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Recent Massachusetts decision highlights limitations of AGO bid protest decisions

Posted: December 1, 2014

Bid decisions by the Massachusetts Attorney General’s Office (“AGO”) are not binding and government agencies are not required to follow them. As a result, contractors face a dilemma when protesting a bid award challenge: file a bid protest with the AGO, or go directly to court and seek an injunction. An AGO challenge is more cost effective, however, it does not provide any finality.

A recent Massachusetts Superior Court decision, MIG Corporation, Inc. v. MassDOT, decided on October 14, 2014, illustrates the non-binding nature of an AGO’s decision, and the issues that can arise when the awarding authority decides not to follow that decision. 

At the bid stage, MassDOT rejected the low bidder and stated it would award the contract to the second lowest bidder because the low bidder allegedly did not meet all bid requirements.

The low bidder filed a bid protest with the AGO, and was successful, as the AGO determined that MassDOT had violated the public bid laws in its project solicitation. The AGO requested MassDOT re-bid the contract.

In response, the second lowest bidder filed a lawsuit and requested a preliminary injunction prohibiting MassDOT from rebidding in accordance with the AGO’s request. MassDOT indicated that it would defy the AGO’s request and would not re-bid the contract. The low bidder and two construction trade associations intervened and sought an injunction essentially forcing MassDOT to re-bid. The court awarded the second lowest bidder an injunction order, prohibiting a re-bid, effectively ending the low bidder’s challenge. (The low bidder’s request for appellate review was denied.)

This case serves as a reminder of the advisory role of the AGO in Massachusetts bid protests. While the statutory scheme gives the AGO the authority to investigate potential violations of the public bidding laws, and while the AGO has developed an “expertise” in this area over the years, awarding authorities are free to disregard the AGO’s decisions. 

Accordingly, in determining whether (and in which forum) to protest an award, contractors must weigh the benefits of a (relatively) low-cost procedure before an agency with an established familiarity of the public bid laws against the uncertainty that the awarding authority will comply with the agency’s decision. Of course, contractors also need to be aware of the public bidding laws in each state in which they operate, as Massachusetts bidding laws may differ from other states.