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Contract appeals board: Calvert Co. SHA project solicitation defective

The SHA contract  involves widening the road and adding a bike lane and a center median in the Prince Frederick area. (File photo)

The SHA contract involves widening Route 2/4 and adding a bike lane and a center median in the Prince Frederick area. (File photo)

The bidding process last year for a contract to improve Route 2/4 in Calvert County violated state procurement laws, according to a state board that decides bid and contract disputes.

The Maryland Board of Contract Appeals ruled Feb. 6 that the solicitation for the project, which involves widening the road and adding a bike lane and center median in the Prince Frederick area, was defective. The work is the second phase of a five-phase project.

Though Total Civil Construction & Engineering Inc., a Lanham-based company, was awarded the $29 million contract and began work last spring, fellow bidder Milani Construction has pursued a protest over the bidding process, which it argues was faulty due to inaccurate information provided by the Maryland State Highway Administration.

“It was important to Milani that the process be conducted fairly and that they get a fair chance to bid on the contract with accurate information,” said John F. Dougherty, counsel for Milani. “Even though the contract has already been awarded to somebody else and partially performed, the principle is still important to them and that’s why they continued to pursue the process and the appeal.”

The SHA solicited bids for the project in late 2017 and told contractors to account for the time it would take to relocate utilities, including Verizon facilities and equipment. In response to questions from bidders, the SHA said utility relocations were scheduled to be completed by October 2018. However, the day after learning it was the apparent low bidder, Milani was told by Verizon that the company’s relocation would be complete by January 2019 at the earliest.

Five of the eight contractors bidding on the project eventually filed protests because they had relied on the October date when calculating timelines, according to the appeals board opinion. Milani asked for the project to be re-bid, but its protest was denied because the bid was deemed nonresponsive for failing to satisfy a requirement.

Milani appealed the denial of its protest. The appeals board heard motions to dismiss by Total Civil and the SHA in April and denied them in May. Though the protest appeal was pending, the contract was awarded to Total Civil, the second-lowest bidder after Milani.

The appeals board held a two-day hearing in November and determined that the SHA “willfully ignored information available to it that clearly contradicted the scheduling information it provided to bidders” and said that the state could not properly evaluate bids when they were prepared without correct information.

“We have previously held that a decision by a procurement officer whether or not to reject all bids and resolicit a contract is one that should only be overturned if it was so fraudulent or arbitrary as to constitute a breach of trust,” board chair Bethamy Beam wrote. “Given the facts in this instance, we believe that is the case here.”

Board members Ann Marie Doory and Michael J. Stewart concurred in the opinion.

Dougherty, of Kramon & Graham PA in Baltimore, said the appeals board only issues decisions about whether a contract complies with procurement law. A circuit court judge must issue an order to enforce it.

Total Civil filed a petition for judicial review in Anne Arundel County Circuit Court the same day as the Board of Contract Appeals decision. Scott A. Livingston, counsel for Total Civil, declined to comment Tuesday on the status of the litigation.

“The parties are following appropriate procedures to protect their interests,” said Livingston, of Rifkin Weiner Livingston LLC in Bethesda.

An SHA spokesperson deferred to the Maryland Office of the Attorney General for comment on the lawsuit. A spokesperson for that office said it was reviewing options for next steps.

If the procurement is found to have violated the law, it could be void under state finance and procurement law. The contractor is entitled to compensation if it acted in good faith, did not contribute to the violation and had no knowledge of the violation before the contract was awarded.

The Board of Public Works, which did not have to approve the initial contract, can also determine that the contract is voidable rather than void and allow the parties to ratify their agreement and continue work.

The SHA spokesperson said Total Civil is currently preparing for sidewalk placement and the installation of storm drainpipes.

Dougherty said he has been told the project is behind, in part because of Verizon’s relocation schedule, which has been delayed beyond January. Livingston said it is his understanding that the project is approximately one-third complete. SHA did not comment on overall progress toward completion.

The case is In the Matter of Total Civil Construction & Engineering LLC, C-02-CV-19-000414.

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