TOWN OF WESTON PROHIBITED FROM RE-BIDDING CONSTRUCTION CONTRACT

IN WAKE OF CONFUSION OVER BID INSTRUCTIONS

By Scott K. Semple
September 21, 2015
The Town of Weston recently issued bid instructions containing two different
locations for the receipt of bids. By an addendum, the Town stated that bids would
be received at a third location (Town Hall). Two bidders delivered bids to Town Hall,
and four bidders delivered bids to one of the other identified locations. The Town
declared that the project would be re-bid, and the low bidder who delivered its bid
to Town Hall appealed to the Attorney General. Note that it is not clear whether a
lower bid was delivered somewhere other than Town Hall.
In a decision issued on September 11, 2015 (In Re: Town of Weston available at
http://www.bpd.ago.state.ma.us), the Attorney General found that the locations
identified in the bid instructions were trumped by the location identified in the
Addendum, and that if a bidder delivered its bid to somewhere other than Town Hall,
it is their own fault for not reading the addendum carefully.
While Massachusetts law permits an awarding authority to reject all bids and re-bid
the contract, the awarding authority may do so only if such re-bidding is in the
public interest. This bid protest decision highlights the point that re-bidding public
contracts is generally disfavored in Massachusetts. In Petricca Construction Co. v.
Commonwealth, 37 Mass.App.Ct. 392 (1994), the Appeals Court identified a small
sampling of generally sufficient reasons for a re-bid: i.e., insufficient funds,
ambiguous bid specifications, or new specifications on re-bid. However, the Court
indicated that re-bidding is generally not encouraged, as it exposes the secret bid
price to other potential bidders and may provide the means whereby a municipal
government can use this power of rejection to award contracts to persons of their
choice, and that any application of the bidding laws which would give the
awarding authority an opportunity to exercise favoritism in awarding contracts
should be avoided.
The Petricca Court stated that the authority to re-bid a contract should be read in
conjunction with the overall objectives of the public bidding statutes, namely to
create an open and honest competition with all bidders on equal footing. Absent
such a restriction, an awarding authority would be free to rebid a contract until a
preferred bidder submitted the lowest price, and thwart one of the important
legislative goals. This is the general framework used by Massachusetts Courts and
the Attorney General in determining whether a re-bid is lawful under the
circumstances. There exists no bright-line rule governing the issue.
Bidders seeking to force a re-bid must make a compelling argument that the re-bid
is in the public interest. By the same token, those seeking to prohibit a re-bid must
convince the Court or the Attorney General that a re-bid would undermine the
legislative objective to create an open and honest competition with all bidders on
equal footing.