Scott Livingston Maryland Procurement Law Attorney
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Scott A. Livingston Procurement Law Attorney Concentrating on Maryland State Board of Contract Appeals (MSBCA) Bid Protests and Contract Claims
Bid protests happen quickly. There is no time for a learning curve. Scott Livingston and the team at Rifkin, Weiner, Livingston, Levitan & Silver, LLC (RWLLS) are structured — at a moment's notice — to protect your legal rights under Maryland procurement law. Sometimes you need a procurement attorney, other times you need government relations support, and often you need both forms of advocacy. RLLS provides either or both. Scott Livingston has more than 25 years experience after serving as an Assistant Attorney General working on contract issues on behalf of the State. He has concentrated on representing contractors on bid protests and contract claims. RLLS has extensive Maryland procurement law experience. We are here when you need us.
 
 
 
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Scott A. Livingston, Esq.
Our team concentrates on Maryland state procurement and contract law backed by the powerful resources of the firm of Rifkin, Weiner, Livingston, Levitan & Silver, LLC. We have represented hundreds of contractors and vendors at the Maryland State and local levels. We have successfully handled many protests on behalf of clients challenging a contract award. Scott Livingston has handled more bid protests than any attorney in private practice. Our procurement practice areas include: Government Contract Legal Services; Procurement-Based Legal Services; Contract Counseling; Pre-Award Litigation; Debarment and Suspension; and Contract Claims and Litigation.
 
 
 
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Executive Order on Apprenticeship Programs
By Scott Livingston

Governor O’Malley issued an executive order calling upon state agencies to use bidders’ participation in apprenticeship programs as a favorable factor in the award of construction contracts. Executive Order 01.01.2013.05, (September 20, 2013), states, “Encouraging the growth of apprenticeship training programs in the construction industry, particularly in areas with high unemployment, will protect the State’s interest in successful project delivery.”

Some, but not all contractors, participate in apprenticeship programs or offer reliable plans for labor staffing. For those contractors that have such apprenticeship programs, including apprenticeship programs approved by the Maryland Apprenticeship and Training Council or the U.S. Department of Labor, the agencies may give credit (i.e,. give a higher ranking/score in the evaluation) in the award of the multi-million dollar construction contracts.

The Executive Order may significantly impact awards of public construction contracts and projects involving public-private partnerships, along with affecting prevailing wage determinations applicable to those projects. The Executive Order also encourages bidders to voluntarily submit a “community hiring, training and/or outreach plan for high unemployment areas.” Agencies are permitted to give weight in awarding contracts to bidders that have such plans.

It is unclear how such weight could be given in procurements under the competitive sealed bidding method of source selection. The invitation for bids specifies the material terms of the contract, other than price; namely, the quality, quantity, time of delivery of construction services. These terms are specified in detail so the bidders compete on equal footing. Thus, “procurement contract” for public works construction is awarded to the responsible bidder that submits the low responsive bid.

Beware, however, public-Private Partnerships are not “procurement contracts” so different rules may govern selection of the awardee may take into account other factors.

View the executive order: executive-order-apprenticeship-programs.pdf

For questions or comments, contact ScottLivingston@rwlls.com; (301) 951-0150.
 
 
 
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Rifkin, Weiner, Livingston, Levitan & Silver, LLC Congratulates Our Client
M. Luis Construction on President Obama's Visit


President Barack Obama Visits M. Luis Construction
Points to M. Luis Construction as Example of American Dream


ROCKVILLE, MD, OCTOBER 3, 2013 — President Barack Obama spoke to a gathering of the press, employees and guests of M. Luis Construction today at their Rockville, Maryland asphalt manufacturing plant. With the plant as a backdrop, he used the public forum to pressure House Republicans to end the government shutdown, while highlighting the role of businesses like M. Luis in the economy's recovery over the past three years.

"We've added 7.5 million more jobs, and more small businesses have gotten loans to grow and hire with help of the Small Business Loan Act I signed three years ago. That program is part of what allowed M. Luis to grow. We've made steady progress and we can't afford to threaten that progress right now with a government shutdown," the President said.
 
Read more: President Obama Visits M. Luis Construction >
 
 
 
 

 

RECENT MSBCA DECISIONS
Pre-bid Knowledge of Subcontractors May Be Imputed to Bidder


Brawner Builders, Inc., MSBCA No. 2813 (July 24, 2013)

In January, 2011, the State Highway Administration ("SHA") awarded Brawner Builders, Inc. ("Brawner") a contract for bridge deck replacement on four bridges in Anne Arundel County. Within the scope of work set forth in the Invitation for Bids ("IFB"), the contractor was required to clean and repaint the "facia" of all bridge beams, as well as welding reinforcing rods to the top flanges of load-bearing beams. In order to weld these rods, the top flange would need to be free of paint.

All four bridges were constructed prior to 1948, pursuant to the specifications of the State Roads Commission and American Association of State Highway Officials at the time. Prior to commencing work on the project, it was impossible for Brawner to know whether the top flange - upon which the concrete deck rested - had been painted.

After removing the old concrete bridge deck, exposing the top flanges of the beams, Brawner noticed that the flanges were painted. SHA instructed Brawner to remove the paint from these flanges, which resulted in a cost of over $100,000. Brawner submitted a claim on two grounds: (1) the term "facia" included only the vertical faces of the beams, rather than the horizontal flanges; and (2) that the presence of paint on the top flanges was a differing site condition undisclosed by SHA prior to bid opening. SHA denied the claim, and Brawner appealed to the MSBCA.

The MSBCA denied the Appeal on both grounds. First, the MSBCA found that Brawner's performance of the work belied its proposed interpretation of the term "facia," as Brawner performed paint removal on the bottom flanges of the beams. Second, the MSBCA denied Brawner's differing site condition appeal because Brawner could not show that its bid was based upon an understanding that paint would not be found on the top flanges. In finding the Brawner claim was without merit, the MSBCA noted testimony from Brawner's subcontractor; namely, that he knew of the possibility that paint could be found on the top flange after the removal of concrete. This knowledge was imputed to Brawner, who knew or should have known that it might find paint on top of the beams.
 
Read more: Maryland Procurement Alert, August 2013 >
 
 
 
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Scott A. Livingston, Esq.
301.951.0150
301.951.0172 (fax)
scottlivingston@rwlls.com
7979 Old Georgetown Rd.
Suite 400
Bethesda, MD 20814
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Please be aware that each case is different and the past record is no assurance of favorable results in any future case. For more information, please review our Legal Disclaimer.
 
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