“Awarding Authority Can Look Beyond DCAM Materials When Determining “Responsible” Bidder”
The highest Court in Massachusetts, the Massachusetts Supreme Judicial Court (SJC)
The highest Court in Massachusetts, the Massachusetts Supreme Judicial Court (“SJC”), has just ruled that an Awarding Authority may look beyond the Department of Capital Asset Management (“DCAM”) certification materials in determining whether a bidder is “responsible.” Barr Incorporated v. Town of Holliston (Lawyers Weekly No. 10-066-12-May 3, 2012). This case unquestionably strengthens Awarding Authorities’ abilities to select their desired contractors, but not without limits.
In this case, Barr was the lowest bidder. In determining “responsibility”, the Town first looked to the DCAM certification materials, but then also conducted an Internet search. Concerned with what they found, the Town tasked one of its Police Detectives to perform a more thorough investigation. The Detective contacted other municipalities who had retained Barr and found they had an “overall negative” impression of Barr. After considering the DCAM materials and the Detective’s materials, the Town concluded Barr was not a “responsible” bidder and proceeded to award the contract to another bidder.
Barr filed a lawsuit arguing the Town could only consider DCAM certification materials and, thus, it was improper for the Town to consider the materials gathered from its own investigation. The SJC summarily rejected this argument stating nothing in the statutes prevented an Awarding Authority from conducting its own investigation. The Court added:
Awarding authorities should not be precluded from assembling a more complete picture of a contractor’s qualifications than that available from the [DCAM] certification file and [the bidder’s] updated statement alone.
The SJC felt the statutory safeguards would protect bidders from Awarding Authority abuse (i.e., improperly favoring one contractor over another). For example, an Awarding Authority must notify DCAM when it determines the low bidder is not responsible and eligible. Additionally, DCAM has the ability to decertify a prevailing bidder if DCAM concludes the bidder obtained the contract by fraud, collusion, corruption or other impropriety.
Finally, the SJC noted rejected bidders have the right to challenge the actions of Awarding Authorities in Court. Indeed, in Court, Awarding Authorities would be required to “justify on the record” their conduct. For example, the Awarding Authority is required to justify its determination that a rejected bidder lacked competence. Also, in order to prevent favoritism, the Awarding Authority is required to justify why they limited their investigation to DCAM materials only for one bidder while reviewing DCAM materials and non-DCAM materials for another bidder. Likewise, the Awarding Authority is required to justify why they precluded a rejected bidder from rebutting the Awarding Authority’s non-DCAM investigation materials. In light of these safeguards, the SJC felt bidders were sufficiently protected from Awarding Authorities improperly favoring one contractor over another.
In summary, Awarding Authorities have the right to review DCAM materials and non-DCAM materials when deciding whether a bidder is “responsible.” However, if challenged, they will be required to justify their decisions.