1A protest may concern an invitation for bids or a request for proposals; this article uses the term "bid protest" to refer to a vendor complaint about either procurement process. For the sake of simplicity, this article also uses the term "bid" to refer to either a bid or a proposal.
2 M.G.L. c. 30B does not apply to contracts for the design of public works or public buildings, or to construction contracts exceeding $25,000. The state's designer selection law, M.G.L. c. 7, §§38A1/2-O, sets out procedures for the procurement of design services for public building projects. Contracts for the construction of public works projects and public building projects are governed by bidding rules found in M.G.L. c. 30, §39M, and M.G.L. c. 149, §§44A - L, respectively.
3 The OIG is empowered under M.G.L. c. 30B, §17 to bring a civil action if authorized by the Attorney General to impose fines and penalties on individuals who have violated the statute. The fines and penalties are payable to the awarding authority involved in the procurement.
4 In the event that the court enjoins an invalid contract award for failure to comply with a bidding statute, it may issue a declaratory judgment awarding the contract to the protesting bidder, provided that the bidder can support a legal claim to the contract.
5 In order to recover the profits it lost as a result of being passed over for a public contract, an aggrieved bidder must prove that it was deprived of the contract through some conduct of the awarding authority tantamount to bad faith. Bradford & Bigelow, Inc. v. Commonwealth, 24 Mass. App. Ct. 349 (1987).
6 Other public bidding statutes have similar provisions. See M.G.L. c. 149, §44E; M.G.L. c. 30, §39M.
7 M.G.L. c. 149, §44E(4), which outlines procedures for the procurement of modular buildings, includes a similar provision.
8 Several of the cases discussed in this article are trial court decisions. While these cases have no precedential value, they are included here to assist the practitioner.
9 In The Middlesex Corp. v. P. Gioioso & Sons, Inc., 415 Mass. 1002 (1993), the Supreme Judicial Court suggested that this rule extends to requirements prescribed by either state or federal law.
10 The OIG is aware of one unpublished, summary decision, issued pursuant to Rule 1:28 of the Massachusetts Appeals Court, which takes the position, arguably in dicta, that omission of the statutorily required non-collusion form could be waived as a minor deviation from a statutory requirement. See Ryder Student Transportation Services, Inc. v. Randolph Public School Comm., Civil Action No. 92-1785 (August 2, 1993). However, this opinion is of no precedential value, and it is unclear whether the court would take this position in an unrelated case. In the opinion of the OIG, the better practice is to follow clear legal precedent established by the above-cited appellate decisions and reject any bid that violates the statutory requirement to include a certification of good faith.
11 The court also noted that the City should not have deleted the line painting work from the contract, citing Grande & Son, Inc. v. School Hous. Comm. of North Reading, 334 Mass. 252 , 258 (1956). The court stated "[t]o allow the awarding authority to rely on the clause in the bid document [permitting rejection of bids] to change the scope of the work after the completion of the competitive bidding process would, in our view, open the door for manipulation of bids." Id. at 190.