Chapter 07. Maryland State Board of Contract Appeals — Procedures for Appealing Protests

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.