Maryland State Bid Protests

In Maryland, a disappointed bidder generally must file a protest with the procurement officer (PO) for the agency that has denied the bidder an award or established an improper solicitation requirement.  (For federal bid protests there are often additional options.)

As with federal bid protests, tight timeframes apply.  Generally a bidder who wishes to protest must do so (a) for protests of a solicitation, prior to the bid opening or the closing date for proposals, and (b) for protests of award decisions, within seven days from the day when the basis for the protest is known or should have been known.  Protests received after the time limits are not supposed to be considered.

Generally, only an actual or prospective bidder, offeror, or contractor who is aggrieved by the agency’s relevant procurement actions may protest.  In some cases, POs may demand additional information within five days.

Once a proper protest has been filed, the Code of Maryland Regulations (COMAR) does not require a decision within a specific amount of time, but places some limits on the ability of an agency to proceed with a contract while the protest is pending.  However, COMAR indicates the Board of Public Works (BPW) may approve an agency decision to proceed with an award when BPW determines that doing so is necessary to protect substantial state interests.  Although COMAR does not provide specific instructions for awardees formally to “intervene” in PO level protests, there are some circumstances where awardees may be able to obtain at least some information about a protest and might be able to provide some meaningful input at this stage.

An appeal of a PO decision may be filed with the Maryland State Board of Contract Appeals (MSBCA) within ten days of receipt of notice of the final procurement agency action.  Appeals must include information similar to the original protest but also the grounds of the appeal and the ruling requested from the MSBCA.  Interested parties may become parties to MSBCA protests and the MSBCA may establish confidentiality orders under which counsel for the awardee and the interested party may interact with the MSBCA concerning materials that are not available for the parties.  Generally, the MSBCA will sustain procurement officer decisions unless the MSBCA finds the decision unreasonable, arbitrary, capricious, or contrary to law.  MSBCA proceedings can sometimes include documentary evidence and witness testimony.

MSBCA decisions are subject to court review (generally by Maryland’s Circuit Courts) under the contested case provisions of the Maryland Administrative Procedure Act (APA).  Maryland courts generally review legal matters relating to MSBCA decisions under a “de novo” standard of review but nevertheless apply a certain level of deference to MSBCA decisions as defined by caselaw.

For more information about Maryland bid protests, please contact us.