Competitive Selection of a Private Sector Owner's Representative

If a project requires an Owner's Representative under M.G.L. c. 30, § 39M½, and the Public Agency chooses to utilize a Private Sector Owner's Representative, the Public Agency shall select the Private Sector Owner's Representative using a competitive, qualifications-based selection process that complies with 945 CMR 4.06. (1) A Public Agency may procure a single Owner's Representative for a specific project or utilize a group procurement process to prequalify multiple Applicants as Owner's Representatives for a set period of time, not to exceed five years, during which each Owner's Representative may serve on one or more projects being undertaken by the Public Agency. A Public Agency that prequalifies multiple Owner's Representatives may assign a project to one of the prequalified Applicants without a further publicly advertised selection process. Once assigned, the Applicant may serve as Owner’s Representative for the duration of the project. (2) A Public Agency that chooses to utilize a Private Sector Owner's Representative must advertise a solicitation in the Central Register published by the Secretary of the Commonwealth no fewer than 14 days in advance of the deadline for submitting responses. (3) The solicitation shall include, at a minimum, the following information: (a) the deadline for submitting responses to the solicitation, the address to which the responses are to be delivered, and the timeframe in which the Public Agency will respond; (b) a list of all projects for which the Applicant may be selected to serve as an Owner's Representative, the anticipated schedule for each project, and, if available, the Certified Estimate of Cost for each project; (c) a specific description of the scope of services expected of the selected Owner's Representative; (d) the evaluation procedure and criteria for the selection of the Owner's Representative, including any rating system, and the schedule for the selection process; (e) the minimum experience required of the Owner's Representative and any presentation, interview or other qualification requirements; and (f) a prohibition against any unauthorized communication or contact with the Public Agency. (4) The Public Agency shall make the solicitation available to anyone who requests it. (5) Responses submitted by Applicants must identify any potential conflicts of interest. Additionally, all Applicants must, at a minimum, certify to the following: (a) that the Applicant is not presently debarred, suspended, proposed for debarment, or declared ineligible for the award of contracts by any state or federal agency; (b) that, within the ten-year period preceding the date upon which the Applicant submits a response, the Applicant has not been convicted of or had a civil judgment rendered against them for any of the following: commission of fraud or a criminal offense in connection with obtaining, attempting to obtain, or performing a public (federal, state, or local) contract or subcontract; violation of federal or state antitrust statutes relating to the submission of offers; or commission of embezzlement, theft, forgery, bribery, falsification or destruction of records, making false statements, tax evasion or receiving stolen property; (c) that the Applicant is not presently indicted for, or otherwise criminally or civilly charged by a governmental entity with, commission of any of the offenses enumerated in 945 CMR 4.06(4)(b); and (d) if applicable, that the Applicant's firm, partnership, corporation or association has not, within a seven-year period preceding the date upon which the Applicant signs the response, had one or more contracts terminated by default by any federal, state or local agency. (6) An Owner's Representative shall be selected in the following manner: (a) In evaluating the responses, the Public Agency shall use the criteria set forth in the solicitation. The Public Agency may opt to engage in post-submission discussions with one or more Applicants that meet the minimum criteria. The Public Agency may request additional information regarding an Applicant's qualifications, approach to the project, and ability to furnish the required services from Applicants that the Public Agency deems the most qualified based on the Public Agency's preliminary review of the applications. (b) The procedures that a Public Agency creates for the screening and selection of Owner's Representatives must comply with M.G.L. c. 30, 39M½ and 945 CMR 4.06, but otherwise shall be within the discretion of the Public Agency and may be adjusted to accommodate the Public Agency's scope, schedule and budget objectives for a particular project. (c) For single project procurements, after evaluating and ranking all Applicants based on their qualifications, the Public Agency may negotiate compensation with the highest-ranked Applicant. The compensation paid to an Owner's Representative shall be reasonable and fair to the Public Agency as determined solely by the Public Agency. (d) If the Public Agency is unable for any reason to negotiate a contract with the highest-ranked Applicant that is reasonable and fair to the Public Agency, the Public Agency shall, in writing, formally discontinue negotiations with the highest-ranked Applicant. The Public Agency may opt to either terminate the Owner's Representative selection process or negotiate with the next highest-ranked Applicant. The process shall continue in this manner through successive-ranked Applicants until the Public Agency reaches an agreement with an Applicant or the Public Agency terminates the Owner's Representative selection process. (7) Following the selection of an Owner's Representative, a Public Agency shall retain all applications received, including any related evaluation and ranking sheets, for at least six months.