Session Law

2014

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Chapter 299 AN ACT RECOGNIZING THE PROFESSION OF INTERIOR DESIGNERS TO BID ON STATE CONTRACTS

     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.  Subsection (b) of section 44 of chapter 7C of the General Laws, as appearing in the 2012 Official Edition, is hereby amended by striking out the definition of “Continued services” and inserting in place thereof the following definition:-  
     “Continued services”, authorization for a designer or interior designer who has been appointed for 1 stage of a project to act as the designer or interior designer for a succeeding stage or stages of the same project.
     SECTION 2.  Said section 44 of said chapter 7C, as so appearing, is hereby further amended by inserting after the word “designer”, in lines 29 and 30, the following words:- , interior designer.
     SECTION 3.  Said subsection (b) of said section 44 of said chapter 7C, as so appearing, is hereby further amended by striking out the definition of “Extended services” and inserting in place thereof the following 4 definitions:-
     “Extended services”, authorization for a designer or interior designer who has been appointed to provide design services for a project to act as designer or interior designer for work to be done on another project not originally included in that designer’s or interior designer’s contract.
     “Interior Designer”, an individual, corporation, partnership, sole proprietorship, joint stock company, joint venture or other entity engaged in the practice of interior design, who may serve as the prime consultant for projects that primarily involve construction or other work relating to the nonstructural interior elements of a building or structure and who provides services that do not require a registered architect, landscape architect or engineer; provided, however, that an interior designer shall demonstrate competence by completion of a nationally-recognized certification.
     “Nonstructural”, interior elements or components that are not load-bearing and do not require design computations for a building’s structure, including, but not limited to, ceiling and partition systems and excluding the structural frame supporting a building.
     “Partition”, a wall which does not support a vertical load of a structure other than its own weight, but may support loads attached to it, such as cabinetry, shelving or grab bars, and does not extend further than from the floor of an interior area of a structure designed for human habitation or occupancy to the underside of the deck of that structure.
     SECTION 4.  Section 46 of said chapter 7C, as so appearing, is hereby amended by inserting after the word “designers”, in line 2, the following words:- , interior designers.
     SECTION 5.  Said section 46 of said chapter 7C, as so appearing, is hereby further amended by inserting after the word “designer”, in lines 14 and 15, the following words:- or interior designer.
     SECTION 6.  Subsection (b) of said section 46 of said chapter 7C, as so appearing, is hereby amended by striking out the last sentence and inserting in place thereof the following sentence:-  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 and select designers and interior designers to perform design services and continue or extend the services of any designers or interior designers in accordance with the agency’s last written designer or interior designer selection procedures approved by the board in conformity with this section.
     SECTION 7.  Said section 46 of said chapter 7C, as so appearing, is hereby further amended by striking out, in lines 39, 40 and 50, the word “selection” and inserting in place thereof, in each instance, the following words:- or interior designer selection.
     SECTION 8.  Subsection (d) of said section 46 of said chapter 7C, as so appearing, is hereby amended by striking out clause (iii) and inserting in place thereof the following clause:-
     (iii)  the agency director filed a semi-annual report containing: a list of contracts for designer or interior designer services awarded by the agency since its last application, including for each project the name and address of any designer or interior designer awarded such contracts; a brief description of the project; the estimated, or if available, the final construction cost for the project; the estimated or, if available, final fee paid to the designer or interior designer; and certification that all contracts so listed were awarded by the procedure described in the agency’s last application.
     SECTION 9.  Section 47 of said chapter 7C, as so appearing, is hereby amended by striking out, in lines 1, 7 and 13, the word “designer” and inserting in place thereof, in each instance, the following word:- design.
     SECTION 10.  Subsection (b) of said section 47 of said chapter 7C, as so appearing, is hereby amended by striking out clause (iii) and inserting in place thereof the following clause:-
     (iii)  the qualification required of applicants for the projects, including whether interior designers are eligible to apply, as determined by subsection (h) of section 48;.
     SECTION 11.  Said section 47 of said chapter 7C, as so appearing, is hereby further amended by inserting after the word “designers’”, in line 22, the following words:- and interior designers’.
     SECTION 12.  Section 48 of said chapter 7C, as so appearing, is hereby amended by inserting after the word “designer”, in lines 1, 7 and 38, in each instance, the following words:- , interior designer.
     SECTION 13.  Said section 48 of said chapter 7C, as so appearing, is hereby further amended by inserting after the word “designers”, in line 43, the following words:- and interior designers.
     SECTION 14.  Said section 48 of said chapter 7C, as so appearing, is hereby further amended by striking out subsection (g) and inserting in place thereof the following 2 subsections:-
     (g)  Interior designers shall be eligible to compete as the prime consultant only for projects that primarily involve construction or other work related to nonstructural interior elements of a building or structure.
     (h)  The division of capital asset management and maintenance, in consultation with the board, shall develop a standard designer and interior designer evaluation form that shall be completed by every public agency, as defined in section 44A of chapter 149, upon completion of the work under a design contract under its control. The evaluation form shall be submitted to the division and the board for the designer’s or interior designer’s qualification file. The official from the public agency or the owner’s representative shall certify that the information contained on the designer’s or interior designer’s evaluation form represents, to the best of the official’s or representative’s knowledge, a true and accurate analysis of the designer’s or interior designer’s performance record on the contract. The public agency shall mail a copy of the designer’s or interior designer’s evaluation form to the designer or interior designer who may, within 30 days, submit a written response to the division and board disputing any information contained in the form and setting forth any additional information concerning the building project or the oversight of the building construction contract by the public agency as may be relevant to the evaluation of the designer’s or interior designer’s performance. The division and board shall attach such a response to the evaluation form for inclusion in the designer’s or interior designer's qualification file.
     No public employee or public employer, as defined in section 1 of chapter 258, and no person shall be liable for an injury or loss to a designer or interior designer as a result of the completion of a designer or interior designer evaluation form as required by this section, unless the individual completing the evaluation form has been found by a superior court of competent jurisdiction to have acted in a willful, wanton or reckless manner. If a designer or interior designer, seeking to recover damages resulting from injury caused by such an evaluation, commences a suit against a person who has completed a designer or interior designer evaluation form as required by this section, the public agency for whom the evaluation form was completed or the commonwealth, if the evaluation was completed for a state agency, shall provide for the legal representation of that person. The public agency or the commonwealth, where an evaluation was completed for a state agency, shall indemnify the person who completed the evaluation from all personal financial losses and expenses including, but not limited to, legal fees and filing costs, if any, in an amount not to exceed $1,000,000; provided, however, that no such person shall be indemnified for losses other than legal fees and filing costs under this section if that person is found by a court or a jury to have acted in a willful, wanton or reckless manner.
     The awarding authority shall provide the designer or interior designer with a written preliminary evaluation at the completion of the schematic phase of the project for informational purposes.
     A public agency that fails to complete and submit the designer or interior designer evaluation form, together with any written response by the designer or interior designer, to the division within 70 days of the completion of a project shall be ineligible for receipt of public funds disbursed by the commonwealth for public building or public works projects.
     SECTION 15.  Section 49 of said chapter 7C, as so appearing, is hereby amended by inserting after the word “designers”, in line 32, the following words:-  and interior designers.
     SECTION 16.  Said section 49 of said chapter 7C, as so appearing, is hereby further amended by inserting after the word “designer”, in lines 35 and 36, the following words:- or interior designer.
     SECTION 17.  Section 50 of said chapter 7C, as so appearing, is hereby amended by striking out subsections (a) and (b) and inserting in place thereof the following 2 subsections:-
     (a)  In the selection of a designer or interior designer when the fee for design services has been set by the commissioner prior to the selection process, the commissioner shall appoint a designer or interior designer from among the list transmitted to the commissioner under section 49. If the commissioner appoints any designer or interior designer other than the 1 ranked first by the board, the commissioner shall file a written justification of the appointment with the board.
     (b)  When the fee for design services is to be negotiated, the commissioner shall review the list transmitted by the board and may exclude any designer or interior designer from the list if a written explanation of the exclusion is filed with the board. The commissioner shall then appoint a designer or interior designer based on successful fee negotiation. The commissioner or persons designated by the commissioner shall first negotiate with the first ranked designer or interior designer remaining on the list. Should the commissioner be unable to negotiate a satisfactory fee with the first ranked designer or interior designer within 30 days, negotiations shall be terminated and negotiations undertaken with the remaining designers or interior designers, 1 at a time, in the order in which they were ranked by the board, until an agreement is reached. In no event may a fee be negotiated which is higher than a maximum fee set by the commissioner prior to selection of finalists. Should the commissioner be unable to negotiate a satisfactory fee with any designer or interior designer initially selected as a finalist by the board, the board shall recommend additional finalists in accordance with this chapter. The commissioner may require a finalist with whom a fee is being negotiated to submit a fee proposal and include with it such information as the commissioner requires to provide current cost and pricing data on the basis of which the designer’s or interior designer’s fee proposal may be evaluated.
     SECTION 18.  Section 51 of said chapter 7C, as so appearing, is hereby amended by striking out subsection (b) and inserting in place thereof the following subsection:-
     (b)  If the designer’s, interior designer’s or construction manager’s fee is negotiated, the designer, interior designer or construction manager shall file a truth-in-negotiations certificate prior to being awarded the contract by the commissioner, which must be incorporated into the contract. The certificate shall contain:
     (i)  a statement that the wage rates and other costs used to support the designer’s or interior designer’s compensation are accurate, complete and current at the time of contracting; and
     (ii)  an agreement that the original contract price and any additions to the contract may be adjusted within 1 year of completion of the contract to exclude any significant amounts if the commissioner determines that the fee was increased by such amounts due to inaccurate, incomplete or noncurrent wage rates or other costs.
     SECTION 19.  Said section 51 of said chapter 7C, as so appearing, is hereby further amended by striking out subsections (d) to (i), inclusive, and inserting in place thereof the following 6 subsections:-
     (d)  Every contract for design services awarded under sections 44 to 58, inclusive, shall include the following:
     (i)  certification that the designer, interior designer or construction manager has not given, offered or agreed to give any person, corporation or other entity any gift, contribution or offer of employment as an inducement for or in connection with the award of the contract for design services;
     (ii)  certification that no consultant to or subcontractor for the designer, interior designer or construction manager has given, offered or agreed to give any gift, contribution or offer of employment to the designer, interior designer or construction manager or to any other person, corporation or entity as an inducement for or in connection with the award to the consultant or subcontractor of a contract by the designer, interior designer or construction manager;
     (iii)  certification that no person, corporation or other entity, other than a bona fide full-time employee of the designer, interior designer or construction manager, has been retained or hired by the designer, interior designer or construction manager to solicit for or in any way assist the designer, interior designer or construction manager in obtaining the contract for design services upon an agreement or understanding that such person, corporation or other entity be paid a fee or other consideration contingent upon the award of the contract to the designer or interior designer; and
     (iv)  certification with respect to contracts which exceed $10,000 or which are for the design of a building for which the budgeted or estimated construction costs exceed $100,000 that the designer or interior designer has internal accounting controls as required by subsection (c) of section 39R of chapter 30 and that the designer or interior designer has filed and will continue to file an audited financial statement as required by subsection (d) of said section 39R of said chapter 30.
     (e)  A public agency shall not enter into a contract for design services unless the public agency or the designer or interior designer has obtained professional liability insurance covering negligent errors, omissions and acts of the designer or interior designer or of any person or business entity for whose performance the designer or interior designer is legally liable arising out of the performance of the contract. The total amount of such insurance shall at a minimum equal the lesser of $1,000,000 or 10 per cent of the project’s estimated cost of construction or such larger amounts as the public agency may require for the applicable period of limitations. A designer or interior designer required by the public agency to obtain all or a portion of such insurance coverage at the designer’s or interior designer’s own expense shall furnish a certificate of insurance coverage to the public agency prior to the award of the contract. For the purposes of this subsection, “public agency” shall have the meaning set forth in section 1.
     At the request of the director, a consultant employed by a designer or interior designer subject to this subsection shall obtain and maintain a liability insurance policy covering negligent errors, omissions and acts of such consultant or of any person or business entity for whose performance the consultant is legally liable arising out of the performance of the contract for consultant services. The consultant shall furnish a certificate of such insurance coverage to the division in the case of a consultant hired by a designer or interior designer selected pursuant to section 49 or to a public agency not subject to the jurisdiction of the board prior to the employment of such consultant by the designer or interior designer. A liability insurance policy maintained under this subsection shall provide for coverage of such type and duration and in such amount as the public agency shall require.
     (f)  A designer, interior designer, construction manager or programmer who has been determined by the board to have provided materially false statements or information under this section shall be disqualified by the board from future work on any project for such time as the board determines is appropriate.
     (g)  Contracts for design services may include a requirement that the designer or interior designer be responsible for overseeing the construction phase of the project.
     (h)  An awarding authority in a city or town may allow a designer or interior designer who conducted a feasibility study to continue with the design of a project; provided, however, that nothing in this subsection shall prohibit an awarding authority from commissioning, at the discretion of the awarding authority, an independent review by a knowledgeable and competent individual or business doing such work, of the feasibility of the designer's or interior designer’s work to insure its reasonableness and its adequacy before allowing the designer or interior designer to continue on the project.
     (i)  Contracts for design services shall include a provision that the designer or interior designer or the consultants hired by the designer or interior designer shall not be compensated for any services involved in preparing changes that are required for additional work that should have been anticipated by the designer or interior designer in the preparation of the bid documents, as reasonably determined by the executive head of the public agency responsible for administering the design contract. For the purpose of this subsection, “public agency” shall have the meaning as set forth in section 1.
     SECTION 20.  Section 52 of said chapter 7C, as so appearing, is hereby amended by inserting after the word “designer”, in lines 1 and 7, in each instance, the following words:- or interior designer.
     SECTION 21.  Section 53 of said chapter 7C, as so appearing, is hereby amended by inserting after the word “designer”, in line 2, the following words:- , interior designer.
     SECTION 22.  Section 54 of said chapter 7C, as so appearing, is hereby amended by striking out subsection (b) and inserting in place thereof the following subsection:-
     (b)  The board shall publish guidelines to assist public agencies not within the board’s jurisdiction in the establishment of a professional and objective designer or interior designer selection procedure, including a model application form, consistent with sections 44 to 58, inclusive. The board shall publish a standard designer or interior designer selection form which shall be used by all cities, towns and public agencies not within the board’s jurisdiction; provided, however, that before publishing the standard form, the board shall seek input from the cities, towns and other public agencies not within the board’s jurisdiction. Any fee guidelines promulgated by the board shall be accompanied by a recommended basic scope of designer’s or interior designer’s services that shall reflect the work associated with the fee guidelines. From time to time, and not less frequently than every 3 years, the board shall review and revise the fee schedule based upon prevailing costs at the time of such review and revision.
     SECTION 23.  Section 55 of said chapter 7C, as so appearing, is hereby amended by inserting after the word “designer”, in line 7, the following words:- or interior designer.

Approved August 21, 2014.