Bill filed to broaden definition of fraud in Massachusetts public-construction bids

A bill filed with the Massachusetts Senate on Jan. 8, 2025, would broaden the legal definition of “fraud” in public construction procurement, require new bidder certifications and change prequalification and bid-deposit language, according to Senate No. 2180, presented by Michael O. Moore.

The bill, titled "An Act relative to the definition of fraud in public construction bid laws," would amend multiple provisions of the Massachusetts General Laws, including subsection (a) of section 39M of chapter 30, section 44A of chapter 149, and provisions of chapter 149A. It was filed with Senate docket No. 124 as Senate No. 2180 and listed for State Administration and Regulatory Oversight.

Under the draft text, the certification that accompanies a public-construction bid would be revised from a statement that a bid is “bona fide, fair and made without collusion or fraud” to language that requires bidders to certify the bid “contains no intentional misrepresentations, omissions or false statements” in addition to stating it was made without collusion. The bill repeats a substantially identical certification for responses to requests for proposals under chapter 149A.

The proposal adds a statutory definition of “fraud” in chapter 149 and chapter 149A. The draft defines “fraud” as “a statement, act or omission relating to a material fact that (i) has the natural tendency to be relied upon by or to influence the average person, (ii) is knowingly false or misleading or is in reckless disregard of its truth or falsity and (iii) is intended to mislead, regardless of whether the statement, act or omission is actually relied upon.”

The bill would also revise the definition of “responsible” in section 44A of chapter 149 to require a determination of “competent workmanship and financial soundness” under section 44D and to require a certification that the bid contains “no misrepresentations, omissions, or false statements.”

In chapter 149A the bill would change the grounds on which a prequalification committee’s decision may be appealed: under the draft the decision would be final and not subject to appeal except on grounds that a submission contains intentional, material misrepresentations, omissions, false statements, or collusion. The bill also specifies that bid deposits under chapter 149A must equal 5 percent of the value of the bid and repeats the expanded bidder certification in that section.

The bill text sets out precise replacement language for the affected sections; it does not specify an effective date beyond being enacted by the General Court. The filing lists multiple petitioners and the chamber committee assignment but does not record any votes or legislative action beyond filing.

If enacted, the changes would alter how awarding authorities evaluate bidder responsibility and would add an explicit three-part legal test for fraud in the procurement context; the bill text itself supplies that test and the new certification language. The legislative process (committee hearings, votes, or enactment) and the timeline for any implementation are not specified in the filing.

Details from the filing that may matter to bidders and awarding authorities include the 5 percent bid-deposit requirement for chapter 149A procurements and the repeated, explicit requirement in multiple statutory locations that bids contain no intentional misrepresentations, omissions or false statements. The bill as filed does not specify penalties or enforcement procedures beyond the statutory language and appeal-limited prequalification decisions noted above.