[ Text of section effective until January 1, 2013. Repealed by 2012, 165, Sec. 66. See 2012, 165, Sec. 137.]
Section 38P. (a) For the purposes of this section the following words shall have the following meanings unless the context clearly requires otherwise:-
"Agency'', the Massachusetts Department of Transportation, the Massachusetts Port Authority and the Massachusetts Bay Transportation Authority.
"Architectural and engineering services'', (i) professional services of an architectural or engineering nature, as defined by state law, which are required to be performed or approved by a person licensed, registered or certified to provide those services as described herein; (ii) professional services of an architectural or engineering nature performed by contract that are associated with research planning, development, design, investigations, inspections, tests, evaluations, consultations, program management, value engineering, construction, alteration or repair of real property; and (iii) such other professional services of an architectural or engineering nature, or incidental services, which members of the architectural and engineering professions and individuals in their employ may logically or justifiably perform, including studies, investigations, surveying and mapping, soil tests, construction phase services, drawing reviews, evaluations, consultations, comprehensive planning, program management, conceptual designs, plans and specifications, soils engineering, cost estimates or programs, preparation of drawings, plans or specifications, supervision or administration of construction contracts, construction management or scheduling, preparation of operation and maintenance manuals and other related services.
"Firm'', an individual, firm, partnership, corporation, association or other legal entity authorized by law to practice the professions of architecture, engineering, land surveying, landscape architecture, environmental science, planning or program management.
"Public works project'', a capital improvement project or a design, study, plan, survey or new or existing program activity of an agency, including the development of new or existing programs that require architectural, engineering or related professional services; provided, however, that "public works project'' shall not include a public building construction project undertaken under chapters 7, 149 and 149A.
"Related professional services'', (i) professional services, including land surveying, landscape architecture, environmental science and planning, which are required to be performed or approved by a person licensed, registered or certified to provide such services as described herein; (ii) professional services performed by contract that are associated with research, planning, development, design, investigations, inspections, surveying and mapping, tests, evaluations, consultations, comprehensive planning program management, value engineering, construction, alteration or repair of real property; and (iii) such other professional services, or incidental services, which members of the related professions as described herein and individuals in their employ may logically or justifiably perform, including master plans, studies, surveys, soil tests, cost estimates or programs, preparation of drawings, plans or specifications, supervision or administration of construction contracts, construction management or scheduling, conceptual designs, plans and specifications, construction phase services, soils engineering, drawing reviews, cost estimating, preparation of operation and maintenance manuals and other related services; provided, however, that nothing herein shall be construed to constitute a regulation or oversight of any designated firms or identified professionals' services.
(b) For those agencies that prequalify architectural, engineering and related services, the agency shall require firms engaged in the lawful practice of their profession to submit a statement of qualifications and performance data every 2 years to the agency pursuant to the terms and schedule as determined by the agency. Agencies that prequalify shall have the option of selecting firms from their prequalified list of firms based on the agency policies and without further publically advertising the selection.
(c) Whenever a public works project requiring architectural, engineering or related professional services is to be advertised by an agency, the agency shall provide not less than 14 days advance notice published in a professional services bulletin or advertised on the official agency website setting forth the public works project and services to be procured. The professional services bulletin shall be made available to each firm that requests the information. The professional services bulletin shall include a description of each public works project and shall state the time and place for an interested firm to submit a statement of qualifications and, if required by the public notice, a letter of interest and technical proposal. If the agency determines that a sole source selection of a qualified firm is in the best interest of the agency, then the public notice provisions of this subsection shall not apply.
(d) An agency shall evaluate the firms submitting statements of qualifications, taking into account qualifications, letters of interest and technical proposals, and the agency may consider, but shall not be limited to considering, ability of professional personnel, past record and experience, performance data on file, willingness to meet time requirements, location, workload of the firm and any other qualifications based on factors that the agency may determine in writing are applicable. The agency may conduct discussions with, and require presentations by, firms deemed to be the most qualified regarding their qualifications, approach to the public works project and ability to furnish the required services. An agency shall not, prior to selecting a firm for negotiation, seek formal or informal submission of verbal or written estimates of costs or proposals in terms of dollars, hours required, percentage of construction cost or any other measure of compensation.
(e)(1) An agency shall select architects, engineers and related professional firms on the basis of qualifications for the type of professional services required, and on technical proposals, if submitted. An agency may solicit or use pricing policies and proposals or other pricing information to determine consultant compensation only after the agency has selected a firm and initiated negotiations with the selected firm.
(2) The procedures that an agency creates for the screening and selection of firms shall be within the sole discretion of the agency and may be adjusted to accommodate the agency's scope, schedule and budget objectives for a particular public works project.
(3) The decision of an agency that has complied with this chapter shall be final and binding.
(f)(1) The agency and the selected firm shall discuss and refine the scope of services for the public works project and shall negotiate conditions including, but not limited to, compensation level and performance schedule based on scope of services. The compensation level paid shall be reasonable and fair to the agency as determined solely by the agency. In making such determination, the agency shall take into account the estimated value of the services to be rendered and the scope, complexity and professional nature thereof.
(2) If the agency and the selected firm are unable for any reason to negotiate a contract at a compensation level that is reasonable and fair to the agency, the agency shall, in writing, formally terminate negotiations with the selected firm. The agency shall then negotiate with the second ranked most qualified firm. The negotiation process shall continue in this manner through successive ranked firms until an agreement is reached or the agency terminates the consultant contracting process.
(g) This section shall not apply to the procurement of architectural, engineering and related professional services by agencies: (i) when an agency determines in writing that it is in the best interest of the agency to proceed with the immediate selection of a firm; (ii) in emergencies when immediate services are necessary to protect the public health and safety; or (iii) when these services are to be provided as part of a design-build project pursuant to sections 14 to 21, inclusive, of chapter 149A.
(h) Each agency shall evaluate the performance of each firm upon completion of a contract. The evaluation shall be made available to the firm which may submit a written response.