This article was featured in the March 2026 edition of the Utility Contractors Association of New England, Inc.’s Construction Outlook.
The Bid Unit of the Massachusetts Office of the Attorney General (“Bid Unit”) closed out February 2026 with a decision concerning an awarding authority’s power to determine bidder responsibility under M.G.L. c. 30, § 39M. The case illustrates the importance of reviewing the requirements of the bid documents and, where appropriate, submitting pre-bid questions to address potential issues or seek clarification in advance.
The case arose out of a municipal public works project for the revitalization of a landfill. In addition to general site work and grading and improvements to a nearby playground, the project scope of work also entailed landfill closure and capping. The awarding authority required prospective bidders to “Provide Three (3) Service Appropriate References,” but did not define or otherwise elaborate on the meaning of the term: “service appropriate references.” It did not appear from the Bid Unit’s decision that any interested bidder submitted a pre-bid question concerning this requirement or project experience requirements.
In its bid, the apparent low bidder identified three projects that it considered to be similar projects. The second-low bidder identified nine. After opening bids, the project designer proceeded to conduct reference checks. With respect to the apparent low bidder, the designer reported two positive reference checks. However, one of the apparent low bidder’s references stated that it had never worked with the apparent low bidder previously. After further investigation, the apparent low bidder admitted that its “most recent landfill experience was ten years ago” and that it “had used the landfill experience obtained elsewhere by two of its employees.”
The awarding authority rejected the apparent low bidder, determining that the apparent low bidder was “non-responsible and ineligible due to its apparent lack of landfill experience.” In further support of the rejection, the awarding authority also cited its own “poor” prior experience with the apparent low bidder on a project thirteen years ago. The apparent low bidder filed a bid protest.
The Bid Unit acknowledged that an awarding authority retains discretion when it comes to determining bidder responsibility, and that this determination “is not disturbed absent a showing of arbitrary or illegal action by the awarding authority.” On the facts of this case, the Bid Unit concluded that the awarding authority’s decision to reject the apparent low bidder was supported by a rational basis.
In reaching this conclusion, the Bid Unit rejected the apparent low bidder’s argument that “the City should have considered the landfill experience of [the apparent low bidder’s] employees when determining whether [the apparent low bidder], itself, had the experience necessary for the Project.” The Bid Unit stated that the awarding authority “was not obligated” to consider the apparent low bidder’s employees’ experience and instead, “elected – in a proper exercise of its discretion – to consider only the relevant experience of [the apparent low bidder] as a business entity.” Although the Bid Unit concluded that it was “inappropriate” for the awarding authority to partially rely on a “stale” project that the apparent low bidder had performed for the awarding authority thirteen years ago, this did “not supplant the independent justification for rejecting [the apparent low] bid which rests soundly upon [the apparent low bidder’s] lack of landfill capping experience.” The Bid Unit therefore denied the protest.
As this case illustrates, bidder responsibility protests often rise and fall on the specific facts of each situation. In its decision, the Bid Unit noted a disagreement between the parties concerning what percentage portion of the scope of work would be comprised of landfill closure and capping. The apparent low bidder asserted that landfill closure and capping only accounted for approximately one-third of the overall scope of work. In contrast, the awarding authority asserted that the landfill closure and capping work comprised upwards of “75-80%” of the Project. In addition, as noted, the bid documents “did not further describe what the City meant by ‘service appropriate references.’”
In these circumstances, prospective bidders might have considered submitting pre-bid questions to address issues before the awarding authority made bidder responsibility determinations. For example, the apparent low bidder could have submitted a pre-bid question seeking clarification regarding the importance of prior landfill experience given the portion of work requiring landfill closure and capping. It also could have asked whether the awarding authority would consider relevant experience that employees gained during periods of prior employment.
While an awarding authority can set experience requirements, those experience requirements typically cannot be so restrictive as to inappropriately reduce fair and open competition. Sometimes, awarding authorities will expand or clarify experience requirements, which can benefit the public by increasing the size of potentially responsible and adequately experienced contractors. If an awarding authority elects not to loosen experience requirements, bidders may then consider filing a protest before bids are opened. This can sometimes afford the Bid Unit (or a court) an opportunity to determine whether the experience requirements are too restrictive of competition in violation of the purposes of the competitive bidding laws. However, once bids are opened and the awarding authority has made its determination with respect to bidder responsibility, a bidder challenging that decision typically must demonstrate that the awarding authority’s determination was arbitrary, capricious, or illegal. In these cases, the Bid Unit will undertake an “affirmative duty to seek out potential justifications for” the decision of the awarding authority. Participating in the pre-bid question and answer process can sometimes facilitate resolution of potential issues before they arise.
