Prince Lobel Tye Construction Law Group Successful In Three Recent Bid Protests

Client Alerts · May 22, 2017

Prince Lobel Construction Law Group chair Hugh Gorman has had great success over the past few months on three separate bid protest matters before the Bid Unit, Fair Labor Division of the Massachusetts Office of the Attorney General and in Massachusetts state court.

Bid Protests Generally

The public bidding laws in Massachusetts permit a public bidding dispute relating to horizontal or vertical construction to be heard via a “bid protest” before either the Attorney General’s Office or in Superior Court.  Matters brought before the Attorney General’s Office involve an investigative hearing pursuant to G.L. c. 149, §44H to determine whether a violation of bidding laws and procedures occurred.  If a violation is found, the Attorney General’s Office will instruct the awarding authority on how to correct the bidding discrepancy, whether by directing to whom the contract should be awarded or by ordering a rebid.  Parties aggrieved by a decision of the Attorney General can appeal it by commencing an action in the Massachusetts Superior Court.

Three Bid Protests

On behalf of our client, Prince Lobel initiated the first protest, contending that the failure of an awarding authority (“AA”) to advise potential bidders of its estimated value for each item of work being bid constituted a violation of bidding laws.  Prince Lobel argued that without such information, prequalified bidders could not determine whether their contract limits were sufficient to bid on the work in question or whether they needed to request a waiver from Mass DOT to allow them to bid above their single-project limit.  The Attorney General’s Office ruled in favor of Prince Lobel’s client and ordered the seven-figure contract to be rebid.  The decision was appealed to the Bristol Superior Court, where the court again sided with Prince Lobel’s client, effectively upholding the Attorney General’s ruling and requiring the contract to be rebid.

In the next protest, Prince Lobel’s client was the low bidder on a $2 million-plus emergency bridge deck repair contract.  The second-lowest bidder protested, contending that the Mass DOT bid specifications were ambiguous.  Prince Lobel argued that all bidders bid on the same information and that the Mass DOT bid language was unambiguous and was “permissive in nature and not compulsory.”  The Attorney General agreed, finding that the bidding specifications were transparent and not ambiguous and, on that basis, confirmed the contract award to Prince Lobel’s client.

The third protest involved the award of a Mass DOT statewide airport crack-sealing project to Prince Lobel’s client.  The protestor argued that it would have been prequalified to perform the work in question had each item of work been split into component parts and that it should have been awarded the contract as the low bidder.  Prince Lobel argued that the items of work did not have to be broken into parts and that the protestor should have sought a waiver of its single-project limit to permit it to bid; because it failed to do so, the AA was correct in not considering its bid.  The Attorney General upheld Mass DOT’s decision to award the high-six-figure contract to Prince Lobel’s client.

Conclusion

Prevailing in a bid dispute often involves the assistance of experienced construction law counsel.  Prince Lobel’s Construction Law Group stands at the ready to assist.  For more information, contact Hugh Gorman, chair, at hgorman@princelobel.com or 617-456-8093.