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Appeals Court Decision Raises Questions Regarding an Awarding Authority’s Ability to Waive Substantive Non-Statutory Bid Requirements

A decision of the Massachusetts Appeals Court has raised important questions regarding an awarding authority’s ability to waive its own substantive bid requirements for a public construction project.

It is well established in Massachusetts that an awarding authority is required to reject bids that fail to comply with a substantive requirement (versus a procedural requirement) of the public bidding statutes.

Justice Trainor’s opinion may be read to suggest that an awarding authority should not, as a general matter, have unfettered discretion to waive substantive, non-statutory bid requirements.

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