A recent decision highlights the difficulties a contractor faces in protesting a

decision to cancel an Invitation for Bids (IFB), at least in Maryland. The case

grew out of a large highway construction project being advertised by the

Maryland Transportation Authority (MdTA). The IFB contained confusing bid

requirements for subcontractor participation goals for Minority Business

Enterprises (MBEs). In one place in the bid documents it said that the woman–

owned MBE goal was 7%. A later bid addendum, however, stated that the goal

was 10%. To make matters worse, the addendum was itself somewhat

confusing.

While the low bidder, American Infrastructure-MD (AI), submitted a bid with a

7% woman-owned MBE package, all the other bidders bid with 10% MBE

participation. At first, MdTA considered allowing AI a late (post-bid)

modification of its bid. Just before making an official award, however, MdTA

changed its mind and decided to cancel the IFB, fix the specifications and rebid

the project. AI protested the decision to the Maryland State Board of

Contract Appeals. It argued that MdTA used the confusion in the IFB as a

pretext not to the award the contract to AI.

Ober|Kaler represented the second low bidder who supported MdTA's decision.

The Board agreed with our client's position and denied AI's protest. Joseph C. Kovars discusses the case in this article.