Bid Protest 101

Construction contractors and suppliers should understand their right to challenge the award of any public construction contract that they believe has been denied to them in violation of the public bidding laws of the Commonwealth.   These challenges are referred to as “bid protests,” and are governed in Massachusetts by several different statutes, each of which apply to a specific scope of work within the realm of public construction and procurement.

The process for bidding on contracts with local governmental bodies to procure supplies and services, or to acquire or dispose of real property, is found in Chapter 30B of the Massachusetts General Laws.   If the contract calls for both supplies and labor to be furnished on a local public works project, then the contract bidding process will be governed by Chapter 30, Section 39M.   If the contract is for construction services on a public building that costs more than $100,000, then the contract bidding process will typically be governed by Chapter 149A, Sections 44A-44J.

The Commonwealth’s Office of the Inspector General (OIG) is empowered to review and issue non-binding decisions on bid protests filed on Chapter 30B projects.   The Office of the Massachusetts Attorney General employs a “Bid Protest Unit” to review protests filed under Chapters 30 and 149A.   Complaints to either the OIG or the Attorney General’s Office may be submitted by any interested party — an aggrieved vendor, a public official, even a concerned citizen — and both agencies utilize substantially similar procedures for reviewing alleged defects in the bidding and contract award process (including the holding of an informal hearing, if such is determined as necessary). Although bid protest decisions issued by the OIG and Attorney General’s Office are “non-binding,” and aggrieved vendors may still file suit in Superior Court, many vendors and public authorities accept the decisions of the OIG and the Attorney General as a type of expert opinion that is unlikely to be overturned in Superior Court.

Bid protests are typically submitted on the basis that the project in question was not awarded to the “lowest responsive and responsible bidder.”   A responsive bidder is one who has submitted a bid or proposal for work which conforms in all material respects to the invitation for bids or request for proposals.   The procurement officer may waive “minor informalities,” when considering the responsiveness of a bid, but no bid form requirements mandated by statute (i.e. state law) may be waived.   A responsible bidder is one who possesses the skill and integrity to complete the contract requirements in good faith.   This skill and integrity is typically assessed by reviewing information on past projects performed by the vendors applying for the contract, as well as licensing and disciplinary information.     As a general rule, the determination of bidders’ competence is left to the discretion of the awarding authority, absent a showing that he or she has acted illegally, arbitrarily or in bad faith.

As noted above, any aggrieved vendor has standing to bring a civil action challenging the award of a contract in violation of public procurement law.   Because of the unique remedy sought by bid protestors —typically injunctive relief delaying the start of contract performance and, eventually, vacating the original award in favor of a more responsive and or more responsible contractor — the timeliness of lodging a bid protest is crucial, and should be done as soon as possible after the awarding authority has released the bid proposal information from vendors or contractors.

IIf you are a vendor with questions about submitting a procurement bid, or reviewing a recent procurement bid award, please contact the attorneys at Mirageas & Avery, LLC.