When does the new
public construction reform law take effect?
Chapter 193 of the Acts of 2004, the new public construction
reform law, was signed into law on July 19, 2004.
The new law is effective immediately, with the exception
of Sections 18 and 27, pertaining to the new requirements
for sub-bidder certification and alternative procurement
delivery methods, respectively, which do not become
effective until January 1, 2005 with sub-bidder Certificates
of Eligibility and Update Statements required to accompany
filed sub-bid submittals on January 1, 2006.
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If
I am an awarding authority and have already commenced
or undertaken a public building construction project,
will the new law apply to my project?
Depending on the status
of your project, at least certain portions of the
new law will apply to your project. You are advised
to seek an opinion of your legal counsel to ensure
that you are in compliance with the new requirements.
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Where
can I obtain a copy of the new law?
You can access a copy of
the new law on the following link to The General Court
of Massachusetts' website:
http://www.mass.gov/legis/laws/seslaw04/sl040193.htm
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What
are the most significant changes in the new law?
The reform law contains
some of the most significant revisions to the public
construction process in nearly a quarter century.
Since it would be difficult to list all the changes
here, we have listed the most significant changes.
The reform law:
-
increases the threshold requiring
individual filed sub-bids for designated trade work
from $10,000 to $20,000;
-
increases the threshold for projects
requiring filed sub-bids and DCAM contractor certification
from $25,000 to $100,000;
-
requires an owner's project manager
for projects valued at $1.5 million or more;
-
requires DCAM certification of subcontractors
submitting filed sub-bids after January 1, 2006;
-
requires "prequalification"
of general contractors and filed sub-bid subcontractors
by awarding authorities (on a project-by-project
basis) for all projects with estimated construction
costs of $10 million or more;
-
provides awarding authorities with
the option to utilize an owner initiated "prequalification"
process for either or both general bidders and filed
sub-bidders where estimated construction costs are
$100,000 or more, but less than $10 million (prequalification
is mandatory for $10 million or more);
-
filed sub-bid subcontractors must
furnish payment and performance bonds on projects
where prequalification is required or utilized by
the awarding authority;
-
requires municipal awarding authorities
to incorporate an Affirmative Marketing Program
with design and construction participation goals
for minority business enterprises and women business
enterprises (MBE/WBE) on state assisted building
projects;
-
provides awarding authorities with
the option to use CM at Risk on building projects
over $5 million (with the prior approval from the
Office of the Inspector General) effective January
1, 2005;
-
provides awarding authorities with
the option to use Design Build on non-building public
works projects estimated to cost $5 million or more
(with the prior approval of the Office of the Inspector
General) effective January 1, 2005;
- modifies the procurement process for building projects
with estimated construction costs of $100,000 or less
and separates them into three categories: less than
$10,000; $10,000 to $25,000; and $25,000 to $100,000;
- allows the designer on municipal projects who conducted
the feasibility study to continue with the design
of the project without mandatory peer review;
-
requires municipalities to utilize
the standard designer selection form issued by the
Designer Selection Board ("DSB").
Please be advised that this is just
a summary of some of the most significant changes
in the law and you should always consult with your
legal counsel for any specific questions regarding
the changes implemented in Chapter 193.
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How
are smaller building construction project procurements
estimated to cost $100,000 or less conducted under
the new law?
The procurement process
for smaller building construction projects estimated
to cost $100,000 or less is divided into three (3)
categories under the new law as follows:
-
If the estimated building construction
cost of the project is less than $10,000 an awarding
authority must seek no fewer than three written
quotes and award the contract to the person offering
the lowest written price quotation.
-
If the estimated building construction
project cost is not less than $10,000 but is not
more than $25,000 the contract must be advertised
via a public notification process for at least 2
weeks and an award must be made to the responsible
person offering the lowest price via written submission.
-
If the estimated building construction
project cost is not less than $25,000 but is not
more than $100,000 an advertised sealed bid process
must occur and award must be made to the lowest
responsible and eligible bidder in accordance with
M.G.L. c. 30, §39M.
For projects with estimated construction
costs of less than or equal to $100,000, DCAM certification
is not required for either general contractors or
filed sub-bidders.
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Does
the new law affect emergency waiver requests?
No, although the thresholds
have changed for bidding of public building work,
an awarding authority must still seek written approval
of DCAM if any variance with the new bidding and/or
advertising requirements is necessary because an extreme
emergency exists involving the health, safety or security
of persons or property.
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Were
there any changes to the procedure for the selection
of a designer for municipal projects?
Yes. The designer who conducted
the feasibility study for a municipality may now continue
with the design of the project. An independent review
of a feasibility study is now optional rather than
mandatory. The Designer Selection Board ("DSB")
has developed a standard designer selection form to
be used by all cities, towns, and public agencies
not within the jurisdiction of the designer selection
board. A copy of this form is available at the following
link: www.mass.gov/cam/DSB/fi_dselectboard_ct.html.
Also, be advised that for any municipal design project
that includes funding provided by the Commonwealth,
in whole or in part (such as reimbursements, grants,
and the like), awarding authorities must have MBE
and WBE goals incorporated into the design procurement
which are consistent with the participation goals
established by DCAM in consultation with SOMWBA.
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What
are the advertising or public notice requirements
if I want to use the same designer for both the feasibility
study and the final design of my building project?
Massachusetts General Laws,
chapter 7, section 38D governs the advertising requirements
for the procurement of design services and provides
that "a description of the project, including
the specific designer services sought and other information
must be included in the public notice". If the
scope of work specified in the advertisement for the
feasibility study also states that the scope may include
final design then you do not have to readvertise for
the final design work if you elect to use the same
designer. Otherwise, even if you plan to use the same
designer for both the feasibility study and the final
design, you will need to re-advertise.
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What
is "COMM-PASS" and how can we get access
to it?
"Comm-PASS"
is the acronym for Commonwealth's Procurement Access
& Solicitation System located on the internet
at http://www.comm-pass.com/.
Over 2000 Massachusetts public awarding authorities
utilize Comm-PASS to post public notice of their procurements
on the internet. Awarding authorities have access
to post their procurements on Comm-PASS FREE OF CHARGE
upon completion of FREE training offered by the Commonwealth's
Operational Services Division (OSD). You should contact
OSD directly for information on coordinating training.
Access to Comm-PASS
to review both current and closed solicitations is
available free of charge to vendors and the public.
By regularly reviewing Comm-PASS vendors desiring
to do business with public entities in the Commonwealth
are able to easily access information on potential
projects as they are advertised. For a small annual
subscription fee vendors that choose to subscribe
can also get enhanced services such as instant notification
when new postings are added to Comm-PASS for the types
of procurements they are interested in.
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What
is an owner's project manager?
Under the new law, an "owner's
project manager" is defined as "an individual,
corporation, partnership, sole proprietorship, joint
stock company, joint venture, or other entity engaged
in the practice of providing project management services
for the construction and supervision of construction
of buildings." The new law requires awarding
authorities to contract for the services of an owner's
project manager prior to contracting for design services
where the project is estimated to cost $1.5 million
or more. The owner's project manager must have certain
minimum experience requirements and is prohibited
from having any affiliation with the designer, contractor,
or any other party having an interest in the project.
An agency or municipal employee may serve as the owner's
project manager, providing he or she meets the required
minimum qualifications.
DCAM has published guidelines pertaining
to the role of the owners project manager on its website
which are available at the following link: http://www.mass.gov/cam/Creform/Own_PM_Guide.pdf
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What
is the process for selecting an owner's project manager?
While the new law provides
that "[t]he public agency shall use a qualifications
based selection process to procure the services of
an owner's project manager," it does not provide
any guidance on how that selection process should
be conducted. Under the circumstances, it seems reasonable
to assume that utilizing a qualifications based selection
process consistent with the process defined in Chapter
7 sections 38A though 38O of the General Laws for
the procurement of design services would be a sufficient
manner in which to procure the owner's project manager
services.
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Does
a public agency have to hire an "owner's project
manager" for an ongoing building construction
project of $1.5 million or more?
It depends on what
stage the project was in when the new law took effect
on July 19, 2004. An awarding authority is not required
to hire an owner's project manager if the project
was already in the construction phase and the construction
contracts were executed prior to that date.
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