14.1 Solicitation Protests
14.1.1 Definitions
14.1.1.1 In this section, offeror includes a prospective offeror.
14.1.1.2 Aggrieved means that the offeror who is filing the protest or appeal may be eligible for an award of the contract if the protest is sustained (e.g., a fourth ranked offeror is not aggrieved unless the grounds for a protest, if sustained, would disqualify the top three ranked offerors or would require that the solicitation be reissued).
14.1.2 Protest
Only an offeror who is aggrieved may file a protest. An offeror is aggrieved only if the offeror can demonstrate that if the protest is sustained, the offeror may be eligible for the remedies allowed under Section 14.1.3.6(a) or (c).
14.1.2.1 Any offeror who is aggrieved in connection with a formal solicitation must file and deliver a written protest to the Director as follows:
(a) If the bidder or offeror seeks as a remedy the award of the contract or costs under Section 11B-36(h) and Section 14.1.3.6(c), then the bidder or offeror must file and deliver a written protest within 10 days after the Director publicly posts the proposed award.
(b) If the bidder or offeror seeks as a remedy the cancellation or amendment of the solicitation under Section 14.1.3.6(a), then the bidder or offeror must file and deliver a written protest before the submission date and time for bids or proposals.
(c) If the bidder or offeror files and delivers a written protest under subsection (b) of this Section, but does not submit a bid or proposal by the submmission date, and the solicitation is not cancelled or amended, the bidder or offeror will not be eligible for the remedies allowed under subsection (a) of this Section.
The Director must dismiss any protest not timely received.
14.1.2.2 Each protest must contain the following:
(a) An identification of the solicitation from the County;
(b) The protesting offeror’s name, address and telephone number;
(c) A statement supporting that the offeror is aggrieved;
(d) Specification of all grounds for the protest, including:
(1) A submission of detailed facts and all relevant documents;
(2) A citation to relevant language in the solicitation, regulations, or law relied upon; and
(3) All other matters which the offeror contends supports the protest.
(e) Factual allegations regarding information not appearing on the face of the solicitation or offer must be supported by affidavit based on personal knowledge.
(f) A protest filing fee in the amount of $500.00.
(g) If bid or proposal preparation costs are sought, the protesting offeror must provide by affidavit based on personal knowledge evidence supporting the costs claimed.
14.1.2.3 If, before filing a timely protest, an aggrieved offeror has requested in connection with the protest public records under the Maryland Public Information Act, the offeror may amend the grounds for the protest within 10 days of the County’s making available for inspection records that: (a) must be released under the Maryland Public Information Act at the time of the request for the records; and (b) demonstrate the offeror may have other grounds for the protest than the grounds specified in the protest.
14.1.2.4 After a protest is filed, the Director may give appropriate notice to other known offerors who may be affected by the protest. Other affected offerors may submit written comments or documents regarding the protest. All offerors are required to keep apprised of the current status of solicitations, proposed awards and protests; an offeror may not rely on notice of a protest from the Director. Notice by the Director is discretionary and need not be given. The burden of staying informed about the filing of a protest and the timely submission of comments by affected offerors is on the offerors.
14.1.2.5 The Director may hold a conference with all interested parties if the Director believes a conference would contribute to a resolution of the protest.
14.1.2.6 The burden of production of all relevant evidence, data and documents and the burden of persuasion to support the protest is on the offeror making the protest.
14.1.2.7 After considering the protest based on the record received, the Director must make a determination and finding regarding the protest. The Director’s determination and finding are in the nature of a reconsideration. The Director must forward by certified mail the determination and finding to the protesting offeror and other offerors who have participated in the protest.
14.1.3 Appeal
14.1.3.1 An offeror may appeal to the CRC a protest decision of the Director which adversely affects the offeror within 10 days after the date the decision is mailed. The offeror must be aggrieved to appeal.
14.1.3.2 The CRC must review the protest de novo, but the CRC must not consider any grounds except those presented to the Director under 14.1.2.2.
14.1.3.3 The appeal must be in writing and must include a copy of the protest and the decision of the Director. In addition, the appeal must contain all grounds for disagreement with the decision of the Director. The appealing offeror is confined to the grounds specified for the appeal and may not raise new grounds for the appeal after the initial appeal is filed with the CRC.
14.1.3.4 After the offeror files an appeal, the Director may submit to the CRC a response to the appeal. If the Director submits a response, then the Director must include in the response all documents in support of the response.
14.1.3.5 The CRC (with the Director not participating) must review the appeal.
(a) If the CRC finds there is no genuine dispute as to a material fact and the appeal can be decided as a matter of law (which may include lack of aggrieved status or failure to comply with appeal procedures), the CRC must make proposed findings and a recommendation that decide the appeal.
(b) If the CRC finds there is a genuine dispute as to a material fact and the appeal cannot be decided as a matter of law, it must notify the appealing offeror, the proposed awardee, the Director, and the Using Department, and the CRC must conduct further proceedings, which may include a hearing. If a hearing officer is designated by the CRC, the hearing officer must conduct the hearing and make proposed findings and a recommendation to the CRC. After the hearing (if any) and based on the record, the CRC may accept, reject, or modify the hearing officer’s proposed findings of fact and recommendation, and must, in turn, submit a recommended decision on the appeal to the CAO.
(c) The CRC must send a copy of the recommended decision to the CAO who may approve, revise, or remand the decision. If the CAO takes no action within five working days, the decision of the CRC becomes the final decision of the CAO.
(d) The final decision must be mailed to the appealing offeror and other offerors who have participated in the appeal.
(e) The final decision of the CAO is subject to appeal to the Circuit Court under the Maryland Rules governing administrative appeals.
14.1.3.6 Remedies
(a) Remedies before an award: If a protest or appeal is sustained before an award, then the solicitation or proposed award must be:
(1) canceled; or
(2) revised to comply with the law.
(b) Remedies after an award: If a protest or appeal is sustained after an award, then:
(1) if the person awarded the contract has not acted fraudulently or in bad faith:
(A) the contract may be ratified and affirmed; or
(B) the contract may be terminated and the person awarded the contract must be compensated for the actual expenses reasonably incurred under the contract, plus a reasonable profit, prior to the termination; or
(2) if the person awarded the contract has acted fraudulently or in bad faith, the CRC may make a specific recommendation to the Director to take an action authorized under Section 11B-39(b) of the Montgomery County Code.
(c) A monetary award in favor of a protesting bidder or offeror is limited to reasonable bid or proposal preparation costs. Bid or proposal preparation costs may be awarded only if:
(1) the protesting bidder or offeror should have been awarded the contract; and
(2) the award has been made to another.
(d) The Director or CRC may return the filing fee to the protesting bidder or offeror, if the protest or appeal is sustained.
14.1.4 Standard of Review of QSC Recommendations
If the evaluation of the proposals by the QSC is challenged, the Director or, in the case of an appeal, the CRC, must give deference to the judgment of the QSC. The QSC’s recommendation must be affirmed where a reasoning mind could arrive at the conclusion reached by the QSC consistent with proper application of applicable procurement laws, regulations, and solicitation requirements.
14.1.5 Contract Awards
14.1.5.1 Generally, performance under a contract does not commence until the later of 10 days from the date of posting of the proposed awardee or, in the case of a protest, the final administrative decision has been made by the County.
14.1.5.2 The Director may award a contract and authorize performance under a contract before the 10 days has elapsed or a final administrative decision made with regard to a protest after making a determination and finding that awarding the contract without delay is necessary to protect the interests of the County. The Director should consider the following:
(a) The merits of any protesting offeror's complaint;
(b) The need of the government for the procurement which is the subject of the protest;
(c) The fluctuations in the market affecting costs;
(d) The unwillingness of the proposed awardee to delay performance under the contract or to extend its offer; or
(e) Other factors affecting on the interests of the County.
14.1.6 Solicitation Protest Hearing Procedures; Powers of Hearing Authority
14.1.6.1 Hearings are held at a time and place designated in a written notice to the parties to the appeal. The hearing is on the record and must be open to the public, unless otherwise ordered by the hearing authority or as provided by law.
14.1.6.2 The hearing authority must arrange for a verbatim recordation of all testimony. The Using Department must pay the cost of the recordation. A party requesting a transcript must bear the expense of the transcript. The hearing authority must maintain a record of the proceedings which consist of the verbatim recordation or transcript, exhibits, and the hearing authority’s proposed findings of fact and recommendations.
14.1.6.3 A hearing authority must not consider an ex-parte communication except as provided in the Montgomery County Public Ethics Law.
14.1.6.4 Each party may:
(a) be represented by counsel authorized to practice law in Maryland;
(b) file motions;
(c) present evidence, including testimony and exhibits;
(d) cross-examine witnesses; and
(e) argue in support of its respective positions.
14.1.6.5 Subject to the direction of the hearing authority, proceedings are informal. Although the hearing authority has full discretion to proceed in an orderly fashion, the following is the usual order for presentation of the appeal:
(a) Opening statements (appealing offeror first, proposed awardee second, Director last);
(b) Presentation of witnesses and documents (appealing offeror first, proposed awardee second, Director last); and
(c) Closing argument (appealing offeror first, proposed awardee second, Director last).
14.1.6.6 The hearing authority may establish requirements with respect to discovery and other pre-hearing submissions and procedures.
14.1.6.7 The hearing authority may admit and give appropriate weight to evidence which possesses probative value commonly accepted by reasonable and prudent persons in the conduct of their affairs, including hearsay evidence that is reliable in nature. The hearing authority must give effect to the rules of privilege recognized by law. The hearing authority may exclude incompetent, unreliable, irrelevant or unduly repetitious evidence, or admit evidence at its own request. The hearing authority may question witnesses on any point.
14.1.6.8 The hearing authority may:
(a) set any reasonable schedule for the hearing, motions, and presentation of evidence;
(b) accept stipulations;
(c) require the swearing of witnesses;
(d) take official notice of commonly cognizable facts;
(e) rule on motions and objections;
(f) subpoena and examine witnesses;
(g) accept exhibits into the record;
(h) administer oaths and affirmations;
(i) grant or deny a request for a subpoena, including a subpoena duces tecum;
(j) impose sanctions for failing to provide required discovery;
(k) for good cause shown, keep the record open for receipt of additional evidence or submissions by the parties after the close of the hearing; and
(l) make any other ruling necessary to promote fairness or efficiency in the hearing process, including a recommended summary disposition of the appeal.
14.1.6.9 The burden of proof and the burden of persuasion with respect to the appeal is on the appealing offeror.
14.1.6.10 The hearing officer must prepare and submit to the CRC a written report containing proposed findings of fact and recommendations based on the record. A copy of the report must be forwarded to all parties.
14.1.6.11 The CRC may hear separate appeals from different offerors on the same proposed contract award in the same hearing or in separate hearings.
14.2 Contract Disputes
14.2.1 Definitions
14.2.1.1 In this section claim means:
(a) a demand by a contractor or the County that seeks the payment of money, an adjustment of time, an adjustment or interpretation of a contract provision, or other relief arising under or relating to a contract; or
(b) a disagreement arising from a decision by the Director regarding a contract termination under 11B.00.01.12 of these regulations.
14.2.1.2 In this section a dispute means an unresolved claim.
14.2.2 General
14.2.2.1 Administrative Process
(a) A contractor must use the process set out in this section to file and resolve a claim or dispute under a contract.
(b) The County may use the process set forth in this section to resolve an affirmative claim or dispute under a Contract.
14.2.2.2 Procedure.
(a) Contractor: Except with respect to a claim arising from a decision of the Director terminating a contract, a contractor must notify the contract administrator in writing of the claim, and must attempt to resolve the claim with the contract administrator prior to filing a dispute with the Director. A contractor must file a dispute with the Director within 30 days of the event giving rise to the claim (unless the contract provides otherwise), whether or not the contract administrator has responded to the written notice of claim or resolved the claim. The contractor waives any dispute not timely filed. The Director and the CAO must dismiss a dispute that is not timely filed. If the dispute arises from a decision of the Director terminating a contract, the Director must treat the dispute as a request for reconsideration.
(b) County/Using Department: In addition to any other remedies the County may have, the Using Department may use the administrative process established by these regulations. To use this process, the Using Department may notify the contractor or contractor’s agent of the claim in writing within 30 days of the event giving rise to the claim and may attempt to resolve the claim with the contractor prior to filing a dispute with the Director. The Using Department may file a dispute regarding a setoff or payment with the Director at any time before final payment occurs. The Using Department may file a dispute regarding a latent defect within 60 days of discovery of the defect.
(c) When the Director has delegated the authority to consider a dispute to the Using Department, the party filing the dispute must file it with the Director of the Using Department, followed by an appeal to the CAO.
14.2.2.3 When first filing a dispute, the party that files a dispute (a contractor or the Using Department, whichever initiates the dispute) must provide the following information to the Director as part of the filing:
(a) The name and identification number of the contract with the County;
(b) The name, address and telephone number of the contractor, if the contractor files the dispute. If the Using Department files the dispute, the name, address and telephone number of the contract administrator of the Using Department must be provided;
(c) All grounds supporting the contractor's or Using Department’s requested relief, including:
(1) The detailed facts and all relevant documents;
(2) The relevant language in the contract, regulations, or law relied upon;
(3) All other matters which the contractor or Using Department contends support the claim; and
(4) The relief requested.
(d) The factual allegations contained in the dispute must be supported by one or more affidavits based on personal knowledge.
(e) The non-filing or responding party may submit a response to the allegations contained in the dispute within 30 days after the filing of the dispute. The response must include any documented information that addresses the information supplied with the dispute in the manner described in subsection (c) of this Section.
14.2.2.4 (a) The Director, after consulting with or obtaining written information from the non-filing party, must decide a dispute within 45 days after receiving the documents and information specified in Section 14.2.2.3 unless the filing party agrees to extend the time for a decision.
(b) If the Director denies a dispute, in whole or in part, the contractor or Using Department may file a contract dispute appeal with the CAO. The dispute appeal must be filed within 30 days after the party receives the Director’s decision. If no decision is rendered by the Director within 45 days of the Director’s receipt of the documents and information specified in Section 14.2.2.3, then the dispute appeal must be filed within 75 days after the party filed the dispute.
(c) Unless the Director and the filing party agree, a dispute may not be resolved by mediation or binding arbitration.
14.2.2.5 The CAO may hold a conference with all interested parties if the CAO believes a conference would contribute to a resolution of the dispute.
14.2.2.6 The filing party bears the burden of proof and the burden of persuasion to support the relief requested.
14.2.2.7 Pending final resolution of a dispute, the contractor must proceed diligently with contract performance unless the County has terminated the contract.
14.2.2.8 The CAO may consolidate disputes if the disputes have common questions of law or fact. The time limits in Section 14.2 for the last dispute filed apply to the consolidated dispute.
14.2.2.9 The CAO or the Director may order a contractor that is not a party to the appeal or the contract under which the dispute has been filed to become a party to the proceeding if the dispute on appeal may be based, in whole or in part, on the performance of the other contractor. The Director or CAO may order the other contractor to compensate another party to the dispute appeal, including the County, for damages incurred as a result of the other contractor’s failure to perform a contract obligation.
14.2.2.10 Upon receipt of the contract dispute appeal, the CAO must review the dispute de novo, but the CAO must not consider any grounds except those presented by the filing party under 14.2.2.3.
(a) The appealing party must file a dispute appeal with the CAO. The dispute appeal must identify the relief sought and all grounds and materials supporting the request for relief. The appealing party must provide a copy of the dispute appeal to the opposing party, the Director and the County Attorney.
(1) At the time of filing a dispute appeal involving $25,000 or more with the CAO, the appealing party must provide to the other parties to the dispute a written notice which contains:
(A) the name and, if known, the address and telephone number of each individual likely to have discoverable information regarding facts concerning the dispute;
(B) a computation of each category of damages or other specific relief sought; and
(C) the name, address, and telephone number of each individual from whom the contractor expects to obtain expert testimony. The notice must include a written statement that contains:
(i) a complete statement of each opinion to be expressed;
(ii) the basis and reason for each opinion;
(iii) the data or other information considered by the expert in forming each opinion;
(iv) the qualifications of the expert, including a list of all publications authored by the expert; and
(v) a list of each case in which the expert has testified as an expert within the preceding 4 years.
(D) the parties have a continuing obligation to promptly supplement any change in information contained in the written notice required in this subjection.
(2) The other parties must provide the notice required under paragraph (1) to the appealing contractor and any other party:
(A) within 90 days after being served with the notice required under paragraph (1) if the dispute involves more than $100,000; or
(B) within 60 days after being served with the notice required under paragraph (1) if the dispute involves $100,000 or less.
(b) The Director must file a response with the CAO to the dispute appeal within 15 days after the dispute is filed. The Director must include a complete copy of the contract in the response unless the appealing party has provided it in the dispute appeal. The Director must send a copy of the response to the parties.
(c) The CAO may require the contractor or the Using Department and the Director to submit additional information.
(d) Summary disposition. If the CAO finds, based on the record, that the appealing party failed to comply with the requirements of section 14.2.2, the CAO must summarily deny the appeal within 30 days after receiving the appeal. If the CAO finds, based on the record, that the appealing party complied with the requirements of section 14.2.2, and there are no genuine disputes of material fact, the CAO must decide the appeal without a hearing within 30 days after receiving the appeal. The CAO must state in writing the reasons that support the decision. The CAO may request supplemental memoranda from the parties and extend the time for issuing a decision, with the parties’ consent.
(e) If the CAO determines that the appeal cannot be decided under section (d) above, the CAO must order a hearing. The CAO may designate a hearing officer to conduct the hearing, and may limit the issues to be heard. If a hearing officer is designated by the CAO, the hearing officer must conduct the hearing in accordance with section 14.2.4 and make proposed findings of fact and recommendation to the CAO. The hearing must be completed in conformance with the time requirements imposed by Chapter 11B of the Code. After the hearing and based on the record, the CAO must make a written decision on the appeal, including proposed findings of fact and recommendation within 30 days after receiving the hearing officer's report. The CAO may adopt, modify or reject the findings of fact and recommendation of the hearing officer’s report.
(f) The County/Using Department may file a contract dispute appeal under this Section. When filing a dispute appeal, the same filing requirements and timelines delineated in Section 14.2.2.10(a) through (e) apply to the appeal.
(g) The contractor may appeal the final decision of the CAO to the Circuit Court pursuant to the Maryland Rules governing judicial review and as provided under Section 11B-35(d) of the Code. Either the contractor or the County may appeal the Circuit Court’s decision to the appellate courts of Maryland.
14.2.2.11 Unless the CAO and the appeal party agree, a contract dispute appeal may not be resolved by mediation or binding arbitration.
14.2.3 Contract Dispute Procedures
14.2.3.1 Discovery
Whether or not a hearing has been ordered, each party to an appeal in a contract dispute is entitled to obtain the following discovery regarding any matter, not privileged, which is relevant to the appeal:
(a) Any time after a contract dispute appeal has been filed with the CAO, a party may serve another party with a request for production, inspection, and copying of documents or any tangible things. Within 30 calendar days after service, the party served must respond stating that inspection and copying will be permitted or stating the basis for any objection.
(b) If the value of the dispute exceeds $250,000, any party may take depositions, upon oral examination, before an officer authorized to administer oaths at a place of examination, for the purpose of discovery or for use as evidence. The party desiring to take a deposition must serve a notice of deposition upon oral examination at least 7 calendar days before the date of the deposition. A party must not take more than 5 depositions without leave of the hearing authority or agreement of the parties.
14.2.3.2 Pre-Hearing Report
Seven days prior to the commencement of the hearing, the contractor and the County must submit a pre-hearing report to the hearing authority, with a copy to the other parties. Each pre-hearing report must:
(a) Explain each claim and defense relied upon by the party;
(b) List all issues not in dispute, facts stipulated, and facts to which the other party is requesting stipulation;
(c) List each witness (except for rebuttal witnesses) to be called by the party and a summary of the facts to which the witness is expected to testify;
(d) List each expert witness to be called and attach a copy of any report prepared by the expert witness. Unless contained in the expert’s report, the party must provide:
(1) a complete statement of each opinion to be expressed;
(2) the basis and reason for each opinion;
(3) the data or other information considered by the expert in forming each opinion;
(4) the qualifications of the expert, including a list of all publications authored by the expert; and
(5) a list of each case in which the expert has testified as an expert within the preceding 4 years.
and;
(e) List each exhibit to be introduced by the party.
14.2.4 Hearing Procedures; Powers of Hearing Authority
14.2.4.1 The CAO may designate a hearing officer to conduct a hearing and make proposed findings of fact and recommendations to the CAO. If the CAO designates a hearing officer, the hearing officer has all the authority granted in section 14.2.4 granted to the hearing authority except the authority to make a final agency decision.
14.2.4.2 The hearing authority must provide written notice to the parties designating a time and place for the hearing. The hearing must be on the record and be open to the public, unless otherwise ordered by the hearing authority or as provided by law.
14.2.4.3 The hearing authority must arrange for a verbatim recordation of all testimony. The Using Department must pay the cost of the recordation. A party requesting a transcript must bear the expense of the transcript. The hearing authority must maintain a record of the proceedings which consists of the verbatim recordation or transcript exhibits, and the hearing authority’s proposed findings of fact and recommendations.
14.2.4.4 A hearing authority must not consider an ex parte communication except as provided in the Montgomery County Public Ethics Law.
14.2.4.5 Each party may:
(a) be represented by counsel authorized to practice law in Maryland;
(b) file motions;
(c) present evidence, including testimony exhibits;
(d) cross-examine witnesses; and
(e) argue in support of its respective positions.
14.2.4.6 Subject to the direction of the hearing authority, proceedings are informal. Although the hearing authority has full discretion to proceed in an orderly fashion, the following is the usual order for presentation of the appeal:
(a) Opening statements (appealing contractor first, County last);
(b) Presentation of witnesses and documents (appealing contractor first, County last); and
(c) Closing argument (appealing contractor first, County last).
14.2.4.7 The hearing authority may admit and give appropriate weight to evidence which possesses probative value commonly accepted by reasonable and prudent persons in the conduct of their affairs, including hearsay evidence that is reliable in nature. The hearing authority must give effect to the rules of privilege recognized by law. The hearing authority may exclude incompetent, unreliable, irrelevant or unduly repetitious evidence, or admit evidence at its own request. The hearing authority may question witnesses on any point.
14.2.4.8 The hearing authority may:
(a) set any reasonable schedule for the hearing, motions, and presentation of evidence;
(b) accept stipulations;
(c) require the swearing of witnesses;
(d) take official notice of commonly cognizable facts;
(e) rule on motions and objections;
(f) subpoena and examine witnesses;
(g) accept exhibits into the record;
(h) administer oaths and affirmations;
(i) grant or deny a request for a subpoena, including a subpoena duces tecum;
(j) impose sanctions for failing to provide required discovery;
(k) for good cause shown, keep the record open for receipt of additional evidence or submissions by the parties after the close of the hearing; and
(l) make any other ruling necessary to promote fairness or efficiency in the hearing process, including a recommended summary disposition of the contract dispute appeal.
14.2.4.9 The burden of proof and the burden of persuasion with respect to the appeal is on the appealing contractor.
14.2.4.10 The hearing officer must prepare and submit to the CAO, a written report containing findings of fact and recommendations based on the record. A copy of the report must be forwarded to all parties.
14.2.5 Alternative Dispute Resolution
14.2.5.1 If an election to mediate the dispute has been made, the parties must enter into a mediation agreement which:
(a) states how a mutually acceptable mediator will be chosen;
(b) defines the consequences for failing to resolve the dispute through mediation; and
(c) provides that the cost of the mediation services will be borne equally by the parties.
14.2.5.2 (a) If an election to submit the dispute to binding arbitration is made, the parties must enter into an agreement which:
(1) states how a mutually acceptable arbitrator will be selected. The parties may agree to use an arbitration service such as the American Arbitration Association or the Federal Mediation and Conciliation Service. Unless the parties agree otherwise, or the arbitration service selected provides for another method of selection, the parties must alternatively strike the proposed arbitrators until one remains.
(2) provides that the cost of the arbitration services will be borne equally by the parties; and
(3) provides for mutual discovery and hearing procedures.
(b) An arbitrator has no authority to amend, add to, or subtract from applicable State and Montgomery County law, Montgomery County Procurement Regulations, and the terms of the contract under which the dispute arises. The arbitrator must make an award that is consistent with applicable law, regulations, and the terms of the contract.
(c) In arbitration, the contractor bears the burden of proof and the burden of persuasion to support the relief requested.
(d) Pending final resolution of the dispute by arbitration, the contractor must proceed diligently with contractor performance unless the County has terminated the contract.