# COMAR Title 14 — Independent Agencies

## Subtitle 27 — Maryland Environmental Service

### Chapter 01 — Designation of Service Regions

*Repealed*

**Administrative History:** Effective date: May 15, 1981 (8:10 Md. R. 876)

**Administrative History:** Chapter recodified from 08.17.01 effective July, 1993

**Administrative History:** Chapter repealed effective November 14, 2011 (38:23 Md. R. 1422)

### Chapter 02 — Human Resources System

**Authority:** Natural Resources Article, §§3-103.1 and 3-127, Annotated Code of Maryland

**Administrative History:** Effective date: January 1, 1995 (21:25 Md. R. 2107)

**Administrative History:** Regulation .11B amended as an emergency provision effective December 31, 1998 (26:2 Md. R. 103); emergency status expired April 30, 1999; amended permanently effective May 3, 1999 (26:9 Md. R. 730)

**Administrative History:** Regulation .12 amended as an emergency provision effective December 31, 1999 (27:3 Md. R. 325); emergency status expired April 30, 2000

**Administrative History:** Regulation .12 amended effective May 13, 2002 (29:9 Md. R. 746)

**Administrative History:** Regulation .12B amended effective February 26, 1996 (23:4 Md. R. 274)

**Administrative History:** Regulation .15C amended as an emergency provision effective December 31, 1998 (26:2 Md. R. 103); emergency status expired April 30, 1999; amended permanently effective May 3, 1999 (26:9 Md. R. 730)

**Administrative History:** Chapter revised effective May 26, 2003 (30:10 Md. R. 668)

**Administrative History:** Regulation .01B amended as an emergency provision effective July 1, 2021 (48:15 Md. R. 592); amended permanently effective September 6, 2021 (48:18 Md. R. 693)

**Administrative History:** Regulation .02B amended as an emergency provision effective July 1, 2021 (48:15 Md. R. 592); amended permanently effective September 6, 2021 (48:18 Md. R. 693)

**Administrative History:** Regulation .03B amended effective October 8, 2018 (45:20 Md. R. 919)

**Administrative History:** Regulation .11 amended effective October 9, 2006 (33:20 Md. R. 1617)

**Administrative History:** Regulation .11B amended effective October 8, 2018 (45:20 Md. R. 919)

**Administrative History:** Regulation .11D adopted effective October 27, 2003 (30:21 Md. R. 1530)

**Administrative History:** Regulation .12D amended effective November 14, 2011 (38:23 Md. R. 1422)

**Administrative History:** Regulation .12F amended effective October 8, 2018 (45:20 Md. R. 919)

**Administrative History:** Regulation .12J adopted effective November 14, 2011 (38:23 Md. R. 1422)

**Administrative History:** Regulation .13 amended effective February 23, 2009 (36:4 Md. R. 354)

**Administrative History:** Regulation .14 amended effective October 8, 2018 (45:20 Md. R. 919)

**Administrative History:** Regulation .15A amended effective February 23, 2009 (36:4 Md. R. 354)

**Administrative History:** Regulation .15A, C amended as an emergency provision effective January 1, 2004 (30:22 Md. R. 1575); amended permanently effective February 2, 2004 (31:2 Md. R. 85)

**Administrative History:** Regulation .15B repealed effective August 17, 2015 (42:16 Md. R. 1055)

**Administrative History:** Regulation .16 amended effective November 14, 2011 (38:23 Md. R. 1422)

**Administrative History:** Regulation .25 repealed and new Regulation .25 adopted effective January 31, 2005 (32:2 Md. R. 147)

**Administrative History:** Regulation .25B amended as an emergency provision effective July 1, 2021 (48:15 Md. R. 592); amended permanently effective September 6, 2021 (48:18 Md. R. 693)

#### Regulation .01 Scope.

*COMAR 14.27.02.01*

A. These regulations apply to an individual who:

  (1) Is hired by the Service after June 30, 1993;

  (2) Was employed by the Service before July 1, 1993, but who is not a member of the State Personnel Management System; and

  (3) Transfers from the State Personnel Management System to the human resources system established by Natural Resources Article, §3-103.1, Annotated Code of Maryland.

B. These regulations shall apply to the Executive Director, but not to any other member of the Board of Directors.

C. Regulations .05, .06, .10—.13, .15A—F, .16, .17, .21, .25, and .27 of this chapter do not apply to temporary employees of the Service.

#### Regulation .02 Definitions.

*COMAR 14.27.02.02*

A. In this chapter, the following terms have the meanings indicated.

B. Terms Defined.

  (1) “Applicant” means an individual who submits a request to be considered for employment by the Service after the Service announces that it is seeking applicants.

  (2) “Board” means the Board of Directors of the Service.

  (3) “Classification” means the descriptive title assigned to a single position or group of positions that are similar in duties, responsibilities, and minimum qualifications, and have the same pay grade.

  (4) “Demotion” means a change from one position to another position which has a lower maximum pay grade or reduced duties and responsibilities.

  (5) “Director” means the Executive Director of the Maryland Environmental Service.

  (6) Employee.

    (a) “Employee” means an individual who is hired or who transfers to a position under the regulations, policies, and procedures of the Service's human resources system.

    (b) “Employee” includes a contractual employee, a senior management employee, and a temporary employee.

    (c) “Employee” does not include an inmate or patient in a State institution who is employed by the Service.

  (7) “Human resources system” means the Service's personnel system established by this chapter.

  (8) “Leave” means official absence from Service duties and responsibilities.

  (9) “Overtime” means work in excess of 40 hours per week.

  (10) “Performance appraisal” means an evaluation of an employee's work performance based on predefined duties and responsibilities as described in job descriptions and performance planning documents.

  (11) “Physical and mental qualification standards” means job-related physical and mental criteria necessary to perform the essential functions of a specific position.

  (12) “Position” means a set of duties and responsibilities which are or could be performed by a single individual. A position may be either filled or vacant, full-time or part-time.

  (13) “Probation” means a trial work period.

  (14) “Promotion” means a change from one position to another position which has a higher maximum pay grade and increased duties and responsibilities.

  (15) “Service” means the Maryland Environmental Service.

  (16) “Supervisor” means an employee who is authorized to direct or manage another employee's duties, responsibilities, and access to benefits.

  (17) Temporary Employee.

    (a) “Temporary employee” means an individual hired by the Service for a period not to exceed 6 months.

    (b) “Temporary employee” includes a student employee.

#### Regulation .03 Equal Employment Opportunity.

*COMAR 14.27.02.03*

A. The Service shall have a comprehensive equal employment opportunity/affirmative action program covering all elements of the Service's human resource policies and management practices.

B. The Service shall implement this chapter in a manner that does not discriminate on the basis of:

  (1) Race;

  (2) Color;

  (3) Age;

  (4) Creed;

  (5) Sex;

  (6) National origin;

  (7) Religious affiliation, belief, or opinion;

  (8) Marital status;

  (9) Physical or mental disability;

  (10) Sexual orientation;

  (11) Ancestry;

  (12) Gender identity; or

  (13) Other factors not related to work performance or job qualifications.

#### Regulation .04 Organization of Human Resources System.

*COMAR 14.27.02.04*

A. The Service shall have a human resources system. The Human Resources Division of the Service shall administer and manage the human resources system. The Human Resources Division shall maintain records that:

  (1) Document any action affecting the status of an employee; and

  (2) Are required to be maintained by law.

B. The Board may adopt policies and procedures for administering the human resources system and shall maintain records of the policies and procedures.

#### Regulation .05 Qualifications and Examinations.

*COMAR 14.27.02.05*

A. The Service shall establish minimum qualifications and selection criteria for an employment position.

B. Examinations. The Service may require an applicant for employment to participate in an examination of the applicant's job-related qualifications.

C. Returning Veterans and Reservists. The Service shall employ returning veterans and reservists in accordance with the provisions of State Personnel and Pensions Article, Title 2, Subtitle 7, Annotated Code of Maryland.

#### Regulation .06 Hiring Employees.

*COMAR 14.27.02.06*

A. Selection Criteria.

  (1) The Service shall select for employment the applicant who best meets the selection criteria established by the Service.

  (2) The Service may hire an individual who does not meet the Service's minimum qualifications or the selection criteria if the:

    (a) Service determines that the individual is more qualified for the employment position than another applicant; or

    (b) Individual is currently employed at a project or facility for which the Service assumes operation or management.

B. Physical and Mental Examinations.

  (1) An applicant who is selected for employment shall undergo a physical and mental examination. The Service may not require an applicant to undergo a physical and mental examination before being offered employment by the Service. Any offer of employment is contingent upon the applicant meeting the physical and mental qualification standards for the position for which the Service makes the offer of employment.

  (2) Physical and mental qualification standards shall be job-related and consistent with business necessity. The Service shall provide reasonable accommodations to an applicant who does not meet the physical or mental qualification standards, unless the accommodation would impose an undue hardship upon the Service.

  (3) The Service may revoke an offer of employment to an applicant who:

    (a) Does not meet either the physical or mental qualification standards for the employment position; and

    (b) Cannot be reasonably accommodated by the Service without undue hardship upon the Service.

#### Regulation .07 Probation.

*COMAR 14.27.02.07*

A. An employee of the Service shall serve a probationary period of 6 months from the date the employee is hired.

B. An employee's probation may be extended for an additional period not to exceed 3 months. The maximum period of probation including extension may not exceed 9 months.

C. Termination of Probationary Employees.

  (1) The Service may terminate a new employee on probation without cause.

  (2) Except as provided in §C(3) of this regulation, the Service shall notify the employee at least 2 weeks before the effective date of the termination.

  (3) The Service may terminate a new employee on probation without 2 weeks notice if the:

    (a) Service determines that the employee misrepresented any information on the employee's employment application; or

    (b) Termination is due to a breach of discipline or gross incompetence.

#### Regulation .08 Compensation of Employees.

*COMAR 14.27.02.08*

A. Salaries and Wages.

  (1) The Service shall compensate an employee according to:

    (a) The Service's budget; and

    (b) A salary structure that is developed by the Director and approved by the Board.

  (2) The salary structure in §A(1)(b) of this regulation shall list the complete salary range of classes of positions and may include a pay plan and salary rules.

B. Incentive Pay. The Director, with the approval of the Board, may establish an incentive pay plan. The Board shall approve all disbursement of incentive pay and shall determine the eligibility of Service employees to participate in an incentive pay plan.

C. Salary Structure. The Service shall conduct salary reviews periodically and may recommend that the Board adjust the Service salary structure based on these reviews.

D. Merit Increase Adjustment. Merit increases for individual employees shall be made on the basis of the annual performance appraisal and under guidelines approved by the Board.

#### Regulation .09 Overtime.

*COMAR 14.27.02.09*

A. The Director, or the Director's designee, may require an employee to work a period of time in excess of the employee's standard workweek or workday, dependent upon workload demands.

B. The Service shall pay preapproved overtime to employees who are nonexempt under the Fair Labor Standards Act in accordance with the Fair Labor Standards Act, 29 U.S.C. §201 and the provisions of State Personnel and Pensions Article, Title 8, Subtitle 3, Annotated Code of Maryland.

#### Regulation .10 Benefits.

*COMAR 14.27.02.10*

The Board shall establish a benefits plan, which includes reasonable eligibility criteria, for employees. The benefits plan shall be consistent with State Personnel and Pensions Article, §2-511, Annotated Code of Maryland, which allows employees to participate in the State Employee and Retiree Health and Welfare Benefits Program.

#### Regulation .11 Annual Leave.

*COMAR 14.27.02.11*

A. Amount of Leave Earned.

  (1) From the 1st through the 6th month of employment, an employee may not earn annual leave. Upon completion of the 6th month of service, the Service shall credit an employee with annual leave for the first 6 months on the basis of 1 hour of leave for each 26 hours worked.

  (2) From the beginning of the 1st year of employment through the completion of the 5th year of employment, an employee shall earn annual leave at the rate of 1 hour of leave for each 26 hours worked. An employee who has been employed less than 5 years by the Service may not earn more than 80 hours of annual leave in a calendar year.

  (3) From the beginning of the 6th year of service through the completion of the 10th year of employment, an employee shall earn annual leave at the rate of 11/2 hours of leave for each 26 hours worked. An employee who has been employed less than 10 years by the Service may not earn more than 120 hours of annual leave in a calendar year.

  (4) From the beginning of the 11th year of service through the completion of the 20th year of service, an employee shall earn annual leave at the rate of 2 hours of leave for each 26 hours worked. An employee who has been employed less than 20 years by the Service may not earn more than 160 hours of annual leave in a calendar year.

  (5) From the beginning of the 21st year of service and after that, an employee shall earn annual leave at a rate of 21/2 hours of leave for each 26 hours worked. An employee who has been employed more than 21 years by the Service may not earn more than 200 hours of annual leave a year.

  (6) Under this regulation, the amount of hours an employee has worked includes any hours the employee is on paid leave. An employee may not earn annual leave for hours worked in excess of the employee's standard workweek.

  (7) Under this regulation, an employee's years of employment include all time the employee has been employed by the Service, regardless of any break in employment with the Service.

B. Accumulated Annual Leave.

  (1) An employee may accumulate unused annual leave and may carry over from one calendar year to the next year up to 75 days or 600 hours of that unused annual leave. Any accumulated and unused annual leave in excess of 75 days or 600 hours, whichever is greater, shall be forfeited at the beginning of the first full pay period of the next calendar year.

  (2) For a part-time employee, annual leave may be accumulated to a maximum determined on the basis of the percentage of 600 hours of annual leave equal to the percentage of employment, and carried into a new calendar year.

C. Use of Annual Leave. If an employee has sufficient annual leave, then the employee shall make a reasonable effort to use a minimum of 80 hours of annual leave in a calendar year. An employee shall obtain the approval of the employee's supervisor before using annual leave.

D. The Board may establish the amount of annual leave for which designated classes of employees may be eligible to receive. The amount of annual leave may not be less than the amount of annual leave authorized by §A of this regulation. The Board shall determine the circumstances under which the designated classes of employees may utilize annual leave.

#### Regulation .12 Sick Leave.

*COMAR 14.27.02.12*

A. Amount of Leave Earned.

  (1) Starting with the first month of service an employee shall earn 1 hour of sick leave for every 37.14 hours worked. An employee may not earn more than 7 days of sick leave in a calendar year.

  (2) An employee may not earn sick leave upon hours worked in excess of the employee's standard workweek.

  (3) Under this regulation the amount of hours an employee has worked shall include any hours the employee is on paid leave.

B. The Director, with the approval of the Board, may establish an incentive program for employees. The incentive program may include provisions for the Service to reimburse an employee for unused sick leave if the employee's accumulated sick leave is reduced by an amount equal to the reimbursement.

C. Advanced Sick Leave.

  (1) The Service may advance up to 15 days of sick leave to an employee in any calendar year for a serious disability, ailment, or illness if no other leave with pay is credited to the employee.

  (2) The use of advanced sick leave by an employee constitutes a debt for which payment is enforceable upon the employee's return to work, and continues to be enforceable on the employee's termination of employment with the Service.

  (3) An employee shall repay to the Service advanced sick leave:

    (a) In cash;

    (b) By applying credited annual leave, personal leave, or sick leave of the employee to the amount of advanced leave owed; or

    (c) By reducing the amount of sick leave earned and credited to the employee.

D. Use of Sick Leave. An employee may use sick leave for the following purposes only:

  (1) Disability or illness of the employee;

  (2) A documented medical appointment for the employee;

  (3) Illness of a member of the employee's immediate family;

  (4) A medical appointment for a member of the employee's immediate family;

  (5) Bereavement leave as described in §I of this regulation; or

  (6) Birth or adoption of employee’s child as describe in §J of this regulation.

E. Sick leave may be accumulated without limitation. Unless otherwise provided by law, sick leave shall be forfeited upon termination of an employee's employment.

F. Attendance Control — Occurrences.

  (1) If an employee uses sick leave on 3 or more consecutive days, the employee shall submit to the Service an original health care provider's certificate which authenticates the period of illness and includes a prognosis regarding the employee's ability to return to work. The employee shall ensure that the certificate is signed personally by a licensed or certified medical provider or practitioner.

  (2) In order to prevent abuse of sick leave and to ensure medical attention for an employee, the Service may require an employee to submit a certificate which authenticates a period of illness of 1 day or more and which is signed in accordance with §F(1) of this regulation.

  (3) When an illness of 1 day or more occurs during a period of annual leave or personal leave, the Service shall grant sick leave for the period of illness if the employee submits a certificate to the Service which authenticates the period of illness and which is signed in accordance with §E(1) of this regulation.

G. Attendance Control — Medical Examinations.

  (1) If an employee is absent from employment due to medical reasons, the Director, or the Director's designee, may require the employee to be medically examined to determine if the employee has:

    (a) An illness which requires the employee to utilize an excessive amount of sick leave; or

    (b) A disability which prevents the employee from the proper performance of the employee's duties.

  (2) A medical practitioner licensed by the State shall conduct the examination at the Service's expense.

H. The Service shall provide unpaid leave in accordance with the Family and Medical Leave Act of 1993 and Regulation .16 of this chapter.

I. Bereavement Leave.

  (1) Death of Immediate Family Member.

    (a) An employee may use up to 3 working days of sick leave in the event of the death of one of the following members of the employee's family:

      (i) Spouse;

      (ii) Child or stepchild of the employee;

      (iii) Parent of the employee or the employee's spouse or an individual who took the place of a parent;

      (iv) Sibling of the employee or the employee's spouse;

      (v) Other relative living as a member of the employee's household.

    (b) If travel requiring staying away from home overnight is involved, the employee may use up to 5 working days of sick leave.

  (2) Death of Other Family Members.

    (a) An employee may use 1 working day of sick leave in the event of the death of one of the following relatives of the employee:

      (i) Grandparent or grandchild of the employee or the employee's spouse;

      (ii) Aunt or uncle of the employee or the employee's spouse;

      (iii) Niece or nephew of the employee or the employee's spouse;

      (iv) Brother-in-law or sister-in-law of the employee or the employee's spouse;

      (v) Son-in-law or daughter-in-law of the employee or the employee's spouse;

    (b) The Director may authorize additional use of sick leave if travel away from home overnight is involved.

J. Birth or Adoption of Employee’s Child. An employee who is primarily responsible for the care and nurturing of a child, with the approval of the Director or designee, may use accrued sick leave to care for the child during the period immediately following:

  (1) The birth of the employee’s child; or

  (2) The placement of the child with the employee for adoption.

#### Regulation .13 Compensatory Leave.

*COMAR 14.27.02.13*

A. An executive, administrative, or professional employee, whose classification is not on the list of employees approved by the Board as eligible to receive cash overtime payments, may earn compensatory time for work performed:

  (1) At least 1 hour beyond the employee's standard work day; and

  (2) For more than 1 hour in a day that is outside the employee's standard workweek, for example, on a holiday or a weekend.

B. Total compensatory time earned for the day is equal to the first hour plus any time worked after the first hour.

C. An employee may not carry into a new fiscal year more than 120 hours of unused compensatory time. If, on June 30, an employee has more than 120 hours of unused accumulated compensatory time, then, on July 1, the Service shall reduce the employee's accumulated unused compensatory leave balance to 120 hours.

D. A part-time employee may not carry into a new fiscal year more than the number of unused compensatory leave hours which equals the funded percentage of the employee's position multiplied by 120 hours. For example, if a part-time employee works a 60 percent schedule, then the employee may not carry into the new fiscal year more than 72 unused compensatory leave hours (0.60 x 120). If, on June 30 of a year, a part-time employee has more than the permitted carryover amount of accumulated compensatory leave, then, on July 1, the Service shall reduce the employee's accumulated unused compensatory leave to the permitted carryover amount.

E. An employee's supervisor shall approve compensatory time earned by the employee. Use of compensatory leave is subject to supervisory approval.

#### Regulation .14 Accident Leave.

*COMAR 14.27.02.14*

A. Amount of Paid Accident Leave. The Service may grant up to 24 hours of paid accident leave to an employee beginning on the first day, or any portion thereof, of absence from work because of an accidental personal injury sustained by the employee in the actual performance of the employee’s job duties, and which is determined to be compensable according to the Maryland Workers’ Compensation Law, Labor and Employment Article, Title 9, Annotated Code of Maryland.

B. Advanced Accident Leave. The Service may grant additional advance accident leave, of up to 6 months, to an employee while the employee is awaiting a compensable injury decision from the Service’s Workers’ Compensation insurer or a compensable disability decision from the Service’s disability insurer.

C. Use of Accident Leave.

  (1) The Service shall inform an injured employee or someone on the employee's behalf of the employee's right to file a claim for compensation with the Workers' Compensation Commission.

  (2) If the Workers' Compensation Commission order determines that an employee's injury is not compensable, or in the absence of a Workers' Compensation Commission order, if the Service's Workers' Compensation insurer makes a determination of noncompensability, the Service shall amend the employee's accident leave to leave with pay, or, if the employee does not have leave with pay credited, to leave of absence without pay. The employee shall reimburse the Service for any accident leave received which is not chargeable to leave with pay.

  (3) An employee’s accident leave ends upon the earliest of:

    (a) A physician certifying in writing that the employee is capable of performing the physical tasks required of the employee’s position;

    (b) First receipt by the employee of any compensation from either the Service’s Workers’ Compensation or disability insurer; or

    (c) The end of 6 months or any extension of advance accident leave granted by the Service.

D. Accident Leave Pay.

  (1) The Service shall pay an employee on accident leave or advanced accident leave at a rate which equals 66.666 percent of the employee's base wage rate.

  (2) An employee is not entitled to receive both accident leave pay and compensation from either the Service's Workers' Compensation or disability insurer. If an employee on accident leave is also compensated by the Service's Workers' Compensation or disability insurer, then the use of accident leave by the employee constitutes a debt for which payment is enforceable upon the employee's return to work, and which continues to be enforceable upon the employee's termination of employment with the Service.

  (3) An employee obligated to repay to the Service accident leave under §D(2) of this regulation shall repay advanced accident leave:

    (a) In cash;

    (b) By applying credited annual leave, personal leave, or sick leave to the amount of accident leave owed; or

    (c) By permitting the Service to deduct the amount from a benefit payment made to the employee from the Service's Workers' Compensation or disability insurer.

#### Regulation .15 Other Paid Leave.

*COMAR 14.27.02.15*

A. Holiday Leave.

  (1) The holidays of the Service are:

    (a) New Year's Day—January 1;

    (b) Martin Luther King Jr.'s Birthday—Third Monday in January;

    (c) George Washington's Birthday—Third Monday in February;

    (d) Memorial Day—Last Monday in May;

    (e) Independence Day—July 4;

    (f) Labor Day—First Monday in September;

    (g) Veteran's Day—November 11;

    (h) Thanksgiving Day—Fourth Thursday in November; and

    (i) Christmas Day—December 25.

  (2) If a holiday falls on a Sunday, the Monday immediately following is considered and treated as a holiday. If a holiday falls on a Saturday, the Friday immediately preceding the holiday is considered and treated as the holiday.

  (3) Use of Holiday Leave.

    (a) Except for an employee subject to §A(3)(b) or (4) of this regulation, the Service shall grant an employee paid holiday leave on the holidays listed in §A(1) of this regulation.

    (b) An employee who works at a facility which renders a service that is provided continuously on a 7-day-a-week basis:

      (i) Shall be scheduled for an alternative day of paid leave if the employee is required to work on a holiday; and

      (ii) May not carry into a new fiscal year more than 40 hours of unused holiday leave.

  (4) If, on June 30, an employee has more than 40 hours of unused holiday leave, then, on July 1, the beginning of the new fiscal year, the Service shall reduce the employee's accumulated holiday leave balance to 40 hours.

  (5) Part-Time Employees.

    (a) A part-time employee is entitled to prorated holiday leave based on:

      (i) A percentage of the total leave hours resulting from the number of holidays listed in §A(1) of this regulation; and

      (ii) The funded percentage of the part-time position.

    (b) The Service may grant holiday leave to a part-time employee on the dates listed in §A(1) of this regulation, and the Service may assign holidays to ensure that the holidays taken by the part-time employee do not exceed or are not fewer than the funded percentage of the part-time position.

    (c) A part-time employee may not carry into a new fiscal year more than the number of holiday leave hours which equals the funded percentage of the employee's position multiplied by 40 hours. For example, if a part-time employee works a 60 percent schedule, then the employee may not carry into the new fiscal year more than 24 holiday leave hours (0.60 x 40). If, on June 30 of a year, a part-time employee has more than the permitted carryover amount of accumulated unused holiday leave, then, on July 1, the Service shall reduce the employee's accumulated unused holiday leave to the permitted carryover amount.

B. Repealed.

C. Personal Leave.

  (1) A full-time employee who is employed with the Service on January 1, or who is hired by the Service in the months of January through June, is credited with 4 days of personal leave at the beginning of the first full pay period of the calendar year.

  (2) A full-time employee who is hired by the Service in the months of July or August is entitled to 2 days of personal leave in the calendar year that the employee is hired.

  (3) A full-time employee who is hired by the Service in the months of September or October is entitled to 1 day of personal leave in the calendar year that the employee is hired.

  (4) A full-time employee who is hired by the Service in the months of November or December is not entitled to any personal leave in the calendar year that the employee is hired.

  (5) At the beginning of the first full pay period of a calendar year, a part-time employee is credited with the percentage of 4 days of personal leave equal to the percentage the part-time position is funded. The limitations on personal leave set forth in §C(1)—(4) of this regulation apply to a part-time employee during the calendar year in which a part-time employee is hired.

  (6) An employee may not accumulate unused personal leave and shall forfeit any unused personal leave at the beginning of the first full pay period of the calendar year and at termination of employment.

  (7) Except in the case of an emergency, an employee shall obtain permission from the employee's supervisor before using personal leave.

D. Jury Service Leave. An employee who serves as a member of a jury of a court is permitted to be absent from assigned duties without loss of pay. If, after reporting for jury duty, it is determined that the employee's services are not required and the employee is dismissed from jury duty for the day, then, if time reasonably permits, the employee shall report for work. An employee who is called for jury service shall immediately notify the employee's supervisor. When the public interest requires that the employee not be absent from assigned duties, the supervisor may request the appropriate judge to excuse the employee.

E. Legal Action Leave. An employee who is summoned under a subpoena to appear in a court action by a party other than the Service, before a grand jury, before an administrative agency, or for a deposition, and is neither a party to the action nor a paid witness, may be absent from assigned duties without loss of pay for not more than 1 day. The employee's absence over 1 day may not be paid by the Service unless the employee uses other authorized leave.

F. Time Off for Religious Observances. In accordance with State Personnel and Pensions Article, Title 9, Subtitle 8, Annotated Code of Maryland, and COMAR 17.04.11.16, the Service shall permit an employee to be absent in order for the employee to participate in religious observances. The Board may adopt written policies that provide for exceptions for the efficient operation of the Service.

G. Military. An employee who is a member of the organized militia or the Army, Navy, Air Force, or Marine Reserve shall be entitled to a leave of absence for military training for a period of not more than 15 days annually without loss of pay or charge against any leave.

#### Regulation .16 Family Leave.

*COMAR 14.27.02.16*

Family and medical leave may be used in accordance with the provisions of the Family and Medical Leave Act of 1993, as amended, the implementing federal regulations, and the policies and guidelines adopted by the Service.

#### Regulation .17 Leave Without Pay.

*COMAR 14.27.02.17*

The Service may grant leave without pay to an employee if the:

A. Employee has no credited paid leave; and

B. The Service determines that the employee's use of leave without pay will not unreasonably disrupt the Service's activities.

#### Regulation .18 Performance Appraisal.

*COMAR 14.27.02.18*

A. The Service shall establish an employee performance appraisal process. The employee performance appraisal process may include:

  (1) Employee performance planning;

  (2) Interaction between an employee and the employee's supervisor; and

  (3) Review of an employee's performance.

B. An employee's supervisor shall conduct a performance appraisal of the employee at least once a year. The supervisor shall evaluate the employee on the basis of the employee's performance during the preceding calendar year.

C. The employee performance appraisal process shall:

  (1) Provide a standard method for evaluating employees;

  (2) Specify performance criteria for types of employment positions;

  (3) Be related to the Service's annual planning process;

  (4) Provide at least two types of supervisory review;

  (5) Allow an employee the opportunity for input in the performance appraisal process; and

  (6) Allow an employee to request training or other developmental assistance to improve performance for the next evaluation period.

#### Regulation .19 Position Evaluation.

*COMAR 14.27.02.19*

A. The Service shall periodically evaluate each employment position. The evaluation may:

  (1) Document differences among positions;

  (2) Establish a relative value for the position; and

  (3) Compare the compensation level of the employment position with the compensation level of a similar employment position in a similar labor market.

B. A job evaluation shall include analysis of the following criteria:

  (1) Organizational impact;

  (2) Supervision exercised;

  (3) Internal and external contacts;

  (4) Working conditions; and

  (5) Work requirements.

C. The Service may use a position evaluation to assign a salary grade to an employment position.

D. If the Service reduces the salary grade of an employment position to a lower grade in the salary structure, the Service shall provide an incumbent employee in the employment position with a written explanation for the reduction.

#### Regulation .20 Disciplinary Action.

*COMAR 14.27.02.20*

A. The Service may take disciplinary action for cause against an employee.

B. The Board shall adopt a disciplinary policy. The disciplinary policy may provide for a:

  (1) Warning to an employee;

  (2) Suspension with or without pay;

  (3) Demotion; and

  (4) Termination of employment.

C. The Service may terminate for cause an employee's employment with the Service. The Service may not terminate an employee for cause unless the Service first:

  (1) Notifies the employee in writing of the reasons for the Service's termination; and

  (2) Provides the employee a reasonable opportunity to respond to the Service's written reasons.

D. The Service may terminate an employee in accordance with the terms and conditions of the employee's employment contract.

#### Regulation .21 Employee Grievances.

*COMAR 14.27.02.21*

A. This regulation does not apply to the following:

  (1) Assistant attorneys general and all other attorneys on the staff of the Attorney General assigned to the Service, including the counsel to the Service;

  (2) Individuals who are subject to collective bargaining agreements which include other grievance procedures; and

  (3) Senior management employees of the Service who report directly to the Director.

B. In this regulation, a grievance is a cause of complaint not otherwise provided for by law, regulation, or policy, arising between an employee and the Service over the interpretation and application of Service's regulations, rules, or policies.

C. Grievance Policy.

  (1) The Board shall adopt a grievance policy.

  (2) The grievance policy:

    (a) Shall provide for a multi-step process for resolving an employee's grievance;

    (b) Shall include the opportunity for the employee to submit a written appeal to the Office of Administrative Hearings in accordance with the policy; and

    (c) Shall provide that grievance hearings and related activities be conducted during regular working hours, without loss of pay to the aggrieved employee.

D. An employee may present a grievance free from interference, coercion, restraint, discrimination, or reprisal.

#### Regulation .22 Promotion.

*COMAR 14.27.02.22*

The Service may promote an employee from one employment position to another. A promotion is not effective until approved by the Director.

#### Regulation .23 Transfer.

*COMAR 14.27.02.23*

A. An employee may request a transfer to a different Service program or geographic area. The Service shall consider the employee's request in filling a position vacancy in the Service program or geographic area for which the employee has requested a transfer.

B. The Service may require an employee to accept a transfer only in order to:

  (1) Meet a specific business need;

  (2) Accomplish a bona fide organizational goal;

  (3) Provide reasonable accommodation; or

  (4) Improve operational efficiency.

#### Regulation .24 Layoffs.

*COMAR 14.27.02.24*

The Board shall develop fair and equitable procedures for the layoff of employees.

#### Regulation .25 Training.

*COMAR 14.27.02.25*

A. Financial Assistance. The Service may offer financial assistance to an employee for the cost of completing:

  (1) An advanced education program at a preauthorized, accredited undergraduate or graduate institution;

  (2) Employee job training or development courses; or

  (3) A high school equivalency program.

B. Procedure.

  (1) An employee requesting financial assistance for expenses authorized in §A of this regulation shall:

    (a) Make a formal request to the Human Resources Division in advance of registration;

    (b) Provide justification that the courses are relevant to Service needs; and

    (c) Obtain the approval of the employee's group managing director and the Chief of the Human Resources Division.

  (2) The Service may grant an employee financial assistance up to 100 percent of tuition costs, registration fees, lab fees, and required books, not exceeding the annual dollar limit allowed by the Internal Revenue Service.

  (3) The employee shall secure a passing grade of “C” or better for undergraduate college credit courses and a “B” or better for graduate college credit courses. If a letter grade is not awarded, proof of successful completion of the course or certification shall be provided.

C. An employee who terminates employment with the Service, for any reason, within 1 year of completion of a course for which the Service has provided financial assistance, may be required to reimburse the Service for the entire cost of the assistance provided for a course in which the employee was enrolled during the year.

#### Regulation .26 Employee Organizations.

*COMAR 14.27.02.26*

A. The Service shall permit continuation of the rights of an employee organization in existence on July 1, 1993, to represent Service employees and to collect dues through a check-off system.

B. The Director may allow an employee who belongs to an employee organization to use administrative leave to attend approved organization activities up to 5 days per year.

#### Regulation .27 Transfers to Service Human Resources System.

*COMAR 14.27.02.27*

A. The Service shall permit an employee who is in the State Personnel Management System to transfer to the Service human resources system without a reduction in the employee's current rate of pay.

B. Accumulated Leave.

  (1) The Service shall:

    (a) Permit an employee who is in the State Personnel Management System and who transfers to the Service human resources system to retain some or all of the employee's accumulated annual leave, sick leave, personal leave, or compensatory leave that is unused as of the date the employee transfers to the Service human resources system; or

    (b) Fairly compensate the employee for the value of the annual leave, sick leave, personal leave, or compensatory leave which the employee may not retain.

  (2) The Service shall determine the amount of compensation due an employee under §B(1)(b) of this regulation by multiplying the number of accumulated, unused annual leave, sick leave, personal leave, and compensatory leave days, as converted from hours, by a sum equal to 1/10 of the employee's final biweekly salary as a member of the State Personnel Management System.

  (3) Leave that is retained by an employee who transfers from the State Personnel Management System to the Service human resources system expires in the same manner as leave expires in COMAR 17.04.11.

### Chapter 03 — Procurement

**Authority:** Natural Resources Article, §§3-103 and 3-127, Annotated Code of Maryland

**Administrative History:** Effective date: December 19, 1994 (21:25 Md. R. 2108)

**Administrative History:** Regulation .02C amended effective March 12, 2018 (45:5 Md. R. 288)

**Administrative History:** Regulation .03B amended as an emergency provision effective July 1, 2021 (48:15 Md. R. 592); amended permanently effective September 6, 2021 (48:18 Md. R. 693)

**Administrative History:** Regulation .04 amended effective August 14, 1995 (22:16 Md. R. 1222)

**Administrative History:** Regulation .04C amended effective June 1, 1998 (25:11 Md. R. 822)

**Administrative History:** Regulation .04C amended as an emergency provision effective July 1, 2021 (48:15 Md. R. 592); amended permanently effective September 6, 2021 (48:18 Md. R. 693)

**Administrative History:** Regulation .06 amended effective July 17, 2006 (33:14 Md. R. 1162)

**Administrative History:** Regulation .06B amended effective October 8, 2018 (45:20 Md. R. 919)

**Administrative History:** Regulation .06D amended effective July 5, 2004 (31:13 Md. R. 995); August 17, 2015 (42:16 Md. R. 1056)

**Administrative History:** Regulation .07F amended effective October 8, 2018 (45:20 Md. R. 919)

**Administrative History:** Regulation .07K amended effective July 17, 2006 (33:14 Md. R. 1162)

**Administrative History:** Regulation .11D adopted effective November 14, 2011 (38:23 Md. R. 1422)

#### Regulation .01 Policy.

*COMAR 14.27.03.01*

It is the policy of the Maryland Environmental Service to procure supplies, services, and construction in a cost-effective manner consistent with the best interests of the Service, its clients, its vendors, and the general public.

#### Regulation .02 Scope.

*COMAR 14.27.03.02*

A. This chapter does not apply to the following:

  (1) Reimbursement contracts for which user eligibility and cost are set by law or by rules and regulations;

  (2) Collective bargaining agreements with employee organizations (labor contracts);

  (3) Acquisition of real property or a permanent or temporary interest in real property;

  (4) Contracts with a State agency or a municipality;

  (5) Disposal of real or personal property;

  (6) Procurement for purposes of direct resale or remanufacture and subsequent resale;

  (7) Agreements creating employee-employer relationships;

  (8) A procurement on behalf of a municipality or a client of the Service if the:

    (a) Service estimates that the procurement will exceed $25,000,

    (b) Governing body of the municipality or the client requests the Service to waive its procedures, and

    (c) Board formally assents to waive its procedures; or

  (9) A contract with or by a corporation established under Natural Resources Article, §3-104(y), Annotated Code of Maryland.

B. Except as provided in Regulation .02A of this chapter, this chapter applies to each expenditure of the Service for the acquisition of services, supplies, construction, or professional services.

C. Exemptions.

  (1) The Service is generally exempt from State Finance and Procurement Article, Division II, Annotated Code of Maryland, and the regulations adopted under Division II.

  (2) The Service is not exempt from State Finance and Procurement Article, Title 14, Subtitles 3 and 5, and Titles 16 and 17, Annotated Code of Maryland, or the regulations adopted under those statutes.

#### Regulation .03 Definitions.

*COMAR 14.27.03.03*

A. In this chapter, the following terms have the meanings indicated.

B. Terms Defined.

  (1) “Award” means the decision by the Service to execute a contract.

  (2) “Bid” means a statement of price, terms of sale, and description of supplies, services, or construction offered by a bidder in response to an invitation for bids.

  (3) “Bidder” means a person who submits a bid to the Service.

  (4) “Board” means the Board of Directors of the Service.

  (5) “Construction” means the process of building, altering, repairing, improving, or demolishing any structure, building, or other improvement to real property.

  (6) “Day” means a calendar day.

  (7) “Determination” means a written procurement decision made by an official or employee of the Service which is based upon written findings.

  (8) “Director” means the Executive Director of the Maryland Environmental Service.

  (9) “Emergency” means a sudden and unexpected occurrence or condition which management of the Service could not reasonably foresee and which requires an action to avoid or to mitigate damage to the environment or to health, safety, or welfare.

  (10) “Invitation for bids” means a document used for soliciting bids.

  (11) “Municipality” has the meaning stated in Natural Resources Article, §3-101(h), Annotated Code of Maryland.

  (12) “Person” has the meaning stated in Natural Resources Article, §3-101(j), Annotated Code of Maryland.

  (13) “Procurement” includes all functions that pertain to the process of buying, purchasing, or otherwise obtaining supplies, services, or construction, or leasing personal property as lessee.

  (14) “Procurement officer” means a person authorized by the Director to administer contracts, or to make written determinations and findings with respect to contracts.

  (15) “Professional services” means services provided by attorneys, engineers, architects, financial advisors, physicians, consultants, land surveyors, appraisers, and accountants.

  (16) Proposal.

    (a) “Proposal” means the response by an offeror to a request for proposals to obtain supplies, services, or construction.

    (b) “Proposal” may include, without limitation, an offeror's price, a description of technical expertise, work experience, and other information requested in the solicitation.

  (17) “Request for proposals” means a document used for soliciting proposals from offerors.

  (18) “Respondent” means a bidder or an offeror.

  (19) “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.

  (20) “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.

  (21) “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.

  (22) “Sole source procurement” means a procurement for a requirement that is available from only a single vendor.

  (23) “Solicitation” means an invitation for bids, a request for proposals, or any other method or instrument used to communicate to potential bidders or offerors the Service's procurement needs.

  (24) “Service” means the Maryland Environmental Service.

  (25) “Supplies” means items of purchase which may include office goods, printing, building materials, equipment, parts, motor vehicles, tools, and equipment leases.

#### Regulation .04 Contract Authority.

*COMAR 14.27.03.04*

A. Contract Approval.

  (1) The Director shall approve contracts of the Service.

  (2) The Director may delegate authority to approve a contract of the Service to a Service employee.

  (3) A contract is approved if:

    (a) The Director signs the contract or otherwise expresses the Director's approval of the contract in writing;

    (b) An employee of the Service described in §A(2) of this regulation signs the contract or otherwise expresses that employee's approval in writing; or

    (c) The Board approves the contract as provided in §C of this regulation.

  (4) A Service employee who has not been delegated approval authority by the Director may not approve a contract. Except as provided in this regulation, a contract is not enforceable against the Service if the contract has not been approved by the Director or a Service employee who has been delegated approval authority by the Director.

  (5) Except as provided in Regulation .06D(1) of this chapter:

    (a) The procurement contracts of the Service shall be in writing; and

    (b) An oral contract purporting to bind the Service is not enforceable against the Service.

B. The Director shall report to the Board any contract awarded by the Service that is in an amount exceeding $25,000.

C. Procurement Approval.

  (1) If the Service estimates that a procurement will result in the award of a contract that exceeds $200,000, the Service may obtain the approval of the Board for contract award before distributing a solicitation notice for the procurement.

  (2) The Service shall obtain the approval of the Board before awarding a contract for more than $200,000 if the:

    (a) Procurement was not approved as provided in §C(1) of this regulation; or

    (b) Amount of the contract award exceeds the Service's estimate of the procurement by an amount specified by the Board.

#### Regulation .05 Determinations.

*COMAR 14.27.03.05*

Determinations required by these regulations shall be in writing, signed by the procurement officer, and retained by the Service for not less than 3 years from the date of the determination.

#### Regulation .06 Source Selection.

*COMAR 14.27.03.06*

A. The Service may use the following procurement methods:

  (1) Competitive sealed bidding;

  (2) Competitive proposals;

  (3) Negotiated award after unsatisfactory competitive sealed bidding;

  (4) Intergovernmental cooperative purchasing;

  (5) Sole source procurement; and

  (6) Emergency source selection.

B. Prequalification.

  (1) The Service may require that respondents be prequalified before receipt of bids or proposals.

  (2) If the Service determines that respondents shall be prequalified, then the Service shall establish reasonable prequalification criteria. The criteria shall be clearly set forth in a request for qualifications.

  (3) The Service may require that architectural or engineering respondents submit U.S. Government Standard Form 330, Architect/Engineer and Related Services Questionnaire (SF-330), in order to be prequalified.

C. Notice of Solicitation.

  (1) The Service shall distribute solicitation notices in a reasonable manner sufficient to provide general notice to potential respondents. The Service shall issue solicitation notices in a reasonable time in advance of the date responses are due. The Service may charge reasonable fees for the solicitation documents.

  (2) For a procurement estimated to exceed $25,000, the Service shall publish notice of the solicitation in an appropriate publication at least 10 days before the date bids or proposals are due.

D. Small Procurement.

  (1) For a procurement estimated to be equal to or less than $5,000, the Service may solicit any number of bids or offers orally, and the Service may enter into either written or oral contracts.

  (2) For a procurement estimated to exceed $5,000 and be less than or equal to $15,000, the Service shall, when practical, obtain two or more verbal bids or offers.

  (3) For a procurement estimated to exceed $15,000 and be less than or equal to $25,000, the Service shall, when practical, obtain two or more written bids or offers.

  (4) In determining whether it is practical to obtain multiple bids or offers the Service may consider factors such as availability of vendors, dollar value of the procurement, cost of administering the procurement, and time available to make the procurement including delivery time.

#### Regulation .07 Procurement by Competitive Sealed Bidding.

*COMAR 14.27.03.07*

A. Applicability. This regulation applies to any procurement of the Service except as provided in Regulations .06D and .08 — .11 of this chapter.

B. Invitations for Bids. The Service shall initiate a procurement by competitive sealed bidding by issuing an invitation for bids. The invitation for bids shall include a written bid form based on the specifications, a statement that the bidder agrees to all terms and conditions, provisions and addenda, if any, to the invitation for bids, the time and place of bid opening, and such other information as the Service reasonably considers necessary. The Service may require bidders to submit samples or descriptive literature.

C. Prebid Conferences. The Service may conduct prebid conferences, and may require that attendance by bidders be mandatory.

D. Bid Modifications. A bidder may modify or withdraw a bid before bid opening by submitting written notice to the Service. The Service shall return bid security to a bidder if the bidder withdraws its bid in accordance with this regulation.

E. Late Bids, Late Withdrawals, Late Modifications.

  (1) The Service may not consider a bid, bid withdrawal, or bid modification received after the bid opening time and date, except that the Service may consider a late bid, late withdrawal, or late modification if the delay was substantially caused by the Service. The bidder is solely responsible for timely receipt of its bid.

  (2) A late modification of a successful bid that makes the terms more favorable to the Service may be considered and accepted by the Service at any time before contract award.

F. Receipt and Opening of Bids.

  (1) The Service shall store bids in a secure location before bid opening.

  (2) The Service may not disclose the identity of any bidder before bid opening.

  (3) An employee of the Service shall open bids publicly, read aloud the bids, and record the bids at the date, time, and place set for bid opening in the bid notice. Opened bids shall be available for public inspection to the extent required by General Provisions, Title 4, Subtitle 2, Annotated Code of Maryland. Proprietary information shall be examined by the procurement officer to determine validity of nondisclosure. The Service may not disclose proprietary information submitted by a bidder, except as required by law. Prices, makes, models, catalog numbers, delivery, and payment terms shall be made available for public inspection.

  (4) After bids have been opened, the Service shall prepare a bid tabulation.

  (5) A bidder shall acknowledge receipt of bid addenda.

G. Bid Mistakes.

  (1) The procurement officer may waive technicalities or minor irregularities in a bid.

  (2) Before award, a successful bidder may be permitted to withdraw its bid if the bidder presents clear and convincing evidence to the procurement officer that an error has been made, or if an error is obvious from the face of the bid documents.

  (3) If an error and the intended correction of a bid are evident on the face of the bid documents, the bid shall be corrected and may not be withdrawn.

  (4) After contract award, a mistake in a bid may only be corrected if the Service determines that it would be unconscionable not to permit correction. The Service may not allow any change in price.

H. Bid Evaluation and Award. The contract shall be awarded to the responsible bidder submitting the most favorable responsive bid.

I. Tie Bids. If responsive tie bids are received from two or more responsible bidders, the Service shall award the contract in the same manner as provided in COMAR 21.05.02.14.

J. Conditional Bids. The Service shall reject as nonresponsive any conditional bid.

K. Procurement by Negotiated Award After Unsatisfactory Competitive Sealed Bidding.

  (1) The Service may conduct discussion with bidders if, after bids have been opened:

    (a) All bids are rejected pursuant to Regulation .12 of this chapter;

    (b) All bids submitted result in bid prices in excess of funds available; or

    (c) The procurement officer determines that all prices received are unreasonable as to one or more of the Service's requirements and:

      (i) There are no funds available to permit an award to the responsible bidder submitting the most favorable bid, or

      (ii) A delay resulting from a resolicitation under revised specifications or quantities under competitive sealed bidding would be disadvantageous or not otherwise in the best interest of the Service.

  (2) The Service may request bidders to submit revised bids. The Service may conduct discussions with bidders after revised bids have been submitted if the procurement officer determines that there is a compelling need for further discussions. If there is more than one bidder, then any discussions concerning revised specifications or quantities shall be conducted with all responsible bidders.

#### Regulation .08 Procurement by Competitive Sealed Proposals.

*COMAR 14.27.03.08*

A. Conditions for Use.

  (1) Competitive sealed proposals is the preferred method for the procurement of professional services.

  (2) For any other use of competitive sealed proposals as a procurement method, the procurement officer shall make a determination that:

    (a) Specifications cannot be prepared to support an award on price alone; or

    (b) Competitive sealed bidding is not practicable, or is not advantageous to the Service.

B. Request For Proposals.

  (1) A request for proposals shall include:

    (a) The date, time, and place for submission of proposals;

    (b) The proposal requirements, including price proposals;

    (c) The evaluation factors and relative importance of each; and

    (d) A statement of work or scope of services required by the Service.

  (2) A request for proposals may include other information the Service reasonably determines is necessary.

  (3) The Service may conduct preproposal conferences, and may require that attendance by offerors be mandatory.

C. Receipt of Proposals.

  (1) A proposal, withdrawal, or modification received after the established due date and time at the place designated for receipt of proposals is late and may only be considered in accordance with Regulation .07E of this chapter.

  (2) The Service may not open proposals publicly. The Service may not disclose the contents of a proposal to any person other than a person responsible for evaluating or reviewing the proposal before contract award. Proprietary information shall be examined by the procurement officer to determine validity of nondisclosure. The Service may not disclose proprietary information submitted by an offeror, except as required by law.

  (3) An offeror shall acknowledge receipt of addenda in its proposal.

D. Proposal Evaluation.

  (1) The Service shall evaluate proposals using the evaluation factors set forth in the request for proposals.

  (2) Technical and price proposals shall be evaluated independently of one another.

  (3) The Service may establish a technical evaluation committee to evaluate proposals and make a recommendation of contract award to the Service. The technical evaluation committee may include members who are not employees of the Service.

E. Discussions.

  (1) The Service may conduct discussions with qualified offerors. A qualified offeror is an offeror that submits a proposal that is determined by the procurement officer to be reasonably susceptible of being selected for contract award.

  (2) Discussions are held to:

    (a) Ensure full understanding of the Service's requirements and of the offeror's proposal and ability to perform;

    (b) Obtain the best price for the Service; and

    (c) Facilitate arrival at a contract that is most advantageous to the Service, taking into consideration price and other relevant evaluation factors set forth in the request for proposals.

  (3) The Service shall treat qualified offerors fairly and equally with respect to any opportunity for discussions, negotiations, and clarification of proposals.

F. Best and Final Offers. The procurement officer may permit qualified offerors to revise their initial proposals by submitting best and final offers. The Service may require more than one series of submissions of best and final offers and discussions. If more than one submission of best and final offers is requested, an offeror's immediate previous offer shall be construed as its best and final offer unless the offeror submits a timely notice of withdrawal or another best and final offer.

G. Contract Award. Upon completion of all discussions and negotiations, the procurement officer shall make a determination recommending award of the contract to the responsible offeror whose proposal is determined to be the most advantageous to the Service. The procurement officer shall promptly notify all offerors of the recommended contract award.

H. Debriefing of Unsuccessful Offerors.

  (1) When a contract is to be awarded on some basis other than price alone, an unsuccessful offeror may be debriefed upon the offeror's written request submitted to the procurement officer within 10 days after the offeror has knowledge that the contract is to be awarded to another offeror. Debriefings shall be conducted by a procurement official familiar with the rationale for the selection decision and contract award.

  (2) Debriefing shall:

    (a) Be limited to discussion of the unsuccessful offeror's proposal and may not include any discussion of a competing offeror's proposal;

    (b) Be factual and consistent with the evaluation of the unsuccessful offeror's proposal; and

    (c) Provide information on areas in which the unsuccessful offeror's technical proposal was considered weak or deficient.

  (3) Debriefing may not include discussion or dissemination of the thoughts, notes, or rankings of individual members of an evaluation committee, but may include a summary of the procurement officer's rationale for the selection decision and recommended contract award.

  (4) A summary of the debriefing shall be made a part of the contract file.

#### Regulation .09 Sole Source Procurement.

*COMAR 14.27.03.09*

A. Conditions for Use.

  (1) Sole source procurement is not permissible unless a requirement is available from only a single vendor.

  (2) The determination as to whether a procurement shall be made as a sole source shall be made by the procurement officer, and approved by the Director. The determination and the basis for it shall be in writing. The Service may not award a contract to a sole source before the Director's approval.

B. Confidential Services. The Service may enter into a sole source contract to retain the confidential services of a contractor:

  (1) To advise the Service in connection with threatened or pending litigation; or

  (2) For appraisal of real property contemplated for acquisition by the Service.

#### Regulation .10 Emergency Procurement.

*COMAR 14.27.03.10*

A. Application. The procurement officer, with the prior approval of the Director, may award an emergency contract by other than competitive sealed bidding or competitive sealed proposals under Regulation .07 or .08, respectively, of this chapter.

B. Scope. An emergency procurement is limited to the procurement of those items necessary to avoid or to mitigate damage to the environment or to health, safety, or welfare.

C. Competition. The Service shall reasonably attempt to obtain such competition as is consistent with meeting the time requirements of the emergency.

#### Regulation .11 Contract Award.

*COMAR 14.27.03.11*

A. The procurement officer shall determine whether a respondent is responsible.

B. The procurement officer may find that a respondent is not a responsible bidder or offeror for:

  (1) Unreasonable failure to supply information promptly in connection with a determination of responsibility under this chapter; or

  (2) Any other reason indicating that the respondent does not have the:

    (a) Capability in all respects to perform fully the contract requirement, or

    (b) Integrity and reliability that will ensure good faith performance.

C. The procurement officer shall determine whether a bid or offer is responsive. A responsive bid or offer contains a definite unqualified offer to perform in accordance with the terms of the solicitation.

D. Publication of Award. The Service shall publish notice of award of a procurement in eMaryland Marketplace if the Service has previously published notice of solicitation for the same procurement in eMaryland Marketplace, as set forth in Regulation.06C(2) of this chapter.

#### Regulation .12 Cancellation or Rejection of Solicitations.

*COMAR 14.27.03.12*

A. The Service may cancel a solicitation in whole or in part before opening of bids or proposals when, in the determination of the procurement officer, cancellation is in the best interest of the Service. Bids or proposals shall be returned to the bidders or offerors together with a notice of cancellation.

B. After opening of bids or proposals, the Service may reject all proposals or bids in whole or in part when, in the determination of the procurement officer, rejection is in the best interest of the agency. Notice of rejection of all bids or proposals shall be sent to all vendors that submitted bids or proposals.

C. Determination of the reasons for cancellation or rejection shall be made part of the procurement file.

D. The Service may reject a bid or proposal in whole or in part when it is in the Service's reasonable best interest to do so. Reasons may include, but are not limited to, the following:

  (1) The respondent that submitted the bid or proposal is not responsible;

  (2) The bid or offer is not responsive or the offer is not reasonably susceptible of being selected for award;

  (3) The price is not reasonable; or

  (4) The respondent is debarred or otherwise ineligible for award and the period of debarment or ineligibility has not expired.

E. Opened bids or proposals shall be retained in the procurement file. Unopened bids or proposals shall be returned to the respondent, or otherwise disposed of by the Service.

#### Regulation .13 Disputes.

*COMAR 14.27.03.13*

Disputes arising in the performance of contracts which are not resolved by agreement of the parties shall be decided in writing by an authorized representative of the Director. The decision of the Director's authorized representative is final and conclusive unless, within 10 calendar days of receipt of its copy of the decision, the contractor delivers a written appeal to the Director. In connection with an appeal, the contractor shall be afforded an opportunity to be heard and to offer binding evidence in support of its position. The decision by the Director is binding upon the contractor, and the contractor shall abide by the decision.

### Chapter 04 — Public Information Act Requests

**Authority:** General Provisions Article, §4-201; Natural Resources Article, §3-127; Annotated Code of Maryland

**Administrative History:** Effective date: November 4, 1996 (23:22 Md. R. 1497)

**Administrative History:** Regulation .01 amended effective October 8, 2018 (45:20 Md. R. 919)

**Administrative History:** Regulation .02B amended effective October 8, 2018 (45:20 Md. R. 919)

**Administrative History:** Regulation .03B amended effective October 8, 2018 (45:20 Md. R. 919)

**Administrative History:** Regulation .04 amended effective October 8, 2018 (45:20 Md. R. 919)

**Administrative History:** Regulation .05 amended effective October 8, 2018 (45:20 Md. R. 919)

**Administrative History:** Regulation .06 amended effective October 8, 2018 (45:20 Md. R. 919)

**Administrative History:** Regulation .07 amended effective October 8, 2018 (45:20 Md. R. 919)

**Administrative History:** Regulation .08A, D amended effective October 8, 2018 (45:20 Md. R. 919)

**Administrative History:** Regulation .09 amended effective October 8, 2018 (45:20 Md. R. 919)

#### Regulation .01 General.

*COMAR 14.27.04.01*

This chapter establishes procedures for submitting requests to the Maryland Environmental Service for the inspection or copying of public records under General Provisions Article, §§4-101—4-601, Annotated Code of Maryland.

#### Regulation .02 Definitions.

*COMAR 14.27.04.02*

A. In this chapter, the following terms have the meanings indicated.

B. Terms Defined.

  (1) “Applicant” has the meaning stated in General Provisions Article, §4-101(b), Annotated Code of Maryland.

  (2) “Custodian” has the meaning stated in General Provisions Article, §4-101(d), Annotated Code of Maryland.

  (3) “Director” means the Director of the Maryland Environmental Service or the Director's designee.

  (4) “Official custodian” means the Secretary of the Maryland Environmental Service or the Secretary's designee.

  (5) “Person in interest” has the meaning stated in General Provisions Article, §4-101(g), Annotated Code of Maryland.

  (6) “Public Information Act” means General Provisions Article, §§4-101—4-601, Annotated Code of Maryland.

  (7) “Public Information Act Representative” means the person designated by the Service to receive Public Information Act requests and is named on the Service’s website.

  (8) “Public record” has the meaning stated in General Provisions Article, §4-101(j), Annotated Code of Maryland.

  (9) “Service” means the Maryland Environmental Service.

  (10) “Working day” means each day between the hours of 9 a.m. and 4 p.m. except Saturdays, Sundays, and holidays.

#### Regulation .03 Requests for Records.

*COMAR 14.27.04.03*

A. A person may request to inspect or copy a public record that is in the custody of the Service and which, under the provisions of the Public Information Act, the Service is required to make available to the public.

B. A request for public records shall:

  (1) Be made in writing;

  (2) Be addressed to the Public Information Act Representative or Official Custodian;

  (3) Contain the applicant's name, address, and phone number; and

  (4) Reasonably identify by brief description the specific public record sought.

#### Regulation .04 Response to Request.

*COMAR 14.27.04.04*

A. Responses to a request under the Maryland Public Information Act shall be made in accordance with General Provisions Article, §§4-201—4-302, Annotated Code of Maryland.

B. The custodian shall deny inspection of a public record in accordance with General Provisions Article, §§4-301—4-302, Annotated Code of Maryland.

#### Regulation .05 Notification of Person in Interest.

*COMAR 14.27.04.05*

The custodian, unless otherwise prohibited by law, may notify a person in interest before disclosing the public record. If the custodian denies inspection in accordance with Regulation .04B of this chapter, the custodian may consider the views of the person in interest before granting or denying the request to inspect the public record.

#### Regulation .06 Review of Denial.

*COMAR 14.27.04.06*

A. Review of the denial may be submitted to the Office of the Public Access Ombudsman in accordance with General Provisions Article, §§4-1B-01—4-1B-04, Annotated Code of Maryland.

B. Disputes concerning fees charged by the Service under Regulation .08 of this chapter may be submitted to the Public Information Act Compliance Board in accordance with General Provisions Article, §4-1A-05, Annotated Code of Maryland.

C. An applicant may obtain judicial review in accordance with General Provisions Article, §4-362, Annotated Code of Maryland.

#### Regulation .07 Disclosure Against Public Interest.

*COMAR 14.27.04.07*

If the official custodian believes that inspection of a public record will cause substantial injury to the public interest, the official custodian may deny the Request in accordance with General Provisions Article, §4-343, Annotated Code of Maryland.

#### Regulation .08 Fees.

*COMAR 14.27.04.08*

A. Fee Schedule.

  (1) The Service may charge reasonable fees for services provided under this chapter, as determined from time to time by a resolution of the Service's Board of Directors. As of April 1, 1996, the fees to be charged under this chapter are listed in this section.

  (2) Copies. The fee for each copy is 25 cents per page for every page in excess of 25 pages if reproduction can be made by a photocopying machine within the Service's headquarters. There is no charge for copying the first 25 total pages. When the public record is not amenable to photocopying (for example, punch cards, magnetic tapes, large documents, and microfilm), the fee for reproducing the public record shall be based on the actual cost of reproduction. If the public records total more than 25 pages, the Service shall charge the applicant for the actual cost of labor expenses incurred by the Service for each employee photocopying the public records, including overhead costs at the Service's standard overhead rate.

  (3) Certification of Copies. The Service shall charge a fee of $5 for each public record certified as a true copy, plus 50 cents per page.

  (4) Search, Review, and Record Preparation Fees. The Service shall charge the applicant for the actual cost of labor expenses, including overhead costs at the Service’s standard overhead rate, incurred by the Service for searching or preparing public records for inspection or copying, including staff and attorney review time. The Service may not charge for any labor expenses for the first 2 hours of official or employee time needed to respond to a request for public records or to search or prepare the public records.

  (5) Exception to Fee. The Service may not charge a fee under this regulation if the total amount of the fee due under the request is $10 or less.

  (6) Returned Check Fee. The Service may charge a fee of not less than $25 for a dishonored check returned to the Service.

B. Notwithstanding §A of this regulation, if the fees for copies, printouts, photographs, or certified copies of a public record are specifically prescribed by law other than the Public Information Act or this regulation, the specific fee contained in the law shall determine the amount charged for that record.

C. If the custodian is unable to copy a public record within the Service, the custodian shall make arrangements for the reproduction of the public record at public or private facilities outside the Service. The custodian shall either collect from the applicant a fee which is sufficient to pay the actual cost of reproduction or direct the applicant to pay the cost of reproduction directly to the facility making the copy.

D. Before searching, assembling, and copying a public record, the custodian shall estimate the cost of copying and obtain the agreement of the applicant that the cost for search, preparation, review, and assembly shall be paid. The custodian may demand prepayment of an estimated fee before copying a public record. If the custodian requires prepayment, then the time limitations in this chapter may not begin until the applicant makes full payment.

E. If the applicant requests that copies be mailed or delivered to the applicant, the Director may charge the applicant for the cost of postage or delivery to the applicant.

#### Regulation .09 Waiver or Reduction of Fees.

*COMAR 14.27.04.09*

The Official Custodian may waive or reduce any fee charged under this chapter in accordance with General Provisions Article, §4-206(e), Annotated Code of Maryland.

#### Regulation .10 Time and Location of Inspection.

*COMAR 14.27.04.10*

An applicant may inspect a public record, which the custodian has determined the applicant is entitled to inspect, during a working day. Unless the applicant and the custodian otherwise agree, the public record shall be inspected at the Service's headquarters.