This article was featured in the August 2025 edition of the Utility Contractors Association of New England, Inc.’s Construction Outlook.
In the past, the Bid Unit of the Massachusetts Office of the Attorney General (“Bid Unit”) has held that a nominal bid may be rejected “if it is too low to pay the legally-mandated prevailing wage.” According to an Attorney General Advisory dating back to 1994, “[i]f the price [of the] bid seems too low, awarding authorities should inquire of the bidder how it plans to pay the prevailing wage.” This is because – according to the Bid Unit – “[p]ayment of the prevailing wage is an independent legal mandate imposed by M.G.L. c. 149, §§ 26 and 27 . . . .” It is against this backdrop that a second-low bidder recently challenged an apparent low bid as too low to pay the applicable prevailing wage in a bid protest before the Bid Unit.
The protest arose out of a town project for tree trimming and forestry services. Because tree removal “disturbs the earth,” the Bid Unit noted that it is “considered public works ‘construction’” under M.G.L. c. 30, § 39M.
The town’s current contract for tree trimming and forestry services was set to expire. Therefore, the town issued an invitation to bid for a new tree trimming and forestry services contract. The town received two bids, one from the incumbent contractor, and another from a challenger. The challenger submitted the lowest apparent bid, and the incumbent filed a protest.
The incumbent asserted that the apparent low bid should be rejected for three reasons. According to the incumbent, the low bidder: (1) failed to verify that its employees are OSHA-certified and its equipment is ANSI-qualified to perform the required tasks; (2) failed to adequately describe the proposed vehicles needed to perform the work; and (3) failed to properly identify the applicable prevailing wage rates for 2026. The Bid Unit rejected all three arguments.
As for the OSHA and ANSI certifications, the Bid Unit acknowledged that the apparent low bidder “failed to check ‘yes’ or ‘no’ to the certification column on page 5 of its bid form.” However, this was not fatal because the apparent low bidder had “expressly made those same certifications elsewhere.” That is, in another section of its bid, the apparent low bidder marked that, in fact, all employees were OSHA-certified and that all equipment was ANSI-qualified. In these circumstances, the Bid Unit stated that it was not aware of any authority “for the proposition that the Town may not waive its own requirement that bidders attest twice that workers and equipment are properly certified.”
With respect to the incumbent’s argument that the apparent low bidder failed to sufficiently describe its proposed vehicles, the incumbent asserted that the apparent low bidder “failed to identify the ‘chip body capacity’ for the bucket trucks.” But the Bid Unit concluded that there was “no mention of this purported requirement in the specifications.” Rather, according to the Bid Unit, the “cubic yardage of the bucket trucks is not a strict requirement, but instead is a performance-based descriptor that can be met by other types of equipment.” The town had determined that the apparent low bidder’s proposed truck was sufficient to perform the work, and the Bid Unit declined to disturb this assessment.
Lastly, the incumbent also argued that the apparent low bidder “failed to apply the proper prevailing wage rates on its bid form.” In opposition, the town argued that – while bidders are required to pay prevailing wage – “they are not required to bid at those rates unless the awarding authority sets a minimum bidding standard.” (Emphasis in original). According to the Bid Unit, “[m]erely notifying bidders of the prevailing wage rates in the [invitation to bid] is ‘not sufficient to establish it as the minimum bid price.’” The Bid Unit noted that the town had contacted the apparent low bidder to confirm its intent to pay the prevailing wage. This was precisely “‘the kind of due diligence this Office has often required of or recommended to awarding authorities in addressing situations wherein there may be any basis for questioning whether a contractor can or will comply with the prevailing wage law in the performance of a contract.’” In these circumstances, according to the Bid Unit, the fact that the apparent low bidder “bid below the prevailing wage does not require rejection of the bid.”
The Bid Unit did not hold a hearing in this case; instead – as it has done with more frequency lately – the Bid Unit issued a letter decision based on the record. Ultimately, the Bid Unit’s decision does not mean that a bidder that bids below the prevailing wage is insulated from the risk of rejection. That risk remains and each case rises and falls on its particular facts. Bids that appear unusually low will often invite inquiries by awarding authorities seeking to confirm not only that the bidder can meet applicable prevailing wage requirements, but that its bid is not materially and mathematically unbalanced or otherwise poses a risk of not constituting the lowest actual cost to the awarding authority. An awarding authority could still reject the bid if it is not satisfied with the results of this investigation. The Bid Unit’s decision in this particular case did not provide detail as to the extent of the awarding authority’s investigation of the apparent low bidder’s bid price. In any event, the Bid Unit did not overturn the awarding authority’s apparent conclusion that the low bidder intended to pay the prevailing wage. In these circumstances, the Bid Unit concluded that the incumbent protestor had failed to meet its burden of demonstrating a violation of the applicable competitive bidding laws.
