Section 5. (a) The public agency shall utilize a 2–phase selection process as provided in subsection (c) of this section and sections 6 to 7, inclusive, for the selection of a construction management at risk firm with whom to enter into a contract to provide construction management at risk services. Each contract between a public agency and a construction management at risk firm shall be secured by a performance and payment bond in the full sum of the guaranteed maximum price by a surety company licensed to do business in the commonwealth and whose name appears on the United States Treasury Department Circular 570.

(b) Before issuing a request for qualifications, hereinafter called RFQ, the public agency shall establish a prequalification committee for the purpose of reviewing and evaluating responses submitted to the RFQ issued pursuant to subsection (c). The prequalification committee shall be comprised of 1 representative of the designer, the owner's project manager, and at least 2 representatives of the public agency.

(c) Phase 1 of the 2–phase selection process shall begin once the public agency gives public notice of the building project and solicits responses to an RFQ from construction management at risk firms; but, that the public notice and solicitation shall include:

(1) the time and date for receipt of responses to the RFQ, the address of the office to which the responses are to be delivered, and the timeframe in which the public agency will respond to said responses;

(2) a general description of the project including preliminary concept designs and key factors important to the final selection;

(3) the evaluation procedure and criteria pursuant to subsection (f), including any rating system;

(4) a specific description of the scope of services expected of the selected construction management at risk firm during both the design, pre-construction and construction phases of the project;

(5) a general description of the anticipated schedule and estimated construction cost for the building project;

(6) a listing of the project team including the public agency, the designer, and the public agency's owner's project manager;

(7) the criteria for the selection of the construction management at risk firm, including minimum experience, requirements for presentations, and the schedule for the selection process;

(8) a prohibition against any unauthorized communication or contact with the public agency outside of official pre-proposal meetings; and if desired,

(9) a limitation on the size and number of pages to be included in the response to the RFQ; and,

(10) a statement indicating that the RFQ will be used to prequalify construction management at risk firms that will be invited to submit a proposal in response to a request for proposal issued pursuant to section 6.

(d) The public agency shall require interested construction management at risk firms to submit a statement of qualifications in response to the RFQ issued pursuant to subsection (c). The statement of qualifications shall include, at a minimum, the following:

(1) a cover letter or executive summary detailing the key elements and factors that differentiate the firm from other responders;

(2) completion of a qualifications application similar in form to AIA Document A305, 1986 edition, listing general business information and financial capacity;

(3) a list of lawsuits and arbitrations to which the firm is a party in regard to construction contracts within the last 3 years, including a list of all convictions or fines for violations of state or federal law;

(4) submission of a project organization chart with specific information on key project personnel or consultants;

(5) submission of an audited financial statement for the most recent fiscal year and a letter from the surety company of the firm confirming the ability to provide performance and payment bonds for the building project under consideration; but, the financial information submitted shall remain confidential and shall not be a public record to the fullest extent permissible under the law;

(6) submission of information on the firm's safety record including its workers' compensation experience modifier for the prior 3 years;

(7) submission of information on and evidence of the firm's compliance record with respect to minority business enterprise and women business enterprise inclusion goals and workforce inclusion goals, if applicable;

(8) submission of information regarding the firm's experience on similar building projects including references from the owners and architects of the building projects;

(9) submission of information on the experience of the firm on similar projects that used the construction management at risk delivery method, including references from the owners and architects of such projects;

(10) submission of information on any projects where the firm was terminated, failed to complete the work, or paid liquidated damages;

(11) submission of specific examples of the firm's project management reports or other illustrations of the company's operating philosophy;

(12) a certificate of eligibility issued by the division of capital asset management and maintenance pursuant to section 44D of chapter 149, showing a capacity rating sufficient for the project, and an update statement; and

(13) any other relevant information that the public agency determines desirable.

The statement of qualifications shall be signed under pains and penalties of perjury.

(e) The public notice and solicitation required in subsection (c) shall be advertised in a newspaper of general circulation in the area in which the building project is located, in the central register pursuant to section 20A of chapter 9, and within the COMMBUYS system. The public notice and solicitation shall be given not less than 2 weeks before the deadline for submitting responses to the RFQ.

(f) Upon receipt of the statement of qualifications submitted by construction management at risk firms, the prequalification committee established pursuant to subsection (b), shall evaluate each statement of qualifications using the criteria as provided in the RFQ. Only construction management at risk firms achieving an acceptable rating as defined pursuant to clause (3) of subsection (c) will be selected to proceed to phase 2 of the 2–phase selection process and receive a request for proposals issued pursuant to section 6. The prequalification committee shall select a minimum of 3 qualified construction management at risk firms to receive the request for proposals. If the prequalification committee is not able to identify a minimum of 3 qualified construction management at risk firms, the public agency shall re-advertise the building project using the procedures herein, or may procure the building project pursuant to the provisions of sections 44A to 44J, inclusive, of chapter 149. The decision of the prequalification committee shall be final and shall not be subject to appeal except on grounds of fraud or collusion.