This section does not apply to: capital expenditures by the Department of Transportation or the Maryland Transportation Authority, in connection with State roads, bridges, or highways, as provided in § 12–202 of this title; or procurements by the Department of General Services for the purpose of modernizing cybersecurity infrastructure for the State valued below $1,000,000. The Board may control procurement by units. To implement the provisions of this Division II, the Board may: set policy; adopt regulations, in accordance with Title 10, Subtitle 1 of the State Government Article; and establish internal operational procedures consistent with this Division II. The Board shall ensure that the regulations of the primary procurement units provide for procedures that are consistent with this Division II and Title 13, Subtitle 4 of the State Personnel and Pensions Article and, to the extent the circumstances of a particular type of procurement or a particular unit do not require otherwise, are substantially the same. The Board may delegate any of its authority that it determines to be appropriate for delegation and may require prior Board approval for specified procurement actions. Except as limited by the Maryland Constitution, the Board may exercise any control authority conferred on a primary procurement unit by this Division II and, to the extent that its action conflicts with the action of the primary procurement unit, the action of the Board shall prevail. On or before December 1 each year, the Department of General Services shall submit a report to the Board on procurements made under subsection (a)(2) of this section that shall include for each procurement: the purpose of the procurement; the name of the contractor; the contract amount; the method of procurement utilized; the number of bidders who bid on the procurement; and the contract term. A contract to modernize an information technology system or to proceed with an expedited project as defined in § 3.5–301 of this article shall be expedited for approval by the Board and placed on the agenda of the Board as soon as practicable.

The Board shall appoint a Procurement Advisor, who serves at the pleasure of the Board. The Procurement Advisor shall: ensure that the State’s procurement system is utilizing the most advanced procurement methods and management techniques; examine all procurements that are subject to review by the Board and make recommendations to the Board as to the appropriateness of each procurement, with an emphasis on whether the proposed procurement: has been competitively conducted; and conforms to provisions of procurement law, procurement regulations, and best management practices; prevent and detect fraud, waste, and abuse and foster competition in the expenditure of State funds in the procurement of supplies, services, or construction; conduct investigations into procurement policies, practices, and procedures, as appropriate; investigate complaints made by State employees concerning fraud, waste, and abuse in the procurement process and any alleged violation of the procurement law or regulations; investigate complaints, other than formal bid protests filed under Title 15, Subtitle 2 of this article, made by contractors and other interested parties concerning fraud, waste, and abuse in the procurement process and any alleged violation of the procurement law or regulations; if apparent criminal violations are found in the course of an investigation, report findings to the Board of Public Works, Office of the Attorney General, United States Attorney, and State or local prosecutors, as appropriate; if other apparent violations of law or regulation are found in the course of an investigation, report findings to the Board of Public Works, the appropriate agency head, and any other appropriate body for administrative action; produce and submit to the Board of Public Works and the General Assembly, in accordance with § 2–1257 of the State Government Article, an annual report of the activities of the Procurement Advisor, including: all findings and recommendations for improvements to the procurement system; and the identification of barriers to effective broad–based competition in State procurement and recommendations for the elimination of these barriers; assist agencies and the public with questions regarding procurement policy; establish policies for the effective training of State procurement officials to ensure that the State’s procurement system is utilizing the most advanced procurement methods and management techniques; review internal audit reports and comment as appropriate; notify the Legislative Auditor when the Procurement Advisor undertakes an investigation under item (v) or (vi) of this paragraph. The Procurement Advisor shall: have access to all books, accounts, records, reports, any material related to contracts and procurement, and all other papers and equipment necessary to carry out its responsibilities; and have direct and prompt access to all heads of agencies involved in the expenditure of public funds. The Board shall appoint a General Counsel, who serves at the pleasure of the Board. The General Counsel shall be an attorney in this State. The General Counsel shall: provide independent legal advice to the Board; examine all procurements that are subject to review by the Board and make recommendations to the Board as to the legal sufficiency of the procurements, with an emphasis on whether the proposed procurement has been competitively conducted; assist the Procurement Advisor in investigations undertaken by the Procurement Advisor; assist the Procurement Advisor in responding to complaints made by State employees, contractors, and other interested parties concerning fraud, waste, and abuse in the procurement process or any alleged violation of the procurement law and regulations; compile information for distribution to State procurement officials relating to recent decisions of the Maryland State Board of Contract Appeals and State and federal courts concerning procurement, including any policy or legal guidance to the procurement officials based on these decisions; and review regulations proposed by the Board for legality and approve them for proposal and adoption. The General Counsel shall: have access to all books, accounts, records, any material related to contracts and procurement, and all other papers and equipment necessary to carry out its responsibilities; and have direct and prompt access to all heads of agencies involved in the expenditure of public funds. In accordance with the State budget, the Board may appoint any additional staff necessary to carry out its responsibilities under this Division II.

This section does not apply to capital expenditures by the Department of Transportation or the Maryland Transportation Authority, in connection with State roads, bridges, or highways, as provided in § 12-202 of this title. Notwithstanding any delegation of authority under § 12-101 of this subtitle, the Board retains full authority to engage in procurement of services and supplies for itself. By resolution, the Board may authorize a Board member or a unit to exercise all or any part of the authority of the Board for a specific Board procurement or for a particular class of Board procurements.

Except as provided in subsection (b) of this section, the Board may modify or waive any requirement under this Division II for a procurement contract or a class of procurement contracts that is to be performed entirely outside the United States, or any lease of real property outside this State, to the extent that: the purposes stated in § 11–201(a) of this article are fostered; the circumstances require the modification or waiver; and foreign or out–of–state contractors are expected to be involved in the procurement. The Board may not modify or waive the following requirements: § 14–404 of this article (“Coal in heating systems”); Title 16, Subtitle 2 of this article (“Offenses Subject to Debarment”); and Title 17 of this article (“Special Provisions –– State and Local Subdivisions”).

In this section, “Council” means the Procurement Improvement Council. There is a Procurement Improvement Council. The Council consists of the following members: the State Treasurer; the Chancellor of the University System of Maryland; the Chief Procurement Officer; the Secretary of Information Technology; the Secretary of Transportation; the Procurement Advisor of the Board; the Special Secretary for the Office of Small, Minority, and Women Business Affairs; the Secretary of Juvenile Services; the Secretary of Human Services; the Secretary of Health; the State Superintendent of Schools; the Comptroller; the Attorney General; the following individuals, appointed by the Governor with the advice and consent of the Senate: a representative of local government who has expertise in local procurement matters; two representatives of social service providers in the State; and a representative of a minority–, women–, or veteran–owned business; three members of the general public appointed by the presiding officers of the General Assembly, of whom: at least one shall have expertise in State procurement matters; and at least two shall represent a minority–, women–, or veteran–owned business; a member of the Senate, appointed by the President of the Senate; and a member of the House of Delegates, appointed by the Speaker of the House. If the State Treasurer is unable to attend a meeting of the Council, the Treasurer may designate the Deputy Treasurer to attend the meeting. If a member of the Council listed in paragraph (1)(ii) through (xi) of this subsection is unable to attend a meeting of the Council, the member may designate a senior management staff member with experience in procurement to attend the meeting. If the Comptroller is unable to attend a meeting of the Council, the Comptroller may send a designee to attend the meeting. If the Attorney General is unable to attend a meeting of the Council, the Attorney General may send a designee to attend the meeting. The Chief Procurement Officer is Chairman of the Council. The Council shall meet at least quarterly each year. The Chief Procurement Officer is the principal staff of the Council and the Council shall have any additional staff authorized in accordance with the State budget. The Council shall: ensure that the State’s procurement system is utilizing the most advanced procurement methods and management techniques, including policies, procedures, and forms for all procurement activity and contract management; effect and enhance communication between State units on procurement matters, with an emphasis on disseminating information on current developments and advances in procurement methods and management; provide a forum for the discussion of specific procurement issues and problems that arise, including: procurement officer training; risk analysis and insurance requirements; management of eMaryland Marketplace and other Internet procurement resources; use of eMaryland Marketplace and compliance with § 17–502 of this article; use of intergovernmental cooperative purchasing agreements; strategies to increase the participation of small, minority–owned, and women–owned businesses in procurement contracts; and any other issues or problems identified by the Council; advise the Board on problems in the procurement process and make recommendations for improvement of the process; review existing procurement regulations to: determine whether they fulfill the intent and purpose of the law, especially as it relates to fostering broad–based competition; and make recommendations on the regulations, if revising and restructuring them will result in easier understanding and use; and advise the General Assembly on proposed legislation in order to enhance the efficiency and transparency of State procurement.

The Board may establish other advisory bodies.

This section does not apply to capital expenditures by the Department of Transportation or the Maryland Transportation Authority, in connection with State roads, bridges, or highways, as provided in § 12–202 of this title. Subject to the authority of the Board, jurisdiction over procurement is as follows: the State Treasurer may engage in or control procurement of banking and financial services, insurance, and insurance services, as provided in Division I of this article and Article VI, § 3 of the Maryland Constitution; the Department of General Services may: engage in or control procurement of: leases of real property, including leases under Title 4, Subtitle 3 of this article; supplies, including supplies under Title 4, Subtitle 3 of this article, but excluding insurance and motor vehicle leases; construction, including construction under Title 4, Subtitle 4 of this article; construction related services, including those under Title 4, Subtitle 4 of this article; architectural or engineering services under Title 13, Subtitle 3 of this article; services by a unit, subject to any limitation in this Division II; leases of motor vehicles, as provided in Title 3, Subtitle 5 of this article; construction and construction–related services for State correctional facilities; supplies, materials, and equipment in support of construction and construction–related services for State correctional facilities in accordance with this Division II and Title 2 and Title 10, Subtitle 1 of the Correctional Services Article; telecommunication equipment, systems, or services, as provided in Title 3.5, Subtitle 4 of this article; information technology system modernization, as provided in Title 3.5, Subtitle 3 of this article; and cybersecurity upgrades and modernization, as provided in Title 3.5, Subtitle 3 of this article; while retaining oversight, delegate control of procurement activity to units with expertise in specified types of procurement; develop performance metrics for procurement activity and implement strategic sourcing when appropriate; compile comprehensive statistics on the procurement system by agency, amount, and type of procurement; effect and enhance communication on procurement matters, with an emphasis on disseminating information on current developments and advances in the management of the State procurement system; assist units with questions regarding procurement policy; oversee the implementation of procurement officer training; oversee the implementation of appropriate risk analysis and insurance requirements for State procurement; and coordinate with governmental entities and local entities to maximize use of intergovernmental purchasing agreements established in accordance with § 13–110 of this article, including working with the State Department of Education to procure local food for local school systems in accordance with § 7–137 of the Education Article; the Department of Transportation and the Maryland Transportation Authority, without the approval of any of the other primary procurement units, may engage in the procurement of: construction that is related to transportation, as provided in the Transportation Article; construction related services that are related to transportation, as provided in the Transportation Article; architectural or engineering services that are related to transportation, under Title 13, Subtitle 3 of this article; supplies for transportation–related activities, including information technology supplies that are subject to Title 3.5 of this article, but excluding: supplies funded by the proceeds from State general obligation bonds; and insurance; services for transportation–related activities, including information technology services that are subject to Title 3.5 of this article, but excluding banking and financial services under the authority of the State Treasurer under item (1) of this subsection; rolling stock and other property peculiar to the operation of a transit system, as provided in § 7–403 of the Transportation Article; supplies for aeronautics related activities, including motor vehicles and information processing supplies, but excluding: supplies funded by the proceeds from State general obligation bonds; and insurance; and services for aeronautics related activities, including information processing services, but excluding banking and financial services under the authority of the State Treasurer under item (1) of this subsection; and the Maryland Port Commission, without the approval of any of the other primary procurement units, may engage in the procurement of: supplies for port related activities, including motor vehicles and information processing supplies, but excluding: supplies funded by the proceeds from State general obligation bonds; and insurance; services for port related activities, including information processing services, but excluding banking and financial services under the authority of the State Treasurer under item (1) of this subsection; construction and construction related services for a port facility as defined in § 6–101(e) of the Transportation Article; port related architectural and engineering services under Title 13, Subtitle 3 of this article; and leases of real property for port related activities unless the lease payments are from the General Fund of the State.

This section does not apply to capital expenditures by the Department of Transportation or the Maryland Transportation Authority, in connection with State roads, bridges, or highways, as provided in § 12-202 of this title. Subject to the approval of the Board and under the coordination of the Governor, each of the primary procurement units shall: adopt regulations to carry out this Division II; send to the Board a copy of each proposed regulation under item (1) of this subsection; and send to the Board a copy of each internal operating procedure that the primary procurement unit adopts.

If authorized by the principal executive or legislative authority of the local government in accordance with local ordinance, a local health department may use either the State procurement system or the procurement system of the county in which the health department is located.

In this section the following words have the meanings indicated. “Public employer” means: a unit; a county; a municipality; a county board of education; or a special taxing district. Except as provided in subparagraph (ii) of this paragraph, “services” has the meaning stated in § 11–101 of this article. “Services” includes: construction–related services; architectural services; engineering services; and energy performance contract services. This section applies to a procurement contract with an estimated value of $2,000,000 or more. In response to a solicitation for a procurement contract issued by a public employer, a bidder shall disclose to the public employer the following: whether the bidder or any contractor that the bidder will subcontract with to perform the contract has plans, at the time the bid is submitted, to perform any services required under the contract outside the United States; and if services required under the contract are anticipated to be performed outside the United States: where the services will be performed; and the reasons why it is necessary or advantageous to perform the services outside the United States. Except as provided in paragraph (2) of this subsection, a public employer may not knowingly contract for the following services unless the services are to be provided in the United States: architectural services; construction services; engineering services; or energy performance contract services. A public employer may contract for services listed in paragraph (1) of this subsection that are provided outside the United States, if: the services are not available in the United States; the price of the services in the United States exceeds by an unreasonable amount the price of services provided outside the United States; or the quality of the services in the United States is substantially less than the quality of comparably priced services provided outside the United States. The Board shall adopt regulations defining the following terms for the purposes of this subsection: “unreasonable amount”; and “substantially less”.