SENATE, No. 1847

SECTION 1. Chapter Thirty of the General Laws is hereby amended by adding after Section 39M the following new section:

            Section 39M1/2     Requirement of Independent Owner’s Representative

(a)        Definitions – The words defined herein shall have the meaning stated below whenever they appear in this Section:

(1)        “Major Contract” shall mean any contract by which the Commonwealth or any of its public agencies is to procure the construction of a highway, railway, bridge, tunnel or aviation facility or any component thereof and for which the certified estimate of cost exceeds fifty million dollars.

(2)        “Certified Estimate of Cost” shall mean a good-faith estimate, based on the best available information and made by the most senior official in the agency responsible for the contract, accounting for all expenses which could be reasonably foreseen, including but not limited to those involving design, construction, management, acquisition and disposition of rights of way, and contingency costs.

(3)        “Owner’s Representative” shall mean an individual registered by the commonwealth as a professional engineer, who has not less than five years of experience in the construction and supervision of construction of the type which is the subject of the pertinent major contract in nature, scope and complexity.

(4)        “Cost-plus” basis shall mean a form of compensation in which a premium is added to the actual cost of service to determine a total amount to be paid.

(5)        “Oversight Cost Estimate” shall mean an estimate developed by the Commonwealth or any agency thereof, prior to the engagement of an owner’s representative, of the anticipated total cost of the services of that representative.

(b)        Owner’s Representative Required – The Commonwealth or any agency or authority thereof shall engage and maintain an owner’s representative to provide professional project oversight with regard to any major contract. Said representative shall be an individual employed by a corporation, partnership, sole proprietorship, joint stock company, joint venture or other entity engaged in the practice of providing project management services for public construction of the nature, scope and complexity which is the subject of the contract. A public agency may designate an existing employee as owner’s representative subject to the conditions set forth in subsection (c).

(c)        Public Employee as Owner’s Representative – An existing employee of a public agency may act as its owner’s representative if the following conditions are met:

(1)        The employee meets or exceeds the qualifications set forth in subsection (b).

(2)        The employee has suitable experience in the construction and supervision of projects of the nature, scope and complexity of the relevant major contract.

(3)        The employee and his employer have entered into a memorandum of understanding, contract or other comparable document establishing the independence of the employee as being equal to that of an owner’s representative contracted from the private sector.

(d)        Independence of Owner’s Representative – An owner’s representative shall certify in writing, under the pains and penalties of perjury, that his sole responsibility shall be to the Commonwealth and the agency which has retained his services. The independent owner’s representative shall be wholly independent of the designer, general contractor or any sub-contractor involved in the public works project, and shall attest to such in a sworn statement.

(e)        Conflicts of Interest Prohibited – An owner’s representative shall be subject to the provisions of Chapter 268A of the General Laws.

(f)         Selection – An owner’s representative shall be selected and retained prior to the award of a major contract by any public agency, provided that such agency shall select and procure the services of the owner’s representative through a process which is documented in writing, incorporates the evaluation of qualifications and experience, and is competitive in nature. Said process shall utilize a system of written applications which shall be retained for inspection for a period of not less than six months following the selection of an owner’s representative. Said process shall also be promulgated in writing by the Office of the Inspector General prior to the commencement of any hiring process pursuant to this Section.

(g)        Nullity of contract – Any major contract executed prior to the selection of an owner’s representative shall be null and void as against public policy. Prior to the award of any major contract, the public agency seeking to award the contract shall certify in writing to the Inspector General that an owner’s representative has been selected.

(h)        Release of Information – Any individual, organization or agency eligible to receive information from an owner’s representative shall do so in a form and manner approved and promulgated by the Inspector General. Upon receipt of such request, the owner’s representative shall respond within sixty days. Such response shall either contain the requested information, indicate why it is not available to the party requesting it, or indicate a date certain when the information will be available, and that it will be provided upon that date.

A party denied information pursuant to this section may appeal such denial to the Inspector General.

(i)  The owner’s representative shall conduct a peer review of engineering elements on its projects.

(j)  The owner’s representative shall be the primary manager of cost recovery and value engineering on the project.

(k) The owner’s representative shall enjoy unfettered access to project work sites, documents, and correspondence.

(l)  The owner’s representative shall file sworn reports on the project, due on December 31 of each years in which their contract is in effect, to the Office of the Inspector General, the Executive Office of Transportation, the Joint Committee on Transportation, and the Auditor of the Commonwealth.

(m) The inspector general shall promulgate regulations governing the operations and actions of owner’s representatives, which shall include, but not be limited to, sanctions for misfeasance, malfeasance and the failure to adhere to any contracts or agreements executed pursuant to this section.

(n)  Financial Remuneration – In no instances may an awarding agency execute a contract that pays the independent owner’s representative on a cost-plus basis. Rather, awarding agencies shall establish an oversight cost estimate for the work of an owner’s representative prior to the hiring of the owner’s representative.

SECTION 2: Chapter One Hundred Forty-Nine A of the General Laws is hereby amended by adding after Section 15, the following section(s):-

Section 15 ½: Requirement of Independent Owner’s Representative

(a)        Definitions – The words defined herein shall have the meaning stated below whenever they appear in this Section:

(1)        “Major Contract” shall mean any contract by which the Commonwealth or any of its public agencies is to procure the construction of a highway, railway, bridge, tunnel or aviation facility or any component thereof and for which the certified estimate of cost exceeds fifty million dollars.

(2)        “Certified Estimate of Cost” shall mean a good-faith estimate, based on the best available information and made by the most senior official in the agency responsible for the contract, accounting for all expenses which could be reasonably foreseen, including but not limited to those involving design, construction, management, acquisition and disposition of rights of way, and contingency costs.

(3)        “Owner’s Representative” shall mean an individual registered by the commonwealth as a professional engineer, who has not less than five years of experience in the construction and supervision of construction of the type which is the subject of the pertinent major contract in nature, scope and complexity.

(4)        “Cost-plus” basis shall mean a form of compensation in which a premium is added to the actual cost of service to determine a total amount to be paid.

(5)        “Oversight Cost Estimate” shall mean an estimate developed by the Commonwealth or any agency thereof, prior to the engagement of an owner’s representative, of the anticipated total cost of the services of that representative.

(b)        Owner’s Representative Required – The Commonwealth or any agency or authority thereof shall engage and maintain an owner’s representative to provide professional project oversight with regard to any major contract. Said representative shall be an individual employed by a corporation, partnership, sole proprietorship, joint stock company, joint venture or other entity engaged in the practice of providing project management services for public construction of the nature, scope and complexity which is the subject of the contract. A public agency may designate an existing employee as owner’s representative subject to the conditions set forth in subsection (c).

(c)        Public Employee as Owner’s Representative – An existing employee of a public agency may act as its owner’s representative if the following conditions are met:

(1)        The employee meets or exceeds the qualifications set forth in subsection (b).

(2)        The employee has suitable experience in the construction and supervision of projects of the nature, scope and complexity of the relevant major contract.

(3)        The employee and his employer have entered into a memorandum of understanding, contract or other comparable document establishing the independence of the employee as being equal to that of an owner’s representative contracted from the private sector.

(d)        Independence of Owner’s Representative – An owner’s representative shall certify in writing, under the pains and penalties of perjury, that his sole responsibility shall be to the Commonwealth and the agency which has retained his services. The independent owner’s representative shall be wholly independent of the designer, general contractor or any sub-contractor involved in the public works project, and shall attest to such in a sworn statement.

(e)        Conflicts of Interest Prohibited – An owner’s representative shall be subject to the provisions of Chapter 268A of the General Laws.

(f)         Selection – An owner’s representative shall be selected and retained prior to the award of a major contract by any public agency, provided that such agency shall select and procure the services of the owner’s representative through a process which is documented in writing, incorporates the evaluation of qualifications and experience, and is competitive in nature. Said process shall utilize a system of written applications which shall be retained for inspection for a period of not less than six months following the selection of an owner’s representative. Said process shall also be promulgated in writing by the Office of the Inspector General prior to the commencement of any hiring process pursuant to this Section.

(g)        Nullity of contract – Any major contract executed prior to the selection of an owner’s representative shall be null and void as against public policy. Prior to the award of any major contract, the public agency seeking to award the contract shall certify in writing to the Inspector General that an owner’s representative has been selected.

(h)        Release of Information – Any individual, organization or agency eligible to receive information from an owner’s representative shall do so in a form and manner approved and promulgated by the Inspector General. Upon receipt of such request, the owner’s representative shall respond within sixty days. Such response shall either contain the requested information, indicate why it is not available to the party requesting it, or indicate a date certain when the information will be available, and that it will be provided upon that date.

A party denied information pursuant to this section may appeal such denial to the Inspector General.

(i)  The owner’s representative shall conduct a peer review of engineering elements on its projects.

(j)  The owner’s representative shall be the primary manager of cost recovery and value engineering on the project.

(k) The owner’s representative shall enjoy unfettered access to project work sites, documents, and correspondence.

(l)  The owner’s representative shall file sworn reports on the project, due on December 31 of each years in which their contract is in effect, to the Office of the Inspector General, the Executive Office of Transportation, the Joint Committee on Transportation, and the Auditor of the Commonwealth.

(m) The inspector general shall promulgate regulations governing the operations and actions of owner’s representatives, which shall include, but not be limited to, sanctions for misfeasance, malfeasance and the failure to adhere to any contracts or agreements executed pursuant to this section.

(n)  Financial Remuneration – In no instances may an awarding agency execute a contract that pays the independent owner’s representative on a cost-plus basis. Rather, awarding agencies shall establish an oversight cost estimate for the work of an owner’s representative prior to the hiring of the owner’s representative.

SECTION 3:  This act shall take effect upon its passage