§§ 143-1 through 143-34.9: Repealed by Session Laws 2006-203, s. 1, effective July 1, 2007, and applicable to the budget for the 2007-2009 biennium and each subsequent biennium thereafter.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§ 143-34.10: Repealed by Session Laws 1981, c. 932, s. 1.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 Certain General Statutes provisions repealed effective July 1, 1979.

The following statutes are repealed effective July 1, 1979, (except for purposes of the winding-up period, as provided by section 5 of this act):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§§ 143-34.12 through 143-34.21: Repealed by Session Laws 1981, c. 932, s. 1.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§§ 143-34.40 through 143-34.45: Repealed by Session Laws 2006-203, s. 2, effective July 1, 2007, and applicable to the budget for the 2007-2009 biennium and each subsequent biennium thereafter.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 "Division of Adult Correction of the Department of Public Safety" for "Department of Correction" wherever it appears.

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

Session Laws 2012-83, s. 45, effective June 26, 2012, deleted "the Division of Adult Correction of" preceding "the Department of Public Safety" in subsection (b).

Session Laws 2013-289, s. 1, effective July 18, 2013, deleted "Division of Adult Correction of the" following "Transportation and" in the section heading; deleted "the Division of Adult Correction of" preceding "the Department of Public" throughout subsections (a) and (b); in subsection (a), substituted "applies" for "shall apply" and "the" for "such" preceding "repair"; and, in subsection (b), deleted "the provisions of" following "Notwithstanding" and substituted "providing" for "which provides" preceding "that the State Auditor."

§ 143-134.1. Interest on final payments due to prime contractors; payments to subcontractors.

1. On all public construction contracts which are let by a board or governing body of the State government or any political subdivision thereof, except contracts let by the Department of Transportation pursuant to G.S. 136-28.1, the balance due prime contractors shall be paid in full within 45 days after respective prime contracts of the project have been accepted by the owner, certified by the architect, engineer or designer to be completed in accordance with terms of the plans and specifications, or occupied by the owner and used for the purpose for which the project was constructed, whichever occurs first. However, when the architect or consulting engineer in charge of the project determines that delay in completion of the project in accordance with terms of the plans and specifications is the fault of the contractor, the project may be occupied and used for the purposes for which it was constructed without payment of any interest on amounts withheld past the 45 day limit. No payment shall be delayed because of the failure of another prime contractor on the project to complete his contract. Should final payment to any prime contractor beyond the date the contracts have been certified to be completed by the designer or architect, accepted by the owner, or occupied by the owner and used for the purposes for which the project was constructed, be delayed by more than 45 days, the prime contractor shall be paid interest, beginning on the 46th day, at the rate of one percent (1%) per month or fraction thereof unless a lower rate is agreed upon on the unpaid balance as may be due. In addition to the above final payment provisions, periodic payments due a prime contractor during construction shall be paid in accordance with the provisions of this section and the payment provisions of the contract documents that do not conflict with this section, or the prime contractor shall be paid interest on any unpaid amount at the rate stipulated above for delayed final payments. The interest shall begin on the date the payment is due and continue until the date on which payment is made. The due date may be established by the terms of the contract. Funds for payment of the interest on state-owned projects shall be obtained from the current budget of the owning department, institution, or agency. Where a conditional acceptance of a contract exists, and where the owner is retaining a reasonable sum pending correction of the conditions, interest on the reasonable sum shall not apply.
2. Within seven days of receipt by the prime contractor of each periodic or final payment, the prime contractor shall pay the subcontractor based on work completed or service provided under the subcontract. If any periodic or final payment to the subcontractor is delayed by more than seven days after receipt of periodic or final payment by the prime contractor, the prime contractor shall pay the subcontractor interest, beginning on the eighth day, at the rate of one percent (1%) per month or fraction thereof on the unpaid balance as may be due.
3. No retainage on periodic or final payments made by the owner or prime contractor shall be allowed on public construction contracts in which the total project costs are less than one hundred thousand dollars ($100,000). Retainage on periodic or final payments on public construction contracts in which the total project costs are equal to or greater than one hundred thousand dollars ($100,000) is allowed as follows:
   1. The owner shall not retain more than five percent (5%) of any periodic payment due a prime contractor.
   2. When the project is fifty percent (50%) complete, the owner, with written consent of the surety, shall not retain any further retainage from periodic payments due the contractor if the contractor continues to perform satisfactorily and any nonconforming work identified in writing prior to that time by the architect, engineer, or owner has been corrected by the contractor and accepted by the architect, engineer, or owner. If the owner determines the contractor's performance is unsatisfactory, the owner may reinstate retainage for each subsequent periodic payment application as authorized in this subsection up to the maximum amount of five percent (5%). The project shall be deemed fifty percent (50%) complete when the contractor's gross project invoices, excluding the value of materials stored off-site, equal or exceed fifty percent (50%) of the value of the contract, except the value of materials stored on-site shall not exceed twenty percent (20%) of the contractor's gross project invoices for the purpose of determining whether the project is fifty percent (50%) complete.
   3. A subcontract on a contract governed by this section may include a provision for the retainage on periodic payments made by the prime contractor to the subcontractor. However, the percentage of the payment retained: (i) shall be paid to the subcontractor under the same terms and conditions as provided in subdivision (2) of this subsection and (ii) subject to subsection (b3) of this section, shall not exceed the percentage of retainage on payments made by the owner to the prime contractor. Subject to subsection (b3) of this section, any percentage of retainage on payments made by the prime contractor to the subcontractor that exceeds the percentage of retainage on payments made by the owner to the prime contractor shall be subject to interest to be paid by the prime contractor to the subcontractor at the rate of one percent (1%) per month or fraction thereof.
   4. Within 60 days after the submission of a pay request and one of the following occurs, as specified in the contract documents, the owner with written consent of the surety shall release to the contractor all retainage on payments held by the owner: (i) the owner receives a certificate of substantial completion from the architect, engineer, or designer in charge of the project; or (ii) the owner receives beneficial occupancy or use of the project. However, the owner may retain sufficient funds to secure completion of the project or corrections on any work. If the owner retains funds, the amount retained shall not exceed two and one-half times the estimated value of the work to be completed or corrected. Any reduction in the amount of the retainage on payments shall be with the consent of the contractor's surety.
   5. The existence of any third-party claims against the contractor or any additive change orders to the construction contract shall not be a basis for delaying the release of any retainage on payments.
4. Full payment, less authorized deductions, shall also be made for those trades that have reached one hundred percent (100%) completion of their contract by or before the project is fifty percent (50%) complete if the contractor has performed satisfactorily. However, payment to the early finishing trades is contingent upon the owner's receipt of an approval or certification from the architect of record or applicable engineer that the work performed by the subcontractor is acceptable and in accordance with the contract documents. At that time, the owner shall reduce the retainage for such trades to five-tenths percent (0.5%) of the contract. Payments under this subsection shall be made no later than 60 days following receipt of the subcontractor's request or immediately upon receipt of the surety's consent, whichever occurs later. Early finishing trades under this subsection shall include structural steel, piling, caisson, and demolition. The early finishing trades for which line-item release of retained funds is required shall not be construed to prevent an owner or an owner's representative from identifying any other trades not listed in this subsection that are also allowed line-item release of retained funds. Should the owner or owner's representative identify any other trades to be afforded line-item release of retainage, the trade shall be listed in the original bid documents. Each bid document shall list the inspections required by the owner before accepting the work, and any financial information required by the owner to release payment to the trades, except the failure of the bid documents to contain this information shall not obligate the owner to release the retainage if it has not received the required certification from the architect of record or applicable engineer.
5. Notwithstanding subdivisions (2) and (3) of subsection (b1) of this section, and subsection (b2) of this section, following fifty percent (50%) completion of the project, the owner shall be authorized to withhold additional retainage from a subsequent periodic payment, not to exceed five percent (5%) as set forth in subdivision (1) of subsection (b1) of this section, in order to allow the owner to retain two and one-half percent (2.5%) total retainage through the completion of the project. In the event that the owner elects to withhold additional retainage on any periodic payment subsequent to release of retainage pursuant to subsection (b2) of this section, the general contractor may also withhold from the subcontractors remaining on the project sufficient retainage to offset the additional retainage held by the owner, notwithstanding the actual percentage of retainage withheld by the owner of the project as a whole.
6. Neither the owner's nor contractor's release of retainage on payments as part of a payment in full on a line-item of work under subsection (b2) of this section shall affect any applicable warranties on work done by the contractor or subcontractor, and the warranties shall not begin to run any earlier than either the owner's receipt of a certificate of substantial completion from the architect, engineer, or designer in charge of the project or the owner receives beneficial occupancy.
7. The State or any political subdivision of the State may allow contractors to bid on bonded projects with and without retainage on payments.
8. Nothing in subsections (b1), (b2), (b3), and (b4) of this section shall operate to prevent any agency or any political subdivision of the State from complying with the requirements of a federal contract or grant when the requirements of the federal contract or grant conflict with subsections (b1), (b2), (b3), or (b4) of this section. Each bid document must specify when federal preemption of this section shall apply.
9. Repealed by Session Laws 2007-365, s. 1, effective January 1, 2008.
10. Nothing in this section shall prevent the prime contractor at the time of application and certification to the owner from withholding application and certification to the owner for payment to the subcontractor for unsatisfactory job progress; defective construction not remedied; disputed work; third party claims filed or reasonable evidence that claim will be filed; failure of subcontractor to make timely payments for labor, equipment, and materials; damage to prime contractor or another subcontractor; reasonable evidence that subcontract cannot be completed for the unpaid balance of the subcontract sum; or a reasonable amount for retainage not to exceed the initial percentage retained by the owner.
11. Nothing in this section shall prevent the owner from withholding payment to the contractor in addition to the amounts authorized by this section for unsatisfactory job progress, defective construction not remedied, disputed work, or third-party claims filed against the owner or reasonable evidence that a third-party claim will be filed.

History

(1959, c. 1328; 1967, c. 860; 1979, c. 778; 1983, c. 804, ss. 1, 2; 2007-365, s. 1.)

Editor's Note. - This section, as amended by Session Laws 2007-365, s. 1, which amended subsection (a), added subsections (b1) through (b6) and (e), deleted subsection (e), and made minor stylistic changes, is effective January 1, 2008, and applicable to contracts entered into on or after that date.

Legal Periodicals. - For survey of North Carolina construction law, see 21 Wake Forest L. Rev. 633 (1986).

§ 143-134.2. Actions by contractor on behalf of subcontractor.

1. A contractor may, on behalf of a subcontractor of any tier under the contractor, file an action against an owner regarding a claim arising out of or relating to labor, materials, or services furnished by the subcontractor to the contractor pursuant to a contract between the subcontractor and the contractor for the same project that is the subject of the contract between the contractor and the owner.
2. In any action filed by a contractor against an owner under subsection (a) of this section, it shall not be a defense that the costs and damages at issue were incurred by a subcontractor and that subcontractor has not been paid for these costs and damages. The owner shall not be required to pay the contractor for the costs and damages incurred by a subcontractor, unless the subcontractor submits proof to the court that the contractor has paid these costs and damages to the subcontractor.

History

(1997-489, s. 1.)

§ 143-134.3. No damage for delay clause.

No contractual language forbidding or limiting compensable damages for delays caused solely by the owner or its agent may be enforced in any construction contract let by any board or governing body of the State, or of any institution of State government, or of any county, city, town, or other political subdivision thereof. For purposes of this section, the phrase "owner or its agent" does not include prime contractors or their subcontractors.

History

(1997-489, s. 1.)

§ 143-135. Limitation of application of Article.

1. Except for the provisions of G.S. 143-129 requiring bids for the purchase of apparatus, supplies, materials or equipment, this Article shall not apply to any of the following:
   1. Construction or repair work undertaken by the State (i) when the work is performed by duly elected officers or agents using force account qualified labor on the permanent payroll of the agency concerned and (ii) when either the total cost of the project, including without limitation all direct and indirect costs of labor, services, materials, supplies and equipment, does not exceed one hundred twenty-five thousand dollars ($125,000) or the total cost of labor on the project does not exceed fifty thousand dollars ($50,000).
   2. Construction or repair work undertaken by a subdivision of the State (i) when the work is performed by duly elected officers or agents using force account qualified labor on the permanent payroll of the agency concerned and (ii) when either the total cost of the project, including without limitation all direct and indirect costs of labor, services, materials, supplies and equipment, does not exceed five hundred thousand dollars ($500,000) or the total cost of labor on the project does not exceed two hundred thousand dollars ($200,000).
   3. Construction or repair work undertaken by The University of North Carolina and its constituent institutions (i) when the work is performed by duly elected officers or agents using force account qualified labor on the permanent payroll of the university and (ii) when either the total cost of the project, including, without limitation, all direct and indirect costs of labor, services, materials, supplies, and equipment, does not exceed two hundred thousand dollars ($200,000) or the total cost of labor on the project does not exceed one hundred thousand dollars ($100,000).
2. The force account work undertaken pursuant to this section shall be subject to the approval of the Director of the Budget in the case of State agencies, of the responsible commission, council, or board in the case of subdivisions of the State. Complete and accurate records of the entire cost of such work, including without limitation, all direct and indirect costs of labor, services, materials, supplies and equipment performed and furnished in the prosecution and completion thereof, shall be maintained by such agency, commission, council or board for the inspection by the general public. Construction or repair work undertaken pursuant to this section shall not be divided for the purposes of evading the provisions of this Article.

History

(1933, c. 552, ss. 1, 2; 1949, c. 1137, s. 2; 1951, c. 1104, s. 6; 1967, c. 860; 1975, c. 292, ss. 1, 2; c. 879, s. 46; 1979, 2nd Sess., c. 1248; 1981, c. 860, s. 13; 1995, c. 274, s. 1; 2007-322, s. 5; 2015-276, s. 6.)

Local Modification. - Ashe: 1959, c. 627; Avery: 1995, c. 175, s. 1; Beaufort: 1955, c. 1136; Brunswick: 1961, c. 503; Buncombe: 2009-76, s. 1 (As to certain streets in area of Buncombe County jail annex; expires July 1, 2010); Catawba: 2004-35 (expires December 30, 2006); 2007-1 (as to construction of Catawba County Blackburn Landfill, effective June 1 2007, expires December 1, 2008); Davie: 2005-32, ss. 1, 2 (as to expansion and improvement of Emergency Medical Services Station Number One); Duplin: 1983 (Reg. Sess., 1984), c. 959; 1985, c. 124; Franklin: 1957, c. 288; Halifax: 1957, c. 803; Macon: 1983, c. 355; McDowell: 1959, c. 553; Mecklenburg: 2009-250 (as to non-utility construction or repair work for park and greenway projects, effective July 2, 2009, expires June 30, 2012); New Hanover Northeast Interceptor Sewer Force Main projects: 2007-135, s. 2 (expires December 31, 2009); Pender: 1955, c. 187; Union: 1985 (Reg. Sess., 1986), c. 914, s. 1; Watauga: 1993 (Reg. Sess., 1994), c. 667, s. 1; (as to Anne Marie Drive Park) 2005-197, s. 7; (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); city of Asheboro: (as to Zoo City Park Project) 2008-55, s. 2(a) (expires December 31, 2010); city of Asheville: 2009-76, s. 1 (As to certain streets in area of Buncombe County jail annex; expires July 1, 2010); city of Belmont: 1967, c. 419; city of Gastonia: 1967, c. 392; city of Goldsboro: 1991, c. 555, s. 10; city of Lumberton: 1983 (Reg. Sess., 1984), c. 950; city of Marion: 1959, c. 553; city of Monroe: 1985, c. 128; 2000-35, s. 1; city of Wilmington Northeast Interceptor Sewer Force Main projects: 2007-135, s. 2 (expires December 31, 2009); city of Winston-Salem: (as to certain road and greenway projects) 2008-55, s. 1(a) (expires July 1, 2010); town of Boone: (as to Anne Marie Drive Park) 2005-197, s. 7; town of Booneville: 1993 (Reg. Sess., 1994), c. 667, s. 1; town of Chapel Hill: 2000-97, s. 1; town of Dallas: 2009-76, s. 2 (as to police department renovations; expires July 1, 2011); town of Wake Forest: 2003-32 (as to use of qualified labor on electrical distribution feeder circuits project for which construction on the first phase begins no later than December 31, 2003 and construction on the final phase commences no later than December 31, 2009, and as to use of qualified labor on Electrical Substation project for which construction on the first phase begins no later than December 31, 2006); town of Wilkesboro: 2007-44, s. 1 (as to the construction of a water pump station and the extension of a waterline to serve a Department of Transportation rest center to be built outside the corporate limits, and to the replacement of five sewer interceptor lines that will be installed, expires December 30, 2009); city of Fayetteville Public Works Commission: 2006-48, s. 1 (expires January 1, 2012); Macon County School Administrative Unit: 1983, c. 355.

Editor's Note. - 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 [which added the proviso at the end of the first sentence] applies to construction or repair work commenced on or after that date.

Session Laws 2015-276, s. 7, provides: "Sections 1 and 2 of this act become effective December 1, 2015, and apply to offenses committed on or after that date. The remainder of this act is effective when this act becomes law [October 20, 2015] and applies to offenses committed on or after that date. Prosecutions for offenses committed before the effective date of this act 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 2015-276, s. 6, effective October 20, 2015, rewrote the section. For applicability, see editor's note.

§ 143-135.1. State buildings exempt from county and municipal building requirements; consideration of recommendations by counties and municipalities.

1. Buildings constructed by the State of North Carolina or by any agency or institution of the State in accordance with plans and specifications approved by the Department of Administration or by The University of North Carolina or one of its affiliated or constituent institutions pursuant to G.S. 116-31.11 shall not be subject to inspection by any county or municipal authorities and shall not be subject to county or municipal building codes and requirements.
2. Inspection fees fixed by counties and municipalities shall not be applicable to such construction by the State of North Carolina. County and municipal authorities may inspect any plans or specifications upon their request to the Department of Administration or, with respect to projects under G.S. 116-31.11, The University of North Carolina, and any and all recommendations made by them shall be given consideration. Requests by county and municipal authorities to inspect plans and specifications for State projects shall be on the basis of a specific project. Should any agency or institution of the State require the services of county or municipal authorities, notice shall be given for the need of such services, and appropriate fees for such services shall be paid to the county or municipality; provided, however, that the application for such services to be rendered by any county or municipality shall have prior written approval of the Department of Administration, or with respect to projects under G.S. 116-31.11, The University of North Carolina.
3. Notwithstanding any law to the contrary, including any local act, no county or municipality may impose requirements that exceed the North Carolina State Building Code regarding the design or construction of buildings constructed by the State of North Carolina.

History

(1951, c. 1104, s. 4; 1967, c. 860; 1971, c. 563; 1985, c. 757, s. 170(a); 1997-412, s. 10; 2001-496, s. 8(c); 2005-300, s. 1.)

Editor's Note. - Session Laws 1997-412, s. 10, which amended this section, was reenacted by Session Laws 2001-496, s. 8(c). Session Laws 2001-496, s. 14, which provided that the amendments would expire December 31, 2006, was subsequently amended by Session Laws 2005-300, s. 1, to delete the expiration clause.

Effect of Amendments. - Session Laws 2001-496, s. 8(c), effective July 1, 2001, as amended by Session Laws 2005-300, s. 1, reenacted Session Laws 1997-412, s. 10, which added the subsection designations; inserted "or by The University of North Carolina or one of its affiliated or constituent institutions pursuant to G.S. 116-31.11" in subsection (a); in subsection (b) twice inserted "or, with respect to projects under G.S. 116-31.11, The University of North Carolina", and deleted "by the Department of Administration" following "consideration."

§ 143-135.2. Contracts for restoration of historic buildings with private donations.

This Article shall not apply to building contracts let by a State agency for restoration of a historic building or structure where the funds for the restoration of such building or structure are provided entirely by funds donated from private sources.

History

(1955, c. 27; 1967, c. 860.)

Local Modification. - Town of Farmville: 1987, c. 31.

§ 143-135.3. Adjustment and resolution of State board construction contract claim.

1. For purposes of this section, the following shall apply:
   1. "Board" shall mean the State of North Carolina or any board, bureau, commission, institution, or other agency of the State, as distinguished from a board or governing body of a subdivision of the State.
   2. "A contract for construction or repair work" shall mean any contract for the construction of buildings and appurtenances thereto, including, but not by way of limitation, utilities, plumbing, heating, electrical, air conditioning, elevator, excavation, grading, paving, roofing, masonry work, tile work and painting, and repair work as well as any contract for the construction of airport runways, taxiways and parking aprons, sewer and water mains, power lines, docks, wharves, dams, drainage canals, telephone lines, streets, site preparation, parking areas and other types of construction on which the Department of Administration or The University of North Carolina enters into contracts.
   3. "Contractor" shall include any person, firm, association or corporation which has contracted with a State board for architectural, engineering or other professional services in connection with construction or repair work as well as those persons who have contracted to perform such construction or repair work.
2. A contractor who has not completed a contract with a board for construction or repair work and who has not received the amount that contractor claims is due under the contract may submit a verified written claim to the Director of the Office of State Construction of the Department of Administration for the amount the contractor claims is due. The Director may deny, allow, or compromise the claim, in whole or in part. A claim under this subsection is not a contested case under Chapter 150B of the General Statutes.
3. A contractor who has completed a contract with a board for construction or repair work and who has not received the amount that contractor claims is due under the contract may submit a verified written claim to the Director of the Office of State Construction of the Department of Administration for the amount the contractor claims is due. The verified written claim shall be submitted within 60 days after the contractor receives a final statement of the board's disposition of the claim and shall state the factual basis for the claim.
4. A contractor who is dissatisfied with the Director's final written decision on a verified written claim, or any portion of a verified written claim, submitted under subsection (c) of this section may commence a contested case on the claim under Chapter 150B of the General Statutes. The contested case shall be commenced within 60 days of receiving the Director's written statement of the decision.
5. The verified written claim submitted under subsection (c) of this section shall be disposed of as follows:
   1. If the verified written claim was originally for an amount less than one hundred thousand dollars ($100,000), the Director shall investigate and issue a final written decision allowing or denying the verified written claim, in whole or in part, within 120 days of receipt of the contractor's verified written claim.
   2. If the verified written claim was originally for an amount of at least one hundred thousand dollars ($100,000) but less than five million dollars ($5,000,000), the Director shall investigate and issue a final written decision allowing or denying the verified claim, in whole or in part, within 180 days of receipt of the contractor's verified written claim.
   3. If the verified written claim was originally for an amount of five million dollars ($5,000,000) or more, the Director shall investigate and issue a final written decision allowing or denying the verified written claim, in whole or in part, within 270 days of receipt of the contractor's verified written claim.
6. Prior to the expiration of the time periods provided for in subsection (c2) of this section, the Director and contractor may, in writing, extend the time in which the Director shall issue a final written decision. The Director's failure to issue a final written decision as provided in subsection (c2) of this section, or at the expiration of the agreed-upon extended time, shall be deemed a denial of the portions of the verified written claim not previously compromised, and the contractor may seek relief on those portions of the verified written claim as provided in subsection (c1) or (d) of this section.
7. As to any portion of a verified written claim that is denied by the Director under subsection (c) of this section, the contractor may, in lieu of the procedures set forth in subsection (c1) of this section, within six months of receipt of the Director's final written decision, institute a civil action for the sum the contractor claims to be entitled to under the contract by filing a verified complaint and the issuance of a summons in the Superior Court of Wake County or in the superior court of any county where the work under the contract was performed. The procedure shall be the same as in all civil actions except that all issues shall be tried by the judge, without a jury.
8. The provisions of this section are part of every contract for construction or repair work made by a board and a contractor. A provision in a contract that conflicts with this section is invalid.

The contractor may appear before the Director, either in person or through counsel, to present facts and arguments in support of the verified written claim. The Director may allow, deny, or compromise the verified written claim, in whole or in part. The Director shall give the contractor a final written decision, as provided in subsection (c2) of this section, allowing or denying those portions of the contractor's claim that have not been previously compromised.

History

(1965, c. 1022; 1967, c. 860; 1969, c. 950, s. 1; 1973, c. 1423; 1975, c. 879, s. 46; 1981, c. 577; 1983, c. 761, s. 190; 1985, c. 746, s. 18; 1987, c. 847, s. 4; 1989, c. 40, s. 1; 1991, c. 103, s. 1; 1997-412, s. 7; 2001-496, s. 8(c); 2005-300, s. 1; 2019-39, s. 1.)

Editor's Note. - Session Laws 1997-412, s. 7, which amended this section, was reenacted by Session Laws 2001-496, s. 8(c). Session Laws 2001-496, s. 14, which provided that the amendments would expire December 31, 2006, was subsequently amended by Session Laws 2005-300, s. 1, to delete the expiration clause.

Session Laws 1997-412, s. 14, provides that the amendments by that act expire July 1, 2001.

Session Laws 2019-39, s. 3, made the amendment to this section by Session Laws 2019-39, s. 1, effective January 1, 2020, and applicable to verified claims submitted on or after that date.

Effect of Amendments. - Session Laws 2001-496, s. 8(c), effective July 1, 2001, as amended by Session Laws 2005-300, s. 1, reenacted Session Laws 1997-412, s. 10, which inserted "or The University of North Carolina" in subsection (a).

Session Laws 2019-39, s. 1, in subsection (a), added the introductory language, designated the previously existing provisions as subdivisions (a)(1), (a)(2), and (a)(3) and made related changes; rewrote subsection (c); substituted "final written decision on a verified written claim, or any portion of a verified written claim" for "decision on a claim" in the first sentence of subsection (c1); added subsections (c2) and (c3); and, in subsection (d), in the first sentence, inserted "verified written" and "under subsection (c) of this section"; and made stylistic changes. For effective date and applicability, see editor's note.

Legal Periodicals. - For note on abrogation of contractual sovereign immunity, see 12 Wake Forest L. Rev. 1082 (1976).

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

For survey of North Carolina construction law, see 21 Wake Forest L. Rev. 633 (1986).

For article, "North Carolina Construction Law Survey II," see 22 Wake Forest L. Rev. 481 (1987).

§ 143-135.4. Authority of Department of Administration not repealed.

Nothing contained in this Article shall be construed as contravening or repealing any authorities given by statute to the Department of Administration.

History

(1967, c. 860; 1975, c. 879, s. 46.)

§ 143-135.5. State policy; cooperation in promoting the use of small, minority, physically handicapped and women contractors; purpose.

1. It is the policy of this State to encourage and promote the use of small, minority, physically handicapped and women contractors in State construction projects. 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 and promote the use of small, minority, physically handicapped and women contractors in achieving the purpose of this Article, which is the effective and economical construction of public buildings.
2. It is the policy of this State not to accept bids or proposals from, nor to engage in business with, any business that, within the last two years, has been finally found by a court or an administrative agency of competent jurisdiction to have unlawfully discriminated on the basis of race, gender, religion, national origin, age, physical disability, or any other unlawful basis in its solicitation, selection, hiring, or treatment of another business.

History

(1983, c. 692, s. 1; 2001-496, s. 5.2.)

Local Modification. - City of Fayetteville: 2021-66, s. 1.

§ 143-135.6. Adjustment and resolution of community college board construction contract claim.

1. A contractor who has not completed a contract with a board of a community college for construction or repair work and who has not received the amount that contractor claims is due under the contract may follow the claims procedure in G.S. 143-135.3(b) that is available to a contractor who has contracted with a State board.
2. A contractor who has completed a contract with a board of a community college for construction or repair work and who has not received the amount that contractor claims is due under the contract may follow the same claims procedure in G.S. 143-135.3(c) through (d) that is available to a contractor who has contracted with a State board.
3. Repealed by Session Laws 2019-39, s. 2, effective January 1, 2020, and applicable to verified claims submitted on or after that date.
4. The provisions of this section are part of every contract for construction or repair work made by a board of a community college and a contractor. A provision in a contract that conflicts with this section is invalid.
5. For the purposes of this section, the following definitions shall apply, unless the context indicates otherwise:
   1. "Community college" has the same meaning as in G.S. 115D-2(2).
   2. "Contract for construction or repair work" has the same meaning as in G.S. 143-135.3(a).
   3. "Contractor" means any person, firm, association, or corporation which has contracted for architectural, engineering, or other professional services in connection with construction or repair work, as well as those persons who have contracted to perform the construction or repair work.
6. The provisions of this section are applicable only to community college buildings subject to G.S. 143-341(3).

History

(1989, c. 40, s. 2; 2019-39, s. 2.)

Editor's Note. - Session Laws 2019-39, s. 3, made the amendment to this section by Session Laws 2019-39, s. 2, effective January 1, 2020, and applicable to verified claims submitted on or after that date.

Effect of Amendments. - Session Laws 2019-39, s. 2, effective January 1, 2020, substituted "that contractor" for "he" in subsections (a) and (b); inserted "through (d)" following "G.S. 143.135.3(c)" in subsection (b); and deleted subsection (c). For effective date and applicability, see editor's note.

§ 143-135.7. Safety officers.

Each contract for a State capital improvement project, as defined in Article 8B of this Chapter, shall require the contractor to designate a responsible person as safety officer to inspect the project site for unsafe health and safety hazards, to report these hazards to the contractor for correction, and to provide other safety and health measures on the project site as required by the terms and conditions of the contract.

History

(1991 (Reg. Sess., 1992), c. 893, s. 3.)

§ 143-135.8. Prequalification.

1. Except as provided in this section, bidders may not be prequalified for any construction or repair work project.
2. A governmental entity may prequalify bidders for a particular construction or repair work project when all of the following apply:
   1. The governmental entity is using one of the construction methods authorized in G.S. 143-128(a1)(1) through G.S. 143-128(a1)(3).
   2. The board or governing body of the governmental entity adopts an objective prequalification policy applicable to all construction or repair work prior to the advertisement of the contract for which the governmental entity intends to prequalify bidders.
   3. The governmental entity has adopted 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.
3. The objective prequalification policy adopted by a governmental entity pursuant to subdivision (2) of subsection (b) of this section shall meet all of the following criteria:
   1. Must be uniform, consistent, and transparent in its application to all bidders.
   2. Must allow all bidders who meet the prequalification criteria to be prequalified to bid on the construction or repair work project.
   3. Clearly state the prequalification criteria, which must comply with all of the following:
      1. Be rationally related to construction or repair work.
      2. Not require that the bidder has previously been awarded a construction or repair project by the governmental entity.
      3. Permit bidders to submit history or experience with projects of similar size, scope, or complexity.
   4. Clearly state the assessment process of the criteria to be used.
   5. Establish a process for a denied bidder to protest to the governmental entity denial of prequalification, which process shall be completed prior to the opening of bids under G.S. 143-129(b) and which allows sufficient time for a bidder subsequently prequalified pursuant to a protest to submit a bid on the contract for which the bidder is subsequently prequalified.
   6. Outline a process by which the basis for denial of prequalification will be communicated in writing, upon request, to a bidder who is denied prequalification.
4. If the governmental entity opts to prequalify bidders, bids submitted by any bidder not prequalified shall be deemed nonresponsive. This subsection shall not apply to bidders initially denied prequalification that are subsequently prequalified pursuant to a protest under the governmental entity's prequalification policy.
5. Prequalification may not be used for the selection of any qualification-based services under Article 3D of this Chapter, G.S. 143-128.1A, G.S. 143-128.1B, G.S. 143-128.1C, or the selection of the construction manager at risk under G.S. 143-128.1.
6. For purposes of this section, the following definitions shall apply:
   1. Governmental entity. - As defined in G.S. 143-128.1B(a)(6).
   2. Prequalification. - A process of evaluating and determining whether potential bidders have the skill, judgment, integrity, sufficient financial resources, and ability necessary to the faithful performance of a contract for construction or repair work.

History

(1995, c. 367, s. 8; 2014-42, s. 1.)

Editor's Note. - Session Laws 2014-42, s. 10, made the amendment to this section by Session Laws 2014-42, s. 1, applicable to contracts awarded on or after October 1, 2014.

Effect of Amendments. - Session Laws 2014-42, s. 1, effective October 1, 2014, designated the existing provisions as subsection (a), and rewrote the subsection; and added subsections (b) through (f). See Editor's note for applicability.

§ 143-135.9. Best Value procurements.

1. Definitions. - The following definitions apply in this section:
   1. Best Value procurement. - The selection of a contractor based on a determination of which proposal offers the best trade-off between price and performance, where quality is considered an integral performance factor. The award decision is made based on multiple factors, including: total cost of ownership, meaning the cost of acquiring, operating, maintaining, and supporting a product or service over its projected lifetime; the evaluated technical merit of the vendor's proposal; the vendor's past performance; and the evaluated probability of performing the requirements stated in the solicitation on time, with high quality, and in a manner that accomplishes the stated business objectives and maintains industry standards compliance.
   2. Government-Vendor partnership. - A mutually beneficial contractual relationship between State government and a contractor, wherein the two share risk and reward, and value is added to the procurement of needed goods or services.
   3. Repealed by Session Laws 2013-188, s. 1, effective June 26, 2013.
   4. Solution-Based solicitation. - A solicitation in which the requirements are stated in terms of how the product or service being purchased should accomplish the business objectives, rather than in terms of the technical design of the product or service.
2. Intent. - The intent of Best Value procurement is to enable contractors to offer and the agency to select the most appropriate solution to meet the business objectives defined in the solicitation and to keep all parties focused on the desired outcome of a procurement.
3. Information Technology. - The acquisition of information technology by the State of North Carolina shall be conducted using the Best Value procurement method. For purposes of this section, business process reengineering, system design, and technology implementation may be combined into a single solicitation. For acquisitions which the procuring agency and the Division of Purchase and Contracts or the Department of Information Technology, as applicable, deem to be highly complex or determine that the optimal solution to the business problem at hand is not known, the use of Solution-Based Solicitation and Government-Vendor Partnership is authorized and encouraged. Any county, city, town, or subdivision of the State may acquire information technology pursuant to this section.
4. Repealed by Session Laws 2009-320, s. 1, effective July 24, 2009.
5. North Carolina Zoological Park. - The acquisition of goods and services under a contract entered pursuant to the exemption of G.S. 143-129.8A(a) by the Department of Natural and Cultural Resources on behalf of the North Carolina Zoological Park may be conducted using the Best Value procurement method. For acquisitions which the procuring agency deems to be highly complex, the use of Government-Vendor partnership is authorized.

History

(1998-189, s. 1; 1999-434, s. 15; 1999-456, s. 39; 2009-329, s. 1.2; 2013-188, s. 1; 2015-241, ss. 7A.4(u), 14.30(zz).)

Editor's Note. - The definitions in subsection (a) were placed in alphabetical order at the direction of the Revisor of Statutes.

Session Laws 2013-360, s. 7.7(a)-(c), provides: "(a) SCIO Review. - The State Chief Information Officer (State CIO) shall review all State information technology (IT) contracts and shall develop a plan to consolidate duplicate IT contracts and multiple IT contracts with the same vendor.

"(b) Bulk Purchasing. - The State CIO shall develop a plan to modify bulk purchasing contracts, while maintaining economies of scale, to provide agencies with the option of purchasing equipment on an 'as-needed' basis. By December 15, 2013, the State CIO shall provide the plan to the Joint Legislative Oversight Committee on Information Technology and the Fiscal Research Division. The State CIO may modify the plan based upon input from the Joint Legislative Oversight Committee on Information Technology and, following the review, shall begin implementation of the plan.

"(c) Sole Sourcing, Extensions, and Expansions Limited. - State IT contracts, including sole sourcing, extensions of the period of performance, or expansion of the scope of existing contracts, must receive the prior approval of the State CIO who may grant a specific exception. The State CIO shall immediately report any exceptions granted to the Joint Legislative Oversight Committee on Information Technology and the Fiscal Research Division. The report shall explain the reasons why the exception was deemed to be appropriate."

Session Laws 2013-360, s. 7.7(e), (f), provides: "(e) Enterprise Contracts. - The State CIO shall consult participating agency chief information officers and obtain approval from the Office of State Budget and Management prior to the initiation of any enterprise project or contract and shall ensure that enterprise project and contract costs are allocated to participating agencies in an equitable manner. Enterprise agreements shall not exceed the participating State agencies' ability to financially support the contracts.

"The State CIO shall not enter into any enterprise information technology contracts without obtaining written agreements from participating State agencies regarding the apportionment of the contract cost. State agencies agreeing to participate in a contract shall:

"(1) Ensure that sufficient funds are budgeted to support their agreed shares of enterprise contracts throughout the life of the contract.

"(2) Transfer the required funding to the Information Technology Internal Service Fund in sufficient time for the Office of Information Technology Services to meet vendor contract requirements.

"(f) Three-Year Contracts. - Notwithstanding the cash management provisions of G.S. 147-86.11, the Office of Information Technology Services may procure information technology goods and services for periods up to a total of three years where the terms of the procurement contracts require payment of all or a portion of the contract price at the beginning of the contract agreement. All of the following conditions shall be met before payment for these agreements may be disbursed:

"(1) Any advance payment can be accomplished within the IT Internal Service Fund budget.

"(2) The State Controller receives conclusive evidence that the proposed agreement would be more cost-effective than a multiyear agreement that complies with G.S. 147-86.11.

"(3) The procurement complies in all other aspects with applicable statutes and rules.

"(4) The proposed agreement contains contract terms that protect the financial interest of the State against contractor nonperformance or insolvency through the creation of escrow accounts for funds, source codes, or both, or by any other reasonable means that have legally binding effect.

"The Office of State Budget and Management shall ensure the savings from any authorized agreement shall be included in the IT Internal Service Fund rate calculations before approving annual proposed rates. Any savings resulting from the agreements shall be returned to agencies included in the contract in the form of reduced rates. Beginning October 1, 2013, ITS shall submit a quarterly written report of any authorizations granted under this section to the Joint Legislative Oversight Committee on Information Technology and the Fiscal Research Division."

Session Laws 2013-360, s. 7.7(g), as added by Session Laws 2014-100, s. 7.7, provides: "(g) Enhance State IT Contract Expertise. - The State Chief Information Officer (State CIO), the Office of State Human Resources, the Department of Computer Science at North Carolina State University, the Schools of Government and Law at the University of North Carolina at Chapel Hill, and in the discretion of the State CIO, schools and departments at other public and private institutions of higher learning in the State, shall work jointly to create a career path for State government information technology contracting professionals that includes defined qualifications, career progression, training opportunities, and appropriate compensation. By December 1, 2014, the State CIO shall submit a detailed, fully implementable plan to create the career path for State government information technology contracting professionals to the Joint Legislative Oversight Committee on Information Technology and the Fiscal Research Division."

Session Laws 2013-360, s. 7.8, as amended by Session Laws 2013-363, s. 2.3, provides: "Notwithstanding any provision of law to the contrary, no contract for information technology personal services, or that provides personnel to perform information technology functions, may be established or renewed without written approval from the Statewide Information Technology Procurement Office and the Office of State Budget and Management. To facilitate compliance with this requirement, the Statewide Information Technology Procurement Office shall develop and document the following:

"(1) Standards for determining whether it is more appropriate for an agency to hire an employee or use the services of a vendor.

"(2) A process to monitor all State agency personal services contracts, as well as any other State contracts providing personnel to perform information technology functions.

"(3) A process for obtaining approval of contractor positions.

"The Statewide Information Technology Procurement Office shall review current personal services contracts and determine if each contractor is performing a function that could more appropriately be performed by a State employee. Where the determination is made that a State employee should be performing the function, the Statewide Information Technology Procurement Office shall work with the impacted agency, the Office of State Budget and Management, and the Office of State Personnel to identify or create the position.

"Beginning October 1, 2013, the Statewide Information Technology Procurement Office shall report to the Joint Legislative Oversight Committee on Information Technology and the Fiscal Research Division on its progress toward standardizing information technology personal services contracts. In addition, the report shall include detailed information on the number of personal service contractors in each State agency, the cost for each, and the comparable cost (including benefits) of a State employee serving in that capacity rather than a contractor."

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.

Session Laws 2014-100, s. 1.1, provides: "This act shall be known as 'The Current Operations and Capital Improvements Appropriations Act of 2014.'"

Session Laws 2014-100, s. 38.4, provides: "Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2014-2015 fiscal year, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2014-2015 fiscal year."

Session Laws 2014-100, s. 38.7, is a severability clause.

Effect of Amendments. - Session Laws 2009-329, s. 1.2, effective July 24, 2009, rewrote the section catchline; in subsection (a), rewrote the introductory paragraph; in subdivision (a)(2), substituted "needed goods or services" for "complex technology" at the end; in subsection (b), added the subsection catchline, and deleted the former last sentence, which read: "Business process reengineering, system design, and technology implementation may be combined into a single solicitation."; in subsection (c), added the subsection catchline, and added the second and last sentences; deleted subsection (d), which read: "Any county, city, town or subdivision of the State may acquire information technology pursuant to this section."; and added subsection (e).

Session Laws 2013-188, s. 1, effective June 26, 2013, repealed subdivision (a)(3).

Session Laws 2015-241, s. 7A.4(u), effective September 18, 2015, substituted "Department of Information Technology" for "Office of Information Technology Services" near the middle of subsection (c).

Session Laws 2015-241, s. 14.30(zz), effective July 1, 2015, substituted "Department of Natural and Cultural Resources" for "Department of Environment and Natural Resources" in subsection (e).

§§ 143-135.10 through 143-135.24: Repealed by Session Laws 1987, c. 847, s. 5.

Cross References. - As to adjustment and resolution of Department of Transportation and state board contract claims, see now G.S. 136-29, 143-135.3.

Editor's Note. - Former sections 143-135.21 through 143-135.24 had been reserved for future codification purposes.

§ 143-135.25. State Building Commission - Creation; staff; membership; appointments; terms; vacancies; Chair; compensation.

1. A State Building Commission is created within the Department of Administration to develop procedures to direct and guide the State's capital facilities development and management program and to perform the duties created under this Article.
2. The State Construction Office of the Department of Administration shall provide staff to the State Building Commission. The Chair of the Commission shall provide direction to the State Construction Office on its work for the Commission.
3. The Commission shall consist of nine members qualified and appointed as follows:
   1. A licensed architect whose primary practice is or was in the design of buildings, chosen from among not more than three persons nominated by the North Carolina Chapter of the American Institute of Architects, appointed by the Governor.
   2. A registered engineer whose primary practice is or was in the design of engineering systems for buildings, chosen from among not more than three persons nominated by the Consulting Engineers Council and the Professional Engineers of North Carolina, appointed by the General Assembly upon the recommendation of the President Pro Tempore of the Senate in accordance with G.S. 120-121.
   3. A licensed building contractor whose primary business is or was in the construction of buildings, or an employee of a company holding a general contractor's license, chosen from among not more than three persons nominated by the Carolinas AGC (Associated General Contractors), appointed by the General Assembly upon the recommendation of the Speaker of the House of Representatives in accordance with G.S. 120-121.
   4. A licensed electrical contractor whose primary business is or was in the installation of electrical systems for buildings, chosen from among not more than three persons nominated by the North Carolina Association of Electrical Contractors, and the Carolinas Electrical Contractors' Association, appointed by the Governor.
   5. A public member appointed by the Governor.
   6. A licensed mechanical contractor whose primary business is or was in the installation of mechanical systems for buildings, chosen from among not more than three persons nominated by the Plumbing-Heating-Cooling Contractors of North Carolina, Inc., appointed by the Governor.
   7. An employee of the university system currently involved in the capital facilities development process, chosen from among not more than three persons nominated by the Board of Governors of The University of North Carolina, appointed by the Governor.
   8. A public member who is knowledgeable in the building construction or building maintenance area, appointed by the General Assembly upon the recommendation of the President Pro Tempore of the Senate in accordance with G.S. 120-121.
   9. A representative of local government, chosen from among not more than two persons nominated by the North Carolina Association of County Commissioners and two persons nominated by the North Carolina League of Municipalities, appointed by the General Assembly upon recommendation of the Speaker of the House of Representatives in accordance with G.S. 120-121.
4. The Commission shall meet at least four times a year on or about January 15, April 15, July 15, and October 15. The Commission shall also meet upon the call of the Chair, or upon call of at least five members. The Secretary of State shall call the first meeting within 30 days of the effective date of this act; the first order of business at the first meeting shall be the election of a Chair by the Commission.
5. Members of the Commission who are not State officers or employees shall receive per diem of one hundred dollars ($100.00) a day when the Commission meets and shall be reimbursed for travel and subsistence as provided in G.S. 138-5. Members who are State officers or employees shall be reimbursed for travel and subsistence as provided in G.S. 138-6.

The director of the State Construction Office shall be a registered engineer or licensed architect and shall be technically qualified by educational background and professional experience in building design, construction, or facilities management. The administrative head shall be appointed by the Secretary of the Department of Administration.

The members shall be appointed for staggered three-year terms: The initial terms of members appointed pursuant to subdivisions (1), (4), and (5) of this subsection shall expire June 30, 2020; the initial terms of members appointed pursuant to subdivisions (2), (3), and (6) of this subsection shall expire June 30, 2021; and the initial terms of members appointed pursuant to subdivisions (7), (8), and (9) of this subsection shall expire June 30, 2022. Members may serve no more than six consecutive years. In making new appointments or filling vacancies, the Governor shall ensure that minorities and women are represented on the Commission.

Members of the Commission may be removed pursuant to G.S. 143B-13(d).

Vacancies in appointments made by the Governor shall be filled by the Governor for the remainder of the unexpired terms. Vacancies in appointments made by the General Assembly shall be filled in accordance with G.S. 120-122. Persons appointed to fill vacancies shall qualify in the same manner as persons appointed for full terms.

The Chair of the Commission shall be elected by the Commission. The Secretary of State shall serve as Chair until a Chair is elected.

History

(1987, c. 71, s. 1; 1989, c. 42; 1991, c. 314, s. 1; 1991 (Reg. Sess., 1992), c. 893, s. 2; 1995, c. 367, s. 9; c. 490, s. 52; 1997-495, s. 85.1; 2019-32, s. 6.)

Editor's Note. - Session Laws 1995, c. 490, which amended this section by adding "Pro Tempore" in subdivisions (c)(2), (c)(5), and (c)(8), in s. 65 provides: "This act applies with respect to terms beginning on or after January 1, 1997, and to vacancies occurring on or after that date regardless of the date the term began."

Session Laws 2019-32, s. 7, provides: "This act becomes effective July 1, 2019. All rules, regulations, and decisions made by the predecessor boards and authorities reconstituted in this act shall remain in full force and effect until and unless duly modified by the successor entities."

Effect of Amendments. - Session Laws 2019-32, s. 6, substituted "Chair" for "chairman" throughout the section; rewrote subdivisions (c)(5) and (c)(6); rewrote the first paragraph following subdivision (c)(9); and added the second undesignated paragraph. For effective date and applicability, see editor's note.

§ 143-135.26. Powers and duties of the Commission.

The State Building Commission shall have the following powers and duties with regard to the State's capital facilities development and management program:

1. To adopt rules establishing standard procedures and criteria to assure that the designer selected for each State capital improvement project, the consultant selected for planning and studies of an architectural and engineering nature associated with a capital improvement project or a future capital improvement project and a construction manager at risk selected for each capital improvement project has the qualifications and experience necessary for that capital improvement project or the proposed planning or study project. The rules shall provide that the State Building Commission, after consulting with the funded agency, is responsible and accountable for the final selection of the designer, consultant or construction manager at risk except when the General Assembly or The University of North Carolina is the funded agency. When the General Assembly is the funded agency, the Legislative Services Commission is responsible and accountable for the final selection of the designer, consultant, or the construction manager at risk and when the University is the funded agency, it shall be subject to the rules adopted hereunder, except it is responsible and accountable for the final selection of the designer, consultant, or construction manager at risk. All designers and consultants shall be selected within 60 days of the date funds are appropriated for a project by the General Assembly or the date of project authorization by the Director of the Budget; provided, however, the State Building Commission may grant an exception to this requirement upon written request of the funded agency if (i) no site was selected for the project before the funds were appropriated or (ii) funds were appropriated for advance planning only; provided, further, the Director of the Budget, after consultation with the State Construction Office, may waive the 60-day requirement for the purpose of minimizing project costs through increased competition and improvements in the market availability of qualified contractors to bid on State capital improvement projects. The Director of the Budget also may, after consultation with the State Construction Office, schedule the availability of design and construction funds for capital improvement projects for the purpose of minimizing project costs through increased competition and improvements in the market availability of qualified contractors to bid on State capital improvement projects.
2. To adopt rules for coordinating the plan review, approval, and permit process for State capital improvement and community college buildings, as defined in subdivision (4) of this section. The rules shall provide for a specific time frame for plan review and approval and permit issuance by each agency, consistent with applicable laws. The time frames shall be established to provide for expeditious review, approval, and permitting of State capital improvement projects and community college buildings. To further expedite the plan review, approval, and permit process, the State Building Commission shall develop a standard memorandum of understanding to be executed by the funded agency and all reviewing agencies for each State capital improvement project. The memorandum of understanding, at minimum, shall include provisions for establishing:
   1. The type and frequency of plan reviews.
   2. The submittal dates for each plan review.
   3. The estimated plan review time for each review and reviewing agency.
   4. A schedule of meeting dates.
3. To adopt rules exempting specified types of State capital improvement projects, including community college buildings as defined in subdivision (4) of this section, from plan review.
4. To adopt rules for establishing a post-occupancy evaluation, annual inspection and preventive maintenance program for all State buildings.
5. To develop procedures for evaluating the work performed by designers and contractors on State capital improvement projects and those community college buildings, as defined in G.S. 143-336, requiring the estimated expenditure for construction or repair work for which public bidding is required under G.S. 143-129, and for use of the evaluations as a factor affecting designer selections and determining qualification of contractors to bid on State capital improvement projects and community college buildings.
6. To continuously study and recommend ways to improve the effectiveness and efficiency of the State's capital facilities development and management program.
7. To request designers selected prior to April 14, 1987, whose plans for the projects have not been approved to report to the Commission on their progress on the projects. The Department of Administration shall provide the Commission with a list of all such projects.
8. To appoint an advisory board, if the Commission deems it necessary, to assist the Commission in its work. No one other than the Commission may appoint an advisory board to assist or advise it in its work.
9. To review the State's provisions for ensuring the safety and health of employees involved with State capital improvement projects, and to recommend to the appropriate agencies and to the General Assembly, after consultation with the Commissioner of Labor, changes in the terms and conditions of construction contracts, State regulations, or State laws that will enhance employee safety and health on these projects.
10. To authorize a State agency, a local governmental unit, or any other entity subject to the provisions of G.S. 143-129 to use a method of contracting not authorized under G.S. 143-128. An authorization under this subdivision for an alternative contracting method shall be granted only under the following conditions:
    1. An authorization shall apply only to a single project.
    2. The entity seeking authorization must demonstrate to the Commission that the alternative contracting method is necessary because the project cannot be reasonably completed under the methods authorized under G.S. 143-128 or for such other reasons as the Commission, pursuant to its rules and criteria, deems appropriate and in the public's interest.
    3. The authorization must be approved by a majority of the members of the Commission present and voting.
11. To adopt rules governing review and final approval of plans that are submitted to the State Construction Office pursuant to G.S. 58-31-40. The rules shall provide for the manner of submission of the plan by the owner, the type of structural work that may be completed by the owner pursuant to G.S. 58-31-40(c), and the expeditious review or completion of review of the plan in a manner that ensures that the building will meet the fire safety requirements of G.S. 58-31-40(b).
12. To develop dispute resolution procedures, including mediation, for subcontractors under any of the construction methods authorized under G.S. 143-128(a1) on State capital improvement projects, including building projects of The University of North Carolina, and community college buildings as defined in subdivision (4) of this section, for use by any public entity that has not developed its own dispute resolution process.
13. To adopt rules governing the use of open-end design agreements for State capital improvement projects and community college buildings as defined in subdivision (4) of this section, where the expenditure of public money does not exceed the amount specified in G.S. 143-64.34(b) or (c).
14. To submit an annual report of its activities to the Governor and the Joint Legislative Commission on Governmental Operations.

The State Building Commission shall submit a written report to the Joint Legislative Commission on Governmental Operations on the Commission's selection of a designer for a project within 30 days of selecting the designer.

b1. The entity includes in its bid or proposal requirements that the contractor will file a plan for making a good faith effort to reach the minority participation goal set out in G.S. 143-128.2.

The Commission shall not waive the requirements of G.S. 143-129 or G.S. 143-132 for public contracts unless otherwise authorized by law.

History

(1987, c. 71, s. 1; c. 721, s. 2; c. 830, s. 79(a); 1989, c. 50; 1989 (Reg. Sess., 1990), c. 889; 1991 (Reg. Sess., 1992), c. 893, s. 1; 1993, c. 561, s. 29; 1995, c. 367, s. 10; 1996, 2nd Ex. Sess., c. 18, s. 10.1; 2001-496, s. 11; 2005-370, s. 2; 2007-446, s. 4.)

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 1991 Session Laws (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 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 2007-446, provides in its preamble: "Whereas, delays in the completion of State capital improvement projects that occur during designer selection, the construction plan review process, construction, and the construction inspection process can result in millions of dollars in increased construction costs due to inflation; and

"Whereas, the State Building Commission was created within the Department of Administration to direct and guide the State's capital facilities development and management program; and

"Whereas, the State Building Commission has the responsibility for establishing the criteria for and overseeing designer selection for State facilities, adopting rules, coordinating the plan review, approval, and permit process for State capital improvements, and studying and recommending ways to improve the effectiveness and efficiency of the State's capital facilities development and management program; and

"Whereas, greater clarity, coordination, and accountability among the agencies responsible for the examination of plans and specifications for the construction and renovation of State facilities and for the construction insp7ections of those facilities, the owning agencies/institutions as defined in the State Construction Manual, designers, and contractors could reduce these delays and facilitate the timely completion of such projects resulting in significant dollar savings to the State; and

"Whereas, the influx of project reviews occasioned by the 2000 Higher Education Bond Act created serious workload and resource issues for the State Construction Office and the Department of Insurance; and

"Whereas, costly delays in the plan review and inspections process for State construction projects are occurring in part due to the inability of the State to attract qualified architects and engineers to conduct such reviews and inspections, and there are no plans at this time for a State Personnel Office market study of architect and engineering positions; Now, therefore,

"The General Assembly of North Carolina enacts:"

Session Laws 2007-446, s. 1, provides: "The State Building Commission shall examine the State capital improvement process and shall establish or modify, as necessary, the guidelines for the selection of designers and the rules governing the design, plan review, and inspection of State building projects. In carrying out its examination and proposing and modifying its guidelines and rules, the Commission shall consult with all of the State departments involved in the capital improvement process, including (i) the agencies responsible for the examination of plans and specifications for the construction and renovation of State facilities and for the supervision and inspection of all work done and materials used in the construction or renovation of State facilities (review and inspection agencies), (ii) the owning agencies/institutions as defined in the State Construction Manual (owning agencies), (iii) the Board of Governors of The University of North Carolina, and (iv) the State Board of Community Colleges. In carrying out the provisions of this section, the Commission shall:

"(1) Examine the State Construction Manual for opportunities to increase the accountability of all parties to the State capital improvement process.

"(2) Determine whether the review and inspection agencies have sufficiently formalized and documented their review standards and processes.

"(3) Oversee the proper documentation of review standards and processes where necessary.

"(4) Facilitate the establishment of clear expectations for all parties to the process, including the owning agencies, review and inspection agencies, designers, and contractors. The Commission shall work with owning agencies and review and inspection agencies to develop a standard set of time measurements for the design process and the construction process and shall consider the development of other standard measures of performance for all the parties to the design, review, inspection, and construction process.

"(5) Review the State's standard design contract for opportunities to strengthen the accountability of design firms to the owning agencies. In particular, the Commission shall consider the inclusion of a designer's e-mail address as a requirement of the standard design contract."

This section, as amended by Session Laws 2007-446, s. 4, effective August 23, 2007, which added the last two sentences in subsection (2), is applicable to projects that are funded on or after July 1, 2007.

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.

Subsection (c) of G.S. 58-31-40, referred to in subdivision (10), was repealed by Session Laws 2009-474, s. 1, effective October 1, 2009.

Effect of Amendments. - Session Laws 2005-370, s. 2, effective October 1, 2005, in subdivision (12), substituted "expenditure of public money" for "fee" and "G.S. 143.64.34(b) or (c)" for "G.S. 143.64.34(b)."

Session Laws 2007-446, s. 4, effective August 23, 2007, and applicable to projects that are funded on or after July 1, 2007, in subdivision (2), added the last two sentences to the introductory paragraph, and added subdivisions (2)a through (2)d.

§ 143-135.27. Definition of capital improvement project.

As used in this Article, "State capital improvement project" means the construction of and any alteration, renovation, or addition to State buildings, as defined in G.S. 143-336, for which State funds, as defined in G.S. 143C-1-1, are used and which is required by G.S. 143-129 to be publicly advertised.

History

(1987, c. 71, s. 1; 2001-442, s. 4; 2006-203, s. 87; 2008-195, s. 11.)

Editor's Note. - Session Laws 2001-442, s. 8, provided that the amendment by Session Laws 2001-442, s. 4, which added the second sentence, would expire October 1, 2006. Session Laws 2008-195, s. 11, effective retroactively to October 1, 2006, amended Session Laws 2001-442, s. 8, to make the 2001 amendment expire October 1, 2011. This section is set out above as it appears following the expiration of the second sentence on October 1, 2011.

§ 143-135.28. Conflict of interest.

If any member of the Commission shall be interested either directly or indirectly, or shall be an officer or employee of or have an ownership interest in any firm or corporation interested directly or indirectly, in any contract authorized by the Commission, that interest shall be disclosed to the Commission and set forth in the minutes of the Commission, and the member having the interest may not participate on behalf of the Commission in the authorization of that contract.

History

(1987, c. 71, s. 1.)

§ 143-135.29. Review of Military Lands Protection Act proposals.

The State Construction Office shall maintain, and make available to the public, accurate maps of areas surrounding major military installations, including Military Training Routes and Military Operating Areas, as defined in G.S. 143-151.71, that are subject to the provisions of Article 9G of Chapter 143 of the General Statutes.

History

(2014-79, s. 1.)

Editor's Note. - Session Laws 2014-79, s. 9(b), made this section effective July 22, 2014, and applicable to meetings held or on after that date.

§§ 143-135.30 through 143-135.34: Reserved for future codification purposes.

§ 143-135.35. Findings; legislative intent.

The General Assembly finds that public buildings can be built and renovated using sustainable, energy-efficient methods that save money, reduce negative environmental impacts, improve employee and student performance, and make employees and students more productive. The main objectives of sustainable, energy-efficient design are to avoid resource depletion of energy, water, and raw materials; prevent environmental degradation caused by facilities and infrastructure throughout their life cycle; and create buildings that are livable, comfortable, safe, and productive. It is the intent of the General Assembly that State-owned buildings and buildings of The University of North Carolina and the North Carolina Community College System be improved by establishing specific performance standards for sustainable, energy-efficient public buildings. These performance standards should be based upon recognized, consensus standards that are supported by science and have a demonstrated performance record. The General Assembly also intends, in order to ensure that the economic and environmental objectives of this Article are achieved, that State agencies, The University of North Carolina, and the North Carolina Community College System determine whether the performance standards are met for major facility construction and renovation projects, measure utility and maintenance costs, and verify whether these standards result in savings. Also, it is the intent of the General Assembly to establish a priority to use North Carolina-based resources, building materials, products, industries, manufacturers, and businesses to provide economic development to North Carolina and to meet the objectives of this Article.

History

(2008-203, s. 1.)

Editor's Note. - Session Laws 2008-203, s. 7, made this Article effective August 8, 2008, and applicable to every major facility construction project, as defined in G.S. 143-135.36, and every major facility renovation project, as defined in G.S. 143-135.36, of a public agency, as defined in G.S. 143-135.36, that has not entered the schematic design phase prior to August 8, 2008.

§ 143-135.36. Definitions.

As used in this section, the following definitions apply unless the context requires otherwise:

1. "ASHRAE" means the American Society of Heating, Refrigerating and Air-Conditioning Engineers, Inc.
2. "Commission" means to document and to verify throughout the construction process whether the performance of a building, a component of a building, a system of a building, or a component of a building system meets specified objectives, criteria, and agency project requirements.
3. "Department" means the Department of Administration.
4. "Institutions of higher education" means the constituent institutions of The University of North Carolina, the regional institutions as defined in G.S. 115D-2, and the community colleges as defined in G.S. 115D-2.
5. "Major facility construction project" means a project to construct a building larger than 20,000 gross square feet of occupied or conditioned space, as defined in the North Carolina State Building Code adopted under Article 9 of Chapter 143 of the General Statutes. "Major facility construction project" does not include a project to construct a transmitter building or a pumping station.
6. "Major facility renovation project" means a project to renovate a building when the cost of the project is greater than fifty percent (50%) of the insurance value of the building prior to the renovation and the renovated portion of the building is larger than 20,000 gross square feet of occupied or conditioned space, as defined in the North Carolina State Building Code. "Major facility renovation project" does not include a project to renovate a transmitter building or a pumping station. "Major facility renovation project" does not include a project to renovate a building having historic, architectural, or cultural significance under Part 4 of Article 2 of Chapter 143B of the General Statutes.
7. "Public agency" means every State office, officer, board, department, and commission and institutions of higher education.
8. "Weather-based irrigation controller" means an irrigation control device that utilizes local weather and landscape conditions to tailor irrigation system schedules to irrigation needs specific to site conditions.

History

(2008-203, s. 1; 2011-394, s. 8(a).)

Effect of Amendments. - Session Laws 2011-394, s. 8(a), effective July 1, 2011, added subdivision (8).

§ 143-135.37. Energy and water use standards for public major facility construction and renovation projects; verification and reporting of energy and water use.

1. Program Established. - The Sustainable Energy-Efficient Buildings Program is established within the Department to be administered by the Department. This program applies to any major facility construction or renovation project of a public agency that is funded in whole or in part from an appropriation in the State capital budget or through a financing contract as defined in G.S. 142-82.
2. Net Savings Required. - The requirements of this section apply to a major facility construction or renovation project only if the Department determines that the application of the requirements to the project will result in an anticipated net savings. There is an anticipated net savings if the cost of construction or renovation in accordance with the requirements of this section plus the estimated operating costs for the first 10 years post-construction would be less than the cost of construction or renovation if the project were not subject to the requirements of this section plus the estimated operating costs for the first 10 years post-construction. All third-party certification costs before and after construction or renovation shall be included in determining construction and operating costs. Renovation projects that will include guaranteed energy savings contracts, as defined by G.S. 143-64.17, and executed in accordance with the provisions of Part 2 of Article 3B of Chapter 143 of the General Statutes, are exempt from the requirements of this subsection.
3. Energy-Efficiency Standard. - For every major facility construction project of a public agency, the building shall be designed and constructed so that the calculated energy consumption is at least thirty percent (30%) less than the energy consumption for the same building as calculated using the energy-efficiency standard in ASHRAE 90.1-2004. For every major facility renovation project of a public agency, the renovated building shall be designed and constructed so that the calculated energy consumption is at least twenty percent (20%) less than the energy consumption for the same renovated building as calculated using the energy-efficiency standard in ASHRAE 90.1-2004. For the purposes of this subsection, any exception or special standard for a specific type of building found in ASHRAE 90.1-2004 is included in the ASHRAE 90.1-2004 standard.
4. Indoor Potable Water Use Standard. -  For every major facility construction or renovation project of a public agency, the water system shall be designed and constructed so that the calculated indoor potable water use is at least twenty percent (20%) less than the indoor potable water use for the same building as calculated using the fixture performance requirements related to plumbing under the 2006 North Carolina State Building Code.
5. Outdoor Potable Water Use Standard. - For every major facility construction project of a public agency, the water system shall be designed and constructed so that the calculated sum of the outdoor potable water use and the harvested stormwater use is at least fifty percent (50%) less than the sum of the outdoor potable water use and the harvested stormwater use for the same building as calculated using the performance requirements related to plumbing under the 2006 North Carolina State Building Code. Weather-based irrigation controllers shall be used for irrigation systems for major facility construction projects. For every major facility renovation project of a public agency, the Department shall determine on a project-by-project basis what reduced level of outdoor potable use or harvested stormwater use, if any, is a feasible requirement for the project. The Department shall not require a greater reduction than is required under this subsection for a major facility construction project. To reduce the potable outdoor water as required under this subsection, weather-based irrigation controllers, landscape materials that are water use efficient, and irrigation strategies that include reuse and recycling of the water may be used.
6. Performance Verification. - In order to be able to verify performance of a building component or an energy or water system component, the construction contract shall include provisions that require each building component and each energy and water system component to be commissioned, and these provisions shall be included at the earliest phase of the construction process as possible and in no case later than the schematic design phase of the project. Such commissioning shall continue through the initial operation of the building. The project design and construction teams and the public agency shall jointly determine what level of commissioning is appropriate for the size and complexity of the building or its energy and water system components.
7. Separate Utility Meters. - In order to be able to monitor the initial cost and the continuing costs of the energy and water systems, a separate meter for each electricity, natural gas, fuel oil, and water utility shall be installed at each building undergoing a major facility construction or renovation project. Each meter shall be installed in accordance with the United States Department of Energy guidelines issued under section 103 of the Energy Policy Act of 2005 (Pub. L. 109-58, 119 Stat. 594 (2005)). Starting with the first month of facility operation, the public agency shall compare data obtained from each of these meters by month and by year with the applicable energy-efficiency standard under subsection (b) of this section and the applicable water use standard for the project under subsection (c) of this section and report annually no later than August 1 of each year to the Office of State Construction within the Department. If the average energy use or the average water use over the initial 12-month period of facility operation exceeds the applicable energy-efficiency standard under subsection (b) of this section or exceeds the applicable water use standard under subsection (c) of this section by fifteen percent (15%) or more, the public agency shall investigate the actual energy or water use, determine the cause of the discrepancy, and recommend corrections or modifications to meet the applicable standard.
8. Locally Sourced Materials. - To achieve sustainable building standards as required by this section, a major facility construction or renovation project may utilize a building rating system so long as the rating system (i) provides certification credits for, (ii) provides a preference to be given to, (iii) does not disadvantage, and (iv) promotes building materials or furnishings, including masonry, concrete, steel, textiles, or wood that are manufactured or produced within the State.

History

(2008-203, s. 1; 2011-394, s. 8(b); 2013-242, s. 1.)

Editor's Note. - Session Laws 2013-242, s. 2, made subsections (a1) and (f), as added by Session Laws 2013-242, s. 1, applicable to construction and renovation projects for which the bidding process is initiated on or after October 1, 2013.

Effect of Amendments. - Session Laws 2011-394, s. 8(b), effective July 1, 2011, divided former subsection (c) into present subsections (c) and (c1); added "Indoor Potable" in the subsection (c) catchline; and in subsection (c1), added the subsection catchline, added the second sentence, divided the former third sentence into the third and fourth sentences by substituting the period for "but," and in the last sentence, inserted "weather-based irrigation controllers" and made a minor stylistic change. For applicability, see Editor's note.

Session Laws 2013-242, s. 1, effective October 1, 2013, added subsections (a1) and (f). For applicability, see editor's note.

§ 143-135.38. Use of other standard when standard not practicable.

When the Department, public agency, and the design team determine that the energy-efficiency standard or the water use standard required under G.S. 143-135.37 is not practicable for a major facility construction or renovation project, then it must be determined by the State Building Commission if the standard is not practicable for the major facility construction or renovation project. If the State Building Commission determines the standard is not practicable for that project, the State Building Commission shall determine which standard is practicable for the design and construction for that major facility construction or renovation project. If a standard required under G.S. 143-135.37 is not followed for that project, the State Building Commission shall report this information and the reasons to the Department within 90 days of its determination.

History

(2008-203, s. 1.)

§ 143-135.39. Guidelines for administering the Sustainable Energy-Efficient Buildings Program.

1. Policies and Technical Guidelines. - The Department, in consultation with public agencies, shall develop and issue policies and technical guidelines to implement this Article for public agencies. The purpose of these policies and guidelines is to establish procedures and methods for complying with the energy-efficiency standard or the water use standard for major facility construction and renovation projects under G.S. 143-135.37.
2. Preproposal Conference. - As provided in the request for proposals for construction services, the public agency may hold a preproposal conference for prospective bidders to discuss compliance with, and achievement of, the energy-efficiency standard or the water use standard required under G.S. 143-135.37 for prospective respondents.
3. Advisory Committee. - The Department shall create a sustainable, energy-efficient buildings advisory committee comprised of representatives from the design and construction industry involved in public works contracting, personnel from the public agencies responsible for overseeing public works projects, and others at the Department's discretion to provide advice on implementing this Article. Among other duties, the advisory committee shall make recommendations regarding the education and training requirements under subsection (d) of this section, make recommendations regarding specific education and training criteria that are appropriate for the various roles with respect to, and levels of involvement in, a major facility construction or renovation project subject to this Article or the roles regarding the operation and maintenance of the facility, and make recommendations regarding developing a process whereby the Department receives ongoing evaluations and feedback to assist the Department in implementing this Article so as to effectuate the purpose of this Article. Further, the advisory committee may make recommendations to the Department regarding whether it is advisable to strengthen standards for energy efficiency or water use under this Article, whether it is advisable and feasible to add additional criteria to achieve greater sustainability in the construction and renovation of public buildings, or whether it is advisable and feasible to expand the scope of this Article to apply to additional types of publicly financed buildings or to smaller facility projects.
4. Education and Training Requirements. - The Department shall review the advisory committee's recommendations under subsection (c) of this section regarding education and training. For each of the following, the Department shall develop education and training requirements that are consistent with the purpose of this Article and that are appropriate for the various roles with respect to, and level of involvement in, a major facility construction or renovation project or the roles regarding the operation and maintenance of the facility:
   1. The chief financial officers of public agencies.
   2. For each public agency that is responsible for the payment of the agency's utilities, the facility managers of these public agencies.
   3. The capital project coordinators of public agencies.
   4. Architects.
   5. Mechanical design engineers.
5. Performance Review. - Annually the Department shall conduct a performance review of the Sustainable Energy-Efficient Buildings Program. The performance review shall include at least all of the following:
   1. Identification of the costs of implementing energy-efficiency and water use standards in the design and construction of major facility construction and renovation projects subject to this Article.
   2. Identification of operating savings attributable to the implementation of energy-efficiency and water use standards, including, but not limited to, savings in utility and maintenance costs.
   3. Identification of any impacts on employee productivity from using energy-efficiency and water use standards.
   4. Evaluation of the effectiveness of the energy-efficiency and water use standards established by this Article.
   5. Whether stricter standards or additional criteria for sustainable buildings should be used other than the standards under G.S. 143-135.37.
   6. Whether the Sustainable Energy-Efficient Buildings Program should be expanded to include additional public agencies, to include additional types of projects, or to include smaller major facility construction or renovation projects.
   7. Any recommendations for any other changes regarding sustainable, energy-efficient building standards that may be supported by the Department's findings.
6. , (g)  Repealed by Session Laws 2017-10, s. 4.2(a), effective May 4, 2017.
7. Authority to Adopt Rules or Architectural or Engineering Standards. - The Department may adopt rules to implement this Article. The Department may adopt architectural or engineering standards as needed to implement this Article.

History

(2008-203, s. 1; 2017-10, s. 4.2(a).)

Effect of Amendments. - Session Laws 2017-10, s. 4.2(a), effective May 4, 2017, deleted former subsections (f) and (g).

§ 143-135.40. Monitor construction standards and sustainable building standards.

1. The Department shall monitor the development of construction standards and sustainable building standards to determine whether there is any standard that the Department determines would better fulfill the intent of the Sustainable Energy-Efficient Buildings Program to achieve sustainable, energy-efficient public buildings than the standards under G.S. 143-135.37, and, if so, whether this Article should be amended to provide for the use of any different standards or the use of any additional standards to address additional aspects of sustainable, energy-efficient buildings. Additional standards monitored shall address consideration of site development, material and resource selection, and indoor environmental quality to enhance the health or productivity of building occupants. Also, the Department shall monitor the development of improved energy-efficiency standards developed by the American Society of Heating, Refrigerating and Air-Conditioning Engineers, the ASHRAE standards, shall monitor whether the State Building Code Council adopts any other energy-efficiency standards for inclusion in the State Building Code that result in greater energy efficiency and increased energy savings in major facility construction and renovation projects under this Article, and shall monitor other standards for sustainable, energy-efficient buildings that are based upon recognized, consensus standards based on science and demonstrated performance.
2. Repealed by Session Laws 2017-10, s. 4.2(b), effective May 4, 2017.

History

(2008-203, s. 1; 2017-10, s. 4.2(b).)

Effect of Amendments. - Session Laws 2017-10, s. 4.2(b), effective May 4, 2017, deleted former subsection (b).

§ 143-136. Building Code Council created; membership, committees.

1. Creation; Membership; Terms. - There is hereby created a Building Code Council, which shall be composed of 17 members appointed by the Governor, consisting of the following:
   1. Two licensed architects.
   2. One licensed general contractor.
   3. One licensed general contractor specializing in residential construction.
   4. One licensed general contractor specializing in coastal residential construction.
   5. One licensed engineer practicing structural engineering.
   6. One licensed engineer practicing mechanical engineering.
   7. One licensed engineer practicing electrical engineering.
   8. One licensed plumbing and heating contractor.
   9. One municipal or county building inspector.
   10. One licensed liquid petroleum gas dealer/contractor involved in the design of natural and liquid petroleum gas systems who has expertise and experience in natural and liquid petroleum gas piping, venting and appliances.
   11. One representative of the public who is not a member of the building construction industry.
   12. One licensed electrical contractor.
   13. One licensed engineer on the engineering staff of a State agency charged with approval of plans of State-owned buildings.
   14. One municipal elected official or city manager.
   15. One county commissioner or county manager.
   16. One active member of the North Carolina fire service with expertise in fire safety, as recommended by the North Carolina State Firefighters' Association.
2. Compensation. -  Members of the Building Code Council other than any who are employees of the State shall receive seven dollars ($7.00) per day, including necessary time spent in traveling to and from their place of residence within the State to any place of meeting or while traveling on official business of the Council. In addition, all members shall receive mileage and subsistence according to State practice while going to and from any place of meeting, or when on official business of the Council.
3. Residential Code Committee Created; Duties. - Within the Building Code Council, there is hereby created a Residential Code for One- and Two-Family Dwellings Committee composed of seven members of the Building Code Council, specifically the licensed general contractor specializing in residential construction who shall serve as chairman of this committee; the licensed general contractor specializing in coastal residential construction; the licensed engineer practicing structural engineering; the licensed plumbing and heating contractor; the fire service representative; the municipal or county building inspector; and the licensed electrical contractor. This committee shall meet upon the call of its chairman to review any proposal for revision or amendment to the North Carolina State Building Code: Residential Code for One- and Two-Family Dwellings, including provisions applicable to One- and Two-Family Dwellings from the NC Energy Code, NC Electrical Code, NC Fuel Gas Code, NC Plumbing Code, the NC Mechanical Code, the NC Existing Building Code, and any other code applicable to residential construction, and no revision or amendment to any of these codes applicable to residential construction may be considered by the Building Code Council unless recommended by this committee. This committee shall also oversee the process by which the Council conducts its revision pursuant to G.S. 143-138(d). This committee shall also consider any appeal or interpretation arising under G.S. 143-141 pertaining to North Carolina State Building Code: Residential Code for One- and Two-Family Dwellings and make a recommendation to the Building Code Council for disposition of the appeal or interpretation. In considering the recommendations of the committee related to revisions and amendments of the Building Code, nothing in this subsection shall prevent the Building Code Council from accepting, rejecting, or amending the recommendation, provided that any amendment to the recommendation must be germane.
4. Building Code Committee Created; Duties. -  Within the Building Code Council, there is hereby created a Building Code Committee for all structures except those subject to the North Carolina State Building Code: Residential Code for One- and Two-Family Dwellings. The committee shall be composed of the following nine members of the Building Code Council:
   1. One of the licensed architects appointed by the chairman of the Building Code Council.
   2. The licensed engineer practicing mechanical engineering.
   3. The licensed engineer practicing electrical engineering.
   4. The licensed engineer practicing structural engineering.
   5. The municipal elected official.
   6. The fire service representative.
   7. The municipal or county building inspector.
   8. The State agency engineer.
   9. The licensed general contractor.

In selecting the municipal and county members, preference should be given to members who qualify as either a licensed architect, licensed engineer, or licensed general contractor. Of the members initially appointed by the Governor, three shall serve for terms of two years each, three shall serve for terms of four years each, and three shall serve for terms of six years each. Thereafter, all appointments shall be for terms of six years. The Governor may remove appointive members at any time. Neither the architect nor any of the above named engineers shall be engaged in the manufacture, promotion or sale of any building material, and any member who shall, during his term, cease to meet the qualifications for original appointment (through ceasing to be a practicing member of the profession indicated or otherwise) shall thereby forfeit his membership on the Council. In making new appointments or filling vacancies, the Governor shall ensure that minorities and women are represented on the Council.

The Governor may make appointments to fill the unexpired portions of any terms vacated by reason of death, resignation, or removal from office. In making such appointment, he shall preserve the composition of the Council required above.

The chairman of the Building Code Council shall call the first meeting of the Committee, at which meeting the Committee shall elect a chairman from among the members of the Committee as the first order of business. Thereafter, the Committee shall meet upon the call of the chairman to review any proposal for revision or amendment to the North Carolina State Building Code, including provisions applicable to the North Carolina Energy Code, the North Carolina Electrical Code, the North Carolina Fuel Gas Code, the North Carolina Plumbing Code, the North Carolina Mechanical Code, the North Carolina Existing Building Code, and any other code applicable to commercial or multi-family construction, and no revision or amendment to any of these codes applicable to commercial or multi-family construction may be considered by the Building Code Council unless recommended by this committee. This committee shall also oversee the process by which the Council conducts its revision of the codes applicable to commercial or multi-family construction pursuant to G.S. 143-138(d). This committee shall also consider any appeal or interpretation arising under G.S. 143-141 pertaining to codes applicable to commercial or multi-family construction and make a recommendation to the Building Code Council for disposition of the appeal or interpretation. In considering the recommendations of the committee related to revisions and amendments of the Building Code, nothing in this subsection shall prevent the Building Code Council from accepting, rejecting, or amending the recommendation, provided that any amendment to the recommendation must be germane.

History

(1957, c. 1138; 1965, c. 1145; 1969, c. 1229, s. 1; 1971, c. 323; 1979, c. 863; 1989, c. 25, s. 3; 1991 (Reg. Sess., 1992), c. 895, s. 2; 1998-57, s. 1; 2015-145, s. 5.1; 2016-51, s. 6; 2017-130, s. 5.)

Local Modification. - (As to Article 9) Forsyth: 2013-250, s. 1 (expiring June 30, 2018); (As to Article 9) city of Winston-Salem: 2013-250, s. 1 (expiring June 30, 2018); Town of Nags Head: 1998-13, s. 1; town of Wrightsville Beach: 1989, c. 611, s. 1, as amended by 2005-265, s. 1.

State Government Reorganization. - The Building Code Council was transferred to the Department of Insurance by G.S. 143A-78, enacted by Session Laws 1971, c. 864.

Editor's Note. - Session Laws 1989, c. 25, s. 4 provides: "All statutory authority, powers, and duties, including rule making and the rendering of findings, orders, and adjudications, of the Department of Agriculture pertaining to the regulation of the design, construction, location, installation, or operation of equipment for storing, handling, transporting, and utilizing liquefied petroleum gases for fuel purposes, from the outlet of the first stage pressure regulator to and including each liquefied petroleum gas utilization device within a building or structure covered by the North Carolina Building Code are transferred to the Building Code Council.

"Until the Building Code Council adopts rules regarding the entry of liquefied petroleum gas service piping into a building, 2 NCAC 38.0701(2) shall remain in effect."

For provisions of the Permit Extension Act of 2009, Session Laws 2009-406, as amended by Session Laws 2009-484, s. 5.1, Session Laws 2009-550, s. 5.2, Session Laws 2009-572, ss. 1-3, and Session Laws 2010-177, s. 1, see the notes under G.S. 153A-344.1 and G.S. 160A-385.1.

Session Laws 2013-77, s. 1, provides: "Definitions. - As used in this act, 'Council' means the Building Code Council, 'Code' means the 2012 NC Building Code, and 'Homeless Shelter Provision' means the requirement set forth in Section 424.1.1 of the North Carolina Building Code requiring that homeless occupants of a temporary overflow shelter for the homeless be over the age of 18."

Session Laws 2013-77, s. 2, provides: "New Code amendment. - Until the effective date of the Code amendment that the Council is required to adopt pursuant to Section 4 of this act, the Council and local governments enforcing the Code shall implement Section 424.1.1, as provided in Section 3 of this act."

Session Laws 2013-77, s. 3, provides: "Implementation. - Notwithstanding any provision of the Code to the contrary, temporary overflow emergency shelters for the homeless may house occupants under the age of 18 when the shelter meets the following requirements:

"(1) The shelter is intended to serve homeless families that include children under 18 and their parents or other legal guardians.

"(2) The temporary shelter consists of a group of churches or other nonprofit religious entities that have agreed to host the shelter occupants on the premises of each church or religious entity on a rotating basis.

"(3) The shelter is equipped with smoke detectors meeting applicable Code provisions for such devices in all sleeping areas."

Session Laws 2013-77, s. 4, provides: "Additional rule-making authority. - Notwithstanding G.S. 150B-19(4), the Commission shall adopt amendments to the Homeless Shelter Provision to be substantively identical to the provisions of Section 3 of this act. Rules adopted pursuant to this section are not subject to G.S. 150B-21.8 through G.S. 150B-21.14. Rules adopted pursuant to this section shall become effective as provided in G.S. 150B-21.3(b1) as though 10 or more written objections had been received as provided by G.S. 150B-21.3(b2)."

Session Laws 2013-77, s. 5, provides: "Sunset. - Section 3 of this act expires on the date that rules adopted pursuant to Section 4 of this act become effective."

Session Laws 2014-120, s. 13(a)-(c), provides: "(a) Notwithstanding Section 1109.14 of the 2012 NC State Building Code (Building Code), swimming pools shall be required to be accessible only to the extent required by the Americans with Disabilities Act, 42 U.S.C. § 12101, et seq., and federal rules and regulations adopted pursuant to that Act.

"(b) The Building Code Council shall adopt a rule to amend Section 1109.14 of the 2012 NC State Building Code (Building Code) consistent with Section 13(a) of this act.

"(c) Section 13(a) of this act expires on the date that the rule adopted pursuant to Section 13(b) of this act becomes effective."

Session Laws 2015-19, ss. 1-5, provides: "1. Definitions. - As used in this act, "Council" means the Building Code Council, "Code" means the current North Carolina Building Code as adopted by the Council, and "open air camp cabin" means a single-story structure that (i) has three walls consisting of at least twenty percent (20%) screened openings no more than 44 inches above the floor; (ii) has no heating or cooling system; (iii) is occupied for no more than 150 days within any rolling 365-day time span; and (iv) accommodates 36 or fewer persons.

"2. New Code amendment. - Until the effective date of the Code amendment that the Council is required to adopt pursuant to Section 4 of this act, the Council and local governments enforcing the Code shall follow the provisions of Section 3 of this act with respect to open air camp cabins.

"3. Implementation. - Notwithstanding any provision of the Code to the contrary, the Council shall not enforce any requirements more stringent than the following for open air camp cabins:

"(1) The open air camp cabin shall have at least two remote unimpeded exits, but lighted exit signs shall not be required.

"(2) The open air camp cabin shall not be required to have plumbing or electrical systems, but if the cabin has these systems, then the provisions of the Code otherwise applicable to those systems shall apply.

"(3) Smoke detectors and handheld fire extinguishers may be required as otherwise provided in the Code, but no requirement for a sprinkler system shall be imposed.

"4. Rule-making authority. - Notwithstanding G.S. 150B-19(4), the Commission shall adopt rules establishing a new residential occupancy category under Section 310 of the Code for open air camp cabins that are substantively identical to the provisions of Section 3 of this act.

"5. Sunset. - Section 3 of this act expires on the date that rules adopted pursuant to Section 4 of this act become effective."

Session Laws 2015-145, s. 2, provides: "The North Carolina Building Code Council shall study procedures and policies for the approval of alternative materials, designs, or methods. The study shall include review of the following elements:

"(1) The alternate methods application process, including requirements for initial application submittal, supporting information, and site-specific or project-specific application submittals.

"(2) Time lines for the application process, including application submittal, Council review, and final approval or denial of applications, including the feasibility of a requirement that final determinations be rendered on a completed application within 30 days of the date an application is determined to be complete.

"(3) Procedures for appeal of applications denied by the Council.

"In conducting the study, the Council may utilize support services provided by staff from the Engineering Division of the Department of Insurance. The Council shall report its findings and recommendations, including any proposed legislative changes, to the 2016 Regular Session of the 2015 General Assembly when it convenes."

Session Laws 2016-113, s. 17(b), effective October 1, 2016, provides: "The Building Code Council shall amend the State Electrical Code and the State Plumbing Code consistent with this section." Session Laws 2016-113, s. 17(a) amended G.S. 87-97.

Session Laws 2016-113, s. 19(a), is a severability clause.

Effect of Amendments. - Session Laws 2015-145, s. 5.1, effective October 1, 2015, rewrote subsection (a); and added subsections (c) and (d).

Session Laws 2016-51, s. 6, effective July 1, 2016, substituted "North Carolina State Firefighters' Association" for "North Carolina State Firemen's Association" in subdivision (a)(16).

Session Laws 2017-130, s. 5, effective October 1, 2017, inserted "and any other code applicable to residential construction," in the second sentence of subsection (c); inserted "and any other code applicable to commercial or multi-family construction," in the second sentence of the last paragraph in subsection (d); and made stylistic changes.

§ 143-137. Organization of Council; rules; meetings; staff; fiscal affairs.

1. First Meeting; Organization; Rules. - Within 30 days after its appointment, the Building Code Council shall meet on call of the Commissioner of Insurance. The Council shall elect from its appointive members a chairman and such other officers as it may choose, for such terms as it may designate in its rules. The Council shall adopt such rules not inconsistent herewith as it may deem necessary for the proper discharge of its duties. The chairman may appoint members to such committees as the work of the Council may require. In addition, the chairman shall establish and appoint ad hoc code revision committees to consider and prepare revisions and amendments to the Code volumes. Each ad hoc committee shall consist of members of the Council, licensed contractors, and design professionals most affected by the Code volume for which the ad hoc committee is responsible, and members of the public. The subcommittees shall meet upon the call of their respective chairs and shall report their recommendations to the Council.
2. Meetings. - The Council shall meet regularly, at least once every six months, at places and dates to be determined by the Council. Special meetings may be called by the chairman on his own initiative and must be called by him at the request of two or more members of the Council. All members shall be notified by the chairman in writing of the time and place of regular and special meetings at least seven days in advance of such meeting. Seven members shall constitute a quorum. All meetings shall be open to the public.
3. Staff. - Personnel of the Division of Engineering of the Department of Insurance shall serve as a staff for the Council. Such staff shall have the duties of
   1. Keeping an accurate and complete record of all meetings, hearings, correspondence, laboratory studies, and technical work performed by or for the Council, and making these records available for public inspection at all reasonable times;
   2. Handling correspondence for the Council.
4. Fiscal Affairs of the Council. - All funds for the operations of the Council and its staff shall be appropriated to the Department of Insurance for the use of the Council. All such funds shall be held in a separate or special account on the books of the Department of Insurance, with a separate financial designation or code number to be assigned by the Department of Administration or its agent. Expenditures for staff salaries and operating expenses shall be made in the same manner as the expenditure of any other Department of Insurance funds. The Department of Insurance may hire such additional personnel as may be necessary to handle the work of the Building Code Council, within the limits of funds appropriated for the Council and with the approval of the Council.

History

(1957, c. 269, s. 1; c. 1138; 1987, c. 827, s. 219; 1987 (Reg. Sess., 1988), c. 975, s. 7; 1997-26, s. 4.)

Legal Periodicals. - For 1997 legislative survey, see 20 Campbell L. Rev. 413.

§ 143-138. North Carolina State Building Code.

1. Preparation and Adoption. - The Building Code Council may prepare and adopt, in accordance with the provisions of this Article, a North Carolina State Building Code. Before the adoption of the Code, or any part of the Code, the Council shall hold at least one public hearing. A notice of the public hearing shall be published in the North Carolina Register at least 15 days before the date of the hearing. Notwithstanding G.S. 150B-2(8a)h., the North Carolina State Building Code as adopted by the Building Code Council is a rule within the meaning of G.S. 150B-2(8a) and shall be adopted in accordance with the procedural requirements of Article 2A of Chapter 150B of the General Statutes.
2. Additional Adoption Requirements. -
   1. The Council shall request the Office of State Budget and Management to prepare a fiscal note for a proposed Code change that has a substantial economic impact, as defined in G.S. 150B-21.4(b1), or that increases the cost of residential housing by eighty dollars ($80.00) or more per housing unit. The change can become effective only in accordance with G.S. 143-138(d). Neither the Department of Insurance nor the Council shall be required to expend any monies to pay for the preparation of any fiscal note under this section by any person outside of the Department or Council unless the Department or Council contracts with a third-party vendor to prepare the fiscal note.
   2. The Council shall conduct a cost-benefit analysis for all proposed changes considered after January 1, 2018, to the North Carolina Energy Conservation Code.
3. Contents of the Code. - The North Carolina State Building Code, as adopted by the Building Code Council, may include reasonable and suitable classifications of buildings and structures, both as to use and occupancy; general building restrictions as to location, height, and floor areas; rules for the lighting and ventilation of buildings and structures; requirements concerning means of egress from buildings and structures; requirements concerning means of ingress in buildings and structures; rules governing construction and precautions to be taken during construction; rules as to permissible materials, loads, and stresses; rules governing chimneys, heating appliances, elevators, and other facilities connected with the buildings and structures; rules governing plumbing, heating, air conditioning for the purpose of comfort cooling by the lowering of temperature, and electrical systems; and such other reasonable rules pertaining to the construction of buildings and structures and the installation of particular facilities therein as may be found reasonably necessary for the protection of the occupants of the building or structure, its neighbors, and members of the public at large.
4. Fire Protection; Smoke Detectors. - The Code may regulate activities and conditions in buildings, structures, and premises that pose dangers of fire, explosion, or related hazards. Such fire prevention code provisions shall be considered the minimum standards necessary to preserve and protect public health and safety, subject to approval by the Council of more stringent provisions proposed by a municipality or county as provided in G.S. 143-138(e). These provisions may include regulations requiring the installation of either battery-operated or electrical smoke detectors in every dwelling unit used as rental property, regardless of the date of construction of the rental property. For dwelling units used as rental property constructed prior to 1975, smoke detectors shall have an Underwriters' Laboratories, Inc., listing or other equivalent national testing laboratory approval, and shall be installed in accordance with either the standard of the National Fire Protection Association or the minimum protection designated in the manufacturer's instructions, which the property owner shall retain or provide as proof of compliance.
5. Carbon Monoxide Alarms. - The Code (i) may contain provisions requiring the installation of either battery-operated or electrical carbon monoxide alarms in every dwelling unit having a combustion heater, appliance, or fireplace, and in any dwelling unit having an attached garage and (ii) shall contain provisions requiring the installation of electrical carbon monoxide alarms at a lodging establishment. Violations of this subsection and rules adopted pursuant to this subsection shall be punishable in accordance with subsection (h) of this section and G.S. 143-139. In particular, the rules shall provide:
   1. For dwelling units, carbon monoxide alarms shall be those listed by a nationally recognized testing laboratory that is approved to test and certify to American National Standards Institute/Underwriters Laboratories Standards ANSI/UL2034 or ANSI/UL2075 and shall be installed in accordance with either the standard of the National Fire Protection Association or the minimum protection designated in the manufacturer's instructions, which the property owner shall retain or provide as proof of compliance. A carbon monoxide alarm may be combined with smoke detectors if the combined alarm does both of the following: (i) complies with ANSI/UL2034 or ANSI/UL2075 for carbon monoxide alarms and ANSI/UL217 for smoke detectors; and (ii) emits an alarm in a manner that clearly differentiates between detecting the presence of carbon monoxide and the presence of smoke.
   2. For lodging establishments, including tourist homes that provide accommodations for seven or more continuous days (extended-stay establishments), and bed and breakfast inns and bed and breakfast homes as defined in G.S. 130A-247, carbon monoxide alarms shall be installed in every dwelling unit or sleeping unit having a combustion heater, appliance, or fireplace and in every dwelling unit or sleeping unit that shares a common wall, floor, or ceiling with a room having a combustion heater, appliance, or fireplace. Carbon monoxide alarms shall be (i) listed by a nationally recognized testing laboratory that is approved to test and certify to American National Standards Institute/Underwriters Laboratories (ANSI/UL) Standards ANSI/UL2034 or ANSI/UL2075, (ii) installed in accordance with either the standard of the National Fire Protection Association (NFPA) or the minimum protection designated in the manufacturer's instructions, which the lodging establishment shall retain or provide as proof of compliance, (iii) receive primary power from the building's wiring, where such wiring is served from a commercial source, and (iv) receive power from a battery when primary power is interrupted. A carbon monoxide alarm may be combined with smoke detectors if the combined alarm complies with the requirements of this subdivision for carbon monoxide alarms and ANSI/UL217 for smoke alarms. In lieu of the carbon monoxide alarms required by this subsection, a carbon monoxide detection system, which includes carbon monoxide detectors and audible notification appliances installed and maintained in accordance with NFPA 720, shall be permitted. The carbon monoxide detectors shall be listed as complying with ANSI/UL2075. For purposes of this subsection, "lodging establishment" means any hotel, motel, tourist home, or other establishment permitted under authority of G.S. 130A-248 to provide lodging accommodations for pay to the public, and "combustion heater, appliance, or fireplace" means any heater, appliance, or fireplace that burns combustion fuels, including, but not limited to, natural or liquefied petroleum gas, fuel oil, kerosene, wood, or coal for heating, cooking, drying, or decorative purposes, including, but not limited to, space heaters, wall and ceiling heaters, ranges, ovens, stoves, furnaces, fireplaces, water heaters, and clothes dryers. For purposes of this subsection, candles and canned fuels are not considered to be combustion appliances.
   3. The Building Code Council shall modify the NC State Building Code (Fire Prevention) to regulate the provisions of this subsection in new and existing lodging establishments, including hotels, motels, tourist homes that provide accommodations for seven or more continuous days (extended-stay establishments), and bed and breakfast inns and bed and breakfast homes as defined in G.S. 130A-247; provided nothing in this subsection shall prevent the Building Code Council from establishing more stringent rules regulating carbon monoxide alarms or detectors for new lodging establishments, including hotels, motels, tourist homes that provide accommodations for seven or more continuous days (extended-stay establishments), and bed and breakfast inns and bed and breakfast homes as defined in G.S. 130A-247. The Building Code Council shall modify the NC State Building Code (Fire Prevention) minimum inspection schedule to include annual inspections of new and existing lodging establishments, including hotels, motels, and tourist homes that provide accommodations for seven or more continuous days (extended-stay establishments), and bed and breakfast inns and bed and breakfast homes as defined in G.S. 130A-247 for the purpose of compliance with this subsection.
   4. Upon discovery of a violation of this subsection that poses an imminent hazard and that is not corrected during an inspection of a lodging establishment subject to the provisions of G.S. 130A-248, the code official responsible for enforcing the NC State Building Code (Fire Prevention) shall immediately notify the local health director for the county in which the violation was discovered, or the local health director's designee, by verbal contact and shall also submit a written report documenting the violation of this subsection to the local health director for the county in which the violation was discovered, or the local health director's designee, on the next working day following the discovery of the violation. Within one working day of receipt of the written report documenting a violation of this subsection, the local health director for the county in which the violation was discovered, or the local health director's designee, shall investigate and take appropriate action regarding the permit for the lodging establishment, as provided in G.S. 130A-248. Lodging establishments having five or more rooms that are exempted from the requirements of G.S. 130A-248 by G.S. 130A-250 shall be subject to the penalties set forth in the NC State Building Code (Fire Prevention).
   5. Upon discovery of a violation of this subsection that does not pose an imminent hazard and that is not corrected during an inspection of a lodging establishment subject to the provisions of G.S. 130A-248, the owner or operator of the lodging establishment shall have a correction period of three working days following the discovery of the violation to notify the code official responsible for enforcing the NC State Building Code (Fire Prevention) verbally or in writing that the violation has been corrected. If the code official receives such notification, the code official may reinspect the portions of the lodging establishment that contained violations, but any fees for reinspection shall not exceed the fee charged for the initial inspection. If the code official receives no such notification, or if a reinspection discovers that previous violations were not corrected, the code official shall submit a written report documenting the violation of this subsection to the local health director for the county in which the violation was discovered, or the local health director's designee, within three working days following the termination of the correction period or the reinspection, whichever is later. The local health director shall investigate and may take appropriate action regarding the permit for the lodging establishment, as provided in G.S. 130A-248. Lodging establishments having five or more rooms that are exempted from the requirements of G.S. 130A-248 by G.S. 130A-250 shall be subject to the penalties set forth in the NC State Building Code (Fire Prevention).
   6. The requirements of subdivisions (2) through (5) of this subsection shall not apply to properties subject to the provisions of either G.S. 42-42 or G.S. 42A-31.
6. Applicability of the Code. - Except as provided by subsections (b4) and (c1) of this section, the Code may contain provisions regulating every type of building or structure, wherever it might be situated in the State.
7. Exclusion for Certain Farm Buildings. - Building rules do not apply to (i) farm buildings that are located outside the building-rules jurisdiction of any municipality, (ii) farm buildings that are located inside the building-rules jurisdiction of any municipality if the farm buildings are greenhouses or therapeutic equine facilities, (iii) a primitive camp, or (iv) a primitive farm building. For the purposes of this subsection:
   1. For the purposes of this subdivision, a "farm building" means any nonresidential building or structure that is used for a bona fide farm purpose as provided in G.S. 153A-340. A "farm building" shall include:
      1. Any structure used or associated with equine activities, including, but not limited to, the care, management, boarding, or training of horses and the instruction and training of riders. Structures that are associated with equine activities include, but are not limited to, free standing or attached sheds, barns, or other structures that are utilized to store any equipment, tools, commodities, or other items that are maintained or used in conjunction with equine activities. The specific types of equine activities, structures, and uses set forth in this subdivision are for illustrative purposes, and should not be construed to limit, in any manner, the types of activities, structures, or uses that may be considered under this subsection as exempted from building rules. A farm building that might otherwise qualify for exemption from building rules shall remain subject only to an annual safety inspection by the applicable city or county building inspection department of any grandstand, bleachers, or other spectator-seating structures in the farm building. An annual safety inspection shall include an evaluation of the overall safety of spectator-seating structures as well as ensuring the spectator-seating structure's compliance with any building codes related to the construction of spectator-seating structures in effect at the time of the construction of the spectator-seating.
      2. Any structure used for the display and sale of produce, no more than 1,000 square feet in size, open to the public for no more than 180 days per year, and certified by the Department of Agriculture and Consumer Services as a Certified Roadside Farm Market.
      3. Any unoccupied structure built upon land owned by the State of North Carolina and administratively allocated to the North Carolina Department of Agriculture and Consumer Services or North Carolina State University which is used primarily for forestry production and research or agriculture production and research. The term "agriculture" has the same meaning as in G.S. 106-581.1. The term "unoccupied" does not exclude the keeping of livestock.
         1. Central Alarm Facility Required. - A central alarm facility accessible at all times to fire department personnel or attended 24 hours a day, shall be provided and shall contain the following:
         2. Public service telephone.
         3. Direct communication to the control facility.
         4. Controls for the voice communication systems.
         5. Fire detection and alarm system annunciator panels to indicate the type of signal and the floor or zone from which the fire alarm is received, those signals, shall be both audible and visual with a silence switch for the audible.
   2. A "farm building" shall not lose its status as a farm building because it is used for public or private events, including, but not limited to, weddings, receptions, meetings, demonstrations of farm activities, meals, and other events that are taking place on the farm because of its farm or rural setting.
   3. A "greenhouse" is a structure that has a glass or plastic roof, has one or more glass or plastic walls, has an area over ninety-five percent (95%) of which is used to grow or cultivate plants, is built in accordance with the National Greenhouse Manufacturers Association Structural Design manual, and is not used for retail sales. Additional provisions addressing distinct life safety hazards shall be approved by the local building-rules jurisdiction.
   4. A "therapeutic equine facility" is an equine facility as described in sub-subdivision (1)a. of this subsection operated by an organization exempt from federal income tax under section 501(c)(3) of the Internal Revenue Code that provides therapeutic equine-related activities for persons who are physically, intellectually, or emotionally challenged.
   5. Repealed by Session Laws 2015-263, s. 34, effective September 30, 2015.
   6. A "primitive camp" shall include any structure primarily used or associated with outdoor camping activities, including structures used for educational, instructional, or recreational purposes for campers and for management training, that are (i) not greater than 4,000 square feet in size and (ii) are not intended to be occupied for more than 24 hours consecutively. "Structures primarily used or associated with outdoor camping activities" include, but are not limited to, shelters, tree stands, outhouses, sheds, rustic cabins, campfire shelters, picnic shelters, tents, tepees or other indigenous huts, support buildings used only for administrative functions and not for activities involving campers or program participants, and any other structures that are utilized to store any equipment, tools, commodities, or other items that are maintained or used in conjunction with outdoor camping activities such as hiking, fishing, hunting, or nature appreciation, regardless of material used for construction. The specific types of primitive camping activities, structures, and uses set forth in this subdivision are for illustrative purposes and should not be construed to limit, in any manner, the types of activities, structures, or uses that are exempted from building rules.
   7. A "primitive farm building" shall include any structure used for activities, instruction, training, or reenactment of traditional or heritage farming practices. "Primitive farm buildings" include, but are not limited to, sheds, barns, outhouses, doghouses, or other structures that are utilized to store any equipment, tools, commodities, livestock, or other items supporting farm management. These specific types of farming activities, structures, and uses set forth by this subdivision are for illustrative purposes and should not be construed to limit in any manner the types of activities, structures, or uses that are exempted from building rules.
   8. Repealed by Session Laws 2015-263, s. 34, effective September 30, 2015.
8. Exclusion for Certain Minor Activities in Residential and Farm Structures. - No permit shall be required under the Code or any local variance thereof approved under subsection (e) for any construction, installation, repair, replacement, or alteration performed in accordance with the current edition of the North Carolina State Building Code and costing fifteen thousand dollars ($15,000) or less in any single family residence or farm building unless the work involves any of the following:
   1. The addition, repair, or replacement of load bearing structures. However, no permit is required for replacements of windows, doors, exterior siding, or the pickets, railings, stair treads, and decking of porches and exterior decks that otherwise meet the requirements of this subsection.
   2. The addition or change in the design of plumbing. However, no permit is required for replacements otherwise meeting the requirements of this subsection that do not change size or capacity.
   3. The addition, replacement or change in the design of heating, air conditioning, or electrical wiring, appliances, or equipment.
   4. The use of materials not permitted by the North Carolina Residential Code for One- and Two-Family Dwellings.
   5. The addition (excluding replacement) of roofing.
9. No State Agency Permit. - No permit shall be required under the Code from any State agency for the construction of any building or structure, the total cost of which is less than twenty thousand dollars ($20,000), except public or institutional buildings.
10. Appendices. - For the information of users thereof, the Code shall include as appendices the following:
    1. Any rules governing boilers adopted by the Board of Boiler and Pressure Vessels Rules,
    2. Any rules relating to the safe operation of elevators adopted by the Commissioner of Labor, and
    3. Any rules relating to sanitation adopted by the Commission for Public Health which the Building Code Council believes pertinent.
11. Exclusion for Certain Utilities. - Nothing in this Article shall extend to or be construed as being applicable to the regulation of the design, construction, location, installation, or operation of (1) equipment for storing, handling, transporting, and utilizing liquefied petroleum gases for fuel purposes or anhydrous ammonia or other liquid fertilizers, except for liquefied petroleum gas from the outlet of the first stage pressure regulator to and including each liquefied petroleum gas utilization device within a building or structure covered by the Code, or (2) equipment or facilities, other than buildings, of a public utility, as defined in G.S. 62-3, a cable television company, or an electric or telephone membership corporation, including without limitation poles, towers, and other structures supporting electric, cable television, or communication lines.
12. Exclusion for Industrial Machinery. - Nothing in this Article shall extend to or be construed as being applicable to the regulation of the design, construction, location, installation, or operation of industrial machinery. However, if during the building code inspection process, an electrical inspector has any concerns about the electrical safety of a piece of industrial machinery, the electrical inspector may refer that concern to the Occupational Safety and Health Division in the North Carolina Department of Labor but shall not withhold the certificate of occupancy nor mandate third-party testing of the industrial machinery based solely on this concern. For the purposes of this paragraph, "industrial machinery" means equipment and machinery used in a system of operations for the explicit purpose of producing a product or acquired by a State-supported center providing testing, research, and development services to manufacturing clients. The term does not include equipment that is permanently attached to or a component part of a building and related to general building services such as ventilation, heating and cooling, plumbing, fire suppression or prevention, and general electrical transmission.
13. Replacement Water Heaters. -
    1. Exclusion. - No permit shall be required under the Code or any local variant approved under subsection (e) of this section for replacement of water heaters in one- or two-family dwellings, provided (i) the energy use rate or thermal input is not greater than that of the water heater which is being replaced, and there is no change in fuel, energy source, location, or routing or sizing of venting and piping, (ii) the work is performed by a person or employee of a company licensed under G.S. 87-21 or pursuant to G.S. 87-21(i), and (iii) the replacement is installed in accordance with the current edition of the North Carolina State Building Code.
    2. Energy efficiency. - The Code may contain rules concerning minimum efficiency requirements for replacement water heaters, which shall consider reasonable availability from manufacturers to meet installation space requirements and may contain rules concerning energy efficiency that require all hot water plumbing pipes that are larger than one-fourth of an inch to be insulated.
14. School Seclusion Rooms. - No State, county, or local building code or regulation shall prohibit the use of special locking mechanisms for seclusion rooms in the public schools approved under G.S. 115C-391.1(e)(1)e., provided that the special locking mechanism shall be constructed so that it will engage only when a key, knob, handle, button, or other similar device is being held in position by a person, and provided further that, if the mechanism is electrically or electronically controlled, it automatically disengages when the building's fire alarm is activated. Upon release of the locking mechanism by a supervising adult, the door must be able to be opened readily.
15. Cisterns. - The Code may include rules pertaining to the construction or renovation of residential or commercial buildings and structures that permit the use of cisterns to provide water for flushing toilets and for outdoor irrigation. No State, county, or local building code or regulation shall prohibit the use of cisterns to provide water for flushing toilets and for outdoor irrigation. As used in this subsection, "cistern" means a storage tank that is watertight; has smooth interior surfaces and enclosed lids; is fabricated from nonreactive materials such as reinforced concrete, galvanized steel, or plastic; is designed to collect rainfall from a catchment area; may be installed indoors or outdoors; and is located underground, at ground level, or on elevated stands.
16. Migrant Housing. - The Council shall provide for an exemption from any requirements in the fire prevention code for installation of an automatic sprinkler system applicable to buildings meeting all of the following:
    1. Has one floor.
    2. Meets all requirements of 29 C.F.R. § 1910.142, as amended.
    3. Meets all requirements of Article 19 of Chapter 95 of the General Statutes and rules implementing that Article.
17. Exclusion for Routine Maintenance of Pumps and Dispensers. - No permit shall be required under the Code or any local variant approved under subsection (e) of this section for routine maintenance on fuel dispensing pumps and other dispensing devices. For purposes of this subsection, "routine maintenance" includes repair or replacement of hoses, O-rings, nozzles, or emergency breakaways.
18. Exclusion from Energy Code Requirements for Existing Commercial Buildings. - The alteration of commercial buildings and structures that received a certificate of occupancy prior to January 1, 2012, may be subject to the rules pertaining to energy efficiency and energy conservation that were in effect on December 31, 2011. The addition to commercial buildings and structures that received a certificate of occupancy prior to January 1, 2012, may be subject to the rules pertaining to energy efficiency and energy conservation that were in effect on December 31, 2011, so long as the addition does not increase the building area of the existing commercial building or structure to more than one hundred fifty percent (150%) of the building area of the commercial building or structure as it was in existence on December 31, 2011. For the purpose of this subsection, the term "commercial buildings and structures" shall include all structures and buildings that are not classified as a Group R occupancy by the Building Code Council.
19. Exclusion for Electrical Devices and Lighting Fixtures. - No permit shall be required under the Code or any local variant approved under subsection (e) of this section for the repair or replacement of dishwashers, disposals, water heaters, electrical devices, or lighting fixtures in residential or commercial structures, provided that all of the following apply:
    1. The repair or replacement does not require the addition or relocation of electrical wiring.
    2. The work is performed by a person or employee of a company licensed under G.S. 87-43.
    3. The repair or replacement is performed in accordance with the current edition of the North Carolina State Building Code.
20. Exclusion for Private Drinking Water Well Installation, Construction, Maintenance, and Repair. - No permit shall be required under the Code or any local variant approved under subsection (e) of this section for the electrical and plumbing activities associated with the installation, construction, maintenance, or repair of a private drinking water well when all of the following apply:
    1. The work is performed by a contractor certified under Article 7A of Chapter 87 of the General Statutes under the terms of a permit issued by the local health department pursuant to G.S. 87-97.
    2. The scope of work includes only the connection or disconnection of a well system to either the plumbing served by the well system or the electrical service that serves the well system. For purposes of this subsection, a well system includes the well, the pressure tank, the pressure switch, and all plumbing and electrical equipment in the well and between the well, pressure tank, and pressure switch.
21. Exclusion From Energy Efficiency Code Requirements for Certain Use and Occupancy Classifications. - The Council shall provide for an exemption from any requirements in the energy efficiency standards pursuant to Chapter 13 of the 2012 North Carolina Building Code and the 2012 Energy Conservation Code, and any subsequent amendments to the Building Code and Energy Conservation Code, for the following use and occupancy classifications pursuant to Chapter 3 of the 2012 North Carolina Building Code: Section 306, Factory Group F; Section 311, Storage Group S; and Section 312, Utility and Miscellaneous Group U. This exclusion shall apply to the entire floor area of any structure for which the primary use or occupancy is listed herein.
22. Exclusion From Energy Efficiency Code Requirements for Residential Garages. - The Council shall provide for an exemption for detached and attached garages located on the same lot as a dwelling from any requirements in the energy efficiency standards pursuant to Chapter 11 of the North Carolina Residential Code for One- and Two-Family Dwellings and Chapter 4 of the North Carolina Energy Conservation Code.
23. Exclusion for Temporary Motion Picture, Television, and Theater Stage Sets and Scenery. - No permit shall be required under the North Carolina State Building Code or any local variant approved under subsection (e) of this section for any construction, installation, repair, replacement, or alteration of temporary motion picture, television, and theater stage sets and scenery that are being used for less than one year in one location and are inspected by the assigned fire code inspector. The Building Code Council shall create a fire code inspection checklist that shall be used for inspections under this subsection.
24. Standards to Be Followed in Adopting the Code. - All regulations contained in the North Carolina State Building Code shall have a reasonable and substantial connection with the public health, safety, morals, or general welfare, and their provisions shall be construed reasonably to those ends. Requirements of the Code shall conform to good engineering practice. The Council may use as guidance, but is not required to adopt, the requirements of the International Building Code of the International Code Council, the Standard Building Code of the Southern Building Code Congress International, Inc., the Uniform Building Code of the International Conference of Building Officials, the National Building Code of the Building Officials and Code Administrators, Inc., the National Electric Code, the Life Safety Code, the National Fuel Gas Code, the Fire Prevention Code of the National Fire Protection Association, the Safety Code for Elevators and Escalators, and the Boiler and Pressure Vessel Code of the American Society of Mechanical Engineers, and standards promulgated by the American National Standards Institute, Standards Underwriters' Laboratories, Inc., and similar national or international agencies engaged in research concerning strength of materials, safe design, and other factors bearing upon health and safety.
25. Exemptions for Private Clubs and Religious Organizations. - The North Carolina State Building Code and the standards for the installation and maintenance of limited-use or limited-access hydraulic elevators under this Article shall not apply to private clubs or establishments exempted from coverage under Title II of the Civil Rights Act of 1964, 42 U.S.C. § 2000a, et seq., or to religious organizations or entities controlled by religious organizations, including places of worship. A nonreligious organization or entity that leases space from a religious organization or entity is not exempt under this subsection.
26. Amendments of the Code. - Subject to the procedures set forth in G.S. 143-136(c) and (d), the Building Code Council may periodically revise and amend the North Carolina State Building Code, either on its own motion or upon application from any citizen, State agency, or political subdivision of the State. In addition to the periodic revisions or amendments made by the Council, the Council shall, following the procedure set forth in G.S. 143-136(c), revise the North Carolina State Building Code: Residential Code for One- and Two-Family Dwellings, including provisions applicable to One- and Two-Family Dwellings from the NC Energy Code, NC Electrical Code, NC Fuel Gas Code, NC Plumbing Code, and NC Mechanical Code only every six years, to become effective the first day of January of the following year, with at least six months between adoption and effective date. The first six-year revision under this subsection shall be adopted to become effective January 1, 2019, and every six years thereafter. In adopting any amendment, the Council shall comply with the same procedural requirements and the same standards set forth above for adoption of the Code. The Council, through the Department of Insurance, shall publish in the North Carolina Register all appeal decisions made by the Council and all formal opinions at least semiannually. The Council, through the Department of Insurance, shall also publish at least semiannually in the North Carolina Register a statement providing the accurate Web site address and information on how to find additional commentary and interpretation of the Code.
27. Effect upon Local Codes. - Except as otherwise provided in this section, the North Carolina State Building Code shall apply throughout the State, from the time of its adoption. Approved rules shall become effective in accordance with G.S. 150B-21.3. However, any political subdivision of the State may adopt a fire prevention code and floodplain management regulations within its jurisdiction. The territorial jurisdiction of any municipality or county for this purpose, unless otherwise specified by the General Assembly, shall be as follows: Municipal jurisdiction shall include all areas within the corporate limits of the municipality and extraterritorial jurisdiction areas established as provided in G.S. 160A-360 or a local act; county jurisdiction shall include all other areas of the county. No such code or regulations, other than floodplain management regulations and those permitted by G.S. 160A-436, shall be effective until they have been officially approved by the Building Code Council as providing adequate minimum standards to preserve and protect health and safety, in accordance with the provisions of subsection (c) above. Local floodplain regulations may regulate all types and uses of buildings or structures located in flood hazard areas identified by local, State, and federal agencies, and include provisions governing substantial improvements, substantial damage, cumulative substantial improvements, lowest floor elevation, protection of mechanical and electrical systems, foundation construction, anchorage, acceptable flood resistant materials, and other measures the political subdivision deems necessary considering the characteristics of its flood hazards and vulnerability. In the absence of approval by the Building Code Council, or in the event that approval is withdrawn, local fire prevention codes and regulations shall have no force and effect. Provided any local regulations approved by the local governing body which are found by the Council to be more stringent than the adopted statewide fire prevention code and which are found to regulate only activities and conditions in buildings, structures, and premises that pose dangers of fire, explosion or related hazards, and are not matters in conflict with the State Building Code, shall be approved. Local governments may enforce the fire prevention code of the State Building Code using civil remedies authorized under G.S. 143-139, 153A-123, and 160A-175. If the Commissioner of Insurance or other State official with responsibility for enforcement of the Code institutes a civil action pursuant to G.S. 143-139, a local government may not institute a civil action under G.S. 143-139, 153A-123, or 160A-175 based upon the same violation. Appeals from the assessment or imposition of such civil remedies shall be as provided in G.S. 160A-434.
28. Repealed by Session Laws 1989, c. 681, s. 3.
29. Publication and Distribution of Code. - The Building Code Council shall cause to be printed, after adoption by the Council, the North Carolina State Building Code and each amendment thereto. It shall, at the State's expense, distribute copies of the Code and each amendment to State and local governmental officials, departments, agencies, and educational institutions, as is set out in the table below. (Those marked by an asterisk will receive copies only on written request to the Council.)
30. Violations. - Any person who shall be adjudged to have violated this Article or the North Carolina State Building Code, except for violations of occupancy limits established by either, shall be guilty of a Class 3 misdemeanor and shall upon conviction only be liable to a fine, not to exceed fifty dollars ($50.00), for each offense. Each 30 days that such violation continues shall constitute a separate and distinct offense. Violation of occupancy limits established pursuant to the North Carolina State Building Code shall be a Class 3 misdemeanor. Any violation incurred more than one year after another conviction for violation of the occupancy limits shall be treated as a first offense for purposes of establishing and imposing penalties.
31. Section 1008 of Chapter X of Volume 1 of the North Carolina State Building Code, Title "Special Safety to Life Requirements Applicable to Existing High-Rise Buildings" as adopted by the North Carolina State Building Code Council on March 9, 1976, as ratified and adopted as follows:

The Code may include references to such other rules of special types, such as those of the Medical Care Commission and the Department of Public Instruction as may be useful to persons using the Code. No rule issued by any agency other than the Building Code Council shall be construed as a part of the Code, nor supersede that Code, it being intended that they be presented with the Code for information only.

For purposes of this subsection, "migrant housing" and "migrant" shall be defined as in G.S. 95-223.

A local government may not adopt any ordinance in conflict with the exemption provided by subsection (c1) of this section. No local ordinance or regulation shall be construed to limit the exemption provided by subsection (c1) of this section.

OFFICIAL OR AGENCY NUMBER OF COPIES State Departments and Officials Governor ................................................ 1 Lieutenant Governor ..................................... 1 Auditor ................................................. 1 Treasurer ............................................... 1 Secretary of State ...................................... 1 Superintendent of Public Instruction .................... 1 Attorney General (Library) .............................. 1 Commissioner of Agriculture ............................. 1 Commissioner of Labor ................................... 1 Commissioner of Insurance ............................... 1 Department of Environmental Quality ............................................... 1 Department of Health and Human Services ................. 1 Division of Adult Correction and Juvenile Justice of the Department of Public Safety ........................... 1 Board of Transportation ................................. 1 Utilities Commission .................................... 1 Department of Administration ............................ 1 Clerk of the Supreme Court .............................. 1 Clerk of the Court of Appeals ........................... 1 Department of Natural and Cultural Resources [State Library] .............................................. 1 Supreme Court Library ................................... 1 Legislative Library ..................................... 1 Office of Administrative Hearings ....................... 1 Rules Review Commission ................................. 1 Schools All state-supported colleges and universities in the State of North Carolina ............ * 1 each Local Officials Clerks of the Superior Courts ........................... 1 each Chief Building Inspector of each incorporated municipality or county ................................ 1

In addition, the Building Code Council shall make additional copies available at such price as it shall deem reasonable to members of the general public. The proceeds from sales of the Building Code shall be credited to the Insurance Regulatory Fund under G.S. 58-6-25.

SECTION 1008-SPECIAL SAFETY TO LIFE REQUIREMENTS APPLICABLE TO EXISTING HIGH-RISE BUILDINGS

1008 - GENERAL.

1. Applicability. - Within a reasonable time, as fixed by "written order" of the building official, and except as otherwise provided in subsection (j) of this section every building the [then] existing, that qualifies for classification under Table 1008.1 shall be considered to be a high-rise building and shall be provided with safety to life facilities as hereinafter specified. All other buildings shall be considered as low-rise. NOTE: The requirements of Section 1008 shall be considered as minimum requirements to provide for reasonable safety to life requirements for existing buildings and where possible, the owner and designer should consider the provisions of Section 506 applicable to new high-rise buildings.
2. Notification of Building Owner. - The Department of Insurance will send copies of amendments adopted to all local building officials with the suggestion that all local building officials transmit to applicable building owners in their jurisdiction copies of adopted amendments, within six months from the date the amendments are adopted, with the request that each building owner respond to the local building official how he plans to comply with these requirements within a reasonable time.
   1. The building owner shall, upon receipt of written request from the building official on compliance procedures within a reasonable time, submit an overall plan required by 1008(c) below within one year and within the time period specified in the approved overall plan, but not to exceed five years after the overall plan is approved, accomplish compliance with this section, as evidenced by completion of the work in accordance with approved working drawings and specifications and by issuance of a new Certificate of Compliance by the building official covering the work. Upon approval of building owner's overall plan, the building official shall issue a "written order", as per 1008(a) above, to comply with Section 1008 in accordance with the approved overall plan.
   2. The building official may permit time extensions beyond five years to accomplish compliance in accordance with the overall plan when the owner can show just cause for such extension of time at the time the overall plan is approved.
   3. The local building official shall send second request notices as per 1008(b) to building owners who have made no response to the request at the end of six months and a third request notice to no response building owners at the end of nine months.
   4. If the building owner makes no response to any of the three requests for information on how the owner plans to comply with Section 1008 within 12 months from the first request, the building official shall issue a "written order" to the building owner to provide his building with the safety to life facilities as required by this section and to submit an overall plan specified by (1) above within six months with the five-year time period starting on the date of the "written order".
   5. For purposes of this section, the Construction Section of the Division of Health Service Regulation, Department of Health and Human Services, will notify all non-State owned I-Institutional buildings requiring licensure by the Division of Health Service Regulation and coordinate compliance requirements with the Department of Insurance and the local building official.
3. Submission of Plans and Time Schedule for Completing Work. - Plans and specifications, but not necessarily working drawings covering the work necessary to bring the building into compliance with this section shall be submitted to the building official within a reasonable time. (See suggested time in NOTE of Section 1008(b) above). A time schedule for accomplishing the work, including the preparation of working drawings and specifications shall be included. Some of the work may require longer periods of time to accomplish than others, and this shall be reflected in the plan and schedule.
4. Building Official Notification of Department of Insurance. - The building official shall send copies of written notices he sends to building owners to the Engineering and Building Codes Division for their files and also shall file an annual report by August 15th of each year covering the past fiscal year setting forth the work accomplished under the provisions of this section.
5. Construction Changes and Design of Life Safety Equipment. - Plans and specifications which contain construction changes and design of life safety equipment requirements to comply with provisions of this section shall be prepared by a registered architect in accordance with provisions of Chapter 83A of the General Statutes or by a registered engineer in accordance with provisions of Chapter 89C of the General Statutes or by both an architect and engineer particularly qualified by training and experience for the type of work involved. Such plans and specifications shall be submitted to the Engineering and Building Codes Division of the Department of Insurance for approval. Plans and specifications for I-Institutional buildings licensed by the Division of Health Service Regulation as noted in (b) above shall be submitted to the Construction Section of that Division for review and approval.
6. Filing of Test Reports and Maintenance on Life Safety Equipment. - The engineer performing the design for the electrical and mechanical equipment, including sprinkler systems, must file the test results with the Engineering and Building Codes Division of the Department of Insurance, or to the agency designated by the Department of Insurance, that such systems have been tested to indicate that they function in accordance with the standards specified in this section and according to design criteria. These test results shall be a prerequisite for the Certificate of Compliance required by (b) above. Test results for I-Institutional shall be filed with the Construction Section, Division of Health Service Regulation. It shall be the duty and responsibility of the owners of Class I, II and III buildings to maintain smoke detection, fire detection, fire control, smoke removal and venting as required by this section and similar emergency systems in proper operating condition at all times. Certification of full tests and inspections of all emergency systems shall be provided by the owner annually to the fire department.
7. Applicability of Chapter X and Conflicts with Other Sections. - The requirements of this section shall be in addition to those of Sections 1001 through 1007; and in case of conflict, the requirements affording the higher degree of safety to life shall apply, as determined by the building official.
8. Classes of Buildings and Occupancy Classifications. - Buildings shall be classified as Class I, II or III according to Table 1008.1. In the case of mixed occupancies, for this purpose, the classification shall be the most restrictive one resulting from the application of the most prevalent occupancies to Table 1008.1.
   1. Assignment of a responsible person to work with the fire authority in the establishment, implementation and maintenance of the emergency pre-fire plan.
   2. Emergency plan procedures shall be supplied to all tenants and shall be posted conspicuously in each hotel guest room, each office area, and each schoolroom.
   3. Submission to the local fire authority of an annual renewal or amended emergency plan.
   4. Plan should be completed as soon as possible.

NOTE: Suggested reasonable time and procedures for owners to respond to the building official's request is as follows:

NOTE: Suggested Time Period For Compliance:

SUGGESTED TIME PERIOD FOR COMPLIANCE

--------------------------------------------------------------- ----------- CLASS I CLASS II CLASS III TIME FOR ITEM (SECTION) (SECTION) (SECTION) COMPLETION --------------------------------------------------------------- ----------- Signs in Elevator Lobbies and Elevator Cabs 1008.2(h) 1008.3(h) 1008.4(h) 180 days Emergency Evacuation Plan 1008(b) NOTE: 180 days Corridor Smoke Detectors (Includes alternative door closers) 1008.2(c) 1008.3(c) 1008.4(c) 1 year Manual Fire Alarm 1008.2(a) 1008.3(a) 1008.4(a) 1 year Voice Communication System Required 1008.2(b) 1008.3(b) 1008.4(b) 2 years Smoke Detectors Required 1008.2(c) 1008.3(c) 1008.4(c) 1 year Protection and Fire Stopping for Vertical Shafts 1008.2(f) 1008.3(f) 1008.4(f) 3 years Special Exit Requirements-Number, Location and Illum- ination to be in accordance with Section 1007 1008.2(e) 1008.3(e) 1008.4(e) 3 years Emergency Electrical Power Supply 1008.2(d) 1008.3(d) 1008.4(d) 4 years Special Exit Facilities Required 1008.2(e) 1008.3(e) 1008.4(e) 5 years Compartmentation for Institutional Buildings 1008.2(f) 1008.3(f) 1008.4(f) 5 years Emergency Elevator Requirements 1008.2(h) 1008.3(h) 1008.4(h) 5 years Central Alarm Facility Required 1008.3(i) 1008.4(i) 5 years Areas of Refuge Required on Every Eighth Floor 1008.4(j) 5 years Smoke Venting 1008.4(k) 5 years Fire Protection of Electrical Conductors 1008.4( l ) 5 years Sprinkler System Required 1008.4(m) 5 years

FOOTNOTE: Emergency Plan. - Owners, operators, tenants, administrators or managers of high-rise buildings should consult with the fire authority having jurisdiction and establish procedures which shall include but not necessarily be limited to the following:

1008.1 - ALL EXISTING BUILDINGS SHALL BE CLASSIFIED AS CLASS I, II AND III ACCORDING TO TABLE 1008.1.

TABLE 1008.1

Scope

--------------------------------------------------------------- ----------- OCCUPIED FLOOR CLASS (1) OCCUPANCY ABOVE AVERAGE GRADE GROUP (3)(4) EXCEEDING HEIGHT (2) --------------------------------------------------------------- ----------- Group R-Residential 60' but less than Group B-Business 120' above average Group E-Educational grade or 6 but less CLASS I Group A-Assembly than 12 stories above Group H-Hazardous average grade. Group I-Institutional-Restrained

________1

Group I-Institutional-Unrestrained 36' but less than 60' above average grade or 3 but less than 6 stories above average grade.

________

Group R-Residential 120' but less than Group B-Business 250' above average Group E-Educational grade or 12 but less CLASS II Group A-Assembly than 25 stories Group H-Hazardous above average grade. Group I-Institutional-Restrained

________

Group I-Institutional-Unrestrained 60' but less than 250' above average grade or 6 but less than 25 stories above average grade.

________

Group R-Residential 250' or 25 stories Group B-Business above average grade. CLASS III Group E-Educational Group I-Institutional Group A-Assembly Group H-Hazardous

NOTE 1: The entire building shall comply with this section when the building has an occupied floor above the height specified, except that portions of the buildings which do not exceed the height specified are exempt from this section, subject to the following provisions:

1. Low-rise portions of Class I buildings must be separated from high-rise portions by one-hour construction.
2. Low-rise portions of Class II and III buildings must be separated from high-rise portions by two-hour construction.
3. Any required exit from the high-rise portion which passes through the low-rise portions must be separated from the low-rise portion by the two-hour construction.

NOTE 2: The height described in Table 1008.1 shall be measured between the average grade outside the building and the finished floor of the top occupied story.

NOTE 3: Public parking decks meeting the requirements of Section 412.7 and less than 75 feet in height are exempt from the requirements of this section when there is no other occupancy above or below such deck.

NOTE 4: Special purpose equipment buildings, such as telephone equipment buildings housing the equipment only, with personnel occupant load limited to persons required to maintain the equipment may be exempt from any or all of these requirements at the discretion of the Engineering and Building Codes Division provided such special purpose equipment building is separated from other portions of the building by two-hour fire rated construction.

1008.2 - REQUIREMENTS FOR EXISTING CLASS I BUILDINGS.

All Class I buildings shall be provided with the following:

1. An approved manual fire alarm system, meeting the requirements of Section 1125 and applicable portions of NFPA 71, 72A, 72B, 72C or 72D, shall be provided unless the building is fully sprinklered or equipped with an approved automatic fire detection system connected to the fire department.
2. All Class I buildings shall meet the requirements of Sections 1001-1007.
3. Smoke Detectors Required. - At least one approved listed smoke detector tested in accordance with UL-167, capable of detecting visible and invisible particles of combustion shall be installed as follows:
   1. All buildings classified as institutional, residential and assembly occupancies shall be provided with listed smoke detectors in all required exit corridors spaced no further than 60' on center or more than 15' from any wall. Exterior corridors open to the outside are not required to comply with this requirement. If the corridor walls have one-hour fire resistance rating with all openings protected with 1-3/4 inch solid wood core or hollow metal door or equivalent and all corridor doors are equipped with approved self-closing devices, the smoke detectors in the corridor may be omitted. Detectors in corridors may be omitted when each dwelling unit is equipped with smoke detectors which activate the alarm system.
   2. In every mechanical equipment, boiler, electrical equipment, elevator equipment or similar room unless the room is sprinklered or the room is separated from other areas by two-hour fire resistance construction with all openings therein protected with approved fire dampers and Class B fire doors. (Approved listed fire (heat) detectors may be submitted for these rooms.)
   3. In the return air portion of every air conditioning and mechanical ventilation system that serves more than one floor.
   4. The activation of any detector shall activate the alarm system, and shall cause such other operations as required by this Code.
   5. The annunciator shall be located near the main entrance or in a central alarm and control facility.
4. Emergency Electrical Power Supply. - An emergency electrical power supply shall be provided to supply the following for a period of not less than two hours. An emergency electrical power supply may consist of generators, batteries, a minimum of two remote connections to the public utility grid supplied by multiple generating stations, a combination of the above.
   1. Emergency, exit and elevator cab lighting.
   2. Emergency illumination for corridors, stairs, etc.
   3. Emergency Alarms and Detection Systems. - Power supply for fire alarm and fire detection. Emergency power does not need to be connected to fire alarm or detection systems when they are equipped with their own emergency power supply from float or trickle charge battery in accordance with NFPA standards.
5. Special Exit Requirements. - Exits and exitways shall meet the following requirements:
   1. Protection of Stairways Required. - All required exit stairways shall be enclosed with noncombustible one-hour fire rated construction with a minimum of 13/4 inch solid core wood door or hollow metal door or 20 minute UL listed doors as entrance thereto. (See Section 1007.5).
   2. Number and Location of Exits. - All required exit stairways shall meet the requirements of Section 1007 to provide for proper number and location and proper fire rated enclosures and illumination of and designation for means of egress.
   3. Exit Outlets. - Each required exit stair shall exit directly outside or through a separate one-hour fire rated corridor with no openings except the necessary openings to exit into the fire rated corridor and from the fire rated corridor and such openings shall be protected with 13/4 inch solid wood core or hollow metal door or equivalent unless the exit floor level and all floors below are equipped with an approved automatic sprinkler system meeting the requirements of NFPA No. 13.
6. Smoke Compartments Required for I-Institutional Buildings. - Each occupied floor shall be divided into at least two compartments with each compartment containing not more than 30 institutional occupants. Such compartments shall be subdivided with one-half hour fire rated partitions which shall extend from outside wall to outside wall and from floor to and through any concealed space to the floor slab or roof above and meet the following requirements:
   1. Maximum area of any smoke compartment shall be not more than 22,500 square feet in area with both length and width limited to 150 feet.
   2. At least one smoke partition per floor regardless of building size forming two smoke zones of approximately equal size.
   3. All doors located in smoke partitions shall be properly gasketed to insure a substantial barrier to the passage of smoke and gases.
   4. All doors located in smoke partitions shall be no less than 13/4 inch thick solid core wood doors with UL, 1/4 inch wire glass panel in metal frames. This glass panel shall be a minimum of 100 square inches and a maximum of 720 square inches.
   5. Every door located in a smoke partition shall be equipped with an automatic closer. Doors that are normally held in the open position shall be equipped with an electrical device that shall, upon actuation of the fire alarm or smoke detection system in an adjacent zone, close the doors in that smoke partition.
   6. Glass in all corridor walls shall be 1/4", UL approved, wire glass in metal frames in pieces not to exceed 1296 square inches.
   7. Doors to all patient rooms and treatment areas shall be a minimum of 13/4 inch solid core wood doors except in fully sprinklered buildings.
7. Protection and Fire Stopping for Vertical Shafts. - All vertical shafts extending more than one floor including elevator shafts, plumbing shafts, electrical shafts and other vertical openings shall be protected with noncombustible two-hour fire rated construction with Class B-labeled door except for elevator doors which shall be hollow metal or equivalent. All vertical shafts which are not so enclosed must be fire stopped at each floor slab with noncombustible materials having a fire resistance rating of not less than two hours to provide an effective barrier to the passage of smoke, heat and gases from floor to floor through such shaft.
8. Signs in Elevator Lobbies and Elevator Cabs. - Each elevator lobby call station on each floor shall have an emergency sign located adjacent to the call button and each elevator cab shall have an emergency sign located adjacent to the floor status indicator. The required emergency sign shall be readable at all times and shall be a minimum of 1/2" high block letters with the words: "IN CASE OF FIRE DO NOT USE ELEVATOR - USE THE EXIT STAIRS" or other words to this effect.

NOTE 1: Limited area sprinklers may be supplied from the domestic water system provided the domestic water system is designed to support the design flow of the largest number of sprinklers in any one of the enclosed areas. When supplied by the domestic water system, the maximum number of sprinklers in any one enclosed room or area shall not exceed 20 sprinklers which must totally protect the room or area.

EXCEPTION: Shaft wall openings protected in accordance with NFPA No. 90A and openings connected to metal ducts equipped with approved fire dampers within the shaft wall opening do not need any additional protection.

1008.3 - REQUIREMENTS FOR EXISTING CLASS II BUILDINGS.

All Class II buildings must meet the following requirements:

1. Manual Fire Alarm. - Provide manual fire alarm system in accordance with Section 1008.2(a). In addition, buildings so equipped with sprinkler alarm system or automatic fire detection system must have at least one manual fire alarm station near an exit on each floor as a part of such sprinkler or automatic fire detection and alarm system. Such manual fire alarm systems shall report a fire by floor.
2. Voice Communication System Required. - An approved voice communication system or systems operated from the central alarm and control facilities shall be provided and shall consist of the following:
   1. One-Way Voice Communication Public Address System Required. - A one-way voice communication system shall be established on a selective basis which can be heard clearly by all occupants in all exit stairways, elevators, elevator lobbies, corridors, assembly rooms and tenant spaces.
3. Smoke Detectors Required. - Smoke detectors are required as per Section 1008.2(c). The following are additional requirements:
   1. Storage rooms larger than 24 square feet or having a maximum dimension of over eight feet shall be provided with approved fire detectors or smoke detectors installed in an approved manner unless the room is sprinklered.
   2. The actuation of any detectors shall activate the fire alarm system.
4. Emergency Electrical Power Supply. - An emergency electrical power supply shall be provided to supply the following for a period of not less than two hours. An emergency electrical power supply may consist of generators, batteries, a minimum of two remote connections to the public utility grid supplied by multiple generating stations, a combination of the above. Power supply shall furnish power for items listed in Section 1008.2(d) and the following:
   1. Pressurization Fans. - Fans to provide required pressurization, smoke venting or smoke control for stairways.
   2. Elevators. - The designated emergency elevator.
5. Special Exit Facilities Required. - The following exit facilities are required:
   1. The special exit facilities required in 1008.2(e) are required. All required exit stairways shall be enclosed with noncombustible two-hour fire rated construction with a minimum of 11/2 hour Class B-labeled doors as entrance thereto: (See Section 1007.5).
   2. Smoke-Free Stairways Required. - At least one stairway shall be a smoke free stairway in accordance with Section 1104.2 or at least one stairway shall be pressurized to between 0.15 inch and 0.35 inch water column pressure with all doors closed. Smoke-free stairs and pressurized stairs shall be identified with signs containing letters a minimum of 1/2 inch high containing the words "PRIMARY EXIT STAIRS" unless all stairs are smoke free or pressurized. Approved exterior stairways meeting the requirements of Chapter XI or approved existing fire escapes meeting the requirements of Chapter X with all openings within 10 feet protected with wire glass or other properly designed stairs protected to assure similar smoke-free vertical egress may be permitted. All required exit stairways shall also meet the requirements of Section 1008.2(e).
   3. If stairway doors are locked from the stairway side, keys shall be provided to unlock all stairway doors on every eighth floor leading into the remainder of the building and the key shall be located in a glass enclosure adjacent to the door at each floor level (which may sound an alarm when the glass is broken). When the key unlocks the door, the hardware shall be of the type that remains unlocked after the key is removed. Other means, approved by the building official may be approved to enable occupants and fire fighters to readily unlock stairway doors on every eighth floor that may be locked from the stairwell side. The requirements of this section may be eliminated in smoke-free stairs and pressurized stairs provided fire department access keys are provided in locations acceptable to the local fire authority.
6. Compartmentation for I-Institutional Buildings Required. - See Section 1008.2(f).
7. Protection and Fire Stopping for Vertical Shafts. - All vertical shafts extending more than one floor including elevator shafts, plumbing shafts, electrical shafts and other vertical openings shall be protected with noncombustible two-hour fire rated construction with Class B-labeled door except for elevator doors which shall be hollow metal or equivalent. All vertical shafts which are not so enclosed must be fire stopped at each floor slab with noncombustible materials having a fire resistance rating of not less than two hours to provide an effective barrier to the passage of smoke, heat and gases from floor to floor through such shaft.
8. Emergency Elevator Requirements.
   1. Elevator Recall. - Each elevator shall be provided with an approved manual return. When actuated, all cars taking a minimum of one car at a time, in each group of elevators having common lobby, shall return directly at normal car speed to the main floor lobby, or to a smoke-free lobby leading most directly to the outside. Cars that are out of service are exempt from this requirement. The manual return shall be located at the main floor lobby.
   2. Identification of Emergency Elevator. - At least one elevator shall be identified as the emergency elevator and shall serve all floor levels. NOTE: This elevator will have a manual control in the cab which will override all other controls including floor call buttons and door controls.
   3. Signs in Elevator Lobbies and Elevator Cabs. - Each elevator lobby call station on each floor shall have an emergency sign located adjacent to the call button and each elevator cab shall have an emergency sign located adjacent to the floor status indicator. These required emergency signs shall be readable at all times and shall be a minimum of 1/2 inch high block letters with the words: "IN CASE OF FIRE DO NOT USE ELEVATOR - USE THE EXIT STAIRS" or other words to this effect.
   4. Master keys for access from all stairways to all floors.
   5. One-way voice emergency communications system controls.

NOTE 1: This system shall function so that in the event of one circuit or speaker being damaged or out of service, the remainder of the system shall continue to be operable.

NOTE 2: This system shall include provisions for silencing the fire alarm devices when the loud speakers are in use, but only after the fire alarm devices have operated initially for not less than 15 seconds.

EXCEPTION: Shaft wall openings protected in accordance with NFPA No. 90A and openings connected to metal ducts equipped with approved fire dampers within the shaft wall opening do not need any additional protection.

NOTE: Manually operated cars are considered to be in compliance with this provision if each car is equipped with an audible or visual alarm to signal the operator to return to the designated level.

(1) Facilities to automatically transmit manual and automatic alarm signals to the fire department either directly or through a signal monitoring service.

(2) Public service telephone.

(3) Fire detection and alarm systems annunciator panels to indicate the type of signal and the floor or zone from which the fire alarm is received. These signals shall be both audible and visual with a silence switch for the audible.

NOTE: Detectors in HVAC systems used for fan shut down need not be annunciated.

1008.4 - REQUIREMENTS FOR EXISTING CLASS III BUILDINGS.

All Class III Buildings shall be provided with the following:

1. Manual Fire Alarm System. - A manual fire alarm system meeting the requirements of Section 1008.3(a).
2. Voice Communication System Required. - An approved voice communication system or systems operated from the central alarm and control facilities shall be provided and shall consist of the following:
   1. One-Way Voice Communication Public Address System Required. - A one-way voice communication system shall be established on a selective or general basis which can be heard clearly by all occupants in all elevators, elevator lobbies, corridors, and rooms or tenant spaces exceeding 1,000 sq. ft. in area.
   2. Two-way system for use by both fire fighters and occupants at every fifth level in stairways and in all elevators.
   3. Within the stairs at levels not equipped with two-way voice communications, signs indicating the location of the nearest two-way device shall be provided.
3. Smoke Detectors Required. - Approved listed smoke detectors shall be installed in accordance with Section 1008.3(c) and in addition, such detectors shall terminate at the central alarm and control facility and be so designed that it will indicate the fire floor or the zone on the fire floor.
4. Amendments of the Code. - Subject to the procedures set forth in G.S. 143-136(c) and (d), the Building Code Council may periodically revise and amend the North Carolina State Building Code, either on its own motion or upon application from any citizen, State agency, or political subdivision of the State. In addition to the periodic revisions or amendments made by the Council, the Council shall, following the procedure set forth in G.S. 143-136(c), revise the North Carolina State Building Code: Residential Code for One- and Two-Family Dwellings, including provisions applicable to One- and Two-Family Dwellings from the NC Energy Code, NC Electrical Code, NC Fuel Gas Code, NC Plumbing Code, and NC Mechanical Code only every six years, to become effective the first day of January of the following year, with at least six months between adoption and effective date. The first six-year revision under this subsection shall be adopted to become effective January 1, 2019, and every six years thereafter. In adopting any amendment, the Council shall comply with the same procedural requirements and the same standards set forth above for adoption of the Code. The Council, through the Department of Insurance, shall publish in the North Carolina Register all appeal decisions made by the Council and all formal opinions at least semiannually. The Council, through the Department of Insurance, shall also publish at least semiannually in the North Carolina Register a statement providing the accurate Web site address and information on how to find additional commentary and interpretation of the Code.
5. Special Exit Requirements. - All exits and exitways shall meet the requirements of Section 1008.3(e).
6. Compartmentation of Institutional Buildings Required. - See Section 1008.2(f).
7. Protection and Fire Stopping for Vertical Shafts. - Same as Class II buildings. See Section 1008.3(g).
8. Emergency Elevator Requirements.
   1. Primary Emergency Elevator. - At least one elevator serving all floors shall be identified as the emergency elevator with identification signs both outside and inside the elevator and shall be provided with emergency power to meet the requirements of Section 1008.3(c).
   2. Elevator Recall. - Each elevator shall be provided with an approved manual return. When actuated, all cars taking a minimum of one car at a time, in each group of elevators having common lobby, shall return directly at normal car speed to the main floor lobby or to a smoke-free lobby leading most directly to the outside. Cars that are out of service are exempt from this requirement. The manual return shall be located at the main floor lobby.
   3. Signs in Elevator Lobbies and Elevator Cabs. - Each elevator lobby call station on each floor shall have an emergency sign located adjacent to the call button and each elevator cab shall have an emergency sign located adjacent to the floor status indicator. These required emergency signs shall be readable at all times and have a minimum of 1/2" high block letters with the words: "IN CASE OF FIRE, UNLESS OTHERWISE INSTRUCTED, DO NOT USE THE ELEVATOR - USE THE EXIT STAIRS" or other words to this effect.
   4. Machine Room Protection. - When elevator equipment located above the hoistway is subject to damage from smoke particulate matter, cable slots entering the machine room shall be sleeved beneath the machine room floor to inhibit the passage of smoke into the machine room.
   5. Secondary Emergency Elevator. - At least one elevator located in separate shaft from the Primary Emergency Elevator shall be identified as the "Secondary Emergency Elevator" with identification signs both outside and inside the elevator. It will serve all occupied floors above 250 feet and shall have all the same facilities as the primary elevator and will be capable of being transferred to the emergency power system.
9. Central Alarm and Control Facilities Required.
10. Elevator status indicator.
11. Direct communication to the central alarm facility.
12. Areas of Refuge Required. - Class III buildings shall be provided with a designated "area of refuge" at the 250 ft. level and on at least every eighth floor or fraction thereof above that level to be designed so that occupants above the 250 ft. level can enter at all times and be safely accommodated in floor areas meeting the following requirements unless the building is completely sprinklered:
    1. Identification and Size. - These areas of refuge shall be identified on the plans and in the building as necessary. The area of refuge shall provide not less than 3 sq. ft. per occupant for the total number of occupants served by the area based on the occupancy content calculated by Section 1105. A minimum of two percent (2%) of the number of occupants on each floor shall be assumed to be handicapped and no less than 16 sq. ft. per handicapped occupant shall be provided. Smoke proof stairways meeting the requirements of Section 1104.2 and pressurized stairways meeting the requirements of Section 1108.3(e)(2) may be used for ambulatory occupants at the rate of 3 sq. ft. of area of treads and landings per person, but in no case shall the stairs count for more than one-third of the total occupants. Doors leading to designated areas of refuge from stairways or other areas of the building shall not have locking hardware or shall be automatically unlocked upon receipt of any manual or automatic fire alarm signal.
    2. Pressurized. - The area of refuge shall be pressurized with 100% fresh air utilizing the maximum capacity of existing mechanical building air conditioning system without recirculation from other areas or other acceptable means of providing fresh air into the area.
    3. Fire Resistive Separation. - Walls, partitions, floor assemblies and roof assemblies separating the area of refuge from the remainder of the building shall be noncombustible and have a fire resistance rating of not less than one hour. Duct penetrations shall be protected as required for penetrations of shafts. Metallic piping and metallic conduit may penetrate or pass through the separation only if the openings around the piping or conduit are sealed on each side of the penetrations with impervious noncombustible materials to prevent the transfer of smoke or combustion gases from one side of the separation to the other. The fire door serving as a horizontal exit between compartments shall be so installed, fitted and gasketed to provide a barrier to the passage of smoke.
    4. Access Corridors. - Any corridor leading to each designated area of refuge shall be protected as required by Sections 1104 and 702. The capacity of an access corridor leading to an area of refuge shall be based on 150 persons per unit width as defined in Section 1105.2. An access corridor may not be less than 44 inches in width. The width shall be determined by the occupant content of the most densely populated floor served. Corridors with one-hour fire resistive separation may be utilized for area of refuge at the rate of three sq. ft. per ambulatory occupant provided a minimum of one cubic ft. per minute of outside air per square foot of floor area is introduced by the air conditioning system.
    5. Penetrations. - The continuity of the fire resistance at the juncture of exterior walls and floors must be maintained.
13. Smoke Venting. - Smoke venting shall be accomplished by one of the following methods in nonsprinklered buildings:
    1. In a nonsprinklered building, the heating, ventilating and air conditioning system shall be arranged to exhaust the floor of alarm origin at its maximum exhausting capacity without recirculating air from the floor of alarm origin to any other floor. The system may be arranged to accomplish this either automatically or manually. If the air conditioning system is also used to pressurize the areas of refuge, this function shall not be compromised by using the system for smoke removal.
    2. Venting facilities shall be provided at the rate of 20 square feet per 100 lineal feet or 10 square feet per 50 lineal feet of exterior wall in each story and distributed around the perimeter at not more than 50 or 100 foot intervals openable from within the fire floor. Such panels and their controls shall be clearly identified.
    3. Any combination of the above two methods or other approved designs which will produce equivalent results and which is acceptable to the building official.
14. Fire Protection of Electrical Conductors. - New electrical conductors furnishing power for pressurization fans for stairways, power for emergency elevators and fire pumps required by Section 1008.4(d) shall be protected by a two-hour fire rated horizontal or vertical enclosure or structural element which does not contain any combustible materials. Such protection shall begin at the source of the electrical power and extend to the floor level on which the emergency equipment is located. It shall also extend to the emergency equipment to the extent that the construction of the building components on that floor permits. New electrical conductors in metal raceways located within a two-hour fire rated assembly without any combustible therein are exempt from this requirement.
15. Automatic Sprinkler Systems Required.
    1. All areas which are classified as Group M-mercantile and Group H-hazardous shall be completely protected with an automatic sprinkler system.
    2. All areas used for commercial or institutional food preparation and storage facilities adjacent thereto shall be provided with an automatic sprinkler system.
    3. An area used for storage or handling of hazardous substances shall be provided with an automatic sprinkler system.
    4. All laboratories and vocational shops in Group E, Educational shall be provided with an automatic sprinkler system.
    5. Sprinkler systems shall be in strict accordance with NFPA No. 13 and the following requirements:
16. Subsection (i) of this section does not apply to business occupancy buildings as defined in the North Carolina State Building Code except that evacuation plans as required on page 8, lines 2 through 16 [Section 1008, footnote following subsection (h)], and smoke detectors as required for Class I Buildings as required by Section 1008.2, page 11, lines 5 through 21 [Section 1008.2, subdivision (c)(1)]; Class II Buildings as required by Section 1008.3, page 17, lines 17 through 28 and page 18, lines 1 through 10 [Section 1008.3, subsections (c) and (d)]; and Class III Buildings, as required by Section 1008.4, lines 21 through 25 [Section 1008.4, subsection (c)] shall not be exempted from operation of this act as applied to business occupancy buildings, except that the Council shall adopt rules that allow a business occupancy building built prior to 1953 to have a single exit to remain if the building complies with the Building Code on or before December 31, 2006.
17. A nonbusiness occupancy building built prior to the adoption of the 1953 Building Code that is not in compliance with Section 402.1.3.5 of Volume IX of the Building Code or Section 3407.2.2 of Volume I of the Building Code must comply with the applicable sections by December 31, 2006.
18. Repealed by Session Laws 2014-79, s. 5, effective July 22, 2014.
19. For purposes of use in the Code, the term "Family Care Home" shall mean an adult care home having two to six residents.
20. When any question arises as to any provision of the Code, judicial notice shall be taken of that provision of the Code.

NOTE 1: This system shall be designed so that in the event of one circuit or speaker being damaged or out of service the remainder of the system shall continue to be operable.

NOTE 2: This system shall include provisions for silencing the fire alarm devices when the loud speakers are in use, but only after the fire alarm devices have operated initially for not less than 15 seconds.

NOTE: The one-way and two-way voice communication systems may be combined.

NOTE: This elevator will have a manual control in the cab which will override all other controls including floor call buttons and door controls.

NOTE: Manually operated cars are considered to be in compliance with this provision if each car is equipped with an audible or visual alarm to signal the operator to return to the designated level.

NOTE: Emergency power supply can be sized for nonsimultaneous use of the primary and secondary emergency elevators.

NOTE: Detectors in HVAC systems used for fan shut down need not be annunciated.

(2) A control facility (fire department command station) shall be provided at or near the fire department response point and shall contain the following:

NOTE: Not required in buildings where there is a status indicator at the main elevator lobby.

(ii) Master keys for access from all stairways to all floors.

(iii) Controls for the two-way communication system.

(iv) Fire detection and alarm system annunciator panels to indicate the type of signal and the floor or zone from which the fire alarm is received.

(3) The central alarm and control facilities may be combined in a single approved location. If combined, the duplication of facilities and the direct communication system between the two may be deleted.

The sprinkler system must be equipped with a water flow and supervisory signal system that will transmit automatically a water flow signal directly to the fire department or to an independent signal monitoring service satisfactory to the fire department.

History

(1957, c. 1138; 1969, c. 567; c. 1229, ss. 2-6; 1971, c. 1100, ss. 1, 2; 1973, c. 476, ss. 84, 128, 138, 152; c. 507, s. 5; 1981, c. 677, s. 3; c. 713, ss. 1, 2; 1981 (Reg. Sess., 1982), c. 1282, s. 20.2D; c. 1348, s. 1; 1983, c. 614, s. 3; 1985, c. 576, s. 1; c. 622, s. 2; c. 666, s. 39; 1989, c. 25, s. 2; c. 681, ss. 2, 3, 9, 10, 18, 19; c. 727, ss. 157, 158; 1991 (Reg. Sess., 1992), c. 895, s. 1; 1993, c. 329, ss. 1, 3; c. 539, s. 1009; 1994, Ex. Sess., c. 24, s. 14(c); 1995, c. 111, s. 1; c. 242, s. 1; c. 507, s. 27.8(r); c. 535, s. 30; 1997-26, ss. 1-3, 5; 1997-443, ss. 11A.93, 11A.94, 11A.118(a), 11A.119(a); 1998-57, s. 2; 1998-172, s. 1; 1998-202, s. 4(u); 1999-456, s. 40; 2000-137, s. 4(x); 2000-140, s. 93.1(a); 2001-141, ss. 1, 2, 3, 4; 2001-421, ss. 1.1, 1.2, 1.5; 2001-424, s. 12.2(b); 2002-144, s. 5; 2003-221, s. 6; 2003-284, s. 22.2; 2004-124, ss. 21.1, 21.2; 2005-205, s. 6; 2007-182, ss. 1, 2; 2007-529, s. 1; 2007-542, s. 1; 2008-176, s. 2; 2008-219, s. 1; 2009-79, s. 1(a)-(c); 2009-243, s. 1; 2009-532, s. 1; 2009-570, s. 18; 2010-97, s. 6(b); 2011-145, s. 19.1(mm); 2011-364, s. 1; 2012-34, s. 1; 2012-187, s. 16.1; 2013-75, s. 1; 2013-118, ss. 2, 3; 2013-206, s. 2; 2013-265, s. 18; 2013-413, ss. 19(a), 41; 2014-79, s. 5; 2014-90, s. 1; 2014-115, s. 17; 2014-120, s. 22(c); 2015-145, ss. 4.1, 5.2; 2015-241, s. 14.30(s), (u); 2015-263, s. 34; 2016-113, s. 13(a); 2017-10, s. 1.3(b); 2017-108, s. 8(b); 2017-130, s. 8(a); 2017-212, s. 8.11; 2017-186, s. 2(aaaaaa); 2018-65, s. 2(a); 2019-174, s. 4.)

Local Modification. - Towns of Boone and Blowing Rock: 1987, c. 226; town of Carrboro: 1995 (Reg. Sess., 1996), c. 571, s. 1; town of Chapel Hill: 1981, c. 911; 1987, c. 460, s. 3; 1995 (Reg. Sess., 1996), c. 571, s. 1; town of Edenton: 1989 (Reg. Sess., 1990), c. 829; towns of Kill Devil Hills and Nags Head: 1987 (Reg. Sess., 1988), c. 911, s. 1.

Regulation of Hazardous Materials Facilities Task Force. - Session Laws 2007-107, s. 4.1(a)-(j), created the Regulation of Hazardous Materials Facilities Task Force, provided for its membership, duties, staffing, final report, and termination on filing the report. Specifically, Session Laws 2007-107, s. 4(k), provides:

"(k) North Carolina Building Code Council to Adopt Rules. - The North Carolina Building Code Council shall adopt rules or amend the State Building Code to implement the recommendations of the Regulation of Hazardous Materials Facilities Task Force. In particular, the Building Code Council shall adopt rules or amend the State Building Code to require that hazardous materials are classified and identified in a manner that provides State and local inspectors with sufficient information to identify all potential risks to the citizens of the State."

Building Code Exemption - Session Laws 2017-104, s. 1(a)-(c), provides:

"(a) Notwithstanding any provision of the North Carolina State Building Code to the contrary, if a lot line or public way exists between a single city-owned lot and a single privately owned lot, a parking garage that extends across the lot line or public way between the two lots may be constructed as if the city-owned lot has been combined with the privately owned lot such that there is no lot line or public way between them.

"(b) This section shall apply only to municipalities with a population of more than 250,000.

"(c) This section expires June 30, 2020."

Editor's Note. - Session Laws 1971, c. 1100, which amended this section, provided in s. 3: "Provided that nothing in this act shall in any way apply to any type of farm building."

Session Laws 1989, c. 681, s. 21 provides: "Section 10 [which amended subsection (e)] and Sections 14 through 17 shall become effective upon the adoption of fire protection code provisions by the North Carolina Building Code Council." Fire protection code provisions were adopted effective July 1, 1991.

Session Laws 1989, c. 25, s. 4 provides: "All statutory authority, powers, and duties, including rule making and the rendering of findings, orders, and adjudications, of the Department of Agriculture pertaining to the regulation of the design, construction, location, installation, or operation of equipment for storing, handling, transporting, and utilizing liquefied petroleum gases for fuel purposes, from the outlet of the first stage pressure regulator to and including each liquefied petroleum gas utilization device within a building or structure covered by the North Carolina Building Code are transferred to the Building Code Council.

"Until the Building Code Council adopts rules regarding the entry of liquefied petroleum gas service piping into a building, 2 NCAC 38 .0701(2) shall remain in effect."

The references in brackets in subsection (j) have been inserted to guide the reader to what appear to be the general locations of the provisions referred to by the page and line references. The page and line references are printed just as they are set out in the ratified bill, Session Laws 1981, c. 713, but the line references in particular do not correspond to lines in the ratified bill, and their intention is not always clear.

Session Laws 1995, c. 111, s. 4, effective May 29, 1995, provides that the amendment made by section 1, which added the last two sentences of the second paragraph of subsection (b), shall not be construed to imply that the Building Code Council did not have the authority contained in that amendment prior to the effective date of the amendment.

Session Laws 1998-172, s. 2 provides that local floodplain management ordinances adopted as of the effective date of Section 5 of Session Laws 1997-26 (April 17, 1997) continue in effect until repealed.

Session Laws 2001-219, s. 1, provides: "Notwithstanding any provision of the State Building Code or any public or local law to the contrary, including Chapter 143 of the General Statutes, counties may establish by ordinance the requirements for bathroom facilities, including the number of toilets required, in buildings that are used primarily for outdoor school sporting events."

Session Laws 2001-219, s. 2, provides: "This act is effective when it becomes law, and only applies to counties that (i) have a population of 190,000 or more according to the most recent decennial federal census and (ii) border both another state and county with a population of 650,000 or more according to the most recent decennial federal census."

Session Laws 2003-239, ss. 1 and 2, provide: "Notwithstanding any requirements for additional plumbing facilities imposed under Section 403.3.1.4, Table 403.1 and Table 403.4 of Chapter 4 of the North Carolina Plumbing Code, 2002 Edition, a public university, as part of its addition of bleachers to an existing softball field, shall not be required to provide facilities in addition to those facilities currently existing at the stadium.

"This act applies to public universities located in counties that (i) have a population of 160,000 or more according to the most recent decennial federal census; (ii) border the Atlantic Ocean; and (iii) border no more than two other counties that are a part of this State."

This section was amended by Session Laws 2007-542, s. 1, in the coded bill drafting format provided by G.S. 120-20.1. The act failed to use underscoring to indicate the insertion of the words "the following" at the end of the seventh paragraph in subsection (b). Subsection (b) has been set out in the form above at the direction of the Revisor of Statutes.

Session Laws 2009-79, s. 2, provides: "Nothing in this act shall be construed to limit the authority of the North Carolina Department of Labor to perform safety inspections of hydraulic elevators."

Session Laws 2009-79, s. 3, provides: "The Commissioner of Labor shall adopt rules pursuant to Article 14A of Chapter 95 of the General Statutes (Elevator Act of North Carolina) to require, in any building or structure having more than one elevator, the posting of a distinct number in plain view in the passenger cabin of each elevator for the purpose of identification of the elevator to facilitate extrication from any elevator that malfunctions while occupied."

Session Laws 2009-206, s. 2, provides: "Notwithstanding any established expiration date for the application of the 2006 North Carolina State Building Code occurring prior to August 1, 2009, a county may obtain a permit until August 1, 2009 under the 2006 North Carolina State Building Codes (Building, Energy Conservation, Fire, Fuel Gas, Mechanical, and Plumbing) for the construction of facilities to be used for administrative purposes."

Session Laws 2009-243, s. 1, effective June 30, 2009, and applicable to any cistern, as defined in this section, installed on or after that date that is used to provide water for flushing toilets or for outdoor irrigation, added the language designated herein as subsection (b12).

Session Laws 2011-269, ss. 1 and 2 provide: "1. Notwithstanding G.S. 150B-21.3, or any other provision of law, if approved by the Rules Review Commission, the following rules adopted by the Building Code Council on April 21, 2011, shall become effective January 1, 2012.

"2012 NC Fire Code - Appendices 101.2.1;

"2012 NC Residential Code - Egress Door R311.2;

"2012 NC Residential Code - Minimum Width of Footings Table R403.1;

"2012 NC Residential Code - Concrete Masonry Foundation Details Figure R 403.3(1);

"2012 NC Residential Code - Foundation Vent Sizing R408.1.1;

"2012 NC Residential Code - Ground Vapor Retarder R408.2;

"2012 NC Residential Code - Framing Details R802.3;

"2012 NC Residential Code - Attic Access R807.1.

"2. Notwithstanding G.S. 150B-21.3, or any other provision of law, the 2012 North Carolina Energy Conservation Code, as adopted by the Building Code Council on December 14, 2010, and approved by the Rules Review Commission on February 17, 2011, and the 2012 North Carolina Residential Code, as adopted by the Building Code Council on December 14, 2010, and approved by the Rules Review Commission on March 17, 2011, shall take effect on January 1, 2012, with a mandatory compliance date of March 1, 2012."

Session Laws 2013-77, s. 1, provides: "Definitions. - As used in this act, 'Council' means the Building Code Council, 'Code' means the 2012 NC Building Code, and 'Homeless Shelter Provision' means the requirement set forth in Section 424.1.1 of the North Carolina Building Code requiring that homeless occupants of a temporary overflow shelter for the homeless be over the age of 18."

Session Laws 2013-77, s. 2, provides: "New Code amendment. - Until the effective date of the Code amendment that the Council is required to adopt pursuant to Section 4 of this act, the Council and local governments enforcing the Code shall implement Section 424.1.1, as provided in Section 3 of this act."

Session Laws 2013-77, s. 3, provides: "Implementation. - Notwithstanding any provision of the Code to the contrary, temporary overflow emergency shelters for the homeless may house occupants under the age of 18 when the shelter meets the following requirements:

"(1) The shelter is intended to serve homeless families that include children under 18 and their parents or other legal guardians.

"(2) The temporary shelter consists of a group of churches or other nonprofit religious entities that have agreed to host the shelter occupants on the premises of each church or religious entity on a rotating basis.

"(3) The shelter is equipped with smoke detectors meeting applicable Code provisions for such devices in all sleeping areas."

Session Laws 2013-77, s. 4, provides: "Additional rule-making authority. - Notwithstanding G.S. 150B-19(4), the Commission shall adopt amendments to the Homeless Shelter Provision to be substantively identical to the provisions of Section 3 of this act. Rules adopted pursuant to this section are not subject to G.S. 150B-21.8 through G.S. 150B-21.14. Rules adopted pursuant to this section shall become effective as provided in G.S. 150B-21.3(b1) as though 10 or more written objections had been received as provided by G.S. 150B-21.3(b2)."

Session Laws 2013-77, s. 5, provides: "Sunset. - Section 3 of this act expires on the date that rules adopted pursuant to Section 4 of this act become effective."

Session Laws 2013-206, s. 4, made subsection (j2), as added by Session Laws 2013-206, s. 2, applicable to tall buildings and structures for which construction is initiated on or after October 1, 2013.

Session Laws 2013-265, s. 1, provides: "This act shall be known and may be cited as the 'North Carolina Farm Act of 2013.'"

Session Laws 2013-265, s. 18, and Session Laws 2013-413, s. 41, each add a new subsection (b13). Session Laws 2013-413, s. 41 is designated (b14).

Session Laws 2013-413, s. 61(b), provides: "Except as otherwise provided, this act is effective when it becomes law [August 23, 2013]." Session Laws 2013-413, s. 60(c), had provided that: "This act becomes effective July 1, 2015."

Session Laws 2013-413, s. 61(a) is a severability clause.

Session Laws 2014-90, s. 7, provides: "The Building Code Council, the Environmental Management Commission, the Coastal Management Commission, and the Department of Environment and Natural Resources shall amend their rules to conform with this act."

Session Laws 2014-90, s. 8, is a severability clause.

Session Laws 2014-103, s. 14(a)-(c), provides: "Notwithstanding Section 1008.1.4.5 of the 2012 NC State Building Code (Fire Code), horizontal sliding or vertical security grilles shall be permitted at all exits or exit access doorways, provided that the grilles are openable from the inside without the use of a key or special knowledge or effort during periods that the space is occupied by authorized persons and that the grilles remain secured in the full-open position during the period of occupancy by the general public.

"(b) The Building Code Council shall adopt a rule to amend Section 1008.1.4.5 of the 2012 NC State Building Code (Fire Code) consistent with Section 14(a) of this section.

"(c) Section 14(a) of this section expires on the date that the rule adopted pursuant to Section 14(b) of this section becomes effective.

Session Laws 2014-115, s. 17, amended Session Laws 2013-413, s. 60(c), to replace the reference to "This act" with the words "This Part."

Session Laws 2014-120, s. 22(e), provides: "No later than March 31, 2015, the Building Code Council shall adopt a rule to amend the NC State Building Code (Fire Prevention) as it applies to structures required to comply with the provisions of G.S. 143-138(b2)(2), as enacted by this section, to adopt the standards for carbon monoxide alarms contained in the 2015 International Fire Code promulgated by the International Code Council. The effective date of the rule required by this section shall be no later than June 1, 2015."

Session Laws 2014-120, s. 60, is a severability clause.

Session Laws 2015-19, ss. 1-5, provides: "1. Definitions. - As used in this act, "Council" means the Building Code Council, "Code" means the current North Carolina Building Code as adopted by the Council, and "open air camp cabin" means a single-story structure that (i) has three walls consisting of at least twenty percent (20%) screened openings no more than 44 inches above the floor; (ii) has no heating or cooling system; (iii) is occupied for no more than 150 days within any rolling 365-day time span; and (iv) accommodates 36 or fewer persons.

"2. New Code amendment. - Until the effective date of the Code amendment that the Council is required to adopt pursuant to Section 4 of this act, the Council and local governments enforcing the Code shall follow the provisions of Section 3 of this act with respect to open air camp cabins.

"3. Implementation. - Notwithstanding any provision of the Code to the contrary, the Council shall not enforce any requirements more stringent than the following for open air camp cabins:

"(1) The open air camp cabin shall have at least two remote unimpeded exits, but lighted exit signs shall not be required.

"(2) The open air camp cabin shall not be required to have plumbing or electrical systems, but if the cabin has these systems, then the provisions of the Code otherwise applicable to those systems shall apply.

"(3) Smoke detectors and handheld fire extinguishers may be required as otherwise provided in the Code, but no requirement for a sprinkler system shall be imposed.

"4. Rule-making authority. - Notwithstanding G.S. 150B-19(4), the Commission shall adopt rules establishing a new residential occupancy category under Section 310 of the Code for open air camp cabins that are substantively identical to the provisions of Section 3 of this act.

"5. Sunset. - Section 3 of this act expires on the date that rules adopted pursuant to Section 4 of this act become effective."

Session Laws 2016-113, s. 17(b), effective October 1, 2016, provides: "The Building Code Council shall amend the State Electrical Code and the State Plumbing Code consistent with this section." Session Laws 2016-113, s. 17(a) amended G.S. 87-97.

Session Laws 2016-113, s. 19(a), is a severability clause.

Session Laws 2017-10, s. 5.1, is a severability clause.

Session Laws 2019-174, s. 10, provides: "To promote uniformity in plan review and interpretation of the North Carolina State Building Code among those cities and counties that require review of building plans for structures subject to regulation under North Carolina Residential Code for One- and Two-Family Dwellings, the North Carolina Department of Insurance shall issue a guidance paper by October 1, 2019."

Session Laws 2019-174, s. 11, provides: "The North Carolina Building Code Council shall consult with the Department of Environmental Quality to study options for the use by builders of debris, such as dirt, sand, gravel, rock, concrete, or similar nonhazardous material for additional uses at the site of construction, including fill under porches, driveways, and other options that will decrease the volume of demolition debris sent to solid waste disposal facilities. The Council shall report its findings and recommendations, including any proposed legislative changes, to the 2020 Regular Session of the 2019 General Assembly when it convenes."

Session Laws 2020-74, s. 18, provides: "Notwithstanding G.S. 150B-21.3(b1), the following rules, as adopted by the North Carolina Building Code Council on March 10, 2020, and approved by the Rules Review Commission on May 21, 2020, shall not become effective:

"1102.7 (2018 NC Plumbing Code/Fittings).

"1102.2 (2018 NC Plumbing Code/Inside Storm Drainage Conductors).

"702.4 (2018 NC Plumbing Code/Fittings).

"702.1 (2018 NC Plumbing Code/Above-Ground Sanitary Drainage and Vent Pipe)."

Effect of Amendments. - Session Laws 2002-144, s. 5, as amended by Session Laws 2004-124, s. 21.1, effective July 1, 2002, in subsection (g), deleted the Clerk of the Superior Court from the list of government officials who receive a copy of the State Building Code, changed the number of copies of the State Building Code received by the Department of Cultural Resources State Library from 5 to 1, changed the number of copies of the State Building Code received by the Supreme Court Library from 2 to 1, and added the second sentence in the last paragraph.

Session Laws 2004-124, s. 21.2, effective July 1, 2004, deleted the second paragraph of subsection (d).

Session Laws 2005-205, s. 6, effective July 1, 2006, added the last undesignated paragraph in subsection (b).

Session Laws 2007-182, ss. 1 and 2, effective July 5, 2007, in the Section 1008 of Chapter X of Volume 1 of the North Carolina State Building Code, which appears in subdivision (b)(3), substituted "Commission for Public Health" for "Commission for Health Services" once, and substituted "Division of Health Service Regulation" for "Division of Facility Services" three times.

Session Laws 2007-529, s. 1, effective August 31, 2007, added the tenth paragraph in subsection (b).

Session Laws 2008-176, s. 2, effective August 4, 2008, rewrote the fifth paragraph of subsection (b).

Session Laws 2008-219, s. 1, effective August 16, 2008, added the third paragraph in subsection (b).

Session Laws 2009-79, s. 1(a)-(c), effective June 11, 2009, in subsection (b), added the exception at the beginning of the fourth paragraph; added subsection (c1); and in subsection (e), in the first paragraph, added the exception at the beginning, and added the last paragraph.

Session Laws 2009-532, s. 1, effective October 1, 2009, rewrote subsection (b5).

Session Laws 2009-570, s. 18, effective August 28, 2009, added "the following:" in the second paragraph of subsection (b6).

Session Laws 2010-97, s. 6(b), effective July 20, 2010, substituted "burning heater, appliance, or fireplace, and in any dwelling unit having an attached garage" for "burning heater or appliance, fireplace, or an attached garage" in the first sentence of subsection (b2).

Session Laws 2011-145, s. 19.1(mm), effective January 1, 2012, substituted "Division of Juvenile Justice of the Department of Public Safety" for "Office of Juvenile Justice" in subsection (g).

Session Laws 2011-364, s. 1, effective June 27, 2011, and applicable to all farm buildings, including farm buildings where construction either began or was completed prior to that date, in subdivision (b4)(1), deleted the former last sentence and added the last two sentences.

Session Laws 2012-34, s. 1, effective June 20, 2012, inserted "or acquired by a State-supported center providing testing, research, and development services to manufacturing clients" in the third sentence of subsection (b9).

Session Laws 2012-187, s. 16.1, effective July 16, 2012, added subdivision (b4)(3).

Session Laws 2013-75, s. 1, effective June 12, 2013, in subsection (b3), substituted "subsections (b4) and (c1)" for "subsection (c1)" near the beginning, subsection (b4), deleted "or" following "municipality", inserted "(iii) a primitive camp, or (iv) a primitive farm building" in the first sentence; and added subdivisions (b4)(4 and (b4)(5).

Session Laws 2013-118, s. 2, effective July 1, 2013, in subsection (d), added "periodically" in the first sentence, and the second, third, fifth and sixth sentences.

Session Laws 2013-118, s. 3, effective July 1, 2013, in subsection (b8), inserted "a cable television company" following "defined in G.S. 62-3" and "electric, cable television" preceding "or communication lines."

Session Laws 2013-206, s. 2, effective October 1, 2013, added subsection (j2). For applicability, see editor's note.

Session Laws 2013-265, s. 18, effective July 17, 2013, added subsection headings in subsection (b1) through (b12); added subdivision (b4)(6); redesignated the former last sentence in subsection (b6) as present subsection (b7) and former subdivisions (b6)(1) through (b6)(3) as present subdivisions (b7)(1) through (b7)(3); and added subsection (b13).

Session Laws 2013-413, s. 19(a), effective July 1, 2015, in subsection (b2), added "Carbon Monoxide Detectors," "(i)," and added the language following "garage"; redesignated former subsection (b2) as present subsection (b2) and subdivision (b2)(1); added "For dwelling units" in subdivision (b2)(1); and added subdivision (b2)(2).

Session Laws 2013-413, s. 41, added subsection (b13) (now subsection (b14)). For effective date and applicability, see Editor's note.

Session Laws 2014-79, s. 5, effective July 22, 2014, repealed subsection (j2). See Editor's note for applicability.

Session Laws 2014-90, s. 1, effective July 30, 2014, added subsection (b15).

Session Laws 2014-120, s. 22(c), effective September 18, 2014, rewrote subsection (b2).

Session Laws 2015-145, ss. 4.1, 5.2, effective October 1, 2015, substituted "fifteen thousand dollars ($15,000)" for "five thousand dollars ($5,000)" in subsection (b5); and substituted "Subject to the procedures set forth in G.S. 143-136(c) and (d)" for "The" at the beginning of the first sentence of subsection (d); inserted "following the procedure set forth in G.S. 143-136(c)" following "the Council shall" in the second sentence of subsection (d); and deleted "and shall post on the Council's Web site" following "in the North Carolina Register" in the next-to-last sentence of subsection (d).

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

Session Laws 2015-263, s. 34, effective September 30, 2015, added the sub-subdivision (b4)(1)a. designation and added sub-subdivisions (b4)(1)b. and (b4)(1)c. and subdivision (b4)(1a); and deleted subdivisions (b4)(3) and (b4)(6).

Session Laws 2016-113, s. 13(a), effective October 1, 2016, rewrote subsection (b5); in subsection (b6), deleted "building" preceding "permit" and substituted "the Code" for "such Code"; rewrote subsection (b10); in subsection (b14), added the subsection heading and, in the first sentence, deleted "building" preceding "permit" and inserted "or any local variant approved under subsection (e) of this section"; and added subsection (b16).

Session Laws 2017-10, ss. 1.3(b), 1.4, effective May 4, 2017, added subsections (b17) and (b18).

Session Laws 2017-108, s. 8(b), effective October 8, 2017, inserted "or therapeutic equine facilities" in the introductory paragraph of subsection (b4), added the first sentence in subdivision (b4)(1), and added subdivision (b4)(2a).

Session Laws 2017-130, s. 8(a), effective October 8, 2017, added "or therapeutic equine facilities" following "greenhouses" in the introductory language of subsection (b4), and added subdivision (b4)(2a).

Session Laws 2017-186, s. 2(aaaaaa), effective December 1, 2017, substituted "Division of Adult Correction and Juvenile Justice" for "Division of Juvenile Justice" in the table in subsection (g).

Session Laws 2017-212, s. 8.11, effective October 8, 2017, deleted "sub-subdivision a. of subdivision (1) of this subsection" near the beginning of subdivision (b4)(2a).

Session Laws 2018-65, s. 2(a), effective October 1, 2018, added subsection (b19).

Session Laws 2019-174, s. 4, effective October 1, 2019, designated the former second paragraph of subsection (a) as subdivision (a1)(1) and added the subsection designation and heading; added subdivision (a1)(2); and added subsection (b20).

Legal Periodicals. - For survey of 1981 commercial law, see 60 N.C.L. Rev. 1238 (1982).

For 1997 legislative survey, see 20 Campbell L. Rev. 413.

§ 143-138.1. Introduction and instruction of the North Carolina Building Code; posting of written commentaries and interpretations on Department of Insurance Web site.

1. Prior to the effective date of Code changes pursuant to G.S. 143-138, the State Building Code Council and Department of Insurance shall provide for instructional classes for the various trades affected by the Code. The Department of Insurance shall develop the curriculum for each class but shall consult the affected licensing boards and trade organizations. The curriculum shall include explanations of the rationale and need for each Code amendment or revision. Classes may also be conducted by, on behalf of, or in cooperation with licensing boards, trade associations, and professional societies. The Department of Insurance may charge fees sufficient to recover the costs it incurs under this section. The Council shall ensure that courses are accessible to persons throughout the State.
2. The Department of Insurance shall post and maintain on that portion of its Web site devoted to the Building Code Council written commentaries and written interpretations made and given by staff to the Council and the Department for each section of the North Carolina Building Code within 10 business days of issuance.

History

(1997-26, s. 6; 2013-118, s. 3.5; 2015-145, s. 6.2.)

Editor's Note. - Session Laws 2013-118, s. 3.5, effective July 1, 2013, was codified as subsection (b) of this section, the previously existing provisions designated as subsection (a), and the section heading rewritten, at the direction of the Revisor of Statutes.

Session Laws 2013-118, s. 4 is a severability clause.

Effect of Amendments. - Session Laws 2015-145, s. 6.2, effective October 1, 2015, rewrote subsection (b).

Legal Periodicals. - For 1997 legislative survey, see 20 Campbell L. Rev. 413.

§ 143-139. Enforcement of Building Code.

1. Procedural Requirements. - Subject to the provisions set forth herein, the Building Code Council shall adopt such procedural requirements in the North Carolina State Building Code as shall appear reasonably necessary for adequate enforcement of the Code while safeguarding the rights of persons subject to the Code.
2. General Building Regulations. - The Insurance Commissioner shall have general authority, through the Division of Engineering of the Department of Insurance, to supervise, administer, and enforce all sections of the North Carolina State Building Code pertaining to plumbing, electrical systems, general building restrictions and regulations, heating and air conditioning, fire protection, and the construction of buildings generally, except those sections of the Code, the enforcement of which is specifically allocated to other agencies by subsections (c) through (e) below. In the exercise of the duty to supervise, administer, and enforce the North Carolina State Building Code (including local building codes which have superseded the State Building Code in a particular political subdivision pursuant to G.S. 143-138(e)), the Commissioner, through the Division of Engineering, shall:
   1. Cooperate with local officials and local inspectors duly appointed by the governing body of any municipality or board of county commissioners pursuant to Part 5 of Article 19 of Chapter 160A of the General Statutes or Part 4 of Article 18 of Chapter 153A of the General Statutes, or any other applicable statutory authority.
   2. In accordance with G.S. 143-139.4, timely assign a Code-enforcement official from the marketplace pool established under G.S. 143-151.12(9)a. to conduct any plumbing, electrical systems, general building restrictions and regulations, heating and air-conditioning, or general construction inspection required by the North Carolina State Building Code.
3. Remedies. - In case any building or structure is maintained, erected, constructed, or reconstructed or its purpose altered, so that it becomes in violation of this Article or of the North Carolina State Building Code, either the local enforcement officer or the State Commissioner of Insurance or other State official with responsibility under this section may, in addition to other remedies, institute any appropriate action or proceeding to: (i) prevent the unlawful maintenance, erection, construction, or reconstruction or alteration of purpose, or overcrowding, (ii) restrain, correct, or abate the violation, or (iii) prevent the occupancy or use of the building, structure, or land until the violation is corrected. In addition to the civil remedies set out in G.S. 160A-175 and G.S. 153A-123, a county, city, or other political subdivision authorized to enforce the North Carolina State Building Code within its jurisdiction may, for the purposes stated in (i) through (iii) of this subsection, levy a civil penalty for violation of the fire prevention code of the North Carolina State Building Code, which penalty may be recovered in a civil action in the nature of debt if the offender does not pay the penalty within a prescribed period of time after the offender has been cited for the violation. If the Commissioner or other State official institutes an action or proceeding under this section, a county, city, or other political subdivision may not institute a civil action under this section based upon the same violation. Appeals from the imposition of any remedy set forth herein, including the imposition of a civil penalty by a county, city, or other political subdivision, shall be as provided in G.S. 160A-434.
4. Boilers. - The Bureau of Boiler Inspection of the Department of Labor shall have general supervision of the administration and enforcement of those sections of the North Carolina State Building Code which pertain to boilers of the types enumerated in Article 7 of Chapter 95 of the General Statutes.
5. Elevators. - The Department of Labor shall have general supervision of the administration and enforcement of those sections of the North Carolina State Building Code which pertain to elevators, moving stairways, and amusement devices such as merry-go-rounds, roller coasters, Ferris wheels, etc.
6. State Buildings. - With respect to State buildings, the Department of Administration shall have general supervision, through the Office of State Construction, of the administration and enforcement of all sections of the North Carolina State Building Code pertaining to plumbing, electrical systems, general building restrictions and regulations, heating and air conditioning, fire protection, and the construction of buildings generally, except those sections of the Code the enforcement of which is specifically allocated to other agencies by subsections (c) and (d) of this section, and shall also exercise all remedies as provided in subsection (b1) of this section. The Department of Administration shall be the only agency with the authority to seek remedies pursuant to this section with respect to State buildings. Except as provided herein, nothing in this subsection shall be construed to abrogate the authority of the Commissioner of Insurance under G.S. 58-31-40 or any other provision of law. For the purposes of this subsection, "State buildings" does not include buildings, facilities, or projects located on State lands that are (i) privately owned or privately leased and (ii) located within the North Carolina Global TransPark.

History

(1957, c. 1138; 1963, c. 811; 1989, c. 681, s. 11; 1993, c. 329, s. 2; 2009-474, ss. 3, 4; 2018-29, s. 2(b); 2020-90, s. 2.3.)

Editor's Note. - Article 7 of Chapter 95, referred to in this section, was repealed by Session Laws 1981 (Regular Session, 1982), c. 1187, s. 1.

Session Laws 2018-29, s. 2(e), provides: "This section becomes effective August 1, 2018. The Commissioner of Insurance shall adopt temporary rules to implement this section. The Commissioner of Insurance shall adopt permanent rules to implement this section no later than August 1, 2019. Until the Commissioner of Insurance adopts permanent rules, the Commissioner may charge a fee not to exceed thirty dollars ($30.00) per hour for inspections requested by a permit holder under G.S. 143-139.4 as enacted by this section. No temporary or permanent rule adopted by the Commissioner pursuant to this section shall authorize the Commissioner to include the travel time of a Code-enforcement official going to and from an inspection conducted under G.S. 143-151.12(9)a. in the hourly rate calculation."

Session Laws 2020-90, s. 2.6, made the amendment of subsection (e) of this section by Session Laws 2020-90, s. 2.3, effective October 1, 2020, and applicable to projects initiated or contracts entered into, renewed, or modified on or after that date.

Effect of Amendments. - Session Laws 2009-474, ss. 3 and 4, effective October 1, 2009, in subsection (b), substituted "(c) through (e)" for "(c) and (d)"; and added subsection (e).

Session Laws 2018-29, s. 2(b), rewrote subsection (b). For effective date and applicability, see editor's note.

Session Laws 2020-90, s. 2.3, added the last sentence of subsection (e). For effective date and applicability, see editor's note.

§ 143-139.1. Certification of manufactured buildings, structures or components by recognized independent testing laboratory; minimum standards for modular homes.

1. Certification. - The State Building Code may provide, in circumstances deemed appropriate by the Building Code Council, for testing, evaluation, inspection, and certification of buildings, structures or components manufactured off the site on which they are to be erected, by a recognized independent testing laboratory having follow-up inspection services approved by the Building Code Council. Approval of such buildings, structures or components shall be evidenced by labels or seals acceptable to the Council. All building units, structures or components bearing such labels or seals shall be deemed to meet the requirements of the State Building Code and this Article without further inspection or payment of fees, except as may be required for the enforcement of the Code relative to the connection of units and components and enforcement of local ordinances governing zoning, utility connections, and foundations permits. The Building Code Council shall adopt and may amend from time to time such reasonable and appropriate rules and regulations as it deems necessary for approval of agencies offering such testing, evaluation, inspection, and certification services and for overseeing their operations. Such rules and regulations shall include provisions to insure that such agencies are independent and free of any potential conflicts of interest which might influence their judgment in exercising their functions under the Code. Such rules and regulations may include a schedule of reasonable fees to cover administrative expenses in approving and overseeing operations of such agencies and may require the posting of a bond or other security satisfactory to the Council guaranteeing faithful performance of duties under the Code.
2. Minimum Standards for Modular Homes. - To qualify for a label or seal under subsection (a) of this section, a single-family modular home must meet or exceed the following construction and design standards:
   1. Roof pitch. - For homes with a single predominant roofline, the pitch of the roof shall be no less than five feet rise for every 12 feet of run.
   2. Eave projection. - The eave projections of the roof shall be no less than 10 inches, which may not include a gutter around the perimeter of the home, unless the roof pitch is 8/12 or greater.
   3. Exterior wall. - The minimum height of the exterior wall shall be at least seven feet six inches for the first story.
   4. Siding and roofing materials. - The materials and texture for the exterior materials shall be compatible in composition, appearance, and durability to the exterior materials commonly used in standard residential construction.
   5. Foundations. - The home shall be designed to require foundation supports around the perimeter. The supports may be in the form of piers, pier and curtain wall, piling foundations, a perimeter wall, or other approved perimeter supports.

The Building Code Council may also adopt rules to insure that any person that is not licensed, in accordance with G.S. 87-1, and that undertakes to erect a North Carolina labeled manufactured modular building, meets the manufacturer's installation instructions and applicable provisions of the State Building Code. Any such person, before securing a permit to erect a modular building, shall provide the code enforcement official proof that he has in force for each modular building to be erected a $5,000 surety bond insuring compliance with the regulations of the State Building Code governing installation of modular buildings.

History

(1971, c. 1099; 1989, c. 653, s. 2; 2003-400, s. 17.)

Effect of Amendments. - Session Laws 2003-400, s. 17, effective January 1, 2004, rewrote the section heading; designated the formerly undesignated provisions as subsection (a); and added subsection (b).

§ 143-139.2. Enforcement of insulation requirements; certificate for occupancy; no electric service without compliance.

1. In addition to other enforcement provisions set forth in this Chapter, no single family or multi-unit residential building on which construction is begun in North Carolina on or after January 1, 1978, shall be occupied until it has been certified as being in compliance with the minimum insulation standards for residential construction, as prescribed in the North Carolina State Building Code or as approved by the Building Code Council as provided in G.S. 143-138(e).
2. No public supplier of electric service, including regulated public utilities, municipal electric service and electric membership corporations, shall connect for electric service to an occupant any residential building on which construction is begun on or after January 1, 1978, unless said building complies with the insulation requirements of the North Carolina State Building Code or of local building codes approved by the Building Codes Council as provided in G.S. 143-138(e), and has been certified for occupancy in compliance with the minimum insulation standards of the North Carolina State Building Code or of any local modification approved as provided in G.S. 143-138(e), by a person designated as an inspector pursuant to subsection (a) of this section.
3. This section shall apply only in any county or city that elects to enforce the insulation and energy utilization standards of the State Building Code pursuant to G.S. 143-151.27.

History

(1977, c. 792, s. 7; 1983, c. 377, s. 1.)

§ 143-139.3. Inspection of liquified petroleum gas piping systems for residential structures.

If the test required under the North Carolina State Building Code for a liquified petroleum gas piping system serving a one or two-family residential dwelling is not performed by a qualified code enforcement official, as defined in G.S. 143-151.8(a)(5), the contractor who installed the system shall verify that the system complies with the test requirements and shall certify the results, in writing, to the code official.

History

(1993, c. 356, s. 3.)

§ 143-139.4. Certain building inspections by State.

1. When a permit holder has been informed by a local inspection department that any inspection has not been, or will not be, conducted within two business days after first requested, the permit holder may request in writing that the Commissioner assign personnel to conduct the inspection.
2. Any written request by a permit holder to the Commissioner to assign personnel to conduct an inspection shall be submitted to the Commissioner, and such submission may be made electronically or by facsimile. The submission shall be on a form adopted by the Commissioner, which shall at a minimum contain all of the following:
   1. The permit holder's name and contact information and, if the requestor is someone other than the permit holder, the name and contact information of the requestor.
   2. A copy of the building permit for the property to be inspected.
   3. Documentation of the date and time of the initial request to the local inspection department. Documentation shall include the type of inspection requested, the address of the property to be inspected, and the individual or individuals to whom this information and inspection request was directed, and the name of the requestor.
   4. Documentation as to whether the local inspection department informed the requestor that the local inspection department would be unable to conduct the inspection within two business days, if applicable.
   5. Documentation as to whether the local inspection department has failed to conduct the requested inspection within two business days of the initial request to the local inspection department.
3. Local inspection departments shall maintain a record of each inspection request. The record shall include the date and time the request is received, the type of inspection requested, the address of the property to be inspected, the person to whom the request was directed, and the name of the requestor if the requestor is someone other than the permit holder. A local inspection department may, upon receipt of an inspection request, inform the requestor that it will be unable to conduct the inspection within the next two business days and such information shall be noted in the record.
4. Inspection requests received after 12:00 noon shall be deemed to have been received on the next business day.
5. Prior to making any assignment of Code-enforcement officials from the marketplace pool established under G.S. 143-151.12(9)a., the Commissioner shall verify all of the following to the Commissioner's satisfaction:
   1. That the permit holder desires the inspection to be completed.
   2. That the local inspection department received an inspection request for the property.
   3. That the inspection has not yet been conducted and the reasons for the failure to conduct the inspection.
   4. Any other information the Commissioner deems relevant to determining whether to assign personnel to conduct the requested inspection.
6. If the Commissioner assigns a Code-enforcement official from the marketplace pool established under G.S. 143-151.12(9)a. to conduct the requested inspection, the Commissioner shall notify the local inspection department and the local inspection department shall, prior to the inspection, provide the Commissioner with information regarding any outstanding building permits and previously conducted inspections on those outstanding building permits for that property. The local inspection department may also provide the Commissioner with information regarding other properties with outstanding building permits and inspections by the same permit holder or requestor.
7. Not later than one business day after the receipt of the report, the Commissioner shall provide an electronic copy of the report of any inspection conducted by a marketplace pool Code-enforcement official under G.S. 143-151.12(9)a. to all of the following:
   1. The local inspection department.
   2. The permit holder.
   3. The requestor, if not the permit holder.
8. For the requested services performed by a Code-enforcement official under this section, the Commissioner shall charge the permit holder a fee as set by the Commissioner under G.S. 58-2-40(1a). The fee shall be paid to the Commissioner no later than 30 days after completion of the requested inspection.
9. Any claim alleging negligence by a Code-enforcement official from the marketplace pool established under G.S. 143-151.12(9)a. arising out of and in the course of the duty to conduct an inspection under this section shall constitute a claim against this State and shall be brought under and adjudicated according to and in compliance with the terms of Article 31 of Chapter 143 of the General Statutes.
10. Notwithstanding its issuance of a certificate of occupancy, a city or county, its inspection department, and its inspectors shall be discharged and released from any liabilities, duties, and responsibilities imposed under the General Statutes or in common law from any claim arising out of or attributed to any inspection performed pursuant to this section by a marketplace pool Code-enforcement official under G.S. 143-151.12(9)a.
11. As used in this section, the following terms mean:
    1. Inspection. - An inspection required by the North Carolina State Building Code in any of the following categories:
       1. Plumbing.
       2. Electrical systems.
       3. General building restrictions and regulations.
       4. Heating and air-conditioning.
       5. General construction inspection.
    2. Local inspection department. - Any county, city, or joint agency performing State Building Code inspections under Article 18 of Chapter 153A of the General Statutes or Article 19 of Chapter 160A of the General Statutes.
    3. Requestor. - The permit holder, or an individual acting on behalf of the permit holder, who made an initial request for an inspection to a local inspection department.

History

(2018-29, s. 2(c).)

Editor's Note. - Session Laws 2018-29, s. 2(e), provides: "This section becomes effective August 1, 2018. The Commissioner of Insurance shall adopt temporary rules to implement this section. The Commissioner of Insurance shall adopt permanent rules to implement this section no later than August 1, 2019. Until the Commissioner of Insurance adopts permanent rules, the Commissioner may charge a fee not to exceed thirty dollars ($30.00) per hour for inspections requested by a permit holder under G.S. 143-139.4 as enacted by this section. No temporary or permanent rule adopted by the Commissioner pursuant to this section shall authorize the Commissioner to include the travel time of a Code-enforcement official going to and from an inspection conducted under G.S. 143-151.12(9)a. in the hourly rate calculation."

§ 143-140. Hearings before enforcement agencies as to questions under Building Code.

1. Any person desiring to raise any question under this Article or under the North Carolina State Building Code shall be entitled to a technical interpretation from the appropriate enforcement agency, as designated in the preceding section. Upon request in writing by any such person, the enforcement agency through an appropriate official shall within a reasonable time provide a written interpretation, setting forth the facts found, the decision reached, and the reasons therefor. In the event of dissatisfaction with such decision, the person affected shall have the options of:
   1. Appealing to the Building Code Council or
   2. Appealing directly to the Superior Court, as provided in G.S. 143-141.
2. If an interpretation under this section or under G.S. 143-141(b) changes after a building permit is issued, the permit applicant may choose which version of the interpretation will apply to the permit, unless such a choice would cause harm to life or property.

History

(1957, c. 1138; 1989, c. 681, s. 4; 2017-130, s. 6.)

Effect of Amendments. - Session Laws 2017-130, s. 6, effective October 1, 2017, designated the existing provisions as subsection (a) and added subsection (b).

§ 143-140.1. Appeals of alternative design construction and methods.

Alternative designs and construction shall follow the State Building Code. In the event of a dispute between a local authority having jurisdiction and the designer or owner-representative regarding alternative designs and construction, and notwithstanding any other section within this Article, appeals by the designer or owner-representative on matters pertaining to alternative design construction or methods shall be heard by the Department of Insurance Engineering Division. The Department of Insurance Engineering Division shall issue its decision regarding an appeal filed under this section within 10 business days. The Commissioner of Insurance shall adopt rules in furtherance of this section.

History

(2007-507, s. 18.)

Editor's Note. - Session Laws 2007-507, s. 19, made this section effective August 30, 2007, and applicable to matters pending before the Commissioner of Insurance or the Department of Insurance, on or after that date.

§ 143-141. Appeals to Building Code Council.

1. Method of Appeal. - Whenever any person desires to take an appeal to the Building Code Council from the decision of a State enforcement agency relating to any matter under this Article or under the North Carolina State Building Code, he shall within 30 days after such decision give written notice to the Building Code Council through the Division of Engineering of the Department of Insurance that he desires to take an appeal. A copy of such notice shall be filed at the same time with the enforcement agency from which the appeal is taken. The chairman of the Building Code Council shall fix a reasonable time and place for a hearing, giving reasonable notice to the appellant and to the enforcement agency. Such hearing shall be not later than the next regular meeting of the Council. The Building Code Council shall thereupon conduct a full and complete hearing as to the matters in controversy, after which it shall within a reasonable time give a written decision setting forth its findings of fact and its conclusions.
2. Interpretations of the Code. - The Building Code Council shall have the duty, in hearing appeals, to give interpretations of such provisions of the Building Code as shall be pertinent to the matter at issue. Where the Council finds that an enforcement agency was in error in its interpretation of the Code, it shall remand the case to the agency with instructions to take such action as it directs. Interpretations by the Council and local enforcement officials shall be based on a reasonable construction of the Code provisions.
3. Variations of the Code. - Where the Building Code Council finds on appeal that materials or methods of construction proposed to be used are as good as those required by the Code, it shall remand the case to the enforcement agency with instructions to permit the use of such materials or methods of construction. The Council shall thereupon immediately initiate procedures for amending the Code as necessary to permit the use of such materials or methods of construction.
4. Posting on Department Web Site. - The Department of Insurance shall post and maintain on that portion of its Web site devoted to the Building Code Council all appeal decisions, interpretations, and variations of the Code issued by the Council within 10 business days of issuance.
5. Further Appeals to the Courts. - Whenever any person desires to take an appeal from a decision of the Building Code Council or from the decision of an enforcement agency (with or without an appeal to the Building Code Council), he may take an appeal either to the Wake County Superior Court or to the superior court of the county in which the proposed building is to be situated, in accordance with the provisions of Chapter 150B of the General Statutes.

History

(1957, c. 1138; 1973, c. 1331, s. 3; 1987, c. 827, s. 1; 1997-26, s. 7; 2015-145, s. 6.1.)

Effect of Amendments. - Session Laws 2015-145, s. 6.1, effective October 1, 2015, added subsection (c1).

Legal Periodicals. - For 1997 legislative survey, see 20 Campbell L. Rev. 413.

§ 143-142. Further duties of the Building Code Council.

1. Recommended Statutory Changes. - It shall be the duty of the Building Code Council to make a thorough study of the building laws of the State, including both the statutes enacted by the General Assembly and the rules and regulations adopted by State and local agencies. On the basis of such study, the Council shall recommend to the 1959 and subsequent General Assemblies desirable statutory changes to simplify and improve such laws.
2. Recommend Changes in Enforcement Procedures. - It shall be the duty of the Building Code Council to make a thorough and continuing study of the manner in which the building laws of the State are enforced by State, local, and private agencies. On the basis of such studies, the Council may recommend to the General Assembly any statutory changes necessary to improve and simplify the enforcement machinery. The Council may also advise State agencies as to any changes in administrative practices which could be made to improve the enforcement of building laws without statutory changes.

History

(1957, c. 1138.)

§ 143-143. Effect on certain existing laws.

Nothing in this Article shall be construed as abrogating or otherwise affecting the power of any State department or agency to promulgate regulations, make inspections, or approve plans in accordance with any other applicable provisions of law not in conflict with the provisions herein.

History

(1957, c. 1138.)

§ 143-143.1: Repealed by Session Laws 1971, c. 882, s. 1.

§ 143-143.2. Electric wiring of houses, buildings, and structures.

The electric wiring of houses or buildings for lighting or for other purposes shall conform to the requirements of the State Building Code, which includes the National Electric Code and any amendments and supplements thereto as adopted and approved by the State Building Code Council, and any other applicable State and local laws. In order to protect the property of citizens from the dangers incident to defective electric wiring of buildings, it shall be unlawful for any firm or corporation to allow any electric current for use in any newly erected building to be turned on without first having had an inspection made of the wiring by the appropriate official electrical inspector or inspection department and having received from that inspector or department a certificate approving the wiring of such building. It shall be unlawful for any person, firm, or corporation engaged in the business of selling electricity to furnish initially any electric current for use in any building, unless said building shall have first been inspected by the appropriate official electrical inspector or inspection department and a certificate given as above provided. In the event that there is no legally appointed inspector or inspection department with jurisdiction over the property involved, the two preceding sentences shall have no force or effect. As used in this section, "building" includes any structure.

History

(1905, c. 506, s. 23; Rev., s. 3001; C.S., s. 2763; 1969, c. 1229, s. 7; 1989, c. 681, s. 20.)

§ 143-143.3. Temporary toilet facilities at construction sites.

1. Suitable toilet facilities shall be provided and maintained in a sanitary condition during construction. An adequate number of facilities must be provided for the number of employees at the construction site. There shall be at least one facility for every two contiguous construction sites. Such facilities may be portable, enclosed, chemically treated, tank-tight units. Portable toilets shall be enclosed, screened, and weatherproofed with internal latches. Temporary toilet facilities need not be provided on-site for crews on a job site for no more than one working day and having transportation readily available to nearby toilet facilities.
2. It shall be the duty of the Building Code Council to establish standards to carry out the provisions of subsection (a) of this section not inconsistent with the requirements for toilet facilities at construction sites established pursuant to federal occupational safety and health rules.

History

(1993, c. 528, s. 1.)

§ 143-143.4. Door lock exemption for certain businesses.

1. Notwithstanding this Article or any other law to the contrary, any business entity licensed to sell automatic weapons as a federal firearms dealer that is in the business of selling firearms or ammunition and that operates a firing range which rents firearms and sells ammunition shall be exempt from the door lock requirements of Chapter 10 of Volume 1 of the North Carolina State Building Code when issued a permit to that effect by the Department of Insurance in accordance with this section.
2. The Department of Insurance shall issue a permit to a business entity specified in subsection (a) of this section for an exemption from the door lock requirements of Chapter 10 of Volume 1 of the North Carolina State Building Code if all of the following conditions are met:
   1. The building or facility in which business is conducted has a sales floor and customer occupancy space that is contained on one floor and is no larger than 15,000 square feet of retail sales space. Retail sales space is that area where firearms or ammunition are displayed and merchandised for sale to the public.
   2. The building or facility in which business is conducted is equipped with an approved smoke, fire, and break-in alarm system installed and operated in accordance with rules adopted by the Department of Insurance. An approved smoke, fire, or break-in alarm system does not have to include an automatic door unlocking mechanism triggered when the smoke, fire, or break-in alarm system is triggered.
   3. The owner or operator of the business will provide to all applicable employees within 10 days of the issuance of the permit under this section or at the time the employee is hired, whichever time is later, a written facility locking plan applicable for the close of business each day.
   4. Each entrance to the building or facility in which business is conducted is posted with a sign conspicuously located that warns that the building is exempt from the door lock requirements of the State Building Code, and that after business hours the building or facility's doors will remain locked from the inside even in the case of fire.
   5. Payment of a permit fee of five hundred dollars ($500.00) to the Department of Insurance.
3. The Department of Insurance shall file a copy of the permit issued in accordance with subsection (b) of this section with all local law enforcement and fire protection agencies that provide protection for the business entity.
4. The Department of Insurance shall be responsible for any inspections necessary for the issuance of permits under this section and, in conjunction with local inspection departments, shall be responsible for periodic inspections to ensure compliance with the requirements of this section. The Department of Insurance may contract with local inspection departments to conduct inspections under this subsection.
5. The Department of Insurance shall revoke a permit issued under this section upon a finding that the requirements for the original issuance of the permit are not being complied with.
6. Appeals of decisions of the Department of Insurance regarding the issuance or revocation of permits under this section shall be in accordance with Chapter 150B of the General Statutes.
7. For the purposes of this section, "business entity" has the same meaning as in G.S. 59-102.
8. In addition to the provisions of G.S. 143-138(h), the owner or operator of any business entity who is issued a permit as a door lock exempt business in accordance with subsection (b) of this section who fails to comply with the permit requirements of subsection (b) of this section shall be subject to a civil penalty of five hundred dollars ($500.00) for the first offense, one thousand dollars ($1,000) for the second offense, and five thousand dollars ($5,000) for the third and subsequent offenses, except when the building or facility in which business is conducted is in compliance with the door lock requirements of Chapter 10 of Volume 1 of the North Carolina State Building Code. Penalties authorized in this subsection shall be imposed by the city or county in which the violation occurs. Each day the building or facility in which business is conducted is not in compliance with the provisions of this subsection constitutes a separate offense.
9. The Department of Insurance shall adopt rules to implement this section.

History

(2001-324, s. 1.)

§ 143-143.5. Access to toilets in shopping malls.

Notwithstanding any other law or rule, a horizontal travel distance of 300 feet for access to public use toilets in covered mall buildings shall be allowed.

History

(2004-199, s. 37(a); 2005-289, s. 2.)

§ 143-143.6: Expired pursuant to Session Laws 2007-82, s. 2, effective July 1, 2009.

Editor's Note. - Session Laws 2007-82, s. 2, provided that the provisions of this section would expire on July 1, 2009.

§ 143-143.7: Reserved for future codification purposes.

§ 143-143.8. Purpose.

The General Assembly finds that manufactured homes have become a primary housing resource for many of the citizens of North Carolina. The General Assembly finds further that it is the responsibility of the manufactured home industry to provide homes which are of reasonable quality and safety and to offer warranties to buyers that provide a means of remedying quality and safety defects in manufactured homes. The General Assembly also finds that it is in the public interest to provide a means for enforcing such warranties.

Consistent with these findings and with the legislative intent to promote the general welfare and safety of manufactured home residents in North Carolina, the General Assembly finds that the most efficient and economical way to assure safety, quality and responsibility is to require the licensing and bonding of all segments of the manufactured home industry. The General Assembly also finds that it is reasonable and proper for the manufactured home industry to cooperate with the Commissioner of Insurance, through the establishment of the North Carolina Manufactured Housing Board, to provide for a comprehensive framework for industry regulations.

History

(1981, c. 952, s. 2; 1999-393, s. 1; 2005-451, s. 1.)

Editor's Note. - Session Laws 1987, c. 429, s. 1, effective June 19, 1987, redesignated G.S. 143-143.8 through 143-143.24, which had been headed "Article 9A, Manufactured Housing and Mobile Homes, Part I, North Carolina Manufactured Housing Board," as "Article 9A, North Carolina Manufactured Housing Board - Manufactured Home Warranties."

Session Laws 1999-393, s. 5, provides that structures built before the effective date of the Act shall not be affected by any changes made in this Article.

Session Laws 2005-451, s. 1, provides: "G.S. 143-143.8 through G.S. 143-143.25 of Article 9A of Chapter 143 of the General Statutes are redesignated as Part 1 of Article 9A of Chapter 143 of the General Statutes to be entitled 'Part 1. Duties, Warranties, Purchase Transaction.'. The Revisor of Statutes is authorized to make changes in the newly designated Part 1 that will reflect the results of the recodification."

Legal Periodicals. - For survey of 1981 commercial law, see 60 N.C.L. Rev. 1238 (1982).

§ 143-143.9. Definitions.

The following definitions apply in this Part:

1. Bank. - A federally insured financial institution including institutions defined under G.S. 53C-1-4(4), savings and loan associations, credit unions, savings banks and other financial institutions chartered under this or any other state law or chartered under federal law.
2. Board. - The North Carolina Manufactured Housing Board.
3. Buyer. - A person for whom a dealer performs, or is engaged to perform, any services or provides any products including the purchase and setup of a manufactured home for use as a residence or other related use.
4. Code. - Engineering standards adopted by the Commissioner.
5. Commissioner. - The Commissioner of Insurance of the State of North Carolina.
6. Department. - The Department of Insurance of the State of North Carolina.
7. Deposit. - Any and all funds received by a dealer from a buyer or someone on behalf of a buyer for the performance of services or the provision of goods.
8. Escrow or trust account. - An account with a bank that is designated as an escrow account or as a trust account and that is maintained by a dealer for the deposit of buyers' funds.
9. Escrow or trust account funds. - Funds belonging to a person other than the dealer that are received by or placed under the control of the dealer in connection with the performance of services or the provision of products by a dealer for a buyer.
10. Funds. - Any form of money, including cash, payment instruments such as checks, money orders, or sales drafts, and receipts from electronic fund transfers. The term does not include letters of credit or promissory notes.
11. License. - A license issued under this Part.
12. Licensee. - A person who has been issued a license under this Part by the North Carolina Manufactured Housing Board.
13. Manufactured home. - A structure, transportable in one or more sections, which, in the traveling mode, is eight feet or more in width or is 40 feet or more in length, or when erected on site, is 320 or more square feet, and which is built on a permanent chassis and designed to be used as a dwelling with or without a permanent foundation when connected to the required utilities, and includes the plumbing, heating, air conditioning and electrical systems contained therein.
14. Manufactured home dealer or dealer. - Any person engaged in the business of buying or selling manufactured homes or offering or displaying manufactured homes for sale in North Carolina. Any person who buys or sells three or more manufactured homes in any 12-month period, or who offers or displays for sale three or more manufactured homes in any 12-month period shall be presumed to be a manufactured home dealer. The terms "selling" and "sale" include lease-purchase transactions. The term "manufactured home dealer" does not include banks and finance companies that acquire manufactured homes as an incident to their regular business.
15. Manufactured home manufacturer or manufacturer. - Any person, resident or nonresident, who manufactures or assembles manufactured homes for sale to dealers in North Carolina.
16. Manufactured home salesperson or salesperson. - Any person employed by a manufactured home dealer to sell manufactured homes to buyers. Manufactured home salesperson or salesperson also includes sales managers, lot managers, general managers, or others who manage or supervise salespersons.
17. Person. - Any individual, natural persons, firm, partnership, association, corporation, legal representative or other recognized legal entity.
18. Responsible party. - A manufacturer, dealer, supplier, or set-up contractor.
19. Setup. - The operations performed at the occupancy site which render a manufactured home fit for habitation.
20. Set-up contractor. - A person who engages in the business of performing setups for compensation in North Carolina.
21. Substantial defect. - Any substantial deficiency in or damage to materials or workmanship occurring in a manufactured home which has been reasonably maintained and cared for in normal use. The term also means any structural element, utility system or component part of the manufactured home which fails to comply with the Code.
22. Supplier. - The original producer of completed components, including refrigerators, stoves, hot water heaters, dishwashers, cabinets, air conditioners, heating units, and similar components, and materials such as floor coverings, paneling, siding, trusses, and similar materials, which are furnished to a manufacturer or dealer for installation in the manufactured home prior to sale to a buyer.

History

(1981, c. 952, s. 2; 1987, c. 429, ss. 4, 5, 19; 1999-393, s. 1; 2001-421, s. 2.1.; 2005-451, ss. 1, 2; 2012-56, s. 48.)

Effect of Amendments. - Session Laws 2005-451, s. 2, effective April 1, 2006, redesignated former subdivision (1) as present subdivision (1a) and former subdivisions (5a) and (5b) as present subdivisions (5e) and (5f); added present subdivisions (1) and (5a) through (5d); rewrote subdivision (2); substituted "traveling" for "travelling" in subdivision (6); and substituted "paneling" for "panelling" in subdivision (15).

Session Laws 2012-56, s. 48, effective October 1, 2012, substituted "G.S. 53C-1-4(4)" for "G.S. 53-1(1)" in subdivision (1).

§ 143-143.10. Manufactured Housing Board created; membership; terms; meetings.

1. There is created the North Carolina Manufactured Housing Board within the Department. The Board shall be composed of 11 members as follows:
   1. The Commissioner of Insurance or the Commissioner's designee.
   2. A manufactured home manufacturer.
   3. A manufactured home dealer.
   4. A representative of the banking and finance industry.
   5. A representative of the insurance industry.
   6. A manufactured home supplier.
   7. A set-up contractor.
   8. Two representatives of the general public.
   9. A person who is employed with a HUD-approved housing counseling agency in the State.
   10. An accountant.
2. In accordance with the provisions of this Part, the Board shall have the following powers and duties:
   1. To issue licenses to manufacturers, dealers, salespersons, and set-up contractors.
   2. To require that an adequate bond or other security be posted by all licensees, except manufactured housing salespersons.
   3. To receive and resolve complaints from buyers of manufactured homes and from persons in the manufactured housing industry, in connection with the warranty, warranty service, licensing requirements or any other provision under this Part.
   4. To adopt rules in accordance with Chapter 150B of the General Statutes as are necessary to carry out the provisions of this Part.
   5. To file against the bond posted by a licensee for warranty repairs and service on behalf of a buyer.
   6. To request that the Department of Public Safety conduct criminal history checks of applicants for licensure pursuant to G.S. 143B-944.
   7. To conduct random audits of dealer escrow or trust accounts.

The Commissioner or the Commissioner's designee shall chair the Board. The Governor shall appoint to the Board the manufactured home manufacturer and the manufactured home dealer. The General Assembly upon the recommendation of the Speaker of the House of Representatives in accordance with G.S. 120-121 shall appoint to the Board the representative of the banking and finance industry, the employee of a HUD-approved housing counseling agency, and the representative of the insurance industry. The General Assembly upon the recommendation of the President Pro Tempore of the Senate in accordance with G.S. 120-121 shall appoint to the Board the manufactured home supplier, the accountant, and the set-up contractor. The Commissioner shall appoint two representatives of the general public. Except for the representatives from the general public and the persons appointed by the General Assembly, each member of the Board shall be appointed by the appropriate appointing authority from a list of nominees submitted to the appropriate appointing authority by the Board of Directors of the North Carolina Manufactured and Modular Homebuilders Association. At least three nominations shall be submitted for each position on the Board. The members of the Board shall be residents of the State.

The members of the Board shall serve for terms of three years. In the event of any vacancy of a position appointed by the Governor or Commissioner, the appropriate appointing authority shall appoint a replacement in the same manner as provided for the original appointment to serve the remainder of the unexpired term. Vacancies in appointments made by the General Assembly shall be filled in accordance with G.S. 120-122. In the event of any vacancy, the appropriate appointing authority shall appoint a replacement to serve the remainder of the unexpired term. Such appointment shall be made in the same manner as provided for the original appointment. No member of the Board shall serve more than two consecutive, three-year terms.

The members of the Board designated in subdivisions (8), (9), and (10) of this subsection shall have no current or previous financial interest connected with the manufactured housing industry. No member of the Board shall participate in any proceeding before the Board involving that member's own business.

Each member of the Board, except the Commissioner and any other State employee, shall receive per diem and allowances as provided with respect to occupational licensing boards by G.S. 93B-5. Fees collected by the Board under this Article shall be credited to the Insurance Regulatory Fund created under G.S. 58-6-25.

History

(1981, c. 952, s. 2; 1983, c. 717, ss. 107-109, 114; 1987, c. 429, ss. 6, 7, 19, c. 827, s. 1; 1999-393, s. 1; 2002-144, s. 4; 2003-221, s. 1; 2003-400, s. 9; 2005-451, ss. 1, 3; 2011-330, s. 47(b); 2014-100, s. 17.1(jjj); 2018-120, s. 4.8.)

Editor's Note. - Session Laws 2002-144, s. 4, effective July 1, 2002 and expiring on June 30, 2004, amended G.S. 143-10 by rewriting the last paragraph in subsection (a). The apparent intent was to amend the last paragraph of G.S. 143-143.10(a). Session Laws 2003-221, s. 1, effective June 19, 2003, amended Session Laws 2002-144, s. 4, by substituting "G.S. 143-143.10(a)" for "G.S. 143-10(a)" in the introductory clause. Session Laws 2003-284, s. 22.2, effective July 1, 2004, amended Session Laws 2002-144 by changing the expiration date from June 30, 2003 to June 30, 2004.

Effect of Amendments. - Session Laws 2002-144, s. 4, as amended by Session Laws 2003-221, s. 1, and by Session Laws 2003-284, s. 22.2, effective July 1, 2002 and expiring on June 30, 2004, rewrote (a). See Editor's note.

Session Laws 2003-400, s. 9, effective January 1, 2004, added subdivision (b)(6).

Session Laws 2005-451, s. 3, effective April 1, 2006, substituted "11" for "nine" in the first paragraph of subsection (a); substituted "the Commissioner's" for "his" in subdivision (a)(1); substituted "industry" for "business" in subdivision (a)(4); added subdivisions (a)(9) and (a)(10); in the second paragraph of subsection (a), substituted "the Commissioner's" for "his" in the first sentence, substituted "appoint to the Board ... counseling agency" for "appoint the representative of the banking and finance industry" in the third sentence, and substituted "appoint to the Board the manufactured home supplier, the accountant, and the set-up" for "appoint the manufactured home supplier and set-up" in the fourth sentence; substituted "members of the Board designated in subdivisions (8), (9), and (10) of this subsection shall have no current or previous" for "member of the Board representing the general public shall have no" in the fourth paragraph of subsection (a); and added subdivision (b)(7).

Session Laws 2011-330, s. 47(b), effective June 27, 2011, rewrote the last paragraph.

Session Laws 2014-100, s. 17.1(jjj), effective July 1, 2014, in subdivision (b)(6), substituted "Department of Public Safety" for "Department of Justice" and "G.S. 143B-944" for "G.S. 114-19.13."

Session Laws 2018-120, s. 4.8, effective June 28, 2018, substituted "Manufactured and Modular Homebuilders Association" for "Manufactured Housing Institute" in the next to last sentence of the second paragraph of subsection (a).

§ 143-143.10A. Criminal history checks of applicants for licensure.

1. Definitions. - The following definitions shall apply in this section:
   1. Applicant. -  A person applying for initial licensure as a manufactured home salesperson or set-up contractor.
   2. Criminal history. - A history of conviction of a state or federal crime, whether a misdemeanor or felony, that bears on an applicant's fitness for licensure under this Part. The crimes include the criminal offenses set forth in any of the following Articles of Chapter 14 of the General Statutes: Article 5, Counterfeiting and Issuing Monetary Substitutes; Article 5A, Endangering Executive and Legislative Officers; Article 6, Homicide; Article 7B, Rape and Other Sex Offenses; Article 8, Assaults; Article 10, Kidnapping and Abduction; Article 13, Malicious Injury or Damage by Use of Explosive or Incendiary Device or Material; Article 14, Burglary and Other Housebreakings; Article 15, Arson and Other Burnings; Article 16, Larceny; Article 17, Robbery; Article 18, Embezzlement; Article 19, False Pretenses and Cheats; Article 19A, Obtaining Property or Services by False or Fraudulent Use of Credit Device or Other Means; Article 19B, Financial Transaction Card Crime Act; Article 20, Frauds; Article 21, Forgery; Article 26, Offenses Against Public Morality and Decency; Article 26A, Adult Establishments; Article 27, Prostitution; Article 28, Perjury; Article 29, Bribery; Article 31, Misconduct in Public Office; Article 35, Offenses Against the Public Peace; Article 36A, Riots, Civil Disorders, and Emergencies; Article 39, Protection of Minors; Article 40, Protection of the Family; Article 59, Public Intoxication; and Article 60, Computer-Related Crime. The crimes also include possession or sale of drugs in violation of the North Carolina Controlled Substances Act in Article 5 of Chapter 90 of the General Statutes and alcohol-related offenses including sale to underage persons in violation of G.S. 18B-302 or driving while impaired in violation of G.S. 20-138.1 through G.S. 20-138.5. In addition to the North Carolina crimes listed in this subdivision, such crimes also include similar crimes under federal law or under the laws of other states.
2. All applicants for initial licensure shall consent to a criminal history record check. Refusal to consent to a criminal history record check may constitute grounds for the Board to deny licensure to an applicant. The Board shall ensure that the State and national criminal history of an applicant is checked. Applicants shall obtain criminal record reports from one or more reporting services designated by the Board to provide criminal record reports. Each applicant is required to pay the designated service for the cost of the criminal record report. In the alternative, the Board may provide to the North Carolina Department of Public Safety the fingerprints of the applicant to be checked, a form signed by the applicant consenting to the criminal record check and the use of fingerprints and other identifying information required by the State or National Repositories of Criminal Histories, and any additional information required by the Department of Public Safety. The Board shall keep all information obtained pursuant to this section confidential.
3. If an applicant's criminal history record check reveals one or more convictions listed under subdivision (a)(2) of this section, the conviction shall not automatically bar licensure. The Board shall consider all of the following factors regarding the conviction:
   1. The level of seriousness of the crime.
   2. The date of the crime.
   3. The age of the person at the time of the conviction.
   4. The circumstances surrounding the commission of the crime, if known.
   5. The nexus between the criminal conduct of the person and the job duties of the position to be filled.
   6. The person's prison, jail, probation, parole, rehabilitation, and employment records since the date the crime was committed.
   7. The subsequent commission by the person of a crime listed in subdivision (a)(2) of this section.
4. Limited Immunity. - The Board, its officers, and employees, acting in good faith and in compliance with this section, shall be immune from civil liability for denying licensure to an applicant based on information provided in the applicant's criminal history record check.

If, after reviewing these factors, the Board determines that the applicant's criminal history disqualifies the applicant for licensure, the Board may deny licensure of the applicant. The Board may disclose to the applicant information contained in the criminal history record check that is relevant to the denial. The Board shall not provide a copy of the criminal history record check to the applicant. The applicant shall have the right to appear before the Board to appeal the Board's decision. However, an appearance before the full Board shall constitute an exhaustion of administrative remedies in accordance with Chapter 150B of the General Statutes.

History

(2003-400, s. 8; 2005-451, s. 1; 2007-416, s. 1; 2012-12, s. 2(vv); 2014-100, s. 17.1(o); 2015-181, s. 47; 2015-286, s. 2.2.)

Editor's Note. - Session Laws 2015-181, s. 47, provides: "The Revisor of Statutes may correct statutory references, as required by this act, throughout the General Statutes. In making the changes authorized by this act, the Revisor may also adjust the order of lists of multiple statutes to maintain statutory order, correct terms, make conforming changes to catch lines and references to catch lines, and adjust subject and verb agreement and the placement of conjunctions." Pursuant to this authority, the Revisor of Statutes substituted "Article 7B" for "Article 7A" in subdivision (a)(2).

Session Laws 2015-181, s. 48, provides: "This act becomes effective December 1, 2015, and applies to offenses committed on or after that date. Prosecutions for offenses committed before the effective date of this act 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 2007-416, s. 1, effective August 21, 2007, in the middle of subsection (b), added the second and third sentences, and substituted "In the alternative, the Board may provide" for "The Board shall be responsible for providing" at the beginning of the present fourth sentence.

Session Laws 2012-12, s. 2(vv), effective October 1, 2012, substituted "Riots, Civil Disorders, and Emergencies" for "Riots and Civil Disorders" in subdivision (a)(2).

Session Laws 2014-100, s. 17.1(o), effective July 1, 2014, substituted "Department of Public Safety" for "Department of Justice" twice in subsection (b).

Session Laws 2015-286, s. 2.2, effective October 22, 2015, inserted "initial" preceding "licensure" two times in subdivision (a)(1) and in the first sentence of subsection (b); and deleted "manufacturer, dealer" following "manufactured home" in subdivision (a)(1).

§ 143-143.11. License required; application for license.

1. It shall be unlawful for any manufactured home manufacturer, dealer, salesperson, or set-up contractor to engage in business as such in this State without first obtaining a license from the Board for each place of business operated by the licensee, as provided in this Part. The fact that a person is licensed by the Board as a set-up contractor or a dealer does not preempt any other licensing boards' applicable requirements for that person.
2. Application for the license shall be made to the Board at such time, in such form, and contain information the Board requires, and shall be accompanied by the fee established by the Board. The fee shall not exceed three hundred fifty dollars ($350.00) for each license issued. In addition to the license fee, the Board may also charge an applicant a fee to cover the cost of the criminal history record check required by G.S. 143-143.10A.
3. In the application, the Board shall require information relating to the matters set forth in G.S. 143-143.13 as grounds for refusal of a license, and information relating to other pertinent matters consistent with safeguarding the public interest. All of this information shall be considered by the Board in determining the fitness of the applicant. Once the Board has determined that an applicant is fit, the Board must provide the applicant a license for each place of business operated by the applicant.
4. All licenses shall expire, unless revoked or suspended, on June 30 of each year following the date of issue.
5. Every licensee shall, on or before the first day of July of each year, obtain a renewal of a license for the next year by applying to the Board, completing the necessary hours of continuing education required under G.S. 143-143.11B, and paying the required renewal fee for each place of business operated by the licensee. The renewal fee shall not exceed three hundred fifty dollars ($350.00) for each license issued. Upon failure to renew by the first day of July, a license automatically expires. The license may be renewed at any time within one year after its lapse upon payment of the renewal fee and a late filing fee. The late filing fee shall not exceed three hundred fifty dollars ($350.00).
6. Repealed by Session Laws 2005-297, s. 1, effective August 22, 2005.
7. Notwithstanding the provisions of subsection (a), the Board may provide by rule that a manufactured home salesperson will be allowed to engage in business during the time period after making application for a license but before such license is granted.
8. As a prerequisite to obtaining a license under this Part, a person may be required to pass an examination prescribed by the Board that is based on the Code, this Part, and any other subject matter considered relevant by the Board.

History

(1981, c. 952, s. 2; 1985, c. 487, s. 1; 1987, c. 429, s. 19; 1987 (Reg. Sess., 1988), c. 1039, ss. 2, 3; 1989, c. 485, s. 44; 1991, c. 644, s. 35; 1999-393, s. 1; 2003-400, s. 10; 2005-297, s. 1.; 2005-451, s. 1; 2009-451, s. 21.4.)

Effect of Amendments. - Session Laws 2003-400, s. 10, effective January 1, 2004, added the last sentence of subsection (b).

Session Laws 2005-297, s. 1, effective August 22, 2005, substituted "Board for each place of business operated by the licensee" for "Board" in subsection (a); substituted "for each license issued" for "for any license" in the second sentence in subsection (b); added the last sentence in subsection (c); rewrote subsection (e); and deleted former subsection (f), which read: "Supplemental licenses shall be issued for each place of business, operated or proposed to be operated by the licensee, that is not contiguous to other premises for which a license is issued. The fee for a supplemental license shall be established by the Board and shall not exceed three hundred dollars ($300.00), provided that no supplemental license shall be required for a place of business operated by a licensee that is used exclusively for storage."

Session Laws 2009-451, s. 21.4, effective July 1, 2009, substituted "three hundred fifty dollars ($350.00)" for "three hundred dollars ($300.00)" in the second sentence of subsection (b), and in the second and last sentences of subsection (e).

§ 143-143.11A. Notification of change of address, control of ownership, and bankruptcy.

1. Every applicant for a license shall inform the Board of the applicant's business address. Every licensee shall give written notification to the Board of any change in the licensee's business address, for whatever reason, within 10 business days after the licensee moves to a new address or a change in the address takes place. A violation of this subsection shall not constitute grounds for revocation, suspension, or non-renewal of a license or for the imposition of any other penalty by the Board.
2. Notwithstanding any other provision of law, whenever the Board is authorized or required to give notice to a licensee under this Part, the notice may be delivered personally to the licensee or sent by first-class mail to the licensee at the address provided to the Board under subsection (a) of this section. Notice shall be deemed given four days after mailing, and any Department employee may certify that notice has been given.
3. Every person licensed under this Part, except for a person licensed as a manufactured home salesperson, shall give written notification to the Board of any change in ownership or control of the licensee's business within 30 business days after the change. A "change in ownership or control" means the sale or conveyance of the capital stock of the business or of an owner's interest in the business, which operates to place a person or group of persons, not previously in control of the business, in effective control of the business. A violation of this subsection shall not constitute grounds for revocation, suspension, or nonrenewal of a license or for the imposition of any other penalty by the Board.
4. Upon the filing for protection under the United States Bankruptcy Code by any licensee, or by any business in which the licensee holds a position of employment, management or ownership, the licensee shall notify the Board of the filing of protection within three business days after the filing. Upon the appointment of a receiver by a court of this State for any licensee, or for any business in which the licensee holds a position of employment, management, or ownership the licensee shall notify the Board of the appointment within three business days after the appointment.

History

(1999-393, s. 1; 2000-122, s. 9; 2005-451, s. 1.)

§ 143-143.11B. Continuing education.

1. The Board may establish programs and requirements of continuing education for licensees, but shall not require licensees to complete more than eight credit hours of continuing education. Before the renewal of a license, a licensee shall present evidence to the Board that the licensee has completed the required number of continuing education hours in courses approved by the Board during the two months immediately preceding the expiration of the licensee's license. No member of the Board shall provide or sponsor a continuing education course under this section while that person is serving on the Board.
2. The Board may establish nonrefundable fees for the purpose of providing staff and resources to administer continuing education programs, and may establish nonrefundable course application fees, not to exceed one hundred fifty dollars ($150.00), for the Board's review and approval of proposed continuing education courses. The Board may charge the sponsor of an approved course a nonrefundable fee not to exceed seventy-five dollars ($75.00) for the annual renewal of course approval. The Board may also require a course sponsor to pay a fee, not to exceed five dollars ($5.00) per credit hour per licensee, for each licensee completing an approved continuing education course conducted by the sponsor. The Board may award continuing education credit for a course that has not been approved by the Board or for related educational activity and may prescribe the procedures for a licensee to submit information on the course or related educational activity for continuing education credit. The Board may charge the licensee a fee not to exceed fifty dollars ($50.00) for each course or activity submitted.
3. The Board may adopt any reasonable rules not inconsistent with this Part to give purpose and effect to the continuing education requirement, including rules that govern:
   1. The content and subject matter of continuing education courses.
   2. The criteria, standards, and procedures for the approval of courses, course sponsors, and course instructors.
   3. The methods of instruction.
   4. The computation of course credit.
   5. The ability to carry forward course credit from one year to another.
   6. The waiver of or variance from the continuing education requirement for hardship or other reasons.
   7. The procedures for compliance and sanctions for noncompliance.
4. The license of any person who fails to comply with the continuing education requirements under this section shall lapse. The Board may, for good cause shown, grant extensions of time to licensees to comply with these requirements. Any licensee who, after obtaining an extension, offers evidence satisfactory to the Board that he or she has satisfactorily completed the required continuing education courses shall be deemed in compliance with this section.
5. A manufactured home manufacturer or manufacturer is exempt from the requirements of this section.

History

(1999-393, s. 1; 2001-421, s. 2.2; 2005-451, s. 1.)

§ 143-143.12. Bond required.

1. A person licensed as a manufactured home salesperson shall not be required to furnish a bond, but each applicant approved by the Board for license as a manufacturer, dealer, or set-up contractor shall furnish a corporate surety bond, cash bond or fixed value equivalent in the following amounts:
   1. For a manufacturer, two thousand dollars ($2,000) per manufactured home manufactured in the prior license year, up to a maximum of one hundred thousand dollars ($100,000). When no manufactured homes were produced in the prior year, the amount required shall be based on the estimated number of manufactured homes to be produced during the current year.
   2. For a dealer who has one place of business, the amount shall be thirty-five thousand dollars ($35,000).
   3. For a dealer who has more than one place of business, the amount shall be twenty-five thousand dollars ($25,000) for each additional place of business.
   4. For a set-up contractor, the amount shall be ten thousand dollars ($10,000).
2. A corporate surety bond shall be approved by the Board as to form and shall be conditioned upon the obligor faithfully conforming to and abiding by the provisions of this Part. A cash bond or fixed value equivalent shall be approved by the Board as to form and terms of deposits in order to secure the ultimate beneficiaries of the bond. A corporate surety bond shall be for a one-year period, and a new bond or a proper continuation certificate shall be delivered to the Board at the beginning of each subsequent one-year period.
3. Any buyer of a manufactured home who suffers any loss or damage by any act of a licensee that constitutes a violation of this Part may institute an action to recover against the licensee and the surety.
4. The Board may adopt rules to assure satisfaction of claims.

History

(1981, c. 952, s. 2; 1985, c. 487, s. 2; 1987, c. 429, s. 19; c. 827, s. 223; 1999-393, s. 1; 2000-122, s. 8; 2005-451, s. 1.)

§ 143-143.13. Grounds for denying, suspending, or revoking licenses; civil penalties.

1. A license may be denied, suspended or revoked by the Board on any one or more of the following grounds:
   1. Making a material misstatement in application for license.
   2. Failing to post an adequate corporate surety bond, cash bond or fixed value equivalent.
   3. Engaging in the business of manufactured home manufacturer, dealer, salesperson, or set-up contractor without first obtaining a license from the Board.
   4. Failing to comply with the warranty service obligations and claims procedure established by this Part.
   5. Failing to comply with the set-up requirements established by this Part.
   6. Failing or refusing to account for or to pay over moneys or other valuables belonging to others that have come into licensee's possession arising out of the sale of manufactured homes.
   7. Failing to comply with the escrow or trust account provisions of Part 2 of this Article.
   8. Using unfair methods of competition or committing unfair or deceptive acts or practices.
   9. Failing to comply with any provision of this Part.
   10. Failing to appear for a hearing before the Board or for a prehearing conference with a person or persons designated by the Board after proper notice or failing to comply with orders of the Board issued pursuant to this Part.
   11. Employing unlicensed salespersons.
   12. Offering for sale manufactured homes manufactured or assembled by unlicensed manufacturers or selling manufactured homes to unlicensed dealers for sale to buyers in this State.
   13. Conviction of any crime listed in G.S. 143-143.10A.
   14. Having had a license revoked, suspended or denied by the Board; or having had a license revoked, suspended or denied by a similar entity in another state; or engaging in conduct in another state which conduct, if committed in this State, would have been a violation under this Part.
   15. Employing or contracting with any person to perform setups who is not licensed by the Board as a set-up contractor.
   16. Failure to comply with the provisions of Chapters 47G and 47H of the General Statutes.
2. Repealed by Session Laws 1985, c. 666, s. 38.
3. In addition to the authority to deny, suspend, or revoke a license under this Part the Board may impose a civil penalty upon any person violating the provisions of this Part. Upon a finding by the Board of a violation of this Part, the Board shall order the payment of a penalty of not less than one hundred dollars ($100.00) nor more than five hundred dollars ($500.00). In determining the amount of the penalty, the Board shall consider the degree and extent of harm caused by the violation, the amount of money that inured to the benefit of the violator as a result of the violation, whether the violation was committed willfully, and the prior record of the violator in complying or failing to comply with laws, rules, or orders applicable to the violator. Each day during which a violation occurs shall constitute a separate offense. The penalty shall be payable to the Board. The Board shall remit the clear proceeds of penalties provided for in this subsection to the Civil Penalty and Forfeiture Fund in accordance with G.S. 115C-457.2.

Payment of the civil penalty under this section shall be in addition to payment of any other penalty for a violation of the criminal laws of this State. Nothing in this subsection shall prevent the Board from negotiating a mutually acceptable agreement with any person as to the status of the person's license or certificate or as to any civil penalty.

History

(1981, c. 952, s. 2; 1985, c. 487, ss. 3 to 5; c. 666, s. 38; 1985 (Reg. Sess., 1986), c. 1027, s. 51; 1987, c. 429, s. 19; 1989, c. 485, s. 45; 1991, c. 644, s. 34; 1998-215, s. 92; 1999-393, s. 1; 2003-400, s. 11; 2005-451, ss. 1, 4; 2010-164, s. 5.)

Effect of Amendments. - Session Laws 2003-400, s. 11, effective January 1, 2004, rewrote subdivision (a)(12).

Session Laws 2005-451, s. 4, effective July 1, 2006, added subdivision (a)(6a).

Session Laws 2010-164, s. 5, effective October 1, 2010, and applicable to transactions entered on or after that date, added subdivision (a)(15).

§ 143-143.14. Hearings; rules.

1. License suspensions, revocations, and renewal refusals are subject to the provisions of Chapter 150B of the General Statutes.
2. If the Board finds that an applicant has not met the requirements for licensure, the Board shall refuse to issue the applicant a license and shall notify the applicant in writing of the denial and the grounds for the denial. The application may also be denied for any reason for which a license may be suspended or revoked or not renewed under G.S. 143-143.13. Within 30 days after receipt of a notification that an application for a license has been denied, the applicant may make a written request for a review by a member of the Department staff designated by the chair of the Board to determine the reasonableness of the Board's action. The review shall be completed without undue delay, and the applicant shall be notified promptly in writing as to the outcome of the review. Within 30 days after service of the notification as to the outcome, the applicant may make a written request for a hearing under Article 3A of Chapter 150B of the General Statutes if the applicant disagrees with the outcome.
3. The Board may adopt rules for hearings and prehearing conferences under this Part, and the rules may include provisions for prefiled evidence, the use of evidence, testimony of parties, prehearing statements, prehearing conference procedures, settlement conference procedures, discovery, subpoenas, sanctions, motions, intervention, consolidation of cases, continuances, and the rights and responsibilities of parties and witnesses.

History

(1981, c. 952, s. 2; 1987, c. 429, s. 19; 1993, c. 504, s. 34; 1993 (Reg. Sess., 1994), c. 678, s. 34; 1999-393, s. 1; 2005-451, s. 1.)

§ 143-143.15. Set-up requirements.

1. Manufactured homes shall be set up in accordance with the standards adopted by the Commissioner.
2. If a manufactured home is insured against damage caused by windstorm and subsequently sustains windstorm damage that indicates the manufactured home was not set up in the manner required by this section, the insurer issuing the insurance policy on the manufactured home shall not be relieved from meeting the obligations specified in the insurance policy with respect to such damage on the basis that the manufactured home was not properly set up.

History

(1981, c. 952, s. 2; 1987, c. 429, s. 8; 1999-393, s. 1; 2005-451, s. 1.)

§ 143-143.16. Warranties.

Each manufacturer, dealer and supplier of manufactured homes shall warrant each new manufactured home sold in this State in accordance with the warranty requirements prescribed by this section for a period of at least 12 months, measured from the date of delivery of the manufactured home to the buyer. The warranty requirements for each manufacturer, dealer, supplier and set-up contractor of manufactured homes are as follows:

1. The manufacturer warrants that all structural elements, plumbing systems, heating, cooling and fuel burning systems, electrical systems, and any other components included by the manufacturer are manufactured and installed free from substantial defects.
2. The dealer warrants:
   1. That any modifications or alterations made to the manufactured home by the dealer or authorized by the dealer are free from substantial defects. Alterations or modifications made by a dealer shall relieve the manufacturer of warranty responsibility as to the item altered or modified and any resulting damage.
   2. That a setup performed by the dealer on the manufactured home is performed in compliance with the Code.
   3. That the setup and transportation of the manufactured home by the dealer did not result in substantial defects.
3. The supplier warrants that any warranties generally offered in the ordinary sale of his product to consumers shall be extended to buyers of manufactured homes. The manufacturer's warranty shall remain in effect notwithstanding the existence of a supplier's warranty.
4. The set-up contractor warrants that the manufactured home is set up in compliance with the Code and that the setup did not result in any substantial defects.

History

(1981, c. 952, s. 2; 1987, c. 429, s. 9; 1999-393, s. 1; 2005-451, s. 1.)

§ 143-143.17. Presenting claims for warranties and substantial defects.

1. Whenever a claim for warranty service or about a substantial defect is made to a licensee, it shall be handled as provided in this Part. The licensee shall make a record of the name and address of each claimant and the date, substance, and disposition of each claim about a substantial defect. The licensee may request that a claim be in writing, but must nevertheless record it as provided above, and may not delay service pending receipt of the written claim.
2. When the licensee notified is not the responsible party, he shall in writing immediately notify the claimant and the responsible party of the claim. When a responsible party is asked to remedy defects, it may not fail to remedy those defects because another party may also be responsible. Nothing in this section prevents a party from obtaining compensation by way of contribution or subrogation from another responsible party in accordance with any other provision of law or contract.
3. Within the time limits provided in this Part, the licensee shall either resolve the claim or determine that it is not justified. At any time a licensee determines that a claim for warranty service is not justified in whole or in part he shall immediately notify the claimant in writing that the claim or part of the claim is rejected and why, and shall inform the claimant that he is entitled to complain to the Board, for which a complete mailing address shall be provided.

History

(1981, c. 952, s. 2; 1987, c. 429, s. 19; 1999-393, s. 1; 2005-451, s. 1.)

§ 143-143.18. Warranty service.

1. When a service agreement exists between or among a manufacturer, dealer and supplier to provide warranty service, the agreement shall specify which party is to remedy warranty defects. Every service agreement shall be in writing. Nothing contained in such an agreement shall relieve the responsible party, as provided by this Part, of responsibility to perform warranty service. However, any licensee undertaking by such agreement to perform the warranty service obligations of another shall thereby himself become responsible both to that other licensee and to the buyer for his failure adequately to perform as agreed.
2. When no service agreement exists for warranty service, the responsible party as designated by this Part is responsible for remedying the warranty defect.
3. A substantial defect shall be remedied within 45 days after the receipt of written notification from the claimant. If no written notification is given, the defect shall be remedied within 45 days after the mailing of notification by the Board, unless the claim is unreasonable or bona fide reasons exist for not remedying the defect within the 45-day period. The responsible party shall respond to the claimant in writing with a copy to the Board stating its reasons for not promptly remedying the defect and stating what further action is contemplated by the responsible party. Notwithstanding the foregoing provisions of this subsection, defects, which constitute an imminent safety hazard to life and health shall be remedied within five working days of receipt of the written notification of the warranty claim. An imminent safety hazard to life and health shall include but not be limited to (i) inadequate heating in freezing weather; (ii) failure of sanitary facilities; (iii) electrical shock, leaking gas; or (iv) major structural failure. The Board may suspend this five-day time period in the event of widespread defects or damage resulting from adverse weather conditions or other natural catastrophes.
4. When the person remedying the defect is not the responsible party as designated by the provisions of this Part, he shall be entitled to reasonable compensation paid to him by the responsible party. Conduct that coerces or requires a nonresponsible party to perform warranty service is a violation of this Part.
5. Warranty service shall be performed at the site at which the manufactured home is initially delivered to the buyer, except for components which can be removed for service without substantial expense or inconvenience to the buyer.
6. Any dealer, manufacturer or supplier may complain to the Board when warranty service obligations under this Part are not being enforced.

History

(1981, c. 952, s. 2; 1987, c. 429, ss. 17, 19; 1999-393, s. 1; 2005-451, s. 1.)

§ 143-143.19. Dealer alterations.

1. No alteration or modification shall be made to a manufactured home by a dealer after shipment from the manufacturer's plant, unless such alteration or modification is authorized by this Part or the manufacturer. The dealer shall ensure that all authorized alterations and modifications are performed, if so required, by qualified persons as defined in subsection (d). An unauthorized alteration or modification performed by a dealer or his agent or employee shall place primary warranty responsibility for the altered or modified item upon the dealer. If the manufacturer fulfills or is required to fulfill the warranty on the altered or modified item, he shall be entitled to recover damages in the amount of his cost and attorney's fee from the dealer.
2. An unauthorized alteration or modification of a manufactured home by the owner or his agent shall relieve the manufacturer of responsibility to remedy defects caused by such alteration or modification. A statement to this effect, together with a warning specifying those alterations or modifications which should be performed only by qualified personnel in order to preserve warranty protection, shall be displayed clearly and conspicuously on the face of the warranty. Failure to display such statement shall result in warranty responsibility on the manufacturer.
3. The Board is authorized to adopt rules in accordance with Chapter 150B of the General Statutes that define the alterations or modifications which must be made by qualified personnel. The Board may require qualified personnel only for those alterations and modifications which could substantially impair the structural integrity or safety of the manufactured home.
4. In order to be designated as a person qualified to alter or modify a manufactured home, a person must comply with State licensing or competency requirements in skills relevant to performing alterations or modifications on manufactured homes.

History

(1981, c. 952, s. 2; 1987, c. 429, s. 19; c. 827, s. 1; 1999-393, s. 1; 2005-451, s. 1.)

§ 143-143.20. Disclosure of manner used in determining length of manufactured homes.

In any advertisement or other communication regarding the length of a manufactured home, a manufacturer or dealer shall not include the coupling mechanism in describing the length of the home.

History

(1981, c. 952, s. 2; 2005-451, s. 1.)

§ 143-143.20A. Display of pricing on manufactured homes.

1. If the manufacturer of a manufactured home publishes a manufacturer's suggested retail price, that price shall be displayed near the front entrance of the manufactured home.
2. Each manufactured home dealer shall prominently display a sign and provide to each buyer a notice, developed by the North Carolina Manufactured Housing Board, containing information about the Board, including how to file a consumer complaint with the Board and the warranties and protections provided for each new manufactured home under federal and State law.

History

(2003-400, s. 6; 2005-451, s. 1.)

§ 143-143.21: Repealed by Session Laws 1993, c. 409, s. 6.

Cross References. - For present provision concerning damages for cancellation of retail purchase agreement for a manufactured home, see G.S. 143-143.21A.

§ 143-143.21A. Purchase agreements; buyer cancellations.

1. A purchase agreement for a manufactured home shall include all of the following:
   1. A description of the manufactured home and all accessories included in the purchase.
   2. The purchase price for the home and all accessories.
   3. The amount of deposit or other payment toward or payment of the purchase price of the manufactured home and accessories that is made by the buyer.
   4. The date the retail purchase agreement is signed.
   5. The estimated terms of financing the purchase, if any, including the estimated interest rate, number of years financed, and monthly payment.
   6. The buyer's signature.
   7. The dealer's signature.
2. The purchase agreement shall contain, in immediate proximity to the space reserved for the signature of the buyer and in at least ten point, all upper-case Gothic type, the following statement:
3. At the time the deposit or other payment toward or payment for the purchase price is received by the dealer, the dealer shall give the buyer a copy of the purchase agreement and a completed form in duplicate, captioned "Notice of Cancellation," which shall be attached to the purchase agreement, be easily detachable, and explain the buyer's right to cancel the purchase and how that right can be exercised.
4. The dealer shall return the deposit or other payment toward or payment for the purchase price to the buyer if the buyer cancels the purchase before midnight of the third business day after the date the buyer signed the purchase agreement or if any of the material terms of the purchase agreement are changed by the dealer. To make the cancellation effective, the buyer shall give the dealer written notice of the buyer's cancellation of the purchase. The dealer shall return the deposit or other payment toward or payment for the purchase price to the buyer within seven business days, or 15 business days when payment is by personal check, after receipt of the notice of cancellation or within three business days of any change by the dealer of the purchase agreement. For purposes of this section, "business day" means any day except Sunday and legal holidays. Each time the dealer gives the buyer a new set of financing terms, unless the financing terms are more favorable to the buyer, the buyer shall be given another three-day cancellation period. The dealer shall not commence setup procedures until after the final three-day cancellation period has expired.
5. If the buyer cancels the purchase after the three-day cancellation period, but before the sale is completed, and if:
   1. The manufactured home is in the dealer's inventory, the dealer may retain from the deposit or other payment received from the buyer actual damages up to a maximum of ten percent (10%) of the purchase price; or
   2. The manufactured home is specially ordered from the manufacturer for the buyer, the dealer may retain actual damages up to the full amount of the buyer's deposit or other payment received from the buyer.
6. Repealed by Session Laws 2005-451, s. 5, effective April 1, 2006.

"I UNDERSTAND THAT I HAVE THE RIGHT TO CANCEL THIS PURCHASE BEFORE MIDNIGHT OF THE THIRD BUSINESS DAY AFTER THE DATE THAT I HAVE SIGNED THIS AGREEMENT. I UNDERSTAND THAT THIS CANCELLATION MUST BE IN WRITING. IF I CANCEL THE PURCHASE AFTER THE THREE-DAY PERIOD, I UNDERSTAND THAT THE DEALER MAY NOT HAVE ANY OBLIGATION TO GIVE ME BACK ALL OF THE MONEY THAT I PAID THE DEALER. I UNDERSTAND ANY CHANGE TO THE TERMS OF THE PURCHASE AGREEMENT BY THE DEALER WILL CANCEL THIS AGREEMENT."

History

(1993, c. 409, s. 7; 1999-393, s. 1; 2003-400, s. 7; 2005-451, ss. 1, 5; 2006-259, s. 24.5.)

Effect of Amendments. - Session Laws 2005-451, s. 5, effective April 1, 2006, substituted "seven" for "15" in the third sentence in subsection (d); and repealed former subsection (f), which related to rules concerning terms of deposit.

Session Laws 2006-259, s. 24.5, effective August 23, 2006, inserted "15 business days when payment is by personal check" in the third sentence of subsection (d).

§ 143-143.21B. Dealer cancellation; deposit refund.

A dealer shall refund to a buyer the full amount of a deposit on the purchase of a manufactured home if the buyer has fulfilled his obligations under the purchase agreement and the dealer cancels the purchase at any time.

History

(1998-211, s. 37; 2005-451, s. 1.)

§ 143-143.22. Inspection of service records.

The Board may inspect the service records of a manufacturer, dealer, supplier or set-up contractor relating to a written warranty claim or complaint made to the Board against the manufacturer, dealer, supplier, or set-up contractor. Every licensee shall send to the Board upon request within 10 days a copy of every document or record pertinent to any complaint or claim for service.

History

(1981, c. 952, s. 2; 1999-393, s. 1; 2005-451, s. 1.)

§ 143-143.23. Other remedies not excluded.

Nothing in this Part, rules adopted by the Board, or any action of the Board shall limit any right or remedy available to the buyer or any power or duty of the Attorney General.

History

(1981, c. 952, s. 2; 1987, c. 429, s. 19; 1999-393, s. 1; 2005-451, s. 1.)

§ 143-143.24. Engaging in business without license a Class 1 misdemeanor.

If any person shall unlawfully act as a manufactured home manufacturer, dealer, salesperson, or set-up contractor without first obtaining a license from the Board, as provided in this Part, he shall be guilty of a Class 1 misdemeanor.

History

(1985, c. 487, s. 6; 1987, c. 429, s. 19; 1993, c. 539, s. 1010; 1994, Ex. Sess., c. 24, s. 14(c); 1999-393, s. 1; 2005-451, s. 1.)

§ 143-143.25. Staff support for Board.

The Manufactured Building Division of the Department shall provide clerical and other staff services required by the Board; and shall administer and enforce all provisions of this Part and all rules adopted under this Part, subject to the direction of the Board; except for powers and duties delegated by this Part to local units of government, other State agencies, or to any persons.

History

(1991, c. 644, s. 36; 1999-393, s. 1; 2005-451, s. 1.)

§§ 143-143.26 through 143-143.49: Reserved for future codification purposes.

History

(2005-451, s. 6.)

PART 2. BUYER DEPOSIT, ESCROW OR TRUST ACCOUNTS.

§ 143-143.50. Escrow or trust account required.

1. Dealers shall maintain buyers' deposits in an escrow or trust account with a bank. A dealer shall not commingle any other funds with buyers' deposits in the escrow or trust account.
2. Dealers shall notify the Board in writing when the escrow or trust account is established. The notification shall include the name and number of the account and the name and location of the bank holding the account.
3. All buyer funds shall be placed in the escrow or trust account no later than the close of the third banking business day after receipt.
4. Dealers shall provide buyers with a receipt for all buyer deposits received by the dealer. The receipt shall include the amount of the buyer deposit, the date the deposit was provided to the dealer, and the name and address of the bank where the buyer's funds will be deposited.

History

(2005-451, s. 6.)

Editor's Note. - Session Laws 2005-451, s. 7, made this Part effective July 1, 2006.

§ 143-143.51. Use of escrow or trust funds; penalty for violations.

1. Buyer funds in the dealer's escrow or trust account shall be held for the benefit of the buyer and may only be used for purposes authorized under the contractual obligations of the dealer to the buyer. No buyer funds in the dealer's escrow or trust account may be used by the dealer until after all the terms set forth in G.S. 143-143.21A are finalized and after the three-day right of cancellation period as set forth in G.S. 143-143.21A has expired. The dealer may use buyer funds to complete the steps necessary for site preparation of property, when approved in writing in advance by the buyer. Buyer funds in the dealer's escrow or trust account shall be promptly returned to the buyers when the buyer is entitled to return of the funds in accordance with G.S. 143-143.21A.
2. Notwithstanding any other provision of law and in addition to any other sanction the Board may impose under this Article, if the Board finds that a dealer has used a buyer's funds for a purpose that is not authorized under subsection (a) of this section or if the Board finds that a dealer has failed to place deposits in the dealer's escrow or trust account, the Board may fine the dealer or order restitution to the buyer in an amount up to the amount that the dealer misappropriated or failed to place in the account.

History

(2005-451, s. 6.)

§ 143-143.52. Minimum requirements for dealer records for escrow or trust accounts at banks.

The records required for escrow or trust accounts maintained at a bank shall consist of the following and be maintained for a period of five years from the date of purchase:

1. All bank receipts or deposit slips listing the source and date of receipt of all funds deposited in the account and the name of the buyer to whom the funds belong.
2. All cancelled checks or other instruments drawn on the account, or printed digital images thereof furnished by the bank, showing the amount, date, and recipient of the disbursement.
3. All instructions or authorizations to transfer, disburse, or withdraw funds from the escrow or trust account.
4. All bank statements and other documents received from the bank with respect to the escrow or trust account, including notices of return or dishonor of any instrument drawn on the account against insufficient funds.
5. A ledger containing a record of receipts and disbursements for each buyer from whom and for whom funds are received and showing the current balance of funds held in the escrow or trust account for each buyer.

History

(2005-451, s. 6.)

§ 143-143.53. Accountings for escrow or trust funds.

Upon the request of the buyer, the dealer shall provide to the buyer a written accounting of the receipts and disbursements of all escrow or trust funds upon the complete disbursement of the escrow or trust accounts.

History

(2005-451, s. 6.)

§ 143-143.54. Audits and record inspection.

All financial records required by this Part shall be subject to audit for cause and to random audit at the discretion of and by the Board, the Commissioner, or the Attorney General. The Board may inspect these records periodically, without prior notice and may also inspect these records whenever the Board determines that the records are pertinent to an investigation of any complaint against a licensee. The dealer shall provide written authorization to the bank that holds the escrow or trust account to release any and all requested information relative to the account to the parties authorized under this section to inspect those records.

History

(2005-451, s. 6.)

§ 143-144. Short title.

This Article shall be known and may be cited as "The Uniform Standards for Manufactured Homes Act."

History

(1969, c. 961, s. 1; 1985, c. 487, s. 7; 1987, c. 429, s. 19; 1999-393, s. 2.)

Editor's Note. - Session Laws 1987, c. 429, s. 2, effective June 19, 1987, redesignated G.S. 143-144 through 143-151.7, which had been known as Part 2 of Article 9A, as Article 9B.

Former G.S. 143-144 to 143-151 were repealed by Session Laws 1959, c. 683, s. 6.

Session Laws 1999-393, s. 5, provides that structures built before the effective date of the Act shall not be affected by any changes made in this Article.

Legal Periodicals. - For article on antitrust and unfair trade practice law in North Carolina, comparing federal law, see 50 N.C.L. Rev. 199 (1972).

For comment on the status of mobile homes as residences or vehicles and their regulation in North Carolina municipalities, see 50 N.C.L. Rev. 612 (1972).

§ 143-145. Definitions.

The following definitions apply in this Article:

1. Act. - The National Manufactured Housing Construction and Safety Standards Act of 1974, 42 U.S.C. § 5401, et seq., federal regulations adopted under the Act, and any laws enacted by the United States Congress that supersede or supplement the Act.
2. Commissioner. - The Commissioner of Insurance of the State of North Carolina or an authorized designee of the Commissioner.
3. Repealed by Session Laws 1999-393, s. 2, effective August 4, 1999.
4. HUD. - The United States Department of Housing and Urban Development or any successor agency.
5. Inspection department. - A North Carolina city or county building inspection department authorized by Chapter 160A or Chapter 153A of the General Statutes.
6. Label. - The form of certification required by HUD to be permanently affixed to each transportable section of each manufactured home manufactured for sale to a purchaser in the United States to indicate that the manufactured home conforms to all applicable federal construction and safety standards.
7. Manufactured home. - A structure, transportable in one or more sections, which in the traveling mode is eight body feet or more in width, or 40 body feet or more in length, or, when erected on site, is 320 or more square feet; and which is built on a permanent chassis and designed to be used as a dwelling, with or without permanent foundation when connected to the required utilities, including the plumbing, heating, air conditioning and electrical systems contained therein. "Manufactured home" includes any structure that meets all of the requirements of this subsection except the size requirements and with respect to which the manufacturer voluntarily files a certification required by the Secretary of HUD and complies with the standards established under the Act.
8. Repealed by Session Laws 1999-393, s. 2, effective August 4, 1999.

For manufactured homes built before June 15, 1976, "manufactured home" means a portable manufactured housing unit designed for transportation on its own chassis and placement on a temporary or semipermanent foundation having a measurement of over 32 feet in length and over eight feet in width. "Manufactured home" also means a double-wide manufactured home, which is two or more portable manufactured housing units designed for transportation on their own chassis that connect on site for placement on a temporary or semipermanent foundation having a measurement of over 32 feet in length and over eight feet in width.

History

(1969, c. 961, s. 2; 1971, c. 1172, s. 1; 1985, c. 487, s. 7; 1987, c. 429, ss. 10, 19; 1999-393, s. 2.)

§ 143-146. Statement of policy; rule-making power.

1. Manufactured homes, because of the manner of their construction, assembly and use and that of their systems, components and appliances (including heating, plumbing and electrical systems) like other finished products having concealed vital parts may present hazards to the health, life and safety of persons and to the safety of property unless properly manufactured. In the sale of manufactured homes, there is also the possibility of defects not readily ascertainable when inspected by purchasers. It is the policy and purpose of this State to provide protection to the public against those possible hazards, and for that purpose to forbid the manufacture and sale of new manufactured homes, which are not so constructed as to provide reasonable safety and protection to their owners and users. This Article provides to the Commissioner all necessary authority to enable the State to obtain approval as a State Administrative Agency under the provisions of the Act.
2. to (d) Repealed by Session Laws 1999-393, s. 2, effective August 4, 1999.
3. The Commissioner may adopt rules to carry out the provisions of the Act and this Article, including rules for consumer complaint procedures and rules for the enforcement of the standards and regulations established and adopted by HUD under the Act.

History

(1969, c. 961, s. 3; 1971, c. 1172, s. 2; 1979, c. 558, ss. 5, 6; 1985, c. 487, s. 7; 1987, c. 429, ss. 11, 12, 18, 19; 1999-393, s. 2.)

§ 143-147. Structures built under previous standards.

The legal status of any structure built before the effective date of the Act shall not be affected by any changes made in this Article by the General Assembly.

History

(1969, c. 961, s. 4; 1971, c. 1172, s. 3; 1985, c. 487, s. 7; 1987, c. 429, s. 19; 1999-393, s. 2.)

§ 143-148. Certain structures excluded from coverage.

The Commissioner may by rule provide for the exclusion of certain structures by certification in accordance with the Act.

History

(1969, c. 961, s. 5; 1971, c. 1172, s. 4; 1979, c. 558, s. 3; 1987, c. 429, s. 13; 1999-393, s. 2.)

Local Modification. - Town of Chapel Hill: 1993, c. 358, s. 1.

Editor's Note. - Session Laws 2002-123, s. 5, provides: "The Department of Revenue may contract for supplies, materials, equipment, and contractual services related to the provision of notice, the creation of tax forms and instructions, and the development of computer software necessitated by the amendments in this act without begin subject to the requirements of Article 3 or Article 8 of Chapter 143 of the General Statutes."

§ 143-149. Necessity for obtaining label for purposes of sale.

No person shall sell or offer for sale any manufactured home in this State that does not have a label. It is a defense to any prosecution for a violation of this section if a person shows that a certificate of title for the manufactured home as required by G.S. 20-52 was obtained before June 15, 1976, or produces other satisfactory evidence on file with the North Carolina Division of Motor Vehicles that the manufactured home was manufactured before June 15, 1976.

History

(1971, c. 1172, s. 5; 1985, c. 487, s. 7; 1999-393, s. 2.)

§ 143-150. No electricity to be furnished units not in compliance.

It is unlawful for any person to furnish electricity for use in any manufactured home without first ascertaining that the manufactured home and its electrical supply has been inspected pursuant to G.S. 143-139 by the inspection authority having jurisdiction and found to comply with the requirements of the State Electrical Code. The certificate of compliance issued by the inspection jurisdiction shall be accepted as evidence of compliance.

History

(1971, c. 1172, s. 6; 1985, c. 487, s. 7; 1993, c. 504, s. 35; 1999-393, s. 2.)

§ 143-151. Penalties.

1. Any person who is found by the Commissioner to have violated the provisions of the Act, this Article, or any rules adopted under this Article, shall be liable for a civil penalty not to exceed one thousand dollars ($1,000) for each violation. Each violation shall constitute a separate violation for each manufactured home or for each failure or refusal to allow or perform an act required by the Act, this Article, or any rules adopted under this Article. The maximum civil penalty may not exceed one million dollars ($1,000,000) for any related series of violations occurring within one year after the date of the first violation. In determining the amount of the penalty, the Commissioner shall consider the degree and extent of harm caused by the violation, the amount of money that inured to the benefit of the violator as a result of the violation, whether the violation was willful, and the prior record of the violator in complying or failing to comply with laws, rules, or orders applicable to the violator. The clear proceeds of civil penalties provided for in this section shall be remitted to the Civil Penalty and Forfeiture Fund in accordance with G.S. 115C-457.2.
2. Any individual, or a director, officer or agent of a corporation who knowingly and willfully violates the Act, this Article, or any rules adopted under this Article in a manner that threatens the health or safety of any purchaser is guilty of a Class I felony.

History

(1971, c. 1172, s. 7; 1979, c. 558, s. 1; 1985, c. 487, s. 7; 1987, c. 429, s. 19; 1993, c. 539, s. 1011; 1994, Ex. Sess., c. 24, s. 14(c); 1998-215, s. 93; 1999-393, s. 2.)

Legal Periodicals. - For note, "The Forty-Two Hundred Dollar Question: 'May State Agencies Have Discretion in Setting Civil Penalties Under the North Carolina Constitution?'," see 68 N.C.L. Rev. 1035 (1990).

§ 143-151.1. Enforcement.

The Commissioner may initiate any appropriate action or proceeding to prevent, restrain, or correct any violation of the Act, this Article, or any rules adopted under this Article. The Commissioner, or any of his deputies or employees, upon showing proper credentials and in the discharge of their duties under this Article, or the Act, is authorized at reasonable hours and without advance notice to enter and inspect all factories, warehouses, or establishments in this State in which manufactured homes are manufactured, stored or held for sale.

History

(1971, c. 1172, s. 8; 1979, c. 558, s. 2; 1985, c. 487, s. 7; 1987, c. 429, ss. 15, 18, 19; 1999-393, s. 2.)

Legal Periodicals. - For article on antitrust and unfair trade practice law in North Carolina, comparing federal law, see 50 N.C.L. Rev. 199 (1972).

§ 143-151.2. Fees.

1. The Commissioner shall establish a monitoring inspection fee in an amount required by the Secretary of HUD. This monitoring inspection fee shall be an amount paid by each manufactured home manufacturer in this State for each manufactured home produced by the manufacturer in this State.
2. The monitoring inspection fee shall be paid by the manufacturer to the Secretary of HUD or the Secretary's agent.

History

(1979, c. 558, s. 4; 1985, c. 487, s. 7; 1987, c. 429, s. 18; 1999-393, s. 2.)

Editor's Note. - Session Laws 1977, c. 792, s. 9, which was enacted as G.S. 143A-180.4 by the 1977 act, was erroneously codified as G.S. 143-151.2 in the 1977 Cumulative Supplement. It has been recodified as G.S. 143-151.42.

§ 143-151.3. Reports.

Each manufacturer, distributor, and dealer of manufactured homes shall establish and maintain such records, make such reports, and provide such information as the Commissioner or the Secretary of HUD may reasonably require to be able to determine whether the manufacturer, distributor, or dealer has acted or is acting in compliance with this Article, or the Act and shall, upon request of a person designated by the Commissioner or the Secretary of HUD, permit the person to inspect appropriate books, papers, records and documents relevant to determining whether the manufacturer, distributor, or dealer has acted or is acting in compliance with this Article or the Act, and any rules adopted by the Commissioner under this Article.

History

(1979, c. 558, s. 4; 1985, c. 487, s. 7; 1987, c. 429, ss. 18, 19; 1999-393, s. 2.)

§ 143-151.4. Notification of defects and correction procedures.

Every manufacturer of manufactured homes shall provide for notification and correction procedures in any manufactured home produced by the manufacturer in accordance with the Act, this Article, and any rules adopted by the Commissioner.

History

(1979, c. 558, s. 4; 1985, c. 487, s. 7; 1987, c. 429, s. 14; 1999-393, s. 2.)

§ 143-151.5. Prohibited acts.

1. No person shall:
   1. Manufacture for sale, lease, sell, offer for sale or lease, or introduce or deliver, or import into the United States, any manufactured home that is manufactured on or after the effective date of any applicable manufactured home construction and safety standard under the Act or this Article and that does not comply with the standard, except as provided in subsections (b), (c), and (d) of this section.
   2. Fail or refuse to permit access to or copying of records, or fail to make reports or provide information, or fail or refuse to permit entry or inspection, as required under the Act or this Article.
   3. Fail to furnish notification of any defect as required by the Act or this Article.
   4. Fail to issue a label or issue a label if the person in the exercise of due care has reason to know that the label is false or misleading in a material respect.
   5. Fail to comply with a rule adopted or an order issued by the Commissioner under this Article.
   6. Issue a certification pursuant to G.S. 143-148 if the person in the exercise of due care has reason to know that the certification is false or misleading in a material respect.
2. 1. Subdivision (a)(1) of this section does not apply to the sale, the offer for sale, or the introduction or delivery of any manufactured home after the first purchase of it in good faith for purposes other than resale. (b) (1)  Subdivision (a)(1) of this section does not apply to the sale, the offer for sale, or the introduction or delivery of any manufactured home after the first purchase of it in good faith for purposes other than resale.
   2. Subdivision (a)(1) of this section does not apply to any person who establishes that he did not have reason to know in the exercise of due care that the manufactured home was not in conformity with applicable manufactured home construction and safety standards.
3. Subdivision (a)(1) of this section shall not apply to any person who, before the first purchase, holds a certificate of compliance issued by the manufacturer or importer of the manufactured home to the effect that the manufactured home conforms to all applicable manufactured home construction and safety standards, unless the person knows that the manufactured home does not so conform.

History

(1979, c. 558, s. 4; 1985, c. 487, s. 7; 1987, c. 429, ss. 16, 19; 1999-393, s. 2.)

§§ 143-151.6, 143-151.7: Reserved for future codification purposes.

§ 143-151.8. Definitions.

1. As used in this Article, unless the context otherwise requires:
   1. "Board" means the North Carolina Code Officials Qualification Board.
   2. "Code" means the North Carolina State Building Code and related local building rules approved by the Building Code Council enacted, adopted or approved under G.S. 143-138, any resolution adopted by a federally recognized Indian Tribe under G.S. 153A-350.1 in which the Tribe adopts the North Carolina State Building Code and related local building rules, and the standards adopted by the Commissioner of Insurance under G.S. 143-143.15(a).
   3. "Code enforcement" means the examination and approval of plans and specifications, or the inspection of the manner of construction, workmanship, and materials for construction of buildings and structures and components thereof, or the enforcement of fire code regulations as an employee of the State or local government or as an employee of a federally recognized Indian Tribe employed to perform inspections on tribal lands under G.S. 153A-350.1, as an individual contracting with the State or a local government or a federally recognized Indian Tribe who performs inspections on tribal lands under G.S. 153A-350.1 to conduct inspections, or as an individual who is employed by a company contracting with a county or a city to conduct inspections, except an employee of the State Department of Labor engaged in the administration and enforcement of those sections of the Code which pertain to boilers and elevators, to assure compliance with the State Building Code and related local building rules.
   4. "Local inspection department" means the agency or agencies of local government, or any government agency of a federally recognized Indian Tribe under G.S. 153A-350.1, with authority to make inspections of buildings and to enforce the Code and other laws, ordinances, and rules enacted by the State and the local government or a federally recognized Indian Tribe under G.S. 153A-350.1, which establish standards and requirements applicable to the construction, alteration, repair, or demolition of buildings, and conditions that may create hazards of fire, explosion, or related hazards.
   5. "Qualified Code-enforcement official" means a person qualified under this Article to engage in the practice of Code enforcement.
2. For purposes of this Article, the population of a city or county shall be determined according to the most current federal census, unless otherwise specified.
3. For purposes of this Article, "willful misconduct, gross negligence, or gross incompetence" in addition to the meaning of those terms under other provisions of the General Statutes or at common law, shall include any of the following:
   1. The enforcement of a Code requirement applicable to a certain area or set of circumstances in other areas or circumstances not specified in the requirement.
   2. For an alternative design or construction method that has been appealed under G.S. 143-140.1 and found by the Department of Insurance to comply with the Code, to refuse to accept the decision by the Department to allow that alternative design or construction method under the conditions or circumstances set forth in the Department's decision for that appeal.
   3. For an alternative construction method currently included in the Building Code, to refuse to allow the alternative method under the conditions or circumstances set forth in the Code for that alternative method.
   4. The enforcement of a requirement that is more stringent than or otherwise exceeds the Code requirement.
   5. To refuse to implement or adhere to an interpretation of the Building Code issued by the Building Code Council or the Department of Insurance.
   6. The habitual failure to provide requested inspections in a timely manner.
   7. Enforcement of a Code official's preference in the method or manner of installation of heating ventilation and air-conditioning units, appliances, or equipment that is not required by the State Building Code and is in contradiction of a manufacturer's installation instructions or specifications.

History

(1977, c. 531, s. 1; 1987, c. 827, ss. 224, 225; 1989, c. 681, s. 15; 1993, c. 232, s. 4.1; 1999-78, s. 2; 1999-372, s. 5; 2001-421, s. 2.4; 2015-145, s. 3(a); 2018-29, s. 9.)

Local Modification. - Town of Wrightsville Beach: 1989, c. 611, s. 1, as amended by 2005-265, s. 1.

Editor's Note. - Session Laws 1987, c. 429, s. 3, effective June 19, 1987, redesignated this Article, which had been numbered Article 9B, as Article 9C.

Session Laws 1989, c. 681, which amended this section, provided in s. 21: "Section 10 and Sections 14 through 17 shall become effective upon the adoption of fire protection code provisions by the North Carolina Building Code Council." Fire protection code provisions were adopted July 1, 1991.

Session Laws 2015-145, s. 3(b), provides: "The North Carolina Code Officials Qualification Board shall, no later than October 1, 2015, notify all Code enforcement officials in the State of the clarification to the grounds for disciplinary action enacted by this act."

Effect of Amendments. - Session Laws 2015-145, s. 3(a), effective October 1, 2015, added subsection (c).

Session Laws 2018-29, s. 9, effective October 1, 2018, added subdivision (c)(7).

§ 143-151.9. North Carolina Code Officials Qualification Board established; members; terms; vacancies.

1. There is hereby established the North Carolina Code Officials Qualification Board in the Department of Insurance. The Board shall be composed of 20 members appointed as follows:
   1. One member who is a city or county manager;
   2. Two members, one of whom is an elected official representing a city over 5,000 population and one of whom is an elected official representing a city under 5,000 population;
   3. Two members, one of whom is an elected official representing a county over 40,000 population and one of whom is an elected official representing a county under 40,000 population;
   4. Two members serving as building officials with the responsibility for administering building, plumbing, electrical and heating codes, one of whom serves a county and one of whom serves a city;
   5. One member who is a registered architect;
   6. One member who is a registered engineer;
   7. Two members who are licensed general contractors, at least one of whom specializes in residential construction;
   8. One member who is a licensed electrical contractor;
   9. One member who is a licensed plumbing or heating contractor;
   10. One member selected from the faculty of the North Carolina State University School of Engineering and one member selected from the faculty of the School of Engineering of the North Carolina Agricultural and Technical State University;
   11. One member selected from the faculty of the School of Government at the University of North Carolina at Chapel Hill;
   12. One member selected from the Community Colleges System Office;
   13. One member selected from the Division of Engineering and Building Codes in the Department of Insurance; and,
   14. One member who is a local government fire prevention inspector and one member who is a citizen of the State.
2. The members shall be appointed for staggered terms and the initial appointments shall be made prior to September 1, 1977, and the appointees shall hold office until July 1 of the year in which their respective terms expire and until their successors are appointed and qualified as provided hereafter:
3. Vacancies in the Board occurring for any reason shall be filled for the unexpired term by the person making the appointment.

The various categories shall be appointed as follows: (1), (2), (3), and (14) by the Governor; (4), (5), and (6) by the General Assembly upon the recommendation of the President Pro Tempore in accordance with G.S. 120-121; (7), (8), and (9) by the General Assembly upon the recommendation of the Speaker of the House of Representatives in accordance with G.S. 120-121; (10) by the deans of the respective schools of engineering of the named universities; (11) by the Dean of the School of Government at the University of North Carolina at Chapel Hill; (12) by the President of the Community Colleges System; and (13) by the Commissioner of Insurance.

For the terms of one year: the members from subdivisions (1), (6) and (10) of subsection (a), and one member from subdivision (3).

For the terms of two years: the member from subdivision (11) of subsection (a), one member from subdivision (2), one member from subdivision (4), one member from subdivision (7), and one member from subdivision (14).

For the terms of three years: the members from subdivisions (8) and (12) of subsection (a), one member from subdivision (2), one member from subdivision (4), and one member from subdivision (14).

For the terms of four years: the members from subdivision (5), (9) and (13) of subsection (a), one member from subdivision (3), and one member from subdivision (7).

Thereafter, as the term of each member expires, his successor shall be appointed for a term of four years. Notwithstanding the appointments for a term of years, each member shall serve at the will of the Governor.

Members of the Board who are public officers shall serve ex officio and shall perform their duties on the Board in addition to the duties of their office.

History

(1977, c. 531, s. 1; 1987, c. 564, s. 28; 1989, c. 681, s. 16; 1995, c. 490, s. 12(a); 1999-84, s. 22; 2006-264, s. 29(m).)

Editor's Note. - Session Laws 1989, c. 681, which amended this section, provided in s. 21: "Section 10 and Sections 14 through 17 shall become effective upon the adoption of fire protection code provisions by the North Carolina Building Code Council." Fire protection code provisions were adopted July 1, 1991.

Effect of Amendments. - Session Laws 2006-264, s. 29(m), effective August 27, 2006, in subsection (a), substituted "School of Government at the University of North Carolina at Chapel Hill" for "Institute of Government" in subdivision (a)(11) and substituted "Dean of the School of Government at the University of North Carolina at Chapel Hill" for "Director of the Institute of Government" and substituted "Colleges" for "College" in the last paragraph.

§ 143-151.10. Compensation.

Members of the Board who are State officers or employees shall receive no salary for serving on the Board, but shall be reimbursed for their expenses in accordance with G.S. 138-6. Members of the Board who are full-time salaried public officers or employees other than State officers or employees shall receive no salary for serving on the Board, but shall be reimbursed for subsistence and travel expenses in accordance with G.S. 138-5(a)(2) and (3). All other members of the Board shall receive compensation and reimbursement for expenses in accordance with G.S. 138-5(a).

History

(1977, c. 531, s. 1.)

§ 143-151.11. Chairman; vice-chairman; other officers; meetings; reports.

1. The members of the Board shall select one of their members as chairman upon its creation, and shall select the chairman each July 1 thereafter.
2. The Board shall select a vice-chairman and such other officers and committee chairmen from among its members, as it deems desirable, at the first regular meeting of the Board after its creation and at the first regular meeting after July 1 of each year thereafter. Provided, nothing in this subsection shall prevent the creation or abolition of committees or offices of the Board, other than the office of vice-chairman, as the need may arise at any time during the year.
3. The Board shall hold at least four regular meetings per year upon the call of the chairman. Special meetings shall be held upon the call of the chairman or the vice-chairman, or upon the written request of four members of the Board.
4. The activities and recommendations of the Board with respect to standards for Code officials training and certification shall be set forth in regular and special reports made by the Board. Additionally, the Board shall present special reports and recommendations to the Governor or the General Assembly, or both, as the need may arise or as the Governor or the General Assembly may request.

History

(1977, c. 531, s. 1.)

§ 143-151.12. Powers.

In addition to powers conferred upon the Board elsewhere in this Article, the Board shall have the power to:

1. Adopt rules necessary to administer this Article;
2. Require State agencies, local inspection departments, and local governing bodies to submit reports and information about the employment, education, and training of Code-enforcement officials;
3. Establish minimum standards for employment as a Code-enforcement official: (i) in probationary or temporary status, and (ii) in permanent positions;
4. Certify persons as being qualified under the provisions of this Article to be Code-enforcement officials, including persons employed by a federally recognized Indian Tribe to perform inspections on tribal lands under G.S. 153A-350.1;
5. Consult and cooperate with counties, municipalities, agencies of this State, other governmental agencies, and with universities, colleges, junior colleges, community colleges and other institutions concerning the development of Code-enforcement training schools and programs or courses of instruction;
6. Establish minimum standards and levels of education or equivalent experience for all Code-enforcement instructors, teachers or professors;
7. Conduct and encourage research by public and private agencies which shall be designed to improve education and training in the administration of Code enforcement;
8. Adopt and amend bylaws, consistent with law, for its internal management and control; appoint such advisory committees as it may deem necessary; and enter into contracts and do such other things as may be necessary and incidental to the exercise of its authority pursuant to this Article; and,
9. Make recommendations concerning any matters within its purview pursuant to this Article; [and]
10. Establish within the Department of Insurance a marketplace pool of qualified Code-enforcement officials available for the following purposes:
    1. When requested by the Insurance Commissioner, to assist in the discharge of the Commissioner's duty under G.S. 143-139 to supervise, administer, and enforce the North Carolina State Building Code.
    2. When requested by local inspection departments, to assist in Code enforcement.

History

(1977, c. 531, s. 1; 1987, c. 564, s. 15; c. 827, s. 226; 1999-78, s. 3; 2018-29, s. 2(a).)

Editor's Note. - Session Laws 2018-29, s. 2(e), provides: "This section becomes effective August 1, 2018. The Commissioner of Insurance shall adopt temporary rules to implement this section. The Commissioner of Insurance shall adopt permanent rules to implement this section no later than August 1, 2019. Until the Commissioner of Insurance adopts permanent rules, the Commissioner may charge a fee not to exceed thirty dollars ($30.00) per hour for inspections requested by a permit holder under G.S. 143-139.4 as enacted by this section. No temporary or permanent rule adopted by the Commissioner pursuant to this section shall authorize the Commissioner to include the travel time of a Code-enforcement official going to and from an inspection conducted under G.S. 143-151.12(9)a. in the hourly rate calculation."

Effect of Amendments. - Session Laws 2018-29, s. 2(a), added subdivision (9). For effective date and applicability, see editor's note.

§ 143-151.13. Required standards and certificates for Code-enforcement officials.

1. No person shall engage in Code enforcement under this Article unless that person possesses one of the following types of certificates, currently valid, issued by the Board attesting to that person's qualifications to engage in Code enforcement: (i) a standard certificate; (ii) a limited certificate provided for in subsection (c) of this section; or (iii) a probationary certificate provided for in subsection (d) of this section. To obtain a standard certificate, a person must pass an examination, as prescribed by the Board or by a contracting party under G.S. 143-151.16(d), that is based on the North Carolina State Building Code and administrative procedures required for Code enforcement. The Board may issue a standard certificate of qualification to each person who successfully completes the examination. The certificate authorizes that person to engage in Code enforcement and to practice as a qualified Code-enforcement official in North Carolina. The certificate of qualification shall bear the signatures of the chairman and secretary of the Board.
2. The Board shall issue one or more standard certificates to each Code-enforcement official demonstrating the qualifications set forth in subsection (b1) of this section. Standard certificates are available for each of the following types of qualified Code-enforcement officials:
   1. Building inspector.
   2. Electrical inspector.
   3. Mechanical inspector.
   4. Plumbing inspector.
   5. Fire inspector.
   6. Residential changeout inspector.
3. The holder of a standard certificate may practice Code enforcement only within the inspection area and level described upon the certificate issued by the Board. A Code-enforcement official may qualify and hold one or more certificates. These certificates may be for different levels in different types of positions as defined in this section and in rules adopted by the Board.
4. A Code-enforcement official holding a certificate indicating a specified level of proficiency in a particular type of position may hold a position calling for that type of qualification anywhere in the State. With respect to all types of Code-enforcement officials, those with Level I, Level II, or Level III certificates shall be qualified to inspect and approve only those types and sizes of buildings as specified in rules adopted by the Board.
5. A Code-enforcement official holding office as of the date specified in this subsection for the county or municipality by which he is employed, shall not be required to possess a standard certificate as a condition of tenure or continued employment but shall be required to complete such in-service training as may be prescribed by the Board. At the earliest practicable date, such official shall receive from the Board a limited certificate qualifying him to engage in Code enforcement at the level, in the particular type of position, and within the governmental jurisdiction in which he is employed. The limited certificate shall be valid only as an authorization for the official to continue in the position he held on the applicable date and shall become invalid if he does not complete in-service training within two years following the applicable date in the schedule below, according to the governmental jurisdiction's population as published in the 1970 U.S. Census:
6. The Board may provide for the issuance of probationary or temporary certificates valid for such period (not less than one year nor more than three years) as specified by the Board's rules, or until June 30, 1983, whichever is later, to any Code-enforcement official newly employed or newly promoted who lacks the qualifications prescribed by the Board as prerequisite to applying for a standard certificate under subsection (a). No official may have a probationary or temporary certificate extended beyond the specified period by renewal or otherwise. The Board may provide for appropriate levels of probationary or temporary certificates and may issue these certificates with such special conditions or requirements relating to the place of employment of the person holding the certificate, his supervision on a consulting or advisory basis, or other matters as the Board may deem necessary to protect the public safety and health.
7. The Board shall, without requiring an examination, issue a standard certificate to any person who is currently certified as a county electrical inspector pursuant to G.S. 153A-351. The certificate issued by the Board shall authorize the person to serve at the electrical inspector level approved by the Commissioner of Insurance in G.S. 153A-351.
8. The Board shall issue a standard certificate to any person who is currently licensed to practice as a(n):
   1. Architect, registered pursuant to Chapter 83A;
   2. General contractor, licensed pursuant to Article 1 of Chapter 87;
   3. Plumbing or heating contractor, licensed pursuant to Article 2 of Chapter 87;
   4. Electrical contractor, licensed pursuant to Article 4 of Chapter 87; or,
   5. Professional engineer, registered pursuant to Chapter 89C;

Counties and Municipalities over 75,000 population - July 1, 1979

Counties and Municipalities between 50,001 and 75,000 - July 1, 1981

Counties and Municipalities between 25,001 and 50,000 - July 1, 1983

Counties and Municipalities 25,000 and under - July 1, 1985

All fire prevention inspectors holding office - July 1, 1989. Fire prevention inspectors have until July 1, 1993, to complete in-service training.

An official holding a limited certificate can be promoted to a position requiring a higher level certificate only upon issuance by the Board of a standard certificate or probationary certificate appropriate for such new position.

provided the person successfully completes a short course, as prescribed by the Board, relating to the State Building Code regulations and Code-enforcement administration. The standard certificate shall authorize the person to practice as a qualified Code-enforcement official in a particular type of position at the level determined by the Board, based on the type of license or registration held in any profession specified above.

History

(1977, c. 531, s. 1; 1979, cc. 521, 829; 1983, c. 90; 1987, c. 827, ss. 225, 227; 1989, c. 681, s. 17; 1989 (Reg. Sess., 1990), c. 1021, s. 5; 1991, c. 133, s. 1; 2007-120, s. 1; 2008-124, s. 8.1; 2019-174, s. 2.)

Editor's Note. - Session Laws 1989, c. 681, which amended this section, provided in s. 21: "Section 10 and Sections 14 through 17 shall become effective upon the adoption of fire protection code provisions by the North Carolina Building Code Council." Fire protection code provisions were adopted July 1, 1991.

Session Laws 2009-474, s. 6, provides: "The North Carolina Code Officials Qualification Board shall issue a Level III standard certificate for the exercise of duties pursuant to G.S. 143-341(3) to any person who (i) was employed by the Department of Administration on the day this act became effective; (ii) successfully completes a course, developed pursuant to this section, relating to the State Building Code regulations and Code-enforcement administration; (iii) successfully completes all examinations required by the North Carolina Code Officials Qualification Board; and (iv) possesses a valid license to practice as an architect, registered pursuant to Chapter 83A of the General Statutes, or a professional engineer, registered pursuant to Chapter 89C of the General Statutes. The North Carolina Code Officials Qualification Board, in consultation with the Departments of Administration and Insurance, shall develop an expedited course of training on State Building Code regulations and Code-enforcement administration to facilitate persons obtaining Level III standard certification in accordance with this section."

Effect of Amendments. - Session Laws 2007-120, s. 1, effective December 1, 2007, and applicable to offenses committed on or after December 1, 2007, rewrote subsection (b); added subsections (b1) and (b2); in subsection (c), substituted "level, in the particular type of position," for "performance level" in the middle of the second sentence; in subsection (d), substituted "a probationary" for "his probationary" in the second sentence; and in subsection (f), substituted "in a particular type of position at the level" for "at the performance level" in the last sentence of the second paragraph.

Session Laws 2008-124, s. 8.1, effective July 28, 2008, rewrote subsection (a).

Session Laws 2019-174, s. 2, effective October 1, 2019, added subdivision (b)(6).

§ 143-151.13A. Professional development program for officials.

1. As used in this section, "official" means a qualified Code-enforcement official as that term is defined in G.S. 143-151.8.
2. The Board may establish professional development requirements for officials as a condition of the renewal or reactivation of their certificates. The purposes of these professional development requirements are to assist officials in maintaining professional competence in their enforcement of the Code and to assure the health, safety, and welfare of the citizens of North Carolina. An official subject to this section shall present evidence to the Board at each certificate renewal after initial certification, that during the 12 months before the certificate expiration date, the official has completed the required number of credit hours in courses approved by the Board. Annual continuing education hour requirements shall be determined by the Board but shall not be more than six credit hours.
3. The Board may require an individual who earns a certificate under programs established in G.S. 143-151.13 to complete professional development courses, not to exceed six hours in each technical area of certification, within one year after that individual is first employed by a city or county inspection department.
4. As a condition of reactivating a standard or limited certificate, the Board may require the completion of professional development courses within one year after reemployment as an official as follows:
   1. An individual who has been on inactive status for more than two years and who has not been continuously employed by a city or county inspection department during the period of inactive status shall complete professional development courses not to exceed six hours for each technical area in which the individual is certified.
   2. An individual who has been on inactive status for more than two years and who has been continuously employed by a city or county inspection department during the period of inactive status shall complete professional development courses not to exceed three hours for each technical area in which the individual is certified.
   3. An individual who has been on inactive status for two years or less shall complete professional development courses not to exceed two hours for each technical area in which the individual is certified.
5. The Board may, for good cause shown, grant extensions of time to officials to comply with these requirements. An official who, after obtaining an extension under this subsection, offers evidence satisfactory to the Board that the official has satisfactorily completed the required professional development courses, is in compliance with this section.
6. The Board may adopt rules to implement this section, including rules that govern:
   1. The content and subject matter of professional development courses.
   2. The criteria, standards, and procedures for the approval of courses, course sponsors, and course instructors.
   3. The methods of instruction.
   4. The computation of course credit.
   5. The ability to carry-forward course credit from one year to another.
   6. The waiver of or variance from the professional development required for hardship or other reasons.
   7. The procedures for compliance and sanctions for noncompliance.

History

(2005-102, s. 1; 2018-29, s. 8.)

Effect of Amendments. - Session Laws 2018-29, s. 8, effective October 1, 2018, in subdivision (d)(1), substituted "six hours" for "12 hours"; in subdivision (d)(2), substituted "three hours" for "six hours"; and, in subdivision (d)(3), substituted "two hours" for "four hours."

§ 143-151.14. Comity.

1. The Board may, without requiring an examination, grant a standard certificate as a qualified Code-enforcement official for a particular type of position and level to any person who, at the time of application, is certified as a qualified Code-enforcement official in good standing by a similar board of another state, district or territory where standards are acceptable to the Board and not lower than those required by this Article for a similar type of position and level in this State.
2. The Board may, without requiring an examination, grant a standard certificate as a qualified Code-enforcement official for a particular type of position and level to any person who, at the time of application, is certified as a qualified Code-enforcement official in good standing by the International Code Council where standards and examination are acceptable to the Board and not lower than those required by this Article for a type of position and level in this State.
3. The certificates granted under subsections (a) and (b) of this section shall expire after three years unless within that time period the holder completes a short course, as prescribed by the Board, relating to the State Building Code regulations and Code-enforcement administration.
4. A fee of not more than twenty dollars ($20.00), as determined by the Board, must be paid by any applicant to the Board for the issuance of a certificate under this section. The provisions of G.S. 143-151.16(b) relating to renewal fees and late renewals shall apply to every person granted a standard certificate in accordance with this section.

History

(1977, c. 531, s. 1; 2007-120, s. 2; 2018-29, s. 7.)

Effect of Amendments. - Session Laws 2007-120, s. 2, effective December 1, 2007, and applicable to offenses committed on or after December 1, 2007, inserted "for a particular type of position and level" in the first sentence.

Session Laws 2018-29, s. 7, effective October 1, 2018, designated the existing provisions as subsections (a) and (d); added subsections (b) and (c); in subsection (a), inserted "in good standing" and added "for a similar type of position and level in this State"; and, in subsection (d), in the first sentence, substituted "any applicant" for "the applicant" and deleted "the provisions of" preceding "this section."

§ 143-151.15. Return of certificate to Board; reissuance by Board.

A certificate issued by the Board under this Article is valid as long as the person certified is employed by the State of North Carolina or any political subdivision thereof as a Code-enforcement official, or is employed by a federally recognized Indian Tribe to perform inspections on tribal lands under G.S. 153A-350.1 as a Code-enforcement official. When the person certified leaves that employment for any reason, he shall return the certificate to the Board. If the person subsequently obtains employment as a Code-enforcement official in any governmental jurisdiction described above, the Board may reissue the certificate to him. The provisions of G.S. 143-151.16(b) relating to renewal fees and late renewals shall apply, if appropriate. The provisions of G.S. 143-151.16(c) shall not apply. This section does not affect the Board's powers under G.S. 143-151.17.

History

(1977, c. 531, s. 1; 1993 (Reg. Sess., 1994), c. 678, s. 35; 1999-78, s. 4.)

§ 143-151.16. Certification fees; renewal of certificates; examination fees.

1. The Board shall establish a schedule of fees to be paid by each applicant for certification as a qualified Code-enforcement official. Such fee shall not exceed twenty dollars ($20.00) for each applicant.
2. A certificate, other than a probationary certificate, as a qualified Code-enforcement official issued pursuant to the provisions of this Article must be renewed annually on or before the first day of July. Each application for renewal must be accompanied by a renewal fee to be determined by the Board, but not to exceed ten dollars ($10.00). The Board is authorized to charge an extra four dollar ($4.00) late renewal fee for renewals made after the first day of July each year.
3. Any person who fails to renew his certificate for a period of two consecutive years may be required by the Board to take and pass the same examination as unlicensed applicants before allowing such person to renew his certificate.
4. The Board may contract with persons for the development and administration of the examinations required by G.S. 143-151.13(a), for course development related to the examinations, for review of a particular applicant's examination, and for other related services. The person with whom the Board contracts may charge applicants a reasonable fee for the costs associated with the development and administration of the examinations, for course development related to the examinations, for review of the applicant's examinations, and for other related services. The fee shall be agreed to by the Board and the other contracting party. The amount of the fee under this subsection shall not exceed one hundred seventy-five dollars ($175.00). Contracts for the development and administration of the examinations, for course development related to the examinations, and for review of examinations shall not be subject to Article 3, 3C, or 8 of Chapter 143 of the General Statutes or to Article 14 of Chapter 143B of the General Statutes. However, the Board shall: (i) submit all proposed contracts for supplies, materials, printing, equipment, and contractual services that exceed one million dollars ($1,000,000) authorized by this subsection 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 proposed contracts to be awarded by the Board under this subsection a standard clause which provides that the State Auditor and internal auditors of the Board 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 Board shall not award a cost plus percentage of cost agreement or contract for any purpose.

History

(1977, c. 531, s. 1; 2005-289, s. 1; 2008-124, s. 8.2; 2009-451, s. 21.3; 2010-194, s. 25; 2011-326, s. 15(z); 2015-241, s. 7A.4(v).)

Effect of Amendments. - Session Laws 2008-124, s. 8.2, effective July 28, 2008, rewrote subsection (d).

Session Laws 2009-451, s. 21.3, effective July 1, 2009, substituted "four dollar ($4.00)" for "two dollar ($2.00)" in the last sentence of subsection (b).

Session Laws 2010-194, s. 25, effective October 1, 2010, and applicable to all contracts proposed or awarded on or after that date, added the last two sentences in subsection (d).

Session Laws 2011-326, s. 15(z), effective June 27, 2011, in the next-to-last sentence of subsection (d), deleted "statewide and agency term" following "(i) submit all proposed" and inserted "and after" following "contractor during."

Session Laws 2015-241, s. 7A.4(v), effective September 18, 2015, substituted "Article 15 of Chapter 143B" for "Article 3D of Chapter 147" near the end of the fifth sentence of subsection (d).

§ 143-151.17. Grounds for disciplinary actions; investigation; administrative procedures.

1. The Board shall have the power to suspend any or all certificates, revoke any or all certificates, demote any or all certificates to a lower level, or refuse to grant any certificate issued under the provisions of this Article to any person who:
   1. Has been convicted of a felony against this State or the United States, or convicted of a felony in another state that would also be a felony if it had been committed in this State;
   2. Has obtained certification through fraud, deceit, or perjury;
   3. Has knowingly aided or abetted any person practicing contrary to the provisions of this Article or the State Building Code or any building codes adopted by a federally recognized Indian Tribe under G.S. 153A-350.1;
   4. Has defrauded the public or attempted to do so;
   5. Has affixed his signature to a report of inspection or other instrument of service if no inspection has been made by him or under his immediate and responsible direction; or,
   6. Has been guilty of willful misconduct, gross negligence or gross incompetence.
2. The Board may investigate the actions of any qualified Code-enforcement official or applicant upon the verified complaint in writing of any person alleging a violation of subsection (a) of this section. The Board may suspend, revoke, or demote to a lower level any certificate of any qualified Code-enforcement official and refuse to grant a certificate to any applicant, whom it finds to have been guilty of one or more of the actions set out in subsection (a) as grounds for disciplinary action.
3. A denial, suspension, revocation, or demotion to a lower level of a certificate issued under this Article shall be made in accordance with Chapter 150B of the General Statutes.
4. The Board may deny an application for a certificate for any of the grounds that are described in subsection (a) of this section. Within 30 days after receipt of a notification that an application for a certificate has been denied, the applicant may make a written request for a review by a committee designated by the chairman of the Board to determine the reasonableness of the Board's action. The review shall be completed without undue delay, and the applicant shall be notified promptly in writing as to the outcome of the review. Within 30 days after service of the notification as to the outcome, the applicant may make a written request for a hearing under Article 3A of Chapter 150B of the General Statutes if the applicant disagrees with the outcome.
5. The provisions of this section shall apply to Code-enforcement officials and applicants who are employed or seek to be employed by a federally recognized Indian Tribe to perform inspections on tribal lands under G.S. 153A-350.1.

History

(1977, c. 531, s. 1; 1987, c. 827, s. 228; 1993, c. 504, s. 36; 1993 (Reg. Sess., 1994), c. 678, s. 36; 1999-78, s. 5; 2007-120, s. 3.)

Effect of Amendments. - Session Laws 2007-120, s. 3, effective December 1, 2007, and applicable to offenses committed on or after December 1, 2007, in the introductory language of subsection (a), substituted "suspend any or all certificates, revoke any or all certificates, demote any or all certificates to a lower level," for "suspend, revoke"; in subsection (b), added "of this section" at the end of the first sentence, and substituted "suspend, revoke, or demote to a lower level any certificate" for "suspend or revoke the certification" in the second sentence; and in subsection (c), substituted "revocation, or demotion to a lower level" for "or revocation" near the beginning.

§ 143-151.18. Violations; penalty; injunction.

On and after July 1, 1979, it shall be unlawful for any person to represent himself as a qualified Code-enforcement official who does not hold a currently valid certificate of qualification issued by the Board. Further, it shall be unlawful for any person to practice Code enforcement except as allowed by any currently valid certificate issued to that person by the Board. Any person violating any of the provisions of this Article shall be guilty of a Class 1 misdemeanor. The Board is authorized to apply to any judge of the superior court for an injunction in order to prevent any violation or threatened violation of the provisions of this Article.

History

(1977, c. 531, s. 1; 1993, c. 539, s. 1012; 1994, Ex. Sess., c. 24, s. 14(c); 2007-120, s. 4.)

Effect of Amendments. - Session Laws 2007-120, s. 4, effective December 1, 2007, and applicable to offenses committed on or after December 1, 2007, added the second sentence.

§ 143-151.19. Administration.

1. The Division of Engineering and Building Codes in the Department of Insurance shall provide clerical and other staff services required by the Board, and shall administer and enforce all provisions of this Article and all rules promulgated pursuant to this Article, subject to the direction of the Board, except as delegated by this Article to local units of government, other State agencies, corporations, or individuals.
2. The Board shall make copies of this Article and the rules adopted under this Article available to the public at a price determined by the Board.
3. The Board shall keep current a record of the names and addresses of all qualified Code-enforcement officials and additional personal data as the Board deems necessary. The Board annually shall publish a list of all currently certified Code-enforcement officials.
4. Each certificate issued by the Board shall contain such identifying information as the Board requires.
5. The Board shall issue a duplicate certificate to practice as a qualified Code-enforcement official in place of one which has been lost, destroyed, or mutilated upon proper application and payment of a fee to be determined by the Board.

History

(1977, c. 531, s. 1; 1987, c. 827, ss. 224, 229.)

§ 143-151.20. Donations and appropriations.

1. In addition to appropriations made by the General Assembly, the Board may accept for any of its purposes and functions under this Article any and all donations, both real and personal, and grants of money from any governmental unit or public agency, or from any institution, person, firm or corporation, and may receive, utilize, disburse and transfer the same, subject to the approval of the Council of State. Any arrangements pursuant to this section shall be detailed in the next regular report of the Board. Such report shall include the identity of the donor, the nature of the transaction, and the conditions, if any. Any moneys received by the Board pursuant to this section shall be deposited in the State treasury to the account of the Board.
2. The Board may provide grants as a reimbursement for actual expenses incurred by the State or political subdivision thereof for the provisions of training programs of officials from other jurisdictions within the State. The Board, by rules, shall provide for the administration of the grant program authorized herein. In promulgating such rules, the Board shall promote the most efficient and economical program of Code-enforcement training, including the maximum utilization of existing facilities and programs for the purpose of avoiding duplication.

History

(1977, c. 531, s. 1; 1987, c. 827, s. 224.)

§ 143-151.21. Disposition of fees.

Fees collected by the Commissioner under this Article shall be credited to the Insurance Regulatory Fund created under G.S. 58-6-25.

History

(1991, c. 689, s. 295; 2003-221, s. 10.)

§§ 143-151.22 through 143-151.25: Reserved for future codification purposes.

§§ 143-151.26 through 143-151.41: Repealed by Session Laws 1999-393, s. 3, effective August 4, 1999.

Editor's Note. - Session Laws 1999-393, s.3, repealed Article 9D of Chapter 143, as indicated above. Sections 143-151.37 through 143-151.41 had been reserved for future codification purposes.

Session Laws 1999-393, s. 5, provides that structures built before the effective date of the Act shall not be affected by any changes made in this Article.

§ 143-151.42. Prohibition of master meters for electric and natural gas service.

1. From and after September 1, 1977, in order that each occupant of an apartment or other individual dwelling unit may be responsible for his own conservation of electricity and gas, it shall be unlawful for any new residential building, as hereinafter defined, to be served by a master meter for electric service or natural gas service. Each individual dwelling unit shall have individual electric service with a separate electric meter and, if it has natural gas, individual natural gas service with a separate natural gas meter, which service and meters shall be in the name of the tenant or other occupant of said apartment or other dwelling unit. No electric supplier or natural gas supplier, whether regulated public utility or municipal corporation or electric membership corporation supplying said utility service, shall connect any residential building for electric service or natural gas service through a master meter, and said electric or natural gas supplier shall serve each said apartment or dwelling unit by separate service and separate meter and shall bill and charge each individual occupant of said separate apartment or dwelling unit for said electric or natural gas service. A new residential building is hereby defined for the purposes of this section as any building for which a building permit is issued on or after September 1, 1977, which includes two or more apartments or other family dwelling units. Provided, however, that any owner or builder of a multi-unit residential building who desires to provide central heat or air conditioning or central hot water from a central furnace, air conditioner or hot water heater which incorporates solar assistance or other designs which accomplish greater energy conservation than separate heat, hot water, or air conditioning for each dwelling unit, may apply to the North Carolina Utilities Commission for approval of said central heat, air conditioning or hot water system, which may include a central meter for electricity or gas used in said central system, and the Utilities Commission shall promptly consider said application and approve it for such central meters if energy is conserved by said design. This section shall apply to any dwelling unit normally rented or leased for a minimum period of one month or longer, including apartments, condominiums and townhouses, but shall not apply to hotels, motels, hotels or motels that have been converted into condominiums, dormitories, rooming houses or nursing homes, or homes for the elderly, or to a multiunit residential building or building complex where natural gas service is delivered to a master meter for use by the occupants of the units for use only in cooking, ventless fireplaces, or other ancillary purposes.
2. The provisions of this section requiring that service and meters for each individual dwelling unit be in the name of the tenant or other occupant of the apartment or other dwelling unit shall not apply in either of the following circumstances:
   1. The Utilities Commission has approved an application under subsections (h) through (j) of G.S. 62-110.
   2. The tenant and landlord have agreed in the lease that the cost of the electric service or natural gas service or both shall be included in the rental payments and the service shall be in the name of the landlord.

History

(1977, c. 792, s. 9; 2007-98, s. 1; 2011-252, s. 5; 2013-168, s. 1; 2021-23, s. 27(c).)

Editor's Note. - Session Laws 1987, c. 429, s. 3 redesignated this Article, which had been numbered Article 9D, as Article 9E.

Session Laws 2011-252, s. 4, added a new subsection (g1) in G.S. 62-110, which was redesignated subsection (h) at the direction of the Revisor of Statutes. The reference to "G.S. 62-110(g1)" in subsection (b), above, was changed to "G.S. 62-110(h)" to conform to the redesignation.

Session Laws 2011-252, s. 5, which added subsection (b), is applicable to leases entered into on or after October 1, 2011.

Session Laws 2013-168, s. 2, makes the amendment to subsection (b) by Session Laws 2013-168, s. 1, applicable to leases entered into, amended, or renewed, including leases that renew by inaction, on or after June 19, 2013.

Effect of Amendments. - Session Laws 2007-98, s. 1, effective June 20, 2007, inserted "hotels or motels that have been converted into condominiums," in the last sentence.

Session Laws 2011-252, s. 5, effective October 1, 2011, and applicable to leases entered into on or after that date, added the subsection (a) designation; and added subsection (b).

Session Laws 2013-168, s. 1, effective June 19, 2013, substituted "either of the following circumstances: (1) The" for "cases where the" in subsection (b); and added subdivision (b)(2). For applicability, see editor's note.

Session Laws 2021-23, s. 27(c), effective October 1, 2021, rewrote the last sentence of subsection (a), and substituted "subsections (h) through (j) of G.S. 62-110” for "G.S. 62-110(h)” in subdivision (b)(1).

§ 143-151.43. Short title.

This Article is the Home Inspector Licensure Act and may be cited by that name.

History

(1993 (Reg. Sess., 1994), c. 724, s. 1.)

§ 143-151.44. Purpose.

This Article safeguards the public health, safety, and welfare and protects the public from being harmed by unqualified persons by regulating the use of the title "Licensed Home Inspector" and by providing for the licensure and regulation of those who perform home inspections for compensation.

History

(1993 (Reg. Sess., 1994), c. 724, s. 1.)

§ 143-151.45. Definitions.

The following definitions apply in this Article:

1. Repealed by Session Laws 2009-509, s. 3.3, effective October 1, 2013.  See note.
2. Board. - The North Carolina Home Inspector Licensure Board.
3. Compensation. - A fee or anything else of value.
4. Home inspection. - A written evaluation of two or more of the following components of a residential building: heating system, cooling system, plumbing system, electrical system, structural components, foundation, roof, masonry structure, exterior and interior components, or any other related residential housing component.
5. Home inspector. - An individual who engages in the business of performing home inspections for compensation.
6. Residential building. - A structure intended to be, or that is in fact, used as a residence by one or more individuals.

History

(1993 (Reg. Sess., 1994), c. 724, s. 1; 1998-211, s. 33; 2009-509, s. 3.3.)

Editor's Note. - Session Laws 2009-509, s. 3.3, repealed subdivision (1), pertaining to associate home inspectors, effective October 1, 2013.

Effect of Amendments. - Session Laws 2009-509, s. 3.3, effective October 1, 2013, repealed subdivision (1) pertaining to associate home inspectors.

§ 143-151.46. North Carolina Home Inspector Licensure Board established; members; terms; vacancies.

1. Membership. - The North Carolina Home Inspector Licensure Board is established in the Department of Insurance. The Board shall be composed of the Commissioner of Insurance or the Commissioner's designee and seven additional members appointed as follows:
   1. A public member who is not actively engaged in one of the professional categories in subdivisions (2) through (4) of this subsection, appointed by the General Assembly upon the recommendation of the Speaker of the House of Representatives.
   2. Four home inspectors, two of whom shall be appointed by the General Assembly upon the recommendation of the President Pro Tempore of the Senate, one of whom shall be appointed by the General Assembly upon the recommendation of the Speaker of the House of Representatives, and one of whom shall be appointed by the Governor.
   3. A licensed general contractor appointed by the Governor upon the recommendation of the North Carolina Home Builders Association.
   4. A licensed real estate broker appointed by the Governor upon the recommendation of the North Carolina Association of Realtors.
2. Terms. - The members shall be appointed for staggered terms and the initial appointments shall be made prior to August 1, 1995. The appointees shall hold office until July 1 of the year in which their respective terms expire and until their successors are appointed and qualified.
3. Vacancies. - Vacancies in the Board occurring for any reason shall be filled for the unexpired term by the appointing official making the original appointment. Vacancies in positions appointed by the General Assembly upon the recommendation of the President Pro Tempore of the Senate or the Speaker of the House of Representatives shall be filled in accordance with G.S. 120-122.

All members of the Board must be citizens of the State. Appointments by the General Assembly must be made in accordance with G.S. 120-121.

Of the members initially appointed, the home inspector appointed by the Governor shall serve a one-year term. The home inspector appointed by the General Assembly upon the recommendation of the Speaker of the House of Representatives and the licensed real estate broker shall serve two-year terms. One home inspector appointed by the General Assembly upon the recommendation of the President Pro Tempore of the Senate and the licensed contractor shall serve three-year terms. The remaining home inspector appointed by the General Assembly upon the recommendation of the President Pro Tempore of the Senate and the citizen of the State shall serve four-year terms.

Thereafter, as the term of each member expires, a successor shall be appointed for a term of four years.

History

(1993 (Reg. Sess., 1994), c. 724, s. 1; 2011-412, s. 6.)

Effect of Amendments. - Session Laws 2011-412, s. 6, effective October 15, 2011, inserted "actively engaged" in subdivision (a)(1).

§ 143-151.47. Compensation of Board members.

Members of the Board shall receive no salary for serving on the Board. Members may be reimbursed for their travel and other expenses in accordance with G.S. 93B-5 but may not receive the per diem authorized by that statute.

History

(1993 (Reg. Sess., 1994), c. 724, s. 1.)

§ 143-151.48. Election of officers; meetings of Board.

1. Officers. - Within 30 days after making appointments to the Board, the Governor shall call the first meeting of the Board. The Board shall elect a chair and a vice-chair who shall hold office according to rules adopted by the Board.
2. Meetings. - The Board shall hold at least two regular meetings each year as provided by rules adopted by the Board. The Board may hold additional meetings upon the call of the chair or any two Board members. A majority of the Board membership constitutes a quorum.

History

(1993 (Reg. Sess., 1994), c. 724, s. 1.)

§ 143-151.49. Powers and responsibilities of Board.

1. General. - The Board has the power to do all of the following:
   1. Examine and determine the qualifications and fitness of applicants for a new or renewed license.
   2. Adopt and publish a code of ethics and standard of practice for persons licensed under this Article.
   3. Issue, renew, deny, revoke, and suspend licenses under this Article.
   4. Conduct investigations, subpoena individuals and records, and do all other things necessary and proper to discipline persons licensed under this Article and to enforce this Article.
   5. Employ professional, clerical, investigative, or special personnel necessary to carry out the provisions of this Article.
   6. Purchase or rent office space, equipment, and supplies necessary to carry out the provisions of this Article.
   7. Adopt a seal by which it shall authenticate its proceedings, official records, and licenses.
   8. Conduct administrative hearings in accordance with Article 3A of Chapter 150B of the General Statutes.
   9. Establish fees as allowed by this Article.
   10. Publish and make available upon request the licensure standards prescribed under this Article and all rules adopted by the Board.
   11. Request and receive the assistance of State educational institutions or other State agencies.
   12. Establish education requirements for licensure.
   13. Establish continuing education requirements for persons licensed under this Article.
   14. Adopt rules necessary to implement this Article.
2. Education Requirements. - The education program adopted by the Board may not consist of more than 200 hours of instruction. The instruction may include field training, classroom instruction, distance learning, peer review, and any other educational format approved by the Board.

History

(1993 (Reg. Sess., 1994), c. 724, s. 1; 2009-509, s. 2.1.)

Editor's Note. - Session Laws 2009-509, s. 1.2, provides: "The North Carolina Home Inspector Licensure Board has the authority under G.S. 143-151.49(a)(12) and G.S. 143-151.55(a) to establish continuing education requirements as a condition of licensure renewal. Under that authority, the Board must require home inspectors and associate home inspectors licensed on or before September 30, 2011, to complete a continuing education program that focuses on inspection techniques and reporting requirements. The program must consist of 48 hours of instruction, composed of three separate 16-hour segments. A separate segment must be offered each renewal period. A licensee must complete one segment of the program for each of the three license renewal periods beginning with the license renewal period that starts on October 1, 2011. A licensee must complete the three-year program by October 1, 2014. Completion of each program segment satisfies the continuing education requirements under G.S. 143-151.64 for the renewal period in which it is completed. The Board may not allow continuing education credit for an unapproved course under G.S. 143-151.64(c) to be substituted for the continuing education requirements of this section."

Effect of Amendments. - Session Laws 2009-509, s. 2.1, effective October 1, 2011, added "Examine and" at the beginning of subdivision (a)(1); added subdivision (a)(11a); and rewrote subsection (b) pertaining to development of a licensing examination.

§ 143-151.50. License required to perform home inspections for compensation or to claim to be a "licensed home inspector".

1. Requirement. - To perform a home inspection for compensation or to claim to be a licensed home inspector, an individual must be licensed by the Board. An individual who is not licensed by the Board may perform a home inspection without compensation.
2. Form of License. - The Board may issue a license only to an individual and may not issue a license to a partnership, an association, a corporation, a firm, or another group. A licensed home inspector, however, may perform home inspections for or on behalf of a partnership, an association, a corporation, a firm, or another group, may conduct business as one of these entities, and may enter into and enforce contracts as one of these entities.

History

(1993 (Reg. Sess., 1994), c. 724, s. 1; 2009-509, s. 3.4.)

Effect of Amendments. - Session Laws 2009-509, s. 3.4, effective October 1, 2013, substituted "compensation or to claim to be a licensed home inspector" for "compensation on or after October 1, 1996, or to claim to be a licensed home inspector or a licensed associate home inspector on or after that date" in the first sentence of subsection (a); and deleted "or licensed associate home inspector" following "licensed home inspector" in the second sentence of subsection (b).

§ 143-151.51. Requirements to be licensed as a home inspector.

1. Licensure Eligibility. - To be eligible to be licensed as a home inspector, an applicant must do all of the following:
   1. Submit a completed application to the Board upon a form provided by the Board.
   2. Pass a licensing examination prescribed by the Board.
   3. Repealed by Session Laws 2009-509, s. 2.2, effective October 1, 2011.
   4. Pay the applicable fees.
   5. Meet one of the following three conditions:
      1. Have a high school diploma or its equivalent and satisfactorily complete an education program approved by the Board. The program must be completed within three years of the date the applicant submits an application for licensure under this section.
      2. Have education and experience the Board considers to be equivalent to that required by sub-subdivision a. of this subdivision.
      3. Be licensed for at least six months as a general contractor under Article 1 of Chapter 87 of the General Statutes, as an architect under Chapter 83A of the General Statutes, or as a professional engineer under Chapter 89C of the General Statutes. A person qualifying under this sub-subdivision on or after October 1, 2011, must remain in good standing with the person's respective licensing board.
2. License. - Upon compliance with the conditions of licensure under subsection (a) of this section, to be eligible to be licensed as a home inspector, an applicant must meet all of the insurance requirements of this subsection.
   1. General liability insurance in the amount of two hundred fifty thousand dollars ($250,000), which insurance may be individual coverage or coverage under an employer policy, with coverage parameters established by the Board.
   2. One of the following:
      1. Minimum net assets in an amount determined by the Board, which amount may not be less than five thousand dollars ($5,000) nor more than ten thousand dollars ($10,000).
      2. A bond in an amount determined by the Board, which amount may not be less than five thousand dollars ($5,000) nor more than ten thousand dollars ($10,000).
      3. Errors and omissions insurance in the amount of two hundred fifty thousand dollars ($250,000), which insurance may be individual coverage or coverage under an employer policy, with coverage parameters established by the Board.

History

(1993 (Reg. Sess., 1994), c. 724, s. 1; 2009-509, s. 2.2.)

Editor's Note. - Session Laws 2009-509, s. 1.2, provides: "The North Carolina Home Inspector Licensure Board has the authority under G.S. 143-151.49(a)(12) and G.S. 143-151.55(a) to establish continuing education requirements as a condition of licensure renewal. Under that authority, the Board must require home inspectors and associate home inspectors licensed on or before September 30, 2011, to complete a continuing education program that focuses on inspection techniques and reporting requirements. The program must consist of 48 hours of instruction, composed of three separate 16-hour segments. A separate segment must be offered each renewal period. A licensee must complete one segment of the program for each of the three license renewal periods beginning with the license renewal period that starts on October 1, 2011. A licensee must complete the three-year program by October 1, 2014. Completion of each program segment satisfies the continuing education requirements under G.S. 143-151.64 for the renewal period in which it is completed. The Board may not allow continuing education credit for an unapproved course under G.S. 143-151.6 4(c) to be substituted for the continuing education requirements of this section."

Session Laws 2009-509, s. 3.1, provides: "The Board may not accept an application for licensure as an associate home inspector after April 1, 2011. The Board may not issue a license for an associate home inspector on or after October 1, 2011. The Board may not renew an associate home inspector license on or after October 1, 2013."

Session Laws 2009-509, s. 3.2, provides: "Notwithstanding G.S. 143-151.51, as rewritten by Section 2.2 of this act, a person who holds a license as an associate home inspector on October 1, 2011, may satisfy the education program requirement for licensure as a home inspector by being engaged as a licensed associate home inspector for one year and completing 100 home inspections for compensation. A person licensed as a home inspector under this section must complete the continuing education requirements of Section 1.2 of this act. An associate home inspector may take one or more of the program segments required under Section 1.2 of this act while licensed as an associate home inspector."

Effect of Amendments. - Session Laws 2009-509, s. 2.2, effective October 1, 2011, redesignated the former section as subsection (a) and added subsection (b); and, in present subsection (a), inserted the subsection heading, inserted "eligible to be" in the introductory language, deleted subdivision (a)(3) which read: "Have minimum net assets or a bond in an amount determined by the Board. The amount may not be less than five thousand dollars ($5,000) nor more than ten thousand dollars ($10,000)", substituted "equivalent and satisfactorily complete an education program approved by the Board" for "have been engaged as a licensed associate home inspector for at least one year, and have completed 100 home inspections for compensation" in the first sentence and added the second sentence in subdivision (a)(5)a., substituted "sub-subdivision a. of this subdivision" for "subpart a. of this subdivision" at the end of subdivision (a)(5)b., and inserted "for at least six months" in the first sentence and added the second sentence in subdivision (a)(5)c.

§ 143-151.52: Repealed by Session Laws 2009-509, s. 3.3, effective October 1, 2013.

History

(1993 (Reg. Sess., 1994), c. 724, s. 1; 1998-211, s. 34; 2009-509, s. 3.3; repealed by 2009-509, s. 3.3, effective October 1, 2013.)

Editor's Note. - Session Laws 2009-509, s. 3.1, provides: "The Board may not accept an application for licensure as an associate home inspector after April 1, 2011. The Board may not issue a license for an associate home inspector on or after October 1, 2011. The Board may not renew an associate home inspector license on or after October 1, 2013."

Former 143-151.52 pertained to requirements to be licensed as an associate home inspector.

§ 143-151.53. Notification to applicant following evaluation of application.

If the Board finds that the applicant has not met fully the requirements for licensing, the Board shall refuse to issue the license and shall notify in writing the applicant of the denial, stating the grounds of the denial. The application may also be denied for any reason for which a license may be suspended or revoked or not renewed under G.S. 143-151.56. Within 30 days after service of the notification, the applicant may make a written demand upon the Board for a review to determine the reasonableness of the Board's action. The review shall be completed without undue delay, and the applicant shall be notified promptly in writing as to the outcome of the review. Within 30 days after service of the notification as to the outcome, the applicant may make a written demand upon the Board for a hearing under Article 3A of Chapter 150B of the General Statutes if the applicant disagrees with the outcome.

History

(1993 (Reg. Sess., 1994), c. 724, s. 1; 1998-211, s. 35.)

§ 143-151.54. Miscellaneous license provisions.

1. License as Property of the Board and Display of License. - A license issued by the Board is the property of the Board. If the Board suspends or revokes a license issued by it, the individual to whom it is issued must give it to the Board upon demand. An individual who is licensed by the Board must display the license certificate in the manner prescribed by the Board. A license holder whose address changes must report the change to the Board.
2. Report Criminal Convictions and Disciplinary Actions. - A license holder who is convicted of any felony or misdemeanor or is disciplined by any governmental agency in connection with any other occupational or professional license shall file with the Board a written report of the conviction or disciplinary action within 60 days of the final judgment, order, or disposition of the case.

History

(1993 (Reg. Sess., 1994), c. 724, s. 1; 2009-509, s. 5.1.)

Effect of Amendments. - Session Laws 2009-509, s. 5.1, effective October 1, 2009, designated the previously existing provisions of the section as subsection (a); inserted the subsection (a) heading; and added subsection (b).

§ 143-151.55. Renewal of license; inactive licenses; lapsed licenses.

1. Renewal. - A license expires on September 30 of each year. A license may be renewed by filing an application for renewal with the Board and paying the required renewal fee. The Board must notify license holders at least 30 days before their licenses expire. The Board must renew the license of a person who files an application for renewal, pays the required renewal fee, has fulfilled the continuing education requirements set by the Board, and is not in violation of this Article when the application is filed. If the Board imposes a continuing education requirement as a condition of renewing a license, the Board must ensure that the courses needed to fulfill the requirement are available in all geographic areas of the State.
2. Late Renewal. - The Board may provide for the late renewal of a license upon the payment of a late fee, but no late renewal of a license may be granted more than one year after the license expires.
3. Inactive License. - A license holder may apply to the Board to be placed on inactive status. An applicant for inactive status must follow the procedure set by the Board. A license holder who is granted inactive status is not subject to the license renewal requirements during the period the license holder remains on inactive status.
4. Lapsed License. - The license of a licensed home inspector shall lapse if the licensee fails to continuously maintain the [insurance] requirements provided in G.S. 143-151.58(b).

A license holder whose application is granted and is placed on inactive status may apply to the Board to be reinstated to active status at any time. To change a license from inactive status to active status, the license holder must complete the same number of continuing education credit hours that would have been required of the license holder had the license holder maintained an active license. The number of continuing education credit hours required to return an inactive license to active status shall not exceed 24 credit hours. The Board may set conditions for reinstatement to active status. An individual who is on inactive status and applies to be reinstated to active status must comply with the conditions set by the Board.

History

(1993 (Reg. Sess., 1994), c. 724, s. 1; 1999-149, s. 1; 2009-509, ss. 2.3, 3.5, 5.2.)

Editor's Note. - Subsection (d) was amended by Session Laws 2009-509, ss. 2.3 and 3.5, in the coded bill drafting format provided by G.S. 120-20.1. In subsection (d) as amended by s. 3.5, effective October 1, 2013, the word "insurance" was inserted without the required underlined text indicating the change. Subsection (d) has been set out in the form above at the direction of the Revisor of Statutes.

Session Laws 2009-509, s. 1.2, provides: "The North Carolina Home Inspector Licensure Board has the authority under G.S. 143-151.49(a)(12) and G.S. 143-151.55(a) to establish continuing education requirements as a condition of licensure renewal. Under that authority, the Board must require home inspectors and associate home inspectors licensed on or before September 30, 2011, to complete a continuing education program that focuses on inspection techniques and reporting requirements. The program must consist of 48 hours of instruction, composed of three separate 16-hour segments. A separate segment must be offered each renewal period. A licensee must complete one segment of the program for each of the three license renewal periods beginning with the license renewal period that starts on October 1, 2011. A licensee must complete the three-year program by October 1, 2014. Completion of each program segment satisfies the continuing education requirements under G.S. 143-151.64 for the renewal period in which it is completed. The Board may not allow continuing education credit for an unapproved course under G.S. 143-151.64(c) to be substituted for the continuing education requirements of this section."

Session Laws 2009-509, s. 3.1, provides: "The Board may not accept an application for licensure as an associate home inspector after April 1, 2011. The Board may not issue a license for an associate home inspector on or after October 1, 2011. The Board may not renew an associate home inspector license on or after October 1, 2013."

Effect of Amendments. - Session Laws 2009-509, s. 2.3, effective October 1, 2011, substituted "the requirements provided in G.S. 143-151.58(b)" for "minimum net assets or a bond as required by G.S. 143-151.58" at the end of the first sentence of subsection (d).

Session Laws 2009-509, s. 3.5, effective October 1, 2013, deleted the former second sentence in subsection (d), which read: "The license of a licensed associate home inspector shall lapse if the licensee fails to continuously be employed by or affiliated with a licensed home inspector as required by G.S. 143-151.58."

Session Laws 2009-509, s. 5.2, effective October 1, 2009, substituted "one year" for "five years" in subsection (b); and added the second and third sentences in the second paragraph of subsection (c).

§ 143-151.56. Suspension, revocation, and refusal to renew license.

1. The Board may deny or refuse to issue or renew a license, may suspend or revoke a license, or may impose probationary conditions on a license if the license holder or applicant for licensure has engaged in any of the following conduct:
   1. Employed fraud, deceit, or misrepresentation in obtaining or attempting to obtain or renew a license.
   2. Committed an act of malpractice, gross negligence, or incompetence in the practice of home inspections.
   3. Without having a current license, either performed home inspections for compensation or claimed to be licensed.
   4. Engaged in conduct that could result in harm or injury to the public.
   5. Been convicted of or pled guilty or nolo contendere to any misdemeanor involving moral turpitude or to any felony.
   6. Been adjudicated incompetent.
   7. Engaged in any act or practice that violates any of the provisions of this Article or any rule issued by the Board, or aided, abetted, or assisted any person in a violation of any of the provisions of this Article.
   8. Failed to maintain the requirements provided in G.S. 143-151.58(b).
2. A denial of licensure, refusal to renew, suspension, revocation, or imposition of probationary conditions upon a license holder may be ordered by the Board after a hearing held in accordance with Article 3A of Chapter 150B of the General Statutes and rules adopted by the Board. An application may be made to the Board for reinstatement of a revoked license if the revocation has been in effect for at least one year.

History

(1993 (Reg. Sess., 1994), c. 724, s. 1; 1998-211, s. 36; 2009-509, s. 2.4.)

Effect of Amendments. - Session Laws 2009-509, s. 2.4, effective October 1, 2011, added subdivision (a)(8).

§ 143-151.57. Fees.

1. Maximum Fees. - The Board may adopt fees that do not exceed the amounts set in the following table for administering this Article:
2. Subsequent Application. - An individual who applied for a license as a home inspector and who failed the home inspector examination is not required to pay an additional application fee if the individual submits another application for a license as a home inspector. The individual must pay the examination fee, however, to be eligible to take the examination again. An individual may take the examination only once every 180 days.

Item Maximum Fee Application for home inspector license $35.00 Home inspector examination 80.00 Issuance or renewal of home inspector license 160.00 Late renewal of home inspector license 30.00 Application for course approval 150.00 Renewal of course approval 75.00 Course fee, per credit hour per licensee 5.00 Credit for unapproved continuing education course 50.00 Cost of printing and mailing.

History

(1993 (Reg. Sess., 1994), c. 724, s. 1; 1999-149, s. 2; 2000-140, s. 32; 2009-451, s. 21.8; 2009-509, ss. 3.6, 5.3; 2014-115, s. 12.)

Editor's Note. - Subsection (a) of this section was amended by Session Laws 2009-451, s. 21.8, effective July 1, 2009, and by Session Laws 2009-509, s. 3.6, effective October 1, 2013, in the coded bill drafting format provided by G.S. 120-20.1. Session Laws 2009-509 did not account for the changes made to the section by Session Laws 2009-451, and subsection (a) has been set out in the form above at the direction of the Revisor of Statutes.

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. 28.5, is a severability clause.

Effect of Amendments. - Session Laws 2009-451, s. 21.8, effective July 1, 2009, in subsection (a), inserted "or renewal" in the fourth and fifth items, and in the first item, substituted "35.00" for "25.00"; in the second item, substituted "20.00" for "15.00"; in the third item, substituted "80.00" for "75.00"; in the fourth item, substituted "160.00" for "150.00"; in the fifth item, substituted "110.00" for "100.00"; in the sixth item, substituted "30.00" for "25.00"; and in the seventh item, substituted "20.00" for "15.00."

Session Laws 2009-509, s. 3.6, effective October 1, 2013, in the maximum fee table in subsection (a), deleted entries for "Application for associate home inspector," "Issuance of associate home inspector license," and "Late renewal of associate home inspector license."

Session Laws 2009-509, s. 5.3, effective August 26, 2009, added the last sentence in subsection (b).

Session Laws 2014-115, s. 12, effective August 11, 2014, deleted "Or renewal 20.00 110.00 20.00" at the end of the form in subsection (a).

§ 143-151.58. Duties of licensed home inspector.

1. Home Inspection Report. - A licensed home inspector must give to each person for whom the inspector performs a home inspection for compensation a written report of the home inspection. The inspector must give the person the report by the date set in a written agreement by the parties to the home inspection. If the parties to the home inspection did not agree on a date in a written agreement, the inspector must give the person the report within three business days after the inspection was performed.
2. Summary Page. - A written report provided under subsection (a) of this section for a prepurchase home inspection of three or more systems must include a summary page that contains the information required by this subsection. All other subject matters pertaining to the home inspection must appear in the body of the report. The summary page must contain the following statement: "This summary page is not the entire report. The complete report may include additional information of interest or concern to you. It is strongly recommended that you promptly read the complete report. For information regarding the negotiability of any item in this report under the real estate purchase contract, contact your North Carolina real estate agent or an attorney."
3. State Building Code. - If a licensee includes a deficiency in the written report of a home inspection that is stated as a violation of the North Carolina State Residential Building Code, the licensee must do all of the following:
   1. Determine the date of construction, renovation, and any subsequent installation or replacement of any system or component of the home.
   2. Determine the State Building Code in effect at the time of construction, renovation, and any subsequent installation or replacement of any system or component of the home.
   3. Conduct the home inspection using the building codes in effect at the time of the construction, renovation, and any subsequent installation or replacement of any system or component of the home.
4. Insurance, Net Assets, and Bond Requirements. - A licensed home inspector must continuously maintain general liability insurance and minimum net assets, a bond, or errors and omissions insurance as required in G.S. 143-151.51(b).
5. Repealed by Session Laws 2009-509, s. 3.3, effective October 1, 2013.
6. Record Keeping. - All licensees under this Article shall make and keep full and accurate records of business done under their licenses. Records shall include the written, signed contract and the written report required by subsection (a) of this section and the standards of practice referred to in G.S. 143-151.49(a)(2) and any other information the Board requires by rule. Records shall be retained by licensees for not less than three years. Licensees shall furnish their records to the Board on demand.

The summary page must describe any system or component of the home that does not function as intended, allowing for normal wear and tear that does not prevent the system or component from functioning as intended. The summary page must also describe any system or component that appears not to function as intended, based upon documented tangible evidence, and that requires either subsequent examination or further investigation by a specialist. The summary page may describe any system or component that poses a safety concern.

In order to fully inform the client, if the licensee describes a deficiency as a violation of the State Building Code in the written report, then the report shall include the information described in subdivision (1) of this subsection and photocopies of the relevant provisions of the State Building Code used pursuant to subdivision (2) of this subsection to determine any violation stated in the report. The Board may adopt rules that are more restrictive on the use of the State Building Code by home inspectors.

History

(1993 (Reg. Sess., 1994), c. 724, s. 1; 1999-149, s. 3; 2009-509, ss. 2.5, 3.3, 3.7, 4.1, 4.2.)

Effect of Amendments. - Session Laws 2009-509, s. 2.5, effective October 1, 2011, rewrote subsection (b) pertaining to net assets and bond requirements.

Session Laws 2009-509, ss. 3.3 and 3.7, effective October 1, 2013, deleted "or licensed associate home inspector" following "licensed home inspector" in the section heading and in the first sentence of subsection (a); and repealed subsection (c) pertaining to supervision of licensed associate home inspectors.

Session Laws 2009-509, ss. 4.1 and 4.2, effective October 1, 2009, added subsections (a1) and (a2); and inserted "subsection (a) of this section and" in the second sentence of subsection (d).

§ 143-151.59. Violation is a misdemeanor.

A person who violates a provision of this Article is guilty of a Class 2 misdemeanor. Each unlawful act or practice constitutes a distinct and separate offense.

History

(1993 (Reg. Sess., 1994), c. 724, s. 1.)

§ 143-151.60. Injunctions.

The Board may make application to any appropriate court for an order enjoining violations of this Article. Upon a showing by the Board that any person has violated or is about to violate this Article, the court may grant an injunction or a restraining order or take other appropriate action.

History

(1993 (Reg. Sess., 1994), c. 724, s. 1.)

§ 143-151.61: Repealed by Session Laws 2009-509, s. 3.3, effective October 1, 2013.

History

(1993 (Reg. Sess., 1994), c. 724, s. 1; 2009-509, s. 3.3; repealed by 2009-509, s. 3.3, effective October 1, 2013.)

Editor's Note. - Former 143-151.61 pertained to certain applicants do not have to be licensed as an associate home inspector before being eligible for licensure as a home inspector.

§ 143-151.62. Persons and practices not affected.

This Article does not apply to any of the following:

1. A person who is employed as a code enforcement official by the State or a political subdivision of the State and is certified pursuant to Article 9C of Chapter 143 of the General Statutes, when acting within the scope of that employment.
2. A plumbing or heating contractor who does not claim to be a home inspector and is licensed under Article 2 of Chapter 87 of the General Statutes, when acting pursuant to that Article.
3. An electrical contractor who does not claim to be a home inspector and is licensed under Article 4 of Chapter 87 of the General Statutes, when acting pursuant to that Article.
4. A real estate broker or a real estate sales representative who does not claim to be a home inspector and is licensed under Article 1 of Chapter 93A of the General Statutes, when acting pursuant to that Article.
5. A structural pest control licensee licensed under the provisions of Article 4C of Chapter 106 of the General Statutes, an employee of the licensee, or a certified applicator licensed under the provisions of Article 4C of Chapter 106 of the General Statutes who does not claim to be a home inspector, while performing structural pest control activities pursuant to that Article.

History

(1993 (Reg. Sess., 1994), c. 724, s. 1.)

§ 143-151.63. Administration.

1. The Division of Engineering and Building Code in the Department of Insurance shall provide clerical and other staff services required by the Board, and shall administer and enforce all provisions of this Article and all rules adopted under this Article, subject to the direction of the Board. The Board shall reimburse the Division for its services to the Board.
2. Any monies received by the Board pursuant to this Article shall be deposited in the State treasury to the account of the Board and shall be used to administer this Article.
3. The books and records of the Board are subject to the oversight of the State Auditor, as provided in G.S. 93B-4.

History

(1993 (Reg. Sess., 1994), c. 724, s. 1.)

§ 143-151.64. Continuing education requirements.

1. Requirements. - The Board may establish programs of continuing education for licensees under this Article. A licensee subject to a program under this section shall present evidence to the Board upon the license renewal following initial licensure, and every renewal thereafter, that during the 12 months preceding the annual license expiration date the licensee has completed the required number of classroom hours of instruction in courses approved by the Board. Annual continuing education hour requirements shall be determined by the Board, but shall not be less than 12 credit hours and no more than 20 hours. No member of the Board shall provide or sponsor a continuing education course under this section while that person is serving on the Board.
2. Fees. - The Board may establish a nonrefundable course application fee to be charged to a course sponsor for the review and approval of a proposed continuing education course. Approval of a continuing education course must be renewed annually. The Board may also require a course sponsor to pay a fee for each licensee completing an approved continuing education course conducted by the sponsor.
3. Credit for Unapproved Course. - The Board may award continuing education credit for an unapproved course or related educational activity. The Board may prescribe procedures for a licensee to submit information on an unapproved course or related educational activity for continuing education credit. The Board may charge a fee to the licensee for each course or activity submitted.
4. Extension of Time. - The Board may, for good cause shown, grant extensions of time to licensees to comply with these requirements. Any licensee who, after obtaining an extension under this subsection, offers evidence satisfactory to the Board that the licensee has satisfactorily completed the required continuing education courses, is in compliance with this section.
5. Rules. - The Board may adopt rules governing continuing education requirements, including rules that govern:
   1. The content and subject matter of continuing education courses.
   2. The criteria, standards, and procedures for the approval of courses, course sponsors, and course instructors.
   3. The methods of instruction.
   4. The computation of course credit.
   5. The ability to carry forward course credit from one year to another.
   6. The waiver of or variance from the continuing education requirement for hardship or other reasons.
   7. The procedures for compliance and sanctions for noncompliance.

History

(1999-149, s. 4; 2001-421, s. 2.5; 2009-509, s. 1.1.)

Editor's Note. - Session Laws 2009-509, s. 1.2, provides: "The North Carolina Home Inspector Licensure Board has the authority under G.S. 143-151.49(a)(12) and G.S. 143-151.55(a) to establish continuing education requirements as a condition of licensure renewal. Under that authority, the Board must require home inspectors and associate home inspectors licensed on or before September 30, 2011, to complete a continuing education program that focuses on inspection techniques and reporting requirements. The program must consist of 48 hours of instruction, composed of three separate 16-hour segments. A separate segment must be offered each renewal period. A licensee must complete one segment of the program for each of the three license renewal periods beginning with the license renewal period that starts on October 1, 2011. A licensee must complete the three-year program by October 1, 2014. Completion of each program segment satisfies the continuing education requirements under G.S. 143-151.64 for the renewal period in which it is completed. The Board may not allow continuing education credit for an unapproved course under G.S. 143-151.64(c) to be substituted for the continuing education requirements of this section."

Effect of Amendments. - Session Laws 2009-509, s. 1.1, effective October 1, 2009, substituted "but shall not be less than 12 credit hours and no more than 20 hours" for "but shall not be more than 12 credit hours" at the end of the second sentence in subsection (a).

§§ 143-151.65 through 143-151.69: Reserved for future codification purposes.

§ 143-151.70. Short title.

This Article shall be known as the Military Lands Protection Act of 2013.

History

(2013-206, s. 1.)

Editor's Note. - Session Laws 2013-206, s. 4, made this Article effective October 1, 2013, and applicable to tall buildings and structures for which construction is initiated on or after that date.

§ 143-151.71. Definitions.

Within the meaning of this Article:

1. "Area surrounding major military installations" is the area that extends five miles beyond the boundary of a major military installation and may include incorporated and unincorporated areas of counties and municipalities.
2. Repealed by Session Laws 2014-79, s. 2, effective July 22, 2014.
3. "Commissioner" means the Commissioner of Insurance.
4. "Construction" includes reconstruction, alteration, or expansion.
5. "Major military installation" means Fort Bragg, Pope Army Airfield, Camp Lejeune Marine Corps Air Base, New River Marine Corps Air Station, Cherry Point Marine Corps Air Station, Military Ocean Terminal at Sunny Point, the United States Coast Guard Air Station at Elizabeth City, Naval Support Activity Northwest, Air Route Surveillance Radar (ARSR-4) at Fort Fisher, and Seymour Johnson Air Force Base, in its own right and as the responsible entity for the Dare County Bombing Range, and any facility located within the State that is subject to the installations' oversight and control.
6. "Person" means any individual, partnership, firm, association, joint venture, public or private corporation, trust, estate, commission, board, public or private institution, utility, cooperative, interstate body, the State of North Carolina and its agencies and political subdivisions, or other legal entity.
7. "State Construction Office" means the State Construction Office of the Department of Administration.
8. "Tall buildings or structures" means any building, structure, or unit within a multiunit building with a vertical height of more than 200 feet measured from the top of the foundation of the building, structure, or unit and the uppermost point of the building, structure, or unit. "Tall buildings or structures" do not include buildings and structures listed individually or as contributing resources within a district listed in the National Register of Historic Places.

History

(2013-206, s. 1; 2014-79, s. 2.)

Effect of Amendments. - Session Laws 2014-79, s. 2, effective July 22, 2014, deleted former subdivision (2), defining "Building Code Council"; and added subdivision (6a).

§ 143-151.72. Legislative findings.

North Carolina has a vested economic interest in preserving, maintaining, and sustaining land uses that are compatible with military activities at major installations. Development located proximate to military installations has been identified as a critical issue impacting the long-term viability of the military in this State. Additional concerns associated with development include loss of access to air space and coastal and marine areas and radio frequency encroachment. The construction of tall buildings or structures in areas surrounding major military installations is of utmost concern to the State as those buildings and structures may interfere with or impede the military's ability to carry out activities that are vital to its function and future presence in North Carolina.

History

(2013-206, s. 1.)

§ 143-151.73. Certain buildings and structures prohibited without endorsement.

1. No county or city may authorize the construction of and no person may construct a tall building or structure in any area surrounding a major military installation in this State, unless the county or city is in receipt of either a letter of endorsement issued to the person by the State Construction Office pursuant to G.S. 143-151.75 or proof of the State Construction Office's failure to act within the time allowed pursuant to G.S. 143-151.75.
2. No county or city may authorize the provision of the following utility services to any building or structure constructed in violation of subsection (a) of this section: electricity, telephone, gas, water, sewer, or septic system.

History

(2013-206, s. 1; 2014-79, s. 3.)

Effect of Amendments. - Session Laws 2014-79, s. 3, effective July 22, 2014, in subsection (a), substituted "State Construction Office" for "Building Code Council" and "State Construction Office's" for "Council's."

§ 143-151.74. Exemptions from applicability.

1. Wind energy facilities and wind energy facility expansions, as those terms are defined in Chapter 143 of the General Statutes, that are subject to the applicable permit requirements of that Chapter shall be exempt from obtaining the endorsement required by this Article.
2. Cellular, radio, and television towers erected to temporarily replace cellular, radio, and television towers that are damaged or destroyed due to a natural disaster shall be exempt from obtaining the endorsement required by this Article provided all of the following conditions are met:
   1. The height of the cellular, radio, or television tower that is erected to temporarily replace the cellular, radio, or television tower that is damaged or destroyed does not exceed the height of the original cellular, radio, or television tower.
   2. A disaster has been declared pursuant to Chapter 166A of the General Statutes for the area in which the damaged or destroyed cellular, radio, or television tower is located.
   3. The temporary cellular, radio, or television tower shall only remain in place until the expiration of the declared disaster.
3. The modification, replacement, removal, or addition of antennas on cellular, radio, or television towers in an area surrounding a major military installation shall be exempt from obtaining the endorsement required by this Article provided the modification, replacement, removal, or addition does not increase the vertical height of the structure.

History

(2013-206, s. 1; 2013-413, s. 47; 2014-115, s. 17.)

Effect of Amendments. - Session Laws 2013-413, s. 47, inserted "radio" following "cellular" throughout the section. For effective date, see Editor's note.

§ 143-151.75. Endorsement for proposed tall buildings or structures required.

1. No person shall undertake construction of a tall building or structure in any area surrounding a major military installation in this State without either first obtaining the endorsement from the State Construction Office or proof of the State Construction Office's failure to act within the time allowed.
2. A person seeking endorsement for a proposed tall building or structure in any area surrounding a major military installation in this State shall provide written notice of the intent to seek endorsement to the base commander of the major military installation that is located within five miles of the proposed tall building or structure and shall provide all of the following to the State Construction Office:
   1. Identification of the major military installation and the base commander of the installation that is located within five miles of the proposed tall building or structure.
   2. A copy of the written notice sent to the base commander of the installation identified in subdivision (1) of this subsection that is located within five miles of the proposed tall building or structure.
   3. A written "Determination of No Hazard to Air Navigation" issued by the Federal Aviation Administration pursuant to Subpart D of Part 77 of Title 14 of the Code of Federal Regulations (January 1, 2012, Edition) for the proposed tall building or structure.
3. After receipt of the information provided by the applicant pursuant to subsection (b) of this section, the State Construction Office shall, in writing, request a written statement concerning the proposed tall building or structure from the base commander of the major military installation identified in subdivision (1) of subsection (b) of this section. The State Construction Office shall request that the following information be included in the written statement from the base commander:
   1. A determination whether the location of the proposed tall building or structure is within a protected area that surrounds the installation.
   2. A determination whether any activities of the installation may be adversely affected by the proposed tall building or structure. A detailed description of the potential adverse effects, including frequency disturbances and physical obstructions, shall accompany the determination required by this subdivision.
4. The State Construction Office shall not endorse a tall building or structure if the State Construction Office finds any one or more of the following:
   1. The proposed tall building or structure would encroach upon or otherwise interfere with the mission, training, or operations of any major military installation in North Carolina and result in a detriment to continued military presence in the State. In its evaluation, the State Construction Office may consider whether the proposed tall building or structure would cause interference with air navigation routes, air traffic control areas, military training routes, or radar based on the written statement received from a base commander as provided in subsection (c) of this section and written comments received by members of affected communities. Provided, however, if the State Construction Office does not receive a written statement requested pursuant to subsection (c) of this section within 45 days of issuance of the request to the base commander, the State Construction Office shall deem the tall building or structure as endorsed by the base commander.
   2. The State Construction Office is not in receipt of the written "Determination of No Hazard to Air Navigation" issued to the person by the Federal Aviation Administration required pursuant to subdivision (3) of subsection (b) of this section.
5. The State Construction Office shall make a final decision on the request for endorsement of a tall building or structure within 90 days from the date on which the State Construction Office requested the written statement from the base commander of the major military installation identified in subdivision (1) of subsection (b) of this section. If the State Construction Office determines that a request for a tall building or structure fails to meet the requirements for endorsement under this section, the State Construction Office shall deny the request. The State Construction Office shall notify the person of the denial, and the notice shall include a written statement of the reasons for the denial. If the State Construction Office fails to act within any time period set forth in this section, the person may treat the failure to act as a decision to endorse the tall building or structure.
6. The State Construction Office may meet by telephone, video, or Internet conference, so long as consistent with applicable law regarding public meetings, to make a decision on a request for endorsement for a tall building or structure pursuant to subsection (e) of this section.

History

(2013-206, s. 1; 2014-79, s. 4.)

Effect of Amendments. - Session Laws 2014-79, s. 4, effective July 22, 2014, substituted "State Construction Office" for "Building Code Council" and similar language throughout the section.

§ 143-151.76. Application to existing tall buildings and structures.

G.S. 143-151.73 applies to tall buildings or structures that existed in an area surrounding major military installations upon the effective date of this Article as follows:

1. No reconstruction, alteration, or expansion may aggravate or intensify a violation by an existing building or structure that did not comply with G.S. 143-151.73 upon its effective date.
2. No reconstruction, alteration, or expansion may cause or create a violation by an existing building or structure that did comply with G.S. 143-151.73 upon its effective date.

History

(2013-206, s. 1.)

§ 143-151.77. Enforcement and penalties.

1. In addition to injunctive relief, the Commissioner may assess and collect a civil penalty against any person who violates any of the provisions of this Article or rules adopted pursuant to this Article, as provided in this section. The maximum civil penalty for a violation is five thousand dollars ($5,000). A civil penalty may be assessed from the date of the violation. Each day of a continuing violation may constitute a separate violation.
2. The Commissioner shall determine the amount of the civil penalty and shall notify the person who is assessed the civil penalty of the amount of the penalty and the reason for assessing the penalty. The notice of assessment shall be served by any means authorized under Rule 4 of G.S. 1A-1 and shall direct the violator to either pay the assessment or contest the assessment within 30 calendar days by filing a petition for a contested case under Article 3 of Chapter 150B of the General Statutes. If a violator does not pay a civil penalty assessed by the Commissioner within 30 calendar days after it is due, the Commissioner shall request that the Attorney General institute a civil action to recover the amount of the assessment. The civil action may be brought in the superior court of any county where the violation occurred. A civil action must be filed within one year of the date the assessment was due. An assessment that is not contested is due when the violator is served with a notice of assessment. An assessment that is contested is due at the conclusion of the administrative and judicial review of the assessment.
3. In determining the amount of the penalty, the Commissioner shall consider the degree and extent of harm caused by the violation, the cost of rectifying the damage, the amount of money the violator saved by noncompliance, whether the violation was committed willfully, the prior record of the violator in complying or failing to comply with this Article, and the action of the person to remedy the violation.
4. The clear proceeds of civil penalties collected by the Commissioner under this subsection shall be remitted to the Civil Penalty and Forfeiture Fund in accordance with G.S. 115C-457.2.

History

(2013-206, s. 1; 2014-115, s. 13.)

Editor's Note. - Subdivisions (1) through (3), as enacted by Session Laws 2013-206, s. 1, were redesignated as subsections (b) through (d) and the subsection (a) designation was added at the direction of the Revisor of Statutes.

Effect of Amendments. - Session Laws 2014-115, s. 13, effective August 11, 2014, substituted "section" for "subsection" at the end of the first sentence of subsection (a).

§ 143-152. Injury to water supply misdemeanor.

If any person shall in any way intentionally or maliciously damage or obstruct any waterline of any public institution, or in any way contaminate or render the water impure or injurious, he shall be guilty of a Class 1 misdemeanor.

History

(1893, c. 63, s. 3; Rev., s. 3458; C.S., s. 7526; 1993, c. 539, s. 1014; 1994, Ex. Sess., c. 24, s. 14(c).)

§ 143-153. Keeping swine near State institutions; penalty.

On the petition of a majority of the legal voters living within a radius of one quarter of a mile of the administrative building of any State educational or charitable institution, it shall be unlawful for any person to keep swine or swine pens within such radius of one quarter of a mile. Any person violating this section shall be guilty of a Class 3 misdemeanor and shall be subject to only a fine of not less than ten dollars ($10.00) nor more than fifty dollars ($50.00).

History

(1909, c. 706; C.S., s. 7527; 1993, c. 539, s. 1015; 1994, Ex. Sess., c. 14, s. 62; c. 24, s. 14(c).)

Opinions of Attorney General

This section does not protect any church or other non-governmental organization. See opinion of Attorney General to The Honorable Cary Allred, The North Carolina General Assembly, 2001 N.C. AG LEXIS 14 (6/12/2001).

The statute does not apply to protect local public schools. See opinion of Attorney General to The Honorable Cary Allred, The North Carolina General Assembly, 2001 N.C. AG LEXIS 14 (6/12/2001).

§ 143-154. Expenditures for departments and institutions; accounting and warrants.

All expenditures of any character allowed by the General Assembly in making appropriations and not covered in the appropriations named shall be charged against the department or institution for which the expense is incurred, and the warrant shall be made to show clearly for what purpose the expenditure is made. The warrant shall be charged against the department or institution, thereby showing the total amount expended for the maintenance and expenses of such department or institution.

History

(1917, c. 289; C.S., s. 7528; 1983, c. 913, s. 35.)

§ 143-155: Repealed by Session Laws 1983, c. 913, s. 36.

§ 143-156. Certain institutions to report to Governor and General Assembly.

It shall be the duty of the boards of directors, managers, or trustees of the several State institutions for the insane, or the several institutions for the deaf, dumb, and blind, and of the State Prison to submit their respective reports to the Governor, to be transmitted by him with his message to the General Assembly.

History

(1883, c. 60, ss. 2, 4; Rev., s. 5373; C.S., s. 7530.)

§ 143-157. Reports of departments and institutions; investigations and audits.

All State departments and State institutions shall make reports to the Governor from time to time as may be required by him, and the Governor is empowered to have all departments of the State government and State institutions examined and audited from time to time, and shall employ such experts to make audits and examinations and to analyze the reports of such institutions and departments as he may deem to be necessary.

History

(1917, c. 58, s. 7; C.S., s. 7531.)

§ 143-157.1. Reports on gender-proportionate appointments to certain public bodies.

1. Appointments. - In appointing members to public bodies set forth in subsections (b) and (d) of this section, the appointing authority should select, from among the most qualified persons, those persons whose appointment would promote membership on the body that accurately reflects the proportion that each gender represents in the population of the State as a whole or, in the case of a local body, in the population of the area represented by the body, as determined pursuant to the most recent federal decennial census, unless the law regulating the appointment requires otherwise. If there are multiple appointing authorities for the body, they may consult with each other to accomplish the purposes of this section.
2. Reports by State Boards. - By September 1 of each year, every board designated as a nonadvisory board by the State Ethics Commission under Chapter 138A of the General Statutes shall submit a report to the Secretary of State which discloses the following by appointing authority:
   1. The number of appointments made during the preceding year.
   2. The number of appointments of each gender made, expressed both in numerical terms and as a percentage of the total membership of the body.
3. Retention of Applications. - Each appointing authority shall designate a person responsible for retaining all applications for appointment, who shall ensure that information related to each applicant's gender and qualifications is available for public inspection during reasonable hours. Nothing in this section requires disclosure of an applicant's identity or of any other information made confidential by law.
4. Use of Prescribed Form. - The Secretary of State shall prescribe the form to be used for submitting reports required under subsections (b) and (d) of this section and shall accept reports in an electronic format to be instituted by the Secretary of State. From these reports, the Secretary of State shall generate an annual composite report that shall be published by December 1. Copies of the report shall be submitted to the Governor, the Speaker of the House of Representatives, and the President Pro Tempore of the Senate.
5. Repealed by Session Laws 2019-167, s. 1, effective July 26, 2019.
6. Reporting by Local Units of Government. - By September 1 of each year and with regard to each local board listed in this subsection, the information required by subsection (b) of this section shall be submitted on behalf of the appointing authority to the Secretary of State by the clerk of that appointing authority. Appointments to each of the following local boards, whether established by State law or local decision, or appointments to those local boards having equivalent functions, however named or denominated, must be reported:
   1. City or county ABC board, or local board created pursuant to G.S. 18B-703.
   2. Adult Care Home Community Advisory Committee.
   3. Airport Authority.
   4. Community Child Protection Team or a Child Fatality Prevention Team.
   5. Civil Service Board or similarly named board established by local act.
   6. Community Relations Committee.
   7. Council of Governments.
   8. Criminal Justice Partnership Task Force.
   9. Emergency Planning Committee.
   10. Board of Equalization and Review.
   11. Local Board of Health.
   12. Hospital Authority.
   13. Housing Authority.
   14. Human Relations Commission.
   15. County Industrial Facilities and Pollution Control Financing Authority.
   16. Juvenile Crime Prevention Council.
   17. Library Board of Trustees.
   18. Repealed by Session Laws 2019-167, s. 1, effective July 26, 2019.
   19. Economic development commission.
   20. Area mental health, developmental disabilities, and substance abuse board.
   21. Adult care home community advisory committee.
   22. Local partnership for children.
   23. Planning Board.
   24. Recreation Board.
   25. County board of social services.
   26. A public transportation authority created pursuant to Article 25 of Chapter 160A of the General Statutes, a regional public transportation authority created pursuant to Article 26 of Chapter 160A of the General Statutes, or a regional transportation authority created pursuant to Article 27 of Chapter 160A of the General Statutes.
   27. Local tourism development authority.
   28. Water and sewer authority.
   29. Workforce Development Board.
   30. Zoning Board of Adjustment.
   31. Planning and Zoning Board.
   32. Board of Adjustment.
   33. Historic Preservation Commission.
   34. Redevelopment Commission.
   35. City board of education (if appointive).
   36. Metropolitan Planning Organization.
   37. Rural Planning Organization.

History

(1999, c. 457, s. 1(b), (c); 2007-167, s. 1; 2018-142, s. 19; 2019-167, s. 1.)

Editor's Note. - Session Laws 1999-457, s. 1(b), and (c), were codified as this section at the direction of the Revisor of Statutes.

Session Laws 1999-457, s. 1.(a) provides that it is the intent of the General Assembly to recognize the importance of balance in the appointment of both genders to membership on statutorily created decision-making and regulatory boards, commissions, councils, and committees, and to promote that balance through the provisions of this section and further that the General Assembly recognizes that statutorily created decision-making and regulatory boards, commissions, councils, and committees play a vital role in shaping public policy for North Carolina, and the selection of well-qualified candidates is the paramount obligation of the appointing authority. Section 1.(e) provides that while gender equity is its purpose, the act does not direct, mandate or require such.

Session Laws 1999-457, s. 1.(d) provides: "This act applies to appointments and reappointments made after the effective date of this act [August 13, 1999]. Nothing in this act shall be construed to require an appointing authority to make an appointment or remove an appointee on the basis of gender."

At the direction of the Revisor of Statutes, the "State Ethics Commission under Chapter 138A of the General Statutes" was substituted for "State Ethics Commission under Subchapter II of Chapter 163A" in subsection (b) to conform to Session Laws 2018-146.

Effect of Amendments. - Session Laws 2007-167, s. 1, effective July 4, 2007, rewrote subsections (a) and (b), and added subsections (c) and (d).

Session Laws 2018-142, s. 19, effective December 15, 2018, in subsection (a), deleted "or" following "area represented by the", and substituted "the" for "such" preceding "appointment requires"; in subsection (b), inserted "of this section" following "described in subsection (a)."

Session Laws 2019-167, s. 1, effective July 26, 2019, rewrote this section.

§ 143-158. Special investigations.

At any time, upon complaint made to him or upon his own motion, the Governor may appoint a special commission to investigate any State department or State institution, which commission shall have power to subpoena witnesses, require the production of books and papers, and to do all things necessary to a full and thorough investigation, and shall submit its findings to the Governor. The members of such special commission shall, while engaged in the performance of their duties, receive their actual expenses and a per diem of four dollars ($4.00).

History

(1917, c. 58, s. 8; C.S., s. 7532.)

§ 143-159. Governor given authority to direct investigation.

The Governor is hereby authorized and empowered to call upon and direct the Attorney General to investigate the management of or condition within any department, agency, bureau, division or institution of the State, or any other matters pertaining to the administration of the Executive Department, when the Governor shall determine that such an investigation shall be necessary.

History

(1927, c. 234, s. 1.)

§ 143-160. Conduct of investigation.

Whenever called upon and requested by the Governor as set out in G.S. 143-159, the Attorney General shall conduct such investigation at such reasonable time and place as may be determined by him. He shall have power to issue subpoenas, administer oaths, compel the attendance of witnesses and the production of papers necessary and material in such investigation. All subpoenas issued by him shall be served by the sheriff or other officer of any county to which they may be directed. Parties interested in such investigation may appear at the hearing and be represented by counsel, who shall have the right to examine or cross-examine witnesses.

All persons subpoenaed to attend any hearing before the Attorney General shall, for a failure so to attend and testify, be subject to the same penalties as prescribed by law for such failure in the superior court.

History

(1927, c. 234, s. 2.)

§ 143-161. Stenographic record of proceedings.

A stenographic record of the proceedings had in such investigation shall be taken and copy thereof forwarded by the Attorney General to the Governor with his report.

History

(1927, c. 234, s. 3.)

§ 143-162: Repealed by Session Laws 1955, c. 984.

§ 143-162.1. First menu operator access.

1. The General Assembly finds that:
   1. Some telephone systems operated by State government agencies require callers to proceed through several menus to finally reach an individual extension, an arrangement that can be intimidating to the caller;
   2. Many State telephone systems also make it difficult to reach an attendant or operator at the agency; and
   3. While automated telephone systems and voice mail are intended to improve the efficiency of government, the first duty of government is to serve the people, and efficiency should not impede the average citizen in attempting to contact a State agency for service or information.
2. State agency telephone systems routing calls to multiple extensions shall be reprogrammed by September 1, 1997, to minimize the number of menus that a caller must go through to reach the desired extension, and to allow the caller to reach an attendant or operator after accessing not more than two menus from the first menu when calling during normal business hours. As used in this section, the term "menu" refers to the first point in the call at which the caller is asked to choose from two or more options, regardless of whether that choice is referred to as a menu, router, or other term within the telephone industry itself.
3. All State agencies shall include the agency's telephone number or numbers in a prominent place on all agency letterhead.
4. The provisions of subsection (b) of this section shall not apply to any "511" traveler information system operated by the Department of Transportation.
5. The provisions of subsection (b) of this section shall not apply to any call center operated under the Department of State Treasurer.

This act shall be implemented by State agencies with existing personnel at no additional cost to the State.

History

(1997-351, ss. 1, 2; 1999-429, ss. 1, 2; 2003-184, s. 4; 2020-29, s. 3.)

Editor's Note. - Session Laws 1997-351, s. 1 and s. 2, enacted as uncodified sections, have been codified as this section at the direction of the Revisor of Statutes.

Session Laws 1999-429, s. 2, has been codified as subsection (c) at the direction of the Revisor of Statutes.

Effect of Amendments. - Session Laws 2020-29, s. 3, effective June 19, 2020, added subsection (e).

§ 143-162.2. Use of public property by production companies.

If a State agency makes real property available to a production company for a production, it shall not charge any fee other than reimbursement of actual costs incurred and actual revenues lost by the agency. As used in this section, the term "production company" has the meaning provided in G.S. 105-164.3. This section does not require a State agency to make real property available to a production company for a production.

History

(2000-153, s. 3.)

§ 143-162.5. Use of mobile electronic devices.

1. Every executive branch agency within State government shall develop a policy to limit the issuance and use of mobile electronic devices to the minimum required to carry out the agency's mission. As used herein, mobile communication device includes goods provided by commercial mobile radio service providers and services for mobile telecommunications governed by Title 47 of the Code of Federal Regulations. By September 1, 2011, each agency shall provide a copy of its policy to the Chairs of the Appropriations Committee and the Appropriations Subcommittee on General Government of the House of Representatives, the Chairs of the Appropriations•ase Budget Committee and the Appropriations Committee on General Government and Information Technology of the Senate, the Chairs of the Joint Legislative Oversight Committee on Information Technology, the Fiscal Research Division, and the Office of State Budget and Management.
   1. Any changes to agency policies on the use of mobile devices.
   2. The number and types of new devices issued since the last report.
   3. The total number of mobile devices issued by the agency.
   4. The total cost of mobile devices issued by the agency.
   5. The number of each type of mobile device issued, with the total cost for each type.
2. This section does not apply to the legislative branch or the judicial branch of State government.

State-issued mobile electronic devices shall be used only for State business. Agencies shall limit the issuance of cell phones, smart phones, and any other mobile electronic devices to employees for whom access to a mobile electronic device is a critical requirement for job performance. The device issued and the plan selected shall be the minimum required to support the employees' work requirements. This shall include considering the use of pagers in lieu of a more sophisticated device. The requirement for each mobile electronic device issued shall be documented in a written justification that shall be maintained by the agency and reviewed annually. All State agency heads, in consultation with the Office of Information Technology Services and the Office of State Budget and Management, shall document and review all authorized cell phone, smart phone, and other mobile electronic communications device procurement, and related phone, data, Internet, and other usage plans for and by their employees. Agencies shall conduct periodic audits of mobile device usage to ensure that State employees and contractors are complying with agency policies and State requirements for their use.

Beginning October 1, 2012, each agency shall report annually to the Chairs of the House of Representatives Committee on Appropriations and the House of Representatives Subcommittee on General Government, the Chairs of the Senate Committee on Appropriations and the Senate Appropriations Committee on General Government and Information Technology, the Joint Legislative Oversight Committee on Information Technology, the Fiscal Research Division, and the Office of State Budget and Management on the following:

History

(2011-145, s. 6A.14(a), (b); 2011-391, s. 11(f); 2012-142, s. 6A.7; 2015-286, s. 3.1.)

Editor's Note. - Session Laws 2011-145, s. 6A.14(a), (b), as amended by Session Laws 2011-391, s. 11(f), Session Laws 2012-142, s. 6A.7, and Session Laws 2015-286, s. 3.1, was codified as this section in 2020 at the direction of the Revisor of Statutes.

The last paragraph of Session Laws 2011-145, s. 6A.14(a), as amended by Session Laws 2011-391, s. 11(f), and Session Laws 2012-142, s. 6A.7, was also codified as G.S. 120-236 at the direction of the Revisor of Statutes. However, G.S. 120-236 was repealed by Session Laws 2014-100, s. 7.12(c), effective July 1, 2014.

§ 143-163. State agencies may issue bonds to finance certain public undertakings.

The several departments, institutions, agencies and commissions of the State of North Carolina, acting at the suggestion of the Governor of North Carolina, with the approval of the Council of State, are hereby authorized to issue bonds of the several departments, agencies or commissions of the State, in such sum or sums, not to exceed in the aggregate two million dollars ($2,000,000), at such time or times, in such denominations as may be determined, and at such rate of interest as may be most advantageous to the several departments, institutions, agencies and commissions of the State, the said bonds to run for a period not exceeding 30 years from date, which bonds may be sold and delivered as other like bonds of the State of North Carolina: Provided, however, that the credit of the State of North Carolina, or any of its departments, institutions, agencies or commissions, shall not be pledged further in the payment of such bonds, except with respect to the rentals, profits and proceeds received in connection with the undertaking, for which said bonds are issued, and said bonds and interest so issued shall be payable solely out of the receipts from the undertaking for which they were issued, without further obligation on the part of the State of North Carolina, or any of its departments, institutions, agencies or commissions, provided that no State department or institution issuing any of said bonds shall be allowed to pledge any of its appropriations received from the State as security for these bonds; provided, further, that no State department, institution, agency or commission of the State shall make application for or issue any bonds, as provided in this section, after June 1, 1941.

History

(1935, c. 479, s. 1; Ex. Sess. 1936, c. 2, s. 1; 1937, c. 323; 1939, c. 391.)

§ 143-164. Acceptance of federal loans and grants permitted.

The State of North Carolina, and its several departments, institutions, agencies and commissions, are hereby authorized to accept and receive loans, grants, and other assistance from the United States government, departments and/or agencies thereof, for its use, and to receive like financial and other aid from other agencies in carrying out any undertaking which has been authorized by the Governor of North Carolina, with the approval of the Council of State.

History

(1935, c. 479, s. 2.)

§ 143-165. Approval by Governor and Council of State necessary; covenants in resolutions authorizing bonds.

The several departments, institutions, agencies and commissions of the State of North Carolina, before issuing any revenue bonds as herein provided for any undertaking, shall first receive the approval of the undertaking from the Governor of North Carolina, which action shall be approved by the Council of State before such undertaking shall be entered into and revenue bonds issued in payment therefor in whole or in part.

Any resolution or resolutions heretofore or hereafter adopted authorizing the issuance of bonds under this Article may contain covenants which shall have the force of contract so long as any of said bonds and interest thereon remain outstanding and unpaid as to

1. The use and disposition of revenue of the undertaking for which the said bonds are to be issued,
2. The pledging of all the gross receipts or any part thereof derived from the operation of the undertaking to the payment of the principal and interest of said bonds including reserves therefor,
3. The operation and maintenance of such undertaking,
4. The insurance to be carried thereon and the use and disposition of the insurance moneys,
5. The fixing and collection of rates, fees and charges for the services, facilities and commodities furnished by such undertaking sufficient to pay said bonds and interest as the same shall become due, and for the creation and maintenance of reasonable reserve therefor,
6. Provisions that the undertaking shall not be conveyed, leased or mortgaged so long as any of the bonds and interest thereon remain outstanding and unpaid.

Provided, however, that the credit of the State of North Carolina or any of its departments, institutions, agencies or commissions shall not be pledged to the payment of such bonds except with respect to the rentals, profits and proceeds received in connection with the undertaking for which the said bonds are issued, and that none of the appropriations received from the State shall be pledged as security for said bonds.

History

(1935, c. 479, s. 3; Ex. Sess. 1936, c. 2, s. 2.)

§§ 143-166 through 143-166.04: Repealed by Session Laws 1985, c. 479, s. 196(t).

Cross References. - As to the law-enforcement officers', firemen's, rescue squad workers' and Civil Air Patrol members' Death Benefits Act, see G.S. 143-166.1 et seq.

As to retirement benefits for local governmental law-enforcement officers, see now G.S. 143-166.50.

As to separate insurance benefits plan for state and local governmental law-enforcement officers, see now G.S. 143-166.60.

As to transfers of assets of Law-Enforcement Officers' Retirement System to other retirement systems, see G.S. 143-166.70.

Editor's Note. - Session Laws 1971, c. 837, contained provisions as to the transfer of wildlife protectors from the Teachers' and State Employees' Retirement System to the Law-Enforcement Officers' Benefit and Retirement Fund.

Session Laws 1973, c. 572, as amended by Session Laws 1973, c. 874, contained provisions as to the transfer of law-enforcement officers who were members of the Teachers' and State Employees' Retirement System or the Local Governmental Employees' Retirement System to the Law-Enforcement Officers' Benefit and Retirement Fund.

Section 8 of Session Laws 1985, c. 751, which amended repealed G.S. 143-166, provided: "In order to fund the provisions of this act, the Board of Trustees of the Local Governmental Employees' Retirement System, and Law Enforcement Officers' Retirement System with the advice of its consulting actuary, shall apply any unencumbered actuarial gain remaining after application of actuarial gains to any cost-of-living increase granted to retired members effective July 1, 1985, and shall adjust the normal contribution rate of employers, without increase in the total employers' contribution rates and without changes in the amortization periods for liquidation of unfunded accrued liabilities of employers participating in the Retirement System."

§ 143-166.1. Purpose.

In consideration of hazardous public service rendered to the people of this State, there is hereby provided a system of benefits for dependents of law-enforcement officers, firefighters, rescue squad workers, and senior Civil Air Patrol members killed in the discharge of their official duties, and for dependents of noncustodial employees of the Division of Adult Correction and Juvenile Justice of the Department of Public Safety killed by an individual or individuals in the custody of the Division of Adult Correction and Juvenile Justice of the Department of Public Safety.

History

(1959, c. 1323, s. 1; 1965, c. 937; 1973, c. 634, s. 2; 1975, c. 284, s. 6; 1977, c. 797; 1983, c. 761, s. 236; 2018-5, s. 35.29(a).)

Editor's Note. - Session Laws 2018-5, s. 35.29(a), effective retroactively to April 1, 2017, and applicable to qualifying deaths occurring on or after that date, rewrote the Article heading, which formerly read: "Law-Enforcement Officers', Firemen's, Rescue Squad Workers' and Civil Air Patrol Members' Death Benefits Act."

Session Laws 2018-5, s. 35.29(d), made the amendment of this section by Session Laws 2018-5, s. 35.29(a), effective retroactively to April 1, 2017, and applicable to qualifying deaths occurring on or after that date.

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. 39.4, provides: "Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2018-2019 fiscal year, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2018-2019 fiscal year."

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

Effect of Amendments. - Session Laws 2018-5, s. 35.29(a), substituted "firefighters, rescue squad workers," for "firemen, rescue squad workers" and added "and for dependents of noncustodial employees of the Division of Adult Correction and Juvenile Justice of the Department of Public Safety killed by an individual or individuals in the custody of the Division of Adult Correction and Juvenile Justice of the Department of Public Safety" at the end. For effective date and applicability, see editor's note.

§ 143-166.2. Definitions.

The following definitions apply in this Article:

1. Covered person. - This term shall apply to all of the following individuals:
   1. Firefighters.
   2. Law enforcement officers.
   3. Noncustodial employees of the Division of Adult Correction and Juvenile Justice of the Department of Public Safety.
   4. Rescue squad workers.
   5. Senior Civil Air Patrol members.
2. Custodial employee. - An employee of the Division of Adult Correction and Juvenile Justice of the Department of Public Safety who is a detention officer or a correctional officer or who otherwise has direct care and control over individuals in the custody of the Division of Adult Correction and Juvenile Justice of the Department of Public Safety.
3. Dependent child. - Any unmarried child of the deceased covered person, whether natural, adopted, posthumously born or whether a child born out of wedlock as entitled to inherit under the Intestate Succession Act, who is under 18 years of age and dependent upon and receiving his or her chief support from the covered person at the time of the covered person's death; provided, however, that if a dependent child is entitled to receive benefits at the time of the covered person's death as hereinafter provided, the child shall continue to be eligible to receive such benefits regardless of his or her age thereafter. This term also includes any child over 18 years of age who is physically or mentally incapable of earning a living. Any child over 18 years of age who was enrolled as a full-time student at the time of the covered person's death shall, so long as the child remains a full-time student as defined in the Social Security Act, be regarded as a dependent child and eligible to receive benefits under the provisions of this Article.
4. Dependent parent. - The parent of the deceased covered person, whether natural or adoptive, who was dependent upon and receiving his or her total and entire support from the covered person at the time of the injury that resulted in that covered person's death.
5. Firefighter. - This term shall apply to all of the following individuals:
   1. Firefighters as defined in G.S. 58-84-5.
   2. Eligible firefighters as defined in G.S. 58-86-2, notwithstanding any age requirements set out in Article 86 of Chapter 58 of the General Statutes.
   3. Full-time, permanent part-time, and temporary employees of the North Carolina Forest Service of the Department of Agriculture and Consumer Services during the time they are actively engaged in firefighting activities or emergency response activities pursuant to G.S. 166A-19.77.
   4. Full-time employees of the North Carolina Department of Insurance during the time they are actively engaged in firefighting activities and during the time they are training firefighters.
   5. County fire marshals when engaged in the performance of their county duties.
   6. All otherwise eligible individuals who, while actively engaged as firefighters, are acting in the capacity of a fire instructor outside their own department or squad.
6. Killed in the line of duty. - This term shall apply to all of the following deaths:
   1. The death of any law-enforcement officer, firefighter, or rescue squad worker who is killed or dies as a result of bodily injuries sustained or extreme exercise or extreme activity experienced in the course and scope of his or her official duties while in the discharge of his or her official duty or duties.
   2. The death of a senior Civil Air Patrol member who is killed or dies as a result of bodily injuries sustained or extreme exercise or extreme activity experienced in the course and scope of his or her official duties while engaged in a State requested and approved mission pursuant to Article 13 of Chapter 143B of the General Statutes.
   3. The death of a noncustodial employee who, while performing his or her official duties, is killed in a manner reasonably determined by the Industrial Commission to be directly caused by an individual or individuals in the custody of the Division of Adult Correction and Juvenile Justice of the Department of Public Safety.
   4. When the death of a law enforcement officer, firefighter, rescue squad worker, or senior Civil Air Patrol member occurs as the direct and proximate result of a myocardial infarction suffered while on duty or within 24 hours after participating in a training exercise or responding to an emergency situation, the law enforcement officer, firefighter, rescue squad worker, or senior Civil Air Patrol member is presumed to have been killed in the line of duty.
   5. When the death of a firefighter occurs as a direct and proximate result of any of the following cancers that are occupationally related to firefighting, that firefighter is presumed to have been killed in the line of duty:
      1. Mesothelioma.
      2. Testicular cancer.
      3. Intestinal cancer.
      4. Esophageal cancer.
7. Law enforcement officer or officer. - This term shall apply to all of the following individuals:
   1. Sheriffs and all law-enforcement officers employed full-time, permanent part-time, or temporarily by a sheriff, the State of North Carolina, or any county or municipality thereof, whether paid or unpaid.
   2. Full-time custodial employees and probation and parole officers of the Division of Adult Correction and Juvenile Justice of the Department of Public Safety.
   3. Full-time institutional and full-time, permanent part-time, and temporary detention employees of the Juvenile Justice Section of the Division of Adult Correction and Juvenile Justice of the Department of Public Safety.
   4. Full-time, permanent part-time, and temporary detention officers employed by any sheriff, county or municipality, whether paid or unpaid.
8. (For effective date and applicability, see editor's note) Murdered in the line of duty. - The death of a covered person who was killed in the line of duty in a manner reasonably determined by the Industrial Commission to be directly caused by the intentional harmful act of another person.
9. Noncustodial employee. - An employee of the Division of Adult Correction and Juvenile Justice of the Department of Public Safety who is not a custodial employee.
10. Official duties. - All duties to which an individual is assigned as part of the individual's job function. This term shall also include those duties performed by an individual while (i) en route to, engaged in, or returning from training; (ii) in the course of responding to, engaged in, or returning from a call by the department of which the individual is a member; or (iii) in the course of responding to, engaged in, or returning from a call for assistance from any department or organization within the State of North Carolina or within a service area contiguous to the borders of the State of North Carolina when served or aided by a department from within the State of North Carolina. While within the State of North Carolina, any covered person who renders service or assistance, of his or her own volition, at the scene of an emergency, is performing his or her official duties when both of the following apply:
    1. Reasonably apparent circumstances require prompt decisions and actions to protect persons and property.
    2. The necessity of immediate action is so reasonably apparent that any delay in acting would seriously worsen the property damage or endanger any individual's life.
11. Rescue squad worker. - This term shall apply to all of the following individuals:
    1. Individuals who are dedicated to the purpose of alleviating human suffering and assisting anyone who is in difficulty or who is injured or becomes suddenly ill by providing the proper and efficient care or emergency medical services. In addition, these individuals must belong to an organized rescue squad that is eligible for membership in the North Carolina Association of Rescue and Emergency Medical Services, Inc., and must have attended a minimum of 36 hours of training in the last calendar year. Each rescue squad belonging to the North Carolina Association of Rescue and Emergency Medical Services, Inc., must file a roster of those members meeting the above requirements with the State Treasurer on or about January 31 of each year, and this roster must be certified to by the secretary of said association.
    2. Members of an ambulance service certified by the Department of Health and Human Services pursuant to Article 7 of Chapter 131E of the General Statutes. The Department of Health and Human Services shall furnish a list of ambulance service members to the State Treasurer on or about January 31 of each year.
    3. County emergency services coordinators when engaged in the performance of their county duties.
    4. Full-time employees of the North Carolina Department of Insurance during the time they are training rescue squad workers and during the time they are engaged in activities as members of the State Emergency Response Team when the State Emergency Response Team has been activated.
    5. All otherwise eligible individuals who, while actively engaged as rescue squad workers, are acting in the capacity of a rescue instructor outside their own department or squad.
12. Senior Civil Air Patrol members. - Senior members of the North Carolina Wing-Civil Air Patrol who are 18 years of age or older and currently certified pursuant to G.S. 143B-1031.
13. Spouse. - The wife or husband of the deceased covered person who survives him or her and who was residing with the covered person at the time of and during the six months next preceding the date of injury to the covered person that resulted in his or her death and who also resided with the covered person from that date of injury up to and at the time of his or her death and provided, however, the six-month residency requirement shall not apply where the marriage occurred during this six-month period or where the covered person was absent during this six-month period due to service in the Armed Forces of the United States.

History

(1959, c. 1323, s. 1; 1965, c. 937; 1969, c. 1025; 1973, c. 634, s. 2; c. 955, ss. 1, 2; 1975, c. 19, s. 49; c. 284, s. 7; 1977, c. 1048; 1979, c. 516, ss. 2, 3; c. 869; 1981, c. 944, s. 1; 1983, c. 761, s. 237; 1987, c. 812; 1987 (Reg. Sess., 1988), c. 1050, s. 1; 1989, c. 727, s. 218(97); 1989 (Reg. Sess., 1990), c. 1024, s. 32; 1991 (Reg. Sess., 1992), c. 833, s. 5; 1997-443, ss. 11A.118(a), 11A.119(a); 2000-137, s. 4(y); 2003-284, s. 30.18A(b); 2004-124, s. 31.18C(a); 2005-276, s. 29.30C; 2005-376, s. 1; 2008-163, s. 1; 2011-145, ss. 13.25(ss), 19.1(h), ( l ); 2011-183, s. 104; 2012-83, s. 46; 2013-155, s. 20; 2013-198, s. 27; 2013-288, s. 10; 2015-88, s. 8; 2016-94, s. 22.1(a); 2017-57, s. 21.1; 2017-186, s. 2(bbbbbb); 2018-5, s. 35.29(a); 2019-228, s. 2(a).)

Editor's Note. - Subsection (d), as amended by Session Laws 2004-124, s. 31.18C(c), effective July 20, 2004, is applicable to persons killed in the line of duty on or after July 20, 2004, and the subsequent amendment by Session Laws 2005-376, s. 1, effective November 1, 2004, is applicable to all deaths occurring on or after November 1, 2004.

Session Laws 2008-163, s. 2, provides: "This act [s. 1 of which amended subsection (d)] becomes effective June 1, 2008, and applies to workers' compensation claims arising from injuries occurring on or after that date and to death benefits awarded on or after that date under Article 12A of Chapter 143 of the General Statutes."

Session Laws 2016-94, s. 22.1(b), made the amendment of subsection (c) by Session Laws 2016-94, s. 22.1(a), applicable to deaths occurring on or after October 1, 2016.

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. 39.7, is a severability clause.

Session Laws 2018-5, s. 35.29(d), made the rewriting of this section by Session Laws 2018-5, s. 35.29(a), effective retroactively to April 1, 2017, and applicable to qualifying deaths occurring on or after that date.

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.

Session Laws 2019-228, s. 2(c), made subdivision (7a), as added by Session Laws 2019-228, s. 2(a), effective upon appropriation by the General Assembly of funds for the implementation of this section and applicable to qualifying deaths occurring on or after July 1, 2016. Such funds were appropriated by Session Laws 2020-86, ss. 1, 2, which provide:

"SECTION 1. There is transferred from the Statewide Misdemeanant Confinement Fund (Budget Code: 24550; Fund Code: 2325) to the Department of State Treasurer (Budget Code: 13412; Fund Code: 1432) the sum of one million two hundred thousand dollars ($1,200,000) in nonrecurring funds for the 2020-2021 fiscal year.

"SECTION 2. The funds transferred in Section 1 of this act are appropriated in nonrecurring funds for the 2020-2021 fiscal year to pay benefits provided under Conner's Law, S.L. 2019-228."

Effect of Amendments. - Session Laws 2005-276, s. 29.30C, effective July 1, 2005, substituted "law enforcement officer, fireman, rescue squad worker, or senior Civil Air Patrol member" for "fireman" twice in the last sentence of subsection (c).

Session Laws 2011-145, s. 13.25(ss), effective July 1, 2011, in the second sentence of subsection (d), deleted "North Carolina" preceding "Division of Forest Resources" and substituted "Department of Agriculture and Consumer Services" for "Department of Environment and Natural Resources."

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 2011-145, s. 19.1(l), effective January 1, 2012, substituted "Division of Juvenile Justice of the Department of Public Safety" for "Department of Juvenile Justice and Delinquency Prevention" in subsection (d).

Session Laws 2011-183, s. 104, effective June 20, 2011, substituted "Armed Forces of the United States" for "armed forces of this country" at the end of subsection (e).

Session Laws 2012-83, s. 46, effective June 26, 2012, in subsection (d), in the first sentence deleted "North Carolina" preceding "Division of Adult Correction of the Department of Public Safety," and near the end substituted "G.S. 143B-1031" for "G.S. 143B-491(a)."

Session Laws 2013-155, s. 20, effective July 1, 2013, in subsection (d), substituted "North Carolina Forest Service of the" for "Division of Forest Resources" and "or engaged in emergency response activities pursuant to G.S. 166A-19.77" for "G.S. 155A-19.77" and made minor punctuation changes throughout.

Session Laws 2013-198, s. 27, effective June 26, 2013, substituted "a child born out of wedlock" for "an illegitimate child" in subsection (a); and substituted "Article 13 of Chapter 143B" for "Article 11 of Chapter 143B [Article 13 of Chapter 143B]."

Session Laws 2013-288, s. 10, effective July 1, 2013, in subsection (d), substituted "Article 86 of Chapter 58 of the General Statutes, notwithstanding any age requirements set out in that Article" for "G.S. 58-86-25," in the second sentence, substituted "and Emergency Medical Services" for "Squads" in the third and fourth sentences, and substituted "January 31" for "January 1" in the fourth and sixth sentences, and deleted "and meetings" following "36 hours of training" in the third sentence.

Session Laws 2015-88, s. 8, effective July 1, 2015, substituted "firefighter" for "fireman" throughout the section; inserted "firefighter or firemen as defined in G.S. 58-84-5(3a), or" following "mean both" in the second sentence in subsection (d); in subsection (e), substituted "his or her" for "his" twice, and deleted " who remains unmarried during the time benefits are forthcoming" following "and at the time of his or her death and."

Session Laws 2016-94, s. 22.1(a), effective October 1, 2016, added the last sentence in subsection (c); and added subdivisions (c)(1) through (c)(3). See editor's note for applicability.

Session Laws 2017-57, s. 21.1, effective July 1, 2017, added subdivision (c)(4).

Session Laws 2017-186, s. 2(bbbbbb), effective December 1, 2017, in the first sentence of subsection (d), inserted "and Juvenile Justice" and substituted "Juvenile Justice Section of the Division of Adult Correction and Juvenile Justice" for "Division of Juvenile Justice."

Session Laws 2018-5, s. 35.29(a), rewrote the section. For effective date and applicability, see editor's note.

Session Laws 2019-228, s. 2(a), added subdivision (7a). For effective date and applicability, see editor's note.

Legal Periodicals. - For casenote, "The Established Standard for Fathers Who Have Acknowledged Paternity and Who Are Seeking Custody of Their Illegitimate Child(ren): Rosero v. Blake, 357 N.C. 193 (2003)," see 26 N.C. Cent. L.J. 116 (2003).