This is the part of a series discussing state-level bid protests in the DMV. Click here to read about the process in D.C. and click here to read about the process in Virginia.
Protest procedures in Maryland are less centralized than D.C. but more centralized than Virginia.
Generally Relevant Law
The majority of relevant authorities in Maryland are found in Division II of the State Finance and Procurement Article in the Maryland Code (SF&P) and Title 21 of the Maryland Code of Regulations (COMAR).
Authority to Issue Solicitations and Make Awards
Generally, the Board of Public Works (BPW), through the Maryland Office of State Procurement (OSP), governs and conducts Maryland procurements. The BPW consists of the Governor, State Comptroller and State Treasurer, all supported by a procurement advisor and staff. The OSP is the primary procurement unit for all delegated procurements, except for transportation, transportation-related and otherwise exempt procurements. Importantly, governmental entities outside of Maryland’s executive branch do not fall under BPW’s jurisdiction.
BPW’s procurement authority is delegated to four agencies designated as procurement units: the Department of General Services (DGS); the Department of Transportation (DOT), which includes the Maryland Transportation Authority; the Maryland Treasurer; and (4) the Maryland Port Commission (MPC).
- The DGS is the procurement body for the following types of procurements: capital construction improvements contracts; capital construction-related services; architectural and engineering contracts; maintenance contracts; professional services; and purchases, leases, and rentals of motor vehicles for state officials and employees, among several others.
- The DOT is responsible for transportation-related construction, capital construction, architectural and engineering, maintenance, and equipment contracts; supplies and services for aeronautics-related activities; and capital expenditure contracts in connection with state roads, bridges, or highways.
- The Treasurer overseas banking, investment, and other financial services contracts, as well as insurance and insurance-related services contracts.
- The MPC handles port facility-related construction, construction-related services, architectural and engineering, maintenance, equipment, services (including information technology services), commodities and supplies, and leases of real property.
Three additional Maryland entities are considered primary procurement units, not governed by SF&P and COMAR Title 21: Morgan State University; St. Mary’s College of Maryland; and the University System of Maryland. These seven units are also called “control authorities,” meaning they can conduct procurements on behalf of other agencies or re-delegate their authority to other agencies.
Some executive branch agencies are exempt from BPW’s jurisdiction, and certain independent agencies are, to some degree, exempt from Maryland General Procurement Law more generally. For example, the University System of Maryland, Morgan State University, and St. Mary’s College of Maryland follow their own procurement policies and procedures, and the Maryland Stadium Authority is an independent unit in the executive branch that is generally exempt from Maryland state procurement law. These agencies are subject to BPW’s authority and oversight for other reasons (e.g., each is subject to BPW’s authority for the Small Business Reserve Program).
In addressing delegated purchasing authority, BPW approval is not required for procurements up to $50,000, emergency procurements, sole source procurements of $100,000 or less, and most other procurements valued at $200,000 or less, except for single bids or proposals that exceed $50,000 in competitive procurements. Accordingly, any multi-year contract with an aggregate value of $200,000 or greater or any contract valued at greater than $200,000 must be approved by the BPW. Solicitations, regardless of size, are typically posted on the eMaryland Marketplace (also known as eMMA).
The person with authority to manage contracts on behalf of the procuring authority is called the procurement officer. The procurement officer, or their authorized representative, has the authority to enter and administer contracts and to make written determinations and findings regarding the contracts.
Initial Protest Forum
Typically, the procuring agency is the initial protest forum for Maryland procurements. An interested party may protest the award or proposed award of a contract to the procurement officer of the agency conducting the procurement. As discussed in more detail below, the protest must be written and addressed to the procurement officer.
Time to Protest
Generally, a protest based upon apparent issues with a solicitation must be filed with the agency’s procurement officer before bid opening or the deadline for proposal submission. Other protests – the protest of a contract award, for example – must be filed no later than seven calendar days after the basis for protest is known or should have been known, whichever is earlier. Exempted and independent agencies may have different timeliness rules for their protest processes.
Because protests must be filed timely or risk dismissal, contractors should contact experienced counsel as soon as possible to discuss possible protest routes.
Access to Information
At the agency level, a protester may have limited access to information and may need to make a separate Maryland Public Information Act (MPIA) request to obtain more information. Under the MPIA, there is a general presumption of public release, which includes the release of protest materials. Therefore, the protester should be mindful in marking its protest submission and related documents as confidential to reduce the risk of public disclosure. This is particularly important considering Maryland regulations allow for any interested party to request information submitted by the protester that bears any substance to the protest, unless it is marked as confidential.
Conversely, when a protester files an appeal to the Maryland State Board of Contract Appeals (MSBCA), the protester has broader access to information. The procuring agency must submit an agency report containing details about the procurement, including the solicitation and proposals, and, if necessary, discovery, subpoenas, and evidentiary hearings are available as information-gathering tools. An appeal before the MSBCA contains a protective order process to facilitate information sharing, meaning public disclosure of appeal documents is less likely than in the initial protest filing (as an example, see Free State Reporting, Inc., MSBCA No. 2143, at 13 (1999) (protective order used in a protest appeal)).
If a protester files a protest with an exempted or independent agency, the access to information, including whether the agency is required to file some kind of agency report, generally depends on the agency’s individual rules, especially if the MSBCA does not have appeal jurisdiction. This means a protester may need to file an MPIA request to obtain information in this type of protest as well.
Stay of Performance
Following a timely agency level protest of an awarded contract under the BPW’s authority (or the delegated or re-delegated authority of the BPW), the awarded contract cannot be executed. However, the agency may override this stay, determining that execution of the contract is necessary to protect substantial state interests. Absent a stay override, the stay remains in place until the protest process is finished, including the completion of a related appeal.
If the protest is before an exempted or independent agency and the agency’s rules do not provide for a stay, the protester may need to seek a preliminary injunction in the appropriate circuit court to obtain a stay (as an example, see Priester v. Baltimore Cnty., 232 Md. App. 178, 195 (Md. Ct. Spec. App. 2017) (“[A] petitioner cannot seek judicial review of an interlocutory decision by that agency unless an interlocutory appeal is authorized by statute.”)).
Protest Procedure – Agency Protest and Appeal to MSBCA
Upon receipt of an initial protest, the procurement officer is required to immediately notify the Office of the Attorney General. Thereafter, the procurement officer may request additional information from the protester to support the protest. The procurement officer is required to issue a written decision “as expeditiously as possible after receiving all relevant, requested information.” COMAR 21.10.02.09. Before the procurement officer’s decision can be issued, the agency’s reviewing authority and appropriate legal counsel must review the decision. The reviewing authority can approve, modify, or disapprove the procurement officer’s decision. If the agency denies the protest, the agency’s decision is considered its final action. However, the denial may be appealed to the MSBCA.
The protester must file an appeal with the MSBCA within 10 calendar days of receipt of notice of the procuring agency’s final action (i.e., the denial). Importantly, an appeal received after the 10-day deadline will not be considered unless it was sent by registered or certified mail no later than the fifth day “before the final date for filing an appeal.” COMAR 21.10.02.10. This means that, for example, if the protester receives notice of an unfavorable agency decision on August 4, the appeal must be filed by Aug. 14. However, if the MSBCA receives the appeal after Aug. 14, it will only consider the appeal if it was sent by registered or certified mail on or before Aug. 9.
On appeal at the MSCBA, the Office of Attorney General, in conjunction with the procuring agency, must provide an agency report within 15 working days. The protester and any intervenors then have 10 working days after receipt of the agency report to file comments on the report. Any rebuttals to the filed comments by the parties, including by the agency, must be filed within five working days after the comments are filed.
As mentioned above, the MSBCA may permit discovery to gather additional facts; this discovery is generally limited to requests for production of documents absent extraordinary circumstances. The MSBCA may hold a hearing on the appeal, if requested or ordered by the Appeals Board. Upon reviewing the written record, hearing testimony, documents and other evidence admitted during the hearing, and any additional information requested by the Appeals Board, the MSBCA must decide on the appeal “expeditiously.” Md. Code, State Fin. & Proc. § 15-221(a)(2).
Available Remedies
At the agency level, the procurement officer may grant whatever relief is within their legal authority, including, but not limited to: terminating the awarded contract for convenience; re-competing the contract; issuing a new or amended solicitation; or not exercising a contract option. If the protest is sustained, the protester may also attempt to recover its protest costs.
If the protester proceeds to the MSBCA, the Appeals Board may provide declaratory relief by recommending that the procuring agency undertake specific corrective action, including possibly recommending that the procuring agency make award to a particular bidder or offeror.
Appeal from MSBCA to Court
Similar to other administrative agency decisions in Maryland, an MSBCA protest decision is subject to judicial review and is reviewable in the appropriate circuit court based on Maryland Procedural rules. When it comes to an exempted or independent agency, the process may be different, and there may be jurisdictional issues regarding an appeal of the final decision of one of these agencies.
Because the protest and related appeals procedures can be intricate and contractors can risk dismissal if not properly followed, contractors should contact experienced counsel as soon as possible to discuss their options.
Opinions and conclusions in this post are solely those of the authors unless otherwise indicated. The information contained in this blog is general in nature and is not offered and cannot be considered as legal advice for any particular situation. The authors have provided the links referenced above for information purposes only and by doing so, do not adopt or incorporate the contents. Any federal tax advice provided in this communication is not intended or written by the authors to be used, and cannot be used by the recipient, for the purpose of avoiding penalties which may be imposed on the recipient by the IRS. Please contact the authors if you would like to receive written advice in a format which complies with IRS rules and may be relied upon to avoid penalties.
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