760 CMR 11.00:
MODERNIZATION AND DEVELOPMENT OF STATE-AIDED PUBLIC HOUSING

11.01: Purpose and Applicability
11.02: Application for Funds and Site Selection
11.03: Designer Selection
11.04: Design
11.05: Bidding
11.06: Allocation of Funding
11.07: Construction
11.08: Completion
11.09: Grant Close-Out
11.10: Tenant Participation in Modernization Projects
11.11: Waiver by Director of Housing and Community Development

11.01: Purpose and Applicability.

(1) The purpose of 760 CMR 11.00 is to set forth the procedures governing the modernization and development of housing funded by the Department of Housing and Community Development (hereinafter referred to as the "Department") through grants to a local housing authority (hereinafter called the "LHA").

(2) 760 CMR 11.00 shall be effective on November 1, 1996. 760 CMR 11.00 replaces prior regulations appearing at 760 CMR 10.00 (modernization) and 760 CMR 11.00 (development).

(3) Unless otherwise noted, 760 CMR 11.00 applies to both the modernization and development of public housing funded by the Department.

11.02: Application for Funds and Site Selection

(1) Application (Modernization). The LHA shall inform the Department of the LHA's modernization needs on forms prescribed by the Department, either at specific funding rounds announced by the Department or as critical safety and energy needs arise.

(a) The LHA shall involve tenants of state aided housing in decisions related to the application for modernization funds in accordance with 760 CMR 11.10.

(b) Each modernization application shall contain a narrative statement outlining specific plans for tenant participation in the modernization process.

(2) Application (Development). The LHA shall submit to the Department an application proposal that responds to all aspects of the Request for Proposals circulated by the Department.

(a) The application shall include cooperation agreements between the LHA and the municipality to the extent requested in the Request for Proposals.

(b) When required by the provisions of St. 1954, c. 667, as amended, the LHA shall secure town meeting authorization to apply for such funding. Such approval shall be consistent with the Department's written guidelines and should not be specific as to site or number of units.

(3) Site Selection (Development). The LHA shall select sites in accordance with the Department's site selection guidelines.

11.03: Designer Selection

(1) Designer Selection. The LHA shall solicit applications from designers (as defined by M.G.L. c. 7) and follow the selection and interview process in accordance with M.G.L. c. 7 and the Department's exemption, as applicable to local housing authorities.

(2) Tenant Interview (Modernization). The LHA shall invite a representative of the tenant organization to participate in the interview of the finalist(s) for designer.

(3) Contract for Designer Services. Upon written approval of the selection of designer by the Department, the LHA and designer shall execute a contract for designer services in the form prescribed by the Department.

(a) The LHA shall not modify or amend this contract without the prior written concurrence of the Department.

(b) This contract shall not be valid until approved in writing by the Department.

(c) The LHA shall make periodic payments to the designer as provided by the contract subject to the approval of the Department.

11.04: Design

(1) Consistency with Department Procedures and Budget. Each project shall be developed in accordance with the Department's procedures and within the budget established by the Department for the project.

(2) Consistency with Department Design and Materials Criteria. The LHA shall not approve of any design or materials that deviate from the Department's design and materials criteria without the prior written approval of the Department.

(3) Consultation on the Scope of Work with the Department. The designer and LHA shall discuss with the Department, on a preliminary basis, the scope of the work prior to the preparation of plans and specifications.

(4) Authorization to Prepare Construction Documents. The designer shall not prepare construction documents without the prior written authorization of the Department. Such authorization shall not take place until all local approvals shall have been secured unless otherwise authorized by the Department.

(5) Approval of Plans, Specifications, and the Construction Documents. All plans and specifications and the construction documents shall be reviewed and approved by the Department prior to the LHA's advertising for bids by the LHA.

(6) Comprehensive Permit (Development). Upon request of the Department, the LHA shall apply for a comprehensive permit under the provisions of M.G.L. c. 40B if deemed necessary by the Department for construction of the project. The LHA shall diligently pursue any such application.

11.05: Bidding

(1) Statutory and Regulatory Compliance in Bidding. Bidding and approval of bidders shall be in accordance with the Massachusetts General Laws, the regulations of the Division of Capital Planning and Operations, and the Department's directives. The LHA shall:

(a) Notify the Department immediately regarding any formal bid award protest filed with the Division of Fair Labor and Business Practices in the Office of the Attorney General.

(b) Forward all bid documents, including subbids, the three low general bids and a bid summary to the Department for its review and approval.

(2) Rejection of Bids. The LHA shall reject any bidder whose bid price exceeds the budget established for the project unless the Department shall have given prior written authorization for acceptance of the bid. The LHA shall reject any or all bids when requested in writing by the Department to do so.

(3) Owner-Contractor Agreement. Upon written authorization by the Department, the LHA shall execute an owner-contractor agreement in the form prescribed by the Department. The Agreement shall not be valid until endorsed with the Department's written approval. The LHA shall not:

(a) modify or amend the agreement without prior written concurrence of the Department.

(b) permit the contractor to proceed with the work until authorized in writing by the Department.

(4) Tenant Participation (Modernization). The LHA shall involve tenants of state aided housing in planning modernization projects in accordance with 760 CMR 11.10.

11.06 Allocation of Funds

The LHA shall:

(1) Excess Reserve (Modernization). Use excess operating reserves and capital reserves, if available, before receipt and expenditure of modernization funds for modernization projects.

(2) Separate Accounts. Keep state modernization and development funds separate from other LHA funds.

(3) Reports. Report, as directed by the Department, on the status of funds received by the LHA, including interest.

(4) Prior Department Approval. Make no payments from state modernization and development funds without the Department's approval.

(5) Tenant Participation (Modernization). The LHA shall involve tenants of state aided housing in matters concerning the allocation of modernization funds in accordance with 760 CMR 11.10.

11.07: Construction

(1) Project Representative. Where the Department has determined that the services of a project representative are required, the designer shall advertise for, and select a project representative to monitor daily construction activity. Both the project representative and the project representative's compensation shall require approval of the LHA and the Department.

(2) Contract Officer. The LHA shall designate a contract officer whose function shall be to review payment requisitions from the contractor and to approve periodic payments to the contractor.

(3) Contractor Payments. The LHA shall make payments on the payment requisitions following approval by the contract officer and approval by the Department.

(4) Change Orders. The LHA shall consider requests for change orders in accordance with applicable contract provisions, the Department's procedures, and applicable law.

(a) The Contractor shall submit to the designer specification of any changes in the approved project which the Contractor deems necessary.

(b) The designer shall review the Contractor's request and, if the designer deems a change to be necessary or appropriate shall submit a written request for a change order including specification of the reason for the change order to the LHA and the Department.

(c) The LHA shall review each request for a change order and if it determines it to be necessary or appropriate may approve it subject to the approval of the Department.

(d) The LHA shall transmit a certified extract of the LHA's vote approving any change order together with all pertinent documents to the Department which may approve the change order if it deems it to be necessary or appropriate.

(5) Construction Disputes. Construction disputes between the contractor and designer shall be resolved in the manner specified by the owner-contractor contract and any applicable administrative procedures of the Department.

(6) Tenant Participation (Modernization). The LHA shall involve tenants of state aided housing in decisions relating to the construction of modernization projects in accordance with 760 CMR 11.10.

11.08: Completion of a Project

(1) Acceptance as Substantially Complete. In order for a project to be accepted by the LHA as substantially complete, it must be certified by the designer as being substantially complete in accordance with procedures established by the Department.

(2) Retainage Release. Upon substantial completion in accordance with the owner-contractor agreement, applicable law, and the Department's procedures on contract close-out, the LHA shall release retainage to the Contractor, provided that the LHA, pursuant to advice of the architect, shall reserve sufficient funds for completion of all incomplete and unsatisfactory work, and payment of any direct payment demands and other claims against the contractor.

(3) One Year Inspection. The designer shall inspect the project within one year of substantial completion and shall make a list of all deficiencies. The designer shall forward the list of all deficiencies to the LHA, to the Department, and to the Contractor for prompt remedial action.

11.09: Grant Close-out

After the close-out of any owner-contractor agreement, the LHA shall return funds remaining for the project to the Department, including accrued interest. The LHA may apply to the Department to undertake additional modernization work with all or part of modernization funds remaining after close-out of the agreement.

11.10: Tenant Participation in Modernization Projects

(1) Application Procedures. The LHA shall:

(a) Notify each duly recognized tenant organization when funding rounds are announced by the Department and whenever the LHA plans to seek modernization funds to meet a central safety or energy need or needs. The tenant organization shall be involved in determining the needs and priorities to be included in the application. For this purpose the LHA, working in cooperation with the tenant organization shall schedule a meeting at a time and place when the maximum number of tenants should be able to attend. The LHA shall post notice of the scheduled meeting that indicates the date, time and purpose of the meeting in a conspicuous place in the central office and in each project.

(b) Explain the Modernization Program and application procedures when such meetings are held, and shall answer any questions presented by the tenants relating to the modernization process. For this purpose, the LHA's modernization director, or other individual responsible for the modernization proposal, shall be present at the meeting. The LHA shall consider the tenants' input on needs and priorities and incorporate some or all of such needs and priorities in a draft funding application if deemed by the LHA to be consistent with sound management.

(c) Provide a copy of the draft funding application to each duly recognized tenant organization at least one week prior to submission of the application to the Department. If there is no tenant organization, the LHA shall post a notice within one week of submission advising interested tenants where they can review the draft. The LHA shall make any appropriate changes and shall request that the tenant organization's chairperson or representative of the tenants to sign the application. If the tenant organization and the LHA differ on priorities or inclusion of items in the final application, the LHA shall request a letter from the tenant organization setting out its differences. The LHA shall attach this letter to the application. If there is no tenant organization signature or letter from the tenant organization, the LHA shall include a statement establishing a good cause for the omission..

(2) Allocation of Funds. If awarded funding for a modernization project, the LHA shall notify the chairperson or a representative of each affected tenant organization of the award and make a copy of the contract for financial assistance between the LHA and the Department available upon request by the tenant organization.

(3) Bidding Document Preparation. The LHA shall explain the proposed modernization project to any interested tenants. The consultant and the LHA shall solicit and review comments from the tenants on the proposed modernization improvements and incorporate these comments in the bidding documents if deemed appropriate by the LHA.

(4) Construction. Following award of a contract for a modernization project, the LHA shall:

(a) Inform each affected tenant organization of the award, the construction contract, and the proposed construction schedule.

(b) Inform each affected tenant organization that the material documents relating to the modernization project are available in the LHA's office for inspection.

(c) Attend pre-construction conferences and invite a representative of each affected tenant organization to attend.

(d) Allow no more than two tenant representative observers at any regularly scheduled job meeting.

(5) Tenant Coordinators. The Department may require the services of a tenant coordinator or tenant coordinators for certain jobs. The LHA shall

(a) Select one or more tenant coordinators from a list of tenants, compiled on the basis of applications which have been reviewed, approved, and ranked by the tenant organization. If the LHA desires to pass over any of the ranked tenants, the LHA shall inform the tenant organization of the reasons for disagreement. The Department will mediate any further dispute.

(b) Use the tenant coordinator(s) to expedite construction activities which affect the tenants. The LHA shall pay the tenant coordinator(s) at the rate of one and a half times the prevailing minimum wage. The chairperson of a tenant organization shall be ineligible to receive compensation as a tenant coordinator.

11.11: Waiver by Director of Housing and Community Development

The Director of the Department may waive in writing any provision of 760 CMR 11.00, not otherwise required by applicable law, for good cause shown by the LHA or the Department upon a determination that a waiver will advance the interests of the state-aided housing program and promote the public benefit.

REGULATORY AUTHORITY

760 CMR 11.00: M.G.L. c. 23B, § 6; c. 121B, § 29.