Maryland Bid Protests: Court (Again) Strictly Construes Seven-Day Deadline

Takeaway:

• Practitioners and contractors need to be aware that the State and the Maryland Board of Contract Appeals strictly construe the administrative time limits by which a bidder or offeror must protest an award.

• Typical extensions found in the Maryland Rules, which apply to litigants in state lawsuits, usually do not apply in bid protests. Contractors and their attorneys should leave nothing to chance in ensuring that they file their protests at the earliest opportunity.

A recent case from the Maryland Court of Special Appeals once again strictly construed the deadlines under which an aggrieved bidder must submit its protest to the procurement officer.

Facts

In Md. Dept. of Trans. v. Harbel, Inc., originally written about in this blog post, Harbel submitted its protest (for an approximate $4M job) to the procurement officer via email (which everyone agreed was not an acceptable means of submitting a protest) and UPS next day air on the seventh day after notice that its bid was deemed unresponsive. Under the administrative regulations governing bid protests, contractors must file the protest within seven days. After the PO received the protest on the eighth day, the State, understandably, moved for summary decision. Harbel, however, argued that the PO should have added an additional three days under a Maryland statute that excludes from the time calculation intermediate Sundays and holidays when the time period is seven days or less (as it is here).

Relevant Statute and Regulations

The statute on which Harbel relies follows:

(a) In computing a period of time described in a statute, the day of the act, event, or default after which the designated period of time begins to run may not be included.

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(c)(1) When the period of time exceeds 7 days, intermediate Sundays and legal holidays shall be counted in computing the period of time.

(2) When the period of time is 7 days or less, intermediate Sundays and legal holidays may not be counted in computing the period of time.

Md. Code Ann., GP § 1-302.

You may have noted the emphasis placed above on the words “described in a statute.” That limitation turned out to be critical because the seven-day time period is an administrative regulation, not a statute. In Maryland, these procedures are codified in the COMAR regulations:

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.”

Ruling

While the filing date would have been acceptable if the seven-day time limit was set forth in a statute, the Court had no problem strictly enforcing the regulatory seven-day time limit and upholding the Maryland State Board of Contract Appeals’ decision to dismiss the protest. The Court noted that the text of the statute did not apply to administrative regulations, but rather only to deadlines “described in a statute.” Since the regulation at issue was regulatory and not statutory, the extensions did not apply.

Notably, Judge Wilner, in a concurring opinion, points out the obvious: what if the seven-day deadline falls on a weekend or a holiday. One would not expect the procurement officer to be in his or her office to receive a protest. In such a situation, the actual deadline could be better read to mean the last day within the seven-day window on which the PO’s office is actually open to receive protests. For example, this could mean a four-day deadline if the notice were received on a Monday and the following Monday was a holiday (not that unusual).

Regardless, the law is clear when it comes to bid protests. Procurement officers and the courts strictly construe the seven-day time limit, and one should never assume it means anything but seven calendar days without interruption or extension. If this means that a contractor must hand-deliver its protest (and why wouldn’t it), then the contractor should do just that, especially for a large project potentially worth millions of dollars.