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Maryland State Board of Contract Appeals Upholds State’s Right to Issue New Solicitation After Bid Opening

This appeal arose out of a solicitation for snow removal services at 14 MVA facilities across the State of Maryland. In the Appeal of McChesney Associates, Inc. 2907 (2015), the Maryland State Board of Contract Appeals considered whether after bid opening but prior to contract award, the State may release all bidders and allow them to rebid on work not previously submitted in its initial bid. During the first round of bidding, various contractors bid on some but not all of the 14 facilities. As a result, the State received a single bid for eight of the facilities and no bids for two facilities.

The State asked the contractors to rebid and to consider bidding on the facilities for which no bids were received. McChesney interpreted this new solicitation as allowing a contractor to modify its previous numbers and to bid on either of the facilities for which no other bid was received. However, it did not believe the revised solicitation allowed a contractor to rebid a facility where a competitor’s numbers had been released after the bid opening. As a result, McChesney was underbid by another contractor on a facility where it had submitted the only bid.

McChesney protested stating that it was prejudiced by the State’s disclosure of its bid to other contractors. McChesney’s argument would have had some weight had it not revised its bid upwards on the facility for which it had previously been the single bidder. The MSBCA rejected the appeal, reasoning that since all bidders were provided an equal opportunity to rebid on all facilities, the State had acted appropriately.

For further information, contact Matt Hjortsberg at 410-583-2400 or at hjortsberg@bowie-jensen.com.

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