MA Gen L ch 149 § 44d3/4 (2021)
2021 Massachusetts General Laws|Part I - Administration of the Government|Title XXI - Labor and Industries|Chapter 149 - Labor and Industries|Section 44d3/4 - Subcontractor Sub-Bids; Prequalification Procedures

Section 44D3/4. (a) Notwithstanding section 44E, an awarding authority on contracts subject to section 44A which are estimated to cost not less than $10,000,000 shall prequalify subcontractors to submit sub-bids in accordance with the provisions of subsections (a) to (j), inclusive; provided that, on contracts subject to section 44A which are estimated to cost not less than $100,000 and not more than $10,000,000, an awarding authority may elect to prequalify subcontractors to submit sub-bids in accordance with subsections (a) to (i), inclusive. The prequalification process shall be for all sub-bid classes of work listed in subsection (1) of section 44F that meet or exceed the threshold value for sub-bid work of said subsection (1) of said section 44F. When prequalifying the subcontractors, the awarding authority shall initiate the prequalification process through the solicitation of responses to a request for qualifications pursuant to subsection (d) of this section.  (b) Notwithstanding subsection (a), the division of capital asset management and maintenance, the Massachusetts Port Authority, the Massachusetts Water Resources Authority, the Massachusetts State Colleges Building Authority, and the University of Massachusetts Building Authority, hereinafter called exempt agencies, shall not be subject to said subsection (a), but may elect to prequalify subcontractors to submit sub-bids in accordance with subsections (c) to (j), inclusive.  (c) Before issuing a request for qualifications, hereinafter called RFQ, the awarding authority shall establish a prequalification committee for the purpose of reviewing and evaluating responses submitted in response to the RFQ issued pursuant to subsection (d). The prequalification committee shall be comprised of 1 representative of the designer and 3 representatives of the awarding authority. One of the representatives of the awarding authority shall be the owner's project manager if an owner's project manager is required on the building project pursuant to section 44A.5.  (d) When prequalifying subcontractors, the awarding authority shall initiate the prequalification process through public notice of the building project and the solicitation of responses to the RFQ from subcontractors; but, the public notice and solicitation shall include:  (1) the time and date for receipt of responses to the RFQ, the address of the office to which the responses are to be delivered, and the timeframe in which the public agency will respond to said responses;  (2) the evaluation procedure and the criteria for the prequalification of subcontractors, including the point rating system, and the schedule for the evaluation process;  (3) a general description of the project and the subcontractor's class of work;  (4) the anticipated schedule and estimated construction cost for the project;  (5) a listing of the project team including the awarding authority, designer, and awarding authority's owner's project manager, if applicable;  (6) a statement indicating that the RFQ will be used to prequalify subcontractors that will be invited to submit a bid pursuant to sections 44E and 44F;  (7) a prohibition against any unauthorized communication or contact with the awarding authority outside of official pre-bid meetings; and if desired,  (8) a limitation on the size and number of pages to be included in the response to the RFQ.  (e) The awarding authority shall require interested subcontractors to submit a statement of qualifications in response to the RFQ issued pursuant to subsection (d); provided that the RFQ shall require only the information contained in paragraphs (1) to (4), inclusive, of this paragraph, and shall identify the specific point allocation for each category and sub-category of information. Within each category of information, the awarding authorities may use discretion in allocating points among the subcategories, consistent with the total points for the category.  (1) Management Experience (50 points; minimum of 25 required for approval):  (i) Business owners, The name, title, years with firm of the owner(s) of the business.  (ii) Management personnel, The names, title, education and construction experience, years with firm, and list of projects completed by all management personnel.  (iii) Similar project experience, The project name(s), description, description of scope, original trade contract sum, final trade contract sum with explanation and date completed of similar projects.  (iv) Terminations, A list of any projects on which the subcontractor was terminated or failed to complete the work.  (v) Legal proceedings, A list of all legal or administrative proceedings currently pending against the subcontractor or concluded adversely to the subcontractor within the past 3 years which relate to the procurement or performance of any public or private construction contract. Legal proceedings shall not include any actions that primarily involve personal injury or workers' compensation claims, or where the sole cause of action involves the subcontractor's exercise of its rights for direct payment under section 39F of chapter 30.  (vi) Safety Record—The 3 year history of the subcontractor's workers' compensation experience modifier.  (2) References (30 points; minimum of 15 required for approval):  (i) Project references, References from owners and architects for all projects listed in clause (iii) of paragraph (1) including project name, client's name, address, telephone and fax number, and contact person.  (ii) Credit references, A minimum of 5 credit references, including telephone and fax number of contact person from key suppliers, vendors and banks.  (iii) Public project record, A list of all completed public building construction project as defined in section 44A during past 3 years with client's name, address, telephone and fax number and contact person.  (3) Capacity to Complete Projects (20 points; minimum of 10 required for approval):  (i) Annual revenue for prior 3 fiscal years, provided that financial information submitted shall remain confidential and shall not be a public record under section 7 of chapter 4. There shall be no requirement for submission of financial statements.  (ii) Revenue under contract for the next 3 fiscal years.  (4) Mandatory requirement, for which no points are assigned:  A commitment letter for payment and performance bonds at 100 per cent of the estimated contract value from a surety company licensed to do business in the commonwealth and whose name appears on United States Treasury Department Circular 570.  The statement of qualifications shall be signed under pains and penalties of perjury.  (f) The public notice and solicitation required in subsection (d) shall be advertised in a newspaper of general circulation in the area in which the building project is located, in the central register pursuant to section 20A of chapter 9, and within the COMMBUYS system. The public notice and solicitation shall be given not less than 2 weeks before the deadline for submitting responses to the RFQ.  (g) The awarding authority shall not open the responses to the RFQ publicly, but shall open them in the presence of 1 or more witnesses at the time specified in the RFQ. At the opening of responses, the awarding authority shall prepare a register of responders which shall include the name of each responder who submitted a statement of qualifications to said request for qualifications. The register of responders shall be open for public inspection. Upon completion of the evaluation of the responses, the contents of the statements of qualifications shall be open to the public; but, the financial information contained in the statements of qualifications shall not be a public record as defined in section 7 of chapter 4.  (h) Upon receipt of the statement of qualifications submitted by subcontractors, the prequalification committee established pursuant to subsection (c) shall evaluate each statement of qualifications using solely the criteria provided in the RFQ pursuant to paragraph (e). Only subcontractors achieving a minimum score of 70 shall be prequalified and invited to submit bids consistent with the provisions of section 44E. The prequalification committee shall select a minimum of 3 qualified subcontractors to submit bids pursuant to said section 44E. The subcontractor invited to submit a bid pursuant to this subsection shall be subject to section 44B.  A subcontractor's score shall be made available to the subcontractor upon request. The decision of the prequalification committee shall be final and shall not be subject to appeal except on grounds of arbitrariness, capriciousness, fraud or collusion.  (i) Notwithstanding subsections (a) to (h), inclusive, if the awarding authority qualifies less than 3 subcontractors in a particular trade to submit bids pursuant to said subsection (h) and the prequalification process was required pursuant to said subsection (a), the awarding authority shall reject all responses and issue at least 1 new request for qualifications and, if the awarding authority still prequalifies less than 3 subcontractors to submit filed sub-bids pursuant to said subsection (h), then the awarding authority may reject all responses and issue a new request for qualifications, invite filed sub-bids pursuant to sections 44B to 44E, inclusive, without further prequalification, or, if the awarding authority prequalifies at least 2 subcontractors in the particular trade, then the awarding authority may invite bids from the 2 prequalified subcontractors. If the awarding authority qualifies less than 3 subcontractors to submit filed sub-bids pursuant to said subsection (h) and the prequalification process was initiated at the option of the awarding authority pursuant to said subsection (a), the awarding authority may reject all responses and issue a new request for qualifications, invite filed sub-bids pursuant to said sections 44B to 44E, inclusive, without further prequalification, or, if the awarding authority prequalifies at least 2 subcontractors in the particular trade, then the awarding authority may invite filed sub-bids from the 2 prequalified subcontractors. An awarding authority re-issuing a request for qualifications under this subsection may stipulate that a subcontractor prequalified for a particular project during the first prequalification review by the awarding authority will remain prequalified for that particular project without further submission by the subcontractor or review by the awarding authority for not more than 120 days from the due date of the responses from the first request for qualifications issued to subcontractors for the project.  (j) The commissioner of the division of capital asset management and maintenance, in conjunction with the inspector general, shall promulgate regulations and procedures to implement this section and to ensure that the prequalification process set forth in subsections (a) to (i), inclusive, is sufficient, fair and consistent.