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Maryland State Board of Contract Appeals Rules That Procurement Officers, Not Reviewing Agencies, Are Authorized to Issue Notices of Final Decision for Projects

In Appeal of KBE Building Corporation, MSBCA 2915, the Maryland State Board of Contract Appeals considered whether a procurement officer has the authority to issue a final determination or if the final determination must be issued by the “reviewing authority and the Office of the Attorney General”, pursuant to COMAR 21.10.04.04C.

In this appeal, the Maryland Aviation Administration (“MAA”) awarded Appellant KBE Building Corporation (“KBE”) a contract to construct the International Building Expansion of Baltimore/Washington International Thurgood Marshall Airport (“BWI”).  During the course of construction, KBE filed a claim with the MAA for a 48-day extension and payment of $146,71.00 for alleged contract acceleration.  The procurement officer of MAA, after consultation with the Office of the Attorney General, denied KBE’s request, issuing a final determination on October 24, 2014.

KBE filed an appeal to the MSBCA on November 6, 2014; however, erroneously mailed the appeal to an incorrect address.  On December 10, 2014, the MSBCA docketed KBE’s appeal dated December 9, 2015.

KBE argued that the procurement officer for the MAA acted unilaterally by issuing the final determination because the regulatory provision requires the procurement office to first submit the letter for review to the reviewing authority and the Office of the Attorney General.  Therefore, under KBE’s argument, only another reviewing authority may issue a final determination.

The MSBCA found the issuance of a final determination by a procurement officer, after consultation with the Office of the Attorney General, routine and permissible under the regulatory requirements outlined by COMAR.  Further, the MSBCA found that the appeal had been filed untimely, as it had not been filed within 30 days of the final determination.  Therefore, the appeal was also denied because appellant failed to note its appeal in a timely fashion.

For more information on procurement, acceleration claims, or appeals to the MSBCA, contact Michael Siri at (410) 583-2400 or Siri@Bowie-Jensen.com.

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