This article was featured in the September 2026 edition of the Utility Contractors Association of New England, Inc.’s Construction Outlook.
Generally speaking with respect to design-bid-build projects, the Massachusetts competitive bidding laws are designed to obtain the lowest bid prices that fair and open competition can secure among responsible contractors bidding on an equal footing. To effectuate this purpose, the statutory scheme requires bidders to submit sealed bids, and certify that their bids are bona fide, fair, and made without collusion or fraud with any other person.
More and more, awarding authorities are requiring bidders to submit their bids through an online bidding platform. But what happens when – prior to bid opening – a glitch in the online system enables one of the bidders to see the bid price of another bidder? This question – and its impact on equal footing – recently arose in a bid protest submitted to the Bid Unit of the Massachusetts Office of the Attorney General (the “Bid Unit”).
The case arose out of a public building project for a Massachusetts municipality. The town required bidders to submit their bids through an online bidding platform. The town received three bids in the following order:
- Bid No. 1 – Submitted at 11:08 AM (Highest Bid Price)
- Bid No. 2 – Submitted at 12:09 PM (Second-Low Bid Price)
- Bid No. 3 – Submitted at 1:14 PM (Lowest Bid Price)
As you can see, the first bid received ended up being the highest bid price. The second bid received was the second-lowest bid price, and the third bid received was the lowest bid price. However, the town did not award the contract for the project to the lowest bidder. Instead, the town rejected all bids in favor of a re-bid due to an alleged glitch in the online bid platform.
Apparently, when the second bidder had logged on to submit its bid, it could see the secret bid price of the bidder that had already submitted a bid that morning. This issue was not reported to all bidders prior to bid opening. In this regard, earlier in the day, the awarding authority had alerted bidders to another, unrelated glitch in the system timer which the awarding authority advised had been resolved.
In these circumstances, the contractor that had submitted its bid last – and whose bid price was the lowest – filed a bid protest with the Bid Unit. Among other things, the low bidder submitted testimony confirming that it was not aware of this alleged glitch in the system, did not actually see the bid price of any other bidder, and submitted a bona fide bid based on its own internal estimating. The lowest bidder also asserted that the high bidder was unaffected by the glitch: since the high bidder had submitted its bid first, it could not have seen the bids of any other bidders prior to bid opening. As a result, the awarding authority received two bona fide bids. The lowest bidder argued that the only party that had apparently known of the glitch (i.e., the disappointed second bidder) allegedly submitted a bid without reporting the glitch prior to bid opening. Therefore, the low bidder took the position that it was entitled to an award of the contract.
The Bid Unit requested information concerning the glitch, and upon review of that information, declined to open an investigation of the matter. In so doing, the Bid Unit recognized the limited bases for re-bidding, but stated that “those bases are not exclusive.” The Bid Unit stated that there was a “bidding platform glitch” which “had the ultimate effect of disclosing earlier bidders’ prices to later bidders” prior to the bid submission deadline. The Bid Unit stated that “[k]nowing other bidders’ secret bid prices before bids are due is antithetical to the equal footing goal of the bidding laws . . . .” The Bid Unit added that even if the lowest bidder did not see the other two bidders’ prices, “the second bidder saw the first bidder’s price and undercut it, and other bidders may have declined to submit a bid after having seen the earlier one/s.” The Bid Unit viewed this situation as a “clear equal footing violation” in which the “only proper course is for the awarding authority to rebid the work.”
This case presents a somewhat unique factual scenario, and serves as an example of a new type of bid issue that would not have arisen before the advent of online bidding. Bidders should take steps to familiarize themselves with the various online platforms and keep in mind that they may not always be “perfect.” In the event that a given bidder detects system issues or glitches in an online bidding platform, the bidder should immediately alert the awarding authority and the online bid platform host so that those issues may be promptly examined and addressed.
