The purposes and policies of this Division II include: providing for increased confidence in State procurement; ensuring fair and equitable treatment of all persons who deal with the State procurement system; providing safeguards for maintaining a State procurement system of quality and integrity; fostering effective broad–based competition in the State through support of the free enterprise system; promoting increased long–term economic efficiency and responsibility in the State by encouraging the use of recycled materials; providing increased economy in the State procurement system; getting the maximum benefit from the purchasing power of the State; simplifying, clarifying, and modernizing the law that governs State procurement; allowing the continued development of procurement regulations, policies, and practices in the State; and promoting development of uniform State procurement procedures to the extent possible. Unless otherwise indicated, this Division II shall be construed liberally and applied to promote the purposes and policies enumerated in subsection (a) of this section. If a provision of this Division II is inconsistent with a federal law, regulation, or grant agreement or other federal requirement that governs procurement or a procurement contract or with the terms of a gift, as defined in § 1–109 of the General Provisions Article, the federal requirement or the terms of the gift control the procurement or procurement contract. In this subsection, “bundle” means the consolidation of two or more procurement requirements for supplies or services previously provided or performed under separate contracts into a single solicitation seeking offers for a single contract that is unlikely to be accessible for award to a small business or minority business enterprise. This subsection does not apply if a unit bundles a procurement for the purpose of participating in the Small Business Reserve Program in accordance with Title 14, Subtitle 5 of this article. For the purpose of precluding or limiting participation by a minority business enterprise as defined under Title 14, Subtitle 3 of this article or a small business as defined under Title 14, Subtitle 2 of this article, a unit subject to this Division II may not: bundle a procurement; limit the number of competitive bidders or offerors; or limit participation to a predetermined group of bidders or offerors.

Except as otherwise expressly provided by law, this Division II applies to: each expenditure by a unit under a procurement contract; each procurement by a unit on behalf of another unit, governmental agency, or other entity; and each procurement by a unit, even if a resulting procurement contract will involve no expenditure by the State and will produce revenue for the State, for services that are to be provided for the benefit of: State officials, State employees, or students at a State facility, including a school, hospital, institution, or recreational facility; clients or patients at a State hospital or State institution; the public at a State recreational facility; or the public at a State transportation facility or State higher education facility, as required by the Board.

Except as provided in subsection (b) of this section, this Division II does not apply to: procurement by: the Blind Industries and Services of Maryland; the Maryland State Arts Council, for the support of the arts; the Maryland Health and Higher Educational Facilities Authority, if no State money is to be spent on a procurement contract; the Maryland Industrial Training Program or the Partnership for Workforce Quality Program in the Department of Commerce, for training services or programs for new or expanding businesses or industries or businesses or industries in transition; the Maryland Food Center Authority, to the extent the Authority is exempt under Title 10, Subtitle 2 of the Economic Development Article; the Maryland Public Broadcasting Commission: for services of artists for educational and cultural television productions; or when planning for or fulfilling the obligations of grants or cooperative agreements that support the educational and cultural activities of the Commission; public institutions of higher education, for cultural, entertainment, and intercollegiate athletic procurement contracts; the Maryland State Planning Council on Developmental Disabilities, for services to support demonstration, pilot, and training programs; the Maryland Historical Trust for: surveying and evaluating architecturally, archeologically, historically, or culturally significant properties; and other than as to architectural services, preparing historic preservation planning documents and educational material; the University of Maryland, for Global Campus Overseas Programs, if the University adopts regulations that: establish policies and procedures governing procurement for Global Campus Overseas Programs; and promote the purposes stated in § 11–201(a) of this subtitle; the Department of Commerce, for negotiating and entering into private sector cooperative marketing projects that directly enhance promotion of Maryland and the tourism industry where there will be a private sector contribution to the project of not less than 50% of the total cost of the project, if the project is reviewed by the Attorney General and approved by the Secretary of Commerce or the Secretary’s designee; the Rural Maryland Council; the Maryland State Lottery and Gaming Control Agency, for negotiating and entering into private sector cooperative marketing projects that directly enhance promotion of the Maryland State Lottery and its products, if the cooperative marketing project: provides a substantive promotional or marketing value that the lottery determines acceptable in exchange for advertising or other promotional activities provided by the lottery; does not involve the advertising or other promotion of alcohol or tobacco products; and is reviewed by the Attorney General and approved by the Maryland Lottery Director or the Director’s designee; the Maryland Health Insurance Plan established under Title 14, Subtitle 5 of the Insurance Article; the Maryland Energy Administration, when negotiating or entering into grants or cooperative agreements with private entities to meet federal specifications or solicitation requirements related to energy conservation, energy efficiency, or renewable energy projects that benefit the State; the Maryland Developmental Disabilities Administration of the Maryland Department of Health for family and individual support services, and individual family care services, as those terms are defined by the Maryland Department of Health in regulation; the Department of General Services for the rehabilitation of a structure that is listed in or eligible for listing in the National Register of Historic Places, to the extent the procurement is necessary to preserve the historic fabric of the structure impacted by the rehabilitation, as determined by the Department of General Services in consultation with the Maryland Historical Trust; the Department of Natural Resources, for: negotiating or entering into grants, agreements, or partnerships with nonprofit entities related to conservation service opportunities; and negotiating or entering into pay–for–success contracts in accordance with § 13–112.1 of this Division II; the State Archives for preservation, conservation, proper care, restoration, and transportation of fine art or decorative art that is: in the custody of the Commission on Artistic Property; and owned by or loaned to the State; and except for a project that is subject to Title 17, Subtitle 2 of this article, the Department of General Services, the Department of Housing and Community Development, the Department of Planning, and the Department of Transportation for negotiating or entering into agreements or partnerships with nonprofit entities for projects related to historic preservation, archaeology, or conservation service opportunities; procurement by a unit from: another unit; a political subdivision of the State; an agency of a political subdivision of the State; a government, including the government of another state, of the United States, or of another country; an agency or political subdivision of a government; or a bistate, multistate, bicounty, or multicounty governmental agency; or procurement in support of enterprise activities for the purpose of: direct resale; or remanufacture and subsequent resale. The following provisions of this Division II apply to each procurement enumerated in subsection (a) of this section: § 11–205 of this subtitle (“Collusion”); § 10–204 of this article (“Approval for designated contracts”); Title 12, Subtitle 2 of this article (“Supervision of Capital Expenditures and Real Property Leases”); § 13–219 of this article (“Required clauses – Nondiscrimination clause”); § 13–221 of this article (“Disclosures to Secretary of State”); Title 12, Subtitle 4 of this article (“Policies and Procedures for Exempt Units”); § 15–112 of this article (“Change orders”); § 15–113 of this article (“Liquidated damages policies and reporting”); Title 16 of this article (“Suspension and Debarment of Contractors”); and Title 17 of this article (“Special Provisions – State and Local Subdivisions”). A procurement by an entity listed in subsection (a)(1)(i) through (xiii) and (xvii) of this section shall be made under procedures that promote the purposes stated in § 11–201(a) of this subtitle. A unit that procures human, social, or educational services from an entity enumerated in subsection (a)(2) of this section shall publish in eMaryland Marketplace notice of a procurement contract or an extension or renewal of a procurement contract if: the procurement contract, extension, or renewal costs more than $50,000; and the procurement is made for 3rd party clients described in § 13–106 of this article. The notice required under this paragraph shall be published not more than 30 days after the execution and approval of the procurement contract or the extension or renewal of the procurement contract. The purchase of advisory services from the General Selection Board or the Transportation Selection Board under § 13–305 of this article shall be governed by the Maryland Architectural and Engineering Services Act. Section 13–218(f) of this article applies to a contract described under subsection (a)(1)(xviii)1 or (xx) of this section. Except as provided in Title 12, Subtitle 4 and Title 14, Subtitles 3 and 8 of this article and except for §§ 15–112 and 15–113 of this article, this Division II does not apply to the Maryland Stadium Authority. Except as provided in Title 12, Subtitle 4 and Title 14, Subtitle 3 of this article and except for § 15–113 of this article, this Division II does not apply to the Board of Trustees of the State Retirement and Pension System for: services of managers to invest the assets of the State Retirement and Pension System, including real and personal property; expenditures to manage, maintain, and enhance the value of the assets of the State Retirement and Pension System in accordance with investment guidelines adopted by the Board of Trustees; services related to the administration of the optional retirement program under Title 30 of the State Personnel and Pensions Article; services related to the administration of the Postretirement Health Benefits Trust Fund; and expenditures for the safe custody, domestic or global, of investments as provided under § 21–123(f) of the State Personnel and Pensions Article. In this subsection, “University” means the University System of Maryland, Morgan State University, or St. Mary’s College of Maryland. Except as otherwise provided in this subsection, this Division II does not apply to the University System of Maryland, Morgan State University, St. Mary’s College of Maryland, or Baltimore City Community College. A procurement by a University or Baltimore City Community College shall comply with the policies and procedures developed by the University or Baltimore City Community College and approved by the Board of Public Works and the Administrative, Executive, and Legislative Review Committee of the General Assembly in accordance with: § 12–112 of the Education Article for the University System of Maryland; § 14–109 of the Education Article for Morgan State University; § 14–405(f) of the Education Article for St. Mary’s College of Maryland; or § 16–505.3 of the Education Article for Baltimore City Community College. The review and approval of the Board of Public Works shall be required for the following types of contracts with a value that exceeds $1,000,000 for a University or $500,000 for Baltimore City Community College: capital improvements; and services. In its review of a contract for services or capital improvements with a value that exceeds $1,000,000, the Board of Public Works may request the comments of the appropriate agencies, including the Department of Budget and Management and the Department of General Services. For Baltimore City Community College contracts that are not subject to the review and approval of the Board of Public Works under subsubparagraph 1 of this subparagraph: contracts with a value of $100,000 or less shall be reviewed and approved by the President of Baltimore City Community College or the President’s designee; and contracts with a value that exceeds $100,000 but does not exceed $500,000 shall be approved by the Board of Trustees of Baltimore City Community College. The policies of a University or Baltimore City Community College shall: to the maximum extent practicable, require the purchasing of supplies and services in accordance with Title 14, Subtitle 1 of this article; promote the purposes of the regulations adopted by the Department of General Services governing the procurement of architectural and engineering services; promote the purposes of § 13–402 of the State Personnel and Pensions Article; to the maximum extent practicable, be similar to § 13–218.1 of this article; and to the maximum extent practicable, require the procurement of food in accordance with Title 14, Subtitle 7 of this article. Except as provided in paragraph (7) of this subsection, the following provisions of Division II of this article apply to a University and to Baltimore City Community College: § 11–205 of this subtitle (“Collusion”); § 11–205.1 of this subtitle (“Falsification, concealment, etc., of material facts”); § 13–219 of this article (“Required clauses – Nondiscrimination clause”); § 13–225 of this article (“Retainage”); Title 14, Subtitle 3 of this article (“Minority Business Participation”); Title 14, Subtitle 7 of this article (“Certified Local Farm and Fish Program”); Title 15, Subtitle 1 of this article (“Procurement Contract Administration”); § 15–226 of this article (“Policy established; timing of payments; notice upon nonpayment; disputes; appeals”); Title 16 of this article (“Suspension and Debarment of Contractors”); and Title 17, Subtitle 6 of this article (“Apprenticeship Requirements for Public Works Contracts”). Except as provided in paragraph (7) of this subsection, Title 14, Subtitle 8 of this article (“Employee Stock Ownership Plan Preference Program”) applies to Morgan State University, St. Mary’s College of Maryland, and Baltimore City Community College. If a procurement violates the provisions of this subsection or policies adopted in accordance with this subsection, the procurement contract is void or voidable in accordance with the provisions of § 11–204 of this subtitle. The State Board of Contract Appeals shall have authority over contract claims related to procurement contracts awarded by: the University System of Maryland before July 1, 1999; Morgan State University before July 1, 2004; and Baltimore City Community College before July 1, 2021. At the election of the Board of Regents of the University System of Maryland and subject to the approval of the Board of Public Works, the State Board of Contract Appeals shall have authority over contract claims related to procurement contracts awarded by the University after June 30, 1999. At the election of the Board of Regents of Morgan State University and subject to the approval of the Board of Public Works, the State Board of Contract Appeals shall have authority over contract claims related to procurement contracts awarded by the University after June 30, 2004. At the election of the Board of Trustees of St. Mary’s College of Maryland and subject to the approval of the Board of Public Works, the State Board of Contract Appeals shall have authority over contract claims related to procurement contracts awarded by St. Mary’s College of Maryland after June 30, 2006. At the election of the Board of Trustees of Baltimore City Community College and subject to the approval of the Board of Public Works, the State Board of Contract Appeals shall have authority over contract claims related to procurement contracts awarded by Baltimore City Community College after June 30, 2021. Except with regard to the provisions of § 15–113 of this article, paragraphs (3), (4), and (5) of this subsection do not apply to: procurement by a University or Baltimore City Community College from: another unit; a political subdivision of the State; an agency of a political subdivision of the State; a government, including the government of another state, of the United States, or of another country; an agency or political subdivision of a government; or a bistate, multistate, bicounty, or multicounty governmental agency; procurement by a University in support of enterprise activities for the purpose of: direct resale; remanufacture and subsequent resale; or procurement by the University for overseas programs; or procurement by the University System of Maryland for: services of managers to invest, in accordance with the management and investment policies adopted by the Board of Regents of the University System of Maryland, gift and endowment assets received by the University System of Maryland in accordance with § 12–104(e) of the Education Article; or expenditures to manage, maintain, and enhance, in accordance with the management and investment policies adopted by the Board of Regents of the University System of Maryland, the value of gift and endowment assets received by the University System of Maryland in accordance with § 12–104(e) of the Education Article. Except as provided in Title 12, Subtitle 4 and Title 14, Subtitle 3 of this article and except for § 15–113 of this article, this Division II does not apply to Maryland 529 for: services of managers to invest the assets of the Maryland Senator Edward J. Kasemeyer Prepaid College Trust in accordance with the comprehensive investment plan adopted by the State Treasurer under § 18–1906 of the Education Article; and expenditures to manage, maintain, and enhance the value of the assets of the Maryland Senator Edward J. Kasemeyer Prepaid College Trust in accordance with the comprehensive investment plan adopted by the State Treasurer under § 18–1906 of the Education Article. This Division II does not apply to a contract or grant awarded by a unit of State government to the Chesapeake Bay Trust for a project involving the restoration or protection of the Chesapeake Bay and other aquatic and land resources of the State. Except as provided in paragraph (2) of this subsection, this division does not apply to a public–private partnership under Title 10A of this article. To the extent otherwise required by law, the following provisions of this division apply to a public–private partnership under Title 10A of this article: § 11–205 of this subtitle (“Collusion”); § 11–205.1 of this subtitle (“Falsification, concealment, etc., of material facts”); Title 12, Subtitle 4 of this article (“Policies and Procedures for Exempt Units”); § 13–219 of this article (“Required clauses – Nondiscrimination clause”); § 15–113 of this article (“Liquidated damages policies and reporting”); Title 17, Subtitle 1 of this article (“Security for Construction Contracts”); Title 17, Subtitle 2 of this article (“Prevailing Wage Rates – Public Work Contracts”); and Title 18 of this article (“Living Wage”). Except as provided in paragraph (2) of this subsection, this Division II does not apply to the Maryland Corps Program established under Title 24, Subtitle 11 of the Education Article. The Maryland Corps Program established under Title 24, Subtitle 11 of the Education Article is subject to Title 14, Subtitle 3 and § 15–113 of this article. Except as provided in paragraph (2) of this subsection, this Division II does not apply to the Suitland Development Authority established under Title 12, Subtitle 12 of the Economic Development Article. The Suitland Development Authority established under Title 12, Subtitle 12 of the Economic Development Article is subject to Title 12, Subtitle 4 and Title 14, Subtitle 3 of this article.

A unit may not enter into a procurement contract except as allowed under this Division II. Except as otherwise provided in this Division II, if a procurement violates this Division II, the procurement contract is void. Whenever a procurement contract is void under this subsection, the contractor shall be awarded compensation for actual expenses reasonably incurred under the procurement contract, plus a reasonable profit, if the contractor: acted in good faith; did not directly contribute to a violation of this Division II; and had no knowledge of the violation before the procurement contract was awarded. Whenever a procurement violates this Division II, the Board may determine that the procurement contract is voidable, rather than void, if the Board determines that: all parties acted in good faith; ratification of the procurement contract would not undermine the purposes of this Division II; and the violation or series of violations was insignificant or otherwise did not prevent substantial compliance with this Division II. Whenever a procurement contract is voidable under this subsection and the contractor has not acted in violation of this Division II, the unit may: ratify the procurement contract if the unit determines that ratification is in the best interests of the State; or void the procurement contract and award the contractor compensation for actual expenses reasonably incurred under the contract, plus a reasonable profit. Whenever a procurement contract is voidable under this subsection and the contractor has acted in violation of this Division II, the unit: may void the procurement contract; or without prejudice to the State’s right to appropriate damages, may ratify the procurement contract if the unit determines that ratification is in the best interests of the State.

This section is broadly applicable to all procurements by the State. A person who, for the purpose of defrauding the State, acts in collusion with another person in connection with the procurement process is liable for damages equal to 3 times the value of the loss to the State that is attributable to the collusion. A procurement officer who has reason to believe that collusion has occurred in connection with the procurement process shall send to the Office of the Attorney General written notice that states the belief and its basis. The Attorney General may begin an action in the appropriate court for damages under subsection (b) of this section. If there is reason to believe that collusion has occurred in connection with the procurement process, all relevant documents shall be kept until the Attorney General gives notice that they may be destroyed. On request by the Office of the Attorney General, relevant documents shall be made available immediately.

In connection with a procurement contract a person may not willfully: falsify, conceal, or suppress a material fact by any scheme or device; make a false or fraudulent statement or representation of a material fact; or use a false writing or document that contains a false or fraudulent statement or entry of a material fact. A person may not aid or conspire with another person to commit an act under subsection (a) of this section. A person who violates any provision of this section is guilty of a felony and on conviction is subject to a fine not exceeding $20,000 or imprisonment not exceeding 5 years or both.

Unless otherwise indicated in the regulation, a regulation adopted under this Division II applies to a procurement contract if: the regulation is in effect on the day that the parties execute the procurement contract; and the procurement contract is governed by this Division II. A regulation adopted under this Division II does not affect the rights of a unit or contractor under a procurement contract that was entered into before the effective date of the regulation. A requirement of law that a procurement contract contain a particular provision is satisfied if the procurement contract includes notice of the provision, including the subject matter of the provision.

Each determination required under this Division II shall be: in writing; based on written findings of the public official or employee who makes the determination; and kept, for at least 3 years, in an official procurement contract file.