The Maryland Board of Contract Appeals and “The Death of Common Sense”

In 1998, lawyer Philip Howard wrote The Death of Common Sense, which shined a spot light on how bureaucratic concerns and procedures often overshadowed governmental decisions and results. A recent Maryland Board of Contract Appeals case demonstrates that sixteen years later common sense is still dead. 

The Board upheld the Maryland Transportation Authority’s (“MDTA”) rejection of the lowest bid submitted to clean and repaint the Millard Tydings Memorial Bridge that stretches over the Susquehanna between Harford and Cecil Counties. The Invitation for Bid (“IFB”) contained a 1 percent Veteran Small Business Enterprise (“VSBE”) requirement with the option to seek a waiver. MDTA provided a form in the bid package that had directions to check off whether the bidder was seeking a waiver or complying with the VSBE requirement. MDTA however supplied a form with no boxes or any other space in which to check off which choice the bidder was selecting. Atlas Painting and Sheeting submitted $7.6M bid and the VSBE form. Because it did not plan to meet the VSBE requirement, and because the form did not provide any space to check off to seek a waiver, Atlas simply returned the form with its bid. Even though Atlas’s bid was $166,000 lower, MDTA rejected Atlas’s bid because it did not complete MDTA’s defective form. Atlas protested and MDTA upheld its decision. On Appeal, the Board of Contract Appeals affirmed the decision by MDTA, reasoning that Atlas should have brought the defective form to the attention of MDTA before it submitted its bid. Although this reasoning is legally correct, Atlas also argued that its failure to include a percentage for the VSBE requirement and its return of the form should have informed MDTA that it was seeking a waiver. In other words, since it did not plan to meet the VSBE requirement, but submitted a bid, then it obviously was seeking a waiver. This is called “deduction,” or some might say “common sense.” The Board of Contract Appeals was not swayed by this argument, and upheld the rejection of Atlas’s bid. Therefore, because of MDTA’s mistake, and the Board’s affirmation of it, the State of Maryland will pay $166,000 more for this project. Think about this the next time you pay that toll on I95 across the bridge.   

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