Mass. Gen. Laws ch. 149, sec. 44F — MA Code / Part I / Title XXI / Chapter 149 / Section 44F
Plans and specifications; sub-bids; form; contents
Status: in_force

Section 44F. (1)(a) Every contract subject to section forty-four A shall include specifications and, if deemed necessary or convenient by the awarding authority, plans, detailing all labor and materials to be furnished thereunder. Such specifications shall have a separate section for each of the following classes of work if in the estimate of the awarding authority such class of work will exceed $25,000: (a) roofing and flashing; (b) metal windows; (c) waterproofing, damp-proofing and caulking; (d) miscellaneous and ornamental iron; (e) lathing and plastering; (f) acoustical tile; (g) marble; (h) tile; (i) terrazzo; (j) resilient floors; (k) glass and glazing; (l) painting; (m) plumbing; (n) heating, ventilating and air-conditioning; (o) electrical work, including direct electrical radiation for heating; (p) elevators; (q) masonry work; (r) fire protection sprinkler system as defined in section 81 of chapter 146; and (s) any other class of work for which the awarding authority deems it necessary or convenient to receive sub-bids, provided that the awarding authority may, in addition, receive a combined sub-bid on the marble, tile and terrazzo work, but in that event, the marble, tile and terrazzo work shall each be a class of work for which the sub-bidder must list the information in a clearly designated place on the bid form for that purpose. Each separate section in the specifications prescribed or provided for by this paragraph shall state the time limit for filing sub-bids with the awarding authority, shall specify by number each sheet of plans showing work to be done by the subcontractor under such section, and shall require the subcontractor to install all materials to be furnished by him under such section other than materials which in the opinion of the awarding authority it is not customary under then current trade practices for such subcontractor to install and the installation of which is expressly required by another section of the specifications. Each class of work set forth in a separate section of the specifications pursuant to this section shall be a sub-trade designated in the appropriate category of the general bid form and shall be the matter of subcontract made on the basis of sub-bids in accordance with the procedure set forth in sections forty-four F(1)—(5). Each separate section of the specifications required by the provisions of this section shall contain a paragraph describing by class of work and by reference to paragraph numbers in that section, each class of work, if any, requiring labor and materials which, in the opinion of the awarding authority based upon an investigation of the work involved, is customarily performed in that sub-trade under subcontract with a sub-bidder for that sub-trade, and which is estimated by the awarding authority to cost in excess of $25,000, and only each class of work so described shall be a class of work for which sub-bidder for that sub-trade must list the information required in the appropriate place designated on the bid form for that purpose. Every contract subject to section forty-four A shall include specifications for the installation of weather protection and shall require that the general contractor shall install the same and that he shall furnish adequate heat in the area so protected during the months of November through March. Standards for such specifications shall be established by the commissioner of planning and operations in the executive office for administration and finance. [There is no paragraph (b) of subsection (1).]

Section 44F. (1)(a) Every contract subject to section forty-four A shall include specifications and, if deemed necessary or convenient by the awarding authority, plans, detailing all labor and materials to be furnished thereunder. Such specifications shall have a separate section for each of the following classes of work if in the estimate of the awarding authority such class of work will exceed $25,000: (a) roofing and flashing; (b) metal windows; (c) waterproofing, damp-proofing and caulking; (d) miscellaneous and ornamental iron; (e) lathing and plastering; (f) acoustical tile; (g) marble; (h) tile; (i) terrazzo; (j) resilient floors; (k) glass and glazing; (l) painting; (m) plumbing; (n) heating, ventilating and air-conditioning; (o) electrical work, including direct electrical radiation for heating; (p) elevators; (q) masonry work; (r) fire protection sprinkler system as defined in section 81 of chapter 146; and (s) any other class of work for which the awarding authority deems it necessary or convenient to receive sub-bids, provided that the awarding authority may, in addition, receive a combined sub-bid on the marble, tile and terrazzo work, but in that event, the marble, tile and terrazzo work shall each be a class of work for which the sub-bidder must list the information in a clearly designated place on the bid form for that purpose. Each separate section in the specifications prescribed or provided for by this paragraph shall state the time limit for filing sub-bids with the awarding authority, shall specify by number each sheet of plans showing work to be done by the subcontractor under such section, and shall require the subcontractor to install all materials to be furnished by him under such section other than materials which in the opinion of the awarding authority it is not customary under then current trade practices for such subcontractor to install and the installation of which is expressly required by another section of the specifications. Each class of work set forth in a separate section of the specifications pursuant to this section shall be a sub-trade designated in the appropriate category of the general bid form and shall be the matter of subcontract made on the basis of sub-bids in accordance with the procedure set forth in sections forty-four F(1)—(5).

Each separate section of the specifications required by the provisions of this section shall contain a paragraph describing by class of work and by reference to paragraph numbers in that section, each class of work, if any, requiring labor and materials which, in the opinion of the awarding authority based upon an investigation of the work involved, is customarily performed in that sub-trade under subcontract with a sub-bidder for that sub-trade, and which is estimated by the awarding authority to cost in excess of $25,000, and only each class of work so described shall be a class of work for which sub-bidder for that sub-trade must list the information required in the appropriate place designated on the bid form for that purpose.

Every contract subject to section forty-four A shall include specifications for the installation of weather protection and shall require that the general contractor shall install the same and that he shall furnish adequate heat in the area so protected during the months of November through March. Standards for such specifications shall be established by the commissioner of planning and operations in the executive office for administration and finance.

[There is no paragraph (b) of subsection (1).]

(2) Every sub-bid submitted in connection with a contract subject to section forty-four A for a sub-trade designated in item 2 of the general bid form pursuant to section forty-four E shall be submitted on a form furnished by the awarding authority and containing the following provisions:

FORM FOR SUB–BID

To all General Bidders Except those Excluded:

A. The undersigned proposes to furnish all labor and materials required for completing, in accordance with the hereinafter described plans, specifications and addenda, all the work specified in Section No. ___ of the specifications and in any plans specified in such section, prepared by

___________________________________________ for _____________ in

(name of architect or engineer)(project) __________________________________, Massachusetts, for the contract

(city or town)

sum of ________________________ dollars ($_________________).

For Alternate No. ______; Add $______ Subtract $______

[Repeat preceding line for each alternate]

B. This sub-bid includes addenda numbered ____________

C. This sub-bid □ may be used by any general bidder except:

___________________________________________________________________ ___________________________________________________________________

□ may only be used by the following general bidders:

___________________________________________________________________ ___________________________________________________________________ <\//centw>

[To exclude general bidders, insert ''X'' in one box only and fill in blank following that box. Do not answer C if no general bidders are excluded.]

D. The undersigned agrees that, if he is selected as a sub-bidder, he will, within 5 days, Saturdays, Sundays and legal holidays excluded, after presentation of a subcontract by the general bidder selected as the general contractor, execute with such general bidder a subcontract in accordance with the terms of this sub-bid, and contingent upon the execution of the general contract, and, if requested so to do in the general bid by the general bidder, who shall pay the premiums therefor, or if prequalification is required pursuant to section 44D3/4, furnish a performance and payment bond of a surety company qualified to do business under the laws of the commonwealth and satisfactory to the awarding authority, in the full sum of the subcontract price.

E. The names of all persons, firms and corporations furnishing to the undersigned labor or labor and materials for the class or classes or part thereof of work for which the provisions of the section of the specifications for this sub-trade require a listing in this paragraph, including the undersigned if customarily furnished by persons on his own payroll and in the absence of a contrary provision in the specifications, the name of each such class of work or part thereto and the bid price for such class of work or part thereof are:

[Do not give bid price for any class or part thereof furnished by undersigned.]

F. The undersigned agrees that the above list of bids to the undersigned represents bona fide bids based on the hereinbefore described plans, specifications and addenda and that, if the undersigned is awarded the contract, they will be used for the work indicated at the amounts stated, if satisfactory to the awarding authority.

G. The undersigned further agrees to be bound to the general contractor by the terms of the hereinbefore described plans, specifications, including all general conditions stated therein, and addenda, and to assume toward him all the obligations and responsibilities that he, by those documents, assumes toward the owner.

H. The undersigned offers the following information as evidence of his qualifications to perform the work as bid upon according to all the requirements of the plans and specifications:—

1. Have been in business under present business name ___________________________________________________________________ <\/centw>years.

2. Ever failed to complete any work awarded? ___________________________________________________________________ <\/centw>

3. List one or more recent buildings with names of the general contractor and architect on which you served as a sub-contractor for work of similar character as required for the above-named building.

4. Bank reference _____________________

4. Bank reference ___________________________________________________________________

I. The undersigned hereby certifies that he is able to furnish labor that can work in harmony with all other elements of labor employed or to be employed on the work; that all employees to be employed at the worksite will have successfully completed a course in construction safety and health approved by the United States Occupational Safety and Health Administration that is at least 10 hours in duration at the time the employee begins work and who shall furnish documentation of successful completion of said course with the first certified payroll report for each employee; and that he will comply fully with all laws and regulations applicable to awards of subcontracts subject to section 44F.

The undersigned further certifies under penalties of perjury that this sub-bid is in all respects bona fide, fair and made without collusion or fraud with any other person. As used in this subsection the word ''person'' shall mean any natural person, joint venture, partnership, corporation or other business or legal entity. The undersigned further certifies under penalty of perjury that the said undersigned is not presently debarred from doing public construction work in the commonwealth under the provisions of section twenty-nine F of chapter twenty-nine, or any other applicable debarment provisions of any other chapter of the General Laws or any rule or regulation promulgated thereunder.

Date ______________

____________________________________ (Name of Sub-bidder)

By _________________________________

(Title and Name of Person Signing Bid)

____________________________________ (Business Address)

____________________________________ (City and State)

(3) Every sub-bid in connection with a contract subject to section forty-four A for a sub-trade designated on the general bid form pursuant to section forty-four F(2) shall be for the complete work of the sub-trade as specified, and shall be filed with the awarding authority, in a sealed envelope, before twelve o'clock noon at least four days, Saturdays, Sundays and legal holidays excluded, before the day fixed by the awarding authority for the opening of general bids, and forthwith after the time limit for the filing thereof shall be publicly opened and read by the awarding authority, which, within two days thereafter, Saturdays, Sundays and legal holidays excluded, shall reject every sub-bid which is not accompanied by a bid deposit as prescribed in sub-section (2) of section forty-four B, or which otherwise does not conform with sections forty-four A to forty-four H, inclusive, or which is on a form not completely filled in, or which is incomplete, conditional or obscure, or which contains any addition not called for; provided, however, that the failure of the awarding authority to reject such a sub-bid within such period shall not validate such a sub-bid nor preclude the awarding authority from subsequently rejecting it. Not later than the second day, Saturdays, Sundays and legal holidays excluded, before the day fixed by the awarding authority for the opening of general bids, the awarding authority shall mail to every person on record as having taken a set of plans and specifications list of sub-bidders arranged by sub-trades and listing for each sub-trade the name, address and sub-bid price of every sub-bidder submitting a sub-bid thereon not rejected by the awarding authority and the general bidders excluded from using such sub-bid. A person shall not be named by a general bidder as a sub-bidder for a sub-trade on the general bid form unless such person is included for such sub-trade in said list. If a general bidder not excluded in said list from doing so names as a sub-bidder for a sub-trade on the general bid form a person included for such sub-trade in said list at the sub-bid price stated in said list, neither the general bid of such general bidder nor the general contract executed on the basis of such general bid shall be invalid or rejected because of the invalidity of such sub-bid, or because of error in said list, nor shall such general bid be rejected nor shall such general contract be invalid because of any invalid action taken by the awarding authority in connection with any sub-bid or sub-bids; but there shall be substitution of sub-bidders and adjustment of contract price as if paragraph (c) of section forty-four F(4) were applicable. No sub-bid shall be rejected because of the failure to submit prices for or information relating to, any item or items for which no space is provided in the sub-bid form furnished by the awarding authority; but this sentence shall not be applicable to any failure to furnish prices or information required by section forty-four F to be furnished in the Form for Sub–Bid.

Every sub-bidder duly filing a sub-bid with the awarding authority as aforesaid shall be bound thereby to every general bidder not excluded therein from the use thereof; and any variance from such sub-bid communicated to a general bidder shall be of no effect.

A performance and payment bond furnished by the subcontractor, either pursuant to the requirements of the prequalification process as established in section 44D3/4 or at the request of a general contractor set forth in the general bid form, shall be for the benefit of the general contractor; shall secure the performance of the subcontract by the subcontractor; and shall indemnify and hold harmless the general contractor and the surety or sureties under the labor and materials or payment bond furnished by the general contractor to the awarding authority against (i) any and all loss and expense arising out of any and all claims in connection with the performance of the subcontract which would be required to be paid under the labor and materials or payment bond furnished by the general contractor to the awarding authority and (ii) attorneys' fees in the event that the subcontractor, after notice, fails to assume the defense of and defend such claims.

Each sub-bidder shall list in the sub-bid form the name and bid price of each person, firm or corporation performing each class of work or part thereof for which the section of the specifications for that sub-trade requires such listing; provided that, in the absence of a contrary provision in the specifications, any sub-bidder may, without listing any bid price, list his own name for any such class of work or part thereof and perform that work with persons on his own payroll, if such sub-bidder, after sub-bid opening, shows to the satisfaction of the awarding authority that he does customarily perform such class of work or the part thereof with employees on his own payroll who are mechanics or laborers as referred to in section twenty-six, and is qualified so to do.

If a sub-trade for which the awarding authority is required to take filed sub-bids constitutes the predominant work of the contract, the awarding authority may include that sub-trade work as part of the general bidder's work. The awarding authority shall award the general contract to the lowest responsible and eligible bidder who customarily performs that sub-trade with employees on his own payroll who are mechanics or laborers as referred to in said section twenty-six, except for any part of that sub-trade customarily performed by sub-contractors.

(4)(a)(1) If no sub-bid is filed for a sub-trade designated in the general bid form or if the only sub-bids which are filed are restricted to the use of one or more general bidders, the awarding authority may state, in an addendum issued with the list of sub-bidders required by subsection (3), that the general bidder shall include in the cost of his own work an amount to cover all the work required for any such sub-trade. The general contractor shall cause the work covered by such sub-trade to be done by a qualified and responsible sub-contractor, subject to the written approval of the awarding authority. If the awarding authority determines that any sub-contractor chosen by the general contractor under this section is not qualified or responsible, the general contractor shall obtain another sub-contractor who is satisfactory to the awarding authority with no adjustment in the general contractor's price.

(2) If a rejection of all sub-bids, other than as set forth above, for such a sub-trade occurs pursuant to subsection (1) of section forty-four E or subsection (3) of this section, the awarding authority shall state, in an addendum issued with the list of sub-bidders required by said subsection (3), the amount to be included by a general bidder on the general bid form for such sub-trade; and without in any way affecting other sub-bidders who have conformed to the prescribed bidding procedure, new sub-bids for such sub-trade shall be requested forthwith by written invitation to three or more qualified sub-bidders and shall be publicly opened and read by the awarding authority at a time and place to be specified in such invitation. The general contractor shall cause the work covered by such sub-trade to be done by the lowest responsible and eligible sub-bidder against whose standing and ability the general contractor makes no objection or, if there is no such sub-bidder, by such sub-contractor against whose standing and ability the general contractor makes no objection and for such sum as the general contractor and the awarding authority may agree upon; and the contract price shall be adjusted by the difference between the sub-contract sum and the amount stated in the addendum. The general bidder shall include in the cost of his own work on the general bid form all expenses and profits on account of such adjustments.

(b) If, after the selection of the lowest responsible and eligible general bidder, it be decided to consider sub-bidders other than the ones named by such general bidder in his general bid, the awarding authority and such general bidder shall jointly consider all filed sub-bids not rejected under section forty-four F(3). Any agreement to substitute a sub-bid for the one named in the selected general bid shall result in an adjustment of the general bid price by the difference between the amount of the sub-bid originally named and the amount of the sub-bid substituted therefor. If by such substitutions the total adjusted general bid price of the general bidder first selected becomes greater than the original general bid price of the second lowest responsible and eligible general bidder, then the latter shall be selected and his sub-bidders similarly considered. If, by substitutions as hereinbefore provided, the total adjusted general bid price of the second selected general bidder becomes greater than the total adjusted general bid price of the general bidder first selected or greater than the original general bid price of the third lowest responsible and eligible general bidder, then the bidder having the lower of these two general bid prices shall be selected; provided, that if the third lowest responsible and eligible general bidder is selected, his sub-bidders shall be similarly considered. The general bidder finally selected by the aforementioned process of substitutions shall be the general bidder to whom the contract shall be awarded.

(c) If a selected sub-bidder fails, within 5 days, Saturdays, Sundays and legal holidays excluded, after presentation of a subcontract by the general bidder selected as the general contractor, to perform his agreement to execute a subcontract in the form hereinafter set forth with such general bidder, contingent upon the execution of the general contract, and, if required to do so pursuant to the prequalification process under section 44D3/4 or if requested to do so by such general bidder in the general bid, to furnish a performance and payment bond as stated in his sub-bid such general bidder and the awarding authority shall select, from the other sub-bids duly filed with the awarding authority for such sub-trade and not rejected under section 44H the lowest responsible and eligible sub-bidder at the amount named in his sub-bid as so filed against whose standing and ability the general contractor makes no objection, and the contract price shall be adjusted by the difference between the amount of the sub-bid and the amount of the sub-bid of the delinquent sub-bidder.

The subcontract shall be in the following form:

SUBCONTRACT

THIS AGREEMENT MADE THIS ___ DAY OF ___ (insert year), by and between ___ a corporation organized and existing under the laws of ___ an individual doing business as ___ hereinafter called the ''Contractor'' and ___ a corporation organized and existing under the laws of ___ an individual doing business as ___ hereinafter called the ''Subcontractor''.

WITNESSETH that the Contractor and the Subcontractor for the considerations hereafter named, agree as follows:

1. The Subcontractor agrees to furnish all labor and materials required for the completion of all work specified in Section No. ______________ of the specifications for __________________________ (Name of Sub-Trade) and the plans referred to therein and addenda No. _____________, _________________, _________________, and _________________ for the ___________________________________________________________________ (complete title of the project and the project number taken from the title page of the specifications)all as prepared by ___________________________________________________________________ (Name of Architect or Engineer) <\//y>for the sum of ___ ($___) and the Contractor agrees to pay the Subcontractor said sum for said work. This price includes the following alternates (and other items set forth in the sub-bid): Alternate No(s). , , , , , , , , , , , , ___

(a) The Subcontractor agrees to be bound to the Contractor by the terms of the hereinbefore described plans; specifications (including all general conditions stated therein) and addenda No. , and , and , and to assume to the Contractor all the obligations and responsibilities that the Contractor by those documents assumes to the ___________________________________________________________________ (Awarding Authority) <\//y><\//centw> hereinafter called the ''Awarding Authority'', except to the extent that provisions contained therein are by their terms or by law applicable only to the Contractor.

(b) The Contractor agrees to be bound to the Subcontractor by the terms of the hereinbefore described documents and to assume to the Subcontractor all the obligations and responsibilities that the Awarding Authority by the terms of the hereinbefore described documents assumes to the Contractor, except to the extent that provisions contained therein are by their terms or by law applicable only to the Awarding Authority.

2. The Contractor agrees to begin, prosecute and complete the entire work specified by the Awarding Authority in an orderly manner so that the Subcontractor will be able to begin, prosecute and complete the work described in this subcontract; and, in consideration thereof, upon notice from the Contractor, either oral or in writing, the Subcontractor agrees to begin, prosecute and complete the work described in this Subcontract in an orderly manner and with due consideration to the date or time specified by the Awarding Authority for the completion of the entire work.

3. The Subcontractor agrees to furnish to the Contractor within a reasonable time after the execution of this subcontract, evidence of workers' compensation insurance as required by law and evidence of public liability and property damage insurance of the type and in limits required to be furnished to the Awarding Authority by the Contractor.

4. The Contractor agrees that no claim for services rendered or materials furnished by the Contractor to the Subcontractor shall be valid unless written notice thereof is given by the Contractor to the Subcontractor during the first ten (10) days of the calendar month following that in which the claim originated.

5. This agreement is contingent upon the execution of a general contract between the Contractor and the Awarding Authority for the complete work.

IN WITNESS WHEREOF, the parties hereto have executed this agreement the date and year first above-written.

SEAL ATTEST ______________________ _______________________________ (Name of Subcontractor)

By ____________________________

SEAL ATTEST ______________________ _______________________________ (Name of Contractor)

By ____________________________

In the event that the contract between the general contractor and the awarding authority does not contain provisions granting to the awarding authority the right to terminate the general contract when the general contractor encounters financial difficulties or fails to make satisfactory progress, the general contractor may insert the following paragraph:

If the Subcontractor should be adjudged a bankrupt, or if he should make a general assignment for the benefit of his creditors, or if a receiver should be appointed on account of his insolvency, or if he should persistently or repeatedly refuse or should fail, except in cases for which extension of time is provided, to supply enough properly skilled workmen or proper materials, or if he should fail to make prompt payment to subcontractors or for material or labor, or persistently disregard laws, ordinances or the instructions of the Contractor, or otherwise be guilty of a substantial violation of any provision of the contract, then the Contractor may, without prejudice to any other right or remedy and after giving the Subcontractor and his surety, if any, seven days' written notice, terminate the employment of the Subcontractor and take possession of the premises and of all materials, tools and appliances thereon and finish the work by whatever method he may deem expedient. In such case the Subcontractor shall not be entitled to receive any further payment until the work is finished. If the unpaid balance of the contract price shall exceed the expense of finishing the work including compensation for additional architectural, managerial and administrative services, such excess shall be paid to the Subcontractor. If such expense shall exceed such unpaid balance, the Subcontractor shall pay the difference to the Contractor.

The contractor and subcontractor shall have the right to seek damages for breach of a subcontract without terminating the subcontract or ceasing performance thereunder.

All sub-bidders when finally selected shall be notified in writing of their selection within forty-eight hours thereafter by the general bidder.

In each case of substitution of a sub-bidder for a sub-bidder listed in the general bid of the selected general contractor, the selected general contractor may require the substituted sub-bidder to furnish a performance and payment bond, and the premiums for same shall be added to the general bidder's price for work to be performed by him except where the selected general contractor had indicated in his general bid that the original sub-bidder designated for that sub-trade, in which substitution was made, would be required to furnish such bond.

In the instances enumerated in paragraphs (1), (2) and (3) of this section, the general bidder's price for work to be performed by him shall also be adjusted by the amount of the change in the premium for the general contractor's performance bond and his labor and materials or payment bond caused by the substitution.

(5) If a general bidder customarily performs, with employees on his own payroll who are mechanics or laborers as referred to in section twenty-six, a sub-trade for which the awarding authority invites sub-bids, he may submit a sub-bid for such sub-trade which shall be considered on a par with other sub-bids, and he shall also list under the appropriate sub-bid category in his general bid his own name and sub-bid price for such sub-trade. No such sub-bid shall be considered unless the general bidder can show (a) he does so customarily perform such sub-trade, and (b) he is qualified to do the sub-trade work.

In lieu of listing his name and sub-bid price in his general bid, such general bidder may list the name and amount of the lowest responsible and eligible sub-bidder for that sub-trade if (a) such sub-bidder's price is lower than his, (b) such sub-bid is available for his use; and (c) such sub-bid is not restricted to his use alone or to his use and that of another general bidder, or bidders.