Superior Court Affirms Right of Awarding Authority to Reject Low Construction Bid Based Solely on Awarding Authority’s Past Contract Experience with Bidder

Posted on September 30, 2021

Cape Cod Builders, Inc. v. Town of Plymouth, et al., Plymouth Superior Court, Docket No. 2183CV603 (Order dated Sept. 13, 2021):

In what appears to be a case of first impression, the Massachusetts Superior Court has affirmed in writing that an awarding authority may reject a low bid based solely on the awarding authority’s past experience working with the bidder.

In this action, Plymouth rejected the low bid on a roof reconstruction project based solely on the Town’s prior experience with the bidder on an earlier Town construction project.  Plymouth asserted that the bidder had performed unsatisfactory work on the earlier project, and that the bidder’s principal had been rude and unprofessional toward the Town’s staff.  The disgruntled bidder asked the Court to enjoin the Town from proceeding with an award of contract to the next bidder, alleging that the Town’s decision to reject its bid was wrongful and based on personal animus toward its principal.  The Court rejected the request.  It credited the Town’s affidavit evidence of the bidder’s general inability to work in harmony with the Town’s staff and other elements of labor, an important component of the definition of a “responsible and eligible bidder” under the public building construction bid laws.  The Court held that the Town’s “complaints [against the bidder] evidence a genuine dissatisfaction with [the bidder’s] previous performance of a public construction project and exhibit a fact specific, reasonable objective basis for the Town’s decision that [the bidder] was not a ‘responsible’ and ‘eligible’ bidder pursuant to G.L. c. 149, § 44A(1)(c).”