CHAPTER 6 - PUBLIC PROPERTY

 

ARTICLE 1 - PUBLIC WORKS AND CONTRACTS

 

16-6-101. Definitions.

 

(a) As used in this act:

 

(i) "Resident" means a natural person, association or business entity authorized to be formed under title 17 of the Wyoming statutes, or the laws of another state that are the functional equivalent, and that is certified as a resident by the department of workforce services following receipt of an affidavit executed and sworn to by a chief executive officer of the entity setting forth information required by the department to determine compliance with this act and prior to bidding upon the contract or responding to a request for proposal, subject to the following criteria:

 

(A) Any natural person who has been a resident of the state for one (1) year or more immediately prior to bidding upon the contract or responding to a request for proposal;

 

(B) A business entity, each member or equity owner of which has been a resident of the state for one (1) year or more immediately prior to bidding upon the contract or responding to a request for proposal;

 

(C) A business entity organized under the laws of the state:

 

(I) With at least fifty percent (50%) of the equity in the business entity owned by persons who have been residents of the state for one (1) year or more prior to bidding upon the contract or responding to a request for proposal;

 

(II) Which has maintained its principal office and place of business within the state for at least one (1) year; and

 

(III) The chief executive officer of the business entity has been a resident of the state for one (1) year or more immediately prior to the business entity's bidding upon the contract or responding to a request for proposal.

 

(D) A business entity organized under the laws of the state which has been in existence in the state for one (1) year or more and whose chief executive officer has been a resident of the state for one (1) year or more immediately prior to bidding upon the contract or responding to a request for proposal and maintains its principal office and place of business within the state. If at least fifty percent (50%) of the equity in the business entity is owned by nonresidents, the nonresident equity owned by the nonresidents shall:

 

(I) Have been acquired by nonresidents one (1) year or more immediately prior to bidding upon the contract or responding to a request for proposal; or

 

(II) If it consists of shares in a corporation, be publicly traded and registered under Section 13 or 15(d) of the Securities Exchange Act of 1934 for one (1) or more classes of its shares.

 

(E) Repealed by Laws 2013, Ch. 134, 2.

 

(F) Repealed by Laws 2013, Ch. 134, 2.

 

(G) Repealed by Laws 2013, Ch. 134, 2.

 

(H) Repealed By Laws 2011, Ch. 82, 2.

 

(J) A business entity organized under the laws of any state which has been in existence for two (2) years or more:

 

(I) Has continuously maintained a principal office and place of business within the state for at least one (1) year;

 

(II) Has continuously employed not less than fifteen (15) full-time Wyoming resident employees within the state for one (1) year or more prior to bidding upon the contract or responding to a request for proposal; and

 

(III) Has paid worker's compensation and unemployment taxes in Wyoming for at least one (1) year and is in good standing with the department of workforce services at the time the bid or request for proposal is submitted.

 

(K) A business entity which qualifies as a resident pursuant to this paragraph shall not lose that residency solely due to a conversion under the provisions of W.S. 17-26-101 or other reorganization as a different business entity;

 

(M) No preference under this article shall be awarded to any contractor who is not a certified resident contractor at the time bids are submitted for a public capital construction project, and no contractor shall receive a contingent or retroactive resident certification.

 

(ii) "Principal office and place of business" means a headquarters or administrative center where:

 

(A) The high level officers or management direct, control and coordinate the business activities; and

 

(B) The key business functions are conducted, including, but not limited to project bidding.

 

(iii) "Chief executive officer" means:

 

(A) For a corporation, the president of the corporation;

 

(B) For a partnership other than a limited partnership, a partner;

 

(C) For a limited partnership, a general partner;

 

(D) For a limited liability company, a designated member or manager of the limited liability company;

 

(E) For a business entity not specified in subdivisions (A) through (D) of this paragraph, the entity's president, chairman of the executive committee, senior officer responsible for the entity's business, chief financial officer or any other individual who performs similar functions as specified by rule of the department. The department may authorize by rule the execution of an affidavit required by paragraph (i) of this subsection by an individual holding a position other than as specified in this paragraph, if the individual holds a position with functions similar to a president of a corporation.

 

(iv) "Department" means the department of workforce services;

 

(v) Major maintenance" means the repair or replacement of complete or major portions of building and facility systems at irregular intervals which is required to continue the use of the building or facility at its original capacity for its original intended use and is typically accomplished by contractors due to the personnel demand to accomplish the work in a timely manner, the level of sophistication of the work or the need for warranted work;

 

(vi) "This act" means W.S. 16-6-101 through 16-6-121.

 

16-6-102. Resident contractors; preference limitation with reference to lowest bid or qualified response; decertification; denial of application for residency.

 

(a) If a contract is let by the state, any department thereof, or any county, city, town, school district, community college district or other public corporation of the state for the construction, major maintenance or renovation of any public building, or other public structure, or for making any addition thereto, or for any public work or improvements, the contract shall be let, if advertisement for bids or request for proposal is not required, to a resident of the state. If advertisement for bids is required, the contract shall be let to the responsible certified resident making the lowest bid if the certified resident's bid is not more than five percent (5%) higher than that of the lowest responsible nonresident bidder.

 

(b) If any person who is certified as a resident contractor for any reason loses that certification, that person may not be recertified as a resident for a period of one (1) year from the date of decertification.

 

(c) If any person who applies for certification as a resident contractor is denied certification because of not meeting the residency requirements, that person may not reapply for certification for a period of one hundred eighty (180) days from the date certification is denied. No person shall be denied certification because of inadvertent omission of information, as determined by the department of workforce services, on an application for resident certification.

 

(d) Repealed By Laws 1999, Ch. 152, 2; 2007, Ch. 163, 2.

 

(e) The department shall make investigations as necessary to determine whether any person is eligible to receive or continue to hold a certificate of residency. The department may require or permit any person to file a statement in writing at any time, under oath or otherwise as to all the facts and circumstances concerning the matter to be investigated. For the purpose of any investigation under this section, the director of the department or any person designated by him may administer oaths and affirmations, subpoena witnesses, and compel their attendance, take evidence and require the production of any books, papers, correspondence, memoranda, agreements or other documents or records, which the director or designated person deems relevant or material to the inquiry. In case of refusal to obey a subpoena issued to any person, any Wyoming district court, upon application by the director, may issue to the person an order requiring him to appear before the director or the officer designated by him, to produce documentary evidence if so ordered, or to give evidence touching the matter under investigation or in question. Failure to obey the order of the court may be punished by the court as contempt of court. The burden of proof regarding the status of the residency is on the person whose residency is in question.

 

(f) If, after investigation, the department believes that a certificate of residency should be denied or revoked, it shall provide notice to the applicant or certificate holder of its intent to deny or revoke the certificate and of the applicant or certificate holder's opportunity for a hearing if requested. Any hearing conducted under this subsection shall be conducted in accordance with the Wyoming Administrative Procedure Act.

 

16-6-103. Limitation on subcontracting by resident contractors.

 

A successful resident bidder shall not subcontract more than thirty percent (30%) of the work covered by his contract to nonresident contractors.

 

16-6-104. Preference for Wyoming materials required in contracts.

 

Wyoming made materials and products, and Wyoming suppliers of products and materials of equal quality and desirability shall have preference over materials or products produced or supplied outside the state and any contract let shall so provide. The preference created by this section shall be applied in a manner identical to the preference for residence contractors in W.S. 16-6-102.

 

16-6-105. Preference for Wyoming materials and Wyoming agricultural products required in public purchases; exception; cost differential; definition.

 

(a) Every board, commission or other governing body of any state institution, and every person acting as purchasing agent for the board, commission or other governing body of any state institution or department, and every county, municipality, school district and community college district, shall prefer in all purchases for supplies, material, agricultural products, equipment, machinery and provisions to be used in the construction, major maintenance and renovation of their respective institutions, supplies, materials, agricultural products, equipment, machinery and provisions produced, manufactured or grown in this state, and supplies, materials, agricultural products, equipment, machinery and provisions supplied by a resident of the state, competent and capable to provide service for the supplies, materials, agricultural products, equipment, machinery and provisions within the state of Wyoming. Preference shall not be granted for articles of inferior quality to those offered by competitors outside of the state. A differential of not to exceed five percent (5%) may be allowed in cost of contracts for the Wyoming materials, supplies, agricultural products, equipment, machinery and provisions of quality equal to those of any other state or country.

 

(b) As used in this section, "agricultural products" means any horticultural, viticultural, vegetable product, livestock, livestock product, bees or honey, poultry or poultry product, sheep or wool product, timber or timber product.

 

16-6-106. Statement of Wyoming materials preference in requests for bids and proposals.

 

All requests for bids and proposals for materials, supplies, agricultural products, equipment, machinery and provisions for the construction, major maintenance and renovation of every state, county, municipal, community college district or school district institution shall contain the words "preference is hereby given to materials, supplies, agricultural products, equipment, machinery and provisions produced, manufactured or grown in Wyoming, or supplied by a resident of the state, quality being equal to articles offered by the competitors outside of the state".

 

16-6-107. Wyoming materials preference required in construction, major maintenance and renovation of public structures; exception.

 

All public buildings, courthouses, public school buildings, public monuments and other public structures constructed in this state shall be constructed and maintained using materials produced or manufactured in Wyoming for construction, major maintenance and renovation projects if Wyoming materials are suitable and can be furnished in marketable quantities. Preference shall not be granted for materials of an inferior quality to those offered by competitors outside of the state, but a differential of five percent (5%) shall be allowed in cost of materials produced or manufactured in Wyoming.

 

16-6-108. Governing of federal funds by federal law.

 

The operation of this act upon the letting of any public works contract above mentioned, in connection with which, funds are granted or advanced by the United States of America, shall be subject to the effect, if any, of related laws of the United States and valid rules and regulations of federal agencies in charge, governing use and payment of the federal funds.

 

16-6-109. Use of insurance for rebuilding state structures.

 

When buildings belonging to the state are destroyed, the insurance on the buildings shall be collected by the state treasurer. The governing board of the state institution suffering the loss may draw on the state treasurer for the amount of money collected and use the insurance money for the rebuilding of the structure destroyed if, in the opinion of the governing board, the structure should be rebuilt.

 

16-6-110. Limitation on work hours; overtime; exceptions.

 

(a) No person shall require laborers, workmen or mechanics to work more than eight (8) hours in any one (1) calendar day or forty (40) hours in any one (1) week upon any public works of the state or any of its political subdivisions except as hereafter authorized. An employee may agree to work more than eight (8) hours per day or more than forty (40) hours in any week, provided the employee shall be paid at the rate of one and one-half (1 1/2) times the regularly established hourly rate for all work in excess of forty (40) hours in any one (1) week. This section does not apply:

 

(i) In case of emergency caused by fire, flood or danger to life or property; or

 

(ii) To work upon public or military works or defenses in time of war.

 

16-6-111. Penalty for violating work hours provisions.

 

Any person who violates this act is guilty of a misdemeanor punishable by a fine of not more than seven hundred fifty dollars ($750.00).

 

16-6-112. Contractor's bond or other guarantee; when required; conditions; amount; approval; filing; enforcement upon default.

 

(a) Except as provided under W.S. 9-2-1016(b)(xviii), any contract entered into with the state, any county, city, town, school district or other political subdivision of the state for the construction, major maintenance or renovation of any public building or other public structure or for any public work or improvement and the contract price exceeds seven thousand five hundred dollars ($7,500.00), shall require any contractor before beginning work under the contract to furnish the state or any political subdivision, as appropriate, a bond or if the contract price is one hundred fifty thousand dollars ($150,000.00) or less, any other form of guarantee approved by the state or the political subdivision. The bond or other form of guarantee shall be:

 

(i) Conditioned for the payment of all taxes, excises, licenses, assessments, contributions, penalties and interest lawfully due the state or any political subdivision;

 

(ii) For the use and benefit of any person performing any work or labor or furnishing any material or goods of any kind which were used in the execution of the contract, conditioned for the performance and completion of the contract according to its terms, compliance with all the requirements of law and payment as due of all just claims for work or labor performed, material furnished and taxes, excises, licenses, assessments, contributions, penalties and interest accrued in the execution of the contract;

 

(iii) In an amount not less than fifty percent (50%) of the contract price unless the price exceeds one hundred fifty thousand dollars ($150,000.00), in which case the appropriate officer, agent or the governing body may fix a sufficient amount;

 

(iv) Approved by and filed with the appropriate officer, agent or other designee of the state or governing body of the political subdivision.

 

(b) A bond or other guarantee satisfactory to the state or political subdivision, as the case may be, shall include the obligations specified under subsection (a) of this section even though not expressly written into the guarantee.

 

(c) In default of the prompt payment of all obligations under the guarantee, a direct proceeding may be brought in any court of competent jurisdiction by the authorized officer or agency to enforce payment. The right to proceed in this matter is cumulative and in addition to other remedies provided by law.

 

16-6-113. Contractor's bond or other guarantee; right of action; notice to obligee; intervention by interested parties; pro rata distribution.

 

Any person entitled to the protection of a bond or other form of guarantee approved by the state or any political subdivision under W.S. 16-6-112, may maintain an action for the amount due him. He shall notify the obligee named in the bond or other guarantee of the beginning of the action, giving the names of the parties, describing the guarantee and stating the amount and nature of his claim. No judgment shall be entered in the action within thirty (30) days after the giving of the notice. The obligee or any person having a cause of action may on his motion, be admitted as a party to the action. The court shall determine the rights of all parties to the action. If the amount realized on the bond or other guarantee is insufficient to discharge all claims in full, the amount shall be distributed among the parties pro rata.

 

16-6-114. Contractor's bond or other guarantee; requiring new or additional bond or other guarantee; failure to furnish.

 

If in its judgment any of the sureties on a bond or other form of guarantee approved by the state or any political subdivision under W.S. 16-6-112 are insolvent or for any cause are no longer proper or sufficient sureties, the obligee may within ten (10) days require the contractor to furnish a new or additional bond or other approved guarantee. If ordered by the obligee, all work on the contract shall cease until a new or additional bond or other guarantee is furnished. If the guarantee is not furnished within ten (10) days, the obligee may at its option determine [terminate] the contract and complete the contract as the agent and at the expense of the contractor and his sureties.

 

16-6-115. Contractor's bond or other guarantee; limitation of actions.

 

No action shall be maintained on any bond or other form of guarantee satisfactory to the state or any political subdivision under W.S. 16-6-112 unless commenced within one (1) year after the date of first publication of notice of final payment of the contract.

 

16-6-116. Final settlement with and payment to contractor; required notices.

 

When any public work is let by contract the commission, board or person under whose direction or supervision the work is being carried on and conducted and upon whose approval intermediate and final estimates are paid for the construction of the work, forty (40) days before the final estimate is paid, shall cause to be published in a newspaper of general circulation, published nearest the point at which the work is being carried on, once a week for three (3) consecutive weeks, and also to post in three (3) conspicuous places on the work, a notice setting forth in substance, that the commission, board or person has accepted the work as completed according to the plans and specifications and rules set forth in the contract between the commission, board or person and the contractor, and that the contractor is entitled to final settlement therefor. The notice shall also set forth that upon the 41st day (and the notice shall specify the exact date) after the first publication of the notice the commission, board or person under whose direction or supervision the work has been carried on will pay to the contractor the full amount due under the contract. This section does not relieve the contractor and the sureties on his bond from any claims for work or labor done or materials or supplies furnished in the execution of the contract.

 

16-6-117. Final settlement with and payment to contractor; prerequisite filing of contractor's statement of payment; disputed claims.

 

In all formal contracts entered into by any person with the state, or any department or commission thereof, or with any county, city, town, school district, high school district, or other public corporation of this state, for the construction of any public building, or the prosecution and completion of any public work, or for repairs upon any public building or public work, no final payment shall be made until the person files with the officer, department or commission of the state, or with the clerk of the county, city, town or school district, or with a similar officer of any other public corporation by which the contract has been made, a sworn statement setting forth that all claims for material and labor performed under the contract have been and are paid for the entire period of time for which the final payment is to be made. If any claim for material and labor is disputed the sworn statement shall so state, and the amount claimed to be due the laborer shall be deducted from the final payment and retained by the state, county, city, town or school district authority or public corporation until the determination of the dispute, either by judicial action or consent of the parties, and then paid by the agent or agency to the persons found entitled thereto.

 

16-6-118. Unlawful interest of officeholders in public contracts or works; exception.

 

(a) It is unlawful for any person, now or hereafter holding any office, either by election or appointment, under the constitution or laws of this state, to become in any manner interested, either directly or indirectly, in his own name or in the name of any other person or corporation, in any contract, or the performance of any work in the making or letting of which the officer may be called upon to act or vote. It is unlawful for any officer to represent, either as agent or otherwise, any person, company or corporation, in respect of any application or bid for any contract or work in regard to which the officer may be called upon to vote or to take or receive, or offer to take or receive, either directly or indirectly, any money or other thing of value, as a gift or bribe, or means of influencing his vote or action in his official character. Any contracts made and procured in violation of this subsection are null and void and the person violating this subsection may be removed from office.

 

(b) Notwithstanding subsection (a) of this section, if any person is interested in any public contract or shall represent any person, company or corporation, but shall disclose the nature and extent thereof to all the contracting parties concerned therewith and shall absent himself during the considerations and vote thereon and not attempt to influence any of the contracting parties and not act directly or indirectly for the governing body in inspection, operation, administration or performance of any contract, then the acts are not unlawful under this section. This section does not apply as to the operation, administration, inspection or performance of banking and deposit contracts and relationships after the selection of a depository.

 

16-6-119. State construction; right to reject bids or responses; qualifications of bidders and respondents.

 

Every state agency, board, commission, department or institution shall be authorized to determine the qualifications and responsibilities of bidders or respondents on contracts for the construction, major maintenance or renovation of a public project, facility or structure using standard forms and procedures adopted by the department of administration and information, and may recommend that the department of administration and information reject any or all bids or responses based on the qualifications and responsibilities of bidders and respondents and readvertise for bids or responses.

 

16-6-120. Rulemaking; penalties; enforcement.

 

(a) The department of workforce services shall promulgate rules and regulations as the department determines necessary or convenient to enforce this act.

 

(b) Unless punishable under subsection (c) of this section, an individual or a business entity and any officer or member thereof that intentionally falsifies information under this act shall be:

 

(i) Fined seven hundred fifty dollars ($750.00) for each violation for each day during which the violation continues;

 

(ii) Barred from bidding on any contract subject to the provisions of this act or submitting any request for proposal on any project subject to the provisions of this act for one (1) year from the date the violation is corrected.

 

(c) Any person who signs an affidavit submitted to the department pursuant to W.S. 16-1-101(a), knowing any information contained therein is false, shall be guilty of false swearing punishable as a felony in accordance with W.S. 6-5-303(a).

 

(d) The department of workforce services is authorized and directed to enforce W.S. 16-6-101 through 16-6-206.

 

(e) In the event a contractor fails to comply with an order from the department, the director shall refer the matter to the appropriate district or county attorney for enforcement of the department's order.

 

16-6-121. Notice required to receive protection under a bond or guarantee; limitation; notice required by owner in project specifications.

 

(a) Any subcontractor or materialman entitled to the protection of a bond or other form of guarantee approved by the state or any political subdivision under W.S. 16-6-112 shall give notice of his right to that protection to the prime contractor. Failure to give notice to a prime contractor who has complied with subsections (f) and (g) of this section waives the subcontractor or materialman's protection under the bond or guarantee and waives any right to a lien for materials or services provided.

 

(b) The notice shall be given no later than sixty (60) days after the date on which services or materials are first furnished.

 

(c) The notice shall be sent to the prime contractor by certified mail or delivered to and receipted by the prime contractor or his agent. Notice by certified mail is effective on the date the notice is mailed.

 

(d) The notice shall be in writing and shall state that it is a notice of a right to protection under the bond or guarantee. The notice shall be signed by the subcontractor or materialman and shall include the following information:

 

(i) The subcontractor or materialman's name, address and phone number and the name of a contact person;

 

(ii) The name and address of the subcontractor's or materialman's vendor; and

 

(iii) The type or description of the materials or services provided.

 

(e) This section shall only apply where the prime contractor's contract is for fifty thousand dollars ($50,000.00) or more.

 

(f) The prime contractor shall post on the construction site a prominent sign citing this section and stating that any subcontractor or materialman shall give notice to the prime contractor of a right to protection under the bond or guarantee and that failure to provide the notice shall waive the subcontractor or materialman's protection under the bond or guarantee and shall waive any right to a lien for materials or services provided.

 

(g) The owner or his agent shall provide written notice of the information required by this section in the project specifications.

 

ARTICLE 2 - PREFERENCE FOR STATE LABORERS

 

16-6-201. Short title.

 

This act may be cited as the "Wyoming Preference Act of 1971".

 

16-6-202. Definitions.

 

(a) As used in this act:

 

(i) "Laborer" means a person employed to perform unskilled or skilled manual labor for wages in any capacity and does not include independent contractors;

 

(ii) "Resident" includes any person who is a citizen of the United States, or a person who is authorized to work in the United States by an agency of the federal government, and has resided in the state of Wyoming for at least one (1) year immediately preceding his application for employment;

 

(iii) "Wages" means a payment of money for labor or services according to a contract or any hourly, daily or piece-work basis;

 

(iv) "This act" means W.S. 16-6-201 through 16-6-206.

 

16-6-203. Required resident labor on public works projects; exception.

 

(a) Every person who is charged with the duty of construction, reconstructing, improving, enlarging, altering or repairing any public works project or improvement for the state or any political subdivision, municipal corporation, or other governmental unit, shall employ only Wyoming laborers on the project or improvement. Every contract let by any person shall contain a provision requiring that Wyoming labor be used except other laborers may be used when Wyoming laborers are not available for the employment from within the state or are not qualified to perform the work involved. The contract shall contain a provision requiring specific acknowledgement of the requirements of this section. A person required to employ Wyoming laborers may employ other than Wyoming laborers if:

 

(i) That person informs the nearest state workforce center of his employment needs at least eleven (11) days before work is commenced; and

 

(ii) The state workforce center certifies that the person's need for laborers cannot be filled from those Wyoming laborers listed with the Wyoming department of workforce services. The department shall respond to a person's request for certification within ten (10) days of the date the information is filed.

 

(b) Upon request by the workforce center, the general contractor shall provide the most recent construction schedule for the project.

 

16-6-204. Employees not covered by provisions.

 

All other employees of the contractor or subcontractor, other than laborers as defined by this act, are not covered by this act.

 

16-6-205. Enforcement.

 

(a) The department of workforce services shall promulgate rules and regulations required to enforce this act and is authorized and directed to enforce this act. For purposes of all investigations, the department shall have the power to issue subpoenas requiring the attendance and testimony of witnesses and the production of any books, papers, documents or records which the department deems relevant or material to the inquiry.

 

(b) Along with each application for payment for a contract subject to this act, the general contractor shall provide to the contracting entity a payroll report for all contractors and subcontractors involved in the project in a form that is consistent with federally certified reporting requirements and includes residency status for each laborer.

 

(c) This act shall not be enforced in a manner which conflicts with any federal statutes or rules and regulations.

 

16-6-206. Failure to employ state laborers; penalty.

 

(a) A person who willfully or intentionally fails to use Wyoming laborers as required in this act shall be subject to a civil penalty of not more than one thousand dollars ($1,000.00) per nonresident laborer employed per day, not to exceed a total penalty of ten percent (10%) of the amount of the person's contract. Each separate case of failure to employ Wyoming laborers on public works projects constitutes a separate offense.

 

(b) In the event a second offense occurs within a twelve (12) month period from the date of the first offense, the person shall be barred from bidding on any contract subject to the provisions of this act or submitting any request for proposal on any project subject to the provisions of this act for one (1) year from the date the second violation is corrected.

 

(c) Before a civil penalty is imposed under this section, the department of workforce services shall notify the person accused of a violation. The notice shall be served in accordance with the Wyoming Rules of Civil Procedure and contain:

 

(i) A statement of the grounds for imposing the civil penalty, including a citation to the statute involved;

 

(ii) A statement of the facts in support of the allegations;

 

(iii) A statement informing the person of the right to a hearing and that failure to timely request a hearing will result in imposition of the civil penalty stated.

 

(d) A request for hearing on a proposed civil penalty shall be in writing and shall be submitted to the department no later than seven (7) days after receipt of the notice from the department. The hearing shall be conducted as a contested case before a hearing examiner of the office of administrative hearings. The hearing shall be no later than fifteen (15) days after receipt of the request for hearing, unless the person subject to the proposed civil penalty requests an extension of time for good cause shown. The hearing officer shall recommend a decision to the director of the department. After hearing or upon failure of the accused to request a hearing, the director of the department shall determine the amount of the civil penalty to be imposed in accordance with the limitations in this section. Judicial review, if any, shall be from the decision of the director and in accordance with the provisions of the Wyoming Administrative Procedure Act.

 

(e) A civil penalty may be recovered in an action brought by the attorney general in the name of the state of Wyoming in any court of appropriate jurisdiction.

 

ARTICLE 3 - PUBLIC PRINTING CONTRACTS

 

16-6-301. Preference for resident bidders; exception; "resident" defined; violation.

 

(a) Whenever a contract is let by the state or any department thereof, or any of its subdivisions, for public printing, including reports of officers and boards, pamphlets, blanks, letterheads, envelopes and printed and lithographed matter of every kind and description whatsoever, the contract shall be let to the responsible resident making the lowest bid if the resident's bid is not more than ten percent (10%) higher than that of the lowest responsible nonresident bidder. Any successful resident bidder shall perform at least seventy-five percent (75%) of the contract within the state of Wyoming. This section shall not apply to any contract for the compilation, codification, revision, or digest of the statutes or case law of the state.

 

(b) As used in this section, "resident" means any person or business entity who has been a bona fide resident of this state as defined in W.S. 16-6-101(a)(i), for one (1) year or more immediately prior to bidding upon a contract, and who has an established printing plant in actual operation in the state of Wyoming immediately prior to bidding upon a contract.

 

(c) Any contract let or performed in violation of this section shall be null and void and no funds shall be paid for the performance thereof.

 

ARTICLE 4 - PUBLIC FACILITY LIFE-CYCLE COST ANALYSES

 

16-6-401. Definitions.

 

(a) As used in W.S. 16-6-401 through 16-6-403:

 

(i) "Economic life" means the projected or anticipated useful life of a major facility as expressed by a term of years;

 

(ii) "Energy-consumption analysis" means the evaluation of all energy systems and components by demand and type of energy including the internal energy load imposed on a major facility by its occupants, equipment and components, and the external energy load imposed on a major facility by the climatic conditions of its location. The energy-consumption projections shall take into account daily and seasonal variations in energy system output during normal operations;

 

(iii) "Energy systems" means all utilities, including heating, air-conditioning, ventilating, lighting and the supplying of domestic hot water;

 

(iv) "Initial cost" means the monies required for the capital construction or renovation of a major facility;

 

(v) "Life-cycle cost analysis" means a study to compute life-cycle costs, as required in this act;

 

(vi) "Life-cycle cost" means the cost of a major facility including its initial cost, the cost of the energy consumed over its economic life and the cost of its operation and maintenance;

 

(vii) "Major facility" means any publicly owned building having eighteen thousand (18,000) square feet or more of gross floor area;

 

(viii) "Public agency" means every state office, officer, board, commission, committee, bureau, department and all political subdivisions of the state; and

 

(ix) "Renovation" means revision to a major facility which will affect more than fifty percent (50%) of the gross floor area in the building.

 

16-6-402. Computation of life-cycle costs.

 

(a) Life-cycle costs shall be the sum of:

 

(i) Initial cost;

 

(ii) The reasonably expected fuel costs over the life of the building based on the energy consumption analysis; and

 

(iii) The reasonable costs of maintenance and operation as they pertain to energy systems.

 

(b) Life-cycle costs shall be computed for two (2) or more alternatives for construction of the facility.

 

16-6-403. Life-cycle cost analyses.

 

Public agencies shall, prior to the construction or renovation of any major facility, include in the design phase a provision requiring that life-cycle cost analyses be prepared for two (2) or more alternatives for the construction of the facility. These life-cycle cost analyses shall be available to the public. The life-cycle costs shall be a consideration in the selection of a building design by a public agency.

 

ARTICLE 5 - ACCESSIBILITY OF HANDICAPPED TO PUBLIC BUILDINGS

 

16-6-501. Building plans and specifications; required facilities; elevators; curb ramps; inspections; exceptions.

 

(a) The plans and specifications for the construction of or additions to all buildings for general public use built by the state or any governmental subdivision, school district or other public administrative body within the state, shall provide facilities and features conforming with the specifications set forth in the publication entitled "American Standard Specifications for Making Buildings and Facilities Accessible to and Usable by the Physically Handicapped" (U.S. Patent No. A117.1-1961) as approved October 31, 1961, by the American Standards Association, now called the American National Standards Institute, Inc. Elevators shall be installed in multiple-story buildings to serve all levels normally used by the general public. Elevators shall have the following features:

 

(i) The bottom of the elevator control panels shall be no higher than four (4) feet from the elevator floor and the top of elevator control panels shall be no higher than five (5) feet from the elevator floor;

 

(ii) Elevator call buttons shall be mounted no higher than four (4) feet above the floor;

 

(iii) Elevator control and building call buttons shall have tactile identification beside them;

 

(iv) Elevator floor levels shall stop within one-half (1/2) inch of the maximum building floor levels; and

 

(v) Elevator control panels shall be mounted on the right side of the elevator as viewed from within the elevator.

 

(b) Every curb or sidewalk to be constructed or reconstructed in Wyoming, where both are provided and intended for public use, whether constructed with public or private funds, shall provide a ramp at points of intersection between pedestrian and motorized lines of travel and no less than two (2) curb ramps per lineal block. Design for curb ramps shall take into consideration the needs of all physically handicapped persons including blind pedestrians. Existing design standards will be available from the governor's committee for employment of the handicapped. If future improvements in the curb ramp design will benefit handicapped and elderly persons, designs stipulated in this article may be altered after full hearings on the proposed changes by the administrator of the division of vocational rehabilitation, the program manager of the governor's committee on employment of people with disabilities and the state fire marshal.

 

(c) The state fire marshal or city engineer shall inspect any structure described in subsection (a) of this section at the request of any person. Curb ramps shall be modified or reconstructed by the contracting authority to meet the requirements of W.S. 16-6-501 through 16-6-504.

 

(d) Exceptions may be granted by the state fire marshal in consultation with the administrator of the division of vocational rehabilitation, the program manager of the governor's committee on employment of people with disabilities, and the occupational health and safety commission chairman.

 

16-6-502. Building plans and specifications; state fire marshal; review and approval.

 

All plans and specifications for the construction of or additions to buildings for general public use, built by the state or any governmental subdivision, school district or other public administrative body within this state, shall be submitted for review and approval by the state fire marshal, who shall approve if he finds the plans provide facilities which conform to the specifications set forth in "American Standard Specifications for Making Buildings and Facilities Accessible to and Usable by the Physically Handicapped" (U.S. Patent No. A117.1-1961) as approved October 31, 1961, by the American Standards Association, now called the American National Standards Institute, Inc., and W.S. 16-6-501, subject however to the waiver specified above.

 

16-6-503. Building plans and specifications; state fire marshal; ruling and determination; filing of written objection.

 

The state fire marshal shall within five (5) days mail a copy of his ruling and determination to the contracting authority and to any other interested or affected person, as defined under the Wyoming Administrative Procedure Act, who has made timely request of the state fire marshal for receipt of copies of all rulings and determinations. All mailings by the state fire marshal made under this section shall be made by certified mail. Any time within ten (10) days after receipt of the ruling or determination made by the state fire marshal the contracting authority or any other interested or affected person may object to the determination, or any part thereof as the contracting authority or any other interested or affected person deems objectionable by filing a written notice with the state fire marshal, stating the specific grounds of the objection. The written objection shall be filed in the records of the state fire marshal and shall be available for inspection by any person who may be affected.

 

16-6-504. Building plans and specifications; hearing on objection; final administrative determination; judicial review.

 

(a) Within five (5) days of the receipt of the objection, the state fire marshal shall notify the department of fire prevention and electrical safety of the objection. That department shall set a date for a hearing on the objection to be held not less than ten (10) days nor more than thirty (30) days following receipt of the objection notice from the state fire marshal. Written notice of the time and place of the hearing shall be given by the department to the contracting authority and any other interested and affected persons at least ten (10) days prior to the date set for the hearing.

 

(b) The procedure before the department of fire prevention and electrical safety for hearing of objections shall be as provided in the Wyoming Administrative Procedure Act.

 

(c) Within ten (10) days of the conclusion of the hearing, the department shall rule on the written objections and make the final determination it determines that the evidence warrants. Immediately upon its final determination, the department shall serve a certified copy thereof on the contracting authority and all other interested and affected persons who may have appeared at the hearing, by personal service or by registered or certified mail.

 

(d) The final decision of the department of fire prevention and electrical safety is subject to review in accordance with the Wyoming Administrative Procedure Act. All proceedings in any district court affecting a determination of the department of fire prevention and electrical safety shall have priority in hearing and determination over all other civil proceedings pending in the court, except election contests.

 

ARTICLE 6 - PAYMENT OF AGENCY ACCOUNTS

 

16-6-601. Definitions.

 

(a) As used in this article:

 

(i) "Agency" means any department, agency or other instrumentality of the state or of a political subdivision of the state;

 

(ii) "Goods" means all personal property purchased, procured or contracted for by an agency, including leases of real property or other arrangements for the use of space;

 

(iii) "Services" means all services purchased, procured or contracted for by an agency, including construction services.

 

16-6-602. Payment of agency accounts; interest.

 

Except as provided by contract, any agency which purchases or procures goods and services from a nongovernmental entity shall pay the amount due within forty-five (45) days after receipt of a correct notice of amount due for the goods or services provided or shall pay interest from the forty-fifth day at the rate of one and one-half percent (1 1/2%) per month on the unpaid balance until the account is paid in full, unless a good faith dispute exists as to the agency's obligation to pay all or a portion of the account.

 

ARTICLE 7 - CONSTRUCTION CONTRACTS WITH PUBLIC ENTITIES

 

16-6-701. Definitions.

 

(a) As used in this act:

 

(i) "Acceptable depository" means a state or national bank or a savings and loan association or credit union in which deposits are insured;

 

(ii) "Contractor" means any person who is a party to a contract with a public entity to construct, renovate or perform major maintenance of any highway, public building, public work or public improvement, structure or system;

 

(iii) "Public entity" means this state or a county, city, town or any political subdivision thereof;

 

(iv) "Substantial completion" means the date when the construction is sufficiently complete, in accordance with the contract documents, as modified by any change orders agreed to by the parties, so that the work or designated portion thereof is available for use by the owner;

 

(v) "Alternate design and construction delivery method" means the delivery method described by any qualifications based procurement of design and construction services, including all procedures, actions, events, contractual relationships, obligations and forms of agreement for the successful completion of the design and construction, major maintenance or renovation of any public building, work, improvement, facility, structure or system other than by design, bid and build. Alternate design and construction delivery methods available to a public entity include construction manager agent, construction manager at risk or design-builder;

 

(vi) "Construction manager agent" means a type of construction management delivery where the professional service is procured under existing statutes for professional services. The construction manager agent is a construction consultant providing administrative and management services to the public entity throughout the design and construction phases of a project. Under this delivery method, the construction manager agent is not the contracting agent and is not responsible for purchase orders;

 

(vii) "Construction manager at-risk" means a type of construction management delivery in which the construction manager at-risk is an advocate for the public entity as determined by the contracts throughout the preconstruction phase of a project. In the construction phase of a project, the construction manager at-risk is responsible for all project subcontracts and purchase orders and may conduct all or a portion of the construction project work. Under this delivery method, the construction manager at-risk is responsible for providing a guaranteed maximum price for the project to the public entity prior to commencing the construction project and the construction manager at-risk shall be required to bond any project with a guaranteed maximum price in excess of two hundred fifty thousand dollars ($250,000.00) in accordance with W.S. 16-6-112;

 

(viii) "This act" means W.S. 16-6-701 through 16-6-708;

 

(ix) "Design-build" means a type of construction delivery method in which there is a single contract between the public entity and a design-builder who furnishes architectural, engineering and other related design services as required for the public project, as well as labor, materials and other construction services necessary to construct the project. A design-builder may be selected by the public entity based on evaluation of responses to a request for qualifications, fixed scope request for proposal or fixed price request for proposal. The following shall apply:

 

(A) A design-builder may be selected based solely on a response to a request for qualification for projects with an estimated construction cost of five hundred thousand dollars ($500,000.00) or less provided there are not less than two (2) respondents;

 

(B) Responses to a fixed scope request for proposal or a fixed price request for proposal shall be used as the bases for selection for a project with an estimated construction cost of more than five hundred thousand dollars ($500,000.00);

 

(C) Interested parties shall first respond to a request for qualification. Based on responses to the request for qualification a minimum of two (2) and maximum of five (5) respondents may be selected to respond to a fixed scope request for proposal or a fixed price request for proposal;

 

(D) The respondent chosen by evaluation to provide the best overall value for the project shall be selected in response to a fixed scope request for proposal or a fixed price request for proposal. The best overall value shall be determined based on criteria set forth by the public entity letting the project and may include, but is not limited to, qualifications, price, quality of materials and products, past experience and schedule;

 

(E) All unsuccessful respondents to a response for a fixed scope request for proposal or fixed price request for proposal may be compensated at the discretion of the public entity based upon a percentage of the price of the project as proposed by the successful respondent in the respondent's original proposal. Any compensation provided pursuant to this subparagraph shall be clearly specified in the request for proposal.

 

(x) "Design-builder" means an entity that provides design-build services as described under paragraph (ix) of this subsection whether by itself or through subcontractual arrangements with other entities;

 

(xi) "Fixed price request for proposal" means a request for an oral and written presentation of all qualifications deemed pertinent to the project by the public entity in addition to a schematic design and detailed description of all materials and products proposed to accommodate a preliminary project program prepared by the public entity and provided in the fixed price request for proposal. The successful respondent shall construct the project described in their design and material and product description for a fixed price prepared by the public entity and provided in the fixed price request for proposal. The final guaranteed maximum price and scope for the project may be altered from the request for proposal and negotiated with the successful respondent at the discretion of the public entity;

 

(xii) "Fixed scope request for proposal" means a request for an oral and written presentation of all qualifications deemed pertinent to the project by the public entity in addition to a guaranteed maximum price for a preliminary design prepared by the design builder incorporating all elements of a fixed scope for the project prepared by the public entity and provided in the fixed scope request for proposal. The final guaranteed maximum price and scope for the project may be altered from the request for proposal and negotiated with the successful respondent at the discretion of the public entity;

 

(xiii) "Request for qualification" means a request for an oral or written presentation of all qualifications deemed pertinent to the project by the public entity. The request for qualification shall include not less than all the provisions contained in W.S. 16-6-707(b).

 

16-6-702. Public entity; contracts; partial payments; alternate delivery methods authorized.

 

(a) Notwithstanding W.S. 15-1-113(e), a public entity awarding a contract for the construction, major maintenance or renovation of any highway, public building, public work or public improvement, structure or system shall authorize partial payments of the amount due under the contract as stipulated in the contract document or as soon thereafter as practicable, to the contractor if the contractor is satisfactorily performing the contract. No more than ten percent (10%) of the calculated value of any work completed shall be withheld until fifty percent (50%) of the work required by the contract has been performed. Thereafter, the public entity may pay any of the remaining installments without retaining additional funds if, in the opinion of the public entity, satisfactory progress is being made in the work but under no condition shall more than ten percent (10%) be withheld on the remaining fifty percent (50%) of the work required. The withheld percentage of the contract price of the work, major maintenance, renovation or construction shall be retained in an account in the name of the contractor which has been assigned to the public entity until the contract is completed satisfactorily and finally accepted by the public entity. If the public entity finds that satisfactory progress is being made in all phases of the contract, it may, upon written request by the contractor, authorize payment from the withheld percentage. Before the payment is made, the public entity shall determine that satisfactory and substantial reasons exist for the payment and shall require written approval from any surety furnishing bonds for the contract work.

 

(b) Alternate design and construction delivery methods may be used by a public entity to design, construct, renovate or perform major maintenance of a public works projects.

 

16-6-703. Contract; completion by public entity; partial payments.

 

If it becomes necessary for a public entity to take over the completion of any contract, all of the amounts owing the contractor, including the withheld percentage, shall first be applied toward the cost of completion of the contract. Any balance remaining in the retained percentage after completion by the public entity shall be payable to the contractor or the contractor's creditors. The retained percentage which may be due any contractor shall be due and payable as prescribed by W.S. 16-6-116.

 

16-6-704. Interest bearing deposit agreement; requirement to enter into.

 

A public entity shall enter into an interest bearing deposit agreement with any depository designated by the contractor, after notice to the surety, to provide an agent for the custodial care and servicing of any deposits placed with him pursuant to this act on any contract of more than twenty-five thousand dollars ($25,000.00). The services shall include the safekeeping of the obligations and the rendering of all services required to effectuate the purposes of this act.

 

16-6-705. Custodian for obligations; collection of interest income - payable to contractor.

 

The public entity or any depository designated by the contractor to serve as custodian for the obligations pursuant to W.S. 16-6-704 shall collect all interest and income when due on obligations so deposited and shall pay them, when and as collected, to the contractor or as otherwise instructed by the contractor. Any expense incurred for this service shall not be charged to the public entity.

 

16-6-706. Applicability of provisions.

 

This act does not apply in the case of a contract made or awarded by any public entity if a part of the contract price is to be paid with funds from the federal government or from some other source and if the federal government or the other source has requirements concerning retention or payment of funds which are applicable to the contract and which are inconsistent with this act.

 

16-6-707. Construction management alternate delivery method.

 

(a) Excluding contracts for professional services, construction management and design-build delivery negotiations by public entities and construction managers shall be in accordance with residency and preference requirements imposed under W.S. 16-6-101 through 16-6-107.

 

(b) Formal requests for proposal for preconstruction or construction services by a construction manager or a design-builder submitted by a public entity shall require at least the following information:

 

(i) The location of the primary place of business;

 

(ii) The name and identification of individuals to be assigned to the project;

 

(iii) Experience with similar projects;

 

(iv) Qualifications;

 

(v) Ability to protect the interests of the public entity during the project;

 

(vi) Ability to meet project budget and time schedule requirements;

 

(vii) Excluding contracts for professional services, compliance with W.S. 16-6-101 through 16-6-107; and

 

(viii) For design-build alternative construction delivery methods, the names of the prime consultants used for architectural and engineering design services.

 

(c) Negotiations between a public entity and a construction manager at-risk shall require that the construction manager at-risk comply with the residency and preference requirements imposed under W.S. 16-6-101 through 16-6-107 in the procurement of subcontractors and materials.

 

16-6-708. Responsibilities under alternative delivery contracts.

 

(a) Any construction manager agent, construction manager at risk or design-builder contract awarded shall comply with any reporting and administrative requirements as required by the public entity of the recipient of a design, bid and build contract, including retainage, payment and performance bonding and default of contract.

 

(b) All bids received under this section including subcontractor bids, shall be opened in public following reasonable public notice.

 

ARTICLE 8 - WORKS OF ART IN PUBLIC BUILDINGS

 

16-6-801. Definitions.

 

(a) As used in this article:

 

(i) "Agency" means any state office, department, board, commission or institution and any community college district to which funds have been appropriated, bonded or otherwise provided by the state for the design and original construction of any new building;

 

(ii) "Architect" means any person licensed to practice architecture pursuant to W.S. 33-4-101 through 33-4-117 and designated as the project architect for a specific capital construction project;

 

(iii) "Artist" means any practitioner generally recognized by peers or critics as a professional who produces works of art;

 

(iv) "Building" means any permanent structure and any appurtenant structure intended to function as an office, courtroom, hearing or meeting room or other space for carrying on the operation of any agency and any auditorium, meeting room, classroom or other educational facility, library or museum space, or information center for use by the public, excluding utility lines, water projects, fish ponds, school buildings, city buildings, county buildings, public restrooms at state parks, separate structures which are not part of a larger construction project intended solely as storage, warehouse or maintenance and repair facilities;

 

(v) "Construction cost" means the cost for the actual design and original construction of any new building which is funded in total or in part by appropriated state funds, excluding land acquisition. The phrase does not include the cost for any building funded in part by city or county funds;

 

(vi) "Department" means the department of state parks and cultural resources acting through the Wyoming arts council established under W.S. 9-2-901;

 

(vii) "User" means that agency with principal administrative responsibility for the actual use of any building;

 

(viii) "Works of art" means any frescoe, mosaic, sculpture, drawing, painting, photograph, calligraphy, graphic art, stained glass, wall hanging, tapestry, fountain, ornamental gateway, monument, display, architectural embellishment, craft, architectural landscape or any work of mixed media by an artist.

 

16-6-802. Construction of new public buildings; state funds.

 

(a) The original construction of any new building shall include works of art for public display, which shall be included by the agency in determining total construction costs of the building at an amount equal to one percent (1%) of total costs but not to exceed one hundred thousand dollars ($100,000.00) on any one (1) project. Any new construction project for which the total cost is less than one hundred thousand dollars ($100,000.00) is exempt from this subsection.

 

(b) Prior to transferring or authorizing the expenditure of any state funds for the original construction of any new building, the state auditor shall transfer to the state treasurer an amount equal to the amount specified under subsection (a) of this section for works of art. Upon receipt, the state treasurer shall deposit the amount transferred into a separate account, together with any grants, gifts or other funds received or appropriated by the state for the sole purpose of acquiring works of art for placement in buildings. Amounts deposited within the separate account shall be expended by the department for the acquisition of works of art by purchase, lease, commission or otherwise, the maintenance of works of art placed in buildings pursuant to this article and for the administration of this article.

 

16-6-803. Department of commerce to acquire works of art; advisory panel to consult in acquisition; procedure; public education programs.

 

(a) In administering this article, the department shall in consultation with the advisory panel selected pursuant to subsection (c) of this section, designate works of art and sites for placement within buildings and shall accordingly and as necessary, select, purchase, commission, review, place, accept, sell, exchange or dispose of works of art.

 

(b) The acquisition of works of art from funds within the separate account established under W.S. 16-6-802(b) shall not require advertisement for bids.

 

(c) The department shall select a panel to serve in an advisory capacity to the department in selecting and designating works of art, comprised of representatives of the community in which the building is located, the user agency, the art community and the architect involved in the original construction of the building. Each panel member shall receive reimbursement for travel and per diem in the same amount and manner as by law provided for state employees.

 

(d) The department shall by rule and regulation establish the jury procedure for works of art acquired under this article, which shall at minimum:

 

(i) Give preference to Wyoming artists;

 

(ii) Prohibit consideration of any work of art of any panel member or a member of his immediate family for the project on which the panel member is serving;

 

(iii) Require cooperation and communication with local and national art agencies;

 

(iv) Provide a process for the transfer of acquired works of art from one (1) location to another.

 

(e) The department may, upon request of any agency, authorize the acquisition of works of art through the pooling of funds available from small, multiple new construction projects and through the use of funds within the separate account as matching any funds available from nonstate sources.

 

(f) In addition to other duties imposed under this article, the department shall develop and implement public education programs on the purpose of this article, the process for selecting works of art for placement in buildings, the state art collection and on the acquired works of art.

 

16-6-804. Acquisitions property of state art collection; maintenance; expenses.

 

(a) Upon acquisition of any work of art in accordance with this article, the work of art becomes the property of the state art collection and the department, through the state museum, shall:

 

(i) Maintain an inventory of the acquired work of art;

 

(ii) Maintain and preserve the work of art; and

 

(iii) Periodically review and examine the acquired work of art and report to the director of the department on any necessary restoration, repair, deaccession or replacement of the work of art.

 

(b) The expenses incurred by the department in performing duties imposed under this section shall be paid from the separate account established under W.S. 16-6-802(b), which shall not exceed ten percent (10%) of the total amount expended for any specific work of art.

 

16-6-805. Application.

 

Nothing in this article shall limit the acquisition or placement of works of art acquired from other nonstate sources nor shall this article limit the use of architectural, functional or structural detailing or garnishing in the construction, remodeling, renovation or restoration of any building.

 

ARTICLE 9 - USE OF APPRENTICESHIP PROGRAMS ON PUBLIC WORKS PROJECTS

 

16-6-901. Definitions.

 

(a) As used in this act, unless the context clearly requires otherwise:

 

(i) "Apprentice" means an apprentice enrolled and registered in an approved apprenticeship training program;

 

(ii) "Apprentice utilization preference" means the preference that is given to public works contract bidders who commit to ensure the appropriate percentage of labor hours will be performed by apprentices;

 

(iii) "Labor hours" means the total hours of workers receiving an hourly wage who are directly employed on the site of the public works project. "Labor hours" includes hours worked by persons employed by the contractor and all subcontractors working on the project. "Labor hours" does not include hours worked by foremen, superintendents and owners;

 

(iv) "Approved apprenticeship training program" means an apprenticeship training program approved by and registered with the bureau of apprenticeship and training, United States department of labor;

 

(v) "Department" means the department of workforce services.

 

16-6-902. Apprentices to be used on public works projects; waiver; report.

 

(a) For all public works awarded by the state, the University of Wyoming, a community college or a school district pursuant to W.S. 16-6-101 through 16-6-206 estimated to cost one million dollars ($1,000,000.00) or more, a contractor who commits to ensure that not less than ten percent (10%) of the labor hours shall be worked by apprentices shall have his bid considered as if his bid were one percent (1%) lower than the actual dollar value of his bid. The contractor awarded a contract under this section, after consideration of all other applicable preferences under this chapter, shall be awarded the contract at the actual dollar value of his bid under this section. This subsection shall not apply to those state agencies that have a recognized or approved apprenticeship training program requirement by the United States department of labor or other appropriate federally funded program.

 

(b) Following award of a contract under subsection (a) of this section, the department may, upon a demonstration of good cause shown by the contractor, excuse the contractor from the requirement that not less than ten percent (10%) of the labor hours on a specific project be performed by apprentices.

 

(c) A contractor awarded a contract under this section shall make reasonable efforts to comply with the apprentice utilization preference provisions in this section so that the appropriate percentage of total labor hours is performed by apprentices. The contractor shall report to the department within fifteen (15) days after completion of the project, providing a statement describing compliance with the provisions of subsection (a) of this section if he received preferential consideration of his bid based on a commitment to ensure the specified total labor hours on the project would be performed by apprentices. The department shall report to the agency that awarded the contract, any contractor who received preferential consideration of his bid based on a commitment to ensure the specified total labor hours would be performed by apprentices on a project and who fails to file such report, or who fails to meet the total labor hours commitment for apprentices specified in his bid. Any contractor failing to file a report or failing to meet the total labor hours requirement for apprentices specified in his bid shall forfeit one percent (1%) of the total project cost to the state agency that awarded the contract, which amount shall be credited to the account from which the project was funded, unless good cause is shown as provided in subsection (b) of this section.

 

(d) The department shall promulgate rules and regulations to implement the provisions of this section.

 

(e) The department shall provide necessary assistance to an agency awarding a contract subject to the provisions of this section. The department shall collect the following data from each affected contractor for each project covered by this section:

 

(i) The number of apprentices and labor hours worked by them;

 

(ii) The number, type and rationale for the exceptions granted under subsection (b) of this section.

 

(f) Repealed By Laws 2008, Ch. 44, 2.

 

(g) By January 1 of each year beginning in 2007, the department shall compile and summarize the collected data in subsection (e) of this section and provide a report to the governor, the joint labor, health and social services interim committee and the joint education interim committee. The report shall include any recommendations for modifications or improvements to the apprentice utilization program.

 

ARTICLE 10 - CAPITAL CONSTRUCTION PROJECTS

 

16-6-1001. Capital construction projects restrictions; preference requirements; waivers.

 

(a) Unless otherwise prohibited by federal law, any funds appropriated or authorized for expenditure for capital construction projects shall be subject to the restrictions of this section which shall be construed where possible as complimentary and consistent with other statutory requirements relating to competitive bidding and contractor preferences. To the extent the restrictions in this section are inconsistent with other state statutes, this section shall supersede all such inconsistent provisions and shall govern. This section shall be applied as follows:

 

(i) This paragraph shall apply to any alternate design and construction delivery method as defined in W.S. 16-6-701(a)(v):

 

(A) All contracts shall require the construction manager at risk or design builder to conduct an open bid process in compliance with Wyoming contractor preference laws before awarding any subcontracts for work covered under the contract;

 

(B) Unless exempted pursuant to subparagraph (C) of this paragraph the construction manager at risk or design builder shall award to responsible Wyoming resident contractors not less than seventy percent (70%) of the work covered by the manager's or builder's contract. As used in this subparagraph "work covered" shall be calculated using the total contract price and the total of payments made to all subcontractors under the contract, including materials but excluding from both amounts the price for any part of the contract for which a waiver is provided under subparagraph (C) of this paragraph;

 

(C) The requirement of subparagraph (B) of this paragraph may be waived for any part of the subcontract work to be performed under the contract. If waived in part, the remaining value of the total subcontract work to be performed under the contract is subject to and shall be used to calculate compliance with the requirement of subparagraph (B) of this paragraph. A waiver shall require a written determination that:

 

(I) The work to be performed is specialized or of such a scale that it can be more suitably performed by out-of-state contractors;

 

(II) The bid amounts submitted by responsible Wyoming subcontractors exceed one hundred five percent (105%) of the costs of out-of-state providers for equivalent quality of work or services;

 

(III) The enforcement of the requirement would unreasonably delay completion of construction; or

 

(IV) There were insufficient responsible Wyoming contractors submitting bids to make the seventy percent (70%) requirement.

 

(V) Repealed by Laws 2012, Ch. 106, 2.

 

(D) Any waiver shall be approved in writing by the following persons:

 

(I) For projects to be completed by the state of Wyoming, by the director of the department of administration and information;

 

(II) For projects to be completed by the University of Wyoming, by the president of the university and the president of the board of trustees;

 

(III) For projects subject to review by the school facilities department, by the director of the school facilities commission and the chairman of the board of the school facilities commission;

 

(IV) For projects completed by a community college, by the community college president and its chairman of the board of trustees;

 

(V) For all other projects, by the respective governing body.

 

(E) Any approved waiver shall be documented in writing and provided to the governor. Notice of all approved waivers shall also be published on a website maintained by the construction management division of the department of administration and information, including a statement of the grounds for the waiver.

 

(ii) Unless exempted pursuant to subparagraph (D) of this paragraph, this paragraph shall apply to all construction delivery methods:

 

(A) The procurement of furniture and movable equipment shall be done by competitive bid based upon either:

 

(I) Generic specifications; or

 

(II) Specifications addressing performance standards and functional requirements determined by the agency, but without specification of individual brands or manufacturers.

 

(B) No person who was employed by the agency to prepare the bid documents, whether with or without compensation, shall be eligible to bid on the final bid package;

 

(C) A five percent (5%) preference shall be granted to responsible Wyoming resident suppliers for procurements by public entities subject to this paragraph and that are used in and incorporated into a public capital construction project;

 

(D) The requirements of subparagraph (A) or (B) of this paragraph may be waived for furniture or movable equipment upon a written determination that the furniture or movable equipment requirements of the project are so specialized or that an item or type of furniture or movable equipment is so unique or uncommon that failure to waive the requirements would materially impair the functionality of the project. Waivers under this subparagraph shall be approved by the persons listed in subparagraph (a)(i)(D) of this section and are subject to subparagraph (a)(i)(E) of this section.

 

(iii) All bids shall be opened in public at a location designated by the public entity soliciting the bid. This paragraph shall apply to all construction delivery methods;

 

(iv) Contractor progress payments shall be made only in accordance with this paragraph. If a contracting entity determines that a general contractor in good standing on a project requires a progress payment due for work completed in a workmanlike manner in order to pay a materialman, subcontractor or laborer for their work performed to date, the entity may issue the progress payment upon verification that all materialmen, subcontractors and laborers have been paid for completed work through the date of the most recent previous progress payment. If a progress payment has been withheld by a general contractor due to a reasonable dispute between a general contractor and a materialman, subcontractor or laborer, further progress payments shall not be paid to the general contractor but shall be retained in accordance with the guidelines addressing disputed final payments under the provisions of W.S. 16-6-117. A person submitting false information regarding a progress payment subject to this paragraph shall be subject to the provisions of W.S. 16-6-120.

 

(b) No funds subject to this section shall be expended unless the contracting agency has submitted a plan to the governor which promotes the employment of responsible Wyoming resident design firms, including professional architectural and engineering services as defined by W.S. 9-2-1028(a)(v), in the planning and design phases of facilities funded with monies subject to this section. The plans shall allow for partnerships between responsible Wyoming design firms, including professional architectural and engineering services, and nonresident firms when necessary to secure specialized services required for a project. The contracting agency shall evaluate and consider overall qualifications, residency, fee proposal, past performance and level of services in the final decisions.

 

(c) Any entity which has received an appropriation of state funds on or after July 1, 2008, for any capital construction project shall conduct a review of each project funded with state funds to assess whether contractors that were awarded contracts using a resident preference complied in all respects to applicable resident preference laws. If the entity determines that there is reasonable suspicion that a contractor failed to comply with the resident preference laws, the entity shall report the matter to the department of workforce services and the attorney general. The department of workforce services and the attorney general shall take such enforcement action on behalf of the state of Wyoming and the entity against the contractor as they deem appropriate. An entity shall be required to conduct only one (1) review under this subsection after March 1, 2011.

 

(d) The governor may modify any requirement of this section by executive order if he determines it to be necessary to promote effective competitive bidding. Any order shall be effective only until June 30, 2012 or until superseded by law.

 

(e) Repealed by Laws 2013, Ch. 134, 2.