Back in 2004, the Massachusetts Legislature introduced new contractor prequalification requirements on public building construction projects. Generally speaking, these requirements are designed to improve the adequacy and efficiency of the competitive bidding laws and also ensure that bidders are appropriately qualified to perform the work. To protect against risks of collusion and favoritism in the prequalification process, the Legislature also included prohibitions against unauthorized communications and contact with awarding authorities on public building projects subject to prequalification requirements.

When an awarding authority issues a public notice and solicitation of bids for certain public building projects under Chapter 149, the notice and solicitation “shall include . . . a prohibition against any unauthorized communication or contact with the public agency outside of official pre-bid meetings.” Chapter 149A contains similar language, prohibiting any unauthorized communication or contact outside of “official pre-proposal meetings.” DCAMM’s Prequalification Guidelines state that unauthorized communications between general contractors, “their employees, agents or other related entities interested in submitting a SOQ and the Awarding Authority, the project designer, the project manager, or any other person or entity participating in the Prequalification Committee with regard to the Project are strictly prohibited.”

Given the statutory prohibitions – and DCAMM’s guidance – contractors interested in bidding Chapter 149 and 149A projects should be extremely careful to avoid any communications with the awarding authority and its project team outside of the appropriate “official” channels that could be viewed as improper or unauthorized under the statutes. Inappropriate communications or contact could jeopardize a given contractor’s prequalification status. In addition, it should be noted that the Massachusetts Conflict of Interest statute also criminalizes “knowing” efforts to “influence, or attempt to influence, an official action of the state, county, or municipal employee” through “offers or promises” of “anything of substantial value.” As a result, contractors should make sure that they are not engaging in any conduct that could be interpreted as an attempt to influence official action with respect to Chapter 149 or 149A projects.