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Proven Counsel for Construction Projects

In preparing and submitting bids for public construction, it is important to comply with all of the Instructions to Bidders. This was highlighted in a recent decision by the Attorney General’s Bid Unit.

The case involved a plumbing trade bid on a school project in North Reading, Mass. The bid included Alternates, concerning which bidders were instructed, “All bidders shall include a price for each alternate in the designated space on the bid form… If no change in the base bid is required, enter ‘No Change’.” Alternate 2 affected the plumbing scope of work and, accordingly, four of the five bidders inserted prices ranging from $38,000 to $73,000 for this item. However, the low bidder ( and isn’t it always the low bidder?) wrote “N/A” on the Alternate 2 line. When the Town accepted this bid, the second bidder protested.

The Town argued that at most, entering “N/A” was a mistake involving far less than the $155,000 spread which existed between the two low bids. Since the bidding outcome couldn’t be affected, the Town reasoned it should be allowed to waive the mistake and accept the bid. That is precisely the position the AG’s office took in a number of recent protests involving omitted addenda or alternates, including one last year in which the AG ruled that a low bidder’s failure to acknowledge an alternate worth less than the difference to the next bid was a “minor deviation” which the awarding authority could overlook.

Not so here. This time, the hearing officer determined that “N/A” meant “not applicable”, which could be interpreted as a rejection of the Alternate. Since the bidder would not be bound to perform the Alternate, its bid appeared to be conditioned on performing a lesser scope of work than the other bidders. While acknowledging that it would have been acceptable to put zero or “no change” for Alternate 2, the hearing officer concluded that indicating the Alternate was not applicable rendered the bid obscure and incomplete, thereby requiring its rejection.

The case is Sagamore Plumbing and Heating, Inc. v. Town of North Reading (5/28/13 decision). It can be accessed on the Attorney General’s web site at:

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