AG Denies Bid Protest over School Project
The Attorney General’s Fair Labor Division denied on December 4, 2024, bid protests made by two workers’ groups and two general contractors against the Amherst elementary school project. An investigative summary written by Assistant Attorney and General Bid Unit Hearing Officer Shannan Leelyn indicated that while there were problems with the town’s prequalification procedures, they did not meet “the burden of proving the procurement was improper.” The resolution of the bid protest, filed in early October 2024, clears the path for the town to execute construction contracts with the low bidder, CTA Construction Managers, LLC.
The North Atlantic States Regional Council of Carpenters, Foundation for Fair Contracting of Massachusetts, J&J Contractors, Inc., and Fontaine Bros., Inc. challenged several actions of the town including: CTA should not have been awarded the same number of points as other bidders for “Similar Project Experience” and should have been disqualified because of labor and wage violations and failing to have a timely and proper veteran-owned business plan. The town and CTA countered that the protests should have been filed months earlier (at the time of prequalification rather than bidding), all contractors had at least one “similar project” so should receive the same points for experience, veteran-owned business requirements were met by an extended deadline, and previous violations and judgments restrict subcontracts but are not disqualifying.
Leelyn noted that the bid protestors had to clear a high bar to succeed “since such a decision may be disturbed only upon a showing it was arbitrary or capricious, or the product of collusion or fraud. G.L. c. 149, § 44D½.” While she agreed with the protestors that only one of the ten projects listed by CTA complied with the stated five year look-back period and described the all-or-nothing scoring employed by the town as “unusual,” she said that “the Town’s significant error, however, did not change CTA’s score, as the Town’s rubric provided that every contractor with just one ‘Similar Project’ would be awarded all 23 points.” She concluded that “the Town flatly failed to exercise due scrutiny of CTA’s project listing, but awarding 23 points was not arbitrary and capricious here.” She further found that “although Fontaine surmised that the issues with CTA’s prequalification suggest collusion between the Town and CTA, this charge is speculative and unsupported.”
The AG investigation noted that “the allegations of fraud, however, rest on more complex footing.” The protestors had also challenged CTA’s inclusion of experience, but not violations, under the company’s previous incarnation as CTA, Inc. (rather than the current LLC). CTA claimed that this was merely a name change and had been approved by the Division of Capital and Asset Management and Maintenance (DCAMM). Leelyn indicated that while she had concerns about DCAMM’s decision-making, the AG’s office is constrained by precedence and jurisdiction. “It remains unclear what mechanism DCAMM used to allow the Inc.’s request to change the name on its Certificate. But DCAMM’s decision is not properly before this Office, and its decision enjoys a presumption of legitimacy.” She concluded that “this Office will not disturb DCAMM’s allowance of an amendment to the Inc.’s Certificate of Eligibility, and it follows that we cannot take issue with the LLC claiming the Inc.’s history. Regardless, even if LLC is not permitted to adopt the Inc.’s experience, the Fordyce case is on point and precludes a finding of fraud here.” This refers to a case that made its way through several courts and appeals and ultimately established that “if the committee did not act corruptly, if they did not detrimentally rely on the contractor’s misrepresentations, and if the awarding authority wishes to proceed with the contractor anyway, prequalification cannot be disturbed for fraud.”
Leelyn also found that “the Town did not waive the VBE/SDVOBE goal, but instead waived the initial deadline for CTA to submit the plan, which it may do” according to settled law. While the AG’s office had cited Barber Drywall for a prevailing wage violation in September 2024, no contract had been executed yet. However, “if CTA does subcontract with Barber Drywall, it will be in violation of that Bylaw, and the Town will need to respond.”
Next Steps for Building Project
Although the denial of the bid protest was made in early December, no town announcement has been made regarding contract negotiations or execution. The School Building Committee is not scheduled before the end of the calendar year. The new school was supposed to open for the fall of 2026; it is not yet known whether the protest and investigation will affect this timeline.
Editor’s Update
At the Town Council meeting on December 16, Town Manager Paul Bockelman announced that the town is currently in negotiations with CTA Managers to get to a contract amendment. He said, “Since there’s been a delay, there’s some financial consequences and timing consequences that we’re trying to work through with the low bidder.” Elementary School Building Committee Chair Cathy Schoen (District 1) said the committee will meet the morning of Friday, December 20 at 9 a.m. on Zoom. This will be the last meeting of the committee in 2024. The next meeting will be January 25.