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The Seven-Day Time Limit to File a Bid Protest Begins to Run when the Protestor Knew or Should Have Known a Basis for a Bid Protest

The Maryland State Board of Contract Appeals (“MSBCA”) determined that it did not have jurisdiction to hear the Supplemental Bid-Protest Appeal (the “Protest”) because the protestor did not file the Protest in a timely manner.  That is, the protestor did not file the Protest within seven days’ time, as required by COMAR 21.10.02.03B.  MSBCA stated that the “short time period for filing a protest assures a State goal of expediting awards of State contracts.”  Daycon Prods. Co., Inc., MSBCA No. 2947 at 3 (February 26, 2016).  MSBCA additionally noted that “[t]he seven (7) day rule as to whether [a protestor] knew or should have known the basis of the protest is also strictly construed.”  Id.

The MSBCA relied on a previous MSBCA case, Pile Foundation Construction Co., Inc., MSBCA No. 2224 at 13 (2001) for the proposition that a “protest filed after seven (7) days bars the MSBCA jurisdiction.”  In Pile, the MSBCA ruled that the protestor had the opportunity to discover the grounds for a protest but waited and chose not to review information until it was directly delivered to the protestor.  Id. at 14.  The MSBCA reasoned that the protestor should have known the basis for a protest by looking through the bids; therefore, the date for filing a protest began running from the date the information was made available to the protestor.  Id.

Here, the underlying reason for the Protest was that the Procurement Officer did not serve as a member of the Evaluation and Selection Committee (the “Committee”) contrary to the language in § IV.A of the RFP which stated, in relevant part, “The [Committee] shall be comprised of the Procurement Officer and any other individuals that the Procurement Officer may appoint.”  Daycon Prods., MSBCA No. 2947 at 2.  Daycon claimed that its Protest was timely because it did not know that the Procurement Officer did not personally serve on the Committee until the Procurement Officer testified at a hearing and Daycon submitted its Protest within seven days of the hearing.  Id. at 3.  MSBCA, however, decided that Daycon knew or should have known that the Procurement Officer did not serve on the Committee much earlier because Daycon had access to a Sign-In Sheet where all members of the Committee were required to attend and the Procurement Officer’s name was not on the Sign-In Sheet.  Id. at 4.  “When Daycon received the Sign-In Sheet and did not see the title of Procurement Officer with a name on the Sheet, that information put it on notice that it needed to ask a question about the omission.”  Id.

For further information on bid protests or construction law, contact Michael W. Siri at 410.583.2400 or siri@bowie-jensen.com.

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