CASE HISTORY

BID PROTESTS & APPEALS

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Scott Livingston has handled bid protest and appeals at the Maryland State Board of Contract Appeals involving many agencies of the State of Maryland. The issues involve construction, employment benefits, health care, information technology, insurance, and public-private partnerships. The amounts of contracts under protest is set forth in the Board’s Decisions, or are reasonable estimates.

REPRESENTATIVE MATTERS INCLUDE

  • Kennedy Business Services MSBCA # 3064 (2018). 
    The Offeror proposed an MBE to do work for which it lacked certification.  The MSBCA decided the agency had no legal authority to allow post-bid opening modification to replace unqualified MBE and/or allow certified MBE to be swapped in.  The MSBCA ruled in favor of RWL client that submitted a proposal which fully complied with MBE requirements.

    • State Agency:  State Board of Elections

    • Industry: temporary staffing

    • Amount of contract under protest:  $19,000,000

  • Gantech, Inc. MSBCA #’s 3021, 3023 (2017). 
    MDOT solicited for on-call, temporary contingent labor services.  Gantech received the highest technical ranking. The MDOT RFP, however, called for evaluation of financial proposal inconsistent with the way used in CATS+, even though, as the MSBCA stated, CATS+ “sets the standard for the way IT services are to be procured” by the State of Maryland.  MSBCA found MDOT had not abused its discretion in the award of the contracts.

    • State Agency: Maryland Department of Transportation

    • Industry:  occupational medical services

    • Amount of contract under protest:  $12,000,000

 

  • Chesapeake Turf, Inc. MSBCA # 3051 (2017)
    Low bidder submitted defective MBE participation schedule in response to IFB for dune restoration services.  The RWL client, second low bidder, submitted compliant MBE schedule and successfully protested.  MSBCA decided the Procurement Officer must reject low bid as non-responsive in cases where the MBE Forms are not complete and accurate as bid.

    • State Agency:  Department of General Services

    • Industry:  construction, dune restoration

    • Amount of contract under protest:  $7,500,000

 

  • Concentra Medical Centers MSBCA #’s 2996, 3014, 3016 (2017)
    RWL client, the proposed awardee, and the Dept of Budget and Management (“DBM”) defended against bid protest appeal.  The protestor failed to prove agency’s selection of the successful offeror was “arbitrary and capricious.”  With respect to one alleged flaw, the MSBCA correctly interpreted “the RFP requirement was not for having actually serviced at least 10,000 individuals but rather the Offeror have the capability of providing services to a least 10,000 individuals” among its client base. 

    • State agency: Dept of Budget and Management

    • Industry:  occupational medical services

    • Amount of contract under protest:  $11,000,000

 

  • Cigna Corporation MSBCA #2910 (2015)
    State Agency selected RWL client for award of contract for health care insurance.  The agency rejected all proposals, citing defects in the agency’s initial pricing sheet.   The MSBCA ruled that the agency lawfully rejected all proposals.  The agency decided to extend the contract – beyond the years originally competed for, including options—with the incumbent.  The MSBCA decided this extension was void but stayed this decision in light of action by the Board of Public Works.  The circuit court of Baltimore City overruled the MSBCA decision.

    • State agency: Maryland Transit Administration

    • Industry:  employee health insurance

    • Amount of contract in dispute:  $47,000,000

 

  • Trinity Services Group, MSBCA #’s 2917, 2931 & 2935 (2015)
    RWL client, the incumbent, protested award to lower priced offer excessively, among other reasons, because there were errors in the RFP’s estimated quantities for number of meals for inmates.  The procurement officer misrepresented the circumstances, and the Board of Public Works (Governor, State Treasurer and Comptroller), when it originally accepted the recommendation of award.  The MSBCA rejected the bid protests and the state agency eventually cancelled the procurement.    In a sudden shift in the agency’s regular practice, DPSCS decided to perform the work -- food services for inmates—using it own state employees rather than award a contract to private, outside vendors. 

    • State agency: Md. Department of Public Safety and Corrections

    • Industry:  food services at correctional facilities

    • Amount of contract in dispute:  $82,000,000

 

  • Shirley Contracting Company #2932 (2015). 
    SHA selected RWL client for award of a design-build highway construction project.  The disappointed offeror’s technical proposal was scored substantially lower ranked and its price was slightly (0.05%) lower than the awardee.  In the trade-off session, the agency decided that the superior technical proposal was worth paying slightly more.  The MSBCA decided SHA acted reasonably, and denied the protest on appeal.

    • State agency:  State Highway Administration

    • Industry:  highway construction

    • Amount of contract in dispute:  $94,000,000

 

  • Legal Aid Bureau, Inc., MSBCA #2826, 2826 (2013). 
    Legal Aid Bureau protested several improprieties in the solicitation to procure legal services for “Children in Need of Assistance.”  The agency denied the protests.  The MSBCA upheld the procurement officer’s final decision, concluding the RFP specifications and evaluation criteria were not unlawful.  In the meantime, the agency revised the solicitation to satisfy fix improprieties, as identified the protest.

    • State agency:  Dept of Human Resources

    • Industry: legal services for Children in Need of Assistance

    • Amount of contract in dispute: $15,000,000/year (estimated)

 

  • Catalyst, Rx, MSBCA #’s 2759,2762,2786, 2780, and 2784 (2012). 
    DBM selected the RWL client, Express Scripts, for award of a 5-year multi-billion dollar contract.  The protestor, the incumbent, was ranked higher technically but at a higher cost.  The MSBCA, in a 74-page decision, concluded that the agency’s evaluation of proposals was not arbitrary, capricious, or otherwise unlawful            

    • State agency:  Dept of Budget and Management

    • Industry: Pharmacy benefits management services

    • Amount of contract under protest dispute: $2,200,000,000

 

  • Policy Studies, Inc. # 2806 (2012).
    The incumbent submitted was lowest price and highest technically ranked proposal.  It fell short of the MBE requirements; namely, it didn’t offer to meet percentage goal and did not ask for a waiver. The RWL client successfully protested and Procurement Officer rejected the incumbent’s proposal.  The MSBCA upheld the agency’s final action.

    • State agency:  Dept of Health and Mental Hygiene

    • Industry: Medicaid enrollment broker

    • Amount of contract under protest: $10,000,000

 

  • PDI-Sheetz Construction, Inc. # 2757 (2011).
    SHA established minimum and maximum prices which could be bid for miscellaneous maintenance work on bridge structures. The low bidder submitted a bid for a certain item but the price was less than the minimum allowed. The second low bidder, the RWL client, was fully compliant with the min and max requirements.  The MSBCA overruled SHA’s selection.

    • State agency:  State Highway Administration

    • Industry: bridge maintenance

    • Amount of contract under protest: $11,000,000

  • Accenture, LLP #’s 2640, 2669 (2010).   
    The RFP solicited for technical expertise to maintain its mainframe systems.  One offeror interpreted ambiguous specs concerning the financial proposal form.  The specs contained ambiguities, which the MSBCA ruled were not “latent” (hidden).  The MSBCA ruled that the protest was untimely because the offeror knew, or should have known, of the ambiguities in the BAFO requests. 

    • State agency:  Dept of Human Resources

    • Industry:  technical expertise to maintain mainframe systems.

    • Amount of contract under protest:  $82,000,000

  • Spectrum Health Services #2686 (2010).  
    Offeror’s MBE submission did not comply with requirements and the proposal was deemed to be not reasonably susceptible of being selected for award.  Prior to 2011, the MSBCA lacked jurisdiction to resolve bid protests concerning compliance with MBE provisions.  The MSBCA ruled it lacked of jurisdiction, based on a regulation which the Court of Special Appeals eventually ruled was unlawful.

    • State agency:  Dept of Public Safety and Corrections

    • Industry:  substance abuse assessment evaluations

    • Amount of contract under protest:  $7,000,000

 

  • Facchina-Trumbull-Skanska JV.  #2630 (2009).
    This a bid protest dealt with award of the single largest construction contract in SHA history; namely, Section B of the Intercounty Connector.  SHA rated the protestor as “Good+” and it had the lower price in the amount of $559,073,500. SHA selected the RWL client, MD200, which had the higher overall technical rating with a rating of “Exceptional-” and it had the second low price of $559,745,500. The trivial price difference between the two offers was $672,000, or approximately .12% (comparable to buying some thing for $100.12 instead of $100.00).  The MSBCA upheld the SHA best value determination that that the slightly higher price was worth the technical superiority concerning environmental protection.

    • State agency:  State Highway Administration

    • Industry:  highway construction

    • Amount of contract under protest:  $561,000,000

 

  • Concrete General, Inc. #2587 (2008). 
    SHA rejected all bids in order to revise the IFB provisions on MBE participation.   The new revisions explicitly set forth federal regulations that were hitherto merely incorporated by reference in the original IFB.  The MSBCA determined that such rejection of all bids was not, under the circumstances, arbitrary and capricious.

    • State agency:  State Highway Administration

    • Industry:  highway construction

    • Amount of contract under protest:  $9,800,000

 

  • Caremark, Inc. #’s 2544, 2548, 2565. (2007). 
    The protestor argued the PO misevaluated the proposal.  Procurement Officer found, among other things, offeror’s answer to an Agency question to be “purposely confusing” and drafted so as to give the offeror “an out on” the issue. 

    • State agency:  Dept of Budget and Management

    • Industry:  pharmaceutical benefits management

    • Amount of contract under protest:  $1,600,000,000

 

  • CSCI, LLC.  # 2526 (2006).  
    Bid protest – submitted via facsimile—may not be considered because the solicitation did not specifically authorize protests to be sent by fax.  Protest denied on grounds of untimeliness.

    • State Agency:  Md. Aviation Administration

    • Industry:  janitorial services

    • Amount of contract under protest:  $750,000

 

  • Yellow Transportation #2374,2380,2381, 2382, & 2389 (2006)
    Board awarded certain costs incurred in successful pursuit of bid protest appeal on the merits.  The appeal spanned 21 days and included testimony from 22 witnesses.  The reimbursable items were transcript costs, court reporting services, costs of preparation of exhibits, etc.  Costs for attorneys’ fees were not  recoverable under COMAR 21.10.07.09.

    • State Agency:  Md. Transit Administration

    • Industry:  para-transit transportation services

    • Amount of award for costs:  $30,000

 

  • David A. Bramble, Inc. # 2550 (2006). 
    Low bidder omitted documents required to be submitted with bid.  Second low bidder protested on grounds the low bid was not responsive because it failed to acknowledge (and submit) addendum that modified the amount of liquidated damages, from $500 to $1000/per day.  The Board upheld SHA’s rejection of the bid protest on the grounds that the defect was a minor irregularity.

    • State Agency:  Md. State Highway Administration

    • Industry:  highway maintenance

    • Amount of contract under protest:  $2,400,000

 

  • CJ Miller, Inc. #2256 (2006). 
    Second low bidder protested on grounds that low bidder’s bid failed to comply with MBE requirements.  The Board lacked jurisdiction (at that time) to hear and decided protests dealing with compliance with MBE requirements.

    • State Agency:  Md. State Highway Administration

    • Industry:  highway construction

    • Amount of contract under protest:  $1,000,000

 

  • L.S. Lee, LLC.  # 2463 & 2468 (2005).  
    Low bidder failed to sign the Comprehensive Signature Page, which requires signatures for the various bid and contract affidavits as well as the bid itself.  In effect, the bid omitted required executed affidavits.   On appeal, the Board ruled that the low bid was not responsive because of the flaws and absence of other material clearly indicating bidder’s intent.

    • State Agency:  Md. State Highway Administration

    • Industry:  installation of median traffic barriers

    • Amount of contract under protest:  $4,100,000

 

  • American Paving Corp # 2498 (2005). 
    Low bidder’s bid bond was “irregular.”  The bid security (bond) accompanying the bid did not provide the contract number project.   The Board upheld SHA’s decision to treat the flaws as “minor irregularities” because, even with the flaws, the bond was enforceable.

    • State Agency:  Md. State Highway Administration

    • Industry:  installation of median traffic barriers

    • Amount of contract under protest:  $2,700,000

 

  • Yellow Transportation #’s 2374,2380,2381, 2382, & 2389 (2004). 
    The RWL client, was the incumbent contractor that provided paratransit (vans) services transport disabled individuals who could not take regular public busses.  After the proposals were submitted, one offeror communicated directly with the Chair of the technical committee and others via 25+ emails.  Bias was reflected in disclosure of inside information to their favored offeror. The MSBCA ruled that the improper communications, among other things, showed substantive evidence of bias, and appearances of impropriety.  The MSBCA decided the agency could not award a contract under this tainted procurement.

    • State agency: Maryland Transit Administration

    • Industry:  paratransit services

    • Amount of contract under protest:  $47,000,000

  • Daisy Concrete of Maryland # 2338 (2003). 
    The procurement officer rejected a bid because of the omission of a signature on the Bid Signature Sheet.  The PO initially rejected the low bid as not responsive. During the appeal process, the PO sought further legal advice PO changed his mind, and selected the low bidder for award. The Board upheld the agency’s decision.

    • State agency: Maryland Transportation Authority

    • Industry:  resurfacing highway

    • Amount of contract $15,000,000

With the fast paced nature of bids, it’s important to act quickly. 

Contact Scott Livingston today to learn more how to file or defend against a bid protest.

(301) 951-0150

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