AG Acknowledges “Fair Concerns” but Denies Bid Protest of Jones Library Building Project for Now
Photo: maine.gov
Justin Polk, Massachusetts Assistant Attorney General Hearing Officer for the Bid Unit, issued a decision on April 24, 2025 denying a bid protest regarding the Jones Library building project, but leaving the door open to future action.
A bid protest was filed on April 15, 2025 by Amherst resident Joe Cook, alleging that the Town of Amherst violated Massachusetts Public Construction Bid Law by planning “to change the scope of the construction contract via change orders for additional work that was known to the Town before execution of the contract.”
That same day, Attorney Polk wrote, “As this matter is now under investigation by this Office, the Town of Amherst should not award this contract or execute this contract if it has been awarded” and invited the town to offer a response to the protest.
Amherst’s town attorney, Richard Holland of KP Law, submitted a letter on April 17, 2025 stating that “the Town has fully complied with all procurement laws” and requesting that the protest be dismissed without a hearing because of a April 25, 2025 deadline by the Massachusetts Board of Library Commissioners (MBLC) for a grant, stating that “the Town must enter into a contract with Fontaine immediately.” [Note: the MBLC deadline is April 30, 2025 as established by an extension request made in March 2025.]
Also notable is that KP Law stated in its response, “On April 4, 2025, following execution of the MOA, the Town awarded the general contract to Fontaine.” This information was not shared with the Town Council or the public at that time and pre-dated the calling of an April 14, 2025 Special Meeting of the Town Council to vote on rescinding the borrowing authorization for the project (see coverage of that meeting here). When Town Manager Paul Bockelman spoke at that meeting, he did not mention that the general contract had already been awarded 10 days earlier.
On April 22, 2025, Cook offered a response reiterating his protest and challenging KP Law’s arguments.
The AG’s office found that a hearing was not necessary and rendered its decision on April 24, 2025.
This Office finds that, at present, evidence of a past or existing violation of the public bidding laws has not been presented. We therefore DENY the protest, but without prejudice to renewal if an actual violation develops.
The AG’s decision addressed four aspects of the bid protest as follows:
Allegation 1: “The Town improperly waited to conduct the environmental review, despite HUD’s recommendation to undertake that study before issuing the bid documents”
Finding: “This Office does not play any role in enforcing any environmental laws relating to the Project, or the order in which an awarding authority complies with those rules. See G.L. .c 149, § 44H. Although the Town might have avoided some issues by conducting that environmental study sooner, not doing so is not a violation of the laws the Attorney General’s Bid Unit enforces.”
Allegation 2: “The Town is improperly negotiating with the low bidder (Fontaine) to change the scope of the contemplated contract”
Finding:”The Protestor has not furnished any evidence of post-bid, pre-construction negotiations between the Town and Fontaine.” and “Instead, the only known negotiations have occurred between the Town and MHC, which resulted in the MOA signed by those parties (not Fontaine) on March 25, 2025. Negotiations with such third parties are distinct from negotiations with a bidder, the latter of which our public bidding laws directly address.”
Allegation 3: “Those anticipated changes are significant enough that rebid is required”
Finding: “The Protestor has not provided sufficient evidence that the contemplated (non roofing) changes are of such a nature that rebid is required. Although the award was made to Fontaine on April 4, 2025, no contract has yet been executed, so we necessarily cannot fully compare the ultimate contract with what was evident from the specifications. Based on the submissions, however, it appears that the (non-roofing) changes, which primarily involve preserving mahogany in certain places in the library, represent just 0.5% of the value of this $36,000,000 project. Without more, we cannot find that the Protestor made an initial showing that a violation may have occurred.”
Allegation 4: “The Town will improperly use change orders to address the additional (non-roofing) work addressed in the MOA between the Town and the Massachusetts Historical Commission (MHC).”
Finding: ”The Protestor might well be correct that one or more change orders may be executed in the future, but there is no evidence that any change orders have yet been signed. We cannot now rule on a future event that may or may not constitute a violation of the bidding laws.”
The AG concluded that:
“In sum, while the Protestor may certainly have fair concerns that a violation will occur in the future, no such showing has yet been made, leaving this matter unripe for our review. Therefore, the protest is DENIED without a hearing, but also without prejudice to the Protestor renewing the protest if the current concern about a future violation comes to fruition.”
The decision by the AG clears the way for Amherst Town Manager Paul Bockelman to execute a construction contract with Fontaine Bros with respect to the bid protest. However, the public comment period for the Environmental Review required for a provisional HUD grant remains open until April 28, 2025, and signing a contract prior to the resolution of that process puts federal funding at risk
There’s been a remarkable amount of outrage in the past few days about a letter that was twisted by another local publication and misunderstood and mischaracterized by many people — dare I say “good people… on both sides”? — in this publication (and almost surely in still other local publications).
But to my surprise, a comment that I thought I’d posted soon after the above news item, has yet to appear (perhaps it’s lost in an Akismet wormhole created by the gravity of my comment?) in this publication, and since I can’t seem to find it in my browser histories, I’m pretty sure this further evidence for quantum gravity, the space-time version of extended states, or as Einstein once said “spooky action at a distance”!
So let me stop mincing words (into more and more words) and try to reconstruct the essence of that lost comment:
How could 250-300 members of the public have been led to engage in a public meeting, less than two weeks ago, to debate an issue before the legislative body of this community, and then watch that body vote (presumably based on that debate) just as they always have, in spite of new evidence presented?
Well, it seems there was actually nothing to debate: the decision had already been made by the unelected executive of this community 10 days earlier! How many people in that room — the real room in Town Hall, and the virtual room on Zoom — knew that “the fix was in”?
This certainly isn’t “Transparency to the Max” — could it be an open meeting law violation?!