entireamount of the progress bill or the retainage bill or any unpaid portionthereof, interest from the 10th day on the amount delayed, at a rate equal tothe lowest daily prime rate at the three largest banks or other financialinstitutions 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 tosubparagraph (2) of paragraph (c) of subsection 1, the subcontractor shall payto his subcontractor or supplier an amount that is equal to the value of thecorrections to which he does not object.

(Added to NRS by 1999, 1988)

NRS 338.610 Subcontractorto provide notice concerning progress payments and retainage payments tocertain subcontractors and suppliers. Within 5working days after a subcontractor receives a written request from asubcontractor or supplier of his subcontractor or supplier with respect to asubcontract which has not been fully performed, he shall notify thesubcontractor or supplier of his subcontractor or supplier in writing of thefollowing:

1. The date the subcontractor made a specifiedprogress payment or retainage payment to his subcontractor or supplier;

2. Whether the subcontractor has paid the entireamount of a specified progress payment or retainage payment to hissubcontractor or supplier; and

3. The amount withheld by the subcontractor from aspecified progress payment or retainage payment to his subcontractor orsupplier, if any.

(Added to NRS by 1999, 1989)

Remedies

NRS 338.630 Actionby contractor for alternate writ of mandamus to compel performance by publicbody.

1. A contractor who believes that the public body hasfailed to perform a duty to:

(a) Make a payment;

(b) Provide written notice of any withholding; or

(c) Provide information upon request relating to anypayment with respect to a contract which has not been fully performed,

pursuant toone or more of the provisions of NRS 338.515to 338.535, inclusive, in a timelymanner may apply to the district court of the county in which the public workor a part thereof is located for an alternate writ of mandamus pursuant to NRS 34.150 to 34.310, inclusive, to require the publicbody to perform the duty required pursuant to such a provision.

2. The provisions of this section do not prevent apublic body from including a provision governing the payment of attorneys feesin a contract into which it enters with a contractor for a public work.

(Added to NRS by 1999, 1989)

NRS 338.635 Actionby subcontractor or supplier to remedy unjustified or excessive withholding.

1. A subcontractor or supplier who believes that theamount withheld by the contractor or subcontractor is not justified or isexcessive may apply to the district court of the county where the public workor a part thereof is located for an order directing the contractor orsubcontractor to appear before the court to show cause why the relief requestedshould not be granted.

2. The motion must:

(a) Set forth the grounds upon which relief isrequested; and

(b) Be accompanied by a notarized affidavit signed bythe petitioner or his attorney that sets forth the facts upon which the motionis based.

3. If the court orders a hearing based upon themotion, the petitioner shall serve the notice of the motion and the order ofthe court on the respondent within 3 days after the court issues the order. Thecourt shall conduct the hearing not less than 10 days and not more than 20 daysafter the court issues the order for a hearing.

4. The order for a hearing must include a statementthat, 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 therespondent, or a portion thereof;

(b) Interest on the amount that was withheld by therespondent, or a portion thereof;

(c) The costs incurred by the petitioner, including,without limitation, his attorneys fees; or

(d) Any combination of paragraphs (a), (b) and (c).

5. If, when the motion is filed, there is a civilaction pending between the petitioner and the respondent, the motion must beconsolidated into the civil action.

6. If the court determines that:

(a) The amount withheld is not justified, the courtshall order the respondent to pay to the petitioner the amount that waswithheld.

(b) The amount withheld is excessive, the court shallorder the respondent to pay to the petitioner an amount determined by thecourt.

(c) The amount withheld is justified, the court shallissue an order approving the amount that was withheld by the respondent.

7. The proceedings conducted pursuant to theprovisions of this section do not affect any other rights or remedies providedby law or contract.

(Added to NRS by 1999, 1990)

NRS 338.640 Awardof reasonable costs and attorneys fees to prevailing party.

1. The court or arbitrator shall award to acontractor, subcontractor or supplier who is the prevailing party in a civilaction or an arbitration proceeding to recover an amount that was required tobe paid to him pursuant to the provisions of NRS338.400 to 338.645, inclusive, hisreasonable costs and attorneys fees.

2. The provisions of NRS338.400 to 338.645, inclusive, donot prevent a public body from including a provision governing attorneys feesin a contract for a public work.

(Added to NRS by 1999, 1991)

NRS 338.645 Otherrights and remedies not affected. Theprovisions of NRS 338.400 to 338.645, inclusive, do not impair or affectthe rights of a contractor, subcontractor or supplier to whom any amount may beowed for work performed or materials, equipment or supplies furnished tomaintain a civil action or to submit any controversy arising under the contractto arbitration to recover that amount.

(Added to NRS by 1999, 1991)

 

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