§ 44D — Submission of bid or offer; application for certification

Massachusetts § 44D

• Jurisdiction: Massachusetts
• Part I: ADMINISTRATION OF THE GOVERNMENT
• Title XXI: LABOR AND INDUSTRIES

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Section 44D. (1) (a) Every bid or offer submitted for a contract subject to section forty-four A shall be accompanied by a copy of a certificate of eligibility issued by the commissioner showing that the bidder or offeror has the classification and capacity rating to perform the work required. The bid or offer shall also be accompanied by an update statement in such form as the commissioner shall prescribe. A blank copy of such form shall be furnished by the awarding authority to every person or business entity requesting a copy. The update form shall provide space for information regarding all projects completed by the bidder or offeror since the date of certification of eligibility, all projects which the bidder or offeror currently has under contract including the percentage of work on such projects not completed, the names and qualifications of the personnel who will have supervisory responsibility for the performance of the contract, any significant changes in the bidder's or offeror's financial position or business organization since the date of certification of eligibility, and such other relevant information as the commissioner shall prescribe. The bidder or offeror shall also include in its bid or offer and update statement the list of completed construction projects submitted to the division in its most recent application for contractor certification. Any bid or offer submitted without the appropriate certificate and update statement shall be invalid.(b) The applicant shall certify under penalties of perjury at the conclusion of the application to bid that there have been no substantial changes in his financial position or business organization other than those changes noted within the application since the applicant's most recent prequalification statement and that the bid to be made will be in all respects bonafide, fair and made without collusion or fraud with any other person. ''Person'' here means any natural person, joint venture, partnership, corporation or other business or legal entity which sells materials, equipment or supplies used in or for, or engages in the performance of, the same or similar construction, reconstruction, installation, demolition, maintenance or repair work or any part thereof.(2) The division of capital asset management and maintenance shall accept applications for certification in such form as the commissioner shall prescribe, signed by the applicant under penalties of perjury, supplying information concerning the applicant's form of organization, its principals and key personnel; the applicant's experience on public and private construction projects over the past five years or on the twenty projects most recently completed; all legal or administrative proceedings currently pending against the applicant or concluded adversely to the applicant within the past five years which relate to the procurement or performance of any public or private construction contract, the nature of any financial, personal or familial relationship to any public or private construction project owners listed on the application as constituting prior construction experience; and such other information as the commissioner shall deem relevant to the determination of the applicant's qualifications and responsibility. The application shall include a statement of financial condition prepared by a certified public accountant which shall contain information concerning the applicant's current assets and liabilities, plant and equipment; bank and credit references, bonding company and maximum bonding capacity; and such other information as the commissioner shall deem relevant to an evaluation of the applicant's financial capacity and responsibility. The information contained in the application shall be current at the time of filing; provided, however, that the statement of financial condition shall pertain to the applicant's most recent, completed fiscal year. Any materially false statement in the application or update statement may, in the discretion of the awarding authority, result in termination of any contract awarded the applicant by the awarding authority, and shall constitute cause for debarring the applicant from future public work as provided in section 44C and shall subject the applicant to the punishments for perjury as set forth in section 1 of chapter 268. An application for a certificate of eligibility shall not be a public record as defined in section 7 of chapter 4.(3) The division of capital asset management and maintenance shall evaluate every applicant on the basis of the application and on relevant past performance according to procedures and criteria which the commissioner shall prescribe by regulations or guidelines, including evidence of the applicant's ability to advance the commonwealth's goals under section 44A3/4 and section 6 of chapter 7C. Such criteria shall include the following:— the record of the applicant's performance including, where available, written evaluations of the applicant's performance on public and private jobs over the past five years; the applicant's prior experience on projects of various size and type; the experience and qualifications of supervisory personnel; the maximum amount of work the applicant is capable of undertaking as demonstrated by the applicant's financial condition, bonding capacity, size of previous projects, and present and anticipated work commitments; information on and evidence of the applicant's compliance record with respect to minority-owned business and women-owned business inclusion goals and workforce inclusion goals, if applicable; and any other relevant criteria which the commissioner may prescribe. The regulations and guidelines shall provide that, to the extent possible, the criteria considered shall be assigned separate designated numerical values and weights, and the applicant shall be assigned an overall numerical rating on the basis of all criteria. The applicant shall indicate among categories established by the commissioner the classes of work and aggregate amount of work for which certification is sought. The division of capital asset management and maintenance shall issue a certificate as warranted by the evaluation which shall be effective for one year from the date issued, showing the classes of work and aggregate amount of work on which the applicant is eligible to bid. Said certificate shall include the number of prior construction projects evaluated by the division of capital asset management and maintenance, the contractor's average numerical value on those projects evaluated, and the number of projects given numerical values below a passing score, as defined by the division's regulations or guidelines, during each of the previous 5 years.(4) The division of capital asset management and maintenance shall promptly notify an applicant of its preliminary determination regarding the conditions of the certification, or a denial of certification, or of decertification pursuant to this section, and the reasons therefor. An applicant aggrieved by the division's preliminary determination may, within five business days of receipt of notice, request copies of the information upon which the division relied in making its preliminary determination. Within ten business days of receipt of notice, the applicant may submit further information to the division with a request for reconsideration. The division shall issue a final determination regarding an application for certification within thirty business days from the date of its preliminary determination, unless the applicant and the division agree to extend the thirty day period.Any applicant aggrieved by the final determination of the division may appeal in writing to the attorney general within five business days of receipt of final notice thereof. Within thirty calendar days of such appeal, the attorney general shall investigate the matter and issue a written decision. The attorney general may institute and prosecute proceedings in the superior court to enforce the provisions of this section on the same terms as set forth in section forty-four H. Following such decision by the attorney general, or failure to render a decision within the thirty-day period, either the division or the applicant may seek remedies at law.(5) The commissioner may, upon receipt of additional information regarding a contractor's qualifications, decertify a contractor or reduce the classes of work and amount of work on which the contractor is eligible to bid during the period for which the contractor was prequalified. Upon such a decision, the commissioner shall follow the procedures established by this section.(6) In determining who is the lowest responsible and eligible bidder as required in paragraph (2) of section forty-four A, the awarding authority shall consider the information submitted by the bidder in the update statement. If the awarding authority determines that the low bidder is not responsible and eligible, the awarding authority shall reject the bidder and evaluate the next low bidder in accordance with this section; the awarding authority shall give notice of such action to the division of capital asset management and maintenance.In determining which is the most advantageous offer, the awarding authority shall consider the information submitted by the offer ors on the update statement.(7) The division of capital asset management and maintenance shall develop a standard contractor evaluation form that shall be completed by every public agency as defined in section 44A, upon completion of a building project under its control, and submitted to the division for the contractor's qualification file. The official from the public agency, or the owner's representative, shall certify that the information contained on the contractor evaluation form represents, to the best of his knowledge, a true and accurate analysis of the contractor's performance record on that contract. The public agency shall mail a copy of the contractor evaluation form to the contractor and the contractor shall, within 30 days, submit a written response to the division disputing any information contained in the evaluation form and setting forth any additional information concerning the building project or the oversight of the contract by the public agency that may be relevant to the evaluation of the contractor's performance on the contract. The division shall attach any such response to the evaluation form for inclusion in the contractor's qualification file. No person shall be liable for any injury or loss to a contractor as a result of the completion of a contractor evaluation form as required by this section unless the individual completing the form has been found by a court of competent jurisdiction to have acted in a willful, wanton or reckless manner. If a suit is commenced by a contractor against a public employee, an owner's representative, an architect or an engineer who has completed a contractor evaluation form as required by this section seeking to recover damages resulting from injury caused by such evaluation, the public agency for whom such evaluation form was completed, or the commonwealth if such evaluation was completed for a state agency, shall provide for the legal representation of said employee, owner's representative, architect or engineer. Such public agency, or the commonwealth, shall also indemnify such person from all financial loss and expenses, including but not limited to legal fees and filing costs, in an amount not to exceed $1,000,000. No such person shall be indemnified for losses other than legal fees and filing costs under this section if such person is found by a court or a jury to have acted in a willful, wanton or reckless manner. Evaluations, including any responses submitted by the contractor, submitted to the division pursuant to this subsection shall be a public record as defined in section 7 of chapter 4.At approximately the 50 per cent completion stage of a building project under its control, the awarding authority shall advise the contractor in writing of the awarding authority's preliminary evaluation of the contractor's performance on the project for informational purposes.Any public agency that fails to complete and submit the contractor evaluation form, together with any written response by any contractor, to the division within 70 days of the completion of a project shall be ineligible for the receipt of any public funds disbursed by the commonwealth for the purposes of any public buildings or public works projects.(8) With the exception of subsection (7), this section shall not apply to sub-bidders.(9) The commissioner may issue such rules, regulations, orders, guidelines and policies as deemed necessary or expedient to effectuate the purposes of this section.(10) All applications submitted by contractors for certification in the category of asbestos removal shall contain evidence of a current license issued under section six B. Failure to furnish such evidence shall require the division of capital asset management and maintenance to find the applicant ineligible to bid. A general contractor who subcontracts the asbestos removal work must certify in writing to the awarding authority that if awarded the contract, the general contractor will subcontract the work involving the removal, containment, or encapsulation of asbestos or material containing asbestos to a subcontractor who is licensed under said section six B.In no event shall any public contract involving the removal, containment or encapsulation of asbestos or material containing asbestos be performed by anyone other than a general contractor or subcontractor licensed to perform such work.(11)(i) Every sub-bid submitted for a contract subject to section 44A shall be accompanied by a copy of a certificate of eligibility issued by the commissioner showing that the sub-bidder has been certified to participate on public construction projects and to perform the work required. The sub-bid shall also be accompanied by an update statement in a form as the commissioner shall prescribe. A blank copy of the form shall be furnished by the awarding authority to every person or business entity requesting a copy. The update form shall provide space for information regarding all projects in which the sub-bidder participated on since the date of certification of eligibility, all projects which the sub-bidder currently has under contract including the percentage of work on such projects not completed, the names and qualifications of the personnel who will have supervisory responsibility for the performance of the contract, any significant changes in the sub- bidder's financial position or business organization since the date of certification of eligibility, and such other relevant information as the commissioner shall prescribe. The sub-bidder shall also include in its bid and update statement the list of completed construction projects submitted to the division in its most recent application for subcontractor certification. Any sub-bid submitted without the appropriate certificate and update statement shall be invalid.(ii) The applicant shall certify under penalties of perjury at the conclusion of the application to bid that there have been no substantial changes in his financial position or business organization other than those changes noted within the application since the applicant's most recent update statement and that the sub-bid to be made will be in all respects bonafide, fair and made without collusion or fraud with any other person. As used in this subsection, ''Person'' shall mean any natural person, joint venture, partnership, corporation or other business or legal entity which sells materials, equipment or supplies used in or for, or engages in the performance of, the same or similar construction, reconstruction, installation, demolition, maintenance or repair work or any part thereof.(12) The division of capital asset management and maintenance shall accept applications for subcontractor certification in a form as the commissioner shall prescribe, signed by the applicant under penalties of perjury, supplying information concerning the applicant's form of organization, its principals and key personnel; the applicant's experience on public and private construction projects over the past 3 years or on the 10 projects on which the applicant most recently performed work; all legal or administrative proceedings currently pending against the applicant or concluded adversely to the applicant within the past 3 years which relate to the procurement or performance of any public or private construction contract, the nature of any financial, personal or familial relationship to any public or private construction project owners listed on the application as constituting prior construction experience; and such other information as the commissioner considers relevant to the determination of the applicant's qualifications and responsibility. The application shall include a statement of financial condition prepared by a certified public accountant which shall include, but not necessarily be limited to, information concerning the applicant's current assets and liabilities, bank and credit references, bonding company and maximum bonding capacity; and such other information as the commissioner shall consider relevant to an evaluation of the applicant's financial capacity and responsibility. The information contained in the application shall be current at the time of filing; but, the statement of financial condition shall pertain to the applicant's most recent, completed fiscal year. Any materially false statement in the application or update statement may, in the discretion of the awarding authority, result in termination of any contract awarded the applicant by the awarding authority, and shall constitute cause for debarring the applicant from future public work as provided in section 44C and shall subject the applicant to the punishments for perjury as set forth in section 1 of chapter 268. Applications for a certificate of eligibility shall not be a public record as defined in section 7 of chapter 4.Every applicant shall pay to the division, upon filing his application for subcontractor certification, a nonrefundable fee to be determined annually by the commissioner of administration and finance under section 3B of chapter 7. The application fee shall not be less than $100.(13) The division of capital asset management and maintenance shall evaluate every applicant on the basis of the application and on relevant past performance according to procedures and criteria which the commissioner shall prescribe by regulations or guidelines. Such criteria shall include the record of the applicant's performance including, where available, written evaluations of the applicant's performance on public and private jobs over the past 3 years; the experience and qualifications of supervisory personnel; and any other relevant criteria that the commissioner may prescribe. The regulations and guidelines shall provide that, to the extent possible, the criteria considered shall be assigned separate designated numerical values and weights, and the applicant shall be assigned an overall numerical rating on the basis of all criteria. The applicant shall indicate among categories established by the commissioner the class of work for which certification is sought. The division of capital asset management and maintenance shall issue a certificate as warranted by the evaluation which shall be effective for 1 year from the date issued, showing the class of work on which the applicant is eligible to bid. The certificate shall include the number of prior construction projects evaluated by the division of capital asset management and maintenance, the contractor's average numerical value on those projects evaluated, and the number of projects given numerical values below a passing score, as defined by the division's regulations or guidelines, during each of the previous 3 years.(14) The division of capital asset management and maintenance shall promptly notify an applicant of its preliminary determination regarding the conditions of the certification, or a denial of certification, or of decertification pursuant to this section, and the reasons therefor. An applicant aggrieved by the division's preliminary determination may, within 5 business days of receipt of notice, request copies of the information upon which the division relied in making its preliminary determination. Within 10 business days of receipt of notice, the applicant may submit further information to the division with a request for reconsideration. The division shall issue a final determination regarding an application for certification within 30 business days from the date of its preliminary determination, unless the applicant and the division agree to extend the 30–day period.Any applicant aggrieved by the final determination of the division may appeal in writing to the attorney general within 5 business days of receipt of final notice thereof. Within 30 calendar days of the appeal, the attorney general shall investigate the matter and issue a written decision. The attorney general may institute and prosecute proceedings in the superior court to enforce this section on the same terms as set forth in section 44H. Following the decision by the attorney general, or failure to render a decision within the 30–day period, either the division or the applicant may seek remedies at law.(15) The commissioner may, upon receipt of additional information regarding a subcontractor's qualifications, decertify a subcontractor. Upon that decision, the commissioner shall follow the procedures established by this section.(16) The division of capital asset management and maintenance shall develop a standard subcontractor evaluation form that shall be completed by every public agency as defined in section 44A, upon completion of a building project under its control, and submitted to the division for the subcontractor's qualification file. The official from the public agency, or the owner's representative, shall certify that the information contained on the contractor evaluation form represents, to the best of his knowledge, a true and accurate analysis of the contractor's performance record on that contract. The public agency shall mail a copy of the subcontractor evaluation form to the subcontractor and the subcontractor shall, within 30 days, submit a written response to the division disputing any information contained in the evaluation form and setting forth any additional information concerning the building project or the oversight of the contract that may be relevant to the evaluation of the subcontractor's performance on the contract. The division shall attach any such response to the evaluation form for inclusion in the subcontractor's qualification file. No person shall be liable for any injury or loss to a subcontractor as a result of the completion of a subcontractor evaluation form as required by this section unless the individual completing the form has been found by a court of competent jurisdiction to have acted in a willful, wanton or reckless manner. If a suit is commenced by a subcontractor against a public employee, an owner's representative, an architect or an engineer who has completed a subcontractor evaluation form as required by this section seeking to recover damages resulting from injury caused by such evaluation, the public agency for whom the evaluation form was completed, or the commonwealth if the evaluation was completed for a state agency, shall provide for the legal representation of the employee, owner's representative, architect or engineer. The public agency, or the commonwealth, shall also indemnify the person from all financial loss and expenses, including but not limited to legal fees and filing costs, in an amount not to exceed $1,000,000. No person shall be indemnified for losses other than legal fees and filing costs under this section if the person is found by a court or a jury to have acted in a willful, wanton or reckless manner.Evaluations, including any responses submitted by the contractor, submitted to the division pursuant to this subsection shall be a public record as defined in section 7 of chapter 4.Any public agency that fails to complete and submit the subcontractor evaluation form, together with any written response by any subcontractor, to the division within 90 days of the completion of a project shall be ineligible to receive any public funds disbursed by the commonwealth for the purposes of any public buildings or public works projects.(17) The commissioner may issue rules, regulations, orders, guidelines and policies considered necessary or expedient to effectuate the purposes of this section.