Opinion Letter
PW-2009-04-8.6.09

I am in receipt of your letter dated July 17, 2009, addressed to Nicholas Arienti concerning a letter this office wrote to Assistant Attorney General Brian O'Donnell in connection with the XXXX's XXXX High School Replacement Project.

Let me start by clarifying that this office in no way intended to characterize the actions of the City of XXXX as misfeasance. It is my understanding that the City of XXXX procured this project under the alternative procurement provisions of G.L. c. 149A, the so-called Construction Manager at Risk (CM at Risk) method. This is a relatively new method of procurement and does not follow the steps and timeframes common to the traditional public works procurement under G.L. c. 149 to which cities and towns have become accustomed. At your request, I have attached a copy of the email that this office sent to certain state agencies including the Office of the Attorney General, in 2005, soon after G.L. c. 149A was enacted in order to address some of the questions that had arisen at that point in connection with the prevailing wage and its application in the context of CM at Risk projects.

Addressing the specific, enumerated questions in your letter:

1. G.L. c. 149, § 27 requires awarding authorities to request prevailing wage rate schedules "prior to awarding a contract for the construction of public works." This office has determined that, on a CM at Risk project, there is no contract for construction until the parties have executed the GMP Amendment or until the date the first trade contracts are executed.

Prevailing wage rates schedules issued by this office are only effective for 90 days from the date they are issued. As a general rule, on projects bid under G.L. c. 149 or c. 30, § 39M, an awarding authority must request a new schedule if it has not opened bids or selected a contractor within 90 days from the date the rate schedule was issued. Similarly, on a CM at Risk project, if the rate sheets are requested more than 90 days in advance of either the GMP amendment or the first trade contractor bid packages are opened, new rate schedules must be requested. Therefore, as this office's July 15, 2009 letter stated, rates should be requested no sooner than 90 days before the execution date of the GMP amendment or the bid opening date for the first trade contractor bid package, to avoid the need to request them a second time.

2. The anniversary date for requesting annual updates to the prevailing wage rate schedules is the date of the execution date of the first trade contractor contract. This would be the first subcontract for work that would be subject to filed sub-bidding on a G.L. c. 149 contract.

3. See answer to #3 above.

4. On CM at Risk projects, the prevailing wage rate schedule requested prior to the execution of and incorporated into the first trade contractor contact is the rate schedule that should be used on all subsequent contracts, and must be updated annually.

5. Like all parties, the CM may obtain example rate sheets from DOS to use in estimating costs. DOS now has a new online application for requesting prevailing wage rate sheets that enables any member of the public to obtain example rate sheets simply by requesting on them online. Example rate sheets may not be incorporated into contracts for construction as official rate schedules, but may be used to estimate costs or for other informational purposes. The online system may be accessed through DOS' website at: www.mass.gov/dos, click on "prevailing wage program."

I hope this information is helpful. If you have further questions or would like to discuss this matter further, please do not hesitate to contact me.

Sincerely,
Laura M. Marlin
Commissioner