Maryland State Board of Contract Appeals Dismisses Appeal Where Contractor Had No Reasonable Possibility of Being Awarded the Request for Proposal

In Appeal of Active Network, LLC, MSBCA 2920, the Maryland State Board of Contract Appeals considered whether the appellant had standing to bring forth a bid protest. Specifically, in response to a Request for Proposal, appellant ranked 7th out of 7th for both price and technical expertise, but claimed it would be entitled to the contract award. The MSBCA held that the appellant did not have standing, as appellant did not have a reasonable possibility of a substantial chance to be awarded the project.

The Maryland Department of Human Resources (“DHR”) sought Request for Proposals (“RFPs”) for operation of a statewide full service call center with interactive voice response capabilities and a customer relations management system. Seven proposals were submitted, including incumbent provider and appellant Active Network, LLC. The DHR awarded the contract to ICF Incorporated, who ranked first in technical expertise and third in total cost. Despite ranking last in both categories, Active Network brought forth an appeal, claiming it should have been ranked first in technical expertise.

The DHR sought to dismiss the case relying on the principle that a bidder which would not be next in line for an award could not pursue a bid protest. While this standard may easily be applied to cases involving Invitations for Bid (“IFBs”), where the agency awards the project to the lowest responsive bidder, the analysis related to standing for RFPs involves additional considerations. For RFPs, the evaluation requires a thorough and in-depth analysis to determine the best value to the State, which includes costs, but additional criteria. As such, in IFBs the lowest bidder does not automatically receive the contract.

Appellant’s argument centered on its technical expertise and the alleged erroneously ranking applied by the DHR. Appellant, however, even if it persuasively argued that it could somehow elevate itself above ICF Incorporated and the five other bidders in the technical expertise category, could not address the fact that its costs were the highest amongst all of the bidders. On cost alone, the Appellant’s bid protest failed. The MSBCA acknowledged that a bidder with price and technical expertise closer to ICF Incorporated would have had standing to prevent an outright dismissal of the appeal, which was not the situation in this matter.

From a practical perspective, contractors seeking to bring forth a bid protest must ensure they have proper standing to bring forth the claim. For IFBs, they must be the next lowest responsive bidder. For RFPs, they must meet all of the criteria set forth for bid award, which includes total cost, but also includes additional factors considered by the awarding agency.

For more information on procurement, bid protests, or appeals to the MSBCA, contact Michael Siri at (410) 583-2400 or