NCD980602163_20001222_Warren County PCB Landfill_SERB C_Request for Alternative Contracting Method-OCR

PROJECT EVALUATION
. PROJECT DATA
N:.me and Address of Owner: Project Name and Location:
DENR -Waste Management Detoxification of Warren County PCB Landfill
Project Status: Owner's Representative: _ ~ JJ.J~,;oo 'f)a1:.,
EXEMPTION REQUEST
Category for Exemption: Date Request Received:
Unique technology Unusual complexity 04/03/2000
Method Requested: SBC Action:
Design/Build Approved -4/25/00
EVALUATION AND RECOMMENDATIONS
4. Please comment on the project management due to the method used.
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6. Would you requesVrecommend the same mefhod_ again? Wh¥, Why not? Under what condffions? ~ a,.e., ~
. . -~
,,,,
DESIGN-BUILD METHOD RECOMMENDATIONS
The design-build method is allowed for projects with unique technology and unusual complexity, however,
these projects still have to strictly confonn to a low-bid selection. Unique technology and unusual
complexity is usually a key phrase for sole source proposals while low-bid is the norm where there are a
significant number of firms that could do a job.
The low-bid selection process is the opposite of everything I have seen in the literature about design-build
contractor selection particularly for a unique technology or unusual complexity situation. The cost of these
types of projects are greatly influenced by the specific design and the ability or experience of the
contractors. With design-build for unique technology or unusual complexity it is advantageous to allow the
contractor to use some creativity to reduce cost while meeting performance requirements. But when you
have to select based on low-bid there is pressure to tie down as much as possible and reduce different
approaches to a problem because of the pressure to make sure everyone is bidding exactly on the same
thing. This puts more responsibility on the state.
Prequalification does help to weed out truly unqualified contractors. But you cannot ask for all the
information you might want because of the cost involved. My bidders indicated that they will be spending
in the neighborhood of $50,000 preparing the bid and would not start, even though prequalified, until after
they got the bid package in their hands. What concerns me is that when the bids are opened I will have a
contractor but won't know exactly what he plans to do because design is a part of the project but not a part
of the selection. I think a selection based on a project proposal and cost estimate with weighted criteria, as
recommended in the literature, would be better protection for the state's interests.
REMEDIATION PROJECTS SPECIFICALLY
The PCB Landfill Project may be an anomaly. But if you anticipate dealing with more environmental-type
projects it would be nice if DENR projects were allowed to fall under § 143-129.2 which acknowledges "the
highly complex and innovation nature of solid water management, the relatively limited availability of
existing and proven proprietary technology" and permits awarding "a contract on the basis of factors other
than cost alone".
James B. Hunt Jr., Governor
Katie G. Dorsett, Secretary
Mr. Dolan Simmons
HC SCHOOLS
r:,\; °)• t:;! · North Carolina
Capital Projects Coordinator
1605 MSC
~aleigh, NC 27699-1605
RE: DENR -N. C. ZOO/Ozone Upgrades@ Rocky Coast
DENR -Waste Management/Detox of Warren County PCB Landfill
Dear Mr. Simmons:
The State Building Commission recently requested that the State
Construction Office gather follow-up information on projects where an
alternative contracting method had been requested.
In an effort to evaluate the effectiveness of the exempted methods, the
State Construction Office has assembled the attached questionnaire.
The results of this questionnaire will be reported to the Commission
and may effect thei~ decision on future requests for exemptions.
Please have the project manager or other individual familiar with the
project fill out the questionnaire and return to:
State Construction Office
Attn: Steven Pellei
1307 .Mail Service Center
Raleigh, NC 27699-1307
Please complete the questionnaire and mail by December 1st , 2000, even
if the requested exemption was denied or withdrawn . Any questions may
be directed to Steven Pellei at [phone].
Mailing Address:
1307 Mail Service Center
Raleigh, NC 27699-1307
Sincerely,
~ ~ o. ~ l k~
Telephone: (919) 733,7962
Fax [phone]
State Courier #56-02-01
David 0. Bullock
Deputy Director
Contract Administration
. Location:
301 N. Wilmington St., Suite 450
Raleigh, NC 27601-2827
An Equal Opporcunicy/Affirmacive Action Employer
PROJECT EVALUATION
PROJECT DATA
N:;me and Address of Owner: Project Name and Location:
DENR -Waste Management Detoxification of Warren County PCB Landfill
ID Number: Project Status: I Owner's Representative:
EXEMPTION REQUEST
Category for Exemption: Date Request Received:
Unique technology Unusual complexity 04/03/2000
Method Requested: SBC Action:
Design/Build Approved -4/25/00
EVALUATION AND RECOMMENDATIONS
1. What was the goal of the exemption request? Was it achieved?
2. Please comment on any cost overuns or savings of the method used.
3. Please comment on any time overuns or savings of the method used.
4. Please comment on the project management due to the method used.
5. Please comment 'on any other advantages and/or disadvantages of the method used.
6. Would you request/recommend the same method again? Why, Why not? Under what conditions?
7. Any other recommendations?
(SBC-6125196) Date: April 3, 2000
FORM OF APPLICATION
AUTHORIZATION TO USE AN ALTERNATIVE CONTRACTING METHOD
I. Owner
1. Name of owner: State of North Carolina
2. Name of presiding chairperson of owner's governing body or name of department
and/or division head:_W~ill=ia=m:..:.=.L:...:. M=ey~e=-=-r ________________ _
a. Position/title: Division Director, DENR Division of Waste Management
b. Mailing address: 1646 Mail Service Center, Raleigh, NC 27699-1646
c. Telephone: [phone] ext 202
3. Name of Person completing Application (if different than above): Patricia M. Backus.PE
a. Positio~/title: PCB Landfill Project Manager
b. Mailing address: 1646 Mail Service Center, Raleigh, NC 27699-1646
c. Telephone: [phone] ext 308
II. Project
1. Name of project: Detoxification of Warren County PCB Landfill
2. Location of project: Warren County. NC
3. Description of project: Detoxify PCB-contaminated soil on site using the Base
Catalyzed Decomposition (BCD} process.
4. Description of work to be performed on project: (1) Site preparation and equipment
setup: (2) Excavation and treatment of 40,000 cubic yards of contaminated soil: and (3)
Decontamination of equipment, removal and restoration of site.
5. Project budget:. _____ $=8"-'-,0;:;..;:0:;..;:;0......,,0:;..;:;0....;;;.0 _________________ _
6. Budget source or ID No.:Budget code 19044 GF Reserve-ENR Landfill {see
Attachments 1 & 2)
7. Date that the project was authorized by the owner:.-=O-=ct=o=b-=e:....:r 2=9=•....:..;19=9=8"--------
8. Proposed date for letting of bids:._;M=ay~20=0=0"----------------
9. Proposed date for the project to begin:._,A:...:.u=g=u=s:.:..t =20=0=-=0"-------------
111. Exemption Requested
1. Alternative contracting method requested:._,D=es=ig=n..._-=bu=i=ld:.__ ________ _
Page 1 of 4
2. State the authority upon which this Application is submitted and attach any available
supporting documentation (example: minutes, resolutions, etc.) of that authority:
S.L. 1998-212 {see Attachment 1}
3. Cite the specific criteria approved as an exemption to G. S. 143-128 (see 1 NCAC 30G
.0105(b)) which may be applicable to the project: The project involves the erection or
construction of special or unique technology or equipment whose vendor requires that its services be
purchased in conjunction with the technology or equipment.
4. Describe in detail how this request satisfies that specific criteria cited above:
Ca} S.L. 1998-212 requires that the BCD technology be used as the remediation treatment technology.
BCD is a U.S. Environmental Protection Agency {EPA}-patented technology that requires the purchase of a
license. ·
(b} The landfill is permitted under the Toxic Substances Control Act CTSCA} regulations that require that
contaminated material be treated in equipment permitted by EPA TSCA. The permits are vendor and
equipment specific and cannot be transferred.
IV. Justification for Exemption
(Attach additional pages if necessary)
Describe in detail the circumstances presently existing by which the project cannot be
reasonably completed by use of the usual contracting methods authorized in
G.S. 143-128: The methods of G.S. 143-128 focus on the branches of work associated with construction
of buildings. The work involved is standardized based on codes and regulations. There are many
contractors available who are familiar with performing work to these standards. The majority of cost in this
project is for soil treatment. Experience in designing and operating large-scale PCB remediation treatment
systems must be emphasized in this project because the work must be done to meet TSCA regulations to
permit deregulation and unrestricted future use of the site. There are probably less than ten contractors in
the entire country with the experience needed to perform this work and their approaches to designing the
treatment system will be somewhat unique.
2. Explain in detail why the requested alternative contracting method is necessary for the
project: The TSCA regulations require that PCB-contaminated material be treated in TSCA-permitted
equipment. These permits are obtained by the vendor and are specific to their equipment design and
operation. These permits cannot be transferred. In addition. S.L. 1998-212 requires that the BCD process
be used. This process is patented and requires the purchase of a license. Environmental services firms that
perform soil treatment typically do so using equipment they own or have designed. Therefore. it seems
necessary that the firm that is contracted to perform the remediation should be involved in the design of the
treatment process and equipment.
Page 2 of 4
3. Explain in detail why the requested alternative contracting method is appropriate for the
project: Contractors who perfonn soil treatment similar to what is required at the PCB landfill, such as
Superfund cleanups, do so using equipment and processes they have designed and are familiar with
operating. This is because the successful completion of the process is measured by the ability to meet soil
treatment goals. In this case, there are the added requirements of obtaining a TSCA pennit and BCD
license which are both tied to the specific contractor who obtains them. They cannot be transferred. For this
project it seems appropriate that the contractor who has to obtain the pennits and license and operate the
equipment should be involved in the design of the treatment process.
4. Explain in detail why the requested alternative contracting method is in the public's
interest: It is in the public's interest that the contaminated soil be treated effectively, efficiently, and safely.
These factors are enhanced with a contractor perfonning a remediation project using a process and
equipment that he has designed and has experience with.
5. Describe how the owner has been responsible in the preplanning stages of the project,
and list all action taken by the owner (with dates) which tend to show the owner has been
responsible: ____________________________ _
The process of evaluating the landfill, selecting a detoxification process, and obtaining funding has been
a long process Involving both the state and the community. The history of this process is outlined in
Attachment 3.
A design referred to as the Phase Ill Final Design was completed in March of 2000. A design was
needed in order to issue a bidding package. The design is specification driven when dealing with the site
preparation but perfonnance driven when dealing with the treatment systems. This was done purposely to
allow more competition from remediation contractors. Work on the design started in June of 1999. Monthly
meetings were held between the contractor perfonning this work and the staff of the Division of Waste
Management. These meetings were held on June 15, 1999, July 27, 1999, August 24, 1999, September 28,
1999, December 1, 1999, January 11, 2000, and March 9, 2000. The plans and specifications included in
the design package were reviewed as various stages of completion by division staff including several PEs.
In addition, representatives from the state, community, and contracting finn visited a remediation site using
similar equipment in Maryland on September 14, 1999. Staff from the division also met with TSCA EPA
personnel in Atlanta on September 23, 1999 and January 5, 2000 and in Washington, DC on February 3,
2000 to discuss TSCA pennitting requirements for the detoxification.
Page 3 of 4
6. The State Building Commission's rules provide that a completed Application shall
contain all of the information necessary to enable the Commission to determine the
appropriateness and merits of approving an exemption. This Application will be returned if
it is determined to be incomplete. Please fully state and explain in detail all other
information the owner deems necessary for the State Building Commission to consider the
appropriateness and merits of the requested alternative contracting method (use
additional pages if necessary):. ____________________ _
This approach is supported by EPA Superfund experience in numerous remediation projects. Superfund
found that the contractors hired for the actual remediation requested numerous design changes when
another contractor specified the process design. They now use the design-build approach for these
ro·ects.
V. Certification
I, Patricia M. Backus, PE (person completing application), do hereby certify that I have
the authority to complete and submit this Application and that to the best of my knowledge
th_is Applicatio_n » co_mJ:?lete and ac~urate.j
Signature: ~£tri:~....., l'h. ~'-/JG
Date: April 3, 2000
Submit fifteen (15) copies of the completed application to:
Director, State Construction Office
Suite 450, NC Education Building
301 N. Wilmington St.
Raleigh, NC 27601-2827
Page 4 of 4
ATTACHMENT 1
GENERAL ASSEMBLY OF NORTH CAROLINA
SESSION 1997
SESSION LAW 1998-212
SENA TE BILL 1366
WARREN COUNTY PCB LANDFILL DETOXIFICATION FUNDS
Section 29.9. (a) The Director of the Budget shall place funds appropriated in this act to the Department of
Environment and Natural Resources for the 1998-99 fiscal year for the detoxification of the Warren County
polycblorinated biphenyl (PCB) landfill and any available federal funds into a nonrevcrting reserve to be used by the
Department for the detoxification of a landfill located in Warren County 1hat contains polycblorinated biphenyl
(PCBs) and dioxin/furan contaminated materials. The detoxification treatment standards for residual concentrations
of coDtaminant~ remaining in the soil shall be 200 parts per billion for PCBs and 200 parts per trillion toxicity
equivalent concentration (TEQ) for dioxins/furans. Based catalyud decomposition (BCD) technology shall be used
to detoxify the landfill in accordance with a plan approved by the Department. The Department shall ovmee the
detoxification of this landfill.
(b) Any funds remaining in the resci-ve established under subsection (a) of this section at the conclusion
of the detoxification of the landfill shall remain in a nonreverting reserve and shall be transferred to the Department
of Commerce to be used for economic development in Warren County or Warren County's infrastructure needs, or
both.
GENERAL ASSEMBLY OF NORTH CAROLINA
SESSION 1999
SESSION LAW 1999-237
HOUSE BILL 168
WARREN COUNTY PCB LANDFILL DETOXIFICATION FUNDS
Section 15.16. Notwithstanding G.S. 130A-309.83, one million dollars ($1,000,000) of the funds credited to
an account established under G.S. 130A-309.83 shall be transferred to the Department of Environment and Natural
Resources for the 1999-2000 fiscal year and placed in the nonreverting reserve established under Section 29.9(a)
of S.L. 1998-212 to be used for the detoxification of the Warren County polychlorinated biphenyl (PCB)
landfill consistent with the provisions of Section 29.9 ofS.L. 1998-212.
GENERAL ASSEMBLY OF NORTH CAROLINA
SESSION 1999
SESSION LAW 1999-456
BOUSE BILL 162
Section 54. Section 15.15 of S.L. 1999-237 is amended by designating the existing language as (a) and adding a
new subsection to read:
"Section 15.15.(b) If the Director of the Office of State Budget det~es that sufficient State funds are
available from any source to match federal funds for the detoxification of the Warren County polycblorinated
biphenyl (PCB) landfill, consistent with the provisions of Section 29.9 of S.L. 1998-212, the Director may
transfer funds not to exceed seven million dollars ($7,000,000) to the Department of Environment and Natural
Resources to be placed in the nonreverting resci-ve established under Section 29.9(a) of S.L. 1998-212."
~ '~ ·•J --~ :-.. •? Sate af Narth c.aroliDa
---~~---.-Office of State Budget and
James B. Hunt Jr.
Go.Dar..SDillctor Au,ast3,1999
d&lleladlet
Ma. Afd,ff YOIIDI
Cemnl C,omplilDce Manager
Office ortbe siate C-omroller
Bulb SUeet, Box 89
JWcip. Nor1h c.aroliDa
Dear Ma. Youna: ....
RECE1VED
OFFICE OF THE SECRETARY
,u, -6 S99
Manin K. Dorman, Jr.
a.1a11aet01ice:
Punumt to Section 54 or Ratified Houle BID 162, "'lf 1be Director or the Office of State Budget determines tbat sufficient
State funds are available &am any rm 1D match federal funda for 1be detoxificatiOD of 1be WIJ'ff:D County polycblorinated
biphenyl (PCB) landfill. consiltmt with 1be proviliom of Section 29 .9 of S. L. 1998-212, the Direct.or may 1rlDSf'er funds not
to exceed aeven million dollm ($7,000,000) 1D lhe Depanment of Environment ad Natural Raourcea 1D be placed in lhe
aonrevening ruerve eatablished under Section 29.9 (a) of S. L 1998-212" Accordiqly we are directiD& you to tab the
followizl& srepa in order to allocate lhe funds a direded by the Oencra1 Aaembly.
1. Emblish 1be budJet code 19044 OF llSEllVE-ENJl LANDFILL,
2. Comistent with legislation in Section 54, House Bill 162 traDsfer $7,000,000 from tbe General Fund reversions
u or June 30, 1999, 1D bwfaet code 19044, GF RESEllVE-ENR LANDFILL.
3. Tnnsf'er S7,000,000 from bud&et code 19044 OF RESEllVE-ENR LANDFILL 1D budaet code 49816 ENR-CI
1998 to be budaeted for the Detoxification of PCB landfiJI in Wamn C-ounty atablilhed under Section 29.9 of
S.L. 1998-212.
1be Department authorized to receive lbese funds ii resi:K>111i.illle for IUbmiuiOD of the appropriate doi-urnen!lrion for both the
budget and accommng l)'llem. u Deeded.
cc: Aleta Mills
llobNelaon
Jane Smith
I I e WEST JONES STREET-«ALEIGH 27803-8009 (8 I•> 7aa-7O8 I
AN EQUAL OPPORTUNITY/ Al'"l"IRMATIVE ACTION EMPLOYER
ATTACHMENT 3
STATUS OF PCB LANDFILL DETOXIFICATION
WARREN COUNTY, NC
March 25, 2000
BACKGROUND:
In the late 1970's several thousand gallons of polychlorinated bi-phenyls (PCBs) were
illegally disposed by spraying along approximately 210 miles of state roadways. PCBs were used
extensively as transformer fluids in the early 1970's. However, because they were suspected
carcinogens, they were outlawed from manufacture in 1976 and strictly controlled in disposal as
transformers came out of service.
Listed as a Superfund site under the US EPA program, the roadways were dug up and the
contaminated soils disposed in an approved PCB landfill built in Warren County. There was much
opposition to the landfill and the Environmental Justice movement supposedly got its start at this
site.
In 1982, Governor James B. Hunt Jr., made a commitment to the people of Warren County
that if appropriate and feasible technology became available, the state would explore detoxification
of the landfill. In 1995, $1 million was appropriated to study detoxification. The General
Assembly provided this money for the sole purpose of studying various detoxification technologies,
including bench scale work; confirming that detoxification is possible; and identifying the best
technology available to do the work.
The Warren County PCBWorking Group (WG) was established and consists oflocal
citizens, state employees and members of various environmental organizations. This group has
been working together in a joint partnership with the state to explore detoxification.
ASSESSMENT ST A TUS:
The WG, through the Division of Waste Management (DWM), contracted with two
independent science advisors to provide technical expertise to the WG and to help outline the steps
necessary to explore detoxification.
With staff from the DWM, the WG and science advisors outlined activities that needed to
take place during the detoxification studies. These activities included an extensive site
investigation, installation of monitoring wells, boring into the landfill to extract soils for testing,
and the actual detoxification studies.
Mobilization/site work: ·
On February 12, 1997, DWM personnel and science advisors began work at the PCB
landfill to install additional monitoring wells and begin the site investigation. Fifteen new
monitoring wells were installed around the perimeter of the landfill and in the immediate area
within .25 miles of the landfill. Three were placed off site as background wells, approximately 1.5
miles away. Two boreholes were placed in the landfill from which soils were extracted and
containerized for the detoxification studies. Extraction wells were installed in the boreholes.
Two eight-foot square areas were dug out to a depth of approximately two feet in order to
examine the top liner of the landfill cap system. "Split spoon" samples were taken of the clay cap
and the landfill contents. These samples were analyzed for a variety of things including moisture,
compaction, penneability and PCB content. A 10-mil plastic liner covers the clay cap. Sections of
this liner·were cut out and sent to a testing laboratory for examination. The cut out portions was
replaced and the holes refilled.
Sampling:
Extensive sampling was done in the monitoring wells and streams around the landfill. Soil
and sediment samples from selected locations around the area were taken. These samples were
analyzed for a variety of chemicals including PCBs, dioxin, heavy metals, pesticides and volatile
organic chemicals.
Detoxification studies:
Beginning in 1996, the science advisors for the Working Group, along with DWM staff,
conducted a detailed technology screening, evaluation, assessment and comparative analysis on
potentially feasible technologies. Potential feasibility had to have been demonstrated through prior
successful full-scale use of a technology for PCB detoxification work. Any technology that existed
only as a research or developmental technology was deemed inappropriate.
Twelve different technologies were considered. All but two were screened out. Only Base
Catalyzed Decomposition (BCD) and Gas Phase Chemical Reduction technology were found to be
appropriate and potentially feasible for the Warren County landfill.
Two companies were subsequently picked to conduct bench scale demonstrations. ETG
Environmental, using BCD, and ECOLOGIC, using the Gas Phase Chemical Reduction technology,
were provided samples of the contaminated soils from the landfill, along with v_ery stringent
guidelines and treatment goals for both PCBs and dioxin. Following their bench scale studies, each
company submitted phase I reports that were analyzed by the WG, state staff and
science advisors.
As a result of these phase I studies, the Working Group concluded that feasible and effective
detoxification technology was available and selected BCD as the preferred technology for
detoxification of the PCB Landfill. ETG Environmental, Inc. (ETG) was subsequently awarded a
contract to perfonn a Phase II preliminary design of a full-scale BCD detoxification system to
remediate the PCB Landfill (ETG perf onned the successful Phase I bench scale BCD study.) The
primary purpose of the Phase Il report was to develop sufficient conceptual design information to
allow for preparation of a cost estimate to fonn the basis to request funding from the State
legislature for final design and detoxification of the PCB Landfill utilizing the BCD process.
The BCD process utilizes non-incineration chemical reactions to detoxify the PCBs and
dioxins/furans in the contaminated materials. Chlorine atoms are chemically removed from the
PCB and dioxin/furan molecules, and replaced with hydrogen, rendering them non-hazardous. The
resulting non-hazardous oil can be recycled off-site. Detoxified soils will be replaced on-site,
covered and re-vegetated. The process has been proven at several full-scale project applications.
The preliminary conceptual design of the full-scale detoxification project is divided into two
components. The first component provides written conceptual designs for site preparation,
excavation, treatment, confirmation/verification sampling, stonnwater management, security, site
reclamation, decontamination, and demobilization. These aspects of the project have been
conceptually designed to provide the basis for a detailed cost estimate for detoxification.
The second component presents those aspects of the project, which will be completed during
the final design portion of the Phase Ill Design/Build detoxification. Outlines have been provided
to introduce these final design items, as follows : emergency response plan, permitting plan,
performance demonstration plan, air monitoring plan, quality assurance plan, health and safety
plan, construction quality assurance plan, and technical specifications.
The Design/Build detoxification contractor would include Program Management, working
in conjunction with the state, to ensure that the local community has a strong role in the
detoxification project's implementation. The Design/Build detoxification contractor would also
include a coordinator to ensure maximum economic benefit to local/minority businesses and the
local economy. Direct local economic impact is estimated in the range of $3 million to $5 million,
which includes the hiring of local individuals and utilization of local businesses for supplies,
materials, and services to support the detoxification project. A detailed cost estimate has been
prepared to perfonn the detoxification project utilizing the BCD process. A cost of $23,975,000
was established, which included a $2,079,000 contingency and approximately $1,000,000 for air
monitoring and testing.
The North Carolina General Assembly appropriated $2 million in 1998 to begin
detoxification of the landfill. This appropriation bill also specified the BCD technology and
cleanup levels of 200 ppb PCBs and 200 parts per trillion toxicity equivalent concentration (TEQ)
for dioxins/furans.
In January 1999, the state hired Ms. Pat Backus, PE, and a chemical and environmental
engineer, to be the project manager for detoxification.
On February 16, 1999, Henry Lancaster, then the Deputy Secretary for DENR, Mike Kelly
and Pat Backus met with representatives of the BP A Region 4 in Atlanta to discuss potential
funding support for detoxification and the permitting requirements from EPA to do the work.
Henry Lancaster and Mike Kelly also traveled to Washington in February 1999, and with Jim
McClesky, of the Governor's Washington office, met with various members of the North Carolina
Congressional staff. The purpose of this visit was to update them on the project, and to visit the
Pentagon to discuss the possibility of securing funds from the Department of Defense to help in the
detoxification effort. Approximately ten percent of the contaminated soil in the PCB landfill came
from Ft. Bragg.
A contract for Phase III, Final Design, was awarded to ETG Environmental in May of 1999.
The DWM then sent out requests for a statement of interest to various vendors with the ability to
use BCD technology on a full-scale operation. The DWM wanted to begin looking at the number
of qualified firms available to bid on the full-scale detoxification. :XXXXX companies submitted
letters of interest and qualification packages.
The general assembly passed an additional appropriations bill during the 1999 session to set
aside $7 million out of reverting funds, and to also transfer $1 million from the solid waste white
goods fund for the PCB landfill detoxification project. The appropriations bill for the $7 million
will require some federal matching funds .
In August of 1999 the WG was reorganized as a Citizens Advisory Group (CAB) with a
mission to pursue detoxification and the necessary funding to complete the project. Their
responsibilities also were to continue working with the state staff and contractors to complete the
final design plans for detoxification and to help finalize plans for the redevelopment of the land
once detoxification was completed.
In December 1999, as a result of state needs for hurricane relief, approximately $1 .42
million of non-obligated money was transferred from the detoxification fund back to the state
budget office.
CURRENT STATUS:
The Environmental Protection Agency (EPA) has agreed to provide $225,000 ($75,000 each
year for three years) out of their Environmental Justice program for the hiring of a Community
Involvement Coordinator to work in Warren County as a liaison between the local community,
CAB, state staff and the contractor for detoxification. The individual hired will work through the
Warren Family Institute and will be located at the Warren County PCB office. Applications are
currently being accepted for this position.
On February 3, 2000, Pat Backus and Mike Kelly, along with representatives from ETG
Environmental, met with the permitting staff at EPA headquarters in Washington, DC. The
purpose of this meeting was to bring the EPA staff up to date on the current detoxification
efforts and to discuss a phase funded approach to the detoxification project. The detoxification
project will require a permit from EPA. The Final Design Phase ill document was completed and
turned over to the state on March 9.
DENR staff met March 21 with state contracting personnel to discuss the RFP for a phase-
funded approach to the detoxification. Work is progressing on this RFP. Under the current
schedule, it is anticipated that a contract for the actual detoxification will be signed this fall.
Efforts are currently being undertaken to find additional funding to complete the project as
welJ as the matching federal dollars required under the appropriations bill from 1999.
CONTACT: Michael A. Kelly, Deputy Director
Pat Backus, Project Manager
919-715-3644
919-733-4996, ext. 308
Contracts to Obtain Consultant Services.
§ 143-64.20. "Agency" defined; Governor's approval required.
(a) 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.
(b) 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. (1975, c. 887, s. 1.)
§143-64.21. Findings to be made by Govemor.
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 wi th.
(1975, C. 879, S. 46; C. 887, S. 2.)
§ 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. (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 ofG.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. ( 197 5,
C. 887, S. 4.)
§143-64.24. Applicability of Article.
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. (1975, c. 887, s. 5; 1977, c.
802, s. 50.57.)
ARTICLE 30.
Procurement of Architectural, Engineering, and
Surveying Services.
§ 143-64.31. Declaration of public policy.
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, and surveying services, to select firms qualified to provide such services
on the basis of demonstrated competence and qualification for the type of professio nal services required without
regard to fee other than unit price information at this stage, and thereafter to negotiate a contract for architectural,
engineering, or surveying services at a fair an__d reasonable fee with the best qualified firm. If a contr act cannot be
negotiated with the best qualified firm, negotiations with that firm shall be terminated and initiated with the next
best qualified firm. (1987, c. 102, s. 1; 1989, c. 230, s. 2.)
§ 143-64.32. Written exemption of particular contracts.
Units oflocal government or the North Carolina Department of Transportation may in writing exempt particular
projects from the provisions of this Article in the case of:
(a) Proposed projects where an estimated professional fee is in an amount less than thirty
thousand dollars ($30,000), or
(b) Other particular projects exempted in the sole discretion of the Department of
Transportation or the unit oflocal government, stating the reasons therefor and the circumstances attendant thereto.
(1987, C. 102, S. 2.)
§ 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. (1987, c. 102, s. 3; 1989, c. 230, s. 3, c. 770, s. 44.)
§ 143-64.34. (Effective until July 1, 2001) Exemption of certain projects.
(a) State Capital Improvement Projects under the jurisdiction of the State Building Commission where the
estimated expenditure of public money is less than one hundred thousand dollars ($100 ,000) are exempt from the
provisions of this Article.
(b) A capital improvement project of The University of North Carolina under G.S. 116 -31.11 where the
estimated expenditure of public money is less than three hundred thousand dollars ($300,000) is exe mpt from this
Article if:
(1) The architectural, engineering, or surveying services to be rendered are under an open -end
design agreement;
(2) The open-end design agreement has been publicly announced; and
(3) The open-end design agreement complies with procedures adopted by the University and
approved by the State Building Commission under G.S. l 16-31.1 l(a)(3). (1987, c. 102, s. 3.1; c. 830, s. 78(a); 1997-
314, s. l; 1997-412, s. 5.)
§ 143-64.34. (V2)(Effective July 1, 2001) Exemption of certain projects.
(a) State Capital Improvement Projects under the jurisdiction of the State Building Commission where the
estimated expenditure of public money is less than one hundred thousand dollars ($100,000) are exempt from the
provisions of this Article.
(b) Repealed by Session Laws 1997 -412, s. 5.1, effective July 1, 2001. (1987, c. 102, s. 3.1; c. 830, s. 78(a);
1997-314, s. l; 1997-412, ss. 5, 5.1 .)
ARTICLE 3E.
State/Public School Child Care Contracts.
§ 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. (1991, c. 345, s. 1; 1997 -506, s.
49.)
§ 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." (1991, c. 345, s. 1; 19 97-506, s.
50.)
§ 143-64.52. State/public school-contracted child care facilities; limitation of State/local board liability.
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. ( 1985, c. 393,
s. l; 1987, c. 264, s. 4; 1989, c. 189, s. 1; 1997-443, s. 11A.l 18(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. (1985, c. 393, s. 1; 1987, c. 264, s. 4; 1989, c. 189, s.
1.)
§ 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. (1985, c. 393, s. 1;
1987, C. 264, S. 4; 1989, C. 189, S. 1.)
§ 143-127.S. 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. (1985, c. 393, s .
l ; 1987,c.264,s. l ; 1989,c.189,s. l.)
§ 143-127.6. Administrative and judicial review.
Chapter 150B of the General Statutes governs administrative and judicial review ofa decision under this Article
by the director ofa facility. (1985, c. 393, s. l; 1987, c. 264, ss. 2, 4, c. 827, s. 257; 1989, c. 189, s. l.)
ARTICLE 8.
Public Contracts.
§ 143-28. Requirements for certain building contracts.
(a) Preparation of specifications. --Every officer, board, department, commission or commissions charged with
responsibility of preparation of specifications or awarding or entering into contract s for the erection, construction,
alteration or repair of any buildings for the State, or for any county, municipality, or other public body, must have
prepared separate specifications for each of the following subdivisions or branches of work to be perfor med:
( 1) Heating, ventilating, air conditioning and accessories ( separately or combined into one
conductive system) and/or refrigeration for cold storage (where the cold storage cooling load is 15 tons or more of
refrigeration), and all work kindred thereto.
(2) Plumbing and gas fittings and accessories, and all work kindred thereto.
(3) Electrical wiring and installations, and all work kindred thereto.
(4) General work relating to the erection, construction, alteration, or repair of any building
above referred to, which work is not included in the above -listed three subdivisions or branches.
All such specifications must be so drawn as to permit separate and independent bidding upon each of the
subdivisions or branches of work enumerated above. 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.
(b) Building projects over five hunclrea thousand dollars ($500,000); separate prime contracts. --Except as
provided in subsection ( d) of this section, when the entire cost of the erection, construction, alteration, or repair of a
building exceeds five hundred thousand dollars ($500,000), the State, county, municipality, or other public body
shall accept bids for each subdivision or branch of work for which specifications are required to be prepared under
subsection (a) of this section and shall award the respective work specified s eparately 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 subse ction 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.
Bids may also be accepted from and awards made to separate contractors for other categories of work.
Each separate contractor shall be directly liable to the State of North Carolina, or to the county or municipality,
and to the other separate contractors for the full performance of all duties and obligations due r espectively 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 ofthis section, "separate contractor" mea ns
any person, firm or corporation who shall enter into a contract with the State, or with any county, municipality, or
other public body, for the erection, construction, alteration or repair of any building or buildings, or parts thereof.
(c) Building projects five hundred thousand dollars ($500,000) or less. --When the entire cost of the erection,
construction, alteration, or repair of a building is five hundred thousand dollars ($500,000) or less, the State, county,
municipality, or other public body may accept bids under the single -prime contract system, the separate prime
contract system, or both. The provisions of subsection (b) of this section apply to the use of the separate prime
contract system under this subsection. The provisions of subsection ( d) of this section apply to the use of the single -
prime contract system under this section, except that bidding in the alternative between the single -prime and
separate prime systems is not required. Contracts bid in the alternative between the single -prime and separate prime
systems under this subsection must be awarded to the lowest responsible bidder or bidders, as provided in subsection
( d) of this section.
( d) Single-prime and alternative contracts. --The State, a county, municipality, or other public body may accept
bids under the single-prime contract system or a contracting method approved by the State Building Commission
under G.S. 143-135.26 .
If the State, county, municipality, or other public body accepts bids under the single -prime contract system, it
must also seek bids for the project under the separate prime contract system, except as otherwise authorized under
G.S. 143-135.26, and award the contract to the lowest responsible bidder or bidders for the total project, taking into
consideration quality, performance and the time specified in the bids for the performance of the contract.
When bids are accepted under the single -prime contract system all bidders must 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.
No contractor whose bid is accepted shall substitute any person as subcontractor in the place of the subcontractor
listed in the original bid, except 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 be substantially the same as the terms,
conditions, and requirements of the contract between the contractor and the State, county, municipality, or other
public body.
The requirements of this subsection governing the identification of bidders, substitution of contractors, and the
terms and conditions of subcontractor's contracts apply to all single -prime bidding and single-prime contracts,
regardless of whether bidding in the alternative between the single-prime and separate prime systems has been
waived by the State Building Commission.
(dl) Local school administrative units; building projects over five hundred thousand dollars ($500,000). --
When the entire cost of the building project is more than five hundred thousand dollars ($500,000), a local school
administrative unit shall seek bids as provided in subsection (b) or (d) of this section or this subsection. The local
school administrative unit shall award the contract to the lowest responsible bidder under the single -prime system or
to the lowest responsible bidder under the separate -prime system, taking into consideration quality, performance,
and time specified in the bids for performance of the contract. In dete rrnining the system under which the contract
will be awarded to the lowest responsible bidder, the local school administrative unit may consider cost of
construction oversight, time for completion, and other factors it deems appropriate. The local school ad ministrative
unit shall not open any bid solicited under subsection ( d) of this section unless the unit receives at least three
competitive bids from reputable and qualified contractors regularly engaged in their respective lines of endeavor and
unless the unit receives a bid from at least one general contractor under the separate -prime system. The bids received
as separate-prime bids shall be submitted three hours 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 local school administrative unit under
the separate-prime system. Each single-prime bid that identifies the contractors selected to perform the three major
subdivisions or branches of work described in subsection (d) of this section and that lists the contractors' respective
bid prices for those branches of work shall constitute a single cornpetiti ve bid, and each full set of separate -prime
bids for all of the branches of work described in subsection (d) of this section shall constitute a single competitive
bid. If after advertisement as required by G.S. 143 -129, the local school administrative unit has not received the
minimum number of competitive bids as required by this subsection, the unit shall again advertise for bids. If the
required minimum number of bids is not received as a result of the second advertisement, the unit may let the
contract to the lowest responsible bidder that submitted a bid for the project, even though the unit received only one
bid. A contractor must provide an affidavit to the local school administrative unit that it has made the good faith
effort required pursuant to G. S. 143-128(f), and failure to file the affidavit is grounds for rejection of the bid. All
provisions of Article 8 of Chapter 143 of the General Statutes that are not inconsistent with this subsection shall
apply to local school administrative units.
( e) 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 ofresponsibility for expediting the
work on the 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 con tr actor should be approved. The project expediter, if
required by the contract documents, shall be responsible for the preparation of the project schedule and shall allow
all contractors and subcontractors performing anyofthe branches ofwork listed in sub section (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 such as mediation or arbitration.
(f) Minority goals. --The State shall have a verifiable ten percent (10%) goal for participation by min_ority
businesses in the total value ofworldor each building project. Each city, county, or other public body 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 each building project.
As used in this subsection:
(I) The term "minority-business" means a business:
a. In which at least fifty-one percent (51 %) is owned by one or more minority
persons, 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; and
b. Of which the management and daily business operations are controlled by one or
more of the minority persons 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:
a. Black, that is, a person having origins in any of the black racial groups in Africa;
b. 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;
c. 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, the Pacific Islands;
d. American Indian or Alaskan Native, that is, a person having origins in any of the
original peoples of North America; or
e. Female.
(3) The term "verifiable goal" means:
a. For purposes of the separate prime contract system, that the awarding authority
has adopted written guidelines specifying the actions that will be taken to ensure a good faith effort in the
recruitment and selection of minority businesses for participation in contracts awarded under this section.
b. For purposes of the single-prime contract system, that the awarding authority has
adopted written guidelines specifying the actions that the prime contractor must take to ensure a good faith effort in
the recruitment and selection of minority businesses for participation in contracts awarded under this section; the
required actions must be documented in writing by the contractor to the appropriate awarding authority.
c. For purposes of an alternative contracting system authorized bythe State Building
Commission under G.S. 143-135.26(9), that the awarding authority has adopted written guidelines specifying the
action to be taken to ensure a good faith effort in the recruitment and selection of minority businesses for
participation in contracts awarded under this section.
The State, counties, municipalities, and all other public bodies shall award public building contracts 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 bid or bids.
(g) 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 one
hundred thousand dollars ($100,000) or less. (1925, c. 141, s. 2; 1929, c. 339, s. 2; 1931 , c. 46; 1943, c. 387; 1945,
C. 851; 1949, C. 1137, s. l; 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.)
§ 143-129. Procedure for letting of public contracts; purchases from federal government by State, counties,
etc.
(a) No construction or repair work requiring the estimated expenditure of public money in an amount equal to or
more than one hundred thousand dollars ($100,000) or purchase of apparatus, supplies, materials, or equipment
requiring an estimated expenditure of public money in an amount equal to or more than thirty thousand dollars
($30,000), except in cases of group purchases made by hospitals through a competitive bidding purchasing program
or in cases of special emergency involving the health and safety of the people or their property, shall be performed,
nor shall 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 county, city, town, or other subdivision of the State, unless the provisions of this section
are complied with. For purposes of this Article, a competitive bidding group purchasing program is a formally
organized program that offers purchasing services at discount prices to two or mo re hospital facilities. The limitation
contained in this paragraph shall not apply to construction or repair work undertaken during the progress of a
construction or repair project initially begun pursuant to this section. Further, the provisions of this section shall not
apply to the purchase of gasoline, diesel fuel, alcohol fuel, motor oil or fuel oil. Such purchases shall be subject to
G.S. 143-131.
For purchases of apparatus, supplies, materials, or equipment, the governing body of any municipality, c ounty,
or other 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 or the chief purchasing official the authority to award
contracts, reject bids, readvertise to receive bids on behalf of the unit, or waive bid bonds or deposits, or
performance and payment bond requirements. 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.
(b) Advertisement of the letting of such contracts shall be as follows:
Where the contract is to be let by a board or governing body of the State government, or of a State institution, as
distinguished from a board or governing body of a subdivision of the State, proposals shall be invited by
advertisement at least one week before the time specified for the opening of said proposals in a newspaper having
general circulation in the State of North Carolina. Provided that the advertisements for bidders required by this
section shall be published at such a time that at least seven full days shall lapse between the date of publication of
notice and the date of the opening of bids.
Where the contract is to be let by a county, city, town or other subdivision of the State, proposals shall be invited
by advertisement at least one week before the tirn e specified for the opening of said proposals in a newspaper having
general circulation in such county, city, town or other subdivision.
Such advertisement shall 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, and the time and place for opening of the
proposals, and shall reserve to said board or governing body the right to reject any or all such proposals.
Proposals shall not be rejected for the purpose of evading the provisions of this Article. No board or governing
body of the State or subdivision thereof shall assume responsibility for construction or purchase contracts, or
guarantee the payments oflabor or materials therefor except under provisions of this Article.
All proposals shall be opened in public and shall be recorded on the minutes of the board or governing body and
the award shall be made to the lowest responsible bidder or bidders, taking into consideration quality, perfornrnnce
and the time specified in the proposals for the performance of the oo.ntract. In the event the lowest responsiblebids
are in excess of the funds available for the project, t.b.e responsible board or governing body is authorized to enter
into negotiations with the lowest responsible biader 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 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 a s may be necessary
to bring the cost of the project 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 shall 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 F ederal 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 ofNort h Carolina to execute such
bonds, conditioned that the surety will upon demand forthwith make payment to the obligee upon said bond if the
bidaer fails to execute the contract in accordance with the bid bond. This deposit shall be retained if the successfu l
bidder fails to execute the contract within l O days after the award or fails to give satisfactory surety as required
herein. In the case of proposals for the purchase of apparatus, supplies, materials, or equipment, the board or
governing body may waive the requirement for a bid bond or other deposit.
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 l misdemeanor.
(c) All contracts to which this section applies shall be executed in writing, and the board or governing body shall
require the person to whom the award of contract 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 sai contract and the payment of all sums due for labor and materials in a
manner consistent with Article 3 of Chapter 44A; and no such contract shall be altered except by written agreement
of the contractor, the sureties on his bond, and the board or governing body. Such sur etybond 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, said 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. In
the case of contracts for the purchase of apparatus, supplies, materials, or equipment, the board or governing body
may waive the requirement for a surety bond or other deposit.
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.
( d) 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 relieflabor paid for in whole or in part by appropriations or funds furnished by the
State or federal government.
(e) Any board or governing body of the State or any institution of the State government or of any county, city,
town, or other subdivision of the State may enter into any contract with (i) the United States of America or any
agency thereof, or (ii) any other government unit or agency thereof within the United States, for the purchase, lease,
or other acquisition of any apparatus, supplies, materials, or equipment without regard to the foregoing provisions of
this section or to the provisions of any other section of this Article.
The Secretary of Administration or the governing board of any county, city, town, or other subdivision of the
State may designate any officer or employee of the State, county, city, town or 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
Ameriqi or any agency thereof, or (ii) any other governmental unit or agency thereof within the United States, and
may authorize such officer or employee to make any partial or down payment or payment in ful I that may be
required by regulations of the government or agency disposing of such property.
(f) The provisions of this Article shall not apply to purchases of apparatus, supplies, materials, or equipment
when performance or price competition for a product are not available; when a needed product is available from
only one source of supply; or when stanaardization or compatibility is the overriding consideration. Notwithstanding
any other provision of this section, the governing board of a municipality, county, or other subdivision of the State
shall approve the purchases listed in the preceding sentence prior to the award of the contract. 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 a particular medical item or prosthetic appliance is needed; when a particular product is ordered by an
attending physician for his patients; when additional products are needed to complete an ongoin g job or task; when
products are purchased for "over-the-counter" resale; when a particular product is needed or desired for
experimental, developmental, or research work; or when 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, municipality, county or other political subdivision of the State shall
keep a record of all purchases made pursuant to this subsection. These records are subject to public inspection.
(g) When the governing board of any municipality, county, or other subdivision of the State, or the manager or
purchasing official delegated authority 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 comple ted 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 municipality,
county, or other political subdivision of the State at a regularly scheduled meeting of the governing body no fewer
than 10 days after publication of notice, in a newspaper of general circulation in the area served by the governing
body, that a waiver of the bid procedure will be considered in order to contract with a qualified supplier pursuant to
this section. Rules issued by the Secretary of Administration pursuant to G.S. 143 -49(6) shall apply with respect to
participation in State term contracts.
(h) Notwithstanding any other provision of this section, any board or governing body of any regional public
transportation authority, hereafter referred to as a "RPT A," created pursuant to Article 26 of Chapter 160A of the
General Statutes, or a regional transportation authority, hereafter referred to as a "RT A," created pursuant to Article
2 7 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 competi tive 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.
The competitive proposal method of procurement is normally conducted with m ore 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:
(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 s ources.
(3) RPTAs or RT As 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 maybe conducted either with all offerors or wit h
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.
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 RPT A or the RT A 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. (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. l; C. 910, s. l; 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. l; 1979, 2nd Sess., C. 1081 ; 1981, C.
346, s. l ; c. 754, s. l; 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. I 007; 1994, Ex. Sess., c. 24, s. 14(c); 1995, c. 367, s. 6; 1997 -174, ss. 1-4; 1998-185, s. I; 1998-217,
s. 16.)
§ 143-129.1. Withdrawal of bid.
A public agency may allow a bidder submitting a bid pursuant to North Carolina G.S. 143 -129 for construction
or repair work 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, material or services made directly in the compilation of the bid, which
unintentional arithmetic error or unintentional omission can be clearly shown by objecti ve 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.
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 ofG.S. 143-132. Provided, however, in the event the work is relet for bids, under
no circumstances shall the bidder who has filed a request to withdraw be permitted to rebid the work.
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 agen cy 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 t he 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 oflaw 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. IA-I, 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 I misdemeanor. (1977, c. 617, s. I ; 1993, c. 539, s.
1008; 1994, Ex. Sess., c. 24, s. 14(c).)
§143-129.2. Construction, design and operation of solid waste management facilities.
(a) 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.
(b) To acknowledge the highly complex and innovative nature of solid waste management technolo gy for
processing mixed solid waste, the relatively limited availability of existing and proven proprietary technology
involving solid waste 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 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 8, or any other general, special or 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 oflocal government.
( c) The unit oflocal government shall require in its request for proposals that each proposal to be submitted shall
include:
(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 staffmg, 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 respo nsibilities
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 such proposal and that, in any
event, the proposer must submit sufficiently detailed information to permit a fair and equitable evaluation of such
proposal;
(3) Such 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.
( d) Proposals received in response to such request for proposals may be evaluated on the basis of a te chnical
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 such other factors and
information as 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 propo sal.
(e) The unit oflocal 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, such determination shall be deemed to be conclusive. Notwithstanding other
provisions of this Article 8, or any other genera 1, local or special 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:
(I) A contract, lease, renta 1, license, permit or other authorization to design, construct, operate and maintain such
a solid waste management facility, upon such terms and conditions for such consideration and for such term or
duration, not to exceed 40 years, as may be agreed upon by the unit of local government and such person;
(2) Payment by the unit of local government of a fee or other charge to such person for acceptance, processing,
recycling, management and disposal of solid waste;
(3) An obligation on the part of a unit of local government to deliver or cause to be delivered to a solid waste
management facility guaranteed quantities of solid wastes; and
( 4) The sale, utilization or disposal of any form of energy, recovered material or residue resulting from the
operation of any solid waste management facility.
(t) The construction work for any facility or structure which is ancillary to the solid waste management facility
and which does not involve storage and processing of solid waste or the separation, extraction and r ecovery of useful
or marketable forms of energy and materials from solid waste at the solid waste management facility, shall be
procured through competitive bidding procedures described by G.S. 143 -128 through 143-129.1. Such ancillary
facilities shall include but shall not necessarily be limited to the following: roads, water and sewer lines to the
facility limits, transfer stations, scale house, administration buildings and residue and bypass disposal sites. (1983, c.
795, ss. 4, 8.1.)
§ 143-129.3. Exemption of General Assembly from certain purchasing requirements.
(a) The Legislative Services Commission may provide that the provisions ofG.S. 143 -129 and Article 3 of this
Chapter do not apply to purchases by the General Assembly of data processin g 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.
(b) 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. (1989, c. 82.)
§ 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 governed solely by the provisions of
that Part; except that guaranteed energy savings contracts are subject to the requirements of G.S. 143 -128(f). (1993
(Reg. Sess., 1994), c. 775, s. 4; 1995, c. 509, s. 135.2(k).)
§ 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. ( 1995, c. 265, s. 4; 1999 -20, s. I.)
§ 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 oft rade-in property, taking into
consideration the amount offered on the trade-in when applying the criteria for award established in this Article.
(1997-174, s. 7.)
§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. (1933, c. 400, s. 2; 1967, c. 860.)
§ 143-131. When comities, cities, towns and other subdivisions may let contracts 011 informal bids.
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 five thousand dollars ($5,000) or more, but less than the
limits prescribed in G.S. 143-129, made by any officer, department, board, or commission of any county, city, town,
or other subdivision of this State shall be made after informal bids have been secured. All such contra cts shall be
awarded to the lowest responsible 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, 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. (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. l ; 1987 (Reg. Sess., 1988), c. 1108, s. 6; 1997-174, s. 5.)
§ 143-132. Minimum number of bids for public contracts.
(a) No contract to which G.S. 143-129 applies for construction or repairs shall be awarded by any board or
governing body of the State, or any subdivision thereof, unless at least three competitive bids have been received
from reputable and qualified contractors regularly engaged in their respective lines of endeavor; however, this
section shall not apply to contracts which are negotiated as provided for in G.S. 143 -129. Provided that if after
advertisement for bids as required by G.S. 143 -129, not as many as three competitive bids have been received from
reputable and qualified contractors regularly engaged in their respective lines of endeavor, said board or governing
body of the State agency or of a county, city, town or other subdivision of the State shall again advertise for bids;
and if as a result of such second advertisement, not as many as three competitive bids from reputable and qualified
contractors are received, such board or governing body may then let the contract to the lowest responsible bidder
submitting a bid for such project, even though only one bid is received.
(b) For purposes of contracts bid in the alternative between the separate -prime and single-prime contracts,
pursuant to G.S. 143-128(c) or (d), 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.
(c) 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 1508 of the General Statutes. (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. l, 7.)
§143-133. No evasion permitted.
No bill or contract shall be divided for the purpose of evading the provisions of this Article. (1933, c. 400, s. 3;
1967, c. 860.)
§143-134. Applicable to Department of Transportation and Department of Correction; exceptions.
This Article shall apply to the Department of Transportation and the Department of C orrection except in the
construction ofroads, 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
Correction can be done more economically through use of employees of the Department of Transportation and/or
prison inmates than by letting such repair or building construction to contract, the provisions of this Article shall not
apply to such repair or construction. (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.)
§143-134.1. Interest on final payments due to prime contractors; payments to subcontractors.
(a) 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. l , 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 u sed for the purpose for which
the project was constructed, whichever occurs first. Provided, however, that whenever 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 such project to complete his contract. Should
final payment to any prime contractor beyond the date such 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, said prime contractor shall be paid interest, beginning on
the 46th day, at the rate of one percent (1 %) per month or fraction thereofun less a lower rate is agreed upon on such
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 payment provisions of the contract documents or
said prime contractor shall be paid interest on any such unpaid amount at the rate stipulated above for delayed final
payments. Such interest shall begin on the date the payment is due and continue until the date on which payment is
made. Such due date may be established by the terms of the contract. Funds for payment of such 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 such conditions, interest on such reasonable sum shall not apply.
(b) Within seven days of receipt by the prime contractor of each periodic or final payment, the prime contract or
shall pay the subcontractor based on work completed or service provided under the subcontract. Should any periodic
or final payment to the subcontractor be 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 such unpaid balance as may be due.
(c) The percentage ofretainage on payments made by the prime contractor to the subcontractor shall not exceed
the percentage of retainage on payments made by the owner to the prime contractor. Any percentage of retainage on
payments made by the prime contractor to the subcontractor that exceeds the percentage of retai nage 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.
( d) 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. (1959, c. 1328; 1967, c. 860; 1979, c. 778; 1983, c. 804, ss. 1, 2.)
§ 143-134.2. Actions by contractor on behalf of subcontractor.
(a) 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.
(b) 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 cont ractor 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. (1997 -489, s. l.)
§ 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. (1997 -489, s.
I.)
§ 143-135. Limitation of application of Article.
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 construction or repair work undertaken by the State or by subdivisions of
the State of North Carolina (i) when the work is performed by duly elected officers or agen ts 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, do es
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). This force account work 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 oflabor, 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. (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.)
§ 143-135.1. (Effective m1til July 1, 2001) State buildings exempt from county and municipal building
requirements; consideration of recommendations by counties and municipalities.
(a) 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.
(b) Inspection fees fixed by counties and municipalities shall not be applicable to sue h 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.
(c) 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. (1951, c. I 104, s. 4; 1967, c. 860; 1971, c. 563 ; 1985, c. 757, s. 170(a);
1997-412, s. 10.)
§ 143-135.1. (V2) (Effective July 1, 2001) State buildings exempt from county and municipal building
requirements; consideration of recommendations by counties and municipalities.
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 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.
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, and any and all recommendations made by them shall be given consideration by the
Department of Administration. Requests by county and municipal authorities to inspect plans and spec ifications 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.
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 ofNorth Carolina. (1951, c. I 104, s. 4; 1967, c. 860; 1971, c. 563; 1985, c. 757, s. 170(a).)
§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 buildi ng or
structure where the funds for the restoration of such building or structure are provided entirely by funds donated
from private sources. (1955, c. 27; 1967, c. 860.)
§ 143-135.3. (Effective until July 1, 2001) Adjustment and resolution of State board construction contract
claim.
(a) The word "board" as used in this section 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. "A contract for construction or repair work," as used in this section, is defined as 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, d ocks, 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.
"Contractor" as used in this section includes 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 contract ed to perform such construction or repair work.
(b) A contractor who has not completed a contract with a board for construction or repair work and who has not
received the amount he 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.
(c) A contractor who has completed a contract with a board for construction or repair work and who has not
received the amount he 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
claim shall be submitted within 60 days after the contractor receives a final statement of the board's disposition of
his claim and shall state the factual basis for the claim.
The Director shall investigate a submitted claim within 90 days ofreceiving the claim, or within any longer time
period upon which the Director and the contractor agree. The contractor may appear before the Director, either in
person or through counsel, to present facts and arguments in support of his claim. The Director may allow, deny, or
compromise the claim, in whole or in part. The Director shall give the contractor a written statement of the
Director's decision on the contractor's claim.
A contractor who is dissatisfied with the Director's decision on a claim submitted under this subsection may
commence a contested case on the claim under Chapter 150B of the General Statutes. The contested case shat I be
commenced within 60 days ofreceiving the Director's written statement of the decision.
(cl) A contractor who is dissatisfied with the Director's decision on a 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 ofreceiving the Director's written statement of the decision.
( d) As to any portion of a claim that is denied by the Director, the contractor may, in lieu of the procedures set
forth in the preceding subsection of this section, within six months ofreceipt of the Director's final decision, institute
a civil action for the sum he 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.
(e) 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. (1965, c. 1022; 1967, c. 860; I 969,
C. 950, S. I; 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.)
§ 143-135.3. (V2)(Effective July 1, 2001) Adjustment and resolution of State board construction contract
claim.
(a) The word "board" as used in this section 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 gover ning body of a
subdivision of the State. "A contract for construction or repair work," as used in this section, is defined as 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 enters
into contracts.
"Contractor" as used in this section includes 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.
(b) A contractor who has not completed a contract with a board for construction or repair work and who has not
received the amount he claims is due under the contract may submit a verified written claim to the Director o fthe
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 Ch apter 150B of the General Statutes.
(c) A contractor who has completed a contract with a board for construction or repair work and who has not
received the amount he 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
claim shall be submitted within 60 days after the contractor receives a final statement of the board's disposition of
his claim and shall state the factual basis for the claim.
The Director shall investigate a submitted claim within 90 days of receiving the claim, or within any longer time
period upon which the Director and the contractor agree. The contractor may appear before the Direct or, either in
person or through counsel, to present facts and arguments in support of his claim. The Director may allow, deny, or
compromise the claim, in whole or in part. The Director shall give the contractor a written statement of the
Director's decision on the contractor's claim.
A contractor who is dissatisfied with the Director's decision on a claim submitted under this subsection may
commence a contested case on the claim under Chapter 1508 of the General Statutes. The contested case shall be
commenced within 60 days ofreceiving the Director's written statement of the decision.
(cl) A contractor who is dissatisfied with the Director's decision on a claim submitted under subsection (c) of
this section may commence a contested case on the claim under Chapter 1508 of the General Statutes. The
contested case shall be commenced within 60 days ofreceiving the Director's written statement of the decision.
( d) As to any portion of a claim that is denied by the Director, the contractor may, in lieu of the procedures set
forth in the preceding subsection of this section, within six months ofreceipt of the Director's final decision, institute
a civil action for the sum he 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.
(e) 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. (1965, c. I 022; 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.)
§ 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. (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.
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, instit utions 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. (1983,
C. 692, S. 1.)
§ 143-135.6. Adjustment and resolution of community college board construction contract claim.
(a) 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 he 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.
(b) 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 he claims is due under the contract may follow the sa me claims
procedure in G.S. 143-135.3(c) that is available to a contractor who has contracted with a State board.
( c) A contractor who is dissatisfied with the Director's decision on any portion of a claim submitted pursuant to
subsection (b) of this section may, within six months ofreceipt of the Director's final decision, institute a civil action
for the sum he claims to be entitled to under the contract 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. A contractor may not commence an
action under Chapter 1508 of the General Statutes.
( d) 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.
(e) For the purposes of this section, the following definitions shall apply, unless the context indicates otherwise:
(I) "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.
(f) The provisions of this section are applicable only to community college buildings subject to G.S. 143 -341(3).
(1989, C. 40, S. 2.)
§ 143-135.7. Safety officers.
Each contract for a State capital improvement project, as defined in Article SB 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. (1991 (Reg. Sess., 1992), c. 893, s. 3.)
§ 143-135.8. Prequalification.
Bidders maybe prequalified for any public construction project. (1995, c. 367, s. 8.)
§ 143-135.9. "Best Value" information technology procurements.
(a) For purposes of this section:
(1) "Best Value" procurement means the selection of a contractor based on a determination of
which proposal offers the best trad e-offbetween 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, an din a manner that
accomplishes the stated business objectives and maintains industry standards compliance.
(2) "Government-Vendor Partnership" means 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 complex technology.
(3) "Information technology" includes electronic data processing and telecommunications
goods and services, microelectronics, software, information processing, offices ystems, any services related to the
foregoing, and consulting or other services for design and/or redesign of business processes.
(4) "Solution-Based Solicitation" means 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.
(b) The intent of "Best Value" Information Technology 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. Business process reengineering, system design, and
technology implementation may be combined into a single solicitation.
( c) The acquisition of information technology by the State of North Carolina shall be conducted using the "Best
Value" procurement method. For acquisitions which the procuring agency and the Division of Purchase and
Contracts or the Office of Information Technology Services, 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.
(d) Any county, city, town or subdivision of the State may acquire information technology pursuant to this
section. (1998-189, s. 1; 1999-434, s. 15; 1999-456, s. 39.)
ARTICLE SA
Board of State Contract Appeals.
§§ 143-135.10 through 143-135.20: Repealed by Session Laws 1987, c. 847, s. 5.
ARTICLE SB.
State Building Commission.
§ 143-135.25. State Building Commission --Creation; staff; membership; appointments; terms; vacancies;
chairman; compensation.
(a) 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.
(b) The State Construction Office of the Department of Administration shall provide staff to the State Building
Commission. The chairman of the Commission shall provide direction to the State Construction Office on its work
for the Commission.
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.
(c) 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 A GC (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 in stallation 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 General Assembly upon the recommendation of the
President Pro Tempore of the Senate in accordance with G.S. 120 -121.
( 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 North Carolina
Association of Plumbing, Heating, Cooling Contractors, appointed by the General Assembly upon the
recommendation of the Speaker of the House of Representatives in accordance with G.S. 120-121.
(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
UniversityofNorth 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 Temp ore 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.
The members shall be appointed for staggered three -year terms: The initial appointments to the Commission
shall be made within 15 days of the effective date of this act [April 14, 1987). The initial terms of members
appointed pursuant to subdivisions (1), (2), and (3) shall expire June 30, 1990; the initial terms of members
appointed pursuant to (4), (5), and (6) shall expire June 30, 1989; and the initial terms of members appointed
pursuant to (7), (8), and (9) shall expire June 30, 1988. Members may serve no more than six consecutive years. In
making new appointments or filling vacancies, the Governor shall ensure that minorities and w omen are represented
on the Commission.
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 chairman of the Commission shall be elected by the Commission. The Secretary of State shall serve as
chairman until a chairman is elected.
( d) 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 chairman, 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 chairman by the Commission.
( e) Members of the Commission who are not State officers or employees shall recei ve 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. (1987, c. 71, s. l; 1989, c. 42; 1991, c. 314, s. l ; 1991 (Reg. Sess., 1992), c. 893 , s. 2; 1995,
C. 367, S. 9; C. 490, S. 52; 1997-495, S. 85.J.)
§ 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 and 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 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 and the final selection of the
consultant 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 acco untable for the
final selection of the designer and the final selection of the consultant, 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 and the final selection of the consultant. 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.
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.
(2) To adopt rules for coordinating the plan review, approval, and permit process for State
capital improvement projects.
(3) To adopt rules for establishing a post-occupancy evaluation, annual inspection and
preventive maintenance program for all State buildings.
( 4) 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.
(5) To continuously study and recommend ways to improve the effectiveness and efficiency of
the State's capital facilities development and management program.
(6) 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.
(7) To appoint an advisory board, if the Commission deems it necessary, to assist the
Commission in its work. No one other than the Commis sion may appoint an advisory board to assist or advise it in
its work; and
(8) 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.
(9) Effective July 1, 1996, 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,
including the use of the single-prime contracting system without soliciting bids under both the single and separate
prime contract systems. An authorization under this subdivision for an alternative contracting method shall be
granted only under the following conditions:
a. An authorization shall apply only to a single project.
b. 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.
c. The authorization must be approved by two -thirds of the members of the
Commission present and voting.
The Commission shall not waive the requirements ofG.S. 143-129 or G.S. 143-132 for
public contracts unless otherwise authorized by law.
The Commission shall submit an annual report of its activities to the Governor and the Joint Legislative
Commission on Governmental Operations. (1987, c. 71, s. l; 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. l; 1993, c. 561, s. 29; 1995, c. 367, s. 10; 1996, 2nd Ex.
Sess., c. 18, s. 10.1.)
§ 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. 143-1, are used and which is required by G.S. 143-129 to be
publicly advertised. (1987, c. 71, s. I.)
§ 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 behalfofthe Commission in the authorization of that contract. (1987, c. 71, s. 1.)
ARTICLE 9.
Building Code Council and Building Code.
§ 143-136. Building Code Council created; membership.
(a) Creation; Membership; Terms. --There is hereby created a Building Code Council, which shall be composed
of 17 members appointed by the Governor, consisting of two registered architects, one licensed general contractor,
one licensed general contractor specializing in residential construction, one licensed general contractor specializing
in coastal residential construction, one registered engineer practicing structural engineering, one registered engineer
practicing mechanical engineering, one registere d engineer practicing electrical engineering, one licensed plumbing
and heating contractor, one municipal or county building inspector, 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, a representative of the public who is
not a member of the building construction industry, a licensed electrical contractor, a registered engineer on the
engineering staff of a State agency charged with approval of plans of State -owned buildings, a municipal elected
official or city manager, a county commissioner or county manager, and an active member of the North Carolina fire
service with expertise in fire safety. In selecting the municipal and county members, preference should be given to
members who qualify as either a registered architect, registered 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. Neit her 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 malting new appointments or filling vacancies, the Governor shall ensure that minorities and women are
represented on the Council.
pursuant to the Medicaid waiver provisions of 4 2 U.S.C. § 1396n, or to the Medicaid program authorizations under
Chapter 108A of the General Statutes.
(b) 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 ofa prepaid capitation fee, pursuant to an agreement between the Department of Health and Human
Services and a contract entity. (1993, c. 529, s. 7.4; 1997 -443, s. l 1A.l 18(a).)
§ 143-48.2. Procurement program for nonprofit work centers for the blind and the severely disabled.
(a) 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.
(b) 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:
( l) 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.
(c) 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.
(d) 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. (1995, c. 265, s. 3; 1999-20, s. I.)
§ 143-49. Powers and duties of Secretary.
The Secretary of Administration shall have power and authority, and it shall be his duty, subject to the provisions
of this Article:
(l) To canvass sources of supply, including sources of supply of materials and supplies with
recycled content, and to purchase or to contract for the purchase, lease and lease -purchase of all supplies, materials,
equipment and other tangible personal property required by the State government, or any of its departments,
institutions or agencies under competitive bidding or otherwise as hereinafter provided.
(2) To establish and enforce specifications which shall apply to all supplies, materials and
equipment 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, all
contractual services and needs of the State gave rnment, or any of its departments, institutions, or agencies; or to
authorize any department, institution or agency to purchase or contract for such services.
When the award of any contract for contractual services exceeding a cost of one
hundred thousand dollars ($100,000) requires negotiation with prospective contractors, the Secretary shall request
and the Attorney General shall assign a representative of the office of the Attorney General to assist in negotiation
for the award of the contract. It sh all be the duty of such 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. All contracts and drafts of such contracts shall be prepared by the office of the
Attorney General and copies thereof shall be retained by such offic e for a period of three years following the
termination of such contracts. The term "contractual services" as used in this subsection shall mean work performed
by an independent contractor requiring specialized knowledge, experience, expertise or similar c apabilities 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. The term "negotiation" as used herein shall not be deemed to refer to contracts
entered into or to be entered into as a result of a competitive bidding process.
( 4) 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
,
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General Fund operating budget provided in subsection (a) of this section for that fiscal year shall be increased by the
dollar amount represented by the excess percentage. For all subsequent fiscal years, the percent limitation contained
in subsection (a) shall then be increased to reflect that dollar adjustment.
( c) Fiscal Reports. The Office of State Budget and Management and the Fiscal Research Division of the
General Assembly shall each submit a tentative estimate of total State personal income for the upcoming fiscal year
to the General Assembly no later than February 1 of each year. The Office and the Fiscal Research Division shall
each submit a final projection of total State personal income for the upcoming fiscal year to the General Assembly
no later than May 1 of each year. The General Assembly shall use the lower of the two final projections to calculate
the limitation on the size of the General Fund operating budget provided in this section. (1991, c. 689, s. 346; 1991
(Reg. Sess., 1992), c. 993, s. 14.)
§143-16. Article governs all departmental, agency, etc., appropriations.
Every State department, bureau, division, officer, board, commission, institution, State agency, or undertaking,
shall operate under an appropriation made in accordance with the provisions of this Article; and no State
department, bureau, division, officer, board, commission, institution, or other State agency or undertaking shall
expend any money, except in pursuance of such appropriation and the rules, requirement and regulations made
pursuant to this Article. (1925, c. 89, s. 17; 1929, c. 100, s. 18.)
§ 143-16.1. Federal funds.
(a) All federal funds shall be expended and reported in accordance with provisions of the Executive Budget Act,
except as otherwise provided by law. Proposed budgets recommended to the General Assembly by the Governor and
Advisory Budget Commission shall include information concerning the federa I expenditures in State agencies,
departments and institutions in the same manner as State funds. Each budgetary category shall show the total
received and anticipated State and federal expenditures, along with a description of the purpose for which the fe deral
funds will be spent at the program level. All expenditures for the prior fiscal year and all expenditures anticipated in
the proposed budget shall be reported by objects of expenditure by purpose and shall be identified by each federal
grant. For the purpose of this section, "federal funds" are any financial assistance made to a State agency by the
United States government, whether a loan, grant, su sidy, augmentation, reimbursement, or any other form. The
Director of the Budget may adopt rules and regulations establishing uniform planning, budgeting and fiscal
procedures, not inconsistent with federal law, that ensure that all federal funds shall be expended in a standardized
manner. The function of the Advisory Budget Commission under this section applies only if the Director of the
Budget consults with the Commission in preparation of the budget.
(b) The Secretary of each State agency that receives and administers federal Block Grant funds shall prepare and
submit the agency's Block Grant plans to the Fiscal Research Division of the General Assembly not later than
February 20 of each odd-numbered calendar year and not later than April 20 of each even -numbered calendar year.
The agency shall submit a separate Block Grant plan for each Block Grant received and administered by the agency,
and each plan shall include, but not be limited to, the following:
(1) A delineation of the proposed dollar amount allocations by activity and by category,
including dollar amounts to be used for administrative costs ; and
(2) A comparison of the proposed funding with two prior years' program budgets.
The Director of the Budget shall review for accuracy, consistency, and uniformity each State agency's Block Grant
plans prior to submission of the plans to the General Assembly. (1977, 2nd Sess., c. 1219, s. 45; 1983, c. 717, s. 56;
c. 761, s. 57; 1985 (Reg. Sess., 1986), c. 955, s. 65 ; 1991 (Reg. Sess., 1992), c. 900, s. 8; 1998 -212, s. 7.2; 1999-237,
s. 5(r).)
§143-16.2. Reports.
Whenever the Governor or any other executive officer, agency, board, or commission is authorized by law to
consult with the Advisory Budget Commission prior to taking some action, if there has been no consultation such
action should be reported in writing to the Speaker of the House ofRepre sentatives, the President of the Senate, and
the Director of the Fiscal Research Division as soon as practicable after the action is taken. This section does not
apply to preparation of the budget. (1985 (Reg. Sess., 1986), c. 955, s. 126.)
§ 143-16.3. No expenditures for purposes for which the General Assembly bas considered but not enacted an
appropriation.
Notwithstanding any other provision oflaw, no funds from any source, except for gifts, grants, funds allocated
..
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 o f 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. (1979, c. 477, s. 1; 1987, c.
564, s. 27.)
§ 143-47.7. Notice and record of appointment required.
(a) Within 60 days after acceptance of appointment by a person appointed to public office, the appointing
authority shall file written notice of such appointment with the Governor, the Secretary of State, the State
Legislative Library, the State Library, and the State Controller. For the purposes of this section, a copy of the letter
from the appointing authority or a copy of the properly executed Commission of Appointment shall be sufficient to
be filed if such copy contains the information required in subsection (b) of this section.
(b) The notice required by this Article shall state the name and office of the appointing authority, the public
office to which the appointment is made, the name and address of the appointee, a citation of the law pursuant to
which the appointment is made, the date of the appointment, and the term of the appointment. (1979, c. 477, s. 1;
1991, C. 542, S. 8.)
§143-47.8. Notice of existing appointments.
Within 60 days after the effective date of this Article, every appointing authority shall file notices of all existing
appointments to public offices in accordance with G.S. 143 -47.7. (1979, c. 477, s. 1.)
§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 complian ce is made with the
provisions ofG.S. 143-47.7. (1979, c. 477, s. 1.)
§§143-47.10 to 143-47.14. Reserved for future codification purposes.
ARTICLE2C.
Limit on Number of State Employees.
§ 143-47.15: Repealed by Session Laws 1989, c. 752, s. 45.
§§143-47.16 to 143-47.20. Reserved for future codification purposes.
ARTICLE2D.
North Carolina Board for Need-Based Student Loans.
§§ 143-47.21 to 143-47.24: Repealed by Session Laws 1987, c. 738, s. 41(c).
ARTICLE 3.
Purchases and Contracts.
§ 143-48. State policy; cooperation in promoting the use of small contractors, minority contractors, physically
handicapped contractors, and women contractors; purpose; required annual reports.
(a) 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 Departme nt 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 thi s
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.
(b) Reporting. --Every governmental entity required by statute to use the services of the Department of
Administration in the purchase of goods and services 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 go vernmental 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 (la) of this section, a business in one of the categories
above means one:
a. 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
b. Of which the management and daily business operations are controlled by one or
more persons in the category who own it.
(la) 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.
( 1 b) A "nonprofit work center for the blind and the severely disabled" means an agency:
a. 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;
b. In compliance with any applicable health and safety standard prescribed by the
United States Secretary of Labor; and
c. 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.
(2) 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.
(3) A disabled person means a person with a handicapping condition as defined in G. S. 168 -1
or G.S. 168A-3.
(c) 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.
( d) The Department of Administration shall collect and compile the data described in this section and report it
annually to the General Assembly.
( e) In seeking contracts with the State, a disabled business enterprise must pr ovide 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. (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.)
§ 143-48.1. Medicaid program exemption.
(a) 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
by this subdivision shall not relieve any department, institution or agency of the State government fr om
accountability for equipment, materials, supplies and tangible personal property under its control.
(5) 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.
(6) 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, and to counties, cities, towns, 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 materials, supplies and equipment 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 Adminis tration, 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. Prior to adopting rules and regulations under this subdivision, the Secretary of Admini stration may consult
with the Advisory Budget Commission.
(7) To evaluate the nonprofit qualifications and capabilities of qualified work centers to
manufacturecommoditiesorperformservices.(1931,c.261,s.2; 1951,c.3,s. l ;c.1127,s. l; 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, s. 1;
1996, 2nd Ex. Sess., c. 18, s. 24.17; 1997-443, s. 11A.118(a); 1999-20, s. 1.)
§ 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. (1973, C. 442; 1991, C. 199.)
§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 Administrati on 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. (1931, c. 261, s. 3; 1957, c. 269, s. 3; 1971, c. 587, s. 1; 1975, c.
879, s. 46.)
§143-51. Reports to Secretary required of all agencies as to needs.
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 supplies, materials,
contractual services and equipment needed and required by such department, institution or agency for such periods
in advance as may be designated by the Secretary of Administration. ( 1931, c. 261, s. 4; 19 5 7, c. 269, s. 3; 1971, c.
587, s. l ; 1975, c. 879, s. 46; 1981, c. 602, s. I.)
§ 143-52. Competitive bidding procedure; consolidation of estimates by Secretary; bids; awarding of
contracts.
As feasible, the Secretary of Administration will compile an d consolidate all such estimates of supplies,
materials, printing, equipment and contractual services needed and required by State departments, institutions and
agencies to determine the total requirements of any given commodity. Where such total requireme nts 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 l O days prior to the date designated for opening. Except as
otherwise provided under this Article, contracts for the purchase of supplies, materials or equipment shall be based
on competitive bids and acceptance maae of the lowest and best bid(s) most advantageous to the State as determined
upon consideration of the following criteria: prices offered; 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 matte r of record. Competitive
bids on such 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 such 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 rtjected. 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 performanoe 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 fort he purchase, lease, or
lease/purchase of equipment, materials, and supplies exceeds the benchmark established by G.S. 143 -53 . l, the
contract shall be reviewed by the Board of Awards pursuant to G.S. 143 -52.l 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 souroes of supply and the contract price of the supplies, materials and
equipment so contracted for. Prior to adopting other methods of advertisement under this section, the Secretary of
Administration may consult with the Advisory Budget Commission. Prior to adopting rules and regulations under
this section, the Secretary of Administration may consult with the Advisory Budget Commission. (1931, c. 261, s. 5;
1933, C. 441, S. l; 1957, C. 269, S. 3; 1971, C. 587, S. l; 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.)
§ 143-52.1. Board of Awards.
(a) There is created the Board of Awards.The Board shall consist of three members at a time, appointed by the
Chair of the Commission. Members of the Board shall be appointed on a rotating basis from the membership of the
Commission and the Council of State. Two out of three members appointed for each meeting of the Board shall
constitute a quorum of the Board.
(b) The Board shall meet weekly as called by the Chair of the Commission, ex cept in weeks when no contracts
have been submitted to the Board for review.
( c) When the dollar value of a contract exceeds the benchmark established either pursuant to G.S. 143 -53 .1 or
G.S. 143B-472.63, the Board shall review and make a recommendation on action to be taken by the Secretary of
Administration on contracts to be awarded under Article 3 of Chapter 143 of the General Statutes and on contracts to
be awarded by the Secretary of Commerce under Part 16 of Article 10 of Chapter 143B of the Genera l Statutes, prior
to the awarding of the contract.
( d) The State Budget Officer shall designate a secretary for the Board. The Secretaries of Administration and
Commerce shall each submit their matters for consideration to the secretary for inclusion on the Board's agenda.
Records shall be kept of each meeting and made public by the applicable Secretary of Administration or Commerce
unless the applicable Secretary determines a specific record of the meeting needs to be confidential due to the nature
of the contract. The applicable Secretary may elect to proceed with the award of a contract without a
recommendation of the Board in cases of emergencies or in the event that a Board is not available. In those cases,
contracts awarded without Board review shall be reported to the next meeting of the Board as a matter of record.
( e) Reports on recommendations made by the Board on matters presented by the Secretary of Commerce to the
Board shall be reported monthly by the Board to the chairs of the Joint Select Committee on Information
Technology. (1999-434, s. 13.)
§ 143-53. Rules.
(a) 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 an d Contract shall review and decide a protest on a contract
valued at twenty-five thousand dollars ($25,000) or more. The Secretary shall adopt rules or criteria governing the
review of and decision on a protest on a contract of less than twenty -five thousand dollars ($25,000) by the agency
that awarded the contract.
(2) 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. l or G. S. 116-3 J .10.
The purchasing delegation for securing offers (excluding the special responsibility
constituent institutions of The University of North Carolina), for each State department, institution, agency,
community college, and public school administrative unit shall be determined by the Director of the Division of
Purchase and Contract. For the State agencies this shall be done 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
delegation, or raise the delegation upon written request by the agency, after consideration of their overall
capabilities, including staff resources, purchasing compliance reviews, and audit reports of the ind ividual 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) Defining contractual services for the purposes ofG.S. 143 -49(3) and G.S. 143-49(5).
(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, rental or
lease of equipment, materials, supplies or services may be entered into by means other than competitive bidding.
Notwithstanding the provisions of subsections ( a) and (b) of this sectio n, any waiver of competition for the purchase,
rental, or lease of equipment, materials, supplies, or services is subject to prior review by the Secretary, if the
expenditure exceeds ten thousand dollars ($10,000). 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 ofused equipment, materials
and supplies.
(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.
(b) 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,
§ 143-135.26. Powers and duties oftheCommission.
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 and 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 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 and
the final selection of the consultant 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 and the final selection of
the consultant, 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 and the final
selection of the consultant. 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.
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
3 0 days of selecting the designer.
(2) To adopt rules for coordinating the plan review, approval, and permit process for State capital
improvement projects.
(3) To adopt rules for establishing a post-occupancy evaluation, annual inspection and preventive
maintenance program for all State buildings.
( 4) To develop procedures for evaluating the work performed by designers and contractors on
State capital improvement projects and those community college buildings, as defmed 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.
(5) To continuously study and recommend ways to improve the effectiveness and efficiency of the
State's capital facilities development and management program.
(6) 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.
(7) 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; and
(8) 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.
(9) Effective July 1, 1996, to authorize a State agency, a local governmental unit, or any other
entity subject to the provisions ofG.S. 143-129 to use a method of contracting not authorized under G.S.
143-128, including the use of the single-prime contracting system without soliciting bids under both the
single and separate prime contract systems. An authorization under this subdivision for an alternative
contracting method shall be granted only under the following conditions:
143-128. Requirements for c ertain building contracts.
(a) 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,
c onstructi on, alteration or repair of any buildings for the State, or for any
county, municipality, or other public body, must 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) and/or refrigeration for
cold storage (where the cold storage cooling load is 15 tons or more of
refrigeration), and all work kindred thereto.
(2) Plumbing and gas fittings and accessories, and all work
kindred thereto.
(3) Electrical wiring and installations, and all work kindred
thereto.
(4) General work relating to the erection, construction,
alteration, or repair of any building above referred to, which work is n o t
included in the above-listed three subdivisions or branches.
All such specifications must be so drawn as to permit separate and
independent bidding upon each of the subdivisions or branches of work enumerated
above. 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.
(b) Building projects over five hundred thousand dollars ($500,000);
separate prime contracts. --Except as provided in subsection (d) of this
section, when the entire cost of the erection, construction, alteration, or
repair of a building exceeds five hundred thousand dollars ($500,000), the
State, county, municipality, or other public body shall accept bids for each
subdivision or branch of wo rk 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.
Bids may also be accepted from and awards made to separate contractors for
other categories of work.
Each separate contractor shall be directly liable to the State of No rth
Carolina , or to the county or municipality, and to the other separate
contractors for the full performance of all duties and obligations due
respecti vely under the terms of the separate contracts and in accordance wi th
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
body, for the erection, construction, alteration or repair of any building or
buildings, or parts thereof.
(c) Building projects five hundred thousand dollars ($500,000) or less.
When the entire cost of the erection, construction, alteration, or repair of a
building is five hundred thousand dollars ($500,000) or less, the State, county,
municipality, or other public body may accept bids under the single-prime
contract system, the separate prime contract system, or both. The provisions of
subsection (b) of this section apply to the use of the separate prime contract
system under this subsection. The provisions of subsection (d) of this section
apply to the use of the single-prime contract system under this section, except
that bidding in the alternative between the single-prime and separate prime
systems is not required. Contracts bid in the alternative between the single-
prime and separate prime systems under this subsection must be awarded to the
lowest responsible bidder or bidders, as provided in subsection (d) of this
section.
(d) Single-prime and alternative contracts. The State, a county,
municipality, or other public body may accept bids under the single-prime
contract system or a contracting method approved by the State Building
Commission under G.S. 143-135.26.
If the State, county, municipality, or other public body accepts bids under
the single-prime contract system, it must also seek bids for the project under
the separate prime contract system, except as otherwise authorized under G.S .
143-135.26, and award the contract to the lowest responsible bidder or bidders
for the total project, taking into consideration quality, performance and the
time specified in the bids for the performance of the contract .
When bids are accepted under the single-prime contract s ystem all bidders
must identify on their bid the contractors they have selected for the
s ubdivisions or branches of work for:
(1) Heating, ventilating, and air conditioning;
(2) Plumbing;
(3) Electrical; and
(4) General.
No contractor whose bid is accepted shall substitute any person a s
subcontractor in the place of the subcontractor listed in the original bid,
except with the approval of the awarding authority for good cause shown by the
contractor. The terms, conditions, and requirements of each c ontract between the
contractor and a subcontractor performing work under a subdivision or branch of
work listed in this subsection shall be substantially the same as the t e rms,
conditions, and requirements of the contract between the contractor and the
State, county, municipality, or other public body.
The requirements of this subsection governing the identification of
bidders, substitution of contractors, and the terms and conditions of
subcontractor's contracts apply to all single-prime bidding and single-prime
contracts, regardless of whether bidding in the alternative between the single-
prime and separate prime systems has been waived by the State Building
Commission.
~ (dl) Local school administrative units; building projec ts over five
hundred thousand dollars ($500,000). --When the entire cost of the building
project is more than five hundred thousand dollars ($500,000), a local s chool
administrative unit shall seek bids as provided in subsection (b) or (d ) of this
section or this subsection. The local s chool administrative unit shall award the
contract to the lowest res ponsible bidder under the single-prime system or to
the lowest responsible bidder under the separate-prime system, taking into
consideration quality, performance, and time specified in the bids for
performance of the contract. In determining the system under which the c ontract
will be awarded to the lowest responsible bidder, the local s chool
admini s trative unit may consider cost of construction oversight, time f o r
completion, and other factors it deems appropriate . The local school
administrative unit shall not open any bid solicited under subsection (d) of
this section unless the unit receives at least three competitive bids from
reputable and qualified contractors regularly engaged in their respective lines
of endeavor and unless the unit receives a bid from at least one general
contractor under the separate-prime system. The bids received as separate-prime
bids shall be submitted three hours 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 local school
administrative unit under the separate-prime system. Each single-prime bid that
identifies the contractors selected to perform the three major subdivisions or
branches of work described in subsection (d) of this section and that lists the
contractors ' respective bid prices for those branches of work shall constitute a
single competitive bid, and each full set of separate-prime bids for all of the
branches of work described in subsection
(d) of this section shall constitute a single competitive bid. If after
advertisement as required by G.S . 143-129, the local school administrative unit
has not received the minimum number of competitive bids as required by this
subsection, the unit shall again advertise for bids. If the required minimum
number of bids is not received as a result of the second advertisement, the unit
may let the contract to the lowest responsible bidder that submitted a bid for
the project, even though the unit received only one bid. A contractor must
provide an affidavit to the local school administrative unit that it has made
the good faith effort required pursuant to G.S. 143-128(f), and failure to file
the affidavit is grounds for rejection of the bid. All provis ions of Article 8
of Chapter 143 of the General Statutes that are not inconsistent with this
subsection shall apply to local school administrative units.
(e) 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 the 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 the preparation of 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, fhe public body may provide in
the contract documents for resolution of project disputes through alternative
dispute resolution processes such as mediation or arbitration .
(f) Minority goals . --The State shall have a verifiable ten percent (10%)
goal for participation by minority businesses in the total value of work for
each building project. Each city, county, or other public body 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 each
building project.
As used in this subsection:
(1) The term "minority-business" means a business:
a. In which at least fifty-one percent (51%) is owned by one
or more minority persons, 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;
and
b. Of which the management and daily business operations are
controlled by one or more of the minority persons 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:
a . Black, that is, a person having origins in any of the
black racial groups in Africa;
b. 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;
c. 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, the Pacific Islands;
d. American Indian or Alaskan Native, that is, a person
having origins in any of the original peoples of North America; or
e. Female.
(3) The term "verifiable goal" means:
a. For purposes of the separate prime contract system, that
the awarding authority has adopted written guidelines specifying the actions
that will be taken to ensure a good faith effort in the recruitment and
selection of minority businesses for participation in contracts awarded under
this section.
b. For purposes of the single-prime contract system, that the
awarding authority has adopted written guidelines specifying the actions that
the prime contractor must take to ensure a good faith effort in the recruitment
and selection of minority businesses for participation in contracts awarded
under this section; the required actions must be documented in writing by the
c ontractor to the appropriate awarding authority.
c. For purposes of an alternative contracting system
authori zed by the State Building Commission under G.S. 143-135.26(9), that the
awarding authority has adopted written guidelines specifying the action to be
taken to ensure a good faith effort in the recruitment and selection of minority
businesses for participation in contracts awarded under this section.
The State, counties, municipalities, and all other public bodies shall
award public building contracts 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 o f
materials or equipment from minority-business contractors or minority-bus iness
subcontractors who do not submit the lowest responsible bid or bids.
(g) 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 one hundred thousand dollars ($100,000) or
less. (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.)
CHAPTER 133.
Public Works.
ARTICLE 1.
General Provisions.
§ 133-1. Employment of architects, etc., on public works when interested in use of materials
prohibited.
It shall be unlawful for any architect, engineer, or other individual, firm, or corporation
providing design services for any city, county or State work supported wholly or in part with
public funds, knowingly to specify any building materials, equipment or other items which are
manufactured, sold or distributed by any finn or corporation in which such designer or specifier
has a financial interest by reason of being a partner, officer, employee, agent or substantial
stockholder. (1933, c. 66, s. l; 1977, c. 730.)
§ 133-1.1. Certain buildings involving public funds to be designed, etc., by architect or
engineer.
(a) In the interest of public health, safety and economy, every officer, board, department, or
commission charged with the duty of approving plans and specifications or awarding or entering
into contracts involving the expenditure of public funds in excess of:
( 1) One hundred thousand dollars ($100,000) for the repair of public buildings
where such repair does not include major structural change in framing or foundation support
systems,
(2) Forty-five thousand dollars ($45,000) for the repair of public buildings
where such repair includes major structural change in framing or foundation support systems, or
(3) Forty-five thousand dollars ($45,000) for the construction of, or additions
to, public buildings or State-owned and operated utilities,
shall require that such plans and specifications be prepared by a registered architect, in
accordance with the provisions of Chapter 83A of the General Statutes, or by a registered
engineer,., in accordance with the provisions of Chapter 89C of the General Statutes, or by both
architect and engineer, particularly qualified by training and experience for the type of work
involved, and that the North Carolina seal of such architect or engineer together with the name
and address of such architect or engineer, or both, be placed on all such plans and specifications.
(b) ( 1) On all projects requiring the services of an architect, an architect shall
conduct frequent and regular inspections or such inspections as required by contract and shall
issue a signed and sealed certificate of compliance to the awarding authority that:
a. The inspections of the construction, repairs or installations have
been conducted with the degree of care and professional skill and judgment ordinarily exercised
by a member of that profession; and
b. To the best of his knowledge and in the professional opinion of the
architect, the contractor has fulfilled the obligations of such plans, specifications, and contract.
(2) On all projects requiring the services of an engineer, an engineer shall
conduct frequent and regular inspections or such inspections as required by contract and shall
issue a signed and sealed certificate of compliance to the awarding authority that:
a. The inspections of the construction, repairs, or installations have
been conducted with the degree of care and professional skill and judgment ordinarily exercised
by a member of that profession; and
b. To the best ofhis knowledge and in the professional opinion of the
engineer, the contractor has fulfilled the obligations of such plans, specifications, and contract.
(3) No certificate of compliance shall be issued until the architect and/or
engineer is satisfied that the contractor has fulfilled the obligations of such plans, specifications,
and contract.
(c) The following shall be excepted from the requirements of subsection (a) of this section:
( 1) Dwellings and outbuildings in connection therewith, such as barns and
private garages.
(2) Apartment buildings used exclusively as the residence of not more than two
families.
(3) Buildings used for agricultural purposes other than schools or assembly
halls which are not within the limits ofa city or an incorporated village.
( 4) Temporary buildings or sheds used exclusively for construction purposes,
not exceeding 20 feet in any direction, and not used for living quarters.
( d) (Effective until July 1, 2001) On projects on which no registered architect or engineer is
required pursuant to the provisions of this section, the governing board or awarding authority
shall require a certificate of compliance with the State Building Code from the city or county
inspector for the specific trade or trades involved or from a registered architect or engineer,
except that the provisions of this subsection shall not apply on projects (i) wherein plans and
specifications are approved by the Department of Administration, Division of State Construction,
and the completed project is inspected by the Division of State Construction and the State
Electrical Inspector, (ii) that are exempt from the State Building Code, (iii) that are subject to
G.S. 116-31.11 and the completed project is inspected by the State Electrical Inspector and by
The University ofNorth Carolina or its constituent or affiliated institution, (iv) that are subject to
G. S. 116-3 7(j) and the completed project is inspected by the State Electrical Inspector and by the
University of North Carolina Health Care System, (v) that are subject to G.S. 116-37(a)( 4) and
the completed project is inspected by the State Electrical Inspector and by the University of
North Carolina Hospitals at Chapel Hill, (vi) that are subject to G.S. 116-37(a)(4) and the
completed project is inspected by the State Electrical Inspector and the University of North
Carolina at Chapel Hill on behalfofthe clinical patient care programs of the School of Medicine
ofThe University ofNorth Carolina, or (vii) that are subject to G.S. l 16-40.6(e) and the
completed project is inspected by the State Electrical Inspector and by East Carolina University
on behalf of the Medical Faculty Practice Plan.
( d) (Effective July 1, 2001) On projects on which no registered architect or engineer is
required pursuant to the provisions of this section, the governing board or awarding authority
shall require a certificate of compliance with the State Building Code from the city or county
inspector for the specific trade or trades involved or from a registered architect or engineer,
except that the provisions of this subsection shall not apply on projects wherein plans and
specifications are approved by the Department of Administration, Division of State Construction,
and the completed project is inspected by the Division of State Construction and the State
Electrical Inspector, or on projects exempt from the State Building Code.
( e) All plans and specifications for public buildings of any kind shall be identified by the
name and address of the author thereof
(f) Neither the designer nor the contractor involved shall receive his final payment until the
required certificate of compliance shall have been received by the awarding authority.
(g) On all facilities which are covered by this Article, other than those listed in subsection ( c)
of this section and which require any job-installed finishes, the plans and specifications shall
include the color schedule. (1953 , c. 1339; 1957, c. 994; 1963, c. 752; 1973, c. 1414, s. 2; 1979,
c. 891 ; 1981, c. 687; 1983 (Reg. Sess., 1984), c. 970, s. 1; 1989, c. 24; 1997-412, s. 11; 1998-
212, s. 11.8(e).)
§133-2. Drawing of plans by material furnisher prohibited.
It shall be unlawful for any architect, engineer, designer or draftsman, employed on county,
State, or city works, to employ or allow any manufacturer, his representatives or agents, to write,
plan, draw, or make specifications for such works or any part thereof (1933, c. 66, s. 2.)
§ 133-3. Specifications to carry competitive items; substitution of materials.
All architects, engineers, designers, or draftsmen, when providing design services, or writing
specifications, directly or indirectly, for materials to be used in any city, county or State work,
shall specify in their plans the required performance and design characteristics of such materials.
However, when it is impossible or impractical to specify the required performance and design
characteristics for such materials, then the architect, engineer, designer or draftsman may use a
brand name specification so long as they cite three or more examples of items of equal design or
equivalent design, which would establish an acceptable range for items of equal or equivalent
design. The specifications shall state clearly that the cited examples are used only to denote the
quality standard of product desired and that they do not restrict bidders to a specific brand, make,
manufacturer or specific name; that they are used only to set forth and convey to bidders the
general style, type, character and quality of product desired; and that equivalent products will be
acceptable. Where it is impossible to specify performance and design characteristics for such
materials and impossible to cite three or more items due to the fact that there are not that many
items of similar or equivalent design in competition, then as many items as are available shall be
cited. On all city, county or State works, the maximum interchangeability and compatibility of
cited items shall be required. The brand of product used on a city, county or State work shall not
limit competitive bidding on future works. If an architect, engineer, designer, draftsman or
owner prefers a particular brand of material, then such brand shall be bid as an alternate to the
base bid and in such case the base bid shall cite three or more examples of items of equal or
equivalent design, which would establish an acceptable range for items of equal or equivalent
design. Substitution of materials, items, or equipment of equal or equivalent design shall be
submitted to the architect or engineer for approval or disapproval; such approval or disapproval
shall be made by the architect or engineer prior to the opening of bids. The purpose of this
statute is to mandate and encourage free and open competition on public contracts. ( 1933, c. 66,
S. 3; 1951, C. 1104, S. 5; 1993, C. 334, S. 7.1.)
§ 33-4. iolation of Chapter made misdemeanor.
Any person, firm, or corporation violating the provisions of this Chapter shall be guilty of a
Class 3 misdemeanor and upon conviction, license to practice his profession in this State shall be
withdrawn for a period of one year and he shall only be subject to a fine of not more than five
hundred dollars ($500.00). (1933, c. 66, s. 4; 1993, c. 539, s. 969; 1994, Ex. Sess., c. 24, s.
14(c).)
§ 133-4.1. Guaranteed energy savings contracts.
Except for G.S. 133-1.1, the provisions of this Article shall not apply toe nergy conservation
measures undertaken as part of a guaranteed energy savings contract entered into pursuant to the
provisions of Part 2 of Article 3B of Chapter 143 of the General Statutes. (1993 (Reg. Sess.,
1994), C. 77 5, S. 8.)
ARTICLE 2.
Relocation Assistance.
§ 133-5. Short title.
This Article shall be cited as "The Uniform Relocation Assistance and Real Property
Acquisition Policies Act." (1971, c. 1107, s. 1.)
§133-6. Declaration of purpose.
The purpose of this Article is to establish a uniform policy for the fair and equitable treatment
of persons displaced as a result of public works programs in order that such persons shall not
suffer disproportionate injuries as a result of programs designed for the benefit of the public as a
whole and to insure continuing eligibility for federal aid funds to the State and its agencies and
subdivisions. (1971 , c. 1107, s. 1.)
§ 133-7. Definitions.
As used in this Article:
(1) "Agency" means the State of North Carolina or any board, bureau,
commission, institution, or other agency of the State, or any board or governing body of a
political subdivision of the State, or an agency, commission, or authority of a political
subdivision of the State.
(2) "Business" means any lawful activity, excepting a farm operation,
conducted primarily:
a. For the purchase, sale, lease and rental of personal and real property,
and for the manufacture, processing, or marketing of products, commodities, or any other
personal property;
b. For the sale of services to the public;
c. By a nonprofit organization; or
d. Solely for the purposes of G.S. 133-8(a), for assisting in the
purchase, sale, resale, manufacture, processing, or marketing of products, commodities, personal
property, or services by the erection and maintenance of an outdoor advertising display or
displays, whether or not such display or displays are located on the premises on which any of the
above activities are conducted.
(3) a. "Displaced person" means, except as provided in subdivision (a)(ii)-
(i)Any person who moves from real property, o r moves his personal property fo
residential tenant or conducts a small business, a farm operation, or business defined in G.S. 133-
7(2)(d) as a direct esult ofrehabilitation, demolition, or such other displacing activity as the
agency may prescribe, under a program or project undertaken by an agency in any case in which
the agency determines that such displacement is permanent; and
(ii)Solely for the purposes of G.S. 133-8( a) and (b) and G.S. 133-11, any person
person conducts a business or farm operation, for a program or project undertaken by an agency;
or (B) as a direct result ofrehabilitation, demolition, or such other displacing activity as the
agency may prescribe, of other real property on which such person conducts a business or fa1m
operation, under a program or project undertaken by an agency where the agency determines that
such displacement is permanent.
b. The term "displaced person" does not include --
(i)A person who has been determined, according to criteria established by the ai
(ii)In any case in which the agency acquires property for a program or project, a:
for the program or project.
( 4) "Farm operation" means any activity conducted solely or primarily for the
production of one or more agricultural products or commodities, including timber, for sale or
home use, and customarily producing such products or commodities in sufficient quantity to be
capable of contributing materially to the operator's support.
(5) "Person" means any individual, partnership, corporation or association.
(6) "Program or project" for the purpose ofthis Article shall mean any
construction or rehabilitation project undertaken by an agency, as herein defined or the
utilization of real property by an agency for any other public purposes, and to which program or
project the agency makes this Article applicable.
(7) "Relocation officer" means the head of the department delegated the
authority to carry out relocation policies by the agency.
(8) "Comparable replacement dwelling" means any dwelling that is (i) decent,
safe, and sanitary; (ii) adequate in size to accommodate the occupants; (iii) within the financial
means of the displaced person; (iv) functionally equivalent; (v) in an area not subject to
unreasonably adverse environmental conditions; and (vi) in a location generally not less
desirable than the location of the displaced person's dwelling with respect to public utilities,
facilities, services, and the displaced person's place of employment.
(9) "Appraisal" means a written statement independently and impartially
prepared by a qualified appraiser setting forth an opinion of defined value of an adequately
described property as ofa specific date, supported by the presentation and analysis ofrelevant
market information.
(10) "Lead agency" means the North Carolina Department ofTransportation.
The lead agency shall issue such ,rules and regulations as may be necessary to carry out this
Article and to comply with federal aid regulations. (1971 , c. 1107, s. 1; 1989, c. 28, s. 1.)
§ 133-8. Moving and related expenses.
(a) Whenever the acquisition ofreal property for a program or project undertaken by an
agency will result in the displacement of any person, such agency shall make a payment to any
displaced person, upon application as approved by the head of the agency for:
( 1) Actual reasonable expenses in moving himself, his family, business, fa1m
operation, or other personal property;
(2) Actual direct losses of tangible personal property as a result of moving or
discontinuing a business or farm operation, but not to exceed an amount equal to the reasonable
expenses that would have been required to relocate such property, as determined by the
relocation officer; and
(3) Actual reasonable expenses in searching for a replacement business or farm
in accordance with criteria established by the lead agency, but not to exceed one thousand dollars
($1,000); and
( 4) Actual reasonable expenses necessary to reestablish a displaced farm,
nonprofit organization, or small business at its new site, in accordance with criteria to be
established by the lead agency, but not to exceed ten thousand dollars ($10,000).
(b) Any displaced person eligible for payments under subsection (a) of this se ction who is
displaced from a dwelling and who elects to accept the payments authorized by this subsection in
lieu of the payments authorized by subsection (a) of this section may receive an expense and
dislocation allowance, which shall be determined according to a schedule established by the lead
agency.
(c) Any displaced person eligible for payments under subsection (a) of this section who is
displaced from the person's place of business or farm operation and who is eligible under criteria
established by the lead agency may elect to accept the payment authorized by this subsection in
lieu of the payment authorized by subsection (a) of this section. Such payment shall consist of a
fixed payment in an amount to be determined according to criteria established by the lead
agency, except that such payment shall not be less than one thousand dollars ($1,000) nor more
than twenty thousand dollars ($20,000). A person whose sole business at the displacement
dwelling is the rental of such property to others shall not qualify for a payment under this
subsection. (1971, c. 1107, s. 1; 1989, c. 28, s. 2.)
§ 133-9. Replacement housing for homeowners.
(a) In addition to payments otherwise authorized by this Article and subject to the provisions
ofG.S. 133-10.1 the agency shall make an additional payment not in excess of twenty-two
thousand five hundred dollars ($22,500) to any displaced person who is displaced from a
dwelling actually owned and occupied by such displaced person for not less than 180 days prior
to the initiation of negotiations for the acquisition of the property. Such additional payment shall
include the following elements:
(1) The amount, if any, which when added to the acquisition cost of the
dwelling acquired by the agency, equals the reasonable cost of a comparable replacement
dwelling. All determinations required to carry out this section shall be made in accordance with
standards established by the lead agency.
(2) The amount, if any, which will compensate such displaced person for any
increased interest costs and other debt service costs which such person is required to pay for
fmancing the acquisition of any such comparable replacement dwelling. Such amount shall be
paid only if the dwelling acquired by the agency was encumbered by a bona fide mortgage which
was a valid lien on such dwelling for not less than 180 days immediately prior to the initiation of
negotiations for the acquisition of such dwelling in accordance with criteria to be established by
the lead agency.
(3) Reasonable expenses incurred by such displaced person for evidence of
title, recording fees, and other closing costs incident to the purchase of the replacement dwelling,
but not including prepaid expenses.
(b) The additional payment authorized by this section shall be made only to a displaced
person who purchases and occupies a comparable replacement dwelling within one year after the
date on which such person receives final payment from the agency for the acquired dwelling,
except that the agency may extend such period for good cause. If such period is extended, the
payment under this section shall be based on the costs of relocating the person to a comparable
replacement dwelling within one year of such date.
( c) The agency may, in cooperation with any federal agency upon application by a mortgagee,
insure any mortgage (including advances during construction) on a comparable replacement
dwelling executed by a displaced person assisted under this section, which mortgage is eligible
for insurance under any federal law administered by such agency notwithstanding any
requirements under such law relating to age, physical condition, or other personal characteristics
of eligible mortgagors, and may make commitments for the insurance of such mortgage prior to
the date of execution of the mortgage. (1971, c. 1107, s. l; 1981, c. 101, s. l; 1989, c. 28, s. 3.)
§ 133-10. Replacement housing for tenants and certain others.
(a) In addition to amounts otherwise authorized by this Article, the agency shall make a
payment to or for any displaced person displaced from any dwelling not eligible to receive a
payment under G.S. 133-9 which dwelling was actually and lawfully occupied by such displaced
person for not less than 90 days immediately prior to ( l) the initiation of negotiations for
acquisition of such dwelling, or (2) in any case in which displacement is not a direct result of
acquisition, such other event as the agency shall prescribe. Such payment shall consist of the
amount necessary to enable such person to lease or rent for a period not to exceed 42 months, a
comparable replacement dwelling, but not to exceed five thousand two hundred fifty dollars
($5,250). At the discretion of the agency, a payment under this subsection may be made in
periodic installments. Computation of a payment under this subsection to a low-income
displaced person for a comparable replacement dwelling shall take into account such person's
mcome.
(b) Any person eligible for a payment under subsection (a) of this section may elect to apply
such payment to a down payment on, and other incidental expenses pursuant to, the purchase of a
comparable replacement dwelling. Any such person may, at the discretion of the agency, be
eligible under this subsection for the maximum payment allowed under subsection (a), except
that, in the case of a displaced homeowner who has owned and occupied the displacement
dwelling for at least 90 days but not more than 180 days immediately prior to the initiation of
negotiations for the acquisition of such dwelling, such payment shall not exceed the payment
such person would otherwise have received under G.S. 133-9(a) had the person owned and
occupied the displacement dwelling 180 days prior to the initiation of such negotiations. ( 1971,
C. 1107, S. l; 1981, C. 101, S. 2; 1989, C. 28, S. 4.)
§133-10.1. Authorization for replacement housing.
(a) As a last resort, if a project cannot proceed to actual construction because of the lack of
availability of comparable sale or rental housing, or because required federal -aid payments are in
excess of those otherwise authorized by this Article, the State of North Carolina and its agencies
may:
( 1) Undertake through private contractors, after competitive bidding, to provide
for the construction and renovation of the necessary housing,
(2) Purchase sites and improvements after publishing in a newspaper of general
circulation in the county in which such sites are located a public notice of the proposed
transaction, including a description of the sites and improvements to be purchased, the owner or
owners thereof, the terms of the transaction including the price and date of the proposed
purchase, and a brief description of the factors upon which the agency has based its
determination that such housing is not otherwise available, and
(3) Sell or lease the premises to the displaced person upon such terms as the
agency deems necessary.
(4) Exceed the limitation in G.S. 133-9(a) and 133-10.
(b) Cities, counties and other local governments and agencies may comply with and provide
assistance authorized under the Federal Uniform Relocation and Real Property Acquisition
Policy Act of 1970, as amended, for last resort housing. (1975, c. 515; 1981, c. 101, ss. 3, 4;
1989, C. 28, S. 5.)
§ 133-11. Relocation assistance advisory services.
(a) Programs or projects undertaken by an agency shall be planned in a manner that (1)
recognizes, at any early stage in the planning of such programs or projects and before the
commencement of any actions which will cause displacements of individuals, families,
businesses, and farm operations, and (2) provides for the resolution of such problems in order to
minimize adverse impacts on displaced persons and to expedite program or project advancement
and completion.
(b) Agencies shall ensure that the relocation assistance advisory services described in
subsection ( c) of this section are made available to all persons displaced by such agency. If such
agency determines that any person occupying property immediately adjacent to the property
where the displacing activity occurs suffers substantial economic injury as a result thereof, the
agency may make such advisory services available to that person.
( c) Each relocation assistance advisory pro gram required by subsection (b) of this section
shall include such measures, facilities, or services as may be necessary or appropriate in order to:
( 1) Determine, and make timely recommendations on, the needs and
preferences, if any, of displaced persons for relocation assistance;
(2) Provide current and continuing information on the availability, sales prices,
and rental charges of comparable replacement dwellings for displaced homeowners and tenants
and suitable locations for businesses and farm operations;
(3) Assist a person displaced from a business or farm operation in obtaining
and becoming established in a suitable replacement location;
( 4) Supply (i) information concerning federal, State, and local programs which
may be of assistance to displaced persons, and (ii) technical assistance to such persons in
applying for assistance under such programs;
(5) Provide other advisory services to displaced persons in order to minimize
hardships to such persons in adjusting to relocation; and
( 6) The agency shall coordinate relocation activities performed by such age ncy
with other federal, State, or local governmental actions in the community which could affect the
efficient and effective delivery ofrelocation assistance and related services.
( d) Notwithstanding G. S. 133-7(3)b, in any case in which a displacing age ncy acquires
property for a program or project, any person who occupies such property on a rental basis for a
short term or a period subject to termination when the property is needed for the program or
project shall be eligible for advisory services to the extent determined by the agency. ( 1971, c.
1107, S. 1; 1989, C. 28, S. 6.)
§133-12. Expenses incidental to transfer of property.
(a) In addition to amounts otherwise authorized by this Article, the agency is authorized to
reimburse or to pay on behalf of the owners ofreal property acquired for a program or project for
reasonable and necessary expenses incurred for:
( 1) Recording fees, transfer taxes, and similar expenses incidental to conveying such property;
(2) Penalty costs for prepayment of any preexisting mortgage recorded and entered into in
good faith encumbering such real property; and
(3) The pro rata portion ofreal property taxes paid which are allocable to a period subsequent
to vesting of title in the agency, or the effective date of possession of such real property by the
agency, whichever is earlier.
(b) Local taxing authorities shall accept prepayment of the agency's estimate of the amount of
any taxes not levied but constituting a lien against real estate acquired by the agency, or the
agency's estimate of its pro rata portion of such taxes, and such prepayment shall be applied to
such taxes upon levy being made. ( 1971, c. 1107, s. 1.)
§133-13. Administration.
(a) The agency may enter into contracts with any individual, firm, association or corporation
for services in connection with relocation assistance programs.
(b) The agency shall in carrying out relocation assistance activities utilize, whenever
practicable, the services of other State or local agencies having experience in the administration
or conduct in similar housing assistance activities.
( c) In acquisition of right-of-way for any State highway project, a municipality making the
acquisition shall be vested with the same authority to render such services and to make such
payments as is given the Board of Transportation in this Article. Such municipalities furnishing
right-of-way are authorized to enter into contracts with any other municipal corporation, or State
or federal agency, rendering such services. (1971, c. 1107, s. l; 1973, c. 507, s. 5.)
§133-14. Regulations and procedures.
The agency is authorized to adopt such rules and regulations as it deems necessary and
appropriate to carry out the provisions of this Article. The agency is authorized and empowered
to adopt all or any part of applicable federal rules and regulations which are necessary or
desirable to implement this Article. Such rules and regulations shall include, but not be limited
to, provisions relating to:
( 1) Payments authorized by this Article to assure that such payments shall be fair and
reasonable and as uniform as possible on those projects to which this Article is applicable;
(2) Prompt payment after a move to displaced persons who make proper application and are
entitled to payment, or, in hardship cases, payment in advance;
(3) Moving expense and allowances as provided for in G.S. 133 -8;
( 4) Standards for decent, safe and sanitary dwelling;
(5) Eligibility of displaced persons for relocation assistance payments, the procedure for such
persons to claim such payments, and the amounts thereof;
( 6) Procedure for an aggrieved displaced person to have his determination of eligibility or
amount of payment reviewed by the agency head or its administrative officer;
(7) Projects or classes of projects on which payments as herein provided will be made. ( 1971 ,
C. 1107, s. l; 1973, C. 1446, s. 8.)
§133-15. Payments not to be considered as income.
No payment received under this Article shall be considered as income for the purposes of the
State income tax law; nor shall such payments be considered as income or resources to any
recipient of public assistance and such payment shall not be deducted from the amount of aid to
which the recipient would otherwise be entitled under the provisions of Chapter 108 of the
General Statutes. (1971, c. 1107, s. 1.)
§133-16. Real property furnished to the federal government.
Whenever real property is acquired by an agency and furnished as a required contribution to a
federal project, the agency has the authority to make ally ayments and to provide all assistance in
the same manner and to the same extent as in cases of acquisition by the agency ofreal property
for a federal aid project. (1971 , c. 1107, s. 1.) ~
§ 133-17. Administrative payments.
Nothing contained in this Article shall be construed as creating in any condemnation
proceedings brought under the power of eminent domain, any element of damages not in
existence on the date of enactment ofthis Article. Payments made and services rendered under
this Article are administrative payments and in addition to just compensation as provided by the
law of eminent domain. Nothing contained in this Article shall be construed as creating any right
enforceable in any court and the determination of the agency under the procedure provided for in
G.S. 133-14 shall be conclusive and not subject to judicial review. (1971, c. 1107, s. 1.)
§ 133-18. Additional payments by political subdivision.
The additional payments required under G.S. 133-8, 133-9, and 133-10 shall not be
mandatory for political subdivisions of the State unless federal law makes such payments a
condition of federal funding. (1989, c. 28, s. 7.)
§ 133-23. Definition.
(a) The term "governmental agency" shall include the State of North Carolina, its agencies,
institutions, and political subdivisions, all municipal corporations and all other public units,
agencies and authorities which are authorized to enter into public contracts for construction or
repair or for procurement of goods or services.
(b) The term "person" shall mean any individual, partnership, corporation, association, or
other entity formed for the purpose of doing business as a contractor, subcontractor, or supr, ier.
( c) The term "subsidiary" shall mean a corporation with respect to which another corporation
by virtue of its shareholdings alone has legal power, either directly or indirectly through another
corporation or series of other corporations, domestic or foreign, to elect a majority of the
directors. A corporation is a subsidiary of each such corporation, including any corporation
through which this legal power may be indirectly exercised. ( 1981, c. 7 64, s. 1; 1991 (Reg. Sess.,
1992), C. 1030, S. 38.)
§133-24. Government contracts; violation of G.S. 75-1 and 75-2.
Every person who shall engage in any conspiracy, combination, or any other act in restraint of
trade or commerce declared to be unlawful by the provisions ofG.S. 75 -1 and 75-2 shall be
guilty of a felony under this section where the combination, conspiracy, or other unlawful act in
restraint of trade involves:
( 1) A contract for the purchase of equipment, goods, services or materials or for construction
or repair let or to be let by a governmental agency;
(2) A subcontract for the purchase of equipment, goods, services or materials or for
construction or repair with a prime contractor or proposed prime contractor for a governmental
agf}ncy. (1981 , c. 764, s. 1.)
§133-25. Conviction; punishment.
(a) Upon conviction of violating G.S. 133 -24, any person shall be punished as a Class H
felon. The court may also impose a fine ofup to one hundred thousand dollars ($100,000) on any
convicted individual and a fine of up to one million dollars ($1 ,000,000) on any convicted
corporation. Any fine imposed pursuant to this section shall not be deductible on a State income
tax return for any purpose.
(b) For a period ofup to three years from the date of conviction, said period to be determined
in the discretion of the court, no person shall be eligible to enter into a contract with any
governmental agency, either directly as a contractor or indirectly as a subcontractor, if that
person has been convicted of violating G.S. 133 -24.
(c) In the event an individual is convicted of violating G.S. 133-24, the court may, in its
discretion, for a period of up to three years from the date of conviction, provide that the
individual shall not be employed by a corporation as an officer, director, employee or agent, if
that corporation engages in public construction or repair contracts with a governmental agency,
either directly as a contractor or indirectly as a subcontractor.
( d) The court shall also have authority to direct the appropriate contractor's licensing board to
suspend the license ofany contractor convicted of violating G.S. 133 -24 for a period ofup to
three years from the date of conviction. (1981, c. 764, s. 1.)
§133-26. Individuals convicted may not serve on licensing boards.
No individual shall be eligible to serve as a member of any contractor's licensing board who
has been convicted of criminal charges involving either:
(1) A conspiracy in restraint of trade in the courts ofthis State in violation ofG.S. 75 -1, 75-2,
or 133-24, or similar charges in any federal court or in any other state court; or
(2) Bribery or commercial bribery in violation of G.S. 14 -218 or 14-353 in the courts ofthis
State, or of similar charges in any federal court or the court ofany other state. (1981 , c. 7 64, s.
1.)
§133-27. Suspension from bidding.
Any governmental agency shall have the authority to suspend for a period ofup to three years
from the date of conviction any person and any subsidiary or affiliate of any person from further
bidding to the agency and from being a subcontractor to a contractor for the agency and from
being a supplier to the agency if that person or any officer, director, employee or agent of that
person has been convicted of charges of engaging in any conspiracy, combination, or other
unlawful act in restraint of trade or of similar charges in any federal court or a court of any other
state.
A governmental agency may order a temporary suspension of any contractor, subcontractor,
or supplier or subsidiary or affiliate thereof charged in an indictment or an information with
engaging in any conspiracy, combination, or other unlawful act in restraint of trade or of similar
charges in any federal court or a court of this or any other state until the charges are resolved.
The provisions of this section are in addition to and not in derogation ofany other powers and
authority of any governmental agency. (1981, c. 764, s. 1.)
§ 133-28. Civil damages; liability; statute of limitations.
(a) Any governmental agency entering into a contract which is or has been the subject of a
conspiracy prohibited by G.S. 75 -1 or 75-2 shall have a right of action against the participants in
the conspiracy to recover damages, as provided herein. The governmental agency shall have the
option to proceed jointly and severally in a civil action against any one or more of the
participants for recovery of the full amount of the damages. There shall be no tight to
contribution among participants not named defendants by the governmental agency.
(b) At the election of the governmental agency, the measure of damages recoverable under
this section shall be either the actual damages or ten percent (10%) of the contract price which
shall be trebled as provided in G. S. 7 5 -16.
( c) The cause of action shall accrue at the time of d iscovery of the conspiracy by the
governmental agency which entered into the contract. The action shall be brought within six
years of the date ofaccrual of the cause of action. (1981, c. 764, s. l; 1993, c. 441.)
§133-29. Reporting of violations ofG.S. 75-1 or 75-2.
Any person having knowledge of acts committed in violation ofG.S. 75 -1 or 75-2 involving a
contract with a governmental agency who reports the same to that governmental agency and
assists in any resulting proceedings may receive a reward as set forth herein. The governmental
agency is authorized to pay to the informant up to twenty-five percent (25%) of any civil
damages that it collects from the violatot amed by the informant by reason of the information
furnished by the informant. The information and knowledge to be reported includes but is not
limited to any agreement or proposed agreement or offer or request for agreement among
contractors, subcontractors or suppliers to rotate bids, to share the profits with a contractor not
the low bidder, to sublet work in advance of bidding as a means of preventing competition, to
refrain from bidding, to submit prearranged bids, to submit complimentary bids, to set up
territories to restrict competition, or to alternate bidding. (1981, c. 764, s. 1.)
§133-30. Noncollusion affidavits.
Noncollusion affidavits may be required by rule of any governmental agency from all prime
bidders. Any such requirement shall be set forth in the invitation to bid. Failure of any bidder to
provide a required affidavit to the governmental agency shall be grounds for disqualification of
his bid. The provisions of this section are in addition to and not in derogation of any other
powers and authority of any governmental agency. (1981, c. 764, s. 1.)
§ 133-31. Perjury; punishment.
Any person who shall willfully commit perjury in any affidavit taken pursuant to this Article
or rules pursuant thereto shall be guilty of a felony and shall be punished as a Class I felon.
(1981, c. 764, s. l; 1993, c. 539, s. 1307; 1994, Ex. Sess., c. 24, s. 14(c).)
§ 133-32. Gifts and favors_regulated.
(a) It shall be unlawful for any contractor, subcontractor, or supplier who:
( 1) Has a contract with a governmental agency; or
(2) Has performed under such a contract within the past year; or
(3) Anticipates bidding on such a contract in the future
to make gifts or to give favors to any officer or employee of a governmental agency who is
charged with the duty of:
(I) Preparing plans, specifications, or estimates for public contract; or
(2) Awarding or administering public contracts; or
(3) Inspecting or supervising construction.
It shall also be unlawful for any officer or employee of a governmental agency who is charged
with the duty of:
( 1) Preparing plans, specifications, or estimates for public contracts; or
(2) Awarding or administering public contracts; or
(3) Inspecting or supervising construction
willfully to receive or accept any such gift or favor.
(b) A violation of subsection (a) shall be a Class 1 misdemeanor.
( c) Gifts or favors made unlawful by this section shall not be allowed as a deduction for
North Carolina tax purposes by any contractor, subcontractor or supplier or officers or
employees thereof
( d) This section is not intended to prevent the gift and receipt of honorariums for
participating in meetings, advertising items or souvenirs of nominal value, or meals furnished at
banquets. This section is not intended to prevent any contractor, subcontractor, or supplier from
making donations to professional organizations to defray meeting expenses where governmental
employees are members of such professional organizations, nor is it intended to prevent
governmental employees who are members of professional organizations from participation in
all scheduled meeting functions available to all members of the professional organization
attending the meeting. This section is also not intended to prohibit customary gifts or favors
between employees or officers and their friends and relatives or the friends and relatives of their
spouses, minor children, or members of their household where it is clear that it is that
relationship rather than the business of the individual concerned which is the motivating factor
for the gift or favor. However, all such gifts knowingly made or received are required to be
reported by the donee to the agency head if the gifts are made by a contractor, subcontractor, or
supplier doing business directly or indirectly with the governmental agency employing the
recipient of such a gift. (1981, c. 764, s. l; 1987, c. 399; 1993, c. 539, s. 970; 1994, Ex. Sess., c.
24, s. 14(c).)
§133-33. Cost estimates; bidders' lists.
Any governmental agency responsible for letting public contracts may promulgate rules
concerning the confidentiality of:
( 1) The agency's cost estimate for any public contracts prior to bidding; and
(2) The identity of contractors who have obtained propo sals for bid purposes for a public
contract.
If the agency's rules require that such information be kept confidential, an employee or officer
of the agency who divulges such information to any unauthorized person shall be subject to
disciplinary action. This section shall not be construed to require that cost estimates or bidders'
lists be kept confidential. (1981 , c. 764, s. 1.)
CID\PTER 89C.
Engineering and Land Surveying.
§89C-1. Short title.
This Chapter shall be known and may be cited as "The North Carolina Engineering and Land
Surveying Act." (1951 , c. 1084, s. l ; 1975, c. 681 , s. 1.)
§ 89C-2. Declarations; prohibitions.
In order to safeguard life, health, and property, and to promote the public welfare, the practice
of engineering and the practice ofland surveying in this State are hereby declared to be subject
to regulation in the public interest. It shall be unlawful for any person to practice or to offer to
practice engineering or land surveying in this State, as defined in the provisions of this Chapter,
or to use in connection with the person's name or otherwise assume or advertise any title or
description tending to convey the impressfon that the person is either a professional engineer o a
professional land surveyor, unless the person has been duly licensed. The right to engage in the
practice of engineering or land surveying is a personal right, based on the qualifications of the
person as evidenced by the person's certificate oflicensure, which shall not be transferable.
(1921, C. 1, s. l; C.S., s. 6055(b); 1951, C. 1084, s. l; 1975, C. 681, s. l; 1998-118, s. 1.)
§ 89C-3. Definitions.
The following definitions apply in this Chapter:
(1) Board. --The North Carolina State Board of Examiners for Engineers and
Surveyors provided for by this Chapter.
(la) Business firm. --A partnership, firm, association, or another organization or
group that is not a corporation and is acting as a unit.
(2) Engineer. --A person who, by reason of special know ledge and use of the
mathematical, physical and engineering sciences and the principles and methods of engineering
analysis and design, acquired by engineering education and engineering experience, is qualified
to practice engineering.
(3) Engineering intern. --A person who complies with the requirements for
education, experience and character, and has passed an examination in the fundamental
engineering subjects, as provided in this Chapter.
(3a) Inactive licensee. --Licensees who are not engaged in the practice of
engineering or land surveying in this State.
( 4) Land surveyor intern. --A person who has qualified for, taken, and passed
an examination on the basic disciplines ofland surveying as provided in this Chapter.
(5) Person. --Any natural person, firm, partnership, corporation or other legal
entity.
(6) Practice of engineering. --
a. Any service or creative work, the adequate performance of which
requires engineering education, training, and experience, in the application of special knowledge
of the mathematical, physical, and engineering sciences to such services or creative work as
consultation, investigation, evaluation, planning, and design of engineering works and systems,
planning the use ofland and water, engineering surveys, and the observation of construction for
the purposes of assuring compliance with drawings and specifications, including the
consultation, investigation, evaluation, planning, and design for either private or public use, in
connection with any utilities, structures, buildings, machines, equipment, processes, work
systems, projects, and industrial or consumer products or equipment of a mechanical, electrical,
hydraulic, pneumatic or thermal nature, insofar as they involve safeguarding life, health or
property, and including such other professional services as may be necessary to the planning,
progress and completion of any engineering services.
A person shall be construed to practice or offer to practice engineering,
within the meaning and intent of this Chapter, who practices any branch of the profession of
engineering; or who, by verbal claim, sign, advertisement, letterhead, card, or in any other way
represents the person to be a professional engineer, or through the use of some other title implies
that the person is a professional engineer or that the person is licensed under this Chapter; or who
holds the person out as able to perform, or who does perform any engineering service or work
not exempted by this Chapter, or any other service designated by the practitioner which is
recognized as engineering.
b. The term "practice of engineering" shall not be construed to permit
the location, description, establishment or reestablishment of property lines or descriptions of
land boundaries for conveyance. The term does not include the assessment of an underground
storage tank required by applicable rules at closure or change in service unless there has been a
discharge or release of the product from the tank.
(7) Practice of land surveying. --
a. Providing professional services such as consultation, investigation,
testimony, evaluation, planning, mapping, assembling, and interpreting reliable scientific
measurements and information relative to the location, size, shape, or physical features of the
earth, improvements on the earth, the space above the earth, or any part of the earth, whether the
gathering of information for the providing of these services is accomplished by conventional
ground measurements, by aerial photography, by global positioning via satellites, or by a
combination of any of these methods, and the utilization and development of these facts and
interpretations into an orderly survey map, plan, report, description, or project. The practice of
land surveying includes the following:
I .Locating, relocating, establishing, laying out, or retracing any property line, ea
2.Locating, relocating, establishing, or laying out the alignment or elevation of:
3.Making any survey for the subdivision of any tract ofland, including the topo,
4.Determining, by the use of the principles o fland surveying, the position for ar
5.Determining the configuration or contour of the earth's surface or the position
6.Providing geodetic surveying which includes surveying for determination of tl
7.Creating, preparing, or modifying electronic or computerized data, including l
b. The term "practice ofland surveying" shall not be construed to
permit the design or preparation of specifications for (i) major highways; (ii) wastewater
systems; (iii) wastewater or industrial waste treatment works; (iv) pumping or lift stations; (v)
water supply, treatment, or distribution systems; (vi) streets or storm sewer systems except as
incidental to a subdivision.
(8) Professional engineer. --A person who has been duly licensed as a
professional engineer by the Board established by this Chapter.
(8a) Professional engineer, retired. --A person who has been duly licensed as a
professional engineer by the Board and who chooses to relinquish or not to renew a license and
who applies to and is approved by the Board to be granted the use of the honorific title
"Professional Engineer, Retired".
(9) Professional land surveyor. --A person who, by reason of special
knowledge of mathematics, surveying principles and methods, and legal requirements which are
acquired by education and/or practical experience, is qualified to engage in the practice ofland
surveying, as attested by the person's licensure as a professional land surveyor by the Board.
(9a) Professional land surveyor, retired. --A person who has been duly licensed
as a professional land surveyor by the Board and who chooses to relinquish or not to renew a
license and who applies to and is approved by the Board to be granted the use of the honorific
title "Professional Land Surveyor, Retired".
( 10) Responsible charge. --Direct control and personal supervision, either of
engineering work or ofland surveying, as the case may be. (1951, c. 1084, s. l; 1953, c. 999, s.
l; 1973, c. 449; 1975, c. 681, s. l; 1993 (Reg. Sess., 1994), c. 671, s. l; 1996, 2nd Ex. Sess., c.
18, s. 7. l0(i); 1998-118, s. 2.)
§ 89C-4. State Board of Examiners for Engineers and Surveyors; appointment; terms.
A State Board of Examiners for Engineers and Surveyors, whose duty it is to administer the
provisions of this Chapter, is created. The Board shall consist of four licensed professional
engineers, three licensed professional land surveyors and two public members, who are neither
professional engineers nor professional land surveyors. Of the land surveyor members, one and
only one may hold dual licenses as a professional land surveyor and professional engineer. All of
the members shall be appointed by the Governor. Appointments of the engineer and land
surveyor members shall preferably, but not necessarily, be made from a list of nominees
submitted by the professional societies for engineers and land surveyors in this State. Each
member of the Board shall receive a certificate of appointment from the Governor and shall file
with the Secretary of State a written oath or affirmation for the faithful discharge of the duties.
Members of the Board serve for staggered five-year terms, and no member may be appointed
for more than two full terms. Members serve until the expiration of their respective terms and
until their respective successors are appointed. If a vacancy occurs during a term, the Governor
shall appoint a successor from the same classification as the person causing the vacancy to serve
for the remainder of the unexpired term. If the vacancy is not filled within 90 days after it occurs,
the Board may appoint a provisional member to serve until the appointment by the Governor
becomes effective. The provisional member during his tenure has all the powers and duties of a
regular member. (1921, c. 1, ss. 3-6; C.S., ss. 6055(d)-6055(g); 1951, c. 1084, s. l; 1957, c.
1060, s. l; 1963, C. 843; 1965, C. 940; 1975, C. 681, s. l; 1979, C. 819, s. l; 1998-118, s. 3.)
§ 89C-5. Board members; qualifications.
Each engineer member of the Board shall be a resident of North Carolina and shall be a
licensed professional engineer engaged in the lawful practice of engineering in North Carolina
for at least six years.
Each land surveyor member of the Board shall be a resident of North Carolina and shall be a
licensed professional land surveyor engaged in the lawful practice ofland surveying in North
Carolina for at least six years.
Each public member of the Board shall be a resident of North Carolina. (1921, c. 1, s s. 3-6;
C.S., ss. 6055(d)-6055(g); 1951, C. 1084, s. l; 1957, C. 1060, s. l; 1963, C. 843; 1965, C. 940;
1975, C. 681, S. l; 1979, C. 819, S. 2; 1989, C. 108; 1998-118, S. 4.)
§ 89C-6. Compensation and expenses of Board members.
Each member of the Board, when attending to the work of the Board or any of its committees,
shall receive as compensation for services the per diem and, in addition, shall be reimbursed for
travel expenses and incidentals not exceeding the maximum set forth by law. In addition to per
diem allowances, travel and incidentals, the secretary of the Board may, with the approval of the
Board, receive such reasonable additional compensation as is compatible with the actual hours of
work required by the duties of the office. (1921, c. 1, ss. 3-6; C.S., ss. 6055(d)-6055(g); 1951 , c.
1084, s. l; 1957, C. 1060, s. l; 1963, C. 843; 1965, C. 940; 1975, C. 681 , s. l; 1998-118, s. 5.)
§89C-7. Vacancies; removal of member.
The Governor may remove any member of the Board for misconduct, incomp etency, neglect
of duty, or any sufficient cause, in the manner prescribed by law for removal of State officials.
Vacancies in the membership of the Board shall be filled for the unexpired term by appointment
by the Governor as provided in G.S. 89C-4. (1921, c. 1, ss. 3-6; C.S., ss. 6055(d)-6055(g); 1951,
C. 1084, s. l; 1957, C. 1060, s. l; 1963, C. 843; 1965, C. 940; 1975, C. 681, s. 1.)
§ 89C-8. Organization of the Board; meetings; election of officers.
The Board shall hold at least two regular meetings each year. Special meetings may be held at
such times and upon such notice as the rules and regulations of the Board may provide. The
Board shall elect annually from its members a chair, a vice-chair, and a secretary. A quorum of
the Board shall consist of not less than five members. The Board shall operate under its rules and
regulations supplemented by Robert's Rules of Order. (1921, c. 1, ss. 3-6; C.S., ss. 6055(d)-
6055(g); 1951 , C. 1084, S. 1; 1957, C. 1060, S. 1; 1963, C. 843; 1965, C. 940; 1975, C. 681, S. l;
1998-118, s. 6.)
§ 89C-9. Executive director; duties and liabilities.
The Board shall employ an executive director who is not a member of the Board. The
executive director shall be a full-time employee of the Board and perform the duties assigned to
the director by the secretary subject to the approval of the Board. The executive director shall
receive a salary and compensation fixed by the Board. The executive director shall give a surety
bond satisfactory to the Board conditioned upon the faithful performance of the director's duties
assigned. The premium on the bond shall be a necessary and proper expense of the Board. (1921,
C. 1, ss. 3-6; C.S., ss. 6055(d)-6055(g); 1951, C. 1084, s. l ; 1957, C. 1060, s. l; 1963, C. 843;
1965 , C. 940; 1975, c. 681, s. l ; 1998-118, s. 7.)
§ 89C-10. Board powers.
(a) The Board may adopt and amend all rules and rules of procedure as may be reasonably
necessary for the proper performance of its duties, the regulation of its procedures, meetings,
records, the administration of examinations, and the authority to enforce the rules of professional
conduct as may be adopted by the Board pursuant to G.S. 89C-20.
The action by the Board in carrying out any of the powers specified in this section shall be
binding upon all persons licensed under this Chapter, including corporations and business firms
holding certificates of authorization.
(b) The Board shall adopt and have an official seal, which shall be affixed to each certificate
issued.
(c) The Board may in the name of the State apply for relief, by injunction, in the established
manner provided in cases of civil procedure, without bond, to enforce the provisions of this
Chapter, or to restrain any violation of the provisions of this Chapter. In proceedings for
injunctive relief, it shall not be necessary to allege or prove either that an adequate remedy at law
does not exist, or that substantial or irreparable damage would result from the continued
violation of the provisions of this Chapter. The members of the Board shall not be personally
liable under this proceeding.
( d) The Board may subject an applicant for licensure to any examination necessary to
determine the applicant's qualifications.
( e) The Board may issue an appropriate certificate oflicensure to any applicant who, in the
opinion of the Board, has met the requirements of this Chapter.
(t) It shall be the responsibility and duty of the Board to conduct a regular program of
investigation concerning all matters within its jurisdiction under the provisions of this Chapter.
The investigation of a licensee is confidential until the Board issues a citation to the licensee.
The Board may expend its funds for salaries, fees, and per diem expenses, in connection with its
investigations, provided that no funds other than per diem expenses shall be paid to any member
of the Board in connection with its investigations, nor may any member of the Board give
testimony and later sit in deciding on any matter which may directly involve punitive action for
the testimony.
(g) The Board may use its funds to establish and conduct instructional programs for persons
who are currently licensed to practice engineering or land surveying, as well as refresher courses
for persons interested in obtaining adequate instruction or programs of study to qualify them for
licensure to practice engineering or land surveying. The Board may expend its funds for these
purposes and may not only conduct, sponsor, and arrange for instructional programs, but also
may carry out instructional programs through extension courses or other media. The Board may
enter into plans or agreements with community colleges, public or private institutions of higher
learning, State and county boards of education, or with the governing authority of any industrial
education center for the purpose of planning, scheduling or arranging courses, instruction,
extension courses, or in assisting in obtaining courses of study or programs in the field of
engineering and land surveying. The Board shall encourage the educational institutions in this
State to offer courses necessary to complete the educational requirements of this Chapter. For the
purpose of carrying out these objectives, the Board may adopt rules as may be necessary for the
educational programs, instruction, extension services, or for entering into plans or contracts with
persons or educational and industrial institutions.
(h) The Board may license sponsors of continuing professional compet ency activities who
agree to conduct programs in accordance with standards adopted by the Board. Sponsors shall
pay a license fee established by the Board, not to exceed two hundred fifty dollars ($250.00) for
licensure under this subsection. The license fee shall accompany the application. Sponsors shall
renew their licenses annually on a form provided by the Board. (1921, c. 1, ss. 3-6; C.S., ss.
6055(d)-6055(g); 1951, C. 1084, s. l; 1957, C. 1060, s. l; 1963, C. 843; 1965, C. 940; 1975, C.
681, s. l; 1985 (Reg. Sess., 1986), c. 977, s. 16; 1993 (Reg. Sess., 1994), c. 671, s. 8; 1998-118,
s. 8.)
§ 89C-11. Secretary; duties and liabilities; expenditures.
The secretary of the Board shall receive and account for all moneys derived from the
operation of the Board as provided in this Chapter, and shall deposit them in one or more special
funds in banks or other financial institutions carrying deposit insurance and authorized to do
business in North Carolina. The fund or funds shall be designated as "Fund of the Board of
Examiners for Engineers and Surveyors" and shall be drawn against only for the purpose of
implementing provisions of this Chapter as herein provided. All expenses certified by the Board
as properly and necessarily incurred in the discharge of its duties, including authorized
compensation, shall be paid out of this fund on the warrant signed by the secretary of the Board.
At no time shall the total of warrants issued exceed the total amount of funds accumulated under
this Chapter. The secretary of the Board shall give a surety bond satisfactory to the State Board
of Examiners for Engineers and Surveyors, conditioned upon the faithful performance of the
duties assigned. The premium on the bond is a proper and necessary expense of the Board. The
secretary of the Board may delegate to the executive director certain routine duties, such as
receipt and disbursement of funds in stated amounts by a written authorization, which has the
unanimous approval of the Board. (1921, c. 1, s. 7; C.S., s. 6055(h); 1951, c. 1084, s. I; 1959, c.
617; 1975, C. 681, s. I; 1998-118, s. 9.)
§ 89C-12. Records and reports of Board; evidence.
The Board shall keep a record of its proceedings and a register of all applicants for licensure,
showing for each the date of application, name, age, education, and other qualifications, place of
business and place ofresidence, whether the applicant was rejected or a certificate of licensure
granted, and the date licensure was rejected or granted. The books and register of the Board shall
be prima facie evidence of all matters recorded by the Board, and a copy duly certified by the
secretary of the Board under seal shall be admissible in evidence as if the original were
produced. A roster showing the names and places of business and ofresidence of all licensed
professional engineers and all licensed professional land surveyors shall be prepared by the
secretary of the Board current to the month of January of each year. The roster shall be printed
by the Board out of the Board's fund and distributed as described in the Board's rules. On or
before the first day of May of each year, the Board shall submit to the Governor a report on its
transactions for the preceding year, and shall file with the Secretary of State a copy of the report,
together with a complete statement of the receipts and expenditures of the Board attested by the
chair and the secretary and a copy of the the roster oflicensed professional engineers and
professionallandsurveyors. (1921, c. 1, s. 8; C.S., s. 6055(i); 1951, c. 1084, s. I; 1975, c. 681, s.
I; 1998-118, s. 10.)
§ 89C-13. General requirements for licensure.
(a) Engineer Applicant. --To be eligible for licensure as a professional engineer, an applicant
must be of good character and reputation. An applicant desiring to take the examination in the
fundamentals of engineering must submit three character references, one of whom shall be a
professional engineer. An applicant desiring to take the examination in the principles and
practice of engineering must submit five references, two of whom shall be professional engineers
having personal knowledge of the applicant's engineering experiences.
The following shall be considered as minimum evidence satisfactory to the Board that the
applicant is qualified for licensure:
(1) As a professional engineer (shall meet one):
a. Licensure by Comity or Endorsement. --A person holding a
certificate oflicensure to engage in the practice of engineering, on the basis of comparable
qualifications, issued to the person by a proper authority of a state, territory, or possession of the
United States, the District of Columbia, or of Canada, who completes an application for licensure
and submits five references, two of which shall be from professional engineers having personal
knowledge of the applicant's engineering experience, and who, in the opinion of the Board,
meets the requirements of this Chapter, based on verified evidence may, upon application, be
licensed without further examination.
A person holding a certificate of qualification issued by the
Committee on National Engineering Certification of the National Council of Examiners for
Engineering and Surveying whose qualifications meet the requirements of this Chapter, may
upon application, be licensed without further examination.
b. E.I. Certificate, Experience, and Examination. --A holder of a
certificate of engineering intern issued by the Board, and with a specific record of an additional
four years or more of progressive experience on engineering projects of a grade and character
which indicates to the Board that the applicant may be competent to practice engineering, shall
be admitted to the principles and practice of engineering examination. Upon passing the
examination, the applicant shall be granted a certificate oflicensure to practice professional
engineering in this State, provided the applicant is otherwise qualified.
c. Graduation, Experience, and Examination. --A graduate of an
engineering curriculum of four years or more approved by the Board as being of satisfactory
standing, and with a specific record of an additional four years or more of progressive experience
on engineering projects of a grade and character which indicates to the Board that the applicant
may be competent to practice engineering, shall be admitted to the fundamentals of engineering
examination, and the principles and practice of engineering examination. Upon passing the
examinations, the applicant shall be granted a certificate oflicensure to practice professional
engineering in this State, provided the applicant is otherwise qualified.
d. Graduation, Experience, and Examination. --A graduate of an
engineering or related science curriculum of four years or more, other than the ones approved by
the Board as being of satisfactory standing or with an equivalent education and engineering
experience satisfactory to the Board and with a specific record of eight years or more of
progressive experience on engineering projects of a grade and character which indicates to the
Board that the applicant may be competent in the fundamentals of engineering, shall be admitted
to the fundamentals of engineering examination and the principles and practice of engineering
examination. Upon passing the examinations, the applicant shall be granted a certificate of
licensure to practice professional engineering in this State, provided the applicant is otherwise
qualified.
e. Long-Established Practice. --A person with a specific record of 20
years or more of progressive experience on engineering projects of a grade and character which
indicates to the Board that the applicant may be competent to practice engineering shall be
admitted to the principles and practice of engineering examination. Upon passing the
examination, the applicant shall be granted a certificate oflicensure to practice professional
engineering in this State, provided the applicant is otherwise qualified.
At its discretion the Board may require an applicant to submit exhibits, drawings, designs, or
other tangible evidence of engineering work which the applicant personally accomplished or
supervised.
The following shall be considered as minimum evidence that the applicant is qualified for
certification:
(2) As an engineering intern (shall meet one):
a. Graduation and Examination. --A graduate of an engineering
curriculum or related science curriculum of four years or more, approved by the Board as being
of satisfactory standing, or a student who has attained senior status in an accredited engineering
program, shall be admitted to the fundamentals of engineering examination. The applicant shall
be notified if the examination was passed or not passed and if passed he shall be certified as an
engineering intern if th~ applicant is otherwise qualified.
b. Graduation, Experience, and Examination. --A graduate of an
engineering or related science curriculum of four years or more, other than the ones approved by
the Board as being of satisfactory standing, or with equivalent education and engineering
experience satisfactory to the Board and with a specific record of four or more years of
progressive experience on engineering projects of a grade and character satisfactory to the Board,
shall be admitted to the fundamentals of engineering examination. The applicant shall be notified
if the examination was passed or not passed and if passed, the applicant shall be certified as an
engineering intern if the applicant is otherwise qualified.
(b) Land Surveyor Applicant. --To be eligible for admission to examination for land
surveyor intern or professional land surveyor, an applicant must be of good character and
reputation and shall submit five references with the application for licensure as a land surveyor,
two of which references shall be professional land surveyors having personal knowledge of the
applicant's land surveying experience, or in the case of an application for certification as a land
surveyor intern by three references, one of which shall be a licensed land surveyor having
personal knowledge of the applicant's land surveying experience.
The evaluation of a land surveyor applicant's qualifications shall involve a consideration of
the applicant's education, technical and land surveying experience, exhibits ofland surveying
projects with which the applicant has been associated, and recommendations by references. The
land surveyor applicant's qualifications may be reviewed at an interview if the Board determines
it necessary. Educational credit for institute courses, correspondence courses, or other courses
shall be determined by the Board.
The following shall be considered a minimum evidence satisfactory to the Board that the
applicant is qualified for licensure as a professional land surveyor or for certification as a land
surveyor intern respectively:
(1) As a professional land surveyor (shall meet one):
a. Rightful possession of a bachelor of science degree in surveying or
other equivalent curricula, all approved by the Board and a record satisfactory to the Board of
two years or more of progressive practical experience, one year of which shall have been under a
practicing professional land surveyor and satisfactorily passing any oral and written examination
required by the Board, all of which shall determine and indicate that the applicant is competent
to practice land surveying. The applicant may be qualified by the Board to take the first
examination (Surveying Fundamentals) immediately after obtaining the bachelor of science
degree at the first regularly scheduled examination thereafter. Upon passing the first examination
and successful completion of the experience required by this subdivision, the applicant may
apply to take the second examination (Principles and Practice of Land Surveying). An applicant
who passes both examinations and completes the educational and experience requirements of this
subdivision shall be granted licensure as a professional land surveyor.
b. Rightful possession of an associate degree in surveying technology
approved by the Board and a record satisfactory to the Board of four years of progressive
practical experience, three years of which shall have been under a practicing licensed land
surveyor, and satisfactorily passing any written and oral examination required by the Board, all
of which shall determine and indicate that the applicant is competent to practice land surveying.
The applicant may apply to the Board to take the first examination (Surveying Fundamentals)
immediately after obtaining the associate degree at the first regularly scheduled examination
thereafter. Upon passing the first examination and successfully completing the practical
experience required under this subdivision, the applicant may apply to the Board to take the
second examination (Principles and Practice of Land Surveying). An applicant who passes both
examinations and successfully completes the educational and experience requirements of this
subdivision shall be granted licensure as a professional land surveyor.
c. Repealed by Session Laws 1998-118, s. 11.
d. Graduation from a high school or the completion of a high school
equivalency certificate and a record satisfactory to the Board of seven years of progressive
practical experience, six years of which shall have been under a practicing licensed land
surveyor, and satisfactorily passing any oral and written examinations required by the Board, all
of which shall determine and indicate that the candidate is competent to practice land surveying.
The applicant may be qualified by the Board to take the first examination (Surveying
Fundamentals) upon graduation from high school or the completion of a high school equivalency
certificate and successfully completing five years of progressive practice experience, four of
which shall have been under a practicing licensed land surveyor.
e. Repealed by Session Laws 1985 (Regular Session, 1986), c. 977, s.
7.
f Licensure by Comity or Endorsement. --A person holding a
certificate oflicensure to engage in the practice ofland surveying issued on comparable
qualifications from a state, territory, or possession of the United States will be given comity
considerations. However, the applicant may be asked to take any examinations as the Board
requires to determine the applicant's qualifications, but in any event, the applicant shall be
required to pass an examination which shall include questions on laws, procedures, and practices
pertaining to the practice ofland surveying in North Carolina.
g. A licensed professional engineer who can satisfactorily demonstrate
to the Board that the professional engineer's formal academic training in acquiring a degree and
field experience in engineering includes land surveying, to the extent necessary to reasonably
qualify the applicant in the practice ofland surveying, may apply for and may be granted
permission to take the principles and practice ofland surveying examination and the
fundamentals ofland surveying examination. Upon satisfactorily passing the examinations, the
applicant shall be granted a license to practice land surveying in the State of North Carolina.
h. Professional Engineers in Land Surveying. --Any person presently
licensed to practice professional engineering under this Chapter shall upon application be
licensed to practice land surveying, providing a written application is filed with the Board within
one year next after June 19, 1975.
i. Photogrammetrists. --Any person presently practicing
photogrammetry with at least seven years of experience in the profession, two or more of which
shall have been in responsible charge of photogrammetric mapping projects meeting National
Map Accuracy Standards shall, upon application, be licensed to practice land surveying,
provided:
1. The applicant submit certified proof of graduation from high school, high s chi
2. The applicant submit proof of employment in responsible charge as a photogra
five projects completed by the applicant with the State. A final map for one of the five projects
shall also be submitted;
3.Five references to the applicant's character and quality of work, three ofwhicl
4.The application is submitted to the Board by July I, 1999. After July 1, 1999,
The Board shall require an applicant to submit exhibits, drawings, plats or
other tangible evidence of land surveying work executed by the applicant under proper
supervision and which the applicant has personally accomplished or supervised.
Land surveying encompasses a number of disciplines including geodetic
surveying, hydrographic surveying, cadastral surveying, engineering surveying, route surveying,
photogrammetric (aerial) surveying, and topographic surveying. A professional land surveyor
shall practice only within the surveyor's area of expertise.
(2) As a land surveyor intern (shall meet one):
a. Rightful possession of an associate degree in surveying technology
approved by the Board and satisfactorily passing a written and oral examination as required by
the Board.
b. Rightful possession of a bachelors degree in surveying or other
equivalent curricula in surveying all approved by the Board and satisfactorily passing any oral
and written examinations required by the Board.
c. Graduation from high school or the completion of a high school
equivalency certificate and a record satisfactory to the Board of five years of progressive,
practical experience, four years of which shall have been under a practicing licensed land
surveyor and satisfactorily passing any oral and written examinations required by the Board.
The Board shall require an applicant to submit exhibits, drawings, plats,
or other tangible evidence ofland surveying work executed by the applicant under proper
supervision and which the applicant has personally accomplished or supervised. (1921 , c. 1, s. 9;
C.S., s. 6055(i); 1951 , C. 1084, s. 1; 1953, C. 999, s. 2; 1957, C. 1060, ss. 2, 3; 1975, C. 681, s. l;
1985 (Reg. Sess., 1986), c. 977, ss. 1-15; 1993 (Reg. Sess., 1994), c. 671 , s. 2; 1995 , c. 509, s.
36.1; 1998-118, s. 11 ; 1998-217, s. 41.)
§ 89C-14. Application for licensure; license fees.
(a) Application for licensure as a professional engineer or professional land surveyor shall be
on a form prescribed and furnished by the Board. It shall contain statements made under oath,
showing the applicant's education and a detailed summary of the applicant's technical and
engineering or land surveying experience, and shall include the names and complete mailing
addresses of the references, none of whom may be immediate members of the applicant's family
or members of the Board.
The Board may accept the certified information on the copy of a current formal certificate of
qualifications issued by the National Council of Examiners for Engineering and Surveying in
lieu of the same information that is required for the form prescribed and furnished by the Board.
(b) An applicant for licensure who is required to take the written examination shall pay to the
Board an application fee not to exceed one hundred dollars ($100.00). The Board may charge
any fee necessary to defray the cost of any required examinations. The fee shall accompany the
application. The fee for comity licensure of engineers and land surveyors who hold unexpired
certificates in another state or a territory of the United States or in Canada shall be the total
current fee as fixed by the Board.
( c) The certification fee for a corporation is the amount set by the Board but shall not exceed
one hundred dollars ($ 100.00). The fee shall accompany the application. The certification fee for
a business firm is the same as the fee for a corporation. The fee for renewal of a certificate of
licensure of a corporation is the amount set by the Board but shall not exceed seventy-five
dollars ($75.00). The fee for renewal of a certificate oflicensure for a business firm is the same
as the renewal fee for a corporation.
( d) Should the Board deny the issuance of a certificate oflicensure to any applicant, the
uno bligated portion of fees paid shall be returned by the Board to the applicant.
( e) A candidate failing an examination may apply, and be consi dered by the Board, for
reexamination at the end of six months. The Board shall make such reexamination charge as is
necessary to defray the cost of the examination.
A candidate with a combination of three failures or unexcused absences on an examination
shall only be eligible after submitting a new application with appropriate application fee, and be
considered by the Board for reexamination at the end of 12 months. After the end of the 12-
month period, the applicant may take the examination no more than once every calendar year.
(1921, C. 1, s. 9; C.S., s. 6055(j); 1951, C. 1084, s. l; 1953, C. 999, s. 2; 1957, C. 1060, ss. 2, 3;
1975, c. 681, s. l; 1981, c. 230; 1983, c. 183, ss. 1, 2; 1993 (Reg. Sess., 1994), c. 671, s. 5; 1996,
2nd Ex. Sess., c. 18, s. 7.l0(k); 1998-118, s. 12.)
§ 89C-15. Examinations.
(a) The examinations will be held at the times and places as the Board directs. The Board
shall determine the passing grade on examinations. All examinations shall be approved by the
entire Board.
(b) Written examinations will be given in sections and may be taken only after the applicant
has met the other minimum requirements as given in G. S. 89C-l 3 and has been approved by the
Board for admission to the examination as follows:
( 1) Engineering Fundamentals. --Consists of an eight-hour examination on the
fundamentals of engineering. Passing this examination qualifies the applicant for an engineering
intern certificate, provided the applicant has met all other requirements for licensure required by
this Chapter.
(2) Principles and Practice of Engineering. --Consists ofan eight-hour
examination on applied engineering. Passing this examination qualifies the applicant for
licensure as a professional engineer, provided the applicant has met the other requirements for
registration required by this Chapter.
(3) Surveying Fundamentals. --Consists of an eight-hour examination on the
elementary disciplines ofland surveying. Passing this examination qualifies the applicant for a
land surveyor intern certificate provided the applicant has met all other requirements for
certification required by this Chapter.
(4) Principles and Practices of Land Surveying. --Consists of a six-hour
examination on the basic and applied disciplines ofland surveying and a two-hour examination
on requirements specific to the practice ofland surveying in North Carolina. Passing each of
these examinations qualifies the applicant for a professional land surveyor certificate provided
the applicant has met all other requirements for certification required by this Chapter. ( 1975, c.
681, s. l; 1998-118, s. 13.)
§ 89C-16. Certificates of licensure; effect; seals.
(a) The Board shall issue to any applicant, who, in the opinion of the Board, has met the
requirements of this Chapter, a certificate oflicensure giving the licensee proper authority to
practice the profession in this State. The certificate of licensure for a professional engineer shall
carry the designation "professional engineer," and for a land surveyor, "professional land
surveyor," shall give the full name of the licensee with the Board designated licensure number
and shall be signed by the chair and the secretary under the seal of the Board.
(b) This certificate shall be prima facie evidence that the person named on the certificate is
entitled to all rights, privileges and responsibilities of a professional engineer or a professional
land surveyor, while the certificate oflicensure remains unrevoked or unexpired.
( c) Each licensee shall upon licensure obtain a seal of a design authorized by the Board
bearing the licensee's name, license number, and the legend, "professional engineer," or
"professional land surveyor." Final drawings, specifications, plans and reports prepared by a
licensee shall, when issued, be certified and stamped with the seal or facsimile of the seal unless
the licensee is exempt under the provisions of G.S. 89C-25(7). It shall be unlawful for a licensee
to affix, or permit the licensee's seal and signature or facsimile of the seal and signature to be
affixed to any drawings, specifications, plans or reports after the expiration of a certificate or for
the purpose of aiding or abetting any other person to evade or attempt to evade any provision of
this Chapter. A professional engineer practicing land surveying shall use the licensee's land
surveyor seal. (1921, c. 1, s. 11 ; C.S., s. 6055(m); 1951, c. 1084, s. l ; 1957, c. 1060, s. 6; 1975, c.
681, s. l; 1998-118, s. 14.)
§ 89C-17. Expirations and renewals of certificates.
Certificates for licensure shall expire on the last day of the month of December next following
their issuance or renewal, and shall become invalid on that date unless renewed. When necessary
to protect the public health, safety, or welfare, the Board shall require any evidence necessary to
establish the continuing competency of engineers and land surveyors as a condition of renewal of
licenses. When the Board is satisfied as to the continuing competency of an applicant, it shall
issue a renewal of the certificate upon payment by the applicant of a fee fixed by the Board but
not to exceed seventy-five dollars ($75.00). The secretary of the Board shall notify by mail every
person licensed under this Chapter of the date of expiration of the certificate, the amount of the
fee required for its renewal for one year, and any requirement as to evidence of continued
competency. The notice shall be mailed at least one month in advance of the expiration date of
the certificate. Renewal shall be effected at any time during the month of January immediately
following, by payment to the secretary of the Board of a renewal fee, as determined by the
Board, which shall not exceed seventy-five dollars ($7 5.00). Failure on the part of any registrant
to renew the certificate annually in the month of January, as required above, shall deprive the
registrant of the right to practice until renewal has been effected. Renewal may be effected at any
time during the first 12 months immediately following its invalidation by payment of the
established renewal fee and a late penalty of one hundred dollars ($100.00). Failure of a licensee
to renew the license for a period of 12 months shall require the individual, prior to resuming
practice in North Carolina, to submit an application on the prescribed form, and to meet all other
requirements for licensure as set forth in Chapter 89C. The secretary of the Board is instructed to
remove from the official roster of engineers and land surveyors the names of all licensees who
have not effected their renewal by the first day of February immediately following the date of
their expiration. The Board may adopt rules to provide for renewals in distress or hardship cases
due to military service, prolonged illness, or prolonged absence from the State, where the
applicant for renewal demonstrates to the Board that the applicant has maintained active
knowledge and professional status as an engineer or land surveyor, as the case may be. It shall be
the responsibility of each licensee to inform the Board promptly concerning change in address. A
licensee may request and be granted inactive status. No inactive licensee may practice in this
State unless otherwise exempted in this Chapter. A licensee granted inactive status shall pay
annual renewal fees but shall not be subject to annual continuing professional competency
requirements. A licensee granted inactive status may return to active status by meeting all
requirements of the Board, including demonstration of continuing professional competency as a
condition ofreinstatement. (1921, c. 1, s. 9; C.S., s. 6055(k); 1951, c. 1084, s. 1; 1953, c. 1041, s.
9; 1957, C. 1060, S. 4; 1973, C. 1321; C. 1331, S. 3; 1975, C. 681, S. l; 1979, C. 819, SS. 3, 4; 1985,
C. 373; 1998-118, S. 15.)
§ 89C-18. Duplicate certificates.
The Board may issue a duplicate certificate oflicensure or certificate of authorization to
replace any certificate that has been lost, destroyed, or mutilated and may charge a fee of up to
twenty-five dollars ($25.00) for issuing the certificate. (1921 , c. I, s. 10; C.S., s. 6055(1); 1939, c.
218, S. 2; 1951, C. 1084, S. l ; 1953, C. 1041 , S. 10; 1957, C. 1060, S. 5; 1973, C. 1331, S. 3; 1975 ,
c. 681, s. l; 1993 (Reg. Sess., 1994), c. 671, s. 3; 1998-118, s. 16.)
§ 89C-18.1. (Effective July 1, 1999, until July 1, 2000) Licensing of nonresidents.
(a) Definitions. --The following definitions apply in this section:
(1) Delinquent income tax debt. --The amount of income tax due as stated in a
final notice of assessment issued to a taxpayer by the Secretary of Revenue when the taxpayer no
longer has the right to contest the amount.
(2) Foreign corporation. --Defined in G.S. 55-1-40.
(3) Reserved.
(4) Foreign limited liability company. --Defined in G.S. 57C-l-03.
(b) Licensing. --The Board shall not renew a certificate oflicensure for a foreign corporation
unless the corporation has obtained a certificate of authority from the Secretary of State pursuant
to Article 15 of Chapter 55 of the General Statutes. The Board shall not renew a certificate of
licensure for a foreign limited liability company unless the company has obtained a certificate of
authority from the Secretary of State pursuant to Article 7 of Chapter 57C of the General
Statutes.
(c) Information. --Upon request, the Board shall provide the Secretary of Revenue on an
annual basis the name, address, and tax identification number of every nonresident individual
licensed by the Board. The information shall be provided in the format required by the Secretary
of Revenue.
(d) Delinquents. --If the Secretary of Revenue determines that any nonresident individual
licensed by the Board owes a delinquent income tax debt, the Secretary of Revenue may notify
the Board of these nonresident individuals and instruct the Board not to renew their certificates
oflicensure. The Board shall not renew the certificate oflicensure of such a nonresident
individual identified by the Secretary of Revenue unless the Board receives a written statement
from the Secretary that the debt either has been paid or is being paid pursuant to an installment
agreement. ( 1998-162, s. 7.)
§ 89C-18.l.(V2)(Effective July 1, 2000) Licensing of nonresidents.
(a) Definitions. --The following definitions apply in this section:
( 1) Delinquent income tax debt. --The amount of income tax due as stated in a
final notice of assessment issued to a taxpayer by the Secretary of Revenue when the taxpayer no
longer has the right to contest the amount.
(2) Foreign corporation. --Defined in G.S. 55-1-40.
(3) Foreign entity. --A foreign corporation, a foreign limited liability company,
or a foreign partnership.
(4) Foreign limited liability company. --Defined in G.S. 57C-1-03.
(5) Foreign partnership. --Either of the following that does not have a
permanent place of business in this State:
a. A foreign limited partnership as defined in G.S. 59-102.
b. A general partnership formed under the laws of a jurisdiction other
than this State.
(b) Licensing. --The Board shall not renew a certificate oflicensure for a foreign corporation
unless the corporation has obtained a certificate of authority from the Secretary of State pursuant
to Article 15 of Chapter 55 of the General Statutes. The Board shall not renew a certificate of
licensure for a foreign limited liability company unless the company has obtained a certificate of
authority from the Secretary of State pursuant to Article 7 of Chapter 57C of the General
Statutes.
(c) Information. --Upon request, the Board shall provide the Secretary of Revenue on an
annual basis the name, address, and tax identification number of every nonresident individual
and foreign entity licensed by the Board. The information shall be provided in the format
required by the Secretary of Revenue.
( d) Delinquents. --If the Secretary of Revenue determines that any nonresident individual or
foreign corporation licensed by the Board, a member of any foreign limited liability company
licensed by the Board, or a partner in any foreign partnership licensed by the Board, owes a
delinquent income tax debt, the Secretary of Revenue may notify the Board of these nonresident
individuals and foreign entities and instruct the Board not to renew their certificates of licensure.
The Board shall not renew the certificate oflicensure of such a nonresident individual or foreign
entity identified by the Secretary of Revenue unless the Board receives a written statement from
the Secretary that the debt either has been paid or is being paid pursuant to an installment
agreement. (1998-162, ss. 7, 13.)
§ 89C-19. Public works; requirements where public safety involved.
This State and its political subdivisions such as counties, cities, towns, or other political
entities or legally constituted boards, commissions, public utility companies, or authorities, or
officials, or employees of these entities shall not engage in the practice of engineering or land
surveying involving either public or private property where the safety of the public is directly
involved without the project being under the supervision of a professional engineer for the
preparations of plans and specifications for engineering projects, or a professional land surveyor
for land surveying projects, as provided for the practice of the respective professions by this
Chapter.
An official or employee of the State or any political subdivision specified in this section,
holding the positions set out in this section as of June 19, 197 5, shall be exempt from the
provisions of this section so long as such official or employee is engaged in substantially the
same type of work as is involved in the present position.
Nothing in this section shall be construed to prohibit inspection, maintenance and service
work done by employees of the State of North Carolina, any political subdivision of the State, or
any municipality including construction, installation, servicing, and maintenance by regular full-
time employees of, secondary roads and drawings incidental to work on secondary roads, streets,
street lighting, traffic-control signals, police and fire alarm systems, waterworks, steam, electric
and sewage treatment and disposal plants, the services of superintendents, inspectors or foremen
regularly employed by the State of North Carolina or any political subdivision of the State, or
municipal corporation.
The provisions in this section shall not be construed to alter or modify the requirements of
Article 1 of Chapter 133 of the General Statutes. (1975, c. 681, s. l; 1998-118, s. 17.)
§ 89C-19.1. Engineer who volunteers during an emergency or disaster; qualified
immunity.
(a) A professional engineer who voluntarily, without compensation, provides structural,
electrical, mechanical, or other engineering services at the scene of a declared disaster or
emergency, declared under federal law or in accordance with the provisions of Article 1 of
Chapter 166A of the General Statutes or Article 36A of Chapter 14 of the General Statutes, at the
request of a public official, law enforcement official, public safety official, or building inspection
official, acting in an official capacity, shall not be liable for any personal injury, wrongful death,
property damage, or other loss caused by the professional engineer's acts or omissions in the
performance of the engineering services.
(b) The immunity provided in subsection (a) of this section applies only to an engineering
service:
( 1) For any structure, building, piping, or other engineered system, either
publicly or privately owned.
(2) That occurs within 45 days after the declaration of the emergency or
disaster, unless the 45-day immunity period is extended by an executive order issued by the
Governor under the Governor's emergency executive powers.
(c) The immunity provided in subsection (a) of this section does not apply ifit is determined
that the personal injury, wrongful death, property damage, or other loss was caused by the gross
negligence, wanton conduct, or intentional wrongdoing of the professional engineer, or arose out
of the operation of a motor vehicle.
( d) As used in this section:
(1) "Building inspection official" means any appointed or elected federal, State,
or local official with overall executive responsibility to coordinate building inspection in the
jurisdiction in which the emergency or disaster is declared.
(2) "Law enforcement official" means any appointed or elected federal, State,
or local official with overall executive responsibility to coordinate law enforcement in the
jurisdiction in which the emergency or disaster is declared.
(3) "Public official" means any federal, State, or locally elected official with
overall executive responsibility in the jurisdiction in which the emergency or disaster is declared.
( 4) "Public safety official" means any appointed or elected federal, State, or
local official with overall executive responsibility to coordinate public safety in the jurisdiction
in which the emergency or disaster is declared. (1995, c. 416, s. 1.)
§ 89C-20. Rules of professional conduct.
In the interest of protecting the safety, health, and welfare of the public, the Board shall adopt
rules of professional conduct applicable to the practice of engineering and land surveying. These
rules, when adopted, shall be construed to be a reasonable exercise of the police power vested in
the Board of Examiners for Engineers and Land Surveyors. Every person licensed by the Board
shall subscribe to and observe the adopted rules as the standard of professional conduct for the
practice of engineering and land surveying and shall cooperate fully with the Board in the course
ofany investigation. In the case of violation of the rules of professional conduct, the Board shall
proceedinaccordancewithG.S. 89C-22. (1975, c. 681, s. l ; 1987, c. 827, s. 73; 1998-118, s.
18.)
§ 89C-21. Disciplinary action --Reexamination, revocation, suspension, reprimand, or civil
penalty.
(a) The Board may reprimand the licensee, suspend, refuse to renew, or revoke the certificate
oflicensure, or, as appropriate, require reexamination, for any engineer or land surveyor, who is
found:
(1) Guilty of the practice of any fraud or deceit in obtaining a certificate of
licensure or certificate of authorization.
(2) Guilty of any gross negligence or misconduct in the practice of the
profession.
(3) Guilty of any felony or any crime involving mora 1 turpitude.
(4) Guilty of violation of the Rules of Professional Conduct, as adopted by the
Board.
(5) To have been declared insane or incompetent by a court of competent
jurisdiction and has not later been lawfully declared sane or competent.
(6) Guilty of professional incompetence. In the event the Board finds that a
certificate holder is incompetent the Board may, in its discretion, require oral or written
examinations, or other indication of the certificate holder's fitness to practice engineering or land
surveying and suspend the license during any such period.
(b) The Board may (i) revoke a certificate of authorization, or (ii) to suspend a certificate of
authorization for a period of time not exceeding two years, of any corporation or business firm
where one or more of its officers or directors have committed any act or have been guilty of any
conduct which would authorize a revocation or suspension of their certificates oflicensure under
the provision ofthis section.
(c) The Board may levy a civil penalty not in excess of two thousand dollars ($2,000) for any
engineer or land surveyor who violates any of the provisions of subdivisions (1) through (4) of
subsection (a) of this section. The clear proceeds of all civil penalties collected by the Board,
including civil penalties collected pursuant to G.S. 89C-22(c), shall be remitted to the Civil
Penalty and Forfeiture Fund in accordance with G.S. l 15C-457.2.
( d) Before imposing and assessing a civil penalty and fixing the amount, the Board s hall, as a
part of its deliberation, take into consideration the following factors:
(1) The nature, gravity, and persistence of the particular violations;
(2) The appropriateness of the imposition of a civil penalty when considered
alone or in combination with other punishment;
(3) Whether the violation(s) were done willfully and maliciously; and
( 4) Any other factors which would tend to either mitigate or aggravate the
violation(s) found to exist. (1921, c. 1, s. 10; C.S., s. 6055(1); 1939, c. 218, s. 2; 1951, c. 1084, s.
l; 1953, c. 1041, s. 10; 1957, c. 1060, S. 5; 1973, C. 1331, s. 3; 1975, C. 681, S. l; 1989, C. 669, S.
l; 1993 (Reg. Sess., 1994), c. 671, s. 6; 1998-118, s. 19; 1998-215, s. 134.)
§ 89C-22. Disciplinary action --Charges; procedure.
(a) Any person may prefer charges of fraud, deceit, gross negligence, incompetence,
misconduct, or violation of the rules of professional conduct, against any Board registrant. The
charges shall be in writing and shall be sworn to by the person or persons making them and shall
be filed with the Board.
(b) All charges, unless dismissed by the Board as unfounded or trivial, shall be heard by the
Board as provided under the requirements of Chapter 150B of the General Statutes.
( c) If, after a hearing, a majority of the Board votes in favor of sustaining the charges, the
Board shall reprimand, levy a civil penalty, suspend, refuse to renew, or revoke the licensee's
certificate.
(d) A licensee who is aggrieved by a final decision of the Board may appeal for judicial
review as provided by Article 4 of Chapter 150B.
( e) The Board may, upon petition of an individual or an entity whose certificate has been
revoked, for sufficient reasons as it may determine, reissue a certificate oflicensure or
authorization, provided that a majority of the members of the Board vote in favor of such
issuance. (1921 , c. 1, s. 10; C.S., s. 6055(1); 1939, c. 218, s. 2; 1951, c. 1084, s. l; 1953, c. 1041,
S. 10; 1957, C. 1060, S. 5; 1973, C. 1331, S. 3; 1975, C. 681 , S. l; 1981, C. 789; 1989, C. 669, S. 2;
1993 (Reg. Sess., 1994), c. 671, s. 7; 1998-118, s. 20.)
§ 89C-23. Unlawful to practice engineering or land surveying without licensure; unlawful
use of title or terms; penalties; Attorney General to be legal adviser.
Any person who shall practice, or offer to practice, engineering or land surveying in this State
without first being licensed in accordance with the provisions of this Chapter, or any person,
firm, partnership, organization, association, corporation, or other entity using or employing the
words "engineer" or "engineering" or "professional engineer" or "professional engineering" or
"land surveyor" or "land surveying," or any modification or derivative of those words in its name
or form of business or activity except as licensed under this Chapter or in pursuit of activities
exempted by this Chapter, or any person presenting or attempting to use the certificate of
licensure or the seal of another, or any person who shall give any false or forged evidence of any
kind to the Board or to any member of the Board in obtaining or attempting to obtain a certificate
oflicensure, or any person who shall falsely impersonate any other licensee of like or different
name, or any person who shall attempt to use an expired or revoked or nonexistent certificate of
licensure, or who shall practice or offer to practice when not qualified, or any person who falsely
claims that the person is registered under this Chapter, or any person who shall violate any of the
provisions of this Chapter, in addition to injunctive procedures set out hereinbefore, shall be
guilty of a Class 2 misdemeanor. In no event shall there be representation of or holding out to the
public of any engineering expertise by unlicensed persons. It shall be the duty of all duly
constituted officers of the State and all political subdivisions of the State to enforce the
provisions of this Chapter and to prosecute any persons violating them.
The Attorney General of the State or an assistant shall act as legal adviser to the Board and
render any legal assistance necessary to carry out the provisions of this Chapter. The Board may
employ counsel and necessary assistance to aid in the enforcement ofthis Chapter, and the
compensation and expenses for the assistance shall be paid from funds of the Board. (1921 , c. I,
s. 12; C.S., s. 6055(n); 1951, c. 1084, s. I; 1975, c. 681 , s. I; 1993, c. 539, s. 612; 1994, Ex.
Sess., c. 24, s. 14(c); 1998-118, s. 21.)
§ 89C-24. Licensure of corporations and business firms that engage in the practice of
engineering or land surveying.
A corporation or business firm may not engage in the practice of engineering or land
surveying in this State unless it is licensed by the Board and has paid an application fee
established by the Board in an amount not to exceed one hundred dollars ($100.00). A
corporation or business firm is subject to the same duties and responsibilities as an individual
licensee. Licensure of a corporation or business firm does not affect the requirement that all
engineering or land surveying work done by the corporation or business firm be performed by or
under the responsible charge of individual registrants, nor does it relieve the individual
registrants within a corporation or business firm of their design and supervision responsibilities.
This section applies to every corporation that is engaged in the practice of engineering or land
surveying, regardless of when it was incorporated. A corporation that is not exempt from Chapter
55B of the General Statutes by application of G.S. 55B-15 must be incorporated under that
Chapter. (1921, c. 1, s. 14; C.S., s. 6055(p); 1951, c. 1084, s. l; 1969, c. 718, s. 18; 1975, c. 681,
s. l ; 1993 (Reg. Sess., 1994), c. 671, s. 4; 1998-118, s. 22.)
§ 89C-25. Limitations on application of Chapter.
This Chapter shall not be construed to prevent or affect:
( 1) The practice of architecture, landscape architecture, or contracting or any
other legally recognized profession or trade.
(2) The practice of professional engineering or land surveying in this State or
by any person not a resident of this State and having no established place of business in this State
when this practice does not aggregate more than 90 days in any calendar year, whether
performed in this State or elsewhere, or involve more than one specific project; provided,
however, that the person is licensed to practice the profession in the person's own state or
country, in which the requirements and qualifications for obtaining a certificate oflicensure are
satisfactory to the Board; in which case the person shall apply for and the Board will issue a
temporary permit.
(3) The practice of professional engineering or land surveying in this State not
to aggregate more than 90 days by any person residing in this State, but whose residence has not
been of sufficient duration for the Board to grant or deny licensure; provided, however, the
person shall have filed an application for licensure as a professional engineer or professional land
surveyor and shall have paid the fee provided for in G.S. 89C-14, and provided that the person is
licensed to practice professional engineering or professional land surveying in the person's own
state or country in which the requirements and qualifications for obtaining a certificate of
licensure are satisfactory to the Board, in which case the person shall apply for and the Board
will issue a temporary permit.
( 4) Engaging in engineering or land surveying as an employee or assistant
under the responsible charge of a professional engineer or professional land surveyor or as an
employee or assistant of a nonresident professional engineer or a nonresident professional land
surveyor provided for in subdivisions (2) and (3) of this section, provided that the work as an
employee may not include responsible charge of design or supervision.
(5) The practice of professional engineering or land surveying by any person
not a resident of, and having no established place of business in this State, as a consulting
associate of a professional engineer or professional land surveyor licensed under the provisions
of this Chapter; provided, the nomesident is qualified for performing the professional service in
the person's own state or country.
(6) Practice by members of the armed forces or employees of the government
of the United States while engaged in the practice of engineering or land surveying solely for the
government on government-owned works and projects; or practice by those employees of the
Natural Resources Conservation Service having federal engineering job approval authority that
involves the planning, designing, or implementation of best management practices on
agricultural lands.
(7) The internal engineering or surveying activities of a person, firm or
corporation engaged in manufacturing, processing, or producing a product, including the
activities of public service corporations, public utility companies, authorities, State agencies,
railroads, or membership cooperatives, or the installation and servicing of their product in the
field; or research and development in connection with the manufacture of that product or their
service; or of their research affiliates; or their employees in the course of their employment in
connection with the manufacture, installation, or servicing of their product or service in the field,
or on-the-premises maintenance of machinery, equipment, or apparatus incidental to the
manufacture or installation of the product or service of a firm by the employees of the firm upon
property owned, leased or used by the firm; inspection, maintenance and service work done by
employees of the State of North Carolina, any political subdivision of the State, or any
municipality including construction, installation, servicing, maintenance by regular full-time
employees of streets, street lighting, traffic-control signals, police and fire alarm systems,
waterworks, steam, electric and sewage treatment and disposal plants; the services of
superintendents, inspectors or foremen regularly employed by the State of North Carolina or any
political subdivision of the State or a municipal corporation; provided, however, that the internal
engineering or surveying activity is not a holding out to or an offer to the public of engineering
or any service thereof as prohibited by this Chapter. Engineering work, not related to the
foregoing exemptions, where the safety of the public is directly involved shall be under the
responsible charge of a licensed professional engineer, or in accordance with standards prepared
or approved by a licensed professional engineer.
(8) The (i) preparation of fire sprinkler planning and design drawings by a fire
sprinkler contractor licensed under Article 2 of Chapter 87 of the General Statutes, or (ii) the
performance of internal engineering or survey work by a manufacturing or communications
common carrier company, or by a research and development company, or by employees of those
corporations provided that the work is in connection with, or incidental to products of, or
nonengineering services rendered by those corporations or their affiliates.
(9) The routine maintenance or servicing of machinery, equipment, facilities or
structures, the work of mechanics in the performance of their established functions, or the
inspection or supervision of construction by a foreman, superintendent, or agent of the architect
or professional engineer, or services of an operational nature performed by an employee of a
laboratory, a manufacturing plant, a public service corporation, or governmental operation.
(10) The design of land application irrigation systems for an animal waste
management plan, required by G.S. 143-215. lOC, by a designer who exhibits, by at least three
years ofrelevant experience, proficiency in soil science and basic hydraulics, and who is thereby
listed as an Irrigation Design Technical Specialist by the North Carolina Soil and Water
Conservation Commission. (1921, c. 1, s. 13 ; C.S., s. 6055(0); 1951, c. 1084, s. l; 1975, c. 681,
s. l ; 1995, c. 146, s. l ; 1995 (Reg. Sess., 1996), c. 742, s. 35; 1997-454, s. l ; 1998-118, s. 23.)
§ 89C-25.1. Supervision of unlicensed individuals by licensed person.
In all circumstances in which unlicensed individuals are permitted under this Chapter to
perform engineering or land surveying work, or both, under the supervision of a licensed
engineer, land surveyor, or both, the Board may by regulation establish a reasonable limit on the
number of unlicensed individuals which a licensee of the Board may directly or personally
supervise at one time. (1979, c. 819, s. 5; 1998-118, s. 24.)
§89C-25.2. Program of licensure by discipline.
The Board shall submit to the legislative committees ofreference by July 1, 1981, a program
oflicensure by discipline and an analysis of the costs and merits thereof in order to permit the
General Assembly to make a decision on the establislnnent of such a program. The "committees
ofreference" shall be the Senate and House Committees on State Government respectively or
such other committees as the respective presiding officers may determine. ( 1979, c. 819, s. 5.)
§ 89C-26: Repealed by Session Laws 1997-309, s. 10.
§89C-27. Invalid sections; severability.
If any of the provisions of this Chapter, or if any rule, regulation or order thereunder, or if the
application of such provision to any person or circumstance shall be held invalid, the remainder
of this Chapter and the application of such provision of this Chapter or rule, regulation or order
to persons or circumstances, other than those as to which it is held valid, sha11 not be affected
thereby. (1975, c. 681, s. 1.)
§ 89C-28. Existing licensure not affected.
Nothing in this Chapter shall be construed as affecting the status oflicensure of any
professional engineer or land surveyor who is rightfu11y in possession of a certificate oflicensure
duly issued by the Board and valid as ofJuly 1, 197 5. (1951, c. 1084, s. 1; 19 59, c. 1236, s. 2;
1975, C. 681, s. l; 1998-118, s. 25.)
DATE: MARGI 16, 2000
SPEROS FLEGGAS, P.E.
PAT BACKUS, P.E.
TO:
FROM:
RE: PCB LANDFILL DETOXIFICATION DESIGN
Dolan Simmons asked me to deliver this copy of the PCB Landfill Detoxification
Design information for your review. I would appreciate the opportunity to discuss the
project prior to your review to explain the objectives of the project and the objectives in
developing this design. However, if this is not possible, I offer the following comments.
The objective of this design was to provide the details needed to support issuing a
Request for Proposals for the remediation of 60,000 tons of PCB-contaminated soil at the
Warren County PCB landfill site using the process and treatment requirements specified by
the General Assembly. Those requirements are to treat the soil using the Base Catalyzed
Decomposition (BCD) process and to reduce the level of PCBs to 200 ppb. BCD is an
EPA-patented process. Licenses can be obtained by anyone from EPA, however, ETG is
the only company in the United States to have obtained a full license and used the process
beyond the bench scale. ETG is the only company that has conducted treatability tests
using the BCD process with PCB landfill soil. For these reasons, they were the best firm to
provide the design. However, because of their experience, it is also in the interest of the
state to include them in the treatment competition. Whether formally documented or not,
there has been an understanding between ETG, the community, and the NCDENR
personnel involved in this phase of the project that ETG would not be excluded from the
remediation contract bidding. We purposely requested that ETG be flexible in the design
package so that it would not be an "ETG design" and so that other firms could more easily
bid. We also requested that they not provide the bidding and contract documents in the
design.
Because the remediation is to be done on-site, there is obviously the need to prepare
the site and mobilize the equipment. Some of this work would be considered construction
activities. These facilities will also be decontaminated and removed after the treatment is
completed. Performing this work correctly as required by the state is important, however,
this is small portion of the project and should not detract from most important objective of
this project which is to remediate the soil.
Finally, there are you a few other points to address some questions that have been
raised or may be raised.
(j
Who is ETG? ETG is an environmental services company with nearly forty years of
operating experience. I do not believe they have registration as an engineering firm, but
they do have key personnel on staff who have PE registration in states other than
North Carolina. They have a strong background in thermal desorption with is an
integral part of the solid phase BCD process. They were recently acquired by
1
.... ,
MACTEC, an environmental engineering company with numerous off ices and
contracts across the country. To get a better picture of who they are I would suggest
you view their website at www.mactec.com.
Who is BFA? BFA stands for Barnes Ferland and Associates. Pat Barnes has been
involved with this project for several years. He was originally hired by the state to be
an independent advisor to the community concerning the condition of the existing
landfill and possible contamination from the landfill. Pat is a licensed geologist in the
States of Florida and North Carolina. The BFA firm is also licensed under the North
Carolina Board for Licensing of Geologists. BFA was hired by ETG to provide
engineering services during the final design phase. BF A is an engineering firm licensed
by the Florida Board of Professional Engineers. As such, they have licensed engineers
on staff. However, neither the firm nor their engineers are licensed in North Carolina.
The design documents were reviewed by Ed Mussier and Bill Sessoms from the
Division of Waste Management who are both PEs in the State of North Carolina and
have experience with landfill design and construction activities similar to what are
required in this project. I also reviewed the documents concentrating on the aspects
that fall under my background in chemical engineering and environmental engineering.
I am also a PE in North Carolina
For guidance, similar projects would be Superfund remediations. Superfund previously
used to use separate design contracts and remediation contracts but abandoned that
approach because of problems with the remediation firm following the design.
Treatment equipment is somewhat more subjective that construction materials.
Superfund now contracts for design and remediation in one step.
I do appreciate your help in reviewing this design and providing guidance and support in
preparing the bidding documents and getting the project underway. Please contact me if
you have any questions at 733-4996 x308.
2
'31 '3-715-DE,E:4 t,JCDE.S:NF' / F"UF'CH?:/:; I tK:i
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I ------------------
1 I
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r aird Daviso.G
n,)lan Sirnxnons
; .inda \Vest
Lynn Le e
l<.elly Belvin
Fc,n est \YilsJ:1
Larry \Villia.rns
Theresa Butler
(919) 715--3880
[phone]
(919) 715-38(,8
[phone]
(9]9) 715-3867
[phone]
(919) 7J 5-3S75
(9) 9) 715-3885
:Mi chaeI .Bryant
Pat Powe11
RJ.i cmd:=t Johnson
Traci Rains
Jo Anne l(eith
K.athy Domico
Thetesa \Vatkins
Kathy Nonis
[phone]
[phone]
(91 9) 715-3900
[phone] ·
(919) 715"3884
(91 9) 715-3tl82
[phone]
[phone]
NC DFPAR.T·MENT OF ENVIR.ONJ\JENT AND NATURAL RESOURCES
DIVISION OF PlJRCH.ASE AND SERVICES
16 05 lVIAlL SERVICE CENTER
RALEIGH NC 27699-1605
512 N SALISBU.RY STRRET
RALEIGH NC 27604
Fax [phone]
F'A(:iE Dl / 0 '3
'31 '3-715-0E.S4 t•lCDE8NF'. /F'UF'CHA'::; I HG
INSTRUCTIONS FOR APPLICATION
AUTHORIZATION TO USE AN ALTERNATIVE CONTRACTING METHOD
'1 Submit fifteen (15) copies of the completed application, including all attachments
and supporting documents with each copy, to the following address:
Director, State Construction Office
Suite 450, NC Education Building
301 N. Wilmington St.
Raleigh , NC 27601 -2827
2. Complete applications received in the State Construction Office by 5:00 p.m. on the
first business day of the month will be considered by the State Buildlng Commission
at that month's meeting.
:3. Incomplete applications will be returned to the applicant with written reasons for the
return_ Resubmittal will follow the same proced ure set out in #2 above_
To assist you with your app lication , we are enclosing a copy of the permanent rules
and an application form.
(Effective July 1, 1996)
n·:-/nci -~· i.:,,/) I ,
03!28i?O OO 11:25 919-715-0584 NCDE&NR/PLJRCHASING tWMJNl:i1RA11UN -::>1A11!, l,UlV:)1 KUl.-1 lUlV F'AGE 0 7/0':3 .LU..1.-. --.IV'\J -.U ... UILI
CHAPTER 30 ~ ST ATE CONSTRCCTION OFFICE
SUBCHA.PTER 30G -STATE BUILDING COl\.Il\lUSSION PROCEDTJRES AND CRITERIA FOR
AUTHORIZATION TO USE AN ALTERNATIVE CONTRACTING METHOD
SECTION .0lt}0 -GENERAL PROVISIONS
.0101 AUTHORITY
The State Building Commission, hereinafter referred to as SBC. is a statutory body, empowered by law to perform
a multiplicity of duties wirh regard to the State's capital facilities development and management program. In the
,ueci.fic area of State capiral improvement project ri::quiremems for building conrracts, the SBC is empowered by G.S.
143-135.26 to adopt procedures which allows a State agency or instirution, a local governmental unit. or any other
entity subject to the provisions of G.S. 143-129 to use a method of conrracting not authorized under G.S. 143-128.
The use of any other alternative method shall be approvEd in advance by the SBC for any single project.
History Nore: Awlroriry G.S. 143-/35_26;
.iH02
Temporary Adoprion Ejf. July 1, 1996;
Ejf August 1, 1998.
POUCY
Generally, it is the policy of the SBC that: the public's inreresr is typically besr served by the letting of public
construction contracts pursuant to the regular sianuory procedu.res, particularly the provisions of G.S. 143-128.
:Jevcctheless, in addition to those siruations when a project caunol be completed using the standard methods, me SBC
\Vill recognize certai.n extraordinary circumstances that are appropriate, in the public· s interest, and will justify an
exemption from me methods of contracting auchorized under G.S. 143-128_ Such extraordinary circumstances must
be created by some llilU-~ual or unforeseen occurrence or situation and includes those siruations set fortb in l NCAC
30G .0105(b); any request made for au exemption as a result of such extraordinary circumsra.nce must demonstrate
to the SBC that requisite justification exists to obtain the exemption.
History Note: Au.rhoriry G.S. 143-135.26(9)(b);
Temporary Adoption £ff July 1, 1996;
Ejf August 1. 1998 .
. fH03 DEFINITIONS
For the purposes of the rules in this Section, the following definitions shall apply:
(1) •Alcernative contracting method" includes but is not limited co:
(a) the single-prime comracting system, nor otherwise authorized under G.S. 143-128,
(b) the design-build delivery system, or
(c) the construction management delive:ry sysrem.
(2) "Chairman" me:ms the Chairman of the Stace Building Commission.
(3) • Construction management delivery system" mc3Jl$ the altemarive contracting method where the public
owner contracts for a fee with a single person, bur not the project genera.I contractor, who administers
contracts with separate coutraclors for the construction of the project and who is respousible 3.'i agent to
the public owner for me coordination and managemenr of the project, but where the public owner remains
liable to the separate contractors.
(4) "Design-build delivery system" means that the public owner contracts for a fee with a single person for
the design. management and construction of a project.
(5) "Directm:-" means the Director of the State Construction Office.
(6) "Exemption" means the grant of authorization by the SBC for the use of a method of contracting not
otherwise authorized under G.S. 143-128.
(7) "Person" means a person, firm or corporation_
{8) "Project" means the building or facility for which an exemption is requested by tile public owner, and upon
which the work will be performed.
{9) "Public owner" means a state agency or institution, a local government unit, or any other entity subject
to the provisions of G.S. 143~129.
(l0) "SBC" means the State Building Commission_
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(1 1) "Work" means the erection, repair, construction, renovation or alteration to be performed upon a building
or facility.
History Note.-Authority G_s_ 143-135.26;
.Jl04
Temporary Adoption Elf July 1, 1996;
Eff. August 1, 1998.
GENERAL PROCEDURES
(a) Application Fonn -The SBC shall establish a fonn of application to be used by public owners requesting an
exemption, which shall upon request be provided to public mvners. A completed application shall comain all of the
infonnation necessary to enable the SBC to determine the appropriaceness and merits of approving an exemption.
(b) Rules for Application -Toe SBC, upon request, shall provide public owners with a copy of the rules ir adopts
under the authority of G_S_ 143-135.26(9).
(c) Review of Application:
(1) The public owner shall submit the application tO the Stare Construction Office, Attention: Director,
Deparnnent of Admiuistmtion, New Education Building. Suite 450, 301 North Wilmington Street, Raleigh,
North Carolina 27601-2827. The Director shall review the application upon its receipL If the Director
determines that the application is not complete, he shall return the application to the public ov..11er along
with a written notice of che reasons for the return. Despite the return of an application, a public owner
may .request in writing to the Director that the SBC consider the application as originally submitted. and
the notice of rerurn to the public oWTier shall so scate this option. An application shall be considered
abandoned if it is ,erurned purslliillc to this section. and uo furrher action is taken by the public owner w
satisfy che reasons for its retl.lm.
(2) Completed applications shall be considered within 60 days of receipt by tl:te Director of cbe completed
application. Once scheduled for consideration by me SBC. the public owner shall be given uotice of the
date, time :md location of the SBC meeting at which the application shall be considered_
(3) The SBC shall only accept written applications . After due consideration of these applications, the SBC
shall take one of the foUowing actions:
(A) Delay consideration of the application;
(B) Deny the applicatiou; or
(C) Approve cbe application.
Within five days of the SBC' s action upon the applicacion. notice of the same shall be sent to the public
owner, and to the Director. Upon a delay of consideration pursuant to Paragraph (a) of this Rule, the SBC
shall immediately request from the public owner or other person furthe:r infonnation required in order to
make a determination. or provide the public owner with nocice of the reason for the delay_
(d) Approval of an Application -Approval of an application authorizes the public owner to urilize only the
alternative conrrac!ing method as proposed by the public owner and no other method of contracting. Approval of
an application shall be effective for a period to be determined by the SBC but not exceeding 12 mouths. Standards
used by the SBC in determining che effective length of an approval shall include, but not be limiced co, the request
of the public owner. the experience of the public owner, the SBC and the Director with the approved memod. the
recornmendatio11 of the Director, and the narure of the project. TI1e SBC may extend the effective time period upou
good cause shown by the public owner for no more than an additional 12 months. Good cause mtL5t be shown by
serious re~oos including, but :nor limited to, unforeseen acts or events that delay the project, acis of war or
terrorism, unavoidable casualties or other causes beyond the public owuer's control. The extension of an effective
time period shall run from the la:;;t day of the prior effective time period. The effective time period shall run from
the date the SBC approves the application.
(e) Contlicrs of Interest - A member of the SBC is not qualified to vote upon any matter or int1uence any other
member's vote upon any matter in wh.ich he has a con.flict of irtreresr_ A contlict of interest, as related co r:nembers
of the SBC having an incerest in coruracts authorized by the SBC. is defined in G.S. 143-135.28, and that definition
:r-piies to conflicts of SBC meIJ:Jbers having an interest in projects for which alternative contracting methods are
·• 1i1orized by the SBC.
(f) Public Records -Tne Director shaU maintain a list of applications which states the name of the public owner,
the name of the project, the project amount. a brief description of the category for which the exemption is sought.
arid a record of the SBC's action_ Applications, and a record of the SBCs action upon those applications, shall be
,ivailable for public inspection.
History Note: A111horiry c_s_ 143-135.26;
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. ADMINISTRATION -STATE CON:,TRUC11UN F'AC,E D "3 / D "3
.lHOS
Temporary Adoption Eff July 1, 1996;
Eff August 1, 1998.
CRITERIA FOR CONSIDERATION
.IrJL: .1Ulr .UlUU
{a) General Considerations -Appljcations shall be subject to the following general considerations which the SBC
i ',.all utilize in reviewing all applications:
(1) Whether the public owner has adequately justified that the requested exemption is applicable to the project.
(2) Whether under the circumstances presented the project can be reasonably completed under the methods
authorized under G.S. 143-128, and if not, whether the public owner has adequately demonstrated that the
proposed alternative contracting method is necessary.
(3) Whether the exemptiou sought is appropriate and in the public 's interesc.
(4) Whether the public owner has been responsible in the pre-planning stages of the project.
i bl Criteria for E;,;:cmpdons -The following criteria describe circumstances where the SBC recognizes that a
project may not be able to be reasonably completed under the methods authorized by G.S. 143-128, and where the
u.'5e-of an alternative contracting system, not otherwise authorized by G.S. 143-128, may be appropriate and in the
public· s interest:
(1) Special Technology or Equipment -The project involves the erection or construction of special or un.igue
technology or equipment whose vendor requires chat its services be purchased in conjunction with the
technology or equipment; or the vendor guaraDttes the technology or equipment only if its services are
purchased iu conjunction with the technology or equipment.
(2) UnIL~ual Complexicy -The project involves one or more of the following conditions:
(A) very specialized or complex type of consn:uction irivolving unconventional construction techniques
or materials, or unusual working conditions:
(B) major renovations or an addition to an existing facility requiring continuous coordination of
occupied programs or operations necessar; for the protection of public health or safety; or
(C) extensive repain., renovations or an addition ro a major building or facility listed either in the North
Carolina or Federal Register of Hisrnric Propenies.
(3) Accelerated Schedule • A fast track schedule is required due to actual or impending judicial intervention
by meau.s of a State or Federal court order, or to address actual or impending regularory mandates or
citation for noncompliance.
f:'.'story Note_· Au1horiry G.S. 143-135.26:
Temporary Adoption Eff. July 1. 1996;
Eff. Augusr 1, 1998.
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