Discovery Rule Dooms Late Filed Bid Protest

Most contractors know that a bid protest must be filed either before bid opening or, depending on the circumstances, within seven days of learning of the basis for the protest. The seven-day time limit is strictly enforced and begins to run when the contractor knew or should have known of a harm.  In legal jargon, this refers to inquiry notice, which begins for deadline purposes “when a claimant is aware of facts that would cause a reasonable person to make further investigation, not when the investigation has concluded or the claimant has become convinced of the truth of the factual allegations underlying the claim.” In the strictest sense (as it must be with bid protests), the time period is retroactive to when the contractor learned of the triggering facts even if it only later learned of merits of the claim. 

In an unreported opinion by the Court of Special Appeals, the court applied this doctrine and dismissed a bid protest filed after seven days of such triggering facts. In an Invitation for Bid put out by the State Highway Administration, an addendum to the IFB contained inaccurate information concerning the timing of utility relocations. However, in investigating the utility work after learning of the timing inaccuracy, both the SHA and the contractor believed that the original utility timeline was possible.  Only after later verifying that it was not possible did the contractor protest the award. But, inquiry notice is retroactive and the seven-day period did not start when the claim was verified, but when the contractor first learned something was amiss.  The subjective beliefs of the contractor and the SHA were irrelevant. Because the contractor’s bid protest was based off the later date when it verified the inaccuracy, as opposed to the earlier date when it first learned the triggering facts, it was untimely and ultimately rejected.

References:

The case can be found here: https://mdcourts.gov/sites/default/files/unreported-opinions/1334s19.pdf

Seven-day time deadline:

COMAR 21.10.02.03B - “Protests shall be filed not later than 7 days after the basis for protest is known or should have been known, whichever is earlier.”

COMAR 21.10.02.03C - Protests that are not brought within this time period “may not be considered.”

Discovery rule and inquiry notice:

Poffenberger v. Risser, 290 Md. 631 (1981)