"Prequalification" is a new process for both general contractors and subcontractors which is mandatory on all public construction projects with estimated construction costs of $10 million or more (unless the project is undertaken by an exempt agency). Prequalification is optional at the discretion of the awarding authority where the estimated construction costs are less than $10 million but greater than $100,000. As set forth in Section 19 of Chapter 193, the prequalification process is administered by the awarding authority on a project-by-project basis. DCAM is in the process of promulgating regulations and guidelines to implement the new prequalification process. You should regularly check the DCAM website at http://www.mass.gov/cam/ for updated information on the status of the prequalification regulations, guidelines and the implementation schedule. In the meantime, however, Section 19 provides detailed guidance on the required process and criteria.

"Certification" is a screening process conducted only by DCAM to determine whether a contractor or subcontractor meets certain minimum criteria to perform work on public building contracts estimated to cost $100,000 or more procured under Chapter 149, §44A. Under the prior law, only general contractors were required to be certified by DCAM. The new law now also requires that as of January 2005, trade contractors who are filed sub-bidders must become certified in order to bid public building construction work. The new certification process for filed sub-bidders is set forth in Section 18 of Chapter 193. Upon a firm's submission of the required application and supporting documents to DCAM, DCAM will review and determine whether the firm meets the certification standards and, if warranted, issue a "Certificate of Eligibility" evidencing DCAM certification. DCAM is in the process of implementing a program for sub-bidder certification. Upon completion of that effort, regulations and guidelines pertaining to certification of both general bidders and filed sub-bidders under the new law will be published in the Central Register and on DCAM's website at http://www.mass.gov/cam.

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What is the status of DCAM's proposed regulations regarding certification and prequalification?

DRAFT copies of the regulations were published for public comment on February 25, 2005 on DCAM's website and in the Central Register. A public hearing was held on March 4, 2005 and the public comment period ended on March 31, 2005. DCAM has incorporated appropriate changes to the DRAFT regulations and expects the final regulations to be promulgated by the end of April 2005. You should check DCAM's website frequently for any updates on the status.

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How do the new immediate prequalification requirements impact the procurement of public building construction contracts?

As set forth in Section 19 of Chapter 193, amendments to M.G.L. c. 149 now specify that it is mandatory for awarding authorities to prequalify general bidders and filed sub-bid subcontractors for public building construction projects where the total construction cost is estimated at $10 million or more. In addition, an awarding authority may prequalify general contractors and filed sub-bidders for projects with an estimated construction cost of $100,000, but not to exceed $10 million. It should also be noted that certain state agencies are exempt from mandatory prequalification, but may elect to require it at their sole option. The exempt agencies are as follows: (a) DCAM; (b) the Massachusetts Port Authority; (c) the Massachusetts Water Resources Authority; (d) the Massachusetts State Colleges Building Authority; and (e) the University of Massachusetts Building Authority.

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How does prequalification work?

Prequalification is a "two phase" procurement process.

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As an awarding authority, why should I consider mandating prequalification where the project is below the required threshold of $10 million?

An awarding authority may elect to require prequalification for general bidders and filed sub-bidders as an additional assurance that the pool of participating bidders has the requisite experience and qualifications to perform the work.

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What is a Request for Qualifications ("RFQ")?

An RFQ is issued by the awarding authority to initiate the prequalification process for general bidders and filed sub-bidders. The RFQ is made by public notice and details the following information regarding the public building project:

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What information must be included in a statement of qualifications submitted in response to an RFQ?

Under Section 19 of Chapter 193, amendments to M. G. L. c. 149 specify that awarding authorities can require only four categories of information in the statement of qualifications from prospective general bidders and sub-bidders. Generally, these categories of information are: (1) management experience; (2) references; (3) capacity to complete the project; and (4) the mandatory requirements of a written commitment from a bonding company to issue payment and performance bonds for the full value of the project and a DCAM Certificate of Eligibility and an Update Statement. The financial information submitted with the RFQ application shall not be considered a public record.

The criteria and weight given to each of these categories of information supplied by the prospective bidder is set forth in more detail in Section 19. In addition, DCAM is in the process of promulgating regulations and guidelines to implement the prequalification process. You should regularly check the DCAM website at www.mass.gov/cam/ for updated information on the status of the prequalification regulations, guidelines and implementation schedule.

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Will there be standardized RFQ forms and SOQ forms for prequalification to be used by awarding authorities and interested general contractors/subcontractors?

Yes, DCAM intends to issue standardized RFQ and SOQ forms when it issues its DCAM Guidelines for Prequalification. In order to foster consistency and compliance with M.G.L. c. 149, §§ 44D½ and 44D¾ these forms once completed (or forms consistent with these forms) will be required to be used by awarding authorities and interested general contractors and subcontractors participating in the prequalification processElectronic versions of these forms will be available to awarding authorities for use on their procurements.

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What is the evaluation process for determining prequalification?

Under Section 19 of Chapter 193 amendments to M.G.L. c. 149, an awarding authority is first required to establish a Prequalification Committee for each public building construction project where prequalification is mandated or elected by the awarding authority. The prequalification committee consists of one representative from the designer and three representatives from the awarding authority. The prequalification committee is required to evaluate and weigh the qualifications of each applicant firm in accordance with the criteria specified in the RFQ and make a determination as to whether the applicant is qualified to bid on the project. Be advised that according to the statute, the decision of the Prequalification Committee is final and is not subject to appeal unless there is evidence of fraud or collusion.

While DCAM is in the process of promulgating regulations and guidelines to implement the new prequalification process DCAM is not the enforcement agency charged with review of the prequalification process utilized by other awarding authorities. In the event that you believe there has been an irregularity in the prequalification process utilized by a particular awarding authority, you are advised to seek counsel and/or contact the Bid Protest Unit of the Office of the Attorney General.

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What happens if we prequalify fewer than 3 firms to submit bids?

Chapter 507 of the Acts of 2004 amended Chapter 193 of the Acts of 2004 to clarify the options available to an awarding authority when it prequalifies fewer than 3 general contractors or filed sub-bidders in a particular trade.

If the prequalification is mandatory (the estimated construction cost of the project is $10 million or more) and the awarding authority is not able to prequalify at least 3 general contractors or subcontractors in a particular filed sub-bidder trade category to submit bids, then the awarding authority shall reject all responses and issue at least 1 new request for qualifications. If the awarding authority is still not able to prequalify at least 3 general contractors or subcontractors in a particular filed sub-bidder trade after at least 2 attempts at prequalification, then the awarding authority has the option to do one of the following:

If the prequalification is optional (the estimated construction cost of the project is more than $100 thousand but not more than $10 million) and the awarding authority is not able to prequalify at least 3 general contractors or subcontractors in a particular filed sub-bidder trade category, then the awarding authority is not required to attempt prequalification again but instead automatically has the option to:

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If there is mandatory prequalification and we are able to prequalify 3 firms in some sub-bidder categories but not all of them, do we have to repeat the prequalification process for all categories?

No, you would only have to repeat the prequalification process for the sub-bidder categories where you were not able to prequalify 3 firms.

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Is there a "math error" in the new statute since the minimum points required in each prequalification category only add up to 50 points but the statute requires a minimum of 70 points to be prequalified?

No, in addition to the required minimums set forth in each category which total 50 points (management 25, references 15 and capacity 10) firms seeking prequalification must also achieve an additional 20 points across the categories for a total of at least 70 points overall to be prequalified.

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As an awarding authority, if we initiated our project before the new law was enacted on July 19, 2004, do we still have to prequalify general bidders and sub-bidders?

It depends on what stage the project was in when the new law took effect on July 19, 2004. If you had already opened file sub-bids or general bids prior to July 19, 2004, then you do not have to prequalify and re-bid. If you did not open bids prior to July 19, 2004, however, you should check with your legal counsel to determine whether prequalification is required.

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What is a Certificate of Eligibility?

A Certificate of Eligibility is a one page document issued annually by DCAM on DCAM letterhead that confirms that a general bidder or filed sub-bidder is DCAM certified and permitted to bid on public building constructions projects. A Certificate of Eligibility may be issued to a contractor or subcontractor upon completion of the application and review process conducted by DCAM. The certificate will contain the name of the contractor, the area or areas of work in which it is certified and other relevant information. All prospective general bidders and filed sub-bidders (for sub-bidders the requirement is effective with bids submitted as of January 1, 2006) must submit the certificate of eligibility with their bids on public building construction contracts where the general contract is estimated to exceed $100,000 and the subcontract is estimated to exceed $20,000 and the awarding authority has identified the subcontract work as filed sub-bid work, in accordance with Section 44F of M.G.L. c. 149.

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What is an Update Statement?

An Update Statement is a standard DCAM form required to be completed and signed by the contractor and submitted by all general bidders and filed sub-bidders with their bids on public building construction projects requiring DCAM certification of general and filed sub-bidders. .

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If I am certified as a general contractor for a particular trade under the prior law for certification of prime contractors, will I be certified as a sub-bidder for that trade under the new law for sub-bidder certification?

Yes. You should receive a sub-bidder Certificate of Eligibility at the same time that you receive your prime contractor Certificate of Eligibility. You should review the Notice on Subcontractor Certification on DCAM's website at www.mass.gov/cam/.

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If I am a subcontractor intending to submit a sub-bid on a public construction project, will I need to have a certificate of eligibility from DCAM by the January 1, 2005 effective date in order to bid?

No. Chapter 507 of the Acts of 2004 amended the deadline of January 1, 2005 in Chapter 193 of the Acts of 2004 to allow DCAM until December 31, 2005 to implement the new subcontractor certification process. In order to complete the implementation of subcontractor certification in 2005, DCAM has developed a quarterly schedule for the certification of certain trades in each quarter of 2005. The schedule, application forms and all other information relative to the certification implementation process is posted on DCAM's website at www.mass.gov/cam. The schedule for subcontractor is as follows: