These procedures are to apply to the selection of designers on building construction, renovation, alteration, remodeling, and repair projects undertaken by the City of Everett or any agency, board, commission or school department. These procedures do not apply to the selection of designers for modular buildings or projects of the Everett Housing Authority. See the definition of “building project” if there is a question whether a particular project is a building project subject to these guidelines. Projects that are funded in part by a State agency or by a Federal agency may be subject to additional programmatic requirements established by the funding agency.
(a)
The awarding authority that will award and administer the design contract will determine the nature and extend of the design services required for the project and will develop the project criteria required under Section 2-293 below.
(b)
Design services such as the preparation of programs and feasibility studies, construction management, and construction scheduling may be performed by any person or firm experienced in providing such services. Other design services generally require the participation of registered architects, landscape architects, or engineers. In such cases, if the designer is an individual, he or she must be registered in the appropriate discipline. If the designer is a partnership, a majority of the partners must be so registered. If the designer is a corporation, the chief executive officer (when stock ownership), the person in charge of the project, and either a majority of directors or a majority of the ownership interest must all be registered.
(c)
The awarding authority will decide whether to set a fee for the proposed design service, which will be binding on the applicants, or whether to negotiate the fee. If the fee is to be negotiated, the awarding authority must establish a “not to exceed” limit before the applications are received and evaluated.
(d)
Contracts for energy management services that may include improvements to a building are not subject to the designer selection law and may be procured using a request for proposals process in accordance with the provisions of M. G. L. c 25A & 11C. Information on energy management services contracting may be obtained from the State’s Division of Energy Resources.
(a)
A request for proposals (RFP) for each contract for designer services shall be published in the Central Register, established under M. G. L. c. 7, Section 38D at least two weeks before the deadline for filing applications. In addition design services for projects whose estimated construction cost exceeds $10,000 (or as might further be amended by the City Council) must also be publicly advertised in the local newspaper once a week for at least two consecutive weeks, the last publication to be at least one week before the time specified for the opening of said proposals. The RFP will provide the following detailed information:
(1)
A description of the project, the specific designer services sought, the estimated construction cost, and the time allotted for completion, if known. Requirements of the designer to attend local meetings or to be present at the construction site should also be included.
(2)
When and where the program prepared for the project will be available for inspection by applicants, or a statement that there is no program beyond the information in (1) above.
(3)
The qualifications required of applicants for the project (State law requires a registered architect for the preparation of plans and specifications involving any building whose size exceeds 35,000 cubic feet’).
(4)
The categories of designers’ consultants, if any of which applicants must list consultants they intend to use.
(5)
Whether the fee has been set or will be negotiated. If the fee has been set, its amount must be stated in the RFP as a total dollar amount, not a percentage. If the fee is to be negotiated, the awarding authority shall establish a not to exceed amount prior to negotiations, but need not publish it in the RFP’s.
(6)
The deadline for submission of proposals.
(7)
The person and address to which proposals should be sent.
(8)
A statement that the City shall reserve the right to reject any or all of such proposals.
(9)
Any other pertinent information.
(a)
If fewer than three (3) applications are received, the Designer Selection Committee assigned by the Mayor for any particular project can decide to re advertise. If again, fewer than three (3) responses are received, the responding firm or firms will be evaluated.
(1)
No proposals shall be accepted from or for any person who has broken a contract with the City during the three (3) years preceding.
The selection of finalists will be based on the following criteria:
(a)
Minimum Evaluation Criteria:
(1)
The Consultant/Firm must have and provide evidence of the following minimum qualifications and experience or other information requested in “Proposal Requirements” section of the RFP in the order to be eligible for consideration as a finalist:
(b)
Comparative Evaluation Criteria:
Each Selection Committee member will independently evaluate the proposals based on the following criteria:
(1)
Professional Competence of Consultant Firm and Experience in Performing Similar Work.
a.
Consideration will be given to the Consultant/Firm who demonstrates the technical capability of personnel in the required disciplines; ability to interface with City Staff and with the public in particular, property owners impacted by the projects(s); good writing and reporting skills; experience in similar types of work activities and products.
(c)
(d)
The DSC will select at least three finalists from among all applicants and transmit the list to the awarding authority.
(1)
The list will rank the finalists in order of qualification, provide a record of the final vote of the DSC on the selection, and include a written statement explaining the committee’s reasons for its choice and its ranking of the finalists.
(2)
The list will be a public record. No person or firm debarred pursuant to Chapter 149, section 44C or disqualified pursuant to Chapter 7, section 38F(c) or 38H(g) shall be so included as a finalist.
(3)
The DSC shall transmit to the awarding authority all material made or received relating to such recommendation.
If the fee for design services has been set by the awarding authority prior to the selection process, the awarding authority will select the designer to be awarded the contract from the list submitted by the DSC. If a designer other than the one ranked first is selected, the awarding authority shall file a written justification with the DSC.
(a)
If the fee is to be negotiated, the awarding authority shall review the list transmitted by the DSC, and may exclude any designer from the list with a written explanation of the exclusion.
(b)
The awarding authority shall then appoint a designer based on successful fee negotiation among the remaining finalists in order of rank.
(1)
In no event may a fee be negotiated which is higher than a maximum fee set by the awarding authority prior to selection of finalists.
(2)
Should the awarding authority be unable to negotiate a satisfactory fee with any designer initially selected as a finalist by the DSC, the DSC shall recommend additional finalists in accordance with the statutes.
(a)
All contracts made by any department, board or commission where the amount involved is $5,000.00 dollars or more (or as might further be amended by City Council) shall be in writing.
(b)
The design contract shall state the fee as a total dollar amount. In no case may the designer’s fee be determined as a percentage of construction cost.
(c)
No officer or board shall make any contract on behalf of the City, the execution of which will necessarily extend beyond three (3) years from the date thereof unless special permission to do has been given by vote of the City Council or by the statues of the Commonwealth.
(d)
Officials and employees are prohibited from making or sharing in municipal contracts.
(e)
The name of the designer awarded the contract must be published in the Central Register.
(f)
The awarding authority may request a copy of the Division of Capital Asset Management (DCAM) or American Institute of Architects’ standard design contracts to use as guidance. Every contract awarded for design services shall include:
(1)
Certification that the designer or construction manager has not given, offered, or agreed to give any gift, contribution or offer of employment as an inducement for, or in connection with, the award of a contract for design services.
(2)
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.
(3)
Certification that no person, corporation or other entity, other than bona fide full time employee of the designer or construction manager, has been retained or hired 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 contract to the designer.
(4)
Certification with respect to contracts which exceed ten thousand dollars or that 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 Chapter 30, section 39R, and that the designer will:
a.
Maintain accurate and detailed accounts for a six year period after the final payment.
b.
File regular statements of management concerning internal auditing controls.
c.
File an annual audited financial statement, and
d.
Submit a Statement from an independent certified public accountant that such CPA (or certified public accountant) has examined management’s internal auditing controls and expresses an opinion as to their consistency with management’s statements in (b) above and whether such statements are reasonable with respect to transactions and assets that are substantial in relation to designer’s financial statements, Chapter 7, section 38H(e).
(5)
A requirement that the designer at his/her own expense obtain and maintain a professional liability insurance policy 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 such contracts for design services.
a.
The awarding authority may require a consultant employed by a designer subject to this subparagraph to obtain and maintain a similar liability insurance policy.
b.
The total amount of such insurance shall at a minimum equal the lesser of one million dollars or ten percent of the project’s estimated cost of construction, or such larger amounts as the public agency may require, and shall cover the applicable period of limitations.
c.
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.
d.
For the purpose of this paragraph only, “public agency” shall have the meaning set forth in section thirty nine A.
e.
Liability insurance is not required for the preparation of studies, surveys, soil testing, cost estimates, programs or for construction management or scheduling.
(6)
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 reasonably anticipated by the designer in the preparation of the bid documents, is reasonably determined by the executive head of the public agency responsible for administering the design contract.
a.
The contract shall specify who will bear the cost of redesigns if the plans are unsatisfactory or if the construction bids exceed the estimated cost or the, available appropriation. (G. L. C.7, s 38H(j)).
b.
For the purpose of this paragraph, “public agency” shall have the meaning as set forth in section thirty nine A.
(7)
Any person contracting with a municipality must certify in writing that he or she has complied with State tax laws. (G. L. c. 62C, s49A).
(8)
Contracts for design services may include a requirement that the designer be responsible for overseeing the construction phase of the project.
(9)
The contract shall specifically list the names and time commitments of the key personnel included in the designer’s proposal.
(10)
The contract shall require that the designer satisfy State law certifications and requirements relating to non collusion in the submission of proposals and financial reports that the designer must file. (G. L. C.7 s38H(e))
(11)
The contract shall have a provision giving ownership of any completed or partially completed design documents to the awarding authority even if the contract is terminated.
When an emergency situation exists, the City of Everett may utilize “Regulation 811 C2MR 3.00 Expedited Procedure for Selection of Designers When an Emergency Situation Exists”, as adapted to local requirements including the substitution of the terms “Designer Selection Board” and “Deputy Commissioner of “DCAM” with “Designer Selection Committee” and “Local Awarding Authority” respectively.
(Ord. of 06-25-2001)
(a)
When the RFP has required that the applicants list consultants which they intend to use, any changes in, addition to, consultants named in the application must be approved by the awarding authority and reported to the DSC with a written statement by the designer or construction manager of the reasons for the change.
(b)
A designer or programmer appointed to do a feasibility study, master plan or program for a project shall be ineligible for appointment to perform the design services for that project. This paragraph shall not apply to designers performing studies for repair work provided, first, that such work is limited to identifying and correcting existing deficiencies in a portion of a building or its equipment and second, that the designer’s fee for the combined study and design of repairs is not greater than twenty five thousand dollars.
(c)
The awarding authority may allow a designer who conducted a feasibility study to continue with the design of a project, if the authority commissions an independent review, by a knowledgeable and competent individual or business doing such work, of the feasibility designer’s work to insure its reasonableness and its adequacy prior to allowing the designer to continue on said project. The review of a State agency with oversight or approval of a project may be sufficient for purposes of this paragraph.
(d)
The cost of an independent review should first be estimated by consulting with knowledgeable staff or soliciting estimates from at least three potential reviewers. to consider using the independent review option, it must be stated in the initial advertisement for design services that the feasibility designer may, subject to an independent review, go on to per form the final design. Separate fees for the feasibility phase and the final design phase must be set.
(e)
In the selection of applicants to perform design services, the following records will be kept by the awarding authority:
(1)
Copies of public notices, evaluations, rankings, and reasons for rankings;
(2)
All information supplied by or obtained about each applicant;
(3)
All actions taken by the DSC relating to any project and recorded votes of the DSC; and
(4)
All actions taken by the awarding authority relating to any project.
These records will be available for inspection by the State Designer Selection Board and other authorized agencies. |
(f)
All meetings of a government body shall be open to the public and any person shall be permitted to attend any meeting as otherwise provided by G. L. 30H, section 11A1/2/.
(g)
No member of the DSC shall participate in the selection of a designer for any project if the member of his or her 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 ownership interest in, or is an officer or director of, any applicant.
(h)
Using full time municipal employees to perform design services which fall within the scope of their normal duties is perfectly legal and appropriate, provided the employees are qualified. The review and evaluation of employee qualifications for a particular project should be completed using the same criteria as would be applied to outside firms. This review and evaluation shall be conducted by the person or persons so designated by the awarding authority. Where the employee is found to be qualified, an open competition need not be conducted.
(i)
These procedures have been adopted to satisfy the purpose and intent of M.G.L. Chapter 7, section 38 A to 38 0. Where interpretive questions or ambiguities arise, refer to the recommendations “Designing and Constructing Municipal Facilities, Legal Requirements, Recommended Practices, Sources of Assistance”, dated October 1989, issued by the Office of the Inspector General and Massachusetts General Laws c. 7 s38K with additional requirements set forth in s 38A1/2 through s38N. The Attorney General is the chief law officer and his opinion takes precedence over previous interpretations by State agencies.