§ 44B — Plans and specifications; bid deposits

Section 44B. (1) The awarding authority shall prepare for bidding purposes a sufficient number of sets of plans and specifications so that there will be available without cost or charge, except for a fully refundable deposit for return of the same in good condition, one complete set of specifications and plans drawn on a scale of not less than one-eighth inch to one foot except for site plans and which have not been mechanically reduced, for each person requesting the same.The awarding authority shall prepare and update daily a list of persons who have requested a set of plans and specifications, indicating clearly which plans and specifications or pages thereof were requested. Such list shall be posted prominently at the office of the awarding authority and sent on a weekly basis to the central register published by the state secretary pursuant to section twenty of chapter nine, and such other publications as the commissioner designates.(2) Every bid submitted for a contract subject to section forty-four A and every sub-bid submitted in connection with such a contract for a subtrade pursuant to section forty-four F shall be accompanied by a bid deposit in the form of a bid bond, or cash, or a certified check on, or a treasurer's or cashier's check issued by, a responsible bank or trust company, payable to the commonwealth or public agency in the name of which the contract for the work is to be executed. A bid bond shall be (a) in a form satisfactory to the awarding authority, (b) with a surety company qualified to do business in the commonwealth and satisfactory to the awarding authority and (c) conditioned upon the faithful performance by the principal of the agreements contained in the bid.The amount of such bid deposit shall be five per cent of the value of the bid.(3) All bid deposits of general bidders, except those of the three lowest responsible and eligible general bidders, shall be returned within five days, Saturdays, Sundays and legal holidays excluded, after the opening of the general bids. The bid deposits of the three lowest responsible and eligible general bidders shall be returned upon the execution and delivery of the general contract or, if no award is made, upon the expiration of the time prescribed in section forty-four A for making an award; except that, if any general bidder who fails to perform his agreement to execute a contract and furnish a performance bond and also a labor and materials or payment bond as stated in his bid in accordance with section forty-four E, his bid deposit shall become and be the property of the commonwealth or the public agency to which it is payable, as liquidated damages; provided that the amount of the bid deposit which becomes the property of the commonwealth or the public agency shall not, in any event, exceed the difference between his bid price and the bid price of the next lowest responsible and eligible bidder; and provided further that, in case of death, disability, bona fide clerical or mechanical error of a substantial nature, or other similar unforeseen circumstances affecting the general bidder, his bid deposit shall be returned to him.(4) All bids deposits of sub-bidders, except (a) those of the sub-bidders named in the general bids of the three lowest responsible and eligible general bidders and (b) those of the three lowest responsible and eligible sub-bidders for each sub-trade, shall be returned within five days, Saturdays, Sundays and legal holidays excluded, after the opening of the general bids. The bid deposits of sub-bidders not returned pursuant to the preceding sentence shall be returned within 5 days, Saturdays, Sundays, and legal holidays excluded, after the execution of the general contract; except that, if a selected sub-bidder fails to perform his agreement to execute a sub-contract with the general bidder selected as the general contractor, 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 in the general bid by such general bidder, to furnish a performance and payment bond as stated in his sub-bid in accordance with subsection (2) of section 44F, the bid deposit of that sub-bidder shall become and be the property of the commonwealth or the governmental unit thereof to which it is payable, as liquidated damages; provided, that the amount of the bid deposit which becomes the property of the commonwealth or the governmental unit thereof shall not, in any event, exceed the difference between his sub-bid price and the sub-bid price of the next lowest responsible and eligible sub-bidder; and provided further that, in case of death, disability, bona fide clerical or mechanical error of a substantial nature, or other unforeseen circumstances affecting any such sub-bidder, his bid deposit shall be returned to him.(5) In addition to the provisions for the return of bid deposits in the first sentence of subsection (3) and (4) upon a receipt of a bid bond in an amount not less than the amount of the required bid deposit, an awarding authority shall return any bid deposit of a bidder forthwith after public opening of bids. The bid bond shall be in an amount and in the form provided in subsection (2).