In a recent decision, the Massachusetts Attorney General’s Bid Protest Unit ruled that in certain circumstances a prime or general bidder on public construction projects can use the experience and qualifications of a subcontractor to meet the requirements of the project specifications.
The case, In re Department of Mental Health, Attorney General Bid Protest Decision (February 19, 2016), involved bid documents that required bidders to have at least five years of experience with smoke and fire damper maintenance. The protester argued that the general contractor submitting the low bid did not have such experience. In rejecting the protest, the hearing officer found that the low bidder’s subcontractor’s experience met the qualification.
The ruling is expressly limited to unique circumstances. The word “bidder” usually is limited to the general or prime bidder in public construction. Here, however, the bid documents stated that a sub-bid is called a “bid.” It appears that future bid documents will need similar language for the general or prime bidders to be able to rely on subcontractors’ experience in meeting the requirements for bidders. Our Massachusetts construction lawyers will continue to monitor the impact of this decision.