Understanding When Competitive Bidding Applies to Affordable Housing in Public-Private Partnerships
by Lauren D. Song and Tyler Creighton
Anyone who owns, constructs, or finances a construction project involving public funds, public ownership, and/or public use must carefully consider whether the project may be classified as “public construction.” If so, the project will be strictly regulated under an array of local, state, and federal requirements, including competitive bidding and procurement requirements, prevailing wages, bonding, and affirmative action goals. Mistakenly treating a project with a strong public-private interdependence as exempt from the public construction laws can expose the hybrid project to bid disputes, financial penalties, unenforceable contracts, and costly delays in the permitting, acquisition, funding, rehabilitation, and construction of critically needed housing. But compliance with the Massachusetts system of procurement when not required to will also constrain the construction process, significantly increase project cost and time, and result in other inefficiencies. This article reviews two bid protests recently decided by the Massachusetts Office of Attorney General (“AG”) to illustrate the challenges inherent in determining when affordable housing projects undertaken through public-private partnerships (“P3”)[i] may be “public construction” for purposes of the competitive bidding requirements under G.L. c. 149, §§ 44A–44H (“statute”).
I. Background: Public-Private Partnerships for Affordable Housing
Greater Boston perennially ranks nationally among the top-five highest average in rents and home prices. But because of the lack of funding, most low-income people in Massachusetts do not receive rental assistance, and three in ten low-income people are either homeless or must pay over half of their income in rent. The need for affordable housing preservation and production is at a crisis level in Massachusetts and nationally.[ii]
As the supply of affordable housing in the private market has lagged, public housing has been dying a slow death of divestment for decades. Established under the United States Housing Act of 1937, the public housing program produced nearly 1.4 million units nationwide, but today, only about 1 million units remain with a combined $49 billion backlog in unaddressed repairs.[iii] This backlog will continue to rise even as more federal public housing units are lost permanently with the U.S. Housing and Urban Development’s (“HUD”) effort to “reposition” the public housing inventory through public-private partnerships under the Section 18 demolition and disposition, Rental Assistance Demonstration (“RAD”), and Moving to Work programs.
The trend favors increased P3 initiatives with an expectation of greater efficiencies through risk sharing, leveraging financing from both public and private sectors, and accessing broader innovations, knowledge and skills. Already, “most HUD programs are structurally public-private partnerships (P3s) or have some public-private aspects.” Yet the legal uncertainty and fact-specific scrutiny necessary to determine when P3 arrangements are subject to the competitive bidding requirements may inadvertently chill critically-needed private investments for affordable housing in Massachusetts.
II. Massachusetts Public Construction Law
A. Massachusetts Competitive Bidding Statute
The Massachusetts public construction bidding law mandates that “[e]very contract for the construction, reconstruction, installation, demolition, maintenance or repair of any building by a public agency estimated to cost more than $150,000 … shall be awarded to the lowest responsible and eligible general bidder on the basis of competitive bids in accordance with the procedure set forth in section 44A to 44H.” G.L. c. 149, § 44A(1)(D).[iv] The dual remedial purpose of the statute is to eliminate favoritism and corruption through “an honest and open procedure for competition for public contracts,” Interstate Engineering Corp. v. Fitchburg, 367 Mass. 751, 757 (1975), and to ensure that taxpayers dollars obtain the lowest price for competent construction by qualified bidders under uniform criteria. Fordyce v. Town of Hanover, 457 Mass. 248, 259-60 (2010).
The AG is “charged with investigating allegations of violations of the competitive bidding statute and enforcing its provisions” through “bid protests.” Brasi Development Corp. v. Attorney General, 456 Mass. 684, 691 (2010) (“Brasi”). Awards of contracts can also be challenged in Superior Court where “the potential class of plaintiffs … is not necessarily limited to the low bidder on each contract” because standing is interpreted liberally in furtherance of the statute’s remedial purpose.[v] Barr Inc. v. Town of Holliston, 462 Mass. 112, 119 (2012).
The AG may enforce her bid protest decision by filing an action in the Superior Court. See G. L. c. 149, §§ 27C (a), 44H. However, the AG’s bid protest decision is accorded no deference by the courts which construe the statute de novo. Brasi, 456 Mass. at 694. Accordingly, a bid protest decision cannot settle the legal uncertainty as to whether and under what circumstances the statute applies to P3s.
B. The Brasi “Totality of Circumstances” Test
In Brasi, the Supreme Judicial Court (“SJC”) held that the competitive bidding statute applied to a “build to lease” arrangement between a private developer, Brasi Development Corporation (“BDC”), and the University of Massachusetts at Lowell (“University”). In so deciding, the SJC adopted a totality of circumstances test to conclude that the so-called “lease back” scenario[vi] in Brasi was in fact “the functional equivalent of a construction contract.” Id. at 684. The SJC reasoned that “limiting the inquiry to the [Request for Proposal (‘RFP’) as has been done in other contexts] ignores relevant circumstances that have a direct bearing on the transaction that the parties contemplated,” and that the totality of circumstances indicated the creation of a project by “an agency for the agency’s use in carrying out its public purpose” which constitutes “construction of a building by a public agency” to which the statute applies. Id. at 697-699.
Specifically, the SJC concluded that where BDC was obligated to construct a dormitory and lease it back to the University for up to 30 years subject to the University’s option to purchase and automatic transfer of ownership at the end of the lease, the “character of the agreement was, in essence, a contract for construction by a public agency… rather than a lease.” Id. at 684. The SJC admonished that “[o]therwise, the parties could easily employ long-term leases to evade the ‘competitive bidding requirement’ of the procurement statute.” Id. at 695. Brasi underscores that in evaluating whether public bidding laws apply to a P3, (1) public ownership is not necessary or dispositive and, (2) the “totality of the circumstances” of all agreements focuses on whether there is a “creation of a project by the [public] agency” that is “for the agency’s use in carrying out its public purposes.” Id. at 697.
III. Recent Attorney General Decisions on P3 Projects
A. Holyoke Housing Authority Decision: Public Housing Conversion under RAD
On June 20, 2019, the AG issued a detailed decision in In re Holyoke Housing Authority Rehabilitation of Lyman Terrace (“Holyoke Housing”) methodically applying the Brasi factors to the P3 rehabilitation of Lyman Terrace (“Project”) and found that the project constituted a public construction subject to the statute. However, the AG expressly declared that the decision in Holyoke Housing was “prospective only and, therefore, does not apply to this specific project, but will serve as guidance to other awarding authorities.” Holyoke Housing, p. 2.
This Project involved the conveyance and rehabilitation of 167-units of distressed federal public housing built in 1939 and owned by the Holyoke Housing Authority (“HHA”) to The Community Builders, Inc. (“TCB”), a private developer, as part of HUD’s RAD program under a 75-year ground lease (“Ground Lease”).[vii] Largely consistent with HHA’s RFP, the Master Development Agreement (“MDA”) required TCB to “initiate, coordinate and administer all planning, design, development, financing, construction and management activities in connection with” the Project,[viii] subject to certain rights of HHA to approve the general contractor and to review the plans, and subject to procedures for the selection of the contractor to help ensure competitive pricing, payment of prevailing wages, and compliance with other contracting standards.
To implement the Project, TCB formed a separate private limited liability company (“Owner”) to own Phase 1 of the Project pursuant to G.L. c. 121A, and HHA obtained HUD’s approval for the disposition of the public housing units under the RAD program. The Owner paid a base rent of $2,710,000 to HHA, and obtained over $35 million of financing for Phase 1 (including a $1 million loan from HHA, eight other loans from different public and private lenders, and almost $16 million of private equity contribution from the allocation of low-income housing tax credits (“LIHTC”)).[ix] TCB provided all corporate construction completion guarantees required by financing sources.
In exchange, as required for the RAD conversion, HHA entered into new Housing Assistance Payment (“HAP”) contracts with HUD to ensure the Owner would receive subsidy payments for the continued operation of the rehabilitated units under the Section 8 program. HHA and HUD also retained regulatory and enforcement rights with respect to the Section 8 HAP contracts, and HHA retained a limited right of first refusal and the option to buy back the buildings in 15 years. Other agreements obligated the Owner to “maintain the public purpose of the housing development” by operating and managing the rehabilitated units as affordable for low-income residents. Holyoke Housing, at 12.
According to the AG, the RAD Project posed the question under Brasi: “whether the public bidding laws apply when a private entity undertakes construction on a housing project that was initially owned by a public housing authority, was initiated by the public housing authority, is funded by public money, serves a governmental purpose, with control over the design and construction process retained by the public housing authority which may revert to the public housing authority if the authority pays fair market value, within a relatively short amount of time.” Holyoke Housing, p. 11. Notably, absent from the Project is the “lease back” arrangement that troubled the SJC in Brasi.[x] Rather, Holyoke Housing reveals a complex and pervasively regulated set of transactions typical of RAD conversions, which is one of the limited options available to some housing authorities to preserve distressed public housing units as affordable housing.
Nonetheless, the AG decided the Project was subject to the statute, applying the Brasi factors and following the SJC’s focus on whether the Project will “assist the public entity in ‘carrying out its public purposes.” Id. at 11-12. The AG also queried why a home-rule waiver from the statute had not been sought for the Project, as had been successfully done in other similar public housing redevelopments undertaken by TCB. See Holyoke Housing, p. 4.
B. Chestnut Park Preservation Decision: Privately-Owned, LIHTC Housing
On September 25, 2019, the AG decided In re MHFA, DHCD, and City of Springfield: Chestnut Park Apartments (“Chestnut Park”) finding that the P3 project there did not constitute public construction. Chestnut Park involved the occupied-rehabilitation of a privately-owned and privately-developed, 489-unit, LIHTC-financed, mixed-income rental housing development (“LIHTC Project”). In concluding that the LIHTC Project was not a “construction of a building by a public agency” subject to the statute, the AG recognized that there are “two separate legislative systems for creating and maintaining affordable housing…on both the state and federal levels”: a public housing system owned by public agencies that rely on grants and operating subsidies (as in Holyoke Housing), and a private affordable rental housing system developed, owned, and operated by private for-profit and non-profit entities relying on public and quasi-public loans, subsidies, and tax incentives. Chestnut Park, pp. 9-11. The AG then declared that nevertheless, even privately-owned affordable housing like the LIHTC Project is subject to the Brasi test. The AG also rejected a narrow interpretation of Brasi that the “totality of circumstances” test is “confined to cases involving leases.” Chestnut Park, p. 11. Finally, the AG distinguished Chestnut Park from the facts in Brasi and Holyoke Housing to conclude that because the public lenders, MHFA, DHCD, and the City of Springfield (collectively “Public Agencies”), “did not initiate or plan the design or construction of the Project; have never owned and will not own the Project land, buildings or improvements; do not have an absolute right to acquire the premises; and do not control the design or construction of the Project in any way other than as lenders, the public bidding laws do not apply” to the LIHTC Project. Id., p. 2 (italics added).
Applying Brasi to each indicia of public ownership, project control, use, purpose, and funding, the AG rejected the argument that Chestnut Park Apartments is a government agency-financed and controlled affordable housing facility subject to the statute, and determined that the conditions of financing in the Public Agencies’ regulatory agreements did not constitute “significant control over either the design or the construction of the Project” but were “programmatic” requirements for the operation of the LIHTC Project as affordable housing consistent with the Public Agencies’ public purpose and underwriting requirements.[xi] Id., pp. 12-15. The AG concluded that “public financing alone ‘does not render a private development … a public building or public work, or make [an owner] an agent or servant of a public instrumentality,” and noted that “[i]f that were the case, the private businesses that invest in low-income communities while benefiting from the New Markets Tax Credit Program … would become subject to laws governing public construction and prevailing wage,[xii] since they [likewise] advance the public purpose of serving low-income communities.” Chestnut Park, pp. 16-17 (quoting Salem Bldg. Supply Co. v. J.B.L. Constr. Co., 10 Mass. App. Ct. 360, 362 (1980)).
IV. More Challenges on the Horizon?
The AG’s recent bid protest decisions applying the Brasi totality of circumstances test underscore that in Massachusetts, all public and privately-owned P3 projects are well-advised to continue to consider carefully the applicability of the statute and all other public construction requirements [xiii] when one or more of the following “red flags” of potential challenge is present: (1) direct or indirect public ownership in part or all of the project, (2) public or quasi-public financing in the form of equity or debt, or assumption of risks or provision of guarantees, (3) significant public entity control over the construction, rehabilitation, or design of the project, and/or (4) construction to serve a specific public purpose or public use. By addressing the legal requirements for public construction early, P3 projects will be optimally positioned to provide badly needed affordable housing efficiently, with quality construction, within budget, and in a timely manner, and avoid costly public relations hiccups and litigation.
Lauren D. Song is a Senior Attorney at Greater Boston Legal Services where her practice focuses on affordable housing preservation and development through public-private partnerships, including under the federal “Section 18,” “RAD,” and state demonstration programs. Lauren is a current member of the Boston Bar Journal and the Citizens’ Housing and Planning Association.
Tyler Creighton is a law student at Boston University and former legal intern with Greater Boston Legal Services. Prior to law school, Tyler worked on election and voting policies with Common Cause Massachusetts and ReThink Media.
[i] The U.S. General Accounting Office defines “public-private partnerships” as joint efforts between the public and either the private for-profit or private nonprofit sectors.
[ii] All five Greater Boston counties rank nationally in the top 10 percent for income inequality. The median rent of $2,450 for a one bedroom apartment in Boston in 2019 is unaffordable for most lower-income and working-class households.
[iii] ”Public housing” refers to federal public housing in this article unless otherwise specified. Public housing is funded exclusively by Congressional appropriations. HUD administers the public housing operating and capital funds appropriated by Congress to approximately 3,300 public housing authorities (“PHAs”). However, Massachusetts (along with New York, Connecticut, and Hawaii) also has a state public housing program comprised of more than 240 local PHAs and overseen by the Massachusetts Department of Housing and Community Development (“DCHD”) which also faces a $2 billion capital funding shortfall.
[iv] In Massachusetts, “public construction” falls generally under two categories of either “vertical construction” of “public buildings” governed by G.L. c. 149, or “horizontal construction” of “public works” governed by G.L. c. 30, § 39M. Generally, the vertical projects are subject to more requirements than the horizontal projects. The AG has jurisdiction to investigate bid protests in both vertical and horizontal construction.
[v] See e.g., Andrews v. City of Springfield, 75 Mass. App. Ct. 678 (2009) (standing for group of city residents); Associated Subcontractors of Mass., Inc. v. Univ. of Mass. Bldg. Authority, 442 Mass. 159 (2004) (standing for subcontractors’ association); East Side Const. Co. v. Town of Adams, 329 Mass. 347 (1952) (standing for group of taxpayers).
[vi] Lease backs typically involve creative arrangements where a public entity leases land to a private developer (often for a de minimus amount) in exchange for the developer’s promise to build on the land and then enter into a [sub]lease-to-own agreement for the construction with the public entity. See, e.g., Andrews v. City of Springfield, 75 Mass. App. Ct. 678, 679 (2009) (invalidating lease and option to purchase because “Springfield’s request for proposal (RFP), while styled as a lease, was in reality a construction project subject to the bidding procedures set forth in c. 149” which Springfield did not follow).
[vii] RAD allows for significant PHA discretion in how the public-private interdependence is structured. At a minimum, RAD conversions of public housing to the more reliable Section 8 platform allow PHAs greater access to private financing and on better loan terms for renovations. See, e.g., Fischer, Will. 2014. “Expanding Rental Assistance Demonstration Would Help Low-Income Families, Seniors, and People with Disabilities.” Center on Budget and Policy Priorities. See also, Meryl Finkel, Ken Lam, Christopher Blaine, R.J. de la Cruz, Donna DeMarco, Melissa Vandawalker, Michelle Woodford. (Nov. 2010). Capital Needs in the Public Housing Program.
[viii] HHA separately undertook the “horizontal” improvement of the public works for Lyman Terrace through grants. HHA used a contractor selected through a competitive bid process but subsequently contracted with a TCB affiliate to complete the site improvement.
[ix] The Low-Income Housing Tax Credit (LIHTC), created by the Tax Reform Act of 1986, is now the most significant private incentive for affordable rental housing production in the United States, involving more than 3.13 million housing units placed in service between 1987 and 2017.
[x] Some have argued that the Brasi totality of circumstances test applies only in similar “build to lease” or “lease back” scenarios.
[xi] The Public Agency loans impose certain affordability, unit-mix, tenant-selection, and other use restrictions for 52 years, after which the units can be converted into market-rate housing under G.L. c. 40T, § 3.
[xii] While the AG is charged with enforcing the state’s prevailing wage statute, the Massachusetts Department of Labor Standards is tasked with issuing state prevailing wage schedules and making applicability determinations, Felix A. Marino Co. v. Comm’r of Labor and Indus., 426 Mass. 458, 460 (1998), and has adopted Brasi’s totality of the circumstances test for determining whether a project is a “public work” subject to the prevailing wage law. See e.g., Re: Construction of Leasehold Space in Private Buildings by Charter Schools for the Purpose of Use as a School, Prevailing Wage Program Opinion Letter (Feb. 22, 2012). Notably, projects that are covered by the state’s prevailing wage statute, G.L. c. 149, § 26–27 are not necessarily subject to the competitive bidding statute and vice versa. This is because, for example, there are amount thresholds in the Competitive Bidding Statute not applicable to the Prevailing Wage Statute, and whereas the bidding laws cover “buildings by a public agency,” the prevailing wage laws apply to “public works.”
[xiii] Other issues that may affect P3 projects in addition to competitive bidding requirements include whether it is federal, state or local, such as relates to: (1) prevailing wages, (2) work force policy mandates relating to DBE, WBE, LBE, etc. (3) procurement restrictions on materials and equipment, (4) bonding requirements, and (5) mechanics lien rights, and (6) even the timing of presentation of claims or commencing an action or the applicability of sovereign immunity or limits on damages.