Construction & Public Contracts Group, Hinckley Allen, LLP
Christopher Morog Partner
Robert T. Ferguson Partner
Re-Bidding: Ambiguous Specifications and New Specifications on Re-Bid We have previously written about the limited grounds upon which a Massachusetts public awarding authority may re-bid a public infrastructure project. The three recognized bases for re-bidding are: (1) insufficient funds; (2) ambiguous specifications; and (3) new specifications on re-bid. In a prior article, we discussed the “insufficient funds” basis for re-bidding. At the end of June, 2026, the Bid Unit of the Massachusetts Office of the Attorney General (“Bid Unit”) issued a bid protest decision addressing the other two bases for re-bidding: ambiguous specifications and new specifications on re-bid.
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he bid protest arose out of a M.G.L. c. 30, § 39M project for paving of roadways and walkways at a Massachusetts community college. With respect to large public infrastructure projects, M.G.L. c. 30, § 39M requires a bid deposit. However, in its bid documents for the project, the awarding authority apparently provided conflicting information regarding the requirement of a bid bond. One section of the awarding authority’s Instructions to Bidders advised that “[a] bid [d]eposit is not required for this bid.” At the same time, another section of the same document “instructed bidders to provide a five percent bid deposit” with their bid. The awarding authority also included a bid bond form for bidders “to complete as a required document.” The awarding authority received 10 bids, but the apparent low bidder did not include a bid deposit with its bid. Upon review, the awarding authority determined that its bid documents were “materially ambiguous” and elected to re-bid the project. On re-bid, the awarding authority also updated its specifications to include additional details for thermoplastic painting of pavement markings and included an “entirely new” section for “Planting.” The specifications on re-bid also incorporated certain items that the awarding authority had previously clarified in addenda issued
JULY, 2026
in connection with the original procurement (relating to asphalt walkway quantities, number of speed bumps, and roadway asphalt thickness). In these circumstances, the second-low bidder filed a protest with the Bid Unit alleging that the re-bid was “improper.” The second-low bidder: (1) challenged the awarding authority’s determination that the original specifications were ambiguous with respect to the bid deposit requirement; and (2) argued that the “new specifications were not materially different from the initial ones, and thus do not justify the rebid.” After holding a hearing, the Bid continued on page 27
“BUY FROM THE ADVERTISERS IN CONSTRUCTION OUTLOOK”
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