This year, the Bid Protest Unit addressed another protest in a line of recent “bundling” protests arising from pavement management services in the town of Kingston. Pavement Maintenance Systems, Inc. (“PMS”) challenged Kinston’s latest procurement for roadway surface restoration services. In 2002, the town solicited bids for surface restoration seeking one contractor to perform three services: (1) infrared patching of utility and large pavement cuts, (2) small crack filling, and (3) “restorative sealing” of entire roadways. Subcontracting was not permitted, and the contractor had to have five years experience with all three services. Felix Marino Co., Inc. was the only contractor that could meet the experience requirements and provide all three services, and, in fact, had developed the “restorative sealing” process. PMS challenged the award to Felix Marino in 2002, arguing that the three services are unrelated and should not have been bundled. The Massachusetts Appeals Court rejected this argument in a 2004 decision. For the town’s 2006 and 2010 procurement of these same bundled services, Felix Marino remained the only bidder that could perform the three services and met the experience requirement, and was awarded those contracts.
In its 2012 protest, PMS presented unrebutted evidence that the town has never used the restorative sealing process and has used the crack-filling process only twice; that Felix Marino charges the town twice as much for the infrared patching services as it does in towns where there is competition; and that these three processes would never actually be provided at the same time. The town also failed to demonstrate that working with one contractor has actually saved it any administrative costs. Given that the town has paid Felix Marino twice as much for infrared patching as it would if it were competitively bid, and has not or has rarely used the other two services, the Attorney General determined that “administrative ease” is not a rational basis to bundle the services. Further, because only one bidder could meet the experience requirement for all three services, that requirement was overly restrictive and violated G.L. c. 30, §39M(b). The Attorney General ordered the Town to bid the third year of Felix Marino’s contract with specifications that unbundle the services.