Bid Protests: Timing

In a recent Maryland State Board of Contract Appeals (“Board”) case, the Board found that a contractor failed to file a timely bid protest. The Board ruled that the bid protest should have been made when the construction company knew or should have known the basis for its protest and not at the time the bid was awarded. A high burden is placed on any contractor submitting bids for State contracts, because a bid protest may need to be filed before the bid is awarded or repercussions felt by the contractor.

In this most recent case, the State Highway Administration (“SHA”) accepted invitations for bids for a Community Safety and Enhancement project (“Contract”). The bid of the lowest bidder was announced as “irregular” because of insufficient bid security; however, subsequent to the opening of the bids, the SHA found that the low bidder’s bid was valid and effective. The low bidder was then awarded the Contract. After being informed by SHA of the award of the Contract, a bid protest was brought by the second lowest bidder. The Board ultimately found that the bid protest should have been brought within seven days from the time the lowest bidder’s bid was deemed “irregular” and not within seven days after the bid was awarded. The Board, as it has done numerous times in the past, places a strict interpretation on the timing of a bid protests as it relates to a construction company’s basis for the protest. As such, if you intend to bid any public projects in Maryland, be vigilant in determining whether all proper procedures have been followed. As soon as there is a violation, even if it occurs prior to the bid being awarded, a bid protest may be your only option to protect your rights.

If you have any further questions on bid protests or construction law, please contact Michael W. Siri at siri@bowie-jensen.com.

Repose and Limitations Periods

Time deadlines are clearly an important part of construction claims. Additionally, States impose limitations and repose periods on the time frame to bring a legal action. The difference between a repose period and a limitations period is that the repose period begins to run from a specific envent set forth in a statute, such as completion of the work. Furthermore, the statute of limitations can bar a claim even if the repose period has not expired. Likewise the repose period can bar a claim even if the limitations period has not expired



Md. and DC have 10 year repose periods for personal injury and property damage claims. Md.'s repose period begins to run when the project is fit for its intended use. DC's repose period begins to run from the date of project completion. Repose periods are usually implicated by latent defect cases, where the defect could not have been discovered but eventually caused personal injury or property damage during the 10 year time frame. If the injury occurred outside the ten year time frame, then the claim is completley barred, even if the statute of limitations periods have not expired



Md. and DC have three year limitations periods. In Md. the limitations period begins to run when the plaintiff knew or should have known of his or her claim. In DC., at least for breach of contract claims, the limitations period begins to run from the time of breach.



Thus, the limitations period and repose periods often intersect. For example, an owner can suffer property damage from defective work two years after completion and will then have three years to bring suit. However, if an owner suffers property damage nine years after completion, it will have only one year to bring a claim because of the ten year repose period.

For further questions contact Matt Hjortsberg at (410) 583-2400 or at Hjortsberg@bowie-jensen.com

Bid Protests and Appeals - Time for Filing

Maryland provides only a limited time for a contractor to file a bid protest and failure to abide by these time constraints will be fatal to all claims by the contractor. Further, Maryland provides a limited time for an appeal to the Maryland Board of Contract Appeals and contractors must be aware of these rigid time restrictions when considering protesting an unsuccessful bid or denial of any claim.

If a contractor believes it has been aggrieved in connection with the solicitation or the award of a governmental construction contract in Maryland, the timing for a bid protest depends on the stage of the procurement process. If improprieties in a solicitation are apparent before either the bid opening or the closing date for receipt of initial proposals, the bid protest must be filed before the bid opening or the closing date for receipt of the initial proposals. As a result, a contractor with knowledge of any improprieties at this stage of the procurement process cannot wait until the bid has been awarded to make protest. The contractor must act immediately to preserve its claims. Further, if the discovery of the impropriety occurs after the bid has been awarded, a contractor may file a protest based no later than 7 days after the basis for the protest is known or should have been known, whichever is earlier. Regardless of the stage of the procurement process, a contractor must act immediately if any impropriety has been discovered.

Further, a contractor must file an appeal with the Maryland Board of Contract Appeals (the “Board”) within 30 days from receipt of any ruling, including a denial of a bid protest or a denial of any claim. The Board recently dismissed a contractor’s appeal for a claim of over $390,000.00 in unpaid change orders because of an untimely notice of appeal. The contractor filed a notice of appeal via electronic mail to the Board of the Contract Appeals, which is impermissible. Despite claims by the contractor that a notice of appeal had been filed via regular mail, the fact that the Board could not verify receipt within 30 days of the final decision resulted in dismissal of the appeal. As a result, the failure to meet the requisite deadline cost the contractor its opportunity to be heard on the substantive issues of the case.

Timing to file bid protests and any appeals with the Maryland Court of Contract Appeals are stringent. If you intend to file either, be sure to contact an attorney as soon as possible so you do not waive any of your rights. If you have any additional questions, please contact Michael W. Siri at siri@bowie-jensen.com or at 410-583-2400.