# COMAR Title 21 — State Procurement Regulations ## Subtitle 10 — Administrative and Civil Remedies ### Chapter 05 — Maryland State Board of Contract Appeals — General **Authority:** State Finance and Procurement Article, §§12-101 and 15-210—15-223, Annotated Code of Maryland **Administrative History:** Effective date: July 1, 1981 (8:13 Md. R. II-5) **Administrative History:** Regulation .03 repealed and new Regulations .03, .04, and .05 adopted effective October 10, 1983 (10:20 Md. R. 1790) **Administrative History:** Chapter revised effective January 9, 1989 (15:27 Md. R. 3138) **Administrative History:** Regulation .01 amended effective March 13, 1995 (22:5 Md. R. 368) **Administrative History:** Regulation .01 amended as an emergency provision effective September 9, 2021 (48:21 Md. R. 883); emergency status extended to July 3, 2022 (49:3 Md. R. 137); amended permanently effective February 21, 2022 (49:4 Md. R. 302) **Administrative History:** Regulation .02 amended as an emergency provision effective September 9, 2021 (48:21 Md. R. 883); emergency status extended to July 3, 2022 (49:3 Md. RR. 137); amended permanently effective February 21, 2022 (49:4 Md. R. 302) **Administrative History:** Regulation .02H adopted effective December 12, 2024 (51:24 Md. R. 1082) **Administrative History:** Regulation .03A amended effective May 7, 2018 (45:9 Md. R. 463) **Administrative History:** Regulation .04 amended effective May 7, 2018 (45:9 Md. R. 463) **Administrative History:** Regulation .04B amended as an emergency provision effective September 9, 2021 (48:21 Md. R. 883); emergency status extended to July 3, 2022 (49:3 Md. R. 137); amended permanently effective February 21, 2022 (49:4 Md. R. 302) **Administrative History:** Regulation .04B amended effective April 18, 2022 (49:8 Md. R. 500) **Administrative History:** Regulation .05 amended effective August 24, 2020 (47:17 Md. R. 797) **Administrative History:** Regulation .05 amended as an emergency provision effective September 9, 2021 (48:21 Md. R. 883); emergency status extended to July 3, 2022 (49:3 Md. RR. 137); amended permanently effective February 21, 2022 (49:4 Md. R. 302) **Administrative History:** Regulation .05G amended effective April 18, 2022 (49:8 Md. R. 500) **Administrative History:** Regulation .06 adopted effective August 30, 2004 (31:17 Md. R. 1313) **Administrative History:** Regulation .06 amended effective August 24, 2020 (47:17 Md. R. 797) **Administrative History:** Regulation .06B amended effective May 7, 2018 (45:9 Md. R. 463) **Administrative History:** Regulation .06C, D amended as an emergency provision effective September 9, 2021 (48:21 Md. R. 883); emergency status extended to July 3, 2022 (49:3 Md. R. 137); amended permanently effective February 21, 2022 (49:4 Md. R. 302) **Administrative History:** Regulation .06 C, D amended effective December 12, 2024 (51:24 Md. R 1082) **Administrative History:** Regulations .07—.15 adopted as an emergency provision effective September 9, 2021 (48:21 Md. R. 883); emergency status extended to July 3, 2022 (49:3 Md. R. 137); adopted permanently effective February 21, 2022 (49:4 Md. R. 302) #### Regulation .01 Location of the Appeals Board. *COMAR 21.10.05.01* A. Mailing Address and Phone Number. The mailing address and the phone number of the Appeals Board are as follows: B. 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. #### Regulation .02 General Procedures. *COMAR 21.10.05.02* A. Regulations. Appeals referred to the Appeals Board are handled in accordance with the procedural regulations of the Appeals Board. B. 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. C. 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. D. 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. E. 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. F. Pleadings. (1) Caption and Title. Every pleading shall contain a caption setting forth the name of the Appeals Board, the title of the appeal, the number of the State contract or license application involved, and the docket number assigned by the Appeals Board. The caption for an initial pleading shall include the address of appellant. Under the caption shall be placed a statement of the nature of the pleading and the relief, if any, sought. The following illustrates the required format: (2) Paper Size. Pleadings shall be on white standard letter size (8-1/2 x 11 inch) paper, without back or cover. G. Subsequent Appeals and Additional Protests or Claims. (1) If a party files multiple appeals based on the same solicitation or contract, the party filing each subsequent appeal shall promptly notify the Clerk in writing that the appeal is based on the same solicitation or contract as the previously filed appeal or appeals. (2) A party filing an appeal shall promptly notify the Clerk in writing of any additional protests or claims relating to the same solicitation or contract that have been filed with a State agency but are not yet ripe for appeal. H. Stay. Upon motion or on its own initiative, the Appeals Board may stay any appeal as it deems appropriate. #### Regulation .03 Representation. *COMAR 21.10.05.03* A. 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. B. 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. #### Regulation .04 Appearance — General. *COMAR 21.10.05.04* A. How Made. An appearance may be made as follows: (1) By filing a notice of appeal or any pleading; (2) By filing with the Clerk of the Appeals Board a written notice of appearance; (3) Orally, in any proceeding before the Appeals Board. B. 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. #### Regulation .05 Subpoenas. *COMAR 21.10.05.05* A. General. (1) Upon written request of a participant in a proceeding before the Appeals Board, the Appeals Board shall issue a subpoena requiring: (a) Testimony at a deposition; (b) Testimony at a hearing; (c) Production of books, papers, documents, or tangible things designated in the subpoena. (2) In filing a written request for subpoena, a participant in a proceeding shall certify that an effort has been made to comply with §B of this regulation. B. Voluntary Cooperation. Each participant is expected to: (1) Cooperate and make available witnesses and books, papers, documents, or tangible things under its control as requested by another participant without issuance of a subpoena; (2) Secure voluntary attendance of desired third-party witnesses and production of desired third-party books, papers, documents, or tangible things. C. Requests for Subpoenas. (1) A request for a subpoena shall normally be filed at least: (a) 15 days before a scheduled deposition when the attendance of a witness at a deposition is sought; (b) 30 days before a scheduled hearing when the attendance of a witness at the hearing is sought. (2) In its discretion, the Appeals Board may honor requests for subpoenas not made within the time limitations in §C(1)(a) and (b), above. (3) A request for a subpoena shall state the reasonable scope and general relevance of the testimony, and of any books, papers, documents, or tangible things sought to the appeal. D. Request To Quash or Modify. (1) Upon written request by the person subpoenaed or by a participant in the proceeding, made within 10 days after service, the Appeals Board may: (a) Quash or modify the subpoena if it is unreasonable and oppressive or for other good cause shown; or (b) Require the person in whose behalf the subpoena was issued to advance reasonable itinerant costs and/or reasonable cost of producing subpoenaed books, papers, documents, or tangible things. (2) When circumstances require, however, the Appeals Board may act upon a request at any time after a copy of the subpoena has been served upon the other participants in the proceeding. E. 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. F. Service. (1) The Appeals Board will release subpoenas to the requesting participant for service. (2) A subpoena may be served as follows: (a) Personal Delivery. A subpoena may be served at any place by any person who is not a participant in the proceeding and is not younger than 18 years old. A subpoena shall be served by personally delivering a copy to the person named in it. Service of a subpoena upon a party represented by an attorney may be made by sending the subpoena to the attorney. (b) Certified Mail. A subpoena may be served by certified mail, endorsed “Restricted Delivery — Return Receipt Requested”. G. Return on Service. (1) Personal Service. The person serving the subpoena shall file proof of service by affidavit, and the affidavit shall be filed promptly with the Appeals Board and before the time designated for compliance with the subpoena. The affidavit shall set out the name of the person served, the date, and the particular place and manner of service, and shall state whether the person making service is 18 years old or older. Proof of service also may be made by completing and executing the applicable “Return on Service” portion of a duplicate copy of the subpoena. (2) Certified Mail. Upon return through the post office of the return receipt, an affidavit shall be filed with the Appeals Board showing that the subpoena was: (a) Mailed to the person named; and (b) In fact received by the person as evidenced by the person’s signature on the original return receipt, which shall be attached to the affidavit. The affidavit shall be prima facie evidence of service. (3) Proof of service also may be made by completing and executing the applicable “Return on Service” portion of a duplicate copy of the subpoena. H. 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. #### Regulation .06 Motions. *COMAR 21.10.05.06* A. Scope. Unless otherwise provided by this subtitle, this regulation applies to all motions filed with the Appeals Board. B. Unless otherwise provided by this subtitle: (1) A party may move for appropriate relief before or during a hearing. (2) A party shall submit all motions in writing in accordance with §B(3) of this regulation or orally at a hearing. (3) Written motions shall: (a) Be filed as far in advance of the hearing as is practicable or in accordance with the Appeals Board’s Scheduling Order; (b) State concisely the question to be determined; (c) Be accompanied by any necessary supporting documentation and shall not exceed (motions and responses thereto) 25 8.5 x 11 inch pages, typewritten double-spaced, excluding exhibits thereto; and (d) A motion and response thereto shall be filed with a Proposed Order that specifies the relief requested. (4) A response to a written motion shall be filed within 15 working days of the State government after the date the motion was filed, or the day before the date of the hearing, whichever is earlier. The moving party may file a reply to the response to the motion. No further responses will be accepted. The reply shall be filed within 5 working days of the State government after the date the response was filed, or the day before the date of the hearing, whichever is earlier, and shall not exceed ten 8.5 x 11 inch pages, typewritten and double-spaced, excluding exhibits thereto. Any party that desires to supplement its motion or response thereto must seek leave of the Appeals Board. (5) Upon notice to all parties, the Appeals Board may schedule a hearing to consider a written motion. (6) For a written or oral motion, the Appeals Board may: (a) Issue a written decision; (b) State the decision on the record; or (c) State the decision on the record and issue a written opinion providing the basis for its decision at a later date. (7) If a ruling on a motion is not stated on the record or the subject of a written decision, the ruling shall be included in the Appeals Board's proposed or final decision. (8) The filing or pendency of a motion does not alter or extend any time limit. C. Motion to Dismiss. (1) Upon motion, the Appeals Board may issue an Order dismissing an initial pleading for failure to state a claim upon which relief can be granted. A motion regarding the jurisdiction of the Appeals Board shall be filed promptly. A hearing on the motion shall be conducted at the request of either party, unless the Appeals Board determines that its decision on the motion will be deferred pending a hearing on both the merits of the appeal and the motion. The Appeals Board shall have the right at any time to raise the issue of its jurisdiction to proceed with a particular appeal and shall issue an appropriate order affording the parties an opportunity to be heard on the issue of the Appeals Board’s jurisdiction. (2) If, on a motion to dismiss for failure of the initial pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the Appeals Board, the motion shall be treated as one for summary decision and disposed of as provided in §D of this regulation, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by §D of this regulation. D. Motion for Summary Decision. (1) A party may move for summary decision at any time on any appropriate issue in the appeal, as follows: (a) A motion for summary decision, or any opposition thereto, shall be supported by affidavit. (b) An affidavit supporting or opposing a motion for summary decision shall be made under penalties of perjury and upon personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated in the affidavit. (2) The Appeals Board may grant a motion for summary decision if the Appeals Board finds that: (a) After resolving all inferences in favor of the party against whom the motion is asserted, there is no genuine issue of material fact; and (b) A party is entitled to prevail as a matter of law. E. Motion for Judgment. (1) A party may move for judgment on any of the issues in an action at the close of the evidence offered by an opposing party. The moving party shall state with particularity all reasons that the motion should be granted. Objection to the motion for judgment is not necessary. A party does not waive the right to make the motion for judgment by introducing evidence during the presentation of an opposing party's case. (2) If a party moves for judgment at the close of the evidence offered by an opposing party, the Appeals Board may: (a) Proceed to determine the facts and to render judgment against an opposing party; or (b) Decline to render judgment until the close of all evidence. (3) A party who moves for judgment at the close of the evidence offered by an opposing party may offer evidence if the motion is not granted, without having reserved the right to do so and to the same extent as if the motion had not been made. In so doing, the party withdraws the motion. F. 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. #### Regulation .07 Hearings — Where and When Held. *COMAR 21.10.05.07* Hearings ordinarily will be held in the Baltimore, Maryland, metropolitan area, except that, upon request reasonably made and upon good cause shown, the Appeals Board may set the hearing at another location. Hearings will be scheduled, and may be rescheduled, at the discretion of the Appeals Board with due consideration to the regular order of appeals, the requirements of COMAR 21.10.06.12 and COMAR 21.10.07.06, and other pertinent factors. On request or motion by either party and upon good cause shown, the Appeals Board may reschedule the date of a hearing. #### Regulation .08 Notice of Hearings. *COMAR 21.10.05.08* The parties shall be given at least 15 days notice of the time and place set for hearings. In scheduling hearings, the Appeals Board will give due regard to the desires of the parties and to the requirement for the just and inexpensive determination of appeals without unnecessary delay. Notices of hearings shall be promptly acknowledged by the parties. #### Regulation .09 Unexcused Absence of a Party. *COMAR 21.10.05.09* The unexcused absence of a party at the time and place set for a hearing shall not be occasion for delay. In the event of an unexcused absence, the hearing shall proceed, and the appeal will be regarded as submitted by the absent party pursuant to COMAR 21.10.06.11 in appeals concerning contract disputes or pursuant to COMAR 21.10.07.03 in appeals concerning protests. #### Regulation .10 Hearings: Nature, Examination of Witnesses. *COMAR 21.10.05.10* A. 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. B. 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. C. 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. D. 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. #### Regulation .11 Copies of Papers. *COMAR 21.10.05.11* When books, records, papers, or documents have been received in evidence, a true copy of them, or of any part that may be material or relevant, may be substituted during the hearing or at its conclusion. #### Regulation .12 Post Hearing Briefs. *COMAR 21.10.05.12* A. 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. B. 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. C. 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. D. 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. #### Regulation .13 Transcript of Proceedings. *COMAR 21.10.05.13* Testimony and argument at hearings shall be reported verbatim, unless the Appeals Board otherwise orders. Each party shall be responsible both for arranging with the reporter to obtain a copy of the transcript and for the cost thereof. #### Regulation .14 Withdrawal of Exhibits. *COMAR 21.10.05.14* After a decision has become final, the Appeals Board may, upon request and after notice to the other party, permit withdrawal of original exhibits, or any part of them, by the entitled party. The substitution of true copies of exhibits, or any part of them, may be required by the Appeals Board as a condition of granting permission for withdrawal. #### Regulation .15 Sanctions. *COMAR 21.10.05.15* If a party fails or refuses to obey an order issued by the Appeals Board, the Appeals Board may issue whatever order in regard to the failure as it considers necessary to the just and expeditious conduct of the appeal.