AG rejects protest over low bidder for Amherst school project

Architect rendering of the front entrance to the proposed new elementary school building in Amherst.

Architect rendering of the front entrance to the proposed new elementary school building in Amherst. DiNiSco Design

By SCOTT MERZBACH

Staff Writer

Published: 12-12-2024 3:09 PM

AMHERST — The state attorney general’s Fair Labor Division is rejecting protests seeking to disqualify the low bidder from handling the construction of Amherst’s $97.5 million elementary school.

In a decision issued Dec. 4, the state office rejected the contention from the North Atlantic States Regional Council of Carpenters, the Foundation for Fair Contracting of Massachusetts and Fontaine Brothers Inc., of Springfield, challenging the town’s decisions to prequalify and then award the general contract to CTA Construction Managers, LLC.

CTA’s $73.48 million bid was lowest of three bids received, and $4.8 million below the funding ceiling agreement between the town and the state. But because of the bid dispute, there has been a potential delay on the work on the new school that is supposed to open on South East Street, next to Fort River School, in the fall of 2026.

School Building Committee Chairwoman Cathy Schoen, who also serves on the Town Council, said the decision allows Town Manager Paul Bockelman to send a contract to CTA. Since the bid appeal, and bid dispute hearing held in late October, the town has awarded the contract to CTA, but held off on signing or executing it.

Bockelman said the town expects that CTA will review and sign the contract as soon as possible.

The project includes a 105,750-square-foot, net-zero emissions building with space for 565 K-5 students. Designed by DiNisco Design of Boston, the building will be powered by ground-source heat pumps and photovoltaic panels. When complete, both 1970s-era elementary schools, Wildwood and Fort River, will close with the Fort River school to be demolished and that space to become playing fields for the new school. In addition, sixth graders at those schools, as well as Crocker Farm, are supposed to move to a new 6th Grade Academy, potentially to be housed at the Amherst Regional Middle School.

A main contention in the bid dispute was that CTA violated the town’s responsible employer bylaw. The 17-page decision, signed by Shannan Leelyn, assistant attorney general and the office’s bid unit hearing office, rejected that.

“Because the town’s prequalification of CTA has not been shown to be arbitrary or capricious, or to rest on collusion or fraud, the protests of CTA’s prequalification must be denied.”

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Some of the dispute centered on whether CTA would use subcontractor Barber Drywall of Wareham, which is alleged to have payroll violations and judgments against it. By carrying an ineligible subcontractor, that violates Amherst’s responsible employer bylaw, meant to ensure Amherst awards contracts for goods and services and public construction, and grants tax relief agreements, only to responsible contractors able to certify they are in compliance with wage and hour laws. The bylaw is enforced through the written contracts when bids are awarded.

“As noted above, CTA timely certified on Sept. 19, 2024, that it would comply with Bylaw 3.55, including not subcontracting with anyone found by a government agency to have violated wage/prevailing wage laws during the past five years,” the attorney general’s office wrote.

The state office also turned down an argument by Fontaine that the second lowest bidder, J&J Contractors Inc. of North Billerica, would be ineligible for a contingent award, should CTA be disqualified.

An aspect of the dispute began Sept. 27 when J&J wrote to the town and complained that CTA’s bid didn’t meet a 3% goal for using a Veteran Business Enterprise or a Service Disable Veteran Business Enterprise. CTA brought its bid into compliance in early October, allowing the town to notify CTA that it was the lowest responsible and eligible bidder.

The state office also wasn’t swayed by arguments made by the town and CTA that the protests should be denied as untimely, coming five months after the state of qualifications were submitted in mid-April, and just over four months after prequalification decisions were made in late May.

“The delay between prequalification and protest was about four months, and the delay between bid opening and protest was just three weeks,” Leelyn wrote. “While I agree that the four-month delay is significant in the context of the instant project, the town has not proved it was prejudiced.”

“The protest delayed contract execution, which in turn delayed commencement, but that occurs with nearly every protest.”

Scott Merzbach can be reached at smerzbach@gazettenet.com.