Bradley has been publishing an ongoing survey of state-level bid protest processes and procedures (see our posts on “Bid Protests in Georgia,” “Bid Protests in the District of Columbia,” “Bid Protests in New York,” “Bid Protests in Virginia,” and our “Update on Bid Protests in Alabama”). For the next state in this series, we focus on the bid protest procedures in Massachusetts.
What Rules Apply?
Chapter 30B of the Massachusetts General Laws, also known as the “Uniform Procurement Act,” establishes procedures for local governments when contracting for services, supplies, and real property. While there are no statutory provisions or regulations establishing an administrative procedure for bid protests under Chapter 30B, the Massachusetts Procurement Manual explicitly notes that, “[u]nder Massachusetts law, any bidder or proposer competing for a public contract can challenge the award of that contract in court on the grounds that the awarding authority did not comply with public bid laws.”
With respect to public construction contracts, however, the Massachusetts Attorney General’s Office (AGO) has specific jurisdiction over bid protests involving such contracts. Construction contractors may elect to first file a protest with the AGO or they may go straight to court.
Who May Protest?
Regarding non-construction contracts, any bidder or offeror competing for a Massachusetts public contract can challenge the award of that contract in their local jurisdiction or bring the protest directly to Superior Court.
For construction contracts, any “interested party” — including unsuccessful bidders, citizens, watchdog groups, unions, and trade associations — may file a bid protest with the AGO.
When Must a Protest Be Filed?
For non-construction contracts, there is no formal time in which a protest must be filed, because there are no statutory or regulatory provisions establishing an administrative procedure for bid protests. That said, if the protester is seeking injunctive relief via a court protest, the protest typically should be filed promptly after the basis for protest becomes known to give the protester the best chance at obtaining relief.
For construction contracts, interested parties are directed to file protests “as soon as they become aware of the issues to protect the integrity of the bidding process and safeguard against needless waste. The Bid Unit will scrutinize all protests to determine whether a delay in filing a protest, particularly when the work has already begun, should result in the denial of the protest as untimely. Complaints regarding contractor prequalification issues, such as undisclosed litigation, should be made to an awarding authority within 14 days after the prequalification process is closed and the awarding authority has release prequalification information. Contractors should not wait until after the contract has been awarded to contest prequalification issues.”
What Must the Protest Include?
Protests related to non-construction contracts must comply with the rules and procedures of the court in which the action is brought.
Protests related to construction contracts that are filed with the AGO must include (1) the name of the awarding authority against whom the protest is filed; (2) the public works/public building construction project for which bids were solicited; (3) the particular laws violated; and (4) a description of the alleged violation.
Will a Hearing Be Held?
For protests filed at court, the relevant court will determine, at its discretion, whether to hold a hearing on the protest.
For construction-related protests filed with the AGO, the AGO has the discretion to hold a hearing, and such hearings, if held, are generally held within 10 days of the protest filing. Bid protest decisions are generally issued within three weeks of the hearing.
What Are the Appeal Procedures?
AGO bid protest decisions are findings, as opposed to formal administrative decisions, and thus they are not subject to a formal appeal or review process. Parties who wish to challenge the findings made by the AGO can bring a declaratory judgement/preliminary injunction action in Superior Court. Adverse decisions from the Superior Court — whether related to construction or non-construction contracts — can generally be appealed to the Massachusetts Appeals Court.
