2006 Massachusetts Code - Chapter 7 — Section 38H. Consultants; truth-in-negotiations certificate; special conditions; contracts; insurance; penalties for false information.

Section 38H. (a) When the board has required that applicants list consultants which the applicants may employ, in no event shall a consultant be used who is debarred pursuant to section forty-four C of chapter one hundred and forty-nine and any change in or addition to the consultants named in the application and allowed by the board upon appointment must be approved by the commissioner and reported to the board, along with a written statement by the designer or construction manager of the reasons for the change.

(b) If the designer’s or construction manager’s fee is negotiated, the designer or construction manager must file a truth-in-negotiations certificate prior to being awarded the contract by the commissioner, which must be incorporated into the contract. The certificate must contain:

(i) a statement that the wage rates and other costs used to support the designer’s compensation are accurate, complete, and current at the time of contracting; and

(ii) an agreement that the original contract price and any additions to the contract may be adjusted within one year of completion of the contract to exclude any significant amounts if the commissioner determines that the fee was increased by such amounts due to inaccurate, incomplete or noncurrent wage rates or other costs.

(c) The board may specify other special conditions or requirements in selecting a particular applicant as a finalist. If any change is made by the applicant after appointment relating to such special conditions or requirements, the change must be approved by the commissioner and reported to the board along with a written statement by the appointee of the reasons for the change.

[There is no subsection (d).]

(e) Every contract for design services awarded under sections thirty-eight A 1/2 to thirty-eight O, inclusive, shall include the following:

(i) certification that the designer or construction manager has not given, offered or agreed to give any person, corporation or other entity any gift, contribution or offer of employment as an inducement for, or in connection with, the award of the contract for design services;

(ii) certification that no consultant to or subcontractor for the designer or construction manager has given, offered or agreed to give any gift, contribution or offer of employment to the designer or construction manager, or to any other person, corporation, or entity as an inducement for, or in connection with, the award to the consultant or subcontractor of a contract by the designer or construction manager;

(iii) certification that no person, corporation or other entity, other than a bona fide full time employee of the designer or construction manager, has been retained or hired by the designer or construction manager to solicit for or in any way assist the designer or construction manager in obtaining the contract for design services upon an agreement or understanding that such person, corporation or other entity be paid a fee or other consideration contingent upon the award of the contract to the designer; and

(iv) certification with respect to contracts which exceed ten thousand dollars or which are for the design of a building for which the budgeted or estimated construction costs exceed one hundred thousand dollars that the designer has internal accounting controls as required by subsection (c) of section thirty-nine R of chapter thirty and that the designer has filed and will continue to file an audited financial statement as required by subsection (d) of said section thirty-nine R.

(f) A public agency shall not enter into a contract for design services unless the public agency or the designer has obtained professional liability insurance covering negligent errors, omissions and acts of the designer or of any person or business entity for whose performance the designer is legally liable arising out of the performance of the contract. The total amount of such insurance shall at a minimum equal the lesser of one million dollars or ten per cent of the project’s estimated cost of construction, or such larger amounts as the public agency may require, for the applicable period of limitations. A designer required by the public agency to obtain all or a portion of such insurance coverage at his own expense shall furnish a certificate or certificates of insurance coverage to the public agency prior to the award of the contract. For purposes of this paragraph only, “public agency” shall have the meaning set forth in section thirty-nine A.

At the request of the director, a consultant employed by a designer subject to this paragraph shall obtain and maintain a liability insurance policy covering negligent errors, omissions and acts of such consultant or of any person or business entity for whose performance the consultant is legally liable arising out of the performance of the contract for consultant services. The consultant shall furnish a certificate or certificates of such insurance coverage to the division in the case of a consultant hired by a designer selected pursuant to section thirty-eight F or to a public agency not subject to the jurisdiction of said board prior to the employment of such consultant by the designer. A liability insurance policy maintained under this paragraph shall provide for coverage of such type and duration and in such amount as the public agency shall require.

(g) A designer, construction manager, or programmer who has been determined by the board to have provided materially false statements or information under this section shall be disqualified by the board from future work on any project for such time as the board determines is appropriate.

(h) Contracts for design service may include a requirement that the designer be responsible for overseeing the construction phase of the project.

(i) Awarding authorities in cities and towns may allow a designer who conducted a feasibility study to continue with the design of a project; but, nothing herein shall prohibit the awarding authorities from commissioning, at the discretion of the awarding authorities, an independent review, by a knowledgeable and competent individual or business doing such work, of the feasibility of the designer’s work to insure its reasonableness and its adequacy before allowing the designer to continue on the project.

(j) Contracts for design services shall include a provision that the designer or his consultants shall not be compensated for any services involved in preparing changes that are required for additional work that should have been anticipated by the designer in the preparation of the bid documents, as reasonably determined by the executive head of the public agency responsible for administering the design contract. For the purpose of this paragraph, “public agency” shall have the meaning as set forth in section thirty-nine A.