This article was featured in the February 2025 edition of the Utility Contractors Association of New England, Inc.’s Construction Outlook.
Imagine the following scenario:
- A public awarding authority in Massachusetts issues an Invitation for Bids (“IFB”) generally describing an upcoming project and alerting prospective bidders that the specifications will be made available through an online bidding portal seven days prior to the “Pre-Bid Walk Through.”
- The IFB does not indicate whether the “Pre-Bid Walk Through” is mandatory or optional, but states that by submitting a bid, the bidder warrants that it has examined the conditions and that information provided through site visits and the bid documents are adequate.
- The awarding authority’s COMMBUYS, Central Register, and website postings also do not indicate whether the “Pre-Bid Walk Through” is mandatory or optional.
- As promised, the awarding authority subsequently posts the project specifications to the portal. The specifications include Instructions stating, in bold, that “Attendance at site Pre-bid walk through is mandatory.”
- However, the online bidding portal includes a “dashboard” button (functioning as a “cover page” to the project specifications) stating: “Required pre-bid conference/site visit optional.”
In these circumstances, is the pre-bid walk through mandatory or optional? The Bid Unit of the Massachusetts Office of the Attorney General (“AGO”) addressed this question in a recent bid protest decision.
In that case, on the date bids were due, the awarding authority heard from an interested bidder that had not attended the pre-bid walk through. Apparently, the interested bidder had only viewed the dashboard button and did not review the Instructions prior to the walk through or the deadline for submission of pre-bid questions. The awarding authority confirmed that the pre-bid walk through was mandatory and that it would reject the bid of any bidder that had not attended. The interested bidder submitted a bid anyway, which turned out to be the lowest bid submitted for the project. The awarding authority rejected the bid. A bid protest ensued.
The AGO denied the protest. Viewing the dashboard button as “in essence, the concurrently published cover page for the specifications and Instructions,” the AGO stated that “it is nonsensical that a cover page would operate to negate its underlying content.” Therefore, the dashboard button that had mistakenly referenced an “optional” walk through did not constitute a waiver of the awarding authority’s Instructions that the walk through was, in fact, “mandatory.”
The AGO added that the dashboard mistake was “so obvious upon a ‘reasonably conscientious’ review that the burden rest[ed] with the [protestor] to ‘at least seek clarification’ about the discrepancy.” According to the AGO, “[h]ad the [protestor] simply read the two-page Instructions appearing in the specifications” it would have seen the mandatory language in bold print, together with additional language placing the onus on bidders to “visit the site and familiarize” themselves with the conditions. In this particular case, the protestor did not review the Instructions in the specifications until the date the bids were due. In these circumstances, the “obvious nature of the discrepancy, coupled with [the protestor’s]” own “failures to review the Instructions and ask for clarification in a timely manner, together defeat its protest.”
This protest instructs that there is no substitute “for a reasonably conscientious” review of the applicable provisions of the bid documents. Bidders should be cautious about relying solely on information posted to an online bidding portal as if it were a “CliffsNotes” version of the actual bid documents. What constitutes a “reasonably conscientious” review will depend on the facts of a given case, including the nature and discoverability of the discrepancy at issue. At least, where – as here – there is an “obvious” discrepancy between information posted to an online bidding portal and information included in the specifications, bidders should be sure to seek clarification in a timely manner or risk rejection of their bids. While the AGO’s decision suggested that “simply” reading the two-page Instructions might have been a sufficient review in this particular case, contractors should not expect that their review of applicable bid documents should be so limited.
