Nevada Revised Statutes 338.1389 – Contract for public work for which estimated cost exceeds $250,000 must be awarded to contractor who submits best bid; certain bids deemed best bid; eligibility to receive preference in bidding; issuance of certific…
1. Except as otherwise provided in subsection 10 and NRS 338.1385, 338.1386 and 338.13864, a public body or its authorized representative shall award a contract for a public work for which the estimated cost exceeds $250,000 to the contractor who submits the best bid.
Terms Used In Nevada Revised Statutes 338.1389
- Affidavit: A written statement of facts confirmed by the oath of the party making it, before a notary or officer having authority to administer oaths.
- Assets: (1) The property comprising the estate of a deceased person, or (2) the property in a trust account.
- Authorized representative: means a person designated by a public body to be responsible for the development, solicitation, award or administration of contracts for public works pursuant to this chapter. See Nevada Revised Statutes 338.010
- Contract: means a written contract entered into between a contractor and a public body for the provision of labor, materials, equipment or supplies for a public work. See Nevada Revised Statutes 338.010
- Contract: A legal written agreement that becomes binding when signed.
- Contractor: means :
(a) A person who is licensed pursuant to the provisions of chapter 624 of NRS. See Nevada Revised Statutes 338.010
- Evidence: Information presented in testimony or in documents that is used to persuade the fact finder (judge or jury) to decide the case for one side or the other.
- General contractor: means a person who is licensed to conduct business in one, or both, of the following branches of the contracting business:
(a) General engineering contracting, as described in subsection 2 of NRS 624. See Nevada Revised Statutes 338.010
- Gift: A voluntary transfer or conveyance of property without consideration, or for less than full and adequate consideration based on fair market value.
- Liabilities: The aggregate of all debts and other legal obligations of a particular person or legal entity.
- person: means a natural person, any form of business or social organization and any other nongovernmental legal entity including, but not limited to, a corporation, partnership, association, trust or unincorporated organization. See Nevada Revised Statutes 0.039
- Public body: means the State, county, city, town, school district or any public agency of this State or its political subdivisions sponsoring or financing a public work. See Nevada Revised Statutes 338.010
- Public work: means any project for the new construction, repair or reconstruction of a project financed in whole or in part from public money for:
(a) Public buildings;
(b) Jails and prisons;
(c) Public roads;
(d) Public highways;
(e) Public streets and alleys;
(f) Public utilities;
(g) Publicly owned water mains and sewers;
(h) Public parks and playgrounds;
(i) Public convention facilities which are financed at least in part with public money; and
(j) All other publicly owned works and property. See Nevada Revised Statutes 338.010
- Specialty contractor: means a person who is licensed to conduct business as described in subsection 4 of NRS 624. See Nevada Revised Statutes 338.010
- Statute: A law passed by a legislature.
2. Except as otherwise provided in subsection 10 or limited by subsection 11, the lowest bid that is:
(a) Submitted by a responsive and responsible contractor who:
(1) Has been determined by the public body to be a qualified bidder pursuant to NRS 338.1379 or 338.1382;
(2) At the time the contractor submits his or her bid, provides a valid certificate of eligibility to receive a preference in bidding on public works issued to the contractor by the State Contractors’ Board pursuant to subsection 3 or 4; and
(3) Within 2 hours after the completion of the opening of the bids by the public body or its authorized representative, submits a signed affidavit that meets the requirements of subsection 1 of NRS 338.0117; and
(b) Not more than 5 percent higher than the bid submitted by the lowest responsive and responsible bidder who:
(1) Does not provide, at the time he or she submits the bid, a valid certificate of eligibility to receive a preference in bidding on public works issued to him or her by the State Contractors’ Board pursuant to subsection 3 or 4; or
(2) Does not submit, within 2 hours after the completion of the opening of the bids by the public body or its authorized representative, a signed affidavit certifying that he or she will comply with the requirements of paragraphs (a) to (d), inclusive, of subsection 1 of NRS 338.0117 for the duration of the contract, shall be deemed to be the best bid for the purposes of this section.
3. The State Contractors’ Board shall issue a certificate of eligibility to receive a preference in bidding on public works to a general contractor who is licensed pursuant to the provisions of chapter 624 of NRS and submits to the Board an affidavit from a certified public accountant setting forth that the general contractor has, while licensed as a general contractor in this State:
(a) Paid directly, on his or her own behalf:
(1) The sales and use taxes imposed pursuant to chapters 372, 374 and 377 of NRS on materials used for construction in this State, including, without limitation, construction that is undertaken or carried out on land within the boundaries of this State that is managed by the Federal Government or is on an Indian reservation or Indian colony, of not less than $5,000 for each consecutive 12-month period for 60 months immediately preceding the submission of the affidavit from the certified public accountant;
(2) The governmental services tax imposed pursuant to chapter 371 of NRS on the vehicles used in the operation of his or her business in this State of not less than $5,000 for each consecutive 12-month period for 60 months immediately preceding the submission of the affidavit from the certified public accountant; or
(3) Any combination of such sales and use taxes and governmental services tax; or
(b) Acquired, by purchase, inheritance, gift or transfer through a stock option plan, all the assets and liabilities of a viable, operating construction firm that possesses a:
(1) License as a general contractor pursuant to the provisions of chapter 624 of NRS; and
(2) Certificate of eligibility to receive a preference in bidding on public works.
4. The State Contractors’ Board shall issue a certificate of eligibility to receive a preference in bidding on public works to a specialty contractor who is licensed pursuant to the provisions of chapter 624 of NRS and submits to the Board an affidavit from a certified public accountant setting forth that the specialty contractor has, while licensed as a specialty contractor in this State:
(a) Paid directly, on his or her own behalf:
(1) The sales and use taxes pursuant to chapters 372, 374 and 377 of NRS on materials used for construction in this State, including, without limitation, construction that is undertaken or carried out on land within the boundaries of this State that is managed by the Federal Government or is on an Indian reservation or Indian colony, of not less than $5,000 for each consecutive 12-month period for 60 months immediately preceding the submission of the affidavit from the certified public accountant;
(2) The governmental services tax imposed pursuant to chapter 371 of NRS on the vehicles used in the operation of his or her business in this State of not less than $5,000 for each consecutive 12-month period for 60 months immediately preceding the submission of the affidavit from the certified public accountant; or
(3) Any combination of such sales and use taxes and governmental services tax; or
(b) Acquired, by purchase, inheritance, gift or transfer through a stock option plan, all the assets and liabilities of a viable, operating construction firm that possesses a:
(1) License as a specialty contractor pursuant to the provisions of chapter 624 of NRS; and
(2) Certificate of eligibility to receive a preference in bidding on public works.
5. For the purposes of complying with the requirements set forth in paragraph (a) of subsection 3 and paragraph (a) of subsection 4, a contractor shall be deemed to have paid:
(a) Sales and use taxes and governmental services taxes that were paid in this State by an affiliate or parent company of the contractor, if the affiliate or parent company is also a general contractor or specialty contractor, as applicable; and
(b) Sales and use taxes that were paid in this State by a joint venture in which the contractor is a participant, in proportion to the amount of interest the contractor has in the joint venture.
6. A contractor who has received a certificate of eligibility to receive a preference in bidding on public works from the State Contractors’ Board pursuant to subsection 3 or 4 shall, at the time for the renewal of his or her contractor’s license pursuant to NRS 624.283, submit to the Board an affidavit from a certified public accountant setting forth that the contractor has, during the immediately preceding 12 months, paid the taxes required pursuant to paragraph (a) of subsection 3 or paragraph (a) of subsection 4, as applicable, to maintain eligibility to hold such a certificate.
7. A contractor who fails to submit an affidavit to the Board pursuant to subsection 6 ceases to be eligible to receive a preference in bidding on public works unless the contractor reapplies for and receives a certificate of eligibility pursuant to subsection 3 or 4, as applicable.
8. If a contractor holds more than one contractor’s license, the contractor must submit a separate application for each license pursuant to which the contractor wishes to qualify for a preference in bidding. Upon issuance, the certificate of eligibility to receive a preference in bidding on public works becomes part of the contractor’s license for which the contractor submitted the application.
9. If a contractor who applies to the State Contractors’ Board for a certificate of eligibility to receive a preference in bidding on public works:
(a) Submits false information to the Board regarding the required payment of taxes, the contractor is not eligible to receive a preference in bidding on public works for a period of 5 years after the date on which the Board becomes aware of the submission of the false information; or
(b) Is found by the Board to have, within the preceding 5 years, materially breached a contract for a public work for which the cost exceeds $5,000,000, the contractor is not eligible to receive a preference in bidding on public works.
10. If any federal statute or regulation precludes the granting of federal assistance or reduces the amount of that assistance for a particular public work because of the provisions of subsection 2, those provisions do not apply insofar as their application would preclude or reduce federal assistance for that work.
11. If a bid is submitted by two or more contractors as a joint venture or by one of them as a joint venturer, the bid may receive a preference in bidding only if both or all of the joint venturers separately meet the requirements of subsection 2.
12. The State Contractors’ Board shall adopt regulations and may assess reasonable fees relating to the certification of contractors for a preference in bidding on public works.
13. A person who submitted a bid on the public work or an entity who believes that the contractor who was awarded the contract for the public work wrongfully holds a certificate of eligibility to receive a preference in bidding on public works may challenge the validity of the certificate by filing a written objection with the public body to which the contractor has submitted a bid on a contract for the construction of a public work. A written objection authorized pursuant to this subsection must:
(a) Set forth proof or substantiating evidence to support the belief of the person or entity that the contractor wrongfully holds a certificate of eligibility to receive a preference in bidding on public works; and
(b) Be filed with the public body not later than 3 business days after the opening of the bids by the public body or its authorized representative.
14. If a public body receives a written objection pursuant to subsection 13, the public body shall determine whether the objection is accompanied by the proof or substantiating evidence required pursuant to paragraph (a) of that subsection. If the public body determines that the objection is not accompanied by the required proof or substantiating evidence, the public body shall dismiss the objection and the public body or its authorized representative may proceed immediately to award the contract. If the public body determines that the objection is accompanied by the required proof or substantiating evidence, the public body shall determine whether the contractor qualifies for the certificate pursuant to the provisions of this section and the public body or its authorized representative may proceed to award the contract accordingly.