NRS338.16995. Contract between construction manager at risk and subcontractor to provide labor, materials or equipment on project: Authority to enter into; procedure for awarding subcontracts of certain estimated value; substitution of subcontractor on such subcontracts; availability of certain information to applicants and public. [Effective through June 30, 2017.]

      1.  If a public body enters into a contract with a construction manager at risk for the construction of a public work pursuant to NRS 338.1696, the construction manager at risk may enter into a subcontract for the provision of labor, materials and equipment necessary for the construction of the public work only as provided in this section.

      2.  The provisions of this section apply only to a subcontract for which the estimated value is at least 1 percent of the total cost of the public work or $50,000, whichever is greater.

      3.  After the design and schedule for the construction of the public work is sufficiently detailed and complete to allow a subcontractor to submit a meaningful and responsive proposal, and not later than 21 days before the date by which a proposal for the provision of labor, materials or equipment by a subcontractor must be submitted, the construction manager at risk shall notify in writing each subcontractor who was determined pursuant to NRS 338.16991 to be qualified to submit such a proposal of a request for such proposals. A copy of the notice required pursuant to this subsection must be provided to the public body.

      4.  The notice required pursuant to subsection 3 must include, without limitation:

      (a) A description of the design for the public work and a statement indicating where a copy of the documents relating to that design may be obtained;

      (b) A description of the type and scope of labor, equipment and materials for which subcontractor proposals are being sought;

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

      (d) If a preproposal meeting regarding the scope of the work to be performed by the subcontractor is to be held, the date, time and place at which the preproposal meeting will be held;

      (e) The date and time by which proposals must be received, and to whom they must be submitted;

      (f) The date, time and place at which proposals will be opened for evaluation;

      (g) A description of the bonding and insurance requirements for subcontractors;

      (h) Any other information reasonably necessary for a subcontractor to submit a responsive proposal; and

      (i) A statement in substantially the following form:

 

Notice: For a proposal for a subcontract on the public work to be considered:

       1.  The subcontractor must be licensed pursuant to chapter 624 of NRS;

       2.  The proposal must be timely received;

       3.  If a preproposal meeting regarding the scope of the work to be performed by the subcontractor is held, the subcontractor must attend the preproposal meeting; and

       4.  The subcontractor may not modify the proposal after the date and time the proposal is received.

 

      5.  A subcontractor may not modify a proposal after the date and time the proposal is received.

      6.  To be considered responsive, a proposal must:

      (a) Be timely received by the construction manager at risk; and

      (b) Substantially and materially conform to the details and requirements included in the proposal instructions and for the finalized bid package for the public work, including, without limitation, details and requirements affecting price and performance.

      7.  The opening of the proposals must be attended by an authorized representative of the public body. The public body may require the architect or engineer responsible for the design of the public work to attend the opening of the proposals. The opening of the proposals is not otherwise open to the public.

      8.  At the time the proposals are opened, the construction manager at risk shall compile and provide to the public body or its authorized representative a list that includes, without limitation, the name and contact information of each subcontractor who submits a timely proposal.

      9.  Not more than 10 working days after opening the proposals and before the construction manager at risk submits a guaranteed maximum price, a fixed price or a fixed price plus reimbursement pursuant to NRS 338.1696, the construction manager at risk shall:

      (a) Evaluate the proposals and determine which proposals are responsive.

      (b) Select the subcontractor who submits the proposal that the construction manager at risk determines is the best proposal. Subject to the provisions of subparagraphs (1), (2) and (3), if only one subcontractor submits a proposal, the construction manager at risk may select that subcontractor. The subcontractor must be selected from among those:

             (1) Who attended the preproposal meeting regarding the scope of the work to be performed by the subcontractor, if such a preproposal meeting was held;

             (2) Who submitted a responsive proposal; and

             (3) Whose names are included on the list compiled and provided to the public body or its authorized representative pursuant to subsection 8.

      (c) Inform the public body or its authorized representative which subcontractor has been selected.

      10.  The public body or its authorized representative shall ensure that the evaluation of proposals and selection of subcontractors are done pursuant to the provisions of this section and regulations adopted by the State Public Works Board.

      11.  A subcontractor selected pursuant to subsection 9 need not be selected by the construction manager at risk solely on the basis of lowest price.

      12.  Except as otherwise provided in subsections 13 and 15, the construction manager at risk shall enter into a subcontract with a subcontractor selected pursuant to subsection 9 to provide the labor, materials or equipment described in the request for proposals.

      13.  A construction manager at risk shall not substitute a subcontractor for any subcontractor selected pursuant to subsection 9 unless:

      (a) The public body or its authorized representative objects to the subcontractor, requests in writing a change in the subcontractor and pays any increase in costs resulting from the change; or

      (b) The substitution is approved by the public body after the selected subcontractor:

             (1) Files for bankruptcy or becomes insolvent;

             (2) After having a reasonable opportunity, fails or refuses to execute a written contract with the construction manager at risk which was offered to the selected subcontractor with the same general terms that all other subcontractors on the project were offered;

             (3) Fails or refuses to perform the subcontract within a reasonable time;

             (4) Is unable to furnish a performance bond and payment bond pursuant to NRS 339.025, if required for the public work; or

             (5) Is not properly licensed to provide that labor or portion of the work.

      14.  If a construction manager at risk substitutes a subcontractor for any subcontractor selected pursuant to subsection 9 without complying with the provisions of subsection 13, the construction manager at risk shall forfeit, as a penalty to the public body, an amount equal to 1 percent of the total amount of the contract.

      15.  If a construction manager at risk does not select a subcontractor pursuant to subsection 9 to perform a portion of work on a public work, the construction manager at risk shall notify the public body that the construction manager at risk intends to perform that portion of work. If, after providing such notification, the construction manager at risk substitutes a subcontractor to perform the work, the construction manager at risk shall forfeit, as a penalty to the public body, the lesser of, and excluding any amount of the contract that is attributable to change orders:

      (a) An amount equal to 2.5 percent of the total amount of the contract; or

      (b) An amount equal to 35 percent of the estimate by the engineer of the cost of the work the construction manager at risk selected himself or herself to perform on the public work.

      16.  The construction manager at risk shall make available to the public the name of each subcontractor who submits a proposal.

      17.  If a public work is being constructed in phases, and a construction manager at risk selects a subcontractor pursuant to subsection 9 for the provision of labor, materials or equipment for any phase of that construction, the construction manager at risk may select that subcontractor for the provision of labor, materials or equipment for any other phase of the construction without following the requirements of subsections 3 to 11, inclusive.

      18.  As used in this section, “general terms” has the meaning ascribed to it in NRS 338.141.

      (Added to NRS by 2011, 3682; A 2013, 2980; R 2013, 2980, effective July 1, 2017)