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TitleDesigning and Constructing Public Facilities: Legal - Mass.Gov
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Table of Contents
                            CONTENTS
Foreword
	What’s Included and What’s Not
	What’s Required and What’s Not
	The Massachusetts Certified Public Purchasing Official (MCPPO) Program
	Using This Manual
I.  Public Construction in Massachusetts
	Project Delivery Methods for Public Construction
		The Design-Bid-Build Project Delivery Method
		Alternative Project Delivery Methods
	Noncompliance with the Construction Bid Laws
	In-House Design and Construction
	Volunteer Design and Construction
	Before You Begin: Preliminary Planning
		Planning and Staffing for Project Oversight
		Project Record-Keeping
		Authority to Enter Into and Modify Contracts
		Cost Estimate Requirement
		Affirmative Marketing Program
II.  The Designer Selection Process
	Procuring Design Contracts for Building Projects
		Designer Selection Law Thresholds and Applicability
		Exempt Design Services for Building Projects
		Who Can Perform Design Services Under the Designer Selection Law
		Using the Same Designer for Study and Final Design Services
		Selecting Designers for Local Building Projects:  The Basic Steps
			Step 1:  Adopt written procedures.
			Step 2:  Develop the RFQ and contract for design services.
			Step 3:  Advertise the contract
			Step 4:  Evaluate applicants and select at least three finalists.
			Step 5:  Rank the finalists.
			Step 6:  Finalize the contract.
			Step 7:  Award the contract and publicize the contract award.
		Emergency Contracts
	Procuring Design Contracts for Public Works Projects
		M.G.L. c. 7C, § 58
		Selecting Designers for Local Public Works Projects
The Design Contract for Public Building Projects
III.  The Planning Stage
	The Study
	Value Engineering
IV.  The Design Stage
	Material Specifications
	Estimated Quantities
	Prevailing Wage Requirements for all Construction Contracts
	Labor Harmony and OSHA Training Certification Requirements for Construction Contracts Estimated to Cost More Than $10,000
	Building Contracts Estimated to Cost More Than $150,000:  Additional Legal Requirements For Bid Documents
	Evaluating the Designer’s Performance
V.  Procuring Building Construction Under M.G.L. c. 149
	Building Construction Contracts Estimated to Cost Less Than $10,000
	Building Construction Contracts Estimated to Cost At Least $10,000 But Not More Than $50,000
	Building Construction Contracts Estimated to Cost More Than 50,000 But Not More Than $150,000
	Building Construction Contracts Estimated to Cost More Than $150,000
		Filed Sub-Bidding
		Certification
		Contractor and Subcontractor Prequalification Requirements for Building Contracts Estimated to Cost $10 Million or More
			Step 1:  Establish a prequalification committee.
			Step 2:  Prepare the RFQ.
			Step 3:  Advertise the RFQ and receive statements of qualifications.
			Step 4:  Evaluate and prequalify contractors or subcontractors.
			Step 5:  Notify applicants; post and publish public notice of prequalified contractors and subcontractors.
			Step 6:  Solicit bids or filed sub-bids from prequalified contractors or subcontractors.
		The Construction Bidding Process for Building Contracts Estimated to Cost More Than $150,000
			Step 1:  Prepare the IFB.
			Step 2:  Advertise and post the IFB.
			Step 3:  Receive, open, and review sub-bids.
			Step 4:  Distribute the filed sub-bidder list to everyone who received the IFB.
			Step 5:  Receive, open, and review general bids.
			Step 6:  Award the contract to the lowest responsible and eligible bidder.
			Step 7:  Obtain bonds and execute the contract.
			Step 8:  Return bid deposits and publicize the contract award.
		Emergencies
VI. Procuring Public Works Construction and Construction Materials Under M.G.L. c. 30, § 39M
	Public Works Construction and Construction Materials Contracts Estimated to Cost Less than $10,000
	Public Works Construction and Construction Materials Contracts Estimated to Cost at Least $10,000 But Not More Than $50,000
	Public Works Construction and Construction Materials Contracts Estimated to Cost More Than $50,000
		Step 1:  Prepare the IFB.
		Step 2:  Advertise and distribute the IFB.
		Step 3:  Receive, open, and review bids.
		Step 4:  Award the contract to the lowest responsible and eligible bidder.
		Step 5:  Obtain payment bond.
		Step 6:  Execute the contract.
		Step 7:  Return bid deposits and publicize the contract award.
		Emergencies
		Bidding Smaller Public Works Construction Contracts and                       Construction Materials Contracts Under M.G.L. c. 30B, § 5
VII.  Procuring Modular Construction
	Projects Covered by the Modular Procurement Law
	Overview of the Modular Construction Process
	Planning for Modular Construction
	Emergencies
	Modular Construction Project Oversight
	Modular Procurement:  The Basic Steps
		Step 1:  Document your decision to replace a modular building (if required).
		Step 2:  Prepare the RFP.
		Step 3:  Provide public notice of the RFP.
		Step 4:  Distribute the RFP.
		Step 5:  Designate the individual(s) responsible for evaluating proposals.
		Step 6:  Receive the sealed price and non-price proposals.
		Step 7:  Open and register the proposals.
		Step 8:  Evaluate the non-price proposals.
		Step 9:  Evaluate the price proposals.
		Step 10:  Identify the most advantageous proposal.
		Step 11:  Negotiate changes (if any) to the proposal.
		Step 12:  Award and publicize the contract.
	Modular Construction RFP:  Recommended Outline and Contents
		Part I.  General Information
		Part II.  Proposal Submission Requirements
		Non-Price Proposal Submission Requirements
		Price Proposal Submission Requirements
		Part III.  Purchase Description/Scope of Services
		Part IV.  Evaluation Criteria
		Part V.  Contract Terms
VIII.  The Construction Stage
	Payment Procedures
	Payroll Records
	Substitutions
	Change Orders
		M.G.L. c. 30, § 39.
		Change Order Approval Procedures
		Change Order Pricing
	Project Closeout
		Building Contracts
		Public Works Contracts
	Evaluating Contractor and Subcontractor Performance on Building Contracts Estimated to Cost More Than $150,000
	Invoking the Performance Bond
IX.  Using Alternative Project Delivery Methods Under M.G.L. c. 149A
	Optional CM At-Risk Delivery Method for Building Construction Contracts Estimated to Cost $5 Million or More
		Obtaining Approval to Use CM at Risk
		Procuring the CM at-Risk Contract
			Step 1:  Establish a prequalification committee.
			Step 2:  Prepare and advertise the RFQ for CM at-risk services.
			Step 3:  Evaluate the statements of qualifications and prequalify at least three CM at-risk firms.
			Step 4:  Establish a selection committee.
			Step 5:  Prepare the RFP and distribute it to prequalified CM at-risk firms.
			Step 6:  Receive, evaluate and rank the CM at-risk proposals.
			Step 7:  Negotiate non-fee contract terms with the selected proposer and      award the CM at-risk contract.
		Negotiating the GMP
		Procuring Trade Contracts Estimated to Cost More Than $25,000
			Step 1:  Establish a trade contractor prequalification committee.
			Step 2:  Prepare and advertise the RFQ for trade contractor services for          each trade contract.
			Step 3:  Evaluate responses and prequalify trade contractors receiving a        point score of 70 or higher.
			Step 4:  Prepare the RFB and distribute it to prequalified trade contractors.
			M.G.L. c. 149A, § 8(g); 801 CMR 8.11.
			Step 5:  Receive, open, and review trade contract bids.
			Step 6:  The CM at-risk firm executes the trade contractor agreement.
		Procuring Other Subcontracts Estimated to Cost More Than $25,000
		Undertaking Construction Work Before Execution of the GMP Amendment
		Evaluating the CM at-risk firm and the Trade Contractors
	Optional Design-Build Delivery Method for Public Works Construction Contracts Estimated to Cost $5 Million or More
		Obtaining Approval to Use Design-Build
		Owner’s Representative Requirement
		Procuring the Design-Build Contract
			Step 1:  Contract with or assign a design professional.
			Step 2:  Solicit letters of interest from design-build entities.
			Step 3:  Prepare the RFQ for design-build services.
			Step 4:  Develop a scope of work statement defining the project.
			Step 5:  Develop and issue a draft RFP (optional).
			Step 6:  Distribute the RFQ.
			Step 7:  Designate individuals responsible for evaluating responses to the RFQ.
			Step 8:  Evaluate and rate the responses, and shortlist at least two               design-build entities.
			Step 9:  Prepare the RFP and distribute it to the prequalified design-build    entities.
			Step 10:  Evaluate the proposals, negotiate with the selected proposer, and  award the contract.
			Step 11:  Execute the contract and notify the unsuccessful design-build entities.
				Appendix A:  Additional Sources of Assistance
				Appendix B:  Statutory Forms
				Appendix C: Model RFP for Modular Construction
				Part I.  General Information
				Part II.  Proposal Submission Requirements
				Part III.  Purchase Description/Scope of Services
				Part IV.  Evaluation Criteria
				Part V – Contract Terms
Appendix A: Additional Sources of Assistance
Appendix B: Statutory Forms
Appendix C: Model RFP for Modular Construction
Appendix D: Code of Conduct for Public Employees
INDEX
                        
Document Text Contents
Page 2

Notice

This manual supersedes the August 2014 edition of Designing and Constructing Public

Facilities. The contents of older editions may not reflect current law or interpretations of

the Office of the Inspector General. You may download this manual from our website at

www.mass.gov/ig or purchase copies from the State Bookstore, Room 116, State

House, Boston, MA 02133, (617) 727-2834.




Massachusetts Office of the In spector General

Address :
Room 1311
John McCormack State Office Building
One Ashburton Place
Boston, MA 02108

Contact Information :
(617) 727 - 9140 (Main Office)
(617) 722 - 8838 (Chapter 30B)
(617) 727 - 9140 (MCPPO Program)
(800) 322 - 1323 (Confidential 24-Hour Hotline)
(617) 723 - 2334 (FAX)
www.mass.gov/ig

Copyright 2016 by the Commonwealth of Massachusetts
Office of the Inspector General, Boston, Massachusetts

All rights reserved
First edition published 1985, revised 1989, 1998, 2000, 2003, 2005, 2011, 2014, 2016


Printed on recycled paper



http://www.mass.gov/ig
http://www.mass.gov/ig

Page 101

VI. Procuring Public Works Construction and Construction Materials Under
M.G.L. c. 30, § 39M 87



Step 2: Advertise and distribute the IFB.

The second step is to advertise and distribute the IFB. At least one week before the

deadline for submitting bids, you must post the public notice, or advertisement, inviting

bids in a conspicuous place in or near your jurisdiction’s office. At least two weeks

before the deadline, the advertisement must appear in the Central Register, which is

published by the Secretary of the Commonwealth; in a newspaper of general circulation

in the locality of the project; and on COMMBUYS.
59

The Secretary of the

Commonwealth's website at www.mass.gov/sec contains information on submitting

notices to the Central Register.

Your advertisement must include the following information:

when and where the IFB may be obtained;

when and where general bids and sub-bids must be submitted;

when and where general bids and sub-bids will be opened; and

sufficient facts regarding the nature and scope of the project to assist bidders
in deciding whether or not to bid on the contract.

M.G.L. c. 149, § 44J(2).

The IFB should be made available to all who request it. Keep a full record of the names

and addresses of all who receive the documents. If it becomes necessary to issue an

addendum to the bid package, send the addendum to all who have obtained the original

IFB.
60

To avoid misunderstandings or protests, you should require bidders to

acknowledge in their bid forms that they have received all addenda to the original IFB.

For larger or more complex projects, it may make sense to schedule a prebid

conference, which may include a tour of the site or facility. If you do so, your IFB should

state clearly whether the prebid conference is optional or mandatory. If it is mandatory,

a bidder’s failure to attend would likely require rejection of the bidder’s bid. Your IFB

should also state the date, time and location of the prebid conference. Be sure to


59

The public notice requirements for projects subject to both M.G.L. c. 149 and M.G.L.
c. 30, § 39M, are contained in M.G.L. c. 149, § 44J.

60
Before bid openings, any changes or corrections to the plans, specifications or

contract terms and conditions must be distributed in an addendum.

http://www.mass.gov/sec

Page 102

VI. Procuring Public Works Con struction and Construction Materials Under
M.G.L. c. 30, § 39M 88



record the names of firms in attendance, the questions asked by attendees and the

answers provided by your representatives at the conference. The questions and

answers should then be distributed as an addendum to all firms receiving the IFB.

Step 3: Receive, open, and review bids.

All bids must be publicly opened and read at the

time at which they are due. M.G.L. c. 149, §

44J(4). All bid documents are open for public

inspection.

M.G.L. c. 30, § 39M, requires that public

construction contracts be awarded to the lowest responsible and eligible bidder, defined

as follows:

l mean the bidder:
(1) whose bid is the lowest of those bidders possessing the skill, ability
and integrity necessary for the faithful performance of the work; (2) who
shall certify, that he is able to furnish labor that can work in harmony with
all other elements of labor employed or to be employed in the work; (3)
who shall certify that all employees to be employed at the worksite will
have successfully completed a course in construction safety and health
approved by the United States Occupational Safety and Health
Administration that is at least 10 hours in duration at the time the
employee begins work and who shall furnish documentation of successful
completion of said course with the first certified payroll report for each
employee; (4) who, where the provisions of section 8B of chapter 29

61


apply, shall have been determined to be qualified thereunder; and (5) who
obtains within 10 days of the notification of contract award the security by
bond required under section 29 of chapter 149; provided that for the

of a surety company qualified to do business under the laws of the
commonwealth and satisfactory to the awarding authority; and provided
further, that if there is more than 1 surety company, the surety companies
shall be jointly and severally liable.

M.G.L. c. 30, § 39M(c).


61

M.G.L. c. 81, § 8B, formerly M.G.L. c. 29, § 8B, established a contractor
prequalification process for contracts awarded by the Massachusetts Highway
Department (now the Massachusetts Department of Transportation Highway Division)
and the Metropolitan District Commission (now the Department of Conservation and
Recreation).

M.G.L. c. 30, § 39M, does not

specify when a bidder may withdraw

its bid. As a practical matter, if bids

have not been opened, you should

obtain a written request and return

the bid and bid deposit unopened.

Page 201

ranking finalists for design
contracts under M.G.L. c. 7C,
19, 27

rating modular construction
proposals, 98, 101, 102, 103,
See also composite rating

record-keeping, 4, 8, 9, 27, 69, 70,
88, 100, 101
by contractors, 80, 94

records. See record-keeping

register of proposals for modular
construction, 100, 101

rejection
of bidder, 52
of bids, 74, 75, 89, 90
of proposals, 100, 101, 148
of sub-bids, 72, 77

repair contracts. See maintenance
and repair contracts

request for bids (RFB)
construction manager at-risk - trade

contractors, 135–36

request for qualifications (RFQ)
construction manager at risk, 125–

27
construction manager at-risk - trade

contractors, 132–34
contractor prequalification, 58–62
design-build, 144–45
designer, 20–23

responsible bidder, 40, 85
defined, 49, 51, 88
sub-bidder, 53, 78

responsive proposals, 96, 101

retainage
construction, 111
design fees, 24

schematic design, 37, 98

scope of services, 4
construction management at risk,

125, 126
design, 20, 22, 24, 29
OPM, 58

scope of work

building construction, 45, 71
construction management at risk,

128
construction management at-risk

trade contractor, 135
design, 21, 28
design-build, 140, 145, 146
modular construction, 104

Secretary of the Commonwealth,
50, 84

Single Project Limit. See
certification of contractors and
subcontractors: Single Project
Limit

site conditions, 37, 113, 114, 138,
149

sound business practices, 79, 82,
93

specifications, 48, 112, See also
plans and specifications
Paragraph E work, 43, 53

statewide contract, 48, 49, 82, 83

study, 1, 3, 11, 16, 20, 25, 33–34,
96

sub-bids. See filed sub-bidding

substantial completion, 113, 116,
117, 118, 131

substitution
of equal materials, 112, 113
of filed sub-bidders. See filed sub-

bidding

surety, 50, 51, 52, 61, 68, 76, 84,
88, 90, 120, 126, 129, 134, 135,
145

trade contractor. See construction
management at-risk trade
contracts

unforeseen site conditions. See
site conditions

Update Statement, 56, 61, 68, 72,
73, 74
construction management at risk,

126, 136

Page 202

construction management at-risk,
136

modular construction, 99, 101
sub-bidders, 71

value engineering , 16, 21, 34 35

volunteers , 3 4
on building committee, 4

withdrawal

of building construction bid, 72
of modular construction proposal,

100, 101, 103
of public works bid, 88
of sub-bid, 70

women business enterprise
(WBE), 10, 18, 60, 126, 128

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