Deutsch Williams has counseled its municipal clients that Massachusetts procurement law does not require that a contract must always be awarded to the lowest bidder if the contractor’s performance on other projects was sub-standard.  We have successfully represented clients in actions on this issue, (see Weston & Sampson CMR v. Town of Foxborough, Norfolk Superior Court, motion for preliminary injunction against town, denied).  The Massachusetts Supreme Judicial Court has just issued its decision in the case of Barr Incorporated v. Town of Holliston that both confirms this advice and gives guidance to awarding authorities how to document a decision not to award a contract to the apparent low bidder because of that bidder’s lack of competence.

In the case, the Town of Holliston had bid a contract for the construction of a new police station under M.G.L. ch. 149.  Town officials reviewed the documents and files of the Massachusetts Division of Capital Asset Management (“DCAM”) relating to the bidder, Barr Incorporated, as required by the law and applicable regulations.  This review raised questions about the bidder’s ability to perform and the town did further investigation.  This additional investigation indicated that the contractor had a history of unsatisfactory performance on most of its recent public construction projects.  The town determined that the apparent low bidder was not a “responsible” bidder within the meaning of the statute and awarded the contract to the next lowest bidder.  Barr sued, arguing that it was improper for the town to have investigated beyond the information in the DCAM files and documents.