By: Scott K. Semple, Esq. and Adam J. Reese, Esq.
Davagian Grillo & Semple LLP
As described in Revoli Construction Co., Inc. v. City of Quincy, Decision on Motion for Preliminary Injunction, Norfolk Superior Court C.A. No. 1882CV00566, the City of Quincy issued an invitation to bid on a water main improvement project in April 2018, which split the bidding into two phases. Phase A was for water main improvements in one part of Quincy, and Phase B was for such improvements in another part of the City. Bidders were permitted to submit bids for one or both phases. The bid documents specified that if the same bidder was low for both Phase A and Phase B, the City reserved the right to award one of the two contracts to the second-low bidder if it was “in the best interest of the City of Quincy to do so...”
A recent bid protest decision from the Massachusetts Attorney General’s Bid Protest Unit also addresses an awarding authority’s obligations when rejecting a low bidder. In a matter captioned In re: Town of Mashpee Paving and Catch Basin Adjustment Contract, Attorney General Bid Protest Decision (August 8, 2018), the Town of Mashpee rejected the low bidder based on a negative reference. The person giving the negative reference was not listed as one of the five references on the low bidder’s bid form, and the Town did not give the low bidder notice of the negative reference or an opportunity to rebut the negative reference. The Bid Protest Unit found that “the Town erred in not giving notice or an opportunity for the [low bidder] to respond to a negative reference and thus, its decision that the [low bidder] was not a responsible bidder was arbitrary.” The Bid Protest Unit also held that M.G.L. c. 30, § 39M “requires that the contract should be awarded to the lowest responsible bidder and the awarding authority should not compare bidders and award [to] the most responsible or qualified bidder.”
The awarding authorities’ motivations in these two cases are unknown. However, it is not unheard of for an awarding authority to craft an unfair rationale for rejecting a low bidder when its favored contractor is the second-low bidder. Anytime a low bid is rejected on questionable grounds, the low bidder can avoid having the contract slip away by seeking an injunction in court or a bid protest decision from the Attorney General’s office. Consult counsel to determine the best avenue on a case-by-case basis.