Massachusetts

Key Agency(ies):  

• The Operational Services Division (OSD) interprets and enforces procurement regulations for the state of Massachusetts, provides forms and policy guidance, and maintains a list of debarred/suspended contractors.
• The Office of the Inspector General (OIG) issues procurement guidance, best practices, and opinions on bid protests.

Key Statute:

• The Uniform Procurement Act (Mass. Gen. Laws ch. 30B) governs procurement procedures for local governments, including competitive bidding, cooperative purchasing, and bid protests.
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Key Regulations:

• The Code of Massachusetts Regulations (Mass. Code Regs.) Title 801, 21.00 governs procurement of commodities or services by Executive branch entities, and sets forth standards for competitive procurement, source selection, and contract management.
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Procurement Types/Highlights:

• Request for Response (RFR) is the primary competitive procurement method
• Competitive sealed bidding
• Sole source procurement
• Reverse auctions

Bid Protests:

Regs Governing Bid Protests:

• There are no specific statutory or regulatory provisions in Mass. Gen. Laws Ch. 30B that set forth procedures or deadlines for filing bid protests.

Eligible Protesters:

• Any bidder or proposer competing for a public contract is eligible to challenge the award of that contract in court on the grounds that the awarding authority did not comply with public bid laws.

Timeliness Rules:

• There is no statutory deadline for filing a bid protest in Massachusetts, but timeliness is critical. Guidance materials from the OIG emphasize that protests should be raised as soon as possible, preferably before contract execution.

Protest Process:

• An RFR (Request for Response) may allow non-successful bidders to request a debriefing after contract execution. These debriefings are designed to identify weak areas of a bidder’s response and suggest improvements for future procurements.
• Massachusetts does not have a statutory provision or regulations establishing an administrative procedure for bid protests.
• However, any bidder or proposer competing for a public contract can challenge the award of that contract in court if the awarding authority did not comply with public bid laws.
• Vendors may bring these bid protests to the local jurisdiction or directly to Superior Court.

Appeals:

• Since there is no formal administrative process, appeals are handled through the court system.
• The protester may bring the complaint to Superior Court, where the matter will proceed de novo.

Claims: 

• The Commonwealth of Massachusetts has waived sovereign immunity for claims brought in state court but not in federal court.
• Claims against the Commonwealth are enforced in Superior Court.
• Claims must be brought within three years after the cause of action accrues (Mass Gen. Laws Ch. 260 § 3A).

Suspension & Debarment:

• The Secretary of Administration must establish and maintain a consolidated list of contractors who are debarred (i.e., not eligible for public contracts or solicitations).
• Lists of debarred or suspended contractors are available here.
• Procurement departments must disqualify any response from a bidder or subcontractor currently subject to any state or federal debarment order or determination.
• The specific causes for debarment and the debarment process are identified in Mass Gen. Laws ch. 29, § 29F(c). Causes for debarment include:
• Fraud or criminal conduct related to public contracting
• Failure to perform or comply with contract requirements
• Violations of procurement laws or regulations

Interesting/Distinctions: 

• The hearing process for suspension/debarment is very detailed and includes specific procedural powers for the hearing officer.