The Maryland State Board of Contract Appeals (“MSBCA”) has once again made it clear that the seven day time period for lodging a bid protest is inflexible, absolute and unassailable. In other words, “don’t blow it.”
The Maryland Transit Administration (“MTA”) issued an invitation for bid “for the purpose of identifying a qualified vendor to provide inspection, testing and maintenance services for fire suppression systems at MTA facilities.” On July 30, 2013 the MTA notified Advanced Fire Protection Services (“AFPS”) by email that it was the low bidder, and should expect to receive the contract documents “soon.” On August 14, 2013, the MTA procurement officer emailed AFPS saying that “she was getting the contract ready for approvals.”
However, instead of receiving the contract documents, on September 17, AFPS received a rejection of the bid on the grounds that its Disadvantaged Business Enterprise (DBE) firm, Amigos Labor Services, did not fall in the “correct category for this particular type of work”. AFPS, attempted to contact the procurement officer to determine the factual basis for this statement. AFPS then experienced the “run around.”
Initially, AFPS could not reach the procurement officer. After some delay, AFPS finally got in contact with her, but she stated the decision had been made by the MTA’s Office of Fair Practices and gave AFPS the contact info for the officer supposedly responsible for the rejection of the bid. When AFPS reached the office of fair practices on September 23, 2013, they instructed AFPS to re-contact the procurement officer. Again, AFPS had difficulty reaching the procurement officer and could not get in contact with her until October 7, 2013. On this day, the procurement officer said she could read, but not send, the official rejection letter to AFPS, AFPS’s notes from the phone conversation in which the procurement officer read the rejection letter describe the rejection on the grounds that the scope of work performed by Amigos Labor Services was not congruent with the work needed by MTA. On the following day of October 8, 2013, AFPS noted its bid protest to MTA asserting that the MTA made a mistake with respect to its DBE analysis. On October 11, 2013, the procurement officer rejected the bid protest on the grounds that (1) the contract called for the testing and maintenance of fire suppression systems and not for the category of construction labor that AFPS offered through the Amigos Labor Services; and (2) that the protest was not filed in a timely matter. AFPS appealed, arguing that it could not have protested earlier because it did not know the factual basis for which its bid was rejected.
The decision made by the Board in the hearing that commenced on February 12, 2014 rejected the appeal stating that AFPS had failed to file its protest timely pursuant to COMAR 21. 10. 02. 03, which provides in part, “protests should be filed not later than 7 days after the basis for protest is known or should have been known, whichever is earlier” and “a protest received by the procurements officer after the time limits prescribed…may not be considered”. The Board ascertained that, although AFPS claims it could not have filed a report prior to October 8, 2013 because it did not know the grounds of the MTA’s rejection of its bid until the day prior, the letter on September 17, 2013 provided enough information for the appellant to have formed a bid protest by September 27, 2013. Therefore, the Board rejected the appeal because of the statute explicit by the 7-day limitation. This appeal represents another instance where State procedures in combination with State bureaucracy tripped up a contractor, and thus underscores the importance of meeting all of the deadlines.