By: Christopher W. Morog and Robert T. Ferguson, Jr.

The Bid Unit of the Massachusetts Office of the Attorney General (Bid Unit) and the Massachusetts Superior Court both recently issued decisions addressing a bidder’s failure to disclose litigation in its bid. Although both cases involved omissions in DCAMM Update Statements submitted with bids for school building construction projects, there remain important takeaways for public works contractors on projects subject to M.G.L. c. 30, § 39M.

The cases involved the same apparent-low bidder in connection with two different projects for different awarding authorities. Under the statute applicable to public building projects, the bidders were required to submit their DCAMM Update Statements with their bids. Among other things, the DCAMM Update Statements required the bidders to disclose certain recent judicial and administrative proceedings relating to “the procurement or performance of any construction contract, including but not limited to actions to obtain payment brought by subcontractors, suppliers or others.”

The apparent-low bidder admittedly failed to disclose one lawsuit (a $17,000.00 action involving a subcontractor) and allegedly failed to disclose others. The awarding authorities rejected the apparent-low bidder for its failure to disclose litigation and bid protests ensued. The Bid Unit and the Superior Court both upheld the awarding authorities’ rejection due to this “material” omission.

The Bid Unit concluded that the “omission of a single lawsuit from an Update Statement is grounds for rejecting a bidder.” The fact that the lawsuit in question arguably involved “an insignificant amount of money ($17,000.00)” did not change the Bid Unit’s view. Similarly, the Superior Court stated that the “material omission of even one case was sufficient reason for [the awarding authority], in its discretion, to deem [the apparent-low bidder] an ineligible bidder and thus deny awarding it the [contract].”

For those members who bid on Chapter 149 projects, these decisions make clear that a failure to make proper disclosures in DCAMM Update Statements can be fatal. Regardless, these decisions underscore the general need for bidders – even on public works projects – to provide complete, accurate, and responsive information and disclosures with their bids. A bidder’s failure to include even a single piece of required information deemed material to an awarding authority’s determination of bidder responsibility can lead to rejection. This is because awarding authorities enjoy discretion when it comes to bidder responsibility determinations. The Bid Unit and the courts are reluctant to disturb a discretionary decision of an awarding authority where the awarding authority does not act arbitrarily, unreasonably, or illegally.