The County government finds that the public interest will be served by encouraging businesses to locate and remain in Prince George's County through the provision of local bid and proposal preferences and participation requirements for County-based businesses and County-based small businesses in the award of contracts in direct government procurement.
The County government finds that the local bid and proposal preferences and local participation requirements in direct government procurement prescribed in Subdivision 1 of this Division will serve the public interest because the resulting growth and development of County-based businesses and County-based small businesses will have a significant, positive impact on the economic health of the County by, among other things, increasing the County's commercial tax revenue and improving access to good paying careers for local residents. This will help achieve the public interest objective of diversifying and enlarging the County's tax base that funds vital public services, which is currently overly reliant on residential property taxes.
The County government finds that the local bid and proposal preferences and local participation requirements in direct government procurement prescribed in Subdivision 1 of this Division will serve the public interest objective of rewarding those businesses which contribute the most to the County's economy, especially County-based small businesses, which are the most likely businesses to create jobs for County residents.
The County government finds that because of the lack of local career opportunities for County residents, only forty percent (40%) of the jobs in the County are held by County residents (sixty percent (60%) are held by non-County residents) and approximately sixty percent (60%) of the County's resident workforce works outside of the County on a daily basis, the highest percentage of out-migration of a local workforce of any jurisdiction in the Washington DC Metropolitan Statistical Area (MSA), which:
Leads to insufficient and inconsistent daytime consumer spending in local businesses, including retail and professional services, which hurts the County's commercial tax base; and
Causes longer commute times for local residents and contributes to worsening traffic congestion, which is among the worst in the nation; expensive road repair and maintenance costs to county taxpayers; and reduced time for parental supervision of county school-aged children by working parents.
The County government finds that the lack of local career opportunities for County residents contributes to the County having the highest poverty and unemployment rates among suburban jurisdictions in the Washington DC MSA and having the highest foreclosure and uninsured rates of any jurisdiction in the State of Maryland. The lack of nearby career opportunities limits access to employment for low-to-moderate income County residents who have more limited transportation options.
The County government finds that too few of the existing career and business opportunities related to government funded projects benefit County residents, which contributes in part to the overall lack of employment and business opportunities in the County for County residents, particularly low-to-moderate income residents, County-based businesses, and County-based small businesses. Further, the County government finds that from 2000 to 2011, there was little to no new net job creation in the County, despite nearly an 8% increase in the County's population.
The County government finds a substantial reason and basis for the County resident hiring goals prescribed in Subdivision 2 of this Division, including the goal that at least fifty-one percent (51%) of the work hours on direct government procurement, be worked by County residents, because the County resident hiring goals will serve the County's public and proprietary interest by:
Reducing the out-migration of the local workforce, which will increase local consumer spending in county businesses and increase the County's commercial tax base;
Helping reduce the County's worsening traffic congestion, road repair costs, and commute times for working parents; and
Increasing access to nearby career opportunities for County residents with jobs paying a prevailing wage and likely to include health and other benefits, which will reduce the County's unemployment, uninsured, foreclosure, and poverty rates and assist County residents in affording the high cost of living in the Washington DC MSA.
The County government finds that the County resident hiring goals prescribed in Subdivision 2 of this Division, including the goal that at least fifty-one percent (51%) of the work hours on direct government procurements be worked by County residents, will not unduly burden or unreasonably restrict access to employment in the County for out of state residents. Because Subdivision 2 of this Division only requires a demonstration of "best efforts" to meet the local hiring goals (rather than requiring employers to meet the local hiring percentages themselves), in addition to including the appropriate exceptions, the provisions of Subdivision 2 of this Division are not unnecessarily broad and are sufficiently flexible and tailored to achieve the public interest objectives outlined in this Section.
The County government finds that County-based minority business enterprises undergo extensive certification review through their existing minority business enterprise certification procedures, which establish their principal places of operation and typically contain size of business restrictions, like the Maryland Department of Transportation (MDOT) Minority or Disadvantaged Business Enterprise (MBE/DBE) Program, and which are comparably rigorous to County-based business and County-based small business certification under this Subtitle. It is in the public interest to reduce the redundancy and regulatory burden of County-based business and County-based small business certification procedures for businesses that have already been approved for minority business enterprise certification.
A waiver from the participation requirements set forth in this Division, in accordance with the waiver procedures prescribed in this Division, shall be granted for contracts as follows:
A contract or procurement valued five hundred thousand dollars ($500,000) or more shall be subject to a written waiver from the Purchasing Agent that is approved by the Chief Administrative Officer or the Chief Administrative Officer's designee and will not be subject to the participation requirements in Division 7 Economic Development in this Subtitle;
A contract or procurement with a total value greater than twenty-five hundred dollars ($2,500) and less than five hundred thousand dollars ($500,000) shall be subject to a written waiver by the Purchasing Agent or the Purchasing Agent's designee and will not be subject to the participation requirements in Division 7 Economic Development of this Subtitle.
For a contract or procurement subject to Council approval under Section 819 of the County Charter, a waiver of any of the requirements of Division 7 of this Subtitle for such a contract or procurement shall also require Council approval.
Where a waiver is proposed in accordance with this Section, the Purchasing Agent or the Purchasing Agent's designee shall consider in the written waiver whether a Mentor-Protégé Program Requirement should be included in the contract or procurement.
The Purchasing Agent shall provide to the Clerk of the Council for distribution to the members of the County Council, a quarterly written summary of the waivers granted in accordance with this Section every three months detailing the contract value, contract awardee, address of the contract awardee's principal place of business, and industry area of the contract for each waiver granted in the prior 3 month period.
In this division the following terms shall have the denoted meanings:
Agency shall mean county agency, county department, and county office or any agency, department, or office established in-whole or in-part under the authority of the Charter or county law.
Procurement shall mean the process of: (1) leasing real or personal property as lessee; or (2) buying or otherwise obtaining supplies, services, construction, construction related services, architectural services, engineering services, or services provided under an energy performance contract.
Procurement contract shall mean an agreement in any form entered into by an agency for procurement.
Procurement officer shall mean an individual authorized by an agency to: (1) enter into a procurement contract; (2) administer a procurement contract; or (3) make determinations and findings with respect to a procurement contract.
Procurement related employee shall mean contract service officer, procurement assistant, or procurement officer.
On or before May 1 of each year, each agency shall publish on its agency's website its procurement forecast listing all known and anticipated procurements to be made by the agency in the upcoming fiscal year; to include, an estimate of the specific supplier diversity requirements and goals for each procurement.
When an agency is determining a procurement officer's evaluation or whether a procurement officer is eligible for a merit increase or performance-based promotion for the procurement officer or procurement related employee responsible for county procurement on behalf of the agency, the agency shall consider the efforts of the procurement officer or procurement related employee to assist the agency in meeting the supplier diversity and local hiring goals and requirements for the agency's procurements in accordance with this Subtitle.
At the discretion of an Agency or department director, if an agency does not meet an agency supplier diversity goal set pursuant to this Subtitle, the agency's procurement officer or procurement related employee procuring goods and services on behalf of that agency:
May not receive any merit increase or promotion based on their performance during any fiscal year in which the goal is not met and there is no improvement over the previous fiscal year toward meeting that goal; and
If there is no improvement toward meeting the goal over three (3) consecutive fiscal years, may have their employment with the agency terminated or be reassigned to a position that does not include involvement with the agency's procurement activities, provided that this does not preclude an agency from taking these employment actions prior to the three fiscal year period.
There is hereby established and created a special purpose non-lapsing fund to be known as the "Local Business Childcare Grant Fund."
In his Subdivision the following terms shall have the denoted meanings.
Childcare Contribution means an employer's contribution to an employee's dependent care flexible spending account under section 125 of the Internal Revenue Code.
Director means the Director of the Office of Finance or the Director's designee.
Eligible Employee means an employee of a Local Business who is Resides in the County.
Fund means the Local Business Childcare Grant Fund.
Household Incomes means the income of the employee and that person's spouse.
Local Business shall mean both non-profit and for-profit entities that:
has its Principal Place of Business in the Prince George's County; and
has fifty (50) employees or less full-time employees.
Principal Place of Business means the head office of the business within which the principal financial functions and operational control of the activities referred to in this subtitle are exercised that includes a physical structure, office, or suite, but does not include a post office box, a temporary job site, or project location.
Program means the Local Business Childcare Grant Program established in this subtitle.
Reside(s) means to be physically present and to maintain a permanent place of abode in the County for an average of no fewer than four (4) calendar days and nights per week.
Establishment of Program. Subject to appropriation, the Director shall create and administer a Local Business Childcare Grant Program to assist Local Businesses that provide childcare contributions for the benefit of Eligible Employees. their employees.
Eligibility. The Director, based upon information submitted by the applicant for assistance, shall find that:
the applicant owns a Local Business; and
the Local Business provides childcare contributions to Eligible Employees. its employees.
Grant Agreement. In order to receive financial assistance from the Fund under the Program, a Local Business shall enter into a grant agreement with the County, which shall obligate and commit it to:
the County's right to audit financial records of the Local Business;
the Local Business' reporting obligations to the Director; and
the Local Business' obligation to remit to the County any unused or improperly used Funds.
Financial assistance. The Director may award a grant from the Fund to an eligible Local Business under paragraph (b) of this section to an Eligible Employee. The amount of the grant shall not exceed fifty percent (50%) of the annual amount(s) of childcare contributions paid by the Local Business and it shall be used solely for the purpose of providing childcare contributions to Eligible Employees employee who earn gross incomes of less than forty-two thousand dollars and zero cents ($42,000.00) annually or have combined Household Incomes of less than eighty-seven thousand dollars and zero cents ($87,000.00) annually, whichever is greater.
Regulations. The Director shall implement methods, procedures, and regulations to implement this Section. The regulations shall specify the application procedures and eligibility criteria for a grant to a Local Business under the Program.
Reports. On or before March 31 of each year, the Director shall report to the County Council on the activities of the Program. The report shall include:
the number of local businesses participating in the Program;
the number and dollar amount of grants made; and
an evaluation of the impact of the Program on economic development within the County.
For any procurement that is greater than One Million Dollars ($1,000,000) in total value for which a County agency or the County government secures competitive bids or proposals the Purchasing Agent shall require the following:
At least fifty percent (50%) certified County-based small business, County-based minority business enterprise, and/or Locally-owned and Operated Business participation, with a floor of fifteen percent (15%) County-based minority business enterprise participation; provided, that the costs of materials, goods, and supplies shall not be counted towards the fifty percent (50%) participation requirement, unless such materials, goods, and supplies are purchased from County-based small businesses, County-based minority business enterprises, and/or Locally-owned and Operated Businesses; and
A bid or proposal responding to a solicitation shall be deemed nonresponsive and shall be rejected by the Purchasing Agent if it fails to meet the fifty percent (50%) minimum certified County-based small business, County-based minority business enterprise, and Locally-owned and Operated Business participation requirement in Paragraph (1) of this Subsection, unless the participation requirement is waived pursuant to Section 10A-159.01.
Any existing procurement contract or agreement for which a County agency or the County government secured competitive bids or proposals, including any existing multiyear contract or extended contract that does not include at least fifty percent (50%) minimum certified County-based small business, County-based minority business enterprise, and/or Locally-owned and Operated Business participation as prescribed in this Subsection at the time of any contemplated exercise of an option, extension, or renewal, including automatic extensions or renewals (e.g. "evergreen" contracts or agreements), shall not be renewed or extended unless the participation requirement is waived pursuant to Section 10A-159.01.
If the Purchasing Agent determines in writing that there are insufficient responsible County-based small businesses, County-Based Minority Business Enterprise, and/or locally-owned and operated businesses to completely fulfill the requirement of Paragraph (1) of Subsection (a) for a particular procurement or if the requirement would result in the loss of federal or state funds or grants, the Purchasing Agent may waive the participation requirements of Division 7 pursuant to and subject to Section 10A-159.01.
Disparity Study Implementation
On a procurement by procurement basis, the Purchasing Agent or the Purchasing Agent's designee shall establish an overall Minority Business Enterprise ("MBE") goal and MBE goals for the contract, consistent with the findings of availability and disparities in the most recent Prince George's County Utilization and Availability Study (hereinafter "County Disparity Study"), subject to paragraph (2), below.
For every procurement, the process for establishing an overall MBE goal and MBE subgoals shall be as follows:
The Purchasing Agent or the Purchasing Agent's designee shall determine whether the procurement exceeds $250,000 in value;
The Purchasing Agent or the Purchasing Agent's designee shall determine whether the procurement will include subcontracting;
If the procurement exceeds $250,000 in value and will include subcontracting, the Purchasing Agent or the Purchasing Agent's designee shall include an overall MBE goal and MBE subgoals in accordance with the "Disparity Study Recommended MBE Goals and MBE Subgoals" set forth in subparagraph (E), below, unless the number of certified firms that are MBE firms and/or firms within the recommended MBE subgroup that are available to perform the work on the contract is less than three (3). If the procurement exceeds $250,000 in value and will include subcontracting, the Purchasing Agent or the purchasing agent's designee shall include an overall MBE goal and MBE subgoals in accordance with the "Disparity Study recommended MBE goals and MBE subgoals" set forth in subparagraph (e), below, unless the number of certified firms that are MBE firms and/or firms within the recommended MBE subgroup that are available to perform the work on the contract is less than three (3). If the Purchasing Agent or Purchasing Agent's designee determines not to include an overall MBE goal and/or the recommended MBE subgoals in accordance with the "Disparity Study Recommended MBE goals and MBE subgoals" set forth in subparagraph (e), below, the determination shall be in writing and must be approved in advance by the director of central services.
MBE waiver. If a bidder or offeror is unable to meet the overall MBE goal and/or any MBE subgoals established for a contract, the bidder or offeror may request a waiver from the Purchasing Agent or the Purchasing Agent's designee and submit documentation demonstrating that it made best efforts to meet the overall MBE goal and MBE subgoals. "Best efforts" shall be defined in procurement regulations with the approval of the Purchasing Agent. Such a waiver determination must be in writing and may be granted only with the approval of the Purchasing Agent.
Disparity Study Recommended MBE goals and MBE subgoals. The "Disparity Study Recommended MBE goals and MBE subgoals" are as follows:
for any construction or public works contracts or procurements, the MBE goal is 43%, the AABE subgoal is 23%, and the AAPIBE subgoal is 7%.
for any architectural and engineering contracts or procurements, the MBE goal is 33% and the AABE subgoal is 16%.
for any professional services contracts or procurements, the MBE goal is 29%, the AABE goal is 15%, and LBE goal is 5%.
for any other services contracts or procurements, the MBE goal is 34% and the LBE goal is 6%.
for any goods and supplies contracts or procurements, the MBE goal is 22% and the LBE goal is 4%.
An MBE goal and/or an MBE subgoal is calculated as a percentage of the county's expenditures on the overall contract or procurement. MBE subgoal expenditures are a subset of overall MBE goal expenditures for a contract or procurement and count towards achieving the overall MBE goal for that contract or procurement.
Failure to apply the applicable provisions of this subtitle to a procurement award shall render the procurement award and/or contract or agreement void.
On a case by case basis, for any procurement subject to the requirements of Subsection (a) of this Section, the Purchasing Agent may require more than fifty percent (50%) certified County-based small business, County-based minority business enterprise, and Locally-owned and Operated Business participation if the Purchasing Agent determines that there is a sufficient number of County-based small businesses, County-based minority business enterprises, or Locally-owned and Operated Businesses to justify a higher than 50% certified County-based small business, County-based minority business enterprise, and/or Locally-owned and Operated Business participation requirement.
The Prince George's County Supply Schedule Program. There is established a Prince George's County Supply Schedule (PGCSS) program, a sheltered-market procurement program shall be awarded only to County-based small businesses. The PGCSS program may consist of multiple award schedules or other procurement programs established by the Purchasing Agent.
Pursuant to Section 10A-138, the Purchasing Agent shall propose to the County Council the PGCSS a list of North American Industry Classification System (NAICS) industry classifications or comparable categories of goods or services that shall only be available for bid or award among County-based small businesses, County-based minority business enterprises and/or County-based businesses during the next fiscal year, based on the capacity and prevalence of County-based small businesses, County-based minority business enterprises and/or County-based businesses within those industry categories. The proposed PGCSS is subject to approval by resolution of the County Council or the PGCSS proposed by the Purchasing Agent shall go into effect for the next fiscal year.
A PGCSS contract may be awarded by:
Any source selection method authorized by this Subtitle;
A contract with a contractor who maintains a price agreement or schedule with any federal agency so long as the contract does not authorize a price higher than is contained in the contract between the federal agency and the contractor; or
A contract with a contractor who agrees to adopt the same pricing schedule for the same goods or services as that of a contractor who maintains a price agreement or schedule with any federal agency if the contract does not authorize a price higher than is contained in the contract between the federal agency and the contractor.
The Purchasing Agent or the Purchasing Agent's designee may issue a waiver subject to 10A-159.01.
If the Purchasing Agent determines there is a sufficient number of responsible firms in the respective procurement's industry area(s), the Purchasing Agent may restrict any competitive procurement subject to this Subtitle for solicitation and award to prime bidders or prime proposers that are County-based small businesses.
the acquisition of proprietary information technology goods and services shall not be subject to the requirements of Division 7 of this subtitle.
Reserved.]
For any procurement subject to Section 10A-112, 10A-113 or 10A-114 of this Subtitle with a total value equal to or less than One Million Dollars ($1,000,000), each County agency or the Purchasing Agent shall set-aside the procurement only for award to County-based small businesses, subject to Paragraphs (1)-(3) of this Subsection.
A County agency shall not be required to set aside a procurement for County-based small businesses under this Subsection if there are not at least two (2) County-based small businesses that can sufficiently provide the services or goods which are the subject of the procurement. For procurements subject to 10A-112, a County agency may also refuse to set aside a procurement for County-based small businesses under this Subsection if the agency determines that the lowest County-based small business bid is for a price that is twelve percent (12%) or more above the likely price on the open market.
Only if a County agency satisfies the requirements of Paragraph (1) of this Subsection and receives written approval from the Purchasing Agent may the County agency thereafter award the procurement in the open market, subject to all of the other applicable preferences prescribed in this Subdivision.
Any existing contract or agreement, including any existing multiyear contract or extended contract, for a procurement funded by a County agency or the County government with a total value equal to or less than One Million Dollars ($1,000,000) that was not set-aside for County-based small businesses or County-based businesses pursuant to the requirements of this Section, at the time of any contemplated exercise of an option, extension, or renewal, including automatic extensions or renewals (e.g. "evergreen" contracts or agreements), shall not be renewed or extended. This Paragraph shall not apply to a contract or agreement for a procurement with greater than fifty (50%) certified County-based small business, County-based minority business enterprise, and/or Locally-owned and Operated Business participation.
The Purchasing Agent may waive the requirements of Subsection (c) of this Section for a procurement if the Purchasing Agent certifies in writing that such a requirement would result in the loss of federal or state funds, subject to the requirements of Section 10A-159.01.
Local Diverse Supplier Prime Contractor Program.
The Purchasing Agent shall reserve at least 20% of all construction-related procurements awarded by all units of the County Government, other than procurements for roads and bridges, solely for bids, proposals, and awards for prime bidders, prime proposers, and prime contractors that are:
Locally Owned and Operated Businesses; or
County-Based Minority Business Enterprises.
Reporting, Exemptions, and Public Notice.
Reporting. As part of the annual report to the County Council and County Executive required under Section 10A-176, the Purchasing Agent shall provide:
a list of procurements selected to be subject to the requirements of this Subsection during the fiscal year; and
a summary and analysis of the outcome of the awarded procurements reserved in accordance with this Subsection for the previous fiscal year.
Exemption. If the Purchasing Agent determines that a procurement listed in accordance with Subparagraph (A), above, is no longer suitable for reservation in the Local Diverse Supplier Prime Contractor Program accordance with this Subsection, the procurement can be removed from reservation, provided that the Purchasing Agent identifies one or more additional procurements that replace the procurement value of the exempted procurement, which shall be included in the reserved procurements for that fiscal year in accordance with this Subsection.
Public notice. Any solicitations for procurements reserved for the Local Diverse Supplier Prime Contractor Program in accordance with this Subsection shall be made publicly available without cost or subscription on a website maintained by the Office of Procurement at the time of solicitation of bids or proposals.
Each County agency, including, but not limited to, each County agency that procures in whole or in part through the Office of Procurement, shall use its "best efforts" to exercise its procurement authority so as to meet, on an annual basis, the goal of procuring at least fifty percent (50%) of the dollar volume of its goods and services, including, but not limited to, construction goods and services, to County-based businesses and at least thirty percent (30%) to County-based small businesses; and
The dollar volume referenced in Subsection (a) of this Section shall be based on the expendable budget of the County agency.
If a County agency fails to meet any of the goals set forth in Subsection (a) of this Section or otherwise fails to comply with this Division, the County Executive, or the County Council by resolution, may require that a portion of the agency's procurements be made part of a set-aside program for County-based businesses and/or County-based small businesses. A County agency in violation of this Division may also be subject to a temporary or permanent reduction in its proposed budget allocation in the annual County budget process.
As a condition of receiving funding from the County government, a non-County agency or entity that receives more than fifty percent (50%) of its annual budget in the most recent fiscal year from funds received from or administered by a County agency or the County government shall comply with the same goals and requirements as a County agency under Subsections (a), (b) and (c) of this Section, unless the non-County agency or entity certifies in writing to the County Council and the County Executive that such compliance would violate federal or state law.
Annual County Agency Procurement Forecast. By July 1 of each year, the Purchasing Agent shall publish on a central designated website a forecast of procurement opportunities for each County agency for the next fiscal year. Each County agency shall expeditiously comply with any information requests from the Office of Procurement in the collection of information to comply with this Subsection. The Purchasing Agent shall provide a courtesy electronic copy of the County Agency Procurement Forecast to a designated representative of the Prince George's Chamber of Commerce, Greater Prince George's Business Roundtable, and the Prince George's Community College.
All procurements under micro-purchase, small purchase, or simplified procurement procedures shall comply with County-based small business participation requirements, set-asides, certification requirements, and local business goal provisions as set out in Section 10A-161 and Section 10A-162, or other relevant sections.
Except as provided for in Subsection (h), below, a business that seeks to be certified as a County-based business shall make application to the Purchasing Agent on a form provided by the Purchasing Agent. Such an application shall not be approved by the Purchasing Agent unless the business:
Requires that its chief executive officer and the highest level managerial employees of the business maintain their offices and perform their managerial functions in the County;
Files a written certificate that the business is not delinquent in the payment of any County taxes, charges, fees, rents or claims;
Files a copy of a federal tax return filed with the Internal Revenue Service establishing that the business has continuously operated within Prince George's County within the preceding twelve (12) months;
Files documentation showing that during the preceding twelve (12) months the business has continuously maintained a valid business license or permit;
Files documentation showing that during the preceding twelve (12) months the business has continuously occupied an office within the County, as its principal place of operation; and
Files documentation showing that:
More than fifty percent (50%) of the business' full-time employees are County residents; or
The owners of more than fifty percent (50%) of the business are County residents; or
More than (fifty percent) 50% of the assets of the business, excluding bank accounts, are located in the County; or
More than (fifty percent) 50% of the total sales or other revenues of the business are derived from transactions of the business in the County.
Except as provided for in Subsection (h), below, a business that seeks to be certified as a County-based small business shall make an application to the Purchasing Agent on a form provided by the Purchasing Agent. Such an application shall not be approved by the Purchasing Agent unless:
The business meets the requirements of Section 10A-163(a); and
The business meets the definition of "small business" pursuant to the Code of Maryland Regulations ("COMAR") 21.01.02.01(80); or
The business meets the federal definition of "small business concern" in Part 121 of Title 13 of the Code of Federal Regulations.
Certification shall be valid for a three-year period.
Once an application for certification is approved under this Section by the Purchasing Agent, a copy of the approved application shall be expeditiously transmitted to the County Auditor.
A business whose application is approved for certification as a County-based small business is automatically certified as a County-based business.
Nonprofit entities that satisfy the applicable requirements of this Section are eligible to be certified as County-based businesses and County-based small businesses.
A business that is certified as a County-based business or County-based small business shall meet the requirements of certification under this Section continuously after the date the business's application for certification is approved by the Purchasing Agent or the business's certification shall be void. In such instances, the business must re-apply pursuant to the requirements of this Section to be certified as a County-based business or a County-based small business.
Reducing redundant certifications.
A business that is certified as a minority business enterprise (MBE) pursuant to Section 10A-101(a)(26), whose certification indicates that the business's principal address, principal place of operation, or domicile is within Prince George's County, Maryland, shall be automatically deemed by the Supplier Development and Diversity Division and the Purchasing Agent to be a certified County-based minority business enterprise and County-based business under this Subtitle without further application or certification.
Valid MBE or DBE certification status in accordance with this Subsection shall satisfy the documentation requirements for any County-based business or County-based small business certification renewal for County-based minority business enterprises.
Validity during renewal review. At the time of any certification renewal, an existing certification authorized by this Division shall continue to be valid during the pendency of review of the business entity's certification by the Supplier Development and Diversity Division or the Office of Procurement, provided that the business submitted the required renewal documents and other information, and such documents were received by the Supplier Development and Diversity Division or the Office of Procurement on or before the expiration date of the business's certification. The Supplier Development and Diversity Division or the Office of Procurement shall request in full all documents and information required for renewal in writing to the certified business entity at least ninety (90) days prior to the expiration date of the business entity's certification or the expiration date shall be extended until ninety (90) days after the complete written request is sent to the subject certified business entity.
In addition to the methods included in the provisions of Subsection (h), above, the Purchasing Agent may utilize an expedited process for any certification renewal under this Division, including the submission of a (i) a "no change" affidavit, (ii) a copy of a federal tax return filed with the Internal Revenue Service establishing that the business has operated within the County within the preceding twelve (12) months, and (iii) a certificate of good standing with the Maryland State Department of Assessments and Taxation, to satisfy the documentation requirements for certification renewal.
On a case by case basis, the Purchasing Agent may require additional information for verification purposes at the Purchasing Agent's discretion.
A joint venture entity, where a County-based business, County-based minority business enterprise, or County-based small business owns, without condition, a majority (more than 50%) of the joint venture entity's assets and is entitled, without condition, to a majority (more than 50%) of the joint venture entity's revenues and profits, is eligible to be certified as a County-based business, County-based minority business enterprise, or County-based small business, respectively, provided that the majority ownership of the joint venture entity satisfies the respective requirements of this Section.
All diverse supplier certifications shall be valid for a three-year period.
The Purchasing Agent may grant temporary certification to those who have submitted applications to become certified as a County-based business, County-based small business, County-located Business, County-based Minority Business Enterprise and Minority Business Enterprise for a period not to exceed ninety (90) days from the date the certification application is submitted to the County.
The Purchasing Agent may promulgate rules and regulations for the implementation and administration of temporary certification as a County-based business, County-based small business, County-located Business, and Minority Business Enterprise.
For the entire duration of the procurement contract or agreement, any vendor given a preference under this Division or subject to the business participation requirements under this Division shall maintain no less than the percentage of participation stated in the winning bid or proposal. Failure to comply with this Division may subject any vendor given a business preference under this Division, or that is subject to business participation requirements under this Division to a penalty, to include monetary fines of up to five percent (5%) of the value of the contract for each violation, a cancellation of the contract or agreement, or suspension or debarment of the vendor under Section 10A-148 of this Subtitle.
A vendor may request a waiver of the requirements of this Section by the Purchasing Agent. On a case by case basis, such a waiver request may be granted by the Purchasing Agent if "best efforts" by the vendor to comply have been demonstrated as prescribed in Subsection (e) of this Section, subject to Section 10A-159.01.
Any vendor given a County-based business preference under this Division, subject to the County-based small business, County-based minority business enterprise, and Locally-owned and Operated Business participation requirements of Section 10A-161(a), or the Disparity Study Implementation Goals of Section 10A-161 shall submit a quarterly report within thirty (30) calendar days after the end of each quarter to the Purchasing Agent, the County Auditor, and a compliance manager designated by the County Council that provides:
The percentage and U.S. dollar value of certified County-based small business participation, County-based minority business enterprise participation, or Locally-owned and Operated Business participation, and certified participation of businesses within the disparity classifications of businesses specified in Section 10A-161(c) (only for the disparity classifications of businesses for which the procurement has participation goals, if any) in the most recent quarterly period, including reporting the percentage and U.S. dollar value of certified participation in the aforementioned categories for the period from the beginning of the calendar year to the reporting date;
The name and principal place of operation of each business receiving payment under the procurement in the most recent quarterly period, including the U.S. dollar value and percentage of the total contract dollars paid in the most recent 3 month period to each business; and
The expected percentage and U.S. dollar value of certified County-based small business participation, County-based minority business enterprise participation, and Locally-owned and Operated Business participation, and certified participation of businesses within the disparity classifications of businesses specified in Section 10A-161(c) (only for the disparity classifications of businesses for which the procurement has participation goals, if any) in the next 12 month period.
At the discretion of the Purchasing Agent or the County Auditor, any vendor given a business preference under this Division or subject to the business participation requirements of this Division shall be subject to an audit of documents or other information deemed necessary by the Purchasing Agent or the County Auditor to verify compliance with this Section upon thirty (30) calendar days written notice, including, but not limited to, copies of any contracts with subcontractors or other vendors.
The Purchasing Agent shall make compliance with this Subdivision a written condition of any contract or agreement for any procurement subject to Sections 10A-112, 10A-113, and 10A-114 of this Subtitle, by including a mandatory written compliance clause in every such contract or agreement.
In this Subdivision, the term "best efforts" means efforts to the maximum extent practicable have been made to meet the requirement. A vendor given a County-based business preference under this Division or subject to the County-based small business, County-based minority business enterprise, and/or Locally-owned and Operated Business participation requirements or Disparity Study Implementation Goals under this Division shall not be deemed to have demonstrated "best efforts" under Subsection (a) of this Section where there is a sufficient number of County-based small businesses, County-based minority business enterprises, Locally-owned and Operated Businesses, and, if applicable, diversity classifications of businesses to enable the vendor to meet the requirements of Subsection (a) of this Section. A waiver authorized by Paragraph (1) of Subsection (a) of this Section shall not be granted unless the vendor seeking the waiver:
Provides a detailed written statement of the reasons the vendor is unable to maintain its required percentages of participation of County-based businesses, County-based small businesses, County-based minority business enterprises, and/or, if applicable, disparity classifications of businesses (collectively meaning, in this Division, "Diverse Suppliers");
Provides a detailed written statement of its efforts to maintain its percentages of participation of Diverse Suppliers originally required in the procurement, including the precise reasons and justifications for the departure of County-based businesses and County-based small businesses from the procurement since the initial award of the procurement and the vendor's efforts to contact and negotiate with other Diverse Suppliers including:
The names, addresses, and telephone numbers of the Diverse Suppliers that were contacted and the dates such County-based businesses were contacted, and
A description of the information provided to Diverse Suppliers regarding the descriptions of services or goods sought for the procurement, including plans, specifications and anticipated time schedule for any portions of the work to be performed, where applicable;
As to each Diverse Supplier (within a category for which there is a participation requirement or goal on the procurement) that placed a subcontract or other quotation or offer which the vendor considered not to be acceptable, a detailed written statement that includes sufficient reasons for this conclusion;
A written list of Diverse Supplier (within a category for which there is a participation requirement or goal on the procurement) found to be unavailable to perform under the procurement; and
Provides a detailed description demonstrating that the vendor made sufficient efforts to assist interested Diverse Supplier (within a category for which there is a participation requirement or goal on the procurement) in obtaining bonding, lines of credit, or insurance required by the vendor.
Based on an analysis of the information provided by the vendor seeking a waiver authorized by Paragraph (1) of Subsection (a) of this Section and an analysis by the Purchasing Agent of the availability of Diverse Supplier (within a category for which there is a participation requirement or goal on the procurement) that provide services or goods that are the subject of the procurement, the Purchasing Agent shall determine whether "best efforts" to comply have been demonstrated by the vendor and whether to propose to grant the vendor's request for a waiver authorized by Paragraph (1) of Subsection (a) of this Section, subject to the approvals required by this Section. If the Purchasing Agent does propose to grant a waiver authorized by Paragraph (1) of Subsection (a) of this Section, the Purchasing Agent shall propose a new minimum percentage requirement for participation of the categories of Diverse Suppliers originally required in the procurement for the vendor's procurement based on the availability of Diverse Suppliers that provide services or goods that are the subject of the procurement, subject to the approvals required by this Section.
Small Business Subcontracting Plan required. Where the prime contractor is not a County-based small business, County-based minority business enterprise, or Locally-owned and Operated Business, the fifty percent (50%) County-based small business, County-based minority business enterprise, and Locally-owned and Operated Business participation requirement of Sections 10A-161(a) and 10A-114(c) shall be governed by a Small Business Subcontracting Plan, submitted by the prime contractor.
Small Business Subcontracting Plan is a written plan listing all subcontracts, including individual contract values, between the prime contractor (contract award recipient) and Diverse Suppliers (within a category for which there is a participation requirement or goal on the procurement); and between Diverse Suppliers and Non-Diverse Suppliers and all lower tier Diverse Supplier (within a category for which there is a participation requirement or goal on the procurement) subcontractors for the procurement.
At the time of bid or proposal submission for procurements subject to Section 10A-161(a) or prior to the execution of a contract between the County and any vendor for a procurement subject to Section 10A-114(c), the prime contractor(s) shall submit a Small Business Subcontracting Plan executed by the prime contractor and all of the subcontractors being utilized to fulfill the fifty percent (50%) County-based small business, County-based minority business enterprise, and Locally-owned and Operated Business participation requirement of Section 10A-161(a) or 10A-114(c).
For procurements subject to Section 10A-161(a), any bid or proposal that does not meet the requirements of this Subsection shall be deemed nonresponsive.
Any prime contractor failing to comply in good faith with the components of its Small Business Subcontracting Plan is in material breach of its contract with the County.
A prime contractor may only modify its Small Business Subcontracting Plan, including modifying its subcontractors, for cause stated in writing, with the approval of the Purchasing Agent, provided that the prime contractor continues to comply with the participation requirements of Sections 10A-161(a) or 10A-114(c). A County-based small business, County-based minority business enterprise, and Locally-owned and Operated Business subcontractor can only be removed or have its participation (in contract value) reduced in the Small Business Subcontracting Plan due to incapability to adequately perform the work required under the procurement contract.
The Purchasing Agent shall reject any Small Business Subcontracting Plan that does not comply with this Subsection.
This Subsection shall become effective on October 1, 2017.
The Office of Procurement shall maintain a copy (in electronic or hard copy form) of the final executed version of every procurement contract or agreement (including purchase orders) authorized by this Subtitle including any subsequent contract amendments or modifications.
Certified business participation under this Subtitle, including for County-based minority business enterprises, County-based small businesses, County-based businesses, Locally-owned and Operated Businesses, minority business enterprises, and County-located businesses, shall not include business activity whereby the certified firm's role is limited to that of an extra participant in a transaction, contract, or project through which funds are passed in order to obtain the appearance of certified business participation. The Purchasing Agent may also adopt regulations establishing standards to ensure that certified firms are performing "commercially useful functions" for the purposes of certified business participation determinations.
The Purchasing Agent is authorized to establish a program (in this Subtitle, "Mentor-Protégé Program") whereby a contractor (in this Section, "mentor contractor") may be required, as a condition of qualification of a bid or proposal for a procurement authorized under this Subtitle, to participate as a mentor in the Mentor-Protégé Program in accordance with this Section ("Mentor-Protégé Program Requirement"). The Purchasing Agent, may impose a Mentor-Protégé Program Requirement on a procurement by procurement basis, a broader requirement on multiple procurements, or on procurements by industry area.
Mentor Protégé Program Requirement. A mentor contractor shall comply with all of the following to participate as a mentor in the Mentor-Protégé Program:
The mentor contractor shall enter into a written mentor-protégé agreement approved by the Purchasing Agent (in this Section, "mentor agreement") with specific County-based small businesses or County-based minority business enterprises to develop their capacity in becoming self-sufficient, competitive, and profitable business enterprises through joint venture entities, prime and subcontractor relationships, bonding and financial support, or other partnerships approved by the Purchasing Agent;
The County-based small businesses or County-based minority business enterprises, or combination thereof, that have entered into the mentor agreement as protégés, for a procurement with a Mentor-Protégé Program Requirement, shall self-perform at least twenty (20) percent of the value of the procurement; and
The mentor contractor and the protégé shall comply with the terms of the mentor agreement.
The Purchasing Agent shall have power to enter into service and reimbursement agreements with associations of local businesses, local, state and federal small and minority business assistance offices, and other organizations that provide assistance in the recruitment and placement of County-based small businesses or County-based minority business enterprises, pertaining to the provision of training and related assistance to current or prospective County-based small businesses and County-based minority business enterprises. The Purchasing Agent shall also have power to enter into cooperative agreements with non-county agencies and entities for the inclusion of additional procurement activities in the Mentor-Protégé Program.
The Purchasing Agent may rescind any procurement award authorized under this Subtitle with a Mentor-Protégé Program Requirement where the Director of Central Services determines that the participating mentor contractor has failed to comply with the terms of the mentor agreement.
The Purchasing Agent is authorized to adopt rules and regulations for the proper administration and enforcement of this Section, including regulations governing mentor agreements, participating contractors, and the related procurements.
The Purchasing Agent or the Purchasing Agent's Designee may require any procurement or contract authorized under this Subtitle to include a Mentor-Protégé Program Requirement.
The County Executive or the County Executive's designee shall establish procedures to ensure that solicitations are subdivided and unbundled and that smaller procurements are created to the extent feasible and fiscally prudent. Where the award or bidding of project design work (also including architecture and engineering work) (the "design phase") and project construction work (the "build phase") for a public works project is bundled as one solicitation or award, the procurement shall be subject to the participation requirements of Section 10A-161(a) or 10A-114(b) of this Subtitle separately for (i) the project design work and (ii) the project construction work.
At the time of any contemplated exercise of an option, extension, or renewal, including automatic extensions or renewals (e.g. "evergreen" contracts or agreements), the Purchasing Agent shall require that any existing contract or agreement for a procurement funded by a County agency or the County government (including, but not limited to, any contract or procurement awarded pursuant to Section 10A-112, 10A-113, 10A-114, or 10A-115 of this Subtitle or any existing multiyear contract or extended contract) be amended to comply with the requirements of this Division or the contract or agreement shall not be renewed or extended by the County government or County agency.
The County Executive may promulgate regulations to govern the implementation of this Subdivision, provided that such regulations are consistent with the provisions of this Subdivision. Any such regulations must be approved by the County Council.
Employ Prince George's shall maintain a First Source Registry. The First Source Registry shall consist of the names of veterans, unemployed, low-to-moderate income (defined as being within three hundred percent (300%) of federal poverty guidelines), and general job-seeking individuals who are County residents. The Registry shall be the first source for hiring all new hire positions on procurement projects funded by a County agency or the County government $5 million or greater in value. Employ Prince George's may require from residents seeking to be listed in the First Source Registry such documentation that it deems necessary to verify unemployment, income, veteran-status, and residency information (pursuant to the requirements set forth in Section 10A-101(14.1)) for the purposes of this Subdivision. Employ Prince George's shall give the Purchasing Agent constant access to the information in the First Source Registry and access upon request to any information provided by residents pursuant to this Subsection.
In compiling and maintaining the First Source Registry, Employ Prince George's shall contact community organizations, organized labor locals, civic and citizens associations, and nonprofit institutions for names and other relevant contact information of unemployed, low-to-moderate income, and general job seeking County residents. Only County residents are eligible to be listed or included in the First Source Registry.
In this Subdivision, County resident means a citizen or legal resident whose primary residence and domicile is within Prince George's County, MD.
The Purchasing Agent shall require prior to the execution and as a condition of the performance of any contracts or agreements for procurements $5 million or greater in contract value, awarded pursuant to Section 10A-112, 10A-113, or 10A-114 of this Subtitle, at the time of initial contract execution or, effective as of January 1, 2014, at the time of any exercise of contract renewal, option, or extension (including automatic renewal or extension), a requirement that the business enter into a First Source and Local Hiring Agreement with the County which states that:
The first source for finding employees to fill all jobs created by the government-assisted project shall be the First Source Registry;
The first source for finding employees to fill any vacancy occurring in all jobs covered by a First Source and Local Hiring Agreement will be the First Source Registry; and
Compliance with this Section is a condition of the First Source and Local Hiring Agreement.
In selecting qualified County residents from the First Source Registry for interviews or other consideration for employment for all jobs covered by each First Source and Local Hiring Agreement, Employ Prince George's shall give first priority to referring veterans who are County residents, second priority to referring unemployed County residents, third priority to referring County residents within three hundred percent (300%) of federal poverty guidelines, and then fourth priority to referring other job-seeking County residents.
Each business that is a signatory to a First Source and Local Hiring Agreement under a procurement contract shall submit to Employ Prince George's and the Purchasing Agent, by the fifth business day of every month following the execution of the First Source and Local Hiring Agreement, an agreement compliance report for the project that includes the:
Number of employees needed;
Number of current employees transferred;
Number of new job openings created;
Number of jobs openings listed with Employ Prince George's;
For the reporting period (during the previous calendar month), the total number of County residents employed, including new County resident hires, and total hours worked by County residents, and
For the calendar year, the cumulative total number of County residents employed, including cumulative new County resident hires, and cumulative work hours by County residents; and
For the reporting period (during the previous calendar month), the total number of employees employed, including new hires, and total employee hours worked, and
For the calendar year, the cumulative total number of employees hired, including cumulative new hires, and cumulative employee hours worked, including, for each employee:
Name;
Job title;
Hire date;
Residence; and
Referral source for all new hires.
At least ten (10) calendar days prior to announcing an employment position, a business that is a signatory to a First Source and Local Hiring Agreement under a procurement contract shall notify Employ Prince George's of the available positions. If the County resident interviewed or otherwise considered for the position is not hired, the business shall provide reasons why the referred County resident was not hired. A good faith effort is required to hire the referred County resident, if sufficiently qualified for the available position.
The requirements of Section 10A-168 and Subsections (a) through (d) of this Section, except for the reporting requirements of Paragraphs (5) and (6) of Subsection (c) of this Section on a form provided by the Purchasing Agent, shall not apply to procurement contracts in the construction industry, as defined by Sector 23 of the current edition of the North American Industry Classification System ("NAICS"), for procurements funded by a County agency or the County government if the procurement contract or agreement is governed by a project labor agreement. The remaining requirements of this Subdivision shall apply to such procurement contracts, agreements, or awards.
For every procurement $5 million or greater in contract value and subject to Section 10A-112, 10A-113, or 10A-114 of this Subtitle, the Purchasing Agent shall require "best efforts" to reach a minimum goal that at least fifty-one percent (51%) of the annual man/woman hours (work hours), on both a total work hour and trade by trade basis, be worked by County residents as a condition of any contract or agreement for a procurement funded by a County agency, including requiring "best efforts" to reach a minimum goal that at least fifty-one percent (51%) of the annual apprenticeship work hours on such contracts or agreements be worked by apprentices who are County residents. The requirements of this Subsection extend to hiring by contractors and subcontractors on procurements funded by a County agency under the supervision or control of the contractors and subcontractors.
In procurements funded by a County agency or the County government, competitive bids or proposals responding to a bid or proposal solicitation, including, but not limited to, competitive bids pursuant to Section 10A-112 or competitive proposals pursuant to Section 10A-113, may be deemed nonresponsive and rejected by the Purchasing Agent if the bid or proposal fails to demonstrate adequate capacity to meet the annual County resident hiring goals of this Subsection in the judgment of the Purchasing Agent.
If a procurement subject to this Subsection fails to reach the minimum goal that at least fifty-one percent (51%) of the annual man/woman hours (work hours) or fifty-one percent (51%) of the annual apprenticeship work hours be worked by County residents, a waiver must be granted pursuant to Subsection (h) of this Section or the procurement is subject to the penalties of Subsection (i) of this Section.
In order to meet the "best efforts" requirements of this Subsection, an employer required to comply with the annual County resident hiring goals of this Subsection shall require any worker it employs that it deems to be a County resident for the purposes of meeting the annual County resident hiring goals to submit documentation by the end of the calendar year to the employer necessary to establish the worker's County residency pursuant to the requirements set forth in Section 10A-101(14.1), including a copy of a filed Maryland state income tax return as prescribed in Section 10A-101(14.1)(A)—(B) or an attestation as prescribed in Section 10A-101(14.1)(C) establishing a Prince George's County domicile for the worker for the most recent full calendar year, unless the worker has already submitted such documentation during the calendar year to Employ Prince George's pursuant to Section 10A-168(a). The employer shall transmit the documentation required by this Paragraph submitted by its workers during the calendar year to Employ Prince George's and the Purchasing Agent by the tenth (10th) business day of the subsequent calendar year or the employer shall be in noncompliance with the "best efforts" requirements of this Subsection and subject to the penalties of Subsection (i) of this Section.
For procurements funded by a County agency or the County government $5 million or greater in contract value and awarded pursuant to Section 10A-112, 10A-113, or 10A-114 of this Subtitle, the Purchasing Agent shall require compliance with this Subdivision as a written condition of the procurement contract or agreement or any such contract or agreement shall be rendered void and illegal.
On a case by case basis, at the request of an employer required to comply with Subsection (f) of this Section, the Purchasing Agent may waive the annual County resident hiring goals of Subsection (f) of this Section, upon consultation with Employ Prince George's, if the Purchasing Agent finds that "best efforts" to comply with the annual County resident hiring goals by the employer requesting the waiver have been demonstrated as prescribed in Paragraph (2) of this Subsection. An employer is only allowed to request and the Purchasing Agent is only allowed to grant a waiver authorized by this Subsection after the end of the calendar year for which the employer seeks the waiver and the waiver, if granted, shall only apply for that calendar year.
Any waiver authorized by this Subsection shall comply with the approval requirements of Section 10A-159.01. {For procurement contracts or agreements subject to approval by legislative act under Section 819 of the Charter, a waiver authorized by this Subsection must be approved by the County Council. For procurement contracts or agreements not subject to approval by legislative act under Section 819 of the Charter, notice of such a waiver, including the information provided to the Purchasing Agent pursuant to Subparagraphs (A)—(D) of Paragraph (2) of this Subsection, shall be sent to the County Council by the Purchasing Agent by no less than fourteen (14) calendar days prior to the date of the County Executive's approval of the Purchasing Agent's decision to waive the provisions of Subsection (f) of this Section.}
The term "best efforts" in this Subdivision means efforts to the maximum extent practicable have been made to meet the requirement. "Best efforts" by an employer required to comply with Subsection (f) of this Section shall not be found and a waiver authorized by this Subsection shall not be granted unless the employer provides written documentation to the Purchasing Agent demonstrating that:
Whenever employment opportunities became available during the calendar year, the employer made good faith efforts to hire each County resident who applied or was referred for employment;
The employer sent written notifications during the calendar year to Employ Prince George's and community, labor, and workforce-related organizations and institutions identified by the County Executive or the County Executive's designee whenever employment opportunities became available;
For each County resident who applied or was referred for employment during the calendar year, but was not hired, the employer maintained written documentation that includes a sufficient explanation of the reason(s) the County resident was not hired; and
The employer met other requirements during the calendar year determined by the Purchasing Agent.
Based on an analysis of the information provided by the employer seeking a waiver authorized by this Subsection and an analysis by the Purchasing Agent of the sufficiency of the County's labor market, upon consultation with Employ Prince George's, the Purchasing Agent shall determine whether "best efforts" to comply have been demonstrated by the employer and whether to grant the employer's request for a waiver authorized by this Subsection, subject to the approvals and notice required by this Subsection. An employer must be in compliance with Paragraph (3) of Subsection (f) of this Section in order to receive a waiver authorized by this Subsection. A waiver decision by the Purchasing Agent authorized by this Subsection must be approved in accordance with Section 10A-159.01 or it shall be void.
Failure to comply with this Section, for a procurement funded by a County agency or the County government, may subject a signatory to a First Source and Local Hiring Agreement or any other entity required to comply with this Subdivision to a penalty, to include monetary fines of up to twenty percent (20%) of the value of the direct and indirect labor costs of the contract, as determined by the Purchasing Agent. For repeated violations of this Section, a signatory to a First Source and Local Hiring Agreement or any other entity required to comply with this Subdivision may be subject to a cancellation of the procurement contract or agreement or suspension or debarment of the signatory under Section 10A-148 of this Subtitle.
At the discretion of the Purchasing Agent or the County Auditor, any business that is a signatory to a First Source and Local Hiring Agreement or any other entity required to comply with this Subdivision shall be subject to an audit of documents or other information deemed necessary by the Purchasing Agent or the County Auditor to verify compliance with this Section upon thirty (30) calendar days written notice.
Immediately upon execution, the Purchasing Agent shall expeditiously transmit a paper or electronic copy of any signed First Source and Local Hiring Agreement to Employ Prince George's.
The Purchasing Agent may waive and adjust or modify the requirements of this Subdivision, in accordance with Section 10A-159.01, on a case by case basis, if the Purchasing Agent determines in writing that
there is an insufficient number of available Prince George's County residents in the labor market who possess the skills required to do the work included in the contract or
"best efforts" were made in accordance with Subsection (h), above.
For any existing contract or agreement for a procurement funded by a County agency or the County government, including any existing multiyear contract or extended contract, the Purchasing Agent shall require the inclusion of a condition in the contract or agreement requiring best efforts to meet the annual County resident hiring goals of Subsection (f) of Section 10A-169 and requiring compliance with the other applicable provisions of this Subdivision, at the time of any contemplated exercise of an option, extension, or renewal, including automatic extensions or renewals (e.g. "evergreen" contracts or agreements), or the contract or agreement shall not be renewed or extended by the County government or County agency.
The Prince George's County Economic Development Corporation's Workforce Services Division shall submit reports pursuant to Section 10A-138, to the County Auditor, the Purchasing Agent, and a compliance manager designated by the County Council verifying the requirements in Section 10A-167. The reports shall also detail the number of government-assisted projects for which First Source and Local Hiring Agreements were executed, the number of jobs that result from the First Source and Local Hiring Agreements, the number of County residents actually employed in government-assisted projects, and the number of unemployed County residents on the First Source Registry. The format of the reporting under this Section shall be determined by the County Executive or the County Executive's designee.
The County Executive may promulgate regulations to govern the implementation of this Subdivision, provided that such regulations are consistent with the provisions of this Subdivision. Any such regulations must be approved by the County Council.
On any procurement for which a County agency or the County government secures competitive bids pursuant to Section 10A-112 or competitive proposals pursuant to Section 10A-113, the Purchasing Agent shall apply the following percentage bid discount to the bid price or add the following percentage points to the total evaluated score of the proposal:
| Business Type |
Where the prime bidder or prime proposer is a certified firm, add or discount the following, as applicable: |
| County-based minority business enterprise |
15% |
| County-based small business |
12% |
| County-based business |
10% |
| Minority Business Enterprise or Disadvantaged Business Enterprise |
5% |
| County-located business |
3% |
Cumulative preference points: The same firm that is a prime bidder or prime proposer of a bid or proposal shall not be counted for a preference for more than one of the certified business categories above and shall receive a preference for the highest scoring certified business category for which it qualifies. No single certified firm can receive more than 15% percentage points or discount, as applicable, in any one bid or proposal, with the exception of the application of the Locally-owned and Operated Business preference prescribed in Subsection (b), below.
Locally-owned and Operated Business preference.
In addition to the preferences awarded in accordance with Subsection (a), above, the Purchasing Agent shall apply a five percentage (5%) bid discount to the bid price or add five percentage (5%) points to the total evaluated score of the bid or proposal of a prime bidder or prime proposer, respectively, (for joint venture entities, the majority firm of a joint venture entity) that is a Locally-owned and Operated Business as defined in this Subtitle.
At the time of bid or proposal, the owner(s) of a prime bidder or prime proposer that is a Locally-owned and Operated Business shall provide an affidavit affirming current domicile in the County for at least the twelve (12) months prior to the bid, income tax returns establishing residency in the County for the most recent full calendar year, and documentation establishing majority ownership of the prime bidder or prime proposer (for joint venture entities, the majority firm of the joint venture entity) to establish status as a Locally-owned and Operated Business and be awarded the 5% preference prescribed in this Subsection.
For each procurement, the Purchasing Agent shall provide direction to prospective bidders on how to qualify for the Locally-owned and Operated Business preference under this Subsection, and shall identify any additional information to clarify current residency or ownership in accordance with this Subsection.
The Purchasing Agent may determine not to apply a bid or proposal preference under this Section if the Purchasing Agent certifies that such a preference would result in the loss of federal or state funds, subject to the approval of the County Executive.
The requirements of this Section shall apply to the procurement of vendors retained by a County agency or the County government to assist in the financing and sale of County government debt. The requirements of this Section shall also apply to the procurement of brokerage firms, investment banking firms, investment management firms, consultants, and other vendors retained to manage or invest funds controlled or administered by a County agency or the County government. The application of this Subsection is subject to the requirements and restrictions of federal and state law.
A business may opt to not receive a business preference under this Section.
For the purposes of this Division, the term "competitive bids or proposals" means any bids or proposals for procurement funded or administered by a County agency or the County government except for procurement awards made pursuant to Section 10A-114.
For the purposes of this Division, the following terms have the following meanings:
Prime bidder means the person, firm, entity or organization submitting a response to a solicitation for competitive bids and is responsible for executing the work as mentioned in the solicitation; and
Prime proposer means the person, firm, entity or organization submitting a response to a solicitation for competitive proposals and is responsible for executing the work as mentioned in the solicitation.
A business that seeks to be certified as a County-located business shall make application to the Purchasing Agent on a form provided by the Purchasing Agent. Such an application shall not be approved by the Purchasing Agent unless the business
Submits documentation requested by the Purchasing Agent verifying that the business meets the definition of a County-located business as prescribed in Section 10A-101, including
Leasing or ownership documents,
Payroll information,
Property and income tax information, and
Any other documentation or information requested by the Purchasing Agent to verify compliance with the definition of County-located business set forth in Section 10A-101;
Files a written certificate that the business is not delinquent in the payment of any County taxes, charges, fees, rents or claims; and
Files documentation showing that during the preceding twelve (12) months the business has continuously maintained a valid business license or permit.
Once an application for certification is approved under this Section by the Purchasing Agent, a copy of the approved application shall be expeditiously transmitted to the County Auditor.
Nonprofit entities that satisfy the applicable requirements of this Section are eligible to be certified as County-located businesses.
A business that is certified as a County-located business shall meet the requirements of certification under this Section continuously after the date the business's application for certification is approved by the Purchasing Agent or the business's certification shall be void. In such instances, the business must re-apply pursuant to the requirements of this Section to be certified as a County-located business.
The County Executive may promulgate regulations to govern the implementation of this Subdivision, provided that such regulations are consistent with the provisions of this Subdivision. Any such regulations must be approved by the County Council.
The Purchasing Agent shall prepare and transmit a written report, subject to section 10A-138 section of this Subtitle that shall include information regarding the Local Business Participation Procurement Report, to the County Council and County Executive that includes the following information for that entire fiscal year:
The percentages and total dollar value of certified county-based business participation for procurement within (i) each agency, (ii) each NAICS industry classification and (iii) the entire county government;
The percentages and total dollar value of certified county-based minority business enterprise participation for procurement within (i) each agency, (ii) each NAICS industry classification and (iii) the entire county government;
The percentages and total dollar value of certified county-located business participation for procurement within (i) each agency, (ii) each NAICS industry classification and (iii) the entire county government;
The percentages and total dollar value of certified county-based small business participation for procurement within (i) each agency, (ii) each NAICS industry classification and (iii) the entire county government;
The percentages and total dollar value of certified minority business enterprise participation for procurement within (i) each agency, (ii) each NAICS industry classification and (iii) the entire county government;
Total contract dollars paid for county government for procurement within (i) each agency, (ii) each NAICS industry classification and (iii) the entire county government.
The name of the specific procurement award recipient ("procurement award recipient" includes the recipient of any procurement award, renewal or extension), procurement description, and procurement contract value for each procurement awarded, renewed or extended (including automatically renewed or extended) during the fiscal year, including:
The address of the procurement award recipient's principal place of operation and the date that the procurement was awarded, renewed or extended; and
Whether the procurement award recipient is a
county-based business;
county-based minority business enterprise;
county-based small business;
county-located business;
minority business enterprise; or
business not within the categories of subparagraphs (A)—(E), above;
Whether the procurement award during the fiscal year was
An initial or new award; or
A renewal or extension.
For initial or new awards, whether the procurement was awarded by
a competitive bid or proposal pursuant to Sections 10A-112 or 10A-113;
a contract negotiation or sole source contract pursuant to Section 10A-114, including the reason(s) for not competitively bidding the procurement; or
a small purchase pursuant to Section 10A-115.
For renewals or extensions, whether the procurement was initially awarded in a previous fiscal year by
a competitive bid or proposal pursuant to Sections 10A-112 or 10A-113;
a contract negotiation or sole source contract pursuant to Section 10A-114, including the reason(s) for not competitively bidding the procurement; or
a small purchase pursuant to Section 10A-115.
Whether a First Source and Local Hiring Agreement
was required by the provisions of this Division to be executed for the procurement; and
was executed for the procurement in accordance with this Division.
Whether the procurement award recipient complied (or is in compliance) with the reporting requirements of this Division, if applicable;
Whether any waiver(s) authorized by this Division were issued for the procurement, the date of issuance of such waiver(s), any alternative minimum percentages that were applied to the procurement due to any such waiver(s), and a description of the nature and justification for any such waiver(s);
Whether any penalties or other compliance actions were taken by the Purchasing Agent to enforce the requirements of this Division and, if so, a description of those actions; and
Whether the procurement was awarded, renewed, or extended in full compliance with this Division.
The number of businesses, categorized by most current NAICS industry classification, with valid certifications on file with the Supplier Development and Diversity Division or the Office of Central Services as a
County-based business;
County-based minority business enterprise;
County-based small business;
County-located business; or
Minority business enterprise.
Prior to the execution of any procurement contract or agreement subject to Section 10A-112, 10A-113, 10A-114 or 10A-115 of this Subtitle, the Purchasing Agent or Purchasing Agent's designee shall certify in writing that such procurement is in full compliance with the applicable provisions of this Subtitle or the procurement shall be rendered void and illegal. Any procurement award, contract or agreement (including any procurement contract renewal or extension) under the authority of this Subtitle, including subject to Section 10A-112, 10A-113, 10A-114, or 10A-115, awarded or executed in violation of any provision of Division 6 or Division 7 of this Subtitle shall be rendered void and illegal. Where a procurement award, contract or agreement is rendered "void and illegal" by violating a provision of this Subtitle, "void and illegal" shall mean "terminated for convenience" and shall not create a right of legal action or damages against any party.
The mandates contained in this subdivision shall apply to all County construction projects that exceed one million dollars ($1,000,000).
African American Business Enterprise as defined in Section 10A-101(A)(1) mean any business enterprise that is:
At least fifty-one percent (51%) owned by one or more African Americans, or, in the case of any publicly-owned corporation, at least fifty-one percent (51%) of the stock of which is owned by one or more African Americans;
Whose general management and daily business affairs and essential productive operations are controlled by one or more African Americans; and
Which has been certified by the Supplier Development and Diversity Division as a minority business enterprise pursuant to Division 6 of this Subtitle.
Asian-Pacific American Enterprise as defined in Section 10A-101(A)(1.2) shall mean any business enterprise that is:
At least fifty-one percent (51%) owned by one or more Asian-Pacific Americans, or, in the case of any publicly-owned corporation, at least fifty-one percent (51%) of the stock of which is owned by one or more Asian-Pacific Americans;
Whose general management and daily business affairs and essential productive operations are controlled by one or more Asian-Pacific Americans or Subcontinent Asian Americans; and
Which has been certified by the Supplier Development and Diversity Division as a minority business enterprise pursuant to Division 6 of this Subtitle.
Code shall mean the Prince George's County Code.
Contractor shall mean any person, firm, corporation, partnership, association, limited liability company, or any combination thereof, who enters into a contract with the County, and which contract is executed by an individual that is authorized to bind the County.
County Based as defined in Section 10-308(3) means a business whose principal place of operation, as determined by the Office of Procurement, is in Prince George's County, Maryland.
Latino Business Enterprise as defined in Section 10A-101(A)(23.2) shall mean any business enterprise that is:
At least fifty-one percent (51%) owned by one or more Hispanic Americans, or, in the case of any publicly-owned corporation, at least fifty-one percent (51%) of the stock of which is owned by one or more Hispanic Americans;
Whose general management and daily business affairs and essential productive operations are controlled by one or more Hispanic Americans; and
Which has been certified by the Supplier Development and Diversity Division as a minority business enterprise pursuant to Division 6 of this Subtitle.
Local Worker shall mean an employee of a Contractor or Subcontractor that resides within the County.
Locally-owned and Operated Business as defined in Section 10A-101(A)(24.1) shall mean any County-based business:
Which is at least fifty-one percent (51%) owned by one or more County residents, or, in the case of any publicly-owned corporation, at least fifty-one percent (51%) of the stock of which is owned by one or more County residents;
Whose general management and daily business affairs and essential productive operations are controlled by one or more County residents; and
Which has been certified by the Supplier Development and Diversity Division as a County-based business, County-based small business, and/or County-based minority business enterprise pursuant to Division 7 of this Subtitle.
Minority Business Enterprise as defined in Section 10A-101(A)(26) shall mean any business enterprise:
Which is at least fifty-one percent (51%) owned by one or more minority individuals, or, in the case of any publicly-owned corporation, at least fifty-one percent (51%) of the stock of which is owned by one or more minority individuals;
Whose general management and daily business affairs and essential productive operations are controlled by one or more minority individuals; and
Which has been certified by the Supplier Development and Diversity Division as a minority business enterprise pursuant to Division 6 of this Subtitle.
Minority Individuals as defined in Section 10A-101(A)(27) shall mean those who have been subjected to prejudice or cultural bias because of their identity as a member of a group in terms of race, color, ethnic origin, or gender, without regard to their individual capabilities. Minority individuals are limited to members of the following groups:
African Americans (Black Americans), which includes persons having origins in any of the Black racial groups of Africa;
Asian-Pacific Americans, which includes persons whose origins are from Japan, China, Taiwan, Korea, Burma (Myanmar), Vietnam, Laos, Cambodia (Kampuchea), Thailand, Malaysia, Indonesia, the Philippines, Brunei, Samoa, Guam, the U.S. Trust Territories of the Pacific Islands (Republic of Palau), the Commonwealth of the Northern Marianas Islands, Macao, Fiji, Tonga, Kiribati, Tuvalu, Nauru, Federated States of Micronesia, or Hong Kong;
Female, regardless of race, ethnicity or origin;
Hispanic Americans, which includes persons of Mexican, Puerto Rican, Cuban, Central or South American, or other Spanish or Portuguese culture or origin, regardless of race;
Native Americans, which includes persons who are American Indians, Eskimos, Aleuts, or Native Hawaiians;
Subcontinent Asian Americans, which includes persons whose origins are from India, Pakistan, Bangladesh, Bhutan, the Maldives Islands, Nepal or Sri Lanka; and
Veterans and Service-Disabled Veterans.
Native American Business Enterprise as defined in Section 10A-101(A)(27.1) shall mean any business enterprise that is:
At least fifty-one percent (51%) owned by one or more Native Americans, in the case of any publicly-owned corporation, at least fifty-one percent (51%) of the stock of which is owned by one or more Native Americans;
Whose general management and daily business affairs and essential productive operations are controlled by one or more Native Americans; and
Which has been certified by the Supplier Development and Diversity Division as a minority business enterprise pursuant to Division 6 of this Subtitle.
Subcontractor shall mean any person, firm, corporation, partnership, association, limited liability company, or any combination thereof who enters into a contract with a Contractor to assist the Contractor in the performance of a contract with the County. The term subcontractor does not include vendors or suppliers to the Contractor.
Veteran Business Enterprise as defined in Section 10A-101(A)(45) shall mean any business enterprise that is:
Which is at least fifty-one percent (51%) owned by one or more Americans who are Veterans and/or service-disabled Veterans, or, in the case of any publicly-owned corporation, at least fifty-one percent (51%) of the stock of which is owned by one or more Veterans and/or service-disabled Veterans;
Whose general management and daily business affairs and essential productive operations are controlled by one or more Veterans and/or service-disabled Veterans; and
Which has been certified by the Supplier Development and Diversity Division as a minority business enterprise pursuant to Division 6 of this Subtitle.
Women's Business Enterprise as defined in Section 10A-101(A)(46) shall mean any business enterprise that is:
Which is at least fifty-one percent (51%) owned by one or more Female Americans, or, in the case of any publicly-owned corporation, at least fifty-one percent (51%) of the stock of which is owned by one or more Female Americans;
Whose general management and daily business affairs and essential productive operations are controlled by one or more Female Americans; and
Which has been certified by the Supplier Development and Diversity Division as a minority business enterprise pursuant to Division 6 of this Subtitle.
The Purchasing Agent shall prepare and transmit a written report that shall include the metrics required in this section to the County Council and the County Executive annually by July 1.
The Purchasing Agent shall collect and maintain the metrics on Contractors and Subcontractors that are awarded construction contracts with the County.
The metrics shall include:
The number of Local Workers employed on the project.
The amount of hours worked by the Local Workers on the project.
The percentage of the overall project work hours worked by Local Workers on the project.
The wages paid to the Contractor's employees, benefits provided to employees, and any other fringe benefits provided by the Contractor to its employees.
The wages paid to the subcontractor's employees, benefits provided to employees, and any other fringe benefits provided by the Contractor to its employees.
The total number of County-based Minority Business Enterprises utilized on the contract, the total amount paid to the County-based Minority Business Enterprise, the percentage of the overall contract value paid to the County-based Minority Business Enterprise that shall also be subcategorized by the number, the amount paid, and the percentage of the overall contract spent on (i) African American Business Enterprises, (ii) Asian-American and Pacific Islander Business Enterprises, (iii) Latino Business Enterprises, (iv) Native American Business Enterprises, (v) Veteran Business Enterprises, and (vi) Women's Business Enterprises.
The Agency contracting with the Contractor or Subcontractor.
The performance of the Contractor or Subcontractor to include:
The Quality of work,
The timeliness of completion of the project,
The compliance with the budget; and
The regulatory compliance.
Whether the contract is a new or initial award, existing, renewal, or an extension for that fiscal year.
Whether the contract was awarded by:
Competitive sealed bidding pursuant to Section 10A-112,
Competitive sealed proposal pursuant to Section 10A-113, or
Through contract negotiation or sole source contract pursuant to Section 10A-114 specifying the reasons for not competitively bidding the procurement.
Whether a First Source and Local Hiring Agreement was a condition to contracting with the County.
Whether the Contractor or Subcontractor has complied with or is in compliance with the reporting requirement(s) of any subtitle, division, or subdivision of the Code.
Whether any waiver(s) authorized by the Code were granted to the Contractor or Subcontractor, the date of issuance of such waiver(s), any alternative minimum percentages that were applied to the contract due to any such waiver(s), and a description of the nature and justification for any such waiver(s).
Whether any penalties or other compliance actions brought against the Contractor or Subcontractor to enforce the requirements of this Division and, if so, a description of those actions.
Whether the contract awarded, renewed, or extended is in full compliance with this Division.