A BILL TO BE ENTITLED
AN ACT authorizing catawba county to give preference to a local bidder when purchasing goods or services or entering into contracts for the construction or repair of buildings.
The General Assembly of North Carolina enacts:
SECTION 1.  G.S. 143‑128 reads as rewritten:
"§ 143‑128. Requirements for certain building contracts.
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(b)	Separate‑prime contracts. – When the State, county, municipality, or other public body uses the separate‑prime contract system, it shall accept bids for each subdivision of work for which specifications are required to be prepared under subsection (a) of this section and shall award the respective work specified separately to responsible and reliable persons, firms or corporations regularly engaged in their respective lines of work. When the estimated cost of work to be performed in any single subdivision or branch for which separate bids are required by this subsection is less than twenty‑five thousand dollars ($25,000), the same may be included in the contract for one of the other subdivisions or branches of the work, irrespective of total project cost. Except as authorized in G.S. 143‑129(b1), the contracts shall be awarded to the lowest responsible, responsive bidders, taking into consideration quality, performance, the time specified in the bids for performance of the contract, and compliance with G.S. 143‑128.2. Bids may also be accepted from and awards made to separate contractors for other categories of work.
Each separate contractor shall be directly liable to the State of North Carolina, or to the county, municipality, or other public body and to the other separate contractors for the full performance of all duties and obligations due respectively under the terms of the separate contracts and in accordance with the plans and specifications, which shall specifically set forth the duties and obligations of each separate contractor. For the purpose of this section, "separate contractor" means any person, firm or corporation who shall enter into a contract with the State, or with any county, municipality, or other public entity to erect, construct, alter or repair any building or buildings, or parts of any building or buildings.
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(d)	Single‑prime contracts. – All bidders in a single‑prime project shall identify on their bid the contractors they have selected for the subdivisions or branches of work for:
(1)	Heating, ventilating, and air conditioning;
(2)	Plumbing;
(3)	Electrical; and
(4)	General.
Except as authorized in G.S. 143‑129(b1), the contract shall be awarded to the lowest responsible, responsive bidder, taking into consideration quality, performance, the time specified in the bids for performance of the contract, and compliance with G.S. 143‑128.2. A contractor whose bid is accepted shall not substitute any person as subcontractor in the place of the subcontractor listed in the original bid, except (i) if the listed subcontractor's bid is later determined by the contractor to be nonresponsible or nonresponsive or the listed subcontractor refuses to enter into a contract for the complete performance of the bid work, or (ii) with the approval of the awarding authority for good cause shown by the contractor. The terms, conditions, and requirements of each contract between the contractor and a subcontractor performing work under a subdivision or branch of work listed in this subsection shall incorporate by reference the terms, conditions, and requirements of the contract between the contractor and the State, county, municipality, or other public body.
When contracts are awarded pursuant to this section, the public body shall make available to subcontractors the dispute resolution process as provided for in subsection (f1) of this section.
(d1)	Dual bidding. – The State, a county, municipality, or other public entity may accept bids to erect, construct, alter, or repair a building under both the single‑prime and separate‑prime contracting systems and, except as authorized in G.S. 143‑129(b1), shall award the contract to the lowest responsible, responsive bidder under the single‑prime system or to the lowest responsible, responsive bidder under the separate‑prime system, taking into consideration quality, performance, compliance with G.S. 143‑128.2, and time specified in the bids to perform the contract. In determining the system under which the contract will be awarded to the lowest responsible, responsive bidder, the public entity may consider cost of construction oversight, time for completion, and other factors it considers appropriate. The bids received as separate‑prime bids shall be received, but not opened, one hour prior to the deadline for the submission of single‑prime bids. The amount of a bid submitted by a subcontractor to the general contractor under the single‑prime system shall not exceed the amount bid, if any, for the same work by that subcontractor to the public entity under the separate‑prime system. The provisions of subsection (b) of this section shall apply to separate‑prime contracts awarded pursuant to this section and the provisions of subsection (d) of this section shall apply to single‑prime contracts awarded pursuant to this section.
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SECTION 2.  G.S. 143‑128.2 reads as rewritten:
"§ 143‑128.2.  Minority business participation goals.
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(c)	Each bidder, which shall mean first‑tier subcontractor for construction manager at risk projects for purposes of this subsection, on a project bid under any of the methods authorized under G.S. 143‑128(a1) shall identify on its bid the minority businesses that it will use on the project and an affidavit listing the good faith efforts it has made pursuant to subsection (f) of this section and the total dollar value of the bid that will be performed by the minority businesses. A contractor, including a first‑tier subcontractor on a construction manager at risk project, that performs all of the work under a contract with its own workforce may submit an affidavit to that effect in lieu of the affidavit otherwise required under this subsection. The apparent lowest responsible, responsive bidder or the lowest responsible, responsive bidder given preference under G.S. 143‑129(b1)  shall also file the following:
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(h)	The State, counties, municipalities, and all other public bodies shall award public building contracts, including those awarded under G.S. 143‑128.1, 143‑129, and 143‑131, without regard to race, religion, color, creed, national origin, sex, age, or handicapping condition, as defined in G.S. 168A‑3. Nothing in this section shall be construed to require contractors or awarding authorities to award contracts or subcontracts to or to make purchases of materials or equipment from minority‑business contractors or minority‑business subcontractors who do not submit the lowest responsible, responsive bid or bids. However, the provisions of G.S. 143‑129(b1) shall apply to minority‑business contractors or minority‑business subcontractors under this subsection.
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SECTION 3.  G.S. 143‑129 reads as rewritten:
"§ 143‑129.  Procedure for letting of public contracts.
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(b)	Advertisement and Letting of Contracts. – Where the contract is to be let by a board or governing body of the State government or of a State institution, proposals shall be invited by advertisement in a newspaper having general circulation in the State of North Carolina. Where the contract is to be let by a political subdivision of the State, proposals shall be invited by advertisement in a newspaper having general circulation in the political subdivision or by electronic means, or both. A decision to advertise solely by electronic means, whether for particular contracts or generally for all contracts that are subject to this Article, shall be approved by the governing board of the political subdivision of the State at a regular meeting of the board.
The advertisements for bidders required by this section shall appear at a time where at least seven full days shall lapse between the date on which the notice appears and the date of the opening of bids. The advertisement shall: (i) state the time and place where plans and specifications of proposed work or a complete description of the apparatus, supplies, materials, or equipment may be had; (ii) state the time and place for opening of the proposals; and (iii) reserve to the board or governing body the right to reject any or all proposals.
Proposals may be rejected for any reason determined by the board or governing body to be in the best interest of the unit. However, the proposal shall not be rejected for the purpose of evading the provisions of this Article. No board or governing body of the State or political subdivision thereof may assume responsibility for construction or purchase contracts, or guarantee the payments of labor or materials therefor except under provisions of this Article.
All proposals shall be opened in public and the board or governing body shall, except as authorized in subsection (b1) of this section, award the contract to the lowest responsible, responsive bidder or bidders, taking into consideration quality, performance and the time specified in the proposals for the performance of the contract.
In the event the lowest responsible, responsive bids are in excess of the funds available for the project or purchase, the responsible board or governing body is authorized to enter into negotiations with the lowest responsible bidder above mentioned, making reasonable changes in the plans and specifications as may be necessary to bring the contract price within the funds available, and may award a contract to such bidder upon recommendation of the Department of Administration in the case of the State government or of a State institution or agency, or upon recommendation of the responsible commission, council or board in the case of a subdivision of the State, if such bidder will agree to perform the work or provide the apparatus, supplies, materials, or equipment at the negotiated price within the funds available therefor. If a contract cannot be let under the above conditions, the board or governing body is authorized to readvertise, as herein provided, after having made such changes in plans and specifications as may be necessary to bring the cost of the project or purchase within the funds available therefor. The procedure above specified may be repeated if necessary in order to secure an acceptable contract within the funds available therefor.
No proposal for construction or repair work may be considered or accepted by said board or governing body unless at the time of its filing the same shall be accompanied by a deposit with said board or governing body of cash, or a cashier's check, or a certified check on some bank or trust company insured by the Federal Deposit Insurance Corporation in an amount equal to not less than five percent (5%) of the proposal. In lieu of making the cash deposit as above provided, such bidder may file a bid bond executed by a corporate surety licensed under the laws of North Carolina to execute such bonds, conditioned that the surety will upon demand forthwith make payment to the obligee upon said bond if the bidder fails to execute the contract in accordance with the bid bond. This deposit shall be retained if the successful bidder fails to execute the contract within 10 days after the award or fails to give satisfactory surety as required herein.
Bids shall be sealed and the opening of an envelope or package with knowledge that it contains a bid or the disclosure or exhibition of the contents of any bid by anyone without the permission of the bidder prior to the time set for opening in the invitation to bid shall constitute a Class 1 misdemeanor.
(b1)	Price‑Match Preference. – The governing body of a county may give preference to the lowest responsible, responsive resident bidder if both of the following conditions are met:  (i) the bid of the lowest responsible, responsive resident bidder is no greater than five percent (5%) or ten thousand dollars ($10,000), whichever is less, of the bid of the lowest responsible, responsive nonresident bidder; and (ii) the lowest responsible, responsive resident bidder matches the bid of the lowest responsible, responsive nonresident bidder.
For purposes of this subsection, the following definitions apply:
(1)	Nonresident bidder. – A bidder that is not a resident bidder as defined in subdivision (2) of this subsection.
(2)	Resident bidder. – A person or corporation who (i) is legally authorized to engage in the sale of goods or services or to perform construction or repair work in this State and (ii) certifies in the bid submitted that the person or corporation has, for at least six months prior to the announcement of the solicitation of bids, maintained a physical place of business within the corporate boundaries of the political subdivision with at least one employee for whom the person or corporation has paid payroll taxes in this State.
(b2)	Negotiations With Price‑Match Bidder. – The provisions of subsection (b) of this section that authorize the governing body of a political subdivision to enter into negotiations with the lowest responsible, responsive bidder if the lowest responsible, responsive bids are in excess of the funds available for the project or purchase shall also apply to a bidder under subsection (b1) of this section.
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SECTION 4.  G.S. 143‑131 reads as rewritten:
"§ 143‑131.  When counties, cities, towns and other subdivisions may let contracts on informal bids.
(a)	All contracts for construction or repair work or for the purchase of apparatus, supplies, materials, or equipment, involving the expenditure of public money in the amount of thirty thousand dollars ($30,000) or more, but less than the limits prescribed in G.S. 143‑129, made by any officer, department, board, local school administrative unit, or commission of any county, city, town, or other subdivision of this State shall be made after informal bids have been secured. Except as authorized in G.S. 143‑129(b1), all such contracts shall be awarded to the lowest responsible, responsive bidder, taking into consideration quality, performance, and the time specified in the bids for the performance of the contract. It shall be the duty of any officer, department, board, local school administrative unit, or commission entering into such contract to keep a record of all bids submitted, and such record shall not be subject to public inspection until the contract has been awarded.
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SECTION 5.  G.S. 143‑132 reads as rewritten:
"§ 143‑132.  Minimum number of bids for public contracts.
(a)	No contract to which G.S. 143‑129 applies for construction or repairs shall be awarded by any board or governing body of the State, or any subdivision thereof, unless at least three competitive bids have been received from reputable and qualified contractors regularly engaged in their respective lines of endeavor; however, this section shall not apply to contracts which are negotiated as provided for in G.S. 143‑129. Provided that if after advertisement for bids as required by G.S. 143‑129, not as many as three competitive bids have been received from reputable and qualified contractors regularly engaged in their respective lines of endeavor, said board or governing body of the State agency or of a county, city, town or other subdivision of the State shall again advertise for bids; and if as a result of such second advertisement, not as many as three competitive bids from reputable and qualified contractors are received, such board or governing body may then let the contract to the lowest responsible bidder submitting a bid for such project, even though only one bid is received. However, in letting contracts under this section, the governing body of a county may give preference to the lowest responsible, responsive resident bidder as authorized in G.S. 143‑129(b1).
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SECTION 6.  This act applies to Catawba County only.
SECTION 7.  This act is effective when it becomes law and applies to bids received on and after that date.