[HISTORY: Adopted by the Board of Selectmen of the Town of
Northbridge 12-19-2011. Amendments noted where applicable.]
These procedures govern the selection of an architect or engineer
to provide designer services for any Town building project subject
to the State Designer Selection Law, MGL c. 7, §§ 38A1/2-O.
"Designer services" include the preparation of master plans, feasibility
and other studies, surveys, soil tests, cost estimates and programs;
preparation of drawings, plans, and specifications, including schematic
drawings and preliminary plans and specifications; supervision or
administration of a construction contract; and construction management
and scheduling (MGL c. 7, § 38A1/2). Any other local law
governing the procurement of services will be inapplicable to these
procurements.
The Board of Selectmen and Building, Planning and Construction
Committee ("awarding authority") have the authority to conduct the
designer selection process for the Town, unless another Town officer,
board or committee is so designated by vote of the Town Meeting. The
awarding authority may delegate any duties described herein to the
extent such delegation is permissible by law.
A.
The awarding authority shall designate the individual or group of
individuals (hereinafter referred to as "the Committee") who will
conduct the designer selection process.
B.
No member of the Committee shall participate in the selection of
a designer for any project if the member, or any of the member's
immediate family:
(1)
Has a direct or indirect financial interest in the award of the design
contract to any applicant;
(2)
Is currently employed by, or is a consultant to or under contract
to, any applicant;
(3)
Is negotiating or has an arrangement concerning future employment
or contracting with any applicant; or
(4)
Has an ownership interest in, or is an officer or director of, any
applicant.
A.
A request for qualifications (RFQ) for each contract subject to these
procedures shall be advertised in a newspaper of general circulation
in the Town, in the Central Register published by the Secretary of
the Commonwealth, and in any other place required by the awarding
authority, at least two weeks before the deadline for filing applications.
B.
The advertisement shall contain the following information:
(1)
A description of the project, including the specific designer services
sought, the time period within which the project is to be completed,
and, if available, the estimated construction cost;
(2)
If there is a program or prior feasibility study for the building
project, a statement of when and where the program or study will be
available for inspection by applicants;
(3)
When and where a briefing session (if any) will be held;
(4)
The qualifications required of applicants;
(5)
The categories of designers' consultants, if any, for which
applicants must list names of consultants they may use;
(6)
Whether the fee has been set or will be negotiated; if the fee has
been set, the amount of the fee must be listed in the advertisement;
(7)
When and where the RFQ can be obtained and the applications must
be delivered.
C.
The RFQ shall include the current Massachusetts Designer Selection
Board "Standard Designer Application Form for Municipalities and Public
Agencies not within DSB Jurisdiction." The application form may be
amended to include additional information on a project-specific basis.
The Committee shall evaluate applicants based on the following
criteria:
A.
The Committee shall select at least three finalists. Finalists may
be required to appear for an interview or provide additional information
to the Committee, provided that all finalists are afforded an equal
opportunity to do so.
B.
The Committee shall rank the finalists in order of qualification
and transmit the list of ranked finalists to the awarding authority.
No person or firm, including applicants' listed consultants,
debarred pursuant to MGL c. 149, § 44C, shall be included
as a finalist on the list.
C.
The list must be accompanied by a written explanation of the reasons
for selection, including the recorded vote of the Committee, if any.
The written explanation and recorded vote, if any, shall be public
records and shall be maintained in the contract file.
A.
If the fee was set prior to the selection process, the awarding authority
shall select a designer from the list of finalists. If the awarding
authority selects a designer other than the one ranked first by the
Committee, the awarding authority shall file a written justification
for the selection with the Committee and maintain a copy in the contract
file.
B.
If the fee is to be negotiated, the awarding authority shall review
the list of finalists and may exclude any designer from the list if
a written explanation of the exclusion is filed with the Committee
and maintained in the contract file. The awarding authority shall
request a fee proposal from the first-ranked designer remaining on
the list and begin contract negotiations. If the awarding authority
is unable to negotiate a satisfactory fee with the first-ranked designer,
negotiations shall be terminated and undertaken with the remaining
designers, one at a time, in the order in which they were ranked by
the Committee until agreement is reached. In no event may a fee be
negotiated which is higher than the maximum fee set by the awarding
authority prior to selection of finalists.
C.
If the awarding authority is unable to negotiate a satisfactory fee
with any of the finalists, the awarding authority shall recommend
that the Committee select additional finalists.
The awarding authority may allow a designer who conducted a
feasibility study to continue with the design of a project, provided
that the awarding authority conducts a solicitation that complies
with the requirements of the Designer Selection Law and these procedures.
The awarding authority may commission, at its discretion, an independent
review of the feasibility study, by a knowledgeable and competent
individual or business doing such work to ensure its reasonableness
and its adequacy before allowing the designer to continue on the project.
A.
Every contract for design services shall include the following:
(1)
Certification that the designer 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;
(2)
Certification that no consultant to, or subcontractor for, the designer
has given, offered, or agreed to give any gift, contribution, or offer
of employment to the designer, 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;
(3)
Certification that no person, corporation, or other entity, other
than a bona fide full-time employee of the designer, has been retained
or hired by the designer to solicit for or in any way assist the designer
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
(4)
Certification that the designer has internal accounting controls
as required by MGL c. 30, § 39R(c), and that the designer
has filed and will continue to file an audited financial statement
as required by MGL c. 30, § 39R(d).
B.
All fees shall be stated in design contracts, and in any subsequent
amendments thereto, as a total dollar amount. Contracts may provide
for equitable adjustments in the event of changes in scope of services.
C.
The awarding authority shall not enter into a contract for design
services unless the awarding authority 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 $1,000,000 or 10% of the project's estimated
cost of construction, or such larger amounts as the awarding authority
may require, for the applicable period of limitations. A designer
required by the awarding authority to obtain all or a portion of such
insurance coverage at its own expense shall furnish a certificate
or certificates of insurance coverage to the awarding authority simultaneously
with the execution of the contract.
D.
Every contract for design services shall include a provision that
the designer or its 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 awarding authority
individual responsible for administering the design contract.
A.
In the event of an emergency that precludes the normal use of these
designer selection procedures, the awarding authority may elect to
authorize expedited procedures to address the emergency. The awarding
authority shall document, in writing, the reasons for the emergency
declaration, the proposed scope of services, the estimated cost of
construction, the established fee for the needed design services,
and any other relevant information.
B.
The awarding authority may select three finalists from any standing
list of designers who have applied for projects of a similar nature
or may otherwise select three designers to be considered as finalists
for the project. The awarding authority shall rank the finalists in
order of qualification and select the designer for the emergency work.
The awarding authority shall publish the name of any designer
awarded a contract in the Central Register.
The awarding authority shall evaluate designers' performance
on contracts using the Designer Selection Board evaluation form(s)
in accordance with MGL c. 7, § 38E(g), and file completed
evaluations with the Board and any other agency named in MGL c. 7,
§ 38E(g).
Nothing in these procedures shall be interpreted to require
the establishment of a local designer selection board or waive or
reduce the requirements of any other applicable law or regulation.
Any design or construction project that is funded, in whole
or in part by the Commonwealth (such as reimbursements, grants and
the like) shall include an affirmative marketing program consistent
with the requirements of the Construction Reform Law, Chapter 193
of the Acts of 2004, and revisions to MGL c. 23A, § 44,
and MGL c. 7, § 40N.