Senate Bill No. 491–Committee on Government Affairs

 

(On Behalf of the Public Works Board)

 

March 24, 2003

____________

 

Referred to Committee on Government Affairs

 

SUMMARY—Makes various changes regarding bidding on contracts for public works of this state. (BDR 28‑487)

 

FISCAL NOTE:  Effect on Local Government: No.

                           Effect on the State: No.

 

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

 

AN ACT relating to public works; requiring certain subcontractors to become qualified to be subcontractors on contracts for public works; revising the criteria that the State Public Works Board is required to adopt for the qualification of bidders on contracts for public works; authorizing the Board and the governing body of a local government to issue subpoenas relating to hearings on denials of applications for qualification to bid on or be subcontractors on contracts for public works; specifying the burden of proof in such hearings; revising the provisions governing the awarding of design-build contracts; 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. NRS 338.1375 is hereby amended to read as

1-2  follows:

1-3  338.1375  1.  The State Public Works Board shall not accept a

1-4  bid on a contract for a public work unless the person who submits

1-5  the bid [has] and each subcontractor who will provide labor or a

1-6  portion of the work or improvement to the contractor for which

2-1  the subcontractor will be paid an amount exceeding 5 percent of

2-2  the prime contractor’s total bid are qualified pursuant to NRS

2-3  338.1379 to bid on or be a subcontractor on that contract.

2-4  2.  The State Public Works Board shall by regulation adopt

2-5  criteria for the qualification of bidders and subcontractors on

2-6  contracts for public works of this state. The criteria adopted by the

2-7  State Public Works Board pursuant to this section must be used by

2-8  the State Public Works Board to determine the qualification of

2-9  bidders and subcontractors on contracts for public works of this

2-10  state.

2-11      3.  The criteria adopted by the State Public Works Board

2-12  pursuant to this section:

2-13      (a) Must be adopted in such a form that the determination of

2-14  whether an applicant is qualified to bid on or be a subcontractor on

2-15  a contract for a public work does not require or allow the exercise of

2-16  discretion by any one person.

2-17      (b) May include [only:] , but is not limited to:

2-18          (1) The financial ability of the applicant to perform a

2-19  contract[;] or subcontract, as applicable;

2-20          (2) The principal personnel of the applicant;

2-21          (3) Whether the applicant has breached any contracts or

2-22  subcontracts, as applicable, with a public agency or person in this

2-23  state or any other state;

2-24          (4) [Whether] If the applicant is a prime contractor,

2-25  whether the applicant has been disqualified from being awarded a

2-26  contract pursuant to NRS 338.017 or 338.1387; [and]

2-27          (5) The performance history of the applicant concerning any

2-28  other recent, similar contracts[, if any,] or subcontracts, as

2-29  applicable, completed by the applicant[.] ; and

2-30          (6) The truthfulness and completeness of the application.

2-31      Sec. 2.  NRS 338.1379 is hereby amended to read as follows:

2-32      338.1379  1.  Except as otherwise provided in NRS 338.1383,

2-33  a person who wishes to qualify as [a] :

2-34      (a) A bidder on a contract for a public work must submit an

2-35  application to the State Public Works Board or the governing body.

2-36      (b) A subcontractor on a contract for a public work of this

2-37  state must submit an application to the State Public Works Board.

2-38      2.  Upon receipt of an application pursuant to subsection 1, the

2-39  State Public Works Board or the governing body shall:

2-40      (a) Investigate the applicant to determine whether he is qualified

2-41  to bid on or be a subcontractor, as applicable, on a contract; and

2-42      (b) After conducting the investigation, determine whether the

2-43  applicant is qualified to bid on or be a subcontractor, as applicable,

2-44  on such a contract. The determination must be made within [30] 45

2-45  days after receipt of the application.

3-1  3.  The State Public Works Board or the governing body shall

3-2  notify each applicant in writing of its determination. If an

3-3  application is denied, the notice must set forth the reasons for the

3-4  denial and inform the applicant of his right to a hearing pursuant to

3-5  NRS 338.1381.

3-6  4.  The State Public Works Board or the governing body of a

3-7  local government may determine an applicant is qualified to bid[:]

3-8  or be a subcontractor, as applicable:

3-9  (a) On a specific project;

3-10      (b) On more than one project over a period of 12 months; or

3-11      (c) On more than one project over a period of 24 months.

3-12      5.  The State Public Works Board shall not use any criteria

3-13  other than criteria adopted by regulation pursuant to NRS 338.1375

3-14  in determining whether to approve or deny an application.

3-15      6.  The governing body of a local government shall not use any

3-16  criteria other than the criteria described in NRS 338.1377 in

3-17  determining whether to approve or deny an application.

3-18      7.  Financial information and other data pertaining to the net

3-19  worth of an applicant which is gathered by or provided to the State

3-20  Public Works Board or a governing body to determine the financial

3-21  ability of an applicant to perform a contract or be a subcontractor

3-22  on a contract, as applicable, is confidential and not open to public

3-23  inspection.

3-24      Sec. 3.  NRS 338.1381 is hereby amended to read as follows:

3-25      338.1381  1.  If, within 10 days after receipt of the notice

3-26  denying his application, the applicant files a written request for a

3-27  hearing with the State Public Works Board or the governing body of

3-28  the local government, the Board or governing body shall set the

3-29  matter for a hearing within [10] 20 days after receipt of the request.

3-30  The hearing must be held not later than [20] 45 days after the receipt

3-31  of the request for a hearing[.] unless the parties, by written

3-32  stipulation, agree to extend the time.

3-33      2.  The hearing must be held at a time and place prescribed by

3-34  the Board or governing body. At least 10 days before the date set for

3-35  the hearing, the Board or governing body shall serve the applicant

3-36  with written notice of the hearing. The notice may be served by

3-37  personal delivery to the applicant or by certified mail to the last

3-38  known business or residential address of the applicant.

3-39      3.  The applicant has the burden at the hearing of proving by

3-40  substantial evidence that the applicant is entitled to be qualified to

3-41  bid on or be a subcontractor on, as applicable, a contract for a

3-42  public work.

3-43      4.  In conducting a hearing pursuant to this subsection, the

3-44  Board or the governing body of a local government may:

3-45      (a) Administer oaths;

4-1  (b) Take testimony;

4-2  (c) Issue subpoenas to compel the attendance of witnesses to

4-3  testify before the Board or governing body;

4-4  (d) Require the production of related books, papers and

4-5  documents; and

4-6  (e) Issue commissions to take testimony.

4-7  5.  If a witness refuses to attend or testify or produce books,

4-8  papers or documents as required by the subpoena issued pursuant

4-9  to subsection 4, the Board or governing body may petition the

4-10  district court to order the witness to appear or testify or produce

4-11  the requested books, papers or documents.

4-12      6.  The Board or governing body shall issue a decision on the

4-13  matter within 5 days after the hearing and notify the applicant, in

4-14  writing, of its decision within [5] 15 days after it is issued. The

4-15  decision of the Board or governing body is a final decision for

4-16  purposes of judicial review.

4-17      Sec. 4.  NRS 338.1385 is hereby amended to read as follows:

4-18      338.1385  1.  Except as otherwise provided in subsection 7

4-19  and NRS 338.1906 and 338.1907, this state, or a local government

4-20  that awards a contract for the construction, alteration or repair of a

4-21  public work in accordance with paragraph (a) of subsection 1 of

4-22  NRS 338.1373, or a public officer, public employee or other person

4-23  responsible for awarding a contract for the construction, alteration

4-24  or repair of a public work who represents the State or the local

4-25  government, shall not:

4-26      (a) Commence such a project for which the estimated cost

4-27  exceeds $100,000 unless it advertises in a newspaper of general

4-28  circulation in this state for bids for the project; or

4-29      (b) Divide such a project into separate portions to avoid the

4-30  requirements of paragraph (a).

4-31      2.  Except as otherwise provided in subsection 7, a public body

4-32  that maintains a list of properly licensed contractors who are

4-33  interested in receiving offers to bid on public works projects for

4-34  which the estimated cost is more than $25,000 but less than

4-35  $100,000 shall solicit bids from not more than three of the

4-36  contractors on the list for a contract of that value for the

4-37  construction, alteration or repair of a public work. The public body

4-38  shall select contractors from the list in such a manner as to afford

4-39  each contractor an equal opportunity to bid on a public works

4-40  project. A properly licensed contractor must submit a written

4-41  request annually to the public body to remain on the list. Offers for

4-42  bids which are made pursuant to this subsection must be sent by

4-43  certified mail.

4-44      3.  Each advertisement for bids must include a provision that

4-45  sets forth:

5-1  (a) The requirement that [a] :

5-2       (1) A contractor must be qualified pursuant to NRS 338.1379

5-3  to bid on the contract or must be exempt from meeting such

5-4  qualifications pursuant to NRS 338.1383; and

5-5       (2) If the contract is for a public work of this state, each

5-6  subcontractor who will provide labor or a portion of the work or

5-7  improvement to the contractor for which the subcontractor will be

5-8  paid an amount exceeding 5 percent of the prime contractor’s total

5-9  bid must be qualified pursuant to NRS 338.1379 to be a

5-10  subcontractor on the contract; and

5-11      (b) The period during which an application to qualify as a bidder

5-12  or a subcontractor on the contract must be submitted.

5-13      4.  Approved plans and specifications for the bids must be on

5-14  file at a place and time stated in the advertisement for the inspection

5-15  of all persons desiring to bid thereon and for other interested

5-16  persons. Contracts for the project must be awarded on the basis of

5-17  bids received.

5-18      5.  Any bids received in response to an advertisement for bids

5-19  may be rejected if the person responsible for awarding the contract

5-20  determines that:

5-21      (a) The bidder is not a qualified bidder pursuant to NRS

5-22  338.1379, unless the bidder is exempt from meeting such

5-23  qualifications pursuant to NRS 338.1383;

5-24      (b) If the contract is for a public work of this state, a

5-25  subcontractor who will provide labor or a portion of the work or

5-26  improvement to the contractor for which the subcontractor will be

5-27  paid an amount exceeding 5 percent of the prime contractor’s total

5-28  bid is not a qualified subcontractor pursuant to NRS 338.1379;

5-29      (c) The bidder is not responsive;

5-30      [(c)] (d) The quality of the services, materials, equipment or

5-31  labor offered does not conform to the approved plan or

5-32  specifications; or

5-33      [(d)] (e) The public interest would be served by such a rejection.

5-34      6.  Before the State or a local government may commence a

5-35  project subject to the provisions of this section, based upon a

5-36  determination that the public interest would be served by rejecting

5-37  any bids received in response to an advertisement for bids, it shall

5-38  prepare and make available for public inspection a written statement

5-39  containing:

5-40      (a) A list of all persons, including supervisors, whom the State

5-41  or the local government intends to assign to the project, together

5-42  with their classifications and an estimate of the direct and indirect

5-43  costs of their labor;

5-44      (b) A list of all equipment that the State or the local government

5-45  intends to use on the project, together with an estimate of the

6-1  number of hours each item of equipment will be used and the hourly

6-2  cost to use each item of equipment;

6-3  (c) An estimate of the cost of administrative support for the

6-4  persons assigned to the project;

6-5  (d) An estimate of the total cost of the project; and

6-6  (e) An estimate of the amount of money the State or the local

6-7  government expects to save by rejecting the bids and performing the

6-8  project itself.

6-9  7.  This section does not apply to:

6-10      (a) Any utility subject to the provisions of chapter 318 or 710 of

6-11  NRS;

6-12      (b) Any work of construction, reconstruction, improvement and

6-13  maintenance of highways subject to NRS 408.323 or 408.327;

6-14      (c) Normal maintenance of the property of a school district;

6-15      (d) The Las Vegas Valley Water District created pursuant to

6-16  chapter 167, Statutes of Nevada 1947, the Moapa Valley Water

6-17  District created pursuant to chapter 477, Statutes of Nevada 1983 or

6-18  the Virgin Valley Water District created pursuant to chapter 100,

6-19  Statutes of Nevada 1993; or

6-20      (e) The design and construction of a public work for which a

6-21  public body contracts with a design-build team pursuant to NRS

6-22  338.1711 to 338.1727.

6-23      Sec. 5.  NRS 338.1385 is hereby amended to read as follows:

6-24      338.1385  1.  Except as otherwise provided in subsection 8,

6-25  this state, or a local government that awards a contract for the

6-26  construction, alteration or repair of a public work in accordance with

6-27  paragraph (a) of subsection 1 of NRS 338.1373, or a public officer,

6-28  public employee or other person responsible for awarding a contract

6-29  for the construction, alteration or repair of a public work who

6-30  represents the State or the local government, shall not:

6-31      (a) Commence such a project for which the estimated cost

6-32  exceeds $100,000 unless it advertises in a newspaper of general

6-33  circulation in this state for bids for the project; or

6-34      (b) Divide such a project into separate portions to avoid the

6-35  requirements of paragraph (a).

6-36      2.  Except as otherwise provided in subsection 8, a public body

6-37  that maintains a list of properly licensed contractors who are

6-38  interested in receiving offers to bid on public works projects for

6-39  which the estimated cost is more than $25,000 but less than

6-40  $100,000 shall solicit bids from not more than three of the

6-41  contractors on the list for a contract of that value for the

6-42  construction, alteration or repair of a public work. The public body

6-43  shall select contractors from the list in such a manner as to afford

6-44  each contractor an equal opportunity to bid on a public works

6-45  project. A properly licensed contractor must submit a written

7-1  request annually to the public body to remain on the list. Offers for

7-2  bids which are made pursuant to this subsection must be sent by

7-3  certified mail.

7-4  3.  Each advertisement for bids must include a provision that

7-5  sets forth:

7-6  (a) The requirement that [a]

7-7       (1) A contractor must be qualified pursuant to NRS 338.1379

7-8  to bid on the contract or must be exempt from meeting such

7-9  qualifications pursuant to NRS 338.1383; and

7-10          (2) If the contract is for a public work of this state, each

7-11  subcontractor who will provide labor or a portion of the work or

7-12  improvement to the contractor for which the subcontractor will be

7-13  paid an amount exceeding 5 percent of the prime contractor’s total

7-14  bid must be qualified pursuant to NRS 338.1379 to be a

7-15  subcontractor on the contract; and

7-16      (b) The period during which an application to qualify as a bidder

7-17  or subcontractor on the contract must be submitted.

7-18      4.  Approved plans and specifications for the bids must be on

7-19  file at a place and time stated in the advertisement for the inspection

7-20  of all persons desiring to bid thereon and for other interested

7-21  persons. Contracts for the project must be awarded on the basis of

7-22  bids received.

7-23      5.  Any bids received in response to an advertisement for bids

7-24  may be rejected if the person responsible for awarding the contract

7-25  determines that:

7-26      (a) The bidder is not a qualified bidder pursuant to NRS

7-27  338.1379, unless the bidder is exempt from meeting such

7-28  qualifications pursuant to NRS 338.1383;

7-29      (b) If the contract is for a public work of this state, a

7-30  subcontractor who will provide labor or a portion of the work or

7-31  improvement to the contractor for which the subcontractor will be

7-32  paid an amount exceeding 5 percent of the prime contractor’s total

7-33  bid is not a qualified subcontractor pursuant to NRS 338.1379;

7-34      (c) The bidder is not responsive;

7-35      [(c)] (d) The quality of the services, materials, equipment or

7-36  labor offered does not conform to the approved plan or

7-37  specifications; or

7-38      [(d)] (e) The public interest would be served by such a rejection.

7-39      6.  Before the State or a local government may commence a

7-40  project subject to the provisions of this section, based upon a

7-41  determination that the public interest would be served by rejecting

7-42  any bids received in response to an advertisement for bids, it shall

7-43  prepare and make available for public inspection a written statement

7-44  containing:

8-1  (a) A list of all persons, including supervisors, whom the State

8-2  or the local government intends to assign to the project, together

8-3  with their classifications and an estimate of the direct and indirect

8-4  costs of their labor;

8-5  (b) A list of all equipment that the State or the local government

8-6  intends to use on the project, together with an estimate of the

8-7  number of hours each item of equipment will be used and the hourly

8-8  cost to use each item of equipment;

8-9  (c) An estimate of the cost of administrative support for the

8-10  persons assigned to the project;

8-11      (d) An estimate of the total cost of the project; and

8-12      (e) An estimate of the amount of money the State or the local

8-13  government expects to save by rejecting the bids and performing the

8-14  project itself.

8-15      7.  In preparing the estimated cost of a project pursuant to

8-16  subsection 6, the State or a local government must include the fair

8-17  market value of, or, if known, the actual cost of, all materials,

8-18  supplies, labor and equipment to be used for the project.

8-19      8.  This section does not apply to:

8-20      (a) Any utility subject to the provisions of chapter 318 or 710 of

8-21  NRS;

8-22      (b) Any work of construction, reconstruction, improvement and

8-23  maintenance of highways subject to NRS 408.323 or 408.327;

8-24      (c) Normal maintenance of the property of a school district; or

8-25      (d) The Las Vegas Valley Water District created pursuant to

8-26  chapter 167, Statutes of Nevada 1947, the Moapa Valley Water

8-27  District created pursuant to chapter 477, Statutes of Nevada 1983 or

8-28  the Virgin Valley Water District created pursuant to chapter 100,

8-29  Statutes of Nevada 1993; or

8-30      (e) The design and construction of a public work for which a

8-31  public body contracts with a design-build team pursuant to NRS

8-32  338.1711 to 338.1727, inclusive.

8-33      Sec. 6.  NRS 338.1387 is hereby amended to read as follows:

8-34      338.1387  1.  A public body awarding a contract for a public

8-35  work shall not award the contract to a person who, at the time of the

8-36  bid, is not properly licensed under the provisions of chapter 624 of

8-37  NRS or if the contract would exceed the limit of his license. A

8-38  subcontractor named by the contractor who will provide labor or a

8-39  portion of the work or improvement to the contractor for which

8-40  the subcontractor will be paid an amount not exceeding 5 percent

8-41  of the prime contractor’s total bid and who is not properly licensed

8-42  for that portion of the work shall be deemed unacceptable. If [the]

8-43  such a subcontractor is deemed unacceptable, the contractor shall

8-44  provide an acceptable subcontractor before the award of the

8-45  contract.

9-1  2.  If, after awarding the contract, the public body discovers

9-2  that the person to whom the contract was awarded is not licensed, or

9-3  that the contract would exceed his license, the public body shall

9-4  reject the bid and may accept the next lowest bid for that public

9-5  work from a responsive bidder who was determined by the public

9-6  body to be a qualified bidder pursuant to NRS 338.1379 or was

9-7  exempt from meeting such qualifications pursuant to NRS 338.1373

9-8  or 338.1383 without requiring that new bids be submitted.

9-9  Sec. 7.  NRS 338.141 is hereby amended to read as follows:

9-10      338.141  1.  Except as otherwise provided in subsection 2[,]

9-11  and NRS 338.1727, each bid submitted to any officer, department,

9-12  board or commission for the construction of any public work or

9-13  improvement must include:

9-14      (a) The name of each subcontractor who is qualified pursuant

9-15  to NRS 338.1379 to be a subcontractor on a contract for a public

9-16  work and who will provide labor or a portion of the work or

9-17  improvement to the contractor for which he will be paid an amount

9-18  exceeding 5 percent of the prime contractor’s total bid. Within 2

9-19  hours after the completion of the opening of the bids, the contractors

9-20  who submitted the three lowest bids must submit a list containing

9-21  the name of each subcontractor who will provide labor or a portion

9-22  of the work or improvement to the contractor for which he will be

9-23  paid an amount exceeding 1 percent of the prime contractor’s total

9-24  bid or $50,000, whichever is greater, and the number of the license

9-25  issued to the subcontractor pursuant to chapter 624 of NRS. If a

9-26  contractor fails to submit such a list within the required time, his bid

9-27  shall be deemed not responsive.

9-28      (b) A description of the portion of the work or improvement

9-29  which each subcontractor named in the bid will complete.

9-30      2.  The contractor shall list in his bid pursuant to subsection 1

9-31  the name of a subcontractor for each portion of the project that will

9-32  be completed by a subcontractor.

9-33      3.  A contractor whose bid is accepted shall not substitute any

9-34  person for a subcontractor who is named in the bid, unless:

9-35      (a) The awarding authority objects to the subcontractor, requests

9-36  in writing a change in the subcontractor and pays any increase in

9-37  costs resulting from the change; or

9-38      (b) The substitution is approved by the awarding authority or an

9-39  authorized representative of the awarding authority. The substitution

9-40  must be approved if the awarding authority or authorized

9-41  representative of the awarding authority determines that:

9-42          (1) The named subcontractor, after having a reasonable

9-43  opportunity, fails or refuses to execute a written contract with the

9-44  contractor which was offered to the subcontractor with the same

10-1  general terms that all other subcontractors on the project were

10-2  offered;

10-3          (2) The named subcontractor files for bankruptcy or becomes

10-4  insolvent; or

10-5          (3) The named subcontractor fails or refuses to perform his

10-6  subcontract within a reasonable time or is unable to furnish a

10-7  performance bond and payment bond pursuant to NRS 339.025.

10-8      4.  As used in this section, “general terms” means the terms and

10-9  conditions of a contract that set the basic requirements for a project

10-10  and apply without regard to the particular trade or specialty of a

10-11  subcontractor, but does not include any provision that controls or

10-12  relates to the specific portion of the project that will be completed

10-13  by a subcontractor, including, without limitation, the materials to be

10-14  used by the subcontractor or other details of the work to be

10-15  performed by the subcontractor.

10-16     Sec. 8.  NRS 338.1721 is hereby amended to read as follows:

10-17     338.1721  To qualify to participate in a project for the design

10-18  and construction of a public work, a design-build team must:

10-19     1.  Obtain a performance bond and payment bond as required

10-20  pursuant to NRS 339.025;

10-21     2.  Obtain insurance covering general liability and liability for

10-22  errors and omissions;

10-23     3.  Not have been found liable for breach of contract with

10-24  respect to a previous project, other than a breach for legitimate

10-25  cause;

10-26     4.  Not have been disqualified from being awarded a contract

10-27  pursuant to NRS 338.017, 338.1387, 338.145 or 408.333; [and]

10-28     5.  Ensure that the members of the design-build team possess

10-29  the licenses and certificates required to carry out the functions of

10-30  their respective professions within this state[.] ; and

10-31     6.  Ensure that the prime contractor is qualified to bid on a

10-32  public work pursuant to NRS 338.1379 or is exempt from meeting

10-33  such qualifications pursuant to NRS 338.1383.

10-34     Sec. 9.  NRS 338.1723 is hereby amended to read as follows:

10-35     338.1723  1.  A public body shall advertise for preliminary

10-36  proposals for the design and construction of a public work by a

10-37  design-build team in a newspaper of general circulation in this state.

10-38     2.  A request for preliminary proposals published pursuant to

10-39  subsection 1 must include, without limitation:

10-40     (a) A description of the public work to be designed and

10-41  constructed;

10-42     (b) Separate estimates of the costs of designing and constructing

10-43  the public work;

11-1      (c) The dates on which it is anticipated that the separate phases

11-2  of the design and construction of the public work will begin and

11-3  end;

11-4      (d) The date by which preliminary proposals must be submitted

11-5  to the public body, which must not be less than 30 days after the

11-6  date that the request for preliminary proposals is first published in a

11-7  newspaper pursuant to subsection 1; [and]

11-8      (e) A statement setting forth the place and time in which a

11-9  design-build team desiring to submit a proposal for the public work

11-10  may obtain the information necessary to submit a proposal,

11-11  including, without limitation, the information set forth in subsection

11-12  3[.] ; and

11-13     (f) A statement setting forth that the prime contractor must be

11-14  qualified to bid on a public work pursuant to NRS 338.1379 or be

11-15  exempt from meeting such qualifications pursuant to NRS

11-16  338.1383 before submitting a preliminary proposal.

11-17     3.  A public body shall maintain at the time and place set forth

11-18  in the request for preliminary proposals the following information

11-19  for inspection by a design-build team desiring to submit a proposal

11-20  for the public work:

11-21     (a) The extent to which designs must be completed for both

11-22  preliminary and final proposals and any other requirements for the

11-23  design and construction of the public work that the public body

11-24  determines to be necessary;

11-25     (b) A list of the requirements set forth in NRS 338.1721;

11-26     (c) A list of the factors that the public body will use to evaluate

11-27  design-build teams who submit a proposal for the public work,

11-28  including, without limitation:

11-29         (1) The relative weight to be assigned to each factor pursuant

11-30  to NRS 338.1727; and

11-31         (2) A disclosure of whether the factors that are not related to

11-32  cost are, when considered as a group, more or less important in the

11-33  process of evaluation than the factor of cost;

11-34     (d) Notice that a design-build team desiring to submit a proposal

11-35  for the public work must include with its proposal the information

11-36  used by the public body to determine finalists among the design-

11-37  build teams submitting proposals pursuant to subsection 2 of NRS

11-38  338.1725 and a description of that information;

11-39     (e) A statement that a design-build team whose prime contractor

11-40  holds a certificate of eligibility to receive a preference in bidding on

11-41  public works issued pursuant to NRS 338.1389 or 338.147 should

11-42  submit a copy of the certificate of eligibility with its proposal; and

11-43     (f) A statement as to whether a design-build team that is selected

11-44  as a finalist pursuant to NRS 338.1725 but is not awarded the

11-45  design-build contract pursuant to NRS 338.1727 will be partially

12-1  reimbursed for the cost of preparing a final proposal and, if so, an

12-2  estimate of the amount of the partial reimbursement.

12-3      Sec. 10.  NRS 338.1727 is hereby amended to read as follows:

12-4      338.1727  1.  After selecting the finalists pursuant to NRS

12-5  338.1725, the public body shall provide to each finalist a request for

12-6  final proposals for the public work. The request for final proposals

12-7  must:

12-8      (a) Set forth the factors that the public body will use to select a

12-9  design-build team to design and construct the public work, including

12-10  the relative weight to be assigned to each factor; and

12-11     (b) Set forth the date by which final proposals must be

12-12  submitted to the public body.

12-13     2.  If one or more of the finalists selected pursuant to NRS

12-14  338.1725 is disqualified or withdraws, the public body may select a

12-15  design-build team from the remaining finalists if at least two

12-16  finalists remain.

12-17     3.  Except as otherwise provided in this subsection, in assigning

12-18  the relative weight to each factor for selecting a design-build team

12-19  pursuant to subsection 1, the public body shall assign, without

12-20  limitation, a relative weight of 5 percent to the possession of a

12-21  certificate of eligibility to receive a preference in bidding on public

12-22  works and a relative weight of at least 30 percent to the proposed

12-23  cost of design and construction of the public work. If any federal

12-24  statute or regulation precludes the granting of federal assistance or

12-25  reduces the amount of that assistance for a particular public work

12-26  because of the provisions of this subsection relating to preference in

12-27  bidding on public works, those provisions of this subsection do not

12-28  apply insofar as their application would preclude or reduce federal

12-29  assistance for that public work.

12-30     [3.] 4. A final proposal submitted by a design-build team

12-31  pursuant to this section must be prepared thoroughly[,] and be

12-32  responsive to the criteria that the public body will use to select a

12-33  design-build team to design and construct the public work described

12-34  in subsection 1 . [and comply with the provisions] A final proposal

12-35  is exempt from the requirements of NRS 338.141.

12-36     [4.] 5. After receiving the final proposals for the public work,

12-37  the public body shall:

12-38     (a) Select the most cost-effective and responsive final proposal,

12-39  using the criteria set forth pursuant to subsections 1 and [2;] 3; or

12-40     (b) Reject all the final proposals.

12-41     [5.] 6. If a public body selects a final proposal pursuant to

12-42  paragraph (a) of subsection [4,] 5, the public body shall, at its next

12-43  regularly scheduled meeting:

12-44     (a) Review and ratify the selection.

13-1      (b) Award the design-build contract to the design-build team

13-2  whose proposal is selected.

13-3      (c) Partially reimburse the unsuccessful finalists if partial

13-4  reimbursement was provided for in the request for preliminary

13-5  proposals pursuant to paragraph (f) of subsection 3 of NRS

13-6  338.1723. The amount of reimbursement must not exceed, for each

13-7  unsuccessful finalist, 3 percent of the total amount to be paid to the

13-8  design-build team as set forth in the design-build contract.

13-9      (d) Make available to the public a summary setting forth the

13-10  factors used by the public body to select the successful design-build

13-11  team and the ranking of the design-build teams who submitted final

13-12  proposals. The public body shall not release to a third party, or

13-13  otherwise make public, financial or proprietary information

13-14  submitted by a design-build team.

13-15     [6.] 7. A contract awarded pursuant to this section:

13-16     (a) Must specify:

13-17         (1) An amount that is the maximum amount that the public

13-18  body will pay for the performance of all the work required by the

13-19  contract, excluding any amount related to costs that may be incurred

13-20  as a result of unexpected conditions or occurrences as authorized by

13-21  the contract;

13-22         (2) An amount that is the maximum amount that the public

13-23  body will pay for the performance of the professional services

13-24  required by the contract; and

13-25         (3) A date by which performance of the work required by the

13-26  contract must be completed.

13-27     (b) May set forth the terms by which the design-build team

13-28  agrees to name the public body, at the cost of the public body, as an

13-29  additional insured in an insurance policy held by the design-build

13-30  team.

13-31     (c) Except as otherwise provided in paragraph (d), must not

13-32  require the design professional to defend, indemnify or hold

13-33  harmless the public body or the employees, officers or agents of that

13-34  public body from any liability, damage, loss, claim, action or

13-35  proceeding caused by the negligence, errors, omissions, recklessness

13-36  or intentional misconduct of the employees, officers and agents of

13-37  the public body.

13-38     (d) May require the design-build team to defend, indemnify and

13-39  hold harmless the public body, and the employees, officers and

13-40  agents of the public body from any liabilities, damages, losses,

13-41  claims, actions or proceedings, including, without limitation,

13-42  reasonable attorneys’ fees, that are caused by the negligence, errors,

13-43  omissions, recklessness or intentional misconduct of the design-

13-44  build team or the employees or agents of the design-build team in

13-45  the performance of the contract.

14-1      [7.] 8. Any provision of a contract that is in violation of

14-2  paragraph (c) of subsection [6] 7 is declared to be contrary to the

14-3  public policy of this state and is void.

14-4      [8.] 9. A design-build team to whom a contract is awarded

14-5  pursuant to this section shall:

14-6      (a) Assume overall responsibility for ensuring that the design

14-7  and construction of the public work is completed in a satisfactory

14-8  manner; and

14-9      (b) Use the workforce of the prime contractor on the design-

14-10  build team to construct at least 15 percent of the public work.

14-11     Sec. 11.  1.  This section and sections 1 to 4, inclusive, and 6

14-12  to 10, inclusive, of this act become effective upon passage and

14-13  approval.

14-14     2.  Section 4 of this act expires by limitation on April 30, 2013.

14-15     3.  Section 5 of this act becomes effective on May 1, 2013.

 

14-16  H