Attorney General Issues Bid Protest Decision on Public Construction Bidding Laws & Affordable Housing

On September 25, the Attorney General’s Office (AGO) issued a bid protest opinion, finding that public construction bidding laws do not apply to the rehabilitation of a privately-owned affordable housing development in Springfield. For a copy of the bid protest decision, click here.

The AGO denied the bid protest filed by the Foundation for Fair Contracting of Massachusetts against the Chestnut Park Apartments rehabilitation project, a privately-owned and developed 489-unit rental development financed with public resources, including LIHTC and HOME funds.

CHAPA submitted a brief on behalf of the development, arguing that public construction bidding laws should not apply. For a copy of CHAPA's brief, click here.

In Massachusetts, every contract for for the construction, maintenance, or repair of any building by a public agency costing more than $150,000 shall be subject to public construction bidding laws, M.G.L. ch. 149. The Foundation filed its bid protest arguing that Chestnut Park should have followed public construction bidding laws because the development was financed and controlled by government agencies.

The AGO rejected this argument, finding that there are two separate affordable housing delivery systems: (1) public housing, owned and maintained by public agencies (housing authorities), and (2) privately-owned affordable housing, owned and maintained by private entities using a combination of private- and public-investments.

In determining if public construction bidding laws apply to privately-owned affordable housing, the AGO applied a series of factors, known as the Brasi test. In considering these factors and looking at a totality-of-circumstances, the AGO found that the public construction bidding laws to not apply.