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General Laws of Massachusetts - Chapter 149A Public Construction Alternative Delivery Methods - Section 1 Construction management at risk delivery method; notice

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Section 8. (a) For each building project procured pursuant to sections 1 to 9, inclusive, the public agency shall establish a trade contractor selection process for all sub-bid classes of work listed in section 44F of chapter 149 and all other sub-bid classes of work selected by the public agency for the project, provided the sub-bid work meets or exceeds the threshold sum identified in subsection (1) of section 44F of chapter 149. The selection process for the trade contractors shall conform to the requirements set out in subsections (b) to (k), inclusive, of this section. The public agency shall also establish a selection process for subcontractors who are not trade contractors as defined above. The selection process shall conform to the requirements of subsection (j) of this section. All trade contractors and subcontractors seeking to provide services in connection with the building project shall be prequalified in accordance with this section. The public agency may, consistent with established minority business enterprise and women business enterprise inclusion goals, provide an additional 5 points to the total score of each minority business enterprise and women business enterprise in the prequalification process as provided in subsection (e) of this section. The construction management at risk firm may submit its qualifications to bid on trade contract or subcontract work in accordance with this section; provided that the construction management at risk firm customarily performs the work for which it submits qualifications; provided further, that the construction management at risk firm must perform the work with employees on its own payroll; and provided further, that the construction management at risk firm meets all the requirements of the selection process.

All trade contracts entered into in accordance with this chapter shall be secured by performance and payment bonds in the full amount of the trade contract amount from a surety company licensed to do business in the commonwealth and whose name appears on United States Treasury Department Circular 570; provided that the bonds are subject to subsection (3) of section 44F of chapter 149.

(b) The public agency shall establish a trade contractor prequalification committee for the building project. The prequalification committee shall be comprised of a representative from the designer, a representative from the construction management at risk firm, and 2 representatives appointed by the public agency.

(c) The construction management at risk firm shall provide to the public agency detailed information describing the work required for each trade contractor. This detailed information shall serve as the basis for an RFQ to be issued by the public agency. The public agency shall give public notice of trade contractor work on the building project and shall issue for each trade contract established under subsection (a) an RFQ which shall be used to solicit responses from eligible trade contractors and which shall be used to prequalify the trade contractors to participate on the building project; but, the public notice and solicitation shall include at a minimum:

(1) the date, time and place for submission;

(2) relevant information about the project and the bidding process;

(3) the specific criteria for trade contractor prequalification and selection;

(4) a statement indicating that the RFQ will be used to prequalify trade contractors that will be invited to submit a bid; and

(5) that the responders’ names are to be posted, but that there shall be no public opening of responses.

All interested trade contractors shall be eligible to respond to the RFQ and participate in the prequalification process.

Each response submitted by a trade contractor in response to the RFQ shall be signed under pains and penalties of perjury. Financial information provided in response to the RFQ shall remain confidential and not be a public record as defined in section 7 of chapter 4 and shall not be open to public inspection, to the fullest extent possible under the law.

[Subsection (d) applicable as provided by 2009, 30, Secs. 27 and 46.]

(d) The public notice and solicitation required in subsection (c) shall be advertised in a newspaper of general circulation in the area in which the building project is located, in the central register pursuant to section 20A of chapter 9, and within the COMPASS system, so-called. The public notice and solicitation shall be given not less than 2 weeks before the deadline for submitting responses to the RFQ.

(e) The RFQ shall require only the information contained in subparagraphs 1 to 4, inclusive, of this paragraph, and shall identify the specific point allocation for each category and sub-category of information. Within each category of information, public agencies may use discretion in allocating points among the subcategories, consistent with the total points for the category.

(1) Management Experience (50 points; minimum of 25 required for approval):

(i) Business owners, The name, title, years with firm of the owner(s) of the business.

(ii) Management personnel, The names, title, education and construction experience, years with firm, and list of projects completed by all management personnel.

(iii) Similar project experience, The project name(s), description, description of scope, original trade contract sum, final trade contract sum with explanation, and date completed of similar projects.

(iv) Terminations, A list of any projects on which the trade contractor was terminated or failed to complete the work.

(v) Lawsuits, A list of commercial lawsuits in which the trade contractor is a defendant or defendant-in-counterclaim with regard to construction contracts within the last 3 years. The lawsuits shall not include any actions that primarily involve personal injury or workers’ compensation claims, or where the sole cause of action involves the trade contractor’s exercise of its rights for direct payment under section 39F of chapter 30.

(vi) Safety record, The 3 year history of the trade contractor’s workers’ compensation experience modifier.

(2) References (30 points; minimum of 15 required for approval):

(i) Client references for all projects listed in clause (iii) of subparagraph (1), including the project name, client’s name, address, telephone and fax number, and contact person.

(ii) Credit references, A minimum of 5 credit references, including telephone and fax number of contact person from key suppliers, vendors and banks.

(iii) Public project record, A list of all completed public building construction projects as defined in section 44A of chapter 149 during past 3 years with client’s name, address, telephone and fax number and contact person.

(3) Capacity to Complete Projects (20 points; minimum of 10 required for approval):

(i) Annual revenue for prior 3 fiscal years. There shall be no requirement for submission of financial statements.

(ii) Revenue under contract for next 3 fiscal years.

(4) Mandatory commitment letter, for which no points are assigned, for payment and performance bonds at 110 per cent of the estimated trade contract value from a surety company licensed to do business in the commonwealth and whose name appears on United States Treasury Department Circular 570.

(f) Responses submitted in response to the RFQ issued pursuant to subsection (e) shall be reviewed and scored by the trade contractor prequalification committee established pursuant to subsection (b). All trade contractors who achieve a score of 70 points or greater shall be prequalified to submit a bid. The public agency shall notify the prequalified trade contractors of their approval to submit a bid on the project as well as the schedule and timing for the submission of the Request for Bid as outlined below. The decision of the prequalification committee shall be final and not subject to appeal except on the grounds of fraud or collusion. A trade contractor’s score shall be made available to the trade contractor upon request, but shall not be a public record as defined in section 7 of chapter 4 and shall not be open to public inspection, to the fullest extent possible under the law.

(g) Trade contractors prequalified pursuant to subsection (f) shall be invited to submit a bid on the proposed building project pursuant to a Request for Bids for trade subcontracting services. The request for bids document shall include, without limitation, the following information:

(1) the date, time and place for submission of responses to the request for bids,

(2) fully detailed drawings and specifications by class of work in accordance with paragraph (a) of subsection (1) of section 44F of chapter 149 which shall provide for full competition for each item of material to be furnished under the contract as set forth under subsection (b) of section 39M of chapter 30;

(3) a detailed definition of the trade contractor’s scope of work, including alternates and allowances, if any, within that scope of work;

(4) a project schedule indicating the planned sequence and duration of each trade contractor’s work;

(5) a list of prequalified trade contractors;

(6) a trade contractor bid form that shall require, without limitation, a listing of price, addenda, alternates and allowances, if any, for the trade work; certification that the trade contractor will perform the complete trade work with employees on his own payroll, except for work customarily performed by sub-trade subcontractors within the trade; and the names of all sub-trade subcontractors to be used if awarded the trade contract and each sub-trade contract sum;

(7) an affidavit that all sub-trade subcontractors named on the bid form have been prequalified by the trade contractor using criteria similar to the criteria for the prequalification of trade contractors;

(8) an affidavit of tax compliance;

(9) an affidavit of prevailing wage compliance pursuant to sections 26 and 27 of chapter 149;

(10) a non-collusion affidavit;

(11) a requirement for the bidder to post a 5 per cent bid bond from a surety company licensed to do business in the commonwealth and whose name appears on U.S. Treasury Department Circular 570; but, the bid bond shall be returned to the bidder if the bidder is not selected as the trade contractor;

(12) the budget for the project, and the budget amount for the trade contract scope of work as provided in the project guaranteed maximum price if available, or as provided in the most recent budget for the project; and

(13) a trade contractor agreement form as set forth in this section including all exhibits.

Trade contractors submitting bids in response to the request for bids shall do so in accordance with the requirements contained in the request for bids package. Any bid which does not include the bid bond or affidavits required pursuant to this subsection or any response in which the information requested is incomplete, conditional, or obscure or which contains any additions not required in the request for bids package shall be rejected.

(h) Bids shall be opened publicly by the public agency and shall be awarded to the lowest prequalified bidder; but, if the public agency receives fewer than 3 responsive bids on any trade contract and the lowest bid exceeds the estimated cost for the work for which the bids are requested, the construction manager at risk firm shall attempt to negotiate an acceptable price with the lowest prequalified bidder. If the negotiations are unsuccessful, the construction manager at risk firm shall terminate negotiations with the lowest prequalified bidder and shall initiate negotiations with the trade contractor who was the second lowest prequalified bidder. If the construction manager is unsuccessful in negotiating an acceptable price with the lowest prequalified bidder and second lowest prequalified bidder, the construction manager at risk firm, on behalf of and with the consent of the public agency, shall solicit additional bids, utilizing the procedures for selection of subcontractors who are not trade contractors, set out in subsection (j).

(i) Each trade contractor selected by the construction management at risk firm to perform work on the building project shall return an executed trade contract including the required performance and payment bonds and insurance certificate to the construction manager at risk firm within 10 business days of receipt of the trade contract from the construction manager at risk firm. The trade contract shall be the trade contract agreement in subsection (k).

(j) For subcontractors who are not trade contractors as defined in subsection (a) and whose work has an estimated cost at or exceeding the threshold sum identified in subsection (1) of section 44F of chapter 149, the construction management at risk firm shall submit to the public agency for approval the qualifications that a subcontractor must have in order to perform the work of the subcontract and a list of 3 subcontracting firms which the construction management at risk firm believes meets the qualifications. The public agency may eliminate firms from the list and may add firms to the list; if, any firm added is acceptable to the construction management at risk firm. The construction management at risk firm shall invite each subcontractor approved by the public agency to submit a bid for the work. The bid shall be based on detailed bidding information developed by the construction management at risk firm. The construction management at risk firm shall present a list of the bids submitted to the public agency. The construction management at risk firm shall indicate the bidders who are selected to be awarded a subcontract. The construction management at risk firm shall provide a written explanation as to the reason for the award of a subcontract. Notwithstanding the foregoing, subcontracts with an award value that does not exceed the threshold sum as identified in subsection (1) of section 44F of chapter 149, may be awarded by the construction management at risk firm using any selection method selected by the construction management at risk firm with the approval of the public agency.

(k) When entering into a contract with a trade contractor selected to perform work pursuant to subsections (h) and (i), the trade contractor agreement shall be in the following form:

TRADE CONTRACTOR AGREEMENT

THIS AGREEMENT MADE THIS ___ DAY OF , 20 , by and between ___ a corporation organized and existing under the laws of ___a partnership consisting of ___ an individual doing business as ___ hereinafter called the “Construction Management At Risk Firm” and ___ a corporation organized and existing under the laws of ___ an individual doing business as ___ hereinafter called the “Trade Contractor”.

WITNESSETH that the Construction Management At Risk Firm and the Trade Contractor for the considerations hereafter named, agree as follows:

(1) The Trade Contractor agrees to furnish all labor and materials required for the completion of all work specified in Section No(s). ___ of the specifications for ___ (name of Sub-trade(s)) and the plans referred to therein and addenda No.___ for the ___ (project) all as prepared by ___ designer. All work shall be in accordance with the contract documents listed on Exhibit A; and the detailed Scope of Work listed on Exhibit B. The Construction Management At Risk Firm agrees to pay the Trade Contractor as full payment for all the work in Exhibit B the sum of $ . This price includes the following alternates: Nos. , , , ___.

(A) The Trade Contractor agrees to be bound to the Construction Management At Risk Firm by the terms of the hereinbefore described plans; specifications (including all general conditions stated therein) and addenda No. , and , and , and to assume to the Construction Management At Risk Firm all the obligations and responsibilities that the Construction Management At Risk Firm by those documents assumes to the ___ (Public Agency) hereinafter called the “Public Agency,” except to the extent that provisions contained therein are by their terms or by law applicable only to the Construction Management At Risk Firm.

(B) The Construction Management At Risk Firm agrees to be bound to the Trade Contractor by the terms of the hereinbefore described documents and to assume to the Trade Contractor all the obligations and responsibilities that the Public Agency by the terms of the hereinbefore described documents assumes to the Construction Management At Risk Firm, except to the extent that provisions contained therein are by their terms or by law applicable only to the Public Agency.

(2) The Construction Management At Risk Firm agrees to begin, prosecute and complete the entire work specified by the Public Agency in an orderly manner so that the Trade Contractor will be able to begin, prosecute, and complete the work described in this Trade Contract; and, in consideration thereof, upon notice from the Construction Management At Risk Firm, either oral or in writing, the Trade Contractor agrees to begin, prosecute and complete the work described in this Trade Contract in an orderly manner and in accordance with the Project Schedule attached as Exhibit C as it may be reasonably modified from time to time by agreement of the Construction Management At Risk Firm and the Trade Contractor.

(3) The Trade Contractor agrees to furnish to the Construction Management At Risk Firm, on execution of this Trade Contractor Agreement and prior to commencing the work, evidence of workers’ compensation insurance as required by law and evidence of public liability and property damage insurance of the type and in limits required to be furnished to the Public Agency by the Construction Management At Risk Firm.

(4) The Construction Management At Risk Firm agrees that no claim for services rendered or materials furnished by the Construction Management At Risk Firm to the Trade Contractor shall be valid unless written notice thereof is given by the Construction Management At Risk Firm to the Trade Contractor during the first ten (10) days of the calendar month following that in which the claim originated.

(5) This Trade Contractor Agreement is contingent upon the execution of an amendment to the contract between the Construction Management At Risk Firm and the Public Agency for the work of the Trade Contractor.

(6) If the trade contractor should be adjudged a bankrupt, or if he should make a general assignment for the benefit of his creditors, or if a receiver should be appointed on account of his insolvency, or if he should persistently or repeatedly refuse or should fail, except in cases for which extension of time is provided, to supply enough properly skilled workmen or proper materials, or if he should fail to make prompt payment to sub-trade subcontractors or for material or labor, or persistently disregard laws, ordinances or the instructions of the Construction Management At Risk Firm, or otherwise be guilty of a substantial violation of any provision of the contract, then the Construction Management At Risk Firm may, without prejudice to any other right or remedy and after giving the Trade Contractor and his surety seven days’ written notice, terminate the employment of the Trade Contractor and take possession of the premises and of all materials, tools, and appliances thereon and finish the work by whatever method he may deem expedient. In such case the Trade Contractor shall not be entitled to receive any further payment until the work is finished. If the unpaid balance of the trade contract price shall exceed the expense of finishing the work including compensation for additional architectural, managerial and administrative services, such excess shall be paid to the Trade Contractor. If such expense shall exceed such unpaid balance, the Trade Contractor shall pay the difference to the Construction Management At Risk Firm. The Construction Management At Risk Firm and Trade Contractor shall have the right to seek damages for breach of this Trade Contract without terminating this Trade Contract or ceasing performance hereunder.

(7) The following exhibits are incorporated into their subcontract:

Exhibit A: Contract Documents

Exhibit B: Detailed Scope of Work

Exhibit C: Project Schedule

(8) IN WITNESS WHEREOF, the parties hereto have executed this agreement the date and year first above-written.

SEAL

ATTEST ___ ___

Trade Contractor

SEAL

ATTEST ___ ___

Construction Management At Risk Firm

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Last modified: March 20, 2014