Pursuant to M.G.L. c. 30, §39M, Awarding Authorities on public bid projects are required to prepare specifications allowing full competition for specified materials in almost all circumstances (e.g. except where sound reasons in the public interest require a single source). The goal of c. 30, §39M is to encourage honest and open competition, and to produce the lowest price for the public.
To assure full competition for materials, the statute requires the Awarding Authority to provide in the specifications either a minimum of three named brands or a description which can be met by a minimum of three manufacturers, and to allow the equal of the named or described material.
Too often, however, architects preparing bid documents for public projects, have drafted specifications favoring a particular manufacturer's product, or have not done sufficient investigation to identify three sources. As a result, many public project specifications have skirted the edge of statutory compliance by describing some performance characteristics of the required material, followed by the naming of a single manufacturer with the note "or equal."
That shortcut approach effectively undermines the purpose of c. 30, §39M. It substantially reduces competition for materials because it places on the bidder the burden of determining what equal materials might be acceptable to the Awarding Authority. Any bidder who reduces its bid price by relying on a less expensive equal to the named product runs the risk of having that equal rejected, and being compelled to supply the named product costing much more. Placing such risks on general and sub-bidders does not increase competition or reduce the price of public construction. It does the opposite by discouraging bidders from relying on less costly equals in arriving at their bid prices.
Fortunately, this corner cutting approach to specifying materials has been soundly repudiated by the Massachusetts Appeals Court. In a recent decision (See Construction Law Comments, Spring 2002), the Appeals Court ruled that bid specifications providing the name of a single manufacturer and placing the burden on bidders to discover alternative equals violated c. 30, §39M. The Court also awarded the contractor in that case its increased cost to purchase the specified material where the Awarding Authority was unwilling or unable to specify three sources of supply.
The clear impact of this appellate decision is that all public Awarding Authorities in Massachusetts must spell out in their bid documents the availability and identity of at least three sources of specified materials. It is no longer acceptable to make bidders guess at the availability of acceptable equals. By requiring an Awarding Authority which failed its statutory obligation to specify at least three sources of material to bear the contractor's increased cost of material procurement, the Court has put teeth in c. 30, §39M. Making the drafter of public bid specifications financially accountable to contractors should encourage compliance by all Awarding Authorities and their architects.
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