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April 16, 2024 Clear | 45°F
The 193rd General Court of the Commonwealth of Massachusetts

Section 16: Detailed application for design build contract; exempt agencies

Section 16. (a) Before undertaking a public works project using design build, an awarding authority shall notify and submit a detailed application to proceed to the office of the inspector general. The detailed application shall conform to regulations and procedures promulgated by the inspector general and as may be amended from time to time. In order to receive a notice to proceed from the office of the inspector general, the awarding authority shall demonstrate the following:

(1) The awarding authority has authorization from its governing body to enter into a contract for design build. The authorization shall include the results of any public vote if applicable.

(2) The awarding authority has the capacity, a plan and procedures in place and approval by the governing body, where appropriate, to effectively procure and manage a design build entity for the specific project.

(3) The awarding authority has in place procedures to ensure fairness in competition, evaluation and reporting of results in the procurement process.

(4) The public works project has an estimated construction value of $5,000,000 or more.

(5) The awarding authority has determined that the use of design build is appropriate for the public works project and states in writing the reasons for the determination.

(b) An awarding authority that meets all requirements established by the inspector general shall be issued a notice to proceed to use design build for a public works project. If the inspector general declines to issue a notice to proceed to an awarding authority, the inspector general shall provide in writing to the awarding authority the reason or reasons for the decision. An awarding authority that does not receive a notice to proceed from the inspector general may re-submit the application upon correcting or responding to the reason or reasons provided to the awarding authority by the inspector general. The inspector general shall review the resubmitted application and, if the application meets the requirements established by the inspector general, shall issue a notice to proceed.

(c) The inspector general shall consider applications for approval to use design build in a timely manner and shall make decisions on such applications on an awarding authority's application within 60 days of the date the application is submitted to the inspector general.

(d) Notwithstanding subsection (a), the Massachusetts highway department, the Massachusetts port authority, the Massachusetts Bay Transportation Authority, and the Massachusetts water resources authority, hereinafter, ''exempt agencies'', shall not be subject to said subsection (a). Each exempt agency shall submit its procedures for the procurement and use of design build to the inspector general, and so long as the inspector general determines that the procedures of an exempt agency comply with sections 1 to 10, inclusive, the inspector general shall approve the procedures and each exempt agency, so approved, may use the design build delivery method consistent with the procedures so approved on building projects. Each exempt agency shall annually submit its procedures to the inspector general for review and approval by the inspector general. If an exempt agency modifies or amends the procedures so approved, the exempt agency shall immediately submit the amended procedures to the inspector general for approval. The inspector general shall have 60 days from the time an exempt agency submits its procedures to approve or disapprove the procedures. An exempt agency whose procedures have been disapproved may correct the deficiency or deficiencies contained therein and re-submit the corrected procedures to the inspector general for review and approval. The inspector general shall conduct an expedited review of corrected procedures.

(e) A awarding authority after receiving a notice to proceed, or an exempt agency after having its procedures approved, may use design build as approved. The awarding authority or exempt agency shall procure a design build entity in accordance with the 2 phase selection process as provided in sections 17 to 19, inclusive.