Minor Irregularities in Bid Protests

Minor irregularities in competitive sealed bids may be waived by the procurement officer upon the determination that such a waiver is in the State of Maryland's best interest. In a recent Maryland Board of Contract Appeals (“MBOCA”) case, the board held that a procurement officer acted completely within his scope of discretion after permitting a contractor to correct minor irregularities in the bid after the bid opening. In this case, the lowest bidding contractor failed to submit a Lead Paint Accreditation Certificate with its bid; however, the procurement officer permitted the contractor to remedy the irregularity. The MBOCA determined that a “minor irregularity is one which is merely a matter of form and not substance or involves some immaterial or inconsequential defect or variation in a bid from the exact requirement of the solicitation, the correction or waiver of which would not be prejudicial to the other bidders." In this matter, the failure to submit the Lead Paint Accreditation Certificate was deemed a minor irregularity. Further, in making its opinion, the MBOCA stated that it was reluctant to substitute its judgment for that of the agency. On a practical note, the contractor filing the appeal was precluded from arguing at the hearing because it was not represented by counsel. The Code of Maryland Regulation requires representation by an attorney during the appeal of the bid protest process.

If you have any questions related to bid protests or construction law, contact Michael W. Siri at siri@bowie-jensen.com or by phone at 410-583-2400.