Section 2 of M.G.L. c. 30B defines a responsive bidder as "a person who has submitted a bid or proposal which conforms in all respects to the invitation for bids or request for proposals." However, M.G.L. c. 30B, §5(f) provides that "[t]he procurement officer shall waive minor informalities or allow the bidder to correct them." See also M.G.L. c. 30B, §6(f). Therefore, the determination of a bidder's responsiveness turns on whether a bid deviation is categorized as a minor informality.
Minor informalities are defined within M.G.L. c. 30B as "minor deviations, insignificant mistakes, and matters of form rather than substance of the bid, proposal, or contract document which can be waived or corrected without prejudice to other offerors, potential offerors, or the governmental body." M.G.L. c. 30B, §2. There are no reported cases interpreting this provision; however, the Massachusetts courts have dealt with the issue of minor informalities in cases involving other public bidding statutes. In these cases, the courts have fashioned rules of decision for determining when an awarding authority may classify a particular bid deviation as a minor informality. These general rules are articulated most succinctly in Peabody Construction Co, Inc. v. City of Boston, 28 Mass. App. Ct. 100 (1989). "If a bid violates a statutory requirement in matters of substance the bid must be rejected." Id. at 103. In these situations, the awarding authority must reject the bid even where no harm to the public is shown, where the violation benefits the public, or where there is no showing of bad faith. Id. (citations omitted). However, if "the deviation from the statutory requirements is minor or trivial, the authority has discretion and may either accept or reject the bid." Id. at 104. Finally, when "the deviation [is] not from a statutory requirement but rather from a requirement imposed by the authority . . . the authority has the discretion to accept or reject the bid." Id. However, an awarding authority is not obligated to consider a deviation from its own procedural requirements as a minor informality, and may reject a bidder on that basis. Builders Realty Corp. of Mass. v. City of Newton, 348 Mass. 64 (1964).
M.G.L c. 30B differs from the public bidding statutes applied in these cases in an important respect. Unlike the other statutes, M.G.L. c. 30B includes a definition of the term "minor informality," and a statutory directive that awarding authorities must either waive bid deviations that meet that definition or allow a bidder to correct them.7 M.G.L. c. 30B, §§5(f), 6(f). The cases that have interpreted other bidding statutes and applied the general rules articulated in Peabody are helpful to the extent that they give awarding authorities guidance as to what should and should not be considered a minor informality in the context of a M.G.L. c. 30B case. This section will discuss some of the general principles that can be extrapolated from these cases.8
An awarding authority must reject a bid that fails to meet a substantive statutory requirement.
In cases involving other public bidding statutes, the Massachusetts courts have held that an awarding authority may not waive a bid deviation as a minor informality when it violates a statutory requirement in matters of substance. In Modern Continental Construction Co., Inc. v. City of Lowell, 391 Mass. 829 (1984), the City of Lowell solicited bids for construction of sewer pipelines and two pumping stations. The advertisement for bids stated that bidding would proceed in accordance with both M.G.L. c. 149, §§44A-44L and M.G.L. c. 30, §39M. The plaintiff, who was the third lowest bidder, protested the bid on the grounds that the project should have been bid in its entirety under M.G.L. c. 149, which -- unlike M.G.L. c. 30, §39M -- requires bidder prequalification. The plaintiff maintained that all bids must be rejected, and the project rebid. One of the City's arguments against mandatory rebidding was that, even if the court were to hold that M.G.L. c. 149 applied, rebidding was unnecessary because the low bidder's qualifications were such that the City substantially complied with the statutory requirement. The court disagreed and held that the statutory requirement for bidder prequalification could not be waived by the City as a minor informality. In J.D'Amico, Inc. v. City of Worcester, 19 Mass. App. Ct. 112 (1984), the court reached a similar result. In that case, the City of Worcester solicited bids on a municipal sewer contract. The low bidder submitted a bid deposit in the amount of five percent of the value of its bid, rather than the statutorily required amount of five percent of the value of the proposed work as estimated by the City. The City waived the difference in the amount of the bid deposit as a minor deviation and sought to award the contract to the low bidder. The Appeals Court ruled that the City could not legally waive strict compliance and held that "[t]he 'minor or formal deviation' exception to compliance with competitive bidding statutes does not generally apply to failure by a bidder to comply with a statutory requirement." Id. at 115.9
While M.G.L. c. 30B does not require either bidder prequalification or a bid deposit, it does require that all bidders submit a certification of good faith, also known as a non-collusion form. M.G.L. c. 30B, §10. As this is a statutory requirement, the decisions in Modern Continental and J. D'Amico suggest that the omission of a non-collusion form is not a bid deviation that can be waived by the awarding authority as a minor informality.10
An awarding authority must reject a bid that contains fraudulent representations.
In a recent Superior Court decision, the court emphasized the statutory requirement that bids must be in all respects bona fide. In ASEC Corp.-Holden Engineering, Inc., Joint Venture v. Mass. Highway Dept., 4 Mass. L. Rptr. No. 27, 604 (February 26, 1996), a Massachusetts Highway Department (MHD) bid required the submission of eight "form C's" as part of a bid package. Form C's are forms to be signed under oath before a notary by subcontractors who certify that they are ready, willing, and able to perform services for the bidder. The low bidder filed three form C's with forged signatures, and all were notarized by an absent notary. The plaintiff, an unsuccessful bidder, sought injunctive relief. The MHD took the position that these bid violations were minor deviations. The court disagreed and held that "falsification of signatures and procurement of false notarizations on the bid documents was, under the circumstances, a matter of substance and not a mere 'minor deviation' which could be waived by the MHD." Id. at 606.
An awarding authority must reject a bid if it does not conform to the bid specifications in material respects, unless it can be changed without prejudice to fair competition or to the governmental body.
Under M.G.L. c. 30B, a bidder may not change the price or any other provision of its bid in a manner prejudicial to the interests of the governmental body or fair competition after the bids have been opened. M.G.L. c. 30B, §§5(f), 6(f). In Grande & Son, Inc. v. School Hous. Comm. of North Reading, 334 Mass. 252 (1956), the Supreme Judicial Court considered the acceptance of a non-conforming bid in the context of another public bidding statute. In that case, the School Housing Committee of North Reading invited bids for a school building contract. The bid specifications stated the statutory requirement that bids include the names of subcontractors and the amounts of their bids. The low bid included a subbid for acoustical plaster mechanically applied rather than for acoustical tile, as required by the bid specifications. Despite its nonconforming bid, the Committee awarded the contract to the lowest bidder, and struck the provision for acoustical tile ceilings from the contract. The plaintiff, who was the second lowest bidder, brought suit. The court ruled that the Committee had no authority to accept an incomplete bid. The court stated that "[t]he provision for rejecting bids is not intended as a device to be adopted as part of the act of awarding a contract so as to justify making a contract different from that submitted to competitive bidding." Id. at 258. See also Sciaba Construction Corp. v. City of Boston, 35 Mass. App. Ct. 181 (1993). But see W.J. Manning, Inc. v. Boston Traffic & Parking Comm., 350 Mass. 24 (1965) (bidder's letter attached to bid, stating his assumption as to the meaning of the word "casualty" in the bid specifications, did not require rejection of the bid where it was clear the bidder intended to conform to the specification, whatever meaning was given to the term).
A recent Superior Court decision dealt with a nonconforming proposal in the context of a contract award under M.G.L. c. 30B. In Bowman v. Denzil Drewry, 5 Mass. L. Rptr. 5, 104 (May 6, 1996), the Town of Westborough requested proposals for lease of a municipal golf course restaurant. The RFP specified that the base rent would be subject to an annual increase based on the Consumer Price Index, starting in the second year of the lease. One proposer did not agree to these terms, and instead proposed a flat rent for five years before the escalator provision would take effect. The court held that a proposer's refusal to include the required rent escalator provision in his proposal was not a minor informality. The court stated that "nowhere was it left open for proposals to delete or modify the escalator term"; therefore, the Town had to reject the proposal. Id. at 107. The same proposer's hours of operation did not comport with the RFP specifications. The court held that this violation also required the Town to reject the proposal.
These cases articulate the general principle, applicable in all public bidding cases, that there must be conformity in material respects between the scope of work defined in the bid specifications, the bids, and the contracts that are ultimately entered into by the parties.
An awarding authority must reject a bid for failure to acknowledge receipt of addenda unless it can be waived without prejudice.
A common bid deviation that raises special problems for awarding authorities is a bidder's failure to acknowledge receipt of addenda. In some cases involving other public bidding statutes, the courts have held that this lack of acknowledgment constituted a minor informality. In Grant Construction Co. of R.I. v. City of New Bedford, 1 Mass. App. Ct. 843 (1973), the City of New Bedford solicited bids for a construction project. The plaintiff, the second lowest bidder, sought to prevent the City from awarding the contract to the lowest bidder because the latter had not formally acknowledged receipt of an addendum to the bid specifications. The court held that, "[i]n light of the small and insignificant cost of the items covered by the addendum, [the low bidder's] failure to acknowledge receipt of the addendum was a minor deviation which did not preclude the city from accepting the bid." Id. at 843. See also Mari & Sons Flooring Co., Inc. v. J.W. Bateson Co., 350 Mass. 499 (1966) (failure of subbidder to acknowledge addendum that did not concern the work it was bidding on was a minor deviation that did not require rejection of the subbid.) However, the Supreme Judicial Court reached a different result in another case, J. & J. Electrical Co. v. Government Center Comm., 349 Mass. 172 (1965). In that case, the Government Center Commission sought bids for work on a new city hall building. The plaintiff submitted the lowest subbid for electrical work, but was rejected by the Commission for failure to acknowledge receipt of several addenda. While the addenda altered the cost of the work, the changes in costs were small and uncertain. Nevertheless, the court held that the awarding authority could reject the subbid.
In a M.G.L. c. 30B case, an awarding authority's determination would similarly turn on the specific facts of the situation. An awarding authority would have to determine if acknowledgment of the addenda could be waived, or obtained after the fact, without prejudice to fair competition or the governmental body.
An awarding authority must waive, or allow a bidder to correct, bid deviations that are properly determined to be minor informalities.
As discussed earlier, under M.G.L. c. 30B, the awarding authority is required to waive minor informalities or allow a bidder to correct them. M.G.L. c. 30B, §§5(f), 6(f). In cases involving other public bidding statutes, the awarding authority has discretion to reject or accept bids that contain minor deviations. The following is a collection of cases applying both rules in which the Massachusetts courts have found that bid deviations constituted minor informalities.
In Gil-Bern Construction Corp. v. City of Brockton, 353 Mass. 503 (1968), the City of Brockton solicited bids for a site preparation contract in connection with the construction of a new high school. The bid specifications required bidders to submit a critical path analysis with their bids. The lowest bidder failed to include the analysis with its bid, but was still awarded the contract. The plaintiff, who was the second lowest bidder, brought suit seeking declaratory relief. The court held that the City could lawfully waive the timely submission of the analysis as a minor informality because it was not required by statute and its omission did not alter the bidder's obligation under the contract.
In Chick's Construction Co. v. Wachusett Regional School Dist. Comm., 343 Mass. 38 (1961), the Wachusett Regional School District Commission sought bids on a school construction contract. The lowest bidder had made no entry for the cost of "rock excavation" on the bid form. The plaintiff, who was the second lowest bidder, brought suit alleging that the bid statute required all bid forms to be completely filled in, and all incomplete forms to be rejected. The court held that this minor deviation did not require rejection, where it could be construed to mean that the low bidder intended to do the work at no extra charge.
In Loranger v. Martha's Vineyard Regional High School Dist. School Comm., 338 Mass. 450 (1959), the Martha's Vineyard Regional High School District School Committee solicited bids for construction of a school building. The bid specifications requested a bid deposit as required by statute. The instructions to bidders stated that the payee should be the "Martha's Vineyard Regional School District." The low bidder's check was made payable to the "Martha's Vineyard Regional High School Building Committee." The plaintiff, an unsuccessful bidder, brought suit alleging that incorrect payee designation on the winning bidder's bid deposit check mandated rejection of the bid. The court held that the Committee was not obligated to reject the bid on the basis of this minor deviation.
In J.J. & V. Construction Corp. v. Commissioner of Public Works of Fall River, 5 Mass. App. Ct. 391 (1977), the City of Fall River solicited bids for a sewer construction project and required the submission of an equal opportunity employment certificate with all bids. The lowest bidder failed to include the certificate. The City permitted late submission of the certificate and awarded the contract to the lowest bidder. The plaintiff, an unsuccessful bidder, brought suit claiming that the winning bidder was not responsive to the bid specifications and should have been rejected. The court held that omission of the certificate could be considered a minor informality that the City had expressly reserved the right to waive.
While there are no reported cases interpreting M.G.L. c. 30B's minor informality provision, there have been several decisions at the trial court level. In Eldorado Transp. Corp. v. Town of Lexington, 5 Mass. L. Rptr. No. 8, 173 (May 27, 1996), the Town of Lexington requested proposals for a minibus transportation service contract. An unsuccessful proposer brought suit alleging that violations of M.G.L. c. 30B required rejection of the other two proposers. One of the proposers had failed to submit a sworn financial statement. The court held that the RFP requirements relating to the submission of financial statements are nonstatutory and upheld the awarding authority's decision to waive the submission. Another proposer had typed, rather than signed, his name to the certificate of non-collusion. The court held that "[a] signature consisting of a person's typewritten name is sufficient where it is evident that the person intended the typewritten name to authenticate the paper as his act." Id. at 177.
In Duncan Indus. Parking Control Sys. v. The City of Boston, Civil Action No. 95-4019 (August 2, 1995), the City of Boston solicited bids for parking meters. The lowest bidder failed to include with its bid a list of all past customers, as required by the bid specifications. The City awarded the contract to the lowest bidder. The plaintiff, who was an unsuccessful bidder, sought declaratory and injunctive relief. The court held that the bidder's failure to include the customer list could be considered a minor informality.
In Moore v. Town of Chatham, Civil Action No. 93-182 (April 1, 1993), the Town of Chatham requested proposals for lease/management of a municipal golf course. The Town's RFP required that bidders submit resumes for all staff members with management responsibilities. The selected proposer, who was also the incumbent, did not include the resumes for several staff who had worked at the golf course in previous years. An unsuccessful proposer brought suit alleging that the selected proposal was not responsive and should have been rejected. The court held that this omission constituted a technical violation that did not require rejection of the proposal.
An awarding authority must correct a mistake in a bid when the mistake and the intended bid are clearly evident on the face of the bid document.
A recent case, Sciaba Construction Corp. v. City of Boston, 35 Mass. App. Ct. 181 (1993), dealt with clerical errors in the context of another public bidding statute. In Sciaba, the City of Boston solicited bids for repair of a bridge. The bid specifications required that bidders submit separate prices for various categories of work. The lowest bid contained an obvious clerical error for one category of work -- the painting of reflectorized white lines -- but the correct bid price could readily be discerned. The City rejected all bids for the line painting work and awarded the contract to the overall lowest bidder for the remaining categories of work. The plaintiff, who was the second lowest bidder, brought suit seeking injunctive relief. The court held that "[a]bsent other considerations, an obvious clerical error that deceives no one does not require rejection of a bid." Id. at 185.11 See also DiMinico & Cincotta, Inc. v. Fire Comm. of Boston, 346 Mass. 766 (1963) (omission of price readily ascertainable from other figures provided by the bidder did not require rejection of bid); Fred C. McClean Heating Supplies, Inc. v. School Bldg. Comm. of Springfield, 341 Mass. 322 (1960) (placement of figure under incorrect heading, and omission of figure under correct heading, were obvious clerical errors that did not compel rejection of the bid).
M.G.L. c. 30B essentially adopts the definition of a correctable mistake articulated in this line of cases, and specifies the remedy. M G.L. c. 30B, §5(f) provides:
If a mistake and the intended bid are clearly evident on the face of the bid document, the procurement officer shall correct the mistake to reflect the intended correct bid and so notify the bidder in writing, and the bidder may not withdraw the bid. A bidder may withdraw a bid if a mistake is clearly evident on the face of the bid document but the intended bid is not similarly evident.
However, it is important to remember that the correction or modification of a bid may occur only in the limited circumstances described in the statute. As the court stated in Bowman v. Denzil Drewry, 5 Mass. L. Rptr. 5, 104 (May 6, 1996), "[t]he [Uniform Procurement] Act's limited provision for modification of a bid or proposal is not intended as a way to allow a non-responsive . . . proposal to belatedly transform itself into a responsive one." Id. at 108.