12 Seconds Late: A Public Bid Submitted “Late” and Its Appeal

Contractors who have participated in the public bidding process understand that there must be “strict compliance with the requirements of G.L. c. 149, §§ 44A-44L” or their bid may be rejected.  However, what happens if the Awarding Authority rejects a contractor’s bid because it believes the bid was submitted just a few seconds late?  What kind of recourse does the contractor have to address such a severe penalty as having its bid rejected and losing a valuable opportunity?

We recently represented a subcontractor whose bid was rejected because it allegedly submitted its bid 12 seconds past the deadline. Our client actually had the lowest bid but because it was rejected, a different subcontractor with the second lowest bid was approved by the Awarding Authority.  Our client had three options: 1) file a “bid protest” with the Attorney General’s Office; 2) file an action in Superior Court seeking injunctive relief and/or damages; or 3) submit a formal protest directly to the Awarding Authority asking it to reconsider its decision.  In our case, we filed a bid protest with the Attorney General’s office.  We successfully argued that the wall clock relied upon by the Awarding Authority may have been inaccurate and that the invitation to bid contained ambiguous language as to the time requirements.  The Attorney General’s Office agreed with us and found that the Awarding Authority acted in an arbitrary and capricious manner in its decision to reject our client’s bid based upon a clock with questionable accuracy.  Upon receiving the Attorney General’s opinion, the Awarding Authority reversed its decision and awarded the bid to our client.

The subcontractor who had initially been awarded the bid (for the purposes of this article, let us call them “Vandelay Industries”), was extremely upset because it believed it had complied with the rules and should have been awarded the bid.  Vandelay filed a Petition for Declaratory Judgment and Request for Preliminary Injunction in order to prevent our client from commencing work.  After a hearing before the Superior Court, Vandelay’s Petition was denied and our client was permitted to begin its work.

This case emphasizes the importance of having experienced and effective legal representation whenever there is a dispute over a public bid.  In this case, Vandelay did not retain counsel and appeared at the bid protest hearing alone.  Vandelay did not have an advocate to argue effectively on its behalf.  By the time Vandelay retained counsel, its ability to overturn the Awarding Authority’s decision in our favor had been greatly diminished.  Any contractor engaged in the public bidding process should consider seeking legal representation and do so before it is too late.  Whether it’s 12 seconds or several days, any delay could be fatal.