Short Version
CONSTRUCTION REFORM ACT – HIGHLIGHTS
CHAPTER 193 OF THE ACTS OF 2004
Part I – Modest Changes to Public Construction Laws
Designer Selection
- awarding authority may continue services of designer selected to perform feasibility study, into the design development and construction phases. (Sect. 3, G.L.c. 7 sect 38H).
- standardized designer application forms.
- standardized designer selection form and (possible) fee guidelines.
Construction Bid Laws
- threshold for bidding building construction contracts under G.L.c. 149 increased from $25,000 to $100,000. (Sect. 11, G.L.c. 149 sect. 44D).
- building construction contracts valued at $25,000 - $100,000 will be bid under G.L.c. 30 sect. 39M (simpler bid requirements, no contractor certification, no filed sub-bids). Sect. 11, G.L.c. 149 sect. 44(B).
- building construction contracts valued at $10,000 to $25,000, shall be awarded after brief public notice, posting, and/or notice in Central Register.
- Dollar threshold for receipt of filed sub-bids on Chapter 149 projects, increased from $10,000 to $20,000. (Sect. 21, G.L.c. 149 Sect. 44F).
Part 2 – Major Changes to Public Construction Laws
Owner’s Project Manager – Section 13
- Creates new Section 44A ½ of C. 149. On all building construction projects estimated to cost $1,500,000 or more, the public agency must contract for the services of an “owner’s project manager”.
- Owner’s project manager is to be hired before the public agency enters into a design contract, in order to provide services to the owner during the designer selection process and during the planning, design and construction phases.
- Owner’s project manager must be a registered architect/engineer with 5 years construction supervision.
- If the Owner’s project manager is not a registered architect/engineer, he/she must have 7 years construction supervision experience.
- Owner may assign existing employee to be owner’s project manager, if he/she has the requisite experience.
- Owner is to use a “qualifications based selection process” to procure the services of an owner’s project manager. (Does not appear to require agency to follow the designer selection procedure to hire a project manager).
Certification of Filed Sub-Bidders
- new requirement in Section 17 (G.L.c. 149 sect. 44D), requiring all filed sub- bidders to be certified by DCAM, in the same manner general bidders are currently certified.
- DCAM develops regulations, guidelines, standard forms, for evaluating sub- bidders for certification.
- at completion of a building project, public agencies prepare contractor evaluation form on each filed sub-contractor and submit those evaluations to DCAM.
- evaluation of subcontractors are public records.
- public agency indemnifies evaluators in an amount up to $1,000,000, provided they don’t act in a willful, wanton or reckless manner.
Pre-Qualification of General Contractors
- Section 19 establishes a new G.L.c. 149 Section 44D ½.
- For all building construction projects estimated to cost $10,000,000 or more, awarding authority must prequalify general contractors who intend to bid.
- DCAM, MWRA, Massport, UMASS and State College Building Authorities are “exempt” from requirements to pre-qualify general contractors.
- Awarding authorities issue a RFQ and establish a pre-qualification committee.
Pre-Qualification of Sub-Bidders
- Section 19 establishes a new G.L.c. 149 Section 44D ¾.
- For all building construction projects estimated to cost $10,000,000 or more, an awarding authority shall prequalify filed sub-bidders who intend to submit sub-bids on the project.
- “exempt agencies” are exempt from subcontractor prequalification.
Public Construction Alternative Delivery Methods – Chapter 149A
-Section 27 establishes a new standardized procurement procedure for using “alternative delivery methods”.
- “Construction Manager at Risk” is the primary alternative delivery method.
- Public agency must submit an application for Inspector General’s approval, before it may proceed with a Construction Manager at Risk method.
- Construction Manager at Risk method allowed on building construction contracts estimated to cost $5,000,000 or more.
- RFQ, RFP and selection procedures are designated.
- Two Phased selection process RFQ and RFP.
- Contract must be based on a “cost plus not to exceed guaranteed maximum price” compensation method.
- When public agency uses a Construction Manager at Risk method, all trade contracts (in sub-bid categories) are procured after a trade contractor prequalification process.
- Trade Contractor Agreement is part of statute (similar to statutory Form for Subcontract).
Design Build Method
- Design Build alternative procurement method authorized, but it only applies to public works projects (non building construction projects) estimated to cost $5,000,000 or more.
- Public agency must submit application to Inspector General and receive approval, before it may proceed on a design/build method for a public works project.
- Public agency must hire its own design professional to advise/oversee proposal process and technical design.
- MWRA, MHD and Massport may request Inspector General to approve design build procedures and, once Inspector General gives approval, those agencies may use design/build on any public works project.
State College Building Authority
- Section 31 authorizes the State College Building Authority to procure, with Inspector General’s prior approval, building projects estimated to cost $1,000,000 or more, through a “single selection method” which appears to be hybrid between C/M at Risk and design-build methods. Single selection method includes C/M and designer on the same “team”.
Mandatory Affirmative Marketing Program
- New G.L.c. 7 sect. 40N.
- M/WBE set asides are mandatory for all capital facility projects undertaken by DCAM or for any public agency that undertakes a “state assisted” building project. (expands M/WBE program to apply to municipal building projects involving State funding).
- DCAM sets annual M/WBE goal.
- The goal may be adjusted by DCAM for a particular project, based upon the actual availability of M/WBEs.
- In the case of inability to meet the M/WBE goal, the program allows an agency to allow contract to be awarded if there has been a “good faith effort” to meet the goal, even if the goal is not met.
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