May 11, 2012
When an awarding authority is reviewing whether a bidder is responsible under M.G.L. c. 149 § 44A(2)(D), its review is not limited to DCAM’s certification file and the bidder’s update statement. Rather, the awarding authority may conduct its own investigation.
In Barr, Inc. v. Holliston, slip. op. SJC-10899 (May 3, 2012), Barr was the low bidder for the construction of a new police station. The awarding authority, the Town of Holliston, reviewed the DCAM file and conducted an Internet search regarding Barr. The results of these two queries raised some red flags and prompted the Town Manager to direct a Town police detective to conduct an investigation into Barr’s past projects. The detective determined that six of eight municipal awarding authorities for which Barr previously had worked had an “overall negative impression” of Barr’s work.
Based on this information and the information it previously reviewed, including the DCAM certification file, the Town found that Barr, while an eligible bidder, was not a responsible bidder and awarded the project to the next lowest bidder. Barr brought a lawsuit challenging the Town’s determination that Barr was not a responsible bidder, arguing that the Town was not allowed to investigate beyond the DCAM certification file. After a Superior Court ruled that the Town acted properly, the case was transferred to the Supreme Judicial Court. The issue presented to the Court was “whether G.L. c. 149 § 44D, prevents an ‘awarding authority’ from conducting any independent investigation into bidder responsibility.”
The Court concluded that nothing in Chapter 149 or in DCAM’s regulations prohibits an investigation beyond the DCAM certification process. It is the awarding authority, not DCAM, that retains the ultimate authority to determine whether a bidder is responsible. This should be good news for all of the “responsible bidders” out there as well as for the taxpayers of Massachusetts.
Should you have any questions with regard to the above, please contact your attorney or an attorney in our Construction practice group.
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