Chapter 11B. Contracts and Procurement

HVAC systems, including heating, ventilation, and cooling/air conditioning equipment;

refrigeration systems;

plumbing systems, including pipes, tanks, fittings, and other elements that control the water and gas supply, heating, and sanitation of a building;

electrical systems, including any electrical power and overhead and underground lines, poles, transformers, and other related equipment; or

elevator systems, including escalators, moving walkways, and other related conveyances.

a percentage preference;

an employee residency requirement; or

any other law, policy, or practice that favors a resident over a nonresident.

the federal government;

a state government and any of its agencies;

any political subdivision of a state government and any of its agencies;

any board, commission, or committee established by federal, state, or local law;

any organization or association of the federal government, state governments, or political subdivisions of state governments; and

any other entity that is:

This Chapter, other than Article XII, does not apply to:

The Chief Administrative Officer has the authority and responsibility for:

All rights, powers, duties, and authority to administer the procurement system are vested in the Chief Administrative Officer.

The Director, under the supervision of the Chief Administrative Officer, is the central procurement officer of the County.

Duties. Except as otherwise specifically provided in this Chapter, the Director must, under regulations:

implement this Chapter;

promote the efficient and orderly operation of the procurement system; and

impose fees for services or products related to procurement.

Conditions for use. Contracts must be awarded by competitive sealed bidding except as otherwise authorized in this Chapter or regulations. Competitive sealed bidding is initiated by issuing an invitation for bids.

Invitation for bids. An invitation for bids must include specifications, evaluation criteria including the procedure for resolving tie bids, and all contractual provisions applicable to the procurement.

Public notice. The Director must give public notice of an invitation for bids a reasonable time before the date set for the opening of bids.

Bid opening. Bids must be opened publicly in the presence of one or more witnesses at the time and place designated in the invitation for bids. The amount of each bid, and other relevant information as may be specified by regulation, together with the name of each bidder, must be recorded. The record and each bid is open to public inspection.

Bid acceptance and bid evaluation.

Correction or withdrawal of bids; cancellation of awards.

Award. The contract may be awarded to the responsible and responsive bidder who submits the lowest bid which meets the requirements and criteria set forth in the invitation for bids. In determining whether a bid is responsive, the Director may waive a minor informality if the Director determines that a waiver is in the best interests of the County. A minor informality means a requirement in a bid which is merely a matter of form or is an immaterial provision in the solicitation. The Director may determine the defect in the bid to be immaterial when the significance of the defect as to price, quantity, quality, or delivery is trivial or negligible when contrasted with the total cost or scope of the procurement. The decision of the Director with respect to whether a requirement is a minor informality is final and may not be challenged by a bidder.

Multiple awards. Multiple awards may be made under a single invitation for bids if the invitation for bids provides for multiple awards.

Tie Bids. If the Director makes an award, the Director must award a contract to the County-based bidder when there is a tie bid between a County-based bidder and a non County-based bidder.

Reciprocal preference for County-based bidder.

Conditions for use. Generally a contract for professional services should be awarded by competitive sealed proposals. Professional services include services of attorneys, physicians, architects, and engineers. If the Director determines that the use of competitive sealed bidding is not practical or advantageous to the County, a contract may be awarded by competitive sealed proposals.

Request for proposals. Competitive sealed proposals must be initiated through a request for proposals.

Public notice. The Director must give public notice of a request for proposals a reasonable time before the date set for submission of proposals.

Evaluation and method of award.

Qualification and selection committee. A qualification and selection committee must review and evaluate the proposals and recommend in order of preference the most qualified offerors.

Approval of contract awards. The Director must approve the proposed ranking of offerors. If a County-based offeror and a non County-based offeror each receive an identical ranking score, the Director must consider the County-based offeror to be the higher ranked offeror.

Negotiation with responsible offerors. Unless a binding offer has been required under the request for proposal, the Director may negotiate a contract with the approved top-ranked offeror. If a contract cannot be successfully negotiated with the top-ranked offeror, the Director may authorize that negotiations be undertaken with the next highest ranked offeror. If the Director approves, negotiations may be undertaken simultaneously with two or more of the top ranked offerors. If a binding offer has been required under the Request for Proposals, the Director may enter into a contract with the top-ranked offeror without negotiation.

Multiple awards. Multiple awards may be made under a single request for proposals if the request for proposals provides for multiple awards.

Conditions of use. A request for expressions of interest may be used to:

Evaluation. A request for expressions of interest must contain evaluation factors and an explanation of how the list of bidders or offerors who will be eligible to receive a subsequent solicitation will be determined.

Public notice. As determined by the Director, public notice of the request for expressions of interest must be given a reasonable time prior to the date set for submission of proposals in accordance with regulations.

Qualification and selection committee. A qualification and selection committee must review and evaluate the proposals and recommend a list of bidders or offerors who will be eligible to receive a subsequent solicitation.

Director. The Director must approve, disapprove, or remand a recommendation for the proposed list of bidders or offerors eligible to receive a subsequent solicitation.

Subsequent solicitation. A request for expressions of interest does not directly lead to the award of a contract. Only those bidders or offerors determined to be eligible to receive a subsequent solicitation may participate in the subsequent solicitation. A subsequent solicitation may be accomplished through competitive sealed bids, competitive sealed proposals, or an informal solicitation. Proposals received under a request for expressions of interest may form a basis for justifying a noncompetitive contract award.

Competitive negotiation may be used if:

The Director must announce by public notice the County's intent to enter into competitive negotiations. The public notice must name the person with whom the County intends to negotiate.

If no timely bid or proposal is received or only one timely bid is received, competitive negotiations may take place concurrently with all those solicited who indicate a desire to participate in the negotiations. If more than one bid or proposal is received, negotiations may be held with the bidder or offeror who most nearly meets the County's requirements, including price, to attempt to negotiate an acceptable offer. If negotiations fail with the most qualified bidder or offeror, negotiations may proceed to the next most qualified bidder or offeror.

A contract may be awarded without competition if the Chief Administrative Officer makes a written determination that the contract award serves a public purpose and:

A non-competitive award under paragraph (a)(1) must not be made without the approval of the Chief Administrative Officer if the value of the award exceeds the monetary threshold for an informal solicitation under Section 11B-13.

The Director may award a contract to a person who meets pre-established minimum qualifications under an open solicitation. An open solicitation may only be used when the County can utilize the goods or services of all qualified offerors and expects to award a contract to each qualified person who applies for a contract subject to the availability of funds. An open solicitation permits the County to receive and act on an application for a contract award on a continuing basis.

An open solicitation must be accomplished under a plan approved by the Chief Administrative Officer which:

Each using department must post each planned informal solicitation to purchase goods, services, and construction, with a value greater than $10,000 and less than $100,000, on a County web site for 5 business days before making a purchase or entering into a contract. Each purchase must be made as provided under Section 11B-13.

Each posting must contain:

The Director may waive this posting requirement when a purchase is necessary to meet an imminent threat to public health, welfare, or safety. The Director must keep records on the number of waivers issued and the reason for each waiver, and must report this information to the Director of Economic Development, who must include this information in the annual report on the Local Small Business Reserve Program under Section 11B-69(b).

a bond provided by a surety company authorized and licensed to do business in this State;

cash; or

other security satisfactory to the County.

An invitation for bids, a request for proposals, or other solicitation may be canceled at any time when it is in the best interests of the County.

A bid or proposal may be rejected in whole or in part as specified in the solicitation.

Any type of contract which promotes the best interests of the County may be used; however, compensation must not be based on cost plus a percentage of cost. A cost-reimbursement contract may be used if the Director determines that a cost-reimbursement contract is likely to be less costly to the County than any other type of contract or that it is impracticable to obtain the goods, services, or construction required except under a cost-reimbursement contract. Under a cost-reimbursement contract, compensation may be based on cost plus a fixed fee or an incentive fee.

Each contract must be documented and authorized by a County official authorized by regulation to bind the County to a contract.

A construction contract awarded under a competitive sealed bid must not prohibit the payment to a contractor of actual and direct damages that result from a delay in completing the project within contractual time limits if the delay is caused by the County unless the County acted to:

Specified period. Unless otherwise provided by law or regulation, a contract for goods, services, or construction may be entered into for any period of time deemed to be in the best interest of the County. The term of the contract and conditions of extension should be included in the solicitation, if any. At a minimum, appropriated funds must be available for the first fiscal period at the time of entering the contract sufficient to defray the cost to which the County would become obligated under the contract. Payment and performance obligations for succeeding fiscal periods must be subject to the availability and appropriation of funds.

Determination prior to use. Before using a multi-term contract, the Director must determine that:

Termination due to unavailability of funds in succeeding fiscal periods. When funds are not appropriated or otherwise made available to support continuation of performance in a subsequent fiscal period, the contract must be terminated without further cost to the County.

Contract price increase provision. A multi-term contract for residential solid waste, recycling, or yard waste collection and disposal must include a price increase provision for each year of the contract beginning after the end of the first year of the contract. A price increase provision must require the County to increase the contract price by an amount sufficient to compensate the contractor for an increase in wages paid to the employees performing work on a covered contract to the extent the increase in wages does not exceed the last general wage increase approved by the County for members of the service, labor, and trades bargaining unit established in Section 33-105(a)(1). A price increase provision must:

The Director may require a contractor to provide performance and payment security in an amount determined by the Director. Performance security guarantees performance of the contract. Payment security guarantees payment for all labor and materials, including leased equipment, provided to the contractor for the performance of work under the contract.

In a construction contract, the Director must require performance and payment security in an amount at least equal to that required by State law.

Performance and payment security must be:

Audit of cost or pricing data. The County may, at reasonable times and places, audit the books and records of any person who has submitted cost or pricing data under Section 11B-26 (Cost or Pricing Data) to the extent that the books and records relate to the cost or pricing data. Any person who submits cost and pricing data must maintain the books and records that relate to the cost or pricing data for 3 years from the date of final payment under the contract, unless a shorter period is authorized by contract.

Contract audit. The County may audit the books and records of a contractor or any subcontractor under any contract to the extent that the books and records relate to the performance of the contract. The books and records must be maintained by the contractor for a period of 3 years from the date of final payment under the prime contract and by the subcontractor for a period of 3 years from the date of final payment under the subcontract, unless a shorter period is authorized by contract.

Actions covered. The Director must maintain a record for 5 years of any:

Contents of record. The record must include:

Submission to County Council. A copy of the record required under this Section for the preceding fiscal year must be submitted to the Council by September 30 of each year.

Each contractor and subcontractor must comply with the requirements of Chapter 27, and all federal civil rights requirements prohibiting discrimination in employment. Contractors must take affirmative action to ensure that all persons are treated in accordance with the provisions of Chapter 27.

In the event of a noncompliance by a contractor or subcontractor with the nondiscrimination requirements, the contract or subcontract may be canceled, terminated, or suspended in whole or in part and the contractor or subcontractor may be declared ineligible for further County contracts. Other sanctions may be imposed and remedies invoked as provided in regulations or by contract. Contractors are required to bind their subcontractors contractually to the provisions of this Section.

Scope. Any contract for procurement of services by a County department or office must require the contractor and any subcontractor to comply with the wage requirements of this Section. As used in this Section, “covered employer” refers to any contractor or subcontractor that is subject to this Section.

Exceptions to coverage. This Section does not apply to:

Solicitation requirements.

Health insurance.

Wage requirement.

Exceptions to wage requirement. The wage requirements of this Section do not apply to any employee:

Wage reporting.

Conflicting requirements. If any federal, state, or County law or regulation requires payment of a higher wage, that law or regulation controls. If any applicable collective bargaining agreement requires payment of a higher wage, that agreement controls.

Enforcement.

Report.

apply to any contract in effect on or after the date this Act takes effect; and

are not effective after July 1, 2017.

Purpose. Sound fiscal management requires vigilance to ensure that County funds appropriated for a service contract or a grant award to participate in a County-funded program are expended solely for the public purpose for which they are appropriated. If County funds are appropriated for a service contract or a grant award to participate in a County-funded program, and those funds are instead used to encourage, discourage, or otherwise influence union activity or organization, the proprietary interests of the County are adversely affected. The use of County funds to encourage, discourage, or otherwise influence employees from union activity or organizing constitutes a misuse of County resources.

Use of Funds. County funds appropriated for a service contract or a grant award to participate in a County-funded program must not be encumbered or used to assist, promote, deter, or otherwise influence union activity or organizing. Nothing in this Section shall be construed to prohibit the expenditure of County funds appropriated for a service contract or a grant award from being used to perform another act required by law.

Specific Restrictions. County funds for a service contract or a grant award to participate in a County-funded program must not be used to:

Enforcement.

Penalty. A contractor or grantee must pay the County the amount of funds expended in violation of this Section.

Definitions. In this Section, the following words have the meanings indicated:

Exclusions. Except as provided in subsection (9), this Section does not apply to a County financed construction contract:

Payment of prevailing wage. Any contractor and subcontractor that performs direct and measurable construction work on a County financed construction contract must pay each employee at a rate equal to or more than the prevailing wage in effect when the solicitation is published for the type of work performed.

Prevailing wage.

Contract requirements. Each contract covered by this Section must:

Reporting Requirement. For each quarter of the finance construction contract, the contractor must submit a report to the Department, on a form designated by the Director, with the following:

Violations.

Untimely Reporting. If a contractor is late in submitting reports required to be submitted under this section, the County may postpone payments due under the contract until the required reports are submitted.

Misclassification of employees.

Helper and trainee restrictions. A contractor or subcontractor must not employ any individual classified as a helper or trainee to perform direct and measurable work on a contract covered by this Section.

Posting requirements. Each contractor and subcontractor must post a clearly legible statement of each prevailing wage rate in a prominent and easily accessible place at the work site during the entire time work is being performed in English and any other language that is primarily spoken by the employees at the work site.

Payroll records.

Enforcement.

Report. The Chief Administrative Officer must report annually to the Council and Executive on the operation of and compliance with this Section.

Definitions. For purposes of this Section, the following terms have the meanings indicated.

Bidding and proposal requirement. Each bid or proposal submitted to the County in response to an invitation for bids or request for proposals must certify that the bidder or offeror has not been found, by an administrative or judicial body, to have violated a federal or state law against human trafficking.

Contractual requirements. A contract valued above the threshold for an invitation for bids or request for proposals must require the contractor and any subcontractor:

Enforcement.

In this Section, the following terms have the meanings indicated:

It is the policy of the County to make a payment under a contract within 30 days after the day that:

The County is not liable for interest:

A dispute over County liability for interest under this Section must be decided by the Chief Administrative Officer.

If, in the discretion of the Chief Administrative Officer, an award of predecisional interest should be made in order to provide a contractor who has substantially prevailed on a contract dispute with a fair remedy, the Chief Administrative Officer may award predecisional interest in the amount specified in subsection (c). Predecisional interest accrues from the 31st day after the contract dispute has been filed with the Chief Administrative Officer in accordance with regulations.

Dispute submitted. A contractor must submit any dispute arising under a contract to the Director. The using department may submit a dispute arising under the contract to the Director.

Decision by Director. The Director must give the contractor and the using department a written decision approving or denying the dispute in whole or in part within 45 days after receiving the dispute. If the Director does not resolve the dispute within 45 days, the dispute is denied.

Appeal to Chief Administrative Officer.

Appeal to court.

Consolidation of disputes. The Director or the Chief Administrative Officer may consolidate multiple disputes if:

Extension of time. A contractor and the County may agree to extend any time limit in this Section.

Alternative dispute resolution. A contractor and the County may agree to submit a dispute to mediation or binding arbitration at any time instead of using the administrative dispute resolution process in paragraphs (b), (c), and (d).

Definitions. In this Section, the following words have the meaning indicated:

Policy. A covered employee must not be subjected to a personnel action by the Employer for disclosing, to a County official or employee, information involving the solicitation, award, administration, or performance of any contract that the employee reasonably believes is:

Each contract must:

In addition to other authority granted by law, the Director may cancel, terminate, or suspend a contract, in whole or in part, and declare a contractor or subcontractor ineligible for further County contracts based upon a final court judgment in favor of a covered employee for retaliation in violation of this Section. The Director may impose other appropriate sanctions and remedies as provided in applicable regulations or by contract. Each Contractor must bind its subcontractors contractually to comply with this Section.

This Section does not prohibit a personnel action against a covered employee that would have been taken regardless of a disclosure of information described in subsection (b).

Right to protest. Any actual or prospective bidder or offeror who is aggrieved in connection with a formal solicitation may challenge a decision regarding the formal solicitation. A bidder or offeror is aggrieved only if the bidder or offeror can demonstrate that should the protest be sustained, the bidder or offeror may be eligible for the award, or the bidder or offeror may be eligible for the award of costs under subsection (h). The protest must be filed in writing with the Director:

Authority to resolve protests. The Director has the authority to settle or resolve a protest under regulations.

Appeal to Chief Administrative Officer. An actual or prospective bidder or offeror who is aggrieved by the decision of the Director may challenge the decision of the Director. The appeal must be filed in writing with the Chief Administrative Officer within 10 days of the Director's decision.

Hearing. The Chief Administrative Officer may hold a hearing if necessary to resolve an appeal and may designate a hearing officer to take evidence, and make proposed findings and a recommendation.

Decision. If the appeal is not resolved by mutual agreement, the Chief Administrative Officer in consultation with the County Attorney must adjudicate the protest on the record and issue a written decision. The decision must:

Appeal to court. The appellant may appeal the decision of the Chief Administrative Officer to the Circuit Court under the Maryland Rules. The appellant and the County may appeal the decision of the Circuit Court to the Court of Special Appeals.

Award of contract during a protest. In the event of a timely protest or appeal, the Director, after consultation with the head of the Using Department, may award the contract without delay if the Director determines in writing that awarding the contract without delay is necessary to protect the interests of the County.

Entitlement to costs. Any judgement in favor of a protesting bidder or offeror is limited to reasonable bid or proposal preparation costs if:

Debarment. After reasonable notice to the person involved and reasonable opportunity for that person to respond, the Director, after consultation with the Using Department and the County Attorney, may debar a person for cause from consideration for award of contracts. The Director must determine the length of time the contractor is debarred. The length of time should not be less than the time which would be expected to include one or more solicitations for the type of work being provided by the debarred contractor. The debarment time imposed by the Director is not limited by the debarment time imposed by another public entity. The Director may hold a hearing if necessary to determine if a person should be debarred and may designate a hearing officer to take evidence and propose findings to the Director.

Suspension. The Director, after consultation with the Using Department and the County Attorney, may suspend a person from consideration for award of contracts if there is probable cause for debarment. The suspension must not be for more than 6 months.

Causes for debarment or suspension. The causes for debarment or suspension may include:

Decision. The Director must issue a written decision to debar or suspend. The decision must:

The Director must send a copy of the decision to the person involved and the Chief Administrative Officer who may approve, revise, or remand the decision. If the Chief Administrative Officer takes no action within 5 working days, the decision of the Director becomes final.

Appeal to court. The debarred or suspended person may appeal the decision to debar or suspend to the Circuit Court under the Maryland Rules governing administrative appeals. The debarred or suspended person and the County may appeal the decision of the Circuit Court to the Appellate Court of Maryland.

canceled; or

revised to comply with the law.

if the person awarded the contract has not acted fraudulently or in bad faith;

if the person awarded the contract has acted fraudulently or in bad faith;

the Director determines that:

the person agrees to provide the County:

Goods means goods owned by the County.

Surplus Goods means goods no longer of use to the County.

The Director must ensure the management of goods during their entire life cycle.

Except as provided in subsection (f), the Director must dispose of surplus goods. In disposing the surplus goods, the Director may sell the goods by any competitive method which the Director determines is likely to bring the highest return to the County. These methods may include sealed bids, public auction, or trade in or exchange of goods. The Director may sell surplus goods by private sale if the Director determines that open competition is not likely to bring the highest return to the County.

After public notice, the Chief Administrative Officer may give, loan, or sell below fair market value, surplus goods to another public entity if the Chief Administrative Officer determines the disposition would benefit the residents of Montgomery County. Public notice may be given through the Montgomery County Register.

If surplus goods have no resale or scrap value, the Director may dispose of the goods in any responsible manner.

Notwithstanding any other provision of County law, any gun that is surplus must be destroyed.

During a period when the County is under a state of emergency order issued by the Federal, State, or County governments, the Director of the Office of Emergency Management and Homeland Security or the Director’s designee may dispose of goods donated to the County for use in the emergency without using a competitive method if:

The County Executive must adopt regulations to establish a process for the disposition of any real property owned or controlled by the County, other than surplus school facilities and property of nominal value identified in the regulation. The regulations must provide for:

As used in this Section the following words have the meanings indicated:

Unless the County Council waives this requirement under subsection (e)(2)(B), the Executive must not dispose of any property owned or controlled by the County at less than full market value. In case of a sale of property, full market value must be determined by at least one professional appraisal of the property obtained by the Director within 12 months before a declaration is submitted to the Council.

Before seeking Council approval of a declaration of no further need under subsection (e), the Executive must submit to the Council and allow the Council at least 30 days to comment on:

The Executive must adopt regulations to establish a process for disposition of surplus schools. As used in this Section, “surplus school” means any building used at any time as a public school and later conveyed to the County and all or part of the land which constitutes the school site. The regulations must provide for:

The Executive must adopt regulations to establish a process for leasing surplus schools. The regulations would apply in each case after the Council has adopted a reuse resolution which indicates what types of uses are acceptable. At a minimum, the regulations must require:

Notwithstanding those provisions of County Code Section 11B-45 or Regulation 4-99AM referred to in subsection (b) to the contrary, the County Executive may contract with the Yeshiva High School of Greater Washington, Inc. to:

Any agreement authorized by subsection (a) may:

Any agreement authorized by subsection (a) must:

In this article, the term real property means land and improvements to the land.

The County must advertise once each week for not less than 2 weeks in at least one newspaper of general circulation in the County any proposal to acquire real property by purchase, condemnation, or a lease for more than 5 years duration. The advertisement must set forth the price to be paid for the acquisition of the real property, if known, the location of the real property, the name of the owner of the real property, the purpose for which the real property is to be acquired, and the means by which the public may comment on the proposed acquisition.

The County Executive may hold a hearing to take public comment on the proposed acquisition of the real property.

If the owner of the real property which is proposed to be acquired by the County consents, the County must post a sign on the property for at least 10 days before the deadline for receiving public comment in a manner that can be most readily seen by the public. The sign must read substantially as follows: Montgomery County, Maryland proposes to purchase (or lease) this property for (statement of purpose). For date and manner of making public comment, telephone (telephone number).

After considering public comment, the County Executive may approve acquisition of the real property. The County Executive must notify the Council of each acquisition of real property.

This Section applies to real property to be acquired by a rescue squad or fire department if the purchase of the real property is to be funded in whole or in part by County tax funds.

This Section does not apply to:

If goods are needed to perform a contract with the County, a non-profit organization that is exempt from taxation under Section 501(c)(3) of the United States Internal Revenue Code but which is not a public entity may:

Any purchase under subsection (a) is subject to review and approval by the Chief Administrative Officer or designee. A reasonable service fee may be assessed by the County.

As part of the report required under Section 11B-32, the Director must provide information on use of this subsection by non-profit organizations in aggregate dollar amount, types of purchases made, significant purchasers under this subsection (as determined by the Director based on dollar amount), any identified additional cost or cost savings to the County, and any other relevant information.

For purposes of paragraph (a)(1), the authority to purchase goods under a County requirements contract executed before January 1, 1993, may be exercised only if the requirements contract or an amendment to it allows the qualifying non-profit organization to purchase the goods. For requirements contracts executed after January 1, 1993, a qualifying non-profit organization may purchase goods under the contract unless the requirements contract expressly provides otherwise.

Notification to the County Attorney. When for any reason collusion is suspected among any bidders or offerors, a written notice of such suspicion must be transmitted by the Director to the County Attorney.

Retention of all documents. All documents involved in any procurement in which collusion is suspected must be retained until the County Attorney gives notice that they may be destroyed. All retained documents must be made available to the County Attorney or designee upon request.

Gifts. A bidder, offeror, or contractor must not make or offer to make a gift to a public employee which the public employee is prohibited from accepting under Chapter 19A.

Kickbacks.

Unless authorized by law or the Ethics Commission under Chapter 19A, a person while engaged in a procurement matter with the County must not employ or offer to employ a public employee if the duties of the public employee include significant participation in the procurement matter. Public employee, employ, and significant participation, as used in this section, are defined in Chapter 19A.

A contractor providing an analysis or recommendation to the County concerning a particular matter must not, without first obtaining the written consent of the Chief Administrative Officer:

A contractor must not use confidential information obtained in relation to performing a contract except as expressly authorized in the contract or by the Chief Administrative Officer.

If, the Chief Administrative Officer, after finding that the action would not impair the public interest, consents to any action under subsections (b) or (c), the Chief Administrative Officer must promptly notify the Ethics Commission.

A person must not retain another to secure a contract from the County under an agreement that in exchange for the contract, the person will pay another a commission, percentage of the contract, or a contingent fee.

This Section does not apply to:

Any civil and administrative remedies for violations of ethical standards which are codified elsewhere in this Code are not impaired.

The value of anything received by any person for a violation of the ethical standards contained in this Article or in any regulations are recoverable from the person by the County by setoff, attachment, garnishment, or other appropriate legal action.

If a person makes a kickback in connection with the award of a contract, subcontract or order, the County is entitled to presume conclusively that the amount of the kickback was included in the price of the contract, subcontract, or order and ultimately borne by the County. The amount of the kickback may be recovered from the:

Any criminal penalties for violations of ethical standards codified elsewhere in this Code are not impaired.

Any person who violates, or solicits the violation of, any of the provisions of this Article is subject to punishment for a class A violation.

Following a final criminal conviction of a public employee or appointed official for violation of a provision of this Article, the appointing authority must dismiss the convicted public employee or appointed official. Pending completion of any criminal proceedings, the appointing authority may suspend, with or without pay, the accused public employee or appointed official.

Definitions. In this Section, unless the context indicates otherwise, the following terms have the following meanings:

Procurement specification review; use of recycled materials.

Recycled Paper Goal. Procurement of paper and paper products should be structured to attempt to achieve the goal that at least 50% of the total dollar value of paper and paper products purchased by or for County government is recycled paper. To the extent possible, any cooperative purchasing agreement with the Montgomery County Schools or other entity should be similarly structured.

Role of Office of Procurement and Department of Environmental Protection; Executive Regulations; Indirect Purchases.

Report by Office of Procurement. The Director, in consultation with the Director of Environmental Protection, must submit a report to the County Council and County Executive by September 30 each year about implementation of this Section for the prior fiscal year. The report must describe County government efforts to encourage the maximum purchase of goods containing recycled materials under this Section and recommend measures that could increase County purchases of goods containing recycled materials. The report should specifically provide:

Minority owned businesses have experienced the effects of discrimination in the awarding of County contracts and subcontracts. The effect has been to:

Adoption of the minority owned business purchasing program is intended to remedy the effects of discrimination on minority owned businesses.

A goal of awarding an appropriate percentage of the dollar value of County contracts to minority owned businesses in proportion to their availability to perform work under County contracts is a reasonable and appropriate means to remedy discrimination against minority owned businesses.

The County should actively recruit all minority owned businesses to provide goods, construction, and services to the County. To help achieve this goal, the County should:

A five-year period is a reasonable time to continue the minority owned business purchasing program before evaluating it.

This article does not give any person, including a minority owned business, any right or status, including standing, to challenge the award of a contract or subcontract under the County procurement system. The provisions of this article are enforceable only through the oversight function of the Chief Administrative Officer and the County Council.

the County certified the entity as a minority owned business before this Act took effect [December 10, 1997]; and

the entity continues through March 31, 1998, to meet the criteria for a minority owned business in effect before this Act took effect [December 10, 1997].

Minority owned business means, unless the context indicates otherwise, any legal entity that:

Relevant geographic market area means the geographic market area identified by the County Executive in the most recent report that evaluates the need to continue the program and is issued in accordance with Section 11B-61(b).

Socially or economically disadvantaged group means a group expressly identified as eligible to control a minority business enterprise under the State procurement law. For purposes of this Article, disabled owned businesses and not-for-profit entities organized to promote the interests of persons with a disability are a single group.

the County certified the entity as a minority owned business before this Act took effect [December 10, 1997]; and

the entity continues through March 31, 1998, to meet the criteria for a minority owned business in effect before this Act took effect [December 10, 1997].

The Chief Administrative Officer must structure the County's purchasing program to attempt to achieve the goal so that the percentages of the dollar value of purchases identified in subsection (b) from minority owned businesses who have been discriminated against are proportional to the availability of those businesses to perform work under County contracts in the County’s relevant geographic market area as determined by the most recent report that the County Executive must submit to the County Council under Section 11B-6(b).

The purchases subject to the minority owned business goals are any formal or informal procurement, including any contract modification or renewal, valued over $5,000.

The minority owned business goals do not apply to:

the County certified the entity as a minority owned business before this Act took effect [December 10, 1997]; and

the entity continues through March 31, 1998, to meet the criteria for a minority owned business in effect before this Act took effect [December 10, 1997].

By September 30 of each year, the Chief Administrative Officer must set for the following calendar year percentage goals of the dollar value of purchases subject to this Article for each socially or economically disadvantaged group. The goals must correspond to the availability of that group by source selection method and purchasing category in the relevant geographic market area as determined by the most recent report that the County Executive must submit to the County Council under Section 11B-61(b) to perform work under County contracts. The Chief Administrative Officer must set separate goals for each socially or economically disadvantaged group in the County’s purchases of goods, construction, professional services, and other services. The Chief Administrative Officer must not set goals for a socially or economically disadvantaged group unless the Chief Administrative Officer determines that the value of purchases made during the previous fiscal year from that group in each category of purchases under a particular source selection method, compared with the availability of that group to perform work in that category, shows a significant under-utilization of the group.

The Chief Administrative Officer must adopt procedures to certify and decertify minority owned businesses.

The Office of Procurement must publicly notify businesses of prospective procurement opportunities.

For those procurements where a goal has been set under subsection (a), the Office of Procurement must encourage minority owned business participation in procurement. These activities should include:

The Office of Procurement must offer procurement system education and information to minority owned businesses for whom a goal has been set under subsection (a).

The Office of Procurement must offer referrals to resources such as technical consultants, sureties, and financing sources.

The Director must review procurement requirements to remove artificial barriers to competition.

The Director may waive, or exempt a business from, minority owned business contracting requirements under appropriate circumstances described in regulations.

The Director may require each contractor and minority owned business that participates in the minority owned business purchasing program to provide information concerning utilization by the contractor of minority owned businesses in private and government contracts.

The Chief Administrative Officer must ensure that all contract administrators receive appropriate guidance in implementing this article.

the County certified the entity as a minority owned business before this Act took effect [December 10, 1997]; and

the entity continues through March 31, 1998, to meet the criteria for a minority owned business in effect before this Act took effect [December 10, 1997].

The Chief Administrative Officer must report to the County Council, by September 30 of each year for the previous fiscal year:

By July 1, 2029, the Director of the Office of Procurement must submit a report to the County Council evaluating the need to extend the minority owned business purchasing program.

the County certified the entity as a minority owned business before this Act took effect [December 10, 1997]; and

the entity continues through March 31, 1998, to meet the criteria for a minority owned business in effect before this Act took effect [December 10, 1997].

the County certified the entity as a minority owned business before this Act took effect [December 10, 1997]; and

the entity continues through March 31, 1998, to meet the criteria for a minority owned business in effect before this Act took effect [December 10, 1997].

A person must not:

A violation of this Section:

the County certified the entity as a minority owned business before this Act took effect [December 10, 1997]; and

the entity continues through March 31, 1998, to meet the criteria for a minority owned business in effect before this Act took effect [December 10, 1997].

the County certified the entity as a minority owned business before this Act took effect [December 10, 1997]; and

the entity continues through March 31, 1998, to meet the criteria for a minority owned business in effect before this Act took effect [December 10, 1997].

has its principal place of business or non-profit operations in the County;

in the case of a for-profit business, is independently owned and operated;

is not a subsidiary of another business or entity; and

meets criteria, size limits, and gross sales amounts established by method 2 regulations.

are verified as having served on active duty in the armed forces of the United States, other than for training and were discharged or released under conditions other than dishonorable; and

control the management and daily operations of the business.

Except as provided in Subsection (c), this Article applies to all procurements by a using department.

Minimum Requirements.

The total dollar value of procurements by a using department does not include:

A using department’s decision to exclude a procurement under Subsection (c)(6) must be approved by the Director.

Established. There is established a Veteran-Owned Local Small Business preference points program for County procurements.

Eligibility. To be eligible for Veteran-Owned Local Small Business preference points, a business must affirm and provide supporting documentation to the Director to show that it is a Veteran-Owned Local Small Business as defined in Section 11B-65. The Director may investigate and verify the information provided on the application, as necessary.

Certification. Veteran-Owned Local Small Business preference points must only be applied to a Local Small Business that has a valid Veteran-Owned Small Business (VOSB) or Service-Disabled Veteran-Owned Small Businesses (SDVOSB) certificate from the U.S. Small Business Administration or the U.S. Department of Veterans Affairs’ Center for Verification and Evaluation.

Application of Preference Points to competitive sealed proposals. For any request for proposals issued under Section 11B-10 that has been designated for a Local Small Business Reserve, the Director must include an evaluation factor awarding additional points for a proposal from a Veteran-Owned Local Small Business worth five percent of the total available points.

Waiver. The Director may waive a bid or proposal preference under this Section in a solicitation if the Director finds that a preference would result in the loss to the County of Federal or State funds.

Any procurement by a using department of goods, services, or construction is eligible for designation for the local small business reserve by the using department director or a designee, except any procurement that would be excluded under Section 11B-66(c).

A solicitation for a procurement that has been designated for a local small business reserve must be published in the same manner as required for other solicitations under Article III.

The procurement officer of a designated procurement unit must award a procurement contract designated for a local small business reserve to the responsible local small business that submits an offer that:

A business must affirm and provide supporting documentation to the Director to show that it is a local small business as defined in Section 11B-65(a). The Director may investigate and verify the information provided on the application.

A local small business is no longer eligible for a procurement under this Article if the business has been awarded $10 million in the aggregate in County contracts and at least 10 separate contracts, as either a prime contractor or a subcontractor, beginning January 1, 2006. The Director must provide written notice to the business when it is no longer eligible.

The Chief Administrative Officer may waive the application of this Article to a specific contract if the Chief Administrative Officer finds that the application of this Article conflicts with the overall objectives and responsibilities of the Chapter. The Chief Administrative Officer must keep records on the number of waivers issued and the reason for each waiver. This information must be reported to the Council in the annual report on the Program under Section 11B-69(b).

This Article does not give any person, including a local small business, any right or status, including standing, to challenge the award of a contract or subcontract under the County procurement system. This Article is enforceable only through the oversight function of the Chief Administrative Officer and the Council.

The County Executive must adopt method 2 regulations to implement this Article. The regulations must:

Each using department must comply with the regulations.

By October 30 each year, each using department must submit to the Director a report on the number, type, and dollar amount of contracts, including direct purchases, issued under this Article.

By November 30 each year, the Director must report to the Council on the Local Small Business Reserve Program. This report must include the number, type, and dollar amount of contracts, including direct purchases, awarded under this Article during the preceding fiscal year, the number, type, and dollar amount of each waiver, information about how these numbers have changed from the preceding fiscal year, and the extent of outreach efforts.

A person must not:

A violation of this Section:

Adversely affect means:

Public employee means:

This Article applies to a service contract that the Director finds will, if awarded:

This Article does not apply to:

This Article does not apply to or limit the authority of a Department or Office Director to abolish a bargaining unit position or conduct a reduction-in-force.

This Article does not apply to or limit any contract for:

The Chief Administrative Officer may certify that the Director may solicit a service contract under this Article if the using department has:

The using department must compare at least the following items in its cost analysis:

Noncompliance with this Article does not invalidate a contract award or proposed contract award that the County has otherwise validly awarded or issued.

A public employee who is adversely affected by noncompliance with this Article may file an action in the Circuit Court for the County or the District Court of Maryland, depending on the amount in controversy. If the Court enters a judgment in favor of the employee, the County must reimburse the employee for any actual loss the employee incurred.

Definitions. In this Article the following terms have the following meanings:

Regulation. The County Executive must adopt a regulation under Method 2 that establishes:

Certification. The Director must certify a business that meets the standards established by regulation as a Small Business With Health Insurance. A false statement on an application for certification is a Class A violation.

Role of Office of Procurement and Department of Health and Human Services.

Denial or revocation of certification. The Director may refuse to certify a business under this Section, and may suspend or revoke a certification issued under this Section, after a hearing for which reasonable notice has been given, if the business or applicant does not meet the standards for certification as a Small Business With Health Insurance.

Notice and opportunity for hearing.

Appeals. Any person aggrieved by the denial, suspension, or revocation of any certification under this Section may seek judicial review under the Maryland Rules for review of administrative decisions in the Circuit Court and the Court of Special Appeals.

Report by Office of Procurement. The Director of the Office of Procurement, after consulting with the Director of Health and Human Services, must submit a report to the County Council and County Executive by September 30 each year after implementation of this Section for the prior fiscal year. The report should include:

a supplier of goods who:

a supplier of services who does not regularly maintain the capability, capacity, training, experience, and applicable regulatory licensing to directly perform the principal tasks of a contract with the County and must provide the principal tasks through a subcontract with a third party.

Local Business Subcontracting Goals. This subsection establishes the following Local Small Business subcontracting goals:

Applicability. The Local Business Subcontracting Program goals apply to each High Dollar Value Contract except:

The Director, at the time of a solicitation, must publish notification to businesses when the solicitation may result in a High Dollar Value Contract.

The Director must encourage Local Business participation in applicable High Dollar Value Contract opportunities by:

A Contractor’s failure to satisfy the requirements of the Local Business Subcontracting Program, including a failure to submit documentation required by the Director to show compliance, may constitute a breach of the contract for which the County may withhold payment or impose liquidated damages, in addition to any other remedies available to the County.

The Director may waive all or part of the Local Business subcontracting requirements for a specific contract under appropriate circumstances as established by Executive Regulation.

The Director may require each Contractor and Local Business that participates in the Local Business Subcontracting Program to provide information concerning utilization by the Contractor of Local Businesses in a High Dollar Value Contract.

monitoring procedures to assist a contract administrator and the Local Business Program Manager to determine compliance by a Contractor with the Local Business Subcontracting Program;

certification requirements for a business to qualify as a Local Business under this Article; and

procedures to certify or decertify a Local Business.