810 CMR 2.00 — Asset management board

cmr-810-2.00810 CMR 2.00Regulation

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810 CMR: DIVISION OF CAPITAL ASSET MANAGEMENT AND MAINTENANCE 810 CMR 2.00:ASSET MANAGEMENT BOARD Section 2.01: Definitions 2.02: Powers of the Board 2.03: Meeting and Voting Procedures 2.04: Preliminary Project Proposals 2.05: Public Notice and Comment Requirements 2.06: Project Proposal 2.07: Project Approvals 2.08: Project Monitoring Responsibilities 2.09: Trusts 2.10: Termination 2.11: Severability

810 CMR 2.00 Asset management board

2.01 Definitions

2.01: Definitions Acquisition Project. Any Project for the acquisition of an Asset or Assets and which does not include the disposition of any Asset. Agency. Any executive office, department, agency, board or commission of the Commonwealth, including institutions under the Board of Higher Education, and not including independent authorities. Asset . Any property that is in the lawful possession of or otherwise held or to be procured by an Agency including, without limitation, both real and personal property in tangible or intangible form. Asset shall include, but shall not be limited to, land, buildings, structures, leases, easements, licenses, electronic and communication equipment, time sharing capacities, air, water, or mineral rights, utilities, vehicles, and professional and technical services and expertise. Board or Asset Management Board. The Asset Management Board established pursuant to St. 1990, c. 150, § 220, M.G.L. c. 7B. Chairman. The Secretary of Administration and Finance, or his or her designee. Commissioner. The Commissioner of the Division of Capital Asset Management and Maintenance (DCAMM) within the Executive Office of Administration and Finance. Contract. Any written agreement entered into to implement an Approved Project between an Agency and any private individual(s) or entities for the property disposition of any Asset or the procurement of any goods, services, or real property, including, without limitation a lease. Low Impact Electronic, Communications and Telecommunications Project. Any project that meets all of the following criteria: (a) must be primarily for the location of electronic, communications or telecommunications equipment; (b) must be on/in buildings or structures that already exist; and (c) the square footage of any improvements including any appurtenant cabinets or other similar improvements (but exclusive of wires or cables on poles or in underground conduits) does not exceed 500 square feet. Preliminary Project Proposal . A written submission by an Agency to the Board for preliminary approval of a Project in accordance with 810 CMR 2.04. A Preliminary Project Proposal shall not be required for Low Impact Electronic, Communications and Telecommunications Projects or Acquisition Projects. 10/16/20810 CMR - 5

810 CMR: DIVISION OF CAPITAL ASSET MANAGEMENT AND MAINTENANCE

2.01 continued

2.01: continued Project or Asset Management Project . Any project to promote the sound management of an Asset or Assets that is proposed for the consideration of the Board by an Agency pursuant to the provisions of M.G.L. c. 7B, and 810 CMR 2.00; provided, however, that this term shall not include any project involving the sale or permanent disposition of any Asset. Prior to final approval by the Board hereunder, any such Project shall be referred to as a "Proposed Project". From and after such final approval by the Board, any such Project shall be referred to as an "Approved Project". Project Proposal . A written submission of an Agency to the Board for final approval of a Project in accordance with 810 CMR 2.06. Trust Fund. A repository established in conformance with 810 CMR 2.00 by the state treasurer at the request of an Agency for the purpose of receiving and disbursing revenues generated by one or more Projects of an Agency.

2.02 Powers of the Board

2.02: Powers of the Board (1) The Board is authorized to review and approve Proposed Projects which meet each of the standards set forth in 810 CMR 2.02(1)(a) through (g). The Board may approve any Proposed Project which: (a) represents sound management of Assets held by the Agency; (b) is technically and financially viable; (c) does not interfere with current or foreseeable legal obligations of the Agency; (d) does not constitute a conflict of interest; (e) does not result in windfall profits to any individual or group of individuals; (f) serves a public purpose or is in the public interest; and (g) establishes an open and competitive process for property procurement and disposition, consistent with the intended public benefit. (2) In approving a Project, the Board is authorized to determine that property procurement and disposition laws and regulations otherwise applicable to Projects shall not apply to a specific Project; provided that the Board shall not have the authority to limit or modify in any way: (a) the requirements of M.G.L. c. 7C, § 38; M.G.L. c. 62C, § 49A; or any certification of noncollusion in contracting; or (b) the application of any such law or regulation that by its terms applies equally to both public and private agencies or entities. The Board is authorized to require alternative property disposition or procurement measures as a condition to any Project approval, consistent with the standards set forth in 810 CMR 2.00. A determination to waive any property procurement or disposition law or regulation to require any such alternative measure shall be made in conformity with the standards of 810 CMR 2.02(1). (3) The Board is authorized to exercise all powers necessary to implement the provisions of M.G.L. c. 7B including, but not limited to, the following powers: (a) The Board is authorized to monitor Approved Projects to safeguard the public trust in accordance with 810 CMR 2.08. (b) The Board is authorized to establish Trust Funds in accordance with 810 CMR 2.09. (c) The Board is authorized to terminate any Approved Project in accordance with 810 CMR 2.10. (d) The Board is authorized to maintain records of all Approved Projects in accordance with 810 CMR 2.11. (4) The Board shall exercise its authority in accordance with 810 CMR 2.00. 10/16/20810 CMR - 6

810 CMR: DIVISION OF CAPITAL ASSET MANAGEMENT AND MAINTENANCE

2.03 Meeting and Voting Procedures

2.03: Meeting and Voting Procedures (1) The Board shall act in accordance with the procedures set forth in Robert's Rules of Order or any other recognized procedures which may be adopted by the Board; provided that in the event of a conflict between such procedures and 810 CMR 2.00, 810 CMR 2.00 shall govern, and provided further that any failure on the part of the Board to act in accordance with such procedures shall not invalidate any actions taken by the Board. (2) The Board may vote to conduct a public hearing on any Project Proposal, in addition to any public hearing which the Agency is required to conduct under 810 CMR 2.05(3) (3) No Board member shall participate in the approval of a Project or in consideration of any other matter in which the Board member or any member of his or her immediate family has a direct or indirect present or future financial interest or which would financially benefit such person in any way. Compliance with the requirements placed upon a state employee under M.G.L. c. 268A shall constitute presumptive compliance with the requirements of the preceding sentence. Any disclosure, report or other writing filed by a Board member with the State Ethics Commission under the provisions of M.G.L. c. 268A shall also be filed with the Board.

2.04 Preliminary Project Proposals

2.04: Preliminary Project Proposals (1) An Agency shall submit a Preliminary Project proposal to the Board containing sufficient information for the Board to understand the Proposed Project and make a preliminary assessment of whether the Proposed Project, including any proposed alternative property procurement or disposition methods, meets the standards for approval set forth in M.G.L. c. 7B, and 810 CMR 2.02(1). The submission shall include the following information: (a) Description of the Project. (b) Description of the Asset involved, its current use, and an explanation as to why that current use is no longer required; (c) The public purpose of the Project and the public benefits to be realized from the Project; (d) Identification of property procurement or disposition laws or regulations otherwise applicable which must be waived to accomplish the Project; (e) Description of proposed alternative property disposition or procurement requirements; (f) Financial and market information (if appropriate) to demonstrate Project feasibility; (g) List of any materials identified in 810 CMR 2.06(2) which may not be relevant to the proposed Project; and (h) Plan for public review prior to submission of the Project Proposal, including public hearing(s). (2) Following a review of any such Preliminary Project Proposal, the Board shall vote to: (a) Grant preliminary approval to such a Proposed Project, in which case the Agency may proceed with public notice and comment under 810 CMR 2.05 and submission of a Project Proposal under 810 CMR 2.06; or (b) Disapprove the Preliminary Project Proposal, in which case the Agency shall not proceed with public notice and comment under 810 CMR 2.05 or submission of a Project Proposal under 810 CMR 2.06. (3) If the Board votes to approve a Preliminary Project Proposal under 810 CMR 2.04(2), the Board may: (a) Specify additional requirements for public hearing and public notice other than those set forth under 810 CMR 2.05; (b) Waive otherwise applicable public hearing requirements in accordance with 810 CMR 2.05(4); (c) Waive Project Proposal submission requirements of 810 CMR 2.06(2); or (d) Require additional information to be submitted with the Project Proposal under 810 CMR 2.06; provided, however, that no such approval shall relieve the Agency of the requirement to submit a Project Proposal under 810 CMR 2.06; nor shall it in any way require the Board to approve or disapprove the Project Proposal. 10/16/20810 CMR - 7

810 CMR: DIVISION OF CAPITAL ASSET MANAGEMENT AND MAINTENANCE

2.04 continued

2.04: continued (4) The provisions of 810 CMR 2.04 shall not be required for Low Impact Electronic, Communications and Telecommunications Projects or for Acquisition Projects.

2.05 Public Notice and Comment Requirements

2.05: Public Notice and Comment Requirements (1) Agencies shall, prior to submitting a Project Proposal to the Board for a Proposed Project which has received preliminary approval under 810 CMR 2.04(2), publish a Notice of Intent to Submit a Proposal (this publication requirement shall also apply to Low Impact Electronic, Communications and Telecommunications Projects and Acquisition Projects even though preliminary approval of such Projects is not required). Such notice shall include: (a) a brief summary of the Project, including a description of the Asset, the general location of any real property involved in the Proposed Project, and an estimate of the value of the Asset; (b) the location or office at which draft Project Proposals are available; (c) an invitation for public comment and, if required by 810 CMR 2.00, the date, time, and location of a public hearing on the proposal; and (d) the procedures and deadlines for submitting comments. A copy of such notice shall also be sent to each member of the Board. Notices shall also be sent, in the case of a Proposed Project involving the acquisition or disposition of an interest in real property with an estimated value greater than $100,000, to the members of the General Court in the legislative district in which the Project is located, in the case of a city under the "Plan E" form of government, to the city manager in the case of all other cities, to the mayor and the city council and in the case of a town, to the chairman of the board of selectman, the county commissioners, and the regional planning agency. (2) The Agency shall cause a Notice of Intent to Submit a Proposal to be advertised for two consecutive weeks in the Central Register and once a week for two consecutive weeks in at least one newspaper of general circulation covering the Project area. The last notice shall appear no less than seven days prior to the submission of the proposal to the Board or the conduct of a public hearing, whichever is sooner. (3) Prior to the submission of any Project Proposal for which, under the provisions of 810 CMR 2.05(1), notice must be given to members of the General Court, the Agency preparing such Project Proposal shall conduct a public hearing on the proposal in the legislative district in which the Project is located; except that the Board may vote to waive this public hearing requirement under 810 CMR 2.05(4) and such public hearing shall not be required for Low Impact Electronic, Communications and Telecommunications Projects. In the case of Acquisition Projects, the public hearing requirement shall be deemed satisfied if at least one public hearing shall have been conducted within the Proposed Project area. Board members may participate in any such hearing. The Agency conducting the hearing shall maintain minutes of the hearing which accurately reflect comments received at the hearing. The public hearing shall be conducted under any special requirements established by the Board under 810 CMR 2.04(2). (4) The Board may, waive any otherwise applicable public hearing requirement if the Board determines, based upon review of the Preliminary Project Proposal (or, in the case of an Acquisition Project, based on a review of the Proposed Project), that such a public hearing is not necessary to insure that the Proposed Project meets the standards for approval set forth in M.G.L. c. 7B and in 810 CMR 2.02(1). 2.06 Project Proposal (1) After public notice and public hearing, if applicable, an Agency may submit a Project Proposal for action by the Board. Any such Project Proposal shall include sufficient information for the Board to determine whether the Proposed Project meets the standard for approval set forth in M.G.L. c. 7B and in 810 CMR 2.02(1). 10/16/20810 CMR - 8

810 CMR: DIVISION OF CAPITAL ASSET MANAGEMENT AND MAINTENANCE

2.06 continued

2.06: continued (2) The proposal shall include, at a minimum, the following (if applicable): (a) A detailed description of the Project including:

  1. the Asset involved and, in the case of a disposition, its current use;
  2. anticipated public benefits to be realized from the Project;
  3. anticipated publicly paid capital and operating costs, and the source of funds for such costs;
  4. estimated revenues, their sources and application;
  5. the anticipated market for the property procurement or disposition;
  6. private sector participation required for the Proposed Project and the feasibility of obtaining such participation;
  7. a schedule for implementation showing major milestones and completion dates; and
  8. performance measures to determine the success or failure of the Proposed Project. (b) An inventory of the Agency's Assets, identifying those that are underutilized. The inventory must be current within one year of the submission, describe the method used to compile the inventory, and specify the measures employed to determine which Assets are underutilized. In the case of an Acquisition Project, the Agency shall identify any Agency Assets that are underutilized and might be appropriate for use in lieu of the proposed Asset to be acquired. If the Proposed Project is limited to one or more specific institutions or facilities, the inventory may be limited to the Assets contained at such institutions or facilities. (c) In the case of a Proposed Project involving real property, certification by the Commissioner that the Commissioner has received a copy of the inventory and that the Commissioner believes the inventory to be accurate and current. The Commissioner shall also certify that the Proposed Project does not conflict with the current and foreseeable needs of any Agency or, if there is a conflict with the needs of any Agency, shall identify the conflict and recommend whether the Board should approve the Project notwithstanding such conflicts. (d) Certification by the secretary of the executive office within which the proposing Agency is located (or the Board of Higher Education for Agencies under its jurisdiction) that the office has reviewed and approved the Proposed Project. (e) A copy of all comments received as a result of the public comment process and minutes of any hearing held pursuant to 810 CMR 2.05, and the Agency's response to such comments, including changes made in the Project Proposal, if any. (f) In the case of a Proposed Project involving the disposition of an interest in real property, an independent appraisal of the property, conducted within one year of the submission, for both the highest and best use and the Proposed Project use, if different, taking into consideration the terms of the proposed disposition, and describing the methods and assumptions employed to make the appraisal. A current assessment of value conducted by or on behalf of DCAMM’s Office of Real Estate Management shall satisfy this requirement for Low Impact Electronic, Communications and Telecommunications Projects. A market assessment conducted by or on behalf of DCAMM shall satisfy this requirement for Acquisition Projects. (g) A description of the specific laws and regulations which conflict with the Proposed Project and the manner in which utilizing alternative procedures will ensure an open and competitive process for the procurement or disposition. This shall include, at minimum, provisions for: advertising the time and place at which the request for proposals may be obtained, the time and place for submission of proposals, and the nature and scope of the Project; providing all interested parties with information, sufficient to develop a responsive proposal; establishing and following an evaluation process which ensures fair treatment of all proposers; and providing all interested parties with the proposal evaluation criteria which will be utilized to judge proposals. (h) A statement of the Agency's plan to provide ongoing information required to assist the Board in its monitoring responsibilities, as detailed in 810 CMR 2.08. 10/16/20810 CMR - 9

810 CMR: DIVISION OF CAPITAL ASSET MANAGEMENT AND MAINTENANCE

2.06 continued

2.06: continued (i) Identification of the Agency responsible for Project implementation, the name and title of the official responsible within the Agency, and the qualifications of said official and other key personnel who will be assigned to insure successful implementation. If the Agency will require contracted services to assist in the implementation, the proposal shall include a description of the services to be procured. (j) Copies of any reports, analyses, or studies employed in the development of the Project Proposal and a description of the methods used therein. (k) If the Project Proposal includes a request for authorization to establish a Trust Fund under 810 CMR 2.09, the request must include the following:

  1. the specific purpose for which the Trust Fund would be established,
  2. projected revenues and expenditures from the Trust Fund for the first five years,
  3. identification of the beneficiaries of the Trust Fund, and
  4. a recommendation by the Secretary of Administration and Finance recommending the establishment of such Trust Fund. (l) Identification of any private individual or entity involved in the preparation of the Project Proposal other than through the public comment process and disclosure of the nature and extent of such involvement. (m) Any other information deemed pertinent by the Agency or previously requested by the Board in the preliminary review. (3) A complete submission by an Agency shall consist of one original and one copy in a version acceptable to the Commissioner of DCAMM of all documents required by 810 CMR 2.00 which shall be delivered to the Board in care of the Office of Real Estate Management, DCAMM, One Ashburton Place, 15 th Floor, Boston, MA 02108.
2.07 Project Approvals

2.07: Project Approvals (1) Votes on a Project Proposal shall take one of the following forms: (a) approval of the Project and establishment of alternative property procurement and disposition procedures; (b) disapproval of the Project; or (c) request that the Agency submit a modified Project Proposal. The Board may condition approval of a Project on modifications specified by the Board. (2) In voting to request that an Agency submit a modified Project Proposal, the Board shall determine whether the modification is of such significance so as to require the Agency to comply with the provisions of 810 CMR 2.05 regarding public notice and public hearings. (3) All decisions of the Board under 810 CMR 2.07(6) shall be published in the Central Register within 14 days of the Board's action. No binding agreements to implement the Project shall be executed prior to seven days after publication of such notice. (4) The proposing Agency and its employees, agents and contractors shall be responsible for complying with all applicable property procurement and disposition laws and regulations not specifically identified in the Project Proposal and not specifically waived by the Board in approving the Project. Without limiting the generality of the foregoing sentence, for any Approved Project which includes a Contract or Contracts, any such Contract shall be awarded in conformity with all applicable property procurement and disposition laws and regulations not specifically waived by the Board. The Board may waive any property procurement or disposition laws or regulations applicable to any Approved Project retroactive to the date of approval of the Project by the Board, upon a written finding by the Board that such a retroactive waiver does not constitute a significant change to the Project as originally approved by the Board. The provisions of 810 CMR 2.04 and 2.05 shall not apply to any request for a retroactive waiver, unless specifically otherwise determined by the Board. (5) The Board shall establish in writing for each Approved Project for which any property procurement or disposition law or regulation has been waived, alternative property procurement or disposition procedures consistent with standards set forth in 810 CMR 2.00. 10/16/20810 CMR - 10

810 CMR: DIVISION OF CAPITAL ASSET MANAGEMENT AND MAINTENANCE

2.08 Project Monitoring Responsibilities

2.08: Project Monitoring Responsibilities (1) The Board shall monitor Approved Projects by conducting such activities as the Board deems appropriate, which activities shall include one or more of the following: (a) periodic site visits; (b) review of annual reports submitted by the Agency under 810 CMR 2.08(2) and annual independent audits submitted by the Agency if such audits were required by the Board; and (c) periodic review of the public purposes set forth in the Project Proposal and compliance with any terms and conditions of the Project approval. (2) Each Agency with an Approved Project shall file an annual report on the progress and performance of the Project for review by the Board. Said report shall be filed within 90 days of the end of each Fiscal year. Said report shall be signed by the individual identified pursuant to 810 CMR 2.06(2)(i) as responsible for Project implementation and shall include: (a) a review of the planned and actual performance of the Project for each of the items included in the Project Proposal under the provisions of 810 CMR 2.06(2)(a); (b) an explanation of any deviations between the planned and actual performance; (c) identification of any modifications in the Project anticipated to be necessary and the reasons therefor; and (d) identification of the parties to any contract awarded pursuant to the Project authorization, together with the value and term of the contract. (3) The Board shall review the annual reports and other materials submitted pursuant to 810 CMR 2.08. The Board shall also notify the Agency of any specific respects in which the report does not comply with requirements of this 810 CMR 2.08(2) and any specific approvals voted by the Board, and may require an Agency to submit additional information. (4) An Agency shall promptly report to the Board any change in the identification of the individual identified pursuant to 810 CMR 2.06(2)(i) as responsible for Project implementation. (5) All Agencies shall cooperate with the Board and its staff in its Project monitoring activities. (6) Any agreement executed to implement a Approved Project shall contain provisions granting the Board reasonable access to records and information necessary to adequately monitor the Project. (7) For any Approved Project which includes one or more Contracts, the proposing Agency shall be responsible for obtaining information from any private individual or entity necessary for the Board to fulfill its monitoring obligations under 810 CMR 2.08. The failure of the proposing Agency or of the Board to fulfill its monitoring obligations hereunder shall not affect the rights of any private party under any such Contract. Every Contract shall specify that the failure of any private individual or entity upon written request to provide the Board or Agency material information necessary to permit the Board to fulfill its monitoring obligations pursuant to 810 CMR 2.08 shall be deemed a material breach of the private individual or entity's obligations under the Contract and may constitute grounds for termination of the Contract by the Commonwealth.

2.09 Trusts

2.09: Trusts (1) Following review of an Agency request under 810 CMR 2.06(2)(k), the Board may vote to authorize a Trust Fund to be established by the State Treasurer to receive 50% of the proceeds accruing to an Agency from an Approved Project. The administrator in charge of the proposing Agency shall serve as the sole trustee of any such Trust Fund and shall utilize the Trust Fund for administration of the Approved Project and to otherwise advance the purposes of the Agency. All expenditures from the Trust Fund shall require the authorization of such administrator and the approval of the Secretary of Administration and Finance and shall conform to standard state accounting procedures and to such further requirements as may be prescribed from time to time by the comptroller. Each Agency which administers a Trust Fund hereunder shall report annually to the House and Senate Committees on Ways and Means, within 90 days after the end of each Fiscal Year, as to the amount of funds received in and expenditures made from any Trust Fund during the Fiscal Year. 10/16/20810 CMR - 11

810 CMR: DIVISION OF CAPITAL ASSET MANAGEMENT AND MAINTENANCE

2.10 Termination

2.10: Termination (1) The Board may terminate any Approved Project if it finds that the Project no longer serves the public purpose justifying its approval by the Board, or that approval was based on information which was substantially incorrect or materially misrepresented, provided that: (a) such termination takes place only after careful review of the Project objectives, the Project's contribution to the public purpose justifying its approval to the Board, and the potential consequences of termination; and (b) no such termination shall affect the rights of any private party to any Contract, unless such termination is a result of the fraud, material misrepresentation or material breach of such private party. (2) Nothing in 810 CMR 2.00 shall be construed to limit the right or responsibility of an Agency to cancel any Approved Project before Contracts have been executed, or to terminate any Contract for a Project under the terms of that Contract. Any Agency taking such action shall, within 30 days, notify the Board of such cancellation or termination and the reasons therefor. No right of recovery under contract or under any other theory of liability shall accrue to a private party arising out of a Proposed Project prior to the final approval of an Approved Project by the Board, pursuant to 810 CMR 2.07(1), or prior to the execution of a written Contract signed by the public official(s) with authority to bind the Commonwealth thereto. (3) Board approval for any Approved Project shall automatically terminate upon the occurence of either of the following events: (a) failure to commence implementation of an Approved Project as submitted under 810 CMR 2.06(2) within one year of the date of Board approval; or (b) interruption for a period of one year of implementation of an Approved Project which has timely commenced. The Board may vote to reinstate any Approved Project for which approval has automatically terminated pursuant to 810 CMR 2.10(3).

2.11 Severability

2.11: Severability (1) If any article, section, subsection, sentence, clause, or phrase, of 810 CMR 2.00 is for any reason held to be unconstitutional, contrary to statute, in excess of the authority of the Board, or otherwise invalid, the remainder of 810 CMR 2.00 shall continue in full force and effect and shall not be affected thereby. REGULATORY AUTHORITY 810 CMR 2.00: St. 1990, c. 150, § 220; and M.G.L. c. 7B. (PAGES 13 AND 14 ARE RESERVED FOR FUTURE USE.) 10/16/20810 CMR - 12

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