September Opinions from Maryland State Board of Contract Appeals

The Maryland State Board of Contract Appeals issued two new opinions in September.  These opinions, while not groundbreaking in their scope, do address procedural nuances of which practitioners should be aware.

The first is In the Appeal of Harbel, Inc., docket number 3135, which can be found here. Harbel concerned a possibly late-filed bid protest.  The State argued that Harbel filed its bid protest one day late, based in part on an email and letter Harbel sent to the State advising it that Harbel intended to file a bid protest and acknowledging that the protest was due on or before August 1, 2019.  Not surprisingly, Harbel’s protest was received on August 2, 2019, which led to the State denying the protest as untimely.

Harbel appealed, and the State filed a motion to dismiss.  The State did not file a motion for summary decision.  The Board denied the motion to dismiss and ruled that the timely filing of a protest is not a condition precedent to the existence of a claim or the Board’s jurisdiction.  Drawing on Maryland caselaw examining statutes of limitation, the Board explained that timeliness issues are usually factual in nature and rise and fall on when the contractor knew, or should have known, of the basis for the protest. Like statutes of limitation, timeliness issues are also impacted by estoppel and waiver. Accordingly, the issue is not proper at the motion to dismiss stage.

While Harbel prevailed in this instance, it is likely that the State will simply file at some point in the future a motion for summary decision and argue that there are no genuine disputes of material facts.

The second opinion is In the Appeal of Allan Myers MD, Inc., docket number 3119, which can be found here.   In Myers, the Board issued a final decision on September 12, 2019, which Myers sought to vacate.  The Board noted that it does not have authority to vacate a decision, but can only reconsider a decision based on fraud, surprise, mistake or inadvertence. 

Treating the motion as one for reconsideration, the Board found no error in the September 12th Order.  In that Order, the Board had ruled that (a) Myer’s change order in the amount of $2,506,791.18 was not a proper claim pursuant to Maryland regulations, (b) Myers never presented a claim, and (c) there was never a final action by the agency.  Accordingly, the Board lacked jurisdiction to hear and decide Myer’s appeal (contrast to Harbel, where timeliness was not jurisdictional).

As a reminder, COMAR 21.10.04.02 addresses notice of claims and what must be included in the claims themselves:

(1) An explanation of the claim, including reference to all contract provisions upon which it is based;

(2) The amount of the claim;

(3) The facts upon which the claim is based;

(4) All pertinent data and correspondence that the contractor relies upon to substantiate the claim; and

(5) A certification by a senior official, officer, or general partner of the contractor or the subcontractor, as applicable, that, to the best of the person's knowledge and belief, the claim is made in good faith, supporting data are accurate and complete, and the amount requested accurately reflects the contract adjustment for which the person believes the procurement agency is liable.

COMAR 21.10.04.02.  As always, be aware of the time limits set forth in the regulation.