When responding to a Maryland solicitation (IFB or RFP), you need clear, accurate specifications of the agency’s requirements. Unclear requirements, unduly restrictive specifications, or the withholding of essential information may put you at an unfair competitive disadvantage in the bid process.
A consultation with a bid protest attorney during the procurement process can help your organization be evaluated fairly.
SCOTT LIVINGSTON IS AN EXPERIENCED BID PROTEST ATTORNEY
As the specialist in Maryland procurement, including in bid protests, Scott Livingston guides government contractors through bid protests as they relate to “improprieties in the solicitation” under COMAR 21.10.02.01B(3).
Improprieties in the solicitation can take multiple forms.
UNDULY RESTRICTIVE MINIMUM QUALIFICATIONS
RFPs which set forth unnecessarily restrictive minimum qualifications can effectively eliminate prospective bidders from competing on a level playing field. This reduces competition and may favor incumbent bidders who have previously worked with the agency.
For example, in an RFP for the construction of a corrections facility, bidders had to demonstrate an annual volume of no less than $300,000,000 in each of the 3 prior years. This eliminated one highly qualified prospective bidder that constructed such corrections facilities worth $350,000,000 in the most recent year, but only $550,000,000 in the prior 2 years.
WITHHOLDING RELEVANT INFORMATION.
Agencies that withhold relevant information may put bidders at a disadvantage.
For example, in one RFP, an agency sought to procure health care services including a pharmacy for a medical facility. The agency withheld records showing actual sales records. The incumbent bidder knew the actual numbers, so it was positioned to develop a more competitive financial proposal than newcomers who might inflate their financial proposals to cover the risk from the unknown.
It is unfair to newcomers, but there are legal remedies to deal with this problem.
VAGUE, AMBIGUOUS SPECIFICATIONS
RFPs with contradictory, vague or unclear requirements can result in a proposal being rejected.
For example, a solicitation for a construction project indicated in one instance that the State of Maryland would relocate a certain utility line, but elsewhere stated the winning bidder would perform this work.
Such contradictory information causes unnecessary confusion for bidders and results in inaccurate and incomparable bids.
In many cases, legal action is not required and we can amiably rectify errors in the solicitation by communicating promptly with the state agency.