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You are here: Procurement Alert > Maryland Procurement Alert August 2013

August 2013

Pre-bid Knowledge of Subcontractors May Be Imputed to Bidder

Brawner Builders, Inc., MSBCA No. 2813 (July 24, 2013)

In January, 2011, the State Highway Administration ("SHA") awarded Brawner Builders, Inc. ("Brawner") a contract for bridge deck replacement on four bridges in Anne Arundel County. Within the scope of work set forth in the Invitation for Bids ("IFB"), the contractor was required to clean and repaint the "facia" of all bridge beams, as well as welding reinforcing rods to the top flanges of load-bearing beams. In order to weld these rods, the top flange would need to be free of paint.

All four bridges were constructed prior to 1948, pursuant to the specifications of the State Roads Commission and American Association of State Highway Officials at the time. Prior to commencing work on the project, it was impossible for Brawner to know whether the top flange - upon which the concrete deck rested - had been painted.

After removing the old concrete bridge deck, exposing the top flanges of the beams, Brawner noticed that the flanges were painted. SHA instructed Brawner to remove the paint from these flanges, which resulted in a cost of over $100,000. Brawner submitted a claim on two grounds: (1) the term "facia" included only the vertical faces of the beams, rather than the horizontal flanges; and (2) that the presence of paint on the top flanges was a differing site condition undisclosed by SHA prior to bid opening. SHA denied the claim, and Brawner appealed to the MSBCA.

The MSBCA denied the Appeal on both grounds. First, the MSBCA found that Brawner's performance of the work belied its proposed interpretation of the term "facia," as Brawner performed paint removal on the bottom flanges of the beams. Second, the MSBCA denied Brawner's differing site condition appeal because Brawner could not show that its bid was based upon an understanding that paint would not be found on the top flanges. In finding the Brawner claim was without merit, the MSBCA noted testimony from Brawner's subcontractor; namely, that he knew of the possibility that paint could be found on the top flange after the removal of concrete. This knowledge was imputed to Brawner, who knew or should have known that it might find paint on top of the beams.


On May 3, 2013, Treya Partners presented a Procurement Improvement Review Comprehensive Process Design Report to the Board of Public Works. A copy of the Report may be found at

Treya recommended, among other things, more training for procurement officials. With regard to protests and appeals, Treya Partners considered the protest process "lengthy" due to "the relative ease with which vendors can dispute procurement awards as well as an amenable culture" and "issues concerning a lack of practical limitation on discovery." In reviewing the protest and appeals process, Treya Partners did not examine the disparities between the timeliness of (1) protests and appeals filed by disappointed offerors and (2) final decisions and agency reports filed by procurement agencies.

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Scott A. Livingston, Esq.
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7979 Old Georgetown Rd.
Suite 400
Bethesda, MD 20814
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