Legal Corner

Construction & Public Contracts Group, Hinckley Allen, LLP Christopher Morog Partner Robert T. Ferguson Partner

The Bid Unit of the Massachusetts Office of the Attorney General Finds a Violation of the Proprietary Specifications Law

In a December 2022 bid protest decision, the Bid Unit of the Massachusetts Office of the Attorney General (“Bid Unit”) considered whether a public awarding authority violated the proprietary specifications requirements of M.G.L. c. 30, 39M(b), sometimes referred to as the Proprietary Specifications Law. Concluding that a violation occurred, the Bid Unit allowed the protest.

As you are undoubtedly aware, Section 39M “mandates that specifications for construction contracts ‘shall be written to provide for full competition for each item of material to be furnished under the contract.’” This means that for each item of material, the specifications must provide for either: (1) a minimum of three named brands; or (2) a description of material that can be met by a minimum of three manufacturers or producers. The specifications must also provide for an equal of any one of the named brands or described materials.

In doing so, the statute generally disallows “proprietary specifications” that name a single specific item or describe the item in such a way that only one specific product can meet the requirement of the specification. That said, proprietary specifications are permissible in certain limited circumstances where, after reasonable investigation, the awarding authority has determined (in writing) that “sound reasons in the public interest” justify a proprietary specification requirement in connection with a given project.

In this case, the project entailed the installation ofnewsyntheticturffieldsatfivesites,aswellasrelated earthwork and improvements. The specifications required “Greenfield USA” turf, “or approved equal.” According to the awarding authority’s engineer, this type of “woven” turf was deemed to be stronger than other types of “tufted” turf materials. The specifications included language that purported to require submission of potential “substitute” turf products “5 days prior to bid date.” Although the awarding authority believed that there were at least four vendors that could provide woven turf products, the awarding authority did not share this

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Legal Corner continued from page 43 information with bidders prior to bid opening.

Although the Bid Unit did not have jurisdiction to decide what product is or is not an “equal” under the statute, the Bid Unit did have jurisdiction to decide whether the awarding authority complied with the Proprietary Specifications Law. According to the Bid Unit, the awarding authority ran afoul of its statutory obligations in three ways: 1. The awarding authority “failed to identify three distinct products that would meet its specifications.” Apparently, there was unrebutted evidence that of the four vendors that the awarding authority believed could meet the specifications, three of the vendors were related entities and one of them was the “umbrella” company. The Bid Unit stated that “[w]here the products identified by the awarding authority’s expert are provided by a single entity, albeit through related companies, there is no real competition.” 2. The awarding authority “failed to unambiguously identify alternative products pre-bid.” The Bid Unit concluded that the

specifications were ambiguous and could be re-written to “unequivocally clarify the bidder’s right to propose a substitute product . . . .” 3. Lastly, the awarding authority “wrongfully required that substitute products be submitted prior to bid opening.” The Bid Unit made clear that it has “consistently stated that product submittal is to be conducted after contract award and cannot form the basis for rejection of a bid.”

This case underscores the importance of reviewing specifications for compliance with applicable statutory requirements when it comes to compliance with the Proprietary Specifications Law. An awarding authority’s failure to comply with the requirements of the statute could jeopardize a given procurement. Any questions concerning specifically-identified products or materials or acceptable substitutes should be addressed during

the pre-bid question and answer stage. n