Multiple Protests of Fort River Bids Aired at Hearing with Attorney General

The Massachusetts Attorney General (AG) Fair Labor Division conducted a public hearing on bid protests to the Fort River Elementary School project on October 29. The hearing was held over Zoom. Protests were made by the Foundation for Fair Contracting of Massachusetts (FFCM), the North Atlantic States Regional Council of Carpenters (Carpenters’ Union), and two of the general contractors (GCs) who bid on the project (J&J Contractors and Fontaine Bros.) against the low GC bidder, CTA Construction Managers (CTA) and the Town of Amherst as the awarding authority. A separate protest was filed by Fontaine Bros. against J&J Contractors. Each party was represented by a legal team during the four-hour investigative proceeding that was led by Assistant Attorney General Shannan Leelyn.  

Complaints against CTA and The Town of Amherst
The GC bidder known currently as CTA Construction Managers, LLC included in its portfolio work done by the entity known as CTA Contracting Company, Inc. in order to meet pre-qualification requirements but failed to disclose legal actions against CTA Inc. For example, a Department of Unemployment Assistance (DUA) judgment against CTA Inc. earlier this year for a payroll violation was not reported but several projects done under the name CTA Inc. were included as proof of building experience.

The scoring criteria used by the project’s pre-qualification committee awarded the same number of points (23 out of 23) to all three GCs in the category of similar project experience. However, Fontaine Bros. said that CTA LLC had only completed one project in the last 5 years comparable to the Fort River school project, and that the other projects listed by CTA were either more than 5 years ago, smaller, privately owned, were renovations as opposed to new construction, or were not schools. Fontaine Bros., they argued, has much greater experience in the type of project bid on and that the scoring should reflect that difference. 

The Carpenters’ Union, FFCM, and Fontaine Bros. noted that the requisite amount of subcontracting with Veteran Owned Businesses was not met by CTA’s bid package. J&J agreed and pointed out that the Town of Amherst allowed CTA to submit a revised plan after bids were received to correct this deficiency. They argued that by prequalifying CTA when the town was aware that they did not meet requirements and allowing them to make changes after bids were received gave CTA an unfair advantage.  

The protesting groups allege that CTA included a subcontractor (Barber Drywall) in their bid package that has violations against it, which would make it ineligible. This, they say, provided unfair advantage to CTA by carrying an unqualified/ineligible subcontractor in its bid.

Defense by CTA and Town of Amherst
CTA lawyer John McNamara and Town of Amherst lawyer Richard Holland of KP Law spoke in defense of their clients against the allegations. McNamara suggested that because CTA was the only “open shop” (i.e., non-union) GC to bid on the project, the multiple complaints against it amounted to a “shotgun approach” in a conflict between open shop and union contractors. Holland characterized the bid protest proceedings as “petty squabbles between union and non-union shops.”

McNamara stated that CTA Inc and CTA LLC are one and the same because the Division of Capital Asset Management and Maintenance (DCAMM) declared them to be so as of 2016. He argued that VBE requirements are not statutory and there is no VBE-specific local bylaw so Amherst as the municipality gets to decide how to manage this issue. Holland concurred and suggested that whoever the low bidder was could have asked for more time after the bids were received to meet any goals. McNamara stated that there was no action or judgment by the DUA, merely a notice in May 2024 and a dissolution of judgment in October. Both lawyers objected to the complaint regarding Barber Drywall’s qualification because it was made recently rather than earlier this year.   

Responses/Questions by Attorneys General
AG Leelyn had several questions about the project’s prequalification process, asking who served on the committee and whether a rubric was used to assess the applicants. Holland deferred to Bob Peirent, Capital Projects Manager for Amherst, who said that the Owner’s Project Manager, Ansr Advisory, “brought their rubric system with them to the process.” She asked whether the town agreed that if one GC had completed 20 similar projects and another had done just one, should they have awarded the same score on experience and Holland said “Yes.” She followed up by asking if the town had employed this binary system on other building projects and Peirent responded that for the Jones Library project, “we deferred to Biddocs online which has their own built in rubric system in their scoring.” (Author’s note: All three GCs involved in this bid protest are also potential bidders on the Jones Library demolition/expansion project, plus one other GC: Colantonio Inc.)

Leelyn asked if the Town had any concerns about CTA listing projects by both CTA Inc and CTA LLC and Holland responded by saying that “If it’s good for DCAMM, it’s good for the town.” Leelyn followed up: “Does it concern the town at all that while CTA LLC was adopting or inheriting the experience of another company both for similar projects and for VBE experience, it was not listing the judgments and litigation history that belong to CTA Inc?”

However, when she asked if they were concerned that they wanted to be considered the same for qualification purposes but separated in terms of reporting judgments, Holland replied “No, because they’re two different companies.” Again, Leelyn: “Is the town comfortable with treating CTA LLC and CTA Inc as one company for some purposes and two companies for another set of purposes?” Holland replied “The town is satisfied with the response that CTA has provided.” One of CTA’s owners then spoke up saying “I hope I’m not speaking out of turn. There was a comment that we didn’t include our, I don’t know what the phrase was, dings, but that’s that’s not accurate. We include our entire legal history. Some cases obviously take longer than others to get settled so our entire history is included as needed on the SoQ (Statement of Qualifications) and DCAMM update.”

Complaint against J&J 
In a separate issue that pitted two of the companies that had joined forces against CTA, Fontaine Bros. protested that J&J Contractors should not have been considered eligible to bid on the project. At the time of the submission deadline for GC prequalification, Fontaine Bros. alleged that J&J’s single project capacity was $72M, less than the estimated project cost ($78M). The RFQ requires that to be prequalified, GCs must be eligible at the time of the application. J&J applied to have its capacity increased 6 weeks after the submission deadline of April 17, 2024. 

Lawyers for J&J argued that they had told Ansr Advisory that they had applied to DCAMM for a higher capacity ($89M) during the prequalification process and had been told that this requirement could be changed. They also argued that the pre-qualification committee has broad authority and discretion to amend SoQa at the bidding stage.

Outcome
AG Leelyn invited all parties to submit closing statements by the end of business Friday, November 1. A ruling will follow within three weeks.