EOI for HIC Arbitrators 9.3.2024..pdf

The Commonwealth of Massachusetts

Office of Consumer Affairs and Business Regulation

501 Boylston, Suite 5100

Boston, MA 02116

Expression of Interest (EOI)

Date: 9/3/24 Document Title: Call for Arbitrators

Agency Document Number: EOI-FY25-BIDPKG1522764 COMMBUYS Bid#: BD-25-1090-SCA01-SCA01-107025

THIS EOI AND ALL RESPONSES HERETO SHALL BECOME PUBLIC RECORD AND CAN BE

OBTAINED FROM THE OFFICE OF CONSUMER AFFAIRS AND BUISNESS REGUALTION.

ANY PORTIONS OF A RESPONSE THAT ARE LABELED AS CONFIDENTIAL WILL STILL BE

CONSIDERED PUBLIC RECORD.

1. General Information

a. General Information

Requesting Agency: Office of Consumer Affairs and Business Regulation (“OCABR,” the “Office,” or the “Agency”)

Address: 501 Boylston Street, Suite 5100, Boston, MA 02116 Contact: Clinton Dick Telephone: (857) 286-2232 E-Mail Address: Clinton.Dick@mass.gov

This Expression of Interest (“EOI”) is issued solely for the purpose of obtaining information. Nothing in this EOI shall be interpreted as a commitment on the part of the Commonwealth to enter into a contract with any Respondent. This EOI does not commit the Commonwealth of Massachusetts (“Commonwealth”) or OCABR to approve a Statement of Work (“SOW”), pay any costs incurred in the preparation of a Respondent’s response to this EOI or to procure or contract for products or services. OCABR may (i) accept or reject any and all proposals received as a result of this EOI; (ii) negotiate with one or more of the qualified Respondents; or (iii) cancel, in part or in its entirety, this EOI if it is in the best interest of the Commonwealth to do so.

OCABR may amend this EOI at any time prior to the date the responses are due. Any such amendment will be posted to the Commonwealth’s procurement website, COMMBUYS (www.commbuys.com).

b. Eligible Respondents

Description of eligible respondents

1. Arbitration Experience: at least one (1) of the following:

a. Minimum of 3 years of legal experience; or

b. Affiliation with and accountability to a dispute resolution organization in existence for at least 3 years; or

c. Appointment to arbitrate by a judicial or governmental body for at least 3 years.

2. Demonstrated ability in dispute resolution.

3. Must own or have access to a portable digital recorder to record hearings.

4. Arbitrators will notify the parties of the date/time of the arbitration hearing, and conduct any necessary communications with the parties to ensure a smooth arbitration hearing takes place.

5. Arbitrators are required to host the arbitration hearing and ensure that they successfully record their arbitration hearings, independent of OCABR, per 201 CMR

14.13 (3), and submit an audible hearing recording on an accessible electronic format to OCABR to ensure compliance with the Massachusetts Public Records law and regulations. The recording must be labeled with the arbitrator’s name, case number, and date of hearing.

5. Must have ability to scan and send documents electronically.

6. Must have a valid email address and phone.

c. Event Calendar

All times in this EOI are prevailing Eastern Time. Responses to this EOI will be accepted on a rolling basis and will be evaluated upon receipt by OCABR. In order to be evaluated. Because OCABR is accepting bids on a rolling basis, no dates are shown.

d. Applicable Procurement Law

This is an EOI and will not result in a contract between any Respondents and OCABR. It is not subject to the Commonwealth’s procurement laws.

2. Description or Purpose of Procurement

This EOI will establish a list of approved arbitrators that will be available to arbitrate disputes between consumers and registered contractors and subcontractors, as specified under M.G.L. c. 142A and 201 CMR 14.00. OCABR oversees the general management of residential contracting arbitration cases, including, but not limited to, appointing arbitrators, administering trainings to the arbitrators, and answering any questions the arbitrator may have during the pendency of the arbitrator matter.

Arbitrators will resolve disputes between consumers and registered contractors and subcontractors by issuing a determination through procedures outlined in 201 CMR 14.00.

Homeowners and contractors are responsible for paying the arbitrators directly for their services (OCABR will not be responsible for receiving or remitting payments related to the arbitration program). The following is the fee schedule for the arbitration program, which is based on the amount of damages the homeowner or contractor is seeking:

Current rate through December 31, 2024 are:

Amount of Claim Arbitrator Fee Up to $1,999 $150 Up to $4,999 $300 $5,000 to $9,999 $350 $10,000 to $24,999 $450 $25,000 to $49,999 $600 $50,000 + $850

Starting on January 1, 2025, the rates will change to the following:

Amount of Claim Arbitrator Fee Up to $9,999 $500 $10,000 to $24,999 $750 $25,000 to $49,999 $1,000 $50,000 + $1,250

a) Arbitrator Appointment: The OCABR will appoint an arbitrator from the approved list for an accepted case. All arbitration hearings take place via Teams videoconferencing or by other means as designated by OCABR’s home improvement contracting program coordinator. Claims amounting to less than $10,000 will be arbitrated through a written hearing. While there is a presumption that non-written hearings will take place virtually, a hearing may also take place in-person. An in-person hearing must take place in a neutral location that accommodates the geographic and time of day needs of the parties. Appointment to the pool will not constitute any guarantee that an arbitrator will be entitled to be assigned to some minimum number of cases or any at all.

While the choice of the arbitrator is not subject to the approval of the parties to the arbitration, if r if the arbitrator has been the claimant or respondent to any action pursuant to M.G.L. c. 142Aand 201 CMR 14.00, the arbitrator must disclose this fact to the parties prior to the hearing. Either party then has the option to request another arbitrator.

b) Arbitrator Duties: Arbitrators must apply the standards set out in M.G.L. c.

142Aand 201 CMR 14.00, and issue typed decisions with findings of fact that provide a basis for their decisions. The decision shall contain a finding of facts, and a clear calculation of the monetary award if any. In cases where the homeowner prevails, the arbitrator shall determine the homeowner’s actual loss according to 201 CMR 14.14, if any, and include the calculation in the decision.

Arbitration must be conducted in a manner which allows for a full and fair proceeding, even if a party is not represented by counsel. Arbitrators are required to host the arbitration hearing, record the hearing as required by 201 CMR 14.13

(3) and provide an audible copy of the recording to OCABR per the Mass. Public Records law to comply with public records requests, and any litigation arising from the matter following arbitration. Arbitrators must ensure the personal objectivity and impartiality of the arbitration process and may not have any personal interest in the outcome of the hearing, nor hold any prejudice or bias toward any party or participant. Arbitrators may be subject to training sessions specific to the provisions of M.G. L. c. 142A and 201 CMR 14.00 every 3 or more years.

3. Estimated Start Date; Contract Term

It is anticipated that any selected Respondents should be available to begin performance on or about November 1, 2024. OCABR may elect to establish an alternative start date as needed.

The estimated term of availability under this EOI shall consist of an initial term of approximately 1 year with the option to remain on the approved list based on satisfactory performance.

4. Performance and Business Specifications:

Specifics of services requested

Arbitrators must conduct fair and impartial hearings according to the standards of M.G.L. c.

142A and 21 CMR 14.00. Arbitrators are responsible for hosting hearings and issuing typed decisions. In cases where no party’s claim exceeds $10,000, there is a presumption of a written hearing in which the dispute shall be resolved by the submission of documents. Otherwise, hearings will be conducted via Teams, or in-person. Arbitrators must have the technical capacity to host hearings. Hearings are conducted by a single arbitrator and are limited to four hours. The arbitrator is responsible for recording the hearing and providing a copy to OCABR as the official record. Arbitrators must issue typed decisions within fourteen business days of the close of the hearing. Decisions must include a finding of fact and calculations of any actual loss to the homeowner and any monetary award. Determinations of a homeowner ’s actual loss must be made in accordance with 21 CMR 14.14. Arbitrators are authorized to award contractual damages, consequential damages, arbitration fees, and punitive damages. An arbitrator may not award attorney’s fees.

5. Additional Specifications

a. Respondent Questions. Potential Respondents who have questions regarding this EOI may submit them via COMMBUYS or email them to Clinton Dick at Clinton.Dick@mass.gov. Respondents may only make inquiries and request clarification concerning this EOI by written questions via e-mail. All responses to inquiries and clarification questions will also be provided electronically to all interested parties via a posting on COMMBUYS.

b. Response Submission. Respondents should submit one (1) electronic copy via

COMMBUYS or e-mail to Clinton Dick at Clinton.Dick@mass.gov. All responses must include on the first page the official name (if any) of the firm or entity submitting the response. Please consecutively number all pages of the response.

mailto:Clinton.Dick@mass.gov

c. No Reimbursement. By submitting a response, Respondents agree that any cost incurred in responding to this EOI, or in support of activities associated with this EOI, shall be the sole responsibility of Respondent. The Commonwealth shall not be held responsible for any costs incurred by Respondents in preparing their respective responses to this EOI.

d. Response Content. Vendors should include a response to each of the questions set forth in Section 7 of this RFI.

e. Response Format. The Commonwealth requests that all responses be submitted with a point-by-point response to each numbered subsection set forth in Section 5 above and Section 10 below. If a Respondent opts not to respond to any item(s) that subsection, please note and if possible, include an explanation for the lack of response.

f. Pending Litigation. Respondent must affirm that there is no pending litigation involving the Respondent, Provider, or the services provided in the response that may impair or interfere with the availability of any services. Respondent must warrant that there are no actual or threatened actions arising from or alleged under any intellectual property rights of any third party.

g. Review Rights. Responses to this EOI may be reviewed and evaluated by any person(s) at the discretion of OCABR, including non-allied and independent consultants retained by OCABR for the sole purpose of evaluating and analyzing responses.

h. Environmental and Climate Preferable Products. In 2009, Executive Order 515, establishing an Environmental Purchasing Policy for Executive Departments, was signed. View the Environmentally Preferable Products (EPPs) Procurement Program General Information, Requirements and Guidance for detailed information about the program at https://www.mass.gov/doc/epp-general-information-requirements-and-guidance/download.

Respondents also should be aware that in 2021, Senate Bill 9 - An Act Creating a Next Generation Roadmap for Massachusetts Climate Policy was signed to achieve Net Zero emissions in 2050 and furthers the Commonwealth’s efforts to combat climate change and protect vulnerable communities. The full Act may be viewed at https://malegislature.gov/Bills/192/S9. In 2021, Executive Order 594, Leading By Example: Decarbonizing and Minimizing Environmental Impacts of State Government, was signed. EO594 requires all eligible state agencies to assess and implement strategies to mitigate greenhouse gas emissions and other environmental impacts when planning for and executing projects related to the design, construction, operations, and maintenance of state facilities, and the procurement of goods and services, including vehicles. View EO594: Leading By Example requirements at https://www.mass.gov/executive-orders/no-594-leading-by-example-decarbonizing-and-minimizing-environmental-impacts-of-state-government.

For more information please visit https://www.mass.gov/environmentally-preferable-products-epp-procurement-program or https://www.mass.gov/handbook/environmentally-preferable-products-and-services-https://www.mass.gov/executive-orders/no-515-establishing-an-environmental-purchasing-policy https://www.mass.gov/doc/epp-general-information-requirements-and-guidance/download https://www.mass.gov/doc/epp-general-information-requirements-and-guidance/download https://malegislature.gov/Bills/192/S9 https://www.mass.gov/executive-orders/no-594-leading-by-example-decarbonizing-and-minimizing-environmental-impacts-of-state-government https://www.mass.gov/executive-orders/no-594-leading-by-example-decarbonizing-and-minimizing-environmental-impacts-of-state-government https://www.mass.gov/environmentally-preferable-products-epp-procurement-program https://www.mass.gov/environmentally-preferable-products-epp-procurement-program https://www.mass.gov/handbook/environmentally-preferable-products-and-services-guide guide.

6. Respondent Responses

All Respondent responses can be submitted to Clinton.Dick@mass.gov via email or via COMMBUYS and must include the components described herein.

By submitting their response, the Respondent agrees to the terms of the EOI. In addition, by submitting their response, the Respondent affirms that there is no pending litigation involving the Respondent or the services provided in the response that may impair or interfere with OCABR right to use the services.

All materials submitted to OCABR during this EOI process become the property of OCABR upon their receipt and will not be returned. Except as provided in the Massachusetts Public Records Law, all materials submitted to OCABR may be subject to release as public records. In no event shall OCABR, or any of their agents, representatives, consultants, directors, officers, or employees, be liable to a Respondent for the disclosure of all or a portion of a response or related information submitted during this EOI.

7. Evaluation Criteria

The responses to this EOI will be reviewed based on the criteria listed below.. OCABR may remove from further consideration non-responsive responses and responses that do not include all items listed below. Prior to such an exclusion, OCABR may request one or more clarification(s) from Respondents. A Respondent’s response may be excluded for failure to meet the OCABR’s thresholds.

Minimum requirements:

1. Overview: Name and contact information for this quote including email and phone number.

2. Experience: Briefly describe your relevant legal experience and any arbitration or dispute resolution experience you may have.

3. Examples: Provide two examples of successfully executed events.

4. Qualifications: Provide a resume and describe your qualifications for the requirements of this position, including the technological requirements.

OCABR reserves the right to consider any previous experience the Respondent has had with any State agency, including, but not limited to, performance problems and compliance with applicable laws and contract provisions.

Submission of Responses: Respondents applying for inclusion on the list of pre-qualified arbitrators must submit the following:

□ A cover letter outlining his/her qualifications as specified in the EOI;

□ A resume detailing his/her arbitration and dispute resolution experience;

□ *An identification of the following geographic region (MA Counties) in which he/she will be available for in-person hearings, when needed: Barnstable, Berkshire, https://www.mass.gov/handbook/environmentally-preferable-products-and-services-guide

Bristol, Dukes, Essex, Franklin. Hampden, Hampshire, Middlesex, Nantucket, Norfolk, Plymouth, Suffolk, Worcester; and

□ *An estimate of the number of arbitration cases for which he/she would be available to serve during a calendar year.

NOTE: The Office anticipates providing approximately 50-70 arbitration hearings per calendar year.

*These required items may be in narrative form. Please include in a cover letter or on a separate sheet.

Any submission which fails to meet the submission requirements of the EOI will be found non-responsive without further evaluation unless the evaluation team, at its discretion, determines that the non-compliance is insubstantial and can be corrected. In these cases, the evaluation team may allow the vendor to make minor corrections to the submission. Please note that selection by OCABR to participate as an arbitrator does not guarantee that an arbitrator will be given any number of cases to actually arbitrate. OCABR reserves the right to choose selected arbitrators on a case-by-case basis.

ATTACHMENT B – COMMBUYS Instructions

Interested Respondents may submit their response using COMMBUYS.

Useful links:

1. Job aid on how to submit a quote: https://www.mass.gov/doc/how-to-create-a-quote-in-commbuys/download

2. Webcast: How to Locate and Respond to a Bid in CommBuys, which will familiarize Respondents with CommBuys terminology, basic navigation, and provide guidance for locating bid opportunities in CommBuys and submitting an online quote.

3. Respondents MUST have their complete bid fully loaded and submitted prior to the time and date listed in the calendar. COMMBUYS will not allow for bids to be submitted after the posted time.

Bidder may contact the OSD Help Desk at osdhelpdesk@mass.gov or call during normal business hours (8AM – 5PM, Monday – Friday) at 1-888-627-8283 or 617-720-3197.

Written questions via the Expression of Interest Q&A on COMMBUYS The “Expression of Interest Q&A” provides the opportunity for Respondents to ask written questions and receive written answers from the SST regarding this Expression of Interest. Respondents’ questions may be submitted through the Expression of Interest Q&A tab in COMMBUYS or via e-mail(see below for instructions). It is the Respondent’s responsibility to verify receipt of questions.

To reduce the number of redundant or duplicate questions, Respondents are asked to review all questions previously submitted to determine whether the Respondent’s question has been posted.

Respondents are responsible for entering content suitable for public viewing, since all the questions are accessible to the public. Respondents must not include information that could be considered personal, security sensitive, inflammatory, incorrect, collusory, or otherwise objectionable, including information about the Respondent’s company or other companies. The SST reserves the right to edit or delete any submitted questions that raise these issues or that are not in the best interest of the Commonwealth or this Bid.

All answers are final when posted. Subsequent revisions to previously provided answers will be dated.

It is the responsibility of the prospective Respondent and awarded Respondent to keep current the email address of the Respondent’s contact person and prospective contract manager and to monitor that email inbox for communications from the Agency, including requests for clarification. The Agency and the Commonwealth assume no responsibility if a prospective Respondent’s/awarded Respondent’s designated email address is not current or if technical problems, including those with the prospective Respondent’s/awarded Respondent’s computer, network, or internet service provider (ISP), cause email communications sent to/from the prospective Respondent/Awarded Respondent and the Agency to be lost or rejected by any means, including email or spam filtering.

https://www.mass.gov/doc/how-to-create-a-quote-in-commbuys/download https://www.mass.gov/doc/how-to-create-a-quote-in-commbuys/download https://www.youtube.com/watch?v=IG7XDNk4-U0 mailto:osdhelpdesk@mass.gov

Locating Bid Q&A Log into COMMBUYS, locate the Bid, acknowledge receipt of the Bid, and scroll down to the bottom of the Bid Header page. The “Bid Q&A” button allows Respondents access to the Bid Q&A page.