Massachusetts Attorney General’s Bid Protest Unit Has No Jurisdiction to Oversee Compliance With Affirmative Action RequirementsFebruary 2, 2016
The Bid Unit in the Fair Labor Division of the Massachusetts Attorney General’s Office frequently hears and decides bid protests arising out of publicly bid projects. By statute, the AG’s Office has enforcement authority over public construction bidding and performance matters.
In a recent case, a disappointed bidder claimed that the successful bidder did not meet statutory minority-owned business enterprise (MBE) requirements because two of the successful bidder’s listed subcontractors were not MBEs, but rather, Portuguese business enterprises (PBEs). The distinction was important because, although the Massachusetts Supplier Diversity Office has determined that PBEs are MBEs for any construction project, the statute establishing an affirmative marketing program for MBE participation in state projects does not include Portuguese individuals in the definition of minority.
In a brief written decision, the Attorney General’s Office held that it did not have any power to enforce the statutory affirmative marketing program. The AG concluded that, since the Supplier Diversity Office is responsible for certifying MBEs, any violation of MBE requirements is a matter for the Supplier Diversity Office to address. As a result, the Assistant Attorney General denied the bid protest.