Contractors bidding public building projects in Massachusetts should take note of a recent Attorney General bid protest decision involving the Lincoln D. Lynch School Roof Replacement Project in Middleborough. The ruling reinforces a critical principle: if your bid is responsive and eligible on its face, an awarding authority cannot rescind an award later based on submittal-stage product choices.
Background
WPI Construction, Inc. submitted the low bid for a Chapter 149 roof replacement project for Middleborough Public Schools (MPS). The specifications listed Tremco as the basis of design and Garland and Simon as acceptable manufacturers, subject to compliance. An addendum required the roofing manufacturer to provide a Preventative Maintenance Program (PMP) staffed by the manufacturer’s direct employees, naming specific PMPs from Tremco, Garland, and Simon as examples.
After bids were opened, MPS awarded the contract to WPI. During submittals, WPI identified Garland as its manufacturer and provided PMP details showing Garland uses local contractors—not direct employees—for PMP services. Initially, MPS acknowledged this arrangement and even referenced a long-term PMP contract with Garland. Weeks later, however, MPS declared WPI’s bid “non-responsive” and attempted to rescind the award.
The AG’s Decision
The Attorney General’s Bid Unit disagreed with MPS’s approach. While confirming Garland’s PMP did not meet the “direct employees” requirement, the AG emphasized that nothing on WPI’s bid form required identification of a manufacturer or PMP at bid time. Eligibility is determined from the bid as filed—not from later submittals. Owners may reject non-compliant products and require substitutes, but they cannot retroactively declare the low bid ineligible based on post-award product proposals.
Key Takeaway’s for Contractors
For contractors, the lesson is clear: your bid will be judged based on what appears on its face, not on product choices revealed during the submittal process. If the bid form does not require identification of a manufacturer or maintenance program, later disagreements over those details cannot retroactively render the bid non-responsive. While owners retain the right to enforce specifications during submittals, their remedy is to require a compliant substitute—not to rescind an award that was properly made.
Contractors should also be proactive. If a specification imposes strict requirements—such as a Preventative Maintenance Program staffed by direct employees—expect the owner to enforce those terms and be prepared to pivot to a product that meets them.
The bottom line is that Massachusetts public bidding law protects contractors from losing awards over submittal-stage disputes. A clean, responsive bid cannot be undone simply because a proposed product falls short, so long as the bid itself satisfies all formal requirement.
*****
This alert is for informational purposes only and may be considered advertising. It does not constitute the rendering of legal, tax or professional advice or services. You should seek specific detailed legal advice prior to taking any definitive actions.