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.

A recent case before the Maryland State Board of Contract Appeals yet again illustrates the importance of understanding contractual limitations and waivers. In that case, the state contract contained a “no damages for delay” clause, which barred an approximate $1,000,000 delay claim.

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.

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

In Red Coats Inc., the Maryland State Board of Contract Appeals addressed whether a change in state law that caused increased operating costs constitutes a change in the scope of work sufficient to warrant an equitable adjustment. The Board determined that because the work required under the IFB and contract did not change, the contractor was not entitled to an equitable adjustment. 

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.