LAW: The Contractor's Side

The highest of the low

Article November 28, 2001
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The Appeals Court of Massachusetts recently approved a public agency’s use of an alternative bidding procedure

The Appeals Court of Massachusetts recently approved a public agency’s use of an alternative bidding procedure.

In J.F. White Contracting Co. v. Massachusetts Port Authority, 51 Mass. App. Ct. 811, 748 N.E.2d 1020 (2001), the court held that the request for preliminary injunction by J.F. White Contracting Co. was properly denied because White had failed to demonstrate reasonable likelihood of success on the merits of his claim. White claimed that the award of a contract by the Massachusetts Port Authority (Massport) to M. DeMatteo Construction Co. violated Massachusetts General Laws ch. 30 §39M.

In September 2000, Massport solicited bids for the renovation and rehabilitation of the Maurice H. Tobin Memorial Bridge in Boston. Massport invited all bidders to submit alternative bids based on the use of "type 5" cement concrete and "silica fume" concrete, reserving the right to award the contract on the alternative that was in the best interest of Massport. White was the low bidder for the type 5 cement at $6,443,912 and DeMatteo was the low bidder for the silica fume concrete at $6,455,174. Massport selected the silica fume concrete alternative because of its superior anti-corrosive properties and awarded the contract to DeMatteo, even though its bid was higher.

On Jan. 30, 2001, White filed suit seeking a preliminary injunction prohibiting Massport from proceeding with an award of the contract to any contractor other than White. White asserted that under §39M it was entitled to an award of the contract solely because its bid on the type 5 concrete was lower than DeMatteo’s bid on the silica fume concrete.

Massachusetts General Laws ch. 30 §39M, governing competitive bidding practices on public works projects, provides that every contract for the construction or repair of any public work shall be awarded "to the lowest responsible and eligible bidder on the basis of competitive bids publicly opened and read." The purpose of the statute is "to create an open and honest competition with all bidders on an equal footing and to enable the public contracting authority to obtain the lowest eligible bidder."

The Superior Court judge denied White’s request, reasoning that White had failed to establish reasonable likelihood of success on the merits of his claim, "since all bidders were afforded full competition as to the two alternatives and there was no claim of improper favoritism." White appealed.

Words cannot describe

The Appeals Court noted, "there is no language in §39M which prohibits a public authority such as Massport from using the type of alternative bidding procedures at issue in this case, so long as it accepts the lowest bid for the alternative ultimately selected." DeMatteo was the lowest bidder on the silica fume concrete alternative; therefore, Massport was found to not have violated §39M in awarding the contract to DeMatteo. The Appeals Court explained Massport fully defined both alternatives in its bid solicitation documents, making it clear that "a bidder could be assured of an award of the contract only if it submitted the lowest bid on both alternatives."

Massport provided sufficient information regarding the work involved and the quantity and type of materials that would be used in both alternatives so as to place all interested bidders on equal footing and ensure a fair selection process.

The alternative bidding procedure utilized by Massport in this case grants a public authority more discretion in awarding a contract. In doing so, it potentially offers the opportunity for favoritism. The solicitation of alternative bids based on the use of two different products creates the possibility of two different contractors as the lowest bidder on each of the alternatives, such as in this case. The public authority has introduced another factor into its decision-making process and created another justification for not awarding a contract to the lowest bidder overall.

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