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Scott Livingston has over 25 years of experience concentrating on Maryland Procurement Law Bid protests happen quickly. There is no time for a learning curve. Scott Livingston and the team at Rifkin, Livingston, Levitan & Silver, LLC (RLLS) 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.  December 20, 2010 Press Release Downtown Baltimore City Property Owners Sue To Stop No-Bid, $1.5 Billion State Center Project That Circumvents Maryland's Procurement Laws A group of prominent downtown Baltimore commercial property owners, supported by the analysis of a highly regarded economist, filed suit today in Baltimore City Circuit Court to halt the heavily taxpayer-subsidized $1.5 billion State Center project on the grounds that competitive bidding laws have been ignored or circumvented. READ MORE >  August 2, 2011 MSBCA Gets MBE Protest Jurisdiction Salisbury University v. Joseph M. Zimmer, Inc., 2011 Md. App. LEXIS 66 (May 27, 2011) According to a recent Court of Special Appeals decision, COMAR 21.10.03.14 - which prohibited bid protests regarding Minority Business Enterprise ("MBE") participation goals - is beyond the scope of the Board of Public Works' ("BPW's") authority to promulgate regulations. Pursuant to Zimmer, contractors aggrieved by a procurement unit's MBE-related decision have the statutory right to submit bid protests under the procedures set forth in COMAR 21.10.02, and those protests may be appealed to the Maryland State Board of Contract Appeals ("MSBCA"). In Zimmer, the Appellant, Joseph M. Zimmer, Inc. ("JMZ") submitted the low bid in response to an Invitation for Bids ("IFB") published by Salisbury University ("SU"). The IFB set forth an MBE participation goal of 10% of the total contract value. JMZ submitted a bid that indicated it met the 10% MBE goal. SU determined that the bid listed an MBE on the Participation Schedule that was not properly certified by the Maryland Department of Transportation. As a consequence, SU rejected JMZ's bid. JMZ filed a bid protest of SU's rejection determination under COMAR 21.10.02. SU responded to JMZ's letter by noting that the protest could not be filed due to COMAR 21.11.03.14, which stated, "a protest under COMAR 21.10.02 may not be filed ... concerning any act or omission by a procurement [unit] under this chapter [regarding MBE policies]." JMZ appealed SU's protest denial to the MSBCA. The MSBCA ruled that it lacked jurisdiction because COMAR 21.11.03.14 prohibited protests regarding MBE policies. JMZ brought a Petition for Judicial Review in Circuit Court, arguing that the BPW's promulgation of COMAR 21.11.03.14 was ultra vires, or beyond BPW's authority. The Circuit Court ruled in favor of JMZ's position. SU appealed the Circuit Court's decision to the Court of Special Appeals, arguing both (1) that JMZ's appeal was moot, since the contract had already been executed with and performed by another, and (2) that COMAR 21.11.03.14 was valid. With regard to the mootness of the appeal, the Court of Special Appeals ruled that - while in the instant matter a remedy may not be available for JMZ - the matter is an "important problem which, absent resolution, will reoccur and may evade judicial review." Accordingly, the Court of Special Appeals found that the case should not be dismissed on the grounds of mootness. In examining the validity of COMAR 21.11.03.14, the Court of Special Appeals found that State Fin. & Proc. §§ 15-215 and 15-217 invalidated the regulation. State Fin. & Proc. § 15-215(c) defines a "protest" as including "a complaint that relates to the formation of a procurement contract" including "the determination of the successful bidder or offeror." Section 15-217(a), "Initiation of protest or contract claim," sets forth, "[a] bidder ... may submit a protest to the procurement officer." The Court of Special Appeals first rejected SU's argument that the preamble to the State's first MBE law (enacted in 1978) indicated the General Assembly's intent that the law did not create a private right of action. According to the Court, the first MBE law and the current State Fin. & Proc. article are "two separate statutes." As such, the preamble to the initial MBE law cannot affect the current, "unlimited right to file a bid protest concerning the determination of the successful bidder." Next, the Court rejected SU's argument that the General Assembly indicated its assent to the regulation by amending the MBE law in 2006 after the MSBCA had previously ruled that COMAR 21.11.03.14 prevented the filing of bid protests regarding MBE matters. See, e.g., Knott Constr. Co., 6 MSBCA ¶ 555 (2004). The Court noted that the 2006 re-enactment of the MBE law did not give express attention to whether BPW could promulgate such a regulation; simply because the General Assembly re-enacted the MBE law does not impair the bidder's right to a protest under State Fin. & Proc. §§ 15-215 and 15-217. Third, the Court dismissed SU's argument that §§ 15-215 and 15-217 gives the MSBCA jurisdiction to hear disputes under State Fin. & Proc. Title 15, but does not give jurisdiction over disputes under Title 14, "Minority Business Enterprise Policies." According to the Court, "Title 15 gives the [MSBCA] jurisdiction to hear all disputes, including MBE disputes, and Title 14 does not purport to take that jurisdiction away." Notably, this decision distinguished a related, unreported opinion, David A. Bramble, Inc. v. Maryland Dept. of Gen. Svcs. (No. 51, Sept. Term 2009) in which the Court of Special Appeals' panel did not declare COMAR 21.11.03.14 invalid. Impact of Zimmer decision: For some time now, a bidder faced the cost- and time-prohibitive requirement of complaining rejection of their bid on MBE grounds by way of filing an action for injunctive and declaratory relief in Circuit Court, rather than the relatively simpler process of filing a protest with the procurement unit and subsequent MSBCA appeal. Now, bidders may file protests and appeal those protests to the MSBCA--a review panel that deals exclusively with procurement law as opposed to judges who have to juggle cases involving other subject matters. Because of this prior procedural deterrent, there has been a dearth of Maryland case law regarding the interpretation and implementation of the various MBE provisions set forth in State Fin. & Proc. Title 14 and COMAR 21.11.03. Combined with the recent settlement in Kline v. MDOT which led to the SHA Pilot Procurement Program, confusion among bidders as to the exact requirements of various MBE and DBE provisions found in statutes, regulations and solicitations may be clarified by MSBCA opinions and the agencies themselves. Recent issues of the Maryland Procurement Alert newsletter Subscribe to the Maryland Procurement Alert newsletter  |
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