Contracts for the construction of public buildings estimated to cost above $100,000 “shall be awarded to the lowest responsible and eligible general bidder.” G. L. c. 149, § 44A (2) (D). The question before us is whether, when an awarding authority is making a determination as to bidder re
1. Background. We recite briefly the background facts, which are not contested in any relevant respect. In February, 2008, the town of Holliston (town) solicited bids for the construction of a new police station. The plaintiff, Barr Incorporated (Barr), submitted the lowest bid. The town, however, subsequently determined that the plaintiff was not a “responsible and eligible general bidder,” G. L. c. 149, § 44A (2) (D), and that the contract should instead be awarded to the next-lowest bidder, Statewide Engineering & Construction Co., Inc. (Statewide).
In determining that Barr was not a responsible bidder,
Todd proceeded by contacting eight municipalities that had previously retained the plaintiff as a contractor. He determined that six of them had an “overall negative” impression of Barr’s work. Compiling Todd’s report with information in DCAM’s file, the town administrator concluded that, of the eighteen public projects awarded to Barr on which the town had information, seven had resulted in “negative experiences” for the project client. This conclusion was reported to the town committee
The day before the town was to award the project, Barr filed a complaint in Superior Court against the town, seeking injunc-tive and declaratory relief. In its complaint, Barr alleged generally that the town’s investigation fell “outside the scope of what it was permitted to do pursuant to” State law. Barr alleged also that the town “acted arbitrarily and capriciously” in determining that Barr was not a responsible bidder.
Barr subsequently moved for summary judgment on its claim for declaratory relief. In denying Barr’s motion, the judge noted that his decision turned solely on the narrow, and potentially dispositive, legal issue whether, in determining that Barr was not a responsible bidder, the town was constrained to consider only DCAM’s file on Barr and a statutorily mandated “update statement” to that file. See G. L. c. 149, § 44D (1) (a). Because the judge concluded that the statute did not constrain the town in this manner, he determined that Barr was not entitled to summary judgment in its favor. The judge specifically declined to address “whether [the town’s] investigation was fair and thorough,” or the ultimate issue “whether [the town’s] refusal to honor Barr’s low bid was arbitrary.” He then allowed the parties’ joint motion, pursuant to Mass. R. Civ. P. 64 (a), as amended,
2. Discussion. A report by a judge in the Superior Court brings before us only the propriety of the ruling or order reported. G. L. c. 231, § 111. See Barnes v. Metropolitan Hous. Assistance Program,
Spurred by concerns “in the press and elsewhere about corruption in the award and supervision of [public] construction contracts,” Ward v. Peabody,
To be “Responsible” as defined in G. L. c. 149, § 44A, a bidder must “demonstrably possess[] the skill, ability and integrity necessary to faithfully perform the work called for by a particular contract, based upon a determination of competent workmanship and financial soundness in accordance with the provisions of [G. L. c. 149, § 44D].”
We have described at length the threefold function of these statutory requirements. See generally Brasi Dev. Corp. v. Attorney Gen.,
Yet, even under the 1980 statute, the entity responsible for making a final determination of bidder responsibility remains the awarding authority, not DCAM. This principle was well established under the public bidding statute that existed prior to 1980. See Capuano, Inc. v. School Bldg. Comm. of Wilbraham,
Certainly, an awarding authority’s discretion in determining whether a bidder is responsible and eligible is not unconstrained. The awarding authority may only contract with a bidder certified by DCAM. See G. L. c. 149, § 44D. Even in selecting among certified bidders, G. L. c. 149, § 44D (6), requires that awarding authorities “shall consider the information submitted by the bidder in the update statement.” DCAM regulations require further that awarding authorities “must review the [cjontractor’s certification file from DCAM.” 810 Code Mass. Regs. § 8.04(2) (2005).
However, nothing in either the statute or DCAM’s regulations expressly precludes the awarding authority from conducting an independent investigation into the past performance of potential bidders. Moreover, the statutory requirement that awarding authorities in fact read and consider information related to a bidder’s performance in at least some past projects does not support the inference Barr suggests, that the Legislature wished to prevent awarding authorities from considering the bidder’s performance in a wider sample of such projects, as the town did here. Nor does permitting awarding authorities to conduct independent background investigations compromise the principle that “all general contractors and subbidders [be placed] on an equal footing in the competition to gain the contract.” John T. Callahan & Sons v. Malden,
The statutory requirement that contracts be awarded to the lowest qualified bidder is intended to “facilitate[] the elimination of favoritism and corruption as factors in the awarding of public contracts.” Id. at 758. Barr emphasizes that, in the present case, the town administrator agreed that the town’s investigation of Barr was “more extensive” than its investigation of Statewide, the next lowest bidder. The town administrator explained that he devoted greater attention to Barr because his initial inquiries revealed particular cause for concern with respect to Barr’s performance. Barr, however, contends that the town’s conduct demonstrates that if awarding authorities are permitted to
We are persuaded that any such risk is adequately addressed by other aspects of the statute.
Bidders may also challenge contract awards by filing a complaint in the Superior Court. Where an awarding authority rejects a bidder “for lack of competence,” that decision should be “justified on the record” compiled by the authority. Fred C. McClean Heating Supplies, Inc. v. Westfield Trade High Sch. Bldg. Comm..,
In light of these overlapping protections against the arbitrary or fraudulent award of public building contracts, we are not convinced that the “equal playing field” established by G. L. c. 149, §§ 44A-44H, would be compromised by allowing awarding authorities to conduct their own investigations of bidder responsibility. In any event, as noted above, the statute contains no language effecting a blanket ban on such investigations.
We are mindful also, as the Inspector General and the Attorney General point out, that the information garnered from an awarding authority’s independent investigation of a bidder may at times be of equal or greater recency and relevance than the information in DCAM’s certification file and the bidder’s update statement. DCAM’s certification file need include only a “representative sample” of a contractor’s public sector projects, and will not necessarily reflect performance in any of the contractor’s private sector work. 810 Code Mass. Regs. § 4.06(2). Accordingly, DCAM’s certification file may exclude a significant portion of the work history of contractors with extensive experience, or with experience primarily in private sector construction projects. Awarding authorities should not be precluded from assembling a more complete picture of a contractor’s qualifications than that available from the certification file and update statement alone.
In sum, we cannot conclude that the town exceeded its statutory authority by conducting an investigation into Barr’s performance in past projects.
Judgment affirmed.
Notes
We acknowledge the amicus brief of the Attorney General and the Inspector General on behalf of the town of Holliston (town), as well as that of Associated Builders and Contractors, Inc., on behalf of Barr Incorporated (Barr).
The project is estimated to cost approximately $4.9 million. The project is therefore exempt from the mandatory bidder prequalification procedure provided by G. L. c. 149, § 44D½, for projects whose costs are expected to exceed $10 million. See Fordyce v. Hanover,
The town does not dispute that Barr is an “eligible” bidder. See note 7, infra.
The Department of Capital Asset Management (DCAM) maintains a file of evaluations submitted on each certified contractor. G. L. c. 149, § 44D (7).
The term “[ajwarding [a]uthority” refers generally to the State or municipal entity undertaking the building project. See 810 Code Mass. Regs. § 8.01 (2005).
While this issue has not been addressed by a Massachusetts appellate court, we note that the United States Court of Appeals for the First Circuit reached the same conclusion in another case involving Barr. See Barr, Inc. vs. Northborough, U.S. Ct. App., No. 07-2058 (1st Cir. Sept. 28, 2007).
An “[e]ligible” bidder is one “able to meet all requirements for bidders or offerors set forth in [G. L. c. 149, §§ 44A-44H,] and not debarred from bidding under [G. L. c. 149, § 44C,] or any other applicable law, and who shall certify that he is able to furnish labor that can work in harmony with all other elements of labor employed or to be employed on the work.” G. L. c. 149, § 44A.
The office of the Inspector General is statutorily empowered to “act to prevent and detect fraud” in public contracts and to “recommend policies” in support of this mission. G. L. c. 12A, §§ 7, 8. We note that he and the Attorney General, as amici, support the town’s interpretation of the statute.
In deciding as we do the narrow legal issue now before us, we take no view as to whether the town’s investigation was appropriately conducted, a matter that has yet to be adjudicated in the Superior Court.