Mass. Gen. Laws ch. 149 § 44F
Each separate section of the specifications required by the provisions of this section shall contain a paragraph describing by class of work and by reference to paragraph numbers in that section, each class of work, if any, requiring labor and materials which, in the opinion of the awarding authority based upon an investigation of the work involved, is customarily performed in that sub-trade under subcontract with a sub-bidder for that sub-trade, and which is estimated by the awarding authority to cost in excess of $25,000, and only each class of work so described shall be a class of work for which sub-bidder for that sub-trade must list the information required in the appropriate place designated on the bid form for that purpose.
Every contract subject to section forty-four A shall include specifications for the installation of weather protection and shall require that the general contractor shall install the same and that he shall furnish adequate heat in the area so protected during the months of November through March. Standards for such specifications shall be established by the commissioner of planning and operations in the executive office for administration and finance.
FORM FOR SUB-BID
To all General Bidders Except those Excluded:
A. The undersigned proposes to furnish all labor and materials required for completing, in accordance with the hereinafter described plans, specifications and addenda, all the work specified in Section No. ______ of the specifications and in any plans specified in such section, prepared by _________________________________ (name of architect or engineer) for _________________ (project) in ____________________ (city or town), Massachusetts, for the ____________ contract sum of ___________ dollars ($_______).
For Alternate No._______________ ; Add $_______ Subtract $_______
[Repeat preceding line for each alternate]
B. This sub-bid includes addenda numbered _______
C. This sub-bid
___ may be used by any general bidder except:
____________________________________________________________________________________
____________________________________________________________________________________
___ may only be used by the following general bidders:
____________________________________________________________________________________
____________________________________________________________________________________
[To exclude general bidders, insert ''X'' in one box only and fill in blank following that box. Do not answer C if no general bidders are excluded.]
D. The undersigned agrees that, if he is selected as a sub-bidder, he will, within 5 days, Saturdays, Sundays and legal holidays excluded, after presentation of a subcontract by the general bidder selected as the general contractor, execute with such general bidder a subcontract in accordance with the terms of this sub-bid, and contingent upon the execution of the general contract, and, if requested so to do in the general bid by the general bidder, who shall pay the premiums therefor, or if prequalification is required pursuant to section 44D 3/4, furnish a performance and payment bond of a surety company qualified to do business under the laws of the commonwealth and satisfactory to the awarding authority, in the full sum of the subcontract price.
E. The names of all persons, firms and corporations furnishing to the undersigned labor or labor and materials for the class or classes or part thereof of work for which the provisions of the section of the specifications for this sub-trade require a listing in this paragraph, including the undersigned if customarily furnished by persons on his own payroll and in the absence of a contrary provision in the specifications, the name of each such class of work or part thereto and the bid price for such class of work or part thereof are:
| Name | Class of Work | Bid Price |
[Do not give bid price for any class or part thereof furnished by undersigned.]
F. The undersigned agrees that the above list of bids to the undersigned represents bona fide bids based on the hereinbefore described plans, specifications and addenda and that, if the undersigned is awarded the contract, they will be used for the work indicated at the amounts stated, if satisfactory to the awarding authority.
G. The undersigned further agrees to be bound to the general contractor by the terms of the hereinbefore described plans, specifications, including all general conditions stated therein, and addenda, and to assume toward him all the obligations and responsibilities that he, by those documents, assumes toward the owner.
H. The undersigned offers the following information as evidence of his qualifications to perform the work as bid upon according to all the requirements of the plans and specifications:-
1. Have been in business under present business name _______ years.
2. Ever failed to complete any work awarded? _______
3. List one or more recent buildings with names of the general contractor and architect on which you served as a sub-contractor for work of similar character as required for the above-named building.
Building, Contractor and Architect Work
| Building | Architect | General Contractor | Amount of Contract |
| (a) | |||
| (b) | |||
| (c) |
4. Bank reference ________________________
I. The undersigned hereby certifies that he is able to furnish labor that can work in harmony with all other elements of labor employed or to be employed on the work; that all employees to be employed at the worksite will have successfully completed a course in construction safety and health approved by the United States Occupational Safety and Health Administration that is at least 10 hours in duration at the time the employee begins work and who shall furnish documentation of successful completion of said course with the first certified payroll report for each employee; and that he will comply fully with all laws and regulations applicable to awards of subcontracts subject to section 44F.
The undersigned further certifies under penalties of perjury that this sub-bid is in all respects bona fide, fair and made without collusion or fraud with any other person. As used in this subsection the word ''person'' shall mean any natural person, joint venture, partnership, corporation or other business or legal entity. The undersigned further certifies under penalty of perjury that the said undersigned is not presently debarred from doing public construction work in the commonwealth under the provisions of section twenty-nine F of chapter twenty-nine, or any other applicable debarment provisions of any other chapter of the General Laws or any rule or regulation promulgated thereunder.
Date _________________________
____________________________________________ (Name of Sub-bidder)
By ____________________________________________ (Title and Name of Person Signing Bid)
____________________________________________ (Business Address)
____________________________________________ (City and State)
Every sub-bidder duly filing a sub-bid with the awarding authority as aforesaid shall be bound thereby to every general bidder not excluded therein from the use thereof; and any variance from such sub-bid communicated to a general bidder shall be of no effect.
A performance and payment bond furnished by the subcontractor, either pursuant to the requirements of the prequalification process as established in section 44D 3/4 or at the request of a general contractor set forth in the general bid form, shall be for the benefit of the general contractor; shall secure the performance of the subcontract by the subcontractor; and shall indemnify and hold harmless the general contractor and the surety or sureties under the labor and materials or payment bond furnished by the general contractor to the awarding authority against (i) any and all loss and expense arising out of any and all claims in connection with the performance of the subcontract which would be required to be paid under the labor and materials or payment bond furnished by the general contractor to the awarding authority and (ii) attorneys' fees in the event that the subcontractor, after notice, fails to assume the defense of and defend such claims.
Each sub-bidder shall list in the sub-bid form the name and bid price of each person, firm or corporation performing each class of work or part thereof for which the section of the specifications for that sub-trade requires such listing; provided that, in the absence of a contrary provision in the specifications, any sub-bidder may, without listing any bid price, list his own name for any such class of work or part thereof and perform that work with persons on his own payroll, if such sub-bidder, after sub-bid opening, shows to the satisfaction of the awarding authority that he does customarily perform such class of work or the part thereof with employees on his own payroll who are mechanics or laborers as referred to in section twenty-six, and is qualified so to do.
If a sub-trade for which the awarding authority is required to take filed sub-bids constitutes the predominant work of the contract, the awarding authority may include that sub-trade work as part of the general bidder's work. The awarding authority shall award the general contract to the lowest responsible and eligible bidder who customarily performs that sub-trade with employees on his own payroll who are mechanics or laborers as referred to in said section twenty-six, except for any part of that sub-trade customarily performed by sub-contractors.
The subcontract shall be in the following form:
SUBCONTRACT
THIS AGREEMENT MADE THIS _____ DAY OF ______ (insert year), by and between ___________ a corporation organized and existing under the laws of _________ an individual doing business as ________ hereinafter called the ''Contractor'' and __________ a corporation organized and existing under the laws of ________ an individual doing business as _________ hereinafter called the ''Subcontractor''.
WITNESSETH that the Contractor and the Subcontractor for the considerations hereafter named, agree as follows:
1. The Subcontractor agrees to furnish all labor and materials required for the completion of all work specified in Section No. _______ of the specifications for ______________ (Name of Sub-Trade) and the plans referred to therein and addenda No. _____________, ___________________, ___________________, and ___________________ for the _______________________________________________________________________________________ (complete title of the project and the project number taken from the title page of the specifications) all as prepared by _________________________________________ (Name of Architect or Engineer) for the sum of __________ ($_______) and the Contractor agrees to pay the Subcontractor said sum for said work. This price includes the following alternates (and other items set forth in the sub-bid):
Alternate No(s). ____________, ____________, ____________, ____________, ____________, ____________, ____________, ____________, ____________, ____________, ____________, ____________, ____________, ____________.
(a) The Subcontractor agrees to be bound to the Contractor by the terms of the hereinbefore described plans; specifications (including all general conditions stated therein) and addenda No. ____, and ____, and ____, and to assume to the Contractor all the obligations and responsibilities that the Contractor by those documents assumes to the _______________________________________________________ (Awarding Authority) hereinafter called the ''Awarding Authority'', except to the extent that provisions contained therein are by their terms or by law applicable only to the Contractor.
(b) The Contractor agrees to be bound to the Subcontractor by the terms of the hereinbefore described documents and to assume to the Subcontractor all the obligations and responsibilities that the Awarding Authority by the terms of the hereinbefore described documents assumes to the Contractor, except to the extent that provisions contained therein are by their terms or by law applicable only to the Awarding Authority.
2. The Contractor agrees to begin, prosecute and complete the entire work specified by the Awarding Authority in an orderly manner so that the Subcontractor will be able to begin, prosecute and complete the work described in this subcontract; and, in consideration thereof, upon notice from the Contractor, either oral or in writing, the Subcontractor agrees to begin, prosecute and complete the work described in this Subcontract in an orderly manner and with due consideration to the date or time specified by the Awarding Authority for the completion of the entire work.
3. The Subcontractor agrees to furnish to the Contractor within a reasonable time after the execution of this subcontract, evidence of workers' compensation insurance as required by law and evidence of public liability and property damage insurance of the type and in limits required to be furnished to the Awarding Authority by the Contractor.
4. The Contractor agrees that no claim for services rendered or materials furnished by the Contractor to the Subcontractor shall be valid unless written notice thereof is given by the Contractor to the Subcontractor during the first ten (10) days of the calendar month following that in which the claim originated.
5. This agreement is contingent upon the execution of a general contract between the Contractor and the Awarding Authority for the complete work.
IN WITNESS WHEREOF, the parties hereto have executed this agreement the date and year first above-written.
SEAL
ATTEST ____________
________________________________
(Name of Subcontractor)
By ______________________________
SEAL
ATTEST ____________
________________________________
(Name of Subcontractor)
By ______________________________
In the event that the contract between the general contractor and the awarding authority does not contain provisions granting to the awarding authority the right to terminate the general contract when the general contractor encounters financial difficulties or fails to make satisfactory progress, the general contractor may insert the following paragraph:
If the Subcontractor should be adjudged a bankrupt, or if he should make a general assignment for the benefit of his creditors, or if a receiver should be appointed on account of his insolvency, or if he should persistently or repeatedly refuse or should fail, except in cases for which extension of time is provided, to supply enough properly skilled workmen or proper materials, or if he should fail to make prompt payment to subcontractors or for material or labor, or persistently disregard laws, ordinances or the instructions of the Contractor, or otherwise be guilty of a substantial violation of any provision of the contract, then the Contractor may, without prejudice to any other right or remedy and after giving the Subcontractor and his surety, if any, seven days' written notice, terminate the employment of the Subcontractor and take possession of the premises and of all materials, tools and appliances thereon and finish the work by whatever method he may deem expedient. In such case the Subcontractor shall not be entitled to receive any further payment until the work is finished. If the unpaid balance of the contract price shall exceed the expense of finishing the work including compensation for additional architectural, managerial and administrative services, such excess shall be paid to the Subcontractor. If such expense shall exceed such unpaid balance, the Subcontractor shall pay the difference to the Contractor.
The contractor and subcontractor shall have the right to seek damages for breach of a subcontract without terminating the subcontract or ceasing performance thereunder.
All sub-bidders when finally selected shall be notified in writing of their selection within forty-eight hours thereafter by the general bidder.
In each case of substitution of a sub-bidder for a sub-bidder listed in the general bid of the selected general contractor, the selected general contractor may require the substituted sub-bidder to furnish a performance and payment bond, and the premiums for same shall be added to the general bidder's price for work to be performed by him except where the selected general contractor had indicated in his general bid that the original sub-bidder designated for that sub-trade, in which substitution was made, would be required to furnish such bond.
In the instances enumerated in paragraphs (1), (2) and (3) of this section, the general bidder's price for work to be performed by him shall also be adjusted by the amount of the change in the premium for the general contractor's performance bond and his labor and materials or payment bond caused by the substitution.
In lieu of listing his name and sub-bid price in his general bid, such general bidder may list the name and amount of the lowest responsible and eligible sub-bidder for that sub-trade if (a) such sub-bidder's price is lower than his, (b) such sub-bid is available for his use; and (c) such sub-bid is not restricted to his use alone or to his use and that of another general bidder, or bidders.
Mass. Gen. Laws ch. 149, § 44F