In this subtitle the following words have the meanings indicated. “Designated procurement unit” means: the Department of General Services; the Department of Transportation; or the Department of Information Technology, only with respect to an information technology master contract executed before July 1, 2022, until the earlier of: the expiration date of all information technology master contracts; or June 30, 2027. “eMaryland Marketplace” or “eMaryland Marketplace Advantage” means the Internet–based procurement system managed by the Department of General Services. “Evaluated bid price” means the price of a bid after adjustment in accordance with objective measurable criteria. “Master contracting” means a streamlined procurement method that provides for the qualification of bidders and offerors for the procurement of services, supplies, or commodities. “Objective measurable criteria” means standards that enable the State to compare the economy, effectiveness, or value of the subject of the bids. “Objective measurable criteria” includes standards of reliability, operational costs, maintainability, useful life, and residual value. “Person” includes, unless the context requires otherwise: the State; a county, a municipal corporation, or any other political subdivision; and any unit of the State government or a political subdivision. “Task order” means a procurement process in which only those vendors with master contracts may compete to provide the services, supplies, or commodities under the procurement.

The following procurement methods are authorized at the procurement officer’s discretion, where applicable: competitive sealed bids under § 13–103 of this subtitle; competitive sealed proposals under § 13–104 or § 13–105 of this subtitle; noncompetitive negotiation under § 13–106 of this subtitle; sole source procurement under § 13–107 of this subtitle; emergency or expedited procurement under § 13–108 of this subtitle; small procurement under § 13–109 of this subtitle; an intergovernmental cooperative purchasing agreement under § 13–110 of this subtitle; auction bids under § 13–111 of this subtitle; architectural, engineering, and land surveying services qualification based selection under § 13–112 of this subtitle; master contracting under § 13–113 of this subtitle; legislative fast–track procurements under § 13–117 of this subtitle; or competitive proof of concept procurements under § 13–116 of this subtitle. In awarding a procurement contract for human, social, cultural, or educational service, the preferred method is by competitive sealed proposals under § 13–104 of this subtitle. In awarding a procurement contract for a lease of real property, the preferred method is by competitive sealed proposals under § 13–105 of this subtitle. Procurement under an intergovernmental cooperative purchasing agreement is appropriate in situations where the State is expected to achieve a better price as the result of economies of scale or to otherwise benefit by purchasing in cooperation with another governmental entity.

A unit may not charge a fee to access eMaryland Marketplace. Subject to approval by the Board of Public Works, the Chief Procurement Officer may establish fees for the use of eMaryland Marketplace by an entity that publishes a notice of a procurement, conducts a procurement, or publishes a notice of award. The Chief Procurement Officer may not charge a unit, as defined in § 11–101 of this article, a fee under this subsection. Subject to approval by the Board of Public Works, the Chief Procurement Officer, in consultation with the Department of Budget and Management, may establish fees for: training; strategic sourcing; and administrative costs. There is an Operations Revenue Fund in the Department of General Services. The Fund is a special, nonlapsing fund that is not subject to § 7–302 of this article. The State Treasurer shall hold the Fund separately, and the Comptroller shall account for the Fund. The Fund consists of any fees imposed and collected under subsection (b)(1) or (c) of this section and § 13–226(c) of this title. The Fund shall be used by the Department of General Services to cover the actual documented direct and indirect operating expenses of the Office of State Procurement.

Whenever procurement is based on competitive sealed bids, a procurement officer shall seek bids by issuing an invitation for bids. Subject to subsection (b) of this section, an invitation for bids shall include: the specifications of the procurement contract, including the expected degree of minority business enterprise participation, as provided in § 14–303(b) of this article; a summary of the factors used to determine the expected degree of minority business enterprise participation for the procurement contract, including subcontracting opportunities identified for the project, any applicable North American Industry Classification System codes linked to the subcontracting opportunities, and the number of certified minority business enterprises in those industries; whether the procurement contract will be awarded based on the lowest bid price, the lowest evaluated bid price or, if the procurement is subject to § 11–202(3) of this article, the bid most favorable to the State; if the procurement contract will be based on evaluated bid price, the objective measurable criteria by which the lowest evaluated bid price will be determined; and if the head of the unit or the head of the unit’s designee has so designated, the small business preference. Whenever a procurement officer determines that an initial preparation of specifications for price bids is impracticable, the invitation for bids may: include a request for unpriced technical offers or samples; and direct bidders to submit price bids: with the unpriced technical offers or samples; or after the unit evaluates the technical offers or samples and finds that they are acceptable under the criteria set forth in the invitation for bids. A unit shall consider the prices submitted by bidders whose technical offers or samples have been found acceptable. Price bids may not be opened until after the unit has completed evaluation of the technical offers or samples. A price bid may not be opened at any time if the bid is submitted by a bidder whose technical offer or sample has been evaluated as unacceptable to the unit. A procurement officer shall return an unopened price bid submitted by a bidder whose technical offer or sample has been evaluated as unacceptable. A unit shall give public notice of an invitation for bids before bid opening in accordance with this subsection. A unit shall give reasonable notice that shall be at least 10 days before bid opening. The unit shall publish notice in eMaryland Marketplace at least 20 days before bid opening if: the procurement officer reasonably expects bid prices to exceed the small procurement amount specified in § 13–109 of this subtitle or a lower amount set by the Board by regulation in accordance with Title 10, Subtitle 1 of the State Government Article; and at least part of the procurement contract is to be performed in this State or the District of Columbia. In addition to any notice required under this subsection, a unit may publish notice of an invitation for bids: on a bid board or eMaryland Marketplace; or in a newspaper, periodical, or trade journal. A procurement officer shall: open bids in public at the time and place designated in the invitation for bids; and announce, record, and post: the name of each bidder; and the amount of each bid. Except as provided in paragraph (3) of this subsection, a bid is irrevocable, after bid opening, for the period specified in the invitation for bids. A procurement officer may allow a bidder to correct or withdraw a bid if correction or withdrawal is: allowed under regulations adopted under this Division II; and approved in writing by the Office of the Attorney General. After obtaining any approval required by law, the procurement officer shall award the procurement contract to the responsible bidder who submits the responsive bid that: is the lowest bid price; if the invitation for bids so provides, is the lowest evaluated bid price; or for procurement subject to § 11–202(3) of this article, is the bid most favorable to the State. If, after competitive sealed bids have been opened, a procurement officer determines that only 1 responsible bidder has submitted a responsive bid, the unit may negotiate the procurement contract with that 1 bidder under the procedure for sole source procurement. After competitive sealed bids have been opened, a procurement officer may award a procurement contract on the basis of revised bids if: all bids are rejected under § 13–206(b) of this title; all bid prices exceed the funds available for the procurement; or with the approval of the head of the unit or a designee, the procurement officer determines that all bids are unreasonable as to at least 1 requirement and the delay that would result from issuing a new invitation for bids with revised specifications or quantities would be fiscally disadvantageous or otherwise not in the best interests of the State. If there is more than 1 bidder, discussions about revised specifications or quantities shall be conducted with all responsible bidders who submitted responsive bids. The bidders shall be treated fairly and equally with respect to any discussions. As promptly as possible, the procurement officer shall: issue an invitation for revised bids, which shall state whether the award will be made without competitive negotiations; and require a prompt response to that invitation. An invitation for revised bids is not subject to the notice requirements in subsection (c) of this section. After revised bids have been submitted, negotiations with bidders may not be conducted unless the procurement officer determines that there is a compelling reason to negotiate. After revised bids have been opened and any approval required by law has been obtained, the procurement officer shall award the procurement contract to the responsible bidder who submits a responsive bid that: is the lowest bid price; if the invitation for revised bids so provides, is the lowest evaluated bid price; or for procurement subject to § 11–202(3) of this article, is the bid most favorable to the State. A responsive bid or proposal shall include the criteria specified in subsection (a) of this section. Not more than 30 days after the execution and approval of a procurement contract in excess of the small procurement amount specified in § 13–109 of this subtitle awarded under this section, or a lower amount set by the Board by regulation in accordance with Title 10, Subtitle 1 of the State Government Article, a unit shall publish notice of the award in eMaryland Marketplace.

Competitive sealed proposals is the preferred method for: human, social, cultural, or educational services; and security services with an expected value that is greater than $1,000,000. Whenever procurement is based on competitive sealed proposals, a procurement officer shall seek proposals by issuing a request for proposals. A request for proposals shall include a statement of: the scope of the procurement contract, including the expected degree of minority business enterprise participation, as provided in § 14–303(b) of this article; a summary of the factors used to determine the expected degree of minority business enterprise participation for the procurement contract, including subcontracting opportunities identified for the project, any applicable North American Industry Classification System codes linked to the subcontracting opportunities, and the number of certified minority business enterprises in those industries; the factors, including price, that will be used in evaluating proposals; and the relative importance of each factor. A unit shall publish a request for proposals in the same manner as required for an invitation for bids. After receipt of proposals but before the procurement officer awards the procurement contract, a unit may conduct discussions with an offeror to: obtain the best price for the State; and ensure full understanding of: the requirements of the State, as set forth in the request for proposals; and the proposal submitted by the offeror. If discussions are conducted, the unit: shall conduct the discussions in accordance with regulations adopted under this Division II; shall provide an opportunity to participate to each responsible offeror who submits a proposal that, in the judgment of the procurement officer, is reasonably susceptible of being selected for award; shall treat all of those responsible offerors fairly and equally; may allow all of those responsible offerors to revise their initial proposals by submitting best and final offers, if discussions indicate that it would be in the best interests of the State to do so; may conduct more than 1 series of discussions and requests for best and final offers; and may not disclose to an offeror any information derived from a proposal of or discussions with a competing offeror. Except as provided in subparagraph (ii) of this paragraph, an oral presentation is required when: the total value of the contract is expected to exceed $2,000,000 for architectural and engineering services; the total value of the contract is expected to exceed $10,000,000 for construction and construction related services; or for any other procurement, including information technology and professional services, the total value of the contract is expected to exceed $5,000,000. If the procurement officer makes a written determination that oral presentations are unlikely to aid in the evaluation process, oral presentations are not required. Except as provided in paragraph (2) of this subsection: a proposal is irrevocable for the period specified in the request for proposals; and a best and final offer is irrevocable for the period specified in the request for best and final offers. A procurement officer may allow an offeror to correct or withdraw a proposal or best and final offer if correction or withdrawal is: allowed under regulations adopted under this Division II; and approved in writing by the Office of the Attorney General. After obtaining any approval required by law, the procurement officer shall award the procurement contract to the responsible offeror who submits the proposal or best and final offer determined to be the most advantageous to the State considering the evaluation factors set forth in the request for proposals. A unit shall publish notice of a contract in excess of the small procurement amount specified in § 13–109 of this subtitle awarded under this section, or a lower amount set by the Board by regulation in accordance with Title 10, Subtitle 1 of the State Government Article in eMaryland Marketplace. An unsuccessful offeror may submit a request to the procurement officer for a debriefing of the recommended contract award. After receiving a request for a debriefing under paragraph (1) of this subsection, the procurement officer shall provide the debriefing: as soon as is feasible after receiving the request; and before the recommended contract award is presented for approval to the head of the unit or the Board. Except for information reasonably determined by the procurement officer to be confidential, proprietary, or privileged, a debriefing required under paragraph (1) of this subsection shall include all relevant information. The Office of State Procurement shall establish guidelines and procedures for debriefings, including a deadline for an unsuccessful offeror to submit a request for a debriefing.

A request for proposals for a lease of real property shall include: a work statement that shall be used as a basis for the evaluation of proposals; a statement of the factors, including price, that will be used in evaluating proposals; and a statement of the relative importance of each factor. Subject to the requirements of Title 4, Subtitle 3, Part III of this article, a unit shall publish a request for proposals in the same manner as required for an invitation for bids. After proposals have been opened, the procurement officer shall reject any proposal that is unacceptable. If more than three proposals are submitted, the procurement officer may conduct negotiations with the offerors who, based on a preliminary evaluation in accordance with the evaluation factors, have submitted the three best proposals. Negotiations are not required if the request for proposals: notified all offerors that negotiations would not be conducted; and requested best and final offers. The procurement officer: may establish a maximum fair market rental rate for each premises offered; during negotiations, may not disclose to an offeror any information derived from the proposal of a competing offeror, except price and information directly related to price; and after negotiations, may reject a proposal that exceeds the maximum fair market rate. After receiving best and final offers: a procurement officer may conduct further negotiations with the successful offeror to obtain for the State the best price, conditions, and services; and any modification of a successful offer must be in the best interests of the State. By direct solicitation and without republication of notice, the procurement officer may acquire other offers if: negotiations and best and final offers fail to produce a lease for real property with terms comparable to market rental rates in the boundaries in which the unit must obtain the lease; and the final offeror did not accept a lease with terms comparable to the market rental rates; or the public notice of requests for proposals fails to produce a response or offer of a lease for real property. If a procurement officer determines that renewal of an existing lease is in the best interests of the State, the procurement officer may negotiate the renewal without soliciting other offers. After obtaining any approval required by law, the procurement officer shall award the procurement contract to the responsible offeror who submits the proposal or best and final offer determined to be the most advantageous to the State considering: the price and evaluation factors set forth in the request for proposals; and the modifications to those factors under the negotiation process.

A procurement officer may award a procurement contract on the basis of noncompetitive negotiation if: the procurement is for human, social, or educational services to be provided directly to individuals with disabilities, individuals who are aged, indigent, disadvantaged, unemployed, mentally or physically ill, or displaced or minors; the procurement is one of a class for which the Chief Procurement Officer or the Chief Procurement Officer’s designee has approved the use of noncompetitive negotiation; and with the approval of the head of the unit, the procurement officer determines that: at least 2 sources are available for the services; but the absence of effective competition makes it unreasonable to expect bids or proposals from the available sources. Whenever a procurement is based on noncompetitive negotiation, a unit shall publish a request for general expressions of interest. A request for general expressions of interest shall: state the general requirement for services; request interested service providers to respond in writing with general expressions of interest; and be published in the same manner as required for an invitation for bids. To satisfy all or part of the requirements of the State as they occur, and without additional advertising, the procurement officer may conduct discussions with any responsible service provider who has submitted an expression of interest. As far as practicable in the course of administering a program, the unit shall treat fairly and equally with respect to discussions all responsible service providers who have submitted expressions of interest. After obtaining any approval required by law, the unit may award a procurement contract if the head of the unit determines, on the basis of continuing discussions or past program experience, that an award will serve the best interests of the State. A unit shall publish in eMaryland Marketplace notice of a procurement contract awarded under this section.

Whenever a procurement officer determines that there is only 1 available source for the subject of a procurement contract, the procurement officer may award the procurement contract without competition to that source. Before awarding a procurement contract to a sole source, the procurement officer shall obtain: the approval of the head of the unit; and any other approval required by law. Subject to paragraphs (2) and (3) of this subsection, with the prior written approval of the Attorney General, a unit may enter into a sole source contract to obtain the services of a contractor in connection with: threatened or pending litigation; appraisal of real property for acquisition by the State; or collective bargaining. This subsection applies only to a procurement in which: a unit obtains the services of a contractor to represent the State; and the nature of the services to be performed requires confidentiality. This subsection does not apply if the unit reasonably can anticipate a continuing need for a contractor described in paragraph (1)(ii) or (iii) of this subsection. Not more than 30 days after the execution and approval of a procurement contract awarded under this section, a unit shall publish in eMaryland Marketplace notice of the award.

In this section, “emergency” means an occurrence or condition that creates an immediate and serious need for services, materials, or supplies that: cannot be met through normal procurement methods; and are required to avoid or mitigate serious damage to public health, safety, or welfare. Except as provided in § 11–205 (“Collusion”), § 10–204 (“Approval for designated contracts”), § 13–219 (“Required clauses – Nondiscrimination clause”), Title 16 (“Suspension and Debarment of Contractors”), or Title 17 (“Special Provisions – State and Local Subdivisions”) of this article, with the approval of the head of a unit, its procurement officer may make an emergency procurement by any method that the procurement officer considers most appropriate to avoid or mitigate serious damage to public health, safety, or welfare. Except when delaying a procurement by up to 48 hours would likely result in imminent harm, after obtaining the approval of the head of the unit and before making an emergency procurement, the procurement officer shall obtain approval of the use of emergency procurement procedures from the Chief Procurement Officer, or the Chief Procurement Officer’s designee. Within 48 hours after receiving a request to use emergency procurement procedures, the Chief Procurement Officer or designee shall approve or disapprove the request. If the Chief Procurement Officer or designee does not approve or disapprove the request to use emergency procurement procedures within 48 hours after receiving the request, the request shall be considered to be approved. The procurement officer shall: obtain as much competition as possible under the circumstances, including by making reasonable efforts to solicit at least three oral quotes; limit the emergency procurement to the procurement of only those items, both in type and quantity, necessary to avoid or to mitigate serious damage to public health, safety, or welfare; before awarding an emergency procurement contract to a prospective contractor, evaluate the contractor’s ability to perform the requirements of the contract based on: the length of time the contractor has been in business; the contractor’s level of experience providing the types and amounts of supplies, services, maintenance, commodities, construction, or construction–related services required under the contract; and the contractor’s history of successful procurement contracts with the State and other jurisdictions; execute a written contract with the successful contractor which includes the terms of the emergency procurement; and not more than 15 days after awarding the procurement contract, submit to the Board a written report that gives the justification for use of the emergency procurement procedure. This paragraph applies only to an emergency procurement contract with a value of $1,000,000 or more. In advance of or concurrent with the execution of an emergency procurement contract that is subject to this paragraph, a unit may not pay an amount that exceeds $2,000,000, plus 30% of the contract value in excess of $2,000,000. Unless authorized by the Board, the unit may not make any additional payment under the contract until at least 30 days after the execution of the contract. Not later than 7 days after awarding an emergency procurement contract that is subject to this paragraph, a unit shall submit a copy of the contract to the Board. The Board may: review an emergency procurement contract submitted under this paragraph at a regularly scheduled meeting of the Board or at an emergency meeting called for that purpose; and direct the unit or the appropriate control agency to take any action, including canceling or rescinding the contract, that the Board deems appropriate. If supplies or commodities procured under an emergency procurement contract are not delivered and used within 1 month after the date the contract is awarded, the unit shall: prepare a report describing the delivery and use status of supplies and commodities procured under the contract at least once per month until all supplies and commodities have been delivered and used; and submit the reports prepared under this paragraph to the Board, the appropriate control agency, and, in accordance with § 2–1257 of the State Government Article, the Senate Budget and Taxation Committee, the Senate Committee on Education, Energy, and the Environment, the House Appropriations Committee, the House Health and Government Operations Committee, and the Joint Audit and Evaluation Committee. A procurement contract awarded under this subsection shall include provisions addressing the contractor’s ability to perform the requirements of the contract within the emergency time frame. Notwithstanding subsection (e) of this section, on the day of the execution and approval of a procurement contract awarded under this subsection, or as soon as practicable thereafter, a unit shall publish in eMaryland Marketplace notice of the award. This paragraph applies only to the award of a contract or a contract modification made under this subsection that, with prior modifications, exceeds the small procurement amount specified in § 13–109 of this subtitle. Within 15 days after awarding a contract or a contract modification, a unit shall submit to the Board and the appropriate control agency a report that includes: the basis and justification for the emergency procurement including the date the emergency first became known; a listing of supplies, services, maintenance, commodities, construction, or construction–related services procured; the names of all persons solicited and a justification if the solicitation was limited to one person; the prices and times of performance proposed by the persons responding to the solicitation; the name of and basis for the selection of a particular contractor; the amount and type of the contract or contract modification; a listing of any prior or related emergency contracts, including all contract modifications, executed for the purposes of avoiding or mitigating the particular emergency, including the aggregate costs; and the identification number, if any, of the contract file. The Board may adopt regulations to carry out this paragraph. Consistent with the requirements of subsection (b)(1) of this section, the State Highway Administration may enter into procurement contracts related to the pretreatment and removal of snow and ice as required or authorized under Title 8 of the Transportation Article. Beginning on June 30, 2016, and no later than June 30 of each succeeding year, the State Highway Administration shall submit to the Board a written report on the operation and effectiveness of the procurement contracts entered into under this subsection during the previous year. The report shall include: the number of contracts awarded; the total dollar value of the contracts awarded; and the amount of contracting dollars expended with minority business enterprises, certified small businesses, and certified veteran–owned businesses, as defined under Title 14 of this article. The Board, in consultation with the State Highway Administration, may adopt regulations to carry out the requirements of this subsection. Except as provided in § 11–205 (“Collusion”), § 10–204 (“Approval for designated contracts”), § 13–219 (“Required clauses – Nondiscrimination clause”), Title 16 (“Suspension and Debarment of Contractors”), or Title 17 (“Special Provisions – State and Local Subdivisions”) of this article, with the approval of the head of the unit and the Board, a unit’s procurement officer may make a procurement on an expedited basis if the head of the unit and the Board find that: urgent circumstances require prompt action; an expedited procurement best serves the public interest; and the need for the expedited procurement outweighs the benefits of making the procurement on the basis of competitive sealed bids or competitive sealed proposals. The procurement officer shall attempt to obtain as much competition as reasonably possible. Except as provided in subsection (b)(7) of this section, not more than 30 days after the execution and approval of a procurement contract awarded under this section, a unit shall publish in eMaryland Marketplace notice of the award. For real property leases procured under this section, the term of the lease shall be for the minimum period of time practicable. The Board may adopt regulations to carry out this section. The Special Secretary for the Office of Small, Minority, and Women Business Affairs, in consultation with the Secretary of Transportation and the Attorney General, shall establish guidelines for each unit to consider when determining the appropriate minority business enterprise participation percentage goal and outreach for an emergency procurement contract.

In this section, “small procurement” means a procurement for which: a unit spends $100,000 or less; a contractor provides services subject to § 11–202(3) of this article for expected annual revenues of $100,000 or less; the Department of General Services or the Department of Transportation is seeking to award a procurement contract for a construction with a value that is $200,000 or less; the Department of Natural Resources is seeking to award a procurement contract for capital projects or maintenance with a value that is $200,000 or less; or for purposes of administering Title 29, Subtitle 1 of the State Personnel and Pensions Article, the State Retirement Agency spends $100,000 or less during a fiscal year for: expenses related to independent medical evaluations by a physician; and any expenses related to testimony by the physician at administrative hearings on behalf of the Agency. A unit may make small procurements in accordance with the regulations of primary procurement units. A primary procurement unit may not create a small procurement by artificial division of a procurement. Any regulation of a primary procurement unit to govern small procurements: shall provide for a simplified administrative procedure; shall be consistent with the basic intent of this Division II; and may not be disadvantageous economically to the State. At least every 3 years, the Board shall: review the prevailing costs of labor and materials; and if warranted by changes in cost, recommend to the General Assembly appropriate adjustments in the ceiling for a small procurement. If a primary procurement unit determines that a unit does not adhere to the established small procurement regulations, the primary procurement unit may limit or revoke a unit’s ability to conduct small procurements.

In this section the following words have the meanings indicated. “Cooperative entity” means one or more State or local entities that enter into an agreement for the cooperative or joint administration of programs. “Governmental entity” means: the federal government or an agency or other instrumentality of the federal government; another state or an agency or other instrumentality of another state; a bistate or multistate agency; a county, municipal corporation, or other political subdivision of the State or of another state, or an agency or other instrumentality of the political subdivision; a bicounty or multicounty agency; a primary procurement unit; or an affiliation, alliance, consortium, or group composed solely of governmental entities that is established for purposes of promoting intergovernmental cooperative purchasing. “Intergovernmental cooperative purchasing agreement” means a contract: entered into by at least one governmental entity and a person selected in a manner that is consistent with the purposes set forth under § 11–201 of this article; that is available for use by the governmental entity entering the contract and at least one additional governmental entity which may, but need not be, an original party to the contract; and that is intended to promote efficiency and savings that can result from intergovernmental cooperative purchasing; or between a primary procurement unit and a person who, at the time the intergovernmental cooperative purchasing agreement is awarded, has a contract with the federal government or an agency or other instrumentality of the federal government, and who agrees to provide the unit with identical prices, terms, and conditions as stipulated in the federal contract. “Local entity” means a county, municipal corporation, bicounty or multicounty agency, public authority, special taxing district, or other political subdivision or unit of a political subdivision of this State. “Local entity” includes boards of education and library boards that receive funding from the State. “Nonprofit entity” means�a corporation incorporated in the State, or otherwise qualified to do business in the State that has been determined by the Internal Revenue Service to be exempt from taxation under § 501(c)(3), (4), or (6) of the Internal Revenue Code. “State entity” means a department, board, commission, agency, or a subunit in the Executive branch of State government. Subject to § 12–107 of this article, a primary procurement unit procurement officer shall make a determination, in accordance with paragraph (2) or (3) of this subsection, before the primary procurement unit may: initially sponsor or participate in an intergovernmental cooperative purchasing agreement; renew an intergovernmental cooperative purchasing agreement; or modify an intergovernmental cooperative purchasing agreement. A determination under paragraph (1)(i) of this subsection shall be in writing and include: sufficient evidence that the intergovernmental cooperative purchasing agreement: will provide cost benefits to the State; or will promote administrative efficiencies or promote intergovernmental cooperation; and a statement that the intergovernmental cooperative purchasing agreement: is in the best interest of the State; and is not intended to evade the purposes of this Division II. A determination under paragraph (1)(ii) or (iii) of this subsection shall be in writing and include: sufficient evidence that the intergovernmental cooperative purchasing agreement: will provide cost benefits to the State; and will promote administrative efficiencies or promote intergovernmental cooperation; and a statement that the intergovernmental cooperative purchasing agreement: is in the best interest of the State; and is not intended to evade the purposes of this Division II. A primary procurement unit shall post each determination required under this subsection on the primary procurement unit’s website. If a primary procurement unit sponsors an intergovernmental cooperative purchasing agreement: the contract shall be awarded in the same manner as the contract would be awarded under this Division II if the unit was the sole participant under the contract, including compliance with all notice requirements; and all procedures under this Division II, including procedures governing contract claims and protests, shall apply. If a primary procurement unit participates in an intergovernmental cooperative purchasing agreement, any protest or contract claim involving the agreement shall be handled in accordance with the terms of the agreement. If a primary procurement unit sponsors or participates in an intergovernmental cooperative purchasing agreement, the intergovernmental cooperative purchasing agreement shall be: approved by: the head of the primary procurement unit or the head of the primary procurement unit’s designee; or the Chief Procurement Officer or the Chief Procurement Officer’s designee; and subject to any other approval required by law. Except as provided in paragraph (2) of this subsection, each procurement contract for supplies or services entered into by a State or local entity shall include a provision that facilitates other State and local entities and nonprofit entities to participate in the contract. This subsection does not apply to: a procurement for a capital facility, improvement, or other unique purchase; or a procurement with a projected value of less than $100,000. This subsection does not apply if the State or local entity determines that including the provision would: undermine the desired timing or effect of the procurement; interfere with the State or local entity’s ability to meet: the minority business enterprise goals provided under § 14–302 of this article or any other minority business enterprise program sponsored by the local entity; or the Small Business Reserve Program requirements under § 14–502 of this article or any other small business procurement program sponsored by the local entity; or not be in the best interest of the entity. A State or local entity may enter into an agreement for the cooperative or joint administration of programs with one or more other State or local entities. A cooperative entity established under this section may administer the programs and exercise the powers and duties specifically delegated to the cooperative entity by the agreement that established the cooperative entity. An agreement described under this subsection does not relieve a State or local entity or other participant of the agreement from any obligation or responsibility imposed on the entity by law. Notwithstanding any other law, a local entity may participate in an existing State or local contract drafted in accordance with this section, if the governing body of the entity determines that participation would: provide a cost savings in purchase price or administrative burden; or further other policy goals including operational and energy–efficiency goals related to the purchase, operation, or maintenance of the supply or service.

This section applies to the procurement of supplies and services by a primary procurement unit. Whenever the head of a primary procurement unit or designee determines that it is in the best interest of the State for a procurement contract to be based on auction bids, a procurement officer shall seek bids by issuing an invitation for auction bids. Subject to subsection (c) of this section, an invitation for auction bids shall include: the specifications of the procurement contract; whether the procurement contract will be awarded based on the lowest bid price or the lowest evaluated bid price; if the procurement contract will be based on evaluated bid price, the objective measurable criteria by which the lowest evaluated bid price will be determined; the small business preference, if designated under § 13–103 of this subtitle; and the date and time when bidding will commence and the date and time when bidding will end or the event upon which bidding will end. In the discretion of the procurement officer, the invitation for auction bids may: include a request for unpriced technical offers or samples; direct bidders to submit price bids after the unit evaluates the technical offers or samples and finds they are acceptable under the criteria set forth in the invitation for auction bids; and inform all bidders who submitted technical offers or samples of the identity of each bidder who submitted an acceptable technical offer or sample. Price bids may not be received until after the unit has completed evaluation of the technical offers or samples. A price bid may not be received at any time if the bid is submitted by a bidder whose technical offer or sample has been evaluated as unacceptable to the unit. A unit shall give public notice of an invitation for auction bids in the same manner as required for an invitation for bids. Multiple price bids are permitted in response to an invitation for auction bids. When a bidder submits multiple bids, each bid shall be judged independently and shall not revoke previous bids of that bidder. A procurement officer shall: receive bids in public at the time and place designated in the invitation for auction bids; and record the amount of each bid at the time it is received. The amount of a price bid shall be available for public inspection from the time it is received. The identity of the bidder submitting a price bid shall not be available for public inspection until bidding has ended. Except as provided in paragraph (5) of this subsection, a bid is irrevocable, after receipt, for the period specified in the invitation for auction bids. A procurement officer may allow a bidder to correct or withdraw a bid if correction or withdrawal is: allowed under regulations adopted under this Division II applicable to an invitation for bids; and approved in writing by the Office of the Attorney General. After obtaining any approval required by law, the procurement officer shall award the procurement contract to the responsible bidder who submits the responsive bid that: is the lowest bid price; or if the invitation for auction bids so provides, is the lowest evaluated bid price. If, after bids have been received, a procurement officer determines that only one responsible bidder has submitted a responsive bid, the unit may negotiate the procurement contract with that one bidder under the procedure for sole source procurement. After bids have been received, a procurement officer may award a procurement contract on the basis of revised bids if: all bids are rejected under § 13–206(b) of this title; all bid prices exceed the funds available for the procurement; or with the approval of the head of a primary procurement unit or a designee, the procurement officer determines that all bids are unreasonable as to at least one requirement and the delay that would result from issuing a new invitation for auction bids with revised specifications or quantities would be fiscally disadvantageous or otherwise not in the best interests of the State. If there is more than one bidder, discussions about revised specifications or quantities shall be conducted with all responsible bidders who submitted responsive bids. The bidders shall be treated fairly and equally with respect to any discussions. If one of the conditions set forth under subparagraph (i) of this paragraph exists, as promptly as possible, the procurement officer shall: issue an invitation for revised auction bids, which shall state whether the award will be made without competitive negotiations; and require a prompt response to that invitation. An invitation for revised auction bids is not subject to the notice requirements in subsection (d) of this section. After revised bids have been submitted, negotiations with bidders may not be conducted unless the procurement officer determines that there is a compelling reason to negotiate. After revised bids have been received and any approval required by law has been obtained, the procurement officer shall award the procurement contract to the responsible bidder who submits a responsive bid that: is the lowest bid price; or if the invitation for revised bids so provides, is the lowest evaluated bid price. Not more than 30 days after the execution and approval of a procurement contract awarded under this section, a unit shall publish notice of the award in eMaryland Marketplace.

In this section, “Department” means the Department of General Services or the Department of Transportation. Qualification based selection shall only be used by the Department if the procurement: is for architectural services, engineering services, or land surveying services; is made on a competitive basis; includes an evaluation of the technical proposals and qualifications of at least two persons; and the services cannot be provided feasibly and economically by existing in–house resources. Whenever a procurement is based on qualification based selection, a procurement officer shall seek proposals by issuing a request for architectural services, engineering services, or land surveying services. A request for architectural services, engineering services, or land surveying services shall include a statement: describing generally the architectural services, engineering services, or land surveying services that are the subject of the procurement; and indicating how an interested person may receive information about the procurement, including a comprehensive description of the nature and scope of the architectural services, engineering services, or land surveying services. The Department shall publish reasonable and timely notice of a request for architectural services, engineering services, or land surveying services in eMaryland Marketplace. The Department shall: evaluate the technical proposals and qualifications of the persons submitting the proposals; and determine an order of priority based on those evaluations. From the results of the selection process under this section, the Department shall: begin negotiations with the most qualified persons; and try to negotiate a procurement contract with that person at a rate of compensation that is fair, competitive, and reasonable. In determining the rate of compensation under this subsection, the Department shall: consider the scope and complexity of the architectural services, engineering services, or land surveying services required; and conduct a detailed analysis of the cost of those services. In determining the rate of compensation under this subsection, the Department of Transportation also shall comply with limits on costs reimbursement, including overhead limits established by the Department. In setting the limits under subparagraph (i) of this paragraph, the Department of Transportation shall consider the goal of the selection process as well as the reasonable cost of architectural services, engineering services, or land surveying services. If the Department is unable to negotiate a satisfactory procurement contract at a rate of compensation that is fair, competitive, and reasonable, it shall: terminate negotiations with the most qualified person; and negotiate in the same manner with the next most qualified person and, if necessary, continue negotiations in accordance with the procedures under this section until the Department reaches an agreement. After obtaining any approval required by law, the procurement officer shall award a procurement contract to the most qualified person with whom an agreement was reached on compensation that is fair, competitive, and reasonable. Not more than 30 days after the execution and approval of a procurement contract awarded under this section, the Department shall publish in eMaryland Marketplace notice of the award. All documents relating to the award of a procurement contract are to be made available to the public, including: technical resumes; technical proposals; the procurement contract; scope of services; programs/projects; staff reports; internal worksheets; and all other information relating to the negotiation and award of a procurement contract under this section. The Department shall waive the requirements in subsections (b), (e), (f), (g), and (j) of this section if: the Department determines that: the architectural services, engineering services, or land surveying services cannot be defined so completely as to carry out those requirements; or the specifications require architectural services, engineering services, or land surveying services that are available only from a bona fide single source or a proprietary product or process; the Governor declares an emergency; after a natural disaster, public health and safety are endangered; or on the recommendation of the Secretary of the Department and a finding by the Governor that extraordinary circumstances exist, the Board of Public Works determines that: for a particular project, urgent circumstances require the selection of a contractor on an expedited basis; expedited selection best serves the public interest; and the need for an expedited selection outweighs the benefits of carrying out those requirements. A waiver and the reasons for it shall be documented and: immediately reported to eMaryland Marketplace for publication; and reported to the Legislative Policy Committee within 30 days after the waiver occurs. The Department may not award a procurement contract to a person under this subtitle unless: the person submits: an affidavit of noncollusion; and a price quotation; and for a procurement contract costing more than $200,000, the person has executed a truth–in–negotiation certificate. The truth–in–negotiation certificate shall state that: wage rates and other factual unit costs supporting wages are accurate, complete, and current as of the time of contracting; and the original price of the procurement contract and any additions to the procurement contract will be adjusted to exclude any significant price increase if the Department determines that the price increase is due to wage rates or other factual unit costs that were inaccurate, incomplete, or not current as of the time of contracting. An adjustment to the procurement contract shall be made within 1 year after the procurement contract is completed. The Department may not award a procurement contract for architectural services, engineering services, or land surveying services that: is a cost–plus–a–percentage–of–cost contract; or includes fee schedules that are based on a percentage of construction costs. The State may postaudit the rates of contractors performing architectural services, engineering services, or land surveying services. All rates used in a cost–plus–fixed–fee procurement contract shall be verified by postaudit if: the compensation is more than $50,000 and the procurement contract involves a unit other than a transportation unit; and the compensation is more than $25,000 and the procurement contract involves a transportation unit. On request by a procuring authority of any political subdivision of the State that is considering an architect, an engineer, or a land surveyor for a specific project, any State audit of the architect, engineer, or land surveyor shall be made available. The Department may terminate without liability a procurement contract for architectural services, engineering services, or land surveying services if: there has been a conviction of a crime arising out of or in connection with the procurement contract or any payment to be made under the procurement contract; or there has been a breach or violation of any provision of this subtitle. Subject to subsection (a) of this section, the Department may deduct from the procurement contract price or otherwise recover the full amount of any fee, commission, gift, percentage, or other consideration paid in violation of this subtitle. If a procurement contract is terminated under this section, the contractor: is entitled only to the earned value of the work completed as of the date of termination, plus termination costs; is liable for any costs incurred for completion of the work over the maximum amount payable to the contractor under the procurement contract; and shall refund all profits or fixed fees realized under the procurement contract. The provisions of this section are in addition to any other right or remedy allowed by law. By carrying out this section, the Department does not waive any other right or remedy provided by law. 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 10 years or both. The Department of General Services and the Department of Transportation shall adopt regulations that provide substantially similar procedures to carry out this section. The procedures of the Department shall ensure that a recommendation to the Board of Public Works for the award of a procurement contract for architectural services, engineering services, or land surveying services costing over $200,000 is made on a competitive basis and includes an evaluation of the technical proposals and qualifications of at least two persons.

The designated procurement units may adopt master contracting, a streamlined procurement method, to provide for the qualification of an offeror in one or more categories of services, supplies, or commodities. If a designated procurement unit adopts master contracting, the master contracting method shall include: the categories of services, supplies, or commodities in which an offeror may submit a proposal for qualification; a procedure for the consideration and approval of proposals for qualification of multiple offerors in each category of services, supplies, or commodities; the execution of a standard contract for a specified period of time between the State and an offeror approved as a master contractor; and a performance evaluation procedure to be used by a unit of the Executive Branch to evaluate the performance of a qualified offeror that has completed work on a task order. A unit of the Executive Branch that requires services, supplies, or commodities covered under a master contract may issue a solicitation for a task order to a master contractor consistent with the regulations adopted under § 13–114 of this subtitle. Except as provided in subsection (f) of this section, the solicitation for a task order shall include a statement of the: factors that will be used in evaluating a master contractor’s response; and relative importance of each factor. This subsection does not apply to a task order designated as a small business reserve in accordance with § 14–502 of this article. Except as provided in subsection (f) of this section, if the unit of the Executive Branch expects that the total cost of the services, supplies, or commodities will exceed $500,000, the unit shall issue a solicitation for a task order to all master contractors in the appropriate category established by the designated procurement unit. If the unit of the Executive Branch expects that the total cost of the services, supplies, or commodities will exceed $100,000 but will not exceed $500,000, the unit shall issue a solicitation for a task order to a minimum of six qualified master contractors on a rotating basis for master contracts designated by the Chief Procurement Officer or all master contractors, whichever is less, in the appropriate category established by the designated procurement unit. If the unit of the Executive Branch expects that the total cost of the services, supplies, or commodities will be $100,000 or less, the unit shall issue a solicitation for a task order to a minimum of three qualified master contractors on a rotating basis for master contracts designated by the Chief Procurement Officer or all master contractors, whichever is fewer, in the appropriate category established by the designated procurement unit. Except as provided in subsection (f) of this section, after a unit of the Executive Branch receives responses from master contractors to a solicitation for a task order, the unit shall evaluate the responses and may select a master contractor based on the response that is determined to be the most advantageous to the State considering the evaluation factors set forth in the task order. Except as provided in paragraph (3) of this subsection, oral presentations are required prior to selecting a master contractor when: the total value of the task order is expected to exceed $2,000,000 for architectural and engineering services; the total value of the task order is expected to exceed $10,000,000 for construction and construction related services; or for all other procurement, including information technology and professional services, when the total value of the task order is expected to exceed $5,000,000. If the procurement officer makes a written determination that oral presentations are unlikely to aid in the evaluation process, oral presentations will not be required. The requirements of subsections (c)(2), (d), and (e)(1) of this section do not apply to a master contract for construction if the master contract: is awarded through a competitive process in accordance with this subtitle; and states: how task orders will be awarded; and the maximum number of qualified contractors that will be awarded a master contract for construction.

The Board shall adopt regulations in accordance with Title 10, Subtitle 1 of the State Government Article to establish a uniform process for the solicitation of master contracts and task orders. Each designated procurement unit shall ensure compliance with the regulations set forth in subsection (a) of this section.

The Department of Information Technology shall require basic security, data collection, and privacy requirements to be included in a contract under which a third–party contractor will: have access to and use State information technology equipment, systems, or services; collect, store, or process personal information as defined in § 10–1301 of the State Government Article; or connect to State information technology equipment, systems, or services. The security requirements developed under subsection (a) of this section shall be consistent with a widely recognized security standard, including National Institute of Standards and Technology SP 800–171, ISO27001, or Cybersecurity Maturity Model Certification. The privacy requirements developed under subsection (a) of this section shall be consistent with widely recognized privacy standards, including National Institute of Standards and Technology (NIST) SP privacy framework v1, NIST 800 SP 800–53 v5, and NIST 800–207 SP zero trust architecture, as they may be updated from time to time.

In this section, “proof of concept” means a test, evaluation, demonstration, or pilot project of a good, service, or technology in a real–world environment to evaluate whether the good, service, or technology can be successfully deployed and is beneficial to the State. A competitive proof of concept procurement is a formal competitive procurement method that may be used to solicit proposals for the conduct of a proof of concept and participation in subsequent phases of the procurement, including full implementation or deployment when the head of a unit determines the process to be appropriate and in the best interests of the unit, including: testing software–as–a–service or off–the–shelf software; testing new, innovative products or services; or testing a product or service conceptualized or conceived of by a unit of State government. After obtaining the approval of the head of the unit and before conducting a competitive proof of concept procurement, the unit shall obtain approval from the Chief Procurement Officer, or the Chief Procurement Officer’s designee. The request for approval under this subparagraph shall demonstrate that conducting a competitive proof of concept procurement is in the best interest of the State. If the procurement is for information technology, before conducting a competitive proof of concept procurement, the unit shall obtain approval from the Secretary of Information Technology, or the Secretary’s designee. The Secretary of Information Technology may grant approval for a competitive proof of concept procurement for information technology if the unit: has sufficient internal resources to manage the proof of concept, including human capital, subject matter expertise, and technological infrastructure, or has the means to obtain these resources; and enters into a memorandum of understanding with the Department of Information Technology that requires regular status updates, vendor capacity, and any other information necessary for the Department of Information Technology to evaluate whether the proof of concept can be successfully deployed and is beneficial to the State. A competitive proof of concept procurement solicitation shall include a statement of: the scope of work, statement of need, or project description, including the intended use, quantity, estimated time frame for the proof of concept, and anticipated number of proof of concept awards that will be made; and the factors, including price, that will be used at each phase in evaluating proposals and the relative importance of each. A solicitation may be distributed to vendors known to offer goods or services within the scope of the proof of concept and shall be posted on eMaryland Marketplace Advantage. After receipt of proposals but before award of a procurement contract, a unit may: conduct discussions with and receive clarifications from an offeror; request product samples for testing by the unit or a demonstration of a product or service and use these samples or demonstrations in its evaluation process; and allow offerors reasonably susceptible of being selected for award to participate in all subsequent phases of the procurement including submission of best and final offers. A unit may issue a contract to each offeror reasonably susceptible of being selected for award to deliver product samples for testing or provide a demonstration made under subsection (d)(2) of this section. A contract awarded under this subsection does not preclude a vendor from continuing to participate in subsequent phases of the procurement. A unit may award one or more contracts for full implementation or deployment of the good, service, or technology evaluated during the proof of concept if it is in the best interest of the State. A unit shall publish notice of a contract awarded under this section in excess of the small procurement amount specified in § 13–109 of this subtitle in eMaryland Marketplace Advantage. The Department of General Services, in consultation with the Department of Information Technology, shall adopt regulations, policies, and procedures for the development and implementation of competitive proof of concept procurements.

It is the intent of the General Assembly to: recognize the need for State agencies to be responsive to the requests and legislative directives of the General Assembly; reduce the time it takes for State agencies to procure consultants to assist with legislative mandates that have deadlines specified in law; and be timely in addressing climate change, environmental, energy, and greenhouse gas emissions related issues. This section applies only to the procurement of consultants that: are legislatively mandated with specific time frames established in law; and will address issues related only to climate change, the environment, energy, and greenhouse gas emissions. The following units are authorized to issue a procurement contract using a competitive sealed bid method, competitive sealed proposal method, or expedited procurement procedures for amounts higher than their designated small procurement delegation authorities: the Public Service Commission; the Office of People’s Counsel; the Maryland Energy Administration; the Department of the Environment; and the Department of Natural Resources. Before awarding a procurement contract under this section, the procurement officer shall obtain the approval of: the head of the unit; and the Chief Procurement Officer, or their designee. The Chief Procurement Officer, or their designee, shall approve a procurement contract submitted under this section if it complies with the requirements of this section. If the Chief Procurement Officer, or their designee, does not respond to a request to approve a procurement contract submitted under this section within 5 business days after receiving the contract, the contract shall be considered approved.