Please ensure Javascript is enabled for purposes of website accessibility

Rejected bidders to gain access to more info from city

Asking Baltimore’s Board of Estimates to reconsider a rejected bid will get a bit easier under a proposal the city’s spending panel is expected to adopt on Wednesday.

The proposal would allow rejected bidders (or their representatives) to obtain the legal memoranda about their bid that the city’s Law Department prepared and sent to the Board of Estimates. While that information is covered by attorney-client privilege, the proposal would require the city solicitor and deputy comptroller, acting as the board designee, to approve a waiver of attorney-client privilege in almost all cases.

“It’s pretty straightforward and pretty transparent, as it should be,” said City Solicitor George A. Nilson.

The privilege would be waived unless there are “unusual circumstances,” and in those instances, the board designee would have to explain to the board in writing why the privilege was not waived, according to the resolution.

In the past, when lawyers have called asking Nilson about a defective bid, he said he could only respond in an “indirect, vague way.” Nilson said he would have preferred to hand over the Law Department opinions but could not without consent from the rest of the Board of Estimates.

For Robert Fulton Dashiell, who has filed hundreds of protests before the board over the last 30 years, the new policy is welcome, if not long overdue. In most cases of a bid protest, the city agency involved will seek the opinion of the Law Department, which then provides the opinions for the board.

“The Law Department weighs heavily in the entire procurement process,” said Dashiell, of The Law Office of Robert Fulton Dashiell, Esq., P.A. in Baltimore. “I have no idea how many times I’ve argued a case without knowing the Law Department’s position.”

Having the opinions will not only help in rejected bidders’ protests, Dashiell added, but could also lead to withdrawals of protests after rejected bidders see the legal reasoning behind the rejection.

The resolution is in direct response to a protest Dashiell recently filed on behalf of a client who lost a bid to rehab the Greyhound bus terminal. Dashiell’s client was the second-lowest bidder, and the Law Department memo determined the client lacked standing to pursue the bid protest, according to Nilson. The board denied Dashiell’s protest at a meeting last month, but subsequently decided to reject all bids because the winning bidder was found to be unqualified, according to Nilson.

Asked for examples when attorney-client privilege would not be waived, Nilson cited a document with confidential information or disclosing that a bidder is under investigation by a grand jury.

Waiver requests will only be considered if they are made in a letter or by email by the bidder or its representative, according to background information accompanying the resolution.

The resolution comes three months after the board passed a separate resolution formalizing protest guidelines.