This chapter applies to a public school construction project for building, improvement, supplies, or equipment if it: Exceeds $50,000 and has IAC planning or funding approval; or Requires review by the State Superintendent of Schools under Education Article, §2-303, Annotated Code of Maryland. This chapter does not apply to a project in a building that is not used primarily for the instruction of students, including an office building, warehouse, or vehicle maintenance or repair building. In this chapter, “IAC or its designee” includes “State Superintendent or designee” when State Superintendent approval is required by Education Article, §2-303(f), Annotated Code of Maryland. The State Superintendent or designee may request assistance from the IAC or its designee when reviewing project procurement proposals. Unless otherwise authorized, school construction procurement contracts shall be awarded by one of the following methods: Competitive sealed bidding, including competitive multistep sealed bidding; Quality-based selection; Competitive negotiation; Unsolicited proposals; Intergovernmental cooperative purchasing; Sole source; or Negotiated award after unsatisfactory competitive sealed bidding. Except as this regulation otherwise provides, an LEA shall use competitive sealed bidding. Quality-Based Selection; Competitive Negotiation; Unsolicited Proposals. An LEA may use quality-based selection or competitive negotiation or accept an unsolicited proposal in order to finance or to speed delivery of, transfer risks of, or otherwise enhance the delivery of public school construction. An LEA intending to use quality-based selection or competitive negotiation or to pursue an unsolicited proposal shall: Present a written determination that the circumstances listed in §B(1) of this regulation exist; and Obtain authorization from the IAC or its designee. An LEA may use intergovernmental cooperative purchasing when the circumstances set forth in Regulation .12B of this chapter exist. Sole Source. If the LEA determines that a competitive source selection method cannot be used because there is only one available source for the subject of the procurement, the LEA may award a contract without competition to the sole source. An LEA intending to use sole source selection shall present a written determination that the circumstances listed in §B(1) of this regulation exist. An LEA may use negotiated award after unsatisfactory competitive sealed bidding when the circumstances set forth in Regulation .14A of this chapter exist. IAC or designee authorization to use quality based selection or competitive negotiation or to pursue an unsolicited proposal is distinct from IAC or designee approval of project planning and funding. If the IAC or designee approves the project for use of a competitive negotiation method but does not approve the project for planning, the project may proceed as a locally funded project. The LEA shall obtain State approval of each construction contract. All projects shall comply with State procedures and requirements for educational and design review. A county board is encouraged, consistent with competitive bidding, to use bulk purchasing, bundling, and intergovernmental purchasing. Project Delivery Methods. The requirements of COMAR 14.39.04 apply to procurements conducted in accordance with this chapter. Minority Business Enterprise (MBE). The State’s minority business enterprise program applies to procurements conducted in accordance with this chapter that the State funds in whole or part. Any LEA utilizing State funding for school construction projects shall; Adopt an MBE policy and procedures guiding document; Provide the LEA’s board-adopted MBE policy and any related guiding documents to the IAC annually by a date specified by the IAC; and Certify that all MBE policies are in compliance with the State’s MBE program. Prevailing Wage. To the extent required by law, the State's prevailing wage requirements apply to procurements conducted in accordance with this chapter that the State funds in whole or part. Debriefing and Protests. The LEA shall establish procedures by which unsuccessful bidders and offerors may be debriefed upon written request within a reasonable time by a procurement official familiar with the rationale for the selection decision and contract award. The LEA shall establish procedures by which an interested party may file a protest relating to the solicitation or award of a procurement contract. If a single bid or offer is submitted following appropriate notification and solicitation procedures, the LEA may award the contract to the single bidder or offeror if the bid or offer is determined responsible and responsive. Prequalification. The LEA may establish procedures to ensure that bidders are responsible. The LEA may require a bidder to be prequalified according to LEA procedures before submitting a bid. Invitation for Bids. The invitation for bids shall be used to initiate a competitive sealed bid procurement. The invitation for bids shall include: Instructions and information concerning bid submission requirements including the date, time, and place for receipt of bids; Whether electronic bids will be accepted; Specifications or drawings or both that clearly and accurately describe the functional characteristics of or the nature of the work to be procured; The delivery or performance schedule; MBE goals, if applicable; Prevailing wage requirements, if applicable; Requirement that bidders acknowledge receipt of each amendment and addendum issued; Requirement for submission of bid bond; Information with respect to prebid conference if a conference is to be held; Requirement for submission of bid affidavit; and Any other information the LEA requires. Public Notice. The LEA shall publish notice of an invitation for bid at least 14 calendar days before the bid due date in: eMaryland Marketplace; An electronic posting or a physical posting on the LEA's bid board; or A newspaper of general circulation in the LEA's region. Bid Receipt, Opening, Disclosure. Upon its receipt, each bid shall be stored in a secure place until the time set for bid opening. Bids shall be opened publicly in the presence of at least one LEA employee and read aloud at the time, date, and place designated in the invitation for bids, or are to be made available to the public through a method in accordance with local policy and procurement practice. The name of each bidder, the bid price, and other appropriate information shall be read aloud or otherwise made available. This information shall be recorded at the time of bid opening. The bids shall be tabulated or a bid abstract made. Opened bids shall be available for public inspection at a reasonable time after bid opening and before contract award. Bidders may designate trade secrets, financial data, or other proprietary data as confidential; material so designated shall be readily separable from the bid in order to facilitate public inspection of the nonconfidential portion of the bid. The LEA shall examine the bids to determine the validity of any requests for nondisclosure of trade secrets and other proprietary data identified in writing. All information submitted by bidders is subject to State and local public disclosure laws. IFB Cancellation; Bid Rejection; Irregularities. Before opening of bids, the LEA may cancel the invitation for bids in whole or in part if the LEA determines that the cancellation is fiscally advantageous or otherwise in its best interest. After opening of bids but before award, the LEA may reject all bids in whole or in part if the LEA determines that the rejection is fiscally advantageous or otherwise in its best interest. The LEA may reject any bid in whole or in part if it is in the LEA's best interest to do so. Reasons for rejecting a bid may include that the bidder is not responsible, that the bid is not responsive, that the price is unreasonable, or that the bidder is debarred or otherwise ineligible. Irregularities. Minor; Material; Correction. The LEA may permit a bidder to correct a minor irregularity or may waive a minor irregularity. A minor irregularity is one that is merely a matter of form and not of substance or pertains to an immaterial or inconsequential defect or variation in a bid, the correction or waiver of which would not be prejudicial to other bidders. The LEA may not waive or permit a bidder to correct a defect or variation in a bid that is material as to price, quantity, quality, or delivery. Up to and including the time for bid opening, a bidder may correct a defect or variation with respect to: Bid bond; Acknowledgment of addenda; or MBE submission materials. After bid opening, the LEA may not waive or permit a bidder to correct a defect or variation with respect to these requirements unless the defect or variation is determined to be minor and does not affect the competitiveness of the bid. Bid Evaluation and Award. The LEA shall award the contract to the responsible bidder who provides the best value and conforms to specifications with consideration given to: The quantities involved; The time required for delivery; The purpose for which required; The competency and responsibility of the bidder; The ability of the bidder to perform satisfactory service; The plan for utilization of minority contractors; and The price offered by the bidder. The LEA may not evaluate a bid for any criterion that is not disclosed in the invitation for bids. Single Bidder. If after proper publication of invitation for bid and proper bid opening, the LEA receives one responsive bid, the LEA may: Award the contract to the single responsible bidder; or Reissue the invitation for bid. General. Competitive sealed bidding may be conducted through multistep sealed bidding. Multistep sealed bidding is a multiphase process in which bidders submit a technical offer (statement of qualifications) and a second phase in which those bidders who are determined qualified during the first phase may have price bids considered. Request for Qualifications. The request for qualifications is used to initiate a competitive two-step sealed bid procurement. The request for qualifications shall set forth the factors by which the bidder's qualifications will be evaluated. Evaluation factors shall include: Bidder's understanding of the scope and schedule of the work; Bidder's prior experience with projects of similar size and scope, and if bidder is a joint venture, experience of at least one of the members of the joint venture entity; Bidder's plan for management of the project, and the organizational structure proposed for the project; Experience of bidder's individual staff members with projects of similar size and scope; MBE plan, if applicable; and Other factors that the LEA sets forth. The request for qualifications shall set forth the minimum standards that a bidder shall meet to be found qualified. The request for qualifications may include information concerning the project scope, schedule, MBE, and prevailing wage as the LEA considers appropriate. Public Notice. The LEA shall publish notice of a request for qualification at least 14 calendar days before the technical-offer due date in: eMaryland Marketplace; An electronic posting or a physical posting on the LEA's bid board; or A newspaper of general circulation in the LEA's region. Qualifications Evaluation. The LEA shall evaluate the bidder's qualifications to determine whether the bidder meets the minimum qualification standards. The LEA shall compile a list of bidders that are determined to meet the minimum qualification standards. Only the bidders on that list shall be permitted to submit bids. Interviews may be conducted as a component of the qualifications process. Invitation For Bids. After preparing the list of qualified bidders, the LEA may issue an invitation for bids to all bidders on that list. The invitation for bids shall include: Instructions and information concerning bid submission requirements including the date, time, and place for receipt of bids; Whether electronic bids will be accepted; Specifications, drawings, or both, that clearly and accurately describe the functional characteristics of or the nature of an item to be procured; The delivery or performance schedule; MBE goals, if applicable; Prevailing wage requirements, if applicable; Requirement that bidders acknowledge receipt of each amendment and addendum issued; Requirement for submission of bid bond; Information with respect to pre-bid conference if a conference is to be held; Requirement for submission of bid affidavit; and Any other information the LEA requires. The LEA shall obtain approval from the IAC or its designee before issuing the invitation for bids. Bid Receipt and Opening; Disclosure. Upon receipt, each bid shall be stored in a secure place until the time set for bid opening. Bids shall be opened publicly in the presence of at least one LEA employee and read aloud at the time, date, and place designated in the invitation for bids. The name of each bidder, the bid price, and other appropriate information shall be read aloud or otherwise made available. This information shall be recorded at the time of bid opening. The bids shall be tabulated or a bid abstract made. Opened bids shall be available for public inspection at a reasonable time after bid opening and before contract award. Bidders may designate trade secrets or other proprietary data as confidential; material so designated shall be readily separable from the bid in order to facilitate public inspection of the nonconfidential portion of the bid. The LEA shall examine the bids to determine the validity of any requests for nondisclosure of trade secrets and other proprietary data identified in writing. All information submitted by bidders is subject to State and local public disclosure laws. IFB Cancellation; Bid Rejection; Irregularities. Before opening bids, the LEA may cancel the invitation for bids in whole or in part if the LEA determines that the cancellation is fiscally advantageous or otherwise in its best interest. After opening of bids but before award, the LEA may reject all bids in whole or in part if the LEA determines that the rejection is fiscally advantageous or otherwise in its best interest. The LEA may reject any bid in whole or in part if it is in the LEA's best interest to do so. Reasons for rejecting a bid include that the bidder is not responsible, that the bid is not responsive, that the price is unreasonable, or that the bidder is debarred or otherwise ineligible. Irregularities. Minor; Material; Correction. The LEA may permit a bidder to correct a minor irregularity or may waive a minor irregularity. A minor irregularity is one that is merely a matter of form and not of substance or pertains to an immaterial or inconsequential defect or variation in a bid, the correction or waiver of which would not be prejudicial to other bidders. The LEA may not waive or permit a bidder to correct a defect or variation in a bid that is material as to price, quantity, quality, or delivery. Up to and including the time for bid opening, a bidder may correct a defect or variation with respect to: Bid bond; Acknowledgment of addenda; or MBE submission materials. After bid opening, the LEA may not waive or permit a bidder to correct a defect or variation with respect to these requirements unless the defect or variation is determined to be minor and does not affect the competitiveness of the bid. Bid Evaluation and Award. The LEA shall award the contract to the lowest responsible and responsive bidder whose bid meets the requirements and evaluation criteria set forth in the invitation for bids and is the most favorable bid. The LEA may not evaluate a bid for any criterion that is not disclosed in the invitation for bids. Single Bidder. If after proper publication of invitation for bid and proper bid opening, the LEA receives one responsive bid, the LEA may: Award the contract to the single responsible bidder; or Reissue the invitation for bid. General. Quality-based selection means a method of source selection based on a combination of qualification and cost factors. Request for Proposals. The request for proposals is used to initiate a quality-based selection procurement. The request for proposals shall include: Instructions and information concerning proposal submission requirements including the date, time, and place for receipt of proposals; Whether electronic proposals will be accepted; Specifications, drawings, or both, that clearly and accurately describe the functional characteristics of or the nature of the work to be procured, delivery or performance schedule, and any special instructions; The evaluation factors and an indication of the relative importance of each evaluation factor including price; MBE goals, if applicable; Prevailing wage requirements, if applicable; Information with respect to preproposal conference if a conference is to be held; Requirement for submission of proposal affidavit; Requirement that offerors acknowledge receipt of each amendment and addendum issued; Requirement for submission of bid bond; and Any other information the LEA requires. LEAs may request that qualification factors in the proposal be submitted separately from price information. Public Notice. The LEA shall publish notice of a request for proposals at least 14 calendar days before the proposal due date in: eMaryland Marketplace; An electronic posting or a physical posting on the LEA's bid board; or A newspaper of general circulation in the LEA's region. Proposal Receipt. The LEA shall keep submitted proposals in a secure place until the due date. Proposals may not be opened publicly but shall be opened in the presence of at least two LEA employees. Proposal Disclosure. Offerors shall indicate clearly the portions of their proposals that they consider confidential information. All information submitted by offerors is subject to State and local public disclosure laws. Proposal Evaluation. The LEA shall evaluate the proposal based on the evaluation factors set forth in the request for proposals. Evaluation factors shall include: Offeror's understanding of scope of the work; Offeror's prior experience with projects of similar size and scope, and if offeror is a joint venture, experience for at least one of the members of the joint venture entity; Offeror's plan for management of the project and organizational structure proposed for the project; Experience of offeror's individual staff members with projects of similar size and complexity; MBE plan, if applicable; Other qualification factors that the LEA sets forth; and Price. Interviews may be conducted as a component of the qualification process. IFB Cancellation; Proposal Rejection; Irregularities. Before opening of proposals, the LEA may cancel the request for proposals in whole or in part if the LEA determines that the cancellation is fiscally advantageous or otherwise in its best interest. After opening of proposals but before award, the LEA may reject all proposals in whole or in part if the LEA determines that the rejection is fiscally advantageous or otherwise in its best interest. The LEA may reject any proposal in whole or in part if it is in the LEA's best interest to do so. Reasons for rejecting a proposal include that the offeror is not responsible, that the proposal is not susceptible of award, that the price is unreasonable, or that the offeror is debarred or otherwise ineligible. Irregularities. Minor; Material; Correction. The LEA may permit an offeror to correct a minor irregularity or may waive a minor irregularity. A minor irregularity is one that is merely a matter of form and not of substance or pertains to an immaterial or inconsequential defect or variation in a proposal, the correction or waiver of which would not be prejudicial to other bidders. The LEA may not waive or permit an offeror to correct a defect or variation in a proposal that is material as to price, quantity, quality, or delivery. Up to and including the time for proposal opening, an offeror may correct a defect or variation with respect to: Bid bond; Acknowledgment of addenda; or MBE submission materials. After proposal opening, the LEA may not waive or permit an offeror to correct a defect or variation with respect to these requirements unless the defect or variation is determined to be minor and does not affect the competitiveness of the bid. Evaluation and Award. The LEA may not evaluate a proposal for any criterion that is not disclosed in the request for proposals. The LEA shall award the contract to the offeror whose proposal is, in the LEA's determination, the highest ranked proposal based on the factors contained in the request for proposals including price. Single Offeror. If after proper publication of request for proposal and proper proposal opening, the LEA receives one responsive offer, the LEA may: Award the contract to the single responsible offeror; or Reissue the request for proposal. Definition. In this regulation, the following term has the meaning indicated. Term Defined. Competitive negotiation means a method of source selection that: Permits offerors to demonstrate creativity, experience, and knowledge; Allows offerors to submit proposals that vary widely in scope, cost, and other factors; and Allows negotiating between the LEA and the qualified offerors with the objective that the final proposal be the most advantageous to the LEA. Request for Proposals. The request for proposals is used to initiate a competitive negotiation procurement. The request for proposals shall include: Instructions and information concerning proposal submission requirements including the date, time and place for receipt of proposals; A statement as to whether electronic proposals will be accepted; At a minimum, a general description of the final product or services the LEA seeks; The evaluation factors and an indication of the relative importance of each evaluation factor, including price; A statement that discussions may be conducted with those responsible offerors that submit proposals judged to be in the competitive range, as previously determined by the LEA; MBE goals, if applicable; Prevailing wage requirements, if applicable; Information with respect to preproposal conference if a conference is to be held; Requirement for submission of a proposal affidavit; Requirement that offerors acknowledge receipt of each amendment and addendum issued; Requirement for bid bond, if applicable; and Any other information the LEA requires. The LEA shall obtain authorization from the IAC or its designee before issuing the request for proposals. Public Notice. The LEA shall publish notice of a request for proposals at least 14 calendar days before the proposal due date in: eMaryland Marketplace; An electronic posting or a physical posting on the LEA's bid board; or A newspaper of general circulation in the LEA's region. Proposal Receipt. The LEA shall keep submitted proposals in a secure place until the due date. Proposals are not required to be opened publicly but shall be opened in the presence of at least two LEA employees. Proposal Disclosure. Offerors shall indicate clearly the portions of their proposals that they consider confidential information. All information submitted by offerors is subject to State and local public disclosure laws. Proposal Evaluation. LEAs may interview offerors as part of the evaluation process. The LEA shall evaluate the proposals based on the evaluation factors set forth in the request for proposals. The LEA shall evaluate the technical proposals and price proposals independently of each other. Evaluation factors shall include: Offeror's understanding of scope of the work; Advantages of the offeror's proposal to the LEA and to the public in general; Offeror's prior experience with projects of similar size and scope, and if offeror is a joint venture, experience for at least one of the members of the joint venture entity; Offeror's plan for management of the project, and the organizational structure proposed for the project; Experience of offeror's individual staff members with projects of similar size and scope; Financial resources of team and team members; MBE plan, if applicable; Price; If applicable, process by which operation and maintenance of the facility will be transferred to the LEA; and Other factors that the LEA sets forth. The LEA shall establish a competitive range based on the ratings of each proposal. Price may be a component in the first evaluation phase of the request for proposals, but is not required. The LEA may exclude price as a factor in the first phase of the request for proposals in order to assess the range of conceptual options that are available for a particular project. Negotiations. The primary objective of negotiations is to obtain the most advantageous contract for the LEA. The LEA shall undertake negotiations with each offeror in the competitive range. During negotiations, an offeror may revise its proposal. During negotiations, the LEA may establish a final competitive range. The LEA may limit the number of offerors that are included in the final competitive range. After negotiation, the LEA shall give each offeror in the final competitive range the opportunity for a final proposal revision. Award. The LEA shall select the offeror whose proposal is, in the LEA's determination, the most advantageous to the LEA. Before seeking approval of the award from the local board of education, the LEA shall: Discuss the project in an open meeting; and Notify the public as to when the proposed contract will be brought before the board of education for approval. Following approval of the award by the local board of education, the LEA shall prepare and submit to the IAC or its designee a statement that explains why the proposal is the most advantageous. The explanation shall: Describe the proposed scope of work, including alternative financing arrangements, if applicable; Include a cost schedule, indicating the costs associated with various services to be provided by the vendor or phases of the work, and whether those costs are eligible for State reimbursement; Summarize the evaluation system used to select the offeror; Summarize the apparent successful offeror's proposal; and Describe the MBE plan. Receipt of Unsolicited Proposals; Competing Proposals. If an LEA receives a proposal other than one submitted in response to a solicitation and it determines that it is interested in pursuing the unsolicited proposal, the LEA shall: Publish notice that it has received an unsolicited proposal; Briefly describe the nature of the proposal; Give any other interested offeror at least 28 days to submit a competing proposal after the public notice is issued; and Inform the IAC or its designee of its intention and provide a description of the proposed method to procure the project. The unsolicited proposal and any competing proposals shall be in writing and sufficiently detailed to permit the LEA to determine if it is advantageous and should be the basis for a contract award. Notice. Notices required under this regulation shall be placed in: eMaryland Marketplace; An electronic posting or a physical posting on the LEA's bid board; or A newspaper of general circulation in the LEA's region. If the LEA receives one or more competing proposals, the LEA shall evaluate and negotiate the proposals consistent with Regulations .09F and G of this regulation. Award. The LEA may award a contract that it determines to be advantageous based on an unsolicited proposal or a competing proposal. The LEA shall prepare and submit to the IAC or its designee a statement that explains why the proposal is the most advantageous. The explanation shall: Describe the proposed scope of work or services, including alternative financing if applicable; Include a cost schedule, indicating the costs associated with various services to be provided by the vendor or phases of the work, and whether those costs are eligible for State reimbursement; Summarize the evaluation system used to select the offeror; Summarize the apparent successful offeror's proposal; and Describe the MBE plan, if applicable. Before seeking approval from the Board of Education, the LEA shall: Discuss the project in an open meeting; and Notify the public as to when the proposed contract will be brought before the Board of Education for approval. General. Intergovernmental cooperative purchasing means a method of source selection that permits an LEA to aggregate with other government entities their common requirements for purposes of maximizing economies of scale when soliciting bids or proposals for goods and commodities or to purchase its requirements from another governmental entity's contract if that contract is an intergovernmental cooperative purchasing agreement. An LEA may use the intergovernmental cooperative purchasing method if it determines that the method: Will provide cost benefits, promote administrative efficiencies, or promote governmental cooperation; and Is not intended to avoid competition. Types. An LEA may use the following types of intergovernmental cooperative purchasing method: Pooling, a method that includes the following steps: Each participating governmental entity agrees to procure its respective requirements from the successful bidder or offeror; A lead jurisdiction conducts the procurement on behalf of all participants; and Either a master contract award or awards is made by the lead jurisdiction on behalf of all participants or each participant awards its own contract; and Piggybacking, a method wherein an LEA purchases its requirements from another governmental entity's contract if that contract contains an intergovernmental cooperative purchasing clause. Sole source procurement is permissible if a requirement is available from only a single vendor. Examples of circumstances that might necessitate a sole source procurement are as follows: Only one source exists which meets the requirements; The compatibility of equipment, accessories, or replacement parts is the paramount consideration; A sole vendor's item is needed for trial use or testing; or Public or regulated utility services are to be procured and only one source exists. The LEA shall submit a written sole source justification to the IAC or its designee. General. An LEA may make a negotiated award after unsatisfactory competitive sealed bidding if, after bids have been opened, the LEA: Rejects all bids pursuant to Regulation .07F(2) or .08G(2) of this chapter; and Determines that: Funding does not permit an award to the lowest responsible and responsive bidder; Any delay resulting from a resolicitation with revised specifications under competitive sealed bidding would be fiscally disadvantageous or would not otherwise be in the best interest of the LEA or the State; or Both. Invitation for Revised Bids. The LEA shall: Issue an invitation for revised bids based on revised specifications to the original bidders as promptly as possible; and Require a prompt response. Discussion. Discussion may not be conducted with bidders after revised bids have been submitted unless the LEA determines that there is compelling need for further negotiation. Any discussion concerning revised specifications shall be conducted with all responsible bidders in a fair and equal manner. Award. The LEA shall award the contract to the lowest responsive and responsible bidder whose bid meets the invitation for revised bids. Education Article, §§4-126, 5-112, and 5-303, Annotated Code of Maryland Effective date: May 21, 2007 (34:10 Md. R. 891) Regulation .04C amended effective November 14, 2011 (38:23 Md. R. 1423) COMAR 23.03.03 recodified to be COMAR 14.39.03 under new subtitle, Interagency Commission on School Construction, effective November 4, 2019 (46:22 Md. R. 979) Regulation .01A amended effective November 4, 2019 (46:22 Md. R. 979) Regulation .05 amended effective November 4, 2019 (46:22 Md. R. 979) Regulation .06B, C amended effective November 4, 2019 (46:22 Md. R. 979) Regulation .06D amended effective May 11, 2026 (53:9 Md. R. 414) Regulation .07 amended effective November 4, 2019 (46:22 Md. R. 979) Regulation .09B amended effective November 4, 2019 (46:22 Md. R. 979)