Chapter 143.
State Departments, Institutions, and Commissions
Article 1.
Executive Budget Act.
§ 143‑1: Repealed by Session Laws 2006‑203, s. 1, effective July 1, 2007, and applicable to the budget for the 2007‑2009 biennium and each subsequent biennium thereafter.
§ 143‑2: Repealed by Session Laws 2006‑203, s. 1, effective July 1, 2007, and applicable to the budget for the 2007‑2009 biennium and each subsequent biennium thereafter.
§ 143‑3: Repealed by Session Laws 2006‑203, s. 1, effective July 1, 2007, and applicable to the budget for the 2007‑2009 biennium and each subsequent biennium thereafter.
§ 143‑3.1: Repealed by Session Laws 2006‑203, s. 1, effective July 1, 2007, and applicable to the budget for the 2007‑2009 biennium and each subsequent biennium thereafter.
§ 143‑3.2: Repealed by Session Laws 2006‑203, s. 1, effective July 1, 2007, and applicable to the budget for the 2007‑2009 biennium and each subsequent biennium thereafter.
§ 143‑3.3: Repealed by Session Laws 2006‑203, s. 1, effective July 1, 2007, and applicable to the budget for the 2007‑2009 biennium and each subsequent biennium thereafter.
§ 143‑3.4: Repealed by Session Laws 2006‑203, s. 1, effective July 1, 2007, and applicable to the budget for the 2007‑2009 biennium and each subsequent biennium thereafter.
§ 143‑3.5: Repealed by Session Laws 2006‑203, s. 1, effective July 1, 2007, and applicable to the budget for the 2007‑2009 biennium and each subsequent biennium thereafter.
§ 143‑3.6: Expired.
§ 143‑3.7: Repealed by Session Laws 1997‑443, s. 23(b).
§ 143‑4: Repealed by Session Laws 2006‑203, s. 1, effective July 1, 2007, and applicable to the budget for the 2007‑2009 biennium and each subsequent biennium thereafter.
§ 143‑4.1: Repealed by Session Laws 2006‑203, s. 1, effective July 1, 2007, and applicable to the budget for the 2007‑2009 biennium and each subsequent biennium thereafter.
§ 143‑5: Repealed by Session Laws 2006‑203, s. 1, effective July 1, 2007, and applicable to the budget for the 2007‑2009 biennium and each subsequent biennium thereafter.
§ 143‑6: Repealed by Session Laws 2006‑203, s. 1, effective July 1, 2007, and applicable to the budget for the 2007‑2009 biennium and each subsequent biennium thereafter.
§ 143‑6.1: Repealed by Session Laws 2006‑203, s. 1, effective July 1, 2007, and applicable to the budget for the 2007‑2009 biennium and each subsequent biennium thereafter.
§ 143‑6.2. Repealed by Session Laws 2006-203, s. 1, effective July 1, 2007, and applicable to the budget for the 2007‑2009 biennium and each subsequent biennium thereafter.
§ 143‑7: Repealed by Session Laws 2006‑203, s. 1, effective July 1, 2007, and applicable to the budget for the 2007‑2009 biennium and each subsequent biennium thereafter.
§ 143‑8: Repealed by Session Laws 2006‑203, s. 1, effective July 1, 2007, and applicable to the budget for the 2007‑2009 biennium and each subsequent biennium thereafter.
§ 143‑9: Repealed by Session Laws 2006‑203, s. 1, effective July 1, 2007, and applicable to the budget for the 2007‑2009 biennium and each subsequent biennium thereafter.
§ 143‑10: Repealed by Session Laws 2006‑203, s. 1, effective July 1, 2007, and applicable to the budget for the 2007‑2009 biennium and each subsequent biennium thereafter.
§ 143‑10.1: Repealed by Session Laws 1991, c. 689, s. 342.
§ 143‑10.1A: Repealed by Session Laws 2006‑203, s. 1, effective July 1, 2007, and applicable to the budget for the 2007‑2009 biennium and each subsequent biennium thereafter.
§ 143‑10.2: Repealed by Session Laws 2006‑203, s. 1, effective July 1, 2007, and applicable to the budget for the 2007‑2009 biennium and each subsequent biennium thereafter.
§§ 143‑10.3 through 143‑10.6: Repealed by Session Laws 2001‑424, s. 12.2(a), effective July 1, 2001.
§ 143‑10.7: Repealed by Session Laws 2006‑203, s. 1, effective July 1, 2007, and applicable to the budget for the 2007‑2009 biennium and each subsequent biennium thereafter.
§ 143‑11: Repealed by Session Laws 2006‑203, s. 1, effective July 1, 2007, and applicable to the budget for the 2007‑2009 biennium and each subsequent biennium thereafter.
§ 143‑11.1: Repealed by Session Laws 1983, c. 717, s. 55.
§ 143‑12: Repealed by Session Laws 2006‑203, s. 1, effective July 1, 2007, and applicable to the budget for the 2007‑2009 biennium and each subsequent biennium thereafter.
§ 143‑12.1: Repealed by Session Laws 2006‑203, s. 1, effective July 1, 2007, and applicable to the budget for the 2007‑2009 biennium and each subsequent biennium thereafter.
§ 143‑13: Repealed by Session Laws 2006‑203, s. 1, effective July 1, 2007, and applicable to the budget for the 2007‑2009 biennium and each subsequent biennium thereafter.
§ 143‑14: Repealed by Session Laws 2006‑203, s. 1, effective July 1, 2007, and applicable to the budget for the 2007‑2009 biennium and each subsequent biennium thereafter.
§ 143‑15: Repealed by Session Laws 2006‑203, s. 1, effective July 1, 2007, and applicable to the budget for the 2007‑2009 biennium and each subsequent biennium thereafter.
§ 143‑15.1: Repealed by Session Laws 2006‑203, s. 1, effective July 1, 2007, and applicable to the budget for the 2007‑2009 biennium and each subsequent biennium thereafter.
§ 143‑15.2: Repealed by Session Laws 2006‑203, s. 1, effective July 1, 2007, and applicable to the budget for the 2007‑2009 biennium and each subsequent biennium thereafter.
§ 143‑15.3: Repealed by Session Laws 2006‑203, s. 1, effective July 1, 2007, and applicable to the budget for the 2007‑2009 biennium and each subsequent biennium thereafter.
§ 143‑15.3A: Repealed by Session Laws 2006‑203, s. 1, effective July 1, 2007, and applicable to the budget for the 2007‑2009 biennium and each subsequent biennium thereafter.
§ 143‑15.3B: Repealed by Session Laws 2006‑203, s. 1, effective July 1, 2007, and applicable to the budget for the 2007‑2009 biennium and each subsequent biennium thereafter.
§ 143‑15.3C: Repealed by Session Laws 2006‑203, s. 1, effective July 1, 2007, and applicable to the budget for the 2007‑2009 biennium and each subsequent biennium thereafter.
§ 143‑15.3D: Repealed by Session Laws 2006‑203, s. 1, effective July 1, 2007, and applicable to the budget for the 2007‑2009 biennium and each subsequent biennium thereafter.
§ 143‑15.3E: Repealed by Session Laws 2006‑203, s. 1, effective July 1, 2007, and applicable to the budget for the 2007‑2009 biennium and each subsequent biennium thereafter.
§ 143‑15.4: Repealed by Session Laws 2006‑203, s. 1, effective July 1, 2007, and applicable to the budget for the 2007‑2009 biennium and each subsequent biennium thereafter.
§ 143‑16: Repealed by Session Laws 2006‑203, s. 1, effective July 1, 2007, and applicable to the budget for the 2007‑2009 biennium and each subsequent biennium thereafter.
§ 143‑16.1: Repealed by Session Laws 2006‑203, s. 1, effective July 1, 2007, and applicable to the budget for the 2007‑2009 biennium and each subsequent biennium thereafter.
§ 143‑16.2: Repealed by Session Laws 2006‑203, s. 1, effective July 1, 2007, and applicable to the budget for the 2007‑2009 biennium and each subsequent biennium thereafter.
§ 143‑16.3: Repealed by Session Laws 2006‑203, s. 1, effective July 1, 2007, and applicable to the budget for the 2007‑2009 biennium and each subsequent biennium thereafter.
§ 143‑16.4: Repealed by Session Laws 2006‑203, s. 1, effective July 1, 2007, and applicable to the budget for the 2007‑2009 biennium and each subsequent biennium thereafter.
§ 143‑16.5: Repealed by Session Laws 1999‑237, s. 19a, effective June 30, 1999, and applicable to agreements entered on or after November 15, 1998.
§ 143‑16.6: Repealed by Session Laws 2006‑203, s. 1, effective July 1, 2007, and applicable to the budget for the 2007‑2009 biennium and each subsequent biennium thereafter.
§ 143‑16.7: Repealed by Session Laws 2006‑203, s. 1, effective July 1, 2007, and applicable to the budget for the 2007‑2009 biennium and each subsequent biennium thereafter.
§ 143‑17: Repealed by Session Laws 2006‑203, s. 1, effective July 1, 2007, and applicable to the budget for the 2007‑2009 biennium and each subsequent biennium thereafter.
§ 143‑18: Repealed by Session Laws 2006‑203, s. 1, effective July 1, 2007, and applicable to the budget for the 2007‑2009 biennium and each subsequent biennium thereafter.
§ 143‑18.1: Repealed by Session Laws 2006‑203, s. 1, effective July 1, 2007, and applicable to the budget for the 2007‑2009 biennium and each subsequent biennium thereafter.
§ 143‑19: Repealed by Session Laws 2006‑203, s. 1, effective July 1, 2007, and applicable to the budget for the 2007‑2009 biennium and each subsequent biennium thereafter.
§ 143‑20: Repealed by Session Laws 2006‑203, s. 1, effective July 1, 2007, and applicable to the budget for the 2007‑2009 biennium and each subsequent biennium thereafter.
§ 143‑20.1: Repealed by Session Laws 2006‑203, s. 1, effective July 1, 2007, and applicable to the budget for the 2007‑2009 biennium and each subsequent biennium thereafter.
§ 143‑21: Repealed by Session Laws 2006‑203, s. 1, effective July 1, 2007, and applicable to the budget for the 2007‑2009 biennium and each subsequent biennium thereafter.
§ 143‑22: Repealed by Session Laws 2006‑203, s. 1, effective July 1, 2007, and applicable to the budget for the 2007‑2009 biennium and each subsequent biennium thereafter.
§ 143‑23: Repealed by Session Laws 2006‑203, s. 1, effective July 1, 2007, and applicable to the budget for the 2007‑2009 biennium and each subsequent biennium thereafter.
§ 143‑23.1. Repealed by Session Laws 1985, c. 290, s. 4, effective July 1, 1985.
§ 143‑23.2: Repealed by Session Laws 2006‑203, s. 1, effective July 1, 2007, and applicable to the budget for the 2007‑2009 biennium and each subsequent biennium thereafter.
§ 143‑23.3: Repealed by Session Laws 2006‑203, s. 1, effective July 1, 2007, and applicable to the budget for the 2007‑2009 biennium and each subsequent biennium thereafter.
§ 143‑24: Repealed by Session Laws 2006‑203, s. 1, effective July 1, 2007, and applicable to the budget for the 2007‑2009 biennium and each subsequent biennium thereafter.
§ 143‑25: Repealed by Session Laws 2006‑203, s. 1, effective July 1, 2007, and applicable to the budget for the 2007‑2009 biennium and each subsequent biennium thereafter.
§ 143‑26: Repealed by Session Laws 2006‑203, s. 1, effective July 1, 2007, and applicable to the budget for the 2007‑2009 biennium and each subsequent biennium thereafter.
§ 143‑27: Repealed by Session Laws 2006‑203, s. 1, effective July 1, 2007, and applicable to the budget for the 2007‑2009 biennium and each subsequent biennium thereafter.
§ 143‑27.1. Repealed by Session Laws 1979, 2nd Session, c. 1137, s. 43.
§ 143‑27.2. (Recodified effective July 1, 2007) Discontinued service retirement allowance and severance wages for certain State employees.
(a) When the Director of the Budget determines that the closing of a State institution or a reduction in force will accomplish economies in the State Budget, he shall pay either a discontinued service retirement allowance or severance wages to any affected State employee, provided reemployment is not available. As used in this section, "economies in the State Budget" means economies resulting from elimination of a job and its responsibilities or from a lack of funds to support the job. In determining whether to pay a discontinued service retirement allowance or severance wages, the Director of the Budget shall consider the recommendation of the department head involved and any recommendation of the State Personnel Director. Severance wages shall not be paid to an employee who chooses a discontinued service retirement. Severance wages shall not be subject to employer or employee retirement contributions. Severance wages shall be paid according to the policies adopted by the State Personnel Commission.
Notwithstanding any other provisions of the State's retirement laws, any employee of the State who is a member of the Teachers' and State Employees' Retirement System or the Law‑Enforcement Officers' Retirement System and who has his job involuntarily terminated as a result of economies in the State Budget may be entitled to a discontinued service retirement allowance, subject to the approval of the employing agency and the availability of agency funds. An unreduced discontinued service retirement allowance, not otherwise allowed, may be approved for employees with 20 or more years of creditable retirement service who are at least 55 years of age; or a discontinued service retirement allowance, not otherwise allowed, may be approved for employees with 20 or more years of creditable retirement service who are at least 50 years of age, reduced by one‑fourth of one percent (1/4 of 1%) for each month that retirement precedes his fifty‑fifth birthday. In cases where a discontinued service retirement allowance is approved, the employing agency shall make a lump sum payment to the Administrator of the State Retirement Systems equal to the actuarial present value of the additional liabilities imposed upon the System, to be determined by the System's consulting actuary, as a result of the discontinued service retirement, plus an administrative fee to be determined by the Administrator.
The salary used to determine severance wages under this section is the last annual salary except that if the employee was promoted within the previous 12 months, the last annual salary is that annual salary prior to the promotion. If the annual salary prior to the promotion is used, it shall be adjusted to account for any across‑the‑board legislative salary increases. Excluded from any calculation are any benefits such as, but not limited to, overtime pay, shift pay, holiday premium, or longevity pay.
(b) Any employee separated from State government and paid severance wages under this section shall not be employed under a contractual arrangement by any State agency, other than the constituent institutions of The University of North Carolina and the constituent institutions of the North Carolina Community College System, until 12 months have elapsed since the separation. This subsection does not affect any reduction in force rights that the employee may have. (1979, c. 838, s. 22; 1983, c. 761, s. 225; c. 923, s. 217(R); 1983 (Reg. Sess., 1984), c. 1034, s. 251; 1985 (Reg. Sess., 1986), c. 981, s. 1; c. 1024, s. 20; 1987, c. 177, s. 2; 1989 (Reg. Sess., 1990), c. 1066, s. 36(a); 1998‑212, s. 28.28(a); 2006‑203, s. 6.)
§ 143‑28: Repealed by Session Laws 2006‑203, s. 1, effective July 1, 2007, and applicable to the budget for the 2007‑2009 biennium and each subsequent biennium thereafter.
§ 143‑28.1: Repealed by Session Laws 2006‑203, s. 1, effective July 1, 2007, and applicable to the budget for the 2007‑2009 biennium and each subsequent biennium thereafter.
§ 143‑29: Repealed by Session Laws 2006‑203, s. 1, effective July 1, 2007, and applicable to the budget for the 2007‑2009 biennium and each subsequent biennium thereafter.
§ 143‑30: Repealed by Session Laws 2006‑203, s. 1, effective July 1, 2007, and applicable to the budget for the 2007‑2009 biennium and each subsequent biennium thereafter.
§ 143‑31: Repealed by Session Laws 2006‑203, s. 1, effective July 1, 2007, and applicable to the budget for the 2007‑2009 biennium and each subsequent biennium thereafter.
§ 143‑31.1: Repealed by Session Laws 2006‑203, s. 1, effective July 1, 2007, and applicable to the budget for the 2007‑2009 biennium and each subsequent biennium thereafter.
§ 143‑31.2. (Recodified effective July 1, 2007) Appropriation, allotment, and expenditure of funds for historic and archeological property.
The Department of Cultural Resources may not expend any State funds for the acquisition, preservation, restoration, or operation of historic or archeological real and personal property, and the Director of the Budget may not allot any appropriations to the Department of Cultural Resources for a particular historic site until (i) the property or properties shall have been approved for such purpose by the Department of Cultural Resources according to criteria adopted by the North Carolina Historical Commission, (ii) the report and recommendation of the North Carolina Historical Commission has been received and considered by the Department of Cultural Resources, and (iii) the Department of Cultural Resources has found that there is a feasible and practical method of providing funds for the acquisition, restoration and/or operation of such property. (1963, c. 210, s. 3; 1973, c. 476, s. 48; 1985 (Reg. Sess; 1986), c. 1014, s. 171(e); 2006‑203, s.7.)
§ 143‑31.3: Repealed by Session Laws 2006‑203, s. 1, effective July 1, 2007, and applicable to the budget for the 2007‑2009 biennium and each subsequent biennium thereafter.
§ 143‑31.4: Repealed by Session Laws 2006‑203, s. 1, effective July 1, 2007, and applicable to the budget for the 2007‑2009 biennium and each subsequent biennium thereafter.
§ 143‑31.5: Repealed by Session Laws 2006‑203, s. 1, effective July 1, 2007, and applicable to the budget for the 2007‑2009 biennium and each subsequent biennium thereafter.
§ 143‑32: Repealed by Session Laws 2006‑203, s. 1, effective July 1, 2007, and applicable to the budget for the 2007‑2009 biennium and each subsequent biennium thereafter.
§ 143‑33: Repealed by Session Laws 2006‑203, s. 1, effective July 1, 2007, and applicable to the budget for the 2007‑2009 biennium and each subsequent biennium thereafter.
§ 143‑34: Repealed by Session Laws 2006‑203, s. 1, effective July 1, 2007, and applicable to the budget for the 2007‑2009 biennium and each subsequent biennium thereafter.
§ 143‑34.1: Repealed by Session Laws 2006‑203, s. 1, effective July 1, 2007, and applicable to the budget for the 2007‑2009 biennium and each subsequent biennium thereafter.
§ 143‑34.2: Repealed by Session Laws 2006‑203, s. 1, effective July 1, 2007, and applicable to the budget for the 2007‑2009 biennium and each subsequent biennium thereafter.
§ 143‑34.3. Repealed by Session Laws 1977, c. 802, s. 15.20.
§ 143‑34.4: Recodified as § 120‑36.6 by Session Laws 1983 (Regular Session 1984), c. 1034, s. 177.1.
§ 143‑34.5: Repealed by Sessions Laws 1985, c. 479, s. 160.
§ 143‑34.6: Repealed by Session Laws 2006‑203, s. 1, effective July 1, 2007, and applicable to the budget for the 2007‑2009 biennium and each subsequent biennium thereafter.
§ 143‑34.7: Repealed by Session Laws 2006‑203, s. 1, effective July 1, 2007, and applicable to the budget for the 2007‑2009 biennium and each subsequent biennium thereafter.
§ 143‑34.8. Reserved for future codification purposes.
§ 143‑34.9. Reserved for future codification purposes.
Article 1A.
Periodic Review of Certain State Agencies.
§ 143‑34.10: Repealed by Session Laws 1981, c. 932, s. 1.
§ 143‑34.11. Certain General Statutes provisions repealed effective July 1, 1979.
The following statutes are repealed effective July 1, 1979, (except for purposes of the winding‑up period, as provided by section 5 of this act):
Chapter 87, Article 3, entitled "Tile Contractors."
Chapter 87, Article 6, entitled "Water Well Contractors."
Chapter 66, Article 9A, entitled "Private Detectives."
Chapter 93C, entitled "Watchmakers."
Chapter 74, Article 6, entitled "Mining Registration." (1977, c. 712, s. 2; 1979, c. 616, s. 9; c. 629; c. 712, s. 6; c. 713, s. 9; c. 736, s. 1; c. 740, s. 1; c. 744, ss. 1‑3; c. 750, s. 1; c. 780, s. 3; c. 819, s. 7; c. 834, s. 13; c. 871, s. 2; c. 872, s. 6; c. 904, s. 15.)
§§ 143‑34.12 through 143‑34.21: Repealed by Session Laws 1981, c. 932, s. 1.
§ 143‑34.22. Reserved for future codification purposes.
§ 143‑34.23. Reserved for future codification purposes.
§ 143‑34.24. Reserved for future codification purposes.
Article 1.2.
Legislative Committee on Agency Review.
§§ 143‑34.25 through 143‑34.27: Expired.
§§ 143‑34.28 through 143‑34.39. Reserved for future codification purposes.
Article 1B.
Capital Improvement Planning Act.
§ 143‑34.40: Repealed by Session Laws 2006‑203, s. 2, effective July 1, 2007, and applicable to the budget for the 2007‑2009 biennium and each subsequent biennium thereafter.
§ 143‑34.41: Repealed by Session Laws 2006‑203, s. 2, effective July 1, 2007, and applicable to the budget for the 2007‑2009 biennium and each subsequent biennium thereafter.
§ 143‑34.42: Repealed by Session Laws 2006‑203, s. 2, effective July 1, 2007, and applicable to the budget for the 2007‑2009 biennium and each subsequent biennium thereafter.
§ 143‑34.43: Repealed by Session Laws 2006‑203, s. 2, effective July 1, 2007, and applicable to the budget for the 2007‑2009 biennium and each subsequent biennium thereafter.
§ 143‑34.44: Repealed by Session Laws 2006‑203, s. 2, effective July 1, 2007, and applicable to the budget for the 2007‑2009 biennium and each subsequent biennium thereafter.
§ 143‑34.45: Repealed by Session Laws 2006‑203, s. 2, effective July 1, 2007, and applicable to the budget for the 2007‑2009 biennium and each subsequent biennium thereafter.
Article 2.
State Personnel Department.
§§ 143‑35 through 143‑47: Repealed by Session Laws 1965, c. 640, s. 1.
Article 2A.
Incentive Award Program for State Employees.
§§ 143‑47.1 through 143‑47.5: Repealed by Session Laws 1965, c. 640, s. 1.
Article 2B.
Notice of Appointments to Public Offices.
§ 143‑47.6. Definitions.
As used in this Article, unless the context clearly requires otherwise:
(1) "Appointing authority" means the Governor, Chief Justice of the Supreme Court, Lieutenant Governor, Speaker of the House, President pro tempore of the Senate, members of the Council of State, all heads of the executive departments of State government, the Board of Governors of The University of North Carolina, and any other person or group authorized by law to appoint to a public office.
(2) "Public office" means appointive membership on any State commission, council, committee, board, including occupational licensing boards as defined in G.S. 93B‑1, board of trustees, including boards of constituent institutions of The University of North Carolina and boards of community colleges operated pursuant to Chapter 115D of the General Statutes, and any other State agency created by law, where the appointee is entitled to draw subsistence, per diem compensation, or travel allowances, in whole or in part from funds deposited with the State Treasurer or any other funds subject to being audited by the State Auditor, by reason of his service in the public office; provided that "public office" does not include an office for which a regular salary is paid to the holder as an employee of the State or of one of its departments, agencies, or institutions. (1979, c. 477, s. 1; 1987, c. 564, s. 27.)
§ 143‑47.7. Notice and record of appointment required.
(a) Within 30 days after acceptance of appointment by a person appointed to public office, the appointing authority shall file written notice of the appointment with the Governor, the Secretary of State, the Legislative Library, the State Library, and the State Controller. For the purposes of this section, a copy of the letter from the appointing authority, a copy of the properly executed notice of appointment as set forth in subsection (c) of this section, or a copy of the properly executed Commission of Appointment shall be sufficient to be filed if the copy contains the information required in subsection (b) of this section.
(b) The notice required by this Article shall contain the following information:
(1) The name and office of the appointing authority;
(2) The public office to which the appointment is made;
(3) The name and address of the appointee;
(4) The county of residence of the appointee;
(5) The citation to the law or other authority authorizing the appointment;
(6) The specific statutory qualification for the public office to which the appointment is made, if applicable;
(7) The name of the person the appointee replaces, if applicable;
(8) The date the term of the appointment begins; and
(9) The date the term of the appointment ends.
(c) The following form may be used to comply with the requirements of this section:
"NOTICE OF APPOINTMENT
Notice is given that ___________________________ is hereby appointed to the following
Name
public office:
Public Office: __________________________________________________________________
Citation to Law or Other Authority Authorizing the Appointment:
____________________________________________________________________________
Specific Statutory Qualification for the Public Office, if Applicable:
____________________________________________________________________________
Address of the Appointee: ________________________________________________________
____________________________________________________________________________
____________________________________________________________________________
County of Residence of the Appointee: ______________________________________________
Date Term of Appointment Begins: _________________________________________________
Date Term of Appointment Ends: ___________________________________________________
Name of Person the Appointee Replaces, if applicable:
____________________________________________________________________________
______________________________ __________________________________
Date of Appointment Signature
__________________________________
Office of Appointing Authority
Distribution:
Governor
Secretary of State
Legislative Library
State Library
State Controller" (1979, c. 477, s. 1; 1991, c. 542, s. 8; 2003‑374, s. 2.)
§ 143‑47.8: Repealed by Session Laws 2003‑374, s. 3, effective August 31, 2003.
§ 143‑47.9. Subsistence, per diem compensation, and travel allowances conditioned on filing of notice.
No person who has been appointed to any public office and has accepted that appointment shall be entitled to receive subsistence, per diem compensation, or travel allowances unless and until compliance is made with the provisions of G.S. 143‑47.7. (1979, c. 477, s. 1.)
§§ 143‑47.10 through 143‑47.14. Reserved for future codification purposes.
Article 2C.
Limit on Number of State Employees.
§§ 143‑47.15 through 143‑47.20: Repealed by Session Laws 1989, c. 752, s. 45.
Article 2D.
North Carolina Board for Need‑Based Student Loans.
§§ 143‑47.21 through 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 Department of Administration and all other State agencies, institutions and political subdivisions in efforts to encourage the use of small contractors, minority contractors, physically handicapped contractors, and women contractors in achieving the purpose of this Article, which is to provide for the effective and economical acquisition, management and disposition of goods and services by and through the Department of Administration.
(b) Reporting. – Every governmental entity required by statute to use the services of the Department of Administration in the purchase of goods and services, every local school administrative unit, and every private, nonprofit corporation other than an institution of higher education or a hospital that receives an appropriation of five hundred thousand dollars ($500,000) or more during a fiscal year from the General Assembly shall report to the department of Administration annually on what percentage of its contract purchases of goods and services, through term contracts and open‑market contracts, were from minority‑owned businesses, what percentage from female‑owned businesses, what percentage from disabled‑owned businesses, what percentage from disabled business enterprises and what percentage from nonprofit work centers for the blind and the severely disabled. The same governmental entities shall include in their reports what percentages of the contract bids for such purchases were from such businesses. The Department of Administration shall provide instructions to the reporting entities concerning the manner of reporting and the definitions of the businesses referred to in this act, provided that, for the purposes of this act:
(1) Except as provided in subdivision (1a) of this subsection, a business in one of the categories above means one:
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.
(1a) 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.
(1b) 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.
(d1) Repealed by Session Laws 2007‑392, s. 1, effective October 1, 2007.
(e) In seeking contracts with the State, a disabled business enterprise must provide assurances to the Secretary of Administration that the payments that would be received from the State under these contracts are directed to the training and employment of and payment of competitive wages to handicapped employees. (1931, c. 261, s. 1; c. 396; 1957, c. 269, s. 3; 1971, c. 587, s. 1; 1975, c. 879, s. 46; 1983, c. 692, s. 2; 1989 (Reg. Sess., 1990), c. 1051, s. 1; 1993, c. 252, s. 1; 1995, c. 265, s. 2; 1999‑20, s. 1; 1999‑407, s. 1; 2003‑147, s. 6; 2004‑203, s. 72(b); 2005‑270, s. 1; 2007‑392, s. 1.)
§ 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 pursuant to the Medicaid waiver provisions of 42 U.S.C. § 1396n, or to the Medicaid program authorizations under Chapter 108A of the General Statutes.
(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 of a 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. 11A.118(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:
(1) The services must not be available under a State requirements contract.
(2) The services must be of suitable price and quality, as determined by the agency.
(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. 1.)
§ 143‑48.3. Electronic procurement.
(a) The Department of Administration shall develop and maintain electronic or digital standards for procurement. The Department of Administration shall consult with the Office of the State Controller, the Office of Information Technology Services (ITS), the Department of State Auditor, the Department of State Treasurer, The University of North Carolina General Administration, the Community Colleges System Office, and the Department of Public Instruction.
(a1) The Department of Administration shall comply with the State government‑wide technical architecture for information technology, as required by the State Chief Information Officer.
(b) The Department of Administration, in conjunction with the Office of the State Controller and the Office of Information Technology Services may, upon request, provide to all State agencies, universities, and community colleges, training in the use of the electronic procurement system.
(c) The Department of Administration shall utilize the Office of Information Technology Services as an Application Service Provider for an electronic procurement system. The Office of Information Technology Services shall operate this electronic procurement system, through State ownership or commercial leasing, in accordance with the requirements and operating standards developed by the Department of Administration and the financial reporting and accounting procedures of the Office of the State Controller.
(d) This section does not otherwise modify existing law relating to procurement between The University of North Carolina, UNC Health Care, community colleges, and the Department of Administration.
(e) The Board of Governors of The University of North Carolina shall exempt North Carolina State University and The University of North Carolina at Chapel Hill from the electronic procurement system authorized by this Article until May 1, 2003. Each exemption shall be subject to the Board of Governors' annual review and reconsideration. Exempted constituent institutions shall continue working with the North Carolina E‑Procurement Service as that system evolves and shall ensure that their proposed procurement systems are compatible with the North Carolina E‑Procurement Service so that they may take advantage of this service to the greatest degree possible. Before an exempted institution expands any electronic procurement system, that institution shall consult with the Joint Legislative Commission on Governmental Operations and the Joint Legislative Oversight Committee on Information Technology. By May 1, 2003, the General Assembly shall evaluate the efficacy of the State's electronic procurement system and the inclusion and participation of entities in the system.
(f) Any State entity or community college operating a functional electronic procurement system established prior to September 1, 2001, may until May 1, 2003, continue to operate that system independently or may opt into the North Carolina E‑Procurement Service. Each entity subject to this section shall notify the Office of Information Technology Services by January 1 of each year of its intent to participate in the North Carolina E‑Procurement Service. (2000‑67, s. 7.8; 2000‑140, ss. 95(a), 95(b); 2001‑424, s. 15.6(b); 2001‑513, s. 28(a); 2002‑126, ss. 27.1(a), 27.1(b), 27.1(c); 2003‑147, s. 7; 2004‑129, ss. 40, 40A, 41; 2004‑203, s. 72(b).)
§ 143‑48.4. Statewide uniform certification of historically underutilized businesses.
(a) In addition to the powers and duties provided in G.S. 143‑49, the Secretary of Administration shall have the power, authority, and duty to:
(1) Develop and administer a statewide uniform program for: (i) the certification of a historically underutilized business, as defined in G.S. 143‑128.4, for use by State departments, agencies, and institutions, and political subdivisions of the State; and (ii) the creation and maintenance of a database of the businesses certified as historically underutilized businesses.
(2) Adopt rules and procedures for statewide uniform certification of historically underutilized businesses.
(3) Provide for the certification of all businesses designated as historically underutilized businesses to be used by State departments, agencies, and institutions, and political subdivisions of the State.
(b) The Secretary of Administration shall seek input from State departments, agencies, and institutions, political subdivisions of the State, and any other entity deemed appropriate to determine the qualifications and criteria for statewide uniform certification of historically underutilized businesses.
(c) (Effective July 1, 2009) All State departments, agencies, and institutions, and political subdivisions of the State shall only use historically underutilized businesses listed in the database created in accordance with this section for minority business purposes. (2007‑392, s. 2.)
§ 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:
(1) 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 government, 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 shall 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 office 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 capabilities wherein the service rendered does not consist primarily of acquisition by this State of equipment or materials and the rental of equipment, materials and supplies. 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 by this subdivision shall not relieve any department, institution or agency of the State government from accountability for equipment, materials, supplies and tangible personal property under its control.
(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, to private higher education institutions that are defined as "institutions" in G.S. 116‑22(1), and to counties, cities, towns, local school administrative units, governmental entities and other subdivisions of the State and public agencies thereof in the expenditure of public funds, the services of the Department of Administration in the purchase of 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 Administration, and in addition the rules and regulations shall contain a requirement that payment for all such purchases be made in accordance with the terms of the contract.
(7) To evaluate the nonprofit qualifications and capabilities of qualified work centers to manufacture commodities or perform services.
(8) To establish and maintain a procurement card program for use by State agencies, community colleges, and nonexempted constituent institutions of The University of North Carolina. The Secretary of Administration may adopt temporary rules for the implementation and operation of the program in accordance with the payment policies of the State Controller, after consultation with the Office of Information Technology Services. These rules would include the establishment of appropriate order limits that leverage the cost savings and efficiencies of the procurement card program in conjunction with the fullest possible use of the North Carolina E‑Procurement Service. Prior to implementing the program, the Secretary shall consult with the State Controller, the UNC General Administration, the Community Colleges System Office, the State Auditor, the Department of Public Instruction, a representative chosen by the local school administrative units, and the Office of Information Technology Services. The Secretary may periodically adjust the order limit authorized in this section after consulting with the State Controller, the UNC General Administration, the Community Colleges System Office, the Department of Public Instruction, and the Office of Information Technology Services. (1931, c. 261, s. 2; 1951, c. 3, s. 1; c. 1127, s. 1; 1957, c. 269, s. 3; 1961, c. 310; 1971, c. 587, s. 1; 1975, c. 580; c. 879, s. 46; 1977, c. 733; 1979, c. 759, s. 1; 1983, c. 717, ss. 60, 62; 1985 (Reg. Sess., 1986), c. 955, ss. 79‑82; 1989, c. 408; 1991, c. 358, s. 1; 1993, c. 256, s. 1; 1995, c. 265, ss. 1, 5; 1996, 2nd Ex. Sess., c. 18, s. 24.17; 1997‑443, s. 11A.118(a); 1999‑20, s. 1; 2000‑67, s. 10.9(a); 2001‑424, s. 15.6(a); 2001‑424, s. 15.6(d); 2001‑513, s. 28(b); 2003‑147, s. 8; 2004‑203, s. 72(b); 2005‑213, s. 2; 2006‑203, s. 82.)
§ 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 Administration and all said rights, powers, duty and authority are hereby imposed upon and shall hereafter be exercised by the Secretary of Administration under the provisions of this Article. (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; 1957, c. 269, s. 3; 1971, c. 587, s. 1; 1975, c. 879, s. 46; 1981, c. 602, s. 1.)
§ 143‑52. Competitive bidding procedure; consolidation of estimates by Secretary; bids; awarding of contracts.
As feasible, the Secretary of Administration will compile and 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 requirements will involve an expenditure in excess of the expenditure benchmark established under the provisions of G.S. 143‑53.1 and where the competitive bidding procedure is employed as hereinafter provided, sealed bids shall be solicited by advertisement in a newspaper widely distributed in this State or through electronic means, or both, as determined by the Secretary to be most advantageous, at least once and at least 10 days prior to the date designated for opening. Except as otherwise provided under this Article, contracts for the purchase of supplies, materials or equipment shall be based on competitive bids and acceptance made 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 matter 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 rejected. Each and every bid conforming to the terms of the invitation, together with the name of the bidder, shall be tabulated and that tabulation shall become public record in accordance with the rules adopted by the Secretary. All contract information shall be made a matter of public record after the award of contract. Provided, that trade secrets, test data and similar proprietary information may remain confidential. A bond for the faithful performance of any contract may be required of the successful bidder at bidder's expense and in the discretion of the Secretary of Administration. When the dollar value of a contract for the purchase, lease, or lease/purchase of equipment, materials, and supplies exceeds the benchmark established by G.S. 143‑53.1, the contract shall be reviewed by the Board of Awards pursuant to G.S. 143‑52.1 prior to the contract being awarded. After contracts have been awarded, the Secretary of Administration shall certify to the departments, institutions and agencies of the State government the sources of supply and the contract price of the supplies, materials and equipment so contracted for. (1931, c. 261, s. 5; 1933, c. 441, s. 1; 1957, c. 269, s. 3; 1971, c. 587, s. 1; 1975, c. 879, s. 46; 1981, c. 602, ss. 2, 3; 1983, c. 717, s. 61; 1985 (Reg. Sess., 1986), c. 955, ss. 83‑86; 1989 (Reg. Sess., 1990), c. 936, s. 3(a); 1997‑412, s. 2; 1999‑434, s. 12; 2006‑203, s. 83.)
§ 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, except 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. 147‑33.101, 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 Chief Information Officer under Article 3D of Chapter 147 of the General Statutes, prior to the awarding of the contract.
(d) The State Budget Officer shall designate a secretary for the Board. The Secretary of Administration and the State Chief Information Officer 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 Secretary of Administration or State Chief Information Officer, as applicable unless the Secretary of Administration or State Chief Information Officer, as applicable, determines a specific record of the meeting needs to be confidential due to the nature of the contract. The Secretary of Administration or State Chief Information Officer, as applicable, 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 State Chief Information Officer to the Board shall be reported monthly by the Board to the chairs of the Joint Legislative Oversight Committee on Information Technology. (1999‑434, s. 13; 2001‑487, s. 21(e); 2004‑129, s. 41A.)
§ 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 and 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) (See Editor's note) Prescribing the routine, including consistent contract language, for securing bids on items that do not exceed the bid value benchmark established under the provisions of G.S. 143‑53.1 or G.S. 116‑31.10. The purchasing delegation for securing offers (excluding the special responsibility constituent institutions of The University of North Carolina), for each State department, institution, agency, and community college 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 individual agency. The routine prescribed by the Secretary shall include contract award protest procedures and consistent requirements for advertising of solicitations for securing offers issued by State departments, institutions, universities (including the special responsibility constituent institutions of The University of North Carolina), agencies, community colleges, and the public school administrative units.
(3) Defining contractual services for the purposes of G.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, installment or lease‑purchase, rental or lease of equipment, materials, supplies or services may be entered into by means other than competitive bidding, including, but not limited to, negotiation, reverse auctions, and acceptance of electronic bids. Reverse auctions may only be utilized for the purchase or exchange of supplies, equipment, and materials as provided in G.S. 115C‑522. Notwithstanding the provisions of subsections (a) and (b) of this section, 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 of used 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, meet the probationary training periods of employment, continue to meet job requirements, or avoid residential placement in an institutional setting; and
(6) Allow consideration of the convenience of the provider's location for the individual with the disability.
In developing these purchasing provisions, the Secretary shall also consider the following criteria: (i) cost‑effectiveness, (ii) quality, (iii) the provider's general reputation and performance capabilities, (iv) substantial conformity with specifications and other conditions set forth for these purchases, (v) the suitability of the goods or services for the intended use, (vi) the personal or other related services needed, (vii) transportation charges, and (viii) any other factors the Secretary considers pertinent to the purchases in question.
(c) The purpose of rules promulgated hereunder shall be to promote sound purchasing management.
(d) Notwithstanding the provisions of this section or any rule adopted pursuant to this Article, The University of North Carolina may solicit bids for service contracts with a term of 10 years or less, including extensions and renewals, without the prior approval of the State Purchasing Officer. (1931, c. 261, s. 5; 1933, c. 441, s. 1; 1957, c. 269, s. 3; 1971, c. 587, s. 1; 1975, c. 879, s. 46; 1981, c. 602, s. 4; 1983, c. 717, ss. 63‑64.1; 1985 (Reg. Sess., 1986), c. 955, ss. 87, 88; 1987, c. 827, s. 216; 1989 (Reg. Sess., 1990), c. 936, s. 3(b); 1995, c. 256, s. 1; 1997‑412, s. 3; 1998‑217, s. 15; 1999‑400, ss. 1, 2; 2002‑107, s. 2; 2003‑147, s. 9; 2004‑203, s. 72(b); 2005‑125, s. 1; 2006‑203, s. 84.)
§ 143‑53.1. Setting of benchmarks; increase by Secretary.
On and after July 1, 1997, the procedures prescribed by G.S. 143‑52 with respect to competitive bids and the bid value benchmark authorized by G.S. 143‑53(a)(2) with respect to rule making by the Secretary of Administration for competitive bidding shall be no more than twenty‑five thousand dollars ($25,000); provided, the Secretary of Administration may, in his or her discretion, increase the benchmarks effective as of the beginning of any fiscal biennium of the State commencing after June 30, 1999, in an amount whose increase, expressed as a percentage, does not exceed the rise in the Consumer Price Index during the fiscal biennium next preceding the effective date of the benchmark increase. For a special responsibility constituent institution of The University of North Carolina, the benchmark prescribed in this section shall be as provided in G.S. 116‑31.10. (1989 (Reg. Sess., 1990), c. 936, s. 3(c); 1991, c. 689, s. 206.2(b); 1993 (Reg. Sess., 1994), c. 591, s. 10(a); c. 769, s. 17.6(b); 1997‑412, s. 4.)
§ 143‑54. Certification that bids were submitted without collusion.
The Director of Administration shall require bidders to certify that each bid is submitted competitively and without collusion. False certification is a Class I felony. (1961, c. 963; 1971, c. 587, s. 1; 1993, c. 539, s. 1310; 1994, Ex. Sess., c. 24, s. 14(c).)
§ 143‑55. Requisitioning for supplies by agencies; must purchase through sources certified.
Unless otherwise provided by law, after sources of supply have been established by contract and certified by the Secretary of Administration to the said departments, institutions and agencies as herein provided for, it shall be the duty of all departments, institutions and agencies to make requisition or issue orders on forms to be prescribed by the Secretary of Administration, for all supplies, materials and equipment required by them upon the sources of supply so certified, and, except as herein otherwise provided for, it shall be unlawful for them, or any of them, to purchase any supplies, materials or equipment from other sources than those certified by the Secretary of Administration. One copy of such requisition or order shall be furnished to and when requested by the Secretary of Administration. (1931, c. 261, s. 6; 1957, c. 269, s. 3; 1971, c. 587, s. 1; 1975, c. 879, s. 46; 2006‑264, s. 59(c).)
§ 143‑56. Certain purchases excepted from provisions of Article.
Unless as may otherwise be ordered by the Secretary of Administration, the purchase of supplies, materials and equipment through the Secretary of Administration shall be mandatory in the following cases:
(1) Published books, manuscripts, maps, pamphlets and periodicals.
(2) Perishable articles such as fresh vegetables, fresh fish, fresh meat, eggs, and others as may be classified by the Secretary of Administration.
Purchase through the Secretary of Administration shall not be mandatory for information technology purchased in accordance with Article 3D of Chapter 147 of the General Statutes, for a purchase of supplies, materials or equipment for the General Assembly if the total expenditures is less than the expenditure benchmark established under the provisions of G.S. 143‑53.1, for group purchases made by hospitals through a competitive bidding purchasing program, as defined in G.S. 143‑129, by the University of North Carolina Health Care System pursuant to G.S. 116‑37(h), by the University of North Carolina Hospitals at Chapel Hill pursuant to G.S. 116‑37(a) (4), by the University of North Carolina at Chapel Hill on behalf of the clinical patient care programs of the School of Medicine of the University of North Carolina at Chapel Hill pursuant to G.S. 116‑37(a) (4), or by East Carolina University on behalf of the Medical Faculty Practice Plan pursuant to G.S. 116‑40.6(c).
All purchases of the above articles made directly by the departments, institutions and agencies of the State government shall, whenever possible, be based on competitive bids. Whenever an order is placed or contract awarded for such articles by any of the departments, institutions and agencies of the State government, a copy of such order or contract shall be forwarded to the Secretary of Administration and a record of the competitive bids upon which it was based shall be retained for inspection and review. (1931, c. 261, s. 7; 1957, c. 269, s. 3; 1971, c. 587, s. 1; 1975, c. 879, s. 46; 1981, c. 953; 1983, c. 717, ss. 65, 66; 1985, c. 145, s. 3; 1989 (Reg. Sess., 1990), c. 936, s. 3(e); 1998‑212, s. 11.8(c); 1999‑434, s. 14; 1999‑456, s. 7; 2001‑487, s. 21(f).)
§ 143‑57. Purchases of articles in certain emergencies.
In case of any emergency or pressing need arising from unforeseen causes including but not limited to delay by contractors, delay in transportation, breakdown in machinery, or unanticipated volume of work, the Secretary of Administration shall have power to obtain or authorize obtaining in the open market any necessary supplies, materials, equipment, printing or services for immediate delivery to any department, institution or agency of the State government. A report on the circumstances of such emergency or need and the transactions thereunder shall be made a matter of record promptly thereafter. If the expenditure exceeds ten thousand dollars ($10,000), the report shall also be made promptly thereafter to the Division of Purchase and Contract. (1931, c. 261, s. 8; 1957, c. 269, s. 3; 1971, c. 587, s. 1; 1975, c. 879, s. 46; 1999‑400, s. 3.)
§ 143‑57.1. Furniture requirements contracts.
(a) To ensure agencies access to sufficient sources of furniture supply and service, to provide agencies the necessary flexibility to obtain furniture that is compatible with interior architectural design and needs, to provide small and disadvantaged businesses additional opportunities to participate on State requirements contracts, and to restore the traditional use of multiple award contracts for purchasing furniture requirements, each State furniture requirements contract shall be awarded on a multiple award basis, subject to the following conditions:
(1) Competitive, sealed bids must be solicited for the contract in accordance with Article 3 of Chapter 143 of the General Statutes unless otherwise provided for by the State Purchasing Officer pursuant to that Article. Bids shall be solicited on a historical weighted average of specific contract items and not on a single item within a class of items. Historical weighted average shall be based on information derived from the State's electronic procurement system, when available, or other available data.
(2) Subject to the provisions of this section, bids shall be evaluated and the contract awarded in accordance with Article 3 of Chapter 143 of the General Statutes.
(3) For each category of goods under each State requirements furniture contract, awards shall be made to at least three qualified vendors unless three qualified vendors are not available. Additionally, if the State Purchasing Officer determines that there are no qualified vendors within the three best qualified vendors who offer furniture manufactured or produced in North Carolina or who are incorporated in the State, the State Purchasing Officer shall expand the number of qualified vendors awarded contracts to as many qualified vendors as is necessary to include a qualified vendor who offers furniture manufactured or produced in North Carolina or who is incorporated in the State, but the State Purchasing Officer shall not be required to expand the number of qualified vendors to more than six qualified vendors. A vendor is qualified under this section if the vendor's products conform to the term contract specifications, the vendor is listed on the State's qualified products list, and the vendor submits a responsive bid.
(4) An agency may purchase from any vendor certified on the contract but shall make the most economical purchase that it determines meets its needs, based upon price, compatibility, service, delivery, freight charges, and other factors that it considers relevant.
(b) For purposes of this section, "furniture requirements contract" means State requirements contracts for casegoods, classroom furniture, bookcases, ergonomic chairs, office swivel and side chairs, computer furniture, mobile and folding furniture, upholstered seating, commercial dining tables, and related items. (1995, c. 136, ss. 1, 3; 1995 (Reg. Sess., 1996), c. 716, s. 30; 2004‑115, s. 1.)
§ 143‑58. Contracts contrary to provisions of Article made void.
If any department, institution or agency of the State government, required by this Article and the rules adopted pursuant thereto applying to the purchase or lease of supplies, materials, equipment, printing or services through the Secretary of Administration, or any nonstate institution, agency or instrumentality duly authorized or required to make purchases through the Department of Administration, shall contract for the purchase or lease of such supplies, materials, equipment, printing or services contrary to the provisions of this Article or the rules made hereunder, such contract shall be void and of no effect. If any such State or nonstate department, institution, agency or instrumentality purchases any supplies, materials, equipment, printing or services contrary to the provisions of this Article or the rules made hereunder, the executive officer of such department, institution, agency or instrumentality shall be personally liable for the costs thereof. (1931, c. 261, s. 9; 1957, c. 269, s. 3; 1971, c. 587, s. 1; 1975, c. 879, s. 46; 1977, c. 148, s. 3; 1987, c. 827, s. 217.)
§ 143‑58.1. Unauthorized use of public purchase or contract procedures for private benefit.
(a) It shall be unlawful for any person, by the use of the powers, policies or procedures described in this Article or established hereunder, to purchase, attempt to purchase, procure or attempt to procure any property or services for private use or benefit.
(b) This prohibition shall not apply if:
(1) The department, institution or agency through which the property or services are procured had theretofore established policies and procedures permitting such purchases or procurement by a class or classes of persons in order to provide for the mutual benefit of such persons and the department, institution or agency involved, or the public benefit or convenience; and
(2) Such policies and procedures, including any reimbursement policies, are complied with by the person permitted thereunder to use the purchasing or procurement procedures described in this Article or established thereunder.
(c) A violation of this section is a Class 1 misdemeanor. (1983, c. 409; 1993, c. 539, s. 1004; 1994, Ex. Sess., c. 24, s. 14(c).)
§ 143‑58.2. State policy; bid procedures and specifications; identification of products.
(a) It is the policy of this State to encourage and promote the purchase of products with recycled content. All State departments, institutions, agencies, community colleges, and local school administrative units shall, to the extent economically practicable, purchase and use, or require the purchase and use of, products with recycled content.
(b) No later than January 1, 1995, the Secretary of Administration and each State department, institution, agency, community college, and local school administrative unit authorized to purchase materials and supplies or to contract for services shall review and revise its bid procedures and specifications for the purchase or use of materials and supplies to eliminate any procedures and specifications that explicitly discriminate against materials and supplies with recycled content, except where procedures and specifications are necessary to protect the health, safety, and welfare of the citizens of this State.
(c) The Secretary of Administration and each State department, institution, agency, community college, and local school administrative unit shall review and revise its bid procedures and specifications on a continuing basis to encourage the purchase or use of materials and supplies with recycled content and to the extent economically practicable, the use of materials and supplies with recycled content.
(d) The Department of Administration, in cooperation with the Division of Pollution Prevention and Environmental Assistance of the Department of Environment and Natural Resources, shall identify materials and supplies with recycled content that meet appropriate standards for use by State departments, institutions, agencies, community colleges, and local school administrative units.
(e) A list of materials and supplies with recycled content that are identified pursuant to subsection (d) of this section and that are available for purchase under a statewide term contract shall be distributed annually to each State agency authorized to purchase materials and supplies for use by its departments, institutions, agencies, community colleges, or local school administrative units.
(f) On or before October 1 of each year, each State department, institution, agency, community college, and local school administrative unit authorized to purchase materials and supplies shall report to the Division of Pollution Prevention and Environmental Assistance of the Department of Environment and Natural Resources, the amounts and types of materials and supplies with recycled content that were purchased during the previous fiscal year and its progress toward reaching the goals under G.S. 143‑58.3. On or before December 1 of each year, the Division of Pollution Prevention and Environmental Assistance shall prepare a summary of these reports and submit the summary to the Joint Legislative Commission on Governmental Operations. The summary of these reports shall also be included in the report required by G.S. 130A‑309.06(c).
(g) The Department of Administration and the Department of Environment and Natural Resources shall develop guidelines for minimum content standards for materials and supplies with recycled content and may recommend appropriate goals in addition to those goals set forth in G.S. 143‑58.3, for types of materials and supplies with recycled content to be purchased by the State.
(h) The Secretary of Administration may adopt rules to implement the provisions of this section and G.S. 143‑58.3. (1993, c. 256, s. 2; 1995 (Reg. Sess., 1996), c. 743, ss. 10, 11; 1997‑443, s. 11A.119(a); 2001‑452, s. 3.7.)
§ 143‑58.3. Purchase of recycled paper and paper products; goals.
In furtherance of the State policy, it is the goal of the State that each department, institution, agency, community college, and local school administrative unit purchase paper and paper products with recycled content according to the following schedule:
(1) At least ten percent (10%) by June 30, 1994;
(2) At least twenty percent (20%) by June 30, 1995;
(3) At least thirty‑five percent (35%) by June 30, 1996; and
(4) At least fifty percent (50%) by June 30, 1997, and the end of each subsequent fiscal year,
of the total amount spent for the purchase of paper and paper products during that fiscal year. (1993, c. 256, s. 2.)
§ 143‑58.4. Energy credit banking and selling program.
(a) As used in this section:
(1) "AFV" means a hybrid electric vehicle that derives its transportation energy from gasoline and electricity. AFV also means an original equipment manufactured vehicle that operates on compressed natural gas, propane, or electricity.
(2) "Alternative fuel" means biodiesel, ethanol, compressed natural gas, propane, and electricity used as a transportation fuel in blends or in a manner as defined by the Energy Policy Act.
(3) "B‑20" means a blend of twenty percent (20%) by volume biodiesel fuel and eighty percent (80%) by volume petroleum‑based diesel fuel.
(4) "Department" means the Department of Administration.
(5) "Energy Policy Act" means the federal Energy Policy Act of 1992, Pub. L. No. 102‑486, 106 Stat. 2782, 42 U.S.C. § 13201, et seq.
(6) "EPAct credit" means a credit issued pursuant to the Energy Policy Act.
(7) "E‑85" means a blend of eighty‑five percent (85%) by volume ethanol and fifteen percent (15%) by volume gasoline.
(8) "Incremental fuel cost" means the difference in cost between an alternative fuel and conventional petroleum fuel at the time the fuel is purchased.
(9) "Incremental vehicle cost" means the difference in cost between an AFV and conventional vehicle of the same make and model. For vehicles with no comparable conventional model, incremental vehicle cost means the generally accepted difference in cost between an AFV and a similar conventional model.
(b) Establish Program. – The State Energy Office of the Department, in cooperation with State departments, institutions, and agencies, shall establish and administer an energy credit banking and selling program to allow State departments, institutions, and agencies to use moneys generated by the sale of EPAct credits to purchase alternative fuel, develop alternative fuel refueling infrastructure, and purchase AFVs for use by State departments, institutions, and agencies. Each State department, institution, and agency shall provide the State Energy Office with all vehicle fleet information necessary to determine the number of EPAct credits generated annually by the State. The State Energy Office may sell credits in any manner that is in accordance with the provisions of the Energy Policy Act.
(c) Adopt Rules. – The Secretary of Administration shall adopt rules as necessary to implement this section. (2005‑413, s. 1.)
§ 143‑58.5. Alternative Fuel Revolving Fund.
(a) The definitions set out in G.S. 143‑58.4 apply to this section.
(b) The Alternative Fuel Revolving Fund is created and shall be held by the State Treasurer. The Fund shall consist of moneys received from the sale of EPAct credits under G.S. 143‑58.4, any moneys appropriated to the Fund by the General Assembly, and any moneys obtained or accepted by the Department for deposit into the Fund. The Fund shall be managed to maximize benefits to the State for the purchase of alternative fuel, related refueling infrastructure, and AFV purchases. To the extent possible, benefits from the sale of EPAct credit shall be distributed to State departments, institutions, and agencies in proportion to the number of EPAct credits generated by each. No portion of the Fund shall be transferred to the General Fund, and any appropriation made to the Fund shall not revert. The State Treasurer shall invest moneys in the Fund in the same manner as other funds are invested. Interest and moneys earned on such investments shall be credited to the Fund.
(c) The Fund shall be used to offset the incremental fuel cost of biodiesel fuel with a minimum biodiesel concentration of B‑20 for use in State vehicles, for the purchase of ethanol fuel with a minimum ethanol concentration of E‑85 for use in State vehicles, the incremental vehicle cost of purchasing AFVs, for the development of related refueling infrastructure, for the costs of administering the Fund, and for projects approved by the Energy Policy Council.
(d) The Secretary of Administration shall adopt rules as necessary to implement this section.
(e) The Department shall submit to the Joint Legislative Commission on Governmental Operations and the Fiscal Research Division no later than 1 October of each year a report on the expenditures from the Fund during the preceding fiscal year. (2005‑413, s. 1.)
§ 143‑59. Preference given to North Carolina products and citizens, and articles manufactured by State agencies; reciprocal preferences.
(a) Preference. – The Secretary of Administration and any State agency authorized to purchase foodstuff or other products, shall, in the purchase of or in the contracting for foods, supplies, materials, equipment, printing or services give preference as far as may be practicable to such products or services manufactured or produced in North Carolina or furnished by or through citizens of North Carolina: Provided, however, that in giving such preference no sacrifice or loss in price or quality shall be permitted; and provided further, that preference in all cases shall be given to surplus products or articles produced and manufactured by other State departments, institutions, or agencies which are available for distribution.
(b) Reciprocal Preference. – For the purpose only of determining the low bidder on all contracts for equipment, materials, supplies, and services valued over twenty‑five thousand dollars ($25,000), a percent of increase shall be added to a bid of a nonresident bidder that is equal to the percent of increase, if any, that the state in which the bidder is a resident adds to bids from bidders who do not reside in that state. Any amount due under a contract awarded to a nonresident bidder shall not be increased by the amount of the increase added by this subsection. On or before January 1 of each year, the Secretary of Administration shall electronically publish a list of states that give preference to in‑State bidders and the amount of the percent increase added to out‑of‑state bids. All departments, institutions, and agencies of the State shall use this list when evaluating bids. If the reciprocal preference causes the nonresident bidder to no longer be the lowest bidder, the Secretary of Administration may, after consultation with the Board of Awards, waive the reciprocal preference. In determining whether to waive the reciprocal preference, the Secretary of Administration and the Board of Awards shall consider factors that include competition, price, product origination, and available resources.
(c) Definitions. – The following definitions apply in this section:
(1) Resident bidder. – A bidder that has paid unemployment taxes or income taxes in this State and whose principal place of business is located in this State.
(2) Nonresident bidder. – A bidder that is not a resident bidder as defined in subdivision (1) of this subsection.
(3) Principal place of business. – The principal place from which the trade or business of the bidder is directed or managed.
(d) Exemptions. – Subsection (b) of this section shall not apply to contracts entered into under G.S. 143‑53(a)(5) or G.S. 143‑57.
(e) When a contract is awarded by the Secretary using the provisions of subsection (b) of this section, a report of the nature of the contract, the bids received, and the award to the successful bidder shall be posted on the Internet as soon as practicable.
(f) Resident Bidder Notification. – When the Secretary puts a contract up for competitive bidding, the Secretary shall endeavor to provide notice to all resident bidders who have expressed an interest in bidding on contracts of that nature. The Secretary may opt to provide notice under this section by electronic means only. (1931, c. 261, s. 10; 1933, c. 441, s. 2; 1957, c. 269, s. 3; 1971, c. 587, s. 1; 1975, c. 879, s. 46; 2001‑240, s. 1; 2005‑213, ss. 1, 3.)
§ 143‑59.1. Contracts with certain foreign vendors.
(a) Ineligible Vendors. – The Secretary of Administration and other entities to which this Article applies shall not contract for goods or services with either of the following:
(1) A vendor if the vendor or an affiliate of the vendor meets one or more of the conditions of G.S. 105‑164.8(b) but refuses to collect the use tax levied under Article 5 of Chapter 105 of the General Statutes on its sales delivered to North Carolina. The Secretary of Revenue shall provide the Secretary of Administration periodically with a list of vendors to which this section applies.
(2) A vendor if the vendor or an affiliate of the vendor incorporates or reincorporates in a tax haven country after December 31, 2001, but the United States is the principal market for the public trading of the stock of the corporation incorporated in the tax haven country.
(b) Vendor Certification. – The Secretary of Administration shall require each vendor submitting a bid or contract to certify that the vendor is not an ineligible vendor as set forth in subsection (a) of this section. Any person who submits a certification required by this subsection known to be false shall be guilty of a Class I felony.
(c) Definitions. – The following definitions apply in this section:
(1) Affiliate. – As defined in G.S. 105‑163.010.
(2) Tax haven country. – Means each of the following: Barbados, Bermuda, British Virgin Islands, Cayman Islands, Commonwealth of the Bahamas, Gibraltar, Isle of Man, the Principality of Monaco, and the Republic of the Seychelles. (1999‑341, s. 7; 2002‑189, s. 6; 2003‑413, s. 28.)
§ 143‑59.1A. Preference given to products made in United States.
If the Secretary of Administration or a State agency cannot give preference to North Carolina products or services as provided in G.S. 143‑59, the Secretary or State agency shall give preference, as far as may be practicable and to the extent permitted by State law, federal law, and federal treaty, to products or services manufactured or produced in the United States. Provided, however, that in giving such preference no sacrifice or loss in price or quality shall be permitted; and provided further, that preference in all cases shall be given to surplus products or articles produced and manufactured by other State departments, institutions, or agencies which are available for distribution. (2004‑124, s. 6.1.)
§ 143‑59.2. Certain vendors prohibited from contracting with State.
(a) Ineligible Vendors. – A vendor is not entitled to enter into a contract for goods or services with any department, institution, or agency of the State government subject to the provisions of this Article if any officer or director of the vendor, or any owner if the vendor is an unincorporated business entity, within 10 years immediately prior to the date of the bid solicitation, has been convicted of any violation of Chapter 78A of the General Statutes or the Securities Act of 1933 or the Securities Exchange Act of 1934.
(b) Vendor Certification. – The Secretary of Administration shall require each vendor submitting a bid or contract to certify that none of its officers, directors, or owners of an unincorporated business entity has been convicted of any violation referenced in subsection (a) of this section within 10 years immediately prior to the date of the bid solicitation. Any person who submits a certification required by this subsection known to be false shall be guilty of a Class I felony.
(c) Void Contracts. – A contract entered into in violation of this section is void. A contract that is void under this section may continue in effect until an alternative can be arranged when: (i) immediate termination would result in harm to the public health or welfare, and (ii) the continuation is approved by the Secretary of Administration. Approval of continuation of contracts under this subsection shall be given for the minimum period necessary to protect the public health or welfare. (2002‑189, s. 5.)
§ 143‑59.3. Contracts for the purchase of reconstituted or recombined fluid milk products prohibited.
(a) As used in this section, "fluid milk product" has the same meaning as in 7 Code of Federal Regulations § 1000.15 (1 January 2003 Edition).
(b) No department, institution, or agency of the State shall enter into any contract for the purchase of any fluid milk product that is labeled or that is required to be labeled as "reconstituted" or "recombined".
(c) The Secretary of Administration may temporarily suspend the provisions of subsection (b) of this section in case of any emergency or pressing need as provided in G.S. 143‑57. (2003‑367, s. 1.)
§ 143‑59.4. Contracts performed outside the United States.
(a) A vendor submitting a bid shall disclose in a statement, provided contemporaneously with the bid, where services will be performed under the contract sought, including any subcontracts, and whether any services under that contract, including any subcontracts, are anticipated to be performed outside the United States. Nothing in this section is intended to contravene any existing treaty, law, agreement, or regulation of the United States.
(b) The Secretary of Administration shall retain the statements required by subsection (a) of this section regardless of the State entity that awards the contract and shall report annually to the Joint Legislative Commission on Governmental Operations on the number of contracts which are anticipated to be performed outside the United States. (2005‑169, s. 1.)
§ 143‑60. Rules covering certain purposes.
The Secretary of Administration may adopt, modify, or abrogate rules covering the following purposes, in addition to those authorized elsewhere in this Article:
(1) Requiring reports by State departments, institutions, or agencies of stocks of supplies and materials and equipment on hand and prescribing the form of such reports.
(2) Prescribing the manner in which supplies, materials and equipment shall be delivered, stored and distributed.
(3) Prescribing the manner of inspecting deliveries of supplies, materials and equipment and making chemicals and/or physical tests of samples submitted with bids and samples of deliveries to determine whether deliveries have been made in compliance with specifications.
(4) Prescribing the manner in which purchases shall be made in emergencies.
(5) Providing for such other matters as may be necessary to give effect to foregoing rules and provisions of this Article.
(6) Prescribing the manner in which passenger vehicles shall be purchased.
Further, the Secretary of Administration may prescribe appropriate procedures necessary to enable the State, its institutions and agencies, to obtain materials surplus or otherwise available from federal, State or local governments or their disposal agencies. (1931, c. 261, s. 11; 1945, c. 145; 1957, c. 269, s. 3; 1961, c. 772; 1971, c. 587, s. 1; 1975, c. 879, s. 46; 1981, c. 268, s. 2; 1983, c. 717, ss. 67, 68; 1985 (Reg. Sess., 1986), c. 955, ss. 89, 90; 1987, c. 282, s. 27; c. 827, s. 217; 2006‑203, s. 85.)
§ 143‑61. Repealed by Session Laws 1975, c. 879, s. 45.
§ 143‑62. Law applicable to printing Supreme Court Reports not affected.
Nothing in this Article shall be construed as amending or repealing G.S. 7A‑6(b), relating to the printing of the Supreme Court Reports, or in any way changing or interfering with the method of printing or contracting for the printing of the Supreme Court Reports as provided for in said section. (1931, c. 261, s. 13; 1969, c. 44, s. 75; 1971, c. 587, s. 1.)
§ 143‑63. Financial interest of officers in sources of supply; acceptance of bribes.
Neither the Secretary of Administration, nor any assistant of the Secretary's shall be financially interested, or have any personal beneficial interest, either directly or indirectly, in the purchase of, or contract for, any materials, equipment or supplies, nor in any firm, corporation, partnership or association furnishing any such supplies, materials or equipment to the State government, or any of its departments, institutions or agencies, nor shall such Secretary, assistant, or member of the Commission accept or receive, directly or indirectly, from any person, firm or corporation to whom any contract may be awarded, by rebate, gifts or otherwise, any money or anything of value whatsoever, or any promise, obligation or contract for future reward or compensation. Any violation of this section shall be deemed a Class F felony. Upon conviction thereof, any such Secretary or assistant shall be removed from office. (1931, c. 261, s. 15; 1957, c. 269, s. 3; 1971, c. 587, s. 1; 1975, c. 879, s. 46; 1983, c. 717, s. 81; 1993, c. 539, s. 1311; 1994, Ex. Sess., c. 24, s. 14(c); 2006‑203, s. 86.)
§ 143‑63.1. Sale, disposal and destruction of firearms.
(a) Except as hereinafter provided, it shall be unlawful for any employee, officer or official of the State in the exercise of his official duty to sell or otherwise dispose of any pistol, revolver, shotgun or rifle to any person, firm, corporation, county or local governmental unit, law‑enforcement agency, or other legal entity.
(b) It shall be lawful for the Department of Administration, in the exercise of its official duty, to sell any weapon described in subsection (a) hereof, to any county or local governmental unit, law‑ enforcement agency in the State; provided, however, that such law‑ enforcement agency files a written statement, duly notarized, with the seller of said weapon certifying that such weapon is needed in law enforcement by such law‑enforcement agency.
(c) All weapons described in subsection (a) hereof which are not sold as herein provided within one year of being declared surplus property shall be destroyed by the Department of Administration.
(d) Notwithstanding the provisions of this section, but subject to the provisions of G.S. 20‑187.2, the North Carolina State Highway Patrol, the North Carolina Department of Correction, and the North Carolina State Bureau of Investigation may sell, trade, or otherwise dispose of any or all surplus weapons they possess to any federally licensed firearm dealers. The sale, trade, or disposal of these weapons shall be in a manner prescribed by the Department of Administration. Any moneys or property obtained from the sale, trade, or disposal shall go to the general fund. (1973, c. 666, ss. 1‑3; 1975, c. 879, s. 46; 1981, c. 604; 1981 (Reg. Sess., 1982), c. 1282, s. 52.)
§ 143‑64. Beverages contracts.
Notwithstanding any other provision of law, local school administrative units, community colleges, and constituent institutions of The University of North Carolina shall competitively bid contracts that involve the sale of juice or bottled water. Contracts for the sale of juice and contracts for the sale of bottled water shall each be bid separately from each other and separately from any other contract, including contracts for other beverages or vending machine services. The local school administrative units, community colleges, and constituent institutions may set quality standards for these beverages, and these standards may be used to accept or reject a bid. (2003‑284, s. 6.15(a); 2004‑199, s. 38.)
Article 3A.
Surplus Property.
Part 1. State Surplus Property Agency.
§ 143‑64.01. Department of Administration designated State Surplus Property Agency.
The Department of Administration is designated as the State agency for State surplus property, and with respect to the acquisition of State surplus property the agency shall be subject to the supervision and direction of the Secretary of Administration. (1991, c. 358, s. 2.)
§ 143‑64.02. Definitions.
As used in Part 1 of this Article, except where the context clearly requires otherwise:
(1) "Agency" means an existing department, institution, commission, committee, board, division, or bureau of the State.
(2) "Nonprofit tax exempt organizations" means those nonprofit tax exempt medical institutions, hospitals, clinics, health centers, school systems, schools, colleges, universities, schools for the mentally retarded, schools for the physically handicapped, radio and television stations licensed by the Federal Communications Commission as educational radio or educational television stations, public libraries, and civil defense organizations, that have been certified by the Internal Revenue Service as tax‑exempt nonprofit organizations under section 501(c)(3) of the United States Internal Revenue Code of 1954.
(3) "Recyclable material" means a recyclable material, as defined in G.S. 130A‑290, that the Secretary of Administration determines, consistent with G.S. 130A‑309.14, to be a recyclable material. (1991, c. 358, s. 2; 1998‑223, s. 1.)
§ 143‑64.03. Powers and duties of the State agency for surplus property.
(a) The State Surplus Property Agency is authorized and directed to:
(1) Sell all supplies, materials, and equipment that are surplus, obsolete, or unused;
(2) Warehouse such property; and
(3) Distribute such property to tax‑supported or nonprofit tax‑exempt organizations.
(b) The State Surplus Property Agency is authorized and empowered to act as a clearinghouse of information for agencies and private nonprofit tax‑exempt organizations, to locate property available for acquisition from State agencies, to ascertain the terms and conditions under which the property may be obtained, to receive requests from agencies and private nonprofit tax‑exempt organizations, and transmit all available information about the property, and to aid and assist the agencies and private nonprofit tax‑exempt organizations in transactions for the acquisition of State surplus property.
(c) The State agency for surplus property, in the administration of Part 1 of this Article, shall cooperate to the fullest extent consistent with the provisions of Part 1 of this Article, with the departments or agencies of the State.
(d) The State agency for surplus property may sell or otherwise dispose of surplus property, including motor vehicles, through an electronic auction service. (1991, c. 358, s. 2; 2003‑284, s. 18.6(a).)
§ 143‑64.04. Powers of the Secretary to delegate authority.
(a) The Secretary of Administration may delegate to any employees of the State agency for surplus property such power and authority as he or they deem reasonable and proper for the effective administration of Part 1 of this Article. The Secretary of Administration may, in his discretion, bond any person in the employ of the State agency for surplus property, handling moneys, signing checks, or receiving or distributing property from the United States under authority of Part 1 of this Article.
(b) The Secretary of Administration may adopt rules necessary to carry out Part 1 of this Article. (1991, c. 358, s. 2.)
§ 143‑64.05. Service charge; receipts.
(a) The State agency for surplus property may assess and collect a service charge for the acquisition, receipt, warehousing, distribution, or transfer of any State surplus property and for the transfer or sale of recyclable material. The service charge authorized by this subsection does not apply to the transfer or sale of timber on land owned by the Wildlife Resources Commission or the Department of Agriculture and Consumer Services.
(b) All receipts from the transfer or sale of surplus, obsolete, or unused equipment of State departments, institutions, and agencies that are supported by appropriations from the General Fund, except where the receipts have been anticipated for or budgeted against the cost of replacements, shall be credited by the Secretary to the Office of State Treasurer as nontax revenue.
(c) A department, institution, or agency may retain receipts derived from the transfer or sale of recyclable material, less any charge collected pursuant to subsection (a) of this section, and may use the receipts to defray the costs of its recycling activities. A contract for the transfer or sale of recyclable material to which a department, institution, or agency is a party shall not become effective until the contract is approved by the Secretary of Administration. The Secretary of Administration shall adopt rules governing the transfer or sale of recyclable material by a department, institution, or agency and specifying the conditions and procedures under which a department, institution, or agency may retain the receipts derived from the transfer or sale, including the appropriate allocation of receipts when more than one department, institution, or agency is involved in a recycling activity. (1991, c. 358, s. 2; 1991 (Reg. Sess., 1992), c. 900, s. 24; 1998‑223, s. 2; 2006‑231, s. 3; 2007‑323, s. 11.1.)
Part 2. State Agency for Federal Surplus Property.
§ 143‑64.1. Department of Administration designated State agency for federal surplus property.
The Department of Administration is hereby designated as the State agency for federal surplus property, and with respect to the acquisition of federal surplus property said agency shall be subject to the supervision and direction of the Secretary of Administration. (1953, c. 1262, s. 1; 1957, c. 269, s. 3; 1975, c. 879, s. 46; 1991, c. 358, s. 3.)
§ 143‑64.2. Authority and duties of the State agency for federal surplus property.
(a) The State agency for federal surplus property is hereby authorized and empowered
(1) To acquire from the United States of America such property, including equipment, materials, books, or other supplies under the control of any department or agency of the United States of America as may be usable and necessary for educational purposes, public health purposes, or civil defense purposes, including research;
(2) To warehouse such property; and
(3) To distribute such property to tax‑supported or nonprofit and tax‑exempt (under section 501(c)(3) of the United States Internal Revenue Code of 1954) medical institutions, hospitals, clinics, health centers, school systems, schools, colleges, universities, schools for the mentally retarded, schools for the physically handicapped, radio and television stations licensed by the Federal Communications Commission as educational radio or educational television stations, public libraries, civil defense organizations, and such other eligible donees within the State as are permitted to receive surplus property of the United States of America under the Federal Property and Administrative Services Act of 1949, as amended.
(b) The State agency for federal surplus property may adopt rules necessary to carry out Part 2 of this Article.
(c) The State agency for federal surplus property may appoint advisory boards or committees as needed to ensure that Part 2 of this Article and the rules adopted under Part 2 of this Article are consistent with federal law concerning surplus property.
(d) The State agency for surplus property is authorized and empowered to take such action, make such expenditures and enter into such contracts, agreements and undertakings for and in the name of the State, require such reports and make such investigations as may be required by law or regulation of the United States of America in connection with the receipt, warehousing, and distribution of property received by the State agency for federal surplus property from the United States of America.
(e) The State agency for federal surplus property is authorized and empowered to act as clearinghouse of information for the public and private nonprofit institutions and agencies referred to in subsection (a) of this section, to locate property available for acquisition from the United States of America, to ascertain the terms and conditions under which such property may be obtained, to receive requests from the above‑mentioned institutions and agencies and to transmit to them all available information in reference to such property, and to aid and assist such institutions and agencies in every way possible in the consummation or acquisition or transactions hereunder.
(f) The State agency for federal surplus property, in the administration of Part 2 of this Article, shall cooperate to the fullest extent consistent with the provisions of Part 2 of this Article, with the departments or agencies of the United States of America and shall make such reports in such form and containing such information as the United States of America or any of its departments or agencies may from time to time require, and it shall comply with the laws of the United States of America and the rules and regulations of any of the departments or agencies of the United States of America governing the allocation, transfer, use, or accounting for, property donable or donated to the State. (1953, c. 1262, s. 2; 1965, c. 1105, ss. 1, 2; 1987, c. 827, s. 218; 1991, c. 358, s. 3.)
§ 143‑64.3. Power of Department of Administration and Secretary to delegate authority.
The Department of Administration and/or the Secretary of Administration may delegate to any employees of the State agency for federal surplus property such power and authority as he or they deem reasonable and proper for the effective administration of Part 2 of this Article. The Department of Administration and/or the Secretary of Administration may, in his or their discretion, bond any person in the employ of the State agency for surplus property, handling moneys, signing checks, or receiving or distributing property from the United States under authority of Part 2 of this Article. (1953, c. 1262, s. 3; 1957, c. 269, s. 3; 1975, c. 879, s. 46; 1991, c. 358, s. 3.)
§ 143‑64.4. Warehousing, transfer, etc., charges.
The State agency for federal surplus property is hereby authorized and empowered to assess and collect service charges or fees for the acquisition, receipts, warehousing, distribution or transfer of any property acquired by donation from the United States of America for educational purposes, public health purposes, public libraries or civil defense purposes, including research, and any such charges made or fees assessed shall be limited to those reasonably related to the costs of care and handling in respect to the acquisition, receipts, warehousing, distribution or transfer of the property by the State agency for surplus property. (1953, c. 1262, s. 4; 1965, c. 1105, s. 3; 1991, c. 358, s. 3.)
§ 143‑64.5. Department of Agriculture and Consumer Services exempted from application of Article.
Notwithstanding any provisions or limitations of Part 2 of this Article, the North Carolina Department of Agriculture and Consumer Services is authorized and empowered to distribute food, surplus commodities and agricultural products under contracts and agreements with the federal government or any of its departments or agencies, and is authorized and empowered to adopt rules in order to conform with federal requirements and standards for such distribution and also for the proper distribution of such food, commodities and agricultural products. To the extent set forth above and in this section, the provisions of Part 2 of this Article shall not apply to the North Carolina Department of Agriculture and Consumer Services. (1953, c. 1262, s. 5; 1987, c. 827, s. 217; 1997‑261, s. 89.)
Part 3. Public Agencies.
§ 143‑64.6: Repealed by Session Laws 2004‑199, s. 36(a), effective August 17, 2004.
§§ 143‑64.7 through 143‑64.9. Reserved for future codification purposes.
Article 3B.
Conservation of Energy, Water, and Other Utilities in Government Facilities.
Part 1. Energy Policy and Life‑Cycle Cost Analysis.
§ 143‑64.10. Findings; policy.
(a) The General Assembly finds all of the following:
(1) That the State shall take a leadership role in aggressively undertaking the conservation of energy, water, and other utilities in North Carolina.
(2) That State facilities and facilities of State institutions of higher learning have a significant impact on the State's consumption of energy, water, and other utilities.
(3) That practices to conserve energy, water, and other utilities that are adopted for the design, construction, operation, maintenance, and renovation of these facilities and for the purchase, operation, and maintenance of equipment for these facilities will have a beneficial effect on the State's overall supply of energy, water, and other utilities.
(4) That the cost of the energy, water, and other utilities consumed by these facilities and the equipment for these facilities over the life of the facilities shall be considered, in addition to the initial cost.
(5) That the cost of energy, water, and other utilities is significant and facility designs shall take into consideration the total life‑cycle cost, including the initial construction cost, and the cost, over the economic life of the facility, of the energy, water, and other utilities consumed, and of operation and maintenance of the facility as it affects the consumption of energy, water, or other utilities.
(6) That State government shall undertake a program to reduce the use of energy, water, and other utilities in State facilities and facilities of the State institutions of higher learning and equipment in those facilities in order to provide its citizens with an example of energy‑use, water‑use, and utility‑use efficiency.
(b) It is the policy of the State of North Carolina to ensure that practices to conserve energy, water, and other utilities are employed in the design, construction, operation, maintenance, and renovation of State facilities and facilities of the State institutions of higher learning and in the purchase, operation, and maintenance of equipment for these facilities. (1975, c. 434, s. 1; 1993, c. 334, s. 2; 2001‑415, s. 1; 2006‑190, s. 8; 2007‑546, s. 3.1(b).)
§ 143‑64.11. Definitions.
For purposes of this Article:
(1) "Economic life" means the projected or anticipated useful life of a facility.
(2) "Energy‑consumption analysis" means the evaluation of all energy‑ consuming systems, including systems that consume water or other utilities, and components of these systems by demand and type of energy or other utility use, including the internal energy load imposed on a facility by its occupants, equipment and components, and the external energy load imposed on the facility by climatic conditions.
(2a) "Energy Office" means the State Energy Office of the Department of Administration.
(2b) "Energy‑consuming system" includes but is not limited to any of the following equipment or measures:
a. Equipment used to heat, cool, or ventilate the facility;
b. Equipment used to heat water in the facility;
c. Lighting systems;
d. On‑site equipment used to generate electricity for the facility;
e. On‑site equipment that uses the sun, wind, oil, natural gas, liquid propane gas, coal, or electricity as a power source; and
f. Energy conservation measures, as defined in G.S. 143‑64.17, in the facility design and construction that decrease the energy, water, or other utility requirements of the facility.
(3) "Facility" means a building or a group of buildings served by a central distribution system for energy, water, or other utility or components of a central distribution system.
(4) "Initial cost" means the required cost necessary to construct or renovate a facility.
(5) "Life‑cycle cost analysis" means an analytical technique that considers certain costs of owning, using, and operating a facility over its economic life, including but not limited to:
a. Initial costs;
b. System repair and replacement costs;
c. Maintenance costs;
d. Operating costs, including energy costs; and
e. Salvage value.
(6) Repealed by Session Laws 1993, c. 334, s. 3, effective July 13, 1993.
(7) "State agency" means the State of North Carolina or any board, bureau, commission, department, institution, or agency of the State.
(8) "State‑assisted facility" means a facility constructed or renovated in whole or in part with State funds or with funds guaranteed or insured by a State agency.
(9) "State facility" means a facility constructed or renovated, by a State agency.
(10) "State institution of higher learning" means any constituent institution of The University of North Carolina. (1975, c. 434, s. 2; 1989, c. 23, s. 1; 1993, c. 334, s. 3; 2001‑415, s. 2; 2006‑190, ss. 9, 10, 11; 2007‑546, s. 3.1(c).)
§ 143‑64.12. Authority and duties of the Department; State agencies and State institutions of higher learning.
(a) The Department of Administration through the State Energy Office shall develop a comprehensive program to manage energy, water, and other utility use for State agencies and State institutions of higher learning and shall update this program annually. Each State agency and State institution of higher learning shall develop and implement a management plan that is consistent with the State's comprehensive program under this subsection to manage energy, water, and other utility use. The energy consumption per gross square foot for all State buildings in total shall be reduced by twenty percent (20%) by 2010 and thirty percent (30%) by 2015 based on energy consumption for the 2002‑2003 fiscal year. Each State agency and State institution of higher learning shall update its management plan annually and include strategies for supporting the energy consumption reduction requirements under this subsection. Each community college shall submit to the State Energy Office an annual written report of utility consumption and costs.
(a1) State agencies and State institutions of higher learning shall carry out the construction and renovation of facilities in such a manner as to further the policy set forth under this section and to ensure the use of life‑cycle cost analyses and practices to conserve energy, water, and other utilities.
(b) The Department of Administration shall develop and implement policies, procedures, and standards to ensure that State purchasing practices improve efficiency regarding energy, water, and other utility use and take the cost of the product over the economic life of the product into consideration. The Department of Administration shall adopt and implement Building Energy Design Guidelines. These guidelines shall include energy‑use goals and standards, economic assumptions for life‑cycle cost analysis, and other criteria on building systems and technologies. The Department of Administration shall modify the design criteria for construction and renovation of facilities of State buildings and State institutions of higher learning buildings to require that a life‑cycle cost analysis be conducted pursuant to G.S. 143‑64.15.
(b1) The Department of Administration, as part of the Facilities Condition and Assessment Program, shall identify and recommend energy conservation maintenance and operating procedures that are designed to reduce energy consumption within the facility of a State agency or a State institution of higher learning and that require no significant expenditure of funds. Every State agency or State institution of higher learning shall implement these recommendations. Where energy management equipment is proposed for any facility of a State agency or of a State institution of higher learning, the maximum interchangeability and compatibility of equipment components shall be required. As part of the Facilities Condition and Assessment Program under this section, the Department of Administration shall develop an energy audit and a procedure for conducting energy audits. Every five years the Department shall conduct an energy audit for each State agency or State institution of higher learning.
(c) through (g) Repealed by Session Laws 1993, c. 334, s. 4.
(h) When conducting an energy audit under this section, the Department of Administration shall identify and recommend any facility of a State agency or State institution of higher learning as suitable for building commissioning to reduce energy consumption within the facility or as suitable for installing an energy savings measure pursuant to a guaranteed energy savings contract under Part 2 of this Article.
(i) Consistent with G.S. 150B‑2(8a)h., the Department of Administration may adopt architectural and engineering standards to implement this section. (1975, c. 434, s. 3; 1993, c. 334, s. 4; 2000‑140, s. 76(f); 2001‑415, s. 3; 2006‑190, s. 12; 2007‑546, s. 3.1(a); 2008‑198, s. 11.1.)
§ 143‑64.13: Repealed by Session Laws 1993, c. 334, s. 5.
§ 143‑64.14: Recodified as § 143‑64.16 by Session Laws 1993, c. 334, s. 7.
§ 143‑64.15. Life‑cycle cost analysis.
(a) A life‑cycle cost analysis shall be commenced at the schematic design phase of the construction or renovation project, shall be updated or amended as needed at the design development phase, and shall be updated or amended again as needed at the construction document phase. A life‑cycle cost analysis shall include, but not be limited to, all of the following elements:
(1) The coordination, orientation, and positioning of the facility on its physical site.
(2) The amount and type of fenestration and the potential for daylighting employed in the facility.
(3) Thermal characteristics of materials and the amount of insulation incorporated into the facility design.
(4) The variable occupancy and operating conditions of the facility, including illumination levels.
(5) Architectural features that affect the consumption of energy, water, and other utilities.
(b) The life‑cycle cost analysis performed for any State facility shall, in addition to the requirements set forth in subsection (a) of this section, include, but not be limited to, all of the following:
(1) An energy‑consumption analysis of the facility's energy‑consuming systems in accordance with the provisions of subsection (g) of this section.
(2) The initial estimated cost of each energy‑consuming system being compared and evaluated.
(3) The estimated annual operating cost of all utility requirements.
(4) The estimated annual cost of maintaining each energy‑consuming system.
(5) The average estimated replacement cost for each system expressed in annual terms for the economic life of the facility.
(c) Each entity shall conduct a life‑cycle cost analysis pursuant to this section for the construction or the renovation of any State facility or State‑assisted facility of 20,000 or more gross square feet. For the replacement of heating, ventilation, and air‑conditioning equipment in any State facility or State‑assisted facility of 20,000 or more gross square feet, the entity shall conduct a life‑cycle cost analysis of the replacement equipment pursuant to this section when the replacement is financed under a guaranteed energy savings contract or financed using repair and renovation funds.
(d) The life‑cycle cost analysis shall be certified by a registered professional engineer or bear the seal of a North Carolina registered architect, or both. The engineer or architect shall be particularly qualified by training and experience for the type of work involved, but shall not be employed directly or indirectly by a fuel provider, utility company, or group supported by fuel providers or utility funds. Plans and specifications for facilities involving public funds shall be designed in conformance with the provisions of G.S. 133‑1.1.
(e) In order to protect the integrity of historic buildings, no provision of this Article shall be interpreted to require the implementation of measures to conserve energy, water, or other utility use that conflict with respect to any property eligible for, nominated to, or entered on the National Register of Historic Places, pursuant to the National Historic Preservation Act of 1966, P.L. 89‑665; any historic building located within an historic district as provided in Chapters 160A or 153A of the General Statutes; any historic building listed, owned, or under the jurisdiction of an historic properties commission as provided in Chapter 160A or 153A; nor any historic property owned by the State or assisted by the State.
(f) Each State agency shall use the life‑cycle cost analysis over the economic life of the facility in selecting the optimum system or combination of systems to be incorporated into the design of the facility.
(g) The energy‑consumption analysis of the operation of energy‑consuming systems utilities in a facility shall include, but not be limited to, all of the following:
(1) The comparison of two or more system alternatives.
(2) The simulation or engineering evaluation of each system over the entire range of operation of the facility for a year's operating period.
(3) The engineering evaluation of the consumption of energy, water, and other utilities of component equipment in each system considering the operation of such components at other than full or rated outputs. (1993, c. 334, s. 6; 2001‑415, ss. 4, 5; 2006‑190, s. 13; 2007‑546, s. 4.1.)
§ 143‑64.15A. Certification of life‑cycle cost analysis.
Each State agency and each State institution of higher learning performing a life‑cycle cost analysis for the purpose of constructing or renovating any facility shall, prior to selecting a design option or advertising for bids for construction, submit the life‑cycle cost analysis to the Department for certification at the schematic design phase and again when it is updated or amended as needed in accordance with G.S. 143‑64.15. The Department shall review the material submitted by the State agency or State institution of higher learning, reserve the right to require an agency or institution to complete additional analysis to comply with certification, perform any additional analysis, as necessary, to comply with G.S. 143‑341(11), and require that all construction or renovation conducted by the State agency or State institution of higher learning comply with the certification issued by the Department. (2001‑415, s. 6; 2007‑546, s. 4.2.)
§ 143‑64.16. Application of Part.
The provisions of this Part shall not apply to municipalities or counties, nor to any agency or department of any municipality or county; provided, however, this Part shall apply to any board of a community college. Community college is defined in G.S. 115D‑2(2). (1975, c. 434, s. 5; 1989, c. 23, s. 2; 1993, c. 334, s. 7; 1993 (Reg. Sess., 1994), c. 775, s. 2.)
Part 2. Guaranteed Energy Savings Contracts for Governmental Units.
§ 143‑64.17. Definitions.
As used in this Part:
(1) "Energy conservation measure" means a facility or meter alteration, training, or services related to the operation of the facility or meter, when the alteration, training, or services provide anticipated energy savings or capture lost revenue. Energy conservation measure includes any of the following:
a. Insulation of the building structure and systems within the building.
b. Storm windows or doors, caulking, weatherstripping, multiglazed windows or doors, heat‑absorbing or heat‑reflective glazed or coated window or door systems, additional glazing, reductions in glass area, or other window or door system modifications that reduce energy consumption.
c. Automatic energy control systems.
d. Heating, ventilating, or air‑conditioning system modifications or replacements.
e. Replacement or modification of lighting fixtures to increase the energy efficiency of a lighting system without increasing the overall illumination of a facility, unless an increase in illumination is necessary to conform to the applicable State or local building code or is required by the light system after the proposed modifications are made.
f. Energy recovery systems.
g. Cogeneration systems that produce steam or forms of energy such as heat, as well as electricity, for use primarily within a building or complex of buildings.
h. Repealed by Session Laws 2006‑190, s. 2, effective August 3, 2006, and applicable to contracts entered into or renewed on or after that date.
i. Faucets with automatic or metered shut‑off valves, leak detection equipment, water meters, water recycling equipment, and wastewater recovery systems.
j. Other energy conservation measures that conserve energy, water, or other utilities.
(2) "Energy savings" means a measured reduction in fuel costs, energy costs, water costs, stormwater fees, other utility costs, or operating costs, including environmental discharge fees, water and sewer maintenance fees, and increased meter accuracy, created from the implementation of one or more energy conservation measures when compared with an established baseline of previous costs, including captured lost revenues, developed by the governmental unit.
(2a) "Governmental unit" means either a local governmental unit or a State governmental unit.
(3) "Guaranteed energy savings contract" means a contract for the evaluation, recommendation, or implementation of energy conservation measures, including the design and installation of equipment or the repair or replacement of existing equipment or meters, in which all payments, except obligations on termination of the contract before its expiration, are to be made over time, and in which energy savings are guaranteed to exceed costs.
(4) "Local governmental unit" means any board or governing body of a political subdivision of the State, including any board of a community college, any school board, or an agency, commission, or authority of a political subdivision of the State.
(5) "Qualified provider" means a person or business experienced in the design, implementation, and installation of energy conservation measures.
(6) "Request for proposals" means a negotiated procurement initiated by a governmental unit by way of a published notice that includes the following:
a. The name and address of the governmental unit.
b. The name, address, title, and telephone number of a contact person in the governmental unit.
c. Notice indicating that the governmental unit is requesting qualified providers to propose energy conservation measures through a guaranteed energy savings contract.
d. The date, time, and place where proposals must be received.
e. The evaluation criteria for assessing the proposals.
f. A statement reserving the right of the governmental unit to reject any or all the proposals.
g. Any other stipulations and clarifications the governmental unit may require.
(7) "State governmental unit" means the State or a department, an agency, a board, or a commission of the State, including the Board of Governors of The University of North Carolina and its constituent institutions. (1993 (Reg. Sess., 1994), c. 775, s. 3; 1995, c. 295, s. 1; 1999‑235, ss. 1, 2; 2002‑161, s. 2; 2006‑190, s. 2.)
§ 143‑64.17A. Solicitation of guaranteed energy savings contracts.
(a) Before entering into a guaranteed energy savings contract, a governmental unit shall issue a request for proposals. Notice of the request shall be published at least 15 days in advance of the time specified for opening of the proposals in at least one newspaper of general circulation in the geographic area for which the local governmental unit is responsible or, in the case of a State governmental unit, in which the facility or facilities are located. No guaranteed energy savings contract shall be awarded by any governmental unit unless at least two proposals have been received from qualified providers. Provided that if after the publication of the notice of the request for proposals, fewer than two proposals have been received from qualified providers, the governmental unit shall again publish notice of the request and if as a result of the second notice, one or more proposals by qualified providers are received, the governmental unit may then open the proposals and select a qualified provider even if only one proposal is received.
(b) The governmental unit shall evaluate a sealed proposal from any qualified provider. Proposals shall contain estimates of all costs of installation, modification, or remodeling, including costs of design, engineering, installation, maintenance, repairs, debt service, and estimates of energy savings.
(c) In the case of a local governmental unit, proposals received pursuant to this section shall be opened by a member or an employee of the governing body of the local governmental unit at a public opening at which the contents of the proposals shall be announced and recorded in the minutes of the governing body. Proposals shall be evaluated for the local governmental unit by a licensed architect or engineer on the basis of:
(1) The information required in subsection (b) of this section; and
(2) The criteria stated in the request for proposals.
The local governmental unit may require a qualified provider to include in calculating the cost of a proposal for a guaranteed energy savings contract any reasonable fee payable by the local governmental unit for evaluation of the proposal by a licensed architect or professional engineer not employed as a member of the staff of the local governmental unit or the qualified provider.
(c1) In the case of a State governmental unit, proposals received pursuant to this section shall be opened by a member or an employee of the State governmental unit at a public opening and the contents of the proposals shall be announced at this opening. Proposals shall be evaluated for the State governmental unit by a licensed architect or engineer who is either privately retained, employed with the Department of Administration, or employed as a member of the staff of the State governmental unit. The proposal shall be evaluated on the basis of the information required in subsection (b) of this section and the criteria stated in the request for proposals.
The State governmental unit shall require a qualified provider to include in calculating the cost of a proposal for a guaranteed energy savings contract any reasonable fee payable by the State governmental unit for evaluation of the proposal by a licensed architect or professional engineer not employed as a member of the staff of the State governmental unit or the qualified provider. The Department of Administration may charge the State governmental unit a reasonable fee for the evaluation of the proposal if the Department's services are used for the evaluation and the cost paid by the State governmental unit to the Department of Administration shall be calculated in the cost of the proposal under this subsection.
(d) The governmental unit shall select the qualified provider that it determines to best meet the needs of the governmental unit by evaluating all of the following:
(1) Prices offered.
(2) Proposed costs of construction, financing, maintenance, and training.
(3) Quality of the products proposed.
(4) Amount of energy savings.
(5) General reputation and performance capabilities of the qualified providers.
(6) Substantial conformity with the specifications and other conditions set forth in the request for proposals.
(7) Time specified in the proposals for the performance of the contract.
(8) Any other factors the governmental unit deems necessary, which factors shall be made a matter of record.
(e) Nothing in this section shall limit the authority of governmental units as set forth in Article 3D of this Chapter. (1993 (Reg. Sess., 1994), c. 775, s. 3; 2002‑161, s. 3.)
§ 143‑64.17B. Guaranteed energy savings contracts.
(a) A governmental unit may enter into a guaranteed energy savings contract with a qualified provider if all of the following apply:
(1) The term of the contract does not exceed 20 years from the date of the installation and acceptance by the governmental unit of the energy conservation measures provided for under the contract.
(2) The governmental unit finds that the energy savings resulting from the performance of the contract will equal or exceed the total cost of the contract.
(3) The energy conservation measures to be installed under the contract are for an existing building or utility system.
(b) Before entering into a guaranteed energy savings contract, the governmental unit shall provide published notice of the time and place or of the meeting at which it proposes to award the contract, the names of the parties to the proposed contract, and the contract's purpose. The notice must be published at least 15 days before the date of the proposed award or meeting.
(c) A qualified provider entering into a guaranteed energy savings contract under this Part shall provide security to the governmental unit in the form acceptable to the Office of the State Treasurer and in an amount equal to one hundred percent (100%) of the total cost of the guaranteed energy savings contract to assure the provider's faithful performance. Any bonds required by this subsection shall be subject to the provisions of Article 3 of Chapter 44A of the General Statutes. If the savings resulting from a guaranteed energy savings contract are not as great as projected under the contract and all required shortfall payments to the governmental unit have not been made, the governmental unit may terminate the contract without incurring any additional obligation to the qualified provider.
(d) As used in this section, "total cost" shall include, but not be limited to, costs of construction, costs of financing, and costs of maintenance and training during the term of the contract. "Total cost" does not include any obligations on termination of the contract before its expiration, provided that those obligations are disclosed when the contract is executed.
(e) A guaranteed energy savings contract may not require the governmental unit to purchase a maintenance contract or other maintenance agreement from the qualified provider who installs energy conservation measures under the contract if the unit of government takes appropriate action to budget for its own forces or another provider to maintain new systems installed and existing systems affected by the guaranteed energy savings contract.
(f) In the case of a State governmental unit, a qualified provider shall, when feasible, after the acceptance of the proposal of the qualified provider by the State governmental unit, conduct an investment grade audit. If the results of the audit are not within ten percent (10%) of both the guaranteed savings contained in the proposal and the total proposal amount, either the State governmental unit or the qualified provider may terminate the project without incurring any additional obligation to the other party. However, if the State governmental unit terminates the project after the audit is conducted and the results of the audit are within ten percent (10%) of both the guaranteed savings contained in the proposal and the total proposal amount, the State governmental unit shall reimburse the qualified provider the reasonable cost incurred in conducting the audit, and the results of the audit shall become the property of the State governmental unit.
(g) In the case of a State governmental unit, a qualified provider shall provide an annual reconciliation statement based upon the results of the measurement and verification review. The statement shall disclose any shortfalls or surplus between guaranteed energy and operational savings specified in the guaranteed energy savings contract and actual, not stipulated, energy and operational savings incurred during a given guarantee year. The guarantee year shall consist of a 12‑month term commencing from the time that the energy conservation measures become fully operational. A qualified provider shall pay the State governmental unit any shortfall in the guaranteed energy and operational savings after the total year savings have been determined. A surplus in any one year shall not be carried forward or applied to a shortfall in any other year. (1993 (Reg. Sess., 1994), c. 775, s. 3; 1995, c. 295, s. 2; 1999‑235, s. 3; 2002‑161, s. 4; 2003‑138, s. 1; 2006‑190, s. 3.)
§ 143‑64.17C: Repealed by Session Laws 2002, ch. 161, s. 5, effective January 1, 2003, and applicable to contracts entered into on or after that date.
§ 143‑64.17D. Contract continuance.
A guaranteed energy savings contract may extend beyond the fiscal year in which it becomes effective. Such a contract shall stipulate that it does not constitute a direct or indirect pledge of the taxing power or full faith and credit of any governmental unit. (1993 (Reg. Sess., 1994), c. 775, s. 3; 2002‑161, s. 6.)
§ 143‑64.17E. Payments under contract.
A local governmental unit may use any funds, whether operating or capital, that are not otherwise restricted by law for the payment of a guaranteed energy savings contract. State appropriations to any local governmental unit shall not be reduced as a result of energy savings occurring as a result of a guaranteed energy savings contract. (1993 (Reg. Sess., 1994), c. 775, s. 3.)
§ 143‑64.17F. State agencies to use contracts when feasible; rules; recommendations.
(a) State governmental units shall evaluate the use of guaranteed energy savings contracts in reducing energy costs and may use those contracts when feasible and practical.
(b) The Department of Administration, through the State Energy Office, shall adopt rules for: (i) agency evaluation of guaranteed energy savings contracts; (ii) establishing time periods for consideration of guaranteed energy savings contracts by the Office of State Budget and Management, the Office of the State Treasurer, and the Council of State, and (iii) setting measurements and verification criteria, including review, audit, and precertification. Prior to adopting any rules pursuant to this section, the Department shall consult with and obtain approval of those rules from the State Treasurer.
(c) The Department of Administration, through the State Energy Office, may provide to the Council of State its recommendations concerning any energy savings contracts being considered. (2002‑161, s. 7; 2003‑138, s. 2.)
§ 143‑64.17G. Report on guaranteed energy savings contracts entered into by local governmental units.
A local governmental unit that enters into a guaranteed energy savings contract must report the contract and the terms of the contract to the Local Government Commission. The Commission shall compile the information and report it biennially to the Joint Commission on Governmental Operations. In compiling the information, the Local Government Commission shall include information on the energy savings expected to be realized from a contract and, with the assistance of the Office of State Construction, shall evaluate whether expected savings have in fact been realized. (1993 (Reg. Sess., 1994), c. 775, s. 9; 2006‑190, s. 4.)
§ 143‑64.17H. Report on guaranteed energy savings contracts entered into by State governmental units.
A State governmental unit that enters into a guaranteed energy savings contract must report the contract and the terms of the contract to the State Energy Office of the Department of Administration within 30 days of the date the contract is entered into. In addition, within 60 days after each annual anniversary date of a guaranteed energy savings contract, the State governmental unit must report the status of the contract to the State Energy Office, including any details required by the State Energy Office. The State Energy Office shall compile the information for each fiscal year and report it to the Joint Legislative Commission on Governmental Operations and to the Local Government Commission annually by December 1. In compiling the information, the State Energy Office shall include information on the energy savings expected to be realized from a contract and shall evaluate whether expected savings have in fact been realized. (2002‑161, s. 8; 2006‑190, s. 5.)
§ 143‑64.17I. Installment and lease purchase contracts.
A local governmental unit may provide for the acquisition, installation, or maintenance of energy conservation measures acquired pursuant to this Part by installment or lease purchase contracts in accordance with and subject to the provisions of G.S. 160A‑20 and G.S. 160A‑19, as applicable. (2002‑161, s. 8.)
§ 143‑64.17J. Financing by State governmental units.
State governmental units may finance the acquisition, installation, or maintenance of energy conservation measures acquired pursuant to this Part in the manner and to the extent set forth in Article 8 of Chapter 142 of the General Statutes or as otherwise authorized by law. (2002‑161, s. 8.)
§ 143‑64.17K. Inspection and compliance certification for State governmental units.
The provisions of G.S. 143‑341(3) shall not apply to any energy conservation measure for State governmental units provided pursuant to this Part, except as specifically set forth in this section. Except as otherwise exempt under G.S. 116‑31.11, the following shall apply to all energy conservation measures provided to State governmental units pursuant to this Part:
(1) The provisions of G.S. 133‑1.1.
(2) Inspection and certification by:
a. The applicable local building inspector under Part 4 of Article 18 of Chapter 153A of the General Statutes or Part 5 of Article 19 of Chapter 160A of the General Statutes; or
b. At the election of the State governmental unit, the Department of Administration under G.S. 143‑341(3)d.
The cost of compliance with this section may be included in the cost of the project in accordance with G.S. 143‑64.17A(c1) and may be included in the cost financed under Article 8 of Chapter 142 of the General Statutes. (2002‑161, s. 8.)
§§ 143‑64.17L through 143‑64.19. Reserved for future codification purposes.
Article 3C.
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 Governor.
The Governor, before granting written approval of any such contract, must find:
(1) That the contract is reasonably necessary to the proper function of such State agency; and
(2) That such services or advice cannot be performed within the resources of such State agency;
(3) That the estimated cost is reasonable as compared with the likely benefits or results; and
(4) That the General Assembly has appropriated funds for such contract or that such funds are otherwise available; and
(5) That all rules and regulations of the Department of Administration have been or will be complied with. (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 of G.S. 143‑64.21 and 143‑64.22 have been complied with. Any employee or official of the State of North Carolina who violates this Article shall be liable to repay any amount expended in violation of this Article, plus court costs. (1975, c. 887, s. 4.)
§ 143‑64.24. Applicability of Article.
This Article shall not apply to the following agencies:
(1) The General Assembly.
(2) Special study commissions.
(3) The Research Triangle Institute.
(4) The School of Government at the University of North Carolina at Chapel Hill.
(5) Attorneys employed by the North Carolina Department of Justice.
(6) Physicians or doctors performing contractual services for any State agency.
(7) Independent Review Organizations selected by the Commissioner of Insurance pursuant to G.S. 58‑50‑85.
(8) The University of North Carolina. The Board of Governors of the University of North Carolina must adopt policies and procedures governing contracts to obtain the services of a consultant by the constituent institutions of the University of North Carolina. (1975, c. 887, s. 5; 1977, c. 802, s. 50.57; 2001‑446, s. 4.6A; 2006‑95, s. 2.1; 2006‑264, s. 29(l).)
§§ 143‑64.25 through 143‑64.30. Reserved for future codification purposes.
Article 3D.
Procurement of Architectural, Engineering, and Surveying Services.
§ 143‑64.31. Declaration of public policy.
(a) It is the public policy of this State and all public subdivisions and Local Governmental Units thereof, except in cases of special emergency involving the health and safety of the people or their property, to announce all requirements for architectural, engineering, surveying and construction management at risk services, to select firms qualified to provide such services on the basis of demonstrated competence and qualification for the type of professional services required without regard to fee other than unit price information at this stage, and thereafter to negotiate a contract for those services at a fair and reasonable fee with the best qualified firm. If a contract cannot be negotiated with the best qualified firm, negotiations with that firm shall be terminated and initiated with the next best qualified firm. Selection of a firm under this Article shall include the use of good faith efforts by the public entity to notify minority firms of the opportunity to submit qualifications for consideration by the public entity.
(a1) A resident firm providing architectural, engineering, surveying, or construction management at risk services shall be granted a preference over a nonresident firm, in the same manner, on the same basis, and to the extent that a preference is granted in awarding contracts for these services by the other state to its resident firms over firms resident in the State of North Carolina. For purposes of this section, a resident firm is a firm that has paid unemployment taxes or income taxes in North Carolina and whose principal place of business is located in this State.
(b) Public entities that contract with a construction manager at risk under this section shall report to the Secretary of Administration the following information on all projects where a construction manager at risk is utilized:
(1) A detailed explanation of the reason why the particular construction manager at risk was selected.
(2) The terms of the contract with the construction manager at risk.
(3) A list of all other firms considered but not selected as the construction manager at risk and the amount of their proposed fees for services.
(4) A report on the form of bidding utilized by the construction manager at risk on the project.
The Secretary of Administration shall adopt rules to implement the provisions of this subsection including the format and frequency of reporting. (1987, c. 102, s. 1; 1989, c. 230, s. 2; 2001‑496, s. 1; 2006‑210, s. 1.)
§ 143‑64.32. Written exemption of particular contracts.
Units of local government or the North Carolina Department of Transportation may in writing exempt particular projects from the provisions of this Article in the case of:
(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 of local 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. Exemption of certain projects.
State capital improvement projects under the jurisdiction of the State Building Commission, capital improvement projects of The University of North Carolina, and community college capital improvement projects, where the estimated expenditure of public money is less than five hundred thousand dollars ($500,000), are exempt from the provisions of this Article. (1987, c. 102, s. 3.1; c. 830, s. 78(a); 1997‑314, s. 1; 1997‑412, s. 5; 2001‑496, ss. 8(b), 8(c); 2005‑300, s. 1; 2005‑370, s. 1; 2007‑322, s. 2; 2007‑446, s. 7.)
§§ 143‑64.35 through 143‑64.49. Reserved for future codification purposes.
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; 1997‑506, s. 50.)
§ 143‑64.52. State/public school‑contracted child care facilities; limitation of State/local board liability.
The operators of the child care facilities established pursuant to this Article shall assume all financial and legal responsibility for the operation of the programs and shall maintain adequate insurance coverage for the operations taking place in the facilities. Neither the operator or any of the staff of the facilities are considered State employees or local board of education employees by virtue of this Article alone. The State or the local boards of education are financially and legally responsible only for the maintenance of the building. (1991, c. 345, s. 1; 1997‑506, s. 51.)
Article 3F.
State Privacy Act.
§ 143‑64.60. State Privacy Act.
(a) It is unlawful for any State or local government agency to deny to any individual any right, benefit, or privilege provided by law because of such individual's refusal to disclose his social security account number.
The provisions of this subsection shall not apply with respect to:
(1) Any disclosure which is required or permitted by federal statute, or
(2) The disclosure of a social security number to any State or local agency maintaining a system of records in existence and operating before January 1, 1975, if such disclosure was required under statute or regulation adopted prior to such date to verify the identity of an individual.
(b) Any State or local government agency which requests an individual to disclose his social security account number shall inform that individual whether that disclosure is mandatory or voluntary, by what statutory or other authority such number is solicited, and what uses will be made of it. (2001‑256, s. 1; 2001‑487, s. 87.)
§§ 143‑64.61 through 143‑64.69. Reserved for future codification purposes.
Article 3G.
Personal Service Contracts.
§ 143‑64.70. Personal service contracts – reporting requirements.
(a) By January 1 of each year, each State department, agency, and institution shall make a detailed written report to the Office of State Budget and Management and the Office of State Personnel on its utilization of personal services contracts that have an annual expenditure greater than twenty‑five thousand dollars ($25,000). The report by each State department, agency, and institution shall include the following:
(1) Identification of the department and employee responsible for oversight of the performance of the contract.
(2) Vendor or contractor name, object of expenditure description, contract award amount, purchase order or contract number, purchase order start and end date, source of funds, and amount disbursed during the fiscal year.
(3) through (7) Repealed by Session Laws 2007‑322, s. 7, effective July 30, 2007.
(b) By March 15 of each year, the Office of State Budget and Management and the Office of State Personnel shall compile and analyze the information required under subsection (a) of this section and shall submit to the Joint Legislative Commission on Governmental Operations a detailed report on the type, number, duration, cost and effectiveness of State personal services contracts throughout State government. (2001‑424, ss. 6.19(a), (b); 2005‑276, s. 6.38; 2007‑322, s. 7.)
§§ 143‑64.71 through 143‑64.79: Reserved for future codification purposes.
Article 3H.
Overpayments of State Funds.
§ 143‑64.80. Overpayments of State funds to persons in State‑supported positions; recoupment required.
(a) An overpayment of State funds to any person in a State‑funded position, whether in the form of salary or otherwise, shall be recouped by the entity that made the overpayment and, to the extent allowed by law, the amount of the overpayment may be offset against the net wages of the person receiving the overpayment.
(b) No State department, agency, or institution, or other State‑funded entity may forgive repayment of an overpayment of State funds, but shall have a duty to pursue the repayment of State funds by all lawful means available, including the filing of a civil action in the General Court of Justice. (2003‑263, s. 1.)
§§ 143‑64.81 through 143‑64.85: Reserved for future codification purposes.
Article 4.
World War Veterans Loan Administration.
§§ 143‑65 through 143‑105: Deleted by Session Laws 1951, c. 349.
Article 5.
Check on License Forms, Tags and Certificates Used or Issued.
§ 143‑106: Repealed by Session Laws 1983, c. 913, s. 33.
§ 143‑107. Transferred to § 143‑106 by Session Laws 1951, c. 1010, s. 2.
Article 6.
Officers of State Institutions.
§ 143‑108. Secretary to be elected from directors.
The board of directors of the various State institutions shall elect one of their number as secretary, who shall act as such at all regular or special meetings of such boards. (1907, c. 883, s. 1; C.S., s. 7517.)
§ 143‑109. Directors to elect officers and employees.
All officers and employees of the various State institutions who hold elective positions shall be nominated and elected by the board of directors of the respective institutions. (1907, c. 883, s. 3; C.S., s. 7518.)
§ 143‑110. Places vacated for failure to attend meetings.
Unless otherwise specially provided by law, whenever a trustee or director of any institution supported in whole or in part by State appropriation shall fail to be present for two successive years at the regular meetings of the board, his place as trustee or director shall be deemed vacant and shall be filled as provided by law for other vacancies on such boards.
This section shall not apply to any trustee or director who holds office as such by virtue of another public office held by him and shall not apply to any trustee or director chosen by any agency or authority other than the State of North Carolina. (1927, c. 225.)
§ 143‑111. Director not to be elected to position under board.
It shall be unlawful for any board of directors, board of trustees or other governing body of any of the various State institutions (penal, charitable, or otherwise) to appoint or elect any person who may be or has been at any time within six months a member of such board of directors, board of trustees, or other governing body, to any position in the institution, which position may be under the control of such board of directors, board of trustees, or other governing body. (1909, c. 831; C.S., s. 7519.)
§ 143‑112. Superintendents to be within call of board meetings.
The superintendent of each of the various State institutions shall be present on the premises of his institution and within the call of the board of directors during all regular or special meetings of the board, and shall respond to all calls of the board for any information which it may wish at his hands. (1907, c. 883, s. 1; C.S., s. 7520.)
§ 143‑113. Trading by interested officials forbidden.
The directors, stewards, and superintendents of the State institutions shall not trade directly or indirectly with or among themselves, or with any concern in which they are interested, for any supplies needed by any such institutions. (1907, c. 883, s. 2; C.S., s. 7521.)
§ 143‑114. Diversion of appropriations to State institutions.
It shall be unlawful for the board of trustees, board of directors, or other body controlling any State institution, to divert, use, or expend any moneys appropriated for the use of said institutions for its permanent improvement and enlargement to the payment of any of the current expenses of said institution or for the payment of the cost of the maintenance thereof; it shall likewise be unlawful for any board of trustees, board of directors, or other controlling body of any State institution to which money is appropriated for its maintenance by the State to divert, use or expend any money so appropriated for maintenance, for the permanent enlargement or permanent equipment, or the purchase of land for said institution. (1921, c. 232, s. 1; C.S., s. 7521 (a).)
§ 143‑115. Trustee, director, officer or employee violating law guilty of misdemeanor.
Any member or members of any board of trustees, board of directors, or other controlling body governing any of the institutions of the State, or any officer, employee of, or person holding any position with any of the institutions of the State, violating any of the provisions of G.S. 143‑114, shall be guilty of a Class 1 misdemeanor, and upon conviction in any court of competent jurisdiction judgment shall be rendered by such court removing such member, officer, employee, or person holding any position from his place, office or position. (1921, c. 232, s. 2; C.S., s. 7521 (b); 1993, c. 539, s. 1005; 1994, Ex. Sess., c. 24, s. 14(c).)
§ 143‑116. Venue for trial of offenses.
All offenses against G.S. 143‑114 and 143‑115 shall be held to have been committed in the County of Wake and shall be tried and disposed of by the courts of said county having jurisdiction thereof. (1921, c. 232, s. 3; C.S., s. 7521 (c).)
§§ 143‑116.1 through 143‑116.5. Reserved for future codification purposes.
Article 6A.
Rules of Conduct; Traffic Laws for Institutions.
§ 143‑116.6. Rules concerning conduct; violation.
(a) The Secretary of Health and Human Services may adopt rules for State‑owned institutions under the jurisdiction of the Department of Health and Human Services for the regulation and deportment of persons in the buildings and grounds of the institutions, and for the suppression of nuisances and disorder. Rules adopted under this section shall be consistent with G.S. 14‑132. Copies of the rules shall be posted at the entrance to the grounds and at different places on the grounds.
(b) Any person violating such rules shall, upon conviction, be guilty of a Class 2 misdemeanor. (1981, c. 614, s. 5; 1987, c. 827, s. 255; 1993, c. 539, s. 1006; 1994, Ex. Sess., c. 24, s. 14(c); 1997‑443, s. 11A.118(a).)
§ 143‑116.7. Motor vehicle laws applicable to streets, alleys and driveways on the grounds of Department of Health and Human Services institutions; traffic regulations; registration and regulation of motor vehicles.
(a) Except as otherwise provided in this section, all the provisions of Chapter 20 of the General Statutes relating to the use of the highways of the State and the operation of motor vehicles thereon are made applicable to the streets, alleys, roads and driveways on the grounds of all State institutions under the jurisdiction of the Department of Health and Human Services. Any person violating any of the provisions of the Chapter in or on such streets, alleys, roads or driveways shall, upon conviction be punished as prescribed in this section. Nothing herein contained shall be construed as in any way interfering with the ownership and control of the streets, alleys, roads and driveways on the grounds of the State institutions operated by the Department of Health and Human Services.
(b) The Secretary of Health and Human Services may adopt rules consistent with the provisions of Chapter 20 of the General Statutes, with respect to the use of the streets, alleys, and driveways of institutions of the Department of Health and Human Services. Based upon a traffic and engineering investigation, the Secretary of Health and Human Services may also determine and establish speed limits on streets lower than those provided in G.S. 20‑141.
(c) The Secretary may, by rule, regulate parking and establish parking areas on the grounds of institutions of the Department of Health and Human Services.
(d) The Secretary may, by rule, provide for the registration and parking of motor vehicles maintained and operated by employees of the institution, and may fix fees, not to exceed ten dollars ($10.00) per year, for such registration.
(e) Rules adopted under this section may provide that violation subjects the offender to a civil penalty, not to exceed fifty dollars ($50.00). Penalties may be graduated according to the seriousness of the offense or the number of prior offenses by the person charged but shall not exceed fifty dollars ($50.00). The Secretary may establish procedures for the collection of penalties, and they may be enforced by civil action in the nature of debt.
(f) A rule adopted under this section may provide for the removal of illegally parked motor vehicles. Any such removal must be in compliance with Article 7A of Chapter 20 of the General Statutes.
(g) Any violation under this section or of a provision of Chapter 20 of the General Statutes made applicable to the grounds of State institutions solely by operation of this section shall be considered an infraction and shall be subject to an infraction penalty not to exceed fifty dollars ($50.00). A rule adopted under this section may provide that a violation shall not be an infraction, but shall be enforced by other methods available, including the methods authorized by subsection (e).
(h) Any fees or civil penalties collected pursuant to this section shall be deposited in the General Fund Budget Code of the institution where the fees or civil penalties are collected and shall only be used to support the cost of administration of this section. Infraction penalties shall be disbursed as provided in G.S. 14‑3.1(a). (1981, c. 614, s. 5; 1985, c. 672; c. 764, s. 39; 1985 (Reg. Sess., 1986), c. 852, ss. 13, 14; 1987, c. 827, s. 256; 1997‑443, s. 11A.118(a).)
§ 143‑116.8. Motor vehicle laws applicable to State parks and forests road system.
(a) Except as otherwise provided in this section, all the provisions of Chapter 20 of the General Statutes relating to the use of highways and public vehicular areas of the State and the operation of vehicles thereon are made applicable to the State parks and forests road system. For the purposes of this section, the term "State parks and forests road system" shall mean the streets, alleys, roads, public vehicular areas and driveways of the State parks, State forests, State recreation areas, State lakes, and all other lands administered by the Department of Environment and Natural Resources. This term shall not be construed, however, to include streets that are a part of the State highway system. Any person violating any of the provisions of Chapter 20 hereby made applicable in the State parks and forests road system shall, upon conviction, be punished in accordance with Chapter 20. Nothing herein contained shall be construed as in any way interfering with the ownership and control of the State parks and forests road system by the Department of Environment and Natural Resources.
(b) (1) It shall be unlawful for a person to operate a vehicle in the State parks and forests road system at a speed in excess of twenty‑five miles per hour (25 mph). When the Secretary of Environment and Natural Resources determines that this speed is greater than reasonable and safe under the conditions found to exist in the State parks and forests road system, the Secretary may establish a lower reasonable and safe speed limit. No speed limit established by the Secretary pursuant to this provision shall be effective until posted in the part of the system sought to be affected.
(2) Any person convicted of violating this subsection by operating a vehicle on the State parks and forests road system while fleeing or attempting to elude arrest or apprehension by a law enforcement officer with authority to enforce the motor vehicle laws, shall be punished as provided in G.S. 20‑141.5.
(3) For the purposes of enforcement and administration of Chapter 20, the speed limits stated and authorized to be adopted by this section are speed limits under Chapter 20.
(4) The Secretary may designate any part of the State parks and forests road system for one‑way traffic and shall erect appropriate signs giving notice thereof. It shall be a violation of G.S. 20‑165.1 for any person to willfully drive or operate any vehicle on any part of the State parks and forests road system so designated except in the direction indicated.
(5) The Secretary shall have power, equal to the power of local authorities under G.S. 20‑158 and G.S. 20‑158.1, to place vehicle control signs and signals and yield‑right‑of‑way signs in the State parks and forests road system; the Secretary also shall have power to post such other signs and markers and mark the roads in accordance with Chapter 20 as the Secretary may determine appropriate for highway safety and traffic control. The failure of any vehicle driver to obey any vehicle control sign or signal, or any yield‑right‑of‑way sign placed under the authority of this section in the State parks and forests road system shall be an infraction and shall be punished as provided in G.S. 20‑176.
(c) The Secretary of Environment and Natural Resources may, by rule, regulate parking and establish parking areas, and provide for the removal of illegally parked motor vehicles on the State parks and forests road system. Any rule of the Secretary shall be consistent with the provisions of G.S. 20‑161, 20‑161.1, and 20‑162. Any removal of illegally parked motor vehicles shall be in compliance with Article 7A of Chapter 20.
(d) A violation of the rules issued by the Secretary of Environment and Natural Resources under subsection (c) of this section is an infraction pursuant to G.S. 20‑162.1, and shall be punished as therein provided. These rules may be enforced by the Commissioner of Motor Vehicles, the Highway Patrol, or other law enforcement officers of the State, counties, cities or other municipalities having authority under Chapter 20 to enforce laws or rules on travel or use or operation of vehicles or the use or protection of the highways of the State.
(e) The provisions of Chapter 20 are applicable at all times to the State parks and forests road system, including closing hours, regardless of the fact that during closing hours the State parks and forests road system is not open to the public as a matter of right. (1987, c. 474, s. 1; 1989, c. 727, s. 218(96); 1997‑443, ss. 11A.119(a), 19.26(e).)
Article 7.
Persons Admitted to Department of Health and Human Services Institutions to Pay Costs.
§ 143‑117. Institutions included.
All persons admitted to the following institutions operated by the Department of Health and Human Services are required to pay the actual cost of their care, treatment, training and maintenance at these institutions: regional psychiatric hospitals, special care centers, regional mental retardation centers, schools for emotionally disturbed children, and alcohol and drug abuse treatment centers. (1925, c. 120, s. 1; 1949, c. 1070; 1957, c. 1232, s. 29; 1959, c. 1028, ss. 1‑7; 1967, c. 188, s. 1; c. 834, s. 1; 1969, c. 20; c. 837, s. 4; 1971, c. 469; 1981, c. 562, s. 6; 1985, c. 508, s. 2; 1987, c. 856, s. 14; 1989, c. 145, s. 2; 1997‑443, ss. 11A.92, 11A.118(a).)
§ 143‑117.1. Definitions.
As used in this Article, the following terms have the meaning specified unless the content clearly implies otherwise:
(1) "Care" means care, treatment, training, maintenance, habilitation and rehabilitation of a person admitted to institutions covered by this Article.
(2) "Department" means the Department of Health and Human Services.
(3) "Persons admitted" means clients of regional psychiatric hospitals, State special care centers, regional mental retardation centers, schools for emotionally disturbed children, and alcohol and drug abuse treatment centers, including clients who may be treated on an outpatient basis.
(4) "Secretary" means the Secretary of Health and Human Services. (1985, c. 508, s. 3; 1987, c. 856, s. 15; 1989, c. 145, s. 3; c. 770, s. 41; 1997‑443, s. 11A.118(a).)
§ 143‑118. Secretary of Health and Human Services to fix cost and charges.
(a) The Secretary shall determine and fix the actual cost of care to be paid by and for each person admitted to an institution. The Secretary is given full and final authority to fix a general rate of charge based on said actual cost of providing care, to be paid by persons admitted able to pay the rate or charge, or, in cases where indigent persons admitted are later found to be nonindigent, then cost for their care shall be paid in one or more payments based on the rate of charge in effect for the period or periods of time during which the persons admitted were receiving care in the institutions.
(b), (c) Repealed by Session Laws 1985, c. 508, s. 5.
(d) The Secretary shall ascertain which of the persons admitted or persons legally responsible for them are financially able to pay the cost fixed.
(e) The Secretary is empowered to enter into contracts of compromise of accounts owing to the institution for past, present or future care at the institutions, including but not limited to the authority to enter into a contract to charge nothing, which contract shall be binding on the respective institution under the terms and for the period specified in the contract. The rates set by the compromise shall be determined in the discretion of the Secretary by the ability to pay of the person admitted or the person legally responsible for his support. This subsection shall not be construed as mandatory and if a contract is not entered into or terminates or if the obligor defaults in the payment of a compromise account or any installment, then the full actual cost of care shall be assessed against the person admitted.
(f) For any client admitted under Part 2 of Article 5 of G.S. 122C to a State facility for the mentally ill designated for research purposes in accordance with G.S. 122C‑210.2, the Secretary may reduce the rates set by compromise in G.S. 143‑118(e) by not more than one‑half the amount of that rate. (1925, c. 120, s. 2; 1935, c. 186, s. 1; 1981, c. 562, s. 6; 1985, c. 508, ss. 4‑6; 1987, c. 358, s. 2; 1997‑443, s. 11A.118(a).)
§ 143‑118.1: Repealed by Session Laws 1987, c. 699, s. 1.
§ 143‑119. Payments.
(a) The cost of care when fixed by the Secretary shall be paid by the person admitted or by the person legally responsible for payment. The payment of the cost of care constitutes a valid expenditure of funds held by a fiduciary of a person admitted, including Clerks of Court, and a receipt for payment of such costs shall be a valid voucher in the fiduciary's settlement of his accounts of his trust.
(b) Immediately upon the determination of the cost, the person admitted or the person legally responsible for paying the cost shall be notified of the amount due and a statement shall be rendered on a monthly basis.
(c) If the person admitted or the person legally responsible for paying the cost is not able to pay the total cost due on a monthly basis, the Secretary may arrange for the payment of a portion of the cost monthly and extend the payments until the costs are paid or may arrange for any other method of payment.
(d) The institutions shall maintain a list of all unpaid accounts for audit by the State auditors.
(e) The Secretary may discharge from the institution persons admitted who have been found able to pay but who refuse to pay costs fixed against them, unless the person was committed by an order of a court of competent jurisdiction. (1925, c. 120, s. 3; 1935, c. 186, s. 2; 1983, c. 23, s. 2; c. 806; 1985, c. 508, s. 7.)
§ 143‑120. Repealed by Session Laws 1985, c. 508, s. 8, effective October 1, 1985.
§ 143‑121. Action to recover costs.
(a) Immediately upon the fixing of the amount of actual cost, a cause of action shall accrue for the costs in favor of the State for the use of the institution in which the person admitted received care against the person admitted or person legally responsible for paying the costs.
(b) The State for the use of the institution may sue upon the cause of action in the courts of Wake County, in the courts of the county in which the institution is located, or in the courts of the county where the defendant resides.
(c) In any action to recover the cost of care, a verified and itemized statement of the account signed by the reimbursement director of the institution showing the period of time during which the person admitted was receiving care in the institution, the daily or monthly rate of charge fixed by the Secretary, the total amount due on the account, and the proper credits for any payments which may have been made on the account, shall be filed with the complaint and shall constitute a prima facie case. The State shall be entitled to a judgment in the case in the absence of allegation and proof on the part of the person admitted or person legally responsible for paying the costs that the verified and itemized statement is not correct because of:
(1) An error in the calculation of the amount due predicated upon the rate of charge fixed by the Secretary;
(2) An error as to the period of time during which the person admitted received care in the institution; or
(3) An error in not properly crediting the account with any payment which may have been made.
(d) The provisions of this Article directing the Secretary to determine which of the persons admitted are nonindigent and able to pay for their care, notify the person admitted or person legally responsible for the cost of his care of the amount due, to render a statement of the amount due monthly, to discharge persons admitted found able to pay but who refuse to pay and all of the other provisions relating to the manner in which the Secretary shall assess and collect costs are directory and not mandatory. The failure of the Secretary to perform any of these provisions shall not affect the right of the State to recover in any action brought for the cost of care against the person admitted, a person legally responsible for the cost of his care, or his estate if he has died. (1925, c. 120, s. 5; 1985, c. 508, s. 9.)
§ 143‑121.1. Ratification of past acts.
The past acts of the Secretary, boards of directors of the institutions and the North Carolina Hospital Board of Control in fixing the rate to be paid by persons admitted are hereby in every respect ratified and validated, and on all claims and causes of action now pending or which hereafter may be made or begun for the payment of the past indebtedness for care, the rates fixed by the party authorized the fix rates at the time the care was provided shall prevail and collections shall be made in accordance with those rates unless the Secretary enters into a contract compromising the account. (1985, c. 508, s. 10.)
§ 143‑122. No limitation of action.
No statute of limitation shall apply to or constitute a defense to any cause of action asserted by the State under this Article and all statutes containing limitations which might apply to these actions are hereby repealed as to all such causes of action for costs previously incurred and now remaining unpaid. (1925, c. 120, s. 6; 1985, c. 508, s. 11.)
§ 143‑123. Power to admit indigent persons.
(a) This Article shall not be construed to limit the authority of the institutions to provide care to all indigent persons who are otherwise entitled to admission in any of the institutions.
(b) If at any time any person admitted and determined to be indigent shall succeed to or inherit, or acquire, in any manner, property or otherwise be reputed to be solvent, then the State shall have the full right and authority to collect and sue for the entire cost of care without hinderance of any statute of limitations. (1925, c. 120, s. 7; 1985, c. 508, s. 11.)
§ 143‑124. Suit by Attorney General; venue.
At the request of the institution, all actions and suits shall be prosecuted by the Attorney General. The institution shall have the right to select the venue of the action. (1925, c. 120, s. 8; 1985, c. 508, s. 11.)
§ 143‑125. Judgment; never barred.
Any judgment obtained by the State under this Article shall never be barred by any statute of limitation but shall to the extent unpaid continue in force; and, at the request of the Attorney General or the director of the institution, the clerk shall issue an execution. (1925, c. 120, s. 9; 1985, c. 508, s. 11.)
§ 143‑126. Death of a person admitted; lien on estate.
(a) In the event of the death of person admitted, leaving any cost of care unpaid, then the unpaid cost shall constitute a lien on all property, both real and personal of the decedent and shall be payable from the decedent's estate as a fourth class claim after the payment of taxes to the State or its subdivisions.
(b) Upon the death of person admitted, the Department shall file a verified statement of account containing the following:
(1) The name of the person admitted;
(2) The date of death of the person admitted;
(3) The inclusive dates of the provision of care;
(4) The name of the institution providing care; and
(5) The amount of the unpaid balance.
The statement shall be filed in the office of the clerk of superior court in the county of residence of the deceased person admitted and in the county or counties in which real property is located in which the decedent owns an interest. The statement shall be docketed and indexed by the clerk.
(c) From the time of docketing, the statement shall be and constitute due notice of a lien against all real property then owned in whole or in part by the decedent and lying in such county to the extent of the total amount of the unpaid balance for the decedent's care as evidenced by the verified statement of account. Payments made by a fiduciary including those made by a clerk of superior court, in full or partial satisfaction of such lien, shall constitute a valid expenditure as provided in G.S. 143‑119.
(d) No action to enforce such lien may be brought more than three years from the date of death of the person admitted. The failure to bring such action or the failure of the Department to file such statement shall not be a complete bar against recovery but shall only extinguish the lien and priority established by it.
(e) Upon receipt of the unpaid balance by the institution or Department or upon agreement of compromise of such unpaid balance, the Department shall notify the clerks of superior court in the counties where the lien has been recorded that the unpaid balance has been paid, and the clerks shall cancel the lien of record. (1925, c. 120, s. 10; 1967, c. 960; 1973, c. 476, s. 133; 1985, c. 508, s. 11.)
§ 143‑126.1. Lien on property for unpaid balance due institution.
(a) There is hereby created a general lien on both the real and personal property of any person admitted who is receiving or who has received care in any of the institutions operated by the Department of Health and Human Services to the extent of the total amount of the unpaid balance shown on the verified statement of account for charges from and after July 1, 1967.
(b) Such general lien for the unpaid balance for care at the institutions shall apply to the property, both real and personal, of the person admitted whether held by him or his trustee or guardian.
(c) At the time deemed suitable in the discretion of the Department, there may be filed a verified statement of account containing the following:
(1) The name of the person admitted;
(2) The inclusive dates of the provision of care and a statement that care is continuing if applicable;
(3) The name of the institution providing care; and
(4) The amount of the unpaid balance.
The statement may be filed in the office of the clerk of superior court in the county of residence of the person admitted and in each county or counties where real property in which the patient owns an interest is found. The statement shall be docketed and indexed by the clerk.
(d) From the time of docketing, the statement shall be and constitute due notice of a lien against the real property then owned or thereafter acquired by the patient and lying in such county to the extent of the total amount of the unpaid balance for the person admitted's care as evidenced by the verified statement of account for charges from and after July 1, 1967. Payments made by a fiduciary, including those made by a clerk of superior court, in full or partial satisfaction of such lien, shall constitute a valid expenditure as provided in G.S. 143‑119.
(e) The lien thus established shall take priority over all other liens subsequently acquired and shall continue from the date of filing until satisfied. No action to enforce such lien may be brought more than three years from the last date of filing of such lien nor more than three years after the death of any person admitted. The failure to bring such action or the failure of the Department to file said statement shall not be a complete bar against recovery but shall only extinguish the lien and priority established by it.
(f) Upon receipt of the full unpaid balance by the institution or Department or upon agreement of compromise of such unpaid balance, the Department shall notify the clerks of superior court in the counties where the lien has been docketed that the unpaid balance has been paid, and the clerks shall cancel the lien of record.
(g) Notwithstanding the foregoing provisions, no such lien shall be enforceable against any funds paid by the State to a person admitted after judgment or settlement of a claim for damages arising out of the negligent injury of such person at any of the institutions during the life of person admitted. Upon the death of the person admitted, any remaining proceeds of a judgment or settlement under this subsection in the hands of the deceased shall become a general asset of the estate and subject to any lien of the State. (1967, c. 959; 1973, c. 476, s. 133; 1979, c. 978, s. 1; 1985, c. 508, s. 11; 1997‑443, s. 11A.118(a).)
§ 143‑127. Money paid into State treasury.
All money collected by any institution pursuant to this Article shall be by such institution paid into the State treasury, and shall be by the State Treasurer credited to the account of the institution collecting and turning the same into the treasury, and shall be paid out by warrants drawn as in cases of appropriations made for the maintenance of such institutions and shall be used by such institution as it uses and is authorized by law to use appropriations made for maintenance. (1925, c. 120, s. 11; 1983, c. 913, s. 34.)
§ 143‑127.1. Parental liability for payment of cost of care for long‑term patients in Department of Health and Human Services facilities.
(a) Notwithstanding the foregoing provisions of G.S. 143‑117 through 143‑127 inclusive, the natural or adoptive parents of persons who are non‑Medicaid, long‑term patients at facilities owned or operated by the Department of Health and Human Services shall only be liable on the charges made by such facility for treatment, care and maintenance for an amount not to exceed the cost of caring for a normal child at home as determined from standard sources by the Department of Health and Human Services.
(b) Parents or adoptive parents of a patient in a facility owned or operated by the Department of Health and Human Services shall not be liable for any charges made by such facility for treatment, care and maintenance of such a patient incurred or accrued subsequent to such patient attaining age 18.
(c) For purposes of this section, the term "long‑term patient" is defined as a person who has been a patient in a facility owned or operated by the Department of Health and Human Services for a continuous period in excess of 120 days. No absence of a patient from the facility due to a temporary or trial visit shall be counted as interrupting the accrual of the 120 days herein required to attain the status of a long‑term patient.
(d) Repealed by Session Laws 1993, c. 386, s. 2. (1971, c. 218, s. 1; 1973, c. 476, s. 133; c. 775; 1975, c. 19, s. 48; 1979, c. 838, ss. 25‑27; 1983, c. 12; 1983 (Reg. Sess., 1984), c. 1116, s. 82; 1987, c. 738, s. 68; 1993, c. 386, s. 2; 1997‑443, s. 11A.118(a).)
Article 7A.
Damage of Personal Property in State Institutions.
§ 143‑127.2. Repair or replacement of personal property.
The Secretary of Health and Human Services may adopt rules governing repair or replacement of personal property items excluding private passenger vehicles that belong to employees, volunteers, or clients of State facilities within the Department of Health and Human Services and that are damaged or stolen by clients of the State facilities provided that the item is determined by the Secretary to be:
(1) Damaged or stolen on or off facility grounds during the performance of employment or volunteer duty and necessary for the employee or volunteer to have in his possession to perform his assigned duty; or
(2) Damaged or stolen on or off the facility grounds while the client is under the supervision of the facility and necessary for the client to have in his possession as part of his treatment environment. (1985, c. 393, s. 1; 1987, c. 264, s. 4; 1989, c. 189, s. 1; 1997‑443, s. 11A.118(a).)
§ 143‑127.3. Negligence.
Reimbursement for items damaged or stolen shall not be granted in instances in which the employee, volunteer, or client, if competent, is determined to be negligent or otherwise at fault for the damage or loss of the property. Negligence shall be determined by the director of the facility. (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.)
§ 143‑127.5. Limitations.
Reimbursement shall be limited to the amount specified in the rules and shall not exceed a maximum of two hundred dollars ($200.00) per incident. No employee, volunteer, or client shall receive more than five hundred dollars ($500.00) per year in reimbursement. Reimbursement is subject to the availability of funds. (1985, c. 393, s. 1; 1987, c. 264, s. 1; 1989, c. 189, s. 1.)
§ 143‑127.6. Administrative and judicial review.
Chapter 150B of the General Statutes governs administrative and judicial review of a decision under this Article by the director of a facility. (1985, c. 393, s. 1; 1987, c. 264, ss. 2, 4, c. 827, s. 257; 1989, c. 189, s. 1.)
Article 8.
Public Contracts.
§ 143‑128. 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 contracts for the erection, construction, alteration or repair of any buildings for the State, or for any county, municipality, or other public body, shall have prepared separate specifications for each of the following subdivisions or branches of work to be performed:
(1) Heating, ventilating, air conditioning and accessories (separately or combined into one conductive system), refrigeration for cold storage (where the cold storage cooling load is 15 tons or more of refrigeration), and all related work.
(2) Plumbing and gas fittings and accessories, and all related work.
(3) Electrical wiring and installations, and all related work.
(4) General work not included in subdivisions (1), (2), and (3) of this subsection relating to the erection, construction, alteration, or repair of any building.
Specifications for contracts that will be bid under the separate‑prime system or dual bidding system shall be drawn as to permit separate and independent bidding upon each of the subdivisions of work enumerated in this subsection. The above enumeration of subdivisions or branches of work shall not be construed to prevent any officer, board, department, commission or commissions from preparing additional separate specifications for any other category of work.
(a1) Construction methods. – The State, a county, municipality, or other public body shall award contracts to erect, construct, alter, or repair buildings pursuant to any of the following methods:
(1) Separate‑prime bidding.
(2) Single‑prime bidding.
(3) Dual bidding pursuant to subsection (d1) of this section.
(4) Construction management at risk contracts pursuant to G.S. 143‑128.1.
(5) Alternative contracting methods authorized pursuant to G.S. 143‑135.26(9).
(a2) Annually, on or before April 1st, beginning April 1, 2003, The University of North Carolina and all other public entities shall report to the Secretary of the Department of Administration on the effectiveness and cost‑benefit of utilization of each of the construction methods authorized in G.S. 143‑128(a1) that are used by the public entity. The reports, which shall be initially filed in the year in which the project is completed, shall be in the format and contain the data prescribed by the Secretary of Administration and shall include at least the following:
(1) The type of construction method used on the project.
(2) The total dollar value of building projects by specific project with costs.
(3) The bid costs and relevant post‑bid costs.
(4) A detailed listing of all contractors and subcontractors used on the project indicating whether the contractor or subcontractor was an out‑of‑state contractor or subcontractor.
(5) If any contractor or subcontractor was an out‑of‑state contractor or subcontractor, the reasons why the contractor or subcontractor was selected.
The Secretary of the Department of Administration shall report to the General Assembly on or before May 1st each year on the information collected pursuant to this subsection.
(b) Separate‑prime contracts. – When the State, county, municipality, or other public body uses the separate‑prime contract system, it shall accept bids for each subdivision of work for which specifications are required to be prepared under subsection (a) of this section and shall award the respective work specified separately to responsible and reliable persons, firms or corporations regularly engaged in their respective lines of work. When the estimated cost of work to be performed in any single subdivision or branch for which separate bids are required by this subsection is less than twenty‑five thousand dollars ($25,000), the same may be included in the contract for one of the other subdivisions or branches of the work, irrespective of total project cost. The contracts shall be awarded to the lowest responsible, responsive bidders, taking into consideration quality, performance, the time specified in the bids for performance of the contract, and compliance with G.S. 143‑128.2. Bids may also be accepted from and awards made to separate contractors for other categories of work.
Each separate contractor shall be directly liable to the State of North Carolina, or to the county, municipality, or other public body and to the other separate contractors for the full performance of all duties and obligations due respectively under the terms of the separate contracts and in accordance with the plans and specifications, which shall specifically set forth the duties and obligations of each separate contractor. For the purpose of this section, "separate contractor" means any person, firm or corporation who shall enter into a contract with the State, or with any county, municipality, or other public entity to erect, construct, alter or repair any building or buildings, or parts of any building or buildings.
(c) Repealed by Session Laws 2001‑496, s. 3, effective January 1, 2001.
(d) Single‑prime contracts. – All bidders in a single‑prime project shall identify on their bid the contractors they have selected for the subdivisions or branches of work for:
(1) Heating, ventilating, and air conditioning;
(2) Plumbing;
(3) Electrical; and
(4) General.
The contract shall be awarded to the lowest responsible, responsive bidder, taking into consideration quality, performance, the time specified in the bids for performance of the contract, and compliance with G.S. 143‑128.2. A contractor whose bid is accepted shall not substitute any person as subcontractor in the place of the subcontractor listed in the original bid, except (i) if the listed subcontractor's bid is later determined by the contractor to be nonresponsible or nonresponsive or the listed subcontractor refuses to enter into a contract for the complete performance of the bid work, or (ii) with the approval of the awarding authority for good cause shown by the contractor. The terms, conditions, and requirements of each contract between the contractor and a subcontractor performing work under a subdivision or branch of work listed in this subsection shall incorporate by reference the terms, conditions, and requirements of the contract between the contractor and the State, county, municipality, or other public body.
When contracts are awarded pursuant to this section, the public body shall make available to subcontractors the dispute resolution process as provided for in subsection (f1) of this section.
(d1) Dual bidding. – The State, a county, municipality, or other public entity may accept bids to erect, construct, alter, or repair a building under both the single‑prime and separate‑prime contracting systems and shall award the contract to the lowest responsible, responsive bidder under the single‑prime system or to the lowest responsible, responsive bidder under the separate‑prime system, taking into consideration quality, performance, compliance with G.S. 143‑128.2, and time specified in the bids to perform the contract. In determining the system under which the contract will be awarded to the lowest responsible, responsive bidder, the public entity may consider cost of construction oversight, time for completion, and other factors it considers appropriate. The bids received as separate‑prime bids shall be received, but not opened, one hour prior to the deadline for the submission of single‑prime bids. The amount of a bid submitted by a subcontractor to the general contractor under the single‑prime system shall not exceed the amount bid, if any, for the same work by that subcontractor to the public entity under the separate‑prime system. The provisions of subsection (b) of this section shall apply to separate‑prime contracts awarded pursuant to this section and the provisions of subsection (d) of this section shall apply to single‑prime contracts awarded pursuant to this section.
(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 a project to a single responsible and reliable person, firm or corporation, which may be a prime contractor. In executing this responsibility, the designated project expediter may recommend to the State, county, municipality, or other public body whether payment to a contractor should be approved. The project expediter, if required by the contract documents, shall be responsible for preparing the project schedule and shall allow all contractors and subcontractors performing any of the branches of work listed in subsection (d) of this section equal input into the preparation of the initial schedule. Whenever separate contracts are awarded and separate contractors engaged for a project pursuant to this section, the public body may provide in the contract documents for resolution of project disputes through alternative dispute resolution processes as provided for in subsection (f1) of this section.
(f) Repealed by Session Laws 2001‑496, s. 3, effective January 1, 2001.
(f1) Dispute resolution. – A public entity shall use the dispute resolution process adopted by the State Building Commission pursuant to G.S. 143‑135.26(11), or shall adopt another dispute resolution process, which shall include mediation, to be used as an alterative to the dispute resolution process adopted by the State Building Commission. This dispute resolution process will be available to all the parties involved in the public entity's construction project including the public entity, the architect, the construction manager, the contractors, and the first‑tier and lower‑tier subcontractors and shall be available for any issues arising out of the contract or construction process. The public entity may set a reasonable threshold, not to exceed fifteen thousand dollars ($15,000), concerning the amount in controversy that must be at issue before a party may require other parties to participate in the dispute resolution process. The public entity may require that the costs of the process be divided between the parties to the dispute with at least one‑third of the cost to be paid by the public entity, if the public entity is a party to the dispute. The public entity may require in its contracts that a party participate in mediation concerning a dispute as a precondition to initiating litigation concerning the dispute.
(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 three hundred thousand dollars ($300,000) or less.
(3) The erection, construction, alteration, or repair of a building by The University of North Carolina or its constituent institutions when the cost thereof is five hundred thousand dollars ($500,000) or less.
Notwithstanding the other provisions of this subsection, subsection (f1) of this section shall apply to any erection, construction, alteration, or repair of a building by a public entity. (1925, c. 141, s. 2; 1929, c. 339, s. 2; 1931, c. 46; 1943, c. 387; 1945, c. 851; 1949, c. 1137, s. 1; 1963, c. 406, ss. 2‑7; 1967, c. 860; 1973, c. 1419; 1977, c. 620; 1987 (Reg. Sess., 1988), c. 1108, ss. 4, 5; 1989, c. 480, s. 1; 1995, c. 358, s. 4; c. 367, ss. 1, 4, 5; c. 509, s. 79; 1998‑137, s. 1; 1998‑193, s. 1; 2001‑496, ss. 3, 13; 2002‑159, s. 42; 2007‑322, s. 3.)
§ 143‑128.1. Construction management at risk contracts.
(a) For purposes of this section and G.S. 143‑64.31:
(1) "Construction management services" means services provided by a construction manager, which may include preparation and coordination of bid packages, scheduling, cost control, value engineering, evaluation, preconstruction services, and construction administration.
(2) "Construction management at risk services" means services provided by a person, corporation, or entity that (i) provides construction management services for a project throughout the preconstruction and construction phases, (ii) who is licensed as a general contractor, and (iii) who guarantees the cost of the project.
(3) "Construction manager at risk" means a person, corporation, or entity that provides construction management at risk services.
(4) "First‑tier subcontractor" means a subcontractor who contracts directly with the construction manager at risk.
(b) The construction manager at risk shall be selected in accordance with Article 3D of this Chapter. Design services for a project shall be performed by a licensed architect or engineer. The public owner shall contract directly with the architect or engineer.
(c) The construction manager at risk shall contract directly with the public entity for all construction; shall publicly advertise as prescribed in G.S. 143‑129; and shall prequalify and accept bids from first‑tier subcontractors for all construction work under this section. The prequalification criteria shall be determined by the public entity and the construction manager at risk to address quality, performance, the time specified in the bids for performance of the contract, the cost of construction oversight, time for completion, capacity to perform, and other factors deemed appropriate by the public entity. The public entity shall require the construction manager at risk to submit its plan for compliance with G.S. 143‑128.2 for approval by the public entity prior to soliciting bids for the project's first‑tier subcontractors. A construction manager at risk and first‑tier subcontractors shall make a good faith effort to recruit and select minority businesses for participation in contracts pursuant to G.S. 143‑128.2. A construction manager at risk may perform a portion of the work only if (i) bidding produces no responsible, responsive bidder for that portion of the work, the lowest responsible, responsive bidder will not execute a contract for the bid portion of the work, or the subcontractor defaults and a prequalified replacement cannot be obtained in a timely manner, and (ii) the public entity approves of the construction manager at risk's performance of the work. All bids shall be opened publicly, and once they are opened, shall be public records under Chapter 132 of the General Statutes. The construction manager at risk shall act as the fiduciary of the public entity in handling and opening bids. The construction manager at risk shall award the contract to the lowest responsible, responsive bidder, taking into consideration quality, performance, the time specified in the bids for performance of the contract, the cost of construction oversight, time for completion, compliance with G.S. 143‑128.2, and other factors deemed appropriate by the public entity and advertised as part of the bid solicitation. The public entity may require the selection of a different first‑tier subcontractor for any portion of the work, consistent with this section, provided that the construction manager at risk is compensated for any additional cost incurred.
When contracts are awarded pursuant to this section, the public entity shall provide for a dispute resolution procedure as provided in G.S. 143‑128(f1).
(d) The construction manager at risk shall provide a performance and payment bond to the public entity in accordance with the provisions of Article 3 of Chapter 44A of the General Statutes. (2001‑496, s. 2.)
§ 143‑128.2. Minority business participation goals.
(a) The State shall have a verifiable ten percent (10%) goal for participation by minority businesses in the total value of work for each State building project, including building projects done by a private entity on a facility to be leased or purchased by the State. A local government unit or other public or private entity that receives State appropriations for a building project or other State grant funds for a building project, including a building project done by a private entity on a facility to be leased or purchased by the local government unit, where the project cost is one hundred thousand dollars ($100,000) or more, shall have a verifiable ten percent (10%) goal for participation by minority businesses in the total value of the work; provided, however, a local government unit may apply a different verifiable goal that was adopted prior to December 1, 2001, if the local government unit had and continues to have a sufficiently strong basis in evidence to justify the use of that goal. On State building projects and building projects subject to the State goal requirement, the Secretary shall identify the appropriate percentage goal, based on adequate data, for each category of minority business as defined in G.S. 143‑128.2(g)(1) based on the specific contract type.
Except as otherwise provided for in this subsection, each city, county, or other local public entity shall adopt, after a notice and public hearing, an appropriate verifiable percentage goal for participation by minority businesses in the total value of work for building projects.
Each entity required to have verifiable percentage goals under this subsection shall make a good faith effort to recruit minority participation in accordance with this section or G.S. 143‑131(b), as applicable.
(b) A public entity shall establish prior to solicitation of bids the good faith efforts that it will take to make it feasible for minority businesses to submit successful bids or proposals for the contracts for building projects. Public entities shall make good faith efforts as set forth in subsection (e) of this section. Public entities shall require contractors to make good faith efforts pursuant to subsection (f) of this section. Each first‑tier subcontractor on a construction management at risk project shall comply with the requirements applicable to contractors under this subsection.
(c) Each bidder, which shall mean first‑tier subcontractor for construction manager at risk projects for purposes of this subsection, on a project bid under any of the methods authorized under G.S. 143‑128(a1) shall identify on its bid the minority businesses that it will use on the project and an affidavit listing the good faith efforts it has made pursuant to subsection (f) of this section and the total dollar value of the bid that will be performed by the minority businesses. A contractor, including a first‑tier subcontractor on a construction manager at risk project, that performs all of the work under a contract with its own workforce may submit an affidavit to that effect in lieu of the affidavit otherwise required under this subsection. The apparent lowest responsible, responsive bidder shall also file the following:
(1) Within the time specified in the bid documents, either:
a. An affidavit that includes a description of the portion of work to be executed by minority businesses, expressed as a percentage of the total contract price, which is equal to or more than the applicable goal. An affidavit under this sub‑subdivision shall give rise to a presumption that the bidder has made the required good faith or effort; or
b. Documentation of its good faith effort to meet the goal. The documentation must include evidence of all good faith efforts that were implemented, including any advertisements, solicitations, and evidence of other specific actions demonstrating recruitment and selection of minority businesses for participation in the contract.
(2) Within 30 days after award of the contract, a list of all identified subcontractors that the contractor will use on the project.
Failure to file a required affidavit or documentation that demonstrates that the contractor made the required good faith effort is grounds for rejection of the bid.
(d) No subcontractor who is identified and listed pursuant to subsection (c) of this section may be replaced with a different subcontractor except:
(1) If the subcontractor's bid is later determined by the contractor or construction manager at risk to be nonresponsible or nonresponsive, or the listed subcontractor refuses to enter into a contract for the complete performance of the bid work, or
(2) With the approval of the public entity for good cause.
Good faith efforts as set forth in G.S. 143‑131(b) shall apply to the selection of a substitute subcontractor. Prior to substituting a subcontractor, the contractor shall identify the substitute subcontractor and inform the public entity of its good faith efforts pursuant to G.S. 143‑131(b).
(e) Before awarding a contract, a public entity shall do the following:
(1) Develop and implement a minority business participation outreach plan to identify minority businesses that can perform public building projects and to implement outreach efforts to encourage minority business participation in these projects to include education, recruitment, and interaction between minority businesses and nonminority businesses.
(2) Attend the scheduled prebid conference.
(3) At least 10 days prior to the scheduled day of bid opening, notify minority businesses that have requested notices from the public entity for public construction or repair work and minority businesses that otherwise indicated to the Office of Historically Underutilized Businesses an interest in the type of work being bid or the potential contracting opportunities listed in the proposal. The notification shall include the following:
a. A description of the work for which the bid is being solicited.
b. The date, time, and location where bids are to be submitted.
c. The name of the individual within the public entity who will be available to answer questions about the project.
d. Where bid documents may be reviewed.
e. Any special requirements that may exist.
(4) Utilize other media, as appropriate, likely to inform potential minority businesses of the bid being sought.
(f) A public entity shall require bidders to undertake the following good faith efforts to the extent required by the Secretary on projects subject to this section. The Secretary shall adopt rules establishing points to be awarded for taking each effort and the minimum number of points required, depending on project size, cost, type, and other factors considered relevant by the Secretary. In establishing the point system, the Secretary may not require a contractor to earn more than fifty (50) points, and the Secretary must assign each of the efforts listed in subdivisions (1) through (10) of this subsection at least 10 points. The public entity may require that additional good faith efforts be taken, as indicated in its bid specifications. Good faith efforts include:
(1) Contacting minority businesses that reasonably could have been expected to submit a quote and that were known to the contractor or available on State or local government maintained lists at least 10 days before the bid or proposal date and notifying them of the nature and scope of the work to be performed.
(2) Making the construction plans, specifications and requirements available for review by prospective minority businesses, or providing these documents to them at least 10 days before the bid or proposals are due.
(3) Breaking down or combining elements of work into economically feasible units to facilitate minority participation.
(4) Working with minority trade, community, or contractor organizations identified by the Office of Historically Underutilized Businesses and included in the bid documents that provide assistance in recruitment of minority businesses.
(5) Attending any prebid meetings scheduled by the public owner.
(6) Providing assistance in getting required bonding or insurance or providing alternatives to bonding or insurance for subcontractors.
(7) Negotiating in good faith with interested minority businesses and not rejecting them as unqualified without sound reasons based on their capabilities. Any rejection of a minority business based on lack of qualification should have the reasons documented in writing.
(8) Providing assistance to an otherwise qualified minority business in need of equipment, loan capital, lines of credit, or joint pay agreements to secure loans, supplies, or letters of credit, including waiving credit that is ordinarily required. Assisting minority businesses in obtaining the same unit pricing with the bidder's suppliers in order to help minority businesses in establishing credit.
(9) Negotiating joint venture and partnership arrangements with minority businesses in order to increase opportunities for minority business participation on a public construction or repair project when possible.
(10) Providing quick pay agreements and policies to enable minority contractors and suppliers to meet cash‑flow demands.
(g) As used in this section:
(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 socially and economically disadvantaged individuals, or in the case of a corporation, in which at least fifty‑one percent (51%) of the stock is owned by one or more minority persons or socially and economically disadvantaged individuals; and
b. Of which the management and daily business operations are controlled by one or more of the minority persons or socially and economically disadvantaged individuals who own it.
(2) The term "minority person" means a person who is a citizen or lawful permanent resident of the United States and who is:
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, or the Pacific Islands;
d. American Indian, that is, a person having origins in any of the original Indian peoples of North America; or
e. Female.
(3) The term "socially and economically disadvantaged individual" means the same as defined in 15 U.S.C. 637.
(h) The State, counties, municipalities, and all other public bodies shall award public building contracts, including those awarded under G.S. 143‑128.1, 143‑129, and 143‑131, without regard to race, religion, color, creed, national origin, sex, age, or handicapping condition, as defined in G.S. 168A‑3. Nothing in this section shall be construed to require contractors or awarding authorities to award contracts or subcontracts to or to make purchases of materials or equipment from minority‑business contractors or minority‑business subcontractors who do not submit the lowest responsible, responsive bid or bids.
(i) Notwithstanding G.S. 132‑3 and G.S. 121‑5, all public records created pursuant to this section shall be maintained by the public entity for a period of not less than three years from the date of the completion of the building project.
(j) Except as provided in subsections (a), (g), (h) and (i) of this section, this section shall only apply to building projects costing three hundred thousand dollars ($300,000) or more. This section shall not apply to the purchase and erection of prefabricated or relocatable buildings or portions thereof, except that portion of the work which must be performed at the construction site. (2001‑496, s. 3.1.)
§ 143‑128.3. Minority business participation administration.
(a) All public entities subject to G.S. 143‑128.2 shall report to the Department of Administration, Office of Historically Underutilized Business, the following with respect to each building project:
(1) The verifiable percentage goal.
(2) The type and total dollar value of the project, minority business utilization by minority business category, trade, total dollar value of contracts awarded to each minority group for each project, the applicable good faith effort guidelines or rules used to recruit minority business participation, and good faith documentation accepted by the public entity from the successful bidder.
(3) The utilization of minority businesses under the various construction methods under G.S. 143‑128(a1).
The reports shall be in the format and contain the data prescribed by the Secretary of Administration. The University of North Carolina and the State Board of Community Colleges shall report quarterly and all other public entities shall report semiannually. The Secretary of the Department of Administration shall make reports every six months to the Joint Legislative Committee on Governmental Operations on information reported pursuant to this subsection.
(b) A public entity that has been notified by the Secretary of its failure to comply with G.S. 143‑128.2 on a project shall develop a plan of compliance that addresses the deficiencies identified by the Secretary. The corrective plan shall apply to the current project or to subsequent projects under G.S. 143‑128, as appropriate, provided that the plan must be implemented, at a minimum, on the current project to the extent feasible. If the public entity, after notification from the Secretary, fails to file a corrective plan, or if the public entity does not implement the corrective plan in accordance with its terms, the Secretary shall require one or both of the following:
(1) That the public entity consult with the Department of Administration, Office of Historically Underutilized Businesses on the development of a new corrective plan, subject to the approval of the Department and the Attorney General. The public entity may designate a representative to appear on its behalf, provided that the representative has managerial responsibility for the construction project.
(2) That the public entity not bid another contract under G.S. 143‑128 without prior review by the Department and the Attorney General of a good faith compliance plan developed pursuant to subdivision (1) of this subsection. The public entity shall be subject to the review and approval of its good faith compliance plan under this subdivision with respect to any projects bid pursuant to G.S. 143‑128 during a period of time determined by the Secretary, not to exceed one year.
A public entity aggrieved by the decision of the Secretary may file a contested case proceeding under Chapter 150B of the General Statutes.
(c) The Secretary shall study and recommend to the General Assembly and other State agencies ways to improve the effectiveness and efficiency of the State capital facilities development, minority business participation program and good faith efforts in utilizing minority businesses as set forth in G.S. 143‑128.2, and other appropriate good faith efforts that may result in the increased utilization of minority businesses.
(d) The Secretary shall appoint an advisory board to develop recommendations to improve the recruitment and utilization of minority businesses. The Secretary, with the input of its advisory board, shall review the State's programs for promoting the recruitment and utilization of minority businesses involved in State capital projects and shall recommend to the General Assembly, the State Construction Office, The University of North Carolina, and the community colleges system changes in the terms and conditions of State laws, rules, and policies that will enhance opportunities for utilization of minority businesses on these projects. The Secretary shall provide guidance to these agencies on identifying types of projects likely to attract increased participation by minority businesses and breaking down or combining elements of work into economically feasible units to facilitate minority business participation.
(e) The Secretary shall adopt rules for State entities, The University of North Carolina, and community colleges and shall adopt guidelines for local government units to implement the provisions of G.S. 143‑128.2.
(e1) Repealed by Session Laws 2007‑392, s. 3, effective October 1, 2007.
(f) The Secretary shall provide the following information to the Attorney General:
(1) Failure by a public entity to report data to the Secretary in accordance with this section.
(2) Upon the request of the Attorney General, any data or other information collected under this section.
(3) False statements knowingly provided in any affidavit or documentation under G.S. 143‑128.2 to the State or other public entity. Public entities shall provide to the Secretary information concerning any false information knowingly provided to the public entity pursuant to G.S. 143‑128.2.
(g) The Secretary shall report findings and recommendations as required under this section to the Joint Legislative Committee on Governmental Operations annually on or before June 1, beginning June 1, 2002. (2001‑496, s. 3.6; 2005‑270, s. 2; 2007‑392, s. 3.)
§ 143‑128.4. Historically underutilized business defined; statewide uniform certification.
(a) As used in this Chapter, the term "historically underutilized business" means a business that meets all of the following conditions:
(1) At least fifty‑one percent (51%) of the business is owned by one or more persons who are members of at least one of the groups set forth in subsection (b) of this section, or in the case of a corporation, at least fifty‑one percent (51%) of the stock is owned by one or more persons who are members of at least one of the groups set forth in subsection (b) of this section.
(2) The management and daily business operations are controlled by one or more owners of the business who are members of at least one of the groups set forth in subsection (b) of this section.
(a1) As used in this Chapter, the term "minority business" means a historically underutilized business.
(b) To qualify as a historically underutilized business under this section, a business must be owned and controlled as set forth in subsection (a) of this section by one or more citizens or lawful permanent residents of the United States who are members of one or more of the following groups:
(1) Black. – A person having origins in any of the black racial groups of Africa.
(2) Hispanic. – A person of Spanish or Portuguese culture having origins in Mexico, South or Central America, or the Caribbean islands, regardless of race.
(3) Asian American. – A person having origins in any of the original peoples of the Far East, Southeast Asia, Asia, Indian continent, or Pacific islands.
(4) American Indian. – A person having origins in any of the original Indian peoples of North America.
(5) Female.
(6) Disabled. – A person with a disability as defined in G.S. 168‑1 or G.S. 168A‑3.
(7) Disadvantaged. – A person who is socially and economically disadvantaged as defined in 15 U.S.C. § 637.
(c) In addition to the powers and duties provided in G.S. 143‑49, the Secretary of Administration shall have the power, authority, and duty to:
(1) Develop and administer a statewide uniform program for: (i) the certification of a historically underutilized business, as defined in this section, for use by State departments, agencies, and institutions, and political subdivisions of the State; and (ii) the creation and maintenance of a database of the businesses certified as historically underutilized businesses.
(2) Adopt rules and procedures for the statewide uniform certification of historically underutilized businesses.
(3) Provide for the certification of all businesses designated as historically underutilized businesses to be used by State departments, agencies, and institutions, and political subdivisions of the State.
(d) The Secretary of Administration shall seek input from State departments, agencies, and institutions, political subdivisions of the State, and any other entity deemed appropriate to determine the qualifications and criteria for statewide uniform certification of historically underutilized businesses.
(e) (Effective July 1, 2009) All State departments, agencies, and institutions, and political subdivisions of the State shall only use historically underutilized businesses listed in the database created in accordance with this section for minority business purposes. (2005‑270, s. 3; 2007‑392, s. 4.)
§ 143‑129. Procedure for letting of public contracts.
(a) Bidding Required. – No construction or repair work requiring the estimated expenditure of public money in an amount equal to or more than five hundred thousand dollars ($500,000) or purchase of apparatus, supplies, materials, or equipment requiring an estimated expenditure of public money in an amount equal to or more than ninety thousand dollars ($90,000) may be performed, nor may any contract be awarded therefor, by any board or governing body of the State, or of any institution of the State government, or of any political subdivision of the State, unless the provisions of this section are complied with; provided that The University of North Carolina and its constituent institutions may award contracts for construction or repair work that requires an estimated expenditure of less than five hundred thousand dollars ($500,000) without complying with the provisions of this section.
For purchases of apparatus, supplies, materials, or equipment, the governing body of any political subdivision of the State may, subject to any restriction as to dollar amount, or other conditions that the governing body elects to impose, delegate to the manager, school superintendent, chief purchasing official, or other employee the authority to award contracts, reject bids, or readvertise to receive bids on behalf of the unit. Any person to whom authority is delegated under this subsection shall comply with the requirements of this Article that would otherwise apply to the governing body.
(b) Advertisement and Letting of Contracts. – Where the contract is to be let by a board or governing body of the State government or of a State institution, proposals shall be invited by advertisement in a newspaper having general circulation in the State of North Carolina. Where the contract is to be let by a political subdivision of the State, proposals shall be invited by advertisement in a newspaper having general circulation in the political subdivision or by electronic means, or both. A decision to advertise solely by electronic means, whether for particular contracts or generally for all contracts that are subject to this Article, shall be approved by the governing board of the political subdivision of the State at a regular meeting of the board.
The advertisements for bidders required by this section shall appear at a time where at least seven full days shall lapse between the date on which the notice appears and the date of the opening of bids. The advertisement shall: (i) state the time and place where plans and specifications of proposed work or a complete description of the apparatus, supplies, materials, or equipment may be had; (ii) state the time and place for opening of the proposals; and (iii) reserve to the board or governing body the right to reject any or all proposals.
Proposals may be rejected for any reason determined by the board or governing body to be in the best interest of the unit. However, the proposal shall not be rejected for the purpose of evading the provisions of this Article. No board or governing body of the State or political subdivision thereof may assume responsibility for construction or purchase contracts, or guarantee the payments of labor or materials therefor except under provisions of this Article.
All proposals shall be opened in public and the board or governing body shall award the contract to the lowest responsible bidder or bidders, taking into consideration quality, performance and the time specified in the proposals for the performance of the contract.
In the event the lowest responsible bids are in excess of the funds available for the project or purchase, the responsible board or governing body is authorized to enter into negotiations with the lowest responsible bidder above mentioned, making reasonable changes in the plans and specifications as may be necessary to bring the contract price within the funds available, and may award a contract to such bidder upon recommendation of the Department of Administration in the case of the State government or of a State institution or agency, or upon recommendation of the responsible commission, council or board in the case of a subdivision of the State, if such bidder will agree to perform the work or provide the apparatus, supplies, materials, or equipment at the negotiated price within the funds available therefor. If a contract cannot be let under the above conditions, the board or governing body is authorized to readvertise, as herein provided, after having made such changes in plans and specifications as may be necessary to bring the cost of the project or purchase within the funds available therefor. The procedure above specified may be repeated if necessary in order to secure an acceptable contract within the funds available therefor.
No proposal for construction or repair work may be considered or accepted by said board or governing body unless at the time of its filing the same shall be accompanied by a deposit with said board or governing body of cash, or a cashier's check, or a certified check on some bank or trust company insured by the Federal Deposit Insurance Corporation in an amount equal to not less than five percent (5%) of the proposal. In lieu of making the cash deposit as above provided, such bidder may file a bid bond executed by a corporate surety licensed under the laws of North Carolina to execute such bonds, conditioned that the surety will upon demand forthwith make payment to the obligee upon said bond if the bidder fails to execute the contract in accordance with the bid bond. This deposit shall be retained if the successful bidder fails to execute the contract within 10 days after the award or fails to give satisfactory surety as required herein.
Bids shall be sealed and the opening of an envelope or package with knowledge that it contains a bid or the disclosure or exhibition of the contents of any bid by anyone without the permission of the bidder prior to the time set for opening in the invitation to bid shall constitute a Class 1 misdemeanor.
(c) Contract Execution and Security. – All contracts to which this section applies shall be executed in writing. The board or governing body shall require the person to whom the award of a contract for construction or repair work is made to furnish bond as required by Article 3 of Chapter 44A; or require a deposit of money, certified check or government securities for the full amount of said contract to secure the faithful performance of the terms of said contract and the payment of all sums due for labor and materials in a manner consistent with Article 3 of Chapter 44A; and the contract shall not be altered except by written agreement of the contractor and the board or governing body. The surety bond or deposit required herein shall be deposited with the board or governing body for which the work is to be performed. When a deposit, other than a surety bond, is made with the board or governing body, the board or governing body assumes all the liabilities, obligations and duties of a surety as provided in Article 3 of Chapter 44A to the extent of said deposit.
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) Use of Unemployment Relief Labor. – Nothing in this section shall operate so as to require any public agency to enter into a contract which will prevent the use of unemployment relief labor paid for in whole or in part by appropriations or funds furnished by the State or federal government.
(e) Exceptions. – The requirements of this Article do not apply to:
(1) The purchase, lease, or other acquisition of any apparatus, supplies, materials, or equipment from: (i) the United States of America or any agency thereof; or (ii) any other government unit or agency thereof within the United States. The Secretary of Administration or the governing board of any political subdivision of the State may designate any officer or employee of the State or political subdivision to enter a bid or bids in its behalf at any sale of apparatus, supplies, materials, equipment, or other property owned by: (i) the United States of America or any agency thereof; or (ii) any other governmental unit or agency thereof within the United States. The Secretary of Administration or the governing board of any political subdivision of the State may authorize the officer or employee to make any partial or down payment or payment in full that may be required by regulations of the governmental unit or agency disposing of the property.
(2) Cases of special emergency involving the health and safety of the people or their property.
(3) Purchases made through a competitive bidding group purchasing program, which is a formally organized program that offers competitively obtained purchasing services at discount prices to two or more public agencies.
(4) Construction or repair work undertaken during the progress of a construction or repair project initially begun pursuant to this section.
(5) Purchase of gasoline, diesel fuel, alcohol fuel, motor oil, fuel oil, or natural gas. These purchases are subject to G.S. 143‑131.
(6) Purchases of apparatus, supplies, materials, or equipment when: (i) performance or price competition for a product are not available; (ii) a needed product is available from only one source of supply; or (iii) standardization or compatibility is the overriding consideration. Notwithstanding any other provision of this section, the governing board of a political subdivision of the State shall approve the purchases listed in the preceding sentence prior to the award of the contract.
In the case of purchases by hospitals, in addition to the other exceptions in this subsection, the provisions of this Article shall not apply when: (i) a particular medical item or prosthetic appliance is needed; (ii) a particular product is ordered by an attending physician for his patients; (iii) additional products are needed to complete an ongoing job or task; (iv) products are purchased for "over‑the‑counter" resale; (v) a particular product is needed or desired for experimental, developmental, or research work; or (vi) equipment is already installed, connected, and in service under a lease or other agreement and the governing body of the hospital determines that the equipment should be purchased. The governing body of a hospital shall keep a record of all purchases made pursuant to this subdivision. These records are subject to public inspection.
(7) Purchases of information technology through contracts established by the State Office of Information Technology Services as provided in G.S. 147‑33.82(b) and G.S. 147‑33.92(b).
(8) Guaranteed energy savings contracts, which are governed by Article 3B of Chapter 143 of the General Statutes.
(9) Purchases from contracts established by the State or any agency of the State, if the contractor is willing to extend to a political subdivision of the State the same or more favorable prices, terms, and conditions as established in the State contract.
(9a) Purchases of apparatus, supplies, materials, or equipment from contracts established by the United States of America or any federal agency, if the contractor is willing to extend to a political subdivision of the State the same or more favorable prices, terms, and conditions as established in the federal contract.
(10) Purchase of used apparatus, supplies, materials, or equipment. For purposes of this subdivision, remanufactured, refabricated or demo apparatus, supplies, materials, or equipment are not included in the exception. A demo item is one that is used for demonstration and is sold by the manufacturer or retailer at a discount.
(11) Contracts by a public entity with a construction manager at risk executed pursuant to G.S. 143‑128.1.
(12) (Repealed effective July 1, 2011) Build‑to‑suit capital leases with a private developer under G.S. 115C‑532.
(f) Repealed by Session Laws 2001‑328, s. 1, effective August 2, 2001.
(g) Waiver of Bidding for Previously Bid Contracts. – When the governing board of any political subdivision of the State, or the person to whom authority has been delegated under subsection (a) of this section, determines that it is in the best interest of the unit, the requirements of this section may be waived for the purchase of apparatus, supplies, materials, or equipment from any person or entity that has, within the previous 12 months, after having completed a public, formal bid process substantially similar to that required by this Article, contracted to furnish the apparatus, supplies, materials, or equipment to:
(1) The United States of America or any federal agency;
(2) The State of North Carolina or any agency or political subdivision of the State; or
(3) Any other state or any agency or political subdivision of that state, if the person or entity is willing to furnish the items at the same or more favorable prices, terms, and conditions as those provided under the contract with the other unit or agency. Notwithstanding any other provision of this section, any purchase made under this subsection shall be approved by the governing body of the purchasing political subdivision of the State at a regularly scheduled meeting of the governing body no fewer than 10 days after publication of notice that a waiver of the bid procedure will be considered in order to contract with a qualified supplier pursuant to this section. Notice may be published in a newspaper having general circulation in the political subdivision or by electronic means, or both. A decision to publish notice solely by electronic means for a particular contract or for all contracts under this subsection shall be approved by the governing board of the political subdivision. Rules issued by the Secretary of Administration pursuant to G.S. 143‑49(6) shall apply with respect to participation in State term contracts.
(h) Transportation Authority Purchases. – Notwithstanding any other provision of this section, any board or governing body of any regional public transportation authority, hereafter referred to as a "RPTA," created pursuant to Article 26 of Chapter 160A of the General Statutes, or a regional transportation authority, hereafter referred to as a "RTA," created pursuant to Article 27 of Chapter 160A of the General Statutes, may approve the entering into of any contract for the purchase, lease, or other acquisition of any apparatus, supplies, materials, or equipment without competitive bidding and without meeting the requirements of subsection (b) of this section if the following procurement by competitive proposal (Request for Proposal) method is followed.
The competitive proposal method of procurement is normally conducted with more than one source submitting an offer or proposal. Either a fixed price or cost reimbursement type contract is awarded. This method of procurement is generally used when conditions are not appropriate for the use of sealed bids. If this procurement method is used, all of the following requirements apply:
(1) Requests for proposals shall be publicized. All evaluation factors shall be identified along with their relative importance.
(2) Proposals shall be solicited from an adequate number of qualified sources.
(3) RPTAs or RTAs shall have a method in place for conducting technical evaluations of proposals received and selecting awardees, with the goal of promoting fairness and competition without requiring strict adherence to specifications or price in determining the most advantageous proposal.
(4) The award may be based upon initial proposals without further discussion or negotiation or, in the discretion of the evaluators, discussions or negotiations may be conducted either with all offerors or with those offerors determined to be within the competitive range, and one or more revised proposals or a best and final offer may be requested of all remaining offerors. The details and deficiencies of an offeror's proposal may not be disclosed to other offerors during any period of negotiation or discussion.
(5) The award shall be made to the responsible firm whose proposal is most advantageous to the RPTA's or the RTA's program with price and other factors considered.
The contents of the proposals shall not be public records until 14 days before the award of the contract.
The board or governing body of the RPTA or the RTA shall, at the regularly scheduled meeting, by formal motion make findings of fact that the procurement by competitive proposal (Request for Proposals) method of procuring the particular apparatus, supplies, materials, or equipment is the most appropriate acquisition method prior to the issuance of the requests for proposals and shall by formal motion certify that the requirements of this subsection have been followed before approving the contract.
Nothing in this subsection subjects a procurement by competitive proposal under this subsection to G.S. 143‑49, 143‑52, or 143‑53.
RPTAs and RTAs may adopt regulations to implement this subsection. (1931, c. 338, s. 1; 1933, c. 50; c. 400, s. 1; 1937, c. 355; 1945, c. 144; 1949, c. 257; 1951, c. 1104, ss. 1, 2; 1953, c. 1268; 1955, c. 1049; 1957, c. 269, s. 3; c. 391; c. 862, ss. 1‑4; 1959, c. 392, s. 1; c. 910, s. 1; 1961, c. 1226; 1965, c. 841, s. 2; 1967, c. 860; 1971, c. 847; 1973, c. 1194, s. 2; 1975, c. 879, s. 46; 1977, c. 619, ss. 1, 2; 1979, c. 182, s. 1; 1979, 2nd Sess., c. 1081; 1981, c. 346, s. 1; c. 754, s. 1; 1985, c. 145, ss. 1, 2; 1987, c. 590; 1987 (Reg. Sess., 1988), c. 1108, ss. 7, 8; 1989, c. 350; 1993, c. 539, s. 1007; 1994, Ex. Sess., c. 24, s. 14(c); 1995, c. 367, s. 6; 1997‑174, ss. 1‑4; 1998‑185, s. 1; 1998‑217, s. 16; 2001‑328, s. 1; 2001‑487, s. 88; 2001‑496, ss. 4, 5; 2005‑227, s. 1; 2006‑232, s. 2; 2007‑94, s. 1; 2007‑322, s. 4; 2007‑446, s. 6.)
§ 143‑129.1. Withdrawal of bid.
A public agency may allow a bidder submitting a bid pursuant to G.S. 143‑129 for construction or repair work or for the purchase of apparatus, supplies, materials, or equipment to withdraw his bid from consideration after the bid opening without forfeiture of his bid security if the price bid was based upon a mistake, which constituted a substantial error, provided the bid was submitted in good faith, and the bidder submits credible evidence that the mistake was clerical in nature as opposed to a judgment error, and was actually due to an unintentional and substantial arithmetic error or an unintentional omission of a substantial quantity of work, labor, apparatus, supplies, materials, equipment, or services made directly in the compilation of the bid, which unintentional arithmetic error or unintentional omission can be clearly shown by objective evidence drawn from inspection of the original work papers, documents or materials used in the preparation of the bid sought to be withdrawn. A request to withdraw a bid must be made in writing to the public agency which invited the proposals for the work prior to the award of the contract, but not later than 72 hours after the opening of bids, or for a longer period as may be specified in the instructions to bidders provided prior to the opening of bids.
If a request to withdraw a bid has been made in accordance with the provisions of this section, action on the remaining bids shall be considered, in accordance with North Carolina G.S. 143‑129, as though said bid had not been received. Notwithstanding the foregoing, such bid shall be deemed to have been received for the purpose of complying with the requirements of G.S. 143‑132. If the work or purchase is relet for bids, under no circumstances may the bidder who has filed a request to withdraw be permitted to rebid the work or purchase.
If a bidder files a request to withdraw his bid, the agency shall promptly hold a hearing thereon. The agency shall give to the withdrawing bidder reasonable notice of the time and place of any such hearing. The bidder, either in person or through counsel, may appear at the hearing and present any additional facts and arguments in support of his request to withdraw his bid. The agency shall issue a written ruling allowing or denying the request to withdraw within five days after the hearing. If the agency finds that the price bid was based upon a mistake of the type described in the first paragraph of this section, then the agency shall issue a ruling permitting the bidder to withdraw without forfeiture of the bidder's security. If the agency finds that the price bid was based upon a mistake not of the type described in the first paragraph of this section, then the agency shall issue a ruling denying the request to withdraw and requiring the forfeiture of the bidder's security. A denial by the agency of the request to withdraw a bid shall have the same effect as if an award had been made to the bidder and a refusal by the bidder to accept had been made, or as if there had been a refusal to enter into the contract, and the bidder's bid deposit or bid bond shall be forfeited.
In the event said ruling denies the request to withdraw the bid, the bidder shall have the right, within 20 days after receipt of said ruling, to contest the matter by the filing of a civil action in any court of competent jurisdiction of the State of North Carolina. The procedure shall be the same as in all civil actions except all issues of law and fact and every other issue shall be tried de novo by the judge without jury; provided that the matter may be referred in the instances and in the manner provided for by North Carolina G.S. 1A‑1, Rule 53, as amended. Notwithstanding the foregoing, if the public agency involved is the Department of Administration, it may follow its normal rules and regulations with respect to contested matters, as opposed to following the administrative procedures set forth herein. If it is finally determined that the bidder did not have the right to withdraw his bid pursuant to the provisions of this section, the bidder's security shall be forfeited. Every bid bond or bid deposit given by a bidder to a public agency pursuant to G.S. 143‑129 shall be conclusively presumed to have been given in accordance with this section, whether or not it be so drawn as to conform to this section. This section shall be conclusively presumed to have been written into every bid bond given pursuant to G.S. 143‑129.
Neither the agency nor any elected or appointed official, employee, representative or agent of such agency shall incur any liability or surcharge, in the absence of fraud or collusion, by permitting the withdrawal of a bid pursuant to the provisions of this section.
No withdrawal of the bid which would result in the award of the contract on another bid of the same bidder, his partner, or to a corporation or business venture owned by or in which he has an interest shall be permitted. No bidder who is permitted to withdraw a bid shall supply any material or labor to, or perform any subcontract or work agreement for, any person to whom a contract or subcontract is awarded in the performance of the contract for which the withdrawn bid was submitted, without the prior written approval of the agency. Whoever violates the provisions of the foregoing sentence shall be guilty of a Class 1 misdemeanor. (1977, c. 617, s. 1; 1993, c. 539, s. 1008; 1994, Ex. Sess., c. 24, s. 14(c); 2001‑328, s. 2.)
§ 143‑129.2. Construction, design, and operation of solid waste management and sludge management facilities.
(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, except that the term "unit of local government" also includes a sanitary district created under Part 2 of Article 2 of Chapter 130A of the General Statutes, an authority created under Article 1 of Chapter 162A of the General Statutes, a metropolitan sewerage district created under Article 5 of Chapter 162A of the General Statutes, and a county water and sewer district created under Article 6 of Chapter 162A of the General Statutes. As used in this section, the term "sludge management facility" means a facility that processes sludge that has been generated by a municipal wastewater treatment plant for final end use or disposal but does not include any component of a wastewater treatment process or facility that generates sludge.
(b) To acknowledge the highly complex and innovative nature of solid waste and sludge management technologies for processing mixed solid waste and sludge generated by water and wastewater treatment facilities, the relatively limited availability of existing and proven proprietary technology involving solid waste and sludge management facilities, the desirability of a single point of responsibility for the development of facilities and the economic and technical utility of contracts for solid waste and sludge management which include in their scope combinations of design, construction, operation, management and maintenance responsibilities over prolonged periods of time and that in some instances it may be beneficial to a unit of local government to award a contract on the basis of factors other than cost alone, including but not limited to facility design, operational experience, system reliability, energy production efficiency, long‑term operational costs, compatibility with source separation and other recycling systems, environmental impact and operational guarantees. Accordingly, and notwithstanding other provisions of this Article or any local law, a contract entered into between a unit of local government and any person pursuant to this section may be awarded in accordance with the following provisions for the award of a contract based upon an evaluation of proposals submitted in response to a request for proposals prepared by or for a unit of local government.
(c) The unit of local government shall require in its request for proposals that each proposal to be submitted shall include all of the following:
(1) Information relating to the experience of the proposer on the basis of which said proposer purports to be qualified to carry out all work required by a proposed contract; the ability of the proposer to secure adequate financing; and proposals for project staffing, implementation of work tasks, and the carrying out of all responsibilities required by a proposed contract.
(2) A proposal clearly identifying and specifying all elements of cost which would become charges to the unit of local government, in whatever form, in return for the fulfillment by the proposer of all tasks and responsibilities established by the request for the proposal for the full lifetime of a proposed contract, including, as appropriate, but not limited to, the cost of planning, design, construction, operation, management and/or maintenance of any facility; provided, that the unit of local government may prescribe the form and content of the proposal and that, in any event, the proposer must submit sufficiently detailed information to permit a fair and equitable evaluation of the proposal.
(3) Any other information as the unit of local government may determine to have a material bearing on its ability to evaluate any proposal in accordance with this section.
(d) Proposals received in response to a request for proposals may be evaluated on the basis of a technical analysis of facility design, operational experience of the technology to be utilized in the proposed facility, system reliability and availability, energy production balance and efficiency, environmental impact and protection, recovery of materials, required staffing level during operation, projection of anticipated revenues from the sale of energy and materials recovered by the facility, net cost to the unit of local government for operation and maintenance of the facility for the duration of time to be established in the request for proposals and upon any other factors and information that the unit of local government determined to have a material bearing on its ability to evaluate any proposal, which factors were set forth in said request for proposal.
(e) The unit of local government may make a contract award to any responsible proposer selected pursuant to this section based upon a determination that the selected proposal is more responsive to the request for proposals and may thereupon negotiate a contract with said proposer for the performance of the services set forth in the request for proposals and the response thereto, the determination shall be deemed to be conclusive. Notwithstanding other provisions of this Article or any local law, a contract may be negotiated and entered into between a unit of local government and any person selected as a responsible proposer hereunder which may provide for, but not be limited to, the following:
(1) A contract, lease, rental, license, permit or other authorization to design, construct, operate and maintain a solid waste or sludge management facility upon such terms and conditions, for such consideration, and for such duration, not to exceed 40 years, as may be agreed upon by the unit of local government and the person.
(2) Payment by the unit of local government of a fee or other charge to the person for acceptance, processing, recycling, management and disposal of solid waste or sludge.
(3) An obligation on the part of a unit of local government to deliver or cause to be delivered to a solid waste or sludge management facility guaranteed quantities of solid wastes or sludge.
(4) The sale, utilization or disposal of any form of energy, recovered material or residue resulting from the operation of any solid waste or sludge management facility.
(f) Except for authorities created pursuant to Article 22 of Chapter 153A of the General Statutes, the construction work for any facility or structure that is ancillary to a solid waste or sludge management facility and that does not involve storage and processing of solid waste or sludge or the separation, extraction, and recovery of useful or marketable forms of energy and materials from solid waste at a solid waste management facility shall be procured through competitive bidding procedures described by G.S. 143‑128 through 143‑129.1. Ancillary facilities include but are not limited to roads, water and sewer lines to the facility limits, transfer stations, scale houses, administration buildings, and residue and bypass disposal sites. (1983, c. 795, ss. 4, 8.1; 2005‑176, s. 1; 2007‑131, s. 3.)
§ 143‑129.3. Exemption of General Assembly from certain purchasing requirements.
(a) The Legislative Services Commission may provide that the provisions of G.S. 143‑129 and Article 3 of this Chapter do not apply to purchases by the General Assembly of data processing and data communications equipment, supplies, and services. Such exemption may vary according to the type or amount of purchase, and may vary as to whether the exemption is from some or all of those statutory provisions.
(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 not governed by this Article but instead are governed by the provisions of that Part; except that guaranteed energy savings contracts are subject to the requirements of G.S. 143‑128.2 and G.S. 143‑135.3. (1993 (Reg. Sess., 1994), c. 775, s. 4; 1995, c. 509, s. 135.2(k); 2001‑496, s. 3.3; 2002‑161, s. 11.)
§ 143‑129.5. Purchases from nonprofit work centers for the blind and severely disabled.
Notwithstanding G.S. 143‑129, a city, county, or other governmental entity subject to this Article may purchase goods and services directly from a nonprofit work center for the blind and severely disabled, as defined in G.S. 143‑48.
The Department of Administration shall report annually to the Joint Legislative Commission on Governmental Operations on its administration of this program. (1995, c. 265, s. 4; 1999‑20, s. 1.)
§ 143‑129.6. Reserved for future codification purposes.
§ 143‑129.7. Purchase with trade‑in of apparatus, supplies, materials, and equipment.
Notwithstanding the provisions of Article 12 of Chapter 160A of the General Statutes, municipalities, counties, and other political subdivisions of the State may include in specifications for the purchase of apparatus, supplies, materials, or equipment an opportunity for bidders to purchase as "trade‑in" specified personal property owned by the municipality, county, or other political subdivision, and the awarding authority may award a contract for both the purchase of the apparatus, supplies, materials, or equipment and the sale of trade‑in property, taking into consideration the amount offered on the trade‑in when applying the criteria for award established in this Article. (1997‑174, s. 7.)
§ 143‑129.8. Purchase of information technology goods and services.
(a) In recognition of the complex and innovative nature of information technology goods and services and of the desirability of a single point of responsibility for contracts that include combinations of purchase of goods, design, installation, training, operation, maintenance, and related services, a political subdivision of the State may contract for information technology, as defined in G.S. 147‑33.81(2), using the procedure set forth in this section, in addition to or instead of any other procedure available under North Carolina law.
(b) Contracts for information technology may be entered into under a request for proposals procedure that satisfies the following minimum requirements:
(1) Notice of the request for proposals shall be given in accordance with G.S. 143‑129(b).
(2) Contracts shall be awarded to the person or entity that submits the best overall proposal as determined by the awarding authority. Factors to be considered in awarding contracts shall be identified in the request for proposals.
(c) The awarding authority may use procurement methods set forth in G.S. 143‑135.9 in developing and evaluating requests for proposals under this section. The awarding authority may negotiate with any proposer in order to obtain a final contract that best meets the needs of the awarding authority. Negotiations allowed under this section shall not alter the contract beyond the scope of the original request for proposals in a manner that: (i) deprives the proposers or potential proposers of a fair opportunity to compete for the contract; and (ii) would have resulted in the award of the contract to a different person or entity if the alterations had been included in the request for proposals.
(d) Proposals submitted under this section shall not be subject to public inspection until a contract is awarded. (2001‑328, s. 3; 2004‑199, s. 36(b); 2004‑203, s. 10.)
§ 143‑129.9. Alternative competitive bidding methods.
(a) A political subdivision of the State may use any of the following methods to obtain competitive bids for the purchase of apparatus, supplies, materials, or equipment as an alternative to the otherwise applicable requirements in this Article:
(1) Reverse auction. – For purposes of this section, "reverse auction" means a real‑time purchasing process in which bidders compete to provide goods at the lowest selling price in an open and interactive environment. The bidders' prices may be revealed during the reverse auction. A reverse auction may be conducted by the political subdivision or by a third party under contract with the political subdivision. A political subdivision may also conduct a reverse auction through the State electronic procurement system, and compliance with the procedures and requirements of the State's reverse auction process satisfies the political subdivision's obligations under this Article.
(2) Electronic bidding. – A political subdivision may receive bids electronically in addition to or instead of paper bids. Procedures for receipt of electronic bids for contracts that are subject to the requirements of G.S. 143‑129 shall be designed to ensure the security, authenticity, and confidentiality of the bids to at least the same extent as is provided for with sealed paper bids.
(b) The requirements for advertisement of bidding opportunities, timeliness of the receipt of bids, the standard for the award of contracts, and all other requirements in this Article that are not inconsistent with the methods authorized in this section shall apply to contracts awarded under this section.
(c) Reverse auctions shall not be utilized for the purchase or acquisition of construction aggregates, including, but not limited to, crushed stone, sand, and gravel. (2002‑107, s. 1.)
§ 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 counties, cities, towns and other subdivisions may let contracts on informal bids.
(a) All contracts for construction or repair work or for the purchase of apparatus, supplies, materials, or equipment, involving the expenditure of public money in the amount of thirty thousand dollars ($30,000) or more, but less than the limits prescribed in G.S. 143‑129, made by any officer, department, board, local school administrative unit, or commission of any county, city, town, or other subdivision of this State shall be made after informal bids have been secured. All such contracts shall be awarded to the lowest responsible, responsive bidder, taking into consideration quality, performance, and the time specified in the bids for the performance of the contract. It shall be the duty of any officer, department, board, local school administrative unit, or commission entering into such contract to keep a record of all bids submitted, and such record shall not be subject to public inspection until the contract has been awarded.
(b) All public entities shall solicit minority participation in contracts for the erection, construction, alteration or repair of any building awarded pursuant to this section. The public entity shall maintain a record of contractors solicited and shall document efforts to recruit minority business participation in those contracts. Nothing in this section shall be construed to require formal advertisement of bids. All data, including the type of project, total dollar value of the project, dollar value of minority business participation on each project, and documentation of efforts to recruit minority participation shall be reported to the Department of Administration, Office for Historically Underutilized Business, upon the completion of the project. (1931, c. 338, s. 2; 1957, c. 862, s. 5; 1959, c. 406; 1963, c. 172; 1967, c. 860; 1971, c. 593; 1981, c. 719, s. 1; 1987 (Reg. Sess., 1988), c. 1108, s. 6; 1997‑174, s. 5; 2001‑496, s. 5.1; 2005‑227, s. 2.)
§ 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(d1) each single‑prime bid shall constitute a competitive bid in each of the four subdivisions or branches of work listed in G.S. 143‑128(a), and each full set of separate‑prime bids shall constitute a competitive single‑prime bid in meeting the requirements of subsection (a) of this section. If there are at least three single‑prime bids but there is not at least one full set of separate‑prime bids, no separate‑prime bids shall be opened.
(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 150B 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. 1, 7; 2001‑496, s. 9.)
§ 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 Correction except in the construction of roads, bridges and their approaches; provided however, that whenever the Director of the Budget determines that the repair or construction of a building by the Department of Transportation or by the Department of 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. 136‑28.1, the balance due prime contractors shall be paid in full within 45 days after respective prime contracts of the project have been accepted by the owner, certified by the architect, engineer or designer to be completed in accordance with terms of the plans and specifications, or occupied by the owner and used for the purpose for which the project was constructed, whichever occurs first. However, when the architect or consulting engineer in charge of the project determines that delay in completion of the project in accordance with terms of the plans and specifications is the fault of the contractor, the project may be occupied and used for the purposes for which it was constructed without payment of any interest on amounts withheld past the 45 day limit.
No payment shall be delayed because of the failure of another prime contractor on the project to complete his contract. Should final payment to any prime contractor beyond the date the contracts have been certified to be completed by the designer or architect, accepted by the owner, or occupied by the owner and used for the purposes for which the project was constructed, be delayed by more than 45 days, the prime contractor shall be paid interest, beginning on the 46th day, at the rate of one percent (1%) per month or fraction thereof unless a lower rate is agreed upon on the unpaid balance as may be due. In addition to the above final payment provisions, periodic payments due a prime contractor during construction shall be paid in accordance with the provisions of this section and the payment provisions of the contract documents that do not conflict with this section, or the prime contractor shall be paid interest on any unpaid amount at the rate stipulated above for delayed final payments. The interest shall begin on the date the payment is due and continue until the date on which payment is made. The due date may be established by the terms of the contract. Funds for payment of the interest on state‑owned projects shall be obtained from the current budget of the owning department, institution, or agency. Where a conditional acceptance of a contract exists, and where the owner is retaining a reasonable sum pending correction of the conditions, interest on the reasonable sum shall not apply.
(b) Within seven days of receipt by the prime contractor of each periodic or final payment, the prime contractor shall pay the subcontractor based on work completed or service provided under the subcontract. If any periodic or final payment to the subcontractor is delayed by more than seven days after receipt of periodic or final payment by the prime contractor, the prime contractor shall pay the subcontractor interest, beginning on the eighth day, at the rate of one percent (1%) per month or fraction thereof on the unpaid balance as may be due.
(b1) No retainage on periodic or final payments made by the owner or prime contractor shall be allowed on public construction contracts in which the total project costs are less than one hundred thousand dollars ($100,000). Retainage on periodic or final payments on public construction contracts in which the total project costs are equal to or greater than one hundred thousand dollars ($100,000) is allowed as follows:
(1) The owner shall not retain more than five percent (5%) of any periodic payment due a prime contractor.
(2) When the project is fifty percent (50%) complete, the owner, with written consent of the surety, shall not retain any further retainage from periodic payments due the contractor if the contractor continues to perform satisfactorily and any nonconforming work identified in writing prior to that time by the architect, engineer, or owner has been corrected by the contractor and accepted by the architect, engineer, or owner. If the owner determines the contractor's performance is unsatisfactory, the owner may reinstate retainage for each subsequent periodic payment application as authorized in this subsection up to the maximum amount of five percent (5%). The project shall be deemed fifty percent (50%) complete when the contractor's gross project invoices, excluding the value of materials stored off‑site, equal or exceed fifty percent (50%) of the value of the contract, except the value of materials stored on‑site shall not exceed twenty percent (20%) of the contractor's gross project invoices for the purpose of determining whether the project is fifty percent (50%) complete.
(3) A subcontract on a contract governed by this section may include a provision for the retainage on periodic payments made by the prime contractor to the subcontractor. However, the percentage of the payment retained: (i) shall be paid to the subcontractor under the same terms and conditions as provided in subdivision (2) of this subsection and (ii) subject to subsection (b3) of this section, shall not exceed the percentage of retainage on payments made by the owner to the prime contractor. Subject to subsection (b3) of this section, any percentage of retainage on payments made by the prime contractor to the subcontractor that exceeds the percentage of retainage on payments made by the owner to the prime contractor shall be subject to interest to be paid by the prime contractor to the subcontractor at the rate of one percent (1%) per month or fraction thereof.
(4) Within 60 days after the submission of a pay request and one of the following occurs, as specified in the contract documents, the owner with written consent of the surety shall release to the contractor all retainage on payments held by the owner: (i) the owner receives a certificate of substantial completion from the architect, engineer, or designer in charge of the project; or (ii) the owner receives beneficial occupancy or use of the project. However, the owner may retain sufficient funds to secure completion of the project or corrections on any work. If the owner retains funds, the amount retained shall not exceed two and one‑half times the estimated value of the work to be completed or corrected. Any reduction in the amount of the retainage on payments shall be with the consent of the contractor's surety.
(5) The existence of any third‑party claims against the contractor or any additive change orders to the construction contract shall not be a basis for delaying the release of any retainage on payments.
(b2) Full payment, less authorized deductions, shall also be made for those trades that have reached one hundred percent (100%) completion of their contract by or before the project is fifty percent (50%) complete if the contractor has performed satisfactorily. However, payment to the early finishing trades is contingent upon the owner's receipt of an approval or certification from the architect of record or applicable engineer that the work performed by the subcontractor is acceptable and in accordance with the contract documents. At that time, the owner shall reduce the retainage for such trades to five‑tenths percent (0.5%) of the contract. Payments under this subsection shall be made no later than 60 days following receipt of the subcontractor's request or immediately upon receipt of the surety's consent, whichever occurs later. Early finishing trades under this subsection shall include structural steel, piling, caisson, and demolition. The early finishing trades for which line‑item release of retained funds is required shall not be construed to prevent an owner or an owner's representative from identifying any other trades not listed in this subsection that are also allowed line‑item release of retained funds. Should the owner or owner's representative identify any other trades to be afforded line‑item release of retainage, the trade shall be listed in the original bid documents. Each bid document shall list the inspections required by the owner before accepting the work, and any financial information required by the owner to release payment to the trades, except the failure of the bid documents to contain this information shall not obligate the owner to release the retainage if it has not received the required certification from the architect of record or applicable engineer.
(b3) Notwithstanding subdivisions (2) and (3) of subsection (b1) of this section, and subsection (b2) of this section, following fifty percent (50%) completion of the project, the owner shall be authorized to withhold additional retainage from a subsequent periodic payment, not to exceed five percent (5%) as set forth in subdivision (1) of subsection (b1) of this section, in order to allow the owner to retain two and one‑half percent (2.5%) total retainage through the completion of the project. In the event that the owner elects to withhold additional retainage on any periodic payment subsequent to release of retainage pursuant to subsection (b2) of this section, the general contractor may also withhold from the subcontractors remaining on the project sufficient retainage to offset the additional retainage held by the owner, notwithstanding the actual percentage of retainage withheld by the owner of the project as a whole.
(b4) Neither the owner's nor contractor's release of retainage on payments as part of a payment in full on a line‑item of work under subsection (b2) of this section shall affect any applicable warranties on work done by the contractor or subcontractor, and the warranties shall not begin to run any earlier than either the owner's receipt of a certificate of substantial completion from the architect, engineer, or designer in charge of the project or the owner receives beneficial occupancy.
(b5) The State or any political subdivision of the State may allow contractors to bid on bonded projects with and without retainage on payments.
(b6) Nothing in subsections (b1), (b2), (b3), and (b4) of this section shall operate to prevent any agency or any political subdivision of the State from complying with the requirements of a federal contract or grant when the requirements of the federal contract or grant conflict with subsections (b1), (b2), (b3), or (b4) of this section. Each bid document must specify when federal preemption of this section shall apply.
(c) Repealed by Session Laws 2007‑365, s. 1, effective January 1, 2008.
(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.
(e) Nothing in this section shall prevent the owner from withholding payment to the contractor in addition to the amounts authorized by this section for unsatisfactory job progress, defective construction not remedied, disputed work, or third‑party claims filed against the owner or reasonable evidence that a third‑party claim will be filed. (1959, c. 1328; 1967, c. 860; 1979, c. 778; 1983, c. 804, ss. 1, 2; 2007‑365, s. 1.)
§ 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 contractor for the costs and damages incurred by a subcontractor, unless the subcontractor submits proof to the court that the contractor has paid these costs and damages to the subcontractor. (1997‑489, s. 1.)
§ 143‑134.3. No damage for delay clause.
No contractual language forbidding or limiting compensable damages for delays caused solely by the owner or its agent may be enforced in any construction contract let by any board or governing body of the State, or of any institution of State government, or of any county, city, town, or other political subdivision thereof. For purposes of this section, the phrase "owner or its agent" does not include prime contractors or their subcontractors. (1997‑489, s. 1.)
§ 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 agents using force account qualified labor on the permanent payroll of the agency concerned and (ii) when either the total cost of the project, including without limitation all direct and indirect costs of labor, services, materials, supplies and equipment, does not exceed one hundred twenty‑five thousand dollars ($125,000) or the total cost of labor on the project does not exceed fifty thousand dollars ($50,000); provided that, for The University of North Carolina and its constituent institutions, force account qualified labor may be used (i) when the work is performed by duly elected officers or agents using force account qualified labor on the permanent payroll of the university and (ii) when either the total cost of the project, including, without limitation, all direct and indirect costs of labor, services, materials, supplies, and equipment, does not exceed two hundred thousand dollars ($200,000) or the total cost of labor on the project does not exceed one hundred thousand dollars ($100,000). 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 of labor, services, materials, supplies and equipment performed and furnished in the prosecution and completion thereof, shall be maintained by such agency, commission, council or board for the inspection by the general public. Construction or repair work undertaken pursuant to this section shall not be divided for the purposes of evading the provisions of this Article. (1933, c. 552, ss. 1, 2; 1949, c. 1137, s. 2; 1951, c. 1104, s. 6; 1967, c. 860; 1975, c. 292, ss. 1, 2; c. 879, s. 46; 1979, 2nd Sess., c. 1248; 1981, c. 860, s. 13; 1995, c. 274, s. 1; 2007‑322, s. 5.)
§ 143‑135.1. 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 such construction by the State of North Carolina. County and municipal authorities may inspect any plans or specifications upon their request to the Department of Administration or, with respect to projects under G.S. 116‑31.11, The University of North Carolina, and any and all recommendations made by them shall be given consideration. Requests by county and municipal authorities to inspect plans and specifications for State projects shall be on the basis of a specific project. Should any agency or institution of the State require the services of county or municipal authorities, notice shall be given for the need of such services, and appropriate fees for such services shall be paid to the county or municipality; provided, however, that the application for such services to be rendered by any county or municipality shall have prior written approval of the Department of Administration, or with respect to projects under G.S. 116‑31.11, The University of North Carolina.
(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. 1104, s. 4; 1967, c. 860; 1971, c. 563; 1985, c. 757, s. 170(a); 1997‑412, s. 10; 2001‑496, s. 8(c); 2005‑300, s. 1.)
§ 143‑135.2. Contracts for restoration of historic buildings with private donations.
This Article shall not apply to building contracts let by a State agency for restoration of a historic building or structure where the funds for the restoration of such building or structure are provided entirely by funds donated from private sources. (1955, c. 27; 1967, c. 860.)
§ 143‑135.3. 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, docks, wharves, dams, drainage canals, telephone lines, streets, site preparation, parking areas and other types of construction on which the Department of Administration or The University of North Carolina enters into contracts.
"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 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 of receiving 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 shall be commenced within 60 days of receiving the Director's written statement of the decision.
(c1) 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 of receiving 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 of receipt 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; 1969, c. 950, s. 1; 1973, c. 1423; 1975, c. 879, s. 46; 1981, c. 577; 1983, c. 761, s. 190; 1985, c. 746, s. 18; 1987, c. 847, s. 4; 1989, c. 40, s. 1; 1991, c. 103, s. 1; 1997‑412, s. 7; 2001‑496, s. 8(c); 2005‑300, s. 1.)
§ 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.
(a) It is the policy of this State to encourage and promote the use of small, minority, physically handicapped and women contractors in State construction projects. All State agencies, institutions and political subdivisions shall cooperate with the Department of Administration and all other State agencies, institutions and political subdivisions in efforts to encourage and promote the use of small, minority, physically handicapped and women contractors in achieving the purpose of this Article, which is the effective and economical construction of public buildings.
(b) It is the policy of this State not to accept bids or proposals from, nor to engage in business with, any business that, within the last two years, has been finally found by a court or an administrative agency of competent jurisdiction to have unlawfully discriminated on the basis of race, gender, religion, national origin, age, physical disability, or any other unlawful basis in its solicitation, selection, hiring, or treatment of another business. (1983, c. 692, s. 1; 2001‑496, s. 5.2.)
§ 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 same 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 of receipt 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 150B 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:
(1) "Community college" has the same meaning as in G.S. 115D‑2(2).
(2) "Contract for construction or repair work" has the same meaning as in G.S. 143‑135.3(a).
(3) "Contractor" means any person, firm, association, or corporation which has contracted for architectural, engineering, or other professional services in connection with construction or repair work, as well as those persons who have contracted to perform the construction or repair work.
(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 8B of this Chapter, shall require the contractor to designate a responsible person as safety officer to inspect the project site for unsafe health and safety hazards, to report these hazards to the contractor for correction, and to provide other safety and health measures on the project site as required by the terms and conditions of the contract. (1991 (Reg. Sess., 1992), c. 893, s. 3.)
§ 143‑135.8. Prequalification.
Bidders may be 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 trade‑off between price and performance, where quality is considered an integral performance factor. The award decision is made based on multiple factors, including: total cost of ownership, meaning the cost of acquiring, operating, maintaining, and supporting a product or service over its projected lifetime; the evaluated technical merit of the vendor's proposal; the vendor's past performance; and the evaluated probability of performing the requirements stated in the solicitation on time, with high quality, and in a manner that accomplishes the stated business objectives and maintains industry standards compliance.
(2) "Government‑Vendor Partnership" 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, office systems, 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 8A.
Board of State Contract Appeals.
§§ 143‑135.10 through 143‑135.24: Repealed by Session Laws 1987, c. 847, s. 5.
Article 8B.
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 AGC (Associated General Contractors), appointed by the General Assembly upon the recommendation of the Speaker of the House of Representatives in accordance with G.S. 120‑121.
(4) A licensed electrical contractor whose primary business is or was in the installation of electrical systems for buildings, chosen from among not more than three persons nominated by the North Carolina Association of Electrical Contractors, and the Carolinas Electrical Contractors' Association, appointed by the Governor.
(5) A public member appointed by the 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 University of North Carolina, appointed by the Governor.
(8) A public member who is knowledgeable in the building construction or building maintenance area, appointed by the General Assembly upon the recommendation of the President Pro Tempore of the Senate in accordance with G.S. 120‑121.
(9) A representative of local government, chosen from among not more than two persons nominated by the North Carolina Association of County Commissioners and two persons nominated by the North Carolina League of Municipalities, appointed by the General Assembly upon recommendation of the Speaker of the House of Representatives in accordance with G.S. 120‑121.
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 women 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 receive per diem of one hundred dollars ($100.00) a day when the Commission meets and shall be reimbursed for travel and subsistence as provided in G.S. 138‑5. Members who are State officers or employees shall be reimbursed for travel and subsistence as provided in G.S. 138‑6. (1987, c. 71, s. 1; 1989, c. 42; 1991, c. 314, s. 1; 1991 (Reg. Sess., 1992), c. 893, s. 2; 1995, c. 367, s. 9; c. 490, s. 52; 1997‑495, s. 85.1.)
§ 143‑135.26. Powers and duties of the Commission.
The State Building Commission shall have the following powers and duties with regard to the State's capital facilities development and management program:
(1) To adopt rules establishing standard procedures and criteria to assure that the designer selected for each State capital improvement project, the consultant selected for planning and studies of an architectural and engineering nature associated with a capital improvement project or a future capital improvement project and a construction manager at risk selected for each capital improvement project has the qualifications and experience necessary for that capital improvement project or the proposed planning or study project. The rules shall provide that the State Building Commission, after consulting with the funded agency, is responsible and accountable for the final selection of the designer, consultant or construction manager at risk except when the General Assembly or The University of North Carolina is the funded agency. When the General Assembly is the funded agency, the Legislative Services Commission is responsible and accountable for the final selection of the designer, consultant, or the construction manager at risk and when the University is the funded agency, it shall be subject to the rules adopted hereunder, except it is responsible and accountable for the final selection of the designer, consultant, or construction manager at risk. All designers and consultants shall be selected within 60 days of the date funds are appropriated for a project by the General Assembly or the date of project authorization by the Director of the Budget; provided, however, the State Building Commission may grant an exception to this requirement upon written request of the funded agency if (i) no site was selected for the project before the funds were appropriated or (ii) funds were appropriated for advance planning only; provided, further, the Director of the Budget, after consultation with the State Construction Office, may waive the 60‑day requirement for the purpose of minimizing project costs through increased competition and improvements in the market availability of qualified contractors to bid on State capital improvement projects. The Director of the Budget also may, after consultation with the State Construction Office, schedule the availability of design and construction funds for capital improvement projects for the purpose of minimizing project costs through increased competition and improvements in the market availability of qualified contractors to bid on State capital improvement projects.
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 and community college buildings, as defined in subdivision (4) of this section. The rules shall provide for a specific time frame for plan review and approval and permit issuance by each agency, consistent with applicable laws. The time frames shall be established to provide for expeditious review, approval, and permitting of State capital improvement projects and community college buildings. To further expedite the plan review, approval, and permit process, the State Building Commission shall develop a standard memorandum of understanding to be executed by the funded agency and all reviewing agencies for each State capital improvement project. The memorandum of understanding, at minimum, shall include provisions for establishing:
a. The type and frequency of plan reviews.
b. The submittal dates for each plan review.
c. The estimated plan review time for each review and reviewing agency.
d. A schedule of meeting dates.
(2a) To adopt rules exempting specified types of State capital improvement projects, including community college buildings as defined in subdivision (4) of this section, from plan review.
(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 Commission may appoint an advisory board to assist or advise it in its work.
(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) To authorize a State agency, a local governmental unit, or any other entity subject to the provisions of G.S. 143‑129 to use a method of contracting not authorized under G.S. 143‑128. An authorization under this subdivision for an alternative contracting method shall be granted only under the following conditions:
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.
b1. The entity includes in its bid or proposal requirements that the contractor will file a plan for making a good faith effort to reach the minority participation goal set out in G.S. 143‑128.2.
c. The authorization must be approved by a majority of the members of the Commission present and voting.
The Commission shall not waive the requirements of G.S. 143‑129 or G.S. 143‑132 for public contracts unless otherwise authorized by law.
(10) To adopt rules governing review and final approval of plans that are submitted to the State Construction Office pursuant to G.S. 58‑31‑40. The rules shall provide for the manner of submission of the plan by the owner, the type of structural work that may be completed by the owner pursuant to G.S. 58‑31‑40(c), and the expeditious review or completion of review of the plan in a manner that ensures that the building will meet the fire safety requirements of G.S. 58‑31‑40(b).
(11) To develop dispute resolution procedures, including mediation, for subcontractors under any of the construction methods authorized under G.S. 143‑128(a1) on State capital improvement projects, including building projects of The University of North Carolina, and community college buildings as defined in subdivision (4) of this section, for use by any public entity that has not developed its own dispute resolution process.
(12) To adopt rules governing the use of open‑end design agreements for State capital improvement projects and community college buildings as defined in subdivision (4) of this section, where the expenditure of public money does not exceed the amount specified in G.S. 143‑64.34(b) or (c).
(13) To submit an annual report of its activities to the Governor and the Joint Legislative Commission on Governmental Operations. (1987, c. 71, s. 1; c. 721, s. 2; c. 830, s. 79(a); 1989, c. 50; 1989 (Reg. Sess., 1990), c. 889; 1991 (Reg. Sess., 1992), c. 893, s. 1; 1993, c. 561, s. 29; 1995, c. 367, s. 10; 1996, 2nd Ex. Sess., c. 18, s. 10.1; 2001‑496, s. 11; 2005‑370, s. 2; 2007‑446, s. 4.)
§ 143‑135.27. (Effective until October 1, 2011) Definition of capital improvement project.
As used in this Article, "State capital improvement project" means the construction of and any alteration, renovation, or addition to State buildings, as defined in G.S. 143‑336, for which State funds, as defined in G.S. 143C‑1‑1, are used and which is required by G.S. 143‑129 to be publicly advertised. "State capital improvement project" does not include a performance‑based cleanup of environmental damage resulting from the discharge or release of a petroleum product from an underground storage tank pursuant to G.S. 143‑215.94B(f) and G.S. 143‑215.94D(f). (1987, c. 71, s. 1; 2001‑442, s. 4; 2006‑203, s. 87; 2008‑195, s. 11.)
§ 143‑135.27. (Effective October 1, 2011) Definition of capital improvement project.
As used in this Article, "State capital improvement project" means the construction of and any alteration, renovation, or addition to State buildings, as defined in G.S. 143‑336, for which State funds, as defined in G.S. 143C‑1‑1, are used and which is required by G.S. 143‑129 to be publicly advertised. (1987, c. 71, s. 1; 2001‑442, s. 4; 2006‑203, s. 87; 2008‑195, s. 11.)
§ 143‑135.28. Conflict of interest.
If any member of the Commission shall be interested either directly or indirectly, or shall be an officer or employee of or have an ownership interest in any firm or corporation interested directly or indirectly, in any contract authorized by the Commission, that interest shall be disclosed to the Commission and set forth in the minutes of the Commission, and the member having the interest may not participate on behalf of the Commission in the authorization of that contract. (1987, c. 71, s. 1.)
Article 8C.
Performance Standards for Sustainable, Energy‑Efficient Public Buildings.
§ 143‑135.35. Findings; legislative intent.
The General Assembly finds that public buildings can be built and renovated using sustainable, energy‑efficient methods that save money, reduce negative environmental impacts, improve employee and student performance, and make employees and students more productive. The main objectives of sustainable, energy‑efficient design are to avoid resource depletion of energy, water, and raw materials; prevent environmental degradation caused by facilities and infrastructure throughout their life cycle; and create buildings that are livable, comfortable, safe, and productive. It is the intent of the General Assembly that State‑owned buildings and buildings of The University of North Carolina and the North Carolina Community College System be improved by establishing specific performance standards for sustainable, energy‑efficient public buildings. These performance standards should be based upon recognized, consensus standards that are supported by science and have a demonstrated performance record. The General Assembly also intends, in order to ensure that the economic and environmental objectives of this Article are achieved, that State agencies, The University of North Carolina, and the North Carolina Community College System determine whether the performance standards are met for major facility construction and renovation projects, measure utility and maintenance costs, and verify whether these standards result in savings. Also, it is the intent of the General Assembly to establish a priority to use North Carolina‑based resources, building materials, products, industries, manufacturers, and businesses to provide economic development to North Carolina and to meet the objectives of this Article. (2008‑203, s. 1.)
§ 143‑135.36. Definitions.
As used in this section, the following definitions apply unless the context requires otherwise:
(1) "ASHRAE" means the American Society of Heating, Refrigerating and Air‑Conditioning Engineers, Inc.
(2) "Commission" means to document and to verify throughout the construction process whether the performance of a building, a component of a building, a system of a building, or a component of a building system meets specified objectives, criteria, and agency project requirements.
(3) "Department" means the Department of Administration.
(4) "Institutions of higher education" means the constituent institutions of The University of North Carolina, the regional institutions as defined in G.S. 115D‑2, and the community colleges as defined in G.S. 115D‑2.
(5) "Major facility construction project" means a project to construct a building larger than 20,000 gross square feet of occupied or conditioned space, as defined in the North Carolina State Building Code adopted under Article 9 of Chapter 143 of the General Statutes. "Major facility construction project" does not include a project to construct a transmitter building or a pumping station.
(6) "Major facility renovation project" means a project to renovate a building when the cost of the project is greater than fifty percent (50%) of the insurance value of the building prior to the renovation and the renovated portion of the building is larger than 20,000 gross square feet of occupied or conditioned space, as defined in the North Carolina State Building Code. "Major facility renovation project" does not include a project to renovate a transmitter building or a pumping station. "Major facility renovation project" does not include a project to renovate a building having historic, architectural, or cultural significance under Part 4 of Article 2 of Chapter 143B of the General Statutes.
(7) "Public agency" means every State office, officer, board, department, and commission and institutions of higher education. (2008‑203, s. 1.)
§ 143‑135.37. Energy and water use standards for public major facility construction and renovation projects; verification and reporting of energy and water use.
(a) Program Established. – The Sustainable Energy‑Efficient Buildings Program is established within the Department to be administered by the Department. This program applies to any major facility construction or renovation project of a public agency that is funded in whole or in part from an appropriation in the State capital budget or through a financing contract as defined in G.S. 142‑82.
(b) Energy‑Efficiency Standard. – For every major facility construction project of a public agency, the building shall be designed and constructed so that the calculated energy consumption is at least thirty percent (30%) less than the energy consumption for the same building as calculated using the energy‑efficiency standard in ASHRAE 90.1‑2004. For every major facility renovation project of a public agency, the renovated building shall be designed and constructed so that the calculated energy consumption is at least twenty percent (20%) less than the energy consumption for the same renovated building as calculated using the energy‑efficiency standard in ASHRAE 90.1‑2004. For the purposes of this subsection, any exception or special standard for a specific type of building found in ASHRAE 90.1‑2004 is included in the ASHRAE 90.1‑2004 standard.
(c) Water Use Standard. – For every major facility construction or renovation project of a public agency, the water system shall be designed and constructed so that the calculated indoor potable water use is at least twenty percent (20%) less than the indoor potable water use for the same building as calculated using the fixture performance requirements related to plumbing under the 2006 North Carolina State Building Code. For every major facility construction project of a public agency, the water system shall be designed and constructed so that the calculated sum of the outdoor potable water use and the harvested stormwater use is at least fifty percent (50%) less than the sum of the outdoor potable water use and the harvested stormwater use for the same building as calculated using the performance requirements related to plumbing under the 2006 North Carolina State Building Code. For every major facility renovation project of a public agency, the Department shall determine on a project‑by‑project basis what reduced level of outdoor potable use or harvested stormwater use, if any, is a feasible requirement for the project, but the Department shall not require a greater reduction than is required under this subsection for a major facility construction project. To reduce the potable outdoor water use as required under this subsection, landscape materials that are water use efficient and irrigation strategies that include reuse and recycling of the water may be used.
(d) Performance Verification. – In order to be able to verify performance of a building component or an energy or water system component, the construction contract shall include provisions that require each building component and each energy and water system component to be commissioned, and these provisions shall be included at the earliest phase of the construction process as possible and in no case later than the schematic design phase of the project. Such commissioning shall continue through the initial operation of the building. The project design and construction teams and the public agency shall jointly determine what level of commissioning is appropriate for the size and complexity of the building or its energy and water system components.
(e) Separate Utility Meters. – In order to be able to monitor the initial cost and the continuing costs of the energy and water systems, a separate meter for each electricity, natural gas, fuel oil, and water utility shall be installed at each building undergoing a major facility construction or renovation project. Each meter shall be installed in accordance with the United States Department of Energy guidelines issued under section 103 of the Energy Policy Act of 2005 (Pub. L. 109‑58, 119 Stat. 594 (2005)). Starting with the first month of facility operation, the public agency shall compare data obtained from each of these meters by month and by year with the applicable energy‑efficiency standard under subsection (b) of this section and the applicable water use standard for the project under subsection (c) of this section and report annually no later than August 1 of each year to the Office of State Construction within the Department. If the average energy use or the average water use over the initial 12‑month period of facility operation exceeds the applicable energy‑efficiency standard under subsection (b) of this section or exceeds the applicable water use standard under subsection (c) of this section by fifteen percent (15%) or more, the public agency shall investigate the actual energy or water use, determine the cause of the discrepancy, and recommend corrections or modifications to meet the applicable standard. (2008‑203, s. 1.)
§ 143‑135.38. Use of other standard when standard not practicable.
When the Department, public agency, and the design team determine that the energy‑efficiency standard or the water use standard required under G.S. 143‑135.37 is not practicable for a major facility construction or renovation project, then it must be determined by the State Building Commission if the standard is not practicable for the major facility construction or renovation project. If the State Building Commission determines the standard is not practicable for that project, the State Building Commission shall determine which standard is practicable for the design and construction for that major facility construction or renovation project. If a standard required under G.S. 143‑135.37 is not followed for that project, the State Building Commission shall report this information and the reasons to the Department within 90 days of its determination. (2008‑203, s. 1.)
§ 143‑135.39. Guidelines for administering the Sustainable Energy‑Efficient Buildings Program.
(a) Policies and Technical Guidelines. – The Department, in consultation with public agencies, shall develop and issue policies and technical guidelines to implement this Article for public agencies. The purpose of these policies and guidelines is to establish procedures and methods for complying with the energy‑efficiency standard or the water use standard for major facility construction and renovation projects under G.S. 143‑135.37.
(b) Preproposal Conference. – As provided in the request for proposals for construction services, the public agency may hold a preproposal conference for prospective bidders to discuss compliance with, and achievement of, the energy‑efficiency standard or the water use standard required under G.S. 143‑135.37 for prospective respondents.
(c) Advisory Committee. – The Department shall create a sustainable, energy‑efficient buildings advisory committee comprised of representatives from the design and construction industry involved in public works contracting, personnel from the public agencies responsible for overseeing public works projects, and others at the Department's discretion to provide advice on implementing this Article. Among other duties, the advisory committee shall make recommendations regarding the education and training requirements under subsection (d) of this section, make recommendations regarding specific education and training criteria that are appropriate for the various roles with respect to, and levels of involvement in, a major facility construction or renovation project subject to this Article or the roles regarding the operation and maintenance of the facility, and make recommendations regarding developing a process whereby the Department receives ongoing evaluations and feedback to assist the Department in implementing this Article so as to effectuate the purpose of this Article. Further, the advisory committee may make recommendations to the Department regarding whether it is advisable to strengthen standards for energy efficiency or water use under this Article, whether it is advisable and feasible to add additional criteria to achieve greater sustainability in the construction and renovation of public buildings, or whether it is advisable and feasible to expand the scope of this Article to apply to additional types of publicly financed buildings or to smaller facility projects.
(d) Education and Training Requirements. – The Department shall review the advisory committee's recommendations under subsection (c) of this section regarding education and training. For each of the following, the Department shall develop education and training requirements that are consistent with the purpose of this Article and that are appropriate for the various roles with respect to, and level of involvement in, a major facility construction or renovation project or the roles regarding the operation and maintenance of the facility:
(1) The chief financial officers of public agencies.
(2) For each public agency that is responsible for the payment of the agency's utilities, the facility managers of these public agencies.
(3) The capital project coordinators of public agencies.
(4) Architects.
(5) Mechanical design engineers.
(e) Performance Review. – Annually the Department shall conduct a performance review of the Sustainable Energy‑Efficient Buildings Program. The performance review shall include at least all of the following:
(1) Identification of the costs of implementing energy‑efficiency and water use standards in the design and construction of major facility construction and renovation projects subject to this Article.
(2) Identification of operating savings attributable to the implementation of energy‑efficiency and water use standards, including, but not limited to, savings in utility and maintenance costs.
(3) Identification of any impacts on employee productivity from using energy‑efficiency and water use standards.
(4) Evaluation of the effectiveness of the energy‑efficiency and water use standards established by this Article.
(5) Whether stricter standards or additional criteria for sustainable buildings should be used other than the standards under G.S. 143‑135.37.
(6) Whether the Sustainable Energy‑Efficient Buildings Program should be expanded to include additional public agencies, to include additional types of projects, or to include smaller major facility construction or renovation projects.
(7) Any recommendations for any other changes regarding sustainable, energy‑efficient building standards that may be supported by the Department's findings.
(f) Report on Performance Review. – Each year, the Department shall include in its consolidated report under subsection (g) of this section a report of its findings under the performance review under subsection (e) of this section.
(g) Consolidated Report Required. – The Department shall consolidate the report required under subsection (f) of this section, the report under G.S. 143‑135.37(e), the report, if any, from the State Building Commission under G.S. 143‑135.38, and the report under G.S. 143‑135.40 into one report. No later than October 1 of each year, this consolidated report shall be transmitted to the Chairs of the General Government Appropriations Subcommittees of both the Senate and the House of Representatives, the Environmental Review Commission, and the Joint Legislative Commission on Governmental Operations. The Department shall include any recommendations for administrative or legislative proposals that would better fulfill the legislative intent of this Article.
(h) Authority to Adopt Rules or Architectural or Engineering Standards. – The Department may adopt rules to implement this Article. The Department may adopt architectural or engineering standards as needed to implement this Article. (2008‑203, s. 1.)
§ 143‑135.40. Monitor construction standards and sustainable building standards.
(a) The Department shall monitor the development of construction standards and sustainable building standards to determine whether there is any standard that the Department determines would better fulfill the intent of the Sustainable Energy‑Efficient Buildings Program to achieve sustainable, energy‑efficient public buildings than the standards under G.S. 143‑135.37, and, if so, whether this Article should be amended to provide for the use of any different standards or the use of any additional standards to address additional aspects of sustainable, energy‑efficient buildings. Additional standards monitored shall address consideration of site development, material and resource selection, and indoor environmental quality to enhance the health or productivity of building occupants. Also, the Department shall monitor the development of improved energy‑efficiency standards developed by the American Society of Heating, Refrigerating and Air‑Conditioning Engineers, the ASHRAE standards, shall monitor whether the State Building Code Council adopts any other energy‑efficiency standards for inclusion in the State Building Code that result in greater energy efficiency and increased energy savings in major facility construction and renovation projects under this Article, and shall monitor other standards for sustainable, energy‑efficient buildings that are based upon recognized, consensus standards based on science and demonstrated performance.
(b) Each year, the Department shall report the results of its monitoring under this section, including any recommendations for administrative or legislative proposals. (2008‑203, 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 registered 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. Neither the architect nor any of the above named engineers shall be engaged in the manufacture, promotion or sale of any building material, and any member who shall, during his term, cease to meet the qualifications for original appointment (through ceasing to be a practicing member of the profession indicated or otherwise) shall thereby forfeit his membership on the Council. In making new appointments or filling vacancies, the Governor shall ensure that minorities and women are represented on the Council.
The Governor may make appointments to fill the unexpired portions of any terms vacated by reason of death, resignation, or removal from office. In making such appointment, he shall preserve the composition of the Council required above.
(b) Compensation. – Members of the Building Code Council other than any who are employees of the State shall receive seven dollars ($7.00) per day, including necessary time spent in traveling to and from their place of residence within the State to any place of meeting or while traveling on official business of the Council. In addition, all members shall receive mileage and subsistence according to State practice while going to and from any place of meeting, or when on official business of the Council. (1957, c. 1138; 1965, c. 1145; 1969, c. 1229, s. 1; 1971, c. 323; 1979, c. 863; 1989, c. 25, s. 3; 1991 (Reg. Sess., 1992), c. 895, s. 2; 1998‑57, s. 1.)
§ 143‑137. Organization of Council; rules; meetings; staff; fiscal affairs.
(a) First Meeting; Organization; Rules. – Within 30 days after its appointment, the Building Code Council shall meet on call of the Commissioner of Insurance. The Council shall elect from its appointive members a chairman and such other officers as it may choose, for such terms as it may designate in its rules. The Council shall adopt such rules not inconsistent herewith as it may deem necessary for the proper discharge of its duties. The chairman may appoint members to such committees as the work of the Council may require. In addition, the chairman shall establish and appoint ad hoc code revision committees to consider and prepare revisions and amendments to the Code volumes. Each ad hoc committee shall consist of members of the Council, licensed contractors, and design professionals most affected by the Code volume for which the ad hoc committee is responsible, and members of the public. The subcommittees shall meet upon the call of their respective chairs and shall report their recommendations to the Council.
(b) Meetings. – The Council shall meet regularly, at least once every six months, at places and dates to be determined by the Council. Special meetings may be called by the chairman on his own initiative and must be called by him at the request of two or more members of the Council. All members shall be notified by the chairman in writing of the time and place of regular and special meetings at least seven days in advance of such meeting. Seven members shall constitute a quorum. All meetings shall be open to the public.
(c) Staff. – Personnel of the Division of Engineering of the Department of Insurance shall serve as a staff for the Council. Such staff shall have the duties of
(1) Keeping an accurate and complete record of all meetings, hearings, correspondence, laboratory studies, and technical work performed by or for the Council, and making these records available for public inspection at all reasonable times;
(2) Handling correspondence for the Council.
(d) Fiscal Affairs of the Council. – All funds for the operations of the Council and its staff shall be appropriated to the Department of Insurance for the use of the Council. All such funds shall be held in a separate or special account on the books of the Department of Insurance, with a separate financial designation or code number to be assigned by the Department of Administration or its agent. Expenditures for staff salaries and operating expenses shall be made in the same manner as the expenditure of any other Department of Insurance funds. The Department of Insurance may hire such additional personnel as may be necessary to handle the work of the Building Code Council, within the limits of funds appropriated for the Council and with the approval of the Council. (1957, c. 269, s. 1; c. 1138; 1987, c. 827, s. 219; 1987 (Reg. Sess., 1988), c. 975, s. 7; 1997‑26, s. 4.)
§ 143‑138. North Carolina State Building Code.
(a) Preparation and Adoption. – The Building Code Council may prepare and adopt, in accordance with the provisions of this Article, a North Carolina State Building Code. Before the adoption of the Code, or any part of the Code, the Council shall hold at least one public hearing. A notice of the public hearing shall be published in the North Carolina Register at least 15 days before the date of the hearing. Notwithstanding G.S. 150B‑2(8a)h., the North Carolina State Building Code as adopted by the Building Code Council is a rule within the meaning of G.S. 150B‑2(8a) and shall be adopted in accordance with the procedural requirements of Article 2A of Chapter 150B of the General Statutes.
The Council shall request the Office of State Budget and Management to prepare a fiscal note for a proposed Code change that has a substantial economic impact, as defined in G.S. 150B‑21.4(b1), or that increases the cost of residential housing by eighty dollars ($80.00) or more per housing unit. The change can become effective only in accordance with G.S. 143‑138(d). Neither the Department of Insurance nor the Council shall be required to expend any monies to pay for the preparation of any fiscal note under this section by any person outside of the Department or Council unless the Department or Council contracts with a third‑party vendor to prepare the fiscal note.
(b) Contents of the Code. – The North Carolina State Building Code, as adopted by the Building Code Council, may include reasonable and suitable classifications of buildings and structures, both as to use and occupancy; general building restrictions as to location, height, and floor areas; rules for the lighting and ventilation of buildings and structures; requirements concerning means of egress from buildings and structures; requirements concerning means of ingress in buildings and structures; rules governing construction and precautions to be taken during construction; rules as to permissible materials, loads, and stresses; rules governing chimneys, heating appliances, elevators, and other facilities connected with the buildings and structures; rules governing plumbing, heating, air conditioning for the purpose of comfort cooling by the lowering of temperature, and electrical systems; and such other reasonable rules pertaining to the construction of buildings and structures and the installation of particular facilities therein as may be found reasonably necessary for the protection of the occupants of the building or structure, its neighbors, and members of the public at large.
In addition, the Code may regulate activities and conditions in buildings, structures, and premises that pose dangers of fire, explosion, or related hazards. Such fire prevention code provisions shall be considered the minimum standards necessary to preserve and protect public health and safety, subject to approval by the Council of more stringent provisions proposed by a municipality or county as provided in G.S. 143‑138(e). These provisions may include regulations requiring the installation of either battery‑operated or electrical smoke detectors in every dwelling unit used as rental property, regardless of the date of construction of the rental property. For dwelling units used as rental property constructed prior to 1975, smoke detectors shall have an Underwriters' Laboratories, Inc., listing or other equivalent national testing laboratory approval, and shall be installed in accordance with either the standard of the National Fire Protection Association or the minimum protection designated in the manufacturer's instructions, which the property owner shall retain or provide as proof of compliance.
The Code may contain provisions requiring the installation of either battery‑operated or electrical carbon monoxide detectors in every dwelling unit having a fossil‑fuel burning heater or appliance, fireplace, or an attached garage. Carbon monoxide detectors shall be those listed by a nationally recognized testing laboratory that is OSHA‑approved to test and certify to American National Standards Institute/Underwriters Laboratories Standards ANSI/UL2034 or ANSI/UL2075 and shall be installed in accordance with either the standard of the National Fire Protection Association or the minimum protection designated in the manufacturer's instructions, which the property owner shall retain or provide as proof of compliance. A carbon monoxide detector may be combined with smoke detectors if the combined detector does both of the following: (i) complies with ANSI/UL2034 or ANSI/UL2075 for carbon monoxide alarms and ANSI/UL217 for smoke detectors; and (ii) emits an alarm in a manner that clearly differentiates between detecting the presence of carbon monoxide and the presence of smoke.
The Code may contain provisions regulating every type of building or structure, wherever it might be situated in the State.
Provided further, that building rules do not apply to (i) farm buildings that are located outside the building‑rules jurisdiction of any municipality, or (ii) farm buildings that are located inside the building‑rules jurisdiction of any municipality if the farm buildings are greenhouses. A "greenhouse" is a structure that has a glass or plastic roof, has one or more glass or plastic walls, has an area over ninety‑five percent (95%) of which is used to grow or cultivate plants, is built in accordance with the National Greenhouse Manufacturers Association Structural Design manual, and is not used for retail sales. Additional provisions addressing distinct life safety hazards shall be approved by the local building‑rules jurisdiction.
Provided further, that no building permit shall be required under the Code or any local variance thereof approved under subsection (e) for any construction, installation, repair, replacement, or alteration costing five thousand dollars ($5,000) or less in any single family residence or farm building unless the work involves: the addition, repair, or replacement of load bearing structures; the addition (excluding replacement of same size and capacity) or change in the design of plumbing; the addition, replacement or change in the design of heating, air conditioning, or electrical wiring, devices, appliances, or equipment, the use of materials not permitted by the North Carolina Uniform Residential Building Code; or the addition (excluding replacement of like grade of fire resistance) of roofing.
Provided further, that no building permit shall be required under such Code from any State agency for the construction of any building or structure, the total cost of which is less than twenty thousand dollars ($20,000), except public or institutional buildings.
For the information of users thereof, the Code shall include as appendices [the following:]
(1) Any rules governing boilers adopted by the Board of Boiler and Pressure Vessels Rules,
(2) Any rules relating to the safe operation of elevators adopted by the Commissioner of Labor, and
(3) Any rules relating to sanitation adopted by the Commission for Public Health which the Building Code Council believes pertinent.
In addition, the Code may include references to such other rules of special types, such as those of the Medical Care Commission and the Department of Public Instruction as may be useful to persons using the Code. No rule issued by any agency other than the Building Code Council shall be construed as a part of the Code, nor supersede that Code, it being intended that they be presented with the Code for information only.
Nothing in this Article shall extend to or be construed as being applicable to the regulation of the design, construction, location, installation, or operation of (1) equipment for storing, handling, transporting, and utilizing liquefied petroleum gases for fuel purposes or anhydrous ammonia or other liquid fertilizers, except for liquefied petroleum gas from the outlet of the first stage pressure regulator to and including each liquefied petroleum gas utilization device within a building or structure covered by the Code, or (2) equipment or facilities, other than buildings, of a public utility, as defined in G.S. 62‑3, or an electric or telephone membership corporation, including without limitation poles, towers, and other structures supporting electric or communication lines.
Nothing in this Article shall extend to or be construed as being applicable to the regulation of the design, construction, location, installation, or operation of industrial machinery. However, if during the building code inspection process, an electrical inspector has any concerns about the electrical safety of a piece of industrial machinery, the electrical inspector may refer that concern to the Occupational Safety and Health Division in the North Carolina Department of Labor but shall not withhold the certificate of occupancy nor mandate third‑party testing of the industrial machinery based solely on this concern. For the purposes of this paragraph, "industrial machinery" means equipment and machinery used in a system of operations for the explicit purpose of producing a product. The term does not include equipment that is permanently attached to or a component part of a building and related to general building services such as ventilation, heating and cooling, plumbing, fire suppression or prevention, and general electrical transmission.
In addition, the Code may contain rules concerning minimum efficiency requirements for replacement water heaters, which shall consider reasonable availability from manufacturers to meet installation space requirements and may contain rules concerning energy efficiency that require all hot water plumbing pipes that are larger than one‑fourth of an inch to be insulated.
No State, county, or local building code or regulation shall prohibit the use of special locking mechanisms for seclusion rooms in the public schools approved under G.S. 115C‑391.1(e)(1)e., provided that the special locking mechanism shall be constructed so that it will engage only when a key, knob, handle, button, or other similar device is being held in position by a person, and provided further that, if the mechanism is electrically or electronically controlled, it automatically disengages when the building's fire alarm is activated. Upon release of the locking mechanism by a supervising adult, the door must be able to be opened readily.
(c) Standards to Be Followed in Adopting the Code. – All regulations contained in the North Carolina State Building Code shall have a reasonable and substantial connection with the public health, safety, morals, or general welfare, and their provisions shall be construed reasonably to those ends. Requirements of the Code shall conform to good engineering practice. The Council may use as guidance, but is not required to adopt, the requirements of the International Building Code of the International Code Council, the Standard Building Code of the Southern Building Code Congress International, Inc., the Uniform Building Code of the International Conference of Building Officials, the National Building Code of the Building Officials and Code Administrators, Inc., the National Electric Code, the Life Safety Code, the National Fuel Gas Code, the Fire Prevention Code of the National Fire Protection Association, the Safety Code for Elevators and Escalators, and the Boiler and Pressure Vessel Code of the American Society of Mechanical Engineers, and standards promulgated by the American National Standards Institute, Standards Underwriters' Laboratories, Inc., and similar national or international agencies engaged in research concerning strength of materials, safe design, and other factors bearing upon health and safety.
(d) Amendments of the Code. – The Building Code Council may revise and amend the North Carolina State Building Code, either on its own motion or upon application from any citizen, State agency, or political subdivision of the State. In adopting any amendment, the Council shall comply with the same procedural requirements and the same standards set forth above for adoption of the Code.
(e) Effect upon Local Codes. – The North Carolina State Building Code shall apply throughout the State, from the time of its adoption. Approved rules shall become effective in accordance with G.S. 150B‑21.3. However, any political subdivision of the State may adopt a fire prevention code and floodplain management regulations within its jurisdiction. The territorial jurisdiction of any municipality or county for this purpose, unless otherwise specified by the General Assembly, shall be as follows: Municipal jurisdiction shall include all areas within the corporate limits of the municipality and extraterritorial jurisdiction areas established as provided in G.S. 160A‑360 or a local act; county jurisdiction shall include all other areas of the county. No such code or regulations, other than floodplain management regulations and those permitted by G.S. 160A‑436, shall be effective until they have been officially approved by the Building Code Council as providing adequate minimum standards to preserve and protect health and safety, in accordance with the provisions of subsection (c) above. Local floodplain regulations may regulate all types and uses of buildings or structures located in flood hazard areas identified by local, State, and federal agencies, and include provisions governing substantial improvements, substantial damage, cumulative substantial improvements, lowest floor elevation, protection of mechanical and electrical systems, foundation construction, anchorage, acceptable flood resistant materials, and other measures the political subdivision deems necessary considering the characteristics of its flood hazards and vulnerability. In the absence of approval by the Building Code Council, or in the event that approval is withdrawn, local fire prevention codes and regulations shall have no force and effect. Provided any local regulations approved by the local governing body which are found by the Council to be more stringent than the adopted statewide fire prevention code and which are found to regulate only activities and conditions in buildings, structures, and premises that pose dangers of fire, explosion or related hazards, and are not matters in conflict with the State Building Code, shall be approved. Local governments may enforce the fire prevention code of the State Building Code using civil remedies authorized under G.S. 143‑139, 153A‑123, and 160A‑175. If the Commissioner of Insurance or other State official with responsibility for enforcement of the Code institutes a civil action pursuant to G.S. 143‑139, a local government may not institute a civil action under G.S. 143‑139, 153A‑123, or 160A‑175 based upon the same violation. Appeals from the assessment or imposition of such civil remedies shall be as provided in G.S. 160A‑434.
(f) Repealed by Session Laws 1989, c. 681, s. 3.
(g) Publication and Distribution of Code. – The Building Code Council shall cause to be printed, after adoption by the Council, the North Carolina State Building Code and each amendment thereto. It shall, at the State's expense, distribute copies of the Code and each amendment to State and local governmental officials, departments, agencies, and educational institutions, as is set out in the table below. (Those marked by an asterisk will receive copies only on written request to the Council.)
OFFICIAL OR AGENCY NUMBER OF COPIES
State Departments and Officials
Governor.............................................................................................................. 1
Lieutenant Governor.............................................................................................. 1
Auditor................................................................................................................. 1
Treasurer.............................................................................................................. 1
Secretary of State.................................................................................................. 1
Superintendent of Public Instruction....................................................................... 1
Attorney General (Library).................................................................................... 1
Commissioner of Agriculture.................................................................................. 1
Commissioner of Labor......................................................................................... 1
Commissioner of Insurance.................................................................................... 1
Department of Environment and Natural Resources................................................ 1
Department of Health and Human Services............................................................ 1
Office of Juvenile Justice........................................................................................ 1
Board of Transportation........................................................................................ 1
Utilities Commission.............................................................................................. 1
Department of Administration................................................................................ 1
Clerk of the Supreme Court................................................................................... 1
Clerk of the Court of Appeals................................................................................ 1
Department of Cultural Resources [State Library].................................................. 1
Supreme Court Library.......................................................................................... 1
Legislative Library................................................................................................. 1
Office of Administrative Hearings........................................................................... 1
Rules Review Commission..................................................................................... 1
Schools
All state‑supported colleges and universities
in the State of North Carolina.......................................................................... * 1 each
Local Officials
Clerks of the Superior Courts................................................................................ 1 each
Chief Building Inspector of each incorporated
municipality or county...................................................................................... 1
In addition, the Building Code Council shall make additional copies available at such price as it shall deem reasonable to members of the general public. The proceeds from sales of the Building Code shall be credited to the Insurance Regulatory Fund under G.S. 58‑6‑25.
(h) Violations. – Any person who shall be adjudged to have violated this Article or the North Carolina State Building Code, except for violations of occupancy limits established by either, shall be guilty of a Class 3 misdemeanor and shall upon conviction only be liable to a fine, not to exceed fifty dollars ($50.00), for each offense. Each 30 days that such violation continues shall constitute a separate and distinct offense. Violation of occupancy limits established pursuant to the North Carolina State Building Code shall be a Class 3 misdemeanor. Any violation incurred more than one year after another conviction for violation of the occupancy limits shall be treated as a first offense for purposes of establishing and imposing penalties.
(i) Section 1008 of Chapter X of Volume 1 of the North Carolina State Building Code, Title "Special Safety to Life Requirements Applicable to Existing High‑Rise Buildings" as adopted by the North Carolina State Building Code Council on March 9, 1976, as ratified and adopted as follows:
SECTION 1008‑SPECIAL SAFETY TO LIFE REQUIREMENTS APPLICABLE TO EXISTING HIGH‑RISE BUILDINGS
1008 – GENERAL.
(a) Applicability. – Within a reasonable time, as fixed by "written order" of the building official, and except as otherwise provided in subsection (j) of this section every building the [then] existing, that qualifies for classification under Table 1008.1 shall be considered to be a high‑rise building and shall be provided with safety to life facilities as hereinafter specified. All other buildings shall be considered as low‑rise. NOTE: The requirements of Section 1008 shall be considered as minimum requirements to provide for reasonable safety to life requirements for existing buildings and where possible, the owner and designer should consider the provisions of Section 506 applicable to new high‑rise buildings.
(b) Notification of Building Owner. – The Department of Insurance will send copies of amendments adopted to all local building officials with the suggestion that all local building officials transmit to applicable building owners in their jurisdiction copies of adopted amendments, within six months from the date the amendments are adopted, with the request that each building owner respond to the local building official how he plans to comply with these requirements within a reasonable time.
NOTE: Suggested reasonable time and procedures for owners to respond to the building official's request is as follows:
(1) The building owner shall, upon receipt of written request from the building official on compliance procedures within a reasonable time, submit an overall plan required by 1008(c) below within one year and within the time period specified in the approved overall plan, but not to exceed five years after the overall plan is approved, accomplish compliance with this section, as evidenced by completion of the work in accordance with approved working drawings and specifications and by issuance of a new Certificate of Compliance by the building official covering the work. Upon approval of building owner's overall plan, the building official shall issue a "written order", as per 1008(a) above, to comply with Section 1008 in accordance with the approved overall plan.
(2) The building official may permit time extensions beyond five years to accomplish compliance in accordance with the overall plan when the owner can show just cause for such extension of time at the time the overall plan is approved.
(3) The local building official shall send second request notices as per 1008(b) to building owners who have made no response to the request at the end of six months and a third request notice to no response building owners at the end of nine months.
(4) If the building owner makes no response to any of the three requests for information on how the owner plans to comply with Section 1008 within 12 months from the first request, the building official shall issue a "written order" to the building owner to provide his building with the safety to life facilities as required by this section and to submit an overall plan specified by (1) above within six months with the five‑year time period starting on the date of the "written order".
(5) For purposes of this section, the Construction Section of the Division of Health Service Regulation, Department of Health and Human Services, will notify all non‑State owned I‑Institutional buildings requiring licensure by the Division of Health Service Regulation and coordinate compliance requirements with the Department of Insurance and the local building official.
(c) Submission of Plans and Time Schedule for Completing Work. – Plans and specifications, but not necessarily working drawings covering the work necessary to bring the building into compliance with this section shall be submitted to the building official within a reasonable time. (See suggested time in NOTE of Section 1008(b) above). A time schedule for accomplishing the work, including the preparation of working drawings and specifications shall be included. Some of the work may require longer periods of time to accomplish than others, and this shall be reflected in the plan and schedule.
NOTE: Suggested Time Period For Compliance:
SUGGESTED TIME PERIOD FOR COMPLIANCE
______________________________________________________________________
CLASS I CLASS II CLASS III TIME FOR
ITEM (SECTION) (SECTION) (SECTION) COMPLETION
Signs in Elevator Lobbies
and Elevator Cabs 1008.2(h) 1008.3(h) 1008.4(h) 180 days
Emergency Evacuation Plan 1008(b) NOTE: 180 days
Corridor Smoke Detectors
(Includes alternative
door closers) 1008.2(c) 1008.3(c) 1008.4(c) 1 year
Manual Fire Alarm 1008.2(a) 1008.3(a) 1008.4(a) 1 year
Voice Communication
System Required 1008.2(b) 1008.3(b) 1008.4(b) 2 years
Smoke Detectors Required 1008.2(c) 1008.3(c) 1008.4(c) 1 year
Protection and Fire Stopping
for Vertical Shafts 1008.2(f) 1008.3(f) 1008.4(f) 3 years
Special Exit Requirements
Number, Location and
Illumination to be in
accordance with
Section 1007 1008.2(e) 1008.3(e) 1008.4(e) 3 years
Emergency Electrical
Power Supply 1008.2(d) 1008.3(d) 1008.4(d) 4 years
Special Exit Facilities
Required 1008.2(e) 1008.3(e) 1008.4(e) 5 years
Compartmentation for
Institutional Buildings 1008.2(f) 1008.3(f) 1008.4(f) 5 years
Emergency Elevator
Requirements 1008.2(h) 1008.3(h) 1008.4(h) 5 years
Central Alarm Facility
Required 1008.3(i) 1008.4(i) 5 years
Areas of Refuge Required
on Every Eighth Floor 1008.4(j) 5 years
Smoke Venting 1008.4(k) 5 years
Fire Protection of
Electrical Conductors 1008.4(l) 5 years
Sprinkler System Required 1008.4(m) 5 years
(d) Building Official Notification of Department of Insurance. – The building official shall send copies of written notices he sends to building owners to the Engineering and Building Codes Division for their files and also shall file an annual report by August 15th of each year covering the past fiscal year setting forth the work accomplished under the provisions of this section.
(e) Construction Changes and Design of Life Safety Equipment. – Plans and specifications which contain construction changes and design of life safety equipment requirements to comply with provisions of this section shall be prepared by a registered architect in accordance with provisions of Chapter 83A of the General Statutes or by a registered engineer in accordance with provisions of Chapter 89C of the General Statutes or by both an architect and engineer particularly qualified by training and experience for the type of work involved. Such plans and specifications shall be submitted to the Engineering and Building Codes Division of the Department of Insurance for approval. Plans and specifications for I‑Institutional buildings licensed by the Division of Health Service Regulation as noted in (b) above shall be submitted to the Construction Section of that Division for review and approval.
(f) Filing of Test Reports and Maintenance on Life Safety Equipment. – The engineer performing the design for the electrical and mechanical equipment, including sprinkler systems, must file the test results with the Engineering and Building Codes Division of the Department of Insurance, or to the agency designated by the Department of Insurance, that such systems have been tested to indicate that they function in accordance with the standards specified in this section and according to design criteria. These test results shall be a prerequisite for the Certificate of Compliance required by (b) above. Test results for I‑Institutional shall be filed with the Construction Section, Division of Health Service Regulation. It shall be the duty and responsibility of the owners of Class I, II and III buildings to maintain smoke detection, fire detection, fire control, smoke removal and venting as required by this section and similar emergency systems in proper operating condition at all times. Certification of full tests and inspections of all emergency systems shall be provided by the owner annually to the fire department.
(g) Applicability of Chapter X and Conflicts with Other Sections. – The requirements of this section shall be in addition to those of Sections 1001 through 1007; and in case of conflict, the requirements affording the higher degree of safety to life shall apply, as determined by the building official.
(h) Classes of Buildings and Occupancy Classifications. – Buildings shall be classified as Class I, II or III according to Table 1008.1. In the case of mixed occupancies, for this purpose, the classification shall be the most restrictive one resulting from the application of the most prevalent occupancies to Table 1008.1.
FOOTNOTE: Emergency Plan. – Owners, operators, tenants, administrators or managers of high‑rise buildings should consult with the fire authority having jurisdiction and establish procedures which shall include but not necessarily be limited to the following:
(1) Assignment of a responsible person to work with the fire authority in the establishment, implementation and maintenance of the emergency pre‑fire plan.
(2) Emergency plan procedures shall be supplied to all tenants and shall be posted conspicuously in each hotel guest room, each office area, and each schoolroom.
(3) Submission to the local fire authority of an annual renewal or amended emergency plan.
(4) Plan should be completed as soon as possible.
1008.1 – ALL EXISTING BUILDINGS SHALL BE CLASSIFIED AS CLASS I, II AND III ACCORDING TO TABLE 1008.1.
TABLE 1008.1
Scope
OCCUPIED FLOOR
CLASS OCCUPANCY ABOVE AVERAGE GRADE
GROUP (3)(4) EXCEEDING HEIGHT (2) Group R‑Residential 60' but less than 120' above
Group B‑Business average grade or 6 but less than
Group E‑Educational 12 stories above average grade.
CLASS I Group A‑Assembly
Group H‑Hazardous
Group I‑Institutional‑Restrained
Group I‑Institutional‑Unrestrained 36' but less than 60' above
average grade or 3 but less than
6 stories above average grade. Group R‑Residential 120' but less than 250' above
Group B‑Business average grade or 12 but less
Group E‑Educational than 25 stories above average
grade.
CLASS II Group A‑Assembly
Group H‑Hazardous
Group I‑Institutional‑Restrained
Group I‑Institutional‑Unrestrained 60' but less than 250' above
average grade or 6 but less than
25 stories above average grade. Group R‑Residential 250' or 25 stories above average
Group B‑Business grade.
CLASS III Group E‑Educational
Group I‑Institutional
Group A‑Assembly
Group H‑Hazardous
NOTE 1: The entire building shall comply with this section when the building has an occupied floor above the height specified, except that portions of the buildings which do not exceed the height specified are exempt from this section, subject to the following provisions:
(a) Low‑rise portions of Class I buildings must be separated from high‑rise portions by one‑hour construction.
(b) Low‑rise portions of Class II and III buildings must be separated from high‑rise portions by two‑hour construction.
(c) Any required exit from the high‑rise portion which passes through the low‑rise portions must be separated from the low‑rise portion by the two‑hour construction.
NOTE 2: The height described in Table 1008.1 shall be measured between the average grade outside the building and the finished floor of the top occupied story.
NOTE 3: Public parking decks meeting the requirements of Section 412.7 and less than 75 feet in height are exempt from the requirements of this section when there is no other occupancy above or below such deck.
NOTE 4: Special purpose equipment buildings, such as telephone equipment buildings housing the equipment only, with personnel occupant load limited to persons required to maintain the equipment may be exempt from any or all of these requirements at the discretion of the Engineering and Building Codes Division provided such special purpose equipment building is separated from other portions of the building by two‑hour fire rated construction.
1008.2‑REQUIREMENTS FOR EXISTING CLASS I BUILDINGS.
All Class I buildings shall be provided with the following:
(a) An approved manual fire alarm system, meeting the requirements of Section 1125 and applicable portions of NFPA 71, 72A, 72B, 72C or 72D, shall be provided unless the building is fully sprinklered or equipped with an approved automatic fire detection system connected to the fire department.
(b) All Class I buildings shall meet the requirements of Sections 1001‑1007.
(c) Smoke Detectors Required. – At least one approved listed smoke detector tested in accordance with UL‑167, capable of detecting visible and invisible particles of combustion shall be installed as follows:
(1) All buildings classified as institutional, residential and assembly occupancies shall be provided with listed smoke detectors in all required exit corridors spaced no further than 60' on center or more than 15' from any wall. Exterior corridors open to the outside are not required to comply with this requirement. If the corridor walls have one‑hour fire resistance rating with all openings protected with 1‑3/4 inch solid wood core or hollow metal door or equivalent and all corridor doors are equipped with approved self‑closing devices, the smoke detectors in the corridor may be omitted. Detectors in corridors may be omitted when each dwelling unit is equipped with smoke detectors which activate the alarm system.
(2) In every mechanical equipment, boiler, electrical equipment, elevator equipment or similar room unless the room is sprinklered or the room is separated from other areas by two‑hour fire resistance construction with all openings therein protected with approved fire dampers and Class B fire doors. (Approved listed fire (heat) detectors may be submitted for these rooms.)
(3) In the return air portion of every air conditioning and mechanical ventilation system that serves more than one floor.
(4) The activation of any detector shall activate the alarm system, and shall cause such other operations as required by this Code.
(5) The annunciator shall be located near the main entrance or in a central alarm and control facility.
NOTE 1: Limited area sprinklers may be supplied from the domestic water system provided the domestic water system is designed to support the design flow of the largest number of sprinklers in any one of the enclosed areas. When supplied by the domestic water system, the maximum number of sprinklers in any one enclosed room or area shall not exceed 20 sprinklers which must totally protect the room or area.
(d) Emergency Electrical Power Supply. – An emergency electrical power supply shall be provided to supply the following for a period of not less than two hours. An emergency electrical power supply may consist of generators, batteries, a minimum of two remote connections to the public utility grid supplied by multiple generating stations, a combination of the above.
(1) Emergency, exit and elevator cab lighting.
(2) Emergency illumination for corridors, stairs, etc.
(3) Emergency Alarms and Detection Systems. – Power supply for fire alarm and fire detection. Emergency power does not need to be connected to fire alarm or detection systems when they are equipped with their own emergency power supply from float or trickle charge battery in accordance with NFPA standards.
(e) Special Exit Requirements. – Exits and exitways shall meet the following requirements:
(1) Protection of Stairways Required. – All required exit stairways shall be enclosed with noncombustible one‑hour fire rated construction with a minimum of 1¾ inch solid core wood door or hollow metal door or 20 minute UL listed doors as entrance thereto. (See Section 1007.5).
(2) Number and Location of Exits. – All required exit stairways shall meet the requirements of Section 1007 to provide for proper number and location and proper fire rated enclosures and illumination of and designation for means of egress.
(3) Exit Outlets. – Each required exit stair shall exit directly outside or through a separate one‑hour fire rated corridor with no openings except the necessary openings to exit into the fire rated corridor and from the fire rated corridor and such openings shall be protected with 1¾ inch solid wood core or hollow metal door or equivalent unless the exit floor level and all floors below are equipped with an approved automatic sprinkler system meeting the requirements of NFPA No. 13.
(f) Smoke Compartments Required for I‑Institutional Buildings. – Each occupied floor shall be divided into at least two compartments with each compartment containing not more than 30 institutional occupants. Such compartments shall be subdivided with one‑half hour fire rated partitions which shall extend from outside wall to outside wall and from floor to and through any concealed space to the floor slab or roof above and meet the following requirements:
(1) Maximum area of any smoke compartment shall be not more than 22,500 square feet in area with both length and width limited to 150 feet.
(2) At least one smoke partition per floor regardless of building size forming two smoke zones of approximately equal size.
(3) All doors located in smoke partitions shall be properly gasketed to insure a substantial barrier to the passage of smoke and gases.
(4) All doors located in smoke partitions shall be no less than 1¾ inch thick solid core wood doors with UL, ¼ inch wire glass panel in metal frames. This glass panel shall be a minimum of 100 square inches and a maximum of 720 square inches.
(5) Every door located in a smoke partition shall be equipped with an automatic closer. Doors that are normally held in the open position shall be equipped with an electrical device that shall, upon actuation of the fire alarm or smoke detection system in an adjacent zone, close the doors in that smoke partition.
(6) Glass in all corridor walls shall be ¼", UL approved, wire glass in metal frames in pieces not to exceed 1296 square inches.
(7) Doors to all patient rooms and treatment areas shall be a minimum of 1¾ inch solid core wood doors except in fully sprinklered buildings.
(g) Protection and Fire Stopping for Vertical Shafts. – All vertical shafts extending more than one floor including elevator shafts, plumbing shafts, electrical shafts and other vertical openings shall be protected with noncombustible one‑hour fire rated construction with shaft wall openings protected with 1¾ inch solid core wood door or hollow metal door. Vertical shafts (such as electrical wiring shafts) which have openings such as ventilated doors on each floor must be fire stopped at the floor slab level with noncombustible materials having a fire resistance rating not less than one hour to provide an effective barrier to the passage of smoke, heat and gases from floor to floor through such shafts.
EXCEPTION: Shaft wall openings protected in accordance with NFPA No. 90A and openings connected to metal ducts equipped with approved fire dampers within the shaft wall openings do not need any additional protection.
(h) Signs in Elevator Lobbies and Elevator Cabs. – Each elevator lobby call station on each floor shall have an emergency sign located adjacent to the call button and each elevator cab shall have an emergency sign located adjacent to the floor status indicator. The required emergency sign shall be readable at all times and shall be a minimum of 1/2" high block letters with the words: "IN CASE OF FIRE DO NOT USE ELEVATOR – USE THE EXIT STAIRS" or other words to this effect.
1008.3 – REQUIREMENTS FOR EXISTING CLASS II BUILDINGS.
All Class II buildings must meet the following requirements:
(a) Manual Fire Alarm. – Provide manual fire alarm system in accordance with Section 1008.2(a). In addition, buildings so equipped with sprinkler alarm system or automatic fire detection system must have at least one manual fire alarm station near an exit on each floor as a part of such sprinkler or automatic fire detection and alarm system. Such manual fire alarm systems shall report a fire by floor.
(b) Voice Communication System Required. – An approved voice communication system or systems operated from the central alarm and control facilities shall be provided and shall consist of the following:
(1) One‑Way Voice Communication Public Address System Required. – A one‑way voice communication system shall be established on a selective basis which can be heard clearly by all occupants in all exit stairways, elevators, elevator lobbies, corridors, assembly rooms and tenant spaces.
NOTE 1: This system shall function so that in the event of one circuit or speaker being damaged or out of service, the remainder of the system shall continue to be operable.
NOTE 2: This system shall include provisions for silencing the fire alarm devices when the loud speakers are in use, but only after the fire alarm devices have operated initially for not less than 15 seconds.
(c) Smoke Detectors Required. – Smoke detectors are required as per Section 1008.2(c). The following are additional requirements:
(1) Storage rooms larger than 24 square feet or having a maximum dimension of over eight feet shall be provided with approved fire detectors or smoke detectors installed in an approved manner unless the room is sprinklered.
(2) The actuation of any detectors shall activate the fire alarm system.
(d) Emergency Electrical Power Supply. – An emergency electrical power supply shall be provided to supply the following for a period of not less than two hours. An emergency electrical power supply may consist of generators, batteries, a minimum of two remote connections to the public utility grid supplied by multiple generating stations, a combination of the above. Power supply shall furnish power for items listed in Section 1008.2(d) and the following:
(1) Pressurization Fans. – Fans to provide required pressurization, smoke venting or smoke control for stairways.
(2) Elevators. – The designated emergency elevator.
(e) Special Exit Facilities Required. – The following exit facilities are required:
(1) The special exit facilities required in 1008.2(e) are required. All required exit stairways shall be enclosed with noncombustible two‑hour fire rated construction with a minimum of 1½ hour Class B‑labeled doors as entrance thereto: (See Section 1007.5).
(2) Smoke‑Free Stairways Required. – At least one stairway shall be a smoke free stairway in accordance with Section 1104.2 or at least one stairway shall be pressurized to between 0.15 inch and 0.35 inch water column pressure with all doors closed. Smoke‑free stairs and pressurized stairs shall be identified with signs containing letters a minimum of ½ inch high containing the words "PRIMARY EXIT STAIRS" unless all stairs are smoke free or pressurized. Approved exterior stairways meeting the requirements of Chapter XI or approved existing fire escapes meeting the requirements of Chapter X with all openings within 10 feet protected with wire glass or other properly designed stairs protected to assure similar smoke‑free vertical egress may be permitted. All required exit stairways shall also meet the requirements of Section 1008.2(e).
(3) If stairway doors are locked from the stairway side, keys shall be provided to unlock all stairway doors on every eighth floor leading into the remainder of the building and the key shall be located in a glass enclosure adjacent to the door at each floor level (which may sound an alarm when the glass is broken). When the key unlocks the door, the hardware shall be of the type that remains unlocked after the key is removed. Other means, approved by the building official may be approved to enable occupants and fire fighters to readily unlock stairway doors on every eighth floor that may be locked from the stairwell side. The requirements of this section may be eliminated in smoke‑free stairs and pressurized stairs provided fire department access keys are provided in locations acceptable to the local fire authority.
(f) Compartmentation for I‑Institutional Buildings Required. – See Section 1008.2(f).
(g) Protection and Fire Stopping for Vertical Shafts. – All vertical shafts extending more than one floor including elevator shafts, plumbing shafts, electrical shafts and other vertical openings shall be protected with noncombustible two‑hour fire rated construction with Class B‑labeled door except for elevator doors which shall be hollow metal or equivalent. All vertical shafts which are not so enclosed must be fire stopped at each floor slab with noncombustible materials having a fire resistance rating of not less than two hours to provide an effective barrier to the passage of smoke, heat and gases from floor to floor through such shaft.
EXCEPTION: Shaft wall openings protected in accordance with NFPA No. 90A and openings connected to metal ducts equipped with approved fire dampers within the shaft wall opening do not need any additional protection.
(h) Emergency Elevator Requirements.
(1) Elevator Recall. – Each elevator shall be provided with an approved manual return. When actuated, all cars taking a minimum of one car at a time, in each group of elevators having common lobby, shall return directly at normal car speed to the main floor lobby, or to a smoke‑free lobby leading most directly to the outside. Cars that are out of service are exempt from this requirement. The manual return shall be located at the main floor lobby.
NOTE: Manually operated cars are considered to be in compliance with this provision if each car is equipped with an audible or visual alarm to signal the operator to return to the designated level.
(2) Identification of Emergency Elevator. – At least one elevator shall be identified as the emergency elevator and shall serve all floor levels. NOTE: This elevator will have a manual control in the cab which will override all other controls including floor call buttons and door controls.
(3) Signs in Elevator Lobbies and Elevator Cabs. – Each elevator lobby call station on each floor shall have an emergency sign located adjacent to the call button and each elevator cab shall have an emergency sign located adjacent to the floor status indicator. These required emergency signs shall be readable at all times and shall be a minimum of ½ inch high block letters with the words: "IN CASE OF FIRE DO NOT USE ELEVATOR – USE THE EXIT STAIRS" or other words to this effect.
(i) Central Alarm Facility Required. – A central alarm facility accessible at all times to fire department personnel or attended 24 hours a day, shall be provided and shall contain the following:
(1) Facilities to automatically transmit manual and automatic alarm signals to the fire department either directly or through a signal monitoring service.
(2) Public service telephone.
(3) Fire detection and alarm systems annunciator panels to indicate the type of signal and the floor or zone from which the fire alarm is received. These signals shall be both audible and visual with a silence switch for the audible.
NOTE: Detectors in HVAC systems used for fan shut down need not be annunciated.
(4) Master keys for access from all stairways to all floors.
(5) One‑way voice emergency communications system controls.
1008.4 – REQUIREMENTS FOR EXISTING CLASS III BUILDINGS.
All Class III Buildings shall be provided with the following:
(a) Manual Fire Alarm System. – A manual fire alarm system meeting the requirements of Section 1008.3(a).
(b) Voice Communication System Required. – An approved voice communication system or systems operated from the central alarm and control facilities shall be provided and shall consist of the following:
(1) One‑Way Voice Communication Public Address System Required. – A one‑way voice communication system shall be established on a selective or general basis which can be heard clearly by all occupants in all elevators, elevator lobbies, corridors, and rooms or tenant spaces exceeding 1,000 sq. ft. in area.
NOTE 1: This system shall be designed so that in the event of one circuit or speaker being damaged or out of service the remainder of the system shall continue to be operable.
NOTE 2: This system shall include provisions for silencing the fire alarm devices when the loud speakers are in use, but only after the fire alarm devices have operated initially for not less than 15 seconds.
(2) Two‑way system for use by both fire fighters and occupants at every fifth level in stairways and in all elevators.
(3) Within the stairs at levels not equipped with two‑way voice communications, signs indicating the location of the nearest two‑way device shall be provided.
NOTE: The one‑way and two‑way voice communication systems may be combined.
(c) Smoke Detectors Required. – Approved listed smoke detectors shall be installed in accordance with Section 1008.3(c) and in addition, such detectors shall terminate at the central alarm and control facility and be so designed that it will indicate the fire floor or the zone on the fire floor.
(d) Emergency Electrical Power Supply. – Emergency electrical power supply meeting the requirements of Section 1008.3(d) to supply all emergency equipment required by Section 1008.3(d) shall be provided and in addition, provisions shall be made for automatic transfer to emergency power in not more than ten seconds for emergency illumination, emergency lighting and emergency communication systems. Provisions shall be provided to transfer power to a second designated elevator located in a separate shaft from the primary emergency elevator. Any standpipe or sprinkler system serving occupied floor areas 400 feet or more above grade shall be provided with on‑site generated power or diesel driven pump.
(e) Special Exit Requirements. – All exits and exitways shall meet the requirements of Section 1008.3(e).
(f) Compartmentation of Institutional Buildings Required. – See Section 1008.2(f).
(g) Protection and Fire Stopping for Vertical Shafts. – Same as Class II buildings. See Section 1008.3(g).
(h) Emergency Elevator Requirements.
(1) Primary Emergency Elevator. – At least one elevator serving all floors shall be identified as the emergency elevator with identification signs both outside and inside the elevator and shall be provided with emergency power to meet the requirements of Section 1008.3(c).
NOTE: This elevator will have a manual control in the cab which will override all other controls including floor call buttons and door controls.
(2) Elevator Recall. – Each elevator shall be provided with an approved manual return. When actuated, all cars taking a minimum of one car at a time, in each group of elevators having common lobby, shall return directly at normal car speed to the main floor lobby or to a smoke‑free lobby leading most directly to the outside. Cars that are out of service are exempt from this requirement. The manual return shall be located at the main floor lobby.
NOTE: Manually operated cars are considered to be in compliance with this provision if each car is equipped with an audible or visual alarm to signal the operator to return to the designated level.
(3) Signs in Elevator Lobbies and Elevator Cabs. – Each elevator lobby call station on each floor shall have an emergency sign located adjacent to the call button and each elevator cab shall have an emergency sign located adjacent to the floor status indicator. These required emergency signs shall be readable at all times and have a minimum of ½" high block letters with the words: "IN CASE OF FIRE, UNLESS OTHERWISE INSTRUCTED, DO NOT USE THE ELEVATOR – USE THE EXIT STAIRS" or other words to this effect.
(4) Machine Room Protection. – When elevator equipment located above the hoistway is subject to damage from smoke particulate matter, cable slots entering the machine room shall be sleeved beneath the machine room floor to inhibit the passage of smoke into the machine room.
(5) Secondary Emergency Elevator. – At least one elevator located in separate shaft from the Primary Emergency Elevator shall be identified as the "Secondary Emergency Elevator" with identification signs both outside and inside the elevator. It will serve all occupied floors above 250 feet and shall have all the same facilities as the primary elevator and will be capable of being transferred to the emergency power system.
NOTE: Emergency power supply can be sized for nonsimultaneous use of the primary and secondary emergency elevators.
(i) Central Alarm and Control Facilities Required.
(1) A central alarm facility accessible at all times to Fire Department personnel or attended 24 hours a day, shall be provided. The facility shall be located on a completely sprinklered floor or shall be enclosed in two‑hour fire resistive construction. Openings are permitted if protected by listed 1½ hour Class B‑labeled closures or water curtain devices capable of a minimum discharge of three gpm per lineal foot of opening. The facility shall contain the following:
(i) Facilities to automatically transmit manual and automatic alarm signals to the fire department either directly or through a signal monitoring service.
(ii) Public service telephone.
(iii) Direct communication to the control facility.
(iv) Controls for the voice communication systems.
(v) Fire detection and alarm system annunciator panels to indicate the type of signal and the floor or zone from which the fire alarm is received, those signals, shall be both audible and visual with a silence switch for the audible.
NOTE: Detectors in HVAC systems used for fan shut down need not be annunciated.
(2) A control facility (fire department command station) shall be provided at or near the fire department response point and shall contain the following:
(i) Elevator status indicator.
NOTE: Not required in buildings where there is a status indicator at the main elevator lobby.
(ii) Master keys for access from all stairways to all floors.
(iii) Controls for the two‑way communication system.
(iv) Fire detection and alarm system annunciator panels to indicate the type of signal and the floor or zone from which the fire alarm is received.
(v) Direct communication to the central alarm facility.
(3) The central alarm and control facilities may be combined in a single approved location. If combined, the duplication of facilities and the direct communication system between the two may be deleted.
(j) Areas of Refuge Required. – Class III buildings shall be provided with a designated "area of refuge" at the 250 ft. level and on at least every eighth floor or fraction thereof above that level to be designed so that occupants above the 250 ft. level can enter at all times and be safely accommodated in floor areas meeting the following requirements unless the building is completely sprinklered:
(1) Identification and Size. – These areas of refuge shall be identified on the plans and in the building as necessary. The area of refuge shall provide not less than 3 sq. ft. per occupant for the total number of occupants served by the area based on the occupancy content calculated by Section 1105. A minimum of two percent (2%) of the number of occupants on each floor shall be assumed to be handicapped and no less than 16 sq. ft. per handicapped occupant shall be provided. Smoke proof stairways meeting the requirements of Section 1104.2 and pressurized stairways meeting the requirements of Section 1108.3(e)(2) may be used for ambulatory occupants at the rate of 3 sq. ft. of area of treads and landings per person, but in no case shall the stairs count for more than one‑third of the total occupants. Doors leading to designated areas of refuge from stairways or other areas of the building shall not have locking hardware or shall be automatically unlocked upon receipt of any manual or automatic fire alarm signal.
(2) Pressurized. – The area of refuge shall be pressurized with 100% fresh air utilizing the maximum capacity of existing mechanical building air conditioning system without recirculation from other areas or other acceptable means of providing fresh air into the area.
(3) Fire Resistive Separation. – Walls, partitions, floor assemblies and roof assemblies separating the area of refuge from the remainder of the building shall be noncombustible and have a fire resistance rating of not less than one hour. Duct penetrations shall be protected as required for penetrations of shafts. Metallic piping and metallic conduit may penetrate or pass through the separation only if the openings around the piping or conduit are sealed on each side of the penetrations with impervious noncombustible materials to prevent the transfer of smoke or combustion gases from one side of the separation to the other. The fire door serving as a horizontal exit between compartments shall be so installed, fitted and gasketed to provide a barrier to the passage of smoke.
(4) Access Corridors. – Any corridor leading to each designated area of refuge shall be protected as required by Sections 1104 and 702. The capacity of an access corridor leading to an area of refuge shall be based on 150 persons per unit width as defined in Section 1105.2. An access corridor may not be less than 44 inches in width. The width shall be determined by the occupant content of the most densely populated floor served. Corridors with one‑hour fire resistive separation may be utilized for area of refuge at the rate of three sq. ft. per ambulatory occupant provided a minimum of one cubic ft. per minute of outside air per square foot of floor area is introduced by the air conditioning system.
(5) Penetrations. – The continuity of the fire resistance at the juncture of exterior walls and floors must be maintained.
(k) Smoke Venting. – Smoke venting shall be accomplished by one of the following methods in nonsprinklered buildings:
(1) In a nonsprinklered building, the heating, ventilating and air conditioning system shall be arranged to exhaust the floor of alarm origin at its maximum exhausting capacity without recirculating air from the floor of alarm origin to any other floor. The system may be arranged to accomplish this either automatically or manually. If the air conditioning system is also used to pressurize the areas of refuge, this function shall not be compromised by using the system for smoke removal.
(2) Venting facilities shall be provided at the rate of 20 square feet per 100 lineal feet or 10 square feet per 50 lineal feet of exterior wall in each story and distributed around the perimeter at not more than 50 or 100 foot intervals openable from within the fire floor. Such panels and their controls shall be clearly identified.
(3) Any combination of the above two methods or other approved designs which will produce equivalent results and which is acceptable to the building official.
(l) Fire Protection of Electrical Conductors. – New electrical conductors furnishing power for pressurization fans for stairways, power for emergency elevators and fire pumps required by Section 1008.4(d) shall be protected by a two‑hour fire rated horizontal or vertical enclosure or structural element which does not contain any combustible materials. Such protection shall begin at the source of the electrical power and extend to the floor level on which the emergency equipment is located. It shall also extend to the emergency equipment to the extent that the construction of the building components on that floor permits. New electrical conductors in metal raceways located within a two‑hour fire rated assembly without any combustible therein are exempt from this requirement.
(m) Automatic Sprinkler Systems Required.
(1) All areas which are classified as Group M‑mercantile and Group H‑hazardous shall be completely protected with an automatic sprinkler system.
(2) All areas used for commercial or institutional food preparation and storage facilities adjacent thereto shall be provided with an automatic sprinkler system.
(3) An area used for storage or handling of hazardous substances shall be provided with an automatic sprinkler system.
(4) All laboratories and vocational shops in Group E, Educational shall be provided with an automatic sprinkler system.
(5) Sprinkler systems shall be in strict accordance with NFPA No. 13 and the following requirements:
The sprinkler system must be equipped with a water flow and supervisory signal system that will transmit automatically a water flow signal directly to the fire department or to an independent signal monitoring service satisfactory to the fire department.
(j) Subsection (i) of this section does not apply to business occupancy buildings as defined in the North Carolina State Building Code except that evacuation plans as required on page 8, lines 2 through 16 [Section 1008, footnote following subsection (h)], and smoke detectors as required for Class I Buildings as required by Section 1008.2, page 11, lines 5 through 21 [Section 1008.2, subdivision (c)(1)]; Class II Buildings as required by Section 1008.3, page 17, lines 17 through 28 and page 18, lines 1 through 10 [Section 1008.3, subsections (c) and (d)]; and Class III Buildings, as required by Section 1008.4, lines 21 through 25 [Section 1008.4, subsection (c)] shall not be exempted from operation of this act as applied to business occupancy buildings, except that the Council shall adopt rules that allow a business occupancy building built prior to 1953 to have a single exit to remain if the building complies with the Building Code on or before December 31, 2006.
(j1) A nonbusiness occupancy building built prior to the adoption of the 1953 Building Code that is not in compliance with Section 402.1.3.5 of Volume IX of the Building Code or Section 3407.2.2 of Volume I of the Building Code must comply with the applicable sections by December 31, 2006.
(k) For purposes of use in the Code, the term "Family Care Home" shall mean an adult care home having two to six residents.
(l) When any question arises as to any provision of the Code, judicial notice shall be taken of that provision of the Code. (1957, c. 1138; 1969, c. 567; c. 1229, ss. 2‑6; 1971, c. 1100, ss. 1, 2; 1973, c. 476, ss. 84, 128, 138, 152; c. 507, s. 5; 1981, c. 677, s. 3; c. 713, ss. 1, 2; 1981 (Reg. Sess., 1982), c. 1282, s. 20.2D; c. 1348, s. 1; 1983, c. 614, s. 3; 1985, c. 576, s. 1; c. 622, s. 2; c. 666, s. 39; 1989, c. 25, s. 2; c. 681, ss. 2, 3, 9, 10, 18, 19; c. 727, ss. 157, 158; 1991 (Reg. Sess., 1992), c. 895, s. 1; 1993, c. 329, ss. 1, 3; c. 539, s. 1009; 1994, Ex. Sess., c. 24, s. 14(c); 1995, c. 111, s. 1; c. 242, s. 1; c. 507, s. 27.8(r); c. 535, s. 30; 1997‑26, ss. 1‑3, 5; 1997‑443, ss. 11A.93, 11A.94, 11A.118(a), 11A.119(a); 1998‑57, s. 2; 1998‑172, s. 1; 1998‑202, s. 4(u); 1999‑456, s. 40; 2000‑137, s. 4(x); 2000‑140, s. 93.1(a); 2001‑141, ss. 1, 2, 3, 4; 2001‑421, ss. 1.1, 1.2, 1.5; 2001‑424, s. 12.2(b); 2002‑144, s. 5; 2003‑221, s. 6; 2003‑284, s. 22.2; 2004‑124, ss. 21.1, 21.2; 2005‑205, s. 6; 2007‑182, ss. 1, 2; 2007‑529, s. 1; 2007‑542, s. 1; 2008‑176, s. 2; 2008‑219, s. 1.)
§ 143‑138.1. Introduction and instruction of the North Carolina Building Code.
Prior to the effective date of Code changes pursuant to G.S. 143‑138, the State Building Code Council and Department of Insurance shall provide for instructional classes for the various trades affected by the Code. The Department of Insurance shall develop the curriculum for each class but shall consult the affected licensing boards and trade organizations. The curriculum shall include explanations of the rationale and need for each Code amendment or revision. Classes may also be conducted by, on behalf of, or in cooperation with licensing boards, trade associations, and professional societies. The Department of Insurance may charge fees sufficient to recover the costs it incurs under this section. The Council shall ensure that courses are accessible to persons throughout the State. (1997‑26, s. 6.)
§ 143‑139. Enforcement of Building Code.
(a) Procedural Requirements. – Subject to the provisions set forth herein, the Building Code Council shall adopt such procedural requirements in the North Carolina State Building Code as shall appear reasonably necessary for adequate enforcement of the Code while safeguarding the rights of persons subject to the Code.
(b) General Building Regulations. – The Insurance Commissioner shall have general supervision, through the Division of Engineering of the Department of Insurance, of the administration and enforcement of all sections of the North Carolina State Building Code pertaining to plumbing, electrical systems, general building restrictions and regulations, heating and air conditioning, fire protection, and the construction of buildings generally, except those sections of the Code, the enforcement of which is specifically allocated to other agencies by subsections (c) and (d) below. The Insurance Commissioner, by means of the Division of Engineering, shall exercise his duties in the enforcement of the North Carolina State Building Code (including local building codes which have superseded the State Building Code in a particular political subdivision pursuant to G.S. 143‑138(e)) in cooperation with local officials and local inspectors duly appointed by the governing body of any municipality or board of county commissioners pursuant to Part 5 of Article 19 of Chapter 160A of the General Statutes or Part 4 of Article 18 of Chapter 153A of the General Statutes, or any other applicable statutory authority.
(b1) Remedies. – In case any building or structure is maintained, erected, constructed, or reconstructed or its purpose altered, so that it becomes in violation of this Article or of the North Carolina State Building Code, either the local enforcement officer or the State Commissioner of Insurance or other State official with responsibility under this section may, in addition to other remedies, institute any appropriate action or proceeding to: (i) prevent the unlawful maintenance, erection, construction, or reconstruction or alteration of purpose, or overcrowding, (ii) restrain, correct, or abate the violation, or (iii) prevent the occupancy or use of the building, structure, or land until the violation is corrected. In addition to the civil remedies set out in G.S. 160A‑175 and G.S. 153A‑123, a county, city, or other political subdivision authorized to enforce the North Carolina State Building Code within its jurisdiction may, for the purposes stated in (i) through (iii) of this subsection, levy a civil penalty for violation of the fire prevention code of the North Carolina State Building Code, which penalty may be recovered in a civil action in the nature of debt if the offender does not pay the penalty within a prescribed period of time after the offender has been cited for the violation. If the Commissioner or other State official institutes an action or proceeding under this section, a county, city, or other political subdivision may not institute a civil action under this section based upon the same violation. Appeals from the imposition of any remedy set forth herein, including the imposition of a civil penalty by a county, city, or other political subdivision, shall be as provided in G.S. 160A‑434.
(c) Boilers. – The Bureau of Boiler Inspection of the Department of Labor shall have general supervision of the administration and enforcement of those sections of the North Carolina State Building Code which pertain to boilers of the types enumerated in Article 7 of Chapter 95 of the General Statutes.
(d) Elevators. – The Department of Labor shall have general supervision of the administration and enforcement of those sections of the North Carolina State Building Code which pertain to elevators, moving stairways, and amusement devices such as merry‑go‑rounds, roller coasters, Ferris wheels, etc. (1957, c. 1138; 1963, c. 811; 1989, c. 681, s. 11; 1993, c. 329, s. 2.)
§ 143‑139.1. Certification of manufactured buildings, structures or components by recognized independent testing laboratory; minimum standards for modular homes.
(a) Certification. – The State Building Code may provide, in circumstances deemed appropriate by the Building Code Council, for testing, evaluation, inspection, and certification of buildings, structures or components manufactured off the site on which they are to be erected, by a recognized independent testing laboratory having follow‑up inspection services approved by the Building Code Council. Approval of such buildings, structures or components shall be evidenced by labels or seals acceptable to the Council. All building units, structures or components bearing such labels or seals shall be deemed to meet the requirements of the State Building Code and this Article without further inspection or payment of fees, except as may be required for the enforcement of the Code relative to the connection of units and components and enforcement of local ordinances governing zoning, utility connections, and foundations permits. The Building Code Council shall adopt and may amend from time to time such reasonable and appropriate rules and regulations as it deems necessary for approval of agencies offering such testing, evaluation, inspection, and certification services and for overseeing their operations. Such rules and regulations shall include provisions to insure that such agencies are independent and free of any potential conflicts of interest which might influence their judgment in exercising their functions under the Code. Such rules and regulations may include a schedule of reasonable fees to cover administrative expenses in approving and overseeing operations of such agencies and may require the posting of a bond or other security satisfactory to the Council guaranteeing faithful performance of duties under the Code.
The Building Code Council may also adopt rules to insure that any person that is not licensed, in accordance with G.S. 87‑1, and that undertakes to erect a North Carolina labeled manufactured modular building, meets the manufacturer's installation instructions and applicable provisions of the State Building Code. Any such person, before securing a permit to erect a modular building, shall provide the code enforcement official proof that he has in force for each modular building to be erected a $5,000 surety bond insuring compliance with the regulations of the State Building Code governing installation of modular buildings.
(b) Minimum Standards for Modular Homes. – To qualify for a label or seal under subsection (a) of this section, a single‑family modular home must meet or exceed the following construction and design standards:
(1) Roof pitch. – For homes with a single predominant roofline, the pitch of the roof shall be no less than five feet rise for every 12 feet of run.
(2) Eave projection. – The eave projections of the roof shall be no less than 10 inches, which may not include a gutter around the perimeter of the home, unless the roof pitch is 8/12 or greater.
(3) Exterior wall. – The minimum height of the exterior wall shall be at least seven feet six inches for the first story.
(4) Siding and roofing materials. – The materials and texture for the exterior materials shall be compatible in composition, appearance, and durability to the exterior materials commonly used in standard residential construction.
(5) Foundations. – The home shall be designed to require foundation supports around the perimeter. The supports may be in the form of piers, pier and curtain wall, piling foundations, a perimeter wall, or other approved perimeter supports. (1971, c. 1099; 1989, c. 653, s. 2; 2003‑400, s. 17.)
§ 143‑139.2. Enforcement of insulation requirements; certificate for occupancy; no electric service without compliance.
(a) In addition to other enforcement provisions set forth in this Chapter, no single family or multi‑unit residential building on which construction is begun in North Carolina on or after January 1, 1978, shall be occupied until it has been certified as being in compliance with the minimum insulation standards for residential construction, as prescribed in the North Carolina State Building Code or as approved by the Building Code Council as provided in G.S. 143‑ 138(e).
(b) No public supplier of electric service, including regulated public utilities, municipal electric service and electric membership corporations, shall connect for electric service to an occupant any residential building on which construction is begun on or after January 1, 1978, unless said building complies with the insulation requirements of the North Carolina State Building Code or of local building codes approved by the Building Codes Council as provided in G.S. 143‑138(e), and has been certified for occupancy in compliance with the minimum insulation standards of the North Carolina State Building Code or of any local modification approved as provided in G.S. 143‑138(e), by a person designated as an inspector pursuant to subsection (a) of this section.
(c) This section shall apply only in any county or city that elects to enforce the insulation and energy utilization standards of the State Building Code pursuant to G.S. 143‑151.27. (1977, c. 792, s. 7; 1983, c. 377, s. 1.)
§ 143‑139.3. Inspection of liquified petroleum gas piping systems for residential structures.
If the test required under the North Carolina State Building Code for a liquified petroleum gas piping system serving a one or two‑family residential dwelling is not performed by a qualified code enforcement official, as defined in G.S. 143‑151.8(a)(5), the contractor who installed the system shall verify that the system complies with the test requirements and shall certify the results, in writing, to the code official. (1993, c. 356, s. 3.)
§ 143‑140. Hearings before enforcement agencies as to questions under Building Code.
Any person desiring to raise any question under this Article or under the North Carolina State Building Code shall be entitled to a technical interpretation from the appropriate enforcement agency, as designated in the preceding section. Upon request in writing by any such person, the enforcement agency through an appropriate official shall within a reasonable time provide a written interpretation, setting forth the facts found, the decision reached, and the reasons therefor. In the event of dissatisfaction with such decision, the person affected shall have the options of:
(1) Appealing to the Building Code Council or
(2) Appealing directly to the Superior Court, as provided in G.S. 143‑141. (1957, c. 1138; 1989, c. 681, s. 4.)
§ 143‑140.1. Appeals of alternative design construction and methods.
Alternative designs and construction shall follow the State Building Code. In the event of a dispute between a local authority having jurisdiction and the designer or owner‑representative regarding alternative designs and construction, and notwithstanding any other section within this Article, appeals by the designer or owner‑representative on matters pertaining to alternative design construction or methods shall be heard by the Department of Insurance Engineering Division. The Department of Insurance Engineering Division shall issue its decision regarding an appeal filed under this section within 10 business days. The Commissioner of Insurance shall adopt rules in furtherance of this section. (2007‑507, s. 18.)
§ 143‑141. Appeals to Building Code Council.
(a) Method of Appeal. – Whenever any person desires to take an appeal to the Building Code Council from the decision of a State enforcement agency relating to any matter under this Article or under the North Carolina State Building Code, he shall within 30 days after such decision give written notice to the Building Code Council through the Division of Engineering of the Department of Insurance that he desires to take an appeal. A copy of such notice shall be filed at the same time with the enforcement agency from which the appeal is taken. The chairman of the Building Code Council shall fix a reasonable time and place for a hearing, giving reasonable notice to the appellant and to the enforcement agency. Such hearing shall be not later than the next regular meeting of the Council. The Building Code Council shall thereupon conduct a full and complete hearing as to the matters in controversy, after which it shall within a reasonable time give a written decision setting forth its findings of fact and its conclusions.
(b) Interpretations of the Code. – The Building Code Council shall have the duty, in hearing appeals, to give interpretations of such provisions of the Building Code as shall be pertinent to the matter at issue. Where the Council finds that an enforcement agency was in error in its interpretation of the Code, it shall remand the case to the agency with instructions to take such action as it directs. Interpretations by the Council and local enforcement officials shall be based on a reasonable construction of the Code provisions.
(c) Variations of the Code. – Where the Building Code Council finds on appeal that materials or methods of construction proposed to be used are as good as those required by the Code, it shall remand the case to the enforcement agency with instructions to permit the use of such materials or methods of construction. The Council shall thereupon immediately initiate procedures for amending the Code as necessary to permit the use of such materials or methods of construction.
(d) Further Appeals to the Courts. – Whenever any person desires to take an appeal from a decision of the Building Code Council or from the decision of an enforcement agency (with or without an appeal to the Building Code Council), he may take an appeal either to the Wake County Superior Court or to the superior court of the county in which the proposed building is to be situated, in accordance with the provisions of Chapter 150B of the General Statutes. (1957, c. 1138; 1973, c. 1331, s. 3; 1987, c. 827, s. 1; 1997‑26, s. 7.)
§ 143‑142. Further duties of the Building Code Council.
(a) Recommended Statutory Changes. – It shall be the duty of the Building Code Council to make a thorough study of the building laws of the State, including both the statutes enacted by the General Assembly and the rules and regulations adopted by State and local agencies. On the basis of such study, the Council shall recommend to the 1959 and subsequent General Assemblies desirable statutory changes to simplify and improve such laws.
(b) Recommend Changes in Enforcement Procedures. – It shall be the duty of the Building Code Council to make a thorough and continuing study of the manner in which the building laws of the State are enforced by State, local, and private agencies. On the basis of such studies, the Council may recommend to the General Assembly any statutory changes necessary to improve and simplify the enforcement machinery. The Council may also advise State agencies as to any changes in administrative practices which could be made to improve the enforcement of building laws without statutory changes. (1957, c. 1138.)
§ 143‑143. Effect on certain existing laws.
Nothing in this Article shall be construed as abrogating or otherwise affecting the power of any State department or agency to promulgate regulations, make inspections, or approve plans in accordance with any other applicable provisions of law not in conflict with the provisions herein. (1957, c. 1138.)
§ 143‑143.1. Repealed by Session Laws 1971, c. 882, s. 1.
§ 143‑143.2. Electric wiring of houses, buildings, and structures.
The electric wiring of houses or buildings for lighting or for other purposes shall conform to the requirements of the State Building Code, which includes the National Electric Code and any amendments and supplements thereto as adopted and approved by the State Building Code Council, and any other applicable State and local laws. In order to protect the property of citizens from the dangers incident to defective electric wiring of buildings, it shall be unlawful for any firm or corporation to allow any electric current for use in any newly erected building to be turned on without first having had an inspection made of the wiring by the appropriate official electrical inspector or inspection department and having received from that inspector or department a certificate approving the wiring of such building. It shall be unlawful for any person, firm, or corporation engaged in the business of selling electricity to furnish initially any electric current for use in any building, unless said building shall have first been inspected by the appropriate official electrical inspector or inspection department and a certificate given as above provided. In the event that there is no legally appointed inspector or inspection department with jurisdiction over the property involved, the two preceding sentences shall have no force or effect. As used in this section, "building" includes any structure. (1905, c. 506, s. 23; Rev., s. 3001; C.S., s. 2763; 1969, c. 1229, s. 7; 1989, c. 681, s. 20.)
§ 143‑143.3. Temporary toilet facilities at construction sites.
(a) Suitable toilet facilities shall be provided and maintained in a sanitary condition during construction. An adequate number of facilities must be provided for the number of employees at the construction site. There shall be at least one facility for every two contiguous construction sites. Such facilities may be portable, enclosed, chemically treated, tank‑tight units. Portable toilets shall be enclosed, screened, and weatherproofed with internal latches. Temporary toilet facilities need not be provided on‑site for crews on a job site for no more than one working day and having transportation readily available to nearby toilet facilities.
(b) It shall be the duty of the Building Code Council to establish standards to carry out the provisions of subsection (a) of this section not inconsistent with the requirements for toilet facilities at construction sites established pursuant to federal occupational safety and health rules. (1993, c. 528.)
§ 143‑143.4. Door lock exemption for certain businesses.
(a) Notwithstanding this Article or any other law to the contrary, any business entity licensed to sell automatic weapons as a federal firearms dealer that is in the business of selling firearms or ammunition and that operates a firing range which rents firearms and sells ammunition shall be exempt from the door lock requirements of Chapter 10 of Volume 1 of the North Carolina State Building Code when issued a permit to that effect by the Department of Insurance in accordance with this section.
(b) The Department of Insurance shall issue a permit to a business entity specified in subsection (a) of this section for an exemption from the door lock requirements of Chapter 10 of Volume 1 of the North Carolina State Building Code if all of the following conditions are met:
(1) The building or facility in which business is conducted has a sales floor and customer occupancy space that is contained on one floor and is no larger than 15,000 square feet of retail sales space. Retail sales space is that area where firearms or ammunition are displayed and merchandised for sale to the public.
(2) The building or facility in which business is conducted is equipped with an approved smoke, fire, and break‑in alarm system installed and operated in accordance with rules adopted by the Department of Insurance. An approved smoke, fire, or break‑in alarm system does not have to include an automatic door unlocking mechanism triggered when the smoke, fire, or break‑in alarm system is triggered.
(3) The owner or operator of the business will provide to all applicable employees within 10 days of the issuance of the permit under this section or at the time the employee is hired, whichever time is later, a written facility locking plan applicable for the close of business each day.
(4) Each entrance to the building or facility in which business is conducted is posted with a sign conspicuously located that warns that the building is exempt from the door lock requirements of the State Building Code, and that after business hours the building or facility's doors will remain locked from the inside even in the case of fire.
(5) Payment o