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  • Section 46 Jurisdiction of designer selection board; exemptions from jurisdiction

Section 46. (a) The board shall have jurisdiction over the selection of all designers, programmers, and construction managers performing design services in connection with any building project for all public agencies within paragraphs (1), (2) and (4) of section 4, except those public agencies within section 54, and the procedures promulgated by any agency of the commonwealth for such selection by any housing authority subject to paragraph (3) of said section, unless a specific exemption from the board’s jurisdiction is provided under this section.

(b) The board shall grant an exemption for 2 years from its jurisdiction to each public agency within paragraphs (3) and (4) of section 4, but in no event to any public agency within paragraphs (1) and (2) of said section 4, if the agency has filed a written application for an exemption pursuant to subsection (c) of this section; provided, however, that the board shall withhold an exemption if the board determines that the designer selection procedure proposed by the public agency does not substantially incorporate the procedures required in section 45 to 53, inclusive, and section 56, or that the selection of finalists will not be made with the advice of design professionals or that the procedure proposed by the public agency does not satisfy the purposes of sections 44 to 58, inclusive, as set forth in said section 44, or that withholding such an exemption is in the best interest of the commonwealth; provided, however, that nothing in this section shall be interpreted to require the establishment of a board as prescribed in section 45 or to waive or in any way diminish the requirements imposed by any other general law. No withholding of an exemption shall take effect until the board shall have specified in writing the reasons for withholding an exemption and any changes in the agency’s procedures which are required before an exemption will be granted. An agency granted an exemption or renewal thereof from the jurisdiction of the board shall, during any period such exemption or renewal is in effect, advertise for designers, select any designers to perform any design services, and continue or extend the services of any designers in accordance with the agency’s last written designer selection procedures approved by the board in conformity with this section.

(c) An application by a public agency for exemption from the jurisdiction of the board pursuant to this section must be verified by the agency director under the penalties of perjury, and must contain:

(i) a detailed description of the designer selection process and the written designer selection procedures which the agency proposes to use;

(ii) a statement that the agency’s proposed designer selection process substantially incorporates the procedures required of the board in sections 45 to 53, inclusive, and section 56;

(iii) a statement that the agency’s projects are not subject to the jurisdiction of the division of capital planning and operations; and

(iv) any other information required by the board.

(d) An exemption shall be renewed by the board on a biennial basis if:

(i) the board finds that the requirements of subsection (b) are met at the time of the renewal;

(ii) the agency director files a verified application for renewal containing a description of any proposed changes in its designer selection procedure; and

(iii) the agency director had filed a semi-annual report containing:

a list of all contracts for designer services awarded by the agency since its last application, including for each project the name and address of any designer awarded such contracts, a brief description of the project, the estimated, or if available, the final construction cost for the project, and the estimated or, if available, final fee paid to the designer; and certification that all contracts so listed were awarded by the procedure described in the agency’s last application.

(e) Subject to subsection (f), a contract for design services shall be exempt from jurisdiction of the board if: (i) the design fee under the contract is less than $10,000; or (ii) the estimated construction cost of the project for which the design services are required is less than $100,000; or (iii) the contract is for the fabrication or installation of modular buildings procured in accordance with section 44E of chapter 149; or (iv) the contract is for the demolition of buildings. Projects consisting of energy management services procured in accordance with section 11C of chapter 25A and regulations promulgated thereunder shall be exempt from the jurisdiction of the board.

(f) The following types of projects, and contracts for design services for such projects, shall not be exempt from the board’s jurisdiction:

(i) contracts for continued or extended services on projects over which the board otherwise has jurisdiction; and

(ii) projects otherwise subject to the jurisdiction of the board for which an agency or the division intends to use its own staff to perform design services, except projects within Class I, as defined by subsection (d) of section 49, unless the board determines that the agency or the division has the capability with its existing staff to perform those services on the project in question, applying the same criteria as are used for selection of consultant designers.