Recently, Mike Severino secured a victory for a client in a bid protest involving the electronic receipt of a bid. With bid protests, timing is paramount. Contractors almost always need to file protests within a very short time period – often as short as five or seven days. Also, procurement agencies – either the State, a county, an individual school system, a state agency, etc. – often have their own specific procurement regulations that one must review and analyze.

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 MSBCA case further explains that the “affected competitively” analysis, which may grant a contractor standing to protest the State’s contracting decision. This is one of the tests used to determine if the contractor is an “interested party” under State regulations.

The Maryland State Board of Contract Appeals recently addressed a prospective offeror’s standing to prosecute a protest and subsequent appeal to the Board. Because the claimant never submitted a proposal for the RFP and, therefore, there was no reasonable possibility of it being awarded the contract if it prevailed on its protest, the Board ruled that it was not aggrieved under COMAR regulations and lacked standing.

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.

Maryland State Board of Contract Appeals disallows a protest filed one day after the deadline.

In any Maryland bid that contains MBE participation goals, the MBE entity must provide a “commercially useful function” within the scope of the contract. In a recent MSBCA opinion, the MSBCA sustained the procurement officer’s determination that a bid was unresponsive because the MBE subcontractor was to perform work not required by the contract and, thus, would not perform a commercially useful function.