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Designer Selection Procedures City of Salem ("Awarding Authority") Adopted January 14, 2019 Procedures based on Commonwealth’s model procedures details/model-designer-selection-procedures-for-municipalities-and-other-local-public) updated and adapted for City of Salem. 1. These procedures govern the selection of designers for any municipal building project subject to the state designer selection law, M.G.L. c. 7C, 44-58. Any other local law governing the procurement of services will be inapplicable to these procurements. 2. The Mayor, hereinafter the “Approving Body,” has the authority to conduct the designer selection process for the Awarding Authority. The Approving Body may delegate any duties described herein to the extent such delegation is permissible by law. 3. The Approving Body shall designate the individual or group of individuals, hereinafter referred to as "the Designer Selection Committee" and as authorized by the Salem City Charter, Section 36A, which will conduct the designer selection process. No member of the Committee shall participate in the selection of a designer for any project if the member, or any of the member's immediate family: a. has a direct or indirect financial interest in the award of the design contract to any applicant; b. is currently employed by, or is a consultant to or under contract to, any applicant; c. is negotiating or has an arrangement concerning future employment or contracting with any applicant; or d. has an ownership interest in, or is an officer or director of, any applicant. 4. A Request for Qualifications (RFQ) for each contract subject to these procedures shall be advertised in accordance with M.G.L. Chapter 7C Sections 44-58. 5. The advertisement shall contain the following information: a. a description of the project, including the specific designer services sought, the time period within which the project is to be completed, and, if available, the estimated construction cost; b. if there is a program for the building project, a statement of when and where the program will be available for inspection by applicants; c. when and where a briefing session (if any) will be held; d. the qualifications required of applicants; e. the categories of designers' consultants, if any, for which applicants must list names of consultants they may use; f. whether the fee has been set or will be negotiated; if the fee has been set, the amount of the fee must be listed in the advertisement; g. when and where the RFQ can be obtained and the applications must be delivered. ---PAGE BREAK--- 6. The RFQ shall include the most current "Standard Designer Application Form for Municipalities and Public Agencies not within DSB Jurisdiction," which is available for download from the Massachusetts Designer Selection Board. The Application Form may be amended to include additional information on a project-specific basis. 7. The Committee shall evaluate applicants based on the following criteria: a. prior similar experience; b. past performance on public and private projects; c. financial stability; d. identity and qualifications of the consultants who will work with the applicants on the project; e. Capacity to undertake the project, f. Affirmative Action goals as set by the Appointing Body, the Commonwealth or Federal Government, and g. any other criteria that the Committee considers relevant to the project. 8. Design services such as the preparation of programs and feasibility studies, construction management, and construction scheduling must be performed by licensed, registered, and experienced designers as applicable and required by law. The RFQ must require licensed, registered, and experienced designers. 9. The Committee shall select at least three finalists. Finalists may be required to appear for an interview or provide additional information to the Committee, provided that all finalists are afforded an equal opportunity to do so. 10. No proposal shall be accepted from or for any person who has broken a contract with the City during the three years preceding. 11. The Committee shall rank the finalists in order of qualification and transmit the list of ranked finalists to the Approving Body. No person or firm, including applicants' listed consultants, debarred pursuant to M.G.L. c. 149, § 44C, shall be included as a finalist on the list. The list must be accompanied by a written explanation of the reasons for selection including the recorded vote, if any. The written explanation and recorded vote, if any, shall be public records and shall be maintained in the contract file. 12. If the fee was set prior to the selection process, the Approving Body shall select a designer from the list of finalists. If the Approving Body selects a designer other than the one ranked first by the Committee, the Approving Body shall file a written justification for the selection with the Committee and maintain a copy in the contract file. 13. If the fee is to be negotiated, the Approving Body shall review the list of finalists and may exclude any designer from the list if a written explanation of the exclusion is filed with the Committee and maintained in the contract file. The Approving Body shall request a fee proposal from the first ranked designer remaining on the list and begin contract negotiations. If the Approving Body is unable to negotiate a satisfactory fee with the first ranked designer, negotiations shall be terminated and undertaken with the ---PAGE BREAK--- remaining designers, one at a time, in the order in which they were ranked by the Committee until agreement is reached. In no event may a fee be negotiated which is higher than the maximum fee set by the Approving Body prior to selection of finalists. 14. If the Approving Body is unable to negotiate a satisfactory fee with any of the finalists, the Approving Body shall recommend that the Committee select additional finalists. 15. The Approving Authority may allow a designer who conducted a feasibility study to continue with the design of a project. However, the Approving Authority may commission, at its discretion, an independent review, by a knowledgeable and competent individual or business doing such work, of the feasibility of the designer's work to insure its reasonableness and its adequacy before allowing the designer to continue on the project, provided the Approving Authority otherwise complies with the statutory requirements for selecting a designer under Chapter 7C of the General Laws, including those set forth in M.G.L. c. 7C, § 54(a)(i). 16. Every contract for design services shall include the following: a. certification that the 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; b. certification that no consultant to, or subcontractor for, the designer or construction manager has given, offered, or agreed to give any gift, contribution, or offer of employment to the 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 or construction manager; c. certification that no person, corporation, or other entity, other than a bona-fide full-time employee of the designer or construction manager, has been retained or hired by the designer or construction manager to solicit for or in any way assist the 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; d. certification that the designer has internal accounting controls as required by M.G.L. c. 30, § 39R(c), and that the designer has filed and will continue to file an audited financial statement as required by M.G.L. c. 30, § 39R(d); e. A requirement to provide energy system life-cycle cost estimates (which should be prepared during the preliminary design) as stipulated in MG.L. C.149, ss44M); f. All fees shall be stated in design contracts, and in any subsequent amendments thereto, as a total dollar amount. Contracts may provide for equitable adjustments in the event of changes in scope or services; and, g. The design contract shall state the fee as a total dollar amount. In no case may the designer's fee be determined as a percentage of construction cost. ---PAGE BREAK--- 17. The Awarding Authority shall not enter into a contract for design services unless the Awarding Authority or the designer has obtained professional liability insurance covering negligent errors, omissions, and acts of the designer or of any person or business entity for whose performance the 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 one million dollars or ten percent of the project's estimated cost of construction, or such larger amounts as the Awarding Authority may require, for the applicable period of limitations. A designer required by the Awarding Authority to obtain all or a portion of such insurance coverage at its own expense shall furnish a certificate or certificates of insurance coverage to the Awarding Authority prior to the award of the contract. 18. Every contract for design services shall include a provision that the designer or its consultants 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 in the preparation of the bid documents, as reasonably determined by the individual responsible for administering the design contract. 19. In the event of an emergency that precludes the normal use of these designer selection procedures, the Approving Body may elect to authorize expedited procedures to address the emergency (see Section 30 below). The Approving Body shall document in writing the reasons for the emergency declaration, the proposed scope of work, the estimated cost of construction, the established fee for the needed design services, and any other relevant information. 20. The Awarding Authority shall publish the name of any designer awarded a contract in the Central Register. 21. The following records shall be kept by the Awarding Authority: a. all information supplied by or obtained about each applicant; b. all actions taken relating to the project; and c. any other records related to designer selection. All records shall be available for inspection by the state Designer Selection Board and other authorized agencies. 22. The Awarding Authority shall evaluate designers' performance on contracts using the Designer Selection Board evaluation form(s) in accordance with M.G.L. c. 7C, § 48(h), and file completed evaluations with the Board and any other agency named in M.G.L. c. 7C, § 48(h). 23. Nothing in these Procedures shall be interpreted to require the establishment of a board or waive or reduce the requirements of any other applicable law or regulation. 24. For any municipal design or construction project that includes funding provided by the Commonwealth, in whole or in part (such as reimbursements, grants and the like), the City must incorporate minority-owned business enterprise and women-owned business ---PAGE BREAK--- enterprise participation goals. If applicable, the Awarding Authority shall take steps to assure that it complies with all Massachusetts Supplier Diversity Office requirements. 25. No officer or board shall make any contract on behalf of the City, the execution of which will necessarily extend beyond three years from the date thereof unless special permission to do so has been given by vote of the City Council or by the statutes of the Commonwealth. (Salem Code of Ordinances, Chapter 2, Sec. 2-1688) 26. Officials and employees are prohibited from making or sharing in municipal contracts. (Salem City Charter, Section 27) 27. Any person contracting with a municipality must certify in writing that he or she has complied with State tax laws. (M.G.L. c. 62C, s49A) 28. The contract shall specifically list the names and time commitments of the key personnel included in the designer's proposal. Any change to the list of consultants in the contract must be approved in writing by the Approving Body or their delegate. 29. The contract shall have a provision giving ownership of any completed or partially completed design documents to the awarding authority even if the contract is terminated. 30. All contracts made by any department, board or commission where the amount involved is $5,000.00 dollars or more (or as might further be amended by City Council) shall be in writing. (Salem Code of Ordinances, Chapter 2, Section 2-1694) 31. Emergency Procedures a. The Approving Body may declare an emergency under the following circumstances: Whenever the health or safety of any persons will be endangered because of the time required for the selection of a designer, interior designer, programmer or construction manager by the procedures prescribed by M.G.L. Chapter 7C, sections 44 to 58, inclusive, or whenever a deadline for action is set on a project by any court or federal agency which cannot be met if those selection procedures are followed. b. The Approving Body may select a designer from 1. a pre-approved standing list of designers, or 2. as the approving body determines is in the best interest of the City. c. After the designer has been selected and awarded a contract, the Approving Body must file a memorandum with the Purchasing Agent, stating the reasons for the emergency declaration, listing proposed scope of work, estimated cost of construction, the established fee for designers' services, the reference to the standing contract or the list of designers solicited and any quotes received, and any other relevant information. 32. All meetings of a government body shall be subject to the Massachusetts’ Open Meeting Law. (M.G.L. c. 30A, §§18-25) ---PAGE BREAK--- 33. The Design Selection Committee and designers must comply with Massachusetts’ Conflict of Interest Laws. (M.G.L. c. 268A). 34. The Designer Selection Committee and designers must comply with all Salem Ordinances including Chapter 2, Article XVI Non-discrimination, which provides that actions that may deny or tend to deny to an individual equal access or opportunity in matters of housing, employment, education, municipal services, contracts, purchasing or public accommodations on the basis of: age, ancestry, color, disability, family status, gender identity or expression, military status, marital status, national origin, race, religion, sex or sexual orientation, are hereby prohibited. 35. Using full-time municipal employees to perform design services which fall within the scope of their normal duties is permissible and may be permitted by the Approving Body, provided the employees are qualified. The Approving Body should review and evaluate the employee qualifications for a particular project using similar criteria as would be applied to outside firms. This review and evaluation shall be conducted by the person or persons so designated by the Approving Body. Where the employee is found to be qualified, an open competition need not be conducted. 36. These procedures have been adopted to satisfy the purpose and intent of M.G.L. Chapter 7C, sections 44-58. Where interpretive questions or ambiguities arise, refer to the recommendations "Designing and Constructing Public Facilities, November 2016” or any update, issued by the Office of the Inspector General. The Attorney General is the chief law officer and her or his opinion takes precedence over previous interpretations by State agencies.