Presumably, House Bill 1488 would insure that only meritorious appeals from decisions denying bid protests would be filed by requiring an appellant to post a “protest appeal bond or other acceptable security” in the penal sum of up to 5% of the estimate value of the contract, including base and option years.
We believe that there is a perception that incumbent contractors not selected for award of subsequent contract routinely file bid protests, meritorious or not, in order to continue to perform under the expiring contract while the MSBCA proceeds with a sometimes lengthy process of resolving appeals. Currently the law prohibits contract award in the face of any appeal unless the Board of Public Works finds that immediate award is necessary to protect substantial state interests.
While the objective of reducing frivolous appeals is laudable, we believe that restricting or effectively barring access to the only venue for seeking redress is the wrong approach. Except in extremely rare cases, a potential protestant has only a suspicion of wrong doing at the time when it must file or waive its right to file a protest. Because little or no discovery is available at the agency level, it is necessary to file a so called “placeholder appeal” to preserve eligibility for award until more information can be obtained, which generally is available upon an order from the MSBCA. Requiring bidders or offerors to risk the penalty of bid protest bonds just to be able to obtain relevant facts may produce the unintended and unwanted consequence of the reduction of competition due to the withdrawal of competent vendors from the Maryland market place