This article was featured in the October 2025 edition of the Utility Contractors Association of New England, Inc.’s Construction Outlook.
In August of 2025, the Bid Unit of the Massachusetts Office of the Attorney General (the “Bid Unit”) considered whether an awarding authority’s inclusion of a DCAMM certification requirement in a public works procurement and subsequent waiver of that requirement after bid opening violated M.G.L. c. 30, § 39M and disrupted principles of equal footing. Without holding a hearing, the Bid Unit concluded that it does.
The bid protest arose out of a town road drainage improvements project under M.G.L. c. 30, § 39M. The awarding authority issued an Invitation for Bids (“IFB”) that required bidders to “‘file their bids with a copy of the certificate from [DCAMM] showing that they are eligible to bid on projects of this category, of this estimated dollar amount, and up to an aggregate limit, and with a Prime Update Statement and Certificate of Eligibility.’” No bidder had submitted a pre-bid question with respect to this requirement.
The town received and opened three bids. No bidder had submitted a DCAMM Certificate or Update Statement with its bid. The awarding authority proceeded to issue a notice of award to the lowest apparent bidder. The next day, a contractor that had not submitted a bid for the project initiated a bid protest in the Bid Unit. The protestor asserted that the town had “unfairly limit[ed] competition” by requiring DCAMM certification for this public works project even though “such certification applies only to public building construction projects bid under Chapters 149 and 149A.” The Bid Unit agreed.
Reviewing M.G.L. c. 149 and 149A, the Bid Unit stated that – “on the face” of the statutes – “DCAMM certification only applies to public building projects bid pursuant to G.L. c. 149, §§ 44A or G.L. c. 149A.” The awarding authority did not dispute that “DCAMM certification was improperly included as a requirement on this G.L. c. 30, § 39M Project.”
Instead, the awarding authority asserted that its inclusion of a DCAMM certification requirement rendered the bid documents “patently ambiguous” and that, as a result, prospective bidders should have sought clarification by asking a pre-bid question. The awarding authority requested that the Bid Unit find that the protester “had an obligation” to seek clarification. The Bid Unit rejected this argument, finding “no ambiguity in the bid documents.” According to the Bid Unit, the IFB had “clearly” stated that DCAMM Certificates and Update Statements were required, and that “[s]uch a clear directive” was not subject to more than one reasonable interpretation. There was nothing else in the IFB that contradicted this clear requirement.
The Bid Unit also rejected the awarding authority’s argument that, because the protestor is a “sophisticated bidder,” its knowledge that DCAMM certification only applies to public construction “rendered the IFB ambiguous.” To conclude otherwise, the Bid Unit stated, “would run afoul of the equal footing principle.” The Bid Unit stated that principles of equal footing would be disrupted if the awarding authority “were permitted to waive the erroneous DCAMM certification requirement post-bid.” In support of this conclusion, the Bid Unit reasoned that “[i]nexperienced bidders reviewing the IFB may not have bid on the Project, believing they did not have the proper DCAMM certification required for the Project.” According to the Bid Unit, the “fact that three experienced bidders took a risk and guessed” that the awarding authority “was not serious about the IFB’s certification requirements only highlights the fact that bidders were not afforded the opportunity to bid on the project in the same way, on the same information.”
As a result, without holding a hearing, the Bid Unit allowed the protest and stated that the awarding authority must re-bid the project without a DCAMM certification requirement “so no potential bidders decline to bid on that basis.” While awarding authorities often have discretion to waive non-statutory requirements in the bid documents, the Bid Unit’s decision indicates that the awarding authority did not have such discretion in this case. Here, the Bid Unit concluded that the awarding authority “violated” M.G.L. c. 30, § 39M by including a DCAMM certification requirement in its bid documents for this public works project, and then violated principles of equal footing by purporting to waive that requirement post-bid.
