Government Contract Bid Protest

GOVERNMENT CONTRACT BID PROTEST

Commonwealth of Massachusetts

OVERVIEW OF MASSACHUSETTS PROCUREMENT PROTEST LAW

Massachusetts procurement law is complex, with different statutory frameworks governing state procurement, local government procurement, public works, and public building construction. There is no single unified bid protest statute. Protests are handled differently depending on the type of procurement and the level of government involved.

Key Statutory Frameworks:

• State Procurement (Commodities and Services): M.G.L. c. 7, §§ 4, 4A, 22; 801 CMR 21.00. Administered by the Operational Services Division (OSD).
• Local Government Procurement: M.G.L. c. 30B (Uniform Procurement Act). Enforced by the Office of the Inspector General (OIG).
• State Public Works Construction: M.G.L. c. 30, § 39M.
• Public Building Construction: M.G.L. c. 149, §§ 44A-44H and M.G.L. c. 7C, §§ 44-58.
• Construction Manager at Risk: M.G.L. c. 149A.

Protest Pathways:

Key Filing Information:

• Attorney General's Bid Protest Unit: Handles protests of public construction and public works bids under M.G.L. c. 30, § 39M; c. 149, §§ 44A-H; and c. 7C, §§ 44-58.
• Filing Fee: $100.00 non-refundable filing fee for AG Bid Protest Unit protests.
• Office of the Inspector General (OIG): Reviews Chapter 30B protests and issues non-binding decisions.
• Operational Services Division (OSD): Handles protests of state commodity and service procurements under 801 CMR 21.00.
• Superior Court: Courts have jurisdiction to issue mandatory orders, injunctive relief, and monetary damages. Any bidder may file a civil action challenging an award.

Standing: Any interested party, including unsuccessful bidders, prospective bidders, citizens, watchdog groups, unions, trade associations, and competitors (for AG Bid Protest Unit); actual or prospective bidders/proposers (for OSD/OIG protests).

Automatic Stay: Massachusetts does not provide an automatic stay of the procurement upon filing a protest. Protesters must seek injunctive relief from the Superior Court to stay contract execution.

GROUNDS FOR PROTEST CHECKLIST

Check all grounds applicable to this protest:

☐ Solicitation contained defective, ambiguous, or unduly restrictive specifications
☐ Evaluation of proposals deviated from stated evaluation criteria
☐ Agency/awarding authority failed to follow procurement procedures
☐ Scoring errors, mathematical mistakes, or miscalculations in evaluation
☐ Bias, conflict of interest, or improper influence in the procurement process
☐ Unauthorized contact between agency personnel and one or more offerors
☐ Award to a non-responsive or non-responsible bidder
☐ Improper sole-source or emergency procurement justification
☐ Violation of M.G.L. c. 30B competitive procurement requirements
☐ Violation of M.G.L. c. 30, § 39M public works bidding requirements
☐ Violation of M.G.L. c. 149, §§ 44A-H public building construction requirements
☐ Violation of 801 CMR 21.00 procurement regulations
☐ Failure to award to lowest responsible and eligible bidder
☐ Protester's bid or proposal improperly rejected as non-responsive
☐ Failure to comply with filed sub-bid requirements (public construction)
☐ Failure to comply with prevailing wage requirements
☐ Failure to comply with MBE/WBE/DBE participation requirements
☐ Violation of small business or disadvantaged business preference requirements
☐ Improper waiver of material bid requirements for the awardee
☐ Cost or price evaluation errors
☐ Failure to comply with terms and conditions of the solicitation/RFR
☐ Other: [________________________________]

PART A: PROTEST TO THE ATTORNEY GENERAL'S BID PROTEST UNIT

(Public Construction and Public Works Procurements)

BEFORE THE ATTORNEY GENERAL'S BID PROTEST UNIT

COMMONWEALTH OF MASSACHUSETTS

BID PROTEST

Protester: [________________________________]

Awarding Authority: [________________________________]

Project Name: [________________________________]

Bid/Contract No.: [________________________________]

Applicable Statute: ☐ M.G.L. c. 30, § 39M ☐ M.G.L. c. 149, §§ 44A-H ☐ M.G.L. c. 7C, §§ 44-58 ☐ M.G.L. c. 149A

Date of Bid Opening / Award: [__/__/____]

Date of This Protest: [__/__/____]

Filing Fee Enclosed: ☐ $100.00

I. PRELIMINARY STATEMENT

This Bid Protest ("Protest") is submitted by [________________________________] ("Protester"), located at [________________________________], to the Office of the Attorney General, Fair Labor Division, Bid Protest Unit ("Bid Unit"), pursuant to the Bid Unit's authority to investigate alleged violations of public bidding laws.

Protester challenges the [☐ bid rejection / ☐ contract award / ☐ bidding process] by [________________________________] ("Awarding Authority") in connection with [________________________________] ("Project"), Bid/Contract No. [________________________________].

II. IDENTIFICATION OF VIOLATION

The following law was allegedly violated:

☐ M.G.L. c. 30, § 39M -- Public works construction bidding

☐ M.G.L. c. 149, §§ 44A-44H -- Public building construction bidding

☐ M.G.L. c. 7C, §§ 44-58 -- Public building construction (state projects)

☐ M.G.L. c. 149A -- Alternative delivery methods (Construction Manager at Risk)

Specific provision(s) violated: [________________________________]

III. DETAILED DESCRIPTION OF ALLEGED VIOLATION

Protester alleges the following violation(s) of the public bidding laws:

1. [________________________________]

2. [________________________________]

3. [________________________________]

4. [________________________________]

(Provide a detailed description of the alleged violation, including all relevant facts, dates, and participants)

IV. STATEMENT OF FACTS

1. On [__/__/____], the Awarding Authority advertised the Project for bids.

2. The bid specifications required [________________________________].

3. On [__/__/____], bids were opened. The following bids were received:

4. On [__/__/____], the Awarding Authority [awarded the contract to / rejected the bid of] [________________________________].

5. [________________________________] (additional relevant facts).

6. [________________________________] (additional relevant facts).

V. RELIEF REQUESTED

☐ Investigation by the Bid Protest Unit into the alleged violation

☐ Hearing before the Bid Protest Unit

☐ Determination that the Awarding Authority violated the public bidding laws

☐ Recommendation that the Awarding Authority [cancel the award / re-bid the project / award to the lowest responsible and eligible bidder]

Note: Only courts can issue mandatory orders or award monetary damages. Protester reserves the right to file a civil action in Superior Court seeking injunctive and declaratory relief.

VI. FILING FEE

A non-refundable filing fee of $100.00 is enclosed, payable by:

☐ Credit card via www.masspays.com/fld

☐ Cashier's check payable to the Commonwealth of Massachusetts

☐ Money order payable to the Commonwealth of Massachusetts

☐ Certified check payable to the Commonwealth of Massachusetts

VII. SIGNATURE

Signature: _________________________________

Printed Name: [________________________________]

Title: [________________________________]

Organization: [________________________________]

Address: [________________________________]

City, State, ZIP: [________________________________]

Telephone: [________________________________]

Email: [________________________________]

Date: [__/__/____]

Submit to:

Office of the Attorney General
Fair Labor Division, Bid Protest Unit
One Ashburton Place, 18th Floor
Boston, Massachusetts 02108-1518

Or by email: [email protected] (submit Protest as PDF attachment)

PART B: PROTEST OF STATE PROCUREMENT (COMMODITIES AND SERVICES)

(OSD / 801 CMR 21.00 Procurements)

BEFORE THE OPERATIONAL SERVICES DIVISION

COMMONWEALTH OF MASSACHUSETTS

BID PROTEST -- STATE PROCUREMENT

Protester: [________________________________]

RFR/Solicitation No.: [________________________________]

Statewide Contract No.: [________________________________] (if applicable)

Solicitation Title: [________________________________]

Procuring Department/Agency: [________________________________]

Date of Award / Adverse Action: [__/__/____]

Date of This Protest: [__/__/____]

I. PRELIMINARY STATEMENT

This Bid Protest ("Protest") is submitted by [________________________________] ("Protester"), located at [________________________________], to the Operational Services Division ("OSD"), Executive Office for Administration and Finance, Commonwealth of Massachusetts, pursuant to 801 CMR 21.00.

Protester challenges the [☐ solicitation terms / ☐ evaluation / ☐ award / ☐ rejection of Protester's response] in connection with RFR/Solicitation No. [________________________________] ("RFR"), issued by [________________________________] ("Procuring Department"), which sought [________________________________] (brief description of commodities/services procured).

II. TIMELINESS

1. On [__/__/____], the Procuring Department [issued the RFR / posted the award / rejected Protester's response].

2. Protester first knew or should have known of the facts giving rise to this Protest on [__/__/____].

3. This Protest is filed on [__/__/____].

4. Protester submits that this Protest is timely.

III. STANDING

1. Protester submitted a timely response to the RFR on [__/__/____].

2. Protester is an actual or prospective bidder/proposer with a direct economic interest.

3. Protester is aggrieved by the Procuring Department's [solicitation terms / evaluation / award].

IV. GROUNDS FOR PROTEST

1. [________________________________]

2. [________________________________]

3. [________________________________]

4. [________________________________]

V. LEGAL ARGUMENT

The Procuring Department's [solicitation terms / evaluation / award] violated 801 CMR 21.00 and/or M.G.L. c. 7, §§ 4, 4A, 22 because [________________________________].

[________________________________] (detailed legal argument).

VI. REQUESTED RELIEF

1. ☐ Cancel the solicitation;
2. ☐ Cancel the award;
3. ☐ Re-evaluate responses;
4. ☐ Re-issue the RFR;
5. ☐ Award the contract to Protester;
6. ☐ Other: [________________________________].

VII. SIGNATURE

Signature: _________________________________

Printed Name: [________________________________]

Title: [________________________________]

Organization: [________________________________]

Address: [________________________________]

Telephone: [________________________________]

Email: [________________________________]

Date: [__/__/____]

Submit to:

Operational Services Division
One Ashburton Place, Room 1017
Boston, Massachusetts 02108

PART C: PROTEST OF LOCAL GOVERNMENT PROCUREMENT

(M.G.L. Chapter 30B Procurements)

BEFORE THE OFFICE OF THE INSPECTOR GENERAL

COMMONWEALTH OF MASSACHUSETTS

BID PROTEST -- LOCAL GOVERNMENT PROCUREMENT (CHAPTER 30B)

Protester: [________________________________]

Awarding Authority (Municipality/District): [________________________________]

Solicitation/IFB/RFP No.: [________________________________]

Solicitation Title: [________________________________]

Date of Award / Adverse Action: [__/__/____]

Date of This Protest: [__/__/____]

I. PRELIMINARY STATEMENT

This Bid Protest ("Protest") is submitted by [________________________________] ("Protester"), located at [________________________________], to the Office of the Inspector General ("OIG"), pursuant to its authority to review compliance with M.G.L. c. 30B (Uniform Procurement Act).

Protester challenges the [☐ solicitation terms / ☐ evaluation / ☐ award / ☐ rejection] by [________________________________] ("Awarding Authority") in connection with [________________________________] ("Procurement").

Important Note: The OIG's determination on Chapter 30B protests is non-binding. The OIG does not have authority to issue mandatory orders. Protester may alternatively or additionally file a civil action in Superior Court.

II. ALLEGED CHAPTER 30B VIOLATIONS

☐ Failure to use competitive bidding for procurement over statutory threshold (M.G.L. c. 30B, § 5)

☐ Failure to use competitive sealed proposals for procurement over statutory threshold (M.G.L. c. 30B, § 6)

☐ Improper sole-source procurement (M.G.L. c. 30B, § 7)

☐ Failure to award to lowest responsible and responsive bidder

☐ Improper rejection of lowest bid

☐ Evaluation criteria not disclosed or not properly applied

☐ Conflict of interest in the procurement process

☐ Failure to comply with public notice requirements

☐ Failure to comply with specifications requirements

☐ Other: [________________________________]

III. FACTS AND DESCRIPTION

[________________________________]

[________________________________]

[________________________________]

IV. REQUESTED RELIEF

1. ☐ OIG investigation and non-binding determination;
2. ☐ Recommendation that the Awarding Authority cancel the procurement;
3. ☐ Recommendation that the Awarding Authority re-bid;
4. ☐ Other: [________________________________].

V. SIGNATURE

Signature: _________________________________

Printed Name: [________________________________]

Organization: [________________________________]

Address: [________________________________]

Telephone: [________________________________]

Email: [________________________________]

Date: [__/__/____]

Submit to:

Office of the Inspector General
One Ashburton Place, Room 1311
Boston, Massachusetts 02108

FILING CHECKLIST

Attorney General Bid Protest Unit (Public Construction):

☐ Protest prepared in writing and signed
☐ Specific public bidding law identified (c. 30 § 39M, c. 149 §§ 44A-H, c. 7C §§ 44-58, or c. 149A)
☐ Detailed description of alleged violation included
☐ $100.00 non-refundable filing fee enclosed or paid online
☐ Protest submitted to AG Bid Protest Unit (mail or email to [email protected])
☐ Copy served on Awarding Authority
☐ Retained copy with proof of delivery
☐ Position statement prepared (due two business days before any hearing)
☐ Calendar the approximate 10-day hearing timeline

OSD Procurement Protest (State Commodities/Services):

☐ Protest prepared in writing and signed
☐ RFR/Solicitation number and Procuring Department identified
☐ Specific grounds stated with supporting facts
☐ Protest submitted to OSD
☐ Copy served on Procuring Department
☐ Retained copy with proof of delivery

OIG Chapter 30B Protest (Local Government):

☐ Protest prepared in writing and signed
☐ Specific Chapter 30B violation identified
☐ Awarding Authority identified
☐ Facts and description provided
☐ Protest submitted to OIG
☐ Copy served on Awarding Authority
☐ Consider whether to file concurrent Superior Court action

All Protests:

☐ Consider filing for injunctive relief in Superior Court (preliminary injunction / TRO)
☐ Preserve all procurement-related documents
☐ Calendar all deadlines

PROTEST REVIEW PROCESSES

Attorney General Bid Protest Unit Process:

1. Receipt and Review: The Bid Unit receives the Protest and the $100.00 filing fee.
2. Initial Determination: The Bid Unit reviews the Protest and determines whether a hearing is necessary.
3. Notice of Hearing: If a hearing will be held, parties receive notice.
4. Position Statements: Parties must submit written position statements no later than two (2) business days prior to the hearing.
5. Hearing: Hearings typically occur within ten (10) days of protest receipt.
6. Decision: The Bid Unit issues a written decision.
7. Limitation: The AG cannot issue mandatory orders or award monetary damages -- only courts can do so.

OSD Procurement Process:

1. Submission: Protest filed with OSD.
2. Review: OSD reviews the protest against 801 CMR 21.00 and applicable statutes.
3. Decision: OSD issues a determination.

OIG Chapter 30B Process:

1. Submission: Protest filed with OIG.
2. Review: OIG reviews compliance with M.G.L. c. 30B.
3. Non-Binding Decision: OIG issues a non-binding determination. The OIG cannot compel the awarding authority to take action.

JUDICIAL REMEDIES

Massachusetts courts are the ultimate forum for resolving bid protests, as administrative remedies are limited:

Superior Court Action

1. Jurisdiction: The Superior Court has jurisdiction over challenges to public procurement decisions.

2. Types of Relief Available:
   - Preliminary injunction / Temporary restraining order (TRO) to stay contract execution
   - Declaratory judgment that the awarding authority violated procurement laws
   - Mandatory injunction directing the awarding authority to award to the proper bidder
   - Monetary damages, including bid preparation costs and lost profits

3. Filing: File a complaint in the Superior Court for the county where the awarding authority is located (or Suffolk County for state agencies).

4. Emergency Relief: For time-sensitive matters, file a motion for a temporary restraining order (TRO) with the complaint.

5. Standard of Review: The court determines whether the awarding authority's decision was:
   - In violation of applicable procurement statutes
   - Arbitrary, capricious, or an abuse of discretion
   - Made without proper authority
   - In violation of constitutional protections

Appellate Review

Decisions of the Superior Court may be appealed to the Massachusetts Appeals Court and subsequently to the Supreme Judicial Court.

REMEDIES AVAILABLE

IMPORTANT NOTES AND PRACTICE TIPS

1. Multiple Pathways: Massachusetts has multiple protest pathways depending on the type of procurement. Identify the correct governing statute before filing.

2. Courts Are Primary: Unlike many states, Massachusetts administrative protest processes are limited. The AG Bid Protest Unit cannot issue mandatory orders, and OIG decisions are non-binding. For enforceable relief, file in Superior Court.

3. Injunctive Relief Is Critical: Because there is no automatic stay, seek a TRO/preliminary injunction in Superior Court immediately if the contract is about to be executed.

4. $100 Filing Fee for AG Protests: Do not forget the non-refundable $100.00 filing fee for protests to the AG Bid Protest Unit.

5. Lowest Responsible and Eligible Bidder: For public construction and public works, Massachusetts law generally requires award to the lowest responsible and eligible bidder. Challenges typically focus on whether the low bidder met responsibility and eligibility requirements.

6. Filed Sub-Bids: For Chapter 149 public building construction, filed sub-bid requirements are strictly enforced. Failure to list required filed sub-bidders is a common ground for protest.

7. Chapter 30B Thresholds: M.G.L. c. 30B establishes dollar thresholds that trigger competitive procurement requirements for local government. Verify the current thresholds.

8. COMMBUYS: State procurements under 801 CMR 21.00 are posted on COMMBUYS (the Commonwealth's eProcurement platform). Monitor COMMBUYS for award notices.

9. Position Statements: For AG Bid Protest Unit hearings, the written position statement (due two business days before the hearing) is critical. Treat it as a trial brief.

10. Prevailing Wage: Challenges involving prevailing wage violations on public works/construction projects may implicate additional statutory frameworks.

11. Preserve Evidence: Immediately upon learning of an adverse award decision, preserve all procurement-related documents, bid tabulations, and correspondence.

This template is provided for informational purposes only and does not constitute legal advice. Consult a qualified Massachusetts attorney before filing a bid protest.

SOURCES AND REFERENCES

• M.G.L. c. 30B -- Uniform Procurement Act (Local Government)
• M.G.L. c. 7, §§ 4, 4A, 22 -- State Procurement Authority
• M.G.L. c. 30, § 39M -- Public Works Construction Bidding
• M.G.L. c. 149, §§ 44A-44H -- Public Building Construction Bidding
• M.G.L. c. 7C, §§ 44-58 -- Public Building Construction
• 801 CMR 21.00 -- Procurement of Commodities and Services
• File a Bid Protest (Mass.gov): https://www.mass.gov/how-to/file-a-bid-protest
• Bid Disputes (Mass.gov): https://www.mass.gov/guides/bid-disputes
• Operational Services Division: https://www.mass.gov/orgs/operational-services-division
• Office of the Inspector General: https://www.mass.gov/orgs/office-of-the-inspector-general