The procedures established in this chapter are applicable to the procurement of supplies, services, and construction including leasing personal property as a lessee. The Authority is not subject to the State Finance and Procurement Article, Annotated Code of Maryland. The members of the Authority, its Executive Director, and staff members are required to comply with the conflict of interest provisions found in the General Provisions Article, Title 5, Subtitle 5, Annotated Code of Maryland. This chapter does not apply to the following: Contracts with or procurement from: A State agency or unit, A political subdivision of the State, An agency of a political subdivision of the State, A government, including the government of another state or the United States, An agency or political subdivision of the State, or A bistate, multistate, bicounty, or multicounty governmental agency; Acquisition of real property or a permanent or temporary interest in real estate; Disposal of real or personal property; or Contracts or purchases that were originally procured by a federal, state or local government agency or entity, pursuant to the procurement laws and regulations of the procuring entity. In this chapter, the following terms have the meanings indicated. Terms Defined. "Authority" means the Northeast Maryland Waste Disposal Authority. “Board” means the Board of Directors of the Authority. “Executive Director” means the Executive Director of the Northeast Maryland Waste Disposal Authority. “Person” has the meaning stated in Natural Resources Article, §3-101(j), Annotated Code of Maryland. Proposal. “Proposal” means the response by an offeror to a request for proposals to obtain supplies, services, or construction. “Proposal” may include, without limitation, an offeror's price, description of technical expertise, work experience, and other information requested in the solicitation. “Responsible” means a person who has the capability in all respects to dutifully perform fully the contract requirements, and the integrity and reliability that ensures good faith performance. “Responsive” means a bid or offer submitted in response to a solicitation that conforms in all material respects to the requirements contained in the solicitation. “Services” means the rendering of time, effort, or work, rather than the furnishing of a specific physical product other than reports incidental to the required performance. “Supplies” means all tangible personal property, including equipment, leases of equipment, and insurance, including any incidental services. The power to contract on behalf of the Authority for the procurement of materials, supplies, or services and construction shall be vested in the Executive Director. The Executive Director may, with the approval of the Authority, delegate this power to other staff members. The Executive Director may exercise any responsibility of the Authority set forth in these regulations. However, contracts and orders involving the expenditure of more than $10,000 shall be awarded only by resolution of the Authority upon recommendation of the Executive Director. Advertising, when used, shall be placed in one or more newspapers of general circulation serving the area where the procurement is required, or e-Maryland Marketplace. Wider range advertising, including advertising in professional and trade publications, may be employed at the discretion of the Executive Director. The advertisement shall describe the materials, supplies, equipment, or services required, pertinent information as to submission of bids, proposals or qualification statements, and shall identify a staff member of the Authority who can respond to inquiries concerning the procurement. All purchases shall be awarded by one of the following methods: Competitive sealed bidding; Competitive negotiation; Small procurement procedures, when permitted by Regulation .14 of this chapter; Revised bids after competitive sealed bidding where all bids are rejected; Sole source procurement, when permitted by Regulation .11 of this chapter; Emergency procurement, when permitted by Regulation .12 of this chapter; or Intergovernmental cooperative purchasing as that term is defined in State Finance and Procurement Article, §13-110, Annotated Code of Maryland, and COMAR 21.05.09. The Authority shall select the method of procurement which in its discretion best meets the needs of the Authority. The Authority may require prequalification of bidders regardless of the method of procurement selected. Method of Prequalification. The Authority shall issue a request for qualifications. The Authority may invite some or all persons and entities seeking to become qualified to participate in oral interviews. The interviews will become part of the responses to a request for qualifications. The Authority may require some or all persons and entities seeking to become qualified to submit additional data and information, which will become part of the responses. The Authority shall evaluate the responses and shall rank each response in accordance with evaluation criteria. By applying the evaluation criteria, the Authority shall establish a short-list composed of a minimum of two and, in general, a maximum of five persons or entities. The Authority shall notify those who qualified for the short-list that they have qualified and that they can anticipate a request for proposals, an invitation to bid, or, depending on the method of procurement selected by the Authority, an invitation to participate in negotiations. The Authority shall notify those who did not qualify. The requirement for competition may be satisfied by the prequalification process. Bids shall be submitted in a sealed envelope marked with the bidder's name. All bids will be publicly opened at the time and place stated in the request. Award shall be made with reasonable promptness after the date of bid opening to that person or entity with the lowest bid which is both responsible and responsive. All bids may be rejected if the Authority determines that it is in the public interest to do so. A special form or procedure is not prescribed for procurement by competitive negotiation. The request shall be in writing and shall describe the procurement in sufficient detail to provide an understanding of what is required, but should not be unnecessarily restrictive so as to preclude or limit competition. The request shall state applicable dates for the submission of proposals, and any other information which may be necessary and useful, including evaluation criteria. Precautions shall be taken to avoid prejudice in the selection of a source of supply, and to assure that a fair and reasonable price is obtained. This section does not preclude the Authority from making an award when only one proposal is received by the Authority after advertising. The Authority may conduct oral negotiations before or after the receipt of proposals. The purpose of the negotiation is to promote understanding of the Authority's requirements and the offerors' proposals and to facilitate arrival at a contract that is most advantageous to the Authority. The Authority may require offerors to submit best and final offers after negotiations. The Authority shall make an award to the offeror whose proposal or, if applicable, best and final offer, after giving effect to the understanding gained during negotiations, is determined to be most advantageous to the Authority. The Authority may abandon a procurement by competitive negotiation if it is determined to be in the public interest to do so. Condition for Use. Sole source procurement is not permissible unless a requirement is available from only a single vendor. The determination as to whether a procurement shall be made as a sole source shall be made by the Executive Director, and approved by the Board. The determination and the basis for it shall be in writing. The Authority may not award a contract to a sole source before the Board's approval, except as allowed in Regulation .14 of this chapter. Application. The Authority may award an emergency contract by means other than competitive sealed bidding or competitive negotiation under Regulation .09 or .10 of this chapter. Scope. “Emergency” means a sudden and unexpected occurrence or condition which the Authority could not reasonably foresee and which requires an action to avoid or to mitigate damage to the environment or to health, safety, or welfare. An emergency procurement is limited to the procurement of only those items necessary to avoid or to mitigate the damage to the environment or to health, safety, or welfare. Competition. The Authority shall reasonably attempt to obtain such competition as is consistent with meeting the time requirements of the emergency. The Authority need not follow the procurement process as set forth in these regulations when the procurement is for supplemental work, substantially related to work previously awarded by the Authority by competitive sealed bidding or competitive negotiation, and where further competitive procurement would not enhance the public interest. Materials, supplies, equipment, and services may be procured by open market purchase or sole source award when the amount involved is anticipated to be less than $2,500 in the aggregate on an annual basis for a particular procurement. Procurement by open market purchase or sole source award in amounts over $2,500, but less than $10,000, is permitted when the materials, supplies, equipment, and services are of a unique and special nature, or when public exigency will not permit the delay incident to competition. In this event, a memorandum justifying the action and signed by the Executive Director shall be filed with the official records of the Authority. If the Board determines that a procurement violates this chapter, the Board may determine that the procurement contract is voidable rather than void if the Board finds that: All parties have acted in good faith; Ratification of the procurement contract would not undermine the purposes of this chapter; and The violation, or series of violations, was insignificant or otherwise did not prevent substantial compliance with this chapter. If the Board determines that a procurement contract is voidable under §A of this regulation and that the contractor has not acted in violation of this chapter, the Board may: Ratify the contract if it determines that ratification is in the best interest of the Authority; or Void the contract. If the Board determines that a procurement contract is voidable under §A of this regulation and that the contractor has acted in violation of this chapter, the Authority: May void the contract; or Without the prejudice to the Authority's right to appropriate damages, may ratify the contract if the Board determines that ratification is in the best interests of the Authority. Time Restrictions. A protest based upon alleged improprieties in a solicitation that are apparent before bid opening or the closing date for receipt of initial proposals shall be submitted to the Director of Finance and Administration before bid opening or the closing date for receipt of initial proposals. For procurement by competitive sealed proposals, alleged improprieties that did not exist in the initial solicitation but which are subsequently incorporated in the solicitation shall be submitted to the Director of Finance and Administration not later than the next closing date for receipt of proposals following the incorporation. In all other cases, protests shall be submitted to the Director of Finance and Administration not later than 7 days after the basis for protest is known, or should have been known, whichever is earlier. A protest received by the Director of Finance and Administration after the time limits of §A(1)—(3) of this regulation may not be considered and shall be denied as untimely. Form and Content of Bid Proposals. To expedite the handling of protests, the envelope should be labeled “Protest”. The written proposal shall include as a minimum the following content: The name and address of the protestor; Appropriate identification of the procurement and, if a contract has been awarded, its number if known; A statement of the reasons for the protest; Supporting exhibits, evidence, or documents to substantiate the reasons for the protest; and If not available within the time restrictions: A description of the nature and extent of the evidence and documents; and The expected availability date of the evidence and documents. Any additional information or substantiation requested by the Director of Finance and Administration shall be submitted within 5 days after receipt of request, or other time as the Director of Finance and Administration may specify in order to expedite consideration of the protest. Failure of the protestant to comply with a request for information or substantiation by the Director of Finance and Administration may result in a resolution of the protest without consideration of any response to the request that is not timely filed. Authority Determination and Finding. After a protest is filed, the Director of Finance and Administration shall consider the protest, all supporting documentation, and any submissions from other bidders or offerors. This consideration is not a contested hearing, subject to State Government Article, Title 10, Subtitle 2, Annotated Code of Maryland. After consideration, the Director of Finance and Administration shall make a determination and finding regarding the protest. For contracts valued at less than $10,000, the Director of Finance and Administration may make the determination and finding without consultation with the Executive Director. For contracts valued at $10,000 or more, the Director of Finance and Administration shall provide a proposed determination and finding to the Executive Director. The Executive Director shall consider the protest and shall issue the determination and finding. The determination and finding shall be forwarded by certified mail to the protestor. Appeal. The protestor may appeal the determination and finding to the Board of Directors within 10 days after receipt. The appeal shall be in writing, and include a copy of the protest and the determination and finding. In addition, the appeal shall contain all grounds for disagreement with the determination and finding. Appeals not received within 10 days after receipt by the protestor shall be dismissed as untimely. If the protestor desires a hearing on its protest, a request for a hearing shall be made, in writing, at the time of the appeal. If a timely request for a hearing is received, the Board of Directors shall conduct a hearing in accordance with State Government Article, Title 10, Subtitle 2, Annotated Code of Maryland. In accordance with State Government Article, §10-205, Annotated Code of Maryland, the Board of Directors may delegate its authority to conduct this hearing to the Office of Administrative Hearings. The Board of Directors shall issue a final decision on the protest, which is the final Authority decision. This final decision of the Authority is subject to judicial review in accordance with the rules established by State Government Article, §10-222, Annotated Code of Maryland. Contract Awards. Generally, if a protest has been filed, the Authority may not award the contract until there is a final Authority decision on the protest. The Authority may award a contract before there is a final Authority decision after making a determination and finding which considers: The merits of the protestor's complaint; The need of the Authority for the procurement, which is the subject of the protest; The fluctuations in the market, which may impact costs; The unwillingness of the proposed awardee to extend its offer; or Other factors which impact on the public interest. Natural Resources Article, §§3-905(b) and 3-921, Annotated Code of Maryland Effective date: December 26, 1980 (7:26 Md. R. 2424) Chapter revised effective September 27, 1982 (9:19 Md. R. 1896) Chapter revised effective March 19, 2001 (28:5 Md. R. 552) Regulation .02 amended effective December 21, 2015 (42:25 Md. R. 1546) Regulation .03A amended effective December 21, 2015 (42:25 Md. R. 1546) Regulation .06 amended effective December 21, 2015 (42:25 Md. R. 1546) Regulation .16 adopted effective December 11, 2003 (30:24 Md. R. 1744)