2006 Massachusetts Code - Chapter 7 — Section 38E. Project applications; written statements.

Section 38E. (a) No designer, programmer, or construction manager may file an application for any project subject to the board’s jurisdiction unless having first filed with the board a written statement containing the following information:

(i) certification that the applicant legal entity, if applying to perform design services other than preparation of studies, surveys, soil testing, cost estimates or programs, is a designer or construction manager as defined in paragraph (b) of section thirty-eight A 1/2;

(ii) the names and addresses of all partners, if a partnership, of all officers, directors and all persons with an ownership interest of more than five per cent in the applicant if not a partnership;

(iii) the registration number and status of each such person in every jurisdiction in which such person has ever been registered as an architect, landscape architect or engineer;

(iv) a list of all projects for all public agencies within the commonwealth for which the applicant has performed or has entered into a contract to perform design services within the five year period immediately preceding the filing of the information required in this section;

(v) a list of all current projects for which the applicant is performing or is under contract to perform any design services; and

(vi) if the applicant is a joint venture, the information required in this section shall be required for each joint venturer, as well as for the joint venture itself.

(b) The board shall keep a permanent record of the statements filed pursuant to this section and shall require the statements to be made current on a regular basis, and that statements pursuant to subparagraph (v) and (vi) of paragraph (a) be current with each application filed.

(c) An applicant to perform design, programming or construction management services on a project must file, in addition to the statement required under paragraph (a), a written application as prescribed by the board, relating to the applicant’s experience, ability, and qualifications.

(d) The board and its staff shall be allowed access to all records of all public agencies concerning any applicant, or any project for which the applicant performed any services, for the purpose of verifying information submitted by the applicant, or for the purpose of evaluating the applicant’s experience, ability and qualifications.

(e) Every application or statement filed pursuant to this section shall be sworn to under penalties of perjury. A designer, programmer or construction manager who has been determined by the board to have filed materially false information under this section shall be disqualified by the board from further consideration for any project for such time as the board determines is appropriate.

(f) The board shall not advertise for designers nor select any finalists to perform any design services other than the preparation of master plans, studies, surveys, soil tests, cost estimates, or programs unless the deputy commissioner certifies that it is appropriate to do so and either that a program defining the design services required has been prepared, and has been approved by the division, or that no program is required by the division.

(g) The division of capital asset management and maintenance in consultation with the board shall develop a standard designer evaluation form that shall be completed by every public agency, as defined in section 44A of chapter 149, upon completion of the work under a design contract under its control, and submitted to the division and the board for the designer’s qualification file. The official from the public agency or the owner’s representative as described in section 44A of said chapter 149 shall certify that the information contained on the designer evaluation form represents, to the best of his knowledge, a true and accurate analysis of the designer’s performance record on the contract. The public agency shall mail a copy of the designer evaluation form to the designer who may, within 30 days, submit a written response to the division and board disputing any information contained in the form and setting forth any additional information concerning the building project or the oversight of the building construction contract by the public agency as may be relevant to the evaluation of the designer’s performance on the contract. The division and board shall attach any such response to the evaluation form for inclusion in the designer’s qualification file. No public employee or public employer, as defined in section 1 of chapter 258, and no person shall be liable for an injury or loss to a designer as a result of the completion of a designer evaluation form as required by this section unless the individual completing such evaluation form has been found by a superior court of competent jurisdiction to have acted in a willful, wanton or reckless manner. If a suit is commenced by a designer against any person who has completed a designer 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 such person. Such public agency or the commonwealth, where an evaluation was completed for a state agency, shall also indemnify such person from all personal financial losses and expenses including, but not limited to, legal fees and filing costs, if any, in an amount not to exceed $1,000,000, but 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.

The awarding authority shall provide the designer with a written preliminary evaluation at the completion of the schematic phase of the project for informational purposes.

Any public agency that fails to complete and submit the designer evaluation form, together with any written response by any designer, 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 public building or public works projects.