§§ 143-1 through 143-34.9: Repealed by Session Laws 2006-203, s. 1, effective July 1, 2007, and applicable to the budget for the 2007-2009 biennium and each subsequent biennium thereafter.

Local Modification. - Town of Huntersville: (As to Chapter 143) 2009-298.

Cross References. - For present provisions relating to the State Budget Act, see Chapter 143C.

§ 143-34.10: Repealed by Session Laws 1981, c. 932, s. 1.

Editor's Note. - This Article, previously numbered Article 1.1, was renumbered as Article 1A pursuant to S.L. 1997-456, s. 27 which authorized the Revisor of Statutes to renumber or reletter sections and parts of sections having a number or letter designation that is incompatible with the General Assembly's computer database.

§ 143-34.11. Certain General Statutes provisions repealed effective July 1, 1979.

The following statutes are repealed effective July 1, 1979, (except for purposes of the winding-up period, as provided by section 5 of this act):

Chapter 87, Article 3, entitled "Tile Contractors."

Chapter 87, Article 6, entitled "Water Well Contractors."

Chapter 66, Article 9A, entitled "Private Detectives."

Chapter 93C, entitled "Watchmakers."

Chapter 74, Article 6, entitled "Mining Registration."

History

(1977, c. 712, s. 2; 1979, c. 616, s. 9; c. 629; c. 712, s. 6; c. 713, s. 9; c. 736, s. 1; c. 740, s. 1; c. 744, ss. 1-3; c. 750, s. 1; c. 780, s. 3; c. 819, s. 7; c. 834, s. 13; c. 871, s. 2; c. 872, s. 6; c. 904, s. 15.)

§§ 143-34.12 through 143-34.21: Repealed by Session Laws 1981, c. 932, s. 1.

§§ 143-34.22 through 143-34.24: Reserved for future codification purposes.

§§ 143-34.25 through 143-34.27: Expired.

Editor's Note. - This Article has expired pursuant to G.S. 143-34.25(d), which provided that the Committee would terminate and the authority granted by the Article would expire on June 30, 1983.

§§ 143-34.28 through 143-34.39: Reserved for future codification purposes.

§§ 143-34.40 through 143-34.45: Repealed by Session Laws 2006-203, s. 2, effective July 1, 2007, and applicable to the budget for the 2007-2009 biennium and each subsequent biennium thereafter.

Editor's Note. - This article, enacted as Article 1A by S.L. 1997-443, s. 34.9, was redesignated as Article 1B, and the sections in the article enacted as G.S. 143-34.8 to 143-34.8E were redesignated as G.S. 143-34.40 to 143.34.45 at the direction of the Revisor of Statutes.

Session Laws 2006-203, s. 2, provides in part: "Prosecutions for offenses committed before July 1, 2007 are not abated or affected by the act, and the statutes that would be applicable but for the act remain applicable to those prosecutions."

§§ 143-35 through 143-47: Repealed by Session Laws 1965, c. 640, s. 1.

Cross References. - For present provisions as to the State Personnel System, see G.S. 126-1 et seq.

§§ 143-47.1 through 143-47.5: Repealed by Session Laws 1965, c. 640, s. 1.

Cross References. - For present provisions as to the State Personnel System, see G.S. 126-1 et seq.

§ 143-47.6. Definitions.

As used in this Article, unless the context clearly requires otherwise:

1. "Appointing authority" means the Governor, Chief Justice of the Supreme Court, Lieutenant Governor, Speaker of the House, President pro tempore of the Senate, members of the Council of State, all heads of the executive departments of State government, the Board of Governors of The University of North Carolina, and any other person or group authorized by law to appoint to a public office.
2. "Public office" means appointive membership on any State commission, council, committee, board, including occupational licensing boards as defined in G.S. 93B-1, board of trustees, including boards of constituent institutions of The University of North Carolina and boards of community colleges operated pursuant to Chapter 115D of the General Statutes, and any other State agency created by law, where the appointee is entitled to draw subsistence, per diem compensation, or travel allowances, in whole or in part from funds deposited with the State Treasurer or any other funds subject to being audited by the State Auditor, by reason of his service in the public office; provided that "public office" does not include an office for which a regular salary is paid to the holder as an employee of the State or of one of its departments, agencies, or institutions.

History

(1979, c. 477, s. 1; 1987, c. 564, s. 27.)

§ 143-47.7. Notice and record of appointment required.

1. Within 30 days after acceptance of appointment by a person appointed to public office, the appointing authority shall file written notice of the appointment with the Governor, the Secretary of State, the Legislative Library, the State Ethics Commission, and the State Controller. For the purposes of this section, a copy of the letter from the appointing authority, a copy of the properly executed notice of appointment as set forth in subsection (c) of this section, or a copy of the properly executed Commission of Appointment shall be sufficient to be filed if the copy contains the information required in subsection (b) of this section.
2. The notice required by this Article shall contain the following information:
   1. The name and office of the appointing authority;
   2. The public office to which the appointment is made;
   3. The name and address of the appointee;
   4. The county of residence of the appointee;
   5. The citation to the law or other authority authorizing the appointment;
   6. The specific statutory qualification for the public office to which the appointment is made, if applicable;
   7. The name of the person the appointee replaces, if applicable;
   8. The date the term of the appointment begins; and
   9. The date the term of the appointment ends.
3. The following form may be used to comply with the requirements of this section:

"NOTICE OF APPOINTMENT

Notice is given that ________ is hereby appointed to the following public office: Name Public Office: ______________________________________________________________ Citation to Law or Other Authority Authorizing the Appointment: _____________________________________________________________________________ Specific Statutory Qualification for the Public Office, if Applicable: _____________________________________________________________________________ Address of the Appointee: ___________________________________________________ _____________________________________________________________________________ _____________________________________________________________________________ County of Residence of the Appointee: _______________________________________ Date Term of Appointment Begins: ____________________________________________ Date Term of Appointment Ends: ______________________________________________ Name of Person the Appointee Replaces, if applicable: _____________________________________________________________________________ ________________________ __________________________________ Date of Appointment Signature ___________________________________________________________ Office of Appointing Authority Distribution: Governor Secretary of State Legislative Library State Ethics Commission State Controller"

History

(1979, c. 477, s. 1; 1991, c. 542, s. 8; 2003-374, s. 2; 2009-549, s. 18; 2017-6, s. 3; 2017-212, s. 8.10; 2018-146, ss. 3.1(a), (b), 6.1.)

Re-recodification; Technical and Conforming Changes. - Session Laws 2017-6, s. 3, provides, in part: "The Revisor of Statutes shall recodify Chapter 138A of the General Statutes, Chapter 120C of the General Statutes, as well as Chapter 163 of the General Statutes, as amended by this act, into a new Chapter 163A of the General Statutes to be entitled 'Elections and Ethics Enforcement Act,' as enacted by Section 4 of this act. The Revisor may also recodify into the new Chapter 163A of the General Statutes other existing statutory laws relating to elections and ethics enforcement that are located elsewhere in the General Statutes as the Revisor deems appropriate." The Revisor was further authorized to make additional technical and conforming changes to catchlines, internal citations, and other references throughout the General Statutes to effectuate this recodification. Pursuant to this authority, the Revisor of Statutes substituted "Bipartisan State Board of Elections and Ethics Enforcement" for "State Ethics Commission" in subsections (a) and (c).

Session Laws 2018-146, ss. 3.1(a), (b), and 6.1, repealed Session Laws 2017-6, s. 3, and authorized the Revisor of Statutes to re-recodify Chapter 163A into Chapters 163, 138A, and 120C and to revert the changes made by the Revisor pursuant to Session Laws 2017-6, s. 3. Pursuant to this authority, the Revisor of Statutes reverted the references in subsections (a) and (c).

Editor's Note. - This section, as rewritten by Session Laws 2003-374, s. 2, effective August 31, 2003, is applicable only to appointments made after that date.

Effect of Amendments. - Session Laws 2009-549, s. 18, effective August 28, 2009, inserted "the State Ethics Commission," in the first sentence of subsection (a); and added "State Ethics Commission" in the distribution list of the "Notice of Appointment" in subsection (c).

Session Laws 2017-212, s. 8.10, effective October 8, 2017, deleted "the State Library" following "Legislative Library" in subsection (a); and deleted "State Library" in the distribution list in subsection (c).

§ 143-47.9. Subsistence, per diem compensation, and travel allowances conditioned on filing of notice.

No person who has been appointed to any public office and has accepted that appointment shall be entitled to receive subsistence, per diem compensation, or travel allowances unless and until compliance is made with the provisions of G.S. 143-47.7.

History

(1979, c. 477, s. 1.)

§§ 143-47.10 through 143-47.14: Reserved for future codification purposes.

§§ 143-47.15 through 143-47.20: Repealed by Session Laws 1989, c. 752, s. 45.

Editor's Note. - Former G.S. 143-47.16 through 143-47.20 had been reserved for future codification purposes.

§§ 143-47.21 through 143-47.24: Repealed by Session Laws 1987, c. 738, s. 41(c).

Editor's Note. - Session Laws 1987, c. 738, s. 41(b) provides: "All funds previously appropriated but not encumbered or expended by the Office of Budget and Management for student loans and scholarships pursuant to G.S. 143-47.21 through G.S. 143-47.24 as repealed by subsection (c) of this section and for administration thereof shall be transferred to The University of North Carolina to be administered by the State Education Assistance Authority, under such rules and regulations as the State Education Assistance Authority may require including all loans or scholarships repaid to the State pursuant to law. The transfer from the Office of Budget and Management to The University of North Carolina, State Education Assistance Authority, has all the elements of a Type I transfer as defined in G.S. 143A-6(a)."

§ 143-48. State policy; cooperation in promoting the use of small contractors, minority contractors, physically handicapped contractors, and women contractors; purpose; required annual reports.

1. Policy. - It is the policy of this State to encourage and promote the use of small contractors, minority contractors, physically handicapped contractors, and women contractors in State purchasing of goods and services. All State agencies, institutions and political subdivisions shall cooperate with the Department of Administration and all other State agencies, institutions and political subdivisions in efforts to encourage the use of small contractors, minority contractors, physically handicapped contractors, and women contractors in achieving the purpose of this Article, which is to provide for the effective and economical acquisition, management and disposition of goods and services by and through the Department of Administration.
2. Reporting. - Every governmental entity required by statute to use the services of the Department of Administration in the purchase of goods and services, every local school administrative unit, and every private, nonprofit corporation other than an institution of higher education or a hospital that receives an appropriation of five hundred thousand dollars ($500,000) or more during a fiscal year from the General Assembly shall report to the department of Administration annually on what percentage of its contract purchases of goods and services, through term contracts and open-market contracts, were from minority-owned businesses, what percentage from female-owned businesses, what percentage from disabled-owned businesses, what percentage from disabled business enterprises and what percentage from nonprofit work centers for the blind and the severely disabled. The same governmental entities shall include in their reports what percentages of the contract bids for such purchases were from such businesses. The Department of Administration shall provide instructions to the reporting entities concerning the manner of reporting and the definitions of the businesses referred to in this act, provided that, for the purposes of this act:
   1. Except as provided in subdivision (1a) of this subsection, a business in one of the categories above means one:
      1. In which at least fifty-one percent (51%) of the business, or of the stock in the case of a corporation, is owned by one or more persons in the category; and
      2. Of which the management and daily business operations are controlled by one or more persons in the category who own it.
   2. A "disabled business enterprise" means a nonprofit entity whose main purpose is to provide ongoing habilitation, rehabilitation, independent living, and competitive employment for persons who are handicapped through supported employment sites or business operated to provide training and employment and competitive wages.
   3. A "nonprofit work center for the blind and the severely disabled" means an agency:
      1. Organized under the laws of the United States or this State, operated in the interest of the blind and the severely disabled, the net income of which agency does not inure in whole or in part to the benefit of any shareholder or other individual;
      2. In compliance with any applicable health and safety standard prescribed by the United States Secretary of Labor; and
      3. In the production of all commodities or provision of services, employs during the current fiscal year severely handicapped individuals for (i) a minimum of seventy-five percent (75%) of the hours of direct labor required for the production of commodities or provision of services, or (ii) in accordance with the percentage of direct labor required under the terms and conditions of Public Law 92-28 (41 U.S.C. § 46, et seq.) for the production of commodities or provision of services, whichever is less.
   4. A female or a disabled person is not a minority, unless the female or disabled person is also a member of one of the minority groups described in G.S. 143-128(2)a. through d.
   5. A disabled person means a person with a handicapping condition as defined in G.S. 168-1 or G.S. 168A-3.
3. The Department of Administration shall compile information on small and medium-sized business participation in State contracts subject to this Article and report the information as provided in subsection (d) of this section. The report shall analyze (i) contract awards by business size category, (ii) historical trends in small and medium-sized business participation in these contracts, and (iii) to the extent feasible, participation by small and medium-sized businesses in the State procurement process as dealers, service companies, and other indirect forms of participation. The Department may require reports on contracting by business size in the same manner as reports are required under subsection (b) of this section.
4. The Department of Administration shall collect and compile the data described in this section and report it annually to the General Assembly.
5. Repealed by Session Laws 2007-392, s. 1, effective October 1, 2007.
6. In seeking contracts with the State, a disabled business enterprise must provide assurances to the Secretary of Administration that the payments that would be received from the State under these contracts are directed to the training and employment of and payment of competitive wages to handicapped employees.

History

(1931, c. 261, s. 1; c. 396; 1957, c. 269, s. 3; 1971, c. 587, s. 1; 1975, c. 879, s. 46; 1983, c. 692, s. 2; 1989 (Reg. Sess., 1990), c. 1051, s. 1; 1993, c. 252, s. 1; 1995, c. 265, s. 2; 1999-20, s. 1; 1999-407, s. 1; 2003-147, s. 6; 2004-203, s. 72(b); 2005-270, s. 1; 2007-392, s. 1.)

Local Modification. - (As to Chapter 143, Article 3) Piedmont Triangle International Authority: 1998-55, s. 11; 2002-146, 2.8 (expires January 1, 2010).

State Government Reorganization. - The Purchase and Contract Division remains in the Department of Administration under G.S. 143B-368, enacted by Session Laws 1975, c. 879, which repealed former G.S. 143A-82.

Certification as E-Procurement Compliant. - Session Laws 2003-147, s. 10(a) through (e), contains provisions encouraging local school administrative units to use the NC E-procurement Service for their purchasing requirements.

DOA Allocate or Lease Office Space for Bipartisan State Board of Elections and Ethics Enforcement. - Session Laws 2017-57, s. 31.4(a), (b), provides: "(a) Not later than August 1, 2017, the Department of Administration shall allocate office space in a State-owned or leased facility or enter into a lease for office space in a non-State-owned facility to be used by the Bipartisan State Board of Elections and Ethics Enforcement (hereinafter "State Board"). The square footage of the office space required by this section shall be not less than the total square footage of the facilities occupied on the date this act becomes law by the State agencies that were consolidated in S.L. 2017-6 to establish the State Board (being the State Board of Elections, State Ethics Commission, and Secretary of State personnel identified in Section 20 of S.L. 2017-6). Not later than September 1, 2017, the State Board shall house all personnel from the State agencies described in this section in the same office facility. If the establishment of the State Board as provided in S.L. 2017-6 is temporarily or permanently enjoined by a court of law, the State agencies and personnel described in this section may remain housed in the office facility acquired as provided by this section. The Department of Administration shall make reasonable efforts to mitigate any losses caused by vacancies in facilities that result from the relocation of personnel as provided for in this section.

"(b) In determining how to allocate or lease office space as required by subsection (a) of this section, the Department of Administration shall consider the requirements of the State Board, the availability of property already owned by the State or by any State agency which might meet the requirements of the State Board, and the availability of other property which might meet the requirements of the State Board. Neither the provisions of Article 3 of Chapter 143 of the General Statutes, nor Part I of Article 36 of Chapter 143 of the General Statutes, nor Article 6 of Subchapter II of Chapter 146 of the General Statutes, nor any other contrary provision of law shall apply to a lease authorized by this section."

Editor's Note. - Session Laws 2003-284, s. 8.7, provides: "Notwithstanding any other provision of law, all fees collected by the Hosiery Technology Center of Catawba Valley Community College for the testing of hosiery products shall be retained by the Center and used for the operations of the Center. Purchases made by the Center using these funds are not subject to the provisions of Article 3 of Chapter 143 of the General Statutes." For similar provision, see Session Laws 2002-126, s. 8.10.

Session Laws 2003-284, s. 1.2, provides: "This act shall be known as the 'Current Operations and Capital Improvements Appropriations Act of 2003.'"

Session Laws 2003-284, s. 49.3, provides: "Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2003-2005 fiscal biennium, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2003-2005 fiscal biennium."

Session Laws 2003-284, s. 49.5 is a severability clause.

Session Laws 2003-435, 1st Ex. Sess., s. 1.2(c), effective December 16, 2003, provides: "Site development funded by money appropriated under this section is not subject to Article 8 of Chapter 143 of the General Statutes (public contracts) or Article 3 of Chapter 143 of the General Statutes (purchases and contracts), except where public funds are expended the provisions of G.S. 143-48 and G.S. 143-128.2 shall apply. Actions involving expenditures of public moneys or use of public lands for projects and programs involved in site development funded by money appropriated under this section are exempt from the requirements of Article 1 of Chapter 113A of the General Statutes. This exemption does not apply to an ordinance adopted under G.S. 113A-8."

Session Laws 2008-201, s. 1, provides: "The North Carolina Department of Administration, Division of Purchase and Contract, is directed to make the following changes to its Request for Proposal criteria for a statewide tire retread contract:

"(1) Require that the bids remain closed until a designated and advertised bid-opening day in which the bids are opened, announced, and recorded in public. The bids shall then be shown and made available to the public.

"(2) Require that the cost of the tire retread include spot repairs and that there no longer be a separate charge for a spot repair.

"(3) Include in the contract that all casings receive a state-of-the-art inspection with the use of shearography, ultrasound, electrostatic discharge, high pressure testing, or other industry standard testing methodology.

"(4) Include a threshold for the number of times a casing may be retreaded.

"(5) Include a threshold for the age of a casing that may be retreaded.

"(6) Include the number of nail hole repairs that are permissible for a casing to be retreaded.

"(7) Provide assurance that a particular fleet will receive its own casings back after retread completed.

"(8) Set minimum tread depths per category or application of the retread tire.

"(9) Consider a multiaward contract structure that includes several vendors; the Office of Purchase and Contract will take into account geographic location, proximity of vendor to customer, and the needs of the users when creating a multiaward contract.

"(10) Provide for any method of tire retreading to be bid separately."

Session Laws 2009-451, s. 9.14(b), provides: "With respect to the demonstration wind turbines and necessary support facilities authorized by subsection (a) of this section, the facilities authorized under this act shall be constructed in accordance with the provisions of general law applicable to the construction of State facilities, except that the State Property Office shall expedite and grant all easements and use agreements required for construction of the facilities without payment of any fee, royalty, or other cost. Notwithstanding any other provision of law, construction of the facilities authorized by this section shall be exempt from the following statutes and rules implementing those statutes: G.S. 143-48 through 143-64, 143-128, 143-129, 143-132, 113A-1 through 113A-10, 113A-50 through 113A-66, and 113A-116 through 113A-128. If Senate Bill 1068, 2009 Regular Session, becomes law, the provisions of Part 12 of Article 21 of Chapter 143 of the General Statutes as enacted by that act shall not apply to the facilities authorized by this section. With respect to any other environmental permits required for construction of the facilities, the Department of Environment and Natural Resources is directed to expedite permitting of the project to the extent allowed by law and shall waive any application fees that would be otherwise applicable to applications for permits required for the facilities and, where possible under applicable law, issue all permits within 40 days of receipt of a complete application." Senate Bill 1068, 2009 Regular Session, did not become law.

Session Laws 2009-451, s. 1.2, provides: "This act shall be known as the 'Current Operations and Capital Improvements Appropriations Act of 2009'."

Session Laws 2009-451, s. 28.3, provides: "Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2009-2011 fiscal biennium, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2009-2011 fiscal biennium."

Session Laws 2009-451, s. 28.5, is a severability clause.

Session Laws 2010-31, s. 8.8(b), provides: "Notwithstanding any other provision of law, all fees collected by the Manufacturing Solutions Center of Catawba Valley Community College for the testing of products shall be retained by the Center and used for the operations of the Center. Purchases made by the Center using these funds are not subject to the provisions of Article 3 of Chapter 143 of the General Statutes."

Session Laws 2010-31, s. 9.10(a) and (b), provides: "(a) The General Assembly finds that strengthening research and development efforts on renewable energy sources is critical to North Carolina's environment and economy, and that recent events resulting from the British Petroleum oil spill amplify the need for North Carolina's innovators and scientists to enhance their efforts to develop sustainable energy sources and technologies that do not threaten the health and well-being of the State's waters, sensitive lands, and residents. In order to provide opportunities for research into tidal, wave, and other ocean-based sources of alternative energy, the University of North Carolina Coastal Studies Institute shall form a consortium with the Colleges of Engineering at North Carolina State University, North Carolina Agricultural and Technical State University, and the University of North Carolina at Charlotte to study the capture of energy from ocean waves. The Coastal Studies Institute shall be designated the lead agency in coordinating these efforts. Funding appropriated by this act shall be used by university scientists to conceptualize, design, construct, operate, and market new and innovative technologies designed to harness and maximize the energy of the ocean in order to provide substantial power generation for the State. Funding may be used to leverage federal or private research funding for this purpose, but may not be used to purchase and utilize technology that has already been developed by others unless that technology is a critical component to North Carolina's research efforts. Wave energy technologies developed and used for this research may be attached to or staged from an existing State-owned structure located in the ocean waters of the State, and data generated by these technologies shall be available at this structure for public education and awareness. It is the intent of the General Assembly that North Carolina become the focal point for marine-based ocean research collaborations involving the nation's public and private universities.

"(b) With respect to the demonstration wave energy facility and necessary support facilities authorized by subsection (a) of this section, the facilities authorized under this act shall be constructed in accordance with the provisions of general law applicable to the construction of State facilities, except that the State Property Office shall expedite and grant all easements and use agreements required for construction of the facilities without payment of any fee, royalty, or other cost. Notwithstanding any other provision of law, construction of the facilities authorized by this section shall be exempt from the following statutes and rules implementing those statutes: G.S. 143-48 through 143-64, 143-128, 143-129, 143-132, 113A-1 through 113A-10, 113A-50 through 113A-66, and 113A-116 through 113A-128. With respect to any other environmental permits required for construction of the facilities, the Department of Environment and Natural Resources is directed to expedite permitting of the project to the extent allowed by law and shall waive any application fees that would be otherwise applicable to applications for permits required for the facilities and, where possible under applicable law, issue all permits within 40 days of receipt of a complete application."

Session Laws 2010-31, s. 1.1, provides: "This act shall be known as the 'Current Operations and Capital Improvements Appropriations Act of 2010'."

Session Laws 2010-31, s. 32.3, provides: "Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2010-2011 fiscal year, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2010-2011 fiscal year."

Session Laws 2010-31, s. 32.6, is a severability clause.

Session Laws 2010-147, ss. 8.1 and 8.2, provide: "8.1. The General Assembly makes the following findings:

"(1) A multiple award schedule contract is one that allows multiple vendors to be awarded a State contract for goods or services by providing their total catalogue for lines of equipment and attachments to eligible purchasers, including State agencies, departments, institutions, public school districts, political subdivisions, and higher education facilities.

"(2) A multiple award schedule contract allows multiple vendors to compete and be awarded a contract based upon the value of their products or services.

"(3) A properly administered multiple award schedule contract allows the State to evaluate vendors based on a variety of factors, including discounts, total life cycle costs, service, warranty, distribution channel, and past vendor performance.

"(4) Under appropriate circumstances, multiple award schedule contracts result in competitive pricing, transparency, administrative savings, expedited procurement, and flexibility for State purchasers.

"8.2. The North Carolina Department of Administration is strongly encouraged to consider the use of multiple award schedule contracts when issuing requests for proposals for State term contracts."

Session Laws 2015-241, s. 14.5(b), provides: "The General Assembly finds that there is a need for timely initiation of projects authorized by this section during the biennium to expedite mitigation of impaired waters of the State. Therefore, any contract, contract extension, lease, purchase, or other agreement entered into under this section shall not be subject to the requirements of Article 3, 3D, or 8 of Chapter 143 of the General Statutes in order to expedite deployment. Session Laws 2015-241, s. 14.5(a), (c), and (d) provided for funding to continue the Jordan Lake Nutrient Mitigation Demonstration Project established in Session Laws 2013-360, s. 14.3A; for an effective date delay for modification of existing or proposed rules related to basinwide nutrient management and mitigation of water quality of impaired water bodes; and for a study [due no later than April 1, 2016] of in situ strategies beyond traditional watershed controls that have the potential to mitigate water quality impairments resulting from water quality variables that impair or have the potential to impair water bodies of the State." However, Session Laws 2015-241, s. 14.5(a) and (c) were repealed by Session Laws 2016-94, s. 14.13(b) and further provided that: "the Department shall terminate the demonstration project authorized by that section. Any funds allocated under subsection (a) of Section 14.5 of S.L. 2015-241 that are unspent and unencumbered on the effective date of this act shall revert to the Clean Water Management Trust Fund." Session Laws 2016-94, s. 14.13(j) provides: "Subsection (b) of this section becomes effective on the earlier of July 1, 2016, or the date of termination of a contract related to in situ water quality remediation strategies that was previously extended pursuant to Section 14.5 of S.L. 2015-241."

Session Laws 2015-241, s. 1.1, provides: "This act shall be known as `The Current Operations and Capital Improvements Appropriations Act of 2015.'"

Session Laws 2015-241, s. 33.4, provides: "Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2015-2017 fiscal biennium, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2015-2017 fiscal biennium."

Session Laws 2015-241, s. 33.6, is a severability clause.

Session Laws 2017-57, s. 1.1, provides: "This act shall be known as the 'Current Operations Appropriations Act of 2017.'"

Session Laws 2017-57, s. 39.4, provides: "Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2017-2019 fiscal biennium, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2017-2019 fiscal biennium."

Session Laws 2017-57, s. 39.6, is a severability clause.

Session Laws 2017-113, s. 3, provides: "The facility authorized under this act shall be constructed in accordance with the provisions of general law applicable to the construction of State facilities, except as otherwise provided in this section. Notwithstanding any other provision of law, construction of the facilities authorized by this act shall be exempt from the following statutes and rules implementing those statutes: Articles 3 and 8 of Chapter 143, Articles 1 and 4 of Chapter 113A. Notwithstanding G.S. 146-11 and Article 16 of Chapter 146 of the General Statutes, the approval of the Council of State shall not be required for the granting of easements for the facility authorized under this act. With respect to any other environmental permits required for construction of the facility, the Department of Environmental Quality is directed to expedite permitting of the project to the extent allowed by law and shall waive any application fees that would be otherwise applicable to applications for permits required for the facilities and, where possible under applicable law, issue all permits within 40 days of receipt of a complete application."

Session Laws 2020-17, s. 7(b), provides: "Notwithstanding Article 3 of Chapter 143 of the General Statutes, the State Board of Elections is not required to comply with initial purchase and contract requirements for establishing or securing the Internet Web site for online requests for absentee ballots as required by subsection (a) of this section. This exemption expires December 31, 2020."

Session Laws 2021-4, s. 3(a), (b), provides: "(a) Within federal funds available, the Department of Public Instruction shall contract with Duke University for the ABC Science Collaborative of the School of Medicine at Duke University (ABC Collaborative) to provide data collation, analysis, and interpretation of COVID-19-related metrics of student, teacher, and staff safety for local school administrative units providing in-person instruction under Plan A for middle and high school students. The contract shall allocate five hundred thousand dollars ($500,000) to Duke University for these services. The contract shall require the ABC Collaborative to engage in close monitoring of infection data through assessing within-school transmission rates based on contact tracing and confirmatory testing with partner local school administrative units to evaluate the fidelity and adherence to mitigation strategies which enable in-person instruction, as provided in the StrongSchoolsNC Public Health Toolkit (K-12). The contract shall require the ABC Collaborative to request only de-identified, aggregate data from partnering units. The contract shall require the ABC Collaborative to report on its findings to the Joint Legislative Education Oversight Committee, the Senate Education/Higher Education Committee, the House Education K-12 Committee, the Department of Public Instruction, the State Board of Education, the Department of Health and Human Services, and the Office of the Governor as follows:

"(1) Interim analysis. - An interim analysis of aggregate data for all partnering units shall be submitted no later than the last calendar day of March, April, and May of 2021.

'(2) Final analysis. - A final analysis of both aggregate and individual partnering local school administrative unit data shall be submitted no later than June 30, 2021.

"(b) The Department of Public Instruction shall execute the contract with Duke University required by this act no later than the fifteenth day after this act becomes law, and shall disburse the funds allocated by the contract to Duke University within five days of execution of the contract. The contract the Department of Public Instruction enters into shall terminate no later than September 15, 2021. The contract required by this act shall not be subject to Article 3 or Article 8 of Chapter 143 of the General Statutes, or any other provision of law relating to initial purchase and contract requirements in completing the contract."

Effect of Amendments. - Session Laws 2005-270, s. 1, effective August 12, 2005, added subsection (d1).

Session Laws 2007-392, s. 1, effective October 1, 2007, deleted subsection (d1), relating to the adoption of rules and regulations for certification of a business under this section as a historically underutilized business, regarding the creation and maintenance of a database of the businesses certified as historically underutilized businesses.

Legal Periodicals. - For comment, "Employment and Diversity-Based Visas: Why Birthright Citizenship Is Not All That Is Wrong with America's Immigration System," see 39 Campbell L. Rev. 413 (2017).

Opinions of Attorney General

Contracts with Experts, Consultants, or Other Professional Advisors to Review Conversion Plans Are Exempt from Articles 3 and 3C of Chapter 143. - The Commissioner of Insurance has statutory authority to contract with experts, consultants, or other professional advisors to review conversion plans without adhering to the requirements set forth in Articles 3 and 3C of Chapter 143, G.S. 143-48 et seq. and G.S. 143-64.20 et seq.; the only statutory requirement that must be met by the Commissioner is that the costs for the personal professional service contracts must not exceed an amount that is reasonable and appropriate for the review of the plan. See opinion of Attorney General to Peter A. Kolbe, General Counsel, North Carolina Department of Insurance, 2001 N.C. AG LEXIS 28 (8/24/01).

§ 143-48.1. Medicaid program exemption.

1. This Article shall not apply to any capitation arrangement or prepaid health service arrangement implemented or administered by the North Carolina Department of Health and Human Services or its delegates pursuant to the Medicaid waiver provisions of 42 U.S.C. § 1396n, or to the Medicaid program authorizations under Chapter 108A of the General Statutes.
2. As used in this section, the following definitions apply:
   1. "Capitation arrangement" means an agreement whereby the Department of Health and Human Services pays a periodic per enrollee fee to a contract entity that provides medical services to Medicaid recipients during their enrollment period.
   2. "Prepaid health services" means services provided to Medicaid recipients that are paid on the basis of a prepaid capitation fee, pursuant to an agreement between the Department of Health and Human Services and a contract entity.
3. The Department of Health and Human Services shall: (i) submit all proposed contracts for a capitation arrangement or prepaid health services, as defined by this section, that exceed one million dollars ($1,000,000) to the Attorney General or the Attorney General's designee for review as provided in G.S. 114-8.3; and (ii) include in all agreements or contracts to be awarded by the Department under this section a standard clause which provides that the State Auditor and internal auditors of the Department may audit the records of the contractor during and after the term of the contract to verify accounts and data affecting fees and performance. The Department shall not award a cost plus percentage of cost agreement or contract for any purpose.

History

(1993, c. 529, s. 7.4; 1997-443, s. 11A.118(a); 2010-194, s. 20.2; 2011-326, s. 15(v).)

Effect of Amendments. - Session Laws 2011-326, s. 15(v), effective June 27, 2011, in the first sentence of subsection (c), deleted "statewide and agency term" following "(i) submit all proposed" and inserted "and after" near the end.

§ 143-48.2. Procurement program for nonprofit work centers for the blind and the severely disabled.

1. An agency subject to the provisions of this Article for the procurement of goods may purchase goods directly from a nonprofit work center for the blind and severely disabled, subject to the following provisions:
   1. The purchase may not exceed the applicable expenditure benchmark under G.S. 143-53.1.
   2. The goods must not be available under a State requirements contract.
   3. The goods must be of suitable price and quality, as determined by the agency.
2. An agency subject to the provisions of this Article for the procurement of services may purchase services directly from a nonprofit work center for the blind and severely disabled, subject to the following provisions:
   1. The services must not be available under a State requirements contract.
   2. The services must be of suitable price and quality, as determined by the agency.
3. The provisions of G.S. 143-52 shall not apply to purchases made pursuant to this section. However, nothing in this section shall prohibit a nonprofit work center for the blind and severely disabled from submitting bids or making offers for contracts under G.S. 143-52.
4. For the purpose of this subsection, a "nonprofit work center for the blind and severely disabled" has the same meaning as under G.S. 143-48.

History

(1995, c. 265, ss. 3, 5; 1999-20, s. 1.)

§ 143-48.3. Electronic procurement.

1. The Department of Administration shall develop and maintain electronic or digital standards for procurement. The Department of Administration shall consult with the Office of the State Controller, the Department of Information Technology, the Department of State Auditor, the Department of State Treasurer, The University of North Carolina System Office, the Community Colleges System Office, and the Department of Public Instruction.
2. The Department of Administration shall comply with the State government-wide technical architecture for information technology, as required by the State Chief Information Officer.
3. The Department of Administration, in conjunction with the Office of the State Controller and the Department of Information Technology may, upon request, provide to all State agencies, universities, and community colleges, training in the use of the electronic procurement system.
4. The Department of Administration shall utilize the Department of Information Technology as an Application Service Provider for an electronic procurement system. The Department of Information Technology shall operate this electronic procurement system, through State ownership or commercial leasing, in accordance with the requirements and operating standards developed by the Department of Administration and the financial reporting and accounting procedures of the Office of the State Controller.
5. This section does not otherwise modify existing law relating to procurement between The University of North Carolina, UNC Health Care, community colleges, and the Department of Administration.
6. The Board of Governors of The University of North Carolina shall exempt North Carolina State University and The University of North Carolina at Chapel Hill from the electronic procurement system authorized by this Article until May 1, 2003. Each exemption shall be subject to the Board of Governors' annual review and reconsideration. Exempted constituent institutions shall continue working with the North Carolina E-Procurement Service as that system evolves and shall ensure that their proposed procurement systems are compatible with the North Carolina E-Procurement Service so that they may take advantage of this service to the greatest degree possible. Before an exempted institution expands any electronic procurement system, that institution shall consult with the Joint Legislative Commission on Governmental Operations and the Joint Legislative Oversight Committee on Information Technology. By May 1, 2003, the General Assembly shall evaluate the efficacy of the State's electronic procurement system and the inclusion and participation of entities in the system.
7. Any State entity or community college operating a functional electronic procurement system established prior to September 1, 2001, may until May 1, 2003, continue to operate that system independently or may opt into the North Carolina E-Procurement Service. Each entity subject to this section shall notify the Department of Information Technology by January 1 of each year of its intent to participate in the North Carolina E-Procurement Service.

History

(2000-67, s. 7.8; 2000-140, ss. 95(a), 95(b); 2001-424, s. 15.6(b); 2001-513, s. 28(a); 2002-126, ss. 27.1(a), 27.1(b), 27.1(c); 2003-147, s. 7; 2004-129, ss. 40, 40A, 41; 2004-203, s. 72(b); 2015-241, s. 7A.4(o); 2018-12, s. 15.)

Certification as E-Procurement Compliant. - Session Laws 2003-147, s. 10(a) through (e) contains provisions encouraging local school administrative units to use the NC E-procurement Service for their purchasing requirements.

Editor's Note. - Session Laws 2000-67, s. 7.8, enacted this section as G.S. 143B-472.70, in a new Part 17, Electronic Procurement in Government, in Chapter 143B, Article 10. Session Laws 2000-140, s. 95(a), recodified the section as G.S. 143-48.3. Session Laws 2000-140, s. 95(b), repealed Part 17 of Chapter 143B, Article 10.

Session Laws 2001-424, s. 1.2, provides: "This act shall be known as the 'Current Operations and Capital Improvements Appropriations Act of 2001'."

Session Laws 2001-424, s. 15.6(c), provides: "The Board of Governors of The University of North Carolina shall take appropriate action to encourage the effective utilization of the North Carolina Electronic Procurement Service by the constituent institutions. By April 1, 2002, and annually thereafter, the Department of Administration and the Office of Information Technology Services, in conjunction with the UNC General Administration, shall review the effect of the exemptions granted under subsection (b) of this section [s. 15.6(b) of Session Laws 2001-424] upon the North Carolina Electronic Procurement Service and shall report their findings to the Joint Select Committee on Information Technology and the Joint Legislative Commission on Governmental Operations."

Session Laws 2001-424, s. 31.11(b), provides: "In the event that G.S. 116-40.22 as enacted by this section and Section 15.6 of this act [ss. 31.62 and 15.6 of Session Laws 2001-424] conflict, then the provisions of section 15.6 control."

Session Laws 2001-424, s. 36.3, provides: "Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2001-2003 fiscal biennium, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2001-2003 fiscal biennium."

Session Laws 2001-424, s. 36.5, is a severability clause.

Session Laws 2003-147, s. 11, provides: "Nothing in this act shall be construed to limit the authority of the Department of Administration to develop, implement, and monitor a pilot program for reverse auctions for public school systems as provided in Section 3 of Chapter 107 of the 2002 Session Laws."

Session Laws 2003-147, s. 12, as amended by Session Laws 2004-203, s. 72(b), provides that the amendment to this section by s. 7 of the act becomes effective for a local school administrative unit when the unit is certified by the Department of Public Instruction as being E-Procurement compliant, as provided in s. 10 of the act, or April 1, 2004, whichever occurs first.

For provisions pertaining to Statewide Electronic Portal reporting requirement and the implementation and operation of the portal, see G.S. 147-33.87A and the notes thereto.

Session Laws 2011-145, s. 6A.10, as amended by Session Laws 2011-391, s. 12(b), which contained similar provisions regarding implementation of a state electronic portal, was repealed by Session Laws 2012-142, s. 6A.12(j).

Session Laws 2012-142, s. 1.2, provides: "This act shall be known as 'The Current Operations and Capital Improvements Appropriations Act of 2012.'"

Session Laws 2012-142, s. 27.4, provides: "Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2012-2013 fiscal year, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2012-2013 fiscal year."

Session Laws 2012-142, s. 27.7 is a severability clause.

Effect of Amendments. - Session Laws 2004-129, ss. 40, 40A, and 41, effective July 1, 2004, substituted "State Chief Information Officer" for "Information Resources Management Commission" in subsection (a1); substituted "Legislative Oversight" for "Select" in subsection (e); in subsection (f), substituted "Office of Information Technology Services" for "Information Resources Management Commission," and substituted "by January 1 of each year" for "by January 1, 2002, and annually therefter"; and made a minor punctuation change.

Session Laws 2015-241, s.7A.4(o), effective September 18, 2015, substituted "Department of Information Technology" for "Office of Information Technology Services" throughout the section; and deleted "(ITS)" preceding "the Department of State Auditor" in the second sentence of subsection (a).

Session Laws 2018-12, s. 15, effective July 1, 2018, substituted "System Office" for "General Administration" in subsection (a).

§ 143-48.4. Statewide uniform certification of historically underutilized businesses.

1. In addition to the powers and duties provided in G.S. 143-49, the Secretary of Administration shall have the power, authority, and duty to:
   1. Develop and administer a statewide uniform program for: (i) the certification of a historically underutilized business, as defined in G.S. 143-128.4, for use by State departments, agencies, and institutions, and political subdivisions of the State; and (ii) the creation and maintenance of a database of the businesses certified as historically underutilized businesses.
   2. Adopt rules and procedures for statewide uniform certification of historically underutilized businesses.
   3. Provide for the certification of all businesses designated as historically underutilized businesses to be used by State departments, agencies, and institutions, and political subdivisions of the State.
2. The Secretary of Administration shall seek input from State departments, agencies, and institutions, political subdivisions of the State, and any other entity deemed appropriate to determine the qualifications and criteria for statewide uniform certification of historically underutilized businesses.
3. Only businesses certified in accordance with this section shall be considered by State departments, agencies, and institutions, and political subdivisions of the State as historically underutilized businesses for minority business participation purposes under this Chapter.

History

(2007-392, s. 2; 2009-243, s. 2.)

Editor's Note. - Session Laws 2007-392, s. 5 provides: "Except as otherwise provided in this section, this act becomes effective October 1, 2007. The Secretary of Administration shall develop a statewide uniform program and criteria for statewide uniform certification of historically underutilized businesses as provided in G.S. 143-48.4(a)(1) and (2), as enacted by Section 2 of this act, and G.S. 143-128.4(c)(1) and (2), as enacted by Section 4 of this act, no later than March 31, 2008. G.S. 143-48.4(c), as enacted by Section 2 of this act, and G.S. 143-128.4(e), as enacted by Section 4 of this act, become effective July 1, 2009."

Effect of Amendments. - Session Laws 2009-243, s. 2, effective June 30, 2009, rewrote subsection (c).

§ 143-48.5. Contractors must use E-Verify.

No contract subject to the provisions of this Article may be entered into unless the contractor and the contractor's subcontractors comply with the requirements of Article 2 of Chapter 64 of the General Statutes.

History

(2013-418, s. 2(d).)

Cross References. - As to use of E-Verify by contractors in contracts with county government entities, see G.S. 153A-449.

As to use of E-Verify by contractors in contracts with city government entities, see G.S. 160A-20.1.

Editor's Note. - Session Laws 2013-418, in its preamble, provides: "Whereas, the North Carolina General Assembly recognizes that the issue of immigration is the responsibility of the federal government; and

"Whereas, the federal government has failed to address the need for enforcement of existing immigration laws or to act decisively to correct, amend, and reform existing immigration procedures and policies; and

"Whereas, federal courts have consistently upheld the authority of the federal government to restrict the efforts of states to uphold and enforce federal immigration laws in order to protect their citizens and their economies; and

"Whereas, the federal government has endowed illegally present aliens with certain entitlements to be provided by the various states via unfunded mandates; and

"Whereas, those unfunded mandates and the failure to address illegal immigration places an unwarranted strain on our State's law enforcement agencies, educational institutions, and social safety nets and undermines our trust in the rule of law; and

"Whereas, the General Assembly of North Carolina recognizes its responsibility to protect and defend the citizens and the economy of the State of North Carolina; and

"Whereas, North Carolina recognizes that the greatness of this State is the result of appreciating, incorporating, and welcoming the vast diversity of immigrants who lawfully assimilate into the culture and fabric that is North Carolina; and

"Whereas, we do now encourage the North Carolina congressional delegation to exert the strongest effort possible to enact appropriate federal legislation to secure our nation's borders, uphold existing immigration laws, and reform the procedures and policies regarding the immigration process in order to facilitate an even and orderly process for those wishing to immigrate to our country; and

"Whereas, we encourage the President to work in a dedicated and cooperative fashion with Congress to restore dignity and transparency to the immigration process; and

"Whereas, the wealth, beauty, and strength of North Carolina rests not only with her natural attributes of mountains, beaches, and abundant resources but in the character of her people and their ability to address problems and challenges before them with an objective resolve tempered with a sense of fairness and consideration for all people; Now, therefore,"

§ 143-48.6. Personal services contracts subject to Article.

1. Requirement. - Notwithstanding any other provision of law, personal services contracts for executive branch agencies shall be subject to the same requirements and procedures as service contracts.
2. Personal Services Contract Defined. - For purposes of this section, the term "personal services contract" means a contract for services provided by a professional individual as an independent contractor on a temporary or occasional basis, but does not include, and nothing in this Article shall apply to, the engagement of experts or expert witnesses who are to be involved in the planning, prosecution, or defense of any litigation, by the Department of Justice, the Governor, State agencies, or institutions.
3. Rules Required. - The Department of Administration shall adopt rules consistent with this section.

History

(2015-241, s. 26.2(a); 2015-264, s. 74(a).)

Editor's Note. - Session Laws 2015-241, s. 26.2(c), provides: "Personal services contracts and information technology personal services contracts in effect on the effective date of this act shall be allowed to expire in accordance with the terms of the contract. A personal services contract or an information technology personal services contract that can be terminated at any time shall be reviewed within 60 days of the effective date of this act and shall only be continued if the contract complies with the requirements of G.S. 143-48.6 and G.S. 143B-1334.1 [now 143B-1362], as enacted by subsections (a) and (b) of this section, respectively. A personal services contract or information technology personal services contract entered into after the effective date of this act shall comply with the requirements of G.S. 143-48.6 or G.S. 143B-1334.1 [now 143B-1362], as applicable."

Session Laws 2015-241, s. 33.7, made this section effective July 1, 2015.

Session Laws 2015-241, s. 1.1, provides: "This act shall be known as 'The Current Operations and Capital Improvements Appropriations Act of 2015.'"

Session Laws 2015-241, s. 33.4, provides: "Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2015-2017 fiscal biennium, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2015-2017 fiscal biennium."

Session Laws 2015-241, s. 33.6, is a severability clause.

Effect of Amendments. - Session Laws 2015-264, s. 74(a), effective July 1, 2015, added the language following "occasional basis" in subsection (b).

§ 143-49. Powers and duties of Secretary.

The Secretary of Administration has the power and authority, and it is the Secretary's duty, subject to the provisions of this Article:

1. To canvass sources of supply, including sources of goods with recycled content, and to purchase or to contract for the purchase, lease and lease-purchase of all goods required by the State government, or any of its departments, institutions or agencies under competitive bidding or other suitable means authorized by the Secretary including, without limitation, negotiations, reverse auctions, a best value procurement method such as that defined in G.S. 143-135.9(a)(1), and the solicitation, offer, and acceptance of electronic bids. For purposes of this Article, the term "goods" includes, without limitation, all commodities, supplies, materials, equipment, and other tangible personal property.
2. To establish and enforce specifications which shall apply to all goods and services to be purchased or leased for the use of the State government or any of its departments, institutions or agencies.
3. To purchase or to contract for, by sealed, competitive bidding or other suitable means authorized by the Secretary including, without limitation, negotiations, reverse auctions, a best value procurement method such as that defined in G.S. 143-135.9(a)(1), and the solicitation, offer, and acceptance of electronic bids, all services of the State government, or any of its departments, institutions, or agencies; or to authorize any department, institution or agency to purchase or contract for such services.
4. To notify the Attorney General of pending contracts for contractual services exceeding a cost of five million dollars ($5,000,000) and that are not otherwise excepted by this subdivision. Upon notification, the Attorney General shall assign a representative from within the office of the Attorney General, the Contract Management Section of the Division of Purchase and Contract, Department of Administration, or other qualified counsel to assist in negotiation for the award of the contract. It is the duty of the representative to assist and advise in obtaining the most favorable contract for the State, to evaluate all proposals available from prospective contractors for that purpose, to interpret proposed contract terms and to advise the Secretary or his representatives of the liabilities of the State and validity of the contract to be awarded. An attorney from within the office of the Attorney General shall review all contracts and drafts of contracts, and the office shall retain copies for a period of three years following the termination of the contracts. The term "contractual services" as used in this subsection and G.S. 143-52.2 means work performed by an independent contractor requiring specialized knowledge, experience, expertise or similar capabilities wherein the service rendered does not consist primarily of acquisition by this State of equipment or materials and the rental of equipment, materials and supplies. This subdivision does not apply to contracts entered into or to be entered into as a result of a competitive bidding process. In order to be valid, any contract for services reviewed pursuant to this subdivision must include the signature and title of the attorney designated from within the office of the Attorney General to review the contract. If the contract commences without the required signature, the State has the right to terminate the contract, and the other party or parties to the contract shall only be entitled to the value of all services provided to the State prior to the termination. The Secretary is not required to notify the Attorney General for the appointment of a representative for any contracts for contractual services to be entered into by the constituent institutions of The University of North Carolina pursuant to G.S. 114-8.3(b), or for contracts to be entered into by the Department of Treasurer pursuant to G.S. 114-8.3(b1), unless requested to do so by the General Counsel of The University of North Carolina or the General Counsel of the Department of State Treasurer, respectively.
5. To have general supervision of all storerooms and stores operated by the State government, or any of its departments, institutions or agencies and to have supervision of inventories of all tangible personal property belonging to the State government, or any of its departments, institutions or agencies. The duties imposed by this subdivision shall not relieve any department, institution or agency of the State government from accountability for equipment, materials, supplies and tangible personal property under its control.
6. To make provision for or to contract for all State printing, including all printing, binding, paper stock, recycled paper stock, supplies, and supplies with recycled content, or materials in connection with the same.
7. To make available to nonprofit corporations operating charitable hospitals, to local nonprofit community sheltered workshops or centers that meet standards established by the Division of Vocational Rehabilitation of the Department of Health and Human Services, to private nonprofit agencies licensed or approved by the Department of Health and Human Services as child placing agencies, residential child-care facilities, private nonprofit rural, community, and migrant health centers designated by the Office of Rural Health and Resource Development, to private higher education institutions that are described as nonprofit postsecondary educational institutions in G.S. 116-280 and to counties, cities, towns, local school administrative units, governmental entities and other subdivisions of the State and public agencies thereof in the expenditure of public funds, the services of the Department of Administration in the purchase of goods and services under such rules, regulations and procedures as the Secretary of Administration may adopt. In adopting rules and regulations any or all provisions of this Article may be made applicable to such purchases and contracts made through the Department of Administration, and in addition the rules and regulations shall contain a requirement that payment for all such purchases be made in accordance with the terms of the contract.
8. To evaluate the nonprofit qualifications and capabilities of qualified work centers to manufacture commodities or perform services.
9. To establish and maintain a procurement card program for use by State agencies, community colleges, and nonexempted constituent institutions of The University of North Carolina. The Secretary of Administration may adopt temporary rules for the implementation and operation of the program in accordance with the payment policies of the State Controller, after consultation with the Department of Information Technology. These rules would include the establishment of appropriate order limits that leverage the cost savings and efficiencies of the procurement card program in conjunction with the fullest possible use of the North Carolina E-Procurement Service. Prior to implementing the program, the Secretary shall consult with the State Controller, the UNC System Office, the Community Colleges System Office, the State Auditor, the Department of Public Instruction, a representative chosen by the local school administrative units, and the Department of Information Technology. The Secretary may periodically adjust the order limit authorized in this section after consulting with the State Controller, the UNC System Office, the Community Colleges System Office, the Department of Public Instruction, and the Department of Information Technology.
10. To include a standard clause in all contracts awarded by the State and departments, agencies, and institutions of the State, providing that the State Auditor and internal auditors of the affected department, agency, or institution may audit the records of the contractor during and after the term of the contract to verify accounts and data affecting fees or performance.
11. To monitor and enforce the terms and conditions of statewide term contracts. The Secretary of Administration shall not delegate the power and authority granted under this subdivision to any other department, agency, or institution of the State.
12. To develop rules, regulations, and procedures specifying the manner in which departments, agencies, and institutions of the State shall monitor and enforce agency term and non-term contracts.
13. To consult with the Attorney General or the Attorney General's designee in developing rules, regulations, and procedures providing for the orderly and efficient submission of proposed contracts to the Attorney General for review as provided in G.S. 114-8.3 and G.S. 143-52.2.
14. Repealed by Session Laws 2013-234, s. 2, effective October 1, 2013, and applicable to contracts entered into on or after that date.
15. To work in conjunction with the Office of State Human Resources to create a Contracting Specialist career path to provide for the designation of one or more employees within each department, agency, or institution of the State to serve as the Contracting Specialist for the department, agency, or institution. Employees on the Contracting Specialist career path shall receive training and guidance as to the provisions of this Article.
16. To work in conjunction with the Office of State Human Resources, the Division of Purchase and Contract, and the University of North Carolina School of Government to develop a rigorous contract management training and certification program for State employees. Certification in the contract management training program is mandatory for all State employees who are responsible for awarding contracts or monitoring contract compliance. The program shall be administered by the Office of State Human Resources.
17. To work in conjunction with the University of North Carolina School of Government to study and recommend improvements to State procurement laws, including the feasibility of adopting the provisions of the American Bar Association Model Procurement Code. The recommendations shall be reported by the Secretary to the Joint Legislative Commission on Governmental Operations and the Program Evaluation Division by June 30, 2014.
18. To establish procedures to permit State government, or any of its departments, institutions, or agencies, to join with any federal, State, or local government agency, entity, or subdivision, or any nonprofit organization in cooperative purchasing plans, projects, arrangements, or agreements if the interest of the State would be served thereby.

History

(1931, c. 261, s. 2; 1951, c. 3, s. 1; c. 1127, s. 1; 1957, c. 269, s. 3; 1961, c. 310; 1971, c. 587, s. 1; 1975, c. 580; c. 879, s. 46; 1977, c. 733; 1979, c. 759, s. 1; 1983, c. 717, ss. 60, 62; 1985 (Reg. Sess., 1986), c. 955, ss. 79-82; 1989, c. 408; 1991, c. 358, s. 1; 1993, c. 256, s. 1; 1995, c. 265, ss. 1, 5; 1996, 2nd Ex. Sess., c. 18, s. 24.17; 1997-443, s. 11A.118(a); 1999-20, s. 1; 2000-67, s. 10.9(a); 2001-424, s. 15.6(a); 2001-424, s. 15.6(d); 2001-513, s. 28(b); 2003-147, s. 8; 2004-203, s. 72(b); 2005-213, s. 2; 2006-203, s. 82; 2010-194, s. 21; 2011-145, s. 9.18(h); 2011-326, s. 15(w); 2011-338, s. 1; 2013-234, s. 2; 2013-382, s. 9.1(c); 2015-241, s. 7A.4(p); 2017-102, s. 42.1; 2018-5, s. 31.1(a); 2018-12, s. 16.)

Cross References. - As to settlement of affairs of inoperative boards and agencies, see G.S. 143-267 et seq.

Editor's Note. - Section 143-52.2, referred to in subdivision (3a), was repealed by Session Laws 2014-115, s. 11.1, effective August 11, 2014.

Session Laws 2001-424, s. 15.6(a), effective September 26, 2001, repeals Session Laws 1998-212, s. 20.3, as amended by Session Laws 1999-237, s. 24(a), (b), and Session Laws 2000-67, s. 21.3, which had provided that except as provided by this section, no State agency, community college, constituent institution of The University of North Carolina, or local school administrative unit could use procurement cards for the purchase of equipment or supplies before August 1, 2001, and had provided for a pilot program on the purchase of supplies and equipment by procurement card.

Session Laws 2001-424, s. 15.6(c), provides: "The Board of Governors of The University of North Carolina shall take appropriate action to encourage the effective utilization of the North Carolina Electronic Procurement Service by the constituent institutions. By April 1, 2002, and annually thereafter, the Department of Administration and the Office of Information Technology Services, in conjunction with the UNC General Administration, shall review the effect of the exemptions granted under subsection (b) of this section [s. 15.6(c) of Session Laws 2001-424] upon the North Carolina Electronic Procurement Service and shall report their findings to the Joint Select Committee on Information Technology and the Joint Legislative Commission on Governmental Operations."

Session Laws 2001-424, s. 31.11(b), provides that "In the event that G.S. 116-40.22 as enacted by this section and Section 15.6 of this act [ss. 31.62 and 15.6 of Session Laws 2001-424] conflict, then the provisions of section 15.6 control."

Session Laws 2001-424, s. 1.2, provides: "This act shall be known as the 'Current Operations and Capital Improvements Appropriations Act of 2001'."

Session Laws 2001-424, s. 36.3, provides: "Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2001-2003 fiscal biennium, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2001-2003 fiscal biennium."

Session Laws 2001-424, s. 36.5, is a severability clause.

Session Laws 2013-234, s. 13, made the amendment to this section by Session Laws 2013-234, s. 2, applicable to contracts entered into on or after October 1, 2013.

Session Laws 2013-234, s. 11, provides: "The Department of Administration shall provide an individualized notice to the following State entities to ensure that the entities are aware of how the statutory amendments made in S.L. 2010-194, Section 15 of S.L. 2011-326, and this act apply to them:

"(1) The North Carolina State Lottery Commission, which is subject to G.S. 18C-150.

"(2) The Commissioner of Banks, who is subject to G.S. 53-320(d), 53-326(d), 53-391, and 53-401.

"(3) The Commissioner of Insurance, who is subject to G.S. 53-401, 58-33-30(e)(4) and (5), 58-33-125(e), 58-33-130(a), and 58-71-40(d).

"(4) The Global TransPark Authority, which is subject to G.S. 63A-24. The Secretary of Transportation shall be copied on the notice sent to the Global TransPark Authority.

"(5) The North Carolina State Bar Council, which is subject to G.S. 84-23(d).

"(6) The North Carolina Board for Licensing of Geologists, which is subject to G.S. 89E-5(e).

"(7) The North Carolina Board for Licensing of Soil Scientists, which is subject to G.S. 89F-5(d).

"(8) The constituent institutions of The University of North Carolina, which are subject to G.S. 114-8.3(b). For notification under this subdivision, the Department of Administration may provide The University of North Carolina system a notification to distribute to all of its constituent institutions. If the Department of Administration does so, The University of North Carolina system shall distribute those notifications to the system's constituent institutions.

"(9) The North Carolina Center for Applied Textile Technology, which is subject to G.S. 115D-67.4.

"(10) The North Carolina State Health Plan for Teachers and State Employees, which is subject to G.S. 135-48.33(b).

"(11) The Department of Transportation, which is subject to G.S. 136-28.1(h) and G.S. 143-134(b).

"(12) The North Carolina Turnpike Authority, which is subject to G.S. 136-89.194(g)(1). The Secretary of Transportation shall be copied on the notice sent to the Turnpike Authority.

"(13) The Department of Health and Human Services, which is subject to G.S. 143-48.1(c).

"(14) The Division of Adult Correction of the Department of Public Safety, which is subject to G.S. 143-134(b). The Secretary of Public Safety shall be copied on the notice sent to the Division of Adult Correction.

"(15) The North Carolina Code Officials Qualification Board, which is subject to G.S. 143-151.16(d). The Commissioner of Insurance shall be copied on the notice sent to the Code Officials Qualification Board.

"(16) The Roanoke Island Commission, which is subject to G.S. 143B-131.2(b)(15). The Secretary of Cultural Resources shall be copied on the notice sent to the Roanoke Island Commission.

"(17) Any other State entity subject to contract review under G.S. 114-8.3.

"The Department of Administration, as part of its notice, shall provide a means by which an entity may acknowledge receipt and understanding of the notice. If the Department of Administration has not received an acknowledgement from a State entity within 30 days of sending the notice, the Department of Administration shall send a second notice. If the Department of Administration has not received an acknowledgement from a State entity within 30 days of sending the second notice, the Department of Administration shall notify (i) the Joint Legislative Program Evaluation Oversight Committee and (ii) the House Appropriations Subcommittee on General Government and the Senate Appropriations Committee on General Government and Information Technology."

Session Laws 2013-382, s. 9.1(b), provides: "The following entities and positions created by Chapter 126 of the General Statutes are hereby renamed by this act:

"(1) The State Personnel Commission is renamed the 'North Carolina Human Resources Commission.'

"(2) The Office of State Personnel is renamed the 'North Carolina Office of State Human Resources.'

"(3) The State Personnel Director is renamed the 'Director of the North Carolina Office of State Human Resources.'"

Session Laws 2013-382, s. 9.1(c), provides: "Modification of References. - The Revisor of Statutes shall delete any references in the General Statutes to the State Personnel Act, State Personnel Commission, the State Personnel Director, and the Office of State Personnel (or any derivatives thereof) and substitute references to the North Carolina Human Resources Act, the State Human Resources Commission, the Director of the Office of State Human Resources, and the Office of Human Resources (or the appropriate derivative thereof) to effectuate the renaming set forth in this section wherever conforming changes are necessary."

Session Laws 2013-382, s. 9.2, provides: "No action or proceeding pending on the effective date of this section, brought by or against the State Personnel Commission, the Director of the Office of State Personnel, or the Office of State Personnel, shall be affected by any provision of this section, but the same may be prosecuted or defended in the new name of the Commission, Director, and Office. In these actions and proceedings, the renamed Commission, Director, or Office shall be substituted as a party upon proper application to the courts or other public bodies."

Session Laws 2013-382, s. 9.3, provides: "Any business or other matter undertaken or commanded by the former State Personnel Commission, State Personnel Director, or Office of State Personnel regarding any State program, office, or contract or pertaining to or connected with their respective functions, powers, obligations, and duties that are pending on the date this act becomes effective may be conducted and completed by the Commission, Director, or Office in the same manner and under the same terms and conditions and with the same effect as if conducted and completed by the formerly named commission, director, or office."

Session Laws 2018-5, s. 1.1, provides: "This act shall be known as the 'Current Operations Appropriations Act of 2018.'"

Session Laws 2018-5, s. 39.7, is a severability clause.

Effect of Amendments. - Session Laws 2005-213, s. 2, effective January 1, 2006, added subdivision (9).

Session Laws 2010-194, s. 21, effective October 1, 2010, and applicable to all contracts proposed or awarded on or after that date, added subdivisions (9) through (16).

Session Laws 2011-145, s. 9.18(h), effective July 1, 2012, substituted "described as nonprofit postsecondary educational institutions in G.S. 116-280" for "defined as 'institutions' in G.S. 116-22(1)" in the middle of subdivision (6).

Session Laws 2011-326, s. 15(w), effective June 27, 2011, inserted "and after" in subdivision (9); and deleted "statewide term, agency term, and non-term" following "proposed" in subdivision (12).

Session Laws 2011-338, s. 1, effective July 1, 2011, rewrote subdivision (1); in subdivision (2), substituted "goods and services" for "supplies, materials and equipment"; rewrote the first paragraph of subdivision (3), and redesignated and rewrote the former second paragraph of subdivision (3) as subdivision (3a); in subdivision (6), substituted "goods and services" for "materials, supplies and equipment" near the end of the first sentence; and added subdivision (17).

Session Laws 2013-234, s. 2, effective October 1, 2013, in the introductory paragraph, substituted "has the" for "shall have" and "is the Secretary's" for "shall be his"; rewrote subdivision (3a); deleted subdivision (13); and added the second sentence in subdivision (16). For applicability, see editor's note.

Session Laws 2013-382, s. 9.1(c), effective August 21, 2013, substituted "Office of State Human Resources" for "Office of State Personnel" in subdivision (14) and twice in subdivision (15).

Session Laws 2015-241, s. 7A.4(p), effective September 18, 2015, substituted "Department of Information Technology" for "Office of Information Technology Services" throughout subdivision (8).

Session Laws 2017-102, s. 42.1, effective July 12, 2017, substituted "contractor" for "contactor" in subdivision (9).

Session Laws 2018-5, s. 31.1, effective July 1, 2018, added the second sentence in subdivision (15).

Session Laws 2018-12, s. 16, effective July 1, 2018, substituted "System Office" for "General Administration" twice in the last sentence of subdivision (8).

§ 143-49.1. Purchases by volunteer nonprofit fire department and lifesaving and rescue squad.

In consideration of public service, any volunteer nonprofit fire department, lifesaving and rescue squad in this State may purchase gas, oil, and tires for their official vehicles and any other materials and supplies under State contract through the Department of Administration, and may purchase surplus property through the Department of Administration on the same basis applicable to counties and municipalities.

The Department of Administration shall make its services available to these organizations in the purchase of such supplies under the same laws, rules and regulations applicable to nonprofit organizations as provided in G.S. 143-49.

History

(1973, c. 442; 1991, c. 199, s. 1.)

§ 143-50. Certain contractual powers exercised by other departments transferred to Secretary.

All rights, powers, duties and authority relating to State printing, or to the acquisition of supplies, materials, equipment, and contractual services, now imposed upon or exercised by any State department, institution or agency under the several statutes relating thereto, are hereby transferred to the Secretary of Administration and all said rights, powers, duty and authority are hereby imposed upon and shall hereafter be exercised by the Secretary of Administration under the provisions of this Article.

History

(1931, c. 261, s. 3; 1957, c. 269, s. 3; 1971, c. 587, s. 1; 1975, c. 879, s. 46.)

§ 143-50.1. Division of Purchase and Contract; Contract Management Section.

1. The Contract Management Section (CMS) is established in the Division of Purchase and Contract, Department of Administration. The CMS shall include legal counsel with the duties and responsibilities included in this section.
2. Unless otherwise provided in G.S. 114-8.3(b) or (b1), or in this section, for all proposed solicitations for supplies, materials, printing, equipment, or contractual services that exceed one million dollars ($1,000,000), the CMS shall:
   1. Participate and assist in the preparation of all proposed solicitations, and review all available proposals from prospective contractors, with the goal of obtaining the most favorable contract for the State.
   2. Interpret proposed contract terms and advise the Secretary or the Secretary's designee of the potential liabilities to the State.
   3. Review all proposed contracts to ensure that the contracts:
      1. Are in proper legal form.
      2. Contain all clauses required by law.
      3. Are legally enforceable.
      4. Require performance that will accomplish the intended purposes of the proposed contract.
3. With respect to proposed contracts for services that exceed five million dollars ($5,000,000), the CMS shall perform the duties required under G.S. 143-49(3a).
4. The CMS shall:
   1. Assist State departments, agencies, and institutions to establish formal contract administration procedures and functions.
   2. Advise personnel in contracting specialist roles as to appropriate contract management and administrative techniques and activities.
   3. Act as a general resource to State agencies on contracting issues related to procurement, including contract drafting, clarification of terms and conditions, proper solicitation and bid evaluation procedures, contract negotiation, and other matters as directed by the State Purchasing Officer.
   4. Assist representatives of the Attorney General, agency counsel, and other legal staff, as requested, in matters related to contracting for goods and services.
5. The Department of Administration shall adopt procedures for the record keeping of the information provided by State agencies and that has been received by the Secretary or the Secretary's designee pursuant to G.S. 114-8.3(c). The Department shall keep the records, and shall include a log with information that provides identification of individual contracts and where the contract documents are located. The Secretary is authorized to require that entities reporting pursuant to G.S. 114-8.39(c) provide additional information that may be required to identify the individual contracts.
6. The CMS shall consist of personnel designated by the Secretary and perform other functions as directed by the Secretary that are not inconsistent with this section.

The review and evaluation required by this subsection does not constitute approval or disapproval of the policy merit or lack thereof of the proposed contract.

History

(2013-234, s. 3.)

Editor's Note. - Session Laws 2013-234, s. 13, made this section effective October 1, 2013, and applicable to contracts entered into on or after that date.

Session Laws 2013-234, s. 11, provides: "The Department of Administration shall provide an individualized notice to the following State entities to ensure that the entities are aware of how the statutory amendments made in S.L. 2010-194, Section 15 of S.L. 2011-326, and this act apply to them:

"(1) The North Carolina State Lottery Commission, which is subject to G.S. 18C-150.

"(2) The Commissioner of Banks, who is subject to G.S. 53-320(d), 53-326(d), 53-391, and 53-401.

"(3) The Commissioner of Insurance, who is subject to G.S. 53-401, 58-33-30(e)(4) and (5), 58-33-125(e), 58-33-130(a), and 58-71-40(d).

"(4) The Global TransPark Authority, which is subject to G.S. 63A-24. The Secretary of Transportation shall be copied on the notice sent to the Global TransPark Authority.

"(5) The North Carolina State Bar Council, which is subject to G.S. 84-23(d).

"(6) The North Carolina Board for Licensing of Geologists, which is subject to G.S. 89E-5(e).

"(7) The North Carolina Board for Licensing of Soil Scientists, which is subject to G.S. 89F-5(d).

"(8) The constituent institutions of The University of North Carolina, which are subject to G.S. 114-8.3(b). For notification under this subdivision, the Department of Administration may provide The University of North Carolina system a notification to distribute to all of its constituent institutions. If the Department of Administration does so, The University of North Carolina system shall distribute those notifications to the system's constituent institutions.

"(9) The North Carolina Center for Applied Textile Technology, which is subject to G.S. 115D-67.4.

"(10) The North Carolina State Health Plan for Teachers and State Employees, which is subject to G.S. 135-48.33(b).

"(11) The Department of Transportation, which is subject to G.S. 136-28.1(h) and G.S. 143-134(b).

"(12) The North Carolina Turnpike Authority, which is subject to G.S. 136-89.194(g)(1). The Secretary of Transportation shall be copied on the notice sent to the Turnpike Authority.

"(13) The Department of Health and Human Services, which is subject to G.S. 143-48.1(c).

"(14) The Division of Adult Correction of the Department of Public Safety, which is subject to G.S. 143-134(b). The Secretary of Public Safety shall be copied on the notice sent to the Division of Adult Correction.

"(15) The North Carolina Code Officials Qualification Board, which is subject to G.S. 143-151.16(d). The Commissioner of Insurance shall be copied on the notice sent to the Code Officials Qualification Board.

"(16) The Roanoke Island Commission, which is subject to G.S. 143B-131.2(b)(15). The Secretary of Cultural Resources shall be copied on the notice sent to the Roanoke Island Commission.

"(17) Any other State entity subject to contract review under G.S. 114-8.3.

"The Department of Administration, as part of its notice, shall provide a means by which an entity may acknowledge receipt and understanding of the notice. If the Department of Administration has not received an acknowledgement from a State entity within 30 days of sending the notice, the Department of Administration shall send a second notice. If the Department of Administration has not received an acknowledgement from a State entity within 30 days of sending the second notice, the Department of Administration shall notify (i) the Joint Legislative Program Evaluation Oversight Committee and (ii) the House Appropriations Subcommittee on General Government and the Senate Appropriations Committee on General Government and Information Technology."

§ 143-51. Reports to Secretary required of all agencies as to needs and purchases.

1. It shall be the duty of all departments, institutions, or agencies of the State government to furnish to the Secretary of Administration when requested, and on forms to be prescribed by him, estimates of all goods and services needed and required by such department, institution or agency for such periods in advance as may be designated by the Secretary of Administration.
2. In addition to the report required by subsection (a) of this section, all departments, institutions, or agencies of the State government shall furnish to the Secretary of Administration when requested, and on forms to be prescribed by him, actual expenditures for all goods and services needed and required by the department, institution, or agency for such periods after the expenditures have been made as may be designated by the Secretary of Administration.

History

(1931, c. 261, s. 4; 1957, c. 269, s. 3; 1971, c. 587, s. 1; 1975, c. 879, s. 46; 1981, c. 602, s. 1; 2011-338, s. 2.)

Effect of Amendments. - Session Laws 2011-338, s. 2, effective July 1, 2011, added "and purchases" in the section catchline; added the subsection (a) designation, and therein substituted "goods and services" for "supplies, materials, contractual services and equipment"; and added subsection (b).

§ 143-52. Competitive bidding procedure; consolidation of estimates by Secretary; bids; awarding of contracts; cost plus percentage of cost contracts strictly prohibited.

1. The Secretary of Administration shall compile and consolidate all estimates of goods and services needed and required by State departments, institutions and agencies to determine the total requirements of any given commodity. Where the total requirements will involve an expenditure in excess of the expenditure benchmark established under the provisions of G.S. 143-53.1 and where the competitive bidding procedure is employed as hereinafter provided, sealed bids shall be solicited by advertisement in a newspaper widely distributed in this State or through electronic means, or both, as determined by the Secretary to be most advantageous, at least once and at least 10 days prior to the date designated for opening. Except as otherwise provided under this Article, contracts for the purchase of goods and services shall be based on competitive bids and suitable means authorized by the Secretary as provided in G.S. 143-49. The acceptance of bid(s) most advantageous to the State shall be determined upon consideration of the following criteria: prices offered; best value, as the term is defined in G.S. 143-135.9(a)(1); the quality of the articles offered; the general reputation and performance capabilities of the bidders; the substantial conformity with the specifications and other conditions set forth in the request for bids; the suitability of the articles for the intended use; the personal or related services needed; the transportation charges; the date or dates of delivery and performance; and such other factor(s) deemed pertinent or peculiar to the purchase in question, which if controlling shall be made a matter of record. Competitive bids on contracts shall be received in accordance with rules and regulations to be adopted by the Secretary of Administration, which rules and regulations shall prescribe for the manner, time and place for proper advertisement for such bids, the time and place when bids will be received, the articles for which such bids are to be submitted and the specifications prescribed for the articles, the number of the articles desired or the duration of the proposed contract, and the amount, if any, of bonds or certified checks to accompany the bids. Bids shall be publicly opened. Any and all bids received may be rejected. Each and every bid conforming to the terms of the invitation, together with the name of the bidder, shall be tabulated and that tabulation shall become public record in accordance with the rules adopted by the Secretary. All contract information shall be made a matter of public record after the award of contract. Provided, that trade secrets, test data and similar proprietary information may remain confidential. A bond for the faithful performance of any contract may be required of the successful bidder at bidder's expense and in the discretion of the Secretary of Administration. When the dollar value of a contract for the purchase, lease, or lease/purchase of goods exceeds the benchmark established by G.S. 143-53.1, the contract shall be reviewed by the State Purchasing Officer pursuant to G.S. 143-52.1 prior to the contract being awarded. After contracts have been awarded, the Secretary of Administration shall certify to the departments, institutions and agencies of the State government the sources of supply and the contract price of the goods so contracted for.
2. Expired June 30, 2012, pursuant to S.L. 2009-475, s. 16.
3. Neither the Department of Administration nor any department, agency, or institution of the State may award a cost plus percentage of cost contract for any purpose, except as provided in G.S. 18C-150.

History

(1931, c. 261, s. 5; 1933, c. 441, s. 1; 1957, c. 269, s. 3; 1971, c. 587, s. 1; 1975, c. 879, s. 46; 1981, c. 602, ss. 2, 3; 1983, c. 717, s. 61; 1985 (Reg. Sess., 1986), c. 955, ss. 83-86; 1989 (Reg. Sess., 1990), c. 936, s. 3(a); 1997-412, s. 2; 1999-434, s. 12; 2006-203, s. 83; 2009-475, s. 1; 2010-194, s. 22; 2011-338, s. 3; 2013-234, s. 8.)

Cross References. - As to purchasing flexibility, see G.S. 115D-58.14.

Editor's Note. - Session Laws 1993, c. 321, s. 169.2(g) provides that any law that contains "Joint Legislative Highway Oversight Committee" shall be deemed to refer to the "Joint Legislative Transportation Oversight Committee."

Session Laws 1997-443, s. 32.11, provides that the Department of Transportation may enter into a design-build-warrant contract to develop, with Federal Highway Administration participation, a Congestion Avoidance and Reduction for Autos and Trucks (CARAT) system of traffic management in the Charlotte-Mecklenburg urban areas. Notwithstanding any other provision of law, contractors, their employees, and Department of Transportation employees involved in this project only do not have to be licensed by occupational licensing boards, and for the purpose of entering into contracts, the Department of Transportation is exempted from the provisions of G.S. 136-28.1, 143-52, 143-53, 143-58, 143-128, and 143-129; these exemptions are limited and available only to the extent necessary to comply with federal rules, regulations, and policies for completion of this project. The Department shall report quarterly to the Joint Legislative Transportation Oversight Committee on the project. Session Laws from 1991, 1993 and 1995 contained similar provisions.

Session Laws 1997-443, s. 35.2, provides: "Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 1997-99 fiscal biennium, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 1997-99 fiscal biennium."

Session Laws 2006-203, s. 126, provides, in part: "Prosecutions for offenses committed before the effective date of this act [July 1, 2007] are not abated or affected by this act, and the statutes that would be applicable but for this act remain applicable to those prosecutions."

Session Laws 2008-201, s. 1, provides: "The North Carolina Department of Administration, Division of Purchase and Contract, is directed to make the following changes to its Request for Proposal criteria for a statewide tire retread contract:

"(1) Require that the bids remain closed until a designated and advertised bid-opening day in which the bids are opened, announced, and recorded in public. The bids shall then be shown and made available to the public.

"(2) Require that the cost of the tire retread include spot repairs and that there no longer be a separate charge for a spot repair.

"(3) Include in the contract that all casings receive a state-of-the-art inspection with the use of shearography, ultrasound, electrostatic discharge, high pressure testing, or other industry standard testing methodology.

"(4) Include a threshold for the number of times a casing may be retreaded.

"(5) Include a threshold for the age of a casing that may be retreaded.

"(6) Include the number of nail hole repairs that are permissible for a casing to be retreaded.

"(7) Provide assurance that a particular fleet will receive its own casings back after retread completed.

"(8) Set minimum tread depths per category or application of the retread tire.

"(9) Consider a multiaward contract structure that includes several vendors; the Office of Purchase and Contract will take into account geographic location, proximity of vendor to customer, and the needs of the users when creating a multiaward contract.

"(10) Provide for any method of tire retreading to be bid separately."

Session Laws 2009-475, s. 1, which designated the previously existing provisions of this section as subsection (a), added the last sentence in subsection (a), and added subsection (b), dealing with contracts using funds from the ARRA, expired on June 30, 2012.

Session Laws 2013-234, s. 11, provides: "The Department of Administration shall provide an individualized notice to the following State entities to ensure that the entities are aware of how the statutory amendments made in S.L. 2010-194, Section 15 of S.L. 2011-326, and this act apply to them:

"(1) The North Carolina State Lottery Commission, which is subject to G.S. 18C-150.

"(2) The Commissioner of Banks, who is subject to G.S. 53-320(d), 53-326(d), 53-391, and 53-401.

"(3) The Commissioner of Insurance, who is subject to G.S. 53-401, 58-33-30(e)(4) and (5), 58-33-125(e), 58-33-130(a), and 58-71-40(d).

"(4) The Global TransPark Authority, which is subject to G.S. 63A-24. The Secretary of Transportation shall be copied on the notice sent to the Global TransPark Authority.

"(5) The North Carolina State Bar Council, which is subject to G.S. 84-23(d).

"(6) The North Carolina Board for Licensing of Geologists, which is subject to G.S. 89E-5(e).

"(7) The North Carolina Board for Licensing of Soil Scientists, which is subject to G.S. 89F-5(d).

"(8) The constituent institutions of The University of North Carolina, which are subject to G.S. 114-8.3(b). For notification under this subdivision, the Department of Administration may provide The University of North Carolina system a notification to distribute to all of its constituent institutions. If the Department of Administration does so, The University of North Carolina system shall distribute those notifications to the system's constituent institutions.

"(9) The North Carolina Center for Applied Textile Technology, which is subject to G.S. 115D-67.4.

"(10) The North Carolina State Health Plan for Teachers and State Employees, which is subject to G.S. 135-48.33(b).

"(11) The Department of Transportation, which is subject to G.S. 136-28.1(h) and G.S. 143-134(b).

"(12) The North Carolina Turnpike Authority, which is subject to G.S. 136-89.194(g)(1). The Secretary of Transportation shall be copied on the notice sent to the Turnpike Authority.

"(13) The Department of Health and Human Services, which is subject to G.S. 143-48.1(c).

"(14) The Division of Adult Correction of the Department of Public Safety, which is subject to G.S. 143-134(b). The Secretary of Public Safety shall be copied on the notice sent to the Division of Adult Correction.

"(15) The North Carolina Code Officials Qualification Board, which is subject to G.S. 143-151.16(d). The Commissioner of Insurance shall be copied on the notice sent to the Code Officials Qualification Board.

"(16) The Roanoke Island Commission, which is subject to G.S. 143B-131.2(b)(15). The Secretary of Cultural Resources shall be copied on the notice sent to the Roanoke Island Commission.

"(17) Any other State entity subject to contract review under G.S. 114-8.3.

"The Department of Administration, as part of its notice, shall provide a means by which an entity may acknowledge receipt and understanding of the notice. If the Department of Administration has not received an acknowledgement from a State entity within 30 days of sending the notice, the Department of Administration shall send a second notice. If the Department of Administration has not received an acknowledgement from a State entity within 30 days of sending the second notice, the Department of Administration shall notify (i) the Joint Legislative Program Evaluation Oversight Committee and (ii) the House Appropriations Subcommittee on General Government and the Senate Appropriations Committee on General Government and Information Technology."

Effect of Amendments. - Session Laws 2010-194, s. 22, effective October 1, 2010, and applicable to all contracts proposed or awarded on or after that date, in the section catchline, added "cost plus percentage of cost contracts strictly prohibited"; and added subsection (c).

Session Laws 2011-338, s. 3, effective July 1, 2011, in subsection (a), in the first sentence, deleted "As feasible" from the beginning, substituted "shall compile" for "will compile" and "goods and services" for "supplies, materials, printing, equipment and contractual services," subdivided and rewrote the former third sentence, in the next-to-last sentence, substituted "goods" for "equipment, materials, and supplies," and in the last sentence, substituted "goods" for "supplies, materials and equipment."

Session Laws 2013-234, s. 8, effective July 3, 2013, in subsection (a), deleted "such" preceding "estimates of goods" in the first sentence, and preceding "contracts shall be" in the fifth sentence, substituted "the" for "such" preceding "total requirements" in the second sentence, and preceding "articles, the number" in the fifth sentence, and substituted "State Purchasing Officer" for "Board of Awards" in the twelfth sentence.

§ 143-52.1. Award recommendations; State Purchasing Officer action.

1. Award Recommendation. - When the dollar value of a contract to be awarded under Article 3 of Chapter 143 of the General Statutes exceeds the benchmark established pursuant to G.S. 143-53.1, an award recommendation shall be submitted to the State Purchasing Officer for approval or other action. The State Purchasing Officer shall promptly notify the agency or institution making the recommendation, or for which the purchase is to be made, of the action taken.
2. through (d) Repealed by Session Laws 2013-234, s. 4, effective July 3, 2013.
3. Reporting. - The State Procurement Officer shall provide a monthly report of all contract awards greater than the benchmark established under G.S. 143-53.1 approved through the Division of Purchase and Contract to the Cochairs of the Joint Legislative Committee on Governmental Operations. The report shall include the amount of the award, the award recipient, the using agency, and a short description of the nature of the award.

History

(1999-434, s. 13; 2001-487, s. 21(e); 2004-129, s. 41A; 2013-234, s. 4; 2020-78, s. 13.1(a); 2020-90, s. 1.1.)

Editor's Note. - Session Laws 2007-169, s. 2, as amended by Session Laws 2008-187, s. 45, and as amended by Session Laws 2009-474, s. 9, provides: "Notwithstanding G.S. 143-52.1 and S.L. 2006-203, through June 30, 2011, the members of the Advisory Budget Commission in office on June 30, 2007, shall continue to be eligible for appointment to the Board of Awards, and vacancies may be filled by the appointing authority. Through June 30, 2011, the Secretary of Administration shall appoint the Board of Awards from among those eligible."

Session Laws 2013-234, s. 11, provides: "The Department of Administration shall provide an individualized notice to the following State entities to ensure that the entities are aware of how the statutory amendments made in S.L. 2010-194, Section 15 of S.L. 2011-326, and this act apply to them:

"(1) The North Carolina State Lottery Commission, which is subject to G.S. 18C-150.

"(2) The Commissioner of Banks, who is subject to G.S. 53-320(d), 53-326(d), 53-391, and 53-401.

"(3) The Commissioner of Insurance, who is subject to G.S. 53-401, 58-33-30(e)(4) and (5), 58-33-125(e), 58-33-130(a), and 58-71-40(d).

"(4) The Global TransPark Authority, which is subject to G.S. 63A-24. The Secretary of Transportation shall be copied on the notice sent to the Global TransPark Authority.

"(5) The North Carolina State Bar Council, which is subject to G.S. 84-23(d).

"(6) The North Carolina Board for Licensing of Geologists, which is subject to G.S. 89E-5(e).

"(7) The North Carolina Board for Licensing of Soil Scientists, which is subject to G.S. 89F-5(d).

"(8) The constituent institutions of The University of North Carolina, which are subject to G.S. 114-8.3(b). For notification under this subdivision, the Department of Administration may provide The University of North Carolina system a notification to distribute to all of its constituent institutions. If the Department of Administration does so, The University of North Carolina system shall distribute those notifications to the system's constituent institutions.

"(9) The North Carolina Center for Applied Textile Technology, which is subject to G.S. 115D-67.4.

"(10) The North Carolina State Health Plan for Teachers and State Employees, which is subject to G.S. 135-48.33(b).

"(11) The Department of Transportation, which is subject to G.S. 136-28.1(h) and G.S. 143-134(b).

"(12) The North Carolina Turnpike Authority, which is subject to G.S. 136-89.194(g)(1). The Secretary of Transportation shall be copied on the notice sent to the Turnpike Authority.

"(13) The Department of Health and Human Services, which is subject to G.S. 143-48.1(c).

"(14) The Division of Adult Correction of the Department of Public Safety, which is subject to G.S. 143-134(b). The Secretary of Public Safety shall be copied on the notice sent to the Division of Adult Correction.

"(15) The North Carolina Code Officials Qualification Board, which is subject to G.S. 143-151.16(d). The Commissioner of Insurance shall be copied on the notice sent to the Code Officials Qualification Board.

"(16) The Roanoke Island Commission, which is subject to G.S. 143B-131.2(b)(15). The Secretary of Cultural Resources shall be copied on the notice sent to the Roanoke Island Commission.

"(17) Any other State entity subject to contract review under G.S. 114-8.3.

"The Department of Administration, as part of its notice, shall provide a means by which an entity may acknowledge receipt and understanding of the notice. If the Department of Administration has not received an acknowledgement from a State entity within 30 days of sending the notice, the Department of Administration shall send a second notice. If the Department of Administration has not received an acknowledgement from a State entity within 30 days of sending the second notice, the Department of Administration shall notify (i) the Joint Legislative Program Evaluation Oversight Committee and (ii) the House Appropriations Subcommittee on General Government and the Senate Appropriations Committee on General Government and Information Technology."

Session Laws 2020-78, s. 13.1(e), made the amendment of this section by Session Laws 2020-78, s. 13.1(a), effective July 1, 2020, and applicable to contracts entered into on or after that date.

Session Laws 2020-78, s. 22.1, provides: "Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2019-2021 fiscal biennium, the textual provisions of this act apply only to the 2019-2021 fiscal biennium."

Session Laws 2020-78, s. 22.3, is a severability clause.

Session Laws 2020-90, s. 1.6, made the amendment of this section by Session Laws 2020-90, s. 1.1, effective July 2, 2020, and applicable to contracts entered into on or after that date.

Effect of Amendments. - Session Laws 2004-129, s. 41A, effective July 1, 2004, substituted "Legislative Oversight" for "Select" in subsection (e).

Session Laws 2013-234, s. 4, effective July 3, 2013, rewrote the section heading, which formerly read "Board of Awards"; and rewrote the section.

Session Laws 2020-78, s. 13.1(a), substituted "the benchmark established under G.S. 143-53.1" for "twenty-five thousand dollars ($25,000)" in the first sentence of subsection (e). For effective date and applicability, see editor's note.

Session Laws 2020-90, s. 1.1, substituted "the benchmark established under G.S. 143-53.1" for "twenty-five thousand dollars ($25,000)" in the first sentence of subsection (e). For effective date and applicability, see editor's note.

§ 143-52.2: Repealed by Session Laws 2014-115, s. 11.1, effective August 11, 2014.

History

(2010-194, s. 23; 2011-326, s. 15(x); repealed by 2014-115, s. 11.1, effective August 11, 2014.)

Editor's Note. - Former G.S. 143-52.2 made certain contracts subject to review by the Attorney General.

§ 143-52.3. Multiple award schedule contracts.

1. Definitions. - The following definitions apply in this section:
   1. Communications equipment. - Mobile communications systems, desktop communications systems, base and repeater communications systems, gateway devices, audio switch units, radio routers, microwave radios, microwave antennae, Ethernet switches, wireless access points, or equivalent products and attachments.
   2. Construction equipment. - Excavators, wheel excavators, track loaders, compact track loaders, wheel loaders, skid steer loaders, backhoe loaders, crawler dozers, crawler loaders, wheel dozers, motor graders, utility cranes, compactors, and appropriate attachments, or equivalent products and attachments.
   3. Forestry equipment. - Feller bunchers, knuckleboom loaders, forestry swing machines, harvesters, and appropriate attachments, or equivalent products and attachments.
   4. Ground maintenance equipment. - Hand-held equipment, walk-behind products, lawn tractors, lawn and garden tractors, commercial walk-behind mowers, zero turn radius mowers, front mowers, compact utility tractors, utility tractors, utility vehicles, golf and turf equipment, agricultural tractors and implements, and appropriate attachments, or equivalent products and attachments.
   5. Multiple award schedule contract. - A contract that allows multiple vendors to be awarded a State contract for goods or services by providing their total catalogues for lines of equipment and attachments to eligible purchasers, including State agencies, departments, institutions, public school districts, political subdivisions, community colleges, and constituent institutions of The University of North Carolina.
2. Intent. - The intent of multiple award schedule contracts is to evaluate vendors based upon a variety of factors, including discounts, total lifecycle costs, service, warranty, distribution channel, and past vendor performance. Multiple award schedule contracts allow multiple vendors to compete and be awarded a contract based upon the value of their products or services and result in competitive pricing, transparency, administrative savings, expedited procurement, and flexibility for State purchasers.
3. Multiple Award Schedule Contracts Required. - The acquisition of ground maintenance equipment, construction equipment, communications equipment, and forestry equipment shall be conducted using multiple award schedule contracts, except as provided in this section. Not later than August 31, 2011, the Department of Administration shall issue requests for proposals for multiple award schedule contracts for all ground maintenance equipment product categories, construction equipment product categories, communications equipment product categories, and forestry equipment product categories. Contracts awarded under this subsection shall be for a term of not less than three years with annual product and pricing update periods.
4. Limitation. - Any contract awarded under subsection (c) of this section shall be in addition to any existing term contracts for ground maintenance equipment, construction equipment, communications equipment, and forestry equipment. Nothing in this section shall limit the ability of the Department of Administration to issue additional term contracts for the specific purchase of equipment otherwise available through a multiple award schedule contract. The Department of Public Safety shall not be required to purchase from contracts awarded under subsection (c) of this section for communications equipment.

History

(2011-145, s. 19.1(g); 2011-360, s. 1.)

Effect of Amendments. - Session Laws 2011-145, s. 19.1(g), effective January 1, 2012, substituted "Department of Public Safety" for "Department of Crime Control and Public Safety" in subsection (d).

§ 143-53. Rules.

1. The Secretary of Administration may adopt rules governing the following:
   1. Prescribing the routine and procedures to be followed in canvassing bids and awarding contracts, and for reviewing decisions made pursuant thereto, and the decision of the reviewing body shall be the final administrative review. The Division of Purchase and Contract shall review and decide a protest on a contract valued at an amount that exceeds the benchmark established under G.S. 143-53.1. The Secretary shall adopt rules or criteria governing the review of and decision on a protest on a contract valued at or below the benchmark established under G.S. 143-53.1 by the agency that awarded the contract.
   2. (See Editor's note) Prescribing the routine, including consistent contract language, for securing bids on items that do not exceed the bid value benchmark established under the provisions of G.S. 143-53.1, 115D-58.14, or 116-31.10. The bid value benchmark for securing offers for each State department, institution, and agency established under the provisions of G.S. 143-53.1 shall be determined by the Director of the Division of Purchase and Contract following the Director's consultation with the State Budget Officer and the State Auditor. The Director for the Division of Purchase and Contract may set or lower the benchmark, or raise the benchmark upon written request by the agency, after consideration of their overall capabilities, including staff resources, purchasing compliance reviews, and audit reports of the individual agency. The routine prescribed by the Secretary shall include contract award protest procedures and consistent requirements for advertising of solicitations for securing offers issued by State departments, institutions, universities (including the special responsibility constituent institutions of The University of North Carolina), agencies, community colleges, and the public school administrative units.
   3. Repealed by Session Laws 2011-338, s. 4, effective July 1, 2011.
   4. Prescribing items and quantities, and conditions and procedures, governing the acquisition of goods and services which may be delegated to departments, institutions and agencies, notwithstanding any other provisions of this Article.
   5. Prescribing conditions under which purchases and contracts for the purchase, installment or lease-purchase, rental or lease of goods and services may be entered into by means other than competitive bidding, including, but not limited to, negotiation, reverse auctions, and acceptance of electronic bids. Notwithstanding the provisions of subsections (a) and (b) of this section, any waiver of competition for the purchase, rental, or lease of goods and services is subject to prior review by the Secretary, if the expenditure exceeds the benchmark established under G.S. 143-53.1. The Division may levy a fee, not to exceed one dollar ($1.00), for review of each waiver application.
   6. Prescribing conditions under which partial, progressive and multiple awards may be made.
   7. Prescribing conditions and procedures governing the purchase of used goods.
   8. Providing conditions under which bids may be rejected in whole or in part.
   9. Prescribing conditions under which information submitted by bidders or suppliers may be considered proprietary or confidential.
   10. Prescribing procedures for making purchases under programs involving participation by two or more levels or agencies of government, or otherwise with funds other than State-appropriated.
   11. Prescribing procedures to encourage the purchase of North Carolina farm products, and products of North Carolina manufacturing enterprises.
   12. Repealed by Session Laws 1987, c. 827, s. 216.
2. In adopting the rules authorized by subsection (a) of this section, the Secretary shall include special provisions for the purchase of goods and services, which provisions are necessary to meet the documented training, work, or independent living needs of persons with disabilities according to the requirements of the Rehabilitation Act of 1973, as amended, and the Americans with Disabilities Act, as amended. The Secretary may consult with other agencies having expertise in meeting the needs of individuals with disabilities in developing these provisions. These special provisions shall establish purchasing procedures that:
   1. Provide for the involvement of the individual in the choice of particular goods, service providers, and in the methods used to provide the goods and services;
   2. Provide the flexibility necessary to meet those varying needs of individuals that are related to their disabilities;
   3. Allow for purchase outside of certified sources of supply and competitive bidding when a single source can provide multiple pieces of equipment, including adaptive equipment, that are more compatible with each other than they would be if they were purchased from multiple vendors;
   4. Permit priority consideration for vendors who have the expertise to provide appropriate and necessary training for the users of the equipment and who will guarantee prompt service, ongoing support, and maintenance of this equipment;
   5. Permit agencies to give priority consideration to suppliers offering the earliest possible delivery date of goods or services especially when a time factor is crucial to the individual's ability to secure a job, meet the probationary training periods of employment, continue to meet job requirements, or avoid residential placement in an institutional setting; and
   6. Allow consideration of the convenience of the provider's location for the individual with the disability.
3. The purpose of rules promulgated hereunder shall be to promote sound purchasing management.
4. Notwithstanding the provisions of this section or any rule adopted pursuant to this Article, The University of North Carolina may solicit bids for service contracts with a term of 10 years or less, including extensions and renewals, without the prior approval of the State Purchasing Officer.
5. Expired June 30, 2012, pursuant to S.L. 2009-475, s. 16.

In developing these purchasing provisions, the Secretary shall also consider the following criteria: (i) cost-effectiveness, (ii) quality, (iii) the provider's general reputation and performance capabilities, (iv) substantial conformity with specifications and other conditions set forth for these purchases, (v) the suitability of the goods or services for the intended use, (vi) the personal or other related services needed, (vii) transportation charges, and (viii) any other factors the Secretary considers pertinent to the purchases in question.

History

(1931, c. 261, s. 5; 1933, c. 441, s. 1; 1957, c. 269, s. 3; 1971, c. 587, s. 1; 1975, c. 879, s. 46; 1981, c. 602, s. 4; 1983, c. 717, ss. 63-64.1; 1985 (Reg. Sess., 1986), c. 955, ss. 87, 88; 1987, c. 827, s. 216; 1989 (Reg. Sess., 1990), c. 936, s. 3(b); 1995, c. 256, s. 1; 1997-412, s. 3; 1998-217, s. 15; 1999-400, ss. 1, 2; 2002-107, s. 2; 2003-147, s. 9; 2004-203, s. 72(b); 2005-125, s. 1; 2006-203, s. 84; 2009-475, s. 2; 2011-338, s. 4; 2013-289, s. 7; 2020-78, s. 13.1(b); 2020-90, s. 1.2.)

Certification as E-Procurement Compliant. - Session Laws 2003-147, s. 10(a) through (e) contains provisions encouraging local school administrative units to use the NC E-procurement Service for their purchasing requirements.

Editor's Note. - As to exemption of the Department of Transportation from the provisions of this section for the purpose of entering into contracts with respect to the development of a "Congestion Avoidance and Reduction for Autos and Truck (CARAT)" system of traffic management for the greater Charlotte-Mecklenburg urban areas, see Session Laws 1991 (Reg. Sess., 1992), c. 900, s. 94, Session Laws 1993, c. 321, s. 162, Session Laws 1995, c. 324, s. 18.14, and Session Laws 1997-443, s. 32.11.

Session Laws 1999-400, which amended subdivisions (a)(1) and (a)(5), provided that the act would not apply to an agency, board, department, institution, or commission that is exempt from Article 3 of Chapter 143 of the General Statutes or from the provisions of that Article that require certain contracts to be awarded by the Department of Administration.

Session Laws 1999-405, s. 7.1, provided that if Senate Bill 968 became law, the amendments made by Senate Bill 968, which added the last two sentences to subdivision (a)(1) and the last two sentences to subdivision (a)(5), do not apply to Special Responsibility Constituent Institutions as designated by the Board of Governors of The University of North Carolina pursuant to G.S. 116-30.1. Senate Bill 968 was enacted as Session Laws 1999-400, effective September 1, 1999.

Session Laws 2002-107, s. 3, provides: "Notwithstanding any other provision of law to the contrary, the Secretary may conduct a pilot program for reverse auctions. The reverse auctions shall be utilized only for the purchase or exchange of those supplies, equipment, and materials as provided in G.S. 115C-522, for use by the public school systems. The Secretary shall report the results of the pilot program to the Joint Select Committee on Information Technology, upon the convening of the 2003 General Assembly."

Session Laws 2003-147, s. 11, provides: "Nothing in this act [giving local boards of education additional purchasing flexibility and encouraging them to use the NC E-Procurement Service] shall be construed to limit the authority of the Department of Administration to develop, implement, and monitor a pilot program for reverse auctions for public school systems as provided in Section 3 of Chapter 107 of the 2002 Session Laws."

Session Laws 2003-147, s. 12, as amended by Session Laws 2004-203, s. 72(b), provides: "Sections 1 through 9 of this act become effective for a local school administrative unit when the unit is certified by the Department of Public Instruction as being E-Procurement compliant, as provided in Section 10 of this act, or April 1, 2004, whichever occurs first."

Session Laws 2006-203, s. 126, provides, in part: "Prosecutions for offenses committed before the effective date of this act [July 1, 2007] are not abated or affected by this act, and the statutes that would be applicable but for this act remain applicable to those prosecutions."

Session Laws 2009-475, s. 2, which added subsection (e), dealing with rules for contracts using funds from the AARA, expired on June 30, 2012.

Session Laws 2020-78, s. 13.1(e), made the amendment of subdivisions (a)(1) and (a)(5) of this section by Session Laws 2020-78, s. 13.1(b), effective July 1, 2020, and applicable to contracts entered into on or after that date.

Session Laws 2020-78, s. 22.1, provides: "Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2019-2021 fiscal biennium, the textual provisions of this act apply only to the 2019-2021 fiscal biennium."

Session Laws 2020-78, s. 22.3, is a severability clause.

Session Laws 2020-90, s. 1.6, made the amendment of subdivisions (a)(1) and (a)(5) of this section by Session Laws 2020-90, s. 1.2, effective July 2, 2020, and applicable to contracts entered into on or after that date.

Effect of Amendments. - Session Laws 2005-125, s. 1, effective June 29, 2005, added subsection (d).

Session Laws 2011-338, s. 4, effective July 1, 2011, deleted subdivision (a)(3), which read: "Defining contractual services for the purposes of G.S. 143-49(3) and G.S. 143-49(5)"; in subdivision (a)(5), in the first and second sentences, substituted "goods and services" for "equipment, materials, supplies or services," and deleted the former second sentence, which read: "Reverse auctions may only be utilized for the purchase or exchange of supplies, equipment, and materials as provided in G.S. 115C-522"; and in subdivision (a)(7), substituted "goods" for "equipment, materials and supplies."

Session Laws 2013-289, s. 7, effective July 18, 2013, in subdivision (a)(2), substituted "G.S. 143-53.1, 115D-58.14, or 116-31.10" for "G.S. 143-53.1 or G.S. 116-31.10" in the first sentence, in the second sentence, substituted "The bid value benchmark for securing offers for each State department, institution, and agency established under the provisions of G.S. 143-53.1 shall be determined by the Director of the Division of Purchase and Contract following" for "The purchasing delegation for securing offers (excluding the special responsibility constituent institutions of The University of North Carolina) for each State department, institution, agency, or community college shall be determined by the Director of the Division of purchase and Contract. For the State agencies this shall be done following," and, in the present third sentence, substituted "benchmark" for "delegation" twice.

Session Laws 2020-78, s. 13.1(b), in subdivision (a)(1), substituted "an amount that exceeds the benchmark established under G.S. 143-53.1" for "twenty-five thousand dollars ($25,000) or more" in the second sentence, and substituted "valued at or below the benchmark established under G.S. 143-53.1" for "of less than twenty-five thousand dollars ($25,000)" in the last sentence; and substituted "the benchmark established under G.S. 143-53.1" for "ten thousand dollars ($10,000)" in the second sentence of subdivision (a)(5). For effective date and applicability, see editor's note.

Session Laws 2020-90, s. 1.2, in subdivision (a)(1), substituted "an amount that exceeds the benchmark established under G.S. 143-53.1" for "twenty-five thousand dollars ($25,000) or more" in the second sentence and substituted "valued at or below the benchmark established under G.S. 143-53.1" for "of less than twenty-five thousand dollars ($25,000)" in the last sentence; and substituted "the benchmark established under G.S. 143-53.1" for "ten thousand dollars ($10,000)" in the second sentence of subdivision (a)(5). For effective date and applicability, see editor's note.

Legal Periodicals. - For 1997 legislative survey, see 20 Campbell L. Rev. 437.

§ 143-53.1. Setting of benchmarks; increase by Secretary.

1. On and after July 1, 2014, the procedures prescribed by G.S. 143-52 with respect to competitive bids and the bid value benchmark authorized by G.S. 143-53(a)(2) with respect to rule making by the Secretary of Administration for competitive bidding shall promote compliance with the principles of procurement efficiency, transparency, and fair competition to obtain the State's business. For State departments, institutions, and agencies, except the President of The University of North Carolina or a special responsibility constituent institution of The University of North Carolina and community colleges, the benchmark shall not be greater than one hundred thousand dollars ($100,000). For the President of The University of North Carolina or a special responsibility constituent institution of The University of North Carolina, the benchmark prescribed in this section is as provided in G.S. 116-31.10. For community colleges, the benchmark prescribed in this section is as provided in G.S. 115D-58.14.
2. Expired pursuant to Session Laws 2009-475, s. 16, effective June 30, 2012.

History

(1989 (Reg. Sess., 1990), c. 936, s. 3(c); 1991, c. 689, s. 206.2(b); 1993 (Reg. Sess., 1994), c. 591, s. 10(a); c. 769, s. 17.6(b); 1997-412, s. 4; 2009-475, s. 5; 2011-326, s. 18(a); 2013-289, s. 8; 2017-68, s. 4(b); 2020-78, s. 13.1(c); 2020-90, s. 1.3.)

Cross References. - As to purchasing flexibility for community colleges, see G.S. 115D-58.14.

Editor's Note. - Session Laws 2009-475, s. 5, which added the former last sentence in subsection (a) and added subsection (b), dealing with contracts using funds from the AARA, expired on June 30, 2012. However, as to the amendment of the last sentence in subsection (a), see the Editor's note to Session Laws 2011-326.

Session Laws 2011-326, s. 18(a), effective July 1, 2012, makes the same amendment to subsection (a) that was made by Session Laws 2009-475, s. 5, and which was to expire June 30, 2012. This has the effect of removing the expiration date for the amendment of subsection (a) by Session Laws 2009-475, s. 5.

Session Laws 2020-78, s. 13.1(e), made the amendment of subsection (a) of this section by Session Laws 2020-78, s. 13.1(c), effective July 1, 2020, and applicable to contracts entered into on or after that date.

Session Laws 2020-78, s. 22.1, provides: "Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2019-2021 fiscal biennium, the textual provisions of this act apply only to the 2019-2021 fiscal biennium."

Session Laws 2020-78, s. 22.3, is a severability clause.

Session Laws 2020-90, s. 1.6, made the amendment of subsection (a) of this section by Session Laws 2020-90, s. 1.3, effective July 2, 2020, and applicable to contracts entered into on or after that date.

Effect of Amendments. - Session Laws 2009-475, s. 5, effective February 17, 2009, designated the previously existing provisions as subsection (a); added the last sentence in subsection (a); and added subsection (b).

Session Laws 2011-326, s. 18(a), effective July 1, 2012, added the subsection (a) designation, and therein added the last sentence.

Session Laws 2013-289, s. 8, effective July 18, 2013, in subsection (a), rewrote the first sentence, and substituted "this section is" for "this section shall be" in the second sentence.

Session Laws 2017-68, s. 4(b), effective June 28, 2017, inserted "the President of The University of North Carolina or" in the second sentence of subsection (a).

Session Laws 2020-78, s. 13.1(c), inserted the second sentence of subsection (a). For effective date and applicability, see editor's note.

Session Laws 2020-90, s. 1.3, inserted the second sentence in subsection (a). For effective date and applicability, see editor's note.

§ 143-54. Certification that bids were submitted without collusion.

1. The Director of Administration shall require bidders to certify that each bid is submitted competitively and without collusion. False certification is a Class I felony.
2. Expired June 30, 2012, pursuant to S.L. 2009-475, s. 16.

History

(1961, c. 963; 1971, c. 587, s. 1; 1993, c. 539, s. 1310; 1994, Ex. Sess., c. 24, s. 14(c); 2009-475, s. 6.)

Editor's Note. - Session Laws 2009-475, s. 6, which added subsection (b), dealing with the certification required for contracts using funds from the ARRA, expired on June 30, 2012.

Effect of Amendments. - Session Laws 2009-475, s. 6, effective February 17, 2009, and expiring June 30, 2012, designated the existing provisions as subsection (a) and added subsection (b).

§ 143-55. Requisitioning by agencies; must purchase through sources certified.

1. Unless otherwise provided by law, where sources of supply have been established by contract and certified by the Secretary of Administration to the said departments, institutions and agencies as herein provided for, it shall be the duty of all departments, institutions and agencies to make requisition or issue orders on forms to be prescribed by the Secretary of Administration, for purchases required by them upon the sources of supply so certified, and, except as herein otherwise provided for, it shall be unlawful for them, or any of them, to purchase  from other sources than those certified by the Secretary of Administration. One copy of such requisition or order shall be furnished to and when requested by the Secretary of Administration.
2. Expired June 30, 2012, pursuant to S.L. 2009-475, s. 16.

History

(1931, c. 261, s. 6; 1957, c. 269, s. 3; 1971, c. 587, s. 1; 1975, c. 879, s. 46; 2006-264, s. 59(c); 2009-475, s. 7; 2011-338, s. 5.)

Editor's Note. - Session Laws 2009-475, s. 7, which added subsection (b), dealing with certifications for contracts using funds from the AARA, expired on June 30, 2012.

Effect of Amendments. - Session Laws 2006-264, s. 59(c), effective August 27, 2006, added "Unless otherwise provided by law" at the beginning of this section.

Session Laws 2009-475, s. 7, effective February 17, 2009, and expiring June 30, 2012, designated the previously existing provisions as subsection (a) and added subsection (b).

Session Laws 2011-338, s. 5, effective July 1, 2011, in the section catchline, deleted "for supplies" following "Requisitioning"; and in the first sentence of subsection (a), substituted "where sources of supply have been established" for "after sources of supply have been established" and "for purchases required" for "for all supplies, materials and equipment required," and deleted "any supplies, materials or equipment" following "to purchase."

§ 143-56. Certain purchases excepted from provisions of Article.

Unless as may otherwise be ordered by the Secretary of Administration, the purchase of supplies, materials and equipment through the Secretary of Administration shall be mandatory in the following cases:

1. Published books, manuscripts, maps, pamphlets and periodicals.
2. Perishable articles such as fresh vegetables, fresh fish, fresh meat, eggs, and others as may be classified by the Secretary of Administration.

Purchase through the Secretary of Administration shall not be mandatory for information technology purchased in accordance with Article 15 of Chapter 143B of the General Statutes, for a purchase of supplies, materials or equipment for the General Assembly if the total expenditures is less than the expenditure benchmark established under the provisions of G.S. 143-53.1, for group purchases made by hospitals, developmental centers, neuromedical treatment centers, and alcohol and drug abuse treatment centers through a competitive bidding purchasing program, as defined in G.S. 143-129, by the University of North Carolina Health Care System pursuant to G.S. 116-37(h), by the University of North Carolina Hospitals at Chapel Hill pursuant to G.S. 116-37(a)(4), by the University of North Carolina at Chapel Hill on behalf of the clinical patient care programs of the School of Medicine of the University of North Carolina at Chapel Hill pursuant to G.S. 116-37(a)(4), or by East Carolina University on behalf of the Medical Faculty Practice Plan pursuant to G.S. 116-40.6(c).

All purchases of the above articles made directly by the departments, institutions and agencies of the State government shall, whenever possible, be based on competitive bids. Whenever an order is placed or contract awarded for such articles by any of the departments, institutions and agencies of the State government, a copy of such order or contract shall be forwarded to the Secretary of Administration and a record of the competitive bids upon which it was based shall be retained for inspection and review.

History

(1931, c. 261, s. 7; 1957, c. 269, s. 3; 1971, c. 587, s. 1; 1975, c. 879, s. 46; 1981, c. 953; 1983, c. 717, ss. 65, 66; 1985, c. 145, s. 3; 1989 (Reg. Sess., 1990), c. 936, s. 3(e); 1998-212, s. 11.8(c); 1999-434, s. 14; 1999-456, s. 7; 2001-487, s. 21(f); 2009-184, s. 1; 2015-241, s. 7A.4(q).)

Effect of Amendments. - Session Laws 2015-241, s. 7A.4(q), effective September 18, 2015, substituted "Article 15 of Chapter 143B" for "Article 3D of Chapter 147" in the first sentence of the first paragraph following subdivision (2).

§ 143-57. Purchases of articles in certain emergencies.

In case of any emergency or pressing need arising from unforeseen causes including but not limited to delay by contractors, delay in transportation, breakdown in machinery, or unanticipated volume of work, the Secretary of Administration shall have power to obtain or authorize obtaining in the open market any necessary supplies, materials, equipment, printing or services for immediate delivery to any department, institution or agency of the State government. A report on the circumstances of such emergency or need and the transactions thereunder shall be made a matter of record promptly thereafter. If the expenditure exceeds the benchmark established under G.S. 143-53.1, the report shall also be made promptly thereafter to the Division of Purchase and Contract.

History

(1931, c. 261, s. 8; 1957, c. 269, s. 3; 1971, c. 587, s. 1; 1975, c. 879, s. 46; 1999-400, s. 3; 2020-78, s. 13.1(d); 2020-90, s. 1.4.)

Editor's Note. - Session Laws 1999-400, s. 3.1, provided that the act would apply to an agency, board, department, institution, or commission that is exempt from Article 3 of Chapter 143 of the General Statutes or from the provisions of that Article that require certain contracts to be awarded by the Department of Administration.

Session Laws 1999-405, s. 7.1, provided that if Senate Bill 968 became law, the amendments made by Senate Bill 968, which added the last sentence, does not apply to Special Responsibility Constituent Institutions as designated by the Board of Governors of The University of North Carolina pursuant to G.S. 116-30.1. Senate Bill 968 was enacted as Session Laws 1999-400, effective September 1, 1999.

Session Laws 2020-78, s. 13.1(e), made the amendment of this section by Session Laws 2020-78, s. 13.1(d), effective July 1, 2020, and applicable to contracts entered into on or after that date.

Session Laws 2020-78, s. 22.1, provides: "Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2019-2021 fiscal biennium, the textual provisions of this act apply only to the 2019-2021 fiscal biennium."

Session Laws 2020-78, s. 22.3, is a severability clause.

Session Laws 2020-90, s. 1.6, made the amendment of this section by Session Laws 2020-90, s. 1.4, effective July 2, 2020, and applicable to contracts entered into on or after that date.

Session Laws 2020-97, s. 1.7(a), (b), as amended by Session Laws 2021-1, s. 3.12, provides: "(a) Notwithstanding the provisions of G.S. 143-57, State departments, institutions, and agencies subject to Article 3 of Chapter 143 of the General Statutes may obtain in the open market necessary supplies, materials, equipment, printing, or services to address the COVID-19 pandemic, including purchases that exceed the benchmark established under G.S. 143-53.1, without the authorization or approval of the Secretary of Administration. A report on COVID-19 expenditures shall be made a matter of record promptly after the expenditures have been made. If the expenditure exceeds the benchmark established under G.S. 143-53.1, the report shall also be made promptly thereafter to the Division of Purchase and Contract. For purposes of this subsection, the term 'COVID-19' means the coronavirus disease 2019.

"(b) This section applies to all contracts entered into on or after the date it becomes law and expires on December 31, 2021."

Session Laws 2020-97, s. 4.5, is a severability clause.

Effect of Amendments. - Session Laws 2020-78, s. 13.1(d), substituted "the benchmark established under G.S. 143-53.1" for "ten thousand dollars ($10,000)" in the last sentence. For effective date and applicability, see editor's note.

Session Laws 2020-90, s. 1.4, substituted "the benchmark established under G.S. 143-53.1" for "ten thousand dollars ($10,000)" in the last sentence. For effective date and applicability, see editor's note.

§ 143-57.1. Furniture requirements contracts.

1. State Furniture Requirements Contract. - To ensure agencies access to sufficient sources of furniture supply and service, to provide agencies the necessary flexibility to obtain furniture that is compatible with interior architectural design and needs, to provide small and disadvantaged businesses additional opportunities to participate on State requirements contracts, and to restore the traditional use of multiple award contracts for purchasing furniture requirements, each State furniture requirements contract shall be awarded on a multiple award basis, subject to the following conditions:
   1. Competitive, sealed bids must be solicited for the contract in accordance with Article 3 of Chapter 143 of the General Statutes unless otherwise provided for by the State Purchasing Officer pursuant to that Article. Bids shall be solicited on a historical weighted average of specific contract items and not on a single item within a class of items. Historical weighted average shall be based on information derived from the State's electronic procurement system, when available, or other available data.
   2. Subject to the provisions of this section, bids shall be evaluated and the contract awarded in accordance with Article 3 of Chapter 143 of the General Statutes.
   3. For each category of goods under each State requirements furniture contract, awards shall be made to at least three qualified vendors unless three qualified vendors are not available. Additionally, if the State Purchasing Officer determines that there are no qualified vendors within the three best qualified vendors who offer furniture manufactured or produced in North Carolina or who are incorporated in the State, the State Purchasing Officer shall expand the number of qualified vendors awarded contracts to as many qualified vendors as is necessary to include a qualified vendor who offers furniture manufactured or produced in North Carolina or who is incorporated in the State, but the State Purchasing Officer shall not be required to expand the number of qualified vendors to more than six qualified vendors. A vendor is qualified under this subsection if the vendor's products conform to the term contract specifications and the vendor submits a responsive bid.
   4. Repealed by Session Laws 2013-73, s. 1, effective June 12, 2013.
2. GSA Furniture Schedule. - Vendors meeting the following requirements are treated as qualified vendors under any State furniture requirements contract:
   1. The vendor's products are included on a United States General Services Administration (GSA) Furniture Schedule.
   2. The vendor is a federally qualified vendor within the GSA Furniture Schedule.
   3. The vendor offers products on the same pricing and specifications as the vendor's products included on the GSA Furniture Schedule.
   4. The vendor is a resident bidder as defined in G.S. 143-59(c) or the vendor offers products manufactured or produced in North Carolina.
3. Definition. -  For purposes of this section, "furniture requirements contract" means State requirements contracts for casegoods, classroom furniture, bookcases, ergonomic chairs, office swivel and side chairs, computer furniture, mobile and folding furniture, upholstered seating, commercial dining tables, and related items.
4. Authority to Purchase. - An agency may purchase from any vendor certified on the State furniture requirements contract, including vendors meeting the requirements of subsection (a1) of this section. An agency shall make the most economical purchase that it determines meets its needs, based upon price, compatibility, service, delivery, freight charges, contract terms, and other factors that it considers relevant.

History

(1995, c. 136, ss. 1, 3; 1995 (Reg. Sess., 1996), c. 716, s. 30; 2004-115, s. 1; 2013-73, s. 1; 2020-90, s. 1.5.)

Editor's Note. - Session Laws 1995, c. 136, ss. 1, 3, were codified as this section at the direction of the Revisor of Statutes.

Session Laws 1995 (Reg. Sess., 1996), c. 716, s. 31, provides: "With respect to a furniture requirements contract that is not currently under G.S. 143-57.1, an agency may purchase from any vendor certified on the contract but shall make the most economical purchase that it determines meets its needs, based upon price, compatibility, service, delivery, and other factors that it considers relevant."

Subdivisions (a)(1) and (a)(3), as amended by Session Laws 2004-115, s. 1, effective July 1, 2004, are applicable to contracts advertised for bid on or after that date.

Session Laws 2020-90, s. 1.6, made the amendment of subdivision (a)(3) of this section by Session Laws 2020-90, s. 1.5, effective July 2, 2020, and applicable to contracts entered into on or after that date.

Effect of Amendments. - Session Laws 2013-73, s. 1, effective June 12, 2013, added subsection headings to subsections (a) and (b); added subsections (a1) and (c); and, in subsection (a), substituted "subsection" for "section" in the last sentence of subdivision (a)(3), and deleted subdivision (a)(4).

Session Laws 2020-90, s. 1.5, deleted "the vendor is listed on the State's qualified products list" preceding "and the vendor" in the last sentence of subdivision (a)(3). For effective date and applicability, see editor's note.

§ 143-58. Contracts contrary to provisions of Article made void.

If any department, institution or agency of the State government, required by this Article and the rules adopted pursuant thereto applying to the purchase or lease of supplies, materials, equipment, printing or services through the Secretary of Administration, or any nonstate institution, agency or instrumentality duly authorized or required to make purchases through the Department of Administration, shall contract for the purchase or lease of such supplies, materials, equipment, printing or services contrary to the provisions of this Article or the rules made hereunder, such contract shall be void and of no effect. If any such State or nonstate department, institution, agency or instrumentality purchases any supplies, materials, equipment, printing or services contrary to the provisions of this Article or the rules made hereunder, the executive officer of such department, institution, agency or instrumentality shall be personally liable for the costs thereof.

History

(1931, c. 261, s. 9; 1957, c. 269, s. 3; 1971, c. 587, s. 1; 1975, c. 879, s. 46; 1977, c. 148, s. 3; 1987, c. 827, s. 217.)

Editor's Note. - As to exemption of the Department of Transportation from the provisions of this section for the purpose of entering into contracts with respect to the development of a "Congestion Avoidance and Reduction for Autos and Trucks (CARAT)" system of traffic management for the greater Charlotte-Mecklenburg urban areas, see Session Laws 1991 (Reg. Sess., 1992), c. 900, s. 94, Session Laws 1993, c. 321, s. 162, Session Laws 1995, c. 324, s. 18.14, and Session Laws 1997-443, s. 32.11.

§ 143-58.1. Unauthorized use of public purchase or contract procedures for private benefit.

1. It shall be unlawful for any person, by the use of the powers, policies or procedures described in this Article or established hereunder, to purchase, attempt to purchase, procure or attempt to procure any property or services for private use or benefit.
2. This prohibition shall not apply if:
   1. The department, institution or agency through which the property or services are procured had theretofore established policies and procedures permitting such purchases or procurement by a class or classes of persons in order to provide for the mutual benefit of such persons and the department, institution or agency involved, or the public benefit or convenience; and
   2. Such policies and procedures, including any reimbursement policies, are complied with by the person permitted thereunder to use the purchasing or procurement procedures described in this Article or established thereunder.
3. A violation of this section is a Class 1 misdemeanor.

History

(1983, c. 409; 1993, c. 539, s. 1004; 1994, Ex. Sess., c. 24, s. 14(c).)

§ 143-58.2. State policy; bid procedures and specifications; identification of products.

1. It is the policy of this State to encourage and promote the purchase of products with recycled content. All State departments, institutions, agencies, community colleges, and local school administrative units shall, to the extent economically practicable, purchase and use, or require the purchase and use of, products with recycled content.
2. No later than January 1, 1995, the Secretary of Administration and each State department, institution, agency, community college, and local school administrative unit authorized to purchase materials and supplies or to contract for services shall review and revise its bid procedures and specifications for the purchase or use of materials and supplies to eliminate any procedures and specifications that explicitly discriminate against materials and supplies with recycled content, except where procedures and specifications are necessary to protect the health, safety, and welfare of the citizens of this State.
3. The Secretary of Administration and each State department, institution, agency, community college, and local school administrative unit shall review and revise its bid procedures and specifications on a continuing basis to encourage the purchase or use of materials and supplies with recycled content and to the extent economically practicable, the use of materials and supplies with recycled content.
4. The Department of Administration, in cooperation with the Division of Environmental Assistance and Outreach of the Department of Environmental Quality, shall identify materials and supplies with recycled content that meet appropriate standards for use by State departments, institutions, agencies, community colleges, and local school administrative units.
5. A list of materials and supplies with recycled content that are identified pursuant to subsection (d) of this section and that are available for purchase under a statewide term contract shall be distributed annually to each State agency authorized to purchase materials and supplies for use by its departments, institutions, agencies, community colleges, or local school administrative units.
6. Repealed by Session Laws 2009-484, s. 15, effective January 1, 2010.
7. The Department of Administration and the Department of Environmental Quality shall develop guidelines for minimum content standards for materials and supplies with recycled content and may recommend appropriate goals in addition to those goals set forth in G.S. 143-58.3, for types of materials and supplies with recycled content to be purchased by the State.
8. The Secretary of Administration may adopt rules to implement the provisions of this section and G.S. 143-58.3.

History

(1993, c. 256, s. 2; 1995 (Reg. Sess., 1996), c. 743, ss. 10, 11; 1997-443, s. 11A.119(a); 2001-452, s. 3.7; 2009-484, s. 15; 2010-31, s. 13.1(f); 2015-241, s. 14.30(u).)

Editor's Note. - Session Laws 2008-201, s. 1, provides: "The North Carolina Department of Administration, Division of Purchase and Contract, is directed to make the following changes to its Request for Proposal criteria for a statewide tire retread contract:

"(1) Require that the bids remain closed until a designated and advertised bid-opening day in which the bids are opened, announced, and recorded in public. The bids shall then be shown and made available to the public.

"(2) Require that the cost of the tire retread include spot repairs and that there no longer be a separate charge for a spot repair.

"(3) Include in the contract that all casings receive a state-of-the-art inspection with the use of shearography, ultrasound, electrostatic discharge, high pressure testing, or other industry standard testing methodology.

"(4) Include a threshold for the number of times a casing may be retreaded.

"(5) Include a threshold for the age of a casing that may be retreaded.

"(6) Include the number of nail hole repairs that are permissible for a casing to be retreaded.

"(7) Provide assurance that a particular fleet will receive its own casings back after retread completed.

"(8) Set minimum tread depths per category or application of the retread tire.

"(9) Consider a multiaward contract structure that includes several vendors; the Office of Purchase and Contract will take into account geographic location, proximity of vendor to customer, and the needs of the users when creating a multiaward contract.

"(10) Provide for any method of tire retreading to be bid separately."

Session Laws 2009-484, s. 15, effective January 1, 2010, repealed subsection (f), pertaining to annual reports to the Division of Pollution Prevention and Environmental Assistance of the Department of Environment and Natural Resources.

Effect of Amendments. - Session Laws 2010-31, s. 13.1(f), effective July 1, 2010, substituted "Division of Environmental Assistance and Outreach" for "Division of Pollution Prevention and Environmental Assistance [now the Division of Environmental Assistance and Outreach]" in subsection (d).

Session Laws 2015-241, s. 14.30(u), effective July 1, 2015, substituted "Department of Environmental Quality" for "Department of Environment and Natural Resources" in subsections (d) and (g).

§ 143-58.3. Purchase of recycled paper and paper products; goals.

In furtherance of the State policy, it is the goal of the State that each department, institution, agency, community college, and local school administrative unit purchase paper and paper products with recycled content according to the following schedule:

1. At least ten percent (10%) by June 30, 1994;
2. At least twenty percent (20%) by June 30, 1995;
3. At least thirty-five percent (35%) by June 30, 1996; and
4. At least fifty percent (50%) by June 30, 1997, and the end of each subsequent fiscal year,

of the total amount spent for the purchase of paper and paper products during that fiscal year.

History

(1993, c. 256, s. 2.)

§ 143-58.4. Energy credit banking and selling program.

1. The following definitions apply in this section:
   1. AFV. - A hybrid electric vehicle that derives its transportation energy from gasoline and electricity. AFV also means an original equipment manufactured vehicle that operates on compressed natural gas, propane, or electricity.
   2. Alternative fuel. - Biodiesel, biodiesel blend, ethanol, compressed natural gas, propane, and electricity used as a transportation fuel in blends or in a manner as defined by the Energy Policy Act.
   3. B-20. - A blend of twenty percent (20%) by volume biodiesel fuel and eighty percent (80%) by volume petroleum-based diesel fuel.
   4. Biodiesel. - A fuel comprised of mono-alkyl esters of long fatty acids derived from vegetable oils or animal fats, designated B100 and meeting the requirements of the American Society for Testing and Materials (ASTM) D-6751.
   5. Biodiesel blend. - A blend of biodiesel fuel with petroleum-based diesel fuel, designated BXX where XX represents the percentage of volume of fuel in the blend meeting the requirements of ASTM D-6751.
   6. Department. - The Department of Environmental Quality.
   7. Energy Policy Act. - The federal Energy Policy Act of 1992, Pub. L. No. 102-486, 106 Stat. 2782, 42 U.S.C. § 13201, et seq.
   8. EPAct credit. - A credit issued pursuant to the Energy Policy Act.
   9. E-85. - A blend of eighty-five percent (85%) by volume ethanol and fifteen percent (15%) by volume gasoline.
   10. Incremental fuel cost. - The difference in cost between an alternative fuel and conventional petroleum fuel at the time the fuel is purchased.
   11. Incremental vehicle cost. - The difference in cost between an AFV and conventional vehicle of the same make and model. For vehicles with no comparable conventional model, incremental vehicle cost means the generally accepted difference in cost between an AFV and a similar conventional model.
2. Establish Program. - The State Energy Office of the Department, in cooperation with State departments, institutions, and agencies, shall establish and administer an energy credit banking and selling program to allow State departments, institutions, and agencies to use moneys generated by the sale of EPAct credits to purchase alternative fuel, develop alternative fuel refueling infrastructure, and purchase AFVs for use by State departments, institutions, and agencies. Each State department, institution, and agency shall provide the State Energy Office with all vehicle fleet information necessary to determine the number of EPAct credits generated annually by the State. The State Energy Office may sell credits in any manner that is in accordance with the provisions of the Energy Policy Act.
3. Adopt Rules. - The Secretary of Environmental Quality shall adopt rules as necessary to implement this section.

History

(2005-413, s. 1; 2009-237, s. 1; 2009-446, s. 1(g), (h); 2013-360, s. 15.22(n); 2015-241, s. 14.30(u), (v).)

Effect of Amendments. - Session Laws 2009-237, s. 1, effective July 1, 2009, in subsection (a), in the introductory language, substituted "The following definitions apply" for "As used"; in subdivision (a)(2), inserted "biodiesel blend"; added subdivisions (a)(3a) and (a)(3b); and made stylistic and punctuation changes throughout.

Session Laws 2009-446, s. 1(g) and (h), effective August 7, 2009, substituted "Commerce" for "Administration" in subdivision (a)(4) and subsection (c).

Session Laws 2013-360, s. 15.22(n), effective July 1, 2013, substituted "The Department of Environment and Natural Resources" for "Commerce" in subdivision (a)(4); and substituted "Environment and Natural Resources" for "Commerce" in subsection (c).

Session Laws 2015-241, s. 14.30(u), (v), effective July 1, 2015, substituted "Department of Environmental Quality" for "Department of Environment and Natural Resources" in subdivision (a)(4); and substituted "Secretary of Environmental Quality" for "Secretary of Environment and Natural Resources" in subsection (c).

§ 143-58.5. Alternative Fuel Revolving Fund.

1. The definitions set out in G.S. 143-58.4 apply to this section.
2. The Alternative Fuel Revolving Fund is created and shall be held by the State Treasurer. The Fund shall consist of moneys received from the sale of EPAct credits under G.S. 143-58.4, any moneys appropriated to the Fund by the General Assembly, and any moneys obtained or accepted by the Department for deposit into the Fund. The Fund shall be managed to maximize benefits to the State for the purchase of alternative fuel, related refueling infrastructure, and AFV purchases. To the extent possible, benefits from the sale of EPAct credit shall be distributed to State departments, institutions, and agencies in proportion to the number of EPAct credits generated by each. No portion of the Fund shall be transferred to the General Fund, and any appropriation made to the Fund shall not revert. The State Treasurer shall invest moneys in the Fund in the same manner as other funds are invested. Interest and moneys earned on such investments shall be credited to the Fund.
3. The Fund shall be used to offset the incremental fuel cost of biodiesel and biodiesel blend fuel with a minimum biodiesel concentration of B-20 for use in State vehicles, for the purchase of ethanol fuel with a minimum ethanol concentration of E-85 for use in State vehicles, the incremental vehicle cost of purchasing AFVs, for the development of related refueling infrastructure, for the costs of administering the Fund, and for projects approved by the Energy Policy Council.
4. The Secretary of Environmental Quality shall adopt rules as necessary to implement this section.
5. The Department shall submit to the Joint Legislative Oversight Committee on Agriculture and Natural and Economic Resources and the Fiscal Research Division no later than October 1 of each year a report on the expenditures from the Fund during the preceding fiscal year.

History

(2005-413, s. 1; 2009-237, s. 2; 2017-57, s. 14.1(a); 2017-102, s. 20.1(a).)

Editor's Note. - Session Laws 2017-102, s. 20.1(b), provides: "The Codifier of Rules shall make any conforming rule changes necessary to reflect name changes and any recodifications resulting from the name change made by this section."

Effect of Amendments. - Session Laws 2009-237, s. 1, effective July 1, 2009, inserted "and biodiesel blend" in subsection (c).

Session Laws 2017-57, s. 14.1(a), effective July 1, 2017, substituted "Joint Legislative Oversight Committee on Agriculture and Natural and Economic Resources" for "Joint Legislative Commission on Governmental Operations" in subsection (e).

Session Laws 2017-102, s. 20.1(a), effective July 12, 2017, substituted "Environmental Quality" for "Administration" in subsection (d), and "October 1" for "1 October" in subsection (e).

§ 143-58.6. Specifications for use of coal combustion products.

1. State Construction Office to Develop Technical Specifications. - The State Construction Office shall develop recommended technical specifications for the use of coal combustion products that may be utilized in any construction by all State departments, institutions, agencies, community colleges, and local school administrative units, other than the Department of Transportation. The technical specifications shall address all products used in construction, including, but not limited to, the use of coal combustion products in concrete and cement products and in construction fill.
2. Department of Transportation to Develop Technical Specifications. - The Department of Transportation shall develop recommended technical specifications for the use of coal combustion products that may be utilized in any construction by the Department of Transportation. The technical specifications shall address all products used in construction, including, but not limited to, the use of coal combustion products in concrete and cement products and in construction fill.
3. Specification Factors. - The State Construction Office and the Department of Transportation shall consider safety, best practice engineering standards, quality, cost, and availability of an in-State source of coal combustion products in developing the recommended technical specifications pursuant to this section.
4. Consultation. - The State Construction Office and the Department of Transportation shall consult with each other in the development of the recommended technical specifications pursuant to the provisions of this section in order to ensure that the recommended technical standards are uniform for similar types of construction. The goal of the Department of Administration and the Department of Transportation shall be to increase the usage and consumption of coal combustion products in their respective construction projects.
5. Report of Recommended Specifications. - The State Construction Office and the Department of Transportation shall report the recommended technical specifications developed pursuant to this section to the Environmental Review Commission and the Joint Legislative Transportation Oversight Committee on or before February 1, 2015.

History

(2014-122, s. 16.)

§ 143-58.7. Contracts with Conservation Corps North Carolina.

State departments, institutions, and agencies may contract with the Conservation Corps North Carolina to perform trail construction and maintenance, invasive species removal, and other conservation projects in State parks, State forests, and other State-owned facilities where the projects provide direct public benefits to the citizens of the State and offer youth and young adults of the State a structured program that connects them to natural resources and teaches job skills, leadership, community service, and personal responsibility. Contracts under this section are exempt from the competitive bidding procedures described in this Article and the rules adopted under it.

History

(2017-57, s. 14.12; 2019-138, s. 3.)

Editor's Note. - At the direction of the Revisor of Statutes, "North Carolina" was added at the end of the catchline to conform to Session Laws 2019-138.

Effect of Amendments. - Session Laws 2019-138, s. 3, effective July 19, 2019, deleted "Youth" preceding "Conservation Corps" in the section heading; and substituted "Conservation Corps North Carolina" for "North Carolina Youth Conservation Corp" in the first sentence.

§ 143-59. Preference given to North Carolina products and citizens, and articles manufactured by State agencies; reciprocal preferences.

1. Preference. - The Secretary of Administration and any State agency authorized to purchase foodstuff or other products, shall, in the purchase of or in the contracting for foods, supplies, materials, equipment, printing or services give preference as far as may be practicable to such products or services manufactured or produced in North Carolina or furnished by or through citizens of North Carolina: Provided, however, that in giving such preference no sacrifice or loss in price or quality shall be permitted; and provided further, that preference in all cases shall be given to surplus products or articles produced and manufactured by other State departments, institutions, or agencies which are available for distribution.
2. Reciprocal Preference. - For the purpose only of determining the low bidder on all contracts for equipment, materials, supplies, and services valued over twenty-five thousand dollars ($25,000), a percent of increase shall be added to a bid of a nonresident bidder that is equal to the percent of increase, if any, that the state in which the bidder is a resident adds to bids from bidders who do not reside in that state. Any amount due under a contract awarded to a nonresident bidder shall not be increased by the amount of the increase added by this subsection. On or before January 1 of each year, the Secretary of Administration shall electronically publish a list of states that give preference to in-State bidders and the amount of the percent increase added to out-of-state bids. All departments, institutions, and agencies of the State shall use this list when evaluating bids. If the reciprocal preference causes the nonresident bidder to no longer be the lowest bidder, the Secretary of Administration may waive the reciprocal preference. In determining whether to waive the reciprocal preference, the Secretary of Administration shall consider factors that include competition, price, product origination, and available resources.
3. Definitions. - The following definitions apply in this section:
   1. Resident bidder. - A bidder that has paid unemployment taxes or income taxes in this State and whose principal place of business is located in this State.
   2. Nonresident bidder. - A bidder that is not a resident bidder as defined in subdivision (1) of this subsection.
   3. Principal place of business. - The principal place from which the trade or business of the bidder is directed or managed.
4. Exemptions. - Subsection (b) of this section shall not apply to contracts entered into under G.S. 143-53(a)(5) or G.S. 143-57.
5. When a contract is awarded by the Secretary using the provisions of subsection (b) of this section, a report of the nature of the contract, the bids received, and the award to the successful bidder shall be posted on the Internet as soon as practicable.
6. Resident Bidder Notification. - When the Secretary puts a contract up for competitive bidding, the Secretary shall endeavor to provide notice to all resident bidders who have expressed an interest in bidding on contracts of that nature. The Secretary may opt to provide notice under this section by electronic means only.

History

(1931, c. 261, s. 10; 1933, c. 441, s. 2; 1957, c. 269, s. 3; 1971, c. 587, s. 1; 1975, c. 879, s. 46; 2001-240, s. 1; 2005-213, ss. 1, 3; 2013-234, s. 9.)

Editor's Note. - Session Laws 2001-240, s. 2, provides: "The Secretary of Administration may adopt temporary rules to implement this act."

Session Laws 2001-240, s. 1, as amended by Session Laws 2005-213, s. 1, effective January 1, 2002, added "reciprocal preferences" to the section catchline; added the subsection (a) designation; added "Preference. - " at the beginning of subsection (a); and added subsections (b) through (e).

Session Laws 2013-234, s. 11, provides: "The Department of Administration shall provide an individualized notice to the following State entities to ensure that the entities are aware of how the statutory amendments made in S.L. 2010-194, Section 15 of S.L. 2011-326, and this act apply to them:

"(1) The North Carolina State Lottery Commission, which is subject to G.S. 18C-150.

"(2) The Commissioner of Banks, who is subject to G.S. 53-320(d), 53-326(d), 53-391, and 53-401.

"(3) The Commissioner of Insurance, who is subject to G.S. 53-401, 58-33-30(e)(4) and (5), 58-33-125(e), 58-33-130(a), and 58-71-40(d).

"(4) The Global TransPark Authority, which is subject to G.S. 63A-24. The Secretary of Transportation shall be copied on the notice sent to the Global TransPark Authority.

"(5) The North Carolina State Bar Council, which is subject to G.S. 84-23(d).

"(6) The North Carolina Board for Licensing of Geologists, which is subject to G.S. 89E-5(e).

"(7) The North Carolina Board for Licensing of Soil Scientists, which is subject to G.S. 89F-5(d).

"(8) The constituent institutions of The University of North Carolina, which are subject to G.S. 114-8.3(b). For notification under this subdivision, the Department of Administration may provide The University of North Carolina system a notification to distribute to all of its constituent institutions. If the Department of Administration does so, The University of North Carolina system shall distribute those notifications to the system's constituent institutions.

"(9) The North Carolina Center for Applied Textile Technology, which is subject to G.S. 115D-67.4.

"(10) The North Carolina State Health Plan for Teachers and State Employees, which is subject to G.S. 135-48.33(b).

"(11) The Department of Transportation, which is subject to G.S. 136-28.1(h) and G.S. 143-134(b).

"(12) The North Carolina Turnpike Authority, which is subject to G.S. 136-89.194(g)(1). The Secretary of Transportation shall be copied on the notice sent to the Turnpike Authority.

"(13) The Department of Health and Human Services, which is subject to G.S. 143-48.1(c).

"(14) The Division of Adult Correction of the Department of Public Safety, which is subject to G.S. 143-134(b). The Secretary of Public Safety shall be copied on the notice sent to the Division of Adult Correction.

"(15) The North Carolina Code Officials Qualification Board, which is subject to G.S. 143-151.16(d). The Commissioner of Insurance shall be copied on the notice sent to the Code Officials Qualification Board.

"(16) The Roanoke Island Commission, which is subject to G.S. 143B-131.2(b)(15). The Secretary of Cultural Resources shall be copied on the notice sent to the Roanoke Island Commission.

"(17) Any other State entity subject to contract review under G.S. 114-8.3.

"The Department of Administration, as part of its notice, shall provide a means by which an entity may acknowledge receipt and understanding of the notice. If the Department of Administration has not received an acknowledgement from a State entity within 30 days of sending the notice, the Department of Administration shall send a second notice. If the Department of Administration has not received an acknowledgement from a State entity within 30 days of sending the second notice, the Department of Administration shall notify (i) the Joint Legislative Program Evaluation Oversight Committee and (ii) the House Appropriations Subcommittee on General Government and the Senate Appropriations Committee on General Government and Information Technology."

Effect of Amendments. - Session Laws 2001-240, s. 1, as amended by Session Laws 2005-213, s. 1, effective January 1, 2002, added the subsection (a) designation; added "Preference. - " at the beginning of subsection (a); and added subsections (b) through (e).

Session Laws 2005-213, ss. 1 and 3, effective January 1, 2006, deleted the expiration date of December 13, 2007, and added subsection (f).

Session Laws 2013-234, s. 9, effective July 3, 2013, in subsection (b), deleted "after consultation with the Board of Awards" following "Secretary of Administration" in the fifth sentence, and deleted "and the Board of Awards" following "Secretary of Administration" in the sixth sentence.

§ 143-59.1. Contracts with certain foreign vendors.

1. Ineligible Vendors. - The Secretary of Administration, State Chief Information Officer, and other entities to which this Article applies shall not contract for goods or services with either of the following:
   1. A vendor if the vendor or an affiliate of the vendor if the Secretary of Revenue has determined that the vendor or affiliate of the vendor meets one or more of the conditions of G.S. 105-164.8(b) but refuses to collect the use tax levied under Article 5 of Chapter 105 of the General Statutes on its sales delivered to North Carolina. The Secretary of Revenue shall provide the Secretary of Administration periodically with a list of vendors to which this section applies.
   2. A vendor if the vendor or an affiliate of the vendor incorporates or reincorporates in a tax haven country after December 31, 2001, but the United States is the principal market for the public trading of the stock of the corporation incorporated in the tax haven country.
2. Vendor Certification. - The Secretary of Administration shall require each vendor submitting a bid or contract to certify that the vendor is not an ineligible vendor as set forth in subsection (a) of this section. Any person who submits a certification required by this subsection known to be false shall be guilty of a Class I felony.
3. Definitions. - The following definitions apply in this section:
   1. Affiliate. - As defined in G.S. 105-163.010.
   2. Tax haven country. - Means each of the following: Barbados, Bermuda, British Virgin Islands, Cayman Islands, Commonwealth of the Bahamas, Gibraltar, Isle of Man, the Principality of Monaco, and the Republic of the Seychelles.

History

(1999-341, s. 7; 2002-189, s. 6; 2003-413, s. 28; 2012-79, s. 2.14; 2015-241, s. 7A.4(r).)

Effect of Amendments. - Session Laws 2012-79, s. 2.14, effective June 26, 2012, inserted "if the Secretary of Revenue has determined that the vendor or affiliate of the vendor" in subdivision (a)(1).

Session Laws 2015-241, s. 7A.4(r), effective September 18, 2015, substituted "Administration, State Chief Information Officer" for "Administration" in the introductory paragraph of subsection (a).

§ 143-59.1A. Preference given to products made in United States.

If the Secretary of Administration or a State agency cannot give preference to North Carolina products or services as provided in G.S. 143-59, the Secretary or State agency shall give preference, as far as may be practicable and to the extent permitted by State law, federal law, and federal treaty, to products or services manufactured or produced in the United States. Provided, however, that in giving such preference no sacrifice or loss in price or quality shall be permitted; and provided further, that preference in all cases shall be given to surplus products or articles produced and manufactured by other State departments, institutions, or agencies which are available for distribution.

History

(2004-124, s. 6.1.)

§ 143-59.2. Certain vendors prohibited from contracting with State.

1. Ineligible Vendors. - A vendor is not entitled to enter into a contract for goods or services with any department, institution, or agency of the State government subject to the provisions of this Article if any officer or director of the vendor, or any owner if the vendor is an unincorporated business entity, within 10 years immediately prior to the date of the bid solicitation, has been convicted of any violation of Chapter 78A of the General Statutes or the Securities Act of 1933 or the Securities Exchange Act of 1934.
2. Vendor Certification. - The Secretary of Administration shall require each vendor submitting a bid or contract to certify that none of its officers, directors, or owners of an unincorporated business entity has been convicted of any violation referenced in subsection (a) of this section within 10 years immediately prior to the date of the bid solicitation. Any person who submits a certification required by this subsection known to be false shall be guilty of a Class I felony.
3. Void Contracts. - A contract entered into in violation of this section is void. A contract that is void under this section may continue in effect until an alternative can be arranged when: (i) immediate termination would result in harm to the public health or welfare, and (ii) the continuation is approved by the Secretary of Administration. Approval of continuation of contracts under this subsection shall be given for the minimum period necessary to protect the public health or welfare.

History

(2002-189, s. 5.)

§ 143-59.3. Contracts for the purchase of reconstituted or recombined fluid milk products prohibited.

1. As used in this section, "fluid milk product" has the same meaning as in 7 Code of Federal Regulations § 1000.15 (1 January 2003 Edition).
2. No department, institution, or agency of the State shall enter into any contract for the purchase of any fluid milk product that is labeled or that is required to be labeled as "reconstituted" or "recombined".
3. The Secretary of Administration may temporarily suspend the provisions of subsection (b) of this section in case of any emergency or pressing need as provided in G.S. 143-57.

History

(2003-367, s. 1.)

§ 143-59.4. Contracts performed outside the United States.

1. A vendor submitting a bid shall disclose in a statement, provided contemporaneously with the bid, where services will be performed under the contract sought, including any subcontracts, and whether any services under that contract, including any subcontracts, are anticipated to be performed outside the United States. Nothing in this section is intended to contravene any existing treaty, law, agreement, or regulation of the United States.
2. The Secretary of Administration shall retain the statements required by subsection (a) of this section regardless of the State entity that awards the contract and shall report annually to the Joint Legislative Commission on Governmental Operations on the number of contracts which are anticipated to be performed outside the United States.

History

(2005-169, s. 1.)

§ 143-60. Rules covering certain purposes.

The Secretary of Administration may adopt, modify, or abrogate rules covering the following purposes, in addition to those authorized elsewhere in this Article:

1. Requiring reports by State departments, institutions, or agencies of stocks of supplies and materials and equipment on hand and prescribing the form of such reports.
2. Prescribing the manner in which supplies, materials and equipment shall be delivered, stored and distributed.
3. Prescribing the manner of inspecting deliveries of supplies, materials and equipment and making chemicals and/or physical tests of samples submitted with bids and samples of deliveries to determine whether deliveries have been made in compliance with specifications. However, the provisions of this subdivision shall not apply to the constituent institutions of The University of North Carolina. The President of The University of North Carolina shall issue regulations or guidelines for the conducting of quality inspections by constituent institutions to ensure that deliveries have been made in compliance with specifications.
4. Prescribing the manner in which purchases shall be made in emergencies.
5. Providing for such other matters as may be necessary to give effect to foregoing rules and provisions of this Article.
6. Prescribing the manner in which passenger vehicles shall be purchased.

Further, the Secretary of Administration may prescribe appropriate procedures necessary to enable the State, its institutions and agencies, to obtain materials surplus or otherwise available from federal, State or local governments or their disposal agencies.

History

(1931, c. 261, s. 11; 1945, c. 145; 1957, c. 269, s. 3; 1961, c. 772; 1971, c. 587, s. 1; 1975, c. 879, s. 46; 1981, c. 268, s. 2; 1983, c. 717, ss. 67, 68; 1985 (Reg. Sess., 1986), c. 955, ss. 89, 90; 1987, c. 282, s. 27; c. 827, s. 217; 2006-203, s. 85; 2011-145, s. 9.6G(a).)

Editor's Note. - Session Laws 2006-203, s. 126, provides, in part: "Prosecutions for offenses committed before the effective date of this act [July 1, 2007] are not abated or affected by this act, and the statutes that would be applicable but for this act remain applicable to those prosecutions."

Effect of Amendments. - Session Laws 2011-145, s. 9.6G(a), effective October 1, 2011, added the last two sentences in subdivision (3).

§ 143-61: Repealed by Session Laws 1975, c. 879, s. 45.

§ 143-62. Law applicable to printing Supreme Court Reports not affected.

Nothing in this Article shall be construed as amending or repealing G.S. 7A-6(b), relating to the printing of the Supreme Court Reports, or in any way changing or interfering with the method of printing or contracting for the printing of the Supreme Court Reports as provided for in said section.

History

(1931, c. 261, s. 13; 1969, c. 44, s. 75; 1971, c. 587, s. 1.)

§ 143-63. Financial interest of officers in sources of supply; acceptance of bribes.

Neither the Secretary of Administration, nor any assistant of the Secretary's shall be financially interested, or have any personal beneficial interest, either directly or indirectly, in the purchase of, or contract for, any materials, equipment or supplies, nor in any firm, corporation, partnership or association furnishing any such supplies, materials or equipment to the State government, or any of its departments, institutions or agencies, nor shall such Secretary, assistant, or member of the Commission accept or receive, directly or indirectly, from any person, firm or corporation to whom any contract may be awarded, by rebate, gifts or otherwise, any money or anything of value whatsoever, or any promise, obligation or contract for future reward or compensation. Any violation of this section shall be deemed a Class F felony. Upon conviction thereof, any such Secretary or assistant shall be removed from office.

History

(1931, c. 261, s. 15; 1957, c. 269, s. 3; 1971, c. 587, s. 1; 1975, c. 879, s. 46; 1983, c. 717, s. 81; 1993, c. 539, s. 1311; 1994, Ex. Sess., c. 24, s. 14(c); 2006-203, s. 86.)

Editor's Note. - Session Laws 2006-203, s. 126, provides, in part: "Prosecutions for offenses committed before the effective date of this act [July 1, 2007] are not abated or affected by this act, and the statutes that would be applicable but for this act remain applicable to those prosecutions."

§ 143-63.1. Sale, disposal and destruction of firearms.

1. Except as hereinafter provided, it shall be unlawful for any employee, officer or official of the State in the exercise of his official duty to sell or otherwise dispose of any pistol, revolver, shotgun or rifle to any person, firm, corporation, county or local governmental unit, law-enforcement agency, or other legal entity.
2. It shall be lawful for the Department of Administration, in the exercise of its official duty, to sell any weapon described in subsection (a) hereof, to any county or local governmental unit, law-enforcement agency in the State; provided, however, that such law-enforcement agency files a written statement, duly notarized, with the seller of said weapon certifying that such weapon is needed in law enforcement by such law-enforcement agency.
3. All weapons described in subsection (a) hereof which are not sold as herein provided within one year of being declared surplus property shall be destroyed by the Department of Administration.
4. Notwithstanding the provisions of this section, but subject to the provisions of G.S. 20-187.2, the North Carolina State Highway Patrol, the North Carolina Division of Adult Correction and Juvenile Justice of the Department of Public Safety, the Alcohol Law Enforcement Division of the Department of Public Safety, and the North Carolina State Bureau of Investigation may sell, trade, or otherwise dispose of any or all surplus weapons they possess to any federally licensed firearm dealers. The sale, trade, or disposal of these weapons shall be in a manner prescribed by the Department of Administration. Any moneys or property obtained from the sale, trade, or disposal shall go to the general fund.

History

(1973, c. 666, ss. 1-3; 1975, c. 879, s. 46; 1981, c. 604; 1981 (Reg. Sess., 1982), c. 1282, s. 52; 2011-145, s. 19.1(h); 2017-186, s. 2(zzzzz); 2019-203, s. 10.)

Effect of Amendments. - Session Laws 2011-145, s. 19.1(h), effective January 1, 2012, substituted "Division of Adult Correction of the Department of Public Safety" for "Department of Correction" in subsection (d).

Session Laws 2017-186, s. 2(zzzzz), effective December 1, 2017, inserted "and Juvenile Justice" in the first sentence of subsection (d).

Session Laws 2019-203, s. 10, effective October 1, 2019, inserted "the Alcohol Law Enforcement Division of the Department of Public Safety" in the first sentence of subsection (d).

Opinions of Attorney General

Section 20-187.2(a) Not Affected. - See opinion of Attorney General to Mr. R.D. McMillan, Jr., State Purchasing Officer, 43 N.C.A.G. 58 (1973), issued prior to enactment of subsection (d) of this section.

§ 143-63.2. Purchase of tires for State vehicles; repair or refurbishment of tires for State vehicles.

1. Definitions. - The following terms apply in this section:
   1. Critical tire information. - Tire brand name, tire line name, tire identification numbers, load and pressure markings, tire size designation, service descriptions such as load and speed ratings, and other information and specifications placed on the original tire sidewall by the original tire manufacturer.
   2. State vehicle. - Any vehicle owned, rented, or leased by the State, or an institution, department, or agency of the State, that is driven on a public road consistently at speeds greater than 30 miles per hour.
2. Forensic Tire Standards. - In order to preserve critical tire information, the Secretary of Administration and any institution, department, or agency of the State shall only procure and install tires for State vehicles that possess the original, unaltered, and uncovered tire sidewall. Furthermore, neither the Secretary of Administration nor any institution, department, or agency of the State shall execute a contract for the repair or refurbishment of tires for State vehicles that provides for the removal, covering, or other alteration in any manner of the critical tire information contained on the original tire sidewall.
3. Tire Purchase and Contract Standards Applicability. - All contracts for the purchase, repair, or refurbishment of tires for State vehicles, or contracts for the purchase of products or services related to the repair or refurbishment of tires for State vehicles, executed on or after the date this section becomes effective shall comply with the provisions of this section.
4. Exemption. - Notwithstanding the provisions of this section, the State or any institution, department, or agency of the State that owns or has a legally binding contract in place for the future purchase of tires having altered or covered sidewalls prior to the date that this section becomes effective shall perform its existing contractual obligations related thereto and may continue to use those tires on State vehicles for the useful life of the retreaded tire.

History

(2011-145, s. 28.36(a).)

Cross References. - As to purchase, repair, or refurbishment of tires for school buses, see G.S. 115C-249.1.

Editor's Note. - The definitions in subsection (a) were enacted by Session Laws 2011-145, s. 28.36(a), in reverse order, and were redesignated at the direction of the Revisor of Statutes to preserve alphabetical order.

Session Laws 2011-145, s. 1.1, provides: "This act shall be known as the 'Current Operations and Capital Improvements Appropriations Act of 2011.'"

Session Laws 2011-145, s. 32.5, is a severability clause.

§ 143-64: Repealed by Session Laws 2012-89, s. 1, effective June 28, 2012.

History

(2003-284, s. 6.15(a); 2004-199, s. 38; repealed by 2012-89, s. 1, effective June 28, 2012.)

Editor's Note. - Former § 143-64 pertained to beverages contracts.

§ 143-64.01. Department of Administration designated State Surplus Property Agency.

The Department of Administration is designated as the State agency for State surplus property, and with respect to the acquisition of State surplus property the agency shall be subject to the supervision and direction of the Secretary of Administration.

History

(1991, c. 358, s. 2.)

Editor's Note. - Session Laws 1991, c. 358, s. 2 enacted this part as new Article 31A1, G.S. 143-64.9A et seq. It has been redesignated as Part I of Article 3A, G.S. 143-64.01 et seq. Former Article 3A, G.S. 143-64.1 through 143-64.5, has been redesignated as Part II of this Article.

§ 143-64.02. Definitions.

The following definitions apply in Part 1 of this Article:

1. Agency. - An existing department, institution, commission, committee, board, division, or bureau of the State.
2. Nonprofit tax exempt organizations. - The following entities certified by the Internal Revenue Service as tax-exempt nonprofit organizations under Section 501(c)(3) of the United States Internal Revenue Code of 1954: medical institutions, hospitals, clinics, health centers, school systems, schools, colleges, universities, schools for individuals with intellectual or other developmental disabilities, schools for individuals with physical disabilities, radio and television stations licensed by the Federal Communications Commission as educational radio or educational television stations, public libraries, civil defense organizations, and nonprofit entities that are qualified under rules adopted by the State Surplus Property Agency of the Department of Administration to refurbish computers and donate them to low-income students or households throughout the State.
3. Recyclable material. - A recyclable material, as defined in G.S. 130A-290, that the Secretary of Administration determines, consistent with G.S. 130A-309.14, to be a recyclable material.
4. State owned. - Supplies, materials, and equipment in the possession of the State of North Carolina and purchased with State funds, personal property donated to the State, or personal property purchased with other funds that give ownership to the State.
5. Surplus property. - Personal property that is no longer needed by a State agency.

History

(1991, c. 358, s. 2; 1998-223, s. 1; 2015-241, s. 27.3(e); 2017-67, s. 1(a); 2019-76, s. 24.)

Editor's Note. - Session Laws 2004-124, s. 12.5, provides: "Notwithstanding G.S. 143-64.02(1), the Wildlife Resources Commission is not subject to the payment of fees under G.S. 143-64.05 for the acquisition, receipt, warehousing, distribution, or transfer prior to July 20, 2004, of surplus property or for the transfer or sale prior to July 20, 2004, of recyclable material."

Session Laws 2004-124, s. 1.2, provides: "This act shall be known as 'The Current Operations and Capital Improvements Appropriations Act of 2004'."

Session Laws 2004-124, s. 33.3, provides: "Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2004-2005 fiscal year, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2004-2005 fiscal year."

Session Laws 2004-124, s. 33.5, contains a severability clause.

Session Laws 2017-67, s. 2, provides, in part: "Notwithstanding G.S. 150B-21.1A(a), an agency may adopt an emergency rule in accordance with G.S. 150B-21.1A to effectuate the provisions of this act." This Act amended subdivision (2), concerning nonprofit tax exempt organizations.

Session Laws 2019-76, s. 33, provides: "Parts I and II of this act do not affect the coverage, eligibility, rights, responsibilities, or provision of State or federal services or benefits for individuals who have been diagnosed with mental retardation and whose diagnosis has not been changed to a diagnosis of intellectual disability."

Session Laws 2019-76, s. 34, made the amendments by Session Laws 2019-76, s. 24 effective October 1, 2019, and applicable to proceedings commenced or services rendered on or after that date.

Effect of Amendments. - Session Laws 2015-241, s. 27.3(e), effective July 1, 2015, added subdivisions (4) and (5).

Session Laws 2017-67, s. 1(a), effective June 28, 2017, rewrote subdivision (2), which read: "Nonprofit tax exempt organizations' means those nonprofit tax exempt medical institutions, hospitals, clinics, health centers, school systems, schools, colleges, universities, schools for the mentally retarded, schools for the physically handicapped, radio and television stations licensed by the Federal Communications Commission as educational radio or educational television stations, public libraries, and civil defense organizations, that have been certified by the Internal Revenue Service as tax exempt nonprofit organizations under section 501(c)(3) of the United States Internal Revenue Code of 1954."

Session Laws 2019-76, s. 24, rewrote the introductory language, which formerly read: "As used in Part 1 of this Article, except where the context clearly requires otherwise"; in subdivision (2), substituted "individuals with intellectual or other developmental disabilities" for "the mentally retarded" and "individuals with physical disabilities" for "the physically handicapped"; and made stylistic changes. For effective date and applicability, see editor's note.

§ 143-64.03. Powers and duties of the State agency for surplus property.

1. The State Surplus Property Agency is authorized and directed to:
   1. Sell all State owned supplies, materials, and equipment that are surplus, obsolete, or unused and sell all seized vehicles and other conveyances that the State Surplus Property Agency is authorized to sell;
   2. Warehouse such property; and
   3. Distribute such property to tax-supported or nonprofit tax-exempt organizations.
2. The State Surplus Property Agency is authorized and empowered to act as a clearinghouse of information for agencies and private nonprofit tax-exempt organizations, to locate property available for acquisition from State agencies, to ascertain the terms and conditions under which the property may be obtained, to receive requests from agencies and private nonprofit tax-exempt organizations, and transmit all available information about the property, and to aid and assist the agencies and private nonprofit tax-exempt organizations in transactions for the acquisition of State surplus property. When distributing computer equipment to nonprofit entities that refurbish computers and donate them to low-income students or households in this State, the State Surplus Property Agency must give consideration to the counties where the computer equipment will be donated to ensure that all geographic regions of the State benefit from the distributions.
3. The State agency for surplus property, in the administration of Part 1 of this Article, shall cooperate to the fullest extent consistent with the provisions of Part 1 of this Article, with the departments or agencies of the State.
4. The State agency for surplus property may sell or otherwise dispose of surplus property, including motor vehicles, through an electronic auction service.

History

(1991, c. 358, s. 2; 2003-284, s. 18.6(a); 2015-241, s. 27.3(f); 2017-67, s. 1(b).)

Editor's Note. - Session Laws 2017-67, s. 2, provides, in part: "Notwithstanding G.S. 150B-21.1A(a), an agency may adopt an emergency rule in accordance with G.S. 150B-21.1A to effectuate the provisions of this act." This Act amended subsection (b), concerning the distribution of computer equipment to nonprofit organizations.

Session Laws 2019-199, s. 6(a)-(d), provides: "(a) Pilot Program to Streamline North Carolina Department of Transportation (NCDOT) Surplus Property Auctions. - No later than October 1, 2019, the State agency for State surplus property shall establish a pilot program for disposing of NCDOT surplus property, including motor vehicles and equipment, by live public auction and via live simulcast or electronic means in accordance with subsection (b) of this section without requiring the movement of NCDOT surplus property. The NCDOT shall cooperate with the State agency for State surplus property and the auctioneer selected pursuant to this pilot program. In implementing this pilot program, the State agency for State surplus property shall prepare a request for proposal pursuant to subsection (b) of this section for three public auctions conducted by a private licensed auctioneer during this pilot program. No auctions pursuant to this program shall be held after December 31, 2021, and the pilot program shall terminate upon submission of its report as required by subsection (d) of this section.

"(b) By December 1, 2019, the State agency for State surplus property shall issue a request for proposal (RFP) for the sale of North Carolina Department of Transportation (NCDOT) surplus property, including titled and nontitled equipment and motor vehicles owned by the NCDOT, at live public auction and via live simulcast or other electronic means without requiring surplus property movement to a centralized auction location. The State agency for State surplus property shall consult with the NCDOT and group the various Department Highway Divisions into three regions for the purposes of determining the live public auction locations based on surplus property distribution and storage locations. The NCDOT shall provide copies of the maintenance file, maintenance-related invoices or documents, and the preventive maintenance schedule for each item of equipment or motor vehicle being auctioned for inspection prior to auction. The State agency for State surplus property shall consult with the NCDOT to further determine (i) adequate staffing requirements to work with the auctioneer in conducting an auction, including staff who are knowledgeable about the surplus property, (ii) adequate arrangements to allow for the auctioneer to document by photograph or video, as appropriate, surplus property for auction, and (iii) adequate arrangements to allow members of the public access to NCDOT storage locations to inspect and view the surplus property to be auctioned. Net proceeds shall be credited to the State Highway Fund in accordance with G.S. 136-16. The RFP shall contain the following auctioneer requirements:

"(1) Must accept payment by any commercially reasonable manner. The auction company may charge credit card and platform fees of up to three percent (3%) of the highest and final bid.

"(2) Must have capability to conduct auctions via live simulcast or other electronic means in conjunction with conducting live auctions.

"(3) Must have capability to electronically document, via photographs and video, as appropriate, surplus property, equipment, and motor vehicles and make information electronically available for inspection prior to an auction.

"(4) Must remit the net proceeds from the auction to the NCDOT within 14 business days after the auction is completed. The auction company may offset up to one-fourth of one percent (0.25%) of the gross sale for advertisement cost reimbursement.

"(5) Must post a cash bond or equivalent guarantee in the amount of two hundred fifty thousand dollars ($250,000), made payable to the State of North Carolina.

"(6) Must have a minimum coverage of two million dollars ($2,000,000) in commercial general liability insurance.

"(7) Must agree to charge no commission to the State. The auction company may charge a buyer premium, not to exceed ten percent (10%) to the final and highest bid.

"(8) Must be a licensed auction company with a current and valid North Carolina Auctioneer license issued pursuant to Chapter 85B of the General Statutes. Preference shall be given to an auction company based in this State.

"(9) Must require that successful bidders provide and complete proper transfer documents for titled equipment or motor vehicles.

"(10) Must be capable of conducting live simulcast public auctions in regions as agreed upon by the NCDOT.

"(c) By June 1, 2020, the State agency for State surplus property shall review the proposals submitted and shall enter into a contract with the lowest responsible bidder who provides evidence satisfactory to the State agency for State surplus property that it meets the requirements of the RFP.

"(d) No later than March 1, 2022, the State agency for State surplus property shall report to the Joint Legislative Transportation Oversight Committee the results, findings, and legislative recommendations based on the results from the auctions during the pilot program. At a minimum, its report shall include information on the following:

"(1) The quantity and type of surplus property offered as part of each auction.

"(2) The details of each request for proposal and award of contract.

"(3) The results of the State surplus property public auctions, including details of each public auction, and the average ratio of sale price to estimated State surplus property value.

"(4) Other information the State agency for State surplus property deems necessary.”

Effect of Amendments. - Session Laws 2015-241, s. 27.3(f), effective July 1, 2015, rewrote subdivision (a)(1).

Session Laws 2017-67, s. 1(b), effective June 28, 2017, added the last sentence in subsection (b).

§ 143-64.04. Powers of the Secretary to delegate authority.

1. The Secretary of Administration may delegate to any employees of the State agency for surplus property such power and authority as he or they deem reasonable and proper for the effective administration of Part 1 of this Article.  The Secretary of Administration may, in his discretion, bond any person in the employ of the State agency for surplus property, handling moneys, signing checks, or receiving or distributing property from the United States under authority of Part 1 of this Article.
2. The Secretary of Administration may adopt rules necessary to carry out Part 1 of this Article.

History

(1991, c. 358, s. 2.)

§ 143-64.05. Service charge; receipts.

1. The State agency for surplus property may assess and collect a service charge (i) for the acquisition, receipt, warehousing, distribution, or transfer of any State surplus property; (ii) for the transfer or sale of recyclable material; and (iii) for the towing, storing, processing, maintaining, and selling of motor vehicles seized pursuant to G.S. 20-28.3. The service charge authorized by this subsection does not apply to the transfer or sale of timber on land owned by the Wildlife Resources Commission or the Department of Agriculture and Consumer Services.
2. All receipts from the transfer or sale of surplus, obsolete, or unused equipment of State departments, institutions, and agencies that are supported by appropriations from the General Fund, except where the receipts have been anticipated for or budgeted against the cost of replacements, shall be credited by the Secretary to the Office of State Treasurer as nontax revenue.
3. A department, institution, or agency may retain receipts derived from the transfer or sale of recyclable material, less any charge collected pursuant to subsection (a) of this section, and may use the receipts to defray the costs of its recycling activities. A contract for the transfer or sale of recyclable material to which a department, institution, or agency is a party shall not become effective until the contract is approved by the Secretary of Administration. The Secretary of Administration shall adopt rules governing the transfer or sale of recyclable material by a department, institution, or agency and specifying the conditions and procedures under which a department, institution, or agency may retain the receipts derived from the transfer or sale, including the appropriate allocation of receipts when more than one department, institution, or agency is involved in a recycling activity.

History

(1991, c. 358, s. 2; 1991 (Reg. Sess., 1992), c. 900, s. 24; 1998-223, s. 2; 2006-231, s. 3; 2007-323, s. 11.1; 2015-241, s. 27.3(g).)

Effect of Amendments. - Session Laws 2006-231, s. 3, effective August 10, 2006, substituted "Service charge; receipts" for "Definitions" in the section catchline; and added the last sentence in subsection (a).

Session Laws 2007-323, s. 11.1, effective July 1, 2007, added "or the Department of Agriculture and Consumer Services" at the end of the last sentence in subsection (a).

Session Laws 2015-241, s. 27.3(g), effective July 1, 2015, in subsection (a), added subdivision designations (a)(i) and (a)(ii), added subdivision (a)(iii), and made related changes.

§ 143-64.06. North Carolina State University may sell timber.

Notwithstanding any provision of this Part or Chapter 146 of the General Statutes, the Board of Trustees of North Carolina State University may cause to be severed and sold or transferred timber from any unimproved timberlands owned by or allocated to the University without involvement by the State Surplus Property Agency and without being required to pay any service charge or surcharge to the State Surplus Property Agency. Any such severance shall be reported to the Council of State through the State Property Office. The Board of Trustees may delegate the authority set out above to responsible University officials. The proceeds of any sales or transfers under this section shall be used to support the management of, and programming costs associated with, forest properties owned, allocated, or managed by North Carolina State University.

History

(2011-145, s. 9.6H.)

PART 2. STATE AGENCY FOR FEDERAL SURPLUS PROPERTY.

§ 143-64.1. Department of Administration designated State agency for federal surplus property.

The Department of Administration is hereby designated as the State agency for federal surplus property, and with respect to the acquisition of federal surplus property said agency shall be subject to the supervision and direction of the Secretary of Administration.

History

(1953, c. 1262, s. 1; 1957, c. 269, s. 3; 1975, c. 879, s. 46; 1991, c. 358, s. 3.)

State Government Reorganization. - The State agency for surplus property remains in the Department of Administration under G.S. 143B-368, enacted by Session Laws 1975, c. 879, which repealed former G.S. 143A-82.

Editor's Note. - Session Laws 1991, c. 358, s. 2 enacted a new Article 31A1, G.S. 143-64.9A et seq. It was redesignated as Part I of this Article, G.S. 143-64.01 et seq. Former Article 3A, G.S. 143-64.1 through 143-64.5, has been redesignated as Part II of this Article. References to "this Article" throughout former Article 3A have been changed to "Part 2 of this Article."

§ 143-64.2. Authority and duties of the State agency for federal surplus property.

1. The State agency for federal surplus property may do all of the following:
   1. Acquire from the United States of America such property, including equipment, materials, books, or other supplies under the control of any department or agency of the United States of America as may be usable and necessary for educational purposes, public health purposes, or civil defense purposes, including research.
   2. Warehouse the property.
   3. Distribute the property to tax-supported or nonprofit and tax-exempt (under Section 501(c)(3) of the United States Internal Revenue Code of 1954) medical institutions, hospitals, clinics, health centers, school systems, schools, colleges, universities, schools for individuals with intellectual or other developmental disabilities, schools for individuals with physical disabilities, radio and television stations licensed by the Federal Communications Commission as educational radio or educational television stations, public libraries, civil defense organizations, and such other eligible donees within the State as are permitted to receive surplus property of the United States of America under the Federal Property and Administrative Services Act of 1949, as amended.
2. The State agency for federal surplus property may adopt rules necessary to carry out Part 2 of this Article.
3. The State agency for federal surplus property may appoint advisory boards or committees as needed to ensure that Part 2 of this Article and the rules adopted under Part 2 of this Article are consistent with federal law concerning surplus property.
4. The State agency for surplus property may take such action, make such expenditures and enter into such contracts, agreements, and undertakings for and in the name of the State, require such reports and make such investigations as may be required by law or regulation of the United States of America in connection with the receipt, warehousing, and distribution of property received by the State agency for federal surplus property from the United States of America.
5. The State agency for federal surplus property may act as a clearinghouse of information for the public and private nonprofit institutions and agencies referred to in subsection (a) of this section, may locate property available for acquisition from the United States of America, may ascertain the terms and conditions under which the property may be obtained, may receive requests from the institutions and agencies and may transmit to them all available information in reference to the property, and may aid and assist the institutions and agencies in every way possible in transactions for the acquisition of federal surplus property.
6. The State agency for federal surplus property, in the administration of Part 2 of this Article, shall cooperate to the fullest extent consistent with the provisions of Part 2 of this Article, with the departments or agencies of the United States of America and shall make such reports in such form and containing such information as the United States of America or any of its departments or agencies may from time to time require, and it shall comply with the laws of the United States of America and the rules and regulations of any of the departments or agencies of the United States of America governing the allocation, transfer, use, or accounting for, property donable or donated to the State.

History

(1953, c. 1262, s. 2; 1965, c. 1105, ss. 1, 2; 1987, c. 827, s. 218; 1991, c. 358, s. 3; 2019-76, s. 25.)

Editor's Note. - Session Laws 2019-76, s. 33, provides: "Parts I and II of this act do not affect the coverage, eligibility, rights, responsibilities, or provision of State or federal services or benefits for individuals who have been diagnosed with mental retardation and whose diagnosis has not been changed to a diagnosis of intellectual disability."

Session Laws 2019-76, s. 34, made the amendments by Session Laws 2019-76, s. 25 effective October 1, 2019, and applicable to proceedings commenced or services rendered on or after that date.

Effect of Amendments. - Session Laws 2019-76, s. 25, rewrote this section. For effective date and applicability, see editor's note.

§ 143-64.3. Power of Department of Administration and Secretary to delegate authority.

The Department of Administration and/or the Secretary of Administration may delegate to any employees of the State agency for federal surplus property such power and authority as he or they deem reasonable and proper for the effective administration of Part 2 of this Article. The Department of Administration and/or the Secretary of Administration may, in his or their discretion, bond any person in the employ of the State agency for surplus property, handling moneys, signing checks, or receiving or distributing property from the United States under authority of Part 2 of this Article.

History

(1953, c. 1262, s. 3; 1957, c. 269, s. 3; 1975, c. 879, s. 46; 1991, c. 358, s. 3.)

§ 143-64.4. Warehousing, transfer, etc., charges.

The State agency for federal surplus property is hereby authorized and empowered to assess and collect service charges or fees for the acquisition, receipts, warehousing, distribution or transfer of any property acquired by donation from the United States of America for educational purposes, public health purposes, public libraries or civil defense purposes, including research, and any such charges made or fees assessed shall be limited to those reasonably related to the costs of care and handling in respect to the acquisition, receipts, warehousing, distribution or transfer of the property by the State agency for surplus property.

History

(1953, c. 1262, s. 4; 1965, c. 1105, s. 3; 1991, c. 358, s. 3.)

§ 143-64.5. Department of Agriculture and Consumer Services exempted from application of Article.

Notwithstanding any provisions or limitations of Part 2 of this Article, the North Carolina Department of Agriculture and Consumer Services is authorized and empowered to distribute food, surplus commodities and agricultural products under contracts and agreements with the federal government or any of its departments or agencies, and is authorized and empowered to adopt rules in order to conform with federal requirements and standards for such distribution and also for the proper distribution of such food, commodities and agricultural products. To the extent set forth above and in this section, the provisions of Part 2 of this Article shall not apply to the North Carolina Department of Agriculture and Consumer Services.

History

(1953, c. 1262, s. 5; 1987, c. 827, s. 217; 1997-261, s. 89.)

PART 3. PUBLIC AGENCIES.

§ 143-64.6: Repealed by Session Laws 2004-199, s. 36(a), effective August 17, 2004.

§§ 143-64.7 through 143-64.9: Reserved for future codification purposes.

§ 143-64.10. Findings; policy.

1. The General Assembly finds all of the following:
   1. That the State shall take a leadership role in aggressively undertaking the conservation of energy, water, and other utilities in North Carolina.
   2. That State facilities and facilities of State institutions of higher learning have a significant impact on the State's consumption of energy, water, and other utilities.
   3. That practices to conserve energy, water, and other utilities that are adopted for the design, construction, operation, maintenance, and renovation of these facilities and for the purchase, operation, and maintenance of equipment for these facilities will have a beneficial effect on the State's overall supply of energy, water, and other utilities.
   4. That the cost of the energy, water, and other utilities consumed by these facilities and the equipment for these facilities over the life of the facilities shall be considered, in addition to the initial cost.
   5. That the cost of energy, water, and other utilities is significant and facility designs shall take into consideration the total life-cycle cost, including the initial construction cost, and the cost, over the economic life of the facility, of the energy, water, and other utilities consumed, and of operation and maintenance of the facility as it affects the consumption of energy, water, or other utilities.
   6. That State government shall undertake a program to reduce the use of energy, water, and other utilities in State facilities and facilities of the State institutions of higher learning and equipment in those facilities in order to provide its citizens with an example of energy-use, water-use, and utility-use efficiency.
2. It is the policy of the State of North Carolina to ensure that practices to conserve energy, water, and other utilities are employed in the design, construction, operation, maintenance, and renovation of State facilities and facilities of the State institutions of higher learning and in the purchase, operation, and maintenance of equipment for these facilities.

History

(1975, c. 434, s. 1; 1993, c. 334, s. 2; 2001-415, s. 1; 2006-190, s. 8; 2007-546, s. 3.1(b).)

Triangle J Guidelines Pilot Program. - Session Laws 2001-415, ss. 7(a) to (e), provide: "(a) Triangle J Guidelines Pilot Program. - The General Assembly recognizes the State's need to understand how energy conservation measures are utilized in the construction or renovation of State facilities and how these measures benefit the State through cost savings and the protection of our natural resources. The General Assembly promotes the use of the Triangle J Council of Governments' High Performance Guidelines to achieve these goals and encourages any State entity to rate itself in accordance with these guidelines for the design, construction, operation, maintenance, or renovation of any State-assisted or State-owned facility.

"(b) To accomplish the goals described in Section 7(a) of this act, the Department of Administration shall implement a pilot program to review the use of the Triangle J Council of Governments' High Performance Guidelines in projects for the renovation or construction of State facilities.

"The Board of Governors of The University of North Carolina shall select at least four projects to participate in the pilot program, and the State Board of Community Colleges and the Office of State Budget, Planning, and Management [now the Office of State Budget and Management] shall select at least three projects each to participate in the program. One-third of the projects participating in this program shall be projects for the repair or renovation of a State facility, and the remaining projects shall be projects for the construction of State facilities.

"(c) The Department of Administration shall oversee the pilot program, and each entity involved shall submit all applicable information to the Department as it deems necessary, including compiling and submitting energy usage and cost data. The program shall include a one-year postoccupancy evaluation that shall be included as part of the evaluation of the Triangle J Council of Governments' High Performance Guidelines for each facility. The entities participating in this program shall explore the concept of a 'high performing facility' in assessing the use of the Triangle J Guidelines for these projects. For purposes of this section, 'high performing facility' means a building and surrounding environs designed using features that are energy efficient, incorporate reusable and renewable resources, provide natural lighting, are nontoxic, require low maintenance, are congruent with the natural characteristics of the site, incorporate water conservation measures, and cause minimum adverse impact to the environment as enacted in Section 2(11) of S.L. 2000-143.

"(d) The Department of Administration shall submit an interim report on the implementation of this program to the Senate and House of Representatives' Chairs of the Appropriations Committees, Chairs of General Government Appropriations Subcommittee, and the Joint Legislative Commission on Governmental Operations not later than December 15, 2002. The report shall discuss the benefits of using the Triangle J Council of Governments' High Performance Guidelines and make recommendations regarding the use of the Triangle J Guidelines in the projects participating in the program and other projects. The Department of Administration shall submit a final report to the Senate and House of Representatives' Chairs of the Appropriations Committees, Chairs of General Government Appropriations Subcommittee, and the Joint Legislative Commission on Governmental Operations not later than 18 months after completion of the last project participating in this program, if practicable.

"(e) This act shall not be construed to obligate the General Assembly to appropriate funds to implement the Triangle J Guidelines pilot program."

Editor's Note. - As to the design for construction of dormitories and the exemption of the Office of State Budget and Management from the requirements of G.S. 143-135.26(1), 143-128, 143-129, 143-132, 143-134, 143-131, 143-135.26, 143-64.10 through 143-64.13, 113A-1 through 113A-10, 113A-50 through 113A-66, 133-1.1(b), and 133-1.1(g) and rules implementing those statutes for contracting and supervising the design, construction, or demolition of prison facilities, see Session Laws 1987 (Reg. Sess., 1988), c. 1086, s. 123(b).

As to the exemption of the Office of State Budget and Management from the requirements of G.S. 143-135.26(1), 143-128, 143-129, 143-131, 143-132, 143-134, 143-135.26, 143-64.10 through 143-64.13, 113A-1 through 113A-10, 113A-50 through 113A-66, 133-1.1(b), and 133-1.1(g) and rules implementing those statutes for the purpose of construction of prison facilities, see Session Laws 1989, c. 754, s. 28(a).

As to the exemption of the Office of State Budget and Management from the requirements of this Article in administration and implementation of the Prison Facilities Legislative Bond Act of 1990, see Session Laws 1989 (Reg. Sess., 1990), c. 933, s. 6(4).

As to the exemption of the Office of State Budget and Management from the requirements of this Article in the implementation of the providing of prison facilities under the provisions of the State Prison and Youth Services Facilities Bond Act, see Session Laws 1989 (Reg. Sess., 1990), c. 935, s. 6(a)(4).

As to the exemption of the Office of State Budget and Management from the requirements of G.S. 143-135.26(1), 143-128, 143-129, 143-131, 143-132, 143-134, 143-135.26, 143-64.10 through 143-64.13, 113A-1 through 113A-10, 113A-50 through 113A-66, 133-1.1(b), and 133-1.1(g) and rules implementing those statutes for the purpose of contracting and supervising the construction of prison facilities upon meeting a verifiable ten percent (10%) goal for participating by minority and women-owned businesses, see Session Laws 1991, c. 689, s. 239(f), as amended by Session Laws 1991 (Reg. Sess., 1992), c. 1044, s. 41(b).

Effect of Amendments. - Session Laws 2006-190, s. 8, effective August 3, 2006, and applicable to contracts entered into or renewed on or after that date, rewrote the section.

Session Laws 2007-546, s. 3.1(b), effective August 31, 2007, inserted "and facilities of State institutions of higher learning" in subdivision (a)(2); inserted "and facilities of the State institutions of higher learning" in subdivision (a)(6) and subsection (b), and, in subsection (b), inserted "State" in the middle and substituted "these facilities" for "State facilities" at the end.

§ 143-64.11. Definitions.

For purposes of this Article:

1. "Economic life" means the projected or anticipated useful life of a facility.
2. "Energy-consumption analysis" means the evaluation of all energy- consuming systems, including systems that consume water or other utilities, and components of these systems by demand and type of energy or other utility use, including the internal energy load imposed on a facility by its occupants, equipment and components, and the external energy load imposed on the facility by climatic conditions.
3. "Energy Office" means the State Energy Office of the Department of Environmental Quality.
4. "Energy-consuming system" includes but is not limited to any of the following equipment or measures:
   1. Equipment used to heat, cool, or ventilate the facility;
   2. Equipment used to heat water in the facility;
   3. Lighting systems;
   4. On-site equipment used to generate electricity for the facility;
   5. On-site equipment that uses the sun, wind, oil, natural gas, liquid propane gas, coal, or electricity as a power source; and
   6. Energy conservation measures, as defined in G.S. 143-64.17, in the facility design and construction that decrease the energy, water, or other utility requirements of the facility.
5. "Facility" means a building or a group of buildings served by a central distribution system for energy, water, or other utility or components of a central distribution system.
6. "Initial cost" means the required cost necessary to construct or renovate a facility.
7. "Life-cycle cost analysis" means an analytical technique that considers certain costs of owning, using, and operating a facility over its economic life, including but not limited to:
   1. Initial costs;
   2. System repair and replacement costs;
   3. Maintenance costs;
   4. Operating costs, including energy costs; and
   5. Salvage value.
8. Repealed by Session Laws 1993, c. 334, s. 3, effective July 13, 1993.
9. "State agency" means the State of North Carolina or any board, bureau, commission, department, institution, or agency of the State.
10. "State-assisted facility" means a facility constructed or renovated in whole or in part with State funds or with funds guaranteed or insured by a State agency.
11. "State facility" means a facility constructed or renovated, by a State agency.
12. "State institution of higher learning" means any constituent institution of The University of North Carolina.

History

(1975, c. 434, s. 2; 1989, c. 23, s. 1; 1993, c. 334, s. 3; 2001-415, s. 2; 2006-190, ss. 9, 10, 11; 2007-546, s. 3.1(c); 2009-446, s. 1(f); 2013-360, s. 15.22(o); 2015-241, s. 14.30(u).)

Editor's Note. - See the Editor's Notes under G.S. 143-64.10.

Session Laws 2007-546, s. 5, provides: "This act shall not be construed to obligate the General Assembly to appropriate funds to implement the provisions of this act. Every public agency, as defined in subsection (c) of Section 1 of this act, to which this act applies may implement the provisions of this act from funds otherwise appropriated or available to that public agency."

Session Laws 2009-446, s. 1(a), provides: "The State Energy Office is transferred from the Department of Administration to the Department of Commerce. This transfer shall have all of the elements of a Type I transfer, as defined in G.S. 143A-6."

Session Laws 2013-360, s. 15.22(a), provides: "The State Energy Office is hereby transferred from the Department of Commerce to the Department of Environment and Natural Resources. This transfer shall have all of the elements of a Type I transfer, as defined in G.S. 143A-6."

Session Laws 2013-360, s. 1.1, provides: "This act shall be known as the 'Current Operations and Capital Improvements Appropriations Act of 2013.'"

Session Laws 2013-360, s. 38.2, provides: "Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2013-2015 fiscal biennium, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2013-2015 fiscal biennium."

Session Laws 2013-360, s. 38.5 is a severability clause.

Effect of Amendments. - Session Laws 2006-190, ss. 9 to 11, effective August 3, 2006, and applicable to contracts entered into or renewed on or after that date, in subdivision (2), substituted "systems, including systems that consume water or other utilities, and components of these systems by demand and type of energy or other utility use" for "systems and components by demand and type of energy"; in subdivision (2b), inserted "any of " in the introductory language, and substituted "measures, as defined in G.S. 143-64.17, in the facility design and construction that decrease the energy, water, or other utility requirements" for "measures in the facility design and construction that decrease the energy requirements" in sub-subdivision (2b)f.; and in subdivision (3), substituted "central distribution system" for "central energy distribution system" twice, and inserted "for energy, water, or other utility".

Session Laws 2006-190, s. 10, effective August 3, 2006, inserted "any of" in the introductory language of subdivision (2b); in subdivision (2)f., substituted "measures, as defined in G.S. 143-64.17," for "measures", and substituted "energy, water, or other utility" for "energy".

Session Laws 2006-190, s. 11, effective August 3, 2006, in subdivision (3), substituted "central distribution system" for "central energy distribution system" twice, and inserted "for energy, water, or other utility".

Session Laws 2007-546, s. 3.1(c), effective August 31, 2007, added subdivision (10).

Session Laws 2009-446, s. 1(f), effective August 7, 2009, substituted "Commerce" for "Administration" in subdivision (2a).

Session Laws 2013-360, s. 15.22(o), effective July 1, 2013, substituted "Environment and Natural Resources" for "Commerce" in subdivision (2a).

Session Laws 2015-241, s. 14.30(u), effective July 1, 2015, substituted "Department of Environmental Quality" for "Department of Environment and Natural Resources" in subdivision (2a).

§ 143-64.12. Authority and duties of the Department; State agencies and State institutions of higher learning.

1. The Department of Environmental Quality through the State Energy Office shall develop a comprehensive program to manage energy, water, and other utility use for State agencies and State institutions of higher learning and shall update this program annually. Each State agency and State institution of higher learning shall develop and implement a management plan that is consistent with the State's comprehensive program under this subsection to manage energy, water, and other utility use, and that addresses any findings or recommendations resulting from the energy audit required by subsection (b1) of this section. The energy consumption per gross square foot for all State buildings in total shall be reduced by twenty percent (20%) by 2010 and thirty percent (30%) by 2015 based on energy consumption for the 2002-2003 fiscal year. Each State agency and State institution of higher learning shall update its management plan biennially and include strategies for supporting the energy consumption reduction requirements under this subsection. Each community college shall submit to the State Energy Office a biennial written report of utility consumption and costs. Management plans submitted biennially by State institutions of higher learning shall include all of the following:
   1. Estimates of all costs associated with implementing energy conservation measures, including pre-installation and post-installation costs.
   2. The cost of analyzing the projected energy savings.
   3. Design costs, engineering costs, pre-installation costs, post-installation costs, debt service, and any costs for converting to an alternative energy source.
   4. An analysis that identifies projected annual energy savings and estimated payback periods.
2. State agencies and State institutions of higher learning shall carry out the construction and renovation of facilities in such a manner as to further the policy set forth under this section and to ensure the use of life-cycle cost analyses and practices to conserve energy, water, and other utilities.
3. The Department of Administration shall develop and implement policies, procedures, and standards to ensure that State purchasing practices improve efficiency regarding energy, water, and other utility use and take the cost of the product over the economic life of the product into consideration. The Department of Administration shall adopt and implement Building Energy Design Guidelines. These guidelines shall include energy-use goals and standards, economic assumptions for life-cycle cost analysis, and other criteria on building systems and technologies. The Department of Administration shall modify the design criteria for construction and renovation of facilities of State buildings and State institutions of higher learning buildings to require that a life-cycle cost analysis be conducted pursuant to G.S. 143-64.15.
4. The Department of Administration, as part of the Facilities Condition and Assessment Program, shall identify and recommend energy conservation maintenance and operating procedures that are designed to reduce energy consumption within the facility of a State agency or a State institution of higher learning and that require no significant expenditure of funds. Every State agency or State institution of higher learning shall implement these recommendations. Where energy management equipment is proposed for any facility of a State agency or of a State institution of higher learning, the maximum interchangeability and compatibility of equipment components shall be required. As part of the Facilities Condition and Assessment Program under this section, the Department of Administration, in consultation with the State Energy Office, shall develop an energy audit and a procedure for conducting energy audits. Every five years the Department shall conduct an energy audit for each State agency or State institution of higher learning, and the energy audits conducted shall serve as a preliminary energy survey. The State Energy Office shall be responsible for system-level detailed surveys.
5. The Department of Administration shall submit a report of the energy audit required by subsection (b1) of this section to the affected State agency or State institution of higher learning and to the State Energy Office. The State Energy Office shall review each audit and, in consultation with the affected State agency or State institution of higher learning, incorporate the audit findings and recommendations into the management plan required by subsection (a) of this section.
6. through (g) Repealed by Session Laws 1993, c. 334, s. 4.
7. When conducting a facilities condition and assessment under this section, the Department of Administration shall identify and recommend to the State Energy Office any facility of a State agency or State institution of higher learning as suitable for building commissioning to reduce energy consumption within the facility or as suitable for installing an energy savings measure pursuant to a guaranteed energy savings contract under Part 2 of this Article.
8. Consistent with G.S. 150B-2(8a)h., the Department of Administration may adopt architectural and engineering standards to implement this section.
9. The State Energy Office shall submit a report by December 1 of every odd-numbered year to the Joint Legislative Energy Policy Commission, the Joint Legislative Oversight Committee on Agriculture and Natural and Economic Resources, and the Fiscal Research Division describing the comprehensive program to manage energy, water, and other utility use for State agencies and State institutions of higher learning required by subsection (a) of this section. The report shall also contain the following:
   1. A comprehensive overview of how State agencies and State institutions of higher learning are managing energy, water, and other utility use and achieving efficiency gains.
   2. Any new measures that could be taken by State agencies and State institutions of higher learning to achieve greater efficiency gains, including any changes in general law that might be needed.
   3. A summary of the State agency and State institutions of higher learning management plans required by subsection (a) of this section and the energy audits required by subsection (b1) of this section.
   4. A list of the State agencies and State institutions of higher learning that did and did not submit management plans required by subsection (a) of this section and a list of the State agencies and State institutions of higher learning that received an energy audit.
   5. Any recommendations on how management plans can be better managed and implemented.

History

(1975, c. 434, s. 3; 1993, c. 334, s. 4; 2000-140, s. 76(f); 2001-415, s. 3; 2006-190, s. 12; 2007-546, s. 3.1(a); 2008-198, s. 11.1; 2009-446, s. 1(e); 2010-31, s. 14.3; 2010-196, s. 2; 2013-360, s. 15.22(p); 2014-120, s. 55; 2015-241, s. 14.30(u); 2017-57, s. 14.1(f).)

Editor's Note. - See the Editor's Notes under G.S. 143-64.10.

Session Laws 2007-546, s. 3.2, provides: "The Department of Administration shall establish and train an additional team to examine existing facilities of State agencies and State institutions of higher learning to identify and recommend energy conservation maintenance and operating procedures designed to reduce energy consumption and to conduct energy audits and identify a facility as suitable for building commissioning or for installing an energy savings measure under the Facilities Condition Assessment Program (FCAP) under G.S. 143-64.12, as amended by Section 3.1 of this act."

Session Laws 2007-546, s. 5, provides: "This act shall not be construed to obligate the General Assembly to appropriate funds to implement the provisions of this act. Every public agency, as defined in subsection (c) of Section 1 of this act, to which this act applies may implement the provisions of this act from funds otherwise appropriated or available to that public agency."

Session Laws 2009-446, s. 1(a), provides: "The State Energy Office is transferred from the Department of Administration to the Department of Commerce. This transfer shall have all of the elements of a Type I transfer, as defined in G.S. 143A-6."

Session Laws 2013-360, s. 15.22(a), provides: "The State Energy Office is hereby transferred from the Department of Commerce to the Department of Environment and Natural Resources. This transfer shall have all of the elements of a Type I transfer, as defined in G.S. 143A-6."

Session Laws 2013-360, s. 1.1, provides: "This act shall be known as the 'Current Operations and Capital Improvements Appropriations Act of 2013.'"

Session Laws 2013-360, s. 38.2, provides: "Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2013-2015 fiscal biennium, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2013-2015 fiscal biennium."

Session Laws 2013-360, s. 38.5, is a severability clause.

Effect of Amendments. - Session Laws 2006-190, s. 12, effective August 3, 2006, and applicable to contracts entered into or renewed on or after that date, substituted "practices to conserve energy, water, and other utilities" for "energy conservation practices" in subsection (a); in the first paragraph of subsection (b), deleted "energy" following "State purchasing practices improve" near the beginning, and inserted "regarding energy, water, and other utility use"; and in the second paragraph of subsection (b), deleted "energy management" preceding "program" in two places, inserted "to manage energy, water, and other utility use," substituted "a management" for "an energy management," and added "program to manage energy, water, and other utility use" at the end.

Session Laws 2007-546, s. 3.1(a), effective August 31, 2007, added subsection (a); redesignated former subsection (a) as subsection (a1); and, in subsection (a1), deleted "The General Assembly authorizes and directs that" preceding "State agencies," inserted "and State institutions of higher learning", substituted "facilities" for "State facilities, under their jurisdiction," and substituted "set forth under this section and to ensure" for "declared herein, ensuring"; redesignated the former second paragraph of subsection (b) as present subsection (b1); rewrote subsection (b1); deleted the former third paragraph of subsection (b); inserted "of State buildings and State institutions of higher learning buildings" in the last sentence of subsection (b); and added subsections (h) and (i).

Session Laws 2008-198, s. 11.1, effective August 8, 2008, substituted "2002-2003" for "2003-2004" in the third sentence of subsection (a).

Session Laws 2009-446, s. 1(e), effective August 7, 2009, substituted "Commerce" for "Administration" in subsection (a).

Session Laws 2010-31, s. 14.3, effective July 1, 2010, in the second sentence of subsection (a), added "and that addresses any findings or recommendations resulting from the energy audit required by subsection (b1) of this section" at the end; in subsection (b1), in the fourth sentence, inserted "in consultation with the State Energy Office," in the fifth sentence, added "and the energy audits conducted shall serve as a preliminary energy survey" at the end and added the last sentence; added subsection (b2); in subsection (h), substituted "conducting a facilities condition and assessment" for "conducting an energy audit" and inserted "to the State Energy Office"; and added subsection (j).

Session Laws 2010-196, s. 2, effective July 1, 2010, and applicable to contracts entered into on or after that date, added the last sentence in the introductory paragraph of subsection (a); and added subdivisions (a)(1) through (a)(4).

Session Laws 2013-360, s. 15.22(p), effective July 1, 2013, substituted "Environment and Natural Resources" for "Commerce" in subsection (a).

Session Laws 2014-120, s. 55, effective September 18, 2014, in the introductory paragraph of subsection (a), twice substituted "biennially" for "annually", and substituted "a biennial" for "an annual" near the end; and, in subsection (j), substituted "every odd-numbered year to the Joint Legislative Energy Policy Commission" for "each year to the Joint Legislative Commission on Governmental Operations" near the beginning of the first sentence.

Session Laws 2015-241, s. 14.30(u), effective July 1, 2015, substituted "Department of Environmental Quality" for "Department of Environment and Natural Resources" in subsection (a).

Session Laws 2017-57, s. 14.1(f), effective July 1, 2017, inserted "the Joint Legislative Oversight Committee on Agriculture and Natural and Economic Resources, and the Fiscal Research Division" in subsection (j).

§ 143-64.13: Repealed by Session Laws 1993, c. 334, s. 5.

§ 143-64.14: Recodified as G.S. 143-64.16 by Session Laws 1993, c. 334, s. 7.

§ 143-64.15. Life-cycle cost analysis.

1. A life-cycle cost analysis shall be commenced at the schematic design phase of the construction or renovation project, shall be updated or amended as needed at the design development phase, and shall be updated or amended again as needed at the construction document phase. A life-cycle cost analysis shall include, but not be limited to, all of the following elements:
   1. The coordination, orientation, and positioning of the facility on its physical site.
   2. The amount and type of fenestration and the potential for daylighting employed in the facility.
   3. Thermal characteristics of materials and the amount of insulation incorporated into the facility design.
   4. The variable occupancy and operating conditions of the facility, including illumination levels.
   5. Architectural features that affect the consumption of energy, water, and other utilities.
2. The life-cycle cost analysis performed for any State facility shall, in addition to the requirements set forth in subsection (a) of this section, include, but not be limited to, all of the following:
   1. An energy-consumption analysis of the facility's energy-consuming systems in accordance with the provisions of subsection (g) of this section.
   2. The initial estimated cost of each energy-consuming system being compared and evaluated.
   3. The estimated annual operating cost of all utility requirements.
   4. The estimated annual cost of maintaining each energy-consuming system.
   5. The average estimated replacement cost for each system expressed in annual terms for the economic life of the facility.
3. Each entity shall conduct a life-cycle cost analysis pursuant to this section for the construction or the renovation of any State facility or State-assisted facility of 20,000 or more gross square feet. For the replacement of heating, ventilation, and air-conditioning equipment in any State facility or State-assisted facility of 20,000 or more gross square feet, the entity shall conduct a life-cycle cost analysis of the replacement equipment pursuant to this section when the replacement is financed under a guaranteed energy savings contract or financed using repair and renovation funds.
4. The life-cycle cost analysis shall be certified by a registered professional engineer or bear the seal of a North Carolina registered architect, or both. The engineer or architect shall be particularly qualified by training and experience for the type of work involved, but shall not be employed directly or indirectly by a fuel provider, utility company, or group supported by fuel providers or utility funds. Plans and specifications for facilities involving public funds shall be designed in conformance with the provisions of G.S. 133-1.1.
5. In order to protect the integrity of historic buildings, no provision of this Article shall be interpreted to require the implementation of measures to conserve energy, water, or other utility use that conflict with respect to any property eligible for, nominated to, or entered on the National Register of Historic Places, pursuant to the National Historic Preservation Act of 1966, P.L. 89-665; any historic building located within an historic district as provided in Chapters 160A or 153A of the General Statutes; any historic building listed, owned, or under the jurisdiction of an historic properties commission as provided in Chapter 160A or 153A; nor any historic property owned by the State or assisted by the State.
6. Each State agency shall use the life-cycle cost analysis over the economic life of the facility in selecting the optimum system or combination of systems to be incorporated into the design of the facility.
7. The energy-consumption analysis of the operation of energy-consuming systems utilities in a facility shall include, but not be limited to, all of the following:
   1. The comparison of two or more system alternatives.
   2. The simulation or engineering evaluation of each system over the entire range of operation of the facility for a year's operating period.
   3. The engineering evaluation of the consumption of energy, water, and other utilities of component equipment in each system considering the operation of such components at other than full or rated outputs.

History

(1993, c. 334, s. 6; 2001-415, ss. 4, 5; 2006-190, s. 13; 2007-546, s. 4.1.)

Editor's Note. - Session Laws 2007-546, s. 5, provides: "This act shall not be construed to obligate the General Assembly to appropriate funds to implement the provisions of this act. Every public agency, as defined in subsection (c) of Section 1 of this act, to which this act applies may implement the provisions of this act from funds otherwise appropriated or available to that public agency."

Effect of Amendments. - Session Laws 2006-190, s. 13, effective August 3, 2006, and applicable to contracts entered into or renewed on or after that date, inserted "all of" in the introductory language of subsection (a); in subdivision (a)(5), substituted "that affect" for "which affect," and substituted "the consumption of energy, water, and other utilities" for "energy consumption"; in subsection (c), substituted "Each" for "The General Assembly requires each," substituted "shall conduct" for "to conduct," and added the second sentence; in subsection (e), substituted "measures to conserve energy, water, or other utility use" for "energy cost measures"; added "all of the following" in the introductory language of subsection (g); in subdivision (g)(3), deleted "energy" precding "consumption" and substituted "consumption of energy, water, and other utilities" for "energy consumption"; and made stylistic and punctuation changes throughout the section.

Session Laws 2007-546, s. 4.1, effective August 31, 2007, and applicable to life-cycle cost analyses commenced, and to contracts entered into for life-cycle cost analyses, on or after December 1, 2007, in subsection (a), added the first sentence in the introductory language; inserted "and the potential for daylighting" in subdivision (a)(2); and made minor grammatical and punctuation changes throughout subsection (a).

§ 143-64.15A. Certification of life-cycle cost analysis.

Each State agency and each State institution of higher learning performing a life-cycle cost analysis for the purpose of constructing or renovating any facility shall, prior to selecting a design option or advertising for bids for construction, submit the life-cycle cost analysis to the Department for certification at the schematic design phase and again when it is updated or amended as needed in accordance with G.S. 143-64.15. The Department shall review the material submitted by the State agency or State institution of higher learning, reserve the right to require an agency or institution to complete additional analysis to comply with certification, perform any additional analysis, as necessary, to comply with G.S. 143-341(11), and require that all construction or renovation conducted by the State agency or State institution of higher learning comply with the certification issued by the Department.

History

(2001-415, s. 6; 2007-546, s. 4.2.)

Editor's Note. - Session Laws 2007-546, s. 5, provides: "This act shall not be construed to obligate the General Assembly to appropriate funds to implement the provisions of this act. Every public agency, as defined in subsection (c) of Section 1 of this act, to which this act applies may implement the provisions of this act from funds otherwise appropriated or available to that public agency."

Effect of Amendments. - Session Laws 2007-546, s. 4.2, effective August 31, 2007, rewrote the section.

§ 143-64.16. Application of Part.

The provisions of this Part shall not apply to municipalities or counties, nor to any agency or department of any municipality or county; provided, however, this Part shall apply to any board of a community college. Community college is defined in G.S. 115D-2(2).

History

(1975, c. 434, s. 5; 1989, c. 23, s. 2; 1993, c. 334, s. 7; 1993 (Reg. Sess., 1994), c. 775, s. 2.)

PART 2. ENERGY SAVING MEASURES FOR GOVERNMENTAL UNITS.

§ 143-64.17. Definitions.

As used in this Part:

1. "Energy conservation measure" means a facility or meter alteration, training, or services related to the operation of the facility or meter, when the alteration, training, or services provide anticipated energy savings or capture lost revenue. Energy conservation measure includes any of the following:
   1. Insulation of the building structure and systems within the building.
   2. Storm windows or doors, caulking, weatherstripping, multiglazed windows or doors, heat-absorbing or heat-reflective glazed or coated window or door systems, additional glazing, reductions in glass area, or other window or door system modifications that reduce energy consumption.
   3. Automatic energy control systems.
   4. Heating, ventilating, or air-conditioning system modifications or replacements.
   5. Replacement or modification of lighting fixtures to increase the energy efficiency of a lighting system without increasing the overall illumination of a facility, unless an increase in illumination is necessary to conform to the applicable State or local building code or is required by the light system after the proposed modifications are made.
   6. Energy recovery systems.
   7. Cogeneration systems that produce steam or forms of energy such as heat, as well as electricity, for use primarily within a building or complex of buildings.
   8. Repealed by Session Laws 2006-190, s. 2, effective August 3, 2006, and applicable to contracts entered into or renewed on or after that date.
   9. Faucets with automatic or metered shut-off valves, leak detection equipment, water meters, water recycling equipment, and wastewater recovery systems.
   10. Other energy conservation measures that conserve energy, water, or other utilities.
2. "Energy savings" means a measured reduction in fuel costs, energy costs, water costs, stormwater fees, other utility costs, or operating costs, including environmental discharge fees, water and sewer maintenance fees, and increased meter accuracy, created from the implementation of one or more energy conservation measures when compared with an established baseline of previous costs, including captured lost revenues, developed by the governmental unit.
3. "Governmental unit" means either a local governmental unit or a State governmental unit.
4. "Guaranteed energy savings contract" means a contract for the evaluation, recommendation, or implementation of energy conservation measures, including the design and installation of equipment or the repair or replacement of existing equipment or meters, in which all payments, except obligations on termination of the contract before its expiration, are to be made over time, and in which energy savings are guaranteed to exceed costs.
5. "Local governmental unit" means any board or governing body of a political subdivision of the State, including any board of a community college, any school board, or an agency, commission, or authority of a political subdivision of the State.
6. "Qualified provider" means a person or business experienced in the design, implementation, and installation of energy conservation measures who has been prequalified by the State Energy Office according to the prequalification criteria established by that Office.
7. "Qualified reviewer" means an architect or engineer who is (i) licensed in this State and (ii) experienced in the design, implementation, and installation of energy efficiency measures.
8. "Request for proposals" means a negotiated procurement initiated by a governmental unit by way of a published notice that includes the following:
   1. The name and address of the governmental unit.
   2. The name, address, title, and telephone number of a contact person in the governmental unit.
   3. Notice indicating that the governmental unit is requesting qualified providers to propose energy conservation measures through a guaranteed energy savings contract.
   4. The date, time, and place where proposals must be received.
   5. The evaluation criteria for assessing the proposals.
   6. A statement reserving the right of the governmental unit to reject any or all the proposals.
   7. Any other stipulations and clarifications the governmental unit may require.
9. "State governmental unit" means the State or a department, an agency, a board, or a commission of the State, including the Board of Governors of The University of North Carolina and its constituent institutions.

History

(1993 (Reg. Sess., 1994), c. 775, s. 3; 1995, c. 295, s. 1; 1999-235, ss. 1, 2; 2002-161, s. 2; 2006-190, s. 2; 2013-396, s. 1.)

Editor's Note. - Session Laws 2012-201, s. 4, effective August 1, 2012, rewrote the Part 2 heading, which formerly read "Guaranteed Energy Savings Contracts for Governmental Units."

Effect of Amendments. - Session Laws 2006-190, s. 2, effective August 3, 2006, and applicable to contracts entered into or renewed on or after that date, in the introductory paragraph of subdivision (1), inserted "or meter" following "means a facility", substituted "facility or meter," for "facility," and inserted "or capture lost revenue"; repealed subdivision (1)h.; added subdivisions (1)i. and j.; in subdivision (2), inserted "water costs, stormwater fees, other utility costs" following "fuel costs, energy costs," substituted "costs, including environmental discharge fees, water and sewer maintenance fees, and increased meter accuracy" for "costs," and substituted "costs, including captured lost revenues" for "fuel costs, energy costs, or operating costs"; and substituted "equipment or meters" for "equipment" in subdivision (3).

Session Laws 2013-396, s. 1, effective August 23, 2013, added "who has been prequalified by the State Energy Office according to the prequalification criteria established by that Office" in subdivision (5); and added subdivision (5a).

§ 143-64.17A. Solicitation of guaranteed energy savings contracts.

1. RFP Issuance. - Before entering into a guaranteed energy savings contract, a governmental unit shall issue a request for proposals. Notice of the request shall be published at least 15 days in advance of the time specified for opening of the proposals in at least one newspaper of general circulation in the geographic area for which the local governmental unit is responsible or, in the case of a State governmental unit, in which the facility or facilities are located. No guaranteed energy savings contract shall be awarded by any governmental unit unless at least two proposals have been received from qualified providers. Provided that if after the publication of the notice of the request for proposals, fewer than two proposals have been received from qualified providers, or fewer than two qualified providers attend the mandatory prebid meeting, the governmental unit may then open the proposals and select a qualified provider even if only one proposal is received.
2. Before issuing a request for proposals under this section that would involve a financing agreement as allowed under G.S. 160A-20, a local school administrative unit or a community college must notify the Local Government Commission of its intent to do so 15 days in advance.
3. Preliminary Proposal Evaluation. - The governmental unit shall evaluate a sealed proposal from any qualified provider. A qualified reviewer shall be required to evaluate the proposals and will provide the governmental unit with a letter report containing both qualitative and quantitative evaluation of the proposals. The report may include a recommendation for selection, but the governmental unit is not obligated to follow it.
4. Receipt of Proposals for Unit of Local Government. - In the case of a local governmental unit, proposals received pursuant to this section shall be opened by a member or an employee of the governing body of the local governmental unit at a public opening at which the contents of the proposals shall be announced and recorded in the minutes of the governing body. Proposals shall be evaluated for the local governmental unit by a qualified reviewer on the basis of:
   1. The information required in subsection (b) of this section; and
   2. The criteria stated in the request for proposals.
5. Receipt of Proposals for Unit of State Government. - In the case of a State governmental unit, proposals received pursuant to this section shall be opened by a member or an employee of the State governmental unit at a public opening and the contents of the proposals shall be announced at this opening. Proposals shall be evaluated for the State governmental unit by a qualified reviewer who is either privately retained, employed with the Department of Administration, or employed as a member of the staff of the State governmental unit. The proposal shall be evaluated on the basis of the information and report required in subsection (b) of this section and the criteria stated in the request for proposals.
6. Criteria for Selection of Provider. - The governmental unit shall select the qualified provider that it determines to best meet the needs of the governmental unit by evaluating all of the following and following the procedures set forth in subsection (d1) of this section:
   1. , (2) Repealed by Session Laws 2013-396, s. 2, effective August 23, 2013.
7. Process for Selection of Provider. - The governmental unit shall select a short list of finalists on the basis of its rankings of the written proposals under the criteria set forth in subsection (d) of this section as well as references from past clients. The governmental unit shall have the highest ranked qualified provider prepare a cost-savings analysis for the proposed contract showing at a minimum a comparison of the total estimated project savings to the total estimated project costs for the proposed term. If the governmental unit and the qualified provider cannot negotiate acceptable terms, pricing, and savings estimates, the governmental unit may terminate the process and begin negotiations with the second highest ranked qualified provider. The State Energy Office shall review the selected qualified provider's proposal, cost-benefit analysis, and other relevant documents prior to the governmental unit announcing the award.
8. Nothing in this section shall limit the authority of governmental units as set forth in Article 3D of this Chapter.

The local governmental unit may require a qualified provider to include in calculating the cost of a proposal for a guaranteed energy savings contract any reasonable fee payable by the local governmental unit for the evaluation of the proposal by a qualified reviewer not employed as a member of the staff of the local governmental unit or the qualified provider.

The State governmental unit shall require a qualified provider to include in calculating the cost of a proposal for a guaranteed energy savings contract any reasonable fee payable by the State governmental unit for evaluation of the proposal by a qualified reviewer not employed as a member of the staff of the State governmental unit or the qualified provider. The Department of Administration may charge the State governmental unit a reasonable fee for the evaluation of the proposal if the Department's services are used for the evaluation and the cost paid by the State governmental unit to the Department of Administration shall be calculated in the cost of the proposal under this subsection.

(3) Quality of the products and energy conservation measures proposed.

(4) Repealed by Session Laws 2013-396, s. 2, effective August 23, 2013.

(5) General reputation and performance capabilities of the qualified providers.

(6) Substantial conformity with the specifications and other conditions set forth in the request for proposals.

(7) Time specified in the proposals for the performance of the contract.

(8) Any other factors the governmental unit deems necessary, which factors shall be made a matter of record.

History

(1993 (Reg. Sess., 1994), c. 775, s. 3; 2002-161, s. 3; 2013-396, s. 2; 2021-72, s. 5.1.)

Editor's Note. - Session Laws 2021-72, s. 6.1, is a severability clause.

Effect of Amendments. - Session Laws 2013-396, s. 2, effective August 23, 2013, rewrote the section.

Session Laws 2021-72, s. 5.1, effective July 2, 2021, added subsection (a1).

§ 143-64.17B. Guaranteed energy savings contracts.

1. A governmental unit may enter into a guaranteed energy savings contract with a qualified provider if all of the following apply:
   1. The term of the contract does not exceed 20 years from the date of the installation and acceptance by the governmental unit of the energy conservation measures provided for under the contract.
   2. The governmental unit finds that the energy savings resulting from the performance of the contract will equal or exceed the total cost of the contract.
   3. The energy conservation measures to be installed under the contract are for an existing building or utility system, or utility consuming device or equipment when the utility cost is paid by the governmental unit.
2. Before entering into a guaranteed energy savings contract, the governmental unit shall provide published notice of the time and place or of the meeting at which it proposes to award the contract, the names of the parties to the proposed contract, and the contract's purpose. The notice must be published at least 15 days before the date of the proposed award or meeting.
3. A qualified provider entering into a guaranteed energy savings contract under this Part shall provide security to the governmental unit in the form acceptable to the Office of the State Treasurer and in an amount equal to one hundred percent (100%) of the guaranteed savings for the term of the guaranteed energy savings contract to assure the provider's faithful performance. Any bonds required by this subsection shall be subject to the provisions of Article 3 of Chapter 44A of the General Statutes. If the savings resulting from a guaranteed energy savings contract are not as great as projected under the contract and all required shortfall payments to the governmental unit have not been made, the governmental unit may terminate the contract without incurring any additional obligation to the qualified provider.
4. As used in this section, "total cost" shall include, but not be limited to, costs of construction, costs of financing, and costs of maintenance and training during the term of the contract less the application of the utility company, State, or federal incentives, grants, or rebates. "Total cost" does not include any obligations on termination of the contract before its expiration, provided that those obligations are disclosed when the contract is executed.
5. A guaranteed energy savings contract may not require the governmental unit to purchase a maintenance contract or other maintenance agreement from the qualified provider who installs energy conservation measures under the contract if the unit of government takes appropriate action to budget for its own forces or another provider to maintain new systems installed and existing systems affected by the guaranteed energy savings contract.
6. In the case of a State governmental unit, a qualified provider shall, when feasible, after the acceptance of the proposal of the qualified provider by the State governmental unit, conduct an investment grade audit. During this investment grade audit, the qualified provider shall perform in accordance with Part 1 of this Article a life cycle cost analysis of each energy conservation measure in the final proposal. If the results of the audit are not within ten percent (10%) of both the guaranteed savings contained in the proposal and the total proposal amount, either the State governmental unit or the qualified provider may terminate the project without incurring any additional obligation to the other party. However, if the State governmental unit terminates the project after the audit is conducted and the results of the audit are within ten percent (10%) of both the guaranteed savings contained in the proposal and the total proposal amount, the State governmental unit shall reimburse the qualified provider the reasonable cost incurred in conducting the audit, and the results of the audit shall become the property of the State governmental unit.
7. A qualified provider shall provide an annual reconciliation statement based upon the results of the measurement and verification review. The statement shall disclose any shortfalls or surplus between guaranteed energy and operational savings specified in the guaranteed energy savings contract and actual, not stipulated, energy and operational savings incurred during a given guarantee year. Any guaranteed energy and operational savings shall be determined by using one of the measurement and verification methodologies listed in the United States Department of Energy's Measurement and Verification Guidelines for Energy Savings Performance Contracting, the International Performance Measurement and Verification Protocol (IPMVP) maintained by the Efficiency Valuation Organization, or Guideline 14-2002 of the American Society of Heating, Refrigerating, and Air-Conditioning Engineers. If due to existing data limitations or the nonconformance of specific project characteristics, none of the three methodologies listed in this subsection is sufficient for measuring guaranteed savings, the qualified provider shall develop an alternate method that is compatible with one of the three methodologies and mutually agreeable to the governmental unit. The guarantee year shall consist of a 12-month term commencing from the time that the energy conservation measures become fully operational. A qualified provider shall pay the governmental unit or its assignee any shortfall in the guaranteed energy and operational savings after the total year savings have been determined. In the case of a governmental unit, a surplus in any one year shall not be carried forward or applied to a shortfall in any other year.

History

(1993 (Reg. Sess., 1994), c. 775, s. 3; 1995, c. 295, s. 2; 1999-235, s. 3; 2002-161, s. 4; 2003-138, s. 1; 2006-190, s. 3; 2009-375, s. 2; 2013-396, s. 3; 2014-115, s. 56.7.)

Effect of Amendments. - Session Laws 2006-190, s. 3, effective August 3, 2006, and applicable to contracts entered into or renewed on or after that date, substituted "20 years" for "12 years" in subdivision (a)(1); and substituted "building or utility system" for "building" in subdivision (a)(3).

Session Laws 2009-375, s. 2, effective July 31, 2009, added the second sentence in subsection (f).

Session Laws 2013-396, s. 3, effective August 23, 2013, substituted "guaranteed savings for the term" for "total cost" in subsection (c); and, in subsection (g), deleted "In the case of a State governmental unit" preceding "A qualified" in the first sentence, added the third and fourth sentences, in the sixth sentence, substituted "governmental unit or its assignee" for "State governmental unit," and added "In the case of a governmental unit" in the last sentence.

Session Laws 2014-115, s. 56.7, effective August 11, 2014, added "or utility consuming device or equipment when the utility cost is paid by the governmental unit" in subdivision (a)(3) and "less the application of the utility company, State, or federal incentives, grants, or rebates" in the first sentence of subsection (d).

§ 143-64.17C: Repealed by Session Laws 2002, ch. 161, s. 5, effective January 1, 2003, and applicable to contracts entered into on or after that date.

Editor's Note. - Session Laws 2002-161, s. 12, provides that nothing in the act limits the use of any method of contracting authorized by local law or other applicable laws.

§ 143-64.17D. Contract continuance.

A guaranteed energy savings contract may extend beyond the fiscal year in which it becomes effective. Such a contract shall stipulate that it does not constitute a direct or indirect pledge of the taxing power or full faith and credit of any governmental unit.

History

(1993 (Reg. Sess., 1994), c. 775, s. 3; 2002-161, s. 6.)

§ 143-64.17E. Payments under contract.

A local governmental unit may use any funds, whether operating or capital, that are not otherwise restricted by law for the payment of a guaranteed energy savings contract. State appropriations to any local governmental unit shall not be reduced as a result of energy savings occurring as a result of a guaranteed energy savings contract.

History

(1993 (Reg. Sess., 1994), c. 775, s. 3.)

§ 143-64.17F. State agencies to use contracts when feasible; rules; recommendations.

1. State governmental units shall evaluate the use of guaranteed energy savings contracts in reducing energy costs and may use those contracts when feasible and practical.
2. The Department of Administration, in consultation with the Department of Environmental Quality, through the State Energy Office, shall adopt rules for: (i) agency evaluation of guaranteed energy savings contracts; (ii) establishing time periods for consideration of guaranteed energy savings contracts by the Office of State Budget and Management, the Office of the State Treasurer, and the Council of State, and (iii) setting measurements and verification criteria, including review, audit, and precertification. Prior to adopting any rules pursuant to this section, the Department shall consult with and obtain approval of those rules from the State Treasurer. The rules adopted pursuant to this subsection shall not apply to energy conservation measures implemented pursuant to G.S. 143-64.17L.
3. The Department of Administration, and the Department of Environmental Quality through the State Energy Office, may provide to the Council of State its recommendations concerning any energy savings contracts being considered.

History

(2002-161, s. 7; 2003-138, s. 2; 2009-446, s. 1(d); 2011-145, s. 9.6D(d); 2013-360, s. 15.22(d); 2015-241, s. 14.30(u).)

Editor's Note. - Session Laws 2002-161, s. 12, provides that nothing in the act limits the use of any method of contracting authorized by local law or other applicable laws.

Session Laws 2013-360, s. 15.22(a), provides: "The State Energy Office is hereby transferred from the Department of Commerce to the Department of Environment and Natural Resources. This transfer shall have all of the elements of a Type I transfer, as defined in G.S. 143A-6."

Session Laws 2013-360, s. 1.1, provides: "This act shall be known as the 'Current Operations and Capital Improvements Appropriations Act of 2013.'"

Session Laws 2013-360, s. 38.2, provides: "Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2013-2015 fiscal biennium, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2013-2015 fiscal biennium."

Session Laws 2013-360, s. 38.5, is a severability clause.

Effect of Amendments. - Session Laws 2009-446, s. 1(d), effective August 7, 2009, in subsection (b), inserted "in consultation with the Department of Commerce"; and in subsection (c), inserted "and the Department of Commerce."

Session Laws 2011-145, s. 9.6D(d), effective July 1, 2011, added the last sentence in subsection (b).

Session Laws 2013-360, s. 15.22(d), effective July 1, 2013, substituted "Environment and Natural Resources" for "Commerce" in subsections (b) and (c).

Session Laws 2015-241, s. 14.30(u), effective July 1, 2015, substituted "Department of Environmental Quality" for "Department of Environment and Natural Resources" in subsections (b) and (c).

§ 143-64.17G. Report on guaranteed energy savings contracts entered into by local governmental units.

A local governmental unit that enters into a guaranteed energy savings contract must report the contract and the terms of the contract to the Local Government Commission and the State Energy Office of the Department of Environmental Quality. The Commission shall compile the information and report it biennially to the Joint Commission on Governmental Operations. In compiling the information, the Local Government Commission shall include information on the energy savings expected to be realized from a contract and, with the assistance of the Office of State Construction and the State Energy Office, shall evaluate whether expected savings have in fact been realized.

History

(1993 (Reg. Sess., 1994), c. 775, s. 9; 2006-190, s. 4; 2009-375, s. 3; 2013-360, s. 15.22(e); 2015-241, s. 14.30(u).)

Editor's Note. - Session Laws 1993 (Reg. Sess., 1994), c. 775, s. 9, has been codified at this section at the direction of the Revisor of Statutes.

Session Laws 1993 (Reg. Sess., 1994), c. 775, s. 10, as amended by Session Laws 1995, c. 295, s. 3, provided: "A local governmental unit may not enter into a guaranteed energy savings contract under Part 2 of Article 3B of Chapter 143 of the General Statutes, as enacted by this act, on or after July 1, 1999." Session Laws 1999-235, s. 4, repealed this provision.

Session Laws 2013-360, s. 15.22(a), provides: "The State Energy Office is hereby transferred from the Department of Commerce to the Department of Environment and Natural Resources. This transfer shall have all of the elements of a Type I transfer, as defined in G.S. 143A-6."

Session Laws 2013-360, s. 1.1, provides: "This act shall be known as the 'Current Operations and Capital Improvements Appropriations Act of 2013.'"

Session Laws 2013-360, s. 38.2, provides: "Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2013-2015 fiscal biennium, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2013-2015 fiscal biennium."

Session Laws 2013-360, s. 38.5, is a severability clause.

Effect of Amendments. - Session Laws 2006-190, s. 4, effective August 3, 2006, and applicable to contracts entered into or renewed on or after date, substituted "contracts entered into by local governmental units" for "contracts" in the section heading.

Session Laws 2009-375, s. 3, effective July 31, 2009, in the first sentence, added "and the State Energy Office of the Department of Administration" at the end, and in the last sentence, inserted "and the State Energy Office" near the middle.

Session Laws 2013-360, s. 15.22(e), effective July 1, 2013, substituted "Environment and Natural Resources" for "Administration."

Session Laws 2015-241, s. 14.30(u), effective July 1, 2015, substituted "Department of Environmental Quality" for "Department of Environment and Natural Resources" in the first sentence.

§ 143-64.17H. Report on guaranteed energy savings contracts entered into by State governmental units.

A State governmental unit that enters into a guaranteed energy savings contract or implements an energy conservation measure pursuant to G.S. 143-64.17L must report either (i) the contract and the terms of the contract or (ii) the implementation of the measure to the State Energy Office of the Department of Environmental Quality within 30 days of the date the contract is entered into or the measure is implemented. In addition, within 60 days after each annual anniversary date of a guaranteed energy savings contract, the State governmental unit must report the status of the contract to the State Energy Office, including any details required by the State Energy Office. The State Energy Office shall compile the information for each fiscal year and report it to the Joint Legislative Oversight Committee on Agriculture and Natural and Economic Resources, the Fiscal Research Division, and the Local Government Commission annually by December 1. In compiling the information, the State Energy Office shall include information on the energy savings expected to be realized from a contract or implementation and shall evaluate whether expected savings have in fact been realized.

History

(2002-161, s. 8; 2006-190, s. 5; 2009-446, s. 1(c); 2011-145, s. 9.6D(e); 2013-360, s. 15.22(f); 2015-241, s. 14.30(u); 2017-57, s. 14.1(g).)

Editor's Note. - Session Laws 2002-161, s. 12, provides that nothing in the act limits the use of any method of contracting authorized by local law or other applicable laws.

Session Laws 2013-360, s. 15.22(a), provides: "The State Energy Office is hereby transferred from the Department of Commerce to the Department of Environment and Natural Resources. This transfer shall have all of the elements of a Type I transfer, as defined in G.S. 143A-6."

Session Laws 2013-360, s. 1.1, provides: "This act shall be known as the 'Current Operations and Capital Improvements Appropriations Act of 2013.'"

Session Laws 2013-360, s. 38.2, provides: "Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2013-2015 fiscal biennium, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2013-2015 fiscal biennium."

Session Laws 2013-360, s. 38.5, is a severability clause.

Effect of Amendments. - Session Laws 2009-446, s. 1(c), effective August 7, 2009, substituted "Commerce" for "Administration" in the first sentence.

Session Laws 2011-145, s. 9.6D(e), effective July 1, 2011, rewrote the first sentence; and in the last sentence, inserted "or implementation."

Session Laws 2013-360, s. 15.22(f), effective July 1, 2013, substituted "Environment and Natural Resources" for "Commerce."

Session Laws 2015-241, s. 14.30(u), effective July 1, 2015, substituted "Department of Environmental Quality" for "Department of Environment and Natural Resources" in the first sentence.

Session Laws 2017-57, s. 14.1(g), effective July 1, 2017, substituted "Joint Legislative Oversight Committee on Agriculture and Natural and Economic Resources, the Fiscal Research Division, and" for "Joint Legislative Commission on Governmental Operations and to" in the third sentence.

§ 143-64.17I. Installment and lease purchase contracts.

A local governmental unit may provide for the acquisition, installation, or maintenance of energy conservation measures acquired pursuant to this Part by installment or lease purchase contracts in accordance with and subject to the provisions of G.S. 160A-20 and G.S. 160A-19, as applicable.

History

(2002-161, s. 8.)

Editor's Note. - Session Laws 2002-161, s. 12, provides that nothing in the act limits the use of any method of contracting authorized by local law or other applicable laws.

§ 143-64.17J. Financing by State governmental units.

State governmental units may finance the acquisition, installation, or maintenance of energy conservation measures acquired pursuant to this Part in the manner and to the extent set forth in Article 8 of Chapter 142 of the General Statutes or as otherwise authorized by law.

History

(2002-161, s. 8.)

Editor's Note. - Session Laws 2002-161, s. 12, provides that nothing in the act limits the use of any method of contracting authorized by local law or other applicable laws.

§ 143-64.17K. Inspection and compliance certification for State governmental units.

The provisions of G.S. 143-341(3) shall not apply to any energy conservation measure for State governmental units provided pursuant to this Part, except as specifically set forth in this section. Except as otherwise exempt under G.S. 116-31.11, the following shall apply to all energy conservation measures provided to State governmental units pursuant to this Part:

1. The provisions of G.S. 133-1.1.
2. Inspection and certification by:
   1. The applicable local building inspector under Part 4 of Article 18 of Chapter 153A of the General Statutes or Part 5 of Article 19 of Chapter 160A of the General Statutes; or
   2. At the election of the State governmental unit, the Department of Administration under G.S. 143-341(3)d.

The cost of compliance with this section may be included in the cost of the project in accordance with G.S. 143-64.17A(c1) and may be included in the cost financed under Article 8 of Chapter 142 of the General Statutes.

History

(2002-161, s. 8.)

Editor's Note. - Session Laws 2002-161, s. 12, provides that nothing in the act limits the use of any method of contracting authorized by local law or other applicable laws.

§ 143-64.17L. Board of Governors may authorize energy conservation measures at constituent institutions.

1. Authority. - Notwithstanding the provisions of this Part to the contrary, the Board of Governors of The University of North Carolina may authorize any constituent institution listed in subsection (e) of this section to implement an energy conservation measure without entering into a guaranteed energy savings contract if both of the following conditions are met:
   1. The Board of Governors finds that the energy savings resulting from the implementation of the energy conservation measure shall, according to the energy savings analysis received pursuant to G.S. 143-64.17M(a), equal or exceed the total cost of implementing the measure. If the proposed implementation will be financed with debt, then the energy savings analysis must project sufficient energy savings to pay the debt service on any bonds to be issued. As used in this subdivision, the term 'total cost' shall have the same meaning as it does in G.S. 143-64.17B(d).
   2. The energy conservation measure is for an existing building or utility system.
2. Scope of Authority. - In implementing an energy conservation measure pursuant to subsection (a) of this section, the Board of Governors may undertake or authorize any constituent institution listed in subsection (e) of this section to undertake any action that (i) could be required of a qualified provider under a guaranteed energy savings contract or (ii) is otherwise permissible under this Part.
3. Projects Consisting of Multiple Energy Conservation Measures. - The Board of Governors may authorize the implementation of multiple energy conservation measures simultaneously as part of a single project. When doing so, the findings required by subsection (a) of this section may be made with respect to the project as a whole and need not be made with respect to individual energy conservation measures. Similarly, the analyses required by G.S. 143-64.17M may be conducted for the project as a whole instead of for individual energy conservation measures.
4. Continuing Applicability of Part to Contracts. - If the Board of Governors or a constituent institution implements an energy conservation measure through a guaranteed energy savings contract, that contract shall accord in all respects with the requirements of this Part.
5. The Board of Governors may authorize North Carolina State University and the University of North Carolina at Charlotte to implement an energy conservation measure without entering into a guaranteed energy savings contract pursuant to this section.

History

(2011-145, s. 9.6D(a); 2013-396, s. 4(a).)

Effect of Amendments. - Session Laws 2013-396, s. 4(a), effective August 23, 2013, inserted "and the University of North Carolina at Charlotte" in subsection (e).

§ 143-64.17M. Energy savings analysis required prior to implementation; post-implementation analyses required.

1. Energy Savings Analysis Required Prior to Implementation. - Prior to implementing an energy conservation measure pursuant to G.S. 143-64.17L, an energy savings analysis shall be performed to validate the economic assumptions that purportedly support the implementation of the measure. This analysis shall be performed by a third party selected by the constituent institution and shall include an energy consumption analysis to develop a baseline of previous costs of all utilities' energy consumption for the institution on the assumption that the energy conservation measure was not undertaken. The completed analysis shall be submitted to The University of North Carolina System Office and to the State Energy Office.
2. Post-Implementation Analyses Required. - A constituent institution that implements an energy conservation measure pursuant to G.S. 143-64.17L shall retain a third party to perform an annual measurement and verification of energy savings resulting from the energy conservation measure as compared to the baseline of previous costs set forth in the energy savings analysis required by subsection (a) of this section. The third party shall annually provide a reconciliation statement based upon the results of a preagreed upon measurement, monitoring, and verification protocol which shall disclose any shortfall or surplus between the estimated energy usage and operational savings set forth in the energy savings analysis required by subsection (a) of this section and actual, not stipulated, energy usage and operational savings incurred during a given year.

If a reconciliation statement reveals a shortfall in energy savings for a particular year, the constituent institution shall be responsible for and shall pay the shortfall. However, the institution shall not be held responsible for losses due to natural disasters or other emergencies. Any surplus shall be retained by the institution and may be used in the same manner as any other energy savings.

History

(2011-145, s. 9.6D(b); 2018-12, s. 17.)

Effect of Amendments. - Session Laws 2018-12, s. 17, effective July 1, 2018, substituted "System Office" for "General Administration" in the last sentence of subsection (a).

§§ 143-64.17N through 143-64.19: Reserved for future codification purposes.

§ 143-64.20. "Agency" defined; Governor's approval required.

1. For purposes of this Article the term "agency" shall mean every State agency, institution, board, commission, bureau, department, division, council, member of the Council of State, or officer of the State government.
2. No State agency shall contract to obtain services of a consultant or advisory nature unless the proposed contract has been justified to and approved in writing by the Governor of North Carolina. All written approvals shall be maintained on file as part of the agency's records for not less than five years.

History

(1975, c. 887, s. 1.)

Editor's Note. - The preamble to Session Laws 2011-10, provides: "Whereas, North Carolina's Unemployment Insurance Trust Fund balance had a deficit of $2,500,000,000, as of December 31, 2010, according to the Employment Security Commission; and

"Whereas, the State owes the federal government $2,500,000,000 for loan liabilities incurred by the Employment Security Commission to continue unemployment insurance benefits payments to jobless North Carolinians during the current economic crisis; and

"Whereas, the total collected by the State in unemployment insurance taxes in the 12-month period ending December 2010 amounted to $955,200,000, while the sum paid in unemployment insurance benefits for the same period totaled $1,900,000,000; and

"Whereas, businesses large and small pay into the unemployment insurance system with the expectation that their contributions will be sufficient to provide assistance to their qualified former jobless employees; and

"Whereas, it is in the best interest of the employers and employees of this State to have the most efficient and cost-effective unemployment insurance tax structure; and

"Whereas, the current unemployment insurance tax structure no longer serves the businesses and citizens of this State in the manner required by these and future economic times; and

"Whereas, major reforms regarding the unemployment insurance tax structure must be developed and implemented as soon as practicable; Now, therefore,"

Session Laws 2011-10, ss. 1-4, provide: "1. The General Assembly finds that the State must take swift and prudent action to address the two billion five hundred million dollars ($2,500,000,000) in debt liability for unemployment insurance benefits currently owed to the federal government and the substantial deficit in the North Carolina Unemployment Insurance Trust Fund. To that end, the Department of Commerce shall contract with an independent consulting firm specializing in unemployment insurance and employment security reform to obtain recommendations on what tax structure changes would be fair to the employers of North Carolina and how these revenues, and other financial options, might be used in servicing and liquidating the State's debt and deficits incurred to pay unemployment insurance benefits.

"2. A contract to obtain services of a consultant pursuant to this act is not subject to Article 3C of Chapter 143 of the General Statutes. The consultation contract may be funded from (i) funds available within the Employment Security Commission [now Division of Employment Security of the Department of Commerce], including State funds and any federal funds that may be used for the purposes of this act, and (ii) non-State or nongovernmental funds, grants, and in-kind contributions specifically designated for the purpose of carrying out the analysis required by this act.

"3. The Department of Commerce shall provide the Fiscal Research Division and the Program Evaluation Division with periodic updates on the progress of the analysis. Within 45 days from the completion of the independent consultant's analysis, the Department of Commerce shall report to the Governor and to the General Assembly on the independent consultant's recommendations for reform of the State's unemployment insurance tax structure.

"4. The Employment Security Commission [now Division of Employment Security of the Department of Commerce] and the Department of Revenue shall cooperate fully with the Department of Commerce, the Fiscal Research Division, and the Program Evaluation Division by giving all information and all data within their possession or ascertainable from their records necessary to carry out the purposes of this act."

Opinions of Attorney General

Applicability of Article to Contracts for Planning, Design and Construction of Highways. - The provisions of Session Laws 1975, Chapter 887 applicable to "contracts for services of a consultant or advisory nature" do not include contracts for the planning, design and construction of highways which the Board of Transportation is authorized to enter into by the provisions of Chapter 136 of the General Statutes. See opinion of Attorney General to Mr. Billy Rose, 45 N.C.A.G. 71 (1975).

Contracts with Experts, Consultants, or Other Professional Advisors to Review Conversion Plans Are Exempt from Articles 3 and 3C of Chapter 143. - The Commissioner of Insurance has statutory authority to contract with experts, consultants, or other professional advisors to review conversion plans without adhering to the requirements set forth in Articles 3 and 3C of Chapter 143, G.S. 143-48 et seq. and G.S. 143-64.20 et seq., the only statutory requirement that must be met by the Commissioner is that the costs for the personal professional service contracts must not exceed an amount that is reasonable and appropriate for the review of the plan. See opinion of Attorney General to Peter A. Kolbe, General Counsel, North Carolina Department of Insurance, 2001 N.C. AG LEXIS 28 (8/24/01).

Contracts negotiated pursuant to G.S. 58-19-15(f) are not exempt from the requirements of Article 3C of Chapter 143, G.S. 143-64.20 et seq. See opinion of Attorney General to Peter A. Kolbe, General Counsel, North Carolina Department of Insurance, 2001 N.C. AG LEXIS 29 (10/3/01).

The State Employees' Comprehensive Major Medical Plan is exempt from the requirements of Article 3C of Chapter 143, G.S. 143-64.20 et seq., with respect to contracts to assist the plan in negotiating preferred provider networks. See opinion of Attorney General to Jack W. Walker, Executive Administrator, Teachers' & State Employees' Comprehensive Major Medical Plan, 2001 N.C. AG LEXIS 38 (8/23/01).

§ 143-64.21. Findings to be made by Governor.

The Governor, before granting written approval of any such contract, must find:

1. That the contract is reasonably necessary to the proper function of such State agency; and
2. That such services or advice cannot be performed within the resources of such State agency;
3. That the estimated cost is reasonable as compared with the likely benefits or results; and
4. That the General Assembly has appropriated funds for such contract or that such funds are otherwise available; and
5. That all rules and regulations of the Department of Administration have been or will be complied with.

History

(1975, c. 879, s. 46; c. 887, s. 2.)

Opinions of Attorney General

Compensation of Expert Retained to Assist in Reviewing Proposed Acquisition of Control. - Prior to granting written approval for a contract for the Commissioner of Insurance to retain an expert to assist in reviewing a proposed acquisition of control, the Governor must find that the estimated cost is reasonable as compared with the likely benefits or results. See opinion of Attorney General to Peter A. Kolbe, General Counsel, North Carolina Department of Insurance, 2001 N.C. AG LEXIS 29 (10/3/01).

§ 143-64.22. Contracts with other State agencies; competitive proposals.

The rules of the Department of Administration shall include provisions to assure that all consultant contracts let by State agencies shall be made with other agencies of the State of North Carolina, if such contract can reasonably be performed by them; or otherwise, that wherever practicable a sufficient number of sources for the performance of such contract are solicited for competitive proposals and that such proposals are properly evaluated for award to the State's best advantage.

History

(1975, c. 879, s. 46; c. 887, s. 3; 1987, c. 827, s. 217.)

§ 143-64.23. Compliance required; penalty for violation of Article.

No disbursement of State funds shall be made and no such contract shall be binding until the provisions of G.S. 143-64.21 and 143-64.22 have been complied with. Any employee or official of the State of North Carolina who violates this Article shall be liable to repay any amount expended in violation of this Article, plus court costs.

History

(1975, c. 887, s. 4.)

§ 143-64.24. Applicability of Article.

This Article shall not apply to the following agencies:

1. The General Assembly.
2. Special study commissions.
3. The Research Triangle Institute.
4. The School of Government at the University of North Carolina at Chapel Hill.
5. Attorneys employed by the North Carolina Department of Justice.
6. Physicians or doctors performing contractual services for any State agency.
7. Independent Review Organizations selected by the Commissioner of Insurance pursuant to G.S. 58-50-85.
8. The University of North Carolina. The Board of Governors of the University of North Carolina must adopt policies and procedures governing contracts to obtain the services of a consultant by the constituent institutions of the University of North Carolina.

History

(1975, c. 887, s. 5; 1977, c. 802, s. 50.57; 2001-446, s. 4.6A; 2006-95, s. 2.1; 2006-264, s. 29( l ).)

Effect of Amendments. - Session Laws 2006-95, s 2.1, effective July 10, 2006, rewrote the section which read: "This Article shall not apply to the General Assembly, special study commissions, the Research Triangle Institute, or the Institute of Government, nor shall it apply to attorneys employed by the North Carolina Department of Justice, or physicians or doctors performing contractual services for any State agency. This Article shall not apply to Independent Review Organizations selected by the Commissioner of Insurance pursuant to G.S. 58-50-85.".

Session Laws 2006-264, s. 29( l ), effective August 27, 2006, substituted "The School of Government at the University of North Carolina at Chapel Hill" for "The Institute of Government" in subdivision (4).

Opinions of Attorney General

Inapplicability to Certain Contracts. - This section is inapplicable to contracts entered into by the Department of Administration with engineering or architectural firms for planning, design, construction and renovation services. See opinion of Attorney General to Mr. Ray DeBruhl, Construction Division, Department of Administration, 51 N.C.A.G. 35 (1981).

§§ 143-64.25 through 143-64.30: Reserved for future codification purposes.

§ 143-64.31. Declaration of public policy.

1. It is the public policy of this State and all public subdivisions and Local Governmental Units thereof, except in cases of special emergency involving the health and safety of the people or their property, to announce all requirements for architectural, engineering, surveying, construction management at risk services, design-build services, and public-private partnership construction services to select firms qualified to provide such services on the basis of demonstrated competence and qualification for the type of professional services required without regard to fee other than unit price information at this stage, and thereafter to negotiate a contract for those services at a fair and reasonable fee with the best qualified firm. If a contract cannot be negotiated with the best qualified firm, negotiations with that firm shall be terminated and initiated with the next best qualified firm. Selection of a firm under this Article shall include the use of good faith efforts by the public entity to notify minority firms of the opportunity to submit qualifications for consideration by the public entity.
2. A resident firm providing architectural, engineering, surveying, construction management at risk services, design-build services, or public-private partnership construction services shall be granted a preference over a nonresident firm, in the same manner, on the same basis, and to the extent that a preference is granted in awarding contracts for these services by the other state to its resident firms over firms resident in the State of North Carolina. For purposes of this section, a resident firm is a firm that has paid unemployment taxes or income taxes in North Carolina and whose principal place of business is located in this State.
3. Recodified as G.S. 143-133.1(a) by Session Laws 2014-42, s. 3, effective October 1, 2014, and applicable to contracts awarded on or after that date.
4. Recodified as G.S. 143-133.1(b) by Session Laws 2014-42, s. 3, effective October 1, 2014, and applicable to contracts awarded on or after that date.
5. Recodified as G.S. 143-133.1(c) by Session Laws 2014-42, s. 3, effective October 1, 2014, and applicable to contracts awarded on or after that date.
6. For purposes of this Article, the definition in G.S. 143-128.1B and G.S. 143-128.1C shall apply.
7. Except as provided in this subsection, no work product or design may be solicited, submitted, or considered as part of the selection process under this Article; and no costs or fees, other than unit price information, may be solicited, submitted, or considered as part of the selection process under this Article. Examples of prior completed work may be solicited, submitted, and considered when determining demonstrated competence and qualification of professional services; and discussion of concepts or approaches to the project, including impact on project schedules, is encouraged.

History

(1987, c. 102, s. 1; 1989, c. 230, s. 2; 2001-496, s. 1; 2006-210, s. 1; 2013-401, s. 1; 2014-42, ss. 3, 4.)

Local Modification. - (As to certain economic development projects) Buncombe: 2013-31, s. 1 (expires June 30, 2016); 2013-40, s. 1 (expires June 30, 2016); (As to school building contracts) Cabarrus: 2009-430, s. 2 (expires June 30, 2014); Cherokee: 2007-48, s. 1; Currituck: 1993 (Reg. Sess., 1994), c. 668, s. 1 (expires on completion of project or January 1, 2004); Davidson: 2012-63 (expires June 30, 2014): Durham: 2013-386, s. 5(a); (As to water treatment and wastewater treatment plant expansion projects) Harnett: 2007-214, s. 1 (expires December 31, 2010); Johnston: 1995 (Reg. Sess., 1996), c. 611, s. 1; 2002-93, s. 2 (expires June 30, 2005); 2008-40 (as to contracts for renovations to the county courthouse); Rockingham: 2012-140, s. 1 (expires June 30, 2017); (As to Article 3D) Union: 2012-59 (expires June 26, 2017); Wayne: 2011-98, s. 1 (expires December 31, 2014); city of Charlotte: 2000-26, s. 8.87 as added by 2011-180, s. 3 (expires June 30, 2016); (as to water and wastewater treatment plants) 2007-312, s. 1; city of Clinton: 2013-115, ss. 1, 2 (as to use of design-build method of construction for certain projects awarded before June 30, 2015 involving city-owned facilities); city of Durham: 2013-386, s. 4 (as to Article 3D); town of Cornelius: 1971, c. 288, s. 1.4, as added by 2011-180, s. 1 and amended by 2011-326, s. 20 (expires July 1, 2018), and as amended by 2013-352, s. 1 (expires July 1, 2016); Lower Cape Fear Water and Sewer Authority: 2012-60, s. 1 (expires December 31, 2015).

Cross References. - As to public contracts, see G.S. 143-128 et seq.

Editor's Note. - Session Laws 2008-107, s. 27.7A, provides: "The Department of Administration shall contract with North Carolina Freedom Monument Project, Inc., a nonprofit corporation, for the design and construction of the North Carolina Freedom Project. Notwithstanding G.S. 143-64.31 through 143-64.34 and G.S. 143-135.26, North Carolina Freedom Monument Project, Inc., shall select the designer and consultant for the project."

Session Laws 2008-107, s. 1.2, provides: "This act shall be known as 'The Current Operations and Capital Improvements Appropriations Act of 2008'."

Session Laws 2008-107, s. 30.3, provides: "Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2008-2009 fiscal year, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2008-2009 fiscal year."

Session Laws 2008-107, s. 30.5, is a severability clause.

Session Laws 2013-352, s. 1, amended the local modification of this section in Session Laws 2011-180, s. 1, by extending the expiration date of that provision from July 1, 2013 until July 1, 2016. However, Session Laws 2013-352, s. 1, did not account for the amendment to Session Laws 2011-180, s. 1, by Session Laws 2011-326, s. 20, which extended the expiration date from July 1, 2013 until July 1, 2018.

Session Laws 2013-401, provides in its preamble: "Whereas, the legislature recognizes that there is a public need for the design, construction, improvement, renovation, and expansion of high-performing public buildings within the State of North Carolina; and

"Whereas, the public need may not be, in limited situations, wholly satisfied by existing procurement methods in which public buildings are designed, constructed, improved, renovated, or expanded; and

"Whereas, many local governmental entities request special legislative authorization to enter into public-private partnerships and use design-build contracting every legislative session; and

"Whereas, in some instances, more efficient delivery of quality design and construction can be realized when a governmental entity is authorized to utilize an integrated approach for the design and construction of a project under one contract with a single point of responsibility; and

"Whereas, the design-build integrated approach to project delivery, based upon qualifications and experience, in some instances, can yield improved collaboration among design professionals, builders, and owners throughout the entire process and deliver a quality and cost-efficient building; and

"Whereas, certain governmental entities within the State lack the financial resources required to undertake capital building construction projects that are necessary to satisfy critical public needs; and

"Whereas, partnerships with private developers may offer an effective financial mechanism for governmental entities to secure public buildings to satisfy critical public needs that cannot otherwise be met; and

"Whereas, the legislature recognizes that the general public must have confidence in governmental entities' processes for construction contracting; and

"Whereas, the legislature realizes that open competition delivers the best value for taxpayers and public owners; and

"Whereas, the legislature seeks to create transparent, fair, and equitable contracting procedures for the use of public funds in government construction contracting; and

"Whereas, the legislation proposed in this act is not intended to affect the existing statutes, regulations, or practices relevant to projects administered by the North Carolina Department of Transportation nor licensing requirements of designers or contractors; Now, therefore,"

Session Laws 2014-42, s. 3, effective October 1, 2014, recodified former subsections (b), (c), and (d) of this section as subsections (a), (b), and (c), respectively, of G.S. 143-133.1.

Session Laws 2014-42, s. 10, made the amendment to this section by Session Laws 2014-42, ss. 3 and 4, applicable to contracts awarded on or after October 1, 2014.

Session Laws 2015-241, s. 14.5(b), provides: "The General Assembly finds that there is a need for timely initiation of projects authorized by this section during the biennium to expedite mitigation of impaired waters of the State. Therefore, any contract, contract extension, lease, purchase, or other agreement entered into under this section shall not be subject to the requirements of Article 3, 3D, or 8 of Chapter 143 of the General Statutes in order to expedite deployment. Session Laws 2015-241, s. 14.5(a), (c), and (d) provided for funding to continue the Jordan Lake Nutrient Mitigation Demonstration Project established in Session Laws 2013-360, s. 14.3A; for an effective date delay for modification of existing or proposed rules related to basinwide nutrient management and mitigation of water quality of impaired water bodes; and for a study [due no later than April 1, 2016] of in situ strategies beyond traditional watershed controls that have the potential to mitigate water quality impairments resulting from water quality variables that impair or have the potential to impair water bodies of the State." However, Session Laws 2015-241, s. 14.5(a) and (c) were repealed by Session Laws 2016-94, s. 14.13(b) and further provided that: "the Department shall terminate the demonstration project authorized by that section. Any funds allocated under subsection (a) of Section 14.5 of S.L. 2015-241 that are unspent and unencumbered on the effective date of this act shall revert to the Clean Water Management Trust Fund." Session Laws 2016-94, s. 14.13(j) provides: "Subsection (b) of this section becomes effective on the earlier of July 1, 2016, or the date of termination of a contract related to in situ water quality remediation strategies that was previously extended pursuant to Section 14.5 of S.L. 2015-241."

Session Laws 2015-241, s. 1.1, provides: "This act shall be known as `The Current Operations and Capital Improvements Appropriations Act of 2015.'"

Session Laws 2015-241, s. 33.4, provides: "Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2015-2017 fiscal biennium, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2015-2017 fiscal biennium."

Session Laws 2015-241, s. 33.6, is a severability clause.

Effect of Amendments. - Session Laws 2006-210, s. 1, effective August 8, 2006, added subsection (a1).

Session Laws 2013-401, s. 1, inserted "design-build services, and public-private partnership construction services," and made minor stylistic changes in subsections (a) and (a1); inserted "design-builder, or private developer under a public-private partnership" twice in subsection (b), or similar language in subdivisions (b)(1) through (b)(4); added subdivision (b)(5); redesignated former subsection (b) as present subsection (b) and (c); and added subsections (d) and (e). Fore effective date and applicability, see Editor's note.

Session Laws 2014-42, s. 4, effective October 1, 2014, added subsection (f). See Editor's note for applicability.

Opinions of Attorney General

This Section Does Not Apply to Subcontract Services Procured by Private Firms. - This section applies only to the procurement of architectural, engineering, or surveying services by state or local government entities and does not extend to subcontract services procured by private firms. See opinion of Attorney General to Jerry T. Carter, Executive Director, N.C. Board of Examiners for Engineers and Surveyors, 2001 N.C. AG LEXIS 23 (6/19/2001).

Legislative exemptions authorizing public "design-build" contracts are not intended to require strict compliance with this section; such should be presumed to supersede strict qualifications-based selection methods unless specifically stated otherwise in the authorizing legislation. See opinion of Attorney General to Jerry T. Carter, Executive Director, N.C. Board of Examiners for Engineers and Surveyors, 2001 N.C. AG LEXIS 23 (6/19/2001).

Award of Professional Services Contracts on Competitive Basis. - With respect to state-funded projects, professional services contracts may be awarded on a competitive basis in limited circumstances; however, before these contracts are awarded as a routine matter, the Department of Transportation should adopt rules and regulations governing their award. See opinion of Attorney General to Mr. Len Hill, P.E., Deputy Highway Administrator - Preconstruction, North Carolina Department of Transportation, 2000 N.C. AG LEXIS 3 (5/31/2000).

§ 143-64.32. Written exemption of particular contracts.

Units of local government or the North Carolina Department of Transportation may in writing exempt particular projects from the provisions of this Article in the case of proposed projects where an estimated professional fee is in an amount less than fifty thousand dollars ($50,000).

History

(1987, c. 102, s. 2; 2013-401, s. 2.)

Local Modification. - (As to certain economic development projects) Buncombe: 2013-31, s. 1 (expires June 30, 2016); 2013-40, s. 1 (expires June 30, 2016); (As to school building contracts) Cabarrus: 2009-430, s. 2 (expires June 30, 2014); Cherokee: 2007-48, s. 1; Currituck: 1993 (Reg. Sess., 1994), c. 668, s. 1 (expires on completion of project or January 1, 2004); Davidson: 2012-63 (expires June 30, 2014); Durham: 2013-386, s. 5(a); (As to water treatment and wastewater treatment plant expansion projects) Harnett: 2007-214, s. 1 (expires December 31, 2010); Johnston: 1995 (Reg. Sess., 1996), c. 611, s. 1; 2002-93, s. 2 (expires June 30, 2005); 2008-40 (as to contracts for renovations to the county courthouse); Rockingham: 2012-140, s. 1 (expires June 30, 2017); Wayne: 2011-98, s. 1 (expires December 31, 2014); city of Charlotte: 2000-26, s. 8.87 as added by 2011-180, s. 3 (expires June 30, 2016); (as to water and wastewater treatment plants) 2007-312, s. 1; city of Clinton: 2013-115, ss. 1, 2 (as to use of design-build method of construction for certain projects awarded before June 30, 2015 involving city-owned facilities); town of Cornelius: 1971, c. 288, s. 1.4, as added by 2011-180, s. 1 and amended by 2011-326, s. 20 (expires July 1, 2018), and as amended by 2013-352, s. 1 (expires July 1, 2016); Lower Cape Fear Water and Sewer Authority: 2012-60, s. 1 (expires December 31, 2015).

Editor's Note. - Session Laws 2013-352, s. 1, amended the local modification of this section in Session Laws 2011-180, s. 1, by extending the expiration date of that provision from July 1, 2013 until July 1, 2016. However, Session Laws 2013-352, s. 1, did not account for the amendment to Session Laws 2011-180, s. 1, by Session Laws 2011-326, s. 20, which extended the expiration date from July 1, 2013 until July 1, 2018.

Session Laws 2013-401, provides in its preamble: "Whereas, the legislature recognizes that there is a public need for the design, construction, improvement, renovation, and expansion of high-performing public buildings within the State of North Carolina; and

"Whereas, the public need may not be, in limited situations, wholly satisfied by existing procurement methods in which public buildings are designed, constructed, improved, renovated, or expanded; and

"Whereas, many local governmental entities request special legislative authorization to enter into public-private partnerships and use design-build contracting every legislative session; and

"Whereas, in some instances, more efficient delivery of quality design and construction can be realized when a governmental entity is authorized to utilize an integrated approach for the design and construction of a project under one contract with a single point of responsibility; and

"Whereas, the design-build integrated approach to project delivery, based upon qualifications and experience, in some instances, can yield improved collaboration among design professionals, builders, and owners throughout the entire process and deliver a quality and cost-efficient building; and

"Whereas, certain governmental entities within the State lack the financial resources required to undertake capital building construction projects that are necessary to satisfy critical public needs; and

"Whereas, partnerships with private developers may offer an effective financial mechanism for governmental entities to secure public buildings to satisfy critical public needs that cannot otherwise be met; and

"Whereas, the legislature recognizes that the general public must have confidence in governmental entities' processes for construction contracting; and

"Whereas, the legislature realizes that open competition delivers the best value for taxpayers and public owners; and

"Whereas, the legislature seeks to create transparent, fair, and equitable contracting procedures for the use of public funds in government construction contracting; and

"Whereas, the legislation proposed in this act is not intended to affect the existing statutes, regulations, or practices relevant to projects administered by the North Carolina Department of Transportation nor licensing requirements of designers or contractors; Now, therefore,"

Effect of Amendments. - Session Laws 2013-401, s. 2, rewrote the section. For effective date and applicability, see Editor's note.

§ 143-64.33. Advice in selecting consultants or negotiating consultant contracts.

On architectural, engineering, or surveying contracts, the Department of Transportation or the Department of Administration may provide, upon request by a county, city, town or other subdivision of the State, advice in the process of selecting consultants or in negotiating consultant contracts with architects, engineers, or surveyors or any or all.

History

(1987, c. 102, s. 3; 1989, c. 230, s. 3; c. 770, s. 44.)

§ 143-64.34. Exemption of certain projects.

State capital improvement projects under the jurisdiction of the State Building Commission, capital improvement projects of The University of North Carolina, and community college capital improvement projects, where the estimated expenditure of public money is less than five hundred thousand dollars ($500,000), are exempt from the provisions of this Article.

History

(1987, c. 102, s. 3.1; c. 830, s. 78(a); 1997-314, s. 1; 1997-412, s. 5; 2001-496, ss. 8(b), 8(c); 2005-300, s. 1; 2005-370, s. 1; 2007-322, s. 2; 2007-446, s. 7.)

Editor's Note. - Session Laws 2001-496, s. 8(b), as amended by Session Laws 2005-300, s. 1, repealed Session Laws 1997-412, s. 5.1, which effective July 1, 2001, would have deleted subsection (b), concerning exemption of capital improvement projects of the University of North Carolina where the expenditure is less than $300,000.

Session Laws 2007-322, s. 13, provides: "This act is effective when it becomes law [July 30, 2007]. Sections 1 through 4 of this act apply to construction projects for which bids or proposals are solicited on or after that date. Section 5 of this act applies to construction or repair work commenced on or after that date."

Effect of Amendments. - Session Laws 2001-496, s. 8(c), as amended by Session Laws 2005-300, s. 1, effective July 1, 2001, reenacted Session laws 1997-412, s. 5, which substituted "projects" for "State Capital Improvement Projects" in the section catchline; added the subsection (a) designation; and added subsection (b).

Session Laws 2005-370, s. 1, effective October 1, 2005, inserted "and community college capital improvement projects," in subsection (a); added "all of the following apply" to the end of the first paragraph of subsection (b); added subsection (c); and made minor stylistic and punctuation changes.

Session Laws 2007-322, s. 2, effective July 30, 2007, substituted "five hundred thousand dollars ($500,000)" for "three hundred thousand dollars ($300,000)" in the middle of the introductory paragraph of subsection (b). For applicability, see Editor's note.

Session Laws 2007-446, s. 7, effective August 23, 2007, and applicable to projects that are funded on or after July 1, 2007, rewrote this section.

Legal Periodicals. - For 1997 legislative survey, see 20 Campbell L. Rev. 437.

§§ 143-64.35 through 143-64.49: Reserved for future codification purposes.

§ 143-64.50. State/public school-contracted on-, near-site child care facilities; location authorization; contract for program services authorization.

State agencies and local boards of education may contract with any city, county, or other political subdivision of the State, governmental or private agency, person, association, or corporation to establish child care services in State buildings and public schools. If the child care program is located in a State building that is not used for legislative activity, the procedure for approving the location of the program shall be pursuant to G.S. 143-341(4). If the child care program is located in a State building used for legislative activity, the procedure for approving the location of the program shall be pursuant to G.S. 120-32.1. If the child care program is located in any other State building, the procedure for contracting for child care services shall be pursuant to G.S. 143-49(3). If the child care program is located in a State building used for legislative activity, the procedure for contracting for child care services shall be pursuant to G.S. 120-32(4).

Contracts for services awarded pursuant to this section are exempt from the provisions of G.S. 66-58(a) and the contract may provide for payment of rent by the lessee or the operator of the facility.

History

(1991, c. 345, s. 1; 1997-506, s. 49.)

Editor's Note. - Section 2 of Session Laws 1991, c. 345 provides: "Nothing in this act shall be construed to allow the State of North Carolina to expend funds to implement the provisions of this act."

§ 143-64.51. State/public school-contracted child care facilities; licensing requirements.

All child care facilities established pursuant to this Article shall be licensed and regulated under the provisions of Article 7 of Chapter 110 of the General Statutes, entitled "Child Care Facilities."

History

(1991, c. 345, s. 1; 1997-506, s. 50.)

§ 143-64.52. State/public school-contracted child care facilities; limitation of State/local board liability.

The operators of the child care facilities established pursuant to this Article shall assume all financial and legal responsibility for the operation of the programs and shall maintain adequate insurance coverage for the operations taking place in the facilities. Neither the operator or any of the staff of the facilities are considered State employees or local board of education employees by virtue of this Article alone. The State or the local boards of education are financially and legally responsible only for the maintenance of the building.

History

(1991, c. 345, s. 1; 1997-506, s. 51.)

§ 143-64.60. State Privacy Act.

1. It is unlawful for any State or local government agency to deny to any individual any right, benefit, or privilege provided by law because of such individual's refusal to disclose his social security account number.
   1. Any disclosure which is required or permitted by federal statute, or
   2. The disclosure of a social security number to any State or local agency maintaining a system of records in existence and operating before January 1, 1975, if such disclosure was required under statute or regulation adopted prior to such date to verify the identity of an individual.
2. Any State or local government agency which requests an individual to disclose his social security account number shall inform that individual whether that disclosure is mandatory or voluntary, by what statutory or other authority such number is solicited, and what uses will be made of it.

The provisions of this subsection shall not apply with respect to:

History

(2001-256, s. 1; 2001-487, s. 87.)

§§ 143-64.61 through 143-64.69: Reserved for future codification purposes.

§ 143-64.70: Repealed by Session Laws 2015-241, s. 26.2(d), effective July 1, 2015.

History

(2001-424, ss. 6.19(a), (b); 2005-276, s. 6.38; 2007-322, s. 7; 2013-375, s. 1; 2013-382, s. 9.1(c); 2013-410, s. 38.5; repealed by 2015-241, s. 26.2(d), effective July 1, 2015.)

Editor's Note. - Former G.S. 143-64.70 pertained to personal service contracts.

Effect of Amendments. - Session Laws 2005-276, s. 6.38, effective July 1, 2005, in subsection (a), in the introductory paragraph, substituted "January 1 of each year" for "January 1, 2002, and quarterly thereafter" and added "that have an annual expenditure greater than five thousand dollars ($5,000)"; added subdivision (a)(7); and in subsection (b), substituted "March 15 of each year" for "March 15, 2002, and biannually thereafter."

Session Laws 2007-322, s. 7, effective July 30, 2007, rewrote subsection (a).

Session Laws 2013-375, s. 1, effective July 29, 2013, added subsection (c).

Session Laws 2013-382, s. 9.1(c), effective August 21, 2013, substituted "Office of State Human Resources" for "Office of State Personnel" in subsections (a) and (b).

Session Laws 2013-410, s. 38.5, effective August 23, 2013, deleted subsection (c).

§§ 143-64.71 through 143-64.79: Reserved for future codification purposes.

§ 143-64.80. Overpayments of State funds to persons in State-supported positions; recoupment required.

1. An overpayment of State funds to any person in a State-funded position, whether in the form of salary or otherwise, shall be recouped by the entity that made the overpayment and, to the extent allowed by law, the amount of the overpayment may be offset against the net wages of the person receiving the overpayment.
2. No State department, agency, or institution, or other State-funded entity may forgive repayment of an overpayment of State funds, but shall have a duty to pursue the repayment of State funds by all lawful means available, including the filing of a civil action in the General Court of Justice.

History

(2003-263, s. 1.)

Editor's Note. - Session Laws 2018-136, 3rd Ex. Sess., s. 1.1, provides: "This act shall be known as '2018 Hurricane Florence Disaster Recovery Act."'

Session Laws 2018-136, 3rd Ex. Sess., s. 5.10, provides: "Notwithstanding G.S. 143-64.80, the Office of State Controller shall waive any outstanding debt arising from, or as a result of, any State active duty performed by North Carolina National Guard Service members in response to Hurricane Matthew in 2016 due to overpayment of state active duty salary. The Department of Public Safety shall reimburse those North Carolina National Guard Service members who have already reimbursed the State for such overpayments."

§§ 143-64.81 through 143-64.85: Reserved for future codification purposes.

§ 143-108. Secretary to be elected from directors.

The board of directors of the various State institutions shall elect one of their number as secretary, who shall act as such at all regular or special meetings of such boards.

History

(1907, c. 883, s. 1; C.S., s. 7517.)

§ 143-109. Directors to elect officers and employees.

All officers and employees of the various State institutions who hold elective positions shall be nominated and elected by the board of directors of the respective institutions.

History

(1907, c. 883, s. 3; C.S., s. 7518.)

§ 143-110. Places vacated for failure to attend meetings.

Unless otherwise specially provided by law, whenever a trustee or director of any institution supported in whole or in part by State appropriation shall fail to be present for two successive years at the regular meetings of the board, his place as trustee or director shall be deemed vacant and shall be filled as provided by law for other vacancies on such boards.

This section shall not apply to any trustee or director who holds office as such by virtue of another public office held by him and shall not apply to any trustee or director chosen by any agency or authority other than the State of North Carolina.

History

(1927, c. 225.)

§ 143-111. Director not to be elected to position under board.

It shall be unlawful for any board of directors, board of trustees or other governing body of any of the various State institutions (penal, charitable, or otherwise) to appoint or elect any person who may be or has been at any time within six months a member of such board of directors, board of trustees, or other governing body, to any position in the institution, which position may be under the control of such board of directors, board of trustees, or other governing body.

History

(1909, c. 831; C.S., s. 7519.)

§ 143-112. Superintendents to be within call of board meetings.

The superintendent of each of the various State institutions shall be present on the premises of his institution and within the call of the board of directors during all regular or special meetings of the board, and shall respond to all calls of the board for any information which it may wish at his hands.

History

(1907, c. 883, s. 1; C.S., s. 7520.)

§ 143-113. Trading by interested officials forbidden.

The directors, stewards, and superintendents of the State institutions shall not trade directly or indirectly with or among themselves, or with any concern in which they are interested, for any supplies needed by any such institutions.

History

(1907, c. 883, s. 2; C.S., s. 7521.)

§ 143-114. Diversion of appropriations to State institutions.

It shall be unlawful for the board of trustees, board of directors, or other body controlling any State institution, to divert, use, or expend any moneys appropriated for the use of said institutions for its permanent improvement and enlargement to the payment of any of the current expenses of said institution or for the payment of the cost of the maintenance thereof; it shall likewise be unlawful for any board of trustees, board of directors, or other controlling body of any State institution to which money is appropriated for its maintenance by the State to divert, use or expend any money so appropriated for maintenance, for the permanent enlargement or permanent equipment, or the purchase of land for said institution.

History

(1921, c. 232, s. 1; C.S., s. 7521 (a).)

§ 143-115. Trustee, director, officer or employee violating law guilty of misdemeanor.

Any member or members of any board of trustees, board of directors, or other controlling body governing any of the institutions of the State, or any officer, employee of, or person holding any position with any of the institutions of the State, violating any of the provisions of G.S. 143-114, shall be guilty of a Class 1 misdemeanor, and upon conviction in any court of competent jurisdiction judgment shall be rendered by such court removing such member, officer, employee, or person holding any position from his place, office or position.

History

(1921, c. 232, s. 2; C.S., s. 7521 (b); 1993, c. 539, s. 1005; 1994, Ex. Sess., c. 24, s. 14(c).)

§ 143-116. Venue for trial of offenses.

All offenses against G.S. 143-114 and 143-115 shall be held to have been committed in the County of Wake and shall be tried and disposed of by the courts of said county having jurisdiction thereof.

History

(1921, c. 232, s. 3; C.S., s. 7521 (c).)

§§ 143-116.1 through 143-116.5: Reserved for future codification purposes.

§ 143-116.6. Rules concerning conduct; violation.

1. The Secretary of Health and Human Services may adopt rules for State-owned institutions under the jurisdiction of the Department of Health and Human Services for the regulation and deportment of persons in the buildings and grounds of the institutions, and for the suppression of nuisances and disorder. Rules adopted under this section shall be consistent with G.S. 14-132. Copies of the rules shall be posted at the entrance to the grounds and at different places on the grounds.
2. Any person violating such rules shall, upon conviction, be guilty of a Class 2 misdemeanor.

History

(1981, c. 614, s. 5; 1987, c. 827, s. 255; 1993, c. 539, s. 1006; 1994, Ex. Sess., c. 24, s. 14(c); 1997-443, s. 11A.118(a).)

§ 143-116.7. Motor vehicle laws applicable to streets, alleys and driveways on the grounds of Department of Health and Human Services institutions; traffic regulations; registration and regulation of motor vehicles.

1. Except as otherwise provided in this section, all the provisions of Chapter 20 of the General Statutes relating to the use of the highways of the State and the operation of motor vehicles thereon are made applicable to the streets, alleys, roads and driveways on the grounds of all State institutions under the jurisdiction of the Department of Health and Human Services. Any person violating any of the provisions of the Chapter in or on such streets, alleys, roads or driveways shall, upon conviction be punished as prescribed in this section. Nothing herein contained shall be construed as in any way interfering with the ownership and control of the streets, alleys, roads and driveways on the grounds of the State institutions operated by the Department of Health and Human Services.
2. The Secretary of Health and Human Services may adopt rules consistent with the provisions of Chapter 20 of the General Statutes, with respect to the use of the streets, alleys, and driveways of institutions of the Department of Health and Human Services. Based upon a traffic and engineering investigation, the Secretary of Health and Human Services may also determine and establish speed limits on streets lower than those provided in G.S. 20-141.
3. The Secretary may, by rule, regulate parking and establish parking areas on the grounds of institutions of the Department of Health and Human Services.
4. The Secretary may, by rule, provide for the registration and parking of motor vehicles maintained and operated by employees of the institution, and may fix fees, not to exceed ten dollars ($10.00) per year, for such registration.
5. Rules adopted under this section may provide that violation subjects the offender to a civil penalty, not to exceed fifty dollars ($50.00). Penalties may be graduated according to the seriousness of the offense or the number of prior offenses by the person charged but shall not exceed fifty dollars ($50.00). The Secretary may establish procedures for the collection of penalties, and they may be enforced by civil action in the nature of debt.
6. A rule adopted under this section may provide for the removal of illegally parked motor vehicles. Any such removal must be in compliance with Article 7A of Chapter 20 of the General Statutes.
7. Any violation under this section or of a provision of Chapter 20 of the General Statutes made applicable to the grounds of State institutions solely by operation of this section shall be considered an infraction and shall be subject to an infraction penalty not to exceed fifty dollars ($50.00). A rule adopted under this section may provide that a violation shall not be an infraction, but shall be enforced by other methods available, including the methods authorized by subsection (e).
8. Any fees or civil penalties collected pursuant to this section shall be deposited in the General Fund Budget Code of the institution where the fees or civil penalties are collected and shall only be used to support the cost of administration of this section. Infraction penalties shall be disbursed as provided in G.S. 14-3.1(a).

History

(1981, c. 614, s. 5; 1985, c. 672; c. 764, s. 39; 1985 (Reg. Sess., 1986), c. 852, ss. 13, 14; 1987, c. 827, s. 256; 1997-443, s. 11A.118(a).)

§ 143-116.8. Motor vehicle laws applicable to State parks and forests road system.

1. Except as otherwise provided in this section, all the provisions of Chapter 20 of the General Statutes relating to the use of highways and public vehicular areas of the State and the operation of vehicles thereon are made applicable to the State parks and forests road system. For the purposes of this section, the term "State parks and forests road system" shall mean the streets, alleys, roads, public vehicular areas and driveways of the State parks, State forests, State recreation areas, State lakes, and all other lands administered by the Department of Natural and Cultural Resources or the Department of Agriculture and Consumer Services. This term shall not be construed, however, to include streets that are a part of the State highway system. Any person violating any of the provisions of Chapter 20 of the General Statutes hereby made applicable in the State parks and forests road system shall, upon conviction, be punished in accordance with Chapter 20 of the General Statutes. Nothing herein contained shall be construed as in any way interfering with the ownership and control of the State parks road system by the Department of Natural and Cultural Resources and the forests road system by the Department of Agriculture and Consumer Services.
2. 1. It shall be unlawful for a person to operate a vehicle in the State parks road system at a speed in excess of twenty-five miles per hour (25 mph). When the Secretary of Natural and Cultural Resources determines that this speed is greater than reasonable and safe under the conditions found to exist in the State parks road system, the Secretary may establish a lower reasonable and safe speed limit. No speed limit established by the Secretary pursuant to this provision shall be effective until posted in the part of the system where the limit is intended to apply. (b) (1)  It shall be unlawful for a person to operate a vehicle in the State parks road system at a speed in excess of twenty-five miles per hour (25 mph). When the Secretary of Natural and Cultural Resources determines that this speed is greater than reasonable and safe under the conditions found to exist in the State parks road system, the Secretary may establish a lower reasonable and safe speed limit. No speed limit established by the Secretary pursuant to this provision shall be effective until posted in the part of the system where the limit is intended to apply.
   2. It shall be unlawful for a person to operate a vehicle in the State forests road system at a speed in excess of 25 miles per hour. When the Commissioner of Agriculture determines that this speed is greater than reasonable and safe under the conditions found to exist in the State forests road system, the Commissioner may establish a lower reasonable and safe speed limit. No speed limit established by the Commissioner pursuant to this provision shall be effective until posted in the part of the system where the limit is intended to apply.
   3. Any person convicted of violating this subsection by operating a vehicle on the State parks and forests road system while fleeing or attempting to elude arrest or apprehension by a law enforcement officer with authority to enforce the motor vehicle laws, shall be punished as provided in G.S. 20-141.5.
   4. For the purposes of enforcement and administration of Chapter 20, the speed limits stated and authorized to be adopted by this section are speed limits under Chapter 20.
   5. The Secretary may designate any part of the State parks road system and the Commissioner may designate any part of the State forests road system for one-way traffic and shall erect appropriate signs giving notice thereof. It shall be a violation of G.S. 20-165.1 for any person to willfully drive or operate any vehicle on any part of the State parks and forests road system so designated except in the direction indicated.
   6. The Secretary shall have power, equal to the power of local authorities under G.S. 20-158 and G.S. 20-158.1, to place vehicle control signs and signals and yield-right-of-way signs in the State parks road system; the Secretary also shall have power to post such other signs and markers and mark the roads in accordance with Chapter 20 of the General Statutes as the Secretary may determine appropriate for highway safety and traffic control. The failure of any vehicle driver to obey any vehicle control sign or signal, or any yield-right-of-way sign placed under the authority of this section in the State parks road system shall be an infraction and shall be punished as provided in G.S. 20-176.
   7. The Commissioner shall have power, equal to the power of local authorities under G.S. 20-158 and G.S. 20-158.1, to place vehicle control signs and signals and yield right-of-way signs in the State forests road system. The Commissioner also shall have power to post such other signs and markers and mark the roads in accordance with Chapter 20 of the General Statutes as the Commissioner may determine appropriate for highway safety and traffic control. The failure of any vehicle driver to obey any vehicle control sign or signal or any yield right-of-way sign placed under the authority of this section in the State forests road system shall be an infraction and shall be punished as provided in G.S. 20-176.
3. The Secretary of Natural and Cultural Resources may, by rule, regulate parking and establish parking areas, and provide for the removal of illegally parked motor vehicles on the State parks road system, and the Commissioner of Agriculture may, by rule, regulate and establish parking areas and provide for the removal of illegally parked motor vehicles on the State forests road system. Any rule of the Secretary or the Commissioner shall be consistent with the provisions of G.S. 20-161, 20-161.1, and 20-162. Any removal of illegally parked motor vehicles shall be in compliance with Article 7A of Chapter 20 of the General Statutes.
4. A violation of the rules issued by the Secretary of Natural and Cultural Resources or the Commissioner of Agriculture under subsection (c) of this section is an infraction pursuant to G.S. 20-162.1, and shall be punished as therein provided. These rules may be enforced by the Commissioner of Motor Vehicles, the Highway Patrol, forest law enforcement officers, or other law enforcement officers of the State, counties, cities or other municipalities having authority under Chapter 20 of the General Statutes to enforce laws or rules on travel or use or operation of vehicles or the use or protection of the highways of the State.
5. The provisions of Chapter 20 of the General Statutes are applicable at all times to the State parks and forests road system, including closing hours, regardless of the fact that during closing hours the State parks and forests road system is not open to the public as a matter of right.
6. Notwithstanding any other provision of this section, a person may petition the Department of Natural and Cultural Resources for a waiver authorizing the person to operate a vehicle in the State parks road system at a speed in excess of 25 miles per hour in connection with a special event. The Secretary may impose any conditions on a waiver that the Secretary determines to be necessary to protect public health, safety, welfare, and the natural resources of the State park. These conditions shall include a requirement that the person receiving the waiver execute an indemnification agreement with the Department and obtain general liability insurance in an amount not to exceed three million dollars ($3,000,000) covering personal injury and property damage that may result from driving in excess of 25 miles per hour in the State parks road system subject to the conditions determined by the Secretary.
7. Notwithstanding any other provision of this section, a person may petition the Department of Agriculture and Consumer Services for a waiver authorizing the person to operate a vehicle in the State forests road system at a speed in excess of 25 miles per hour in connection with a special event. The Commissioner may impose any conditions on a waiver that the Commissioner determines to be necessary to protect public health, safety, welfare, and the natural resources of the State forest. These conditions shall include a requirement that the person receiving the waiver execute an indemnification agreement with the Department and obtain general liability insurance in an amount not to exceed three million dollars ($3,000,000) covering personal injury and property damage that may result from driving in excess of 25 miles per hour in the State forests road system subject to the conditions determined by the Commissioner.

History

(1987, c. 474, s. 1; 1989, c. 727, s. 218(96); 1997-443, ss. 11A.119(a), 19.26(e); 2013-155, s. 19; 2014-120, s. 31(a); 2015-241, s. 14.30(xx).)

Editor's Note. - Session Laws 2014-120, s. 31(b), provides: "The Department of Environment and Natural Resources and the Department of Agriculture and Consumer Services shall amend their rules to be consistent with Section 31(a) of this act."

Session Laws 2014-120, s. 60, is a severability clause.

Effect of Amendments. - Session Laws 2013-155, s. 19, effective July 1, 2013, deleted "and forests" preceding "road system" throughout the section; added "of the General Statutes" following "Chapter 20" throughout the section; added subdivisions (b)(1a) and (b)(5a); added "or the Department of Agriculture and Consumer Services" following "Natural Resources" or similar language twice in subsection (a); substituted "where the limit is intended to apply" for "sought to be affected" in subdivision (b)(1); in subdivision (b)(4), added "road system" and "the Commissioner may designate any part of the State"; in subsection (c), added "and the Commissioner of Agriculture may, by rule, regulate and establish parking areas and provide for the removal of illegally parked motor vehicles on the State forests road system" and "or the Commissioner"; and, in subsection (d), added "or the Commissioner of Agriculture" and "forest law enforcement officers."

Session Laws 2014-120, s. 31(a), effective September 18, 2014, added subsections (f) and (g).

Session Laws 2015-241, s. 14.30(xx), effective July 1, 2015, substituted "Department of Natural and Cultural Resources" for "Department of Environment and Natural Resources" throughout the section.

§ 143-117. Institutions included.

All persons admitted to the following institutions operated by the Department of Health and Human Services are required to pay the actual cost of their care, treatment, training, and maintenance at these institutions: regional psychiatric hospitals, special care centers, regional developmental centers, schools for children with serious emotional disturbances, and alcohol and drug abuse treatment centers.

History

(1925, c. 120, s. 1; 1949, c. 1070; 1957, c. 1232, s. 29; 1959, c. 1028, ss. 1-7; 1967, c. 188, s. 1; c. 834, s. 1; 1969, c. 20; c. 837, s. 4; 1971, c. 469; 1981, c. 562, s. 6; 1985, c. 508, s. 2; 1987, c. 856, s. 14; 1989, c. 145, s. 2; 1997-443, ss. 11A.92, 11A.118(a); 2019-76, s. 26.)

Editor's Note. - Session Laws 1987, c. 856, s. 20 provided that ss. 1 through 19 would be effective only upon agreement by Duke University to the terms of ss. 21 through 26 of the act and certification of that fact by the Secretary of the Department of Human Resources to the Governor, and ss. 12 to 17 would be effective on the date of the transfer. Section 20 further provided that any disputes arising out of the transfer would be resolved by the Director of Budget.

Sections 21 through 26 of the act provided terms for the transfer of the Lenox Baker Hospital to Duke University.

The letter of certification from the Secretary of the Department of Human Resources was dated October 5, 1988, but it appears that this was a typographical error and that October 5, 1987, was the correct date.

Session Laws 2019-76, s. 33, provides: "Parts I and II of this act do not affect the coverage, eligibility, rights, responsibilities, or provision of State or federal services or benefits for individuals who have been diagnosed with mental retardation and whose diagnosis has not been changed to a diagnosis of intellectual disability."

Session Laws 2019-76, s. 34, made the amendments by Session Laws 2019-76, s. 26, effective October 1, 2019, and applicable to proceedings commenced or services rendered on or after that date.

Effect of Amendments. - Session Laws 2019-76, s. 26, substituted "regional developmental centers, schools for children with serious emotional disturbances" for "regional mental retardation centers, schools for emotionally disturbed children" and made stylistic changes. For effective date and applicability, see editor's note.

Legal Periodicals. - For survey of 1977 constitutional law, see 56 N.C.L. Rev. 943 (1978).

§ 143-117.1. Definitions.

The following definitions apply in this Article:

1. Care. - Care, treatment, training, maintenance, habilitation, and rehabilitation of a person admitted to institutions covered by this Article.
2. Department. - The Department of Health and Human Services.
3. Persons admitted. - Clients of regional psychiatric hospitals, State special care centers, regional developmental centers, schools for children with serious emotional disturbances, and alcohol and drug abuse treatment centers, including clients who may be treated on an outpatient basis.
4. Secretary. - The Secretary of Health and Human Services.

History

(1985, c. 508, s. 3; 1987, c. 856, s. 15; 1989, c. 145, s. 3; c. 770, s. 41; 1997-443, s. 11A.118(a); 2019-76, s. 27.)

Editor's Note. - Session Laws 1987, c. 856, s. 20 provided that ss. 1 through 19 would be effective only upon agreement by Duke University to the terms of ss. 21 through 26 of the act and certification of that fact by the Secretary of the Department of Human Resources to the Governor, and ss. 12 to 17 would be effective on the date of the transfer. Section 20 further provided that any disputes arising out of the transfer would be resolved by the Director of Budget.

Sections 21 through 26 of the act provided terms for the transfer of the Lenox Baker Hospital to Duke University.

The letter of certification from the Secretary of the Department of Human Resources was dated October 5, 1988, but it appears that this was a typographical error and that October 5, 1987, was the correct date.

Session Laws 2019-76, s. 33, provides: "Parts I and II of this act do not affect the coverage, eligibility, rights, responsibilities, or provision of State or federal services or benefits for individuals who have been diagnosed with mental retardation and whose diagnosis has not been changed to a diagnosis of intellectual disability."

Session Laws 2019-76, s. 34, made the amendments by Session Laws 2019-76, s. 27 effective October 1, 2019, and applicable to proceedings commenced or services rendered on or after that date.

Effect of Amendments. - Session Laws 2019-76, s. 27, rewrote the introductory language, which formerly read: "As used in this Article, the following terms have the meaning specifies unless the content clearly implies otherwise"; substituted "regional development centers" for "regional mental retardation centers" and "children with serious emotional disturbances" for "emotionally disturbed children" in subdivision (3); and made stylistic changes. For effective date and applicability, see editor's note.

§ 143-118. Secretary of Health and Human Services to fix cost and charges.

1. The Secretary shall determine and fix the actual cost of care to be paid by and for each person admitted to an institution. The Secretary is given full and final authority to fix a general rate of charge based on said actual cost of providing care, to be paid by persons admitted able to pay the rate or charge, or, in cases where indigent persons admitted are later found to be nonindigent, then cost for their care shall be paid in one or more payments based on the rate of charge in effect for the period or periods of time during which the persons admitted were receiving care in the institutions.
2. ,  (c) Repealed by Session Laws 1985, c. 508, s. 5, effective October 1, 1985.
3. The Secretary shall ascertain which of the persons admitted or persons legally responsible for them are financially able to pay the cost fixed.
4. The Secretary is empowered to enter into contracts of compromise of accounts owing to the institution for past, present or future care at the institutions, including but not limited to the authority to enter into a contract to charge nothing, which contract shall be binding on the respective institution under the terms and for the period specified in the contract. The rates set by the compromise shall be determined in the discretion of the Secretary by the ability to pay of the person admitted or the person legally responsible for his support. This subsection shall not be construed as mandatory and if a contract is not entered into or terminates or if the obligor defaults in the payment of a compromise account or any installment, then the full actual cost of care shall be assessed against the person admitted.
5. For any client admitted under Part 2 of Article 5 of G.S. 122C to a State facility for the mentally ill designated for research purposes in accordance with G.S. 122C-210.2, the Secretary may reduce the rates set by compromise in G.S. 143-118(e) by not more than one-half the amount of that rate.

History

(1925, c. 120, s. 2; 1935, c. 186, s. 1; 1981, c. 562, s. 6; 1985, c. 508, ss. 4-6; 1987, c. 358, s. 2; 1997-443, s. 11A.118(a).)

§ 143-119. Payments.

1. The cost of care when fixed by the Secretary shall be paid by the person admitted or by the person legally responsible for payment. The payment of the cost of care constitutes a valid expenditure of funds held by a fiduciary of a person admitted, including Clerks of Court, and a receipt for payment of such costs shall be a valid voucher in the fiduciary's settlement of his accounts of his trust.
2. Immediately upon the determination of the cost, the person admitted or the person legally responsible for paying the cost shall be notified of the amount due and a statement shall be rendered on a monthly basis.
3. If the person admitted or the person legally responsible for paying the cost is not able to pay the total cost due on a monthly basis, the Secretary may arrange for the payment of a portion of the cost monthly and extend the payments until the costs are paid or may arrange for any other method of payment.
4. The institutions shall maintain a list of all unpaid accounts for audit by the State auditors.
5. The Secretary may discharge from the institution persons admitted who have been found able to pay but who refuse to pay costs fixed against them, unless the person was committed by an order of a court of competent jurisdiction.

History

(1925, c. 120, s. 3; 1935, c. 186, s. 2; 1983, c. 23, s. 2; c. 806; 1985, c. 508, s. 7.)

§ 143-121. Action to recover costs.

1. Immediately upon the fixing of the amount of actual cost, a cause of action shall accrue for the costs in favor of the State for the use of the institution in which the person admitted received care against the person admitted or person legally responsible for paying the costs.
2. The State for the use of the institution may sue upon the cause of action in the courts of Wake County, in the courts of the county in which the institution is located, or in the courts of the county where the defendant resides.
3. In any action to recover the cost of care, a verified and itemized statement of the account signed by the reimbursement director of the institution showing the period of time during which the person admitted was receiving care in the institution, the daily or monthly rate of charge fixed by the Secretary, the total amount due on the account, and the proper credits for any payments which may have been made on the account, shall be filed with the complaint and shall constitute a prima facie case. The State shall be entitled to a judgment in the case in the absence of allegation and proof on the part of the person admitted or person legally responsible for paying the costs that the verified and itemized statement is not correct because of:
   1. An error in the calculation of the amount due predicated upon the rate of charge fixed by the Secretary;
   2. An error as to the period of time during which the person admitted received care in the institution; or
   3. An error in not properly crediting the account with any payment which may have been made.
4. The provisions of this Article directing the Secretary to determine which of the persons admitted are nonindigent and able to pay for their care, notify the person admitted or person legally responsible for the cost of his care of the amount due, to render a statement of the amount due monthly, to discharge persons admitted found able to pay but who refuse to pay and all of the other provisions relating to the manner in which the Secretary shall assess and collect costs are directory and not mandatory. The failure of the Secretary to perform any of these provisions shall not affect the right of the State to recover in any action brought for the cost of care against the person admitted, a person legally responsible for the cost of his care, or his estate if he has died.

History

(1925, c. 120, s. 5; 1985, c. 508, s. 9.)

§ 143-121.1. Ratification of past acts.

The past acts of the Secretary, boards of directors of the institutions and the North Carolina Hospital Board of Control in fixing the rate to be paid by persons admitted are hereby in every respect ratified and validated, and on all claims and causes of action now pending or which hereafter may be made or begun for the payment of the past indebtedness for care, the rates fixed by the party authorized the fix rates at the time the care was provided shall prevail and collections shall be made in accordance with those rates unless the Secretary enters into a contract compromising the account.

History

(1985, c. 508, s. 10.)

§ 143-122. No limitation of action.

No statute of limitation shall apply to or constitute a defense to any cause of action asserted by the State under this Article and all statutes containing limitations which might apply to these actions are hereby repealed as to all such causes of action for costs previously incurred and now remaining unpaid.

History

(1925, c. 120, s. 6; 1985, c. 508, s. 11.)

§ 143-123. Power to admit indigent persons.

1. This Article shall not be construed to limit the authority of the institutions to provide care to all indigent persons who are otherwise entitled to admission in any of the institutions.
2. If at any time any person admitted and determined to be indigent shall succeed to or inherit, or acquire, in any manner, property or otherwise be reputed to be solvent, then the State shall have the full right and authority to collect and sue for the entire cost of care without hinderance of any statute of limitations.

History

(1925, c. 120, s. 7; 1985, c. 508, s. 11.)

§ 143-124. Suit by Attorney General; venue.

At the request of the institution, all actions and suits shall be prosecuted by the Attorney General. The institution shall have the right to select the venue of the action.

History

(1925, c. 120, s. 8; 1985, c. 508, s. 11.)

§ 143-125. Judgment; never barred.

Any judgment obtained by the State under this Article shall never be barred by any statute of limitation but shall to the extent unpaid continue in force; and, at the request of the Attorney General or the director of the institution, the clerk shall issue an execution.

History

(1925, c. 120, s. 9; 1985, c. 508, s. 11.)

§ 143-126. Death of a person admitted; lien on estate.

1. In the event of the death of person admitted, leaving any cost of care unpaid, then the unpaid cost shall constitute a lien on all property, both real and personal of the decedent and shall be payable from the decedent's estate as a fourth class claim after the payment of taxes to the State or its subdivisions.
2. Upon the death of person admitted, the Department shall file a verified statement of account containing the following:
   1. The name of the person admitted;
   2. The date of death of the person admitted;
   3. The inclusive dates of the provision of care;
   4. The name of the institution providing care; and
   5. The amount of the unpaid balance.
3. From the time of docketing, the statement shall be and constitute due notice of a lien against all real property then owned in whole or in part by the decedent and lying in such county to the extent of the total amount of the unpaid balance for the decedent's care as evidenced by the verified statement of account. Payments made by a fiduciary including those made by a clerk of superior court, in full or partial satisfaction of such lien, shall constitute a valid expenditure as provided in G.S. 143-119.
4. No action to enforce such lien may be brought more than three years from the date of death of the person admitted. The failure to bring such action or the failure of the Department to file such statement shall not be a complete bar against recovery but shall only extinguish the lien and priority established by it.
5. Upon receipt of the unpaid balance by the institution or Department or upon agreement of compromise of such unpaid balance, the Department shall notify the clerks of superior court in the counties where the lien has been recorded that the unpaid balance has been paid, and the clerks shall cancel the lien of record.

The statement shall be filed in the office of the clerk of superior court in the county of residence of the deceased person admitted and in the county or counties in which real property is located in which the decedent owns an interest. The statement shall be docketed and indexed by the clerk.

History

(1925, c. 120, s. 10; 1967, c. 960; 1973, c. 476, s. 133; 1985, c. 508, s. 11.)

Opinions of Attorney General

The lien created by this section does not have priority over costs of administration, but falls within the fourth class of former G.S. 28-105. See opinion of Attorney General to Mr. Frankie Williams, Clerk of the Superior Court, Rockingham County, 43 N.C.A.G. 304 (1974).

As to priority of widow's and child's allowances, see opinion of Attorney General to Elmanda S. Yates, Assistant Clerk, Superior Court, Davidson County, 42 N.C.A.G. 263 (1973).

As to limits on priority of funeral expenses, see opinion of Attorney General to Elmanda S. Yates, Assistant Clerk, Superior Court, Davidson County, 42 N.C.A.G. 262 (1973).

§ 143-126.1. Lien on property for unpaid balance due institution.

1. There is hereby created a general lien on both the real and personal property of any person admitted who is receiving or who has received care in any of the institutions operated by the Department of Health and Human Services to the extent of the total amount of the unpaid balance shown on the verified statement of account for charges from and after July 1, 1967.
2. Such general lien for the unpaid balance for care at the institutions shall apply to the property, both real and personal, of the person admitted whether held by him or his trustee or guardian.
3. At the time deemed suitable in the discretion of the Department, there may be filed a verified statement of account containing the following:
   1. The name of the person admitted;
   2. The inclusive dates of the provision of care and a statement that care is continuing if applicable;
   3. The name of the institution providing care; and
   4. The amount of the unpaid balance.
4. From the time of docketing, the statement shall be and constitute due notice of a lien against the real property then owned or thereafter acquired by the patient and lying in such county to the extent of the total amount of the unpaid balance for the person admitted's care as evidenced by the verified statement of account for charges from and after July 1, 1967. Payments made by a fiduciary, including those made by a clerk of superior court, in full or partial satisfaction of such lien, shall constitute a valid expenditure as provided in G.S. 143-119.
5. The lien thus established shall take priority over all other liens subsequently acquired and shall continue from the date of filing until satisfied. No action to enforce such lien may be brought more than three years from the last date of filing of such lien nor more than three years after the death of any person admitted. The failure to bring such action or the failure of the Department to file said statement shall not be a complete bar against recovery but shall only extinguish the lien and priority established by it.
6. Upon receipt of the full unpaid balance by the institution or Department or upon agreement of compromise of such unpaid balance, the Department shall notify the clerks of superior court in the counties where the lien has been docketed that the unpaid balance has been paid, and the clerks shall cancel the lien of record.
7. Notwithstanding the foregoing provisions, no such lien shall be enforceable against any funds paid by the State to a person admitted after judgment or settlement of a claim for damages arising out of the negligent injury of such person at any of the institutions during the life of person admitted. Upon the death of the person admitted, any remaining proceeds of a judgment or settlement under this subsection in the hands of the deceased shall become a general asset of the estate and subject to any lien of the State.

The statement may be filed in the office of the clerk of superior court in the county of residence of the person admitted and in each county or counties where real property in which the patient owns an interest is found. The statement shall be docketed and indexed by the clerk.

History

(1967, c. 959; 1973, c. 476, s. 133; 1979, c. 978, s. 1; 1985, c. 508, s. 11; 1997-443, s. 11A.118(a).)

Opinions of Attorney General

Eligibility for Assistance Payments. - As to determination of whether a patient in a State hospital who has real or personal property on which there is a lien in favor of the State by virtue of this section has a reserve of assets too great for him to receive assistance to the aged welfare payments, see opinion of Attorney General to Mr. Emmett L. Sellers, Director, Division of Medical Services, State Department of Social Services, 40 N.C.A.G. 689 (1969).

As to the eligibility of a State hospital patient to receive medical assistance to the aged payments where he voluntarily disposes of his real property and applies the proceeds in payment of the debt which is the subject of a lien in favor of the State under this section, see opinion of Attorney General to Mr. Emmett L. Sellers, Director, Division of Medical Services, State Department of Social Services, 40 N.C.A.G. 689 (1969).

§ 143-127. Money paid into State treasury.

All money collected by any institution pursuant to this Article shall be by such institution paid into the State treasury, and shall be by the State Treasurer credited to the account of the institution collecting and turning the same into the treasury, and shall be paid out by warrants drawn as in cases of appropriations made for the maintenance of such institutions and shall be used by such institution as it uses and is authorized by law to use appropriations made for maintenance.

History

(1925, c. 120, s. 11; 1983, c. 913, s. 34.)

§ 143-127.1. Parental liability for payment of cost of care for long-term patients in Department of Health and Human Services facilities.

1. Notwithstanding the foregoing provisions of G.S. 143-117 through 143-127 inclusive, the natural or adoptive parents of persons who are non-Medicaid, long-term patients at facilities owned or operated by the Department of Health and Human Services shall only be liable on the charges made by such facility for treatment, care and maintenance for an amount not to exceed the cost of caring for a normal child at home as determined from standard sources by the Department of Health and Human Services.
2. Parents or adoptive parents of a patient in a facility owned or operated by the Department of Health and Human Services shall not be liable for any charges made by such facility for treatment, care and maintenance of such a patient incurred or accrued subsequent to such patient attaining age 18.
3. For purposes of this section, the term "long-term patient" is defined as a person who has been a patient in a facility owned or operated by the Department of Health and Human Services for a continuous period in excess of 120 days. No absence of a patient from the facility due to a temporary or trial visit shall be counted as interrupting the accrual of the 120 days herein required to attain the status of a long-term patient.
4. Repealed by Session Laws 1993, c. 386, s. 2, effective October 1, 1993.

History

(1971, c. 218, s. 1; 1973, c. 476, s. 133; c. 775; 1975, c. 19, s. 48; 1979, c. 838, ss. 25-27; 1983, c. 12; 1983 (Reg. Sess., 1984), c. 1116, s. 82; 1987, c. 738, s. 68; 1993, c. 386, s. 2; 1997-443, s. 11A.118(a).)

Opinions of Attorney General

Authority to Establish Cost of Keeping Normal Child Prior to 1971. - The Board of Mental Health has authority to establish an amount as the cost of keeping a normal child at home in years prior to 1971. See opinion of Attorney General to Mr. Ben W. Aiken, General Business Manager, N.C. Department of Mental Health, 41 N.C.A.G. 507 (1971).

Refunds Not Required. - Session Laws 1971, Chapter 218 does not require that institutions refund to the parent all payments made after the patient has attained age 21. See opinion of Attorney General to Mr. Ben W. Aiken, General Business Manager, N.C. Department of Mental Health, 41 N.C.A.G. 507 (1971).

The limitation on parental liability does not apply to patients themselves, who are still liable for the full cost of care, training, treatment and maintenance. See opinion of Attorney General to Mr. Ben W. Aiken, General Business Manager, N.C. Department of Mental Health, 41 N.C.A.G. 507 (1971).

§ 143-127.2. Repair or replacement of personal property.

The Secretary of Health and Human Services may adopt rules governing repair or replacement of personal property items excluding private passenger vehicles that belong to employees, volunteers, or clients of State facilities within the Department of Health and Human Services and that are damaged or stolen by clients of the State facilities provided that the item is determined by the Secretary to be:

1. Damaged or stolen on or off facility grounds during the performance of employment or volunteer duty and necessary for the employee or volunteer to have in his possession to perform his assigned duty; or
2. Damaged or stolen on or off the facility grounds while the client is under the supervision of the facility and necessary for the client to have in his possession as part of his treatment environment.

History

(1985, c. 393, s. 1; 1987, c. 264, s. 4; 1989, c. 189, s. 1; 1997-443, s. 11A.118(a).)

§ 143-127.3. Negligence.

Reimbursement for items damaged or stolen shall not be granted in instances in which the employee, volunteer, or client, if competent, is determined to be negligent or otherwise at fault for the damage or loss of the property. Negligence shall be determined by the director of the facility.

History

(1985, c. 393, s. 1; 1987, c. 264, s. 4; 1989, c. 189, s. 1.)

Legal Periodicals. - For comment, "Have Your Cake and Eat it Too: Cognitive Neurology and Negligence Law in North Carolina,” see 41 Campbell L. Rev. 181 (2019).

§ 143-127.4. Other remedies.

The director of the facility shall determine if the person seeking reimbursement has made a good faith effort to recover the loss from all other non-State sources and has failed before reimbursement is granted.

History

(1985, c. 393, s. 1; 1987, c. 264, s. 4; 1989, c. 189, s. 1.)

§ 143-127.5. Limitations.

Reimbursement shall be limited to the amount specified in the rules and shall not exceed a maximum of two hundred dollars ($200.00) per incident. No employee, volunteer, or client shall receive more than five hundred dollars ($500.00) per year in reimbursement. Reimbursement is subject to the availability of funds.

History

(1985, c. 393, s. 1; 1987, c. 264, ss. 1, 4; 1989, c. 189, s. 1.)

§ 143-127.6. Administrative and judicial review.

Chapter 150B of the General Statutes governs administrative and judicial review of a decision under this Article by the director of a facility.

History

(1985, c. 393, s. 1; 1987, c. 264, ss. 2, 4; c. 827, s. 257; 1989, c. 189, s. 1.)

§ 143-128. Requirements for certain building contracts.

1. Preparation of specifications. - Every officer, board, department, commission or commissions charged with responsibility of preparation of specifications or awarding or entering into contracts for the erection, construction, alteration or repair of any buildings for the State, or for any county, municipality, or other public body, shall have prepared separate specifications for each of the following subdivisions or branches of work to be performed:
   1. Heating, ventilating, air conditioning and accessories (separately or combined into one conductive system), refrigeration for cold storage (where the cold storage cooling load is 15 tons or more of refrigeration), and all related work.
   2. Plumbing and gas fittings and accessories, and all related work.
   3. Electrical wiring and installations, and all related work.
   4. General work not included in subdivisions (1), (2), and (3) of this subsection relating to the erection, construction, alteration, or repair of any building.
2. Construction methods. - The State, a county, municipality, or other public body shall award contracts to erect, construct, alter, or repair buildings pursuant to any of the following methods:
   1. Separate-prime bidding.
   2. Single-prime bidding.
   3. Dual bidding pursuant to subsection (d1) of this section.
   4. Construction management at risk contracts pursuant to G.S. 143-128.1.
   5. Alternative contracting methods authorized pursuant to G.S. 143-135.26(9).
   6. Design-build contracts pursuant to G.S. 143-128.1A.
   7. Design-build bridging contracts pursuant to G.S. 143-128.1B.
   8. Public-private partnership construction contracts pursuant to G.S. 143-128.1C.
3. Repealed by Session Laws 2012-142, s. 9.4(g), effective July 1, 2012.
4. 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. 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.
5. Repealed by Session Laws 2001-496, s. 3, effective January 1, 2001.
6. 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.
7. 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 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.
8. Project expediter; scheduling; public body to resolve project disputes. - The State, county, municipality, or other public body may, if specified in the bid documents, provide for assignment of responsibility for expediting the work on a project to a single responsible and reliable person, firm or corporation, which may be a prime contractor. In executing this responsibility, the designated project expediter may recommend to the State, county, municipality, or other public body whether payment to a contractor should be approved. The project expediter, if required by the contract documents, shall be responsible for preparing the project schedule and shall allow all contractors and subcontractors performing any of the branches of work listed in subsection (d) of this section equal input into the preparation of the initial schedule. Whenever separate contracts are awarded and separate contractors engaged for a project pursuant to this section, the public body may provide in the contract documents for resolution of project disputes through alternative dispute resolution processes as provided for in subsection (f1) of this section.
9. Repealed by Session Laws 2001-496, s. 3, effective January 1, 2001.
10. Dispute resolution. - A public entity shall use the dispute resolution process adopted by the State Building Commission pursuant to G.S. 143-135.26(11), or shall adopt another dispute resolution process, which shall include mediation, to be used as an alternative to the dispute resolution process adopted by the State Building Commission. This dispute resolution process will be available to all the parties involved in the public entity's construction project including the public entity, the architect, the construction manager, the contractors, and the first-tier and lower-tier subcontractors and shall be available for any issues arising out of the contract or construction process. The public entity may set a reasonable threshold, not to exceed fifteen thousand dollars ($15,000), concerning the amount in controversy that must be at issue before a party may require other parties to participate in the dispute resolution process. The public entity may require that the costs of the process be divided between the parties to the dispute with at least one-third of the cost to be paid by the public entity, if the public entity is a party to the dispute. The public entity may require in its contracts that a party participate in mediation concerning a dispute as a precondition to initiating litigation concerning the dispute.
11. Exceptions. - This section shall not apply to:
    1. The purchase and erection of prefabricated or relocatable buildings or portions thereof, except that portion of the work which must be performed at the construction site.
    2. The erection, construction, alteration, or repair of a building when the cost thereof is three hundred thousand dollars ($300,000) or less.
    3. The erection, construction, alteration, or repair of a building by The University of North Carolina or its constituent institutions when the cost thereof is five hundred thousand dollars ($500,000) or less.

Specifications for contracts that will be bid under the separate-prime system or dual bidding system shall be drawn as to permit separate and independent bidding upon each of the subdivisions of work enumerated in this subsection. The above enumeration of subdivisions or branches of work shall not be construed to prevent any officer, board, department, commission or commissions from preparing additional separate specifications for any other category 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.

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.

Notwithstanding the other provisions of this subsection, subsection (f1) of this section shall apply to any erection, construction, alteration, or repair of a building by a public entity.

History

(1925, c. 141, s. 2; 1929, c. 339, s. 2; 1931, c. 46; 1943, c. 387; 1945, c. 851; 1949, c. 1137, s. 1; 1963, c. 406, ss. 2-7; 1967, c. 860; 1973, c. 1419; 1977, c. 620; 1987 (Reg. Sess., 1988), c. 1108, ss. 4, 5; 1989, c. 480, s. 1; 1995, c. 358, s. 4; c. 367, ss. 1, 4, 5; c. 509, s. 79; 1998-137, s. 1; 1998-193, s. 1; 2001-496, ss. 3, 13; 2002-159, s. 42; 2007-322, s. 3; 2012-142, s. 9.4(g); 2013-401, s. 3).)

Local Modification. - (As to Article 8) Alleghany: 1989, c. 211, s. 1; (As to Article 8, except G.S. 143-128.2 and G.S. 143-128.3) Burke: 2007-35, s. 1 (expires December 31, 2011); (As to certain economic development projects) Buncombe: 2013-31, s. 1 (expires June 30, 2016) 2013-40, s. 1 (expires June 30, 2016); (As to school building contracts) Cabarrus: 2009-430, s. 2 (expires June 30, 2014); Cherokee: 2007-48, s. 1; Chowan: 1989, c. 397, s. 1; Clay: 2006-94, s. 1; 2016-36, s. 1 (as to renovation and restoration of Clay County's old courthouse building as multipurpose facility, and expires June 30, 2018); Currituck: 1993 (Reg. Sess., 1994), c. 668, s. 1; (as to Article 8) 2009-370, s. 2; (as to Article 8) 2011-98, s. 2 (expires December 31, 2014); Dare: 1989, c. 177, s. 1; 1999-40, s. 1; 2003-47, s. 1 (as to design and construction of administration building and renovation of Old Dare Court House, and expires July 1, 2008); Davidson: 1989, c. 398, s. 1; 2012-63 (expires June 30, 2014); Durham: 1985 (Reg. Sess., 1986), c. 908; 2013-386, s. 5(a); (as to Article 8) Forsyth: 2001-54; Franklin: 1993 (Reg. Sess., 1994), c. 757, s. 1; (as to G.S. 143-128) Greene: 1953, c. 718; (As to water treatment and wastewater treatment plant expansion projects) Harnett: 2007-214, s. 1 (expires December 31, 2010); Iredell: (as to animal shelter project) 2008-67, s. 1 (expires July 1, 2010); Johnston: 1995 (Reg. Sess., 1996), c. 611, s. 1; (as to Art. 8) 1997-37; 2008-40 (as to contracts for renovations to the county courthouse); Mecklenburg: 1993 (Reg. Sess., 1994), c. 573, s. 1; (as to Article 8) 2009-162, s. 1(c); New Hanover: 1983, c. 365; (As to contracts with Water and Sewer Authority) 2007-135, s. 1 (expires December 31, 2009); 2017-86, s. 2(a); (As to Article 8) Onslow: 2013-37, s. 1(e); Pasquotank: 1989, c. 268, s. 3; 1989, c. 468, s. 1; Rockingham: 2012-140, s. 1 (expires June 30, 2017); Stokes: 2006-50, s.1; Surry: 1993 (Reg. Sess., 1994), c. 705, s. 1; Tyrrell: 1983, c. 208; 1985, c. 120; 1987, c. 58, s. 1; 1987, c. 58, s. 2; Union: 1991, c. 393, s. 1; (As to Article 8) 2012-59 (expires June 26, 2017); Wayne: 2011-98, s. 1 (expires December 31, 2014); Wilson: 1991, c. 200; (As to Article 8, except for G.S. 143-128.2, 143-128.3 and 143-129 for installation of electrical, water or sewer lines up to structures in business center) city of Albemarle: 2019-65 (expires December 31, 2028); (as to Article 8) city of Charlotte: 2000-26, s. 1; 2000-26, s. 8.87 as added by 2011-180, s. 3 (expires June 30, 2016); (as to Article 8) 2001-248, ss. 1, 2; (as to Article 8) 2001-329, s. 4, as amended by 2007-255, s. 1; and as amended by 2009-162, s. 2(b); (as to G.S. 143-128, and as to water and wastewater treatment plants) 2007-312, s. 1, city of Clinton: 2013-115, ss. 1, 2 (as to use of design-build method of construction for certain projects awarded before June 30, 2015 involving city-owned facilities); city of Concord: 2008-7, s. 1 (as to G.S. 143-128, and as to speedway area infrastructure projects - expires December 31, 2013); 2014-31, s. 4 (expires June 30, 2021); (as to Article 8) city of Durham: 1985, c. 714; 1985, c. 727; 1987, c. 789; 2001-350, s. 3; 2013-386, s. 4 (as to Article 8); (As to Article 8) 1991, c. 107; city of Greensboro: 1995, c. 54, s. 1; (as to Article 8) city of Greenville: 1998-144; 2004-10 (expires January 1, 2010); city of Kannapolis: 2014-31, s. 4 (expires June 30, 2021); city of Lumberton: 1983 (Reg. Sess., 1984), c. 996; (As to Article 8) city of Mount Airy: 2003-281, s. 1; city of Roanoke Rapids: 2001-425, s. 3; 2005-174, s. 2; (as to Article 8, except for G.S. 143-128.2 and 143-128.3) 2005-174, s. 3 (expires January 1, 2009); (As to contracts with Water and Sewer Authority) city of Wilmington: 2007-135, s. 1 (expires December 31, 2009); (as to Article 8) city of Winston-Salem: 2001-54; town of Ahoskie: 1987 (Reg. Sess., 1988), c. 884; town of Blowing Rock: 2006-171, s. 10 (public parking facility); town of Cornelius: 1971, c. 288, s. 1.4, as added by 2011-180, s. 1, and amended by 2011-326, s. 20 (expires July 1, 2018), and as amended by 2013-352, s. 1 (expires July 1, 2016); town of Clayton: 1995, c. 125, s. 1; (as to Article 8) town of Garner: 1993, c. 281, s. 4; town of Louisburg: 2007-216, s. 3, as amended by 2009-370, s. 1 (expires January 1, 2011); town of Manteo: 1985 (Reg. Sess., 1986), c. 808; (as to Article 8) town of Matthews: 2010-52, s. 1(e); town of Mint Hill: 2014-31, s. 4 (expires June 30, 2021); Mooresville: (as to sewer pumping station) 2008-67, s. 2; town of Yadkinville: 1997-3, s. 1; (as to Article 8) village of Bald Head Island: 1989 (Reg. Sess., 1990), c. 925, s. 1; Alamance-Burlington Board of Education: 2017-82, ss. 11(a)-(c); Alamance-Caswell Area Mental Health, Developmental Disabilities and Substance Abuse Authority: 1987, c. 120; Albemarle Hospital Board of Trustees: 1989, c. 468, s. 2; (As to Article 8) Board of Trustees of Beaufort County Community College: 2009-168, s. 1.1; Charlotte/Mecklenburg Board of Education: 1999-207, ss. 3, 4; 2001-496, s. 10(c); Currituck County Board of Education and City of Albemarle: 1989, c. 409, s. 1; 1999-102, s. 1; 2001-496, s. 10(b); Lower Cape Fear Water and Sewer Authority: 2012-60 (expires December 31, 2015); (As to Article 8, except G.S. 143-128.2 and G.S. 143-128.3) Piedmont Community College: 2007-35, s. 1 (expires December 31, 2011); (as to Chapter 143, Articles 3 and 8) Piedmont Triad International Authority: 1998-55, s. 11; 2002-146, s. 8 (expires January 1, 2010); Tyrrell County Board of Education: 1983, c. 580; 1985, c. 120; Union County Public Schools Board of Education: 2007-90, ss. 2 and 3 (expires July 1, 2011); (as to Article 8) University of North Carolina at Chapel Hill and East Carolina University: 1987, c. 803, s. 3; University of North Carolina at Chapel Hill: 1985 (Reg. Sess., 1986), c. 865, s. 3; Winston-Salem/Forsyth County Board of Education: 1993, c. 128, s. 1; 2003-269,
s. 1.

Cross References. - As to legislation regarding construction of juvenile facilities, see the editor's note under G.S. 7B-1500.

As to procurement of architectural, engineering, and surveying services, see G.S. 143-64.31 et seq.

As to application of this Article to lease of personal property with an option to purchase by a county, see G.S. 153A-165.

As to application of this Article to lease of personal property with an option to purchase by a city, see G.S. 160A-19.

Editor's Note. - As to the exemption of the Office of State Budget and Management from the requirements of G.S. 143-135.26(1), 143-128, 143-129, 143-131, 143-132, 143-134, 143-135.26, 143-64.10 through 143-64.13, 113A-1 through 113A-10, 113A-50 through 113A-66, 133-1.1(b), and 133-1.1(g) and rules implementing those statutes for the purpose of construction of prison facilities, see Session Laws 1989, c. 754, s. 28(a).

As to exemption of the Office of State Budget and Management from the requirements of this section in the administration and implementation of the Prison Facilities Legislative Bond Act of 1990, see Session Laws 1989 (Reg. Sess., 1990), c. 933, s. 6(4).

As to the exemption of the Office of State Budget and Management from the requirements of this section in providing prison facilities under the provisions of the State Prison and Youth Services Facilities Bond Act, see Session Laws 1989 (Reg. Sess., 1990), c. 935, s. 6(a)(4).

As to exemption of the Office of Management and Budget from the requirements of this section with respect to facilities authorized for the Department of Correction, see Session Laws 1991, c. 689, s. 239(f), as amended by Session Laws 1991 (Reg. Sess., 1992), c. 1044, s.41(b), quoted under G.S. 143-64.10.

Session Laws 1993, c. 550, s. 6, effective July 1, 1993, provides that if the Secretary of Administration, after consultation with the Secretary of Correction, finds that the delivery of state prison and youth services facilities authorized to be constructed under that act must be expedited for good cause, the Office of State Construction of the Department of Administration may use alternative delivery systems and shall be exempt from several statutes, including this section, and rules implementing those statutes to the extent necessary to expedite delivery. Section 6 also sets out the provisions governing the exercise of the exemptions allowable and other relevant provisions.

As to the exemption of the Office of State Construction of the Department of Administration from the requirements of this section to the extent necessary to expedite delivery of certain prison facilities, see Session Laws 1994, Extra Session, c. 24, s. 67.

Session Laws 1995, c. 507, s. 27.10, provides that if the construction of prison facilities in Avery and Mitchell Counties must be expedited for good cause, as determined by the Secretary of Administration and Secretary of Correction, the Office of State Construction of the Department of Administration shall be exempt from the following statutes and rules to the extent necessary to expedite delivery: G.S. 143-135.26, 143-128, 143-129, 143-131, 143-132, 143-134, 113A-1 through 113A-10, 113A-50 through 113A-66, 133-1.1(g), and 143-408.1 through 143-408.7.

Session Laws 1997-443, s. 32.11, provides that the Department of Transportation may enter into a design-build-warrant contract to develop, with Federal Highway Administration participation, a Congestion Avoidance and Reduction for Autos and Trucks (CARAT) system of traffic management in the Charlotte-Mecklenburg urban areas. Notwithstanding any other provision of law, contractors, their employees, and Department of Transportation employees involved in this project only do not have to be licensed by occupational licensing boards, and for the purpose of entering into contracts, the Department of Transportation is exempted from the provisions of G.S. 136-28.1, 143-52, 143-53, 143-58, 143-128, and 143-129; these exemptions are limited and available only to the extent necessary to comply with federal rules, regulations, and policies for completion of this project. The Department shall report quarterly to the Joint Legislative Transportation Oversight Committee on the project. Session Laws from 1993 and 1995 contained similar provisions.

Session Laws 1997-443, s. 1.1, provides: "This act shall be known as 'The Current Operations and Capital Improvements Appropriations Act of 1997.'"

Session Laws 1997-443, s. 35.2, provides: "Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 1997-99 fiscal biennium, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 1997-99 fiscal biennium."

Session Laws 1998-202, s. 35, provides: "(a) The Office of State Construction of the Department of Administration may contract for and supervise all aspects of administration, technical assistance, design, construction, or demolition of any juvenile facilities authorized for the 1998-99 fiscal year, including renovation of existing adult facilities to juvenile facilities.

"The facilities authorized for the 1998-99 fiscal year shall be constructed in accordance with the provisions of general law applicable to the construction of State facilities. If the Secretary of Administration, after consultation with the Office of Juvenile Justice (now the Department of Juvenile Justice and Delinquency Prevention), finds that the delivery of juvenile facilities must be expedited for good cause, the Office of State Construction of the Department of Administration shall be exempt from the following statutes and rules implementing those statutes, to the extent necessary to expedite delivery: G.S. 143-135.26, 143-128, 143-129, 143-131, 143-132, 143-134, 113A-1 through 113A-10, 113A-50 through 113A-66, 133-1.1(g), and 143-408.1 through 143-408.7.

"Prior to exercising the exemptions allowable under this section, the Secretary of Administration shall give reasonable notice in writing of the Department's intent to exercise the exemptions to the Speaker of the House, the President Pro Tempore of the Senate, the Chairs of the House and Senate Appropriations Committees, the Joint Legislative Commission on Governmental Operations, and the Fiscal Research Division. The written notice shall contain at least the following information: (i) the specific statutory requirement or requirements from which the Department intends to exempt itself; (ii) the reason the exemption is necessary to expedite delivery of juvenile facilities; (iii) the way in which the Department anticipates the exemption will expedite the delivery of facilities; and (iv) a brief summary of the proposed contract for the project which is to be exempted.

"The Office of State Construction of the Department of Administration shall have a verifiable ten percent (10%) goal for participation by minority and women-owned businesses. All contracts for the design, construction, or demolition of juvenile facilities shall include a penalty for failure to complete the work by a specified date.

"The Office of State Construction of the Department of Administration shall consult the Department of Health and Human Services on these projects to the extent that such involvement relates to the Department's program needs and to its responsibility for the care of the population of the facility."

Session Laws 1998-202, s. 36, contains a severability clause.

Session Laws 2003-435, 1st Ex. Sess., s. 1.2(c), effective December 16, 2003, provides: "Site development funded by money appropriated under this section is not subject to Article 8 of Chapter 143 of the General Statutes (public contracts) or Article 3 of Chapter 143 of the General Statutes (purchases and contracts), except where public funds are expended the provisions of G.S. 143-48 and G.S. 143-128.2 shall apply. Actions involving expenditures of public moneys or use of public lands for projects and programs involved in site development funded by money appropriated under this section are exempt from the requirements of Article 1 of Chapter 113A of the General Statutes. This exemption does not apply to an ordinance adopted under G.S. 113A-8."

This section, as amended by Session Laws 2007-322, s. 3, effective July 30, 2007, which added subdivision (g)(3), is applicable to construction projects for which bids or proposals are solicited on or after July 30, 2007.

Session Laws 2007-322, s. 13, provides: "This act is effective when it becomes law [July 30, 2007]. Sections 1 through 4 of this act apply to construction projects for which bids or proposals are solicited on or after that date. Section 5 of this act applies to construction or repair work commenced on or after that date."

Session Laws 2009-451, s. 9.14(b), provides: "With respect to the demonstration wind turbines and necessary support facilities authorized by subsection (a) of this section, the facilities authorized under this act shall be constructed in accordance with the provisions of general law applicable to the construction of State facilities, except that the State Property Office shall expedite and grant all easements and use agreements required for construction of the facilities without payment of any fee, royalty, or other cost. Notwithstanding any other provision of law, construction of the facilities authorized by this section shall be exempt from the following statutes and rules implementing those statutes: G.S. 143-48 through 143-64, 143-128, 143-129, 143-132, 113A-1 through 113A-10, 113A-50 through 113A-66, and 113A-116 through 113A-128. If Senate Bill 1068, 2009 Regular Session, becomes law, the provisions of Part 12 of Article 21 of Chapter 143 of the General Statutes as enacted by that act shall not apply to the facilities authorized by this section. With respect to any other environmental permits required for construction of the facilities, the Department of Environment and Natural Resources is directed to expedite permitting of the project to the extent allowed by law and shall waive any application fees that would be otherwise applicable to applications for permits required for the facilities and, where possible under applicable law, issue all permits within 40 days of receipt of a complete application." Senate Bill 1068, 2009 Regular Session, did not become law.

Session Laws 2009-451, s. 1.2, provides: "This act shall be known as the 'Current Operations and Capital Improvements Appropriations Act of 2009'."

Session Laws 2009-451, s. 28.3, provides: "Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2009-2011 fiscal biennium, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2009-2011 fiscal biennium."

Session Laws 2009-451, s. 28.5, is a severability clause.

Session Laws 2010-31, s. 9.10(a) and (b), provides: "(a) The General Assembly finds that strengthening research and development efforts on renewable energy sources is critical to North Carolina's environment and economy, and that recent events resulting from the British Petroleum oil spill amplify the need for North Carolina's innovators and scientists to enhance their efforts to develop sustainable energy sources and technologies that do not threaten the health and well-being of the State's waters, sensitive lands, and residents. In order to provide opportunities for research into tidal, wave, and other ocean-based sources of alternative energy, the University of North Carolina Coastal Studies Institute shall form a consortium with the Colleges of Engineering at North Carolina State University, North Carolina Agricultural and Technical State University, and the University of North Carolina at Charlotte to study the capture of energy from ocean waves. The Coastal Studies Institute shall be designated the lead agency in coordinating these efforts. Funding appropriated by this act shall be used by university scientists to conceptualize, design, construct, operate, and market new and innovative technologies designed to harness and maximize the energy of the ocean in order to provide substantial power generation for the State. Funding may be used to leverage federal or private research funding for this purpose, but may not be used to purchase and utilize technology that has already been developed by others unless that technology is a critical component to North Carolina's research efforts. Wave energy technologies developed and used for this research may be attached to or staged from an existing State-owned structure located in the ocean waters of the State, and data generated by these technologies shall be available at this structure for public education and awareness. It is the intent of the General Assembly that North Carolina become the focal point for marine-based ocean research collaborations involving the nation's public and private universities.

"(b) With respect to the demonstration wave energy facility and necessary support facilities authorized by subsection (a) of this section, the facilities authorized under this act shall be constructed in accordance with the provisions of general law applicable to the construction of State facilities, except that the State Property Office shall expedite and grant all easements and use agreements required for construction of the facilities without payment of any fee, royalty, or other cost. Notwithstanding any other provision of law, construction of the facilities authorized by this section shall be exempt from the following statutes and rules implementing those statutes: G.S. 143-48 through 143-64, 143-128, 143-129, 143-132, 113A-1 through 113A-10, 113A-50 through 113A-66, and 113A-116 through 113A-128. With respect to any other environmental permits required for construction of the facilities, the Department of Environment and Natural Resources is directed to expedite permitting of the project to the extent allowed by law and shall waive any application fees that would be otherwise applicable to applications for permits required for the facilities and, where possible under applicable law, issue all permits within 40 days of receipt of a complete application."

Session Laws 2010-31, s. 1.1, provides: "This act shall be known as the 'Current Operations and Capital Improvements Appropriations Act of 2010'."

Session Laws 2010-31, s. 32.3, provides: "Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2010-2011 fiscal year, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2010-2011 fiscal year."

Session Laws 2010-31, s. 32.6, is a severability clause.

Session Laws 2001-496, s. 13, was codified as subsection (a2) of this section. It was subsequently repealed by Session Laws 2012-142, s. 9.4(g).

Session Laws 2012-142, s. 1.2, provides: "This act shall be known as 'The Current Operations and Capital Improvements Appropriations Act of 2012.'"

Session Laws 2012-142, s. 27.7, is a severability clause.

Session Laws 2013-352, s. 1, amended the local modification of this section in Session Laws 2011-180, s. 1, by extending the expiration date of that provision from July 1, 2013 until July 1, 2016. However, Session Laws 2013-352, s. 1, did not account for the amendment to Session Laws 2011-180, s. 1, by Session Laws 2011-326, s. 20, which extended the expiration date from July 1, 2013 until July 1, 2018.

Session Laws 2013-401, provides in its preamble: "Whereas, the legislature recognizes that there is a public need for the design, construction, improvement, renovation, and expansion of high-performing public buildings within the State of North Carolina; and

"Whereas, the public need may not be, in limited situations, wholly satisfied by existing procurement methods in which public buildings are designed, constructed, improved, renovated, or expanded; and

"Whereas, many local governmental entities request special legislative authorization to enter into public-private partnerships and use design-build contracting every legislative session; and

"Whereas, in some instances, more efficient delivery of quality design and construction can be realized when a governmental entity is authorized to utilize an integrated approach for the design and construction of a project under one contract with a single point of responsibility; and

"Whereas, the design-build integrated approach to project delivery, based upon qualifications and experience, in some instances, can yield improved collaboration among design professionals, builders, and owners throughout the entire process and deliver a quality and cost-efficient building; and

"Whereas, certain governmental entities within the State lack the financial resources required to undertake capital building construction projects that are necessary to satisfy critical public needs; and

"Whereas, partnerships with private developers may offer an effective financial mechanism for governmental entities to secure public buildings to satisfy critical public needs that cannot otherwise be met; and

"Whereas, the legislature recognizes that the general public must have confidence in governmental entities' processes for construction contracting; and

"Whereas, the legislature realizes that open competition delivers the best value for taxpayers and public owners; and

"Whereas, the legislature seeks to create transparent, fair, and equitable contracting procedures for the use of public funds in government construction contracting; and

"Whereas, the legislation proposed in this act is not intended to affect the existing statutes, regulations, or practices relevant to projects administered by the North Carolina Department of Transportation nor licensing requirements of designers or contractors; Now, therefore,"

Session Laws 2014-42, s. 8(a)-(f), as amended by Session Laws 2016-24, s. 1, provides: "(a) There is established a Blue Ribbon Commission to Study the Building and Infrastructure Needs of the State (Commission).

"(b) The Commission shall be composed of 20 members as follows:

"(1) Seven members appointed by the Speaker of the House of Representatives, as follows:

"a. Three members of the House of Representatives.

"b. One person upon recommendation of the North Carolina League of Municipalities.

"c. One member of the public, licensed as an architect in this State.

"d. One member of the public, licensed as a professional engineer in this State.

"e. One person upon recommendation of the North Carolina Chamber.

"(2) Seven members appointed by the President Pro Tempore of the Senate, as follows:

"a. Three members of the Senate.

"b. One person upon recommendation of the North Carolina County Commissioners Association.

"c. One person upon recommendation of the North Carolina School Boards Association.

"d. One member of the public, licensed as a general contractor in this State.

"e. One member of the public, licensed as an attorney in this State, with experience in infrastructure financing or infrastructure bonds.

"(3) Six members appointed by the Governor, as follows:

"a. The State Treasurer, or the Treasurer's designee.

"b. The Secretary of Administration, or the Secretary's designee.

"c. The President of The University of North Carolina, or the President's designee.

"d. The President of the North Carolina System of Community Colleges, or the President's designee.

"e. A member of the State Water Infrastructure Authority.

"f. The Secretary of the Department of Commerce, or the Secretary's designee.

"(c) The Commission shall study the following matters related to building and infrastructure needs, including new repairs, renovations, expansion, and new construction, in North Carolina:

"(1) The anticipated building construction needs of State agencies, The University of North Carolina, and North Carolina System of Community Colleges until 2025.

"(2) The anticipated water and sewer infrastructure construction needs of counties and cities until 2025.

"(3) The anticipated building needs of the local school boards until 2025.

"(4) The anticipated costs of such building and infrastructure needs.

"(5) A process that would prioritize needs within each infrastructure category and among all categories, with an emphasis on developing criteria that focus on public safety and economic development.

"(6) The feasibility of establishing a building and infrastructure fund, which would be a dedicated source of revenue for capital funding for counties, cities, local school boards, The University of North Carolina, the North Carolina System of Community Colleges, and State agencies.

"(7) Funding options for meeting the anticipated capital needs until 2025.

"(8) Other matters the Commission deems relevant and related.

"(d) The Speaker of the House of Representatives shall designate one Representative as cochair, and the President Pro Tempore of the Senate shall designate one Senator as cochair. The Commission shall meet upon the call of the cochairs. A quorum of the Commission shall be 10 members. Any vacancy on the Commission shall be filled by the appointing authority.

"(e) Members of the Commission shall receive per diem, subsistence, and travel allowances in accordance with G.S. 120-3.1, G.S. 138-5, or G.S. 138-6, as appropriate. The Commission, while in the discharge of its official duties, may exercise all powers provided for under G.S. 120-19 and G.S. 120-19.4. The Commission may meet upon the call of the cochairs. The Commission may meet in the Legislative Building or the Legislative Office Building. With approval of the Legislative Services Commission, the Legislative Services Officer shall assign professional staff to assist the Commission in its work. The House of Representatives' and the Senate's Directors of Legislative Assistants shall assign clerical staff to the Commission, and the expenses relating to the clerical employees shall be borne by the Commission.

"All State departments and agencies and local governments and their subdivisions shall furnish the Commission with any information in their possession or available to them.

"(f) The Commission may make an interim report of its findings and recommendations to the 2015 General Assembly and shall make a final report of its findings and recommendations to the 2017 General Assembly. The Commission shall terminate on December 31, 2016, or upon the filing of its final report, whichever occurs first."

Session Laws 2015-241, s. 14.5(b), provides: "The General Assembly finds that there is a need for timely initiation of projects authorized by this section during the biennium to expedite mitigation of impaired waters of the State. Therefore, any contract, contract extension, lease, purchase, or other agreement entered into under this section shall not be subject to the requirements of Article 3, 3D, or 8 of Chapter 143 of the General Statutes in order to expedite deployment. Session Laws 2015-241, s. 14.5(a), (c), and (d) provided for funding to continue the Jordan Lake Nutrient Mitigation Demonstration Project established in Session Laws 2013-360, s. 14.3A; for an effective date delay for modification of existing or proposed rules related to basinwide nutrient management and mitigation of water quality of impaired water bodes; and for a study [due no later than April 1, 2016] of in situ strategies beyond traditional watershed controls that have the potential to mitigate water quality impairments resulting from water quality variables that impair or have the potential to impair water bodies of the State." However, Session Laws 2015-241, s. 14.5(a) and (c) were repealed by Session Laws 2016-94, s. 14.13(b) and further provided that: "the Department shall terminate the demonstration project authorized by that section. Any funds allocated under subsection (a) of Section 14.5 of S.L. 2015-241 that are unspent and unencumbered on the effective date of this act shall revert to the Clean Water Management Trust Fund." Session Laws 2016-94, s. 14.13(j) provides: "Subsection (b) of this section becomes effective on the earlier of July 1, 2016, or the date of termination of a contract related to in situ water quality remediation strategies that was previously extended pursuant to Section 14.5 of S.L. 2015-241."

Session Laws 2015-241, s. 1.1, provides: "This act shall be known as `The Current Operations and Capital Improvements Appropriations Act of 2015.'"

Session Laws 2015-241, s. 33.4, provides: "Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2015-2017 fiscal biennium, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2015-2017 fiscal biennium."

Session Laws 2015-241, s. 33.6, is a severability clause.

Session Laws 2016-94, s. 1.2, provides: "This act shall be known as the 'Current Operations and Capital Improvements Appropriations Act of 2016.'"

Session Laws 2016-94, s. 39.4, provides: "Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2016-2017 fiscal year, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2016-2017 fiscal year."

Session Laws 2016-94, s. 39.7, is a severability clause.

Session Laws 2017-113, s. 3, provides: "The facility authorized under this act shall be constructed in accordance with the provisions of general law applicable to the construction of State facilities, except as otherwise provided in this section. Notwithstanding any other provision of law, construction of the facilities authorized by this act shall be exempt from the following statutes and rules implementing those statutes: Articles 3 and 8 of Chapter 143, Articles 1 and 4 of Chapter 113A. Notwithstanding G.S. 146-11 and Article 16 of Chapter 146 of the General Statutes, the approval of the Council of State shall not be required for the granting of easements for the facility authorized under this act. With respect to any other environmental permits required for construction of the facility, the Department of Environmental Quality is directed to expedite permitting of the project to the extent allowed by law and shall waive any application fees that would be otherwise applicable to applications for permits required for the facilities and, where possible under applicable law, issue all permits within 40 days of receipt of a complete application."

Session Laws 2018-5, s. 12.1(c), provides: "Notwithstanding Article 8 of Chapter 143 of the General Statutes, G.S. 115C-522, or any other provision of law to the contrary, the funds distributed in subsection (a) of this section [which provided for a portion of the funds appropriated to the Tobacco Trust Fund to be distributed to Southern Guilford High School Future Farmers of America program] shall be used to complete the animal science project, including furnishings and utility connections, and shall not be subject to any bidding or contract requirements."

Session Laws 2019-231, s. 4.20, provides: "The Department of Transportation, Ferry Division, may enter into a contract to lease a passenger ferry vessel for operation between Hatteras and Ocracoke from May 20, 2019, to September 5, 2019, without complying with the provisions of Article 8 of Chapter 143 of the General Statutes, G.S. 136-28.1, or any other provision of law to the contrary. Of the funds appropriated in this act to the Department, any lease entered into pursuant to this section shall not exceed one million dollars ($1,000,000)."

Session Laws 2019-231, s. 5.3, provides: "Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2019-2021 fiscal biennium, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2019-2021 fiscal biennium."

Session Laws 2019-231, s. 5.5, is a severability clause.

Session Laws 2020-57, s. 2.5, provides: "Notwithstanding the provisions of Article 8 of Chapter 143 of the General Statutes, G.S. 136-28.1, and any other provision of law to the contrary, and pending completion of a successful route verification, the Department of Transportation, Ferry Division, shall lease a passenger ferry vessel for operation between Hatteras and Ocracoke. The term of the lease shall end no later than September 10, 2020. Of the funds appropriated to the Department of Transportation Contingency Fund in S.L. 2019-231 for the 2019-2020 fiscal year, the sum of up to one million one hundred forty-six thousand one hundred seventy-nine dollars ($1,146,179) shall be used by the Division to lease and operate the ferry."

Session Laws 2021-4, s. 3(a), (b), provides: "(a) Within federal funds available, the Department of Public Instruction shall contract with Duke University for the ABC Science Collaborative of the School of Medicine at Duke University (ABC Collaborative) to provide data collation, analysis, and interpretation of COVID-19-related metrics of student, teacher, and staff safety for local school administrative units providing in-person instruction under Plan A for middle and high school students. The contract shall allocate five hundred thousand dollars ($500,000) to Duke University for these services. The contract shall require the ABC Collaborative to engage in close monitoring of infection data through assessing within-school transmission rates based on contact tracing and confirmatory testing with partner local school administrative units to evaluate the fidelity and adherence to mitigation strategies which enable in-person instruction, as provided in the StrongSchoolsNC Public Health Toolkit (K-12). The contract shall require the ABC Collaborative to request only de-identified, aggregate data from partnering units. The contract shall require the ABC Collaborative to report on its findings to the Joint Legislative Education Oversight Committee, the Senate Education/Higher Education Committee, the House Education K-12 Committee, the Department of Public Instruction, the State Board of Education, the Department of Health and Human Services, and the Office of the Governor as follows:

"(1) Interim analysis. - An interim analysis of aggregate data for all partnering units shall be submitted no later than the last calendar day of March, April, and May of 2021.

'(2) Final analysis. - A final analysis of both aggregate and individual partnering local school administrative unit data shall be submitted no later than June 30, 2021.

"(b) The Department of Public Instruction shall execute the contract with Duke University required by this act no later than the fifteenth day after this act becomes law, and shall disburse the funds allocated by the contract to Duke University within five days of execution of the contract. The contract the Department of Public Instruction enters into shall terminate no later than September 15, 2021. The contract required by this act shall not be subject to Article 3 or Article 8 of Chapter 143 of the General Statutes, or any other provision of law relating to initial purchase and contract requirements in completing the contract."

Session Laws 2021-33, s. 3, provides: "Notwithstanding Article 8 of Chapter 143 of the General Statutes, G.S. 136-28.1, and any other provision of law to the contrary, the Department of Transportation, Ferry Division, shall lease a passenger ferry vessel for operation between Hatteras and Ocracoke. The term of the lease shall end no later than August 15, 2021. Except as otherwise provided in this section, of the funds appropriated in S.L. 2020-91 from the Highway Fund to the Department of Transportation, the sum of seven hundred thousand dollars ($700,000) in nonrecurring funds shall be used by the Division to lease and operate the ferry. The Division shall exercise the opt-out clause of the lease when the Division determines the State-owned ferry for passenger service on the Hatteras-Ocracoke route can be operationalized within 30 days if the cost of opting out is less than the cost of completing the term of the lease. Following the expiration or termination of the lease, any remaining funds shall be deposited in the Ferry Systemwide reserve account established in G.S. 136-82(f2) for use in accordance with that subsection.”

Session Laws 2021-108, s. 3(b), provides: "Of the funds appropriated from the Highway Fund to the Department of Transportation for the 2021-2022 fiscal year, the Department may use up to two hundred twenty thousand dollars ($220,000) in nonrecurring funds to extend the passenger ferry lease authorized by Section 3 of S.L. 2021-33, as amended by subsection (a) of this section.”

Effect of Amendments. - Session Laws 2012-142, s. 9.4(g), effective July 1, 2012, repealed subsection (a2), which pertained to annual reporting by The University of North Carolina and all other public entities.

Session Laws 2013-401, s. 3, added subdivisions (a1)(6), (a1)(7), and (a1)(8). For effective date and applicability, see editor's note.

Legal Periodicals. - See legislative survey, 21 Campbell L. Rev. 323 (1999).

§ 143-128.1. Construction management at risk contracts.

1. For purposes of this section and G.S. 143-64.31:
   1. "Construction management services" means services provided by a construction manager, which may include preparation and coordination of bid packages, scheduling, cost control, value engineering, evaluation, preconstruction services, and construction administration.
   2. "Construction management at risk services" means services provided by a person, corporation, or entity that (i) provides construction management services for a project throughout the preconstruction and construction phases, (ii) who is licensed as a general contractor, and (iii) who guarantees the cost of the project.
   3. "Construction manager at risk" means a person, corporation, or entity that provides construction management at risk services.
   4. "First-tier subcontractor" means a subcontractor who contracts directly with the construction manager at risk.
2. The construction manager at risk shall be selected in accordance with Article 3D of this Chapter. Design services for a project shall be performed by a licensed architect or engineer. The public owner shall contract directly with the architect or engineer. The public owner shall make a good-faith effort to comply with G.S. 143-128.2, G.S. 143-128.4, and to recruit and select small business entities when selecting a construction manager at risk.
3. The construction manager at risk shall contract directly with the public entity for all construction; shall publicly advertise as prescribed in G.S. 143-129; and shall prequalify and accept bids from first-tier subcontractors for all construction work under this section. The construction manager at risk shall use the prequalification process determined by the public entity in accordance with G.S. 143-135.8, provided that public entity and the construction manager at risk shall jointly develop the assessment tool and criteria for that specific project, which must include the prequalification scoring values and minimum required score for prequalification on that project. The public entity shall require the construction manager at risk to submit its plan for compliance with G.S. 143-128.2 for approval by the public entity prior to soliciting bids for the project's first-tier subcontractors. A construction manager at risk and first-tier subcontractors shall make a good faith effort to comply with G.S. 143-128.2, G.S. 143-128.4, and to recruit and select small business entities. A construction manager at risk may perform a portion of the work only if (i) bidding produces no responsible, responsive bidder for that portion of the work, the lowest responsible, responsive bidder will not execute a contract for the bid portion of the work, or the subcontractor defaults and a prequalified replacement cannot be obtained in a timely manner, and (ii) the public entity approves of the construction manager at risk's performance of the work. All bids shall be opened publicly, and once they are opened, shall be public records under Chapter 132 of the General Statutes. The construction manager at risk shall act as the fiduciary of the public entity in handling and opening bids. The construction manager at risk shall award the contract to the lowest responsible, responsive bidder, taking into consideration quality, performance, the time specified in the bids for performance of the contract, the cost of construction oversight, time for completion, compliance with G.S. 143-128.2, and other factors deemed appropriate by the public entity and advertised as part of the bid solicitation. The public entity may require the selection of a different first-tier subcontractor for any portion of the work, consistent with this section, provided that the construction manager at risk is compensated for any additional cost incurred.
4. The construction manager at risk shall provide a performance and payment bond to the public entity in accordance with the provisions of Article 3 of Chapter 44A of the General Statutes.
5. Construction management at risk services may be used by the public entity only after the public entity has concluded that construction management at risk services is in the best interest of the project, and the public entity has compared the advantages and disadvantages of using the construction management at risk method for a given project in lieu of the delivery methods identified in G.S. 143-128(a1)(1) through G.S. 143-128(a1)(3). The public entity may not delegate this determination.

When contracts are awarded pursuant to this section, the public entity shall provide for a dispute resolution procedure as provided in G.S. 143-128(f1).

History

(2001-496, s. 2; 2013-401, s. 5; 2014-42, s. 2.)

Editor's Note. - Session Laws 2013-401, provides in its preamble: "Whereas, the legislature recognizes that there is a public need for the design, construction, improvement, renovation, and expansion of high-performing public buildings within the State of North Carolina; and

"Whereas, the public need may not be, in limited situations, wholly satisfied by existing procurement methods in which public buildings are designed, constructed, improved, renovated, or expanded; and

"Whereas, many local governmental entities request special legislative authorization to enter into public-private partnerships and use design-build contracting every legislative session; and

"Whereas, in some instances, more efficient delivery of quality design and construction can be realized when a governmental entity is authorized to utilize an integrated approach for the design and construction of a project under one contract with a single point of responsibility; and

"Whereas, the design-build integrated approach to project delivery, based upon qualifications and experience, in some instances, can yield improved collaboration among design professionals, builders, and owners throughout the entire process and deliver a quality and cost-efficient building; and

"Whereas, certain governmental entities within the State lack the financial resources required to undertake capital building construction projects that are necessary to satisfy critical public needs; and

"Whereas, partnerships with private developers may offer an effective financial mechanism for governmental entities to secure public buildings to satisfy critical public needs that cannot otherwise be met; and

"Whereas, the legislature recognizes that the general public must have confidence in governmental entities' processes for construction contracting; and

"Whereas, the legislature realizes that open competition delivers the best value for taxpayers and public owners; and

"Whereas, the legislature seeks to create transparent, fair, and equitable contracting procedures for the use of public funds in government construction contracting; and

"Whereas, the legislation proposed in this act is not intended to affect the existing statutes, regulations, or practices relevant to projects administered by the North Carolina Department of Transportation nor licensing requirements of designers or contractors; Now, therefore,"

Session Laws 2014-42, s. 10, made the amendment to this section by Session Laws 2014-42, s. 2, applicable to contracts awarded on or after October 1, 2014.

Effect of Amendments. - Session Laws 2013-401, s. 5, added the last sentence in subsection (b); and substituted "to comply with G.S. 143-128.2, G.S. 143-128.4, and to recruit and select small business entities" for "to recruit and select minority businesses for participation in contracts pursuant to G.S. 143-128.2" in the fourth sentence of subsection (c). For effective date and applicability, see Editor's note.

Session Laws 2014-42, s. 2, effective October 1, 2014, in the second sentence of subsection (c), substituted "construction manager at risk shall use the prequalification process determined by the public entity in accordance with G.S. 143-135.8, provided that public entity and the construction manager at risk shall jointly develop the assessment tool and criteria for that specific project, which must include the prequalification scoring values and minimum required score for prequalification on that project" for "prequalification criteria shall be determined by the public entity and the construction manager at risk to address quality, performance, the time specified in the bids for performance of the contract, the cost of construction oversight, time for completion, capacity to perform, and other factors deemed appropriate by the public entity" and added subsection (e). See Editor's note for applicability.

§ 143-128.1A. Design-build contracts.

1. Definitions for purposes of this section:
   1. Design-builder. - As defined in G.S. 143-128.1B.
   2. Governmental entity. - As defined in G.S. 143-128.1B.
2. A governmental entity shall establish in writing the criteria used for determining the circumstances under which the design-build method is appropriate for a project, and such criteria shall, at a minimum, address all of the following:
   1. The extent to which the governmental entity can adequately and thoroughly define the project requirements prior to the issuance of the request for qualifications for a design-builder.
   2. The time constraints for the delivery of the project.
   3. The ability to ensure that a quality project can be delivered.
   4. The capability of the governmental entity to manage and oversee the project, including the availability of experienced staff or outside consultants who are experienced with the design-build method of project delivery.
   5. A good-faith effort to comply with G.S. 143-128.2, G.S. 143-128.4, and to recruit and select small business entities. The governmental entity shall not limit or otherwise preclude any respondent from submitting a response so long as the respondent, itself or through its proposed team, is properly licensed and qualified to perform the work defined by the public notice issued under subsection (c) of this section.
   6. The criteria utilized by the governmental entity, including a comparison of the advantages and disadvantages of using the design-build delivery method for a given project in lieu of the delivery methods identified in subdivisions (1), (2), and (4) of G.S. 143-128(a1).
3. A governmental entity shall issue a public notice of the request for qualifications that includes, at a minimum, general information on each of the following:
   1. The project site.
   2. The project scope.
   3. The anticipated project budget.
   4. The project schedule.
   5. The criteria to be considered for selection and the weighting of the qualifications criteria.
   6. Notice of any rules, ordinances, or goals established by the governmental entity, including goals for minority- and women-owned business participation and small business participation.
   7. Other information provided by the owner to potential design-builders in submitting qualifications for the project.
   8. A statement providing that each design-builder shall submit in its response to the request for qualifications an explanation of its project team selection, which shall consist of either of the following:
      1. A list of the licensed contractors, licensed subcontractors, and licensed design professionals whom the design-builder proposes to use for the project's design and construction.
      2. An outline of the strategy the design-builder plans to use for open contractor and subcontractor selection based upon the provisions of Article 8 of Chapter 143 of the General Statutes.
4. Following evaluation of the qualifications of the design-builders, the three most highly qualified design-builders shall be ranked. If after the solicitation for design-builders not as many as three responses have been received from qualified design-builders, the governmental entity shall again solicit for design-builders. If as a result of such second solicitation not as many as three responses are received, the governmental entity may then begin negotiations with the highest-ranked design-builder under G.S. 143-64.31 even though fewer than three responses were received. If the governmental entity deems it appropriate, the governmental entity may invite some or all responders to interview with the governmental entity.
5. The design-builder shall be selected in accordance with Article 3D of this Chapter. Each design-builder shall certify to the governmental entity that each licensed design professional who is a member of the design-build team, including subconsultants, was selected based upon demonstrated competence and qualifications in the manner provided by G.S. 143-64.31.
6. The design-builder shall provide a performance and payment bond to the governmental entity in accordance with the provisions of Article 3 of Chapter 44A of the General Statutes. The design-builder shall obtain written approval from the governmental entity prior to changing key personnel as listed in sub-subdivision (c)(8)a. of this section after the contract has been awarded.

History

(2013-401, s. 4; 2014-42, s. 7.)

Editor's Note. - Session Laws 2013-401, s. 9, provides: "This act becomes effective 30 days after it becomes law [September 22, 2013] and applies to projects bid on or after that date and public-private development contracts entered into on or after that date, and does not supersede any prior enacted local act of the General Assembly enacted on or before July 1, 2013."

Session Laws 2013-401, provides in its preamble: "Whereas, the legislature recognizes that there is a public need for the design, construction, improvement, renovation, and expansion of high-performing public buildings within the State of North Carolina; and

"Whereas, the public need may not be, in limited situations, wholly satisfied by existing procurement methods in which public buildings are designed, constructed, improved, renovated, or expanded; and

"Whereas, many local governmental entities request special legislative authorization to enter into public-private partnerships and use design-build contracting every legislative session; and

"Whereas, in some instances, more efficient delivery of quality design and construction can be realized when a governmental entity is authorized to utilize an integrated approach for the design and construction of a project under one contract with a single point of responsibility; and

"Whereas, the design-build integrated approach to project delivery, based upon qualifications and experience, in some instances, can yield improved collaboration among design professionals, builders, and owners throughout the entire process and deliver a quality and cost-efficient building; and

"Whereas, certain governmental entities within the State lack the financial resources required to undertake capital building construction projects that are necessary to satisfy critical public needs; and

"Whereas, partnerships with private developers may offer an effective financial mechanism for governmental entities to secure public buildings to satisfy critical public needs that cannot otherwise be met; and

"Whereas, the legislature recognizes that the general public must have confidence in governmental entities' processes for construction contracting; and

"Whereas, the legislature realizes that open competition delivers the best value for taxpayers and public owners; and

"Whereas, the legislature seeks to create transparent, fair, and equitable contracting procedures for the use of public funds in government construction contracting; and

"Whereas, the legislation proposed in this act is not intended to affect the existing statutes, regulations, or practices relevant to projects administered by the North Carolina Department of Transportation nor licensing requirements of designers or contractors; Now, therefore,"

Session Laws 2014-42, s. 10, made the amendment to this section by Session Laws 2014-42, s. 8, applicable to contracts awarded on or after October 1, 2014.

Effect of Amendments. - Session Laws 2014-42, s. 7, effective October 1, 2014, substituted "advantages and disadvantages" for "cost and benefit" in subdivision (b)(6). See Editor's note for applicability.

§ 143-128.1B. Design-build bridging contracts.

1. Definitions for purposes of this section:
   1. Design-build bridging. - A design and construction delivery process whereby a governmental entity contracts for design criteria services under a separate agreement from the construction phase services of the design-builder.
   2. Design-builder. - An appropriately licensed person, corporation, or entity that, under a single contract, offers to provide or provides design services and general contracting services where services within the scope of the practice of professional engineering or architecture are performed respectively by a licensed engineer or licensed architect and where services within the scope of the practice of general contracting are performed by a licensed general contractor.
   3. Design criteria. - The requirements for a public project expressed in drawings and specifications sufficient to allow the design-builder to make a responsive bid proposal.
   4. Design professional. - Any professional licensed under Chapters 83A, 89A, or 89C of the General Statutes.
   5. First-tier subcontractor. - A subcontractor who contracts directly with the design-builder, excluding design professionals.
   6. Governmental entity. - Every officer, board, department, commission, or commissions charged with responsibility of preparation of specifications or awarding or entering into contracts for the erection, construction, alteration, or repair of any buildings for the State or for any county, municipality, or other public body.
2. A governmental entity shall establish in writing the criteria used for determining the circumstances under which engaging a design criteria design professional is appropriate for a project, and such criteria shall, at a minimum, address all of the following:
   1. The extent to which the governmental entity can adequately and thoroughly define the project requirements prior to the issuance of the request for proposals for a design-builder.
   2. The time constraints for the delivery of the project.
   3. The ability to ensure that a quality project can be delivered.
   4. The capability of the governmental entity to manage and oversee the project, including the availability of experienced staff or outside consultants who are experienced with the design-build method of project delivery.
   5. A good-faith effort to comply with G.S. 143-128.2, G.S. 143-128.4, and to recruit and select small business entities. The governmental entity shall not limit or otherwise preclude any respondent from submitting a response so long as the respondent, itself or through its proposed team, is properly licensed and qualified to perform the work defined by the public notice issued under subsection (d) of this section.
   6. The criteria utilized by the governmental entity, including a comparison of the advantages and disadvantages of using the design-build delivery method for a given project in lieu of the delivery methods identified in subdivisions (1), (2), and (4) of G.S. 143-128(a1).
3. On or before entering into a contract for design-build services under this section, the governmental entity shall select or designate a staff design professional, or a design professional who is independent of the design-builder, to act as its design criteria design professional as its representative for the procurement process and for the duration of the design and construction. If the design professional is not a full-time employee of the governmental entity, the governmental entity shall select the design professional on the basis of demonstrated competence and qualifications as provided by G.S. 143-64.31. The design criteria design professional shall develop design criteria in consultation with the governmental entity. The design criteria design professional shall not be eligible to submit a response to the request for proposals nor provide design input to a design-build response to the request for proposals. The design criteria design professional shall prepare a design criteria package equal to thirty-five percent (35%) of the completed design documentation for the entire construction project. The design criteria package shall include all of the following:
   1. Programmatic needs, interior space requirements, intended space utilization, and other capacity requirements.
   2. Information on the physical characteristics of the site, such as a topographic survey.
   3. Material quality standards or performance criteria.
   4. Special material requirements.
   5. Provisions for utilities.
   6. Parking requirements.
   7. The type, size, and location of adjacent structures.
   8. Preliminary or conceptual drawings and specifications sufficient in detail to allow the design-builder to make a proposal which is responsive to the request for proposals.
   9. Notice of any ordinances, rules, or goals adopted by the governmental entity.
4. A governmental entity shall issue a public notice of the request for proposals that includes, at a minimum, general information on each of the following:
   1. The project site.
   2. The project scope.
   3. The anticipated project budget.
   4. The project schedule.
   5. The criteria to be considered for selection and the weighting of the selection criteria.
   6. Notice of any rules, ordinances, or goals established by the governmental entity, including goals for minority- and women-owned business participation and small business entities.
   7. The thirty-five percent (35%) design criteria package prepared by the design criteria design professional.
   8. Other information provided by the owner to design-builders in submitting responses to the request for proposals for the project.
   9. A statement providing that each design-builder shall submit in its request for proposal response an explanation of its project team selection, which shall consist of a list of the licensed contractor and licensed design professionals whom the design-builder proposes to use for the project's design and construction.
   10. A statement providing that each design-builder shall submit in its request for proposal a sealed envelope with all of the following:
       1. The design-builder's price for providing the general conditions of the contract.
       2. The design-builder's proposed fee for general construction services.
       3. The design-builder's fee for design services.
5. Following evaluation of the qualifications of the design-builders, the governmental entity shall rank the design-builders who have provided responses, grouping the top three without ordinal ranking. If after the solicitation for design-builders not as many as three responses have been received from qualified design-builders, the governmental entity shall again solicit for design-builders. If as a result of such second solicitation not as many as three responses are received, the governmental entity may then make its selection. From the grouping of the top three design-builders, the governmental entity shall select the design-builder who is the lowest responsive, responsible bidder based on the cumulative amount of fees provided in accordance with subdivision (d)(10) of this section and taking into consideration quality, performance, and the time specified in the proposals for the performance of the contract. Each design-builder shall certify to the governmental entity that each licensed design professional who is a member of the design-build team, including subconsultants, was selected based upon demonstrated competence and qualifications in the manner provided by G.S. 143-64.31.
6. The design-builder shall accept bids based upon the provisions of this Article from first-tier subcontractors for all construction work under this section.
7. The design-builder shall provide a performance and payment bond to the governmental entity in accordance with the provisions of Article 3 of Chapter 44A of the General Statutes. The design-builder shall obtain written approval from the governmental entity prior to changing key personnel, as listed under subdivision (d)(9) of this section, after the contract has been awarded.

History

(2013-401, s. 4; 2014-42, s. 6.)

Editor's Note. - Session Laws 2013-401, s. 9, provides: "This act becomes effective 30 days after it becomes law [September 22, 2013] and applies to projects bid on or after that date and public-private development contracts entered into on or after that date, and does not supersede any prior enacted local act of the General Assembly enacted on or before July 1, 2013."

Session Laws 2013-401, provides in its preamble: "Whereas, the legislature recognizes that there is a public need for the design, construction, improvement, renovation, and expansion of high-performing public buildings within the State of North Carolina; and

"Whereas, the public need may not be, in limited situations, wholly satisfied by existing procurement methods in which public buildings are designed, constructed, improved, renovated, or expanded; and

"Whereas, many local governmental entities request special legislative authorization to enter into public-private partnerships and use design-build contracting every legislative session; and

"Whereas, in some instances, more efficient delivery of quality design and construction can be realized when a governmental entity is authorized to utilize an integrated approach for the design and construction of a project under one contract with a single point of responsibility; and

"Whereas, the design-build integrated approach to project delivery, based upon qualifications and experience, in some instances, can yield improved collaboration among design professionals, builders, and owners throughout the entire process and deliver a quality and cost-efficient building; and

"Whereas, certain governmental entities within the State lack the financial resources required to undertake capital building construction projects that are necessary to satisfy critical public needs; and

"Whereas, partnerships with private developers may offer an effective financial mechanism for governmental entities to secure public buildings to satisfy critical public needs that cannot otherwise be met; and

"Whereas, the legislature recognizes that the general public must have confidence in governmental entities' processes for construction contracting; and

"Whereas, the legislature realizes that open competition delivers the best value for taxpayers and public owners; and

"Whereas, the legislature seeks to create transparent, fair, and equitable contracting procedures for the use of public funds in government construction contracting; and

"Whereas, the legislation proposed in this act is not intended to affect the existing statutes, regulations, or practices relevant to projects administered by the North Carolina Department of Transportation nor licensing requirements of designers or contractors; Now, therefore,"

Session Laws 2014-42, s. 10, made the amendment to this section by Session Laws 2014-42, s. 6, applicable to contracts awarded on or after October 1, 2014.

Effect of Amendments. - Session Laws 2014-42, s. 6, effective October 1, 2014, substituted "advantages and disadvantages" for "cost and benefit" in subdivision (b)(6). See Editor's note for applicability.

§ 143-128.1C. Public-private partnership construction contracts.

1. Definitions for purposes of this section:
   1. Construction contract. - Any contract entered into between a private developer and a contractor for the design, construction, reconstruction, alteration, or repair of any building or other work or improvement required for a private developer to satisfy its obligations under a development contract.
   2. Contractor. - Any person who has entered into a construction contract with a private developer under this section.
   3. Design-builder. - Defined in G.S. 143-128.1B.
   4. Development contract. - Any contract between a governmental entity and a private developer under this section and, as part of the contract, the private developer is required to provide at least fifty percent (50%) of the financing for the total cost necessary to deliver the capital improvement project, whether through lease or ownership, for the governmental entity. For purposes of determining whether the private developer is providing the minimum percentage of the total financing costs, the calculation shall not include any payment made by a public entity or proceeds of financing arrangements by a private entity where the source of repayment is a public entity.
   5. Governmental entity. - Defined in G.S. 143-128.1B.
   6. Labor or materials. - Includes all materials furnished or labor performed in the performance of the work required by a construction contract whether or not the labor or materials enter into or become a component part of the improvement and shall include gas, power, light, heat, oil, gasoline, telephone services, and rental of equipment or the reasonable value of the use of equipment directly utilized in the performance of the work required by a construction contract.
   7. Private developer. - Any person who has entered into a development contract with a governmental entity under this section.
   8. Public-private project. - A capital improvement project undertaken for the benefit of a governmental entity and a private developer pursuant to a development contract that includes construction of a public facility or other improvements, including paving, grading, utilities, infrastructure, reconstruction, or repair, and may include both public and private facilities.
   9. State entity. - The State and every agency, authority, institution, board, commission, bureau, council, department, division, officer, or employee of the State. The term does not include a unit of local government as defined in G.S. 159-7.
   10. State-supported financing arrangement. - Any installment financing arrangement, lease-purchase arrangement, arrangement under which funds are to be paid in the future based upon the availability of an asset or funds for payment, or any similar arrangement in the nature of a financing, under which a State entity agrees to make payments to acquire or obtain ownership or beneficial use of a capital asset for the State entity or any other State entity for a term, including renewal options, of greater than one year. Any arrangement that results in the identification of a portion of a lease payment, installment payment, or similar scheduled payment thereunder by a State entity as "interest" for purposes of federal income taxation shall automatically be a State-supported financing arrangement for purposes of this section. A true operating lease is not a State-supported financing arrangement.
   11. Subcontractor. - Any person who has contracted to furnish labor, services, or materials to, or who has performed labor or services for, a contractor or another subcontractor in connection with a development contract.
2. If the governmental entity determines in writing that it has a critical need for a capital improvement project, the governmental entity may acquire, construct, own, lease as lessor or lessee, and operate or participate in the acquisition, construction, ownership, leasing, and operation of a public-private project, or of specific facilities within such a project, including the making of loans and grants from funds available to the governmental entity for these purposes. If the governmental entity is a public body under Article 33C of this Chapter, the determination shall occur during an open meeting of that public body. The governmental entity may enter into development contracts with private developers with respect to acquiring, constructing, owning, leasing, or operating a project under this section. If the development contract is entered into by a governmental entity that is a unit of local government as defined in G.S. 159-7, and the unit must finance all or part of its portion of the cost of the project, then the amount financed by the unit is subject to approval by the Local Government Commission as provided in Chapter 159 of the General Statutes. Approval must be secured prior to the execution of the development contract. The development contract shall specify the following:
   1. The property interest of the governmental entity and all other participants in the development of the project.
   2. The responsibilities of the governmental entity and all other participants in the development of the project.
   3. The responsibilities of the governmental entity and all other participants with respect to financing of the project.
   4. The responsibilities to put forth a good-faith effort to comply with G.S. 143-128.2, G.S. 143-128.4, and to recruit and select small business entities.
3. The development contract may provide that the private developer shall be responsible for any or all of the following:
   1. Construction of the entire public-private project.
   2. Reconstruction or repair of the public-private project or any part thereof subsequent to construction of the project.
   3. Construction of any addition to the public-private project.
   4. Renovation of the public-private project or any part thereof.
   5. Purchase of apparatus, supplies, materials, or equipment for the public-private project whether during or subsequent to the initial equipping of the project.
   6. A good-faith effort to comply with G.S. 143-128.2, G.S. 143-128.4, and to recruit and select small business entities.
4. The development contract may also provide that the governmental entity and private developer shall use the same contractor or contractors in constructing a portion of or the entire public-private project. If the development contract provides that the governmental entity and private developer shall use the same contractor, the development contract shall include provisions deemed appropriate by the governmental entity to assure that the public facility or facilities included in or added to the public-private project are constructed, reconstructed, repaired, or renovated at a reasonable price and that the apparatus, supplies, materials, and equipment purchased for the public facility or facilities included in the public-private project are purchased at a reasonable price. For public-private partnerships using the design-build project delivery method, the provisions of G.S. 143-128.1A shall apply.
5. A private developer and its contractors shall make a good-faith effort to comply with G.S. 143-128.2, G.S. 143-128.4, and to recruit and select small business entities.
6. A private developer may perform a portion of the construction or design work only if both of the following criteria apply:
   1. A previously engaged contractor defaults, and a qualified replacement cannot be obtained after a good-faith effort has been made in a timely manner.
   2. The governmental entity approves the private developer to perform the work.
7. The following bonding provisions apply to any development contract entered into under this section:
   1. A payment bond shall be required for any development contract as follows: A payment bond in the amount of one hundred percent (100%) of the total anticipated amount of the construction contracts to be entered into between the private developer and the contractors to design or construct the improvements required by the development contract. The payment bond shall be conditioned upon the prompt payment for all labor or materials for which the private developer or one or more of its contractors or those contractors' subcontractors are liable. The payment bond shall be solely for the protection of the persons furnishing materials or performing labor or services for which the private developer or its contractors or subcontractors are liable. The total anticipated amount of the construction contracts shall be stated in the development contract and certified by the private developer as being a good-faith projection of its total costs for designing and constructing the improvements required by the development contract. The payment bond shall be executed by one or more surety companies legally authorized to do business in the State of North Carolina and shall become effective upon the awarding of the development contract. The development contract may provide for the requirement of a performance bond.
   2. 1. Subject to the provisions of this subsection, any claimant who has performed labor or furnished materials in the prosecution of the work required by any contract for which a payment bond has been given pursuant to the provisions of this subsection, and who has not been paid in full therefor before the expiration of 90 days after the day on which the claimant performed the last labor or furnished the last materials for which that claimant claims payment, may bring an action on the payment bond in that claimant's own name to recover any amount due to that claimant for the labor or materials and may prosecute the action to final judgment and have execution on the judgment. (2) a. Subject to the provisions of this subsection, any claimant who has performed labor or furnished materials in the prosecution of the work required by any contract for which a payment bond has been given pursuant to the provisions of this subsection, and who has not been paid in full therefor before the expiration of 90 days after the day on which the claimant performed the last labor or furnished the last materials for which that claimant claims payment, may bring an action on the payment bond in that claimant's own name to recover any amount due to that claimant for the labor or materials and may prosecute the action to final judgment and have execution on the judgment.
      2. Any claimant who has a direct contractual relationship with any contractor or any subcontractor but has no contractual relationship, express or implied, with the private developer may bring an action on the payment bond only if that claimant has given written notice of claim on the payment bond to the private developer within 120 days from the date on which the claimant performed the last of the labor or furnished the last of the materials for which that claimant claims payment, in which that claimant states with substantial accuracy the amount claimed and the name of the person for whom the work was performed or to whom the material was furnished.
      3. The notice required by sub-subdivision b. of this subdivision shall be served by certified mail or by signature confirmation as provided by the United States Postal Service, postage prepaid, in an envelope addressed to the private developer at any place where that private developer's office is regularly maintained for the transaction of business or in any manner provided by law for the service of summons. The claimants' service of a claim of lien on real property or a claim of lien on funds as funds as allowed by Article 2 of Chapter 44A of the General Statutes on the private developer shall be deemed, nonexclusively, as adequate notice under this section.
   3. Every action on a payment bond as provided in this subsection shall be brought in a court of appropriate jurisdiction in a county where the development contract or any part thereof is to be or has been performed. Except as provided in G.S. 44A-16(c), no action on a payment bond shall be commenced after one year from the day on which the last of the labor was performed or material was furnished by the claimant.
   4. No surety shall be liable under a payment bond for a total amount greater than the face amount of the payment bond. A judgment against any surety may be reduced or set aside upon motion by the surety and a showing that the total amount of claims paid and judgments previously rendered under the payment bond, together with the amount of the judgment to be reduced or set aside, exceeds the face amount of the bond.
   5. No act of or agreement between the governmental entity, a private developer, or a surety shall reduce the period of time for giving notice under sub-subdivision (2)b. of this subsection or commencing action under subdivision (3) of this subsection or otherwise reduce or limit the liability of the private developer or surety as prescribed in this subsection. Every bond given by a private developer pursuant to this subsection shall be conclusively presumed to have been given in accordance with the provisions of this subsection, whether or not the bond is drawn as to conform to this subsection. The provisions of this subsection shall be conclusively presumed to have been written into every bond given pursuant to this subsection.
   6. Any person entitled to bring an action or any defendant in an action on a payment bond shall have a right to require the governmental entity or the private developer to certify and furnish a copy of the payment bond, the development contract, and any construction contracts covered by the bond. It shall be the duty of the private developer or the governmental entity to give any such person a certified copy of the payment bond and the construction contract upon not less than 10 days' notice and request. The governmental entity or private developer may require a reasonable payment for the actual cost of furnishing the certified copy. A copy of any payment bond, development contract, and any construction contracts covered by the bond certified by the governmental entity or private developer shall constitute prima facie evidence of the contents, execution, and delivery of the bond, development contract, and construction contracts.
   7. A payment bond form containing the following provisions shall comply with this subsection:
      1. The date the bond is executed.
      2. The name of the principal.
      3. The name of the surety.
      4. The governmental entity.
      5. The development contract number.
      6. All of the following:
         1. "KNOW ALL MEN BY THESE PRESENTS, That we, the PRINCIPAL and SURETY above named, are held and firmly bound unto the above named [governmental entity], hereinafter called [governmental entity], in the penal sum of the amount stated above, for the payment of which sum well and truly to be made, we bind ourselves, our heirs, executors, administrators, and successors, jointly and severally, firmly by these presents."
         2. "THE CONDITION OF THIS OBLIGATION IS SUCH, that whereas the Principal entered into a certain development contract with [governmental entity], numbered as shown above and hereto attached."
         3. "NOW THEREFORE, if the Principal shall promptly make payment to all persons supplying labor and material in the prosecution of the construction or design work provided for in the development contract, and any and all duly authorized modifications of the contract that may hereafter be made, notice of which modifications to the surety being hereby waived, then this obligation to be void; otherwise to remain in full force and virtue."
         4. "IN WITNESS WHEREOF, the above bounden parties have executed this instrument under their several seals on the date indicated above, the name and corporate seal of each corporate party being hereto affixed and these presents duly signed by its undersigned representative, pursuant to authority of its governing body." Appropriate places for execution by the surety and principal shall be provided.
   8. In any suit brought or defended under the provisions of this subsection, the presiding judge may allow reasonable attorneys' fees to the attorney representing the prevailing party. Attorneys' fees under this subdivision are to be taxed as part of the court costs and shall be payable by the losing party upon a finding that there was an unreasonable refusal by the losing party to fully resolve the matter which constituted the basis of the suit or the basis of the defense. For purposes of this subdivision, the term "prevailing party" means a party plaintiff or third-party plaintiff who obtains a judgment of at least fifty percent (50%) of the monetary amount sought in a claim or a party defendant or third-party defendant against whom a claim is asserted which results in a judgment of less than fifty percent (50%) of the amount sought in the claim defended. Notwithstanding the provisions of this subdivision, if an offer of judgment is served in accordance with G.S. 1A-1, Rule 68, a "prevailing party" is an offeree who obtains judgment in an amount more favorable than the last offer or is an offeror against whom judgment is rendered in an amount less favorable than the last offer.
   9. The obligations and lien rights set forth in Article 2 of Chapter 44A of the General Statutes shall apply to a project awarded under this section to the extent of any property interests held by the private developer in the project. For purposes of applying the provisions of Article 2 of Chapter 44A of the General Statutes, the private developer shall be deemed the owner to the extent of that private developer's ownership interest. This subdivision shall not be construed as making the provisions of Article 2 of Chapter 44A of the General Statutes apply to governmental entities or public buildings to the extent of any property interest held by the governmental entity in the building.
8. The governmental entity shall determine its programming requirements for facilities to be constructed under this section and shall determine the form in which private developers may submit their qualifications. The governmental entity shall advertise a notice for interested private developers to submit qualifications in a newspaper having general circulation within the county in which the governmental entity is located. Prior to the submission of qualifications, the governmental entity shall make available, in whatever form it deems appropriate, the programming requirements for facilities included in the public-private project. Any private developer submitting qualifications shall include the following:
   1. Evidence of financial stability. However, "trade secrets" as that term is defined in G.S. 66-152(3) shall be exempt from disclosure under Chapter 132 of the General Statutes.
   2. Experience with similar projects.
   3. Explanation of project team selection by either listing of licensed contractors, licensed subcontractors, and licensed design professionals whom the private developer proposes to use for the project's design and construction or a statement outlining a strategy for open contractor and subcontractor selection based upon the provisions of this Article.
   4. Statement of availability to undertake the public-private project and projected time line for project completion.
   5. Any other information required by the governmental entity.
9. Based upon the qualifications package submitted by the private developers and any other information required by the governmental entity, the governmental entity may select one or more private developers with whom to negotiate the terms and conditions of a contract to perform the public-private project. The governmental entity shall advertise the terms of the proposed contract to be entered into by the governmental entity in a newspaper having general circulation within the county in which the governmental entity is located at least 30 days prior to entering into the development contract. If the governmental entity is a public body under Article 33C of this Chapter, the development contract shall be considered in an open meeting of that public body following a public hearing on the proposed development contract. Notice of the public hearing shall be published in the same notice as the advertisement of the terms under this subsection.
10. The governmental entity shall make available a summary of the development contract terms which shall include a statement of how to obtain a copy of the complete development contract.
11. Leases and other agreements entered into under this section are subject to approval as follows:
    1. If a capital lease or operating lease is entered into by a unit of local government as defined in G.S. 159-7, that capital lease or operating lease is subject to approval by the local government commission under Article 8 of Chapter 159 of the General Statutes if it meets the standards set out in G.S. 159-148(a)(1), 159-148(a)(2), and 159-148(a)(3), 159-148(a)(4) or 159-153. For purposes of determining whether the standards set out in G.S. 159-148(a)(3) have been met, only the five hundred thousand dollar ($500,000) threshold applies.
    2. If a capital lease or other agreement entered into by a State entity constitutes a State-supported financing arrangement and requires payments thereunder that are payable, whether directly or indirectly, and whether or not subject to the appropriation of funds for such payment, by payments from the General Fund of the State or other funds and accounts of the State that are funded from the general revenues and other taxes and fees of the State or State entities, not including taxes and fees that are required to be deposited to the Highway Fund or Highway Trust Fund to be used to make payments under capital leases or other agreements for projects covered under Article 14B of Chapter 136 of the General Statutes, that capital lease or other agreement shall be subject to the approval procedures required for special indebtedness by G.S. 142-83 and G.S. 142-84. This requirement shall not apply to any arrangement where bonds or other obligations are issued or incurred by a State entity to carry out a financing program authorized by the General Assembly under which such bonds or other obligations are payable from monies derived from specified, limited, nontax sources, so long as the payments under that arrangement by a State entity are limited to the sources authorized by the General Assembly.
12. A capital lease or operating lease entered into under this section may not contain any provision with respect to the assignment of specific students or students from a specific area to any specific school.
13. This section shall not apply to any contract or other agreement between or among The University of North Carolina or one of its constituent institutions, a private, nonprofit corporation established under Part 2B of Article 1 of Chapter 116 of the General Statutes, or any private foundation, private association, or private club created for the primary purpose of financial support to The University of North Carolina or one of its constituent institutions.

History

(2013-401, s. 4; 2015-241, s. 31.11(a); 2021-58, s. 2(a).)

Editor's Note. - Session Laws 2013-401, s. 9, provides: "This act becomes effective 30 days after it becomes law [September 22, 2013] and applies to projects bid on or after that date and public-private development contracts entered into on or after that date, and does not supersede any prior enacted local act of the General Assembly enacted on or before July 1, 2013."

Session Laws 2013-401, provides in its preamble: "Whereas, the legislature recognizes that there is a public need for the design, construction, improvement, renovation, and expansion of high-performing public buildings within the State of North Carolina; and

"Whereas, the public need may not be, in limited situations, wholly satisfied by existing procurement methods in which public buildings are designed, constructed, improved, renovated, or expanded; and

"Whereas, many local governmental entities request special legislative authorization to enter into public-private partnerships and use design-build contracting every legislative session; and

"Whereas, in some instances, more efficient delivery of quality design and construction can be realized when a governmental entity is authorized to utilize an integrated approach for the design and construction of a project under one contract with a single point of responsibility; and

"Whereas, the design-build integrated approach to project delivery, based upon qualifications and experience, in some instances, can yield improved collaboration among design professionals, builders, and owners throughout the entire process and deliver a quality and cost-efficient building; and

"Whereas, certain governmental entities within the State lack the financial resources required to undertake capital building construction projects that are necessary to satisfy critical public needs; and

"Whereas, partnerships with private developers may offer an effective financial mechanism for governmental entities to secure public buildings to satisfy critical public needs that cannot otherwise be met; and

"Whereas, the legislature recognizes that the general public must have confidence in governmental entities' processes for construction contracting; and

"Whereas, the legislature realizes that open competition delivers the best value for taxpayers and public owners; and

"Whereas, the legislature seeks to create transparent, fair, and equitable contracting procedures for the use of public funds in government construction contracting; and

"Whereas, the legislation proposed in this act is not intended to affect the existing statutes, regulations, or practices relevant to projects administered by the North Carolina Department of Transportation nor licensing requirements of designers or contractors; Now, therefore,"

Session Laws 2021-58, s. 2(b), made the third and fourth sentences of subsection (b), as added by Session Laws 2021-58, s. 2(a), effective July 1, 2021, and applicable to contracts entered into, renewed, or modified on or after that date.

Effect of Amendments. - Session Laws 2015-241, s. 31.11(a), effective September 18, 2015, in subsection (a), added the last sentence in subdivision (4), in subdivision (10), inserted "ownership or beneficial use of" in the first sentence, and added the last sentence; in subsection (k), inserted "and other agreements" in the introductory paragraph, in subdivision (2), in the first sentence, substituted "lease or other agreement entered into by a State entity constitutes" for "lease is entered into by a State entity that constitutes" near the beginning and substituted "Fund to be used to make payments under capital leases or other agreements for projects covered under Article 14B of Chapter 136 of the General Statutes, that capital lease or other agreement" for "Fund, that capital lease" near the end.

Session Laws 2021-58, s. 2(a), added the third and fourth sentences of subsection (b). For effective date and applicability, see editor's note.

§ 143-128.2. Minority business participation goals.

1. The State shall have a verifiable ten percent (10%) goal for participation by minority businesses in the total value of work for each State building project, including building projects done by a private entity on a facility to be leased or purchased by the State. A local government unit or other public or private entity that receives State appropriations for a building project or other State grant funds for a building project, including a building project done by a private entity on a facility to be leased or purchased by the local government unit, where the project cost is one hundred thousand dollars ($100,000) or more, shall have a verifiable ten percent (10%) goal for participation by minority businesses in the total value of the work; provided, however, a local government unit may apply a different verifiable goal that was adopted prior to December 1, 2001, if the local government unit had and continues to have a sufficiently strong basis in evidence to justify the use of that goal. On State building projects and building projects subject to the State goal requirement, the Secretary shall identify the appropriate percentage goal, based on adequate data, for each category of minority business as defined in G.S. 143-128.2(g)(1) based on the specific contract type.
2. A public entity shall establish prior to solicitation of bids the good faith efforts that it will take to make it feasible for minority businesses to submit successful bids or proposals for the contracts for building projects. Public entities shall make good faith efforts as set forth in subsection (e) of this section. Public entities shall require contractors to make good faith efforts pursuant to subsection (f) of this section. Each first-tier subcontractor on a construction management at risk project shall comply with the requirements applicable to contractors under this subsection.
3. 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 shall also file the following:
   1. Within the time specified in the bid documents, either:
      1. An affidavit that includes a description of the portion of work to be executed by minority businesses, expressed as a percentage of the total contract price, which is equal to or more than the applicable goal. An affidavit under this sub-subdivision shall give rise to a presumption that the bidder has made the required good faith or effort; or
      2. Documentation of its good faith effort to meet the goal. The documentation must include evidence of all good faith efforts that were implemented, including any advertisements, solicitations, and evidence of other specific actions demonstrating recruitment and selection of minority businesses for participation in the contract.
   2. Within 30 days after award of the contract, a list of all identified subcontractors that the contractor will use on the project.
4. No subcontractor who is identified and listed pursuant to subsection (c) of this section may be replaced with a different subcontractor except:
   1. If the subcontractor's bid is later determined by the contractor or construction manager at risk to be nonresponsible or nonresponsive, or the listed subcontractor refuses to enter into a contract for the complete performance of the bid work, or
   2. With the approval of the public entity for good cause.
5. Before awarding a contract, a public entity shall do the following:
   1. Develop and implement a minority business participation outreach plan to identify minority businesses that can perform public building projects and to implement outreach efforts to encourage minority business participation in these projects to include education, recruitment, and interaction between minority businesses and nonminority businesses.
   2. Attend the scheduled prebid conference.
   3. At least 10 days prior to the scheduled day of bid opening, notify minority businesses that have requested notices from the public entity for public construction or repair work and minority businesses that otherwise indicated to the Office of Historically Underutilized Businesses an interest in the type of work being bid or the potential contracting opportunities listed in the proposal. The notification shall include the following:
      1. A description of the work for which the bid is being solicited.
      2. The date, time, and location where bids are to be submitted.
      3. The name of the individual within the public entity who will be available to answer questions about the project.
      4. Where bid documents may be reviewed.
      5. Any special requirements that may exist.
   4. Utilize other media, as appropriate, likely to inform potential minority businesses of the bid being sought.
6. A public entity shall require bidders to undertake the following good faith efforts to the extent required by the Secretary on projects subject to this section. The Secretary shall adopt rules establishing points to be awarded for taking each effort and the minimum number of points required, depending on project size, cost, type, and other factors considered relevant by the Secretary. In establishing the point system, the Secretary may not require a contractor to earn more than fifty (50) points, and the Secretary must assign each of the efforts listed in subdivisions (1) through (10) of this subsection at least 10 points. The public entity may require that additional good faith efforts be taken, as indicated in its bid specifications. Good faith efforts include:
   1. Contacting minority businesses that reasonably could have been expected to submit a quote and that were known to the contractor or available on State or local government maintained lists at least 10 days before the bid or proposal date and notifying them of the nature and scope of the work to be performed.
   2. Making the construction plans, specifications and requirements available for review by prospective minority businesses, or providing these documents to them at least 10 days before the bid or proposals are due.
   3. Breaking down or combining elements of work into economically feasible units to facilitate minority participation.
   4. Working with minority trade, community, or contractor organizations identified by the Office of Historically Underutilized Businesses and included in the bid documents that provide assistance in recruitment of minority businesses.
   5. Attending any prebid meetings scheduled by the public owner.
   6. Providing assistance in getting required bonding or insurance or providing alternatives to bonding or insurance for subcontractors.
   7. Negotiating in good faith with interested minority businesses and not rejecting them as unqualified without sound reasons based on their capabilities. Any rejection of a minority business based on lack of qualification should have the reasons documented in writing.
   8. Providing assistance to an otherwise qualified minority business in need of equipment, loan capital, lines of credit, or joint pay agreements to secure loans, supplies, or letters of credit, including waiving credit that is ordinarily required. Assisting minority businesses in obtaining the same unit pricing with the bidder's suppliers in order to help minority businesses in establishing credit.
   9. Negotiating joint venture and partnership arrangements with minority businesses in order to increase opportunities for minority business participation on a public construction or repair project when possible.
   10. Providing quick pay agreements and policies to enable minority contractors and suppliers to meet cash-flow demands.
7. As used in this section:
   1. The term "minority business " means a business:
      1. In which at least fifty-one percent (51%) is owned by one or more minority persons or socially and economically disadvantaged individuals, or in the case of a corporation, in which at least fifty-one percent (51%) of the stock is owned by one or more minority persons or socially and economically disadvantaged individuals; and
      2. Of which the management and daily business operations are controlled by one or more of the minority persons or socially and economically disadvantaged individuals who own it.
   2. The term "minority person " means a person who is a citizen or lawful permanent resident of the United States and who is:
      1. Black, that is, a person having origins in any of the black racial groups in Africa;
      2. Hispanic, that is, a person of Spanish or Portuguese culture with origins in Mexico, South or Central America, or the Caribbean Islands, regardless of race;
      3. Asian American, that is, a person having origins in any of the original peoples of the Far East, Southeast Asia and Asia, the Indian subcontinent, or the Pacific Islands;
      4. American Indian, that is, a person having origins in any of the original Indian peoples of North America; or
      5. Female.
   3. The term "socially and economically disadvantaged individual " means the same as defined in 15 U.S.C. 637.
8. 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.
9. Notwithstanding G.S. 132-3 and G.S. 121-5, all public records created pursuant to this section shall be maintained by the public entity for a period of not less than three years from the date of the completion of the building project.
10. Except as provided in subsections (a), (g), (h) and (i) of this section, this section shall only apply to building projects costing three hundred thousand dollars ($300,000) or more. This section shall not apply to the purchase and erection of prefabricated or relocatable buildings or portions thereof, except that portion of the work which must be performed at the construction site.

Except as otherwise provided for in this subsection, each city, county, or other local public entity shall adopt, after a notice and public hearing, an appropriate verifiable percentage goal for participation by minority businesses in the total value of work for building projects.

Each entity required to have verifiable percentage goals under this subsection shall make a good faith effort to recruit minority participation in accordance with this section or G.S. 143-131(b), as applicable.

Failure to file a required affidavit or documentation that demonstrates that the contractor made the required good faith effort is grounds for rejection of the bid.

Good faith efforts as set forth in G.S. 143-131(b) shall apply to the selection of a substitute subcontractor. Prior to substituting a subcontractor, the contractor shall identify the substitute subcontractor and inform the public entity of its good faith efforts pursuant to G.S. 143-131(b).

History

(2001-496, s. 3.1.)

Local Modification. - (As to certain economic development projects) Buncombe: 2013-31, s. 1 (expires June 30, 2016); 2013-40, s. 1 (expires June 30, 2016); (As to school building contracts) Cabarrus: 2009-430, s. 2 (expires June 30, 2014); Catawba: 2010-63, s. 1; Cherokee: 2007-48, s. 1; Clay: 2006-94, s. 1; 2012-32, s. 1 (as to renovation and restoration of Clay County's old courthouse building as multipurpose facility, and expires June 30, 2015); Currituck: 1993 (Reg. Sess., 1994), c. 668, s. 1; Dare: 1999-40, s. 1; 2003-47, s. 1 (as to design and construction of administration building and renovation of Old Dare Court House, and expires July 1, 2008); Davidson: 2012-63 (expires June 30, 2014); Durham: 2013-386, s. 5(a); Forsyth: 1987 (Reg. Sess., 1988), c. 927; 1993, c. 128, s. 1; Franklin: 1993 (Reg. Sess., 1994), c. 757, s. 1; Greene: 1953, c. 718; Guilford: 1987 (Reg. Sess., 1988), c. 1010, s. 2; (As to water treatment and wastewater treatment plant expansion projects) Harnett: 2007-214, s. 1 (expires December 31, 2010); Iredell: (as to animal shelter project) 2008-67, s. 1 (expires July 1, 2010); Johnston: 1995 (Reg. Sess., 1996), c. 611, s. 1; 2008-40 (as to contracts for renovations to the county courthouse); Mecklenburg: 1987, cc. 184, 220, 823; 1989, c. 150, s. 1; 1993 (Reg. Sess., 1994), c. 709, s. 1; 1997-184, s. 1; 2007-333, s. 1, as amended by 2009-149, s. 1, 2010-57, s. 1, and 2011-150, s. 2 (expires June 30, 2015); (As to contracts with Water and Sewer Authority) New Hanover: 2007-135, s. 1 (expires December 31, 2009); Pasquotank: 1979, 2nd Sess., c. 1164; 1989, c. 268, s. 3; Rockingham: 2012-140, s. 1 (expires June 30, 2017); Stokes: 2006-50, s. 1; Surry: 1993 (Reg. Sess., 1994), c.705, s. 1; Union: 1991, c. 393, s. 1; Wake: 2007-333, s. 1, as amended by 2009-149, s. 1, 2010-57, s. 1, and 2011-150, s. 2 (expires June 30, 2015); Wayne: 2011-98, s. 1 (expires December 31, 2014); Wilson: 1991, c. 200; city of Asheville: 2007-333, s. 1, as amended by 2009-149, s. 1, and 2010-57, s. 1 (expires June 30, 2015); city of Bessemer City: 1985 (Reg. Sess., 1986), c. 959; 1981, c. 89; 1987, cc. 151, 329, s. 1; 1991, c. 200; city of Charlotte: 1995, c. 273, s. 1; 2000-26, s. 1; 2000-26, s. 8.87, as added by 2011-180, s. 3 (expires June 30, 2016); 2002-91, s. 1, as amended by 2007-255, s. 1, and as amended by 2008-101; (as to water and wastewater treatment plants) 2007-312, s. 1; city of Clinton: 2013-115, ss. 1, 2 (as to use of design-build method of construction for certain projects awarded before June 30, 2015 involving city-owned facilities); city of Concord: 2014-31, s. 4 (expires June 30, 2021); city of Durham: 1983, c. 458; 1991 (Reg. Sess., 1992), c. 992, s. 1; 2001-350, s. 3; 2011-168, s. 1; city of Fayetteville: 2021-66, s. 1; city of Greensboro: 1987, c. 53, ss. 1, 2; 1987 (Reg. Sess., 1988), c. 1010, s. 2; 1995, c. 218, s. 1; city of Greenville; 1989, c. 18, s. 1; city of Lexington: 1987, c. 21; city of Kannapolis: 2014-31, s. 4 (expires June 30, 2021); city of Kings Mountain: 1985 (Reg. Sess., 1986), c. 959; 1981, c. 89; city of Monroe: 1989, c. 18, s. 1; 2000-35, s. 1; city of Raleigh: 2007-333, s. 1, as amended by 2009-149, s. 1; city of Roanoke Rapids: 2001-245, s. 3; 2005-174, s. 2; city of Rocky Mount; 1989, c. 18, s. 1; city of Shelby: 1987, c. 87; (As to contracts with Water and Sewer Authority) city of Wilmington: 2007-135, s. 1 (expires December 31, 2009); city of Wilson: 1985 (Reg. Sess., 1986), c. 871; 1987 (Reg. Sess., 1988), c. 1108, s. 11; city of Winston-Salem: 1985, c. 632; 1987, c. 575; 1987 (Reg. Sess., 1988), c. 927; town of Apex: 2007-333, s. 1, as amended by 2009-149, s. 1, 2010-57, s. 1, and 2011-150, s. 2 (expires June 30, 2015); town of Blowing Rock: 2006-171, s. 10 (public parking facility); town of Carrboro: 2007-333, s. 1, as amended by 2009-149, s. 1, and 2010-57, s. 1 (expires June 30, 2015); town of Cary: 2007-333, s. 1, as amended by 2009-149, s. 1, 2010-57, s. 1, and 2011-150, s. 2 (expires June 30, 2015); town of Chapel Hill: 2007-333, s. 1, as amended by 2009-149, s. 1, and 2010-57, s. 1 (expires June 30, 2015); town of Clayton: 2007-333, s. 1, as amended by 2009-149, s. 1, 2010-57, s. 1, and 1995, c. 125, s. 1; town of Cornelius: 1971, c. 288, s. 1.4, as added by 2011-180, s. 1, and amended by 2011-326, s. 20 (expires July 1, 2018), and as amended by 2013-352, s. 1 (expires July 1, 2016); town of Fuquay-Varina: 2007-333, s. 1, as amended by 2009-149, s. 1, 2010-57, s. 1, and 2011-150, s. 2 (expires June 30, 2015); town of Garner: 2007-333, s. 1, as amended by 2009-149, s. 1, 2010-57, s. 1, and 2011-150, s. 2 (expires June 30, 2015); town of Holly Springs: 2007-333, s. 1, as amended by 2009-149, s. 1, 2010-57, s. 1, and 2011-150, s. 2 (expires June 30, 2015); town of Knightdale: 2007-333, s. 1, as amended by 2009-149, s. 1, 2010-57, s. 1, and 2011-150, s. 2 (expires June 30, 2015); town of Louisburg: 2007-216, s. 3, as amended by 2009-370, s. 1 (expires January 1, 2011); town of Manteo: 1985 (Reg. Sess., 1986), c. 808; town of Mint Hill: 2014-31, s. 4 (expires June 30, 2021); town of Morrisville: 2007-333, s. 1, as amended by 2009-149, s. 1, 2010-57, s. 1, and 2011-150, s. 2 (expires June 30, 2015); town of Rolesville: 2007-333, s. 1, as amended by 2009-149, s. 1, 2010-57, s. 1, and 2011-150, s. 2 (expires June 30, 2015); town of Southern Shores: 1995, c. 70, s. 1; town of Wake Forest: 2007-333, s. 1, as amended by 2009-149, s. 1, 2010-57, s. 1, and 2011-150, s. 2 (expires June 30, 2015); town of Wendell: 2007-333, s. 1, as amended by 2009-149, s. 1, 2010-57, s. 1, and 2011-150, s. 2 (expires June 30, 2015); town of Yadkinville, 1997-3, s. 1; town of Zebulon: 2007-333, s. 1, as amended by 2009-149, s. 1, 2010-57, s. 1, and 2011-150, s. 2 (expires June 30, 2015); Alamance-Caswell Area Mental Health, Developmental Disabilities and Substance Abuse Authority: 1987, c. 120; Albermarle Hospital Board of Trustees: 1989, c. 468, s. 2; Bladen County Board of Education: 1973, c. 891; Charlotte-Mecklenburg Board of Education: 1981, c. 477; 1999-207, ss. 2, 3, 4; 2001-496, s. 10(c); Forsyth/Stokes Area Mental Health, Developmental Disabilities and Substance Abuse Authority: 1987 (Reg. Sess., 1988), c. 927; Lee Board of Education: 1953, c. 228; Lower Cape Fear Water and Sewer Authority: 2012-60 (expires December 31, 2015); Union County Public Schools Board of Education: 2007-90, s. 1-3 (expires July 1, 2011); University of North Carolina at Chapel Hill: 1985 (Reg. Sess., 1986), c. 865, s. 3; Winston-Salem/Forsyth County Board of Education: 1993, c. 128, s. 1; 2003-269, s. 1.

Editor's Note. - Session Laws 2001-496, s. 14(b), provides: "The State Building Commission shall adopt temporary rules to implement G.S. 143-135.26(10) and G.S. 143-135.26(11) as enacted by Section 11 of this act [s. 11 of Session Laws 2001-496] no later than 60 days following the effective date of Section 11 of this act [s. 11 of Session Laws 2001-496]. The Secretary of Administration shall adopt rules to implement G.S. 143-128.2(f) as enacted by Section 3.1 of this act [s. 3.1 of Session Laws 2001-496] no later than June 30, 2002. A bidder must show compliance with at least five of the 10 efforts, as set forth in G.S. 143-128.2(f) as enacted by Section 3.1 of this act [s. 3.1 of Session Laws 2001-496], until 60 days following the adoption of rules to implement G.S. 143-128.2(f) by the Secretary of Administration as required in this section [s. 14 of Session Laws 2001-491]."

Session Laws 2001-496, s. 14(c), provides: "A city, county, or other public entity, other than the State, may apply verifiable percentage goals enacted prior to the effective date [January 1, 2002] of Section 3.1 of this act [s. 3.1 of Session Laws 2001-491] to building projects undertaken on or after the effective date [January 1, 2002] of Section 3.1 of this act [Session Laws 2001-491]."

Session Laws 2003-435, 1st Ex. Sess., s. 1.2(c), effective December 16, 2003, provides: "Site development funded by money appropriated under this section is not subject to Article 8 of Chapter 143 of the General Statutes (public contracts) or Article 3 of Chapter 143 of the General Statutes (purchases and contracts), except where public funds are expended the provisions of G.S. 143-48 and G.S. 143-128.2 shall apply. Actions involving expenditures of public moneys or use of public lands for projects and programs involved in site development funded by money appropriated under this section are exempt from the requirements of Article 1 of Chapter 113A of the General Statutes. This exemption does not apply to an ordinance adopted under G.S. 113A-8."

Opinions of Attorney General

Contracts Under Federal Law. - Where an airport authority chooses to let contracts under federal law relying upon G.S. 63-54(c), pertaining to federal aid for airports and related facilities, then the requirements of this section would not apply. See opinion of Attorney General to William O. Cooke, Cooke & Cooke, L.L.P., 2002 N.C.A.G. 32 (11/18/02).

§ 143-128.3. Minority business participation administration.

1. All public entities subject to G.S. 143-128.2 shall report to the Department of Administration, Office of Historically Underutilized Business, the following with respect to each building project:
   1. The verifiable percentage goal.
   2. The type and total dollar value of the project, minority business utilization by minority business category, trade, total dollar value of contracts awarded to each minority group for each project, the applicable good faith effort guidelines or rules used to recruit minority business participation, and good faith documentation accepted by the public entity from the successful bidder.
   3. The utilization of minority businesses under the various construction methods under G.S. 143-128(a1).
2. A public entity that has been notified by the Secretary of its failure to comply with G.S. 143-128.2 on a project shall develop a plan of compliance that addresses the deficiencies identified by the Secretary. The corrective plan shall apply to the current project or to subsequent projects under G.S. 143-128, as appropriate, provided that the plan must be implemented, at a minimum, on the current project to the extent feasible. If the public entity, after notification from the Secretary, fails to file a corrective plan, or if the public entity does not implement the corrective plan in accordance with its terms, the Secretary shall require one or both of the following:
   1. That the public entity consult with the Department of Administration, Office of Historically Underutilized Businesses on the development of a new corrective plan, subject to the approval of the Department and the Attorney General. The public entity may designate a representative to appear on its behalf, provided that the representative has managerial responsibility for the construction project.
   2. That the public entity not bid another contract under G.S. 143-128 without prior review by the Department and the Attorney General of a good faith compliance plan developed pursuant to subdivision (1) of this subsection. The public entity shall be subject to the review and approval of its good faith compliance plan under this subdivision with respect to any projects bid pursuant to G.S. 143-128 during a period of time determined by the Secretary, not to exceed one year.
3. The Secretary shall study and recommend to the General Assembly and other State agencies ways to improve the effectiveness and efficiency of the State capital facilities development, minority business participation program and good faith efforts in utilizing minority businesses as set forth in G.S. 143-128.2, and other appropriate good faith efforts that may result in the increased utilization of minority businesses.
4. The Secretary shall appoint an advisory board to develop recommendations to improve the recruitment and utilization of minority businesses. The Secretary, with the input of its advisory board, shall review the State's programs for promoting the recruitment and utilization of minority businesses involved in State capital projects and shall recommend to the General Assembly, the State Construction Office, The University of North Carolina, and the community colleges system changes in the terms and conditions of State laws, rules, and policies that will enhance opportunities for utilization of minority businesses on these projects. The Secretary shall provide guidance to these agencies on identifying types of projects likely to attract increased participation by minority businesses and breaking down or combining elements of work into economically feasible units to facilitate minority business participation.
5. The Secretary shall adopt rules for State entities, The University of North Carolina, and community colleges and shall adopt guidelines for local government units to implement the provisions of G.S. 143-128.2.
6. Repealed by Session Laws 2007-392, s. 3, effective October 1, 2007.
7. The Secretary shall provide the following information to the Attorney General:
   1. Failure by a public entity to report data to the Secretary in accordance with this section.
   2. Upon the request of the Attorney General, any data or other information collected under this section.
   3. False statements knowingly provided in any affidavit or documentation under G.S. 143-128.2 to the State or other public entity. Public entities shall provide to the Secretary information concerning any false information knowingly provided to the public entity pursuant to G.S. 143-128.2.
8. The Secretary shall report findings and recommendations as required under this section to the Joint Legislative Committee on Governmental Operations annually on or before June 1, beginning June 1, 2002.

The reports shall be in the format and contain the data prescribed by the Secretary of Administration. The University of North Carolina and the State Board of Community Colleges shall report quarterly and all other public entities shall report semiannually. The Secretary of the Department of Administration shall make reports every six months to the Joint Legislative Committee on Governmental Operations on information reported pursuant to this subsection.

A public entity aggrieved by the decision of the Secretary may file a contested case proceeding under Chapter 150B of the General Statutes.

History

(2001-496, s. 3.6; 2005-270, s. 2; 2007-392, s. 3.)

Local Modification. - City of Fayetteville: 2021-66, s. 1.

Effect of Amendments. - Session Laws 2005-270, s. 2, effective August 12, 2005, added subsection (e1).

Session Laws 2007-392, s. 3, effective October 1, 2007, deleted subsection (e1), relating to rules and regulations for the certification of minority business contractors, as historically underutilized businesses, and the creation and maintenance of a database of those businesses.

Opinions of Attorney General

Contracts Under Federal Law. - Where an airport authority exercises its discretionary authority under G.S. 63-54(c), pertaining to federal aid for airports and related facilities, to let federally funded contracts under federal law, it is not subject to the reporting requirements prescribed by subsection (a) of this section. See opinion of Attorney General to William O. Cooke, Cooke & Cooke, L.L.P., 2002 N.C.A.G. 32 (11/18/02).

§ 143-128.4. Historically underutilized business defined; statewide uniform certification.

1. As used in this Chapter, the term "historically underutilized business" means a business that meets all of the following conditions:
   1. At least fifty-one percent (51%) of the business is owned by one or more persons who are members of at least one of the groups set forth in subsection (b) of this section, or in the case of a corporation, at least fifty-one percent (51%) of the stock is owned by one or more persons who are members of at least one of the groups set forth in subsection (b) of this section.
   2. The management and daily business operations are controlled by one or more owners of the business who are members of at least one of the groups set forth in subsection (b) of this section.
2. As used in this Chapter, the term "minority business" means a historically underutilized business.
3. To qualify as a historically underutilized business under this section, a business must be owned and controlled as set forth in subsection (a) of this section by one or more citizens or lawful permanent residents of the United States who are members of one or more of the following groups:
   1. Black. - A person having origins in any of the black racial groups of Africa.
   2. Hispanic. - A person of Spanish or Portuguese culture having origins in Mexico, South or Central America, or the Caribbean islands, regardless of race.
   3. Asian American. - A person having origins in any of the original peoples of the Far East, Southeast Asia, Asia, Indian continent, or Pacific islands.
   4. American Indian. - A person having origins in any of the original Indian peoples of North America.
   5. Female.
   6. Disabled. - A person with a disability as defined in G.S. 168-1 or G.S. 168A-3.
   7. Disadvantaged. - A person who is socially and economically disadvantaged as defined in 15 U.S.C. § 637.
4. In addition to the powers and duties provided in G.S. 143-49, the Secretary of Administration shall have the power, authority, and duty to:
   1. Develop and administer a statewide uniform program for: (i) the certification of a historically underutilized business, as defined in this section, for use by State departments, agencies, and institutions, and political subdivisions of the State; and (ii) the creation and maintenance of a database of the businesses certified as historically underutilized businesses.
   2. Adopt rules and procedures for the statewide uniform certification of historically underutilized businesses.
   3. Provide for the certification of all businesses designated as historically underutilized businesses to be used by State departments, agencies, and institutions, and political subdivisions of the State.
5. The Secretary of Administration shall seek input from State departments, agencies, and institutions, political subdivisions of the State, and any other entity deemed appropriate to determine the qualifications and criteria for statewide uniform certification of historically underutilized businesses.
6. Only businesses certified in accordance with this section shall be considered by State departments, agencies, and institutions, and political subdivisions of the State as historically underutilized businesses for minority business participation purposes under this Chapter.

History

(2005-270, s. 3; 2007-392, s. 4; 2009-243, s. 3.)

Editor's Note. - Session Laws 2007-392, s. 5, provides: "Except as otherwise provided in this section, this act [section 4 of which added "statewide uniform certification" at the end of the section heading and added subsections (a1) and (c) through (e)] becomes effective October 1, 2007. The Secretary of Administration shall develop a statewide uniform program and criteria for statewide uniform certification of historically underutilized businesses as provided in G.S. 143-48.4(a)(1) and (2), as enacted by Section 2 of this act, and G.S. 143-128.4(c)(1) and (2), as enacted by Section 4 of this act, no later than March 31, 2008. G.S. 143-48.4(c), as enacted by Section 2 of this act, and G.S. 143-128.4(e), as enacted by Section 4 of this act, become effective July 1, 2009."

Effect of Amendments. - Session Laws 2009-243, s. 3, effective June 30, 2009, rewrote subsection (e).

§ 143-129. Procedure for letting of public contracts.

1. Bidding Required. - No construction or repair work requiring the estimated expenditure of public money in an amount equal to or more than five hundred thousand dollars ($500,000) or purchase of apparatus, supplies, materials, or equipment requiring an estimated expenditure of public money in an amount equal to or more than ninety thousand dollars ($90,000) may be performed, nor may any contract be awarded therefor, by any board or governing body of the State, or of any institution of the State government, or of any political subdivision of the State, unless the provisions of this section are complied with; provided that The University of North Carolina and its constituent institutions may award contracts for construction or repair work that requires an estimated expenditure of less than five hundred thousand dollars ($500,000) without complying with the provisions of this section.
2. 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.
3. Contract Execution and Security. - All contracts to which this section applies shall be executed in writing. The board or governing body shall require the person to whom the award of a contract for construction or repair work is made to furnish bond as required by Article 3 of Chapter 44A; or require a deposit of money, certified check or government securities for the full amount of said contract to secure the faithful performance of the terms of said contract and the payment of all sums due for labor and materials in a manner consistent with Article 3 of Chapter 44A; and the contract shall not be altered except by written agreement of the contractor and the board or governing body. The surety bond or deposit required herein shall be deposited with the board or governing body for which the work is to be performed. When a deposit, other than a surety bond, is made with the board or governing body, the board or governing body assumes all the liabilities, obligations and duties of a surety as provided in Article 3 of Chapter 44A to the extent of said deposit.
4. Use of Unemployment Relief Labor. - Nothing in this section shall operate so as to require any public agency to enter into a contract which will prevent the use of unemployment relief labor paid for in whole or in part by appropriations or funds furnished by the State or federal government.
5. Exceptions. - The requirements of this Article do not apply to:
   1. The purchase, lease, or other acquisition of any apparatus, supplies, materials, or equipment from: (i) the United States of America or any agency thereof; or (ii) any other government unit or agency thereof within the United States. The Secretary of Administration or the governing board of any political subdivision of the State may designate any officer or employee of the State or political subdivision to enter a bid or bids in its behalf at any sale of apparatus, supplies, materials, equipment, or other property owned by: (i) the United States of America or any agency thereof; or (ii) any other governmental unit or agency thereof within the United States. The Secretary of Administration or the governing board of any political subdivision of the State may authorize the officer or employee to make any partial or down payment or payment in full that may be required by regulations of the governmental unit or agency disposing of the property.
   2. Cases of special emergency involving the health and safety of the people or their property.
   3. Purchases made through a competitive bidding group purchasing program, which is a formally organized program that offers competitively obtained purchasing services at discount prices to two or more public agencies.
   4. Construction or repair work undertaken during the progress of a construction or repair project initially begun pursuant to this section.
   5. Purchase of gasoline, diesel fuel, alcohol fuel, motor oil, fuel oil, or natural gas. These purchases are subject to G.S. 143-131.
   6. Purchases of apparatus, supplies, materials, or equipment when: (i) performance or price competition for a product are not available; (ii) a needed product is available from only one source of supply; or (iii) standardization or compatibility is the overriding consideration. Notwithstanding any other provision of this section, the governing board of a political subdivision of the State shall approve the purchases listed in the preceding sentence prior to the award of the contract.
   7. Purchases of information technology through contracts established by the Department of Information Technology as provided in Article 15 of Chapter 143B of the General Statutes.
   8. Guaranteed energy savings contracts, which are governed by Article 3B of Chapter 143 of the General Statutes.
   9. Purchases from contracts established by the State or any agency of the State, if the contractor is willing to extend to a political subdivision of the State the same or more favorable prices, terms, and conditions as established in the State contract.
   10. Purchases of apparatus, supplies, materials, or equipment from contracts established by the United States of America or any federal agency, if the contractor is willing to extend to a political subdivision of the State the same or more favorable prices, terms, and conditions as established in the federal contract.
   11. Purchase of used apparatus, supplies, materials, or equipment. For purposes of this subdivision, remanufactured, refabricated or demo apparatus, supplies, materials, or equipment are not included in the exception. A demo item is one that is used for demonstration and is sold by the manufacturer or retailer at a discount.
   12. Contracts by a public entity with a construction manager at risk executed pursuant to G.S. 143-128.1.
   13. Build-to-suit capital leases with a private developer under G.S. 115C-532.
6. Repealed by Session Laws 2001-328, s. 1, effective August 2, 2001.
7. Waiver of Bidding for Previously Bid Contracts. - When the governing board of any political subdivision of the State, or the person to whom authority has been delegated under subsection (a) of this section, determines that it is in the best interest of the unit, the requirements of this section may be waived for the purchase of apparatus, supplies, materials, or equipment from any person or entity that has, within the previous 12 months, after having completed a public, formal bid process substantially similar to that required by this Article, contracted to furnish the apparatus, supplies, materials, or equipment to:
   1. The United States of America or any federal agency;
   2. The State of North Carolina or any agency or political subdivision of the State; or
   3. Any other state or any agency or political subdivision of that state, if the person or entity is willing to furnish the items at the same or more favorable prices, terms, and conditions as those provided under the contract with the other unit or agency. Notwithstanding any other provision of this section, any purchase made under this subsection shall be approved by the governing body of the purchasing political subdivision of the State at a regularly scheduled meeting of the governing body no fewer than 10 days after publication of notice that a waiver of the bid procedure will be considered in order to contract with a qualified supplier pursuant to this section. Notice may be published in a newspaper having general circulation in the political subdivision or by electronic means, or both. A decision to publish notice solely by electronic means for a particular contract or for all contracts under this subsection shall be approved by the governing board of the political subdivision. Rules issued by the Secretary of Administration pursuant to G.S. 143-49(6) shall apply with respect to participation in State term contracts.
8. Transportation Authority Purchases. - Notwithstanding any other provision of this section, any board or governing body of any regional public transportation authority, hereafter referred to as a "RPTA," created pursuant to Article 26 of Chapter 160A of the General Statutes, or a regional transportation authority, hereafter referred to as a "RTA," created pursuant to Article 27 of Chapter 160A of the General Statutes, may approve the entering into of any contract for the purchase, lease, or other acquisition of any apparatus, supplies, materials, or equipment without competitive bidding and without meeting the requirements of subsection (b) of this section if the following procurement by competitive proposal (Request for Proposal) method is followed.
   1. Requests for proposals shall be publicized. All evaluation factors shall be identified along with their relative importance.
   2. Proposals shall be solicited from an adequate number of qualified sources.
   3. RPTAs or RTAs shall have a method in place for conducting technical evaluations of proposals received and selecting awardees, with the goal of promoting fairness and competition without requiring strict adherence to specifications or price in determining the most advantageous proposal.
   4. The award may be based upon initial proposals without further discussion or negotiation or, in the discretion of the evaluators, discussions or negotiations may be conducted either with all offerors or with those offerors determined to be within the competitive range, and one or more revised proposals or a best and final offer may be requested of all remaining offerors. The details and deficiencies of an offeror's proposal may not be disclosed to other offerors during any period of negotiation or discussion.
   5. The award shall be made to the responsible firm whose proposal is most advantageous to the RPTA's or the RTA's program with price and other factors considered.
9. Procedure for Letting of Public Contracts. - The Department of Transportation ("DOT") and the Department of Administration ("DOA") shall monitor all projects in those agencies that are let without a performance or payment bond to determine the number of defaults on those projects, the cost to complete each defaulted project, and each project's contract price. Beginning March 1, 2011, and annually thereafter, DOT and DOA shall report this information to the Joint Legislative Committee on Governmental Operations.
10. [Use of E-Verify Required.  - ] No contract subject to this section may be awarded by any board or governing body of the State, institution of State government, or any political subdivision of the State unless the contractor and the contractor's subcontractors comply with the requirements of Article 2 of Chapter 64 of the General Statutes.

For purchases of apparatus, supplies, materials, or equipment, the governing body of any political subdivision of the State may, subject to any restriction as to dollar amount, or other conditions that the governing body elects to impose, delegate to the manager, school superintendent, chief purchasing official, or other employee the authority to award contracts, reject bids, or readvertise to receive bids on behalf of the unit. Any person to whom authority is delegated under this subsection shall comply with the requirements of this Article that would otherwise apply to the governing body.

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 award the contract to the lowest responsible 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 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.

The owning agency or the Department of Administration, in contracts involving a State agency, and the owning agency or the governing board, in contracts involving a political subdivision of the State, may reject the bonds of any surety company against which there is pending any unsettled claim or complaint made by a State agency or the owning agency or governing board of any political subdivision of the State arising out of any contract under which State funds, in contracts with the State, or funds of political subdivisions of the State, in contracts with such political subdivision, were expended, provided such claim or complaint has been pending more than 180 days.

In the case of purchases by hospitals, in addition to the other exceptions in this subsection, the provisions of this Article shall not apply when: (i) a particular medical item or prosthetic appliance is needed; (ii) a particular product is ordered by an attending physician for his patients; (iii) additional products are needed to complete an ongoing job or task; (iv) products are purchased for "over-the-counter" resale; (v) a particular product is needed or desired for experimental, developmental, or research work; or (vi) equipment is already installed, connected, and in service under a lease or other agreement and the governing body of the hospital determines that the equipment should be purchased. The governing body of a hospital shall keep a record of all purchases made pursuant to this subdivision. These records are subject to public inspection.

The competitive proposal method of procurement is normally conducted with more than one source submitting an offer or proposal. Either a fixed price or cost reimbursement type contract is awarded. This method of procurement is generally used when conditions are not appropriate for the use of sealed bids. If this procurement method is used, all of the following requirements apply:

The contents of the proposals shall not be public records until 14 days before the award of the contract.

The board or governing body of the RPTA or the RTA shall, at the regularly scheduled meeting, by formal motion make findings of fact that the procurement by competitive proposal (Request for Proposals) method of procuring the particular apparatus, supplies, materials, or equipment is the most appropriate acquisition method prior to the issuance of the requests for proposals and shall by formal motion certify that the requirements of this subsection have been followed before approving the contract.

Nothing in this subsection subjects a procurement by competitive proposal under this subsection to G.S. 143-49, 143-52, or 143-53.

RPTAs and RTAs may adopt regulations to implement this subsection.

History

(1931, c. 338, s. 1; 1933, c. 50; c. 400, s. 1; 1937, c. 355; 1945, c. 144; 1949, c. 257; 1951, c. 1104, ss. 1, 2; 1953, c. 1268; 1955, c. 1049; 1957, c. 269, s. 3; c. 391; c. 862, ss. 1-4; 1959, c. 392, s. 1; c. 910, s. 1; 1961, c. 1226; 1965, c. 841, s. 2; 1967, c. 860; 1971, c. 847; 1973, c. 1194, s. 2; 1975, c. 879, s. 46; 1977, c. 619, ss. 1, 2; 1979, c. 182, s. 1; 1979, 2nd Sess., c. 1081; 1981, c. 346, s. 1; c. 754, s. 1; 1985, c. 145, ss. 1, 2; 1987, c. 590; 1987 (Reg. Sess., 1988), c. 1108, ss. 7, 8; 1989, c. 350; 1993, c. 539, s. 1007; 1994, Ex. Sess., c. 24, s. 14(c); 1995, c. 367, s. 6; 1997-174, ss. 1-4; 1998-185, s. 1; 1998-217, s. 16; 2001-328, s. 1; 2001-487, s. 88; 2001-496, ss. 4, 5; 2005-227, s. 1; 2006-232, s. 2; 2007-94, s. 1; 2007-322, s. 4; 2007-446, s. 6; 2010-148, s. 1.2; 2011-234, s. 1; 2013-418, s. 2(c); 2015-241, s. 7A.4(s); 2017-81, s. 1; 2021-80, s. 2.8.)

Local Modification. - (As to certain economic development projects) Buncombe: 2013-31, s. 1 (expires June 30, 2016); 2013-40, s. 1 (expires June 30, 2016); (As to school building contracts) Cabarrus: 2009-430, s. 2 (expires June 30, 2014); Catawba: 2010-63, s. 1; Cherokee: 2007-48, s. 1; Clay: 2006-94, s. 1; 2012-32, s. 1; 2016-36, s. 1 (as to renovation and restoration of Clay County's old courthouse building as multipurpose facility, and expires June 30, 2018); Currituck: 1993 (Reg. Sess., 1994), c. 668, s. 1; Dare: 1999-40, s. 1; 2003-47, s. 1 (as to design and construction of administration building and renovation of Old Dare Court House, and expires July 1, 2008); Davidson: 2012-63 (expires June 30, 2014); Durham: 2013-386, s. 5(a); Forsyth: 1987 (Reg. Sess., 1988), c. 927; 1993, c. 128, s. 1; Franklin: 1993 (Reg. Sess., 1994), c. 757, s. 1; Greene: 1953, c. 718; Guilford: 1987 (Reg. Sess., 1988), c. 1010, s. 2; (As to water treatment and wastewater treatment plant expansion projects) Harnett: 2007-214, s. 1 (expires December 31, 2010); Iredell: (as to animal shelter project) 2008-67, s. 1 (expires July 1, 2010); Johnston: 1995 (Reg. Sess., 1996), c. 611, s. 1; 2008-40 (as to contracts for renovations to the county courthouse); Mecklenburg: 1987, cc. 184, 220, 823; 1989, c. 150, s. 1; 1993 (Reg. Sess., 1994), c. 709, s. 1; 1997-184, s. 1; 2007-333, s. 1, as amended by 2009-149, s. 1, 2010-57, s. 1, and 2011-150, s. 2 (expires June 30, 2015); (As to contracts with Water and Sewer Authority) New Hanover: 2007-135, s. 1 (expires December 31, 2009); Pasquotank: 1979, 2nd Sess., c. 1164; 1989, c. 268, s. 3; Rockingham: 2012-140, s. 1 (expires June 30, 2017); Stokes: 2006-50, s. 1; Surry: 1993 (Reg. Sess., 1994), c.705, s. 1; Union: 1991, c. 393, s. 1; Wake: 2007-333, s. 1, as amended by 2009-149, s. 1, 2010-57, s. 1, and 2011-150, s. 2 (expires June 30, 2015); Wayne: 2011-98, s. 1 (expires December 31, 2014); Wilson: 1991, c. 200; city of Asheville: 2007-333, s. 1, as amended by 2009-149, s. 1, and 2010-57, s. 1 (expires June 30, 2015); city of Bessemer City: 1985 (Reg. Sess., 1986), c. 959; 1981, c. 89; 1987, cc. 151, 329, s. 1; 1991, c. 200; city of Charlotte: 1995, c. 273, s. 1; 2000-26, s. 1; 2000-26, s. 8.87, as added by 2011-180, s. 3 (expires June 30, 2016); 2002-91, s. 1, as amended by 2007-255, s. 1, and as amended by 2008-101; (as to water and wastewater treatment plants) 2007-312, s. 1; city of Clinton: 2013-115, ss. 1, 2 (as to use of design-build method of construction for certain projects awarded before June 30, 2015 involving city-owned facilities); city of Concord: 2014-31, s. 4 (expires June 30, 2021); city of Durham: 1983, c. 458; 1991 (Reg. Sess., 1992), c. 992, s. 1; 2001-350, s. 3; 2011-168, s. 1; city of Fayetteville: 2017-81, s. 1; city of Greensboro: 1987, c. 53, ss. 1, 2; 1987 (Reg. Sess., 1988), c. 1010, s. 2; 1995, c. 218, s. 1; city of Greenville; 1989, c. 18, s. 1; city of Lexington: 1987, c. 21; city of Kannapolis: 2014-31, s. 4 (expires June 30, 2021); city of Kings Mountain: 1985 (Reg. Sess., 1986), c. 959; 1981, c. 89; city of Monroe: 1989, c. 18, s. 1; 2000-35, s. 1; city of Raleigh: 2007-333, s. 1, as amended by 2009-149, s. 1; city of Roanoke Rapids: 2001-245, s. 3; 2005-174, s. 2; city of Rocky Mount; 1989, c. 18, s. 1; city of Shelby: 1987, c. 87; (As to contracts with Water and Sewer Authority) city of Wilmington: 2007-135, s. 1 (expires December 31, 2009); city of Wilson: 1985 (Reg. Sess., 1986), c. 871; 1987 (Reg. Sess., 1988), c. 1108, s. 11; city of Winston-Salem: 1985, c. 632; 1987, c. 575; 1987 (Reg. Sess., 1988), c. 927; town of Apex: 2007-333, s. 1, as amended by 2009-149, s. 1, 2010-57, s. 1, and 2011-150, s. 2 (expires June 30, 2015); town of Blowing Rock: 2006-171, s. 10 (public parking facility); town of Carrboro: 2007-333, s. 1, as amended by 2009-149, s. 1, and 2010-57, s. 1 (expires June 30, 2015); town of Cary: 2007-333, s. 1, as amended by 2009-149, s. 1, 2010-57, s. 1, and 2011-150, s. 2 (expires June 30, 2015); town of Chapel Hill: 2007-333, s. 1, as amended by 2009-149, s. 1, and 2010-57, s. 1 (expires June 30, 2015); town of Clayton: 2007-333, s. 1, as amended by 2009-149, s. 1, 2010-57, s. 1, and 1995, c. 125, s. 1; town of Cornelius: 1971, c. 288, s. 1.4, as added by 2011-180, s. 1, and amended by 2011-326, s. 20 (expires July 1, 2018), and as amended by 2013-352, s. 1 (expires July 1, 2016); town of Fuquay-Varina: 2007-333, s. 1, as amended by 2009-149, s. 1, 2010-57, s. 1, and 2011-150, s. 2 (expires June 30, 2015); town of Garner: 2007-333, s. 1, as amended by 2009-149, s. 1, 2010-57, s. 1, and 2011-150, s. 2 (expires June 30, 2015); town of Holly Springs: 2007-333, s. 1, as amended by 2009-149, s. 1, 2010-57, s. 1, and 2011-150, s. 2 (expires June 30, 2015); town of Knightdale: 2007-333, s. 1, as amended by 2009-149, s. 1, 2010-57, s. 1, and 2011-150, s. 2 (expires June 30, 2015); town of Louisburg: 2007-216, s. 3, as amended by 2009-370, s. 1 (expires January 1, 2011); town of Manteo: 1985 (Reg. Sess., 1986), c. 808; town of Mint Hill: 2014-31, s. 4 (expires June 30, 2021); town of Morrisville: 2007-333, s. 1, as amended by 2009-149, s. 1, 2010-57, s. 1, and 2011-150, s. 2 (expires June 30, 2015); town of Rolesville: 2007-333, s. 1, as amended by 2009-149, s. 1, 2010-57, s. 1, and 2011-150, s. 2 (expires June 30, 2015); town of Southern Shores: 1995, c. 70, s. 1; town of Wake Forest: 2007-333, s. 1, as amended by 2009-149, s. 1, 2010-57, s. 1, and 2011-150, s. 2 (expires June 30, 2015); town of Wendell: 2007-333, s. 1, as amended by 2009-149, s. 1, 2010-57, s. 1, and 2011-150, s. 2 (expires June 30, 2015); town of Yadkinville, 1997-3, s. 1; town of Zebulon: 2007-333, s. 1, as amended by 2009-149, s. 1, 2010-57, s. 1, and 2011-150, s. 2 (expires June 30, 2015); Alamance-Caswell Area Mental Health, Developmental Disabilities and Substance Abuse Authority: 1987, c. 120; Albermarle Hospital Board of Trustees: 1989, c. 468, s. 2; Bladen County Board of Education: 1973, c. 891; Charlotte-Mecklenburg Board of Education: 1981, c. 477; 1999-207, ss. 2, 3, 4; 2001-496, s. 10(c); Forsyth/Stokes Area Mental Health, Developmental Disabilities and Substance Abuse Authority: 1987 (Reg. Sess., 1988), c. 927; Lee Board of Education: 1953, c. 228; Lower Cape Fear Water and Sewer Authority: 2012-60 (expires December 31, 2015); Union County Public Schools Board of Education: 2007-90, s. 1-3 (expires July 1, 2011); University of North Carolina at Chapel Hill: 1985 (Reg. Sess., 1986), c. 865, s. 3; Winston-Salem/Forsyth County Board of Education: 1993, c. 128, s. 1; 2003-269, s. 1.

Cross References. - As to legislation regarding construction of juvenile facilities, see the editor's note under G.S. 7B-1500.

For bond requirements on construction contracts, see G.S. 44A-26(a).

As to exception for school food services, see G.S. 115C-264.

Editor's Note. - G.S. 115C-532, referred to in subdivision (e)(12), was repealed by Session Laws 2006-232, s. 3, as amended by Session Laws 2011-234, s. 1, effective July 1, 2015.

The bracketed subsection heading in subsection (j) was inserted at the direction of the Revisor of Statutes.

Session Laws 1959, c. 910, which rewrote the last two paragraphs of this section, provides: "Nothing in this act shall be construed to authorize the Division of Purchase and Contract of the Department of Administration to make any purchases for or on behalf of any county, city or town government in this State or any other political subdivision.

"The powers granted herein are in addition to and not in substitution for existing powers granted by general laws or special acts to cities and towns."

As to the exemption of the Office of State Budget and Management from the requirements of G.S. 143-135.26(1), 143-128, 143-129, 143-131, 143-132, 143-134, 143-135.26, 143-64.10 through 143-64.13, 113A-1 through 113A-10, 113A-50 through 113A-66, 133-1.1(b), and 133-1.1(g) and rules implementing those statutes for the purpose of construction of prison facilities, see Session Laws 1989, c. 754, s. 28(a).

As to exemption of the Office of State Budget and Management from the requirements of this section in the administration and implementation of the Prison Facilities Legislative Bond Act of 1990, see Session Laws 1989 (Reg. Sess., 1990), c. 933, s. 6(4).

As to the exemption of the Office of State Budget and Management (now the Office of State Budget, Planning, and Management) from the requirements of this section in providing prison facilities under the provisions of the State Prison and Youth Services Facilities Bond Act, see Session Laws 1989 (Reg. Sess., 1990), c. 935, s. 6(a)(4).

As to exemption of the Office of Management and Budget from the requirements of this section with respect to facilities authorized for the Department of Correction, see Session Laws 1991, c. 689, s. 239(f), as amended by Session Laws 1991 (Reg. Sess., 1992), c. 1044, s. 41(b), quoted under G.S. 143-64.10.

As to exemption of the Department of Transportation from the provisions of this section for the purpose of entering into contracts with respect to the development of a "Congestion Avoidance and Reduction for Autos and Trucks (CARAT)" system of traffic management for the greater Charlotte-Mecklenburg urban areas, see Session Laws 1993, c. 321, s. 162, Session Laws 1995, c. 324, s. 18.14, and Session Laws 1997-443, s. 32.11.

As to the exemption of the Office of State Construction of the Department of Administration from the requirements of this section to the extent necessary to expedite delivery of certain prison facilities, see Session Laws 1994, Extra Session, c. 24, s. 67.

Session Laws 1993, c. 550, s. 6, effective July 1, 1993, provides that if the Secretary of Administration, after consultation with the Secretary of Correction, finds that the delivery of state prison and youth services facilities authorized to be constructed under that act must be expedited for good cause, the Office of State Construction of the Department of Administration may use alternative delivery systems and shall be exempt from several statutes, including this section, and rules implementing those statutes to the extent necessary to expedite delivery. Section 6 also sets out the provisions governing the exercise of the exemptions allowable and other relevant provisions.

Session Laws 1995, c. 507, s. 27.10, provides that if the construction of prison facilities in Avery and Mitchell Counties must be expedited for good cause, as determined by the Secretary of Administration and Secretary of Correction, the Office of State Construction of the Department of Administration shall be exempt from the following statutes and rules to the extent necessary to expedite delivery: G.S. 143-135.26, 143-128, 143-129, 143-131, 143-132, 143-134, 113A-1 through 113A-10, 113A-50 through 113A-66, 133-1.1(g), and 143-408.1 through 143-408.7.

Session Laws 1997-174, s. 8, provides: "This act raises the threshold amount in G.S. 143-129 and G.S. 160A-266. If any local act provides a threshold amount for the subjects addressed in these statutes that is less than the amount provided in this act, this act prevails to the extent of that conflict."

As to exemption of the Office of State Construction of the Department of Administration from this section and rules implementing this section, to the extent necessary to expedite delivery of juvenile facilities, see Session Laws 1998-202, s. 35(a), quoted under G.S. 143-128.

Session Laws 2006-232, s. 3, as amended by Session Laws 2011-234, s. 1, makes subdivision (e)(12) of this section effective August 12, 2006, and repealed effective July 1, 2015.

Session Laws 2007-322, which, in s. 4, added the proviso at the end of the first paragraph of subsection (a), in s. 13, provides: "This act is effective when it becomes law [July 30, 2007]. Sections 1 through 4 of this act apply to construction projects for which bids or proposals are solicited on or after that date. Section 5 of this act applies to construction or repair work commenced on or after that date."

This section, as amended by Session Laws 2007-446, s. 6, effective August 23, 2007, which substituted "five hundred thousand dollars ($500,000)" for "three hundred thousand dollars ($300,000)," is applicable to projects that are funded on or after July 1, 2007.

Session Laws 2009-451, s. 9.14(b), provides: "With respect to the demonstration wind turbines and necessary support facilities authorized by subsection (a) of this section, the facilities authorized under this act shall be constructed in accordance with the provisions of general law applicable to the construction of State facilities, except that the State Property Office shall expedite and grant all easements and use agreements required for construction of the facilities without payment of any fee, royalty, or other cost. Notwithstanding any other provision of law, construction of the facilities authorized by this section shall be exempt from the following statutes and rules implementing those statutes: G.S. 143-48 through 143-64, 143-128, 143-129, 143-132, 113A-1 through 113A-10, 113A-50 through 113A-66, and 113A-116 through 113A-128. If Senate Bill 1068, 2009 Regular Session, becomes law, the provisions of Part 12 of Article 21 of Chapter 143 of the General Statutes as enacted by that act shall not apply to the facilities authorized by this section. With respect to any other environmental permits required for construction of the facilities, the Department of Environment and Natural Resources is directed to expedite permitting of the project to the extent allowed by law and shall waive any application fees that would be otherwise applicable to applications for permits required for the facilities and, where possible under applicable law, issue all permits within 40 days of receipt of a complete application." Senate Bill 1068, 2009 Regular Session, did not become law.

Session Laws 2009-451, s. 1.2, provides: "This act shall be known as the 'Current Operations and Capital Improvements Appropriations Act of 2009'."

Session Laws 2009-451, s. 28.3, provides: "Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2009-2011 fiscal biennium, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2009-2011 fiscal biennium."

Session Laws 2009-451, s. 28.5, is a severability clause.

Session Laws 2010-31, s. 9.10(a) and (b), provides: "(a) The General Assembly finds that strengthening research and development efforts on renewable energy sources is critical to North Carolina's environment and economy, and that recent events resulting from the British Petroleum oil spill amplify the need for North Carolina's innovators and scientists to enhance their efforts to develop sustainable energy sources and technologies that do not threaten the health and well-being of the State's waters, sensitive lands, and residents. In order to provide opportunities for research into tidal, wave, and other ocean-based sources of alternative energy, the University of North Carolina Coastal Studies Institute shall form a consortium with the Colleges of Engineering at North Carolina State University, North Carolina Agricultural and Technical State University, and the University of North Carolina at Charlotte to study the capture of energy from ocean waves. The Coastal Studies Institute shall be designated the lead agency in coordinating these efforts. Funding appropriated by this act shall be used by university scientists to conceptualize, design, construct, operate, and market new and innovative technologies designed to harness and maximize the energy of the ocean in order to provide substantial power generation for the State. Funding may be used to leverage federal or private research funding for this purpose, but may not be used to purchase and utilize technology that has already been developed by others unless that technology is a critical component to North Carolina's research efforts. Wave energy technologies developed and used for this research may be attached to or staged from an existing State-owned structure located in the ocean waters of the State, and data generated by these technologies shall be available at this structure for public education and awareness. It is the intent of the General Assembly that North Carolina become the focal point for marine-based ocean research collaborations involving the nation's public and private universities.

"(b) With respect to the demonstration wave energy facility and necessary support facilities authorized by subsection (a) of this section, the facilities authorized under this act shall be constructed in accordance with the provisions of general law applicable to the construction of State facilities, except that the State Property Office shall expedite and grant all easements and use agreements required for construction of the facilities without payment of any fee, royalty, or other cost. Notwithstanding any other provision of law, construction of the facilities authorized by this section shall be exempt from the following statutes and rules implementing those statutes: G.S. 143-48 through 143-64, 143-128, 143-129, 143-132, 113A-1 through 113A-10, 113A-50 through 113A-66, and 113A-116 through 113A-128. With respect to any other environmental permits required for construction of the facilities, the Department of Environment and Natural Resources is directed to expedite permitting of the project to the extent allowed by law and shall waive any application fees that would be otherwise applicable to applications for permits required for the facilities and, where possible under applicable law, issue all permits within 40 days of receipt of a complete application."

Session Laws 2010-31, s. 1.1, provides: "This act shall be known as the 'Current Operations and Capital Improvements Appropriations Act of 2010'."

Session Laws 2010-31, s. 32.3, provides: "Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2010-2011 fiscal year, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2010-2011 fiscal year."

Session Laws 2010-31, s. 32.6, is a severability clause.

Session Laws, 2010-148, s. 1.1, provides: "The Department of Administration, State Building Commission, is directed to simplify the process of prequalification for publicly funded construction projects and to report to the Joint Legislative Commission on Governmental Operations on the steps it is taking to implement this objective by December 31, 2010."

Session Laws 2010-148, s. 1.2, effective October 1, 2010, and applicable to construction contracts awarded on or after that date, was codified as subsection (i) of this section at the direction of the Revisor of Statutes.

Session Laws 2013-352, s. 1, amended the local modification of this section in Session Laws 2011-180, s. 1, by extending the expiration date of that provision from July 1, 2013 until July 1, 2016. However, Session Laws 2013-352, s. 1, did not account for the amendment to Session Laws 2011-180, s. 1, by Session Laws 2011-326, s. 20, which extended the expiration date from July 1, 2013 until July 1, 2018.

Session Laws 2013-418, in its preamble provides: "Whereas, the North Carolina General Assembly recognizes that the issue of immigration is the responsibility of the federal government; and

"Whereas, the federal government has failed to address the need for enforcement of existing immigration laws or to act decisively to correct, amend, and reform existing immigration procedures and policies; and

"Whereas, federal courts have consistently upheld the authority of the federal government to restrict the efforts of states to uphold and enforce federal immigration laws in order to protect their citizens and their economies; and

"Whereas, the federal government has endowed illegally present aliens with certain entitlements to be provided by the various states via unfunded mandates; and

"Whereas, those unfunded mandates and the failure to address illegal immigration places an unwarranted strain on our State's law enforcement agencies, educational institutions, and social safety nets and undermines our trust in the rule of law; and

"Whereas, the General Assembly of North Carolina recognizes its responsibility to protect and defend the citizens and the economy of the State of North Carolina; and

"Whereas, North Carolina recognizes that the greatness of this State is the result of appreciating, incorporating, and welcoming the vast diversity of immigrants who lawfully assimilate into the culture and fabric that is North Carolina; and

"Whereas, we do now encourage the North Carolina congressional delegation to exert the strongest effort possible to enact appropriate federal legislation to secure our nation's borders, uphold existing immigration laws, and reform the procedures and policies regarding the immigration process in order to facilitate an even and orderly process for those wishing to immigrate to our country; and

"Whereas, we encourage the President to work in a dedicated and cooperative fashion with Congress to restore dignity and transparency to the immigration process; and

"Whereas, the wealth, beauty, and strength of North Carolina rests not only with her natural attributes of mountains, beaches, and abundant resources but in the character of her people and their ability to address problems and challenges before them with an objective resolve tempered with a sense of fairness and consideration for all people; Now, therefore,"

Effect of Amendments. - Session Laws 2005-227, s. 1, effective July 27, 2005, substituted "manager, school superintendent" for "manager or the" and "official, or other employee" for "official or both," in the introductory language of the second paragraph of subsection (a); substituted "the person to whom authority has been delegated" for "the manager or purchasing official delegated authority" in the introductory language of subsection (g); in subdivision (g)(3), substituted "notice" for "notice, in a newspaper of general circulation in the area served by the governing body" in the second sentence, and added the third and fourth sentences.

Session Laws 2006-232, s. 2, effective August 12, 2006, and repealed effective July 1, 2015, added subdivision (e)(12).

Session Laws 2007-94, s. 1, effective June 20, 2007, added subdivision (e)(9a).

Session Laws 2007-446, s. 6, effective August 23, 2007, and applicable to projects that are funded on or after July 1, 2007, substituted "five hundred thousand dollars ($500,000)" for "three hundred thousand dollars ($300,000)" in the first paragraph of subsection (a).

Session Laws 2013-418, s. 2(c), effective September 4, 2013, added subsection (j).

Session Laws 2015-241, s. 7A.4(s), effective September 18, 2015, in subdivision (e)(7), substituted "Department of" for "State Office of" and substituted "Article 15 of Chapter 143B of the General Statutes" for "G.S. 147-33.82(b) and G.S. 147-33.92(b)."

Session Laws 2021-80, s. 2.8, effective July 8, 2021, in subsection (i), deleted "("DOT”), The University of North Carolina and its constituent institutions ('UNC')” following "Department of Transportation”; inserted "("DOT”)” preceding "and the Department of Administration”; deleted "and institutions” following "those agencies”; and substituted "DOT” FOR "DOT, UNC.”

Legal Periodicals. - For brief comment on the 1949 amendment, see 27 N.C.L. Rev. 423 (1949).

See legislative survey, 21 Campbell L. Rev. 323 (1999).

§ 143-129.1. Withdrawal of bid.

A public agency may allow a bidder submitting a bid pursuant to G.S. 143-129 for construction or repair work or for the purchase of apparatus, supplies, materials, or equipment to withdraw his bid from consideration after the bid opening without forfeiture of his bid security if the price bid was based upon a mistake, which constituted a substantial error, provided the bid was submitted in good faith, and the bidder submits credible evidence that the mistake was clerical in nature as opposed to a judgment error, and was actually due to an unintentional and substantial arithmetic error or an unintentional omission of a substantial quantity of work, labor, apparatus, supplies, materials, equipment, or services made directly in the compilation of the bid, which unintentional arithmetic error or unintentional omission can be clearly shown by objective evidence drawn from inspection of the original work papers, documents or materials used in the preparation of the bid sought to be withdrawn. A request to withdraw a bid must be made in writing to the public agency which invited the proposals for the work prior to the award of the contract, but not later than 72 hours after the opening of bids, or for a longer period as may be specified in the instructions to bidders provided prior to the opening of bids.

If a request to withdraw a bid has been made in accordance with the provisions of this section, action on the remaining bids shall be considered, in accordance with North Carolina G.S. 143-129, as though said bid had not been received. Notwithstanding the foregoing, such bid shall be deemed to have been received for the purpose of complying with the requirements of G.S. 143-132. If the work or purchase is relet for bids, under no circumstances may the bidder who has filed a request to withdraw be permitted to rebid the work or purchase.

If a bidder files a request to withdraw his bid, the agency shall promptly hold a hearing thereon. The agency shall give to the withdrawing bidder reasonable notice of the time and place of any such hearing. The bidder, either in person or through counsel, may appear at the hearing and present any additional facts and arguments in support of his request to withdraw his bid. The agency shall issue a written ruling allowing or denying the request to withdraw within five days after the hearing. If the agency finds that the price bid was based upon a mistake of the type described in the first paragraph of this section, then the agency shall issue a ruling permitting the bidder to withdraw without forfeiture of the bidder's security. If the agency finds that the price bid was based upon a mistake not of the type described in the first paragraph of this section, then the agency shall issue a ruling denying the request to withdraw and requiring the forfeiture of the bidder's security. A denial by the agency of the request to withdraw a bid shall have the same effect as if an award had been made to the bidder and a refusal by the bidder to accept had been made, or as if there had been a refusal to enter into the contract, and the bidder's bid deposit or bid bond shall be forfeited.

In the event said ruling denies the request to withdraw the bid, the bidder shall have the right, within 20 days after receipt of said ruling, to contest the matter by the filing of a civil action in any court of competent jurisdiction of the State of North Carolina. The procedure shall be the same as in all civil actions except all issues of law and fact and every other issue shall be tried de novo by the judge without jury; provided that the matter may be referred in the instances and in the manner provided for by North Carolina G.S. 1A-1, Rule 53, as amended. Notwithstanding the foregoing, if the public agency involved is the Department of Administration, it may follow its normal rules and regulations with respect to contested matters, as opposed to following the administrative procedures set forth herein. If it is finally determined that the bidder did not have the right to withdraw his bid pursuant to the provisions of this section, the bidder's security shall be forfeited. Every bid bond or bid deposit given by a bidder to a public agency pursuant to G.S. 143-129 shall be conclusively presumed to have been given in accordance with this section, whether or not it be so drawn as to conform to this section. This section shall be conclusively presumed to have been written into every bid bond given pursuant to G.S. 143-129.

Neither the agency nor any elected or appointed official, employee, representative or agent of such agency shall incur any liability or surcharge, in the absence of fraud or collusion, by permitting the withdrawal of a bid pursuant to the provisions of this section.

No withdrawal of the bid which would result in the award of the contract on another bid of the same bidder, his partner, or to a corporation or business venture owned by or in which he has an interest shall be permitted. No bidder who is permitted to withdraw a bid shall supply any material or labor to, or perform any subcontract or work agreement for, any person to whom a contract or subcontract is awarded in the performance of the contract for which the withdrawn bid was submitted, without the prior written approval of the agency. Whoever violates the provisions of the foregoing sentence shall be guilty of a Class 1 misdemeanor.

History

(1977, c. 617, s. 1; 1993, c. 539, s. 1008; 1994, Ex. Sess., c. 24, s. 14(c); 2001-328, s. 2.)

§ 143-129.2. Construction, design, and operation of solid waste management and sludge management facilities.

1. All terms relating to solid waste management and disposal as used in this section shall be defined as set forth in G.S. 130A-290, except that the term "unit of local government" also includes a sanitary district created under Part 2 of Article 2 of Chapter 130A of the General Statutes, an authority created under Article 1 of Chapter 162A of the General Statutes, a metropolitan sewerage district created under Article 5 of Chapter 162A of the General Statutes, and a county water and sewer district created under Article 6 of Chapter 162A of the General Statutes. As used in this section, the term "sludge management facility" means a facility that processes sludge that has been generated by a municipal wastewater treatment plant for final end use or disposal but does not include any component of a wastewater treatment process or facility that generates sludge.
2. To acknowledge the highly complex and innovative nature of solid waste and sludge management technologies for processing mixed solid waste and sludge generated by water and wastewater treatment facilities, the relatively limited availability of existing and proven proprietary technology involving solid waste and sludge management facilities, the desirability of a single point of responsibility for the development of facilities and the economic and technical utility of contracts for solid waste and sludge management which include in their scope combinations of design, construction, operation, management and maintenance responsibilities over prolonged periods of time and that in some instances it may be beneficial to a unit of local government to award a contract on the basis of factors other than cost alone, including but not limited to facility design, operational experience, system reliability, energy production efficiency, long-term operational costs, compatibility with source separation and other recycling systems, environmental impact and operational guarantees. Accordingly, and notwithstanding other provisions of this Article or any local law, a contract entered into between a unit of local government and any person pursuant to this section may be awarded in accordance with the following provisions for the award of a contract based upon an evaluation of proposals submitted in response to a request for proposals prepared by or for a unit of local government.
3. The unit of local government shall require in its request for proposals that each proposal to be submitted shall include all of the following:
   1. Information relating to the experience of the proposer on the basis of which said proposer purports to be qualified to carry out all work required by a proposed contract; the ability of the proposer to secure adequate financing; and proposals for project staffing, implementation of work tasks, and the carrying out of all responsibilities required by a proposed contract.
   2. A proposal clearly identifying and specifying all elements of cost which would become charges to the unit of local government, in whatever form, in return for the fulfillment by the proposer of all tasks and responsibilities established by the request for the proposal for the full lifetime of a proposed contract, including, as appropriate, but not limited to, the cost of planning, design, construction, operation, management and/or maintenance of any facility; provided, that the unit of local government may prescribe the form and content of the proposal and that, in any event, the proposer must submit sufficiently detailed information to permit a fair and equitable evaluation of the proposal.
   3. Any other information as the unit of local government may determine to have a material bearing on its ability to evaluate any proposal in accordance with this section.
4. Proposals received in response to a request for proposals may be evaluated on the basis of a technical analysis of facility design, operational experience of the technology to be utilized in the proposed facility, system reliability and availability, energy production balance and efficiency, environmental impact and protection, recovery of materials, required staffing level during operation, projection of anticipated revenues from the sale of energy and materials recovered by the facility, net cost to the unit of local government for operation and maintenance of the facility for the duration of time to be established in the request for proposals and upon any other factors and information that the unit of local government determined to have a material bearing on its ability to evaluate any proposal, which factors were set forth in said request for proposal.
5. The unit of local government may make a contract award to any responsible proposer selected pursuant to this section based upon a determination that the selected proposal is more responsive to the request for proposals and may thereupon negotiate a contract with said proposer for the performance of the services set forth in the request for proposals and the response thereto, the determination shall be deemed to be conclusive. Notwithstanding other provisions of this Article or any local law, a contract may be negotiated and entered into between a unit of local government and any person selected as a responsible proposer hereunder which may provide for, but not be limited to, the following:
   1. A contract, lease, rental, license, permit or other authorization to design, construct, operate and maintain a solid waste or sludge management facility upon such terms and conditions, for such consideration, and for such duration, not to exceed 40 years, as may be agreed upon by the unit of local government and the person.
   2. Payment by the unit of local government of a fee or other charge to the person for acceptance, processing, recycling, management and disposal of solid waste or sludge.
   3. An obligation on the part of a unit of local government to deliver or cause to be delivered to a solid waste or sludge management facility guaranteed quantities of solid wastes or sludge.
   4. The sale, utilization or disposal of any form of energy, recovered material or residue resulting from the operation of any solid waste or sludge management facility.
6. Except for authorities created pursuant to Article 22 of Chapter 153A of the General Statutes, the construction work for any facility or structure that is ancillary to a solid waste or sludge management facility and that does not involve storage and processing of solid waste or sludge or the separation, extraction, and recovery of useful or marketable forms of energy and materials from solid waste at a solid waste management facility shall be procured through competitive bidding procedures described by G.S. 143-128 through 143-129.1. Ancillary facilities include but are not limited to roads, water and sewer lines to the facility limits, transfer stations, scale houses, administration buildings, and residue and bypass disposal sites.

History

(1983, c. 795, ss. 4, 8.1; 2005-176, s. 1; 2007-131, s. 3.)

Effect of Amendments. - Session Laws 2005-176, s. 1, effective July 12, 2005, added "and sludge" to the section heading; rewrote subsection (a); in subsection (b), inserted "and sludge" following "solid waste" in three places, substituted"technologies" for "technology" and added "and sludge generated by water and wastewater treatment facilities," in the first sentence; deleted "8, or any other general, special" following "Article" and inserted "any" preceding "local law" in the second sentence; in subsection (c), inserted "all of the following" in the introductory paragraph; in subsection (e), substituted "Article or any local" for "Article 8 or any other general, local or special" in the introductory paragraph; in subdivision (e)(1), deleted "term or" preceding "duration"; inserted "or sludge" throughout subsections (e) and (f); in subsection (f), deleted "necessarily be" preceding and "the following:" following "limited to"; and made minor stylistic and punctuation changes throughout the section.

Session Laws 2007-131, s. 3, effective June 27, 2007, substituted "Except for authorities created pursuant to Article 22 of Chapter 153A of the General Statutes, the" for "The" at the beginning of subsection (f).

§ 143-129.3. Exemption of General Assembly from certain purchasing requirements.

1. The Legislative Services Commission may provide that the provisions of G.S. 143-129 and Article 3 of this Chapter do not apply to purchases by the General Assembly of data processing and data communications equipment, supplies, and services. Such exemption may vary according to the type or amount of purchase, and may vary as to whether the exemption is from some or all of those statutory provisions.
2. The Legislative Services Commission must give specific approval to any purchase in excess of five thousand dollars ($5,000) made under an exemption provided by subsection (a) of this section.

History

(1989, c. 82, s. 1.)

§ 143-129.4. Guaranteed energy savings contracts.

The solicitation and evaluation of proposals for guaranteed energy savings contracts, as defined in Part 2 of Article 3B of this Chapter, and the letting of contracts for these proposals are not governed by this Article but instead are governed by the provisions of that Part; except that guaranteed energy savings contracts are subject to the requirements of G.S. 143-128.2 and G.S. 143-135.3.

History

(1993 (Reg. Sess., 1994), c. 775, s. 4; 1995, c. 509, s. 135.2(k); 2001-496, s. 3.3; 2002-161, s. 11.)

§ 143-129.5. Purchases from nonprofit work centers for the blind and severely disabled.

Notwithstanding G.S. 143-129, a city, county, or other governmental entity subject to this Article may purchase goods and services directly from a nonprofit work center for the blind and severely disabled, as defined in G.S. 143-48.

The Department of Administration shall report annually to the Joint Legislative Commission on Governmental Operations on its administration of this program.

History

(1995, c. 265, ss. 4, 5; 1999-20, s. 1.)

§ 143-129.6. Exemption for certain training projects of the North Carolina National Guard.

Expenditures, excluding design fees, for a capital project, construction, or repair work (i) that is for training purposes and for a single exercise or undertaking at a National Guard facility; (ii) that has a total cost that does not exceed applicable federal limits; and (iii) that will be funded entirely with federal funds, shall not be subject to this Article.

History

(2014-100, s. 36.8(c).)

§ 143-129.7. Purchase with trade-in of apparatus, supplies, materials, and equipment.

Notwithstanding the provisions of Article 12 of Chapter 160A of the General Statutes, municipalities, counties, and other political subdivisions of the State may include in specifications for the purchase of apparatus, supplies, materials, or equipment an opportunity for bidders to purchase as "trade-in" specified personal property owned by the municipality, county, or other political subdivision, and the awarding authority may award a contract for both the purchase of the apparatus, supplies, materials, or equipment and the sale of trade-in property, taking into consideration the amount offered on the trade-in when applying the criteria for award established in this Article.

History

(1997-174, s. 7.)

§ 143-129.8. Purchase of information technology goods and services.

1. In recognition of the complex and innovative nature of information technology goods and services and of the desirability of a single point of responsibility for contracts that include combinations of purchase of goods, design, installation, training, operation, maintenance, and related services, a political subdivision of the State may contract for information technology, as defined in G.S. 143B-1320, using the procedure set forth in this section, in addition to or instead of any other procedure available under North Carolina law.
2. Contracts for information technology may be entered into under a request for proposals procedure that satisfies the following minimum requirements:
   1. Notice of the request for proposals shall be given in accordance with G.S. 143-129(b).
   2. Contracts shall be awarded to the person or entity that submits the best overall proposal as determined by the awarding authority. Factors to be considered in awarding contracts shall be identified in the request for proposals.
3. The awarding authority may use procurement methods set forth in G.S. 143-135.9 in developing and evaluating requests for proposals under this section. The awarding authority may negotiate with any proposer in order to obtain a final contract that best meets the needs of the awarding authority. Negotiations allowed under this section shall not alter the contract beyond the scope of the original request for proposals in a manner that: (i) deprives the proposers or potential proposers of a fair opportunity to compete for the contract; and (ii) would have resulted in the award of the contract to a different person or entity if the alterations had been included in the request for proposals.
4. Proposals submitted under this section shall not be subject to public inspection until a contract is awarded.

History

(2001-328, s. 3; 2004-199, s. 36(b); 2004-203, s. 10; 2015-241, s. 7A.4(t).)

Effect of Amendments. - Session Laws 2004-199, s. 36(b) and Session Laws 2004-203, s. 10, effective August 17, 2004, substituted "G.S. 143-129(b)" for "G.S. 143-129(a)" in subdivision (b)(1).

Session Laws 2015-241, s. 7A.4(t), effective July 1, 2015, substituted "G.S. 143B-1320" for "G.S. 147-33.81(2)" in subsection (a).

§ 143-129.8A. Purchase of certain goods and services for the North Carolina Zoological Park.

1. Exemption. - The North Carolina Zoological Park is a State entity whose primary purpose is the attraction of, interaction with, and education of the public regarding issues of global conservation, ecological preservation, and scientific exploration, and that purpose presents unique challenges requiring greater flexibility and faster responsiveness in meeting the needs of and creating the attractions for the Park. Accordingly, the Department of Natural and Cultural Resources may use the procedure set forth in this section, in addition to or instead of any other procedure available under North Carolina law, to contract with a non-State entity on behalf of the Park for the acquisition of goods and services where: (i) the contract directly results in the generation of revenue for the State of North Carolina or (ii) the use of the acquired goods and services by the Park results in increased revenue or decreased expenditures for the State of North Carolina.
2. Limitation. - Contracts executed pursuant to the exemption of subsection (a) of this section may be entered into under a request for proposals procedure that satisfies the following minimum requirements:
   1. Notice of the request for proposals shall be given in accordance with G.S. 143-129(b).
   2. Contracts shall be awarded to the person or entity that submits the best overall proposal as determined by the awarding authority. Factors to be considered in awarding contracts shall be identified in the request for proposals.
3. Procurement Methods. - The Department may use procurement methods set forth in G.S. 143-135.9 in developing and evaluating requests for proposals under this section. The Department may negotiate with any proposer in order to obtain a final contract that best meets the needs of the awarding authority. Negotiations allowed under this section shall not alter the contract beyond the scope of the original request for proposals in a manner that: (i) deprives the proposers or potential proposers of a fair opportunity to compete for the contract; and (ii) would have resulted in the award of the contract to a different person or entity if the alterations had been included in the request for proposals.
4. Promotional Rights. - Subject to the approval of the Department, a non-State entity awarded a contract that results in increased revenue or decreased expenditures for the Park may advertise, announce, or otherwise publicize the provision of services pursuant to award of the contract.

History

(2009-329, s. 1.1; 2015-241, s. 14.30(yy).)

Effect of Amendments. - Session Laws 2015-241, s. 14.30(yy), effective July 1, 2015, substituted "Department of Natural and Cultural Resources" for "Department of Environment and Natural Resources" in the second sentence of subsection (a).

§ 143-129.9. Alternative competitive bidding methods.

1. A political subdivision of the State may use any of the following methods to obtain competitive bids for the purchase of apparatus, supplies, materials, or equipment as an alternative to the otherwise applicable requirements in this Article:
   1. Reverse auction. - For purposes of this section, "reverse auction" means a real-time purchasing process in which bidders compete to provide goods at the lowest selling price in an open and interactive environment. The bidders' prices may be revealed during the reverse auction. A reverse auction may be conducted by the political subdivision or by a third party under contract with the political subdivision. A political subdivision may also conduct a reverse auction through the State electronic procurement system, and compliance with the procedures and requirements of the State's reverse auction process satisfies the political subdivision's obligations under this Article.
   2. Electronic bidding. - A political subdivision may receive bids electronically in addition to or instead of paper bids. Procedures for receipt of electronic bids for contracts that are subject to the requirements of G.S. 143-129 shall be designed to ensure the security, authenticity, and confidentiality of the bids to at least the same extent as is provided for with sealed paper bids.
2. The requirements for advertisement of bidding opportunities, timeliness of the receipt of bids, the standard for the award of contracts, and all other requirements in this Article that are not inconsistent with the methods authorized in this section shall apply to contracts awarded under this section.
3. Reverse auctions shall not be utilized for the purchase or acquisition of construction aggregates, including, but not limited to, crushed stone, sand, and gravel.

History

(2002-107, s. 1.)

Local Modification. - City of Charlotte: 2007-158, s. 1.

Editor's Note. - Session Laws 2002-107, s. 3, provides: "Notwithstanding any other provision of law to the contrary, the Secretary may conduct a pilot program for reverse auctions. The reverse auctions shall be utilized only for the purchase or exchange of those supplies, equipment, and materials as provided in G.S. 115C-522, for use by the public school systems. The Secretary shall report the results of the pilot program to the Joint Select Committee on Information Technology, upon the convening of the 2003 General Assembly."

Session Laws 2003-147, s. 11, provides: "Nothing in this act shall be construed to limit the authority of the Department of Administration to develop, implement, and monitor a pilot program for reverse auctions for public school systems as provided in Section 3 of Chapter 107 of the 2002 Session Laws."

§ 143-130. Allowance for convict labor must be specified.

In cases where the board or governing body of a State agency or of any political subdivision of the State may furnish convict or other labor to the contractor, manufacturer, or others entering into contracts for the performance of construction work, installation of apparatus, supplies, materials or equipment, the specifications covering such projects shall carry full information as to what wages shall be paid for such labor or the amount of allowance for same.

History

(1933, c. 400, s. 2; 1967, c. 860.)

§ 143-131. When counties, cities, towns and other subdivisions may let contracts on informal bids.

1. 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. 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.
2. All public entities shall solicit minority participation in contracts for the erection, construction, alteration or repair of any building awarded pursuant to this section. The public entity shall maintain a record of contractors solicited and shall document efforts to recruit minority business participation in those contracts. Nothing in this section shall be construed to require formal advertisement of bids. All data, including the type of project, total dollar value of the project, dollar value of minority business participation on each project, and documentation of efforts to recruit minority participation shall be reported to the Department of Administration, Office for Historically Underutilized Business, upon the completion of the project.

History

(1931, c. 338, s. 2; 1957, c. 862, s. 5; 1959, c. 406; 1963, c. 172; 1967, c. 860; 1971, c. 593; 1981, c. 719, s. 1; 1987 (Reg. Sess., 1988), c. 1108, s. 6; 1997-174, s. 5; 2001-496, s. 5.1; 2005-227, s. 2; 2017-81, s. 1.)

Local Modification. - (As to certain economic development projects) Buncombe: 2013-31, s. 1 (expires June 30, 2016); 2013-40, s. 1 (expires June 30, 2016); (As to school building contracts) Cabarrus: 2009-430, s. 2 (expires June 30, 2014); Catawba: 2010-63, s. 1; Cherokee: 2007-48, s. 1; Clay: 2006-94, s. 1; 2012-32, s. 1; 2016-36, s. 1 (as to renovation and restoration of Clay County's old courthouse building as multipurpose facility, and expires June 30, 2018); Currituck: 1993 (Reg. Sess., 1994), c. 668, s. 1; Dare: 1999-40, s. 1; 2003-47, s. 1 (as to design and construction of administration building and renovation of Old Dare Court House, and expires July 1, 2008); Davidson: 2012-63 (expires June 30, 2014); Durham: 2013-386, s. 5(a); Forsyth: 1993, c. 128, s. 1; Franklin: 1993 (Reg. Sess., 1994), c. 757, s. 1; (As to water treatment and wastewater treatment plant expansion projects) Harnett: 2007-214, s. 1 (expires December 31, 2010); Johnston: 1995 (Reg. Sess., 1996), c. 611, s. 1; 2008-40 (as to contracts for renovations to the county courthouse); Mecklenburg: 2007-333, s. 1, as amended by 2009-149, s. 1, 2010-57, s. 1, and 2011-150, s. 2 (expires June 30, 2015); (As to contracts with Water and Sewer Authority) New Hanover: 2007-135, s. 1 (expires December 31, 2009); Rockingham: 2012-140, s. 1 (expires June 30, 2017); Wake: 2007-333, s. 1, as amended by 2009-149, s. 1, 2010-57, s. 1, and 2011-150, s. 2 (expires June 30, 2015); Wayne: 2011-98, s. 1 (expires December 31, 2014); city of Asheville: 2007-333, s. 1, as amended by 2009-149, s. 1, and 2010-57, s. 1 (expires June 30, 2015); city of Charlotte: 2000-26, s. 1; 2002-91, s. 1, as amended by 2007-255, s. 1, and as amended by 2008-101; 2006-26, s. 8.87 as added by 2011-180, s. 3 (expires June 30, 2016); (as to water and wastewater treatment plants) 2007-312, s. 1; city of Clinton: 2013-115, ss. 1, 2 (as to use of design-build method of construction for certain projects involving city-owned facilities awarded before June 30, 2015); (as to speedway area infrastructure projects) city of Concord: 2008-7, s. 1 (expires December 31, 2013); city of Durham: 2001-350, s. 3; 2011-168, s. 1; city of Greensboro: 1951, c. 707, s. 5; 1987, c. 53, s. 3; 1995, c. 218, s. 2; city of Raleigh: 2007-333, s. 1, as amended by 2009-149, s. 1; (As to contracts with Water and Sewer Authority) city of Wilmington: 2007-135, s. 1 (expires December 31, 2009); city of Winston-Salem: 1985, c. 632; 1987, c. 575; 2011-80, s. 1; town of Apex: 2007-333, s. 1, as amended by 2009-149, s. 1, 2010-57, s. 1, and 2011-150, s. 2 (expires June 30, 2015); town of Carrboro: 2007-333, s. 1, as amended by 2009-149, s. 1, and 2010-57, s. 1 (expires June 30, 2015); town of Cary: 2007-333, s. 1, as amended by 2009-149, s. 1, 2010-57, s. 1, and 2011-150, s. 2 (expires June 30, 2015); town of Chapel Hill: 2007-333, s. 1, as amended by 2009-149, s. 1, and 2010-57, s. 1 (expires June 30, 2015); town of Clayton: town of Cornelius: 1971, c. 288, s. 1.4, as added by 2011-180, s. 1, and amended by 2011-326, s. 20 (expires July 1, 2018), and as amended by 2013-352, s. 1 (expires July 1, 2016); town of Fuquay-Varina: 2007-333, s. 1, as amended by 2009-149, s. 1, 2010-57, s. 1, and 2011-150, s. 2 (expires June 30, 2015); town of Garner: 2011-150, s. 2 (expires June 30, 2015); town of Holly Springs: 2007-333, s. 1, as amended by 2009-149, s. 1, 2010-57, s. 1, and 2011-150, s. 2 (expires June 30, 2015); town of Knightdale: 2007-333, s. 1, as amended by 2009-149, s. 1, 2010-57, s. 1, and 2011-150, s. 2 (expires June 30, 2015); town of Louisburg: 2007-216, s. 3, as amended by 2009-370, s. 1 (expires January 1, 2011); town of Manteo: 1995, c. 125, s. 1; town of Morrisville: 2007-333, s. 1, as amended by 2009-149, s. 1, 2010-57, s. 1, and 2011-150, s. 2 (expires June 30, 2015); town of Rolesville: 2007-333, s. 1, as amended by 2009-149, s. 1, 2010-57, s. 1, and 2011-150, s. 2 (expires June 30, 2015); town of Southern Shores: 1995, c. 70, s. 1; town of Sunset Beach: 1993, c. 381, s. 3; 1995, c. 124; 1995 (Reg. Sess., 1996), c. 732; 1997-63; town of Wake Forest: 2007-333, s. 1, as amended by 2009-149, s. 1, 2010-57, s. 1, and 2011-150, s. 2 (expires June 30, 2015); town of Wendell: 2007-333, s. 1, as amended by 2009-149, s. 1, 2010-57, s. 1, and 2011-150, s. 2 (expires June 30, 2015); town of Yadkinville: 1997-3, s. 1; town of Zebulon: 2007-333, s. 1, as amended by 2009-149, s. 1, 2010-57, s. 1, and 2011-150, s. 2 (expires June 30, 2015); Alamance-Caswell Area Mental Health, Developmental Disabilities and Substance Abuse Authority: 1987, c. 120; Lower Cape Fear Water and Sewer Authority: 2012-60 (expires December 31, 2015); Winston-Salem/Forsyth County Board of Education: 1993, c. 128, s. 1.

Cross References. - As to legislation regarding construction of juvenile facilities, see the editor's note under G.S. 7B-1500.

Editor's Note. - As to the exemption of the Office of State Budget and Management from the requirements of G.S. 143-135.26(1), 143-128, 143-129, 143-131, 143-132, 143-134, 143-135.26, 143-64.10 through 143-64.13, 113A-1 through 113A-10, 113A-50 through 113A-66, 133-1.1(b), and 133-1.1(g) and rules implementing those statutes for the purpose of construction of prison facilities, see Session Laws 1989, c. 754, s. 28(a).

As to exemption of the Office of State Budget and Management from the requirements of this section in the administration and implementation of the Prison Facilities Legislative Bond Act of 1990, see Session Laws 1989 (Reg. Sess., 1990), c. 933, s. 6(4).

As to the exemption of the Office of State Budget and Management from the requirements of this section in providing prison facilities under the provisions of the State Prison and Youth Services Facilities Bond Act, see Session Laws 1989 (Reg. Sess., 1990), c. 935, s. 6(a)(4).

As to exemption of the Office of Management and Budget from the requirements of this section with respect to facilities authorized for the Department of Correction, see Session Laws 1991, c. 689, s. 239(f), as amended by Session Laws 1991 (Reg. Sess., 1992), c. 1044, s. 41(b), quoted under G.S. 143-64.10.

Session Laws 1993, c. 550, s. 6, effective July 1, 1993, provides that if the Secretary of Administration, after consultation with the Secretary of Correction, finds that the delivery of state prison and youth services facilities authorized to be constructed under that act must be expedited for good cause, the Office of State Construction of the Department of Administration may use alternative delivery systems and shall be exempt from several statutes, including this section, and rules implementing those statutes to the extent necessary to expedite delivery. Section 6 also sets out the provisions governing the exercise of the exemptions allowable and other relevant provisions.

As to the exemption of the Office of State Construction of the Department of Administration from the requirements of this section to the extent necessary to expedite delivery of certain prison facilities, see Session Laws 1994, Extra Session, c. 24, s. 67.

Session Laws 1995, c. 507, s. 27.10, provides that if the construction of prison facilities in Avery and Mitchell Counties must be expedited for good cause, as determined by the Secretary of Administration and Secretary of Correction, the Office of State Construction of the Department of Administration shall be exempt from the following statutes and rules to the extent necessary to expedite delivery: G.S. 143-135.26, 143-128, 143-129, 143-131, 143-132, 143-134, 113A-1 through 113A-10, 113A-50 through 113A-66, 133-1.1(g), and 143-408.1 through 143-408.7.

As to exemption of the Department of Justice from the requirements of this section to implement the repairs and renovations necessary for the Western Justice Academy, see Session Laws 1996, Second Extra Session, c. 18, s. 23.4(a).

As to exemption of the Office of State Construction of the Department of Administration from this section and rules implementing this section, to the extent necessary to expedite delivery of juvenile facilities, see Session Laws 1998-202, s. 35(a), quoted under G.S. 143-128.

Session Laws 2005-227, s. 5, provides: "This act raises the threshold amount from five thousand dollars ($5,000) to thirty thousand dollars ($30,000) in G.S. 143-131 and G.S. 160A-266. If any local act provides a threshold amount for the subjects addressed in these statutes that is less than the amount provided in this act, this act prevails to the extent of that conflict."

Session Laws 2013-352, s. 1, amended the local modification of this section in Session Laws 2011-180, s. 1, by extending the expiration date of that provision from July 1, 2013 until July 1, 2016. However, Session Laws 2013-352, s. 1, did not account for the amendment to Session Laws 2011-180, s. 1, by Session Laws 2011-326, s. 20, which extended the expiration date from July 1, 2013 until July 1, 2018.

Session Laws 2017-81, s. 3, is a severability clause.

Effect of Amendments. - Session Laws 2005-227, s. 2, effective July 27, 2005, in subsection (a), substituted "thirty thousand dollars ($30,000)" for "five thousand dollars ($5,000)" inserted "local school administrative unit" preceding "or commission of any county" in the introductory language, and inserted "local administrative unit" following "department, board" in the last sentence.

§ 143-131.1. Exception for contracts for the purchase of food and supplies for county detention facilities by the sheriffs of certain counties.

1. A county sheriff's office may contract for the purchase of food and food services supplies for that county's detention facility without being subject to the requirements of G.S. 143-129 and G.S. 143-131(a).
2. This section applies only to the following counties: Alamance, Anson, Beaufort, Caswell, Catawba, Cherokee, Chowan, Cleveland, Craven, Cumberland, Currituck, Dare, Davidson, Duplin, Gaston, Granville, Guilford, Haywood, Henderson, Iredell, Jones, Lincoln, Madison, Onslow, Orange, Pamlico, Pasquotank, Randolph, Rockingham, Sampson, Stanly, Transylvania, Wake, Washington, and Yancey.

History

(2015-156, ss. 1, 2; 2015-157, ss. 1, 2; 2015-158, ss. 1, 2; 2016-20, s. 1; 2016-37, s. 1.)

Editor's Note. - Session Laws 2015-156, and Session Laws 2015-157, effective July 20, 2015, and Session Laws 2015-158, effective July 23, 2015, provided for a local modification to the provisions of G.S. 143-129 and G.S. 143-131, applicable only to the counties listed in subsection (b). As the local modification provided by these three acts was applicable to more than 10 localities, it has been codified as this section at the direction of the Revisor of Statutes.

Effect of Amendments. - Session Laws 2016-20, s. 1, effective June 21, 2016, in subsection (b), added "Catawba," "Cleveland," and "Gaston," and moved "Jones" to appear in alphabetical order.

Session Laws 2016-37, s. 1, effective June 27, 2016, in subsection (b), added "Duplin" and "Sampson" and moved "Jones" to appear in alphabetical order.

§ 143-132. Minimum number of bids for public contracts.

1. 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 or to contracts for dredging services in the State's coastal waters. 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.
2. For purposes of contracts bid in the alternative between the separate-prime and single-prime contracts, pursuant to G.S. 143-128(d1) each single-prime bid shall constitute a competitive bid in each of the four subdivisions or branches of work listed in G.S. 143-128(a), and each full set of separate-prime bids shall constitute a competitive single-prime bid in meeting the requirements of subsection (a) of this section. If there are at least three single-prime bids but there is not at least one full set of separate-prime bids, no separate-prime bids shall be opened.
3. The State Building Commission shall develop guidelines no later than January 1, 1991, governing the opening of bids pursuant to this Article. These guidelines shall be distributed to all public bodies subject to this Article. The guidelines shall not be subject to the provisions of Chapter 150B of the General Statutes.

History

(1931, c. 291, s. 3; 1951, c. 1104, s. 3; 1959, c. 392, s. 2; 1963, c. 289; 1967, c. 860; 1977, c. 644; 1979, c. 182, s. 2; 1989, c. 480, s. 2; 1989 (Reg. Sess., 1990), c. 1051, s. 4; 1991 (Reg. Sess., 1992), c. 985, s. 1; 1995, c. 358, s. 4; c. 367, ss. 1, 7; 2001-496, s. 9; 2021-92, s. 1.)

Local Modification. - Alamance, and municipalities and local school administrative units within that county: 1999-93, s. 1; Beaufort, and municipalities and local school administrative units within that county: 1999-93, s. 1; Bertie: 1953, c. 1257; (As to certain economic development projects) Buncombe: 2013-31, s. 1 (expires June 30, 2016); 2013-40, s. 1 (expires June 30, 2016); (As to school building contracts) Cabarrus: 2009-430, s. 2 (expires June 30, 2014); Camden, and municipalities and local school administrative units within that county: 1999-93, s. 1; Catawba: 2010-63, s. 1; Cherokee: 2007-48, s. 1; Clay: 2006-94, s. 1; 2016-36, s. 1 (as to renovation and restoration of Clay County's old courthouse building as multipurpose facility, and expires June 30, 2018); Currituck: 1993 (Reg. Sess., 1994), c. 668, s. 1; Currituck, and municipalities and local school administrative units within that county: 1999-93, s. 1; Dare: 1999-40, s. 1; 2003-47, s. 1 (as to design and construction of administration building and renovation of Old Dare Court House, and expires July 1, 2008); Davidson: 2012-63 (expires June 30, 2014); Durham: 2013-386, s. 5(a); Forsyth: 1993, c. 128, s. 1; Franklin: 1993 (Reg. Sess., 1994), c. 757, s. 1; (As to water treatment and wastewater treatment plant expansion projects) Harnett: 2007-214, s. 1 (expires December 31, 2010); Iredell: (as to animal shelter project) 2008-67, s. 1 (expires July 1, 2010); Johnston: 2008-40 (as to contracts for renovations to the county courthouse); Mecklenburg: 2007-333, s. 1, as amended by 2009-149, s. 1, 2010-57, s. 1, and 2011-150, s. 2 (expires June 30, 2015); (As to contracts with Water and Sewer Authority) New Hanover: 2007-135, s. 1 (expires December 31, 2009); Northampton: 1953, c. 1257; Pasquotank and Perquimans, and municipalities and local school administrative units within those counties: 1999-93, s. 1; Rockingham: 2012-140, s. 1 (expires June 30, 2017); Stokes: 2006-50, s. 1; Surry: 1993 (Reg. Sess., 1994), c. 705. s. 1; Wake: 2007-333, s. 1, as amended by 2009-149, s. 1, 2010-57, s. 1, and 2011-150, s. 2 (expires June 30, 2015); Wayne: 2011-98, s. 1 (expires December 31, 2014); Wilson: 1991, c. 200; city of Asheville: 2007-333, s. 1, as amended by 2009-419, s. 1, and 2010-57, s. 1 (expires June 30, 2015); city of Charlotte: 2000-26, s. 8.87 as added by 2011-180 (expires June 30, 2016); (as to water and wastewater treatment plants) 2007-312, s. 1; city of Clinton: 2013-115, ss. 1, 2 (as to use of design-build method of construction for certain projects awarded before June 30, 2015 involving city-owned facilities); (as to speedway area infrastructure projects) city of Concord: 2008-7, s. 1 (expires December 31, 2013); city of Durham: 2001-350, s. 3; city of Elizabeth City: 2001-227, s. 1; city of Raleigh: 2007-333, s. 1, as amended by 2009-149, s. 1; city of Roanoke Rapids: 2001-245, s. 3; 2005-174, s. 2; (As to contracts with Water and Sewer Authority) city of Wilmington: 2007-135, s. 1 (expires December 31, 2009); town of Apex: 2007-333, s. 1, as amended by 2009-149, s. 1, 2010-57, s. 1, and 2011-150, s. 2 (expires June 30, 2015); town of Blowing Rock: 2006-171, s. 10 (public parking facility); town of Carrboro: 2007-333, s. 1, as amended by 2009-149, s. 1, and 2010-57, s. 1 (expires June 30, 2015); town of Cary: 2007-333, s. 1, as amended by 2009-149, s. 1, 2010-57, s. 1, and 2011-150, s. 2 (expires June 30, 2015); town of Chapel Hill: 2007-333, s. 1, as amended by 2009-149, s. 1, and 2010-57, s. 1 (expires June 30, 2015); town of Clayton: 1995, c. 125, s. 1; town of Cornelius: 1971, c. 288, s. 1.4, as added by 2011-180, s. 1, and amended by 2011-326, s. 20 (expires July 1, 2018), and as amended by 2013-352, s. 1 (expires July 1, 2016); town of Fuquay-Varina: 2007-333, s. 1, as amended by 2009-149, s. 1, 2010-57, s. 1, and 2011-150, s. 2 (expires June 30, 2015); town of Garner: 2007-333, s. 1, as amended by 2009-149, s. 1, 2010-57, s. 1, and 2011-150, s. 2 (expires June 30, 2015); town of Holly Springs: 2007-333, s. 1, as amended by 2009-149, s. 1, 2010-57, s. 1, and 2011-150, s. 2 (expires June 30, 2015); town of Knightdale: 2007-333, s. 1, as amended by 2009-149, s. 1, 2010-57, s. 1, and 2011-150, s. 2 (expires June 30, 2015); town of Louisburg: 2007-216, s. 3, as amended by 2009-370, s. 1 (expires January 1, 2011); town of Manteo: 1985 (Reg. Sess., 1986), c. 808; town of Morrisville: 2007-333, s. 1, as amended by 2009-149, s. 1, 2010-57, s. 1, and 2011-150, s. 2 (expires June 30, 2015); town of Rolesville: 2007-333, s. 1, as amended by 2009-149, s. 1, 2010-57, s. 1, and 2011-150, s. 2 (expires June 30, 2015); town of Southern Shores: 1995, c. 70, s. 1; town of Wake Forest: 2007-333, s. 1, as amended by 2009-149, s. 1, 2010-57, s. 1, and 2011-150, s. 2 (expires June 30, 2015); town of Wendell: 2007-333, s. 1, as amended by 2009-149, s. 1, 2010-57, s. 1, and 2011-150, s. 2 (expires June 30, 2015); town of Yadkinville: 1997-3, s. 1; town of Zebulon: 2007-333, s. 1, as amended by 2009-149, s. 1, 2010-57, s. 1, and 2011-150, s. 2 (expires June 30, 2015); Alamance-Caswell Area Mental Health, Development Disabilities and Substance Abuse Authority: 1987, c. 120; Charlotte/Mecklenburg Board of Education: 1999-207, ss. 3, 4; 2001-496, s. 10(c); Lower Cape Fear Water and Sewer Authority: 2012-60 (expires December 31, 2015); Union County Public Schools Board of Education: 2007-90, ss. 2 and 3 (expires July 1, 2011); Winston-Salem/Forsyth County Board of Education: 1993, c. 128, s. 1; 2003-269, s. 1.

Cross References. - As to legislation regarding construction of juvenile facilities, see the editor's note under G.S. 7B-1500.

Editor's Note. - As to the design for construction of dormitories and the exemption of the Office of State Budget and Management from the requirements of G.S. 143-135.26(1), 143-128, 143-129, 143-132, 143-134, 143-131, 143-135.26, 143-64.10 through 143-64.13, 113A-1 through 113A-10, 113A-50 through 113A-66, 133-1.1(b), and 133-1.1(g) and rules implementing those statutes for contracting and supervising the design, construction, or demolition of prison facilities, see Session Laws 1987 (Reg. Sess., 1988), c. 1086, s. 123(b).

As to the exemption of the Office of State Budget and Management from the requirements of G.S. 143-135.26(1), 143-128, 143-129, 143-131, 143-132, 143-134, 143-135.26, 143-64.10 through 143-64.13, 113A-1 through 113A-10, 113A-50 through 113A-66, 133-1.1(b), and 133-1.1(g) and rules implementing those statutes for the purpose of construction of prison facilities, see Session Laws 1989, c. 754, s. 28(a).

As to exemption of the Office of State Budget and Management from the requirements of this section in the administration and implementation of the Prison Facilities Legislative Bond Act of 1990, see Session Laws 1989 (Reg. Sess., 1990), c. 933, s. 6(4).

As to the exemption of the Office of State Budget and Management from the requirements of this section in providing prison facilities under the provisions of the State Prison and Youth Services Facilities Bond Act, see Session Laws 1989 (Reg. Sess., 1990), c. 935, s. 6(a)(4).

As to exemption of the Office of Management and Budget from the requirements of this section with respect to facilities authorized for the Department of Correction, see Session Laws 1991, c. 689, s. 239(f), as amended by Session Laws 1991 (Reg. Sess., 1992), c. 1044, s. 41(b), quoted under G.S. 143-64.10.

Session Laws 1993, c. 550, s. 6, effective July 1, 1993, provides that if the Secretary of Administration, after consultation with the Secretary of Correction, finds that the delivery of state prison and youth services facilities authorized to be constructed under that act must be expedited for good cause, the Office of State Construction of the Department of Administration may use alternative delivery systems and shall be exempt from several statutes, including this section, and rules implementing those statutes to the extent necessary to expedite delivery. Section 6 also sets out the provisions governing the exercise of the exemptions allowable and other relevant provisions.

As to the exemption of the Office of State Construction of the Department of Administration from the requirements of this section to the extent necessary to expedite delivery of certain prison facilities, see Session Laws 1994, Extra Session, c. 24, s. 67.

Session Laws 1995, c. 507, s. 27.10, provides that if the construction of prison facilities in Avery and Mitchell Counties must be expedited for good cause, as determined by the Secretary of Administration and Secretary of Correction, the Office of State Construction of the Department of Administration shall be exempt from the following statutes and rules to the extent necessary to expedite delivery: G.S. 143-135.26, 143-128, 143-129, 143-131, 143-132, 143-134, 113A-1 through 113A-10, 113A-50 through 113A-66, 133-1.1(g), and 143-408.1 through 143-408.7.

Session Laws 1996, Second Extra Session, c. 18, s. 23.4, provides: "(a) The Department of Justice, in consultation with the Office of State Construction of the Department of Administration, shall contract for and supervise all aspects of administration, technical assistance, design, construction, or demolition of facilities in order to implement the repairs and renovations of the Western Justice Academy under the provisions of this section without being subject to the following statutes and rules implementing those statutes: G.S. 143-135.26, 143-131, 143-132, 113A-1 through 113A-10, 113A-50 through 113A-66, and 133-1.1(g). The Department of Justice shall let contracts for all repairs and renovations of the Academy as soon as possible, but not later than December 1, 1996.

"The Department of Justice shall have a verifiable ten percent (10%) goal for participation by minority and women-owned businesses. All contracts for the design, construction, or demolition of facilities shall include a penalty for failure to complete the work by a specified date."

As to exemption of the Office of State Construction of the Department of Administration from this section and rules implementing this section, to the extent necessary to expedite delivery of juvenile facilities, see Session Laws 1998-202, s. 35(a), quoted under G.S. 143-128.

Session Laws 2009-451, s. 9.14(b), provides: "With respect to the demonstration wind turbines and necessary support facilities authorized by subsection (a) of this section, the facilities authorized under this act shall be constructed in accordance with the provisions of general law applicable to the construction of State facilities, except that the State Property Office shall expedite and grant all easements and use agreements required for construction of the facilities without payment of any fee, royalty, or other cost. Notwithstanding any other provision of law, construction of the facilities authorized by this section shall be exempt from the following statutes and rules implementing those statutes: G.S. 143-48 through 143-64, 143-128, 143-129, 143-132, 113A-1 through 113A-10, 113A-50 through 113A-66, and 113A-116 through 113A-128. If Senate Bill 1068, 2009 Regular Session, becomes law, the provisions of Part 12 of Article 21 of Chapter 143 of the General Statutes as enacted by that act shall not apply to the facilities authorized by this section. With respect to any other environmental permits required for construction of the facilities, the Department of Environment and Natural Resources is directed to expedite permitting of the project to the extent allowed by law and shall waive any application fees that would be otherwise applicable to applications for permits required for the facilities and, where possible under applicable law, issue all permits within 40 days of receipt of a complete application." Senate Bill 1068, 2009 Regular Session, did not become law.

Session Laws 2009-451, s. 1.2, provides: "This act shall be known as the 'Current Operations and Capital Improvements Appropriations Act of 2009'."

Session Laws 2009-451, s. 28.3, provides: "Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2009-2011 fiscal biennium, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2009-2011 fiscal biennium."

Session Laws 2009-451, s. 28.5, is a severability clause.

Session Laws 2010-31, s. 9.10(a) and (b), provides: "(a) The General Assembly finds that strengthening research and development efforts on renewable energy sources is critical to North Carolina's environment and economy, and that recent events resulting from the British Petroleum oil spill amplify the need for North Carolina's innovators and scientists to enhance their efforts to develop sustainable energy sources and technologies that do not threaten the health and well-being of the State's waters, sensitive lands, and residents. In order to provide opportunities for research into tidal, wave, and other ocean-based sources of alternative energy, the University of North Carolina Coastal Studies Institute shall form a consortium with the Colleges of Engineering at North Carolina State University, North Carolina Agricultural and Technical State University, and the University of North Carolina at Charlotte to study the capture of energy from ocean waves. The Coastal Studies Institute shall be designated the lead agency in coordinating these efforts. Funding appropriated by this act shall be used by university scientists to conceptualize, design, construct, operate, and market new and innovative technologies designed to harness and maximize the energy of the ocean in order to provide substantial power generation for the State. Funding may be used to leverage federal or private research funding for this purpose, but may not be used to purchase and utilize technology that has already been developed by others unless that technology is a critical component to North Carolina's research efforts. Wave energy technologies developed and used for this research may be attached to or staged from an existing State-owned structure located in the ocean waters of the State, and data generated by these technologies shall be available at this structure for public education and awareness. It is the intent of the General Assembly that North Carolina become the focal point for marine-based ocean research collaborations involving the nation's public and private universities.

"(b) With respect to the demonstration wave energy facility and necessary support facilities authorized by subsection (a) of this section, the facilities authorized under this act shall be constructed in accordance with the provisions of general law applicable to the construction of State facilities, except that the State Property Office shall expedite and grant all easements and use agreements required for construction of the facilities without payment of any fee, royalty, or other cost. Notwithstanding any other provision of law, construction of the facilities authorized by this section shall be exempt from the following statutes and rules implementing those statutes: G.S. 143-48 through 143-64, 143-128, 143-129, 143-132, 113A-1 through 113A-10, 113A-50 through 113A-66, and 113A-116 through 113A-128. With respect to any other environmental permits required for construction of the facilities, the Department of Environment and Natural Resources is directed to expedite permitting of the project to the extent allowed by law and shall waive any application fees that would be otherwise applicable to applications for permits required for the facilities and, where possible under applicable law, issue all permits within 40 days of receipt of a complete application."

Session Laws 2010-31, s. 1.1, provides: "This act shall be known as the 'Current Operations and Capital Improvements Appropriations Act of 2010'."

Session Laws 2010-31, s. 32.3, provides: "Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2010-2011 fiscal year, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2010-2011 fiscal year."

Session Laws 2010-31, s. 32.6, is a severability clause.

Session Laws 2013-352, s. 1, amended the local modification of this section in Session Laws 2011-180, s. 1, by extending the expiration date of that provision from July 1, 2013 until July 1, 2016. However, Session Laws 2013-352, s. 1, did not account for the amendment to Session Laws 2011-180, s. 1, by Session Laws 2011-326, s. 20, which extended the expiration date from July 1, 2013 until July 1, 2018.

Session Laws 2021-92, s. 2, made the "or to contracts for dredging services in the State's coastal waters", as added to the end of the first sentence in subsection (a) of this section by Session Laws 2021-92, s. 1, effective July 22, 2021, and applicable to bids received on or after that date.

Effect of Amendments. - Session Laws 2021-92, s. 1, added "or to contracts for dredging services in the State's coastal waters" to the end of the first sentence in subsection (a). For effective date and applicability, see editor's note.

§ 143-133. No evasion permitted.

No bill or contract shall be divided for the purpose of evading the provisions of this Article.

History

(1933, c. 400, s. 3; 1967, c. 860.)

Local Modification. - Johnston: 1995 (Reg. Sess., 1996), c. 611, s. 1; 2002-93, s. 2 (expires June 30, 2005).

§ 143-133.1. Reporting.

1. Governmental entities that contract with a construction manager at risk, design-builder, or private developer under a public-private partnership shall report to the Secretary of Administration the following information on all projects where a construction manager at risk, design-builder, or private developer under a public-private partnership is utilized:
   1. A detailed explanation of the reason why the particular construction manager at risk, design-builder, or private developer was selected.
   2. The terms of the contract with the construction manager at risk, design-builder, or private developer.
   3. A list of all other firms considered but not selected as the construction manager at risk, design-builder, or private developer.
   4. A report on the form of bidding utilized by the construction manager at risk, design-builder, or private developer on the project.
   5. A detailed explanation of why the particular delivery method was used in lieu of the delivery methods identified in G.S. 143-128(a1) subdivisions (1) through (3) and the anticipated benefits to the public entity from using the particular delivery method.
2. Except as provided in subsection (b1) of this section, the Secretary of Administration shall adopt rules to implement the provisions of this section, including the format and frequency of reporting.
3. The Board of Governors of The University of North Carolina shall adopt rules to implement the provisions of this section for The University of North Carolina, including the format and frequency of reporting. The rules shall include that constituent institutions of The University of North Carolina shall report the information required by subsection (a) of this section to the Board of Governors on an annual basis.
4. A governmental entity letting a contract pursuant to any of the delivery methods identified in subdivisions (a1)(4), (a1)(6), (a1)(7), or (a1)(8) of G.S. 143-128 shall submit the report required by this section no later than 12 months from the date the governmental entity takes beneficial occupancy of the project. In the event that the governmental entity fails to do so, the governmental entity shall be prohibited from utilizing subdivisions (a1)(4), (a1)(6), (a1)(7), or (a1)(8) of G.S. 143-128 until such time as the governmental entity completes the reporting requirement under this this section. Contracts entered into in violation of this prohibition shall not be deemed ultra vires and shall remain valid and fully enforceable. Any person, corporation or entity, however, which has submitted a bid or response to a request for proposals on any construction project previously advertised by the governmental entity shall be entitled to obtain an injunction against the governmental entity compelling the governmental entity to comply with the reporting requirements of this section and from commencing or continuing a project let in violation of this subdivision until such time as the governmental entity has complied with the reporting requirements of this section. The plaintiff in such cases shall not be entitled to recover monetary damages caused by the governmental entity's failure to comply with this reporting requirements section, and neither the plaintiff nor the defendant shall be allowed to recover attorneys fees except as otherwise allowed by G.S. 1A-11 or G.S. 6-21.5. An action seeking the injunctive relief allowed by this subdivision must be filed within four years from the date that the governmental entity took beneficial occupancy of the project for which the report remains due.
5. For purposes of this section, the term "governmental entity" shall have the same meaning as in G.S. 143-128.1B(a)(6).

History

(2014-42, ss. 3, 5; 2021-80, s. 2.9.)

Editor's Note. - This section is former subsections (b), (c), and (d) of G.S. 143-64.31, recodified as subsections (a), (b), and (c), respectively, by Session Laws 2014-42, s. 3, and amended by Session Laws 2014-42, s. 10, effective October 10, 2014, and applicable to contracts awarded on or after that date.

The user is advised to consult the annotations under G.S. 143-64.31.

Effect of Amendments. - Session Laws 2014-42, s. 5, effective October 1, 2014, near the beginning of subsection (a), substituted "Governmental" for "Public" and deleted "under this section" following "partnership"; at the end of subdivision (a)(3), deleted "and the amount of their proposed fees for services"; near the end of subsection (b), substituted "section" for "subsection"; throughout subsection (c), substituted "governmental entity" for "public body", in the first sentence substituted "this section" for "G.S. 143-64.31(b)", and substituted "governmental entity" for "owner" in the last sentence; and added subsection (d). See Editor's note for applicability.

Session Laws 2021-80, s. 2.9, effective July 8, 2021, substituted "Except as provided in subsection (b1) of this section, the” for "The” in subsection (b); and added subsection (b1).

§ 143-133.2: Reserved for future codification purposes.

§ 143-133.3. E-verify compliance.

1. No board or governing body of the State, or of any institution of the State government, or of any political subdivision of the State, may enter into a contract unless the contractor, and the contractor's subcontractors under the contract, comply with the requirements of Article 2 of Chapter 64 of the General Statutes.
2. A board or governing body of the State, or of any institution of the State government, or of any political subdivision of the State, shall be deemed in compliance with this section if the contract includes a term requiring the contractor, and the contractor's subcontractors, to comply with the requirements of Article 2 of Chapter 64 of the General Statutes.
3. This section shall not apply to any of the following:
   1. Expenses related to travel, including transportation and lodging, for employees, officers, agents, or members of State or local boards, commissions, committees, or councils.
   2. Contracts solely for the purchase of goods, apparatus, supplies, materials, or equipment.
   3. Contracts let under G.S. 143-129(e)(1), (9), or (9a).
   4. Contracts let under G.S. 143-129(g).

History

(2015-294, s. 1(a).)

Editor's Note. - Session Laws 2015-294, s. 17, made this section effective October 1, 2015, and applicable to contracts entered into on or after October 1, 2015.

§ 143-133.4: Reserved for future codification purposes.

§ 143-133.5. Public contracts; labor organizations.

1. It is the intent of the General Assembly that the provisions of this section will provide for more economical, nondiscriminatory, neutral, and efficient procurement of construction-related services by the State and political subdivisions of the State as market participants. The General Assembly finds that providing for fair and open competition best effectuates this intent.
2. Every officer, board, department, commission, or commissions charged with the responsibility of preparation of specifications or awarding or entering into contracts for the erection, construction, alteration, or repair of any buildings for the State, or for any county, municipality, or other public body subject to this Article shall not in any bid specifications, project agreements, or other controlling documents:
   1. Require or prohibit a bidder, offeror, contractor, or subcontractor from adhering to an agreement with one or more labor organizations in regard to that project or a related construction project.
   2. Otherwise discriminate against a bidder, offeror, contractor, or subcontractor for becoming, remaining, refusing to become or remain a signatory to, or for adhering or refusing to adhere to an agreement with one or more labor organizations in regard to that project or a related construction project.
3. No officer, board, department, commission, or commissions charged with the responsibility of awarding grants or tax incentives, or any county, municipality, or other public body in the award of grants or tax incentives, may award a grant or tax incentive that is conditioned upon a requirement that the awardee include a term described in subsection (b) of this section in a contract document for any construction, improvement, maintenance, or renovation to real property or fixtures that are the subject of the grant or tax incentive.
4. This section does not prohibit any officer, board, department, commission, or commissions or any county, municipality, or other public body from awarding a contract, grant, or tax incentive to a private owner, bidder, contractor, or subcontractor who enters into or who is party to an agreement with a labor organization if being or becoming a party or adhering to an agreement with a labor organization is not a condition for award of the contract, grant, or tax incentive, and if the State agent, employee, or board or the political subdivision does not discriminate against a private owner, bidder, contractor, or subcontractor in the awarding of that contract, grant, or tax incentive based upon the person's status as being or becoming, or the willingness or refusal to become, a party to an agreement with a labor organization.
5. This section does not prohibit a contractor or subcontractor from voluntarily entering into or complying with an agreement entered into with one or more labor organizations in regard to a contract with the State or a political subdivision of the State or funded in whole or in part from a grant or tax incentive from the State or political subdivision.
6. The State or the governing body of a political subdivision may exempt a particular project, contract, subcontract, grant, or tax incentive from the requirements of any or all of the provisions of subsection (b) or (c) of this section if the State or governing body of the political subdivision finds, after public notice and a hearing, that special circumstances require an exemption to avert a significant, documentable threat to public health or safety. A finding of special circumstances under this section shall not be based on the possibility or presence of a labor dispute concerning the use of contractors or subcontractors who are nonsignatories to, or otherwise do not adhere to, agreements with one or more labor organizations, or concerning employees on the project who are not members of or affiliated with a labor organization.
7. This section does not do either of the following:
   1. Prohibit employers or other parties from entering into agreements or engaging in any other activity protected by the National Labor Relations Act, 29 U.S.C. §§ 151 to 169.
   2. Interfere with labor relations of parties that are left unregulated under the National Labor Relations Act, 29 U.S.C. §§ 151 to 169.

History

(2013-267, s. 1.)

Editor's Note. - Session Laws 2013-267, s. 2, made this section effective October 1, 2013, and applicable to all contracts awarded on or after that date.

§ 143-134. Applicable to Department of Transportation and Department of Public Safety; exceptions; all contracts subject to review by Attorney General and State Auditor.

1. This Article applies to the Department of Transportation and the Department of Public Safety except in the construction of roads, bridges and their approaches; provided however, that whenever the Director of the Budget determines that the repair or construction of a building by the Department of Transportation or by the Department of Public Safety can be done more economically through use of employees of the Department of Transportation and/or prison inmates than by letting the repair or building construction to contract, the provisions of this Article shall not apply to the repair or construction.
2. Notwithstanding subsection (a) of this section, the Department of Transportation and the Department of Public Safety shall: (i) submit all proposed contracts for supplies, materials, printing, equipment, and contractual services that exceed one million dollars ($1,000,000) to the Attorney General or the Attorney General's designee for review as provided in G.S. 114-8.3; and (ii) include in all contracts to be awarded by the Department of Transportation or the Department of Public Safety a standard clause providing that the State Auditor and internal auditors of the Department of Transportation or the Department of Public Safety may audit the records of the contractor during and after the term of the contract to verify accounts and data affecting fees and performance. Neither the Department of Transportation nor the Department of Public Safety shall award a cost plus percentage of cost agreement or contract for any purpose.

History

(1933, c. 400, s. 3-A; 1955, c. 572; 1957, c. 65, s. 11; 1967, c. 860; c. 996, s. 13; 1973, c. 507, s. 5; 1977, c. 464, s. 34; 2010-194, s. 24; 2011-145, s. 19.1(h); 2011-326, s. 15(y); 2012-83, s. 45; 2013-289, s. 1.)

Cross References. - As to legislation regarding construction of juvenile facilities, see the editor's note under G.S. 7B-1500.

Editor's Note. - See the editor's note regarding Session Laws 1987 (Reg. Sess., 1988), c. 1086, s. 123(b) and Session Laws 1989, c. 754, s. 28(a) under G.S. 143-132.

As to exemption of the Office of State Budget and Management from the requirements of this section in the administration and implementation of the Prison Facilities Legislative Bond Act of 1990, see Session Laws 1989 (Reg. Sess., 1990), c. 933, s. 6(4).

As to the exemption of the Office of State Budget and Management from the requirements of this section in providing prison facilities under the provisions of the State Prison and Youth Services Facilities Bond Act, see Session Laws 1989 (Reg. Sess., 1990), c. 935, s. 6(a)(4).

As to exemption of the Office of Management and Budget from the requirements of this section with respect to facilities authorized for the Department of Correction, see Session Laws 1991, c. 689, s. 239(f), as amended by Session Laws 1991 (Reg. Sess., 1992), c. 1044, s. 41(b), quoted under G.S. 143-64.10.

Session Laws 1993, c. 550, s. 6, effective July 1, 1993, provides that if the Secretary of Administration, after consultation with the Secretary of Correction, finds that the delivery of state prison and youth services facilities authorized to be constructed under that act must be expedited for good cause, the Office of State Construction of the Department of Administration may use alternative delivery systems and shall be exempt from several statutes, including this section, and rules implementing those statutes to the extent necessary to expedite delivery. Section 6 also sets out the provisions governing the exercise of the exemptions allowable and other relevant provisions.

As to the exemption of the Office of State Construction of the Department of Administration from the requirements of this section to the extent necessary to expedite delivery of certain prison facilities, see Session Laws 1994, Extra Session, c. 24, s. 67.

Session Laws 1995, c. 507, s. 27.10, provides that if the construction of prison facilities in Avery and Mitchell Counties must be expedited for good cause, as determined by the Secretary of Administration and Secretary of Correction, the Office of State Construction of the Department of Administration shall be exempt from the following statutes and rules to the extent necessary to expedite delivery: G.S. 143-135.26, 143-128, 143-129, 143-131, 143-132, 143-134, 113A-1 through 113A-10, 113A-50 through 113A-66, 133-1.1(g), and 143-408.1 through 143-408.7.

As to exemption of the Office of State Construction of the Department of Administration from this section and rules implementing this section, to the extent necessary to expedite delivery of juvenile facilities, see Session Laws 1998-202, s. 35(a), quoted under G.S. 143-128.

Effect of Amendments. - Session Laws 2010-194, s. 24, effective October 1, 2010, and applicable to all contracts proposed or awarded on or after that date, at the end of the section catchline, added "all contracts subject to review by Attorney General and State Auditor"; designated the previously existing provisions as subsection (a); and added subsection (b).

Session Laws 2011-145, s. 19.1(h), effective January 1, 2012, substituted "Divi