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DOCUMENT 00 7373
STATUTORY REQUIREMENTS
STATUTORY PROVISIONS FOR MASSACHUSETTS PUBLIC CONSTRUCTION CONTRACTS
ARTICLE 1 - PAYMENT AND CONTRACT ADMINISTRATION
Paragraph Subject Statute or Executive Order
1.1 "Or Equal" Clause M.G.L. c.30, §39M(b)
1.2 Delays M.G.L. c.30, §390
1.3 Deviations M.G.L. c.30, §39I
1.4 Finality of Decisions M.G.L. c.30, §39J
1.5 Differing Site Conditions M.G.L. c.30, §39N
1.6 Timely Decisions M.G.L. c.30, §39P
1.7 Certificate of Appropriation M.G.L. c.44, §31C
1.8 Method of Payment M.G.L. c.30, §39K
1.9 Direct Payment M.G.L. c.30, §39F
ARTICLE 2 - WAGES AND EMPLOYMENT PRACTICES
Paragraph Subject Statute or Executive Order
2.1 Preference to Veterans and M.G.L. c.149, §26
Citizens; Rate of Wages
2.2 Determination of Wage Rates M.G.L. c.149, §27
2.3 Employment Records M.G.L. c.149, §27B
2.4 Wages Paid to Operators of M.G.L. c.149, §27F
Trucks and Other Equipment
2.5 Reserve Officers M.G.L. c.149, §34B
2.6 Eight-Hour Day M.G.L. c.149, §§30 and 34
2.7 Lodging M.G.L. c.149, §25
2.8 Access to Contractor's Records Executive Order No. 195
2.9 Worker's Compensation Insurance M.G.L. c.149, §34A
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ARTICLE 3 - EQUAL EMPLOYMENT OPPORTUNITY, NON-DISCRIMINATION AND
AFFIRMATIVE
ACTION PROGRAM, MBE/WBE PARTICIPATION
Paragraph Subject Statute or Executive Order
3.1 Compliance, Generally M.G.L. c.151B, Executive Order No. 526
3.2 Non-Discrimination and Affirmative Action M.G.L. c.151B, Executive Order No. 526
3.3 Liaison Committee, Reports and Records M.G.L. c.151B, Executive Order No. 526
3.4 Sanctions M.G.L. c.151B, Executive Order No. 526
3.5 MBE/WBE Participation M.G.L. c.7, §4 Executive Order No. 390
ARTICLE 4 - CONTRACTOR'S ACCOUNTING METHOD REQUIREMENTS
Paragraph Subject Statute or Executive Order
4.1 Definitions M.G.L. c.30, c.149 and c.7
4.2 Books, Records, and Accounts M.G.L. c.30, c.149 and c.7
4.3 Management Statement M.G.L. c.30, c.149 and c.7
4.4 CPA Examination Statement M.G.L. c.30, c.149 and c.7
4.5 Annual Financial Statement M.G.L. c.30, c.149 and c.7
ARTICLE 5 - MISCELLANEOUS STATUTES
Paragraph Subject Statute or Executive Order
5.1 Weather Protection M.G.L. c.149, §44F (1)
5.2 Form for Sub-Contract M.G.L. c.149, §44F
5.3 Foreign Corporation M.G.L. c.30, §39 L
5.4 Shoring M.G.L. c.149, §129A
5.5 Compliance with Tax Laws M.G.L. c.62C, §49A
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STATUTORY PROVISIONS FOR
MASSACHUSETTS PUBLIC CONSTRUCTION CONTRACTS
The following provisions are required by or are intended to be consistent with requirements of
Massachusetts statutes governing public construction contracts in the Commonwealth of Massachusetts
(hereinafter referred to as the "Commonwealth"). Any other provisions required by statute to be included
herein shall be deemed to be so included. In addition, the parties recognize that other rights, duties, and
obligations with respect to public construction contracts are provided for by statute, notwithstanding the
fact that they are not provided for in the Contract Documents. In case of conflict between the provisions
of these Statutory Provisions for Massachusetts Public Construction Contracts and other provisions in the
Contract Documents, the provisions of these Statutory Provisions for Massachusetts Public Construction
Contracts shall govern. In case of conflict between the provisions of these Statutory Provisions for
Massachusetts Public Construction Contracts and the provisions of any applicable statute, the statutory
provisions shall govern. Wherever the term "Awarding Authority" appears in this Document, it shall be
understood to mean the Owner, as identified in the Agreement.
ARTICLE 1 - PAYMENT AND CONTRACT ADMINISTRATION
1.1 "Or Equal" Clause: (Statutory reference M.G.L. c.30, §39M (b)) This paragraph applies to
every contract for the construction, reconstruction, alteration, remodeling or repair of any
public work, or for the purchase of any material by the Commonwealth, or political subdivision
thereof, or by any county, city, town, district or housing authority (above certain dollar limits,
as stated in the statute), and to contracts awarded pursuant to M.G.L. c.149, §§44A through
44H. The said §§44A through 44H apply to every contract for the construction,
reconstruction, installation, demolition, maintenance or repair of any building by a
department, agency, board, commission, authority, or other instrumentality of the
Commonwealth or political subdivision thereof, or two or more subdivisions thereof, but not
including the Massachusetts Bay Transportation Authority, estimated to cost more than a
dollar amount set forth in M.G.L. c.149, §44A.
Where products or materials are prescribed by manufacturer name, trade name, or
catalog reference, the words "or approved equal" shall be understood to follow. An
item shall be considered equal to the item so named or described if, in the opinion of
the Architect:
(a) it is at least equal in quality, durability, appearance, strength and design;
(b) it performs at least equally the function imposed by the general design for the
work;
(c) it conforms substantially, even with deviations, to the detailed requirements for
the items as indicated by the specifications.
Any structural or mechanical changes made necessary to accommodate substituted
equipment under this paragraph shall be at the expense of the Contractor or
Subcontractor responsible for the work item. See other paragraphs of General and
Supplementary Conditions for procedures to be used in determining compliance with
the standards of this paragraph.
1.2 Delays: (Statutory reference c.30, §39O) This paragraph applies to every contract subject to
M.G.L. c.30, §39M and to every contract subject to c.149, §§44A through 44H.
Except as otherwise provided by law and by this Paragraph 1.2, the Contractor shall
not be entitled to damages on account of any hindrances or delays, avoidable or
unavoidable; but if such delay be occasioned by the awarding authority, the
Contractor may be entitled to an extension of time only, in which to complete the
work, to be determined by the Architect.
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(a) The awarding authority may order the Contractor in writing to suspend, delay,
or interrupt all or any part of the work for such a period of time as it may
determine to be appropriate for the convenience of the awarding authority;
provided, however, that if there is a suspension, delay or interruption for fifteen
days or more or due to a failure of the awarding authority to act within the time
specified in this contract, the awarding authority shall make an adjustment in
the contract price for any increase in the cost of performance of this contract
but shall not include any profit to the Contractor on such increase; and
provided further, that the awarding authority shall not make any adjustment in
the contract price under this provision for any suspension, delay, interruption or
failure to act to the extent that such is due to any cause for which this contract
provides for an equitable adjustment of the contract price under any other
contract provisions.
(b) The Contractor must submit the amount of a claim under provision (a) to the
awarding authority in writing as soon as practicable after the end of the
suspension, delay, interruption or failure to act and, in any event, not later than
the date of final payment under this contract and, except for costs due to a
suspension order, the awarding authority shall not approve any costs in the
claim incurred more than twenty days before the Contractor notified the
awarding authority in writing of the act or failure to act involved in the claim.
In the event a suspension, delay, interruption or failure to act of the awarding
authority increases the cost of performance to any Subcontractor, that Subcontractor
shall have the same rights against the Contractor for payment for an increase in the
cost of his performance as provisions (a) and (b) give the Contractor against the
awarding authority, but nothing in provisions (a) and (b) shall in any way change,
modify or alter any other rights which the Contractor or the Subcontractor may have
against each other.
1.3 Deviations. (Statutory reference M.G.L. c.30, §39I) This Paragraph applies to every contract
for the construction, alteration, maintenance, repair or demolition of, or addition to, any public
building or public works for the Commonwealth or any political subdivision thereof.
The Contractor shall perform all the work required by this contract in conformity with
the plans and specifications contained herein. No willful and substantial deviation
from said plans and specifications shall be made unless authorized in writing by the
awarding authority or by the Engineer or Architect in charge of the work who is duly
authorized by the awarding authority to approve such deviations. In order to avoid
delays in the prosecution of the work required by such contract such deviation from
the plans or specifications may be authorized by a written order of the awarding
authority or such Engineer or Architect so authorized to approve such deviation.
Within thirty days thereafter, such written order shall be confirmed by a certificate of
the awarding authority stating: (1) If such deviation involves any substitution or
elimination of materials, fixtures or equipment, the reasons why such materials,
fixtures or equipment were included in the first instance and the reasons for
substitution or elimination, and, if the deviation is of any other nature, the reasons for
such deviation, giving justification therefor; (2) that the specified deviation does not
materially injure the project as a whole; (3) that either the work substituted for the
work specified is of the same cost and quality, or that an equitable adjustment has
been agreed upon between the awarding authority and the Contractor and the
amount in dollars of said adjustment; and (4) that the deviation is in the best interest
of the awarding authority.
Such certificates shall be signed under the penalties of perjury and shall be a
permanent part of the file record of the work contracted for.
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1.4 Finality of Decisions by Awarding Authority or Architect: (Statutory reference M.G.L. c.30,
§39J) This paragraph applies to every contract for the construction, reconstruction,
alteration, remodeling, repair or demolition of any public building or public works by the
Commonwealth or by any county, city, town, district, board, commission, or other public body,
when the amount of the contract exceeds the amount stated in M.G.L. c.30, §39J.
Notwithstanding any contrary provision of this contract, no decision by the awarding
authority or by the Architect on a dispute, whether of fact or of law, arising under said
contract shall be final or conclusive if such decision is made in bad faith, fraudulently,
capriciously, or arbitrarily, is unsupported by substantial evidence, or is based upon
error of law.
1.5 Differing Site Conditions: (Statutory reference M.G.L. c.30, §39N) This Paragraph applies to
every contract subject to M.G.L. c.30, §39M and to every contract subject to M.G.L. c.149,
§§44A through 44H.
If, during the progress of the work, the Contractor or the awarding authority discovers
that the actual subsurface or latent physical conditions encountered at the site differ
substantially or materially from those shown on the plans or indicated in the Contract
Documents, either the Contractor or the awarding authority may request an equitable
adjustment in the contract price of the contract applying to work affected by the
differing site conditions. A request for such an adjustment shall be in writing and
shall be delivered by the party making such claim to the other party as soon as
possible after such conditions are discovered. Upon receipt of such a claim from a
Contractor, or upon its own initiative, the awarding authority shall make an
investigation of such physical conditions, and, if they differ substantially or materially
from those ordinarily encountered and generally recognized as inherent in work of
the character provided for in the plans and Contract Documents and are of such a
nature as to cause an increase or decrease in the cost of performance of the work or
a change in the construction methods required for the performance of the work which
results in an increase or decrease in the cost of the work, the awarding authority shall
make an equitable adjustment in the contract price and the contract shall be modified
in writing accordingly.
1.6 Timely Decision by Awarding Authority: (Statutory reference M.G.L. c.30, §39P) This
Paragraph applies to every contract subject to M.G.L. c.30, §39M, and to every contract
subject to M.G.L. c.149, §§44A through 44H.
In every case in which this contract requires the awarding authority, any official, its
Architect or Engineer to make a decision on interpretation of the specifications,
approval of equipment, material or any other approval, or progress of the work, the
decision shall be made promptly and, in any event, no later than thirty days after the
written submission for decision; but if such decision requires extended investigation
and study, the awarding authority, the official, Architect or Engineer shall, within thirty
days after the receipt of the submission, give the party making the submission written
notice of the reasons why the decision cannot be made within the thirty-day period
and the date by which the decision will be made.
1.7 Certificate of Appropriation: (Statutory reference: M.G.L. c.44, §31C) This paragraph 1.7
applies to contracts for construction, reconstruction, alteration, remodeling, repair or
demolition of any public building or public work by any city or town costing more than the
amount set forth in M.G.L. c.44, §31C.
This contract shall not be deemed to have been made until the auditor or accountant
or other officer of the city or town having similar duties has certified thereon that an
appropriation in the amount of this contract is available therefor and that an officer or
agent of the city, town, or awarding authority has been authorized to execute said
contract and approve all requisitions and change orders. No order to the Contractor
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for a change in or addition to the work, whether in the form of a drawing, plan, detail,
or any other written instruction, unless it is an order which the Contractor is willing to
perform without any increase in the contract price, shall be deemed to be given until
the auditor or accountant, or other officer of the awarding authority having similar
duties, has certified thereon that an appropriation in the amount of such order is
available therefore; but such certificate shall not be construed as an admission by the
awarding authority of its liability to pay for such work. The certificate of the auditor or
accountant or other officer of the awarding authority having similar duties, that an
appropriation in the amount of this contract or in the amount of such order is
available shall bar any defense by the awarding authority on the grounds of
insufficient appropriation.
1.8 Method of Payment: (Statutory reference: M.G.L. c.30, §39K) This paragraph 1.8 applies to
every contract for the construction, reconstruction, alteration, remodeling, repair or demolition
of any public building by the Commonwealth, or by any county, city, town, district, board,
commission or other public body, when the amount of the contract exceeds the amount
stated in M.G.L. c.30, §39K.
1.8.1 Within fifteen days (twenty-four days in the case of the Commonwealth) after receipt
from the Contractor, at the place designated by the awarding authority if such a place
is so designated, of a periodic estimate requesting payment of the amount due for
the preceding month, the awarding authority will make a periodic payment to the
Contractor for the work performed during the preceding month and for the materials
not incorporated in the work but delivered and suitably stored at the site (or some
location agreed upon in writing) to which the Contractor has title or to which a
Subcontractor has title and has authorized the Contractor to transfer title to the
awarding authority, less (1) a retention based on its estimate of the fair value of its
claims against the Contractor and less (2) a retention for direct payments to
Subcontractors based on demands for the same in accordance with the provisions of
Paragraph 1.9 of these Supplementary General Conditions, and less (3) a retention
not exceeding five percent of the approved amount of the periodic payment. After
the receipt of a periodic estimate requesting final payment and within sixty-five days
after (a) the Contractor fully completes the work or substantially completes the work
so that the value of the work remaining to be done is, in the estimate of the awarding
authority, less than one percent of the original contract price, or (b) the Contractor
substantially completes the work and the awarding authority takes possession for
occupancy, whichever occurs first, the awarding authority shall pay the Contractor
the entire balance due on the contract less (1) a retention based on its estimate of
the fair value of its claims against the Contractor and the cost of completing the
incomplete and unsatisfactory items of work and less (2) a retention for direct
payments to Subcontractors based on demands for same in accordance with the
provisions of Paragraph 1.9 of these Supplementary General Conditions, or based
on the record of payments by the Contractor to the Subcontractors under this
contract if such record of payment indicates that the Contractor has not paid
Subcontractors as provided in Paragraph 1.9. If the awarding authority fails to make
payment as herein provided, there shall be added to each such payment daily
interest at the rate of three percentage points above the rediscount rate then charged
by the Federal Reserve Bank of Boston commencing on the first day after said
payment is due and continuing until the payment is delivered or mailed to the
Contractor; provided, that no interest shall be due, in any event, on the amount due
on a periodic estimate for final payment until fifteen days (twenty-four days in the
case of the Commonwealth) after receipt of such periodic estimate from the
Contractor, at the place designated by the awarding authority if such a place is so
designated. The Contractor agrees to pay to each Subcontractor a portion of any
such interest paid in accordance with the amount due each Subcontractor.
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1.8.2 The awarding authority may make changes in any periodic estimate submitted by the
Contractor, and the payment due on said periodic estimate shall be computed in
accordance with the changes so made, but such changes or any requirements for a
corrected periodic estimate shall not affect the due date for the periodic payment or
the date for the commencement of interest charges on the amount of the periodic
payment computed in accordance with the changes made, as provided herein;
provided, that the awarding authority may, within seven days after receipt, return to
the Contractor for correction, any periodic estimate which is not in the required form
or which contains computations not arithmetically correct and, in that event, the date
of receipt of such periodic estimate shall be the date of receipt of the corrected
periodic estimate in proper form and with arithmetically correct computations. The
date of receipt of a periodic estimate received on a Saturday shall be the first working
day thereafter.
1.8.3 All periodic estimates shall be submitted to the awarding authority, or to its designee
as set forth in writing to the Contractor, and the date of receipt by the awarding
authority or its designee shall be marked on the estimate. All periodic estimates shall
contain a separate item for each filed subtrade and each sub-subtrade listed in sub-
bid form as required by specifications and a column listing the amount paid to each
subcontractor and sub-subcontractor as of the date the periodic estimate is filed.
The person making payment for the awarding authority shall add the daily interest
provided for herein to each payment for each day beyond the due date based on the
date of receipt marked on the estimate.
1.8.4 A certificate of the Architect to the effect that the Contractor has fully or substantially
completed the work shall, subject to the provisions of Paragraph 1.4 of these
Supplementary General Conditions, be conclusive for the purposes of this Paragraph
1.8.
1.8.5 Notwithstanding the provisions of M.G.L. c.30, §39K, at any time after the value of
the work remaining to be done is, in the estimation of the awarding authority, less
than 1 per cent of the adjusted contract price, or the awarding authority has
determined that the contractor has substantially completed the work and the
awarding authority has taken possession for occupancy, the awarding authority may
send to the general contractor by certified mail, return receipt requested, a complete
and final list of all incomplete and unsatisfactory work items, including for each item
on the list, a good faith estimate of the fair and reasonable cost of completing such
item. The general contractor shall then complete all such work items, within 30 days
of receipt of such list or before the contract completion date, whichever is later. If the
general contractor fails to complete all incomplete and unsatisfactory work items
within 45 days after receipt of such items furnished by the awarding authority or
before the contract completion date, whichever is later, subsequent to an additional
14 days’ written notice to the general contractor by certified mail, return receipt
requested, the awarding authority may terminate the contract and complete the
incomplete and unsatisfactory work items and charge the cost of same to the general
contractor and such termination shall be without prejudice to any other rights or
remedies the awarding authority may have under the contract. The awarding
authority shall note any such termination in the evaluation form to be filed by the
awarding authority pursuant to the provisions of Section 44D of Chapter 149.
1.9 Direct Payment: (Statutory reference M.G.L. c.30, §39F) This Paragraph applies to every
contract awarded pursuant to M.G.L. c.149, §§44A through 44H, and (with the exception of
Subparagraph 1.9.9) to every contract awarded pursuant to M.G.L. c.30, §39M.
1.9.1 Forthwith after the Contractor receives payment on account of a periodic estimate,
the Contractor shall pay to each Subcontractor the amount paid for the labor
performed and the materials furnished by that Subcontractor, less any amount
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specified in any court proceedings barring such payment and also less any amount
claimed due from the Subcontractor by the Contractor.
1.9.2 Not later than the sixty-fifth day after each Subcontractor substantially completes his
work in accordance with the plans and specifications, the entire balance due under
the subcontract, less amounts retained by the awarding authority as the estimated
cost of completing the incomplete and unsatisfactory items of work, shall be due the
Subcontractor; and the awarding authority shall pay that amount to the Contractor.
The Contractor shall forthwith pay to the Subcontractor the full amount received from
the awarding authority less any amount specified in any court proceedings barring
such payment and also less any amount claimed due from the Subcontractor by the
Contractor.
1.9.3 Each payment made by the awarding authority to the Contractor pursuant to
Subparagraphs 1.9.1 and 1.9.2 of this Paragraph 1.9 for the labor performed and the
materials furnished by a Subcontractor shall be made to the Contractor for the
account of that Subcontractor; and the awarding authority shall take reasonable
steps to compel the Contractor to make each such payment to each such
Subcontractor. If the awarding authority has received a demand for direct payment
from a Subcontractor for any amount which has already been included in a payment
to the Contractor or which is to be included in a payment to the Contractor for
payment to the Subcontractor as provided in Subparagraphs 1.9.1 and 1.9.2, the
awarding authority shall act upon the demand as provided in this Paragraph 1.9.
1.9.4 If, within seventy days after the Subcontractor has substantially completed the
subcontract work, the Subcontractor has not received from the Contractor the
balance due under the subcontract including any amount due for extra labor and
materials furnished to the Contractor, less any amount retained by the awarding
authority as the estimated cost of completing the incomplete and unsatisfactory items
of work, the Subcontractor may demand direct payment of that balance from the
awarding authority. The demand shall be by a sworn statement delivered to or sent
by certified mail to the awarding authority, and a copy shall be delivered to or sent by
certified mail to the Contractor at the same time. The demand shall contain a
detailed breakdown of the balance due under the subcontract and also a statement
of the status of completion of the subcontract work. Any demand made after
substantial completion of the subcontract work shall be valid even if delivered or
mailed prior to the seventieth day after the Subcontractor has substantially completed
the subcontract work. Within ten days after the Subcontractor has delivered or so
mailed the demand to the awarding authority and delivered or so mailed a copy to the
Contractor, the Contractor may reply to the demand. The reply shall be by a sworn
statement delivered to or sent by certified mail to the awarding authority, and a copy
shall be delivered to or sent by certified mail to the Subcontractor at the same time.
The reply shall contain a detailed breakdown of the balance due under the
subcontract, including any amount due for extra labor and materials furnished to the
Contractor and of the amount due for each claim made by the Contractor against the
Subcontractor.
1.9.5 Within fifteen days after receipt of the demand by the awarding authority, but in no
event prior to the seventieth day after substantial completion of the subcontract work,
the awarding authority shall make direct payment to the Subcontractor of the balance
due under the subcontract, including any amount due for extra labor and materials
furnished to the Contractor, less any amount (i) retained by the awarding authority as
the estimated cost of completing the incomplete or unsatisfactory items of work, (ii)
specified in any court proceedings barring such payment, or (iii) disputed by the
Contractor in the sworn reply; provided that the awarding authority shall not deduct
from a direct payment any amount as provided in part (iii) if the reply is not sworn to,
or for which the sworn reply does not contain the detailed breakdown required by
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Subparagraph 1.9.4. The awarding authority shall make further direct payments to
the Subcontractor forthwith after the removal of the basis for deductions from direct
payments made as provided in parts (i) and (ii) of this Subparagraph.
1.9.6 The awarding authority shall forthwith deposit the amount deducted from a direct
payment as provided in part (iii) of Subparagraph 1.9.5 in an interest-bearing joint
account in the names of the Contractor and the Subcontractor in a bank in
Massachusetts selected by the awarding authority or agreed upon by the Contractor
and the Subcontractor and shall notify the Contractor and the Subcontractor of the
date of the deposit and the bank receiving the deposit. The bank shall pay the
amount in the account, including accrued interest, as provided in an agreement
between the Contractor and the Subcontractor or as determined by decree of a court
of competent jurisdiction.
1.9.7 All direct payments and all deductions from demands for direct payments deposited
in an interest- bearing account or accounts in a bank pursuant to Subparagraph 1.9.6
shall be made out of amounts payable to the Contractor at the time of receipt of a
demand for direct payment from a Subcontractor and out of amounts which later
become payable to the Contractor and in the order of receipt of such demands from
subcontractors. All direct payments shall discharge the obligation of the awarding
authority to the Contractor to the extent of such payment.
1.9.8 The awarding authority shall deduct from payments to a Contractor amounts which,
together with the deposits in interest-bearing accounts pursuant to Subparagraph
1.9.6, are sufficient to satisfy all unpaid balances of demands for direct payment
received from Subcontractors. All such amounts shall be earmarked for such direct
payments, and the Subcontractors shall have a right in such deductions prior to any
claims against such amounts by creditors of the Contractor.
1.9.9 If the Subcontractor does not receive payment as provided in Subparagraph 1.9.1 or
if the Contractor does not submit a periodic estimate for the value of the labor or
materials performed or furnished by the Subcontractor and the Subcontractor does
not receive payment for the same when due less the deductions provided for in
Subparagraph 1.9.1, the Subcontractor may demand direct payment by following the
procedure in Subparagraph 1.9.4 and the Contractor may file a sworn reply as
provided in that same Subparagraph. A demand made after the first day of the
month following that for which the Subcontractor performed or furnished the labor
and materials for which the Subcontractor seeks payment shall be valid even if
delivered or mailed prior to the time payment was due on a periodic estimate from the
Contractor. Thereafter the awarding authority shall proceed as provided in
Subparagraphs 1.9.5, 1.9.6, 1.9.7 and 1.9.8.
1.9.10 Any assignment by a Subcontractor of the rights under this section to a surety
company furnishing a bond under the provisions of M.G.L. c.149, §29 shall be invalid.
The assignment and subrogation rights of the surety to amounts included in a
demand for direct payment which are in the possession of the awarding authority or
which are on deposit pursuant to Subparagraph 1.9.6 shall be subordinate to the
rights of all Subcontractors who are entitled to be paid under this section and who
have not been paid in full.
1.9.11 "Subcontractor" as used in this Paragraph 1.9, (i) for contracts awarded as provided
in M.G.L. c.149, §§44A-44H, inclusive, shall mean a person who files a sub-bid and
receives a subcontract as a result of that filed sub-bid or who is approved by the
awarding authority in writing as a person performing labor or both performing labor
and furnishing materials pursuant to a contract with the Contractor, (ii) for contracts
awarded as provided in M.G.L. c.30, §39M, paragraph (a) shall mean a person
approved by the awarding authority in writing as a person performing labor or both
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performing labor and furnishing materials pursuant to a contract with the general
contractor, and (iii) for contracts with the Commonwealth not awarded as provided in
M.G.L. c.149, §§44A-44H, inclusive, shall also mean a person contracting with the
Contractor to supply materials used or employed in a public works project for a price
in excess of the amount stated in M.G.L. c.30, §39F.
1.9.12 A Contractor or a Subcontractor shall enforce a claim to any portion of the amount of
a demand for direct payment deposited as provided in Subparagraph 1.9.6 by a
petition in equity in the superior court against the other and the bank shall not be a
necessary party. A Subcontractor shall enforce a claim for direct payment or a right
to require a deposit as provided in Subparagraph 1.9.6 by a petition in equity in the
superior court against the awarding authority and the Contractor shall not be a
necessary party. Upon motion of any party the court shall advance for speedy trail
any petition filed as provided in this paragraph. M.G.L. c.231, §§59 and 59B shall
apply to such petitions. The court shall enter an interlocutory decree upon which
execution shall issue for any part of a claim found due pursuant to M.G.L. c.231,
§§59 and 59B and, upon motion of any party, shall advance for speedy trail the
petition to collect the remainder of the claim. Any party aggrieved by such
interlocutory decree shall have the right to appeal therefrom as from a final decree.
The court shall not consolidate for trail the petition of any Subcontractor with the
petition of one or more Subcontractors or the same general contract unless the court
finds that a substantial portion of the evidence of the same events during the course
of construction (other than the fact that the claims sought to be consolidated arise
under the same general contract) is applicable to the petitions sought to be
consolidated and that such consolidation will prevent unnecessary duplication of
evidence. A decree in any such proceeding shall not include interest on the disputed
amount deposited in excess of the interest earned for the period of any such deposit.
No person except a Subcontractor filing a demand for direct payment for which no
funds due the Contractor are available for direct payment shall have a right to file a
petition in a court of equity against the awarding authority claiming a demand for
direct payment is premature, and such Subcontractor must file the petition before the
awarding authority has made a direct payment to the Subcontractor and has made a
deposit of the disputed portion as provided in part (iii) of Subparagraph 1.9.5 and in
Subparagraph 1.9.6.
1.9.13 In any petition to collect any claim for which a subcontractor has filed a demand for
direct payment the court shall, upon motion of the Contractor, reduce by the amount
of any deposit of a disputed amount by the awarding authority as provided in part (iii)
of Subparagraph 1.9.5 and in Subparagraph 1.9.6 any amount held under a trustee
writ or pursuant to a restraining order or injunction.
ARTICLE 2 - WAGES AND EMPLOYMENT PRACTICES
2.1 Preference To Veterans and Citizens In Public Work; Rate of Wages: (Statutory reference
M.G.L. c.149, §26) This paragraph applies to every contract or subcontract for the
construction of public works by the Commonwealth or by a county, town or district, or by
persons contracting or subcontracting for such works.
2.1.1 In the employment of mechanics and apprentices, teamsters, chauffeurs and
laborers, preference shall first be given to citizens of the Commonwealth who have
been residents of the Commonwealth for at least six months at the commencement
of their employment, who are veterans as defined in M.G.L. c.4, §7, clause 43, and
who are qualified to perform the work to which the employment relates; and
secondly, to citizens of the Commonwealth generally who have been residents of the
Commonwealth for at least six months at the commencement of their employment,
and if they cannot be obtained in sufficient numbers, then to citizens of the United
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States, and every contract for such work shall contain a provision to this effect. Each
county, town or district in the construction of public works, or persons contracting or
subcontracting for such works, shall give preference to veterans and citizens who are
residents of such county, town or district.
2.1.2 The rate per hour of the wages paid to said mechanics and apprentices, teamsters,
chauffeurs and laborers in the construction of public works shall not be less than the
rate or rates of wages to be determined by the Commissioner as hereinafter
provided; provided, that the wages paid to laborers employed on said works shall not
be less than those paid to laborers in the municipal service of the town or towns
where said works are being constructed; provided, further, that where the same
public work is to be constructed in two or more towns, the wages paid to laborers
shall not be less than those paid to laborers in the municipal service of the town
paying the highest rate; provided further, that if, in any of the towns where the works
are to be constructed, a wage rate or wage rates have been established in certain
trades and occupations by collective agreements or understandings in the private
construction industry between organized labor and employers, the rate or rates to be
paid on said works shall not be less than the rates so established; provided, further,
that in towns where no such rate or rates have been so established, the wages paid
to mechanics and apprentices, teamsters, chauffeurs and laborers on public works,
shall not be less than the wages paid to the employees in the same trades and
occupations by private employers engaged in the construction industry. This section
shall also apply to regular employees of the Commonwealth or of a county, town or
district, when such employees are employed in the construction, addition to or
alteration of public buildings for which special appropriations of more than one
thousand dollars are provided. Payments by employers to health and welfare plans,
pension plans and supplementary unemployment benefit plans under collective
bargaining agreements or understandings between organized labor and employers
shall be included for the purpose of establishing minimum wage rates as herein
provided.
2.1.3 It is the obligation of the Contractor to assure that the Contractor and all of its
subcontractors comply with the requirements of the Massachusetts Prevailing Wage
Law, MGL c. 149 §§26-27H. The Contractor shall be responsible for all loss, cost
and damage suffered or incurred by the Owner as a result of any stop work order or
other enforcement action taken by the Attorney General under the authority of MGL
c.149, §27, and shall release, indemnify, hold harmless and defend the Owner, the
Architect, their officers, employees and consultants, from and against all claims,
actions, suits, fines, or administrative proceedings arising out of or related to the
violation by the Contractor or any subcontractor of the said Prevailing Wage Law (or,
in the case of the Contractor’s defense obligation, the claimed violation thereof).
Unless otherwise expressly provided in the Contract Documents, all payroll records
required to be submitted to the Owner shall be delivered to a designated employee of
the Owner, and not to the Architect.
2.2 List of Jobs; Classifications; Determination of Rate of Wages; Schedule: (Statutory reference
M.G.L. c.149, §27) This paragraph applies to every contract or subcontract for the
construction of public works by the Commonwealth, or by a county, town or district.
The Commissioner shall prepare, for the use of such public officials or public bodies
whose duty it shall be to cause public works to be constructed, a list of the several
jobs usually performed on various types of public works upon which mechanics and
apprentices, teamsters, chauffeurs and laborers are employed. The Commissioner
shall classify said jobs, and he may revise such classifications from time to time, as
he may deem advisable. Prior to awarding a contract for the construction of public
works, said public official or public body shall submit to the Commissioner a list of the
jobs upon which mechanics and apprentices, teamsters, chauffeurs and laborers are
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to be employed, and shall request the Commissioner to determine the rate of wages
to be paid on each job. Said rates shall apply to all persons engaged in transporting
gravel or fill to the site of said public works or removing gravel or fill from such site,
regardless of whether such persons are employed by a contractor or subcontractor or
are independent contractors or owner-operators. The Commissioner, subject to the
provisions of Paragraph 2.1 of these Supplementary General Conditions, shall
proceed forthwith to determine the same, and shall furnish said official or public body
with a schedule of such rate or rates of wages as soon as said determination shall
have been made. In advertising or calling for bids for said works, the awarding
official or public body shall incorporate said schedule in the advertisement or call for
bids by an appropriate reference thereto, and shall furnish a copy of said schedule
without cost, to any person requesting the same. Said schedule shall be made a part
of the contract for said works and shall continue to the minimum rate or rates of
wages for said employees during the life of the contract. Any person engaged in the
construction of said works shall cause a legible copy of said schedule to be kept
posted in a conspicuous place at the site of said works during the life of the contract.
The aforesaid rates of wages in the schedule of wage rates shall include payments
by employers to health and welfare plans, pension plans and supplementary
unemployment benefit plans as provided in Paragraph 2.1, and such payments shall
be considered as payments to persons under this section performing work as herein
provided. Any employer engaged in the construction of such works who does not
make payments to a health and welfare plan, a pension plan and a supplementary
unemployment benefit plan, where such payments are included in said rates of
wages, shall pay the amount of said payments directly to each employee engaged in
said construction. Note: The awarding authority does not guarantee the accuracy of
any schedule of wage rates furnished to the Contractor hereunder, and the
Contractor shall be responsible for ascertaining the prevailing wages in the area
where the work will be performed.
2.3 Employment Records to be Kept by Contractor, Subcontractors; Statement of Compliance:
(Statutory reference M.G.L. c.149, §27B) This paragraph applies to every contract or
subcontract for the construction of public works by the Commonwealth, or by a county, town
or district.
Every Contractor, Subcontractor or public body engaged in said public works to
which Paragraph 2.2 of this Document applies, shall keep a true and accurate record
of all mechanics and apprentices, teamsters, chauffeurs and laborers employed
thereon, showing the name, address and occupational classification of each such
employee on said works, and the hours worked by, and the wages paid to, each such
employee, and shall furnish to the attorney general or his representative, upon his
request, a copy of said record, signed by the employer or his authorized agent under
the penalties of perjury. Such records shall be open to inspection by any authorized
representative of the Department of Labor and Industries at any reasonable time, and
as often as may be necessary. Every Contractor and Subcontractor require to keep
such a record shall submit a copy of said record to the awarding authority directly on
a weekly basis.
Each such Contractor, Subcontractor or public body shall preserve its payroll records
for a period of three years from the date of completion of the contract.
Each such Contractor, Subcontractor or public body shall furnish to the awarding
authority directly within fifteen days after completion of its portion of the work a
statement, executed by the Contractor, Subcontractor, or public body or by any
authorized officer or employee of the Contractor, Subcontractor or public body who
supervises the payment of wages, in the following form:
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STATEMENT OF COMPLIANCE
___________________, 20 ___
I, _____________________________________________________________________
(Name of signatory party) (Title)
do hereby state That I pay or supervise the payment of the persons employed by:
_______________________________________________________________________
(Contractor, Subcontractor, or public body)
on the _________________________________________________________ and that all
(building or project)
mechanics and apprentices, teamsters, chauffeurs and laborers employed on said project
have been paid in accordance with wages determined under the provisions of sections
twenty-six and twenty-seven of chapter one hundred and forty- nine of the General Laws.
Signature
Title ____________________________________________
The above mentioned copies of payroll records and statements of compliance shall be
available for inspection by any interested party filing a written request to the Commissioner
for such inspection.
2.4 Wages Paid to Operators of Trucks and Other Equipment: (Statutory reference M.G.L. c.149,
§27F) This paragraph applies to every contract for the construction of public works by the
Commonwealth, or by a county, city, town or district.
Prescribed rates of wages, as determined by the Commissioner, shall be paid to the
operators of all trucks, vehicles or equipment employed on the Project. Said rates of
wages shall be requested of said Commissioner by the awarding authority and shall
be furnished by the Commissioner in a schedule containing the classifications of jobs,
and the rate of wages to be paid for each job. Said rates of wages shall include
payments to health and welfare plans, or, if no such plan is in effect between
employers and employees, the amount of such payments shall be paid directly to
said operators.
2.5 Reserve Police Officers: (Statutory reference M.G.L. c.149, §34B) This paragraph applies to
every contract for the construction, alteration, maintenance, repair or demolition of, or
addition to, any public works for the Commonwealth or any political subdivision thereof.
The Contractor shall pay to any reserve police officer employed by him in any city or
town the prevailing rate of wage paid to regular police officers in such city or town.
2.6 Eight-Hour Day: (Statutory reference M.G.L. c.149, §§30 and 34) This paragraph applies
only to contracts which are subject to the provisions of the aforesaid sections of the
Massachusetts General Laws.
No laborer, worker, mechanic, foreman or inspector working within this
Commonwealth in the employ of the Contractor, Subcontractor or other person doing
or contracting to do the whole or part of the work contemplated by the contract, shall
be required or permitted to work more than eight hours in any one day or more than
forty-eight hours in any one week, or more than six days in any one week, except in
cases of emergency.
2.7 Lodging: (Statutory reference M.G.L. c.149, §25) This paragraph applies to every contract
for the doing of public work with the Commonwealth, a county, city, or town, or with a
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department, board, commission, or officer acting therefor.
Every employee under this contract shall lodge, board and trade where and with
whom he elects, and neither the Contractor nor his agents or employees shall, either
directly or indirectly, require as a condition of the employment of any person that the
employee shall lodge, board or trade at a particular place or with a particular person.
2.8 Access to Contractor's Records: (Executive Order No. 195) This paragraph applies to every
contract for the purchase of services or materials by any agency, bureau, board, commission,
institution, or department of the Commonwealth.
The Governor or his designee, the secretary of administration and finance, and the
state auditor or his designee shall have the right at reasonable times and upon
reasonable notice to examine the books, records and other compilations of data, of
the Contractor which pertain to the performance and requirements of this contract.
2.9 Worker's Compensation Insurance: (Statutory reference M.G.L. c.149, §34A) This
paragraph applies to every contract for the construction, alteration, maintenance, repair or
demolition of, or addition to, any public building or other public works for the Commonwealth
or any political subdivision thereof.
The Contractor shall, before commencing performance of the contract, provide by
insurance for the payment of compensation and the furnishing of other benefits under
M.G.L. c.152 to all persons to be employed under the contract, and the Contractor
shall continue such insurance in full force and effect during the term of the contract.
Sufficient proof of compliance with this Paragraph 2.9 must be furnished at the time
of execution of this contract. Failure to provide and continue in force such insurance
as aforesaid shall be deemed a material breach of the contract and shall operate as
an immediate termination thereof. No cancellation of such insurance, whether by the
insurer or by the insured, shall be valid unless written notice thereof is given by the
party proposing cancellation to the other party and to the awarding authority at least
fifteen days prior to the intended effective date thereof, which date shall be
expressed in said notice.
ARTICLE 3 - EQUAL EMPLOYMENT OPPORTUNITY, NON-DISCRIMINATION AND AFFIRMATIVE
ACTION PROGRAM (M.G.L. c.151B, EXECUTIVE ORDER 478; GOALS FOR
PARTICIPATION BY MINORITY BUSINESS ENTERPRISES AND WOMEN BUSINESS
ENTERPRISES, M.G.L. c.7, §40N, and EXECUTIVE ORDER 524)
3.1 Compliance, General: For purpose of this Article, "minority" refers to Asians, Blacks, Western
Hemisphere Hispanics, Native Americans, and Cape Verdeans; "Commission" refers to the
Massachusetts Commission Against Discrimination. During the performance of this Contract,
the Contractor and all of its Subcontractors (hereinafter collectively referred to as the
Contractor) shall comply with all applicable equal employment opportunity, non-discrimination
and affirmative action requirements, including but not limited to the following:
3.2 Non-Discrimination and Affirmative Action: The Contractor shall not discriminate against any
employee or applicant for employment because of race, color, religious creed, national origin,
age, handicap, sexual orientation, or sex. The aforesaid provision shall include, but not be
limited to, the following: employment upgrading, demotion or transfer; recruitment advertising;
recruitment layoff; termination; rates of pay or other forms of compensation; conditions or
privileges of employment; and selection for apprenticeship. The Contractor shall comply with
the provisions of M.G.L. c.151B and all other applicable anti-discrimination and equal
opportunity laws.
3.2.1 The Contractor shall comply with the provisions of Executive Order 526, entitled
Order Regarding Nondiscrimination, Diversity, Equal Opportunity and Affirmative
Action, which prohibits unlawful discrimination based on race, color, age, gender,
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ethnicity, sexual orientation, religion, creed, ancestry, national origin, disability,
veteran’s status (including Vietnam-era veterans), or background. Executive Order
526 is herein incorporated by reference and made a part of this Contract.
3.2.2 Pursuant to Executive Order 526, the Contractor and any subcontractors may not
engage in discriminatory employment practices; and the Contractor must certify that it
is in compliance with all applicable federal and state laws, rules, and regulations
governing fair labor and employment practices; and commit to purchasing supplies
and services from certified minority or women-owned businesses, small businesses,
or businesses owned by socially or economically disadvantaged persons or persons
with disabilities. These provisions shall be enforced through the contracting agency,
the Operational Services Division, and/or the Massachusetts Commission Against
Discrimination. Any breach shall be regarded as a material breach of Contract that
may subject Contractor to appropriate sanctions.
3.2.3 In connection with the performance of the Work, the Contractor shall undertake in
good faith affirmative action measures designed to eliminate any discriminatory
barriers in the terms and conditions of employment on the grounds of race, color,
religious creed, national origin, age, sexual orientation, or sex, and to eliminate and
remedy any effects of such discrimination in the past. Such affirmative action shall
entail positive and aggressive measures to ensure equal opportunity in the areas of
hiring, upgrading, demotion or transfer, recruitment, layoff or termination, rate of
compensation, and in-service or apprenticeship training programs. This affirmative
action shall include all action required to guarantee equal employment opportunity for
all persons, regardless of race, color, religious creed, national origin, age, sexual
orientation, or sex. A purpose of this provision is to ensure to the fullest extent
possible an adequate supply of skilled tradesmen for future public construction
projects.
3.2.4 If the Contractor shall use any subcontractor on any work performed under this
Contract, the Contractor shall take affirmative steps to negotiate with qualified
minority and women subcontractors. These affirmative steps shall cover both pre-bid
and post-bid periods. It shall include notification to the State Supplier Diversity Office
or its designee, while bids are in preparation, of all products, work or services for
which the Contractor intends to negotiate bids. In all solicitations either by
competitive bidding or negotiation made by the Contractor either for work to be
performed under a subcontract or for the procurement of materials or equipment,
each potential subcontractor or supplier shall be notified in writing by the Contractor
of the Contractor's obligations under this Contract relative to non-discrimination and
affirmative action.
3.2.5 As part of its obligation of remedial action under this Article, the Contractor shall
maintain on this project not less than the percent ratio set forth in the Owner -
Contractor Agreement of minority employee worker hours to total worker hours in
each job category including but not limited to bricklayers, carpenters, cement
masons, electricians, ironworkers, operating engineers, and those "classes of work"
enumerated in M.G.L. c.149, §44F.
3.2.6 In the hiring of minority journeypersons, apprentices, trainees and advanced trainees,
the Contractor shall rely on referrals from a multi-employer affirmative action program
approved by the Commission, traditional referral methods utilized by the construction
industry, and referrals from agencies, not more than three in number at any one time,
designated by the Liaison Committee or the Awarding Authority.
3.3 Liaison Committee, Reports and Records: At the option of the awarding authority, there may
be established for the term of this Contract a body to be known as the Liaison Committee.
The Liaison Committee shall be composed of one representative each from the awarding
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authority, the Commission and such other representatives as may be designated by the
Commission in conjunction with the awarding authority. The Contractor (or his agent, if any,
designated by him as the on-Site equal employment opportunity officer) shall recognize the
Liaison Committee as an affirmative action body, and shall establish a continuing working
relationship with the Liaison Committee, consulting with the Liaison Committee on all matters
related to minority recruitment, referral, employment and training.
3.3.1 The Contractor shall prepare projected staffing tables on a quarterly basis. These
shall be broken down into projections, by week, of workers required in each trade.
Copies shall be furnished one week in advance of the commencement of the period
covered, and also when updated, to the Awarding Authority and Liaison Committee.
The Contractor shall prepare weekly reports in a form approved by the Awarding
Authority of hours worked in each trade by each employee, identified as minority or
non-minority. Copies of these shall be provided at the end of each such week to the
Awarding Authority and to the Liaison Committee.
3.3.2 Records of employment referral orders, prepared by the Contractor, shall be made
available to the Awarding Authority and to the Liaison Committee on request.
3.3.3 A designee of the Awarding Authority and a designee of the Liaison Committee shall
each have right to access to the Site.
3.3.4 The Contractor shall comply with the provisions of M.G.L. c.151B as amended, of the
Massachusetts General Laws, which is herein incorporated by reference and made a
part of this Contract.
3.3.5 The Contractor shall provide all information and reports required by the Awarding
Authority or the Commission on forms and in accordance with instructions issued by
either of them and will permit access to its facilities and any books, records, accounts
and other sources of information which may be determined by the Awarding Authority
or the Commission to affect the employment of personnel. This provision shall apply
only to information pertinent to the Owner 's supplementary affirmative action
Contract requirements. Where information required is in the exclusive possession of
another who fails or refuses to furnish this information, the Contractor shall so certify
to the Awarding Authority or the Commission as appropriate and shall set forth what
efforts he has made to obtain the information.
3.4 Sanctions:
3.4.1 Whenever the Awarding Authority, the Commission, or the Liaison Committee
believes the Contractor or any Subcontractor may not be operating in compliance
with the terms of this Article, the Commission shall directly, or through its designated
agent, conduct an appropriate investigation, and may confer with the parties, to
determine if such Contractor is operating in compliance with the terms of this Article.
If the Commission or its agent finds the Contractor or any Subcontractor not in
compliance, it may make a preliminary report on non-compliance, and notify such
Contractor in writing of such steps as will in the judgment of the Commission or its
agent bring such Contractor into compliance. In the event that such Contractor fails
or refuses to fully perform such steps, the Commission may make a final report of
non-compliance, and recommend to the Awarding Authority the imposition of one or
more of the sanctions listed below. If, however, the Commission believes the
Contractor or any Subcontractor has taken or is taking every possible measure to
achieve compliance, it shall not make a final report of non-compliance. Within
fourteen days of the receipt of the recommendations of the Commission, the
Awarding Authority shall move to impose one or more of the following sanctions, as it
may deem appropriate to attain full and effective enforcement:
(1) The recovery by the Awarding Authority from the Contractor of 1/100 of 1% of
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the Contract award amount or $1,000, whichever sum is greater, in the nature
of liquidated damages or, if a Subcontractor is in non-compliance, the recovery
by the Awarding Authority from the Contractor, to be assessed by the
Contractor as a back-charge against the subcontractor, of 1/10 of 1% of the
subcontract amount or $400, whichever sum is greater, in the nature of
liquidated damages, for each week that such party fails or refuses to comply;
(2) The suspension of any payment or part thereof due under the Contract until
such time as the Contractor or any subcontractor is able to demonstrate his
compliance with the terms of the Contract;
(3) The termination, or cancellation, of the Contract, in whole or in part, unless the
Contractor or any Subcontractor is able to demonstrate within a specified time
his compliance with the terms of the contract;
(4) The denial to the Contractor or any subcontractor of the right to participate in
any future contracts awarded by the Awarding Authority for a period of up to
three years.
3.4.2 If at any time after the imposition of one or more of the above sanctions a Contractor
is able to demonstrate that it is in compliance with this Article, the Contractor may
request the Awarding Authority, in consultation with the Commission, to suspend the
sanctions conditionally, pending a final determination by the Commission as to
whether the Contractor is in compliance. Upon final determination of the
Commission, the Awarding Authority, based on the recommendation of the
Commission, shall either lift the sanctions or re-impose them.
3.4.3 Sanctions recommended by the Commission and enumerated under Section 3.4.1
above shall not be imposed by the Awarding Authority except after an adjudicatory
proceeding, as that term is used in M.G.L. c.30A, has been conducted. No
investigation by the Commission or its agent shall be initiated without prior notice to
the Contractor.
3.4.4 Notwithstanding the provisions of subparagraphs 3.4.1 through 3.4.3 above, if the
Awarding Authority determines after investigation that the Contractor or any
Subcontractor is not in compliance with the terms of this Article, the Awarding
Authority may suspend any payment or portion thereof due under the Contract until
the Contractor demonstrates to the satisfaction of the Awarding Authority compliance
with the terms of this Article. This temporary suspension of payments by the
Awarding Authority is separate from the sanctions set forth in subparagraphs 3.4.1
through 3.4.3 of this Article, which are determined by MCAD and recommended to
the Awarding Authority. Payment may be suspended only after the Contractor and
any other interested party shall have been given the opportunity to present evidence
in support of its position at an informal hearing held by the Awarding Authority, and
the Awarding Authority has concluded upon review of all the evidence that such
penalty is justified.
Payment shall not be suspended if the Awarding Authority finds that the
Contractor made its best efforts to comply with this Article, or that some other
justifiable reason exists for waiving the provisions of this Article in whole or in
part.
3.5 MBE/WBE Participation: The goals for minority business enterprise and woman business
enterprise participation established for this Contract are as set forth in the Contract
Documents. The Contractor and all Subcontractors, sub-subcontractors, and materials
suppliers shall comply with requirements pertaining to MBE/WBE participation set forth in the
Contract Documents in order to meet the MBE/WBE participation goals established for this
Contract. Refer to Document 00 7330 "MBE/WBE Participation Requirements" for additional
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information.
ARTICLE 4 - CONTRACTOR'S ACCOUNTING METHOD REQUIREMENTS
This Article 4 applies to "Contracts" and "Contractors" as defined in Subparagraphs 4.1.1 and 4.1.2
below. Statutory reference M.G.L. c.30, §39R.
4.1 Definitions: The words defined herein shall have the meaning stated below whenever they
appear in this Article 4:
4.1.1 "Contractor" means any person, corporation, partnership, joint venture, sole
proprietorship, or other entity awarded a contract pursuant to §39M of c.30, §§44A-
44H, inclusive, of c.149, and §§30B-30P, inclusive of c.7.
4.1.2 “Contract” means any contract awarded or executed pursuant to §§30B-30P,
inclusive of c.7, and any contract awarded or executed pursuant to §39M of c.30, or
§§44A-44H, inclusive, of c.149, which is for an amount or estimated amount that
exceeds the dollar amount set forth in M.G.L. c.30, §39R.
4.1.3 "Records" means books of original entry, accounts, checks, bank statements and all
other banking documents, correspondence, memoranda, invoices, computer
printouts, tapes, discs, papers and other documents or transcribed information of any
type, whether expressed in ordinary or machine language.
4.1.4 "Independent Certified Public Accountant" means a person duly registered in good
standing and entitled to practice as a certified public account under laws of the place
of his/her residence or principal office and who is in fact independent. In determining
whether an accountant is independent with respect to a particular person,
appropriate consideration should be given to all relationships between the accountant
and that person or any affiliate thereof. Determination of an accountant's
independence shall not be confined to the relationships existing in connection with
the filing of reports with the awarding authority.
4.1.5 "Audit", when used in regard to financial statements, means an examination of
records by an independent certified public accountant in accordance with generally
accepted accounting principles and auditing standards for the purpose of expressing
a CERTIFIED opinion thereon, or, in the alternative, a qualified opinion or a
declination to express an opinion for stated reasons.
4.1.6 "Accountant's Report", when used in regard to financial statements, means a
document in which an independent certified public accountant indicates the scope of
the audit which she/he has made and sets forth his/her opinion regarding the
financial statements taken as a whole with a listing of noted exceptions and
qualifications, or an assertion to the effect that an overall opinion cannot be
expressed. When an overall opinion cannot be expressed the reason therefor shall
be stated. An accountant's report shall include as a part thereof a signed statement
by the responsible corporate officer attesting that management has fully disclosed all
material facts to the independent certified public accountant, and that the audited
financial statement is a true and complete statement of the financial condition of the
Contractor.
4.1.7 "Management", when used herein, means the chief executive officers, partners,
principals, or other person or persons primarily responsible for the financial and
operational policies and practices of the Contractor.
4.1.8 Accounting terms, unless otherwise defined herein, shall have a meaning in
accordance with generally accepted accounting principles and auditing standards.
4.2 Books, Records, and Accounts: Subparagraph 4.1.2. hereof notwithstanding, every
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agreement or contract awarded or executed pursuant to §§30B-30P, inclusive of c.7, and
pursuant to §39M of c.30 or to §§44A-44H, inclusive, of c.149, shall provide that:
4.2.1 The Contractor shall make, and keep for at least six years after final payment, books,
records, and accounts which in reasonable detail accurately and fairly reflect the
transactions and dispositions of the Contractor.
4.2.2 Until the expiration of six years after final payment, the awarding authority, office of
Inspector General, and the Deputy Commissioner of Capital Planning and Operations
shall have the right to examine any books, documents, papers or records of the
Contractor or of his/her Subcontractors that directly pertain to, and involve
transactions relating to, the Contractor or his/her Subcontractors.
4.2.3 If the agreement is a contract as defined herein, the Contractor shall describe any
change in the method of maintaining records or recording transactions which
materially affect any statements filed with the awarding authority, including in his/her
description, the date of the change and reasons therefor, and shall accompany said
description with a letter from the Contractor's independent certified public accountant
approving or otherwise commenting on the changes.
4.2.4 If the agreement is a contract as defined herein, the Contractor has filed a statement
of management on internal accounting controls as set forth in Paragraph 4.3 below
prior to the execution of the contract.
4.2.5 If the agreement is a contract as defined herein, the Contractor has filed prior to the
execution of the contracts and will continue to file annually, an audited financial
statement for the most recent completed fiscal year as set forth in Paragraph 4.5
below.
4.3 Management Statement: Every Contractor awarded a contract shall file with the awarding
authority a statement of management as to whether the system of internal accounting
controls of the Contractor and its subsidiaries reasonably assures that:
4.3.1 transactions are executed in accordance with management's general and specific
authorization;
4.3.2 transactions are recorded as necessary:
(i) to permit preparation of financial statements in conformity with generally
accepted accounting principles, and
(ii) to maintain accountability for assets;
4.3.3 access to assets is permitted only in accordance with management's general or
specific authorization; and
4.3.4 the recorded accountability for assets is compared with the existing assets at
reasonable intervals and appropriate action was taken with respect to any difference.
4.4 CPA Examination Statement: Every Contractor awarded a contract shall also file with the
awarding authority a statement prepared and signed by an independent certified public
accountant, stating that she/he has examined the statement of management on internal
accounting controls, and expressing an opinion as to
4.4.1 whether the representations of management in response to this Paragraph and
Paragraph 4.2 above are consistent with the result of management's evaluation of
the system of internal accounting controls; and
4.4.2 whether such representations of management are, in addition, reasonable with
respect to transactions and assets in amounts which would be material when
measured in relation to the applicant's financial statements.
4.5 Annual Financial Statement: Every Contractor awarded a contract by the Commonwealth or
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by any political subdivision thereof shall annually file with the Deputy Commissioner of
Planning and Operations during the term of the contract a financial statement prepared by an
independent certified public accountant on the basis of an audit by such accountant. The
final statement filed shall include the date of final payment. All statements shall be
accompanied by an accountant's report.
ARTICLE 5 - MISCELLANEOUS
5.1 Weather Protection: This paragraph applies to every contract subject to M.G.L. c.149 §44A.
The Contractor shall install weather protection and furnish adequate heat in the protected
area from November 1 to March 31, as required by M.G.L. c.149, §44F (1).
5.2 Form for Sub-Contract: This paragraph applies to every contract subject to M.G.L. c.149,
§44A.
The Contractor when sub-contracting with sub-bidders filed pursuant to M.G.L. c.149
§44F (4) (c) shall use the form of subcontract set forth in M.G.L. c.149, §44F.
5.3 Foreign Corporations: This paragraph applies to every contract with the Commonwealth, a
county, city, town, district, board, commission, or other public body for the construction,
reconstruction, alteration, remodeling, repair, or demolition of any public building or other public
works.
The Contractor, if a foreign corporation, shall comply with M.G.L. c.30, §39L.
5.4 Shoring: (Statutory reference M.G.L. c.149, §129A) This paragraph applies to every
construction project carried on by any city, town, country, or other subdivision of the
Commonwealth in which a trench is to be dug to a depth of five feet or more, except for
trenches for laying of water pipes dug to a depth of six and one-half feet which will be open less
than 48 hours, and except for digging of graves.
Trenches shall be shored and braced in conformity with rules and regulations relating
thereto adopted and enforced by the Department of Labor and Industries.
5.5 Certification of Compliance with Tax Law: (Statutory reference M.G.L. c.62C, §49A) This
paragraph applies to contracts for goods or services furnished to any department, board,
commission, division, authority, district or other agency of the Commonwealth or any
subdivision of the Commonwealth, including a city, town or district.
By executing this contract, the Contractor certifies, under penalties of perjury, that to the
best of his information, knowledge and belief he has complied with all laws of the
Commonwealth relating to taxes.
END OF DOCUMENT