Assembly Bill No. 424–Assemblyman Geddes (by request)

 

March 17, 2003

____________

 

Referred to Committee on Commerce and Labor

 

SUMMARY—Revises provisions relating to public works and state purchasing. (BDR 28‑959)

 

FISCAL NOTE:  Effect on Local Government: No.

                           Effect on the State: Yes.

 

~

 

EXPLANATION – Matter in bolded italics is new; matter between brackets [omitted material] is material to be omitted.

 

AN ACT relating to public works and state purchasing; providing in skeleton form for the revision of certain provisions relating to public works and state purchasing; and providing other matters properly relating thereto.

 

THE PEOPLE OF THE STATE OF NEVADA, REPRESENTED IN

SENATE AND ASSEMBLY, DO ENACT AS FOLLOWS:

 

1-1  Section 1. Chapter 338 of NRS is hereby amended by adding

1-2  thereto the provisions set forth as sections 2 and 3 of this act.

1-3  Sec. 2.  Notwithstanding any other provision of law to the

1-4  contrary, no change orders may be allowed with respect to any

1-5  public works project for which the estimated cost is more than

1-6  $500,000.

1-7  Sec. 3.  The State Contractors’ Board shall establish by

1-8  regulation a program pursuant to which a contractor who

1-9  demonstrates to the satisfaction of the Board that he has

1-10  completed in a satisfactory manner:

1-11      1.  The five most recent public works projects on which the

1-12  contractor performed work, each of which projects had an

1-13  estimated cost of more than $500,000; or

1-14      2.  All public works projects on which the contractor

1-15  performed work in the preceding 3-year period, each of which

1-16  projects had an estimated cost of more than $500,000,

1-17  may apply to the Board to receive indicia of qualification to

1-18  receive a 30 percent preference in bidding on public works. Such

2-1  indicia of qualification is separate from any certificate of

2-2  eligibility to receive a preference in bidding on public works that

2-3  the contractor may have received from the Board pursuant to NRS

2-4  338.1389 or 338.147.

2-5  Sec. 4.  NRS 338.1385 is hereby amended to read as follows:

2-6  338.1385  1.  Except as otherwise provided in subsection [7] 8

2-7  and NRS 338.1906 and 338.1907, this state, or a local government

2-8  that awards a contract for the construction, alteration or repair of a

2-9  public work in accordance with paragraph (a) of subsection 1 of

2-10  NRS 338.1373, or a public officer, public employee or other person

2-11  responsible for awarding a contract for the construction, alteration

2-12  or repair of a public work who represents the State or the local

2-13  government, shall not:

2-14      (a) Commence such a project for which the estimated cost

2-15  exceeds $100,000 unless it advertises in a newspaper of general

2-16  circulation in this state for bids for the project; or

2-17      (b) Divide such a project into separate portions to avoid the

2-18  requirements of paragraph (a).

2-19      2.  Except as otherwise provided in subsection [7,] 8, a public

2-20  body that maintains a list of properly licensed contractors who are

2-21  interested in receiving offers to bid on public works projects for

2-22  which the estimated cost is more than $25,000 but less than

2-23  $100,000 shall solicit bids from not more than three of the

2-24  contractors on the list for a contract of that value for the

2-25  construction, alteration or repair of a public work. The public body

2-26  shall select contractors from the list in such a manner as to afford

2-27  each contractor an equal opportunity to bid on a public works

2-28  project. A properly licensed contractor must submit a written

2-29  request annually to the public body to remain on the list. Offers for

2-30  bids which are made pursuant to this subsection must be sent by

2-31  certified mail.

2-32      3.  Each advertisement for bids must include a provision that

2-33  sets forth:

2-34      (a) The requirement that a contractor must be qualified pursuant

2-35  to NRS 338.1379 to bid on the contract or must be exempt from

2-36  meeting such qualifications pursuant to NRS 338.1383; and

2-37      (b) The period during which an application to qualify as a bidder

2-38  on the contract must be submitted.

2-39      4.  Approved plans and specifications for the bids must be on

2-40  file at a place and time stated in the advertisement for the inspection

2-41  of all persons desiring to bid thereon and for other interested

2-42  persons. Contracts for the project must be awarded on the basis of

2-43  bids received.

3-1  5.  Except as otherwise provided in subsection 6 and NRS

3-2  338.1389, a public body shall award a contract to the lowest

3-3  responsive and responsible bidder.

3-4  6.  Any bids received in response to an advertisement for bids

3-5  may be rejected if the [person responsible for awarding the contract]

3-6  public body or its authorized representative determines that:

3-7  (a) The bidder is not a qualified bidder pursuant to NRS

3-8  338.1379, unless the bidder is exempt from meeting such

3-9  qualifications pursuant to NRS 338.1383;

3-10      (b) The bidder is not responsive[;] or responsible;

3-11      (c) The quality of the services, materials, equipment or labor

3-12  offered does not conform to the approved plan or specifications; or

3-13      (d) The public interest would be served by such a rejection.

3-14      [6.] 7. Before the State or a local government may commence a

3-15  project subject to the provisions of this section, based upon a

3-16  determination that the public interest would be served by rejecting

3-17  any bids received in response to an advertisement for bids, it shall

3-18  prepare and make available for public inspection a written statement

3-19  containing:

3-20      (a) A list of all persons, including supervisors, whom the State

3-21  or the local government intends to assign to the project, together

3-22  with their classifications and an estimate of the direct and indirect

3-23  costs of their labor;

3-24      (b) A list of all equipment that the State or the local government

3-25  intends to use on the project, together with an estimate of the

3-26  number of hours each item of equipment will be used and the hourly

3-27  cost to use each item of equipment;

3-28      (c) An estimate of the cost of administrative support for the

3-29  persons assigned to the project;

3-30      (d) An estimate of the total cost of the project; and

3-31      (e) An estimate of the amount of money the State or the local

3-32  government expects to save by rejecting the bids and performing the

3-33  project itself.

3-34      [7.] 8. This section does not apply to:

3-35      (a) Any utility subject to the provisions of chapter 318 or 710 of

3-36  NRS;

3-37      (b) Any work of construction, reconstruction, improvement and

3-38  maintenance of highways subject to NRS 408.323 or 408.327;

3-39      (c) Normal maintenance of the property of a school district;

3-40      (d) The Las Vegas Valley Water District created pursuant to

3-41  chapter 167, Statutes of Nevada 1947, the Moapa Valley Water

3-42  District created pursuant to chapter 477, Statutes of Nevada 1983 or

3-43  the Virgin Valley Water District created pursuant to chapter 100,

3-44  Statutes of Nevada 1993; or

4-1  (e) The design and construction of a public work for which a

4-2  public body contracts with a design-build team pursuant to NRS

4-3  338.1711 to 338.1727.

4-4  Sec. 5.  NRS 338.1385 is hereby amended to read as follows:

4-5  338.1385  1.  Except as otherwise provided in subsection [8,]

4-6  9, this state, or a local government that awards a contract for the

4-7  construction, alteration or repair of a public work in accordance with

4-8  paragraph (a) of subsection 1 of NRS 338.1373, or a public officer,

4-9  public employee or other person responsible for awarding a contract

4-10  for the construction, alteration or repair of a public work who

4-11  represents the State or the local government, shall not:

4-12      (a) Commence such a project for which the estimated cost

4-13  exceeds $100,000 unless it advertises in a newspaper of general

4-14  circulation in this state for bids for the project; or

4-15      (b) Divide such a project into separate portions to avoid the

4-16  requirements of paragraph (a).

4-17      2.  Except as otherwise provided in subsection [8,] 9, a public

4-18  body that maintains a list of properly licensed contractors who are

4-19  interested in receiving offers to bid on public works projects for

4-20  which the estimated cost is more than $25,000 but less than

4-21  $100,000 shall solicit bids from not more than three of the

4-22  contractors on the list for a contract of that value for the

4-23  construction, alteration or repair of a public work. The public body

4-24  shall select contractors from the list in such a manner as to afford

4-25  each contractor an equal opportunity to bid on a public works

4-26  project. A properly licensed contractor must submit a written

4-27  request annually to the public body to remain on the list. Offers for

4-28  bids which are made pursuant to this subsection must be sent by

4-29  certified mail.

4-30      3.  Each advertisement for bids must include a provision that

4-31  sets forth:

4-32      (a) The requirement that a contractor must be qualified pursuant

4-33  to NRS 338.1379 to bid on the contract or must be exempt from

4-34  meeting such qualifications pursuant to NRS 338.1383; and

4-35      (b) The period during which an application to qualify as a bidder

4-36  on the contract must be submitted.

4-37      4.  Approved plans and specifications for the bids must be on

4-38  file at a place and time stated in the advertisement for the inspection

4-39  of all persons desiring to bid thereon and for other interested

4-40  persons. Contracts for the project must be awarded on the basis of

4-41  bids received.

4-42      5.  Except as otherwise provided in subsection 6 and NRS

4-43  338.1389, a public body shall award a contract to the lowest

4-44  responsive and responsible bidder.

5-1  6.  Any bids received in response to an advertisement for bids

5-2  may be rejected if the [person responsible for awarding the contract]

5-3  public body or its authorized representative determines that:

5-4  (a) The bidder is not a qualified bidder pursuant to NRS

5-5  338.1379, unless the bidder is exempt from meeting such

5-6  qualifications pursuant to NRS 338.1383;

5-7  (b) The bidder is not responsive[;] or responsible;

5-8  (c) The quality of the services, materials, equipment or labor

5-9  offered does not conform to the approved plan or specifications; or

5-10      (d) The public interest would be served by such a rejection.

5-11      [6.] 7.  Before the State or a local government may commence

5-12  a project subject to the provisions of this section, based upon a

5-13  determination that the public interest would be served by rejecting

5-14  any bids received in response to an advertisement for bids, it shall

5-15  prepare and make available for public inspection a written statement

5-16  containing:

5-17      (a) A list of all persons, including supervisors, whom the State

5-18  or the local government intends to assign to the project, together

5-19  with their classifications and an estimate of the direct and indirect

5-20  costs of their labor;

5-21      (b) A list of all equipment that the State or the local government

5-22  intends to use on the project, together with an estimate of the

5-23  number of hours each item of equipment will be used and the hourly

5-24  cost to use each item of equipment;

5-25      (c) An estimate of the cost of administrative support for the

5-26  persons assigned to the project;

5-27      (d) An estimate of the total cost of the project; and

5-28      (e) An estimate of the amount of money the State or the local

5-29  government expects to save by rejecting the bids and performing the

5-30  project itself.

5-31      [7.] 8.  In preparing the estimated cost of a project pursuant to

5-32  subsection [6,] 7, the State or a local government must include the

5-33  fair market value of, or, if known, the actual cost of, all materials,

5-34  supplies, labor and equipment to be used for the project.

5-35      [8.] 9.  This section does not apply to:

5-36      (a) Any utility subject to the provisions of chapter 318 or 710 of

5-37  NRS;

5-38      (b) Any work of construction, reconstruction, improvement and

5-39  maintenance of highways subject to NRS 408.323 or 408.327;

5-40      (c) Normal maintenance of the property of a school district; or

5-41      (d) The Las Vegas Valley Water District created pursuant to

5-42  chapter 167, Statutes of Nevada 1947, the Moapa Valley Water

5-43  District created pursuant to chapter 477, Statutes of Nevada 1983 or

5-44  the Virgin Valley Water District created pursuant to chapter 100,

5-45  Statutes of Nevada 1993; or

6-1  (e) The design and construction of a public work for which a

6-2  public body contracts with a design-build team pursuant to NRS

6-3  338.1711 to 338.1727, inclusive.

6-4  Sec. 6.  NRS 338.1389 is hereby amended to read as follows:

6-5  338.1389  1.  Except as otherwise provided in NRS 338.1385

6-6  and 338.1711 to 338.1727, inclusive, a public body shall award a

6-7  contract for a public work to the contractor who submits the best

6-8  bid.

6-9  2.  Except as otherwise provided in subsection 10 or limited by

6-10  subsection 11, [for the purposes of this section, a contractor who:

6-11      (a) Has] a bid that is submitted by a contractor who has been

6-12  determined by the public body to be a qualified bidder pursuant to

6-13  NRS 338.1379 or is exempt from meeting such requirements

6-14  pursuant to NRS 338.1373 or 338.1383[; and

6-15      (b) At the time he submits his bid, provides to the public body a]

6-16  and that is:

6-17      (a) Accompanied by:

6-18          (1) A copy of a valid certificate of eligibility to receive a

6-19  preference in bidding on public works issued to him by the State

6-20  Contractors’ Board pursuant to subsection 3 or 4[,] ; or

6-21          (2) Indicia of qualification to receive a 30 percent

6-22  preference in bidding on public works issued to him by the State

6-23  Contractors’ Board pursuant to section 3 of this act; and

6-24      (b) Not more than:

6-25          (1) Five percent higher than the bid submitted by the next

6-26  lowest responsive and responsible bidder whose bid is not

6-27  accompanied by a copy of a valid certificate of eligibility to receive

6-28  a preference in bidding on public works issued to him by the State

6-29  Contractors’ Board pursuant to subsection 3 or 4; or

6-30          (2) Thirty percent higher than the bid submitted by the next

6-31  lowest responsive and responsible bidder whose bid is not

6-32  accompanied by indicia of qualification in bidding on public

6-33  works issued to him by the State Contractors’ Board pursuant to

6-34  section 3 of this act,

6-35  shall be deemed to [have submitted a better bid than a competing

6-36  contractor who has not provided a copy of such a valid certificate of

6-37  eligibility if the amount of his bid is not more than 5 percent higher

6-38  than the amount bid by the competing contractor.] be the best bid

6-39  for the purposes of this section.

6-40      3.  The State Contractors’ Board shall issue a certificate of

6-41  eligibility to receive a preference in bidding on public works to a

6-42  general contractor who is licensed pursuant to the provisions of

6-43  chapter 624 of NRS and submits to the Board an affidavit from a

6-44  certified public accountant setting forth that the general contractor

6-45  has, while licensed as a general contractor in this state:

7-1  (a) Paid directly, on his own behalf:

7-2       (1) The sales and use taxes imposed pursuant to chapters

7-3  372, 374 and 377 of NRS on materials used for construction in this

7-4  state, including, without limitation, construction that is undertaken

7-5  or carried out on land within the boundaries of this state that is

7-6  managed by the Federal Government or is on an Indian reservation

7-7  or Indian colony, of not less than $5,000 for each consecutive 12-

7-8  month period for 60 months immediately preceding the submission

7-9  of the affidavit from the certified public accountant;

7-10          (2) The governmental services tax imposed pursuant to

7-11  chapter 371 of NRS on the vehicles used in the operation of his

7-12  business in this state of not less than $5,000 for each consecutive

7-13  12-month period for 60 months immediately preceding the

7-14  submission of the affidavit from the certified public accountant; or

7-15          (3) Any combination of such sales and use taxes and

7-16  governmental services tax; or

7-17      (b) Acquired, by purchase, inheritance, gift or transfer through a

7-18  stock option plan, all the assets and liabilities of a viable, operating

7-19  construction firm that possesses a:

7-20          (1) License as a general contractor pursuant to the provisions

7-21  of chapter 624 of NRS; and

7-22          (2) Certificate of eligibility to receive a preference in bidding

7-23  on public works.

7-24      4.  The State Contractors’ Board shall issue a certificate of

7-25  eligibility to receive a preference in bidding on public works to a

7-26  specialty contractor who is licensed pursuant to the provisions of

7-27  chapter 624 of NRS and submits to the Board an affidavit from a

7-28  certified public accountant setting forth that the specialty contractor

7-29  has, while licensed as a specialty contractor in this state:

7-30      (a) Paid directly, on his own behalf:

7-31          (1) The sales and use taxes pursuant to chapters 372, 374 and

7-32  377 of NRS on materials used for construction in this state,

7-33  including, without limitation, construction that is undertaken or

7-34  carried out on land within the boundaries of this state that is

7-35  managed by the Federal Government or is on an Indian reservation

7-36  or Indian colony, of not less than $5,000 for each consecutive 12-

7-37  month period for 60 months immediately preceding the submission

7-38  of the affidavit from the certified public accountant;

7-39          (2) The governmental services tax imposed pursuant to

7-40  chapter 371 of NRS on the vehicles used in the operation of his

7-41  business in this state of not less than $5,000 for each consecutive

7-42  12-month period for 60 months immediately preceding the

7-43  submission of the affidavit from the certified public accountant; or

7-44          (3) Any combination of such sales and use taxes and

7-45  governmental services tax; or

8-1  (b) Acquired, by purchase, inheritance, gift or transfer through a

8-2  stock option plan, all the assets and liabilities of a viable, operating

8-3  construction firm that possesses a:

8-4       (1) License as a specialty contractor pursuant to the

8-5  provisions of chapter 624 of NRS; and

8-6       (2) Certificate of eligibility to receive a preference in bidding

8-7  on public works.

8-8  5.  For the purposes of complying with the requirements set

8-9  forth in paragraph (a) of subsection 3 and paragraph (a) of

8-10  subsection 4, a contractor shall be deemed to have paid:

8-11      (a) Sales and use taxes and governmental services taxes that

8-12  were paid in this state by an affiliate or parent company of the

8-13  contractor, if the affiliate or parent company is also a general

8-14  contractor or specialty contractor, as applicable; and

8-15      (b) Sales and use taxes that were paid in this state by a joint

8-16  venture in which the contractor is a participant, in proportion to the

8-17  amount of interest the contractor has in the joint venture.

8-18      6.  A contractor who has received a certificate of eligibility to

8-19  receive a preference in bidding on public works from the State

8-20  Contractors’ Board pursuant to subsection 3 or 4 shall, at the time

8-21  for the annual renewal of his contractor’s license pursuant to NRS

8-22  624.283, submit to the Board an affidavit from a certified public

8-23  accountant setting forth that the contractor has, during the

8-24  immediately preceding 12 months, paid the taxes required pursuant

8-25  to paragraph (a) of subsection 3 or paragraph (a) of subsection 4, as

8-26  applicable, to maintain his eligibility to hold such a certificate.

8-27      7.  A contractor who fails to submit an affidavit to the Board

8-28  pursuant to subsection 6 ceases to be eligible to receive a preference

8-29  in bidding on public works unless he reapplies for and receives a

8-30  certificate of eligibility pursuant to subsection 3 or 4, as applicable.

8-31      8.  If a contractor holds more than one contractor’s license, he

8-32  must submit a separate application for each license pursuant to

8-33  which he wishes to qualify for a preference in bidding. Upon

8-34  issuance, the certificate of eligibility to receive a preference in

8-35  bidding on public works becomes part of the contractor’s license for

8-36  which the contractor submitted the application.

8-37      9.  If a contractor who applies to the State Contractors’ Board

8-38  for a certificate of eligibility to receive a preference in bidding on

8-39  public works submits false information to the Board regarding the

8-40  required payment of taxes, the contractor is not eligible to receive a

8-41  preference in bidding on public works for a period of 5 years after

8-42  the date on which the Board becomes aware of the submission of the

8-43  false information.

8-44      10.  If any federal statute or regulation precludes the granting of

8-45  federal assistance or reduces the amount of that assistance for a

9-1  particular public work because of the provisions of subsection 2,

9-2  those provisions do not apply insofar as their application would

9-3  preclude or reduce federal assistance for that work. The provisions

9-4  of subsection 2 do not apply to any contract for a public work which

9-5  is expected to cost less than $250,000.

9-6  11.  If a bid is submitted by two or more contractors as a joint

9-7  venture or by one of them as a joint venturer, the provisions of

9-8  subsection 2 apply only if both or all of the joint venturers

9-9  separately meet the requirements of that subsection.

9-10      12.  The State Contractors’ Board shall adopt regulations and

9-11  may assess reasonable fees relating to the certification of contractors

9-12  for a preference in bidding on public works.

9-13      13.  A person or entity who believes that a contractor

9-14  wrongfully holds a certificate of eligibility to receive a preference in

9-15  bidding on public works may challenge the validity of the certificate

9-16  by filing a written objection with the public body to which the

9-17  contractor has submitted a bid or proposal on a contract for the

9-18  construction of a public work. A written objection authorized

9-19  pursuant to this subsection must:

9-20      (a) Set forth proof or substantiating evidence to support the

9-21  belief of the person or entity that the contractor wrongfully holds a

9-22  certificate of eligibility to receive a preference in bidding on public

9-23  works; and

9-24      (b) Be filed with the public body at or after the time at which the

9-25  contractor submitted the bid or proposal to the public body and

9-26  before the time at which the public body awards the contract for

9-27  which the bid or proposal was submitted.

9-28      14.  If a public body receives a written objection pursuant to

9-29  subsection 13, the public body shall determine whether the objection

9-30  is accompanied by the proof or substantiating evidence required

9-31  pursuant to paragraph (a) of that subsection. If the public body

9-32  determines that the objection is not accompanied by the required

9-33  proof or substantiating evidence, the public body shall dismiss the

9-34  objection and may proceed immediately to award the contract. If the

9-35  public body determines that the objection is accompanied by the

9-36  required proof or substantiating evidence, the public body shall

9-37  determine whether the contractor qualifies for the certificate

9-38  pursuant to the provisions of this section and may proceed to award

9-39  the contract accordingly.

9-40      Sec. 7.  NRS 338.140 is hereby amended to read as follows:

9-41      338.140  1.  An agency of this state, a political subdivision,

9-42  municipal corporation or district, a public officer or a person

9-43  charged with the letting of contracts for the construction, alteration

9-44  or repair of public works shall not draft or cause to be drafted

10-1  specifications for bids, in connection with the construction,

10-2  alteration or repair of public works:

10-3      (a) In such a manner as to limit the bidding, directly or

10-4  indirectly, to any one specific concern.

10-5      (b) Except in those instances where the product is designated to

10-6  match others in use on a particular public improvement either

10-7  completed or in the course of completion, calling for a designated

10-8  material, product, thing or service by specific brand or trade name

10-9  unless the specification lists at least two brands or trade names of

10-10  comparable quality or utility and is followed by the words “or

10-11  equal” so that bidders may furnish any equal material, product, thing

10-12  or service.

10-13     (c) In such a manner as to hold the bidder to whom such

10-14  contract is awarded responsible for extra costs incurred as a result of

10-15  errors or omissions by the public agency in the contract documents.

10-16     (d) In such a manner as to require a bidder to furnish to the

10-17  public agency, whether before or after the bid is submitted,

10-18  documents generated in the preparation or determination of prices

10-19  included in the bid, except when requested by the public agency for:

10-20         (1) A determination of the price of additional work

10-21  performed pursuant to a change order;

10-22         (2) An evaluation of claims for costs incurred for the

10-23  performance of additional work;

10-24         (3) Preparation for arbitration or litigation; or

10-25         (4) Any combination thereof.

10-26  A document furnished to a public agency pursuant to this paragraph

10-27  is confidential and must be returned to the bidder.

10-28     2.  In addition to the requirements of subsection 1, with

10-29  respect to any specification for bids drafted or caused to be drafted

10-30  by an agency of this state, a political subdivision, municipal

10-31  corporation or district, a public officer or a person charged with

10-32  the letting of contracts for the construction, alteration or repair of

10-33  public works, if the estimated cost of the applicable public works

10-34  project is more than $500,000, the State Public Works Board shall

10-35  ensure that the specification for bids:

10-36     (a) Is not drafted or caused to be drafted until there has been

10-37  comprehensive communication regarding the contents of the

10-38  specification for bids between the Board and the governmental

10-39  entity, officer or person who will draft that specification for bids;

10-40     (b) Is developed in consultation and cooperation with

10-41  recognized experts in the particular area of public works to which

10-42  the specification for bids pertains;

10-43     (c) Is developed in accordance with guidelines developed by

10-44  the recognized experts described in paragraph (b), which

10-45  guidelines must specify how much the applicable public works

11-1  project should cost, based upon comparisons with similar public

11-2  works projects carried out by other governmental entities; and

11-3      (d) To substantiate the amounts that are bid, requires bidders

11-4  to set forth the various hourly rates that will be paid to the

11-5  workmen who will perform work on the applicable public works

11-6  project.

11-7      3.  In those cases involving a unique or novel product

11-8  application required to be used in the public interest, or where only

11-9  one brand or trade name is known to the specifying agency, it may

11-10  list only one.

11-11     [3.] 4. Specifications must provide a period of time of at least 7

11-12  days after award of the contract for submission of data

11-13  substantiating a request for a substitution of “an equal” item.

11-14     Sec. 8.  Chapter 341 of NRS is hereby amended by adding

11-15  thereto a new section to read as follows:

11-16     The Board shall appoint an official to coordinate and oversee

11-17  all public works projects for which the estimated cost is more than

11-18  $500,000.

11-19     Sec. 9.  Chapter 333 of NRS is hereby amended by adding

11-20  thereto a new section to read as follows:

11-21     The Chief shall not authorize a change order for a contract,

11-22  the estimated value of which exceeds $500,000.

11-23     Sec. 10.  NRS 333.100 is hereby amended to read as follows:

11-24     333.100  1.  The Chief shall have such technical and clerical

11-25  assistance as the execution of his duties requires.

11-26     2.  Technical assistants shall have a minimum of 6 years of

11-27  practical experience in purchasing, merchandising, stock control and

11-28  methods of inventory management.

11-29     3.  The Chief shall assign one of his technical assistants to

11-30  coordinate and oversee the awarding of contracts, the estimated

11-31  value of which exceeds $500,000.

11-32     Sec. 11.  NRS 333.311 is hereby amended to read as follows:

11-33     333.311  1.  Each request for proposals must include minimum

11-34  requirements that the successful bidder must meet for the awarding

11-35  of a contract pursuant to the provisions of this chapter. A contract

11-36  may not be awarded to a bidder who does not comply with the

11-37  requirements set forth in the request for proposals.

11-38     2.  The Chief may request assistance in preparing a request

11-39  for proposals for a contract, the estimated value of which exceeds

11-40  $500,000, from a person who possesses expert knowledge or

11-41  special expertise related to the subject of the request for proposals.

11-42     Sec. 12.  NRS 333.335 is hereby amended to read as follows:

11-43     333.335  1.  Each proposal must be evaluated by:

11-44     (a) The chief of the using agency, or a committee appointed by

11-45  the chief of the using agency in accordance with the regulations

12-1  adopted pursuant to NRS 333.135, if the proposal is for a using

12-2  agency; or

12-3      (b) The Chief of the Purchasing Division, or a committee

12-4  appointed by the Chief in accordance with the regulations adopted

12-5  pursuant to NRS 333.135, if he is responsible for administering the

12-6  proposal.

12-7      2.  A committee appointed pursuant to subsection 1 must

12-8  consist of not less than two members. A majority of the members of

12-9  the committee must be state officers or employees. The committee

12-10  may include persons who are not state officers or employees and

12-11  possess expert knowledge or special expertise that the chief of the

12-12  using agency or the Chief of the Purchasing Division determines is

12-13  necessary to evaluate a proposal. The members of the committee are

12-14  not entitled to compensation for their service on the committee,

12-15  except that members of the committee who are state officers or

12-16  employees are entitled to receive their salaries as state officers and

12-17  employees. No member of the committee may have a financial

12-18  interest in a proposal.

12-19     3.  In making an award, the chief of the using agency, the Chief

12-20  of the Purchasing Division or each member of the committee, if a

12-21  committee is established, shall consider and assign a score for each

12-22  of the following factors for determining whether the proposal is in

12-23  the best interests of the State of Nevada:

12-24     (a) The experience and financial stability of the person

12-25  submitting a proposal;

12-26     (b) Whether the proposal complies with the requirements of the

12-27  request for proposals as prescribed in NRS 333.311;

12-28     (c) The price of the proposal; [and]

12-29     (d) For a contract the estimated value of which exceeds

12-30  $500,000, the performance history of the person submitting the

12-31  proposal:

12-32         (1) On the previous five contracts awarded to that person by

12-33  the Purchasing Division; or

12-34         (2) During the immediately preceding 3 years on contracts

12-35  awarded to that person by the Purchasing Division; and

12-36     (e) Any other factor disclosed in the request for proposals.

12-37     4.  The chief of the using agency, the Chief of the Purchasing

12-38  Division or the committee, if a committee is established, shall

12-39  determine the relative weight of each factor set forth in subsection 3

12-40  before a request for proposals is advertised. The weight of each

12-41  factor must not be disclosed before the date proposals are required

12-42  to be submitted.

12-43     5.  In evaluating the total scores assigned pursuant to

12-44  subsection 3 to a local bidder and a competing bidder a contract,

12-45  the estimated value of which exceeds $500,000, a proposal

13-1  submitted by a local bidder shall be deemed to be in the best

13-2  interest of the State if the total score of the competing bidder is not

13-3  5 percent better than the local bidder. As used in this subsection:

13-4      (a) “Competing bidder” means a person who submits a

13-5  proposal other than a local bidder.

13-6      (b) “Local bidder” means a person who submits with his

13-7  proposal an affidavit from a certified public accountant setting

13-8  forth that the person submitting the proposal has paid taxes

13-9  imposed by this state or a political subdivision of this state during

13-10  the 2 years immediately preceding the submitting of the proposal.

13-11     6.  In evaluating a proposal by a bidder on a contract, the

13-12  estimated value of which exceeds $500,000, the committee shall

13-13  give such weight to the factor set forth in paragraph (d) of

13-14  subsection 3 as to allow the proposal submitted by the bidder to be

13-15  deemed to be in the best interest of the State if the total score of

13-16  the bidder is not more than 30 percent higher than the next

13-17  highest bidder.

13-18     7.  The chief of the using agency, the Chief of the Purchasing

13-19  Division or the committee, if a committee is established, shall award

13-20  the contract based on the best interests of the State, as determined by

13-21  the total scores assigned pursuant to subsection 3[,] and in

13-22  compliance with subsection 5 or 6, and is not required to accept the

13-23  lowest-priced proposal.

13-24     [6.] 8.   Each proposal evaluated pursuant to the provisions of

13-25  this section is confidential and may not be disclosed until the

13-26  contract is awarded.

13-27     Sec. 13.  NRS 333.340 is hereby amended to read as follows:

13-28     333.340  1.  [Every] Except as otherwise provided in NRS

13-29  333.335, every contract or order for goods must be awarded to the

13-30  lowest responsible bidder. To determine the lowest responsible

13-31  bidder, the Chief may consider:

13-32     (a) The location of the using agency to be supplied.

13-33     (b) The qualities of the articles to be supplied.

13-34     (c) The total cost of ownership of the articles to be supplied.

13-35     (d) Except as otherwise provided in paragraph (e), the

13-36  conformity of the articles to be supplied with the specifications.

13-37     (e) If the articles are an alternative to the articles listed in the

13-38  original request for bids, whether the advertisement for bids

13-39  included a statement that bids for an alternative article will be

13-40  considered if:

13-41         (1) The specifications of the alternative article meet or

13-42  exceed the specifications of the article listed in the original request

13-43  for bids;

13-44         (2) The purchase of the alternative article results in a lower

13-45  price; and

14-1          (3) The Chief deems the purchase of the alternative article to

14-2  be in the best interests of the State of Nevada.

14-3      (f) The purposes for which the articles to be supplied are

14-4  required.

14-5      (g) The dates of delivery of the articles to be supplied.

14-6      2.  If a contract or an order is not awarded to the lowest bidder,

14-7  the Chief shall provide the lowest bidder with a written statement

14-8  which sets forth the specific reasons that the contract or order was

14-9  not awarded to him.

14-10     3.  As used in this section, “total cost of ownership” includes,

14-11  but is not limited to:

14-12     (a) The history of maintenance or repair of the articles;

14-13     (b) The cost of routine maintenance and repair of the articles;

14-14     (c) Any warranties provided in connection with the articles;

14-15     (d) The cost of replacement parts for the articles; and

14-16     (e) The value of the articles as used articles when given in trade

14-17  on a subsequent purchase.

14-18     Sec. 14.  NRS 333.370 is hereby amended to read as follows:

14-19     333.370  1.  A person who makes an unsuccessful bid or

14-20  proposal may file a notice of appeal with the Purchasing Division

14-21  [and with the Hearings Division of the Department of

14-22  Administration] within 10 days after:

14-23     (a) The date of award as entered on the bid record; and

14-24     (b) The notice of award has been posted in at least three public

14-25  buildings, including the location of the using agency.

14-26  The notice of appeal must include a written statement of the issues

14-27  to be addressed on appeal.

14-28     2.  A person filing a notice of appeal must post a bond with

14-29  good and solvent surety authorized to do business in this state or

14-30  submit other security, in a form approved by the Chief by

14-31  regulation, to the Purchasing Division, who shall hold the bond or

14-32  other security until a determination is made on the appeal. Except as

14-33  otherwise provided in subsection 3, a bond posted or other security

14-34  submitted with a notice of appeal must be in an amount equal to 25

14-35  percent of the total value of the successful bid submitted.

14-36     3.  If the total value of the successful bid cannot be determined

14-37  because the total requirements for the contract are estimated as of

14-38  the date of award, a bond posted or other security submitted with a

14-39  notice of appeal must be in an amount equal to 25 percent of the

14-40  estimated total value of the contract. Upon request, the Chief shall

14-41  provide:

14-42     (a) The estimated total value of the contract; or

14-43     (b) The method for determining the estimated total value of the

14-44  contract,

15-1  based on records of past experience and estimates of anticipated

15-2  requirements furnished by the using agency.

15-3      4.  Within 20 days after receipt of the notice of appeal, a

15-4  [hearing officer of the Hearings Division of the Department of

15-5  Administration] panel consisting of a member of the State Board

15-6  of Examiners, a member of the committee appointed pursuant to

15-7  NRS 333.335 that evaluated the proposals for the contract and a

15-8  person who possesses expert knowledge or special expertise that

15-9  was a member of that committee, if any, shall hold a [contested]

15-10  hearing on the appeal . [in substantial compliance with the

15-11  provisions of NRS 233B.121 to 233B.1235, inclusive, 233B.125

15-12  and 233B.126.] The successful bidder must be given notice of the

15-13  hearing in the same manner as the person who filed the notice of

15-14  appeal. The successful bidder may participate in the hearing.

15-15     5.  The [hearing officer] panel may cancel the award for lack of

15-16  compliance with the provisions of this chapter. A cancellation of the

15-17  award requires readvertising for bids and a new award in accordance

15-18  with the provisions of this chapter.

15-19     6.  A notice of appeal filed in accordance with the provisions of

15-20  this section operates as a stay of action in relation to any contract

15-21  until a determination is made by the [hearing officer] panel on the

15-22  appeal.

15-23     7.  A person who makes an unsuccessful bid or proposal may

15-24  not seek any type of judicial intervention until the [hearing officer]

15-25  panel has made a determination on the appeal.

15-26     8.  The Chief may make as many open market purchases of the

15-27  commodities or services as are urgently needed to meet the

15-28  requirements of the Purchasing Division or the using agency until a

15-29  determination is made on the appeal. With the approval of the Chief,

15-30  the using agency may make such purchases for the agency.

15-31     9.  Neither the State of Nevada, nor any agency, contractor,

15-32  department, division, employee or officer of the State is liable for

15-33  any costs, expenses, attorney’s fees, loss of income or other

15-34  damages sustained by a person who makes an unsuccessful bid or

15-35  proposal, whether or not the person files a notice of appeal pursuant

15-36  to this section.

15-37     10.  If the appeal is upheld and the award is cancelled, the bond

15-38  posted or other security submitted with the notice of appeal must be

15-39  returned to the person who posted the bond or submitted the

15-40  security. If the appeal is rejected and the award is upheld, a claim

15-41  may be made against the bond or other security by the Purchasing

15-42  Division and the using agency to the [Hearings Division of the

15-43  Department of Administration] panel in an amount equal to the

15-44  expenses incurred and other monetary losses suffered by

15-45  the Purchasing Division and the using agency because of the

16-1  unsuccessful appeal. The [hearing officer] panel shall hold a hearing

16-2  on the claim in the same manner as prescribed in subsection 4. Any

16-3  money not awarded by the [hearing officer] panel must be returned

16-4  to the person who posted the bond or submitted the security.

16-5      Sec. 15.  1.  This section and sections 1 to 4, inclusive, and 6

16-6  to 14, inclusive, of this act become effective on October 1, 2003.

16-7      2.  Section 4 of this act expires by limitation on April 30, 2013.

16-8      3.  Section 5 of this act becomes effective on May 1, 2013.

 

16-9  H