Chapter 08. Procurement
Regulation .01 Policy.LinkCopy Citation
It is the policy of the Canal Place Preservation and Development Authority to procure supplies, services, and construction in a cost-effective manner consistent with the best interests of the Authority, its vendors, and the general public.
Regulation .02 Scope and General Provisions.LinkCopy Citation
A.
This chapter does not apply to:
(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)
Procurements with an agency or unit of the federal government, a State agency or unit, an agency or unit of a local jurisdiction, or an agency or unit of the government of another state;
(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)
An agreement entered into by the Authority to lease real property as lessor; or
(9)
A procurement made on behalf of a local jurisdiction if the:
(a)
Authority estimates that the procurement will exceed $35,000;
(b)
Governing body of the local jurisdiction requests the Authority to waive its procedures; and
(c)
Authority formally assents to waive the Authority's procedures.
B.
Except as provided in §A of this regulation, this chapter applies to each expenditure of the Authority for the acquisition of supplies, services, or construction.
C.
Exemptions.
(1)
The Authority is generally exempt from the provisions of, and the regulation adopted under, State Finance and Procurement Article, Division II, Annotated Code of Maryland.
(2)
The Authority is not exempt from the Minority Business Participation provisions of State Finance and Procurement Article, Title 14, Subtitle 3, Annotated Code of Maryland, or the regulations adopted under those provisions.
D.
Authority to Act.
(1)
Unless otherwise specified in the regulations of this chapter, the Membership of the Authority, the Executive Director, or the Executive Director’s designee may undertake any action, determination, decision, or other exercise of authority that is directed, permitted, or contemplated by the regulations of this chapter.
(2)
The Executive Director may delegate to an employee of the Authority any authority that the regulations of this chapter grant to the Executive Director.
E.
Procurement Records.
(1)
The Authority shall maintain a record for each procurement that includes all solicitations, bids or proposals, determinations, contracts, debriefing records, and other materials pertinent to the procurement.
(2)
The Authority’s record of a procurement shall be available for public inspection as provided for and limited by the Public Information Act, General Provisions Article, Title 4, Annotated Code of Maryland.
(3)
The Authority may not disclose proprietary information submitted to the Authority in response to a solicitation, except as required by law.
Regulation .03 Definitions.LinkCopy Citation
A.
In this chapter, the following terms have the meanings indicated.
B.
Terms Defined.
(1)
"Authority" means the Canal Place Preservation and Development Authority.
(2)
“Award” means the decision by the Authority to execute a procurement contract.
(3)
“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.
(4)
“Bidder” means a person who submits a bid to the Authority.
(5)
“Construction” means the process of building, altering, repairing, improving, or demolishing any structure, building, or other improvement to real property.
(6)
“County” means any one of the 23 counties of the State and the Mayor and City Council of Baltimore, and any of its agencies or instrumentalities.
(7)
“Day” means a calendar day.
(8)
“Determination” means a written procurement decision made by the Authority.
(9)
“Executive Director” means the Executive Director of the Canal Place Preservation and Development Authority.
(10)
“Invitation for bids” means a document used to solicit bids.
(11)
“Local jurisdiction” means a county or municipality.
(12)
“Membership of the Authority” means the Membership of the Canal Place Preservation and Development Authority, as composed in accordance with Financial Institutions Article, §13-1005(a), Annotated Code of Maryland.
(13)
“Municipality” means a municipal corporation in the State subject to the provisions of Article XI-E of the Maryland Constitution, and any of its agencies or instrumentalities.
(14)
“Offeror” means a person who submits a proposal to the Authority.
(15)
“Person” means an individual, receiver, trustee, guardian, personal representative, corporation, partnership, association, unit of government, or any other entity.
(16)
“Procurement” includes all functions that pertain to the process of purchasing or otherwise obtaining supplies, services, or construction.
(17)
Proposal.
(a)
“Proposal” means the response by an offeror to a request for proposals.
(b)
“Proposal” may include, without limitation, an offeror's price, a description of technical expertise or work experience, and other information requested in the solicitation.
(18)
“Request for proposals” means a document used to solicit proposals.
(19)
“Responsible” means capable in all respects of dutifully performing all requirements contained in a solicitation and having the integrity and reliability to assure good faith performance of the procurement contract.
(20)
“Responsive” means conforming in all material respects to the requirements contained in a 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, such as professional services provided by architects, engineers, land surveyors, appraisers, accountants, financial advisors, attorneys, or other professional consultants.
(22)
“Solicitation” means an invitation for bids, a request for proposals, or any other method or instrument used to communicate to potential bidders or offerors a procurement need of the Authority.
(23)
“Supplies” means tangible personal property, printing, or insurance, and related services.
Regulation .04 Contract Approval Authority.LinkCopy Citation
A.
Contract Approval. The authority to approve a procurement contract for the Authority, subject to the requirement of §B of this regulation, rests with:
(1)
The Executive Director for a procurement contract that is less than or equal to $50,000; and
(2)
The Membership of the Authority for a procurement contract that exceeds $50,000.
B.
If the Authority estimates that a solicitation will result in the award of a procurement contract that exceeds $50,000, the Membership of the Authority shall approve the solicitation for the procurement before issuance of the solicitation.
C.
A procurement contract is not effective or enforceable against the Authority unless the procurement contract is:
(1)
Approved as authorized under §A of this regulation;
(2)
In writing, except as provided in Regulation .06F of this chapter regarding small procurements; and
(3)
The Executive Director signs the procurement contract or otherwise expresses in writing the Authority’s approval of the procurement contract.
D.
The Executive Director shall report to the Membership of the Authority on any procurement contract approved by the Executive Director as authorized under §A(1) of this regulation that is in an amount exceeding $25,000.
Regulation .05 Determinations.LinkCopy Citation
A determination required by this chapter shall be in writing and shall be retained by the Authority for not less than 3 years from the date of the determination.
Regulation .06 Methods of Procurement, Source Selection, and Solicitation.LinkCopy Citation
A.
Authorized Methods of Procurement. All procurement contracts entered into by the Authority shall be awarded by one of the following procurement methods:
(1)
Competitive sealed bidding in accordance with Regulation .07 of this chapter;
(2)
Competitive sealed proposals in accordance with Regulation .08 of this chapter;
(3)
Negotiated award after unsatisfactory competitive sealed bidding in accordance with Regulation .07I of this chapter;
(4)
Sole source procurement in accordance with Regulation .09 of this chapter;
(5)
Small procurement in accordance with §F of this regulation; or
(6)
Emergency procurement in accordance with Regulation .10 of this chapter.
B.
Source Selection.
(1)
The Authority may use small procurement for a procurement estimated by the Authority to be less than or equal to $25,000.
(2)
Competitive sealed bidding shall be the preferred method for any procurement estimated by the Authority to exceed $25,000.
(3)
For a procurement estimated by the Authority to exceed $25,000, the Authority may use:
(a)
Competitive sealed proposals if the Authority determines that:
(i)
The procurement does not permit an award based solely on most favorable bid price or most favorable evaluated bid price;
(ii)
Competitive sealed bidding is not practicable; or
(iii)
Competitive sealed bidding is not advantageous to the Authority;
(b)
Negotiated award after unsatisfactory competitive sealed bidding as authorized under Regulation .07I of this chapter;
(c)
Sole source selection as authorized under Regulation .09 of this chapter; or
(d)
Emergency procurement as authorized under Regulation .10 of this chapter.
C.
Prequalification.
(1)
The Authority may require that bidders or offerors be prequalified before submitting bids or proposals.
(2)
If the Authority determines that bidders or offerors shall be prequalified, then the Authority shall establish reasonable prequalification criteria, which shall be clearly set forth in a request for qualifications.
(3)
The Authority may require that architectural or engineering bidders or offerors submit U.S. Government Standard Form 254, Architect/Engineer and Related Services Questionnaire (SF-254), in order to be prequalified.
D.
List of Potential Bidders or Offerors. The Authority is not required to maintain a list of potential bidders or offerors.
E.
Notice of Solicitation.
(1)
For a procurement estimated by the Authority to exceed $50,000, the Authority shall publish a notice of solicitation:
(a)
At least 10 days before the due date identified in the solicitation for receipt of bids or proposals;
(b)
On the Authority’s website; and
(c)
In an appropriate publication.
(2)
For a procurement estimated by the Authority to exceed $25,000, but to be less than or equal to $50,000, the Authority shall publish a notice of solicitation:
(a)
At least 10 days before the due date identified in the solicitation for receipt of bids or proposals;
(b)
On the Authority’s website; and
(c)
If determined necessary by the Authority, by any other reasonable method taking into consideration the nature of the procurement.
(3)
For a procurement estimated by the Authority to exceed $10,000, but to be less than or equal to $25,000, the Authority shall issue a notice of solicitation:
(a)
In a manner reasonably sufficient to provide general notice to potential bidders or offerors; and
(b)
Reasonably in advance of the due date identified in the solicitation for responses to the solicitation.
F.
Small Procurement.
(1)
For a procurement estimated by the Authority to be equal to or less than $10,000, the Authority may:
(a)
Solicit oral bids from any number of bidders; and
(b)
Enter into either a written or an oral procurement contract.
(2)
For a procurement estimated by the Authority to exceed $10,000, but to be less than or equal to $25,000, the Authority shall:
(a)
Solicit bids as required by §E(3) of this regulation; and
(b)
Enter into a written procurement contract.
Regulation .07 Procurement by Competitive Sealed Bidding.LinkCopy Citation
A.
Invitations for Bids. The Authority shall initiate a procurement by competitive sealed bidding by issuing an invitation for bids that includes:
(1)
The procurement specifications;
(2)
A bid form;
(3)
A statement to be executed by the bidder that the bidder agrees to all terms, conditions, and provisions of, and any amendments to, the invitation for bids;
(4)
Instructions on bid submission requirements, including the due date and address for bid submission;
(5)
The time and place of bid opening; and
(6)
Any other instructions or information requirements as the Authority considers necessary.
B.
Prebid Conferences. The Authority may conduct prebid conferences and require the attendance of bidders.
C.
Amendments to Initiations for Bids.
(1)
The Authority may amend an invitation for bids by:
(a)
Publishing the amendment in the same manner that the Authority published the invitation for bids; and
(b)
Delivering the amendment to all prospective bidders known by the Authority to have either received the invitation for bids or expressed an interest in the invitation for bids.
(2)
A prospective bidder who receives delivery of an amendment from the Authority shall acknowledge receipt of the amendment.
D.
Bid Modifications and Withdrawal.
(1)
A bidder may modify or withdraw a bid before bid opening by submitting written notice of modification or withdrawal to the Authority.
(2)
The Authority shall return any bid security to a bidder if the bidder withdraws the bidder’s bid in accordance with this section.
E.
Late Bids, Late Withdrawals, Late Modifications.
(1)
The Authority may not consider a bid, bid withdrawal, or bid modification, received by the Authority after bid opening, except that the Authority may consider a late bid, late withdrawal, or late modification, if the delay was substantially caused by the Authority.
(2)
A late modification of a successful bid that makes the terms more favorable to the Authority may be considered and accepted by the Authority at any time before contract award.
F.
Receipt and Opening of Bids.
(1)
The Authority shall store bids and any bid modifications in a secure location before bid opening.
(2)
The Authority may not disclose the identity of any bidder before bid opening.
(3)
Bid opening shall occur at the date, time, and place identified in the invitation for bids.
(4)
At bid opening, an employee of the Authority shall open bids publicly, read the bids aloud, record the bids, and prepare a bid tabulation.
(5)
The Authority shall reject as nonresponsive any conditional bid.
G.
Bid Mistakes.
(1)
The Authority may waive minor or technical irregularities in a bid if waiver is in the Authority’s best interests.
(2)
Before award, a successful bidder may be permitted to withdraw its bid if the bidder presents clear and convincing evidence to the Authority that:
(a)
An error has been made in the bid; and
(b)
The error is such that, had the error not been made, the bid as submitted would not have included the bid price or other material term.
(3)
If an error, and the intended correction of the error, are evident on the face of the bid documents, the bid shall be corrected and may not be withdrawn.
(4)
After award:
(a)
A mistake in a bid may only be corrected if the Authority determines that it would be unconscionable not to permit correction; and
(b)
The Authority may not allow any change in price.
H.
Bid Evaluation and Award.
(1)
The Authority shall award the procurement contract to the responsible bidder who submits the most favorable bid price or most favorable evaluated bid price.
(2)
If responsive tie bids are received from two or more responsible bidders, the Authority shall award the procurement contract in the same manner as provided in COMAR 21.05.02.14.
I.
Procurement by Negotiated Award After Unsatisfactory Competitive Sealed Bidding.
(1)
The Authority may conduct discussions with bidders if, after bids have been opened:
(a)
All bids are rejected under Regulation .12 of this chapter;
(b)
All bids included a bid price in excess of funds available; or
(c)
The Authority determines that all bid prices received are unreasonable as to one or more of the Authority’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 of specifications or quantities under competitive sealed bidding would be disadvantageous to, or not otherwise in the best interests of, the Authority.
(2)
If any of the circumstances in §I(1) of this regulation occurs, the Authority may:
(a)
Request that the bidders submit revised bids; and
(b)
Conduct discussions with bidders after revised bids have been submitted if the Authority determines that it is in the best interest of the Authority to do so.
(3)
Any discussions conducted under this section concerning revised specifications or quantities shall be conducted with all responsible bidders.
(4)
The Authority shall award the procurement contract under this section to the responsible bidder who offered the most favorable bid price or most favorable evaluated bid price.
Regulation .08 Procurement by Competitive Sealed Proposals.LinkCopy Citation
A.
Request for Proposals. The Authority shall initiate a procurement by competitive sealed proposals by issuing a request for proposals that includes:
(1)
Information concerning proposal submission requirements, including the date, time, and place for submission of proposals;
(2)
Evaluation factors and the relative importance of each;
(3)
A statement of the required scope of work or scope of services and performance schedule; and
(4)
Such other information or requirements as the Authority may determine necessary.
B.
Preproposal Conferences. The Authority may conduct preproposal conferences and require the attendance by offerors.
C.
Amendments to Requests for Proposals.
(1)
The Authority may amend a request for proposals by:
(a)
Publishing the amendment in the same manner that the Authority published the request for proposals; and
(b)
Delivering the amendment to all prospective offerors known by the Authority to have either received the request for proposals or expressed an interest in the request for proposals.
(2)
A prospective offeror who receives delivery of an amendment from the Authority shall acknowledge receipt of the amendment.
D.
Proposal Modification and Withdrawal. An offeror may modify or withdraw a proposal before proposals are due by submitting written notice of modification or withdrawal to the Authority.
E.
Receipt and Opening of Proposals.
(1)
Proposals and modifications of proposals received by the Authority shall be held in a secure place until proposals are due.
(2)
The Authority may open proposals at any time after proposals are due.
(3)
The Authority may not:
(a)
Open proposals publicly; or
(b)
Disclose the contents of a proposal to any person other than a person responsible for evaluating or reviewing the proposal before procurement contract award.
(4)
A proposal, withdrawal of proposal, or modification of proposal, received after proposals are due, is late and may only be considered as provided for bids under Regulation .07E of this chapter.
F.
Proposal Evaluation.
(1)
The Authority shall evaluate proposals:
(a)
Using the evaluation factors set forth in the request for proposals; and
(b)
For a determination of which proposal is most advantageous to the Authority.
(2)
Technical proposals and price proposals shall be evaluated independently.
(3)
The Authority may establish a technical evaluation committee to evaluate proposals and make a recommendation of contract award to the Authority. The technical evaluation committee may include members who are not employees of the Authority.
G.
Discussions.
(1)
As used in this section and in §E of this regulation, a “qualified offeror” is an offeror who submits a proposal in response to a request for proposals that the Authority determines is reasonably susceptible of being selected for award of the procurement contract.
(2)
The Authority may conduct discussions with a qualified offeror to:
(a)
Assure that the offeror has full understanding of the Authority’s requirements;
(b)
Assure that the Authority had full understanding of the offeror’s proposal and ability to perform;
(c)
Negotiate the best price or other contract terms for the Authority; or
(d)
Facilitate a procurement contract that is most advantageous to the Authority, taking into consideration price and other relevant evaluation factors set forth in the request for proposals.
(3)
The Authority shall treat qualified offerors fairly and equally with respect to opportunity for discussions.
H.
Best and Final Offers.
(1)
The Authority may request that each qualified offeror submit a best and final offer if the Authority determines that it is in the Authority’s best interest to do so.
(2)
The Authority may:
(a)
Require more than one series of submissions of best and final offers; and
(b)
Engage in discussions on a best and final offer in accordance with §D of this regulation.
(3)
If the Authority requests more than one submission of best and final offers and an offeror does not submit an offer in response to a request, the offeror’s immediate previous offer shall be considered by the Authority as the offeror’s best and final offer unless the offeror submits a timely notice of withdrawal of that immediate previous offer.
I.
Procurement Contract Award. After completing all discussions and evaluations, the the Authority shall:
(1)
Determine which proposal is most advantageous to the Authority;
(2)
Award the procurement contract based on the determination; and
(3)
After award, promptly notify all unsuccessful offerors.
J.
Debriefing of Unsuccessful Offerors.
(1)
If a procurement contract is awarded on some basis other than price alone, an unsuccessful offeror may, within 10 days of the unsuccessful offeror’s receipt of notification of the award, submit to the Authority a written request for a debriefing from the Authority.
(2)
A debriefing shall:
(a)
Be conducted by an employee of the Authority who is familiar with the Authority’s evaluation and determination on the procurement;
(b)
Be limited to discussion of the unsuccessful offeror’s proposal and the Authority’s evaluation of the proposal;
(c)
Be factual and consistent with the evaluation of the unsuccessful offeror’s proposal; and
(d)
Provide information on areas in which the Authority considered the unsuccessful offeror’s technical proposal to be weak, deficient, or less competitive.
(3)
A debriefing may not include:
(a)
Discussion of a competing offeror’s proposal; or
(b)
Discussion or dissemination of the thoughts, notes, or rankings of individual members of an evaluation committee.
Regulation .09 Sole Source Procurement.LinkCopy Citation
A.
Applicability. The Authority may award a procurement contract to a sole source without competition:
(1)
When a requirement is available from only a single source or vendor; or
(2)
To retain confidential services:
(a)
To advise the Authority in connection with threatened or pending litigation; or
(b)
For the appraisal of real property contemplated for acquisition by the Authority.
B.
Determination. A determination to make a procurement by sole source without competition shall be made by the Executive Director based on a finding that a sole source procurement is in the Authority’s best interest.
Regulation .10 Emergency Procurement.LinkCopy Citation
A.
Applicability. The Authority may award a contract by emergency procurement when:
(1)
There occurs a sudden and unexpected event or condition that the Authority did not reasonably foresee; and
(2)
Due to the constraints of time, procurement by other than competitive sealed bidding or competitive sealed proposals is necessary to avoid or mitigate damage to the environment or to public health, safety, or welfare.
B.
Determination. The determination to make an emergency procurement shall be made by the Executive Director.
C.
Contract Award. When making an award by emergency procurement, the Authority shall:
(1)
Reasonably attempt to obtain competitive bids or proposals consistent with meeting the time requirements of the emergency; and
(2)
Make the award that is most advantageous to the Authority considering the circumstances of the emergency.
Regulation .11 Contract Award and Formation.LinkCopy Citation
A.
The Authority shall award a procurement contract only to an offeror or bidder who is responsible and responsive, as determined by the Executive Director.
B.
The Executive Director may determine that a bidder or offeror is not responsible if the Executive Director finds that the bidder or offeror:
(1)
Unreasonably failed to promptly supply information requested by the Authority in connection with a determination of responsibility; or
(2)
Does not have the:
(a)
Capability in all respects to perform fully the procurement contract requirements; or
(b)
Integrity and reliability that will ensure good faith performance.
C.
A procurement contract shall be:
(1)
In a form acceptable to the Authority; and
(2)
Approved for legal sufficiency by an assistant attorney general of the State.
D.
For a procurement contract that exceeds $10,000, the contract shall contain the provisions required by COMAR 21.07.01—21.07.03, as may be amended or deleted by the Authority as it considers necessary to further the business of the Authority.
Regulation .12 Cancellation of Solicitations and Rejection of Bids and Proposals.LinkCopy Citation
A.
The Authority may cancel a solicitation in whole or in part before opening of bids or proposals when, in the determination of the Executive Director, cancellation is in the best interests of the Authority. 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 Authority may reject all bids or proposals when, in the determination of the Executive Director, rejection is in the best interests of the Authority. Notice of rejection of all bids or proposals shall be sent to all vendors who submitted bids or proposals.
C.
The Authority may reject a bid or proposal in whole or in part when it is in the Authority’s best interest to do so and for reasons that may include, but are not limited to, a determination that:
(1)
The bidder or offeror is not responsible;
(2)
The bid or proposal is not responsive;
(3)
The proposal is not reasonably susceptible to being selected for award;
(4)
A bid or proposal price or other term is not reasonable; or
(5)
The bidder or offeror is debarred or otherwise ineligible for award and the period of debarment or ineligibility has not expired.
Regulation .13 Disputes.LinkCopy Citation
A dispute that arises in the performance of a procurement contract which is not resolved by agreement of the parties shall be decided in writing by the Executive Director. The decision of the Executive Director is final and conclusive unless, within 10 calendar days of receipt of a copy of the decision, the contractor delivers a written appeal to the Executive Director. In connection with an appeal, the contractor shall be given an opportunity to be heard and to offer evidence in support of the contractor’s position. The decision by the Executive Director binds the contractor, and the contractor shall abide by the decision.
Regulation .14 Minority Business Enterprise Policies.LinkCopy Citation
The Authority shall comply with the provisions of State Finance and Procurement Article, Title 14, Subtitle 3, Annotated Code of Maryland, and regulations adopted under those provisions.
Chapter annotations
Authority: Financial Institutions Article, §13-1008(4), Annotated Code of Maryland
History: Effective date: December 18, 1995 (22:25 Md. R. 1964)
History: Regulation .02 amended effective October 23, 2017 (44:21 Md. R. 984)
History: Regulation .02A amended effective June 15, 2009 (36:12 Md. R. 838)
History: Regulation .03B amended effective October 23, 2017 (44:21 Md. R. 984)
History: Regulation .04 amended effective October 23, 2017 (44:21 Md. R. 984)
History: Regulation .04B, C amended effective June 15, 2009 (36:12 Md. R. 838)
History: Regulation .05 amended effective October 23, 2017 (44:21 Md. R. 984)
History: Regulation .06 amended effective October 23, 2017 (44:21 Md. R. 984)
History: Regulation .06D amended effective June 15, 2009 (36:12 Md. R. 838)
History: Regulation .06E amended effective February 28, 2005 (32:4 Md. R. 411); June 15, 2009 (36:12 Md. R. 838)
History: Regulation .07 amended effective October 23, 2017 (44:21 Md. R. 984)
History: Regulation .08 amended effective October 23, 2017 (44:21 Md. R. 984)
History: Regulation .09 amended effective October 23, 2017 (44:21 Md. R. 984)
History: Regulation .10 amended effective October 23, 2017 (44:21 Md. R. 984)
History: Regulation .11 amended effective October 23, 2017 (44:21 Md. R. 984)
History: Regulation .12 amended effective October 23, 2017 (44:21 Md. R. 984)
History: Regulation .13 amended effective October 23, 2017 (44:21 Md. R. 984)