Massachusetts Appeals Court Clarifies Risks in Candid Bidder Evaluations
Earlier today, the Massachusetts Appeals Court issued a decision that highlights how candid feedback about a contractor’s past performance can be shared without creating liability, if done carefully and in good faith. In B.C. Construction Co., Inc. v. Johnson Roberts Associates, Inc., the Appeals Court rejected a contractor’s claims that an architect’s negative references defamed it and cost it future work. The ruling is significant for municipalities, owners, and design professionals: it confirms that honest, fact-based evaluations of bidders are legally protected. Contractors should recognize the high bar for challenging such assessments in court.
Background
This case stems from disputes on a 2013 Everett library project, where the contractor, B.C. Construction, clashed with the architect, Johnson Roberts Associates (JRA). In later years, when B.C. bid on public projects in Dracut and Cambridge, the municipalities asked JRA for input on B.C.’s past performance. JRA provided candid feedback (“[I]f they weren't the worst, they were among the [two] worst [general contractors] that we have ever worked with. As such, we really need to talk to current references to understand if they still suck.") and reference checks, which indicated that “many of [B.C.'s] recently completed projects may have required formal dispute resolution (including mediation and litigation) in order to complete the project." Both towns ultimately rejected B.C. as a bidder. B.C. sued JRA, claiming the feedback amounted to tortious interference with business relations and defamation.
The Court’s Decision
The Appeals Court affirmed summary judgment in JRA’s favor. On the interference claim, the Court explained that professionals do not act improperly when they provide truthful information or honest (“good faith”) advice in response to a request. The record showed JRA was asked for its opinion, stayed within that scope, and documented its basis. Prior disputes with B.C. were not enough to prove an improper motive.
On the defamation claim, the Court applied a qualified privilege that protects communications made in good faith where the sender and recipient share a common business interest. Because B.C. offered no evidence that JRA acted with malice or reckless disregard for the truth, its claim failed.
Practical Implications
For Owners and Municipalities
The decision confirms you can and should rely on candid professional evaluations when determining whether a bidder is “responsible.” To minimize challenges, provide the bidder with a chance to respond to negative references before making a decision.
For Architects and OPMs
The ruling reinforces that you can share candid assessments if asked, provided your comments are truthful, supported by facts, and focused on the request. Document your sources and avoid exaggeration.
For Contractors
The case underscores the difficulty of overturning unfavorable references in court. Contractors should prepare for vetting by cultivating strong recent references and addressing disputes proactively before they appear in the record.
If you have any questions about the case’s impact or need additional information regarding this decision and bidder evaluations, please let us know.