It is a fundamental principle of procurement law that all competitors must be treated fairly and equitably. During the state contract selection process, state procurement officers often receive questions from, and have communications with, prospective bidders and offerors. In doing so, they must be very careful not to violate this fundamental directive.

That is exactly what the Maryland State Board of Contract Appeals found happened in the case of GCOM Software, LLC, MSBCA Nos. 3257 & 3279, decided Jan. 17, 2025.

There, the Maryland State Department of Education attempted for some time to procure information technology services to support the Maryland Accountability & Reporting System and Maryland Direct Certification System. In January 2021, the MSDE issued a Task Order Request for Proposals (“TORFP”) under a Task Order Master Contract. Due to a protest, the education department issued a second TORFP in September 2022.

Under the TORFP for IT services, the experience and skills of key personnel was important. Offerors were required to identify certain key personnel and provide resumes for evaluation. During the evaluation process, the procurement officer, on May 10, 2023, directed all qualified offerors to confirm availability and references of key personnel and to identify any changes in key personnel by May 17, 2023.

While GCOM confirmed its key personnel, as requested, the proposed awardee, International Software Systems, Inc. (“ISSI”), emailed the procurement officer to ask if key personnel could work remotely. The TORFP was silent on this issue.
Initially, the education department confirmed that remote work was possible. But shortly thereafter, it retracted that answer and advised ISSI a final answer would be provided.

Nonetheless, despite ongoing internal communications at the agency on the topic, the education department failed to answer ISSI’s question prior to the May 17 deadline.

This caused ISSI to confirm alternate key personnel – one set if remote work was allowed, and one set if it was not. A similar series of events occurred a month later, when the procurement officer again asked for offerors to reconfirm key personnel and submit their resume and references. This time, ISSI sent a second list of key personnel that included individuals from both of its prior lists.

The procurement officer never informed the other competitors of the questions presented or the answers given. As the board found, “Only ISSI was provided information confirming that remote work was permissible. And only ISSI was allowed to revise and make substitutions to its key personnel after the May 17th deadline.”

This was not GCOM’s only basis to contend that it was not treated fairly or equitably. GCOM learned that the chairman of the evaluation committee participated in one of the oral presentations yet did not attend GCOM’s presentation or any of the other offerors.

A unanimous panel of the MSBCA found the award to ISSI to be arbitrary, capricious and unlawful. It did not matter that GCOM could not establish that the outcome would have been different if the chairman attended the oral presentations.
Rejecting the education department’s “no harm, no foul” argument, the board directed that the issue is whether the department “accorded all of the qualified offerors fair and equal treatment, not whether the (evaluation committee) chairman’s failure to comply with the EC’s duties and responsibilities as specified in the TORFP affected GCOM’s competitive position.”

Without fair and equal treatment, “the two other offerors were prejudiced.”

Businesses competing for state contracts should be careful in communicating with procurement officers outside of the formal question and answer process. If questions come up late in the process and the answer may result in material unfairness, then the inquiring competitor runs the risk that an award may be undone by protest and appeal to the MSBCA.

It is certainly not improper for offerors to ask questions of the procurement officer, and ISSI surely could not have anticipated that the answer – or nonanswer – that it received was problematic.

But going forward, procurement officers and offerors should be mindful that discussions outside the formal question and answer process, which are fully permissible under COMAR, may result in findings of unfairness if, during those discussions, some offerors receive material information and others do not.

Barry L. Gogel is the managing partner of the Baltimore office of Rifkin Weiner Livingston, LLC, and practices before the Maryland State Board of Contract Appeals. Along with his colleagues at the firm, he writes a regular column on procurement legal issues. He can be contacted at bgogel@rwllaw.co