Title 21 — Subtitle 10. Administrative and Civil Remedies

In this chapter, the following words have the meanings indicated.

Terms Defined.

An interested party may protest to the appropriate procurement officer against the award or the proposed award of a contract subject to this title, including awards subject to the veteran-owned small business enterprise program set forth in COMAR 21.11.12.

An interested party may not protest:

An unsuccessful bidder or any other person may not protest the award of a contract or contract renewal on the basis of a false certification regarding investments in Iran delivered to a public body pursuant to State Finance and Procurement Article, §17-705, Annotated Code of Maryland. This subsection does not prohibit a public body from filing a protest objecting to the award of a contract or contract renewal on the basis of a false certification.

The protest shall be in writing and addressed to the procurement officer at either:

A protest:

A protest based upon alleged improprieties in a solicitation that are apparent before bid opening or the closing date for receipt of initial proposals shall be filed before bid opening or the closing date for receipt of initial proposals. For procurement by competitive sealed proposals, alleged improprieties that did not exist in the initial solicitation but which are subsequently incorporated in the solicitation shall be filed not later than the next closing date for receipt of proposals following the incorporation.

In cases other than those covered in §A, protests shall be filed not later than 7 days after the basis for protest is known or should have been known, whichever is earlier.

The term “filed” as used in §A or §B means receipt by the procurement officer. Protesters are cautioned that protests should be transmitted or delivered in the manner that shall assure earliest receipt. A protest received by the procurement officer after the time limits prescribed in §A or §B may not be considered.

The name and address of the protester;

Appropriate identification of the procurement, and, if a contract has been awarded, its number if known;

A statement of reasons for the protest; and

Supporting exhibits, evidence, or documents to substantiate the reasons for the protest unless not available within the filing time, in which case the expected availability date shall be indicated.

Time for Decisions. A decision on a protest shall be made by the procurement officer in writing as expeditiously as possible after receiving all relevant, requested information.

The decision of the procurement officer shall be reviewed by the reviewing authority and appropriate legal counsel. The reviewing authority may approve, modify, or disapprove the procurement officer's decision. In disapproving a decision, the reviewing authority may order the procurement officer to effect resolution. Unless the protest is remanded to the procurement officer, the decision of the reviewing authority is the final action by the procurement agency.

The decision shall include:

The procurement officer shall furnish a copy of the decision to the protester and all other interested parties, by certified mail, return receipt requested, or by any other method that provides evidence of its receipt.

Protesters are required to seek resolution of their complaints initially with the procurement agency. A subsequent appeal by an interested party to the Appeals Board shall be filed within 10 days of receipt of notice of the final procurement agency action.

An appeal received by the Appeals Board after the time prescribed in §A of this regulation may not be considered unless it was sent by registered or certified mail not later than the fifth day before the final date for filing an appeal as specified in §A of this regulation. A date affixed by postage meter will not be considered as evidence of the actual mailing date. The only acceptable evidence to establish the date of mailing shall be the U.S. Postal Service postmark on the wrapper or on the original receipt from the U.S. Postal Service. If the postmark is illegible, the appeal shall be deemed to have been filed when received by the Appeals Board.

If the authority to award a contract has not been delegated to a department pursuant to COMAR 21.02.01.04, and a timely protest or appeal has been filed, the contract may be executed only if either:

If the authority to award a contract has been delegated to a department pursuant to COMAR 21.02.01.04, and a timely protest or appeal has been filed, the contract may be executed only if either:

In this chapter, the following words have the meanings indicated.

Terms Defined.

Unless a lesser period is prescribed by law or by contract, a contractor shall file a written notice of a claim relating to a contract with the appropriate procurement officer within 30 days after the basis for the claim is known or should have been known, whichever is earlier.

Contemporaneously with or within 90 days of the filing of a notice of a claim on a construction contract, or 30 days of this filing on a nonconstruction contract, but no later than the date that final payment is made, a contractor shall submit the claim to the appropriate procurement officer. On conditions the procurement officer considers satisfactory to the unit, the procurement officer may extend the time in which a contractor, after timely submitting a notice of claim, must submit a contract claim under a procurement contract for construction. An example of when a procurement officer may grant an extension includes situations in which the procurement officer finds that a contemporaneous or timely cost quantification following the filing of the notice of claim is impossible or impractical. The claim shall be in writing and shall contain:

A notice of claim or a claim that is not filed within the time prescribed in Regulation .02 of this chapter shall be dismissed.

Each procurement contract shall provide notice of the:

A claim may be filed by electronic means only if expressly permitted and in the manner specified by the contract.

Shall investigate and review the facts pertinent to the claim;

May request additional information or substantiation through any appropriate procedure; and

Unless clearly inappropriate, shall seek the advice of the Office of the Attorney General.

The procurement officer may conduct discussions or negotiations regarding the contractor claim and, subject to approval by the reviewing authority and the Office of the Attorney General, and consistent with the budget and applicable law, may settle the claim. The settlement agreement shall be written, shall provide for an appropriate release, and shall be supported by a written determination of the procurement officer that the settlement is in the best interests of the State.

If discussions or negotiations are not conducted or if the contractor claim is not settled, the procurement officer shall prepare a recommended decision on the claim, which normally should contain:

The contractor claim and recommended decision of the procurement officer shall be submitted for review to the reviewing authority and the Office of the Attorney General. Unless the reviewing authority remands the proceeding with instructions to the procurement officer, the reviewing authority shall approve, modify, or disapprove the recommended decision within 180 days after receiving the contract claim or a longer period if the parties agree. In disapproving a recommended decision, the reviewing authority may order the procurement officer to effect a resolution of the claim.

Unless the contractor claim is remanded to the procurement officer, the decision of the reviewing authority, including a decision not to pay a contract claim, is the final action by the procurement agency and shall be furnished to the contractor by certified mail, return receipt requested, or by any other method that provides evidence of receipt. Failure to reach a decision within the time required under §C of this regulation may be deemed, at the option of the contractor, to be a decision not to pay the contract claim that may be appealed in accordance with Regulation .09 of this chapter.

Construction Contracts.

A claim by a procurement agency shall be asserted by written notice to the contractor and the procurement officer explaining:

If appropriate, the procurement officer may conduct discussions or negotiations with the contractor.

If the contractor fails to respond, provides an inadequate response, or denies the claim or the relief sought by the procurement agency in whole or in part, the procurement officer shall proceed in accordance with Regulation .08 of this chapter.

The provisions of §§A, B, and C of this regulation do not apply if notice of claim is not required under the terms of the contract or under the circumstances, in which case the procurement officer shall proceed in accordance with Regulation .08 of this chapter.

Shall investigate and review the facts pertinent to the claim;

May request additional information or substantiation through any appropriate procedure; and

Unless clearly inappropriate, may seek the advice of the Office of the Attorney General.

The contractor shall submit a written response to the procurement agency claim within 30 days of the receipt of the written notice. This period may be extended at the discretion and with the written consent of the procurement officer.

The written response shall state:

The procurement officer may conduct discussions or negotiations regarding the procurement agency claim and, subject to approval by the reviewing authority and the Office of the Attorney General, and consistent with the applicable law, may settle the claim.

The settlement agreement shall be written and shall be based upon a determination of the procurement officer that the settlement is in the best interests of the State.

If the contractor fails to respond, provides an inadequate response, or denies the procurement agency claim or the relief sought by the procurement agency in whole or in part, and the claim is not otherwise settled, the procurement officer shall prepare a recommended decision on the claim, which shall contain:

The procurement agency claim and recommended decision of the procurement officer shall be submitted for review to the reviewing authority and the Office of the Attorney General.

The reviewing authority may approve, modify, or disapprove the recommended decision.

In disapproving a recommended decision, the reviewing authority may order the procurement officer to effect a resolution of the claim.

Unless the procurement agency claim is remanded to the procurement officer, the decision of the reviewing authority:

An appeal to the Appeals Board shall be mailed or otherwise filed within 30 days of the receipt of notice of the final decision. The notice shall indicate that an appeal is intended, shall reference the decision from which the appeal is being taken, and shall identify the contract involved.

An appeal based upon a failure to reach a decision within the period prescribed in Regulation .04E of this chapter may be filed after the expiration of the prescribed period. If a procurement officer's decision is issued after the expiration of the prescribed period but before a notice of appeal is filed with the Appeals Board, §A of this regulation applies to any subsequent appeal.

A copy of the notice of appeal shall be furnished to the procurement officer.

An appeal received by the Appeals Board after the time prescribed in §A or B of this regulation may not be considered unless it was sent by registered or certified mail not later than the fifth day before the final date for filing an appeal as specified in §A or B of this regulation. A date affixed by postage meter will not be considered as evidence of the actual mailing date. The only acceptable evidence to establish the date of mailing shall be the U.S. Postal Service postmark on the wrapper or on the original receipt from the U.S. Postal Service. If the postmark is illegible, the appeal shall be deemed to have been filed when received by the Appeals Board.

Mailing Address and Phone Number. The mailing address and the phone number of the Appeals Board are as follows:

Electronic Filing Address. Documents may be filed electronically by sending them via email to efile.msbca@maryland.gov. The filing party is responsible for confirming receipt.

Regulations. Appeals referred to the Appeals Board are handled in accordance with the procedural regulations of the Appeals Board.

Administration and Interpretation of Regulations. The regulations will be administered and interpreted so as to ensure a just and inexpensive determination of appeals without unnecessary delay.

Preliminary Procedures. Preliminary procedures are available to encourage full disclosure of relevant and material facts and to discourage unwarranted surprise. Participants in proceedings before the Appeals Board are encouraged to use these procedures in a voluntary, informal manner.

Ex Parte Communications. A member of the Appeals Board or of the Appeals Board's staff may not entertain, nor may any person directly or indirectly involved in an appeal submit to the Appeals Board or the Appeals Board's staff, off the record, any evidence, explanation, analysis, or advice, whether written or oral, regarding any matter at issue in an appeal. This provision does not apply to consultation among Appeals Board members or to ex parte communications concerning the Appeals Board's administrative functions or procedures.

Representation by Counsel. Whenever reference is made to contractor, protester, appellant, administrator, respondent, interested party, or parties, this shall include respective counsel for the parties, as soon as appropriate notices of appearance have been filed with the Appeals Board.

Pleadings.

Subsequent Appeals and Additional Protests or Claims.

Stay. Upon motion or on its own initiative, the Appeals Board may stay any appeal as it deems appropriate.

General. An individual may appear before the Appeals Board in person, or may be represented by an attorney at law licensed in Maryland. Corporations, partnerships, joint ventures, LLCs, or other entities shall be represented by an attorney at law licensed in Maryland. The State shall be represented by an attorney designated by the Office of the Attorney General who shall be licensed in Maryland.

Out-of-State Attorney. An attorney specially admitted may act as co-counsel for a participant in a proceeding who also is represented by an attorney admitted to practice in this State. The specially admitted attorney may, upon motion, be permitted to participate in Appeals Board proceedings without being accompanied by Maryland counsel.

How Made. An appearance may be made as follows:

Appearance of Out-of-State Attorney. An out-of-State attorney may enter the out-of-State attorney’s appearance and participate in an action only after having been admitted in accordance with Md. Rule 19-217 (Special Admission of Out-of-State Attorneys Pro Hoc Vice). Once so admitted, the attorney’s appearance is limited by the restriction of that Rule and Regulation .03 of this chapter.

General.

Voluntary Cooperation. Each participant is expected to:

Requests for Subpoenas.

Request To Quash or Modify.

Form; Issuance. Each subpoena shall state the name of the Appeals Board and the title of the appeal, and shall command each person to whom it is directed to attend and give testimony, and if appropriate, to produce specified books, papers, documents, or tangible things, at a time and place therein specified. In issuing a subpoena to a requesting participant, the Appeals Board member assigned to the appeal involved, or another Appeals Board member as assigned by the Chairman, shall sign the subpoena. Blank subpoena forms may not be signed by an Appeals Board member.

Service.

Return on Service.

Refusal to Obey a Subpoena. In the case of a refusal to obey a subpoena, the Appeals Board may invoke the aid of a court of competent jurisdiction, and the court may order that person to obey the subpoena or order. The party seeking enforcement shall prepare and submit to the Appeals Board a proposed petition for consideration. The party seeking enforcement shall be responsible for filing the Petition with the court once it has been approved and signed by the Appeals Board and shall pay any applicable court costs.

Scope. Unless otherwise provided by this subtitle, this regulation applies to all motions filed with the Appeals Board.

Unless otherwise provided by this subtitle:

Motion to Dismiss.

Motion for Summary Decision.

Motion for Judgment.

Motion for Reconsideration. A motion for reconsideration may only be filed on the grounds that the decision of the Appeals Board was in error as a result of fraud, surprise, mistake, or inadvertence and shall be filed within 15 days for appeals of protests and within 30 days for appeals of contract claims from the date the party filing the motion received a copy of the decision of the Appeals Board. A response to a motion for reconsideration shall be filed within 7 working days of the State government after the date the motion was filed. The moving party may not file a reply to a response to a motion for reconsideration. The Appeals Board may also, at its own discretion, alter or amend its decision or order if it determines that an error has occurred. For purposes of judicial review as provided for under State Finance and Procurement Article, §15-223, and State Government Article, §10-222, Annotated Code of Maryland, and Title 7, Chapter 200 of the Md. Rules, an action of the Appeals Board shall be deemed final 30 days from the date of receipt by the parties of the Appeals Board’s decision under this regulation or, in the event of a motion for reconsideration, from the date of receipt by the parties of the Appeals Board's ruling thereon.

Nature of Hearings. Hearings shall be as informal as may be reasonable and appropriate under the circumstances. Appellant and respondent may offer at a hearing on the merits such relevant evidence as they deem appropriate, subject, however, to the sound discretion of the presiding member in supervising the extent and manner of presentation of this evidence, the guidelines set forth in State Government Article, Title 10, Subtitle 2, Annotated Code of Maryland, and applicable case law. In general, admissibility will hinge on relevancy and materiality. Letters or their copies, affidavits, or other evidence that may not be admissible under the Maryland Rules of Evidence may be admitted in the discretion of the presiding member. The weight to be attached to evidence presented in any particular form will be within the discretion of the Appeals Board, taking into consideration all the circumstances of the particular appeal. Stipulations of fact agreed upon by the parties may be regarded and used as evidence at the hearing. The parties may stipulate the testimony that would be given by a witness if the witness were present. The Appeals Board may in any appeal require evidence in addition to that offered by the parties.

Examination of Witnesses. Witnesses before the Appeals Board shall be examined orally under oath or affirmation, unless the facts are stipulated or the presiding member shall otherwise order.

Exchange of Exhibits. The parties are required, whenever possible, to exchange exhibits in advance of the hearing. When this is not possible, exhibits shall be exchanged so as to avoid both delay to the hearing and unwarranted surprise.

Voluntary Cooperation. Each party is expected to cooperate and make available witnesses and books, papers, documents, or tangible things under its control as needed for its own appeal or as requested by the other party, without issuance of an order, and to secure voluntary attendance of desired third-party books, papers, documents, or tangible things, whenever possible.

General. Briefs shall be compact, concise, logically arranged, and free from burdensome, irrelevant, immaterial, and scandalous matter. Briefs are required to contain a table of contents and tables of statutes, regulations, and cases cited.

Time of Submittal. Briefs shall be submitted at times and upon terms agreed upon by the parties and the presiding member, or as otherwise determined by the presiding member at the conclusion of the hearing.

Length of Briefs. Except by permission of the Appeals Board on motion, principal briefs shall not exceed 25 8.5" x 11" inch pages, typewritten double-spaced, exclusive of any table of contents and tables of statutes, regulations, and cases cited.

Number of Copies Required for Submittal. For each brief, one original plus three copies and one electronic copy in a format specified by the Clerk shall be submitted to the Appeals Board.

In this chapter, the following terms have the meanings indicated.

Terms Defined.

How Taken. Notice of an appeal shall be in writing, and the original, together with two copies, shall be mailed to or filed with the Appeals Board within the time specified in the contract or otherwise allowed by law or regulation. A copy shall be furnished to the procurement officer from whose decision the appeal is taken.

Notice of Appeal. A notice of appeal shall indicate that an appeal is intended, the amount in dispute, if known, and shall identify the contract (by number), the State agency whose contract is the subject of the dispute, and the procurement officer’s decision from which the appeal is taken. The notice of appeal shall be signed personally by the appellant (the contractor making the appeal), or by an officer of the appellant corporation or member of the appellant firm, or by the appellant’s duly authorized representative or attorney. The complaint referred to in Regulation .06 may be filed with the notice of appeal, or the appellant may designate the notice of appeal as a complaint, if it otherwise fulfills the requirements of a complaint.

When a notice of appeal in any form has been received by the Appeals Board, it shall be docketed promptly. A notice of docketing shall be forwarded to both parties and a copy of these regulations will be furnished to the appellant upon request.

The Board may consolidate appeals when the parties agree via joint motion or at its own discretion.

Duties of Procurement Officer. Within 30 days of notice from the Appeals Board that an appeal has been docketed, the procurement officer shall assemble and transmit to the Appeals Board, through the Office of the Attorney General, documents relevant to the appeal including:

Duties of the Appellant. Within 30 days after receipt of a copy of the appeal file assembled by the procurement officer, the appellant may supplement the file by transmitting to the Appeals Board any documents not contained in the file that it considers relevant to the appeal, and furnishing two copies of these documents to the trial attorney designated by the Office of the Attorney General.

Organization of Appeal File. Documents in the appeal file may be originals or legible facsimile or authenticated copies, and shall be arranged in chronological order when practicable, numbered sequentially, tabbed and indexed to identify the contents of the file.

Lengthy Documents. The Appeals Board may waive the requirement of furnishing to the other party copies of bulky, lengthy, or out-of-size documents when a party has shown that doing so would impose an undue burden. At the time a party files with the Appeals Board a document for which a waiver has been granted, the filing party shall provide an electronic copy of the document in a format specified by the Clerk of the Appeal Board and shall notify the other party that this document or a copy is available for inspection at the offices of the Appeals Board or of the filing party.

Status of Documents in Appeal File. Documents contained in the appeal file are considered, without further action by the parties, as part of the record upon which the Appeals Board shall render its decision, unless a party objects to the consideration of a particular document before the hearing, or before settling the record if there is no hearing on the appeal. If objection to a document is made, the Appeals Board will rule upon its admissibility into the record as evidence in accordance with Regulation .13 of this chapter and COMAR 21.10.05.10.

Complaint. Within 30 days after receipt of notice of the docketing of the appeal, the appellant shall file with the Appeals Board an original and three copies of a complaint setting forth simple, concise, and direct statements of each of its claims alleging the basis, with appropriate reference to contract provisions, for each claim and the dollar amount claimed. This pleading shall fulfill the generally recognized requirements of a complaint.

Answer. Within 30 days from receipt of the complaint, the respondent shall prepare and file with the Appeals Board an original and three copies of an answer, setting forth simple, concise, and direct statements of the respondent's defenses to each claim asserted by appellant. This pleading shall fulfill the generally recognized requirements of an answer, and shall set forth any affirmative defenses available.

Whether the appeal is to be submitted pursuant to Regulation .11 of this chapter or heard pursuant to Regulation .08 of this chapter, the Appeals Board may, upon its own initiative or upon the request of either party, arrange a telephone conference or call upon the parties to appear before a member of the Appeals Board for a conference to consider:

If a Prehearing Conference is scheduled, the parties shall submit a Prehearing Conference Report not less than 7 days prior to the Prehearing Conference, and a copy shall be provided to the opposing party or parties. The Prehearing Conference Report shall follow the form and include the information set forth in MD Rule 2-504.2.

The results of the conference shall be reduced to writing by the Appeals Board member, and this writing shall constitute part of the record.

These procedures are available solely at the election of the appellant.

Election to Use “Small Claims” Procedures.

“Small Claims” Procedure.

The record upon which the Appeals Board's decision is rendered consists of the documents considered under Regulations .04 and .12 of this chapter and, to the extent the following items have been filed, pleadings, prehearing and conference memoranda or orders, prehearing briefs, depositions or interrogatories received in evidence, admissions, stipulations, transcripts of conferences and hearings, hearing exhibits, post hearing briefs, exceptions taken and arguments made pursuant to any proposed decision, and documents that the Appeals Board has specifically designated be made a part of the record. The record will be available at all reasonable times for inspection by the parties at the office of the Appeals Board.

Except as the Appeals Board may otherwise order, no proof may be received in evidence after completion of an oral hearing, or, in appeals submitted on the record, after notification by the Appeals Board that the appeal is ready for decision.

The weight to be attached to any evidence of record rests within the sound discretion of the Appeals Board. The Appeals Board may require either party, with appropriate notice to the other party, to submit additional evidence on a matter relevant to the appeal.

Scope of Discovery. In general, unless otherwise ordered by the Appeals Board, parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the appeal:

Hearing Preparation — Materials.

Hearing Preparation — Experts. Discovery of facts known and opinions held by experts, otherwise discoverable under the provision of §A of this regulation and acquired or developed in anticipation of litigation or for trial, may be obtained only as follows:

When Depositions Permitted. After an appeal has been docketed and a complaint filed, the parties may mutually agree to, or the Appeals Board may, in response to a motion to compel, order the taking of testimony of any person by deposition upon oral examination or written interrogatories before an officer authorized to administer oaths at the place of examination, for the purpose of discovery, or for use as evidence in the appeal, or for both purposes.

Designation of Person to Testify. A party, by written notice to opposing counsel, may name as the deponent a public or private corporation, a partnership, an association, an LLC, or other entity or government agency and describe with reasonable particularity the matters on which examination is requested. In that event, the organization so named shall designate one or more officers, directors, or managing agents, or other persons who consent to testify on its behalf, and may set forth, for each person designated, the matters on which the person will testify.

Orders on Depositions. The time, place, and manner of taking depositions shall be as mutually agreed by the parties, or failing agreement, governed by order of the Appeals Board.

Expenses. Except as provided for in §C(3) of this regulation, each party shall bear its own expenses associated with the taking of any deposition.

Protective Orders. The Appeals Board may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense. Those orders may include limitations on the scope, method, time, and place for discovery, and provisions for protecting the secrecy of confidential information or documents.

Deposition — Use; General.

Interrogatories to Parties.

Admission of Facts. After an appeal has been filed with the Appeals Board, a party may serve upon the other party a request for the admission of specified facts. Within 30 days after service, or such other time period as agreed by the parties, the party served shall answer each requested fact or file objections. The factual propositions set out in the request shall be deemed admitted upon the failure of a party to respond to the request for admission.

Production and Inspection of Documents. After an appeal has been filed with the Appeals Board, a party may serve upon the other party a request for production, inspection, and copying of any documents or objects not privileged, which reasonably may lead to the discovery of admissible evidence. Within 30 days after service, or such other time period as agreed by the parties, the party served shall produce for inspection and copying the documents requested or set forth appropriate grounds for objection.

When Required. In those appeals (except those submitted pursuant to Regulations .11 and .12 of this chapter) where a majority of the Appeals Board members who are to render a decision have not heard the evidence adduced at hearing, the decision of the Appeals Board, if adverse to the appellant, may not be issued until a proposed decision, including findings of fact and conclusions of law, has been served upon the parties. Within 30 days from receipt of this proposed decision, either party may file written exceptions and request oral argument before a majority of the Appeals Board members who are to render the decision. A copy of the exceptions or request for oral argument, or both, shall be served on opposing counsel who shall have 15 days from receipt to respond.

Form of Written Exceptions to Proposed Decision. Written exceptions shall specifically set forth the proposed finding of fact or conclusion of law being excepted to and those portions of the record or applicable law, or both, which are contrary to the proposed finding or conclusion of law specified.

Receipt of Further Evidence. Except as the Appeals Board may otherwise order, no proof may be received in evidence in support of any exception taken to the proposed decision.

Provision for Oral Argument. Requests by either party to appear and offer oral argument to a majority of the Appeals Board members who will issue the formal decision will be granted as a matter of right, provided that a written request is filed within 30 days from the date of receipt of the proposed decision. The parties thereafter shall be given notice of the time and place set for the argument.

The Appeals Board may award to a contractor the reasonable cost of filing and pursuing a claim, including reasonable attorney’s fees, if the Appeals Board finds that the conduct of the unit in processing a contract claim is in bad faith, without substantial justification, or in violation of law. Any allegations of bad faith, lack of substantial justification, or violation of law must be plead with particularity during the course of the proceedings before the Appeals Board.

A request for award of costs incurred by the contractor in filing and pursuing a claim shall be made by written motion filed within 15 calendar days of the decision by the Appeals Board finding that the conduct of the unit in processing a contract claim is in bad faith, without substantial justification, or in violation of law. The motion shall specify all costs being requested, shall be substantiated by documented evidence, and the contractor shall certify under oath or affirmation its costs in filing and pursuing a claim. Upon request of a party or on its own initiative, the Appeals Board may conduct a hearing to determine the reasonableness of the costs and fees claimed.

In this chapter, the following words have the meanings indicated.

Terms Defined.

An interested party may appeal a final action of a State agency taken pursuant to COMAR 21.10.02.10.

The notice of appeal shall be in writing and addressed to the Appeals Board.

The notice of appeal shall:

The protester shall attach to the notice of appeal a copy of the State agency final action from which the appeal is being taken and any supporting exhibits relied upon. If all exhibits are not available at the time of filing, those documents that are unavailable shall be listed, and an expected date of availability or, if unknown, an explanation as to why they are unavailable shall be provided.

Formal briefs or other technical forms of pleading or motion are not required, but the notice of appeal and other submissions should be concise, logically arranged, and direct.

The Board may consolidate appeals when the parties agree via joint motion or at its own discretion.

The Appeals Boards shall notify the State agency by telephone, email, or otherwise in writing within 1 day of the receipt of an appeal, requesting the State agency to give notice of the appeal to the awardee if award has been made or, if no award has been made, to all bidders, offerors, or applicants who appear to have a substantial and reasonable prospect of receiving an award if the appeal is denied. The State agency also shall be requested to furnish copies of the appeal documents to these parties with instructions for them to communicate further directly with the Appeals Board.

Material submitted by a protester may not be withheld from any interested party outside the State government or from any State agency which may be involved in the appeal except to the extent that the withholding of information is permitted or required by law. If the protester considers that its notice of appeal contains material that should be withheld, a statement advising of this fact shall be affixed to the front page of the notice of appeal and the alleged proprietary information shall be so identified wherever it appears.

The Appeals Board shall request the Office of the Attorney General, in conjunction with the State agency, to submit a complete report on the actions taken by the agency with regard to the solicitation or application involved in the appeal within 15 working days, or, for good cause shown, at such later time as the Appeals Board may determine, and to furnish a copy of the report to the protester and other interested parties. The report shall include:

Upon the filing of a preliminary motion to dismiss an appeal on the grounds that the Appeals Board lacks jurisdiction to hear the appeal, the Board may stay the time for filing the agency report at the request of the State agency or at its own discretion.

Comments on the agency report shall be filed with the Appeals Board within 10 days after receipt of the report, with a copy to the Office of the Attorney General on behalf of the State agency that furnished the report, and to any interested parties. Any rebuttal to these comments by a protester or interested party shall be filed with the Appeals Board within 5 days after receipt of those comments to which rebuttal is directed, with a copy to the Office of the Attorney General on behalf of the State agency that furnished the report, and to any interested parties. The State agency may also submit rebuttal if filed within 5 days after receipt by the State agency of the comments to which rebuttal is directed.

The failure of a protester or any interested party to comply with the time limits stated in this regulation may result in resolution of the appeal without consideration of the comments untimely filed.

Discovery shall be limited to requests for production of documents unless the Appeals Board finds that extraordinary circumstances require limited additional discovery to avoid either substantial unfairness or prejudice.

The Appeals Board, upon request, shall make available to any interested party information bearing on the substance of the appeal that has been submitted by other interested parties or the State agency, except to the extent that withholding of information is permitted or required by law or regulation. Any comments shall be submitted within 10 days.

A hearing on the merits of the appeal shall be conducted at the request of the protester, any other interested party, the State agency, or by order of the Appeals Board. Request for a hearing shall be made before the expiration of the time period allowed for filing comments on the State agency report. Except in unusual circumstances, requests for a hearing received after this time will not be honored.

Hearings normally will be held after expiration of the period allowed for filing comments on the agency report. All interested parties shall be notified as to the time and place of the hearing and shall be permitted to participate.

The Appeals Board may award an interested party the reasonable costs of filing and pursuing a protest, including reasonable attorney’s fees, if:

A request for award of costs incurred by the interested party in filing and pursuing a protest shall be made by written motion filed within 15 calendar days of the decision by the Appeals Board finding a violation of law or regulation. The motion shall specify all costs being requested, shall be sustained by documented evidence, and the interested party shall certify under oath or affirmation its costs in filing and pursuing a protest. Upon request of a party or on its own initiative, the Appeals Board may conduct a hearing to determine the reasonableness of the cost and fees claimed.

In this chapter, the following terms have the meanings indicated.

Terms Defined.

A contractor who receives a progress payment or a final payment shall pay a subcontractor or supplier an undisputed amount to which the subcontractor or supplier is entitled within 10 calendar days of receiving the payment.

If a contractor withholds payment from a subcontractor or supplier within the time period in which the payment normally would be made, the contractor shall:

Written Notice of Nonpayment.

Within 2 business days of receipt of written notice from a subcontractor or supplier, a representative of the unit designated by the procurement officer shall verbally contact the contractor that withheld payment to ascertain whether the amount withheld is an undisputed amount.

If the representative of the unit determines that a part or all of the amount withheld is an undisputed amount, the representative of the unit shall instruct the contractor that withheld payment to pay the subcontractor or supplier the undisputed amount within 3 business days. The instruction shall be confirmed in writing.

The representative of the unit shall verbally communicate to the subcontractor or supplier the results of discussions with the contractor that withheld payment.

If the contractor fails to pay the subcontractor or supplier the undisputed amount within the time instructed to do so under Regulation .04B of this chapter, the subcontractor or supplier may report the nonpayment in writing to the procurement officer.

Meeting.

If the representative of the unit determines that the contractor is delinquent in payment of an undisputed amount to the subcontractor or supplier, the representative may order that further progress payments to the contractor that withheld payment shall be withheld until the subcontractor or supplier is paid.

If payment is not paid to the subcontractor or supplier within 7 business days after the representative of the unit determines that the contractor is delinquent in paying the subcontractor or supplier under §A of this regulation, the representative shall schedule a second meeting to address the dispute:

If, at the completion of the second meeting, the representative of the unit determines that the contractor continues to be delinquent in payments owed to the subcontractor or supplier, the representative:

A penalty may not be imposed under §C(3) of this regulation for any period that the representative of the unit determines the subcontractor or supplier was not diligent in reporting nonpayment to the procurement officer.

A prime contractor and each contractor to whom an instruction or order is directed under this regulation shall comply with the instruction or order.

A contractor or a subcontractor or supplier may appeal a decision under Regulation .06C of this chapter to the procurement officer.

The contractor shall comply with the procurement officer's decision.

An act, failure to act, or decision of a procurement officer or a representative of a unit, concerning a payment dispute between a contractor and subcontractor or supplier under this chapter, may not:

A decision of a procurement officer or a representative of the unit designated by the procurement officer under this chapter is not subject to judicial review or the provisions of COMAR 21.10.04.