Legal Terrain

Those of us who had the good fortune to vacation on Cape Cod as children in the 1960s or 1970s remember a fabulous vacation escape with miles of pristine beaches, cozy cottages, souvenirs, and wonderful food. Many who vacationed on the Cape as children or young adults now claim the quaint villages and vacation communities along the Cape as their retirement homes. For those of us who have not been back on the Cape for some time, the New York Times article that greeted us on New Year’s Day 2023 was startling, even heartbreaking.

In its article, “A Toxic Stew on Cape Cod:  Human Waste and Warming Water,” the Times described a nutrient-loaded toxic mix from inground septic systems. These systems serve a growing number of single and multifamily retirement homes and businesses, whose wastewater flows through septic systems to the groundwater, ultimately finding its way to coastal ponds. The result is toxic algae blooms caused by nutrients, such as nitrogen and phosphorous, which are not filtered out by the soil on their way to the coastal ponds all along the Cape

Some communities on Cape Cod require upgrades of backyard septic systems capable of removing nutrients, an expensive option for homeowners. Others are evaluating options to build sewage collection systems and modern wastewater treatment plants to service homes and businesses with septic systems at significant costs.

Many states in the northeast have pursued alternative project procurement methods available under state law. These methods go well beyond traditional design-bid-build procurement methods, which separately contract for engineering design of the wastewater treatment system and require a separate bid process for construction of the facilities, with operations often left to local government. The range of alternative methods available includes design-build-operate and design-build-finance-operate project procurement methods. In each case, the municipality or other government entity retains ownership of the facility, while the agreement with the construction firm sets the construction costs. Similarly, long-term operating costs, subject to specified increases over time, are established and controlled. The municipality can look to the contractor and private operator to maintain predictable costs for construction and operations for the community and system users.

In recent years, the Commonwealth has provided flexibility under the Massachusetts General Laws Chapter 149A, to pursue alternative procurement methods for public infrastructure projects, including design-build and construction management at risk, procured based on best-value evaluation of proposals rather than a traditional low-bid basis for the award of a contract. These alternative procurement methods also allow consideration of an array of technologies to address unique conditions and treatment challenges, like those faced on Cape Cod.

For decades, other states have successfully used these alternative procurement methods to deliver major water, sewer, education, and other public facilities. As environmental requirements become more and more challenging, such as limits on nutrients and soon PFAS, these alternative procurement approaches will be well worth considering.