Session Laws

Whereas, The deferred operation of this act would tend to defeat its purpose, which is to immediately exempt cities and towns from certain bidding procedures, therefore it is hereby declared to be an emergency law, necessary for the immediate preservation of the public convenience.

Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority of the same, as follows:

SECTION 1. The legislature finds that the public policy of the commonwealth to construct permanent buildings and facilities for the safe use and enjoyment of its citizens. It is also the policy of the commonwealth to pay prevailing wages of employees engaged in the construction of its public buildings, works and facilities and to insure that public buildings are constructed in conformity with state and local building codes and licensing laws. This legislation is designed to expeditiously meet temporary public needs but is not intended to modify the public policies described in the preceding sentences.

SECTION 1A. No modular building shall be constructed, purchased or otherwise procured by any awarding authority unless it is built in conformity with applicable Massachusetts state and local building codes and regulations.

SECTION 1B. Subsection (e) of section 38C of chapter 7 of the General Laws, as appearing in the 1986 Official Edition, is hereby amended by adding the following sentence:- A contract for the fabrication or installation of modular buildings procured in accordance with the provisions of section forty-four E of chapter one hundred and forty-nine shall be exempt from the jurisdiction of the board.

SECTION 2. Section 38K of said chapter 7, as so appearing, is hereby amended by adding the following subsection:-

(d) Notwithstanding the provisions of subsection (a), a city, town, or agency, board, commission, authority or instrumentality thereof may procure modular buildings in accordance with section forty-four E of chapter one hundred and forty-nine.

SECTION 3. Subsection (1) of section 44A of chapter 149 of the General Laws, as appearing in the 1986 Official Edition, is hereby amended by adding the following two definitions:-

"Modular Building", a pre-designed building or units of a pre-designed building assembled and equipped with internal plumbing, electrical or similar systems prior to movement to the site where such units are attached to each other and such building is affixed to a foundation and connected to external utilities; or any portable structure with walls, a floor, and a roof, designed or used for the shelter of persons or property, transportable in one or more sections and affixed to a foundation and connected to external utilities.

"Procurement", buying, purchasing, or otherwise acquiring and installing a modular building, and all functions that pertain to the acquisition and installation of a modular building, including description of requirements, selection and solicitation of sources, preparation and award of contract, and all phases of contract administration.

SECTION 4. Said subsection (1) of said section 44A of said chapter 149, as so appearing, is hereby further amended by inserting after the word "bidders", in line 17, the following words:- or offerors.

SECTION 5. Subsection (2) of said section 44A of said chapter 149, as so appearing, is hereby amended by adding the following paragraph:-

Notwithstanding the provisions of the preceding paragraph, a public agency may undertake the procurement of modular buildings, in accordance with the provisions of section forty-four E. A public agency may procure site work for modular buildings, including but not limited to, construction of foundations, installations, and attachment to external utilities, or any portion of site work, either in combination with the procurement of modular buildings pursuant to section forty-four E or on the basis of competitive bids pursuant to the foregoing paragraph.

SECTION 6. Subsection (4) of said section 44A of said chapter 149, as so appearing, is hereby amended by striking out the first paragraph and inserting in place thereof the following paragraph:-

In cases of extreme emergency, the awarding authority may, with the prior approval of the deputy commissioner, award a contract for that portion of the work necessary to preserve the health or safety of persons or property on the basis of such competitive bids or proposals as it can obtain in time to care for the extreme emergency and without public opening of the bids or proposals.

SECTION 7. Subsection (1) of section 44D of chapter 149, as so appearing, is hereby amended by striking out paragraph (a) and inserting in place thereof the following paragraph:-

(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 deputy 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 deputy 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 deputy commissioner shall prescribe. Any bid or offer submitted without the appropriate certificate and update statement shall be invalid.

SECTION 8. Subsection (6) of said section 44D of said chapter 149, as so appearing, is hereby amended by adding the following paragraph:-

In determining which is the most advantageous offer, the awarding authority shall consider the information submitted by the offerors on the update statement.

SECTION 9. Section 44E of said chapter 149, is hereby amended by adding the following subsection:-

(4) A public agency may procure modular buildings in accordance with the provisions of this section.

The provisions of sections twenty-six to twenty-seven G, inclusive, shall not apply to the manufacture of modular buildings procured pursuant to this section, but shall apply to all work ordinarily and customarily performed on modular buildings at building sites, including, but not limited to, construction of foundations, attachment to external utilities, and installation and assembly of modular unit, including any assembly performed at any site in the commonwealth other than a place of manufacture. All applicable provisions of building codes and other laws shall apply thereto.

The procurement of a modular building shall be deemed a building project for purposes of section thirty-nine A of chapter seven. The division of capital planning and operations shall exercise control and supervision of the procurement of modular buildings by state agencies to the extent provided by sections forty A and forty B of chapter seven.

An awarding authority shall not procure a modular building to replace another modular building unless it has first certified that such replacement is necessary, cost-effective over the long term, and not detrimental to the public policy and interest and has set forth, in writing, a detailed explanation of its reasons for such certification.

When an awarding authority procures modular buildings as authorized by this section the awarding authority shall solicit competitive sealed proposals through a request for proposals which shall include:

(1) the time and date for receipt of proposals, the address of the office to which the proposals are to be delivered, and the maximum time for proposal acceptance by the awarding authority;

(2) the purchase description and all evaluation criteria that will be utilized;

(3) all contractual terms and conditions applicable to the procurement; provided, however, that the contract may incorporate by reference a plan submitted by the selected offeror for providing the modular buildings; and

(4) a notice that every proposal shall be accompanied by a copy of an appropriate certificate of eligibility issued by the deputy commissioner pursuant to section forty-four D, together with an update statement; (5) except where the request for proposals calls for manufacture and/or delivery to the building site, a notice that every proposal shall be accompanied by a certification that the offeror is able to furnish labor that can work in concert with all other elements of labor employed or to be employed at the site of installation.

The request for proposals may incorporate documents by reference; provided, however, that the request for proposals specifies where prospective offerors may obtain such documents. The request for proposals shall provide for the separate submission of price, and shall indicate when and how the offerors shall submit the price. The awarding authority shall make copies of the request for proposals available to all persons on an equal basis.

Public notice of the request for proposals for modular buildings shall be published in accordance with the provisions of section forty-four J.

The awarding authority shall not open the proposals publicly, but shall open them in the presence of one or more witnesses at the time specified in the request for proposals. Notwithstanding the provisions of section seven of chapter four, until the completion of the evaluation, or until the time for acceptance specified in the request for proposals, whichever occurs earlier, the contents of the proposals shall remain confidential and shall not be disclosed to competing offerors. At the opening of proposals the awarding authority shall prepare a register of proposals. The register of proposals shall be open for public inspection. The awarding authority may open the price proposals at a later time, and shall open the price proposals so as to avoid disclosure to the individuals evaluating the proposals on the basis of criteria other than price.

The awarding authority shall designate the individual or individuals responsible for the evaluation of the proposals on the basis of criteria other than price. The designated individuals shall prepare their evaluations based solely on the criteria set forth in the request for proposals. Such criteria shall include all standards by which acceptability will be determined as to quality, workmanship, results of inspections and tests, and suitability for a particular purpose, and shall also include all other measures that will be utilized. The evaluations shall specify in writing:

(1) for each evaluation criterion, a rating of each proposal as highly advantageous, advantageous, not advantageous, or unacceptable and the reasons for such rating;

(2) a composite rating for each proposal and the reasons for such rating; and

(3) recommendations for revisions, if any, to each proposed plan for providing the modular buildings which should be obtained by negotiation prior to awarding the contract to the offeror of the proposal; and (4) whether the modular buildings were manufactured within the commonwealth and whether such modular buildings were manufactured within the United States but outside the commonwealth.

The awarding authority shall unconditionally accept a proposal except as provided by this paragraph. An offeror may correct, modify or withdraw a proposal by written notice received in the office designated in the request for proposals prior to the time and date set for the opening of proposals. After such opening, an offeror may not change the price or any other provisions of the proposal in a manner prejudicial to the interest of the awarding authority or fair competition. The awarding authority shall waive minor informalities or allow the offeror to correct them. If a mistake and the intended offer are clearly evident on the face of the document, the awarding authority shall correct the mistake to reflect the intended correct offer and so notify the offeror in writing, and the offeror may not withdraw the offer. The awarding authority may permit an offeror to withdraw an offer if a mistake is clearly evident on the face of the document but the intended correct offer is not similarly evident.

Taking into consideration price and the evaluation criteria set forth in the request for proposals, the awarding authority shall determine the most advantageous proposal from a responsible, responsive, and eligible offeror. In determining the most advantageous proposal, the awarding authority shall give preference, other considerations being equal, in the following order: (a) modular buildings manufactured within the commonwealth; and (b) modular buildings manufactured outside of the commonwealth but within the United States. The awarding authority may condition an award on successful negotiation of any revisions recommended in the evaluation and shall explain in writing the reasons for omitting any such revisions from the contract. The awarding authority shall award the contract by written notice to the selected offeror within the time for acceptance specified in the request for proposals. The parties may extend the time for acceptance by mutual agreement.

If the awarding authority awards the contract to an offeror who did not submit the lowest price, the awarding authority shall explain the reasons for the award in writing, specifying in reasonable detail the basis for determining that the quality of modular buildings under the contract will not exceed the awarding authority's actual needs or that the anticipated performance of the selected offeror justifies the additional cost, and shall maintain such explanation in its files for at least six years from the date of final payment under the contract.

Prior to execution of a contract pursuant to this section, the selected offeror shall furnish to the awarding authority a payment bond and a performance bond of a surety company qualified to issue bonds in the commonwealth and satisfactory to the awarding authority each in the sum of the contract price.

SECTION 10. Subsection (1) of section 44J of said chapter 149, as so appearing, is hereby amended by striking out the first sentence and inserting in place thereof the following sentence:- No public agency or authority of the commonwealth or any political subdivision thereof shall award any contract for which competitive bids are required pursuant to section forty-four A of this chapter or section thirty-nine M of chapter thirty, or for which competitive proposals are required pursuant to section forty-four E (4) of this chapter, unless a notice inviting bids or proposals therefor shall have been posted no less than one week prior to the time specified in such notice for the receipt of said bids or proposals in a conspicuous place in or near the offices of the awarding authority, and shall have remained posted until the time so specified, and unless such notice shall also have been published at least once not less than two weeks prior to the time so specified in the central register published by the secretary of state pursuant to section twenty A of chapter nine and in a newspaper of general circulation in the locality of the proposed project.

SECTION 11. Sections one to ten, inclusive, of this act shall take effect upon their passage, and shall apply to any and all procurements of modular buildings commenced on or after July first, nineteen hundred and eighty-eight, but shall not apply to procurements of modular buildings commenced before July first, nineteen hundred and eighty-eight or to modular buildings already in use prior to the effective date of this act, or to procurements of modular buildings under the provisions of any special act in effect prior to August fifteenth, nineteen hundred and eighty-eight, except that the provisions of the fourth paragraph of subsection four of section forty-four E of chapter one hundred and forty-nine of the General Laws, inserted by section nine of this act, shall apply to all modular buildings.