This article was featured in the July 2026 edition of the Utility Contractors Association of New England, Inc.’s Construction Outlook.
We have previously written about the limited grounds upon which a Massachusetts public awarding authority may re-bid a public infrastructure project. The three recognized bases for re-bidding are: (1) insufficient funds; (2) ambiguous specifications; and (3) new specifications on re-bid. In a prior article, we discussed the “insufficient funds” basis for re-bidding. At the end of June 2026, the Bid Unit of the Massachusetts Office of the Attorney General (“Bid Unit”) issued a bid protest decision addressing the other two bases for re-bidding: ambiguous specifications and new specifications on re-bid.
The bid protest arose out of a M.G.L. c. 30, § 39M project for paving of roadways and walkways at a Massachusetts community college. With respect to large public infrastructure projects, M.G.L. c. 30, § 39M requires a bid deposit. However, in its bid documents for the project, the awarding authority apparently provided conflicting information regarding the requirement of a bid bond. One section of the awarding authority’s Instructions to Bidders advised that “[a] bid [d]eposit is not required for this bid.” At the same time, another section of the same document “instructed bidders to provide a five percent bid deposit” with their bid. The awarding authority also included a bid bond form for bidders “to complete as a required document.”
The awarding authority received ten bids, but the apparent low bidder did not include a bid deposit with its bid. Upon review, the awarding authority determined that its bid documents were “materially ambiguous” and elected to re-bid the project. On re-bid, the awarding authority also updated its specifications to include additional details for thermoplastic painting of pavement markings and included an “entirely new” section for “Planting.” The specifications on re-bid also incorporated certain items that the awarding authority had previously clarified in addenda issued in connection with the original procurement (relating to asphalt walkway quantities, number of speed bumps, and roadway asphalt thickness).
In these circumstances, the second-low bidder filed a protest with the Bid Unit alleging that the re-bid was “improper.” The second-low bidder: (1) challenged the awarding authority’s determination that the original specifications were ambiguous with respect to the bid deposit requirement; and (2) argued that the “new specifications were not materially different from the initial ones and thus do not justify the re-bid.” After holding a hearing, the Bid Unit denied the bid protest. But this does not mean that the Bid Unit agreed with the awarding authority in every respect.
In fact, the Bid Unit disagreed with the awarding authority’s conclusion that the specifications were ambiguous with respect to the bid bond requirement. According to the Bid Unit, “[b]idders on projects estimated to cost more than $50,000 must include bid security with their bids, and awarding authorities are required to reject bids unaccompanied by bid security.” In this case, the Bid Unit noted that no bidders asked any pre-bid questions concerning the “obvious discrepancy” in the bid documents. Had the awarding authority rejected the low bidder on this basis, and if the low bidder filed a protest, the Bid Unit stated that such a “protest would have been denied.” The Bid Unit added that re-bidding is disfavored because it exposes bidders’ secret bid prices and that awarding authorities are not permitted to re-bid “simply to obtain a lower price.” The Bid Unit stated that “[h]ere, the bid prices of the nine compliant bidders have been exposed” and also noted that the “statutory obligation of a bidder to furnish bid security with their bid cannot be waived by an awarding authority’s error.” In these circumstances, the Bid Unit concluded that the awarding authority’s decision to re-bid based on “ambiguous specifications” concerning the bid deposit requirement “misses the mark.”
But the Bid Unit’s analysis did not end there. With respect to the “new” specifications on re-bid, the Bid Unit concluded that the “re-bid specifications are sufficiently new and material” to justify a re-bid. According to the Bid Unit, the “re-bid specifications contained material additions that were not present in either the original specifications or addenda, including more detailed specifications for thermoplastic pavement markings and a new Planting specification section.” The Bid Unit concluded that the second-low bidder failed to meet its burden of proving that these additions “were not sufficiently material to warrant a re-bid of the Project.” Therefore, even though the Bid Unit disagreed with the awarding authority with respect to the bid bond requirement, the Bid Unit agreed that the awarding authority’s issuance of new specifications justified a re-bid in this case. This led the Bid Unit to deny the second-low bidder’s protest.
Bid protests are often highly fact specific. As a result, just because the Bid Unit may have reached a particular result in one case does not mean that it would necessarily reach the same result in another case involving different facts.
Certainly, ambiguous specifications can justify a re-bid. However, in this case, the fact that the alleged “ambiguity” related to a longstanding statutory bid deposit requirement likely influenced the Bid Unit’s conclusion that this “ambiguity” did not justify a re-bid. The Bid Unit’s decision underscores the importance of asking pre-bid questions, including where – as here – the bid documents are in conflict with applicable statutory requirements.
As for the “new” specifications on re-bid, an awarding authority likely cannot justify a re-bid simply by making perfunctory, immaterial changes to its specifications. To conclude, otherwise could enable awarding authorities to play favorites. The competitive bidding laws are designed to avoid those types of scenarios. In this case, the awarding authority added substantive requirements (including a new specification section for Planting) and additional details that were not present in the original bid documents. Having reviewed the bid documents, the Bid Unit concluded that these were substantive changes. Here again, each case rises and falls on its facts. In the event that an awarding authority pursues a re-bid with “new” specifications, contractors should examine the specifications on re-bid to determine whether they include material changes. If not, then the “new” specifications may not be sufficient to justify the re-bid.
UCANE Construction Outlook, July 2026 | Legal Corner
This alert is for informational purposes only and does not constitute legal advice. The outcome of the pending litigation remains to be determined and is not guaranteed.
This information is provided for educational purposes only. It should not be construed or relied on as legal advice. It is not intended to create, and receipt of it does not constitute, an attorney-client relationship. If you have specific questions regarding a particular fact situation, we urge you to consult the authors of this publication or other legal counsel.
