This article was featured in the January 2026 edition of the Utility Contractors Association of New England, Inc.’s Construction Outlook.
In December of 2025, the Bid Unit of the Massachusetts Office of the Attorney General (the “Bid Unit”) issued a bid protest decision in a case involving questions concerning allegedly “obscure” and “conditional” bids. Although the decision dealt with a public building project and general bidder pricing in connection with a filed sub-bid scope of work, the decision is nevertheless informative for UCANE members. That is, the decision underscores the importance of the following principles that apply to public works projects: (1) the option of submitting pre-bid questions in the event of questions concerning the interpretation of the bid documents; and (2) the prohibition against submitting “conditional” bids.
Two Issues
The case arose out of a municipal office renovation project and involved two issues: (1) the interpretation of provisions of the project specifications relating to the general bidders’ unit pricing and allowances; and (2) additional language that one general bidder inserted on the general bid form concerning substantial completion.
Issue No. 1: Apparent Low General Bidder
The project specifications set forth detailed requirements concerning general bidder unit pricing and allowances. These details are beyond the scope of this article. That said, the apparent low general bidder had carried a filed sub-bidder for plastering work but “provided slightly higher unit price items” on its general bid form than the unit price items identified in the filed sub-bid. As a result, the extended unit prices on the general bid form did not equate to the allowance figure set forth in the filed sub-bid.
Issue No. 2: Second Low General Bidder
With respect to the second issue, the second low general bidder had added a notation on its general bid form suggesting that substantial completion would be contingent upon the date of the award of the contract: “September 1, 2026. Predicated on a December 1, 2025, Award.”
The Third Low General Bidder Files a Protest Challenging the Apparent Low and the Second Low General Bidders
In these circumstances, the third-lowest general bidder filed a protest challenging both the apparent low general bid and the second-lowest general bid. The protestor argued that: (1) the apparent low general bid was “obscure” “because the unit prices multiplied by the estimated quantities did not match the listed allowance values”; and (2) the second-low bid “contained an impermissible condition on the completion date.” The Bid Unit rejected the protest with respect to Issue No. 1, but allowed the protest with respect to Issue No. 2.
Resolution of Issue No. 1. This issue came down to the interpretation and meaning of the specifications. The apparent low general bidder argued that the unit pricing on its general bid form was consistent with the requirements of the specifications and had been “adjusted accordingly” to include all costs for the work. The Bid Unit agreed with the apparent low general bidder’s interpretation and denied the protest with respect to the apparent low general bid.
Resolution of Issue No. 2. With respect to the second-low bid, the Bid Unit concluded that “there is no question” that the second-low bid “must be rejected as conditional.” By stating that the substantial completion date was predicated on a December 1, 2025, award, the second-low bidder “impermissibly placed a condition on its agreement to the required substantial completion date” and therefore was “not on equal footing with all other bids and must be rejected . . . .” Therefore, the Bid Unit allowed the protest with respect to the second low general bid.
Takeaways
Issue No. 1. When it comes to questions regarding the interpretation and meaning of bid documents, the decision illustrates the importance of the pre-bid question and answer process. Whether a bid is impermissibly “obscure” can often depend on the facts of a given case, including requirements of the bid documents. Although the bidders in this case apparently interpreted the requirements of the bid documents differently, it does not appear that any of the general bidders submitted pre-bid questions concerning the requirements of the bid documents. When faced with questions concerning the interpretation of the bid documents, prospective bidders should consider whether to submit a pre-bid question to the awarding authority for clarification. This process can sometimes cut potential bid protests off at the pass. Without pre-bid clarification of applicable requirements, bid protest challenges – like this one – can arise in circumstances involving competing interpretations of the bid documents.
Issue No. 2. As illustrated by the second low general bid in this case, conditional bids are not permissible. This issue often arises when bidders manipulate or alter bid forms supplied by the awarding authority. By adding notations to a bid form supplied by the awarding authority, a bidder runs the risk that its bid will be rejected as impermissibly conditional. In this case, there was “no question” that the second low general bid was conditional because of the added notation that substantial completion would depend on the date of the award of the contract.
