Massachusetts Performance BondTwo Different Rulebooks, One Bond Question

Probably not a statutory one, and that surprises most contractors used to the "always required" assumption. Massachusetts runs two separate bonding regimes. Vertical building work over $150,000 falls under M.G.L. c.149 §§44A–44H, and §44E requires BOTH a performance bond and a payment bond, each at 100% of the contract price. Horizontal public works — roads, water/sewer lines, bridges, site utility work — falls under M.G.L. c.30 §39M instead, and §39M only cross-references the payment bond required by c.149 §29. There is no statutory requirement for a performance bond on a horizontal public works contract. That said, most awarding authorities (MassDOT, a DPW, a water district) write a performance bond requirement into the contract documents anyway as a condition of award, even though the legislature never mandated it for this contract type. Read your bid documents — if the performance bond is there, it is contractual, not statutory, but it is just as enforceable.

A filed sub-bid is Massachusetts’s unique two-tier bidding mechanism under c.149 §44F, used only on the vertical building track. On a project over $150,000, certain trades — masonry, roofing and flashing, metal windows, waterproofing/damp-proofing/caulking, lathing and plastering, acoustical tile, resilient floors, painting, electrical, plumbing, HVAC, elevators, and fire protection sprinkler systems — must file their sub-bid directly with the awarding authority before the general bid deadline, each backed by its own 5% bid deposit. The general contractor then has to select its subcontractor for that trade from the pool of filed sub-bidders; a GC cannot bring in an unlisted sub for a designated trade after award without the awarding authority’s consent. If your trade is on the designated list and the job is a public building over $150,000, yes — you file directly, not through the general contractor.

No, and this is exactly where contractors get tripped up. The entire c.149 §§44A–44H apparatus — competitive bidding, DCAMM certification, filed sub-bids, the 100% performance and payment bonds under §44E — only activates once the awarding authority’s cost estimate exceeds $150,000. A $120,000 roof job falls under the small-project procedures instead (typically informal quotes per the awarding authority’s own procurement rules, not full c.149 bidding). You may still see a bond required by contract, and the payment bond trigger under §29 sits much lower at $25,000, so a $120,000 contract does exceed that threshold if the awarding authority chooses to require it. Confirm with the specific bid documents rather than assuming the $150,000 building-construction threshold applies automatically.

Before you bid. The Division of Capital Asset Management and Maintenance issues a Certificate of Eligibility to general contractors (minimum project threshold $150,000) and separately to sub-bidders (minimum project threshold $20,000) under 810 CMR 4.00, and an awarding authority cannot even open your bid envelope for a public building project above these thresholds unless you hold current certification in the applicable category of work at the time bids are submitted. This trips up contractors who assume certification is something you sort out after winning — DCAMM certification is a bid eligibility gate, not a post-award condition. Apply well before your first $150,000-plus building bid; processing is not instant.

That deadline comes directly from M.G.L. c.149 §29, the statute governing the payment/labor-and-materials bond on Massachusetts public construction contracts over $25,000. A subcontractor or supplier with an unpaid claim for labor, materials, equipment rental, transportation, or certain fringe benefit contributions must give notice of the claim within 65 days after the claimant’s last labor or delivery on the project. Miss that window and the claim against the bond can be barred regardless of whether the money is actually owed. This is tighter than many states’ 90-day windows, so track your last date of work on any Massachusetts public job closely if you expect payment disputes.

Yes, but the source of that requirement is different than most contractors assume. A water main is horizontal public works, so it never falls under c.149 §§44A–44H (that track is buildings only). Instead it sits under c.30 §39M, which applies once the awarding authority’s estimate exceeds $50,000 — a $60,000 project clears that. Under §39M, competitive bidding rules and a 5% bid deposit apply, and the awarded contractor must furnish the payment bond required by c.149 §29 within 10 days of notification of award (§29 itself applies over $25,000, so $60,000 clears both thresholds). A performance bond specifically is not mandated by either statute at this contract size — if the town is asking for one, it is because the contract documents require it, not because the law does.