Chapter 30B Remains in Effect During COVID-19
Have any parts of Chapter 30B been suspended due to the COVID-19 emergency?
However, if the time required to comply fully with a requirement in Chapter 30B would endanger the health or safety of people or their property, you may procure the needed supply or service without complying with that requirement. [M.G.L. c. 30B, § 8.]
Remember, even under emergency circumstances, you must comply with Chapter 30B to the extent possible. For example, if you do not have time to advertise for two weeks, you can shorten the advertising period.
You may procure only those supplies or services necessary to meet the emergency. In addition, you must maintain a record of each emergency procurement, documenting the basis for determining that an emergency exists, such as COVID-19. Be sure to record:
- The name of the vendor
- The amount and type of contract
- A list of the supplies or services purchased under each contract that addressed the emergency at hand
Finally, you need to publish the record of your emergency procurement in the Goods and Services Bulletin as soon as possible.
Is the use of emergency funds from the state or federal government for COVID-19 purposes subject to Chapter 30B?
Yes, almost always.
How do you sort out conflicting provisions between Chapter 30B and federal or state agency requirements?
Chapter 30B applies to every procurement of supplies and services by a local governmental body regardless of the source of the funds unless:
- The funding is part of legislation that includes a Chapter 30B exemption
- Following Chapter 30B would prevent compliance with any mandatory provisions of federal or state law [Chapter 30B, Section 1(d)]. Note: This only applies to a state or federal statute or regulation, not policies or practices
- You conduct an emergency procurement using these funds following Section 8 of Chapter 30B
If you remain unsure about Chapter 30B compliance when faced with possible conflicting federal or state law or regulations, please consult with your legal counsel.
Example of an Emergency Procurement: Transportation Contract
A town suspended its town-wide bus program because ridership significantly decreased due to COVID-19.
However, the town’s senior population and essential workers still needed transportation during the COVID-19 health emergency. Recently, however, the town had also contracted with a taxi company pursuant to Chapter 30B to provide transportation for senior citizens during certain hours. The taxi company offered to expand its services to include around-the-clock transportation services to its seniors and essential workers during the COVID-19 emergency for the same rates as in the current contract. This expansion is beyond the scope of the current contract with the taxi company.
Does this procurement meet the definition of an emergency procurement?
Most likely, yes.
If the town determined that the time required to solicit the service would endanger the health and safety of people, such as its senior citizens and essential workers, then this proposed service likely qualifies as an emergency procurement. The town would need to determine that the time to comply with any aspect of Chapter 30B would endanger the health and safety of people or property.
As discussed above, a town may only procure the supplies and services it needs to meet the emergency. At some point in time, therefore, the town would need to subject these services to open, fair competition under Chapter 30B. This not only is a legal requirement, but it also helps ensure that the town gets the services it needs at the best price. Note that the town must also comply with the recordkeeping and publishing requirements discussed above.
Bid and Proposal Submissions
May our town require vendors to submit their bids and proposals electronically?
Even before COVID-19, local jurisdictions could require electronic submissions of bids or proposals under Chapter 30B.
If you have not done so already, consider extending the due date for submitting bids or proposals in order to give vendors enough time to comply with any new requirements. Remember, before a bid or proposal is due, Chapter 30B permits you to extend the bid opening date and time. You must issue an addendum and you should send a copy to each vendor that inquired about your solicitation. You should also post a notice of the addenda and the new due date on your jurisdiction’s website. Even under non-emergency circumstances, vendors may need time to adapt to changes related to bid and proposal submissions.
Does Chapter 30B permit vendors to submit bids and proposals by email?
Vendors may submit bids and proposals electronically, including by email. Chapter 30B does not specifically require bids or proposals to be submitted in a paper format.
Any electronic submissions you receive must remain sealed until the bid or proposal opening, so you must determine how you will ensure that the bids remain sealed when they are submitted electronically. Please note that standard email accounts do not typically provide the security necessary to preserve the integrity of the process. There are third-party vendors that offer secure electronic bid submission services.
Additionally, COMMBUYS – the Commonwealth’s procurement website – includes an electronic submission feature that is free to local jurisdictions. For details, contact the Operational Services Division’s (OSD) help desk at (617) 720-3197 or visit the OSD’s website.
U.S. Mail Submissions
Can we use a United States post office box (U.S. P.O. Box) instead of our Town Hall as a mailing address to receive bids and proposals? If we use a U.S. P.O. Box, must it be located in our jurisdiction?
You may use a U.S. P.O. Box to receive your bids and proposals. The post office does not need to be located in your jurisdiction.
You may want to consider allowing vendors to submit bids and proposals electronically because electronic submissions reduce in-person contact for everyone. In addition, because electronic submissions have an electronic date stamp, it is easy to keep track of the date and time that each bid or proposal was received. For example, you may use the COMMBUYS system discussed in the previous answer.
If we use a United States post office box for the submission of bids and proposals, do we have to ensure that bids and proposals remain sealed until the bid opening?
To comply with Chapter 30B, you will need to develop a process to ensure that bids and proposals remain sealed and protected from any tampering from the time you pick them up at the post office until the time of the public meeting or witnessed opening (which can be a virtual opening; see the next section).
Failing to do this could call the contents, including the pricing in the bids or proposals, into question.
Virtual Bid or Proposal Openings
We have a scheduled bid opening today, but our city has closed all public buildings. How can we open the sealed bids publicly in order to comply with Chapter 30B?
Based on Governor Baker’s declared state of emergency, in-person bid or proposal openings are not required at the present time to satisfy Chapter 30B.
This position is also supported by the temporary changes applied to the Open Meeting Law and is consistent with the guidance from the Office of the Attorney General about opening bids for construction contracts.
Consistent with the temporary amendments to the Opening Meeting Law, a jurisdiction may hold a virtual bid opening by livestreaming and recording the event. Also, the opening does not need to be located at a town or city hall. When the bids are opened, the names of the vendors and the amount offered should be read aloud, just as they would be at an in-person bid opening.
To recap, the bid opening should be:
- Posted to the local jurisdiction’s website as soon as possible
The jurisdiction should ensure that the security and integrity of the bids or proposals are maintained. Bids and proposals must remain sealed until the bid or proposal due date.
If a bid is not opened at a public meeting, Chapter 30B requires that the opening be in the presence of a witness or witnesses. Under the current emergency, the opening does not need to be witnessed in person. The opening can be livestreamed for the witnesses and recorded for public record purposes. Remember that with proposals, the sealed price and sealed non-price proposals must be kept separate.
You must still create a register of all proposals you received, just as you do for an in-person opening.
Extending Bid Deadlines
Can our school district extend a proposal or bid submission deadline if we believe that vendors may not be able to comply, given the current COVID-19 health emergency? Can we extend the deadline after vendors have submitted proposals or bids?
A local jurisdiction may extend any submission deadline before the deadline for submitting bids or proposals, as long as the jurisdiction provides proper notification to vendors that have already made submissions.
If the submission deadline has already passed, however, the jurisdiction cannot then extend the deadline. If the jurisdiction believes an emergency prevented vendor submissions, then the jurisdiction may reject all proposals or bids and begin a new solicitation process.
Our town would like to provide a telemedicine service for our employees given the current COVID-19 public health emergency. Do we need to procure these services using Chapter 30B?
Chapter 30B, Section 1(16) exempts contracts with:
- Other health care individuals or providers:
- Nurses' assistants
- Medical and laboratory technicians
- Social workers
- Psychiatric workers
If the telemedicine services are provided by one of these health professionals, then the services would fall under the exemption. However, you should still follow sound business practices even when you procure exempt services.
Open Meeting Law
As public bodies consider resuming in-person meetings, we urge all public bodies to adhere to the Governor’s orders regulating gatherings and social distancing, and to keep abreast of any changes. We also offer the following guidance to ensure continued compliance with the Open Meeting Law.
May public bodies continue to meet entirely remotely?
The Governor’s March 12, 2020, Executive Order suspending certain requirements of the Open Meeting Law is still in effect.
This executive order relieves public bodies from the Open Meeting Law’s requirement that meetings be conducted in a public place that is open and physically accessible to the public, provided that the public body provides adequate, alternative means of public access to the public body’s deliberations. “Adequate, alternative means” may include, without limitation, providing public access through telephone, internet, or satellite enabled audio or video conferencing or any other technology that enables the public to clearly follow the proceedings of the public body in real time.
This executive order also authorizes all members of a public body to participate in a meeting remotely. The Open Meeting Law’s requirement that a quorum of the body and the chair be physically present at the meeting location is suspended.
All other provisions of the Open Meeting Law and regulations, such as the requirements regarding posting notice of meetings and creating and maintaining accurate meeting minutes, as well as the limited, enumerated purposes for holding an executive session, remain in effect.
May public body members meet in person, while requiring the general public to follow the proceedings remotely?
We have interpreted the Governor’s Executive Order to permit public bodies to meet in person, but provide remote access for the public. Section (1) of the executive order allowing public access through adequate, alternative means is independent from Section (2), which allows members of the public body to participate remotely. The public body may conduct its proceedings under the relief provided in section (1) or (2) or both.
May a public body hold a meeting entirely in-person, without providing the public with alternative remote access?
The Governor’s March 12 executive order relieves public bodies from the requirement to provide in-person access, provided they instead provide adequate, alternative public access through remote means.
However, the executive order does not prohibit public bodies from holding in-person meetings, if they are able to do so in a way that complies with the Governor’s current orders regarding gathering size and physical distancing, yet also complies with the Open Meeting Law’s requirements regarding access to the public.
The Open Meeting Law requires that meetings of public bodies be open to the public. Access, if not provided by remote means in accordance with the Governor’s executive order, must include the opportunity to be physically present as well as to see and hear what is being discussed by the members of the public body.
In addition, for a meeting to be truly open to the public, we have determined that it must be held at a location that is compliant with the Americans with Disabilities Act. The meeting space must be sufficiently large to accommodate anticipated crowds, and a public body must make reasonable efforts to accommodate unexpectedly large turnouts.
A public body may not cap the number of attendees for purposes of complying with the Governor’s orders regarding gathering size and physical distancing. A small public body that typically attracts few members of the public to its meetings should not assume that it will be able to comply with gathering size restrictions, and should plan for larger audiences.
Public bodies may consider holding meetings outdoors, if they can ensure that attendees will be able to see and hear the discussions, such as through the use of adequate audio systems. To ensure the greatest transparency and consistent with the goals of the Open Meeting Law, the Division of Open Government encourages public bodies to continue to offer the public alternative access to the meeting through remote means even if the public body members will assemble in person and the meeting will be physically accessible to the public.
Finally, we note that Town Meetings are governed by separate laws and are not subject to the requirements of the Open Meeting Law. A Town Meeting is the annual or semi-annual gathering of a town’s eligible voters to act as the legislative body for a Massachusetts town. For questions about Town Meeting, please contact the Attorney General’s Municipal Law Unit.
Contact the Massachusetts Office of the Attorney General at (617) 963-2540 for more information or file an Open Meeting Law complaint online.
Our Chapter 30B Assistance Hotline is for public employees and individuals with Chapter 30B procurement questions. Please direct questions related to design and construction to the Attorney General’s Office.
Boston, MA 02108