AG Declines to Enforce its Prohibition Against Contract Signing for Library Project

Despite the warning the Attorney General (AG) gave to the Town of Amherst to not sign or execute a contract while they investigated a recent bid protest, the AG Bid Unit has declined to take action after the Town Manager signed a construction contract with Fontaine Bros. for the library building project before the protest was concluded.

After receiving a bid protest on April 15, the Attorney General’s (AG) Office sent an email instructing the town not to sign or execute any contracts while they conducted their investigation. In its letter, the AG cited case law that “holding contracts entered into in violation of statutory bidding requirements are void as a matter of law.”

The town requested and received an expedited assessment of the bid protest that was concluded without a hearing on April 24, 2025. However, the Town Manager signed a construction contract with Fontaine Bros. on April 18, 2025, seemingly in violation of the AG’s directions. (See here)

AG Says They Can’t Do Anything About Town Acting Against Their Directives
When it was informed about the violation on April 30, 2025, the AG responded that “this office did not seek a preliminary injunction in Superior Court pursuant to G.L. c. 149, § 44H to “restrain the award of the contract”, a requirement that was not noted in their previous communications. It also described its admonition against entering contracts during the investigation as “advisory only” and stated that it has not been granted authority to declare any public construction contract void: “Such declaration may only come from a court of competent jurisdiction.”

According to the General Guidelines regarding Attorney General Bid Protest Cases, the AG’s Bid Unit does have the jurisdiction to enforce public bidding laws. However, a mandatory order can only be issued by a court. A civil action, such as a preliminary injunction or declaratory judgment, in Superior Court would be required to prevent an awarding authority (such as the town) from awarding a contract. This distinction was not included in the AG’s email acknowledging receipt of the bid protest.

Town Withheld Information from AG
The Town’s response to the bid protest was received on April 17, 2025 and the AG responded to it on April 18, 2025: “It is this Office’s strong preference that the parties furnish us with all relevant documents/written argument prior to determining whether a matter moves to a hearing.” Both the protester and the town were instructed to submit any written material no later than Tuesday, April 22, 2025. 

The protester provided the requested material in that time frame. The town submitted nothing further, withholding the material information that it had executed the contract on the same day as the AG’s request. This failure to notify both the protester and the AG that it had signed a contract on April 18, 2025, contrary to the AG’s instructions, deprived both parties of critical information that may have caused either to pursue judicial action had they been aware of it. Instead, the Town Manager only revealed the existence of the contract 10 days later at an evening Town Council meeting on April 28, 2025. 

Protest Denied, but Not Deceased
With the AG declining to take action against the Town’s premature actions, the matter of the protest has concluded for the time being. In its decision, the AG found that the concerns expressed about a future violation of bidding laws were fair, but “unripe”. In denying the protest without prejudice, the protest can be renewed if additional evidence arises.