Watch Construction News from the Special Session of the Maryland General Assembly says Bowie & Jensen’s Matt Hjortsberg

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Contractors should pay close attention as the General Assembly has historically used special sessions to pass unpopular and controversial legislation aimed at closing budget deficits. Matt Hjortsberg, Bowie & Jensen, said.

The General Assembly will hold a special session in October of 2011. Contractors should pay close attention as the General Assembly has historically used special sessions to pass unpopular and controversial legislation aimed at closing budget deficits, Matt Hjortsberg of Bowie & Jensen said, “During the 2007 special session, the General Assembly passed the controversial "technology tax" that services provided by IT companies in Maryland.“

Contractors in Maryland familiar with State and County procurement have likely experienced the heavy-handed scrutiny of their Minority Business Enterprise ("MBE") participation forms contained in their bid submissions. Quite often the procurement officer will reject bids for very minor irregularities in the MBE forms. For example, this law firm represented a contractor who submitted the low bid with the highest MBE participation but had its bid rejected because rather than putting an exact total percentage of MBE participation, the contractor indicated with a ">" sign that it had exceeded the governmental agency's required MBE goal. Basic fifth grade level mathematical calculations would have allowed the procurement officials to determine the exact percentage. Unfortunately, the prevailing notion amongst State procurement officials is that the MBE certification forms should be strictly scrutinized and bids rejected for any irregularity no matter how minor.

According to Hjortsberg, this position, however, is directly contrary to Maryland law, which states:

A bidder's variation from specifications will not exclude him from consideration for the award of the contract unless it is so substantial as to give him a special advantage over the other bidders. In judging whether or not the omission or irregularity in a bid is so substantial as to invalidate it, the court must be careful not to thwart the purpose of competitive bidding by declaring the lowest bid invalid on account of variations that are not material.

To compound the problem arising out of the deviation between established Maryland law and the practice of State procurement officials, the Maryland Board of Contract Appeals ("MBCA") had taken the position that it did not have authority to entertain appeals of bid protests related to MBE issues, citing to the Code of Maryland Regulations ("COMAR"). Thus, bidders were confined to having their protests heard by the same governmental agency that had already rejected their apparent low bid.

Matt Hjortsberg is a member of the firm's litigation department and leads its construction practice.

His practice is concentrated on contract disputes and construction litigation as well as claims arising out of business break-ups. He has handled a variety of construction matters ranging from home improvement cases to disputes arising out of the construction of major commercial and government facilities. He has tried cases in state and federal courts and before the American Arbitration Association.

His notable cases include construction claims involving Ronald Reagan Airport, the Mid-Atlantic Sports Network (MASN), Canton Towers as well as, the successful defense of a local publicly traded company in a suit alleging violations of the Private Securities Litigation Reform Act, and the successful defense in a substantial breach of contact claim. He has also appeared on National Public Radio to provide insight on construction related matters.

About Bowie & Jensen
Bowie & Jensen is a Maryland-based law firm with attorneys representing clients around the world. Bowie & Jensen focuses on Business Litigation, Business Transactions, Intellectual Property, Employment Law, Estates & Trusts, Tax and Construction Law. For more information on Bowie & Jensen, please visit http://www.bowie-jensen.com.

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Karen McGagh
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