MA Gen L ch 149 § 44d1/2 (2021)
2021 Massachusetts General Laws|Part I - Administration of the Government|Title XXI - Labor and Industries|Chapter 149 - Labor and Industries|Section 44d1/2 - General Contractor Bids; Prequalification Procedures

Section 44D1/2. (a) Notwithstanding section 44E, an awarding authority on contracts subject to section 44A and which are estimated to cost not less than $10,000,000 shall prequalify general contractors to submit general bids in accordance with the provisions of subsections (a) to (j), inclusive; provided, that on such contracts subject to section 44A and which are estimated to cost not less than $100,000 but not more than $10,000,000, an awarding authority may elect to prequalify general contractors to submit general bids in accordance with subsections (a) to (j), inclusive. When prequalifying general contractors, the awarding authority shall initiate said prequalification through the solicitation of responses to a request for qualifications pursuant to subsection (d) of this section.  (b)(1) 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 referred to as ''exempt agencies'', shall not be subject to said subsection (a), but may elect to prequalify general contractors to submit general bids in accordance with the subsections (c) to (j), inclusive.  (2) For cases involving security sensitive information as defined by subclause (n) of clause Twenty-sixth of section 7 of chapter 4 and in order to maintain the confidentiality of security sensitive information, the awarding authority may, with prior approval of the commissioner, implement a prequalification process whereby the awarding authority selects a final list of a minimum of 3 general contractors who are eligible to submit bids and the awarding authority may award a contract to the lowest bidder amongst the final list of bidders. The commissioner of the division of capital asset management and maintenance shall promulgate regulations to implement this paragraph.  (c) Before issuing a request for qualifications, hereinafter referred to as 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 this section.  (d) When prequalifying general contractors, the awarding authority shall initiate the prequalification process through public notice of the building project and the solicitation of responses to the RFQ from general contractors. 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) a general description of the project;  (3) the evaluation procedure and the criteria for the prequalification of general contractors, including the point rating system, and the schedule for the evaluation process;  (4) the anticipated schedule and estimated construction cost for the building project;  (5) a listing of the project team including the awarding authority, the designer, and awarding authority's owner's project manager, if applicable;  (6) a statement indicating that the RFQ will be used to prequalify general contractors who will be invited to submit a bid pursuant to section 44E;  (7) a prohibition against any unauthorized communication or contact with the public agency outside of official pre-bid meetings; and if desired,  (8) any limitation on the size and number of pages to be included in the response to the RFQ desired by the public agency.  (e) The awarding authority shall require interested general contractors to submit a statement of qualifications in response to the RFQ issued pursuant to subsection (d). The RFQ shall require only the information contained in paragraphs (1) to (4), inclusive, of this subsection, and shall identify the specific point allocation for each category and sub-category of information. Within each category of information, public agencies 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, original contract sum, final contract sum with explanation, and date completed of similar projects.  (iv) Terminations, A list of any projects on which the firm was terminated or failed to complete the work.  (v) Legal proceedings, A list of all legal or administrative proceedings currently pending against the general contractor or concluded adversely to the general contractor within the past 5 years which relate to the procurement or performance of any public or private construction contract.  (vi) Safety record, The 3–year history of the firm's workers' compensation experience modifier.  (vii) Compliance Record, Information on and evidence of evidence of the firm's compliance record with respect to minority business enterprise and women business enterprise inclusion goals and workforce inclusion goals, if applicable.  (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 names and the names of the owners and architects, with address, telephone and fax number, and contact person for each.  (ii) Credit references, A minimum of 5 credit references, including the 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 or projects as defined in section 44A during the past 3 years with owner's name, address, telephone and fax number and contact person.  (3) Capacity to Complete Projects (20 points; minimum of 10 required for approval):  (i) Audited financial statement for the most recent fiscal year, provided that financial information submitted shall remain confidential and shall not be a public record under section 7 of chapter 4.  (ii) Revenue under contract for the next 3 fiscal years.  (4) Mandatory requirements, for which no points are assigned:  (i) 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.  (ii) A certificate of eligibility issued by the division of capital asset management and maintenance pursuant to section 44D, showing a capacity rating sufficient for the project, and an update statement.  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 statement of qualifications 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 evaluations, the contents of the statements of qualifications shall be open to the public. The financial information contained in the statements of qualifications shall not be a public record as defined in section 7 of chapter 4.  (h) The prequalification committee established pursuant to subsection (c) shall evaluate each statement of qualifications using solely the criteria provided in the RFQ. Only general contractors achieving a minimum score of 70 shall be prequalified and invited to submit bids consistent with the section 44E. The prequalification committee shall select a minimum of 3 qualified general contractors to submit bids pursuant to said section 44E. Any general contractor invited to submit a bid pursuant to this subsection shall be subject to sections 44B and 44D.  A general contractor's score shall be made available to the general contractor 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 general contractors 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 general contractors to submit bids pursuant to said section (h), then the awarding authority may reject all responses and issue a new request for qualifications, invite general bids pursuant to sections 44B to 44E, inclusive, or, if the awarding authority prequalifies at least 2 general contractors, then the awarding authority may invite bids from the 2 prequalified general contractors. If the awarding authority qualifies less than 3 general contractors to submit 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 general bids pursuant to said sections 44B to 44E, inclusive, without further prequalification, or, if the awarding authority prequalifies at least 2 general contractors, then the awarding authority may invite bids from the 2 prequalified general contractors. An awarding authority re-issuing a request for qualifications under this subsection may stipulate that a general contractor 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 general contractor 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 general contractors for the project.  (j) Regulations and procedures shall be promulgated by the commissioner of the division of capital asset management and maintenance to implement this section and to ensure that the prequalification process set forth in subsections (a) to (i), inclusive, is sufficient, fair and consistent.