The Commonwealth of Massachusetts
Session Laws
CHAPTER 687 AN ACT PROVIDING FOR EFFECTIVE AND EFFICIENT UNIFORM PROCUREMENT PROCEDURES FOR CITIES, TOWNS, DISTRICTS AND COUNTIES.
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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. Section 38K of chapter 7 of the General Laws, as appearing in the 1988 Official Edition, is hereby amended by striking out, in line 3, the word "ten" and inserting in place thereof the following words:- one hundred.
SECTION 2. Paragraph (d) of section 39M of chapter 30 of the General Laws, as appearing in the 1988 Official Edition, is hereby amended by striking out clause (4) and inserting in place thereof the following clause:-
(4) to any contract of not more than twenty-five thousand dollars awarded by a governmental body, as defined by section two of chapter thirty B, in accordance with the provisions of section five of said chapter thirty B.
SECTION 3. The General Laws are hereby amended by inserting after chapter 30A the following chapter:-
`tuc CHAPTER 30B. UNIFORM PROCUREMENT ACT.
Section 1. (a) This chapter shall apply to every contract for the procurement of supplies, services or real property and for disposing of supplies or real property by a governmental body as defined herein.
(b) This chapter shall not apply to:
(1) a contract subject to the provisions of section thirty-nine M of chapter thirty or sections forty-four A to forty-four J, inclusive, of chapter one hundred and forty-nine;
(2) a contract subject to the provisions of sections thirty-eight A 1/2 to thirty-eight O, inclusive, of chapter seven;
(3) an intergovernmental agreement subject to the provisions of section four A of chapter forty;
(4) a transaction with the commonwealth;
(5) a contract for the purchase of materials, under specifications of the state department of public works, and at prices established by the department, pursuant to advertising and bidding for such purpose, in connection with work to be performed under the provisions of chapter eighty-one or chapter ninety;
(6) a contract for the advertising of required notices;
(7) an agreement between agencies, boards, commissions, authorities, departments or public instrumentalities of one city or town;
(8) an agreement for the provision of special education pursuant to chapter seventy-one B and regulations promulgated pursuant thereto;
(9) a contract to purchase supplies or services from any agency or instrumentality of the federal government, the commonwealth, or any of its political subdivisions;
(10) the issuance of bonds, notes or securities in accordance with procedures established by law;
(11) contracts and investments made in accordance with sections fifty-seven or fifty-seven A of chapter thirty-five or sections sixty-seven or sixty-seven A of chapter forty-four;
(12) an agreement subject to the provisions of sections one to sixteen, inclusive, of chapter forty M or the provisions of sections twenty-five E to twenty-five U, inclusive, of chapter one hundred and fifty-two;
(13) contracts for the services of expert witnesses for use in an adjudicatory proceeding or litigation or in anticipation thereof, labor relations representatives, physicians, dentists, lawyers, designers, or certified public accountants; or
(14) any contracts or agreements entered into by a municipal gas or electric department governed by a municipal light board, as defined by section fifty-five of chapter one hundred and sixty-four or by a municipal light commission, as defined by section fifty-six A of said chapter one hundred and sixty-four; provided, however, that any such board or commission may accept the provisions of this chapter by a majority vote of its members.
(c) This chapter shall be deemed to have been complied with on all purchases made under the provisions of sections twenty-two A and twenty-two B of chapter seven when one political subdivision, as defined in said section twenty-two A, acting on behalf of other political subdivisions, complies with the provisions of this chapter, or when purchases are made from a vendor pursuant to a contract with the commonwealth for the item or items being purchased.
(d) Where a procurement involves the expenditure of federal assistance or contract funds, the provisions of this chapter shall not apply to the extent that such provisions prevent compliance with mandatory provisions of federal law and regulations.
Section 2. As used in this chapter the following words shall, unless the context requires otherwise, have the following meanings:-
"Bid", a written offer to provide a supply or service at a stated price submitted in response to an invitation for bids.
"Chief procurement officer", the purchasing agent appointed pursuant to section one hundred and three of chapter forty-one, or as to any city or town which has not accepted said section, an individual duly appointed in a city having a city manager, by the city manager, in a town having a town manager, by the town manager, in any other town, by the selectmen, or, in any city or town otherwise providing by charter or local by-law for the appointment of a chief procurement officer, in accordance with such charter or local by-law, to procure all supplies and services for the city or town and every governmental body thereof; an individual duly appointed in a district by the prudential committee, if any, otherwise the commissioners to procure all supplies and services for the district; an individual duly appointed in a regional school district by the regional school district committee to procure all supplies and services for the regional school district; an individual duly appointed in a county having a county executive, by the county executive, or in any other county, by the commission, to procure all supplies and services for the county and every governmental body thereof.
"Contract", all types of agreement for the procurement or disposal of supplies or services, regardless of what the parties may call the agreement.
"Contractor", a person having a contract with the governmental body.
"Designer", a person performing any of the following services, in connection with the construction, reconstruction, alteration, repair, development, installation, maintenance, or demolition of any building, road, bridge, or other physical property, unless such services are performed under a contract subject to the provisions of sections thirty-eight A 1/2 to thirty-eight O, inclusive, of chapter seven; preparation of master plans, studies, surveys, soil tests, cost estimates or programs; preparation of drawings, plans, or specifications; supervision or administration of a construction contract; or construction management or scheduling.
"Employment agreement", any agreement between a governmental body and an individual pursuant to which (1) the governmental body withholds or is required to withhold taxes on the individual's wages pursuant to the Internal Revenue Code or chapter sixty-two B; or (2) the governmental body and the individual stand under common law rules in the legal relationship of employer and employee.
"Governmental body", a city, town, district, regional school district, county, or agency, board, commission, authority, department or instrumentality of a city, town, district, regional school district or county.
"Grant agreement", an agreement between a governmental body and an individual or nonprofit entity the purpose of which is to carry out a public purpose of support or stimulation instead of procuring supplies or services for the benefit or use of the governmental body.
"Invitation for bids", the documents utilized for the soliciting of bids, including documents attached or incorporated by reference.
"Labor relations representative", a person designated to represent a public employer and act in its interest in dealing with public employees pursuant to chapter one hundred and fifty E.
"Majority vote", as to any action by or on behalf of a county or instrumentality of the county, a simple majority of the commission; a city, town, or district, a majority vote as defined in section one of chapter forty-four; a regional school district, an affirmative vote by two-thirds of the members of the regional district school committee; or a housing authority, a simple majority of its members.
"Minor informalities", minor deviations, insignificant mistakes, and matters of form rather than substance of the bid, proposal, or contract document which can be waived or corrected without prejudice to other offerors, potential offerors, or the governmental body.
"Person", any natural person, business, partnership, corporation, union, committee, club, or other organization, entity or group of individuals.
"Procurement", buying, purchasing, renting, leasing, or otherwise acquiring a supply or service, and all functions that pertain to the obtaining of a supply or service, including description of requirements, selection and solicitation of sources, preparation and award of contract, and all phases of contract administration.
"Procurement officer", an individual duly authorized pursuant to law, charter, or local by-law to procure a supply or service for a governmental body or to dispose of a supply, including an individual duly delegated to take any action in connection with a procurement, and further including any member of a board, committee, commission, or other body who participates in a procurement.
"Proposal", a written offer to provide a supply or service at a stated price submitted in response to a request for proposals.
"Purchase description", the words used in a solicitation to describe the supplies or services to be purchased, including specifications attached to or incorporated by reference into the solicitation.
"Request for proposals", the documents utilized for soliciting proposals, including documents attached or incorporated by reference.
"Responsible bidder or offeror", a person who has the capability to perform fully the contract requirements, and the integrity and reliability which assures good faith performance.
"Responsive bidder or offeror", a person who has submitted a bid or proposal which conforms in all respects to the invitation for bids or request for proposals.
"Services", the furnishing of labor, time, or effort by a contractor, not involving the furnishing of a specific end product other than reports. This term shall not include employment agreements, collective bargaining agreements, or grant agreements.
"Supplies", all property, other than real property, including equipment, materials, printing, and insurance and further including services incidental to the delivery, conveyance and installation of such property.
Section 3. A procurement officer who awards a contract in the amount of five thousand dollars or more shall maintain a file on each such contract and shall include in such file a copy of all written documents required by this chapter. Written documents required by this chapter shall be retained by the governmental body for at least six years from the date of final payment under the contract. Except as provided by paragraph (d) of section six, the records shall be open to public inspection.
Section 4. (a) Except as permitted pursuant to section seven, for the procurement of a supply or service in the amount of one thousand dollars or greater, but less than ten thousand dollars, a procurement officer shall seek written or oral quotations from no fewer than three persons customarily providing such supply or service. The procurement officer shall record the names and addresses of all persons from whom quotations were sought, the names of the persons submitting quotations and the date and amount of each quotation. A governmental body may require that procurements in amounts of less than ten thousand dollars be based on written quotations or be subject to the provisions of section five.
(b) The procurement officer shall award the contract to the responsible person offering the needed quality of supply or service at the lowest quotation.
(c) A procurement in the amount of less than one thousand dollars shall be obtained through the exercise of sound business practices.
Section 5. (a) Except as permitted under section six or section eight, award of procurement contracts in the amount of ten thousand dollars or more, other than contracts for the procurement of real property, shall conform to the competitive sealed bidding procedures set forth in this section.
(b) A procurement officer shall issue an invitation for bids for a procurement contract. The invitation for bids shall include:
(1) the time and date for receipt of bids, the address of the office to which bids are to be delivered, the maximum time for bid acceptance by the governmental body;
(2) the purchase description and all evaluation criteria to be utilized pursuant to paragraph (e); and
(3) all contractual terms and conditions applicable to the procurement.
The invitation for bids may incorporate documents by reference; provided, however, that the invitation for bids specifies where prospective bidders may obtain the documents. The procurement officer shall make copies of the invitation for bids available to all persons on an equal basis.
(c) The procurement officer shall give public notice of the invitation for bids a reasonable time prior to the date for the opening of bids. The notice shall:
(1) indicate where, when and for how long invitations for bids may be obtained;
(2) describe the supply or service desired, and reserve the right of the governmental body to reject any or all bids;
(3) if award of the contract is subject to the approval of any board, committee, commission or other body, so state and identify each such body;
(4) remain posted, for at least two weeks, in a conspicuous place in or near the offices of the governmental body until the time specified in the invitation for bids; and
(5) be published at least once, not less than two weeks prior to the time specified for the receipt of bids, in a newspaper of general circulation within the area served by the governmental body.
For procurements in the amount of twenty-five thousand dollars or more, or such larger amount as may be established by the state secretary, the procurement officer shall also place the notice in any publication established by the state secretary for the advertisement of such procurements.
The procurement officer may distribute copies of the notice to prospective bidders, and may compile and maintain lists of prospective bidders to which notices may be sent.
A city or town which regularly publishes a periodical listing municipal contracting opportunities may apply to the state secretary for permission to utilize such periodical in lieu of advertising in a newspaper of general circulation. The state secretary, after notice and an opportunity for interested persons to present their views, may grant, renew, or revoke permission for said city or town to utilize such periodical in lieu of newspaper advertising for procurements or classes of procurements not to exceed such amount as may be established by the state secretary. Such permission shall remain in effect for a specified period not to exceed three years. In granting, renewing, or revoking such permission, the state secretary shall consider whether the periodical provides prospective contractors with reasonable notice of contracting opportunities, taking account of such factors as circulation, accessibility, reliability, and cost of the periodical. Such permission and any renewal or revocation thereof shall be in writing filed with the city or town clerk, the inspector general, and the state secretary.
(d) The procurement officer shall open bids publicly either (1) at a meeting subject to the provisions of section eleven A 1/2 of chapter thirty A, in the presence of a quorum, and the names of all bidders and the amounts of their bids shall be entered in the minutes, or (2) in the presence of one or more witnesses, and the procurement officer and said witnesses shall sign a statement under penalties of perjury listing the names of all bidders and the amounts of their bids and declaring that said list is a complete and accurate list of bids opened in the presence of said witnesses. Such minutes or statement, or a certified copy thereof, shall be filed with the contract.
(e) The procurement officer shall evaluate a bid based solely on the requirements and criteria set forth in the invitation for bids. Such criteria shall include the standards by which the procurement officer will determine acceptability as to quality, workmanship, results of inspections and tests, and suitability for a particular purpose.
(f) The procurement officer shall unconditionally accept a bid without alteration or correction, except as provided in this paragraph. A bidder may correct, modify, or withdraw a bid by written notice received in the office designated in the invitation for bids prior to the time and date set for the bid opening. After bid opening, a bidder may not change the price or any other provision of the bid in a manner prejudicial to the interests of the governmental body or fair competition. The procurement officer shall waive minor informalities or allow the bidder to correct them. If a mistake and the intended bid are clearly evident on the face of the bid document, the procurement officer shall correct the mistake to reflect the intended correct bid and so notify the bidder in writing, and the bidder may not withdraw the bid. A bidder may withdraw a bid if a mistake is clearly evident on the face of the bid document but the intended correct bid is not similarly evident.
(g) The procurement officer shall award the contract to the lowest responsible and responsive bidder. A contract requiring payment to the governmental body of a net monetary amount shall be awarded to the highest responsible and responsive bidder. The procurement officer shall award the contract by written notice to the selected bidder within the time for acceptance specified in the invitation for bids. The parties may extend the time for acceptance by mutual agreement.
Section 6. (a) A chief procurement officer may enter into procurement contracts in the amount of ten thousand dollars or more utilizing competitive sealed proposals, in accordance with the provisions of this section. The chief procurement officer shall not solicit competitive sealed proposals unless he has determined in writing that selection of the most advantageous offer requires comparative judgments of factors in addition to price, specifying the reasons for his determination.
(b) The chief procurement officer shall solicit proposals through a request for proposals. The request for proposals shall include:
(1) the time and date for receipt of proposals, the address of the office to which the proposals are to be delivered, the maximum time for proposal acceptance by the governmental body;
(2) the purchase description and all evaluation criteria that will be utilized pursuant to paragraph (e); and
(3) all contractual terms and conditions applicable to the procurement provided that the contract may incorporate by reference a plan submitted by the selected offeror for providing the required supplies or services.
The request for proposals may incorporate documents by reference; provided, however, that the request for proposals specifies where prospective offerors may obtain the 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 chief procurement officer shall make copies of the request for proposals available to all persons on an equal basis.
(c) Public notice of the request for proposals shall conform to the procedures set forth in paragraph (c) of section five.
(d) The chief procurement officer 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 evaluations, 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 chief procurement officer shall prepare a register of proposals which shall include the name of each offeror and the number of modifications, if any, received. The register of proposals shall be open for public inspection. The chief procurement officer 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.
(e) The chief procurement officer 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 performance 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 the rating;
(2) a composite rating for each proposal, and the reasons for the rating; and
(3) revisions, if any, to each proposed plan for providing the required supplies or services which should be obtained by negotiation prior to awarding the contract to the offeror of the proposal.
(f) A proposal may be corrected, modified or withdrawn to the extent provided in paragraph (f) of section five.
(g) The chief procurement officer shall determine the most advantageous proposal from a responsible and responsive offeror taking into consideration price and the evaluation criteria set forth in the request for proposals. The chief procurement officer 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. The chief procurement officer may condition an award on successful negotiation of the revisions specified in the evaluation, and shall explain in writing the reasons for omitting any such revision from a plan incorporated by reference in the contract.
(h) If the chief procurement officer awards the contract to an offeror who did not submit the lowest price, the chief procurement officer shall explain the reasons for the award in writing, specifying in reasonable detail the basis for determining that the quality of supplies or services under the contract will not exceed the governmental body's actual needs.
(i) If a contract requiring payment to the governmental body of a net monetary sum is awarded to an offeror who did not submit the highest price, the chief procurement officer shall explain the reasons for the award in writing as set forth in paragraph (h).
Section 7. (a) A procurement officer may award a contract in an amount of less than ten thousand dollars or any contract for the procurement of library books or school textbooks without competition when, after reasonable investigation, the procurement officer determines in writing that only one practicable source for the required supply or service exists. The procurement officer shall procure a proprietary item by competition if more than one potential bidder or offeror for that item exists.
(b) The procurement officer shall record all sole source procurements, specifying each contractor's name, the amount and type of each contract, a listing of supplies or services procured under each contract, and the basis of the determination that the contractor was the only practicable source for the required supply or service.
(c) A procurement officer may procure without competition water, gas, electricity, sewer or telephone services from a public utility company as defined in section three of chapter twenty-five if the procurement officer certifies in writing that only one practicable source exists.
Section 8. Whenever the time required to comply with a requirement of this chapter would endanger the health or safety of the people or their property a procurement officer may make an emergency procurement without following that requirement. An emergency procurement shall be limited to only supplies or services necessary to meet the emergency and shall conform to the requirements of this chapter to the extent practicable under the circumstances. The procurement officer shall make a record of each emergency as soon after the procurement as practicable, specifying each contractor's name, the amount and the type of each contract, a listing of the supply or service provided under each contract, and the basis for determining the need for an emergency procurement.
The procurement officer shall submit a copy of this record at the earliest possible time to the state secretary for placement in any publication established by the state secretary for the advertisement of procurements.
Section 9. The procurement officer may cancel an invitation for bids, a request for proposals, or other solicitation, or may reject in whole or in part any and all bids or proposals when the procurement officer determines that cancellation or rejection serves the best interests of the governmental body. The procurement officer shall state in writing the reason for a cancellation or rejection.
Section 10. A person submitting a bid or a proposal for the procurement or disposal of supplies or services to any governmental body shall certify in writing, on the bid or proposal, as follows:
The undersigned certifies under penalties of perjury that this bid or proposal has been made and submitted in good faith and without collusion or fraud with any other person. As used in this certification, the word "person" shall mean any natural person, business, partnership, corporation, union, committee, club, or other organization, entity, or group of individuals. `ts
Section 11. No person shall cause or conspire to cause the splitting or division of any procurement, specification, invitation for bids, request for proposals, proposal, solicitation, or quotation for the purpose of evading a requirement of this chapter.
Section 12. (a) Unless otherwise provided by law and subject to paragraph (b), a governmental body may enter into a contract for any period of time which services the best interests of the governmental body; provided, however, that the procurement officer shall include in the solicitation the term of the contract and conditions of renewal, extension or purchase, if any. The procurement officer shall not enter into a contract unless funds are available for the first fiscal year at the time of contracting. Payment and performance obligations for succeeding fiscal years shall depend on the availability and appropriation of funds.
(b) Unless authorized by majority vote, a procurement officer shall not solicit or award a contract for a term exceeding three years, including any renewal, extension, or option. Such authorization may apply to a single contract or to any number or types of contracts, and may specify a uniform limit or different limits on the duration of any such contracts.
(c) The invitation for bids, request for proposals, or other solicitation of any contract for a term exceeding one year, including a renewal, extension or option, shall state, in addition to the other information required by this chapter:
(1) the amount of supplies or services required for the proposed contract period, and whether such amount is the actual amount required or an estimate;
(2) that the bidder or offeror shall give a unit price for each supply or service, and that the unit price shall remain the same throughout the contract, except to the extent that the solicitation and resulting contract provides for price adjustments;
(3) that the procurement officer shall cancel the contract if funds are not appropriated or otherwise made available to support continuation of performance in any fiscal year succeeding the first year;
(4) whether the bidder or offeror shall submit prices for:
(i) the first fiscal year only;
(ii) the entire time of performance only; or
(iii) both the first fiscal year and the entire time of performance; and
(5) how the award will be determined, including, if the contractor submits prices for the first fiscal year and the entire time of performance, how the prices will be compared.
When a contract is to contain an option for renewal, extension, or purchase, the solicitation shall include notice of the provision. The governmental body shall retain sole discretion in exercising the option, and no exercise of an option shall be subject to agreement or acceptance by the contractor.
(d) When funds are not appropriated or otherwise made available to support continuation of performance in a subsequent fiscal year, the procurement officer shall cancel the contract.
(e) The governmental body shall not exercise an option for renewal, extension or purchase unless the procurement officer, after reasonable investigation of costs and benefits, has determined in writing that the exercise of the option is more advantageous than alternate means of procuring comparable supplies or services.
(f) Notwithstanding the provisions of paragraphs (a), (b), clause (3) of paragraph (c) and paragraph (d) and further notwithstanding any contrary provision of any law or the provisions of any charter, a city or town may, in a contract for the disposal of its garbage, refuse, and offal, agree that said city or town shall not be exempt from liability on such contract; provided, however, that such disposal shall be in a sanitary manner approved by the department of environmental quality engineering, also known as the department of environmental protection; provided further, that the contract, including any renewal, extension, or option, shall be for a period not exceeding twenty years; and provided, further, that such contract has been authorized by majority vote, and the terms thereof have been approved as reasonable by the emergency finance board.
Section 13. The governmental body may increase the quantity of supplies or services or both specified in a contract provided:
(1) the unit prices remain the same or less;
(2) the procurement officer has specified in writing that an increase is necessary to fulfill the actual needs of the governmental body and is more economical and practical than awarding another contract;
(3) the parties agree to the increase in writing; and
(4) the increase in quantity, in any contract except a contract for the purchase of gasoline, fuel oil, or road salt, does not exceed ten percent.
Section 14. Unless no other manner of description suffices, and the procurement officer so determines in writing, setting forth the basis for the determination, all specifications shall be written in a manner which describes the requirements to be met without having the effect of exclusively requiring a proprietary supply or service, or a procurement from a sole source.
Section 15. (a) A governmental body shall dispose of a tangible supply, no longer useful to the governmental body but having resale or salvage value, in accordance with this section. This section does not apply to the disposal of real property.
(b) The governmental body shall offer such supply through competitive sealed bids, public auction, or established markets.
(c) Notice of sale by bid or auction shall conform with the procedures set forth in paragraph (c) of section five. The notice shall indicate the supply offered for sale, designate the location and method for inspection of such supply, state the terms and conditions of sale including the place, date and time for the bid opening or auction, and state that the governmental body retains the right to reject any and all bids.
(d) If the governmental body rejects the bid of the highest responsive bidder, the governmental body may:
(1) negotiate a sale of such supply so long as the negotiated sale price is higher than the bid price; or
(2) resolicit bids.
(e) A procurement officer may trade-in a supply listed for trade-in in the invitation for bids or request for proposals.
(f) For a supply with an estimated net value of less than five hundred dollars, the procurement officer shall dispose of such supply using written procedures approved by the governmental body.
(g) Notwithstanding any other requirement of this section, a governmental body may by majority vote, unless otherwise prohibited by law, dispose of a tangible supply no longer useful to the governmental body but having resale or salvage value, at less than the fair market value to a charitable organization which has received a tax exemption from the United States by reason of its charitable nature.
Section 16. (a) If a governmental body duly authorized by general or special law to engage in such transaction determines that it shall rent, convey, or otherwise dispose of real property, the governmental body shall declare the property available for disposition and shall specify the restrictions, if any, that it will place on the subsequent use of the property.
(b) The governmental body shall determine the value of the property through procedures customarily accepted by the appraising profession as valid.
(c) A governmental body shall solicit proposals prior to:
(1) acquiring by purchase or rental real property or an interest therein from any person at a cost exceeding five hundred dollars; or
(2) disposing of, by sale or rental to any person, real property or any interest therein, determined in accordance with paragraph (b) to exceed five hundred dollars in value.
(d) The governmental body shall place an advertisement inviting the submission of proposals in a newspaper with a circulation in the locality sufficient to inform the people of the affected locality. The governmental body shall publish the advertisement at least once a week for two consecutive weeks. The last publication shall occur at least eight days preceding the day for opening proposals. The advertisement shall specify the geographical area, terms and requirements of the proposed transaction, and the time and place for the submission of proposals. In the case of the acquisition or disposition of more than twenty-five hundred square feet of real property, the governmental body shall also cause such advertisement to be published, at least thirty days before the opening of proposals, in the central register published by the state secretary pursuant to section twenty A of chapter nine.
(e) The governmental body may shorten or waive the advertising requirement if:
(1) the governmental body determines that an emergency exists and the time required to comply with the requirements would endanger the health or safety of the people or their property; provided, however, that the governmental body shall state the reasons for declaring the emergency in the central register at the earliest opportunity; or
(2) in the case of a proposed acquisition, the governmental body determines in writing that advertising will not benefit the governmental body's interest because of the unique qualities or location of the property needed. The determination shall specify the manner in which the property proposed for acquisition satisfies the unique requirements. The governmental body shall publish the determination and the reasons for the determination, along with the names of the parties having a beneficial interest in the property pursuant to section forty J of chapter seven, the location and size of the property, and the proposed purchase price or rental terms, in the central register not less than thirty days before the governmental body executes a bidding agreement to acquire the property.
(f) Proposals shall be opened publicly at the time and place designated in the advertisement. The governmental body shall submit the name of the person selected as party to a real property transaction, and the amount of the transaction, to the state secretary for publication in the central register.
(g) If the governmental body decides to dispose of property at a price less than the value as determined pursuant to paragraph (b), the governmental body shall publish notice of its decision in the central register, explaining the reasons for its decision and disclosing the difference between such value and the price to be received.
(h) This section shall not apply to the rental of residential property to qualified tenants by a housing authority or a community development authority.
Section 17. (a) All contracts in the amount of five thousand dollars or more shall be in writing, and the governmental body shall make no payment for a supply or service rendered prior to the execution of such contract.
(b) Subject to the provisions of section three A of chapter forty, a contract made in violation of this chapter shall not be valid, and the governmental body shall make no payment under such contract. Minor informalities shall not require invalidation of a contract.
(c) A person who causes or conspires with another to cause a contract to be solicited or awarded in violation of a provision of this chapter shall forfeit and pay to the appropriate governmental body a sum of not more than two thousand dollars for each violation. In addition, the person shall pay double the amount of damages sustained by the governmental body by reason of the violation, together with the costs of any action. If more than one person participates in the violation, the damages and costs may be apportioned among them.
(d) The inspector general shall have authority to institute a civil action to enforce paragraph (c) if authorized by the attorney general.
Section 18. (a) For purposes of this section the following phrases shall have the following meanings:
"Disadvantaged vendor", any business beneficially owned by one or more minority persons in conformity with clauses (1) to (4), inclusive, of the definition of "Minority business" set forth in section forty N of chapter seven, and any business beneficially owned by one or more women as provided in the definition of "Women-owned business" set forth in said section forty N.
"Sheltered market program", a program under which certain contracts are designated by the chief procurement officer for procurement from one or more classes of disadvantaged vendors.
(b) When authorized by majority vote, a chief procurement officer may establish a sheltered market program in conformity with the requirements of this section. Such authorization may apply to a single contract or to any number or types of contracts, shall specify the class or classes of disadvantaged vendors to be included in the sheltered market program, and shall to the extent constitutionally required be based on findings that such program is a remedy for the present effects of past discrimination.
(c) A procurement officer shall not solicit or award a contract pursuant to a sheltered market program until the chief procurement officer, after notice and a public hearing, has approved written procedures for the operation of such program, has filed such procedures with the state office of minority and women business assistance and the secretary of state, and has published such procedures or a summary thereof in a newspaper of general circulation within the area served by the governmental body and in any publication established by the secretary of state for the advertisement of such notices.
Such written procedures shall, at a minimum, include:
(1) procedures for the certification of disadvantaged vendors, which procedures shall require the use of standardized application forms, the submission of applications sworn to under the penalties of perjury, the maintenance of certification records by the chief procurement officer or his designee, an opportunity for a business denied certification to be heard on such denial, the issuance of certificates valid for a period not longer than two years, notice and an opportunity to be heard prior to revocation of certificates, and a public information campaign to encourage certification; provided, however, that a governmental body's certification procedures may authorize participation in its sheltered market program by any eligible disadvantaged vendor duly certified under the sheltered market program of another governmental body or by the state office of minority and women business assistance;
(2) in the event the authorization required by paragraph (b) does not designate the specific contracts to which the sheltered market program applies, procedures for designating such contracts, which procedures shall (i) set forth criteria for designating contracts, (ii) require that each designation be in writing and based on written findings that the contract meets such criteria, and (iii) provide for an administrative review of the appropriateness of including the contract in the sheltered market program;
(3) procedures for ensuring effective competition among disadvantaged vendors for contracts within the sheltered market program, including procedures requiring (i) supplemental advertising in media serving disadvantaged communities, (ii) for the procurement of a supply or service in the amount of one thousand dollars but less than ten thousand dollars, the receipt of written or oral quotations from no fewer than three certified disadvantaged vendors customarily providing such supply or service; provided, however, that a quotation shall not be considered until the vendor has submitted to the procurement officer a copy of a valid certificate, and (iii) for the procurement of a supply or service in the amount of ten thousand dollars or more, the receipt of responsive bids or proposals from no fewer than three certified disadvantaged vendors; provided, however, that a bid or proposal shall not be considered unless accompanied by a copy of a valid certificate; and
(4) procedures for review and assessment of the sheltered market program, at least annually, based upon a detailed written report by the chief procurement officer or his designee, which report shall at a minimum set forth for the twelve months then ending (i) the number and dollar value of contracts awarded to disadvantaged vendors under the sheltered market program, (ii) the total number, the percentage, the total dollar value, and the percentage dollar value of contracts awarded by the governmental body to disadvantaged vendors eligible for participation in the sheltered market program, (iii) a description of other efforts undertaken by the governmental body to increase its contracting with disadvantaged vendors, and (iv) recommendations for continuing, modifying, or terminating the program.
A violation of any valid procedure adopted pursuant to this section shall constitute a violation of this chapter.
(d) Advertisements for a contract within the sheltered market program shall state that the contract will be awarded under a sheltered market program and shall specify the class or classes of disadvantaged vendors to which competition for the contract is limited.
(e) In no event shall a contract designated for inclusion in a sheltered market program be awarded on a sole source basis. If fewer than three responsive bids, proposals, or quotations are received, or if all bids, proposals, or quotations are rejected pursuant to section nine, the contract shall not be awarded under the sheltered market program.
(f) No contract shall be awarded under a sheltered market program for a term exceeding three years, including any renewal, extension, or option. No disadvantaged vendor shall be awarded a sheltered market program contract if at the time of award such vendor is a party to any other sheltered market program contract the term of which, including any renewal, extension, or option, has not expired. No disadvantaged vendor shall be awarded more than three sheltered market program contracts by one or more governmental bodies within any one-year period.
(g) Except as otherwise provided in this section, all procurements under a sheltered market program shall be undertaken in accordance with the provisions of this chapter.
Section 19. Subject to the provisions of section one hundred and three of chapter forty-one, to the extent permitted by charter or local by-law in a city or town, or by written rules of the committee, commission or executive appointing the chief procurement officer in a district or county, a chief procurement officer may delegate his powers and duties in accordance with this section to one or more employees of the governmental body. A delegation shall be in writing, be signed by the chief procurement officer, and state the activity or function authorized and the duration of the delegation. A delegation may be in specific or general terms, may be limited to a particular procurement or class of procurements, and may be conditioned upon compliance with specified procedures. A delegation may be revoked or amended whenever the chief procurement officer determines that revocation or amendment is in the best interests of the governmental body. A delegation of powers or duties by a chief procurement officer and any revocation or amendment thereof shall not take effect until a copy of the same has been filed with the office of the inspector general.
SECTION 4. Section seventeen of chapter thirty-four of the General Laws is hereby repealed.
SECTION 5. Section 37A of chapter 35 of the General Laws, as appearing in the 1988 Official Edition, is hereby amended by striking out, in lines 17 and 18, the words "section seventeen of chapter thirty-four" and inserting in place thereof the words:- chapter thirty B.
SECTION 6. Section 44 of said chapter 35, as so appearing, is hereby amended by striking out, in lines 6 to 8, inclusive, the words "in case of all payments in excess of one thousand dollars section seventeen of chapter thirty-four" and inserting in place thereof the words:- chapter thirty B.
SECTION 7. Chapter 40 of the General Laws is hereby amended by striking out section 4, as so appearing, and inserting in place thereof the following section:-
Section 4. A city or town may make contracts for the exercise of its corporate powers, on such terms and conditions as are authorized by the town meeting in a town, the town council in a town without a town meeting, the city council in a city with the approval of the mayor or the city council in a Plan D or Plan E city with the approval of the manager, or as otherwise authorized in accordance with a duly adopted charter. A city or town may not contract for any purpose, on any terms, or under any conditions inconsistent with any applicable provision of any general or special law.
SECTION 8. Section four B of said chapter forty is hereby repealed.
SECTION 9. Section four B 1/2 of said chapter forty is hereby repealed.
SECTION 10. Section four G of said chapter forty is hereby repealed.
SECTION 11. Section four H of said chapter forty is hereby repealed.
SECTION 12. Said chapter 40 is hereby further amended by striking out section 5, as amended by chapter 113 of the acts of 1989, and inserting in place thereof the following section:-
Section 5. A town may at any town meeting appropriate money for the exercise of any of its corporate powers; provided, however, that a town shall not appropriate or expend money for any purpose, on any terms, or under any conditions inconsistent with any applicable provision of any general or special law.
SECTION 13. Said chapter 40 is hereby further amended by inserting after section 5E the following two sections:-
Section 5F. For the following purposes, a city or town may defray the cost, including maturing debt and interest, of acquiring, establishing, maintaining, and operating certain facilities and services by charges established by the city or town upon persons making use of such facilities or services: (1) purchasing, hiring, maintaining, and operating ambulances; and (2) establishing, maintaining, and equipping public gymnasiums, swimming pools, bathing beaches, golf courses, artificial ice-skating rinks and other such means of recreation, instruction or exercise.
Section 5G. A city or town may establish a municipal waterways improvement and maintenance fund to receive revenue under subsection (i) of section two of chapter sixty B and sums received from the commonwealth or the federal government, and may appropriate monies in said fund for (1) maintenance, dredging, cleaning and improvement of harbors, inland waters and great ponds of the commonwealth, (2) the public access thereto, (3) the breakwaters, retaining walls, piers, wharves and moorings thereof, and (4) law enforcement and fire prevention.
SECTION 14. Said chapter 40 is hereby further amended by inserting after section 6N, as so appearing, the following section:-
Section 6 O. A city or town may pay part of the premiums for group life insurance for permanent employees under the provisions of section one hundred and thirty-three to one hundred and thirty-eight A, inclusive, of chapter one hundred and seventy-five. The amount of such insurance for any employees whose yearly gross compensation is less than two thousand dollars shall not exceed one thousand dollars, and for any employee whose yearly gross compensation is two thousand dollars or more, such amount shall not exceed two thousand dollars. Any increase in the amount of insurance made possible by an increase in compensation shall take effect on the next succeeding policy anniversary, but no reduction in the amount of insurance shall be required on account of a reduction in compensation. Yearly gross compensation shall not include any overtime pay, and, in the case of hourly workers, shall be computed on the basis of scheduled required work hours. Fifty percent of the amount of any premium thereon shall be paid by the town. Any dividends or other refunds or rate credits shall inure to the benefit of the town and shall be applied to the cost of such insurance.
SECTION 15. Section 8C of said chapter 40, as so appearing, is hereby amended by striking out, in lines 66 and 67, the words "clause (51) of section five" and inserting in place thereof the following words:- this section.
SECTION 16. Said section 8C of said chapter 40, as so appearing, is hereby further amended by adding the following paragraph:-
A city or town may appropriate money in any year to a conservation fund of which the treasurer shall be the custodian. He may deposit or invest the proceeds of said fund in savings banks, trust companies incorporated under the laws of the commonwealth, banking companies incorporated under the laws of the commonwealth which are members of the Federal Deposit Insurance Corporation, or national banks, or invest it in paid up shares and accounts of and in co-operative banks or in shares of savings and loan associations or in shares of federal savings and loan associations doing business in the commonwealth, and any income therefrom shall be credited to the fund. Money in said fund may be expended by said commission for any purpose authorized by this section; provided, however, that no expenditure for a taking by eminent domain shall be made unless such expenditure has been approved in accordance with this section.
SECTION 17. Section 8H of said chapter 40, as so appearing, is hereby amended by adding the following paragraph:-
A city or town may appropriate money in any year to a recycling fund of which the treasurer shall be the custodian. He may deposit or invest the proceeds of said fund in savings banks, trust companies incorporated under the laws of the commonwealth, banking companies incorporated under the laws of the commonwealth which are members of the Federal Deposit Insurance Corporation, or national banks, or invest it in paid up shares and accounts of and in co-operative banks or in shares of savings and loan associations or in shares of federal savings and loan associations doing business in the commonwealth, and any income therefrom shall be credited to the fund. Money in said fund may be expended by said commission for any purpose authorized by this section, other than a taking by eminent domain.
SECTION 18. Section 29 of chapter 43 of the General Laws, as so appearing, is hereby amended by striking out, in line 2, the word "two" and inserting in place thereof the following word:- five.
SECTION 19. Section 2 of chapter 60B of the General Laws, as so appearing, is hereby amended by striking out, in lines 59 and 60, the words "clause (72) of section five" and inserting in place thereof the following words:- section five G.
SECTION 20. Section 7A of chapter 71 of the General Laws, as so appearing, is hereby amended by striking out, in lines 26 to 30, inclusive, the words "sealed bids, and the school committee shall, in the event that a contract is awarded to other than the lowest bidder, file with the department a written statement giving its reasons therefor, which statement shall be open to the public inspection" and inserting in place thereof the following words:- competitive sealed bids pursuant to chapter thirty B.
SECTION 21. Section 5F of chapter 111 of the General Laws, as so appearing, is hereby amended by inserting after the third paragraph the following four paragraphs:-
A city or town may participate in the cost sharing program for the control of aquatic nuisances in those waters of the commonwealth selected for control by the department. To participate in such program, the city or town may contribute up to one-half of the total cost of the control program but not less than one-quarter of the total cost as determined by the department. If a body of water is located in a state park or reservation, or if the body of water is a great pond which the department determines is more heavily used by inhabitants of cities or towns other than the one in which the pond is located, the commonwealth may bear the entire cost of the control; provided, however, that if a state agency operates a recreational facility on a body of water, the department may authorize the city or town to contribute less than one-quarter of the total cost.
In determining the amount of the contribution, the department shall consider the following:
(1) the economic capabilities of the city or town as determined by the department of corporations and taxation;
(2) the use of the waters by communities outside the city or town in which the waters are located; and
(3) the advantages to the commonwealth of the work.
When the body of water is located in more than one city or town, the department shall determine the amount of water area in acres lying in each city or town and shall apportion the local contribution in accordance with said amount. In instances where a city or town boundary is merely contiguous to the shoreline of the waters but does not encompass any water area, the department shall appropriate the costs in accordance with the amount of shoreline in linear feet lying in each town or city as determined by the department.
All city or town funds to be used in the cost sharing program for the control of aquatic nuisances shall be paid to the state treasurer and may be expended by the department for said purposes.
SECTION 22. Section 5B of chapter 252 of the General Laws, as so appearing, is hereby amended by inserting after the first paragraph the following paragraph:-
The board of health may delegate its authority to another agency; provided, however, that said board shall notify the state reclamation board of such delegation; and, provided further, that said agency shall annually file a detailed report of its mosquito control program with said reclamation board.
SECTION 23. The provisions of section three of this act shall apply only to contracts solicited or entered into after the effective date of this act. Any renewal, extension, modification, or exercise of any option under any contract after the effective date of this act shall be subject to the provisions of said section three. The parties to any other contract may agree to the application of the provisions of said section three to the contract.
SECTION 24. Notwithstanding the provisions of any general or special law to the contrary, prior to the effective date of sections one to twenty-three, inclusive, a governmental body as defined in section three is hereby authorized upon the effective date of this section to procure contracts in conformity with the provisions of said sections one to twenty-three, inclusive. A contract so procured shall be valid, and a procurement which complies with the provisions of said sections one to twenty-three, inclusive, shall be deemed to comply with provisions of the General Laws affected by said sections one to twenty-three, inclusive, as if said sections were then in effect.
SECTION 25. Sections one to twenty-three, inclusive, of this act shall take effect on May first, nineteen hundred and ninety. Sections twenty-four and twenty-five shall take effect upon their passage.