Section 39M1/2: Project oversight; owner's representative; qualifications; procurement; powers and duties
Section 39M1/2. (a) The following words shall have the following meanings unless the context clearly requires otherwise:
''Certified estimate of cost'', a good-faith estimate based on the best available information and made by the most senior official in the agency responsible for the contract, accounting for all expenses which could be reasonably foreseen including, but not limited to, those involving design, construction, management, acquisition and disposition of rights of way and contingency costs.
''Cost-plus basis'', a form of compensation in which a premium is added to the actual cost of service to determine a total amount to be paid.
''Major contract'', a contract by which the commonwealth or any of its public agencies or authorities is to procure the construction, repair or rehabilitation of a publicly-owned highway, railway, bridge, tunnel, building platform or any component thereof and for which the certified estimate of cost exceeds $50,000,000, or a contract or lease by which the commonwealth or any of its public agencies or authorities is to procure, directly or indirectly, the construction, repair or rehabilitation of a privately-owned, publicly-used highway, railway, bridge, tunnel, building platform or any component thereof.
''Oversight cost estimate'', an estimate developed by the commonwealth or any agency thereof, prior to the engagement of an owner's representative, of the anticipated total cost of the services of that representative. ''Owner's representative'', an individual registered by the commonwealth as a professional engineer, who has not less than 5 years of experience in the construction and supervision of construction of the type which is the subject of the pertinent major contract in nature, scope and complexity.
''Owner's representative'' shall mean an individual registered by the commonwealth as a professional engineer, who has not less than 5 years of experience in the construction and supervision of construction of the type which is the subject of the pertinent major contract in nature, scope and complexity.
(b) The commonwealth or any agency or authority thereof shall engage and maintain an owner's representative to provide professional project oversight with regard to any major contract. Such representative shall be an individual employed by a corporation, partnership, sole proprietorship, joint stock company, joint venture or other entity engaged in the practice of providing project management services for public construction of the nature, scope and complexity which is the subject of the contract. A public agency may designate an existing employee as owner's representative subject to the conditions set forth in subsection (c).
(c) An existing employee of a public agency may act as its owner's representative if the following conditions are met:
(1) the employee meets or exceeds the qualifications set forth in subsection (b);
(2) the employee has suitable experience in the construction and supervision of projects of the nature, scope and complexity of the relevant major contract; and
(3) The employee and his employer have entered into a memorandum of understanding, contract or other comparable document establishing the independence of the employee as being equal to that of an owner's representative contracted from the private sector;
(d) An owner's representative shall certify in writing, under the pains and penalties of perjury, that his sole responsibility shall be to the commonwealth and the agency which has retained his services. The independent owner's representative shall be wholly independent of the designer, general contractor or any subcontractor involved in the public works project and shall attest to the same in a sworn statement.
(e) An owner's representative shall be subject to chapter 268A.
(f) An owner's representative shall be selected and retained prior to the award of a major contract by any public agency; provided, however, that such agency shall select and procure the services of the owner's representative through a process which is documented in writing, incorporates the evaluation of qualifications and experience and is competitive in nature. The process shall utilize a system of written applications which shall be retained for inspection for a period of not less than 6 months following the selection of an owner's representative. The process shall also be promulgated in writing by the inspector general prior to the commencement of any hiring process pursuant to this section.
(g) Any major contract executed prior to the selection of an owner's representative shall be null and void as against public policy. Prior to the award of any major contract, the public agency seeking to award the contract shall certify in writing to the inspector general that an owner's representative has been selected.
(h) Any individual, organization or agency eligible to receive information from an owner's representative shall do so in a form and manner approved and promulgated by the inspector general. Upon receipt of such request, the owner's representative shall respond within 60 days. Such response shall contain the requested information, indicate why it is not available to the party requesting it or indicate a date certain when the information will be available and the date on which it will be provided. A party denied information pursuant to this section may appeal such denial to the inspector general.
(i) The owner's representative shall conduct a peer review of engineering elements on its projects.
(j) The owner's representative shall be the primary manager of cost recovery and value engineering on the project.
(k) The owner's representative shall enjoy unfettered access to project work sites, documents, and correspondence.
(l) The owner's representative shall file reports on the project, under oath, not later than December 31 of each year in which their contract is in effect, to the inspector general, to the secretary of transportation and public works, the house and senate chairs of the joint committee on transportation and to the state auditor.
(m) The inspector general shall promulgate regulations governing the operations and actions of owner's representatives which shall include, but not be limited to, sanctions for misfeasance, malfeasance and the failure to adhere to any contracts or agreements executed pursuant to this section.
(n) In no instance shall an awarding agency execute a contract that pays the independent owner's representative on a cost-plus basis. Awarding agencies shall establish an oversight cost estimate for the work of an owner's representative prior to the hiring of the owner's representative.