Session Laws

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. The commissioner of the division of capital planning and operations is hereby authorized, notwithstanding the provisions of chapter seven of the General Laws but subject to this act, to acquire by deed in fee simple absolute on behalf of the commonwealth, as a gift from the Holyoke Community College Foundation, thirty acres of land, more or less, together with any improvements, utilities and appurtenant rights and easements related thereto, which land is located in the city of Holyoke, as all the property described in a deed recorded in the Hampden county registry of deeds in Book 6586, Page 309, except for the portion thereof which is shown as lots one through nine, and the land owned in common by the owners of lots one through nine, on a Plan of Land for Space Realty Trust prepared by Palmer Engineering Corporation, dated July 30, 1996, and recorded in said registry of deeds in Plan Book 250, Page 123. The property shall be acquired for use by the college as the new gymnasium/athletic and fitness facility funded pursuant to item 7506-7962 in section two of chapter two hundred and sixty-seven of the acts of nineteen hundred and ninety-five, including, but not limited to, the planning, design and construction of a field house and aquatics center at said facility.

SECTION 2. Said commissioner is hereby authorized to plan, design and construct the new gymnasium/athletic and fitness facility on the property described in section one and is hereby authorized to receive and expend such sums from the college or other entities as they may make available to the division for such purpose.

SECTION 3. Said commissioner shall develop alternative methods of procurement of design and construction services, including design/build services, for said new gymnasium/athletic and fitness facility, hereinafter called the project:

(a) Notwithstanding the provisions of sections thirty-eight A> to thirty-eight O, inclusive, of chapter seven of the General Laws, sections thirty-nine M of chapter thirty of the General Laws, and section forty-four A to forty-four J, inclusive, of chapter one hundred and forty-nine of the General Laws or any other general or special law regulating the design, construction, advertising or bidding of design and of construction contracts, or any other general or special law to the contrary, said commissioner may select and contract with a single contractor to provide design/build services for the design and construction of the project; provided, however that the design/build contractor shall be certified by said commissioner to perform the work required and shall be selected through a competitive process conducted in conformance with subsection (b).

(b) Said commissioner may develop procedures for the procurement of design/build services in consultation with the office of the inspector general. Said procedures shall include but shall not be limited to the following provisions:

(1) Said commissioner shall obtain design/build services utilizing sealed competitive proposals. Said commissioner shall solicit proposals through a request for proposals which shall include: the time and date for receipt of proposals; the address of the office to which the proposal shall be delivered; proposed contractual terms and conditions, some of which may be deemed mandatory or nonnegotiable; standards by which acceptability will be determined as to quality, workmanship results of inspections and tests and suitability for a particular purpose; all evaluation criteria that will be utilized by said commissioner and such other matters as may be determined by said commissioner. The request for proposals for design/build services shall also describe the scope of the design/build project and identify all quality and performance requirements for said project.

(2) Public notice of each request for proposals shall be published at least three weeks prior to the time specified in such notice for the receipt of proposals, in the central register published by the state secretary and in a daily newspaper of general circulation in Hampden county. The request for proposals for design/build services shall also be published in at least one trade journal of national distribution.

(3) Each request for proposals may incorporate documents by reference; provided, however, that the request for proposals shall specify where offerors may obtain such documents. The request for proposals for design/build services may provide for the separate submission of price, and so provided, shall indicate when and how offerors shall submit the price, and shall specify that bid security in a form specified by said commissioner and in an amount equal to five percent of the proposed contract price shall accompany such proposal. Said commissioner shall make copies of each request for proposals available to all offerors on an equal basis. Said commissioner may conduct pre-proposal conferences and interviews with interested parties prior to receiving proposals. An offeror's proposal shall be unconditional except as provided in this paragraph. An offeror may correct, modify or withdraw a proposal by written notice received in the office designated in the request for proposals prior to the time and date set for the opening of proposals.

(4) At the opening of the proposals, said commissioner 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. After opening of the proposals, an offeror may not correct, modify or withdraw the price or any other provisions of its proposal in a manner prejudicial to the interests of the commonwealth or fair competition. Said commissioner may waive minor informalities or allow the offeror to correct them.

(5) Said commissioner 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 any general or special law to the contrary, until the completion of the selection process, the contents of the proposals and the selection process shall not be disclosed to competing offerors and shall not be public documents.

(6) Said commissioner shall appoint a design/build selection committee which shall be composed of experts in design, construction and administration, of gymnasium/athletic and fitness facilities. The committee shall evaluate the proposals received by said commissioner. Said committee shall conduct its evaluations of the proposals based solely on the criteria set forth in the request for proposals. In the event that price proposals are to be submitted separately from proposals for design/build services, said committee shall not evaluate these and the commissioner shall not disclose such price proposals to the committee until said committee has completed its evaluation of the proposals for design/build services.

(7) For each proposal, said committee shall specify in writing on each evaluation criterion a rating of highly advantageous, not advantageous or such additional rating as the committee finds reasonable, and shall specify in writing a composite rating for each proposal and the reasons for such composite rating.

(8) Said commissioner shall make a determination of the most advantageous proposal for the site and for design/build services from a responsible and responsive offeror based upon the ratings given to the proposals by the appropriate selection committees. If price proposals have been submitted separately for design/build services, said commissioner shall also base such determination on an evaluation of such price proposals. The commissioner may negotiate all contract terms not deemed mandatory or nonnegotiable with such offerors. If, after negotiation with such offerors, said commissioner is unable to finalize a contract for either acquisition of the site or for design/build services, or both, that is in the commonwealth's best interests, the commissioner may negotiate with the offeror of the next most advantageous proposal submitted by a responsible and responsive offeror based upon the ratings of the appropriate selection committee and upon an evaluation of the relevant price proposal if separately submitted.

(9) The contract for design/build services shall be awarded by said commissioner to the responsible and responsive offerors submitting the most advantageous proposals based upon the evaluation criteria set forth in the request for proposals and the terms of the negotiated contract. Said commissioner shall complete the selection process by written notice to the selected offeror or by notice of rejection to all proposers, as specified below. Said commissioner may reserve the right to reject any or all proposals if it is in the public interest to do so.

(10) For the purposes of this section, the term responsible offeror shall mean a person, corporation or other organization or entity which has the capability to perform fully the contract requirements, and the integrity and reliability which assures good faith performance, and the term "responsive offeror" shall mean a person, corporation or other organization or entity which has submitted a proposal which conforms in all respects to the request for proposals.

(11) If said commissioner awards the contract for design/build services to an offeror which did not submit the lowest price proposal, said commissioner shall explain the reasons for such award in writing, which shall be available for public inspection.

(12) Prior to execution of a design/build contract, the selected offeror shall furnish to said commissioner a performance bond and payment bond, each in the sum of the contract price and issued by a surety company qualified to issue bonds in the commonwealth and satisfactory to said commissioner. If the selected offeror fails to execute a contract or to furnish the necessary bonds within the time period specified in the request for proposals, said commissioner may award the design/build contract to the offeror of the next most advantageous proposal.

(13) Said commissioner shall return bid security to all design/build offerors which are not selected. The design/build selection committee shall have conferences describing relative strengths and weaknesses of each proposal with the other qualified offerors which were not selected if the offerors request to have such conferences.

(14) Said commissioner shall prepare a written report of the reasons for its selection determinations and any subsequent determinations to negotiate with additional proposers, including the recorded votes, if any that were taken which shall be available to the public.

Said commissioner shall submit final procedures for site selection or procurement of design/build services to the inspector general for comment at least thirty days prior to the publication of notice of request for proposals. Such procedures and the inspector general's comments shall be submitted to the governor, the senate president, the speaker of the house and the members of the general court at least forty-five days before the execution of any contract for site selection or procurement of design/build services.