Construction & Public Contracts Group, Hinckley Allen, LLP
Christopher Morog Robert T. Ferguson Partner Partner
Recent Bid Protest Decision Addresses Chapter 90 Prequalification in Light of MassDOT’s Revised Guidance Concerning Valuation of Option Contracts As many of you are aware, MassDOT revised its guidance concerning the valuation of Chapter 90 contracts that contain “option” years. In its 2021 “Chapter 90 Program – Municipal Guidance Document,” MassDOT provided that the “total project value” for Chapter 90 contracts with two year “options” is “determined by multiplying the first year value by three.” n other words – as stated by the Bid Unit of the Massachusetts Attorney General (Bid Unit) – the valuation is based on the “entire potential contract term.” As a result, when it comes to contractor prequalification for Chapter 90 projects, “[o]nly firms that are prequalified to provide services for that total contract value may bid unless a waiver is provided.”
M
assDOT’s recent guidance was at the center of a March 2, 2022 bid protest decision. The case arose out of a Chapter 90 project for road reclamation and paving. A prospective bidder attended the bid opening and attempted to submit a bid. However, town personnel refused to accept the bid because the bidder was not included on MassDOT’s list of prequalified bidders for the project. This prompted a bid protest in which the protestor argued that the bid documents were ambiguous with respect to: (1) the value of the contract; and (2) the amount for which bidders needed to be prequalified. Generally speaking, an ambiguity can arise when bid documents contain language that is subject to different interpretations. This does not mean that there is an ambiguity whenever there is a disagreement about the meaning of a given clause or provision. As the Bid Unit emphasized, in order for an ambiguity to exist, the language must be “susceptible to more than one reasonable interpretation.” The bid documents in this case provided that APRIL 2022
the contract would be for a one year term, with two option years exercisable “[a]t the sole discretion of the Town.” However, the bid documents stated that MassDOT prequalification was required and reflected MassDOT’s revised valuation policy: “[v]aluation for purposes of MassDOT Prequalification is based on one (1) year plus two (2) years at the discretion of the Town to arrive at an estimated total Prequalification continued on page 53
“BUY FROM THE ADVERTISERS IN CONSTRUCTION OUTLOOK”
51
