The OIG has prepared a number of publications and other information to assist public officials in contracting for design and construction services. Foremost, the manual - Designing and Constructing Public Facilities - was developed for public officials who manage or oversee public construction projects and need a ready reference on the legal and procedural requirements of the procurement laws that apply to public design and construction contracts in Massachusetts. First published in 1985, the manual provides an overview of the design and construction process in lay terms; it also identifies those steps in the process that are governed by specific statutory requirements and offers guidance and suggestions regarding those steps not governed by statute.
In November 2016, the OIG issued the ninth edition. This updated manual incorporates statutory changes enacted since the previous edition as well as recent interpretations by the Office of the Attorney General. Appendix A includes current contact information for agencies and offices that are involved in the public construction process.
Designer Selection Law: Thresholds Change
On June 15, 2018, Governor Baker signed into law Chapter 113 of the Acts of 2018, An Act Providing for Capital Facility Repairs and Improvements for the Commonwealth. In addition to authorizing funding for many state and local capital projects, the bill amended the designer selection law. See M.G.L. c. 7C, §§ 44-58.
Specifically, Sections 8 to 13 of Chapter 113 raise the threshold amounts in the designer selection law. Jurisdictions must follow the amended designer selection law in awarding any contract for design services for any building construction, reconstruction, alteration, remodeling or repair project with both an estimated design fee of $30,000 or more and an estimated construction cost of $300,000 or more (formerly, $10,000 and $100,000 respectively). This alters when jurisdictions must use an advertised, competitive, qualifications-based selection process to choose a designer for a public building project. The threshold increases became effective June 15, 2018.
Note that when either the estimated design fee is less than $30,000 or the estimated construction cost is less than $300,000, jurisdictions are not subject to the designer selection law. When the designer selection law does not apply, however, the Office of the Inspector General (OIG) recommends soliciting qualifications and price information from at least three design firms when design services are needed for public building projects.
Design and Construction Advice and Bid Protests
The Fair Labor Division of the Office of the Attorney General is responsible for interpreting and enforcing the design and construction laws, including M.G.L. c. 7C, §§ 44-58 (Designer Selection); c. 30, § 39M (Public Works Construction); c. 149, §§ 44A - 44J (Building Construction); and c. 149A (Public Construction alternative delivery methods). Contact the Office of the Attorney General for guidance and information on the design and construction laws or for information on bid protests or to file a complaint regarding payment of prevailing wages. To contact that office, call 617-963-2371 or visit the Fair Labor Division web page.
Alternative Construction Methods
M.G.L. c. 149A, enacted in July 2004, permits Massachusetts awarding authorities to use two alternative delivery methods that differ substantially from the design-bid-build process, subject to specific conditions. For building construction, reconstruction, installation, demolition, maintenance, or repair projects estimated to cost $5 million or more, awarding authorities have the option of using the construction management at-risk (CM at-risk) delivery method. For public works construction, reconstruction, alteration, remodeling, or repair projects estimated to cost $5 million or more, awarding authorities have the option of using the design build delivery method.
Under Chapter 149A, the OIG must determine whether a non-exempt entity is eligible to use CM at-risk or design build. Also, the OIG must approve the alternative construction delivery method procedures to be used on certain building projects conducted by the following exempt entities: the Division of Capital Asset Management and Maintenance (DCAMM), Massachusetts Port Authority (Massport), Massachusetts Bay Transportation Authority (MBTA), Massachusetts Water Resources Authority (MWRA), Massachusetts State College Building Authority, and University of Massachusetts Building Authority, or public works projects conducted by the following entities: MassDOT, Massport, MBTA and the MWRA.