Clark Pacific v. Krump Construction, Inc. (942 F. Supp. 1324, 1996)

ORDER

EDWARD C. REED, Jr., District Judge. Introduction

This is a dispute between Clark Pacific, a construction subcontractor on a public works project, Krump Construction, the general contractor, and Mr. Eric Raecke, Manager of the Nevada Public Works Board, which is responsible for awarding public works contracts in this State. Presently before the court for decision is Plaintiff Clark Pacific’s Motion for Preliminary Injunction (Doc. # 4). The court previously, by Order dated September 19, 1996 (Doc. # 10), issued a temporary restraining order against Defendants Krump Construction and Nevada Public Works Board Manager Erie Raecke, pending a hearing on the motion for preliminary injunction. The parties presented extensive evidence and argument at a hearing which commenced October 1, 1996 and concluded October 10, 1996. Having heard that evidence, and the parties’ arguments, the court is now prepared to issue its ruling on the motion for preliminary injunction.

Plaintiff Clark Pacific alleges both federal question and diversity jurisdiction. 28 U.S.C. §§ 1331, 1332. Clark Pacific claims that Defendants’ substitution of another construction subcontractor in its place violates its right under the Fourteenth Amendment to the United States Constitution not to be deprived of property without due process of law. Clark Pacific also claims a violation of its right under a Nevada statute not to be replaced as a public works construction subcontractor absent the existence of specific circumstances set out in that statute, and, as a citizen of California, invokes the court’s diversity jurisdiction over its suit against Krump, a Nevada corporation, and Eric Raecke, a Nevada public employee.

I. Facts

From the evidence adduced to date, the court makes the following findings of fact:

In May and June of 1996 the Nevada Public Works Board solicited bids for construction work to be performed at one of Nevada’s prisons, the Lovelock Correctional Center. The State planned additions to the Correctional Center consisting of new prisoner housing facilities and some modifications to the prison industries building. Only two companies bid for the prime contract; one was Clark & Sullivan, the other was Defendant Krump Construction. Under the terms of the solicitation documents, bids were to be submitted sealed, to be opened at two o’clock on the afternoon of June 18,1996 (“bid day”).

Clark Pacific, a California-based pre-cast concrete subcontractor, prepared a written bid to perform the design, manufacture, erection, alignment, welding and grouting of architectural precast concrete sandwich wall panels, interior walls, chases, floor and ceiling slabs, beams and columns for the three new prisoner housing units at Lovelock Correction Center. Early on the morning of June 18, Clark Pacific transmitted its bid form by electronic facsimile to Krump Construction and to Clark & Sullivan, omitting Clark Pacific’s base price. Such is standard practice in the construction industry: Bidders on public works subcontracts withhold their base price almost until the last minute, in order to give the general contractor no pre-bid-time opportunity to “shop” the subcontractors’ numbers to other subcontractors in the hope of obtaining a lower price.

Clark Pacific’s bid form was transmitted to Krump at 7:23 a.m. on bid day, June 18,1996. The Clark Pacific bid contained a number of qualifications and conditions including, of particular importance,

(1) the duration of the work to be performed by Clark Pacific. Clark Pacific’s bid contemplated a period of 125 days between the issuance by Krump of its “notice to proceed” and the commencement by Clark Pacific of precast concrete panel erection, and a period of 100 days for Clark Pacific to achieve “substantial completion” of its portion of the project;

(2) a requirement that the General Contractor provide 440-volt electrical power to the construction site for the welding together of the precast concrete panels;

(3) a requirement that the General Contractor provide and maintain all-weather access roads to the construction site;

(4) a requirement that the General Contractor provide “deadmen,” which are large concrete blocks designed to support temporarily the precast concrete panels until they can be welded into position.

During- the morning of June 18, 1996, Mark Robison, Clark Pacific’s Project Manager, phoned Rusty Heberger, Krump’s Project Manager, to confirm that Krump had received and reviewed Clark Pacific’s bid. Mr. Heberger told Mr. Robison that he had received the bid but had not yet reviewed it. Later the same morning Mr. Heberger telephoned Mr. Robison

(1) to determine the size of the deadmen required by Clark Pacific,

(2) to ascertain the number of coil rods required,

(3) to inquire whether Clark Pacific would stop work if progress payments were late,

(4) to discuss the liquidated damages provision of Clark Pacific’s bid,

(5) confer regarding Clark Pacific’s requirement that Krump provide electrical power for the welding, and

(6) to establish the maximum allowable markup to which Clark Pacific would be entitled on any orders changing the specifications on any portion" of Clark Pacific’s scope of work.

Mr. Robison advised Mr. Heberger that about 10,000 coil rods were needed, that he needed time to calculate the size of the dead-men, and that the maximum markup on change orders would be fifteen per cent.

At 11:34 a.m. Mr. Robison telephoned Mr. Heberger and informed him that he did not yet have the dimensions of the required deadmen, and further advised him that the provision by Clark Pacific of electrical welding power would add $20,000 to Clark Pacific’s base price.

At 1:14 p.m. Mr. Robison again telephoned Mr. Heberger and advised him that Clark Pacific would reduce the number of deadmen required from 500 to 300, and that Clark Pacific required three cubic yard deadmen for exterior walls and one cubic yard dead-men for interior walls. Mr. Robison then indicated to Mr. Heberger that Clark Pacific was adding a ninth “special condition” to its bid form. Special Condition No. 9 required the General Contractor to provide temporary heat at a minimum of fifty degrees Fahrenheit to allow proper curing of the grout used to join the precast concrete panels. This condition was designed to address the problem of pouring concrete in cold weather: Winters in Lovelock, Nevada, are bitter cold, too cold for concrete or grout to cure properly. The wet grout must be kept warm after it is applied to the joints between the precast panels, either by applying hot blankets to the surface of the material, or by heating the surrounding air. Mr. Robison read Special Condition No. 9 to Mr. Heberger and asked him to note it on the bid form, which Mr. Heberger did, in his own handwriting, on the bid form which had been transmitted by Clark Pacific to Krump earlier that morning.

During this conversation Mr. Heberger asked Mr. Robison if the 100 days for completion of concrete panel erection were 100 calendar days or 100 working days. Mr. Robison responded that the 100 days were calendar days, but that the 100 days did not include total completion of alignment, welding and grouting; and that “total” completion of erection would occur within approximately 30 days after substantial completion. Mr. Heberger objected and indicated that Krump would require total completion 100 days of the erection start date. Mr. Robison said he could promise Clark Pacific would try to minimize completion time, but he did not agree to revise Clark Pacific’s bid to incorporate a guarantee of total completion within 100 days of the erection start date.

At 1:47 p.m. on June 18,1996, only minutes before the time set by the State for opening of the sealed bids, Mr. Robison telephoned Mr. Heberger with Clark Pacific’s base price in the amount of $4,625,000.00.

At 2:00 p.m. June 18, 1996, the bids were opened. Krump was determined to be the low bidder. Krump had listed Clark Pacific as its pre-east concrete subcontractor, in accordance with the requirement of both the owner’s solicitation documents and Nevada statutory law that general contractors bidding on public works construction projects list in its prime bid the name of each subcontractor to be paid at least five percent of the general contractor’s total bid.

Two days later, at 4:00 o’clock p.m. on June 20, 1996, Mr. Heberger, by electronic facsimile, transmitted a handwritten letter to Mr. Robison setting forth what he described as the “basics of the contract,” and indicating that a copy of the proposed subcontract with Krump would be sent to Clark Pacific the following day. Mr. Heberger’s June 20 letter contained 16 adjustments to the terms of the proposed precast concrete subcontract. Five of these items later became the bones of contention between Clark Pacific and Krump; Clark Pacific objected to these adjustments on the grounds that they were inconsistent with the terms of its bid. These five items were:

(1) a $10,000.00 reduction in Clark Pacific’s bid price;

(2) the transfer of the responsibility to provide deadmen, which under Clark Pacific’s bid was an obligation of the general' contractor, from Krump to Clark Pacific;

(3) a reduction of the period between issuance of the notice to proceed and commencement of precast concrete panel erection, from the 125 days provided in Clark Pacific’s bid to 111 days;

(4) the deletion of Krump’s obligation, as set forth in Clark Pacific’s bid, to provide all weather access roads to the site; and

(5) the elimination of Krump’s responsibility, as set forth in Clark Pacific’s bid, to provide 440-volt electrical power for Clark Pacific’s welding.

On June 21, 1996, Mr. Robison sent Krump Clark Pacific’s response to Mr. Heberger’s letter of June 20, 1996. In his letter Mr. Robison

(1) called attention to the fact that Mr. Heberger’s letter had reduced the bid price by $10,000;

(2) reminded Krump that Clark. Pacific’s bid was based on Krump’s providing 500 deadmen; Clark Pacific promised to work with Krump in reducing the number of deadmen required to the extent Clark Pacific would not thereby incur any additional costs;

(3) indicated that under the terms of Clark Pacific’s bid Krump was to construct and/or maintain all-weather access roads, and further indicated that Clark Pacific had not included in its base price the cost of providing such roads;

(4) informed Krump that Clark Pacific’s bid required the provision of 440-volt electrical power for its welders, and that if Clark Pacific were to provide the 440 volt power it would cost Krump an additional $20,000; and

(5) agreed that Clark Pacific would attempt to shorten the time to commence construction, and requested help from Krump in this regard, but indicated that it was at this early stage impossible to determine how much, if any, improvement in the erection start date schedule was feasible.

Clark Pacific attached a copy of its original bid form to this June 21, 1996 letter. The copy of the bid form did not contain Special Condition No. 9 regarding temporary heat. But Mr. Robison testified that that special condition had been telephoned in to Krump prior to bid time and was noted by hand by Rusty Heberger on Clark Pacific’s bid form. The fact that Special Condition No. 9 does appear on Krump’s bid day copy of Clark Pacific’s bid, in the handwriting of Krump’s Project Engineer, Rusty Heberger, constitutes strong evidence that Special Condition No. 9 was in fact communicated by Clark Pacific to Krump prior to the opening of the bids, and the court so finds.

On June 24, 1996, Clark Pacific received the proposed precast concrete subcontract from Krump. This subcontract contained each of the modifications to the Clark Pacific bid which appeared in Mr. Heberger’s letter of June 20 to Clark Pacific. On June 24, 1996, Mark Robison telephoned Mr. Heber-ger (1) to discuss the proposed subcontract; (2) to determine if Krump had received Clark Pacific’s response dated June 21, 1996; and (3) to confirm a meeting of the parties scheduled for June 26,1996.

Mr. Heberger told Mr. Robison that if Krump had to pay for the disputed items, that Clark Pacific would no longer be the low bidder, and that Krump was already negotiating with another pre-cast concrete subcontractor. This statement suggests that Krump had already obtained a lower precast concrete subcontract price, including the cost of the disputed items, from Buehner Corporation, one of Clark Pacific’s competitors, else Krump could not have claimed with confidence that Clark Pacific would, in the event Clark Pacific did not agree to perform the additional work without additional compensation, no longer be the low bidder on the precast concrete subcontract.

Later the same day, June 24, 1996, Mr. Robison and Mr. Thomas Tucker, Clark Pacific’s Managing Engineer for Liability and Contracts, placed a telephone call to Defendant Eric Raeeke, Manager of the Nevada Public Works Board, to express their concern that Krump might be engaged in illegal bid shopping. Mr. Raeeke assured Mr. Robison and Mr. Tucker that Clark Pacific was protected against wrongful substitution under the Nevada subcontractor listing law. Mr. Raeeke informed Robison and Tucker that Krump had not at that time made any request for substitution of Clark Pacific by another subcontractor, and he promised to let them know if Krump did so.

On June 26, 1996, a meeting was held at the Reno offices of Krump Construction. Attending on behalf of Clark Pacific were Mr. Donald Clark, co-owner and General Operations Manager of Clark Pacific, and Mr. Mark Robison, Clark Pacific’s Project Manager for the Lovelock project. Representing Krump Construction were Mr. Rusty Heber-ger, its Senior Project Manager, and Mr. Ron Deal, Rrump’s Project Superintendent. By the conclusion of the June 26,1996 meeting all the outstanding issues between Krump and Clark Pacific appeared, at least to Clark Pacific’s representatives, to have been settled, with the exceptions of the issues regarding welding power, Errors and Omissions coverage, and the project schedule.

Before the June 26, 1996 broke up, Mr. Bruce Gordon of Krump presented to the Clark Pacific representatives a schedule of work for the project which appeared to be in accordance with Clark Pacific’s bid. Mr. Gordon asked the Clark Pacific people to review this schedule and then to contact Krump Construction. Krump offered testimony that it offered Clark Pacific this schedule not as a proposed schedule, but rather with the request that Clark Pacific “see what it could do” to improve on the dates it contained. But Bruce Gordon himself testified that he could not recall precisely how the June 26 schedule was submitted to Clark Pacific, or whether anyone had made such contemporaneous representations regarding the purpose of giving Clark Pacific this schedule, or whether Clark Pacific was aware that the schedule was being offered for review, rather than for approval. Mr. Gordon did testify that Mr. Heberger had asked that the word “preliminary” be written on the front of the schedule, but the copy admitted in evidence contains no such notation. The court finds that the schedule presented to Clark Pacific at the June 26 meeting was presented as a proposed schedule on behalf of Krump.

On July 3, 1996, Mr. Heberger and Mr. Deal telephoned Mr. Tucker and Mr. Robi-son. During this telephone call Mr. Heber-ger announced (1) that Krump would not construct or maintain any all-weather access roads; (2) that Krump’s project schedule given to Clark Pacific at the June 26 meeting was unacceptable, and that Krump had now prepared a new schedule; (3) that Krump would only pay $10,000 for welding power. In addition, Krump apparently reneged on the agreements reached on June 26 regarding the construction and maintenance of all-weather access roads, and on the provision of temporary heat for the curing of grout. Finally, Krump apparently also refused to accept Clark Pacific’s approval of the project schedule it had been provided at the June 26, 1996, meeting; Krump now objected to the erection start date and completion duration set out in the June 26 schedule.

Hearing this news, Clark Pacific requested a copy of the “new” Krump schedule, and Mr. Heberger said he would “get it right out.” Curiously, Clark Pacific did not receive a copy of this revised work schedule until July 9, 1996. Clark Pacific’s erection start date in the new Krump schedule was 17 days earlier than Clark Pacific’s bid and 17 days earlier than the date contained in the June 26 schedule. In other words, Clark Pacific would have to have completed manufacture of the precast concrete panels, and have delivered them to the jobsite almost three weeks earlier than was contemplated under the terms of its bid.

In the meantime, Clark Pacific engineers continued to prepare shop drawings and perform engineering calculations, as was Clark Pacific’s usual practice during such negotiations. Because the Lovelock Project was the third time Clark Pacific had been employed as precast concrete subcontractor on projects where Krump had been the general contractor, it seems reasonable to infer that Krump would have known that Clark Pacific was performing this preparatory work, at considerable expense. Such an inference permits the further inference that by exploiting, if not intentionally creating this delay, Krump was strengthening its own hand in the negotiations; the more work Clark Pacific performed prior to executing a subcontract, the greater incentive it would have to cave in to Krump’s demands for various — and costly— concessions.

On July 10, 1996, Clark Pacific responded with a proposed work schedule of its own, which maintained 125 days to start work and 100 days from commencement of erection to substantial completion; but provided for “total” completion from commencement of erection within 103 days, approximately 27 days sooner than the 130 days for total completion which Mr. Robison told Mr. Heberger Clark would perform prior to the bid opening.

Later that same day, July 10, 1996, Don Clark of Clark Pacific had another telephone conversation with Ron Deal and Rusty He-berger of Krump. In that conversation Mr. Clark offered:

(1) to attempt to use 220 volts of electricity for Clark Pacific’s welders; but still insisted on the $20,000 if Clark Pacific was to provide its own electricity; and

(2) to provide Krump with a price for the provision of temporary heat for curing the grout; however, he

(3) refused to guarantee total completion of erection, alignment, welding and grouting within 100 days, as requested per Krump’s July 3, 1996, schedule (which had not been received by Clark Pacific until July 9,1996).

The next day, July 11, 1996, Don Clark advised Krump that he had been unable to calculate an accurate price for providing temporary heat and would, therefore, stand upon Special Condition No. 9 in Clark Pacific’s bid, requiring Krump to provide the temporary heat. After July 10 Krump made no further communication or contact with Clark Pacific concerning the disputed issues or the subcontract.

On July 12,1996, Ron Krump, president of Krump Construction, returned from his vacation and found that the negotiations between Krump and Clark Pacific had reached an impasse. It is clear that by this date Krump had been for some time conducting negotiations ■ with Buehner Corporation, at least since before June 24, 1996, and likely commencing immediately after bid day, in order to reach an agreement on precast concrete manufacture on terms more favorable to Krump than those contained in Clark Pacific’s bid. Although Mr. Ron Krump denied under oath that Krump Construction had initiated any post-award negotiations with Buehner Corporation, Buehner’s own letter to Krump dated July 1, 1996, addressed to Mr. Ron Deal, begins, “Thank you very much for your interest in Buehner Corporation. ...” This evidence convinces the court that it was Krump, not Buehner, who first opened the lines of communication. What is more, the electronic facsimile heading on this document indicates transmission at 9:34 a.m., July 1, 1996. Buehner’s letter is accompanied by six separate attachments, including a proposed preliminary schedule for the Lovel-ock project, a letter dated July 1, 1996 from Union Pointe General Contractors recommending Buehner’s work on a previous Utah project, and a schedule of commercial airline flights between Salt Lake City and Reno, which Buehner obtained for the purpose of encouraging any three Krump representatives to fly to Salt Lake, all expenses paid, for a tour of Buehner’s facilities. It seems to the court extraordinarily implausible that Buehner could have received Krump’s expression of “interest” in Buehner that Monday morning, July 1. The very latest Krump could have contacted Buehner, in time to enable Buehner to compose its detailed response, was the previous Friday, June 28, 1996. It seems to the court not even remotely possible that on June 28, 1996 — a total of four days after submitting its proposed subcontract to Clark Pacific — Krump could have made a convincing argument that Clark Pacific had already become so intractable and adamantine in its subcontract negotiations that Krump should at that early stage have been entitled, under the terms of Nevada’s law regarding substitution of listed public works subcontractors, to dump Clark Pacific as its precast concrete subcontractor. Indeed, Mr. Ron Krump himself testified that a “reasonable time” for general and sub to execute a subcontract might be three weeks after bid day. Less than one week after bid day, and less than one day after submitting a proposed subcontract, Krump Construction had already informed Clark Pacific that it had entered into negotiations with a substitute precast contractor.

Mr. Krump testified that by July 12 he fully intended to replace Clark Pacific, and it is obvious he intended to replace Clark Pacific with Buehner. Mr. Krump acknowledged he knew Buehner was in dire financial straits, indeed, on the very verge of bankruptcy. Buehner appeared a soft target; Krump could shop Clark Pacific’s bid to Buehner, who would almost certainly shave their profits to near zero simply to maintain cash flow, and thus avoid bankruptcy while undercutting Clark Pacific’s bid. On July 12, a meeting was held between Mr. Heber-ger, Mr. Deal and Mr. Roger Arnell, representing Buehner Corporation. Mr. Krump had instructed Mr. Heberger and Mr. Deal to determine whether Buehner could meet Krump’s requirements with respect to the schedule, temporary heat, grouting, and welding power, and to inquire into the status of Buehner’s Nevada subcontractor’s license.

On Monday, July 15, 1996 Ron Krump directed Mr. Heberger to make a formal request for substitution. Mr. Heberger prepared a letter dated' July 15, 1996, to the Project Architect, Charlie Grundy, requesting substitution of Buehner for Clark Pacific as pre-cast contractor. Perhaps coincidentally, or perhaps through some clairvoyance, Don Clark told Tom Tucker on July 15, 1996 that he was concerned about the progress of Clark Pacific’s negotiations with Krump Construction; Clark told Tucker he thought “something was going on.” Tucker tried telephoning Ron Deal on July 15 and 16, but was unable to reach Mr. Deal, and his messages went unanswered. Tucker then decided to contact Eric Raecke at the Public Works Board, after seeing Mr. Raecke’s name on the solicitation documents, and the two spoke late in the day on Tuesday, July 16,1996.

Mr. Tucker asked Mr. Raecke whether Krump had submitted any request to substitute Clark Pacific off the Lovelock Project, and Mr. Raecke denied knowing of any such request. Mr. Raecke and Mr. Tucker discussed the Nevada subcontractor listing law, and Mr. Raecke expressed his understanding that law provided only a few narrow grounds upon which a general public works contractor could substitute a listed subcontractor. Mr. Raecke indicated he “felt strongly” about adhering to the law’s requirements, and volunteered to mediate between Clark Pacific and Krump. Mr. Raecke knew there was as yet no agreement between Clark Pacific and Krump Construction, he knew which terms still remained in dispute, and knew there had been a breakdown in communication. Nevertheless, according to his testimony, Mr. Raecke believed on July 16, 1996, that the parties were close to reaching an agreement.

On July 17, Mr. Heberger called Don Clark to request Clark Pacific’s price for accelerating completion of the project from the 380 days provided in the bid solicitation documents to 330 days. Mr. Clark replied that he would look into the matter; on July 17 Clark Pacific sent Krump its accelerated price: $150,000.00. On July 18, Don Clark called Mr. Heberger to see if he had received the acceleration price. Mr. Heberger told Mr. Clark that Krump had first to work out the accelerated project schedule with the State before it would be able to execute a subcontract with Clark Pacific. By this time Clark Pacific had several engineers working full time on shop drawings and engineering calculations. During his July 17 and 18 conversations with Clark Pacific, Mr. Heberger failed to mention Krump’s pending request to substitute Clark Pacific off the Lovelock project.

On the same day, July 18,1996, Mr. Grundy, the Project Architect, transmitted to the Public Works Board Krump’s letter of July 15, 1996 requesting permission to substitute Buehner Corporation for Clark Pacific. It was at this moment that Public Works Board Manager Raecke first saw Krump’s request for substitution. In the interim, Krump had apparently realized, or was told, that a request for substitution of a listed subcontractor must be made to the Public Works Board, rather than to the Project Architect, and so on that same day, July 18, 1996, Mr. Heber-ger prepared and sent a new letter to the Public Works Board, requesting the substitution of Buehner for Clark Pacific as precast concrete subcontractor. In his July 18 letter to the Public Works Board Mr. Heberger indicated that Clark Pacific’s acceleration price was $150,000, whereas Buehner would do it for nothing. Mr. Heberger cited as Krump’s reasons for requesting substitution (1) Clark Pacific’s refusal to obtain “Errors and Omissions” insurance for their design work, (2) Clark Pacific’s demand that Krump supply temporary heat for grouting, which Mr. Heberger misrepresented to Mr. Raecke had not been a term of Clark Pacific’s June 18 bid, (3) Clark Pacific’s refusal to pay for Krump’s extended field overhead resulting from any delay caused by Clark Pacific, and (4) an “increase” in Clark Pacific’s erection schedule from 100 to 128 days.

Mr. Raecke spoke with Mr. Heberger by telephone on July 18, told Mr. Heberger he had now received Krump’s request for substitution. Mr. Heberger indicated to Mr. Raecke that the parties were still “very far apart” on the terms of the precast concrete subcontract, especially with respect to the project schedule. Mr. Raecke told Mr. He-berger that he would make his decision on the matter the following week, apparently still hoping the parties could reach an agreement.

On Friday,. July 19, 1996, and again on Monday, July 22, 1996, Don Clark or representatives of Clark Pacific tried repeatedly to telephone Mr. Heberger, but failed to reach him, and their messages went unanswered.

On July 22,1996, Krump sent by electronic facsimile another letter to Mr. Raecke, asking for a decision on the request for substitution, and stating that it was “absolutely critical” that Krump be permitted to substitute Buehner for Clark Pacific “right away.” On this day Mr. Raecke was preparing to leave town; he testified that at this point he “really wanted to get this issue behind us.” On July 22, 1996, Mr. Raecke attached a “Post-It” adhesive note to Krump’s July 22 letter, directing his assistant, Dan Daily, to approve Krump’s request for substitution, which Mr. Daily apparently did, because on July 23, 1996, Krump sent Mr. Raecke written confirmation of its receipt of the Public Works Board’s written approval of Krump’s substitution request. Mr. Raecke did not prior to instructing Mr. Daily to approve the substitution request conduct any inquiry into the reasons for the parties’ inability to contract; it was apparently his judgment that the failure of the parties to reach an agreement within thirty days of the award of the prime contract by itself constituted grounds to approve the substitution. Mr. Raecke did ask Mr. Heberger whether the subcontract offered to Clark Pacific contained the same general terms as those offered to other subcontractors, and was satisfied when Mr. He-berger said, ‘Tes.”

On July 23,1996, Clark Pacific was notified by Mr. Ron Deal of Krump Construction that Krump had substituted Clark Pacific out of the Lovelock project.

Later the same day, July 23, 1996, Don Clark did reach Mr. Raecke by telephone. In response to Mr. Clark’s questions, Mr. Raecke said that he had received a request from Krump to substitute Clark Pacific out of the Lovelock project, and that Krump had begun, with Mr. Raeeke’s authorization, to negotiate the terms of a precast concrete subcontract with another company. Mr. Raecke testified on direct examination that he kept from Mr. Clark the fact that he had, in fact, already instructed his assistant to approve the request. Mr. Raecke’s explanation for being less than candid was his “faint hope” that perhaps the parties could still reach agreement, in which ease he would have canceled his instructions to Mr. Daily to send Krump written authorization to substitute Buehner for Krump.

On July 24, 1996 the Public Works Board Project Manager Dan Daily sent Rusty He-berger official written approval of Krump’s request to substitute Buehner for Clark Pacific. Mr. Daily sent courtesy copies to the Project Architect, to Eric Raecke, and to Chief Deputy Attorney General Jonathan Andrews, but not to Clark Pacific.

On July 26, 1996, Don Clark drove to Carson City and arrived unannounced at Mr. Raecke’s office at the Public Works Board. Mr. Raecke was out of the office. Mr. Clark found Dan Daily, who showed him Krump’s July 15 and July 18 letters requesting approval of the substitution, as well as the Public Works Board’s written approval dated July 24, 1996, and gave Mr. Clark copies of these documents. Mr. Raecke arrived in the Public Works Board offices at approximately 5:00 p.m.; Mr. Clark remonstrated with Mr. Raecke over the substitution, and Mr. Clark departed after extracting from Mr. Raecke promises (1) not to take a final decision on the matter until Clark Pacific had a full opportunity to present its side of the dispute, (2) to communicate Clark Pacific’s position to Mr. Ron Krump and (3) to maintain contact Mr. Clark over the next few days. Mr. Raecke told Don Clark, ‘Tou guys are big boys and I’m not your father; you guys will have to settle this thing yourselves.”

Buehner Corporation was, in fact, ineligible to replace Clark Pacific as precast concrete subcontractor; on July 23, 1996 Bueh-ner was not a licensed subcontractor. Nev. Rev.Stat. § 338.145 (prohibiting award of public works contract to unlicensed contractor). Mr. Raecke admitted that he failed to verify Buehner’s license status prior to granting Krump’s substitution request; subsequent to being informed by Clark Pacific’s attorney, by letter dated July 25, 1996, that Buehner had no Nevada contractor’s license, Mr. Raecke was forced to rescind his approval of the substitution by letter from Dan Daily to Krump Construction dated July 30, 1996. On that day, after learning of the State’s rescission of the substitution request, Mr. Don Clark telephoned Mr. Ron Krump to confirm the rescission of Buehner’s substitution, and to reaffirm to Krump that Clark Pacific remained ready, willing and able to perform its portion of the Lovelock project. Mr. Krump was unavailable, so Mr. Clark left a message, to which Mr. Krump did not respond. The following day, July 31, 1996, Tom Tucker wrote to Ron Deal at Krump Construction, reiterating Clark Pacific’s readiness to perform the work, and requesting an immediate meeting between the parties to resolve the outstanding subcontract issues. Mr. Tucker indicated Clark Pacific’s willingness to commence precast concrete panel erection 111 days after receiving a notice to proceed — in essence capitulating to the terms of Mr. Heberger’s June 20 letter seeking a two-week advance on the erection start date over the date set out in Clark Pacific’s original bid.

Krump Construction renewed its quest to oust Clark Pacific from the Lovelock Project. By letter dated August 1, 1996 from Rusty Heberger to Eric Raecke, Krump recharac-terized its July 18 substitution request as seeking to employ Buehner as “precast supplier,” and to employ Bragg Crane as erector, plainly attempting to circumvent Bueh-ner’s lack of a Nevada contractor’s license: Unlike a true contractor, a mere furnisher of materials need not be licensed to participate in public works construction projects. Nor, for that matter, does a materials supplier enjoy the protection of the listing statute.

During the latter portion of the same week, probably either Thursday, August 1 or Friday, August 2, Tom Tucker spoke with Eric Raecke. Mr. Raecke informed Mr. Tucker that he was in the process of responding to Clark Pacific’s concerns, as expressed in its own letters and several letters to Mr. Raecke from Clark Pacific’s attorney. During this conversation Mr. Raecke denied having received Krump’s renewed substitution request, but did indicate that he was inclined to approve such a request if it contemplated using Buehner only as a material supplier, with the actual erection left to Krump itself or to a licensed erection contractor.

Some time after 5:00 p.m. on August 5, 1996, Mr. Raecke telephoned Don Clark to inform him of a meeting between the parties, at which Mr. Raecke would be present, scheduled the next day, August 6, 1996, at the Public Works Board in Carson City to attempt to resolve the matter.

On the afternoon of August 6, 1996, the parties met at the Public Works Board at Carson City. Present at the meeting were Donald Clark and his attorney, Ron Krump, Rusty Heberger, attorneys for Krump Construction, Erie Raecke, and a Deputy Attorney General, representing the Public Works Board. Clark Pacific’s representatives arrived intending to offer Krump substantial concessions in an effort to retain their employment on the Lovelock project. Mr. Raecke asked whether Clark Pacific had a reasonable opportunity to agree on terms, and attempted to provide the parties a chance to state their case. Clark Pacific’s attempts to question Mr. Heberger regarding the misstatements of fact in Krump’s letters requesting substitution were stymied, however, when Mr. Springer, Krump’s attorney, refused to allow any “cross-examination” of his client’s employees.

Krump Construction offered as its reason for requesting substitution Clark Pacific’s refusal to agree to the terms of the July 3 schedule. Clark Pacific then agreed to meet all the terms of the July 3 schedule, despite substantial additional cost to Clark Pacific. Ron Krump expressed his concern that there had been “too much water under the bridge” for Krump and Clark Pacific to come to terms. At the meeting Ron Krump gave Clark Pacific the distinct impression he was uninterested in further negotiations. Mr. Raeeke announced that he would render a final decision by August 9, 1996, and encouraged the parties to negotiate. Mr. Raeeke and his attorney then excused themselves, offering the Public Works Board conference room to the parties should they wish to continue negotiating. Mr. R,aecke’s impression on leaving the meeting was that Clark Pacific appeared prepared to make “rather large concessions” in their efforts to keep their subcontract alive. Ron Krump promised Don Clark he would let him know the next day whether Krump would still agree to use Clark Pacific on the project.

The next day, August 7, 1996, Mr. Krump did telephone Don Clark, and admitted that Krump had issued a notice to proceed to Buehner Corporation “weeks” earlier, and that therefore Clark Pacific was out. On August 13, 1996, Mr. Raeeke notified Mr. Ron Deal of Krump Construction of the Public Works Board’s approval of Krump Construction’s request to substitute Buehner Corporation as material supplier and Bragg Crane as erection contractor. Mr. Raeeke testified that he approved Krump Construction’s request for substitution on the grounds (1) that the parties had been unable to reach agreement; and that a reasonable period of time had passed for negotiations, and (2) that Clark Pacific had a reasonable period of time to approve the subcontract which had been tendered by Krump. Mr. Raeeke testified that he accepted the representation of Krump that the subcontract tendered to Clark Pacific contained essentially the same provisions as the Clark Pacific bid; and that that subcontract was essentially the same as the form of subcontract tendered to the other subcontractors on the Lovelock project.

The letters from Clark Pacific’s attorneys to Mr. Raeeke had, however, previously called Mr. Raecke’s attention to the fact that the subcontract tendered by Krump to Clark Pacific was not in accordance with the terms of Clark Pacific’s bid; the court finds that the terms of the subcontract tendered by Krump to Clark Pacific deviated significantly and materially from the terms of Clark Pacific’s bid.

On August 19, 1996, Krump Construction requested a fourteen-day extension from the Public Works Board; Krump claimed a delay caused by the Board’s consideration of Krump’s renewed substitution request, following the Board’s rescission, after learning of Buehner’s ineligibility for substitution, of its earlier approval.

On the same day, August 19, Krump Construction sent Bragg Crane a proposed subcontract agreement, with a base price of $1.05m. Under the Bragg Crane erection subcontract, Bragg Crane was to provide its own deadmen, its own power (either gas or electric) for its welders, and temporary heat for curing the grout. The Bragg subcontract noted that the only access to the jobsite would be “the natural ground as it currently exists,” and further required total completion of erection, including alignment, welding and grouting within 114 days of the erection start date of October 21,1996.

On August 27, 1996 Krump Construction sent Buehner Corporation a purchase order for precast concrete panels with a total price of $3.415m. The Buehner purchase order indicated that Krump had already issued Buehner a notice to proceed on July 22, 1996 — in other words, on a date when Bueh-ner’s substitution had been authorized by the Public Works Board on the erroneous premise that Buehner was a licensed Nevada subcontractor. Under the terms of the purchase order, Buehner was to have completed all manufacture and delivery of precast concrete panels, and to begin panel erection 91 days after the July 22 notice to proceed.

II. The Subcontractor Listing Statute

More than in many other businesses, public works construction contracting is a game of minutes. The owner solicits bids from general contractors, to be submitted sealed, and then opened together on an appointed date and hour, with the prime contract going to the lowest bidder. In the interval between solicitation and “bid day,” prospective general contractors solicit bids from competing subcontractors for the various portions of the particular project falling within the subcontractors’ respective specialties, e.g. plumbing, steel erection, fire protection. Subcontractors withhold their bids until nearly the last possible moment, hoping to avoid giving the prime contractors time to “shop” the subs’ bids around before bid time in search of a lower price. Prime contractors then have only hours, sometimes only minutes, to prepare their own prime bid based upon the last-minute bids of perhaps dozens of subcontractors. Because a prime contractor’s bid binds it to the owner, the prime contractor must be able to rely upon the sub-bids; a sub who is listed by the general contractor in the prime bid is liable to the prime contractor should the sub later withdraw. Drennan v. Star Paving Co., 51 Cal.2d 409, 333 P.2d 757 (1958) (Trainor, C.J.).

The rule of Drennan gives winning generals considerable bargaining power over listed subs: The prime contractor is legally entitled to performance of all the subcontracts relied upon in making the prime bid, but the subcontractors are entitled to no protection against the prime contractor’s continuing to shop around, even after the award of the prime contract, for cheaper subs. Norcross v. R.W. Winters, 209 Cal.App.2d 207, 25 Cal.Rptr. 821, 828 (1962); see also Stano v. Soldo Constr. Co., 187 N.J.Super. 524, 455 A.2d 541 (App.Div.1983); Justin Sweet, Legal Aspects of Architecture, Engineering, and the Construction. Process 631-32 (4th ed. 1989).

The drive to enact state statutes requiring listing of subcontractors on public works project, and limiting the grounds for post-award substitution of listed subcontractors, came about at least in part because of pressure from subcontractors’ trade associations, see, e.g., Coast Pump Assocs. v. Stephen Tyler Corp., 62 Cal.App.3d 421, 133 Cal.Rptr. 88, 91 (1976) (recognizing goal of subcontractor listing statute to be protection of original subcontractor against substitution), but also because of the indirect effects of ruthless bid-shopping, which include poor workmanship provided by subcontractors who, desperate to retain their subcontracts, shave their profits and expenses below a level which guarantees quality work, subcontractors’ insolvencies, and construction workers’ lost wages. See, e.g., R.M. Sherman Co. v. W.R. Thomason, Inc., 191 Cal.App.3d 559, 236 Cal.Rptr. 577, 582 (1987); E.M. Watkins & Co. v. Board of Regents, 414 So.2d 583, 587 (Ct.App.Fla.1982); Bay Cities Paving and Grading, Inc. v. Hensel Phelps Constr. Co., 56 Cal.App.3d 361, 128 Cal.Rptr. 632, 634 (1976); Kuhn Constr. Co. v. Delaware, 366 A.2d 1209, 1214 (Del.Ch.1976); see also Robert Duffy, Stalling on Sub-Bid Law Will Cost, Boston Bus. J., April 8, 1991, at 10. In addition, subeon-tractors who expect bid-shopping may pad their bids to give themselves a negotiating “cushion” which will permit them to make subsequent concessions and still salvage some of their profit margin. Diana Granitto, Bid Shopping, Contractor, June 1989, at 45.

On July 12, 1993, the Nevada Legislature passed Senate Bill 474. S.B. 474 is Nevada’s subcontractor listing law, requiring general contractors bidding on public works projects to include in their bid the names of major subcontractors, and narrowly circumscribing the grounds upon which a listed subcontractor can later be substituted out of the project. In enacting S.B. 474, the legislature announced that it

finds and declares that it is the policy of this state to ensure that the public receives the full benefits of fair competition among contractors and subcontractors in public works and has therefore enacted NRS 338.140 [sic] to limit the practice of shopping for bids for the construction, alteration and repair of public improvements.

Act of July 12, 1993, eh. 514, § 1, 1993 Nev. Stat. 2130 (codified in part at Nev.Rev.Stat. Ann. § 338.144 (Miehie 1994)).

Before voting on S.B. 474, the legislature solicited testimony from interested citizens. Senator O’Connell, chair of the Nevada State Senate Committee on Government Affairs, which had jurisdiction over S.B. 474, requested Ms. Pamela Miller, a lobbyist for the Associated General Contractors' of America (“AGC”) (an organization which, presumably, would not tend to exalt the interests of subcontractors over those of general contractors) to “outline” the bill as reported out of his committee.

On May 5,1993, Ms. Miller testified before the Committee on Government Affairs. Ms. Miller portrayed S.B. 474 as an attempt to reconcile the concerns of the various groups involved in soliciting, bidding, contracting, and executing public works construction projects. Ms. Miller read Section 1 of S.B. 474 (quoted in full, supra) as expressing the legislative judgment “that bid shopping is not a practice the state wants as part of public works projects.” She further informed the Committee that “the construction industry believes bid shopping gives an unfair advantage to those involved [i.é. general contractors who shop bids and subcontractors who peddle bids], is unethical and is adamantly opposed to the practice.” Hearings on S.B. 474 before the Comm, on Gov’t Affairs, 67th Nev.Legis.Sess. (1993).

Ms. Miller reappeared before the Committee on May 24, 1993, to give further testimony in support of S.B. 474. Once again, Ms. Miller read Section 1 to imply that the legislature considered bid shopping “not an ethical practice,” and that “it shall not be done during the bidding procedure.” Ms. Miller explained S.B. 474 as “an attempt to accommodate the small contractor and offer protection to subcontractors on public works jobs.” Hearings, id. The Committee also heard from Mr. Chris Denning, a member of the Las Vegas chapter of the AGC. Mr. Den-ning testified he had personally worked with Ms. Pamela Miller, the AGC’s lobbyist, on the amended language of S.B. 474, and he urged the Committee to support the bill. Id. Mr. Denning’s opinion was echoed by Mr. Jesse Paulk, a Las Vegas general contractor, by Mr. Jack Jeffrey of the Southern Nevada Building and Trade Council, by Mr. Alan Glover, a lobbyist for Helms Construction, and by Ms. Elaine McNeil, representing the Southern Nevada and Sierra Nevada chapters of the Associated Builders and Contractors.

The Nevada State Senate approved S.B. 474 by a vote of 20-1-0; the Nevada State Assembly approved the bill by a vote of 42-0-0. S.B. 474 became effective October 1, 1993.

Under the terms of this statute, a listed subcontractor on a public works contract may be replaced after the awarding of the general contract if the awarding authority itself objects to the original subcontractor, requests in writing that the prime contractor find a replacement subcontractor, and absorbs any resultant increase in cost. Absent an objection by the awarding authority, a listed subcontractor may be replaced only with the approval of the awarding authority, which approval may be granted only on one of the following grounds:

(1) The subcontractor, after having a reasonable opportunity, fails or refuses to execute a written contract with the contractor which was offered to the subcontractor with the same terms that all other subcontractors on the ■project were offered;

(2) the named subcontractor files for bankruptcy or becomes insolvent; or

(3) the named subcontractor fails or refuses to perform h[er] subcontract within a reasonable time or is unable to furnish a performance and payments bond pursuant to NRS 339.025.

Nev.Rev.Stat. § 338.144(3)(b) (emphasis supplied).

As the court noted in its prior Order dated September 19, 1996 (Doc. #10), Defendant Krump Construction offers no evidence that grounds (2) or (3) should permit it to substitute Buehner Corporation and Bragg Crane for Plaintiff Clark Pacific; Krump’s only col-orable claim of valid substitution must fall within ground (1). The court’s dilemma concerns the proper construction of this portion of the listing statute. Quite obviously, a literal application of ground (1) would lead to absurd results: It is utterly impossible, for example, that the listed electrical subcontractor will be offered a contract “with the same terms that all other subcontractors on the project” will be offered. The electrical subcontract’s terms will necessarily differ from the plumbing subcontract’s terms, the structural steel subcontract’s terms, and so on. Each subcontract with each different building trade will contain very different terms. The electrical subcontract will contain no references to toilets or sewers, the plumbing subcontract will contain no terms regarding fire and smoke detectors, the structural steel subcontract will contain no specifications for electrical conduits, and so on. A literal reading of Nev.Rev.Stat. § 338.144(8) (b)(1) would therefore prevent general contractors ever from justifying substitution of a listed subcontractor on the grounds that after having had a reasonable opportunity the subcontractor failed or refused to enter into an agreement on the same terms as offered all other project subcontractors: There will never be a public works construction project on which all subcontractors will be offered contracts on identical terms.

The court has jurisdiction over the subject matter of this action by virtue of the diversity of the citizenship of the parties. 28 U.S.C. § 1332. The court is therefore bound to apply the substantive law of the State of Nevada. 28 U.S.C. § 1652; Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938); Gee v. Tenneco, Inc., 615 F.2d 857 (9th Cir.1980). The court is unfortunately faced with the unusual problem of construing a Nevada statute, unaided by previous construction by courts of the State, whose “articulation of the rule or policy is so incomplete that it cannot clearly be said to speak to the situation in issue.” 2A Sutherland Statutory Construction § 45.08, at 42 (5th rev. ed. 1992). Courts must ordinarily construe statutory language according to its literal meaning, but an exception to that rule obtains where literal interpretation would produce absurd results. Nesovic v. United States, 71 F.3d 776, 778 n. 3 (9th Cir.1995).

Where an issue arises within a general area covered by the statute but with respect to that issue the legislative pronouncement is so defective as to preclude rational application, the court must discern the applicable legislative intent by what is necessarily an act of projection, starting from the areas where legislative intent is readily discernible, and projecting to fair and reasonable corollaries of that intent for the specific issue before the court. Montana Power Co. v. Federal Power Comm’n, 445 F.2d 739, 746 (D.C.Cir.1970) (en banc). As Judge Learned Hand wrote, where literal application of statutory language results in the stultification of the statutory scheme, “[cjourts have not' stood helpless in such situations; the decisions are legion in which they have refused to be bound by the letter, when it frustrates the patent purpose of the whole statute.... [the court] must remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning.” Cabell v. Markham, 148 F.2d 737, 739 (2d Cir.1945) (quoted in Heppner v. Alyeska Pipeline Serv. Co., 665 F.2d 868, 870 (9th Cir.1981)); see also Public Citizen v. United States Dep’t of Justice, 491 U.S. 440, 454-55, 109 S.Ct. 2558, 2566-67, 105 L.Ed.2d 377 (1989); Watt v. Alaska, 451 U.S. 259, 266 n. 9, 101 S.Ct. 1673, 1678 n. 9, 68 L.Ed.2d 80 (1981); Sacks v. Commissioner, IRS, 69 F.3d 982, 992 (9th Cir.1995).

When, as here, the literal import of the statutory text is inconsistent with legislative intent, it is within the power of the court to modify the words of the statute to conform to that intent. 2A Sutherland Statutory Construction § 46.07, at 126.

Because it was the apparent purpose of the Nevada legislature in enacting S.B. 474 to prevent bid-shopping in public works contracts, the court must read Nev. Rev.Stat. § 338.144(3)(b)(l) to give effect to that purpose. Adherence to the literal meaning of (3)(b)(l) would frustrate utterly that legislative intent. If the statutory language is ambiguous or otherwise unclear, a court should not stifle its underlying, policy by means of pedantic or grudging construction. Addison v. Holly Hill Fruit Prods., 322 U.S. 607, 614, 64 S.Ct. 1215, 1219-20, 88 L.Ed. 1488 (1944). A court may, indeed should, go beyond the literal language of a statute if reliance on that language would defeat the statute’s plain purpose. Bob Jones Univ. v. United States, 461 U.S. 574, 586, 103 S.Ct. 2017, 2025-26, 76 L.Ed.2d 157 (1983). The court will construe the words of the statute in light of the clear, strong purpose indicated by the legislature in the preamble, and adopt an interpretation which will serve to realize the statute’s evident goals. Brothers v. First Leasing, 724 F.2d 789, 793 (9th Cir.1984).

But the court need not construe in a vacuum: At the time the Nevada Legislature enacted S.B. 474, numerous other states had adopted subcontractor listing statutes; indeed it seems from the considerable similarity of language among these statutes to be likely that Nevada copied its listing statute from that of another state. Connecticut Humane Soc’y v. Freedom of Information Comm’n, 218 Conn. 757, 591 A.2d 395 (1991); Friends of Mammoth v. Board of Supervisors, 104 Cal.Rptr. 16, 500 P.2d 1360 (1972). Where such similarity exists, the language of the statutes of other jurisdictions may aid in determining the general policy and objectives of the statute under consideration. In such a way may uncertain words “be wrought into consistency and unity with a legislative policy which is itself a source of law.” Van Beeck v. Sabine Towing Co., 300 U.S. 342, 350-51, 57 S.Ct. 452, 456, 81 L.Ed. 685 (1937).

To that end, the court will consider the language employed by other jurisdictions seeking to address the evil of bid-shopping in the context of public works construction contracts.

In Delaware, a winning general contractor may not substitute a listed sub without written consent of the awarding authority, and such consent may be given only if the authority is

satisfied that the subcontractor in question whose name is listed in the successful bidder’s accompanying statement is unqualified to perform the work required, or has faded to execute a timely reasonable subcontract, or has defaulted in the performance of the part of the work covered by the subcontract or is no longer engaged in such business.

Del.Code Ann. tit. 29, § 6911 (1995) (emphasis supplied). Connecticut’s listing law provides that

[t]he awarding authority shall not permit substitution of a subcontractor for one named in accordance with the provisions of this section or substitution of a subcontractor for any designated subtrade work bid to be performed by the general contractor’s own forces, except for good cause. The term “good cause” includes but is not limited to a subcontractor’s, or, where appropriate, a general contractor’s ... failure to perform h[er] agreement to execute a subcontract under section 4b-96.

Conn.Gen.Stat. § 4b-95 (1995).

In Alaska,

A bidder may replace a listed subcontractor if the subcontractor ... fails to execute a contract with the bidder involving performance of the work for which the subcontractor was listed and the bidder acted in good faith ...

Alaska Stat. § 36.30.115(b) (emphasis supplied).

The subcontractor listing statutes enacted in California and New Mexico are the statutes which most closely resemble Nevada’s statute. The New Mexico statute provides

No contractor whose bid is accepted shall substitute any person as subcontractor in place of the subcontractor listed in the original bid, except that the using agency shall consent to the substitution of another person as a subcontractor.... when the subcontractor listed in the bid, after having had a reasonable opportunity to do so, fails or refuses to execute a written contract, when such written contract, based upon the general terms, conditions, plans and specifications for the project involved or the terms of such subcontractor’s written bid, is presented to h[er] by the contractor....

N.M.Stat.Ann. § 13-4r-36 (Michie 1996) (emphasis supplied). The relevant portion of the California statute prohibits the substitution of listed public works subcontractors absent consent by the awarding authority on the ground that

the subcontractor listed in the bid after having had a reasonable opportunity to do so fails or refuses to execute a written contract, when that contract, based upon the general terms, conditions, plans and specifications for the project involved or the terms of that subcontractor’s written bid, is presented to the subcontractor by the prime contractor.

Cal.Pub.Con.Code § 4107(a)(1) (West 1996).

It is the legal judgment of the court that Nev.Rev.Stat. § 338.144(3)(b)(l) must be read to permit a public works general contractor to substitute a listed subcontractor where, after having had a reasonable opportunity the subcontractor fails or refuses to execute a written subcontract presented to it by the general contractor, where the terms of that proposed subcontract are in reasonable conformity to the terms of the listed subcontractor’s original bid. Judicial adherence to the literal command of the statute, as written, would produce absurd results. The court’s reconstruction of the statute will serve to effectuate the documented intent of the legislature to prevent bid-shopping by narrowing the extent of post-award negotiations between general contractor and subcontractor: Certainly the parties may conduct negotiations on the terms of the subcontract after bid day, but the general contractor may not rely upon § 338.144(3)(b)(l) to substitute a listed subcontractor where the only subcontract offered by the general contractor to such listed subcontractor contains terms radically less favorable to the subcontractor than the terms of that subcontractor’s bid.

The court well knows that merely by listing a particular subcontractor in its bid, the bidding prime contractor does- not thereby enter into a contract with the listed subcontractor. Interior Sys. Inc. v. Del E. Webb Corp., 121 Cal.App.3d 312, 175 Cal.Rptr. 301 (1981); Norcross v. R.W. Winters, 209 Cal.App.2d 207, 25 Cal.Rptr. 821 (1962). The subcontractor listing law does not work such a radical revision of the common law of offer and acceptance. It does, however, impose pseudo-contractual obligations on the parties. A general contractor who lists a particular subcontractor in its bid on a public works project does thereby betroth itself to that subcontractor. Absent circumstances justifying substitution on one or more of the statutory grounds for substitution set out in Nev.Rev.Stat. § 338.144(3)(b), the contractor and subcontractor must eventually enter .into a binding subcontract. To this extent the statute links the two parties together; though they have no contract on bid day, they are now bound to one another, and may disengage only on one or more of the specific statutory grounds. To this extent the statute works a substantive change upon the common-law rules as they apply in the context of public works contracting, and attempts to level the playing field which is otherwise tilted, both by the general contractor’s position as the owner of the prime contract, and by the general contractor’s common-law rights as defined by Drennan v. Star Paving, supra.

The court finds that Clark Pacific has demonstrated, in the course of the preliminary injunction hearing, a substantial likelihood that it could prove, at trial of the merits of this action, that, its post-bid-day behavior does not justify its substitution under the court’s reconstructed reading of Nev.Rev. Stat. § 338.144(3)(b)(l). The court cannot say, on the basis of the evidence adduced to date, that the terms of the only subcontract ever offered to Clark reasonably conformed to the terms of its bid. Krump Construction’s proposed subcontract would have both reduced the base price of Clark Pacific’s bid by $10,000.00 and increased substantially the scope of work to be performed by Clark Pacific, at no additional compensation..

During the hearings on Plaintiffs Motion for Preliminary Injunction, Defendant Krump Construction argued repeatedly that C