2007 Legislative Bills Filed

HB 3172
Public Construction Reform Technical Corrections Bill - (Re-filed by Rep. Antonio Cabral and supported by AGC, ABC, ASM, BSA, BTEA, and CIM)
Corrects several oversights and defective language in the 2004 construction Reform Legislation. In 2006, a compromise was reached with the employers' associations and with labor on wording to clarify changes to the Independent Contractor Statute.

HB 3213
MBE/WBE Requirements - "An Act to Require Filed Sub-Bidders to Participate in the Requirements Governing reservation of a Portion of the Work on Public Construction Contracts for Minority and Women Business Enterprises" - (Filed by AGC)
Requires filed sub-bidders on chapter 149 projects to participate in MBE/WBE requirements in the same manner as all general contractors. General contractors must now meet the 10% minority and 5% women set-aside requirements on the value of the total project. Since filed sub-bidders do not have to comply, the burden falls unfairly to the general to have to meet the requirements solely out of their portion of the work.

With the advent of the CM at Risk delivery system outside of Chapter 149, there should be latitude by the Awarding Authority and the CM to design trade contractor bid packages in a way that will require or encourage trade contractors to more freely participate in MBE/WBE requirements. In addition, CM at Risk will provide the CM/GC much needed additional time to recruit qualified MBE/WBE's to the project. Further, still - under the Reform Legislation - MBE/WBE's are given an additional five points toward their score in the RFQ process.

HB 3214
Three or Equal - "An Act to Improve Competition in the Furnishing of Materials for Use in Certain Public Contracts" - (Filed by AGC)
This bill is aimed at discouraging the designation of a proprietary item (only one manufacturer can meet the specification) without meeting the statutory conditions requirements for proprietary items.

HB 3215
Local Signature - "An ACt to Require Certification of the Authority of Public Officials to Bind Cities and Towns by Contract - (Filed by AGC)
Requires the city solicitor or town counsel to certify that the local officials who have signed the contract have the authority to do so.

HB 3261
Cost Efficient Construction Bill - No Damages for Delay - "An Act to Clarify Provisions Covering Payments for Suspensions, Constructive Suspensions and Interruptions on Public Agency Construction Contracts" - (Jointly Filed by AGC, ASM, and CIM)
Removes "no damages for delay" clauses from construction contracts and wipes out the effect of the disastrous Supreme Judicial Court decision in the Reynolds case. Under the legislation, a contractor would be able to recover increased costs (not profit) resulting from delays not caused by the contractor.

HB 3266
Pay if Paid - "An Act Barring Condition Precedent Payment Clauses" - (Jointly Filed by AGC and ASM)
Bars any "pay if paid" condition precedent language in a general contractor's contract with a subcontractor or private contracts unless a general contractor has first filed a notice of contract and takes all reasonable steps to ensure payment for subcontractors. Still allows "pay when paid" clauses or pay if paid if the sub is negligent. This compromist bill is the result of a two-year negotiation between AGC and ASM.

HB 2809
Indemnity Bill - "An Act to Clarify Indemnity Responsibility for GC's and Subcontractors" - (Jointly Filed by AGC and ASM)
Voids any provision in connection with a contract for construction that requires a general contractor or subcontractor to indemnigy any party for injury or damage to persons or property to the extent not caused by the GC or sub or their agents. The bill has been opposed by the Trial Attorneys.

New Mass. Academy of Trial Attorneys (MATA) legislative version replaces long-held fundamental concept in the Massachusetts indemnity statute that all parties should be responsible only in proportion to their actual negligence. The MATA version holds that all parties should each be responsible for a "pro rata share" of the liability for the injury or damage (i.e. if there are three parties at fault, each would pay 33% of the costs to the plaintiff).