on January 9, 2018
The Massachusetts Attorney General’s Bid Protest Unit (“AG”) recently decided that when an awarding authority seeks references not listed by the sub-bidder, it must give the sub-bidder the opportunity to respond when such reviews are negative.
In the case, the Barre Housing Authority (“BHA”) sought public bids for a panel replacement project. BHA checked the references for the low sub-bidder, but also reached out to an unlisted public entity for which the sub-bidder had previously performed work. That public entity gave the sub-bidder a negative review, which caused BHA to reject the low sub-bidder’s bid.
The sub-bidder filed a bid protest. Pursuant to Massachusetts public bidding laws the AG’s office conducted an investigation and held a hearing. The AG decided that while BHA reaching out to references not listed by the sub-bidder was not improper, by doing so they implicitly created an obligation to offer the sub-bidder a chance to rebut the negative reference.
The AG ordered BHA to reconsider its decision to reject the low sub-bidder, in light of the ruling. Should you have questions concerning your rights as a bidder, you’d be well-advised to consult with an experienced construction attorney versed in public bidding protests.
on February 22, 2016
In a recent decision, the Massachusetts Attorney General’s Bid Protest Unit ruled that in certain circumstances a prime or general bidder on public construction projects can use the experience and qualifications of a subcontractor to meet the requirements of the project specifications.
The case, In re Department of Mental Health, Attorney General Bid Protest Decision (February 19, 2016), involved bid documents that required bidders to have at least five years of experience with smoke and fire damper maintenance. The protester argued that the general contractor submitting the low bid did not have such experience. In rejecting the protest, the hearing officer found that the low bidder’s subcontractor’s experience met the qualification.
The ruling is expressly limited to unique circumstances. The word “bidder” usually is limited to the general or prime bidder in public construction. Here, however, the bid documents stated that a sub-bid is called a “bid.” It appears that future bid documents will need similar language for the general or prime bidders to be able to rely on subcontractors’ experience in meeting the requirements for bidders. Our Massachusetts construction lawyers will continue to monitor the impact of this decision.