Choice of Forum
The Office of the Attorney General provides one forum for the resolution of protests regarding public bidding procedures. The Superior Court provides another.
Under the public bidding laws in Massachusetts, a protest may be brought before either the Office of the Attorney General or the Superior Court. If brought before the Office of the Attorney General, the Office will conduct an investigation to determine whether a violation of the bidding procedures has occurred. This investigation is usually accomplished through a bid protest hearing with the relevant parties. If it is found that a violation has occurred, the Office of the Attorney General will instruct the awarding authority as to the proper action to take to remedy the problem.
Most bid disputes brought before the Office of the Attorney General receive a hearing to resolve the matter. The hearings are necessary to allow the parties an opportunity to present fully the relevant facts and law regarding the protest. Other bid disputes, however, are resolved without a hearing. A hearing is not held or considered necessary if the facts of the matter are not in dispute and the crux of the protest centers on a well settled principle of law.
Nature of the Proceeding
The Attorney General's Office does not convene formal adjudicatory proceedings pursuant to M.G.L. c. 30A to resolve bid protests. The proceedings are investigatory, rather than formal adversarial proceedings.
The hearing officer designates the order in which the testifying witnesses will be heard. Each party is allowed to present its case without interruption. A party may present any relevant documentation and make any statements in support of its position. While the rules of evidence are relaxed due to the nature of the proceeding, at the time of decision the hearing officer will determine what weight or credibility to give any document or statement offered into evidence.
Parties may question the opposing parties. However, this questioning is conducted through the hearing officer so that order and decorum may be maintained at all times during the hearing.
Orders Prior to the Hearing
The Attorney General's Office does not issue orders for discovery, depositions or subpoenas.
Burden of Proof
The burden of proof is on the protester to demonstrate that an illegality in the bidding procedures has occurred.
Memoranda and Briefs
Briefs and memoranda must be filed 48 hours prior to the hearing. Post-hearing briefs and memoranda may be filed at the discretion of the hearing officer, depending on the complexity of the issues raised at the hearing.
Post Hearing Appeals
After a hearing and decision by the Attorney General's Office , any aggrieved party may appeal to the Superior Court. The proceeding in the Superior Court is de novo. Note, however, that the Supreme Judicial Court has held that a Superior Court judge did not abuse his discretion in granting injunctive relief where the substance of a DOL bid protest decision indicated that the plaintiff had a reasonable likelihood of success on the merits.
Thus, many prefer to file a bid protest with the Attorney General's Office as an initial step. First, an unfavorable outcome can be tried again in another forum. (The same is not true of the converse - as a matter of policy, the Attorney General's Office will not conduct a bid protest hearing on a matter that has been heard in Superior Court.) Second, a favorable outcome from the Attorney General's Office may assist an effort to obtain injunctive relief, if such a remedy is necessary.