Highlights: Contracting for MSW and Recycling Services
MassDEP Contracting Workshop with John Giorgio, Esq, Kopelman and Page, 11/29/2016
Authorized to sign contracts: Usually only Chief Elected Officials, Town Managers, NOT chief procurement officer, DPW Director or BOH unless authorized by local charter
Term: Contracts, extensions AND renewals >3 years need Town Meeting vote, UNLESS TMtg votes a specific or generic authorization. If extension or renewal makes total contract period >3 years, negotiate new contract, don’t renew.
Cost triggers:
Contracts for >$10K/year must be in writing. No payment >$10K may be made without a contract. Special legislation is the only way to avoid.
Purchases of <$10K require “sound business practices”; should be shopped periodically
Purchases $10K-15K require that 3 quotes be solicited
Purchases >$50K require IFB or RFP.
Liability: Town is liable for pollution from Town-generated waste, make sure contractors have adequate pollution liability insurance, and that the Town is a named insured annually
Hauler only owns “acceptable” waste, Town is liable for “unacceptable” waste. Procedure must be in place to handle and pay.
Prevailing Wage: Town is responsible to collect and review pay sheets, confirm that PW is current and being paid. 30B does not exempt from PW. TAKE THIS SERIOUSLY.
“Subject to Appropriation” should be stated in all contracts. Town would win lawsuit, but contract language prevents the bringing of suit.
Avoid arbitration for dispute resolution, court is better.
30B exemption: disclaimer should be in all solid waste, recycling and compost bids for collection, transport, disposal, and processing. PW still applies. Bidding is still advised.
Advertise in Goods and Services, not the Central Register.
If multiple bids are close and public, all bidders may be sent back to rebid.
Annual Minimum Tonnage/Guaranteed Annual Tonnage: Avoid provision in contract- NOT subject to appropriation. Diverted waste, or reduced waste due to PAYT is exempt from AMT, but should be specified in contract if AMT is included. MGL c 30B, sec 12(f)
IMAs: chief Elected Official(s) may enter into an IMA. District formation requires TMtg. MGL cg40, sec 4A
PAYT: The Chief Elected Officials or whatever body is authorized to set fees may impose PAYT without a vote of the legislative body
Fees: Must pass “Emerson Test”:
1. Covers only the costs associated with the direct service
2. Those who don’t use the service must be able to opt out
3. May not be used to raise revenue or cover indirect costs, i.e. school solid waste
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