1. Does Massachusetts procurement law apply to the Municipal Abatement Funds?
Yes. M.G.L. c. 30B (Chapter 30B) – the law that governs municipal procurement of supplies, services and real property – applies to the expenditure of these funds, subject to certain permitted exceptions and exemptions. These include, for example, an exception for public purpose grant agreements between municipalities and nonprofit entities or individuals (see FAQ # 3), and an exemption for contracts or agreements entered into by a municipal hospital or a municipal department of health (see FAQ # 4).
2. Who can local officials contact with questions about Chapter 30B and Municipal Abatement Funds?
They may contact the Chapter 30B Technical Assistance Hotline at the Office of the Inspector General. The OIG’s Chapter 30B team can provide them with technical guidance and answers to their questions. The team can be reached at 617-722-8838, at 30BHotline@mass.gov, or by submitting the online form. The OIG website also contains several helpful documents, including the Chapter 30B Manual. To obtain more in-depth knowledge, consider taking one of the OIG’s classes, short trainings, or free trainings. For more information, see the OIG training page. The OIG may also offer free trainings on this subject in cooperation with the Attorney General’s Office. Please check the training pages periodically for updates.
3. Is there an exception to Chapter 30B for “grant agreements”?
Yes. Chapter 30B applies to “every contract for the procurement of supplies, services or real property and for disposing of supplies or real property by a governmental body as defined herein.” The definition of services excludes “grant agreements,” which are defined in Section 2 of Chapter 30B, as follows: “an agreement or contract between a governmental body and an individual or a nonprofit entity, the purpose of which is to carry out a public purpose of support or stimulation instead of procuring supplies or services for the benefit or use of the governmental body.” [Emphasis added.]
Municipalities that use Municipal Abatement Funds for public purpose grant agreements as described in Section 2 may do so without using a formal competitive process under Chapter 30B. However, please remember that these grant agreements are still contracts and your jurisdiction should include appropriate terms and conditions, a detailed scope of work and verifiable performance measures in these agreements. Carefully crafted agreements help to ensure compliance and to verify that the recipients used the allocated funds for the intended public purpose.
In addition, grant agreements or contracts that include payment for supplies, equipment and space acquisition should require the reversion of supplies or equipment to your municipality after the contract ends and should only require payment for the space needed for the contracted services for the term of the contract or agreement. Likewise, payments for space-related renovation as part of the contract or agreement should only be made if they are reasonable and required for the vendor to perform the contracted services.
4. Are there Chapter 30B exemptions for contracts with health professionals and local hospitals?
Yes. Section 1 of Chapter 30B contains the following exemptions:
(16) contracts with physicians, dentists, and other health care individuals or persons including nurses, nurses' assistants, medical and laboratory technicians, health care providers including diagnosticians, social workers, psychiatric workers, and veterinarians;
(24) a contract for ambulance service by a governmental body;
(27) contracts or agreements entered into by a municipal hospital or a municipal department of health.
If your municipality intends to use Municipal Abatement Funds to acquire the services of health professionals, ambulance or ambulance service provided transportation, or a municipal hospital or municipal health department intends to acquire services, these procurements may be exempt under Chapter 30B. You must ensure that the services or supply procurement fits the language of the exemption. Contact the Chapter 30B Technical Assistance Hotline if you have any questions (See FAQ # 2.)
5. Does Chapter 30B apply if my municipality uses these funds to compensate in-house staff?
No. Chapter 30B does not apply when you are using public employees (staff) or creating public programs managed and staffed by your employees. However, if you need to purchase supplies or additional services, then Chapter 30B may apply. Also, if you need to acquire additional space, Section 16 of Chapter 30B for the acquisition of real property including leased space would likely apply. Also, if you intend to renovate or perform design- or construction-related work on public space or private space occupied by public programs and staff, then Chapter 7C, the designer selection law, and Chapter 149, the building construction bid law, may apply. For more information, contact the Construction Bid Unit at the Office of the Attorney General at AGOBidUnit@mass.gov or 617-963–2371.
6. Do we need to use a competitive process to lease space for activity related to these funds?
Yes. Section 16 of Chapter 30B would apply to any municipality acquiring or disposing of public property or property intended for public use. Also, if you intend to renovate or perform design or construction related work on public space or private space occupied by public programs and staff, then Chapter 7C, the designer selection law, and Chapter 149, the building construction bid law, may apply. For more information, contact the Construction Bid Unit at the Office of the Attorney General at AGOBidUnit@mass.gov or 617-963-2371.
7. If we plan to contract with nonprofits, do we need to use a competitive process?
If your municipality plans to contract with nonprofits to provide services related to these funds, it can use a competitive process under Chapter 30B, but it does not have to if it uses the grant agreement exception for nonprofits and individuals in Section 2 of Chapter 30B (see FAQ #3 regarding the grant agreement exception and contracting best practices).
8. Can municipalities use these funds to purchase supplies or services under existing contracts?
Yes. Chapter 30B contemplates jurisdictions leveraging existing resources, which may reduce procurement time and costs. You may use existing state contracts offered by the Operational Services Division (OSD) or contracts offered by state agencies to purchase supplies and services relating to the uses of the abatement funds. For example, OSD contract HSP 40: Medical Commodities will allow you to purchase medical supplies for a local program or for a nonprofit with a grant agreement. You many only purchase what is already included in the contract and the contract must be open for use by municipalities.
You may also use any existing cooperative contract for supplies only. Cooperative contracts may be issued by other public entities in the United States. These must be competitive contracts and must be open for use by other jurisdictions. For additional information, see the OIG Bulletin article on cooperative purchasing agreements and collective procurements. Since other states have also received abatement funds, these states or their local jurisdictions may be creating cooperative contracts available for your use as well.
You may also use collective contracts that are different from cooperative contracts. Chapter 30B and M.G.L. c. 7, § 22B authorize collective contracts, sometimes called collaborative contracts, for two or more local jurisdictions to solicit bids for supplies or services as a group. This procurement method allows one local jurisdiction, called “the lead jurisdiction,” to procure supplies and services and award a contract for the benefit of a designated group. The lead jurisdiction undertakes the bid process in full compliance with Chapter 30B, and each participating local jurisdiction must accept sole responsibility for payment for any purchases that it elects to make under the contract and for compliance with all legal requirements governing administration of the contract. Collective contracts could be another option for jurisdictions to leverage their resources, reduce procurement time and costs and share services. For example, two or more abutting towns can share the services of a medical provider or nonprofit agency using the abatement funds.
Contact for Procurement FAQs: Municipal Opioid Abatement Funds
|July 18, 2022