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City of Boston Municipal Code
CHAPTER IV: CONTRACTS
Section
4-1   DESIGNER SELECTION BOARD
   4-1.1   Definitions
   4-1.2   Membership Regulations and Procedures of the Board
   4-1.3   Failure to Comply With Regulations and Procedures
   4-1.4   Severability Clause
4-2   TO ENABLE CITY DEPARTMENTS TO GIVE PREFERENCE TO CITY FIRMS IN THE PURCHASE OF CERTAIN GOODS AND SERVICES
   4-2.1   Definition
   4-2.2   City Firms Bid; Mayor’s Permission Required to Award Contract
   4-2.3   Mayor to Refer to Committee
   4-2.4   Mayor to Notify Boston City Council; Time Required
4-3   TASK FORCE FOR IMPLEMENTATION
   4-3.1   Purpose
   4-3.2   Composition and Term
   4-3.3   Meetings
   4-3.4   Reporting
   4-3.5   Sunset Clause
4-4   PROMOTING MINORITY AND WOMEN OWNED BUSINESS ENTERPRISES IN THE CITY
   4-4.1   Findings
   4-4.2   Definitions
   4-4.31   Supplier Diversity Program
   4-4.32   Affirmative Marketing Policy
   4-4.33   RFP Policy
   4-4.4   Policy Implementation
   4-4.5   Compliance and Enforcement
   4-4.6   Data Collection
   4-4.7   Waiver
   4-4.8   Conformity with Existing Commonwealth and Federal Law
   4-4.9   Severability
   4-4.10   Effective Date
4-5   REQUIRING HARMONY IN CONSTRUCTION CONTRACTS
   4-5.1   Policy Statement
   4-5.2   Continuance of this Section Until Repealed
4-6   EMPLOYMENT AND COMPENSATION OF CONSULTANTS
   4-6.1   Definitions
   4-6.2   Replacement of Unionized Employees by Consultant or Contractor Contracts Prohibited
   4-6.3   Restriction on Hiring of Consultants to Supervise City Employees
   4-6.4   Effective Date
4-7   CORI SCREENING BY VENDORS OF THE CITY
   4-7.1   Purpose
   4-7.2   Definitions
   4-7.3   CORI-Related Standards of the City
   4-7.4   Waiver
   4-7.5   Data Collection and Report
   4-7.6   Applicability
   4-7.7   Regulatory Authority
   4-7.8   Severability
   4-7.9   Implementation
4-8   REQUIRING CITY VENDORS TO SAFEGUARD UNPROTECTED ROAD USERS
   4-8.1   Purpose
   4-8.2   Definitions
   4-8.3   Requirements for Large Vehicles
   4-8.4   Policy Implementation
   4-8.5   Technical Specifications for the Equipment of Lateral Protective Devices, Convex Mirrors and Convex Cross-over Mirrors and Safety Decals
   4-8.6   Compliance and Enforcement
   4-8.7   Waiver
   4-8.8   Conformity with Existing Commonwealth and Federal Law
   4-8.9   Severability
   4-8.10   Effective Date
4-9   REQUIRING CITY DEPARTMENTS AND VENDORS TO ADOPT GOOD FOOD PURCHASING STANDARDS
   4-9.1   Purpose
   4-9.2   Requirements for Departments and Agencies
   4-9.3   Transparency
   4-9.4   Community Advisory Council
   4-9.5   Reporting
   4-9.6   Severability
4-1   DESIGNER SELECTION BOARD.
4-1.1   Definitions.
   For the purpose of this Section, the following definitions shall apply unless the context clearly indicates or requires a different meaning.
   APPLICANT. Any person or entity applying to perform design services, the principal personnel responsible for the provision of such services for the project and the persons who will be the principal staff for the project.
   BOARD. The Designer Selection Board.
   CONSTRUCTION MANAGER. Any Designer or any other corporation, partnership, individual, sole proprietorship, joint stock company, joint venture or other entity engaged in the practice of construction management or construction scheduling.
   CONTINUED SERVICES. Authorization for a Designer who has been appointed for one stage of a project to act as the Designer for a succeeding stage or stages of the same project.
   DESIGN SERVICES. Any of the following services provided by any Designer, programmer or Construction Manager in connection with any public building project:
      (1)   Preparation of master plans, studies, surveys, soil tests, cost estimates or programs;
      (2)   Preparation of drawings, plans or specifications, including, but not limited to, schematic drawings, preliminary plans and specifications, working plans and specifications or other administration of construction contracts documents;
      (3)   Supervision or administration of a construction contract; or
      (4)   Construction management or scheduling.
   DESIGNER. An individual, corporation, partnership, sole proprietorship, joint stock company, joint venture or other entity engaged in the practice of architecture, landscape architecture or engineering, which satisfies the following:
      (1)   If an individual, the individual is a registered architect, landscape architect or engineer;
      (2)   If a partnership, a majority of all the partners are persons who are registered architects, landscape architects or engineers;
      (3)   If a corporation, sole proprietorship, joint stock company or other entity, the majority of Directors and the Chief Executive Officer are persons who are registered architects, landscape architects or engineers, and the person to have the project in his or her charge is registered in the discipline required for the project; and
      (4)   If a joint venture, each joint venturer satisfies the requirements of this Section.
   DIRECTOR. The Director of the Department of Administrative Services.
   EXTENDED SERVICES. Authorization for a Designer who has been appointed to provide design services for a project to act as Designer for work to be done on another project not originally included in that Designer’s contract.
   MAYOR. The Mayor or persons designated by him or her.
   PROGRAMMER. Any Designer or any other individual, corporation, partnership, sole proprietorship, joint stock company, joint venture or other entity engaged in the preparation of architecture facility programs or studies.
   USING AGENCY. A Department, Agency, Board, Commission, Authority or other instrumentality of the city.
(CBC 1981 c. 21 § 1; CBC 1985 4-1.1)
4-1.2   Membership Regulations and Procedures of the Board.
   (A)   Appointment of members; terms. There shall be located within the Administrative Services Department a Designer, Selection Board, consisting of five members. Four members shall be appointed by the Mayor within 60 days of the effective date of this Section, as follows: one from three candidates nominated by the Boston Society of Architects, one from three candidates nominated by the commonwealth’s Society of Professional Engineers, one from three candidates nominated by the Boston Municipal Research Bureau, one from three candidates nominated by the Boston Society of Civil Engineers and the Director of Administrative Services ex officio. The nominee of the Boston Society of Civil Engineers shall be appointed for a term of two years, of the Boston Municipal Research Bureau for a term of three years, of the commonwealth’s Society of Professional Engineers for a term of four years and of the Boston Society of Architects for a term of five years. As the term of any Commissioner expires, his or her successor shall be appointed for a term of five years. Vacancies in the Commission shall be filled for the unexpired term. The members of the Board shall serve without compensation. The Board shall elect each year one member to serve as the Chair. The Director of Administrative Services shall serve as the secretary thereof and shall keep all records of the Board. The Board shall not be subject to the supervision or control of the Administrative Services Board or any member thereof and shall, on or before the last Monday of January, 1982, and annually thereafter, make a report of its proceedings and votes to the City Council.
   (B)   Jurisdiction and duties. The Board shall have jurisdiction over the selection of all Designers, programmers and Construction Managers performing design services in connection with any building projects for all City Departments.
   (C)   Public notice.
      (1)   Each contract for Designer services for a project subject to the jurisdiction of the Board shall be publicly advertised by the Board in a newspaper of general circulation in the city, local minority papers and in such places as the Board requires by regulation, at least two weeks before the deadline for filing applications.
      (2)   The public notice required by the above shall contain:
         (a)   A description of the project, including the specific Designer services sought, the estimated construction cost and the time period within which the project is to be completed;
         (b)   If there is a program for the project, a statement of when and where the program will be available for inspection by applicants, and when and where a briefing session will be held for applicants, if one is required by the Board’s regulations and if there is not a program for the project, a statement to the effect;
         (c)   The qualification required of applicants for the projects; and
         (d)   The categories of Designers, consultants, if any, for which applicants must list the names of consultants which the applicant may choose to use;
         (e)   Whether the fee has been set or will be negotiated, and if the fee has been set, the amount of the fee.
   (D)   Filing of Designer’s statement. No Designer, Programmer or Construction Manager may file an application for any project subject to the Board’s jurisdiction unless having first filed with the Board a written statement containing the following information:
      (1)   Certification that the applicant legal entity, if applying to perform design services other than preparation of studies, surveys, soil testing, cost estimates or programs, is a Designer or Construction Manager;
      (2)   The names and addresses of all partners, if a partnership, of all Officers, Directors and all persons with an ownership interest of more than 5% in the applicant if not a partnership;
      (3)   The registration number and status of each such person in every jurisdiction in which such person has ever been registered as an architect, landscape architect or engineer;
      (4)   A list of all projects for all public Agencies within the commonwealth for which the applicant has performed or has entered into a contract to perform design services within the five-year period immediately preceding the filing of the information required in this Section;
      (5)   A list of all current projects for which the applicant is performing or is under contract to perform any design services; and
      (6)   If the applicant is a joint venture, the information required in this Section shall be required for each joint venturer, as well as for the joint venture itself.
   (E)   Statement required to be current. The Board shall keep a permanent record of the statements filed pursuant to this Section and shall require the statements to be made current on a regular basis, and that statements pursuant to divisions (D)(5) and (D)(6) above be current with each application filed.
   (F)   Statement of experience and qualifications. An applicant to perform design, programming or construction management services on a project may be required to file, in addition to the statement required under division (D) above, a written application as prescribed by the Board, relating to the applicant’s experience, ability and qualifications.
   (G)   Swearing to statements. Every application or statement filed pursuant to this Section shall be sworn to under penalties of perjury. A Designer, Programmer or Construction Manager who has been determined by the Board to have filed materially false information under this Section shall be disqualified by the Board from further consideration for any project for such time as the Board determines is appropriate.
   (H)   Board’s restriction in advertising. The Board shall not advertise for Designers nor select any finalists to perform any design services other than the preparation of master plans, studies, surveys, soil tests, cost estimates or programs unless the Director of Administrative Services certifies: That it is appropriate to do so and either that a program defining the design services required has been prepared, and has been approved by the Administrative Services, or that no program is required by the Administrative Services.
   (I)   Board to adopt written criteria. The Board shall adopt written applicants’ criteria for selection of semifinalists and finalists based upon information obtained under division (D) above for each project. The criteria shall include:
      (1)   Prior similar experience;
      (2)   Past performance on public and private projects;
      (3)   Financial stability;
      (4)   Identity and qualifications of the consultants who will work with the applicant on the project; and
      (5)   Any other criteria that the Board considers relevant for any project.
   (J)   Semifinalists. Semifinalists may be chosen for each project. The Board shall select at least three finalists from among all the applicants, or from the semifinalists selected under this Section, and in doing so may require all the applicants or the semifinalists to:
      (1)   Appear for an interview before the Board;
      (2)   Present a written proposal to the Board not including a fee quotation; or
      (3)   Participate in a design competition held by the Board.
   (K)   List of finalists. 
      (1)   The Board shall transmit a list of the chosen finalists to the Mayor. No person or firm disqualified pursuant to division (D) above, or debarred pursuant to M.G.L. Chapter 149, Section 44C, shall be so included as a finalist.
      (2)   The list shall rank the finalists in order of qualification and include a record of the final vote of the Board on the selection; and include a written statement explaining the Board’s reason for its choice and its ranking of the finalists.
   (L)   Disqualification of Board Member. For the purpose of this Section, and subject to the penalties therein, no member of the Board shall participate in the selection of a Designer as a finalist or semifinalist for any project if the member or any member of his or her immediate family has a direct or indirect financial interest in the award of the design contract to any applicant:
      (1)   Is currently or has ever been employed by, or is currently a consultant to or under contract to an applicant;
      (2)   Is negotiating or has an arrangement concerning future employment or contracting with any applicant; or
      (3)   Has an ownership interest in, or is an Officer or Director of any applicant.
   (M)   Fee set by city prior to selection of Designer. 
      (1)   In the selection of a Designer when the fee for design services has been set by the city prior to the selection process, the Mayor shall appoint a Designer from among the list transmitted to him or her under division (K) above. If the Mayor appoints any Designer other than the one ranked first by the Board, he or she shall file a written justification of the appointment with the Board.
      (2)   When the fee for design services is to be negotiated, the Mayor shall review the list transmitted by the Board, and may exclude any Designer from the list if a written explanation is filed with the Board. The Mayor shall then appoint a Designer based on a successful fee negotiation. The Mayor or persons designated by him or her shall first negotiate with the first-ranked Designer remaining on the list. Should the Mayor be unable to negotiate a satisfactory fee with the first-ranked Designer within 30 days, negotiations shall be terminated and negotiations undertaken with the remaining Designers, one 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 city prior to selection of finalists. Should the Mayor be unable to negotiate a satisfactory fee with any Designer initially selected as a finalist by the Board, the Board shall recommend additional finalists in accordance with the provisions of this Section. The Mayor may require a finalist with whom a fee is being negotiated to submit a fee proposal and include with it such information as the Mayor requires to provide current cost and pricing data on the basis of which the Designer’s fee proposal may be evaluated.
   (N)   Statement of fees in contract. All fees shall be stated in Designer’s contracts and in any subsequent amendment thereto as a total dollar amount. Contracts may provide for equitable adjustments in the event of changes in scope or services.
   (O)   List of consultants used by applicants. When the Board has required that applicants list consultants which the applicants may employ, in no event shall a consultant be used who is debarred pursuant to M.G.L. Chapter 149, Section 44C, as amended, and any change in or addition to the consultants named in the application and allowed by the Board upon appointment must be approved by the Mayor and reported to the Board, along with a written statement by the Designer or Construction Manager of the reasons for the change.
   (P)   Truth-in-negotiations certificate. If the Designer’s or Construction Manager’s fee is negotiated, the Designer or Construction Manager must file a truth-in-negotiations certificate prior to being awarded the contract by the Mayor, which must be incorporated into the contract. The certificate must contain:
      (1)   A statement that the wage rates and other costs used to support the Designer’s compensation are accurate, complete and current at the time of contracting; and
      (2)   An agreement that the original contract price and any additions to the contract may be adjusted within one year of completion of the contract to exclude any significant amounts if the Mayor determines that the fee was increased by such amounts due to inaccurate, incomplete or noncurrent wage rates or other costs.
   (Q)   Special conditions. The Board may specify other special conditions or requirements in selecting a particular applicant as a finalist. If any change is made by the applicant after appointment relating to such special conditions or requirements, the change must be approved by the Mayor and reported to the Board along with a written statement by the appointee of the reasons for the change.
   (R)   Eligibility. A Designer or programmer appointed to do a feasibility study, master plan or program for a project shall be ineligible for appointment to perform the design services for that project.
   (S)   Gifts and contributions prohibited. Every contract for design services awarded under this Section shall include the following:
      (1)   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;
      (2)   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; and
      (3)   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 consideration contingent upon the award of the contract to the Designer.
   (T)   Liability insurance. 
      (1)   Contracts for design services shall include a requirement that the Designer at his or her own expense obtain and maintain a professional liability insurance policy 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 such contracts for design services. The Designer shall furnish a certificate or certificates of such insurance coverage to the city prior to the award of the contract. A professional liability insurance policy obtained and maintained pursuant to this division (T) shall provide for coverage in an adequate amount for the applicable period of limitations and include any added coverage and in such amounts as the city shall require.
      (2)   At the request of the city, a consultant employed by a Designer subject to this division (T) 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 of consultant services.
   (U)   Disqualification for false statements. A 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.
   (V)   Appointment for continuous or extended service. The Mayor may appoint a Designer to perform continued or extended services if the following conditions are met:
      (1)   A written statement is filed with the Board explaining the reasons for the continuation or extension of services;
      (2)   The program for the design services is filed with the Board if one is required by the regulations of the using Agency; and
      (3)   The Board approves the appointment of the Designer for continued or extended services and states the reasons therefor.
   (W)   Use of expedited procedures. Whenever the Mayor shall declare that the health or safety of any persons will be endangered because of the time required for the selection of a Designer, programmer or Construction Manager by the procedures prescribed in this Section 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. Finalist selection may be made by the Board by expedited procedures adopted by regulation by the Board.
   (X)   Contracts under $10,000. Every contract for design services for any building construction, reconstruction, alteration, remodeling or repair estimated not to exceed $10,000 by the city, thereof, shall be awarded complying with the purposes and intent of this Section, and the following requirements:
      (1)   The establishment by using Agency of uniform requirements of information to be submitted by all applicants, a uniform procedure for the evaluation of all applications to a group of no fewer than three finalists and the opportunity to be afforded equally to all finalists to provide additional information to or appear before the selection body;
      (2)   A written explanation of the reasons for selection including the recorded vote, if any was taken, be made public and recorded with the Designer Selection Board prior to the notification of award;
      (3)   The provisions of this Section regarding the designation of fees in the contract; and
      (4)   Provided, however, that nothing in this Section shall be interpreted to require the establishment of a Board or waive or reduce the requirements of any other applicable law or regulation.
   (Y)   Adoption of procedures. The Board shall independently adopt procedures and regulations as necessary to implement expeditiously the requirement of this Section.
(Ord. 1981 c. 21 § 2; CBC 1985 4-1.2)
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