Livingston Procurement - Maryland bid protest lawyer

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Maryland Department of Transportation Cases
SHA | MTA | MAA | MdTA | MPA
 

 
Here are actual Maryland Department of Transportation cases that Scott Livingston represented:
 
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SHA - State Highway Administration
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TITLE: PDI-Sheetz Construction, Inc.
MSBCA #: 2757
YEAR: 2011
CASE TYPE: Bid Protest
http://www.msbca.state.md.us/decisions/2011/pdf/pdi_2757.pdf

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TITLE: Concrete General, Inc
MSBCA #: 2587
YEAR: 2008
CASE TYPE: Bid Protest
ISSUE: Jurisdiction - Rejection of All Bids
HEADNOTE: Jurisdiction - MSBCA may not review issues never raised before the State's procurement officer because there is no agency decision from which to take an appeal.
Jurisdiction - MSBCA has no jurisdiction over MBE issues.
Rejection of All Bids - Agency has broad discretion to reject all bids when it is in the State's best interest to do so.
Rejection of All Bids - Procurement ambiguity is sufficient to permit the State to reject all bids.
Rejection of All Bids - Agency's determination to reject all bids will not be reversed in the absence of proof that the determination was arbitrary, capricious, made in bad faith or fraudulent.
2587ConcreteGeneral.pdf

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TITLE: C. J. Miller, LLC
MSBCA #: 2556
YEAR: 2006
CASE TYPE: Bid Protest
ISSUE: Minority Business Enterprise - Jurisdiction -
HEADNOTE: Jurisdiction - Pursuant to COMAR 21.11.03.14, acts or omissions by a procurement agency regarding Minority Business Enterprise (MBE) issues may not be appealed, and the MSBCA is, therefore, without jurisdiction to hear such appeals.
2556cjmiller.pdf

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TITLE: David A. Bramble, Inc.
MSBCA #: 2550
YEAR: 2006
CASE TYPE: Bid Protest
ISSUE: Bid Responsiveness - Minor Irregularities
HEADNOTE: When bid requirements prescribe that the invitation for bid (IFB) must be attached with a responsive bid, the failure of a low bidder to do so renders such a bid irregular but not unresponsive. Particularly where it appears that the low bidder acknowledges full understanding of contract obligations and binds itself to an enforceable offer, the bid is responsive because the bid defect constitutes only a minor irregularity.
2550bramble.pdf

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TITLE: L.S. Lee, LLC
MSBCA #: 2463 & 2468
YEAR: 2005
CASE TYPE: Bid Protest
ISSUE: Signing of Bids
HEADNOTE: The failure to sign a bid may be waived as a minor informality pursuant to COMAR 21.06.02.04 if the bid is accompanied by other material clearly indicating the bidder's intent to be bound. The materials submitted with the bid in this case did not permit the State to waive the failure to sign the bid.
http://www.msbca.state.md.us/decisions/2005/pdf/2463lee.pdf

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TITLE: American Paving Corporation
MSBCA #: 2498
YEAR: 2005
CASE TYPE: Bid Protest
ISSUE: Bid Bond Defect
HEADNOTE: Where a bid bond containing a defect accompanies a bid, the bid may nevertheless be accepted if the Procurement Officer reasonably determines that the bid bond is enforceable by the State against the surety.
http://www.msbca.state.md.us/decisions/2005/pdf/2498amer.pdf

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TITLE: Gray & Son, Inc
MSBCA #: 2409
YEAR: 2005
CASE TYPE: Contract Claim
ISSUE: Contract Interpretation
HEADNOTE: In interpreting bid documents all provisions will be read together and interpreted as a whole.
http://www.msbca.state.md.us/decisions/2005/pdf/2409gray.pdf

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TITLE: Pile Foundation Construction Co., Inc.
MSBCA #: 2238
YEAR: 2001
CASE TYPE: Bid Protest
ISSUE: Responsibility - Discretionary Determination
HEADNOTE: The rejection of an unbalanced bid is tied to the agency's discretionary determination of responsibility.
http://www.msbca.state.md.us/decisions/pdf/2238pile.pdf

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TITLE: Pile Foundation Construction Co., Inc.
MSBCA #: 2224
YEAR: 2001
CASE TYPE: Bid Protest
ISSUE: Bid Protest - Timeliness
HEADNOTE: A protest filed more than seven (7) days after a protestor knew or should have known of the grounds for protest is late and the Board is without jurisdiction to hear the appeal from the denial of the protest.

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TITLE: David A. Bramble, Inc.
MSBCA #: 1853
YEAR: 1996
CASE TYPE: Contract Claim
ISSUE: Contract Interpretation
HEADNOTE: In interpreting bid documents all provisions will be read together and interpreted as a whole.
5_389Bramble1853.pdf

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TITLE: Genstar Stone Paving Products Company
MSBCA #:1532
YEAR: 1993
CASE TYPE: Contract Claim
ISSUE: Equitable Adjustment - Variation in Estimated Quantities
HEADNOTE: The "ordinary application" of the estimated quantity clause will determine entitlement to an equitable adjustment except where such application will result in an "excessive profit" (or loss) for the overrun item.
4_335GenstarPaving1532.pdf

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TITLE: Genstar Stone Paving Products Company
MSBCA #: 1532
YEAR: 1991
CASE TYPE: Contract Claim
ISSUE: Equitable Adjustment - Variation in Estimated Quantities
HEADNOTE: The language of the variation in estimated quantities clause of a contract requires the party moving for an equitable adjustment to show that there has been an increase (or decrease) in costs for the quantity above 125% of the estimated quantity through comparison of actual costs before and after the 125% threshold. Comparison of the bid price with costs above 125% of the estimate is not appropriate since there is no requirement in competitive bidding that the bid price for an estimated quantity item reflect the actual cost of such item.
3_273Genstar15321991.pdf

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TITLE: Dewey Jordan
MSBCA #: 1304
YEAR: 1987
CASE TYPE: Contract Claim
ISSUE: Burden of Proof, Burden of Proof - Procurement Officer's Discretion
HEADNOTE: Burden of Proof - The State generally has the burden of proof in an appeal, both as to the issues of entitlement and quantum, when a credit is taken against Appellant's contract price pursuant to a contract provision allowing for a credit when the State accepts nonconforming construction materials. However, the Appellant has the burden of proof where it disputes the method utilized by the procurement officer to calculate the credit and there is no dispute to the State's entitlement or the amount of the credit based on the State's method of calculation. This is a challenge of the procurement officer's exercise of discretion which will not be disturbed unless shown to be fraudulent or so arbitrary as to constitute a breach of trust.

Burden of Proof - Procurement Officer's Discretion - Where the contract grants authority to the procurement officer to "provide for an appropriate adjustment" and Appellant suggests that its averaging method of calculating the adjustment is more equitable to the Appellant than the straight line method used by the procurement officer, which is more favorable to the State, the Appellant's burden of proof to establish that the procurement officer's exercise of discretion was fraudulent or so arbitrary as to constitute a breach of trust has not been met.
2_147DeweyJordan1304.pdf

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TITLE: The Driggs Corporation
MSBCA #: 1243
YEAR: 1985
CASE TYPE: Bid Protest
ISSUE: Mistake in Bids - Discovered Before Award
HEADNOTE: Where the invitation for bids provides that the unit price governs discrepancies between a unit price and its extension, such provision must be read in harmony with COMAR 21.05.02.12 (and its nearly identical counterpart in the IFB) permitting correction only if both the mistake and the intended bid price are clearly evident on the face of the bid document. The procurement officer properly denied correction despite the bidders confirmation that its stated unit price was intended where the bid documents reflected that either the unit price or the extended price could reasonably have been intended.
1_106TheDriggs1243.pdf

 
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MTA - Maryland Transit Administration
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TITLE: Yellow Transportation
MSBCA #: 2374, 2380, 2381, 2382, 2387
YEAR: 2006
CASE TYPE: Bid Protest
ISSUE: Bid Protest Costs
HEADNOTE: Certain costs are awardable in successful bid protest cases (COMAR 21.10.07.09A) when the Board sustains an appeal based on a violation of law or regulation by the unit conducting the procurement.
http://www.msbca.state.md.us/decisions/2005/pdf/2374yellow_transportation.pdf

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TITLE: Yellow Transportation
MSBCA #: 2374, 2380, 2381, 2382, 2387
YEAR: 2004
CASE TYPE: Bid Protest
ISSUE: Bias
HEADNOTE: Repeated contacts between an offeror's representative and members of an evaluation committee (e-mail communications memorialized in writing) provided substantive hard facts and evidence of bias in favor of that offeror by the evaluation committee members involved in the communications. This bias tainted the evaluation process, resulting in an award that was unreasonable and violative of Maryland procurement laws and regulations.
http://www.msbca.state.md.us/decisions/pdf/2389yellow.pdf

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TITLE: Kennedy Personnel Services
MSBCA #: 2425
YEAR: 2004
CASE TYPE: Bid Protest
ISSUE: Rejection of Bids
HEADNOTE: Rejection of all bids and resolicitation is permissible where the procurement agency reasonably determines that it was fiscally advantageous or otherwise in the best interest of the State to do so.
http://www.msbca.state.md.us/decisions/pdf/2425kennedy.pdf

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TITLE: Herzog Contracting Corporation
MSBCA #: 2245
YEAR: 2001
CASE TYPE: Bid Protest
ISSUE: Responsiveness
HEADNOTE: Where a bidder submitted one bid for the work required by the IFB and included additional costs for contingent items, the bid was deemed to be qualified and therefore non-responsive.
http://www.msbca.state.md.us/decisions/pdf/2245herzogcontracting.pdf

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TITLE: Eyre Bus Service, Inc.
MSBCA #: 1798
YEAR: 1994
CASE TYPE: Bid Protest
ISSUE: Specifications - Strict Compliance - Two Step Procurement
HEADNOTE: A step one proposal submitted in response to the IFB requirements for a two step (multi-step) procurement need not comply with all specifications details as in a competitive sealed bid. However, the basic or essential requirements of the specifications must be complied with and such requirements may not be ignored or downgraded to the status of mere expectations. In determining whether a step one response is acceptable, the Procurement Officer is vested with considerable discretion and his determination will not be overturned unless unreasonable.
4_360EyreBus1798.pdf

 
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MAA - Maryland Aviation Adminstration


TITLE: CSCI, LLC
MSBCA #: 2526
YEAR: 2006
CASE TYPE: Bid Protest
ISSUE: Bid Protest - Form
HEADNOTE: Under COMAR 21.03.05.02A, if a solicitation does not specify that electronic transactions are permitted or required, bidders or offerors may not use electronic means for any part of the procurement, including the filing of a bid protest. Therefore, a bid protest sent by facsimile may not be considered unless the solicitation authorizes protests to be sent by facsimile.
http://www.msbca.state.md.us/decisions/2005/pdf/2526csci.pdf

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TITLE: James F. Knott Construction Co., Inc.
MSBCA #: 2437
YEAR: 2004
CASE TYPE: Bid Protest
ISSUE: Minority Business Enterprise - Bid Protest - Jurisdiction
HEADNOTE: The Board of Contract Appeals does not have jurisdiction to decide a dispute that requires the Board to determine the appropriateness of alleged acts or omissions by a procurement agency under COMAR 21.11.03 Minority Business Enterprise Policies.
http://www.msbca.state.md.us/decisions/pdf/2437knott.pdf

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TITLE: P. Flanigan & Sons, Inc.
MSBCA #: 2121
YEAR: 1999
CASE TYPE: Bid Protest
ISSUE: Minor Informality - How Determined
HEADNOTE: In order to determine whether a defect in a bid or proposal is waivable as a minor informality, the procurement officer must first determine that the defect is immaterial as defined in COMAR 21.06.02.04B, i.e., the significance of the defect as to price, quantity, quality, or delivery is trivial or negligible when contrasted with the total cost or scope of the procurement.
http://www.msbca.state.md.us/decisions/pdf/pflanigan&sons.pdf

 
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MdTA - Maryland Transportation Authority
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TITLE: Daisy Concrete, Inc. of Maryland
MSBCA #: 2338
YEAR: 2003
CASE TYPE: Bid Protest
ISSUE: Signing of Bids
HEADNOTE: The failure to sign a bid may be waived as a minor informality pursuant to COMAR 21.06.02.04 if the bid is accompanied by other material clearly indicating the bidder's intent to be bound.
http://www.msbca.state.md.us/decisions/pdf/2338daisy.pdf

 
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MPA - Maryland Port Administration
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TITLE: H.A. Harris Company, Inc.
MSBCA #: 1392
YEAR: 1988
CASE TYPE: Bid Protest
ISSUE: Responsiveness, Reconsideration, Command Influence
HEADNOTE:

Responsiveness - A bid is responsive when it takes no exception on its face with regard to the bidder's intent to comply with RFQ specifications requiring a minimum of work to be performed by the bidder's own personnel since it is unequivocally and unambiguously committing the bidder to that requirement. Responsiveness is determined from the face of the bid document and not from information subsequently obtained through a verification process or other extrinsic evidence.

Responsibility - Statements made by the bidder subsequent to the opening of bids and before award of the contract with regard to its ability to comply with RFQ specifications requiring a minimum of work to be performed by the bidder's own personnel do not affect the bid's responsiveness but can be used to determine the bidder's responsibility since such statements concern the bidder's capability to perform the contract.

Reconsideration - A procurement agency has the inherent right to reconsider a procurement officer's final decision up to the time when an appeal is taken to the Appeals Board or the running of the appeal period in order to correct an error of law or mistake of fact.

Reconsideration - Section 11-137 (c) § (d), State Finance and Procurement Article, provides that a procurement officer's decision on a bid protest is to be reviewed by the procurement agency head and the head of any principal department of which the procurement agency is a part and the reviewing authority's decision to approve, disapprove or modify the procurement officer's decision is the final action of the procurement agency. Section 11-137(f) provides that it is this final action of the procurement agency which may be appealed to the Appeals Board. Under the facts of this case, therefore, it was appropriate for the Secretary of Transportation to reconsider his own decision to approve the Maryland Port Administration procurement officer's final decision and the Secretary's determination to change his decision was a legitimate exercise of his power as the reviewing authority and will not be overturned by this Board since it was not shown to be collusive, arbitrary, or in violation of statute or regulation.

Command Influence - Appellant did not meet its burden of proof to support its claim of command influence; this is not a case where the procurement officer's final decision was usurped by a higher authority but a case where he was overruled.

2_193Harris.pdf

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TITLE: C.J. Langenfelder & Sons
MSBCA #: 1000, 1003, 1006
YEAR: 1980
CASE TYPE: Construction Claims
ISSUE: Rescission, Constructive Change, Equitable Adjustment, Interest, Differing Site Condition
HEADNOTE:

Rescission - Partial rescission for unilateral mistake was denied where the contract was entire.

Constructive Change - Where a contract mandated the performance of work in a specific sequence, a directive altering the sequence constituted a change to the contract.

Constructive Change - A directive to dispose of certain oversized materials encountered in dredging at an alternate disposal site not specified in the contract was a constructive change.

Equitable Adjustment - Equitable adjustments are corrective measures utilized to keep a contractor whole when the State modifies a contract. The intent is to restore a contractor to the economic position he was in prior to the modification.

Equitable Adjustment - The standard of measurement for an equitable adjustment is the difference between what the work reasonably cost as directed and what it reasonably would have cost as performed under the original contract terms.

Equitable Adjustment - Historical (actual) costs are presumed reasonable and the State has a heavy burden of showing that the incurred cost should not have been expended or was too high.

Interest - By statutorily waiving the defense of sovereign immunity in contract actions, the State impliedly waived its immunity to interest on judgments entered in contract cases.

Interest - Post-decision interest properly should be payable on the equitable adjustment found due from the date of the Board's decision until payment. Interest should accrue at the Legal Rate in the same manner as it does on judgments nisi pursuant to Rule 642 of the Maryland Rules of Procedure.

Interest - The award of predecision interest as part of an equitable adjustment lies within the discretion of the Board.

Interest - Predecision interest was included in the award of an equitable adjustment but did not commence to run until (1) the contractor submitted its monetary claim, (2) the MPA had a reasonable opportunity to review it for accuracy and (3) the MPA had a reasonable period to process the payment of the principal amount due.

Differing Site Condition - Where a contractor encountered original river bottom above project grade in a "maintenance dredging" contract, it was found to be a "type 1" differing site condition. The term "maintenance dredging" indicated that only materials resulting from natural siltation would be encountered above project grade.

Differing Site Condition - A contractor was not obligated to verify, by site investigation, contractual indications concerning subsurface conditions.

Differing Site Condition - The encountering of debris, the existence of which was ascertainable from a reasonable site investigation, was not a "type 2" differing site condition.

1_2Langenfelder.pdf




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Scott A. Livingston, Esq.
301.951.0150
301.951.0172 (fax)
scottlivingston@rwlls.com
7979 Old Georgetown Rd.
Suite 400
Bethesda, MD 20814
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