Topic #1:  Maryland State Board of Contract Appeals

What is the Maryland State Board of Contract Appeals (MSBCA)?

The Board is an independent unit of the Executive Branch of the State of Maryland that has jurisdiction over most appeals involving bid protests and contract disputes between the State and contractors doing business with the State. The Board consists of six members appointed by the Governor to staggered five year terms. An appeal before the Board shall be heard by a panel of not more than 3 members designated by the Chairman. 

Where does the Board of Contract Appeals conduct its hearings?

The Board of Contract Appeals is located at the William Donald Schaefer Tower, 6 St. Paul Street, Suite 601 Baltimore, Maryland 21202.  The hearings take place at that location.  

Are Board of Contract Appeals decisions subject to judicial review?

Yes, like other final administrative agency decisions, final decisions of the Board of Contract Appeals are subject to judicial review by the Circuit Court.  Board decisions are reviewed on the record.  

Do I need a lawyer to appear before the Board of Contract Appeals?

Under COMAR 21.10.05.03, corporations, partnerships, and joint ventures are required to be represented by an attorney.  Individuals may represent themselves before the Board.  In most cases, however, appearing pro se would be ill advised.      

Are Board of Contract Appeals decisions used as precedent?

Yes. Final decisions of the Board are used as precedent by State agencies and the contracting community.

Are all the Board’s decisions posted on the Board’s website?

Most final decisions of the Board are posted on the website and are searchable. Published opinions of the Board are also available at the Board’s office.

The Board will sometimes issue bench decisions on dispositive motions.  Some of these bench decisions are unpublished.  However, because board proceedings are recorded, transcripts of its bench decisions can be ordered.

Topic #2: Bid Protests

What is a bid protest?

A bid protest is a complaint related to the formation of a procurement contract.  Bid protests involve the preparation and interpretation of bid specifications, qualification and selection of successful bidders or offerors, and matters relating to the procurement process.   

Who can file a Protest?

An “interested party” may file a protest.  The procurement regulations define an “interested party” as “an actual or prospective bidder, offeror, or contractor that may be aggrieved by the solicitation or award of a contract, or by a protest.”

Must a protest be in writing?

Yes, the protest must be in writing and addressed to the procurement officer.  See COMAR 21.10.02.02B

May a protest be filed electronically?

A protest may be filed in writing and delivered by hand, electronic means, the U.S. Postal Service, or a courier service.  COMAR 21.10.02.02C

When must a Protest be filed?

It depends on the type of protest.  If the protest is based on an alleged “impropriety” in the solicitation that is apparent before bid opening or the closing date for receipt of proposals, then the protest must be filed before bid opening or the closing date for receipt of initial proposals.  All other types of protest shall be filed not later than 7 days after the basis for protest is known or should have been known, whichever is earlier.

The MSBCA strictly enforces these restrictions.  A failure to file a timely protest can be a fatal blow to a contractor.  The Assistant Attorneys General who represent state agencies in bid protests are smart and understand the procurement law.  When a bid protest appeal lands on their desk, one of the first things they look at it is whether the protest and subsequent appeal were filed in a timely manner.    

Can the Board of Contract Appeals order the State of Maryland to award a contract to a particular contractor?

No.  The Board of Contract Appeals does not have the authority to award a contract to a particular vendor.  The Board may sustain or deny the bid protest appeal.  

What happens if the Board Sustains the Protest?

It depends.  Sometimes the Agency will take steps to award the contract to a particular vendor.   Sometimes it will elect to re-solicit or take some another step.       

Topic #3: Contract Claims

What is a contract claim?

A contract claim involves a dispute between a contractor and a state agency arising out of government contract.  Claims relate to the breach, performance, modification, or termination of a procurement contract.  Contract claims can involve the quality of performance, compliance with contract provisions, compensation, claims and change orders, terminations, or other matters arising out of the contract. 

Who can bring a contract claim?

Contract claims may be initiated by both contractors and state agencies.     

Is discovery permitted in appeals of contract claims?

Yes.  Formal discovery, including depositions, interrogatories, and admissions, are permitted.  See COMAR 21.10.06.14 and 21.10.06.15.  Contracts claims, particularly those involving construction cases, are fact intensive.  They often involve expert testimony and many documents.  

Topic #4: Board of Public Works

Who serves on the Board of Public Works?

The Board is composed of the Governor, Comptroller, and State Treasurer.

What role does the Board of Public Works play in the award of State of Maryland contracts?

Certain contracts must be approved by the Board of Public Works before they are executed and work can commence.  The Board of Public Works also adopts regulations and advisories that help shape Maryland Procurement law.  The Board wields great power over Maryland procurement.  

The Board of Public Works has delegated some of its contract approval authority to State of Maryland Procurement agencies.  See COMAR 21.02.01.04.

Topic #5:  Trusted advisors at KSC Law

Christopher R. Ryon leads the procurement and government contracts practice at KSC Law.  He is one of the few lawyers in private practice who understands the nuances of Maryland Procurement Law.  Chris brings to the table an inside perspective and assists government contractors in all aspects of working with the State of Maryland.  

As a former Assistant Attorney General with the Contract Litigation Unit, Chris represented the major procurement agencies of the State of Maryland: the University System of Maryland (USM); the units under the Maryland Department of Transportation (MDOT); the Department of Budget and Management (DBM); and the Department of General Services (DGS).  Chris has successfully litigated a variety of complex cases, including sophisticated bid protest appeals and multi-million dollar government contract claims.  This work has included cases involving large construction projects such as the Bay Bridge and Inter County Connector (“ICC”).  He has also litigated healthcare related cases involving HMO services and the State’s Pharmacy Benefits Management (“PBM”) contract.