Mass. Gen. Laws ch. 149, sec. 44E — MA Code / Part I / Title XXI / Chapter 149 / Section 44E
Filing of bids; forms; modular buildings
Status: in_force

Section 44E. (1) Whenever general bids are invited for a contract subject to section 44A and whenever sub-bids are invited in connection with such a contract subject to subsection (1) of section 44F, the awarding authority shall prescribe 1 place for filing the general bids and 1 place for filing the sub-bids, which need not be the same place. Notwithstanding any general or special law, ordinance or by-law to the contrary, a bidder shall not be required to file a duplicate of his bid or sub-bid in any other place. For all projects where prequalification of general contractors is required, or where an awarding authority has elected to prequalify general contractors pursuant to subsection (a) of section 44D1/2, an awarding authority shall request bids only from general contractors who have been so prequalified pursuant to subsections (a) to (j), inclusive, of section 44D1/2. For all projects where prequalification of subcontractors is required, or where an awarding authority has elected to prequalify subcontractors pursuant to subsection (a) of section 44D3/4, an awarding authority shall request bids only from subcontractors who have been so prequalified pursuant to subsections (a) to (j), inclusive, of section 44D3/4. (2) Every general bid submitted for a contract subject to section forty-four A shall be submitted on a form furnished by the awarding authority and containing the following provisions: FORM FOR GENERAL BID To the Awarding Authority: A. The Undersigned proposes to furnish all labor and materials required for _____________________ in _________________________, (project) Massachusetts, in accordance with the accompanying plans and specifications prepared by ____________________________________ for (name of architect or engineer) the contract price specified below, subject to additions and deductions according to the terms of the specifications. B. This bid includes addenda numbered C. The proposed contract price is dollars ($______). For alternate No._____Add $_____; Subtract $_____ (Repeat preceding line for each alternate) D. The subdivision of the proposed contract price is as follows: Item 1. The work of the general contractor, being all work other than that covered by Item 2. $_____ Item 2. Sub-bids as follows:—

Section 44E. (1) Whenever general bids are invited for a contract subject to section 44A and whenever sub-bids are invited in connection with such a contract subject to subsection (1) of section 44F, the awarding authority shall prescribe 1 place for filing the general bids and 1 place for filing the sub-bids, which need not be the same place. Notwithstanding any general or special law, ordinance or by-law to the contrary, a bidder shall not be required to file a duplicate of his bid or sub-bid in any other place. For all projects where prequalification of general contractors is required, or where an awarding authority has elected to prequalify general contractors pursuant to subsection (a) of section 44D1/2, an awarding authority shall request bids only from general contractors who have been so prequalified pursuant to subsections (a) to (j), inclusive, of section 44D1/2. For all projects where prequalification of subcontractors is required, or where an awarding authority has elected to prequalify subcontractors pursuant to subsection (a) of section 44D3/4, an awarding authority shall request bids only from subcontractors who have been so prequalified pursuant to subsections (a) to (j), inclusive, of section 44D3/4.

(2) Every general bid submitted for a contract subject to section forty-four A shall be submitted on a form furnished by the awarding authority and containing the following provisions:

FORM FOR GENERAL BID

To the Awarding Authority:

A. The Undersigned proposes to furnish all labor and materials required for _____________________ in _________________________,

(project)

Massachusetts, in accordance with the accompanying plans and specifications prepared by ____________________________________ for

(name of architect or engineer)

the contract price specified below, subject to additions and deductions according to the terms of the specifications.

B. This bid includes addenda numbered

C. The proposed contract price is

dollars ($______).

For alternate No._____Add $_____; Subtract $_____

(Repeat preceding line for each alternate)

D. The subdivision of the proposed contract price is as follows:

Item 1. The work of the general contractor, being all work other than that covered by Item 2. $_____

Item 2. Sub-bids as follows:—

The undersigned agrees that each of the above named sub-bidders will be used for the work indicated at the amount stated, unless a substitution is made. The undersigned further agrees to pay the premiums for the performance and payment bonds furnished by sub-bidders as requested herein and that all of the cost of all such premiums is included in the amount set forth in Item 1 of this bid.

The undersigned agrees that if he is selected as general contractor, he will promptly confer with the awarding authority on the question of sub-bidders; and that the awarding authority may substitute for any sub-bid listed above a sub-bid filed with the awarding authority by another sub-bidder for the sub-trade against whose standing and ability the undersigned makes no objection; and that the undersigned will use all such finally selected sub-bidders at the amounts named in their respective sub-bids and be in every way as responsible for them and their work as if they had been originally named in this general bid, the total contract price being adjusted to conform thereto.

E. The undersigned agrees that, if he is selected as general contractor, he will within five days, Saturdays, Sundays and legal holidays excluded, after presentation thereof by the awarding authority, execute a contract in accordance with the terms of this bid and furnish a performance bond and also a labor and materials or payment bond, each of a surety company qualified to do business under the laws of the commonwealth and satisfactory to the awarding authority and each in the sum of the contract price, the premiums for which are to be paid by the general contractor and are included in the contract price; provided, however, that if there is more than 1 surety company, the surety companies shall be jointly and severally liable.

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 made subject to section 44A.

The undersigned further certifies under the penalties of perjury that this 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 General Bidder)

By ________________________________ (Name of Person Signing Bid and Title)

____________________________________ (Business Address)

____________________________________ (City and State)

(3) General bids shall be for the complete work as specified and shall include the names of sub-bidders and the amounts of their sub-bids; and the general contractor shall be selected on the basis of such general bids. Every general bid which is not accompanied by a bid deposit as prescribed by paragraph (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, shall be invalid; and the awarding authority shall reject every such bid. No such bid shall be rejected because of the failure to submit prices for, or information relating to, any item or items for which no specific space is provided in the bid form furnished by the awarding authority, but this sentence shall not be applicable to any failure to furnish prices or information required by this section.

General bids shall be publicly opened and read by the awarding authority forthwith after the time limit for filing thereof.

The bid price shall be the price set forth in a clearly designated place on the bid form for that purpose. No general bid shall be rejected (1) because the sum of the prices for all work of the general contractor and sub-bids does not equal the general bid price set forth on the bid form for that purpose or (2) because of error in setting forth the name, the sub-bid price of a sub-bidder, or the total sub-bids as long as the sub-bidder or sub-bidders designated are clearly identifiable, or (3) because the plans and specifications do not accompany the bid or are not submitted with the bid.

(4) A public agency may procure modular buildings in accordance with the provisions of this section.

The provisions of sections twenty-six to twenty-seven G, inclusive, shall not apply to the manufacture of modular buildings procured pursuant to this section, but shall apply to all work ordinarily and customarily performed on modular buildings at building sites, including, but not limited to, construction of foundations, attachment to external utilities, and installation and assembly of modular unit, including any assembly performed at any site in the commonwealth other than a place of manufacture. All applicable provisions of building codes and other laws shall apply thereto.

The procurement of a modular building shall be deemed a building project for purposes of section thirty-nine A of chapter seven. The division of capital asset management and maintenance shall exercise control and supervision of the procurement of modular buildings by state agencies to the extent provided by sections forty A and forty B of chapter seven.

An awarding authority shall not procure a modular building to replace another modular building unless it has first certified that such replacement is necessary, cost-effective over the long term, and not detrimental to the public policy and interest and has set forth, in writing, a detailed explanation of its reasons for such certification.

When an awarding authority procures modular buildings as authorized by this section the awarding authority shall solicit competitive sealed proposals through a request for proposals which shall include:

(1) the time and date for receipt of proposals, the address of the office to which the proposals are to be delivered, and the maximum time for proposal acceptance by the awarding authority;

(2) the purchase description and all evaluation criteria that will be utilized;

(3) all contractual terms and conditions applicable to the procurement; provided, however, that the contract may incorporate by reference a plan submitted by the selected offeror for providing the modular buildings;

(4) a notice that every proposal shall be accompanied by a copy of an appropriate certificate of eligibility issued by the commissioner pursuant to section forty-four D, together with an update statement; and

(5) except where the request for proposals calls for manufacture or delivery to the building site, a notice that every proposal shall be accompanied by a certification that the offeror is able to furnish labor that can work in concert with all other elements of labor employed or to be employed at the site of installation.

The request for proposals may incorporate documents by reference; provided, however, that the request for proposals specifies where prospective offerors may obtain such documents. The request for proposals shall provide for the separate submission of price, and shall indicate when and how the offerors shall submit the price. The awarding authority shall make copies of the request for proposals available to all persons on an equal basis.

Public notice of the request for proposals for modular buildings shall be published in accordance with the provisions of section forty-four J.

The awarding authority shall not open the proposals publicly, but shall open them in the presence of one or more witnesses at the time specified in the request for proposals. Notwithstanding the provisions of section seven of chapter four, until the completion of the evaluation, or until the time for acceptance specified in the request for proposals, whichever occurs earlier, the contents of the proposals shall remain confidential and shall not be disclosed to competing offerors. At the opening of proposals the awarding authority shall prepare a register of proposals. The register of proposals shall be open for public inspection. The awarding authority may open the price proposals at a later time, and shall open the price proposals so as to avoid disclosure to the individuals evaluating the proposals on the basis of criteria other than price.

The awarding authority shall designate the individual or individuals responsible for the evaluation of the proposals on the basis of criteria other than price. The designated individuals shall prepare their evaluations based solely on the criteria set forth in the request for proposals. Such criteria shall include all standards by which acceptability will be determined as to quality, workmanship, results of inspections and tests, and suitability for a particular purpose, and shall also include all other measures that will be utilized. The evaluations shall specify in writing:

(1) for each evaluation criterion, a rating of each proposal as highly advantageous, advantageous, not advantageous, or unacceptable and the reasons for such rating;

(2) a composite rating for each proposal and the reasons for such rating;

(3) recommendations for revisions, if any, to each proposed plan for providing the modular buildings which should be obtained by negotiation prior to awarding the contract to the offeror of the proposal; and

(4) whether the modular buildings were manufactured within the commonwealth and whether such modular buildings were manufactured within the United States but outside the commonwealth.

The awarding authority shall unconditionally accept a proposal except as provided by this paragraph. An offeror may correct, modify or withdraw a proposal by written notice received in the office designated in the request for proposals prior to the time and date set for the opening of proposals. After such opening, an offeror may not change the price or any other provisions of the proposal in a manner prejudicial to the interest of the awarding authority or fair competition. The awarding authority shall waive minor informalities or allow the offeror to correct them. If a mistake and the intended offer are clearly evident on the face of the document, the awarding authority shall correct the mistake to reflect the intended correct offer and so notify the offeror in writing, and the offeror may not withdraw the offer. The awarding authority may permit an offeror to withdraw an offer if a mistake is clearly evident on the face of the document but the intended correct offer is not similarly evident.

Taking into consideration price and the evaluation criteria set forth in the request for proposals, the awarding authority shall determine the most advantageous proposal from a responsible, responsive, and eligible offeror. In determining the most advantageous proposal, the awarding authority shall give preference, other considerations being equal, in the following order: (a) modular buildings manufactured within the commonwealth; and (b) modular buildings manufactured outside of the commonwealth but within the United States. The awarding authority may condition an award on successful negotiation of any revisions recommended in the evaluation and shall explain in writing the reasons for omitting any such revisions from the contract. The awarding authority shall award the contract by written notice to the selected offeror within the time for acceptance specified in the request for proposals. The parties may extend the time for acceptance by mutual agreement.

If the awarding authority awards the contract to an offeror who did not submit the lowest price, the awarding authority shall explain the reasons for the award in writing, specifying in reasonable detail the basis for determining that the quality of modular buildings under the contract will not exceed the awarding authority's actual needs or that the anticipated performance of the selected offeror justifies the additional cost, and shall maintain such explanation in its files for at least six years from the date of final payment under the contract.

Prior to execution of a contract pursuant to this section, the selected offeror shall furnish to the awarding authority a payment bond and a performance bond of a surety company qualified to issue bonds in the commonwealth and satisfactory to the awarding authority each in the sum of the contract price; provided, however, that if there is more than 1 surety company, the surety companies shall be jointly and severally liable.